South Australian Numbered Acts South Australian Numbered Acts16—Amendment of section 36—Discontinuance of weekly payments
(1)
Section 36(1)—delete paragraph (h) and substitute:
(h) the
worker's entitlement to weekly payments ceases because of the passage of time;
or
(i)
the worker's entitlement to weekly payments ceases
because of the occurrence of some other event or the making of some other
decision or determination that, under another provision of this Act, brings
the entitlement to weekly payments to an end or the discontinuance of weekly
payments is otherwise authorised or required under another provision of this
Act.
(2)
Section 36(1a)—after paragraph (f) insert:
(fa) the
worker refuses or fails to participate in assessments of the worker's
capacity, rehabilitation progress or future employment prospects (including by
failing to attend); or
(3)
Section 36(2)(c)—delete paragraph (c) and substitute:
(c) the
worker has recommenced work as an employee or as a self-employed contractor,
or the worker has had an increase in remuneration as an employee or a
self-employed contractor; or
(d) the
worker's entitlement to weekly payments reduces because of the passage of
time; or
(e) the
worker's entitlement to weekly payments reduces because of the occurrence of
some other event or the making of some other decision or determination that,
under another provision of this Act, is expressed to result in a reduction to
an entitlement to weekly payments or the reduction of weekly payments is
otherwise authorised or required under another provision of this Act.
(4)
Section 36(2)—delete "(and any reduction made on the basis of this
subsection must be consistent with section 35)"
(5)
Section 36(3a)—delete "21 days" and substitute:
the prescribed number of days
(6)
Section 36(3a)—after paragraph (b) insert:
(ba)
where a decision to reduce weekly payments is made on account of the end of
the first entitlement period or the second entitlement period under
section 35A; or
(bb)
where a decision to discontinue weekly payments is made on account of the end
of the third entitlement period under section 35A; or
(bc)
where a decision to discontinue weekly payments is made on account of—
(i)
a review by the Corporation under section 35B(3); or
(ii)
a decision of the Corporation under
section 35C(5)(a); or
(7)
Section 36—after subsection (3a) insert:
(3b) For the purposes
of subsection (3a), the prescribed number of days is—
(a) if
the worker has been receiving weekly payments under this Division (or
Division 7A) for a period that is less than 52 weeks, or for 2 or more
periods that aggregate less than 52 weeks—14 days;
(b) in
any other case—28 days.
(8) Section 36(4),
(4a) and (5)—delete subsections (4), (4a) and (5) and substitute:
(4) Subject to
complying with subsection (3a), a discontinuance or reduction of weekly
payments under this section takes effect in accordance with the terms of the
Corporation's notice under subsection (3).
(5) The effect of a
decision to discontinue or reduce weekly payments is not affected by the
worker lodging a notice of dispute under Part 6A.
(5a) If a dispute is
resolved in favour of the worker at the reconsideration, conciliation or
judicial determination stage, or on an appeal, the worker is entitled to be
paid—
(a) in
the case of a reconsideration—the total amount that, under the terms of
the reconsideration, should have been paid to the worker between the date that
the disputed decision took effect and the date that the decision, as varied
under the reconsideration, takes effect (less any amount paid to the worker
under subsection (15));
(b) in
the case of a resolution at the conciliation stage—any amount payable
under the terms of the relevant settlement;
(c) in
the case of a judicial determination or determination or on appeal—the
amount that, under the terms of the determination or according to the outcome
of the appeal, would have constituted the worker's entitlements under this Act
had the weekly payments not been discontinued or reduced (as the case may be),
taking into account any amount paid to the worker under a preceding paragraph,
under subsection (15), or under another provision of this Act, and subject to
the specific terms of any determination or order made as a result of the
judicial determination or appeal (as the case may be).
(5b) An amount paid
under subsection (5a) will be taken to be an amount in arrears under
section 47 (with interest payable subject to the operation of
section 47(2)).
(5c) If a dispute is
ultimately resolved in favour of the Corporation and the worker has been paid
an amount in excess of the amount of the worker's lawful entitlements to
weekly benefits on account of the operation of subsection (5a)(c) or
(15), the Corporation may, at the Corporation's discretion (but subject to the
regulations)—
(a)
recover the amount of the excess (together with any interest on that amount
paid by the Corporation) from the worker as a debt; or
(b) set
off the amount recoverable under paragraph (a) against liabilities of the
Corporation to make payments to the worker under this Act.
(9)
Section 36—after subsection (13) insert:
(14) In connection
with the operation of subsection (1) (and to avoid doubt), a worker is
required—
(a) to
take reasonable steps to attend any appointment reasonably required for the
purposes of this Division; and
(b) to
take reasonable steps to comply with any requirement reasonably required under
a rehabilitation program or a rehabilitation and return to work plan,
(and a failure to comply with these requirements constitutes a ground for the
discontinuance of payments under this section).
(15) Despite
subsections (4) and (5), if—
(a) a
worker who has—
(i)
received a notice of discontinuance of weekly payments
under this section; and
(ii)
lodged a notice of dispute under Part 6A,
applies to the WorkCover Ombudsman for a review of the decision to discontinue
weekly payments; and
(b) on
the application for review it appears to the WorkCover Ombudsman that it was
not reasonably open to the Corporation to decide to discontinue the payments
having regard to the circumstances of the case,
the WorkCover Ombudsman may suspend the operation of the decision to
discontinue weekly payments.
(16) Weekly payments
reinstated under subsection (15) will continue until—
(a) the
notice of dispute is withdrawn; or
(b) the
matter is resolved on reconsideration by the Corporation or at conciliation
(or otherwise between the parties); or
(c) the
Tribunal—
(i)
determines the matter in the exercise of its judicial
function; or
(ii)
pending its determination of the matter—orders that
the worker should no longer have the benefit of the weekly payments due to
some unreasonable act, omission or delay on the part of the worker in
connection with the proceedings.
(17) In connection
with the operation of subsection (15)—
(a) the
WorkCover Ombudsman should seek to consider an application for review under
subsection (15)(a) as expeditiously as is reasonably practicable; and
(b) the
WorkCover Ombudsman has an absolute discretion as to whether or not the worker
or the Corporation will be heard on the review; and
(c) a
decision of the WorkCover Ombudsman on a review is not subject to appeal or
review under this or any other Act or law.