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PARLIAMENT OF VICTORIA
Accident Compensation Amendment Bill 2009
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purpose 1
2 Commencement 2
PART 2--WORKERS' ENTITLEMENT TO COMPENSATION 3
3 Definitions 3
4 Pre-injury average weekly earnings 3
5 Calculation of additional amount 4
6 New subsection inserted in section 5A 4
7 References to $1130 substituted 4
8 Definition of full time student 4
9 Amendment of section 14(3) 5
10 New section 14AA inserted 5
14AA Municipal Councillors 5
11 New sections 16A and 17 inserted 6
16A Riders and drivers in certain races 6
17 Outworkers 7
12 Claims for mental injury 10
13 Further amendment of section 82 11
14 Definitions 11
15 New sections 82A to 82D inserted 14
82A Circumstances in which weekly payments are reduced
because of conviction for drink-driving offence 14
82B Circumstances in which weekly payments are reduced
because of conviction for drug-driving offence 16
82C No entitlement to compensation where conviction for
certain serious road traffic offences 17
82D Where conviction or finding of guilt overturned 18
16 New section 114BA inserted 19
114BA Notice of reduction of weekly payments 19
17 New sections 239AAA, 239AAB and 239AAC inserted 20
239AAA Access to police records 20
239AAB Court to provide certificate of conviction 21
239AAC VicRoads may disclose information to Authority 22
18 Amendment of Road Safety Act 1986 23
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PART 3--ENSURING TIMELY ACCESS TO BENEFITS 24
19 Amendment of section 103 24
20 Amendment of sections 105 and 108 27
21 New section 109 substituted 30
109 Responsibilities of self-insurers and the Authority 30
22 Amendment of section 242 33
23 New sections 242AA to 242AF inserted 33
242AA Offence to engage in discriminatory conduct 33
242AB Order for damages or reinstatement 35
242AC Procedure if prosecution is not brought under section
242AA 37
242AD Civil proceedings relating to discriminatory conduct 39
242AE Effect of orders on other orders under section 242AA,
242AB or 242AD 43
242AF Claims under section 242AB or 242AD 44
24 Proceedings under section 242AA to be instituted within
3 years 44
25 Amendment of section 138B 44
26 New section 252J inserted 44
252J Supreme Court--limitation of jurisdiction 44
27 New section 252K inserted 45
252K Supreme Court--limitation of jurisdiction 45
PART 4--BETTER INCOME REPLACEMENT 46
28 Definitions 46
29 New section 55AA inserted 47
55AA Referral of medical question without consent 47
30 New section 91E inserted 48
91E Definitions applicable to this Division 48
31 New sections 93A to 93CA substituted 50
93A Weekly payments in first entitlement period 50
93B Weekly payments in second entitlement period 53
93C Weekly payments after the second entitlement period 56
93CA Compensation for incapacity arising from surgery
after second entitlement period 58
32 Amendments consequential on new sections 93A to 93CA 60
33 Further consequential amendments 61
34 New section 93CD substituted 62
93CD Continuation of weekly payments after second
entitlement period 62
35 New section 93CDA inserted 65
93CDA Entitlement under section 93CD not affected by certain
circumstances 65
36 Repeal of section 93DA 66
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37 New section 93CE inserted 66
93CE Compensation in the form of superannuation
contributions 66
38 Consequential amendment of section 59 70
39 State average weekly earnings 71
40 Amendment of section 96 71
41 Amendment of section 96A 73
42 Amendment of section 97 73
43 New section 109AA inserted 73
109AA Employer may request reasons for decision on a claim 73
44 New section 252L inserted 75
252L Supreme Court--limitation of jurisdiction 75
45 Amendment of section 114 75
46 New section 114AA inserted 78
114AA Termination of compensation in the form of
superannuation contributions 78
47 New sections 114EA and 114EB inserted 79
114EA Outstanding superannuation contributions 79
114EB Alteration or termination of superannuation
contributions 80
PART 5--TREATMENT EXPENSES 82
48 Prior approval of medical and like services 82
49 Amendment of section 99--extension to modifications of
home or car 82
50 Notice of cessation of compensation under section 99 83
51 Repeal of section 99AAA 83
52 Limits applying to contributions required towards supported
accommodation costs 83
PART 6--LUMP SUM BENEFITS 85
53 Amendment of section 91 85
54 Compensation for non-economic loss 85
55 Alignment of lump sum and common law pain and suffering
damages 92
56 Amendment of section 100 92
PART 7--ACCESS TO JUSTICE FOR SERIOUSLY INJURED
WORKERS 94
57 Actions for damages--amendment of section 134AB 94
58 New section 134ABAA inserted 98
134ABAA Determination of serious injury application
following death of worker 98
59 New section 134ABB inserted 102
134ABB Calculation of limitation of actions period 102
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60 Repeal of section 134AD 102
61 Actions for damages--amendment of section 135A 102
62 New section 135BBA inserted 103
135BBA Actions by terminally ill workers continued after
death of worker 103
63 New section 135AD inserted 104
135AD Limitation of Actions Act 1958 104
PART 8--PAYMENTS FOR FAMILY MEMBERS
FOLLOWING WORK-RELATED DEATHS 105
64 Definition 105
65 Jurisdiction of Magistrates' Court--amendment of section 43 106
66 Consequential amendments 106
67 Compensation for death of a worker--amendment of
section 92 106
68 Revised compensation for death of worker--amendment of
section 92A 108
69 New section 92AA inserted 111
92AA Reimbursement of expenses incurred by
non-dependent family members of a deceased worker 111
70 Weekly pensions for dependants of worker who dies--
amendment of section 92B 114
71 New section 92D inserted 115
92D Provisional payment 115
72 Indexation--amendment of section 100 119
73 New section 252H inserted 122
252H Supreme Court--limitation of jurisdiction 122
PART 9--TRANSPARENCY IN DECISION-MAKING AND
EFFICIENT RESOLUTION OF DISPUTES 123
74 Definitions 123
75 Jurisdiction of the Magistrates' Court--amendment of
section 43 126
76 Medical questions--amendment of section 45 126
77 New section 48A inserted 128
48A Use of documents relating to worker's claim 128
78 Certain proceedings referred for conciliation--amendment
of section 49 129
79 Appointment of Conciliation Officers--amendment of
section 52D 129
80 Substitution of section 52F 129
52F Senior Conciliation Officer 129
52FA Data to be collected by the Senior Conciliation
Officer 130
81 Removal from office--amendment of section 52I 132
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82 New section 55AB inserted 132
55AB Production and disclosure of information 132
83 Procedures before Conciliation Officers--amendment of
section 56 133
84 Conciliation of disputes--amendment of section 57 134
85 Disputes relating to weekly payments--amendment of
section 59 135
86 Certain evidence inadmissible in proceedings--amendment
of section 61A 135
87 Costs--amendment of section 62 135
88 Establishment and constitution--amendment of section 63 136
89 Procedures and powers--amendment of section 65 137
90 Opinions--amendment of section 68 138
91 New Division 3AA inserted in Part IV 139
Division 3AA--Employer objections 139
114H Definition 139
114I Objection by employer in respect of liability 139
114J Objection lodged out of time 141
114K Authority may refuse to review a decision to which a
claimed employer has objected 141
114L Withdrawal of lodged objection 142
114M Request for information and suspension of review 142
114N Decision following review 144
114O Appeals 145
114P Grounds of appeal 146
114Q Hearing of appeal by Supreme Court 146
114R Costs of worker 147
92 New section 252M inserted 147
252M Supreme Court--limitation of jurisdiction 147
93 Amendment of Magistrates' Court Act 1989 147
PART 10--EMPLOYER PREMIUMS 148
Division 1--Accident Compensation Act 1985 148
94 Definitions 148
95 Section 5C substituted and new sections 5D and 5E inserted 149
5C Value of remuneration comprising fringe benefits 149
5D Remuneration--motor vehicle allowance 149
5E Remuneration--accommodation allowance 151
96 New Division 4 inserted in Part II 152
Division 4--Independent review 152
35 Review of setting of premium and contributions by
self-insurers 152
97 New section 248AB inserted 153
248AB False or misleading statements 153
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98 Investigation of fraud--amendment of section 248B 154
99 New section 248BA inserted 154
248BA Liability of premium adviser 154
Division 2--Accident Compensation (WorkCover Insurance)
Act 1993 155
100 Definitions 155
101 Compulsory WorkCover insurance--amendment of section 7 155
102 WorkCover insurance policy--amendment of section 9 159
103 Premiums order--general provisions--amendment of
section 16 160
104 New section 17A inserted 161
17A Authority may serve notice of premium 161
105 Adjustment of premium--amendment of section 21 161
106 New section 21A inserted 161
21A Premium notices in respect of deemed policy periods 161
107 Repeal of section 22 and consequential amendments 162
108 New section 26A inserted 163
26A Premium avoidance schemes 163
109 Repeal of sections 27, 28, 28A and 28B 164
110 Consequential amendments 164
111 Application of review and adjustment powers--amendment
of section 31 164
112 Section 31A substituted 165
31A Refund of premium may be offset 165
113 Default penalty where failure to provide full true disclosure--
amendment of section 31B 165
114 New Part 2A inserted 165
PART 2A--PREMIUM REVIEW 165
32 Definition 165
33 Employer may apply for review of premium under
this Part 167
34 Payment of premium pending review 168
35 Review only as permitted under this Act 169
36 Time for lodging, and form of, application for review 169
36A Applications for review lodged out of time 170
36B Authority may decline application for review 170
36C Withdrawal of application for review 171
36D Time period for review 171
36E Request for information and suspension of review 171
36F Determination of review 173
36G Payments following review 175
36H Interest payable under section 36L 176
36I Deemed decisions of the Authority 177
36J Appeals 178
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36K Hearing of appeal by Supreme Court 178
36L Premium review by Authority at its discretion 179
36M Adjustment of premium after review 179
115 Registration of section 55(2)(a) employer--amendment of
section 58 179
116 Groups--amendment of section 66 180
117 Joint and several liability of group members--amendment of
section 66A 184
118 Evidence--amendment of section 71 184
119 Supreme Court--limitation of jurisdiction--amendment of
section 77 185
120 Consequential amendments 185
PART 11--RECOVERIES 186
121 Indemnity by third party--new subsection (4A) inserted 186
122 Indemnity by third party--new subsections (6) to (9) inserted 186
123 New section 252I inserted 187
252I Supreme Court--limitation of jurisdiction 187
PART 12--SELF-INSURANCE 188
124 Definitions 188
125 Repeal of section 33A 188
126 Part V substituted 188
PART V--SELF-INSURERS 188
Division 1--General 188
139 Definitions 188
139A Student workers 190
139B Municipal Association of Victoria as self-insurer 191
Division 2--Application for approval as self-insurer 191
140 Determination of eligibility to apply for approval as
self-insurer 191
141 Application for approval as self-insurer 192
141A Estimated rateable remuneration 194
141B Adjustment of application fee 194
Division 3--Approval as self-insurer 196
142 Approval as self-insurer 196
142A Terms and conditions of approval 198
143 Notice to be given to employer if application refused 199
144 Period that approval has effect 200
145 Review of approval 201
145A Revocation of approval 203
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145B Cost associated with revocation recoverable from
employer 205
145C Non-WorkCover employer ceases to be a self-insurer 206
Division 4--Contributions to WorkCover Authority Fund 206
146 Payment of contribution 206
146A Submission of return by self-insurer 207
Division 5--Liability for claims for compensation 208
Subdivision 1--Liability of self-insurer 208
147 Self-insurer's liability to pay compensation 208
147A Claims management 208
148 Liabilities of self-insurer to be guaranteed 209
149 Payments by Authority 211
Subdivision 2--Election by self-insurer to assume liability
for tail claims 212
150 Movement from scheme insurance to self-insurance 212
150A Acquisition of scheme-insured body corporate by
self-insurer 213
150B Guarantee of liability for tail claims 215
150C Payment of settlement amount and other arrangements
on assumption of liability for tail claims 216
150D Subsequent divestment of scheme-insured body
corporate 217
Subdivision 3--Employer or subsidiary of employer ceases
to be self-insurer 218
151 Employer ceases to be self-insurer 218
151A General provisions applying to assessment by an
actuary 220
151B Initial assessment of liability for tail claims 221
151C Annual assessment of tail claims liabilities and
adjustment of payments 222
151D Provision of guarantees 223
151E Review of final revised assessment at the end of the
liability period 227
152 Subsidiary of self-insurer becomes a non-WorkCover
employer 228
Division 6--Miscellaneous 230
153 Guidelines 230
154 Investigation of self-insurer by Ombudsman 232
155 Secrecy provisions 233
561256B.I-9/12/2009 viii BILL LA INTRODUCTION 9/12/2009
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127 New Schedules 4 and 5 inserted 236
SCHEDULE 4--Self-insurers--Pre-application Eligibility
Fee 236
1 Pre-application eligibility fee 236
SCHEDULE 5--Application Fee for Approval as
Self-insurer 238
1 Application fee 238
2 Assessment remuneration 238
3 Fee limit 239
PART 13--RETURN TO WORK 241
128 Repeal of section 93D 241
129 New Part VIIB inserted 241
PART VIIB--RETURN TO WORK 241
Division 1--Preliminary 241
189 Purpose 241
190 Obligations of employers and workers 242
191 Part does not derogate from other provisions in Act 242
192 Definitions 242
193 Application of Part 244
Division 2--Obligations of employers 245
194 Provide employment 245
195 Plan return to work 248
196 Consult about the return to work of a worker 249
197 Nominate a return to work co-ordinator 250
198 Make return to work information available 252
199 Host to co-operate with labour hire employer 253
Division 3--Obligations of workers 254
200 Participate in planning for return to work 254
201 Use occupational rehabilitation services 254
202 Participate in assessments 254
203 Return to work 254
204 Participate in an interview 256
Division 4--Termination of compensation 256
205 Failure to comply with Division 3 256
206 Notification of return to work 259
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Division 5--General provisions 259
207 Resolution of return to work issues 259
208 Information about the employer obligation period 260
209 Authority may give direction 261
210 Compliance code 262
211 Effect of compliance codes 263
212 Disallowance of certain compliance code orders 263
213 Effect of compliance with compliance codes 264
213A Functions of Authority in respect of compliance
codes 264
214 Provisions applying to directions issued by the
Minister 264
214A Disallowance of certain Ministerial directions 265
Division 6--Return to work inspectorate 266
Subdivision 1--Appointment of inspectors 266
214B Interpretation 266
215 Appointment of inspectors 266
216 Identity cards 266
Subdivision 2--Performance of functions or exercise of
powers 267
217 Inspectors subject to Authority's directions 267
218 Power to enter 267
219 Announcement on entry 267
220 Report to be given about entry 268
221 General powers on entry 269
222 Powers in relation to obtaining information 270
223 Return of seized things 271
224 Power to issue Return to Work improvement notice 271
225 Directions or conditions in a Return to Work
improvement notice 273
226 Variation or cancellation of Return to Work
improvement notice 274
227 Issue of Return to Work improvement notice 274
228 Formal irregularity or defect in Return to Work
improvement notice 276
229 Proceedings for offence not affected by Return to
Work improvement notice 276
230 Persons must assist inspector 276
231 Other assistance in exercising powers 277
232 Inspector may take affidavits and statutory
declarations 277
233 Inspector may copy documents 277
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Subdivision 3--Offences 278
234 Offences in relation to inspections 278
235 Offence to impersonate inspector 279
Subdivision 4--Review of decisions 279
236 Which decisions are reviewable 279
236A Internal review 280
236B Review by the Tribunal 282
130 Consequential amendments relating to this Part 283
131 Repeal of Part VI 283
132 New section 20E inserted 284
20E Power to give advice on compliance 284
133 New sections 248D and 248E inserted 284
248D Protection against self-incrimination 284
248E Legal professional privilege and client legal privilege
not affected 285
134 Amendment of section 252 285
135 New section 252AA inserted 285
252AA Procedure if prosecution is not brought 285
136 New section 252N inserted 288
252N Supreme Court--limitation of jurisdiction 288
137 Amendment of Emergency Management Act 1986 288
138 Amendment of Juries Act 2000 288
139 Amendment of Long Service Leave Act 1992 288
140 Amendment of Transport Accident Act 1986 289
141 Amendment of Victoria State Emergency Service Act 2005 289
PART 14--MISCELLANEOUS 290
Division 1--Service Providers 290
142 False or misleading information 290
143 New sections 249AA--249BC inserted 290
249AA Suspension of payments for services 290
249AB Effect of disqualifying offence 293
249B Conduct of service providers 294
249BA Findings of relevant bodies 298
249BB Notice to be given before determination made 300
249BC Authority may publish list of providers subject to
disciplinary action 300
144 Consequential amendment of sections 99 and 249C 301
Division 2--Other Amendments 302
145 Definitions--WorkSafe Victoria 302
146 Definitions 302
147 New section 18A inserted 302
18A Trading name 302
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148 Functions of the Authority [section 20] 303
149 Additional powers of the Authority [section 20B] 304
150 Authorised agents [section 23] 304
151 Appeals [section 52] 304
152 Indexation [section 100] 305
153 Liability to pay compensation--recovery [section 125B] 305
154 Repeal of Division 6 of Part IV 305
155 Power to restrict or ban agents who engage in prohibited
conduct 305
PART 15--REVISION OF PENALTIES 306
Division 1--Accident Compensation Act 1985 306
156 Procedures before Conciliation Officers [section 56] 306
157 Offence to not comply with direction [section 58B] 306
158 Employer to keep registry of injuries etc. [section 101] 306
159 Responsibilities of employer [section 108] 307
160 Payment of weekly payments [section 114D] 307
161 Return to work [section 123] 308
162 Offences [section 129M] 308
163 New section 177 308
177 Failure to comply with a provision of this Part 308
164 Offence of engaging in prohibited conduct [section 181] 309
165 Consequences of prohibited conduct for legal practitioners
[section 183] 310
166 Legal practitioner and agents can be requested to certify as
to prohibited conduct [section 184] 310
167 Power to restrict or ban agents who engage in prohibited
conduct [section 186] 310
168 Warrants to enter and search [section 240A] 311
169 New section 241 substituted 312
241 Offences relating to a person exercising powers
under section 239 or 240 312
170 Offences [section 242] 312
171 Bribery [section 248AA] 313
172 Fraud [section 248] 313
173 False or misleading information [section 248A] 313
174 False information [section 249] 314
175 Obstructing officers [section 250] 314
176 New section 251 substituted 315
251 Undertakings 315
177 New section 251A inserted 316
251A Adverse publicity orders 316
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Division 2--Accident Compensation (WorkCover Insurance)
Act 1993 318
178 Compulsory WorkCover insurance [section 7] 318
179 Issue and renewal of WorkCover insurance policies
[section 10] 318
180 Inspection of policies [section 12] 319
181 Estimate of rateable remuneration [section 18] 319
182 Revised estimates of rateable remuneration [section 20] 319
183 Certificate of rateable remuneration [section 23] 320
184 Information and records to be supplied by insurers
[section 39] 321
185 Payment of premiums [section 42] 321
186 Claims against section 55(2)(a) or 55(2)(d) [section 57] 321
187 Authority may require employer to provide information
[section 60] 322
188 Recovery of premium or penalty 322
189 Books and accounts to be preserved [section 69] 323
190 Warrants to enter and search [section 70] 323
PART 16--TRANSITIONAL PROVISIONS 325
191 New Division 12 inserted in Part IX 325
Division 12--Accident Compensation Amendment
Act 2009 325
301 Definitions 325
302 Section 5A 325
303 Section 14(3) 325
304 Section 82 326
305 Sections 82A-82D 326
306 Section 103 326
307 Sections 105 and 108 326
308 Sections 108(4) 326
309 Section 109 327
310 Sections 242AA-242AF 327
311 Section 55AA 327
312 Section 93CA 327
313 Section 93CD 327
314 Section 93CDA 328
315 Section 93CE 328
316 Section 92B 328
317 Sections 96 and 96A 328
318 Section 109AA 328
319 Section 114 328
320 Section 91 329
321 Section 98C 329
322 Section 43 (Jurisdiction of Magistrates' Court) 329
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323 Section 45 (Medical questions) 329
324 Section 49 (Certain proceedings referred for
conciliation) 329
325 Section 134AB (Actions for damages) 330
326 Section 134ABAA (Determination of serious injury
application following death of worker) 330
327 Section 135A (Actions for damages) 330
328 Section 135BBA (Actions by terminally ill workers
continued after death of worker) 331
329 Section 92 (Compensation for death of a worker) 331
330 Section 92A (Revised compensation for death of
worker) 331
331 Section 92AA (Re-imbursement of expenses incurred
by non-dependant family members of a deceased
worker) 333
332 Section 92B (Weekly pension for dependants of
worker who dies) 333
333 Section 92D (Provisional payment) 333
334 Section 5 (Definition of medical question) 334
335 Section 52D (Appointment of Conciliation Officers) 334
336 Sections 52F and 52FA (Senior Conciliation Officer
and data to be collected by Senior Conciliation
Officer) 334
337 Section 52I (Removal from office) 334
338 Section 55AB (Production and disclosure of
information) 334
339 Section 56 (Procedures before Conciliation Officers) 335
340 Section 57 (Conciliation of disputes) 335
341 Section 59 (Disputes relating to weekly payments) 335
342 Section 62 (Costs) 335
343 Section 63 (Establishment and constitution) 335
344 Section 65 (Procedures and powers) 336
345 Section 68 (Opinions) 336
346 Division 3A of Part IV (Employer obligations) 336
347 Sections 5(9A) and (10) and 5C to 5E (Remuneration) 336
348 Section 138 (Indemnity by third party) 336
349 Section 138 (Indemnity by third party) 337
350 Part VIIB (Return to Work) 337
351 Section 20E (Power to give advice on compliance) 340
352 Retrospective operation of certain instruments of
delegation 340
353 Section 23 341
354 Application for approval as self-insurer 341
355 Terms and conditions of approval 341
356 Period of approval and review of approval as
self-insurer 342
357 Revocation of approval [sections 145A and 145B] 342
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358 Payment of contributions and submission of or
return by self-insurer 342
359 Liability to pay compensation 342
360 Guarantee of liabilities 342
361 Movement from scheme insurance to self-insurance 343
362 Acquisition of scheme-insured body corporate by
self-insurer 343
363 Employer ceases to be a self-insurer 343
364 Sections 249AA, 249AB, 249B and 249BA 343
192 Consequential amendment 344
193 New Division 2 inserted in Part 7 344
Division 2--Accident Compensation Amendment Act 2009 344
78 Definitions 344
79 Section 3(1) (Estimated future claim cost) 344
80 Section 7 (Compulsory WorkCover Insurance) 345
81 Section 9 (WorkCover insurance policy) 345
82 Section 16 (Premiums order--general provisions) 346
83 Section 17A (Authority may serve notice of
premium) 346
84 Section 21 (Adjustment of premium) 346
85 Section 21A (Premium notices in respect of deemed
policy periods) 346
86 Section 31A (Refund of premium may be offset) 346
87 Part 2A (Premium review) 347
88 Section 58 (Registration of section 55(2)(a)
employer) 347
89 Section 66A (Joint and several liability of group
members) 347
90 Section 71 (Evidence) 347
91 Section 57 (Claims against 55(2)(a)) 348
PART 17--REPEAL OF ACT 349
194 Repeal of Act 349
ENDNOTES 350
561256B.I-9/12/2009 xv BILL LA INTRODUCTION 9/12/2009
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Accident Compensation Amendment
Bill 2009
A Bill for an Act to amend the Accident Compensation Act 1985 and
the Accident Compensation (WorkCover Insurance) Act 1993, to
consequentially amend certain other Acts and for other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purpose
The main purpose of this Act is to amend the
Accident Compensation Act 1985 and the
5 Accident Compensation (WorkCover
Insurance) Act 1993 following a review of those
Acts to provide for--
(a) improved and accessible benefits;
(b) better rehabilitation and return to work
10 outcomes;
561256B.I-9/12/2009 1 BILL LA INTRODUCTION 9/12/2009
Accident Compensation Amendment Bill 2009
Part 1--Preliminary
s. 2
(c) greater transparency and accountability;
(d) improved operation of the legislation.
2 Commencement
(1) This Part, sections 59 and 63, Part 16 and Part 17
5 come into operation on the day after the day on
which this Act receives the Royal Assent.
(2) Section 52 is deemed to have come into operation
on 3 December 2003.
(3) Section 49(1) is deemed to have come into
10 operation on 12 December 2007.
(4) Sections 57(4) and 57(5) are deemed to have
come into operation on 17 June 2009.
(5) Part 6 (other than sections 54(6) and 56) and
sections 57(2), 57(3), 60, 67, 68(1), 68(3), 68(4),
15 68(5), 68(6), 68(7), 68(8), 68(9), 68(10), 68(13)
and 70(1) are deemed to have come into operation
on 10 December 2009.
(6) Sections 42 and 45(3) come into operation on
1 January 2010.
20 (7) Part 2 (other than sections 9, 10 and 11), sections
19, 20 and 21, Part 4 (other than sections 42 and
45(3)), Part 5 (other than sections 49(1) and 52),
sections 54(6) and 56, Part 7 (other than sections
57(2), 57(3), 57(4), 57(5), 59, 60 and 63), Part 8
25 (other than sections 67, 68(1), 68(3), 68(4), 68(5),
68(6), 68(7), 68(8), 68(9), 68(10), 68(13) and
70(1)), Part 9 (other than sections 74(3), 74(4), 91
and 92), Part 11, Part 14 and Part 15 come into
operation on 5 April 2010.
30 (8) Sections 9, 10 and 11, Part 3 (other than sections
19, 20 and 21), sections 74(3), 74(4), 91 and 92,
Part 10, Part 12 and Part 13 come into operation
on 1 July 2010.
__________________
561256B.I-9/12/2009 2 BILL LA INTRODUCTION 9/12/2009
Accident Compensation Amendment Bill 2009
Part 2--Workers' Entitlement to Compensation
s. 3
PART 2--WORKERS' ENTITLEMENT TO COMPENSATION
3 Definitions
In section 5(1) of the Accident Compensation See:
Act No.
Act 1985 insert-- 10191.
Reprint No. 15
5 "drive includes to be in control, or in charge, of a as at
17 April 2008
motor vehicle; and
amending
motor vehicle means a motor vehicle within the Act Nos
meaning of section 3(1) of the Road Safety 107/1997,
12/2008,
Act 1986; 24/2008,
65/2008,
10 transport accident means a transport accident 66/2008,
within the meaning of section 3(1) of the 77/2008,
2/2009,
Transport Accident Act 1986;". 68/2009 and
69/2009.
LawToday:
www.
legislation.
vic.gov.au
4 Pre-injury average weekly earnings
In section 5A of the Accident Compensation Act
15 1985--
(a) in subsection (1AA), for "first 26" (where
twice occurring) substitute "first 52";
(b) in subsection (1AB), for "first 26" (where
twice occurring) substitute "first 52";
20 (c) in subsection (1A) (where secondly
occurring), for "first 26" (wherever
occurring) substitute "first 52";
(d) in subsection (1A) (where secondly
occurring), for "sections 93CA and 93CB"
25 substitute "section 93A or 93B";
(e) in subsection (1B), for "first 26" (wherever
occurring) substitute "first 52";
561256B.I-9/12/2009 3 BILL LA INTRODUCTION 9/12/2009
Accident Compensation Amendment Bill 2009
Part 2--Workers' Entitlement to Compensation
s. 5
(f) in subsection (1B), for "sections 93CA and
93CB" substitute "section 93A or 93B".
5 Calculation of additional amount
(1) In section 5A of the Accident Compensation Act
5 1985, the note at the foot of subsection (1B) is
repealed.
(2) In section 5A(1C) of the Accident Compensation
Act 1985, for "annual, sick or other paid leave"
substitute "paid annual leave".
10 6 New subsection inserted in section 5A
After section 5A(2) of the Accident
Compensation Act 1985, insert--
"(2A) For the purposes of subsection (1), if during
the 12 months immediately before the injury,
15 a worker--
(a) is promoted; or
(b) is appointed to a different position--
with the result that the worker's ordinary
time rate of pay is increased, any period
20 before the promotion or appointment takes
effect is to be disregarded for the purpose of
calculating the worker's average weekly
earnings.".
7 References to $1130 substituted
25 In sections 5A(8) and 5A(9) of the Accident
Compensation Act 1985, for "$1130" substitute
"twice the State average weekly earnings".
8 Definition of full time student
(1) For section 5A(10) of the Accident
30 Compensation Act 1985 substitute--
"(10) For the purposes of subsection (9), full-time
student means a person who is undertaking a
course of studies as a full-time student at a
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s. 9
post-secondary education institution within
the meaning of the Education and Training
Reform Act 2006, other than a student who
is employed under a practical placement
5 agreement within the meaning of Part 5.4 of
that Act.
Note
The pre-injury average weekly earnings of a student at
a post-secondary education institution within the
10 meaning of Part 5.4 of the Education and Training
Reform Act 2006 who is employed under a practical
placement agreement under that Part is the amount
deemed by operation of section 5.4.16(5) of that
Act.".
15 (2) In section 5A(11) of the Accident Compensation
Act 1985, for "$903" substitute "$1040".
(3) At the foot of section 5A(11) of the Accident
Compensation Act 1985 insert--
"Note
20 The pre-injury average weekly earnings of a student at a
school within the meaning of Part 5.4 of the Education and
Training Reform Act 2006 who is employed under a work
experience arrangement or a structured workplace learning
arrangement within the meaning of that Part is the amount
25 deemed by operation of section 5.4.9(6) of that Act.".
9 Amendment of section 14(3)
In section 14(3) of the Accident Compensation
Act 1985, omit "(other than a municipal
council)".
30 10 New section 14AA inserted
After section 14A of the Accident Compensation
Act 1985 insert--
"14AA Municipal Councillors
(1) For the purposes of this Act, a Councillor,
35 while carrying out duties as a Councillor, is
deemed to be a worker.
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(2) For the purposes of this Act, the Council of
which a Councillor is a member is deemed,
while the Councillor is carrying out duties as
a Councillor, to be the employer of the
5 Councillor.
(3) In this section--
Councillor and Council have the same
respective meanings as they have in
section 3(1) of the Local Government
10 Act 1989.
(4) The Minister may make guidelines for the
purposes of this section specifying duties
performed by a Councillor that may be taken
not to be duties as a Councillor for the
15 purposes of this Act.
(5) Guidelines made under subsection (4) must
be published--
(a) in the Government Gazette; and
(b) on a Government Internet website.".
20 11 New sections 16A and 17 inserted
After section 16 of the Accident Compensation
Act 1985, insert--
"16A Riders and drivers in certain races
If a person is engaged to participate as--
25 (a) a rider in a horse race or pony race; or
(b) a driver in a harness race--
conducted as part of a mixed sports gathering
within the meaning of the Racing Act 1958
held in accordance with section 19 of the
30 Racing Act 1958--
(c) the rider or driver is deemed, for the
purposes of this Act, while so
participating, to be a worker; and
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s. 11
(d) the club, association or body of persons
holding the mixed sports gathering is
deemed, for the purposes of this Act, to
be the employer of the rider or driver.
5 17 Outworkers
(1) For the purposes of this Act--
(a) subject to subsection (2)--
(i) a natural person who is an
outworker within the meaning of
10 the Outworkers (Improved
Protection) Act 2003 is deemed
to be a worker; and
(ii) a person (other than a family
entity) who engages a natural
15 person who is an outworker to
perform outwork within the
meaning of the Outworkers
(Improved Protection) Act 2003
is deemed to be the employer of
20 the outworker;
(b) if a person engages a family entity to
perform outwork within the meaning of
the Outworkers (Improved
Protection) Act 2003--
25 (i) each person engaged by the family
entity who performs outwork
within the meaning of that Act is
deemed to be a worker; and
(ii) the first-mentioned person is
30 deemed to be the employer of
each person referred to in
subparagraph (i).
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(2) Subsection (1)(a) does not apply if the
outworker does not perform any of the
outwork personally but engages a person to
perform all the outwork.
5 (3) For the purposes of the definition of family
entity, the outworker or a member of the
outworker's family (relevant person), or any
two or more of them together (relevant
persons) are to be taken to have a controlling
10 interest in the family entity if--
(a) where the family entity is a
corporation--
(i) its directors (by whatever name
called); or
15 (ii) a majority of its directors; or
(iii) one or more of its directors is, or
are, entitled to exercise a majority
in voting power at meetings of the
directors--
20 are under an obligation or
understanding to act in accordance with
the directions, instructions or wishes of
the relevant person or relevant persons;
or
25 (b) where the family entity is a corporation
with a share capital--the relevant
person or relevant persons directly or
indirectly exercise, control the exercise
of, or substantially influence the
30 exercise of more than 50% of the
voting power attached to voting shares
or any class of voting shares issued by
the corporation; or
(c) where the family entity is a
35 partnership--the relevant person or
relevant persons together--
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s. 11
(i) own (whether or not beneficially)
more than 50% of the capital of
the partnership; or
(ii) are entitled (whether or not
5 beneficially) to more than 50% of
any profits of the partnership; or
(d) where the family entity is a trustee of a
trust that carries on a business--the
relevant person or relevant persons
10 (whether or not a trustee or trustees of,
or beneficiary or beneficiaries of,
another trust) are beneficiaries in
respect of more than 50% of the value
of the interests in the trust.
15 (4) For the purposes of subsection (3)(d), a
person who, as the result of the exercise of a
power or discretion--
(a) by the trustee of a discretionary trust; or
(b) by any other person; or
20 (c) by a trustee of a discretionary trust and
another person--
may benefit under a discretionary trust is
deemed to be a beneficiary in respect of
more than 50% of the value of the interests
25 in the trust.
(5) In this section--
corporation has the same meaning as in
section 57A of the Corporations Act;
family entity, in relation to an outworker,
30 means--
(a) a corporation;
(b) a partnership;
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(c) a trustee of a trust that carries on a
business--
that does not engage any person other
than the outworker or a member of the
5 outworker's family and in respect of
which one or more of the outworker
and members of the outworker's family
have a controlling interest;
member of the outworker's family, in
10 relation to an outworker, means any of
the following--partner, father, mother,
grandfather, grandmother, son,
daughter, grandson, granddaughter,
brother, sister, uncle, aunt, nephew,
15 niece or cousin.".
12 Claims for mental injury
In section 82 of the Accident Compensation Act
1985, for subsection (2A) substitute--
"(2A) There is no entitlement to compensation in
20 respect of an injury to a worker if the injury
is a mental injury caused wholly or
predominantly by any one or more of the
following--
(a) management action taken on reasonable
25 grounds and in a reasonable manner by
or on behalf of the worker's employer;
or
(b) a decision of the worker's employer, on
reasonable grounds, to take, or not to
30 take any management action; or
(c) any expectation by the worker that any
management action would, or would
not, be taken or a decision made to
take, or not to take, any management
35 action; or
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(d) an application under section 81B of the
Local Government Act 1989, or
proceedings as a result of that
application, in relation to the conduct of
5 a worker who is a Councillor within the
meaning of section 14AA.".
13 Further amendment of section 82
(1) In section 82(2B) and (2C) of the Accident
Compensation Act 1985, for "Compensation is
10 not payable" substitute "There is no entitlement
to compensation".
(2) In section 82(3) of the Accident Compensation
Act 1985, for "compensation is not payable"
substitute "there is no entitlement to
15 compensation".
(3) In section 82 of the Accident Compensation Act
1985, for subsections (4) and (4A) substitute--
"(4) Subject to sections 82A, 82B and 82C, if it is
proved that an injury to a worker is
20 attributable to the worker's serious and wilful
misconduct (including, but not limited to,
being under the influence of intoxicating
liquor or a drug), there is no entitlement to
compensation in respect of that injury.".
25 (4) In section 82(5) of the Accident Compensation
Act 1985, for "serious and permanent
disablement" substitute "severe injury".
14 Definitions
After section 82(9) of the Accident
30 Compensation Act 1985 insert--
"(10) In this section--
management action, in relation to a worker,
includes, but is not limited to, any one
or more of the following--
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Part 2--Workers' Entitlement to Compensation
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(a) appraisal of the worker's
performance;
(b) counselling of the worker;
(c) suspension or stand-down of the
5 worker's employment;
(d) disciplinary action taken in respect
of the worker's employment;
(e) transfer of the worker's
employment;
10 (f) demotion, redeployment or
retrenchment of the worker;
(g) dismissal of the worker;
(h) promotion of the worker;
(i) reclassification of the worker's
15 employment position;
(j) provision of leave of absence to
the worker;
(k) provision to the worker of a
benefit connected with the
20 worker's employment;
(l) training a worker in respect of the
worker's employment;
(m) investigation by the worker's
employer of any alleged
25 misconduct--
(i) of the worker; or
(ii) of any other person relating
to the employer's workforce
in which the worker was
30 involved or to which the
worker was a witness;
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(n) communication in connection with
an action mentioned in any of the
above paragraphs;
permanent blindness means--
5 (a) a field of vision that is constricted
to 10 degrees or less of arc from
central fixation in the better eye,
irrespective of corrected visual
acuity; or
10 (b) a corrected visual acuity of less
than 6/60 on the Snellen Scale in
both eyes; or
(c) a combination of visual defects
resulting in the same degree of
15 visual loss as referred to in
paragraph (a) or (b);
severe injury means--
(a) a significant acquired permanent
brain injury;
20 (b) permanent paraplegia;
(c) permanent quadriplegia;
(d) amputation of a limb, hand or
foot;
(e) full thickness burns that--
25 (i) cause permanent severe
disfigurement to the head or
neck or an arm or a lower
leg; or
(ii) result in a significant
30 permanent inability to
undertake the necessary
activities of daily living;
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(f) an injury that results in permanent
blindness;
(g) a brachial plexus injury that
results in the permanent effective
5 loss of the use of a limb;
(h) a physical internal injury that
results in a significant permanent
inability to undertake the
necessary activities of daily
10 living.".
15 New sections 82A to 82D inserted
After section 82 of the Accident Compensation
Act 1985 insert--
"82A Circumstances in which weekly payments
15 are reduced because of conviction for
drink-driving offence
(1) This section applies if--
(a) a worker's incapacity for work results
from, or is materially contributed to by,
20 an injury that--
(i) entitles the worker to
compensation in the form of
weekly payments; and
(ii) was caused by a transport accident
25 involving a motor vehicle of
which the worker was the driver at
the time of the accident; and
(b) in respect of such driving, the worker is
convicted or found guilty of an offence
30 under section 49(1)(b), (f) or (g) of the
Road Safety Act 1986 or under a law
that is declared to be a corresponding
law under section 47A(2) of the Road
Safety Act 1986.
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(2) In respect of a worker to whom section 52 of
the Road Safety Act 1986 applies,
compensation in the form of weekly
payments under this Part is reduced for a
5 period of 130 weeks (whether or not
consecutive) from the date on which notice
of the reduction is given to the worker in
accordance with section 114(10)--
(a) if the level of alcohol in the worker's
10 blood was more than zero grams and
less than 0·12 grams per 100 millilitres
of blood or in the worker's breath was
more than zero grams and less than
0·12 grams per 210 litres of exhaled
15 air--by one third;
(b) if the level of alcohol in the worker's
blood was not less than 0·12 grams and
less than 0·24 grams per 100 millilitres
of blood or in the worker's breath not
20 less than 0·12 grams and less than
0·24 grams per 210 litres of exhaled
air--by two thirds.
(3) In respect of a worker (other than a worker to
whom section 52 of the Road Safety Act
25 1986 applies), compensation in the form of
weekly payments under this Part is reduced
for a period of 130 weeks (whether or not
consecutive) from the date on which notice
of the reduction is given to the worker in
30 accordance with section 114(10)--
(a) if the level of alcohol in the worker's
blood was not less than 0·05 grams, and
less than 0·12 grams per 100 millilitres
of blood or in the worker's breath not
35 less than 0·05 grams and less than
0·12 grams per 210 litres of exhaled
air--by one third;
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(b) if the level of alcohol in the worker's
blood was not less than 0·12 grams and
less than 0·24 grams per 100 millilitres
of blood or in the worker's breath not
5 less than 0·12 grams and less than
0·24 grams per 210 litres of exhaled
air--by two thirds.
(4) This section does not apply if--
(a) the injury results in death or is a severe
10 injury within the meaning of section 82;
or
(b) the worker satisfies the Authority or
self-insurer that the concentration of, or
presence of, alcohol in the blood or the
15 breath of the worker did not contribute
in any way to the injury.
82B Circumstances in which weekly payments
are reduced because of conviction for
drug-driving offence
20 (1) This section applies if--
(a) a worker's incapacity for work results
from, or is materially contributed to by,
an injury that--
(i) entitles the worker to
25 compensation in the form of
weekly payments; and
(ii) was caused by a transport accident
involving a motor vehicle of
which the worker was the driver at
30 the time of the accident; and
(b) in respect of such driving, the worker is
convicted or found guilty of an offence
under section 49(1)(bb), (h) or (i) of the
Road Safety Act 1986 or under a law
35 of another State or of a Territory that is
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Part 2--Workers' Entitlement to Compensation
s. 15
declared to be a corresponding law
under section 47A(2) of the Road
Safety Act 1986.
(2) Compensation in the form of weekly
5 payments under this Part is reduced by one
third for a period of 130 weeks (whether or
not consecutive) from the date on which
notice of the reduction was given to the
worker under section 114(10).
10 (3) This section does not apply--
(a) if the injury results in death or is a
severe injury within the meaning of
section 82; or
(b) the worker satisfies the Authority or
15 self-insurer that the concentration of, or
presence of, drugs in his or her blood or
oral fluid did not contribute in any way
to the injury.
82C No entitlement to compensation where
20 conviction for certain serious road traffic
offences
(1) A worker is not entitled to compensation
under this Act in respect of an injury if--
(a) the injury was caused by a transport
25 accident involving a motor vehicle of
which the worker was the driver at the
time of the accident; and
(b) in respect of that driving, the worker is
convicted or found guilty of an offence
30 under--
(i) section 49(1)(b), (f) or (g) of the
Road Safety Act 1986 and the
level of alcohol in the worker's
blood was 0·24 grams or more per
35 100 millilitres of blood or in the
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Part 2--Workers' Entitlement to Compensation
s. 15
worker's breath was 0·24 grams or
more per 210 litres of exhaled air;
or
(ii) sections 49(1)(a), (ba), (c), (ca),
5 (d), (e), (ea) or (eb), 56(2) or 56(7)
of the Road Safety Act 1986; or
(iii) section 318 or 319 of the Crimes
Act 1958.
(2) This section does not apply--
10 (a) if the injury results in death or is a
severe injury within the meaning of
section 82; or
(b) where the worker is convicted or found
guilty of an offence specified in
15 subsection (1)(b)(i) or (iii), the worker
satisfies the Authority or self-insurer
that the concentration of, or presence
of, alcohol in his or her blood or breath,
or the concentration of, or presence of,
20 drugs in his or her blood or oral fluid,
did not contribute in any way to the
injury.
82D Where conviction or finding of guilt
overturned
25 If--
(a) compensation in the form of weekly
payments to a worker--
(i) has been reduced in accordance
with section 82A or 82B; or
30 (ii) in accordance with section 82C, is
not payable--
after the worker has been convicted or
found guilty of an offence; and
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(b) the conviction or finding is overturned
on appeal--
the Authority or self-insurer must pay to the
worker, subject to and in accordance with
5 this Act--
(c) the amount by which each weekly
payment had been reduced, or the
amount that had not been paid, together
with interest at the prescribed rate on
10 each such amount, in respect of the
period from the date on which the
payment was due until the date on
which the amount is paid.".
16 New section 114BA inserted
15 After section 114B of the Accident
Compensation Act 1985 insert--
"114BA Notice of reduction of weekly payments
(1) On becoming aware that section 82A, 82B
or 82C applies to a worker who is receiving,
20 or is entitled to receive, compensation in the
form of weekly payments under this Part--
(a) the Authority or self-insurer must give
written notice to the worker in
accordance with section 114(10) of the
25 reduction in the amount of the worker's
weekly payments; and
(b) weekly payments must not be reduced
before the notice has been given.
(2) Section 114(13) does not apply to a notice
30 given under subsection (1) of this section.".
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17 New sections 239AAA, 239AAB and 239AAC
inserted
After section 239 of the Accident Compensation
Act 1985 insert--
5 "239AAA Access to police records
(1) The Chief Commissioner of Police may
furnish to the Authority any information in
the possession or under the control of the
Chief Commissioner that the Authority
10 requests for the purpose of the assessment by
the Authority of a person's entitlement to
compensation and that relates to the
commission, or alleged commission, by a
person of an offence--
15 (a) under the Road Safety Act 1986 or the
Crimes Act 1958 referred to in section
82A, 82B or 82C involving conduct to
which the Authority considers the
injury may be attributable; or
20 (b) that the Authority considers may
comprise serious and wilful misconduct
as referred to in section 82(4), being
conduct to which the Authority
considers the injury may be
25 attributable.
(2) The Authority must pay to the Chief
Commissioner of Police the reasonable costs
of furnishing information under
subsection (1).
30 (3) The use of information furnished to the
Authority under this section is subject to the
compliance by the Authority with any
relevant agreement entered into between the
Authority and the Chief Commissioner of
35 Police or, if there is no such agreement, any
relevant standards established by the
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Part 2--Workers' Entitlement to Compensation
s. 17
Commissioner for Law Enforcement Data
Security under the Commissioner for Law
Enforcement Data Security Act 2005.".
239AAB Court to provide certificate of conviction
5 (1) If--
(a) a person is convicted or found guilty of
an offence--
(i) that the Authority considers may
comprise serious and wilful
10 misconduct as referred to in
section 82(4), being an offence to
which the injury may be
attributable; or
(ii) under the Road Safety Act 1986
15 or the Crimes Act 1958 referred
to in section 82A, 82B or 82C;
and
(b) the court by which the person was
convicted or found guilty made a
20 finding as to the concentration of, or
presence of, alcohol in the person's
blood or breath or the concentration of,
or presence of, a drug in the person's
blood or oral fluid at a particular
25 time--
the court must, at the written request of the
Authority, cause a certificate with particulars
of the conviction or finding of guilt and its
finding as to the concentration of, or
30 presence of, alcohol or a drug to be given to
the Authority.
(2) A certificate of a court given under
subsection (1) is conclusive proof of the
particulars set out in it.
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239AAC VicRoads may disclose information to
Authority
(1) The Roads Corporation may, at the written
request of the Authority, disclose relevant
5 information gained by the Corporation to the
Authority for the purpose of the assessment
by the Authority of a claim by a person for
compensation under this Act, being relevant
information that the Authority considers
10 relates to conduct by the person that the
Authority considers may be conduct to
which the injury to which the claim relates
may be attributable.
(2) In this section--
15 relevant information means details of--
(a) a conviction or finding of guilt; or
(b) an infringement notice within the
meaning of the Infringements
Act 2006; or
20 (c) the concentration of alcohol in a
person's blood or breath--
that relate, or may relate to--
(d) the commission or alleged
commission of an offence under
25 the Road Safety Act 1986 or the
Crimes Act 1958 referred to in
section 82A, 82B or 82C; or
(e) conduct comprising serious and
wilful misconduct as referred to in
30 section 82(4).".
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18 Amendment of Road Safety Act 1986
Before section 92(3)(d) of the Road Safety Act
1986 insert--
"(cc) to the Authority within the meaning of the
5 Accident Compensation Act 1985 in
accordance with a request made under
section 239AAC of that Act; or".
__________________
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Part 3--Ensuring Timely Access to Benefits
s. 19
PART 3--ENSURING TIMELY ACCESS TO BENEFITS
19 Amendment of section 103
(1) In section 103 of the Accident Compensation
Act 1985, for subsections (1), (1A), (1B), (2), (3)
5 and (4), substitute--
"(1) A claim for compensation must be in a form
approved by the Authority in respect of that
type or class of claim.
(2) A claim for compensation in the form of
10 weekly payments must--
(a) state the date on which the worker
ceased work because of the injury; or
(b) be accompanied by a medical
certificate in accordance with
15 section 105; or
(c) be supplemented at a later date by a
medical certificate in accordance with
section 105.
(3) A claim for compensation (other than a claim
20 arising from the death of a worker) must
include an authority, signed by the worker,
authorising a provider of a medical service or
hospital service to the worker in connection
with the injury to which the claim relates to
25 give to the Authority, self-insurer or
employer information regarding the service
relevant to the claim.
(4) Where a claim for compensation in the form
of weekly payments has been given to or
30 served on the employer or self-insurer or
lodged with the Authority but was not
accompanied by a medical certificate,
compensation in the form of weekly
payments is not payable unless and until a
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Part 3--Ensuring Timely Access to Benefits
s. 19
medical certificate in accordance with
section 105 has been given to or served on
the employer or self-insurer or lodged with
the Authority.
5 (4A) A claim for compensation--
(a) must be given to or served on the
employer or self-insurer; or
(b) if section 106 of this Act or Part 5 of
the Accident Compensation
10 (WorkCover Insurance) Act 1993
applies, must be lodged with the
Authority.
(4B) A claim for compensation is deemed to have
been given to or served on the employer or
15 self-insurer or lodged with the Authority if it
is given, served or lodged in accordance with
guidelines made by the Minister.
(4C) The Minister may make guidelines for the
purposes of this section specifying the
20 manner and form in which a claim for
compensation may be given, served or
lodged.
(4D) Guidelines made under subsection (4C) must
be published--
25 (a) in the Government Gazette; and
(b) on a Government Internet website.
(4E) If the employer or self-insurer or the
Authority receives from a worker a claim for
compensation made in accordance with this
30 section, the employer or self-insurer or the
Authority must, as soon as is reasonably
practicable, give the worker
acknowledgement in writing that the claim
has been received.
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Part 3--Ensuring Timely Access to Benefits
s. 19
(4F) A worker may notify the Authority that the
worker has given to or served on the
employer a claim for compensation in the
form of weekly payments by giving to the
5 Authority--
(a) a copy of the claim signed and dated by
the worker; and
(b) a copy of the relevant medical
certificate in accordance with
10 section 105.
(4G) A claim is deemed to have been made in
accordance with this section despite any
material defect, omission or irregularity in
the claim that relates to information that is
15 within the knowledge of the employer or
self-insurer or the Authority, as the case
requires.
(4H) A claim that contains a material defect,
omission or irregularity to which subsection
20 (4G) does not apply is deemed not to have
been made if, within 14 days after the claim
is given to or served on the employer, lodged
with the Authority or given to the self-
insurer, as the case requires, the Authority or
25 the self-insurer returns the claim to the
claimant with a notice that--
(a) specifies in detail each material defect,
omission and irregularity identified in
the claim; and
30 (b) states that any period within which the
claim is required to be dealt with does
not commence until a claim that does
not contain any specified material
defect, omission or irregularity is given
35 to, served on or lodged with the
Authority or the self-insurer.".
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Part 3--Ensuring Timely Access to Benefits
s. 20
(2) In section 103 of the Accident Compensation
Act 1985--
(a) in subsection (7)(a), for "claim for weekly
payments" substitute "claim for
5 compensation in the form of weekly
payments";
(b) in subsection (11)(a) for "section 103(1)(c)"
substitute "section 103(4A)";
(c) in subsection (11)(b), omit "under that
10 section";
(d) in subsection (11)(c), omit "under that Part".
20 Amendment of sections 105 and 108
(1) In section 105(1) of the Accident Compensation
Act 1985, for all words and expressions before
15 paragraph (a) substitute "A medical certificate
referred to in section 103 that relates to a claim for
compensation that is, or includes, compensation in
the form of weekly payments must--".
(2) In section 105 of the Accident Compensation
20 Act 1985, for subsection (4) substitute--
"(4) If a worker is unable to receive
compensation in the form of weekly
payments because he or she does not have a
medical certificate in accordance with this
25 section, the worker may apply to the court
for a determination of the entitlement of the
worker to compensation under this Act.".
(3) In section 108(1) of the Accident Compensation
Act 1985--
30 (a) for paragraph (ab) substitute--
"(ab) any claim for compensation in the form
of weekly payments;
561256B.I-9/12/2009 27 BILL LA INTRODUCTION 9/12/2009
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Part 3--Ensuring Timely Access to Benefits
s. 20
(aba) any relevant medical certificate in
accordance with section 105 relating to
a claim for compensation in the form of
weekly payments;";
5 (b) in paragraph (ba), for "which is rejected by
the employer" substitute "has not been paid
by the employer or which the employer will
not pay pending a decision by the
Authority".
10 (4) In section 108 of the Accident Compensation
Act 1985, subsection (2) is repealed.
(5) In section 108 of the Accident Compensation
Act 1985, for subsection (4) substitute--
"(4) An employer who fails without reasonable
15 cause to forward a claim for compensation in
the form of weekly payments or any relevant
medical certificate in accordance with
section 105, whether with the claim or at a
later date, to the Authority as required by this
20 section is liable for weekly payments made
by the Authority to the worker during the
period--
(a) commencing--
(i) after the employer's liability under
25 the excess under section
125A(3)(a) or (b) is reached; or
(ii) if the claim was accompanied by a
medical certificate in accordance
with section 105, on the day on
30 which the claim was given to or
served on the employer; or
(iii) if the claim was not accompanied
by a medical certificate in
accordance with section 105, on
35 the day on which the employer
received the medical certificate--
561256B.I-9/12/2009 28 BILL LA INTRODUCTION 9/12/2009
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Part 3--Ensuring Timely Access to Benefits
s. 20
whichever is later, and ending on the
later of--
(iv) the day on which the claim for
compensation in the form of
5 weekly payments is received by
the Authority; or
(v) the day on which the medical
certificate is received by the
Authority; or
10 (b) if section 125A(6) applies,
commencing--
(i) immediately after the employer's
liability under section 125A(3)(a)
or (b) has been met by the
15 Authority; or
(ii) if the claim was accompanied by a
medical certificate in accordance
with section 105, on the day on
which the claim was given to or
20 served on the employer; or
(iii) if the claim is not accompanied by
a medical certificate in accordance
with section 105, on the day on
which the employer received the
25 medical certificate--
whichever is later, and ending on the
later of--
(iv) the day on which the claim for
compensation in the form of
30 weekly payments is received by
the Authority; or
(v) the day on which the medical
certificate is received by the
Authority.".
561256B.I-9/12/2009 29 BILL LA INTRODUCTION 9/12/2009
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Part 3--Ensuring Timely Access to Benefits
s. 21
21 New section 109 substituted
For section 109 of the Accident Compensation
Act 1985, substitute--
"109 Responsibilities of self-insurers and the
5 Authority
(1) If the Authority or a self-insurer does not
give written notice of a decision to accept or
reject a claim for compensation in the form
of weekly payments--
10 (a) if the claim was accompanied by a
medical certificate in accordance with
section 105, within 28 days after
receiving the claim; or
(b) if the claim was not accompanied by a
15 medical certificate in accordance with
section 105, within 28 days after
receiving such a medical certificate--
the claim is deemed to have been accepted
and the Authority or self-insurer must pay
20 compensation in the form of weekly
payments to the worker subject to and in
accordance with this Act.
(2) The Authority or a self-insurer must give
written notice of a decision to accept or
25 reject a claim for compensation referred to in
section 108(1)(ba) or (c) within 28 days after
receiving the claim.
(3) The written notice of a decision to accept or
reject a claim for compensation in the form
30 of weekly payments or for compensation for
medical or like services under section 99
must, in the case of a decision to reject the
claim, include a statement of the reasons for
the decision.
561256B.I-9/12/2009 30 BILL LA INTRODUCTION 9/12/2009
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Part 3--Ensuring Timely Access to Benefits
s. 21
(4) If--
(a) a worker notifies the Authority of a
claim given to the employer under
section 103(4F); and
5 (b) the Authority receives from the
employer, within the period referred to
in section 108(1), the claim and the
relevant medical certificate in
accordance with section 105, and does
10 not give notice of a decision to accept
or reject the claim within 28 days after
the Authority receives the claim and
medical certificate--
the claim is deemed to have been accepted
15 by the Authority and the Authority must pay
compensation in the form of weekly
payments to the worker, subject to and in
accordance with this Part.
(5) If--
20 (a) a worker notifies the Authority of a
claim given to the employer under
section 103(4F) that is accompanied by
a medical certificate in accordance with
section 105; and
25 (b) the Authority does not receive the claim
from the employer within the period
referred to in section 108(1); and
(c) the Authority does not give notice of a
decision to accept or reject the claim
30 within 39 days after the Authority
receives notice of the claim--
the claim is deemed to have been accepted
by the Authority and the Authority must pay
compensation in the form of weekly
35 payments to the worker, subject to and in
accordance with this Part.
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Part 3--Ensuring Timely Access to Benefits
s. 21
(6) If the Authority receives a claim in
accordance with section 103(2) (not being a
claim that has been rejected under this
section) for compensation in the form of
5 weekly payments that is accompanied by the
relevant medical certificate in accordance
with section 105 from the employer more
than 28 days after the expiry of the period of
10 days referred to in section 108--
10 (a) the claim is deemed to have been
accepted; and
(b) the Authority must pay compensation
in the form of weekly payments to the
worker, subject to and in accordance
15 with this Act.
(7) A decision or deemed decision under this
section is binding on the employer in respect
of the employer's liability under the
employer's excess.
20 (8) If subsection (6) applies--
(a) a deemed decision under that
subsection is binding on the employer;
(b) the employer is liable for all weekly
payments made to the worker by the
25 Authority after--
(i) the day on which the claim was
given to the employer; or
(ii) if the claim was not accompanied
by a medical certificate in
30 accordance with section 105, the
day on which the certificate is
given to the employer--
whichever is the later, until the day on
which the claim and the medical
561256B.I-9/12/2009 32 BILL LA INTRODUCTION 9/12/2009
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Part 3--Ensuring Timely Access to Benefits
s. 22
certificate have been received by the
Authority from the employer.".
22 Amendment of section 242
In section 242 of the Accident Compensation
5 Act 1985, subsections (2) and (3) are repealed.
23 New sections 242AA to 242AF inserted
After section 242 of the Accident Compensation
Act 1985 insert--
"242AA Offence to engage in discriminatory
10 conduct
(1) An employer or prospective employer must
not engage in discriminatory conduct for a
prohibited reason.
Penalty: 240 penalty units for a natural
15 person;
1200 penalty units for a body
corporate.
(2) For the purposes of this section, an employer
engages in discriminatory conduct if the
20 employer--
(a) dismisses, or threatens to dismiss, a
worker from employment; or
(b) alters, or threatens to alter, the position
of a worker to the worker's detriment;
25 or
(c) treats a worker less favourably than
another worker in relation to promotion
or re-employment.
(3) Conduct referred to in subsection (2) is
30 engaged in for a prohibited reason if the
dominant reason is because the worker--
(a) has given the employer or any other
employer notice of an injury; or
561256B.I-9/12/2009 33 BILL LA INTRODUCTION 9/12/2009
Accident Compensation Amendment Bill 2009
Part 3--Ensuring Timely Access to Benefits
s. 23
(b) has taken steps to pursue a claim for
compensation against the employer or
any other employer; or
(c) has given, or attempted to give, a claim
5 for compensation to the employer or
any other employer, the Authority or a
self-insurer; or
(d) has complied with a request made
under section 239 or 240.
10 (4) For the purposes of this section, a
prospective employer engages in
discriminatory conduct if the prospective
employer--
(a) refuses or fails to offer employment to
15 an applicant for employment; or
(b) in offering, or refusing to offer, terms
of employment, treats an applicant for
employment less favourably than
another applicant for employment.
20 (5) Conduct referred to in subsection (4) is
engaged in for a prohibited reason if the
dominant reason is because the applicant for
employment--
(a) has given an employer notice of an
25 injury; or
(b) has taken steps to pursue a claim for
compensation against an employer; or
(c) has given or attempted to give a claim
for compensation to an employer, the
30 Authority or a self-insurer; or
(d) has complied with a request made
under section 239 or 240.
561256B.I-9/12/2009 34 BILL LA INTRODUCTION 9/12/2009
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Part 3--Ensuring Timely Access to Benefits
s. 23
(6) In proceedings for an offence against this
section, if all the facts constituting the
discriminatory conduct are proved, the
employer or prospective employer bears the
5 burden of adducing evidence that the reason
alleged in the charge was not the dominant
reason why the employer or prospective
employer engaged in the conduct.
(7) It is a defence to proceedings for an offence
10 against this section if the employer or
prospective employer proves that--
(a) the relevant conduct was necessary to
comply with the requirements of this
Act or the Occupational Health and
15 Safety Act 2004; or
(b) the worker or applicant for employment
was unable to perform the inherent
requirements of the employment, even
if the employer or prospective
20 employer had made reasonable
adjustments to those requirements; or
(c) the worker was engaged in fraud or
dishonesty in relation to, or associated
with, the giving of notice of the injury
25 or pursuit of the claim for
compensation.
242AB Order for damages or reinstatement
(1) If an employer or prospective employer is
convicted or found guilty of an offence
30 against section 242AA in respect of a worker
or applicant for employment, the court may
(in addition to imposing a penalty) make one
or more of the following orders--
(a) an order that the employer or
35 prospective employer pay (within a
specified period) to the worker or
561256B.I-9/12/2009 35 BILL LA INTRODUCTION 9/12/2009
Accident Compensation Amendment Bill 2009
Part 3--Ensuring Timely Access to Benefits
s. 23
applicant for employment such
damages as the court considers
appropriate to compensate the worker
or applicant for hurt and humiliation as
5 the result of the discriminatory conduct;
(b) an order that the employer or
prospective employer pay the worker or
applicant an amount not exceeding the
remuneration that--
10 (i) in the case of a worker, but for the
discriminatory conduct, the
worker would have received from
that employer during the
12 months immediately after the
15 discriminatory conduct was
engaged in;
(ii) in the case of an applicant for
employment, the applicant would
have received if the applicant had
20 been employed by that prospective
employer for a period not
exceeding 12 months from the day
on which the applicant made the
application for employment;
25 (c) an order that--
(i) the worker be reinstated or
re-employed in the worker's
former position or, if that position
is not available, in a similar
30 position; or
(ii) the worker or applicant for
employment be employed in the
position for which he or she had
applied or a similar position.
561256B.I-9/12/2009 36 BILL LA INTRODUCTION 9/12/2009
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Part 3--Ensuring Timely Access to Benefits
s. 23
(2) In making any order under this section, the
court must take into account any
compensation or damages received by the
worker in respect of any injury to which the
5 discriminatory conduct relates.
(3) Nothing in a proceeding referred to in
section 242AA or 242AD gives rise to an
issue estoppel in relation to a claim for
compensation under this Act or an
10 application or proceedings referred to in
section 134AB.
242AC Procedure if prosecution is not brought
under section 242AA
(1) If--
15 (a) a worker or applicant for employment
considers that an offence against
section 242AA has occurred; and
(b) no prosecution has been brought in
respect of that occurrence within
20 6 months of that occurrence--
the worker or applicant for employment may
request in writing that the Authority bring a
prosecution in respect of that occurrence.
(2) Within 3 months after it receives a request
25 under subsection (1), the Authority--
(a) must investigate the matter; and
(b) must advise (in writing) the worker or
applicant for employment that a
prosecution has been or will be brought
30 or give reasons why a prosecution will
not be brought.
561256B.I-9/12/2009 37 BILL LA INTRODUCTION 9/12/2009
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Part 3--Ensuring Timely Access to Benefits
s. 23
(3) If the Authority advises the worker or
applicant for employment that a prosecution
will not be brought, the Authority must refer
the matter to the Director of Public
5 Prosecutions if the worker or applicant for
employment requests (in writing) that the
Authority do so.
(4) The Director of Public Prosecutions must
consider the matter and advise (in writing)
10 the Authority whether or not the Director
considers that a prosecution should be
brought.
(5) The Authority must ensure a copy of the
advice is sent to the worker or applicant for
15 employment who made the request and, if
the Authority declines to follow advice from
the Director of Public Prosecutions to bring
proceedings, the Authority must give the
worker or applicant for employment written
20 reasons for its decision.
(6) The Authority must include in its annual
report, and publish on its website, a
statement setting out--
(a) the number of requests received by the
25 Authority under subsection (1); and
(b) the number of cases in which the
Authority has advised under subsection
(2)(b) that a prosecution has been or
will be brought, or will not brought;
30 and
(c) the number of cases in which the
Director of Public Prosecutions has
advised under subsection (4) that a
prosecution should be brought or
35 should not be brought.
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Part 3--Ensuring Timely Access to Benefits
s. 23
(7) No proceedings may be brought in respect of
a decision to bring or not to bring
proceedings for an offence under
section 242AA.
5 (8) For the purposes of subsection (7),
proceedings includes--
(a) the inquiry into, hearing and
determination of any question or matter
under this Act;
10 (b) seeking the grant of any relief or
remedy in the nature of certiorari,
prohibition, mandamus or quo
warranto, or the grant of a declaration
of right or an injunction;
15 (c) seeking any order under the
Administrative Law Act 1978;
(d) any other action or proceeding.
242AD Civil proceedings relating to
discriminatory conduct
20 (1) For the purposes of this section, an employer
engages in discriminatory conduct if the
employer--
(a) dismisses, or threatens to dismiss, a
worker from employment; or
25 (b) alters, or threatens to alter, the position
of a worker to the worker's detriment;
or
(c) treats a worker less favourably than
another worker in relation to promotion
30 or re-employment.
(2) Conduct referred to in subsection (1) is
engaged in for a prohibited reason if a
substantial reason is because the worker--
561256B.I-9/12/2009 39 BILL LA INTRODUCTION 9/12/2009
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Part 3--Ensuring Timely Access to Benefits
s. 23
(a) has given the employer or any other
employer notice of an injury; or
(b) has taken steps to pursue a claim for
compensation against the employer or
5 any other employer; or
(c) has given, or attempted to give, a claim
for compensation to the employer or
any other employer, the Authority or a
self-insurer; or
10 (d) has complied with a request made
under section 239 or 240.
(3) For the purposes of this section, a
prospective employer engages in
discriminatory conduct if the prospective
15 employer--
(a) refuses or fails to offer employment to
an applicant for employment; or
(b) in offering, or refusing to offer, terms
of employment, treats an applicant for
20 employment less favourably than
another applicant for employment.
(4) Conduct referred to in subsection (3) is
engaged in for a prohibited reason if a
substantial reason is because the applicant
25 for employment--
(a) has given an employer notice of an
injury; or
(b) has taken steps to pursue a claim for
compensation against an employer; or
30 (c) has given or attempted to give a claim
for compensation to an employer, the
Authority or a self-insurer; or
(d) has complied with a request made
under section 239 or 240.
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Part 3--Ensuring Timely Access to Benefits
s. 23
(5) A worker or an applicant for employment
may apply to the Industrial Division of the
Magistrates' Court for an order under this
section in relation to an employer or a
5 prospective employer who has engaged in
discriminatory conduct for a prohibited
reason.
(6) An application referred to in subsection (5)
must be made not more than one year after
10 the date on which the discriminatory conduct
occurred.
(7) In a proceeding under this section, if all the
facts constituting the discriminatory conduct
are proved, the employer or prospective
15 employer bears the burden of adducing
evidence that the reason alleged in the
proceeding was not a substantial reason for
the conduct.
(8) It is a defence to a proceeding under this
20 section if the employer or prospective
employer proves that--
(a) the relevant conduct was necessary to
comply with the requirements of this
Act or the Occupational Health and
25 Safety Act 2004; or
(b) the worker or applicant for employment
was unable to perform the inherent
requirements of the employment even if
the employer or prospective employer
30 made reasonable adjustments to those
requirements; or
(c) the worker was engaged in fraud or
dishonesty in relation to, or associated
with, the giving of notice of the injury
35 or pursuit of the claim for
compensation.
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Part 3--Ensuring Timely Access to Benefits
s. 23
(9) The Industrial Division of the Magistrates'
Court may make one or more of the
following orders in relation to an employer
or prospective employer who has engaged in
5 discriminatory conduct for a prohibited
reason--
(a) an order that the employer or
prospective employer pay (within a
specified period) to the worker or
10 applicant for employment such
damages as the court considers
appropriate to compensate the worker
or applicant for hurt and humiliation as
a result of the discriminatory conduct;
15 (b) an order that the employer or
prospective employer pay the worker or
applicant an amount not exceeding the
remuneration that--
(i) in the case of a worker, the worker
20 was entitled to receive from that
employer during the 12 months
immediately after the
discriminatory conduct was
engaged in or, if the worker was
25 so employed for less than
12 months, the amount the worker
would have been entitled to
receive if the worker had been so
employed for that period of
30 12 months;
(ii) in the case of an applicant for
employment, the applicant would
have received if the applicant had
been employed by that prospective
35 employer for a period not
exceeding 12 months from the day
561256B.I-9/12/2009 42 BILL LA INTRODUCTION 9/12/2009
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Part 3--Ensuring Timely Access to Benefits
s. 23
on which the applicant made the
application for employment;
(c) an order that--
(i) the worker be reinstated or
5 re-employed in the worker's
former position or, if that position
is not available, in a similar
position; or
(ii) the worker or applicant for
10 employment be employed in the
position for which the worker or
applicant had applied or a similar
position.
(10) In making any order under this section, the
15 court must take into account any
compensation or damages received by the
worker in respect of any injury to which the
discriminatory conduct relates.
(11) Each party to a proceeding under this section
20 is to bear its own costs in the proceeding
unless the court determines that it is fair that
a party pay all or a specified part of the costs
of another party.
242AE Effect of orders on other orders under
25 section 242AA, 242AB or 242AD
(1) The making of an order in a proceeding
under section 242AD does not prevent the
bringing of a proceeding for an offence
against section 242AA in respect of the same
30 conduct.
(2) If a court makes an order in a proceeding
under section 242AB, a court cannot make
an order under section 242AD in respect of
the same conduct.
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Part 3--Ensuring Timely Access to Benefits
s. 24
(3) If a court makes an order in a proceeding
under section 242AD, a court cannot make
an order under section 242AB in a
proceeding for an offence against section
5 242AA in respect of the same conduct.
242AF Claims under section 242AB or 242AD
An application for an order under section
242AB or a proceedings under 242AD is not
a proceeding in respect of an injury within
10 the meaning of section 134AB(1).".
24 Proceedings under section 242AA to be instituted
within 3 years
In section 252(4)(a) of the Accident
Compensation Act 1985, after "242(10)," insert
15 "242AA(1),".
25 Amendment of section 138B
In section 138B(1) of the Accident
Compensation Act 1985, for "if the
compensation would be for a matter--" substitute
20 "if the compensation would be for a matter arising
from discriminatory conduct that constitutes an
offence against section 242AA or for a matter--".
26 New section 252J inserted
After section 252I of the Accident Compensation
25 Act 1985 insert--
"252J Supreme Court--limitation of jurisdiction
It is the intention of section 242AC (7) as
inserted by section 23 of the Accident
Compensation Amendment Act 2009 to
30 alter or vary section 85 of the Constitution
Act 1975.".
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Part 3--Ensuring Timely Access to Benefits
s. 27
27 New section 252K inserted
After section 252J of the Accident
Compensation Act 1985 insert--
"252K Supreme Court--limitation of jurisdiction
5 It is the intention of section 138B, as
amended by section 25 of the Accident
Compensation Amendment Act 2009, to
alter or vary section 85 of the Constitution
Act 1975.".
__________________
561256B.I-9/12/2009 45 BILL LA INTRODUCTION 9/12/2009
Accident Compensation Amendment Bill 2009
Part 4--Better Income Replacement
s. 28
PART 4--BETTER INCOME REPLACEMENT
28 Definitions
(1) In section 5(1) of the Accident Compensation
Act 1985 insert the following definitions--
5 "first entitlement period has the meaning given by
section 91E;
industrial award means--
(a) a fair work instrument (other than an
FWA order) within the meaning of the
10 Fair Work Act 2009 of the
Commonwealth; or
(b) a transitional instrument within the
meaning of the Fair Work (Transitional
Provisions and Consequential
15 Amendments) Act 2009 of the
Commonwealth;
second entitlement period has the meaning given
by section 91E;
State average weekly earnings, in relation to
20 compensation payable in a financial year,
means the latest average weekly earnings as
at 30 May in the preceding financial year of
all employees for Victoria published by the
Australian Statistician in respect of the
25 December quarter of that preceding financial
year or, if that is not available, the latest
available quarter;".
(2) In section 5(1) of the Accident Compensation
Act 1985, in paragraph (b) of the definition of
30 employer superannuation contribution for
subparagraph (i) substitute--
"(i) any industrial award;".
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Part 4--Better Income Replacement
s. 29
(3) In section 5(1) of the Accident Compensation
Act 1985, in the definition of medical question,
for paragraph (abc) substitute--
"(abc) a question as to whether a worker has a
5 current work capacity and, because of the
injury, is, and is likely to continue
indefinitely to be incapable of undertaking--
(i) further or additional employment or
work; or
10 (ii) further or additional employment or
work that would increase the worker's
current weekly earnings--
and, if not so incapable, what further or
additional employment or work the worker is
15 capable of undertaking; or".
(4) In section 5(1) of the Accident Compensation
Act 1985, the definition of notional earnings is
repealed.
29 New section 55AA inserted
20 After section 55 of the Accident Compensation
Act 1985 insert--
"55AA Referral of medical question without
consent
(1) Where a medical question arises in a dispute
25 relating to section 93CD, the Conciliation
Officer must, within 7 days after becoming
aware of the medical question, refer the
medical question to a Medical Panel.
(2) The Authority or self-insurer must bear all
30 the costs reasonably incurred by a worker in
relation to a referral of a medical question
under this section.".
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30 New section 91E inserted
In Division 2 of Part IV of the Accident
Compensation Act 1985, before section 92,
insert--
5 "91E Definitions applicable to this Division
In this Division--
first entitlement period, in relation to a claim
for compensation in the form of weekly
payments made by a worker--
10 (a) if the claim is made by a
pre-12 November 1997 claimant
and relates to an injury arising
before that date, means an
aggregate period of incapacity for
15 work not exceeding 26 weeks
(whether or not consecutive) after
the worker became entitled to
compensation in the form of
weekly payments in respect of the
20 incapacity;
(b) if the claim is made on or after
12 November 1997, means an
aggregate period not exceeding
13 weeks (whether or not
25 consecutive) in respect of which a
weekly payment has been paid or
is payable to the worker;
pre-12 November 1997 claimant, in relation
to a claim for compensation in the form
30 of weekly payments given, served or
lodged before 12 November 1997 in
respect of an injury arising before that
date, means a worker who--
(a) as at that date, was entitled to
35 compensation in the form of
weekly payments in accordance
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with section 93A or 93B (as in
force before the commencement
of section 31 of the Accident
Compensation Amendment Act
5 2009); or
(b) on or after that date, was
determined under this Act to have
been so entitled as at
12 November 1997; or
10 (c) but for the operation of section 96
(as in force before the
commencement of section 31 of
the Accident Compensation
Amendment Act 2009) would
15 have been so entitled as at
12 November 1997;
second entitlement period, in relation to a
claim for compensation in the form of
weekly payments made by a worker--
20 (a) if the claim is made by a
pre-12 November 1997 claimant
and relates to an injury arising
before that date, means an
aggregate period of 78 weeks
25 (whether or not consecutive) after
the first entitlement period in
respect of which a weekly
payment has been paid or is
payable to the worker;
30 (b) if the claim is made on or after
12 November 1997 and received
by the Authority of self-insurer
before 1 January 2005, means an
aggregate period of 91 weeks
35 (whether or not consecutive) after
the expiry of the first entitlement
period in respect of which a
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Part 4--Better Income Replacement
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weekly payment has been paid or
is payable to the worker;
(c) if the claim is received by the
Authority or self-insurer on or
5 after 1 January 2005, means an
aggregate period of 117 weeks
(whether or not consecutive) after
the expiry of the first entitlement
period in respect of which a
10 weekly payment has been paid or
is payable to the worker;
serious injury, in relation to a claim for
compensation in the form of weekly
payments made before 12 November
15 1997, means an injury to a worker in
respect of which the worker's degree of
impairment, if assessed by the
Authority or self-insurer in accordance
with section 91, would be 30 per cent
20 or more.".
31 New sections 93A to 93CA substituted
In the Accident Compensation Act 1985, for
sections 93A, 93B, 93C, 93CA, 93CB and 93CC
substitute--
25 "93A Weekly payments in first entitlement
period
(1) In relation to a claim for compensation in the
form of weekly payments made by a
pre-12 November 1997 claimant, the worker
30 is entitled, subject to and in accordance with
this Part and Part VIIB, while incapacitated
for work during the first entitlement period,
to weekly payments--
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(a) if the worker has no current work
capacity, at the rate of--
(i) 95 per cent of the worker's pre-
injury average weekly earnings; or
5 (ii) $1040--
whichever is the lesser;
(b) if the worker has a current work
capacity, at the rate of--
(i) the difference between 95 per cent
10 of the worker's pre-injury average
weekly earnings and the worker's
current weekly earnings; or
(ii) the difference between $1040 and
the worker's current weekly
15 earnings--
whichever is the lesser.
(2) In relation to a claim by a worker for
compensation in the form of weekly
payments first made in respect of the injury
20 to which the claim relates on or after
12 November 1997 and before 5 April 2010,
the worker is entitled, subject to and in
accordance with this Part and Part VIIB,
while incapacitated for work during the first
25 entitlement period, to weekly payments--
(a) if the worker has no current work
capacity, at the rate of--
(i) 95 per cent of the worker's pre-
injury average weekly earnings; or
30 (ii) $1300--
whichever is the lesser;
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(b) if the worker has a current work
capacity, at the rate of--
(i) the difference between 95 per cent
of the worker's pre-injury average
5 weekly earnings and the worker's
current weekly earnings; or
(ii) the difference between $1300 and
the worker's current weekly
earnings--
10 whichever is the lesser.
(3) In relation to a claim by a worker for
compensation in the form of weekly
payments first made in respect of the injury
to which the claim relates on or after 5 April
15 2010, the worker is entitled, subject to and in
accordance with this Part and Part VIIB,
while incapacitated for work during the first
entitlement period, to weekly payments--
(a) if the worker has no current work
20 capacity, at the rate of--
(i) 95 per cent of the worker's pre-
injury average weekly earnings; or
(ii) twice the State average weekly
earnings--
25 whichever is the lesser;
(b) if the worker has a current work
capacity, at the rate of--
(i) the difference between 95 per cent
of the worker's pre-injury average
30 weekly earnings and the worker's
current weekly earnings; or
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(ii) the difference between twice the
State average weekly earnings and
the worker's current weekly
earnings--
5 whichever is the lesser.
93B Weekly payments in second entitlement
period
(1) In relation to a claim made by a
pre-12 November 1997 claimant for
10 compensation in the form of weekly
payments, the worker is entitled, subject to
and in accordance with this Part and Part
VIIB, while incapacitated for work during
the second entitlement period, to weekly
15 payments--
(a) if the worker has a serious injury, at the
rate of--
(i) the difference between 90 per cent
of the worker's pre-injury average
20 weekly earnings and 90 per cent
of the worker's current weekly
earnings; or
(ii) the difference between $1040 and
90 per cent of the worker's current
25 weekly earnings--
whichever is the lesser;
(b) if the worker does not have a serious
injury but has no current work capacity,
at the rate of--
30 (i) 80 per cent of the worker's pre-
injury average weekly earnings; or
(ii) $1040--
whichever is the lesser;
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(c) if the worker does not have a serious
injury but has a current work capacity,
at the rate of--
(i) the difference between 80 per cent
5 of the worker's pre-injury average
weekly earnings and 80 per cent
of the worker's current weekly
earnings; or
(ii) the difference between $1040 and
10 80 per cent of the worker's current
weekly earnings-
whichever is the lesser.
(2) In relation to a claim by a worker for
compensation in the form of weekly
15 payments first made in respect of the injury
to which the claim relates on or after
12 November 1997 and before 5 April 2010,
the worker is entitled, subject to and in
accordance with this Part and Part VIIB,
20 while incapacitated for work during the
second entitlement period, to weekly
payments--
(a) if the worker has no current work
capacity, at the rate of--
25 (i) 80 per cent of the worker's pre-
injury average weekly earnings; or
(ii) $1300--
whichever is the lesser;
(b) if the worker has a current work
30 capacity, at the rate of--
(i) the difference between 80 per cent
of the worker's pre-injury average
weekly earnings and 80 per cent
of the worker's current weekly
35 earnings, or
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(ii) the difference between $1300 and
80 per cent of the worker's current
weekly earnings--
whichever is the lesser.
5 (3) In relation to a claim by a worker for
compensation in the form of weekly
payments first made in respect of the injury
to which the claim relates on or after 5 April
2010, the worker is entitled, subject to and in
10 accordance with this Part and Part VIIB,
while incapacitated for work during the
second entitlement period, to weekly
payments--
(a) if the worker has no current work
15 capacity, at the rate of--
(i) 80 per cent of the worker's pre-
injury average weekly earnings; or
(ii) twice the State average weekly
earnings--
20 whichever is the lesser;
(b) if the worker has a current work
capacity, at the rate of--
(i) the difference between 80 per cent
of the worker's pre-injury average
25 weekly earnings and 80 per cent
of the worker's current weekly
earnings, or
(ii) the difference between twice the
State average weekly earnings and
30 80 per cent of the worker's current
weekly earnings--
whichever is the lesser.
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93C Weekly payments after the second
entitlement period
(1) Subject to section 93CD, a worker's
entitlement to compensation in the form of
5 weekly payments under this Part ceases upon
the expiry of the second entitlement period
unless the worker--
(a) is assessed by the Authority or self-
insurer as having no current work
10 capacity and likely to continue
indefinitely to have no current work
capacity; or
(b) is a pre-12 November 1997 claimant
who has a serious injury.
15 (2) A worker to whom subsection (1)(a) or (b)
applies is entitled, subject to and in
accordance with this Part and Part VIIB, to
compensation in the form of weekly
payments--
20 (a) if the worker is a pre-12 November
1997 claimant who has a serious injury,
at the rate of--
(i) the difference between 90 per cent
of the worker's pre-injury average
25 weekly earnings and 90 per cent
of the worker's current weekly
earnings; or
(ii) the difference between $1040 and
90 per cent of the worker's current
30 weekly earnings--
whichever is the lesser;
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(b) if the worker is a pre-12 November
1997 claimant who does not have a
serious injury, at the rate of--
(i) 80 per cent of the worker's pre-
5 injury average weekly earnings; or
(ii) $1040--
whichever is the lesser; and
(c) in the case of a claim for compensation
in the form of weekly payments first
10 made in respect of the injury to which
the claim relates on or after
12 November 1997 and before 5 April
2010 at the rate of--
(i) 80 per cent of the worker's pre-
15 injury average weekly earnings; or
(ii) $1300--
whichever is the lesser;
(d) in the case of a claim for compensation
in the form of weekly payments first
20 made in respect of the injury to which
the claim relates on or after 5 April
2010, at the rate of--
(i) 80 per cent of the worker's pre-
injury average weekly earnings; or
25 (ii) twice the State average weekly
earnings--
whichever is the lesser.
(3) A review of the assessment of a worker to
whom subsection (1)(a) or (b) applies may
30 be conducted by the Authority or self-insurer
at any time and must be conducted as often
as may reasonably be necessary and in any
event at least once every 2 years.
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93CA Compensation for incapacity arising from
surgery after second entitlement period
(1) Subject to subsection (2), this section applies
to a worker who, on or after 5 April 2010--
5 (a) suffers an injury arising out of or in the
course of employment; and
(b) makes a claim for compensation in
respect of that injury under section 103
and received weekly payments in
10 respect of that injury; and
(c) has returned to work for a period of not
less than 15 hours per week and is in
receipt of current weekly earnings of at
least $151 per week; and
15 (d) either, in respect of the injury--
(i) is not entitled to compensation in
the form of weekly payments
because of section 93C; or
(ii) is entitled under section 93CD to
20 compensation in the form of
weekly payments; and
(e) for at least 13 consecutive weeks
immediately after the expiry of the
second entitlement period, has not
25 received compensation in the form of
weekly payments other than weekly
payments under section 93CD; and
(f) for that injury requires surgery (the
subsequent surgery) for which the
30 Authority or self-insurer has accepted
liability under section 99(1); and
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(g) suffers incapacity resulting from or
materially contributed to by the
subsequent surgery; and
(h) has not attained retirement age.
5 (2) This section does not apply to a worker
whose entitlement to compensation in the
form of weekly payments has been ceased or
terminated in accordance with this Act.
(3) A worker to whom this section applies may
10 apply, in a form approved by the Authority,
to the Authority or self-insurer for
compensation in the form of weekly
payments in respect of an incapacity
resulting from or materially contributed to by
15 the subsequent surgery.
(4) Unless the worker to whom this section
applies is receiving weekly payments under
section 93CD--
(a) the worker is not entitled to
20 compensation in the form of weekly
payments under this section in respect
of the first 13 consecutive weeks after
the expiry of the second entitlement
period; and
25 (b) an application under subsection (3)
must not be made during the period of
13 consecutive weeks immediately after
the expiry of the second entitlement
period.
30 (5) Compensation in the form of weekly
payments under this section is payable at the
rate that would have been applicable under
section 93B if the second entitlement period
had not expired--
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(a) in respect of the period of incapacity
resulting from or materially contributed
to by the subsequent surgery; or
(b) if the worker has an incapacity resulting
5 from, or materially contributed to, by
the subsequent surgery for the period of
13 consecutive weeks commencing on
the day on which the subsequent
surgery is performed--
10 whichever is the shorter.
(6) Within 14 days after receiving an application
in accordance with this section, the Authority
or self-insurer must--
(a) approve or reject the application; and
15 (b) give the worker written notice of its
decision including, in the case of
rejection, a statement of the reasons for
the decision.".
32 Amendments consequential on new sections 93A
20 to 93CA
In the Accident Compensation Act 1985--
(a) in section 5(1) for the definition of weekly
payment substitute--
"weekly payment means compensation in the
25 form of a weekly payment under
Division 2 of Part IV;";
(b) in section 93EA(2), for "section 93CB(2)(a)
or 93CB(2)(b)" substitute "93B(2)(a) or (b)
or 93B(3)(a) or (b)";
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(c) in section 93EA(4), for paragraph (c)
substitute--
"(c) the worker has not ceased to become
entitled to weekly payments due to the
5 application of this Part or Part VIIB or
section 119J(1) or (3), 134AB(36) or
135A(18)";
(d) in section 99(14)(a)(iii), for "section 93B(5)"
substitute "section 91E".
10 33 Further consequential amendments
(1) Insert the following heading to section 114A of
the Accident Compensation Act 1985--
"Reduction of weekly payments after the first
entitlement period".
15 (2) In the Accident Compensation Act 1985--
(a) in section 114A--
(i) in subsection (1)(a), for "section 93CB"
substitute "section 93B";
(ii) omit "within the meaning of section
20 93CA(1)", where 5 times occurring;
(iii) in subsection (3), for "section 93CB(2)"
substitute "section 93B";
(iv) in subsection (3), for "93CB(2)(a)"
substitute "93B(2)(a) or (3)(a)";
25 (v) in subsection (6), for "section 93CB(2)"
substitute "section 93B";
(b) in section 116(1)(c), for "section 93B(5)"
substitute "section 91E";
(c) in section 117(b)(i), for "section 93B(5)"
30 substitute "section 91E".
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34 New section 93CD substituted
For section 93CD of the Accident Compensation
Act 1985 substitute--
"93CD Continuation of weekly payments after
5 second entitlement period
(1) A worker who has a current work capacity
and is, or has been, entitled to compensation
in the form of weekly payments under this
Division, may make an application at any
10 time, in accordance with this section, to the
Authority or self-insurer, in a form approved
by the Authority, for a determination that the
worker's entitlement to weekly payments
does not, or will not, cease by reason only of
15 the expiry of the second entitlement period.
(2) An application must be made--
(a) if liability to pay the weekly payments
lies with the employer (not being a self-
insurer or a subsidiary of a self-insurer)
20 or the Authority--to the Authority;
(b) if liability to pay the weekly payments
lies with a self-insurer--to the self-
insurer.
(3) If the Authority or self-insurer receives an
25 application under subsection (1), the
Authority or self-insurer must, within
28 days after receiving the application--
(a) approve or reject the application; and
(b) advise the worker in writing of its
30 determination; and
(c) if the Authority or self-insurer rejects
the application, give the worker a
statement of the reasons for its
determination.
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(4) The Authority or self-insurer must not
approve an application under subsection (1)
unless it is satisfied that--
(a) the worker has returned to work
5 (whether in self-employment or other
employment) for a period of not less
than 15 hours per week and is in receipt
of current weekly earnings of at least
$151 per week; and
10 (b) because of the injury, the worker is, and
is likely to continue indefinitely to be,
incapable of undertaking further
additional employment or work which
would increase the worker's current
15 weekly earnings.
(5) If the Authority or self-insurer approves an
application made under subsection (1), the
worker's entitlement to compensation in the
form of weekly payments commences on the
20 date the Authority or self-insurer received
the application and, subject to and in
accordance with this Part and Part VIIB, the
worker is entitled to weekly payments at the
rate of--
25 (a) in the case of a pre-12 November 1997
claimant--
(i) the difference between 80 per cent
of the worker's pre-injury average
weekly earnings and 80 per cent
30 of the worker's current weekly
earnings; or
(ii) the difference between $1040 and
80 per cent of the worker's current
weekly earnings--
35 whichever is the lesser;
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(b) in the case of a worker whose claim
was first given, served or lodged on or
after 12 November 1997 and before
5 April 2010--
5 (i) the difference between 80 per cent
of the worker's pre-injury average
weekly earnings and 80 per cent
of the worker's current weekly
earnings; or
10 (ii) the difference between $1300 and
80 per cent of the worker's current
weekly earnings--
whichever is the lesser;
(c) in the case of a claim first given, served
15 or lodged on or after 5 April 2010--
(i) the difference between 80 per cent
of the worker's pre-injury average
weekly earnings and 80 per cent
of the worker's current weekly
20 earnings; or
(ii) the difference between twice the
State average weekly earnings and
80 per cent of the worker's current
weekly earnings--
25 whichever is the lesser.
(6) A worker continues to be entitled to
compensation in the form of weekly
payments under subsection (5) until--
(a) subject to section 93CDA, the
30 Authority or self-insurer ceases to be
satisfied as to the matters referred to in
subsection (4); or
(b) the worker otherwise ceases to be
entitled to compensation in the form of
35 weekly payments.".
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35 New section 93CDA inserted
After section 93CD of the Accident
Compensation Act 1985, insert--
"93CDA Entitlement under section 93CD not
5 affected by certain circumstances
(1) A worker who receives weekly payments
under section 93CD does not cease to be
entitled to weekly payments under that
section by reason only that the worker
10 occasionally, but not during more than
4 weeks in the first period of 12 consecutive
weeks immediately after the worker first
received weekly payments under that
section, or in any subsequent consecutive
15 period of 12 weeks--
(a) has worked more hours during a week;
or
(b) has worked fewer hours during a week
(even if the number of hours worked is
20 less than 15); or
(c) has received higher current weekly
earnings; or
(d) has received lower current weekly
earnings (even if the earnings are less
25 than $151 per week)--
than the hours worked, or the current weekly
earnings received, at the time of making the
application for payments under
section 93CD.
30 (2) A reference in subsection (1) to hours of
work does not include hours of leave
approved by the employer.".
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36 Repeal of section 93DA
Section 93DA of the Accident Compensation
Act 1985 is repealed.
37 New section 93CE inserted
5 Before section 93E of the Accident
Compensation Act 1985 insert--
"93CE Compensation in the form of
superannuation contributions
(1) If--
10 (a) there is caused to a worker an injury
arising out of, or in the course of
employment; and
(b) compensation in the form of weekly
payments--
15 (i) has been paid or is payable to the
worker in respect of that injury for
an aggregate period of 52 weeks
(whether or not consecutive); and
(ii) has not ceased to be paid or
20 payable in respect of that injury;
and
(c) the worker has not attained the age of
65 years--
the Authority or self-insurer must, subject to
25 the worker nominating a complying fund to
the Authority or self-insurer and providing
details of his or her tax file number to the
trustee of the nominated complying fund
within 3 months of receipt of a notice under
30 subsection (4), pay, in accordance with this
section, for the benefit of the worker,
compensation in the form of superannuation
contributions to the nominated complying
fund.
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(2) Subsection (1) does not apply in respect of a
worker in relation to any period in respect of
which--
(a) the worker's employer makes
5 contributions for the benefit of the
worker to any scheme or fund for the
payment of superannuation, retirement
benefits or death benefits (other than
under a salary sacrifice agreement or
10 arrangement); and
(b) those contributions--
(i) exceed the contributions (if any)
necessary for the employer to
avoid an individual
15 superannuation guarantee shortfall
under the Superannuation Act in
respect of a worker; and
(ii) are made for the purpose of
discharging an obligation of the
20 employer to the worker that arises
because of the worker's injury
under any public sector
superannuation scheme,
agreement or arrangement or any
25 law of the Commonwealth or a
State or Territory relating to
superannuation or an industrial
award.
(3) The amount that the Authority or self-insurer
30 is liable to pay, subject to and in accordance
with this section, as compensation in the
form of superannuation contributions for the
benefit of a worker is the amount equal to the
charge percentage of the compensation in the
35 form of weekly payments payable to the
worker under this Part after the expiry of the
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period referred to in subsection (1)(b)(i)
other than--
(a) compensation under section 93CA,
unless the worker is receiving
5 compensation under section 93CD; and
(b) compensation under section 93EA.
(4) The Authority or self-insurer must, within
28 days after becoming aware that it is liable
to pay to a worker compensation in the form
10 of superannuation contributions subject to
and in accordance with this section, notify
the worker in writing--
(a) that the Authority or self-insurer is so
liable and of the date on which it
15 became so liable; and
(b) of the amount of its liability, expressed
as the charge percentage of the weekly
amount that the worker receives as
compensation in the form of weekly
20 payments in respect of the injury; and
(c) that the Authority or self-insurer is
required to pay the contributions to a
complying fund nominated by the
worker; and
25 (d) that the worker is required to nominate
a complying fund to the Authority or
self-insurer; and
(e) that contributions cannot be paid to the
nominated complying fund unless the
30 worker, or the worker's employer on
behalf of the worker, has provided
details of the worker's tax file number
to the trustee of the nominated
complying fund; and
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(f) that the worker is entitled to nominate a
different complying fund, but not more
than once in any period of 12 months;
and
5 (g) that, if the worker does not nominate a
complying fund, or does not provide
sufficient details to enable contributions
to be paid to a complying fund, within
3 months after the date on which the
10 notice under this subsection is given to
the worker, the Authority or self-insurer
is not liable to pay compensation in the
form of superannuation contributions in
respect of any period before it receives
15 those details.
(5) Payment under this section must be made to
the worker's nominated complying fund--
(a) in the case of the Authority, within--
(i) 30 days after it is informed by the
20 worker's employer that
compensation in the form of
weekly payments has been paid;
or
(ii) 120 days after compensation in
25 the form of weekly payments has
been paid--
whichever first occurs;
(b) in the case of a self-insurer, at least
quarterly.
30 (6) Despite anything to the contrary in section
125A(2), the Authority is liable to pay
compensation in the form of superannuation
contributions in accordance with this section.
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(7) Where the liability of the Authority under
this section is discharged, the discharge is to
be treated as if a liability of the employer is
discharged.
5 (8) In this section--
charge percentage means the percentage
applicable for the time being under
section 19(2) of the Superannuation
Act;
10 complying fund means a complying
superannuation fund or scheme within
the meaning of section 7 of the
Superannuation Act but does not
include--
15 (a) a defined benefit superannuation
scheme within the meaning of
section 6A(1) of that Act; or
(b) a scheme that is a defined benefit
superannuation scheme because of
20 section 6A(2) of that Act;
Superannuation Act means the
Superannuation Guarantee
(Administration) Act 1992 of the
Commonwealth.".
25 38 Consequential amendment of section 59
In section 59(1) of the Accident Compensation
Act 1985, after "weekly payments" (where
secondly occurring) insert "but does not include a
dispute as to compensation in the form of
30 superannuation contributions".
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39 State average weekly earnings
(1) In sections 92B(3), 92B(4), 92B(5), 92B(6),
92B(7) and 92B(11) of the Accident
Compensation Act 1985 for "$1130" (wherever
5 occurring) substitute "twice the State average
weekly earnings".
(2) In sections 92B(3)(b)(iii) and 92B(4)(b)(iii) of the
Accident Compensation Act 1985 for "$754"
substitute "two thirds of twice the State average
10 weekly earnings".
(3) In section 92B(8)(b) of the Accident
Compensation Act 1985 for "$374" substitute
"one third of twice the State average weekly
earnings".
15 40 Amendment of section 96
(1) Insert the following heading to section 96 of the
Accident Compensation Act 1985--
"Effect of disability or other pensions and
lump sums on weekly payments".
20 (2) In section 96 of the Accident Compensation Act
1985--
(a) in subsection (1)(a) omit "disability,";
(b) in subsection (1), paragraph (b) is repealed;
(c) in subsection (2), paragraph (a) is repealed.
25 (3) After section 96(5) of the Accident
Compensation Act 1985, insert--
"(6) The amount of compensation in the form of
weekly payments payable to a worker under
this Part must be reduced by the amount
30 (if any) by which the sum of--
(a) the weekly payment that would be
payable but for this subsection; and
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(b) the weekly rate of any disability
pension received by or for the benefit
of the worker and which relates to an
injury in respect of which
5 compensation in the form of weekly
payments is payable to the worker; and
(c) the worker's current weekly earnings--
exceeds the supplemental pension limit.
(7) In this section--
10 disability pension, in relation to a worker,
means an amount payable under an
insurance policy or by a trustee acting
in the capacity of a trustee that--
(a) relates to an injury in respect of
15 which compensation in the form
of weekly payments is payable
under this Part; and
(b) is payable in the form of periodic
payments to or for the benefit of
20 the worker--
but does not include a retirement or
superannuation pension;
supplemental pension limit, in relation to a
worker, means the worker's pre-injury
25 average weekly earnings as calculated
under section 5A as indexed in
accordance with section 100(2) but
disregarding section 100(3) and
calculated as if the period of 52 weeks
30 referred to in section 5A(1A) (where
secondly occurring) or (1B) had not
expired.".
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41 Amendment of section 96A
In section 96A of the Accident Compensation
Act 1985--
(a) in subsections (1), (2), (4) and (5), for
5 "or payment specified" substitute
"specified";
(b) in subsections (1), (2) and (3) for "pension,
payment" (wherever occurring) substitute
"pension";
10 (c) in subsection (7), for "10 penalty units"
substitute "40 penalty units".
42 Amendment of section 97
After section 97(1) of the Accident
Compensation Act 1985, for paragraph (c)
15 substitute--
"(c) by way of accident make-up pay under any
industrial award; or
(d) in lieu of accrued annual leave or long
service leave.".
20 43 New section 109AA inserted
After section 109 of the Accident Compensation
Act 1985, insert--
"109AA Employer may request reasons for
decision on a claim
25 (1) Where the Authority has given notice to a
worker or claimant of its decision to accept,
or to reject--
(a) a claim for compensation in the form of
weekly payments or for compensation
30 under section 98, 98A or 98C; or
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(b) a claim for compensation in respect of
the death of a worker--
the employer may, in writing, request the
Authority to provide a written statement of
5 the reasons for its decision.
(2) The Authority must, within 28 days after
receiving a request under subsection (1),
comply with the request.
(3) In this section--
10 employer means--
(a) in relation to a claim for
compensation in the form of
weekly payments or a claim under
section 98, 98A or 98C, the
15 worker's employer;
(b) in relation to a claim for
compensation in respect of the
death of a worker, the employer of
the deceased worker;
20 proceedings includes--
(a) the inquiry into, hearing and
determination of any question or
matter under this Act;
(b) seeking the grant of any relief or
25 remedy in the nature of certiorari,
prohibition, mandamus or quo
warranto, or the grant of a
declaration of right or an
injunction;
30 (c) seeking any order under the
Administrative Law Act 1978;
(d) any other action or proceeding.
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(4) No proceedings may be brought against the
Authority in respect of any question or other
matter arising under this section.".
44 New section 252L inserted
5 After section 252K of the Accident
Compensation Act 1985 insert--
"252L Supreme Court--limitation of jurisdiction
It is the intention of section 109AA as
inserted by section 43 of the Accident
10 Compensation Amendment Act 2009 to
alter or vary section 85 of the Constitution
Act 1975.".
45 Amendment of section 114
(1) In section 114(2)(c) of the Accident
15 Compensation Act 1985, for subparagraph (ii)
substitute--
"(ii) in the case of a worker who has current
weekly earnings, the amount of the worker's
current weekly earnings alters; or".
20 (2) After section 114(2) of the Accident
Compensation Act 1985, insert--
"(2A) If the current weekly earnings of a worker
who--
(a) has an incapacity for work resulting
25 from, or materially contributed to by,
an injury; and
(b) is receiving, or but for the worker's
current weekly earnings, would have
been entitled to receive, compensation
30 in the form of weekly payments--
are reduced because--
(c) the worker no longer resides in
Victoria; or
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(d) the worker's employment was
terminated because of the worker's
misconduct; or
(e) the worker--
5 (i) has resigned; or
(ii) reduced the hours worked
otherwise than in the
circumstances referred in section
93CDA--
10 for reasons unrelated to the worker's
incapacity--
the Authority or a self-insurer may
determine--
(f) not to alter the amount of compensation
15 in the form of weekly payments paid to
the worker; or
(g) not to pay compensation in the form of
weekly payments.
(2B) If the Authority or a self-insurer makes a
20 determination under subsection (2A)--
(a) the Authority or self-insurer must give
written notice to the worker of the
determination and the reasons for it;
and
25 (b) the worker's entitlement to
compensation in the form of weekly
payments is adjusted in accordance
with the determination.
(2C) A determination under subsection (2A) takes
30 effect from the day on which the current
weekly earnings were reduced or, if the
Authority or self-insurer specifies a later date
in the determination, on that later date.".
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(3) Before section 114(3) of the Accident
Compensation Act 1985 insert--
"(2D) If the current weekly earnings of a worker
are reduced because the worker is on paid
5 annual leave or long service leave, the
Authority or self-insurer must not, by reason
only of that reduction, alter the amount of
compensation in the form of weekly
payments.".
10 (4) After section 114(9) of the Accident
Compensation Act 1985 insert--
"(9A) A termination of weekly payments under
section 93CA has effect--
(a) without the giving of notice; and
15 (b) as from--
(i) the day on which the worker
ceases to suffer incapacity
resulting from, or materially
contributed to by, the subsequent
20 surgery, or a recurrence of that
incapacity, whichever is the later;
or
(ii) the expiry of the period of
13 weeks commencing on the day
25 on which the relevant surgery is
performed--
whichever first occurs.".
(5) In section 114(13) of the Accident
Compensation Act 1985--
30 (a) in paragraph (c), for "13 weeks." substitute
"13 weeks; or";
(b) after paragraph (c) insert--
"(d) if the worker has been receiving
compensation in the form of weekly
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payments under section 93CD and
ceases to be entitled to receive such
compensation-- 28 days; or
(e) if the worker has been receiving
5 compensation in the form of weekly
payments under section 93CD and the
termination is because the employer has
withdrawn the employment--13 weeks
commencing on the day on which the
10 employer informs the worker of the
withdrawal of employment.".
46 New section 114AA inserted
After section 114 of the Accident Compensation
Act 1985 insert--
15 "114AA Termination of compensation in the form
of superannuation contributions
(1) Subject to this section, the Authority or a
self-insurer may terminate the payment of
compensation in the form of superannuation
20 contributions in respect of a worker on the
ground that the worker--
(a) is not, or has ceased to be, entitled to
such compensation; or
(b) is not, or has ceased to be, entitled to
25 compensation in the form of weekly
payments.
(2) The Authority or self-insurer must not
terminate payments in the form of
superannuation contributions (otherwise than
30 because the worker is not, or has ceased to
be, entitled to compensation in the form of
weekly payments) unless the Authority or
self-insurer gives a notice in writing in
accordance with subsection (3) to the
35 worker--
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(a) stating the reasons for the termination;
and
(b) stating when the payments will cease.
(3) A notice in writing under subsection (2) must
5 be given--
(a) if compensation in the form of
superannuation contributions has been
paid in respect of worker for a
continuous period of at least 12 weeks
10 and not more than 1 year--at least
14 days before the termination;
(b) if compensation in the form of
superannuation contributions has been
paid in respect of the worker for a
15 continuous period of 1 year or more--
at least 28 days before the
termination.".
47 New sections 114EA and 114EB inserted
After section 114E of the Accident
20 Compensation Act 1985 insert--
"114EA Outstanding superannuation
contributions
(1) Subject to subsection (2), outstanding
payments of compensation in the form of
25 superannuation contributions under section
93CE, and interest at the prescribed rate on
each outstanding payment from the last date
on which such a payment should have been
paid until the date on which the payment is
30 paid, are payable to the superannuation fund
nominated by the worker under section 93CE
for the benefit of the worker if a decision to
terminate superannuation contributions under
section 114AA is set aside by the court.
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(2) If a worker has not made an application to
the court within one year after being notified
by a Conciliation Officer that the
Conciliation Officer is satisfied that there is a
5 dispute with respect to liability to make or
continue to make payments of compensation
in the form of superannuation contributions
under section 93CE and that an application
may be made to the court to determine the
10 matter, interest is not payable under
subsection (1) in respect of the period
beginning after the expiry of one year after
that date and ending on the day on which the
application is made.
15 (3) If, under section 114E, outstanding payments
of compensation in the form of weekly
payments are payable in the circumstances
referred to in section 114E(1)(b), (c) or (d),
then, subject to section 93CE, compensation
20 in the form of superannuation contributions
under that section in respect of those
outstanding payments and interest at the
prescribed rate on each such payment are
also payable.
25 114EB Alteration or termination of
superannuation contributions
The Authority or a self-insurer is not
required to give written notice to the worker
of--
30 (a) an alteration of compensation in the
form of superannuation contributions
where the alteration is because of an
alteration in the compensation in the
form of weekly payments paid or
35 payable to the worker; or
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(b) the termination of compensation in the
form of superannuation contributions
where the termination is because the
worker is not, or has ceased to be,
5 entitled to compensation in the form of
weekly payments.".
__________________
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Part 5--Treatment Expenses
s. 48
PART 5--TREATMENT EXPENSES
48 Prior approval of medical and like services
(1) In section 99 of the Accident Compensation Act
1985, before subsection (1), insert--
5 "(1AA) The Authority may issue guidelines
identifying services, or services of a class of
services, referred to in subsection (1)(a) or
(aa) for which approval should be sought
from the Authority or self-insurer before the
10 services are provided.".
(2) After section 99(1A) of the Accident
Compensation Act 1985, insert--
"(1B) Unless the Authority or self-insurer
otherwise determines, the Authority or a self-
15 insurer is not liable to pay the reasonable
costs, or contribute a reasonable amount,
referred to in subsection (5A), (5B) or (5D)
unless the Authority or self-insurer,
approved the worker's requirement, and its
20 costs, under the relevant subsection before
the costs were incurred.".
49 Amendment of section 99--extension to
modifications of home or car
(1) In section 99(5A), (5B), (5C), (5D), (5E), (5F) and
25 (5G) of the Accident Compensation Act 1985,
after "Authority" (wherever occurring) insert "or
self-insurer".
(2) In section 99 of the Accident Compensation Act
1985--
30 (a) in subsection (6), omit "of the costs specified
in subsection (1)";
(b) in subsection (7), for "subsection (1)",
substitute "this section";
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(c) in subsection (8), for "subsection (1)",
substitute "this section";
(d) in subsection (9), for "subsection (1)",
substitute "this section".
5 50 Notice of cessation of compensation under section 99
After section 99(12) of the Accident
Compensation Act 1985, insert--
"(12A) Before compensation under subsection (11)
or (12) ceases, the Authority or self-
10 insurer--
(a) must give at least 28 days written
notice to the worker; and
(b) must state in the notice--
(i) the reasons for giving the notice;
15 and
(ii) the date when the entitlement will
cease.".
51 Repeal of section 99AAA
(1) Section 99AAA of the Accident Compensation
20 Act 1985 is repealed.
(2) In the Accident Compensation Act 1985--
(a) in section 5(1), in the definition of medical
question, paragraph (g) is repealed;
(b) in section 243(2), paragraph (ab) is
25 repealed.
52 Limits applying to contributions required towards
supported accommodation costs
(1) After section 99(16A) of the Accident
Compensation Act 1985 insert--
30 "(16B) Despite subsection (15), the Governor in
Council may, by Order published in the
Government Gazette, fix limits in respect of
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contributions to be made by a worker
towards the cost of supported
accommodation.
(16C) An Order made under subsection (16B)--
5 (a) may fix limits that vary according to
the type of supported accommodation
in which the worker is residing;
(b) takes effect on the date on which the
Order is published in the Government
10 Gazette or, if a later date is specified in
the Order, on that later date.".
(2) In section 99(17) of the Accident Compensation
Act 1985, for paragraph (c) substitute--
"(c) who then resides in supported
15 accommodation--".
(3) After section 99(18) of the Accident
Compensation Act 1985 insert--
"(19) In this section--
supported accommodation means--
20 (a) a residential facility in which
residential care is provided under
the Aged Care Act 1997 of the
Commonwealth;
(b) a supported residential service
25 within the meaning of section 3(1)
of the Health Services Act 1988;
(c) a community residential unit
within the meaning of section 3(1)
of the Disability Act 2006;
30 (d) a group home or other residential
facility approved by the Authority
for the purposes of this section.".
__________________
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Part 6--Lump Sum Benefits
s. 53
PART 6--LUMP SUM BENEFITS
53 Amendment of section 91
After section 91(7) of the Accident
Compensation Act 1985 insert--
5 "(7AA) For the purposes of section 98C(2A)(a)(ii)
and (iii), assessments of spinal impairment
are to specify the whole person values
derived in accordance with section 3.3 of
Chapter 3 of the A.M.A. Guides.".
10 54 Compensation for non-economic loss
(1) In section 98C of the Accident Compensation
Act 1985, before subsection (1) insert--
"(1A) In this section--
spinal impairment means a whole person
15 impairment derived solely in
accordance with section 3.3 of
Chapter 3 of the A.M.A. Guides,
without inclusion of any other
impairment.".
20 (2) In section 98C of the Accident Compensation
Act 1985, for subsections (2) and (2A)
substitute--
"(2) The amount of the non-economic loss in
respect of permanent impairment (other than
25 psychiatric impairment and industrial
deafness in respect of a further injury) is to
be calculated as at the date of the relevant
injury as follows--
(a) if the worker's impairment benefit
30 rating is less than 10%--the amount of
the non-economic loss is zero;
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(b) subject to section 265, if the worker's
impairment benefit rating--
(i) is a modified whole person
impairment (within the meaning
5 of subsection (2A)(a)(i)) and is
not less than 10% and less than
11%--the amount of the non-
economic loss is to be determined
in accordance with the formula--
10 $10 570 + [(D - 10) × $9 010];
(ii) is a modified spinal impairment
(within the meaning of subsection
(2A)(a)(ii)) and is not less than
10% and less than 11%--the
15 amount of the non-economic loss
is to be determined in accordance
with the formula--
{$10 570 + [(D - 10) × $9010]} ×
1.1;
20 (c) if the worker's impairment benefit
rating--
(i) is not less than 10% and not more
than 30% and paragraph (b) does
not apply to the worker--the
25 amount of the non-economic loss
is to be determined in accordance
with the formula--
$17 040 + [(D - 10) × $2560];
(ii) is a spinal impairment (within the
30 meaning of subsection (2A)(a)(ii)
or (iii)) and is not less than 10%
and less than 30% and paragraph
(b) does not apply to the worker--
the amount of the non-economic
35 loss is--
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(A) the amount determined in
accordance with the
formula--
{$17 040 + [(D - 10) ×
5 $2560]} × 1.1; or
(B) $68 240--
whichever is the lesser;
(d) if the worker's impairment benefit
rating is more than 30% and not more
10 than 70%--the amount of the non-
economic loss is to be determined in
accordance with the formula--
$68 160 + [(D - 30) × $4250];
(e) if the worker's impairment benefit
15 rating is more than 70% and not more
than 80%--the amount of the non-
economic loss is--
(i) the amount determined in
accordance with the formula--
20 $237 370 + [(D - 70) × $26 570];
or
(ii) $503 000--
whichever is the lesser;
(f) if the worker's impairment benefit
25 rating is more than 80%--the amount
of the non-economic loss is $503 000--
where D is the worker's impairment benefit
rating expressed as a number.
(2A) For the purposes of subsection (2), a
30 worker's impairment benefit rating is--
(a) if the worker's degree of impairment
consists of, or includes, a whole person
impairment assessed in accordance with
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Chapter 3 of the A.M.A. Guides and
that whole person impairment is not
less than 5% and not more than 29%--
(i) subject to section 265, the
5 modified whole person
impairment set out in column 2 of
Schedule 2 opposite the relevant
whole person impairment as
assessed in accordance with
10 Chapter 3;
(ii) subject to section 265, the
modified whole person
impairment set out in column 2 of
Schedule 2 opposite the relevant
15 whole person impairment as
assessed in accordance with
Chapter 3 for a spinal impairment;
(iii) if subparagraph (ii) does not
apply, the worker's degree of
20 impairment as assessed in
accordance with Chapter 3 for a
spinal impairment;
(iv) the worker's degree of
impairment--
25 whichever provides the worker with the
higher amount for non-economic loss
under subsection (2);
(b) in any other case, the worker's degree
of impairment.
30 Note
Subsections (2)(b) and (2A)(a)(i) and (ii) do not apply
with respect to injuries that occurred before the date
of commencement of the Accident Compensation
and Transport Accident Acts (Amendment) Act
35 2003--see section 265.".
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(3) In section 98C(3) of the Accident Compensation
Act 1985, for paragraphs (b), (c) and (d)
substitute--
"(b) if the worker's degree of impairment is
5 30%--the amount of the non-economic loss
is to be determined, subject to subsection
(3AA), in accordance with the formula--
$17 040 + [(D - 10) × $2560];
(c) if the worker's degree of impairment is more
10 than 30% and not more than 70%--the
amount of non-economic loss is the amount
determined, subject to subsection (3AA), in
accordance with the formula--
$68 160 + [(D - 30) × $4250];
15 (d) if the worker's degree of impairment is more
than 70% and not more than 80%--the
amount of the non-economic loss is--
(i) the amount determined in accordance
with the formula--
20 $237 370 + [(D - 70) × $26 570]; or
(ii) $503 000--
whichever is the lesser;".
(4) In section 98C(3)(e) of the Accident
Compensation Act 1985, for "$355 650"
25 substitute "$503 000".
(5) After section 98C(3) of the Accident
Compensation Act 1985 insert--
"(3AA) In relation to a relevant injury sustained
before 1 July 2010--
30 (a) a reference to an amount in dollars
referred to in subsection (3)(b) is a
reference to the corresponding amount
in dollars applying at the time of the
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injury under section 98C(2)(c) as then
in force in respect of permanent
impairment;
(b) a reference to an amount in dollars
5 referred to subsection (3)(c) is a
reference to the corresponding amount
in dollars applying at the time of the
injury under section 98C(2)(d) as then
in force in respect of permanent
10 impairment.
(3AB) In relation to a relevant injury sustained
before 1 July 2010, a reference to an amount
in dollars referred to in paragraph (b), (c) or
(d) of section 98C(2) is a reference to the
15 corresponding amount in dollars applying at
the time of the injury under that paragraph as
then in force.".
(6) After section 98C(6) of the Accident
Compensation Act 1985, insert--
20 "(6A) Subject to subsections (6B) and (6C), if a
worker sustains an injury, other than
industrial deafness, that occurs by way of
gradual process over time, the injury is
deemed to have been sustained on the last
25 day on which the worker was--
(a) performing duties; or
(b) exposed to conditions--
by reason of which the injury was due to the
nature of the worker's employment or arose
30 out of or in the course of the worker's
employment.
(6B) Subject to subsection (6C), if a worker
sustains an injury that occurs by way of
gradual process over time and on the day on
35 which the worker gives, serves or lodges a
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claim for compensation in respect of the
injury, the worker is still--
(a) performing duties; or
(b) exposed to conditions--
5 by reason of which the injury is due to the
nature of the worker's employment or arises
out of or in the course of employment, the
injury is deemed to have been sustained on
that day.
10 (6C) For the purposes of subsections (6A) and
(6B), the Minister may make guidelines
specifying considerations and circumstances
to be considered in determining whether
subsection (6A) or (6B) applies in respect of
15 an injury that occurs by way of gradual
process over time.
(6D) Guidelines made under subsection (6C) must
be published--
(a) in the Government Gazette; and
20 (b) on a Government Internet website.".
(7) In section 98C of the Accident Compensation
Act 1985, in subsections (7) and (8) for
"$355 650" substitute "$503 000".
(8) After section 98C(10) of the Accident
25 Compensation Act 1985 insert--
"(11) Despite anything to the contrary in this
section or section 98E, a worker is not
entitled to an amount of compensation for
non-economic loss under this section or
30 section 98E or both that exceeds the
maximum amount payable under this section
as in force at the date of the relevant injury.".
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55 Alignment of lump sum and common law pain and
suffering damages
In section 134AB(22)(b)(ii) of the Accident
Compensation Act 1985, for "$438 320"
5 substitute "$503 000".
56 Amendment of section 100
(1) In section 100(2B) of the Accident
Compensation Act 1985, paragraphs (b) and (c)
are repealed.
10 (2) After section 100(2D) of the Accident
Compensation Act 1985 insert--
"(2E) An amount specified in subsection (2F) shall
be varied, in respect of the financial year
beginning on 1 July 2010 and each
15 subsequent financial year, in accordance
with the formula--
E
D×
F
where--
D is the amount specified in
20 subsection (2F) or that amount as last
varied in accordance with this
subsection;
E is the all groups consumer price index
for Melbourne as at 15 June in the
25 preceding financial year last published
by the Australian Statistician in respect
of the December quarter of that
financial year;
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F is the all groups consumer price index
for Melbourne as at 15 June in the year
preceding the preceding financial year
published by the Australian Statistician
5 in respect of the December quarter
preceding that 15 June.
(2F) The specified amounts for the purpose of
subsection (2E) are any amounts of dollars
referred to in the following sections--
10 (a) section 98C;
(b) section 134AB(22).".
(3) In section 100(6) of the Accident Compensation
Act 1985, after paragraph (c) insert--
"(ca) an amount referred to in section 98C
15 or 134AB(22); or".
__________________
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Part 7--Access to Justice for Seriously Injured Workers
s. 57
PART 7--ACCESS TO JUSTICE FOR SERIOUSLY INJURED
WORKERS
57 Actions for damages--amendment of section 134AB
(1) For section 134AB(5) of the Accident
5 Compensation Act 1985 substitute--
"(5) An application under subsection (4) must--
(a) be in a form approved by the Authority;
and
(b) be accompanied by an authority in a
10 form approved by the Authority, signed
by the worker, authorising the release
of medical information to the Authority
or a self-insurer relevant to the
application; and
15 (c) be accompanied by--
(i) a copy of all medical reports; and
(ii) affidavits attesting to other
material--
existing when the application is made
20 and of which the worker or his or her
legal representative is aware and on
which the worker intends to rely, or the
substance of which the worker intends
to adduce in evidence, in proceedings
25 in accordance with this section or in
any related proceedings.
(5AA) An authority to release information referred
to in subsection (5)(b) has effect and cannot
be revoked by the worker--
30 (a) until all proceedings brought in
accordance with this section have been
heard and determined or compromised;
or
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(b) the worker withdraws his or her
application.".
(2) Section 134AB(19)(c) of the Accident
Compensation Act 1985 is repealed.
5 (3) After section 134AB(19) of the Accident
Compensation Act 1985 insert--
"(19A) Any finding made on an application for leave
to bring proceedings in respect of the injury
does not give rise to an issue estoppel in any
10 proceedings for the recovery of damages
brought in accordance with this section
which is heard and determined on and from
the commencement of section 57(3) of the
Accident Compensation Amendment Act
15 2009.".
(4) For section 134AB(21) of the Accident
Compensation Act 1985 substitute--
"(21) If a worker makes an application under
subsection (4) in respect of an injury the
20 worker must not make a further application
under that subsection in respect of that
injury.".
(5) After section 134AB(28) of the Accident
Compensation Act 1985 insert--
25 "(28A) For the purposes of determining a liability to
pay costs, or an entitlement to be paid costs,
under subsection (28)(b), (c) or (d), if the
amount of a judgment, order for damages,
settlement or compromise is required to be
30 reduced under subsection (25), the amount of
the reduction must be the amount of
compensation paid--
(a) to the date of the statutory counter offer
under subsection (12); or
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(b) to the date of the deemed statutory
counter offer under subsection (14).
(28B) A reduction under subsection (28A) must be
made before the reduction (if any) under
5 section 26(1) of the Wrongs Act 1958 is
made.".
(6) In section 134AB(36)(a) of the Accident
Compensation Act 1985, for "make payments
under section 93CA, 93CB, 93CC, 93CD, 93E or
10 93EA" substitute "pay weekly payments".
(7) After section 134AB(36) of the Accident
Compensation Act 1985 insert--
"(36A) If judgment is obtained, or a compromise or
a settlement is made, in respect of
15 proceedings referred to in subsection (1) and
the worker was, at the date of the judgment,
compromise or settlement, still in receipt of
compensation in the form of weekly
payments, where pecuniary loss damages are
20 awarded against the Authority, employer or
self-insurer, the Authority, employer or self-
insurer must, until the date on which a
cheque is drawn for the purpose of payment
of the judgment, compromise or settlement,
25 pay to the worker a weekly amount equal to
the net weekly amount that, but for
subsection (36), would have been payable to
the worker as compensation in the form of
weekly payments in respect of the injury.
30 (36B) Subsection (36A) applies only in respect of
proceedings referred to in subsection (1)
against a sole defendant where that sole
defendant was the worker's employer at the
date of the injury the subject of the
35 proceedings.
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(36C) An amount paid in accordance with
subsection (36A) is, to the extent of the
payment, part satisfaction of the liability in
respect of the judgment, settlement or
5 compromise.".
(8) In section 134AB(38) of the Accident
Compensation Act 1985--
(a) for paragraph (f) substitute--
"(f) for the purposes of paragraph (e)(i), a
10 worker's loss of earning capacity is to
be measured by comparing--
(i) the worker's gross income from
personal exertion (expressed at an
annual rate) which the worker is--
15 (A) earning, whether in suitable
employment or not; or
(B) capable of earning in suitable
employment--
as at that date, whichever is the
20 greater, and--
(ii) the gross income (expressed at an
annual rate) that the worker was
earning or was capable of earning
from personal exertion or would
25 have earned or would have been
capable of earning from personal
exertion during that part of the
period within 3 years before and
3 years after the injury as most
30 fairly reflects the worker's earning
capacity had the injury not
occurred;";
(b) in paragraph (j), after "the court" insert
", unless sections 134ABAA and 135BBA
35 apply".
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58 New section 134ABAA inserted
After section 134AB of the Accident
Compensation Act 1985 insert--
'134ABAA Determination of serious injury
5 application following death of worker
(1) This section applies if--
(a) a worker dies; and
(b) the worker made an application served
under section 134AB(4) before his or
10 her death; and
(c) at the time of the worker's death--
(i) the application of the worker was
pending; or
(ii) the worker had issued proceedings
15 seeking the leave of the Court to
commence proceedings following
the rejection of the application of
the worker by the Authority or a
self-insurer; or
20 (iii) the period specified in section
134AB(16)(b) within which a
worker is required to institute
proceedings had not expired; and
(d) the worker's death was not caused or
25 materially contributed to by the injury
which is the subject of the application
under section 134AB; and
(e) the worker left a dependant or
dependants.
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(2) If this section applies--
(a) the legal personal representative of the
deceased worker may take the same
action as could have been taken by the
5 worker had the worker not died--
(i) in respect of an application made
by the worker under section
134AB(4) before his or her death;
or
10 (ii) in respect of an application
referred to in section
134AB(16)(b)--within the
unexpired period of time that
would have been available to the
15 deceased, or after that period with
the consent of the Authority under
section 134AB(20);
(b) if an application under section
134AB(4) was pending at the time of
20 the worker's death, the Authority or
self-insurer, within the unexpired
period of time in which it had to
determine the application, must
determine whether, as at the date the
25 application was served, the worker had
a serious injury assessed in accordance
with this section;
(c) any right arising from a determination
by a Court, the Authority or a self-
30 insurer that a worker had a serious
injury is deemed, for the purposes of
section 29 of the Administration and
Probate Act 1958 to have vested in the
worker before the worker's death and
35 survives for the benefit of the deceased
worker's estate.
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(3) For the purposes of the assessment of
serious injury in respect of an application or
proceedings commenced or continued under
this section, the assessment must be made in
5 accordance with section 134AB(38) except
where this section otherwise provides.
(4) For the purposes of the assessment of
serious injury under this section, the
assessment must be made as at the date the
10 application was served by the worker before
his or her death under section 134AB(4).
(5) If it is determined that a worker referred to in
subsection (1) had a serious injury as at the
time he or she served the application under
15 section 134AB(4), notwithstanding anything
to the contrary in section 134AB, the legal
personal representative of the deceased
worker may bring proceedings for the
recovery of--
20 (a) pain and suffering damages in respect
of the injury; and
(b) if the deceased worker's application
established the matters specified in
section 134AB(38)(e), (f) and (g)--
25 pecuniary loss damages in respect of
the injury--
from the date the injury was sustained to the
date of death of the worker.
(6) For the purposes of subsection (5)(b)--
30 (a) section 134AB(38)(e) applies as if a
reference to "the date of the hearing of
an application" were a reference to the
date on which the application under
section 134AB(4) was served;
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(b) section 134AB(38)(f) applies as if a
reference to "that date" were a
reference to the date on which the
application under section 134AB(4)
5 was served.
(7) The death of a worker does not affect the
admissibility of--
(a) evidence obtained before or after the
worker served an application under
10 section 134AB(4); and
(b) evidence that would have otherwise
been admissible under section 134AB.
(8) In this section--
dependant means a person who at the time
15 of the death of the worker referred to in
subsection (1)--
(a) was wholly, mainly or partly
dependent on the earnings of the
worker; or
20 (b) would have been wholly, mainly
or partly dependent on the
earnings of the worker but for the
incapacity of the worker resulting
from, or materially contributed to
25 by, the serious injury the subject
of the application, or any
incapacity of the worker due to the
injury or disease which caused or
materially contributed to the
30 worker's death.
(9) A reference to service of an application
under section 134AB(4) in this section
means the service of an application in
accordance with directions made by the
35 Minister under section 134AF.'.
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59 New section 134ABB inserted
After section 134ABA of the Accident
Compensation Act 1985 insert--
"134ABB Calculation of limitation of actions period
5 (1) For the avoidance of doubt, it is declared
that, section 134AB does not affect the date
of accrual of a cause of action for the
purposes of the Limitation of Actions Act
1958.
10 (2) Subsection (1) is deemed to have
commenced on 20 October 1999.".
60 Repeal of section 134AD
Section 134AD of the Accident Compensation
Act 1985 is repealed.
15 61 Actions for damages--amendment of section 135A
(1) In section 135A(18)(a) of the Accident
Compensation Act 1985, for "make payments
under section 93A, 93B, 93C, 93CA, 93CB,
93CC, 93CD, 93E or 93EA" substitute "pay
20 weekly payments".
(2) After section 135A(18) of the Accident
Compensation Act 1985 insert--
"(18AA) If judgment is obtained, or a compromise or
a settlement is made, in respect of
25 proceedings referred to in subsection (1) and
the worker was, at the date of the judgment,
compromise or settlement, still in receipt of
compensation in the form of weekly
payments, where pecuniary loss damages are
30 awarded against the Authority, employer or
self-insurer, the Authority, employer or self-
insurer must, until the date on which a
cheque is drawn for the purpose of payment
of the judgment, compromise or settlement,
35 pay to the worker a weekly amount equal to
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the net weekly amount that, but for
subsection (18), would have been payable to
the worker as compensation in the form of
weekly payments in respect of the injury.
5 (18AB) Subsection (18AA) applies only in respect of
proceedings referred to in subsection (1)
against a sole defendant where that sole
defendant was the worker's employer at the
date of the injury the subject of the
10 proceedings.
(18AC) An amount paid in accordance with
subsection (18AA) is, to the extent of the
payment, part satisfaction of the liability in
respect of the judgment, settlement or
15 compromise.".
62 New section 135BBA inserted
After section 135BA of the Accident
Compensation Act 1985 insert--
"135BBA Actions by terminally ill workers
20 continued after death of worker
(1) This section applies if--
(a) a worker dies after serving proceedings
issued in reliance on section 135BA to
commence proceedings, in accordance
25 with section 134AB; and
(b) the worker's death was not caused or
materially contributed to by the injury
to which the proceedings relate; and
(c) at the time of the worker's death, the
30 worker had a dependant or dependants
within the meaning of section
134ABAA(8).
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(2) If this section applies--
(a) the legal personal representative of the
deceased worker may continue the
proceedings referred to in subsection
5 (1)(a); and
(b) proceedings referred to in subsection
(1)(a) are taken to be, and are limited
to, an application served under section
134AB(4) by the worker before the
10 worker's death; and
(c) subject to paragraph (d), section
134ABAA applies to the proceedings
referred to in subsection (1)(a); and
(d) despite section 134ABAA(3), (4) and
15 (5), for the purposes of the assessment
of serious injury, the assessment must
be made as at the date the proceedings
referred to in subsection (1)(a) were
served.".
20 63 New section 135AD inserted
After section 135AC of the Accident
Compensation Act 1985 insert--
"135AD Limitation of Actions Act 1958
(1) For the avoidance of doubt, it is declared
25 that, sections 135A and 135AC do not affect
the date of accrual of a cause of action for
the purposes of the Limitation of Actions
Act 1958.
(2) Subsection (1) is deemed to have
30 commenced on the appointed day.".
__________________
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Part 8--Payments for Family Members following Work-related Deaths
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PART 8--PAYMENTS FOR FAMILY MEMBERS
FOLLOWING WORK-RELATED DEATHS
64 Definition
(1) Insert the following definition in section 5(1) of
5 the Accident Compensation Act 1985--
"person under a disability means a person who is
incapable by reason of injury, disease,
senility, illness, or physical or mental
infirmity of managing his or her affairs in
10 relation to a matter or proceeding under this
Act;".
(2) In section 5(1) of the Accident Compensation
Act 1985, for the definition of member of a
family substitute--
15 "member of a family, in relation to a person,
means--
(a) a partner, father, mother, grandfather,
grandmother, step-father, step-mother,
son, daughter, grand-son, grand-
20 daughter, step-son, step-daughter,
brother, sister, half-brother and half-
sister of the person; and
(b) any person who stands in the place of a
parent in relation to the person;".
25 (2) After section 5(3) of the Accident Compensation
Act 1985 insert--
"(3A) Unless the contrary intention appears, in this
Act, member of a worker's family, member
of a share farmer's family and member of
30 an employer's family have the same
meaning as member of a family has in
subsection (1).".
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65 Jurisdiction of Magistrates' Court--amendment of
section 43
After section 43(1A) of the Accident
Compensation Act 1985 insert--
5 "(1B) The Magistrates' Court has exclusive
jurisdiction to hear and determine any
application made under section 92AA.".
66 Consequential amendments
(1) In section 49(1) of the Accident Compensation
10 Act 1985 after "92A," insert "92AA,".
(2) In section 135C(7)(a) of the Accident
Compensation Act 1985, for "or 92B" substitute
", 92B or 92D".
67 Compensation for death of a worker--amendment
15 of section 92
(1) For section 92(1) of the Accident Compensation
Act 1985 substitute--
"(1) If a worker's death results from or is
materially contributed to by an injury which
20 entitles the worker's dependants to
compensation, the amount of the
compensation must be determined--
(a) if a dependant does not have legal
representation, or is a minor or a person
25 under a disability, by the court in
accordance with this section; or
(b) in all other cases, by the Authority or
self-insurer in accordance with this
section.".
30 (2) In section 92(3) of the Accident Compensation
Act 1985, for "County Court" substitute "court,
Authority or self-insurer".
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(3) In section 92(4) of the Accident Compensation
Act 1985--
(a) for "members of his or her family" (where
twice occurring) substitute "members of the
5 worker's family";
(b) for "County Court" substitute "court, the
Authority or self-insurer".
(4) In section 92(6) of the Accident Compensation
Act 1985, for "County Court" substitute "court,
10 the Authority or self-insurer".
(5) For section 92(7) of the Accident Compensation
Act 1985 substitute--
"(7) A dependant is entitled to interest at the
prescribed rate on an amount of
15 compensation determined in accordance with
this section--
(a) in the case of a determination by the
court--in respect of the period
beginning on the date the claim for
20 compensation was lodged in
accordance with section 103 and ending
on the date of the determination; or
(b) in the case of a determination made by
the Authority or self-insurer--in
25 respect of the period beginning on the
date the claim was lodged in
accordance with section 103 and ending
on the date the Authority or self-insurer
makes the determination.".
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68 Revised compensation for death of worker--
amendment of section 92A
(1) In section 92A(1) of the Accident Compensation
Act 1985, in paragraph (b) of the definition of
5 child--
(a) for "21 years" substitute "25 years";
(b) after "student" insert "or full-time
apprentice".
(2) In section 92A(1) of the Accident Compensation
10 Act 1985--
(a) insert the following definition--
"corresponding law means an Act of another
State or Territory in relation to the
status of a child who is born after the
15 death of a person whether or not the
birth of that child was a result of an
assisted reproductive treatment using
the gametes, or an embryo formed from
the gametes, of the deceased person;";
20 (b) for the definition of dependent child
substitute--
"dependent child means a child who is a
dependant of the worker and includes--
(a) an orphan child;
25 (b) a child born after the death of the
worker where the deceased worker
is that child's parent because of
the Status of Children Act 1974
or a corresponding law;".
30 (3) After section 92A(2) of the Accident
Compensation Act 1985 insert--
"(2A) For the purposes of this section and
section 92B, a partner who resided with the
worker at the time of the worker's death is
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deemed to have been dependent on the
earnings of the worker at the time of the
worker's death.
(2B) Subsection (2A) applies to all claims first
5 received on and from 10 December 2009--
(a) by the Authority, whether forwarded by
the employer or lodged by a partner to
which that subsection applies; or
(b) by a self-insurer, having been given or
10 served on the self-insurer by a partner
to which that subsection applies.".
(4) For section 92A(3) of the Accident
Compensation Act 1985 substitute--
"(3) If a worker's death results from or is
15 materially contributed to by an injury which
entitles the worker's dependants to
compensation, the amount of compensation
must be determined--
(a) if a dependant does not have legal
20 representation, or is a minor or a person
under a disability, by the court in
accordance with this section; or
(b) in all other cases, by the Authority or
self-insurer in accordance with this
25 section.".
(5) In sections 92A(4) and 92A(5) of the Accident
Compensation Act 1985, for "$250 000"
substitute "$503 000".
(6) In section 92A(6) of the Accident Compensation
30 Act 1985--
(a) in paragraph (a), for "$225 000" substitute
"$452 700";
(b) in paragraph (b), for "$25 000" substitute
"$50 300".
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(7) In section 92A(7) of the Accident Compensation
Act 1985--
(a) for "$250 000" substitute "503 000";
(b) in paragraph (a), for "$12 500" substitute
5 "$25 150".
(8) In section 92A(8) of the Accident Compensation
Act 1985--
(a) for "$250 000" substitute "$503 000";
(b) in paragraph (a), for "$187 500" substitute
10 "$377 250";
(c) in paragraph (b), for "$62 500" substitute
"$125 750".
(9) In sections 92A(8A) and 92A(8B) of the Accident
Compensation Act 1985--
15 (a) for "$250 000" substitute "$503 000;
(b) for "County Court" substitute "court, the
Authority or self-insurer".
(10) In section 92A(9) of the Accident Compensation
Act 1985--
20 (a) for "$250 000" substitute "$503 000";
(b) for "County Court" substitute "court,
Authority or self-insurer";
(c) for "the Court" substitute "the court, the
Authority, or self-insurer".
25 (11) In section 92A(10) of the Accident
Compensation Act 1985, for "members of his or
her family" (where twice occurring) substitute
"members of the worker's family".
(12) In section 92A(11) of the Accident
30 Compensation Act 1985--
(a) for "a child" substitute "a minor or a person
under a disability";
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(b) for "the child" substitute "the minor or
person under a disability";
(c) for "County Court" substitute "court".
(13) For section 92A(12) of the Accident
5 Compensation Act 1985 substitute--
"(12) A claimant is entitled to interest at the
prescribed rate on an amount of
compensation determined in accordance with
this section--
10 (a) in the case of a determination by the
court--in respect of the period
beginning on the date the claim for
compensation was lodged in
accordance with section 103 and ending
15 on the date of the determination; or
(b) in the case of a determination by the
Authority or self-insurer--in respect of
the period beginning on the date the
claim was lodged in accordance with
20 section 103 and ending on the date the
Authority or self-insurer makes the
determination.".
69 New section 92AA inserted
After section 92A of the Accident Compensation
25 Act 1985 insert--
"92AA Reimbursement of expenses incurred by
non-dependent family members of a
deceased worker
(1) In this section--
30 expenses does not include--
(a) the cost of any service or
contribution that may be claimed
under section 99;
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(b) the legal or other costs of a
member of the deceased worker's
family incurred by that person as a
result of a dispute arising from the
5 deceased worker's will, or the
distribution of the deceased
worker's estate;
(c) the cost of the loss of a service
provided to a member of the
10 deceased worker's family;
maximum amount means an amount of
$30 000 in total for expenses incurred
as a result of a worker's death,
regardless of how many members of the
15 deceased worker's family apply under
this section.
(2) If a worker's death results from, or is
materially contributed to by, an injury arising
out of or in the course of employment and
20 if--
(a) had the worker had a dependant, or
dependants at the time of his or her
death, the injury would have entitled
that dependant or dependants to
25 compensation under this Act; and
(b) the worker did not have any dependants
at the time of his or her death
(including any dependent child within
the meaning of section 92A(1))--
30 a member of the worker's family may apply
to the Magistrates' Court for an order that the
Authority or a self-insurer (as appropriate)
reimburse the applicant for expenses
incurred as a result of the worker's death.
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(3) An application under this section must--
(a) specify the expenses of the applicant
incurred as a result of the death of the
worker and how the incurring of those
5 expenses caused financial hardship to
the applicant;
(b) be made within 2 years after the date of
the worker's death unless subsection (4)
applies.
10 (4) The Magistrates' Court may grant leave to an
applicant to apply out of time, if the
applicant has a special excuse for not making
the application within time.
(5) On application under this section, the
15 Magistrates' Court may, in its discretion,
order that the Authority or a self-insurer
reimburse an applicant for expenses not
exceeding the maximum amount if the Court
is satisfied that--
20 (a) the expenses incurred by the applicant
were as a result of the death of the
worker; and
(b) the expenses were reasonably incurred
and are of a reasonable amount; and
25 (c) the incurring of the expenses caused
financial hardship to the applicant.
(6) In making an order under this section, the
Magistrates' Court may order that more than
one applicant in respect of a deceased worker
30 be reimbursed by the Authority or self-
insurer under this section however the total
amount ordered to be reimbursed in respect
of the deceased worker must not exceed the
maximum amount regardless of how many
35 applicants apply in respect of that deceased
worker.
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(7) The Magistrates' Court must not award any
interest if making an order for
reimbursement of an applicant under this
section.
5 (8) A reimbursement of expenses under this
section is not a payment of compensation
under this Act except for the purposes of--
(a) calculating employer premiums;
(b) contributions under Division 6A of
10 Part IV;
(c) seeking indemnity from a third party
under section 138;
(d) seeking a refund of payments under
section 249A.".
15 70 Weekly pensions for dependants of worker who
dies--amendment of section 92B
(1) For section 92B(9) of the Accident
Compensation Act 1985 substitute--
"(9) A child ceases to be eligible under this
20 section--
(a) on attaining the age of 16 years; or
(b) if the child is a full-time student or a
full-time apprentice on attaining
16 years, whichever of the following
25 occurs first--
(i) on ceasing to be a full-time
student or full-time apprentice; or
(ii) the child attains the age of
25 years.
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(9A) For the purposes of subsection (9)(b)--
(a) a child does not cease to be a full-time
student or a full-time apprentice if that
child ceases to be a student in order to
5 become an apprentice;
(b) a child does not cease to be a full-time
student or a full-time apprentice if that
child ceases to be an apprentice in order
to become a student;
10 (c) if a child attains the age of 25 years
before ceasing to be a full-time student
or full-time apprentice, the child
remains eligible under this section until
the end of the calendar year in which
15 the child attains the age of 25.".
(2) Section 92B(10) of the Accident Compensation
Act 1985 is repealed.
71 New section 92D inserted
After section 92C of the Accident Compensation
20 Act 1985 insert--
"92D Provisional payment
(1) Subject to subsection (7), if it appears to the
Authority or self-insurer that a person may
be entitled to compensation in respect of the
25 death of the worker, the Authority or self-
insurer may make provisional payments to
the person as follows--
(a) weekly pension that may be payable
under section 92B(3)(a) for a period of
30 up to 12 weeks from the date of death
of the worker;
(b) medical and other costs that may be
payable under section 99(1)(a) up to a
maximum of $7500;
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(c) family counselling services costs that
may be payable under section 99(1)(aa)
up to the maximum prescribed in that
section;
5 (d) the costs of the deceased worker's
burial or cremation that may be payable
under section 99(1)(b) up to the
maximum amount determined as
reasonable costs by the Authority under
10 section 99(2).
(2) Except as provided by subsection (3), a
provisional payment made under a paragraph
in subsection (1) may be paid to more than
one person however the total paid in respect
15 of a deceased worker must not exceed the
maximum set out in the relevant paragraph
under that subsection regardless of how
many persons receive provisional payments.
(3) Only one partner of a deceased worker may
20 receive provisional payments under
subsection (1)(a).
(4) A provisional payment made under this
section is not a payment of compensation
under this Act except for the purposes of--
25 (a) calculating employer premiums;
(b) contributions under Division 6A of
Part IV;
(c) the reduction of common law damages
under section 135C(7)(a);
30 (d) seeking indemnity from a third party
under section 138;
(e) seeking a refund of payments under
section 249A.
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(5) A decision made by the Authority or self-
insurer to make provisional payments under
this section is not an admission of liability to
pay compensation under this Act.
5 (6) If liability to pay compensation in respect of
the death of a worker is accepted, or
determined by a court to be payable, after a
provisional payment has been made to a
person--
10 (a) under subsection (1)(a), any liability the
Authority or self-insurer has to the
person to whom the payment was made
under section 92B(3)(a) or 92B(4)(a) is
discharged to the extent of that
15 payment;
(b) under subsection (1)(b), any liability
the Authority or self-insurer has under
section 99(1)(a) is discharged to the
extent of that payment;
20 (c) under subsection (1)(c), any liability the
Authority or self-insurer has under
section 99(1)(aa) is discharged to the
extent of that payment;
(d) under subsection (1)(d), any liability
25 the Authority or self-insurer has under
section 99(1)(b) is discharged to the
extent of that payment.
(7) The Authority or self-insurer must not make
provisional payments to a person under this
30 section in respect of the death of the worker
in the following circumstances--
(a) if it appears to the Authority or self-
insurer that the worker's death resulted
from or was materially contributed to
35 by a heart attack injury, disease or a
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stroke injury unless at the time of the
worker's death--
(i) the Authority or the self-insurer
had already accepted a claim for
5 compensation made by the worker
before his or her death in respect
of that injury; and
(ii) the worker was receiving
compensation payments in respect
10 of that injury before the worker's
death;
(b) the worker committed suicide;
(c) if the provisional payment would have
to be made to a court-appointed
15 guardian because the person is a minor
or person under a disability.
(8) The Authority may issue guidelines for the
purposes of this section relating to the
process to be observed by the Authority or
20 self-insurer when acting under this section.
(9) Proceedings must not be brought in respect
of any question or matter arising out of a
decision of the Authority or self-insurer
under this section.
25 (10) In subsection (9), proceedings includes--
(a) the inquiry into, hearing and
determination of any question or matter
under this Act;
(b) seeking the grant of any relief or
30 remedy in the nature of certiorari,
prohibition, mandamus or quo
warranto, or the grant of a declaration
of right or an injunction;
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(c) seeking any order under the
Administrative Law Act 1978;
(d) any other action or proceeding.".
72 Indexation--amendment of section 100
5 (1) After section 100(2F) of the Accident
Compensation Act 1985 insert--
"(2G) An amount specified in subsection (2H) shall
be varied, in respect of the financial year
beginning on 1 July 2010 and each
10 subsequent financial year, in accordance
with the formula--
E
D×
F
where--
D is the amount specified in
15 subsection (2H) or that amount as last
varied in accordance with this
subsection;
E is the all groups consumer price index
for Melbourne as at 15 June in the
20 preceding financial year last published
by the Australian Statistician in respect
of the December quarter of that
financial year;
F is the all groups consumer price index
25 for Melbourne as at 15 June in the year
preceding the preceding financial year
published by the Australian Statistician
in respect of the December quarter
preceding that 15 June.
30 (2H) The specified amounts for the purposes of
subsection (2G) are any amount of dollars
referred to in the following sections--
(a) section 62;
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(b) section 92AA;
(c) section 92D(1)(b).
(2I) Subject to subsection (2J), the amount of any
compensation in the form of weekly
5 payments of pension payable under section
92B to a deceased worker's dependants shall
be varied--
(a) on 1 July 2010 in respect of the
financial year commencing on that
10 date; and
(b) on 1 July of each subsequent year in
respect of the financial year
commencing on that date--
by varying the amount of the worker's pre-
15 injury average weekly earnings for the
purposes of the calculation of the amount of
the weekly pension in accordance with the
formula--
E
D×
F
20 where--
D is the amount of the worker's pre-injury
average weekly earnings or that amount
as last varied in accordance with this
subsection or otherwise;
25 E is the latest average weekly earnings as
for all employees in Victoria published
by the Australian Statistician in respect
of the December quarter in the year
before that 1 July;
30 F is the average weekly earnings of all
employees in Victoria published by the
Australian Statistician in respect of the
December quarter of the year that is
2 years before that 1 July.
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(2J) If a worker's death resulted from or was
materially contributed to by an injury arising
out of or in the course of employment, and
the injury occurred on a date after 5 March
5 1990 and the deceased worker died more
than one year after the date of the injury, the
amount of any compensation in the form of
weekly payments of pension payable to the
dependants of the deceased worker under
10 section 92B shall be varied on the
anniversary date of the injury in respect of
the year beginning on that date by varying
the amount of the deceased worker's pre-
injury average weekly earnings for the
15 purposes of the calculation of the amount of
the weekly pension in accordance with the
formula--
E
D×
F
where--
20 D is the amount of the worker's pre-injury
average weekly earnings or that amount
as last varied in accordance with this
subsection or otherwise.
E is the latest average weekly earnings as
25 at the 15th day of the month (the
relevant month) preceding the month
in which the anniversary falls of all
employees in Victoria published by the
Australian Statistician in respect of the
30 latest available quarter before that
anniversary.
F is the average weekly earnings of all
employees for Victoria as at the 15th
day of the relevant month in the year
35 preceding the year in which that
anniversary falls published by the
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Australian Statistician in respect of the
quarter before that relevant month
corresponding to the quarter referred to
above.".
5 (2) In section 100(6) of the Accident Compensation
Act 1985, after paragraph (b) insert--
"(ba) an amount referred to in section 62, 92AA,
92B or 92D(1)(b); or".
73 New section 252H inserted
10 After section 252G of the Accident
Compensation Act 1985 insert--
"252H Supreme Court--limitation of jurisdiction
It is the intention of section 92D as inserted
by section 71 of the Accident
15 Compensation Amendment Act 2009 to
alter or vary section 85 of the Constitution
Act 1975.".
__________________
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Disputes
PART 9--TRANSPARENCY IN DECISION-MAKING AND
EFFICIENT RESOLUTION OF DISPUTES
74 Definitions
(1) Insert the following definition in section 5(1) of
5 the Accident Compensation Act 1985--
"registered optometrist means an optometrist
registered under the Health Professions
Registration Act 2005;".
(2) In the definition of medical question in
10 section 5(1) of the Accident Compensation Act
1985--
(a) after paragraph (aba) insert--
"(abaa) a question as to whether a worker, on a
particular date or during a particular
15 period, had no current work capacity
and if not, what employment would or
would not have constituted suitable
employment on that date or during that
period; or";
20 (b) in paragraph (ac), after "medical" insert
", personal and household or occupational
rehabilitation";
(c) after paragraph (c) insert--
"(ca) a question as to the extent to which any
25 physical or mental condition, including
any impairment, results from or is
materially contributed to by the injury;
or";
(d) in paragraph (f), for "injury;" substitute
30 "injury; or";
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(e) after paragraph (f), insert--
"(fa) a question whether a worker's
incapacity for work results from or is
materially contributed to by an injury or
5 alleged injury; or".
(3) For the definition of suitable employment in
section 5(1) of the Accident Compensation Act
1985 substitute--
"suitable employment, in relation to a worker,
10 means employment in work for which the
worker is currently suited--
(a) having regard to--
(i) the nature of the worker's
incapacity and the details provided
15 in medical information including,
but not limited to, the certificate
of capacity supplied by the
worker; and
(ii) the nature of the worker's pre-
20 injury employment; and
(iii) the worker's age, education, skills
and work experience; and
(iv) the worker's place of residence;
and
25 (v) any plan or document prepared as
part of the return to work planning
process; and
(vi) any occupational rehabilitation
services that are being, or have
30 been, provided to or for the
worker; and
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(b) regardless of whether--
(i) the work or the employment is
available; and
(ii) the work or the employment is of
5 a type or nature that is generally
available in the employment
market;".
(4) After section 5(1C) of the Accident
Compensation Act 1985 insert--
10 "(1D) For the purposes of Part VIIB, the definition
of suitable employment also includes--
(a) employment in respect of which the
number of hours each day or week that
the worker performs work or the range
15 of duties the worker performs is
suitably increased in stages in
accordance with return to work
planning or otherwise;
(b) employment the worker is undertaking
20 or that is offered to the worker
regardless of whether the work or the
employment is of a type or nature that
is generally available in the
employment market;
25 (c) suitable training or vocational re-
education provided by the employer or
under arrangements approved by the
employer (whether or not the employer
also provides employment involving
30 the performance of work duties), but
only if the employer pays an
appropriate wage or salary to the
worker in respect of the time the
worker attends suitable training or
35 vocational re-education.".
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Disputes
75 Jurisdiction of the Magistrates' Court--amendment
of section 43
(1) For section 43(1) of the Accident Compensation
Act 1985 substitute--
5 "(1) If the County Court would have had
jurisdiction under this Act or the Workers
Compensation Act 1958 to inquire into,
hear and determine any question or matter,
the Magistrates' Court has a like jurisdiction
10 unless expressly excluded by this Act.".
(2) Section 43(2) of the Accident Compensation Act
1985 is repealed.
76 Medical questions--amendment of section 45
(1) For section 45(1) of the Accident Compensation
15 Act 1985 substitute--
"(1) If the court exercises jurisdiction under this
Part, the court--
(a) may on the court's own motion, refer a
medical question to a Medical Panel for
20 an opinion under this Division; or
(b) subject to subsections (1B), (1C) and
(1D), must refer a medical question to a
Medical Panel for an opinion under this
Division if--
25 (i) a party to the proceedings requests
that a medical question or medical
questions be referred; and
(ii) that party notified the court of the
party's intention to make the
30 request no later than 14 days prior
to the date fixed for hearing of the
proceedings or another time
determined by the court.".
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(2) In section 45(1B) and (1C) of the Accident
Compensation Act 1985 omit "County"
(wherever occurring).
(3) After section 45(1C) of the Accident
5 Compensation Act 1985 insert--
"(1D) The court must not refer a medical question
if it appears to the court that the formation of
an opinion by the Medical Panel on the
medical question will depend substantially
10 on the resolution of factual issues which are
more appropriately determined by the court
than by a Medical Panel.
(1E) If under subsection (1D) a court has not
referred a medical question to a Medical
15 Panel, the court may--
(a) state a question to be answered by the
court for the purposes of determining
the factual issues referred to in
subsection (1D); and
20 (b) give directions for the hearing and
determination of that question; and
(c) hear and determine the question, and by
the answer to that question, make
appropriate findings of fact.
25 (1F) After answering a question referred to in
subsection (1E) the court may refer a
medical question to a Medical Panel for an
opinion.
(1G) If, under subsection (1F), the court refers a
30 medical question to a Medical Panel, the
court must provide the Medical Panel with--
(a) a copy of the question and the court's
answer to the question; and
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(b) any reasons published by the court in
relation to the question; and
(c) any further documents the court
considers appropriate.
5 (1H) In forming an opinion on the medical
question referred to a Medical Panel under
subsection (1F), the Medical Panel is bound
by the answer to the question stated and
answered by the court under
10 subsection (1E).".
(4) In section 45(2) and (4) of the Accident
Compensation Act 1985 omit "County"
(wherever occurring).
77 New section 48A inserted
15 After section 48 of the Accident Compensation
Act 1985 insert--
"48A Use of documents relating to worker's
claim
Despite anything to the contrary in any Act
20 (other than the Charter of Human Rights
and Responsibilities), or at common law, a
document produced or served, or information
acquired, in respect of a proceeding or claim
for compensation, damages or other payment
25 under, or in accordance with, this Act or any
other proceeding under this Act or at
common law, whether before, on or after the
commencement of section 77 of the
Accident Compensation Amendment Act
30 2009 may be used in and for the purposes of
any claim, proceeding or payment under, or
in accordance with, this Act.".
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78 Certain proceedings referred for conciliation--
amendment of section 49
After section 49(1) of the Accident
Compensation Act 1985 insert--
5 "(1A) Despite the requirements of subsection (1), if
proceedings have already been commenced
in a court in respect of a claim under this Act
and another dispute to which subsection (1)
applies (the other dispute) exists between the
10 parties (whether relating to the claim or to
another claim) that has not been referred to
conciliation under Division 2 of Part III, the
other dispute need not be referred for
conciliation if a party seeks and obtains the
15 leave of the court to add the other dispute to
the matters to be brought before the court.".
79 Appointment of Conciliation Officers--amendment
of section 52D
After section 52D(2) of the Accident
20 Compensation Act 1985 insert--
"(2A) The appointment of a person as a
Conciliation Officer is to be made on the
advice of the Senior Conciliation Officer.".
80 Substitution of section 52F
25 For section 52F of the Accident Compensation
Act 1985 substitute--
"52F Senior Conciliation Officer
(1) The functions of the Senior Conciliation
Officer are--
30 (a) to ensure conciliations are conducted
by the Service in an expeditious and
consistent manner;
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(b) to ensure Conciliation Officers comply
with any protocols for the conduct of
conciliations;
(c) to ensure the Service operates in a
5 transparent and accountable manner;
(d) to monitor the performance of the
Service;
(e) to collect data specified in section
52FA and provide that data to the
10 Minister on an annual basis;
(f) any other functions conferred on the
Senior Conciliation Officer by or under
this Act.
(2) The Minister may, from time to time, issue
15 guidelines in respect of the carrying out of
functions of, and the exercise of powers by,
the Senior Conciliation Officer for the
purposes of this section.
(3) In exercising his or her powers and carrying
20 out his or her functions under this Act, the
Senior Conciliation Officer (and any person
acting as the Senior Conciliation Officer)
must observe any guidelines issued by the
Minister.
25 (4) In this Act, a reference to a Conciliation
Officer includes a reference to the Senior
Conciliation Officer unless the contrary
intention appears.
52FA Data to be collected by the Senior
30 Conciliation Officer
(1) The Senior Conciliation Officer must on or
before 1 September each year, collect and
provide the Minister with the following data
in respect of the year ending 30 June--
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(a) the number of disputes referred for
conciliation;
(b) the number of matters referred to a
medical panel;
5 (c) the nature and number of complaints
referred to the Service about the
conduct of the Service;
(d) the number and nature of the outcomes
of the disputes referred for conciliation;
10 (e) the number of medical reports received
or requested by the Service under
section 56(5A);
(f) the number of instances the Senior
Conciliation Officer allowed an
15 extension of time for lodging an
application or allowed an application to
be lodged out of time under
section 55(3);
(g) any other information that the Minister
20 might request for inclusion.
(2) A person may request the Senior
Conciliation Officer to make the data
collected under subsection (1) publicly
available.
25 (3) If the Senior Conciliation Officer receives a
request under subsection (2), the Senior
Conciliation Officer must make the data
publicly available as soon as reasonably
possible.".
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81 Removal from office--amendment of section 52I
Before subsection (1) of section 52I of the
Accident Compensation Act 1985 insert--
"(1A) The Senior Conciliation Officer may advise
5 the Minister on the removal or suspension of
a Conciliation Officer having regard to--
(a) the capability of the Conciliation
Officer in the performance of official
duties; or
10 (b) any refusal or neglect by the
Conciliation Officer in performance of
those duties; or
(c) any serious breaches of confidentiality
by the Conciliation Officer; or
15 (d) any serious breach of one or more of
the Conciliation Officer's terms or
conditions of engagement;
(e) any other matter the Senior
Conciliation Officer considers relevant
20 to the removal or suspension of a
Conciliation Officer.".
82 New section 55AB inserted
Before section 56 of the Accident Compensation
Act 1985 insert--
25 "55AB Production and disclosure of information
A party to a dispute who participates in a
conciliation, must produce all documents in
the party's possession, custody or power and
disclose all information, to the conciliation
30 officer that--
(a) relate to the dispute; and
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(b) are reasonably available to the party--
unless the party claims privilege or immunity
from producing that document or disclosing
that information.".
5 83 Procedures before Conciliation Officers--
amendment of section 56
(1) After section 56(5) of the Accident
Compensation Act 1985 insert--
"(5A) The Authority or a self-insurer must pay the
10 reasonable costs of a report provided by a
registered health practitioner specified in
subsection (5B) who has examined a worker
if--
(a) the report has been requested by a
15 Conciliation Officer; and
(b) the worker has consented to a report
being provided.
(5B) The following registered health practitioners
are specified for the purposes of
20 subsection (5A)--
(a) a registered medical practitioner;
(b) a registered dentist;
(c) a registered optometrist;
(d) a registered physiotherapist;
25 (e) a registered chiropractor;
(f) a registered osteopath;
(g) a registered podiatrist;
(h) a registered psychologist.".
(2) Section 56(9A) of the Accident Compensation
30 Act 1985 is repealed.
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Disputes
84 Conciliation of disputes--amendment of section 57
After section 57(2) of the Accident
Compensation Act 1985 insert--
"(3) Subject to subsection (6), a Conciliation
5 Officer must issue an outcome certificate
within 7 days of the conclusion of a
conciliation if--
(a) the dispute that is the subject of the
conciliation was referred to conciliation
10 under section 55; and
(b) the dispute was resolved.
(4) The outcome certificate must--
(a) be in a form approved by the Senior
Conciliation Officer; and
15 (b) be provided to the worker and employer
and the Authority or self-insurer; and
(c) set out any terms on which the dispute
was resolved; and
(d) certify that each party to the dispute is
20 bound by the result; and
(e) state that the outcome certificate is
evidence of--
(i) the resolution of the dispute
between the parties; and
25 (ii) the terms on which the dispute has
been resolved.
(5) The outcome certificate is admissible in any
court proceeding as evidence of--
(a) the resolution of the dispute between
30 the parties; and
(b) the terms on which the dispute has been
resolved.
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(6) A Conciliation Officer is not required to
comply with subsection (3) in relation to a
dispute referred to in that subsection if the
Conciliation Officer issues a certificate under
5 section 49(1)(b) or 104(7) in respect of that
dispute.".
85 Disputes relating to weekly payments--amendment
of section 59
In section 59(9) of the Accident Compensation
10 Act 1985, for "$2000" substitute "$5000".
86 Certain evidence inadmissible in proceedings--
amendment of section 61A
At the end of section 61A of the Accident
Compensation Act 1985 insert--
15 "(2) This section does not apply to evidence of an
outcome certificate issued under
section 57(3).".
87 Costs--amendment of section 62
At the end of section 62 of the Accident
20 Compensation Act 1985 insert--
"(2) Despite subsection (1) and regardless of the
outcome of a conciliation conference, the
Authority or a self-insurer is liable to--
(a) pay the reasonable expenses of the
25 worker's transport to and from the
conciliation conference as specified in
subsection (3);
(b) reimburse the worker for any loss of
income sustained by the worker in
30 attending the conciliation conference as
specified in subsection (4).
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(3) An amount not exceeding $50 may be paid
to a worker for his or her reasonable
transportation expenses in getting to and
from the conciliation conference.
5 (4) An amount not exceeding $350 per day may
be paid to a worker for any loss of income
sustained as a result of his or her attendance
at the conciliation conference.
(5) A payment made in accordance with
10 subsection (2) is not a payment of
compensation under this Act except for the
purposes of--
(a) calculating employer premiums;
(b) contributions under Division 6A of
15 Part IV;
(c) seeking an indemnity from a third party
under section 138;
(d) seeking a refund of payments under
section 249A.".
20 88 Establishment and constitution--amendment of
section 63
For section 63(4) and (4A) of the Accident
Compensation Act 1985 substitute--
"(4) The Convenor may--
25 (a) convene a Medical Panel; and
(b) determine the number of members that
are to constitute a Medical Panel based
on what he or she considers to be
appropriate in each particular case.".
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89 Procedures and powers--amendment of section 65
(1) After section 65(4) of the Accident
Compensation Act 1985 insert--
"(4A) If a worker is a minor or a person under a
5 disability, the Medical Panel must permit a
representative of the worker to be present.".
(2) After section 65(5) of the Accident
Compensation Act 1985 insert--
"(5A) Notwithstanding sections 67(1A) and 68(1),
10 if a Conciliation Officer refers a medical
question to a Medical Panel under section
56(6) and it becomes apparent to the
Convenor or the Medical Panel that the
formation of an opinion by the Medical
15 Panel on the medical question will depend
substantially on the resolution of factual
issues which are more appropriately
determined by a court than by a Medical
Panel--
20 (a) the Convenor may decline to convene a
Medical Panel; or
(b) the Medical Panel may decline to give
an opinion on the medical question.
(5B) The Convenor must inform the Conciliation
25 Officer, in writing, of a decision made by the
Convenor or the Medical Panel under
subsection (5A)(a) or (b).
(5C) If a Medical Panel has been referred a
medical question and the Medical Panel
30 considers that further information is required
to enable the medical panel to form a
medical opinion on the question--
(a) the Medical Panel may request the
person or body referring the medical
35 question to provide the information
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within the period specified in the
requirement; and
(b) the time limit specified in section 68(1)
is suspended from the date a request
5 under paragraph (a) is made until the
end of the period specified in the
requirement.".
(3) After section 65(10) of the Accident
Compensation Act 1985 insert--
10 "(11) In this section--
representative of the worker means--
(a) if proceedings have not been
commenced in respect of the
worker's claim, an administrator
15 appointed in respect of the worker
under the Guardianship and
Administration Act 1986;
(b) if proceedings have commenced in
respect of the worker's claim--
20 (i) the worker's litigation
guardian; or
(ii) a person appointed by the
court to be a representative
of the worker for the
25 purposes of
subsection (4A).".
90 Opinions--amendment of section 68
(1) In section 68(2) of the Accident Compensation
Act 1985 after "opinion" insert "and a written
30 statement of reasons for that opinion".
(2) In section 68(3) of the Accident Compensation
Act 1985, for "its opinion in writing" substitute
"its written opinion and a written statement of
reasons for that opinion".
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91 New Division 3AA inserted in Part IV
After Division 3 of Part IV of the Accident
Compensation Act 1985 insert--
"Division 3AA--Employer objections
5 114H Definition
In this Division--
claimed employer means an employer that--
(a) considers that section 114I(1)(a)
or (b) applies to the employer; and
10 (b) makes a lodged objection under
section 114I;
lodged objection means an objection made
by a claimed employer and received by
the Authority under section 114I;
15 proceedings includes--
(a) the inquiry into, hearing and
determination of any question or
matter under this Act;
(b) seeking the grant of any relief or
20 remedy in the nature of certiorari,
prohibition, mandamus or quo
warranto, or the grant of a
declaration of right or an
injunction;
25 (c) seeking any order under the
Administrative Law Act 1978;
(d) any other action or proceeding.
114I Objection by employer in respect of
liability
30 (1) If the Authority, by written notice, accepts a
claim for compensation in respect of an
injury or death under this Act, the claimed
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employer may lodge an objection with the
Authority in respect of that decision to
accept the claim if the claimed employer
considers that--
5 (a) the alleged worker is not a worker
within the meaning of this Act; or
(b) the claimed employer was not the
correct employer of the worker at the
time of the injury or death.
10 (2) An objection lodged by a claimed employer
under subsection (1) must--
(a) be in writing in a form approved by the
Authority; and
(b) state the grounds on which the
15 objection is made and review by the
Authority is sought; and
(c) attach any document relevant to the
objection and review; and
(d) unless section 114J applies, be lodged
20 within 60 days of receipt by the
employer of the decision of the
Authority to accept the claim for
compensation in respect of which the
claimed employer is making the
25 objection.
(3) An objection is taken to be lodged with the
Authority when the objection is received by
the Authority.
(4) An objection made by a claimed employer
30 under this Division in respect of a claim does
not affect existing liabilities the employer
may have under this Act or the Accident
Compensation (WorkCover Insurance)
Act 1993.
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114J Objection lodged out of time
(1) The Authority may permit a claimed
employer to lodge an objection with the
Authority after the period specified in
5 section 114I(2)(d).
(2) The claimed employer seeking to lodge an
objection out of time must state, in writing,
the circumstances concerning, and the
reasons for, the failure to lodge the objection
10 within the 60 day period.
(3) The Authority may grant permission to lodge
an objection out of time unconditionally or
subject to conditions.
(4) Proceedings to seek review of a decision
15 made by the Authority under this section to
not grant permission to lodge an objection
out of time or to only grant permission to
lodge out of time subject to conditions, must
not be brought, whether against the
20 Authority or otherwise.
114K Authority may refuse to review a decision
to which a claimed employer has objected
(1) The Authority may decline to conduct a
review if--
25 (a) the lodged objection is in respect of a
decision to accept a claim for
compensation that has been reviewed
by the Authority on a prior occasion
and the claimed employer--
30 (i) has been provided with the
Authority's written reasons for the
decision following that review;
and
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(ii) has not provided the Authority
with any new, relevant
information in, or with, the lodged
objection; or
5 (b) the Authority considers that the lodged
objection is misconceived or lacking in
substance.
(2) If the Authority declines to conduct a review
of a decision under subsection (1), the
10 Authority must notify the claimed employer
of the Authority's decision, in writing, within
28 days of receiving the lodged objection.
114L Withdrawal of lodged objection
A claimed employer may, in writing,
15 withdraw a lodged objection at any time
before the Authority has made a decision
under section 114N.
114M Request for information and suspension of
review
20 (1) The Authority may suspend consideration of
a lodged objection and review if the claimed
employer fails to provide information
relevant to the review that the Authority has
requested under this Act.
25 (2) If the Authority suspends consideration of a
lodged objection and review under
subsection (1), the Authority must give the
claimed employer written notice of the
suspension which states--
30 (a) that the suspension takes effect on
service of the notice; and
(b) that the review has been suspended
pending the provision of the
information relevant to the review that
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the Authority has requested under this
Act; and
(c) the details of the requested information;
and
5 (d) that the review will remain suspended
until the earlier of--
(i) the period of suspension specified
in the notice is complete; or
(ii) the claimed employer provides the
10 Authority with the requested
information.
(3) If the claimed employer does not provide the
Authority with the information requested by
the Authority by the completion of the stated
15 period of suspension in the notice of
suspension, the claimed employer is deemed
to have withdrawn the lodged objection.
(4) If a claimed employer is deemed to have had
a lodged objection withdrawn under
20 subsection (3), the claimed employer may
again lodge an objection in respect of the
same decision that was the subject of the
deemed withdrawn lodged objection.
(5) An objection lodged under subsection (4)
25 will not be accepted by the Authority unless
the objection--
(a) is made within 28 days of the date the
lodged objection was deemed to be
withdrawn under subsection (3); and
30 (b) is accompanied by the information
specified in the notice of suspension.
(6) If the objection of a claimed employer is
deemed to be withdrawn under subsection
(3) and the claimed employer fails to lodge
35 the objection again in accordance with
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subsection (5), the decision of the Authority
to accept the claim for compensation against
the claimed employer is deemed to be
confirmed.
5 (7) Proceedings to seek review of a deemed
confirmation under subsection (6), must not
be brought, whether against the Authority or
otherwise.
114N Decision following review
10 (1) The Authority must, after reviewing an
objection lodged under section 114I--
(a) confirm the decision of the Authority to
accept the claim for compensation
against the claimed employer; or
15 (b) set aside the decision of the Authority
to accept the claim for compensation
against the claimed employer.
(2) A decision made under subsection (1)
must--
20 (a) be in writing and set out the Authority's
reasons for the decision; and
(b) be provided to the claimed employer--
(i) within 90 days of the Authority
receiving the lodged objection; or
25 (ii) more than 90 days after the
Authority receives the objection if
the Authority gives the claimed
employer written notice within
the period specified in
30 subparagraph (i) specifying--
(A) that the Authority is
extending the period to
provide the Authority's
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decision to a day specified in
the notice; and
(B) the reasons for the extension.
(3) If the Authority fails to provide the claimed
5 employer with its decision under subsection
(1) within the period set out in subsection
(2)(b) the Authority is deemed to have
confirmed the decision to accept the claim
for compensation against the claimed
10 employer.
114O Appeals
(1) Despite anything to the contrary in section
39(1), if a claimed employer--
(a) is not satisfied with the decision made
15 by the Authority under section 114N
(including a deemed decision under that
section); or
(b) has received notice that the Authority
has declined to consider the objection
20 and conduct a review under
section 114K--
the claimed employer may appeal against
that decision to the Supreme Court.
(2) An appeal under subsection (1), other than
25 an appeal in respect of a deemed decision,
must be made within 60 days of the claimed
employer receiving notice of the Authority's
decision.
(3) An appeal made in respect of a deemed
30 decision under section 114N(3) must be
made within 60 days of the decision being
deemed.
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114P Grounds of appeal
On an appeal--
(a) the claimed employer's case is limited
to the grounds of the objection under
5 section 114I; and
(b) the Authority's case is limited to the
grounds on which the Authority made a
decision under section 114N--
unless the Supreme Court otherwise orders.
10 114Q Hearing of appeal by Supreme Court
(1) On the hearing of an appeal by the Supreme
Court, the Court may--
(a) make any order the Court thinks fit;
(b) by order confirm, reduce or vary the
15 decision of the Authority under
section 114N.
(2) If the Supreme Court determines--
(a) the alleged worker is not a worker
within the meaning of this Act; or
20 (b) the claimed employer was not the
correct employer of the worker at the
time of the relevant injury or death--
payments of compensation being made to the
alleged worker must cease on the earlier of--
25 (c) 28 days after the date of the Court's
determination; or
(d) a date, after the date of the Court's
determination, determined by the
Authority.
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114R Costs of worker
If the worker is joined as a party to
proceedings commenced by the claimed
employer under section 114O, unless the
5 Court otherwise determines, the Authority is
liable for any reasonable legal costs incurred
by the worker consequent on the worker
being joined to those proceedings.".
92 New section 252M inserted
10 After section 252L of the Accident
Compensation Act 1985 insert--
"252M Supreme Court--limitation of jurisdiction
It is the intention of sections 114J and 114M
as inserted by section 91 of the Accident
15 Compensation Amendment Act 2009 to
alter or vary section 85 of the Constitution
Act 1975.".
93 Amendment of Magistrates' Court Act 1989
After section 100(2) of the Magistrates' Court
20 Act 1989 insert--
"(2A) The jurisdictional limit does not apply to any
question or matter arising out of Part IV of
the Accident Compensation Act 1985 for
which the Court has jurisdiction to
25 determine.".
__________________
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PART 10--EMPLOYER PREMIUMS
Division 1--Accident Compensation Act 1985
94 Definitions
(1) After section 5(9) of the Accident Compensation
5 Act 1985 insert--
"(9A) For the purposes of this Act, remuneration
includes an amount that is the fringe benefits
taxable amount (within the meaning of the
Fringe Benefits Tax Assessment Act 1986 of
10 the Commonwealth) in respect of benefits
provided by an employer to which
section 57, 57A or 58 of that Act applies.".
(2) For section 5(10) of the Accident Compensation
Act 1985 substitute--
15 "(10) For the purposes of this Act, remuneration
does not include--
(a) the exempt component of a motor
vehicle allowance paid or payable in
respect of a financial year, calculated in
20 accordance with section 5D;
(b) an accommodation allowance paid or
payable to a worker in respect of a
night's absence from the worker's usual
place of residence that does not exceed
25 the exempt rate, determined in
accordance with section 5E.".
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95 Section 5C substituted and new sections 5D and 5E
inserted
For section 5C of the Accident Compensation
Act 1985 substitute--
5 '5C Value of remuneration comprising fringe
benefits
For the purposes of this Act, the value of
remuneration comprising a fringe benefit is
to be determined in accordance with the
10 formula--
1
TV ×
1 - FBT rate
where--
TV is the value that would be the taxable
value of the benefit as a fringe benefit
15 for the purposes of the Fringe Benefits
Tax Assessment Act 1986 of the
Commonwealth;
FBT rate is the rate of fringe benefits tax
imposed by the Fringe Benefits Tax
20 Assessment Act 1986 of the
Commonwealth that applies when the
liability to pay premium under the
Accident Compensation (WorkCover
Insurance) Act 1993 arises.
25 5D Remuneration--motor vehicle allowance
(1) If the total motor vehicle allowance paid or
payable to a worker in respect of a financial
year--
(a) does not exceed the exempt component,
30 the motor vehicle allowance is not
remuneration for the purposes of the
Act;
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(b) exceeds the exempt component (if any),
only that amount that exceeds the
exempt component of the motor vehicle
allowance is included as remuneration
5 for the purposes of this Act.
(2) The exempt component of a motor vehicle
allowance paid or payable in respect of a
financial year is calculated in accordance
with the formula--
10 E=K×R
where--
E is the exempt component;
K is the number of business kilometres
travelled during the financial year;
15 R is the exempt rate.
(3) Unless subsection (5) applies to an employer,
the number of business kilometres travelled
during the financial year ("K") is to be
determined in accordance with one of the
20 following methods selected and used by an
employer--
(a) the continuous recording method or the
averaging method under Part 5 of
Schedule 1 to the Payroll Tax Act
25 2007;
(b) a method approved by the
Commissioner of State Revenue under
section 29(6) of the Payroll Tax Act
2007.
30 (4) The Authority may approve the use, by an
employer or class of employer, of another
method of determining the number of
business kilometres travelled during the
financial year (including the use of an
35 estimate).
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(5) If the Authority approves a method under
subsection (4)--
(a) the approved method must be published
in the Government Gazette; and
5 (b) the employer or class of employers
referred to in the approval must
determine the number of business
kilometres travelled during the financial
year in accordance with that approved
10 method.
(6) For the purposes of this section, the exempt
rate for the financial year concerned is--
(a) the rate prescribed by the regulations
under section 28-25 of the Income Tax
15 Assessment Act 1997 of the
Commonwealth for calculating a
deduction for car expenses for a large
car using the "cents per kilometre
method" in the financial year
20 immediately preceding the financial
year in which the allowance is paid or
payable; or
(b) if no rate referred to in paragraph (a) is
prescribed, the rate prescribed by the
25 regulations under section 29(7)(b) of
the Payroll Tax Act 2007.
5E Remuneration--accommodation
allowance
(1) If the accommodation allowance paid or
30 payable to a worker in respect of a night's
absence from the worker's usual place of
residence exceeds the exempt rate,
remuneration includes that allowance only
to the extent that it exceeds the exempt rate.
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(2) For the purposes of this section, the exempt
rate for the financial year concerned is--
(a) the total reasonable amount for daily
travel allowance expenses using the
5 lowest capital city for the lowest salary
band for the financial year determined
by the Commissioner of Taxation of the
Commonwealth; or
(b) if no determination referred to in
10 paragraph (a) is in force, the rate
prescribed by the regulations under
section 30(3)(b) of the Payroll Tax Act
2007.'.
96 New Division 4 inserted in Part II
15 After Division 3 of Part II of the Accident
Compensation Act 1985 insert--
"Division 4--Independent review
35 Review of setting of premium and
contributions by self-insurers
20 (1) The Minister must cause a review--
(a) on any matter relating to the setting of
premiums to be undertaken by an
independent expert body;
(b) to be conducted once every 5 years.
25 (2) The Minister may cause a review on any
matter relating to self-insurer contributions
to be undertaken by an independent expert
body.".
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97 New section 248AB inserted
After section 248A of the Accident
Compensation Act 1985 insert--
"248AB False or misleading statements
5 (1) A person must not knowingly--
(a) make a false or misleading statement in
any document prepared for, or on
behalf of, an employer; or
(b) suggest to an employer that the
10 employer make a false or misleading
statement--
that will be given to the Authority or an
authorised agent for or in relation to the
calculation or collection of premium payable
15 by the employer in accordance with the
Accident Compensation (WorkCover
Insurance) Act 1993 and the relevant
premiums order for a WorkCover insurance
policy.
20 Penalty: In the case of a natural person,
180 penalty units or imprisonment
for 6 months.
In the case of a body corporate,
900 penalty units.
25 (2) A person must not knowingly--
(a) omit from, or fail to include in a
document prepared for, or on behalf of,
an employer; or
(b) advise an employer to omit or fail to
30 include in a document--
to be given to the Authority or an authorised
agent for or in relation to the calculation or
collection of premium payable by the
employer, in accordance with the Accident
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Compensation (WorkCover Insurance)
Act 1993 and the relevant premiums order,
for a WorkCover insurance policy any
material or data or any fact or circumstance
5 that is relevant to the calculation or
collection of premium.
Penalty: In the case of a natural person,
180 penalty units or imprisonment
for 6 months.
10 In the case of a body corporate,
900 penalty units.".
98 Investigation of fraud--amendment of section 248B
In section 248B(1) of the Accident
Compensation Act 1985, after "248A" insert
15 ", 248AB(1), 248AB(2)".
99 New section 248BA inserted
After section 248B of the Accident
Compensation Act 1985 insert--
"248BA Liability of premium adviser
20 (1) If, through the negligence of a premium
adviser, an employer is liable to pay a default
penalty or late payment penalty as
determined by the Authority in accordance
with the Accident Compensation
25 (WorkCover Insurance) Act 1993, the
premium adviser is liable to pay the
employer the amount of the default penalty
or late payment penalty, and that amount
may be sued for and recovered by the
30 employer in any court of competent
jurisdiction.
(2) This section does not exonerate an employer
from the liability to pay a default penalty or
late payment penalty as determined by the
35 Authority in accordance with the Accident
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Compensation (WorkCover Insurance)
Act 1993.
(3) In this section--
premium adviser means a person who
5 provides professional advice to an
employer in respect of an employer's
liability to pay premium for a
WorkCover insurance policy and
includes a financial adviser, legal
10 practitioner and accountant.".
Division 2--Accident Compensation (WorkCover
Insurance) Act 1993
100 Definitions
In section 3(1) of the Accident Compensation See:
Act No.
15 (WorkCover Insurance) Act 1993, insert the 50/1993.
following definition-- Reprint No. 6
as at
1 July 2005
"estimated future claim cost means an estimate of and
the future cost of a claim of an employer amending
Act Nos
against whom one or more claims have been 41/2006,
20 made within the relevant claims reporting 58/2007 and
60/2007.
period as determined by the Authority in LawToday:
accordance with the relevant premiums www.
legislation.
order;". vic.gov.au
101 Compulsory WorkCover insurance--amendment of
25 section 7
(1) For section 7(1)(a) of the Accident
Compensation (WorkCover Insurance) Act
1993 substitute--
"(a) must obtain and keep in force a WorkCover
30 insurance policy with the Authority
indemnifying the employer against the
employer's liability as an employer of the
worker to pay--
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(i) any amount of compensation payable
under the Accident Compensation Act
1985, other than an amount payable
under section 125A(3) of that Act; and
5 (ii) damages to the worker or the
dependants of the worker as permitted
by and in accordance with section
134AB and section 135C of the
Accident Compensation Act 1985 and
10 to pay contribution in respect of such
damages under section 23B of the
Wrongs Act 1958--
in respect of injuries arising out of or in the
course of or due to the nature of employment
15 with that employer on or after 4 p.m. on
30 June 1993; and".
(2) In section 7(1)(b) of the Accident Compensation
(WorkCover Insurance) Act 1993, after "policy"
insert ", unless permitted to do so by the
20 Authority under subsection (1AAC)".
(3) After section 7(1) of the Accident Compensation
(WorkCover Insurance) Act 1993 insert--
"(1AAA) A policy of insurance obtained and kept in
force by an employer under subsection (1)(a)
25 does not indemnify an employer against the
employer's liability to pay damages under
sections 242AB and 242AD of the Accident
Compensation Act 1985.
(1AAB) Subsection (1AAC) applies if the Authority
30 is satisfied that--
(a) an employer is a trustee of 2 or more
trusts; and
(b) 2 or more of the trusts for which the
employer is trustee carry on separate
35 businesses; and
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(c) the employer employs workers in
relation to the businesses carried on by
the trusts; and
(d) at least one of the businesses (the
5 independent business) is carried on
independently of, and is not connected
with, the carrying on of the other
businesses.
(1AAC) If this subsection applies, the Authority may
10 permit the employer to keep--
(a) one WorkCover insurance policy in
respect of those businesses that are
connected; and
(b) an additional WorkCover insurance
15 policy in respect of the independent
business.".
(4) After section 7(3) of the Accident Compensation
(WorkCover Insurance) Act 1993 insert--
"(3A) An employer, other than an employer in
20 respect of which subsection (1A) applies,
who is required to, but fails to, comply with
subsection (1)(a) for any policy period, or
part of a policy period, is deemed to have in
force a policy of insurance under subsection
25 (1)(a) with the Authority for the purposes of
this Act during the policy period or part of
the policy period of non-compliance.
(3B) Subject to section 21A, an employer who is
deemed to have a policy of insurance under
30 subsection (3A), is liable to pay the premium
for the policy period, or the premium
calculated in accordance with subsection
(3C) for part of the policy period, in respect
of which the employer is deemed to have the
35 policy of insurance and any penalty for non-
compliance under subsection (6), specified in
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a written notice served by the Authority on
the employer.
(3C) The premium payable under subsection (3B)
in relation to part of a policy period for
5 which an employer is deemed to have in
force a policy of insurance is to be calculated
in accordance with the formula--
E
P = D×
F
where--
10 P is the portion of premium payable for
the deemed part of a policy period;
D is the amount of premium payable for
the full policy period;
E is the number of days constituting the
15 part of the policy period the employer
is deemed to have held a policy;
F is the number of days in the policy
period for which the employer is or was
required to hold a policy under
20 subsection (1)(a).
(3D) If an employer does not pay the premium
and penalty under subsection (3B) in
accordance with the written notice, the
Authority may recover under section 61 any
25 amount paid under a policy of insurance that
an employer is deemed to have been issued
under subsection (3A).".
(5) For section 7(6) of the Accident Compensation
(WorkCover Insurance) Act 1993 substitute--
30 "(6) An employer who is deemed to have in force
a policy of insurance under subsection (3A)
is liable to pay a default penalty, as set out in
a written notice of penalty served by the
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Authority on the employer, of an amount
equal to the premium payable, as set out in
the notice served by the Authority under
section 21A, in respect of the period for
5 which the employer is deemed to have had a
policy of insurance.
(6A) A default penalty under subsection (6) is due
and payable--
(a) on a date specified by the Authority in
10 the written notice of penalty; or
(b) if no date is specified in the written
notice, within 28 days of the date of the
notice of penalty.
(6B) The Authority may remit the whole or any
15 part of a default penalty imposed under
subsection (6).".
(6) In section 7(7) of the Accident Compensation
(WorkCover Insurance) Act 1993, for "any such
penalty" substitute "a default penalty under
20 subsection (6)".
(7) In section 7(7A) of the Accident Compensation
(WorkCover Insurance) Act 1993, after "liable
to pay a" insert "default".
102 WorkCover insurance policy--amendment of
25 section 9
(1) For section 9(2)(a) of the Accident
Compensation (WorkCover Insurance) Act
1993 substitute--
"(a) the Authority as well as the employer is
30 directly liable to any worker and in the event
of the worker's death, to the dependants of
the worker to pay--
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(i) any amount of compensation payable
under the Accident Compensation Act
1985 other than an amount under
section 125A(3) of that Act; and
5 (ii) damages to the worker or the worker's
dependants as permitted by and in
accordance with section 134AB and
section 135C of the Accident
Compensation Act 1985--
10 for which the employer is liable as an
employer of the worker to the worker or the
worker's dependants in respect of injuries
arising out of or in the course of or due to the
nature of employment during the period of
15 insurance and any renewal of the insurance;
and".
(2) After section 9(2) of the Accident Compensation
(WorkCover Insurance) Act 1985 insert--
"(2A) A WorkCover insurance policy does not
20 indemnify an employer against damages
under section 242AB or 242AD of the
Accident Compensation Act 1985.".
(3) Section 9(3) of the Accident Compensation
(WorkCover Insurance) Act 1985 is repealed.
25 103 Premiums order--general provisions--amendment
of section 16
In section 16(2) of the Accident Compensation
(WorkCover Insurance) Act 1993--
(a) in paragraph (e), for "thing." substitute
30 "thing;";
(b) after paragraph (e) insert--
"(f) include provisions relating to the
avoidance of premium.".
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104 New section 17A inserted
After section 17 of the Accident Compensation
(WorkCover Insurance) Act 1993 insert--
"17A Authority may serve notice of premium
5 (1) The Authority may serve on an employer a
notice of premium payable by an employer.
(2) The Authority may include a notice of
penalty in any notice of premium served on
an employer under subsection (1).".
10 105 Adjustment of premium--amendment of section 21
(1) In section 21 of the Accident Compensation
(WorkCover Insurance) Act 1993--
(a) for "issue" substitute "serve";
(b) for "to the" substitute "on the".
15 (2) At the end of section 21 of the Accident
Compensation (WorkCover Insurance) Act
1993 insert--
"(2) The Authority may include a notice of
penalty in any notice of adjusted premium
20 served on an employer under
subsection (1).".
106 New section 21A inserted
After section 21 of the Accident Compensation
(WorkCover Insurance) Act 1993 insert--
25 "21A Premium notices in respect of deemed
policy periods
(1) Subject to subsection (2), the Authority may
serve a notice of premium on an employer in
respect of a policy period, or part of a policy
30 period, for which the employer has been
deemed to hold a policy of insurance for
under section 7(3A).
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(2) A notice under this section may be in respect
of the premium for one or more of the
following policy periods or parts thereof--
(a) the latest policy period for which the
5 employer is deemed to have been
insured or a part of that policy period;
(b) up to 4 completed policy periods
immediately preceding the latest
deemed policy period;
10 (c) any completed policy period if there is,
or was, fraud on the part of the
employer or of any person acting, or
apparently acting, on the employer's
behalf.
15 (3) Despite subsection (2), the Authority may
have regard to any matter that is relevant to
the calculation of the premium under this Act
and the relevant premiums order, including
the claims history of an employer for any
20 period.".
107 Repeal of section 22 and consequential amendments
(1) Section 22 of the Accident Compensation
(WorkCover Insurance) Act 1993 is repealed.
(2) In sections 22A(6) and 22B(3) of the Accident
25 Compensation (WorkCover Insurance) Act
1993, in the definition of premium, for "22(3)"
substitute "32".
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108 New section 26A inserted
After section 26 of the Accident Compensation
(WorkCover Insurance) Act 1993 insert--
"26A Premium avoidance schemes
5 (1) The Authority may determine that the
premium payable by a relevant employer is
the amount that would have been calculated
or might reasonably be expected to have
been calculated as the employer's premium if
10 a premium avoidance scheme within the
meaning of the relevant premiums order had
not been entered into or carried out.
(2) If the Authority makes a determination under
subsection (1) it must, by notice in writing,
15 advise the relevant employer of the
determination and the default penalty
payable under subsection (3).
(3) If a relevant employer has obtained, or
would but for subsection (1) obtain, a
20 premium benefit in connection with a
premium avoidance scheme within the
meaning of the relevant premiums order, the
employer is liable to pay a default penalty
that is twice the difference between the
25 premium determined under subsection (1) to
be payable and the premium paid or payable
by the employer but for that determination.
(4) A default penalty under subsection (3) is due
and payable within 28 days of the date of the
30 notice.
(5) The Authority may remit the whole or any
part of a default penalty imposed under
subsection (3).
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(6) If a determination is made by the Authority
under subsection (1), the premium payable
by a relevant employer is the amount
specified in the determination.".
5 109 Repeal of sections 27, 28, 28A and 28B
Sections 27, 28, 28A and 28B of the Accident
Compensation (WorkCover Insurance) Act
1993 are repealed.
110 Consequential amendments
10 (1) In section 29(1) of the Accident Compensation
(WorkCover Insurance) Act 1993 for ", 28(2) or
28B(2)" substitute "or 36M(2)".
(2) In section 30 of the Accident Compensation
(WorkCover Insurance) Act 1993, for "sections
15 22, 26, 27 and 28" substitute "sections 26, 33,
36L and 36M".
111 Application of review and adjustment powers--
amendment of section 31
(1) In section 31(1) of the Accident Compensation
20 (WorkCover Insurance) Act 1993, for "28"
(wherever occurring) substitute "36M".
(2) After section 31(1) of the Accident
Compensation (WorkCover Insurance) Act
1993 insert--
25 "(1A) The Authority is entitled to recover the
amount of any increased premium resulting
from a determination made by the Authority
under section 26A if the premium relates to
the current policy period or any completed
30 policy period before that period.".
(3) In section 31(2) of the Accident Compensation
(WorkCover Insurance) Act 1993, for "sections
22, 26, 27 and 28" substitute "sections 26, 33,
36L and 36M".
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112 Section 31A substituted
For section 31A of the Accident Compensation
(WorkCover Insurance) Act 1993 substitute--
"31A Refund of premium may be offset
5 If the Authority has been paid premium in
excess of what is payable by an employer,
the Authority may--
(a) refund the excess (including any
interest) to the employer; or
10 (b) offset the excess (including any
interest) against any amount of
premium owed by the employer to the
Authority for any policy period.".
113 Default penalty where failure to provide full true
15 disclosure--amendment of section 31B
(1) In section 31B(1)(a) of the Accident
Compensation (WorkCover Insurance) Act
1993, for ", 28(2) or 28B(2)" substitute
"or 36M(2)".
20 (2) In section 31B(2) of the Accident Compensation
(WorkCover Insurance) Act 1993, for "22, 27
or 28A" substitute "33 or 36L".
114 New Part 2A inserted
After Part 2 of the Accident Compensation
25 (WorkCover Insurance) Act 1993 insert--
"PART 2A--PREMIUM REVIEW
32 Definition
In this Part--
premium includes amounts--
30 (a) paid or payable as premium;
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(b) purportedly paid or payable as
premium;
(c) paid or payable as a default
penalty in respect of an amount
5 paid or payable or purportedly
paid or payable as premium;
(d) purportedly paid or payable as a
default penalty in respect of an
amount paid or payable or
10 purportedly paid or payable as
premium;
(e) paid or payable as a late payment
penalty or interest in respect of an
amount paid or payable or
15 purportedly payable as premium,
as specified in the notice in
respect of the premium;
(f) purportedly paid or payable as a
late payment penalty or interest in
20 respect of an amount paid or
payable or purportedly payable as
premium, as specified in the
notice in respect of the premium;
proceedings includes--
25 (a) the inquiry into, hearing and
determination of any question or
matter under this Act;
(b) seeking the grant of any relief or
remedy in the nature of certiorari,
30 prohibition, mandamus or quo
warranto, or the grant of a
declaration of right or an
injunction;
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(c) seeking any order under the
Administrative Law Act 1978;
(d) any other action or proceeding.
33 Employer may apply for review of
5 premium under this Part
(1) An employer may apply to the Authority for
a review under this Part in respect of--
(a) premium as specified in a notice of
premium served under section 17A,
10 21A or 24; or
(b) premium as specified in a notice of
adjusted premium served under
section 21, 23(4), 26(4) or 36M; or
(c) premium as specified in a notice of
15 premium served under section 7(3B); or
(d) premium as specified in a notice served
under section 26A(2); or
(e) a default penalty as specified in a notice
of penalty served under--
20 (i) section 7(6) or 25(1); or
(ii) section 31B(1) insofar as it relates
to a notice of adjustment issued
under section 26(4) or 36M; or
(f) a default penalty as specified in a notice
25 served under section 26A(2); or
(g) an estimated future claim cost only on
the grounds that the estimate is
erroneous because of a coding error or
other data entry error in relation to that
30 claim.
(2) On receiving an application in respect of a
matter specified in subsection (1), the
Authority must--
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(a) review the premium, default penalty or
estimated future claim cost; or
(b) decide not to review the premium,
default penalty or estimated future
5 claim cost--
in accordance with this Part.
34 Payment of premium pending review
(1) An employer who--
(a) receives a notice specified in section
10 33(1)(a), (b), (c), (d), (e) or (f) from the
Authority specifying the employer's
liability to pay premium or a default
penalty; and
(b) applies for a review under this Part--
15 is required to pay the premium or default
penalty specified in the notice, together with
any late payment penalty or interest in
respect of the premium specified in the
notice, by the due date specified in the
20 notice, as if a review of the premium or
default penalty were not pending.
(2) If an employer fails to pay the premium
specified in the notice by the due date
specified in the notice, the employer will be
25 liable to pay a late payment penalty under
this section.
(3) A late payment penalty is calculated on the
unpaid amount of the premium from the due
date--
30 (a) at the interest rate specified in
section 25 of the Taxation
Administration Act 1997; and
(b) calculated monthly using compound
interest.
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(4) The Authority may remit the whole or any
part of a late payment penalty the employer
is liable to pay under this section.
35 Review only as permitted under this Act
5 Proceedings in respect of any question
concerning a notice of premium or purported
premium or the amount of premium payable
or purportedly payable by an employer must
not be brought, whether against the
10 Authority or otherwise except as provided in
this Part.
36 Time for lodging, and form of, application
for review
(1) An application for review made under
15 section 33(1) must--
(a) be in writing in a form approved by the
Authority; and
(b) state the grounds for review; and
(c) attach any document relevant for the
20 purposes of the review; and
(d) unless section 36A applies, be lodged
with the Authority within 60 days--
(i) after the date of service of the
notice that is the subject of the
25 application; or
(ii) in the case of an application in
respect of an estimated future
claim cost, after the Authority has
notified the employer of an
30 estimated future claim cost.
(2) An application for review is taken to have
been lodged with the Authority when it is
received by the Authority.
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36A Applications for review lodged out of time
(1) The Authority may permit an employer to
lodge an application for review after the
60 day period.
5 (2) The employer seeking to lodge an
application for review out of time must state,
in writing, the circumstances concerning, and
the reasons for, the failure to lodge the
application within the 60 day period.
10 (3) The Authority may grant permission to lodge
an application out of time unconditionally or
subject to conditions.
(4) Proceedings to seek review of a decision
made by the Authority under this section to
15 not grant permission to lodge an application
out of time or to only grant permission to
lodge out of time subject to conditions, must
not be brought, whether against the
Authority or otherwise.
20 36B Authority may decline application for
review
(1) The Authority may decline to conduct a
review under this Part if--
(a) the application made under section 33
25 is in respect of matters that have been
reviewed by the Authority on a prior
occasion and the employer--
(i) has been provided with the
Authority's written reasons for the
30 decision following that review;
and
(ii) has not provided the Authority
with any new, relevant
information in or with the
35 application for review; or
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(b) the Authority considers that the
application made under section 33 is
misconceived or lacking in substance.
(2) If the Authority declines to conduct a review
5 under subsection (1), the Authority must
notify the employer of the Authority's
decision, in writing, within 28 days of
receiving the application under section 33.
36C Withdrawal of application for review
10 An employer may, in writing, withdraw an
application for review made under this Part
at any time before the Authority has made a
determination under section 36F.
36D Time period for review
15 (1) Subject to sections 36B and 36E, the
Authority must conduct a review of an
application made in accordance with
section 36 within 90 days of receipt of the
application.
20 (2) The period specified in subsection (1) may
be extended--
(a) by agreement between the Authority
and the employer; or
(b) to allow the Authority to conduct an
25 inspection.
36E Request for information and suspension of
review
(1) The Authority may, by written notice,
request an employer to provide information
30 relevant to the review to the Authority within
the time specified in the notice.
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(2) The Authority may suspend a review if the
employer fails to provide information
relevant to the review that the Authority has
requested in a notice under subsection (1) by
5 the time specified in that notice.
(3) If the Authority suspends a review under
subsection (2), the Authority must give the
employer written notice of the suspension
(suspension notice) which states--
10 (a) that the suspension takes effect on
service of the suspension notice; and
(b) the period of the suspension; and
(c) that the review has been suspended
pending the provision of the
15 information relevant to the review that
the Authority has requested; and
(d) the details of the requested information;
and
(e) that the review will remain suspended
20 until the earlier of--
(i) the period for suspension specified
in the suspension notice is
complete; or
(ii) the employer provides the
25 Authority with the requested
information.
(4) If an employer does not provide the
Authority with information requested by the
Authority by the completion of the stated
30 period of suspension in the suspension
notice, the employer is deemed to have
withdrawn the application for review.
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(5) If an employer is deemed to have withdrawn
an application for review under subsection
(4), the employer may again apply for review
of the same matter that was the subject of the
5 deemed withdrawn application.
(6) An application made under subsection (5)
will not be accepted by the Authority unless
the application--
(a) is made within 60 days of the date the
10 application was deemed to be
withdrawn under subsection (4); and
(b) is accompanied by the information
specified in the suspension notice.
36F Determination of review
15 (1) The Authority must, after reviewing an
application under section 33--
(a) confirm the premium, default penalty or
estimated future claim cost; or
(b) adjust the premium, default penalty or
20 estimated future claim cost.
(2) Subject to subsection (3), the Authority is
only entitled to recover the amount of any
increased premium resulting from an
adjustment under subsection (1) if the
25 premium relates to one or more of the
following--
(a) the policy period current at the date of
the application for review under
section 33;
30 (b) any of the 4 completed policy periods
before that period;
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(c) any other completed policy period if
there is, or was, fraud on the part of the
employer or of any person acting, or
apparently acting, on the employer's
5 behalf.
(3) In the case of a review of a notice of
premium served under section 21A, the
Authority is only entitled to recover the
amount of any increased premium resulting
10 from an adjustment under subsection (1) if
the premium relates to one or more of the
following--
(a) the most recent policy period for which
the employer was deemed to hold a
15 policy of insurance;
(b) any of the 4 completed policy periods
before that period;
(c) any other completed policy period if
there is, or was, fraud on the part of the
20 employer or of any person acting, or
apparently acting, on the employer's
behalf.
(4) Subject to subsection (5), if the Authority
makes an adjustment under subsection (1)
25 that results in an employer recovering
premium the recovery is limited to--
(a) the policy period current at the date of
the application for review under
section 33;
30 (b) any of the 4 completed policy periods
before that period.
(5) If the Authority makes an adjustment under
subsection (1) that results in an employer
recovering premium in respect of a period
35 for which the employer was deemed to have
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a policy of insurance, the recovery is limited
to--
(a) the most recent policy period for which
the employer was deemed to hold a
5 policy of insurance;
(b) any of the 4 completed policy periods
before that period.
(6) The Authority may, in making a
determination under this section, consider
10 any relevant information.
(7) The Authority must give notice to the
employer of the determination made under
this section.
(8) The Authority must, in the notice, give the
15 employer reasons for the determination made
under this section.
36G Payments following review
(1) If the Authority confirms a premium under
section 36F, the employer must pay any
20 unpaid amount, including any late payment
penalty, within 28 days after receiving notice
of the determination under section 36F.
(2) If the Authority adjusts a premium under
section 36F, and the premium is higher than
25 the premium previously paid by the
employer, the employer is liable to pay the
Authority the difference between the
premium paid and the adjusted premium,
within 28 days after receiving notice of the
30 determination under section 36F.
(3) Subject to subsection (4), if the Authority
adjusts a premium under section 36F, and the
adjusted premium is lower than the premium
previously paid by the employer, the
35 Authority is liable to pay the employer the
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difference between the premium paid and the
adjusted premium, with interest pursuant to
section 36H, within 28 days of the notice of
determination being made under section 36F.
5 (4) If an employer owes any premium to the
Authority (other than the premium reviewed
under section 36F), the Authority may offset
some or all of the difference between the
premium paid and the adjusted premium
10 under subsection (3) against any outstanding
premium owed by the employer.
36H Interest payable under section 36L
(1) Subject to subsection (2), if it is determined,
following review under this Part or on appeal
15 made under section 36J, that the Authority is
liable to pay the employer an amount, the
Authority must pay the employer interest, at
the prescribed rate, on that amount.
(2) The Authority is not required to pay interest
20 on an amount referred to in subsection (1) if
that amount is only payable because the
employer provided information to the
Authority that--
(a) was inaccurate or incomplete;
25 (b) was revised by the employer after the
Authority served the notice of
premium.
(3) The interest must be calculated--
(a) from the date on which the premium
30 paid by the employer exceeded the
lower amount of premium the
Authority or court subsequently
determined to be payable following
review under this Part; and
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(b) to the date of that determination by the
Authority or court.
(4) In this section--
prescribed rate means the interest rate
5 specified in section 7(2) of the
Taxation (Interest on Overpayments)
Act 1986.
36I Deemed decisions of the Authority
(1) Subject to subsection (2), if the Authority
10 does not issue, within 90 days of receiving
an application by an employer under
section 33--
(a) a determination made by the Authority
under section 36F; or
15 (b) a notice under section 36B; or
(c) a notice of suspension under
section 36E--
the Authority is deemed to have made a
determination under section 36F to confirm
20 the premium, default penalty or estimated
future claim cost.
(2) If the period for review by the Authority has
been extended under section 36D(2) and at
the end of that extended period the Authority
25 does not issue a determination or notice
specified in subsection (1)(a), (b) or (c), the
Authority is deemed to have made a
determination under section 36F to confirm
the premium, default penalty or estimated
30 future claim cost.
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36J Appeals
(1) Despite anything to the contrary in section
39(1) of the Accident Compensation Act
1985, if an employer--
5 (a) is not satisfied with a determination
made by the Authority under
section 36F (including a deemed
determination under section 36I); or
(b) has received notice that the Authority
10 has decided not to conduct a review
under section 36B--
the employer may appeal against that
determination or decision to the Supreme
Court.
15 (2) An appeal under subsection (1), other than
an appeal made in respect of a deemed
determination under section 36I, must be
made within 60 days of the employer
receiving notice of the Authority's
20 determination or decision.
(3) An appeal made in respect of a deemed
determination under section 36I must be
made within 60 days of the determination
being deemed to have been made.
25 36K Hearing of appeal by Supreme Court
(1) On the hearing of an appeal by the Supreme
Court, the Court may make any order it
thinks fit and may by order confirm, reduce,
increase or vary the premium.
30 (2) The costs of an appeal are in the discretion of
the Supreme Court.
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36L Premium review by Authority at its
discretion
(1) The Authority may, in its absolute discretion,
review the amount calculated as premium in
5 respect of one or more policy periods.
(2) In conducting the review, the Authority may
have regard to any matter relevant to the
determination or calculation of the premium.
36M Adjustment of premium after review
10 (1) This section applies if, as the result of a
review of a premium under section 36L, the
Authority is of the opinion that the amount
calculated as the premium was not, or is not,
calculated in accordance with the relevant
15 premiums order.
(2) The Authority must, by notice in writing to
the employer, adjust the amount of the
premium so that the amount is the amount
calculated in accordance with the relevant
20 premiums order.
__________________".
115 Registration of section 55(2)(a) employer--
amendment of section 58
In section 58(2) of the Accident Compensation
25 (WorkCover Insurance) Act 1993, for "is to be
treated as being uninsured during the relevant
policy period" substitute "may be required to
reimburse the Authority for any compensation
paid in respect of an injured worker under the
30 Uninsured Employers and Indemnity Scheme
under section 61(1)".
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116 Groups--amendment of section 66
(1) For section 66(2), (3), (4), (5), (6) and (7) of the
Accident Compensation (WorkCover
Insurance) Act 1993 substitute--
5 "(2) If a person or set of persons has a controlling
interest in each of 2 businesses under
subsection (3), the persons who carry on
those businesses constitute a group and each
person is a member of the group.
10 Note
Subsection (8) allows the Authority to exclude
members from a group constituted under this
subsection in certain circumstances.
(3) For the purposes of subsection (2), a person
15 or set of persons, has a controlling interest in
a business if--
(a) in the case of a business carried on by a
corporation--
(i) the person or each of the set of
20 persons is a director of the
corporation and the person or set
of persons is entitled to exercise
more than 50% of the voting
power at meetings of the directors
25 of the corporation; or
(ii) a director or set of directors of the
corporation that is entitled to
exercise more than 50% of the
voting power at meetings of the
30 directors of the corporation is
under an obligation, whether
formal or informal, to act in
accordance with the direction,
instructions or wishes of that
35 person or set of persons; or
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(b) in the case of a business carried on by a
corporation that has a share capital--
that person or set of persons can,
directly or indirectly, exercise, control
5 the exercise of, or substantially
influence the exercise of, more than
50% of the voting power attached to the
voting shares, or any class of voting
shares, issued by the corporation; or
10 (c) in the case of a business carried on by a
body corporate or unincorporate--that
person or set of persons constitute more
than 50% of the board of management
(by whatever name called) of the body
15 or control the composition of the board;
or
(d) in the case of a business carried on by a
partnership--that person or set of
persons--
20 (i) own (whether beneficially or not)
more than 50% of the capital of
the partnership; or
(ii) is entitled (whether beneficially or
not) to more than 50% of the
25 profits of the partnership; or
(e) in the case of a business carried on
under a trust--the person or set of
persons (whether or not as a trustee of,
or beneficiary under, another trust) is
30 the beneficiary in respect of more than
50% of the value of the interests in the
first-mentioned trust; or
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(f) in the case of one person--the person is
the sole owner (whether or not as
trustee) of the business; or
(g) in the case of a set of persons--the
5 persons are together as trustees the sole
owners of the business.
(4) A person who may benefit from a
discretionary trust as a result of the trustee or
another person, or the trustee and another
10 person, exercising or failing to exercise a
power or discretion, is taken, for the
purposes of this Act, to be a beneficiary in
respect of more than 50% of the value of the
interests in the trust.
15 (5) If--
(a) 2 corporations are related bodies
corporate within the meaning of the
Corporations Act; and
(b) one of the corporations has a
20 controlling interest in a business--
the other corporation has a controlling
interest in the business.
(6) If--
(a) a person or set of persons has a
25 controlling interest in a business; and
(b) a person or set of persons who carry on
the business has a controlling interest in
another business--
the person or set of persons referred to in
30 paragraph (a) has a controlling interest in
that other business.
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(7) If--
(a) a person or set of persons is the
beneficiary of a trust in respect of more
than 50% of the value of the interests in
5 the trust; and
(b) the trustee of the trust (whether alone or
together with another trustee or
trustees) has a controlling interest in the
business of another trust--
10 the person or set of persons has a controlling
interest in the business.
(7A) If--
(a) a person or set of persons has a
controlling interest in the business of a
15 trust; and
(b) the trustee of the trust (whether alone or
together with another trustee or
trustees) has a controlling interest in the
business of a corporation--
20 the person or set of persons is deemed to
have a controlling interest in the business of
the corporation.
(7B) If--
(a) a person or set of person has a
25 controlling interest in the business of a
trust; and
(b) the trustee of the trust (whether alone or
together with another trustee or
trustees) has a controlling interest in the
30 business of a partnership--
the person or set of persons is deemed to
have a controlling interest in the business of
the partnership.".
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117 Joint and several liability of group members--
amendment of section 66A
After section 66A(3) of the Accident
Compensation (WorkCover Insurance) Act
5 1993 insert--
"(3A) If the Authority has been paid premium in
excess of what is payable by an employer
who is a member of a group within the
meaning of section 66, the Authority may
10 offset some or all of that excess against any
premium owed by another employer who is a
member of that group.".
118 Evidence--amendment of section 71
(1) In section 71(1)(d) of the Accident
15 Compensation (WorkCover Insurance) Act
1993, for "notice of the assessment" substitute
"notice of premium or adjusted premium".
(2) In section 71(2) of the Accident Compensation
(WorkCover Insurance) Act 1993--
20 (a) for "notice of assessment" (wherever
occurring) substitute "notice of premium or
adjusted premium";
(b) for "the assessment" (where first occurring)
substitute "an assessment";
25 (c) after "correct" insert ", except in review or
appeal proceedings (in which it is proof in
the absence of proof to the contrary)".
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119 Supreme Court--limitation of jurisdiction--
amendment of section 77
After section 77(2) of the Accident
Compensation (WorkCover Insurance) Act
5 1993 insert--
"(3) It is the intention of sections 35 and 36A(4)
as inserted by section 114 of the Accident
Compensation Amendment Act 2009 to
alter or vary section 85 of the Constitution
10 Act 1975.".
120 Consequential amendments
(1) Insert the following heading to section 57 of the
Accident Compensation (WorkCover
Insurance) Act 1993--
15 "Claims against section 55(2)(a) employers".
(2) In section 57(1) of the Accident Compensation
(WorkCover Insurance) Act 1993 omit "or who
was not the holder of a WorkCover insurance
policy at the time of the relevant injury".
__________________
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PART 11--RECOVERIES
121 Indemnity by third party--new subsection (4A)
inserted
After section 138(4) of the Accident
5 Compensation Act 1985 insert--
"(4A) A term of any contract that requires the
employer or has the effect of requiring the
employer to indemnify the third party in
respect of any liability that the third party
10 has or may have under this section is void.".
122 Indemnity by third party--new subsections (6)
to (9) inserted
After section 138(5) of the Accident
Compensation Act 1985 insert--
15 "(6) The Authority may, in its discretion, seek to
recover any indemnity that the employer is
entitled to under this section, including an
amount that represents the employer's
liability to pay compensation under section
20 125(1)(a) or 125A(3), on the employer's
behalf, if--
(a) the Authority advises the employer of
the Authority's intention to seek the
indemnity for the employer; and
25 (b) the employer gives the Authority the
employer's written consent to seek the
indemnity under this section on the
employer's behalf.
(7) If the Authority recovers an amount from a
30 third party on behalf of the employer that
includes an amount that represents the
employer's liability to pay compensation
under section 125(1)(a) or 125A(3), the
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Authority may, in its absolute discretion,
decide how that amount is to be dispersed.
(8) Any proceedings to seek review of a decision
made by the Authority under subsections (6)
5 or (7) in respect of recovery action taken on
behalf of an employer (including a decision
to not take recovery action on behalf of an
employer) must not be brought, whether
against the Authority or otherwise.
10 (9) In subsection (8), proceedings includes--
(a) the inquiry into, hearing and
determination of any question or matter
under this Act;
(b) seeking the grant of any relief or
15 remedy in the nature of certiorari,
prohibition, mandamus or quo
warranto, or the grant of a declaration
of right or an injunction;
(c) seeking any order under the
20 Administrative Law Act 1978;
(d) any other action or proceeding.".
123 New section 252I inserted
After section 252H of the Accident
Compensation Act 1985 insert--
25 "252I Supreme Court--limitation of jurisdiction
It is the intention of section 138 as amended
by section 122 of the Accident
Compensation Amendment Act 2009 to
alter or vary section 85 of the Constitution
30 Act 1975.".
__________________
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Part 12--Self-Insurance
s. 124
PART 12--SELF-INSURANCE
124 Definitions
In section 5(1) of the Accident Compensation
Act 1985, for the definition of self-insurer
5 substitute--
"self-insurer means--
(a) a body corporate approved as a self-
insurer under Part V; or
(b) a body corporate that has ceased to be a
10 self-insurer--
(i) which has elected or entered into
an arrangement with the Authority
to retain liability for its tail claims;
and
15 (ii) has not ceased to be liable for
those claims;".
125 Repeal of section 33A
Section 33A of the Accident Compensation Act
1985 is repealed.
20 126 Part V substituted
For Part V of the Accident Compensation Act
1985 substitute--
"PART V--SELF-INSURERS
Division 1--General
25 139 Definitions
In this Part--
employer includes a holding company which
does not itself employ any workers but
the subsidiaries of which do;
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holding company means--
(a) in relation to a participating
corporation--the MAV;
(b) in relation to any other body
5 corporate--the body corporate of
which the first-mentioned body
corporate is a subsidiary;
local government corporation means--
(a) a Council within the meaning of
10 the Local Government Act 1989;
(b) a regional corporation under
section 196 of the Local
Government Act 1989;
(c) an Authority within the meaning
15 of the Water Act 1989 the
members of which must include a
Councillor of a Council within the
meaning of the Local
Government Act 1989;
20 (d) any other body corporate
established or formed for local
government purposes;
MAV means the body corporate known as
the Municipal Association of Victoria
25 established under the Municipal
Association Act 1907;
participating corporation means a local
government corporation participating in
a scheme of self insurance operated by
30 the MAV;
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rateable remuneration, of an employer,
means the sum of the remuneration paid
or payable by the employer and its
subsidiaries (if any) that would be
5 rateable remuneration within the
meaning of the Accident
Compensation (WorkCover
Insurance) Act 1993 were the
employer and those subsidiaries
10 required to pay premiums under that
Act;
scheme-insured body corporate means an
employer that holds a WorkCover
insurance policy under section 7(1) of
15 the Accident Compensation
(WorkCover Insurance) Act 1993;
subsidiary means--
(a) in relation to the MAV--a
participating corporation;
20 (b) in relation to any other body
corporate--a body corporate that
is a wholly owned subsidiary of
the first-mentioned body corporate
within the meaning of the
25 Corporations Act.
Note
Under section 152(2), if a body corporate that is the
subsidiary of a self-insurer becomes a non-
WorkCover employer, for the purposes of this Part,
30 the body corporate is taken not to be a subsidiary of
the self-insurer for the period that it is a non-
WorkCover employer.
139A Student workers
Unless the contrary intention appears,
35 nothing in this Part applies in relation to the
employment of a student worker.
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139B Municipal Association of Victoria as self-
insurer
(1) If the MAV is approved as a self-insurer
under this Part, the MAV must establish a
5 local government workers compensation
self-insurance scheme for the benefit of--
(a) the MAV; and
(b) participating corporations--
on such terms and conditions, subject to this
10 Act, that the MAV determines.
(2) The MAV must keep separate accounts of
money received or expended with respect to
the operation of the self-insurance scheme
referred to in subsection (1).
15 (3) This section must be read as one with the
Municipal Association Act 1907.
Division 2--Application for approval as
self-insurer
140 Determination of eligibility to apply for
20 approval as self-insurer
(1) On the application by a body corporate, the
Authority may determine that the body
corporate is eligible to apply under
section 141(1) for approval as a self-insurer.
25 Note
A body corporate that is applying for the renewal of
approval as a self-insurer does not require a
determination from the Authority under subsection (1)
if it is a self-insurer at the time of the application.
30 See section 141(2)(b).
(2) An application referred to in subsection (1)
must be in writing and accompanied by the
fee calculated in accordance with
Schedule 4.
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(3) The Authority may only make a
determination under subsection (1) if
satisfied that the body corporate is and would
be capable of meeting its claims liabilities as
5 and when they fall due.
(4) The Authority must not make a
determination under subsection (1) if the
body corporate is the subsidiary of another
body corporate (other than a foreign
10 company within the meaning of the
Corporations Act that, when the application
is made, is not a registered foreign company
within the meaning of that Act).
(5) A determination under this section remains
15 in force for 12 months or such longer time as
the Authority, in its discretion, determines
unless, in the meantime--
(a) the Authority approves the body
corporate as a self-insurer; or
20 (b) the Authority refuses to approve the
body corporate as a self-insurer.
(6) In this section, claims liabilities means the
value as estimated by the Authority of the
existing and future financial liabilities of the
25 body corporate and its subsidiaries under this
Act or at common law, in respect of injuries
or deaths incurred or suffered, or to be
incurred or suffered, by workers employed
by the employer and its subsidiaries.
30 141 Application for approval as self-insurer
(1) Subject to subsection (2), a body corporate
that is an employer may apply in writing to
the Authority for approval as a self-insurer
for--
35 (a) workers employed by it; and
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(b) if it is a holding company, workers
employed by its subsidiaries, other than
any subsidiary that is not a non-
WorkCover employer within the
5 meaning of Part VIA.
(2) A body corporate may only make an
application under subsection (1) if--
(a) a determination by the Authority under
section 140 is in force stating that the
10 body corporate is eligible to apply for
approval as a self-insurer; or
(b) the body corporate is a self-insurer and
the application is for the renewal of
approval as self-insurer; or
15 (c) the Authority has determined that the
body corporate will imminently cease
to be a subsidiary of another body
corporate that is currently approved as a
self-insurer.
20 (3) The MAV may apply in writing to the
Authority for approval as a self-insurer for--
(a) workers employed by it; and
(b) workers employed by local government
corporations which are proposed to be
25 participating corporations.
(4) An application under this section must be
accompanied by any information required by
the Authority and the fee calculated in
accordance with Schedule 5.
30 Note
Under section 150(1), an employer may, in its
application for approval as a self-insurer, elect to
assume liability for, and responsibility for
management of, its tail claims.
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(5) In the case of an application by the MAV,
the application must also be accompanied
by--
(a) a copy of the proposed scheme of self-
5 insurance; and
(b) the name of the local government
corporations which are proposed to be
participating corporations.
(6) An application under this section remains
10 valid for a period of 12 months from the date
the application is received by the Authority
or, if the Authority determines that a longer
period should apply, that longer period.
141A Estimated rateable remuneration
15 (1) For the purposes of determining the
assessment remuneration of an employer
under clause 2 of Schedule 5, the Authority
may estimate the rateable remuneration that
an employer will pay during a specified
20 period.
(2) The Authority may request from the
employer any information required by the
Authority to make the estimate, including the
employer's own estimate of its rateable
25 remuneration.
(3) If the employer does not provide the
information requested by the Authority under
subsection (2) within 28 days of the request,
the employer is deemed to have withdrawn
30 its application for approval as a self-insurer.
141B Adjustment of application fee
(1) This section applies if an application fee paid
by an employer for approval as a self-insurer
was determined in accordance with
35 Schedule 5 on the basis of the rateable
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remuneration of the applicant as estimated
by the Authority under section 141A.
(2) At any time after the expiry of the period in
relation to which the estimate was made, the
5 Authority may request from the employer
any information required by the Authority to
determine the rateable remuneration paid or
payable by the applicant during that period.
(3) An employer must provide any information
10 requested by the Authority under subsection
(2) within 28 days of the request or within
such other period of time as the Authority
allows.
(4) An adjustment to the application fee must be
15 made in accordance with subsection (5)
or (6), as appropriate, if--
(a) the rateable remuneration varies by
10% or more from that estimated by the
Authority; and
20 (b) either--
(i) the employer has made a written
request to the Authority for an
adjustment of the fee; or
(ii) the Authority, in its discretion, has
25 decided to adjust the fee.
(5) If the fee paid is less than the amount that
would have been payable had the rateable
remuneration been used to calculate the
application fee, the difference is payable by
30 the employer to the Authority and may be
recovered by the Authority as a debt payable
to the Authority.
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(6) If the fee paid is more than the amount that
would have been payable had the rateable
remuneration been used to calculate the
application fee, the difference must be
5 reimbursed by the Authority to the employer.
Division 3--Approval as self-insurer
142 Approval as self-insurer
(1) If an application is made by a body corporate
under section 141, the Authority may
10 approve the body corporate as a self-insurer
for--
(a) workers employed by the body
corporate; and
(b) if the body corporate is a holding
15 company, workers employed by the
subsidiaries of the body corporate.
(2) If an application is made by the MAV under
section 141, the Authority may approve the
MAV as a self-insurer for--
20 (a) workers employed by the MAV; and
(b) workers employed by the local
government corporations which are
proposed to be participating
corporations and are included in the
25 application.
(3) The Authority must refuse to approve an
employer as a self-insurer if the Authority is
not satisfied that the employer is fit and
proper to be a self-insurer.
30 (4) In determining whether an employer is fit
and proper to be a self-insurer, the Authority
must have regard to the following matters--
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(a) whether the employer is, and is likely to
continue to be, able to meet its
liabilities as and when they fall due;
(b) the resources, including employees, that
5 the employer has for the purpose of
administering claims for compensation;
(c) the incidence of injuries to workers,
including student workers, arising out
of and in the course of employment by
10 the employer and, if applicable, its
subsidiaries and the cost of claims in
respect of such injuries;
(d) the safety of the working conditions for
workers, including student workers,
15 employed by the employer, and, if
applicable, by its subsidiaries;
(e) if the application is for renewal of
approval as a self-insurer by an
employer that is or has at any time been
20 a self-insurer for the purposes of this
Part, whether the employer has at any
time failed to comply with--
(i) this Act or the regulations; or
(ii) any terms or conditions of its
25 approval as a self-insurer; or
(iii) a Ministerial Order; or
(iv) any other subordinate instrument
made under this Act or the
regulations;
30 (f) such other matters as the Authority
thinks fit.
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142A Terms and conditions of approval
(1) An approval of an employer as a self-
insurer--
(a) is subject to--
5 (i) the terms and conditions specified
in a Ministerial Order made under
subsection (3); and
(ii) the terms and conditions
determined by the Authority from
10 time to time; and
(b) may be subject to compliance with a
condition precedent determined by the
Authority; and
(c) may be subject to a term or condition
15 which relates to the applicant before the
applicant becomes a self-insurer.
(2) In addition, in the case of an employer other
than the MAV, the approval of the employer
as a self-insurer is subject to a deemed
20 condition that the employer is under a
contractual obligation that if it becomes a
non-WorkCover employer within the
meaning of Part VIA it will make any
payments in respect of tail claims liabilities
25 required to be made in accordance with that
Part.
(3) The Minister may, by notice published in the
Government Gazette, make a Ministerial
Order setting out the terms and conditions to
30 which the approval of an employer as a self-
insurer is subject.
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(4) Without limiting subsection (3), the
Ministerial Order must specify the
following--
(a) the surcharge to be applied under
5 section 146(5);
(b) the information to be included in a
return required to be submitted under
section 146A;
(c) the requirements of the contract of
10 insurance a self-insurer must have in
respect of the self-insurer's contingent
liabilities.
143 Notice to be given to employer if
application refused
15 (1) The Authority must not refuse to approve an
employer as a self-insurer unless the
Authority has given not less than 28 days
notice in writing to the employer stating--
(a) the Authority's intention to refuse
20 approval; and
(b) the reasons for the intended refusal; and
(c) that the employer may, within 28 days
after receiving the notice, make a
submission in writing to the Authority
25 in further support of the application.
(2) If, within the time allowed under subsection
(1)(c), the Authority receives a written
submission from the employer in further
support of the application, the Authority
30 must--
(a) consider the submission before
deciding whether or not to refuse to
approve the employer as a self-insurer;
and
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(b) give notice in writing to the employer
of its decision.
144 Period that approval has effect
(1) An approval of an employer as a self-insurer
5 takes effect from the date determined by the
Authority and notified in writing to the
employer.
(2) Unless revoked sooner, the approval of an
employer as a self-insurer has effect for--
10 (a) in the case of an employer that is not a
self-insurer immediately before the date
the approval takes effect, a period of
3 years.
(b) in the case of an employer that is a self-
15 insurer immediately before the approval
takes effect, a period of 4 years, unless
the Authority in its discretion
determines that the approval has effect
for a period of 6 years.
20 (3) If an employer that is approved as a self-
insurer is undergoing a corporate restructure,
the Authority in its discretion may extend the
term of approval for a further period not
exceeding 6 months.
25 (4) If an employer that is approved as a self-
insurer becomes the subsidiary of another
body corporate, the Authority in its
discretion may continue the term of approval
until such date as is determined by the
30 Authority but not later than 6 months after
the date on which the approval of the
employer as a self-insurer would otherwise
cease.
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145 Review of approval
(1) The Authority, at any time, may review the
approval of an employer as a self-insurer.
(2) Without limiting subsection (1), the
5 Authority may review the approval of an
employer as a self-insurer if--
(a) the employer is a holding company
approved as a self-insurer under this
Part for workers employed by its
10 subsidiaries and it ceases to be the
holding company in relation to any of
those subsidiaries; or
(b) the employer is approved as a self-
insurer for workers employed by a
15 subsidiary of the employer and that
subsidiary ceases to be a subsidiary of
the employer; or
(c) a subsidiary of the employer--
(i) becomes a non-WorkCover
20 employer within the meaning of
Part VIA; or
(ii) ceases to be a non-WorkCover
employer within the meaning of
Part VIA; or
25 (iii) is partly acquired by another
company; or
(d) the employer acquires a subsidiary; or
(e) the employer undergoes a corporate
re-structure; or
30 (f) the employer acquires the assets or the
employees of another company but not
the company itself.
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(3) The Authority must review the approval of
an employer as a self-insurer if--
(a) the Authority is of the opinion that the
employer is no longer capable of
5 meeting its claim liabilities as and when
they fall due; or
(b) the employer becomes the subsidiary of
another body corporate (other than a
foreign company within the meaning of
10 the Corporations Act that is not a
registered foreign company within the
meaning of that Act); or
(c) having regard to the matters specified
in section 142(4), the Authority is no
15 longer satisfied that the employer is fit
and proper to be a self-insurer.
(4) The Authority must review the approval of
an employer as a self-insurer if--
(a) the employer is under official
20 management, is commenced to be
wound up or has ceased to carry on
business; or
(b) a receiver or receiver and manager is
appointed in respect of the property or
25 part of the property of the employer
under the Corporations Act; or
(c) the employer enters into a compromise
or scheme of arrangement with its
creditors; or
30 (d) the employer is a target within the
meaning of the Corporations Act.
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(5) If any of the circumstances referred to in
subsection (2), (3)(b) or (4) occur in relation
to a self-insurer, or a subsidiary of a self-
insurer, the self-insurer must notify the
5 Authority in writing within 28 days of the
occurrence of the circumstances.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
10 300 penalty units.
145A Revocation of approval
(1) The Authority, in accordance with this
section, may revoke the approval of an
employer as a self-insurer if--
15 (a) the Authority is of the opinion that the
employer is no longer capable of
meeting its claims liabilities as and
when they fall due; or
(b) the employer becomes the subsidiary of
20 another body corporate (other than a
foreign company within the meaning of
the Corporations Act that is not a
registered foreign company within the
meaning of that Act); or
25 (c) having regard to the matters specified
in section 142(4), the Authority is not
satisfied that the employer is fit and
proper to be a self-insurer; or
(d) the employer by notice in writing given
30 to the Authority, requests that the
approval be revoked; or
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(e) the employer has failed to comply
with--
(i) this Act or the regulations; or
(ii) any terms or conditions of its
5 approval as a self-insurer; or
(iii) a Ministerial Order; or
(iv) any other subordinate instrument
made under this Act or the
regulations.
10 (2) The Authority, in accordance with this
section, may revoke the approval of an
employer as a self-insurer if, on the basis of
a review conducted under section 145, the
Authority is of the opinion that the approval
15 should be revoked.
(3) The Authority must not revoke the approval
of an employer as a self-insurer unless the
Authority has given not less than 28 days
notice in writing to the employer stating--
20 (a) the Authority's intention to revoke the
approval; and
(b) the reasons for the intended revocation;
and
(c) that the employer may, within 28 days
25 after receiving the notice, make a
written submission to the Authority.
(4) If the approval of the employer is revoked at
the request of the employer--
(a) subsection (3) does not apply; and
30 (b) the Authority may give the employer a
written notice of revocation at any time
after receiving the request.
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(5) If, within the time allowed under
subsection (3)(c), the Authority receives a
written submission from the employer, the
Authority must consider the submission
5 before deciding whether or not to revoke the
approval of the employer as a self-insurer.
(6) If, after the expiry of the 28 days notice and
after considering any submission from the
employer, the Authority decides to revoke
10 the approval of the employer as a self-
insurer, the Authority must give the
employer a written notice of revocation.
(7) The revocation of an approval of an
employer as a self-insurer takes effect
15 immediately after the day on which the
notice of the revocation is given to the
employer.
145B Cost associated with revocation
recoverable from employer
20 (1) If the Authority revokes the approval of an
employer as a self-insurer under
section 145A, any costs incurred by the
Authority in relation to the revocation are
recoverable from the employer as a debt due
25 to the Authority.
(2) Without limiting subsection (1), the costs
incurred in relation to the revocation of the
approval of an employer as a self-insurer
include the cost of any actuarial services
30 used to determine the outstanding liabilities
of the employer at the time of revocation.
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145C Non-WorkCover employer ceases to be a
self-insurer
If an employer becomes a non-WorkCover
employer, the approval of the employer as a
5 self-insurer is revoked as from the exit date
within the meaning of section 164.
Division 4--Contributions to WorkCover
Authority Fund
146 Payment of contribution
10 (1) A self-insurer must pay contributions into
the WorkCover Authority Fund in
accordance with this section.
(2) The Authority may, in accordance with the
regulations, determine the amount of
15 contributions payable by a self-insurer
having regard to the rateable remuneration
paid or payable during the financial year and
preceding financial year in respect of that
year and preceding year or any quarter of
20 that year or preceding year by the self-
insurer.
(3) Subject to subsection (4), a contribution by a
self-insurer as determined by the Authority
under subsection (2) is due on each of the
25 following dates in each year--
(a) 1 August;
(b) 1 November;
(c) 1 February;
(d) 1 May.
30 (4) The Authority may vary the date on which a
contribution by a self-insurer is due.
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(5) If a contribution is not paid within 14 days of
the due date, the amount of the contribution,
together with interest at the prescribed rate
and the surcharge specified in a Ministerial
5 Order in force under section 142A(3), may
be recovered as a debt due to the Authority.
(6) Contributions made by a self-insurer to the
WorkCover Authority Fund must be applied
towards the costs referred to in section
10 32(4)(d), (e), (f), (fa) or (i) or towards the
costs incurred by the Authority in the
administration of Division 2 of Part III or in
meeting any liability incurred under
section 151.
15 146A Submission of return by self-insurer
(1) Each self-insurer must submit a return in
accordance with the Ministerial Order under
section 142A(3) to enable the Authority to
determine the amount of contributions
20 payable.
(2) A self-insurer must submit the return by the
date specified in the Ministerial Order.
Penalty: 1 penalty unit for each day the
offender is in default.
25 (3) A self-insurer must not submit a return
which contains any false material particulars.
Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
30 600 penalty units.
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Division 5--Liability for claims for
compensation
Subdivision 1--Liability of self-insurer
147 Self-insurer's liability to pay
5 compensation
If--
(a) a worker, the dependants of a worker or
the members of a worker's family are
entitled to compensation or any other
10 payments, whether under this Act or at
common law, in respect of an injury or
death incurred or suffered by the
worker; and
(b) at the time of the injury or death, the
15 worker's employer was a self-insurer or
the subsidiary of a self-insurer--
the self-insurer is, subject to section 151,
liable to pay the compensation or other
payments.
20 147A Claims management
(1) A self-insurer may appoint a person
approved by the Authority to act as the self-
insurer's agent in relation to the carrying out
of the functions and powers of the self-
25 insurer under Parts III and IV.
(2) If a self-insurer has appointed the Transport
Accident Commission as its agent and a right
of recovery arises under section 137(5B) in
respect of an injury or death, the
30 arrangement with the Transport Accident
Commission in respect of the administration
of claims for compensation for that injury or
death is deemed to be irrevocable.
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(3) Nothing in this section or any arrangement
entered into under this section affects the
liability of a self-insurer under this Act.
148 Liabilities of self-insurer to be guaranteed
5 (1) On and from the date that an employer's
approval as a self-insurer takes effect and
until such time as the Authority assumes
liability for the tail claims of the employer
under section 151D, the employer must--
10 (a) ensure that there is in force at all times
a guarantee in respect of liabilities
incurred by the Authority by reason of
the failure of the employer to meet its
liabilities under this Act or by reason
15 that the employer has ceased to be an
approved self-insurer; and
(b) have in force at all times a contract of
insurance in respect of its contingent
liabilities in accordance with the
20 Ministerial Order made under section
142A(3) and no other contract of
insurance in respect of those liabilities.
(2) A guarantee referred to in subsection (1)(a),
must--
25 (a) be given by an ADI to or in favour of
the Authority; and
(b) be in a form approved by the Authority;
and
(c) guarantee payment of amounts not less
30 than--
(i) one and one-half times the
assessed liability of the employer;
or
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(ii) $3 000 000--
whichever is the greater.
(3) For the purposes of subsection (2)(c)(i), the
assessed liability of an employer means--
5 (a) the sum of the actuarial value of the
current, non-current and contingent
liabilities of the employer in respect of
injuries and deaths for which the
employer is liable under section 147 to
10 pay compensation or make other
payments; and
(b) the following amount--
(i) the sum of the actuarial value of
the current, non-current and
15 contingent liabilities of the
employer for claims expected to
arise in the 12 months after the
assessment in respect of injuries
and deaths for which the employer
20 would be liable under section 147
to pay compensation or make
other payments; less
(ii) the total amount expected to be
paid by the employer and its
25 subsidiaries in the 12 months after
the assessment.
Note
In the event that the amount referred to in
subparagraph (ii) exceeds the amount referred
30 to in subparagraph (i), the amount referred to in
paragraph (b) is $0.
(4) For the purposes of subsection (3), an
assessment of the liabilities of the employer
must be carried out by an actuary approved
35 by the Authority in accordance with
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guidelines approved by the Authority at
intervals of not more than one year.
(5) For the purposes of an assessment under
subsection (4), the employer must--
5 (a) make provision in its accounts for
current, non-current and contingent
liabilities in respect of injuries or deaths
referred to in subsection (3)(a); and
(b) permit an actuary appointed by the
10 Authority to inspect the books of the
employer.
149 Payments by Authority
(1) This section applies if a Conciliation Officer,
the Tribunal, the Magistrates' Court or the
15 County Court has directed or determined that
compensation whether under this Act or at
common law must be paid in relation to an
injury or death for which a self-insurer is
liable.
20 (2) For the purposes of subsection (1),
compensation does not include an amount
required to be paid under sections 242AB
or 242AD.
(3) If the self-insurer does not pay the
25 compensation within 28 days after the
direction has been given or the determination
has been made, the Authority--
(a) must assume the liability; and
(b) is entitled to recover from the self-
30 insurer the amount paid by the
Authority in discharge of the liability
together with interest at the prescribed
rate.
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Subdivision 2--Election by self-insurer to
assume liability for tail claims
150 Movement from scheme insurance to self-
insurance
5 (1) When applying for approval as a self-insurer
under section 141, an employer may elect to
assume the liability for, and the
responsibility for management of, its tail
claims.
10 (2) If an employer that has been approved as a
self-insurer has made an election under
subsection (1), the employer must provide to
the Authority, on the date the approval takes
effect, a guarantee in accordance with
15 section 150B in respect of its tail claims.
(3) On the provision of a guarantee in
accordance with subsection (2), the self-
insurer assumes liability for, and
responsibility for management of, the tail
20 claims.
Note
If a self-insurer assumes liability for the tail claims,
the self-insurer may exercise its powers and functions
under Parts III and IV in relation to the injury or death
25 to which a tail claim relates as if the injury or death
were one to which section 147 applies.
(4) If an employer that has been approved as a
self-insurer has not made an election under
subsection (1), the Authority retains the
30 liability for, and the responsibility for
management of, the tail claims of the
employer.
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(5) In this section, tail claim, of an employer,
means a claim, regardless of when made, in
respect of an injury or death--
(a) incurred or suffered by a worker
5 employed by the employer or its
subsidiaries (if any) before the date the
approval of the employer as a self-
insurer takes effect under section
144(1); and
10 (b) which entitles that worker, the
dependants of that worker or the
members of that worker's family to
compensation or any other payments,
whether under this Act or at common
15 law.
150A Acquisition of scheme-insured body
corporate by self-insurer
(1) This section applies if a self-insurer wholly
acquires a scheme-insured body corporate.
20 (2) Within 28 days after the acquisition of the
body corporate, the self-insurer must notify
the Authority in writing of the acquisition.
(3) A notification under subsection (2) must
state whether or not the self-insurer elects to
25 assume the liability for, and the
responsibility for management of, the tail
claims of the body corporate.
(4) If the self-insurer has made an election under
subsection (3), the self-insurer must provide
30 to the Authority on the transfer date a
guarantee in accordance with section 150B
in respect of the tail claims of the body
corporate.
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(5) On the provision of a guarantee in
accordance with subsection (4), the self-
insurer assumes liability for, and
responsibility for management of, the tail
5 claims.
Note
If a self-insurer assumes liability for the tail claims,
the self-insurer may exercise its powers and functions
under Parts III and IV in relation to the injury or death
10 to which a tail claim relates as if the injury or death
were one to which section 147 applies.
(6) If the self-insurer has not made an election
under subsection (3), the Authority retains
the liability for, and the responsibility for
15 management of, the tail claims of the body
corporate.
(7) In this section--
tail claim, of a body corporate acquired by a
self-insurer, means a claim, regardless
20 of when made, in respect of an injury or
death--
(a) incurred or suffered by a worker
employed by the body corporate
before the date the body corporate
25 is acquired by the self-insurer; and
(b) which entitles that worker, the
dependants of that worker or the
members of that worker's family
to compensation or any other
30 payments, whether under this Act
or at common law;
transfer date means the date agreed to by the
Authority and the self-insurer as the
date on which liability for, and
35 responsibility of managing, the tail
claims of the body corporate are to be
assumed by the self-insurer.
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150B Guarantee of liability for tail claims
(1) This section applies if an employer that is
approved as a self insurer--
(a) has elected under section 150(1) to
5 assume liability for its tail claims; or
(b) has elected under section 150A(3) to
assume liability for the tail claims of a
scheme-insured body corporate
acquired by the employer.
10 (2) On and from the date the employer assumes
liability for the tail claims and until such
time as the Authority assumes liability for
the tail claims of the employer under
section 151D, the employer must ensure that
15 there is in force at all times a guarantee in
respect of liabilities relating to the tail claims
incurred by the Authority by reason of the
failure of the employer to meet its liabilities
in respect of those claims or by reason that
20 the employer has ceased to be an approved
self-insurer.
(3) For the purposes of subsection (2), the
guarantee that must be provided to the
Authority is a guarantee that--
25 (a) is given by an ADI to or in favour of
the Authority; and
(b) is in a form approved by the Authority;
and
(c) guarantees payment of an amount not
30 less than one and one-half times the
amount of the assessed tail claim
liability of the employer or the body
corporate, as the case may be.
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(4) For the purposes of subsection (3)(c), the
assessed tail claim liability of an employer or
a body corporate is the actuarial value of the
current, non-current and contingent liabilities
5 of the employer or the body corporate in
respect of tail claims under this Act.
(5) For the purposes of subsection (4), an
assessment of the tail claim liability of the
employer or body corporate must be carried
10 out by an actuary approved by the Authority
in accordance with guidelines approved by
the Authority at intervals of not more than
one year.
(6) For the purposes of an assessment under
15 subsection (5), the employer must--
(a) make provision in its accounts for
current, non-current and contingent tail
claim liabilities; and
(b) permit an actuary appointed by the
20 Authority to inspect the books of the
employer.
150C Payment of settlement amount and other
arrangements on assumption of liability
for tail claims
25 (1) The Minister may, by notice published in the
Government Gazette, make a Ministerial
Order regarding the arrangements that apply
in relation to--
(a) the assumption of liability by a self-
30 insurer under section 150(3) for the tail
claims of the self-insurer; and
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(b) the assumption of liability by a self-
insurer under section 150A(5) for the
tail claims of a scheme-insured body
corporate acquired by the self-insurer.
5 (2) Without limiting subsection (1), the
Ministerial Order may specify--
(a) the method of calculating the settlement
amount that must be paid by the
Authority to the self-insurer; and
10 (b) the manner in which the settlement
amount is to be paid.
(3) The Authority must make payment to the
self-insurer of a settlement amount in
accordance with the Ministerial Order.
15 150D Subsequent divestment of scheme-insured
body corporate
(1) This section applies if--
(a) under section 150A an employer that is
approved as a self-insurer has assumed
20 liability for, and the responsibility for
management of, the tail claims of a
scheme-insured body corporate
acquired by the employer; and
(b) the employer subsequently divests,
25 wholly or in part, the body corporate.
(2) The employer must retain liability for, and
the responsibility for management of, the tail
claims of the body corporate until such time
as the employer ceases to be self-insured.
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Subdivision 3--Employer or subsidiary of
employer ceases to be self-insurer
151 Employer ceases to be self-insurer
(1) This section applies if--
5 (a) an employer ceases to be a self-insurer;
or
(b) in the case of an employer that elected
to retain liability under section 151(1)
as in force before the commencement
10 of section 3 of the Accident
Compensation Amendment Act 2007,
the Authority, by notice published in
the Government Gazette, has declared
that the employer has ceased to be
15 liable for the tail claims of the
employer.
(2) Unless otherwise allowed by the Authority,
on and from the exit date--
(a) the Authority assumes the liability for,
20 and the responsibility for management
of, the tail claims of the employer; and
(b) a person who, but for this section,
would have been required by this Act to
lodge a claim for compensation with
25 the employer as a self-insurer, may
lodge the claim with the Authority; and
(c) Part IV applies to the Authority as if it
were a self-insurer and, in relation to
any proceedings to which the employer
30 was a party as a self-insurer
immediately before the Authority
assumed the liability of the employer,
as if the Authority were that party.
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(3) Unless otherwise allowed by the Authority,
the employer must give to the Authority all
claims and other relevant documents relating
to the tail claims that are in the possession of
5 the employer no later than 28 days after the
exit date.
Penalty: 500 penalty units.
(4) In this section--
exit date means--
10 (a) in the case of an employer to
which subsection (1)(a) applies,
the date on which the employer
ceases to be a self-insurer; or
(b) in the case of an employer to
15 which subsection (1)(b) applies,
the date the declaration by the
Authority is published in the
Government Gazette;
tail claim, of an employer that ceases to be a
20 self-insurer, means--
(a) a claim, regardless of when made,
in respect of an injury or death--
(i) incurred or suffered by a
worker employed by the
25 employer or a subsidiary of
the employer while the
employer was a self-insurer;
and
(ii) which entitles that worker,
30 the dependants of that
worker or members of that
worker's family to
compensation or any other
payments, whether under this
35 Act or at common law; or
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(b) a claim for which the employer
assumed liability under section
150(3) or 150A(5); or
(c) a claim for which the employer
5 assumed liability by agreement
with the Authority before the
commencement of section 126 of
the Accident Compensation
Amendment Act 2009.
10 151A General provisions applying to assessment
by an actuary
(1) This section applies to any assessment of the
tail claim liabilities of an employer
conducted by an actuary under section 151B
15 or 151C.
(2) The actuary must provide the employer with
a copy of the proposed assessment.
(3) The employer may provide comments to the
actuary within 28 days of receiving a copy of
20 the proposed assessment or within any
further period as may be agreed between the
Authority and the employer.
(4) Before finalising the assessment, the actuary
must consider any comments received under
25 subsection (3).
(5) The employer must pay the cost of
conducting the assessment and any money
owed to the actuary by the Authority in
relation to the assessment.
30 (6) If the Authority pays the cost of conducting
the assessment or other money owed to the
actuary in relation to the assessment, the
amount paid by the Authority together with
interest at the prescribed rate is a debt of the
35 employer due to the Authority.
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151B Initial assessment of liability for tail
claims
(1) This section applies if, under section 151, the
Authority assumes the liability for the tail
5 claims of an employer that has ceased to be a
self-insurer.
(2) Within 28 days after the Authority has
assumed liability for the tail claims, the
amount of the tail claims liabilities of the
10 employer must be assessed by an actuary
appointed by the Authority.
(3) If the employer fails to permit the actuary to
inspect the books of the employer to enable
that assessment to be made, the liability for
15 the tail claims of the employer is the amount
determined by the Authority.
(4) The Authority must give notice in writing to
the employer stating the amount of the tail
claim liabilities assessed under subsection
20 (2) or determined under subsection (3), as
the case may be.
(5) The amount of the tail claim liabilities
assessed under subsection (2) or determined
under subsection (3) is a debt due to the
25 Authority by the employer and is payable by
the employer within 28 days of receiving
notice of the assessment or determination
from the Authority or within such longer
period as may be agreed between the
30 Authority and the employer.
(6) If the employer fails to pay the amount due
under subsection (5) within the period
referred to in that subsection, the Authority
may recover that amount under the guarantee
35 provided under section 148 or under
section 150B.
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(7) In this section, the tail claims liabilities of an
employer means the sum of the actuarial
value of the current, non-current and
contingent liabilities immediately before the
5 exit date of the employer in respect of tail
claims under this Act.
151C Annual assessment of tail claims liabilities
and adjustment of payments
(1) The Authority must ensure that an actuary
10 appointed by the Authority undertakes an
assessment of the tail claims liabilities of an
employer assumed by the Authority under
section 151 as at the end of each year during
the liability period.
15 (2) The Authority must give notice in writing to
the employer stating the amount of liability
assessed under subsection (1).
(3) If the revised assessment of the tail claims
liabilities as at the end of the third year of the
20 liability period exceeds the initial assessment
of the tail claims liabilities, the employer
must pay the difference to the Authority.
(4) If the revised assessment of the tail claims
liabilities as at the end of the third year of the
25 liability period is less than the initial
assessment of the tail claims liabilities, the
Authority must pay the difference to the
employer.
(5) If the revised assessment of the tail claims
30 liabilities as at the end of the sixth year of
the liability period exceeds the revised
assessment of the tail claims liabilities as
assessed at the end of the third year of the
liability period, the employer must pay the
35 difference to the Authority.
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(6) If the revised assessment of the tail claims
liabilities as at the end of the sixth year of
the liability period is less than the revised
assessment of the tail claims liabilities as
5 assessed at the end of the third year of the
liability period, the Authority must pay the
difference to the employer.
(7) If the employer is required under subsection
(3) or (5) to pay an amount as a result of a
10 revised assessment, the employer must pay
the amount within 28 days of receiving
notice of the revised assessment from the
Authority or within any further period as
may be agreed between the Authority and the
15 employer.
(8) If the amount is not paid to the Authority in
accordance with subsection (7), the amount
together with interest at the prescribed rate is
a debt due to the Authority.
20 (9) In this section, liability period means the
period of 6 years commencing from the exit
date as defined in section 151.
151D Provision of guarantees
(1) This section applies if, under section 151, the
25 Authority assumes the liability for the tail
claims of an employer that has ceased to be a
self-insurer.
(2) The employer must ensure that on or before
the date the Authority assumes liability for
30 the tail claims of the employer there is in
force, until the final assessment date, a
guarantee--
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(a) against insolvency risk in respect of
50 percent of--
(i) in relation to the first year of the
liability period, the initial
5 assessment of tail claims liabilities
until the end of the first year after
the exit date;
(ii) in relation to the second and
subsequent years of the liability
10 period, the revised amount of the
tail claims liabilities still
outstanding as assessed at the end
of each subsequent year for the
duration of the next year until the
15 final assessment date; and
(b) against claims deterioration--
(i) in relation to the period from the
exit date until the interim
assessment date, for the amount, if
20 any, by which the revised
assessment of tail claims liabilities
at the end of each year exceeds the
initial assessment of tail claims
liabilities;
25 (ii) in relation to the period from the
end of the period referred to in
subparagraph (i) until the final
assessment date or, if a review is
conducted under section 151E,
30 until the date on which the review
is finalised, for the amount, if any,
by which the revised assessment
of tail claims liabilities at the end
of each year exceeds the revised
35 assessment of tail claims liabilities
as assessed at the end of the third
year.
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(3) An employer who contravenes subsection (2)
is liable to a penalty of 600 penalty units
and, in the case of a continuing offence,
300 penalty units for each day the
5 contravention continues after the date the
Authority assumes liability for the tail claims
of the employer.
(3A) If, by virtue of section 250A(1), a natural
person commits an offence under subsection
10 (3), that person is liable to a penalty of
120 penalty units.
(4) The guarantee referred to in subsection (2)
must--
(a) be given by an ADI to or in favour of
15 the Authority; and
(b) be in a form approved by the Authority.
(5) If the employer receives a notice of
assessment of tail claims liabilities
conducted under section 151C, the employer
20 may, with the approval of the Authority,
provide a new guarantee in a form approved
by the Authority in lieu of a guarantee in
force under subsection (2), to continue in
force until the final assessment date.
25 (6) The Authority may recover under a
guarantee under this section any loss
suffered by the Authority if--
(a) the employer fails to make a payment
required under section 151C(3)
30 or 151C(5); or
(b) any of the following occurs--
(i) the employer is under official
management, is commenced to be
wound up or has ceased to carry
35 on business;
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(ii) a receiver or receiver and manager
is appointed in respect of the
property or part of the property of
the employer under the
5 Corporations Law or the
corresponding law of another
State or Territory;
(iii) the employer enters into a
compromise or scheme of
10 arrangement with its creditors.
(7) For the purpose of any proceeding
commenced by the Authority to recover
under a guarantee under this section, a
certificate purporting to be signed by an
15 officer or employee of the Authority
certifying that--
(a) an event referred to in subsection (6)(a)
or (6)(b) and specified in the certificate
has occurred; and
20 (b) the Authority has suffered a loss of the
amount specified in the certificate as a
result of that event occurring--
is evidence of the matters stated in the
certificate and, in the absence of evidence to
25 the contrary, is proof of those matters.
(8) This section as inserted by section 126 of the
Accident Compensation Amendment Act
2009 applies to an employer that has ceased
to be a self-insurer irrespective of whether
30 the employer ceased to be a self-insurer
before, on or after the commencement of
section 126 of the Accident Compensation
Amendment Act 2009.
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(9) In this section--
final assessment date means--
(a) if a payment is required under
section 151C(5), the date the
5 payment is made; or
(b) if no payment is required, the date
which is 28 days after the notice
of revised assessment is received
under section 151C in relation to
10 the assessment carried out in the
sixth year of the liability period;
interim assessment date means--
(a) if a payment is required under
section 151C(3), the date the
15 payment is made; or
(b) if no payment is required, the date
which is 28 days after the notice
of revised assessment is received
under section 151C in relation to
20 the assessment carried out in the
third year of the liability period.
151E Review of final revised assessment at the
end of the liability period
(1) If an employer disputes the final revised
25 assessment made under section 151C as at
the end of the liability period, the employer
may appoint an actuary to review the final
revised assessment.
(2) The employer must pay the cost of
30 conducting the review.
(3) The actuary appointed by the employer must
provide comments to the actuary who made
the final revised assessment within 28 days
of the employer receiving a copy of the final
35 revised assessment.
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(4) If the actuary appointed by the employer and
the actuary who made the final revised
assessment are unable to reach agreement,
the employer and the Authority may agree--
5 (a) to jointly appoint another actuary to
review the final revised assessment;
and
(b) to be bound by the decision of that
actuary.
10 (5) The costs of a review conducted under
subsection (4) are to be borne equally by the
employer and the Authority.
(6) If--
(a) the actuary appointed by the employer
15 and the actuary who made the final
revised assessment were unable to
reach agreement; and
(b) the employer and the Authority do not
enter into an agreement under
20 subsection (4) within 28 days after the
period referred to in subsection (3)--
the final revised assessment under
section 151C is by virtue of this subsection
binding on the employer and the Authority.
25 152 Subsidiary of self-insurer becomes a non-
WorkCover employer
(1) This section applies if an employer that is the
subsidiary of a self-insurer becomes a non-
WorkCover employer within the meaning of
30 Part VIA.
(2) For the purposes of this Part, the employer is
taken not to be a subsidiary of the self-
insurer for the period that it is a non-
WorkCover employer.
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(3) The Authority must in a review on the
ground specified in section 145(2)(c)(i)
determine whether--
(a) the employer should retain; or
5 (b) the Authority should assume--
the liability for, and the responsibility for
management of, the tail claims of the
employer.
(4) If the Authority assumes the liability for the
10 tail claims of an employer under
subsection (3)--
(a) Part VIA applies in respect of that
liability; and
(b) a person who, but for this section,
15 would have been required by this Act to
lodge a claim for compensation with
the employer as a self-insurer, may
lodge the claim with the Authority; and
(c) Part IV applies to the Authority as if it
20 were a self-insurer and, in relation to
any proceedings to which the employer
was a party as a self-insurer
immediately before the Authority
assumed the liability of the employer,
25 as if the Authority were that party.
(5) Within 28 days after the Authority assumes
the liability for the tail claims of an employer
under subsection (3), the employer must give
to the Authority all claims and other relevant
30 documents relating to the tail claims that are
in the possession of the employer.
Penalty: 500 penalty units.
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(6) In this section--
tail claim, of an employer that ceases to be a
self-insurer, means a claim, regardless
of when made, in respect of an injury or
5 death--
(a) incurred or suffered by a worker
employed by the employer while
the employer was a self-insurer;
and
10 (b) which entitles that worker, the
dependants of that worker or the
members of that worker's family
to compensation or any other
payments, whether under this Act
15 or at common law.
Division 6--Miscellaneous
153 Guidelines
(1) The Authority may make guidelines to
provide guidance to self-insurers about
20 matters to which self-insurers should have
regard in relation to this Act or in relation to
any regulations or Ministerial Orders made
under this Act.
(2) Guidelines made under subsection (1) may
25 indicate the way in which--
(a) a provision of this Part would, in the
Authority's opinion, apply to a class of
employers or to a set of circumstances;
or
30 (b) a discretion of the Authority under a
provision of this Part would be
exercised.
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(3) For the purposes of subsection (2)(b), the
Authority exercises a discretion if the
Authority--
(a) forms an opinion; or
5 (b) attains a state of mind; or
(c) makes a determination; or
(d) exercises a power; or
(e) refuses or fails to do any of those
things.
10 (4) If the Authority proposes to make guidelines,
it must--
(a) ensure notice of the proposed
guidelines is published; and
(b) include in the notice a statement that
15 written submissions or comments on
the proposed guidelines may be made
to the Authority within a specified
period; and
(c) give a copy of the proposed guidelines
20 to each person who requests it during
that period.
(5) After considering the submissions and
comments (if any) received by the Authority
within the specified period, the Authority
25 may make the guidelines (with or without
modifications) by causing notice of them to
be published.
(6) Guidelines under this section do not give rise
to--
30 (a) any liability of, or other claim against,
the Authority; or
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(b) any right, expectation, duty or
obligation that would not otherwise be
conferred or imposed on a person; or
(c) any defence that would not otherwise
5 be available to that person.
154 Investigation of self-insurer by
Ombudsman
(1) The Ombudsman may enquire into or
investigate--
10 (a) any administrative action of a self-
insurer in its capacity as a self-insurer
under this Act; and
(b) any matter relating to an administrative
action.
15 Note
Under the Ombudsman Act 1973, an administrative
action is defined as including, among other things, a
refusal or failure to take a decision, or to perform an
act. As a result of subsection (2), this definition
20 applies to references to administrative actions in this
subsection.
(2) For the purposes of subsection (1), the
Ombudsman Act 1973 applies as if--
(a) the self-insurer was a Public Statutory
25 Body within the meaning of that Act;
and
(b) the senior executive officer of the self-
insurer (by whatever title he or she is
known) was the principal officer of that
30 public statutory body; and
(c) a reference to the responsible Minister
in sections 17 and 23(3) of that Act was
a reference to the Minister responsible
for administering this section.
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155 Secrecy provisions
(1) This section applies to a person who--
(a) is, or has at any time been--
(i) appointed for the purposes of this
5 Part; or
(ii) authorized to perform or exercise
any function or power of the
Authority under this Part; and
(b) has acquired information by reason of
10 being or having been so appointed or
authorized.
(2) The person must not--
(a) either directly or indirectly make a
record of, or divulge or communicate to
15 anyone else, any information referred to
in subsection (1)(b), except to the
extent necessary to perform official
duties, or to perform or exercise a
function or power referred to in
20 subsection (1)(a)(ii); or
(b) make use of that information, for any
purpose other than the performance of
official duties or the performance or
exercise of a function or power referred
25 to in subsection (1)(a)(ii).
Penalty: In the case of a natural person,
100 penalty units;
In the case of a body corporate,
500 penalty units.
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(3) Nothing in subsection (2) precludes a person
from--
(a) producing a document or divulging or
communicating information to--
5 (i) a court in the course of criminal
proceedings or in the course of
any proceeding under this Act;
(ii) the Secretary to the Department of
Treasury and Finance;
10 (iii) the Secretary to the Department of
Innovation, Industry and Regional
Development;
(iv) a corresponding Authority;
(v) an authority, department or public
15 body, within the meaning of the
Financial Management Act
1994, which has functions in
relation to particular accident
compensation matters arising
20 under this Act or any other Act;
(vi) a committee of the Parliament;
(vii) a person or body approved by the
Governor in Council;
(viii) a person who has responsibility
25 for the administration of a welfare,
benefit or compensation scheme
of a State or Territory or the
Commonwealth;
(ix) the National Occupational Health
30 and Safety Commission;
(x) the Transport Accident
Commission;
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(xi) the Australian Statistician;
(xii) any special commission (within
the meaning of the Evidence
(Commissions) Act 1982) where
5 the Minister has received a request
in writing for information from
the special commission and the
Minister has given written
approval to the person of the
10 communication of that
information; or
(b) producing a document or disclosing
information which is required or
permitted to be produced or disclosed
15 by or under this Act or any other Act.
(4) The Minister must cause a report of requests
for the approval of persons or bodies by the
Governor in Council under subsection
(3)(a)(vii) to be laid before each House of
20 the Parliament within 14 sitting days of that
House after 30 June in each year.
(5) The report must include the following
matters in respect of each request--
(a) the name of the person sought to be
25 approved;
(b) the reason for the request;
(c) the date of the request;
(d) whether the request was approved or
refused.
30 __________________".
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127 New Schedules 4 and 5 inserted
After Schedule 3 to the Accident Compensation
Act 1985 insert--
"SCHEDULE 4
5 Section 140
SELF-INSURERS--PRE-APPLICATION
ELIGIBILITY FEE
1 Pre-application eligibility fee
(1) The fee that must accompany an application
10 under section 140(1) is $780 (or $858
inclusive of GST) as varied in accordance
with subclause (2).
(2) The amount of $780 referred to in
subclause (1) must be varied, in respect of
15 the financial year beginning on 1 July 2011
and each subsequent financial year, in
accordance with the formula--
Cy
F×
Cy - 1
where--
20 F is the amount of $780 or that amount as
last varied in accordance with this
subsection;
Cy is the all groups consumer price index
for Melbourne as at 15 June in the
25 preceding financial year last published
by the Australian Statistician in respect
of the December quarter of that
financial year;
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Cy - 1 is the all groups consumer price index
for Melbourne as at 15 June in the year
preceding the preceding financial year
published by the Australian Statistician
5 in respect of the December quarter
preceding that 15 June.
__________________
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SCHEDULE 5
Section 141(4)
APPLICATION FEE FOR APPROVAL AS
SELF-INSURER
5 1 Application fee
For the purposes of section 141(4) and
subject to section 141B, the fee that must
accompany an application for approval as a
self-insurer is the lesser of--
10 (a) an amount equal to 0033 per cent of
the assessment remuneration of the
applicant determined under clause 2;
(b) the fee limit determined under clause 3.
2 Assessment remuneration
15 (1) For the purposes of clause 1(a) and subject to
subclause (3), assessment remuneration of
an employer means the sum of--
X
× 12
N
where--
20 X is the total rateable remuneration which
was paid or payable during the
preceding year to workers employed by
the employer;
N is the number of months in the
25 preceding year during which the
remuneration referred to in the
definition of X was paid or payable by
the employer.
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(2) If the employer has paid no remuneration
during the preceding year, the assessment
remuneration means the rateable
remuneration estimated by the Authority
5 under section 141A as payable by the
employer during the forthcoming year.
(3) In this clause--
forthcoming year means the next financial
year following the date on which the
10 application is made;
preceding year means the most recent
financial year preceding the date on
which the application is made;
rateable remuneration has the same
15 meaning it has in section 139.
3 Fee limit
(1) For the purposes of clause 1(b), the fee limit
for an application for approval as a self-
insurer is $47 570 or that amount as varied in
20 accordance with subclauses (2), (3) and (4)
as at the date on which the application is
made.
(2) The fee limit must be varied, in respect of
the financial year beginning on 1 July 2010
25 and each subsequent financial year, in
accordance with the formula--
B
A ×
C
where--
A is the amount of $47 570 or that amount
30 as last varied in accordance with this
subsection;
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B is the latest average weekly earnings as
at 30 May in the preceding financial
year of all employees for Victoria
published by the Australian Statistician
5 in respect of the December quarter of
that financial year or, if that is not
available, the latest available quarter;
C is the average weekly earnings of all
employees for Victoria as at 30 May in
10 the year preceding the preceding
financial year published by the
Australian Statistician in respect of the
quarter preceding that 30 May
corresponding to the quarter referred to
15 above.
(3) If the variation of the fee limit by operation
of subclause (2) has the effect of reducing
the amount of the fee limit--
(a) the variation is deemed not to have
20 taken effect, except for the purposes of
the application of this subsection; and
(b) when the fee limit is varied and
increased by operation of subclause (2)
in respect of the next or a subsequent
25 financial year, that variation has effect
as an increase only to the extent (if any)
to which the amount of the increase
exceeds the amount of the reduction in
respect of a preceding financial year, or
30 that part of such a reduction that has not
been set off against a previous increase.
(4) The amount produced by a variation of the
fee limit must be calculated to the nearest
whole $10.
35 __________________".
__________________
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Part 13--Return to Work
s. 128
PART 13--RETURN TO WORK
128 Repeal of section 93D
Section 93D of the Accident Compensation Act
1985 is repealed.
5 129 New Part VIIB inserted
After Part VIIA of the Accident Compensation
Act 1985 insert--
"PART VIIB--RETURN TO WORK
Division 1--Preliminary
10 189 Purpose
The purpose of this Part is to provide--
(a) that employers, workers and other
persons involved in the return to work
process co-operate to ensure that
15 workers successfully return to work;
(b) that employers are responsible for
providing pre-injury employment or
suitable employment to enable workers
to return to work;
20 (c) that workers are responsible for
participating in the return to work
process consistently with their capacity
for work;
(d) for workers to be represented, assisted
25 and supported in the return to work
process;
(e) for effective occupational rehabilitation
for workers to facilitate their early and
sustainable return to work.
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190 Obligations of employers and workers
(1) The obligations of employers are specified in
Division 2.
(2) The obligations of workers are specified in
5 Division 3.
191 Part does not derogate from other
provisions in Act
Nothing in this Part limits or otherwise
affects the operation of other provisions in
10 this Act unless this Part specifically provides
otherwise.
192 Definitions
(1) In this Part--
compliance code means a code approved by
15 the Minister under section 210;
host has the same meaning as it has in
section 199(1)(a);
inspector means an officer or employee of
the Authority who is appointed as an
20 inspector under section 215 for the
purposes of this Part;
labour hire employer has the same meaning
as it has in section 199(1)(a);
preceding policy period means the policy
25 period preceding the policy period in
respect of which a premiums order
made under section 15 of the Accident
Compensation (WorkCover
Insurance) Act 1993 is currently in
30 force;
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pre-injury employment means the
employment of a worker in a position
which is the same as or equivalent to
the position in which the worker was
5 employed before receiving the injury;
rateable remuneration has the same
meaning as it has in section 3(1) of the
Accident Compensation (WorkCover
Insurance) Act 1993;
10 representative, in relation to a worker, does
not include a legal practitioner;
Return to Work improvement notice means
a Return to Work improvement notice
issued under section 224;
15 serious injury has the same meaning as it
has in section 91E;
treating health practitioner means--
(a) a medical practitioner who has
issued a medical certificate
20 referred to in section 105;
(b) a medical practitioner, registered
physiotherapist, registered
chiropractor or registered
osteopath who has issued a
25 certificate of capacity referred to
in section 111(2);
workplace means a place, whether or not in a
building or structure--
(a) where a worker works;
30 (b) from where an employer conducts
business;
(c) where records relating to the
business of an employer are kept.
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(2) In this Part a reference to a worker who has
an incapacity for work, is a reference to a
worker--
(a) who has no current work capacity; or
5 (b) who has a current work capacity; or
(c) who is a pre-12 November 1997
claimant and who has a serious injury
within the meaning of section 91E.
(3) For the purposes of section 195 an employer
10 knows or ought reasonably to have known of
the worker's incapacity for work from the
date of the commencement of the
employment obligation period within the
meaning of section 194(1).
15 193 Application of Part
(1) This Part does not apply to an employer of a
worker who--
(a) at the time of the injury is a student at a
school within the meaning of Part 5.4
20 of the Education and Training
Reform Act 2006; and
(b) is employed under a work experience
arrangement under that Part.
(2) The following classes of employers, to the
25 extent indicated, are not required to comply
with any obligation under this Part other than
the obligation specified in section 194--
(a) employers (including owners
corporations within the meaning of the
30 Owners Corporations Act 2006) who
employ domestic or similar workers
otherwise than for the purposes of the
employer's trade or business (but only
to the extent that such workers are
35 concerned);
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(b) employers who hold owner-builders'
permits under the Building Act 1993
(but only to the extent that the workers
employed for the purposes of the work
5 to which the permits relate are
concerned);
(c) employers (being corporations) who
only employ workers who are directors
of the corporation;
10 (d) employers who only employ workers
who are members of the employer's
family;
(e) employers who only employ workers
who only perform work while outside
15 Victoria.
Division 2--Obligations of employers
194 Provide employment
(1) In this section--
employment obligation period means the
20 period of 52 weeks--
(a) beginning on--
(i) the date the employer
receives from the worker a
medical certificate issued in
25 accordance with section
105(1); or
(ii) the date the employer
receives a claim for
compensation from the
30 worker in the form of weekly
payments; or
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(iii) the date the employer is
notified by the Authority that
the worker has made a claim
for compensation in the form
5 of weekly payments; or
(iv) the date the employer is
notified by the Authority that
the worker has provided the
Authority with a medical
10 certificate issued in
accordance with section
105(1)--
whichever is earliest--
(b) being an aggregate period
15 beginning on that earliest date,
whether or not consecutive, in
respect of which the worker has an
incapacity for work resulting from
or materially contributed to by the
20 injury to which the employment
obligation period relates.
(2) An employer must, to the extent that it is
reasonable to do so, provide to a worker for
the duration of the employment obligation
25 period--
(a) suitable employment if the worker has a
current work capacity; and
(b) pre-injury employment if the worker no
longer has an incapacity for work.
30 Penalty: 180 penalty units for a natural
person;
900 penalty units for a body
corporate.
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(3) For the purposes of this section, the
employment obligation period includes any
period specified in subsection (4)(b), (4)(c)
or (4)(d) if the employer provides suitable
5 employment or pre-injury employment to the
worker during that period.
(4) For the purposes of this section, except as
provided in subsection (3), the employment
obligation period does not include--
10 (a) any period during which the worker
does not have an incapacity for work;
(b) the period commencing on the date of a
decision made by the Authority or self-
insurer to reject the worker's claim for
15 weekly payments and ending on the
date on which--
(i) a Conciliation Officer gives a
direction that weekly payments
are to be paid in relation to the
20 claim; or
(ii) a Conciliation Officer makes a
recommendation that weekly
payments are to be paid in relation
to the claim and the
25 recommendation is accepted by
the employer or the Authority or
self-insurer; or
(iii) the claim is determined by a court
in favour of the worker;
30 (c) the period commencing on the date the
Authority sets aside a decision to accept
a claim for compensation against an
employer under section 114N(1)(b) and
ending on a date specified in
35 subparagraph (i), (ii) or (iii) of
paragraph (b);
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(d) the period commencing on the date a
direction given by a Conciliation
Officer that weekly payments are to be
made is revoked and the date that the
5 payment of weekly payments is
resumed.
195 Plan return to work
(1) An employer must, to the extent that it is
reasonable to do so, plan the return to work
10 of a worker from the date on which the
employer knows or ought reasonably to have
known of the worker's incapacity for work,
whichever is the earlier date.
Penalty: 120 penalty units for a natural
15 person;
600 penalty units for a body
corporate.
(2) An employer must when planning the return
to work of a worker undertake the tasks
20 specified in subsection (3) as often as is
necessary to enable the worker to return to
work in employment which is consistent
with the worker's capacity for work.
(3) Planning the return to work of a worker
25 includes--
(a) obtaining relevant information about
the worker's capacity for work; and
(b) considering reasonable workplace
support, aids or modifications to assist
30 in the worker's return to work; and
(c) assessing and proposing options for
suitable employment or pre-injury
employment; and
(d) engaging in consultation in accordance
35 with section 196; and
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(e) providing the worker with clear,
accurate and current details of the
worker's return to work arrangements;
and
5 (f) monitoring the worker's progress.
196 Consult about the return to work of a
worker
(1) An employer must, to the extent that it is
reasonable to do so, consult about the return
10 to work of a worker with--
(a) the worker; and
(b) subject to the consent of the worker, the
worker's treating health practitioner;
and
15 (c) a provider of occupational
rehabilitation services that provides
those services to the worker in
accordance with section 99 and 99A.
Penalty: 120 penalty units for a natural
20 person;
600 penalty units for a body
corporate.
(2) The employer must consult with the persons
specified in subsection (1) by--
25 (a) sharing information about the worker's
return to work; and
(b) providing a reasonable opportunity for
those persons to consider and express
their views about the worker's return to
30 work; and
(c) taking those views into account.
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(3) For the purposes of this section, an
employer's consultation with a worker about
the return to work of the worker must
involve the employer consulting directly
5 with the worker however a worker may be
assisted by a representative during any
consultation.
197 Nominate a return to work co-ordinator
(1) Subject to this section, an employer must
10 nominate a person who has an appropriate
level of seniority and is competent to assist
the employer to meet the obligations of the
employer under this Part to be a return to
work co-ordinator.
15 Penalty: 120 penalty units for a natural
person;
600 penalty units for a body
corporate.
(2) A person is competent to assist the employer
20 to meet the obligations of the employer
under this Part if the person has knowledge,
skills or experience relevant to planning for
return to work, including--
(a) knowledge of the obligations of
25 employers and workers under this Part;
and
(b) knowledge of the compensation scheme
provided for under this Act and the
functions of the Authority and, if
30 relevant, self-insurers under this Part.
(3) An employer who has certified, or in respect
of whom there has been assessed, total
rateable remuneration of $2 000 000 or more
for all workplaces of the employer in respect
35 of the preceding policy period must ensure
that a person is--
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(a) nominated as the return to work
co-ordinator; and
(b) appointed at all times.
(4) An employer who has certified, or in respect
5 of whom there has been assessed, total
remuneration of less than $2 000 000 for all
workplaces of the employer in respect of the
preceding policy period must ensure that the
person nominated as a return to work
10 co-ordinator is appointed for the duration of
the employer's obligations under this Part to
a worker who has an incapacity for work.
(5) A return to work co-ordinator is not
personally liable for any act or omission
15 done or omitted to be done in good faith in
the course of acting as a return to work
co-ordinator.
(6) Any liability resulting from an act or
omission that, but for subsection (5), would
20 attach to a return to work co-ordinator,
instead attaches to the employer.
(7) The amount specified in subsections (3)
and (4) shall be varied, in respect of the
financial year beginning on 1 July 2010 and
25 each subsequent financial year, in
accordance with the formula--
E
D×
F
where--
D is the amount specified in subsections
30 (3) and (4) or that amount as last varied
in accordance with this subsection;
E is the all groups consumer price index
for Melbourne as at 15 June in the
preceding financial year last published
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by the Australian Statistician in respect
of the December quarter of that
financial year;
F is the all groups consumer price index
5 for Melbourne as at 15 June in the year
preceding the preceding financial year
published by the Australian Statistician
in respect of the December quarter
preceding that 15 June.
10 198 Make return to work information
available
(1) An employer must make information
available to the employer's workers about--
(a) the obligations of the employer under
15 this Part and how the employer is
meeting the obligations; and
(b) the rights and obligations of workers
under this Part and how workers can
obtain further information about the
20 rights and obligations; and
(c) the name and contact details of the
authorised agent selected by the
employer; and
(d) the name and contact details of the
25 return to work co-ordinator, if
applicable; and
(e) the procedure for resolving return to
work issues as specified in section 207.
Penalty: 120 penalty units for a natural
30 person;
600 penalty units for a body
corporate.
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(2) An employer must consult with the
employer's workers as to how the
information is to be made available under
this section.
5 Penalty: 120 penalty units for a natural
person;
600 penalty units for a body
corporate.
199 Host to co-operate with labour hire
10 employer
(1) This section applies if--
(a) the services of a worker are let on hire
to another person (host) by the
employer (labour hire employer) with
15 whom the worker had entered into a
contract of employment; and
(b) there is caused to the worker an
incapacity for work resulting from or
materially contributed to by an injury
20 arising out of or in the course of
employment with the labour hire
employer whilst the worker is let on
hire to the host.
(2) A host must, to the extent that it is
25 reasonable to do so, co-operate with the
labour hire employer, in respect of action
taken by the labour hire employer in order to
comply with sections 194, 195 and 196, to
facilitate the worker's return to work.
30 Penalty: 120 penalty units for a natural
person;
600 penalty units for a body
corporate.
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Division 3--Obligations of workers
200 Participate in planning for return to work
A worker who has an incapacity for work
must in co-operation with the employer,
5 Authority or self-insurer make reasonable
efforts to actively participate and co-operate
in planning for the worker to return to work.
201 Use occupational rehabilitation services
A worker who has an incapacity for work
10 must actively use an occupational
rehabilitation service provided in accordance
with sections 99 and 99A and co-operate
with the provider of that service.
202 Participate in assessments
15 A worker who has an incapacity for work
must, when requested to do so by the
employer, Authority or self-insurer, actively
participate and co-operate in any assessment
of--
20 (a) capacity for work;
(b) rehabilitation progress;
(c) future employment prospects.
203 Return to work
(1) A worker who has an incapacity for work
25 must, in co-operation with the employer,
Authority or self-insurer make reasonable
efforts to return to work in suitable
employment or pre-injury employment at the
worker's place of employment or at another
30 place of employment.
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(2) For the purposes of subsection (1), a worker
is to be treated as making a reasonable effort
to return to work in suitable employment or
pre-injury employment during any
5 reasonable period in which--
(a) the worker is waiting for the
commencement of an occupational
rehabilitation service after approval has
been given; or
10 (b) the worker is waiting for a response to a
request for suitable employment or pre-
injury employment made by the worker
and received by the employer; or
(c) if the employer's response is that
15 suitable employment or pre-injury
employment may or will be provided at
some time, the worker is waiting for
suitable employment or pre-injury
employment to commence; or
20 (d) if the employer's response is that
suitable employment or pre-injury
employment cannot be provided at
some time, the worker is waiting for a
response to a request for suitable
25 employment or pre-injury employment
from another employer.
(3) For the purposes of subsection (1), a worker
must not be treated as making a reasonable
effort to return to work in suitable
30 employment or pre-injury employment
during any period in which the worker has
refused or failed to meet any obligations
under this Division.
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204 Participate in an interview
(1) A worker who has an incapacity for work
must, as required by the Authority or self-
insurer--
5 (a) participate in an interview with the
representative of the Authority or self-
insurer for the purpose of enhancing the
worker's opportunities to return to
work; and
10 (b) actively participate and co-operate in
the interview referred to in paragraph
(a) in order to comply with his or her
obligations under this Division.
(2) In arranging an interview under this section,
15 the Authority or self-insurer must, by notice
in writing given to the worker, specify--
(a) the time and place of the interview; and
(b) that the worker must participate in an
interview and may be accompanied by
20 a representative.
Division 4--Termination of compensation
205 Failure to comply with Division 3
(1) This section applies if a worker does not
comply with an obligation of the worker
25 imposed under Division 3.
(2) If this section applies, the Authority or self-
insurer may in accordance with this
section--
(a) suspend the payment of compensation
30 in the form of weekly payments to the
worker; or
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(b) terminate the payment of compensation
in the form of weekly payments to the
worker; or
(c) cease and determine the entitlement of
5 the worker to compensation in the form
of weekly payments in respect of the
injury under this Act.
(3) If the Authority or self-insurer seeks to
suspend payments of compensation under
10 subsection (2)(a), the Authority or self-
insurer must give written notice to the
worker stating--
(a) the reason for the giving of the notice;
and
15 (b) that unless the worker complies with
the obligation under Division 3
specified in the notice, weekly
payments to the worker will be
suspended from the date specified in
20 the notice which must be a date at least
14 days after notice is given but no
more than 60 days after notice is given;
and
(c) the consequences of failing to comply
25 as specified in the notice.
(4) If the worker fails to comply with a written
notice under subsection (3), the Authority or
self-insurer may suspend the payment of
weekly payments to the worker for a period
30 of 28 days after the date specified in the
notice referred to in subsection (3)(b).
(5) If the worker complies with the obligation
specified in the notice under subsection (3)
during the period that weekly payments are
35 suspended under subsection (4), the
Authority or self-insurer must, subject to and
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in accordance with this Act, resume the
payment of weekly payments with effect
from the date on which the worker complied
with the obligation.
5 (6) If subsection (5) applies, the worker forfeits
any compensation in the form of weekly
payments that would otherwise have been
made during the period of suspension until
the worker complied with the obligation and
10 that period is included in determining the
first or second entitlement period under
Part IV.
(7) If the worker does not comply with the
obligation specified in the notice under
15 subsection (3) for the entire period that
weekly payments are suspended under
subsection (4), the Authority or self-insurer
may terminate the payment of compensation
in the form of weekly payments to the
20 worker in respect of the injury by written
notice stating the reasons for giving the
notice.
(8) If the worker--
(a) does not comply with the obligation
25 specified in the notice under subsection
(3) for the entire period that weekly
payments are suspended under
subsection (4); and
(b) has within the last 12 months prior to
30 the giving of the notice referred to in
paragraph (a)--
(i) been issued 2 notices under
subsection (3) without a
subsequent suspension of weekly
35 payments; or
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(ii) had compensation in the form of
weekly payments suspended once
under subsection (4)--
the Authority or self-insurer may cease and
5 determine the entitlement to compensation in
the form of weekly payments in respect of
the injury to the worker under this Act by
written notice stating the reasons for giving
the notice.
10 (9) Section 114 does not apply to a notice given
under this section.
(10) This section does not derogate from any
other provision of this Act.
206 Notification of return to work
15 (1) If a worker who has been receiving weekly
payments directly from the Authority returns
to any work (whether as a worker or
otherwise), the worker must immediately
notify the Authority of the return to work.
20 (2) If a worker who has been receiving weekly
payments returns to any work, whether as a
self-employed person or in employment, and
whether in receipt of current weekly earnings
or not, with an employer other than the
25 employer in whose employment the injury
occurred, the worker must immediately
notify the employer in whose employment
the injury occurred of the return to work.
Division 5--General provisions
30 207 Resolution of return to work issues
(1) If an issue about a worker's return to work
arises, the employer and the worker must
attempt to resolve the issue in accordance
with--
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(a) the relevant agreed procedure; or
(b) if there is no relevant agreed procedure,
in accordance with the relevant
procedure specified in written
5 directions issued by the Minister for the
purposes of this section.
(2) The Minister may issue written directions in
respect of the procedure for the resolution of
a return to work issue.
10 208 Information about the employer
obligation period
(1) As soon as practicable after accepting a
claim for compensation from a worker who
has an incapacity for work, the Authority or
15 self-insurer must inform the worker--
(a) of the obligation of the employer to
provide suitable employment or pre-
injury employment for the duration of
the employment obligation period; and
20 (b) as to how the employment obligation
period is to be calculated.
(2) Subject to, and in accordance with, any
directions issued under subsection (3), if the
Authority or self-insurer estimates that at
25 least 30 weeks of the employment obligation
period have expired, the Authority or self-
insurer must advise the worker in writing, no
later than what the Authority or self-insurer
estimates to be 36 weeks after the expiration
30 of the employment obligation period--
(a) as to the number of weeks of the
employment obligation period which in
the opinion of the Authority or self-
insurer have expired; and
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(b) that the worker may request the
Authority or self-insurer to provide
more information in respect of return to
work.
5 (3) The Minister may issue written directions in
respect of--
(a) the information to be provided under
this section; and
(b) the type of circumstances that do not
10 require written advice to be given under
subsection (2).
(4) This section does not affect the obligations
of an employer under this Part.
(5) In this section--
15 employment obligation period has the same
meaning as it has in section 194.
209 Authority may give direction
(1) The Authority may direct an employer to use
the services of an approved provider of
20 occupational rehabilitation services to advise
and assist the employer in relation to the
employer's return to work obligations.
(2) An employer who is given a direction under
subsection (1) must comply with the
25 direction.
Penalty: 120 penalty units for a natural
person;
600 penalty units for a body
corporate.
30 (3) A direction made under subsection (1) does
not derogate from any matter referred to in
section 99.
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210 Compliance code
(1) For the purpose of providing practical
guidance to persons who have obligations
under this Part, the Minister may make an
5 order approving a compliance code.
(2) A compliance code may apply, adopt or
incorporate any matter contained in a
document formulated, issued or published by
a person or body whether--
10 (a) with or without modification; or
(b) as in force at a particular time or from
time to time.
(3) The Minister may make an order approving
the variation of a compliance code or
15 revoking the approval of a compliance code.
(4) An order approving a compliance code, or a
variation or revocation order, takes effect
when notice of it is published in the
Government Gazette or on such later date as
20 is specified in the order.
Note
The Minister's power to make an order approving a
compliance code, or a variation order, is subject to
disallowance by the Parliament (see section 212).
25 (5) As soon as practicable after making an order
approving a compliance code, or a variation
or revocation order, the Minister must ensure
that notice of the making of the order is
published in the Government Gazette and a
30 newspaper circulating generally throughout
the State.
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(6) The Minister must ensure that a copy of--
(a) each compliance code that is currently
approved; and
(b) each document applied, adopted or
5 incorporated (to any extent) by a
compliance code--
is available for inspection by members of the
public without charge at the office of the
Authority during normal business hours.
10 211 Effect of compliance codes
A failure to comply with a compliance code
does not of itself give rise to any civil or
criminal liability.
Note
15 A person who complies with a compliance code may,
however, be taken to have complied with this Act
(see section 213).
212 Disallowance of certain compliance code
orders
20 (1) The Minister's power to make an order
approving a compliance code, or a variation
order, under this Part is subject to the order
being disallowed by the Parliament.
(2) Section 15 and Part 5 of the Subordinate
25 Legislation Act 1994 apply for the purposes
of subsection (1) as though--
(a) an order were a statutory rule (within
the meaning of that Act); and
(b) notice of the making of the statutory
30 rule had been published in the
Government Gazette when notice of the
order or variation order (as the case
may be) was published in the
Government Gazette.
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213 Effect of compliance with compliance
codes
If a compliance code makes provision for or
with respect to an obligation imposed by this
5 Part and a person complies with the
compliance code to the extent that it makes
that provision, the person is, for the purposes
of this Act taken to have complied with this
Act in relation to that obligation.
10 213A Functions of Authority in respect of
compliance codes
(1) The Authority may make recommendations
to the Minister with respect to compliance
codes that the Minister or the Authority
15 propose should be made under this Act.
(2) Before the Authority makes a
recommendation to the Minister under
subsection (1) concerning a proposed
compliance code, it must issue the proposed
20 compliance code for public review and
comment.
(3) However, the Authority need not comply
with subsection (2) if the Authority is
notified by the Minister that the Minister
25 considers that it is in the public interest that
the proposed compliance code be made as
soon as practicable.
214 Provisions applying to directions issued by
the Minister
30 (1) This section applies to directions issued by
the Minister under sections 207 and 208.
(2) A direction must be published in the
Government Gazette.
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(3) The Minister may amend or revoke a
direction by publishing the amendment or
revocation in the Government Gazette.
(4) A direction, amendment or revocation takes
5 effect on the day after it is published in the
Government Gazette, or on any later day
specified in the direction, amendment or
revocation.
(5) A person to whom a direction applies must
10 comply with the direction.
214A Disallowance of certain Ministerial
directions
(1) The Minister's power to issue directions, or
amend directions, under this Part is subject
15 to the directions being disallowed by the
Parliament.
(2) Section 15 and Part 5 of the Subordinate
Legislation Act 1994 apply for the purposes
of subsection (1) as though--
20 (a) a direction were a statutory rule (within
the meaning of that Act); and
(b) notice of the making of the statutory
rule had been published in the
Government Gazette when notice of the
25 direction or amendment of the direction
(as the case may be) was published in
the Government Gazette.
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Division 6--Return to work inspectorate
Subdivision 1--Appointment of inspectors
214B Interpretation
In this Division, a reference to an employer
5 includes a reference to a host unless the
contrary intention appears.
215 Appointment of inspectors
(1) The Authority may, by instrument in writing,
appoint an officer or employee of the
10 Authority to be an inspector for the purposes
of this Part.
(2) The Authority must give each inspector a
certificate of appointment signed by the chief
executive of the Authority.
15 (3) A certificate of appointment given to an
inspector in accordance with subsection (2)
is conclusive proof of the valid appointment
of the inspector under this section.
216 Identity cards
20 (1) The Authority must issue an identity card to
each inspector containing a photograph of
the inspector and his or her signature.
(2) An inspector must produce his or her identity
card for inspection if asked to do so when
25 performing a function or exercising a power
under this Act.
(3) If a person to whom an identity card has
been issued ceases to be an inspector, the
person must return the identity card to the
30 Authority as soon as possible.
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Subdivision 2--Performance of functions or
exercise of powers
217 Inspectors subject to Authority's
directions
5 (1) An inspector is subject to the Authority's
directions in the performance of his or her
functions or exercise of his or her powers
under this Act.
(2) A direction under subsection (1) may be of a
10 general nature or may relate to a specified
matter or specified class of matter.
218 Power to enter
(1) Subject to subsection (2), an inspector may,
without force, enter a place that the inspector
15 reasonably believes is a workplace at any
time during the work hours of the workplace.
(2) The powers of an inspector under this
Subdivision in relation to entering a place
that is a workplace are not exercisable in
20 respect of any part of that place that is only
used for residential purposes except with the
consent of the occupier for the time being of
the place.
219 Announcement on entry
25 Immediately on entering a workplace under
this Subdivision, an inspector must take
reasonable steps to notify the occupier or
apparent occupier of the entry and to produce
his or her identity card for inspection by that
30 person.
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220 Report to be given about entry
(1) An inspector who enters a workplace under
this Subdivision must give a report
concerning the entry when, or as soon as
5 practicable after, the inspector leaves the
workplace to the occupier or apparent
occupier for the time being of the workplace.
(2) If the purpose of the entry into a workplace
by an inspector relates to the return to work
10 of a worker, the inspector may give a copy of
the report concerning the entry, to the worker
and any authorised agent selected by the
employer to assist in the management of the
worker's claim for compensation.
15 (3) The report must be in writing and include--
(a) the time of the entry and departure; and
(b) the purpose of the entry; and
(c) a description of things done while at the
workplace; and
20 (d) a summary of the inspector's
observations while at the workplace;
and
(e) the procedure for contacting the
Authority and the inspector for further
25 details of the entry; and
(f) the procedure for seeking review of any
decision made by the inspector during
the entry.
(4) If the inspector takes photographs or makes
30 sketches or recordings under section 221(e),
the report must also include a statement
that--
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(a) the photographs have been taken or
sketches or recordings have been made;
and
(b) they are or will be available for
5 inspection at a specified place.
221 General powers on entry
An inspector who enters a workplace under
this Subdivision may do any of the
following--
10 (a) inspect, examine and make enquiries at
the workplace;
(b) inspect and examine any thing
(including a document) at the
workplace;
15 (c) bring any equipment or materials to the
workplace that may be required;
(d) seize any thing (including a document)
at the workplace that may afford
evidence of the commission of an
20 offence against this Act;
(e) take photographs or measurements or
make sketches or recordings;
(f) exercise any other power conferred on
the inspector by this Act;
25 (g) do any other thing that is reasonably
necessary for the purpose of the
inspector performing his or her
functions or exercising his or her
powers under this Act.
30 Note
This section does not affect legal professional privilege or
client legal privilege (see section 248E) or, in the case of a
requirement to answer questions, the privilege against self-
incrimination (see section 248D).
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222 Powers in relation to obtaining
information
(1) An inspector who enters a workplace under
this Subdivision may--
5 (a) require a person to produce a document
or part of a document that is in the
person's possession or control; and
(b) examine that document or part; and
(c) require a person to answer any
10 questions put by the inspector.
(2) A person must not, without reasonable
excuse, refuse or fail to comply with a
requirement under subsection (1).
Penalty: 60 penalty units for a natural
15 person;
300 penalty units for a body
corporate.
(3) Before requiring a person to produce a
document or part of a document or to answer
20 questions under subsection (1), an inspector
must--
(a) produce his or her identity card for
inspection by the person and warn the
person that a refusal or failure to
25 comply with the requirement, without
reasonable excuse, is an offence; and
(b) inform the person that he or she may
refuse or fail to answer any question if
answering the question would tend to
30 incriminate him or her.
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(4) A person is not liable to be prosecuted for an
offence against subsection (2) if the
inspector concerned failed to comply with
subsection (3).
5 Note
This section does not affect legal professional privilege or
client legal privilege (see section 248E) or, in the case of a
requirement to answer questions, the privilege against self-
incrimination (see section 248D).
10 223 Return of seized things
As soon as possible after an inspector seizes
any thing (including a document) under this
Subdivision the Authority must return the
thing to the owner unless--
15 (a) the Authority considers it necessary to
retain the thing because it may afford
evidence in proceedings, that have been
or may be commenced, for an offence
against this Act; or
20 (b) the Authority is otherwise authorised
(by a law or court order) to retain,
destroy or dispose of the thing.
224 Power to issue Return to Work
improvement notice
25 (1) If an inspector reasonably believes that an
employer--
(a) is contravening a provision of this Part;
or
(b) has contravened such a provision in
30 circumstances that make it likely that
the contravention will continue or be
repeated--
the inspector may issue to the employer a
Return to Work improvement notice
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requiring the employer to remedy the
contravention or likely contravention.
(2) A Return to Work improvement notice
must--
5 (a) state the basis for the inspector's belief
on which the issue of the notice is
based; and
(b) specify the provision of this Part that
the inspector considers has been or is
10 likely to be contravened; and
(c) specify a date (with or without a time)
by which the employer is required to
remedy the contravention or likely
contravention; and
15 (d) set out the penalty for contravening the
notice; and
(e) state how the employer may seek
review of the issue of the notice; and
(f) include a statement of the effect of
20 section 229 (proceedings for offence
not affected by Return to Work
improvement notice).
(3) A Return to Work improvement notice may
include directions concerning the measures
25 to be taken to remedy the contravention or
likely contravention to which the notice
relates and may, in particular, include--
(a) a direction that if the person has not
remedied the contravention, likely
30 contravention, matters or activities (as
the case may be) by the date and time
(if any) specified in the notice, an
activity to which the notice relates is to
cease until an inspector has certified in
35 writing that the contravention, likely
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contravention, matters or activities have
been remedied; and
(b) interim directions, or interim conditions
on the carrying on of any activities to
5 which the notice relates, that the
inspector considers necessary to enable
the worker's early, safe and sustainable
return to work.
(4) An employer to whom a Return to Work
10 improvement notice is issued must comply
with the Return to Work improvement
notice.
Penalty: 120 penalty units for a natural
person;
15 600 penalty units for a body
corporate.
(5) If an application for review of a decision
under this section has been made under
Subdivision 4, an inspector must not give a
20 certificate under subsection (3)(a) in relation
to the Return to Work improvement notice.
225 Directions or conditions in a Return to
Work improvement notice
A direction or condition included in a Return
25 to Work improvement notice may--
(a) refer to a compliance code or a
Ministerial direction; and
(b) offer the employer to whom it is issued
a choice of ways in which to remedy
30 the contravention or likely
contravention.
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226 Variation or cancellation of Return to
Work improvement notice
A Return to Work improvement notice
issued by an inspector may be varied or
5 cancelled by the Authority.
227 Issue of Return to Work improvement
notice
(1) A Return to Work improvement notice may
be issued to an employer by--
10 (a) delivering it personally to the employer
or sending it by post or facsimile to the
usual or last known place of business of
the employer; or
(b) leaving it for the employer at the usual
15 or last known place of business of the
employer with a person who apparently
has authority to receive correspondence
or communications with the employer.
(2) An employer to whom a Return to Work
20 improvement notice is issued must as soon
as possible, if the Return to Work
improvement notice relates to the obligation
of the employer under section 197 or 198,
display a copy of the notice in a prominent
25 place at or near the workplace.
Penalty: 5 penalty units for a natural
person;
25 penalty units for a body
corporate.
30 (3) If the Return to Work improvement notice
relates to the return to work of a worker, the
inspector must provide a copy of the notice
to the worker.
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(4) If a Return to Work improvement notice is
issued--
(a) to a labour hire employer and the
Return to Work improvement notice
5 relates to a worker who received an
injury arising out of or in the course of
employment with the labour hire
employer whilst let on hire to a host,
the inspector may provide a copy of the
10 Return to Work improvement notice to
the host;
(b) to a host and the Return to Work
improvement notice relates to the
obligation to co-operate with the labour
15 hire employer, in respect of action
taken by the labour hire employer in
order to comply with sections 194, 195
and 196, to facilitate the worker's return
to work, the inspector may provide a
20 copy of the Return to Work
improvement notice to the labour hire
employer.
(5) If a Return to Work improvement notice
relates to an obligation of an employer in
25 respect of the return to work of a worker, the
inspector may provide a copy of the Return
to Work improvement notice to the
authorised agent selected by the employer
for the purpose of assisting in the
30 management of the claim for compensation
by the worker.
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228 Formal irregularity or defect in Return to
Work improvement notice
A Return to Work improvement notice is not
invalid merely because of--
5 (a) a formal defect or irregularity in the
Return to Work improvement notice
unless the defect or irregularity causes
or is likely to cause substantial
injustice; or
10 (b) a failure to use the correct name of the
employer to whom the Return to Work
improvement notice is issued if the
Return to Work improvement notice
sufficiently identifies the employer and
15 is issued to the employer in accordance
with section 227.
229 Proceedings for offence not affected by
Return to Work improvement notice
The issue, variation or cancellation of a
20 Return to Work improvement notice does not
affect any proceedings for an offence against
this Act in connection with any matter in
respect of which the Return to Work
improvement notice was issued.
25 230 Persons must assist inspector
A person must not, without reasonable
excuse, refuse or fail to provide such
assistance as an inspector may reasonably
require for the performance of his or her
30 functions or exercise of his or her powers
under this Act.
Penalty: 60 penalty units for a natural
person;
300 penalty units for a body
35 corporate.
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231 Other assistance in exercising powers
(1) For the purpose of exercising a power under
this Act, an inspector may seek the
assistance of any person.
5 (2) If the power being exercised involves entry
to premises, the person assisting must be
allowed access to those premises by the
employer or apparent employer or occupier
or apparent occupier.
10 Penalty: 60 penalty units for a natural
person;
300 penalty units for a body
corporate.
(3) If an inspector uses the assistance of an
15 interpreter--
(a) any enquiry or request made by the
interpreter on the inspector's behalf is
taken to have been made by the
inspector; and
20 (b) any answer given to the interpreter is
taken to have been given to the
inspector.
232 Inspector may take affidavits and
statutory declarations
25 An inspector is authorised to take affidavits
and statutory declarations for any purpose
relating or incidental to the performance of
his or her functions or exercise of his or her
powers under this Act.
30 233 Inspector may copy documents
An inspector may make copies of, or take
extracts from, a document or part of a
document given to the inspector in
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accordance with a requirement under this
Act.
Subdivision 3--Offences
234 Offences in relation to inspections
5 (1) A person must not--
(a) intentionally hinder or obstruct an
inspector in the performance of his or
her functions or exercise of his or her
powers under this Act, or induce or
10 attempt to induce any other person to
do so; or
(b) intentionally conceal from an inspector
the location or existence of any other
person or thing; or
15 (c) intentionally prevent or attempt to
prevent any other person from assisting
an inspector.
Penalty: 60 penalty units for a natural
person;
20 300 penalty units for a body
corporate.
(2) A person must not assault, directly or
indirectly intimidate or threaten, or attempt
to intimidate or threaten, an inspector or a
25 person assisting an inspector.
Penalty: Imprisonment for 2 years, or
240 penalty units, or both for a
natural person;
1200 penalty units for a body
30 corporate.
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235 Offence to impersonate inspector
A person who is not an inspector must not, in
any way, hold himself or herself out to be an
inspector.
5 Penalty: 60 penalty units.
Subdivision 4--Review of decisions
236 Which decisions are reviewable
(1) The following table sets out--
(a) decisions made under this Division that
10 are reviewable in accordance with this
Subdivision (reviewable decisions);
and
(b) who is eligible to apply for review of a
reviewable decision (the eligible person
15 in relation to the reviewable decision).
(2) To avoid doubt, sections 4 and 5 of the
Victorian Civil and Administrative
Tribunal Act 1998 apply for the purposes of
this Division.
20 Note
Under section 4 of the Victorian Civil and
Administrative Tribunal Act 1998, a person makes
a decision if the person refuses to make a decision or
an instrument, imposes a condition or restriction or
25 does or refuses to do any other act or thing. Section 5
of that Act sets out when a person's interests are
affected by a decision.
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Provision under which Eligible person in relation to
Item reviewable decision is made reviewable decision
1 Section 224(1) (issue of a (1) The employer to whom the
Return to Work Return to Work improvement
improvement notice) notice is issued.
(2) A worker whose interests are
directly affected by the
decision.
(3) An employer whose interests
are affected by the decision.
2 Section 224(3)(a) (1) The employer to whom the
(certification that matters the Return to Work improvement
subject of a Return to Work notice was issued.
improvement notice have
(2) A worker whose interests are
been remedied)
directly affected by the
decision.
(3) An employer whose interests
are affected by the decision.
3 Section 226 (variation or (1) The employer to whom the
cancellation of a Return to Return to Work improvement
Work improvement notice) notice concerned was issued.
(2) A worker whose interests are
directly affected by the
decision.
(3) An employer whose interests
are affected by the decision.
236A Internal review
(1) An eligible person in relation to a reviewable
decision, other than a decision made by the
Authority under section 226, may apply to
5 the Authority for review of the decision
within--
(a) 14 days after the day on which the
decision first came to the eligible
person's notice; or
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(b) such longer period as the Authority
allows.
(2) The application must be in the form
approved (in writing) by the Authority.
5 (3) If an application is made to the Authority in
accordance with this section, the Authority
must make a decision--
(a) to affirm or vary the reviewable
decision; or
10 (b) to set aside the reviewable decision and
substitute another decision that the
Authority considers appropriate.
(4) The Authority must give a written notice to
the applicant setting out--
15 (a) the Authority's decision under
subsection (3) and the reasons for the
decision; and
(b) the findings on material questions of
fact that led to the decision, referring to
20 the evidence or other material on which
those findings were based--
and must do so within 21 days after the
application is made or, if the reviewable
decision was made under section 224(3)(a),
25 within 7 days after the application is made.
(5) If the Authority has not notified an applicant
of a decision in accordance with subsection
(4), the Authority is taken to have made a
decision to affirm the reviewable decision.
30 (6) An application under this section does not
affect the operation of the reviewable
decision or prevent the taking of any action
to implement it unless the Authority, on its
own initiative or on the application of the
35 applicant for review, stays the operation of
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the decision pending the determination of the
review.
(7) The Authority must make a decision on an
application for a stay within 24 hours after
5 the making of the application.
(8) If the Authority has not made a decision in
accordance with subsection (7), the
Authority is taken to have made a decision to
grant a stay.
10 (9) The Authority may attach any conditions to a
stay of the operation of a reviewable decision
that it considers appropriate.
236B Review by the Tribunal
(1) A person may apply to the Tribunal for
15 review of--
(a) a reviewable decision made by the
Authority under section 226; or
(b) a decision made, or taken to have been
made, by the Authority under section
20 236A in respect of a reviewable
decision (including a decision
concerning a stay of the operation of
the reviewable decision)--
if the person is an eligible person in relation
25 to the reviewable decision.
(2) The application must be made--
(a) within 14 days after the day on which
the decision first came to the applicant's
notice; or
30 (b) if the Authority is required by the
Victorian Civil and Administrative
Tribunal Act 1998 to give the
applicant a statement of reasons, within
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14 days after the day on which the
applicant is given the statement--
whichever period ends later.
__________________".
5 130 Consequential amendments relating to this Part
(1) In section 5(1) of the Accident Compensation
Act 1985, the definitions of occupational
rehabilitation program, risk management
program and return to work plan are repealed.
10 (2) Section 113 of the Accident Compensation Act
1985 is repealed.
(3) In the Accident Compensation Act 1985--
(a) in section 114(13), after "required period of
notice" insert ", unless expressly otherwise
15 provided in this Act";
(b) section 114(7) is repealed;
(c) in section 242, subsections (1), (5), (6)
and (8) are repealed;
(d) in section 252(4)(a), omit "242(5),";
20 (e) in section 252(4)(b), for "242(1)" substitute
"194(1)".
(4) Sections 123(2) and 123(3) of the Accident
Compensation Act 1985 are repealed.
(5) In section 123A of the Accident Compensation
25 Act 1985, after "this Part" insert "or Part VIIB".
131 Repeal of Part VI
Part VI of the Accident Compensation Act 1985
is repealed.
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132 New section 20E inserted
After section 20D of the Accident Compensation
Act 1985 insert--
"20E Power to give advice on compliance
5 (1) The Authority may give advice to a person
who has an obligation under this Act about
complying with that obligation.
(2) The giving of such advice by the Authority
does not give rise to--
10 (a) any right, expectation, duty or
obligation that would not otherwise be
conferred or imposed on the person
given the advice; or
(b) any defence that would not otherwise
15 be available to that person.
(3) The Authority's power under this section to
give advice may also be exercised by an
inspector or, if the Authority authorises any
other person to exercise the power, that other
20 person.
Note
An inspector or other person exercising this power
may not be liable for things done or omitted to be
done in good faith (see section 22(5)).".
25 133 New sections 248D and 248E inserted
After section 248C of the Accident
Compensation Act 1985 insert--
"248D Protection against self-incrimination
(1) A natural person may refuse or fail to give
30 information or do any other thing that the
person is required to do by or under this Act
or the regulations if giving the information or
doing the other thing would tend to
incriminate the person.
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(2) However, subsection (1) does not apply to
the production of a document or part of a
document that the person is required by this
Act to produce.
5 248E Legal professional privilege and client
legal privilege not affected
Nothing in this Act--
(a) entitles or requires a person to disclose
information that is the subject of legal
10 professional privilege or client legal
privilege; or
(b) affects the law or practice relating to
legal professional privilege or client
legal privilege.".
15 134 Amendment of section 252
After section 252(4) of the Accident
Compensation Act 1985 insert--
"(4A) Despite any law to the contrary, proceedings
for an offence against Part VIIB may, with
20 the authority of the Director of Public
Prosecutions, be instituted at any time after
the offence is committed.".
135 New section 252AA inserted
After section 252 of the Accident Compensation
25 Act 1985 insert--
"252AA Procedure if prosecution is not brought
(1) If--
(a) a person considers that the occurrence
of an act, matter or thing constitutes an
30 offence against Part VIIB; and
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(b) no prosecution has been brought in
respect of the occurrence of the act,
matter or thing within 6 months of that
occurrence--
5 the person may request in writing that the
Authority bring a prosecution.
(2) Within 3 months after the Authority receives
a request under subsection (1) it must--
(a) investigate the matter; and
10 (b) advise (in writing) the person whether a
prosecution has been or will be brought
or give reasons why a prosecution will
not be brought.
(3) If the Authority advises the person that a
15 prosecution will not be brought, the
Authority must refer the matter to the
Director of Public Prosecutions if the person
requests (in writing) that the Authority do so.
(4) The Director of Public Prosecutions must
20 consider the matter and advise (in writing)
the Authority whether or not the Director
considers that a prosecution should be
brought.
(5) The Authority must ensure a copy of the
25 advice is sent to the person who made the
request and, if the Authority declines to
follow advice from the Director of Public
Prosecutions to bring proceedings, the
Authority must give the person written
30 reasons for its decision.
(6) The Authority must include in its annual
report, and publish on its website, a
statement setting out--
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(a) the number of requests received by the
Authority under subsection (1); and
(b) the number of cases in which the
Authority has advised under subsection
5 (2)(b) that a prosecution has been or
will be brought, or will not be brought;
and
(c) the number of cases in which the
Director of Public Prosecutions has
10 advised under subsection (4) that a
prosecution should be brought or
should not be brought.
(7) No proceedings may be brought in respect of
a decision by the Authority to bring or not to
15 bring a prosecution following advice from
the Director of Public Prosecutions.
(8) In this section--
proceedings includes--
(a) the inquiry into, hearing and
20 determination of any question or
matter under this Act;
(b) seeking the grant of any relief or
remedy in the nature of certiorari,
prohibition, mandamus or quo
25 warranto, or the grant of a
declaration of right or an
injunction;
(c) seeking any order under the
Administrative Law Act 1978;
30 (d) any other action or proceeding.".
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136 New section 252N inserted
After section 252M of the Accident
Compensation Act 1985 insert--
"252N Supreme Court--limitation of jurisdiction
5 It is the intention of section 252AA as
inserted by section 135 of the Accident
Compensation Amendment Act 2009 to
alter or vary section 85 of the Constitution
Act 1975.".
10 137 Amendment of Emergency Management Act 1986
In section 28(3) of the Emergency Management
Act 1986--
(a) in paragraph (a), for "prepare a return to
work plan" substitute "plan the worker's
15 return to work";
(b) in paragraph (b), for "a return to work plan
prepared" substitute "planning the worker's
return to work".
138 Amendment of Juries Act 2000
20 In section 55(11) of the Juries Act 2000--
(a) in paragraph (a), "prepare a return to work
plan" substitute "plan the worker's return to
work";
(b) in paragraph (b), for "a return to work plan
25 prepared" substitute "planning the worker's
return to work".
139 Amendment of Long Service Leave Act 1992
For section 64(7)(a) and (b) of the Long Service
Leave Act 1992 substitute--
30 "(a) working in suitable employment (within the
meaning of section 5 of the Accident
Compensation Act 1985); or
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(b) absent from work because of a workplace
illness or injury and in receipt of any
compensation in the form of weekly
payments from the Authority for that illness
5 or injury--".
140 Amendment of Transport Accident Act 1986
In section 3(1) of the Transport Accident Act
1986, in the definition of vocational
rehabilitation service, for paragraph (k)
10 substitute--
"(k) return to work planning;".
141 Amendment of Victoria State Emergency Service
Act 2005
In section 47(10) of the Victoria State
15 Emergency Service Act 2005--
(a) in paragraph (a), "prepare a return to work
plan" substitute "plan the worker's return to
work";
(b) in paragraph (b), for "a return to work plan
20 prepared" substitute "planning the worker's
return to work".
__________________
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PART 14--MISCELLANEOUS
Division 1--Service Providers
142 False or misleading information
In section 248A(3) of the Accident
5 Compensation Act 1985--
(a) in paragraph (b), for "practitioner."
substitute "practitioner; or";
(b) after paragraph (b) insert--
"(c) a service, provision of goods or any
10 other matter referred to in section 99 in
relation to the costs of which a liability
arises, or may arise, under that
section.".
143 New sections 249AA--249BC inserted
15 For section 249B of the Accident Compensation
Act 1985 substitute--
"249AA Suspension of payments for services
(1) If the Authority reasonably suspects that a
person who provides a professional service
20 has committed a relevant offence, the
Authority may, subject to section 249BB, by
notice in writing given to the person,
determine that the payment of costs for a
professional service provided by that person
25 is suspended.
(2) If the Authority makes a determination under
subsection (1), the Authority must give a
copy of the notice to each self-insurer.
(3) A determination under subsection (1) has the
30 effect that the costs of professional services
provided by the person to whom the
determination relates are not payable by the
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Authority or a self-insurer during the period
of suspension, being the period beginning
when the notice under subsection (1) is given
and ending--
5 (a) if the person is charged with an offence
within 6 months after the notice is
given--
(i) when the court discharges the
person or finds that the person is
10 not guilty or finds the person
guilty (whether or not a conviction
is recorded); or
(ii) the prosecution is discontinued;
(b) in any other case--
15 (i) when the Authority determines
that it will not bring proceedings
against the person for the
suspected offence; or
(ii) on the expiration of the period of
20 6 months after the notice is
given--
whichever first occurs.
(4) If a person to whom a determination under
subsection (1) applies is convicted or found
25 guilty by a court of a relevant offence, the
court may, on its own motion or on the
application of the Authority, make one or
more of the following orders--
(a) an order that the costs of any
30 professional service, or any
professional service specified in the
order, provided by the person during
the period of suspension are not
payable;
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(b) an order that the person is a person for
the costs of whose professional services
the Authority is not liable to pay as
compensation under this Act during a
5 period specified in the order;
(c) if the Authority approved the person as
a person who provides a professional
service, any one or more of the
following--
10 (i) an order directing the Authority to
revoke its approval of the person
as a person who provides a
professional service;
(ii) an order specifying a period
15 within which the person is
precluded from making
application for approval as a
person who provides a
professional service.
20 (5) If the Authority gives a notice under this
section to a person whose conduct is
regulated by a professional body, the
Authority must give notice in writing to the
professional body of the suspension and the
25 grounds on which the payment of costs is
suspended.
(6) If the Authority gives a notice under this
section to a person who is a practitioner
within the meaning of Part VAA of the
30 Health Insurance Act 1973 of the
Commonwealth, the Authority must give
notice in writing to Medicare Australia of the
suspension and the grounds on which the
payment of costs is suspended.
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(7) In this section--
professional service means a professional
service as defined in section 248A(3)
that is provided to or in respect of a
5 worker in respect of an injury sustained
by the worker for which a claim for
compensation has been, or may be,
given, served or lodged under this Act;
relevant offence means--
10 (a) an offence against this Act; or
(b) an offence against the Crimes Act
1958 that occurs in connection
with a claim for compensation
under this Act.
15 249AB Effect of disqualifying offence
(1) If a person who provides or may provide a
professional service has been convicted or
found guilty of a disqualifying offence, the
Authority, subject to section 249BB, by
20 notice in writing given to the person--
(a) may determine either or both of the
following--
(i) that the costs of any professional
services provided in respect of any
25 worker are not payable by the
Authority or a self-insurer during
a period specified in the notice;
(ii) that the person is a person for the
costs of whose professional
30 services the Authority is not liable
during the period specified in the
notice; and
(b) if the Authority approved the person as
a provider of a professional service,
35 may revoke that approval.
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(2) If the Authority makes a determination by
notice in writing under subsection (1)(a) or
(b), the Authority--
(a) must give a copy of the notice to each
5 self-insurer; and
(b) if the person to whom the determination
applies is a person whose conduct is
regulated by a professional body, may
give a copy of the notice to the
10 professional body; and
(c) if the person to whom the determination
applies is a practitioner within the
meaning of Part VAA of the Health
Insurance Act 1973 of the
15 Commonwealth, may give a copy of the
notice to Medicare Australia.
(3) In this section--
disqualifying offence means an offence--
(a) punishable by imprisonment for a
20 term of 2 years or more or by a
maximum fine not less than the
fine for a level 7 offence specified
in Table 2 in section 109 of the
Sentencing Act 1991; or
25 (b) punishable by imprisonment for a
term of 2 years or more under a
law of another State, a territory or
the Commonwealth.
professional service has the same meaning
30 as in section 249AA.
249B Conduct of service providers
(1) This section applies if the Authority is
concerned about the adequacy,
appropriateness or frequency of any
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professional service provided by a person
(the relevant service).
(2) If there is a relevant body responsible for
regulating conduct of persons in the trade or
5 profession of the person who provided the
relevant service, the Authority--
(a) may notify the relevant body of, or
refer to the relevant body for
investigation or review, the conduct of
10 the person in accordance with the
relevant law and its rules and
regulations, together with relevant
matters of which the Authority is aware
pertaining to that conduct; and
15 (b) until the relevant body has investigated
or reviewed the conduct, may, by notice
in writing given to the person,
determine to suspend the payment of
costs of the relevant services provided
20 by that person, including the payment
of costs of the relevant services
provided before the notice is given; and
(c) if it gives a notice under paragraph (b),
must give a copy of the notice to each
25 self-insurer.
(3) If there is not a body responsible for
regulating conduct of a person in the trade or
profession of the person who provided the
relevant services the Authority, by notice in
30 writing given to the person, may do any one
or more of the following--
(a) warn the person that the Authority is
concerned about the person's conduct
and, if it continues, the Authority may,
35 by further notice in writing given to the
person, suspend payment of costs of the
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relevant services provided by that
person;
(b) determine to review the person's
conduct;
5 (c) suspend payment of costs of
professional services provided by the
person until it has completed its review.
(4) A suspension of payment of costs under
subsection (2) or (3) continues in force
10 until--
(a) the conduct of the person has been
reviewed under subsection (2) or (3); or
(b) the expiry of--
(i) in the case of a subsection (2), the
15 period of 6 months after the notice
of suspension is given or, if that
period is extended, that period as
so extended; or
(ii) in the case of a suspension under
20 subsection (3), the period of 6
months after the notice of
suspension is given under that
subsection--
whichever first occurs.
25 (5) If, following a review of which notice is
given under subsection (3)(b), the Authority
considers that the person, in providing the
relevant service, has acted in an
unreasonable or unprofessional manner, the
30 Authority, by notice in writing to the person,
may do any one or more of the following--
(a) suspend the person's approval as a
provider of the relevant services for a
period specified in the notice;
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(b) determine that the costs of any relevant
services provided during the suspension
are not payable by the Authority or a
self-insurer;
5 (c) revoke the person's approval as a
provider of the relevant services.
(6) If, under subsection (2), the Authority--
(a) has referred the conduct of a person to a
relevant body; and
10 (b) has given a notice of suspension to that
person; and
(c) forms the view that the relevant body's
review of the conduct will not be
completed within the period of
15 6 months--
the Authority may, by notice given to that
person, extend the period of the suspension
by one further period not exceeding
6 months.
20 (7) If a person to whom a notice is given under
subsection (2)(b), (3), (5) or (6) is a
practitioner within the meaning of Part VAA
of the Health Insurance Act 1973 of the
Commonwealth, the Authority--
25 (a) must give a copy of the notice to each
self-insurer; and
(b) may give a copy of the notice to
Medicare Australia.
(8) The Authority is not subject to any civil or
30 criminal liability for a decision to refer the
conduct of a person to a relevant body under
subsection (2)(a) or giving notice to
Medicare Australia under subsection (7).
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(9) Section 21A of the Evidence
(Miscellaneous Provisions) Act 1958
applies to a review by the Authority under
this section as if the Authority or a delegate
5 of the Authority were a commission
appointed by the Governor in Council to
conduct the review.
(10) Section 239 applies in respect of any liability
or entitlement under this section.
10 (11) In this section--
relevant body means has the same meaning
as in section 249BA but does not
include a court;
professional service has the same meaning
15 as in section 249AA.
249BA Findings of relevant bodies
(1) This section applies if the Authority is
concerned about the adequacy,
appropriateness or frequency of any
20 professional service provided by a person.
(2) If a relevant body finds or considers on
reasonable grounds, in relation to a person
who provides a professional service--
(a) that the person has, whether by act or
25 omission, engaged in unprofessional
conduct or professional misconduct; or
(b) that the ability of the person to practise
is affected because of the person's
physical or mental health or the
30 person's incapacity; or
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(c) that the person is not of good character
or is otherwise not a fit and proper
person--
the Authority may, subject to section 249BB,
5 by notice to that person, determine that the
person is a person for the provision of whose
professional services the Authority is not
liable to pay costs as compensation under
this Act, being professional services
10 provided to a worker after the determination
is made and during a period specified in the
determination.
(3) If the Authority makes a determination under
subsection (2)--
15 (a) the Authority must give a copy of the
determination to each self-insurer; and
(b) the Authority or a self-insurer is not
liable to pay the costs of the
professional services provided after the
20 day on which the notice of the
determination was made or, in the case
of a self-insurer, after the notice was
given.
(4) In this section--
25 professional service has the same meaning
as in section 249AA;
relevant body means--
(a) a responsible board within the
meaning of the Health
30 Professions Registration Act
2005;
(b) the Authority, Committee,
Director or Panel within the
meaning of section 81 of the
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Health Insurance Act 1973 of the
Commonwealth;
(c) a body responsible for regulating
conduct of persons in the trade or
5 profession of a person providing
professional services;
(d) Medicare Australia;
(e) a court or tribunal.
249BB Notice to be given before determination
10 made
(1) The Authority must, before making a
determination under section 249AA, 249AB,
249B (except subsection (2)(a), (3)(b) or (6))
or 249BA in relation to a person, give notice
15 in writing to the person--
(a) advising the person of the
determination it proposes to make; and
(b) inviting the person to make a
submission in writing to the Authority
20 within 28 days after the notice is given
as to why the determination should not
be made.
(2) If the Authority receives a submission within
the period referred to in subsection (1), it
25 must not make the determination unless it
has considered the submission.
249BC Authority may publish list of providers
subject to disciplinary action
(1) The Authority may cause to be published the
30 outcome of a determination of the Authority
or order of the court under section 249AA,
249AB, 249B or 249BA, together with the
name and business address of each person
who provides, or has provided, professional
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services to which the determination or order
applies.
(2) In this section--
professional service has the same meaning
5 as in section 249AA.".
144 Consequential amendment of sections 99 and 249C
(1) In section 99(1) of the Accident Compensation
Act 1985, after "shall be liable" insert ", unless a
determination or order referred to in section
10 249AA or a determination under section 249AB,
249B or 249BA applies,".
(2) In section 99(10) of the Accident Compensation
Act 1985, after "under this section" insert "or to
which a notice, determination or order referred to
15 in section 249AA, 249AB, 249B or 249BA
applies".
(3) After section 99(10) of the Accident
Compensation Act 1985, insert--
"(10A) Subsection (10) does not apply in relation to
20 a worker or a worker's legal personal
representative or a dependant in respect of
the payment or recovery of costs of
professional services within the meaning of
section 249AA provided by a person after
25 the worker, representative or dependant has
been informed in writing by the Authority or
self-insurer that a determination or order
against that person has been made under
section 249AA, 249AB, 249B or 249BA.".
30 (4) In section 249C(1) of the Accident
Compensation Act 1985, for "section 249B"
substitute "section 249AA, 249AB, 249B, 249BA
or 249BC".
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(5) After section 249C(1) of the Accident
Compensation Act 1985, insert--
"(1A) A reference in subsection (1) to a decision of
the Authority does not include a reference to
5 a decision of the Authority under section
249B(2)(a) to notify a relevant body or to
refer the conduct of a person for review.".
Division 2--Other Amendments
145 Definitions--WorkSafe Victoria
10 Insert the following definition in section 5(1) of
the Accident Compensation Act 1985--
"WorkSafe Victoria means the Victorian
WorkCover Authority.".
146 Definitions
15 After section 5(2) of the Accident Compensation
Act 1985 insert--
"(2A) A reference in this Act to the Authority is to
be construed as a reference to WorkSafe
Victoria.".
20 147 New section 18A inserted
After section 18 of the Accident Compensation
Act 1985 insert--
'18A Trading name
Despite anything to the contrary in the
25 Business Names Act 1962 or any other Act
or law, the Victorian WorkCover Authority
may carry on business under the name
"WorkSafe Victoria".'.
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148 Functions of the Authority [section 20]
(1) For section 20(1)(ta) of the Accident
Compensation Act 1985 substitute--
"(ta) develop and implement programs to provide
5 incentives to employers and to assist
employers in--
(i) implementing measures designed to
prevent injuries and diseases at
workplaces; and
10 (ii) improving occupational health and
safety and return to work results;".
(2) For section 20(1)(za) of the Accident
Compensation Act 1985 substitute--
"(za) collaborate with other bodies and provide
15 funds for the purposes of--
(i) developing national policies in relation
to occupational health and safety and
workers' compensation;
(ii) enhancing cooperation between
20 Australian jurisdictions in relation to
the health and safety of Australian
workers;
(iii) improving occupational health and
safety outcomes and workers'
25 compensation arrangements in
Australia;
(iv) harmonising workers' compensation
arrangements across the
Commonwealth, States and Territories;
30 (zb) carry out other functions specified under this
Act or any other Act.".
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(3) After section 20(2) of the Accident
Compensation Act 1985 insert--
"(3) The function of the Authority under
subsection (1)(ta) does not create any
5 obligation that gives rise to any liability of,
or a claim against, the Authority or its
agents.".
149 Additional powers of the Authority [section 20B]
In sections 20B(1)(a) and 20B(1)(b) of the
10 Accident Compensation Act 1985 for
"Division 6, 6A" substitute "Division 6A".
150 Authorised agents [section 23]
For sections 23(4) and 23(5) of the Accident
Compensation Act 1985 substitute--
15 "(4) The Authority may terminate the
appointment of an authorised agent who
contravenes or fails to comply with any of
the terms and conditions specified in the
instrument of appointment or a direction
20 given under subsection (2)(b).
(5) Subsection (4) does not in any way limit the
right of the Authority to take any other
action against a person who is, or has been,
an authorised agent and who has contravened
25 or failed to comply with any of the terms and
conditions specified in the instrument of
appointment or a direction given under
subsection (2)(b).".
151 Appeals [section 52]
30 Section 52(5) of the Accident Compensation Act
1985 is repealed.
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152 Indexation [section 100]
(1) In section 100(2A) of the Accident
Compensation Act 1985 after "subsection (2B)"
(where secondly occurring) insert "or that amount
5 as last varied in accordance with this section".
(2) In section 100(2BA) of the Accident
Compensation Act 1985 after "section 99(1)(aa)"
(where secondly occurring) insert "or that amount
as last varied in accordance with this subsection".
10 (3) In section 100(2C) of the Accident
Compensation Act 1985 after "subsection (2D)"
(where secondly occurring) insert "or that amount
as last varied in accordance with this subsection".
153 Liability to pay compensation--recovery
15 [section 125B]
(1) In section 125B(2) of the Accident
Compensation Act 1985 for "employers"
substitute "employers, self-insurers".
(2) In section 125B(3) of the Accident
20 Compensation Act 1985 omit "6 or".
154 Repeal of Division 6 of Part IV
Division 6 of Part IV of the Accident
Compensation Act 1985 is repealed.
155 Power to restrict or ban agents who engage in
25 prohibited conduct
In section 186(2)(a) of the Accident
Compensation Act 1985 for "section 181(5)"
substitute "section 181".
__________________
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PART 15--REVISION OF PENALTIES
Division 1--Accident Compensation Act 1985
156 Procedures before Conciliation Officers [section 56]
For the penalty at the foot of section 56(11) of the
5 Accident Compensation Act 1985 substitute--
"Penalty: In the case of a natural person,
180 penalty units or 6 months
imprisonment or both;
In the case of a body corporate,
10 900 penalty units.".
157 Offence to not comply with direction [section 58B]
For the penalty at the foot of section 58B of the
Accident Compensation Act 1985 substitute--
"Penalty: In the case of a natural person,
15 60 penalty units;
In the case of a body corporate,
300 penalty units.".
158 Employer to keep registry of injuries etc.
[section 101]
20 (1) At the foot of sections 101(1) and 101(2) of the
Accident Compensation Act 1985 insert--
"Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
25 300 penalty units.".
(2) For sections 101(3) and 101(4) of the Accident
Compensation Act 1985 substitute--
"(3) On receiving notice of an injury (otherwise
than as specified in section 102(3)) an
30 employer must cause the specified
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particulars of the injury to be entered in the
register.
Penalty: In the case of a natural person,
60 penalty units;
5 In the case of a body corporate,
300 penalty units.
(4) A worker or any person acting on the
worker's behalf may enter such particulars of
injury as are specified by the Authority in the
10 register of injuries.".
159 Responsibilities of employer [section 108]
(1) At the foot of section 108(1) of the Accident
Compensation Act 1985 insert--
"Penalty: In the case of a natural person,
15 40 penalty units;
In the case of a body corporate,
240 penalty units.".
(2) At the foot of section 108(3) of the Accident
Compensation Act 1985 insert--
20 "Penalty: In the case of a natural person,
40 penalty units;
In the case of a body corporate,
240 penalty units.".
160 Payment of weekly payments [section 114D]
25 (1) In section 114D(2) of the Accident
Compensation Act 1985 after "the worker" insert
"in accordance with subsection (6)".
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(2) At the foot of section 114D(2) of the Accident
Compensation Act 1985 insert--
"Penalty: In the case of a natural person,
60 penalty units;
5 In the case of a body corporate,
300 penalty units.".
161 Return to work [section 123]
At the foot of section 123(1) of the Accident
Compensation Act 1985 insert--
10 "Penalty: In the case of a natural person,
40 penalty units;
In the case of a body corporate,
240 penalty units.".
162 Offences [section 129M]
15 For the penalty at the foot of section 129M(2) of
the Accident Compensation Act 1985
substitute--
"Penalty: In the case of a natural person,
100 penalty units;
20 In the case of a body corporate,
500 penalty units.".
163 New section 177
After section 176 of the Accident Compensation
Act 1985 insert--
25 "177 Failure to comply with a provision of this
Part
(1) A non-WorkCover employer must not fail to
comply with a provision of this Part.
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(2) An employer who contravenes subsection (1)
is liable to a penalty of--
(a) if the employer is a natural person--
120 penalty units and, in the case of a
5 continuing offence, 60 penalty units for
each day the contravention continues
after a finding of guilt in relation to the
offence; or
(b) if the employer is a body corporate--
10 600 penalty units and, in the case of a
continuing offence, 300 penalty units
for each day the contravention
continues after a finding of guilt in
relation to the offence.
15 (3) For the purposes of subsection (2), an
offence is a continuing offence if a non-
WorkCover employer continues to fail to
comply with a provision of this Part after the
non-WorkCover employer is found guilty of
20 contravening subsection (1) in respect of that
provision.".
164 Offence of engaging in prohibited conduct
[section 181]
For the penalty at the foot of section 181 of the
25 Accident Compensation Act 1985 substitute--
"Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.".
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165 Consequences of prohibited conduct for legal
practitioners [section 183]
For the penalty at the foot of section 183(1) of the
Accident Compensation Act 1985 substitute--
5 "Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.".
166 Legal practitioner and agents can be requested to
10 certify as to prohibited conduct [section 184]
For the penalty at the foot of section 184(5) of the
Accident Compensation Act 1985 substitute--
"Penalty: In the case of a natural person,
60 penalty units;
15 In the case of a body corporate,
300 penalty units.".
167 Power to restrict or ban agents who engage in
prohibited conduct [section 186]
For the penalty at the foot of section 186(3) of the
20 Accident Compensation Act 1985 substitute--
"Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.".
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168 Warrants to enter and search [section 240A]
For section 240A(4) of the Accident
Compensation Act 1985 substitute--
"(4) A person must not obstruct or hinder a
5 person employed or acting in the execution
or under the authority of a warrant issued
under subsection (1) or aiding or assisting in
its execution.
Penalty: In the case of a natural person,
10 60 penalty units;
In the case of a body corporate,
300 penalty units.
(5) A person must not refuse to permit a search
or seizure authorised by a warrant issued
15 under subsection (1).
Penalty: In the case of a natural person,
100 penalty units or 6 months
imprisonment or both;
In the case of a body corporate,
20 600 penalty units.
(6) A person must not assault, or attempt to
assault, a person employed or acting in the
execution or under the authority of a warrant
issued under subsection (1) or aiding or
25 assisting in its execution.
Penalty: In the case of a natural person,
240 penalty units or 2 years
imprisonment or both;
In the case of a body corporate,
30 1200 penalty units.".
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169 New section 241 substituted
For section 241 of the Accident Compensation
Act 1985 substitute--
"241 Offences relating to a person exercising
5 powers under section 239 or 240
(1) A person must not obstruct or hinder a
person exercising powers under section 239
or 240.
Penalty: In the case of a natural person,
10 60 penalty units;
In the case of a body corporate,
300 penalty units.
(2) A person must not, without reasonable
excuse, refuse or fail to comply with a
15 requirement made by a person exercising
powers under section 239 or 240.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
20 300 penalty units.
(3) A person must not assault, intimidate or
threaten, or attempt to assault, intimidate or
threaten, a person exercising powers under
section 239 or 240.
25 Penalty: In the case of a natural person,
240 penalty units or 2 years
imprisonment or both;
In the case of a body corporate,
1200 penalty units.".
30 170 Offences [section 242]
Sections 242(4), 242(7), 242(9), 242(10), 242(11)
and 242(12) of the Accident Compensation Act
1985 are repealed.
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Part 15--Revision of Penalties
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171 Bribery [section 248AA]
(1) The penalty at the foot of section 248AA of the
Accident Compensation Act 1985 is repealed.
(2) At the foot of section 248AA(1) and 248AA(2) of
5 the Accident Compensation Act 1985 insert--
"Penalty: In the case of a natural person,
1000 penalty units or 2 years
imprisonment;
In the case of a body corporate,
10 5000 penalty units.".
172 Fraud [section 248]
For the penalty at the foot of section 248 of the
Accident Compensation Act 1985 substitute--
"Penalty: In the case of a natural person,
15 1000 penalty units or 2 years
imprisonment;
In the case of a body corporate,
5000 penalty units.".
173 False or misleading information [section 248A]
20 (1) For the penalty at the foot of section 248A(1) of
the Accident Compensation Act 1985
substitute--
"Penalty: In the case of a natural person,
180 penalty units or 6 months
25 imprisonment or both;
In the case of a body corporate,
900 penalty units.".
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(2) For the penalty at the foot of section 248A(2) of
the Accident Compensation Act 1985
substitute--
"Penalty: In the case of a natural person,
5 180 penalty units or 6 months
imprisonment or both;
In the case of a body corporate,
900 penalty units.".
174 False information [section 249]
10 (1) For the penalty at the foot of section 249(1) of the
Accident Compensation Act 1985 substitute--
"Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
15 600 penalty units.".
(2) For the penalty at the foot of section 249(2) of the
Accident Compensation Act 1985 substitute--
"Penalty: In the case of a natural person,
180 penalty units or 6 months
20 imprisonment or both;
In the case of a body corporate,
900 penalty units.".
175 Obstructing officers [section 250]
For the penalty at the foot of section 250 of the
25 Accident Compensation Act 1985 substitute--
"Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.".
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Part 15--Revision of Penalties
s. 176
176 New section 251 substituted
For section 251 of the Accident Compensation
Act 1986 substitute--
"251 Undertakings
5 (1) The Authority may accept a written
undertaking given by a person in connection
with a matter relating to a contravention, or
an alleged contravention, of a relevant
provision.
10 (2) The undertaking must specify--
(a) the action proposed to be taken by the
person; and
(b) the timeframe in which the proposed
action is to be taken; and
15 (c) any other relevant matter.
(3) The person may, with the Authority's
consent, withdraw or vary the undertaking at
any time.
(4) A proceeding may not be brought against the
20 person who has given the undertaking for an
offence in relation to the matter referred to in
subsection (1).
(5) If the Authority considers that the person
who gave the undertaking has breached any
25 of its terms, the Authority may apply to the
Magistrates' Court for an order under
subsection (6).
(6) If the Magistrates' Court is satisfied that the
person has breached a term of the
30 undertaking, the Magistrates' Court may
make--
(a) an order that the person comply with
the undertaking or take specified action
to comply with the undertaking; or
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Part 15--Revision of Penalties
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(b) any other order that the Magistrates'
Court considers appropriate.
(7) For the purposes of this section, a relevant
provision means a provision of this Act or
5 the Accident Compensation (WorkCover
Insurance) Act 1993 for which the penalty
for the contravention of the provision is--
(a) in the case of a natural person, no more
than 180 penalty units; or
10 (b) in the case of a body corporate, no
more than 900 penalty units.".
177 New section 251A inserted
After section 251 of the Accident Compensation
Act 1985 insert--
15 "251A Adverse publicity orders
(1) If a court convicts a person, or finds a person
guilty, of an offence against this Act, the
regulations, the Accident Compensation
(WorkCover Insurance) Act 1993 or
20 regulations made under that Act, the court
may make an order (an adverse publicity
order) in relation to the offender requiring
the offender--
(a) to take either or both of the following
25 actions within the period specified in
the order--
(i) to publicise, in the way specified
in the order, the offence, its
consequences, the penalty
30 imposed and any other related
matter;
(ii) to notify a specified person or
specified class of persons, in the
way specified in the order, of the
35 offence, its consequences, the
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Part 15--Revision of Penalties
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penalty imposed and any other
related matter; and
(b) to give the Authority, within 7 days
after the end of the period specified in
5 the order, evidence that the action or
actions were taken by the offender in
accordance with the order.
(2) The court may make an adverse publicity
order on its own initiative or on the
10 application of the prosecutor.
(3) If the offender fails to give evidence to the
Authority in accordance with
subsection (1)(b), the Authority, or a person
authorised in writing by the Authority, may
15 take the action or actions specified in the
order.
(4) However, if--
(a) the offender gives evidence to the
Authority in accordance with
20 subsection (1)(b); and
(b) despite that evidence, the Authority is
not satisfied that the offender has taken
the action or actions specified in the
order in accordance with the order--
25 the Authority may apply to the court for an
order authorising the Authority, or a person
authorised in writing by the Authority, to
take the action or actions.
(5) If the Authority or a person authorised in
30 writing by the Authority takes an action or
actions in accordance with subsection (3) or
applies for an order under subsection (4), the
reasonable expenses of taking the action or
actions, or of applying for the order, are a
35 debt due by the offender to the Authority.
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(6) The court must not make an adverse
publicity order unless it is satisfied that the
costs of complying with the order do not
exceed the maximum penalty amount that
5 the court may impose on the offender for the
offence concerned.
(7) The court may make an adverse publicity
order in relation to an offender in addition to
or instead of--
10 (a) imposing a penalty on the offender; or
(b) making any other order that the court
may make in relation to the offence.".
Division 2--Accident Compensation (WorkCover
Insurance) Act 1993
15 178 Compulsory WorkCover insurance [section 7]
For the penalty at the foot of section 7(1) of the
Accident Compensation (WorkCover
Insurance) Act 1993 substitute--
"Penalty: In the case of a natural person,
20 240 penalty units;
In the case of a body corporate,
1200 penalty units.".
179 Issue and renewal of WorkCover insurance policies
[section 10]
25 For the penalty at the foot of section 10(1) of the
Accident Compensation (WorkCover
Insurance) Act 1993 substitute--
"Penalty: In the case of a natural person,
180 penalty units;
30 In the case of a body corporate,
900 penalty units.".
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180 Inspection of policies [section 12]
(1) For the penalty at the foot of section 12(3) of the
Accident Compensation (WorkCover
Insurance) Act 1993 substitute--
5 "Penalty: In the case of a natural person,
40 penalty units;
In the case of a body corporate,
200 penalty units.".
(2) For the penalty at the foot of section 12(4) of the
10 Accident Compensation (WorkCover
Insurance) Act 1993 substitute--
"Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
15 300 penalty units.".
181 Estimate of rateable remuneration [section 18]
For the penalty at the foot of section 18(2) of the
Accident Compensation (WorkCover
Insurance) Act 1993 substitute--
20 "Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.".
182 Revised estimates of rateable remuneration
25 [section 20]
(1) At the foot of section 20(1) of the Accident
Compensation (WorkCover Insurance) Act
1993 insert--
"Penalty: In the case of a natural person,
30 120 penalty units;
In the case of a body corporate,
600 penalty units.".
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(2) At the foot of section 20(2) of the Accident
Compensation (WorkCover Insurance) Act
1993 insert--
"Penalty: In the case of a natural person,
5 120 penalty units;
In the case of a body corporate,
600 penalty units.".
(3) Section 20(3) of the Accident Compensation
(WorkCover Insurance) Act 1993 is repealed.
10 183 Certificate of rateable remuneration [section 23]
For section 23(3) of the Accident Compensation
(WorkCover Insurance) Act 1993 substitute--
"(3) An employer must comply with a notice
received under subsection (1) or (2).
15 Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.
(3A) For the purposes of subsection (3), an
20 employer does not comply with a notice
received under subsection (1) or (2) if the
rateable remuneration specified in a certified
statement provided by the employer is
incorrect.".
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Part 15--Revision of Penalties
s. 184
184 Information and records to be supplied by insurers
[section 39]
For section 39(4) of the Accident Compensation
(WorkCover Insurance) Act 1993 substitute--
5 "(4) An insurer must comply with a requirement
under this section in the manner and within
the time specified by the requirement.
Penalty: In the case of a natural person,
100 penalty units;
10 In the case of a body corporate,
500 penalty units.
(4A) It is a defence to a charge of an offence
against subsection (4) for the defendant to
prove that it was not within the power of the
15 defendant to comply with the requirement.".
185 Payment of premiums [section 42]
For the penalty at the foot of section 42(1) of the
Accident Compensation (WorkCover
Insurance) Act 1993 substitute--
20 "Penalty: In the case of a natural person,
240 penalty units;
In the case of a body corporate,
1200 penalty units.".
186 Claims against section 55(2)(a) or 55(2)(d)
25 [section 57]
(1) At the foot of section 57(2) of the Accident
Compensation (WorkCover Insurance) Act
1993 insert--
"Penalty: In the case of a natural person,
30 60 penalty units;
In the case of a body corporate,
300 penalty units.".
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s. 187
(2) Section 57(5) of the Accident Compensation
(WorkCover Insurance) Act 1993 is repealed.
187 Authority may require employer to provide
information [section 60]
5 At the foot of section 60(2) of the Accident
Compensation (WorkCover Insurance) Act
1993 insert--
"Penalty: In the case of a natural person,
60 penalty units;
10 In the case of a body corporate,
300 penalty units.".
188 Recovery of premium or penalty
After section 68(2) of the Accident
Compensation (WorkCover Insurance) Act
15 1993 insert--
"(2A) For the purposes of section 5 of the
Limitations of Actions Act 1958, the date
on which a cause of action accrues in respect
of the recovery of a premium or penalty
20 imposed under this Act is--
(a) if the Authority and employer have
entered into a payment arrangement in
respect of the premium or penalty, any
day or date on which the premium or
25 penalty is payable under that
arrangement; or
(b) otherwise, the date specified in a notice
given by the Authority under Part 2 as
the date on which the premium or
30 penalty is payable.".
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189 Books and accounts to be preserved [section 69]
For the penalty at the foot of section 69(1) of the
Accident Compensation (WorkCover
Insurance) Act 1993 substitute--
5 "Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.".
190 Warrants to enter and search [section 70]
10 For section 70(4) of the Accident Compensation
(WorkCover Insurance) Act 1993 substitute--
"(4) A person must not obstruct or hinder a
person employed or acting in the execution
or under the authority of a warrant issued
15 under subsection (1) or aiding or assisting in
its execution.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
20 300 penalty units.
(5) A person must not refuse to permit a search
or seizure authorised by a warrant issued
under subsection (1).
Penalty: In the case of a natural person,
25 100 penalty units or 6 months
imprisonment or both;
In the case of a body corporate,
600 penalty units.
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Part 15--Revision of Penalties
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(6) A person must not assault, or attempt to
assault, a person employed or acting in the
execution or under the authority of a warrant
issued under subsection (1) or aiding or
5 assisting in its execution.
Penalty: In the case of a natural person,
240 penalty units or 2 years
imprisonment or both;
In the case of a body corporate,
10 1200 penalty units.".
__________________
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Part 16--Transitional Provisions
s. 191
PART 16--TRANSITIONAL PROVISIONS
191 New Division 12 inserted in Part IX
After Division 11 of Part IX of the Accident
Compensation Act 1985 insert--
5 "Division 12--Accident Compensation
Amendment Act 2009
301 Definitions
(1) In this Division--
amending Act means the Accident
10 Compensation Amendment Act 2009;
amending provision means a provision of
the amending Act specified in a section
of this Division;
commencement date means the date on
15 which the amending provision comes
into operation.
(2) Nothing in this Division limits or otherwise
affects the operation of the Interpretation of
Legislation Act 1984.
20 302 Section 5A
Section 5A, as amended by sections 4, 5, 6, 7
and 8 of the amending Act, applies in respect
of a claim first received by the Authority or
self-insurer on or after the commencement
25 date.
303 Section 14(3)
Sections 14(3), 14AA and 16A, as inserted
by sections 9 and 10 of the amending Act,
apply in relation to claim for compensation
30 given, served or lodged on or after the
commencement date and premiums under the
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Part 16--Transitional Provisions
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Accident Compensation (WorkCover
Insurance) Act 1993 payable on or after that
date.
304 Section 82
5 Section 82, as amended by sections 12, 13
and 14 of the amending Act, applies in
respect of a claim, first given, served or
lodged on or after the commencement date.
305 Sections 82A-82D
10 Sections 82A, 82B, 82C and 82D of the
Accident Compensation Act 1985, as
inserted by section 15 of the amending Act,
apply in respect of a claim first given, served
or lodged on or after the commencement
15 date.
306 Section 103
Section 103(1), (2), (3) and (4), as
substituted by section 19(1) of the amending
Act, applies in respect of a claim, first given,
20 served or lodged on or after the
commencement date.
307 Sections 105 and 108
Sections 105 and 108, as amended by
section 20(1), (2), (3) and (4) of the
25 amending Act, applies in respect of a claim
first received on or after the commencement
date.
308 Sections 108(4)
Section 10894), as substituted by
30 section 20(5) of the amending Act, applies in
respect of a claim first given to, or served on,
an employer on or after the commencement
date.
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Part 16--Transitional Provisions
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309 Section 109
Section 109, as inserted by section 21 of the
amending Act, applies in respect of a claim,
first received by the Authority or self-insurer
5 on or after the commencement date.
310 Sections 242AA-242AF
Sections 242AA, 242AB, 242AC, 242AD,
242AE and 242AF, as inserted by section 23
of the amending Act, apply in respect of
10 discriminatory conduct engaged in on or
after the commencement date.
311 Section 55AA
Section 55AA, as inserted by section 29 of
the amending Act, applies in respect of a
15 medical question arising in a dispute on or
after the commencement date.
312 Section 93CA
Section 93CA, as inserted by section 31 of
the amending Act, applies in respect of an
20 injury occurring on or after the
commencement date.
313 Section 93CD
(1) Despite section 4A, section 93CD(1), (2)
and (3), as substituted by section 34 of the
25 amending Act applies in respect of an injury
occurring on or after the commencement
date.
(2) Section 93CD(4) and (5)(a), as substituted by
section 34 of the amending Act, applies in
30 respect of a claim relating to an injury
occurring on or after the commencement
date.
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314 Section 93CDA
Section 93CDA, as inserted by section 35 of
the amending Act, applies in respect of a
claim relating to an injury occurring on or
5 after the commencement date.
315 Section 93CE
Section 93CE, as inserted by section 37 of
the amending Act, applies in respect of
injuries occurring on or after the
10 commencement date.
316 Section 92B
Section 92B, as inserted by section 39(2) of
the amending Act, applies in respect of
claims given, served or lodged on or after the
15 commencement date.
317 Sections 96 and 96A
Sections 96 and 96A, as amended by
sections 40 and 41 of the amending Act,
applies in relation to an injury occurring on
20 or after the commencement date.
318 Section 109AA
Section 109AA, as inserted by section 43 of
the amending Act, applies to a decision to
accept or reject a claim first received by the
25 Authority on or after the commencement
date.
319 Section 114
Section 1114(2)(ii), (2A), (2B) and (2C), as
substituted or inserted by section 45 of the
30 amending Act, applies to a claim whether
made before , on or after the commencement
date.
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320 Section 91
Section 91, as amended by section 53 of the
amending Act, applies in respect of a claim
under section 98C or 98E whether made
5 before, on or after the commencement date if
the worker attends the first impairment
assessment for the purposes of section
104B(2)(b) on or after the commencement
date.
10 321 Section 98C
Section 98C, as amended by section 54 of
the amending Act, applies in respect of a
claim under section 98C whether made
before, on or after the commencement date if
15 the worker attends the first impairment
assessment for the purposes of section
104B(2)(b) on or after the commencement
date.
322 Section 43 (Jurisdiction of Magistrates'
20 Court)
Section 43, as amended by section 75 of the
amending Act, applies in respect of
proceedings commenced under this Act on or
after the commencement date.
25 323 Section 45 (Medical questions)
Section 45, as amended by section 76 of the
amending Act, applies only in respect of
proceedings commenced on or after the
commencement date.
30 324 Section 49 (Certain proceedings referred
for conciliation)
Section 49, as amended by section 78 of the
amending Act, applies in respect of
proceedings commenced on or after the
35 commencement date.
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325 Section 134AB (Actions for damages)
(1) Section 134AB, as amended by sections
57(2) and (3) of the amending Act, applies in
respect of a serious injury application which
5 is to be determined or resolved on or after
the commencement date.
(2) Section 134AB, as amended by sections
57(4) and (5) of the amending Act, applies in
respect of any proceedings to recover
10 damages in section 134AB where the
initiating serious injury application was
served on or after the commencement date.
(3) Section 134AB, as amended by section 57(7)
of the amending Act, applies in respect of a
15 serious injury application which is to be
determined or resolved on or after the
commencement date.
(4) Section 134AB, as amended by section 57(8)
of the amending Act, applies in respect of
20 serious injury application which is to be
determined or resolved on or after the
commencement date.
326 Section 134ABAA (Determination of
serious injury application following death
25 of worker)
Section 134ABAA, as inserted by section 58
of the amending Act, applies to applications
made under section 134AB(4) that have not
been resolved or determined immediately
30 before the commencement date.
327 Section 135A (Actions for damages)
Section 135A, as amended by section 61 of
the amending Act, applies in respect of a
claim for damages in respect of which a
35 determination as to whether the injury is a
serious injury has not been made or deemed
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to have been made immediately before the
commencement date.
328 Section 135BBA (Actions by terminally ill
workers continued after death of worker)
5 Section 135BBA, as inserted by section 62
of the amending Act, applies in respect of
proceedings to recover damages in
accordance with section 134AB in reliance
on section 135BA that have not been
10 determined or resolved immediately before
the commencement date.
329 Section 92 (Compensation for death of a
worker)
Section 92, as amended by section 67 of the
15 amending Act, applies in respect of--
(a) a claim for compensation made on or
after the commencement date;
(b) claims for compensation that have not
been determined by a court
20 immediately before the commencement
date.
330 Section 92A (Revised compensation for
death of worker)
(1) Section 92A as amended by section 68(1) of
25 the amending Act applies in respect of--
(a) a claim for compensation made on or
after the commencement date;
(b) a claim for compensation that has not
been determined by a Court
30 immediately before the commencement
date.
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(2) The definition of dependent child in
section 92A, as amended by section 68(2) of
the amending Act, applies to claims for
compensation to which sections 92A and
5 92B apply, made on or after the
commencement date.
(3) Section 92A, as amended by section 68(3) of
the amending Act, applies in respect of
claims for compensation to which
10 section 92A applies that have not been
determined by the Court immediately before
the commencement date.
(4) Section 92A, as amended by section 68(4) of
the amending Act, applies in respect of a
15 claim for compensation that has not been
determined by a court immediately before
the commencement date.
(5) Section 92A, as amended by section 68(5),
(6), (7), (8), (9) and (10) of the amending
20 Act, applies in respect of a claim for
compensation that has not been determined
by a Court immediately before the
commencement date.
(6) If subsection (5) applies to a claim, the
25 interest to which a claimant is entitled on the
amount of compensation payable under that
claim is to be determined as follows--
(a) interest at the prescribed rate on the
relevant maximum sum set out in
30 section 92A(4), (5), (6), (7), (8), (8A),
(8B) or (9) immediately before the
commencement date of section 68(5),
(6), (7), (8), (9) and (10) of the
amending Act, for the period beginning
35 on the date the claim for compensation
was made to immediately before the
commencement date; and
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(b) interest at the prescribed rate on the
relevant maximum sum set out in
section 92A as amended by section
68(5), (6), (7), (8), (9) and (10) of the
5 amending Act, for the period beginning
on the commencement date to the date
the claim is determined by the court or
the Authority or self-insurer (as
appropriate).
10 331 Section 92AA (Re-imbursement of
expenses incurred by non-dependant
family members of a deceased worker)
Section 92AA, as inserted by section 69 of
the amending Act, applies in respect of
15 deaths that occur on and from the
commencement date.
332 Section 92B (Weekly pension for
dependants of worker who dies)
Section 92B, as amended by section 70 of
20 the amending Act, applies in respect of--
(a) a claim for compensation under
section 92B made on or after the
commencement date;
(b) a claim for compensation under
25 section 92B that exists immediately
before the commencement date.
333 Section 92D (Provisional payment)
Section 92D, as inserted by section 71 of the
amending Act, applies in respect of deaths
30 that occur on and from the commencement
date.
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334 Section 5 (Definition of medical question)
The definition of medical question in
section 5(1), as amended by section 74(2) of
the amending Act, applies only to a referral
5 of a medical question to a Medical Panel
made on or after the commencement date.
335 Section 52D (Appointment of Conciliation
Officers)
Section 52D, as amended by section 79 of
10 the amending Act, only applies in respect of
appointments of a person as a Conciliation
Officer made on or after the commencement
date.
336 Sections 52F and 52FA (Senior
15 Conciliation Officer and data to be
collected by Senior Conciliation Officer)
Sections 52F and 52FA, as inserted by
section 80 of the amending Act, apply to a
Senior Conciliation Officer on and after the
20 commencement date.
337 Section 52I (Removal from office)
Section 52I, as amended by section 81 of the
amending Act, applies to the removal or
suspension of a Conciliation Officer on and
25 after the commencement date.
338 Section 55AB (Production and disclosure
of information)
Section 55AB, as inserted by section 82 of
the amending Act, applies in respect of
30 disputes referred to conciliation on and after
the commencement date.
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339 Section 56 (Procedures before
Conciliation Officers)
Section 56, as amended by section 83 of the
amending Act, applies in respect of disputes
5 referred to conciliation on and after the
commencement date.
340 Section 57 (Conciliation of disputes)
Section 57, as amended by section 84 of the
amending Act, applies in respect of disputes
10 referred to conciliation on and after the
commencement date.
341 Section 59 (Disputes relating to weekly
payments)
Section 59, as amended by section 85 of the
15 amending Act, applies in respect of--
(a) disputes that have been referred to
conciliation and that have not been the
subject of a general direction under
section 59(9) immediately before the
20 commencement date;
(b) disputes referred to conciliation on and
after the commencement date.
342 Section 62 (Costs)
Section 62, as amended by section 87 of the
25 amending Act, applies in respect of disputes
that have been referred to conciliation on and
after the commencement date.
343 Section 63 (Establishment and
constitution)
30 Section 63, as amended by section 88 of the
amending Act, applies in respect of referrals
made to a Medical Panel on and after the
commencement date.
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344 Section 65 (Procedures and powers)
Section 65, as amended by section 89 of the
amending Act, applies in respect of any
medical question referred to a Medical Panel
5 on and after the commencement date.
345 Section 68 (Opinions)
Section 68, as amended by section 90 of the
amending Act, applies in respect of any
opinion given by a Medical Panel under
10 section 68 on and after the commencement
date.
346 Division 3A of Part IV (Employer
obligations)
Division 3A of Part IV, as inserted by
15 section 91 of the amending Act, applies in
respect of a claim for compensation in
respect of an injury or death under this Act
that is accepted by the Authority on and after
the commencement date.
20 347 Sections 5(9A) and (10) and 5C to 5E
(Remuneration)
Sections 5(9A), 5(10), 5C, 5D and 5E, as
amended by sections 94 and 95 of the
amending Act, apply in respect of the
25 calculation of premium on or after the
commencement date.
348 Section 138 (Indemnity by third party)
Section 138(4A), as inserted by section 121
of the amending Act, applies only to
30 contracts entered into on or after the
commencement date.
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349 Section 138 (Indemnity by third party)
Sections 138(7), 138(8) and 138(9), as
inserted by section 122 of the amending Act,
apply in respect of any right of indemnity
5 that the Authority, self-insurer or employer
has, regardless of when that right came into
existence, unless before the commencement
date--
(a) judgment for indemnity under
10 section 138 has been given or entered;
or
(b) there has been a settlement or
compromise of the claim for indemnity.
350 Part VIIB (Return to Work)
15 (1) If, immediately before the commencement
date of section 129 of the amending Act, an
employer is complying with the employer's
obligations under Part VI, on and after the
commencement date until 31 March 2011,
20 the employer is deemed to be complying
with Part VIIB provided the employer
continues to comply with the employer's
obligations under Part VI as it was before its
repeal.
25 (2) Sections 200 to 204, as inserted by
section 129 of the amending Act, apply to a
worker on and from the commencement date,
whether or not the employer of the worker is
required to comply with Part VIIB from that
30 date.
(3) Section 194(1) in Part VIIB, as inserted by
section 129 of the amending Act, applies in
respect of a claim given, served or lodged--
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(a) if a section 105 medical certificate has
been given served or lodged before the
commencement date--on or after the
commencement date;
5 (b) before the commencement date if the
relevant certificate did not accompany
the claim as required by section
103(1)(b).
(4) Sections 194(2), 195 and 196 in Part VIIB,
10 as inserted by section 129 of the amending
Act, apply in respect of a claim given, served
or lodged--
(a) on or after the commencement date; or
(b) before the commencement date if the
15 claim was accepted before the
commencement date; or
(c) before the commencement date if the
claim was neither accepted nor rejected
before the commencement date; or
20 (d) before the commencement date if the
claim was rejected before the
commencement date but subsequently
accepted after the commencement date.
(5) If, immediately before the commencement
25 date, an employer is complying with
sections 156(2)(a)(i) and 160, on and from
the commencement date, the employer is
deemed to be complying with section 195 in
Part VIIB, as inserted by section 129 of the
30 amending Act, until 31 March 2011.
(6) Sections 194(2), 195 and 196 in Part VIIB,
as inserted by section 129 of the amending
Act, apply in respect of a claim--
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(a) if a section 105 certificate has been
given, served or lodged on or after the
commencement date; or
(b) if, before the commencement date, the
5 relevant certificate did not accompany a
claim as required by section 103(1)(b).
(7) If, immediately before the commencement
date, an employer is complying with
section 160, on and from the commencement
10 date, the employer is deemed to be
complying with section 196 in Part VIIB, as
inserted by section 129 of the amending Act,
until 31 March 2011.
(8) If, immediately before the commencement
15 date, an employer has nominated a return to
work co-ordinator under section 156(2) or
158(1), on and from the commencement date
the employer is deemed to be complying
with section 197(1), (2), (3) and (4) in
20 Part VIIB, as inserted by section 129 of the
amending Act, until 31 March 2011.
(9) If, immediately before the commencement
date, an employer maintains an occupational
rehabilitation program under sections 156,
25 on and from the commencement date, the
employer is deemed to be complying with
section 198 in Part VIIB, as inserted by
section 129 of the amending Act, until
31 March 2011.
30 (10) Despite the repeal of section 155A by section
131 of the amending Act, subsections (1) and
(3) of section 155A continue to apply to
claims lodged before the commencement
date.
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351 Section 20E (Power to give advice on
compliance)
Section 20E, as inserted by section 132 of
the amending Act, applies in respect of a
5 person's obligations arising under this Act on
and after the commencement date.
352 Retrospective operation of certain
instruments of delegation
(1) This section applies to the following
10 instruments--
(a) the instrument of delegation executed
by the Authority on 17 November 2009
in respect of Royal Automobile Club of
Victoria (RACV) Limited
15 (ACN 004 060 833) purporting to take
effect from 4.00 p.m. on 16 December
1994;
(b) the instrument of delegation executed
by the Authority on 17 November 2009
20 in respect of Hanson Australia
(Holdings) Proprietary Limited
(ACN 090 994 657) purporting to take
effect from midnight on 30 November
2000;
25 (c) the instrument of delegation executed
by the Authority on 17 November 2009
in respect of Burns, Philp & Company
Pty Limited (ACN 000 000 359)
purporting to take effect from 4.00 p.m.
30 on 9 July 2004;
(d) the instrument of delegation executed
by the Authority on 17 November 2009
in respect of Goodman Fielder Limited
(ACN 116 399 430) purporting to take
35 effect from 4.00 p.m. on 23 December
2005;
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(e) the instrument of delegation executed
by the Authority on 17 November 2009
in respect of Transfield Services
Limited (ACN 000 484 417) purporting
5 to take effect from 4.00 p.m. on
1 March 2007;
(f) the instrument of delegation executed
by the Authority on 17 November 2009
in respect of Crown Limited
10 (ACN 125 709 953) purporting to take
effect from midnight on 9 December
2007.
(2) Each instrument of delegation has effect
from the purported date by virtue of this
15 section.
353 Section 23
Sections 23(4) and 23(5) as amended by
section 150 of the amending Act apply only
in respect of a contravention of, or a failure
20 to comply with, terms and conditions
occurring on or after the commencement
date.
354 Application for approval as self-insurer
If, on the commencement date of section 126
25 of the amending Act, an application for
approval as a self-insurer is yet to be
determined by the Authority, sections 141,
142(1), 142(2), 142(4)(b)(ii) and 144 as in
force immediately before that date apply to
30 that application.
355 Terms and conditions of approval
Section 142A of Part V, as substituted by
section 126 of the amending Act, applies to
all self-insurers on and from the
35 commencement date regardless of when their
approval as a self-insurer took effect.
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356 Period of approval and review of approval
as self-insurer
Sections 144 and 145 of Part V, as
substituted by section 126 of the amending
5 Act, apply to all self-insurers on and from
the commencement date regardless of when
their approval as a self-insurer took effect.
357 Revocation of approval [sections 145A
and 145B]
10 Sections 145A and 145B of Part V, as
substituted by section 126 of the amending
Act, apply to all self-insurers on and from
the commencement date regardless of when
their approval as a self-insurer took effect.
15 358 Payment of contributions and submission
of or return by self-insurer
Sections 146 and 146A of Part V, as
substituted by section 126 of the amending
Act, apply to all self-insurers on and from
20 the commencement date regardless of when
their approval as a self-insurer took effect.
359 Liability to pay compensation
Section 147 of Part V, as substituted by
section 126 of the amending Act, applies to
25 all self-insurers on and from the
commencement date regardless of when their
approval as a self-insurer took effect.
360 Guarantee of liabilities
Section 148 of Part V, as substituted by
30 section 126 of the amending Act, applies to
all self-insurers whose liabilities are assessed
on or from the commencement date.
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361 Movement from scheme insurance to self-
insurance
Section 150 of Part V, as substituted by
section 126 of the amending Act, applies to
5 any employer approved as a self-insurer on
and from the commencement date.
362 Acquisition of scheme-insured body
corporate by self-insurer
Section 150A of Part V, as substituted by
10 section 126 of the amending Act, applies in
respect of any acquisition of a scheme-
insured by a body corporate occurring on or
from the commencement date.
363 Employer ceases to be a self-insurer
15 (1) Section 151 of Part V, as substituted by
section 126 of the amending Act, applies to
any employer that ceases to be a self-insurer
on or from the commencement date.
(2) Sections 151A, 151B, 151C, 151D and 151E
20 of Part V, as substituted by section 126 of
the amending Act, apply in respect of the
assessment of tail claim liabilities of an
employer to which subsection (1) applies.
364 Sections 249AA, 249AB, 249B and 249BA
25 Sections 249AA, 249AB, 249B and 249BA,
as inserted or substituted by section 143 of
the amending Act, apply in relation to
services provided, or that may be provided,
to a worker on or after the commencement
30 date.".
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192 Consequential amendment
After the heading to Part 7 of the Accident
Compensation (WorkCover Insurance) Act
1993 insert--
5 "Division 1--General".
193 New Division 2 inserted in Part 7
After Division 1 of Part 7 of the Accident
Compensation (WorkCover Insurance) Act
1993 insert--
10 "Division 2--Accident Compensation
Amendment Act 2009
78 Definitions
(1) In this Division--
amending Act means the Accident
15 Compensation Amendment Act 2009;
amending provision means a provision of
the amending Act specified in a section
of this Division;
commencement date means the date on
20 which the amending provision comes
into operation.
(2) Nothing in this Division limits or otherwise
affects the operation of the Interpretation of
Legislation Act 1984.
25 79 Section 3(1) (Estimated future claim cost)
The definition of estimated future claim cost
in section 3(1), as amended by section 100 of
the amending Act, applies only in respect of
notices of premium served on or after the
30 commencement date.
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80 Section 7 (Compulsory WorkCover
Insurance)
(1) Section 7, as amended by section 101(1) of
the amending Act, applies in respect of
5 injuries to which this Act applies on and
after the commencement date.
(2) Section 7, as amended by section 101(1) of
the amending Act, applies in respect of
premium calculated on and after the
10 commencement date.
(3) Section 7, as amended by section 101(3) of
the amending Act, applies in respect of
premium calculated on and after the
commencement date.
15 (4) Section 7, as amended by section 101(4) of
the amending Act, applies to an employer
who immediately before the commencement
date--
(a) has not obtained or kept in force a
20 policy of insurance as required by
section 7(1) in respect of any 5 policy
periods before the commencement date;
and
(b) the Authority has not commenced
25 proceedings against the employer under
section 7(6), 61(3) or 61(4).
81 Section 9 (WorkCover insurance policy)
Section 9, as amended by section 102 of the
amending Act, applies in respect of policies
30 of insurance entered into on or after the
commencement date.
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82 Section 16 (Premiums order--general
provisions)
Section 16, as amended by section 103 of the
amending Act, applies to any premium order
5 made by the Governor in Council on or after
the commencement date.
83 Section 17A (Authority may serve notice
of premium)
Section 17A, as inserted by section 104 of
10 the amending Act, applies to notices of
premium served on or after the
commencement date.
84 Section 21 (Adjustment of premium)
Section 21, as amended by section 105 of the
15 amending Act, applies to notices of premium
served on or after the commencement date.
85 Section 21A (Premium notices in respect
of deemed policy periods)
Section 21A, as amended by section 106 of
20 the amending Act, applies to an employer
who immediately before the commencement
date--
(a) has not obtained or kept in force a
policy of insurance as required by
25 section 7(1); and
(b) the Authority has not commenced
proceedings against the employer under
section 7(6), 61(3) or 61(4).
86 Section 31A (Refund of premium may be
30 offset)
Section 31A, as substituted by section 112 of
the amending Act, applies to excess premium
paid to the Authority by an employer in
respect of notices of premium served on the
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employer on or after the commencement
date.
87 Part 2A (Premium review)
Part 2A, as inserted by section 114 of the
5 amending Act, applies to notices of premium
served in respect of the premium year
commencing in 2010.
88 Section 58 (Registration of section 55(2)(a)
employer)
10 Section 58, as amended by section 115 of the
amending Act, applies to an employer who
immediately before the commencement
date--
(a) has not obtained or kept in force a
15 policy of insurance as required by
section 7(1); and
(b) the Authority has not commenced
proceedings against the employer under
section 7(6), 61(3) or 61(4).
20 89 Section 66A (Joint and several liability of
group members)
Section 66A, as amended by section 117 of
the amending Act, applies on or after the
commencement date, in respect of premium
25 paid to the Authority that is in excess of what
is payable by an employer.
90 Section 71 (Evidence)
Section 71, as amended by section 118 of the
amending Act, applies in respect of
30 proceedings to which section 71 applies--
(a) that have not been determined or settled
immediately before the commencement
date;
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(b) that are commenced on or after the
commencement date.
91 Section 57 (Claims against 55(2)(a))
Section 57, as amended by section 120 of the
5 amending Act, applies in respect of claims
for compensation given, served or lodged on
and after the commencement date.".
__________________
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Part 17--Repeal of Act
s. 194
PART 17--REPEAL OF ACT
194 Repeal of Act
This Act is repealed on 1 July 2011.
Note
5 The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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