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TASMANIA
__________
WORKERS REHABILITATION AND
COMPENSATION AMENDMENT
(MISCELLANEOUS) BILL 2004
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 4F inserted
4F. Prescribed relationship
6. Section 23A amended (Registrar and deputy registrars of
Tribunal)
7. Part III, Division 1: Heading inserted
Division 1 Entitlement to compensation
8. Sections 27 and 28 repealed
9. Part III, Division 2 inserted
Division 2 Employment connection with State
31A. Employment connection test
31B. Determination of State of connection in workers
compensation proceedings
31C. Determination of State of connection by Tribunal
31D. Recognition of previous determinations of State
of connection
31E. Person not to be compensated twice
10. Section 34 amended (Form of claim for compensation)
[Bill 81]-IX
11. Section 40 amended (Reference of disputed claims for
compensation to Secretary)
12. Section 42 amended (Reference of claims for
compensation to Tribunal)
13. Section 60A amended (Power of Tribunal to make interim
determinations, &c.)
14. Section 67 amended (Amount of compensation in case of
death)
15. Section 67A amended (Weekly payments in case of death)
16. Sections 67B, 67C, 67D, 67E, 67F and 67G inserted
67B. Commencement of weekly payments to
dependants
67C. Timing of weekly payments
67D. Payments in respect of dependent child
67E. Payment not admission of liability in respect of
death of worker
67F. Dispute of liability in respect of death of worker
67G. Failure to dispute liability in respect of death of
worker
17. Section 69 amended (Amount of compensation in case of
incapacity)
18. Section 69B amended (Period for which benefits are
payable)
19. Section 72 amended (Assessment of degree of
impairment)
20. Section 77 amended (Certain questions to be determined
by Tribunal)
21. Section 77AA substituted
77AA. Employer to pay claim or refer it to Tribunal
22. Section 81 amended (Commencement of weekly
payments)
23. Section 81AA amended (Payments not admission of
liability)
24. Section 81A amended (Disputes of liability for weekly
payments and other benefits)
25. Sections 84A and 84B inserted
2
84A. Re-crediting of sick leave during incapacity
84B. Re-crediting of annual recreation leave
26. Section 91 amended (Payment of compensation money to
person entitled and to Public Trustee)
27. Part VIII repealed
28. Section 97 amended (Obligation of employers to insure)
29. Section 125A inserted
125A. Nominal Insurer may assign liabilities
30. Section 138AA amended (Application of Division)
31. Section 138AB amended (Election to claim damages)
32. Part X, Division 3 inserted
Division 3 Choice of law
138AE. Applicable substantive law for work injury
claims
138AF. Claim to which Division applies
138AG. What constitutes injury and employment and
who is employer
138AH. Claim in respect of death included
138AI. Meaning of substantive law
138AJ. Availability of action in another State not
relevant
33. Section 148AA inserted
148AA. Interpretation of Part 12A
34. Section 150A amended (Authorized officers)
35. Schedule 2 amended (Provisions with respect to meetings
of Board)
36. Schedule 9 amended (Savings and transitional provisions
in relation to the Workers Rehabilitation and
Compensation Reform Act 1995 )
37. Schedule 10 amended (Savings and transitional
provisions in relation to Workers Rehabilitation and
Compensation Amendment Act 2000 )
38. Schedule 11 inserted
Schedule 11 Adjacent areas
3
4
WORKERS REHABILITATION AND
COMPENSATION AMENDMENT
(MISCELLANEOUS) BILL 2004
(Brought in by the Minister for Infrastructure, Energy and
Resources, the Honourable Bryan Alexander Green)
A BILL FOR
An Act to amend the Workers Rehabilitation and
Compensation Act 1988
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
Short title
1. This Act may be cited as the Workers Rehabilitation
and Compensation Amendment (Miscellaneous) Act 2004.
Commencement
2. This Act commences on the day on which this Act
receives the Royal Assent.
[Bill 81] 5
s. 3 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
Principal Act
3. In this Act, the Workers Rehabilitation and
Compensation Act 1988* is referred to as the Principal
Act.
Section 3 amended (Interpretation)
4. Section 3 of the Principal Act is amended as follows:
(a) by omitting "(other than a medical
practitioner)" from the definition of "accredited
person" in subsection (1);
(b) by omitting the definition of "Chief Executive"
from subsection (1);
(c) by inserting the following definition after the
definition of "long service leave" in subsection
(1):
"medical assessor" means a medical
practitioner accredited by the
Board for the purposes of
assessing the degree of a worker's
permanent impairment in
accordance with section 72 or 73;
(d) by omitting the definition of "medical
practitioner" from subsection (1) and
substituting the following definition:
"medical practitioner" means a
person who
*No. 4 of 1988
6
2004 Workers Rehabilitation and No. s. 4
Compensation Amendment
(Miscellaneous)
(a) is resident in a State or
Territory of the
Commonwealth and is
entitled to practise as a
medical practitioner in
accordance with the laws of
that State or Territory; or
(b) is not resident in a State or
Territory of the
Commonwealth but who is
entitled to practise as a
medical practitioner under
the laws of another
jurisdiction;
(e) by inserting the following paragraph after
paragraph (f) in the definition of "medical
question" in subsection (1):
(g) a medical service provided or to be
provided to a worker for an injury,
including the adequacy,
appropriateness or frequency of
that service;
(f) by inserting the following definition after the
definition of "Nominal Insurer" in subsection
(1):
"notified dispute" means a claim for
liability disputed under
section 77AA;
(g) by inserting the following definition after the
definition of "second injury scheme" in
subsection (1):
7
s. 5 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
"Secretary" means the Secretary of the
Department;
(h) by inserting the following definition after the
definition of "State" in subsection (1):
"State of connection" means the State
with which the employment of a
worker is connected as determined
under Division 2 of Part III;
(i) by omitting from subsection (2) "For" and
substituting "Subject to section 26A(1) of the
Taxi and Luxury Hire Car Industries Act 1995
and for".
Section 4F inserted
5. After section 4D of the Principal Act, the following
section is inserted in Part I:
Prescribed relationship
4F. A relationship between a certain person, or
class of persons, and an organisation or class of
organisations may, for the purposes of this Act, be
prescribed as a relationship between a worker and
an employer.
Section 23A amended (Registrar and deputy
registrars of Tribunal)
6. Section 23A(1) of the Principal Act is amended by
omitting "Chief Executive" and substituting "Secretary".
8
2004 Workers Rehabilitation and No. s. 7
Compensation Amendment
(Miscellaneous)
Part III, Division 1: Heading inserted
7. Part III of the Principal Act is amended by inserting
the following heading before section 25:
Division 1 Entitlement to compensation
Sections 27 and 28 repealed
8. Sections 27 and 28 of the Principal Act are repealed.
Part III, Division 2 inserted
9. After section 31 of the Principal Act, the following
Division is inserted in Part III:
Division 2 Employment connection with State
Employment connection test
31A. (1) Compensation under this Act is payable
only if this State is the State of connection.
(2) The fact that a worker is outside this State
when injured does not prevent compensation being
payable under this Act.
(3) A worker's employment is connected with
(a) the State where the worker usually
works in the employment; or
(b) if no State, or no single State, is
identified by paragraph (a), the State
where the worker is usually based for
the purposes of the employment; or
9
s. 9 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
(c) if no State, or no single State, is
identified by paragraph (a) or (b), the
State where the employer's principal
place of business in Australia is located.
(4) For a worker working on a ship, if no
State, or no single State, is identified by subsection
(3), the worker's employment is, while working on
the ship, connected with
(a) the State where the ship is registered; or
(b) if the ship is registered in more than one
State, the State where the ship most
recently became registered.
(5) If no State is identified for a worker by
subsection (3) or (4), the worker's employment is
connected with this State if
(a) the worker is in this State when injured;
and
(b) the worker is not entitled to
compensation in relation to the injury
under the workers compensation law of
an external Territory, or a place outside
Australia.
(6) In deciding whether a worker usually
works in a State
(a) regard must be had to the following:
(i) the worker's work history with the
employer over the preceding 12
months;
(ii) the worker's proposed future
working arrangements;
10
2004 Workers Rehabilitation and No. s. 9
Compensation Amendment
(Miscellaneous)
(iii) the intentions of the worker and
employer;
(iv) any period during which the
worker worked in a State or was
in a State for the purposes of
employment, whether or not the
worker is regarded as working or
employed in that State under its
workers compensation law; but
(b) regard must not be had to any
temporary arrangement under which
the worker works in a State for a period
of not longer than 6 months.
(7) Compensation under this Act is not
payable in relation to the employment of a worker
on a ship if the Seafarers Rehabilitation and
Compensation Act 1992 of the Commonwealth
applies to the worker's employment.
(8) The application of this Act in respect of a
seaman is subject to the following modifications:
(a) the notice of injury and the claim for
compensation may, except where the
seaman injured is the master, be served
on the master of a ship as if he or she
were the employer;
(b) in the case of the death of the seaman,
the claim for compensation for the
purposes of section 32(1)(b) is to be made
within 6 months after news of his or her
death has been received by the claimant;
(c) in the case of a ship lost with all hands,
the claim for compensation for the
11
s. 9 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
purposes of section 32(1)(b) is to be made
within 18 months after the date on
which the ship is deemed to have been
lost with all hands.
(9) In this section
"seaman" means a worker who is employed in
any capacity on board a ship by the
owner or charterer of the ship;
"ship" means any kind of vessel used in
navigation by water, however propelled
or moved, and includes all of the
following if used wholly or primarily in
navigation by water:
(a) a barge, lighter or other floating
vessel;
(b) an air-cushioned vehicle, or other
similar craft;
"State", in a geographical sense, includes a
State's relevant adjacent area as
described in Schedule 11.
Determination of State of connection in
workers compensation proceedings
31B. (1) If the question of whether this State is the
State of connection arises in a proceeding before the
Tribunal in relation to a claim for compensation
under this Act, the Tribunal must determine the
State of connection in accordance with section 31A.
12
2004 Workers Rehabilitation and No. s. 9
Compensation Amendment
(Miscellaneous)
(2) Subsection (1) does not apply if there is a
determination of the State of connection that is to be
recognised under section 31D.
Determination of State of connection by
Tribunal
31C. (1) If a claim for compensation under this Act
has been made, a party to the claim may apply to
the Tribunal for a determination of the question of
which State is the State of connection.
(2) On receiving an application, the Tribunal
must determine the State of connection in
accordance with section 31A.
(3) An application may not be made or heard if
there is a determination of the State of connection
that is to be recognised under section 31D.
Recognition of previous determinations of
State of connection
31D. (1) This section applies if a determination of
the State of connection has been made by any of the
following courts or tribunals:
(a) the Tribunal under section 31B or 31C;
(b) a court or tribunal of a State under a
provision of a law of the State
corresponding to section 31B or 31C;
(c) a court of this State or another State in
the course of proceedings on a claim for
damages.
13
s. 9 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
(2) The State determined as mentioned in
subsection (1) is to be recognised for this Act as the
State of connection.
(3) This section does not prevent any appeal
relating to a determination of a court or tribunal
under subsection (1).
(4) If a determination is changed on appeal to
a court, the changed determination is to be
recognised under this section.
Person not to be compensated twice
31E. (1) Compensation under this Act is not
payable in respect of anything to the extent that
(a) compensation has been received under
the laws of a place other than this State;
or
(b) judgment has been obtained against the
employer independently of this Act.
(2) If a person receives compensation under
this Act and, for the same matter, subsequently
(a) receives compensation under the laws of
a place other than this State; or
(b) obtains judgment against the employer
independently of this Act
the person from whom compensation under this Act
is received may, in a court of competent jurisdiction,
sue and recover from the person the amount
described in subsection (3).
14
2004 Workers Rehabilitation and No. s. 10
Compensation Amendment
(Miscellaneous)
(3) The amount that is recoverable under
subsection (2) is the lesser of the following:
(a) the amount of compensation paid under
this Act;
(b) the amount of compensation received
under the laws of a place other than this
State or for which judgment was
obtained independently of this Act.
Section 34 amended (Form of claim for
compensation)
10. Section 34 of the Principal Act is amended as follows:
(a) by inserting in subsection (2) "or
subsection (2A)(b)" after "(b)";
(b) by inserting the following subsection after
subsection (2):
(2A) A claim for compensation by a
dependant under section 67 or 67A is to be
(a) in a form approved by the Board;
and
(b) accompanied by a certificate
signed by a medical practitioner
certifying the date of death.
(c) by inserting in subsection (3) "or
subsection (2A)(b)" after "(b)".
15
s. 11 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
Section 40 amended (Reference of disputed claims
for compensation to Secretary)
11. Section 40 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "Chief
Executive" and substituting "Secretary";
(b) by omitting from subsection (2) "Chief
Executive" and substituting "Secretary";
(c) by omitting from subsection (3) "Chief
Executive" and substituting "Secretary";
(d) by omitting from subsection (4) "Chief
Executive" and substituting "Secretary";
(e) by omitting from subsection (6) "Chief
Executive" and substituting "Secretary".
Section 42 amended (Reference of claims for
compensation to Tribunal)
12. Section 42(1)(d) of the Principal Act is amended by
omitting "Chief Executive" and substituting "Secretary".
Section 60A amended (Power of Tribunal to make
interim determinations, &c.)
13. Section 60A of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) ", whether or not
liability for the claim has been accepted or
disputed" after "it";
16
2004 Workers Rehabilitation and No. s. 13
Compensation Amendment
(Miscellaneous)
(b) by inserting the following subsection after
subsection (1):
(1A) The Tribunal may make an interim
determination, ruling or direction in the
following circumstances:
(a) where a delay by one side of the
proceedings substantially
prejudices the other side;
(b) where a party fails to comply with
a direction of the Tribunal or a
conciliator;
(c) where the Tribunal is otherwise
satisfied that the interests of
justice require it.
(c) by inserting the following subsections after
subsection (2):
(2A) The Tribunal is not to make an
order under subsection (2) in respect of the
provision of a medical service under Part VI
unless it is satisfied that
(a) the service is reasonably
necessary
(i) to prevent a deterioration in
the worker's medical
condition; or
(ii) to promote an early return
to work; or
(iii) to relieve significant pain or
discomfort; and
17
s. 14 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
(b) the total cost of the service will not
exceed $5 000.
(2B) It is not a requirement for the
making of an interim order that the applicant
might otherwise suffer serious or irreparable
harm.
(2C) In determining a rate of weekly
payments for the purposes of an order under
this section, the Tribunal may have regard to
the basic salary if a rate cannot be reasonably
determined by reference to section 69.
Section 67 amended (Amount of compensation in
case of death)
14. Section 67 of the Principal Act is amended by
inserting after subsection (5) the following subsection:
(6) A claim for a lump sum under this section
is to be made in accordance with section 34.
Section 67A amended (Weekly payments in case of
death)
15. Section 67A of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(a) "mainly"
and substituting "partially";
(b) by omitting from subsection (2)(b) "52" and
substituting "78";
(c) by omitting paragraph (c) from subsection (2)
and substituting the following paragraph:
18
2004 Workers Rehabilitation and No. s. 16
Compensation Amendment
(Miscellaneous)
(c) 80% of the weekly payment for the
period exceeding 78 weeks but not
exceeding 2 years from the date of
death.
(d) by omitting from subsection (3) "one year" and
substituting "78 weeks";
(e) by omitting from subsection (3) "70%" and
substituting "80%";
(f) by inserting the following subsection after
subsection (4):
(5) A claim for weekly payments under
this section is to be made in accordance with
section 34.
Sections 67B, 67C, 67D, 67E, 67F and 67G inserted
16. After section 67A of the Principal Act, the following
sections are inserted in Division 1:
Commencement of weekly payments to
dependants
67B. (1) Where an employer receives a claim for
weekly payments under section 67A(1)(a) and the
deceased worker's first pay day after receipt of that
claim
(a) would have been not later than 14 days
after receipt of that claim, the employer
must
(i) if it is reasonably practicable to do
so, commence making weekly
19
s. 16 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
payments to the worker's
dependants on the first pay day; or
(ii) in any other case, commence
making weekly payments to the
worker's dependants not later
than 14 days after receipt of that
claim; or
(b) is later than 14 days after the receipt of
that claim, the employer must
commence making weekly payments of
compensation to the worker's
dependants on that pay day.
(2) An employer who fails to comply with
subsection (1) is guilty of an offence.
Penalty: Fine not exceeding 20 penalty units
and, in the case of a continuing
offence, a further fine not exceeding 5
penalty units for each day during
which the offence continues.
(3) Weekly payments payable under
section 67A(1)(a) are payable
(a) from the date of death of the worker; or
(b) 28 days prior to the date on which the
claim was given to the employer
whichever is the later.
(4) Where an employer receives more than one
claim for weekly payments under section 67A(1)(a),
the amount of the weekly payment is to be divided
equally among those claims unless the Tribunal
determines otherwise.
20
2004 Workers Rehabilitation and No. s. 16
Compensation Amendment
(Miscellaneous)
(5) In this section
"pay day" means the day on which the
deceased worker would have normally
received salary or wages from his or her
employer.
Timing of weekly payments
67C. (1) Weekly payments payable to a dependent
spouse or dependent caring partner of a deceased
worker under this Act are payable on the days on
which, and at the intervals at which, the worker
would normally have been paid salary or wages if
the worker had continued in his or her employment.
(2) Weekly payments payable to a dependent
child under this Act are payable fortnightly, monthly
or quarterly as may be agreed between the
employer, the employer's insurer and the person to
whom the payment is to be made.
(3) An employer required to make weekly
payments must do so in accordance with
subsections (1) and (2).
Penalty: Fine not exceeding 10 penalty units.
Payments in respect of dependent child
67D. Where a child under the age of 18 is entitled to
a weekly payment under section 67A(1)(b), that
payment is payable to
(a) the parent of the child who has custody
of him or her; or
(b) if there is no such parent, the child's
guardian; or
21
s. 16 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
(c) if there is no such parent or guardian,
the person who has day-to-day care and
control of the child and with whom the
child is ordinarily resident.
Payment not admission of liability in respect
of death of worker
67E. (1) Where an employer who has received a
claim for compensation (whether the employer has
accepted liability or not) makes weekly payments
under section 67B, those payments
(a) are not, in any subsequent proceedings
under this Act, to be construed as an
admission of liability; and
(b) are to be taken to be in reduction of the
amount of any liability of the employer
in respect of the death of the worker;
and
(c) subject to subsection (2), are not
recoverable from a dependant of the
worker by the employer; and
(d) are recoverable from the employer's
insurer including any amount payable
by the employer under section 97(1A) or
(1B).
(2) The Tribunal may order that an employer
be entitled to recover from a dependant any weekly
payments made by the employer to him or her if the
Tribunal is satisfied that the dependant's claim for
compensation was fraudulent.
22
2004 Workers Rehabilitation and No. s. 16
Compensation Amendment
(Miscellaneous)
Dispute of liability in respect of death of
worker
67F. (1) If an employer or its licensed insurer
disputes liability to pay compensation by way of
weekly payments under section 67A, the employer or
licensed insurer must, within 28 days of receiving
the claim for compensation in respect of the death of
the worker
(a) serve the dependant or dependants of
the deceased worker with written notice
that the employer disputes liability to
pay weekly payments under section 67A;
and
(b) inform the dependants of the matters
related to the claim that are disputed
and the reasons for disputing liability;
and
(c) refer the matter to the Tribunal.
(2) Where a claim for compensation is referred
to the Tribunal under subsection (1), the Tribunal is
to determine whether a reasonably arguable case
exists concerning the liability of the employer to pay
weekly payments under section 67A.
(3) In determining whether there is a
reasonably arguable case concerning a claim for
compensation under this Division, the Tribunal is to
identify each of the matters relating to that claim
that are in dispute, and in relation to each of those
matters determine whether a reasonably arguable
case exists.
(4) Subject to subsection (7), in any
proceedings in the Tribunal, the employer or the
23
s. 16 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
employer's insurer is prohibited from raising any
issue that it did not raise in a dispute under this
section.
(5) The Tribunal must
(a) if the Tribunal considers that weekly
payments should be made, order the
employer to make weekly payments
from such date as the Tribunal
determines; or
(b) if the Tribunal considers that a
reasonably arguable case exists
concerning the liability of the employer
to pay compensation by way of weekly
payments to a dependant of the
deceased worker, determine that
compensation is not to be paid by the
employer to that dependant.
(6) The fact that the Tribunal has determined
under subsection (5) that weekly payments should
be made is not to be taken into account by the
Tribunal in any other proceedings under this Act.
(7) Notwithstanding that liability has not
been disputed under subsection (1), an employer
who wishes to dispute liability to continue to pay
compensation by way of weekly payments under
section 67A may, at any time after the period
referred to in subsection (1), refer the matter to the
Tribunal.
Failure to dispute liability in respect of death
of worker
67G. Where an employer has received a claim for
compensation in relation to the death of a worker
24
2004 Workers Rehabilitation and No. s. 17
Compensation Amendment
(Miscellaneous)
employed by the employer and the employer does
not, in accordance with section 67F(1), dispute
liability to pay compensation to a dependant of the
deceased worker, the employer is taken to have
accepted liability in respect of that claim including
(a) entitlement to compensation under
section 25; and
(b) dependency or a degree of dependency;
and
(c) entitlement to weekly payments of
compensation or lump sum
compensation.
Section 69 amended (Amount of compensation in
case of incapacity)
17. Section 69(1) of the Principal Act is amended by
omitting "an accredited" and substituting "a".
Section 69B amended (Period for which benefits are
payable)
18. Section 69B of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(a) "incapacity
in aggregate" and substituting "the period of
incapacity";
(b) by omitting from subsection (1)(b) "in
aggregate";
(c) by omitting from subsection (1)(c) "in
aggregate";
25
s. 19 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
(d) by inserting in subsection (3) "or the weekly
rate payment determined under section 69,
whichever is the lesser" after "salary";
(e) by inserting the following subsection after
subsection (5):
(6) In this section
"period of incapacity" means
(a) a period of incapacity for work,
whether partial incapacity, total
incapacity or a combination of
partial incapacity and total
incapacity, starting on the date of
the initial incapacity; and
(b) in the case of separate periods of
incapacity for work resulting from
the same injury, the aggregate of
those periods.
Section 72 amended (Assessment of degree of
impairment)
19. Section 72(1) of the Principal Act is amended by
omitting "made" and substituting "undertaken by a
medical assessor".
Section 77 amended (Certain questions to be
determined by Tribunal)
20. Section 77 of the Principal Act is amended by omitting
", if not settled by agreement,".
26
2004 Workers Rehabilitation and No. s. 21
Compensation Amendment
(Miscellaneous)
Section 77AA substituted
21. Section 77AA of the Principal Act is repealed and the
following section is substituted:
Employer to pay claim or refer it to Tribunal
77AA. (1) Within 28 days after receiving a claim for
payment of an expense under Division 2 of Part VI,
an employer
(a) must pay the expense; or
(b) must
(i) serve the worker with notice in
writing disputing the claim; and
(ii) notify in writing the service
provider who rendered the account
that liability for the expense is
disputed and outline the reasons
why the employer disputes
liability to pay the expense.
(2) A notice disputing a claim is to
(a) state that the employer disputes liability
to pay the expense; and
(b) give the reasons why the employer
disputes liability to pay the expense; and
(c) attach or identify with particularity
such medical or other evidence as the
employer relies on for disputing liability
to pay the expense; and
(d) inform the worker of his right, within 60
days from the date of service of the
27
s. 21 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
notice, to refer the matter to the
Tribunal; and
(e) state whether the employer disputes
(i) only the expense to which the
claim relates; or
(ii) all expenses of a specified kind or
incurred with an identified
provider of medical, hospital,
nursing, constant attendance,
rehabilitation or ambulance
services, or travelling and
maintenance expenses related to
the provision of such services; or
(iii) liability to pay expenses of any
kind whatsoever claimed by the
worker under Division 2 of Part
VI.
(3) Where an employer gives notice disputing
expenses of a kind referred to in subsection (2)(e)(ii),
the employer need not comply with this section in
respect of any claim subsequently received from the
worker for payment of an expense of the same kind,
or incurred with the same provider, as identified in
the notice, until the Tribunal has determined a
matter referred to it by the worker in respect of the
notified dispute.
(4) Where an employer gives notice disputing
expenses of a kind referred to in
subsection (2)(e)(iii), the employer need not comply
with this section in respect of any claim
subsequently received from the worker for payment
of any expense under Division 2 of Part VI until the
28
2004 Workers Rehabilitation and No. s. 22
Compensation Amendment
(Miscellaneous)
Tribunal has determined a matter referred to it by
the worker in respect of the notified dispute.
(5) A worker who is served with notice of
dispute may, within 60 days after the date of
service, refer the matter to the Tribunal.
(6) An employer who fails to give notice
disputing a claim as required by this section is
deemed to have accepted liability to pay the expense
claimed by the worker.
(7) In proceedings before the Tribunal, the
onus of proving that the worker is not entitled to the
payment of the disputed expense lies on the
employer.
Section 81 amended (Commencement of weekly
payments)
22. Section 81 of the Principal Act is amended by omitting
subsection (3) and substituting the following subsection:
(3) Weekly payments payable under this
section are payable from
(a) the date of the incapacity; or
(b) 14 days before the date on which the
claim for compensation was given to the
employer under section 34
whichever is the later.
29
s. 23 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
Section 81AA amended (Payments not admission of
liability)
23. Section 81AA of the Principal Act is amended by
omitting subsection (3) and substituting the following
subsection:
(3) If
(a) pursuant to section 81, an employer
pays compensation to a worker by way of
weekly payments; and
(b) a determination is made under
section 81A(3)(c); and
(c) the employer's liability under section 25
is subsequently determined not to
exist
the employer may deduct from the worker's sick
leave entitlements existing at the time of the
determination referred to in paragraph (c), an
amount up to the amount of those weekly payments.
Section 81A amended (Disputes of liability for
weekly payments and other benefits)
24. Section 81A of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "28" and
substituting "84";
(b) by omitting subsection (2) and substituting the
following subsections:
30
2004 Workers Rehabilitation and No. s. 25
Compensation Amendment
(Miscellaneous)
(2) The referral of a matter to the
Tribunal is to be accompanied by
(a) the prescribed fee; and
(b) all evidentiary material on which
the employer intends to rely at the
hearing of the matter.
(2AA) If an employer fails to lodge
evidentiary material under subsection (2)(b),
the employer may not rely on that material
unless the Tribunal otherwise allows.
(c) by omitting from subsection (2A) "genuine
dispute" and substituting "reasonably
arguable case";
(d) by omitting from subsection (3)(c) "genuine
dispute" and substituting "reasonably
arguable case";
(e) by omitting from subsection (3)(d) "genuine
dispute" and substituting "reasonably
arguable case".
Sections 84A and 84B inserted
25. After section 84 of the Principal Act, the following
sections are inserted in Division 1:
Re-crediting of sick leave during incapacity
84A. Notwithstanding section 69(4)(a), if a worker
takes sick leave for a period and his or her employer
is subsequently found to be liable to pay weekly
payments for that period
31
s. 26 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
(a) the period is taken to be a period during
which the worker was receiving weekly
payments; and
(b) the worker's accrued entitlement to sick
leave is to be amended to take that
period into account.
Re-crediting of annual recreation leave
84B. Notwithstanding section 84, where a worker
takes annual recreation leave during any period in
which his or her entitlement to weekly payments is
pending, including where liability is in dispute, and
his or her employer is subsequently found to be
liable to pay weekly payments for that period
(a) the period is taken to be a period during
which the worker was receiving weekly
payments; and
(b) the worker's accrued entitlement to
annual recreation leave is to be
amended to take that period into
account.
Section 91 amended (Payment of compensation
money to person entitled and to Public Trustee)
26. Section 91(1) of the Principal Act is amended by
inserting "and in section 67D" after "this section".
Part VIII repealed
27. Part VIII of the Principal Act is repealed.
32
2004 Workers Rehabilitation and No. s. 28
Compensation Amendment
(Miscellaneous)
Section 97 amended (Obligation of employers to
insure)
28. Section 97 of the Principal Act is amended as follows:
(a) by omitting subsection (1A) and substituting
the following subsection:
(1A) Subject to subsection (1C), an
employer is not to insure against liability
arising from claims for compensation under
this Act for weekly payments in respect of the
first weekly rate payment payable under
section 69(1) and the first $200 of any other
benefits payable under this Act in respect of
an injury suffered by a worker.
(b) by omitting from subsection (11)
"section 130(1)" and substituting
"section 130(3)".
Section 125A inserted
29. After section 125 of the Principal Act, the following
section is inserted in Division 5:
Nominal Insurer may assign liabilities
125A. (1) The Nominal Insurer may assign to a
person approved by the Minister any of the Nominal
Insurer's liabilities under this Act
(a) absolutely; or
(b) on such terms and conditions as may be
approved by the Minister.
33
s. 30 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
(2) If a liability is assigned absolutely, the
Nominal Insurer's responsibility for the discharge of
the liability ceases and that responsibility becomes
the responsibility of the person to whom the liability
is assigned.
Section 138AA amended (Application of Division)
30. Section 138AA of the Principal Act is amended as
follows:
(a) by inserting in subsection (1)(a) "or statutory
duty" after "contract";
(b) by inserting in subsection (2) "or statutory
duty" after "contract";
(c) by inserting the following subsections after
subsection (3):
(4) This Division extends to an
employer's liability for a breach of statutory
duty by a worker where the employer would
have been liable for damages if the employer
had committed the breach.
(5) This Division does not apply to an
action by a worker for damages for trespass, or
any other cause of action for which the
employer is not vicariously liable, committed
against the worker by a person
(a) employed by the employer under a
contract of service at the time the
injury was suffered; or
34
2004 Workers Rehabilitation and No. s. 31
Compensation Amendment
(Miscellaneous)
(b) otherwise deemed to be a worker
employed by the employer at that
time.
Section 138AB amended (Election to claim damages)
31. Section 138AB(5) of the Principal Act is amended by
omitting "weekly payments first became payable under
this Act" and substituting "the claim for compensation is
given to the employer of the worker, or person designated
by the employer, under section 34".
Part X, Division 3 inserted
32. After section 138AD of the Principal Act, the following
Division is inserted in Part X:
Division 3 Choice of law
Applicable substantive law for work injury
claims
138AE. (1) If there is an entitlement to
compensation under the statutory workers
compensation scheme of a State in respect of an
injury to a worker (whether or not compensation has
been paid) the substantive law of that State is the
substantive law that governs
(a) whether or not a claim for damages in
respect of the injury can be made; and
(b) if it can be made, the determination of
the claim.
35
s. 32 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
(2) This Division does not apply if
compensation is payable in respect of the injury
under the statutory workers compensation scheme
of more than one State.
(3) For the purposes of this section,
compensation is considered to be payable under a
statutory workers compensation scheme of a State in
respect of an injury if compensation in respect of it
(a) would have been payable but for a
provision of the scheme that excludes
the worker's right to compensation
because the injury is attributable to any
conduct or failure of the worker that is
specified in that provision; or
(b) would have been payable if a claim for
that compensation had been duly made,
and (where applicable) an election to
claim that compensation (instead of
damages) had been duly made.
(4) A reference in this section to compensation
payable in respect of an injury does not include a
reference to compensation payable on the basis of
the provisional acceptance of liability.
Claim to which Division applies
138AF. (1) This Division applies only to a claim for
damages or recovery of contribution brought against
a worker's employer in respect of an injury that was
caused by
(a) the negligence or other tort (including
breach of statutory duty) of the worker's
employer; or
36
2004 Workers Rehabilitation and No. s. 32
Compensation Amendment
(Miscellaneous)
(b) a breach of contract by the worker's
employer.
(2) This Division also applies to a claim for
damages or recovery of contribution brought against
a person other than a worker's employer in respect
of an injury if
(a) the worker's employment is connected
with this State; and
(b) the negligence or other tort or the
breach of contract on which the claim is
founded occurred in this State.
(3) Subsections (1)(a) and (2) apply even if
damages resulting from the negligence or other tort
are claimed in an action for breach of contract or
other action.
(4) A reference in this Division to a worker's
employer includes a reference to
(a) a person who is vicariously liable for the
acts of the employer; and
(b) a person for whose acts the employer is
vicariously liable.
What constitutes injury and employment and
who is employer
138AG. For the purposes of this Division
(a) "injury" and "employer" include
anything that is within the scope of a
corresponding term in the statutory
37
s. 32 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
workers compensation scheme of
another State; and
(b) the determination of what constitutes
employment or whether or not a person
is the worker's employer is to be made
on the basis that those concepts include
anything that is within the scope of a
corresponding concept in the statutory
workers compensation scheme of
another State.
Claim in respect of death included
138AH. For the purposes of this Division, a claim
for damages in respect of death resulting from an
injury is to be considered as a claim for damages in
respect of the injury.
Meaning of substantive law
138AI. In this Division
"a State's legislation about damages for a
work-related injury" means
(a) for this State, this Part and any
other provision of this Act
providing for the interpretation of
anything in this Part; and
(b) for any other State, any provisions
of a law of that State that is
declared by the regulations to be
the State's legislation about
damages for a work-related injury;
38
2004 Workers Rehabilitation and No. s. 32
Compensation Amendment
(Miscellaneous)
"substantive law" includes
(a) a law that establishes, modifies or
extinguishes a cause of action or a
defence to a cause of action; and
(b) a law prescribing the time within
which an action must be brought
(including a law providing for the
extension or abridgment of that
time); and
(c) a law that provides for the
limitation or exclusion of liability
or the barring of a right of action if
a proceeding on, or arbitration of,
a claim is not commenced within a
particular time limit; and
(d) a law that limits the kinds of
injury, loss or damage for which
damages or compensation may be
recovered; and
(e) a law that precludes the recovery
of damages or compensation or
limits the amount of damages or
compensation that can be
recovered; and
(f) a law expressed as a presumption,
or rule of evidence, that affects
substantive rights; and
(g) a provision of a State's legislation
about damages for a work-related
injury, whether or not it would be
otherwise regarded as procedural
in nature
39
s. 33 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
but does not include a law prescribing rules for
choice of law.
Availability of action in another State not
relevant
138AJ. (1) It makes no difference for the purpose of
this Division that, under the substantive law of
another State
(a) the nature of the circumstances is such
that they would not have given rise to a
cause of action had they occurred in that
State; or
(b) the circumstances on which the claim is
based do not give rise to a cause of
action.
(2) In this section
"another State" means a State other than
the State with which the worker's
employment is connected.
Section 148AA inserted
33. Before section 148A of the Principal Act, the following
section is inserted in Part 12A:
Interpretation of Part 12A
148AA. In this Part
"Director" means the Director of Industry
Safety appointed under section 33 of the
Workplace Health and Safety Act 1995.
40
2004 Workers Rehabilitation and No. s. 34
Compensation Amendment
(Miscellaneous)
Section 150A amended (Authorized officers)
34. Section 150A of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "Chief
Executive" and substituting "Secretary";
(b) by omitting from subsection (2) "Chief
Executive" and substituting "Secretary";
(c) by omitting from subsection (3) "Chief
Executive" and substituting "Secretary";
(d) by omitting from subsection (4) "Chief
Executive" and substituting "Secretary".
Schedule 2 amended (Provisions with respect to
meetings of Board)
35. Clause 3 of Schedule 2 to the Principal Act is amended
by omitting "and the chairperson or the person acting in
the office of chairperson, as the case may be, has a
deliberative vote and, in the event of an equality of votes,
also has a casting vote".
Schedule 9 amended (Savings and transitional
provisions in relation to the Workers Rehabilitation
and Compensation Reform Act 1995 )
36. Clause 9 of Schedule 9 to the Principal Act is amended
by omitting "Chief Executive" and substituting
"Secretary".
41
s. 37 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
Schedule 10 amended (Savings and transitional
provisions in relation to Workers Rehabilitation
and Compensation Amendment Act 2000 )
37. Clause 9 of Schedule 10 to the Principal Act is
amended by omitting "Chief Executive" and substituting
"Secretary".
Schedule 11 inserted
38. After Schedule 10 to the Principal Act, the following
Schedule is inserted:
SCHEDULE 11 ADJACENT AREAS
Section 31A(9)
Interpretation
1. In this Schedule
"continental shelf" has the same meaning as
in section 3(1) of the Seas and
Submerged Lands Act;
"Petroleum (Submerged Lands) Act"
means the Petroleum (Submerged
Lands) Act 1967 of the Commonwealth;
"Seas and Submerged Lands Act" means
the Seas and Submerged Lands Act 1973
of the Commonwealth;
"territorial sea" has the same meaning as in
section 3(1) of the Seas and Submerged
Lands Act.
42
2004 Workers Rehabilitation and No. s. 38
Compensation Amendment
(Miscellaneous)
Adjacent areas for States and the Northern
Territory
2. (1) The adjacent area for New South Wales,
Victoria, South Australia or Tasmania is
(a) the part of the area described in
Schedule 2 to the Petroleum (Submerged
Lands) Act for the relevant State that is
within the outer limits of the continental
shelf; and
(b) the space above and below that area.
(2) The adjacent area for Queensland is
(a) the part of the area described in
Schedule 2 to the Petroleum (Submerged
Lands) Act for Queensland that is
within the outer limits of the continental
shelf; and
(b) the Coral Sea area, within the meaning
of section 5A(7) of the Petroleum
(Submerged Lands) Act, other than the
territorial area within the Coral Sea
area; and
(c) the areas within the outer limits of the
territorial sea adjacent to certain islands
of Queensland as determined by
proclamation on 9 February 1983 under
section 7 of the Seas and Submerged
Lands Act; and
(d) the space above and below the areas
described in paragraphs (a), (b) and (c).
(3) The adjacent area for Western Australia is
the part of the area described in Schedule 2 to the
43
s. 38 No. Workers Rehabilitation and 2004
Compensation Amendment
(Miscellaneous)
Petroleum (Submerged Lands) Act for Western
Australia that
(a) is within the outer limits of the
continental shelf, including the space
above and below the area; and
(b) is not within Area A of the Zone of
Cooperation.
(4) The adjacent area for the Northern
Territory is
(a) the part of the area described in
Schedule 2 to the Petroleum (Submerged
Lands) Act for the Northern Territory
that
(i) is within the outer limits of the
continental shelf; and
(ii) is not within Area A of the Zone of
Cooperation; and
(b) the adjacent area for the Territory of
Ashmore and Cartier Islands, within the
meaning of section 5A(3) of the
Petroleum Submerged Lands Act, other
than the territorial sea within that area;
and
(c) the space above and below the areas
described in paragraphs (a) and (b).
(5) The adjacent area for a State or the
Northern Territory does not include any area inside
the limits of a State or Territory.
44 Government Printer, Tasmania