South Australian Numbered Acts South Australian Numbered ActsSchedule 9—Repeal, amendments and transitional provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.
Part 2—Repeal
The Workers Rehabilitation and Compensation Act 1986 is repealed.
Part 3—Amendment of Civil Liability Act 1936
3—Amendment of section 4—Application of Act
Section 4(4)—delete "the Workers Rehabilitation and Compensation Act 1986 " and substitute:
Part 4 of the Return to Work Act 2014
Part 4—Amendment of Judicial Administration (Auxiliary Appointments and Powers) Act 1988
4—Amendment of section 2—Interpretation
Section 2, definition of judicial office , (ba)—delete paragraph (ba) and substitute:
(ba) the office of Deputy President of the South Australian Employment Tribunal;
Part 5—Amendment of Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013
5—Amendment of section 24—Eligibility for participation in Scheme
Section 24(5)(b)—delete paragraph (b) and substitute:
(b) a motor vehicle injury that is also a work injury under the Return to Work Act 2014 (other than to such extent as applies under section 55).
6—Amendment of section 55—Agreements with prescribed authorities
(1) Section 55(1)(a) and (b)—delete paragraphs (a) and (b) and substitute:
(a) who have suffered work injuries under the Return to Work Act 2014 ; and
(b) who, in the opinion of the prescribed authority, would benefit from participating in certain aspects of the Scheme relating to treatment, care and support needs and in having other services (whether under this Act or the Return to Work Act 2014 ) provided by the Authority.
(2) Section 55(2)(b)—delete "under this Act"
(3) Section 55(3)—delete subsection (3) and substitute:
(3) The Authority is authorised to exercise any power or discretion delegated to the Authority under an agreement entered into under this section and contemplated by section 176 of the Return to Work Act 2014 .
(4) Section 55(4), definition of prescribed authority , (a)—delete paragraph (a) and substitute:
(a) in relation to a person who has suffered a work injury as a worker of a self-insured employer under the Return to Work Act 2014 —that self-insured employer; and
Part 6—Amendment of Supreme Court Act 1935
7—Amendment of section 39—Vexatious proceedings
Section 39(6), definition of prescribed court , (c)—delete paragraph (c) and substitute:
(c) the South Australian Employment Tribunal; and
Part 7—Amendment of WorkCover Corporation Act 1994
Long title—delete "WorkCover Corporation of South Australia" and substitute:
Return to Work Corporation of South Australia
9—Amendment of section 1—Short title
Section 1—delete " WorkCover Corporation Act 1994 " and substitute:
Return to Work Corporation of South Australia Act 1994
10—Amendment of section 3—Interpretation
Section 3, definition of Corporation —delete the definition and substitute:
Corporation means the Return to Work Corporation of South Australia;
11—Amendment of section 4—Continuation of Corporation
Section 4(1)—delete subsection (1) and substitute:
(1) The WorkCover Corporation of South Australia continues as the Return to Work Corporation of South Australia (with its principal trading name being ReturnToWorkSA ).
12—Amendment of section 7—Allowances and expenses
Section 7(2)—delete " Workers Rehabilitation and Compensation Act 1986 " and substitute:
13—Amendment of section 12—Primary objects
(1) Section 12(a) and (b)—delete paragraphs (a) and (b) and substitute:
(a) to ensure that the early intervention, recovery and return to work scheme under the Return to Work Act 2014 operates in a fair, effective and efficient manner; and
(b) to regulate the activities of service providers that are relevant to the scheme referred to in paragraph (a); and
(2) Section 12—after paragraph (d) insert:
and
(e) to take all reasonable steps to ensure that the scheme mentioned above is fully-funded on a fair basis.
14—Amendment of section 13—Functions
(1) Section 13—delete " Workers Rehabilitation and Compensation Act 1986 " wherever occurring and substitute, in each case:
(2) Section 13(1)(b)—delete "occupational" and substitute:
work
(3) Section 13(1)(c)—delete "rehabilitation" and substitute:
recovery
(4) Section 13(1)(e)—delete "workers rehabilitation and compensation"
(5) Section 13(1)(f)—delete "rehabilitation" and substitute:
recovery, return to work
(6) Section 13(1)(g)—delete "rehabilitation" and substitute:
recovery, return to work
(7) Section 13(1)(h)—delete "occupational" and substitute:
work
(8) Section 13(1)(j)—delete paragraph (j) and substitute:
(j) to devise, promote or approve courses of training in early intervention, recovery and return to work in relation to workers who suffer injuries arising from employment; and
(9) Section 13(1)(k)(i)—delete "occupational" and substitute:
work
(10) Section 13(1)(k)(iii)—delete subparagraph (iii) and substitute:
(iii) workers recovery and return to work in cases involving work-related injuries; or
(11) Section 13(1)(ka)—delete "occupational" and substitute:
work
(12) Section 13(1)(l)(i)—delete "occupational" and substitute:
work
(13) Section 13(1)(l)(ii)—delete subparagraph (ii) and substitute:
(ii) workers recovery and return to work in cases involving work-related injuries; and
15—Amendment of section 14—Powers
(1) Section 14(3)(a)(ii)—delete subparagraph (ii) and substitute:
(ii) to provide recovery/return to work services; or
(2) Section 14(3)(a)(iii)—delete "compensable disabilities" and substitute:
work injuries
(3) Section 14(4)(a)—delete " Workers Rehabilitation and Compensation Act 1986 " and substitute:
(4) Section 14(4)(b)—delete paragraph (b) and substitute:
(b) a contract or arrangement with a person who holds an accreditation, approval or appointment by the Corporation for the provision of recovery/return to work services under Part 3 of the Return to Work Act 2014 ; or
(5) Section 14—after subsection (4a) insert:
(4b) An authorised contract or arrangement cannot confer a power on a private sector body—
(a) to agree to a redemption under Part 4 Division 5 of the Return to Work Act 2014 ; or
(b) to refuse a worker access to material under section 180(3)(c) of the Return to Work Act 2014 .
16—Amendment of section 14A—Direction of Minister
Section 14A(2)—delete " Workers Rehabilitation and Compensation Act 1986 " and substitute:
17—Amendment of section 16—Committees
Section 16(3)—delete " Workers Rehabilitation and Compensation Act 1986 " and substitute:
18—Amendment of section 17A—Corporation's charter
Section 17A(2)(b)—delete paragraph (b) and substitute:
(b) without limiting paragraph (a)—the steps to be undertaken or the initiatives to be established to ensure that the Corporation has and maintains systems to provide for the effective recovery and return to work of workers who suffer work-related injuries, especially through early intervention and through the administration of section 18 of the Return to Work Act 2014 ;
19—Amendment of section 20—Annual reports
Section 20(2)(b)—delete paragraph (b)
20—Amendment of section 21—Chief Executive Officer
Section 21(7)—delete " Workers Rehabilitation and Compensation Act 1986 " wherever occurring and substitute, in each case:
21—Amendment of section 26—Protection of special names
(1) Section 26(1), definition of prescribed name —delete the definition and substitute:
prescribed name means—
(a) WorkCover ; or
(b) ReturnToWorkSA ; or
(c) RTWSA ; or
(d) ReturnToWorkAssist ; or
(e) ReturnToWorkAssistSA ; or
(f) RTWAssistSA .
(2) Section 26(2)—delete "the" and substitute:
a
(3) Section 26(3)—delete "the prescribed name" and substitute:
a prescribed name
After section 27 insert:
27A—Application of public corporations provision
(1) Subject to subsections (2) and (3), section 29(2)(a) and (3) of the Public Corporations Act 1993 applies to the Corporation.
(2) A liability under subsection (1) does not arise in respect of any financial year unless the Corporation has, in relation to the financial year in respect of which the liability is imposed—
(a) achieved a funding level of at least 100% at a probability of sufficiency of 75%; and
(b) achieved a profit from its insurance operations.
(3) A liability under subsection (1) also does not arise in respect of a financial year if the Minister, after consultation with the Treasurer, determines, from a prudential perspective, that such a liability should not be imposed in respect of that financial year.
(4) Terms used in this section and also in Part 10 of the Return to Work Act 2014 have the same meanings in this section as they have in that Part (unless the contrary intention appears).
Part 8—Amendment of Workers Rehabilitation and Compensation Act 1986
23—Amendment of section 31—Evidentiary provision
(1) Section 31(2b)(b), (c) and (d)—delete paragraphs (b), (c) and (d) and substitute:
(b) the worker was a member of the South Australian Country Fire Service ( SACFS ) presumptively employed by the Crown as a firefighter—
(i) on or after 1 July 2013; and
(ii) before the injury occurred; and
(iii) for the qualifying period referred to in the second column of Schedule 2A opposite the injury; and
(c) the injury occurred—
(i) on or after 1 July 2013; and
(ii) in the case of a worker who is no longer a member of SACFS presumptively employed by the Crown as a firefighter—no more than 10 years after the cessation of that presumptive employment; and
(d) during the qualifying period referred to in paragraph (b)(iii), the worker was exposed to the hazards of a fire scene (including exposure to a hazard of the fire that occurred away from the scene),
(2) Section 31(4a)—delete "subsection (2a)" and substitute:
subsections (2a) and (2b)
(3) Section 31(4b)—delete subsection (4b)
Part 9—Amendment of Work Health and Safety Act 2012
24—Amendment of section 4—Definitions
(1) Section 4—after the definition reasonably practicable insert:
RTWSA means the Return to Work Corporation of South Australia;
(2) Section 4, definition of WorkCover —delete the definition
25—Amendment of Schedule 2—Local tripartite consultation arrangements
Schedule 2, clause 13(1)—delete "Schedule 1 of the Workers Rehabilitation and Compensation Act 1986 " and substitute:
Schedule 9 of the Return to Work Act 2014
26—Amendment of Schedule 5—Provisions of local application
(1) Schedule 5, clause 1(1)—delete "WorkCover" wherever occurring and substitute, in each case:
RTWSA
(2) Schedule 5, clause 1(2)—delete " section 112 of the Workers Rehabilitation and Compensation Act 1986 " and substitute:
section 185 of the Return to Work Act 2014
(3) Schedule 5, clause 1(3)—delete subclause (3) and substitute:
(3) In this clause—
related Act means—
(a) the Return to Work Act 2014 ; or
(b) the Return to Work Corporation of South Australia Act 1994 .
(4) Schedule 5, clause 2—delete " Workers Rehabilitation and Compensation Act 1986 " wherever occurring and substitute, in each case:
(5) Schedule 5, clause 2—delete "WorkCover" wherever occurring and substitute, in each case:
RTWSA
(6) Schedule 5, clause 2(6)(c)—delete " section 67" and substitute:
(7) Schedule 5, clause 2(6)(c)—delete "levy" and substitute:
premium
(8) Schedule 5, clause 2(7)—after "the Treasurer" insert:
to be applied towards the costs associated with the administration of this Act
(9) Schedule 5, clause 2(11)—delete "unpaid levy under Part 5" and substitute:
unpaid premium under Part 9
(10) Schedule 5, clause 3—delete clause 3
Part 10—Transitional provisions
Division 1—Interpretation
(1) In this Part—
designated day means a day appointed by proclamation as the designated day for the purposes of the provision in which the term is used;
existing injury —see clause 29(1)(a);
new injury —see clause 29(1)(b);
SAET means the South Australian Employment Tribunal established under the South Australian Employment Tribunal Act 2014 ;
WCT means the Workers Compensation Tribunal under the repealed Act.
(2) A reference in this Part to the Corporation in a clause prescribed by regulations made for the purposes of this subclause will be taken to include a reference to a self-insured employer.
Division 2—CPI adjustment
(1) If a sum of money fixed by this Act at the time of enactment is followed by the word "(indexed)", that signifies—
(a) that the amount is to be adjusted as at 1 January 2015 so that the adjusted sum bears to the amount fixed by Parliament the same proportion as the Consumer Price Index for the September quarter 2014 bears to the Consumer Price Index for the September quarter 2013; and
(b) that the amount is to be adjusted as at 1 January in each subsequent year so that the adjusted sum bears to the amount fixed by the Parliament the same proportion as the Consumer Price Index for the September quarter of the immediately preceding financial year bears to the Consumer Price Index for the September quarter 2013.
(2) An amount determined under subclause (1) will be rounded up to the nearest dollar.
(3) Subclauses (1) and (2) apply to a sum fixed by a provision that has not come into operation on 1 January 2015 so that when the provision comes into operation then the sum as adjusted will apply.
Division 3—Application of Act
(1) Subject to the other provisions of this Part, this Act applies to and in relation to—
(a) an injury that is attributable to a trauma that occurred before the designated day and that is a compensable injury under the repealed Act (an existing injury ); and
(b) an injury that is attributable to a trauma that occurred on or after the designated day (a new injury ).
(2) For the purposes of subclause (1), an injury that is partially attributable to a trauma that occurred before the designated day and partially attributable to a trauma that occurred on or after the designated day will be taken to be a new injury within the ambit of subclause (1)(b).
(3) Subject to the other provisions of this Part—
(a) a reference in this Act to a work injury will be taken to include a reference to a compensable injury under the repealed Act; and
(b) this Act will apply to a compensable injury under the repealed Act as if this Act had been in operation before the injury occurred.
(4) Nothing in this Part is intended to give rise to an entitlement under this Act and the repealed Act so as to give rise to double entitlements.
30—Connection with employment
(1) The question about whether an existing injury is compensable will be determined under sections 30 and 30A of the repealed Act (as in existence immediately before the designated day).
(2) However, section 7(3) of this Act extends to an injury (the designated injury ) that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury where—
(a) the prior injury is wholly or partially attributable to a trauma that occurred before the designated day; and
(b) the designated injury is wholly or partially attributable to a trauma that occurred on or after the designated day.
31—Notice of injury
A notice of an injury given by a worker under section 51 of the repealed Act will be taken to be a notice given under section 16 of this Act.
32—Employer's duty to provide work
Section 18(3) of this Act extends to a worker who has been incapacitated for work before the designated day.
33—Recovery and return to work
(1) A rehabilitation program in force under the repealed Act immediately before the designated day will continue for the purposes of this Act in connection with providing recovery/return to work services until reviewed or discontinued by the Corporation.
(2) A rehabilitation and return to work plan in force under the repealed Act immediately before the designated day will, on the designated day, be taken to be a recovery/return to work plan under this Act.
(3) A person who, immediately before the designated day, held an appointment as a co-ordinator under section 28D of the repealed Act will, on the designated day, be taken to be an accredited return to work co-ordinator under section 26 of this Act.
(4) A reference in any instrument or agreement to a rehabilitation and return to work co-ordinator will, on the designated day, be taken to be a reference to a return to work co-ordinator under section 26 of this Act (unless the context otherwise requires).
34—Seriously injured workers
(1) A person whose degree of whole person impairment has been assessed under Part 4 Division 5 of the repealed Act to be 30% or more will be taken to be a seriously injured worker under this Act.
(2) In addition, the Corporation may determine that a worker who has an existing injury will be taken to be a seriously injured worker for the purposes of this Act.
(3) A determination under subclause (2)—
(a) may be made on any basis determined by the Corporation (including in a case where the worker would not qualify to be a seriously injured worker under section 21 of this Act); and
(b) will have effect according to its terms.
(4) A decision to make, or not to make, a determination under subclause (2) is not reviewable under this Act.
(1) In relation to the application of subsection (20) of section 33 of this Act to an existing injury, a period of 12 months referred to in that subsection must be a period of 12 months—
(a) that runs from the designated day; or
(b) that commences on or after the designated day,
(and so, in the case of an existing injury, a reference in subsection (21) of section 33 of this Act to the period referred to in subsection (20) will be taken to be a reference to a period applying under paragraph (a) or (b) of this clause).
(2) Section 33(21)(b)(ii) of this Act does not apply in relation to an existing injury.
36—Provisional liability for medical expenses
A right of set off under section 32A(8) of the repealed Act may be exercised in relation to a right to the payment of compensation under this Act (including in relation to a new injury).
37—Weekly payments for workers
(1) In this clause—
(a) the first transitional period is the period of 52 weeks from the designated day; and
(b) the second transitional period is the period of 52 weeks beginning immediately after the end of the initial transitional period; and
(c) a reference to an entitlement period is a reference to an entitlement period under Part 4 Division 4 of the repealed Act; and
(d) a Category A worker is, in respect of an existing injury, a worker who, immediately before the designated day, was still entitled to receive a weekly payment during the first entitlement period in respect of any incapacity for work in respect of that injury; and
(e) a Category B worker is, in respect of an existing injury, a worker who, immediately before the designated day, was still entitled to receive a weekly payment during the second entitlement period in respect of any incapacity for work in respect of that injury; and
(f) a Category C worker is, in respect of an existing injury, a worker who, immediately before the designated day, was still entitled to receive a weekly payment during a period occurring after the end of the second entitlement period in respect of any incapacity for work in respect of that injury.
(2) Subject to this Part, a worker who, in respect of an existing injury, is incapacitated for work at any time during the period beginning on the designated day and ending 104 weeks from the designated day, will be entitled to weekly payments in respect of that incapacity in accordance with the following principles:
(a) if any incapacity for work occurs within the first transitional period—
(i) in the case of a Category A worker—the worker is entitled to weekly payments under section 39(1)(a)(i) or (ii) of this Act as if references to the first designated period in section 39(1)(a) were references to the first transitional period; and
(ii) in the case of a Category B worker—the worker is entitled to weekly payments under section 39(1)(b)(i) or (ii) as if references to the second designated period in section 39(1)(b) were references to the first transitional period and as if references to "80%" in section 39(1)(b)(i) or (ii) were substituted with "90%"; and
(iii) in the case of a Category C worker—the worker is entitled to weekly payments under section 39(1)(b)(i) or (ii) of this Act as if references to the second designated period in section 39(1)(b) were references to the first transitional period;
(b) if any incapacity for work occurs within the second transitional period—the worker is entitled to weekly payments under section 39(1)(b)(i) or (ii) of this Act as if references to the second designated period in section 39(1)(b) were references to the second transitional period.
(3) Subject to subclauses (4) and (5), a worker has no entitlement to weekly payments under this Act or the repealed Act in respect of an existing injury after the end of the second transitional period (and this subclause will apply instead of section 39(3) of this Act in relation to existing injuries).
(4) An entitlement under this clause has effect subject to any other provision of this Act (including any provision that applies under or subject to this Part) that provides for the suspension, reduction or discontinuance of weekly payments.
(5) Subclause (3) does not apply in relation to a seriously injured worker.
(6) To avoid doubt, a person who, before the designated day, has ceased to have an entitlement to weekly payments on account of a discontinuance under section 36 of the repealed Act is not entitled to weekly payments under this clause (or under the repealed Act).
38—Federal minimum wage safety net
Section 42 of this Act extends to the amount of compensation payable under Part 4 Division 4 Subdivision 2 of this Act on account of the operation of this Part.
39—Management of transitional arrangements for income support
(1) The Corporation may, in connection with the operation of clauses 37 and 38 (and the other relevant provisions of this Part), establish a scheme to provide for the transition from making weekly payments under the repealed Act to making weekly payments in accordance with those clauses and this Act more generally.
(2) To the extent that the Corporation, in establishing and implementing the scheme referred to in subclause (1), does not begin to make weekly payments to a worker at the rates that apply under this Act rather than the repealed Act on the designated day, the worker will, when weekly payments commence in accordance with the provisions of this Part, be entitled to—
(a) back payments to the extent necessary to ensure that the worker receives (in due course) his or her full entitlement (as applying from the designated day); and
(b) the payment of interest (at the prescribed rate) calculated and applied (from the designated day) in accordance with the regulations.
To avoid doubt, section 44 of this Act extends to weekly payments being paid to a worker under this Part.
41—Discontinuance of weekly payments
(1) Subsection (9) of section 48 of this Act extends to and in relation to a notice of a decision of the Corporation under section 36 of the repealed Act unless the worker has lodged a notice of dispute under section 36 of the repealed Act before the designated day (but subject to the operation of subclause (2)(b)).
(2) If a worker has lodged a notice of dispute under section 36 of the repealed Act before the designated day—
(a) if the worker has made an application to the WorkCover Ombudsman under subsection (15) of section 36 of the repealed Act and the WorkCover Ombudsman has made a decision in relation to the application before the designated day—subsection (15), (16) and (17) of section 36 of the repealed Act, and all other relevant provisions of the repealed Act, will continue to apply to and in relation to the matter until the dispute is finally resolved as if the repealed Act had not been repealed by this Act; and
(b) in any other case—any application to the WorkCover Ombudsman under subsection (15) of section 36 of the repealed Act (if made) will lapse, but the worker may make an election under subsection (9) of section 48 of this Act.
(3) In the case of a worker within the ambit of subclause (2)(b)—
(a) the election must be made within 28 days after the designated day; and
(b) if the worker makes an election—
(i) if the dispute has already come before a conciliator—the Tribunal may act (if it thinks fit) under subsection (9)(b) of section 48 of this Act so as to provide for the reinstatement of weekly payments; and
(ii) the liability of the Corporation to make a payment for any weekly payments that have not been made will be limited to a period commencing on the date of the election.
(4) Subclause (3) operates subject to section 48(10) of this Act.
(1) Nothing in this Part affects the application of section 42 of the repealed Act with respect to negotiations, and any agreement, for a redemption under the repealed Act commenced or entered into in accordance with that section before the designated day.
(2) Except as provided by subclause (1) (and to avoid doubt), section 42 of the repealed Act will not apply to or in relation to a liability under the repealed Act with respect to an existing injury.
43—Loss of future earning capacity
To avoid doubt, Part 4 Division 6 of this Act does not apply to or in relation to an existing injury.
44—Permanent impairment assessment
A person whose entitlement for non-economic loss has been determined under Part 4 Division 5 of the repealed Act in respect of an existing injury is not entitled to an assessment under Part 2 Division 5 of this Act in relation to the same injury (or any other injury arising from the same trauma).
45—Payments on death—lump sums
(1) The Corporation may, in relation to the death of a worker occurring on or after 1 July 2008 and before the designated day, in its absolute discretion, on the application of a person who was the spouse or domestic partner of the worker at the time of death, make an ex gratia payment (of an amount determined by the Corporation) after taking into account the amount (or additional amount) that would have been payable under section 61 of this Act had this Act been in operation before that trauma.
(2) The Corporation may make a payment under subclause (1) even if an amount has been paid under section 45A of the repealed Act in relation to the death of the worker (including an amount equal to the prescribed sum under that section).
(3) The Corporation may, in relation to the death of a worker that is subject to a claim for compensation under section 45A of the repealed Act that has not been determined before the designated day (including by the resolution of any dispute by proceedings under the repealed Act), deal with the claim in all respects under section 61 of this Act.
(4) A decision of the Corporation not to make a payment under subclause (1) (or the amount of any such payment) is not reviewable under this Act (or under the repealed Act).
Section 64(3) and (4) of this Act extends to outstanding payments of compensation under the repealed Act.
47—Payments by employers
(1) The Corporation may, if it thinks fit, on the application of an employer who has paid compensation by way of income maintenance under the repealed Act, being compensation that would otherwise have been payable by the Corporation, make a payment that would have been payable under subsection (17) of section 64 of this Act had subsections (16) and (17) of that section been in operation at the time of the payment by the employer.
(2) An application under subclause (1) must be made within 3 months after the designated day.
A right of set off under section 50H of the repealed Act may be exercised in relation to a right to the payment of compensation under this Act (including in relation to a new injury).
Division 4—Common law
Part 5 of this Act does not apply to or in relation to an existing injury or the death of a worker resulting from an existing injury (and section 54(1) of the repealed Act will continue to apply in respect of such an injury or death).
Division 5—Dispute resolution
(1) Subject to this Part, an application or other proceedings commenced before WCT under the repealed Act before the designated day may be continued and completed (and any appeals initiated or completed) under the repealed Act (and, if relevant, after applying any provision of this Part that is relevant to the proceedings).
(2) A right to make an application or to bring proceedings before WCT under the repealed Act in existence before the designated day and not exercised before that day will be exercised as if Part 6 of this Act were in operation before that right arose so that the relevant proceedings will be commenced before SAET rather than WCT.
(3) Without limiting any other provision—
(a) the regulations may make provision for or with respect to the interaction between this Part and the repealed Act in order to ensure that SAET and WCT can operate under both sets of provisions (including, if necessary, by modifying any provision of the repealed Act or section 7 of this Act so that SAET can exercise the jurisdiction conferred by subclause (2)); and
(b) the President of SAET may take other steps to ensure the smoothest possible transition from 1 jurisdiction to the other in connection with the operation of this clause (including by giving directions as to any procedural matter which will then have effect according to their terms).
SAET may—
(a) draw any conclusions of fact from evidence that has been before WCT; or
(b) adopt any findings or determinations of WCT; or
(c) adopt any decision, direction or order of WCT; or
(d) set aside any decision, direction or order of WCT,
that may be relevant to proceedings before SAET.
(1) The Governor may, when he or she thinks that it is appropriate to do so, by proclamation, dissolve WCT.
(2) When a proclamation is made under subclause (1)—
(a) subject to subclause (3), any member of WCT (being either a presidential member or a conciliation officer) holding office under the repealed Act at the time of the making of the proclamation will cease to hold that office and any contract, agreement or arrangement relating to that office held by the member is terminated by force of this paragraph at the same time (and no right of action will arise against the Minister or the State on account of that termination); and
(b) any proceedings before the WCT will be dealt with in accordance with provisions made by the regulations.
(3) A member of WCT who is a Judge of the Industrial Relations Court of South Australia will continue as a member of SAET under the provisions of the South Australian Employment Tribunal Act 2014 .
Division 6—Registration and funding
53—Continuation of registration
(1) An employer registered under the repealed Act immediately before the designated day will be taken to be registered under this Act (and, in the case of a self-insured employer under the repealed Act the employer will continue as a self-insured employer under this Act).
(2) A registration under this Act under subclause (1) is subject to any conditions specified by this Act and is subject to the other provisions of this Act in all respects.
(1) Section 137 of this Act does not apply in relation to the 2015/2016 or 2016/2017 financial years.
(2) A RTWSA premium order under this Act may take into account the claims experience of any employer under the repealed Act.
(3) A hindsight premium under the repealed Act is payable as if the relevant period applied under this Act (and will be payable by a date specified by the Corporation).
(4) Unless otherwise determined by the Corporation, a group constituted under section 72A of the repealed Act will continue as a group under section 145 of this Act.
(5) In acting under section 147 of this Act, the Corporation may have regard to matters that arose during the time that the repealed Act was in operation.
(6) Any right of recovery, fine, penalty or other step that may be exercised, imposed, taken or enforced under Part 5 of the repealed Act in relation to any assessment, default or failure may, on and from the designated day, be exercised, imposed, taken or enforced under Part 9 of this Act.
(7) Without limiting subclause (6), the Corporation may exercise any power or do any thing in relation to a matter under Part 5 of the repealed Act as if this Act had been in operation at the time that the matter under Part 5 of the repealed Act arose.
(1) A reference in Part 10 of this Act to a financial year is a reference to a financial year commencing on or after the designated day.
(2) In addition, the Minister cannot initiate a review under section 170 of this Act until after the expiration of 3 financial years from the designated day.
Division 7—Medical panels
(1) If a Medical Panel is, immediately before the designated day, still considering a medical question on a reference under Part 6C of the repealed Act—
(a) the Medical Panel must give its opinion as quickly as is reasonably practicable after the designated day; and
(b) in any event the reference will, subject to subclause (2), be brought to an end, by operation of this clause, 60 days after the designated day (even if the Medical Panel has not given its opinion on the relevant medical question by then and even if a longer period would otherwise apply due to an extension of time under section 98H(1) of the repealed Act).
(2) WCT may grant an extension of the period that applies under subclause (1)(b).
(3) WCT may grant an extension of time under subclause (2) on such conditions as it thinks fit.
(4) The costs of Medical Panels will be payable out of the Compensation Fund until the Medical Panels cease operations in all respects.
Division 8—WorkCover Ombudsman
The person holding office as the WorkCover Ombudsman immediately before the designated day will, on the designated day, cease to hold office and any contract, agreement or arrangement relating to the office is terminated by force of this clause at the same time (and no right of action will arise against the Minister or the State on account of that termination).
Division 9—1971/1986 Acts
In this Division—
appointed day means the day on which the 1971 Act was repealed by the Workers Rehabilitation and Compensation Act 1986 ;
compensating authority means the Corporation or a self-insured employer;
1971 Act means the Workers Compensation Act 1971 .
(1) Subject to this clause, the 1971 Act continues to apply in respect of an injury that is attributable to a trauma that occurred before the appointed day.
(2) This Act applies in relation to an injury (referred to in this clause as a transitional injury ) that is partially attributable to a trauma that occurred before the appointed day and partially attributable to a trauma that occurred on or after the appointed day, but does not affect rights (referred to in this clause as antecedent rights ) that had accrued before the appointed day in respect of a transitional injury.
(3) The following provisions apply in relation to a transitional injury:
(a) where a compensating authority pays or is liable to pay compensation to a claimant under this Act in relation to a transitional injury, the compensating authority is subrogated, to an appropriate extent, to the antecedent rights of the claimant;
(b) where the claimant has received, in pursuance of antecedent rights, damages or compensation (not being weekly payments for a period of incapacity that concluded before the appointed day), there will be an appropriate reduction in the amount of compensation payable under this Act in respect of the injury;
(c) the extent of a subrogation under paragraph (a), or a reduction in the amount of compensation under paragraph (b), will be determined having regard to—
(i) the amount of the compensation payable (apart from this subclause) under this Act in respect of the transitional injury; and
(ii) the extent to which the transitional injury is attributable to a trauma that occurred before the appointed day; and
(iii) any other relevant factors.
(4) Where a compensating authority—
(a) pays compensation to a claimant under this Act; and
(b) becomes entitled to recover a proportion of the payment from an employer by virtue of subrogation to the rights of the claimant under subclause (3)(a); and
(c) notifies that employer in writing of the payment,
the amount recoverable from the employer will be increased by interest at the prescribed rate as from the date of the notification.
(5) The Corporation will, in the first instance, make a determination of—
(a) the extent of a subrogation under subclause (3)(a) or a reduction in the amount of compensation under subclause (3)(b); and
(b) the amount of any consequential liability.
(6) Before making such a determination the Corporation must allow any person whose interests may be affected by the determination a reasonable opportunity to make representations to the Corporation on the subject matter of the determination and when the determination is made the Corporation must give written notification of the terms of the determination to every person whose interests are affected by it.
(7) Any such person may, by written notice served personally or by post on the Corporation within 1 month after receiving notice of the determination or such longer period as the Corporation may allow, dispute the determination.
(8) Any such dispute may be referred on the application of any party affected by the determination to SAET.
(9) Where a dispute is so referred, SAET will review the Corporation's determination and may confirm, vary or revoke it.
(10) Subject to the regulations, a determination by the Corporation under this clause may be enforced in the same way as a decision of SAET.
(11) A determination by the Corporation may be enforced notwithstanding that it is disputed, but if it appears from the result of a review that a compensating authority has recovered an amount in pursuance of the determination to which the compensating authority is not entitled, that amount must be repaid together with interest at the prescribed rate.
60—Mining and Quarrying Industries Fund
(1) The scheme established under Part 9 of the 1971 Act continues in existence for the settlement of claims and other matters arising in relation to death or disablement from silicosis suffered before the appointed day except that the Corporation will be liable to satisfy any claim made under the scheme.
(2) The money held by the Corporation in connection with the operation of subclause (1) must be held in a special account entitled the Mining and Quarrying Industries Fund .
(3) The Mining and Quarrying Industries Fund is to be notionally divided into 2 parts (Part A and Part B), 1 part (Part A) to be available to the Corporation to satisfy its liabilities under subclause (1) and the balance (Part B) to be available to the Mining and Quarrying Occupational Health and Safety Committee under Schedule 2 of the Work Health and Safety Act 2012 for the purposes referred to in that Schedule.
(4) For the purposes of the division of the Mining and Quarrying Industries Fund into 2 parts—
(a) the Corporation must at 3 yearly intervals arrange for an actuary to estimate the extent of the Corporation's existing and prospective liabilities under subclause (1) at that date; and
(b) —
(i) if it appears from any such estimate that the amount standing to the credit of Part A exceeds the amount required to satisfy the Corporation's liabilities under subclause (1), the amount of the excess must be transferred from Part A to Part B;
(ii) if it appears from any such estimate that the amount standing to the credit of Part A is less than the amount required to satisfy the Corporation's liabilities under subclause (1), the amount required to make up the deficiency must be transferred from Part B to Part A.
(5) The Corporation must keep separate accounting records for Parts A and B.
(6) Money standing to the credit of the Mining and Quarrying Industries Fund (and not immediately required for the purposes of the fund) may be invested as if it were part of the Compensation Fund.
(7) Income and accretions produced by the investment of the money must be shared between Parts A and B (the amount of the shares being determined according to the extent to which money held on each account has contributed to the amount invested).
(8) The Corporation may debit the Mining and Quarrying Industries Fund with the reasonable costs of administering the fund.
(1) The Statutory Reserve Fund (referred to in section 118c of the 1971 Act) must continue to be held as a separate part of the Compensation Fund.
(2) Division 4 of Part 10A (ie sections 118d to 118e) of the 1971 Act, and related interpretative provisions, continue in force subject to the following modifications:
(a) references to the Commission are to be read as references to the Corporation;
(b) references to the fund are to be read as references to the Statutory Reserve Fund held under subclause (1);
(c) references to the Treasurer are to be read as references to the Corporation;
(d) references to the Court are to be read as references to SAET;
(e) section 118d(10) is modified to read as follows:
(10) On an appeal under this section, SAET has power to review all aspects of the Corporation's determination.;
(f) after section 118d(12) subsections are inserted in the following terms:
(13) Any amounts recovered by the Corporation in the exercise of rights to which it is subrogated under subsection (12) must be paid into the fund.
(14) A claim made under this section before the date of transition that had not been disposed of at the date of transition (a pre-transition claim ), is taken to have been made against the Corporation as if this section had been in force in its modified form when the claim was made and it was then made against the Corporation.
(15) It follows that the Corporation assumes responsibility for administering pre-transition claims and is substituted for the Commission or the Treasurer (as the case requires) in any legal proceedings relating to such claims.
(16) Any rights of subrogation that existed in favour of the Treasurer immediately before the date of transition are transferred to the Corporation.
(17) The Corporation may recoup administrative expenses and legal costs related to claims under this section from the fund.
(18) The Corporation may intervene and be heard in proceedings before a court if there is a prospect that a claim before the court, or a judgment of the court, may lead to a claim under this section.
(19) In this section—
date of transition means the date on which the Workers Rehabilitation and Compensation (SGIC) Amendment Act 1996 came into operation.
(1) The Insurance Assistance Fund must continue to be held as a separate part of the Compensation Fund.
(2) The Governor may, by proclamation, transfer rights and liabilities of the insurer under a section 118g policy from the Motor Accident Commission to the Corporation.
(3) The Motor Accident Commission may delegate to the Corporation its responsibility for administering claims under section 118g policies.
(4) The Corporation may, by an authorised contract or arrangement—
(a) delegate its responsibility for administering claims under section 118g policies in relation to which the rights and liabilities of the insurer have been transferred to the Corporation under subclause (2); or
(b) subdelegate a responsibility for administering claims under section 118g policies delegated to it under subclause (3).
(5) The Motor Accident Commission or the Corporation (as the case requires) may recoup expenditure covering liabilities under section 118g policies and associated administrative and legal costs (other than expenditure and costs covered by a contract of reinsurance) from the Insurance Assistance Fund and, if that proves insufficient, from the Statutory Reserve Fund.
(6) In this clause—
authorised contract or arrangement means a contract or arrangement authorised by regulation under section 14 of the WorkCover Corporation Act 1994 ;
section 118g policy means a policy of insurance issued under section 118g(3) of the 1971 Act.
(1) The Statutory Reserve Fund and the Insurance Assistance Fund may be invested in common with the Compensation Fund as if they formed part of the Compensation Fund.
(2) For the purposes of financial reporting and actuarial valuations, the Statutory Reserve Fund and the Insurance Assistance Fund will be taken to form part of the Compensation Fund.
(3) If the Corporation is of the opinion that the balance of the Statutory Reserve Fund or the Insurance Assistance Fund exceeds the amount reasonably required for the purposes for which the relevant fund exists, the Corporation may, with the Minister's consent, transfer the surplus to the Compensation Fund.
The Corporation is entitled to possession of all documents and other materials in the possession or power of the Motor Accident Commission relevant to claims against the Statutory Reserve Fund or to liabilities under policies of insurance transferred to the Corporation in connection with the scheme continued under this Schedule.
65—Loss of earning capacity—capital loss assessments
(1) Division 4B of Part 4 of the repealed Act, as in existence immediately before the designated day, will be taken to continue to apply with respect to any case where the Corporation or a self-insured employer has made any assessment (including an interim assessment) under section 42A of the repealed Act before the designated day.
(2) If a worker to whom subclause (1) applies has not, immediately before the commencement of this clause, received a final assessment of loss under the Division of the repealed Act referred to in subclause (1), any further assessment under that Division will be made on the basis that the worker is taken to be a seriously injured worker for the purposes of the assessment.
Division 10—Work health and safety administration costs
66—Work health and safety administration costs
(1) In this clause—
WHS Act means the Work Health and Safety Act 2012 .
(2) The prescribed percentage of the prescribed amount under Schedule 5, clause 2(7) and (8) of the WHS Act (as amended by this Act) for the 2015/2016 financial year must be at least equal to the total of the prescribed percentage of the prescribed amount under Schedule 5, clause 2(7) and (8) of the WHS Act for the 2014/2015 financial year and the amount payable under Schedule 5, clause 3 of the WHS Act for the 2014/2015 financial year (and if a regulation is not made under Schedule 5, clause 2(7) or (8) of the WHS Act (as amended by this Act) for the 2015/2016 financial year then the total amount described in this subclause will apply under that clause).
Division 11—Renewal of authorised contracts
67—Renewal of authorised contracts
Section 14(4a)(a) of the WorkCover Corporation Act 1994 does not apply to a regulation under section 14(4)(d) of that Act that is expressed to come into operation on 1 July 2015.
Division 12—Review of provisions relating to firefighters
(1) In addition to causing a review of this Act to be conducted as required under section 203, the Minister must, as soon as possible after 1 July 2018, appoint a person to carry out a review concerning the operation and impact of—
(a) the amendments to the Workers Rehabilitation and Compensation Act 1986 made by the Workers Rehabilitation and Compensation (Firefighters) Amendment Act 2013 and Part 8 of this Schedule; and
(b) Schedule 3 of this Act.
(2) The person appointed by the Minister under subclause (1) must present to the Minister a report on the outcome of the review no later than 4 months following his or her appointment.
(3) The Minister must, within 6 sitting days after receiving the report, have copies of the report laid before both Houses of Parliament.
Division 13—Regulations
69—Additional transitional provisions—regulations
(1) The Governor may, by regulation, make additional provisions of a saving or transitional nature consequent on the enactment of this Act.
(2) A provision of a regulation made under subclause (1) may, if the regulations so provide, take effect from the commencement of this Act or from a later day.
(3) To the extent that a provision takes effect under subclause (2) from a day earlier than the day of the regulation's publication in the Gazette, the provision does not operate to the disadvantage of a worker by decreasing a right that existed immediately before that date of publication in the Gazette.