South Australian Numbered Acts South Australian Numbered Acts(1) In this Act, unless the contrary intention appears—
"actuary" means a Fellow or Accredited Member of the Institute of Actuaries of Australia;
"Advisory Committee" means the committee established under Part 11;
"apprentice" includes—
(a) a person undertaking training as a trainee in a trade, declared vocation or other occupation under a contract of training under the Training and Skills Development Act 2008 ; and
(b) a person undertaking training in a scheme approved by the Corporation for the purposes of this definition,
and "apprenticeship" has a corresponding meaning;
"authorised officer" means a person who is authorised by the Corporation to exercise the powers of an authorised officer under this Act;
"average premium rate" means the average rate for all premiums declared under Part 9 Division 4 in relation to a particular financial year when viewed as a percentage of remuneration expected by the Corporation to be paid by all employers (other than self-insured employers) during that financial year;
"average weekly earnings", in relation to a worker, means the worker's average weekly earnings determined in accordance with section 5;
"the board" means the board of management of the Corporation;
"business day" means any day except Saturday, Sunday or a public holiday;
"child", in relation to a deceased worker, includes a person in relation to whom the worker stood, at the date of death, in loco parentis ;
"close personal relationship" means the relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis, but does not include—
(a) the relationship between a legally married couple; or
(b) a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind;
Note—
Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.
"compensation" means any monetary benefit payable under this Act (other than under Part 5);
"consequential mental harm" means mental harm that is a consequence of bodily injury to the person suffering the mental harm;
"Consumer Price Index" or "CPI" means the Consumer Price Index (All groups index for Adelaide) published by the Australian Bureau of Statistics;
"contract of service" means—
(a) a contract under which 1 person (the worker) is employed by another (the employer); or
(b) a contract, arrangement or understanding under which 1 person (the worker) works for another in prescribed work or work of a prescribed class; or
(c) a contract of apprenticeship; or
(d) a contract, arrangement or understanding under which a person (the worker)—
(i) receives on-the-job training in a trade or vocation from another (the employer); and
(ii) is during the period of that training remunerated by the employer;
"Corporation" means the Return to Work Corporation of South Australia ;
"corresponding law" means a law—
(a) of the Commonwealth; or
(b) of a State (other than this State) or a Territory of the Commonwealth; or
(c) of another country,
that corresponds to this Act or that is prescribed by the regulations for the purposes of this definition;
"current work capacity"—see section 36;
"damages" means damages for injury or loss sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker's employer (or a person who is vicariously liable for the acts of the worker's employer), or another person, to pay damages to or in relation to—
(a) the worker; or
(b) if the injury results in the worker's death—a dependant of the deceased worker,
but does not include—
(c) a sum required or authorised to be paid under an award or industrial agreement; or
(d) a sum payable under a superannuation scheme or any life or other insurance policy; or
(e) any amount paid in respect of costs incurred in connection with legal proceedings; or
(f) damages of a class excluded from the ambit of this definition by the regulations;
"dependant", in relation to a deceased worker, means a relative of the worker who, at the time of the worker's death—
(a) was wholly or partially dependent for the ordinary necessities of life on earnings of the worker; or
(b) would, but for the worker's injury, have been so dependent,
and includes a posthumous child of the worker; and "dependent" has a corresponding meaning;
"designated weekly earnings" means designated weekly earnings determined under section 39;
"disease" includes—
(a) any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development; and
(b) any injury to which section 9 applies;
"domestic partner"—a person is the domestic partner of a worker if the person lives with the worker in a close personal relationship and—
(a) the person—
(i) has been so living with the worker continuously for the preceding period of 3 years; or
(ii) has during the preceding period of 4 years so lived with the worker for periods aggregating not less than 3 years; or
(iii) has been living with the worker for a substantial part of a period referred to in subparagraph (i) or (ii) and the Corporation considers that it is fair and reasonable that the person be regarded as the domestic partner of the worker for the purposes of this Act; or
(b) a child, of whom the worker and the person are the parents, has been born (whether or not the child is still living);
"educational institution" means—
(a) a secondary school; or
(b) a trade or technical school; or
(c) a college of advanced education, university or other institution at which tertiary education is provided; or
(d) any other educational or training institution approved by the Corporation for the purposes of this definition;
"employer" means—
(a) a person by whom a worker is employed under a contract of service, or for whom work is done by a worker under a contract of service (subject to any exclusion under subsection (7));
(b) in relation to persons of whom the Crown is, under Schedule 1, the presumptive employer—the Crown;
(c) in relation to persons of whom any other person is, by virtue of a provision of this Act, the presumptive employer—that other person,
and includes a former employer and the legal personal representative of a deceased employer;
"employment" includes—
(a) work done under a contract of service; and
(b) the work of a self-employed person to whom the Corporation has extended the protection of this Act; and
(c) the work of persons of whom the Crown is, under Schedule 1, the presumptive employer; and
(d) attendance by a worker at a place of pick-up;
"evidentiary material" means any document, object or substance of evidentiary value that is relevant to proceedings before the Tribunal and includes any document, object or substance that should, in the opinion of the Tribunal, be produced for the purpose of enabling the Tribunal to determine whether or not it has evidentiary value;
"Federal minimum wage"—see subsection (8);
"foreign law" means any law except a law of this State;
"health practitioner" means—
(a) a person who is registered under the Health Practitioner Regulation National Law (other than as a student) and is—
(i) a medical practitioner; or
(ii) a dentist; or
(iii) a psychologist; or
(iv) an optician; or
(v) a physiotherapist; or
(vi) a chiropractor; or
(vii) a podiatrist; or
(viii) an occupational therapist; or
(ix) an osteopath; or
(b) a speech pathologist who is registered by The Speech Pathology Association of Australia Limited ; or
(c) a person of a class prescribed by the regulations for the purposes of this definition;
"Impairment Assessment Guidelines" means the guidelines published under section 22;
"independent medical adviser" means an independent medical adviser appointed under Part 8;
"industrial association" means—
(a) an association registered under the Fair Work Act 1994 ; or
(b) an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or
(c) the United Trades and Labor Council (trading as SA Unions); or
(d) the Australian Mines and Metals Association; or
(e) Self Insurers of South Australia Inc; or
(f) South Australian Employers' Chamber of Commerce and Industry Inc (trading as Business SA); or
(g) an association, society or body formed to represent, protect or further the interests of employers or employees;
"industry" includes any business or activity in which workers are employed;
"injured worker"—an injured worker is any worker who has suffered an injury (or, where the context admits, has died);
"injury", in relation to a worker, means—
(a) any physical or mental injury including—
(i) loss, deterioration or impairment of a limb, organ or part of the body, or of a physical, mental or sensory faculty; or
(ii) a disease; or
(iii) disfigurement; or
(b) where the context admits—the death of the worker,
and includes an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury;
"legal personal representative"—see subsection (13);
"local government corporation" means—
(a) a council under the Local Government Act 1999 ; or
(b) the Local Government Association of South Australia; or
(c) any other body—
(i) established for local government purposes; and
(ii) prescribed for the purposes of this definition;
"medical practitioner" means a person registered under the Health Practitioner Regulation National Law to practice in the medical profession (other than as a student);
"medical services" means—
(a) attendance, examination or treatment by a health practitioner (including the obtaining of a certificate or report); or
(b) any diagnostic examination or test required for the purposes of treatment by a health practitioner; or
(c) any services of a class prescribed for the purposes of this definition;
"mental harm" means impairment of a person's mental condition;
"motor accident damages" means—
(a) damages to which Part 4 of the Motor Vehicles Act 1959 applies; or
(b) damages to which the law of another State or a Territory of the Commonwealth that corresponds to Part 4 of the Motor Vehicles Act 1959 applies;
"no current work capacity"—see section 36;
"non-economic loss" means—
(a) pain and suffering;
(b) loss of amenities of life;
(c) loss of expectation of life;
(d) disfigurement;
(e) any other loss or detriment of a non-economic nature;
"notional weekly earnings" in relation to a worker means—
(a) the worker's average weekly earnings; or
(b) where an adjustment has been made under this Act to take account of changes in levels of earnings, the value of money or remuneration (including under section 45, 46 or 60) or other relevant factors (or 1 or more of these)—the worker's average weekly earnings as so adjusted but not so as to exceed in any case twice State average weekly earnings;
"officer" of the Corporation includes an employee of the Corporation;
"orphan child" means a child whose natural or adoptive parents are dead and includes a child, 1 of whose natural or adoptive parents is dead and who has no reasonable prospect of being supported by the surviving natural or adoptive parent;
"parent", in relation to a deceased worker, includes a person who stood in loco parentis to the worker at the time of the worker's death;
"permanent impairment compensation" means compensation for permanent impairment under Part 4 Division 6 or Division 7;
"permanent impairment matter" means any of the following:
(a) whether an impairment suffered by a worker is permanent;
(b) the extent to which a permanent impairment suffered by a worker is capable of being accurately assessed;
(c) the extent to which a permanent impairment suffered by a worker is attributable to a previous injury or a pre-existing condition;
(d) the degree of whole person impairment suffered by a worker;
"place of employment" means a place where a worker is required to carry out duties of employment and, if the place is a building, includes land within the external boundaries of the land on which the building is situated;
"premises" means—
(a) a building, structure or place (including an aircraft, ship or vehicle); or
(b) a part of premises;
"prescribed allowance", in relation to the earnings of a worker, means any amount received by the worker from an employer by way of an allowance or benefit prescribed for the purposes of this definition;
"President" means the President of the Tribunal;
"presidential member" means a presidential member of the Tribunal;
"psychiatric injury" means pure mental harm;
"pure mental harm" means mental harm other than consequential mental harm;
"recognised health practitioner" means—
(a) a medical practitioner; or
(b) in relation to injuries of a particular kind—a health practitioner who is recognised by the Corporation (in a manner determined by the Corporation) as having specialised knowledge of, and experience in the treatment of, injuries of that kind;
"recovery/return to work plan"—see section 25;
"recovery/return to work services"—see section 24;
"Registrar" means the Registrar of the Tribunal;
"relative", in relation to a deceased worker, means a spouse, domestic partner, parent, grandparent, step-parent, child, grandchild, stepchild, brother, sister, stepbrother, stepsister, half-brother or half-sister of the worker;
"repealed Act" means the Workers Rehabilitation and Compensation Act 1986 repealed by this Act;
"residence" in relation to a worker includes a place—
(a) at which the worker resides in accordance with the terms of the worker's employment or at the request of the employer; or
(b) at which it is necessary or convenient for the worker to reside temporarily for the purposes of employment;
"reviewable decision" means a decision that is reviewable under section 97;
"RTWSA premium order" means a RTWSA premium order published under Part 9 Division 4 Subdivision 4;
"RTWSA premium provisions" means the RTWSA premium provisions published under Part 9 Division 4 Subdivision 2;
"SACFS" means the South Australian Country Fire Service;
"SAMFS" means the South Australian Metropolitan Fire Service;
"self-employed worker" means a person to whom the Corporation has extended the protection of this Act pursuant to section 175;
"self-insured employer" means an employer who is registered by the Corporation as a self-insured employer under Part 9 Division 1;
"seriously injured worker"—see Part 2 Division 4;
"ship" includes a boat, vessel or craft;
"South Australian ship" means a ship—
(a) that is registered in the State; or
(b) that is owned or under charter by the Crown; or
(c) that is owned or under charter by a body corporate or other person—
(i) whose principal office or place of business is in the State; or
(ii) whose principal office or place of business with respect to the control or management of the ship is in the State;
"spouse"—a person is the spouse of another if they are legally married;
"the State" includes the territorial waters of the State;
"suitable employment", in relation to a worker, means employment in work for which the worker is currently suited, whether or not the work is available, having regard to the following:
(a) the nature of the worker's incapacity and previous employment;
(b) the worker's age, education, skills and work experience;
(c) the worker's place of residence;
(d) medical information relating to the worker that is reasonably available, including in any medical certificate or report;
(e) if any recovery/return to work services are being provided to or for the worker;
(f) the worker's recovery/return to work plan, if any;
"Supreme Court" means the Supreme Court of South Australia;
"therapeutic appliance" means—
(a) spectacles or contact lenses; or
(b) a hearing aid; or
(c) false teeth; or
(d) a prosthesis; or
(e) a crutch or wheelchair; or
(f) any other appliance or aid for reducing the extent of an injury or enabling a person to overcome in whole or part the effects of an injury;
"trauma" means an event, or series of events, out of which a work injury arises;
"Tribunal" means the South Australian Employment Tribunal established under the South Australian Employment Tribunal Act 2014 ;
"unrepresentative injury" means an injury arising from an attendance mentioned in section 7(5) or a journey mentioned in section 7(8)(b);
"week" means any period of 7 consecutive days;
"work injury" means an injury that arises from employment under section 7;
"worker" means—
(a) a person by whom work is done under a contract of service (whether or not as an employee);
(b) a person who is a worker by virtue of Schedule 1;
(c) a self-employed worker,
and includes a former worker and the legal personal representative of a deceased worker;
"working day" in relation to a worker means a day on which the worker works or would, if not incapacitated for work, be normally required to work in the course of employment.
(2) A member of the crew of a fishing boat who is remunerated by a share in profits or gross receipts obtained by working the boat is not a worker for the purposes of this Act.
(3) If a worker has no fixed place of employment, the worker's place of employment on a particular working day is the place at which, or the area in which, the worker works or is required to work on that working day.
(4) Where in a prescribed industry or in prescribed circumstances a person (the "principal") contracts with another person (the "contractor") for the performance by the contractor of work undertaken by the principal, the principal will, for the purposes of this Act, be taken to be the employer of workers employed by the contractor.
(5) The regulations may exclude (either absolutely or subject to limitations or conditions stated in the regulations) specified classes of workers wholly or partially from the application of this Act.
(6) A regulation under subsection (5) may only be made after consultation with the Advisory Committee.
(7) The regulations may, in prescribing work or work of a specified class for the purposes of paragraph (b) of the definition of "contract of service" in subsection (1)—
(a) designate a person, or persons of a specified class, as the presumptive employer of a worker who is within the ambit of the relevant prescription;
(b) exclude a person who would otherwise be the employer of such a worker from the definition of "employer" in subsection (1).
(8) For the purposes of this Act, a reference to the Federal minimum wage is a reference to a wage applying under a national minimum wage order under Part 2-6 of the Fair Work Act 2009 of the Commonwealth prescribed by the regulations under this subsection.
(9) For the purposes of this Act, a reference to State average weekly earnings is a reference to the amount last published before the relevant day by the Australian Bureau of Statistics as an estimate of Average Weekly Earnings for Ordinary Hours of Work for each Full-time Employed Adult Male Unit in this State.
(10) For the purposes of this Act—
(a) "total incapacity" for work is the incapacity for work that is represented by a worker having no current work capacity within the meaning of this Act; and
(b) "partial incapacity" for work is the incapacity for work that is represented by a worker having a current work capacity within the meaning of this Act.
(11) For the purposes of this Act, the date on which an incapacity for work first occurs will be taken to be the first day in respect of which the worker has an entitlement to a payment under Part 4 Division 4 Subdivision 2 on account of that incapacity.
(12) Any period under this Act that relates to a specified number of weeks from the date on which an incapacity for work first occurs will be taken to include (for the purposes of calculating that period) any time when the relevant worker was not in fact incapacitated for work.
(13) For the purposes of this Act, a person is the legal personal representative of a deceased worker if the person is—
(a) a person who is entitled at law to administer the estate of the deceased worker; or
(b) a person who is authorised by the Tribunal (on application made under this subsection) to act under this Act as a legal personal representative of the deceased worker.
(14) For the purposes of this Act, 2 or more workplaces in close proximity may, if the Corporation so determines, be regarded as a single workplace.
(15) A reference in a provision of this Act to a designated form is a reference to a form designated for the purposes of that provision by the Corporation from time to time by notice in the Gazette (and for the purposes of this Act the Corporation may specify information that may be provided in a specified form, not being in the nature of a written or printed form, which will satisfy a requirement as to the provision of information in a designated form).
(16) A reference in a provision of this Act to a designated manner is a reference to a manner designated for the purposes of that provision by the Corporation from time to time by notice in the Gazette.
(17) If a sum of money fixed by this Act is followed by the word "(indexed)", that signifies that the amount is to be adjusted as at 1 January in each year so that the adjusted sum bears to the sum fixed by Parliament the same proportion as the Consumer Price Index for the September quarter of the immediately preceding year bears to the Consumer Price Index for the September quarter of the year immediately preceding the year in which the law fixing the sum took effect, with the amount so adjusted being rounded up under a scheme prescribed by the regulations.