WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 - SECT 170

WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 - SECT 170

170 .         Failure to insure

        (1)         An employer who —

            (a)         fails to comply with section 160(1) or (2); or

            (b)         gives in an estimate or statement furnished under section 160(2) any information or particular that he knows to be false in any material particular,

                commits an offence and is liable to a penalty of $5 000 in respect of each worker employed by him to whom the offence relates; and that employer commits a separate and further offence in respect of each week after the day of conviction during which section 160(1) or (2), as the case may be, is not complied with by him in respect of a worker to whom the original offence related, and is liable in respect of each such separate and further offence to a penalty of $5 000 for each such worker; and in addition subsection (2) applies.

        (2)         The court convicting an employer of an offence under subsection (1) shall, in addition to any other penalty imposed in respect of the offence under subsection (1) but subject to subsection (2a), order that the employer pay to the General Account an amount equal to the total of any insurance premiums payment of which the court is satisfied the employer has, at any time during the period of 5 years before the conviction, avoided by failing to obtain insurance as required by section 160(1), failing to furnish an estimate or statement as required by section 160(2), or giving any false information or particular in any such estimate or statement.

        (2a)         In making an order under subsection (2) requiring the payment of an amount determined by reference to insurance premiums payment of which has been avoided, an amount that has been taken into account in making a previous such order shall not be again taken into account.

        (2b)         If an order is made under subsection (2) requiring a body corporate convicted of an offence to pay an amount to the General Account but all or any of the amount required to be paid remains unpaid, WorkCover WA may sue and recover from a responsible officer the unpaid amount.

        (2c)         If there are 2 or more responsible officers, they are jointly and severally liable for the payment of the unpaid amount.

        (2d)         The amount required to be paid under the order is reduced by any amount recovered under subsection (2b).

        (3)         A prosecution for an offence under this section must be commenced within 2 years after the date on which the offence was allegedly committed.

        (3a)         It is a defence to a prosecution for an offence under this section of failing to comply with section 160(1) or (2) in respect of a worker if the court is satisfied that at the time of the alleged offence the employer believed on reasonable grounds that the employer could not be liable under this Act in respect of the worker because under section 20 the worker’s employment was not connected with this State.

        (3b)         If the employer’s belief on reasonable grounds was that under section 20 the worker’s employment was connected with another State, subsection (3a) does not apply unless at the time of the alleged offence the employer had workers’ compensation cover in respect of the worker under the law of that other State.

        (4)         In any prosecution for an offence under this section, proof that the employer, not being a self-insurer —

            (a)         was required under section 175B(1)(c) to produce for inspection a policy of insurance referred to in section 160(1) obtained by the employer and in force at a specified date or between specified dates; and

            (b)         did not produce that policy as required,

                is prima facie evidence that at that specified date or between those specified dates, as the case may be, the employer failed to comply with section 160(1), and the burden of showing that the employer complied with section 160(1) rests on the employer.

        [(5)         deleted]

        (6)         In subsections (2b) and (2c) —

        responsible officer , in relation to the commission of an offence by a body corporate, means a person who is convicted of that offence in accordance with section 170A.

        (7)         In subsection (3b) —

        workers’ compensation cover means insurance or registration required under the law of a State in respect of liability for statutory workers’ compensation under that law.

        [Section 170 amended: No. 44 of 1985 s. 37; No. 33 of 1986 s. 7; No. 86 of 1986 s. 5; No. 96 of 1990 s. 43; No. 34 of 1999 s. 43 and 57; No. 36 of 2004 s. 11; No. 42 of 2004 s. 150; No. 84 of 2004 s. 80; No. 77 of 2006 Sch. 1 cl. 189(9); No. 9 of 2023 s. 169.]