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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Workers' Compensation Legislation
Amendment Bill 2005
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Amendments to Workers'
Compensation Reform Act 2004
3. The Act amended 3
4. Section 10 repealed 3
5. Section 101 amended 3
6. Section 120 amended 3
7. Section 184 amended 3
Part 3 -- Amendments to Workers'
Compensation and Injury
Management Act 1981
Division 1 -- Preliminary
8. The Act amended 4
Division 2 -- Deemed worker amendments
9. Section 10A replaced and transitional provision 4
10A. Working directors 4
10. Section 93B amended 6
11. Section 160 amended 6
12. Section 160A inserted 7
160A. Insurance in respect of working directors 7
13. Section 175AA inserted 8
175AA. Certain persons deemed workers 8
073--1B page i
Workers' Compensation Legislation Amendment Bill 2005
Contents
14. Section 303A inserted 11
303A. Making employment conditional on
avoidance arrangement 11
15. Schedule 1 amended 11
Division 3 -- Miscellaneous amendments
16. Section 31H amended 13
17. Section 72A amended 13
18. Section 146H amended 13
19. Section 146O amended 14
20. Section 165 amended 14
21. Section 174 amended 14
22. Section 180 amended 14
23. Section 198 amended 15
24. Section 219 amended 15
25. Section 231 amended 15
26. Section 241 amended 15
27. Section 247 amended 15
28. Section 277 amended 15
29. Schedule 1 amended 16
Part 4 -- Death benefit amendments
30. Section 5 amended and transitional provision 17
Part 5 -- Court of Appeal
amendments
31. Acts Amendment (Court of Appeal) Act 2004
amended 18
32. Workers' Compensation and Injury Management
Act 1981 amended 18
page ii
Western Australia
LEGISLATIVE ASSEMBLY
Workers' Compensation Legislation
Amendment Bill 2005
A Bill for
An Act to --
· amend the Workers' Compensation and Injury Management
Act 1981; and
· amend the Workers' Compensation Reform Act 2004,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Workers' Compensation Legislation Amendment Bill 2005
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Workers' Compensation Legislation Amendment Act
2005.
5 2. Commencement
(1) Subject to subsections (2) and (3) --
(a) this Act comes into operation on the day on which it
receives the Royal Assent; and
(b) Part 3 comes into operation immediately after the
10 coming into operation of Part 2.
(2) Section 30(1) and (2) are deemed to have come into operation
on 1 July 2005.
(3) If this Act receives the Royal Assent on or before
14 November 2005, section 7 and Parts 3 and 5 come into
15 operation on 14 November 2005, immediately after the coming
into operation of section 130 of the Workers' Compensation
Reform Act 2004.
page 2
Workers' Compensation Legislation Amendment Bill 2005
Amendments to Workers' Compensation Reform Act 2004 Part 2
s. 3
Part 2 -- Amendments to Workers' Compensation
Reform Act 2004
3. The Act amended
The amendments in this Part are to the Workers' Compensation
5 Reform Act 2004*.
[* Act No. 42 of 2004.]
4. Section 10 repealed
Section 10 is repealed.
5. Section 101 amended
10 Section 101(4)(a) is deleted.
6. Section 120 amended
Section 120(1) is repealed.
7. Section 184 amended
After section 184(4) the following subsection is inserted --
15 "
(5) Without limiting sections 84ZP and 115 of the
principal Act as in force on 13 November 2005, a
compensation magistrate's court acting under this
section may remit a matter to an arbitrator for
20 determination, with or without any direction.
".
page 3
Workers' Compensation Legislation Amendment Bill 2005
Part 3 Amendments to Workers' Compensation and Injury
Management Act 1981
Division 1 Preliminary
s. 8
Part 3 -- Amendments to Workers' Compensation and
Injury Management Act 1981
Division 1 -- Preliminary
8. The Act amended
5 (1) The amendments in this Part are to the Workers' Compensation
and Injury Management Act 1981* as amended by the Workers'
Compensation Reform Act 2004**.
(2) References in this Part to provisions of the Workers'
Compensation and Injury Management Act 1981* are references
10 to those provisions as amended and renumbered by the
Workers' Compensation Reform Act 2004**.
[* Reprinted as at 14 September 2001.
For subsequent amendments see Western Australian
Legislation Information Tables for 2004, Table 1, p. 507-08.
15 **Act No. 42 of 2004.]
Division 2 -- Deemed worker amendments
9. Section 10A replaced and transitional provision
(1) Section 10A is repealed and the following section is inserted
instead --
20 "
10A. Working directors
(1) In this section --
"company" means a company as defined in
section 5(1) other than a public company as that
25 term is defined in the Corporations Act 2001 of
the Commonwealth;
"corporate body" has the same meaning as
"company" in section 5(1);
page 4
Workers' Compensation Legislation Amendment Bill 2005
Amendments to Workers' Compensation and Injury Part 3
Management Act 1981
Deemed worker amendments Division 2
s. 9
"director" has the meaning given to that term in the
Corporations Act 2001 of the Commonwealth;
"earnings" means wages, salary and other
remuneration;
5 "working director", in relation to a company, means a
director of the company, whether or not the
director would be a worker if this section did not
apply --
(a) who executes work for or on behalf of the
10 company; and
(b) whose earnings as a director of the company
by whatever means are in substance for
personal manual labour or services.
(2) Despite anything in section 5, a director of a corporate
15 body is not a worker of that corporate body for the
purposes of this Act unless this section makes the
director a worker.
(3) A company may apply to an approved insurance office
under section 160(2) on the basis that a working
20 director of the company is a worker.
(4) If a company complies with section 160 in respect of a
working director of the company on the basis that the
director is a worker, then, for the purposes of this
Act --
25 (a) the director is a worker; and
(b) the company is the employer of the director.
(5) Subsection (4) ceases to apply if the circumstances
described in subsection (7) arise.
(6) If a company that is an employer is, or is one of a
30 group of employers that is, exempt under section 164,
then, for the purposes of this Act --
(a) a director of the company who is a working
director is a worker; and
page 5
Workers' Compensation Legislation Amendment Bill 2005
Part 3 Amendments to Workers' Compensation and Injury
Management Act 1981
Division 2 Deemed worker amendments
s. 10
(b) the company is the employer of the director.
(7) If a company (other than a company that is, or is one of
a group of employers that is, exempt under
section 164) does not comply with section 160 on the
5 basis that a working director of the company is a
worker, then, for the purposes of this Act, the working
director is not a worker.
(8) Subsection (7) does not prevent the company from
applying as described in subsection (3), and
10 subsection (7) ceases to apply if the circumstances
described in subsection (4) arise.
".
(2) Nothing in this section affects or limits the operation of the
Workers' Compensation and Injury Management Act 1981 in
15 relation to a director of a company if that director, at any time
before the coming into operation of this section, received, or
was entitled to receive, compensation under that Act, and for
that purpose that Act continues to apply in relation to the
director as if this section had not been enacted.
20 10. Section 93B amended
Section 93B(5) is amended by inserting after "section 175" --
" or 175AA ".
11. Section 160 amended
After section 160(2a) the following subsection is inserted --
25 "
(2b) After the termination of the period referred to in
subsection (2), an employer referred to in
subsection (2a) is to furnish to the insurance office --
(a) a statement of the aggregate amount of the
30 wages, salary and other remuneration paid in
fact during that period to the director; and
page 6
Workers' Compensation Legislation Amendment Bill 2005
Amendments to Workers' Compensation and Injury Part 3
Management Act 1981
Deemed worker amendments Division 2
s. 12
(b) supporting particulars to verify the aggregate
amount stated.
".
12. Section 160A inserted
5 After section 160 the following section is inserted --
"
160A. Insurance in respect of working directors
(1) If a dispute arises between an employer that is a
company requesting insurance from an insurance office
10 and the insurance office as to whether a person is a
working director of the company, the employer or
insurance office may apply to have the question
determined by an arbitrator.
(2) An insurance office that has issued a policy or contract
15 of insurance to a company that is an employer in
respect of a working director pursuant to an application
as described in section 10A(3) cannot decline to
indemnify the employer in respect of a liability of the
employer for the director on the basis that the director
20 is not a worker, or that the company is not the
employer of the director, unless an arbitrator
determines that --
(a) a representation made by the company in
respect of the director when applying for the
25 issue of a policy or contract of insurance in
respect of that director was false or misleading
in a material particular; and
(b) the decision of the insurance office to issue a
policy or contract of insurance in respect of the
30 director was materially affected by that
representation.
".
page 7
Workers' Compensation Legislation Amendment Bill 2005
Part 3 Amendments to Workers' Compensation and Injury
Management Act 1981
Division 2 Deemed worker amendments
s. 13
13. Section 175AA inserted
After section 175 the following section is inserted in Part X
Division 2 --
"
5 175AA. Certain persons deemed workers
(1) For the purposes of this section, a person ("W")
executes work for another person ("E") under an
avoidance arrangement if --
(a) the work is executed under an arrangement that
10 is contrived to enable E to have the benefit of
W's services without having liabilities and
duties as W's employer under this Act;
(b) the arrangement was entered into on or after the
coming into operation of section 13 of the
15 Workers' Compensation Legislation
Amendment Act 2005; and
(c) while the arrangement is in effect --
(i) W executes work principally for E on
behalf of a company of which W is an
20 employee or director (the "company");
and
(ii) the work is directly a part or process in
the trade or business of E.
(2) Unless the arrangement is, or is of a class of
25 arrangements, prescribed by the regulations, an
arrangement is contrived for the purpose described in
subsection (1)(a) if --
(a) before executing work under the arrangement,
W was E's worker and provided substantially
30 similar services; or
(b) although the circumstances described in
paragraph (a) did not exist before W executes
page 8
Workers' Compensation Legislation Amendment Bill 2005
Amendments to Workers' Compensation and Injury Part 3
Management Act 1981
Deemed worker amendments Division 2
s. 13
work under the arrangement, E intimated,
before the arrangement was entered into, that E
was unwilling to enter into an arrangement for
the provision of substantially similar services
5 that would have resulted in W being E's
worker.
(3) A person may apply to an arbitrator for a determination
as to whether a person was, at a particular time or
during a particular period, executing work for another
10 person under an avoidance arrangement.
(4) In making a determination for the purposes of
subsection (3) the arbitrator is not to have regard to
whether or not proceedings have been instituted under
section 303A against E, or to the outcome of those
15 proceedings (if any).
(5) If an injury occurs to W and W and E agree or an
arbitrator determines that, when the injury occurred, W
was executing work for E under an avoidance
arrangement --
20 (a) E is liable to pay any compensation that E
would have been liable to pay under this Act if
W had been E's worker when the injury
occurred;
(b) if, when the injury occurred, E was insured as
25 required by section 160 against its liability to
pay compensation to its workers under this
Act --
(i) that insurance extends to E's liability
under paragraph (a) to pay
30 compensation; and
(ii) the insurer is entitled to indemnity from
E for the cost of satisfying its liability
under subparagraph (i);
page 9
Workers' Compensation Legislation Amendment Bill 2005
Part 3 Amendments to Workers' Compensation and Injury
Management Act 1981
Division 2 Deemed worker amendments
s. 13
(c) the company is relieved of its duties and
liabilities, if any, under this Act in respect of
the payment of compensation to W, and in
respect of its duties, if any, under section 155C
5 in respect of W; and
(d) section 175 does not apply so as to entitle E to
an indemnity from the company or W.
(6) If E is liable to pay compensation under subsection (5),
for purposes related to the compensation and duties
10 under section 155C, and matters related to the
compensation and those duties, this Act applies as if --
(a) a reference in this Act to an employer were a
reference to E except where, for the purpose of
calculating the amount of compensation, a
15 reference is made to the earnings of the worker,
the reference is to be read as a reference to the
earnings of the company to the extent that those
earnings were for work executed for E by W on
behalf of the company;
20 (b) a reference in this Act to a worker were a
reference to W.
(7) E or any person on behalf of E, or an insurer of E or
any person on its behalf, must not, directly or
indirectly, take or receive any money or indemnity
25 from the company or W in respect of any liability of E
or the company to pay compensation in respect of W
under this Act.
Penalty: $2 000.
(8) An indemnity taken or received in contravention of
30 subsection (7) is void.
(9) Where money is taken or received as described in
subsection (7), whether with the consent of the
company or W or not, the company or W, as the case
page 10
Workers' Compensation Legislation Amendment Bill 2005
Amendments to Workers' Compensation and Injury Part 3
Management Act 1981
Deemed worker amendments Division 2
s. 14
requires, may sue and recover the amount of that
money from the person who took or received it.
".
14. Section 303A inserted
5 After section 303 the following section is inserted --
"
303A. Making employment conditional on avoidance
arrangement
(1) If a person executes work for another person ("E")
10 under an avoidance arrangement, E commits an
offence.
Penalty: $5 000.
(2) The question of whether the person executes work for
E under an avoidance arrangement is to be determined
15 in accordance with section 175AA(1) and (2).
".
15. Schedule 1 amended
(1) Schedule 1 clause 11(2) is amended in the definition of
"Amount B" by inserting after "means" --
20 "
--
(a) in the case of a director who is a worker for a
company other than a company that is exempt under
section 164 --
25 (i) the average weekly earnings of the director
over the period in respect of which a
statement was last made in respect of the
director under section 160(2b), determined
by averaging the aggregate amount so
30 stated; or
(ii) if a statement has not been made in respect
of the director under section 160(2b), the
page 11
Workers' Compensation Legislation Amendment Bill 2005
Part 3 Amendments to Workers' Compensation and Injury
Management Act 1981
Division 2 Deemed worker amendments
s. 15
average weekly earnings of the director
determined under subclause (2a);
(b) in the case of a director who is a worker for a
company that is exempt under section 164, the
5 average weekly earnings of the director determined
under subclause (2b);
and
(c) in any other case,
".
10 (2) After Schedule 1 clause 11(2) the following subclauses are
inserted --
"
(2a) For the purposes of paragraph (a)(ii) of the definition of
"Amount B" the average weekly earnings of a director of a
15 company are to be determined --
(a) if the director has been a director of the company
for a period of less than one year, by averaging the
earnings paid to the director by the company over
that period ending on the day before the injury
20 occurs as a worker of the company;
(b) if the director has not been paid any earnings by the
company before an injury occurs as a worker of that
company, by averaging the estimate of earnings of
the director furnished by the company under
25 section 160(2a); and
(c) otherwise, by averaging the earnings paid to the
director by the company over the period of one year
ending on the day before the injury occurs as a
worker of the company.
30 (2b) For the purposes of paragraph (b) of the definition of
"Amount B" the average weekly earnings of a director of a
company are to be determined --
(a) if the director has been a director of the company
for a period of less than one year, by averaging the
35 earnings paid to the director by the company over
page 12
Workers' Compensation Legislation Amendment Bill 2005
Amendments to Workers' Compensation and Injury Part 3
Management Act 1981
Miscellaneous amendments Division 3
s. 16
that period ending on the day before the injury
occurs as a worker of the company;
(b) if the director has not been paid any earnings by the
company before an injury occurs as a worker of that
5 company, by estimating the average weekly
earnings on the basis of any relevant contract,
award or agreement with the company; and
(c) otherwise, by averaging the earnings paid to the
director by the company over the period of one year
10 ending on the day before the injury occurs as a
worker of the company.
(2c) The earnings referred to in subclauses (2a) and (2b) are to
be verified, to the extent practicable, by supporting
particulars provided by the company.
15 ".
Division 3 -- Miscellaneous amendments
16. Section 31H amended
Section 31H(4) is amended by deleting "accident by injury" and
inserting instead --
20 " injury by accident ".
17. Section 72A amended
Section 72A(3) is amended by inserting after "examination" --
" or obstructing the examination ".
18. Section 146H amended
25 (1) Section 146H(2) is amended as follows:
(a) in paragraph (a) by inserting after "evaluation" --
" to be ";
(b) in paragraph (b) by inserting after "evaluation" --
" to be ".
page 13
Workers' Compensation Legislation Amendment Bill 2005
Part 3 Amendments to Workers' Compensation and Injury
Management Act 1981
Division 3 Miscellaneous amendments
s. 19
(2) Section 146H(5) is amended by deleting "it contains an obvious
error, the Director may reject it" and inserting instead --
"
a factual error is apparent on the face of the document,
5 the Director may reject the document
".
19. Section 146O amended
Section 146O(8) is amended as follows:
(a) by inserting after "If" --
10 " a factual error is apparent on the face of ";
(b) by deleting "contains an obvious error, the Director may
reject it" and inserting instead --
" , the Director may reject the document ".
20. Section 165 amended
15 Section 165(4)(b)(ii) is amended by deleting "deposited at the
Treasury" and inserting instead --
" given to the State ".
21. Section 174 amended
Section 174(8) is amended by deleting ", and section 142(1) of
20 the Supreme Court Act 1935 applies to the amount specified in
the certificate as if it were payable under a judgment of the
court".
22. Section 180 amended
Section 180(4) is amended by inserting after "DRD Rules
25 and" --
" is to be complied with ".
page 14
Workers' Compensation Legislation Amendment Bill 2005
Amendments to Workers' Compensation and Injury Part 3
Management Act 1981
Miscellaneous amendments Division 3
s. 23
23. Section 198 amended
Section 198(6) is amended by inserting after "conference or" --
" a ".
24. Section 219 amended
5 Section 219(3) is amended by deleting ", and section 142(1) of
the Supreme Court Act 1935 applies to the amount not paid
under the decision as if it were payable under a judgment of the
court".
25. Section 231 amended
10 Section 231(2)(a) is amended by deleting "entitlements" and
inserting instead --
" expenses ".
26. Section 241 amended
Section 241(2)(a) is amended by deleting "entitlements" and
15 inserting instead --
" expenses ".
27. Section 247 amended
Section 247(4) is amended by inserting after "An" --
" application for leave to ".
20 28. Section 277 amended
Section 277(4) is amended by inserting after "registered
under" --
" regulations made under ".
page 15
Workers' Compensation Legislation Amendment Bill 2005
Part 3 Amendments to Workers' Compensation and Injury
Management Act 1981
Division 3 Miscellaneous amendments
s. 29
29. Schedule 1 amended
Schedule 1 clause 5(1)(a)(i) is amended by inserting after "lump
sum" --
" if ".
page 16
Workers' Compensation Legislation Amendment Bill 2005
Death benefit amendments Part 4
s. 30
Part 4 -- Death benefit amendments
30. Section 5 amended and transitional provision
(1) The amendments in this section are to the Workers'
Compensation and Injury Management Act 1981 as in force on
5 1 July 2005.
(2) Section 5 is amended in paragraph (b) of the definition of
"notional residual entitlement" by deleting "the prescribed
amount as at the date of his death, less" and inserting instead --
"
10 if --
(i) the date of the death of the worker is before
1 July 2005, the prescribed amount as at the
date of the death; and
(ii) the date of the death of the worker is on or
15 after 1 July 2005, $200 000,
less
".
(3) In determining the compensation payable to a dependant of a
worker under clause 1 or 2 in accordance with the Workers'
20 Compensation and Injury Management Act 1981 as amended by
subsection (2) --
(a) any compensation paid under the relevant clause before
this Act received the Royal Assent is to be deducted;
and
25 (b) if an apportionment of compensation has been
determined or agreed in relation to compensation under
the relevant clause before this Act receives the Royal
Assent, any compensation payable under the relevant
clause after this Act receives the Royal Assent is to be
30 apportioned in a like manner.
page 17
Workers' Compensation Legislation Amendment Bill 2005
Part 5 Court of Appeal amendments
s. 31
Part 5 -- Court of Appeal amendments
31. Acts Amendment (Court of Appeal) Act 2004 amended
(1) The amendment in this section is to the Acts Amendment (Court
of Appeal) Act 2004.
5 [* Act No. 45 of 2004.]
(2) Schedule 1 clause 29 is repealed.
32. Workers' Compensation and Injury Management Act 1981
amended
(1) The amendments in this section are to the Workers'
10 Compensation and Injury Management Act 1981* as amended
by the Workers' Compensation Reform Act 2004**.
(2) References in this section to provisions of the Workers'
Compensation and Injury Management Act 1981* are references
to those provisions as amended and renumbered by the
15 Workers' Compensation Reform Act 2004**.
[* Reprinted as at 14 September 2001.
For subsequent amendments see Western Australian
Legislation Information Tables for 2004, Table 1, p. 507-08.
**Act No. 42 of 2004.]
20 (3) Sections 251(1) and 252(1) are amended by deleting "Full Court
of the Supreme Court" and inserting instead --
" Court of Appeal ".
(4) Section 254(1) is amended by deleting "Supreme Court appeal
to the Supreme Court" and inserting instead --
25 " Court of Appeal appeal to the Court of Appeal ".
(5) Section 254(2) is repealed.
page 18
Workers' Compensation Legislation Amendment Bill 2005
Court of Appeal amendments Part 5
s. 32
(6) Section 254(3) and (6) are amended by deleting "Supreme
Court" and inserting instead --
" Court of Appeal ".
page 19
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