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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Workplace Injury Rehabilitation and
Compensation Bill 2013
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
Division 1--Introductory 1
1 Purpose 1
2 Commencement 2
3 Definitions 3
4 Interpretation provisions 27
5 Application of this Act to injuries 28
6 Claims for compensation 29
7 Matters affecting entitlement to compensation 31
8 Act binds the Crown 32
9 Access to information 33
Division 2--Principles and Guides 35
10 Objectives of Act 35
11 Statement of rights and obligations of workers 36
12 Statement of rights and obligations of employers 37
13 Flow charts 37
14 Effect of this Division 37
PART 2--WORKPLACE INJURIES 38
Division 1--Injuries 38
15 Flow chart 1--notice of injury 38
16 Notice to be displayed at workplaces 39
17 Register of injuries 40
18 Notice of injury 40
19 Flow chart 2--making a claim 43
20 Claim for compensation 44
21 Acknowledgement or notice of claim 46
22 When claim deemed not to have been made 47
23 Guidelines for sections 20, 21 and 22 48
24 Prohibition on recovery of certain costs 48
25 Medical certificate 48
26 Worker who does not have a medical certificate 49
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27 Medical examinations 49
28 Return to work obligations of employers and workers 51
Division 2--Claims for compensation that may be lodged with
Authority 51
29 Lodging of claims with Authority in certain circumstances 51
30 Authority may require further information 52
31 Claims against certain employers 52
32 Record of employers referred to in section 31 53
33 Application of Parts 2, 3 and 5 54
34 Recovery by Authority of amount in relation to claim or
contribution 54
35 When application may be made to a court 56
36 Employer ceasing to exist 56
Division 3--Entitlement to compensation 57
37 Entitlement to compensation only if employment connected
with Victoria 57
38 Application to sailors 59
39 Entitlement to compensation 61
40 When no entitlement to compensation 62
41 Pre-existing injury or disease 65
42 Circumstances in which weekly payments are reduced
because of conviction for drink-driving offence 66
43 Circumstances in which weekly payments are reduced
because of conviction for drug-driving offence 68
44 No entitlement to compensation where conviction for certain
serious road traffic offences 69
45 If conviction or finding of guilt overturned 70
46 Out of or in the course of employment 71
47 Compensation for workers injured outside Australia 73
48 Person not to be compensated twice 74
49 Entitlement to damages outside Victoria 75
50 Compensation for disease due to employment 77
51 Proclaimed diseases 78
Division 4--Assessment of impairment 79
Subdivision 1--Preliminary 79
52 Definitions 79
53 Application of this Division to Division 5 of Part 5 and Part 7 79
Subdivision 2--Assessment in accordance with A.M.A Guides 80
54 Assessment of impairment 80
55 When and how to make an assessment of impairment 82
56 Injury, impairment or symptoms consequential or secondary
to physical injury 82
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Subdivision 3--Industrial deafness 82
57 Compensation for industrial deafness 82
58 Excluded deafness 83
59 Industrial deafness deemed to occur at constant rate 83
60 Assessment of industrial deafness 83
61 Further diminution of hearing 84
62 Effect of determination for industrial deafness 86
63 Assessing degree of impairment of whole person 87
Subdivision 4--Assessment of psychiatric, asthma and infectious
disease impairment 89
64 Psychiatric impairment 89
65 Occupational asthma impairment 90
66 Infectious occupational diseases 90
67 Guidelines referred to in this Subdivision 90
Subdivision 5--Assessment of spinal impairment 91
68 Spinal impairment 91
PART 3--COMPENSATION AND CLAIMS 92
Division 1--Preliminary 92
69 Definitions 92
Division 2--Liability and indemnity 92
70 Liability of Authority and employer 92
71 Authority to indemnify employer 93
72 Employer's excess 95
Division 3--Claims management--General 97
73 Responsibilities of employer 97
74 Guidelines 102
75 Responsibilities of self-insurers and the Authority 102
76 Notice to include statement of right of review 105
Division 4--Claims Management--Employer objection 106
77 Flow chart 3--employer objection process 106
78 Employer may request reasons for decision on a claim 107
79 Objection by employer in respect of liability 107
80 Objection lodged out of time 108
81 Authority may refuse to review a decision to which a
claimed employer has objected 109
82 Withdrawal of lodged objection 109
83 Request for information and suspension of review 110
84 Decision following review 111
85 Appeals 113
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86 Grounds of appeal 114
87 Hearing of appeal by Supreme Court 114
88 Costs of worker 115
89 Position of worker following decision under section 84 115
90 Recovery of payments 116
Division 5--Liability for payment of compensation 117
91 Application of Division 117
92 Liability to pay compensation in respect of an injury arising
out of or in the course of any employment on or after 1 July
2014 117
93 Provisions to apply where employer does not meet liabilities 117
94 Provisions relating to payment of compensation 118
95 Interim payment--weekly payments 119
PART 4--RETURN TO WORK 121
Division 1--Preliminary 121
96 Definitions 121
97 Purpose 123
98 Application of Part 124
99 Obligations of employers and workers 124
100 Section 28 and this Part do not derogate from other provisions 124
101 Part not to apply in certain circumstances 124
Division 2--Obligations of employers 126
102 Flow chart 4--return to work obligation of employers 126
103 Provide employment 127
104 Plan return to work 128
105 Consult about the return to work of a worker 129
106 Return to work co-ordinator to be appointed 130
107 Make return to work information available 133
108 Employer to notify Authority of return to work of worker 134
109 Host to co-operate with labour hire employer 134
Division 3--Obligations of workers 136
110 Flow chart 5--return to work obligation of workers 136
111 Participate in planning for return to work 137
112 Use occupational rehabilitation services 137
113 Participate in assessments 137
114 Return to work 137
115 Participate in an interview 138
Division 4--Termination of compensation 139
116 Failure to comply with Division 3 139
117 Notification of return to work 142
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Division 5--General provisions 142
118 Resolution of return to work issues 142
119 Information about the employment obligation period 143
120 Authority may give direction 144
121 Compliance code 144
122 Disallowance of certain compliance code orders 145
123 Effect of compliance codes 146
124 Effect of compliance with compliance codes 146
125 Functions of Authority in respect of compliance codes 146
Division 6--Return to Work Inspectorate 147
126 Appointment of inspectors 147
127 Identity cards 147
Division 7--Functions and powers of inspectors 148
128 Interpretation 148
129 Inspectors subject to Authority's directions 148
130 Power to enter 148
131 Announcement on entry 148
132 Report to be given about entry 149
133 General powers on entry 150
134 Powers in relation to obtaining information 150
135 Return of seized things 151
136 Power to issue Return to Work improvement notice 152
137 Directions or conditions in a Return to Work improvement
notice 154
138 Variation or cancellation of Return to Work improvement
notice 154
139 Issue of Return to Work improvement notice 154
140 Formal irregularity or defect in Return to Work improvement
notice 156
141 Proceedings for offence not affected by Return to Work
improvement notice 156
142 Persons must assist inspector 157
143 Other assistance in exercising powers 157
144 Inspector may take affidavits and statutory declarations 158
145 Inspector may copy documents 158
Division 8--Offences 158
146 Offences in relation to inspections 158
147 Protection of inspectors 159
148 Offence to impersonate inspector 159
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Division 9--Review of decisions 159
149 Which decisions are reviewable 159
150 Internal review 160
151 Review by VCAT 162
PART 5--BENEFITS 163
Division 1--Preliminary 163
152 Definitions 163
153 Definition--pre-injury average weekly earnings 165
154 Definition applying to pre-injury average weekly earnings--
relevant period 167
155 Definition applying to pre-injury average weekly earnings--
ordinary earnings 169
156 Definition applying to pre-injury average weekly earnings
and current weekly earnings--base rate of pay 170
157 Definitions applying to pre-injury average weekly earnings--
earnings enhancement and enhancement period 171
158 Definition applying to pre-injury average weekly earnings
and current weekly earnings--ordinary hours of work 172
159 Twice the State average weekly earnings 173
Division 2--Weekly payments 174
Subdivision 1--General 174
160 Compensation in weekly payments [s. 93] 174
161 Weekly payments in first entitlement period 175
162 Weekly payments in second entitlement period 175
163 Weekly payments after the second entitlement period 176
164 Compensation for incapacity arising from surgery after
second entitlement period 177
165 Continuation of weekly payments after second entitlement
period 180
166 Entitlement under section 165 not affected by certain
circumstances 182
167 Certificates of capacity for work 182
Subdivision 2--Superannuation contributions 184
168 Compensation in the form of superannuation contributions 184
Subdivision 3--Compensation after retirement 188
169 Injury after retirement 188
170 Compensation for incapacity arising after retirement age 188
171 Compensation after retirement 190
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Subdivision 4--Effect of certain pensions on weekly payments 190
172 Effect of disability or other pensions and lump sums on
weekly payments 190
173 Notification of entitlement to certain payments 193
Subdivision 5--Provisions relating to the payment of
compensation 195
174 Regard not to be had to certain contracts etc. 195
175 Absence from Australia 195
176 Further provisions concerning compensation 196
177 Sentences of imprisonment 197
178 Time for payment 197
179 Payment of weekly payments 198
Division 3--Alteration or termination of weekly payments and
superannuation contributions 200
180 Application of Division 200
181 Application by worker to alter amount of weekly payments 200
182 Authority or self-insurer may terminate or alter weekly
payments 201
183 Grounds for alteration or termination of weekly payments 201
184 Grounds for alteration or termination of superannuation
contributions 203
185 Where worker's weekly payments are reduced 203
186 Termination or alteration of weekly payments under certain
provisions 205
187 When termination of compensation in the form of
superannuation contributions has effect 206
188 Notices 207
189 When a required period of notice must be given 207
190 Reduction of weekly payments after the first entitlement
period 209
191 Termination of weekly payments after expiry of second
entitlement period 210
192 Notice of reduction of weekly payments 211
193 Outstanding weekly payments 212
194 Outstanding superannuation contributions 214
Division 4--Claims for compensation for non-economic loss 216
195 Flow chart 6--impairment benefits process 216
196 Definitions 217
197 Claims for compensation under Division 5 218
198 Division 5 claim cannot be made unless all proceedings
under section 328(2)(b) have been determined 219
199 Initiation of claim by Authority or self-insurer 219
200 Authority may suspend a claim 219
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201 Authority or self-insurer to accept or reject claim 220
202 No proceedings by worker in relation to rejection of
liability without certificate of Conciliation Officer 222
203 Assessment of impairment 222
204 Written statement of injuries 223
205 Worker to advise Authority or self-insurer of worker's
acceptance or dispute of decision as to liability under
section 201(1) 224
206 Variation by court or by agreement of decision under
section 201(1)(a) 225
207 Reference of dispute under section 205(3)(a) or 206(3)(a) to
Medical Panel 227
208 No appeal from certain determinations and opinions 229
209 Minister may give directions 229
Division 5--Compensation for non-economic loss 230
210 Definitions 230
211 Compensation for non-economic loss--permanent
impairment 232
212 Compensation for non-economic loss--permanent
psychiatric impairment 234
213 Compensation for non-economic loss--industrial deafness
in respect of further injury 235
214 Compensation for non-economic loss---loss of foetus 237
215 Injuries by gradual process other than industrial deafness 237
216 Effect of payment of compensation under this Division 238
217 Limits on compensation 239
218 Compensation not payable after death of worker 240
219 Compensation not to exceed relevant maximum 240
220 Payment of compensation as lump sum 240
221 No Disadvantage--Compensation Table 240
Division 6--Rehabilitation services prior to acceptance of claim 241
222 Authority or self-insurer may pay for rehabilitation service 241
Division 7--Compensation for medical and like services 242
223 Definitions 242
224 Liability of Authority and self-insurer 244
225 Where services provided by employer 246
226 To whom compensation under this Division is to be paid 246
227 Certain actions etc. not permitted 247
228 Medical and like services outside Australia 248
229 Compensation not payable for certain accommodation etc. 249
230 Occupational rehabilitation services 250
231 Modification of cars and homes 252
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232 Duration of compensation under this Division 255
233 Termination of payment for professional services obtained
fraudulently 256
Division 8--Compensation for death of worker 257
234 Definitions 257
235 How compensation for death of worker determined 259
236 Dependants 259
237 Dependent children and partners and partially dependent
partner 261
238 Certain compensation payable to trustee 262
239 Interest payable [s. 92A(12)] 262
240 Reimbursement of expenses incurred by non-dependent
family members of a deceased worker 263
241 Weekly pensions for dependants of worker who dies 265
242 Payment of weekly pensions 270
243 Provisional payments 271
Division 9--Voluntary settlements 274
Subdivision 1--Settlements in specific circumstances 274
244 To whom this Subdivision applies 274
245 Right to apply for settlement 275
246 Amount of settlement 275
Subdivision 2--Other settlements 277
247 Application of this Subdivision 277
248 Right to apply for settlement 277
249 Amount of settlement 277
250 Order in Council concerning settlements 277
Subdivision 3--Application procedure 278
251 Expression of interest must first be given 278
252 Authority or self-insurer must respond to expression of
interest 279
253 Application for settlement 280
254 Time limit for making applications 280
255 Authority or self-insurer must respond to application 281
256 Time limit on response to offer 281
257 Payment and nature of settlement amounts 281
258 Adjustment of settlement amount offers 282
259 Worker may withdraw application at any time 284
260 Circumstances in which offer may be withdrawn or
settlement avoided 284
261 Preclusion of further claims 285
262 Authority or self-insurer may extend or waive time limits 286
263 Minister may give directions 286
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PART 6--DISPUTE RESOLUTION 289
Division 1--Jurisdiction 289
264 Jurisdiction--general 289
265 Jurisdiction under Workers Compensation Act 1958 290
266 Jurisdiction of Magistrates' Court 291
267 Application of this Act to the Magistrates' Court 291
268 Certain evidence given in a conciliation inadmissible in
certain proceedings 291
269 Evidence relating to worker's claim 292
270 Protection of information given to Medical Panel 292
271 Admissibility of certificates of Medical Panel 293
272 Certain persons not compelled to give evidence 293
273 Certain proceedings referred for conciliation 293
274 Medical questions 294
275 Court may state a question regarding factual issues before
referring a medical question to a Medical Panel 296
276 Court to give copies of documents to parties 297
277 Copies of Medical Panel's opinion 297
278 Costs 297
279 Costs liability of legal practitioner 300
Division 2--Disputes and conciliation 303
280 Flow chart 7--dispute resolution process if a worker
disagrees with a decision 303
281 Definitions 304
282 Lodging of disputes 304
283 Power of Senior Conciliation Officer to allow lodging of
dispute 305
284 Conciliation officer may seek opinion of a Medical Panel
on medical question 305
285 Referral of medical question relating to section 165 of this
Act or section 93CD of the Accident Compensation
Act 1985 305
286 Production and disclosure of information 306
287 Representation by legal practitioner 306
288 Information from provider of medical service or other service 306
289 Costs of reports by registered health practitioners 307
290 Conciliation without conference 307
291 Power to request or release documents etc. 308
292 Offence to make false or misleading statement 308
293 Duty of Conciliation Officers 308
294 Powers of Conciliation Officers 309
295 Offence not to comply with direction 310
296 Outcome certificates to be issued 310
297 Conciliation Officer may give directions about payment of
compensation 311
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298 Genuine disputes about liability for compensation referred
to in section 297(1) and (2) 314
299 Revocation of directions of Conciliation Officer 314
300 Payments under direction etc. not admission of liability 315
301 Costs 316
Division 3--Medical Panels 317
302 Function of Medical Panel 317
303 Procedures and powers 317
304 Reference of medical question 318
305 Convenor to convene Medical Panel 318
306 When opinion on medical question may not be given 319
307 What a Medical Panel may ask a worker to do 319
308 Examination by Medical Panel 319
309 If worker unreasonably refuses to comply with request
under section 307 320
310 Attendance before Medical Panel to be in private 321
311 Medical Panel can ask provider of medical service to attend 322
312 Medical Panel may request further information 322
313 Opinions 323
Division 4--Determination by courts and recognition of
determinations 324
314 Determination of State with which worker's employment is
connected in proceedings under this Act 324
315 Determination of the State with which worker's employment
is connected 325
316 Recognition of previous determinations 325
317 Determination may be made by consent 326
PART 7--ACTIONS AND PROCEEDINGS FOR DAMAGES 327
Division 1--Choice of Law 327
318 Claims to which this Division applies 327
319 The applicable substantive law for work injury damages
claims 328
320 What constitutes injury and employment and who is employer 329
321 Claim in respect of death included 329
322 Meaning of substantive law 329
323 Availability of action in another State not relevant 331
Division 2--Actions for damages 332
324 Flow chart 8--common law process 332
325 Definitions 333
326 Actions for damages 338
327 Actions for damages--serious injury 339
328 Proceedings under this Division 340
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329 Medical examination 342
330 Authority or self-insurer to respond to application 343
331 Response by applicant 344
332 Certain material not admissible in proceedings 344
333 Conference before proceedings commence 345
334 Statutory offer and counter offer 346
335 Proceedings for damages for serious injury 346
336 Finding on an application does not give rise to issue estoppel 348
337 Authority may consent to bringing of proceedings 348
338 No further application allowed 349
339 Worker not entitled to recover damages for same injury
despite review of degree of impairment 349
340 Proceedings--limitations on awards 350
341 Jury not to be informed of certain matters 351
342 Limitation on damages in respect of pecuniary loss 351
343 Judgments, order for damage, settlement or compromise to
be reduced by certain amounts of compensation paid 352
344 Costs 352
345 Present value of future loss to be qualified 355
346 Limitation on award of interest on an amount of damages 356
347 When Authority, employer and self-insurer cease to be liable
to pay weekly payments 356
348 Determination of serious injury application after death of
worker 357
349 Calculation of limitation of actions period within which
proceedings may be commenced 361
350 Division not to affect date of accrual of cause of action 362
351 Effect of decision on application 362
352 Directions 362
353 Legal practitioner may recover costs 363
354 Legal costs order 363
355 Litigated claims legal costs order--workers 364
356 Litigated claims legal costs order--Authority and self-insurers 366
Division 3--Actions by terminally ill workers or workers with
asbestos-related conditions 367
357 Actions by terminally ill workers or workers with asbestos
related conditions 367
358 Actions by terminally ill workers continued after death of
worker 369
Division 4--Administration by a trustee 370
359 Certain funds to be administered by trustee 370
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Division 5--Conduct of common law proceedings 370
360 Definitions 370
361 Application of Division 371
362 Apportionment of liability 371
363 Notice of proceedings 372
364 Conduct of defence 372
365 Order for apportionment of liability 374
Division 6--Other actions and rights 376
366 Damages under Part III of Wrongs Act 1958 376
367 Liability of Transport Accident Commission 377
368 Settlement between Transport Accident Commission and
the Authority 379
369 Indemnity by third party 379
370 Substantive law 382
371 Compensation for pain and suffering 382
PART 8--SELF-INSURERS 384
Division 1--General 384
372 Definitions 384
373 Student workers 385
374 Municipal Association of Victoria as self-insurer 386
Division 2--Application for approval as self-insurer 386
375 Determination of eligibility to apply for approval as
self-insurer 386
376 Application for approval as self-insurer 387
377 Estimated relevant remuneration 389
378 Adjustment of application fee 390
Division 3--Approval as self-insurer 391
379 Approval as self-insurer 391
380 Terms and conditions of approval 393
381 Notice to be given to employer if application refused 394
382 Period that approval has effect 394
383 Approval of new holding company as self-insurer 395
384 Review of approval 396
385 Revocation of approval 398
386 Cost associated with revocation recoverable from employer 400
387 Non-WorkCover employer ceases to be a self-insurer 401
Division 4--Contributions to WorkCover Authority Fund 401
388 Payment of contribution 401
389 Submission of return by self-insurer 402
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Division 5--Review of contributions by self-insurers 402
390 Review of contributions 402
Division 6--Liability for claims for compensation 403
Subdivision 1--Liability of self-insurer 403
391 Self-insurer's liability to pay compensation 403
392 Claims management 403
393 Liabilities of self-insurer to be guaranteed 404
394 Payments by Authority 407
Subdivision 2--Election by self-insurer to assume liability for tail
claims 408
395 Movement from scheme insurance to self-insurance 408
396 When a self-insurer becomes an eligible subsidiary of a
holding company 411
397 When an employer that is a body corporate becomes an
eligible subsidiary of a self-insurer 413
398 When a self-insurer becomes an eligible subsidiary of
another self-insurer 415
399 Guarantee of liability for tail claims 418
400 Requirement for guarantee 419
401 Arrangements for payments in respect of liability for tail
claims 420
402 Where an eligible subsidiary ceases to be an eligible
subsidiary of a self-insurer 420
Subdivision 3--Employer that ceases to be self-insurer or
otherwise to be liable for tail claims 421
403 Employer ceases to be self-insurer 421
404 General provisions applying to assessment by an actuary 423
405 Initial assessment of liability for tail claims 424
406 Annual assessment of tail claims liabilities and adjustment
of payments 425
407 Provision of guarantees 426
408 Review of final revised assessment at the end of the liability
period 430
409 Eligible subsidiary of self-insurer becomes a non-WorkCover
employer 431
Division 7--Miscellaneous 433
410 Guidelines 433
411 Effect of guidelines 434
412 Secrecy provisions 434
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PART 9--NON-WORKCOVER EMPLOYERS 438
413 Definitions 438
414 Authority retains or assumes liability for tail claims 440
415 Actuary to assess tail claims liabilities 441
416 Obligation of non-WorkCover employer 442
417 Annual assessment of tail claims liabilities 442
418 Adjustment of payments as at the end of the third year 443
419 Adjustment of payments as at the end of the sixth year 443
420 Payments of tail claims 444
421 Provision of guarantees 444
422 Provision of new guarantee 446
423 Recovery under guarantees 446
424 Review of final revised assessment at the end of the liability
period 447
425 Liability of Authority under this Part 448
426 Legal proceedings excluded 448
427 Application of Part if non-WorkCover employer ceases to be
a non-WorkCover employer 448
428 Failure to comply with a provision of this Part 449
PART 10--PREMIUMS AND REGISTRATION OF
EMPLOYERS 450
Division 1--Preliminary 450
429 Application 450
430 Liability to pay premium 450
431 Groups 451
432 Joint and several liability of group members 457
Division 2--Registration 459
433 Flow chart 9--registration of employer 459
434 Registration of employers 460
435 Statutory contract of insurance 461
436 Registered employer to notify change of circumstances 462
437 Evidence that employer is registered under this Part 463
438 Books and accounts to be preserved 463
Division 3--Rateable remuneration 464
439 Employer to give estimate of rateable remuneration 464
440 Authority may estimate rateable remuneration of employer 464
441 Certified statement of rateable remuneration 464
442 Employer to give certified statement 465
443 Revised estimates of rateable remuneration 465
444 Where employer fails to provide accurate information about
rateable remuneration 467
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445 Worker employed under Transport Accident Commission
program 467
446 Superannuation benefits and calculation of premiums 468
Division 4--Premiums 470
447 Flow chart 10--Determination of premium process 470
448 Premiums order 471
449 Authority may give notice of premium 472
450 Premium payable where employer not registered for whole
of premium period 472
451 Adjustment of premium in certain circumstances 473
452 Default penalty 473
453 Payment and recovery of penalties 474
454 Late payment penalty 475
455 Default penalty where failure to provide full and true
disclosure 475
456 Application for refund of premium 476
457 Premium avoidance schemes 477
458 Proceedings not to be brought 478
Division 5--Premium review 479
459 Flow chart 11--premium review process 479
460 Definitions 480
461 Employer may apply for review of a reviewable amount
under this Division 481
462 Time for making, and form of, application for review 481
463 Application for review made out of time 482
464 Authority may decline application for review 482
465 Withdrawal of application for review 483
466 Time period for review 483
467 Request for information and suspension of review 484
468 Determination of review 485
469 Payments following review of reviewable amount 486
470 Interest payable following review of reviewable amount 487
471 Deemed determinations of the Authority 488
472 Review of premium by Authority at its discretion 488
473 Adjustment of premium after review 489
474 Application of adjustment powers under section 473 489
475 Recovery of increased premium 490
476 Refund of premium may be offset 490
477 Exercise of review and adjustment powers 490
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Division 6--Review by VCAT and appeal to Supreme Court 491
478 Right of review and appeal 491
479 Request for further and better particulars 492
480 Payment of fee or filing fee before review or appeal 492
481 Authority to lodge material 492
482 Grounds of review 493
483 Onus on review or appeal 493
484 Review by VCAT 494
485 Supreme Court appeals 494
486 Authority to give effect to decision on review 494
487 If no appeal from a decision or order 495
Division 7--Recovery of premium or penalty 495
488 Recovery of premium or penalty 495
489 Evidence 496
Division 8--Reviews by Minister 497
490 Review of setting of premiums 497
PART 11--THE VICTORIAN WORKCOVER AUTHORITY 499
Division 1--Constitution 499
491 The Authority 499
492 Objectives of the Authority 499
493 Functions of the Authority 500
494 Powers of the Authority 504
495 Accountability of the Authority 506
496 Guidelines, forms and advisory practice notes 506
497 Power to give advice on compliance 507
498 Chief Executive Officer 507
499 Officers and employees 508
500 Delegation 509
501 Authorised agents 510
Division 2--Board of Management 512
502 Establishment of Board 512
503 Constitution of Board 512
504 Execution of documents 512
505 Judicial notice of signatures 513
506 Directors generally 513
507 Acting Directors 513
508 Vacancy, resignation and termination 515
509 Chairperson 515
510 Meetings of the Board 517
511 Pecuniary interests of Directors 518
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Division 3--WorkCover Advisory Committee 519
512 WorkCover Advisory Committee 519
Division 4--Financial matters 521
513 WorkCover Authority Fund 521
514 Borrowing powers 524
515 Repayment of capital 524
516 Dividends 525
517 Budget 525
518 Operating and financial report 525
PART 12--OTHER BODIES 526
Division 1--Accident Compensation Conciliation Service 526
519 Conciliation Service 526
520 Constitution of the Conciliation Service 526
521 Function 526
522 Powers 526
523 Appointment of Senior Conciliation Officer and
Conciliation Officers 527
524 Acting Senior Conciliation Officer 527
525 Engagement of Conciliation Officers and staff 528
526 Protection against liability for Conciliation Officers 529
527 Functions of the Senior Conciliation Officer 529
528 Minister may make guidelines 530
529 Senior Conciliation Officer may give directions 530
530 Data to be collected by the Senior Conciliation Officer 530
531 Vacancy and resignation 531
532 Senior Conciliation Officer may advise removal or
suspension from office 532
533 Removal from office by Governor in Council 532
534 Conciliation Service budget 533
535 Authority to fund the Service 534
536 Signature 534
Division 2--Medical Panels 534
537 Establishment and constitution 534
538 Term, resignation and termination 536
539 Advisory functions 537
540 Validity of acts or decisions 537
541 Protection for Convenor and members of a Medical Panel 538
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PART 13--GENERAL 539
Division 1--Indexation 539
542 Indexation--weekly payments 539
543 Indexation of weekly pensions for dependants of a worker
who dies 540
544 Indexation of certain amounts--according to average
weekly earnings 542
545 Indexation of certain amounts--consumer price index 543
546 Indexation--no reduction 546
547 Indexation--rounding 547
Division 2--Agreements 547
548 Reciprocal agreements--compensation 547
549 Reciprocal agreements--premiums or other amounts 548
550 Reciprocal agreements--relevant services 549
551 Incentive agreements to improve employer performance 550
Division 3--Access to information 551
552 Power to obtain information and evidence 551
553 Powers of inspection 553
554 Offences 554
555 Access to police records 555
556 Court to provide certificate of conviction 556
557 VicRoads may disclose information to Authority 556
Division 4--Issue of search warrants 557
558 Issue of search warrants 557
Division 5--Prohibited conduct relating to touting for claims 561
559 Definitions 561
560 Prohibited conduct by agents 562
561 Offence of engaging in prohibited conduct 564
562 Consequences of prohibited conduct for recovery of fees by
agents 564
563 Consequences of prohibited conduct for legal practitioners 565
564 Legal practitioner and agents can be requested to certify as
to prohibited conduct 566
565 Power to restrict or ban recovery of costs by agents who
engage in prohibited conduct 568
566 Power to restrict or ban agents who engage in prohibited
conduct 569
567 Duty of claimants to comply with requests for information
about agents and legal practitioners 570
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Division 6--Regulation of providers of professional services 570
568 Suspension of payments for services 570
569 Effect of disqualifying offence 573
570 Conduct of service providers 574
571 Findings of relevant bodies 578
572 Notice to be given before determination made 579
573 Authority may publish list of providers subject to
disciplinary action 580
574 Victorian Civil and Administrative Tribunal 580
Division 7--Discriminatory conduct 582
575 Offence to engage in discriminatory conduct 582
576 Order for damages or reinstatement 584
577 Procedure if prosecution is not brought under section 575 586
578 Civil proceedings relating to discriminatory conduct 588
579 Effect of orders on other orders under section 575, 576 or 578 591
580 Claims under section 576 or 578 592
Division 8--Offences 592
Subdivision 1--Fraud, bribery and false information 592
581 Fraud 592
582 Bribery 593
583 False or misleading information 594
584 False or misleading statements 595
585 False information 596
586 Investigations 597
587 Indemnity 597
Subdivision 2--Other offences 598
588 Unauthorised use of information 598
589 Obstructing officers 598
Division 9--Miscellaneous 598
590 Certificate 598
591 State taxation officer 599
592 Signature 599
593 Service of documents by the Authority 599
594 Service of documents on the Authority 600
595 Secrecy provisions 601
596 Liability of premium adviser 603
597 Protection against self-incrimination 604
598 Legal professional privilege and client legal privilege not
affected 605
599 Refunding money to the Authority etc. 605
600 Imputing conduct of bodies corporate 606
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601 Criminal liability of officers of bodies corporate--failure
to exercise due diligence 607
602 Responsible agency for the Crown 610
603 Proceedings against successors to public bodies 611
604 Undertakings 612
605 Adverse publicity orders 613
Division 10--Prosecutions 615
606 Institution of prosecutions under Part 4 615
607 Return to work--procedure if prosecution is not brought 615
608 Institution of prosecutions 616
Division 11--Directions and Guidelines 618
609 Directions given by the Minister 618
610 Directions given for the purposes of Part 4 619
611 Guidelines made by the Minister 619
612 Guidelines made by the Authority 620
Division 12--The Authority and the IBAC 620
613 Mandatory notification of corrupt conduct to IBAC 620
614 Consultation prior to notification 621
615 Communication of information to the IBAC 621
616 Authority not to prejudice investigations of the IBAC 621
Division 13--Section 85 provisions 622
617 Supreme Court--limitation of jurisdiction--conferral of
exclusive jurisdiction 622
618 Supreme Court--limitation of jurisdiction--no proceedings 622
619 Proceedings 622
Division 14--Regulations 623
620 Regulations 623
621 Transitional regulations 624
Division 15--Savings, Repeal and Transitionals 625
622 Re-enacted provisions of Accident Compensation Act 1985 625
623 Repeal of Accident Compensation (WorkCover Insurance)
Act 1993 637
PART 14--AMENDMENTS AND REPEALS 639
Division 1--Accident Compensation Act 1985 639
624 Amendment of Part I 639
625 Section 5 substituted--Definitions 640
5 Definitions 640
626 Amendment of sections 5, 5A, 5AB, 5AE, 8(5) and 68 641
571139B.I-17/9/2013 xxi BILL LA INTRODUCTION 17/9/2013
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627 Repeal of sections 5C, 5D and 5E, Division 3 of Part I and
Parts II and III 643
628 Part IV 644
629 Amendment of section 92B 646
630 Further amendment of Part IV 646
631 Sections 100 to 100C substituted 651
100 Indexation--weekly payments 651
100A Indexation of weekly pensions for dependants of a
worker who dies 653
100B Indexation of certain amounts--according to average
weekly earnings 655
100C Indexation of certain amounts--consumer price index 657
632 Dollar amounts as at 1 July 2013--benefits 660
633 Dollar amounts as at 1 July 2013--payment, contributions etc. 664
634 Amendment of sections 101, 102 and 103 665
635 Amendment of sections 104B to 118 665
636 New section 123B substituted 667
123B Prohibition on recovery of certain costs 667
637 Amendment of sections 124, 125 and 125A 668
638 Further amendment of Part IV 668
639 Parts V, VIA, VIIA and VIIB 669
640 Part VIII 669
641 Part IX, section 313 substituted 670
313 Section 93CD 670
642 Part IX, new section 352A inserted 670
352A Retrospective operation of certain instruments of
delegation 670
643 Part IX, new section 368A inserted 671
368A Section 91(3AAA) 671
644 Savings and Transitional 672
Division 15--Workplace Injury Rehabilitation and
Compensation Act 2013 672
391 Workplace Injury Rehabilitation and
Compensation Act 2013 672
645 Repeal of spent provisions 672
646 Schedules 672
Division 2--Accident Compensation (WorkCover Insurance)
Act 1993 673
647 Amendment of section 87 of Accident Compensation
(WorkCover Insurance) Act 1993 673
87 Part 2A (Premium review) 673
Division 3--Amendment of other Acts 673
648 Workers Compensation Act 1958 673
649 Amendment of Acts specified in Schedule 9 674
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Division 4--Repeal of Part 14 and Schedule 9 674
650 Repeal of Part 14 and Schedule 9 674
__________________
SCHEDULES 675
SCHEDULE 1--Further Interpretative Provisions 675
PART 1--PERSONS DEEMED TO BE WORKERS OR
EMPLOYERS 675
1 Students etc. deemed to be workers and their deemed
employers 675
2 Declared training programs 677
3 Persons attending certain employment programs deemed to
be workers 678
4 Co-operatives--deemed workers and employers 678
5 Door to door sellers 679
6 Timber contractors 680
7 Drivers carrying passengers for reward 681
8 Owner drivers carrying goods for reward 682
9 Contractors 683
10 Remuneration and contractual arrangements 685
11 Claims to be made against principal 686
12 Share farmers 687
13 Religious bodies and organisations 688
14 Persons employed in the public sector 689
15 Municipal Councillors 690
16 Places of pick-up 690
17 Sporting contestants 691
18 Riders and drivers in certain races 692
19 Outworkers 693
PART 2--REMUNERATION 696
20 Definition of remuneration 696
21 Remuneration--value of remuneration comprising fringe
benefits 699
22 Remuneration--motor vehicle allowance 700
23 Remuneration--accommodation allowance 701
24 Rateable remuneration 702
PART 3--OTHER INTERPRETATION PROVISIONS 703
25 Significant contributing factor 703
26 Member of a family 703
27 Superannuation benefit 704
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SCHEDULE 2--Pre-injury Average Weekly Earnings 706
SCHEDULE 3--Modification to Degrees of Impairment for the
Purposes of Division 5 of Part 5 711
SCHEDULE 4--No Disadvantage--Compensation Table 713
SCHEDULE 5--Table to be used to Determine Settlement
Amounts under Section 246 717
SCHEDULE 6--Self-insurers--Pre-application Eligibility Fee 718
1 Pre-application eligibility fee 718
SCHEDULE 7--Application Fee for Approval as Self-insurer 719
1 Application fee 719
2 Assessment remuneration 719
3 Fee limit 720
SCHEDULE 8--Persons to Whom Document may be Produced
or Information Communicated or Divulged 722
1 The Secretary to the Department of State Development,
Business and Innovation. 722
2 The Secretary to the Department of Environment and
Primary Industries. 722
3 The Secretary to the Department of Transport, Planning and
Local Infrastructure. 722
4 The Secretary to the Department of Treasury and Finance. 722
5 The Coroners Court. 722
6 The Public Advocate. 722
7 The Commissioner of State Revenue. 722
8 The Transport Accident Commission. 722
9 A person who has responsibility for the administration of a
welfare, benefit or compensation scheme of a State or
Territory or the Commonwealth. 722
10 A corresponding authority. 722
11 A Department or public entity within the meaning of the
Public Administration Act 2004. 722
12 The National Occupational Health and Safety Commission. 722
13 The Australian Bureau of Statistics. 722
14 The Board or committee of management (by whatever name
called) of a statutory superannuation scheme within the
meaning of the Superannuation (Portability) Act 1989. 722
15 Any special commission (within the meaning of the Evidence
(Commissions) Act 1982) where-- 723
16 A person, committee or body approved by the Governor in
Council. 723
17 A committee of the Parliament. 723
571139B.I-17/9/2013 xxiv BILL LA INTRODUCTION 17/9/2013
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18 CPA Australia. 723
19 A National Board within the meaning of the Health
Practitioner Regulation National Law. 723
20 Legal Services Board. 723
21 Legal Services Commissioner. 723
22 Victorian Bar Inc.. 723
23 CoINVEST Limited A.C.N. 078 0040985 or its successors. 723
SCHEDULE 9--Consequential Amendments 724
1 Asbestos Diseases Compensation Act 2008 724
2 Children, Youth and Families Act 2005 724
3 Civil Procedure Act 2010 724
4 Conservation, Forests and Lands Act 1987 725
5 Constitution Act 1975 726
6 Corrections Act 1986 726
7 Country Fire Authority Act 1958 727
8 County Court Act 1958 728
9 Credit Act 1984 728
10 Criminal Procedure Act 2009 728
11 Dangerous Goods Act 1985 728
12 Duties Act 2000 729
13 Education and Training Reform Act 2006 729
14 Emergency Management Act 1986 731
15 Emergency Services Superannuation Act 1986 732
16 Equipment (Public Safety) Act 1994 732
17 Evidence Act 2008 733
18 Evidence (Miscellaneous Provisions) Act 1958 733
19 Independent Broad-based Anti-corruption Commission
Act 2011 733
20 Juries Act 2000 734
21 Limitation of Actions Act 1958 735
22 Local Government Act 1989 735
23 Long Service Leave Act 1992 735
24 Magistrates' Court Act 1989 736
25 Occupational Health and Safety Act 2004 736
26 Ombudsman Act 1973 739
27 Owner Drivers and Forestry Contractors Act 2005 739
28 Police Assistance Compensation Act 1968 740
29 Police Regulation Act 1958 740
30 Radiation Act 2005 741
31 Road Safety Act 1986 741
32 Transport Accident Act 1986 741
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33 Victorian Civil and Administrative Tribunal Act 1998 743
PART 24--WORKPLACE INJURY REHABILITATION
AND COMPENSATION ACT 2013 743
104 Tribunal may request information about a
determination 743
105 Compulsory conference in WorkCover proceedings 744
34 Victorian Managed Insurance Authority Act 1996 744
35 Victoria State Emergency Service Act 2005 744
36 Wrongs Act 1958 746
28LZL Operation of Panel provisions of the Workplace
Injury Rehabilitation and Compensation Act 2013 747
ENDNOTES 749
571139B.I-17/9/2013 xxvi BILL LA INTRODUCTION 17/9/2013
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Workplace Injury Rehabilitation and
Compensation Bill 2013
A Bill for an Act to re-enact with amendments certain provisions of
the Accident Compensation Act 1985 and the Accident
Compensation (WorkCover Insurance) Act 1993, to provide for the
registration of employers and the payment of WorkCover premiums,
to amend the Accident Compensation Act 1985, to repeal the
Accident Compensation (WorkCover Insurance) Act 1993, to
make consequential amendments to certain other Acts and for other
purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
Division 1--Introductory
1 Purpose
The purpose of this Act is to--
5 (a) simplify the provisions applying to the
rehabilitation of injured workers and
571139B.I-17/9/2013 1 BILL LA INTRODUCTION 17/9/2013
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compensation in relation to injuries or deaths
arising out of accidents and diseases in the
workplace on or after 1 July 2014; and
(b) streamline the provisions of the Accident
5 Compensation Act 1985 which continue to
apply in respect of injuries or deaths arising
out of accidents and diseases in the
workplace before 1 July 2014; and
(c) provide a single gateway for claims for
10 compensation whether under this Act or the
Accident Compensation Act 1985; and
(d) provide for the registration of employers and
the payment of WorkCover premiums; and
(e) repeal the Accident Compensation
15 (WorkCover Insurance) Act 1993; and
(f) make consequential amendments to the
Accident Compensation Act 1985, the
Workers Compensation Act 1958 and
certain other Acts.
20 2 Commencement
(1) This Act, other than sections 626, 628(1), (2), (3)
and (4), 629, 630(1), (2), (4), (5), (6), (10) and
(11), 631, 632, 633, 637(4), 640(2), 641, 642, 643
and 647, comes into operation on 1 July 2014.
25 (2) Section 626 (except subsection (7)) and sections
628(2), (3) and (4), 629, 630(1), (2), (4), (5), (10)
and (11), 631, 632, 633, 637(4), 640(2) and 642
come into operation on the day after the day on
which this Act receives the Royal Assent.
30 (3) Sections 628(1) and 641 are deemed to have come
into operation on 5 April 2010.
(4) Sections 626(7), 630(3) and 647 are deemed to
have come into operation on 1 July 2010.
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(5) Section 643 is deemed to have come into
operation on 1 November 2010.
(6) Section 630(6) is deemed to have come into
operation on 1 July 2012.
5 3 Definitions
In this Act--
accounting records has the same meaning as it
has in section 3 of the Financial
Management Act 1994;
10 A.M.A Guides means the American Medical
Association's Guides to the Evaluation of
Permanent Impairment (Fourth Edition)
(other than Chapter 15) as modified by this
Act and the regulations;
15 ambulance service means the conveying of a
worker by any reasonable means--
(a) for the purpose of receiving medical or
hospital services; or
(b) to the worker's place of residence after
20 receiving medical or hospital services;
applicable prescribed percentage, in relation to
the amount paid or payable to a class of
worker, means the percentage of
remuneration prescribed by the regulations
25 as not being attributable to the performance
of work by a worker of that class;
apprentice, except in clause 17 of Schedule 1,
means an apprentice within the meaning of
the Education and Training Reform Act
30 2006;
authorised agent means a person appointed by the
Authority under section 501 as an authorised
agent;
571139B.I-17/9/2013 3 BILL LA INTRODUCTION 17/9/2013
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Authority means the Victorian WorkCover
Authority continued in existence by
section 491(1);
Board means the Board of Management of the
5 Authority;
books includes any document;
Note
See the definition of document in section 38 of the
Interpretation of Legislation Act 1984.
10 Conciliation Officer means--
(a) the Senior Conciliation Officer; and
(b) a Conciliation Officer holding office
under section 523(2);
Conciliation Service means the Accident
15 Compensation Conciliation Service
continued in existence under section 519;
Convenor means the Convenor of Medical Panels
appointed under section 537;
corresponding Authority means a Government
20 department or a statutory authority of the
Commonwealth Government, or of the
Government of another State or of a
Territory, that is responsible for
administering a law corresponding to this
25 Act, the Occupational Health and Safety
Act 2004, the Dangerous Goods Act 1985
or the Equipment (Public Safety) Act 1994;
corrupt conduct has the meaning given in
section 4 of the Independent Broad-based
30 Anti-corruption Commission Act 2011;
current weekly earnings has the meaning given
by section 152;
571139B.I-17/9/2013 4 BILL LA INTRODUCTION 17/9/2013
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current work capacity, in relation to a worker,
means a present inability arising from an
injury such that the worker is not able to
return to his or her pre-injury employment
5 but is able to return to work in suitable
employment;
declared training program means a training
program in respect of which a declaration
under clause 2 of Schedule 1 is in force;
10 dependant means a person who--
(a) at the time of the death of a worker was
wholly, mainly or partly dependent on
the earnings of the worker; or
(b) would, but for the incapacity of a
15 worker due to an injury, have been
wholly, mainly or partly dependent on
the earnings of the worker;
disease includes--
(a) any physical or mental ailment,
20 disorder, defect or morbid condition
whether of sudden or gradual
development; and
(b) the aggravation, acceleration,
exacerbation or recurrence of any
25 pre-existing disease;
domestic partner of a person, means--
(a) a person who is in a registered domestic
relationship within the meaning of the
Relationships Act 2008 with the
30 person; or
(b) a person to whom the person is not
married but with whom the person is
living as a couple on a genuine
domestic basis (irrespective of gender),
35 taking into account all the
571139B.I-17/9/2013 5 BILL LA INTRODUCTION 17/9/2013
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circumstances of their relationship,
including any one or more of the
matters referred to in section 35(2) of
the Relationships Act 2008 as may be
5 relevant in a particular case;
drive includes to be in control, or in charge, of a
motor vehicle;
eligible subsidiary has the meaning given by
section 372;
10 employer includes--
(a) a person--
(i) for whom a worker works; or
(ii) with whom a worker agrees to
perform work--
15 at the person's direction, instruction or
request, whether under a contract of
employment (whether express, implied,
oral or in writing) or otherwise; and
(b) a person who is deemed to be an
20 employer under this Act; and
(c) if the services of a worker are
temporarily lent or let on hire to
another person by, or with the consent
of, the person with whom the worker
25 has entered into a contract of
employment or apprenticeship or
otherwise, the last mentioned person,
while the worker is working for that
other person; and
30 (d) the legal personal representative of an
employer who is dead;
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employer superannuation contribution means
any contribution made by an employer in
respect of a worker to any scheme or fund
for the payment of superannuation,
5 retirement or death benefits including a
contribution made by an employer on behalf
of the worker under a salary sacrifice
agreement or arrangement but excluding--
(a) any contribution in respect of a worker
10 that is not made for the purposes of
avoiding a liability on an employer
under the Superannuation Guarantee
(Administration) Act 1992 of the
Commonwealth; and
15 (b) any contribution in respect of a worker
which is not made for the purposes of
discharging an obligation on an
employer under--
(i) an industrial award; or
20 (ii) a public sector superannuation
scheme, agreement or
arrangement; or
(iii) any other Commonwealth or State
law relating to superannuation;
25 and
(c) any contribution, made by an employer
in respect of a worker under a salary
sacrifice agreement or arrangement, of
a kind or class specified by the Minister
30 by an Order published in the
Government Gazette;
exemption limit, in relation to a financial year,
means the amount prescribed in the
premiums order in respect of that financial
35 year for the purposes of clause 20(3)(d) of
Schedule 1;
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first entitlement period has the meaning given by
section 152;
fringe benefit has the same meaning as in the
Fringe Benefits Tax Assessment Act 1986 of
5 the Commonwealth but does not include
anything that is prescribed by the regulations
not to be a fringe benefit for the purposes of
this definition;
full-time worker means a worker who is
10 employed for at least the normal number of
hours fixed in any industrial award
applicable to the worker or, if there is no
applicable award, the prescribed number of
hours;
15 heart attack injury means an injury to the heart,
or any blood vessel supplying or associated
with the heart, that consists of, is caused by,
results in or is associated with any of the
following--
20 (a) any heart attack;
(b) any myocardial infarction;
(c) any myocardial ischaemia;
(d) any angina, whether unstable or
otherwise;
25 (e) any fibrillation, whether atrial,
ventricular or otherwise;
(f) any arrhythmia of the heart;
(g) any tachycardia, whether ventricular,
supra ventricular or otherwise;
30 (h) any harm or damage to such a blood
vessel or to any associated plaque;
(i) any impairment, disturbance or
alteration of blood, or blood circulation,
within such a blood vessel;
571139B.I-17/9/2013 8 BILL LA INTRODUCTION 17/9/2013
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(j) any occlusion of such a blood vessel,
whether the occlusion is total or partial;
(k) any rupture of such a blood vessel,
including any rupture of an aneurism of
5 such a blood vessel;
(l) any haemorrhage from such a blood
vessel;
(m) any aortic dissection;
(n) any consequential physical harm or
10 damage, including harm or damage to
the brain;
(o) any consequential mental harm or
damage;
hospital means--
15 (a) a public hospital, denominational
hospital, private hospital or public
health service within the meaning of the
Health Services Act 1988; or
(b) a day procedure centre within the
20 meaning of the Health Services Act
1988; or
(c) an approved mental health service
within the meaning of the Mental
Health Act 1986; or
25 (d) a hospital within the meaning of a law
of another State or of a Territory; or
(e) a place within Australia declared by
Order of the Governor in Council to be
a hospital for the purposes of this Act;
30 or
(f) a place outside Australia approved by
the Authority as a hospital for the
purposes of this Act;
571139B.I-17/9/2013 9 BILL LA INTRODUCTION 17/9/2013
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hospital service includes--
(a) maintenance, attendance and treatment
in a hospital; and
(b) the provision by a hospital of--
5 (i) medical attendance and treatment;
and
(ii) nursing attendance; and
(iii) medicines, medical, surgical and
other curative materials,
10 appliances or apparatus; and
(iv) any other usual or necessary
services provided by a hospital
with respect to the treatment of an
injury or disease of a worker;
15 IBAC means the Independent Broad-based Anti-
corruption Commission established under
section 12 of the Independent Broad-based
Anti-corruption Commission Act 2011;
IBAC personnel has the same meaning as it has in
20 the Victorian Inspectorate Act 2011;
incapacity includes--
(a) a disfigurement that is sufficient to
affect the earning capacity of a worker
or a worker's opportunities for
25 employment; and
(b) in relation to industrial deafness,
inability to engage in the worker's own
or other suitable employment because
of an immediate and substantial risk of
30 increasing the industrial deafness to a
level of material disability;
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industrial award means--
(a) a fair work instrument (other than an
FWA order) within the meaning of the
Fair Work Act 2009 of the
5 Commonwealth; or
(b) a transitional instrument within the
meaning of the Fair Work (Transitional
Provisions and Consequential
Amendments) Act 2009 of the
10 Commonwealth;
industrial deafness means any condition of
deafness caused by--
(a) exposure; or
(b) continued exposure; or
15 (c) periods of continued exposure--
to industrial noise;
injury means any physical or mental injury and,
without limiting the generality of that
definition, includes--
20 (a) industrial deafness; and
(b) a disease contracted by a worker in the
course of the worker's employment
(whether at, or away from, the place of
employment); and
25 (c) a recurrence, aggravation, acceleration,
exacerbation or deterioration of any
pre-existing injury or disease;
interest at the prescribed rate means interest at
the rate fixed for the time being under
30 section 2 of the Penalty Interest Rates Act
1983;
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legal practitioner means an Australian legal
practitioner within the meaning of the Legal
Profession Act 2004;
Medical Panel means a Medical Panel constituted
5 under Division 2 of Part 12;
medical practitioner means--
(a) a person registered under the Health
Practitioner Regulation National Law to
practise in the medical profession
10 (other than as a student); and
(b) in relation to anything done for the
purposes of this Act--
(i) in a place within Australia but
outside Victoria, a medical
15 practitioner who is lawfully
qualified in that place to do that
thing; and
(ii) in a place outside Australia, a
medical practitioner who is
20 lawfully qualified in that place to
do that thing and who is approved
for the purposes of this Act by the
Authority or a self-insurer;
medical question means any of the following--
25 (a) a question as to the nature of a worker's
medical condition relevant to an injury
or alleged injury;
(b) a question as to the existence, extent or
permanency of any incapacity of a
30 worker for work or suitable
employment and the question whether a
worker is partially or totally
incapacitated;
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(c) a question as to whether a worker has a
current work capacity or has no current
work capacity and what employment
would or would not constitute suitable
5 employment;
(d) a question as to whether a worker, on a
particular date or during a particular
period, had no current work capacity
and, if not, what employment would, or
10 would not, have constituted suitable
employment on that date or during that
period;
(e) a question as to whether a worker has
no current work capacity and is likely
15 to continue indefinitely to have no
current work capacity;
(f) a question as to whether a worker has a
current work capacity and, because of
the injury, is, and is likely to continue
20 indefinitely, to be incapable of
undertaking--
(i) further or additional employment
or work; or
(ii) further or additional employment
25 or work that would increase the
worker's current weekly
earnings--
and, if not so incapable, what further or
additional employment or work the
30 worker is capable of undertaking;
(g) a question as to the medical, personal
and household or occupational
rehabilitation service provided, or to be
provided, to a worker for an injury,
35 including a question as to the adequacy,
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appropriateness or frequency of that
service;
(h) a question whether a worker's
employment was in fact, or could
5 possibly have been--
(i) a significant contributing factor;
or
(ii) a contributing factor--
to an injury or alleged injury, or to a
10 similar injury;
(i) a question as to the extent to which any
physical or mental condition, including
any impairment, results or resulted
from or was or is, materially
15 contributed to by the injury;
(j) a question as to the level of impairment
of a worker, including--
(i) a question of the degree of
impairment of a worker assessed
20 in accordance with Division 4 of
Part 2 of this Act or section 91 of
the Accident Compensation Act
1985;
(ii) a question as to whether or not
25 that impairment is permanent;
(k) a question as to the amount of the total
percentage referred to in section
61(2)(b) of this Act or section 89(3)(b)
of the Accident Compensation Act
30 1985;
(l) a question as to whether a worker has
an injury which is a total loss
mentioned in the Table in Schedule 4 of
this Act or the Table in Schedule 3B of
35 the Accident Compensation Act 1985;
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(m) a question whether a worker's
incapacity for work results or resulted
from, or is or was materially
contributed to by, an injury or alleged
5 injury;
(n) a question prescribed to be a medical
question in respect of an application for
leave under section 335(2)(d) of this
Act or section 134AB(16)(b) of the
10 Accident Compensation Act 1985;
(o) a question determined to be a medical
question by a court hearing an
application for leave under section
335(2)(d) of this Act or section
15 134AB(16)(b) of the Accident
Compensation Act 1985;
medical service includes--
(a) attendance, examination or treatment of
any kind by a medical practitioner,
20 registered dentist, registered
optometrist, registered physiotherapist,
registered chiropractor, registered
osteopath or registered podiatrist; and
(b) the provision and, as may be necessary
25 from time to time (including at the time
of the injury), the repair, adjustment or
replacement of crutches, artificial
members, orthoses, eyes, teeth or
spectacle glasses; and
30 (c) the provision and, as may be necessary
from time to time (including at the time
of the injury), the repair, adjustment or
replacement of hearing aids of a type
approved by the Authority by a person
35 or a class of persons approved by the
Authority; and
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(d) the provision by a registered
pharmacist, on the request of a medical
practitioner or registered dentist, of
medicines or curative apparatus,
5 appliances or materials; and
(e) the provision, on the request of a
medical practitioner, by a person
approved by the Authority of any health
service approved by the Authority; and
10 (f) the provision by a medical practitioner,
registered dentist, registered
optometrist, registered physiotherapist,
registered chiropractor, registered
osteopath or registered podiatrist of--
15 (i) a certificate required by the
worker, the worker's dependants,
an employer, the Authority or a
self-insurer; or
(ii) a report authorised by the
20 Authority or a self-insurer--
for any purpose relating to this Act or
the Accident Compensation Act 1985;
and
(g) the provision, at the request of a
25 medical practitioner, hospital or
provider of a hospital service, of special
food or a special food formula; and
(h) the provision, at the request of a
medical practitioner, of room
30 temperature control equipment for a
person who is unable to adequately
regulate his or her own body
temperature; and
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(i) the provision, at the request of a
medical practitioner, of equipment
intended to treat or stabilise any injury;
and
5 Example
Examples of equipment referred to in
paragraph (i) include life support equipment,
ventilators and special lighting.
(j) the provision of anything needed to
10 operate, run, maintain or repair any
equipment referred to in paragraph (h)
or (i);
Example
Examples of things referred to in paragraph (j)
15 include electricity, water, lubricating oil and
replacement filters and batteries.
member of a family has the meaning given in
clause 26 of Schedule 1;
midwife means a person registered--
20 (a) under the Health Practitioner
Regulation National Law to practise in
the nursing and midwifery profession
as a midwife (other than as a student);
and
25 (b) in the register of midwives kept for that
profession;
motor vehicle means a motor vehicle within the
meaning of section 3(1) of the Road Safety
Act 1986;
30 no current work capacity, in relation to a worker,
means a present inability arising from an
injury such that the worker is not able to
return to work, either in the worker's
pre-injury employment or in suitable
35 employment;
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non-WorkCover employer has the meaning given
by section 413;
notice of penalty means a notice in writing of a
penalty payable by an employer under
5 Part 10;
nurse means a person registered under the Health
Practitioner Regulation National Law to
practise in the nursing and midwifery
profession as a nurse (other than as a
10 midwife or as a student);
nursing service means--
(a) a nursing service rendered by a nurse;
or
(b) a midwifery service rendered by a
15 midwife--
otherwise than at a hospital or as a member
of the nursing staff of a hospital;
occupational rehabilitation service means any of
the following services provided by a person
20 who is approved by the Authority as a
provider of an occupational rehabilitation
service--
(a) initial rehabilitation assessment;
(b) functional assessment;
25 (c) workplace assessment;
(d) job analysis;
(e) advice concerning job modification;
(f) occupational rehabilitation counselling;
(g) vocational assessment;
30 (h) advice or assistance concerning
job-seeking;
(i) vocational re-education;
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(j) advice or assistance in arranging
vocational re-education;
(k) advice or assistance in return to work
planning;
5 (l) the provision of aids, appliances,
apparatus or other material likely to
facilitate the return to work of a worker
after an injury;
(m) modification to a work station or
10 equipment used by a worker that is
likely to facilitate the return to work of
the worker after an injury;
(n) any other service authorised by the
Authority--
15 but does not include a hospital service;
partner means--
(a) in relation to a worker, the worker's
spouse or domestic partner; or
(b) in relation to a worker who dies, the
20 worker's spouse or domestic partner at
the time of the worker's death;
person under a disability means a person who is
incapable by reason of injury, disease,
senility, illness, or physical or mental
25 infirmity of managing his or her affairs in
relation to a matter or proceeding under this
Act or the Accident Compensation Act
1985;
personal and household service means the
30 provision of any one or more of the
following of a kind or type, and by a person,
approved by the Authority--
(a) attendant care;
(b) household help;
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(c) transportation costs;
(d) at the request of a medical practitioner,
an aid, assistance, appliance, apparatus
or service, other than a medical service,
5 hospital service or nursing service;
pre-injury average weekly earnings has the
meaning given by Division 1 of Part 5;
premium period, in relation to a premiums order,
means the period beginning on 1 July 2014
10 and ending on 30 June 2015 and each
succeeding year beginning on 1 July;
premiums order means a premiums order in force
under section 448;
professional service means--
15 (a) a hospital service, medical service,
ambulance service, nursing service,
accident rescue service, personal and
household service or occupational
rehabilitation service; or
20 (b) legal services provided by a legal
practitioner; or
(c) a service, provision of goods or any
other matter referred to in Division 7 of
Part 5 of this Act or Division 2B of
25 Part IV of the Accident Compensation
Act 1985 in relation to the costs of
which a liability arises, or may arise,
under that Division;
rateable remuneration has the meaning given by
30 clause 24 of Schedule 1;
registered chiropractor means a person registered
under the Health Practitioner Regulation
National Law to practise in the chiropractic
profession (other than as a student);
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registered dentist means a person registered--
(a) under the Health Practitioner
Regulation National Law to practise in
the dental profession as a dentist (other
5 than as a student); and
(b) in the dentists division of that
profession;
registered employer means an employer who is
registered with the Authority under Part 10;
10 registered optometrist means a person registered
under the Health Practitioner Regulation
National Law to practise in the optometry
profession (other than as a student);
registered osteopath means a person registered
15 under the Health Practitioner Regulation
National Law to practise in the osteopathy
profession (other than as a student);
registered physiotherapist means a person
registered under the Health Practitioner
20 Regulation National Law to practise in the
physiotherapy profession (other than as a
student);
registered podiatrist means a person who is
registered under the Health Practitioner
25 Regulation National Law to practise in the
podiatry profession (other than as a student);
registered psychologist means a person registered
under the Health Practitioner Regulation
National Law to practise in the psychology
30 profession (other than as a student);
remuneration has the meaning given by Part 2 of
Schedule 1;
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retirement age, in relation to a worker, means--
(a) if there is a normal retiring age for
workers in the occupation in which the
worker was employed at the time of the
5 injury, that age; or
(b) the age of 65 years--
whichever is the earlier and, for the purposes
of determining whether there is a normal
retiring age for workers in an occupation,
10 regard may be had to any retiring age in any
industry or establishment where that
occupation is carried on;
second entitlement period has the meaning given
by section 152;
15 self-insurer means--
(a) a body corporate that--
(i) is approved as a self-insurer under
Division 3 of Part 8; or
(ii) immediately before 1 July 2014,
20 was a self-insurer within the
meaning of the Accident
Compensation Act 1985;
(b) a body corporate that--
(i) has been a self-insurer within the
25 meaning of paragraph (a) or a self-
insurer within the meaning of the
Accident Compensation Act
1985 as in force immediately
before 1 July 2014; and
30 (ii) has elected, or entered into an
arrangement with the Authority, to
retain liability for its tail claims;
and
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(iii) has not ceased to be liable for
those tail claims;
Senior Conciliation Officer means the person
holding office under section 523(1) as the
5 Senior Conciliation Officer;
shift allowance means an allowance or loading
paid or payable for shift work or working on
public holidays, Saturdays or Sundays;
significant contributing factor has the meaning
10 given by clause 25 of Schedule 1;
specified workplace means--
(a) a factory, mine, office, quarry, shop or
warehouse; or
(b) a place at which 10 or more workers are
15 engaged in work or from which the
work of the workers is managed or
controlled;
spouse of a person means a person to whom that
person is married;
20 State average weekly earnings, in relation to
compensation payable in a financial year,
means the average weekly total earnings of
all employees in Victoria in original terms
published by the Australian Bureau of
25 Statistics as at 15 June in the preceding
financial year in respect of the most recent
reference period ending on or before
31 December in that preceding financial
year;
30 stroke injury means an injury to the brain, or any
of the blood vessels supplying or associated
with the brain, that consists of, is caused by,
results in or is associated with any of the
following--
35 (a) any stroke;
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(b) any cerebral infarction;
(c) any cerebral ischaemia;
(d) any rupture of such a blood vessel,
including any rupture of an aneurism of
5 such a blood vessel;
(e) any subarachnoid haemorrhage;
(f) any haemorrhage from such a blood
vessel;
(g) any harm or damage to such a blood
10 vessel or to any associated plaque;
(h) any impairment, disturbance or
alteration of blood, or blood circulation,
within such a blood vessel;
(i) any occlusion of such a blood vessel,
15 whether the occlusion is total or partial;
(j) any consequential physical harm or
damage, including neurological harm or
damage;
(k) any consequential mental harm or
20 damage;
student worker means a worker within the
meaning of clause 1(1)(a), (b), (c), (d) or (e)
of Schedule 1;
suitable employment, in relation to a worker,
25 means employment in work for which the
worker is currently suited--
(a) having regard to the following--
(i) the nature of the worker's
incapacity and the details provided
30 in medical information including,
but not limited to, the certificate
of capacity supplied by the
worker;
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(ii) the nature of the worker's pre-
injury employment;
(iii) the worker's age, education, skills
and work experience;
5 (iv) the worker's place of residence;
(v) any plan or document prepared as
part of the return to work planning
process;
(vi) any occupational rehabilitation
10 services that are being, or have
been, provided to or for the
worker;
(b) regardless of whether--
(i) the work or the employment is
15 available; or
(ii) the work or the employment is of
a type or nature that is generally
available in the employment
market;
20 and, for the purposes of Part 4, includes--
(c) employment in respect of which the
number of hours each day or week that
the worker performs work, or the range
of duties the worker performs, is
25 suitably increased in stages in
accordance with return to work
planning or otherwise; and
(d) employment the worker is undertaking
or that is offered to the worker,
30 regardless of whether the work or the
employment is of a type or nature that
is generally available in the
employment market; and
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(e) suitable training or vocational
re-education provided by the employer,
or under arrangements approved by the
employer (whether or not the employer
5 also provides employment involving
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
10 worker attends suitable training or
vocational re-education;
superannuation benefit has the meaning given by
clause 27 of Schedule 1;
transport accident means a transport accident
15 within the meaning of section 3(1) of the
Transport Accident Act 1986;
twice the State average weekly earnings has the
meaning given by section 159(3);
weekly payment means compensation in the form
20 of a weekly payment under Division 2 of
Part 5;
WorkCover Authority Fund means the Fund
continued in existence under section 513;
worker means an individual--
25 (a) who--
(i) performs work for an employer; or
(ii) agrees with an employer to
perform work--
at the employer's direction, instruction
30 or request, whether under a contract of
employment (whether express, implied,
oral or in writing) or otherwise; or
(b) who is deemed to be a worker under
this Act;
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workers compensation cover means insurance or
registration required under a law of another
State or of a Territory in respect of liability
for statutory workers compensation under
5 that law;
workplace particulars, in relation to a record of
an injury to a worker entered in the register
of injuries, means the following--
(a) the name of the worker;
10 (b) the worker's occupation or job title;
(c) the time and date of the injury;
(d) the worker' s exact location at the time
of the injury;
(e) the names of witnesses, if any, to the
15 injury;
(f) the date on which the entry in the
register of injuries is made;
(g) the name of the person making the
entry.
20 4 Interpretation provisions
(1) For the purposes of paragraph (b) of the definition
of injury, the employment of a worker is taken to
include any travelling or other circumstances
referred to in section 46 of this Act, other than
25 subsection (1)(a), or in section 83 of the Accident
Compensation Act 1985, other than
subsection (1)(a).
(2) A reference in this Act to a determination or
decision includes a reference to--
30 (a) making, suspending, varying, revoking or
refusing or failing to make an order, award,
decision or determination; and
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(b) giving, suspending, varying, revoking or
refusing or failing to give a certificate,
direction, approval, consent or permission;
and
5 (c) issuing, suspending, varying, revoking or
refusing or failing to issue a licence,
authority or other instrument.
(3) Part 1 of Schedule 1 provides that, for the
purposes of this Act, certain persons are deemed
10 to be workers or employers.
(4) Part 2 of Schedule 1 contains provisions relating
to the meaning of remuneration for the purposes
of this Act.
(5) Part 3 of Schedule 1 contains certain other
15 interpretation provisions for the purposes of this
Act.
5 Application of this Act to injuries
(1) Except as otherwise expressly provided in this
Act, this Act applies to the entitlement of a worker
20 to compensation under this Act in respect of--
(a) an injury to the worker arising out of, or in
the course of, or due to the nature of,
employment on or after 1 July 2014; and
(b) an injury arising--
25 (i) out of, or in the course of, or due to the
nature of, employment; and
(ii) by way of gradual process over a period
beginning before, and continuing on or
after 1 July 2014--
30 but does not apply to or in relation to an injury
arising out of, or in the course of, or due to the
nature of, employment solely before 1 July 2014.
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(2) If a worker suffers an injury that--
(a) arises out of, or in the course of, or due to the
nature of, employment; and
(b) occurs by way of gradual process over a
5 period beginning on or after 20 October 1999
and continuing on or after 1 July 2014--
the worker may rely on any part of the injury that
occurred before 1 July 2014 for the purposes of
establishing that the injury constitutes a serious
10 injury for the purposes of Division 2 of Part 7.
(3) Subsection (2) does not apply to any part of the
injury that was the subject of an application made
under section 134AB(4) of the Accident
Compensation Act 1985.
15 (4) Division 5 of Part 7 applies in relation to an
injury, disease or industrial deafness caused to or
suffered by a worker before, on or after 1 July
2014 that has arisen out of, or in the course of, or
due to the nature of, any employment in which the
20 worker was employed at any time.
6 Claims for compensation
(1) On and after 1 July 2014, a claim for
compensation under this Act or under the
Accident Compensation Act 1985 (other than a
25 claim for compensation for maims or pain and
suffering under section 98 or 98A of that Act) is
to be given, served or lodged in accordance with
Divisions 1 and 2 of Part 2 of this Act, unless
specific provision to the contrary is made in this
30 Act or the Accident Compensation Act 1985.
(2) If the Authority receives a claim from a person for
compensation under the Workers Compensation
Act 1958 in respect of an injury occurring before
4 p.m. on 31 August 1985, the Authority may, in
35 its discretion, provide guidance to the person as to
how to make such a claim.
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(3) Proceedings may not be brought against the
Authority in respect of guidance given, or not
given, or anything done, or omitted to be done, in
relation to the receipt of a claim referred to in
5 subsection (2).
(4) If a claim for compensation is made under the
Accident Compensation Act 1985 or the
Workers Compensation Act 1958 by a
dependant of a worker in respect of the death of
10 the worker, a claim for compensation under this
Act must not be made unless the first mentioned
claim is withdrawn or rejected.
(5) Compensation for the death of a worker is not
payable under this Act if compensation for the
15 death of the worker has been paid under the
Accident Compensation Act 1985 or the
Workers Compensation Act 1958.
(6) Part 6 applies to, and in respect of, any dispute--
(a) arising under this Act in relation to a claim
20 for compensation under this Act; or
(b) arising on or after 1 July 2014 in relation to a
claim for compensation under the Accident
Compensation Act 1985, whether made
before, on or after 1 July 2014; or
25 (c) arising under the Workers Compensation
Act 1958.
(7) For the purposes of subsection (6)(b), a reference
in the Accident Compensation Act 1985 to
Part III of that Act is to be taken to be a reference
30 to Part 6 of this Act.
(8) For the purposes of subsection (6), a dispute
concerning a matter arises when--
(a) a referral for conciliation of the matter is, or
was, lodged with the Senior Conciliation
35 Officer in accordance with section 282 of
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this Act or section 55 of the Accident
Compensation Act 1985; or
(b) if the matter is a medical question, when the
medical question is, or was, referred to a
5 Medical Panel in accordance with
section 304 of this Act or section 65(6A) of
the Accident Compensation Act 1985; or
(c) when proceedings concerning the matter are
instituted in a court or VCAT.
10 (9) For the purposes of subsection (6), a dispute
concerning a matter is concluded when--
(a) if the matter was referred for conciliation, a
Conciliation Officer has issued an outcome
certificate; or
15 (b) if the matter was a medical question referred
to a Medical Panel, the Medical Panel has
given its opinion; or
(c) if the matter was a proceeding instituted in a
court or VCAT, all appeal rights in relation
20 to a decision or determination in respect of
the matter have been exhausted.
7 Matters affecting entitlement to compensation
(1) Nothing in this Act entitles a worker to
compensation under this Act in respect of a
25 disease due to the nature of employment in which
the worker was employed unless the worker has
been employed in employment of that nature on or
after 1 July 2014.
(2) A person is not entitled to receive compensation
30 in the form of weekly payments in respect of the
same injury under this Act and under the
Accident Compensation Act 1985 or the
Workers Compensation Act 1958.
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(3) If a worker is entitled to receive weekly payments
under this Act and under the Accident
Compensation Act 1985 or the Workers
Compensation Act 1958, or both, at the same
5 time, the sum of the rate of weekly payments
received under the Accident Compensation Act
1985 or the Workers Compensation Act 1958
and the rate of the weekly payments under this
Act must not exceed the maximum rate of weekly
10 payments specified in this Act and the amount of
weekly payments payable under this Act is
reduced accordingly.
(4) If a worker commences, or has commenced, to
receive compensation in the form of weekly
15 payments under this Act, the entitlement of the
worker to continue to receive weekly payments,
and the amount of those payments, depends on the
provisions of this Act as in force from time to
time.
20 Note
Entitlement to compensation for an injury to a worker arising out
of, or in the course of, or due to the nature of, employment solely
before 1 July 2014 will be determined under sections 4 and 4A of
the Accident Compensation Act 1985 or section 1A of the
25 Workers Compensation Act 1958 as in force from time to time.
8 Act binds the Crown
(1) This Act binds the Crown--
(a) in right of the State of Victoria; and
(b) to the extent that the legislative power of the
30 Parliament permits, in all its other capacities.
(2) To avoid doubt, the Crown is a body corporate for
the purposes of this Act and the regulations.
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9 Access to information
(1) Subject to this Act, the Authority or a self-insurer
must, at the request of a person who has made a
claim for compensation, give that person in
5 accordance with this section any information held
by the Authority or self-insurer which is relevant
to the claim for compensation.
(2) The Authority, a self-insurer or an employer must,
at the request of a person who has made a claim
10 for compensation, give that person any
information received from a provider to that
person of a medical service or hospital service,
being information regarding that service and
relevant to the claim.
15 (3) The Authority, a self-insurer or an employer must
take all reasonable steps, as soon as is practicable
but in any case not later than 28 days of the
request being received, to give to the person
making the request--
20 (a) a notice of the reasons for its decision; and
(b) if the decision is to provide all or part of the
information requested under subsection (1)
or (2), that information.
(4) The Authority or self-insurer may refuse to
25 provide the information requested under
subsection (1) if the Authority or self-insurer is
satisfied that--
(a) subject to subsection (5), the information is
exempt information; or
30 (b) there are no reasonable grounds for
requesting information--
(i) which is the same as information which
has been given to the person making
the request under this or any other Act
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in the period of 12 months before the
request; or
(ii) to which access has previously been
refused under this or any other Act.
5 (5) If--
(a) the Authority or self-insurer decides not to
grant a request for information on the ground
that some of the information is exempt
information; and
10 (b) it is practicable for the Authority or self-
insurer to give a copy of the information
with deletions of the exempt information;
and
(c) it appears from the request or subsequent
15 indications from the person making the
request, that the person would wish to have
access to information with those deletions--
the Authority or self-insurer must provide that
information.
20 (6) If the Authority, a self-insurer or an employer
believes on reasonable grounds that the
information requested under subsection (1) or (2)
includes information which is exempt information
because it is health information which would pose
25 a serious threat to the life or health of the person if
the information were to be given to that person--
(a) the Authority, a self-insurer or an employer
must not give access to that health
information; and
30 (b) the procedure set out in Division 3 of Part 5
of the Health Records Act 2001 applies as
if the refusal of access were a refusal under
section 26 of that Act.
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(7) The failure by the Authority, a self-insurer or an
employer to comply with this section is to be
taken to be a dispute to which Divisions 1 and 2 of
Part 6 apply.
5 (8) In this section, exempt information means
information of a kind which, if it were contained
in a document requested under the Freedom of
Information Act 1982, would make that
document an exempt document because
10 section 30, 31, 32, 33 or 35 of the Freedom of
Information Act 1982 would apply.
Division 2--Principles and Guides
10 Objectives of Act
The objectives of this Act are to--
15 (a) reduce the incidence of accidents and
diseases in the workplace; and
(b) make provision for the effective occupational
rehabilitation of injured workers and their
early return to work; and
20 (c) increase the provision of suitable
employment to workers who are injured to
enable their early return to work; and
(d) ensure appropriate compensation under this
Act or the Accident Compensation Act
25 1985 is paid to injured workers in the most
socially and economically appropriate
manner, as expeditiously as possible; and
(e) ensure workers compensation costs are
contained so as to minimise the burden on
30 Victorian businesses; and
(f) establish incentives that are conducive to
efficiency and discourage abuse; and
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(g) enhance flexibility in the system and allow
adaptation to the particular needs of
disparate work situations; and
(h) maintain a fully-funded scheme; and
5 (i) in this context, to improve the health and
safety of persons at work and reduce the
social and economic costs to the Victorian
community of accident compensation.
11 Statement of rights and obligations of workers
10 A worker--
(a) is entitled to appropriate compensation under
this Act or the Accident Compensation Act
1985 in relation to an injury to the worker
arising out of or in the course of
15 employment; and
(b) must give notice of an injury to the employer
in accordance with this Act; and
(c) must comply with any requirement under
this Act, the Accident Compensation Act
20 1985 or the Workers Compensation Act
1958 relating to a claim for compensation;
and
(d) is entitled to information relevant to a claim
for compensation in accordance with
25 section 9; and
(e) must comply with the obligations of a
worker specified in section 27 and Division 3
of Part 4.
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Part 1--Preliminary
s. 12
12 Statement of rights and obligations of employers
An employer--
(a) is entitled to have the liability to pay
compensation in respect of an injury arising
5 out of or in the course of any employment
determined in accordance with this Act or
the Accident Compensation Act 1985; and
(b) must comply with any requirement under
this Act, the Accident Compensation Act
10 1985 or the Workers Compensation Act
1958 relating to a claim for compensation;
and
(c) must provide information relevant to a claim
for compensation in accordance with
15 section 9; and
(d) must comply with the obligations of an
employer specified in Division 2 of Part 4,
Part 7 and Part 10.
13 Flow charts
20 A flow chart in this Act does not form part of this
Act.
Note
Despite section 36(3A) of the Interpretation of Legislation
Act 1984, a flow chart included in this Act does not form
25 part of the Act and is intended only as a guide to the reader
as to the general scheme of the provisions to which it
relates.
14 Effect of this Division
The Parliament does not intend by this Division to
30 create in any person any legal right or give rise to
any civil cause of action.
__________________
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PART 2--WORKPLACE INJURIES
Division 1--Injuries
15 Flow chart 1--notice of injury
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Part 2--Workplace Injuries
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16 Notice to be displayed at workplaces
(1) The employer must cause to be displayed--
(a) at each specified workplace at which
workers are employed by the employer; and
5 (b) at a place in that specified workplace readily
accessible at all reasonable times to a worker
employed at the workplace--
a summary, in a form approved by the Authority,
of--
10 (c) the requirements under this Act relating to
the giving of notice of an injury; and
(d) the requirements under this Act for making a
claim for compensation under this Act or the
Accident Compensation Act 1985; and
15 (e) if an authorised agent is responsible for
managing claims against the employer, the
name of the authorised agent; and
(f) the benefits available to workers under this
Act or the Accident Compensation Act
20 1985.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
25 (2) A form approved the Authority for the purposes of
subsection (1) must be--
(a) published on a Government Internet website;
and
(b) available for inspection by members of the
30 public without charge at the office of the
Authority during normal business hours.
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17 Register of injuries
(1) The employer must cause a register of injuries to
be kept--
(a) at each specified workplace; and
5 (b) at a place in that specified workplace readily
accessible at all reasonable times to a worker
employed in the specified workplace or a
person acting on such a worker's behalf.
Penalty: In the case of a natural person,
10 60 penalty units;
In the case of a body corporate,
300 penalty units.
(2) A worker, or any person acting on a worker's
behalf, may enter the workplace particulars of an
15 injury in the register of injuries.
(3) On receiving notice of an injury of which the
workplace particulars have not been entered in the
register, an employer must cause the workplace
particulars of the injury to be entered in the
20 register as far as reasonably practicable.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
25 18 Notice of injury
(1) Notice of an injury that may entitle a person to
compensation under this Act or the Accident
Compensation Act 1985 must be given by the
person to the employer within 30 days after the
30 person becomes aware of the injury.
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(2) Notice of an injury must--
(a) be given in a manner and form approved by
the Authority; and
(b) include the workplace particulars of the
5 injury as far as reasonably practicable.
(3) Notice of an injury is deemed to have been given
to an employer if the workplace particulars of the
injury are entered in the register of injuries.
(4) The employer must acknowledge in writing the
10 giving of notice of an injury.
(5) Subject to subsection (6), a person is not entitled
to recover compensation under this Act or the
Accident Compensation Act 1985 unless notice
of the injury has been given to the employer
15 within the time specified in subsection (1).
(6) The Authority or self-insurer may waive or extend
the time limit specified in subsection (1), if the
Authority or self-insurer is satisfied that--
(a) it was not reasonably practicable for the
20 person, or another person on his or her
behalf, to have given notice in accordance
with subsection (1); or
(b) the failure to give notice of the injury in
accordance with the time limit specified in
25 subsection (1) did not unfairly prejudice the
employer; or
(c) to rely on subsection (5) would result in a
serious injustice to the person.
(7) Without limiting the generality of subsection
30 (6)(a), it is to be taken not to have been reasonably
practicable to give notice of the injury in
accordance with the time limit specified in
subsection (1) if the failure to give notice was due
to--
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Part 2--Workplace Injuries
s. 18
(a) ignorance or a mistake; or
(b) undue influence or duress; or
(c) being absent from Victoria.
(8) Any instrument made by the Authority setting out
5 the manner and form of a notice of injury for the
purposes of subsection (2)(a) must be--
(a) published on a Government Internet website;
and
(b) available for inspection by members of the
10 public without charge at the office of the
Authority during normal business hours.
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19 Flow chart 2--making a claim
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20 Claim for compensation
(1) A claim for compensation under this Act or the
Accident Compensation Act 1985 must be in a
form approved by the Authority in respect of that
5 type or class of claim.
(2) A claim for compensation in the form of weekly
payments must--
(a) state the date on which the worker ceased
work because of the injury; or
10 (b) be accompanied by a medical certificate in
accordance with section 25; or
(c) be supplemented at a later date by a medical
certificate in accordance with section 25.
(3) A claim for compensation (other than a claim
15 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 give to the Authority, self-
20 insurer or employer information regarding the
service relevant to the claim.
(4) If a claim for compensation in the form of weekly
payments has been given to or served on the
employer or self-insurer or lodged with the
25 Authority but was not accompanied, or
supplemented, by a medical certificate in
accordance with section 25, compensation in the
form of weekly payments is not payable unless
and until a medical certificate in accordance with
30 section 25 has been given to or served on the
employer or self-insurer or lodged with the
Authority.
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(5) A claim for compensation--
(a) must be given to or served on the employer
or self-insurer; or
(b) if section 29 or 31(4) applies, may be lodged
5 with the Authority.
(6) A claim for compensation is deemed to have been
given to or served on the employer or self-insurer
or lodged with the Authority if it is given, served
or lodged in accordance with guidelines made by
10 the Minister in accordance with section 23.
(7) 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 within the knowledge
15 of the employer or self-insurer or the Authority, as
the case requires.
(8) Subject to subsection (9), a claim for
compensation must be given, served or lodged
under this section or section 29 or 31--
20 (a) in the case of a claim for compensation in the
form of weekly payments, as soon as
practicable after the incapacity arising from
the injury becomes known; or
(b) in the case of a claim for compensation
25 under section 235, 236, 237 or 241 of this
Act or section 92, 92A or 92B of the
Accident Compensation Act 1985, within
the period of 2 years after the date of the
death of the relevant worker; or
30 (c) in the case of a claim for compensation
under Division 7 of Part 5 of this Act or
Division 2B of Part IV of the Accident
Compensation Act 1985, within 6 months
after the date of the relevant service.
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(9) If the Authority or self-insurer is satisfied that a
person making a claim for compensation had a
special excuse for not making the claim within the
relevant applicable time limit, the Authority or
5 self-insurer may waive or extend the time limit to
enable the claim for compensation to be made.
(10) Any instrument made by the Authority setting out
the form of a claim for compensation must be--
(a) published on a Government Internet website;
10 and
(b) available for inspection by members of the
public without charge at the office of the
Authority during normal business hours.
21 Acknowledgement or notice of claim
15 (1) If the employer or self-insurer or the Authority
receives from a worker a claim for compensation
made in accordance with section 20, the employer
or self-insurer or the Authority must, as soon as is
reasonably practicable, give the worker
20 acknowledgement in writing that the claim has
been received.
(2) 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
25 payments by giving to the 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 section 25.
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22 When claim deemed not to have been made
(1) A claim is deemed not to have been made in
accordance with section 20 if--
(a) it contains a material defect, omission or
5 irregularity (other than a material defect,
omission or irregularity referred to in
section 20(7)); and
(b) within 14 days after the claim is given to or
served on the employer, lodged with the
10 Authority or given to the self-insurer, as the
case requires, the Authority or the self-
insurer returns the claim to the claimant with
a notice that--
(i) specifies in detail each material defect,
15 omission and irregularity identified in
the claim; and
(ii) states that any period within which the
claim is required to be dealt with does
not commence until a claim that does
20 not contain any specified material
defect, omission or irregularity is given
to, served on or lodged with the
Authority or the self-insurer.
(2) If--
25 (a) a claim for compensation is made under
section 20 in respect of an injury to a worker
arising out of or in the course of, or due to
the nature of, employment with a particular
employer; and
30 (b) the claim is made after the worker ceases to
be employed by that employer--
the claim is deemed not to have been made unless
the claimant satisfies the Authority or self-insurer
that he or she could not reasonably have made the
35 claim while employed by that employer.
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(3) If a claim for compensation under section 20
relates to an injury resulting from an accident
involving a motor vehicle within the meaning of
the Road Safety Act 1986, the claim is deemed
5 not to have been made unless a report of the
accident has been made to a member of the police
force, whether under section 61 of that Act or
otherwise.
23 Guidelines for sections 20, 21 and 22
10 The Minister may make guidelines in accordance
with section 611 for the purposes of section 20, 21
or 22 specifying the manner and form in which a
claim for compensation may be given, served or
lodged by a worker.
15 24 Prohibition on recovery of certain costs
A person is not entitled to recover any costs in
respect of assisting a person to make, give, serve,
lodge or forward any application or claim for
compensation under this Act or the Accident
20 Compensation Act 1985.
25 Medical certificate
(1) A medical certificate referred to in section 20 that
relates to a claim for compensation that is, or
includes, compensation in the form of weekly
25 payments must--
(a) be issued by a medical practitioner; and
(b) be in a form approved by the Authority; and
(c) specify the expected duration of the worker's
incapacity and whether the worker has a
30 current work capacity or has no current work
capacity.
(2) A certificate issued or purporting to have been
issued under subsection (1) is of no effect if it
contains a material defect, omission or
35 irregularity.
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(3) If a certificate issued or purporting to have been
issued under subsection (1) is in respect of a
period exceeding 14 days, it is of no effect after
the first 14 days, unless the Authority or
5 self-insurer is satisfied that there are special
reasons which require an extension of that period.
26 Worker who does not have a medical certificate
(1) If a worker is unable to receive compensation in
the form of weekly payments because the worker
10 does not have a medical certificate relating to the
injury in accordance with section 25, the worker
may refer the matter to a Conciliation Officer by
lodging a referral with the Senior Conciliation
Officer in a form approved by the Authority.
15 (2) If the Conciliation Officer is satisfied that the
worker has made all reasonable attempts to obtain
a medical certificate, the worker may apply to the
County Court or the Magistrates' Court for a
determination of the entitlement of the worker to
20 compensation in the form of weekly payments
under this Act or the Accident Compensation
Act 1985.
(3) For the purposes of this Act, a determination of
the Magistrates' Court or the County Court under
25 subsection (2) is to be taken to be a medical
certificate issued in accordance with section 25.
27 Medical examinations
(1) The Authority or a self-insurer may require a
worker who has made a claim for compensation to
30 submit at reasonable intervals to an examination
by an independent medical examiner provided and
paid for by the Authority or self-insurer.
(2) If a worker unreasonably refuses to have, or
unreasonably obstructs, an examination under
35 subsection (1)--
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(a) any claim or proceedings commenced by or
on behalf of the worker; and
(b) the worker's entitlement--
(i) to compensation under this Act or the
5 Accident Compensation Act 1985; or
(ii) to apply to the County Court or
Magistrates' Court--
are suspended until the examination takes place.
(3) When the examination takes place any period
10 between the date on which the worker
unreasonably refused to have, or unreasonably
obstructed, the examination and the date of the
examination must be taken into account for the
purpose of calculating a period of time for the
15 purposes of this Act or the Accident
Compensation Act 1985.
(4) Any weekly payments which would otherwise be
payable during the period of suspension are
forfeited.
20 (5) In this section, independent medical examiner
means any of the following--
(a) a medical practitioner;
(b) a registered dentist;
(c) a registered physiotherapist;
25 (d) a registered chiropractor;
(e) a registered osteopath;
(f) a registered psychologist--
approved by the Authority for the purposes of this
section.
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28 Return to work obligations of employers and
workers
If a worker has an incapacity for work, the
obligations of the employer under Division 2 of
5 Part 4 and of the worker under Division 3 of
Part 4 apply.
Division 2--Claims for compensation that may be lodged
with Authority
29 Lodging of claims with Authority in certain
10 circumstances
(1) If a person making a claim for compensation in
respect of an injury arising out of or in the course
of or due to the nature of employment, becomes
aware that the employer--
15 (a) has not complied, and is not likely to
comply, with section 73(1); or
(b) is refusing to receive the claim; or
(c) cannot be identified after the person has
taken reasonable steps to identify the
20 relevant employer; or
(d) cannot be found after the person has taken
reasonable steps to find the relevant
employer; or
(e) is dead, or is an externally-administered
25 body corporate under the Corporations Act
or has ceased to exist--
that person may lodge the claim with the
Authority.
(2) A claim for weekly payments which purports to
30 be lodged in accordance with subsection (1) when
the conditions specified in that subsection do not
apply is deemed not to have been made if, within
14 days of the claim being lodged, the Authority
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returns the claim to the claimant with a notice
under subsection (3).
(3) The notice must--
(a) specify that the claim for weekly payments
5 must be given to or served on the employer;
and
(b) state that any period within which the claim
is to be dealt with does not commence until a
claim for weekly payments has been given to
10 or served on the employer.
30 Authority may require further information
(1) The Authority may require a person lodging a
claim under section 29 to provide further
information to the Authority.
15 (2) Subject to subsection (3), section 75 applies in
respect of a claim under section 29 as if the
reference to 28 days were a reference to 35 days.
(3) If the relevant employer is identified or found by
the Authority, section 75 applies as if the
20 reference to 28 days of receiving the claim were a
reference to 28 days from the time that the
employer is identified or found.
31 Claims against certain employers
(1) In this section, employer means an employer who,
25 in respect of a financial year--
(a) does not pay, and is not liable to pay,
rateable remuneration that exceeds the
exemption limit; and
(b) does not employ an apprentice.
30 (2) A claim for compensation against an employer
within the meaning of this section must first be
given to or served on the employer.
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(3) The employer must lodge the claim with the
Authority within 5 days of receiving it.
Penalty: In the case of a natural person,
60 penalty units;
5 In the case of a body corporate,
300 penalty units.
(4) If a person making a claim for compensation
under this section becomes aware that the
employer--
10 (a) has not complied with subsection (3); or
(b) is refusing to receive the claim--
that person may lodge the claim with the
Authority.
32 Record of employers referred to in section 31
15 (1) If a worker employed by an employer referred to
in section 31 gives to, or serves on, the employer a
claim for compensation under this Act, the
employer--
(a) must apply to the Authority or an authorised
20 agent, in a form approved by the Authority,
to be recorded as an employer referred to in
section 31; and
(b) must make the application within 30 days
after receiving the claim.
25 Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
(2) The Authority must record the applicant as an
30 employer referred to in section 31.
(3) Subsection (1) does not apply to an employer
which is already recorded under subsection (2).
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33 Application of Parts 2, 3 and 5
Except as provided in this Part, this Part and
Parts 3 and 5 apply in relation to the determination
and management of claims against employers
5 referred to in section 29 or 31.
34 Recovery by Authority of amount in relation to
claim or contribution
(1) The Authority may serve a notice in writing on a
person who, in the opinion of the Authority, was
10 at the time of the injury--
(a) an employer of a worker to or in respect of
whom compensation was paid or payable
under this Act or the Accident
Compensation Act 1985; and
15 (b) an employer to which section 430(1)
applies--
but was not, at that time, registered as an
employer under section 434, requiring that person,
within a period specified in the notice, to
20 reimburse to the Authority an amount, not
exceeding the amount of compensation paid,
specified in the notice.
(2) Subsection (1) does not apply to an employer
which has applied to be recorded under section 32.
25 (3) If a person is liable to pay contribution under
section 23B of the Wrongs Act 1958 or a
corresponding provision of an Act of the
Commonwealth or another State or a Territory in
respect of an injury suffered by, or death of, a
30 worker and, at the time of the injury or death, the
person was, in the opinion of the Authority--
(a) the employer of the worker; and
(b) an employer to which section 430(1) applies;
and
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(c) not registered as an employer under
section 434--
the Authority may serve a notice in writing on the
person requiring the person to pay to the
5 Authority an amount, not exceeding the amount of
contribution paid by the Authority under this Act,
specified in the notice.
(4) The Authority may, by instrument in writing,
waive all or part of the liability of an employer
10 under subsection (1) or (3) to reimburse or pay to
the Authority an amount, if the Authority is
satisfied that--
(a) the amount is beyond the capacity of the
employer to pay; or
15 (b) the employer could not reasonably have been
expected to regard himself or herself as an
employer at the relevant time; or
(c) the employer, not being a corporation, is an
insolvent under administration and the
20 liability under this section is not provable in
the insolvency; or
(d) the employer, being a corporation, is an
externally-administered body corporate
under the Corporations Act and the liability
25 under this section is not provable in the
administration; or
(e) the employer, being a corporation, has
ceased to exist; or
(f) it would not be commercially feasible for the
30 Authority to attempt to recover the amount.
(5) In this section, compensation includes damages.
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35 When application may be made to a court
(1) A person on whom a notice has been served under
section 34(1) may, within the period specified in
the notice, apply to the Magistrates' Court or the
5 County Court for a determination as to the
person's liability under this Act or the Accident
Compensation Act 1985.
(2) If an application has not been made under
subsection (1) from the person to whom the notice
10 was given, the Authority may recover an amount
specified in a notice served under section 34(1) as
a debt in a court of competent jurisdiction.
Note
Penalties apply under Part 10 to employers to which section 430(1)
15 applies and are not registered.
36 Employer ceasing to exist
(1) A worker may make an application to the County
Court for a declaration under this section.
(2) The County Court may make a declaration that the
20 employer--
(a) being a natural person, has died, or is
permanently resident outside the
Commonwealth of Australia and its
Territories, or cannot after due inquiry and
25 search be found; or
(b) being a corporation (other than a company
which is an externally-administered body
corporate under the Corporations Act) has
ceased to exist; or
30 (c) being a company, corporation, society,
association or other body (other than a
company which is an externally-
administered body corporate under the
Corporations Act), was, at the time when it
35 commenced to employ the worker,
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registered as a foreign company under the
Corporations Act and is not, at the time of
the declaration, so registered; or
(d) being a company, is an externally-
5 administered body corporate under the
Corporations Act.
(3) If a declaration under this section is in force on
the application of a worker, the Authority is
deemed to be the employer in respect of the
10 liability of the employer to the worker under this
Act and at common law or otherwise.
Division 3--Entitlement to compensation
37 Entitlement to compensation only if employment
connected with Victoria
15 (1) There is no entitlement to compensation under this
Act other than in respect of employment that is
connected with this State.
(2) The fact that a worker is outside this State when
the injury happens does not prevent an entitlement
20 to compensation arising under this Act in respect
of employment that is connected with this State.
(3) A worker's employment is connected with--
(a) the State in which the worker usually works
in that employment; or
25 (b) if no State or no one State is identified under
paragraph (a), the State in which the worker
is usually based for the purposes of that
employment; or
(c) if no State or no one State is identified under
30 paragraph (a) or (b), the State in which the
employer's principal place of business in
Australia is located.
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(4) In the case of a worker working on a ship, if no
State or no one State is identified under subsection
(3), the worker's employment is, while working on
a ship, connected with the State in which the ship
5 is registered or (if the ship is registered in more
than one State) the State in which the ship most
recently became registered.
(5) If no State is identified under subsection (3) or, if
applicable, subsection (4), a worker's employment
10 is connected with this State if--
(a) the worker is in this State when the injury
happens; and
(b) there is no place outside Australia under the
legislation of which the worker may be
15 entitled to compensation for the same matter.
(6) In deciding whether a worker usually works in a
State, regard must be had to the worker's work
history with the employer over the preceding
12 months and the intentions of the worker and
20 employer. However, regard must not be had to
any temporary arrangement under which the
worker works in a State for a period of not longer
than 6 months.
(7) Subject to subsection (6), in determining whether
25 a worker usually works in a State or is usually
based in a State for the purposes of employment,
regard must be had to any period during which a
worker works in a State or is in a State for the
purposes of employment whether or not under the
30 statutory workers compensation scheme of that
State the person is regarded as a worker or as
working or employed in that State.
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(8) Compensation under this Act does not apply in
respect of the employment of a worker on a ship if
the Seafarers Rehabilitation and Compensation
Act 1992 of the Commonwealth applies to the
5 worker's employment.
(9) In this section--
ship means any kind of vessel used in navigation
by water, however propelled or moved, and
includes--
10 (a) a barge, lighter, or other floating vessel;
and
(b) an air-cushion vehicle, or other similar
craft--
used wholly or primarily in navigation by
15 water;
State includes--
(a) Territory; and
(b) the offshore area, within the meaning of
the Offshore Petroleum and
20 Greenhouse Gas Storage Act 2006 of
the Commonwealth, of the relevant
State or Territory.
38 Application to sailors
(1) This Act applies with the following modifications
25 in respect of an injury that happens on a ship to a
sailor working on the ship where the sailor's
employment is connected with Victoria--
(a) except where the sailor is the master, the
notice of injury and the claim for
30 compensation may be served on the master
of the ship as if the master were the
employer;
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(b) if the injury happens, and the incapacity
commences, on board the ship, it is not
necessary to give any notice of injury;
(c) a claim for compensation in respect of the
5 death of a sailor must be made within
6 months after notice of the death has been
received by the claimant;
(d) if a ship is lost with all hands a claim for
compensation in respect of the death of a
10 sailor must be made within 18 months after
the date on which the ship is deemed under
subsection (2) to have been lost with all
hands;
(e) if a sailor dies without leaving any
15 dependants, compensation is not payable if
the owner or charterer of the ship is liable to
pay the expenses of burial or cremation
under any Act in force in Victoria;
(f) weekly payments are not payable for any
20 period during which the owner or charterer
of the ship is liable to pay the expenses of
maintenance of any injured sailor;
(g) notwithstanding any limitation of liability in
any other law, compensation must be paid in
25 full.
(2) Without prejudice to any other means of proof
available--
(a) a ship is deemed to have been lost with all
hands on board if it is shown by an official
30 return produced out of official custody or
other evidence that the ship left a port of
departure at least 12 months before the
institution of proceedings under this Act and
has not been heard of since that departure;
35 and
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(b) a duplicate agreement or list of the crew of a
ship lost with all hands made out and
produced by the proper officer out of official
custody is, in the absence of proof to the
5 contrary, sufficient evidence that the sailors
named were on board at the time the ship
was lost.
(3) In this section--
port includes place or harbour;
10 sailor means any person working on board a ship;
ship has the same meaning as in section 37.
39 Entitlement to compensation
(1) If there is caused to a worker an injury arising out
of or in the course of any employment, the worker
15 is entitled to compensation in accordance with this
Act.
(2) If there is caused to a worker an injury arising out
of or in the course of any employment which
results in or materially contributes to the death of
20 the worker, the worker's dependants are entitled,
subject to this Act, to compensation in accordance
with this Act.
(3) Subject to section 7(1) and section 40(2) and (3),
if a worker suffers an injury which occurs by way
25 of a gradual process over time and which is due to
the nature of employment in which the worker
was employed at any time before notice of the
injury was given, the worker or the worker's
dependants are entitled to compensation under this
30 Act as if the injury were an injury arising out of or
in the course of employment.
(4) If section 40 or 41 operates to prevent a worker or
the worker's dependants recovering compensation
in respect of an injury, the worker or the worker's
35 dependants cannot rely on this section to claim to
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be entitled to take any other action or proceedings
in respect of the injury whether under or in
accordance with this Act or otherwise.
40 When no entitlement to compensation
5 (1) There is no entitlement to compensation in 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
10 grounds and in a reasonable manner by or on
behalf of the worker's employer;
(b) a decision of the worker's employer, on
reasonable grounds, to take, or not to take,
any management action;
15 (c) any expectation by the worker that any
management action would, or would not, be
taken or any decision made to take, or not to
take, any management action;
(d) an application under section 81B of the
20 Local Government Act 1989, or
proceedings as a result of such an
application, in relation to the conduct of a
worker who is a Councillor within the
meaning of clause 15 of Schedule 1.
25 (2) There is no entitlement to compensation in respect
of a heart attack injury or stroke injury that arises
in the course of, or that was caused by, a disease,
unless the worker's employment was a significant
contributing factor to the injury or to the disease.
30 (3) There is no entitlement to compensation in respect
of the following injuries unless the worker's
employment was a significant contributing factor
to the injury--
(a) a heart attack injury or stroke injury to which
35 subsection (2) does not apply;
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(b) a disease contracted by a worker in the
course of the worker's employment (whether
at, or away from, the place of employment);
(c) a recurrence, aggravation, acceleration,
5 exacerbation or deterioration of any
pre-existing injury or disease.
(4) If it is proved that an injury to a worker (whether
or not intended to be inflicted) was deliberately or
wilfully self-inflicted, there is no entitlement to
10 compensation in respect of that injury.
(5) Subject to sections 42, 43 and 44, if it is proved
that an injury to a worker is attributable to the
worker's serious and wilful misconduct (including,
but not limited to, being under the influence of
15 intoxicating liquor or a drug), there is no
entitlement to compensation in respect of that
injury.
(6) Subsection (5) does not apply if the injury results
in death or severe injury.
20 (7) In this section--
management action, in relation to a worker,
includes, but is not limited to, any one or
more of the following--
(a) appraisal of the worker's performance;
25 (b) counselling of the worker;
(c) suspension or stand-down of the
worker's employment;
(d) disciplinary action taken in respect of
the worker's employment;
30 (e) transfer of the worker's employment;
(f) demotion, redeployment or
retrenchment of the worker;
(g) dismissal of the worker;
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(h) promotion of the worker;
(i) reclassification of the worker's
employment position;
(j) provision of leave of absence to the
5 worker;
(k) provision to the worker of a benefit
connected with the worker's
employment;
(l) training a worker in respect of the
10 worker's employment;
(m) investigation by the worker's employer
of any alleged misconduct--
(i) of the worker; or
(ii) of any other person relating to the
15 employer's workforce in which the
worker was involved or to which
the worker was a witness;
(n) communication in connection with an
action mentioned in any of the above
20 paragraphs;
permanent blindness means--
(a) a field of vision that is constricted to
10 degrees or less of arc from central
fixation in the better eye, irrespective of
25 corrected visual acuity; or
(b) a corrected visual acuity of less than
6/60 on the Snellen Scale in both eyes;
or
(c) a combination of visual defects
30 resulting in the same degree of visual
loss as referred to in paragraph (a)
or (b);
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severe injury means any of the following--
(a) a significant acquired permanent brain
injury;
(b) permanent paraplegia;
5 (c) permanent quadriplegia;
(d) amputation of a limb, hand or foot;
(e) full thickness burns that--
(i) cause permanent severe
disfigurement to the head or neck
10 or an arm or a lower leg; or
(ii) result in a significant permanent
inability to undertake the
necessary activities of daily living;
(f) an injury that results in permanent
15 blindness;
(g) a brachial plexus injury that results in
the permanent effective loss of the use
of a limb;
(h) a physical internal injury that results in
20 a significant permanent inability to
undertake the necessary activities of
daily living.
41 Pre-existing injury or disease
(1) Subsection (2) applies if it is proved that, before
25 commencing employment with the employer--
(a) a worker had a pre-existing injury or disease
of which the worker was aware; and
(b) the employer in writing--
(i) advised the worker as to the nature of
30 the proposed employment; and
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(ii) requested the worker to disclose all
pre-existing injuries and diseases
suffered by the worker of which the
worker was aware and could reasonably
5 be expected to foresee could be affected
by the nature of the proposed
employment; and
(iii) advised the worker that subsection (2)
will apply to a failure to make such a
10 disclosure or the making of a false or
misleading disclosure; and
(iv) advised the worker as to the effect of
subsection (2) on the worker's
entitlement to compensation; and
15 (c) the worker failed to make such a disclosure
or made a false or misleading disclosure.
(2) If this subsection applies, any recurrence,
aggravation, acceleration, exacerbation or
deterioration of the pre-existing injury or disease
20 arising out of or in the course of or due to the
nature of employment with the employer does not
entitle the worker to compensation under this Act.
42 Circumstances in which weekly payments are
reduced because of conviction for drink-driving
25 offence
(1) This section applies if--
(a) a worker's incapacity for work results from,
or is materially contributed to by, an injury
that--
30 (i) entitles the worker to 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 the time of the
35 accident; and
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(b) in respect of such driving, the worker is
convicted or found guilty of an offence under
section 49(1)(b), (f) or (g) of the Road
Safety Act 1986 or under a law that is
5 declared to be a corresponding law under
section 47A(2) of that Act.
(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 Part 5 is
10 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 accordance
with section 188--
(a) if the level of alcohol in the worker's blood
15 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 air, by one third; or
20 (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 less than 0·12 grams
and less than 0·24 grams per 210 litres of
25 exhaled air, by two thirds.
(3) In respect of a worker (other than a worker to
whom section 52 of the Road Safety Act 1986
applies), compensation in the form of weekly
payments under Part 5 is reduced for a period of
30 130 weeks (whether or not consecutive) from the
date on which notice of the reduction is given to
the worker in accordance with section 188--
(a) if the level of alcohol in the worker's blood
was not less than 0·05 grams, and less than
35 0·12 grams per 100 millilitres of blood or in
the worker's breath not less than 0·05 grams
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and less than 0·12 grams per 210 litres of
exhaled air, by one third; or
(b) if the level of alcohol in the worker's blood
was not less than 0·12 grams and less than
5 0·24 grams per 100 millilitres of blood or in
the worker's breath not 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--
10 (a) the injury results in death or is a severe
injury within the meaning of section 40; or
(b) the worker satisfies the Authority or self-
insurer that the concentration of, or presence
of, alcohol in the blood or the breath of the
15 worker did not contribute in any way to the
injury.
43 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 compensation in
25 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 the time of the
accident; and
30 (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 of another
State or of a Territory that is declared to be a
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corresponding law under section 47A(2) of
that Act.
(2) Compensation in the form of weekly payments
under Part 5 is reduced by one third for a period of
5 130 weeks (whether or not consecutive) from the
date on which notice of the reduction was given to
the worker in accordance with section 188.
(3) This section does not apply--
(a) if the injury results in death or is a severe
10 injury within the meaning of section 40; or
(b) the worker satisfies the Authority or 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.
15 44 No entitlement to compensation where 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 accident
20 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
25 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 100 millilitres
30 of blood or in the worker's breath was
0·24 grams or more per 210 litres of
exhaled air; or
(ii) sections 49(1)(a), (ba), (c), (ca), (d), (e),
(ea) or (eb), 56(2) or 56(7) of the Road
35 Safety Act 1986; or
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(iii) section 318 or 319 of the Crimes Act
1958; or
(iv) a law of another State or of a Territory
that is declared to be a corresponding
5 law under section 47A(2) of the Road
Safety Act 1986.
(2) This section does not apply--
(a) if the injury results in death or is a severe
injury within the meaning of section 40; or
10 (b) where the worker is convicted or found
guilty of an offence specified in subsection
(1)(b)(i) or (iii), the worker satisfies the
Authority or self-insurer that the
concentration of, or presence of, alcohol in
15 his or her blood or breath, or the
concentration of, or presence of, drugs in his
or her blood or oral fluid, did not contribute
in any way to the injury.
45 If conviction or finding of guilt overturned
20 (1) This section applies if--
(a) compensation in the form of weekly
payments to a worker--
(i) has been reduced in accordance with
section 42 or 43; or
25 (ii) in accordance with section 44, is not
payable--
after the worker has been convicted or found
guilty of an offence; and
(b) the conviction or finding is overturned on
30 appeal.
(2) If this section applies, the Authority or self-insurer
must pay to the worker, subject to and in
accordance with this Act--
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(a) 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 each such amount, in
5 respect of the period from the date on which
the payment was due until the date on which
the amount is paid; and
(b) all amounts of compensation not paid in
accordance with section 44 and to which, but
10 for the conviction or finding of guilt, the
worker would have been entitled.
46 Out of or in the course of employment
(1) An injury to a worker is deemed to arise out of or
in the course of employment for the purposes of
15 section 39(1) and (2) if the injury occurs--
(a) while the worker on any working day that
the worker attended at the place of
employment having been present at the place
of employment is temporarily absent on that
20 day during any authorised recess and does
not during that absence voluntarily subject
himself or herself to any abnormal risk of
injury; or
(b) while the worker is, having regard to the
25 nature of the worker's employment or any
specific task which may require the worker
to travel, travelling for the purposes of the
worker's employment; or
(c) while the worker is in attendance at any
30 school for the purposes of any trade,
technical or other training which the worker
is required to attend by the terms of his or
her employment or as an apprentice or which
the worker is expected to attend by the
35 employer; or
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(d) while the worker is in attendance at any
place for the purpose of obtaining a medical
certificate, receiving medical, surgical or
hospital advice, attention or treatment,
5 receiving a personal and household service
or an occupational rehabilitation service or
receiving a payment of compensation in
connection with any injury for which the
worker is entitled to receive compensation or
10 for the purpose of submitting to a medical
examination required by or under this Act.
(2) For the purposes of this section--
(a) place of employment, if there is no fixed
place of employment, includes the whole
15 area, scope or ambit of employment;
(b) travelling for the purposes of a worker's
employment does not include travelling to
and from the worker's place of employment
or the places referred to in subsections (1)(c)
20 and (1)(d);
(c) an injury incurred while travelling for the
purposes of a worker's employment is
deemed not to have arisen out of or in the
course of any employment if the injury
25 occurred during or after any substantial
interruption of or substantial deviation from
the worker's journey made for a reason
unconnected with his or her employment;
(d) an injury is deemed to arise out of or in the
30 course of employment even though at the
time that the injury happened the worker
was--
(i) acting in contravention of any
regulation (whether by or under an Act
35 or otherwise) applicable to the work; or
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(ii) acting without instructions from the
employer--
if the act was done by the worker for the
purposes of and in connection with the
5 employer's trade or business.
47 Compensation for workers injured outside Australia
(1) If an employer who resides, or has a place of
business, in Victoria engages a worker in Victoria
and an injury is caused to or suffered by the
10 worker outside Australia in circumstances which,
had the injury occurred in Victoria, would have
entitled the worker or the worker's dependants to
compensation--
(a) the worker; or
15 (b) in the case of the death of the worker, the
worker's dependants--
are entitled to compensation in accordance with
this Act.
(2) If, outside Australia, an injury is caused to or
20 suffered by a worker to whom this Act applies
because of clause 14 of Schedule 1 in
circumstances that, had the injury occurred in
Victoria, would have entitled the worker or the
worker's dependants to compensation--
25 (a) the worker; or
(b) in the case of the death of the worker, the
worker's dependants--
are entitled to compensation in accordance with
this Act.
30 (3) For the purposes of this Act, a worker to whom
this Act applies because of clause 14 of
Schedule 1 who is directed, as such a worker, to
work for, or under the direction of, any other
person outside Victoria (whether within or outside
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Australia), is deemed to continue to be a worker to
whom this Act applies.
(4) This section does not apply in respect of an injury
caused to or suffered by a worker outside
5 Australia if the worker--
(a) has never resided in Australia; or
(b) had ceased to reside in Australia at the time
the injury occurred.
48 Person not to be compensated twice
10 (1) Compensation under this Act is not payable in
respect of an injury to the extent that
compensation has been received in respect of the
same injury under the laws of a place other than
this State (whether within or outside Australia).
15 (2) If a person receives compensation under this Act
in respect of an injury and, in respect of the same
injury, subsequently receives compensation under
the laws of a place other than this State (whether
within or outside Australia), the person from
20 whom compensation under this Act is received
may, in a court of competent jurisdiction, sue and
recover from the person the amount described in
subsection (3).
(3) The amount that is recoverable under
25 subsection (2) is--
(a) the amount of compensation paid under this
Act; or
(b) the amount of compensation received under
the laws of the place other than this State--
30 whichever is less.
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49 Entitlement to damages outside Victoria
(1) This section applies if an injury is caused to, or
suffered by, a worker which gives the worker a
right of action under the law of a place outside
5 Victoria (whether within or outside Australia) in
circumstances which would otherwise have
entitled the worker or the worker's dependants to
compensation under this Act.
(2) Subject to subsection (3), if--
10 (a) damages have not been paid or recovered;
and
(b) judgment for damages has not been given or
entered--
in respect of the injury under the law of any place
15 outside Victoria (whether within or outside
Australia), the worker or, in the case of the death
of the worker, the worker's dependants, are
entitled to compensation under this Act as if there
were no right of action under the law of any place
20 outside Victoria.
(3) A person who has a right of action in respect of an
injury under the law of any place outside Victoria
(whether within or outside Australia) is not
entitled to claim compensation in respect of the
25 injury under this Act if, in respect of the injury
under the law of any place outside Victoria--
(a) the person has been paid or recovered any
amount of damages; or
(b) judgment for damages has been given or
30 entered; or
(c) any payment into court has been accepted; or
(d) there has been a settlement or compromise of
any claim; or
(e) any action for damages is pending.
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(4) If--
(a) damages have been paid or recovered; or
(b) judgment for damages has been given or
entered--
5 in respect of the injury under the law of any place
outside Victoria (whether within or outside
Australia) the worker or, in the case of the death
of the worker, the worker's dependants, are not
entitled to compensation under this Act.
10 (5) The worker or, in the case of the death of the
worker, the worker's dependants are not entitled to
compensation under this Act if--
(a) a payment into court has been accepted by
the worker or the worker's dependants in
15 proceedings; or
(b) a settlement or compromise of a claim has
been made--
in respect of the injury under the law of any place
outside Victoria (whether within or outside
20 Australia).
(6) If a person--
(a) receives compensation under this Act in
respect of any injury; and
(b) subsequently obtains damages or an award of
25 damages, accepts a payment into court or
settles or compromises a claim in respect of
the injury under the law of any place outside
Victoria (whether within or outside
Australia)--
30 the Authority, employer or a self-insurer is
entitled to recover from that person the amount of
compensation paid under this Act or an amount
equal to the damages or payment obtained or
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made, settled or compromised, whichever is the
lesser amount.
(7) Any dispute under subsection (6) must be
determined by a court of competent jurisdiction.
5 (8) Unless a worker produces satisfactory evidence to
the contrary, any amount recovered or to be
recovered by a worker under the law of any place
outside Victoria (whether within or outside
Australia) as damages in respect of an injury is
10 presumed to be damages for the same injury in
respect of which the worker claims compensation
or a right of action under this Act.
50 Compensation for disease due to employment
(1) Subject to section 7(1), section 40(2) and
15 subsection (3) of this section, if--
(a) a worker suffers a disease that results in, or
materially contributes to, the worker having
either a current work capacity or no current
work capacity; or
20 (b) the death of a worker is caused, or materially
contributed to, by a disease--
and the disease is due to the nature of any
employment in which the worker was employed at
any time on or after 1 July 2014 before notice of
25 an injury relating to the disease is given under
section 18, the worker or the worker's dependants
are entitled to compensation under this Act as if
the disease were an injury arising out of or in the
course of employment.
30 (2) For the purposes of subsection (1), a disease
suffered by a worker is to be regarded as due to
the nature of employment if, and only if, the
nature of the employment gave rise to a
significantly greater risk of the worker contracting
35 the disease than had the worker not been
employed in employment of that nature.
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(3) Despite subsection (1), compensation is not
payable in respect of a disease to the extent that
the disease consists of, is caused by, results in or
is associated with, a heart attack injury or a stroke
5 injury unless the worker's employment was a
significant contributing factor to the disease or to
the injury.
51 Proclaimed diseases
(1) The Governor in Council, after consultation by the
10 Minister with the Authority, may by proclamation
published in the Government Gazette from time to
time proclaim diseases in relation to places,
processes or occupations for the purpose of this
section.
15 (2) Without derogating from section 50, if at the time
a claim was made, a proclamation under
subsection (1) was in force and--
(a) the worker has been employed at any place
or in any process or occupation proclaimed
20 under subsection (1); and
(b) has contracted a disease specified in relation
to that place, process or occupation--
then the disease is deemed to be due to the nature
of the employment at such place or in such
25 process or occupation unless the employer or the
Authority or a self-insurer, as the case may be,
proves to the contrary.
(3) A disease contracted by a worker is deemed to be
a disease specified in a proclamation under
30 subsection (1) in relation to a place, process or
occupation if the Authority, a self-insurer, the
Magistrates' Court or the County Court (as the
case requires) is satisfied that the disease
contracted is substantially the same disease as the
35 disease specified in the proclamation.
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(4) The Subordinate Legislation Act 1994 does not
apply to the first proclamation made and
published under this section.
Division 4--Assessment of impairment
5 Subdivision 1--Preliminary
52 Definitions
In this Division--
compensation law means this Act, the Workers
Compensation Act 1958 or the Accident
10 Compensation Act 1985 or any other
workers compensation law of the
Commonwealth or a State or Territory of the
Commonwealth;
further injury means a further loss of hearing in
15 respect of industrial deafness after a worker
has on one or more occasions suffered a
prior injury;
prior hearing loss means a loss of hearing for
which a worker has received compensation
20 under a compensation law for loss of
hearing;
prior injury means industrial deafness for which
the worker has received or become entitled
to receive compensation for loss of hearing.
25 53 Application of this Division to Division 5 of Part 5
and Part 7
(1) For the purposes of Division 5 of Part 5--
(a) impairments, other than psychiatric
impairments, resulting from injuries which
30 arose out of the same incident or occurred on
the same date are to be assessed together
using the combination formula in the A.M.A
Guides; and
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(b) assessments are to specify the whole person
values for each chapter of the A.M.A Guides
used in the assessment.
(2) For the purposes of Division 5 of Part 5 and
5 Part 7--
(a) if a worker presents for assessment in
relation to injuries which occurred on
different dates, the impairments are to be
assessed chronologically by date of injury;
10 and
(b) impairments from unrelated injuries or
causes are to be disregarded in making an
assessment.
Subdivision 2--Assessment in accordance with
15 A.M.A Guides
54 Assessment of impairment
(1) In this Act, a reference to the assessment of a
degree of impairment in accordance with this
Division is a reference to an assessment--
20 (a) made in accordance with--
(i) the A.M.A Guides as applicable subject
to this section, section 55 and the
guidelines referred to in Subdivision 4;
or
25 (ii) methods prescribed for the purposes of
this section--
and in accordance with operational
guidelines (if any) as to the use of those
Guides or methods issued by the Minister;
30 and
(b) if the Minister has approved a training course
in the application of those Guides or
methods, made by a medical practitioner
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who has successfully completed such a
training course.
(2) The A.M.A Guides apply in respect of an
assessment under section 3.3d of Chapter 3 of the
5 A.M.A Guides as if the following were omitted--
"with the Injury Model, surgery to treat an
impairment does not modify the original
impairment estimate, which remains the
same in spite of any changes in signs or
10 symptoms that may follow the surgery and
irrespective of whether the patient has a
favourable or unfavourable response to
treatment".
(3) Despite anything to the contrary in the A.M.A
15 Guides, in determining a person's degree of
impairment, a number determined under the
A.M.A Guides is not to be rounded up or down,
except as provided in subsection (4), regardless of
whether the number represents an initial, an
20 intermediate, a combined or a final value, unless
the rounding is expressly required or permitted by
this Act.
(4) A number determined under the A.M.A Guides
must be rounded to the nearest whole per cent.
25 Example
A final degree of impairment of 9·5 per cent must be
rounded to 10 per cent. A final degree of impairment of
84 per cent must be rounded to 8 per cent.
(5) For the purposes of this Act, the A.M.A Guides
30 may be modified by the regulations.
(6) If a regulation is made for the purposes of
subsection (5), the A.M.A Guides as modified by
the regulations apply only in respect of an injury
occurring on or after the date the modification
35 takes effect.
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(7) Any operational guidelines issued by the Minister
for the purposes of subsection (1)(a) must be--
(a) published in the Government Gazette and on
a Government Internet website; and
5 (b) available for inspection by members of the
public without charge at the office of the
Authority during normal business hours.
55 When and how to make an assessment of
impairment
10 Despite anything to the contrary in the A.M.A
Guides, an assessment under this Division of the
degree of impairment resulting from an injury
must be made--
(a) after the injury has stabilised; and
15 (b) subject to section 53, based on the worker's
current impairment as at the date of the
assessment, including any changes in the
signs and symptoms following any medical
or surgical treatment undergone by the
20 worker in respect of the injury.
56 Injury, impairment or symptoms consequential or
secondary to physical injury
In assessing a degree of impairment in accordance
with this Division, regard must not be had to any
25 psychiatric or psychological injury, impairment or
symptoms arising as a consequence of, or
secondary to, a physical injury.
Subdivision 3--Industrial deafness
57 Compensation for industrial deafness
30 Compensation for industrial deafness must be
determined in accordance with this Division and
Divisions 2, 4, 5 and 7 of Part 5.
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58 Excluded deafness
(1) Impairment from industrial deafness, or a
proportion of impairment from industrial
deafness, that has occurred in circumstances that
5 do not create any liability to pay compensation
under this Act must be excluded from the
assessment of deafness for the purposes of
assessing the degree of impairment as at the time
the assessment is made.
10 (2) Industrial deafness, or a proportion of industrial
deafness, that has occurred in circumstances that
do not create any liability to pay compensation
under this Act must be excluded from the
assessment of deafness for the purposes of
15 calculating compensation under this Act.
59 Industrial deafness deemed to occur at constant rate
(1) Unless the Authority, a self-insurer, a Medical
Panel, the Magistrates' Court or the County Court
(as the case requires) determines otherwise, when
20 the assessment of the degree of impairment from
industrial deafness is made under this Act, the
impairment from industrial deafness is deemed to
have occurred at a constant rate within the total
number of years of exposure to industrial noise in
25 employment.
(2) Unless the Authority, a self-insurer, a Medical
Panel, the Magistrates' Court or the County Court
(as the case requires) determines otherwise,
industrial deafness is deemed to have occurred at
30 a constant rate within the total number of years of
exposure to industrial noise in employment.
60 Assessment of industrial deafness
(1) Despite section 59 and subject to subsection (2), if
a worker sustains industrial deafness, the injury is
35 deemed to have been sustained by the worker on
the last day on which the worker was--
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(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 out of
5 or in the course of the worker's employment.
(2) Despite section 59, if a worker sustains industrial
deafness and on the day on which the worker
gives, serves or lodges a claim for compensation
in respect of the injury, the worker is still--
10 (a) performing duties; or
(b) exposed to conditions--
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
15 have been sustained on that day.
61 Further diminution of hearing
(1) Subject to subsection (3), a worker who suffers a
further injury is entitled to receive in respect of
the further injury, in addition to any other
20 compensation payable in accordance with this
Act, compensation in accordance with
section 213, being compensation referrable to a
percentage calculated in accordance with
subsection (2) of the amount that would have been
25 payable for a total loss of hearing.
(2) The percentage is the difference between--
(a) the total percentage of the diminution of
hearing in respect of industrial deafness from
which the worker was suffering immediately
30 after the further injury in respect of which
the claim is made; and
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Note
The percentage NAL loss is to be determined in
accordance with section 63(4). The percentage
NAL loss is then converted in accordance with
5 section 63(1).
(b) the total percentage of the diminution of
hearing in respect of industrial deafness
immediately after the prior injury or prior
hearing loss or in the case of more than one
10 prior injury or prior hearing loss the latest of
the prior injuries or prior hearing losses.
Note
The percentage NAL loss is to be determined in
accordance with subsection (5). The percentage NAL
15 loss is then converted in accordance with
section 63(3).
(3) Despite anything to the contrary in this Act, a
worker who suffers a further injury is not entitled
to compensation under this section or Division 5
20 of Part 5, unless the worker has a diminution of
hearing assessed as a binaural loss of hearing of at
least 10 per cent NAL resulting from the further
injury and any prior injury or prior hearing loss.
(4) The total percentage referred to in subsection
25 (2)(a) is to be determined in accordance with
section 63(4).
(5) The total percentage referred to in subsection
(2)(b) is to be determined by reference to--
(a) if a percentage has been determined in
30 accordance with the Improved Procedure for
Determination of Percentage Loss of Hearing
(1988 Edition or a later prescribed edition)
published by the National Acoustic
Laboratory, that percentage; or
35 (b) in any other case, the percentage which,
having regard to the medical evidence
available, is determined to be the equivalent
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of the percentage that (as nearly as can be
estimated) would have been determined in
accordance with the Improved Procedure for
Determination of Percentage Loss of Hearing
5 (1988 Edition or a later prescribed edition)
published by the National Acoustic
Laboratory.
(6) If a worker disputes the total percentage referred
to in subsection (2)(b) as determined in
10 accordance with subsection (5), the Authority,
self-insurer or a court must refer the question of
what is the amount of the total percentage referred
to in subsection (2)(b) as a medical question to a
Medical Panel for an opinion.
15 (7) For the purposes of this section the register kept
under section 62(5) must be taken into account.
62 Effect of determination for industrial deafness
(1) A determination for the payment of compensation
for industrial deafness which is not reviewed is a
20 final determination in respect of the percentage of
the diminution of the worker's hearing on the date
on which the worker advises the Authority or self-
insurer that the worker accepts the determination.
(2) A determination for the payment of compensation
25 must state the percentage of diminution of the
worker's hearing in respect of industrial deafness
at the date of the determination in relation to
which the amount of the compensation is
assessed.
30 (3) A determination for compensation for industrial
deafness under this Act fully extinguishes all
rights of the worker to compensation for industrial
deafness under Division 5 of Part 5 or under
section 98, 98C or 98E of the Accident
35 Compensation Act 1985 or under the Workers
Compensation Act 1958 up to the date of the
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determination but does not prevent the worker
from obtaining compensation under Division 5 of
Part 5 for further industrial deafness suffered after
that date.
5 (4) The Authority must be advised of any
determination for the payment of compensation
for industrial deafness.
(5) The Authority must keep a register of
determinations for the payment of compensation
10 for industrial deafness advised under
subsection (4).
63 Assessing degree of impairment of whole person
(1) For the purposes of assessing the degree of
impairment of the whole person resulting from
15 diminution of hearing, the percentage of the
diminution of hearing determined in accordance
with subsection (4) is to be converted as
follows--
(a) if the diminution of hearing assessed as a
20 binaural loss of hearing is less than 10 per
cent NAL, the degree of impairment is zero;
(b) if the diminution of hearing assessed as a
binaural loss of hearing is 10 per cent NAL,
the degree of impairment is 10 per cent;
25 (c) if the diminution of hearing assessed as a
binaural loss of hearing is more than 10 per
cent NAL, the degree of impairment is the
percentage equivalent of the number
(rounded up to the next whole number) given
30 by the formula--
10 + [0278 (NAL - 10)]--
where NAL is the percentage of diminution of
hearing determined in accordance with
subsection (4).
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(2) In the case of a further injury, for the purposes of
assessing the degree of impairment of the whole
person resulting from a diminution of hearing
assessed as a binaural hearing impairment from
5 which the worker was suffering immediately after
the further injury in respect of which the claim
is made, the percentage of the diminution of
hearing is to be determined in accordance with
subsection (4) and converted in accordance with
10 subsection (1).
(3) In the case of a further injury, for the purposes of
assessing the degree of impairment of the whole
person resulting from a diminution of hearing in
respect of prior injury or prior hearing loss, the
15 percentage of the diminution of hearing is to be
determined in accordance with section 61(5)
and (6) and converted as follows--
(a) if the diminution of hearing assessed as a
binaural loss of hearing is less than 10 per
20 cent NAL, the degree of impairment is equal
to that per cent (rounded up to the next
whole number);
(b) if the diminution of hearing assessed as a
binaural loss of hearing is 10 per cent NAL,
25 the degree of impairment is 10 per cent;
(c) if the diminution of hearing assessed as a
binaural loss of hearing is more than 10 per
cent NAL, the degree of impairment is the
percentage equivalent of the number
30 (rounded up to the next whole number) given
by the formula--
10 + [0278 (NAL - 10)]--
where NAL is the percentage of diminution of
hearing determined in accordance with
35 section 61(5) and (6).
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(4) For the purposes of this section and section
61(2)(a), the percentage of diminution of
hearing--
(a) must be assessed as a binaural loss of
5 hearing and determined--
(i) by a person or class of persons
approved; and
(ii) in the manner approved--
by the Minister; and
10 (b) must be assessed as a binaural loss of
hearing and determined in accordance with
the Improved Procedure for Determination of
Percentage Loss of Hearing (1988 Edition or
a later prescribed edition) published by the
15 National Acoustic Laboratory.
(5) An approval by the Minister for the purposes of
subsection (4) continues in force for the period not
exceeding 3 years as is specified by the Minister
in the approval unless revoked by the Minister.
20 Subdivision 4--Assessment of psychiatric, asthma and
infectious disease impairment
64 Psychiatric impairment
For the purposes of assessing the degree of
psychiatric impairment, the A.M.A Guides
25 apply--
(a) subject to any regulations made for the
purposes of this section; and
(b) as if, for Chapter 14 of those Guides, there
were substituted the guidelines entitled
30 "The Guide to the Evaluation of Psychiatric
Impairment for Clinicians" in force under
section 67.
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65 Occupational asthma impairment
(1) For the purposes of assessing the degree of
occupational asthma impairment, the A.M.A
Guides apply--
5 (a) subject to any regulations made for the
purposes of this section; and
(b) as if for Chapter 5, Tables 8 and 10 of those
Guides there were substituted the guidelines
entitled "Impairment Assessment in Workers
10 with Occupational Asthma" in force under
section 67.
(2) In this section, occupational asthma has the
meaning given by the guidelines referred to in
subsection (1)(b).
15 66 Infectious occupational diseases
(1) For the purposes of assessing the degree of
infectious occupational diseases impairment the
A.M.A Guides apply--
(a) subject to any regulations made for the
20 purposes of this section; and
(b) subject to the guidelines entitled "Clinical
Guidelines to the Rating of Impairments
arising from Infectious Occupational
Diseases" in force under section 67.
25 (2) In this section, infectious occupational disease
has the meaning given by the guidelines referred
to in subsection (1)(b).
67 Guidelines referred to in this Subdivision
(1) Guidelines referred to in section 64, 65 or 66 may
30 be amended, varied or substituted by the
Authority with the approval of the Minister and,
as so amended, varied or substituted--
(a) must be published by the Authority in the
Government Gazette; and
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(b) have effect on the day after the day on which
they are published in the Government
Gazette.
(2) Until amended, varied or substituted in
5 accordance with subsection (1), the guidelines
referred to in this Subdivision are--
(a) The Guide to the Evaluation of Psychiatric
Impairment for Clinicians;
(b) Impairment Assessment in Workers with
10 Occupational Asthma;
(c) Clinical Guidelines to the Rating of
Impairments arising from Infectious
Occupational Diseases--
published in the Government Gazette dated
15 27 July 2006.
Subdivision 5--Assessment of spinal impairment
68 Spinal impairment
For the purposes of section 210(2)(a)(ii) and (iii),
an assessment of spinal impairment must specify
20 the whole person values derived in accordance
with section 3.3 of Chapter 3 of the A.M.A
Guides.
__________________
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PART 3--COMPENSATION AND CLAIMS
Division 1--Preliminary
69 Definitions
In this Part--
5 claimed employer means an employer that--
(a) considers that section 79(1)(a) or (b)
applies to the employer; and
(b) makes an objection under section 79;
lodged objection means an objection made by a
10 claimed employer and received by the
Authority under section 79.
Division 2--Liability and indemnity
70 Liability of Authority and employer
(1) The Authority, as well as the employer, is directly
15 liable to a worker and, in the event of the worker's
death, to the dependants of the worker, to pay
compensation and damages in accordance with
this Act or the Accident Compensation Act 1985
for which the employer is liable as an employer of
20 the worker in respect of injuries arising out of, or
in the course of, or due to the nature of,
employment.
(2) Without derogating from the generality of
subsection (1), the Authority is bound by, and
25 subject to, any judgment, order, decision, award or
determination given or made against the employer
of a worker in respect of the injury or death for
which compensation or damages is payable.
Note
30 See sections 72 and 93.
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71 Authority to indemnify employer
(1) The Authority is liable to indemnify an employer
in respect of the employer's liability as an
employer of a worker to pay compensation and
5 damages in accordance with this Act or the
Accident Compensation Act 1985, and liability
to make contribution under section 23B of the
Wrongs Act 1958 or a corresponding provision of
an Act of the Commonwealth, another State or a
10 Territory, for injuries suffered by the worker
arising out of, or in the course of, or due to the
nature of employment by the employer.
(2) The indemnity under subsection (1) does not
indemnify an employer in respect of any liability
15 of the employer to pay compensation for a matter
for which compensation is awarded under
Subdivision (1) of Division 2 of Part 4 of the
Sentencing Act 1991.
(3) Except as provided in this Act, an employer must
20 not--
(a) make or agree to make any payment or
settlement in relation to an injury or a claim
for compensation in respect of an injury, to a
worker or admit liability for any injury or
25 claim; or
(b) without the consent of the Authority, incur
any expense or cost in relation to any such
injury or claim.
(4) The Authority is subrogated to all rights of action
30 or recovery that an employer has against a person
in respect of--
(a) any claim for compensation;
(b) any claim for damages;
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(c) any claim for contribution under section 23B
of the Wrongs Act 1958 or a corresponding
provision of an Act of the Commonwealth,
another State or a Territory--
5 made by a worker employed by the employer, or
the dependants of a worker, including the right--
(d) to undertake the settlement of a claim against
the employer; and
(e) to take over during such period as it thinks fit
10 the control of a claim on behalf of the
employer in respect of proceedings brought
against the employer; and
(f) to defend or conduct any such proceedings
brought against the employer in the name of
15 the employer; and
(g) to pursue such form of appellate relief in the
name of the employer as the Authority thinks
fit; and
(h) to make decisions about the conduct of an
20 application made, or proceedings brought, by
the worker against the employer, including
decisions relating to determinations of whole
person impairment or serious injury, or both,
in respect of the worker.
25 (5) In this section, compensation and damages does
not include--
(a) the excess for which an employer is liable
under section 72 of this Act or section 125A
of the Accident Compensation Act 1985 on
30 each claim made by a worker; and
(b) an amount payable by an employer in respect
of a liability arising out of, or related to,
section 576 or 578 of this Act or
section 242AB or 242AD of the Accident
35 Compensation Act 1985.
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72 Employer's excess
(1) The Authority's indemnity to an employer under
this Act is subject to an employer's excess in
respect of each claim equal to--
5 (a) in the case of weekly payments in respect of
a full-time worker who--
(i) has no current work capacity; or
(ii) has a current work capacity--
the first 10 days of the period of incapacity
10 resulting from the relevant injury; and
(b) the proportion of the weekly payments in
respect of a worker who is not a full-time
worker of that employer and who--
(i) has no current work capacity; or
15 (ii) has a current work capacity--
for the first 10 days of the period of
incapacity resulting from the relevant injury;
and
(c) payment of the first $642 of the reasonable
20 costs referred to in section 224(1)(a) in
relation to the relevant injury.
(2) The proportion for the purposes of subsection
(1)(b) is the number of hours per week which the
worker works for the employer as a proportion of
25 the total number of hours per week which the
worker works for all employers.
(3) A payment made by an employer to a worker to
discharge the employer's liability under the
employer's excess does not prejudice the
30 determination of the liability of the employer
above the employer's excess.
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(4) If the Authority has set aside its decision to accept
a claim for compensation against a claimed
employer under section 84(1)(b), the claimed
employer--
5 (a) is not liable for any excess under
subsection (1); and
(b) may request a reimbursement of the excess
from the Authority.
(5) In subsection (1), a reference to a relevant injury
10 in relation to a worker does not include a
reference to a recurrence of any pre-existing
injury or disease in respect of which the worker is
entitled to compensation under this Act.
(6) Subject to guidelines made by the Authority in
15 accordance with section 612 and in accordance
with the premiums order, an employer may elect
to increase, reduce or eliminate the excess under
subsection (1) by paying an adjusted premium
under Part 10.
20 (7) A premiums order may specify different rates or
levels of premium for the purposes of this section.
(8) Subsection (1) does not apply to the liability to
pay compensation in respect of an injury to a
student worker.
25 (9) Subsection (1) does not apply to the liability to
pay compensation in respect of an injury--
(a) resulting from a transport accident within the
meaning of the Transport Accident Act
1986; and
30 (b) deemed to have arisen out of or in the course
of any employment by reason of section
46(1)(a) or (c).
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(10) For the purposes of subsection (1), in calculating
the first 10 days of the period of incapacity
resulting from the relevant injury--
(a) the day on which the incapacity commenced
5 must be included; and
(b) any day on which the worker would not have
worked if he or she had not suffered the
injury must be excluded.
Note
10 See Division 4 of Part IV of the Accident Compensation Act
1985 as to the liability for payment of compensation under that
Act. Section 125A of that Act specifies the employer's excess in
respect of claims for compensation in respect of an injury arising
on or after 4 p.m. on 30 June 1993 but before 1 July 2014.
15 Division 3--Claims management--General
73 Responsibilities of employer
(1) An employer must forward to the Authority the
following--
(a) any claim for compensation in the form of
20 weekly payments under this Act or the
Accident Compensation Act 1985;
(b) any relevant medical certificate in
accordance with section 25 relating to a
claim for compensation in the form of
25 weekly payments;
(c) any claim for compensation under Division 4
of Part 5;
(d) any claim for compensation under Division 7
of Part 5 which comes within the employer's
30 liability under the employer's excess under
section 72(1) and has not been paid by the
employer or which the employer will not pay
pending a decision by the Authority;
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(e) any claim for compensation under Division 7
of Part 5 which does not come within the
employer's liability under the employer's
excess under section 72(1);
5 (f) any claim for compensation under
section 235, 236, 237 or 241;
(g) any claim for compensation under
section 98, 98A, 98C or 98E of the Accident
Compensation Act 1985;
10 (h) any claim for compensation under
Division 2B of Part IV of the Accident
Compensation Act 1985 which comes
within the employer's liability under section
125(1)(a) of that Act or the employer's
15 excess under section 125A(3) of that Act and
has not been paid by the employer or which
the employer will not pay pending a decision
by the Authority;
(i) any claim for compensation under
20 Division 2B of Part IV of the Accident
Compensation Act 1985 which does not
come within the employer's liability under
section 125(1)(a) of that Act or the
employer's excess under section 125A(3) of
25 that Act;
(j) any claim for compensation under
section 92, 92A or 92B of the Accident
Compensation Act 1985--
within 10 days after the employer receives the
30 claim.
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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(2) An employer must forward to the Authority at
such intervals and dates as are determined by the
Authority a return in a form approved by the
Authority of claims for compensation under--
5 (a) Division 7 of Part 5 which do not exceed the
employer's liability under the employer's
excess under section 72(1); and
(b) Division 2B of Part IV of the Accident
Compensation Act 1985 which do not
10 exceed the employer's liability under section
125(1)(a) of that Act or the employer's
excess under section 125A(3) of that Act.
Penalty: In the case of a natural person,
60 penalty units;
15 In the case of a body corporate,
300 penalty units.
(3) An employer which fails without reasonable cause
to forward a claim for compensation in the form
of weekly payments or any relevant medical
20 certificate in accordance with section 25, whether
with the claim or at a later date, to the Authority
as required by this section is liable for weekly
payments made by the Authority to the worker
during the period--
25 (a) commencing--
(i) after the employer's liability under the
excess under section 72(1)(a) or (b) of
this Act or section 125(1)(a) or
125A(3)(a) or (b) of the Accident
30 Compensation Act 1985 is reached; or
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(ii) if the claim was accompanied by a
medical certificate in accordance with
section 25, on the day on which the
claim was given to or served on the
5 employer; or
(iii) if the claim was not accompanied by a
medical certificate in accordance with
section 25, on the day on which the
employer received the medical
10 certificate--
whichever is later, and ending on the later
of--
(iv) the day on which the claim for
compensation in the form of weekly
15 payments is received by the Authority;
or
(v) the day on which the medical certificate
is received by the Authority; or
(b) if section 72(6) of this Act or section
20 125A(6) of the Accident Compensation Act
1985 applies, commencing--
(i) immediately after the employer's
liability under section 72(1)(a) or (b) of
this Act or section 125A(3)(a) or (b) of
25 the Accident Compensation Act 1985
has been met by the Authority; or
(ii) if the claim was accompanied by a
medical certificate in accordance with
section 25, on the day on which the
30 claim was given to or served on the
employer; or
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(iii) if the claim is not accompanied by a
medical certificate in accordance with
section 25, on the day on which the
employer received the medical
5 certificate--
whichever is later, and ending on the later
of--
(iv) the day on which the claim for
compensation in the form of weekly
10 payments is received by the Authority;
or
(v) the day on which the medical certificate
is received by the Authority.
(4) The Authority may impose on an employer to
15 whom subsection (3) applies a penalty for the
failure referred to in that subsection in respect of
the relevant period referred to in that subsection
calculated in accordance with the method
determined under subsection (8).
20 (5) Subsections (3) and (4)--
(a) impose a liability and penalty which is in
addition to any other liability or penalty
under this Act;
(b) do not apply to an employer which is an
25 employer to whom section 30 applies;
(c) do not apply to an employer in relation to the
employment of a student worker.
(6) If an employer neglects, refuses or is unable to
reimburse the Authority in respect of the liability
30 imposed under subsection (3) or (4), the Authority
may recover an amount equal to that liability in a
court of competent jurisdiction as a debt due to the
Authority.
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(7) If the employer fails without reasonable cause to
forward a claim to the Authority as required by
this section, the Authority may--
(a) impose on the employer a penalty calculated
5 in accordance with the method determined
under subsection (8); or
(b) recover as a debt due to the Authority in any
court of competent jurisdiction an amount
equivalent to any cost or expense incurred by
10 the Authority solely as a result of the failure
to forward the claim as required.
(8) The Governor in Council, by Order published in
the Government Gazette, may determine the
method for calculating the penalty payable by an
15 employer who fails without reasonable cause to
forward a claim to the Authority as required by
this section.
(9) The Authority may recover a penalty imposed
under subsection (7)(a) in a court of competent
20 jurisdiction as a debt due to the Authority.
(10) This section does not apply to an employer who is
a self-insurer or an eligible subsidiary of a self-
insurer except in relation to the employment of a
student worker.
25 74 Guidelines
The Minister may make guidelines in accordance
with section 611 for the purposes of section 73
specifying the manner in which a claim for
compensation may be forwarded by an employer
30 to the Authority.
75 Responsibilities of self-insurers and the 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
35 payments--
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(a) if the claim was accompanied by a medical
certificate in accordance with section 25,
within 28 days after receiving the claim; or
(b) if the claim was not accompanied by a
5 medical certificate in accordance with
section 25, 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 compensation
10 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 reject a claim for
compensation for medical or like services under
15 Division 7 of Part 5 of this Act or Division 2B of
Part IV of the Accident Compensation Act 1985
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 of weekly
20 payments or for compensation for medical or like
services under Division 7 of Part 5 or Division 2B
of Part IV of the Accident Compensation Act
1985 must, in the case of a decision to reject the
claim, include a statement of the reasons for the
25 decision.
(4) If--
(a) a worker notifies the Authority of a claim
given to or served on the employer under
section 21(2); and
30 (b) the Authority receives from the employer,
within the period referred to in section 73(1),
the claim and the relevant medical certificate
in accordance with section 25, and does not
give notice of a decision to accept or reject
35 the claim within 28 days after the Authority
receives the claim and medical certificate--
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the claim is deemed to have been accepted 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
5 Act.
(5) If--
(a) a worker notifies the Authority of a claim
given to or served on the employer under
section 21(2) that is accompanied by a
10 medical certificate in accordance with
section 25; and
(b) the Authority does not receive the claim
from the employer within the period referred
to in section 73(1); and
15 (c) the Authority does not give notice of a
decision to accept or reject the claim within
39 days after the Authority receives notice of
the claim--
the claim is deemed to have been accepted by the
20 Authority and the Authority must pay
compensation in the form of weekly payments to
the worker, subject to and in accordance with this
Act.
(6) If the Authority receives a claim in accordance
25 with section 20(2) (not being a claim that has been
rejected under this section) for compensation in
the form of weekly payments that is accompanied
by the relevant medical certificate in accordance
with section 25 from the employer more than
30 28 days after the expiry of the period of 10 days
referred to in section 73(1)--
(a) the claim is deemed to have been accepted;
and
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(b) the Authority must pay compensation in the
form of weekly payments to the worker,
subject to and in accordance with this Act or
the Accident Compensation Act 1985.
5 (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.
(8) If subsection (6) applies--
(a) a deemed decision under that subsection is
10 binding on the employer;
(b) the employer is liable for all weekly
payments made to the worker by the
Authority after--
(i) the day on which the claim was given
15 to or served on the employer; or
(ii) if the claim was not accompanied by a
medical certificate in accordance with
section 25, the day on which the
certificate is given to the employer--
20 whichever is the later, until the day on which
the claim and the medical certificate have
been received by the Authority from the
employer.
76 Notice to include statement of right of review
25 If the Authority or a self-insurer gives a notice
under this Act to a worker or claimant, the notice
must include a statement of any right of the
worker or claimant to apply for conciliation or
review of any decision to which the notice relates.
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Division 4--Claims Management--Employer objection
77 Flow chart 3--employer objection process
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78 Employer may request reasons for decision on a
claim
(1) If the Authority has given notice to a worker or
claimant of its decision to accept, or to reject a
5 claim for compensation--
(a) in the form of weekly payments; or
(b) under Division 5 of Part 5 of this Act or
section 98C or 98E of the Accident
Compensation Act 1985; or
10 (c) in respect of the death of a worker--
the employer may, in writing, request the
Authority to provide a written statement of the
reasons for its decision.
(2) The Authority must, within 28 days after
15 receiving a request under subsection (1), comply
with the request.
(3) No proceedings may be brought against the
Authority in respect of any question or other
matter arising under this section.
20 79 Objection by employer in respect of liability
(1) If the Authority, by written notice, accepts a claim
for compensation in respect of an injury or death
under this Act or the Accident Compensation
Act 1985, the employer may lodge an objection
25 with the Authority in respect of the decision to
accept the claim if the employer considers that--
(a) the alleged worker is not a worker within the
meaning of this Act or the Accident
Compensation Act 1985; or
30 (b) the employer was not the correct employer of
the worker at the time of the injury or death.
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(2) An objection lodged by an employer under
subsection (1) must--
(a) be in writing in a form approved by the
Authority; and
5 (b) state the grounds on which the objection is
made and review by the Authority is sought;
and
(c) attach any document relevant to the
objection and review; and
10 (d) unless section 80 applies, be lodged 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
employer is making the objection.
15 (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 under
this Division in respect of a claim does not affect
20 existing liabilities the employer may have under
this Act or the Accident Compensation Act
1985.
80 Objection lodged out of time
(1) The Authority may permit an employer to lodge
25 an objection with the Authority after the period
specified in section 79(2)(d).
(2) The employer seeking to lodge an objection out of
time must state, in writing, the circumstances
concerning, and the reasons for, the failure to
30 lodge the objection within the 60 day period.
(3) The Authority may grant permission to lodge an
objection out of time unconditionally or subject to
conditions.
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(4) Proceedings to seek review of a decision 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
5 to conditions, must not be brought, whether
against the Authority or otherwise.
81 Authority may refuse to review a decision to which a
claimed employer has objected
(1) The Authority may decline to conduct a review
10 if--
(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--
15 (i) has been provided with the Authority's
written reasons for the decision
following that review; and
(ii) has not provided the Authority with any
new relevant information in, or with,
20 the lodged objection; or
(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
25 decision under subsection (1), the Authority must
notify the claimed employer of the Authority's
decision, in writing, within 28 days of receiving
the lodged objection.
82 Withdrawal of lodged objection
30 A claimed employer may, in writing, withdraw a
lodged objection at any time before the Authority
has made a decision under section 84.
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83 Request for information and suspension of review
(1) The Authority may, by written notice given to a
claimed employer, request the claimed employer
to provide information relevant to the review of
5 the lodged objection within the period specified in
the notice, not being less than 28 days after the
notice is given.
(2) If a claimed employer fails to comply with a
notice given under subsection (1), the Authority
10 may suspend consideration of the lodged
objection and review.
(3) If the Authority suspends consideration of a
lodged objection and review under subsection (2),
the Authority must give the claimed employer
15 written notice of the suspension which states the
following--
(a) that the suspension takes effect on service of
the notice;
(b) that the review has been suspended pending
20 the provision of the information relevant to
the review that the Authority has requested;
(c) the details of the requested information;
(d) that the review will remain suspended until
the earlier of--
25 (i) the period of suspension specified in
the notice is complete; or
(ii) the claimed employer provides the
Authority with the requested
information.
30 (4) If the claimed employer does not provide the
Authority with the information requested by the
Authority by the completion of the stated period
of suspension in the notice of suspension, the
claimed employer is deemed to have withdrawn
35 the lodged objection.
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(5) If a claimed employer is deemed to have had a
lodged objection withdrawn under subsection (4),
the claimed employer may again lodge an
objection in respect of the same decision that was
5 the subject of the deemed withdrawn lodged
objection.
(6) An objection lodged under subsection (5) will not
be accepted by the Authority unless the
objection--
10 (a) is made within 28 days of the date the lodged
objection was deemed to be withdrawn under
subsection (4); and
(b) is accompanied by the information specified
in the notice of suspension.
15 (7) If--
(a) the objection of a claimed employer is
deemed to be withdrawn under
subsection (4); and
(b) the claimed employer fails to lodge the
20 objection again in accordance with
subsection (6)--
the decision of the Authority to accept the claim
for compensation against the claimed employer is
deemed to be confirmed.
25 (8) Proceedings to seek review of a deemed
confirmation under subsection (7) must not be
brought, whether against the Authority or
otherwise.
84 Decision following review
30 (1) The Authority must, after reviewing an objection
lodged under section 79--
(a) confirm the decision of the Authority to
accept the claim for compensation against
the claimed employer; or
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(b) set aside the decision of the Authority to
accept the claim for compensation against
the claimed employer and, subject to
subsection (4), cease any payments of
5 compensation being made arising from the
Authority's original decision to accept the
claim.
(2) A decision made under subsection (1) must--
(a) be in writing and set out the Authority's
10 reasons for the decision; and
(b) be provided to the claimed employer--
(i) within 90 days of the Authority
receiving the lodged objection; or
(ii) more than 90 days after the Authority
15 receives the objection if the Authority
gives the claimed employer written
notice within the period specified in
subparagraph (i) specifying--
(A) that the Authority is extending the
20 period to provide the Authority's
decision to a day specified in the
notice; and
(B) the reasons for the extension.
(3) If the Authority fails to provide the claimed
25 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 employer.
30 (4) If the worker has been receiving payments of
compensation under a claim before the Authority
sets aside the decision to accept the claim under
subsection (1)(b), the Authority must give the
worker 28 days written notice before ceasing to
35 make payments.
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(5) If the Authority sets aside the decision to accept
the claim under subsection (1)(b) and the worker
subsequently makes a claim against an employer
that is not the claimed employer in respect of the
5 injury that was the subject of the set aside claim--
(a) the first entitlement period and the second
entitlement period within the meaning of
section 152; and
(b) the enhancement period within the meaning
10 of section 157--
must be calculated from the date of the first claim
the worker made in respect of the injury the
subject of the claim which was set aside.
85 Appeals
15 (1) Despite anything to the contrary in section 264(1),
if a claimed employer--
(a) has received notice that the Authority has
declined to consider the objection and
conduct a review under section 81; or
20 (b) is not satisfied with the decision made by the
Authority under section 84 (including a
deemed decision under that section)--
the claimed employer may appeal against that
decision to the Supreme Court.
25 (2) An appeal under subsection (1), other than 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 decision
30 under section 84(3) must be made within 60 days
of the decision being deemed.
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86 Grounds of appeal
On an appeal--
(a) the claimed employer's case is limited to the
grounds of the objection under section 79;
5 and
(b) the Authority's case is limited to the grounds
on which the Authority made a decision
under section 84--
unless the Supreme Court otherwise orders.
10 87 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; and
(b) by order confirm, reduce or vary the decision
15 of the Authority under section 84.
(2) If the Supreme Court determines--
(a) the alleged worker is not a worker within the
meaning of this Act or the Accident
Compensation Act 1985; 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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88 Costs of worker
If the worker is joined as a party to proceedings
commenced by the claimed employer under
section 85, unless the Supreme Court otherwise
5 determines, the Authority is liable for any
reasonable legal costs incurred by the worker
consequent on the worker being joined to those
proceedings.
89 Position of worker following decision under
10 section 84
(1) If the Authority sets aside its decision under
section 84(1)(b) to accept a claim made by a
worker for compensation against the claimed
employer--
15 (a) for the purposes of the worker accessing
dispute resolution procedures under Part 6,
the Authority's decision under section
84(1)(b) is taken to be a rejection of the
worker's claim; and
20 (b) subject to the workers' rights to dispute
resolution procedures under Part 6, the
worker is not entitled to lodge another claim
in respect of the same injury the subject of
the set aside claim under section 84(1)(b)
25 against the first claimed employer.
(2) Despite the Authority's decision under section
84(1)(b) to set aside its original decision to accept
a claim made by a worker for compensation
against the claimed employer, the claimed
30 employer is not entitled to recover any
compensation payments made to the worker
before the decision under section 84(1)(b) was
made.
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90 Recovery of payments
(1) The Authority or a self-insurer may recover from
a worker, an employer or any other person any
payment of compensation or other amount to
5 which the worker, employer or other person is not
entitled.
(2) If the Authority recovers from a worker any
amount paid as compensation to the worker by the
worker's employer to which the worker is not
10 entitled, the Authority may reimburse that amount
to the employer.
(3) The Authority may recover from an employer the
amount of any penalty or cost incurred by the
Authority as a result of the employer failing to pay
15 compensation as required by this Act or the
Accident Compensation Act 1985.
(4) If--
(a) an amount of compensation under this Act or
the Accident Compensation Act 1985 has
20 been paid to a person in consequence of a
false or misleading statement or
representation or in consequence of a failure
or omission to comply with a provision of
this Act or the Accident Compensation Act
25 1985; or
(b) a person is liable to pay an amount to the
Authority or a self-insurer under this Act or
the Accident Compensation Act 1985--
the amount concerned is recoverable by the
30 Authority or a self-insurer from a person in a court
of competent jurisdiction as a debt due to the
Authority or self-insurer.
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(5) If--
(a) an amount is recoverable from a person
under subsection (4); and
(b) an amount is payable under this Act or the
5 Accident Compensation Act 1985 to or for
the benefit of that person--
the recoverable amount may be deducted from the
amount so payable, despite anything to the
contrary in section 176(1) of this Act or section
10 97(4) of the Accident Compensation Act 1985.
Division 5--Liability for payment of compensation
91 Application of Division
This Division does not apply to an employer who
is a self-insurer or an eligible subsidiary of a self-
15 insurer except in relation to the employment of a
student worker.
92 Liability to pay compensation in respect of an injury
arising out of or in the course of any employment on
or after 1 July 2014
20 If a worker or a worker's dependants are entitled
to compensation in respect of an injury arising out
of or in the course of any employment on or after
1 July 2014, the liability to pay compensation is to
be assumed in all cases by the worker's employer.
25 93 Provisions to apply where employer does not meet
liabilities
(1) If the employer of the worker neglects, refuses or
is unable to pay compensation in discharge of the
employer's liability under section 72(1) within
30 21 days of receiving the claim for payment of
compensation, the liability becomes a liability of
the Authority.
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(2) If the liability has become a liability of the
Authority under subsection (1), the Authority may
impose on the employer a penalty calculated in
accordance with the method determined under
5 subsection (3).
(3) The Governor in Council, by Order published in
the Government Gazette, may determine the
method for calculating the penalty payable by an
employer if the liability has become a liability of
10 the Authority under subsection (1).
(4) The Authority may recover a penalty imposed
under subsection (2) in a court of competent
jurisdiction as a debt due to the Authority.
94 Provisions relating to payment of compensation
15 (1) If, in any proceedings under this Act for the
payment of weekly payments or of compensation
under Division 5, 7 or 8 of Part 5, a court is of the
opinion that the employer, the Authority or a self-
insurer is responsible for any unreasonable
20 delay--
(a) the court may direct the amount of
compensation determined and payable under
this Act to be increased by an amount
specified by the court; and
25 (b) the Authority or self-insurer must pay the
person entitled to compensation the amount
of the increase.
(2) If the court made a direction increasing the
amount of compensation payable under subsection
30 (1)(a) as a result of forming the opinion that the
employer was responsible for any unreasonable
delay, the Authority may require the employer to
pay an amount equivalent to the increase paid by
the Authority as if it were premium payable under
35 Part 10.
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(3) The amount of the increase must not exceed--
(a) in the case of weekly payments, one-tenth of
the total amount of the weekly payments
accrued due at the date of the assessment of
5 compensation; or
(b) in the case of compensation under Division 5
of Part 5, one-tenth of the lump sum
calculated under that Division; or
(c) in the case of compensation under
10 section 236 or 237, one-tenth of the total
amount of the compensation; or
(d) in the case of weekly pensions under
section 241, one-tenth of the total amount of
the weekly pensions accrued due at the date
15 of the assessment of compensation.
95 Interim payment--weekly payments
(1) If, in respect of a claim, the Magistrates' Court or
the County Court determines that--
(a) compensation in the form of weekly
20 payments is, or may be, payable under this
Act; and
(b) it is unable to ascertain the relevant rate of
weekly payments--
the Court may make an interim determination for
25 payment of the whole or any part of the
compensation.
(2) The making of a determination under
subsection (1)--
(a) does not preclude the Court from making, in
30 respect of the same claim, a further interim
determination or a final determination; and
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(b) does not prejudice the rights of the parties in
respect of any such further interim or final
determination.
__________________
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PART 4--RETURN TO WORK
Division 1--Preliminary
96 Definitions
(1) In this Part--
5 compliance code means a code approved by the
Minister under section 121;
employment obligation period means, subject to
section 103(2) and (3), an aggregate period
of 52 weeks, whether or not consecutive, in
10 respect of which a worker has an incapacity
for work resulting from, or materially
contributed to, by the injury to which the
medical certificate or claim relates,
beginning on the date on which the
15 employer--
(a) receives from the worker a medical
certificate issued in accordance with
section 25(1); or
(b) receives a claim for compensation from
20 the worker in the form of weekly
payments; or
(c) is notified by the Authority that the
worker has made a claim for
compensation in the form of weekly
25 payments; or
(d) is notified by the Authority that the
worker has provided the Authority with
a medical certificate issued in
accordance with section 25(1)--
30 whichever is earliest;
host has the meaning given by section 109(1)(a);
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inspector means an officer or employee of the
Authority who is appointed as an inspector
under section 126 for the purposes of this
Part;
5 labour hire employer has the meaning given by
section 109(1)(a);
preceding premium period means the premium
period preceding the premium period in
respect of which a premiums order made
10 under Division 4 of Part 10 is currently in
force;
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
15 worker was employed before receiving the
injury;
representative, in relation to a worker, does not
include a legal practitioner;
Return to Work improvement notice means a
20 Return to Work improvement notice issued
under Division 7;
treating health practitioner means--
(a) a medical practitioner who has issued a
medical certificate referred to in
25 section 25; or
(b) a medical practitioner, registered
physiotherapist, registered chiropractor
or registered osteopath who has issued
a certificate of capacity referred to in
30 section 167(2);
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workplace means a place, whether or not in a
building or structure--
(a) where a worker works; or
(b) from where an employer conducts
5 business; or
(c) where records relating to the business
of an employer are kept.
(2) In section 28 and this Part, a reference to a worker
who has an incapacity for work, is a reference to a
10 worker--
(a) who has no current work capacity; or
(b) who has a current work capacity.
97 Purpose
The purpose of this Part is to provide the
15 following--
(a) that employers, workers and other persons
involved in the return to work process
co-operate to ensure that workers
successfully return to work;
20 (b) that employers are responsible for providing
pre-injury employment or suitable
employment to enable workers to return to
work;
(c) that workers are responsible for participating
25 in the return to work process consistently
with their capacity for work;
(d) for workers to be represented, assisted and
supported in the return to work process;
(e) for effective occupational rehabilitation for
30 workers to facilitate their early and
sustainable return to work.
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98 Application of Part
This Part applies to, and in respect of, the return to
work of a worker.
99 Obligations of employers and workers
5 (1) The obligations of employers are specified in
Division 2.
(2) The obligations of workers are specified in
section 28 and Division 3.
100 Section 28 and this Part do not derogate from other
10 provisions
Nothing in section 28 or this Part limits or
otherwise affects the operation of other provisions
of this Act or the Accident Compensation Act
1985 unless this Part specifically provides
15 otherwise.
101 Part not to apply in certain circumstances
(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
20 school within the meaning of Part 5.4 of the
Education and Training Reform Act 2006;
and
(b) is employed under a work experience
arrangement under that Part.
25 (2) The following classes of employers, to the extent
indicated, are not required to comply with any
obligation under this Part other than the obligation
specified in section 103--
(a) employers (including owners corporations
30 within the meaning of the Owners
Corporations Act 2006) who employ
domestic or similar workers otherwise than
for the purposes of the employer's trade or
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business (but only to the extent that such
workers are concerned);
(b) employers who hold owner-builders' permits
under the Building Act 1993 (but only to the
5 extent that the workers employed for the
purposes of the work to which the permits
relate are concerned);
(c) employers (being corporations) who only
employ workers who are directors of the
10 corporation;
(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 Victoria.
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Division 2--Obligations of employers
102 Flow chart 4--return to work obligation of
employers
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103 Provide employment
(1) An employer must, to the extent that it is
reasonable to do so, provide to a worker until the
expiration of the employment obligation period--
5 (a) suitable employment, while the worker has a
current work capacity; and
(b) pre-injury employment, while the worker no
longer has an incapacity for work.
Penalty: In the case of a natural person,
10 180 penalty units;
In the case of a body corporate,
900 penalty units.
(2) For the purposes of this section, the employment
obligation period includes any period specified in
15 subsection (3)(a), (b), (c) or (d) if the employer
provides suitable employment to the worker
during that period.
(3) For the purposes of this section, except as
provided in subsection (2), the employment
20 obligation period does not include--
(a) the period commencing on the date of a
decision made by the Authority or self-
insurer to reject the worker's claim for
weekly payments and ending on the date on
25 which--
(i) a Conciliation Officer gives a direction
that weekly payments are to be paid in
relation to the claim; or
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(ii) a Conciliation Officer makes a
recommendation that weekly payments
are to be paid in relation to the claim
and the recommendation is accepted by
5 the employer or the Authority or self-
insurer; or
(iii) the claim is determined by a court in
favour of the worker; or
(b) the period commencing on the date the
10 Authority sets aside a decision to accept a
claim for compensation against an employer
under section 84(1)(b) and ending on a date
specified in paragraph (a)(i), (ii) or (iii) of
this subsection; or
15 (c) the period commencing on the date a
direction given by a Conciliation Officer that
weekly payments are to be made is revoked
and ending on the date that the payment of
weekly payments is resumed; or
20 (d) any period during which a Return to Work
improvement notice issued to the employer
is stayed by the Authority under section 150
or by VCAT on an application made under
section 151.
25 104 Plan return to work
(1) An employer must, to the extent that it is
reasonable to do so, plan the return to work of a
worker from the date on which the employer
knows or ought reasonably to have known of the
30 worker's incapacity for work, whichever is the
earlier date.
Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
35 600 penalty units.
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(2) An employer must, when planning the return to
work of a worker, undertake the tasks specified in
subsection (3) as often as is necessary to enable
the worker to return to work in employment which
5 is consistent with the worker's capacity for work.
(3) Planning the return to work of a worker
includes--
(a) obtaining relevant information about the
worker's capacity for work; and
10 (b) considering reasonable workplace support,
aids or modifications to assist in the worker's
return to work; and
(c) assessing and proposing options for suitable
employment or pre-injury employment; and
15 (d) engaging in consultation in accordance with
section 105; and
(e) providing the worker with clear, accurate and
current details of the worker's return to work
arrangements; and
20 (f) monitoring the worker's progress.
(4) For the purposes of this section, an employer
knows or ought reasonably to have known of the
worker's incapacity for work from the date of the
commencement of the employment obligation
25 period.
105 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 to
work of a worker with--
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(a) the worker; and
(b) subject to the consent of the worker, the
worker's treating health practitioner; and
(c) a provider of occupational rehabilitation
5 services that provides those services to the
worker in accordance with Divisions 6 and 7
of Part 5 of this Act or Divisions 2B or 2C of
Part IV of the Accident Compensation Act
1985.
10 Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.
(2) The employer must consult with the persons
15 specified in subsection (1) by--
(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
20 about the worker's return to work; and
(c) taking those views into account.
(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
25 consulting directly with the worker.
(4) A worker may be assisted by a representative
during a consultation under subsection (3).
106 Return to work co-ordinator to be appointed
(1) An employer who has certified, or in respect of
30 whom there has been assessed, total rateable
remuneration of $2 169 670 or more for all
workplaces of the employer in respect of the
preceding premium period must ensure that, at all
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times, an appropriate person is appointed to act as
the return to work co-ordinator for the employer.
Penalty: In the case of a natural person,
120 penalty units;
5 In the case of a body corporate,
600 penalty units.
(2) An employer who has certified, or in respect of
whom there has been assessed, total rateable
remuneration of less than $2 169 670 for all
10 workplaces of the employer in respect of the
preceding premium period must ensure that, for
the duration of the employer's obligations under
this Part to a worker who has an incapacity for
work, an appropriate person is appointed to act as
15 the return to work co-ordinator for the employer.
Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.
20 (3) A return to work co-ordinator is not personally
liable for an act or omission done or omitted to be
done in good faith in the course of acting as a
return to work co-ordinator.
(4) Any liability resulting from an act or omission
25 that, but for subsection (3), would attach to a
return to work co-ordinator, instead attaches to the
employer.
(5) An amount specified in subsection (1) or (2) must
be varied, in respect of the financial year
30 beginning on 1 July 2014 and each subsequent
financial year, in accordance with the formula--
B
A×
C
where--
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A is the amount specified in subsection (1)
or (2) or, if that amount has been varied in
accordance with this section, that amount as
last so varied.
5 B is the all groups consumer price index for
Melbourne in original terms published by the
Australian Bureau of Statistics as at 15 June
in the preceding financial year in respect of
the most recent reference period ending on or
10 before 31 December in that financial year.
C is the all groups consumer price index for
Melbourne in original terms for the
corresponding reference period one year
earlier than the reference period referred to
15 in B published by the Australian Bureau of
Statistics as at 15 June referred to in B.
(6) In this section, appropriate person means a
person who has an appropriate level of seniority;
and is competent to assist an employer to meet the
20 obligations of the employer under this Part.
(7) A person is competent to assist an employer 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
25 including--
(a) knowledge of the obligations of employers
and workers under this Part; and
(b) knowledge of the compensation scheme
provided for under this Act and the Accident
30 Compensation Act 1985 and the functions
of the Authority and, if relevant, self-insurers
under this Part.
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107 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 this
5 Part and how the employer is meeting the
obligations; and
(b) the rights and obligations of workers under
section 28 and this Part and how workers can
obtain further information about the rights
10 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 return to
15 work co-ordinator, if applicable; and
(e) the procedure for resolving return to work
issues as specified in section 118.
Penalty: In the case of a natural person,
120 penalty units;
20 In the case of a body corporate,
600 penalty units.
(2) An employer must consult with the employer's
workers as to how the information is to be made
available under this section.
25 Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.
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108 Employer to notify Authority of return to work of
worker
(1) When--
(a) a worker who has been receiving weekly
5 payments for no current work capacity
returns to work with the employer in whose
employment the injury occurred or an
employer who knows that the worker has
been receiving payments; or
10 (b) there is a change in the weekly earnings of a
worker who has been receiving weekly
payments for current work capacity--
the employer must notify the Authority.
Penalty: In the case of a natural person,
15 60 penalty units;
In the case of a body corporate,
300 penalty units.
(2) Subsection (1) does not apply to a self-insurer or
an eligible subsidiary of a self-insurer except in
20 relation to the employment of a student worker.
109 Host to co-operate with labour hire employer
(1) This section applies if--
(a) the services of a worker are let on hire to
another person (host) by the employer
25 (labour hire employer) with 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
30 contributed to by an injury arising out of or
in the course of employment with the labour
hire employer whilst the worker is let on hire
to the host.
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(2) A host must, to the extent that it is 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 103,
5 104 and 105 to facilitate the worker's return to
work.
Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
10 600 penalty units.
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Division 3--Obligations of workers
110 Flow chart 5--return to work obligation of workers
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111 Participate in planning for return to work
A worker who has an incapacity for work must, in
co-operation with the employer, Authority or self-
insurer make reasonable efforts to actively
5 participate and co-operate in planning for the
worker to return to work.
112 Use occupational rehabilitation services
A worker who has an incapacity for work must, to
the extent it is reasonable to do so, actively use an
10 occupational rehabilitation service provided in
accordance with Divisions 6 and 7 of Part 5 of this
Act or Divisions 2B and 2C of Part IV of the
Accident Compensation Act 1985 and
co-operate with the provider of that service.
15 113 Participate in assessments
A worker who has an incapacity for work must,
when requested to do so by the employer,
Authority or self-insurer, and to the extent it is
reasonable to do so, actively participate and
20 co-operate in any assessment of the worker's--
(a) capacity for work; and
(b) rehabilitation progress; and
(c) future employment prospects.
114 Return to work
25 (1) A worker who has an incapacity for work must, in
co-operation with the employer, Authority or self-
insurer make reasonable efforts in accordance
with this Division to return to work in suitable
employment or pre-injury employment at the
30 worker's place of employment or at another 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 period in which--
5 (a) the worker is waiting for the commencement
of an occupational rehabilitation service after
approval has been given; or
(b) the worker is waiting for a response to a
request for suitable employment or pre-
10 injury employment made by the worker and
received by the employer; or
(c) if the employer's response is that suitable
employment or pre-injury employment may,
or will, be provided at some time, the worker
15 is waiting for suitable employment or pre-
injury employment to commence; or
(d) if the employer's response is that suitable
employment or pre-injury employment
cannot be provided at some time, the worker
20 is waiting for a response to a request for
suitable employment or pre-injury
employment from another employer.
(3) For the purposes of subsection (1), a worker is not
to be treated as making reasonable efforts to
25 return to work in suitable employment or pre-
injury employment during any period in which the
worker has refused or failed to meet any
obligation under this Division.
115 Participate in an interview
30 (1) A worker who has an incapacity for work must, as
required by the Authority or self-insurer and to the
extent it is reasonable to do so--
(a) participate in an interview with a nominee of
the Authority or self-insurer for the purpose
35 of enhancing the worker's opportunities to
return to work; and
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(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.
5 (2) In arranging an interview under this section, 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
10 interview and may be accompanied by a
representative.
Division 4--Termination of compensation
116 Failure to comply with Division 3
(1) This section applies if a worker does not comply
15 with an obligation of the worker 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 in the
20 form of weekly payments to the worker; or
(b) terminate the payment of compensation in
the form of weekly payments to the worker;
or
(c) cease and determine the entitlement of the
25 worker to compensation in the form of
weekly payments.
(3) If the Authority or self-insurer seeks to suspend
payments of compensation under subsection
(2)(a), the Authority or self-insurer must give
30 written notice to the worker stating--
(a) the reason for the giving of the notice; and
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(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 the
5 notice which must be a date at least 14 days,
but no more than 60 days, after notice is
given; and
(c) the consequences of failing to comply as
specified in the notice.
10 (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 of 28 days after the date
specified in the notice referred to in
15 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 suspended
under subsection (4), the Authority or self-insurer
20 must, subject to and in accordance with this Act or
the Accident Compensation Act 1985, resume
the payment of weekly payments with effect from
the date on which the worker complied with the
obligation.
25 (6) If subsection (5) applies--
(a) 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
30 the obligation; and
(b) that period is included in determining the
first entitlement period or the second
entitlement period under this Act or the
Accident Compensation Act 1985.
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(7) If the worker does not comply with the obligation
specified in the notice under subsection (3) for the
entire period that weekly payments are suspended
under subsection (4)--
5 (a) the worker forfeits any compensation in the
form of weekly payments that would
otherwise have been made during the period
of suspension; and
(b) that period is included in determining the
10 first entitlement period or the second
entitlement period under this Act or the
Accident Compensation Act 1985; and
(c) the Authority or self-insurer may terminate
the payment of compensation in the form of
15 weekly payments to the worker by written
notice stating the reasons for giving the
notice.
(8) If the worker--
(a) does not comply with the obligation
20 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 the
giving of the notice referred to in
25 paragraph (a)--
(i) been given 2 notices under subsection
(3) without a subsequent suspension of
weekly payments; or
(ii) had compensation in the form of
30 weekly payments suspended once under
subsection (4)--
the Authority or self-insurer may cease and
determine the entitlement to compensation in the
form of weekly payments by written notice given
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to the worker stating the reasons for giving the
notice.
(9) Division 3 of Part 5 of this Act and section 114 of
the Accident Compensation Act 1985 do not
5 apply to a notice given under this section.
(10) This section does not derogate from any other
provision of this Act or the Accident
Compensation Act 1985.
117 Notification of return to work
10 (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.
15 (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 employer in whose
20 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
25 118 Resolution of return to work issues
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--
(a) the relevant agreed procedure; or
30 (b) if there is no relevant agreed procedure, in
accordance with the relevant procedure
specified in directions given by the Minister
in accordance with section 609 for the
purposes of this section.
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119 Information about the employment obligation
period
(1) As soon as practicable after accepting a claim for
compensation from a worker who has an
5 incapacity for work, the Authority or self-insurer
must inform the worker--
(a) of the obligation of the employer to provide
suitable employment or pre-injury
employment until the expiration of the
10 employment obligation period; and
(b) as to how the employment obligation period
is to be calculated.
(2) Subject to, and in accordance with, any directions
given under subsection (3), if the Authority or
15 self-insurer estimates that at least 30 weeks of the
employment obligation period have expired, the
Authority or self-insurer must advise the worker
in writing, no later than the date on which the
Authority or self-insurer estimates that 36 weeks
20 of the employment obligation period expire--
(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
25 (b) that the worker may request the Authority or
self-insurer to provide more information in
respect of return to work.
(3) The Minister may give directions in accordance
with section 609 in respect of--
30 (a) the information to be provided under this
section; and
(b) the type of circumstances that do not require
written advice to be given under
subsection (2).
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(4) This section does not affect the obligations of the
Authority or an employer under this Part.
120 Authority may give direction
(1) The Authority may direct an employer to use the
5 services of an approved provider of 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
10 subsection (1) must comply with the direction.
Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.
15 (3) A direction given under subsection (1) does not
derogate from any matter referred to in Division 7
of Part 5 of this Act or Division 2B of Part IV of
the Accident Compensation Act 1985.
121 Compliance code
20 (1) For the purpose of providing practical guidance to
persons who have obligations under this Part, the
Minister may make an order approving a
compliance code.
(2) A compliance code may apply, adopt or
25 incorporate any matter contained in a document
formulated, issued or published by a person or
body whether--
(a) with or without modification; or
(b) as in force at a particular time or from time
30 to time.
(3) The Minister may make an order approving the
variation of a compliance code or revoking the
approval of a compliance code.
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(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 is specified in the
5 order.
(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
10 the Government Gazette and on a Government
Internet website.
(6) The Minister must ensure that a copy of--
(a) each compliance code that is currently
approved; and
15 (b) each document applied, adopted or
incorporated (to any extent) by a compliance
code--
is available for inspection by members of the
public without charge at the office of the
20 Authority during normal business hours.
122 Disallowance of certain compliance code orders
(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
25 Parliament.
(2) A copy of every order made under section 121
must be laid before both Houses of Parliament on
or before the 6th sitting day after the notice of the
order is published in accordance with section 121.
30 (3) Subject to subsection (4), Parts 3A and 5A of the
Subordinate Legislation Act 1994 apply to an
order made under section 121 as if the order were
a legislative instrument within the meaning of that
Act laid before each House of the Parliament
35 under section 16B of that Act.
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(4) The Subordinate Legislation Act 1994 does not
apply to the first order made under section 121
containing compliance code provisions in respect
of each of the following--
5 (a) providing employment, planning and
consulting about return to work;
(b) return to work co-ordinators;
(c) return to work information;
(d) co-operating with labour hire employers
10 about return to work.
123 Effect of compliance codes
A failure to comply with a compliance code does
not of itself give rise to any civil or criminal
liability.
15 124 Effect of compliance with compliance codes
If a compliance code makes provision for or with
respect to an obligation imposed by this Part and a
person complies with the compliance code to the
extent that it makes that provision, the person is,
20 for the purposes of this Act taken to have
complied with this Act in relation to that
obligation.
125 Functions of Authority in respect of compliance
codes
25 (1) The Authority may make recommendations to the
Minister with respect to compliance codes that the
Minister or the Authority propose should be made
under this Act.
(2) Subject to subsection (4), before the Authority
30 makes a recommendation to the Minister under
subsection (1) concerning a proposed compliance
code, it must issue the proposed compliance code
for public review and comment.
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(3) However, the Authority need not comply with
subsection (2) if the Authority is notified by the
Minister that the Minister considers that it is in the
public interest that the proposed compliance code
5 be made as soon as practicable.
(4) Subsection (2) does not apply to a proposed
compliance code to which section 122(4) applies.
Division 6--Return to Work Inspectorate
126 Appointment of inspectors
10 (1) The Authority may, by instrument in writing,
appoint an officer or employee of the 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
15 executive of the Authority.
(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.
20 127 Identity cards
(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
25 for inspection if asked to do so when performing a
function or exercising a power under this Part.
(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 Authority as soon as
30 possible.
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Division 7--Functions and powers of inspectors
128 Interpretation
In this Division and Division 9, a reference to an
employer includes a reference to a host unless the
5 contrary intention appears.
129 Inspectors subject to Authority's directions
(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
10 this Division.
(2) A direction under subsection (1) may be of a
general nature or may relate to a specified matter
or specified class of matter.
130 Power to enter
15 (1) Subject to subsection (2), an inspector may,
without force, enter a place that the inspector
reasonably believes is a workplace at any time
during the work hours of the workplace.
(2) The powers of an inspector under this Division in
20 relation to entering a place that is a workplace are
not exercisable in respect of any part of that
workplace that is used only for residential
purposes except with the consent of the occupier
for the time being of that part.
25 131 Announcement on entry
Immediately on entering a workplace under this
Division, 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
30 inspection by that person.
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132 Report to be given about entry
(1) An inspector who enters a workplace under this
Division must give a report concerning the entry
when, or as soon as practicable after, the inspector
5 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 of a worker,
the inspector may give a copy of the report
10 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.
(3) The report must be in writing and include the
15 following--
(a) the time of the entry and departure;
(b) the purpose of the entry;
(c) a description of things done while at the
workplace;
20 (d) a summary of the inspector's observations
while at the workplace;
(e) the procedure for contacting the Authority
and the inspector for further details of the
entry;
25 (f) the procedure for seeking review of any
decision made by the inspector during the
entry.
(4) If the inspector takes photographs or makes
sketches or recordings under section 133(e), the
30 report must also include a statement that--
(a) the photographs have been taken or sketches
or recordings have been made; and
(b) they are or will be available for inspection at
a specified place.
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133 General powers on entry
An inspector who enters a workplace under this
Division may do any of the following--
(a) inspect, examine and make enquiries at the
5 workplace;
(b) inspect and examine any thing (including a
document) at the workplace;
(c) bring any equipment or materials to the
workplace that may be required;
10 (d) seize any thing (including a document) at the
workplace that may afford evidence of the
commission of an offence against this Act or
the Accident Compensation Act 1985;
(e) take photographs or measurements or make
15 sketches or recordings;
(f) exercise any other power conferred on the
inspector by this Division;
(g) do any other thing that is reasonably
necessary for the purpose of the inspector
20 performing his or her functions or exercising
his or her powers under this Division.
Note
This section does not affect legal professional privilege or client
legal privilege (see section 598) or, in the case of a requirement
25 to answer questions, the privilege against self-incrimination
(see section 597).
134 Powers in relation to obtaining information
(1) An inspector who enters a workplace under this
Division may--
30 (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
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(c) require a person to answer any questions put
by the inspector.
(2) A person must not, without reasonable excuse,
refuse or fail to comply with a requirement under
5 subsection (1).
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
10 (3) Before requiring a person to produce a document
or part of a document or to answer questions
under subsection (1), an inspector must--
(a) produce his or her identity card for
inspection by the person and warn the person
15 that a refusal or failure to 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
20 the question would tend to incriminate him
or her.
(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).
25 Note
This section does not affect legal professional privilege or client
legal privilege (see section 598) or, in the case of a requirement
to answer questions, the privilege against self-incrimination
(see section 597).
30 135 Return of seized things
As soon as possible after an inspector seizes any
thing (including a document) under this Division
the Authority must return the thing to the owner
unless--
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(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
5 or the Accident Compensation Act 1985; or
(b) the Authority is otherwise authorised (by a
law or court order) to retain, destroy or
dispose of the thing.
136 Power to issue Return to Work improvement notice
10 (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
circumstances that make it likely that the
15 contravention will continue or be repeated--
the inspector may issue to the employer a Return
to Work improvement notice requiring the
employer to remedy the contravention or likely
contravention.
20 (2) A Return to Work improvement notice must--
(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 likely to be
25 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
(d) set out the penalty for contravening the
30 notice; and
(e) state how the employer may seek review of
the issue of the notice; and
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(f) include a statement of the effect of
section 141 (proceedings for offence not
affected by Return to Work improvement
notice).
5 (3) A Return to Work improvement notice may
include directions concerning the measures to be
taken to remedy the contravention or likely
contravention to which the notice relates and may,
in particular, include--
10 (a) a direction that if the person has not
remedied the contravention, likely
contravention, matters or activities (as the
case may be) by the date and time (if any)
specified in the notice, an activity to which
15 the notice relates is to cease until an
inspector has certified in writing that the
contravention, likely contravention, matters
or activities have been remedied; and
(b) interim directions, or interim conditions on
20 the carrying on of any activities to 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
25 improvement notice is issued must comply with
the Return to Work improvement notice.
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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(5) If an application for review of a decision under
this section has been made under Division 9, an
inspector must not give a certificate under
subsection (3)(a) in relation to the Return to Work
5 improvement notice.
137 Directions or conditions in a Return to Work
improvement notice
A direction or condition included in a Return to
Work improvement notice may--
10 (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 the
contravention or likely contravention.
15 138 Variation or cancellation of Return to Work
improvement notice
A Return to Work improvement notice issued by
an inspector may be varied or cancelled by the
Authority.
20 139 Issue of Return to Work improvement notice
(1) A Return to Work improvement notice may be
issued to an employer by--
(a) delivering it personally to the employer or
sending it by post or facsimile to the usual or
25 last known place of business of the
employer; or
(b) leaving it for the employer at the usual or last
known place of business of the employer
with a person who apparently has authority
30 to receive correspondence or
communications with the employer.
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(2) An employer to whom a Return to Work
improvement notice is issued must as soon as
possible, if the Return to Work improvement
notice relates to the obligation of the employer
5 under section 106 or 107, display a copy of the
notice in a prominent place at or near the
workplace.
Penalty: In the case of a natural person,
5 penalty units;
10 In the case of a body corporate,
25 penalty units.
(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.
15 (4) If a Return to Work improvement notice is
issued--
(a) to a labour hire employer and the Return to
Work improvement notice relates to a
worker who received an injury arising out of
20 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
Return to Work improvement notice to the
host; or
25 (b) to a host and the Return to Work
improvement notice relates to the obligation
to co-operate with the labour hire employer,
in respect of action taken by the labour hire
employer in order to comply with
30 sections 103, 104 and 105, to facilitate the
worker's return to work, the inspector may
provide a copy of the Return to Work
improvement notice to the labour hire
employer.
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(5) If a Return to Work improvement notice relates to
an obligation of an employer in respect of the
return to work of a worker, the inspector may
provide a copy of the Return to Work
5 improvement notice to the authorised agent
selected by the employer for the purpose of
assisting in the management of the claim for
compensation by the worker.
140 Formal irregularity or defect in Return to Work
10 improvement notice
A Return to Work improvement notice is not
invalid merely because of--
(a) a formal defect or irregularity in the Return
to Work improvement notice unless the
15 defect or irregularity causes or is likely to
cause substantial injustice; or
(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
20 Work improvement notice sufficiently
identifies the employer and is issued to the
employer in accordance with section 139.
141 Proceedings for offence not affected by Return to
Work improvement notice
25 The issue, variation or cancellation of a Return to
Work improvement notice does not affect any
proceedings for an offence against this Act or the
Accident Compensation Act 1985 in connection
with any matter in respect of which the Return to
30 Work improvement notice was issued.
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142 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
5 performance of his or her functions or exercise of
his or her powers under this Division.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
10 300 penalty units.
143 Other assistance in exercising powers
(1) For the purpose of exercising a power under this
Division, an inspector may seek the assistance of
any person.
15 (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.
20 Penalty: In the case of a natural person,
60 penalty units for a natural person;
In the case of a body corporate,
300 penalty units for a body corporate.
(3) If an inspector uses the assistance of an
25 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
(b) any answer given to the interpreter is taken
30 to have been given to the inspector.
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144 Inspector may take affidavits and statutory
declarations
An inspector is authorised to take affidavits and
statutory declarations for any purpose relating or
5 incidental to the performance of his or her
functions or exercise of his or her powers under
this Division.
145 Inspector may copy documents
An inspector may make copies of, or take extracts
10 from, a document or part of a document given to
the inspector in accordance with a requirement
under this Part.
Division 8--Offences
146 Offences in relation to inspections
15 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
Division 7 or induce or attempt to induce any
20 other person to do so; or
(b) intentionally conceal from an inspector the
location or existence of any other person or
thing; or
(c) intentionally prevent or attempt to prevent
25 any other person from assisting an inspector.
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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147 Protection of inspectors
A person must not assault, directly or indirectly
intimidate or threaten, or attempt to intimidate or
threaten, an inspector or a person assisting an
5 inspector.
Penalty: In the case of a natural person,
240 penalty units or imprisonment for
2 years or both;
In the case of a body corporate,
10 1200 penalty units.
148 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.
15 Penalty: 60 penalty units.
Division 9--Review of decisions
149 Which decisions are reviewable
(1) The following Table sets out--
(a) decisions made under Division 7 that are
20 reviewable in accordance with this Division
(reviewable decisions); and
(b) who is eligible to apply for review of a
reviewable decision (the eligible person in
relation to the reviewable decision).
25 (2) To avoid doubt, sections 4 and 5 of the Victorian
Civil and Administrative Tribunal Act 1998
apply for the purposes of this Division.
Note
Under section 4 of the Victorian Civil and Administrative
30 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 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 136(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 136(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 138 (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.
150 Internal review
(1) An eligible person in relation to a reviewable
decision, other than a decision made by the
Authority under section 138, may apply to the
5 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
(b) such longer period as the Authority allows.
(2) The application must be in the form approved by
10 the Authority.
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(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
5 (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--
10 (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 the evidence
or other material on which those findings
15 were based--
and must do so within 21 days after the
application is made or, if the reviewable decision
was made under section 136(3)(a), within 7 days
after the application is made.
20 (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.
(6) An application under this section does not affect
25 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 applicant for review, stays
the operation of the decision pending the
30 determination of the review.
(7) The Authority must make a decision on an
application for a stay within 24 hours after the
making of the application.
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(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.
(9) The Authority may attach any conditions to a stay
5 of the operation of a reviewable decision that it
considers appropriate.
151 Review by VCAT
(1) A person may apply to VCAT for review of--
(a) a reviewable decision made by the Authority
10 under section 138; or
(b) a decision made, or taken to have been made,
by the Authority under section 150 in respect
of a reviewable decision (including a
decision concerning a stay of the operation
15 of the reviewable decision)--
if the person is an eligible person in relation to the
reviewable decision.
(2) The application must be made--
(a) within 14 days after the day on which the
20 decision first came to the applicant's notice;
or
(b) if the Authority is required by the Victorian
Civil and Administrative Tribunal Act
1998 to give the applicant a statement of
25 reasons, within 14 days after the day on
which the applicant is given the statement--
whichever period ends later.
__________________
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PART 5--BENEFITS
Division 1--Preliminary
152 Definitions
In this Part--
5 current weekly earnings of a worker in relation to
a week means--
(a) if the worker's base rate of pay is
calculated on the basis of ordinary
hours worked, the sum of--
10 (i) the worker's earnings so
calculated for the ordinary hours
worked during that week; and
(ii) amounts paid or payable for
overtime or shift allowances in
15 respect of that week; and
(iii) amounts paid or payable as piece
rates or commissions in respect of
that week; and
(iv) other amounts referred to in
20 section 155(1)(c); or
(b) if paragraph (a) does not apply, the
worker's actual earnings (other than an
amount of a kind referred to in section
155(1)(d) or 156(1)(a), (b), (c) or (f)) in
25 respect of that week;
deductible amount means the sum of the value, in
respect of a week, of each non-pecuniary
benefit referred to in section 155(1)(d) that is
provided by the employer to a worker in
30 respect of that week (whether or not received
by the worker during the relevant period),
being a non-pecuniary benefit that--
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(a) was provided by the employer to the
worker for the performance of work by
the worker before the worker sustained
the relevant injury and continues after
5 the injury to be provided by the
employer for the benefit of the worker
or a member of the family of the
worker; or
(b) was not provided by the employer
10 before the worker sustained the relevant
injury but is provided by the employer
after the injury for the benefit of the
worker or a member of the family of
the worker;
15 first entitlement period, in relation to a claim for
compensation in the form of weekly
payments made by a worker, means an
aggregate period not exceeding 13 weeks
(whether or not consecutive) in respect of
20 which a weekly payment has been paid or is
payable to the worker;
second entitlement period, in relation to a claim
for compensation in the form of weekly
payments made by a worker, means an
25 aggregate period of 117 weeks (whether or
not consecutive) after the expiry of the first
entitlement period in respect of which a
weekly payment has been paid or is payable
to the worker;
30 week, for the purposes of the following--
(a) the definition of first entitlement
period;
(b) the definition of second entitlement
period;
35 (c) the definition of enhancement period;
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(d) calculating a period of weeks referred
to in section 42, 43, 168, 189 (other
than subsection (3)(e) and (g)), 241
or 244--
5 means a week in respect of which any
amount of compensation in the form of
weekly payments or weekly payments of
pension or superannuation contributions is
paid or payable, whether for all or any part
10 of that week.
153 Definition--pre-injury average weekly earnings
(1) In this Act, pre-injury average weekly earnings,
in respect of a relevant period in relation to a
worker, means, subject to this section, the sum
15 of--
(a) the average of the worker's ordinary earnings
during the relevant period (excluding from
that period any week during which the
worker did not actually work and--
20 (i) was on unpaid leave; or
(ii) was on paid leave at a rate less than the
base rate of pay)--
expressed as a weekly sum; and
(b) the worker's earnings enhancement (if any)
25 in the relevant enhancement period.
(2) If a worker has been continuously employed by
the same employer for less than 4 weeks before
the injury, pre-injury average weekly earnings, in
relation to that worker, may be calculated having
30 regard to--
(a) the average of the worker's ordinary earnings
that the worker could reasonably have been
expected to have earned in that employment,
but for the injury, during the period of
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52 weeks after the injury expressed as a
weekly sum; and
(b) the worker's earnings enhancement (if any)
in the relevant enhancement period.
5 (3) If a worker--
(a) was not a full-time worker immediately
before the injury; and
(b) at the time of the injury was seeking full-
time employment; and
10 (c) had been predominantly a full-time worker
during the period of 78 weeks immediately
before the injury--
pre-injury average weekly earnings, in relation to
that worker, means the sum of--
15 (d) the average of the worker's ordinary earnings
while employed during the period of
78 weeks immediately before the injury
(excluding from that period any week during
which the worker did not actually work
20 and--
(i) was on unpaid leave; or
(ii) was on paid leave at a rate less than the
base rate of pay)--
whether or not the employer is the same
25 employer as at the time of the injury,
expressed as a weekly sum; and
(e) the worker's earnings enhancement (if any)
in the relevant enhancement period.
(4) If a worker is a person engaged by an employer to
30 participate as a contestant in a sporting or athletic
activity within the meaning of clause 17(1) of
Schedule 1 and the injury is not received while the
person is--
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(a) participating, or training for or preparing to
participate, as a contestant in a sporting or
athletic activity; or
(b) travelling between a place of residence and a
5 place where the activity, training or
preparation is held--
any remuneration paid or payable in respect of
such participation, training, preparation or travel
is not to be taken into account in calculating the
10 worker's pre-injury average weekly earnings.
(5) In relation to a worker of a class referred to in
column 2 of an item in Schedule 2, pre-injury
average weekly earnings means the amount
determined in accordance with column 3 of that
15 item, expressed as a weekly sum.
(6) In relation to a worker to whom clause 7 or 8 of
Schedule 1 applies, the worker's pre-injury
average weekly earnings must be calculated with
reference to the amounts payable to the worker
20 and deemed to be remuneration under that clause,
expressed as a weekly sum.
(7) In relation to a worker to whom clause 6 or 9 of
Schedule 1 applies, the worker's pre-injury
average weekly earnings must be calculated with
25 reference to the amounts payable to the contractor
and deemed to be remuneration under that clause,
expressed as a weekly sum.
154 Definition applying to pre-injury average weekly
earnings--relevant period
30 (1) Subject to this section, a reference to the relevant
period in relation to pre-injury average weekly
earnings of a worker is a reference to--
(a) in the case of a worker who has been
continuously employed by the same
35 employer for the period of 52 weeks
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immediately before the injury, that period of
52 weeks; or
(b) in the case of a worker who has been
continuously employed by the same
5 employer for less than 52 weeks immediately
before the injury, the period of continuous
employment by that employer.
(2) The relevant period, in relation to pre-injury
average weekly earnings of a worker who, during
10 the 52 weeks immediately before the injury,
voluntarily (otherwise than by reason of an
incapacity for work resulting from, or materially
contributed to by, an injury which entitles the
worker to compensation under this Act)--
15 (a) alters the ordinary hours of work; or
(b) alters the nature of the work performed by
the worker--
and, as a result, the worker's ordinary earnings are
reduced, does not include the period before the
20 reduction takes effect.
(3) If, during the period of 52 weeks immediately
before the injury, a worker--
(a) is promoted; or
(b) is appointed to a different position--
25 (otherwise than on a temporary basis) and, as a
result, the worker's ordinary earnings are
increased, the relevant period in relation to the
worker begins on the day on which the promotion
or appointment takes effect.
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155 Definition applying to pre-injury average weekly
earnings--ordinary earnings
(1) Subject to this section, in relation to pre-injury
average weekly earnings, the ordinary earnings
5 of a worker in relation to a week during the
relevant period are--
(a) if the worker's base rate of pay is calculated
on the basis of ordinary hours worked, the
sum of--
10 (i) the worker's earnings calculated at that
rate for ordinary hours in that week
during which the worker worked or was
on paid leave at the base rate of pay;
and
15 (ii) if the worker receives a piece rate
payment or a commission or both a
piece rate payment and a commission,
the amount of piece rate payments and
commissions the worker receives in
20 respect of that week; or
(b) if paragraph (a) does not apply, the actual
earnings (other than an amount of a kind
referred to in section 156(1)(a), (b), (c), (e)
or (f)) paid or payable to the worker in
25 respect of that week--
and include--
(c) any other amount (other than an amount of a
kind referred to in section 156(1)(a), (b), (c),
(e) or (f)) for the performance of work by the
30 worker, that, under the worker's terms of
employment, the employer is required to
apply or deal with on behalf of the worker in
accordance with the worker's instructions, in
respect of that week; and
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(d) the monetary value of--
(i) residential accommodation; and
(ii) use of a motor vehicle; and
(iii) health insurance; and
5 (iv) education fees--
provided in respect of that week to the
worker by the employer for the performance
of work by the worker (non-pecuniary
benefit).
10 (2) For the purposes of subsection (1)(d), the
monetary value of a non-pecuniary benefit is--
(a) the value that would be the value as a fringe
benefit for the purposes of the Fringe
Benefits Tax Assessment Act 1986 of the
15 Commonwealth, calculated in accordance
with clause 21 of Schedule 1 to this Act,
divided by 52; or
(b) in the case of residential accommodation that
is not a fringe benefit or is otherwise not
20 subject to fringe benefits tax, the amount that
would reasonably be payable for that
accommodation, or equivalent
accommodation in the same area, in respect
of that week if it were let on commercial
25 terms.
(3) A reference to ordinary earnings does not include,
and is deemed never to have included, a reference
to any employer superannuation contribution.
156 Definition applying to pre-injury average weekly
30 earnings and current weekly earnings--base rate of
pay
(1) In relation to pre-injury average weekly earnings
and current weekly earnings, a reference to a base
rate of pay is a reference to the rate of pay
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payable to a worker for his or her ordinary hours
of work but does not include the following--
(a) incentive-based payments or bonuses;
(b) loadings;
5 (c) monetary allowances;
(d) piece rates or commissions;
(e) overtime or shift allowances;
(f) any separately identifiable amount not
referred to in paragraphs (a) to (e).
10 (2) In relation to pre-injury average weekly earnings
and current weekly earnings, if, at the time of the
injury--
(a) a worker's base rate of pay is prescribed by
an industrial award that applies to the
15 worker; and
(b) the worker's actual rate of pay for ordinary
hours is higher than that rate of pay--
the worker's actual rate of pay is to be taken to be
the worker's base rate of pay.
20 157 Definitions applying to pre-injury average weekly
earnings--earnings enhancement and enhancement
period
In relation to pre-injury average weekly
earnings--
25 earnings enhancement, in relation to a worker
who--
(a) during the relevant period, worked paid
overtime or carried out work that
attracted a shift allowance; and
30 (b) but for the worker's injury or death,
would have been likely, at any time
during the enhancement period, to have
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worked paid overtime or carried out
work that attracted a shift allowance--
means the amount calculated in accordance
with the formula--
A
5
B
where--
A is the total amount paid or payable to
the worker for paid overtime and shift
allowances in respect of the relevant
10 period;
B is the number of weeks during the
relevant period during which the
worker worked or was on paid annual
leave at the base rate of pay;
15 enhancement period means--
(a) in relation to compensation in the form
of weekly payments to the worker
under section 161 or 162, the first
52 weeks in respect of which such
20 compensation is paid or payable to the
worker; or
(b) in relation to compensation in the form
of weekly payments of pension under
section 241, the first 52 weeks after the
25 death of the worker.
158 Definition applying to pre-injury average weekly
earnings and current weekly earnings--ordinary
hours of work
In relation to pre-injury average weekly earnings
30 and current weekly earnings, the ordinary hours
of work--
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(a) in the case of a worker to whom an industrial
award applies are--
(i) if the ordinary hours of work in relation
to a week are agreed or determined in
5 accordance with an industrial award
between the worker and the employer,
those hours; or
(ii) in any other case, the worker's average
weekly hours during the relevant period
10 (excluding from that period any week
during which the worker did not
actually work and was not on paid
leave at the base rate of pay); or
(b) in the case of a worker to whom an industrial
15 award does not apply--
(i) if the ordinary hours of work are agreed
between the worker and the employer,
those hours; or
(ii) in any other case, the worker's average
20 weekly hours during the relevant period
(excluding from that period any week
during which the worker did not
actually work and was not on paid
leave at the base rate of pay).
25 159 Twice the State average weekly earnings
(1) Where, under this Part--
(a) a person is entitled, in relation to a financial
year, to an amount at the rate of the whole or
a part of twice the State average weekly
30 earnings; and
(b) continues to be so entitled; and
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(c) the amount of State average weekly earnings
is reduced in respect of a subsequent
financial year--
the person's entitlement, in respect of that
5 subsequent financial year, is to be calculated as if
the reduction had not taken effect, except for the
purposes of this section.
(2) If the amount of State average weekly earnings--
(a) is reduced in respect of a financial year; and
10 (b) is increased in respect of a subsequent
financial year--
that increase has effect in relation to a person to
whom subsection (1) applies only to the extent
(if any) to which the amount of the increase
15 exceeds the amount of the reduction in respect of
the previous financial year, or that part of the
reduction that has not been set off against a
previous increase.
(3) For the purposes of this Act, a reference to twice
20 the State average weekly earnings is a reference
to that amount calculated--
(a) if that amount is less than $1000, to the
nearest whole dollar; or
(b) if that amount is $1000 or more, to the
25 nearest $10.
Division 2--Weekly payments
Subdivision 1--General
160 Compensation in weekly payments [s. 93]
If a worker's incapacity for work results from, or
30 is materially contributed to by, an injury which
entitles the worker to compensation, the
compensation must be in the form of weekly
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payments, subject to and in accordance with this
Act.
161 Weekly payments in first entitlement period
In relation to a claim by a worker for
5 compensation in the form of weekly payments, the
worker is entitled, subject to and in accordance
with this Act, while incapacitated for work during
the first entitlement period, to weekly payments--
(a) if the worker has no current work capacity
10 and no current weekly earnings, at the rate
of--
(i) 95 per cent of the worker's pre-injury
average weekly earnings, less the
deductible amount; or
15 (ii) twice the State average weekly
earnings--
whichever is the lesser; or
(b) if the worker has a current work capacity, or
has no current work capacity but has current
20 weekly earnings, at the rate of--
(i) the difference between 95 per cent of
the worker's pre-injury average weekly
earnings, less the deductible amount
and the worker's current weekly
25 earnings; or
(ii) the difference between twice the State
average weekly earnings and the
worker's current weekly earnings--
whichever is the lesser.
30 162 Weekly payments in second entitlement period
In relation to a claim by a worker for
compensation in the form of weekly payments, the
worker is entitled, subject to and in accordance
with this Act, while incapacitated for work during
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the second entitlement period, to weekly
payments--
(a) if the worker has no current work capacity
and no current weekly earnings, at the rate
5 of--
(i) 80 per cent of the worker's pre-injury
average weekly earnings, less the
deductible amount; or
(ii) twice the State average weekly
10 earnings--
whichever is the lesser; or
(b) if the worker has a current work capacity, or
has no current work capacity but has current
weekly earnings, at the rate of--
15 (i) the difference between 80 per cent of
the worker's pre-injury average weekly
earnings, less the deductible amount
and 80 per cent of the worker's current
weekly earnings; or
20 (ii) the difference between twice the State
average weekly earnings and 80 per
cent of the worker's current weekly
earnings--
whichever is the lesser.
25 163 Weekly payments after the second entitlement
period
(1) Subject to section 165, a worker's entitlement to
compensation in the form of weekly payments
under this Part ceases upon the expiry of the
30 second entitlement period unless the worker is
assessed by the Authority or self-insurer as having
no current work capacity and likely to continue
indefinitely to have no current work capacity.
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(2) A worker to whom subsection (1) applies is
entitled, subject to and in accordance with this
Act, to compensation in the form of weekly
payments, at the rate of--
5 (a) the difference between 80 per cent of the
worker's pre-injury average weekly earnings,
less the deductible amount and, if the worker
has current weekly earnings, 80 per cent of
those current weekly earnings; or
10 (b) the difference between twice the State
average weekly earnings, less, if the worker
has current weekly earnings, 80 per cent of
those current weekly earnings--
whichever is the lesser.
15 (3) A review of the assessment of a worker to whom
subsection (1) applies may 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
20 2 years.
164 Compensation for incapacity arising from surgery
after second entitlement period
(1) Subject to subsection (2), this section applies to a
worker who--
25 (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 20 and received
weekly payments in respect of that injury;
30 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, or current weekly
earnings together with a deductible amount,
35 of at least $177 per week; and
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(d) either, in respect of the injury--
(i) is not entitled to compensation in the
form of weekly payments because of
section 163; or
5 (ii) is entitled under section 165 to
compensation in the form of weekly
payments; and
(e) for at least 13 consecutive weeks
immediately after the expiry of the second
10 entitlement period, has not received
compensation in the form of weekly
payments other than weekly payments under
section 165; and
(f) requires surgery for that injury
15 (the subsequent surgery) for which the
Authority or self-insurer has accepted
liability under section 224(1); and
(g) suffers incapacity resulting from or
materially contributed to by the subsequent
20 surgery; and
(h) has not attained retirement age.
(2) This section does not apply to a worker whose
entitlement to compensation in the form of weekly
payments has ceased (otherwise than under
25 section 163) or been terminated in accordance
with this Act.
(3) A worker to whom this section applies may apply,
in a form approved by the Authority, to the
Authority or self-insurer for compensation in the
30 form of weekly payments in respect of an
incapacity resulting from or materially contributed
to by the subsequent surgery.
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(4) Unless the worker to whom this section applies is
receiving weekly payments under section 165--
(a) the worker is not entitled to compensation in
the form of weekly payments under this
5 section in respect of the first 13 consecutive
weeks after the expiry of the second
entitlement period; and
(b) an application under subsection (3) must not
be made during the period of 13 consecutive
10 weeks immediately after the expiry of the
second entitlement period.
(5) Compensation in the form of weekly payments
under this section is payable at the rate that would
have been applicable under section 162 if the
15 second entitlement period had not expired--
(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
20 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--
25 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
30 (b) give the worker written notice of its decision
including, in the case of rejection, a
statement of the reasons for the decision.
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165 Continuation of weekly payments after second
entitlement period
(1) A worker who has a current work capacity and is,
or has been, entitled to compensation in the form
5 of weekly payments under this Division, may
make an application at any 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
10 weekly payments does not, or will not, cease by
reason only of the expiry of the second
entitlement period.
(2) An application must be made--
(a) if liability to pay the weekly payments lies
15 with the employer (not being a self-insurer or
an eligible subsidiary of a self-insurer) or the
Authority, to the Authority; or
(b) if liability to pay the weekly payments lies
with a self-insurer, to the self-insurer.
20 (3) If the Authority or self-insurer receives an
application under subsection (1), the Authority or
self-insurer must, within 28 days after receiving
the application--
(a) approve or reject the application; and
25 (b) advise the worker in writing of its
determination; and
(c) if the Authority or self-insurer rejects the
application, give the worker a statement of
the reasons for its determination.
30 (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 (whether in
self-employment or other employment) for a
35 period of not less than 15 hours per week and
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is in receipt of current weekly earnings, or
current weekly earnings together with non-
pecuniary benefits within the meaning of
section 155(1)(d), of at least $177 per week;
5 and
(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
10 the worker's current 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 date the
15 Authority or self-insurer received the application
and, subject to and in accordance with this Act,
the worker is entitled to weekly payments at the
rate of--
(a) the difference between 80 per cent of the
20 worker's pre-injury average weekly earnings,
less the deductible amount and 80 per cent of
the worker's current weekly earnings; or
(b) the difference between twice the State
average weekly earnings and 80 per cent of
25 the worker's current weekly earnings--
whichever is the lesser.
(6) A worker continues to be entitled to compensation
in the form of weekly payments under subsection
(5) until--
30 (a) subject to section 166, the 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 weekly
35 payments.
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166 Entitlement under section 165 not affected by
certain circumstances
(1) A worker who receives weekly payments under
section 165 does not cease to be entitled to weekly
5 payments under that section by reason only that
the worker 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
10 subsequent consecutive 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 less
than 15); or
15 (c) has received higher current weekly earnings;
or
(d) has received lower current weekly earnings
(even if the earnings are less than $177 per
week)--
20 than the hours worked, or the current weekly
earnings received, at the time of making the
application for payments under section 165.
(2) A reference in subsection (1) to hours of work
does not include hours of leave approved by the
25 employer.
167 Certificates of capacity for work
(1) Subject to subsection (2), a worker must provide
to the Authority or self-insurer--
(a) certificates of capacity in accordance with
30 this section in respect of the period in respect
of which the worker is entitled to weekly
payments; and
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(b) a declaration in the form approved by the
Authority as to whether or not the worker is
engaged--
(i) in voluntary work; or
5 (ii) in any form of employment or in self-
employment for which he or she
receives or is entitled to receive
payment in money or otherwise or has
been so engaged at any time since last
10 providing a certificate under this
section or section 25.
(2) A certificate of capacity must be--
(a) a certificate under section 25; or
(b) a certificate in a form approved by the
15 Authority given by a medical practitioner,
registered physiotherapist, registered
chiropractor or registered osteopath--
and must--
(c) certify as to the worker's incapacity for work
20 and whether the worker has a current work
capacity or has no current work capacity
during the period, not exceeding 28 days,
stated in the certificate; and
(d) specify the expected duration of the worker's
25 incapacity.
(3) Despite subsection (2)(c), a certificate of capacity
covering a period exceeding 28 days is in
accordance with this section if--
(a) the person giving the certificate states in the
30 certificate the special reasons why the
certificate covers the longer period; and
(b) the Authority or self-insurer is satisfied that,
for the special reasons stated, the certificate
should be accepted.
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(4) A certificate of capacity is of no effect to the
extent that it relates to a period of time more than
90 days before the date on which the certificate is
provided.
5 (5) If a decision to reject a claim for weekly payments
or to terminate weekly payments is set aside, a
worker is not required to comply with subsection
(1) in respect of any period from the date that the
decision took effect until the day on which the
10 decision is set aside.
Subdivision 2--Superannuation contributions
168 Compensation in the form of superannuation
contributions
(1) If--
15 (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--
(i) has been paid or is payable to the
20 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 payable in
respect of that injury; and
25 (c) the worker has not attained the age of
65 years--
the Authority or self-insurer must, subject to the
worker nominating a complying fund to the
Authority or self-insurer and providing details of
30 his or her tax file number to the trustee of the
nominated complying fund within 3 months of
receipt of a notice under subsection (4), pay, in
accordance with this section, for the benefit of the
worker, compensation in the form of
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superannuation contributions to the nominated
complying fund.
(2) Subsection (1) does not apply in respect of a
worker in relation to any period in respect of
5 which--
(a) the worker's employer makes contributions
for the benefit of the worker to any scheme
or fund for the payment of superannuation,
retirement benefits or death benefits (other
10 than under a salary sacrifice agreement or
arrangement); and
(b) those contributions--
(i) exceed the contributions (if any)
necessary for the employer to avoid an
15 individual 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 employer to the
20 worker that arises because of the
worker's injury under any public sector
superannuation scheme, agreement or
arrangement or any law of the
Commonwealth or a State or Territory
25 relating to superannuation or an
industrial award.
(3) The amount that the Authority or self-insurer is
liable to pay, subject to and in accordance with
this section, as compensation in the form of
30 superannuation contributions for the benefit of a
worker is the amount equal to the charge
percentage of the compensation in the form of
weekly payments payable to the worker under this
Part after the expiry of the period referred to in
35 subsection (1)(b)(i) other than--
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(a) compensation under section 164, unless the
worker is receiving compensation under
section 165; and
(b) compensation under section 170.
5 (4) Subject to subsection (1), 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 of superannuation contributions subject
to and in accordance with this section, notify the
10 worker in writing--
(a) that the Authority or self-insurer is so liable
and of the date on which it became so liable;
and
(b) of the amount of its liability, expressed as the
15 charge percentage of the weekly amount that
the worker receives as compensation in the
form of weekly payments in respect of the
injury; and
(c) that the Authority or self-insurer is required
20 to pay the contributions to a complying fund
nominated by the worker; and
(d) that the worker is required to nominate a
complying fund to the Authority or self-
insurer; and
25 (e) that contributions cannot be paid to the
nominated complying fund unless the
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
30 nominated complying fund; and
(f) that the worker is entitled to nominate a
different complying fund, but not more than
once in any period of 12 months; and
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(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
5 3 months after the date on which the 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
10 any period before it receives those details.
(5) Subject to subsection (1), payment under this
section must be made to the worker's nominated
complying fund--
(a) in the case of the Authority, within--
15 (i) 30 days after it is informed by the
worker's employer that compensation in
the form of weekly payments has been
paid; or
(ii) 120 days after compensation in the
20 form of weekly payments has been
paid--
whichever first occurs;
(b) in the case of a self-insurer, at least
quarterly.
25 (6) Despite anything to the contrary in section 92, the
Authority is liable to pay compensation in the
form of superannuation contributions in
accordance with this section.
(7) Where the liability of the Authority under this
30 section is discharged, the discharge is to be treated
as if a liability of the employer is discharged.
(8) In this section--
charge percentage means the percentage
applicable for the time being under
35 section 19(2) of the Superannuation Act;
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complying fund means a complying
superannuation fund or scheme within the
meaning of section 7 of the Superannuation
Act but does not include--
5 (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
10 section 6A(2) of that Act;
Superannuation Act means the Superannuation
Guarantee (Administration) Act 1992 of the
Commonwealth.
Subdivision 3--Compensation after retirement
15 169 Injury after retirement
If a worker is injured within the period of
130 weeks before attaining retirement age or after
attaining retirement age, the worker is entitled to
weekly payments under this Act for not more than
20 the first 130 weeks (whether consecutive or not)
of incapacity for work.
170 Compensation for incapacity arising after
retirement age
(1) This section applies to a worker, not being a
25 worker to whom section 169 applies, if the
worker--
(a) before retirement age--
(i) suffered an injury arising out of or in
the course of employment; and
30 (ii) made a claim for compensation in
respect of that injury under section 20;
and
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(b) received a weekly payment of compensation
in respect of that injury within the period of
10 years before the worker attained
retirement age; and
5 (c) after retirement age, became incapacitated
for work and the incapacity is a consequence
of treatment received after retirement age as
an inpatient at a hospital for that injury; and
(d) is not entitled to weekly payments only
10 because section 171 applies.
(2) If this section applies to a worker, the worker may
apply in writing to the Authority or self-insurer
for weekly payments in respect of the incapacity
payable at the rate specified in section 162(a)
15 or (b).
(3) The maximum period of weekly payments
payable under this section is 13 weeks.
(4) A worker who makes an application in accordance
with subsection (2) is entitled to receive weekly
20 payments under this section if--
(a) the worker was a worker at the time the
incapacity arose; and
(b) the incapacity is in respect of the work that
the worker was performing immediately
25 before the incapacity arose; and
(c) the worker has not ceased to become entitled
to weekly payments due to the application of
this Part or Part 4 or section 261(1)
or 347(1); and
30 (d) the worker has not previously received
payment of compensation in respect of the
injury under this section.
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(5) An application under subsection (2) must--
(a) specify the reason for the application; and
(b) be provided with supporting evidence.
(6) Within 28 days of receiving the application, the
5 Authority or self-insurer must--
(a) approve or reject the application; and
(b) give the worker written notice of its decision,
including in the case of rejection, a statement
of the reasons for the decision.
10 171 Compensation after retirement
Subject to sections 169 and 170, a worker is not
entitled to weekly payments under this Act after
attaining retirement age.
Subdivision 4--Effect of certain pensions on weekly
15 payments
172 Effect of disability or other pensions and lump sums
on weekly payments
(1) The amount of any weekly payment payable to a
worker under this Part must be reduced by the
20 weekly amount of any retirement or
superannuation pension received by the worker
that relates to the worker's retirement from, or the
cessation or termination of, the employment out
of, or in the course of which, or due to the nature
25 of which, the injury arose.
(2) If a worker--
(a) receives a superannuation or retirement
benefit lump sum that--
(i) relates to the worker's retirement from,
30 or cessation or termination of, the
employment out of, or in the course of
which, the injury arose; and
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(ii) has not been deposited with a
complying superannuation fund or a
complying approved deposit fund; or
(b) withdraws or redeems any part of, or
5 withdraws or redeems any interest, or part of
any interest on, such a superannuation or
retirement benefit lump sum that has been
deposited with a complying superannuation
fund or a complying approved deposit
10 fund--
the worker is not entitled to weekly payments
under this Part during the specified period after
the date on which he or she received the lump sum
or made the withdrawal or redemption, as the case
15 requires, or became eligible to receive weekly
payments, whichever is the later.
(3) The specified period for the purposes of
subsection (2) is the number of weeks determined
by dividing the amount received, withdrawn or
20 redeemed by the worker's pre-injury average
weekly earnings as varied in accordance with
Division 1 of Part 13.
(4) If a worker withdraws or redeems any part of the
amount deposited or used under subsection (2)
25 which represents the worker's own contributions
for the purpose of an approved capital expenditure
within the meaning of subsection (5), subsection
(2) does not apply in respect of that withdrawal or
redemption.
30 (5) For the purposes of subsection (4), approved
capital expenditure means capital expenditure
approved by the Authority or by a self-insurer in
accordance with guidelines made by the
Authority.
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(6) The Authority must ensure that guidelines made
under subsection (5) are published and generally
available.
(7) The amount of compensation in the form of
5 weekly payments payable to a worker under this
Part must be reduced by the amount (if any) by
which the sum of--
(a) the weekly payment that would be payable
but for this subsection; and
10 (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 compensation in the form of weekly
payments is payable to the worker; and
15 (c) the worker's current weekly earnings--
exceeds the supplemental pension limit.
(8) In this section--
disability pension, in relation to a worker, means
an amount payable under an insurance policy
20 or by a trustee acting as a trustee that--
(a) relates to an injury in respect of which
compensation in the form of weekly
payments is payable under this Part;
and
25 (b) is payable in the form of periodic
payments to or for the benefit of the
worker--
but does not include a retirement or
superannuation pension;
30 supplemental pension limit, in relation to a
worker, means the worker's pre-injury
average weekly earnings in respect of the
relevant period as calculated under
section 153 as indexed in accordance with
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Division 1 of Part 13 and calculated as if the
enhancement period within the meaning of
section 157 had not expired.
173 Notification of entitlement to certain payments
5 (1) If a worker who is claiming weekly payments
under this Part receives a pension specified in
section 172(1) or a lump sum amount specified in
section 172(2), the worker must within 14 days of
first receiving the pension or lump sum amount
10 give notice in writing to the person from whom
weekly payments are being claimed of the nature,
source and amount of the pension or lump sum
amount.
(2) If a worker--
15 (a) has received or is receiving a pension
specified in section 172(1) or a lump sum
amount specified in section 172(2); or
(b) has withdrawn or redeemed any part of the
amount deposited or used under
20 section 172(2)--
at the time that the worker makes a claim for the
payment of weekly payments under this Part, the
worker must give notice in writing of the nature,
source and amount of the pension or lump sum
25 amount or of the withdrawal or redemption at the
same time that the claim is given, served or
lodged.
(3) A worker required to give notice in writing under
subsection (1) or (2) must within 14 days give
30 notice in writing to the person from whom weekly
payments are being claimed if--
(a) there is any change in the amount of the
pension or lump sum amount; or
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(b) he or she withdraws or redeems any part of
the amount deposited or used under
section 172(2).
(4) If an employer (not being a self-insurer or a
5 subsidiary of a self-insurer) against whom a
worker is claiming weekly payments under this
Part becomes aware that the worker is, or may be,
entitled to--
(a) a pension specified in section 172(1); or
10 (b) a lump sum amount specified in
section 172(2)--
the employer must within 28 days of becoming so
aware give notice in writing to the Authority, of
the entitlement.
15 (5) If an employer (not being a self-insurer or an
eligible subsidiary of a self-insurer) against whom
a worker makes a claim for the payment of weekly
payments under this Part is at the time that the
worker makes the claim aware that the worker is,
20 or may be, entitled to--
(a) a pension specified in section 172(1); or
(b) a lump sum amount specified in
section 172(2)--
the employer must within 28 days of the making
25 of the claim give notice in writing to the
Authority, of the entitlement.
(6) A reference in this section to claiming weekly
payments includes--
(a) making a claim; or
30 (b) claiming to be entitled to weekly payments;
or
(c) receiving weekly payments.
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(7) A person who fails to comply with this section is
guilty of an offence.
Penalty: 60 penalty units.
Subdivision 5--Provisions relating to the payment of
5 compensation
174 Regard not to be had to certain contracts etc.
Except as provided in section 172, regard must not
be had, in respect of the entitlement to, or amount
of, compensation under this Part, to any sum paid
10 or payable--
(a) under any contract of assurance or insurance
(including a contract made with any friendly
or other benefit society or association or any
trade union); or
15 (b) out of any relief or sustentation fund or other
fund (whether statutory or otherwise) of a
like nature; or
(c) by way of accident make-up pay under any
industrial award; or
20 (d) in lieu of accrued annual leave or long
service leave.
175 Absence from Australia
(1) If a worker who is receiving weekly payments
ceases to reside in Australia, his or her entitlement
25 to weekly payments ceases unless the worker has,
before leaving Australia, satisfied the Authority or
self-insurer that the worker has no current work
capacity and is likely to continue indefinitely to
have no current work capacity.
30 (2) If a worker ceases to reside in Australia and
subsequently claims to be entitled to the payment
of weekly payments, the worker must, in addition
to establishing his or her entitlement, satisfy the
Authority or self-insurer that the worker has no
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current work capacity and is likely to continue
indefinitely to have no current work capacity.
(3) If a worker who is receiving weekly payments is
temporarily absent from Australia, his or her
5 entitlement to weekly payments is limited to a
maximum aggregate period of 28 days in respect
of any certificate or certificates provided by a
medical practitioner outside Australia unless the
Authority or self-insurer is satisfied that there are
10 special circumstances which justify the extension
of that period for a further period as is specified in
the certificate.
(4) If the Authority or self-insurer is satisfied that the
worker has no current work capacity and is likely
15 to continue indefinitely to have no current work
capacity, a worker to whom subsection (1) or (2)
applies is entitled to receive at quarterly intervals
the amount of weekly payments accruing due
during the preceding quarter if the worker proves
20 in the prescribed manner and at the prescribed
intervals--
(a) his or her identity; and
(b) the continuance of the incapacity in respect
of which the weekly payment is made.
25 176 Further provisions concerning compensation
(1) Compensation under this Act is absolutely
inalienable whether by way of, or in consequence
of, any sale, assignment, charge, execution,
bankruptcy, attachment, legal process or by
30 operation of law or any other means and no claim
may be set off against compensation under this
Act.
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(2) Despite subsection (1), the Authority or self-
insurer is entitled to set off against any weekly
payments to which a worker is entitled any
amount of compensation in the form of weekly
5 payments previously paid to the worker if the
worker--
(a) was not entitled to receive that amount of
compensation by virtue of section 172(1)
or (2); and
10 (b) has failed to give any notice in writing
required under section 173.
(3) Despite subsection (1), the Authority or self-
insurer is entitled to set off against any weekly
payments to which a worker is entitled, the
15 amount awarded to the Authority or self-insurer
by an order made by a court under this Act or
section 86 of the Sentencing Act 1991 after the
worker is convicted, or found guilty, of an offence
under this Act or the Crimes Act 1958, in
20 connection with a claim for compensation under
this Act.
177 Sentences of imprisonment
A person is not entitled to weekly payments under
this Act in respect of any period during which the
25 person serves a sentence of imprisonment
(whether imposed under the law of this State or of
any other place) in a prison within the meaning of
the Corrections Act 1986 or in a prison or similar
institution outside Victoria.
30 178 Time for payment
(1) If a Conciliation Officer directs, or the
Magistrates' Court or the County Court
determines, that weekly payments are payable by
the Authority or a self-insurer, the Authority or
35 self-insurer must commence payment, including
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amounts payable under section 193, no later than
7 days after the direction or determination.
(2) On the commencement of payment under
subsection (1), the Authority or self-insurer must
5 pay an amount equal to any outstanding weekly
payments to the worker.
(3) If the Authority, a self-insurer or an employer
accepts a claim for weekly payments, payments,
including amounts payable under section 193,
10 must commence to be paid within 7 days after the
claim is accepted.
(4) If a Conciliation Officer directs, or the
Magistrates' Court or the County Court
determines, that weekly payments be made,
15 section 193 applies and the entitlement of the
worker to weekly payments commences on the
date specified by the Conciliation Officer or by
the Magistrates' Court or the County Court.
179 Payment of weekly payments
20 (1) A weekly payment must be made to a worker--
(a) before the expiry of 7 days after the end of
the week in respect of which it is payable; or
(b) if the worker would be paid less frequently if
the worker were at work, at such time or at
25 such intervals as he or she would be paid if
at work.
(2) The liability to a worker is not satisfied until the
worker receives the weekly payment.
(3) If--
30 (a) an employer is notified by the Authority that
a worker is entitled to weekly payments; or
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(b) a self-insurer determines that a worker is
entitled to weekly payments--
the employer or self-insurer, as the case may be,
must make weekly payments to the worker in
5 accordance with subsection (1).
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
10 (4) A self-insurer--
(a) to which a direction or determination under
section 178(1) to pay weekly payments
applies, must commence payment within
7 days after the direction or determination is
15 made; or
(b) which accepts a claim under 178(3) to make
weekly payments to a worker and there are
any outstanding payments of weekly
payments, must pay those outstanding
20 weekly payments to the worker within 7 days
after accepting the claim.
Penalty: 300 penalty units.
(5) If an employer is required to make a payment of
weekly payments before the employer receives the
25 payment from the Authority, the employer must
be reimbursed by the Authority.
(6) If an employer to whom subsection (5) applies
does not apply within 3 months after making the
payment of weekly payments to a worker for
30 reimbursement by the Authority, the Authority is
not required to reimburse the employer but may
do so if satisfied that the employer's delay in
making the application was reasonable.
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(7) If the Authority does not reimburse the employer
in respect of a payment referred to in
subsection (5) within the prescribed period, the
Authority is liable to pay the employer interest at
5 the prescribed rate on the amount of the payment
until the Authority reimburses the employer in
respect of the payment.
(8) In this section, employer includes, in relation to
the employment of a student worker, a self-insurer
10 or an eligible subsidiary of a self-insurer.
Division 3--Alteration or termination of weekly payments
and superannuation contributions
180 Application of Division
This Division, except sections 182 and 185,
15 applies only if the worker is currently receiving
weekly payments as at the date of the change in
the entitlement of the worker to weekly payments.
181 Application by worker to alter amount of weekly
payments
20 (1) A worker who is receiving weekly payments may
apply in writing to the Authority or self-insurer
for an increase or reduction in the amount of the
payments.
(2) An application under subsection (1) must--
25 (a) specify the reasons for so applying; and
(b) be accompanied by any supporting evidence.
(3) Within 28 days after receiving an application, the
Authority or self-insurer must--
(a) approve or reject the application; and
30 (b) give the worker and the employer written
notice of its decision, including, in the case
of rejection, a statement of the reasons for
the decision.
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182 Authority or self-insurer may terminate or alter
weekly payments
The Authority or self-insurer may, in accordance
with this Act--
5 (a) terminate a worker's entitlement to weekly
payments; or
(b) alter the basis on which the amount of the
weekly payment is to be calculated--
whether or not the worker is currently receiving
10 weekly payments.
183 Grounds for alteration or termination of weekly
payments
(1) In addition to other grounds under this Act for
termination or alteration of weekly payments, the
15 Authority or a self-insurer--
(a) may increase or reduce weekly payments on
the ground that there is not, or is no longer,
an entitlement to weekly payments of the
existing amount; or
20 (b) may terminate weekly payments on the
ground that--
(i) the worker is not entitled to
compensation under Division 3 of
Part 2 or Division 2 of this Part; or
25 (ii) the worker is not, or is no longer,
entitled to weekly payments; or
(c) may terminate or alter weekly payments on
the ground that--
(i) the worker has returned to any work
30 whether as a self-employed person or in
employment; or
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(ii) in the case of a worker who has current
weekly earnings, the amount of the
worker's current weekly earnings alters;
or
5 (iii) payments for regular overtime or shift
allowances are no longer included in
the worker's pre-injury average weekly
earnings; or
(iv) a non-pecuniary benefit within the
10 meaning of section 155(1)(d) or
156(1)(b) is varied or no longer paid; or
(v) a non-pecuniary benefit provided by an
employer in the circumstances referred
to in paragraph (b) of the definition of
15 deductible amount is varied or no
longer paid.
(2) A termination or alteration of weekly payments on
a ground specified in subsection (1)(a) or (b) has
effect--
20 (a) only if written notice in accordance with
section 188 is given; and
(b) after the expiry of the required notice period.
(3) A termination or alteration of weekly payments on
a ground specified in subsection (1)(c) has
25 effect--
(a) without the giving of notice; and
(b) as from the day on which the circumstances
establishing the ground first arise.
(4) The Authority or a self-insurer may terminate
30 weekly payments if it considers that payments
were obtained fraudulently.
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(5) A termination of weekly payments on the ground
specified in subsection (4) has effect--
(a) if written notice in accordance with
section 188 is given; and
5 (b) as from the day (whether before, on or after
the giving of the notice) on which the
Authority or self-insurer makes the decision.
184 Grounds for alteration or termination of
superannuation contributions
10 The Authority or a self-insurer is not required to
give written notice to the worker of--
(a) an alteration of compensation in the form of
superannuation contributions where the
alteration is because of an alteration in the
15 compensation in the form of weekly
payments paid or payable to the worker; or
(b) the termination of compensation in the form
of superannuation contributions where the
termination is because the worker is not, or
20 has ceased to be, entitled to compensation in
the form of weekly payments.
185 Where worker's weekly payments are reduced
(1) If the current weekly earnings of a worker who--
(a) has an incapacity for work resulting from, or
25 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 in the form of weekly
payments--
30 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--
(i) has resigned; or
5 (ii) reduced the hours worked otherwise
than in the circumstances referred in
section 166--
for reasons unrelated to the worker's
incapacity--
10 the Authority or a self-insurer may determine--
(f) not to alter the amount of compensation in
the form of weekly payments paid to the
worker; or
(g) not to pay compensation in the form of
15 weekly payments.
(2) If the Authority or a self-insurer makes a
determination under subsection (1)--
(a) the Authority or self-insurer must give
written notice to the worker of the
20 determination and the reasons for it; and
(b) the worker's entitlement to compensation in
the form of weekly payments is adjusted in
accordance with the determination.
(3) A determination under subsection (1) takes
25 effect--
(a) from the day on which the current weekly
earnings were reduced; or
(b) if the Authority or self-insurer specifies a
later date in the determination, on that later
30 date.
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(4) If the current weekly earnings of a worker are
reduced because the worker is on paid annual
leave or long service leave, the Authority or self-
insurer must not, by reason only of that reduction,
5 alter the amount of compensation in the form of
weekly payments.
186 Termination or alteration of weekly payments under
certain provisions
(1) A termination of weekly payments payable under
10 section 164 has effect--
(a) without the giving of notice; and
(b) as from--
(i) the day on which the worker ceases to
suffer incapacity resulting from, or
15 materially contributed to by, the
subsequent surgery; or
(ii) the expiry of the period of 13 weeks
commencing on the day on which the
relevant surgery is performed--
20 whichever first occurs.
(2) A termination or alteration of weekly payments on
the grounds specified in section 169, 171, 172,
175(1), 177 or 347(1) has effect--
(a) without the giving of notice; and
25 (b) as from the day on which the circumstances
establishing the relevant ground first arise.
(3) A termination of weekly payments under
section 170 has effect--
(a) without the giving of notice; and
30 (b) as from the expiry of the period not
exceeding 13 weeks for which the payment
is granted under that section.
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(4) A reduction of weekly payments solely on the
ground of the expiry of the first entitlement period
has effect if--
(a) written notice in accordance with section 188
5 is given; and
(b) section 190 has been complied with.
(5) A termination of weekly payments solely on the
ground of the expiry of the second entitlement
period has effect if--
10 (a) written notice in accordance with section 188
is given; and
(b) section 191 has been complied with.
187 When termination of compensation in the form of
superannuation contributions has effect
15 (1) Subject to this section, the Authority or a self-
insurer may terminate the payment of
compensation in the form of superannuation
contributions in respect of a worker on the ground
that the worker--
20 (a) is not, or has ceased to be, entitled to such
compensation; or
(b) is not, or has ceased to be, entitled to
compensation in the form of weekly
payments.
25 (2) The Authority or self-insurer must not terminate
payments in the form of superannuation
contributions (otherwise than because the worker
is not, or has ceased to be, entitled to
compensation in the form of weekly payments)
30 unless the Authority or self-insurer gives a notice
in writing to the worker in accordance with
section 188.
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188 Notices
A notice in accordance with this section must--
(a) be given to the worker; and
(b) state the reasons for giving the notice; and
5 (c) state--
(i) in the case of termination, when weekly
payments will cease; or
(ii) in the case of alteration, the new level
of weekly payments and when
10 payments at the new level will
commence; or
(iii) in the case of termination of payments
in the form of superannuation
contributions under section 187(2),
15 when payments will cease.
189 When a required period of notice must be given
(1) If a worker--
(a) has received weekly payments of
compensation for a continuous period of at
20 least 12 weeks; and
(b) has provided the worker's employer, or
where applicable, the Authority or self-
insurer with a certificate of capacity in
accordance with section 167--
25 the Authority or self-insurer must not terminate or
reduce weekly payments during the period of
incapacity so specified without giving the worker
the required period of notice of intention to do so.
(2) If weekly payments are terminated or reduced in
30 contravention of subsection (1), the worker may
recover from the Authority or self-insurer an
amount of compensation that--
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(a) if no period of notice has been given, is
equal to the amount of compensation or
additional compensation, that would have
been payable during the required period of
5 notice if weekly payments had not been
terminated or reduced; or
(b) if less than the required period of notice has
been given, is equal to the amount of
compensation that would have been payable
10 during the balance of the required period of
notice if weekly payments had not been
terminated or reduced.
(3) The required period of notice, unless expressly
otherwise provided in this Act is--
15 (a) if the worker has been receiving weekly
payments of compensation for a continuous
period of at least 12 weeks but less than one
year, 14 days; or
(b) if compensation in the form of
20 superannuation contributions has been paid
in respect of a worker for a continuous
period of at least 12 weeks but less than one
year, 14 days; or
(c) if the worker has been receiving weekly
25 payments of compensation for a continuous
period of one year or more, 28 days; or
(d) if compensation in the form of
superannuation contributions has been paid
in respect of a worker for a continuous
30 period of one year or more, 28 days; or
(e) if the termination of weekly payments is
solely on the ground of the expiry of the
second entitlement period, 13 weeks;
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(f) if the worker has been receiving
compensation in the form of weekly
payments under section 165 and ceases to be
entitled to receive such compensation,
5 28 days; or
(g) if the worker has been receiving
compensation in the form of weekly
payments under section 165 and the
termination is because the employer has
10 withdrawn the employment, 13 weeks
commencing on the day on which the
employer informs the worker of the
withdrawal of employment.
190 Reduction of weekly payments after the first
15 entitlement period
(1) Weekly payments must not be reduced under
section 186(4)--
(a) unless the Authority or self-insurer has made
a determination of the worker's entitlement
20 under section 162; and
(b) until the Authority or self-insurer has given
at least 14 days notice under section 189 of
the decision following that determination.
(2) The notice is not invalid only because the date
25 specified in the notice as the date on which the
reduction is to take effect is not a date
immediately after the expiry of the first
entitlement period but has effect--
(a) on the date immediately after the completion
30 of the first entitlement period; or
(b) if the date specified in the notice is a later
date, the later date.
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(3) Despite anything to the contrary in section 162,
until notice is given to a worker and the date
specified in the notice has expired, the worker is
deemed to be entitled to weekly payments in
5 respect of any period after the expiry of the first
entitlement period under section 162(a) or (b)
provided that the worker is, but for the expiry of
13 weeks, otherwise entitled to weekly payments.
(4) Subsections (1)(b), (2) and (3) do not apply if the
10 claim for weekly payments is made within the
period of 42 days before the expiry of the first
entitlement period.
(5) If subsection (4) applies and weekly payments are
commenced, the entitlement to weekly payments
15 in respect of any period after the expiry of the first
entitlement period must be determined in
accordance with section 162.
191 Termination of weekly payments after expiry of
second entitlement period
20 (1) Weekly payments must not be terminated under
section 186(5)--
(a) unless the Authority or self-insurer has made
a determination of the worker's entitlement
to weekly payments after the expiry of the
25 second entitlement period; and
(b) until the Authority or self-insurer has given
at least 13 weeks notice under section 189 of
the determination following the making of
the determination.
30 (2) A determination under subsection (1) may be
made before, on or after the expiry of the second
entitlement period so as to terminate payments at
or after the expiry of that entitlement period.
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(3) The notice is not invalid only because the date
specified in the notice as the date on which the
termination is to take effect is not a date
immediately after the expiry of the second
5 entitlement period but has effect--
(a) on the date immediately after the completion
of the second entitlement period; or
(b) if the date specified in the notice is a later
date, the later date.
10 (4) If subsection (1) applies and notwithstanding
anything to the contrary in section 163(1), until
notice is given to a worker and the date specified
in the notice has expired, the worker is deemed to
be entitled to weekly payments under section 162
15 in respect of any period after the expiry of the
second entitlement period provided that the
worker is, but for the expiry of the entitlement
period, otherwise entitled to weekly payments.
(5) Subsections (1)(b), (3) and (4) do not apply if the
20 claim for weekly payments is made within the
period of 119 days before the expiry of the second
entitlement period.
(6) If subsection (5) applies and weekly payments are
commenced, the entitlement to weekly payments
25 in respect of any period after the expiry of the
second entitlement period must be determined in
accordance with section 163(1).
192 Notice of reduction of weekly payments
(1) On becoming aware that section 42, 43 or 44
30 applies to a worker who is receiving, 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
35 with section 188 of the reduction in the
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amount of the worker's weekly payments;
and
(b) weekly payments must not be reduced before
the notice has been given.
5 (2) Section 189(3) does not apply to a notice given
under subsection (1) of this section.
193 Outstanding weekly payments
(1) The amount of outstanding weekly payments and
interest at the prescribed rate on each outstanding
10 weekly payment are payable to the worker in the
following circumstances and in respect of the
periods specified in relation thereto--
(a) if a Conciliation Officer directs that weekly
payments be commenced or continued to be
15 paid at the current rate or increased, from the
day--
(i) on which incapacity commenced; or
(ii) on which weekly payments were
terminated or altered; or
20 (iii) on which the worker's application to
increase the amount of weekly
payments was received by the
Authority or self-insurer--
until the day on which the direction is
25 revoked or payments are commenced,
continued or increased, whichever is the
earlier; or
(b) subject to subsection (2), if a decision to
reject a claim for weekly payments is set
30 aside by the Magistrates' Court or the County
Court, from the day on which the incapacity
commenced until the day on which the
decision is set aside; or
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(c) subject to subsection (2), if a decision to
terminate or reduce weekly payments is set
aside by the Magistrates' Court or the County
Court, from the day on which the decision
5 took effect until the day on which the
decision is set aside; or
(d) subject to subsection (2), if a decision to
reject an application by a worker to increase
the amount of weekly payments is set aside
10 by the Magistrates' Court or the County
Court, from a day determined by the
Magistrates' Court or the County Court until
the day on which the decision is set aside; or
(e) if an employer, the Authority or a self-
15 insurer fails to make any weekly payment as
and when required by this Act to be made to
a worker, from the day after the payment was
required to be made until the day before the
payment is made.
20 (2) If, within a year after being notified under
section 298(1) that an application concerning
weekly payments may be made to the Magistrates'
Court or the County Court, the worker has not
made such an application, interest is not payable
25 under subsection (1) in respect of the period
beginning on the expiry of one year after that
notification and ending on the day on which an
application is made.
(3) If an employer is responsible for making weekly
30 payments to a worker, the Authority must pay the
employer the amount of any outstanding weekly
payments payable under subsection (1).
(4) Subsection (3) does not apply to a self-insurer or
an eligible subsidiary of a self-insurer except in
35 relation to the employment of a student worker.
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194 Outstanding superannuation contributions
(1) Subject to subsection (2)--
(a) outstanding payments of compensation in the
form of superannuation contributions under
5 section 168; and
(b) 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
10 paid--
are payable to the superannuation fund nominated
by the worker under section 168 for the benefit of
the worker if a decision to terminate
superannuation contributions under section 187 is
15 set aside by the court.
(2) If a worker has not made an application to the
court within one year after being notified by a
Conciliation Officer--
(a) that the Conciliation Officer is satisfied that
20 there is a dispute with respect to liability to
make or continue to make payments of
compensation in the form of superannuation
contributions under section 168; and
(b) that an application may be made to the court
25 to determine the 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.
30 (3) If, under section 193, outstanding payments of
compensation in the form of weekly payments are
payable in the circumstances referred to in section
193(1)(b), (c) or (d), then, subject to
section 168--
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(a) compensation in the form of superannuation
contributions under that section in respect of
those outstanding payments; and
(b) interest at the prescribed rate on each such
5 payment--
are also payable.
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Division 4--Claims for compensation for non-economic loss
195 Flow chart 6--impairment benefits process
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196 Definitions
(1) In this Division--
Division 5 claim means a claim by a worker for
compensation under Division 5, including a
5 claim under that Division in respect of
additional injuries made in accordance with
section 204(2)(a);
relevant date, in relation to a Division 5 claim,
means--
10 (a) if the worker makes the claim in
accordance with section 204(2)(a), the
day on which the claim is received by
the Authority or self-insurer; or
(b) if the worker advises the Authority or
15 self-insurer that he or she disputes the
written statement of the injury or
injuries under section 204(1), the day
on which the dispute is resolved; or
(c) if the worker does not make a claim or
20 dispute the written statement of the
injury or injuries under section 204(1)
within the period specified under
section 204(2), the day on which that
period expires; or
25 (d) if the worker accepts the written
statement of the injury or injuries under
section 204(1), the day on which the
Authority or self-insurer receives the
advice of the worker that he or she
30 accepts the written statement of the
injury or injuries.
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(2) For the purposes of this Division, liability in
relation to a claim does not include a question as
to--
(a) the degree of permanent impairment of a
5 worker; or
(b) whether a worker has an injury which is a
total loss mentioned in the Table in
Schedule 4.
197 Claims for compensation under Division 5
10 (1) In addition to the requirements under section 20,
this Division applies to a Division 5 claim.
(2) Subject to subsection (3), a Division 5 claim, not
being a claim for compensation for industrial
deafness, cannot be made before the expiry of the
15 period of 12 months after the date of the relevant
injury.
(3) Despite subsection (2), the Authority or a self-
insurer may receive a Division 5 claim before the
expiry of the period of 12 months after the date of
20 the relevant injury if the relevant injury has
stabilised.
(4) A worker must include all injuries arising out of
the same event or circumstance in a Division 5
claim.
25 (5) A worker can make only one Division 5 claim in
respect of injuries arising out of the same event or
circumstance.
(6) Subject to section 204(2)(a), if a Division 5 claim
is initiated in respect of a worker by the Authority
30 or self-insurer under section 199, the worker
cannot make a Division 5 claim in respect of
injuries arising out of the same event or
circumstance.
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198 Division 5 claim cannot be made unless all
proceedings under section 328(2)(b) have been
determined
If a worker has commenced an application under
5 section 328(2)(b) in respect of an injury, the
worker cannot make a Division 5 claim in respect
of that injury unless all proceedings under or in
accordance with Division 2 of Part 7 in respect of
that application have been finally determined or
10 withdrawn.
199 Initiation of claim by Authority or self-insurer
(1) If liability has been accepted or determined in
respect of a prior claim for compensation for an
injury, the Authority or a self-insurer may, after
15 the expiry of the period of 18 months after the
date of the relevant injury and without a
Division 5 claim having been made, request the
worker to attend an independent examination
under section 203(1).
20 (2) For the purposes of this section, a request under
subsection (1) has the effect of initiating a
Division 5 claim in respect of the worker by the
Authority or self-insurer.
200 Authority may suspend a claim
25 (1) The Authority or self-insurer, within 90 days after
receiving a Division 5 claim from a worker, may,
by notice in writing to the worker, suspend the
claim if--
(a) the Authority or self-insurer has insufficient
30 medical or other information to determine
the matters specified in section 201(1); or
(b) the Authority or self-insurer cannot make a
determination under section 201(1) because
the condition of the injury of the worker is
35 not stable.
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(2) The Authority or self-insurer must, within
14 days--
(a) if subsection (1)(a) applies, of having
sufficient medical and other information to
5 determine the matters specified in
section 201(1); or
(b) if subsection (1)(b) applies, of being able to
make a determination under 201(1) because
the condition of the injury of the worker has
10 stabilised--
by notice in writing to the worker remove the
suspension under subsection (1).
201 Authority or self-insurer to accept or reject claim
(1) The Authority or self-insurer must, within
15 120 days after receiving a Division 5 claim from a
worker or, in the case of a claim initiated by the
Authority or self-insurer, within 120 days of the
relevant date--
(a) if the claim is a Division 5 claim made by a
20 worker, accept or reject liability for each
injury included in the claim; and
(b) obtain an assessment or assessments in
accordance with Division 4 of Part 2 as to
the degree of permanent impairment (if any)
25 of the worker resulting from the injury or
injuries in respect of which liability is
accepted; and
(c) after taking into account the assessment or
assessments obtained under paragraph (b),
30 determine the degree of permanent
impairment (if any) of the worker for each of
the purposes of--
(i) Division 5; and
(ii) Division 2 of Part 7;
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(d) determine whether the worker has an injury
which is a total loss mentioned in the Table
in Schedule 4; and
(e) calculate any entitlement to compensation
5 under Division 5; and
(f) advise the worker as to--
(i) if the claim is a Division 5 claim made
by the worker, the decision to accept or
reject liability for each injury included
10 in the claim; and
(ii) each of the determinations as to the
degree of permanent impairment
(if any) of the worker and whether the
worker has an injury which is a total
15 loss mentioned in the Table in
Schedule 4 resulting from the injury or
injuries in respect of which liability is
accepted; and
(iii) the calculation of any entitlement to
20 compensation under Division 5; and
(g) provide to the worker a copy of--
(i) any medical reports, correspondence
and other documents provided to; and
(ii) any medical reports, correspondence
25 and other documents obtained from--
any medical practitioner referred to in
section 54(1)(b) conducting an independent
examination.
(2) The Authority or self-insurer is not bound by the
30 assessment or assessments obtained under
subsection (1)(b) in determining the degree of any
permanent impairment under subsection (1)(c).
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202 No proceedings by worker in relation to rejection of
liability without certificate of Conciliation Officer
(1) This section applies if--
(a) the Authority or self-insurer rejects liability
5 in relation to the injuries included in the
claim for compensation under Division 5
made by a worker; and
(b) the worker disputes the decision as to
liability.
10 (2) If this section applies, the worker must not
commence proceedings in relation to the claim,
except as provided in section 273(2), unless--
(a) the worker first refers the dispute for
conciliation by a Conciliation Officer in
15 accordance with Division 2 of Part 6; and
(b) the Conciliation Officer has issued a
certificate under section 273(1).
203 Assessment of impairment
(1) The worker must, at the request of the Authority
20 or self-insurer, attend an independent examination
to be conducted by a medical practitioner referred
to in section 54(1)(b) for the purposes of this
Division.
(2) The Authority or self-insurer must obtain
25 assessments in accordance with Division 4 of
Part 2 as to the degree of permanent impairment
resulting from any injury for which liability is
accepted or established for the purposes of--
(a) determining any entitlement of the worker to
30 compensation under Division 5; and
(b) determining the whole person impairment
under sections 328(1) and 335.
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(3) A determination of the degree of impairment must
take into account all impairments resulting from
the injuries entitling the worker to compensation
included in the claim for compensation under
5 Division 5.
(4) If the worker was not 18 years of age at the time
of the event or circumstance, the determination of
impairment resulting from the injury cannot be
made until the worker attains the age of 18 years.
10 204 Written statement of injuries
(1) If an independent examination has been requested
by the Authority or a self-insurer under
section 199(1), the Authority or self-insurer must
give the worker--
15 (a) a written statement of the injury or injuries to
be included in the assessments; and
(b) a statement of rights in a form approved by
the Authority for the purposes of this
Division.
20 (2) A worker must, within 60 days of receiving a
written statement under subsection (1)--
(a) make a Division 5 claim in respect of any
additional injuries that the worker believes
have arisen out of the same event or
25 circumstance; or
(b) advise the Authority or self-insurer that he or
she disputes the statement; or
(c) advise the Authority or self-insurer that he or
she accepts the written statement of the
30 injury or injuries.
(3) If, after receiving a written statement under
subsection (1) the worker makes a claim for
compensation under Division 5 in respect of any
additional injuries that the worker believes have
35 arisen out of the same event or circumstance--
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(a) the claim by the worker and the claim
initiated by the Authority or self-insurer are
to be considered as one consolidated claim;
and
5 (b) the consolidated claim is to be dealt with in
accordance with section 201.
(4) If the worker advises the Authority or self-insurer
that he or she disputes the written statement under
subsection (1), the worker must not commence
10 proceedings in relation to the claim, except as
provided in section 273(2), unless--
(a) the worker first refers the dispute for
conciliation by a Conciliation Officer in
accordance with Division 2 of Part 6; and
15 (b) the Conciliation Officer has issued a
certificate under section 273.
(5) If the worker does not make a claim or dispute the
statement within the period specified under
subsection (2), the injury or injuries specified in
20 the written statement are deemed to be the only
injury or injuries arising from the same event or
circumstance which are to be included in the
determination of impairment to be dealt with in
accordance with section 201.
25 205 Worker to advise Authority or self-insurer of
worker's acceptance or dispute of decision as to
liability under section 201(1)
(1) The worker must, within 60 days after being
advised under section 201(1) in respect of a
30 Division 5 claim made by the worker, advise the
Authority or self-insurer in writing whether the
worker accepts or disputes the decision as to
liability in respect of each of the injuries claimed.
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(2) If, under subsection (1), a worker disputes any
part of the decision as to liability, the worker does
not have to respond to any other part of the advice
under section 201(1).
5 (3) Subject to subsection (1), the worker must within
60 days of being advised under section 201(1)(f),
advise the Authority or self-insurer in writing--
(a) whether the worker accepts or disputes the
determinations of impairment and total loss;
10 and
(b) if the worker accepts the determinations of
impairment and total loss, whether the
worker accepts or disputes the entitlement to
compensation, if any.
15 206 Variation by court or by agreement of decision
under section 201(1)(a)
(1) If the decision made under section 201(1)(a) to
reject liability for an injury is varied as the result
of a decision of a court or an agreement between
20 the worker and the Authority or self-insurer, the
Authority or self-insurer must within 90 days of
the variation--
(a) obtain an assessment or assessments in
accordance with Division 4 of Part 2 as to
25 the degree of permanent impairment (if any)
of the worker resulting from the injury or
injuries in respect of which liability is
accepted or determined; and
(b) after taking into account the assessment or
30 assessments obtained under paragraph (a),
determine the degree of permanent
impairment (if any) of the worker for each of
the purposes of--
(i) Division 5; and
35 (ii) Division 2 of Part 7;
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(c) determine whether the worker has an injury
which is a total loss mentioned in the Table
in Schedule 4; and
(d) calculate any entitlement to compensation
5 under Division 5; and
(e) advise the worker as to--
(i) the decision or determination of
liability for each injury included in the
claim; and
10 (ii) each of the determinations as to the
degree of permanent impairment
(if any) of the worker and whether the
worker has an injury which is a total
loss mentioned in the Table in
15 Schedule 4 resulting from the injury or
injuries in respect of which liability is
accepted; and
(iii) the calculation of any entitlement to
compensation under Division 5; and
20 (f) provide to the worker a copy of--
(i) any medical reports, correspondence
and other documents provided to; and
(ii) any medical reports, correspondence
and other documents obtained from--
25 any medical practitioner referred to in
section 54(1)(b) conducting an independent
examination.
(2) The Authority or self-insurer is not bound by the
assessment or assessments obtained under
30 subsection (1)(a) in determining the degree of
permanent impairment (if any) under
subsection (1)(b).
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(3) The worker must within 60 days of being advised
under subsection (1) advise the Authority or self-
insurer in writing--
(a) whether the worker accepts or disputes the
5 determinations of impairment and total loss;
and
(b) if the worker accepts the determinations of
impairment and total loss, whether the
worker accepts or disputes the entitlement to
10 compensation, if any.
(4) Subject to section 347(1), the Authority or self-
insurer must, within 14 days of being advised by
the worker, either under subsection (3) or under
section 205(3), or at a later date, that the worker
15 accepts the determinations of impairment and total
loss and the entitlement to compensation--
(a) if the entitlement is under Division 5, except
section 221, make payments in accordance
with section 220; or
20 (b) if the entitlement is under section 221, pay
the amount specified for the total loss under
section 221.
207 Reference of dispute under section 205(3)(a) or
206(3)(a) to Medical Panel
25 (1) The Authority or self-insurer must, within 14 days
of being advised by the worker that the worker
disputes the determinations of impairment or total
loss in respect of the injury or injuries claimed,
refer the medical questions as to--
30 (a) the degree of impairment assessed in
accordance with Division 4 of Part 2
resulting from the injury or injuries claimed
for which liability is accepted or established;
and
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(b) whether the worker has an injury or injuries
claimed for which liability is accepted or
established which is a total loss mentioned in
the Table in Schedule 4--
5 to a Medical Panel for its opinion under
section 302.
(2) For the purposes of subsection (1), if a worker has
suffered an injury arising out of the same event or
circumstance resulting in both psychiatric
10 impairment and impairment other than psychiatric
impairment--
(a) the worker may--
(i) accept or dispute the determinations of
impairment of both psychiatric
15 impairment and impairment other than
psychiatric impairment; or
(ii) accept or dispute either the
determination of psychiatric
impairment or the determination of
20 impairment other than psychiatric
impairment but cannot accept only part
of the determination of impairment
other than psychiatric impairment; and
(b) the Authority or self-insurer must refer the
25 medical questions relating to the
determination or determinations disputed in
accordance with subsection (1).
(3) The Authority or self-insurer must, within 60 days
of obtaining the opinion of the Medical Panel
30 under section 302, advise the worker of the
opinion and the entitlement, if any, under
Division 5.
(4) The worker must, within 60 days of being advised
by the Authority or self-insurer of the entitlement
35 of the worker to compensation in accordance with
subsection (3), advise the Authority or self-insurer
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whether the worker accepts or disputes the
entitlement to compensation.
(5) Subject to section 347(1), the Authority or self-
insurer must, within 14 days of being advised by
5 the worker, either under subsection (4) or at a later
date, that the worker accepts the entitlement to
compensation--
(a) if the entitlement is under Division 5, except
section 221, make payments in accordance
10 with section 220; or
(b) if the entitlement is under section 221, pay
the amount specified for the total loss under
section 221.
208 No appeal from certain determinations and opinions
15 No appeal lies to any court or tribunal from a
determination or opinion--
(a) as to the degree of permanent impairment of
a worker resulting from an injury; or
(b) as to whether a worker has an injury which
20 is a total loss mentioned in the Table in
Schedule 4.
209 Minister may give directions
(1) For the purposes of this Division, the Minister
may give directions in accordance with
25 section 609 for or with respect to procedures for
the determination of Division 5 claims.
(2) Directions under subsection (1) may include
directions requiring that information in classes of
claims specified in the directions must be
30 provided by affidavit.
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Division 5--Compensation for non-economic loss
210 Definitions
(1) In this Division--
compensation law means this Act, the Accident
5 Compensation Act 1985 or the Workers
Compensation Act 1958 or a workers
compensation law of the Commonwealth or
another State or Territory of the
Commonwealth;
10 further injury means a further loss of hearing in
respect of industrial deafness after a worker
has on one or more occasions suffered a
prior injury;
prior hearing loss means a loss of hearing for
15 which a worker has received compensation
under a compensation law for loss of
hearing;
prior injury means industrial deafness for which
the worker has received or become entitled
20 to receive compensation for loss of hearing;
relevant date, in relation to the calculation of the
amount of non-economic loss under this
Division, means--
(a) if the worker's impairment benefit
25 rating is not more than 70 per cent, the
date of the relevant injury; or
(b) if the worker's impairment benefit
rating is more than 70 per cent, the date
on which the calculation is made;
30 spinal impairment means a whole person
impairment derived solely in accordance
with section 3.3 of Chapter 3 of the
A.M.A Guides, without inclusion of any
other impairment.
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(2) For the purposes of this Division, a worker's
impairment benefit rating is--
(a) if the worker's degree of impairment consists
of, or includes, a whole person impairment
5 assessed in accordance with Chapter 3 of the
A.M.A Guides and that whole person
impairment is not less than 5 per cent and not
more than 29 per cent--
(i) the modified whole person impairment
10 set out in column 2 of Schedule 3
opposite the relevant whole person
impairment as assessed in accordance
with Chapter 3 of the A.M.A Guides;
(ii) the modified whole person impairment
15 set out in column 2 of Schedule 3
opposite the relevant whole person
impairment as assessed in accordance
with Chapter 3 of the A.M.A Guides
for a spinal impairment;
20 (iii) if subparagraph (ii) does not apply, the
worker's degree of impairment as
assessed in accordance with Chapter 3
of the A.M.A Guides for a spinal
impairment;
25 (iv) the worker's degree of impairment--
whichever provides the worker with the
higher amount for non-economic loss under
section 211(2);
(b) in any other case, the worker's degree of
30 impairment.
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211 Compensation for non-economic loss--permanent
impairment
(1) A worker who suffers an injury which entitled the
worker to compensation is, in respect of an injury
5 resulting in permanent impairment as assessed in
accordance with Division 4 of Part 2, entitled to
compensation for non-economic loss calculated in
accordance with this Division.
(2) The amount of the non-economic loss in respect
10 of permanent impairment (other than psychiatric
impairment and industrial deafness in respect of a
further injury) is to be calculated as at the relevant
date as follows--
(a) if the worker's impairment benefit rating is
15 less than 10 per cent--the amount of the
non-economic loss is zero;
(b) if the worker's impairment benefit rating--
(i) is a modified whole person impairment
(within the meaning of section
20 210(2)(a)(i)) and is not less than 10 per
cent and less than 11 per cent--the
amount of the non-economic loss is to
be determined in accordance with the
formula--
25 $11 670 + [(D - 10) × $9940];
(ii) is a modified spinal impairment (within
the meaning of section 210(2)(a)(ii))
and is not less than 10 per cent and less
than 11 per cent--the amount of the
30 non-economic loss is to be determined
in accordance with the formula--
{$11 670 + [(D - 10) × $9940]} × 1·1;
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(c) if the worker's impairment benefit rating--
(i) is not less than 10 per cent and not
more than 30 per cent and
paragraph (b) does not apply to the
5 worker--the amount of the non-
economic loss is to be determined in
accordance with the formula--
$18 810 + [(D - 10) × $2830];
(ii) is a spinal impairment (within the
10 meaning of section 210(2)(a)(ii) or (iii))
and is not less than 10 per cent and less
than 30 per cent and paragraph (b) does
not apply to the worker--the amount of
the non-economic loss is--
15 (A) the amount determined in
accordance with the formula--
{$18 810 + [(D - 10) × $2830]} ×
1·1; or
(B) the amount determined in
20 accordance with the formula
$18 810 + [20 × $2830]--
whichever is the lesser;
(d) if the worker's impairment benefit rating is
more than 30 per cent and not more than
25 70 per cent--the amount of the non-
economic loss is to be determined in
accordance with the formula--
$75 260 + [(D - 30) × $4700];
(e) if the worker's impairment benefit rating is
30 more than 70 per cent and not more than
80 per cent--the amount of the non-
economic loss is--
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(i) the amount determined in accordance
with the formula--
$262 070 + [(D - 70) × $29 330]; or
(ii) $555 350--
5 whichever is the lesser;
(f) if the worker's impairment benefit rating is
more than 80 per cent--the amount of the
non-economic loss is $555 350--
where D is the worker's impairment benefit rating
10 expressed as a number.
212 Compensation for non-economic loss--permanent
psychiatric impairment
The amount of the non-economic loss in respect
of permanent psychiatric impairment as assessed
15 in accordance with Division 4 of Part 2 is to be
calculated as at the relevant date as follows--
(a) if the worker's degree of impairment is less
than 30 per cent--the amount of the non-
economic loss is zero;
20 (b) if the worker's degree of impairment is
30 per cent--the amount of the non-
economic loss is to be determined in
accordance with the formula--
$18 810 + [(D - 10) × $2830];
25 (c) if the worker's degree of impairment is more
than 30 per cent and not more than 70 per
cent--the amount of non-economic loss is
the amount determined in accordance with
the formula--
30 $75 260 + [(D - 30) × $4700];
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(d) if the worker's degree of impairment is more
than 70 per cent and not more than 80 per
cent--the amount of the non-economic loss
is--
5 (i) the amount determined in accordance
with the formula--
$262 070 + [(D - 70) × $29 330]; or
(ii) $555 530--
whichever is the lesser;
10 (e) if the worker's degree of impairment is more
than 80 per cent--the amount of the non-
economic loss is $555 530--
where D is the worker's degree of impairment
expressed as a number.
15 213 Compensation for non-economic loss--industrial
deafness in respect of further injury
(1) Despite section 211(1), the amount of non-
economic loss in respect of industrial deafness in
respect of a further injury is to be calculated as at
20 the relevant date as follows--
(a) if T is not less than 10 per cent and not more
than 30 per cent and P is less than 10 per
cent--the amount of the non-economic loss
is to be determined in accordance with the
25 formula--
[(T - 10) × $2830] + [(10 - P) × $1860];
(b) if T is not less than 10 per cent and not more
than 30 per cent and P is not less than 10 per
cent--the amount of the non-economic loss
30 is to be determined in accordance with the
formula--
[(T - P) × $2830];
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(c) if T is more than 30 per cent and P is less
than 10 per cent--the amount of the non-
economic loss is to be determined in
accordance with the formula--
5 [(T - 30) × $4700] + [(30 - 10) × $2830] +
[(10 - P) × $1860];
(d) if T is more than 30 per cent and P is not less
than 10 per cent and is less than 30 per
cent--the amount of the non-economic loss
10 is to be determined in accordance with the
formula--
[(T - 30) × $4700] + [(30 - P) × $2830];
(e) if T is more than 30 per cent and P is not less
than 30 per cent--the amount of the non-
15 economic loss is to be determined in
accordance with the formula--
[(T - P) × $4700]--
where--
T is the percentage referred to in section
20 61(2)(a) rounded up to the next whole
number, after that percentage has been
converted in accordance with
section 63(1);
P is the total percentage referred to in
25 section 61(2)(b) rounded up to the next
whole number, after that percentage has
been converted in accordance with
section 63(3).
(2) Compensation payable under this section for
30 industrial deafness is the amount of compensation
calculated--
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(a) if the date of injury is deemed under section
60(1) to be the last day of the worker's
employment out of which or in the course of
which the injury arose--as at that day; or
5 (b) if the date of injury is deemed under section
60(2) to be the date of the claim--as at the
day on which the compensation is
determined.
214 Compensation for non-economic loss---loss of
10 foetus
(1) The amount of the non-economic loss in respect
of an injury resulting in the loss of a foetus or of
the loss of more than one foetus is $67 660.
(2) For the purposes of subsection (1), foetus means
15 the conceptus beyond the sixteenth week of
development.
215 Injuries by gradual process other than industrial
deafness
(1) For the purposes of determining the worker's
20 entitlement to compensation under this Part,
subject to subsections (2) and (3), 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
25 last 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 out of
30 or in the course of the worker's employment.
(2) For the purposes of determining the worker's
entitlement to compensation under this Part,
subject to subsection (3), if a worker sustains an
injury, other than industrial deafness, that occurs
35 by way of gradual process over time and on the
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day on which the worker gives, serves or lodges a
claim for compensation in respect of the injury,
the worker is still--
(a) performing duties; or
5 (b) exposed to conditions--
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 (3) For the purposes of subsections (1) and (2), the
Minister may make guidelines in accordance with
section 611 specifying considerations and
circumstances to be considered in determining
whether subsection (1) or (2) applies in respect of
15 an injury that occurs by way of gradual process
over time.
216 Effect of payment of compensation under this
Division
If compensation for non-economic loss, calculated
20 in accordance with this Division, is paid to a
worker in respect of an impairment, loss of bodily
function, disfigurement, brain damage or total loss
resulting from an injury (other than industrial
deafness) that occurred--
25 (a) by way of gradual process over time due to
the nature of the employment in which the
worker was employed; or
(b) by way of gradual process over time and
arose out of, or in the course of, employment
30 in which the worker was employed--
the worker ceases to be entitled to compensation
under this Division, or section 98, 98C or 98E of
the Accident Compensation Act 1985 or
section 11 of the Workers Compensation Act
35 1958 in respect of any injury--
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(c) suffered by the worker before the
compensation was paid; and
(d) that materially contributed to the
impairment, loss of body function,
5 disfigurement, brain damage or total loss in
respect of which the compensation was paid.
217 Limits on compensation
(1) If a worker suffers on the same occasion more
than one injury which entitles the worker to
10 compensation under section 211(1), the worker is
not entitled to receive as compensation for non-
economic loss more than $555 350.
(2) If a worker suffers an injury which entitles the
worker to compensation for non-economic loss of
15 more than one kind as specified in section 211,
212 or 214, the worker is not entitled to receive as
compensation for non-economic loss under this
Division more than $555 350.
(3) If compensation has been paid for non-economic
20 loss in respect of a prior injury or prior hearing
loss, that prior injury or prior hearing loss must be
taken into account in accordance with Division 3
of Part 2 and this Division in determining the
amount of compensation payable under this
25 Division.
(4) If compensation has been paid--
(a) under this Division; or
(b) under section 98, 98A, 98C or 98E of the
Accident Compensation Act 1985--
30 in respect of an injury, the amount of that
compensation must be deducted from any
compensation payable under this Division in
respect of any impairment or total loss resulting
from an injury consisting of any recurrence,
35 aggravation, acceleration, exacerbation or
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deterioration of the injury in respect of which
compensation has been paid under this Division or
under section 98, 98A, 98C or 98E of the
Accident Compensation Act 1985.
5 218 Compensation not payable after death of worker
Compensation under this Division is not payable
after the death of the worker concerned.
219 Compensation not to exceed relevant maximum
Despite anything to the contrary in this Division, a
10 worker is not entitled to an amount of
compensation for non-economic loss under this
Division that exceeds the maximum amount
payable under section 217(2) as in force at the
relevant date.
15 220 Payment of compensation as lump sum
Compensation for non-economic loss calculated
under this Division is to be paid as a lump sum.
221 No Disadvantage--Compensation Table
(1) If--
20 (a) a worker suffers an injury which entitled the
worker to compensation; and
(b) the injury is a total loss mentioned in the
Table in Schedule 4; and
(c) the amount of compensation calculated under
25 the preceding provisions of this Division is
less than the amount payable for total loss
specified in the Table in respect of that
injury--
the worker is entitled to compensation equal to the
30 amount specified in the Table instead of
compensation calculated under the preceding
provisions of this Division.
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(2) For the purposes of this section, total loss of
hearing--
(a) must be determined--
(i) by a person or class of persons
5 approved; and
(ii) in the manner approved--
by the Minister; and
(b) must be determined in accordance with the
Improved Procedure for Determination of
10 Percentage Loss of Hearing (1988 Edition or
a later prescribed edition) published by the
National Acoustic Laboratory.
(3) An approval by the Minister for the purposes of
subsection (2)(a)(i) continues in force for the
15 period not exceeding 3 years as is specified by the
Minister in the approval unless revoked by the
Minister.
(4) If a worker suffers on the same occasion more
than one of the injuries mentioned in the Table in
20 Schedule 4, the worker is not entitled to receive as
compensation under subsection (1) more than
$273 640 in respect of the injuries suffered on that
occasion.
(5) The amount of compensation for an injury that is a
25 total loss mentioned in the Table in Schedule 4 is
to be calculated as at the date of the relevant
injury.
Division 6--Rehabilitation services prior to acceptance of
claim
30 222 Authority or self-insurer may pay for rehabilitation
service
(1) The Authority, employer or a self-insurer may pay
the reasonable costs of an occupational
rehabilitation service provided to a worker
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whether or not the entitlement of the worker to
compensation under this Act has been established.
(2) Where the Authority, employer or a self-insurer
agrees to pay amounts under this section it must
5 give the worker reasonable notice before
discontinuing payments in respect of the
occupational rehabilitation service.
Division 7--Compensation for medical and like services
223 Definitions
10 (1) In this Division--
family member of a worker, means a partner,
parent, sibling or child of the worker or of
the worker's partner;
parent of a worker includes a person who has day
15 to day care and control of the worker;
severe injury means any of the following--
(a) paraplegia;
(b) quadriplegia;
(c) amputation of a limb;
20 (d) amputation of a hand or foot;
(e) severe head injury;
(f) severe eye injury;
(g) separation of a worker's skin from an
underlying tissue (such as de-gloving or
25 scalping);
(h) severe burns;
(i) severe lacerations;
(j) severe injuries arising out of an electric
shock;
30 (k) any other work related injury giving
rise to an imminent risk of death;
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supported accommodation means--
(a) a residential facility in which
residential care is provided under the
Aged Care Act 1997 of the
5 Commonwealth; and
(b) a supported residential service within
the meaning of the Supported
Residential Services (Private
Proprietors) Act 2010; and
10 (c) a group home within the meaning of
section 3(1) of the Disability Act 2006;
and
(d) a group home or other residential
facility approved by the Authority for
15 the purposes of this section.
(2) In this Division--
reasonable costs, in relation to a service
(including modification of a car or a home),
burial or cremation means an amount--
20 (a) that is determined by the Authority,
employer or self-insurer as a reasonable
cost in relation to that service, burial or
cremation having regard to--
(i) the service or provision actually
25 rendered; and
(ii) the necessity of the service or
provision in the circumstances;
and
(iii) any guidelines made by the
30 Authority and published on its
website in respect of services or
provisions of that kind; and
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(b) that does not exceed the amount
(if any) specified in, or an amount
determined in accordance with a
method specified in, an Order of the
5 Governor in Council;
Order of the Governor in Council means an
Order made on the recommendation of the
Authority and published in the Government
Gazette specifying an amount, or an amount
10 determined in accordance with a method
specified in the Order as the maximum
amount of costs payable in respect of a
service (including modification of a car or a
home) or a burial or cremation, being a
15 maximum amount that is not less than the
amount of the fee specified in a Table within
the meaning of the Health Insurance Act
1973 of the Commonwealth applicable in
respect of a service of that kind provided in
20 Victoria.
(3) Guidelines made by the Authority for the purposes
of paragraph (a)(iii) of the definition of
reasonable costs in subsection (2) apply in
relation to the cost of a service, burial or
25 cremation provided or carried out after the making
of the guidelines, irrespective of the date of the
injury.
224 Liability of Authority and self-insurer
(1) If there is caused to a worker an injury which
30 entitles a worker to compensation, the Authority
or a self-insurer, and the employer in respect of
the employer's excess under section 72(1)(c), is
liable, unless a determination of the Authority or
an order of the court under Division 6 of Part 13
35 applies, to pay as compensation, in addition to any
other compensation payable under this Act--
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(a) the reasonable costs of the road accident
rescue services, medical, hospital, nursing,
personal and household, occupational
rehabilitation and ambulance services
5 received because of the injury; and
(b) if the injury is a severe injury for which
immediate inpatient treatment in a hospital is
received or where death results from the
injury, the reasonable costs incurred in
10 Australia of family counselling services
provided to family members by--
(i) a medical practitioner; or
(ii) a registered psychologist; or
(iii) a social worker approved by the
15 Authority to provide counselling
services for the purposes of this
section--
not exceeding $5870 in respect of that severe
injury or death; and
20 (c) if death results from the injury, the
reasonable costs of burial or cremation.
(2) The Authority may make guidelines identifying
services, or services of a class of services, referred
to in subsection (1)(a) or (b) for which approval
25 should be sought from the Authority or self-
insurer before the services are provided.
(3) The Authority must ensure that guidelines made
under subsection (2) are published and are
generally available.
30 (4) A worker is entitled to receive a service referred
to in subsection (1) (other than an occupational
rehabilitation service) from the provider of the
worker's choice notwithstanding that an employer
or the Authority or a self-insurer, as the case may
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be, offers or provides a service to the worker for
the worker's use.
225 Where services provided by employer
(1) If a worker receives services from an employer
5 who has made adequate arrangements to provide
workers in the employer's employment with
gratuitous medical, hospital, nursing, ambulance,
personal and household or occupational
rehabilitation services, the employer is, to the
10 extent of the value of the services, deemed to have
discharged any liability of the employer under
section 72(1)(c).
(2) If the employer is not a self-insurer and the value
of the services provided under subsection (1)
15 exceeds $642, the employer may claim the
amount by which the value of the services exceeds
$642 from the Authority.
226 To whom compensation under this Division is to be
paid
20 (1) A payment of compensation under this Division
must be made to the person lawfully entitled to the
payment.
(2) If the liability to the person lawfully entitled to
payment of the costs specified in this Division has
25 already been discharged in whole or in part by a
payment by the worker or any other person
whether legally liable to make the payment or not,
the amount by which the liability has been so
discharged must be paid to the worker or other
30 person who made the payment.
(3) If a worker or a worker's dependants is or are
entitled to any of the services (including burial or
cremation) specified in this Division free of
charge or at a reduced rate or charge because the
35 worker--
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(a) entered into any prior contract, agreement or
arrangement; or
(b) was a contributor or subscriber to any
institution, fund or scheme--
5 the payment in respect of those services must not
be reduced but, after payment of the amount, if
any, actually owing to the person lawfully entitled
to payment, the balance of the reasonable cost
must be paid to the worker or the worker's
10 dependants.
(4) The payment of the whole of the reasonable costs
of any service, burial or cremation specified in
this Division wholly and finally discharges the
worker or the worker's dependants and any other
15 person from all liability whatsoever in respect of
those costs.
227 Certain actions etc. not permitted
(1) An action, suit or other proceeding against a
worker or the legal personal representative of a
20 worker or a dependant of a worker for the
payment or recovery of any costs which the
Authority, a self-insurer or an employer is
liable to pay under this Division or to which a
determination of the Authority under Division 6 of
25 Part 13 applies must not be entertained by any
court.
(2) Subsection (1) does not apply in relation to a
worker or a worker's legal personal representative
or dependant in respect of the payment or
30 recovery of costs of professional services
provided by a person after the worker,
representative or dependant has been informed in
writing by the Authority or self-insurer that a
determination against that person has been made
35 under Division 6 of Part 13.
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228 Medical and like services outside Australia
(1) Notwithstanding anything to the contrary in this
Division, unless subsection (3) or (4) applies, the
Authority, employer or self-insurer is not liable to
5 pay as compensation the costs of any service,
burial or cremation specified in section 224(1)
which is provided or carried out outside Australia,
unless the worker or claimant obtained the
approval of the Authority, employer or self-
10 insurer before the service, burial or cremation was
provided or carried out.
(2) In determining whether to approve the provision
or carrying out of a service, burial or cremation
for the purposes of subsection (1), the Authority,
15 employer or self-insurer must have regard to the
matters specified in the definition of reasonable
costs in section 223(2) and to section 232.
(3) Subsection (1) does not apply if the worker or
claimant satisfies the Authority, employer or self-
20 insurer that, because of an emergency situation--
(a) it was necessary to immediately provide or
carry out a service, burial or cremation to
which section 224(1) applies; and
(b) it was not reasonably practicable to first
25 obtain approval.
(4) In the case of a worker who resides outside
Australia, the Authority, employer or self-insurer
may, for the purposes of subsection (1), give a
general approval specifying a class or classes of
30 services, burials or cremations.
(5) The requirement imposed by subsection (1) is in
addition to any other relevant requirements under
this Division.
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229 Compensation not payable for certain
accommodation etc.
(1) Nothing in this Division renders the Authority, a
self-insurer or the employer liable to pay as
5 compensation the cost of the provision to, or for, a
worker of any of the following things, unless the
provision of a particular thing to the worker is a
medical service, or a hospital service, provided as
a result of the injury--
10 (a) accommodation (including accommodation-
related costs such as rent, bonds, rates,
accommodation costs levied in accordance
with Commonwealth legislation, capital
contributions and costs associated with the
15 buying or selling of property, but not
including contributions or costs for
which the Authority or self-insurer is liable
under section 231(5));
(b) food or household or personal items;
20 (c) power, water or any other service provided
by a utility;
(d) room temperature controls;
(e) any other thing specified by the regulations
for the purposes of this subsection.
25 (2) Subsection (1) does not apply in the case of a
person who--
(a) is under 18 years of age and, as a result of
his or her injury, is unable to reside at the
place at which he or she resided before the
30 injury; or
(b) is receiving respite care as a result of his or
her injury; or
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(c) receives a hospital service as a result of his
or her injury and, after being discharged
from hospital for the first time after suffering
the injury, resides in supported
5 accommodation but only while so residing
during the first 18 months after being so
discharged.
(3) If, during the period of 18 months referred to in
subsection (2), the person receives a hospital
10 service or hospital services, a reference in that
subsection to 18 months has effect, in relation to
that person, as a reference to that period as
extended by the period, or periods, during which
the person receives the hospital service or hospital
15 services.
(4) The contribution to be made by a worker towards
the cost of supported accommodation referred to
in paragraph (b) or (d) of the definition of
supported accommodation in section 223 must
20 not exceed $32.50 per day.
(5) The Governor in Council may, on the
recommendation of the Authority, by Order
published in the Government Gazette, declare that
section 545 does not apply to an amount referred
25 to in subsection (4) of this section in respect of a
specified financial year.
230 Occupational rehabilitation services
(1) A worker is entitled to receive occupational
rehabilitation services referred to in this
30 Division--
(a) from a provider of an occupational
rehabilitation service chosen by the worker
from a list of at least 3 approved providers
given to the worker by the Authority,
35 employer or self-insurer, having regard, as
far as possible to--
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(i) the type of injury the worker has
suffered; and
(ii) the type of occupational rehabilitation
service required; and
5 (iii) where the worker resides; and
(iv) where the provider is requested by the
Authority, self-insurer or employer to
provide the services; or
(b) if the Authority, employer or self-insurer
10 does not give the worker a list of approved
providers in accordance with paragraph (a),
from an approved provider of the worker's
choice.
(2) For the purposes of subsection (1)(a), if there are
15 not 3 approved providers available to provide a
particular occupational rehabilitation service, it is
sufficient compliance with subsection (1)(a) if the
list contains the names of the available approved
provider or providers of that occupational
20 rehabilitation service.
(3) If--
(a) the Authority, employer or self-insurer offers
occupational rehabilitation services from
approved providers of occupational
25 rehabilitation services to be chosen by the
worker from a list of approved providers;
and
(b) the worker does not choose an approved
provider of those occupational rehabilitation
30 services within 14 days of the offer of
occupational rehabilitation services--
the occupational rehabilitation services will be
offered or provided to the worker by an approved
provider chosen by the Authority, employer or
35 self-insurer, having regard to subsection (1)(a).
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(4) In this section, approved provider, in relation to
an occupational rehabilitation service, means a
person approved by the Authority as a provider of
the occupational rehabilitation service.
5 231 Modification of cars and homes
(1) Unless the Authority or a self-insurer otherwise
determines, the Authority or self-insurer is not
liable to pay the reasonable costs, or contribute a
reasonable amount, referred to in subsection (2),
10 (3) or (5) unless the Authority or self-insurer
approved the worker's requirement, and its costs,
before the costs were incurred.
(2) If a worker, as a result of his or her injury,
reasonably requires a car used by him or her in
15 Australia to be modified, the Authority or self-
insurer is liable--
(a) to pay the reasonable costs of modifying the
car; or
(b) if the car is not capable of being modified, to
20 contribute a reasonable amount to the
purchase cost of a suitably modified car
selected by the Authority or self-insurer.
(3) If a worker, as a result of his or her injury,
reasonably requires access to a car, and he or she
25 does not have access to a car, the Authority or
self-insurer is liable to contribute a reasonable
amount to the purchase cost of a suitable car
selected by the Authority or self-insurer.
(4) Without limiting the factors the Authority or self-
30 insurer may consider in determining what is a
reasonable amount for the purposes of subsections
(2)(b) and (3), the Authority or self-insurer must
have regard to the following factors so far as they
are applicable--
35 (a) the current market value of the car used by
the worker at the time of the injury;
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(b) if that car is no longer used by the worker,
the market value of the car at the time of the
injury;
(c) how often the worker was using a car at the
5 time of the injury;
(d) how often the worker will, or is likely to, use
a car in future;
(e) the market value of any other car that the
worker uses.
10 (5) If a worker, as a result of his or her injury,
reasonably requires that a home in which he or she
resides in Australia be modified, the Authority or
self-insurer is liable--
(a) to pay the reasonable costs of modifying the
15 home; or
(b) if for any reason the home cannot be
reasonably modified, to contribute a
reasonable amount--
(i) to the purchase cost of a semi-
20 detachable portable unit; or
(ii) to the cost of relocating the worker to
another home that is suitable for the
worker or that is capable of being
reasonably modified.
25 (6) Without limiting the factors the Authority or self-
insurer may consider in determining the
reasonable costs or amount for the purposes of
subsection (5), the Authority or self-insurer must
have regard to the following factors--
30 (a) whether the home in which the worker
resides is structurally suitable for
modification;
(b) the nature of the worker's injuries;
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(c) how those injuries restrict, or are likely to
restrict, the worker's ability--
(i) to enter and leave the home in which
the worker resides; and
5 (ii) to move about the home for necessary
purposes;
(d) the extent of the modifications that will be
needed to address those restrictions or likely
restrictions;
10 (e) any complex, unique or unusual
circumstances associated with those
modifications;
(f) whether the cost of those modifications is
likely to exceed the value of the home in
15 which the worker resides.
(7) If a worker moves from a home that has
modifications to which the Authority or self-
insurer made a contribution, in assessing whether
to make a payment in respect of modifications to
20 the worker's new home, the Authority or self-
insurer must have regard to the appropriateness of
that home for modification, having regard to all
relevant circumstances, with respect to the
modifications that are needed.
25 (8) The Authority or self-insurer must not make a
payment or contribution under subsection (2), (3)
or (5) which exceeds $10 000 or a greater amount
as may be prescribed, unless the worker enters
into an agreement with the Authority or self-
30 insurer in relation to the ownership of, and
maintenance of modifications to, the car, home or
semi-detachable portable unit.
(9) Without limiting what may be included in an
agreement under subsection (8), the agreement
35 must include provisions in respect of--
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(a) subsequent modifications; and
(b) changes of ownership; and
(c) the frequency of modifications and changes
of ownership.
5 232 Duration of compensation under this Division
(1) Subject to subsection (4), if weekly payments are
payable, compensation under this Division ceases
52 weeks after the entitlement to weekly payments
ceases, unless subsection (5) applies.
10 (2) Subject to subsection (4), if compensation is
payable only under this Division, compensation
under this Division ceases 52 weeks after the
entitlement arises, unless subsection (5) applies.
(3) Before compensation under subsection (1) or (2)
15 ceases, the Authority or self-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; and
20 (ii) the date when the entitlement will
cease.
(4) If a worker--
(a) receives a settlement or award of pecuniary
loss damages within the meaning of
25 section 325 of this Act or section 93 of the
Transport Accident Act 1986; or
(b) accepts a voluntary settlement of weekly
payments under Division 9 in respect of an
injury--
30 the worker is entitled, subject to this Act, to
continue to receive compensation under this
Division.
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(5) Compensation under this Division does not cease
if--
(a) the worker has returned to work but--
(i) could not remain at work if a service
5 under this Division was not provided;
or
(ii) surgery is required for the worker; or
(b) the worker requires modification of a
prosthesis; or
10 (c) a service referred to in section 224 is
essential to ensuring that the worker's health
or ability to undertake the necessary
activities of daily living does not
significantly deteriorate.
15 233 Termination of payment for professional services
obtained fraudulently
(1) If the Authority or a self-insurer determines that
payment for professional services was obtained by
a worker fraudulently, the Authority or self-
20 insurer may terminate payment of those
professional services by giving to the worker,
within 7 days after the determination is made,
written notice stating--
(a) the date on which; and
25 (b) the grounds on which--
the determination was made.
(2) The termination of payment of professional
services under subsection (1) takes effect from the
date of the determination.
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Division 8--Compensation for death of worker
234 Definitions
(1) In this Division--
child means a person who--
5 (a) is under the age of 16 years; or
(b) is 16 years or more but under the age of
25 years and is a full-time student or
full-time apprentice;
corresponding law means an Act of another State
10 or Territory in relation to the status of a child
who is born after the 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
15 from the gametes, of the deceased person;
dependent child means a child who is a dependant
of the worker and includes--
(a) an orphan child; and
(b) a child born after the death of the
20 worker where the deceased worker is
that child's parent because of the Status
of Children Act 1974 or a
corresponding law;
dependent partner means a partner who is, or
25 would be, but for the incapacity of the
worker due to injury, wholly or mainly
dependent on the worker's earnings;
orphan child means a child--
(a) who is a child of the worker and whose
30 other parent--
(i) was dead before the death of the
worker; or
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(ii) was not, at the time of the death of
the worker, a dependent partner of
the worker and did not at that time
wholly, mainly or in part provide
5 economic support for the child; or
(b) who is not a child of the worker and--
(i) whose parents were both dead
before the worker died; or
(ii) neither of whose parents, at the
10 time of the death of the worker,
wholly, mainly or in part provided
economic support for the child
and neither of whom was at that
time a dependent partner of the
15 worker;
partially dependent partner means a partner who
is, or would be, but for the incapacity of the
worker due to injury, to any extent
dependent on the worker's earnings.
20 (2) In determining, for the purposes of this Division,
whether a partner was a dependent partner at the
time of the death of the worker or other relevant
time, regard must not be had to--
(a) any money which the partner had earned or
25 was earning by his or her own personal
exertion; or
(b) any savings arising from any such earnings.
(3) For the purposes of this Division, a partner who
resided with the worker at the time of the worker's
30 death is deemed to have been dependent on the
earnings of the worker at the time of the worker's
death.
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235 How compensation for death of worker determined
If a worker's death results from, or is materially
contributed to by, an injury which entitles the
worker's dependants to compensation, the amount
5 of compensation must be determined in
accordance with this section and sections 234,
236, 237 and 239--
(a) if a dependant does not have legal
representation, or is a minor or a person
10 under a disability, by the court; or
(b) in all other cases, by the Authority or self-
insurer.
236 Dependants
(1) If the worker leaves a dependent partner, or
15 dependent partners, and no dependent child, the
amount of compensation is $555 350--
(a) payable to the dependent partner; or
(b) if there is more than one dependent partner,
payable in equal shares to each of the
20 dependent partners.
(2) If the worker leaves no dependent partner and no
dependent children other than an orphan child or
orphan children, the amount of compensation is
$555 350--
25 (a) payable to that orphan child; or
(b) if there are 2 or more orphan children,
payable in equal shares to each of those
children.
(3) If the worker leaves a dependent partner, or
30 dependent partners, and one, and only one,
dependent child, the amount of compensation is
$555 350 of which--
(a) $55 530 is payable to the dependent child;
and
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(b) the balance--
(i) is payable to the dependent partner; or
(ii) if there is more than one dependent
partner, is payable in equal shares to
5 each of the dependent partners.
(4) If the worker leaves a dependent partner, or
dependent partners, and more than one and not
more than 5 dependent children, the amount of
compensation is $555 350 of which--
10 (a) $27 770 is payable to each dependent child;
and
(b) the balance--
(i) is payable to the dependent partner; or
(ii) if there is more than one dependent
15 partner, is payable in equal shares to
each of the dependent partners.
(5) If the worker leaves a dependent partner, or
dependent partners, and more than 5 dependent
children, the amount of compensation is $553 350
20 of which--
(a) $416 520 is payable--
(i) to the dependent partner; or
(ii) if there is more than one dependent
partner, in equal shares to each of the
25 dependent partners; and
(b) the balance is payable to each of the
dependent children in equal shares.
(6) If the worker does not leave a dependent partner
but leaves--
30 (a) a dependent child (not being an orphan
child); or
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(b) a dependent child (not being an orphan child)
and any other dependent children (including
any other orphan children)--
that dependent child is, or if more than one, each
5 of those dependent children are, entitled to the
amount of compensation being such share of a
sum not exceeding $555 350 which the court, the
Authority or self-insurer considers is reasonable
and appropriate to the injury to the dependent
10 child or, if more than one dependent child, to
those dependent children.
237 Dependent children and partners and partially
dependent partner
(1) If the worker leaves--
15 (a) one or more partially dependent partners; or
(b) one or more partially dependent partners and
one or more dependants, whether dependent
children or dependent partners--
each partially dependent partner, each dependent
20 child and each dependent partner is entitled to the
amount of compensation, being such share of a
sum not exceeding $555 350 which the court, the
Authority or self-insurer considers is reasonable
and appropriate to the injury to that dependant.
25 (2) If the worker does not leave any dependent
partner, dependent child or partially dependent
partner but leaves any other person who is to any
extent dependent on the worker's earnings, the
amount of compensation is a sum not exceeding
30 $555 350 which the court, Authority or self-
insurer considers is reasonable and appropriate to
the injury to that person or, if more than one, to
those persons in such shares as the court, the
Authority, or self-insurer determines.
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(3) If the worker, being under the age of 21 years at
the time of the injury, leaves no dependent
partner, dependent child or partially dependent
partner but, immediately before the injury, was
5 contributing to the maintenance of the home of the
members of the worker's family, the members of
the worker's family are deemed to have been
partly dependent on the worker's earnings at the
time of the worker's death.
10 238 Certain compensation payable to trustee
If, under section 235, 236, 237 or 239,
compensation is payable to a minor or a person
under a disability, the compensation must be paid
to a trustee for the minor or person under a
15 disability appointed by the court to be invested,
applied or otherwise dealt with for the benefit of
the minor or person under a disability as the
trustee thinks fit.
239 Interest payable [s. 92A(12)]
20 A claimant is entitled to interest at the prescribed
rate on an amount of compensation determined in
accordance with the preceding provisions of this
Division--
(a) in the case of a determination by the court, in
25 respect of the period beginning on the date
the claim for compensation was lodged in
accordance with section 20 and ending on
the date of the determination; or
(b) in the case of a determination by the
30 Authority or self-insurer, in respect of the
period beginning on the date the claim
was lodged in accordance with section 20
and ending on the date the Authority or self-
insurer makes the determination.
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240 Reimbursement of expenses incurred by non-
dependent family members of a deceased worker
(1) If--
(a) a worker's death results from, or is materially
5 contributed to by, an injury arising out of or
in the course of employment; and
(b) had the worker had a dependant, or
dependants, at the time of his or her death,
the injury would have entitled that dependant
10 or those dependants to compensation under
this Act; and
(c) the worker did not have any dependants at
the time of his or her death--
a member of the worker's family may apply to the
15 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.
(2) An application under this section must--
20 (a) specify the expenses of the applicant
incurred as a result of the death of the worker
and how the incurring of those expenses
caused financial hardship to the applicant;
and
25 (b) unless subsection (3) applies, be made within
2 years after the date of the worker's death.
(3) 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
30 within time.
(4) On application under this section, the Magistrates'
Court may, in its discretion, order that the
Authority or a self-insurer reimburse an applicant
for expenses not exceeding the maximum amount
35 if the Magistrates' Court is satisfied that--
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(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
5 (c) the incurring of the expenses caused
financial hardship to the applicant.
(5) In making an order under this section, the
Magistrates' Court may order that more than one
applicant in respect of a deceased worker be
10 reimbursed by the Authority or self-insurer under
this section.
(6) The total amount that can be ordered under this
section to be reimbursed in respect of the
deceased worker must not exceed the maximum
15 amount regardless of how many applicants apply
in respect of that deceased worker.
(7) The Magistrates' Court must not award any
interest in making an order for reimbursement of
an applicant under this section.
20 (8) A reimbursement of expenses under this section is
not a payment of compensation under this Act
except for the purposes of--
(a) calculating premiums under Part 10; or
(b) seeking indemnity from a third party under
25 section 369 or any other indemnity under this
Act; or
(c) seeking a refund of payments under
section 599 or any other amount relating to
the recovery of payments under this Act.
30 (9) In this section--
expenses does not include the following--
(a) the cost of any service or contribution
that may be claimed under Division 7;
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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 deceased worker's will,
5 or the distribution of the deceased
worker's estate;
(c) an expense incurred as a result of the
loss of a service provided to a member
of the deceased worker's family;
10 maximum amount means an amount of $33 120
in total for expenses incurred as a result of a
worker's death.
241 Weekly pensions for dependants of worker who dies
(1) In addition to compensation under section 236
15 or 237, compensation in the form of weekly
payments of pension is payable subject to and in
accordance with this section.
(2) If the worker leaves one, and only one, dependent
partner, the partner is entitled to a weekly pension
20 at the rate of--
(a) during the first 13 weeks after death--
(i) 95 per cent of the worker's pre-injury
average weekly earnings; or
(ii) twice the State average weekly
25 earnings--
whichever is the lesser; and
(b) from the end of the first 13 weeks after the
death until the end of 3 years after the
death--
30 (i) unless subparagraph (ii) or (iii) applies,
50 per cent of the worker's pre-injury
average weekly earnings or twice the
State average weekly earnings,
whichever is the lesser; or
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(ii) if the worker leaves not more than
5 dependent children who are entitled
to a pension under this section and
subsection (10) applies, an amount
5 calculated in accordance with the
formula--
twice the State average × 50
weekly earnings 50 + 5N
where N is the number of dependent
children so entitled; or
(iii) if the worker leaves more than
10 5 dependent children who are entitled
to a pension under this section and
subsection (10) applies, two thirds of
twice the State average weekly
earnings.
15 (3) If the worker leaves 2 or more dependent partners,
each partner is entitled to a weekly pension at the
rate of an equal share of--
(a) during the first 13 weeks after death--
(i) 95 per cent of the worker's pre-injury
20 average weekly earnings; or
(ii) twice the State average weekly
earnings--
whichever is the lesser; and
(b) from the end of the first 13 weeks after the
25 death until the end of 3 years after the
death--
(i) unless subparagraph (ii) or (iii) applies,
50 per cent of the worker's pre-injury
average weekly earnings or twice the
30 State average weekly earnings,
whichever is the lesser; or
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(ii) if the worker leaves not more than
5 dependent children who are entitled
to a pension under this section and
subsection (10) applies, an amount
5 calculated in accordance with the
formula--
twice the State average × 50
weekly earnings 50 + 5N
where N is the number of dependent
children so entitled; or
(iii) if the worker leaves more than
10 5 dependent children who are entitled
to a pension under this section and
subsection (10) applies, two thirds of
twice the State average weekly
earnings.
15 (4) If the worker leaves no dependent child other than
one, and only one, orphan child, the orphan child
is entitled, subject to this section, to a weekly
pension at the rate of--
(a) during the first 13 weeks after the death or
20 until the orphan child ceases to be eligible,
whichever first occurs--
(i) 95 per cent of the worker's pre-injury
average weekly earnings; or
(ii) twice the State average weekly
25 earnings--
whichever is the lesser; and
(b) if still eligible, from the end of the first
13 weeks after the death until the orphan
child ceases to be eligible--
30 (i) 50 per cent of the worker's pre-injury
average weekly earnings; or
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(ii) twice the State average weekly
earnings--
whichever is the lesser.
(5) If the worker leaves no dependent children other
5 than 2 or more orphan children, each such child is
entitled, subject to this section, to a weekly
pension at the rate of an equal share of--
(a) during the first 13 weeks after the death or
until the orphan child ceases to be eligible,
10 whichever first occurs--
(i) 95 per cent of the worker's pre-injury
average weekly earnings; or
(ii) twice the State average weekly
earnings--
15 whichever is the lesser; and
(b) if still eligible, from the end of the first
13 weeks after the death until the orphan
child ceases to be eligible--
(i) 50 per cent of the worker's pre-injury
20 average weekly earnings; or
(ii) twice the State average weekly
earnings--
whichever is the lesser.
(6) If the worker leaves not more than 5 dependent
25 children, each such child is entitled, from the end
of the first 13 weeks after the death until the child
ceases to be eligible, to a weekly pension at the
rate of--
(a) unless subsection (10) applies, 5 per cent of
30 the worker's pre-injury average weekly
earnings; or
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(b) if subsection (10) applies, an amount
calculated in accordance with the formula--
twice the State average × 5
weekly earnings 50 + 5N
where N is the number of dependent children
so entitled.
5 (7) If a worker leaves more than 5 dependent
children, each such child is entitled, from the end
of the first 13 weeks after the death until the child
ceases to be eligible, to a weekly pension at the
rate of an equal share of--
10 (a) unless subsection (10) applies, 25 per cent of
the worker's pre-injury average weekly
earnings; or
(b) if subsection (10) applies, one third of twice
the State average weekly earnings.
15 (8) A child ceases to be eligible under this 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 occurs first--
20 (i) on ceasing to be a full-time student or
full-time apprentice; or
(ii) the child attains the age of 25 years.
(9) For the purposes of subsection (8)(b)--
(a) a child does not cease to be a full-time
25 student or a full-time apprentice if that child
ceases to be a student in order to become an
apprentice;
(b) a child does not cease to be a full-time
student or a full-time apprentice if that child
30 ceases to be an apprentice in order to become
a student;
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(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
5 in which the child attains the age of 25.
(10) The total amount of weekly pensions payable to
the dependent partner, dependent partners and the
dependent child or dependent children, of a
worker under--
10 (a) subsections (2)(b) and (6) or (7); or
(b) subsections (3)(b) and (6) or (7)--
must not exceed twice the State average weekly
earnings.
242 Payment of weekly pensions
15 (1) A weekly pension under section 241 must be paid
by fortnightly, monthly, quarterly or annual
instalments in accordance with this section, as the
Authority, employer or self-insurer determines.
(2) The first payment of amounts due as weekly
20 pension must be made within 14 days after the
amount is determined.
(3) Subsequent amounts are payable--
(a) on the 1st and 15th days of each month; or
(b) on the 1st day of each month; or
25 (c) on 1 January, 1 April, 1 July and
1 September in each year; or
(d) on 1 July in each year--
as the case requires, and must be paid within
7 days.
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(4) A weekly pension to which a child under the age
of 18 is entitled is payable to--
(a) the parent of the child who has custody of
the child; or
5 (b) if there is no such person, the child's
guardian; or
(c) if there is no person referred to in
paragraph (a) or (b), the person who has day
to day care and control of the child and with
10 whom the child is ordinarily resident.
(5) The liability to the person entitled to a weekly
pension is not satisfied until the person receives
the amount.
(6) If the Authority, employer or self-insurer fails to
15 make a payment before the end of the period
within which it is required by this section to be
paid, the Authority, employer or self-insurer must
make the payment together with interest
calculated at the prescribed rate in respect of the
20 period beginning when the payment was first
payable and ending on the day before the payment
was made.
243 Provisional payments
(1) Subject to subsection (7), if it appears to the
25 Authority or self-insurer that a person may be
entitled to compensation in respect of the death of
the worker, the Authority or self-insurer may
make provisional payments to the person as
follows--
30 (a) weekly pension that may be payable under
section 241(2)(a) for a period of up to
12 weeks from the date of death of the
worker;
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(b) medical and other costs that may be payable
under section 224(1)(a) up to a maximum
of $8270;
(c) family counselling services costs that may be
5 payable under section 224(1)(b) up to the
maximum prescribed in that section;
(d) the costs of the deceased worker's burial or
cremation that may be payable under section
224(1)(c) up to the maximum amount
10 determined as reasonable costs by the
Authority under section 223(2).
(2) Except as provided by subsection (3)--
(a) a provisional payment made under a
paragraph in subsection (1) may be paid to
15 more than one person; and
(b) the total paid in respect of a deceased worker
must not exceed the maximum set out in the
relevant paragraph under that subsection
regardless of how many persons receive
20 provisional payments.
(3) Only one partner of a deceased worker may
receive provisional payments under
subsection (1)(a).
(4) A provisional payment made under this section is
25 not a payment of compensation under this Act
except for the purposes of--
(a) calculating employer premiums; or
(b) the reduction of common law damages under
section 366(7)(a); or
30 (c) seeking indemnity from a third party under
section 369 or any other indemnity under this
Act; or
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(d) seeking a refund of payments under
section 599 or any other amount relating to
the recovery of payments under this Act.
(5) A decision made by the Authority or self-insurer
5 to make provisional payments under this section is
not an admission of liability to pay compensation
under this Act.
(6) If liability to pay compensation in respect of the
death of a worker is accepted, or determined by a
10 court to be payable, after a provisional payment
has been made to a person--
(a) under subsection (1)(a), any liability the
Authority or self-insurer has to the person to
whom the payment was made under section
15 241(2)(a) is discharged to the extent of that
payment; or
(b) under subsection (1)(b), any liability the
Authority or self-insurer has under section
224(1)(a) is discharged to the extent of that
20 payment; or
(c) under subsection (1)(c), any liability the
Authority or self-insurer has under section
224(1)(b) is discharged to the extent of that
payment; or
25 (d) under subsection (1)(d), any liability the
Authority or self-insurer has under section
224(1)(c) is discharged to the extent of that
payment.
(7) The Authority or self-insurer must not make
30 provisional payments to a person under this
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
35 materially contributed to by a heart attack
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injury, disease or a 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 of that injury
10 before the worker's death;
(b) the worker committed suicide;
(c) if the provisional payment would have to be
made to a court-appointed guardian because
the person is a minor or person under a
15 disability.
(8) The Authority may make guidelines for the
purposes of this section relating to the process to
be observed by the Authority or self-insurer when
acting under this section.
20 (9) The Authority must ensure that guidelines made
under subsection (8) are published and are
generally available.
(10) Proceedings must not be brought in respect of any
question or matter arising out of a decision of the
25 Authority or self-insurer under this section.
Division 9--Voluntary settlements
Subdivision 1--Settlements in specific circumstances
244 To whom this Subdivision applies
This Subdivision applies to a worker who--
30 (a) is receiving, or is entitled to receive,
compensation under this Act (other than
Division 7 of this Part) with respect to an
injury; and
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(b) is over the age of 55 years; and
(c) has no current work capacity and is likely to
continue indefinitely to have no current work
capacity; and
5 (d) has been receiving weekly payments for at
least 130 weeks.
245 Right to apply for settlement
(1) A worker to whom this Subdivision applies may
apply for the settlement of his or her entitlement
10 under this Act (other than Division 7 of this Part)
with respect to the injury.
(2) The application must be made in accordance with
Subdivision 3.
246 Amount of settlement
15 (1) The amount of the settlement is the amount
resulting from applying the following formula--
A×B
where--
A is--
20 (a) if a declaration under subsection (2) is
not in effect, the amount of the weekly
payment to which the worker is, or, but
for the operation of section 172(2),
would be, entitled as at the notification
25 date less the amount that must be
withheld from that payment for the
purposes of the Pay as you go system
under Schedule 1 to the Taxation
Administration Act 1953 of the
30 Commonwealth; or
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(b) if a declaration under subsection (2) is
in effect, the amount of the weekly
payment to which the worker is, or, but
for the operation of section 172(2),
5 would be, entitled as at the notification
date;
B is the number in Column 2 of Schedule 5
opposite the number in Column 1 of that
Schedule corresponding to the worker's age
10 in years on his or her birthday next
following--
(a) if the worker is not receiving payments
as a result of the operation of section
172(2), the day after the specified
15 period defined in section 172(3)
expires; or
(b) in any other case, the notification date.
(2) The Minister may, by Order published in the
Government Gazette, declare that the meaning of
20 "A" in the formula set out in subsection (1) is the
meaning set out in paragraph (b) of the definition
of A.
Note
The purpose of this provision is to enable the Minister to
25 respond to possible policy changes in relation to the taxation
of settlement payments by the Commonwealth Government.
(3) A declaration takes effect on the day after the
Order is published, or on any later day specified in
the Order.
30 (4) In this section notification date means the day on
which the Authority or self-insurer receives an
expression of interest from the worker under
section 251.
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Subdivision 2--Other settlements
247 Application of this Subdivision
This Subdivision applies to a worker if--
(a) the worker is receiving, or is entitled to
5 receive, compensation under this Act (other
than Division 7 of this Part) with respect to
an injury; and
(b) the regulations state that the worker may
apply for the settlement of his or her
10 entitlement under this Act (other than
Division 7 of this Part) in any particular
circumstances specified by the regulations.
248 Right to apply for settlement
(1) A worker to whom this Subdivision applies may
15 apply for the settlement of his or her entitlement
under this Act (other than Division 7 of this Part)
with respect to the injury.
(2) The application must be made in accordance with
Subdivision 3.
20 249 Amount of settlement
The amount of the settlement is to be calculated in
accordance with the relevant method set out in an
Order in Council made under section 250.
250 Order in Council concerning settlements
25 (1) The Governor in Council, may by Order, specify
how settlement amounts are to be determined for
the purposes of this Subdivision.
(2) The Minister must not recommend the making of
an Order unless the Minister certifies in writing
30 that, in his or her opinion, the making of the
Order--
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(a) is consistent with ensuring that the accident
compensation scheme is managed as
effectively, efficiently and economically as
is possible; and
5 (b) is not likely to adversely affect the
competitiveness of the scheme; and
(c) is not likely to interfere with the scheme
being fully-funded.
(3) An Order, and the certificate of the Minister, must
10 be published in the Government Gazette.
(4) An Order takes effect on the day after it is
published in the Government Gazette, or on any
later day specified in the Order.
(5) On taking effect, an Order has the like force and
15 effect as if it were expressly enacted in this Act.
Subdivision 3--Application procedure
251 Expression of interest must first be given
(1) Before applying for a settlement under this
Division, a worker must give a written expression
20 of interest in applying for the settlement--
(a) if the liability to pay compensation lies with
a self-insurer, to the self-insurer; or
(b) in any other case, to the Authority.
(2) An expression of interest is only valid if--
25 (a) on the date it is given, the worker is eligible
to apply for the settlement; and
(b) it is accompanied by any documents in
relation to the identity and date of birth of
the worker that are required by a direction of
30 the Minister under section 263.
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252 Authority or self-insurer must respond to expression
of interest
(1) On receiving from a worker an expression of
interest in applying for a settlement, the Authority
5 or self-insurer must give the worker a written
response to the expression of interest.
(2) If the Authority or self-insurer is of the opinion
that the worker is eligible to apply for the
settlement, the response must include--
10 (a) a statement of that opinion; and
(b) a statement of the amount that the worker is
eligible to receive under Subdivision 1 or 2 if
he or she applies for the settlement and an
offer of settlement is made; and
15 (c) a statement that the Authority or self-insurer
will not grant an application unless the
worker obtains legal and financial advice as
specified in any relevant direction of the
Minister under section 263, and a copy of
20 any such direction; and
(d) a statement--
(i) that the Authority or self-insurer will
pay the reasonable costs of the worker
in obtaining the legal and financial
25 advice; and
(ii) of the maximum amount that will be
paid with respect to the advice; and
(iii) of when and how the costs of the advice
will be paid; and
30 (e) a statement that sets out the period within
which the application must be made and that
states the consequences if an application is
not made within that time.
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(3) If the Authority or self-insurer is of the opinion
that the worker is not eligible to apply for the
settlement, the response must include--
(a) a statement of that opinion; and
5 (b) a statement of the reasons why the Authority
or self-insurer is of that opinion.
253 Application for settlement
(1) This section applies if a worker is given a
response from the Authority or a self-insurer
10 under section 252(2).
(2) The worker may apply to the Authority or self-
insurer for the settlement.
(3) The application must--
(a) be made in writing; and
15 (b) be accompanied by any certificate required
by any direction of the Minister under
section 263.
254 Time limit for making applications
(1) A worker wishing to apply for a settlement must
20 do so before the expiry of 6 months from the date
the Authority or self-insurer gives him or her a
response under section 252(2).
(2) If a worker who is entitled to apply for a
settlement under Subdivision 1 or 2 fails to
25 comply with subsection (1), the worker is not
entitled to apply for a settlement under
Subdivision 1 or 2 until he or she gives the
Authority or self-insurer another expression of
interest in applying for a settlement and is given
30 another response under section 252(2).
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255 Authority or self-insurer must respond to
application
(1) On receiving an application for settlement from a
worker that complies with this Division, the
5 Authority or self-insurer must decide whether it
will offer a settlement to the worker.
(2) On making the decision, the Authority or self-
insurer must give the worker written notice of the
decision.
10 (3) If the Authority or self-insurer decides to offer a
settlement to the worker, the notice must include
an offer to settle for the amount advised under
section 252(2)(b).
(4) If the Authority or self-insurer decides not to offer
15 a settlement to the worker, the notice must include
a statement of the reasons why a settlement will
not be offered to the worker.
256 Time limit on response to offer
(1) If a worker wishes to accept an offer of settlement
20 made by the Authority or a self-insurer, he or she
must give the Authority or self-insurer a written
notice accepting the offer before the expiry of
28 days from the date the offer was given to him
or her.
25 (2) If a worker rejects the offer, or fails to accept the
offer within that 28 day period, the application
lapses and the worker ceases to be entitled to
apply for a settlement under this Division in
respect of the injury.
30 257 Payment and nature of settlement amounts
(1) If a worker accepts an offer of settlement, the
Authority or self-insurer must make the settlement
payment within the time (if any) required by any
direction of the Minister under section 263.
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(2) A settlement payment under this Division is a
capital sum for loss of earning capacity.
258 Adjustment of settlement amount offers
(1) This section applies if the Authority or a self-
5 insurer becomes aware at any time after providing
the response required by section 252, and before
paying the worker a settlement amount, that the
amount specified as the settlement amount in the
response does not comply with this Division.
10 (2) The Authority or self-insurer must, as soon as is
practicable after becoming aware that the
proposed settlement amount does not comply with
this Division, give the worker--
(a) a notice advising the worker that the
15 proposed settlement amount does not comply
with this Division and explaining the effect
of this section; and
(b) an amended written response complying with
section 252.
20 (3) For the purposes of section 254(1), the relevant
date is the date the worker was given the last
amended response.
(4) If--
(a) the reason why a proposed settlement
25 amount no longer complies with this
Division is the coming into effect of a
declaration under section 246(2); and
(b) the worker has obtained legal or financial
advice in respect of a response from the
30 Authority or self-insurer that has been
amended under this section; and
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(c) the settlement amount specified in the
amended response is more than--
(i) 5 per cent greater than the last
settlement amount previously advised;
5 and
(ii) $5 000 greater than that last amount--
the worker is entitled to obtain further legal or
financial advice at the expense of the Authority or
self-insurer.
10 (5) If the worker is given an amended response after
the worker has--
(a) applied for a settlement; or
(b) been offered a settlement; or
(c) accepted an offer of settlement--
15 the application, offer or acceptance is to be treated
as if it was for a settlement for the amount set out
in the amended response, unless the worker gives
the Authority or self-insurer a written notice,
before the expiry of 42 days from the date the
20 worker is given the amended response, stating that
he or she withdraws the application or acceptance
or rejects the offer (as the case may be).
(6) A worker to whom subsection (5) applies may
give the Authority or self-insurer a written notice
25 before the expiry of 42 days from the date the
worker is given the amended response accepting
an amended offer, or stating that he or she wishes
the application or acceptance to proceed (as the
case may be) on the basis of the amended amount.
30 (7) The Authority or self-insurer must give effect to a
notice given to it under subsection (6).
(8) The rights conferred on a worker by
subsection (5) are in addition to any rights
conferred on the worker by section 259.
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259 Worker may withdraw application at any time
A worker who has applied for a settlement under
this Division may withdraw the application at any
time before an offer is made by giving the
5 Authority or self-insurer written notice of the
withdrawal.
260 Circumstances in which offer may be withdrawn or
settlement avoided
(1) If this section applies, the Authority or a self-
10 insurer may--
(a) withdraw an offer of settlement made to the
worker under this Division before the worker
has accepted the offer of settlement; or
(b) if the worker has accepted the offer of
15 settlement made to the worker under this
Division and the settlement payment has not
been made, avoid the settlement.
(2) This section applies if a worker applying for a
settlement under this Division has made a
20 fraudulent or reckless misrepresentation relating
to his or her circumstances or any change in his or
her circumstances which would have been
material to the decision of the Authority or self-
insurer under section 255 whether or not to offer a
25 settlement to the worker.
(3) Without limiting the generality of subsection (2),
the circumstances include the following--
(a) the worker ceases to satisfy any of the
eligibility criteria specified in Subdivision 1
30 or 2;
(b) the worker is serving a sentence of
imprisonment which would disentitle the
worker to weekly payments in accordance
with section 177;
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(c) the worker becomes aware that any other
ground for the termination of weekly
payments in accordance with Division 3
applies but weekly payments have not been
5 terminated.
261 Preclusion of further claims
(1) A person who accepts a settlement under
Subdivision 1 or 2 is not entitled, after accepting
the settlement--
10 (a) to any further compensation or other
payment under this Act (other than
Division 7); or
(b) to recover damages in any proceedings
against--
15 (i) an employer who is a self-insurer or an
eligible subsidiary of a self-insurer; or
(ii) an employer or the Authority; or
(iii) a person whom the Authority is liable
to indemnify under section 71--
20 in respect of the injury, or in respect of any
recurrence of the injury, other than a recurrence
resulting from, or materially contributed to by,
employment engaged in after the date of the
settlement.
25 (2) Nothing in this section is intended to preclude or
interfere with any right a person may have to
recover compensation under the Sentencing Act
1991.
(3) In this section, recurrence includes aggravation,
30 acceleration, exacerbation, or deterioration.
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262 Authority or self-insurer may extend or waive time
limits
(1) The Authority or a self-insurer may extend or
waive any time limit specified in this Division
5 (including a time limit imposed under subsection
(4)) as it applies to a worker, on the written
application of the worker.
(2) The Authority or self-insurer may only extend or
waive such a time limit if it is satisfied that the
10 worker's failure to meet the time limit was due to
special circumstances.
(3) An application for the waiver of a time limit may
be made at any time, either before or after the
limit has expired.
15 (4) In extending or waiving a time limit, the Authority
or self-insurer must specify in writing a new time
limit within which the relevant act must be done.
(5) If the Authority or self-insurer extends or waives a
time limit--
20 (a) in the case of an extension, or a waiver that
is granted before the time limit expires, the
worker's entitlement to apply for a settlement
on the expiration of that time limit does not
cease on the expiration of that time limit; and
25 (b) in the case of a waiver, any entitlement to
apply for a settlement that ceased on the
expiry of the time limit is revived.
263 Minister may give directions
The Minister may give written directions in
30 accordance with section 609 that--
(a) require an expression of interest under
section 251 to be accompanied by proof of
the identity and date of birth of the worker
giving the expression of interest; and
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(b) specify what documents may be used to
satisfy such a requirement; and
(c) specify the legal and financial issues in
relation to a proposed settlement on which a
5 worker must receive advice before being
eligible to apply for the settlement; and
(d) specify the categories of people from whom
the advice may be received, or specify that
the advice must be obtained from a person
10 holding a specified minimum qualification;
and
(e) specify the form of certificates to be
completed by legal and financial advisors to
provide evidence that any advice required by
15 a direction made under this section has been
given; and
(f) specify when and how the Authority or a
self-insurer is to pay or reimburse a worker
in relation to the worker obtaining legal and
20 financial advice in relation to a proposed
settlement; and
(g) specify the maximum amounts that the
Authority or a self-insurer is liable to pay a
worker in respect of such advice; and
25 (h) require a worker to provide a copy to the
Authority or self-insurer of any advice
obtained for the purposes of this Division,
but only for the purpose of enabling a
determination of the reasonable cost of the
30 advice to be made; and
(i) specify the form in which an application for
settlement is to be made; and
(j) require the Authority or a self-insurer to pay
the settlement amount to a worker within a
35 specified period after the worker accepts the
settlement offer; and
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(k) specify that the Authority, self-insurer or a
worker do anything else that is necessary or
expedient to enable settlements under this
Division to be dealt with fairly and
5 efficiently.
__________________
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PART 6--DISPUTE RESOLUTION
Division 1--Jurisdiction
264 Jurisdiction--general
(1) Subject to the County Court Act 1958, the
5 County Court has exclusive jurisdiction to inquire
into, hear and determine any question or matter
arising under this Act or the Accident
Compensation Act 1985 out of--
(a) any decision of the Authority, an employer
10 or a self-insurer; or
(b) any recommendation or direction of a
conciliation officer.
(2) If the County Court is exercising the jurisdiction
conferred by subsection (1) in a proceeding
15 relating to the entitlement of a worker to weekly
payments, the County Court has the jurisdiction in
the proceeding to inquire into, hear and determine
any question or matter under this Act or the
Accident Compensation Act 1985 relating to any
20 termination or alteration of any entitlement to
weekly payments by virtue of this Act or the
Accident Compensation Act 1985.
(3) Proceedings must not be brought in respect of any
question or matter arising out of a decision of the
25 Authority under section 337 of this Act or section
134AB(20), 134AB(20A), 135A(6A)
or 135A(6B) of the Accident Compensation Act
1985.
(4) Subsection (1) does not apply to a question or
30 matter arising under--
(a) Division 9 of Part 5, section 357, Part 8 or
Part 10; or
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(b) Division 3A, 6A, 9A or 9B of Part IV or
Part V of the Accident Compensation Act
1985.
265 Jurisdiction under Workers Compensation Act 1958
5 Subject to the County Court Act 1958, the
County Court--
(a) has exclusive jurisdiction to inquire into,
hear and determine--
(i) any question or matter in relation to
10 whether liability to pay compensation
in relation to a claim for compensation
arises under this Act, the Accident
Compensation Act 1985 or the
Workers Compensation Act 1958;
15 and
(ii) any other question or matter relating to
claims for compensation under the
Workers Compensation Act 1958;
and
20 (b) has jurisdiction to inquire into, hear and
determine any question or matter relating
to--
(i) whether an insurer is, or two or more
insurers are, liable to indemnify an
25 employer under a policy of insurance or
indemnity issued under the Workers
Compensation Act 1958; or
(ii) the amount of any such liability; and
(c) has exclusive jurisdiction to inquire into,
30 hear and determine any question or matter in
respect of which jurisdiction is conferred on
the County Court by this Act in respect of
any question or matter arising under the
Workers Compensation Act 1958.
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266 Jurisdiction of Magistrates' Court
(1) If the County Court would have had jurisdiction
under this Act, the Accident Compensation Act
1985 or the Workers Compensation Act 1958 to
5 inquire into, hear and determine any question or
matter, the Magistrates' Court has a like
jurisdiction unless expressly excluded by this Act.
(2) The Magistrates' Court has jurisdiction to inquire
into, hear and determine any question or matter
10 relating to a decision, recommendation or
direction in respect of a request made under
section 9.
(3) The Magistrates' Court has exclusive jurisdiction
to hear and determine any application made under
15 section 240 of this Act or section 92AA of the
Accident Compensation Act 1985.
(4) Divisions 2 and 3 of Part 5 of the Magistrates'
Court Act 1989 do not apply to a proceeding
commenced in the Magistrates' Court under this
20 Part.
267 Application of this Act to the Magistrates' Court
This Act applies to the Magistrates' Court when
exercising jurisdiction under this Part as if a
reference to the County Court were a reference to
25 the Magistrates' Court.
268 Certain evidence given in a conciliation inadmissible
in certain proceedings
(1) Evidence of anything said, and any admission or
agreement made, at or during, or any document
30 prepared for the purposes of, a conciliation of a
dispute is not admissible in any proceedings other
than--
(a) proceedings for the enforcement of such an
agreement; or
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(b) in proceedings for an offence against this
Act, the Accident Compensation Act 1985,
the Accident Compensation (WorkCover
Insurance) Act 1993 or the Workers
5 Compensation Act 1958; or
(c) in proceedings for an offence against the
Crimes Act 1958 that arises in connection
with a claim for compensation under this
Act, the Accident Compensation Act 1985
10 or the Workers Compensation Act 1958.
(2) This section does not apply to evidence of an
outcome certificate issued under section 296(1).
269 Evidence relating to worker's claim
Despite anything to the contrary in any Act (other
15 than the Charter of Human Rights and
Responsibilities Act 2006) or at common law,
evidence given or a document produced or served
or information acquired in respect of a proceeding
or claim for compensation, damages or other
20 payment under, or in accordance with, this Act,
the Accident Compensation Act 1985, the
Workers Compensation Act 1958 or at common
law, whether before, on or after 1 July 2014 may
be used subject to this Part for the purposes of any
25 claim, proceeding or payment under or in
accordance with this Act, the Accident
Compensation Act 1985 or the Workers
Compensation Act 1958.
270 Protection of information given to Medical Panel
30 Information given to a Medical Panel must not be
used in any civil or criminal proceedings in any
court or tribunal other than proceedings--
(a) under this Act or the Accident
Compensation Act 1985 before a court or
35 VCAT; or
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(b) for an offence against this Act, the Accident
Compensation Act 1985, the Accident
Compensation (WorkCover Insurance)
Act 1993 or the Workers Compensation
5 Act 1958; or
(c) for an offence against the Crimes Act 1958
that arises in connection with a claim for
compensation under this Act, the Accident
Compensation Act 1985 or the Workers
10 Compensation Act 1958.
271 Admissibility of certificates of Medical Panel
A certificate given by a Medical Panel is
admissible in evidence in any proceedings under
this Act, the Accident Compensation Act 1985
15 or Part VBA of the Wrongs Act 1958.
272 Certain persons not compelled to give evidence
(1) A person who is, or has been, a member of a
Medical Panel is competent to give evidence in
proceedings as to matters in a certificate given by
20 the Medical Panel but is not compelled to give
such evidence.
(2) A person who has given expert advice to a
Medical Panel is competent to give evidence in
proceedings as to matters relating to that expert
25 advice but is not compelled to give such evidence.
273 Certain proceedings referred for conciliation
(1) Proceedings, other than proceedings specified in
subsection (3), must not be commenced in a court
unless--
30 (a) the dispute between the parties has been
referred for conciliation under Division 2;
and
(b) the Conciliation Officer is satisfied that all
reasonable steps have been taken by the
35 claimant to settle the dispute; and
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(c) the Conciliation Officer has issued a
certificate to that effect that he or she is so
satisfied.
(2) Despite the requirements of subsection (1), if--
5 (a) proceedings have been commenced in a
court in respect of a claim for compensation
under this Act or the Accident
Compensation Act 1985; and
(b) another dispute to which subsection (1)
10 applies (the other dispute) exists between
the parties (whether relating to the claim or
to another claim) that has not been referred
to conciliation under Division 2--
the other dispute need not be referred for
15 conciliation if a party seeks and obtains the leave
of the court to add the other dispute to the matters
to be brought before the court.
(3) This section does not apply to proceedings
relating to--
20 (a) Division 8 of Part 5, Part 10 or Division 7 of
Part 13; or
(b) a claim or payment under section 92, 92A,
92AA, 92B, 98 or 98A of the Accident
Compensation Act 1985; or
25 (c) any question or matter referred to in
section 265.
274 Medical questions
(1) In exercising jurisdiction under this Part, a
court--
30 (a) may, on the court's own motion, refer a
medical question to a Medical Panel for an
opinion under Division 3; or
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(b) if--
(i) a party to the proceedings requests that
a medical question be referred to a
Medical Panel; and
5 (ii) the party notified the court, no later
than 14 days prior to the date fixed for
hearing of the proceedings, or another
time determined by the court, of the
party's intention to request that a
10 medical question be so referred--
the court must, subject to subsections (3), (4) and
(5), refer a medical question to a Medical Panel
for an opinion under Division 3.
(2) This section extends to, and applies in respect of,
15 an application to the County Court for leave under
section 335(2)(d) of this Act or section
134AB(16)(b) of the Accident Compensation
Act 1985--
(a) so as to enable, in accordance with
20 subsection (1)(a), the County Court to refer a
medical question to a Medical Panel for an
opinion; or
(b) so as to require the County Court, at the
request of a party to the application, to refer,
25 in accordance with subsection (1)(b), a
medical question (other than a medical
question referred to in paragraph (o) of the
definition of medical question in
section 3)--
30 to a Medical Panel for an opinion.
(3) If a request is made to a court under subsection
(1)(b) to refer a medical question to a Medical
Panel for an opinion, the court may refuse to refer
the question if the court is of the opinion that the
35 referral would, in all the circumstances, constitute
an abuse of process.
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(4) A court has the discretion, if a request is made
under subsection (1)(b), as to the form in which a
medical question is referred to a Medical Panel.
(5) A court must not refer a medical question if it
5 appears to the court that the formation of an
opinion by a Medical Panel on the medical
question would depend substantially on the
resolution of factual issues which are more
appropriately determined by the court than by a
10 Medical Panel.
275 Court may state a question regarding factual issues
before referring a medical question to a Medical
Panel
(1) If, under section 274(5), the court has not referred
15 a medical question to a Medical 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 section 274(5); 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 (2) After answering a question referred to in
subsection (1), the court may refer a medical
question to a Medical Panel for an opinion.
(3) If, under subsection (2), the court refers a medical
question to a Medical Panel, the court must
30 provide the Medical Panel with--
(a) a copy of the question and the court's answer
to the question; and
(b) any reasons published by the court in relation
to the question; and
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(c) any further documents the court considers
appropriate.
(4) In forming an opinion on a medical question
referred to a Medical Panel under subsection (2),
5 the Medical Panel is bound by the answer to the
question stated and answered by the court under
subsection (1).
276 Court to give copies of documents to parties
If a court refers a medical question to a Medical
10 Panel, the court must give to each party to the
proceedings, copies of all documents in the
possession of the court relating to the medical
question.
277 Copies of Medical Panel's opinion
15 After a court receives the opinion of a Medical
Panel on a medical question referred to the
Medical Panel, the court--
(a) must give a copy of the opinion and the
written statement of reasons for that opinion
20 to the worker, the employer and the
Authority or self-insurer; and
(b) may give a copy of the opinion and the
written statement of reasons for that opinion
to a party to the proceedings.
25 278 Costs
(1) Subject to this Act, in proceedings brought before
a court under this Act, the Accident
Compensation Act 1985 or the Workers
Compensation Act 1958, by a person other than
30 the Authority, an employer or a self-insurer, the
court--
(a) must award costs against the party against
whom a judgment or decision is made; and
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(b) may, if it considers it appropriate, include in
an order under paragraph (a) an award of
costs to the representative of a worker in
whose favour a judgment or decision is
5 made; and
(c) must not otherwise make an award of costs.
(2) Nothing in subsection (1) applies to
proceedings brought by the Authority, an
employer or a self-insurer.
10 (3) In proceedings before the County Court under this
Act which relate to a claim under section 98 or
98A of the Accident Compensation Act 1985, if
a judgment or order is made by the County Court
for the payment of an amount of compensation to
15 the claimant--
(a) which is not less than 90 per cent of the
claimant's counter statutory offer but is
greater than the statutory offer made by the
Authority, employer or self-insurer, the
20 Authority, employer or self-insurer must pay
the claimant's party and party costs and must
bear their own costs; or
(b) which is equal to or less than the statutory
offer made by the Authority, employer or
25 self-insurer, the claimant must pay the party
and party costs of the Authority, employer or
self-insurer and bear his or her own costs; or
(c) which is greater than the statutory offer made
by the Authority, employer or self-insurer
30 but less than 90 per cent of the counter
statutory offer made by the claimant, each
party must bear their own costs--
and the County Court must not otherwise make an
award of costs.
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(4) If a direction of a Conciliation Officer under
Division 2--
(a) is revoked by the court on an application
under section 299; and
5 (b) the court has not made an order under
section 299(4)(b)--
the court--
(c) must order that the costs of the worker are to
be paid by the person who made the
10 application; and
(d) must not order that the costs of the person
who made the application be paid by the
worker.
(5) Costs awarded to a worker or claimant by the
15 County Court in proceedings brought by the
worker or claimant in which the judgment or
decision is a judgment or decision that could have
been made by the Magistrates' Court, had the
proceedings been brought in the Magistrates'
20 Court, must be awarded as if the scale of costs
applicable in the Magistrates' Court applied.
(6) If a settlement or compromise is made in respect
of proceedings in the County Court brought under
this Act or the Accident Compensation Act
25 1985, by a worker or claimant and the outcome
achieved by the settlement or compromise could
have been achieved by a judgment or decision
made by the Magistrates' Court had the
proceedings been brought in the Magistrates'
30 Court--
(a) subsections (7) and (8) apply in respect of
that settlement or compromise; and
(b) whether or not an agreement referred to in
subsection (7) is entered into, the worker or
35 claimant or his or her legal practitioner is not
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entitled to receive either directly or indirectly
from the other party to the proceedings an
amount for or in respect of the legal
practitioner appearing for or acting on behalf
5 of the worker or claimant in the proceedings
that exceeds the amount the worker or
claimant or legal practitioner could have
been awarded if the scale of costs applicable
in the Magistrates' Court applied.
10 (7) An agreement must not be entered into in respect
of, or which forms part of, the settlement or
compromise which provides that the worker or
claimant or his or her legal practitioner is to
receive directly or indirectly from the other party
15 to the proceedings for or in respect of the legal
practitioner appearing for or acting on behalf of
the worker or claimant in the proceedings, an
amount that exceeds the amount that the worker or
claimant or legal practitioner could have been
20 awarded if the scale of costs applicable in the
Magistrates' Court applied.
(8) An agreement that does not comply with
subsection (7) is void but the validity of the
settlement or compromise is not otherwise
25 affected.
(9) This section has effect despite anything to the
contrary in any other Act or law.
279 Costs liability of legal practitioner
(1) If the legal practitioner for a party to proceedings
30 before a court brought under this Act or the
Accident Compensation Act 1985, whether
personally or through a servant or agent, has--
(a) without reasonable cause, caused
proceedings which could have been brought
35 within the jurisdiction of the Magistrates'
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Court to be commenced in the County Court;
or
(b) caused costs to be incurred improperly or
without reasonable cause or to be wasted by
5 undue delay or negligence or by any other
misconduct or default--
the court may make an order as specified in
subsection (2).
(2) The court may order that--
10 (a) all or any of the costs between the legal
practitioner and the client be disallowed or
that the legal practitioner repay to the client
the whole or part of any money paid on
account of costs; or
15 (b) the legal practitioner pay to the client all or
any of the costs which the client has been
ordered to pay to any party; or
(c) the legal practitioner pay all or any of the
costs payable by any party other than the
20 client.
(3) Without limiting subsection (1), a legal
practitioner is in default for the purposes of that
subsection if any proceeding cannot conveniently
be heard or proceed, or fails or is adjourned
25 without any useful progress being made, because
the legal practitioner failed to--
(a) attend in person or by a proper
representative; or
(b) file any document which ought to have been
30 filed; or
(c) lodge or deliver any document for the use of
the court which ought to have been lodged or
delivered; or
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(d) be prepared with any proper evidence or
account; or
(e) otherwise proceed.
(4) The court must not make an order under
5 subsection (2) without giving the legal practitioner
a reasonable opportunity to be heard.
(5) The court may order that notice of any proceeding
or order against a legal practitioner under this
section be given to the client in such manner as
10 the court directs.
(6) This section is to be construed as being in addition
to, and not in derogation of, the Civil Procedure
Act 2010, section 78A of the County Court Act
1958 or section 132 of the Magistrates' Court
15 Act 1989.
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Division 2--Disputes and conciliation
280 Flow chart 7--dispute resolution process if a worker
disagrees with a decision
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281 Definitions
(1) In this Division--
conciliation conference means a conference held
with or before a Conciliation Officer--
5 (a) to resolve; or
(b) for the purpose of giving directions in
connection with--
a dispute referred for conciliation;
dispute means a dispute to which this Division
10 applies.
(2) This Division applies to a dispute in connection
with a claim for compensation under this Act or
the Accident Compensation Act 1985 between
the person who makes, or has made, the claim and
15 any one or more of the following--
(a) the employer (not being a self-insurer or an
eligible subsidiary of a self-insurer) of the
relevant worker;
(b) if the compensation is or may be payable by
20 the Authority, the Authority;
(c) if the compensation is or may be payable by
a self-insurer, the self-insurer.
282 Lodging of disputes
(1) A party to a dispute may refer the dispute for
25 conciliation by a Conciliation Officer.
(2) A referral for conciliation of a dispute must be
lodged with the Senior Conciliation Officer by
sending or delivering notice in a form approved
by the Minister within 60 days after notice of the
30 decision was given to, or served on, the worker or
claimant.
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(3) A referral must be signed or sealed personally by
the party making the application unless the Senior
Conciliation Officer is satisfied that there are
special circumstances preventing the party from
5 doing so personally.
283 Power of Senior Conciliation Officer to allow
lodging of dispute
The Senior Conciliation Officer may, on
application, allow--
10 (a) an extension of time for lodging an
application; or
(b) an application to be lodged out of time--
if he or she considers it appropriate in the
circumstances of the particular case.
15 284 Conciliation officer may seek opinion of a Medical
Panel on medical question
A Conciliation Officer may refer a medical
question to a Medical Panel for an opinion under
this Division.
20 285 Referral of medical question relating to section 165
of this Act or section 93CD of the Accident
Compensation Act 1985
(1) If a medical question arises in a dispute relating to
section 165 of this Act or section 93CD of the
25 Accident Compensation Act 1985, 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 the
30 costs reasonably incurred by a worker in relation
to a referral of a medical question under this
section.
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286 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
5 all information, to the Conciliation Officer that--
(a) relate to the dispute; and
(b) are reasonably available to the party--
unless the party claims privilege or immunity
from producing that document or disclosing that
10 information.
287 Representation by legal practitioner
(1) Except as provided in subsection (2), a person
who is a party to a dispute is not entitled to be
represented by a legal practitioner at a conciliation
15 conference.
(2) The Conciliation Officer and each party to a
dispute may agree to a person who is a party to the
dispute being represented by a legal practitioner at
a conciliation conference.
20 (3) A legal practitioner appearing at a conciliation
conference on behalf of a party in accordance with
subsection (2) has the same protection and
immunity as a legal practitioner has in appearing
for a party in proceedings in the Supreme Court.
25 288 Information from provider of medical service or
other service
A provider of a medical service or a provider of a
service under Division 6 or 7 of Part 5 of this Act
or Division 2B or 2C of the Accident
30 Compensation Act 1985 who has examined a
worker may, with the consent of the worker and at
the request of the Conciliation Officer--
(a) meet with the Conciliation Officer and
answer questions; and
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(b) supply relevant documents to the
Conciliation Officer.
289 Costs of reports by registered health practitioners
(1) The Authority or a self-insurer must pay the
5 reasonable costs of a report provided by a
registered health practitioner who has examined a
worker if--
(a) the report has been requested by a
Conciliation Officer; and
10 (b) the worker has consented to a report being
provided.
(2) In this section, registered health practitioner
means any of the following--
(a) medical practitioner;
15 (b) registered dentist;
(c) registered optometrist;
(d) registered physiotherapist;
(e) registered chiropractor;
(f) registered osteopath;
20 (g) registered podiatrist;
(h) registered psychologist.
290 Conciliation without conference
If a Conciliation Officer is satisfied that sufficient
information has been supplied to him or her in
25 connection with a dispute, the Conciliation Officer
may exercise functions under this Division--
(a) without having any conciliation conference;
and
(b) without requesting further information from
30 any party to the dispute.
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291 Power to request or release documents etc.
(1) A Conciliation Officer may request a party who
participates in a conciliation to--
(a) produce a document or a class of documents
5 specified; or
(b) provide information or information of a kind
specified--
that the Conciliation Officer considers may be
relevant to the resolution of the dispute.
10 (2) A Conciliation Officer may, at his or her
discretion, make any documents or information
provided under subsection (1) available to any
other party.
292 Offence to make false or misleading statement
15 A person must not, in connection with a dispute
referred for conciliation, make a statement that the
person knows to be false or misleading in a
material particular.
Penalty: In the case of a natural person,
20 60 penalty units or 6 months
imprisonment or both;
In the case of a body corporate,
300 penalty units.
293 Duty of Conciliation Officers
25 A Conciliation Officer must, having regard to the
need to be fair, economical, informal and quick,
and having regard to the objectives of this Act,
make all reasonable efforts to conciliate in
connection with a dispute and to bring the parties
30 to agreement.
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294 Powers of Conciliation Officers
(1) The Conciliation Officer may do any one or more
of the following things in connection with a
dispute or any part of a dispute--
5 (a) make such recommendations to the parties to
the dispute as he or she considers to be
appropriate;
(b) in the case of a dispute arising under
section 9--
10 (i) give a direction that information
relevant to a claim for compensation is
to be given to the person who requested
the information; or
(ii) notify the person who requested the
15 information that there is a genuine
dispute with respect to the giving of the
information requested;
(c) in the case of a dispute to which section 297
applies, give directions under this Division;
20 (d) decline to make any recommendation or give
any direction.
(2) Unless a court determines otherwise, a
Conciliation Officer may--
(a) conciliate with respect to a dispute; and
25 (b) make or give relevant recommendations or
directions--
even though the dispute is pending determination
in proceedings under this Act or the Accident
Compensation Act 1985.
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295 Offence not to comply with direction
A person who is given a direction by a
Conciliation Officer under this Division must
comply with the direction.
5 Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
296 Outcome certificates to be issued
10 (1) Subject to subsection (4), a Conciliation 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
15 under section 282; and
(b) the dispute is resolved.
(2) The outcome certificate must--
(a) be in a form approved by the Senior
Conciliation Officer; and
20 (b) be provided to the worker and the employer
and the Authority or self-insurer; and
(c) set out any terms on which the dispute is
resolved; and
(d) certify that each party to the dispute is bound
25 by the result; and
(e) state that the outcome certificate is evidence
of--
(i) the resolution of the dispute between
the parties; and
30 (ii) the terms on which the dispute has been
resolved.
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(3) The outcome certificate is admissible in any court
proceeding as evidence of--
(a) the resolution of the dispute between the
parties; and
5 (b) the terms on which the dispute has been
resolved.
(4) A Conciliation Officer is not required to comply
with subsection (1) in relation to a dispute referred
to in that subsection if the Conciliation Officer
10 issues a certificate in respect of that dispute under
section 273 of this Act or section 104(7) of the
Accident Compensation Act 1985.
297 Conciliation Officer may give directions about
payment of compensation
15 (1) In this section, a reference to a dispute as to
liability to make or continue to make weekly
payments includes a reference to a dispute as to--
(a) whether a worker has no current work
capacity; or
20 (b) whether a worker has a current work
capacity; or
(c) any other matter that affects the amount of
weekly payments--
but does not include--
25 (d) a dispute as to compensation in the form of
superannuation contributions; or
(e) a reference of a matter under section 26(1).
(2) This section applies if a dispute relating to--
(a) a claim for weekly payments under this Act
30 or the Accident Compensation Act 1985; or
(b) a continuation of weekly payments under
this Act or the Accident Compensation Act
1985; or
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(c) a claim for payment of compensation under
Division 7 of Part 5 of this Act or
Division 2B of Part IV of the Accident
Compensation Act 1985; or
5 (d) payment, or continuation of payment, of
compensation under Division 7 of Part 5 of
this Act or Division 2B of Part IV of the
Accident Compensation Act 1985--
has been referred to conciliation under this
10 Division, but a Conciliation Officer is unable to
bring the parties to agreement by conciliation.
(3) If the Conciliation Officer is satisfied that there is
no genuine dispute with respect to the liability to
make, or continue to make, weekly payments, the
15 Conciliation Officer may direct the Authority,
employer or self-insurer, as the case may be, to
pay, or continue to pay, compensation in
accordance with the direction.
(4) A direction or further direction of a Conciliation
20 Officer under this section may require the
Authority, employer or self-insurer to pay, or
continue to pay, weekly payments for such period
not exceeding 12 weeks as is specified in the
direction.
25 (5) Nothing in this section prevents a Conciliation
Officer from giving a further direction or further
directions for payment of compensation after the
expiry of an earlier direction, except where the
earlier direction is revoked by the court.
30 (6) In addition to the power conferred by subsection
(4), a Conciliation Officer may direct payment of
weekly payments in respect of a period ending
before the direction is given, but that period must
not exceed 24 weeks.
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(7) If a Conciliation Officer gives a direction or
further direction to pay or continue to pay weekly
payments, the Conciliation Officer may also give
a general direction to the Authority, employer or
5 self-insurer, to pay, subject to and in accordance
with Division 7 of Part 5 of this Act or
Division 2B of Part IV of the Accident
Compensation Act 1985, the reasonable costs of
services specified in Division 7 of Part 5 of this
10 Act or Division 2B of Part IV of the Accident
Compensation Act 1985 that were, or are to be,
provided during the period specified in the
direction under subsection (4) or (6), as the case
may be.
15 (8) Subsection (9) applies if--
(a) the dispute is, or includes, a dispute as to
liability for payment of compensation, or
continuation of payment of compensation,
under Division 7 of Part 5 of this Act or
20 Division 2B of Part IV of the Accident
Compensation Act 1985; and
(b) the Conciliation Officer is satisfied that there
is no genuine dispute with respect to such
liability; and
25 (c) the Conciliation Officer has not given a
direction under subsection (7).
(9) If this subsection applies, the Conciliation Officer
may give a general direction to the Authority, self-
insurer or employer to pay, subject to and in
30 accordance with Division 7 of Part 5 of this Act or
Division 2B of Part IV of the Accident
Compensation Act 1985, the reasonable costs of
services specified in Division 7 of Part 5 of this
Act or Division 2B of Part IV of the Accident
35 Compensation Act 1985 but not exceeding $5000
in respect of the relevant injury.
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(10) For the purposes of this section, a Conciliation
Officer is to be taken to be satisfied that there is
no genuine dispute if the Conciliation Officer is
satisfied that there is no arguable case in support
5 of the denial of liability.
298 Genuine disputes about liability for compensation
referred to in section 297(1) and (2)
(1) If a Conciliation Officer is satisfied that there is a
genuine dispute with respect to liability for
10 payment of compensation referred to in section
297(1) and (2), the Conciliation Officer must
notify the person--
(a) who made the claim for compensation; or
(b) who was receiving compensation--
15 of that fact and that an application may be made to
a court to determine the matter.
(2) For the purposes of this section, a Conciliation
Officer is to be taken to be satisfied that there is a
genuine dispute if the Conciliation Officer is
20 satisfied that there is an arguable case in support
of the denial of liability for the payment of
compensation.
299 Revocation of directions of Conciliation Officer
(1) A direction given by a Conciliation Officer under
25 this Division may be revoked by the Conciliation
Officer or by any other Conciliation Officer.
(2) A court may, on the application of a person who is
liable to make payments of compensation in
accordance with a direction of a Conciliation
30 Officer under this Division, revoke the direction.
(3) If a direction is revoked, the obligation to make
payments of compensation under the direction
ceases.
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(4) If a court determines that a person is not liable to
make the payments of compensation that have
been paid in accordance with a direction of a
Conciliation Officer--
5 (a) the worker or other person who received
those payments is not required to refund
those payments unless the court otherwise
orders under paragraph (b);
(b) if the court is satisfied that the claim for
10 compensation was wholly or partly
fraudulent or made without proper
justification, it may order the worker or other
person concerned to refund the whole or a
specified part of those payments;
15 (c) the court may, instead of making an order for
a refund, order any other person whom it
determines was liable for the whole or any
part of those payments to reimburse the
person who made those payments.
20 (5) The Magistrates' Court may, on the application of
a person to whom a direction has been given
under section 294(1)(b)(i), revoke the direction.
300 Payments under direction etc. not admission of
liability
25 (1) The fact that a person--
(a) pays or continues to pay compensation in
accordance with a direction or
recommendation of a Conciliation Officer
under this Division; or
30 (b) does not apply for a revocation of any such
direction--
is not an admission of liability by the person.
(2) The grant or refusal by a court of an application
for revocation of a direction is not a finding as to
35 liability in respect of the matter in dispute.
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301 Costs
(1) Despite section 285(2), each party to a dispute
referred to conciliation bears the party's own
costs.
5 (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 worker's
transport to and from the conciliation
10 conference as specified in subsection (3);
and
(b) reimburse the worker for any loss of income
sustained by the worker in attending the
conciliation conference as specified in
15 subsection (4).
(3) An amount not exceeding $56 may be paid to a
worker for his or her reasonable transportation
expenses in getting to and from the conciliation
conference.
20 (4) An amount not exceeding $386 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 subsection
25 (2) is not a payment of compensation under this
Act or the Accident Compensation Act 1985
except for the purposes of--
(a) calculating employer premiums under
Part 10; or
30 (b) seeking an indemnity from a third party
under section 369 or any other indemnity
under this Act or under section 138 of the
Accident Compensation Act 1985 or any
other indemnity under that Act; or
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(c) seeking a refund of payments under
section 599 or any other amount relating to
the recovery of payments under this Act or
the Accident Compensation Act 1985.
5 Division 3--Medical Panels
302 Function of Medical Panel
(1) The function of a Medical Panel is to give its
opinion on any medical question in respect of
injuries arising out of, or in the course of, or due
10 to the nature of, employment referred by a
Conciliation Officer, the court, VCAT, the
Authority or a self-insurer.
(2) A Medical Panel must give its opinion on a
medical question in accordance with this Division.
15 303 Procedures and powers
(1) A Medical Panel is not bound by rules or practices
as to evidence, but may inform itself on any
matter relating to a reference in any manner it
thinks fit.
20 (2) The Medical Panel must act informally, without
regard to technicalities or legal forms and as
speedily as a proper consideration of the reference
allows.
(3) The Minister may, for the purposes of--
25 (a) ensuring procedural fairness in the
procedures of the Medical Panels; and
(b) facilitating the proper administration of the
Medical Panels--
make guidelines as to the procedures of Medical
30 Panels.
(4) The Minister must consult with the Attorney-
General before making any guidelines under this
section.
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(5) Guidelines made by the Minister under this
section must be published in the Government
Gazette and on a Government Internet website.
(6) The Convenor may give directions as to the
5 arrangement of the business of the Medical Panels
but must not give directions inconsistent with any
guidelines made by the Minister.
304 Reference of medical question
A person or body referring a medical question to a
10 Medical Panel must give the Convenor--
(a) a document specifying--
(i) the injury or alleged injury to, or in
respect of, which the medical question
relates; and
15 (ii) the facts or questions of fact relevant to
the medical question that the person or
body is satisfied have been agreed and
those facts or questions that are in
dispute; and
20 (b) copies of all documents relating to the
medical question in the possession of that
person or body.
305 Convenor to convene Medical Panel
If a medical question is referred to the Convenor
25 under section 304, subject to section 306(1), the
Convenor must, as expeditiously as possible--
(a) convene a Medical Panel; and
(b) give the Medical Panel the documents
received by the Convenor with the reference.
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306 When opinion on medical question may not be given
(1) Despite sections 302(2) and 313(1), if a
Conciliation Officer refers a medical question to a
Medical Panel under section 284 and it becomes
5 apparent to the Convenor or the Medical Panel
that the formation of an opinion by the Medical
Panel on the medical question will depend
substantially on the resolution of factual issues
which are more appropriately determined by a
10 court than by a Medical Panel--
(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.
15 (2) The Convenor must inform the Conciliation
Officer, in writing, of a decision made by the
Convenor or the Medical Panel under subsection
(1)(a) or (b).
307 What a Medical Panel may ask a worker to do
20 A Medical Panel may ask a worker to do any or
all of the following--
(a) to meet with the Medical Panel and answer
questions;
(b) to supply copies of all documents in the
25 possession of the worker which relate to the
medical question to the Medical Panel;
(c) to submit to a medical examination by the
Medical Panel or by a member of the
Medical Panel.
30 308 Examination by Medical Panel
(1) A Conciliation Officer, a court, the Authority or a
self-insurer may, at any time or from time to time,
require any worker who--
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(a) claims compensation under this Act or the
Accident Compensation Act 1985; or
(b) receives weekly payments of compensation
under this Act or the Accident
5 Compensation Act 1985--
to submit himself or herself for examination by a
Medical Panel on a date and at a place arranged
by the Convenor of Medical Panels.
(2) A Medical Panel may refuse to proceed with an
10 examination if--
(a) the worker has submitted himself or herself
for examination by a medical practitioner in
accordance with a requirement of the
Authority or self-insurer or has been
15 examined by a medical practitioner selected
by the worker; and
(b) the Authority or self-insurer or the worker
(as the case may be) has furnished the other
with a copy of the medical practitioner's
20 report of the examination; and
(c) the Medical Panel is not provided with a
copy of that report.
309 If worker unreasonably refuses to comply with
request under section 307
25 (1) If a worker unreasonably refuses to comply with a
request under section 307 or in any way hinders
the examination--
(a) the worker's rights to recover compensation
under this Act or the Accident
30 Compensation Act 1985 with respect to the
injury; or
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(b) the worker's rights to weekly payments under
this Act or the Accident Compensation Act
1985--
are suspended until the examination has taken
5 place.
(2) When the examination takes place, any period
between the date on which the request was made
or the worker in any way hindered the
examination and the date of the examination must
10 be taken into account for the purpose of
calculating, subject to this Act, a period of time
for the purposes of this Act or the Accident
Compensation Act 1985.
(3) Any weekly payments which would otherwise be
15 payable during the period of suspension are
forfeited.
310 Attendance before Medical Panel to be in private
(1) Any attendance of a worker before a Medical
Panel must be in private, unless the Medical Panel
20 considers that it is necessary for another person to
be present.
(2) If a worker is a minor or a person under a
disability, the Medical Panel must permit a
representative of the worker to be present.
25 (3) In this section, representative of the worker
means--
(a) if proceedings have not been commenced in
respect of the worker's claim, an
administrator appointed in respect of the
30 worker under the Guardianship and
Administration Act 1986; or
(b) if proceedings have commenced in respect of
the worker's claim--
(i) the worker's litigation guardian; or
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(ii) a person appointed by the court to be a
representative of the worker for the
purposes of subsection (2).
311 Medical Panel can ask provider of medical service to
5 attend
If a Medical Panel so requests and the worker
consents, a person who is a provider of a medical
service (within the meaning of paragraph (a) of
the definition of medical service in section 3) and
10 has examined the worker must--
(a) meet with the Medical Panel and answer
questions; and
(b) supply relevant documents to the Medical
Panel.
15 312 Medical Panel may request further information
(1) If a medical question has been referred to a
Medical Panel and the Medical Panel considers
that further information is required to enable it to
form a medical opinion on the question--
20 (a) the Medical Panel may request the worker,
or the person or body referring the medical
question, to provide the information within
the period specified in the request, not being
a period less than 14 days after the date on
25 which the worker last attended for
examination by the Medical Panel; and
(b) the Medical Panel must consider the
information provided; and
(c) the time limit specified in section 313(1) is
30 suspended from the date on which the
request under paragraph (a) is made until the
end of the period specified in the request.
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(2) The Medical Panel may accept any further
information requested under subsection (1)(a)
which is provided after the period specified in the
request under subsection (1).
5 313 Opinions
(1) Subject to section 312, a Medical Panel must form
its opinion on a medical question referred to it--
(a) within 60 days after the Medical Panel
receives from the Convenor the documents
10 relating to the medical question; or
(b) within such longer period as is agreed by the
Conciliation Officer, a court, VCAT, the
Authority or the self-insurer.
(2) The Medical Panel to whom a medical question is
15 so referred must give a certificate as to its opinion
and a written statement of reasons for that
opinion.
(3) Within 7 days after forming its opinion on a
medical question referred to it, a Medical Panel
20 must give the relevant Conciliation Officer, the
court, VCAT or the Authority or the self-insurer
its written opinion and a written statement of
reasons for that opinion.
(4) For the purposes of determining any question or
25 matter, the opinion of a Medical Panel on a
medical question referred to the Medical Panel--
(a) is to be adopted and applied by any court,
body or person; and
(b) must be accepted as final and conclusive by
30 any court, body or person--
irrespective of who referred the medical question
to the Medical Panel or when the medical question
was referred.
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(5) Proceedings must not be brought against the
Convenor, a Medical Panel or any of its members
in respect of any question as to the adequacy of a
statement of reasons given by the Medical Panel,
5 other than for the purposes of seeking an order
that further reasons be given or that the reasons
are inadequate and warrant an inference that the
Medical Panel failed to exercise its powers in
accordance with the law.
10 (6) If, in proceedings seeking an order that a Medical
Panel give further reasons, the Supreme Court
makes such an order and the order is not complied
with, the Supreme Court, in addition to, or in lieu
of, making an order to enforce compliance, may
15 make any order it might have made if there had
been an error of law in the statement of reasons.
Division 4--Determination by courts and recognition of
determinations
314 Determination of State with which worker's
20 employment is connected in proceedings under this
Act
(1) If the question of whether this State is connected
with a worker's employment arises in proceedings
in a court in relation to a claim for compensation
25 under this Act or the Accident Compensation
Act 1985, that court must--
(a) determine the State with which the worker's
employment is connected in accordance with
section 37; and
30 (b) cause that determination to be entered in the
records of the court.
(2) Subsection (1) does not apply if there is a
determination that is to be recognised under
section 316.
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315 Determination of the State with which worker's
employment is connected
(1) If a claim for compensation under this Act or the
Accident Compensation Act 1985 has been
5 made, a party to the claim may apply to the court
for a determination of the question of which State
is the State with which the worker's employment
is connected.
(2) The court must determine an application under
10 subsection (1) in accordance with section 37 and
cause that determination to be entered in the
records of the court.
(3) An application under subsection (1) is not to be
made or heard if there is a determination that is to
15 be recognised under section 316.
316 Recognition of previous determinations
(1) If a determination of the State with which a
worker's employment is connected has been
made--
20 (a) by a court of this State under section 314
or 315; or
(b) by a designated court under a provision of a
law that corresponds with section 314
or 315; or
25 (c) by a court of this State or another State in the
course of proceedings on a claim for
damages--
the State so determined is to be recognised for the
purposes of this Act or the Accident
30 Compensation Act 1985 as the State with which
the worker's employment is connected.
(2) This section does not prevent any appeal relating
to any such determination of a court and, if the
determination is altered on appeal, the altered
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determination is to be recognised under
subsection (1).
(3) In this section--
corresponding law means the provisions of
5 the statutory workers compensation scheme
of another State that corresponds with
section 37;
designated court means--
(a) the Supreme Court of a State in which a
10 corresponding law is in force; or
(b) a court, tribunal or other decision-
making body of a State in which a
corresponding law is in force that is
declared by the Minister to be a
15 designated court for the purposes of this
section by a notice published in the
Government Gazette;
State includes Territory.
317 Determination may be made by consent
20 In this Division a reference to a determination
made by a court or a designated court in a
proceeding includes a reference to a determination
made by the court with the consent of the parties
to the proceeding.
__________________
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PART 7--ACTIONS AND PROCEEDINGS FOR DAMAGES
Division 1--Choice of Law
318 Claims to which this Division applies
(1) This Division applies only to a claim for damages
5 or recovery of contribution brought against a
worker's employer in respect of an injury that was
caused by--
(a) the negligence or other tort (including breach
of statutory duty) of the worker's employer;
10 or
(b) a breach of contract by the worker's
employer.
(2) This Division also applies to a claim for damages
or recovery of contribution brought against a
15 person other than a worker's employer in respect
of an injury if--
(a) the worker's employment is connected with
Victoria; and
(b) the negligence or other tort or the breach of
20 contract on which the claim is founded
occurred in Victoria.
(3) Subsections (1)(a) and (2) apply even if damages
resulting from the negligence or other tort are
claimed in an action for breach of contract or
25 other action.
(4) A reference in this Division to a worker's
employer includes a reference to--
(a) a person who is vicariously liable for the acts
of the employer; and
30 (b) a person for whose acts the employer is
vicariously liable.
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319 The applicable substantive law for work injury
damages claims
(1) If there is an entitlement to compensation under
the statutory workers compensation scheme of a
5 State in respect of an injury to a worker (whether
or not compensation has been paid), the
substantive law of that State is the substantive law
that governs--
(a) whether or not a claim for damages in
10 respect of the injury can be made; and
(b) if it can be made, the determination of the
claim.
(2) This Division does not apply if compensation is
payable in respect of the injury under the statutory
15 workers compensation scheme of more than one
State.
(3) For the purposes of this section, compensation is
considered to be payable under a statutory
workers compensation scheme of a State in
20 respect of an injury if compensation in respect of
it--
(a) would have been payable but for a provision
of the scheme that excludes the worker's
right to compensation because the injury is
25 attributable to any conduct or failure of the
worker that is specified in that provision; or
(b) would have been payable if a claim for that
compensation had been duly made, and
(where applicable) an election to claim that
30 compensation (instead of damages) had been
duly made.
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(4) A reference in this section to compensation
payable in respect of an injury does not include a
reference to compensation payable on the basis of
the provisional acceptance of liability.
5 (5) In this Division, State includes Territory.
320 What constitutes injury and employment and who is
employer
For the purposes of this Division--
(a) injury and employer include anything that is
10 within the scope of a corresponding term in
the statutory workers compensation scheme
of another State; and
(b) the determination of what constitutes
employment or whether or not a person is the
15 worker's employer is to be made on the basis
that those concepts include anything that is
within the scope of a corresponding concept
in the statutory workers compensation
scheme of another State.
20 321 Claim in respect of death included
For the purposes of this Division, a claim for
damages in respect of death resulting from an
injury is to be considered as a claim for damages
in respect of the injury.
25 322 Meaning of substantive law
In this Division--
a State's legislation about damages for a work
related injury means--
(a) for this State, this Part, Part 10 and any
30 other provision of this Act providing
for the interpretation of anything in this
Part; and
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(b) for any other State, any provisions of a
law of the State that is declared by the
Minister to be the State's legislation
about damages for a work related injury
5 for the purposes of this section by a
notice published in the Government
Gazette;
substantive law includes--
(a) a law that establishes, modifies or
10 extinguishes a cause of action or a
defence to a cause of action; and
(b) a law prescribing the time within which
an action must be brought (including a
law providing for the extension or
15 abridgment of that time); and
(c) a law that provides for the limitation or
exclusion of liability or the barring of a
right of action if a proceeding on, or
arbitration of, a claim is not
20 commenced within a particular time
limit; and
(d) a law that limits the kinds of injury,
loss or damage for which damages or
compensation may be recovered; and
25 (e) a law that precludes the recovery of
damages or compensation or limits the
amount of damages or compensation
that can be recovered; and
(f) a law expressed as a presumption, or
30 rule of evidence, that affects
substantive rights; and
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(g) a provision of a State's legislation about
damages for a work related injury,
whether or not it would be otherwise
regarded as procedural in nature--
5 but does not include a law prescribing rules
for choice of law.
323 Availability of action in another State not relevant
(1) It makes no difference for the purposes of this
Division that, under the substantive law of another
10 State--
(a) the nature of the circumstances is such that
they would not have given rise to a cause of
action had they occurred in that State; or
(b) the circumstances on which the claim is
15 based do not give rise to a cause of action.
(2) In this section, another State means a State other
than the State with which the worker's
employment is connected.
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Division 2--Actions for damages
324 Flow chart 8--common law process
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325 Definitions
(1) In this Division--
determination date, in relation to an injury,
means--
5 (a) if the worker is assessed under
Division 4 of Part 5 or under
section 104B of the Accident
Compensation Act 1985 to have a
degree of impairment of 30 per cent or
10 more, the date on which the worker
receives advice under section 330(1)(a);
or
(b) the date on which the Authority or self-
insurer issues a certificate under section
15 335(2)(c) consenting to the bringing of
proceedings; or
(c) if the Authority or self-insurer fails to
advise the worker in writing as required
by section 330(1) within the period
20 referred to in section 330(1), the date
on which, under section 330(3), the
injury is deemed to be a serious injury;
or
(d) the date--
25 (i) unless subparagraph (ii) applies,
on which a court gives leave under
section 335(2)(d); or
(ii) on which an appeal by the
Authority, self-insurer or worker
30 in relation to a decision of a court
under section 335(2)(d) is
determined--
whichever is the later date;
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medical report means--
(a) a statement in writing on medical
matters concerning the worker, made
by a medical practitioner; and
5 (b) includes any document which the
medical practitioner intends should be
read with the statement, whether the
document--
(i) was in existence at the time the
10 statement was made; or
(ii) was a document which he or she
obtained or caused to be brought
into existence subsequently;
pain and suffering includes loss of amenities of
15 life or loss of enjoyment of life;
pecuniary loss damages means damages for loss
of earnings, loss of earning capacity, loss of
value of services or any other pecuniary loss
or damage;
20 response date means the date on which the period
of 28 days after the determination date
expires;
serious injury means--
(a) permanent serious impairment or loss
25 of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent
severe behavioural disturbance or
disorder; or
30 (d) loss of a foetus.
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(2) For the purposes of the assessment of serious
injury in accordance with section 335(2)
and (5)--
(a) the following definitions apply--
5 foetus has the same meaning as in
section 214(2);
income from personal exertion has the same
meaning as in section 6(2) of the
Transport Accident Act 1986;
10 (b) the terms serious and severe are to be
satisfied by reference to the consequences to
the worker of any impairment or loss of a
body function, disfigurement, or mental or
behavioural disturbance or disorder, as the
15 case may be, with respect to--
(i) pain and suffering; or
(ii) loss of earning capacity--
when judged by comparison with other cases
in the range of possible impairments or
20 losses of a body function, disfigurements, or
mental or behavioural disturbances or
disorders, respectively;
(c) an impairment or loss of a body function or a
disfigurement is not to be held to be serious
25 for the purposes of section 335(2) unless--
(i) the pain and suffering consequence; or
(ii) the loss of earning capacity
consequence--
is, when judged by comparison with other
30 cases, in the range of possible impairments
or losses of a body function, or
disfigurements, as the case may be, fairly
described as being more than significant or
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marked, and as being at least very
considerable;
(d) a mental or behavioural disturbance or
disorder is not to be held to be severe for the
5 purposes of section 335(2) unless--
(i) the pain and suffering consequence; or
(ii) the loss of earning capacity
consequence--
is, when judged by comparison with other
10 cases, in the range of possible mental or
behavioural disturbances or disorders, as the
case may be, fairly described as being more
than serious to the extent of being severe;
(e) if a worker relies upon paragraph (a), (b)
15 or (c) of the definition of serious injury in
subsection (1), the Authority or self-insurer
must not issue a certificate under section
335(2)(c), and a court must not grant leave
under section 335(2)(d), on the basis that the
20 worker has established the loss of earning
capacity required by paragraph (b) unless the
worker establishes in addition to the
requirements of paragraph (c) or (d), as the
case may be, that--
25 (i) at the date of a decision under section
335(2)(c) or at the date of the hearing
of an application under section
335(2)(d), the worker has a loss of
earning capacity of 40 per cent or more,
30 measured (except in the case of a
worker referred to in item 1 of
Schedule 2 or a worker under the age of
26 years at the date of the injury) as set
out in paragraph (f); and
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(ii) the worker (including a worker referred
to in item 1 of Schedule 2 or a worker
under the age of 26 years at the date of
the injury) will, after the date of the
5 decision or of the hearing, continue
permanently to have a loss of earning
capacity which will be productive of
financial loss of 40 per cent or more;
(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 greater,
20 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 have earned
25 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 fairly
reflects the worker's earning capacity
30 had the injury not occurred;
(g) a worker does not establish the loss of
earning capacity required by paragraph (b) if
the worker, taking into account the worker's
capacity for suitable employment after the
35 injury and, where applicable, the
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reasonableness of the worker's attempts to
participate in rehabilitation or retraining--
(i) has; or
(ii) after rehabilitation or retraining, would
5 have--
a capacity for any employment including
alternative employment or further or
additional employment which, if exercised,
would result in the worker earning more than
10 60 per cent of gross income from personal
exertion as determined in accordance with
paragraph (f) had the injury not occurred;
(h) the psychological or psychiatric
consequences of a physical injury are to be
15 taken into account only for the purposes of
paragraph (c) of the definition of serious
injury and not otherwise;
(i) the physical consequences of a mental or
behavioural disturbance or disorder are to be
20 taken into account only for the purposes of
paragraph (c) of the definition of serious
injury and not otherwise;
(j) the assessment of serious injury must be
made at the time that the application is heard
25 by the court, unless sections 348 and 358
apply;
(k) the monetary thresholds and statutory
maximums specified by or under section 340
must be disregarded for the purposes of the
30 assessment of serious injury.
326 Actions for damages
A worker who is, or the dependants of a worker
who are, or may be, entitled to compensation in
respect of an injury arising out of, or in the course
35 of, or due to the nature of, employment must not,
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in proceedings in respect of the injury, recover
any damages for pecuniary or non-pecuniary loss
except--
(a) if the injury arises from a transport
5 accident--
(i) in accordance with the Transport
Accident Act 1986 and sections 343
and 347(1) of this Act; or
(ii) in accordance with Part III of the
10 Wrongs Act 1958, subject to and in
accordance with the Transport
Accident Act 1986 and section
366(7)(a) and (b) of this Act; or
(b) in proceedings, in accordance with
15 sections 343 and 347(1), to which the
employer is not a party if--
(i) by reason of section 46(1), the injury is
deemed to have arisen out of, or in the
course of, employment; and
20 (ii) the worker's place of employment is a
fixed place of employment; and
(iii) the injury did not occur while the
worker was present at that fixed place
of employment; or
25 (c) as permitted by and in accordance with this
Division, Division 3 or section 366.
327 Actions for damages--serious injury
Subject to this Division, a worker may recover
damages in respect of an injury arising out of, or
30 in the course of, or due to the nature of,
employment if the injury is a serious injury.
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328 Proceedings under this Division
(1) Subject to subsection (3), a worker may not bring
proceedings in accordance with this Division
unless--
5 (a) a determination of the degree of impairment
of the worker has been made under
Division 4 of Part 5 of this Act or under
section 104B of the Accident
Compensation Act 1985 and the worker has
10 made an application under subsection (2) of
this section; or
(b) subject to any directions given by the
Minister under section 352, the worker elects
to make an application under subsection (2)
15 on the ground that the worker has a serious
injury.
(2) Subject to subsection (3), a worker may make an
application under this subsection--
(a) if subsection (1)(a) applies, only after the
20 worker--
(i) has advised the Authority or self-
insurer under section 205(3) or 206(3)
of this Act or under section 104B(6B)
or (7B) of the Accident Compensation
25 Act 1985 that he or she accepts the
determinations of degree of
impairment; or
(ii) has received the advice of the Authority
or self-insurer under section 207(3) of
30 this Act or under section 104B(10) of
the Accident Compensation Act 1985;
or
(b) if subsection (1)(b) applies, only after a
period of at least 18 months has elapsed
35 since the event or circumstance giving rise to
the injury occurred.
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(3) If a worker has made a claim for compensation
under Division 5 of Part 5 or under section 98C of
the Accident Compensation Act 1985 in respect
of an injury, the worker must not make an
5 application under subsection (2) in respect of that
injury unless--
(a) the degree of impairment resulting from the
injury has been determined in accordance
with Division 4 of Part 5 or under
10 section 104B of the Accident
Compensation Act 1985; and
(b) the worker has accepted the determination of
the degree of impairment; and
(c) the worker has accepted the entitlement to
15 compensation.
(4) An application under subsection (2) must--
(a) be in a form approved by the Authority; and
(b) be accompanied by an authority in a form
approved by the Authority, signed by the
20 worker, authorising the release of medical
information to the Authority or a self-insurer
relevant to the application; and
(c) be accompanied by--
(i) a copy of all medical reports; and
25 (ii) affidavits attesting to other material--
existing when the application is made 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
30 which the worker intends to adduce in
evidence, in proceedings in accordance with
this section or in any related proceedings.
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(5) An authority to release information referred to in
subsection (4)(b) has effect and cannot be revoked
by the worker--
(a) until all proceedings brought in accordance
5 with this Division have been heard and
determined or compromised; or
(b) the worker withdraws his or her application.
(6) A copy of--
(a) any claim under Division 4 of Part 5 or under
10 section 104B of the Accident
Compensation Act 1985 resulting in a
determination referred to in subsection (1);
and
(b) an application under subsection (2)--
15 must be served on each person against whom the
applicant claims to have a cause of action.
(7) If a worker suffers an injury referred to in
section 5(2)--
(a) this Division applies; and
20 (b) the worker cannot make an application under
Division 8A of Part IV of the Accident
Compensation Act 1985.
329 Medical examination
If the worker--
25 (a) unreasonably refuses to comply with a
request by the Authority or self-insurer that
the worker submit to a medical examination
to be paid for by the Authority or self-
insurer; or
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(b) in any way hinders such a medical
examination--
the period between the date on which the worker
so refused to comply, or hindered the medical
5 examination, and the date of the medical
examination must be disregarded in calculating
the period referred to in section 330(1).
330 Authority or self-insurer to respond to application
(1) The Authority or self-insurer must, within
10 120 days (or such other period as may be specified
in directions given under section 352) of receiving
the application, advise the worker in writing--
(a) that the worker is deemed to have a serious
injury; or
15 (b) if the worker is not deemed to have a serious
injury, whether or not the Authority or self-
insurer will issue a certificate under
section 335(2)(c).
(2) The advice referred to in subsection (1)(a) must be
20 accompanied by--
(a) a copy of all medical reports; and
(b) affidavits attesting to such other material--
existing when the advice is given and--
(c) of which the employer, Authority or self-
25 insurer or the legal representative of any of
them is aware; and
(d) on which the employer, Authority or self-
insurer intends to rely or the substance of
which the employer, Authority or self-
30 insurer intends to adduce in evidence in
proceedings brought by the worker in
accordance with this Division or in any
related proceedings.
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(3) If the Authority or self-insurer fails to advise the
worker in writing within the period referred to in
subsection (1) as required by that subsection, the
worker is deemed to have suffered a serious
5 injury.
331 Response by applicant
The worker, within 28 days after receiving the
advice referred to in section 330(1) and (2), may
give to the Authority or self-insurer an affidavit
10 attesting to any further material (whether or not
existing before the worker made the application
under section 328(2)) in rebuttal of the material
(other than medical reports) attested to in
affidavits accompanying the advice.
15 332 Certain material not admissible in proceedings
In proceedings in accordance with this Division, a
medical report or other material is inadmissible in
evidence--
(a) on behalf of the Authority or self-insurer if--
20 (i) it was in existence, and the employer,
Authority or self-insurer, or the legal
representative or any of them, was
aware of it before the date by which the
advice of the Authority or self-insurer
25 is required to be given under section
330(1) and (2); and
(ii) it had not been disclosed to the worker
in accordance with section 330; or
(b) on behalf of the worker if--
30 (i) it was in existence, and the worker or
the worker's legal representative was
aware of it, before the expiration of
28 days after receiving the advice under
section 330; and
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(ii) it had not been disclosed to the other
party in accordance with section 328(4)
or in an affidavit under section 331.
333 Conference before proceedings commence
5 (1) Subject to subsection (2), the worker must not
commence proceedings in accordance with this
Division unless--
(a) the worker and the Authority or self-insurer
hold, or begin, a conference within 21 days
10 after the response date; and
(b) the Authority or self-insurer makes a
statutory offer in writing in settlement or
compromise of the claim at that conference,
or after the conference begins but no later
15 than 60 days after the response date; and
(c) if the worker does not accept that statutory
offer within 21 days after it is made, the
worker, before the expiration of that period,
makes a statutory counter offer in writing in
20 settlement or compromise of the claim; and
(d) the Authority or self-insurer does not accept
that statutory counter offer within 21 days
after it is made; and
(e) the proceedings are commenced--
25 (i) not earlier than 21 days, and not more
than 51 days, after the statutory counter
offer is made; or
(ii) if a statutory counter offer is deemed to
have been made under section 334(2),
30 not more than 30 days after the day on
which the statutory counter offer is
deemed to have been made.
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(2) Subsection (1) does not apply to--
(a) an application under 335(2)(d); or
(b) the commencement of proceedings with the
consent of the Authority under section 337.
5 334 Statutory offer and counter offer
(1) If the Authority or self-insurer does not make a
statutory offer under section 333, the Authority or
self-insurer is deemed, for the purposes of that
section, to have made, on the 60th day after the
10 response date, a statutory offer of nothing.
(2) If--
(a) the Authority or self-insurer makes a
statutory offer under section 333; and
(b) the worker does not make a statutory counter
15 offer under that section--
the worker is deemed, for the purposes of that
section, to have made, on the 21st day after the
statutory offer was made, a statutory counter offer
of the maximum amounts that may be awarded as
20 damages under section 340(a) and (b).
335 Proceedings for damages for serious injury
(1) If the assessment under Division 4 of Part 5 or
under section 104B of the Accident
Compensation Act 1985, made before an
25 application under section 328(2) of this Act is
made, of the degree of impairment of the worker
as a result of the injury is 30 per cent or more, the
injury is deemed to be a serious injury.
(2) If--
30 (a) the assessment under Division 4 of Part 5 or
under section 104B of the Accident
Compensation Act 1985 of the degree of
impairment of the worker as a result of the
injury is less than 30 per cent; or
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(b) the worker makes an application under
section 328(2)(b)--
the worker may not bring proceedings for the
recovery of damages in respect of the injury
5 unless--
(c) the Authority or self-insurer--
(i) is satisfied that the injury is a serious
injury; and
(ii) issues to the worker a certificate in
10 writing consenting to the bringing of
the proceedings; or
(d) a court, other than the Magistrates' Court,
gives leave to bring the proceedings on the
application of the worker made--
15 (i) within 30 days after the worker
received advice under section 330(1);
or
(ii) after that period, with the consent of the
Authority under section 337(1).
20 (3) For the purposes of subsection (2), a worker who
satisfies subparagraph (i) of section 325(2)(b) but
not subparagraph (ii) of that subsection, is entitled
to bring proceedings in accordance with
subsection (2)(d) of this section for the recovery
25 of damages for pain and suffering only.
(4) A copy of an application under subsection (2)
must be served on the Authority or self-insurer
and on each person against whom the applicant
claims to have a cause of action.
30 (5) For the purposes of subsection (2)(d)--
(a) a court, other than the Magistrates' Court,
must not give leave unless it is satisfied on
the balance of probabilities that the injury is
a serious injury; and
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(b) for the purposes of proving a loss of earning
capacity in accordance with subsection
325(2), a worker bears the onus of proving--
(i) any inability to be retrained or
5 rehabilitated or to undertake suitable
employment or any employment
including alternative or further or
additional employment; and
(ii) the extent of that inability.
10 336 Finding on an application does not give rise to issue
estoppel
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 proceedings
15 for the recovery of damages brought in
accordance with this Division.
337 Authority may consent to bringing of proceedings
(1) If, on the application of a worker, the Authority is
satisfied that--
20 (a) the worker is unable to commence
proceedings in accordance with this Division
because of the operation of section
335(2)(d); and
(b) the failure to comply with section 335(2)(d)
25 was not due to any fault or omission of the
worker or the worker's legal representative--
the Authority may consent to the bringing of an
application under section 335(2)(d).
(2) If the Authority is satisfied that a worker is unable
30 to commence proceedings in accordance with this
Division because of the operation of section 333,
on the application of the worker, the Authority
may consent to the commencement of
proceedings--
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(a) either--
(i) earlier than 21 days after the date the
statutory counter offer is made; or
(ii) later than 51 days, but no later than
5 81 days, after that date--
if the Authority is satisfied that the defence
of the proceedings will not be prejudiced; or
(b) later than 81 days after the date the statutory
counter offer is made if the Authority is
10 satisfied that the failure to comply with
section 333 was not due to any fault or
omission of the worker or the worker's legal
representative.
338 No further application allowed
15 If a worker makes an application under
section 328(2) in respect of an injury, the worker
must not make a further application under that
subsection in respect of that injury.
339 Worker not entitled to recover damages for same
20 injury despite review of degree of impairment
If, after a worker has failed to satisfy a court that
an injury is a serious injury on an application for
leave to bring proceedings in accordance with
section 335(2)(d), the worker obtains under
25 Division 4 of Part 5 or under section 104B of the
Accident Compensation Act 1985
determinations that the degree of impairment of
the worker in respect of that injury is 30 per cent
or more, the worker is not entitled to recover
30 damages for that injury.
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340 Proceedings--limitations on awards
A court must not, in proceedings in accordance
with this Division, award to a worker in respect of
an injury--
5 (a) pecuniary loss damages--
(i) if the total pecuniary loss damages
assessed, before the reduction (if any)
under section 26(1) of the Wrongs Act
1958 and before the reduction (if any)
10 under section 343(1), is less than
$56 650 or that amount as varied in
accordance with Division 1 of Part 13
as at the date of the award; or
(ii) in excess of $1 275 570 or that
15 amount as varied in accordance with
Division 1 of Part 13 as at the date of
the award; or
(b) damages for pain and suffering--
(i) if the total damages for pain and
20 suffering assessed, before the reduction
(if any) under section 26(1) of the
Wrongs Act 1958 and before the
reduction (if any) under section 343(1),
is less than $54 730 or that amount as
25 varied in accordance with Division 1 of
Part 13 as at the date of the award; or
(ii) in excess of $555 350 or that amount as
varied in accordance with Division 1 of
Part 13 as at the date of the award; or
30 (c) damages of any other kind, other than
damages in the nature of interest.
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341 Jury not to be informed of certain matters
In the trial of a proceeding brought under this
Division, a jury must not be informed--
(a) of the monetary thresholds and statutory
5 maximums specified by or under
section 340; or
(b) that any injury in respect of which the
proceeding has been brought has been
deemed, found, or required to be found, to be
10 a serious injury; or
(c) that the Authority or self-insurer has been
satisfied that the injury is a serious injury; or
(d) that the Authority or self-insurer has issued a
certificate under section 335(2)(c).
15 342 Limitation on damages in respect of pecuniary loss
Damages awarded under this Division in respect
of pecuniary loss must not include damages in
respect of--
(a) any loss suffered or that may be suffered as a
20 result of the incurring of costs or expenses of
a kind referred to in Division 7 of Part 5; or
(b) the value of services of a domestic nature or
services relating to nursing and attendance--
(i) which have been or are to be provided
25 by another person to the person in
whose favour the award is made; and
(ii) for which the person in whose favour
the award is made has not paid and is
not and will not be liable to pay.
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343 Judgments, order for damage, settlement or
compromise to be reduced by certain amounts of
compensation paid
(1) If a judgment, order for damages, settlement or
5 compromise is made or entered in favour of a
worker or the dependants of a worker in respect of
proceedings referred to in section 326 in respect
of an injury, the amount of the judgment, order for
damages, settlement or compromise must be
10 reduced by--
(a) to the extent that it is in respect of pecuniary
loss, the amount of compensation (if any)
paid in respect of the injury otherwise than
under Division 5 of Part 5 or section 224,
15 228 or 229 or to the extent that section
93(10)(a) of the Transport Accident Act
1986 applies, except any such compensation
paid in respect of the whole or any part of
the period of 18 months after the relevant
20 transport accident;
(b) to the extent that it is in respect of non-
pecuniary loss, the amount of compensation
(if any) paid in respect of the injury under
Division 5 of Part 5 or under section 98C
25 or 98E of the Accident Compensation Act
1985.
(2) If the amount of a judgment is subject to a
reduction under subsection (1), that reduction
must be made before the reduction (if any) under
30 section 26(1) of the Wrongs Act 1958 is made.
344 Costs
(1) Subject to the rules of the court--
(a) in proceedings relating to an application for
leave of the court under section 335(2)(d),
35 costs are to be awarded against a party
against whom a decision is made; and
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(b) unless subsection (2) applies in proceedings
for the recovery of damages in accordance
with this Division--
(i) if no liability to pay damages is
5 established, costs are to be awarded
against the claimant; and
(ii) if damages are assessed but cannot be
awarded under this Division, each party
bears its own costs; and
10 (iii) if damages are awarded, costs are to
be awarded against the Authority or
self-insurer.
(2) In proceedings for the recovery of damages
commenced in accordance with this Division after
15 a statutory offer was made, or deemed to have
been made, under section 333 or 334--
(a) if no liability to pay damages is established,
the worker must pay the party and party
costs of the employer, Authority or self-
20 insurer and the worker's own costs; or
(b) if judgment is obtained or a settlement or
compromise is made in an amount not less
than 90 per cent of the worker's statutory
counter offer under section 333 and more
25 than the statutory offer of the Authority or
self-insurer, the Authority or self-insurer
must pay the worker's party and party costs
and its own costs; or
(c) if judgment is obtained or a settlement or
30 compromise is made in an amount not more
than the statutory offer of the Authority or
self-insurer under section 333, the worker
must pay the party and party costs of the
Authority or self-insurer and the worker's
35 own costs; or
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(d) if judgment is obtained or a settlement or
compromise is made in an amount that is
more than the statutory offer of the Authority
or self-insurer under section 333 but less
5 than 90 per cent of the worker's statutory
counter offer under that subsection, each
party bears its own costs--
and the court must not otherwise make an order as
to costs.
10 (3) For the purposes of determining a liability to pay
costs, or an entitlement to be paid costs, under
subsection (2)(b), (c) or (d), if the amount of a
judgment, order for damages, settlement or
compromise is required to be reduced under
15 section 343(1), the amount of the reduction must
be the amount of compensation paid--
(a) to the date of the statutory counter offer
under section 333; or
(b) to the date of the deemed statutory counter
20 offer under section 334(2).
(4) A reduction under subsection (3) must be made
before the reduction (if any) under section 26(1)
of the Wrongs Act 1958 is made.
(5) For the purpose of the taxing of costs in
25 proceedings to which this Division applies, any
applicable scale of costs has effect as if amounts
in the scale were reduced by 20 per cent.
(6) A person who represents or acts on behalf of a
worker is not entitled--
30 (a) to recover any costs from that worker in
respect of any proceedings under this
Division; or
(b) to claim a lien in respect of those costs; or
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(c) to deduct those costs from any sum awarded
as damages--
unless an award of costs has been made by the
court in respect of those costs or those costs are
5 payable in accordance with this Division by the
worker.
(7) The court, on the application of--
(a) the worker; or
(b) the person representing or acting on behalf of
10 the worker--
may determine the amount of costs to be awarded
to the person representing or acting on behalf of
the worker.
345 Present value of future loss to be qualified
15 (1) Where an award of damages in accordance with
this Division is to include an amount, assessed as
a lump sum, in respect of damages for future loss
which is referable to--
(a) deprivation or impairment of earning
20 capacity; or
(b) loss of the expectation of financial support;
or
(c) a liability to incur expenditure in the future;
or
25 (d) any loss suffered by a dependant--
the present value of the future loss must be
qualified by adopting a discount rate of 6 per cent
in order to make appropriate allowance for
inflation, the income from investment of the sum
30 awarded and the effect of taxation on that income.
(2) Except as provided by subsection (1), nothing in
that subsection affects any other law relating to
the discounting of sums awarded as damages.
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346 Limitation on award of interest on an amount of
damages
(1) A court must not, in relation to an award of
damages in accordance with this Division, order
5 the payment of interest, and interest is not
payable, on any amount of damages, other than
damages referable to loss actually suffered before
the date of the award, in respect of the period from
the date of the death of or injury to the person in
10 respect of whom the award is made to date of the
award.
(2) Except as provided by subsection (1), nothing in
that subsection affects any other law relating to
the payment of interest on any amount of
15 damages, other than special damages.
347 When Authority, employer and self-insurer cease to
be liable to pay weekly payments
(1) If judgment is obtained, or a compromise or
settlement made in respect of proceedings referred
20 to in section 326 in respect of an injury, the
Authority, the employer or self-insurer is not
liable--
(a) where pecuniary loss damages are awarded,
to pay weekly payments in respect of the
25 injury; or
(b) where damages for pain and suffering are
awarded, to make payments under Division 5
of Part 5 or under section 98C of the
Accident Compensation Act 1985 in
30 respect of the injury.
(2) If--
(a) judgment is obtained or a compromise or a
settlement is made in respect of proceedings
referred to in section 326; and
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(b) the worker was, at the date of the judgment,
compromise or settlement, still in receipt of
compensation in the form of weekly
payments; and
5 (c) pecuniary loss damages are 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
10 or settlement, pay to the worker a weekly amount
equal to the net weekly amount that, but for
subsection (1), would have been payable to the
worker as compensation in the form of weekly
payments in respect of the injury.
15 (3) Subsection (2) applies only in respect of
proceedings referred to in section 326 against a
sole defendant if that sole defendant was the
worker's employer at the date of the injury the
subject of the proceedings.
20 (4) An amount paid in accordance with subsection (2)
is, to the extent of the payment, part satisfaction of
the liability in respect of the judgment, settlement
or compromise.
348 Determination of serious injury application after
25 death of worker
(1) This section applies if--
(a) a worker dies; and
(b) before his or her death, the worker had made
an application under section 328(2); and
30 (c) at the time of the worker's death--
(i) the application of the worker was
pending; or
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(ii) the worker had issued proceedings
seeking the leave of the court to
commence proceedings following the
rejection of the application of the
5 worker by the Authority or a self-
insurer; or
(iii) the period specified in section
335(2)(d) within which a worker is
required to institute proceedings had
10 not expired; and
(d) the worker's death was not caused or
materially contributed to by the injury which
is the subject of the application under
section 328(2); and
15 (e) the worker left a dependant or dependants.
(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 worker had the
20 worker not died--
(i) in respect of an application made by the
worker under section 328(2) before his
or her death; or
(ii) in respect of an application referred to
25 in section 335(2)(d), within the
unexpired period of time that would
have been available to the deceased, or
after that period with the consent of the
Authority under section 337(1); and
30 (b) if an application under section 328(2) was
pending at the time of 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
35 whether, as at the date the application was
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served, the worker had a serious injury
assessed in accordance with this section; and
(c) any right arising from a determination by a
Court, the Authority or a self-insurer that a
5 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 survives for the benefit of
10 the deceased worker's estate.
(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 accordance with
15 section 325(2) 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 application was served by
20 the worker before his or her death under
section 328(2).
(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
25 section 328(2), notwithstanding anything to the
contrary in this Division, the legal personal
representative of the deceased worker may bring
proceedings for the recovery of--
(a) damages for pain and suffering in respect of
30 the injury; and
(b) if the deceased worker's application
established the matters specified in section
325(2)(e), (f) and (g), pecuniary loss
damages in respect of the injury--
35 from the date the injury was sustained to the date
of death of the worker.
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(6) For the purposes of subsection (5)(b)--
(a) section 325(2)(e) applies as if a reference to
"the date of the hearing of an application"
were a reference to the date on which the
5 application under section 328(2) was served;
and
(b) section 325(2)(f) applies as if a reference to
"that date" were a reference to the date on
which the application under section 328(2)
10 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 section 328(2);
15 and
(b) evidence that would have otherwise been
admissible under this Division.
(8) A reference to service of an application under
section 328(2) in this section means the service of
20 an application in accordance with directions given
by the Minister under section 352.
(9) In this section, dependant means a person who at
the time of the death of the worker referred to in
subsection (1)--
25 (a) was wholly, mainly or partly dependent on
the earnings of the worker; or
(b) would have been wholly, mainly or partly
dependent on the earnings of the worker but
for--
30 (i) the incapacity of the worker resulting
from, or materially contributed to by,
the serious injury the subject of the
application; or
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(ii) any incapacity of the worker due to the
injury or disease which caused or
materially contributed to the worker's
death.
5 349 Calculation of limitation of actions period within
which proceedings may be commenced
For the purpose of calculating the period of time
under the Limitation of Actions Act 1958 within
which proceedings permitted by, and in
10 accordance with, this Division may be
commenced, the following periods of time are to
be disregarded--
(a) if the degree of permanent impairment of the
worker resulting from the injury is to be
15 determined, the period of time commencing
on the day a claim for compensation under
Division 5 of Part 5 or under section 98C of
the Accident Compensation Act 1985 is
lodged and ending 30 days after--
20 (i) the Authority or self-insurer advises the
worker of the determination under
section 201(1) or 206 or under
section 104B of the Accident
Compensation Act 1985; or
25 (ii) the Authority or self-insurer notifies the
worker of the decision of the Medical
Panel--
whichever is applicable;
(b) if the worker elects to make an application
30 under section 328(2), the period of time
commencing on the day on which the
application is made and ending on the day on
which proceedings are commenced in
accordance with section 333(1)(e).
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350 Division not to affect date of accrual of cause of
action
For the avoidance of doubt, it is declared that, this
Division does not affect the date of accrual of a
5 cause of action for the purposes of the Limitation
of Actions Act 1958.
351 Effect of decision on application
A decision granting or refusing leave made on an
application made under section 335(2)(d) must be
10 taken not to be a judgment or order in an
interlocutory application for the purposes of an
appeal to the Court of Appeal.
352 Directions
(1) The Minister may give directions in accordance
15 with section 609 for or with respect to procedures
under this Division.
(2) For the purposes of section 328(1)(b), the Minister
may give directions in accordance with
section 609 specifying or limiting the classes of
20 cases or circumstances in which an election can be
made under that section.
(3) The directions may include directions about the
provision of information by affidavit and the
attending of conferences.
25 (4) The directions may specify that a failure to
comply with a particular provision of the
directions has the effect of altering a period
applicable under this Division.
(5) A person to whom a direction under this section
30 applies, and the legal representatives and agents of
such a person, must comply with the direction.
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353 Legal practitioner may recover costs
A legal practitioner acting on behalf of a worker
in respect of any claim, application or proceedings
under this Division is entitled to be paid legal
5 costs from the Authority or self-insurer of a kind
specified in a legal costs order made under this
Division.
354 Legal costs order
(1) The Governor in Council may by Order in
10 Council published in the Government Gazette
make a legal costs order--
(a) specifying the legal costs that may be
recovered from the Authority or self-insurer
by a legal practitioner acting on behalf of a
15 worker in respect of any claim, application
or proceedings under this Division, other
than section 348; and
(b) prescribing or specifying any matter or thing
required to give effect to the legal costs
20 order.
(2) A legal costs order--
(a) takes effect on and from the date on which it
is published in the Government Gazette or
any later date specified in the order; and
25 (b) applies to legal costs incurred on or after the
date of commencement of the order.
(3) A legal costs order may--
(a) apply generally or be limited in its
application by reference to classes of
30 proceedings, costs, circumstances or factors;
and
(b) apply differently according to different
circumstances or factors of a specified kind;
and
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(c) specify different methods of calculation
whether by reference to formulas, scales,
tables or other means; and
(d) apply, adopt or incorporate (with or without
5 modification) the provisions of any
document, code, standard, rule, specification
or method whether as formulated, issued,
prescribed or published at the time the order
is made; and
10 (e) authorise any specified person or body to
determine or apply a specified matter or
thing.
(4) Section 344(5) does not apply in proceedings to
which a legal costs order applies.
15 (5) This section and any legal costs order made under
this section has full force and effect
notwithstanding anything to the contrary in the
Legal Profession Act 2004, the Supreme Court
Act 1986, the County Court Act 1958 or the
20 Civil Procedure Act 2010 or in any regulation,
rules, order or other document made under any of
those Acts.
(6) Legal costs in respect of any claim, application or
proceeding referred to in subsection (1)(a) cannot
25 be recovered from the Authority or self-insurer
except in accordance with an order under this
section.
355 Litigated claims legal costs order--workers
(1) Subject to subsection (2), the Governor in Council
30 may by Order in Council published in the
Government Gazette make a litigated claims legal
costs order--
(a) specifying the legal costs that may be
recovered from the Authority or self-insurer
35 by a legal practitioner acting on behalf of a
worker in respect of any claim, application
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or proceedings under or in accordance with
this Division, other than section 348; and
(b) prescribing or specifying any matter or thing
required to give effect to the legal costs order
5 including procedures for resolving any
dispute that arises in relation to the costs
payable under the order.
(2) Before a litigated claims legal costs order is made
under subsection (1), the Minister must consult
10 with the Attorney-General and Treasurer.
(3) A litigated claims legal costs order--
(a) takes effect on and from the date on which it
is published in the Government Gazette or, if
a later date is specified in the order, that later
15 date; and
(b) applies to legal costs incurred on or after the
order takes effect; and
(c) must be reviewed by the Minister within
3 years after the order takes effect.
20 (4) Section 344(5) does not apply in proceedings to
which a litigated claims legal costs order under
subsection (1) applies.
(5) A litigated legal costs order under subsection (1)
may provide for the amounts of costs specified in
25 the order to be indexed in accordance with the all
groups consumer price index for Melbourne as
published by the Australian Bureau of Statistics.
(6) If a litigated claims legal costs order under
subsection (1) is in force, legal costs in respect of
30 any claim, application or proceeding referred to in
subsection (1) to which the order applies cannot
be recovered except in accordance with the order.
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(7) This section and any legal costs order made under
this section has full force and effect
notwithstanding anything to the contrary in the
Legal Profession Act 2004, the Supreme Court
5 Act 1986, the County Court Act 1958 or the
Civil Procedure Act 2010 or in any regulation,
rules, order or other document made under any of
those Acts.
356 Litigated claims legal costs order--Authority and
10 self-insurers
(1) Subject to subsection (2), the Governor in Council
may by Order in Council published in the
Government Gazette make a litigated claims legal
costs order--
15 (a) specifying the legal costs that may be
recovered from a worker by a legal
practitioner acting on behalf of the Authority
or self-insurer in respect of any claim,
application or proceedings under or in
20 accordance with this Division, other than
section 348; and
(b) prescribing or specifying any matter or thing
required to give effect to the legal costs order
including procedures for resolving any
25 dispute that arises in relation to the costs
payable under the Order.
(2) Before a litigated claims legal costs order is made
under subsection (1), the Minister must consult
with the Attorney-General and Treasurer.
30 (3) A litigated claims legal costs order--
(a) takes effect on and from the date on which it
is published in the Government Gazette or, if
a later date is specified in the order, that later
date; and
35 (b) applies to legal costs incurred on or after the
order takes effect; and
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(c) must be reviewed by the Minister within
3 years after the order takes effect.
(4) Section 344(5) does not apply in proceedings to
which a litigated claims legal costs order under
5 subsection (1)(a) applies.
(5) If a litigated claims legal costs order under
subsection (1)(a) is in force, legal costs in respect
of any claim, application or proceeding referred to
in subsection (1)(a) to which the order applies
10 cannot be recovered except in accordance with the
order.
(6) This section and any legal costs order made under
this section has full force and effect
notwithstanding anything to the contrary in the
15 Legal Profession Act 2004, the Supreme Court
Act 1986, the County Court Act 1958 or the
Civil Procedure Act 2010 or in any regulation,
rules, order or other document made under any of
those Acts.
20 Division 3--Actions by terminally ill workers or workers
with asbestos-related conditions
357 Actions by terminally ill workers or workers with
asbestos related conditions
(1) This section applies if a worker who may have an
25 entitlement to recover damages in accordance
with Division 2--
(a) in respect of an injury arising out of or in the
course of, or due to the nature of,
employment believes that that injury or an
30 unrelated medical condition or injury gives
rise to an imminent risk of death; or
(b) in respect of an injury that is an asbestos-
related condition arising out of, or in the
course of, or due to the nature of,
35 employment.
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(2) If this section applies, the worker may, subject to
compliance with the requirements of this section,
bring proceedings in accordance with Division 2
without complying with the requirements of
5 sections 325(2), 326, 327, 338 and 344(1) and (2).
(3) If a worker commences proceedings under
Division 2 on the basis that this section applies,
the worker must within 30 days of the
commencement of the proceedings apply to an
10 Associate Judge of the Supreme Court--
(a) for an order allowing leave for the worker to
proceed nunc pro tunc; and
(b) for an order allowing an expedited hearing of
the proceedings if the injury gives rise to an
15 imminent risk of death of the worker.
Note
An order allowing leave to proceed nunc pro tunc deems
proceedings to have commenced before the order was made.
(4) The Associate Judge of the Supreme Court must
20 not grant the orders referred to in subsection (3)
unless the Associate Judge of the Supreme Court
is satisfied on the balance of probabilities that--
(a) if subsection (1)(a) applies, the injury arising
out of or in the course of, or due to the nature
25 of, employment or an unrelated medical
condition or injury gives rise to an imminent
risk of death of the worker; or
(b) if subsection (1)(b) applies, the injury arising
out of, or in the course of, or due to the
30 nature of, employment is an asbestos-related
condition.
(5) If the Associate Judge of the Supreme Court does
not grant the orders referred to in subsection (3),
the Associate Judge of the Supreme Court must
35 make an order that the proceedings be struck out
on the grounds that this section does not apply and
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that the proceedings have not been brought in
accordance with Division 2.
(6) If the Associate Judge of the Supreme Court does
grant the orders referred to in subsection (3), the
5 worker can only recover damages in accordance
with Division 2 if the worker establishes that the
worker has a serious injury within the meaning of
section 325(2).
(7) If the worker dies from the asbestos-related
10 condition before the hearing of the proceeding, it
is established for the purposes of subsection (6)
that the worker had a serious injury within the
meaning of section 325(2).
(8) In this section, asbestos-related condition has the
15 same meaning as it has in the Asbestos Diseases
Compensation Act 2008.
358 Actions by terminally ill workers continued after
death of worker
(1) This section applies if--
20 (a) a worker dies after serving proceedings
issued in reliance on section 357 to
commence proceedings, in accordance with
Division 2; and
(b) the worker's death was not caused or
25 materially contributed to by the injury to
which the proceedings relate; and
(c) at the time of the worker's death, the worker
had a dependant or dependants within the
meaning of section 348(9).
30 (2) If this section applies--
(a) the legal personal representative of the
deceased worker may continue the
proceedings referred to in subsection (1)(a);
and
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(b) proceedings referred to in subsection (1)(a)
are taken to be, and are limited to, an
application served under section 335(2)(d)
by the worker before the worker's death; and
5 (c) subject to paragraph (d), section 348
applies to the proceedings referred to in
subsection (1)(a); and
(d) despite section 348(3), (4) and (5), for the
purposes of the assessment of serious injury,
10 the assessment must be made as at the date
the proceedings referred to in subsection
(1)(a) were served.
Division 4--Administration by a trustee
359 Certain funds to be administered by trustee
15 If, on application to the County Court, the County
Court considers that it would be in the best
interests of a person that any payment of
compensation under this Act be paid to a trustee,
the compensation must be paid to a trustee
20 determined by the Court to be invested, applied or
otherwise dealt with for the benefit of the person
as the trustee thinks fit.
Division 5--Conduct of common law proceedings
360 Definitions
25 (1) In this Division--
common law insurer means an insurer, other than
the Authority, which is liable to indemnify a
defendant in whole or in part in respect of or
in relation to a common law proceeding;
30 common law proceeding means any suit or action
by a worker to recover damages in respect of
an injury, disease or death arising out of or in
the course of employment or due to the
nature of employment but does not include a
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claim, demand or application for
compensation under this Act;
defendant means the employer against whom a
common law proceeding has been brought or
5 made (as the case may be) by a worker;
worker includes a dependant of a worker.
361 Application of Division
(1) This Division applies to and in relation to all
common law proceedings brought or made (as the
10 case may be) on or after 1 July 2014 in respect of
which the Authority is liable to indemnify a
defendant in whole or in part under this Act, in
relation to an injury, disease or death caused to or
suffered by a worker that has arisen out of, or in
15 the course of any employment or is due to the
nature of employment in which the worker was
employed at any time.
(2) A defendant or a common law insurer may enter
into an agreement with the Authority that the
20 provisions of this Division do not apply to a
common law proceeding to which this Division
applies and the provisions of this Division do not
thereafter apply to the extent that they are
inconsistent with that agreement.
25 362 Apportionment of liability
Liability to pay damages and all costs recovered
or recoverable by a worker in a common law
proceeding must be apportioned between--
(a) the Authority; and
30 (b) all other persons under any legal liability in
respect of the injury the subject of the
proceeding; and
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(c) any common law insurer who is liable to
indemnify any such persons in respect of or
in relation to the common law proceeding--
in such manner as is, and upon such terms as are,
5 agreed or, in default of agreement, as are
determined in accordance with the provisions of
this Division by a court to be just and equitable.
363 Notice of proceedings
(1) The defendant in a common law proceeding made
10 or brought (as the case may be) on or after 1 July
2014 must give to the Authority notice in writing
of the proceeding within 14 days after the
defendant receives notice of the proceeding.
(2) The common law insurer in respect of the
15 common law proceeding must give to the
Authority notice in writing of the proceeding
within 14 days after the insurer receives notice of
the proceeding.
364 Conduct of defence
20 (1) The defendant or the common law insurer is not
entitled to conduct the defence of the common law
proceeding unless the defendant or common law
insurer, within 14 days after the last date for
giving notice under section 363 undertakes to the
25 Authority in writing that the defendant or common
law insurer, as the case requires, will conduct the
defence of the common law proceeding and--
(a) the Authority does not within 7 days after
receiving the undertaking give notice in
30 writing to the defendant or common law
insurer objecting to the defendant or
common law insurer conducting the defence;
or
(b) the court in which the common law
35 proceeding is brought at any time orders or
directs that the defendant or common law
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insurer is entitled to conduct the defence of
the common law proceeding under this
section.
(2) If the court considers that the interest of one of the
5 Authority, defendant or common law insurer in
conducting the defence in proceedings is
substantially greater than the interest of the other
of the Authority, defendant or common law
insurer, any order or direction under subsection
10 (1) must be in favour of the person with the
greater interest, unless the court considers it just
and equitable to provide otherwise.
(3) Subsection (1) does not prevent the defendant or
common law insurer conducting the defence of the
15 common law proceeding in accordance with its
legal entitlement to do so from the date the
defendant or common law insurer received notice
of the common law proceeding until the expiration
of the period set out in subsection (1)(a) but in so
20 conducting the defence, the defendant and
common law insurer must not settle or
compromise the common law proceeding without
the consent of the Authority.
(4) If a defendant or common law insurer is at any
25 time not entitled to conduct the defence of a
common law proceeding in accordance with this
section, the Authority or self-insurer may conduct
the defence.
(5) Subject to subsection (3), a person entitled to
30 conduct, and which conducts, the defence of a
common law proceeding in accordance with this
section--
(a) is liable to make full payment of all costs and
damages awarded or agreed to be paid to the
35 worker or other person bringing or making
(as the case may be) the common law
proceeding; and
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(b) is authorised by each person under any legal
liability in respect of the injury the subject of
the proceeding and each common law insurer
which is liable to indemnify any such person
5 in respect of or in relation to the proceeding
to make admissions, including admissions of
liability, and to agree to or compromise or
settle the common law proceeding; and
(c) must, on behalf of the defendant, adopt a
10 defence which has the intention of
minimizing the damages payable to the
worker, regardless of whether this defence
advantages or disadvantages the Authority,
the defendant or the common law insurer.
15 365 Order for apportionment of liability
(1) In default of agreement under section 362, the
Authority, the defendant and any common law
insurer may at any time before entry of judgment
in a common law proceeding, apply to the court in
20 which the common law proceeding is brought for
orders apportioning liability in respect of all
damages and costs recovered or recoverable in the
common law proceeding in accordance with that
section, including orders in respect of the payment
25 of all amounts required to be paid as a
consequence of any such apportionment.
(2) The court to which application is made under
subsection (1)--
(a) may give such directions in relation to
30 interlocutory orders for discovery, inspection
and better particulars and for the filing of
pleadings as it deems appropriate; and
(b) must hear and determine the application for
apportionment in such manner and at such
35 time as it deems appropriate.
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(3) If an application is not made under subsection (1),
the Authority, the defendant and any common law
insurer may apply to any court of competent
jurisdiction for orders apportioning liability in
5 respect of all damages and costs recovered or
recoverable in a common law proceeding in
accordance with section 362, including orders in
respect of the payment of all amounts required to
be paid as a consequence of any such
10 apportionment.
(4) The court to which application is brought under
subsection (3)--
(a) may give such directions in relation to
interlocutory orders for discovery, inspection
15 and better particulars and for the filing of
pleadings as it deems appropriate; and
(b) must hear and determine the claim for
apportionment in such manner and at such
time as it deems appropriate.
20 (5) An application to a court under subsection (3)
must be made within 12 months after the person
making the application received notice of the
entry of judgment, settlement or compromise of
the common law proceeding.
25 (6) An apportionment in accordance with this
Division is an apportionment in relation to--
(a) the amount of damages and costs awarded or
agreed to be paid in accordance with this
Division; and
30 (b) the costs of the conduct of the defence of the
common law proceedings.
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Division 6--Other actions and rights
366 Damages under Part III of Wrongs Act 1958
(1) A dependant of a worker may recover damages
under Part III of the Wrongs Act 1958 in respect
5 of the death of a worker arising otherwise than out
of a transport accident within the meaning of the
Transport Accident Act 1986.
(2) A court must not, in proceedings under Part III of
the Wrongs Act 1958, award damages in
10 accordance with subsection (1) in respect of the
death of a person in excess of $886 330.
(3) If an award of damages in accordance with
subsection (1) is to include an amount, assessed as
a lump sum, in respect of damages for future loss
15 which is referable to--
(a) deprivation or impairment of earning
capacity; or
(b) loss of the expectation of financial support;
or
20 (c) a liability to incur expenditure in the future;
or
(d) any loss suffered by a dependant--
the present value of the future loss must be
qualified by adopting a discount rate of 3 per cent
25 in order to make appropriate allowance for
inflation, the income from investment of the sum
awarded and the effect of taxation on that income.
(4) Except as provided in subsection (3), nothing in
that subsection affects any other law relating to
30 the discounting of sums awarded as damages.
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(5) A court must not, in relation to an award of
damages in accordance with this section, order the
payment of interest, and no interest is payable, on
any amount of damages, other than damages
5 referable to loss actually suffered before the date
of the award, in respect of the period from the date
of the death of the person in respect of whom the
award is made, to the date of the award.
(6) Except as provided in subsection (5), nothing in
10 that subsection affects any other law relating to
the payment of interest on any amount of
damages, other than special damages.
(7) If a judgment, order for damages, settlement or
compromise is made or entered in favour of a
15 dependant of a worker in respect of proceedings in
respect of the death of the worker--
(a) the amount of the judgment, order for
damages, settlement or compromise must be
reduced by the sum of the compensation
20 (if any) paid under section 236, 237, 239,
241 or 243 in respect of the death; and
(b) the Authority, the employer or self-insurer is
not liable to pay compensation, or further
compensation, in respect of the death.
25 367 Liability of Transport Accident Commission
(1) If--
(a) the Authority is required under this Act to
pay an amount of compensation in respect of
the death or injury of a worker arising out of
30 a transport accident within the meaning of
section 3 of the Transport Accident Act
1986; and
(b) the Transport Accident Commission would,
if no compensation were payable under this
35 Act in respect of the death or injury, have
been liable to make payments in respect of
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that death or injury under the Transport
Accident Act 1986--
the Transport Accident Commission, despite
anything to the contrary in the Transport
5 Accident Act 1986, is liable to make payment to
the Authority of an amount equal to the total
amount of compensation paid or payable under
this Act and any amount paid or payable under an
award of damages or in a settlement of a claim or
10 action for damages in respect of that death or
injury.
(2) If--
(a) a self-insurer has appointed the Transport
Accident Commission to be its agent under
15 section 392; and
(b) the self-insurer is required under this Act to
pay an amount of compensation in respect of
the death or injury of a worker arising out of
a transport accident within the meaning of
20 section 3 of the Transport Accident Act
1986; and
(c) the Transport Accident Commission would,
if no compensation were payable under this
Act in respect of the death or injury, have
25 been liable to make payments in respect of
that death or injury under the Transport
Accident Act 1986--
the Transport Accident Commission, despite
anything to the contrary in the Transport
30 Accident Act 1986, is liable to make payment to
the self-insurer of an amount equal to the total
amount of compensation paid under this Act in
respect of that death or injury, less an amount
equal to the employer's excess that would be
35 applicable under section 72 if the self-insurer were
not a self-insurer.
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(3) The Transport Accident Fund under the
Transport Accident Act 1986 may be applied for
the purpose of making any payment which the
Transport Accident Commission is liable to make
5 under this section.
368 Settlement between Transport Accident
Commission and the Authority
(1) If--
(a) the Transport Accident Commission is liable
10 to make a payment to the Authority in
accordance with section 367(1); or
(b) it appears to the Authority and the Transport
Accident Commission that the Transport
Accident Commission may become liable to
15 make further payments to the Authority in
accordance with that section--
the Transport Accident Commission and the
Authority may undertake a settlement of that
liability or potential liability to make payments in
20 accordance with that section.
(2) For the purposes of a settlement under subsection
(1) of a liability or potential liability, the
Authority and the Transport Accident
Commission may, despite section 367(1),
25 determine the value of that liability or potential
liability in any manner they think fit.
369 Indemnity by third party
(1) Where an injury or a death for which
compensation has been paid, or is or may be
30 payable, by the Authority, a self-insurer or an
employer was caused under circumstances
creating a liability in a third party to pay damages
in respect of the injury or death or that would have
created such a liability if the injury or death had
35 been caused in Victoria, the Authority, self-
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insurer or employer is entitled to be indemnified
by the third party in accordance with this section.
(2) In determining for the purposes of subsection (1)
whether an injury or death was caused under
5 circumstances creating a liability in a third party
to pay damages or that would have created such a
liability if the injury or death had been caused in
Victoria in respect of the injury or death,
Division 2 must not be taken into account.
10 (3) The amount which a third party is required to pay
as indemnity under subsection (1) is the lesser
of--
(a) the amount of compensation paid or payable
under this Act in respect of the injury or
15 death; and
(b) the amount calculated, were it not for the
provisions of this Act, the Transport
Accident Act 1986 and Parts VB, VBA
and X of the Wrongs Act 1958, in
20 accordance with the formula--
X
[A - (B + C)] ×
100
where--
A is the amount of damages (disregarding
the extent, if any, whereby any other
25 person's act, default or negligence
caused or contributed to the injury or
death) for pecuniary loss and non
pecuniary loss which the third party is
or would have been liable to pay in
30 respect of the injury or death;
B is the amount recovered or recoverable
by the Authority or self-insurer under
section 367 from the Transport
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Accident Commission otherwise than
under a settlement;
C is the amount paid by the third party in
respect of the injury or death to the
5 worker or the dependants of the worker
under any settlement of, or judgment in,
an action by the worker or dependants
of the worker against the third party;
X is the extent, expressed as a percentage,
10 whereby the third party's act, default or
negligence caused or contributed to the
injury or death.
(4) Judgment against or settlement by a third party in
an action by a worker, or dependants of a worker,
15 in respect of an injury or death referred to in
subsection (1) does not eliminate or diminish the
right of indemnity given by this section, except to
the extent provided in this section.
(5) A term of any contract that requires the employer
20 or has the effect of requiring the employer to
indemnify the third party in respect of any liability
that the third party has or may have under this
section is void.
(6) If--
25 (a) the Transport Accident Commission is liable
to make a payment to the Authority under
section 367(1) or to a self-insurer under
section 367(2) in respect of a death or injury;
and
30 (b) the Authority or self-insurer is entitled under
this section to be indemnified by a third
party in respect of the liability--
the entitlement of the Authority or self-insurer is
subrogated to the Transport Accident Commission
35 by virtue of this subsection.
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(7) 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
5 compensation under section 72(1), 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
10 (b) the employer gives the Authority the
employer's written consent to seek the
indemnity under this section on the
employer's behalf.
(8) If the Authority recovers an amount from a third
15 party on behalf of the employer that includes an
amount that represents the employer's liability to
pay compensation under section 72, the Authority
may, in its absolute discretion, decide how that
amount is to be disbursed.
20 (9) Any proceedings to seek review of a decision
made by the Authority under subsection (7) or (8)
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
25 not be brought, whether against the Authority or
otherwise.
370 Substantive law
For the avoidance of doubt, it is hereby declared
that all the provisions of Divisions 2 and 3 and
30 this Division contain matters that are substantive
law and are not procedural in nature.
371 Compensation for pain and suffering
(1) Despite anything to the contrary in Subdivision
(1) of Division 2 of Part 4 of the Sentencing Act
35 1991, a court must not exercise the powers
conferred by that Subdivision to make a
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compensation order within the meaning of that
Subdivision if the compensation would be for--
(a) a matter arising from discriminatory conduct
that constitutes an offence against
5 section 575; or
(b) a matter--
(i) arising from an injury or death in
respect of which it appears to the court
that the person has an entitlement to
10 any compensation under this Act; and
(ii) arising from an event that constitutes an
offence only against the Dangerous
Goods Act 1985, the Occupational
Health and Safety Act 2004 or the
15 Equipment (Public Safety) Act 1994
or any regulations made under any of
those Acts.
(2) For the purposes of subsection (1)(b)(i), a person
is not to be regarded as having an entitlement to
20 any compensation under this Act if the entitlement
would arise only under any or all of sections
224(1)(b) and (c) and 237 (only by virtue of
subsection (3)).
__________________
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PART 8--SELF-INSURERS
Division 1--General
372 Definitions
In this Part--
5 eligible subsidiary means--
(a) in relation to a self-insurer that is the
MAV, a participating corporation; and
(b) in relation to any other self-insurer or
body corporate, a wholly owned
10 subsidiary;
Note
Under section 409, if a body corporate that is an eligible
subsidiary of a self-insurer becomes a non-WorkCover
employer, for the purposes of this Part, the body corporate is
15 taken not to be an eligible subsidiary of the self-insurer for
the period that it is a non-WorkCover employer.
employer means an employer within the meaning
of section 3 and includes a holding company
which does not itself employ any workers
20 but an eligible subsidiary of which does;
holding company means--
(a) in relation to a participating
corporation, the MAV; and
(b) in relation to any other body corporate,
25 the body corporate of which the first-
mentioned body corporate is an eligible
subsidiary;
local government corporation means--
(a) a Council within the meaning of the
30 Local Government Act 1989; and
(b) a regional corporation under
section 196 of the Local Government
Act 1989; and
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(c) an Authority within the meaning of the
Water Act 1989 the members of which
must include a Councillor of a Council
within the meaning of the Local
5 Government Act 1989; and
(d) any other body corporate established or
formed for local government purposes;
MAV means the body corporate known as the
Municipal Association of Victoria
10 established under the Municipal
Association Act 1907;
participating corporation means a local
government corporation participating in a
scheme of self-insurance operated by the
15 MAV as a self-insurer;
relevant remuneration, of an employer that is a
body corporate, means the sum of the
remuneration paid or payable by the
employer and its eligible subsidiaries (if any)
20 that would be rateable remuneration if the
employer and those subsidiaries were
required to pay premiums under Part 10;
subsidiary has the same meaning as in the
Corporations Act;
25 wholly-owned subsidiary has the same meaning
as in the Corporations Act.
373 Student workers
Unless the contrary intention appears, nothing in
this Part applies in relation to the employment of a
30 student worker.
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374 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 local
government workers compensation self-insurance
5 scheme for the benefit of--
(a) the MAV; and
(b) participating corporations--
on such terms and conditions, subject to this Act,
that the MAV determines.
10 (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).
(3) This section must be read as one with the
15 Municipal Association Act 1907.
Division 2--Application for approval as self-insurer
375 Determination of eligibility to apply for approval as
self-insurer
(1) On the application by a body corporate, the
20 Authority may determine that the body corporate
is eligible to apply under section 376(1) for
approval as a self-insurer.
Note
A body corporate that is applying for the renewal of
25 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 unless the body corporate has
become an eligible subsidiary of another body corporate.
See section 376(2)(b).
30 (2) An application referred to in subsection (1) must
be in writing and accompanied by the fee
calculated in accordance with Schedule 6.
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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 and when they fall due.
5 (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 company within the meaning of the
Corporations Act that, when the application is
10 made, is not a registered foreign company within
the meaning of that Act).
(5) A determination under this section remains in
force for 12 months or such longer time as the
Authority, in its discretion, determines unless, in
15 the meantime--
(a) the Authority approves the body corporate as
a self-insurer; or
(b) the Authority refuses to approve the body
corporate as a self-insurer.
20 (6) In this section, claims liabilities means the value
as estimated by the Authority of the existing and
future financial liabilities of the body corporate
and its eligible subsidiaries under this Act or in
respect of damages at common law as permitted
25 by and in accordance with Division 2 of Part 7
(other than sections 348 to 356 inclusive) or
section 366 or any contribution in respect of such
damages under section 23B of the Wrongs Act
1958, in respect of injuries or deaths incurred or
30 suffered, or to be incurred or suffered, by workers
employed by the employer and its eligible
subsidiaries.
376 Application for approval as self-insurer
(1) Subject to subsection (2), a body corporate that is
35 an employer may apply in writing to the Authority
for approval as a self-insurer for--
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(a) workers employed by the body corporate;
and
(b) if the body corporate is a holding company,
workers employed by eligible subsidiaries of
5 the body corporate, other than a subsidiary
that is a non-WorkCover employer.
(2) A body corporate may only make an application
under subsection (1) if--
(a) a determination by the Authority under
10 section 375 is in force stating that the body
corporate is eligible to apply for approval as
a self-insurer; or
(b) the application is for the renewal of approval
as a self-insurer and the body corporate is--
15 (i) a self-insurer; and
(ii) not a subsidiary of another body
corporate (other than a foreign
company within the meaning of the
Corporations Act that, when the
20 application is made, is not a registered
foreign company within the meaning of
that Act); or
(c) the Authority has determined that the body
corporate will imminently cease to be an
25 eligible subsidiary of another body corporate
that is currently approved as a self-insurer.
(3) The MAV may apply in writing to the Authority
for approval as a self-insurer for--
(a) workers employed by it; and
30 (b) workers employed by local government
corporations which are proposed to be
participating corporations.
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(4) An application under this section must be
accompanied by any information required by the
Authority and the fee calculated in accordance
with Schedule 7.
5 Note
Under section 395(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.
(5) In the case of an application by the MAV, the
10 application must also be accompanied by--
(a) a copy of the proposed scheme of self-
insurance; and
(b) the name of the local government
corporations which are proposed to be
15 participating corporations.
(6) An application under this section remains 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
20 apply, that longer period.
377 Estimated relevant remuneration
(1) For the purposes of determining the assessment
remuneration of an employer under clause 2 of
Schedule 7 the Authority may estimate the
25 relevant remuneration that an employer and its
eligible subsidiaries will pay during a specified
period.
(2) The Authority may request from the employer any
information required by the Authority to make the
30 estimate, including the employer's own estimate of
the relevant remuneration of the employer and its
eligible subsidiaries.
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(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 its application for
5 approval as a self-insurer.
378 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 Schedule 7 on the
10 basis of the relevant remuneration of the applicant
as estimated by the Authority under section 377.
(2) At any time after the expiry of the period in
relation to which the estimate was made, the
Authority may request from the employer any
15 information required by the Authority to
determine the relevant remuneration paid or
payable by the applicant and its eligible
subsidiaries during that period.
(3) An employer must provide any information
20 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
made in accordance with subsection (5) or (6), as
25 appropriate, if--
(a) the relevant remuneration varies by 10 per
cent or more from that estimated by the
Authority; and
(b) either--
30 (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
decided to adjust the fee.
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(5) If the fee paid is less than the amount that would
have been payable had the relevant remuneration
been used to calculate the application fee, the
difference is payable by the employer to the
5 Authority and may be recovered by the Authority
as a debt payable to the Authority.
(6) If the fee paid is more than the amount that would
have been payable had the relevant remuneration
been used to calculate the application fee, the
10 difference must be reimbursed by the Authority to
the employer.
Division 3--Approval as self-insurer
379 Approval as self-insurer
(1) If an application is made by a body corporate
15 under section 376, the Authority may 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 company,
20 workers employed by the eligible
subsidiaries of the body corporate, other than
an eligible subsidiary that is a non-
WorkCover employer.
(2) If an application is made by the MAV under
25 section 376, the Authority may approve the MAV
as a self-insurer for--
(a) workers employed by the MAV; and
(b) workers employed by the local government
corporations which are proposed to be
30 participating corporations and are included in
the application.
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(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.
5 (4) In determining whether an employer is fit and
proper to be a self-insurer, the Authority must
have regard to the following matters--
(a) whether the employer is, and is likely to
continue to be, able to meet its liabilities as
10 and when they fall due;
(b) the resources, including employees, that the
employer has for the purpose of
administering claims for compensation;
(c) the incidence of injuries to workers,
15 including student workers, arising out of and
in the course of employment by the employer
and, if applicable, its eligible subsidiaries
and the cost of claims in respect of such
injuries;
20 (d) the safety of the working conditions for
workers, including student workers,
employed by the employer, and, if
applicable, by its eligible subsidiaries;
(e) if the application is for renewal of approval
25 as a self-insurer by an employer that is or has
at any time been 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
30 (ii) any terms or conditions of its approval
as a self-insurer; or
(iii) a Ministerial Order; or
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(iv) any other subordinate instrument made
under this Act or the regulations;
(f) such other matters as the Authority thinks fit.
380 Terms and conditions of approval
5 (1) An approval of an employer as a self-insurer--
(a) is subject to--
(i) the terms and conditions specified in a
Ministerial Order made under
subsection (3); and
10 (ii) the terms and conditions determined by
the Authority from time to time; and
(b) may be subject to compliance with a
condition precedent determined by the
Authority; and
15 (c) may be subject to a term or condition 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-
20 insurer is subject to a deemed condition that the
employer is under a contractual obligation that, if
it becomes a non-WorkCover employer, it will
make any payments in respect of tail claims
liabilities required to be made in accordance with
25 Part 9.
(3) The Minister may, by notice published in the
Government Gazette, make a Ministerial Order
setting out the terms and conditions to which the
approval of an employer as a self-insurer is
30 subject.
(4) Without limiting subsection (3), the Ministerial
Order must specify the following--
(a) the surcharge to be applied under
section 388(5);
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(b) the information to be included in a return
required to be submitted under section 389;
(c) the requirements of the contract of insurance
a self-insurer must have in respect of the
5 self-insurer's contingent liabilities.
381 Notice to be given to employer if application refused
(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
10 employer stating--
(a) the Authority's intention to refuse approval;
and
(b) the reasons for the intended refusal; and
(c) that the employer may, within 28 days after
15 receiving the notice, make a submission in
writing to the Authority in further support of
the application.
(2) If, within the time allowed under subsection
(1)(c), the Authority receives a written submission
20 from the employer in further support of the
application, the Authority must--
(a) consider the submission before deciding
whether or not to refuse to approve the
employer as a self-insurer; and
25 (b) give notice in writing to the employer of its
decision.
382 Period that approval has effect
(1) An approval of an employer as a self-insurer takes
effect from the date determined by the Authority
30 and notified in writing to the employer.
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(2) Unless revoked sooner, the approval of an
employer as a self-insurer has effect for--
(a) in the case of an employer that is not a self-
insurer immediately before the date the
5 approval takes effect, a period of 3 years;
and
(b) in the case of an employer that is a self-
insurer immediately before the approval
takes effect, a period of 4 years, unless the
10 Authority in its discretion determines that the
approval has effect for a period of 6 years.
(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
15 for a further period not exceeding 6 months.
(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
20 by the Authority but not later than 6 months after
the date on which the approval of the employer as
a self-insurer would otherwise cease.
383 Approval of new holding company as self-insurer
(1) If a self-insurer (the subsidiary) becomes an
25 eligible subsidiary of another body corporate
(the holding company), the Authority, in its
discretion, and on the application and request of
the subsidiary and the holding company, may,
subject to subsection (2)--
30 (a) approve the holding company as a self-
insurer; and
(b) revoke the approval of the subsidiary as a
self-insurer.
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(2) Subsection (1) does not apply unless the Authority
is satisfied that no substantive change has
occurred, and is not likely to occur, in relation to
the operation or management of the subsidiary as
5 a result of--
(a) the subsidiary becoming an eligible
subsidiary of the holding company; or
(b) the approval of the holding company as a
self-insurer.
10 (3) If the Authority approves a holding company as a
self-insurer under subsection (1)--
(a) the holding company is approved as a self-
insurer with effect from the date determined
by the Authority and notified to the holding
15 company; and
(b) the approval has effect only for the balance
of the period for which the subsidiary was
approved as a self-insurer.
384 Review of approval
20 (1) The Authority, at any time, may review the
approval of an employer as a self-insurer.
(2) Without limiting subsection (1), the Authority
may review the approval of an employer as a self-
insurer if--
25 (a) the employer is a holding company approved
as a self-insurer under this Part for workers
employed by its eligible subsidiaries and it
ceases to be the holding company in relation
to any of those eligible subsidiaries; or
30 (b) the employer is approved as a self-insurer for
workers employed by an eligible subsidiary
of the employer and that eligible subsidiary
ceases to be an eligible subsidiary of the
employer; or
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(c) an eligible subsidiary of the employer--
(i) becomes a non-WorkCover employer;
or
(ii) ceases to be a non-WorkCover
5 employer; or
(iii) is partly acquired by another company;
or
(d) the employer acquires an eligible subsidiary;
or
10 (e) the employer acquires all the shares in a
subsidiary in which it already holds shares;
or
(f) the employer ceases to hold all the shares in
a subsidiary; or
15 (g) the employer undergoes a corporate
restructure; or
(h) the employer acquires the assets or the
employees of another company but not the
company itself.
20 (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 meeting its
claim liabilities as and when they fall due; or
25 (b) the employer becomes the subsidiary of
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
30 Act); or
(c) having regard to the matters specified in
section 379(4), the Authority is no longer
satisfied that the employer is fit and proper
to be a self-insurer.
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(4) The Authority must review the approval of an
employer as a self-insurer if--
(a) the employer is under official management,
is commenced to be wound up or has ceased
5 to carry on business; or
(b) a receiver or receiver and manager is
appointed in respect of the property or part
of the property of the employer under the
Corporations Act; or
10 (c) the employer enters into a compromise or
scheme of arrangement with its creditors; or
(d) the employer is a target within the meaning
of the Corporations Act.
(5) If any of the circumstances referred to in
15 subsection (2), (3)(b) or (4) occur in relation to a
self-insurer, or an eligible subsidiary of a self-
insurer, the self-insurer must notify the Authority
in writing within 28 days of the occurrence of the
circumstances.
20 Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
385 Revocation of approval
25 (1) The Authority, in accordance with this section,
may revoke 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 meeting its
30 claims 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 the
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Corporations Act that is not a registered
foreign company within the meaning of that
Act); or
(c) having regard to the matters specified in
5 section 379(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 to
the Authority, requests that the approval be
10 revoked; or
(e) the employer has failed to comply with--
(i) this Act or the regulations; or
(ii) any terms or conditions of its approval
as a self-insurer; or
15 (iii) a Ministerial Order; or
(iv) any other subordinate instrument made
under this Act or the regulations.
(2) The Authority, in accordance with this section,
may revoke the approval of an employer as a self-
20 insurer if, on the basis of a review conducted
under section 384, the Authority is of the opinion
that the approval should be revoked.
(3) The Authority must not revoke the approval of an
employer as a self-insurer unless the Authority has
25 given not less than 28 days notice in writing to the
employer stating--
(a) the Authority's intention to revoke the
approval; and
(b) the reasons for the intended revocation; and
30 (c) that the employer may, within 28 days after
receiving the notice, make a written
submission to the Authority.
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(4) If the approval of the employer is revoked at the
request of the employer--
(a) subsection (3) does not apply; and
(b) the Authority may give the employer a
5 written notice of revocation at any time after
receiving the request.
(5) If, within the time allowed under subsection
(3)(c), the Authority receives a written submission
from the employer, the Authority must consider
10 the submission 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,
15 the Authority decides to revoke 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 immediately after the day
20 on which the notice of the revocation is given to
the employer.
386 Cost associated with revocation recoverable from
employer
(1) If the Authority revokes the approval of an
25 employer as a self-insurer under section 385, any
costs incurred by the Authority in relation to the
revocation are recoverable from the employer as a
debt due to the Authority.
(2) Without limiting subsection (1), the costs incurred
30 in relation to the revocation of the approval of an
employer as a self-insurer include the cost of any
actuarial services used to determine the
outstanding liabilities of the employer at the time
of revocation.
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387 Non-WorkCover employer ceases to be a
self-insurer
If an employer becomes a non-WorkCover
employer, the approval of the employer as a self-
5 insurer is revoked as from the date on which it
becomes a non-WorkCover employer.
Division 4--Contributions to WorkCover Authority Fund
388 Payment of contribution
(1) A self-insurer must pay contributions into the
10 WorkCover Authority Fund in accordance with
this section.
(2) The Authority may, in accordance with the
regulations, determine the amount of contributions
payable by a self-insurer having regard to the
15 relevant remuneration paid or payable during the
financial year and preceding financial year in
respect of that year and preceding year or any
quarter of that year or preceding year by the self-
insurer.
20 (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 following
dates in each year--
(a) 1 August;
25 (b) 1 November;
(c) 1 February;
(d) 1 May.
(4) The Authority may vary the date on which a
contribution by a self-insurer is due.
30 (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 Order in force
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under section 380(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
5 towards the costs referred to in section 513(5)(c),
(d), (f), (g) and (l) or towards the costs incurred by
the Authority in the administration of Division 2
of Part 6 or in meeting any liability incurred under
section 403.
10 389 Submission of return by self-insurer
(1) Each self-insurer must submit a return in
accordance with the Ministerial Order under
section 380(3) to enable the Authority to
determine the amount of contributions payable.
15 (2) A self-insurer must submit the return by the date
specified in the Ministerial Order.
Penalty: one penalty unit for each day the
offender is in default.
(3) A self-insurer must not submit a return which
20 contains any false material particulars.
Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.
25 Division 5--Review of contributions by self-insurers
390 Review of contributions
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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Division 6--Liability for claims for compensation
Subdivision 1--Liability of self-insurer
391 Self-insurer's liability to pay compensation
If--
5 (a) a worker, the dependants of a worker or the
members of a worker's family are entitled
to--
(i) compensation or any other payments,
under this Act (other than section 576
10 or 578) or the Accident Compensation
Act 1985 (other than section 242AB
or 242AD); or
(ii) damages at common law as permitted
by and in accordance with Division 2 of
15 Part 7 (other than sections 348 to 356
inclusive) or section 366 of this Act or
section 134AB or 135C of the Accident
Compensation Act 1985--
in respect of an injury or death incurred or
20 suffered by the worker; and
(b) at the time of the injury or death, the
worker's employer was a self-insurer or an
eligible subsidiary of a self-insurer--
the self-insurer is, subject to sections 398 and 403,
25 liable to pay the compensation or other payments.
392 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
30 powers of the self-insurer under this Act or the
Accident Compensation Act 1985.
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(2) If a self-insurer has appointed the Transport
Accident Commission as its agent and a right of
recovery arises under section 367(2) of this Act or
section 137(5B) of the Accident Compensation
5 Act 1985 in respect of an injury or death, the
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.
10 (3) Nothing in subsection (1) or any arrangement
entered into under this section affects the liability
of a self-insurer under this Act.
393 Liabilities of self-insurer to be guaranteed
(1) On and from the date that an employer's approval
15 as a self-insurer takes effect and until such time as
the Authority assumes liability for the tail claims
of the employer under section 407, the employer
must--
(a) ensure that there is in force at all times a
20 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 that the employer has ceased to
be an approved self-insurer; and
25 (b) have in force at all times a contract of
insurance in respect of its contingent
liabilities in accordance with the Ministerial
Order made under section 380(3) and no
other contract of insurance in respect of
30 those liabilities.
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(2) A guarantee referred to in subsection (1)(a),
must--
(a) be given by an ADI to or in favour of the
Authority; and
5 (b) be in a form approved by the Authority; and
(c) guarantee payment of amounts not less
than--
(i) one and one-half times the assessed
liability of the employer; or
10 (ii) $3 000 000--
whichever is the greater.
(3) For the purposes of subsection (2)(c)(i), the
assessed liability of an employer means--
(a) the sum of the actuarial value of the current,
15 non-current and contingent liabilities of the
employer in respect of injuries and deaths for
which the employer is liable under
section 391 to pay compensation or make
other payments; and
20 (b) the following amount--
(i) the sum of the actuarial value of the
current, non-current and contingent
liabilities of the employer for claims
expected to arise in the 12 months after
25 the assessment in respect of injuries and
deaths for which the employer would
be liable under section 391 to pay
compensation or make other payments;
less
30 (ii) the total amount expected to be paid by
the employer and its eligible
subsidiaries in relation to compensation
payable under section 391 and
compensation in respect of tail claims
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assumed by a self-insurer under
section 395, 396, 397 or 398 in the
12 months after the assessment.
Note
5 In the event that the amount referred to in
subparagraph (ii) exceeds the amount referred to in
subparagraph (i), the amount referred to in
paragraph (b) is $0.
(4) For the purposes of subsection (3), an assessment
10 of the liabilities of the employer must be carried
out at intervals of not more than one year--
(a) by an actuary approved by the Authority; and
(b) in accordance with guidelines made by the
Authority under section 410(1).
15 (5) For the purposes of an assessment under
subsection (4), the employer must--
(a) make provision in its accounts for current,
non-current and contingent liabilities in
respect of injuries or deaths referred to in
20 subsection (3)(a); and
(b) permit an actuary appointed by the Authority
to inspect the books of the employer.
(6) In this section, tail claim means--
(a) any claim for which an employer has
25 assumed the liability for, and the
responsibility for management of, under
section 395 or 396; and
(b) any claim of a body corporate that becomes
an eligible subsidiary of an employer for
30 which the employer has assumed liability
for, and responsibility for management of,
under section 397; and
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(c) any claim of a self-insurer that becomes a
subsidiary of another self-insurer for which
the second-mentioned self-insurer has
assumed liability for, and management of,
5 under section 398.
394 Payments by Authority
(1) This section applies if a Conciliation Officer,
VCAT or a court has directed or determined
that--
10 (a) compensation under this Act (other than
section 576 or 578) or the Accident
Compensation Act 1985 (other than
section 242AB or 242AD); or
(b) damages at common law as permitted by and
15 in accordance with Division 2 of Part 7
(other than sections 348 to 356 inclusive) or
section 366 of this Act or section 134AB
or 135C of the Accident Compensation Act
1985 and any contribution in respect of such
20 damages under section 23B of the Wrongs
Act 1958--
for which a self-insurer is liable must be paid in
relation to an injury or death.
(2) For the purposes of subsection (1), compensation
25 does not include an amount required to be paid
under 576 or 578.
(3) If the self-insurer does not pay the compensation,
damages or contribution within 28 days after the
direction has been given or the determination has
30 been made, the Authority--
(a) must assume the liability; and
(b) is entitled to recover from the self-insurer the
amount paid by the Authority in discharge of
the liability together with interest at the
35 prescribed rate.
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Subdivision 2--Election by self-insurer to assume liability
for tail claims
395 Movement from scheme insurance to self-insurance
(1) When applying for approval as a self-insurer in
5 accordance with section 376(2)(a) or (c) or (3), an
employer may elect to assume the liability for, and
the responsibility for management of, its tail
claims.
(2) An employer who--
10 (a) makes an election under subsection (1); and
(b) gives the Authority a guarantee in
accordance with section 399 in respect of its
tails claims on or before the approval of the
employer as a self-insurer takes effect under
15 section 382(1)--
assumes liability for, and responsibility for
management of, its tails claims.
Note
If a self-insurer assumes liability for its tail claims, the self-
20 insurer may exercise its powers and functions under this Act
or the Accident Compensation Act 1985 in relation to the
injury or death to which a tail claim relates as if the injury or
death were one to which section 391 applies.
(3) If an employer that is approved as a self-insurer
25 has not made an election under subsection (1), the
Authority--
(a) retains the liability for, and the responsibility
for management of, the tail claims of the
employer; and
30 (b) if the employer--
(i) is the holding company of an eligible
subsidiary that is a self-insurer; and
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(ii) ceases to be a self-insurer--
assumes the liability for, and the responsibility for
management of, the tail claims of the eligible
subsidiary.
5 (4) In this section--
former self-insurer means an eligible subsidiary
of an employer that was a self-insurer before
it became an eligible subsidiary of the
employer;
10 tail claim, of an employer, means a claim,
whenever made--
(a) in respect of an injury or death incurred
or suffered--
(i) by a worker employed by the
15 employer, or an eligible subsidiary
of the employer, before the date
on which the approval of the
employer as a self-insurer takes
effect under section 382(1); or
20 (ii) by a worker employed by a former
self-insurer before it became an
eligible subsidiary of the
employer; or
(iii) if the employer makes an election
25 to assume the tail claims of a
former self-insurer, by a worker
employed by the former self-
insurer before the transfer date or
before the date on which a former
30 self-insurer ceased to be a self-
insurer, which ever first occurs; or
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(iv) if the employer does not make an
election, by a worker before the
Authority assumed the tail claims
of a former self-insurer under
5 section 403;
(v) by a worker that were assumed by
a former self-insurer before it
became an eligible subsidiary of
the employer, whether by
10 agreement with the Authority or
under this section or section 396,
397 or 398 of this Act or section
150 or 150A of the Accident
Compensation Act 1985; and
15 (b) that entitles the worker, the dependants
of the worker or the members of the worker's
family to--
(i) compensation or any other payments
under this Act (other than section 576
20 or 578) or the Accident Compensation
Act 1985 (other than section 242AB or
242AD); or
(ii) damages at common law as permitted
by and in accordance with Division 2 of
25 Part 7 (other than sections 348 to 356
inclusive) or section 366 of this Act or
section 134AB or 135C of the Accident
Compensation Act 1985;
transfer date means the date agreed between the
30 Authority and the employer as the date on
which the liability for, and the responsibility
of the management of, the tail claims of a
former self-insurer are to be assumed by the
employer.
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396 When a self-insurer becomes an eligible subsidiary
of a holding company
(1) If--
(a) a self-insurer (the eligible subsidiary)
5 becomes an eligible subsidiary of a body
corporate (the holding company); and
(b) the holding company applies for approval
under section 383 as a self-insurer--
the holding company may elect, when applying
10 for that approval, to assume the liability for, and
the responsibility for management of, its tail
claims and the tail claims of the eligible
subsidiary.
(2) A holding company that makes an election under
15 subsection (1), must, on or before its approval as a
self-insurer takes effect, give the Authority a
guarantee in accordance with section 399 in
respect of its tail claims and the tail claims of the
eligible subsidiary.
20 (3) If the holding company gives a guarantee in
accordance with subsection (2), the holding
company assumes the liability for, and the
responsibility for management of, its tail claims
and the tails claims of the eligible subsidiary on
25 the date on which the approval of the holding
company as a self-insurer takes effect under
section 383(3)(a).
(4) If the holding company does not make an election
under subsection (1), the Authority retains the
30 liability for, and the responsibility for
management of, the tail claims of the eligible
subsidiary in accordance with section 403.
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(5) In this section--
tail claim, in relation to self-insurer that becomes
an eligible subsidiary of a holding company,
means a claim, whenever made, in respect of
5 an injury or death incurred or suffered--
(i) by a worker employed by the self-
insurer before it became an eligible
subsidiary of the holding company; or
(ii) by a worker employed by the holding
10 company or an eligible subsidiary of
the holding company before the holding
company is approved as a self-insurer
under section 383(1)(a); or
(iii) if the holding company makes an
15 election to assume liability for the tail
claims of an eligible subsidiary of the
holding company, by a worker
employed by the eligible subsidiary
before the transfer date or the date on
20 which the eligible subsidiary ceases to
be a self-insurer, whichever first
occurs; or
(iv) if the holding company does not make
an election to assume liability for the
25 tail claims of an eligible subsidiary of
the holding company, by a worker
employed by the eligible subsidiary
before the Authority assumed liability
for, and responsibility for the
30 management of, the eligible subsidiary
under section 403; or
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(v) by a worker that was assumed by the
self-insurer before it became an eligible
subsidiary of the holding company,
whether by agreement with the
5 Authority or under this section or
section 395, 397 or 398 of this Act or
section 150 or 150A of the Accident
Compensation Act 1985; and
(b) that entitles the worker, the dependants
10 of the worker or the members of the worker's
family to--
(i) compensation or any other payments
under this Act (other than section 576
or 578) or the Accident Compensation
15 Act 1985 (other than section 242AB or
242AD); or
(ii) damages at common law as permitted
by and in accordance with Division 2 of
Part 7 (other than sections 348 to 356
20 inclusive) or section 366 of this Act or
section 134AB or 135C of the Accident
Compensation Act 1985;
transfer date means the date agreed between the
Authority and the holding company as the
25 date on which the liability for, and the
responsibility of the management of, the tail
claims of the eligible subsidiary are to be
assumed by the holding company.
397 When an employer that is a body corporate becomes
30 an eligible subsidiary of a self-insurer
(1) If an employer that is a body corporate to which
section 434 applies becomes an eligible subsidiary
of a self-insurer, the self-insurer must, within
28 days--
35 (a) notify the Authority in writing of the
acquisition of the eligible subsidiary; and
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(b) include in the notification whether or not the
self-insurer elects to assume the liability for,
and the responsibility for management of, the
tail claims of the eligible subsidiary.
5 (2) If the self-insurer makes an election under
subsection (1)(b), the self-insurer must, on or
before the transfer date, give the Authority a
guarantee in accordance with section 399 in
respect of the tail claims of the eligible subsidiary.
10 (3) If the self-insurer gives the guarantee in
accordance with subsection (2), the self-insurer
assumes the liability for, and the responsibility
for, management of, the tail claims of the eligible
subsidiary on the transfer date.
15 (4) If the self-insurer does not make an election under
subsection (1)(b), the Authority retains the
liability for, and the responsibility for
management of, the tail claims of the eligible
subsidiary in accordance with section 403.
20 (5) In this section--
tail claim, in relation to an employer that is a body
corporate to which section 434 applies that
becomes an eligible subsidiary of a self-
insurer, means a claim, whenever made--
25 (a) in respect of an injury or death incurred
or suffered by a worker employed by
the body corporate before it became an
eligible subsidiary of the self-insurer;
and
30 (b) that entitles the worker, the dependants
of the worker and members of the
worker's family to--
(i) compensation or other payments
under this Act (other than
35 section 576 or 578) or the
Accident Compensation Act
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1985 (other than section 242AB
or 242AD); or
(ii) damages at common law as
permitted by and in accordance
5 with Division 2 of Part 7 (other
than sections 348 to 356 inclusive)
or section 366 of this Act or
section 134AB or 135C of the
Accident Compensation Act
10 1985;
transfer date means the date agreed between the
Authority and the self-insurer as the date on
which the liability for, and the responsibility
for management of, the tail claims of the
15 eligible subsidiary are to be assumed by the
self-insurer.
398 When a self-insurer becomes an eligible subsidiary
of another self-insurer
(1) If a self-insurer becomes an eligible subsidiary
20 (the eligible subsidiary) of another self-insurer
(the self-insurer), the self-insurer must, within
28 days--
(a) notify the Authority in writing of the
acquisition of the eligible subsidiary; and
25 (b) include in the notification whether or not the
self-insurer elects to assume the liability for,
and the responsibility for the management of,
the tail claims of the eligible subsidiary.
(2) If the self-insurer makes an election under
30 subsection (1)(b), the self-insurer must, on or
before the transfer date, give the Authority a
guarantee in accordance with section 399 in
respect of the tail claims of the eligible subsidiary.
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(3) If the self-insurer gives the guarantee in
accordance with subsection (2), the self-insurer
assumes the liability for, and the responsibility
for, management of the tail claims of the eligible
5 subsidiary on the transfer date.
(4) If the self-insurer does not make an election under
subsection (1)(b), the Authority assumes the
liability for, and the responsibility for the
management of, the tail claims of the eligible
10 subsidiary in accordance with section 403.
(5) In this section--
tail claim, in relation to a self-insurer (the first
mentioned self-insurer) that becomes an
eligible subsidiary of another self-insurer,
15 means a claim, whenever made--
(a) in respect of an injury or death--
(i) incurred or suffered by a worker
employed by the first mentioned
self-insurer before it became an
20 eligible subsidiary of the other
self-insurer; or
(ii) if the other self-insurer makes an
election to assume the liability for,
and the responsibility for the
25 management of, the tail claims of
the first mentioned self-insurer,
incurred or suffered by a worker
employed by the first mentioned
self-insurer before the transfer
30 date or the date on which the first
mentioned self-insurer ceases to
be a self-insurer, whichever first
occurs; or
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(iii) if subparagraph (ii) does not
apply, incurred or suffered by a
worker employed by the first
mentioned self-insurer before the
5 Authority assumes the liability
for, and the responsibility for the
management of, the tail claims of
the first mentioned self-insurer in
accordance with section 403; or
10 (iv) incurred or suffered by a worker,
being a claim the liability for, and
responsibility for the management
of, was assumed by the first
mentioned self-insurer before it
15 became an eligible subsidiary of
the other self-insurer, whether by
agreement (including an
agreement entered into with the
Authority before 1 July 2014) or
20 under section 395, 396, 397 or this
section or section 150 or 150A of
the Accident Compensation Act
1985; and
(b) that entitles the worker, the dependants
25 of the worker and members of the
worker's family to--
(i) compensation or other payments
under this Act (other than
section 576 or 578) or the
30 Accident Compensation Act
1985 (other than section 242AB or
242AD); or
(ii) damages at common law as
permitted by and in accordance
35 with Division 2 of Part 7 (other
than sections 348 to 356 inclusive)
or section 366 of this Act or
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section 134AB or 135C of the
Accident Compensation Act
1985;
transfer date means the date agreed by the
5 Authority and the self-insurer as the date on
which the liability for, and the responsibility
for management of the tail claims of the
eligible subsidiary are to be assumed by the
self-insurer.
10 399 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 395(1) or 396(1) to
assume liability for its tail claims; or
15 (b) has elected under section 397(1)(b) to
assume liability for the tail claims of an
employer that is a body corporate to which
section 434 applies that becomes an eligible
subsidiary of the employer; or
20 (c) has elected under section 398(1)(b) to
assume liability for the tail claims of another
self-insurer that becomes an eligible
subsidiary of the employer.
(2) On and from the date the employer assumes
25 liability for the tail claims and until such time as
the Authority assumes liability for the tail claims
of the employer under section 407, the employer
must ensure that there is in force at all times a
guarantee in respect of liabilities relating to the
30 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 the
employer has ceased to be an approved self-
insurer.
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400 Requirement for guarantee
(1) For the purposes of section 399(2), the guarantee
that must be provided to the Authority is a
guarantee that--
5 (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 less
than one and one-half times the amount of
10 the assessed tail claim liability of the
employer or the eligible subsidiary, as the
case may be.
(2) For the purposes of subsection (1)(c), the assessed
tail claim liability of an employer or a body
15 corporate is the actuarial value of the current, non-
current and contingent liabilities of the employer
or the eligible subsidiary in respect of tail claims
under this Act.
(3) For the purposes of subsection (2), an assessment
20 of the tail claim liability of the employer or
eligible subsidiary must be carried out by an
actuary approved by the Authority under
guidelines made by the Authority in accordance
with section 410 at intervals of not more than one
25 year.
(4) For the purposes of an assessment under
subsection (3), the employer must--
(a) make provision in its accounts for current,
non-current and contingent tail claim
30 liabilities; and
(b) permit an actuary appointed by the Authority
to inspect the books of the employer.
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401 Arrangements for payments in respect of liability
for tail claims
(1) The Minister may, by notice published in the
Government Gazette, make a Ministerial Order
5 regarding the arrangements that are to apply
where--
(a) in accordance with section 395 or 396, an
employer, as a self-insurer, assumes liability
for its tail claims; or
10 (b) in accordance with section 397, a self-insurer
assumes liability for the tail claims of an
employer to which section 434 applies that is
a body corporate that becomes an eligible
subsidiary of the self-insurer.
15 (2) Without limiting subsection (1), the Ministerial
Order may specify--
(a) the method of calculating a settlement
amount that must be paid by the Authority to
the self-insurer; and
20 (b) the manner in which the 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.
25 402 Where an eligible subsidiary ceases to be an eligible
subsidiary of a self-insurer
If--
(a) under section 395, 396, 397 or 398, a self-
insurer (the self-insurer) assumed the
30 liability for, and the responsibility for
management of, the tail claims of an eligible
subsidiary of the self-insurer (the
subsidiary); and
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(b) the subsidiary ceases to be an eligible
subsidiary of the self-insurer--
the self-insurer retains liability for, and the
responsibility for management of, the tail claims
5 of the subsidiary until the self-insurer ceases to be
a self-insurer.
Subdivision 3--Employer that ceases to be self-insurer or
otherwise to be liable for tail claims
403 Employer ceases to be self-insurer
10 (1) Subject to subsection (2), this section applies if--
(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) of the
Accident Compensation Act 1985 as in
15 force before 15 August 2007, the Authority,
by notice published in the Government
Gazette, has declared that the employer has
ceased to be liable for the tail claims of the
employer.
20 (2) This section does not apply if the employer ceases
to be a self-insurer because it becomes an eligible
subsidiary of another self-insurer that, under
section 396 or 398, has assumed the liability for,
and responsibility for management of, the tail
25 claims of the employer.
(3) Unless otherwise allowed by the Authority, on
and from the exit date--
(a) the Authority assumes the liability for, and
the responsibility for management of, the tail
30 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 the employer as
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a self-insurer, may lodge the claim with the
Authority; and
(c) this Act and the Accident Compensation
Act 1985 apply to the Authority as if it were
5 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, as if the Authority were that party.
10 (4) 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 the employer
no later than 28 days after the exit date.
15 Penalty: 500 penalty units.
(5) In this section--
exit date means--
(a) the date on which the employer ceases to be
a self-insurer; or
20 (b) in the case of an employer referred to in
subsection (1)(b), the date on which the
notice is published in the Government
Gazette.
tail claim, of an employer that ceases to be a self-
25 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 employer or an
30 eligible subsidiary of the employer
while the employer was a self-
insurer; and
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(ii) which entitles that worker, the
dependants of that worker or
members of that worker's family
to compensation or any other
5 payments under this Act (other
than section 576 or 578) or the
Accident Compensation Act
1985 or damages at common law
as permitted by and in accordance
10 with Division 2 of Part 7 (other
than sections 348 to 356 inclusive)
or section 366 or section 134AB
or 135C of the Accident
Compensation Act 1985; or
15 (b) a claim for which the employer
assumed liability under section 395(2),
396(2), 397(3) or 398(3); or
(c) a claim for which the employer
assumed liability by agreement with the
20 Authority.
404 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
25 actuary under section 405 or 406.
(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 the
30 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
35 subsection (3).
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(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.
(6) If the Authority pays the cost of conducting the
5 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 employer due to the Authority.
405 Initial assessment of liability for tail claims
10 (1) This section applies if, under section 403, the
Authority assumes the liability for the tail 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
15 claims liabilities of the 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 the tail
20 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 (2) or
25 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 Authority by the
30 employer and is payable by the employer within--
(a) 28 days of receiving notice of the assessment
or determination from the Authority; or
(b) any longer period as may be agreed between
the Authority and the employer.
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(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 provided under section 393
5 or 399.
(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 exit date of the employer
10 in respect of tail claims.
406 Annual assessment of tail claims liabilities and
adjustment of payments
(1) The Authority must ensure that an actuary
appointed by the Authority undertakes an
15 assessment of the tail claims liabilities of an
employer assumed by the Authority under
section 403 as at the end of each year during the
liability period.
(2) The Authority must give notice in writing to the
20 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
liability period exceeds the initial assessment of
25 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
liability period is less than the initial assessment
30 of the tail claims liabilities, the Authority must
pay the difference to the employer.
(5) If the revised assessment of the tail claims
liabilities as at the end of the sixth year of the
liability period exceeds the revised assessment of
35 the tail claims liabilities as assessed at the end of
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the third year of the liability period, the employer
must pay the difference to the Authority.
(6) If the revised assessment of the tail claims
liabilities as at the end of the sixth year of the
5 liability period is less than the revised assessment
of the tail claims liabilities as assessed at the end
of the third year of the liability period, the
Authority must pay the difference to the
employer.
10 (7) If the employer is required under subsection (3) or
(5) to pay an amount as a result of a revised
assessment, the employer must pay the amount
within--
(a) 28 days of receiving notice of the revised
15 assessment from the Authority; or
(b) any further period as may be agreed between
the Authority and the employer.
(8) If the amount is not paid to the Authority in
accordance with subsection (7), the amount
20 together with interest at the prescribed rate is a
debt due to the Authority.
(9) In this section, liability period means the period of
6 years commencing from the exit date as defined
in section 403.
25 407 Provision of guarantees
(1) This section applies if, under section 403, the
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
30 date the Authority assumes liability for 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 per
cent of--
(i) in relation to the first year of the
liability period, the initial assessment of
5 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 period, the revised
amount of the tail claims liabilities still
10 outstanding as assessed at the end of
each subsequent year for the duration of
the next year until the final assessment
date; and
(b) against claims deterioration--
15 (i) in relation to the period from the exit
date until the interim assessment date,
for the amount, if any, by which the
revised assessment of tail claims
liabilities at the end of each year
20 exceeds the initial assessment of tail
claims liabilities;
(ii) in relation to the period from the end
of the period referred to in
subparagraph (i) until the final
25 assessment date or, if a review is
conducted under section 408, until the
date on which the review is finalised,
for the amount, if any, by which the
revised assessment of tail claims
30 liabilities at the end of each year
exceeds the revised assessment of tail
claims liabilities as assessed at the end
of the third year.
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(3) An employer must comply with subsection (2).
Penalty: In the case of a natural person,
240 penalty units;
In the case of a body corporate,
5 1200 penalty units.
(4) If, by virtue of section 600, a natural person
commits an offence under subsection (3), that
person is liable to a penalty of 120 penalty units.
(5) The guarantee referred to in subsection (2) must
10 be--
(a) given by an ADI to or in favour of the
Authority; and
(b) in a form approved by the Authority.
(6) If the employer receives a notice of assessment of
15 tail claims liabilities conducted under section 406,
the employer 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
20 until the final assessment date.
(7) 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
25 required under section 406(3) or (5); or
(b) the employer is an externally-administered
body corporate within the meaning of the
Corporations Act.
(8) For the purpose of any proceeding commenced by
30 the Authority to recover under a guarantee under
this section, a certificate purporting to be signed
by an officer or employee of the Authority
certifying that--
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(a) an event referred to in subsection (7)(a) or
(7)(b) and specified in the certificate has
occurred; and
(b) the Authority has suffered a loss of the
5 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 the contrary, is
proof of those matters.
10 (9) In this section--
final assessment date means--
(a) if a payment is required under section
406(5), the date the payment is made;
or
15 (b) if no payment is required, the date
which is 28 days after the notice of
revised assessment is received under
section 406 in relation to the
assessment carried out in the sixth year
20 of the liability period;
interim assessment date means--
(a) if a payment is required under section
406(3), the date the payment is made;
or
25 (b) if no payment is required, the date
which is 28 days after the notice of
revised assessment is received under
section 406 in relation to the
assessment carried out in the third year
30 of the liability period.
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408 Review of final revised assessment at the end of the
liability period
(1) If an employer disputes the final revised
assessment made under section 406 as at the end
5 of the liability period, the employer may appoint
an actuary to review the final revised assessment.
(2) The employer must pay the cost of conducting the
review.
(3) The actuary appointed by the employer must
10 provide comments to the actuary who made the
final revised assessment within 28 days of the
employer receiving a copy of the final revised
assessment.
(4) If the actuary appointed by the employer and the
15 actuary who made the final revised assessment are
unable to reach agreement, the employer and the
Authority may agree--
(a) to jointly appoint another actuary to review
the final revised assessment; and
20 (b) to be bound by the decision of that actuary.
(5) The costs of a review conducted under
subsection (4) are to be borne equally by the
employer and the Authority.
(6) If--
25 (a) the actuary appointed by the employer and
the actuary who made the final revised
assessment were unable to reach agreement;
and
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(b) the employer and the Authority do not enter
into an agreement under subsection (4)
within 28 days after the period referred to in
subsection (3)--
5 the final revised assessment under section 406 is
by virtue of this subsection binding on the
employer and the Authority.
409 Eligible subsidiary of self-insurer becomes a non-
WorkCover employer
10 (1) This section applies if an employer that is an
eligible subsidiary of a self-insurer becomes a
non-WorkCover employer within the meaning of
Part 9.
(2) For the purposes of this Part, the employer is
15 taken not to be an eligible subsidiary of the self-
insurer for the period that it is a non-WorkCover
employer.
(3) The Authority must, in a review on the ground
specified in section 384(2)(c)(i), determine
20 whether--
(a) the employer should retain; or
(b) the Authority should assume--
the liability for, and the responsibility for
management of, the tail claims of the employer.
25 (4) If the Authority assumes the liability for the tail
claims of an employer under subsection (3)--
(a) Part 9 applies in respect of that liability; and
(b) a person who, but for this section, would
have been required to lodge a claim for
30 compensation with the employer as a self-
insurer, may lodge the claim with the
Authority; and
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(c) this Act and the Accident Compensation
Act 1985 apply to the Authority as if it were
a self-insurer and, in relation to any
proceedings to which the employer was a
5 party as a self-insurer immediately before the
Authority assumed the liability of the
employer, 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
10 subsection (3), the employer must give to the
Authority all claims and other relevant documents
relating to the tail claims that are in the possession
of the employer.
Penalty: 500 penalty units.
15 (6) In this section, tail claim, of an employer that
ceases to be an eligible subsidiary of a self-
insurer, means a claim, regardless of when made,
in respect of an injury or death--
(a) incurred or suffered by a worker employed
20 by the employer while the employer was an
eligible subsidiary of a 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
25 payments under this Act (other than
section 576 or 578) or the Accident
Compensation Act 1985 or damages at
common law as permitted by and in
accordance with Division 2 of Part 7
30 (other than sections 348 to 356 inclusive) or
section 366 or section 134AB or 135C of the
Accident Compensation Act 1985.
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Division 7--Miscellaneous
410 Guidelines
(1) The Authority may make guidelines for the
purposes of this Part to provide guidance to self-
5 insurers about 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
10 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
(b) a discretion of the Authority under a
15 provision of this Part would be exercised.
(3) For the purposes of subsection (2)(b), the
Authority exercises a discretion if the Authority--
(a) forms an opinion; or
(b) attains a state of mind; or
20 (c) makes a determination; or
(d) exercises a power; or
(e) refuses or fails to do any of those things.
(4) If the Authority proposes to make guidelines
under subsection (1), it must--
25 (a) ensure notice of the proposed guidelines is
published; and
(b) include in the notice a statement that written
submissions or comments on the proposed
guidelines may be made to the Authority
30 within a specified period; and
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(c) give a copy of the proposed guidelines to
each person who requests it during that
period.
(5) After considering the submissions and comments
5 (if any) received by the Authority within the
specified period, the Authority may make the
guidelines (with or without modifications) by
causing notice of them to be published.
(6) The Authority must ensure that guidelines made
10 under this section are published and are generally
available.
411 Effect of guidelines
Guidelines under section 410 do not give rise to--
(a) any liability of, or other claim against, the
15 Authority; or
(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 be
20 available to that person.
412 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 Part;
25 or
(ii) authorised to perform or exercise any
function or power of the Authority
under this Part; and
(b) has acquired information by reason of being
30 or having been so appointed or authorised.
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(2) A person to whom this section applies may--
(a) produce a document or divulge or
communicate information to any of the
following--
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) an authority, department or public
body, within the meaning of the
15 Financial Management Act 1994,
which has functions in relation to
particular accident compensation
matters arising under this Act or any
other Act;
20 (v) the Transport Accident Commission;
(vi) a person who has responsibility for the
administration of a welfare, benefit or
compensation scheme of another State
or a Territory or the Commonwealth;
25 (vii) a corresponding Authority;
(viii) the National Occupational Health and
Safety Commission;
(ix) the Australian Bureau of Statistics;
(x) any special commission (within the
30 meaning of the Evidence
(Commissions) Act 1982) where the
Minister has received a request in
writing for information from the special
commission and the Minister has given
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Part 8--Self-insurers
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written approval to the person of the
communication of that information;
(xi) a person or body approved by the
Governor in Council;
5 (xii) a committee of the Parliament; and
(b) produce a document or disclose information
which is required or permitted to be
produced or disclosed by or under this Act or
any other Act.
10 (3) A person to whom this section applies must not--
(a) either directly or indirectly make a record of,
or divulge or communicate to anyone else,
any information referred to in subsection
(1)(b), except to the extent necessary to
15 perform official duties, or to perform or
exercise a function or power referred to in
subsection (1)(a)(ii); or
(b) make use of that information, for any
purpose other than the performance of
20 official duties or the performance or exercise
of a function or power referred to in
subsection (1)(a)(ii).
Penalty: In the case of a natural person,
120 penalty units;
25 In the case of a body corporate,
600 penalty units.
(4) The Minister must cause a report of requests for
the approval of persons or bodies by the Governor
in Council under subsection (2)(a)(xi) to be laid
30 before each House of the Parliament within
14 sitting days of that House after 30 June in each
year.
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(5) The report must include the following matters in
respect of each request--
(a) the name of the person sought to be
approved;
5 (b) the reason for the request;
(c) the date of the request;
(d) whether the request was approved or refused.
__________________
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Part 9--Non-WorkCover Employers
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PART 9--NON-WORKCOVER EMPLOYERS
413 Definitions
In this Part--
actuary means a fellow or accredited member of
5 the Institute of Actuaries of Australia
approved by the Authority;
available assets means the portion of the
Authority's total assets assessed by an
actuary calculated, with reference to the last
10 audited financial statements of the Authority,
to be available to fund the tail claims
liabilities;
exit date means the date on which an employer
becomes a non-WorkCover employer;
15 initial assessment means the assessment of tail
claims liabilities under section 415;
liability period means the period of 6 years
commencing from the exit date;
non-WorkCover employer means an employer
20 which--
(a) is licensed under Part VIII of the
Safety, Rehabilitation and
Compensation Act 1988 of the
Commonwealth after a declaration of
25 eligibility under that Part made on the
basis that the employer is a corporation
carrying on business in competition
with a Commonwealth authority or
with another corporation that was
30 previously a Commonwealth authority;
and
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(b) would otherwise be required--
(i) to be a registered as an employer
under section 434; or
(ii) to be approved as a self-insurer
5 under Part 8; or
(iii) to be an eligible subsidiary of a
holding company that is a self-
insurer;
revised assessment means the assessment of tail
10 claims liabilities under section 417;
tail claims means claims whether made before, on
or after the exit date--
(a) in respect of injuries or deaths incurred
or suffered by workers employed by the
15 non-WorkCover employer while the
non-WorkCover employer was--
(i) insured under a WorkCover
insurance policy or registered as
an employer under section 434; or
20 (ii) a self-insurer; or
(iii) an eligible subsidiary of a self-
insurer; and
(b) which entitle a worker or the
dependants of a worker to
25 compensation under this Act (other
than section 576 or 578) or the
Accident Compensation Act 1985
(other than section 242AB or 242AD)
or damages at common law as
30 permitted by and in accordance with
Division 2 of Part 7 (other than
sections 348 to 356 inclusive) or
section 366 or section 134AB or 135C
of the Accident Compensation Act
35 1985;
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tail claims liabilities means the sum of the
actuarial value of the current, non-current
and contingent liabilities immediately before
the exit date in respect of tail claims under
5 this Act of the non-WorkCover employer
while the non-WorkCover employer was--
(a) a registered employer; or
(b) a self-insurer; or
(c) an eligible subsidiary of a self-insurer.
10 414 Authority retains or assumes liability for tail claims
On the exit date the Authority--
(a) if the non-WorkCover employer was a
registered employer, retains--
(i) the liability for; and
15 (ii) the responsibility for management of--
the tail claims of the non-WorkCover
employer; or
(b) if the non-WorkCover employer was a self-
insurer, assumes--
20 (i) the liability for; and
(ii) the responsibility for management of--
the tail claims of the non-WorkCover
employer; or
(c) if the non-WorkCover employer was an
25 eligible subsidiary of a self-insurer and the
Authority has determined to assume liability
under section 409(3), assumes--
(i) the liability for; and
(ii) the responsibility for management of--
30 the tail claims of the non-WorkCover
employer.
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Part 9--Non-WorkCover Employers
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415 Actuary to assess tail claims liabilities
(1) If, immediately before the exit date, the non-
WorkCover employer had a statutory contract of
insurance under section 435, an actuary appointed
5 by the Authority must undertake an assessment
of--
(a) the tail claims liabilities; and
(b) the available assets.
(2) If, immediately before the exit date, the non-
10 WorkCover employer was a self-insurer or an
eligible subsidiary of a self-insurer to which this
Part applies, an actuary appointed by the
Authority must assess the tail claims liabilities.
(3) If a non-WorkCover employer referred to in
15 subsection (2) fails to permit the actuary to inspect
the books of the non-WorkCover employer to
enable that assessment to be made, the tail claims
liabilities are deemed to be the amount that the
actuary determines to be the tail claims liabilities
20 of the non-WorkCover employer.
(4) The non-WorkCover employer must pay the cost
of conducting the assessment.
(5) The actuary must provide the non-WorkCover
employer with a copy of the proposed assessment.
25 (6) The non-WorkCover employer may provide
comments to the actuary within 28 days of
receiving a copy of the proposed assessment or
within any further period as may be agreed
between the Authority and the non-WorkCover
30 employer.
(7) The actuary must finalise the assessment after
considering any comments received under
subsection (6).
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416 Obligation of non-WorkCover employer
(1) If, immediately before the exit date, the non-
WorkCover employer had a statutory contract of
insurance under section 435 and the initial
5 assessment is that the tail claims liabilities exceed
the available assets, the non-WorkCover employer
must pay the amount of the difference to the
Authority.
(2) If, immediately before the exit date, the non-
10 WorkCover employer was a self-insurer or an
eligible subsidiary of a self-insurer, the non-
WorkCover employer must pay the amount of the
tail claims liabilities as assessed in the initial
assessment to the Authority.
15 (3) The non-WorkCover employer must pay the
amount under subsection (1) or (2) within 28 days
of receiving a notice of that initial assessment
from the Authority or within any further period as
may be agreed between the Authority and the non-
20 WorkCover employer.
(4) If the amount under subsection (1) or (2) is not
paid to the Authority in accordance with
subsection (3), the amount together with interest
at the prescribed rate may be recovered by the
25 Authority as a civil debt recoverable summarily.
417 Annual assessment of tail claims liabilities
(1) The Authority must ensure that an actuary
appointed by the Authority undertakes an
assessment of the tail claims liabilities as at the
30 end of each year during the liability period.
Note
Section 44(6)(c) of the Interpretation of Legislation Act
1984 provides that a reference, without qualification, to a
year shall be construed as a reference to a period of
35 12 months.
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(2) The non-WorkCover employer must pay the cost
of conducting the assessment.
(3) The actuary must provide the non-WorkCover
employer with a copy of the proposed assessment.
5 (4) The non-WorkCover employer may provide
comments to the actuary within 28 days of
receiving a copy of the proposed assessment or
within any further period as may be agreed
between the Authority and the non-WorkCover
10 employer.
(5) The actuary must finalise the assessment after
considering any comments received under
subsection (4).
418 Adjustment of payments as at the end of the third
15 year
(1) If the revised assessment of the tail claims
liabilities as at the end of the third year of the
liability period exceeds the initial assessment of
the tail claims liabilities, the non-WorkCover
20 employer must pay the amount of the difference to
the Authority.
(2) If the revised assessment of the tail claims
liabilities as at the end of the third year of the
liability period is less than the initial assessment
25 of the tail claims liabilities, the Authority must
pay the amount of the difference to the non-
WorkCover employer in accordance with
section 420.
419 Adjustment of payments as at the end of the sixth
30 year
(1) If the revised assessment of the tail claims
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
35 the third year of the liability period, the non-
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WorkCover employer must pay the amount of the
difference to the Authority.
(2) If the revised assessment of the tail claims
liabilities as at the end of the sixth year of the
5 liability period is less than the revised assessment
of the tail claims liabilities as assessed at the end
of the third year of the liability period, the
Authority must pay the amount of the difference
to the non-WorkCover employer in accordance
10 with section 420.
420 Payments of tail claims
(1) The non-WorkCover employer must pay the
amount under section 418 or 419 within 28 days
of receiving a notice of that revised assessment
15 from the Authority or within any further period as
may be agreed between the Authority and the non-
WorkCover employer.
(2) If the amount under section 418 or 419 is not paid
to the Authority in accordance with subsection
20 (1), the amount together with interest at the
prescribed rate may be recovered by the Authority
as a civil debt recoverable summarily.
421 Provision of guarantees
A non-WorkCover employer must ensure that
25 there is in force--
(a) until the date a payment if required under
section 419 is made; or
(b) if no payment is required, until the date
which is 28 days after the notice of revised
30 assessment is received under section 419--
a guarantee--
(c) against insolvency risk given by an ADI to
or in favour of the Authority in a form
approved by the Authority in respect of
35 50 per cent of--
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(i) in relation to the first year of the
liability period, the initial assessment of
tail claims liabilities until the end of the
first year after the exit date;
5 (ii) in relation to the second and subsequent
years of the liability period, the revised
amount of the tail claims liabilities still
outstanding as assessed at the end of
each subsequent year for the duration of
10 the next year until the date a payment
(if any) is made under section 419; and
(d) against claims deterioration given by an ADI
to or in favour of the Authority in a form
approved by the Authority--
15 (i) in relation to the period from the exit
date until the date a payment is made
under section 418 or if no payment is
required, until the date which is 28 days
after the notice of assessment is
20 received under section 418, for the
amount, if 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 date a payment is made
under section 419 or if no payment is
required, until the date which is 28 days
30 after the notice of assessment is
received under section 419, or if a
review is conducted under section 425,
until the date on which the review is
finalised, for the amount, if any, by
35 which the revised assessment of tail
claims liabilities at the end of each year
exceeds the revised assessment of tail
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claims liabilities as assessed at the end
of the third year.
422 Provision of new guarantee
If a non-WorkCover employer receives a notice of
5 assessment of tail claims liabilities under
section 417, the non-WorkCover employer 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 section 421, to
10 continue in force until the date a payment if
required under section 419 is made or, if no
payment is required, until the date which is
28 days after the notice of revised assessment is
received under section 419.
15 423 Recovery under guarantees
(1) If--
(a) the non-WorkCover employer fails to make a
payment required under section 418 or 419;
or
20 (b) the non-WorkCover employer is an
externally-administered body corporate
within the meaning of the Corporations
Act--
the Authority may recover under a guarantee
25 under section 421 or 422 any loss suffered by the
Authority.
(2) For the purpose of any proceeding commenced by
the Authority to recover under a guarantee under
subsection (1), a certificate purporting to be
30 signed by an officer or employee of the Authority
certifying that--
(a) an event referred to in subsection (1) and
specified in the certificate has occurred; and
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(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
5 and, in the absence of evidence to the contrary, is
proof of those matters.
424 Review of final revised assessment at the end of the
liability period
(1) If a non-WorkCover employer disputes the final
10 revised assessment made under section 417 as at
the end of the liability period, the non-WorkCover
employer may appoint an actuary to review the
final revised assessment.
(2) The non-WorkCover employer must pay the cost
15 of conducting the review.
(3) The actuary appointed by the non-WorkCover
employer must provide comments to the actuary
who made the final revised assessment within
28 days of the non-WorkCover employer
20 receiving a copy of the final revised assessment.
(4) If the actuary appointed by the non-WorkCover
employer and the actuary who made the final
revised assessment are unable to reach agreement,
the non-WorkCover employer and the Authority
25 may agree--
(a) to jointly appoint another actuary to review
the final revised assessment; and
(b) to be bound by the decision of that actuary.
(5) The costs of a review conducted under
30 subsection (4) are to be borne equally by the non-
WorkCover employer and the Authority.
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(6) If--
(a) the actuary appointed by the non-WorkCover
employer and the actuary who made the final
revised assessment were unable to reach
5 agreement; and
(b) the non-WorkCover employer and the
Authority do not enter into an agreement
under subsection (4) within 28 days after the
period referred to in subsection (3)--
10 the final revised assessment under section 417 is
by virtue of this subsection binding on the non-
WorkCover employer and the Authority.
425 Liability of Authority under this Part
Except as is otherwise expressly provided in this
15 Part, the Authority is not liable to make any
payment or repayment to a non-WorkCover
employer under this Part.
426 Legal proceedings excluded
No proceedings may be brought against the
20 Authority, an actuary or any other person in
respect of any assessment under this Part or any
other act, matter or thing incidental to the conduct
of such an assessment.
427 Application of Part if non-WorkCover employer
25 ceases to be a non-WorkCover employer
This Part continues to apply until the end of the
liability period in respect of the tail claims of a
non-WorkCover employer who ceases to be a
non-WorkCover employer and becomes--
30 (a) a registered employer; or
(b) a self-insurer; or
(c) an eligible subsidiary of a self-insurer.
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428 Failure to comply with a provision of this Part
A non-WorkCover employer must comply with
this Part.
Penalty: In the case of a natural person,
5 240 penalty units;
In the case of a body corporate,
1200 penalty units.
__________________
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Part 10--Premiums and Registration of Employers
s. 429
PART 10--PREMIUMS AND REGISTRATION OF
EMPLOYERS
Division 1--Preliminary
429 Application
5 (1) This Part does not apply to--
(a) an employer which is a self-insurer; or
(b) a non-WorkCover employer; or
(c) an employer which, in a financial year, does
not employ a worker other than a worker
10 whose employment, because of section 37, is
not connected with this State and either--
(i) the worker has workers compensation
cover in respect of the worker's
employment under the law of the State
15 or Territory with which the worker's
employment is connected; or
(ii) the worker is employed to work outside
Australia and works outside Australia.
(2) In this section, worker includes an apprentice.
20 430 Liability to pay premium
(1) An employer which--
(a) in a financial year--
(i) employs one or more workers; and
(ii) pays or is liable to pay rateable
25 remuneration in respect of the financial
year that exceeds the exemption limit;
or
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(b) in a financial year, employs an apprentice
(whether or not the employer's rateable
remuneration in the financial year exceeds
the exemption limit)--
5 is liable under this Part to pay a premium in
accordance with this Part in respect of the
financial year.
(2) Subsection (1) applies to an employer whether or
not the employer is registered under section 434.
10 (3) In this section, worker includes an apprentice.
431 Groups
(1) For the purposes of this Part, if--
(a) an employer that is a body corporate and
another body corporate (related person) are,
15 by reason of section 50 of the Corporations
Act, related to each other; or
(b) one or more workers of an employer perform
duties for or in connection with one or more
businesses carried on by the employer and
20 one or more other persons (associates); or
(c) one or more workers of an employer are
employed solely or mainly to perform duties
for or in connection with one or more
businesses carried on by one or more other
25 persons (associates); or
(d) one or more workers of an employer perform
duties for or in connection with one or more
businesses carried on by one or more other
persons (associates), being duties performed
30 in connection with, or in fulfilment of, the
employer's obligation under, an agreement,
arrangement or undertaking for the provision
of services to any one or more of the
associates in connection with that business or
35 those businesses--
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(i) whether the agreement, arrangement or
undertaking is formal or informal,
express or implied; and
(ii) whether or not the agreement,
5 arrangement or undertaking provides
for duties to be performed by the
workers or specifies the duties to be
performed by them--
the employer and all persons who are related
10 persons or associates in relation to that employer
together constitute a group and each is a member
of that group.
Note
Subsection (10) allows the Authority to exclude members
15 from a group constituted under this subsection in certain
circumstances.
(2) If a person or 2 or more persons have a controlling
interest in each of 2 businesses under subsection
(3), the persons who carry on those businesses
20 constitute a group and each person is a member of
the group.
Note
Subsection (10) allows the Authority to exclude members
from a group constituted under this subsection in certain
25 circumstances.
(3) For the purposes of subsection (2), a person or
2 or more persons have a controlling interest in a
business if--
(a) in the case of a business carried on by a
30 corporation--
(i) the person or each of the persons is a
director of the corporation and the
person or persons are entitled to
exercise more than 50 per cent of the
35 voting power at meetings of the
directors of the corporation; or
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(ii) a director or 2 or more directors of the
corporation that are entitled to exercise
more than 50 per cent of the voting
power at meetings of the directors of
5 the corporation are under an obligation,
whether formal or informal, to act in
accordance with the direction,
instructions or wishes of that person or
those persons; or
10 (b) in the case of a business carried on by a
corporation that has a share capital, that
person or those persons can, directly or
indirectly, exercise, control the exercise of,
or substantially influence the exercise of,
15 more than 50 per cent of the voting power
attached to the voting shares, or any class of
voting shares, issued by the corporation; or
(c) in the case of a business carried on by a body
corporate or unincorporate, that person or
20 those persons constitute more than 50 per
cent of the board of management (by
whatever name called) of the body or control
the composition of the board; or
(d) in the case of a business carried on by a
25 partnership, that person or those persons--
(i) own (whether beneficially or not) more
than 50 per cent of the capital of the
partnership; or
(ii) are entitled (whether beneficially or
30 not) to more than 50 per cent of the
profits of the partnership; or
(e) in the case of a business carried on under a
trust, the person or persons (whether or not
as a trustee of, or beneficiary under, another
35 trust) are the beneficiary in respect of more
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than 50 per cent of the value of the interests
in the first-mentioned trust; or
(f) in the case of one person, the person is the
sole owner (whether or not as trustee) of the
5 business; or
(g) in the case of 2 or more persons, the persons
are together as trustees the sole owners of the
business.
(4) A person who may benefit from a discretionary
10 trust as a result of the trustee or another person, or
the trustee and another 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 per cent of the value of
15 the interests in the trust.
(5) If--
(a) 2 corporations are related bodies corporate
within the meaning of the Corporations Act;
and
20 (b) one of the corporations has a controlling
interest in a business--
the other corporation has a controlling interest in
the business.
(6) If--
25 (a) a person or 2 or more persons have a
controlling interest in a business; and
(b) a person or 2 or more persons who carry on
the business have a controlling interest in
another business--
30 the person or persons referred to in paragraph (a)
have a controlling interest in that other business.
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(7) If--
(a) a person or 2 or more persons are the
beneficiary of a trust in respect of more than
50 per cent of the value of the interests in the
5 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 persons have a controlling interest in
the business.
(8) If--
(a) a person or 2 or more persons have a
controlling interest in the business of a trust;
15 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 persons are deemed to have a
controlling interest in the business of the
corporation.
(9) If--
(a) a person or 2 or more persons have 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 business of a
30 partnership--
the person or persons are deemed to have a
controlling interest in the business of the
partnership.
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(10) If the Authority is satisfied that, having regard
to--
(a) the nature and degree of ownership and
control of the businesses; and
5 (b) the nature of the businesses; and
(c) any other matters the Authority considers
relevant--
a business carried on by a member of a group,
other than a group constituted by reason of
10 subsection (12), is carried on independently of,
and is not connected with, the carrying on of a
business carried on by any other member of that
group, the Authority may exclude the member
from that group.
15 (11) The Authority must not, under subsection (10),
exclude a person from a group if the person is a
body corporate that, by reason of section 50 of the
Corporations Act, is related to another body
corporate that is a member of that group.
20 (12) Subject to subsection (13), for the purposes of this
section, if an employer is a member of a group
and that person or another member of that group is
a member of another group, a person who is a
member of that other group is--
25 (a) deemed to be a member of the first-
mentioned group; and
(b) called an associate.
(13) Subsection (12) does not apply if a person
satisfies the Authority that--
30 (a) the trade, business or profession carried on
by that person is carried on independently of,
and is not connected with, the carrying on of
a trade, business or profession carried on by
a member of the first-mentioned group; and
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(b) that trade, business or profession is not
carried on with an intention, either directly
or indirectly, of reducing the amount of
premium payable by that person or another
5 member of the group.
(14) In this section--
business includes--
(a) a profession or trade; and
(b) any other activity carried on for fee,
10 gain or reward; and
(c) the activity of employing one or more
persons who perform duties for or in
connection with another business; and
(d) the carrying on of a trust (including a
15 dormant trust); and
(e) the activity of holding any money or
property used for or in connection with
another business--
whether carried on by one person or 2 or
20 more persons together;
person includes an unincorporated body and a
partnership.
432 Joint and several liability of group members
(1) A person who, during a period, is or was a
25 member of a group within the meaning of
section 431 is jointly and severally liable with the
other persons who are or were members of the
group during that period to pay premium and
penalties payable by members of that group in
30 respect of that period.
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(2) For the avoidance of doubt, subsection (1) applies
whether or not the person was an employer during
the relevant period.
(3) If the Authority has been paid premium in excess
5 of what is payable by an employer who is a
member of a group within the meaning of
section 431, the Authority may offset some or all
of that excess against any premium owed by
another employer who is a member of that group.
10 (4) In this section person includes an unincorporated
body and a partnership.
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Division 2--Registration
433 Flow chart 9--registration of employer
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434 Registration of employers
(1) The Authority must maintain a register of
employers for the purposes of this Act.
(2) An employer which, immediately before 1 July
5 2014, was the holder of a WorkCover insurance
policy within the meaning of the section 7(1) of
the Accident Compensation (WorkCover
Insurance) Act 1993, as in force immediately
before that date, issued to the employer under that
10 Act and in force immediately before that date, is
taken, on and after that date, to be registered under
this section until the registration is cancelled by
the Authority.
(3) An employer to which section 430(1) applies
15 which is not registered, and is not taken to be
registered by reason of subsection (2), must apply
for registration as an employer under this Act to
the Authority in a form and manner approved by
the Authority within 60 days after the employer
20 becomes aware, or reasonably ought to have
become aware, that section 430(1) applies to the
employer.
Penalty: In the case of a natural person,
240 penalty units;
25 In the case of a body corporate,
1200 penalty units.
(4) The Authority must register the applicant as an
employer.
(5) The Authority may cancel the registration of a
30 person as an employer if satisfied that the person
is not an employer to which section 430(1)
applies.
(6) If the Authority is satisfied that--
(a) an employer is a trustee of 2 or more trusts;
35 and
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(b) 2 or more of the trusts for which the
employer is trustee carry on separate
businesses; and
(c) the employer employs workers in relation to
5 the businesses carried on by the trusts; and
(d) at least one of the businesses is carried on
independently of, and is not connected with,
the carrying on of the other business or
businesses--
10 the Authority may make--
(e) one entry in the register in respect of the
businesses that are connected; and
(f) another entry in the register in respect of a
business carried on independently of the
15 other businesses.
(7) Except as provided in subsection (6), the
Authority must not make more than one entry in
the register for the same employer.
(8) In this section--
20 holder of a WorkCover insurance policy does not
include an employer deemed under
section 7(3A) of the Accident
Compensation (WorkCover Insurance)
Act 1993 to have in force a policy of
25 insurance under subsection (1)(a) of that
section;
worker includes an apprentice.
435 Statutory contract of insurance
Subject to and in accordance with this Act, an
30 employer has a statutory contract of insurance
under which--
(a) the Authority is liable to indemnify the
employer in accordance with section 71; and
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(b) the employer is required to pay premiums in
accordance with this Act and comply with
the provisions of this Act.
Note
5 Sections 70, 71 and 72 contain provisions about the liability of the
Authority and the employer to pay compensation to a worker, the
Authority's liability to indemnify the employer and the employer's
excess and section 34 contains provisions for the recovery of
amounts from employers to which section 430(1) applies but
10 which are not registered under section 434 at the relevant time.
436 Registered employer to notify change of
circumstances
(1) A registered employer must give the Authority
written notice of change of circumstances,
15 including details of the change and the date on
which it occurred of any of the following, after--
(a) any change in the employer's--
(i) name; or
(ii) trading name; or
20 (iii) postal address; or
(b) any change in the activities carried on in a
workplace occupied by the employer;
(c) any place becoming, or ceasing to be, a
workplace occupied by the employer;
25 (d) ceasing to be--
(i) an employer; or
(ii) an employer to which section 430(1)
applies;
(e) becoming a member of a group within the
30 meaning of section 431;
(f) ceasing to be a member of a group within the
meaning of section 431.
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(2) A registered employer which does not give the
Authority written notice of change of
circumstances in accordance with subsection (1)
within 14 days after the change occurs is guilty of
5 an offence and liable to a fine not exceeding
20 penalty units in the case of a natural person or
100 penalty units in the case of a body corporate.
437 Evidence that employer is registered under this Part
A certificate issued by the Authority or a person
10 authorised by the Authority for the purposes of
this section certifying that, on a date, or during a
period, specified in the certificate, a specified
employer was or was not a registered employer is
admissible in any proceedings and is evidence of
15 the particulars certified in the certificate.
438 Books and accounts to be preserved
(1) A person who is or was an employer to which
section 430(1) applies must keep proper books
and preserve those books for a period of not less
20 than 5 years after the completion of the
transactions to which they relate.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
25 300 penalty units.
(2) This section does not apply so as to require the
preservation of any books--
(a) in respect of which the Authority has notified
the employer that preservation is not
30 required; or
(b) of a corporation that has gone into
liquidation and has been finally dissolved.
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Division 3--Rateable remuneration
439 Employer to give estimate of rateable remuneration
If the Authority gives an employer to which
section 430(1) applies a notice in writing
5 requesting an estimate by the employer of rateable
remuneration payable by the employer in respect
of a premium period specified in the notice, the
employer must, within 28 days or such longer
period as is specified in the notice, give the
10 Authority an estimate of that rateable
remuneration, in a form approved by the
Authority.
Penalty: In the case of a natural person,
120 penalty units;
15 In the case of a body corporate,
600 penalty units.
440 Authority may estimate rateable remuneration of
employer
(1) The Authority may, for the purposes of this Act,
20 estimate the amount of rateable remuneration an
employer is liable to pay in respect of a premium
period.
(2) The Authority must give notice in writing to the
employer of the amount of rateable remuneration
25 estimated under subsection (1).
441 Certified statement of rateable remuneration
The Authority may, by notice in writing given to
an employer, require the employer to give the
Authority a certified statement, in a form
30 approved by the Authority, of rateable
remuneration paid or payable by the employer in
respect of a premium period specified in the
notice.
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442 Employer to give certified statement
(1) An employer must give the certified statement
required under section 441 to the Authority within
28 days after receiving the notice or such longer
5 period as is specified in the notice.
Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.
10 (2) For the purposes of subsection (1), if the rateable
remuneration specified in a certified statement
given by an employer under that subsection is
incorrect, the provision of the certified statement
is not compliance with that subsection.
15 (3) If--
(a) an employer does not comply with
subsection (1); or
(b) the Authority considers that a certified
statement given by an employer is
20 incorrect--
the Authority may estimate the rateable
remuneration paid or payable by the employer in
respect of a specified premium period.
443 Revised estimates of rateable remuneration
25 (1) If, as a result of changed circumstances, an
employer becomes aware that the actual rateable
remuneration paid or payable by the employer in
respect of a premium period exceeds, or is likely
to exceed, by more than 20 per cent or such other
30 percentage as is prescribed, the estimate of
rateable remuneration given by the employer or
made by the Authority in respect of that period,
the employer must--
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(a) advise the Authority of the changed
circumstances; and
(b) give the Authority a revised estimate of
rateable remuneration in a form approved by
5 the Authority--
within 28 days of becoming aware of the changed
circumstances.
Penalty: In the case of a natural person,
120 penalty units;
10 In the case of a body corporate,
600 penalty units.
(2) If the actual rateable remuneration paid or payable
by an employer as at any time before the last
2 months of a premium period exceeds the
15 estimate of rateable remuneration given by the
employer or made by the Authority in respect of
that premium period, the employer must--
(a) advise the Authority; and
(b) give the Authority a revised estimate of
20 rateable remuneration in a form approved by
the Authority--
within 28 days of the actual rateable remuneration
exceeding the estimate.
Penalty: In the case of a natural person,
25 120 penalty units;
In the case of a body corporate,
600 penalty units.
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444 Where employer fails to provide accurate
information about rateable remuneration
(1) If--
(a) an employer does not comply with
5 section 439, 441 or 443; or
(b) an employer gives an incorrect statement
under section 441; or
(c) the amount specified in a certified statement
of rateable remuneration under section
10 442(1) or estimated under section 442(3) is
more than 20 per cent, or such other
percentage as is prescribed, higher than the
previous estimate of rateable remuneration
(if any) provided by the employer--
15 the employer is, if the Authority gives the
employer a notice of penalty, liable to pay, in
addition to the difference between the premium
that ought to have been payable by the employer
and the premium calculated on the basis of the
20 employer's remuneration previously estimated or
certified, as the case requires, a default penalty of
an amount equal to that difference.
(2) A default penalty under subsection (1) is due and
payable within 28 days after the notice of penalty.
25 (3) The Authority may remit the whole or a part of a
default penalty imposed under this section.
445 Worker employed under Transport Accident
Commission program
If an employer, other than the Transport Accident
30 Commission--
(a) employs a worker in a program designed
under section 12(3) of the Transport
Accident Act 1986; and
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(b) gives notice in writing to the Authority, in a
form approved by the Authority, of the
worker so employed and the remuneration
paid or payable to the worker--
5 remuneration paid or payable by the employer in
respect of the worker--
(c) is not, for the purposes of this Act, to be
taken to be rateable remuneration paid or
payable by the employer; and
10 (d) is to be taken to be rateable remuneration
paid or payable by the Transport Accident
Commission as if the worker were employed
by the Commission.
446 Superannuation benefits and calculation of
15 premiums
(1) For the purposes of the calculation of premiums
under this Part, amounts paid by an employer as a
superannuation benefit that is alleged by the
employer to be paid in respect of services
20 performed or rendered by a worker before
1 January 1998, must be shown in the employer's
records, together with the manner of calculation of
the benefit and any actuarial basis for it, to the
satisfaction of the Authority.
25 (2) For the purposes of subsection (1)--
(a) the certificate of a Fellow or Accredited
Member of the Institute of Actuaries of
Australia to the effect that the actuarial basis
on which an amount is calculated is justified
30 is evidence and, in the absence of evidence
to the contrary, proof of that fact; and
(b) if records are not kept as required by
subsection (1), the Authority is entitled to
assume, for the purposes of the calculation of
35 premiums, that a payment by an employer as
a superannuation benefit on or after
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1 January 1998 is an amount payable in
respect of services performed or rendered by
a worker on or after that date.
(3) For the purposes of any calculation of premiums,
5 the Authority may determine--
(a) whether, and the extent to which, any money
paid or payable by an employer to a
superannuation, provident or retirement fund
or scheme that is not identified by the
10 employer as paid or payable in respect of a
particular worker; and
(b) whether or not purporting to be so paid or
payable on any actuarial basis--
is to be regarded as a superannuation benefit paid
15 or payable in respect of a particular worker.
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Division 4--Premiums
447 Flow chart 10--Determination of premium process
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448 Premiums order
(1) The Governor in Council may, on the
recommendation of the Authority, by Order in
Council published in the Government Gazette,
5 make a premiums order for a premium period
specifying--
(a) the methods to be used in calculating
premiums payable by employers; and
(b) any matter or thing required or permitted by
10 this Act to be specified in a premiums order.
(2) A premiums order takes effect on and from the
date on which it is published or, if a later date is
specified in the order, that later date.
(3) A premiums order may--
15 (a) apply generally or be limited in its
application by reference to specified
exceptions or factors; and
(b) apply differently according to different
factors of a specified kind; and
20 (c) specify different methods of calculation
whether by reference to formulas, scales,
tables or other means; and
(d) apply, adopt or incorporate (with or without
modification) the provisions of any
25 document, code, standard, rule, specification
or method as formulated, issued, prescribed
or published at or before the date on which
the order is made; and
(e) authorise a specified person to determine or
30 apply a specified matter or thing.
(4) The premium payable by an employer to which
section 430(1) applies in respect of a premium
period must be calculated in accordance with the
premiums order for that premium period.
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449 Authority may give notice of premium
(1) Subject to subsection (3), the Authority may give
an employer a notice of premium payable by the
employer.
5 (2) The Authority may include a notice of penalty in
accordance with this Part in a notice of premium
given to an employer under subsection (1).
(3) The Authority may give a notice of premium to an
employer in respect of a premium period that is--
10 (a) the current premium period; or
(b) the premium period last before the current
premium period during which the employer
was an employer to which section 430(1)
applied; or
15 (c) one of the 3 premium periods immediately
preceding the premium period referred to in
paragraph (b); or
(d) any other premium period if the Authority
reasonably believes that there is, or was,
20 fraud on the part of the employer or of any
person acting, or apparently acting, on the
employer's behalf in relation to the
calculation or payment of premium.
450 Premium payable where employer not registered for
25 whole of premium period
A premium payable by an employer to which
section 430(1) applies but was not registered
under section 434 during a part of a premium
period is to be calculated in accordance with the
30 relevant premiums order and this Part and the
formula--
E
P= D×
F
where--
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P is the premium or portion of the premium
payable for the part of the premium period in
respect of which the employer was not
registered under section 434;
5 D is the amount of premium payable for the
full premium period calculated in accordance
with the premiums order for the premium
period;
E is the number of days in the premium period
10 during which the employer was not
registered under section 434;
F is the number of days in the premium period
during which the employer was an employer
to which section 430(1) applies.
15 451 Adjustment of premium in certain circumstances
(1) If the Authority considers that the premium
payable by an employer to which section 430(1)
applies should be adjusted because circumstances
specified in section 442, 443 or 444 apply, the
20 Authority may give the employer a notice of
adjusted premium.
(2) The Authority may, by notice in writing given to
an employer, adjust the amount of the premium
payable by an employer so that the amount is the
25 amount calculated in accordance with the relevant
premiums order.
(3) The Authority may give a notice of penalty in
accordance with section 444 if it gives a notice of
adjusted premium to an employer under
30 subsection (1) or (2).
452 Default penalty
(1) If an employer to which section 430(1) applies
fails to pay the premium for a premium period, or
a part of a premium period, in accordance with a
35 notice of premium, the employer is liable to pay a
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default penalty, as set out in a notice of penalty
given to the employer by the Authority, of an
amount equal to the premium payable in respect
of the premium period or part of the premium
5 period, as set out in the notice of premium given
by the Authority under section 449(1) that has not
been paid.
(2) If an employer to which section 430(1) applies for
the whole or a part of a premium period was not
10 registered under section 434 for the whole or that
part of the premium period, the employer is liable
to pay a default penalty equal to the premium
payable for the period during which the employer
was not so registered calculated in accordance
15 with section 450 and set out in a notice of penalty
given to the employer by the Authority.
453 Payment and recovery of penalties
(1) A default penalty under section 452 is due and
payable--
20 (a) on the date specified by the Authority in the
notice of penalty; or
(b) if no date is so specified, within 28 days after
the date of the notice.
(2) The Authority may recover a default penalty and a
25 late payment penalty within the meaning of
section 460 from an employer whether or not the
employer has been proceeded against for, or
convicted or found guilty of, an offence against
this Division and whether or not a review under
30 this Part is in process or pending.
(3) The Authority may remit the whole or a part of a
default penalty or late payment penalty.
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454 Late payment penalty
(1) If a premium default occurs, the employer is liable
to pay a late payment penalty within the meaning
of section 460 on the amount of premium unpaid.
5 (2) If an amount payable in accordance with a notice
of penalty given under section 444, 452, 455 or
457 is not so paid in full, the employer is liable to
pay a late payment penalty within the meaning of
section 460 on the unpaid part of the amount
10 payable in accordance with the notice of penalty.
(3) The Authority may remit the whole or a part of
late payment penalty imposed under this section.
(4) In this section, premium default means a failure
by an employer to which section 430(1) applies to
15 pay the whole or a part of the amount of a
premium that the employer is liable to pay.
455 Default penalty where failure to provide full and
true disclosure
(1) If--
20 (a) the Authority gives a notice of adjustment of
premium under section 473; and
(b) the notice states an amount of premium that
is different from any premium that was
previously calculated for the employer for
25 the premium period to which the notice
relates; and
(c) the Authority is satisfied that the premium
was miscalculated because the employer or a
person acting on behalf of the employer
30 failed to provide full and true disclosure to
the Authority in respect of matters relevant
to the calculation of the premium--
the employer, upon being given the notice
adjustment of premium under this section and a
35 notice of penalty, is liable to pay a default penalty
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of an amount equal to the difference between the
premium stated in the notice of adjustment and the
premium that was previously calculated as
payable by the employer.
5 (2) The amount of the default penalty imposed under
subsection (1) is increased by 20 per cent if, after
the Authority commences a review under
section 461 or 472, the employer, or a person
acting on behalf of the employer, took steps to
10 prevent or hinder the Authority from properly
calculating the premium payable by the employer.
(3) A default penalty under this section is due and
payable within 28 days after the date of the notice
of adjustment of premium.
15 (4) The Authority may remit the whole or any part of
a default penalty imposed under this section.
456 Application for refund of premium
(1) Proceedings for the refund of premium must not
be brought, except as provided in this section.
20 (2) If an employer claims to be entitled to receive a
refund of premium, the employer may give the
Authority an application for the refund in a form
approved by the Authority.
(3) An application under subsection (2) must be made
25 to the Authority within 5 years after the
commencement of the premium period to which
the application relates.
(4) If--
(a) an employer has made an application under
30 subsection (3); and
(b) within the period of 4 months after the
application was made, the Authority--
(i) by notice in writing to the employer
refuses the application; or
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(ii) fails to determine the application; or
(iii) determines that the employer is entitled
to a refund but fails to make the
refund--
5 the employer may bring proceedings for the
refund within the period of 4 months commencing
after--
(c) the expiration of 4 months after the
application was made; or
10 (d) if the Authority refuses the application, the
date of the notice of refusal--
whichever first occurs.
457 Premium avoidance schemes
(1) The Authority may determine that the premium
15 payable by an employer in respect of a period is
the amount that would have been calculated, or
might reasonably be expected to have been
calculated, as the premium payable by the
employer if a premium avoidance scheme had not
20 been entered into or carried out.
(2) If the Authority makes a determination in relation
to an employer under subsection (1), it must give
the employer--
(a) a notice that the premium payable by the
25 employer is the amount specified in the
determination; and
(b) a notice of penalty stating that the penalty
referred to in subsection (3) is payable.
(3) If an employer obtained or, but for subsection (1),
30 would have obtained, a premium benefit in
connection with a premium avoidance scheme, the
employer is liable to pay a default penalty equal to
twice the difference between the premium
determined under subsection (1) and the premium
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paid or payable by the employer but for that
determination.
(4) A default penalty under subsection (3) is due and
payable within 28 days after the date of the notice
5 given under subsection (2).
(5) The Authority may remit the whole or any part of
a default penalty imposed under subsection (3).
(6) In this section--
premium avoidance scheme means a scheme in
10 respect of which it could reasonably be
concluded that a person entering into, or
carrying out, the scheme or any part of the
scheme, does so for the purpose of enabling
an employer to obtain a premium benefit in
15 connection with the scheme, whether or not
the person entering into or carrying out the
scheme, or any part of the scheme, is an
employer;
premium benefit, under a premium avoidance
20 scheme, means a premium the amount of
which is less than the amount that would, or
might reasonably be expected to, have been
calculated under a premiums order as the
premium payable if the premium avoidance
25 scheme had not been entered into or carried
out.
458 Proceedings not to be brought
Except as provided in this Part, proceedings in
respect of any question concerning a reviewable
30 amount within the meaning of Division 5 must not
be brought, whether against the Authority or
otherwise.
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Division 5--Premium review
459 Flow chart 11--premium review process
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460 Definitions
In this Division--
default penalty means an amount payable in
accordance with, and set out in, a notice of
5 penalty given under section 444, 452, 455
or 457;
estimated future claim cost means an estimate
specified in a claims statement made
available to an employer, against which one
10 or more claims have been made within a
relevant claims reporting period as
determined in accordance with the relevant
premiums order, of the future cost of claims
of the employer;
15 late payment penalty, in relation to an amount of
premium unpaid or the whole or a part of an
amount payable in accordance with a notice
of penalty and unpaid, means interest at the
rate from time to time applying under
20 section 25 of the Taxation Administration
Act 1997, with interest compounding
monthly, calculated on a daily basis from the
end of the 28th day after the date of the
relevant notice given under section 449
25 or 451 or notice of penalty given under
section 444, 452, 455 or 457;
premium means an amount specified in a notice
of premium, or of adjusted premium, given
under this Part and paid or payable, or
30 purportedly paid or payable, as premium;
reviewable amount means--
(a) premium; or
(b) default penalty; or
(c) late payment penalty; or
35 (d) estimated future claim cost.
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461 Employer may apply for review of a reviewable
amount under this Division
(1) Subject to subsection (2), an employer may apply
to the Authority for a review of a reviewable
5 amount.
(2) The review of a reviewable amount that is an
estimated future claim cost is limited to the
question whether the estimate is erroneous in
respect of a coding error or other data entry error.
10 (3) An application for a review of a reviewable
amount that is an estimated future claim cost must
include details of the error the employer claims
was made in its calculation.
(4) On receiving an application under this section for
15 a review of a reviewable amount, the Authority
must--
(a) review the reviewable amount in accordance
with this Division; or
(b) in accordance with section 464, decline to
20 review the reviewable amount.
(5) Nothing in this section affects an employer's
obligation to pay a reviewable amount as and
when due.
462 Time for making, and form of, application for
25 review
(1) An application for review made under section
461(1) must--
(a) be in writing in a form approved by the
Authority; and
30 (b) state the grounds for review; and
(c) attach any document relevant for the
purposes of the review; and
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(d) unless section 463 applies, be lodged with
the Authority within 60 days after the date of
service of the notice that is the subject of the
application.
5 (2) An application for review is taken to have been
lodged with the Authority when it is received by
the Authority.
463 Application for review made out of time
(1) The Authority may permit an employer to make
10 an application for review after the 60 day period.
(2) The employer seeking to make an application for
review out of time must state, in writing, the
circumstances concerning, and the reasons for, the
failure to make the application within the 60 day
15 period.
(3) The Authority may grant permission to make an
application out of time unconditionally or subject
to conditions.
(4) Proceedings to seek review of a decision made by
20 the Authority under this section not to grant
permission to make an application out of time or
to grant permission to make an application out of
time subject to conditions, must not be brought,
whether against the Authority or otherwise.
25 464 Authority may decline application for review
(1) The Authority may decline to conduct a review of
a reviewable amount under this Division if--
(a) the application made under section 461 is in
respect of matters that have been reviewed
30 by the Authority on a prior occasion and the
employer--
(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
application for review; or
(b) the Authority considers that the application
5 made under section 461 is misconceived or
lacking in substance.
(2) If the Authority declines to conduct a review
under subsection (1), the Authority must notify
the employer of the Authority's decision, in
10 writing, within 28 days of receiving the
application under section 461.
465 Withdrawal of application for review
An employer may, in writing, withdraw an
application for review of a reviewable amount
15 under this Division at any time before the
Authority has made a determination under
section 468.
466 Time period for review
(1) Subject to sections 464 and 468, the Authority
20 must, within 90 days after receiving an application
under section 462 for review of a reviewable
amount, conduct the review and make a
determination under section 468.
(2) The period specified in subsection (1) may be
25 extended--
(a) by agreement between the Authority and the
employer; or
(b) if the Authority authorises a person under
section 553 to conduct an inspection, by any
30 further period as is specified by the
Authority in a notice in writing given to the
employer before the end of that period.
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467 Request for information and suspension of review
(1) The Authority may, by written notice, request an
employer to provide information relevant to the
review to the Authority within the time specified
5 in the notice.
(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 the time specified
10 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 the following--
15 (a) that the suspension takes effect on service of
the suspension notice;
(b) the period of the suspension;
(c) that the review has been suspended pending
the provision of the information relevant to
20 the review that the Authority has requested;
(d) the details of the requested information;
(e) that the review will remain suspended until
the earlier of--
(i) the period for suspension specified in
25 the suspension notice is complete; or
(ii) the employer provides the Authority
with the requested information.
(4) If an employer does not provide the Authority
with information requested by the Authority by
30 the completion of the stated 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 deemed
5 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 on which
10 the application was deemed to be withdrawn
under subsection (4); and
(b) is accompanied by the information specified
in the suspension notice.
468 Determination of review
15 (1) The Authority must, after reviewing an
application under section 462 determine that--
(a) the reviewable amount is confirmed; or
(b) the reviewable amount be adjusted as
specified in the determination.
20 (2) The Authority, in making a determination under
this section, may consider any relevant
information.
(3) The Authority must--
(a) give notice to the employer of the
25 determination made under this section; and
(b) in the notice, give the employer reasons for
the determination.
(4) If the determination relates to a reviewable
amount that is premium, the Authority is entitled
30 to recover only the amount of any increased
premium resulting from an adjustment under
subsection (1) if the premium relates to one or
more of the following--
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(a) the premium period current at the date of the
application for review under section 461;
(b) any of the 4 premium periods immediately
preceding the premium period referred to in
5 paragraph (a);
(c) any other premium period if the Authority
reasonably believes that there is, or was,
fraud on the part of the employer or of any
person acting, or apparently acting, on the
10 employer's behalf in relation to the
calculation or payment of premium.
(5) If the determination under subsection (1) makes
an adjustment to a reviewable amount that is
premium that results in an employer recovering
15 premium, the recovery is limited to--
(a) the premium period current at the date of the
application for review under section 461; and
(b) any of the 4 completed premium periods
before that period.
20 469 Payments following review of reviewable amount
(1) If--
(a) under section 468, the Authority adjusts a
reviewable amount that is premium in
respect of a premium period; and
25 (b) the premium is higher than the premium
previously paid by the employer in respect of
that premium period--
the employer is liable to pay the Authority the
difference between the premium paid and the
30 adjusted premium, within 28 days after receiving
notice of the determination under section 468.
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(2) If--
(a) under section 468, the Authority adjusts a
reviewable amount that is premium in
respect of a premium period; and
5 (b) the adjusted premium is lower than the
premium previously paid by the employer in
respect of that period--
the Authority is liable to pay the employer the
difference between the premium paid and the
10 adjusted premium, with interest in accordance
with section 470, within 28 days after the notice
of determination under section 468.
470 Interest payable following review of reviewable
amount
15 (1) Subject to subsection (2), if it is determined,
following review under section 461, 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.
20 (2) The Authority is not required to pay interest 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; or
25 (b) was revised by the employer after the
Authority gave the notice of premium.
(3) The interest must be calculated--
(a) from the date on which the premium paid by
the employer exceeded the lower amount of
30 premium the Authority determined to be
payable following review under section 461;
and
(b) to the date of that determination by the
Authority.
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(4) In this section, prescribed rate means the interest
rate specified in section 7(2) of the Taxation
(Interest on Overpayments) Act 1986.
471 Deemed determinations of the Authority
5 (1) Subject to subsection (2), if the Authority does
not, within 90 days of receiving an application by
an employer under section 461 for a review of a
reviewable amount--
(a) give a notice under section 464; or
10 (b) give a notice of suspension under
section 467; or
(c) make a determination under section 468--
the Authority is deemed to have made a
determination under section 468 to confirm the
15 reviewable amount.
(2) If--
(a) the period for review by the Authority has
been extended under section 466(2); and
(b) at the end of that extended period, the
20 Authority has not given a notice referred to
in subsection (1)(a) or (b) or made a
determination referred to in
subsection (1)(c)--
the Authority is deemed to have made a
25 determination under section 468 to confirm the
reviewable amount.
Note
Division 6 provides a right of review or appeal within 60 days
after a deemed determination has effect.
30 472 Review of premium by Authority at its discretion
(1) The Authority may, in its absolute discretion,
review the amount calculated as premium in
respect of one or more premium periods.
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(2) In conducting the review, the Authority may have
regard to any matter relevant to the determination
or calculation of the premium.
473 Adjustment of premium after review
5 (1) This section applies if, as the result of a review of
a premium under section 472, the Authority is of
the opinion that the amount calculated as the
premium was not, or is not, calculated in
accordance with the relevant premiums order.
10 (2) The Authority must, by notice in writing given to
the employer, adjust the amount of the premium
so that the amount is the amount calculated in
accordance with the relevant premiums order.
(3) A notice to an employer under subsection (2) must
15 state the amount of premium that is payable, or
that should have been paid, for the relevant
premium period.
(4) On the giving of the notice to the employer, the
amount stated under subsection (2) becomes the
20 premium payable by the employer.
474 Application of adjustment powers under section 473
The Authority may recover the amount of any
increased premium resulting from an adjustment
under section 473 only if the premium relates to
25 one or more of the following--
(a) the premium period to which the notice
under section 473 relates;
(b) any of the 4 premium periods immediately
before that period;
30 (c) any other premium period if the Authority
reasonably believes that there is, or was,
fraud on the part of the employer or of any
person acting, or apparently acting, on the
employer's behalf in relation to the
35 calculation or payment of the premium.
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475 Recovery of increased premium
The Authority is entitled to recover the amount of
any increased premium resulting from a
determination made by the Authority under
5 section 457 if the premium relates to the current
premium period or any premium period before the
current premium period.
476 Refund of premium may be offset
If the Authority has been paid premium in excess
10 of what is payable by an employer, the Authority
may--
(a) refund the excess, including any interest, to
the employer; or
(b) offset the excess, including any interest,
15 against any amount of premium owed by the
employer to the Authority for any premium
period.
477 Exercise of review and adjustment powers
Subject to this Division, the Authority may
20 exercise its powers under this Part to review or
adjust a premium whether or not--
(a) notice of the premium has been given to the
employer or the premium has been paid;
(b) the review or adjustment applies to the
25 current premium period or any other period;
(c) the Authority has previously reviewed or
adjusted the premium;
(d) any circumstances exist that would, but for
this paragraph, estop the Authority from
30 conducting a review of, or adjusting the
amount of, the premium.
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Division 6--Review by VCAT and appeal to Supreme Court
478 Right of review and appeal
(1) If--
(a) an employer is dissatisfied with--
5 (i) a determination made by the Authority
under section 468(1); or
(ii) a determination deemed under
section 471 to have been made by the
Authority; or
10 (b) an employer has received notice that the
Authority has declined to conduct a review
under section 464; or
(c) 90 days have passed since an employer's
application under section 461 was received
15 by the Authority and the Authority has not--
(i) suspended the review under
section 467; or
(ii) made a determination under
section 468; or
20 (iii) given notice of a decision to decline to
conduct a review--
the employer, in writing, may request the
Authority to refer the matter to VCAT or to treat
the request as an appeal and cause the matter to be
25 set down for hearing at the next sittings of the
Supreme Court.
(2) The employer's request--
(a) in the circumstances referred to in subsection
(1)(a) or (b), must be made within 60 days
30 after the date of the notice given to the
employer of the Authority's determination
under section 468(1) or section 471; or
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(b) in the circumstances referred to in subsection
(1)(c), may be made at any time after the
90 day period referred to in
subsection (1)(c).
5 (3) Subject to section 480, within 60 days after the
request, the Authority must refer the matter for
review or cause the matter to be set down for
hearing accordingly.
479 Request for further and better particulars
10 (1) Within 30 days after receiving a request to refer a
matter for review or treat a request as an appeal,
the Authority may require the employer to give
further and better particulars of the matter.
(2) If, within 30 days after giving the notice--
15 (a) particulars are given, the Authority must,
subject to section 480, refer the matter or
cause it to be set down for hearing; or
(b) particulars are not given, the Authority must
not refer the matter or cause it to be set down
20 for hearing.
480 Payment of fee or filing fee before review or appeal
(1) An employer who makes a request under section
478(1) for a review or appeal must pay to VCAT
or the Supreme Court the relevant application fee
25 or filing fee.
(2) The Authority must not refer a matter to VCAT or
cause a matter to be set down for hearing by the
Supreme Court unless the relevant application fee
or filing fee has been paid to VCAT or the
30 Supreme Court.
481 Authority to lodge material
(1) If a proceeding is commenced for review of a
matter or a matter is set down for hearing by the
Supreme Court, the Authority must lodge with
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VCAT or the Supreme Court 2 copies of all
documents relating to--
(a) the Authority's determination; and
(b) the employer's objection; and
5 (c) the disallowance of the employer's objection.
(2) Copies must be lodged under subsection (1)
within 28 days after the day on which the
Authority referred the matter to VCAT or caused
the matter to be set down for hearing by the
10 Supreme Court.
482 Grounds of review
On a review by VCAT or an appeal to the
Supreme Court--
(a) the employer's case is limited to the grounds
15 set out in the employer's application for
review by the Authority under section 461;
and
(b) the Authority's case is limited to the grounds
on which--
20 (i) the Authority made a decision on an
application by an employer under
section 461; or
(ii) the Authority declined to conduct
a review of a decision under
25 section 464--
as the case requires or VCAT or the Supreme
Court otherwise orders.
483 Onus on review or appeal
On a review or an appeal relating to a
30 determination referred to in section 478, the
employer has the onus of proving the employer's
case.
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484 Review by VCAT
(1) If an application concerning a determination is
made to VCAT, VCAT--
(a) must review the determination; and
5 (b) subject to subsection (2), may confirm or
adjust the reviewable amount or vary the
determination.
(2) If the employer does not appear before VCAT,
VCAT must confirm the reviewable amount or
10 determination.
(3) Despite subsection (2), if good cause is shown,
VCAT may, within the time prescribed by the
regulations, re-open and review the matter.
Note
15 For costs, see section 109 of the Victorian Civil Administration
Act 1998.
485 Supreme Court appeals
(1) An appeal to the Supreme Court against a
determination of the Authority referred to in
20 section 478 is to be heard de novo and the Court
may--
(a) by order confirm the reviewable amount; or
(b) adjust the reviewable amount in accordance
with this Part; or
25 (c) vary the determination; or
(d) make any other order it thinks fit.
(2) The costs of the appeal are in the discretion of the
Supreme Court.
486 Authority to give effect to decision on review
30 Within 60 days after a decision or order of VCAT
or the Supreme Court becomes final, the
Authority must take any action that is necessary to
give effect to the decision or order.
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487 If no appeal from a decision or order
If no appeal to a court from--
(a) a decision of VCAT under this Division; or
(b) a decision of the Supreme Court on an
5 appeal--
is instituted within 30 days after the day on which
the decision is made, the decision is taken, for the
purposes of section 486, to have become final at
the end of that period.
10 Division 7--Recovery of premium or penalty
488 Recovery of premium or penalty
(1) Any premium or penalty imposed by or under this
Part and which is unpaid may be sued for and
recovered, irrespective of the amount of the
15 premium or penalty, in any court of competent
jurisdiction by the Authority suing in the name of
the Authority or by a person employed in the
administration of this Act and authorised to sue
for and recover premium or penalty on behalf of
20 the Authority suing in the name of the Authority.
(2) 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 imposed under this Part is--
25 (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 penalty is payable
under that arrangement; or
30 (b) otherwise, the date specified in a notice
given by the Authority under this Part as the
date on which the premium or penalty is
payable.
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(3) Proceedings under this section brought in the
name of the Authority are, in the absence of
evidence to the contrary, deemed to have been
brought by authority of the Authority.
5 (4) The person referred to in subsection (1) may
appear in proceedings brought under this section
on behalf of the Authority.
(5) Despite any Act or any rule of the court to the
contrary, in any proceedings for the recovery of a
10 premium or penalty against any person it is
sufficient to disclose a cause of action in those
proceedings if the statement of claim specifies, in
respect of what remuneration the premium or
penalty is payable--
15 (a) the amount sought to be recovered; and
(b) the date on which the amount was payable;
and
(c) any further or other particulars as the
Authority thinks necessary to fully inform
20 the defendant of the nature of the statement
of claim.
(6) In this section, penalty includes default penalty
and late payment penalty within the meaning of
section 460.
25 489 Evidence
(1) For the purposes of proceedings against a person
for the recovery of a premium, a certificate
purporting to be issued by the Authority certifying
that--
30 (a) the person named in the certificate was liable
to pay the premium in respect of the period
specified in the certificate; or
(b) an assessment of the premium was duly
made against the person; or
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(c) the particulars of the assessment are as stated
in the certificate; or
(d) notice of premium or adjusted premium was
given to the person; or
5 (e) the amount specified in the certificate was at
the date of the certificate payable as the
premium by the person named in the
certificate--
is evidence of the matters so certified.
10 (2) The production of--
(a) a notice of premium or adjusted premium; or
(b) a document purporting to be executed in
accordance with section 504 and purporting
to be a copy of a notice of premium or
15 adjusted premium--
is evidence of the due making of an assessment
and that the amount and all particulars of the
assessment are correct, except in review or appeal
proceedings (in which it is proof in the absence of
20 proof to the contrary).
(3) The production of a document purporting to be
executed in accordance with section 504, being a
document purporting to be a copy of, or extract
from, any document or return furnished to, or
25 issued by, the Authority is, for all purposes,
sufficient evidence of the matter contained in it,
without producing the original.
Division 8--Reviews by Minister
490 Review of setting of premiums
30 (1) The Minister must, before 1 July 2017 and once in
each period of 3 years after that date, cause a
review to be undertaken by an independent expert
review body on any matter relating to the setting
of premiums under this Part.
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(2) The Minister must, before 1 July 2017 cause a
review to be undertaken by an expert review body
on the operation of Division 6.
__________________
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PART 11--THE VICTORIAN WORKCOVER AUTHORITY
Division 1--Constitution
491 The Authority
(1) The Victorian WorkCover Authority established
5 under section 18 of the Accident Compensation
Act 1985 as in force immediately before 1 July
2014 continues in existence.
(2) The Authority--
(a) is a body corporate with perpetual
10 succession; and
(b) may sue and be sued; and
(c) may acquire, hold and dispose of real and
personal property; and
(d) may do and suffer all acts and things that a
15 body corporate may by law do or suffer.
492 Objectives of the Authority
The objectives of the Authority are to--
(a) manage the accident compensation scheme
as effectively, efficiently and economically
20 as is possible; and
(b) manage the accident compensation scheme
in a financially viable manner; and
(c) ensure that appropriate compensation is paid
to injured workers in the most socially and
25 economically appropriate manner and as
expeditiously as possible; and
(d) develop such internal management structures
and procedures as will enable the Authority
to perform its functions and exercise its
30 powers effectively, efficiently and
economically; and
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(e) administer this Act, the Accident
Compensation Act 1985, the Workers
Compensation Act 1958, the Occupational
Health and Safety Act 2004, the
5 Equipment (Public Safety) Act 1994 and
the Dangerous Goods Act 1985.
493 Functions of the Authority
(1) The functions of the Authority are to--
(a) receive and assess and accept or reject claims
10 for compensation; and
(b) pay compensation to persons entitled to
compensation under this Act or the Accident
Compensation Act 1985; and
(c) assist employers and workers in achieving
15 healthy and safe working environments; and
(d) promote the effective occupational
rehabilitation of injured workers and their
early return to work; and
(e) encourage the provision of suitable
20 employment opportunities to workers who
have been injured; and
(f) provide insurance in accordance with this
Act and to determine, collect and recover
premiums in accordance with this Act; and
25 (g) ensure that the accident compensation
scheme is competitive and fully-funded; and
(h) regulate and make recommendations to the
Minister in relation to self-insurers; and
(i) continue to fund a WorkCover Advisory
30 Service; and
(j) administer the WorkCover Authority Fund;
and
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(k) implement measures to deter and detect
fraudulent workers compensation claims;
and
(l) conduct or defend proceedings before a court
5 or tribunal; and
(m) defend actions against employers under this
Act or the Accident Compensation Act
1985 and at common law; and
(n) arrange or facilitate the provision of
10 interpreter services to assist injured workers;
and
(o) monitor the operation of occupational health
and safety, rehabilitation and accident
compensation arrangements; and
15 (p) identify (and as far as practicable minimise
or remove) disincentives for injured workers
to return to work or for employers to employ
injured workers; and
(q) develop and implement programs to provide
20 incentives to employers and to assist
employers in implementing measures to
prevent injuries and diseases at workplaces
and to improve occupational health and
safety and return to work results; and
25 (r) provide assistance in relation to the
establishment and operation of occupational
rehabilitation programs of employers and to
facilitate the development of rehabilitation
plans and facilities to assist injured workers;
30 and
(s) encourage liaison between employers,
occupational rehabilitation service providers,
medical practitioners and other health
professionals in the interests of early and
35 effective rehabilitation of injured workers;
and
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(t) undertake, and to provide funds for the
undertaking of, research and educational
programs for the purpose of assisting the
Authority in achieving its objectives or
5 performing its functions; and
(u) initiate and encourage research to identify
efficient and effective strategies for the
prevention of occupational injury and disease
and for the rehabilitation of persons who
10 suffer occupational injury or disease; and
(v) ensure the availability of high quality
education and training for the prevention and
rehabilitation of occupational injury and
disease and for the rehabilitation of persons
15 who suffer occupational injury or disease;
and
(w) develop equitable and effective programs to
identify and reduce areas of unnecessarily
high cost to the accident compensation
20 scheme and, as far as possible, reduce those
costs; and
(x) develop programs to meet the special needs
of target groups, including workers who
suffer severe injuries, and injured workers
25 who are unable to return to their pre-injury
occupation; and
(y) foster a co-operative consultative
relationship between management and labour
in relation to the health, safety and welfare of
30 persons at work; and
(z) collect and publish statistics and to conduct
statistical analysis of occupational injuries
and diseases; and
(za) provide information services to workers,
35 employers, and the general community; and
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(zb) collaborate with other bodies and provide
funds for the purposes of--
(i) developing national policies in relation
to occupational health and safety and
5 workers' compensation; and
(ii) enhancing cooperation between
Australian jurisdictions in relation to
the health and safety of Australian
workers; and
10 (iii) improving occupational health and
safety outcomes and workers'
compensation arrangements in
Australia; and
(iv) harmonising workers' compensation
15 arrangements across the
Commonwealth, States and Territories;
and
(zc) carry out other functions specified under this
Act, the Accident Compensation Act 1985
20 or the Workers Compensation Act 1958, or
the regulations or under any other Act or
regulations under any other Act.
(2) In performing its functions, the Authority must--
(a) promote the prevention of injuries and
25 diseases at the workplace and the
development of healthy and safe workplaces;
and
(b) ensure the efficient, effective and equitable
occupational rehabilitation and compensation
30 of persons injured at work; and
(c) ensure the financial viability and efficient
operation of the accident compensation
scheme; and
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(d) provide advice to the Minister in relation to
matters specifically referred to the Authority
by the Minister and generally in relation to
the administration of this Act, the Accident
5 Compensation Act 1985, the Workers
Compensation Act 1958 and the accident
compensation scheme.
(3) The function of the Authority under subsection
(1)(q) does not create any obligation that gives
10 rise to any liability of, or a claim against, the
Authority or its agents.
494 Powers of the Authority
(1) Subject to this Act, the Authority has the power to
do all things necessary or convenient to be done
15 for or in connection with the performance of its
functions and to enable it to achieve its objectives.
(2) Without limiting or derogating from the generality
of subsection (1), the Authority may undertake
and carry on in Victoria or elsewhere the business
20 of insurance for the purpose of providing accident
insurance.
(3) For the purposes of subsection (2), accident
insurance means insurance under and for the
purposes of this Act or the Accident
25 Compensation Act 1985 and is not limited by
reference to the practices, usages, form and
procedure for the time being followed by other
persons engaged in the general business of
insurance.
30 (4) Without limiting or derogating from the generality
of the powers of the Authority under this Act, the
powers of the Authority include--
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(a) the power to enter into agreements or
arrangements with--
(i) employers liable to pay compensation
under the Workers Compensation Act
5 1958; and
(ii) employers liable to pay damages in
respect of injury or disease; and
(iii) insurers liable to indemnify employers
in whole or in part in respect of that
10 liability--
upon such terms as the Authority deems
appropriate, and without limiting or
derogating from the generality of the
foregoing, agreements or arrangements under
15 which the Authority undertakes to assume or
discharge that liability or any part of that
liability; and
(b) the power to do all things necessary or
convenient to be done for or in connection
20 with the performance of its functions under
Division 5 or Part 7 of this Act or
Division 6A or 6B of Part IV of the
Accident Compensation Act 1985; and
(c) the power to enter into agreements or
25 contracts with a corresponding Authority for
or with respect to--
(i) the Authority performing the functions
or exercising the powers of the
corresponding Authority as its agent;
30 and
(ii) the Authority performing any works or
providing services for the
corresponding Authority; and
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(iii) the Authority providing the
corresponding Authority with the use of
its facilities or the services of its staff;
and
5 (iv) the corresponding Authority
performing the functions or exercising
the powers of the Authority as its agent;
and
(v) the corresponding Authority
10 performing any works or providing
services for the Authority; and
(vi) the corresponding Authority providing
the Authority with the use of its
facilities or the services of its staff; and
15 (d) in addition to, and not limited by, any other
power under this section, the power to
provide related and ancillary services.
495 Accountability of the Authority
(1) The Authority is subject to--
20 (a) the general direction and control of the
Minister; and
(b) any specific directions given by the Minister.
(2) If the Authority has been given a specific
direction by the Minister, the Authority may
25 publish the direction in the Government Gazette.
496 Guidelines, forms and advisory practice notes
(1) The Authority may make or issue guidelines,
forms or advisory practice notes for the purposes
of--
30 (a) improving the management of claims; and
(b) assisting in the prevention of injuries; and
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(c) the return to work of injured workers--
within the accident compensation scheme
generally.
(2) The Authority must ensure that guidelines, forms
5 or advisory practice notes made or issued under
this section are published and are generally
available.
497 Power to give advice on compliance
(1) The Authority may give advice to a person who
10 has an obligation under this Act, the Accident
Compensation Act 1985 or the Workers
Compensation Act 1958 about complying with
that obligation.
(2) The giving of such advice by the Authority does
15 not give rise to--
(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 be
20 available to that person.
(3) The Authority's power under this section to give
advice may also be exercised by an inspector
within the meaning of section 126 or, if the
Authority authorises any other person to exercise
25 the power, that other 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 499(3)).
30 498 Chief Executive Officer
(1) There is to be a Chief Executive Officer of the
Authority appointed by the Governor in Council.
(2) The Chief Executive Officer is a Director.
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(3) Subject to this Part, the Chief Executive Officer
holds office for the term, not exceeding 5 years,
specified in the instrument of appointment.
(4) The Chief Executive Officer is eligible for
5 re-appointment.
(5) The terms and conditions of appointment of the
Chief Executive Officer are as specified in the
instrument of appointment.
(6) The Chief Executive Officer is to manage and
10 control the affairs of the Authority in accordance
with the policies of the Board.
(7) Any act, matter or thing done in the name of, or
on behalf of, the Authority, by the Chief
Executive Officer is to be taken to have been done
15 by the Authority.
499 Officers and employees
(1) The Authority--
(a) must appoint such officers and employees as
are necessary to enable the Authority to
20 perform its functions, exercise its powers and
achieve its objectives; and
(b) may employ any other persons for the
purposes of enabling the Authority to
perform its objectives and functions and
25 exercise its powers.
(2) If a person at the date of appointment as the Chief
Executive Officer of the Authority or as an officer
or employee of the Authority is an officer within
the meaning of the State Superannuation Act
30 1988, that person continues to be such an officer
while serving with the Authority.
(3) An employee of the Authority (including a person
appointed as casual staff or a consultant) is not
subject to any action, liability, claim or demand
35 for any matter or thing done or omitted to be done
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or contract entered into by the Authority if the
matter or thing is done or omitted to be done or
the contract is entered into in good faith for the
purposes of performing a duty or carrying out a
5 power or function of the Authority under this or
any other Act.
(4) Any liability resulting from an act or omission
that, but for subsection (3), would attach to an
employee, attaches instead to the Authority.
10 500 Delegation
(1) The Authority may, by instrument, delegate to any
person any function or power of the Authority
under this Act or any other Act including, subject
to subsection (2), this power of delegation.
15 (2) A person to whom a function or power has been
delegated under subsection (1) may, subject to and
in accordance with the approval of the Authority
given generally or in a particular case, by
instrument in writing, authorise another person to
20 perform the function or exercise the power so
delegated.
(3) An authorisation under subsection (2) may be
made subject to such conditions or limitations as
are specified in the instrument of authorisation.
25 (4) A function or power performed or exercised by a
person authorised under subsection (2) is to be
taken to have been performed or exercised by the
Authority.
(5) An authority given by a delegate of the Authority
30 under subsection (2) may be revoked at any time
by the delegate by instrument in writing and,
where a delegation under which the authority was
given is revoked, the authority is revoked.
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(6) A delegation must not be made under this section
to any person, other than the Chief Executive
Officer appointed under section 498 or a Director
of the Board appointed under section 503 or an
5 officer or employee of the Authority, in respect of
any power, function, authority or discretion to
which section 10B of the Dangerous Goods Act
1985 applies.
(7) If a person purports to perform a function or
10 exercise a power under this Act, it is to be
presumed, unless the contrary is established, that
the person is duly authorised by a delegation
under subsection (1) or by an authority under
subsection (2) given pursuant to a delegation to
15 perform the function or exercise the power.
(8) The giving of an authority under subsection (2)
does not prevent a performance of the function or
the exercise of the power by the person by whom
the authority was given.
20 501 Authorised agents
(1) The Authority may for the purposes of this Act
and the Accident Compensation Act 1985
appoint by an instrument any person to be an
authorised agent of the Authority.
25 (2) An authorised agent must act as an agent subject
to--
(a) such terms and conditions as are specified in
the instrument of appointment; and
(b) such directions as are given in writing to the
30 authorised agent by the Authority.
(3) An authorised agent is entitled to receive from the
Authority such remuneration as is agreed between
the Authority and the authorised agent for acting
as an agent.
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(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
5 direction 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 or failed to comply with
10 any of the terms and conditions specified in the
instrument of appointment or a direction given
under subsection (2)(b).
(6) An authorised agent must keep accounting records
relating to transactions and affairs of the
15 authorised agent under this section in the manner
and form specified by the Authority and must
retain those records for 7 years.
(7) For the purposes of this section the Authority--
(a) may at any time, by notice in writing give a
20 direction to an authorised agent or a person
who has been an authorised agent, requiring
the production, at such time and place as are
specified in the direction, of such accounting
records relating to the transactions and
25 affairs of the authorised agent or of the
person while an authorised agent, as are so
specified and in such form as is so specified;
and
(b) may audit and inspect the accounting records
30 and require the giving of information by
authorised agents to the Authority or any
person authorised by the Authority.
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Division 2--Board of Management
502 Establishment of Board
(1) The Board of Management of the Authority
established under section 24 of the Accident
5 Compensation Act 1985 as in force immediately
before 1 July 2014 continues in existence.
(2) The Board--
(a) may exercise all the powers of the Authority;
and
10 (b) must give general directions as to the
carrying out of the objectives and functions
of the Authority; and
(c) must ensure that the Authority is managed
and operated in an efficient and economic
15 manner.
503 Constitution of Board
The Board is to consist of not more than
8 Directors appointed by the Governor in Council
on the nomination of the Minister.
20 504 Execution of documents
(1) A document is executed by the Authority if the
document is signed by--
(a) 2 Directors; or
(b) one Director and the person designated by
25 the Board to be the Secretary of the Board.
(2) A person may assume that a document has been
duly executed by the Authority if the document
appears to have been signed in accordance with
subsection (1).
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505 Judicial notice of signatures
All courts, judges and persons acting judicially
must take judicial notice of the signatures on a
document which appears to have been signed in
5 accordance with section 504(1).
506 Directors generally
(1) Subject to this Part, a Director holds office--
(a) for a term not exceeding 5 years; and
(b) subject to the terms and conditions--
10 specified in the instrument of appointment.
(2) A Director is eligible for re-appointment.
(3) A Director, other than a Director who is an officer
or employee who holds a full-time statutory office
within the meaning of the Public Administration
15 Act 2004 or a full-time office with a statutory
corporation, is entitled to be paid--
(a) the remuneration as is specified in the
instrument of appointment or as may be
fixed from time to time by the Governor in
20 Council; and
(b) the travelling and other allowances and
expenses as may be fixed from time to time
by the Governor in Council.
(4) The Public Administration Act 2004 (other than
25 Part 3 of that Act) applies to a Director in respect
of the office of Director.
507 Acting Directors
(1) The Governor in Council may appoint a person to
act in the office of a Director during any period
30 when--
(a) the Director--
(i) is absent from duty; or
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(ii) for any reason is unable to perform the
duties of the office; or
(b) the office is vacant.
(2) A person appointed under this section while acting
5 in the office of a Director--
(a) has and may exercise the powers and
perform the duties of that office; and
(b) unless that person is an officer or employee
who holds a full-time statutory office within
10 the meaning of the Public Administration
Act 2004 or a full-time office with a
statutory corporation, is entitled to be paid
the remuneration and allowances to which a
holder of the office would have been
15 entitled.
(3) The Governor in Council may at any time
terminate an appointment under subsection (1).
(4) If a person has been appointed under subsection
(1) to act in the place of a Director during a period
20 of inability of the Director and the Director ceases
to hold office without having resumed the
performance of the duties of the office, the period
of appointment of the person is deemed to
continue until--
25 (a) the appointment is terminated by the
Governor in Council; or
(b) the expiration of the period of 12 months
after the date on which the Director ceased to
hold office--
30 whichever first occurs.
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508 Vacancy, resignation and termination
(1) A Director ceases to hold office if he or she--
(a) becomes an insolvent under administration;
or
5 (b) is convicted, or found guilty, of an indictable
offence or an offence that, if committed in
Victoria, would be an indictable offence.
(2) A Director may resign his or her office by writing
signed by him or her and delivered to the
10 Governor in Council.
(3) The Governor in Council may remove a Director
from office--
(a) if the Director is absent from 3 consecutive
meetings in any year without leave granted
15 by the Minister; or
(b) on any ground on which the Governor in
Council is satisfied that the Director is unfit
to hold office.
509 Chairperson
20 (1) The Governor in Council may, by instrument,
appoint one of the Directors, other than the Chief
Executive, to be Chairperson of the Board for
such period, and on such terms and conditions, as
are specified in the instrument of appointment.
25 (2) The Governor in Council may at any time
terminate an appointment of a person under
subsection (1), by notice in writing given to the
person.
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(3) If--
(a) the Chairperson--
(i) is absent from duty; or
(ii) is unable, whether by reason of illness
5 or otherwise, to perform the duties of
the office; or
(b) the office of Chairperson is vacant--
the Governor in Council may appoint another
Director to act in the office of the Chairperson.
10 (4) A Director appointed under subsection (3) while
acting in the office of the Chairperson--
(a) has all the rights and powers, and must
perform all the duties, of the Chairperson;
and
15 (b) unless the Director is an officer or employee
who holds a full-time statutory office within
the meaning of the Public Administration
Act 2004 or a full-time office with a
statutory corporation, the Director is entitled
20 to be paid--
(i) such remuneration as is specified in the
instrument of appointment or as may be
fixed from time to time by the
Governor in Council; and
25 (ii) such travelling and other allowances as
may be fixed from time to time by the
Governor in Council.
(5) If a Director has been appointed under subsection
(3) to act in the place of the Chairperson during a
30 period of inability of the Chairperson and the
Chairperson ceases to hold office without having
resumed the performance of the duties of the
office, the period of appointment of the Director
so appointed is deemed to continue until--
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(a) the appointment is terminated by the
Governor in Council; or
(b) the expiration of the period of 12 months
after the date on which the Chairperson
5 ceases to hold office--
whichever first occurs.
510 Meetings of the Board
(1) The Chairperson--
(a) may at any time; and
10 (b) must, if requested to do so by a Director--
convene a meeting of the Board to be held at a
place and time determined by the Chairperson.
(2) The Board may transact any of its business at a
meeting at which the Directors or any of the
15 Directors participate by telephone, closed-circuit
television or any other means of communication
that does not require the presence of each director
in the same place.
(3) The Chairperson must preside at any meeting of
20 the Board at which the Chairperson is present.
(4) If the Chairperson is not present at the time fixed
for the commencement of a meeting of the
Board--
(a) the acting Chairperson must preside; or
25 (b) if there is no acting Chairperson, the
Directors present at the meeting must elect a
Director to preside.
(5) A majority of Directors in office at the time
constitute a quorum at a meeting of the Board.
30 (6) Subject to the presence of a quorum, the Board
may act notwithstanding any vacancy in the office
of a Director.
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(7) A question arising at a meeting of the Board is to
be determined by a majority of votes of the
Directors present and voting on the question.
(8) In the event of an equality of votes on a question
5 at a meeting of the Board, the Chairperson or
other person presiding at that meeting has a
second or casting vote.
(9) Subject to this Act, the Board may regulate its
own procedure.
10 (10) An act or decision of the Board is not invalid by
reason only--
(a) of a vacancy in the office of a Director; or
(b) of any defect or irregularity in or in
connection with the appointment of a
15 Director; or
(c) in the case of a person appointed to act as
Chairperson or as a Director, that the
occasion for so acting has not arisen or has
ceased.
20 511 Pecuniary interests of Directors
(1) A Director who has any pecuniary interest in a
matter being considered or about to be considered
by the Board or in any other matter in which the
Authority is concerned must as soon as practicable
25 after the relevant facts have come to the Director's
knowledge, declare the nature of that interest at a
meeting of the Board.
(2) The requirements of subsection (1) do not apply in
any case where the interest of the Director
30 consists only of being a member or creditor of a
company which has an interest in a contract or
proposed contract with the Authority if the interest
of the Director may properly be regarded as not
being a material interest.
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(3) The person presiding at a meeting at which a
declaration is made under subsection (1) must
cause a record of the declaration to be made in the
minutes of the meeting.
5 (4) After a declaration is made by a Director under
subsection (1)--
(a) the Director must not be present during any
deliberation of the Board with respect to that
matter; and
10 (b) the Director is not entitled to vote on the
matter; and
(c) if the Director does vote on the matter, the
vote must be disallowed.
Division 3--WorkCover Advisory Committee
15 512 WorkCover Advisory Committee
(1) The WorkCover Advisory Committee established
under section 31A of the Accident
Compensation Act 1985 as in force immediately
before 1 July 2014 continues in existence.
20 (2) The WorkCover Advisory Committee is to advise
the Board in relation to its objectives--
(a) to ensure that appropriate compensation is
paid to injured workers in the most socially
and economically appropriate manner and as
25 expeditiously as possible; and
(b) to promote the occupational rehabilitation
and early return to work of injured workers.
(3) The functions of the WorkCover Advisory
Committee are--
30 (a) to examine, review and make
recommendations to the Board in relation
to--
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(i) workers' entitlement to compensation,
the compensation payable to injured
workers, the making of claims for
compensation by injured workers and
5 the conciliation of any disputes arising
from such claims; and
(ii) the establishment, administration and
operation of occupational rehabilitation,
vocational re-education facilities and
10 programs available to injured workers;
and
(b) to make recommendations to the Board with
respect to--
(i) the operation and administration of this
15 Act, the Accident Compensation Act
1985 and the Workers Compensation
Act 1958 and regulations under those
Acts; and
(ii) regulations which the Board or the
20 Minister proposes should be made or
approved; and
(c) any other matters referred to it by the Board.
(4) The WorkCover Advisory Committee is to consist
of members appointed by the Minister,
25 including--
(a) persons with a sound knowledge of the law
relating to accident compensation; and
(b) persons with experience in the provision of
hospital services or medical services; and
30 (c) persons with experience in accident
compensation who are nominated by
Victorian employer and employee groups;
and
(d) persons with knowledge and experience in
35 occupational rehabilitation.
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(5) Subject to this Act, the Board may regulate the
procedures of the WorkCover Advisory
Committee.
Division 4--Financial matters
5 513 WorkCover Authority Fund
(1) The WorkCover Authority Fund established under
section 32 of the Accident Compensation Act
1985 as in force immediately 1 July 2014
continues in existence.
10 (2) The Authority must maintain the WorkCover
Authority Fund.
(3) There must be paid into the Fund--
(a) any amount received or recovered by or on
behalf of the Authority as a fee or as a
15 penalty for an offence under this Act, the
Accident Compensation Act 1985, the
Workers Compensation Act 1958, the
Occupational Health and Safety Act 2004,
the Equipment (Public Safety) Act 1994 or
20 the Dangerous Goods Act 1985 or any
regulations under any of those Acts, unless
the regulations expressly provide otherwise;
and
(b) any amount certified by the Treasurer, after
25 consultation with the Minister, as a
contribution to the costs and expenses of or
incidental to the administration by the
Authority of the Occupational Health and
Safety Act 2004, the Equipment (Public
30 Safety) Act 1994 and the Dangerous Goods
Act 1985; and
(c) any income from the investment of any
money credited to the Fund and the proceeds
of the sale of any investment; and
35 (d) any money that the Authority borrows; and
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(e) any money required or permitted to be paid
into the Fund under this Act or any other
Act; and
(f) all other money that the Authority receives
5 under or for the purposes of occupational
health and safety, accident compensation or
occupational rehabilitation; and
(g) premiums and any other amount or penalty
paid in accordance with Part 10; and
10 (h) all other money that the Authority receives
under or for the purposes of this Act or any
other Act.
(4) The Consolidated Fund is appropriated to the
necessary extent for the purposes of subsection
15 (3)(b).
(5) There may be paid out of the Fund--
(a) payments of compensation or any other
payments required under this Act or any
other Act or under any regulation made
20 under this or any other Act to be paid out of
the Fund; and
(b) payments to the Consolidated Fund of
amounts certified by the Treasurer, after
consultation with the Minister, representing
25 the costs incurred, or to be incurred, annually
by the Ombudsman in enquiring into or
investigating administrative actions in
accordance with the Ombudsman Act 1973
of the Authority, authorised agents and self-
30 insurers under this Act and the Accident
Compensation Act 1985 and of delegates in
administering claims under the Workers
Compensation Act 1958; and
(c) payments to the Consolidated Fund of
35 amounts certified by the Treasurer, after
consultation with the Minister, representing
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the costs incurred, or to be incurred, annually
by the County Court, the Magistrates' Court
or VCAT arising out of the operation of this
Act, the Accident Compensation Act 1985
5 or the Workers Compensation Act 1958;
and
(d) any payment required or authorised to be
made or which is for or towards the costs and
expenses of or incidental to the performance
10 of the functions or the exercise of the powers
of the Authority; and
(e) any payment of an amount under section 515
or 516; and
(f) the remuneration (including allowances) of
15 members of the Board and staff of the
Authority and, where appropriate, any
member of the WorkCover Advisory
Committee under Division 3 or the
Occupational Health and Safety Advisory
20 Committee (within the meaning of the
Occupational Health and Safety Act
2004); and
(g) any remuneration (including allowances) of
members of Medical Panels and such costs
25 and expenses incurred in connection with the
operation of Division 3 of Part 6 and
Division 2 of Part 12 as are approved by the
Authority; and
(h) any remuneration payable to authorised
30 agents and any payment whether for the
whole or part of the cost of studies or
programs approved by the Authority carried
out or developed for or in respect of
employers or industries by authorised agents
35 appointed under section 501; and
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(i) any payment required to meet the obligation
imposed on the Authority by section 535 to
fund the Conciliation Service; and
(j) amounts required for the repayment of
5 borrowings by the Authority and for the
payment of interest payable in respect of
such borrowings; and
(k) any payment arising under or in connection
with a premiums order; and
10 (l) any other costs and expenses incurred by the
Authority under this Act or any other Act.
(6) For the purposes of this section, the Authority
may open and maintain one or more accounts in
the name of the Authority with any ADI.
15 (7) The Authority may invest any money standing to
the credit of the WorkCover Authority Fund in
accordance with the powers conferred on it under
the Borrowing and Investment Powers Act
1987.
20 (8) If money is invested in accordance with
subsection (7) in the purchase of land or the
construction or alteration of buildings, the whole
or part of the land or buildings may be used by the
Authority in connection with its powers, duties or
25 functions under this Act or any other Act.
514 Borrowing powers
The Authority may obtain financial
accommodation subject to and in accordance with
the powers conferred on it under the Borrowing
30 and Investment Powers Act 1987.
515 Repayment of capital
(1) The capital of the Authority is repayable to the
State at the times and in the amounts determined
by the Treasurer after consultation with the
35 Authority and the Minister.
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(2) In making a determination under this section, the
Treasurer must have regard to any advice that the
Authority has given to the Treasurer in relation to
the Authority's affairs.
5 516 Dividends
(1) The Authority must pay to the State a dividend at
the time and in the manner determined by the
Treasurer after consultation with the Authority
and the Minister.
10 (2) In determining the dividend policy that applies to
the Authority, the Treasurer must have regard to
the solvency margin determined to maintain the
long term financial viability of the accident
compensation scheme.
15 517 Budget
The Authority must, before a date to be fixed by
the Minister each year, submit to the Minister an
operating budget for the next financial year in a
form, and containing such matters, as may be
20 required by the Minister.
518 Operating and financial report
(1) The Authority must as soon as possible after
31 December in each year but not later than
28 February next following submit to the Minister
25 an operating and financial report.
(2) The operating and financial report must be in a
form and contain such matters as may be required
by the Minister.
(3) The Authority must ensure that the operating and
30 financial report is publicly available within
14 days after it is submitted to the Minister.
__________________
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Part 12--Other Bodies
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PART 12--OTHER BODIES
Division 1--Accident Compensation Conciliation Service
519 Conciliation Service
(1) The Accident Compensation Conciliation Service
5 established under section 52A of the Accident
Compensation Act 1985 as in force immediately
before 1 July 2014 continues in existence.
(2) The Conciliation Service--
(a) is a body corporate with perpetual
10 succession; and
(b) may sue and be sued; and
(c) may acquire, hold and dispose of real and
personal property; and
(d) may do and suffer all acts and things that a
15 body corporate may by law do and suffer.
520 Constitution of the Conciliation Service
The Conciliation Service consists of one member,
being the person who is, or who is acting as, the
Senior Conciliation Officer.
20 521 Function
The function of the Conciliation Service is to
provide conciliation services for the purposes of
this Act and the Accident Compensation Act
1985.
25 522 Powers
The Conciliation Service may do all things that
are necessary or convenient to enable it to carry
out its function.
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523 Appointment of Senior Conciliation Officer and
Conciliation Officers
(1) The Governor in Council may, by instrument, on
the advice of the Minister, appoint a person to be
5 the Senior Conciliation Officer for such period,
and on such terms and conditions, as are specified
in the instrument.
(2) The Governor in Council may, by instrument, on
the advice of the Senior Conciliation Officer,
10 appoint one or more persons to be Conciliation
Officers for such period, and on such terms and
conditions, as are specified in the instrument.
524 Acting Senior Conciliation Officer
(1) If--
15 (a) the Senior Conciliation Officer or acting
Senior Conciliation Officer--
(i) is absent from duty; or
(ii) for any reason is unable to perform the
duties of the office of Senior
20 Conciliation Officer; or
(b) the Senior Conciliation Officer or acting
Senior Conciliation Officer is given notice of
an investigation under section 533(2); or
(c) the office of Senior Conciliation Officer is
25 vacant--
the Minister must appoint a Conciliation Officer
to act as the Senior Conciliation Officer during
that period and, until such an appointment is
made, a Conciliation Officer designated by the
30 Senior Conciliation Officer under section 527(2)
is to act as the Senior Conciliation Officer.
(2) The Minister may at any time terminate an
appointment under subsection (1).
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(3) If a person has been appointed to act in the office
of Senior Conciliation Officer because of a notice
referred to in subsection (1)(b), the period of
appointment continues until--
5 (a) the Senior Conciliation Officer is given
written notice under section 533(3)(a) that
the Minister does not intend to make a
recommendation; or
(b) the appointment is terminated by the
10 Minister--
whichever first occurs.
(4) If a person has been appointed to act in the office
of Senior Conciliation Officer during a period
referred to in subsection (1)(c) and the Senior
15 Conciliation Officer ceases to hold office without
having resumed the performance of the duties of
the office, the period of appointment continues
until--
(a) the appointment is terminated by the
20 Minister; or
(b) the expiration of the period of 12 months
after the date on which the Senior
Conciliation Officer ceased to hold office--
whichever first occurs.
25 525 Engagement of Conciliation Officers and staff
(1) The Conciliation Service must engage--
(a) such number of persons as Conciliation
Officers; and
(b) such other officers--
30 as are necessary to enable it to carry out its
functions.
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(2) In engaging a Conciliation Officer, the
Conciliation Service is not to be taken as
employing the Conciliation Officer.
(3) Despite subsection (2), for the purposes of this
5 Act (other than this Division), a Conciliation
Officer is deemed to be a worker employed by the
Conciliation Service.
526 Protection against liability for Conciliation Officers
(1) A Conciliation Officer is not personally liable for
10 anything done or omitted to be done in good
faith--
(a) in the exercise of a power or the discharge of
a duty under this Act; or
(b) in the reasonable belief that the act or
15 omission was in the exercise of a power or
the discharge of a duty under this Act.
(2) Any liability resulting from an act or omission
that, but for subsection (1) would attach to a
Conciliation Officer attaches instead to the
20 Conciliation Service.
527 Functions of the Senior Conciliation Officer
(1) The functions of the Senior Conciliation Officer
are--
(a) to ensure conciliations are conducted by the
25 Conciliation Service in an expeditious and
consistent manner; and
(b) to ensure Conciliation Officers comply with
guidelines made by the Minister; and
(c) to ensure the Conciliation Service operates in
30 a transparent and accountable manner; and
(d) to monitor the performance of the
Conciliation Service; and
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(e) to carry out any other functions conferred on
the Senior Conciliation Officer by or under
this Act.
(2) The Senior Conciliation Officer must designate,
5 with the approval of the Minister, one or more
Conciliation Officers to act during a period
referred to in section 524 as Senior Conciliation
Officers until the Minister makes an appointment
under that section.
10 528 Minister may make guidelines
(1) The Minister may, from time to time, make
guidelines in accordance with section 611 in
respect of the carrying out of functions of, and the
exercise of powers by, the Senior Conciliation
15 Officer.
(2) In exercising powers and carrying out functions
under this Act, a Conciliation Officer must
observe any guidelines made by the Minister
under subsection (1).
20 529 Senior Conciliation Officer may give directions
The Senior Conciliation Officer may give
directions as to the arrangement of business of the
Conciliation Officers.
530 Data to be collected by the Senior Conciliation
25 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 on the preceding 30 June--
30 (a) the number of disputes referred for
conciliation;
(b) the number of matters referred to a medical
panel;
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(c) the nature and number of complaints referred
to the Conciliation Service about the conduct
of the Conciliation Service;
(d) the number and nature of the outcomes of the
5 disputes referred for conciliation;
(e) the number of medical reports received or
requested by the Conciliation Service under
section 289;
(f) the number of instances the Senior
10 Conciliation Officer allowed an extension of
time for lodging an application or allowed an
application to be lodged out of time under
section 283;
(g) any other information that the Minister
15 requests be provided.
(2) A person may, in writing, request the Senior
Conciliation Officer to make the data collected
under subsection (1) publicly available.
(3) If the Senior Conciliation Officer receives a
20 request under subsection (2), the Senior
Conciliation Officer must publish the data as
soon as reasonably possible on an internet site
maintained by the Conciliation service.
531 Vacancy and resignation
25 (1) A person ceases to be a Conciliation Officer if he
or she--
(a) is convicted, or found guilty, of an indictable
offence or of an offence which, if committed
in Victoria, would be an indictable offence;
30 or
(b) is an insolvent under administration.
(2) A Conciliation Officer may resign his or her
office by writing signed by him or her and
delivered to the Governor in Council.
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532 Senior Conciliation Officer may advise removal or
suspension from office
The Senior Conciliation Officer may advise the
Minister on the removal or suspension of a
5 Conciliation Officer having regard to--
(a) the capability of the Conciliation Officer in
the performance of official duties; or
(b) any refusal or neglect by the Conciliation
Officer in performance of those duties; or
10 (c) any serious breaches of confidentiality by the
Conciliation Officer; or
(d) any serious breach of one or more of the
Conciliation Officer's terms or conditions of
engagement; or
15 (e) any other matter the Senior Conciliation
Officer considers relevant to the removal or
suspension of a Conciliation Officer.
533 Removal from office by Governor in Council
(1) The Minister may recommend to the Governor in
20 Council that a Conciliation Officer be removed or
suspended from office if the Minister is of the
opinion, after having given the Conciliation
Officer an opportunity to be heard, that the
Conciliation Officer--
25 (a) is incapable of performing official duties; or
(b) has refused or neglected to perform those
duties; or
(c) has committed a serious breach of
confidentiality; or
30 (d) has committed a serious breach of one or
more of the terms or conditions of his or her
engagement.
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(2) To begin an investigation into whether or not to
make a recommendation under subsection (1), the
Minister must give the Conciliation Officer
written notice of the investigation, together with
5 an outline of the reasons why the investigation is
to be conducted.
(3) On receiving a notice under subsection (2), the
Conciliation Officer is, by virtue of this section,
suspended from office until he or she--
10 (a) is given written notice that the Minister does
not intend to make a recommendation under
this section in relation to the matters
investigated; or
(b) is removed from office under subsection (5);
15 or
(c) completes any term of suspension imposed
under subsection (5).
(4) A Conciliation Officer who is suspended under
subsection (3) remains entitled to his or her
20 remuneration and allowances as a Conciliation
Officer during the period of suspension.
(5) On receiving a recommendation from the Minister
under this section that a Conciliation Officer be
removed or suspended from office, the Governor
25 in Council may remove or suspend the
Conciliation Officer from office.
(6) Subsection (4) ceases to apply if a suspension is
imposed on a Conciliation Officer under
subsection (5).
30 534 Conciliation Service budget
(1) Each year, on or before the date specified by the
Minister, the Conciliation Service must submit to
the Minister a proposed annual budget for its
operations for the coming financial year.
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(2) The Minister must either approve the proposed
budget or request that the proposed budget be
amended.
535 Authority to fund the Service
5 In each financial year, the Authority must make
payments from the WorkCover Authority Fund to
the Conciliation Service, subject to and in
accordance with the budget approved by the
Minister under section 534 for that financial year
10 or, if the Minister approves an increase in that
budget, that budget as so varied, to enable the
Conciliation Service to meet expenses incurred by
it in respect of that financial year.
536 Signature
15 (1) Any document or copy of a document issuing out
of the office of the Conciliation Service and
bearing the written, stamped or printed signature
of a Conciliation Officer or a person authorised by
the Senior Conciliation Officer is, until the
20 contrary is proved, deemed to have been duly
signed by the person by whom it purports to have
been signed.
(2) Judicial notice is to be taken of every such
signature and of the fact that the person whose
25 signature it purports to be holds or has held the
office of Conciliation Officer or is or has been a
person authorised by the Senior Conciliation
Officer.
Division 2--Medical Panels
30 537 Establishment and constitution
(1) Medical Panels must be constituted as necessary
for the purposes of this Act, the Accident
Compensation Act 1985 and Part VBA of the
Wrongs Act 1958 to carry out such functions as
35 may be conferred on a Medical Panel.
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(2) For the purpose of constituting Medical Panels,
there is to be a list of members consisting of
medical practitioners nominated by the Minister
on the recommendation of the Convenor and
5 appointed by the Governor in Council.
(3) From the list of members under subsection (2), the
Minister--
(a) must appoint a Convenor; and
(b) may appoint one or more Deputy Convenors.
10 (4) The Convenor must designate a Deputy Convenor
to act as Convenor in the temporary absence of the
Convenor.
(5) In the temporary absence of the Convenor--
(a) a Deputy Convenor designated under
15 subsection (4); or
(b) if there is no such designated Deputy
Convenor, a Deputy Convenor designated by
the Minister--
has, and may exercise, the functions and powers
20 conferred on the Convenor.
(6) The Convenor may delegate to a Deputy
Convenor the exercise of any function or power
conferred on the Convenor by or under this Act.
(7) 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.
30 (8) If a medical practitioner on the list of members
has treated or examined or been engaged to treat
or examine a worker (otherwise than in his or her
role as a member of a Medical Panel) he or she
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Part 12--Other Bodies
s. 538
must not be a member of a Medical Panel
examining the worker.
(9) A matter or thing done or omitted to be done in
the provision of expert advice to a Medical Panel
5 by a consultant engaged for that purpose does not,
if the matter or thing was done or omitted in good
faith, subject the consultant personally to any
action, liability, claim or demand.
(10) A member of a Medical Panel is entitled to be
10 paid remuneration (if any) and the travelling and
other allowances specified in the instrument of
appointment.
(11) The Public Administration Act 2004 (other than
Part 3 of that Act) applies to a member in respect
15 of the office of member.
(12) An instrument of appointment of a member may
specify other terms and conditions not
inconsistent with this Act.
(13) The Authority must appoint such officers and
20 employees as are necessary for the proper
functioning of medical panels.
538 Term, resignation and termination
(1) Subject to this Division, a person is on the list of
members for the term not exceeding 3 years
25 specified in the instrument of appointment.
(2) A member may resign from the list of members by
writing signed by the member and delivered to the
Minister.
(3) The Governor in Council may remove or suspend
30 a member from the list of members if, in the
opinion of the Governor in Council, the
member--
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(a) becomes incapable of performing official
duties; or
(b) neglects to perform those duties.
(4) A person ceases to be a member of a Medical
5 Panel if he or she--
(a) ceases to be a medical practitioner; or
(b) becomes an insolvent under administration;
or
(c) is convicted of an indictable offence or of an
10 offence which, if committed in Victoria,
would be an indictable offence.
539 Advisory functions
(1) The Convenor--
(a) must advise the Minister in relation to any
15 matter referred to the Convenor by the
Minister; and
(b) may advise the Minister in relation to the
operation and procedures of Medical Panels.
(2) The Convenor may constitute a Medical Panel
20 consisting of such number of members as the
Convenor considers appropriate, for the purpose
of providing a report to the Convenor in respect of
any matter referred to the Convenor of the
Medical Panels under subsection (1)(a).
25 540 Validity of acts or decisions
An act or decision of a Medical Panel is not
invalid by reason only of any defect or irregularity
in or in connection with the appointment of a
member.
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541 Protection for Convenor and members of a Medical
Panel
The Convenor and a member of a Medical Panel
has, in the performance of his or her duties as the
5 Convenor or as a member of a Medical Panel, the
same protection and immunity as a Judge of the
Supreme Court has in the performance of his or
her duties as a Judge.
__________________
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s. 542
PART 13--GENERAL
Division 1--Indexation
542 Indexation--weekly payments
(1) Subject to this section, the amount of a weekly
5 payment to a worker in respect of an injury under
Part 5 must be varied, in respect of each year
beginning on the anniversary of the day on which
the worker became entitled to weekly payments in
respect of that injury, by varying the amount of
10 the worker's pre-injury average weekly earnings
for the purposes of the calculation of the amount
of the weekly payment in accordance with the
formula--
B
A×
C
15 where--
A is the amount of the worker's pre-injury
average weekly earnings within the meaning
of section 153 or, if that amount has been
varied in accordance with this section, that
20 amount as last so varied;
B is the average weekly total earnings of all
employees in Victoria in original terms for
the most recent reference period published
by the Australian Bureau of Statistics as at
25 the 15th day of the month preceding the
month in which the date on which the
variation is made falls;
C is the average weekly total earnings of all
employees in Victoria in original terms for
30 the corresponding reference period one year
earlier than the reference period referred to
in B published by the Australian Bureau of
Statistics as at the 15th day of the same
month referred to in B.
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(2) A variation of an amount of a worker's pre-injury
average weekly earnings under this section does
not take effect to the extent (if any) to which it
increases that amount to more than 100 per cent of
5 the worker's ordinary earnings (calculated in
accordance with Division 1 of Part 5) expressed as
a weekly sum to which the worker would be
entitled if he or she were employed in the same
position or positions (if it or they can be
10 identified) as he or she was employed in
immediately before the injury, being the position
or positions on the basis of which the calculation
of the worker's pre-injury average weekly
earnings was made.
15 543 Indexation of weekly pensions for dependants of a
worker who dies
(1) Subject to subsection (2), the amount of any
compensation in the form of weekly payments of
pension payable under section 241 to a deceased
20 worker's dependants must be varied--
(a) on 1 July 2014 in respect of the financial
year commencing on that date; and
(b) on 1 July in each subsequent year in respect
of the financial year commencing on that
25 date--
by varying the amount of the worker's pre-injury
average weekly earnings for the purposes of the
calculation of the amount of the weekly pension in
accordance with the formula--
B
A×
30 C
where--
A is the amount of the worker's pre-injury
average weekly earnings within the meaning
of section 153 or, if that amount has been
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varied in accordance with this section, that
amount as last so varied;
B is the average weekly total earnings of all
employees in Victoria in original terms for
5 the most recent reference period in the
preceding calendar year published by the
Australian Bureau of Statistics as at 15 June
immediately preceding the date on which the
variation is made;
10 C is the average weekly total earnings of all
employees in Victoria in original terms for
the corresponding reference period in the
calendar year preceding the calendar year
referred to in B published by the Australian
15 Bureau of Statistics as at 15 June
immediately preceding the date on which the
variation is made.
(2) If a worker's death resulted from or was materially
contributed to by an injury arising out of or in the
20 course of employment 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
25 section 241 must 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 purposes of the calculation of the amount of
30 the weekly pension in accordance with the
formula--
E
D×
F
where--
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D is the amount of the worker's pre-injury
average weekly earnings within the meaning
of section 153 or, if that amount has been
varied in accordance with this section, that
5 amount as last so varied;
E is the average weekly total earnings of all
employees in Victoria in original terms for
the most recent reference period published
by the Australian Bureau of Statistics as at
10 the 15th day of the month preceding the
month in which the date on which the
variation is made falls;
F is the average weekly total earnings of all
employees for Victoria in original terms for
15 the corresponding reference period one year
earlier than the reference period referred to
in E published by the Australian Bureau of
Statistics as at the 15th day of the same
month referred to in E.
20 544 Indexation of certain amounts--according to
average weekly earnings
An amount specified in column 2 of the Table to
this section must be varied, in respect of the
financial year beginning on 1 July 2014 and each
25 subsequent financial year, in accordance with the
formula--
B
A×
C
where--
A is the amount specified in column 2 of that
30 item or, if that amount has been varied in
accordance with this section, that amount as
last so varied;
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B is the average weekly total earnings of all
employees in Victoria in original terms for
the most recent reference period in the
preceding calendar year published by the
5 Australian Bureau of Statistics as at 15 June
immediately preceding the date on which the
variation is made;
C is the average weekly total earnings of all
employees in Victoria in original terms for
10 the corresponding reference period in the
calendar year preceding the calendar year
referred to in B published by the Australian
Bureau of Statistics as at 15 June
immediately preceding the date on which the
15 variation is made.
TABLE
Column 1 Column 2
Item Amount
1 Section 164(1)(c)--$177
2 Section 165(4)(a)--$177
3 Section 166(1)(d)--$177
4 Section 366(2)--$886 330
5 Schedule 2, item 11(b)--$1210
6 Schedule 7, clause 3(1)--$55 330
7 Schedule 7, clause 3(2)--$55 330
545 Indexation of certain amounts--consumer price
index
Subject to section 229(5), an amount in dollars
20 specified in column 2 of an item in the Table to
this section must be varied, in respect of the
financial year beginning on 1 July 2014 and each
subsequent financial year, in accordance with the
formula--
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B
A×
C
where--
A is the amount specified in column 2 of that
item or, if that amount has been varied in
5 accordance with this section, that amount as
last so varied;
B is the all groups consumer price index for
Melbourne in original terms for the most
recent reference period in the preceding
10 calendar year most recently published by the
Australian Bureau of Statistics as at 15 June
immediately preceding the date on which the
variation is made;
C is the all groups consumer price index for
15 Melbourne in original terms for the
corresponding reference period one year
earlier than the reference period referred to
in B published by the Australian Bureau of
Statistics as at 15 June immediately
20 preceding the date on which the variation is
made.
TABLE
Column 1 Column 2
Item Amount
1 Section 72(1)(c)--$642
2 Section 211(2)(b)(i)--$11 670 and
$9940
3 Section 211(2)(b)(ii)--$11 670 and
$9940
4 Section 211(2)(c)(i)--$18 810 and
$2830
5 Section 211(2)(c)(ii)(A)--$18 810
and $2830
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Column 1 Column 2
Item Amount
6 Section 211(2)(c)(ii)(B)--$18 810
and $2830
7 Section 211(2)(d)--$75 260 and
$4700
8 Section 211(2)(e)(i)--$262 070 and
$29 330
9 Section 211(2)(e)(ii)--$555 350
10 Section 211(2)(f)--$555 350
11 Section 212(b)--$18 810 and $2830
12 Section 212(c)--$75 260 and $4700
13 Section 212(d)(i)--$262 070 and
$29 330
14 Section 212(d)(ii)--$555 530
15 Section 212(e)--$555 530
16 Section 213(1)(a)--$2830 and $1860
17 Section 213(1)(b)--$2830
18 Section 213(1)(c)--$4700, $2830 and
$1860
19 Section 213(1)(d)--$4700 and $2830
20 Section 213(1)(e)--$4700
21 Section 214(1)--$67 660
22 Section 217(1)--$555 350
23 Section 217(2)--$555 350
24 Section 221(4)--$273 640
25 Section 224(1)(b)--$5870
26 Section 225(2)--$642
27 Section 229(4)--$32.50
28 Section 236(1)--$555 350
29 Section 236(2)--$555 350
30 Section 236(3)--$555 350
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Column 1 Column 2
Item Amount
31 Section 236(3)(a)--$55 530
32 Section 236(4)--$555 350
33 Section 236(4)(a)--$27 770
34 Section 236(5)--$555 350
35 Section 236(5)(a)--$416 520
36 Section 236(6)--$555 350
37 Section 237(1)--$555 350
38 Section 237(2)--$555 350
39 Section 240(9)--$33 120
40 Section 243(1)(b)--$8270
41 Section 301(3)--$56
42 Section 301(4)--$386
43 Section 340(a)(i)--$56 650
44 Section 340(a)(ii)--$1 275 570
45 Section 340(b)(i)--$54 730
46 Section 340(b)(ii)--$555 350
47 Schedule 4--No disadvantage--
Compensation Table: each amount
specified in the Table
546 Indexation--no reduction
If the variation of an amount specified in
section 542, 543, 544 or 545 or in a Table to
section 544 or 545 by operation of that section has
5 the effect of reducing the amount--
(a) the variation is deemed not to have taken
effect, except for the purposes of the
application of this section; and
(b) when the amount is varied and increased by
10 operation of this section in respect of the
next or a subsequent financial year, that
variation has effect as an increase only to the
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extent (if any) to which the amount of the
increase exceeds the amount of the reduction
in respect of a preceding financial year, or
that part of such a reduction that has not been
5 set off against a previous increase.
547 Indexation--rounding
Where it is necessary for the purposes of this
Division to calculate an amount, the amount is
deemed to have been calculated in accordance
10 with this section if the calculation is made--
(a) if the amount is less than $1000, to the
nearest whole $1; or
(b) if the amount is $1000 or more, to the
nearest whole $10.
15 Division 2--Agreements
548 Reciprocal agreements--compensation
(1) The Authority may enter into an agreement with a
person or body constituted by or under the law of
a corresponding State relating to the payment of
20 compensation to a worker or dependants of a
worker in respect of an injury arising out of or in
the course of, or due to the nature of, the worker's
employment in Victoria or in the corresponding
State.
25 (2) An agreement under subsection (1) may
provide--
(a) that the provisions of this Act or the
Accident Compensation Act 1985 apply
and the provisions of the law of the
30 corresponding State do not apply in respect
of compensation if the injury occurred in
Victoria and the person who was injured or
died was resident in the corresponding State;
and
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(b) that the provisions of the law of the
corresponding State apply and the provisions
of this Act or the Accident Compensation
Act 1985 do not apply in respect of
5 compensation if the injury occurred in the
corresponding State and the person who was
injured or died was resident in Victoria.
(3) In this section, corresponding State means
another State or a Territory in which there is in
10 force a law the provisions of which generally
correspond to the provisions of this Act, being a
State or Territory declared by Order of the
Governor in Council published in the Government
Gazette to be a corresponding State for the
15 purposes of this section.
549 Reciprocal agreements--premiums or other
amounts
(1) The Authority may enter into an agreement with a
person or body constituted by or under the law of
20 another State or Territory or of the
Commonwealth relating to the payment of
premium or other amounts in respect of
remuneration paid or payable in respect of
services performed or rendered partly in Victoria
25 and partly in the corresponding State.
(2) An agreement under subsection (1) may
provide--
(a) that the provisions of this Act or the
Accident Compensation (WorkCover
30 Insurance) Act 1993 apply and the
provisions of the law of the corresponding
State do not apply in respect of remuneration
paid or payable in respect of services
performed or rendered partly in Victoria and
35 partly in the corresponding State; or
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(b) that the provisions of the law of the
corresponding State apply and the provisions
of this Act or the Accident Compensation
(WorkCover Insurance) Act 1993 do not
5 apply in respect of such remuneration.
550 Reciprocal agreements--relevant services
(1) The Authority may enter into an agreement with a
person or body that provides a relevant service
under which provision is made by the Authority to
10 meet its obligations under Division 7 of Part 5 of
this Act or Division 2B of Part IV of the Accident
Compensation Act 1985 for the provision of a
relevant service in Australia because of an injury
caused to a worker arising out of or in the course
15 of employment by making payments in respect of
classes or groups of cases or claims rather than on
an individual basis.
(2) An agreement under subsection (1) made by the
Authority with a person or body--
20 (a) must include an agreement by the Authority
to make to that person or body payments in
respect of the reasonable costs of that person
or body for providing the service in
accordance with a scale of payments
25 specified in the agreement; and
(b) must include an agreement by that person or
body that the person or body will not make a
demand to a person other than the Authority
for payment of the whole or any part of costs
30 in respect of which the Authority has agreed
to make payments; and
(c) is subject to such other terms and conditions
including terms and conditions relating to
revocation as the Authority determines and
35 specifies in the agreement.
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(3) Where a person with whom an agreement referred
to in subsection (1) is in force provides services in
respect of an injury and the Authority is, under the
agreement, liable to make payments in respect of
5 those services, no person other than the Authority
is liable to make payment to the first-mentioned
person in respect of those services except as
provided in accordance with subsection (4).
(4) An agreement referred to in subsection (1)
10 between the Authority and a hospital may include
an agreement that if, in accordance with a request
made by or on behalf of a person, the hospital
provides in respect of a person hospital services in
respect of which the Authority is not, under the
15 agreement, liable to make payments, the hospital
may make demand to that person for payment of
an amount not exceeding an amount calculated in
accordance with provisions specified in the
agreement and that person is liable to pay the
20 amount demanded by the hospital.
(5) Where an agreement under this section is made or
revoked, notice of the making or revocation of the
agreement must be published on the Authority's
internet site.
25 (6) In this section relevant service means an
ambulance service, hospital service, medical
service, nursing service or personal and household
service.
551 Incentive agreements to improve employer
30 performance
(1) Without limiting the powers conferred on the
Authority, for the purpose of carrying out its
functions under section 493(1)(n), the Authority
may do any of the following--
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(a) enter into agreements with any person or
body and may agree to pay money under the
agreement to any person or body;
(b) require anyone seeking to enter into such an
5 agreement to meet specified criteria or to
successfully complete an approval or
application process;
(c) impose fees in relation to an approval or
application process;
10 (d) in agreeing to the payment of money under
an agreement, base the amount to be paid on
factors relevant to the calculation of
premium.
Example
15 The Authority may agree to pay a representative of a
group of employers an annual amount that represents
the difference between the amount the group paid
collectively in premiums in the previous year and the
amount of premium that it is likely would have been
20 paid in that year had the group of employers been a
single employer. Under this scheme each employer
would still have to pay the premium in respect of the
year that he, she or it would normally have to pay.
(2) Nothing in this section authorises the Authority to
25 agree to waive or reduce the amount of premium
an employer is liable to pay but the Authority may
make payments in the nature of a refund of
premium.
Division 3--Access to information
30 552 Power to obtain information and evidence
(1) For the purposes specified in subsection (2), the
Authority may, by notice in writing, require any
person (including any person that is an employee
appointed or authorised to perform any function or
35 exercise any power of, or on behalf of, the
Authority under any Act)--
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(a) to furnish the Authority with such
information as the Authority requires; or
(b) to attend and give evidence before the
Authority or before any person employed in
5 the administration or execution of this Act
and authorised by the Authority in that
behalf--
and may require the person to produce all books in
the custody or under the control of the person
10 relating thereto.
(2) The purposes are--
(a) in the case of subsection (1)(a), for
determining whether any of the provisions of
this Act, the Accident Compensation Act
15 1985 or the Workers Compensation Act
1958 are being or have been contravened; or
(b) in the case of subsection (1)(a) or (b), for
inquiring into or ascertaining the person's or
any other person's--
20 (i) liability or entitlement under this Act,
the Accident Compensation Act 1985
or the Workers Compensation Act
1958; or
(ii) liability to pay, or entitlement to
25 receive, damages at common law and
under the Wrongs Act 1958, and
contribution or indemnity under that
Act, in respect of an injury to, or death
of, a worker arising out of or in the
30 course of a worker's employment with
the employer; or
(c) in the case of subsection (1)(a) or (b), for
ascertaining for the purposes of this Act, the
Accident Compensation Act 1985 or the
35 Workers Compensation Act 1958 the
identity of any person who--
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(i) may have a liability or entitlement
under this Act, the Accident
Compensation Act 1985 or the
Workers Compensation Act 1958; or
5 (ii) may, by reason of being related to or
associated or connected with another
person, affect the liability or
entitlement of that other person.
(3) The Authority may require the information or
10 evidence to be given on oath, and either orally or
in writing, or to be given by statutory declaration
and for that purpose the Authority or a person so
authorised by the Authority may administer an
oath.
15 (4) The regulations may prescribe scales of expenses
to be allowed to persons required under this
section to attend.
553 Powers of inspection
(1) Subject to subsection (2), a person authorised by
20 the Authority may, with an interpreter or such
other assistance as the person requires--
(a) without force, enter, inspect and examine at
any reasonable time any premises; and
(b) require a person in or on those premises to
25 give information and produce books; and
(c) inspect, examine and make extracts from, or
copies of, any books in or on those premises;
and
(d) exercise such other powers as are
30 necessary--
for the purpose of determining whether the
provisions of this Act, the Accident
Compensation Act 1985 or the Workers
Compensation Act 1958 are being or have been
35 contravened or generally of enforcing the
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provisions of this Act, the Accident
Compensation Act 1985 or the Workers
Compensation Act 1958.
(2) A person must not exercise a power under
5 subsection (1) in any part of premises used only
for residential purposes except with the consent of
the occupier for the time being of that part.
(3) If a person exercising powers under subsection (1)
uses the assistance of an interpreter, a requirement
10 to provide information made on behalf of that
person by the interpreter is to be taken to have
been made by that person and any answer given to
the interpreter is to be taken to have been given to
that person.
15 Note
This section does not affect the operation of section 597
(protection against self-incrimination) or section 598 (legal
professional privilege and client legal privilege).
554 Offences
20 (1) A person must not obstruct or hinder a person
exercising powers under section 552 or 553.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
25 300 penalty units.
(2) A person must not, without reasonable excuse,
refuse or fail to comply with a requirement of a
person exercising powers under section 552
or 553.
30 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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(3) A person must not assault, intimidate or threaten,
or attempt to assault, intimidate or threaten, a
person exercising powers under section 552
or 553.
5 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.
10 555 Access to police records
(1) The Chief Commissioner of Police may give the
Authority any information in the possession or
under the control of the Chief Commissioner that
the Authority requests for the purpose of the
15 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--
(a) under the Road Safety Act 1986 or the
20 Crimes Act 1958 referred to in section 42,
43 or 44 involving conduct to which the
Authority considers the injury may be
attributable; or
(b) that the Authority considers may comprise
25 serious and wilful misconduct as referred to
in section 40(5), being conduct to which the
Authority considers the injury may be
attributable.
(2) The Authority must pay to the Chief
30 Commissioner of Police the reasonable costs of
giving information under subsection (1).
(3) The use of information given to the Authority
under this section is subject to the compliance by
the Authority with any relevant agreement entered
35 into between the Authority and the Chief
Commissioner of Police or, if there is no such
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agreement, any relevant standards established by
the Commissioner for Law Enforcement Data
Security under the Commissioner for Law
Enforcement Data Security Act 2005.
5 556 Court to provide certificate of conviction
(1) If--
(a) a person is convicted or found guilty of an
offence--
(i) that the Authority considers may
10 comprise serious and wilful misconduct
as referred to in section 40(5), being
misconduct to which the injury may be
attributable; or
(ii) under the Road Safety Act 1986 or the
15 Crimes Act 1958 referred to in
section 42, 43 or 44; and
(b) the court by which the person was convicted
or found guilty made a finding as to the
concentration of, or presence of, alcohol in
20 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
time--
the court must, at the written request of the
25 Authority, cause a certificate with particulars of
the conviction or finding of guilt and its finding as
to the concentration of, or presence of, alcohol or
a drug to be given to the Authority.
(2) A certificate of a court given under subsection (1)
30 is conclusive proof of the particulars set out in it.
557 VicRoads may disclose information to Authority
(1) The Roads Corporation may, at the written request
of the Authority, disclose relevant information
gained by the Corporation to the Authority for the
35 purpose of the assessment by the Authority of a
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claim by a person for compensation under this
Act, the Accident Compensation Act 1985 or the
Workers Compensation Act 1958, being
relevant information that the Authority considers
5 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, relevant information means details
of--
10 (a) a conviction or finding of guilt; or
(b) an infringement notice within the meaning of
the Infringements Act 2006; or
(c) the concentration of alcohol in a person's
blood or breath--
15 that relate, or may relate to--
(d) the commission or alleged commission of an
offence under the Road Safety Act 1986 or
the Crimes Act 1958 referred to in
section 42, 43 or 44 of this Act; or
20 (e) conduct comprising serious and wilful
misconduct as referred to in section 40(5).
Division 4--Issue of search warrants
558 Issue of search warrants
(1) If a magistrate is satisfied, by the evidence on oath
25 or by affidavit of the Authority, that there is
reasonable ground for suspecting that there are on
particular premises any books which are
relevant--
(a) in determining whether any of the provisions
30 of this Act, the Accident Compensation Act
1985 or the Workers Compensation Act
1958 are being or have been contravened; or
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(b) to the assessment of a premium--
the magistrate may issue a warrant authorising any
member of the police force together with any
other person named in the warrant to do the things
5 specified in subsection (2).
(2) A member of the police force or a person named
in a warrant issued by a magistrate under
subsection (1) is authorised--
(a) to enter those premises (using such force as
10 is necessary for the purpose); and
(b) to search the premises and to break open and
search any cupboard, drawer, chest, trunk,
box, package or other receptacle, whether a
fixture or not, in the premises; and
15 (c) to take possession of, or secure against
interference, any books that appear to be
relevant to a purpose specified in
subsection (1); and
(d) to deliver any books, possession of which is
20 taken, into the possession of the Authority or
a person authorised by the Authority to
receive them.
(3) A warrant under subsection (1) must be in the
prescribed form and must not be granted except in
25 accordance with subsection (1).
(4) Where, under this section, a person takes
possession of, or secures against interference, any
books, that person or any person to whose
possession they are delivered under
30 subsection (2)(d)--
(a) may make copies of, or take extracts from,
the books; and
(b) may retain possession of the books for such
period as is necessary to enable them to be
35 inspected, and copies of, or extracts from,
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them to be made or taken, by or on behalf of
the Authority; and
(c) during that period must permit a person who
would be entitled to inspect any one or more
5 of those books if they were not in the
possession of the first-mentioned person to
inspect at all reasonable times such of those
books as that person would be so entitled to
inspect.
10 (5) If the Authority considers that it may be necessary
to prove the physical properties of any books or of
the contents of any books of which possession has
been retained under subsection (4)(b) in any
criminal proceedings, the Authority may apply to
15 the magistrate who issued the warrant under
subsection (1) for an order authorising the
Authority to retain possession of the books
specified in the order until the criminal
proceedings are concluded.
20 (6) If the magistrate is satisfied that there is
reasonable ground to believe that the physical
properties of the books or of the contents of the
books are material evidence in the proposed
criminal proceedings, the magistrate may make
25 the order specified in subsection (5).
(7) For the purposes of subsections (5) and (6),
physical properties includes, but is not limited
to--
(a) whether or not any of the books or contents
30 of the books have been forged or tampered
with; and
(b) whether or not there are finger prints on the
books which establish who had physical
possession of the books before the books
35 were seized under this section; and
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(c) whether or not handwriting in any of the
books belongs to a particular person.
(8) A person must not obstruct or hinder a person
employed or acting in the execution or under the
5 authority of a warrant issued 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,
10 300 penalty units.
(9) 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,
15 60 penalty units or 6 months
imprisonment or both;
In the case of a body corporate,
300 penalty units.
(10) A person must not assault, or attempt to assault, a
20 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,
25 240 penalty units or 2 years
imprisonment or both;
In the case of a body corporate,
1200 penalty units.
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Division 5--Prohibited conduct relating to touting for claims
559 Definitions
(1) In this Division--
agent means a person who acts, or holds himself
5 or herself out as willing to act, as agent for a
person for fee or reward in connection with a
claim, but does not (unless the regulations
otherwise provide) include a legal
practitioner;
10 claim means a claim for compensation under this
Act, the Accident Compensation Act 1985
or the Workers Compensation Act 1958;
prohibited conduct has the same meaning as in
section 560;
15 protected claim means--
(a) a claim under Division 5 of Part 5 of
this Act or Division 2A of Part IV of
the Accident Compensation Act 1985
for a diminution of hearing; and
20 (b) a claim under Division 7 of Part 5 of
this Act or Division 2B of Part IV of
the Accident Compensation Act 1985
for the cost of provision of a hearing
aid; and
25 (c) any other claim under this Act or the
Accident Compensation Act 1985 that
is declared by the regulations to be a
protected claim for the purposes of this
section.
30 (2) A reference in this Division to a claim includes a
reference to a prospective claim irrespective of
whether a claim is subsequently made.
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(3) Each of the following activities is considered to
constitute acting as agent for a person in
connection with a claim--
(a) advising the person with respect to the
5 making of a claim;
(b) assisting the person to complete or prepare,
or completing or preparing on behalf of the
person, any form, correspondence or other
document concerning a claim;
10 (c) making arrangements for any test or medical
examination or medical certificate to
determine the person's entitlement to
compensation;
(d) arranging referral of the person to a legal
15 practitioner for the performance of legal
work in connection with a claim;
(e) any prescribed activity.
(4) The regulations may provide that persons who
engage in specified activities are not to be
20 regarded as agents for the purposes of this
Division.
560 Prohibited conduct by agents
(1) The following conduct by an agent is prohibited
conduct for the purposes of this Division--
25 (a) making a statement to a person, knowing that
the statement is false or misleading in a
material particular, for the purpose of
encouraging the person or any other person
to make a protected claim and to use
30 (in connection with the protected claim) the
services of the agent or of some other person
from whom the agent receives any payment
in connection with the protected claim;
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(b) using information obtained by the agent in
connection with a claim to contact any other
person for the purpose of encouraging that
other person to make a protected claim and
5 to use (in connection with the protected
claim) the services of the agent or of some
other person from whom the agent receives
any payment in connection with the
protected claim;
10 (c) seeking to obtain information from a client
of the agent for the purpose of using that
information as described in paragraph (b);
(d) inducing or attempting to induce a client of
the agent to encourage any other person to
15 make a claim (whether or not it is a protected
claim) and to use (in connection with the
claim) the services of the agent or of some
other person from whom the agent receives
any payment in connection with the claim;
20 (e) making any unsolicited contact by telephone,
personal approach or other prescribed means
with a person who is not a client of the agent,
for the purpose of encouraging the person to
make a protected claim and to use
25 (in connection with the protected claim) the
services of the agent or of some other person
from whom the agent receives any payment
in connection with the protected claim;
(f) such other conduct as is prescribed by the
30 regulations as prohibited conduct for the
purposes of this section.
(2) For the purposes of this Division any conduct
engaged in by a person on behalf of an agent, or
that an agent has caused or procured the person to
35 engage in, is taken to have been engaged in by the
agent.
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561 Offence of engaging in prohibited conduct
An agent must not engage in prohibited conduct.
Penalty: In the case of a natural person,
60 penalty units;
5 In the case of a body corporate,
300 penalty units.
562 Consequences of prohibited conduct for recovery of
fees by agents
(1) An agent is not entitled to recover from a person
10 any fees, costs or other charges that would
otherwise be payable by the person in connection
with services made use of by the person if the
services were made use of as a result of prohibited
conduct engaged in by the agent, regardless of
15 whether the agent has been proceeded against or
convicted for an offence in respect of that
prohibited conduct.
(2) If prohibited conduct engaged in by an agent
involved encouraging a person to make use of
20 services and the person makes use of those
services after the conduct is engaged in, it is to be
presumed for the purposes of this section that the
services were made use of as a result of that
prohibited conduct, unless the agent concerned
25 establishes otherwise.
(3) If the services of an agent were made use of as a
result of prohibited conduct engaged in by the
agent in connection with a claim under Division 5
of Part 5 of this Act or Division 2A of Part IV of
30 the Accident Compensation Act 1985 for a
diminution of hearing, it is to be presumed for the
purposes of this section that any services of the
agent made use of in connection with a
subsequent claim for a further diminution of
35 hearing made by the same worker (whether or not
made against the same employer) were made use
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of as a result of prohibited conduct engaged in by
the agent, unless the agent concerned establishes
otherwise.
(4) A person who has paid any amount in respect of
5 fees, costs or other charges to an agent that the
agent would not have been entitled to recover
because of this section is entitled to recover the
amount from the agent as a debt in a court of
competent jurisdiction.
10 563 Consequences of prohibited conduct for legal
practitioners
(1) A legal practitioner who acts for a person on a
claim must not include in any bill given to the
person, and must not otherwise seek to recover
15 from the person, any amount by way of
disbursements for fees paid to an agent in
connection with referral of the person to the legal
practitioner by the agent if the legal practitioner
knows or has reasonable cause to suspect that the
20 agent engaged in prohibited conduct that involved
encouraging the person to make the claim,
regardless of whether the agent has been
proceeded against or convicted for an offence in
respect of that prohibited conduct.
25 Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
(2) A legal practitioner who acts for a person on a
30 claim is not entitled to recover from any person
any amount by way of disbursements for fees paid
to an agent in connection with the claim if the
claim was made as a result of prohibited conduct
engaged in by the agent, regardless of whether the
35 agent has been proceeded against or convicted for
an offence in respect of that prohibited conduct.
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(3) If prohibited conduct engaged in by an agent
involved encouraging a person to make a claim
and the person makes a claim after the conduct is
engaged in, it is to be presumed for the purposes
5 of subsection (2) that the claim was made as a
result of that prohibited conduct unless the legal
practitioner establishes otherwise.
(4) If a claim under Division 5 of Part 5 of this Act or
Division 2A of Part IV of the Accident
10 Compensation Act 1985 for a diminution of
hearing was made as a result of prohibited
conduct engaged in by an agent, it is to be
presumed for the purposes of subsection (2) that
any subsequent claim for further diminution of
15 hearing made by the same worker (whether or not
made against the same employer) in connection
with which that agent performed any service was
made as a result of prohibited conduct engaged in
by that agent, unless the legal practitioner
20 concerned establishes otherwise.
(5) A person who has paid any amount in respect of
disbursements to a legal practitioner that the legal
practitioner would not have been entitled to
recover because of subsection (2) is entitled to
25 recover the amount from the legal practitioner as a
debt in a court of competent jurisdiction.
564 Legal practitioner and agents can be requested to
certify as to prohibited conduct
(1) If the Authority, employer or self-insurer is liable
30 to pay a legal practitioner or agent any fees, costs
or other charges incurred in connection with a
protected claim made by a person, the Authority,
employer or self-insurer is entitled to request
(in writing) the legal practitioner or agent to
35 provide a certificate under this section about the
claim (unless the legal practitioner or agent has
already provided it).
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(2) A certificate under this section is a certificate that
to the best of the legal practitioner's or agent's
knowledge, no agent has engaged in prohibited
conduct that involved encouraging that person to
5 make the claim or any previous claim, except as
may be disclosed in the certificate.
(3) If a certificate is requested--
(a) the legal practitioner or agent is not entitled
to be paid by or recover from the Authority,
10 employer or self-insurer any fees, costs or
other charges incurred in connection with the
claim concerned until the certificate is
provided (even if the fees, costs or other
charges are payable under an award or order
15 of a court); and
(b) no interest that might otherwise be payable
on those fees, costs or other charges is
payable for the period from when the
certificate is requested until it is provided
20 (despite any order or award of a court for the
payment of that interest).
(4) A legal practitioner or agent can provide the
Authority, employer or self-insurer with a
certificate under this section even if the Authority
25 or self-insurer has not requested it.
(5) A legal practitioner or agent who gives a
certificate under this section about a claim made
by a person is guilty of an offence if the legal
practitioner or agent--
30 (a) knew or had reasonable cause to suspect that
an agent had engaged in prohibited conduct
that involved encouraging the person to
make the claim; and
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(b) did not disclose that fact in the certificate.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
5 300 penalty units.
565 Power to restrict or ban recovery of costs by agents
who engage in prohibited conduct
(1) The Authority may by notification given to the
agent who is the subject of the relevant
10 notification and self-insurers direct that an agent
specified in the notification is not entitled to
recover any fees, costs or other charges in
connection with any claims or in connection with
a class of claims specified in the notification, or is
15 not so entitled unless specified conditions have
been complied with.
(2) Such a notification cannot be given unless the
Authority is satisfied that--
(a) the agent has persistently engaged in conduct
20 that constitutes or may constitute a
contravention of section 561; or
(b) in the case of an agent that is a corporation, a
director of the corporation or other person
concerned in the management of the
25 corporation has persistently engaged in any
such conduct.
(3) Before the Authority gives such a notification, it
must give the agent a reasonable opportunity to
make written submissions to the Authority on the
30 matter.
(4) The effect of a notification under this section is
that the agent specified in the notification is not
entitled to recover fees, costs or other charges
(as provided by the notification) in respect of
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services performed while the notification is in
force.
(5) An agent whose interests are affected by a
notification under this section may apply to
5 VCAT for review of the decision to give the
notification.
(6) A notification remains in force until it is
withdrawn and may be withdrawn at any time by
the Authority by giving notice of withdrawal in
10 writing to self-insurers and to the agent to whom it
applies.
566 Power to restrict or ban agents who engage in
prohibited conduct
(1) The Authority may by direction in writing given
15 to an agent prohibit either absolutely or in
specified circumstances the agent from acting for
any person in connection with any claims or in
connection with specified types of claims.
(2) Such a direction must not be given unless--
20 (a) the Authority is satisfied that the agent
concerned has persistently engaged in
conduct that the Authority reasonably
believes to be prohibited conduct and, as a
result, is not a fit and proper person to act in
25 connection with claims to which the
direction relates; and
(b) the Authority has given the agent a
reasonable opportunity to make a written
submission to the Authority on the matter.
30 (3) An agent must not knowingly act in contravention
of a direction given under this section.
Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
35 600 penalty units.
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(4) An agent who acts in contravention of a direction
given under this section is not entitled to recover
any fees, costs or other charges from a person for
anything done by the agent in contravention of the
5 direction.
(5) A person aggrieved by a direction under this
section may apply to VCAT for review of the
decision to give the direction.
(6) A direction remains in force until it is withdrawn
10 and may be withdrawn at any time by the
Authority by giving written notice of withdrawal
to the agent concerned.
567 Duty of claimants to comply with requests for
information about agents and legal practitioners
15 (1) A person who makes a protected claim must
comply with a request from the Authority or self-
insurer concerned for information as to whether
the person made use of the services of an agent or
legal practitioner in respect of the claim and how
20 the person came to make use of those services.
(2) The regulations may make provision for limiting
the operation of this section with respect to legal
practitioners.
Division 6--Regulation of providers of professional services
25 568 Suspension of payments for services
(1) If the Authority reasonably suspects that a person
who provides a professional service has
committed a relevant offence, the Authority may,
subject to section 572, by notice in writing given
30 to the person, determine that the payment of costs
for a professional service provided by that person
is suspended.
(2) If the Authority makes a determination under
subsection (1), the Authority must give a copy of
35 the notice to each self-insurer.
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(3) A determination under subsection (1) has the
effect that the costs of professional services
provided by the person to whom the determination
relates are not payable by the Authority or a self-
5 insurer during the period of suspension, being the
period beginning when the notice under
subsection (1) is given and ending--
(a) if the person is charged with an offence
within 6 months after the notice is given--
10 (i) when the court discharges the person or
finds that the person is not guilty or
finds the person guilty (whether or not
a conviction is recorded); or
(ii) the prosecution is discontinued;
15 (b) in any other case--
(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 guilty
by a court of a relevant offence, the court may, on
25 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 professional
service, or any professional service specified
30 in the order, provided by the person during
the period of suspension are not payable;
(b) an order that the person is a person for the
costs of whose professional services the
Authority is not liable to pay as
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compensation under this Act during a period
specified in the order;
(c) if the Authority approved the person as a
person who provides a professional service,
5 any one or more of the following--
(i) an order directing the Authority to
revoke its approval of the person as a
person who provides a professional
service;
10 (ii) an order specifying a period within
which the person is precluded from
making application for approval as a
person who provides a professional
service.
15 (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 grounds on which the payment
20 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 Health Insurance Act
1973 of the Commonwealth, the Authority must
25 give notice in writing to Medicare Australia of the
suspension and the grounds on which the payment
of costs is suspended.
(7) In this section, relevant offence means--
(a) an offence against this Act, the Accident
30 Compensation Act 1985 or the Workers
Compensation Act 1958; or
(b) an offence against the Crimes Act 1958 that
occurs in connection with a claim for
compensation under this Act, the Accident
35 Compensation Act 1985 or the Workers
Compensation Act 1958.
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569 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,
5 subject to section 572, by notice in writing given
to the person--
(a) may determine either or both of the
following--
(i) that the costs of any professional
10 services provided in respect of any
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
15 of whose professional 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, may
20 revoke that approval.
(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 self-
25 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 professional body;
30 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 Commonwealth, may give a
35 copy of the notice to Medicare Australia.
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(3) In this section, disqualifying offence means an
offence--
(a) punishable by imprisonment for a term of
2 years or more or by a maximum fine not
5 less than the fine for a level 7 offence
specified in Table 2 in section 109 of the
Sentencing Act 1991; or
(b) punishable by imprisonment for a term of
2 years or more under a law of another State,
10 a territory or the Commonwealth.
570 Conduct of service providers
(1) This section applies if the Authority is concerned
about the adequacy, appropriateness or frequency
of any professional service provided by a person
15 (the relevant service).
(2) If there is a relevant body responsible for
regulating conduct of persons in the trade or
profession of the person who provided the
relevant service, the Authority--
20 (a) may notify the relevant body of, or refer to
the relevant body for investigation or review,
the conduct of the person in accordance with
the relevant law and its rules and regulations,
together with relevant matters of which the
25 Authority is aware pertaining to that
conduct; and
(b) until the relevant body has investigated or
reviewed the conduct, may, by notice in
writing given to the person, determine to
30 suspend the payment of costs of the relevant
services provided 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
35 give a copy of the notice to each self-insurer.
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(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 writing given to the
5 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, by further
10 notice in writing given to the person,
suspend payment of costs of the relevant
services provided by that person;
(b) determine to review the person's conduct;
(c) suspend payment of costs of professional
15 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 until--
(a) the conduct of the person has been reviewed
20 under subsection (2) or (3); or
(b) the expiry of--
(i) in the case of a suspension under
subsection (2), the period of 6 months
after the notice of suspension is given
25 or, if that period is extended, that
period as so extended; or
(ii) in the case of a suspension under
subsection (3), the period of 6 months
after the notice of suspension is given
30 under that subsection--
whichever first occurs.
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(5) If, following a review of which notice is given
under subsection (3)(b), the Authority considers--
(a) that the person, in providing the relevant
service, has acted in an unreasonable or
5 unprofessional manner; or
(b) that the ability of the person to practise is
affected because of the person's physical or
mental health or the person's incapacity; or
(c) that the person is not of good character or is
10 otherwise not a fit and proper person--
the Authority, by notice in writing to the person,
may do any one or more of the following--
(d) suspend the person's approval as a provider
of the relevant services for a period specified
15 in the notice;
(e) determine that the costs of any relevant
services provided during the suspension are
not payable by the Authority or a self-
insurer;
20 (f) 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
25 (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 6 months--
30 the Authority may, by notice given to that person,
extend the period of the suspension by one further
period not exceeding 6 months.
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(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
5 Authority--
(a) must give a copy of the notice to each self-
insurer; and
(b) may give a copy of the notice to Medicare
Australia.
10 (8) The Authority is not subject to any civil or
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).
15 (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 of the Authority were a commission
appointed by the Governor in Council to conduct
20 the review.
(10) Section 552 applies in respect of any liability or
entitlement under this section.
(11) In this section, relevant body means the
following--
25 (a) a National Board within the meaning of the
Health Practitioner Regulation National
Law;
(b) the Authority, Committee, Director or Panel
within the meaning of section 81 of the
30 Health Insurance Act 1973 of the
Commonwealth;
(c) a body responsible for regulating conduct of
persons in the trade or profession of a person
providing professional services;
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(d) Medicare Australia;
(e) a tribunal.
571 Findings of relevant bodies
(1) This section applies if the Authority is concerned
5 about the adequacy, appropriateness or frequency
of any 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--
10 (a) that the person has, whether by act or
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
15 mental health or the person's incapacity; or
(c) that the person is not of good character or is
otherwise not a fit and proper person--
the Authority may, subject to section 572, by
notice in writing to that person, make either or
20 both of the following determinations--
(d) if the Authority determined under section
570(2) to suspend payment of costs of
relevant services provided by a person, a
determination that those costs are not
25 payable by the Authority or a self-insurer;
(e) a determination that the person is a person
for the provision of whose professional
services the Authority or a self-insurer is not
liable to pay costs as compensation under
30 this Act, the Accident Compensation Act
1985 or the Workers Compensation Act
1958, being professional services provided to
a worker after the determination is made and
during a period specified in the
35 determination.
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(3) If the Authority makes a determination under
subsection (2)--
(a) the Authority must give a copy of the
determination to each self-insurer; and
5 (b) the Authority or a self-insurer is not liable to
pay the costs of the professional services
provided after the day on which the notice of
the determination was given or, in the case of
a self-insurer, after a copy of the
10 determination was given to the self-insurer.
(4) In this section, relevant body means the
following--
(a) a National Board within the meaning of the
Health Practitioner Regulation National
15 Law;
(b) the Authority, Committee, Director or Panel
within the meaning of section 81 of the
Health Insurance Act 1973 of the
Commonwealth;
20 (c) a body responsible for regulating conduct of
persons in the trade or profession of a person
providing professional services;
(d) Medicare Australia;
(e) a court or tribunal.
25 572 Notice to be given before determination made
(1) The Authority must, before making a
determination under section 568, 569 or 570
(except subsection (3)(b) or (6)) or 571 in relation
to a person, give notice in writing to the person--
30 (a) advising the person of the determination it
proposes to make; and
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(b) inviting the person to make a submission in
writing to the Authority within 28 days after
the notice is given as to why the
determination should not be made.
5 (2) If the Authority receives a submission within the
period referred to in subsection (1), it must not
make the determination unless it has considered
the submission.
573 Authority may publish list of providers subject to
10 disciplinary action
The Authority may cause to be published--
(a) the outcome of a determination of the
Authority or order of the court under
section 568, 569, 570 or 571; and
15 (b) the name and business address of each
person who provides, or has provided,
professional services to which the
determination or order applies.
574 Victorian Civil and Administrative Tribunal
20 (1) A person whose interests are affected by a
decision of the Authority under this Division may
apply to VCAT for review of the decision.
(2) A reference in subsection (1) to a decision of the
Authority does not include a reference to a
25 decision of the Authority under section 570(2)(a)
to notify a relevant body or to refer the conduct of
a person for review.
(3) An application for review must be made within
12 months after the person became aware of the
30 decision.
(4) After a copy of the application has been served on
the Authority, VCAT may fix a date, not earlier
than 28 days after the date of service, for the
hearing of an application.
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(5) The Authority must, within 28 days after
receiving a copy of an application under this
section for review of its decision, reconsider the
decision.
5 (6) For the purposes of reconsidering a decision, the
Authority may by notice given to the applicant,
require the applicant to give further and better
particulars about the reasons for the application to
VCAT and such further information relating to the
10 application as the Authority requires.
(7) If an applicant fails, without reasonable excuse, to
give the further and better particulars or further
information requested by the Authority or fails to
give those particulars or that information within a
15 reasonable time, VCAT may take the failure into
account when making an order for costs in respect
of the proceedings.
(8) If, after re-considering its decision, the Authority
determines that the decision should be varied or
20 revoked, it may vary or revoke the decision
accordingly.
(9) The Authority must give notice in writing to the
applicant of a determination to vary or revoke its
decision.
25 (10) Unless the applicant has withdrawn the
application, VCAT may proceed to hear it after
the expiration of the period of 28 days after a copy
of the application was served on the Authority.
(11) Where VCAT exercises jurisdiction under this
30 section--
(a) VCAT may refer a medical question to a
Medical Panel for an opinion; and
(b) if a party to the proceedings so requests,
VCAT must refer a medical question to a
35 Medical Panel for an opinion; and
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(c) the opinion of the Medical Panel on that
question shall, subject to this section, be
adopted by VCAT as the answer to that
question.
5 (12) If VCAT refers a medical question to a Medical
Panel, VCAT must give the Medical Panel, and
each party to the proceedings, copies of all
documents in the possession of VCAT relating to
the medical question.
10 (13) If VCAT refers a medical question to a Medical
Panel, VCAT must give a copy of the Panel's
opinion to each party to the proceedings.
(14) An application for leave to appeal under
section 148 of the Victorian Civil and
15 Administrative Tribunal Act 1998 against an
order of VCAT under this section by a person
other than the Authority does not operate as a stay
of the order.
Division 7--Discriminatory conduct
20 575 Offence to engage in discriminatory conduct
(1) An employer or prospective employer must not
engage in discriminatory conduct for a prohibited
reason.
Penalty: In the case of a natural person,
25 240 penalty units;
In the case of a body corporate,
1200 penalty units.
(2) For the purposes of this section, an employer
engages in discriminatory conduct if the
30 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; or
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(c) treats a worker less favourably than another
worker in relation to promotion or
re-employment.
(3) Conduct referred to in subsection (2) is engaged in
5 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
(b) has taken steps to pursue a claim for
10 compensation against the employer or 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
15 (d) has complied with a requirement or request
made under section 552 or 553.
(4) For the purposes of this section, a prospective
employer engages in discriminatory conduct if
the prospective employer--
20 (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
employment less favourably than another
25 applicant for employment.
(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 injury; or
30 (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 Authority
or a self-insurer; or
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(d) has complied with a requirement or request
made under section 552 or 553.
(6) In proceedings for an offence against this section,
if all the facts constituting the discriminatory
5 conduct are proved, the employer or prospective
employer bears the 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.
10 (7) It is a defence to proceedings for an offence
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, the
15 Accident Compensation Act 1985, the
Workers Compensation Act 1958 or the
Occupational Health and Safety Act 2004;
or
(b) the worker or applicant for employment was
20 unable to perform the inherent requirements
of the employment, even if the employer or
prospective employer had made reasonable
adjustments to those requirements; or
(c) the worker was engaged in fraud or
25 dishonesty in relation to, or associated with,
the giving of notice of the injury or pursuit of
the claim for compensation.
576 Order for damages or reinstatement
(1) If an employer or prospective employer is
30 convicted or found guilty of an offence against
section 575 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--
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(a) an order that the employer or prospective
employer pay (within a specified period) to
the worker or applicant for employment such
damages as the court considers appropriate
5 to compensate the worker or applicant for
hurt and humiliation as the result of the
discriminatory conduct;
(b) an order that the employer or prospective
employer pay the worker or applicant an
10 amount not exceeding the remuneration
that--
(i) in the case of a worker, but for the
discriminatory conduct, the worker
would have received from that
15 employer during the 12 months
immediately after the discriminatory
conduct was engaged in;
(ii) in the case of an applicant for
employment, the applicant would have
20 received if the applicant had 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 position; or
30 (ii) the worker or applicant for employment
be employed in the position for which
he or she had applied or a similar
position.
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(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 discriminatory conduct relates.
5 (3) Nothing in a proceeding referred to in section 575
or 578 gives rise to an issue estoppel in relation to
a claim for compensation under this Act, the
Accident Compensation Act 1985 or the
Workers Compensation Act 1958 or an
10 application or proceedings referred to in
Division 2 of Part 7 of this Act or Division 8A
or 9 of Part IV of the Accident Compensation
Act 1985.
577 Procedure if prosecution is not brought under
15 section 575
(1) If--
(a) a worker or applicant for employment
considers that an offence against section 575
has occurred; and
20 (b) no prosecution has been brought in respect of
that occurrence within 6 months of that
occurrence--
the worker or applicant for employment may
request in writing that the Authority bring a
25 prosecution in respect of that occurrence.
(2) Within 3 months after it receives a request under
subsection (1), the Authority must--
(a) investigate the matter; and
(b) advise in writing the worker or applicant for
30 employment that a prosecution has been or
will be brought or give reasons why a
prosecution will not be brought.
(3) If the Authority advises the worker or applicant
for employment that a prosecution will not be
35 brought, the Authority must refer the matter to the
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Director of Public Prosecutions if the worker or
applicant for employment requests in writing that
the Authority do so.
(4) The Director of Public Prosecutions must--
5 (a) consider the matter; and
(b) advise the Authority in writing whether or
not the Director of Public Prosecutions
considers that a prosecution should be
brought.
10 (5) The Authority must--
(a) ensure a copy of the advice is sent to the
worker or applicant for employment who
made the request; and
(b) if the Authority declines to follow advice
15 from the Director of Public Prosecutions to
bring proceedings, give the worker or
applicant for employment written reasons for
its decision.
(6) The Authority must include in its annual report,
20 and publish on its website, a statement setting
out--
(a) the number of requests received by the
Authority under subsection (1); and
(b) the number of cases in which the Authority
25 has advised under subsection (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 advised under
30 subsection (4) that a prosecution should be
brought or should not be brought.
(7) No proceedings may be brought in respect of a
decision to bring or not to bring proceedings for
an offence under section 575.
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578 Civil proceedings relating to discriminatory conduct
(1) For the purposes of this section, an employer
engages in discriminatory conduct if the
employer--
5 (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; or
(c) treats a worker less favourably than another
10 worker in relation to promotion 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--
15 (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 any
other employer; or
20 (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
(d) has complied with a requirement or request
made under section 552 or 553.
25 (3) 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 an
applicant for employment; or
30 (b) in offering, or refusing to offer, terms of
employment, treats an applicant for
employment less favourably than another
applicant for employment.
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(4) Conduct referred to in subsection (3) is engaged in
for a prohibited reason if a substantial reason is
because the applicant for employment--
(a) has given an employer notice of an injury; or
5 (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 Authority
or a self-insurer; or
10 (d) has complied with a requirement or request
made under section 552 or 553.
(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
15 an employer or a 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 the date on
20 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 employer
bears the burden of adducing evidence that the
25 reason alleged in the proceeding was not a
substantial reason for the conduct.
(8) It is a defence to a proceeding under this section if
the employer or prospective employer proves
that--
30 (a) the relevant conduct was necessary to
comply with the requirements of this Act, the
Accident Compensation Act 1985, the
Workers Compensation Act 1958 or the
Occupational Health and Safety Act 2004;
35 or
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(b) the worker or applicant for employment was
unable to perform the inherent requirements
of the employment even if the employer or
prospective employer made reasonable
5 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 or pursuit of
the claim for compensation.
10 (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 discriminatory conduct for a
prohibited reason--
15 (a) an order that the employer or prospective
employer pay (within a specified period) to
the worker or applicant for employment such
damages as the court considers appropriate
to compensate the worker or applicant for
20 hurt and humiliation as a 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
25 that--
(i) in the case of a worker, but for the
discriminatory conduct, the worker
would have received from that
employer during the 12 months
30 immediately after the discriminatory
conduct was engaged in;
(ii) in the case of an applicant for
employment, the applicant would have
received if the applicant had been
35 employed by that prospective employer
for a period not exceeding 12 months
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from the day on which the applicant
made the application for employment;
(c) an order that--
(i) the worker be reinstated or re-employed
5 in the worker's former position or, if
that position is not available, in a
similar position; or
(ii) the worker or applicant for employment
be employed in the position for which
10 the worker or applicant had applied or a
similar position.
(10) 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
15 injury to which the discriminatory conduct relates.
(11) Each party to a proceeding under this section 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.
20 579 Effect of orders on other orders under section 575,
576 or 578
(1) The making of an order in a proceeding under
section 578 does not prevent the bringing of a
proceeding for an offence against section 575 in
25 respect of the same conduct.
(2) If a court makes an order in a proceeding under
section 576, a court cannot make an order under
section 578 in respect of the same conduct.
(3) If a court makes an order in a proceeding under
30 section 578, a court cannot make an order under
section 576 in a proceeding for an offence against
section 575 in respect of the same conduct.
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580 Claims under section 576 or 578
An application for an order under section 576 or a
proceeding under section 578 is not a proceeding
in respect of an injury within the meaning of
5 section 326 of this Act or section 134AB(1) of the
Accident Compensation Act 1985.
Division 8--Offences
Subdivision 1--Fraud, bribery and false information
581 Fraud
10 (1) A person must not obtain or attempt to obtain
fraudulently any payment under this Act, the
Accident Compensation Act 1985 or the
Workers Compensation Act 1958.
Penalty: In the case of a natural person,
15 240 penalty units or 2 years
imprisonment;
In the case of a body corporate,
1200 penalty units.
(2) Without limiting the generality of subsection (1),
20 a person must not obtain or attempt to obtain
fraudulently any payment under this Act, the
Accident Compensation Act 1985 or the
Workers Compensation Act 1958 for any other
person, or knowingly assist any other person to
25 obtain fraudulently any payment under this Act,
the Accident Compensation Act 1985 or the
Workers Compensation Act 1958.
Penalty: In the case of a natural person,
240 penalty units or 2 years
30 imprisonment;
In the case of a body corporate,
1200 penalty units.
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582 Bribery
(1) A person employed in the administration of this
Act, the Accident Compensation Act 1985 or the
Workers Compensation Act 1958 must not
5 corruptly ask for, receive or obtain, or agree to
receive or obtain, any money, property or benefit
of any kind for the person employed or any other
person--
(a) so that the person employed will forego or
10 neglect his or her functions or duties under
this Act or in order to influence him or her in
the performance of his or her functions or
duties under this Act; or
(b) on account of anything already done or
15 omitted to be done or to be afterwards done
or omitted to be done by the person
employed in the performance of his or her
functions or duties under this Act; or
(c) for the person employed to use or take
20 advantage of his or her position improperly
to gain any benefit or advantage for or
facilitate the commission of an offence by
another person.
Penalty: In the case of a natural person,
25 240 penalty units or 2 years
imprisonment;
In the case of a body corporate,
1200 penalty units.
(2) A person must not corruptly give to, confer on or
30 procure for, or promise or offer to give to, confer
on or procure for, a person employed in the
administration of this Act or any other person any
money, property or benefit of any kind--
(a) so that the person employed will forego or
35 neglect his or her functions or duties under
this Act or in order to influence him or her in
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the performance of his or her functions or
duties under this Act; or
(b) on account of anything already done or
omitted to be done or to be afterwards done
5 or omitted to be done by the person
employed in the performance of his or her
functions or duties under this Act; or
(c) for the person employed to use or take
advantage of his or her position improperly
10 to gain any benefit or advantage for or
facilitate the commission of an offence by
the first-mentioned person or any other
person.
Penalty: In the case of a natural person,
15 240 penalty units or 2 years
imprisonment;
In the case of a body corporate,
1200 penalty units.
583 False or misleading information
20 (1) A provider of a professional service or a person on
behalf of such a provider must not give another
person information knowing that it may be used in
connection with a claim for compensation under
this Act, the Accident Compensation Act 1985
25 or the Workers Compensation Act 1958 if the
provider or person knows that the information is
false or misleading in a material particular.
Penalty: In the case of a natural person,
180 penalty units or 6 months
30 imprisonment or both;
In the case of a body corporate,
900 penalty units.
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(2) A person must not use information given by a
provider of a professional service or by a person
on behalf of such a provider in connection with a
claim for compensation under this Act, the
5 Accident Compensation Act 1985 or the
Workers Compensation Act 1958 if the person
knows that the information is false or misleading
in a material particular.
Penalty: In the case of a natural person,
10 180 penalty units or 6 months
imprisonment or both;
In the case of a body corporate,
900 penalty units.
584 False or misleading statements
15 (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 employer
20 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 by the employer in
accordance with this Act and the relevant
25 premiums order.
Penalty: In the case of a natural person,
180 penalty units or imprisonment for
6 months;
In the case of a body corporate,
30 900 penalty units.
(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
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(b) advise an employer to omit or fail to include
in a document--
to be given to the Authority or an authorised agent
for or in relation to the calculation or collection of
5 premium payable by the employer, in accordance
with this Act and the relevant premiums order,
any material or data or any fact or circumstance
that is relevant to the calculation or collection of
premium.
10 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.
15 585 False information
(1) A person must not provide orally or in writing or
by electronic communication any false or
misleading information under this Act, the
Accident Compensation Act 1985 or the
20 Workers Compensation Act 1958.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
25 (2) Subsection (1) is not limited to information in or
in connection with any claim, application,
certificate or notice under this Act, the Accident
Compensation Act 1985 or the Workers
Compensation Act 1958.
30 (3) A person must not make a statement knowing that
it is false or misleading in a material particular--
(a) in a notice given by the person under this
Act, the Accident Compensation Act 1985
or the Workers Compensation Act 1958; or
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(b) in a claim for compensation made by the
person; or
(c) in a medical certificate or other document
that the person knows may accompany or be
5 supplied in connection with a claim for
compensation; or
(d) in a declaration given under section
167(1)(b) of this Act or section 111(1)(b) of
the Accident Compensation Act 1985.
10 Penalty: In the case of a natural person,
180 penalty units or 6 months
imprisonment or both;
In the case of a body corporate,
900 penalty units.
15 586 Investigations
(1) The Authority may, subject to and in accordance
with the regulations, inquire into and investigate
activities carried on by any person or persons in
the course of which the Authority reasonably
20 believes an offence against this Subdivision was
or may have been committed.
(2) Upon commencing an inquiry or investigation
under subsection (1), the Authority must give
notice in writing to the Chief Commissioner of
25 Police of the proposed inquiry or investigation.
(3) The Authority must give to the Chief
Commissioner of Police any information
requested by the Commissioner and obtained by
the Authority in the course of an inquiry or
30 investigation under this section.
587 Indemnity
If the Authority considers that an offence may
have been committed against this Subdivision, the
Authority may recommend to the Director of
35 Public Prosecutions that appropriate indemnities
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be offered for the purpose of enabling information
to be obtained about the alleged offence.
Subdivision 2--Other offences
588 Unauthorised use of information
5 A person must not use information obtained under
or pursuant to this Act, the Accident
Compensation Act 1985 or the Workers
Compensation Act 1958 except as authorised by
or in respect of a matter or for a purpose arising
10 under this Act, the Accident Compensation Act
1985 or the Workers Compensation Act 1958.
Penalty: 60 penalty units.
589 Obstructing officers
A person shall not obstruct or hinder a person
15 acting in the administration of this Act or the
regulations, the Accident Compensation Act
1985 or the regulations under that Act or the
Workers Compensation Act 1958.
Penalty: In the case of a natural person,
20 60 penalty units;
In the case of a body corporate,
300 penalty units.
Division 9--Miscellaneous
590 Certificate
25 A certificate purporting to be signed by an officer
or employee of the Authority certifying as to any
of the particulars prescribed under this Act or the
Accident Compensation Act 1985 specified in
the certificate relating to amounts (including
30 amounts of compensation) paid or payable by the
Authority under this Act is evidence of the matters
stated in the certificate and, in the absence of
evidence to the contrary, is proof of those matters.
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591 State taxation officer
The Authority may perform the functions of a
State taxation officer for the purposes of Part IIIA
of the Taxation Administration Act 1953 of the
5 Commonwealth.
592 Signature
(1) Any document or copy of a document issuing out
of the office of the Authority and bearing the
written, stamped or printed signature of the Chief
10 Executive Officer of the Authority or a delegate of
the Authority or a person authorised by a delegate,
is until the contrary is proved, to be taken to have
been duly signed by the person by whom it
purports to have been signed.
15 (2) Judicial notice is to be taken of a signature to
which subsection (1) applies and of the fact that
the person whose signature it purports to be holds
or has held the office of Chief Executive Officer
of the Authority or is or has been a delegate of the
20 Authority or a person authorised by a delegate.
593 Service of documents by the Authority
(1) Subject to this Act, a document under this Act or
the regulations or under the Accident
Compensation Act 1985 or regulations under that
25 Act or under the Workers Compensation Act
1958 required or authorised to be given to or
served on a person (other than a body corporate)
may be served by--
(a) giving or serving it personally on the person;
30 or
(b) sending it by post or electronic
communication to the person at the person's
usual or last known place of residence or
business or usual or last known electronic
35 address or post office box; or
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(c) leaving it at that person's usual or last known
place of residence with a person on the
premises who is apparently at least 16 years
old; or
5 (d) leaving it at the person's usual or last known
place of business with a person who is
apparently employed at the premises and
who is apparently at least 16 years old; or
(e) if the person is an employer registered under
10 section 434, sending it by post or electronic
communication to the last address for service
shown on a communication from the
employer to the Authority.
(2) A document under this Act or the regulations
15 required or authorised to be given or served on a
body corporate may be served by--
(a) giving it to or serving it on; or
(b) sending it by post or electronic
communication to--
20 the body corporate at the head office, registered
office or principal office of the body corporate.
(3) This section is in addition to, and not in
derogation from, the Interpretation of
Legislation Act 1984, the Electronic
25 Transactions (Victoria) Act 2000 and
sections 109X and 601CX of the Corporations
Act.
594 Service of documents on the Authority
(1) Any notice, summons, writ or other process and
30 any return, application, notice, statement or form
to be served on the Authority for the purposes of
this Act, the Accident Compensation Act 1985
or the Workers Compensation Act 1958 or
regulations under this Act may be served--
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(a) by being lodged at the office of the
Authority; or
(b) if an authorised agent is acting on behalf of
the Authority in the relevant matter, by being
5 lodged at the office of the authorised agent;
or
(c) on a person employed in the administration
of this Act, the Accident Compensation Act
1985 or the Workers Compensation Act
10 1958 and authorised in writing by the
Authority to accept service of documents on
behalf of the Authority.
(2) This section is in addition to, and not in
derogation of, any other provisions of this Act, the
15 Interpretation of Legislation Act 1984 or the
Electronic Transactions (Victoria) Act 2000
relating to the service of documents.
595 Secrecy provisions
(1) This section applies to a person who is, or has at
20 any time been--
(a) a member of the Board; or
(b) appointed for the purposes of this Act, other
than Part 8; or
(c) engaged as a member of staff of the
25 Authority; or
(d) authorised to perform or exercise any
function or power of the Authority or any
function or power on behalf of the Authority,
other than a function or power under Part 8.
30 (2) A person to whom this section applies may--
(a) produce a document to a court in the course
of a criminal proceeding or in the course of
any proceeding under this Act, the Accident
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Compensation Act 1985 or the Workers
Compensation Act 1958; and
(b) produce a document or divulge information
to a Conciliation Officer, a Medical Panel,
5 the Magistrates' Court, VCAT or the County
Court with respect to a matter arising under
this Act, the Accident Compensation Act
1985 or the Workers Compensation Act
1958; and
10 (c) divulge or communicate to a court in the
course of a criminal proceeding referred to in
paragraph (a) any matter or thing coming
under the notice of the person in the
performance of official duties or in the
15 performance of a function or the exercise of
a power referred to in that paragraph; and
(d) produce a document or divulge or
communicate information to an entity
specified in Schedule 8; and
20 (e) produce a document or divulge or
communicate information as provided in
section 92(1)(c), (e) and (vf) of the Taxation
Administration Act 1997; and
(f) produce a document or disclose information
25 which is required or permitted to be
produced or disclosed by or under this Act or
any other Act.
(3) A person to whom this section applies must not,
either directly or indirectly, make a record of, or
30 divulge or communicate to any person, any
information that is or was acquired by the person
by reason of being or having been appointed,
engaged or authorised as specified in subsection
(1), or make use of any such information, for any
35 purpose except--
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(a) to the extent necessary to perform official
duties or to perform or exercise a function or
power specified under subsection (1); or
(b) for a purpose specified in subsection (2).
5 (4) The Minister must cause a report of requests for
the approval of persons or bodies by the Governor
in Council under item 15 of Schedule 8 to be laid
before each House of the Parliament within
14 sitting days of that House after 30 June in each
10 year.
(5) The report must include the following matters in
respect of each request--
(a) the name of the person sought to be
approved;
15 (b) the reason for the request;
(c) the date of the request;
(d) whether the request was approved or refused.
596 Liability of premium adviser
(1) If, through the negligence of a premium adviser,
20 an employer is liable to pay a default penalty or
late payment penalty as determined by the
Authority in accordance with Part 10--
(a) the premium adviser is liable to pay the
employer the amount of the default penalty
25 or late payment penalty; and
(b) the amount of the default penalty or late
payment penalty may be sued for and
recovered by the employer in any court of
competent jurisdiction.
30 (2) This section does not exonerate an employer from
the liability to pay a default penalty or late
payment penalty as determined by the Authority
in accordance with Part 10.
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(3) In this section, premium adviser means a person
who provides professional advice to an employer
in respect of an employer's liability to pay
premiums under a premiums order and includes a
5 financial adviser, legal practitioner and
accountant.
597 Protection against self-incrimination
(1) A natural person may refuse or fail to give
information or do any other thing that the person
10 is required to do by or under this Act, the
Accident Compensation Act 1985 or the
Workers Compensation Act 1958 if giving the
information or doing the other thing would tend to
incriminate the person.
15 (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, the
Accident Compensation Act 1985 or the
Workers Compensation Act 1958 to produce.
20 (3) If a person is required to produce a document
under this section, the document, and evidence
obtained as a result of the production of the
document, must not be used in proceedings
against a person other than--
25 (a) criminal or civil proceedings under this Act,
the Accident Compensation Act 1985 or
the Workers Compensation Act 1958; or
(b) proceedings for an offence against the
Crimes Act 1958 that arises in connection
30 with a claim for compensation under this
Act, the Accident Compensation Act 1985
or the Workers Compensation Act 1958.
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598 Legal professional privilege and client legal privilege
not affected
Nothing in this Act, the Accident Compensation
Act 1985 or the Workers Compensation Act
5 1958--
(a) entitles or requires a person to disclose
information that is the subject of legal
professional privilege or client legal
privilege; or
10 (b) affects the law or practice relating to legal
professional privilege or client legal
privilege.
599 Refunding money to the Authority etc.
(1) If a person is convicted or found guilty of an
15 offence against this Act, the Accident
Compensation Act 1985 or the Workers
Compensation Act 1958 or of an offence against
the Crimes Act 1958 which occurs in connection
with a claim for compensation under this Act, the
20 Accident Compensation Act 1985 or the
Workers Compensation Act 1958, any payments
made by the Authority, a self-insurer or an
employer as a result of the commission of the
offence may be recovered as a debt or set-off from
25 the person to the Authority, self-insurer or
employer together with--
(a) an additional amount equal to half the
amount of the payments made; and
(b) interest at the prescribed rate, on the
30 payments and the additional amount
calculated from the date on which the
payments were made or the additional
amount was due (as the case may be) until
the debt or set-off is paid.
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(2) If a court convicts, or finds guilty, a person, of an
offence against this Act, the Accident
Compensation Act 1985 or the Workers
Compensation Act 1958 or of an offence against
5 the Crimes Act 1958 which occurs in connection
with a claim for compensation under this Act, the
Accident Compensation Act 1985 or the
Workers Compensation Act 1958, it may, on the
application of the Authority, a self-insurer or an
10 employer order the person to pay a sum equal to
the amount of any payments made by the
Authority, the self-insurer or the employer as a
result of the commission of the offence together
with--
15 (a) an additional amount equal to half the
amount of the payments made; and
(b) interest, at the prescribed rate on the
payments and the additional amount
calculated from the date on which the
20 payments were made or the additional
amount was due (as the case may be) until
the debt is paid.
(3) An order under subsection (2) may be made on an
application made as soon as practicable after the
25 offender is convicted or found guilty of the
offence.
600 Imputing conduct of bodies corporate
(1) For the purposes of this Act, the Accident
Compensation Act 1985 or the Workers
30 Compensation Act 1958, any conduct engaged in
on behalf of a body corporate by an employee,
agent or officer of the body corporate acting
within the actual or apparent scope of his or her
employment, or within his or her actual or
35 apparent authority, is conduct also engaged in by
the body corporate.
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(2) In this section--
body corporate has the same meaning as
corporation has in section 57A of the
Corporations Act;
5 officer in relation to a body corporate means--
(a) a person who is an officer (as defined
by section 9 of the Corporations Act) of
the body corporate; or
(b) a person (other than a person referred to
10 in paragraph (a)), by whatever name
called, who is concerned in, or takes
part in, the management of the body
corporate.
601 Criminal liability of officers of bodies corporate--
15 failure to exercise due diligence
(1) If a body corporate commits an offence against a
provision specified in subsection (2), an officer of
the body corporate also commits an offence
against the provision if the officer failed to
20 exercise due diligence to prevent the commission
of the offence by the body corporate.
(2) For the purposes of subsection (1), the following
provisions are specified--
(a) section 16;
25 (b) section 17(1) and (3);
(c) section 73(1) and (2);
(d) section 103(1);
(e) section 104(1);
(f) section 105(1);
30 (g) section 106(1);
(h) section 107(1) and (2);
(i) section 108(1);
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(j) section 109(2);
(k) section 120(2);
(l) section 136(4);
(m) section 139(2);
5 (n) section 143(2);
(o) section 146;
(p) section 147;
(q) section 179(3);
(r) section 292;
10 (s) section 295;
(t) section 384(5);
(u) section 389(2) and (3);
(v) section 403(4);
(w) section 407(4);
15 (x) section 409(5);
(y) section 412(3);
(z) section 554(1) and (3);
(za) section 558(8), (9) and (10);
(zb) section 561;
20 (zc) section 563(1);
(zd) section 564(5);
(ze) section 566(3);
(zf) section 575(1);
(zg) section 581(1) and (2);
25 (zh) section 582(1) and (2);
(zi) section 583(1) and (2);
(zj) section 584(1) and (2);
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(zk) section 585(1) and (3);
(zl) section 588;
(zm) section 589.
(3) In determining whether an officer of a body
5 corporate failed to exercise due diligence, a court
may have regard to--
(a) what the officer knew, or ought reasonably
to have known, about the commission of the
offence by the body corporate; and
10 (b) whether or not the officer was in a position
to influence the body corporate in relation to
the commission of the offence by the body
corporate; and
(c) what steps the officer took, or could
15 reasonably have taken, to prevent the
commission of the offence by the body
corporate; and
(d) any other relevant matter.
(4) Without limiting any other defence available to
20 the officer, an officer of a body corporate may
rely on a defence that would be available to the
body corporate if it were charged with the offence
with which the officer is charged and, in doing so,
the officer bears the same burden of proof that the
25 body corporate would bear.
(5) An officer of a body corporate may commit an
offence against a provision specified in subsection
(2) whether or not the body corporate has been
prosecuted for, or found guilty of, an offence
30 against that provision.
(6) An officer of a body corporate (including a body
corporate representing the Crown) who is a
volunteer is not liable to be prosecuted under this
section for anything done or not done by him or
35 her as a volunteer.
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Note
Officer of a body corporate includes a person who makes or
participates in the making of decisions that affect the whole
or a substantial part of the body corporate's business and a
5 person who has the capacity to affect significantly the body
corporate's financial standing (Corporations Act).
(7) In this section--
body corporate has the same meaning as
corporation has in section 57A of the
10 Corporations Act;
officer in relation to a body corporate means--
(a) a person who is an officer (as defined
by section 9 of the Corporations Act) of
the body corporate; or
15 (b) a person (other than a person referred to
in paragraph (a)), by whatever name
called, who is concerned in, or takes
part in, the management of the body
corporate;
20 volunteer means a person who is acting on a
voluntary basis (irrespective of whether the
person receives out-of-pocket expenses).
602 Responsible agency for the Crown
(1) If proceedings are brought against the Crown for
25 an offence against this Act, the Accident
Compensation Act 1985 or the Workers
Compensation Act 1958 or the regulations under
this Act or the Accident Compensation Act 1985
or the Workers Compensation Act 1958, the
30 responsible agency in respect of the offence may
be specified in any document initiating, or relating
to, the proceedings.
(2) The responsible agency in respect of an offence is
entitled to act in proceedings against the Crown
35 for the offence and, subject to any relevant rules
of court, the procedural rights and obligations of
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the Crown as the accused in the proceedings are
conferred or imposed on the responsible agency.
(3) The person prosecuting the offence may change
the responsible agency during the proceedings
5 with the court's leave.
(4) In this section, the responsible agency in respect
of an offence is the agency of the Crown--
(a) whose acts or omissions are alleged to
constitute the offence; or
10 (b) if that agency has ceased to exist, that is the
successor of that agency; or
(c) if that agency has ceased to exist and there is
no clear successor, that the court declares to
be the responsible agency.
15 603 Proceedings against successors to public bodies
(1) Proceedings for an offence against this Act, the
Accident Compensation Act 1985 or the
Workers Compensation Act 1958 or the
regulations under this Act or the Accident
20 Compensation Act 1985 or the Workers
Compensation Act 1958 that were instituted
against a public body before its dissolution, or that
could have been instituted against a public body if
not for its dissolution, may be continued or
25 instituted against its successor if the successor is a
public body.
(2) In this section, public body means--
(a) a body corporate representing the Crown; or
(b) a State owned enterprise or reorganising
30 body (within the meaning of the State
Owned Enterprises Act 1992); or
(c) a Council (within the meaning of the Local
Government Act 1989); or
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(d) a public entity (within the meaning of the
Public Administration Act 2004).
604 Undertakings
(1) The Authority may accept a written undertaking
5 given by a person in connection with a matter
relating to a contravention, or an alleged
contravention, of a relevant provision.
(2) The undertaking must specify--
(a) the action proposed to be taken by the
10 person; and
(b) the timeframe in which the proposed action
is to be taken; and
(c) any other relevant matter.
(3) The person may, with the Authority's consent,
15 withdraw or vary the undertaking at any time.
(4) A proceeding may not be brought against the
person who has given the undertaking for an
offence in relation to the matter referred to in
subsection (1).
20 (5) If the Authority considers that the person who
gave the undertaking has breached any 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
25 person has breached a term of the 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
30 (b) any other order that the Magistrates' Court
considers appropriate.
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(7) For the purposes of this section, a relevant
provision means a provision of this Act, the
Accident Compensation Act 1985 or the
Workers Compensation Act 1958 for which the
5 penalty for the contravention of the provision is--
(a) in the case of a natural person, no more than
180 penalty units; or
(b) in the case of a body corporate, no more than
900 penalty units.
10 605 Adverse publicity orders
(1) If a court convicts a person, or finds a person
guilty, of an offence against this Act, the
Accident Compensation Act 1985 or the
Workers Compensation Act 1958 or the
15 regulations under this Act or the Accident
Compensation Act 1985, the court may make an
order (adverse publicity order) in relation to the
offender requiring the offender--
(a) to take either or both of the following actions
20 within the period specified in the order--
(i) to publicise, in the way specified in the
order, the offence, its consequences, the
penalty imposed and any other related
matter;
25 (ii) to notify a specified person or specified
class of persons, in the way specified in
the order, of the offence, its
consequences, the penalty imposed and
any other related matter; and
30 (b) to give the Authority, within 7 days after the
end of the period specified in the order,
evidence that the action or actions were
taken by the offender in accordance with the
order.
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(2) The court may make an adverse publicity order on
its own initiative or on the application of the
prosecutor.
(3) If the offender fails to give evidence to the
5 Authority in accordance with subsection (1)(b),
the Authority, or a person authorised in writing by
the Authority, may take the action or actions
specified in the order.
(4) However, if--
10 (a) the offender gives evidence to the Authority
in accordance with 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
15 accordance with the order--
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.
20 (5) If the Authority, or a person authorised in 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
25 applying for the order, are a debt due by the
offender to the Authority.
(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
30 maximum penalty amount that 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--
35 (a) imposing a penalty on the offender; or
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(b) making any other order that the court may
make in relation to the offence.
Division 10--Prosecutions
606 Institution of prosecutions under Part 4
5 Despite any law to the contrary, proceedings for
an offence against Part 4 may, with the authority
of the Director of Public Prosecutions, be
instituted at any time after the offence is
committed.
10 607 Return to work--procedure if prosecution is not
brought
(1) If--
(a) a person considers that the occurrence of an
act, matter or thing constitutes an offence
15 against Part 4; and
(b) no prosecution has been brought in respect of
the occurrence of the act, matter or thing
within 6 months of that occurrence--
the person may request in writing that the
20 Authority bring a prosecution.
(2) Within 3 months after the Authority receives a
request under subsection (1) it must--
(a) investigate the matter; and
(b) advise the person in writing whether a
25 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
prosecution will not be brought, the Authority
30 must refer the matter to the Director of Public
Prosecutions if the person requests in writing that
the Authority do so.
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(4) The Director of Public Prosecutions must consider
the matter and advise the Authority in writing
whether or not the Director considers that a
prosecution should be brought.
5 (5) The Authority must--
(a) ensure a copy of the advice is sent to the
person who made the request; and
(b) if the Authority declines to follow advice
from the Director of Public Prosecutions to
10 bring proceedings, give the person written
reasons for its decision.
(6) The Authority must include in its annual report,
and publish on its website, a statement setting
out--
15 (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 (2)(b) that a
prosecution has been or will be brought, or
20 will not be brought; 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 should not be brought.
25 (7) No proceedings may be brought in respect of a
decision by the Authority to bring or not to bring a
prosecution following advice from the Director of
Public Prosecutions.
608 Institution of prosecutions
30 (1) A charge-sheet charging an offence against--
(a) this Act, the Accident Compensation Act
1985 or the Workers Compensation Act
1958; or
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(b) the Crimes Act 1958 which occurs in
connection with a claim for compensation
under this Act, the Accident Compensation
Act 1985 or the Workers Compensation
5 Act 1958--
may be filed by the Authority or by any person
authorised by the Authority to file charge-sheets
on behalf of the Authority.
(2) An affidavit for use in proceedings relating to a
10 charge specified in subsection (1) may be sworn
and taken before a person authorised by the
Authority for this purpose.
(3) Any prosecution instituted in the name of the
Authority is, in the absence of evidence to the
15 contrary, to be taken to have been instituted by the
authority of the Authority.
(4) A person referred to in subsection (1) may appear
on behalf of the Authority or the Minister, as the
case requires, in any proceedings for an offence
20 referred to in that subsection.
(5) Despite any law to the contrary, proceedings may
be instituted for an offence against section 73(1)
or (2), 103(1), 108, 179(3) or (4), 434(3), 575,
581, 583, 584 or 585 of this Act or section
25 114D(2) of the Accident Compensation Act
1985 within 3 years after the alleged offence
occurred.
(6) The Authority must make guidelines in
accordance with section 612 for or with respect to
30 the prosecution of offences under this Act.
(7) The Subordinate Legislation Act 1994 does not
apply to the first guidelines made for or with
respect to the prosecution of offences under this
Act.
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Division 11--Directions and Guidelines
609 Directions given by the Minister
(1) A direction given by the Minister in accordance
with this section--
5 (a) must be published in the Government
Gazette and on a Government Internet
website; and
(b) must not relate to a specific person; and
(c) may be of general or limited application; and
10 (d) may differ according to differences in time,
place or circumstance; and
(e) may specify any other matter or thing
required or permitted by this Act to be
specified or necessary to be specified to give
15 effect to this Act; and
(f) may specify fees.
(2) A person to whom a direction is given by the
Minister in accordance with this section must
comply with the direction.
20 (3) The Minister may amend or revoke a direction
given by the Minister in accordance with this
section by publishing the amendment or
revocation of the direction in the Government
Gazette and on a Government Internet website.
25 (4) A direction or an amendment or revocation of a
direction given by the Minister in accordance with
this section takes effect--
(a) on the day after the direction or the
amendment or revocation of the direction is
30 published in the Government Gazette; or
(b) on any later day specified in the direction or
the amendment or revocation of the
direction.
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610 Directions given for the purposes of Part 4
(1) A copy of each direction given in accordance with
section 609 for the purposes of Part 4, or an
amendment or revocation of a direction given in
5 accordance with that section for the purposes of
that Part, must be laid before both Houses of
Parliament on or before the 6th sitting day after
notice of the direction, amendment or revocation
is published in the Government Gazette.
10 (2) Parts 3A and 5A of the Subordinate Legislation
Act 1994 apply to a direction given, amended or
revoked in accordance with subsection (1) as if it
were a legislative instrument within the meaning
of that Act laid before each House of the
15 Parliament under section 16B of that Act.
611 Guidelines made by the Minister
(1) Guidelines made by the Minister in accordance
with this section must be published in the
Government Gazette and on a Government
20 Internet website.
(2) The Minister may amend or revoke guidelines
made in accordance with this section by
publishing the amendment or revocation of the
guidelines in the Government Gazette and on a
25 Government Internet website.
(3) Guidelines or an amendment or revocation of
guidelines made by the Minister in accordance
with this section take effect--
(a) on the day after the guidelines or the
30 amendment or revocation of the guidelines
are published in the Government Gazette; or
(b) on any later day specified in the guidelines
or the amendment or revocation of the
guidelines.
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612 Guidelines made by the Authority
(1) Guidelines made by the Authority in accordance
with this section must be published in the
Government Gazette and on a Government
5 Internet website.
(2) The Authority may amend or revoke guidelines
made under this Act to which this section applies
by publishing the amendment or revocation of the
guidelines in the Government Gazette and on a
10 Government Internet website.
(3) Guidelines or an amendment or revocation of
guidelines made by the Authority in accordance
with this section take effect--
(a) on the day after the guidelines or the
15 amendment or revocation of the guidelines
are published in the Government Gazette; or
(b) on any later day specified in the guidelines
or the amendment or revocation of the
guidelines.
20 Division 12--The Authority and the IBAC
613 Mandatory notification of corrupt conduct to IBAC
(1) The Chief Executive Officer of the Authority must
notify the IBAC of any matter of which the Chief
Executive Officer of the Authority becomes aware
25 in the performance of functions or duties or the
exercise of powers under this Act or any other Act
that appears to involve corrupt conduct.
(2) This section does not apply to corrupt conduct of
the IBAC or IBAC personnel.
30 (3) This section does not apply to a matter referred to
the Authority by the IBAC under section 73 of the
Independent Broad-based Anti-corruption
Commission Act 2011.
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(4) If the Chief Executive Officer of the Authority
considers at any time that any matter described in
subsection (3) appears to involve conduct that is
serious corrupt conduct, the Chief Executive
5 Officer of the Authority must inform the IBAC.
614 Consultation prior to notification
For the purposes of deciding whether to make a
notification under this Division to the IBAC, the
Chief Executive Officer of the Authority may
10 consult the IBAC.
615 Communication of information to the IBAC
(1) At any time, the Chief Executive Officer of the
Authority may provide or disclose any
information received or obtained in the course of
15 the performance of functions or duties or the
exercise of powers under this Act or any other Act
to the IBAC if the Chief Executive Officer of the
Authority considers that--
(a) the information is relevant to the
20 performance of the functions or duties or the
exercise of powers of the IBAC; and
(b) it is appropriate for the information to be
brought to the attention of the IBAC, having
regard to the nature of the information.
25 (2) This section applies subject to any restriction on
the provision or disclosure of information under
this Act or any other Act (including any
Commonwealth Act).
616 Authority not to prejudice investigations of the
30 IBAC
(1) If the Authority is, or becomes, aware of an IBAC
investigation, the Authority must take all
reasonable steps to ensure that the performance of
its functions or duties or the exercise of its powers
35 does not prejudice the IBAC investigation.
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(2) For the purposes of ensuring compliance with
subsection (1), the Authority may consult the
IBAC.
Division 13--Section 85 provisions
5 617 Supreme Court--limitation of jurisdiction--
conferral of exclusive jurisdiction
It is the intention of sections 264, 265 and 266 to
alter or vary section 85 of the Constitution Act
1975.
10 618 Supreme Court--limitation of jurisdiction--no
proceedings
It is the intention of sections 6(3), 78(3), 80(4),
83(8), 208, 227(1), 243(10), 313(4), 313(5), 354,
355, 356, 369(9), 426, 456, 458, 463(4), 577(7),
15 604(4) and 607(7) to alter or vary section 85 of
the Constitution Act 1975.
619 Proceedings
For the purposes of the sections of this Act
specified in section 618, proceedings includes--
20 (a) the inquiry into, hearing and determination
of any question or matter under this Act; and
(b) seeking the grant of any relief or remedy in
the nature of certiorari, prohibition,
mandamus or quo warranto, or the grant of a
25 declaration of right or an injunction; and
(c) seeking any order under the Administrative
Law Act 1978; and
(d) any other action or proceeding.
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Division 14--Regulations
620 Regulations
(1) The Governor in Council may make regulations
for or with respect to--
5 (a) prescribing forms; and
(b) prescribing fees; and
(c) any matter or thing required or permitted by
this Act, the Accident Compensation Act
1985 or the Workers Compensation Act
10 1958 to be prescribed or necessary to be
prescribed to give effect to this Act, the
Accident Compensation Act 1985 or the
Workers Compensation Act 1958.
(2) The regulations--
15 (a) may be of general or of specially limited
application; and
(b) may differ according to differences in time,
place or circumstance; and
(c) may confer a discretionary authority, or
20 impose a duty, on a specified person or body
or class of person or body; and
(d) may apply, adopt or incorporate, with or
without modification, any matter contained
in any document, code, standard, rule,
25 specification or method formulated, issued,
prescribed or published by any authority or
body as formulated, issued, prescribed or
published at the time the regulation is made
or at any time before the regulation is made;
30 and
(e) may make provision for or in relation to any
matter by applying, adopting or
incorporating, with or without modification,
the provisions of any Act of the
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Commonwealth or of any statutory rule or
other instrument made under an Act of the
Commonwealth, as in force at a particular
time or as in force from time to time; and
5 (f) may impose a penalty not exceeding
10 penalty units for a contravention of the
regulations.
(3) Sections 6 and 7 of the Subordinate Legislation
Act 1994 do not apply to the first regulations
10 made under this section.
621 Transitional regulations
(1) The Governor in Council may make regulations
containing provisions of a savings or transitional
nature consequent on the enactment of this Act
15 and the repeal of the Accident Compensation
(WorkCover Insurance) Act 1993.
(2) A provision mentioned in subsection (1) may be
retrospective in operation to 1 July 2014.
(3) Without limiting the generality of this section,
20 regulations under this section may provide for any
matter or thing relating to the continued operation,
application and effect of--
(a) the Accident Compensation Regulations
2012 as in force immediately before 1 July
25 2014; and
(b) any statutory instrument made under the
Accident Compensation Act 1985 and in
force immediately before 1 July 2014 which
is specified in the regulations; and
30 (c) any premiums order or other statutory
instrument made under the Accident
Compensation (WorkCover Insurance)
Act 1993 and in force immediately before
1 July 2014 which is specified in the
35 regulations.
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(4) Regulations made under this section have effect
despite anything to the contrary in any Act (other
than this Act or the Charter of Human Rights
and Responsibilities Act 2006) or in any
5 subordinate instrument.
(5) Sections 6 and 7 of the Subordinate Legislation
Act 1994 do not apply to any regulations made
under this section.
(6) This section expires on 1 July 2016.
10 Division 15--Savings, Repeal and Transitionals
622 Re-enacted provisions of Accident Compensation
Act 1985
(1) Without limiting the operation of any provisions
of the Interpretation of Legislation Act 1984
15 relating to repeal and re-enactment, the provisions
of this Act specified in column 1 of the Table to
this section are to be treated as re-enacting with or
without modifications the provisions of the
Accident Compensation Act 1985 specified in
20 column 2 of the Table to this section.
(2) For the purposes of this Act, a reference in any
document to a provision of the Accident
Compensation Act 1985 specified in column 2 of
the Table to this section is to be construed as a
25 reference to the corresponding provision of this
Act specified in column 1 of the Table to this
section.
(3) The Table to this section is not to be taken to be
an exhaustive list of the provisions of the
30 Accident Compensation Act 1985 re-enacted by
this Act.
(4) This section is to be construed subject to any
specific provision made in respect of the
application of this section in regulations made
35 under section 621.
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Part 13--General
s. 622
TABLE
Column 1 Column 2
Provision Provision of Accident Compensation
of this Act Act 1985
3 5(1)(1D)
4 5(1A)(3)
9 107A
16 101(1)
17 101(2)(3)(4)
18 102
20 103(2)(4)(4B)(4G)
21 103(4E)(4F)
22 103(4H)
23 103(4C)(4D)
25 105(1)(2)(3)
26 105(4)
27 112
29 106(3)(4)(5)
73 108
75 109
78 109AA
79 114I
80 114J
81 114K
82 114L
83 114M
84 114N
85 114O
86 114P
87 114Q
88 114R
571139B.I-17/9/2013 626 BILL LA INTRODUCTION 17/9/2013
Workplace Injury Rehabilitation and Compensation Bill 2013
Part 13--General
s. 622
Column 1 Column 2
Provision Provision of Accident Compensation
of this Act Act 1985
89 114S
90 114F
96 192, 194(1)
97 189
99 190
100 191
101 193
103 194(2)(3)(4)
104 195
105 196
106 197
107 198
108 198A
109 199
111 200
112 201
113 202
114 203
115 204
116 205
117 206
118 207
119 208
120 209
121 210
122 212
123 211
124 213
571139B.I-17/9/2013 627 BILL LA INTRODUCTION 17/9/2013
Workplace Injury Rehabilitation and Compensation Bill 2013
Part 13--General
s. 622
Column 1 Column 2
Provision Provision of Accident Compensation
of this Act Act 1985
125 213A
126 215
127 216
128 214B
129 217
130 218
131 219
132 220
133 221
134 222
135 223
136 224
137 225
138 226
139 227
140 228
141 229
142 230
143 231
144 232
145 233
146 234(1)
147 234(2)
148 235
149 236
150 236A
151 236B
167 111
571139B.I-17/9/2013 628 BILL LA INTRODUCTION 17/9/2013
Workplace Injury Rehabilitation and Compensation Bill 2013
Part 13--General
s. 622
Column 1 Column 2
Provision Provision of Accident Compensation
of this Act Act 1985
264 39
265 40
266 43(1)(1A)(1B)(4)
267 43(3)
268 61A
269 48A
270 65(3)
271 48(1)
272 48(2)(3)
273 49
274 45(1)(1A)(1B)(1C)(1D)
275 45(1E)(1F)(1G)(1H)
276 45(2)
277 45(4)
278 50(1)(2)(2A)(2B)(3)(4)(5)(6)(7)
279 50A
281 53
282 55(1)(2)(2A)
283 55(3)
284 56(6)
285 55AA
286 55AB
287 56(3)(4), 58A
288 56(5)
289 56(5A)(5B)
290 56(8)
291 56(9)(10)
292 56(11)
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Workplace Injury Rehabilitation and Compensation Bill 2013
Part 13--General
s. 622
Column 1 Column 2
Provision Provision of Accident Compensation
of this Act Act 1985
293 56(2)
294 57(1)(2)
295 58B
296 57(3)(4)(5)(6)
297 59(1)(2)(3)(5)(6)(7)(8)(9)(10)(b)
298 59(4)(10)(a)
299 60
300 61
301 62
302 67(1)(1A)
303 65(1)(2)(7)(8)(8A)(9)
304 65(6A)(6B)
306 65(5A)(5B)
307 65(5)
308 67(2)(3)
309 67(4)(5)
310 65(4)(4A)(11)
311 65(6)
312 65(5C)
313 68
314 91A
315 91B
316 91C
317 91D
372 139
373 139A
374 139B
375 140
571139B.I-17/9/2013 630 BILL LA INTRODUCTION 17/9/2013
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Part 13--General
s. 622
Column 1 Column 2
Provision Provision of Accident Compensation
of this Act Act 1985
376 141
377 141A
378 141B
379 142
380 142A
381 143
382 144
383 144A
384 145
385 145A
386 145B
387 145C
388 146
389 146A
390 35(2)
391 147
392 147A
393 148
394 149
395 150
397 150A
399 150B(1)(2)
400 150B(3)(4)(5)(6)
401 150C
402 150D
403 151
404 151A
405 151B
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Workplace Injury Rehabilitation and Compensation Bill 2013
Part 13--General
s. 622
Column 1 Column 2
Provision Provision of Accident Compensation
of this Act Act 1985
406 151C
407 151D
408 151E
409 152
410 153(1)(2)(3)(4)(5)
411 153(6)
412 155
413 164
414 165
415 166
416 167, 168
417 169
418 170
419 171(1)(4)
420 171(2)(3)
421 172(1)
422 172(1A)
423 172(2)(3)
424 173
425 174
426 175
427 176
428 177
491 18
492 19
493 20
494 20A, 20B
495 20C
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Part 13--General
s. 622
Column 1 Column 2
Provision Provision of Accident Compensation
of this Act Act 1985
496 20D
497 20E
498 25
499 22(1)(2)(5)
500 21
501 23
502 24(1)
503 24(2)
504 18(3)(4)
505 18(5)
506 26(2)(3)(4)
507 30
508 29
509 27
510 28
511 31
512 31A
513 32
514 33
515 33A
516 33B
517 34
518 34A
519 52A(1)(3)
520 52A(2)
521 52B
522 52C
523 52D
571139B.I-17/9/2013 633 BILL LA INTRODUCTION 17/9/2013
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Part 13--General
s. 622
Column 1 Column 2
Provision Provision of Accident Compensation
of this Act Act 1985
524 52G
525 52E
526 58
527 52F(1)
528 52F(2)(3)
529 56(1)
530 52FA
531 52H
532 52I(1A)
533 52I
534 52K
535 52L
536 52LA
537 63
538 64
539 63A
540 66
541 65(10)
548 237A
550 238
551 238A
552 239
553 240
554 241
555 239AAA
556 239AAB
557 239AAC
558 240A
571139B.I-17/9/2013 634 BILL LA INTRODUCTION 17/9/2013
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Part 13--General
s. 622
Column 1 Column 2
Provision Provision of Accident Compensation
of this Act Act 1985
559 179
560 180
561 181
562 182
563 183
564 184
565 185
566 186
567 188
568 249AA
569 249AB
570 249B
571 249BA
572 249BB
573 249BC
574 249C
575 242AA
576 242AB
577 242AC
578 242AD
579 242AE
580 242AF
581 248
582 248AA
583 248A
584 248AB
585 249
586 248B
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Part 13--General
s. 622
Column 1 Column 2
Provision Provision of Accident Compensation
of this Act Act 1985
587 248C
588 242A
589 250
590 239A
591 244A
592 245
593 246
594 247
595 243
596 248BA
597 248D
598 248E
599 249A
600 250A
601 250AA
602 250B
603 250C
604 251
605 251A
606 252(4A)
607 252AA
608 252
609 253AA
610 214A
611 253AB
612 252B
613 236C
614 236D
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Part 13--General
s. 623
Column 1 Column 2
Provision Provision of Accident Compensation
of this Act Act 1985
615 236E
616 236F
Sch 1 5(1B)(3A)(9A)(10)(11)(12)(13)(14), 5C,
5D, 5E and Division 3 of Part I
Sch 6 Sch 4
Sch 7 Sch 5
Sch 8 Sch 6
623 Repeal of Accident Compensation (WorkCover See:
Act No.
Insurance) Act 1993 50/1993.
Reprint No. 7
(1) The Accident Compensation (WorkCover as at
1 July 2011.
Insurance) Act 1993 is repealed. LawToday:
www.
5 (2) Except as in this Act or regulations made under legislation.
section 621 expressly provided, all persons, things vic.gov.au
and circumstances appointed or created by or
under the Accident Compensation (WorkCover
Insurance) Act 1993 or existing or continuing
10 under the Accident Compensation (WorkCover
Insurance) Act 1993 immediately before 1 July
2014 continue under and subject to this Act to
have the same status, operation and effect as they
respectively would have had in respect of any
15 premium paid or payable before 1 July 2014 if the
Accident Compensation (WorkCover
Insurance) Act 1993 had not been repealed.
(3) Without limiting the generality of subsection (2),
any action, matter or thing relating to any
20 premium to which subsection (2) applies,
including any review, appeal or other proceedings,
may be continued under the Accident
Compensation (WorkCover Insurance) Act
1993 as in force immediately before 1 July 2014.
571139B.I-17/9/2013 637 BILL LA INTRODUCTION 17/9/2013
Workplace Injury Rehabilitation and Compensation Bill 2013
Part 13--General
(4) For the purposes of this section, premium has the
same meaning as it has in section 32 of the
Accident Compensation (WorkCover
Insurance) Act 1993 as in force immediately
5 before 1 July 2014.
(5) Nothing in this section limits or otherwise affects
the operation of the Interpretation of Legislation
Act 1984.
__________________
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Part 14--Amendments and Repeals
s. 624
PART 14--AMENDMENTS AND REPEALS
Division 1--Accident Compensation Act 1985
624 Amendment of Part I
(1) For paragraph (d) of section 3 of the Accident See:
Act No.
5 Compensation Act 1985 substitute-- 10191.
Reprint No. 19
"(d) to ensure appropriate compensation under as at
11 February
this Act is paid to injured workers in the 2013
most socially and economically appropriate and
amending
manner, as expeditiously as possible;". Act Nos
76/2011,
10 (2) In sections 4(1)(a) and (3) of the Accident 9/2013,
Compensation Act 1985, after "appointed day" 30/2013 and
43/2013.
insert "but before 1 July 2014". LawToday:
www.
(3) After section 4(3) of the Accident Compensation legislation.
Act 1985 insert-- vic.gov.au
15 "(4) On and after 1 July 2014, a claim for
compensation under this Act must be given,
served or lodged in accordance with
section 20 of the Workplace Injury
Rehabilitation and Compensation Act
20 2013.
(5) This Act must be read and construed as one
with the Workplace Injury Rehabilitation
and Compensation Act 2013.".
(4) In section 4AA of the Accident Compensation
25 Act 1985, after "1958" insert "or has been paid or
is payable under the Workplace Injury
Rehabilitation and Compensation Act 2013.".
571139B.I-17/9/2013 639 BILL LA INTRODUCTION 17/9/2013
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Part 14--Amendments and Repeals
s. 625
625 Section 5 substituted--Definitions
For section 5 of the Accident Compensation Act
1985 substitute--
"5 Definitions
5 (1) In this Act--
appointed day means four o'clock in the
afternoon of the day before the
proclaimed day;
first entitlement period has the meaning
10 given by section 91E;
personal and household service means the
provision of one or more of the
following of a kind or type, and by a
person, approved by the Authority--
15 (a) attendant care;
(b) counselling;
(c) household help;
(d) transportation costs;
(e) at the request of a medical
20 practitioner, an aid, assistance,
appliance, apparatus or service,
other than a medical service,
hospital service or nursing
service--
25 and includes a rehabilitation service
provided under this Act as in force
before the commencement of section 80
of the Accident Compensation
(WorkCover Insurance) Act 1993;
30 prescribed means prescribed by regulations
made under the Workplace Injury
Rehabilitation and Compensation
Act 2013;
571139B.I-17/9/2013 640 BILL LA INTRODUCTION 17/9/2013
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Part 14--Amendments and Repeals
s. 626
proclaimed day means the day fixed under
section 2(2);
second entitlement period has the meaning
given by section 91E;
5 weekly payment means compensation in the
form of a weekly payment under
Division 2 of Part IV.
(2) Unless inconsistent with the context or subject-
matter--
10 (a) words and expressions defined in section 3
of the Workplace Injury Rehabilitation
and Compensation Act 2013 have the same
meaning in this Act as they have in that Act;
and
15 (b) section 4(1) and (2) and Schedule 1 of the
Workplace Injury Rehabilitation and
Compensation Act 2013 have effect as if
enacted in this Act.".
626 Amendment of sections 5, 5A, 5AB, 5AE, 8(5)
20 and 68
(1) In section 5(1) of the Accident Compensation
Act 1985, definition of medical service,
paragraph (b), after "artifical members," insert
"orthoses,".
25 (2) For section 5A(1)(a) of the Accident
Compensation Act 1985 substitute--
"(a) the average of the worker's ordinary earnings
during the relevant period (excluding from
that period any week during which the
30 worker did not actually work and--
(i) was on unpaid leave; or
(ii) was on paid leave at a rate less than the
base rate of pay)--
expressed as a weekly sum; and".
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Part 14--Amendments and Repeals
s. 626
(3) For section 5A(3)(d) of the Accident
Compensation Act 1985 substitute--
"(d) the average of the worker's ordinary earnings
while employed during the period of
5 78 weeks immediately before the injury
(excluding from that period any week during
which the worker did not actually work
and--
(i) was on unpaid leave; or
10 (ii) was on paid leave at a rate less than the
base rate of pay)--
whether or not the employer is the same
employer as at the time of the injury,
expressed as a weekly sum; and".
15 (4) For section 5AB(1)(a)(i) of the Accident
Compensation Act 1985 substitute--
"(i) the worker's earnings calculated at that rate
for ordinary hours in that week during which
the worker worked or was on paid leave at
20 the base rate of pay; and".
(5) For section 5AE(a)(ii) of the Accident
Compensation Act 1985 substitute--
"(ii) in any other case, the worker's average
weekly hours during the relevant period
25 (excluding from that period any week during
which the worker did not actually work and
was not on paid leave at the base rate of
pay);".
(6) For section 5AE(b)(ii) of the Accident
30 Compensation Act 1985 substitute--
"(ii) in any other case, the worker's average
weekly hours during the relevant period
(excluding from that period any week during
which the worker did not actually work and
571139B.I-17/9/2013 642 BILL LA INTRODUCTION 17/9/2013
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Part 14--Amendments and Repeals
s. 627
was not on paid leave at the base rate of
pay).".
(7) In section 8(5) of the Accident Compensation
Act 1985, in the definition of relevant period,
5 after "in relation to services provided" insert "on
or after 1 July 2010".
(8) After section 68(4) of the Accident
Compensation Act 1985 insert--
"(5) Proceedings must not be brought against the
10 Convenor, a Medical Panel or any of its
members in respect of any question as to the
adequacy of a statement of reasons given by
the Medical Panel, other than for the
purposes of seeking an order that further
15 reasons be given or that the reasons are
inadequate and warrant an inference that the
Medical Panel failed to exercise its powers in
accordance with the law.
(6) If, in proceedings seeking an order that a
20 Medical Panel give further reasons, the
Supreme Court makes such an order and the
order is not complied with, the Supreme
Court, in addition to, or in lieu of, making an
order to enforce compliance, may make any
25 order it might have made if there had been an
error of law in the statement of reasons.".
627 Repeal of sections 5C, 5D and 5E, Division 3 of
Part I and Parts II and III
(1) Sections 5C, 5D and 5E of the Accident
30 Compensation Act 1985 are repealed.
(2) Division 3 of Part I of the Accident
Compensation Act 1985 is repealed.
(3) Parts II and III of the Accident Compensation
Act 1985 are repealed.
571139B.I-17/9/2013 643 BILL LA INTRODUCTION 17/9/2013
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Part 14--Amendments and Repeals
s. 628
628 Part IV
(1) In section 88(2) of the Accident Compensation
Act 1985, for "Divisions 2 and 2A" substitute
"Divisions 2, 2A and 2B".
5 (2) In section 91E of the Accident Compensation
Act 1985--
(a) in the definition of deductible amount--
(i) omit "each other amount referred to in
section 5AB(1)(c) and";
10 (ii) for "being such other amount or"
substitute "being a";
(b) in the definition of serious injury, for
"30 per cent or more." substitute "30 per
cent or more;";
15 (c) insert the following definition--
"week, for the purposes of--
(a) paragraph (b) of the definition of
first entitlement period;
(b) the definition of second
20 entitlement period;
(c) the definition of enhancement
period;
(d) calculating a period of weeks
referred to in section 93CE, 114
25 (other than subsection (5A)(b),
(9A)(b)(ii) or (13)(c) or (e)), 116
or 117)--
means a week in respect of which any
amount of compensation in the form of
30 weekly payments or weekly payments
of pension or superannuation
contributions is paid or payable,
571139B.I-17/9/2013 644 BILL LA INTRODUCTION 17/9/2013
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Part 14--Amendments and Repeals
s. 628
whether for all or any part of that
week.".
(3) For section 92A(6) of the Accident
Compensation Act 1985 substitute--
5 "(6) If the worker leaves a dependent partner, or
dependent partners, and one, and only one,
dependent child, the amount of
compensation is $555 350 of which--
(a) $56 650 is payable to the dependent
10 child; and
(b) the balance--
(i) is payable to the dependent
partner; or
(ii) if there is more than one
15 dependent partner, is payable in
equal shares to each of the
dependent partners.".
(4) For section 92A(8B) of the Accident
Compensation Act 1985 substitute--
20 "(8B) In relation to a claim first received--
(a) on or after the day after the day on
which this Act receives the Royal
Assent; or
(b) before that day but not determined by
25 the court, the Authority or self-insurer
before that day--
if the worker leaves--
(c) one or more partially dependent
partners or;
571139B.I-17/9/2013 645 BILL LA INTRODUCTION 17/9/2013
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Part 14--Amendments and Repeals
s. 629
(d) one or more partially dependent
partners and one or more dependants,
whether dependent children or
dependent partners--
5 and none of subsections (4), (5), (6), (7), (8)
or (8A) apply, each such dependent is
entitled to the amount of compensation,
being a share of a sum not exceeding
$555 350, which the court, the Authority or
10 self-insurer considers is reasonable and
appropriate to the injury to that dependant.".
629 Amendment of section 92B
(1) In section 92B of the Accident Compensation
Act 1985 for subsection (11) substitute--
15 "(11) The total amount of weekly pensions payable
to the dependent partner, dependent partners
and the dependent child or dependent
children of a worker under--
(a) subsections (3)(b) and (7) or (8); or
20 (b) subsections (4)(b) and (7) or (8)--
must not exceed twice the State average
weekly earnings.".
(2) Section 92B(12) of the Accident Compensation
Act 1985 is repealed.
25 630 Further amendment of Part IV
(1) In the Accident Compensation Act 1985--
(a) in section 92D(1)(d), for "99(2)" substitute
"99AAA(2)";
(b) in section 93A(1)(a), after "work capacity"
30 insert "and no current weekly earnings";
(c) in section 93A(1)(b), after "work capacity"
insert "or has no current work capacity but
has current weekly earnings";
571139B.I-17/9/2013 646 BILL LA INTRODUCTION 17/9/2013
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Part 14--Amendments and Repeals
s. 630
(d) in section 93A(2)(a), after "work capacity"
insert "and no current weekly earnings";
(e) in section 93A(2)(b), after "work capacity"
insert "or has no current work capacity but
5 has current weekly earnings";
(f) in section 93A(3)(a), after "work capacity"
insert "and no current weekly earnings";
(g) in section 93A(3)(b), after "work capacity"
insert "or has no current work capacity but
10 has current weekly earnings";
(h) in section 93B(1)(b), after "work capacity"
insert "and has no current weekly earnings";
(i) in section 93B(1)(c), after "work capacity"
insert "or has no current work capacity but
15 has current weekly earnings";
(j) in section 93B(2)(a), after "work capacity"
insert "and no current weekly earnings";
(k) in section 93B(2)(b), after "work capacity"
insert "or has no current work capacity but
20 has current weekly earnings";
(l) in section 93B(3)(a), after "work capacity"
insert "and no current weekly earnings";
(m) in section 93B(3)(b), after "work capacity"
insert "or has no current work capacity but
25 has current weekly earnings".
(2) In section 93C(2) of the Accident Compensation
Act 1985, for paragraphs (b), (c) and (d)
substitute--
"(b) if the worker is a pre-12 November 1997
30 claimant who does not have a serious injury,
at the rate of--
(i) the difference between 80 per cent of
the worker's pre-injury average weekly
earnings and, if the worker has current
571139B.I-17/9/2013 647 BILL LA INTRODUCTION 17/9/2013
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s. 630
weekly earnings, 80 percent of those
current weekly earnings; or
(ii) the difference between $1210 and, if
the worker has current weekly earnings,
5 80 per cent of those current weekly
earnings--
whichever is the lesser;
(c) in the case of a claim for compensation in the
form of weekly payments first made in
10 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) the difference between 80 per cent of
the worker's pre-injury average weekly
15 earnings and, if the worker has current
weekly earnings, 80 per cent of those
earnings; or
(ii) the difference between $1510 and, if
the worker has current weekly earnings,
20 80 per cent of those current weekly
earnings--
whichever is the lesser;
(d) in the case of a claim for compensation in the
form of weekly payments first made in
25 respect of the injury to which the claim
relates on or after 5 April 2010 at the rate
of--
(i) the difference between 80 per cent of
the worker's pre-injury average weekly
30 earnings, less the deductible amount
and, if the worker has current weekly
earnings, 80 per cent of those earnings;
or
571139B.I-17/9/2013 648 BILL LA INTRODUCTION 17/9/2013
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Part 14--Amendments and Repeals
s. 630
(ii) the difference between twice the State
average weekly earnings and, if the
worker has current weekly earnings,
80 per cent of those current weekly
5 earnings--
whichever is the lesser.".
(3) In section 96(7) of the Accident Compensation
Act 1985, for the definition of supplemental
pension limit substitute--
10 "supplemental pension limit, in relation to a
worker, means the worker's pre-injury
average weekly earnings as calculated under
section 5A as indexed in accordance with
section 100(1) and calculated as if the period
15 of 52 weeks referred to in paragraph (a) of
the definition of enhancement period in
section 5AD had not expired.".
(4) For section 98C(8) of the Accident
Compensation Act 1985 substitute--
20 "(8) If a worker suffers an injury which entitles
the worker to compensation for non-
economic loss of more than one kind as
specified in subsection (2), (3) or (4), the
worker is not entitled to receive as
25 compensation for non-economic loss under
this section more than $555 350.".
(5) In section 98DA of the Accident Compensation
Act 1985--
(a) after "98E" insert "of this Act";
30 (b) after "Act 1958" insert "or under Division 5
of Part 5 of the Workplace Injury
Rehabilitation and Compensation Act
2013".
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s. 630
(6) In section 99AAA(1) of the Accident
Compensation Act 1985, in the definition of
supported accommodation, for paragraphs (b) and
(c) substitute--
5 "(b) a supported residential service within the
meaning of the Supported Residential
Services (Private Proprietors) Act 2010;
(c) a group home within the meaning of
section 3(1) of the Disability Act 2006;".
10 (7) In section 99 of the Accident Compensation Act
1985--
(a) in subsection (6), for "this section"
substitute "this Division";
(b) in subsection (10), for "this section"
15 substitute "this Division".
(8) In section 99 of the Accident Compensation Act
1985, for subsections (15) and (16) substitute--
"(15) The contribution to be made by a worker
towards the cost of supported
20 accommodation referred to in paragraph (b)
or (d) of the definition of supported
accommodation must not exceed $32.50
per day.
(16) The Governor in Council may, on the
25 recommendation of the Authority, by Order
published in the Government Gazette,
declare that section 100C does not apply to
an amount referred to in subsection (15) of
this section in respect of a specified financial
30 year.".
(9) In section 99AD of the Accident Compensation
Act 1985--
(a) in subsection (4), for "under this section"
substitute "under this Division";
571139B.I-17/9/2013 650 BILL LA INTRODUCTION 17/9/2013
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Part 14--Amendments and Repeals
s. 631
(b) in subsection (5)(a)(i), for "99" substitute
"99AAA, 99, 99AA, 99AB, 99AC or this
section";
(c) in subsection (5)(c), for "the service
5 provided under section 99(1)" substitute
"a service referred to in this Division".
(10) In the Table to section 100B of the Accident
Compensation Act 1985, after item 19 insert--
"19A Section $151 1 July
93CDA(1)(d) 2011".
(11) In the Table to section 100C of the Accident
10 Compensation Act 1985, for item 5 substitute--
"5 Section 92A(6) $511 920 1 July
2011
5A Section 92A(6) $51 190 1 July
2011".
631 Sections 100 to 100C substituted
For sections 100, 100A, 100B and 100C of the
Accident Compensation Act 1985 substitute--
"100 Indexation--weekly payments
15 (1) Subject to this section, the amount of a
weekly payment to a worker in respect of an
injury under this Part must be varied, in
respect of each year beginning on the
anniversary of the day on which the worker
20 became entitled to weekly payments in
respect of that injury, by varying the amount
of the worker's pre-injury average weekly
earnings for the purposes of the calculation
of the amount of the weekly payment in
25 accordance with the formula--
B
A×
C
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where--
A is the amount of the worker's pre-injury
average weekly earnings within the
meaning of Division 2 of Part I or, if
5 that amount has been varied in
accordance with this section as in force
for the time being, that amount as last
so varied;
B is the average weekly total earnings of
10 all employees in Victoria in original
terms for the most recent reference
period published by the Australian
Bureau of Statistics as at the 15th day
of the month preceding the month in
15 which the date on which the variation is
made falls;
C is the average weekly total earnings of
all employees in Victoria in original
terms for the corresponding reference
20 period one year earlier than the
reference period referred to in B
published by the Australian Bureau of
Statistics as at the 15th day of the same
month referred to in B.
25 (2) A variation of an amount of a worker's pre-
injury average weekly earnings under this
section does not take effect to the extent
(if any) to which it increases that amount to
more than 100 per cent of the worker's
30 ordinary earnings (calculated in accordance
with Division 2 of Part I) expressed as a
weekly sum to which the worker would be
entitled if he or she were employed in the
same position or positions (if it or they can
35 be identified) as he or she was employed in
immediately before the injury, being the
position or positions on the basis of which
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the calculation of the worker's pre-injury
average weekly earnings was made.
(3) In the case of a worker who became entitled
to weekly payments before the
5 commencement of section 10 of the
Accident Compensation (General
Amendment) Act 1989, the anniversary of
the day on which the worker became so
entitled is deemed, for the purposes of this
10 section, to be 1 July.
100A Indexation of weekly pensions for
dependants of a worker who dies
(1) Subject to subsection (2), the amount of any
compensation in the form of weekly
15 payments of pension payable under
section 92B to a deceased worker's
dependants must be varied--
(a) on 1 July 2014 in respect of the
financial year commencing on that
20 date; and
(b) on 1 July in each subsequent year in
respect of the financial year
commencing on that date--
by varying the amount of the worker's pre-
25 injury average weekly earnings for the
purposes of the calculation of the amount of
the weekly pension in accordance with the
formula--
B
A×
C
30 where--
A is the amount of the worker's pre-injury
average weekly earnings within the
meaning of Division 2 of Part I or, if
that amount has been varied in
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accordance with this section as in force
for the time being, that amount as last
so varied;
B is the average weekly total earnings of
5 all employees in Victoria in original
terms for the most recent reference
period in the preceding calendar year
published by the Australian Bureau of
Statistics as at 15 June immediately
10 preceding the date on which the
variation is made;
C is the average weekly total earnings of
all employees in Victoria in original
terms for the corresponding reference
15 period in the calendar year preceding
the calendar year referred to in B
published by the Australian Bureau of
Statistics as at 15 June immediately
preceding the date on which the
20 variation is made.
(2) 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 deceased worker died more than one year
25 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
section 92B must be varied on the
30 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
purposes of the calculation of the amount of
35 the weekly pension in accordance with the
formula--
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E
D×
F
where--
D is the amount of the worker's pre-injury
average weekly earnings within the
5 meaning of Division 2 of Part I or, if
that amount has been varied in
accordance with this section, that
amount as last so varied;
E is the average weekly total earnings of
10 all employees in Victoria in original
terms for the most recent reference
period published by the Australian
Bureau of Statistics as at the 15th day
of the month preceding the month in
15 which the date on which the variation is
made falls;
F is the average weekly total earnings of
all employees for Victoria in original
terms for the corresponding reference
20 period one year earlier than the
reference period referred to in E
published by the Australian Bureau of
Statistics as at the 15th day of the same
month referred to in E.
25 100B Indexation of certain amounts--according
to average weekly earnings
An amount specified in column 2 of the
Table to this section must be varied, in
respect of the financial year beginning on
30 1 July 2014 and each subsequent financial
year, in accordance with the formula--
B
A×
C
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where--
A is the amount specified in column 2 of
that item or, if that amount has been
varied in accordance with this section
5 as in force for the time being, that
amount as last so varied;
B is the average weekly total earnings of
all employees in Victoria in original
terms for the most recent reference
10 period in the preceding calendar year
published by the Australian Bureau of
Statistics as at 15 June immediately
preceding the date on which the
variation is made;
15 C is the average weekly total earnings of
all employees in Victoria in original
terms for the corresponding reference
period in the calendar year preceding
the calendar year referred to in B
20 published by the Australian Bureau of
Statistics as at 15 June immediately
preceding the date on which the
variation is made.
TABLE
Column 1 Column 2
Item Amount
1 Section 93A(1)(a)(ii)--$1210
2 Section 93A(1)(b)(ii)--$1210
3 Section 93A(2)(a)(ii)--$1510
4 Section 93A(2)(b)(ii)--$1510
5 Section 93B(1)(a)(ii)--$1210
6 Section 93B(1)(b)(ii)--$1210
7 Section 93B(1)(c)(ii)--$1210
8 Section 93B(2)(a)(ii)--$1510
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Column 1 Column 2
Item Amount
9 Section 93B(2)(b)(ii)--$1510
10 Section 93C(2)(a)(ii)--$1510
11 Section 93C(2)(b)(ii)--$1210
12 Section 93C(2)(c)(ii)--$1510
13 Section 93CA(1)(c)--$177
14 Section 93CD(4)(a)--$177
15 Section 93CD(5)(a)(ii)--$1210
16 Section 93CD(5)(b)(ii)--$1510
17 Section 93CDA(1)(d)--$155
18 Section 129B(7)--$14 990
19 Section 135A(7)(a)(i)--$59 670
20 Section 135A(7)(a)(ii)--
$1 343 540
21 Section 135C(2)--$886 330
22 Schedule 1A, item 11--$1210
100C Indexation of certain amounts--consumer
price index
Subject to section 99(16), an amount in
dollars specified in column 2 of an item in
5 the Table to this section must be varied, in
respect of the financial year beginning on
1 July 2014 and each subsequent financial
year, in accordance with the formula--
B
A×
C
10 where--
A is the amount specified in column 2 of
that item or, if that amount has been
varied in accordance with this section,
that amount as last so varied;
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B is the all groups consumer price index
for Melbourne for the most recent
reference period in the preceding
calendar year most recently published
5 by the Australian Bureau of Statistics as
at 15 June immediately preceding the
date on which the variation is made;
C is the all groups consumer price index
for Melbourne for the corresponding
10 reference period one year earlier than
the reference period referred to in B
published by the Australian Bureau of
Statistics as at 15 June immediately
preceding the date on which the
15 variation is made.
TABLE
Column 1 Column 2
Item Amount
1 Section 62(3)--$56
2 Section 62(4)--$386
3 Section 92A(4)--$555 350
4 Section 92A(5)--$555 350
5 Section 92A(6)(a)--$499 810
6 Section 92A(6)(b)--$55 530
7 Section 92A(7)--$555 350
8 Section 92A(7)(a)--$27 770
9 Section 92A(8)--$555 350
10 Section 92A(8)(a)--$416 520
11 Section 92A(8)(b)--$138 840
12 Section 92A(8A)--$555 350
13 Section 92A(8B)--$555 350
14 Section 92A(9)--$555 350
15 Section 92AA--$33 120
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Column 1 Column 2
Item Amount
16 Section 92D(1)(b)--$8270
17 Section 98C(2)(b)(i)--$11 670 and
$9940
18 Section 98C(2)(b)(ii)--$11 670 and
$9940
19 Section 98C(2)(c)(i)--$18 810 and
$2830
20 Section 98C(2)(c)(ii)(A)--$18 810
and $2830
21 Section 98C(2)(c)(ii)(B)--$18 810
and $2830
22 Section 98C(2)(d)--$75 260 and
$4700
23 Section 98C(2)(e)(i)--$262 070 and
$29 330
24 Section 98C(2)(e)(ii)--$555 350
25 Section 98C(2)(f)--$555 350
26 Section 98C(3)(b)--$18 810 and
$2830
27 Section 98C(3)(c)--$75 260 and
$4700
28 Section 98C(3)(d)(i)--$262 070 and
$29 330
29 Section 98C(3)(d)(ii)--$555 350
30 Section 98C(3)(e)--$555 350
31 Section 98C(3A)(a)--$2830 and
$1860
32 Section 98C(3A)(b)--$2830
33 Section 98C(3A)(c)--$4700, $2830
and $1860
34 Section 98C(3A)(d)--$4700 and
$2830
35 Section 98C(3A)(e)--$4700
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Column 1 Column 2
Item Amount
36 Section 98C(4)--$67 660
37 Section 98C(7)--$555 350
38 Section 98C(8)--$555 350
39 Section 98E(5)--$273 640
40 Section 99(1)(b)--$5870
41 Section 99(5)--$642
42 Section 99(15)--$32.50
43 Section 125(1)(a)(iii)--$642
44 Section 125A(3)(c)--$642
45 Section 134AB(22)(a)(i)--$56 650
46 Section 134AB(22)(a)(ii)--
$1 275 570
47 Section 134AB(22)(b)(i)--$54 730
48 Section 134AB(22)(b)(ii)--$555 350
49 Section 135A(7)(b)(i)--$50 680
50 Section 135A(7)(b)(ii)--$514 360
51 Schedule 3B No disadvantage--
Compensation Table: each amount
specified in the Table.
".
632 Dollar amounts as at 1 July 2013--benefits
In the Accident Compensation Act 1985--
(a) in section 62(3), for "$51" substitute "$56";
5 (b) in section 62(4), for "$356" substitute
"$386";
(c) in section 92A(4) and (5), for "$511 920"
substitute "$555 350";
(d) in section 92A(6)(a), for "$460 730"
10 substitute "$499 810";
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(e) in section 92A(6)(b), for "$51 190"
substitute "$55 530";
(f) in section 92A(7), for "$511 920" substitute
"$555 350";
5 (g) in section 92A(7)(a), for "$25 600"
substitute "$27 770";
(h) in section 92A(8), for "$511 920" substitute
"$555 350";
(i) in section 92A(8)(a), for "$383 940"
10 substitute "$416 520";
(j) in section 92A(8)(b), for "$127 980"
substitute "$138 840";
(k) in section 92A(8A), (8B) and (9), for
"$511 920" substitute "$555 350";
15 (l) in section 92AA(1), in the definition of
maximum amount, for "$30 530" substitute
"$33 120";
(m) in section 92D(1)(b), for "$7630" substitute
"$8270";
20 (n) in section 93A(1)(a)(ii) and (b)(ii), for
"$1070" substitute "$1210";
(o) in section 93A(2)(a)(ii) and (b)(ii), for
"$1330" substitute "$1510";
(p) in section 93B(1)(a)(ii), (b)(ii) and (c)(ii), for
25 "$1070" substitute "$1210";
(q) in section 93B(2)(a)(ii) and (b)(ii), for
"$1330" substitute "$1510";
(r) in section 93C(2)(a)(ii) and (b)(ii), for
"$1070" substitute "$1510";
30 (s) in section 93C(2)(c)(ii), for "$1330"
substitute "$1510";
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(t) in section 93CA(1)(c), for "$155" substitute
"$177";
(u) in section 93CD(4)(a), for "$155" substitute
"$177";
5 (v) in section 93CD(5)(a)(ii), for "$1070"
substitute "$1210";
(w) in section 93CD(5)(b)(ii), for "$1330"
substitute "$1510";
(x) in section 93CDA(1)(d), for "$151"
10 substitute "$177";
(y) in section 98C(2)(b)(i) and (ii)--
(i) for "$10 760" substitute "$11 670";
(ii) for "$9170" substitute "$9940";
(z) in section 98C(2)(c)(i)--
15 (i) for "$17 340" substitute "$18 810";
(ii) for "$2610" substitute "$2830";
(za) in section 98C(2)(c)(ii)(A) and (B)--
(i) for "$17 340" substitute "$18 810";
(ii) for "$2610" substitute "$2830";
20 (zb) in section 98C(2)(d)--
(i) for "$69 370" substitute "$75 260";
(ii) for "$4330" substitute "$4700";
(zc) in section 98C(2)(e)(i)--
(i) for "$241 580" substitute "$262 070";
25 (ii) for "$27 040" substitute "$29 330";
(zd) in section 98C(2)(e)(ii) and (f), for
"$511 920" substitute "$555 350";
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(ze) in section 98C(3)(b)--
(i) for "$17 340" substitute "$18 810";
(ii) for "$2610" substitute "$2830";
(zf) in section 98C(3)(c)--
5 (i) for "$69 370" substitute "$75 260";
(ii) for "$4330" substitute "$4700";
(zg) in section 98C(3)(d)(i)--
(i) for "$241 580" substitute "$262 070";
(ii) for "$27 040" substitute "$29 330";
10 (zh) in section 98C(3)(d)(ii) and (e), for
"$511 920" substitute "$555 350";
(zi) in section 98C(3A)(a)--
(i) for "$2610" substitute "$2830";
(ii) for "$1720" substitute "$1860";
15 (zj) in section 98C(3A)(b), for "$2610"
substitute "$2830";
(zk) in section 98C(3A)(c)--
(i) for "$4330" substitute "$4700";
(ii) for "$2610" substitute "$2830";
20 (iii) for "$1720" substitute "$1860";
(zl) in section 98C(3A)(d)--
(i) for "$4330" substitute "$4700";
(ii) for "$2610" substitute "$2830";
(zm) in section 98C(3A)(e), for "$4330"
25 substitute "$4700";
(zn) in section 98C(4), for "$62 370" substitute
"$67 660";
(zo) in section 98C(7) and (8), for "$511 920"
substitute "$555 350".
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633 Dollar amounts as at 1 July 2013--payment,
contributions etc.
In the Accident Compensation Act 1985--
(a) in section 125(1)(a)(iii), for "$592"
5 substitute "$642";
(b) in section 125A(3)(c), for "$592" substitute
"$642";
(c) in section 129B(7), for "$13 220" substitute
"$14 990";
10 (d) in section 134AB(22)(a)(i), for "$52 220"
substitute "$56 650";
(e) in section 134AB(22)(a)(ii), for
"$1 175 820" substitute "$1 275 570";
(f) in section 134AB(22)(b)(i), for "$50 440"
15 substitute "$54 730";
(g) in section 134AB(22)(b)(ii), for "$511 920"
substitute "$555 350";
(h) in section 135A(7)(a)(i), for "$52 610"
substitute "$59 670";
20 (i) in section 135A(7)(a)(ii), for "$1 184 600"
substitute "$1 343 540";
(j) in section 135A(7)(b)(i), for "$46 720"
substitute "$50 680";
(k) in section 135A(7)(b)(ii), for "$474 140"
25 substitute "$514 360";
(l) in section 135C(2), for "$781 480"
substitute "$886 330";
(m) in item 11(b) of Schedule 1A, for "$1070"
substitute "$1210".
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634 Amendment of sections 101, 102 and 103
(1) Sections 101 and 102 of the Accident
Compensation Act 1985 are repealed.
(2) Before section 103(1) of the Accident
5 Compensation Act 1985 insert--
"(1A) This section applies to a claim for
compensation under section 98 or 98A in
respect of an injury that arose before
12 November 1997.".
10 (3) In section 103 of the Accident Compensation
Act 1985, subsections (2), (4), (4B), (4C), (4D),
(4E), (4F), (4G) and (4H) are repealed.
(4) In section 103 of the Accident Compensation
Act 1985, for subsection (7) substitute--
15 "(7) Subject to subsection (8), a claim for
compensation under section 98A must be
given, served or lodged under this section or
section 106 at the same time as the claim for
compensation under section 98 in respect of
20 the same injury is given, served or lodged.".
635 Amendment of sections 104B to 118
(1) In section 104B of the Accident Compensation
Act 1985--
(a) in subsection (1), for "this section applies"
25 substitute "this section, and section 6(1) and
Divisions 1 and 2 of Part 2 of the
Workplace Injury Rehabilitation and
Compensation Act 2013 apply";
(b) in subsection (1D)(a), after "medical" insert
30 "or other";
(c) in subsection (1E)(a), after "medical" insert
"or other".
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(2) Sections 105, 106(3), (4) and (5), 107A, 108,109,
109AA, 111 and 112 of the Accident
Compensation Act 1985 are repealed.
(3) In section 114(2)(c)(iii) of the Accident
5 Compensation Act 1985, for "earnings."
substitute "earnings; or".
(4) After section 114(2)(c)(iii) of the Accident
Compensation Act 1985 insert--
"(iv) an amount referred to in section 155(1)(c) of
10 the Workplace Injury Rehabilitation and
Compensation Act 2013 is varied or no
longer paid; or
(v) a non-pecuniary benefit within the meaning
of section 155(1)(d) of the Workplace
15 Injury Rehabilitation and Compensation
Act 2013 is varied or no longer paid.".
(5) For section 114D(2) of the Accident
Compensation Act 1985 substitute--
"(2) If--
20 (a) an employer is notified by the
Authority that a worker is entitled to
weekly payments; or
(b) a self-insurer determines that a worker
is entitled to weekly payments--
25 the employer or the self-insurer, as the case
may be, must make weekly payments to the
worker in accordance with subsection (1).
Penalty: In the case of a natural person,
60 penalty units;
30 In the case of a body corporate,
300 penalty units.
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(2A) A self-insurer--
(a) to which a direction or determination
under section 114C(1) to pay weekly
payments applies, must commence
5 payment within 7 days after the
direction or determination is made; or
(b) which accepts a claim under section
114C(3) to make weekly payments to a
worker and there are any outstanding
10 payments of weekly payments, must
pay those outstanding weekly payments
to the worker within 7 days after
accepting the claim.
Penalty: 300 penalty units.".
15 (6) In section 114D of the Accident Compensation
Act 1985, subsections (7) and (8) are repealed.
(7) Sections 114H to 114S of the Accident
Compensation Act 1985 are repealed.
(8) In section 118(b) of the Accident
20 Compensation Act 1985, for "section 99"
substitute "Division 2B of Part IV".
636 New section 123B substituted
For section 123B of the Accident Compensation
Act 1985 substitute--
25 "123B Prohibition on recovery of certain costs
A person must not recover any costs in
respect of assisting a person to make, lodge
or forward any application or claim for
compensation under this Act.".
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637 Amendment of sections 124, 125 and 125A
(1) At the end of section 124 of the Accident
Compensation Act 1985 insert--
"(2) This Division does not apply to the liability
5 to pay compensation in respect of an injury
arising out of or in the course of any
employment on or after 1 July 2014.".
(2) In section 125(1)(a) of the Accident
Compensation Act 1985, for "the amount which
10 is twice the exemption limit within the meaning of
section 180" substitute "the exemption limit
within the meaning of section 3 of the Workplace
Injury Rehabilitation and Compensation Act
2013".
15 (3) In section 125A(3B) of the Accident
Compensation Act 1985 for "section 114N(1)(b)"
substitute "section 84(1)(b) of the Workplace
Injury Rehabilitation and Compensation Act
2013".
20 (4) In section 125A(8) of the Accident
Compensation Act 1985, for "worker referred to
in paragraph (d) or (e) of the definition of worker"
substitute "student worker".
638 Further amendment of Part IV
25 (1) In the heading to Division 8A of Part IV of the
Accident Compensation Act 1985 after "1999"
insert "but before 1 July 2014".
(2) In section 134AA of the Accident Compensation
Act 1985 after "1999" insert "but before 1 July
30 2014".
(3) In section 134AB(1) and (2) of the Accident
Compensation Act 1985 after "1999" insert
"but before 1 July 2014".
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(4) In section 134AB(38)(e)(i) and (ii) of the
Accident Compensation Act 1985, for
"section 5A(7)" substitute "Schedule 1A".
(5) In section 134ABA(a)(i) of the Accident
5 Compensation Act 1985, after "section 104B(2)"
insert "or (7)".
(6) Sections 135B and 135D of the Accident
Compensation Act 1985 are repealed.
(7) In section 137(5B)(a) of the Accident
10 Compensation Act 1985, for "143A" substitute
"147A".
(8) In section 138B(3) of the Accident
Compensation Act 1985 for "any or all of
sections 99(1)(aa), 99(1)(b) and 92A" substitute
15 "section 99(1)(b), 99(1)(c) or 92A".
639 Parts V, VIA, VIIA and VIIB
Parts V, VIA, VIIA and VIIB of the Accident
Compensation Act 1985 are repealed.
640 Part VIII
20 (1) Part VIII, other the heading to Part VIII and
sections 252H, 252I and 252P, of the Accident
Compensation Act 1985 is repealed.
(2) After section 252P of the Accident
Compensation Act 1985 insert--
25 "(2) It is the intention of section 68(5), as inserted
by section 626(8) of the Workplace Injury
Rehabilitation and Compensation Act
2013, to alter or vary section 85 of the
Constitution Act 1975.".
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641 Part IX, section 313 substituted
For section 313 of the Accident Compensation
Act 1985 substitute--
"313 Section 93CD
5 (1) Despite section 4A--
(a) section 93CD, except subsection (5), as
substituted by section 34 of the
amending Act, applies in respect of an
injury occurring on or after the
10 commencement date;
(b) section 93CD, except subsection (5), as
in force immediately before the
commencement of section 34 of the
amending Act, applies in respect of an
15 injury occurring before the
commencement date.
(2) Section 93CD(5), as substituted by
section 34 of the amending Act, applies in
relation to an entitlement period beginning
20 on or after 5 April 2010.".
642 Part IX, new section 352A inserted
After section 352 of the Accident Compensation
Act 1985 insert--
"352A Retrospective operation of certain
25 instruments of delegation
(1) The instrument of delegation executed by the
Authority on 20 April 2011 in respect of
Brickworks Limited (ACN 000 028 526),
which became a self-insurer on 30 April
30 2004 and assumed liability for the claims of
Bristle Limited is to be taken to have had
effect from 4 p.m. on 11 May 2001.
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(2) The instrument of delegation executed by the
Authority on 20 April 2011 in respect of
Building Supplies Group Holdings Pty
Limited (ACN 121 366 041), which became
5 a self-insurer at 4 p.m. on 5 November 2010
and assumed liability for the claims of Carter
Holt Harvey Australia Pty Limited is to be
taken to have had effect from 4 p.m. on
5 November 1999.
10 (3) The instrument of delegation executed by the
Authority on 20 April 2011 in respect of
Brambles Limited (ACN 118 896 021),
which became a self-insurer at 4 p.m. on
5 November 2010 and assumed liability for
15 the claims of Brambles Industries Bristle
Limited is to be taken to have had effect
from 4 p.m. on 5 November 1999.
(4) Each instrument of delegation has effect
from the purported date by virtue of this
20 section.".
643 Part IX, new section 368A inserted
After section 368 of the Accident Compensation
Act 1985, insert--
"368A Section 91(3AAA)
25 Section 91(3AAA), as inserted by
section 88(2) of the amending Act, applies to
assessments of deafness made on or after
1 November 2010 for the purposes of
assessing the degree or impairment in
30 relation to a claim made before, on or after
that date.".
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644 Savings and Transitional
After Division 14 of Part IX of the Accident
Compensation Act 1985 insert--
"Division 15--Workplace Injury Rehabilitation
5 and Compensation Act 2013
391 Workplace Injury Rehabilitation and
Compensation Act 2013
(1) Except as in the Workplace Injury
Rehabilitation and Compensation Act
10 2013 or regulations made under section 621
of that Act expressly provided, all persons,
things and circumstances appointed or
created by or under this Act or existing or
continuing under this Act immediately
15 before 1 July 2014 continue under and
subject to the Workplace Injury
Rehabilitation and Compensation Act
2013 to have the same status, operation and
effect as they respectively would have had if
20 that Act had not been enacted.
(2) Nothing in this section limits or otherwise
affects the operation of the Interpretation of
Legislation Act 1984.".
645 Repeal of spent provisions
25 Sections 268, 269, 271, 277, 278, 306, 307, 308,
309, 310, 311, 318, 322, 323, 324, 334, 335, 336,
337, 338, 339, 340, 341, 342, 343, 344, 345, 346,
350, 351, 353, 354, 355, 356, 357, 358, 359, 360,
361, 362, 363, 364, 376, 377, 379, 380, 381, 383,
30 384, 385, 386 and 387 of the Accident
Compensation Act 1985 are repealed.
646 Schedules
Schedules 4, 5 and 6 of the Accident
Compensation Act 1985 are repealed.
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Division 2--Accident Compensation (WorkCover
Insurance) Act 1993
647 Amendment of section 87 of Accident Compensation
(WorkCover Insurance) Act 1993
5 For section 87 of the Accident Compensation
(WorkCover Insurance) Act 1993 substitute--
"87 Part 2A (Premium review)
Part 2A, as inserted by section 114 of the
amending Act, applies to notices specified in
10 section 33, whether issued before, on or after
1 July 2014, in respect of a policy period
ending at 4 p.m. on 30 June in 2011, 2012,
2013 or 2014.".
Division 3--Amendment of other Acts
15 648 Workers Compensation Act 1958 See:
Act No.
(1) In section 1A(3) of the Workers Compensation 6419.
Act 1958, after "Act 1985" insert "and the Reprint No. 15
as at
Workplace Injury Rehabilitation and 5 August 2006
Compensation Act 2013". and
amending
20 (2) In section 3(1) of the Workers Compensation Act Nos
97/2005,
Act 1958-- 69/2009,
13/2010 and
(a) omit the definition of Commission; 29/2011.
LawToday:
(b) for the definition of Fund substitute-- www.
legislation.
vic.gov.au
"Fund means the WorkCover Authority
25 Fund under the Workplace Injury
Rehabilitation and Compensation
Act 2013.".
(3) In section 9(5) of the Workers Compensation
Act 1958, for the definition of average weekly
30 earnings substitute--
"average weekly earnings, in relation to
compensation payable in a financial year,
means the average weekly total earnings of
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all male employees in Victoria in original
terms published by the Australian Bureau of
Statistics as at 15 June in the preceding
financial year in respect of the most recent
5 reference period ending on or before
31 December in that preceding financial
year;".
649 Amendment of Acts specified in Schedule 9
An Act specified in the heading to an item in
10 Schedule 9 is amended as set out in that item.
Division 4--Repeal of Part 14 and Schedule 9
650 Repeal of Part 14 and Schedule 9
This Part and Schedule 9 are repealed on 1 July
2015.
15 Note
The repeal of this Part and Schedule 9 does not affect the
continuing operation of the amendments made by this Part or
Schedule 9 (see section 15(1) of the Interpretation of Legislation
Act 1984.
__________________
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SCHEDULES
SCHEDULE 1
FURTHER INTERPRETATIVE PROVISIONS
PART 1--PERSONS DEEMED TO BE WORKERS OR
5 EMPLOYERS
Section 4(3)
1 Students etc. deemed to be workers and their
deemed employers
(1) Each of the following is deemed to be a worker to
10 the extent specified--
(a) a student at a school within the meaning of
Division 1 of Part 5.4 of the Education and
Training Reform Act 2006 while employed
under a work experience arrangement or a
15 structured workplace learning arrangement
under that Part;
(b) a student who is in an accredited senior
secondary course (within the meaning of
section 4.1.1 of the Education and Training
20 Reform Act 2006)--
(i) at a TAFE institute or a university with
a TAFE division; or
(ii) provided by a person or body registered
under section 4.3.10 of that Act with
25 respect to that course--
while employed under a work experience
arrangement or a structured workplace
learning arrangement under Part 5.4 of that
Act;
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(c) a student employed under an agreement or
arrangement referred to in section 6.1.21 of
the Education and Training Reform Act
2006, while so employed;
5 (d) a post-secondary student of a TAFE provider
within the meaning of Division 2 of Part 5.4
of the Education and Training Reform Act
2006 while employed under a practical
placement agreement under that Part;
10 (e) a student employed under an agreement or
arrangement referred to in section 6.1.23,
6.1.24 or 6.1.25 of the Education and
Training Reform Act 2006, while so
employed;
15 (f) an apprentice--
(i) within the meaning of the Education
and Training Reform Act 2006 while
employed under an approved training
scheme within the meaning of Part 5.5
20 of that Act; or
(ii) employed under a contract of
apprenticeship, while so employed;
(g) a person who is a participant in a declared
training program, while so participating.
25 (2) In relation to--
(a) a student who is deemed to be a worker
under subclause (1)(a), (b), (c), (d) or (e)--
(i) the Department of Education and Early
Childhood Development is deemed to
30 be the employer of that student in
respect of the employment under the
arrangement or agreement; and
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(ii) the amount paid or payable to the
student for services rendered under the
agreement or arrangement is deemed to
be remuneration;
5 (b) an apprentice referred to in subclause
(1)(f)--
(i) the person who enters into the approved
training scheme or contract of
apprenticeship with the apprentice is
10 deemed to be the employer of the
apprentice; and
(ii) the amount paid or payable to the
apprentice under the approved training
scheme or contract of apprenticeship is
15 deemed to be remuneration;
(c) a person referred to in subclause (1)(g), the
provider of the declared training program is
deemed to be the employer of that person.
2 Declared training programs
20 (1) The Governor in Council may, by Order in
Council published in the Government Gazette,
declare a training program provided by a person
or body specified in the Order in Council that
includes the provision of workplace based training
25 to be a declared training program.
(2) The Governor in Council may, by Order in
Council published in the Government Gazette,
specify, in relation to a declared training
program--
30 (a) a class of payments; or
(b) a training allowance--
payable to participants in that declared training
program.
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(3) A payment of a class or a training allowance,
specified in an Order in Council under subclause
(2) is deemed to be remuneration paid or payable
in respect of a participant in the training program
5 to which that Order in Council applies.
3 Persons attending certain employment programs
deemed to be workers
If a person (not being a worker within the
meaning of any other provision of this Part) is
10 injured while attending an employment program
provided or arranged by the Authority--
(a) for the purposes of this Act--
(i) the person is deemed to be a worker;
and
15 (ii) the Authority is deemed to be the
employer of the person; and
(b) for the purposes of Divisions 1 and 2 of
Part 5, the person's pre-injury average
weekly earnings are deemed to be the pre-
20 injury average weekly earnings of the person
as calculated for the purposes of this Act in
relation to the injury suffered by that person
by reason of which the person is attending
the employment program as indexed in
25 accordance with this Act.
4 Co-operatives--deemed workers and employers
(1) A person--
(a) who is a secretary of a co-operative housing
society within the meaning of the
30 Co-operative Housing Societies Act 1958
or a co-operative within the meaning of the
Co-operatives Act 1996; and
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(b) who is entitled, as secretary, to be paid more
than $400 per annum (other than in respect
of expenses)--
is deemed to be a worker.
5 (2) The co-operative, or co-operative society, is
deemed to be the employer of that person.
(3) The amount (other than in respect of expenses)
paid or payable to that person by the employer is
deemed to be remuneration.
10 5 Door to door sellers
If--
(a) a person (the seller) is engaged under a
contract or arrangement (not being a contract
of employment with an employer)--
15 (i) to sell goods door to door; or
(ii) to party plan on-sell goods; or
(iii) to sell services ancillary to a sale or
on-sale of goods referred to in
subparagraph (i) or (ii); and
20 (b) the Authority determines that the contract or
arrangement was entered into with an
intention of directly or indirectly avoiding or
evading the payment of premium by any
person--
25 then--
(c) the seller is deemed to be a worker; and
(d) the person who engaged the seller is deemed
to be the employer of the seller; and
(e) the amount paid or payable to the seller by
30 the person who engaged the seller is deemed
to be remuneration.
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6 Timber contractors
(1) If a person who, in the course of, or for the
purposes of, a trade or business carried on by the
person (principal), enters into a timber contract
5 with one or more individuals (timber
contractor)--
(a) each timber contractor is deemed to be a
worker; and
(b) the principal is deemed to be the employer of
10 each timber contractor.
(2) Subclause (1) does not apply if--
(a) the timber contractor--
(i) subcontracts the timber contract in its
entirety; or
15 (ii) does not perform personally any work
under the contract and employs or
engages persons to perform all the work
under the timber contract; or
(b) where the timber contractor is a partnership
20 of 2 or more individuals, no part of the work
under the timber contract is performed
personally by a member of the partnership.
(3) In relation to a timber contractor who is deemed to
be a worker, the amount payable by the principal
25 to the timber contractor, less the applicable
prescribed percentage (if any), is deemed to be
remuneration.
(4) In this clause, timber contract means a contract
under which one or more individuals agree with
30 another person (principal) to do all or any of the
following--
(a) fell trees and deliver the timber to the
principal;
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(b) cut firewood and deliver the firewood to the
principal;
(c) fell trees or cut scrub on land of which the
principal is the occupier;
5 (d) clear stumps or logs from land of which the
principal is the occupier;
(e) remove stumps or logs from land, whether
by loading them onto a vehicle or otherwise.
7 Drivers carrying passengers for reward
10 (1) A person engaged in driving a motor vehicle is
deemed to be a worker if the person (driver)--
(a) has the use of a motor vehicle under a
contract of bailment entered into with
another person (the operator) (other than a
15 bona fide contract for the purchase of the
vehicle); and
(b) uses the motor vehicle to carry passengers
for reward; and
(c) is required under the contract to make
20 payments to the operator for the use of the
motor vehicle.
(2) A reference in subclause (1) to a contract of
bailment includes a reference to a driver
agreement within the meaning of Division 5C of
25 Part VI of the Transport (Compliance and
Miscellaneous) Act 1983.
(3) If, under subclause (1), a driver is a worker--
(a) the operator is deemed to be the employer of
the driver; and
30 (b) the amount received by the driver for
carrying passengers, less the amount paid or
payable to the operator for the use of the
motor vehicle, is deemed to be remuneration.
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8 Owner drivers carrying goods for reward
(1) Subject to this clause, an individual (owner-
driver) is deemed to be a worker if, under a
contract (not being a contract of employment)
5 entered into by the individual with another person
(principal), the owner-driver drives a motor
vehicle, of which he or she is the owner, mainly
for the purposes of providing transport services to
the principal.
10 (2) This clause does not apply in respect of an
individual who is an owner-driver if the Authority
determines that, in providing transport services to
the principal, the owner-driver is carrying on an
independent trade or business.
15 (3) If, under subclause (1), an owner-driver is deemed
to be a worker--
(a) the principal is deemed to be the employer of
the owner-driver; and
(b) the amount paid or payable by the principal
20 for transport services to the owner-driver,
less the percentage deduction (if any)
applicable to owner-drivers and specified in
guidelines made by the Authority under
subclause (4), is deemed to be remuneration.
25 (4) The Authority may make guidelines as to--
(a) the circumstances in which it may determine
that an individual, in providing transport
services to a principal, is carrying on an
independent trade or business; and
30 (b) the determination of a percentage deduction
for the purposes of subclause (3)(b).
(5) The Authority must ensure that guidelines made
under subclause (4) are published and are
generally available.
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(6) In this clause--
owner, in relation to a motor vehicle, has the same
meaning as in the Road Safety Act 1986;
transport services means the service of
5 transporting and delivering goods.
9 Contractors
(1) This clause applies if--
(a) an entity (the principal), in the course of,
and for the purposes of, a trade or business
10 carried on by the entity, enters into a
contractual arrangement with another entity
(the contractor) for the provision by the
contractor of services (not being transport
services within the meaning of clause 8) to
15 the principal for reward in respect of a
relevant period; and
(b) the provision of the services by the
contractor under the contractual arrangement
is not ancillary to the provision of materials
20 or equipment by the contractor to the
principal under the contractual arrangement;
and
(c) at least 80 per cent of those services are, or
are to be, pursuant to the contractual
25 arrangement, provided by the same
individual (the individual) being--
(i) the contractor; or
(ii) if the contractor is a partnership, an
individual member of the partnership;
30 or
(iii) if the contractor is a body corporate--
a member, director, shareholder or
employee of the body corporate; or
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(iv) if the contractor is the trustee of a
trust--a person who may benefit under
that trust or is an employee of the
trustee; and
5 (d) the gross income of the contractor that is, or
is to be, derived from the provision of the
services pursuant to the contractual
arrangement is, or is to be, at least 80 per
cent of the total gross income of the
10 contractor earned from services of the same
class provided by or on behalf of the
contractor in the relevant period.
(2) This clause does not apply in respect of a
contractual arrangement if the Authority
15 determines that, in providing services to the
principal, the contractor is carrying on an
independent trade or business.
(3) The Authority may make guidelines as to the
circumstances in which it may determine that a
20 contractor, in providing services to a principal, is
carrying on an independent trade or business.
(4) The Authority must ensure that guidelines made
under subclause (3) are published and are
generally available.
25 (5) If subclause (1) applies--
(a) the individual is deemed to be a worker in
respect of the relevant period; and
(b) the principal is deemed to be the employer of
the individual in respect of the relevant
30 period; and
(c) the total amount paid or payable by the
principal to the contractor under the
contractual arrangement, less--
(i) the applicable prescribed percentage
35 (if any); or
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(ii) if there is no applicable prescribed
percentage, the part of that total amount
not attributable to the provision of
labour--
5 is deemed to be remuneration.
(6) In this clause--
principal includes a group, or one or more
members of a group, within the meaning of
section 431;
10 relevant period, in relation to services provided
under a contractual arrangement referred to
in subclause (1), means--
(a) the financial year in which those
services are, or are to be, provided; or
15 (b) if those services are, or are to be,
provided in 2 consecutive financial
years--
(i) the 12 month period beginning on
the date on which those services
20 are first provided pursuant to the
contractual arrangement; or
(ii) the 12 month period ending on the
date on which those services
cease, or are to cease, to be
25 provided;
services includes results (whether goods or
services) of work performed.
10 Remuneration and contractual arrangements
(1) If--
30 (a) a person (the principal) enters into a contract
with a body corporate (the contractor) under
which the contractor agrees to provide
services to the principal; and
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(b) the contractor engages an individual to
perform work for the purposes of the
contract; and
(c) the individual engaged is deemed under
5 clause 9 to be a worker employed by the
principal--
the amount of remuneration is the total amount
paid or payable by the principal to the contractor
under the contract, less--
10 (d) the applicable prescribed percentage; or
(e) if there is no applicable prescribed
percentage, the part of that total amount not
attributable to the provision of labour.
(2) If subclause (1) applies, an amount paid or
15 payable by a contractor within the meaning of
subclause (1) to an individual engaged by the
contractor to perform work for the principal
within the meaning of subclause (1) is not
remuneration.
20 11 Claims to be made against principal
If an individual referred to in clause 9(1)(c)(iii)
or (iv)--
(a) is deemed under clause 9(5) to be a worker
employed by the principal; and
25 (b) makes a claim for compensation under this
Act in relation to an injury arising out of, or
in the course, of being so employed--
the claim must be made against the principal
within the meaning of clause 9.
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12 Share farmers
(1) If, under a contract entered into between an owner
of land and a share farmer--
(a) the share farmer is engaged by the owner
5 and--
(i) is entitled to receive as consideration a
share of the income (being less than
one third of that income) derived from
the land whether in cash or in kind or
10 partly in cash and partly in kind; or
(ii) if the contract is in writing, the contract
provides that the owner is liable to pay
compensation under this Act in respect
of any injury arising out of or in the
15 course of any work carried out by the
share farmer in the performance of the
contract--
then--
(b) the share farmer is deemed to be a worker;
20 and
(c) the owner is deemed to be the employer of
the share farmer.
(2) If a share farmer is deemed to be a worker and an
owner of land is deemed to be that share farmer's
25 employer in respect of a particular contract, then
only the cash paid or payable under the contract
by the owner to the share farmer is deemed to be
remuneration.
(3) A share farmer engaged by an owner of land is not
30 a worker unless subclause (1) applies.
(4) A member of a share farmer's family who is
employed by, or assists, the share farmer, whether
for remuneration or otherwise, in the performance
of the duties of the share farmer, whether pursuant
35 to the contract between the share farmer and the
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owner of the land or otherwise, is not to be
deemed to be a worker employed by the owner of
the land by reason of the performance of such
duties.
5 (5) In this clause--
income, in relation to land, means the gross value
of the production derived from the land;
owner, in relation to land, includes a person in
possession of, or entitled to the receipt of,
10 the rents and profits from the land;
primary production means agriculture, pasturage,
horticulture, viticulture, apiculture, poultry
farming, dairy farming, cultivation of soils,
gathering in of crops or rearing of livestock;
15 share farmer means an individual who, under a
contract with the owner of land used
substantially for primary production--
(a) is to perform work in relation to that
land; and
20 (b) is to be remunerated in whole or in part
by receiving a share of the income,
whether in cash or in kind, derived
from that land.
13 Religious bodies and organisations
25 (1) If, by Order in Council published in the
Government Gazette at the request of a religious
body or organisation specified in the Order as
having made the request, the Governor in Council
declares that--
30 (a) persons within a class specified in the Order,
who are not otherwise workers within the
meaning of this Act, are workers of that body
or organisation; and
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(b) the employer of those persons is the person
specified in the Order as the employer--
then--
(c) the persons referred to in paragraph (a) are
5 deemed to be workers; and
(d) the person specified in paragraph (b) is
deemed to be the employer of those workers.
(2) If an Order in Council is made under this clause in
relation to a religious body or organisation, such
10 amounts as are determined by agreement between
the Authority and the religious body or
organisation are deemed to be remuneration.
14 Persons employed in the public sector
(1) This Act applies to a person who--
15 (a) is a responsible Minister of the Crown; or
(b) is a member of the Legislative Council or the
Legislative Assembly; or
(c) holds an office as a member of a public
entity or of the governing body of a public
20 entity; or
(d) holds a judicial office; or
(e) is a non-judicial member of VCAT; or
(f) is a public official within the meaning of the
Public Administration Act 2004; or
25 (g) is a bail justice; or
(h) is a member of police personnel within the
meaning of the Police Regulation Act 1958.
(2) A person specified in subclause (1) is to be taken
to be a worker.
30 (3) Amounts paid or payable to a person specified in
subclause (1) in respect of their employment,
office or duties are deemed to be remuneration.
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(4) In this clause, public entity and public official
have the same respective meanings as they have in
the Public Administration Act 2004.
15 Municipal Councillors
5 (1) A Councillor, while carrying out duties as a
Councillor, is deemed to be a worker.
(2) The Council of which the Councillor is a member,
while the Councillor is carrying out duties as a
Councillor, is deemed to be the employer of the
10 Councillor.
(3) Allowances determined by the Governor in
Council by Order made under section 74B of the
Local Government Act 1989 and paid or payable
to the Councillor are deemed to be remuneration.
15 (4) The Minister may make guidelines in accordance
with section 611 for the purposes of this clause
specifying duties performed by a Councillor that
may be taken to be, or not to be, duties as a
Councillor for the purposes of this clause.
20 (5) In this clause, Councillor and Council have the
same respective meanings as they have in
section 3(1) of the Local Government Act 1989.
16 Places of pick-up
Despite anything in this Act or any other law, if a
25 person is ordinarily engaged in any employment
in connection with which persons customarily
attend certain pre-arranged places (places of pick-
up) at which employers select and engage persons
for employment--
30 (a) any such person is deemed, while in
attendance at any such place of pick-up for
the purpose of being so selected, to be
working under a contract of employment
with an employer; and
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(b) the employer who last employed that person
in customary employment is deemed to be
that employer; and
(c) amounts paid or payable by the deemed
5 employer to that person are deemed to be
remuneration.
17 Sporting contestants
(1) Except as provided in subclause (3), if a person is
engaged by an employer to participate as a
10 contestant in a sporting or athletic activity, neither
the employer or self-insurer nor the Authority is
liable to pay compensation for an injury received
by the person if the injury is received while the
person is--
15 (a) participating as a contestant in a sporting or
athletic activity; or
(b) engaged in training or preparation with a
view to so participating; or
(c) travelling between a place of residence and
20 the place at which the person is so
participating or so engaged.
(2) For the purposes of subclause (1), person does not
include a person--
(a) who holds a licence, permit or approval to
25 ride granted in accordance with the Rules of
Racing of Racing Victoria; or
(b) engaged to participate as a rider, not being a
person referred to in paragraph (a), or a
driver in a horse, pony or harness race at a
30 race-meeting within the meaning of the
Racing Act 1958 on a racecourse licensed
under that Act or on lands otherwise
authorised for the holding of race-meetings
under Part I of that Act.
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(3) A person--
(a) engaged to participate as a rider in a horse
race conducted as part of a race meeting held
under the Rules of Racing of Racing
5 Victoria; or
(b) who, not being an apprentice or the owner or
trainer of the horse to be ridden, holds a
licence, permit or approval to ride granted in
accordance with the Rules of Racing of
10 Racing Victoria and who agrees to do ride
work on a horse at any racecourse or training
track or in the environs of a racecourse or
training track--
is deemed while participating as such a rider or
15 doing such riding work to be a worker solely
employed by Racing Victoria and the amounts
paid to the person in respect of so participating or
doing is deemed to be remuneration.
(4) In this clause, Racing Victoria has the same
20 meaning as in the Racing Act 1958.
18 Riders and drivers in certain races
If a person is engaged to participate as--
(a) a rider in a horse race or pony race; or
(b) a driver in a harness race--
25 conducted as part of a mixed sports gathering
within the meaning of the Racing Act 1958 held
in accordance with section 19 of the Racing Act
1958--
(c) the rider or driver is deemed, while so
30 participating, to be a worker; and
(d) the club, association or body of persons
holding the mixed sports gathering is
deemed to be the employer of the rider or
driver; and
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(e) amounts paid or payable to the rider or driver
for so participating are deemed to be
remuneration.
19 Outworkers
5 (1) A natural person who is an outworker within the
meaning of the Outworkers (Improved
Protection) Act 2003 is deemed to be a worker.
(2) A person (other than a family entity) who engages
a natural person who is an outworker to perform
10 outwork within the meaning of the Outworkers
(Improved Protection) Act 2003 is deemed to be
the employer of the outworker.
(3) If a person engages a family entity or a family
business to perform outwork within the meaning
15 of the Outworkers (Improved Protection) Act
2003--
(a) each person engaged by the family entity or
family business who performs outwork
within the meaning of that Act is deemed to
20 be a worker; and
(b) the first-mentioned person is deemed to be
the employer of each person referred to in
paragraph (a).
(4) Subclauses (1) and (2) do not apply if the
25 outworker does not perform any of the outwork
personally but engages a person or persons to
perform all the outwork.
(5) For the purposes of the definition of family entity,
the outworker or a member of the outworker's
30 family (relevant person), or any two or more of
them together (relevant persons) are to be taken
to have a controlling interest in a family entity
if--
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(a) where the family entity is a corporation--
(i) its directors (by whatever name called);
or
(ii) a majority of its directors; or
5 (iii) one or more of its directors is, or are,
entitled to exercise a majority in voting
power at meetings of the directors--
are under an obligation or understanding to
act in accordance with the directions,
10 instructions or wishes of the relevant person
or relevant persons; or
(b) where the family entity is a corporation with
a share capital, the relevant person or
relevant persons directly or indirectly
15 exercise, control the exercise of, or
substantially influence the exercise of more
than 50 per cent of the voting power attached
to voting shares or any class of voting shares
issued by the corporation; or
20 (c) where the family entity is a partnership--
the relevant person or relevant persons
together--
(i) own (whether or not beneficially) more
than 50 per cent of the capital of the
25 partnership; or
(ii) are entitled (whether or not
beneficially) to more than 50 per cent
of any profits of the partnership; or
(d) where the family entity is a trustee of a trust
30 that carries on a business, the relevant person
or relevant persons (whether or not a trustee
or trustees of, or beneficiary or beneficiaries
of, another trust) are beneficiaries in respect
of more than 50 per cent of the value of the
35 interests in the trust.
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(6) For the purposes of subclause (5)(d), a person
who, as the result of the exercise of a power or
discretion--
(a) by the trustee of a discretionary trust; or
5 (b) by any other person; or
(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 per
10 cent of the value of the interests in the trust.
(7) An amount paid or payable for the performance of
outwork--
(a) to a person who, under subclause (1) is
deemed to be a worker; or
15 (b) to a family entity or family business referred
to in subclause (3)(a)--
by the person deemed under subclause (2) or
(3)(b) to be the employer is deemed to be
remuneration.
20 (8) In this clause--
corporation has the same meaning as in
section 57A of the Corporations Act;
family business means an unincorporated
business--
25 (a) of which a natural person who is an
outworker is the sole proprietor; and
(b) that does not engage any person other
than the outworker or a member of the
outworker's family;
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family entity, in relation to an outworker,
means--
(a) a corporation; or
(b) a partnership; or
5 (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
outworker's family and in respect of which
10 one or more of the outworker and members
of the outworker's family have a controlling
interest;
member of the outworker's family, in relation to
an outworker, means any of the following--
15 partner, father, mother, grandfather,
grandmother, son, daughter, grandson,
granddaughter, brother, sister, uncle, aunt,
nephew, niece or cousin.
PART 2--REMUNERATION
20 Section 4(4)
20 Definition of remuneration
(1) Subject to this clause, remuneration means any
wages, remuneration, salary, commission,
incentive-based payment, bonus, penalty rate,
25 loading, overtime payment, monetary allowance
or shift allowance (whether at piece work rates or
otherwise and whether paid or payable in cash or
kind) paid to or in relation to a worker and,
without limiting the generality of the foregoing,
30 includes but is not limited to the following--
(a) wages, remuneration, salary, commission, an
incentive-based payment, bonus, penalty
rate, loading, overtime rate, monetary
allowance, piece rate, shift allowance
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(however described and whether paid or
payable in cash or in kind) and whether paid
by or on behalf of the employer or by a
person working in concert with, or under an
5 arrangement or understanding (whether
formal or informal and whether expressed or
implied) with the employer;
(b) an amount or payment that, under this Act, is
deemed to be remuneration;
10 (c) a fringe benefit;
(d) a superannuation benefit, other than a
superannuation benefit paid or payable in
respect of services performed or rendered by
a worker before 1 January 1998;
15 (e) an amount paid or payable by an entity to, or
in relation to, a director or member of the
governing body of that entity for services
rendered by that director or member to the
entity.
20 (2) Remuneration includes an amount that is the
fringe benefits taxable amount (within the
meaning of the Fringe Benefits Tax Assessment
Act 1986 of the Commonwealth) in respect of
benefits provided by an employer to which
25 section 57, 57A or 58 of that Act applies.
(3) Remuneration does not include the following--
(a) an amount paid or payable to a person within
the meaning of clause 17 engaged by an
employer to participate as a contestant in a
30 sporting or athletic activity in respect of the
services provided by the person while the
person is--
(i) participating as a contestant in that
sporting or athletic activity; or
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(ii) engaging in training or preparation with
a view to so participating; or
(iii) travelling between a place of residence
and the place at which the person is so
5 participating or so engaged;
(b) an amount paid or payable to an apprentice
under a training contract made in accordance
with a training scheme that is approved by
the Victorian Skills Commission under
10 Part 5.5 of the Education and Training
Reform Act 2006 if the apprentice or
training scheme is, or is in a class of
apprentices or training schemes declared by
the Minister to be, an apprentice or training
15 scheme to which this paragraph applies;
(c) an allowance for travel or accommodation
paid or payable at a rate in a particular class
or class of cases that does not exceed the rate
prescribed for that class or classes;
20 (d) an amount that does not exceed the
exemption limit in respect of the relevant
financial year;
(e) any payment of compensation in respect of
an injury under this Act, the Accident
25 Compensation Act 1985 or the Workers
Compensation Act 1958;
(f) in relation to a worker of a class to which an
applicable prescribed percentage applies, that
applicable prescribed percentage;
30 (g) the exempt component of a motor vehicle
allowance paid or payable in respect of a
financial year, calculated in accordance with
clause 22;
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(h) 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 the exempt
5 rate, determined in accordance with
clause 23;
(i) an amount referred to in clause 10(2).
(4) Any wages, remuneration, salary, commission,
bonuses or allowances referred to in subclause
10 (1)(a) are deemed to be paid or payable by the
employer.
(5) A reference to remuneration paid or payable by an
employer includes remuneration that is deemed to
be paid or payable by the employer.
15 (6) Paid, in relation to wages, remuneration, salary,
commission, bonuses or allowances, includes
provided, conferred and assigned.
21 Remuneration--value of remuneration comprising
fringe benefits
20 The value of remuneration comprising a fringe
benefit is to be determined in accordance with the
formula--
1
TV ×
1 - FBT rate
where--
25 TV is the value that would be the taxable value
of the benefit as a fringe benefit 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
30 the Fringe Benefits Tax Assessment Act
1986 of the Commonwealth that applies
when the liability to pay premium arises.
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22 Remuneration--motor vehicle allowance
(1) If the total motor vehicle allowance paid or
payable to a worker in respect of a financial
year--
5 (a) does not exceed the exempt component, the
motor vehicle allowance is not remuneration;
and
(b) exceeds the exempt component (if any), only
that amount that exceeds the exempt
10 component of the motor vehicle allowance is
included as remuneration.
(2) The exempt component of a motor vehicle
allowance paid or payable in respect of a financial
year is calculated in accordance with the
15 formula--
E ×R
=
where--
E is the exempt component;
K is the number of business kilometres
20 travelled during the financial year;
R is the exempt rate.
(3) Unless subclause (5) applies to an employer, the
number of business kilometres travelled during
the financial year ("K") is to be determined in
25 accordance with one of the 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 2007;
30 (b) a method approved by the Commissioner of
State Revenue under section 29(6) of the
Payroll Tax Act 2007.
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(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
5 use of an estimate).
(5) If the Authority approves a method under
subclause (4)--
(a) the approved method must be published in
the Government Gazette; and
10 (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 method.
15 (6) For the purposes of this clause, the exempt rate
for the financial year concerned is--
(a) the rate prescribed by the regulations under
section 28-25 of the Income Tax Assessment
Act 1997 of the Commonwealth for
20 calculating a deduction for car expenses for a
large car using the "cents per kilometre
method" in the financial year immediately
preceding the financial year in which the
allowance is paid or payable; or
25 (b) if no rate referred to in paragraph (a) is
prescribed, the rate prescribed by the
regulations under section 29(7)(b) of the
Payroll Tax Act 2007.
23 Remuneration--accommodation allowance
30 (1) If the accommodation allowance paid or 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 clause, the exempt rate
for the financial year concerned is--
(a) the total reasonable amount for daily travel
allowance expenses using the lowest capital
5 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.
24 Rateable remuneration
(1) Rateable remuneration means remuneration that
15 is paid or payable by an employer on or after
1 July 2014 in respect of services performed or
rendered on or after 1 July 2014 by a worker
whose employment is connected with the State of
Victoria within the meaning of section 37.
20 (2) If remuneration for a financial year includes a
fringe benefit, the amount of the fringe benefit
paid or payable in respect of that year that is
rateable remuneration is the amount of the fringe
benefit paid or payable in respect of the period
25 ending on 31 March in that financial year and
beginning on the preceding 1 April.
(3) Remuneration that is superannuation benefits that
are not paid in respect of services performed or
rendered by a worker in a particular month is
30 rateable remuneration as if it were paid or payable
in respect of services performed or rendered
during the month in which it is paid or became
payable.
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(4) Nothing in subclause (3) applies to render
remuneration that is superannuation benefits paid
or payable in respect of services performed or
rendered by a worker before 1 July 2014 to be
5 rateable remuneration.
PART 3--OTHER INTERPRETATION PROVISIONS
Section 4(5)
25 Significant contributing factor
In determining whether a worker's employment
10 was a significant contributing factor to an injury,
the following must be taken into account--
(a) the duration of the worker's current
employment;
(b) the nature of the work performed;
15 (c) the particular tasks of the employment;
(d) the probable development of the injury
occurring if that employment had not taken
place;
(e) the existence of any hereditary risks;
20 (f) the life style of the worker;
(g) the activities of the worker outside the
workplace.
26 Member of a family
(1) Member of a family, in relation to a person,
25 means--
(a) a partner, father, mother, grandfather,
grandmother, step-father, step-mother, son,
daughter, grandson, granddaughter, step-son,
step-daughter, brother, sister, half-brother
30 and half-sister of the person; and
(b) any person who stands in the place of a
parent in relation to the person.
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(2) Member of a worker's family, member of a share
farmer's family and member of an employer's
family have the same meaning as member of a
family has in subclause (1).
5 27 Superannuation benefit
(1) Superannuation benefit means money paid or
payable by an employer in respect of a worker--
(a) to or as a superannuation fund within the
meaning of the Superannuation Industry
10 (Supervision) Act 1993 of the
Commonwealth; or
(b) as a superannuation guarantee charge within
the meaning of the Superannuation
Guarantee (Administration) Act 1992 of the
15 Commonwealth; or
(c) to or as any other form of superannuation,
provident or retirement fund or scheme
including--
(i) a Superannuation Holding Accounts
20 Special Account within the meaning of
the Small Superannuation Accounts Act
1995 of the Commonwealth; and
(ii) a retirement savings account within the
meaning of the Retirement Savings
25 Accounts Act 1997 of the
Commonwealth; and
(iii) a wholly or partly unfunded fund or
scheme.
(2) A reference in subclause (1) to a worker includes
30 a reference to any person to whom, by virtue of
the definition of remuneration, an amount paid or
payable in the circumstances referred to in that
definition constitutes remuneration.
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(3) For the purposes of subclause (1)(c), a
superannuation, provident or retirement fund or
scheme is unfunded to the extent that money paid
or payable by an employer in respect of a worker
5 covered by the fund or scheme is not paid or
payable during the worker's period of employment
with the employer.
Note
See also section 446.
__________________
10
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SCHEDULE 2
Section 153(5)
PRE-INJURY AVERAGE WEEKLY EARNINGS
Column 1 Column 2 Column 3
Class of worker at time of Calculation of pre-injury
Item injury average weekly earnings
1 Worker who is-- (a) Until the worker
(a) under the age of attains the age or stage
21 years; or or, but for the injury,
would have attained
(b) an apprentice; or
the age or stage at
(c) working under a which the highest rate
contract of employment is payable--the
under which the worker worker's pre-injury
is required to undergo average weekly
training, instruction or earnings are the
examination in order to earnings that the
become qualified to worker would have
carry on an been entitled to receive
occupation-- in respect of a relevant
and who, but for the week if the worker had
injury, would have been not sustained the injury
entitled to increments in and had continued in
earnings at certain ages or the employment;
stages during the course of (b) On and after the
employment to become worker attains the age
qualified. or stage or, but for the
injury, would have
attained the age or
stage at which the
highest rate is
payable--the worker's
pre-injury average
weekly earnings are to
be calculated as if, at
the time of the injury,
the worker were being
paid at the highest rate
applicable to that age
or stage;
(c) If (a) or (b) applies but
there is no rate
applicable to a worker
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Column 1 Column 2 Column 3
Class of worker at time of Calculation of pre-injury
Item injury average weekly earnings
who has attained the
age of 21 years, the
worker's pre-injury
average weekly
earnings are twice the
State average weekly
earnings.
2 Worker employed by 2 or The worker's pre-injury
more employers and who average weekly earnings are
works for one of those to be calculated in
employers for at least the accordance with Division 1
ordinary hours fixed in any of Part 5 with reference to
applicable industrial award. the work for the employer
for whom the worker works
for at least the ordinary
hours fixed in the industrial
award.
3 Worker employed by 2 or The worker's pre-injury
more employers who works average weekly earnings are
for one of those employers to be calculated in
for at least the prescribed accordance with Division 1
number of hours each week of Part 5 with reference to
and to whom no industrial the work for the employer
award is applicable. for whom the worker works
for at least the prescribed
number of hours.
4 Worker employed by 2 or The worker's pre-injury
more employers for at least average weekly earnings are
the ordinary hours fixed in to be calculated in
any applicable industrial accordance with Division 1
award. of Part 5 with reference to
the work which yields the
higher weekly ordinary
earnings.
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Column 1 Column 2 Column 3
Class of worker at time of Calculation of pre-injury
Item injury average weekly earnings
5 Worker employed by 2 or The worker's pre-injury
more employers who works average weekly earnings are
for one of those employers to be calculated in
for at least the ordinary hours accordance with Division 1
fixed in an applicable of Part 5 with reference to
industrial award and works the work which yields the
for another of those higher weekly ordinary
employers for at least the earnings.
prescribed number of hours
each week.
6 Worker employed by 2 or The worker's pre-injury
more employers for at least average weekly earnings are
the prescribed number of to be calculated in
hours each week and to accordance with Division 1
whom no industrial award is of Part 5 with reference to
applicable. the work which yields the
higher weekly ordinary
earnings.
7 Worker employed by 2 or The worker's pre-injury
more employers who sustains average weekly earnings are
an injury that results in an to be calculated in
incapacity to work for one or accordance with Division 1
more of those employers but of Part 5 with reference to
not for all those employers. earnings from work with all
the employers.
8 Worker employed by 2 or The worker's pre-injury
more employers in average weekly earnings are
circumstances other than the worker's average
those described in the ordinary earnings expressed
preceding provisions of this as an amount per hour for
Schedule. all work carried out by the
worker for all employers
multiplied by--
(a) the prescribed number
of hours per week; or
(b) the total of the
worker's ordinary
hours per week--
whichever is the lesser.
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Column 1 Column 2 Column 3
Class of worker at time of Calculation of pre-injury
Item injury average weekly earnings
9 Worker who, during the The worker's pre-injury
period of 52 weeks average weekly earnings are
immediately before the to be calculated in
injury, receives advice in accordance with Division 1
writing from the employer of Part 5 with reference to
that the worker is to be the amount that is the
promoted or otherwise average of the earnings
appointed to a new position expressed as a weekly sum
(otherwise than on a that the worker could
temporary basis) with the reasonably be expected to
effect that the worker's have earned after the
ordinary earnings will be promotion or appointment
increased but has not been so had taken effect as if the
promoted or appointed. promotion or appointment
had taken effect 52 weeks
before the injury.
10 Full-time student at a post- (a) Until the worker, but
secondary education for the injury, would
institution within the meaning have completed the
of the Education and course as a full-time
Training Reform Act 2006. student, pre-injury
average weekly
earnings are to be
calculated in
accordance with
Division 1 of Part 5;
(b) As from the time the
worker, but for the
injury, would have
completed the course
in which the worker
was a full-time
student, pre-injury
average weekly
earnings are twice the
State average weekly
earnings.
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Column 1 Column 2 Column 3
Class of worker at time of Calculation of pre-injury
Item injury average weekly earnings
11 Full-time student at primary (a) Until the worker, but
or secondary school. for the injury, would
have completed
secondary school, pre-
injury average weekly
earnings are to be
calculated in
accordance with
Division 1 of Part 5;
(b) As from the time the
worker, but for the
injury, would have
completed secondary
school, pre-injury
average weekly
earnings are $1210.
12 Worker (not being a worker The worker's pre-injury
to whom another item of this average weekly earnings are
Schedule applies) who is a the amount deemed by
student at a school within the operation of section 5.4.9(6)
meaning of Part 5.4 of the of the Education and
Education and Training Training Reform Act
Reform Act 2006 and is 2006.
employed under a work
experience arrangement or a
structured workplace learning
arrangement under that Part.
13 Worker (not being a worker The worker's pre-injury
to whom another item of this average weekly earnings are
Schedule applies) who is a the amount deemed by
post-secondary student operation of section
within the meaning of Part 5.4.16(5) of the Education
5.4 of the Education and and Training Reform Act
Training Reform Act 2006 2006.
and is employed under a
practical placement
agreement under that Part.
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SCHEDULE 3
Section 210
MODIFICATION TO DEGREES OF IMPAIRMENT FOR THE
PURPOSES OF DIVISION 5 OF PART 5
Column 1 Column 2
Whole person impairment as
assessed in accordance with
Chapter 3 of the A.M.A Guides Modified whole person impairment
5 10.00
6 10.20
7 10.40
8 10.60
9 10.80
10 11.00
11 11.95
12 12.90
13 13.85
14 14.80
15 15.75
16 16.70
17 17.65
18 18.60
19 19.55
20 20.50
21 21.45
22 22.40
23 23.35
24 24.30
25 25.25
26 26.20
27 27.15
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Column 1 Column 2
Whole person impairment as
assessed in accordance with
Chapter 3 of the A.M.A Guides Modified whole person impairment
28 28.10
29 29.05
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SCHEDULE 4
NO DISADVANTAGE--COMPENSATION TABLE
Section 221
TABLE
Total Losses--Minimum
Compensation Payable for
Total Loss
Injury $
Total loss of the sight of both eyes 273 640
Total loss of the sight of an only eye 273 640
Loss of both hands 273 640
Loss of both feet 273 640
Loss of a hand and a foot 273 640
Total loss of the right arm or of the greater
part of the right arm 218 920
Total loss of the left arm or of the greater
part of the left arm 205 240
Total loss of the right hand or of five
fingers of the right hand, or of the lower
part of the right arm 191 250
Total loss of the left hand or of five fingers
of the left hand, or of the lower part of the
left arm 177 890
Total loss of a leg 205 240
Total loss of a foot 177 890
Total loss of the lower part of the leg 191 520
Total loss of the sight of one eye, together
with the serious diminution of the sight of
the other eye 205 240
Total loss of hearing 177 890
Total loss of the sight of one eye 109 430
Loss of binocular vision 109 430
Loss of eyeball (in addition to
compensation for loss of sight of an eye) 60 210
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Total Losses--Minimum
Compensation Payable for
Total Loss
Injury $
Total loss of power of speech 164 190
Total loss of sense of taste or smell 46 530
Total loss of senses of both taste and smell 93 050
Total loss of male sexual organs 128 630
Total loss of penis 128 630
Total loss of one testicle 27 330
Total loss of two testicles or an only
testicle 128 630
Total loss of female sexual organs 128 630
Total loss of both breasts 128 630
Total loss of one breast 82 080
Total loss of the thumb of the right hand 82 080
Total loss of the thumb of the left hand 71 150
Total loss of the forefinger of the right
hand 57 490
Total loss of the forefinger of the left hand 49 240
Total loss of two joints of the forefinger of
the right hand 43 780
Total loss of two joints of the forefinger of
the left hand 32 830
Total loss of a joint of the thumb 43 780
Total loss of the first joint of the forefinger
of the right hand 27 330
Total loss of the first joint of the forefinger
of the left hand 24 640
Total loss of the first joint of the middle or
little or ring finger of either hand 16 400
Total loss of the middle finger of either
hand 32 830
Total loss of the little or ring finger of
either hand 30 120
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Total Losses--Minimum
Compensation Payable for
Total Loss
Injury $
Total loss of two joints of the middle
finger of either hand 27 330
Total loss of two joints of the little or ring
finger of either hand 24 640
Total loss of the great toe of either foot 60 210
Total loss of a joint of the great toe of
either foot 27 330
Total loss of any other toe 16 400
Total loss of a joint of any other toe 5 470
Total loss of a joint of the thumb 43 780
Quadriplegia 273 640
Paraplegia 273 640
Total impairment of the spine 273 640
For the purposes of this Table--
(a) the total loss of a limb, hand, foot, finger,
thumb, toe or joint or any part thereof is
deemed to include the permanent total loss of
5 the use of such limb, hand, foot, finger,
thumb, toe, joint or part;
(b) where a worker habitually uses the left hand
and arm to perform work usually performed
by a worker with the right hand and arm, the
10 compensation payable for the loss of such
left arm or the greater part of the arm or for
the total loss of the left hand or of five
fingers thereof or of the lower part of that
arm or of a finger or part of a finger of the
15 left hand is such amount as would have been
payable for a similar loss in respect of the
right arm or the part or parts thereof, but in
any such case the compensation for the loss
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of the right arm or the greater part of that
arm or for the total loss of the right hand or
of five fingers thereof or of the lower part of
that arm or of a finger or part of a finger of
5 the right hand is such amount as would have
been payable for a similar loss in respect of
the left arm or the part or parts thereof if the
worker did not habitually use the left hand
and arm to perform work usually performed
10 by a worker with the right hand and arm.
Note
Amounts are indexed to the year in which the injury occurred.
__________________
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SCHEDULE 5
Section 246
TABLE TO BE USED TO DETERMINE SETTLEMENT
AMOUNTS UNDER SECTION 246
Column 1 Column 2
Age
56 67
57 65
58 61
59 56
60 50
61 43
62 35
63 27
64 19
65 0
__________________
5
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SCHEDULE 6
Section 375
SELF-INSURERS--PRE-APPLICATION ELIGIBILITY FEE
1 Pre-application eligibility fee
5 (1) The fee that must accompany an application under
section 375(1) is $846 (or $931 inclusive of GST)
as varied in accordance with subclause (2).
(2) An amount referred to in subclause (1) must be
varied, in respect of the financial year beginning
10 on 1 July 2014 and each subsequent financial
year, in accordance with the formula--
B
A×
C
where--
A is an amount specified in subclause (1) or, if
15 that amount has been varied in accordance
with this clause, that amount as last so
varied;
B is the all groups consumer price index for
Melbourne in original terms published by the
20 Australian Bureau of Statistics as at 15 June
in the preceding financial year in respect of
the most recent reference period ending on or
before 31 December in that financial year;
C is the all groups consumer price index for
25 Melbourne in original terms for the
corresponding reference period one year
earlier than the reference period referred to
in B published by the Australian Bureau of
Statistics as at 15 June referred to in B.
__________________
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SCHEDULE 7
Section 376
APPLICATION FEE FOR APPROVAL AS SELF-INSURER
1 Application fee
5 For the purposes of section 376(4) and subject to
section 378, the fee that must accompany an
application for approval as a self-insurer is the
lesser of--
(a) an amount equal to 0033 per cent of the
10 assessment remuneration of the applicant
determined under clause 2;
(b) the fee limit determined under clause 3.
2 Assessment remuneration
(1) For the purposes of clause 1(a) and subject to
15 subclause (2), assessment remuneration of an
employer means the sum of--
A
× 12
B
where--
A is the total relevant remuneration which was
20 paid or payable during the preceding year to
workers employed by the employer and its
eligible subsidiaries;
B is the number of months in the preceding
year during which the remuneration referred
25 to in the definition of A was paid or payable
by the employer.
(2) If the employer and its eligible subsidiaries have
paid no remuneration during the preceding year,
the assessment remuneration means the relevant
30 remuneration estimated by the Authority under
section 377 as payable by the employer and its
eligible subsidiaries during the forthcoming year.
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(3) In this clause--
forthcoming year means the next financial year
following the date on which the application
is made;
5 preceding year means the most recent financial
year preceding the date on which the
application is made;
relevant remuneration has the same meaning it
has in section 372.
10 3 Fee limit
(1) For the purposes of clause 1(b), the fee limit for
an application for approval as a self-insurer is
$55 330 or that amount as varied in accordance
with subclauses (2), (3) and (4) as at the date on
15 which the application is made.
(2) The fee limit must be varied, in respect of the
financial year beginning on 1 July 2014 and each
subsequent financial year, in accordance with the
formula--
B
20 A×
C
where--
A is the amount specified in subclause (1) or, if
that amount has been varied in accordance
with this clause, that amount as last so
25 varied;
B is the average weekly total earnings of all
employees in Victoria in original terms for
the most recent reference period in the
preceding financial year published by the
30 Australian Bureau of Statistics as at 15 June
immediately preceding the date on which the
variation is made;
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C is the average weekly total earnings of all
employees in Victoria in original terms for
the corresponding reference period in the
financial year preceding the financial year
5 referred to in B published by the Australian
Bureau of Statistics as at 15 June
immediately preceding the date on which the
variation is made.
(3) If the variation of the fee limit by operation of
10 subclause (2) has the effect of reducing the
amount of the fee limit--
(a) the variation is deemed not to have taken
effect, except for the purposes of the
application of this subclause; and
15 (b) when the fee limit is varied and increased by
operation of subclause (2) in respect of the
next or a subsequent financial year, that
variation has effect as an increase only to the
extent (if any) to which the amount of the
20 increase exceeds the amount of the reduction
in respect of a preceding financial year, or
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
25 limit must be calculated to the nearest whole $10.
__________________
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SCHEDULE 8
Section 595
PERSONS TO WHOM DOCUMENT MAY BE PRODUCED OR
INFORMATION COMMUNICATED OR DIVULGED
5 1 The Secretary to the Department of State Development,
Business and Innovation.
2 The Secretary to the Department of Environment and
Primary Industries.
3 The Secretary to the Department of Transport, Planning
10 and Local Infrastructure.
4 The Secretary to the Department of Treasury and
Finance.
5 The Coroners Court.
6 The Public Advocate.
15 7 The Commissioner of State Revenue.
8 The Transport Accident Commission.
9 A person who has responsibility for the administration
of a welfare, benefit or compensation scheme of a State
or Territory or the Commonwealth.
20 10 A corresponding authority.
11 A Department or public entity within the meaning of
the Public Administration Act 2004.
12 The National Occupational Health and Safety
Commission.
25 13 The Australian Bureau of Statistics.
14 The Board or committee of management (by whatever
name called) of a statutory superannuation scheme
within the meaning of the Superannuation
(Portability) Act 1989.
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15 Any special commission (within the meaning of the
Evidence (Commissions) Act 1982) where--
(a) the Authority has received a request in writing for
information from the special commission; and
5 (b) the Minister has given written approval to the
Authority of the communication of that
information; and
(c) the Authority has given to that person written
approval of the communication of that
10 information.
16 A person, committee or body approved by the
Governor in Council.
17 A committee of the Parliament.
18 CPA Australia.
15 19 A National Board within the meaning of the Health
Practitioner Regulation National Law.
20 Legal Services Board.
21 Legal Services Commissioner.
22 Victorian Bar Inc..
20 23 CoINVEST Limited A.C.N. 078 0040985 or its
successors.
__________________
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SCHEDULE 9
Section 649
CONSEQUENTIAL AMENDMENTS
1 Asbestos Diseases Compensation Act 2008
5 (1) In the note to section 4, in paragraph (b), after
"31 August 1985" insert "but before 1 July 2014".
(2) In the note to section 4, after paragraph (b)
insert--
"(ba) the Workplace Injury Rehabilitation and
10 Compensation Act 2013 applies, if the
injury arises out of, or in the course of, or
was due to the nature of the injured person's
employment on or after 1 July 2014;".
2 Children, Youth and Families Act 2005
15 (1) In section 389(7)--
(a) in paragraph (a), after "Act 1985" insert
"or the Workplace Injury Rehabilitation
and Compensation Act 2013";
(b) in paragraph (b), after "Act 1985" (where
20 twice occurring) insert "or the Workplace
Injury Rehabilitation and Compensation
Act 2013".
(2) In section 407(3), after "Act 1985" (wherever
occurring) insert "and the Workplace Injury
25 Rehabilitation and Compensation Act 2013".
3 Civil Procedure Act 2010
In section 3, for paragraph (u) of the definition of
substantive document, substitute--
"(u) an application under section 299 of the
30 Workplace Injury Rehabilitation and
Compensation Act 2013;".
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4 Conservation, Forests and Lands Act 1987
(1) In section 56(1), for the definition of Commission
substitute--
"Authority" means the Victorian WorkCover
5 Authority under the Workplace Injury
Rehabilitation and Compensation Act
2013;".
(2) In section 56(1)--
(a) in the definition of spouse for "married;"
10 substitute "married.";
(b) omit the definition of Tribunal.
(3) In section 58(2), after "Act 1985" insert "or the
Workplace Injury Rehabilitation and
Compensation Act 2013, as the case requires".
15 (4) Insert the following heading to section 59--
"Jurisdiction of County Court".
(5) In section 59--
(a) for "the Tribunal" substitute "the County
Court";
20 (b) for ", and that Act applies" substitute "or the
Workplace Injury Rehabilitation and
Compensation Act 2013, as the case
requires, and those Acts apply".
(6) Insert the following heading to section 60--
25 "Authority to represent the Crown".
(7) In section 60--
(a) for "Commission" substitute "Authority";
(b) for "rules made by the Tribunal" substitute
"rules made by the County Court";
30 (c) after "Act 1985" insert "or the Workplace
Injury Rehabilitation and Compensation
Act 2013, as the case requires,".
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(8) Insert the following heading to section 61--
"Authority entitled to costs and expenses".
(9) In section 61--
(a) for "Commission" (where 4 times occurring)
5 substitute "Authority";
(b) for "Tribunal" (where 3 times occurring)
substitute "County Court";
(c) for "Accident Compensation Fund"
substitute "WorkCover Authority Fund".
10 (10) In section 62, for "Tribunal" substitute "County
Court".
5 Constitution Act 1975
(1) In section 81G(b), for "Accident Compensation
(WorkCover Insurance) Act 1993" substitute
15 "Workplace Injury Rehabilitation and
Compensation Act 2013".
(2) In section 82(7)(b), for "Accident Compensation
(WorkCover Insurance) Act 1993" substitute
"Workplace Injury Rehabilitation and
20 Compensation Act 2013".
(3) In section 83A(4)(b), for "Accident
Compensation (WorkCover Insurance) Act
1993" substitute "Workplace Injury
Rehabilitation and Compensation Act 2013".
25 6 Corrections Act 1986
(1) In section 104ZO, for "established under the
Accident Compensation Act 1985" substitute
"within the meaning of the Workplace Injury
Rehabilitation and Compensation Act 2013".
30 (2) In section 104ZR(1) and (2), after "Act 1985"
insert "or the Workplace Injury Rehabilitation
and Compensation Act 2013, as the case
requires,".
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(3) In section 104ZR(3)(a), for "Accident
Compensation Act 1985" substitute
"Workplace Injury Rehabilitation and
Compensation Act 2013".
5 (4) In section 104ZT, for "and that Act applies"
substitute "or the Workplace Injury
Rehabilitation and Compensation Act 2013, as
the case requires, and those Acts apply".
(5) In section 104ZU, after "Accident Compensation
10 Act 1985" insert "or the Workplace Injury
Rehabilitation and Compensation Act 2013".
(6) In section 104ZW, for "Accident Compensation
Act 1985" substitute "Workplace Injury
Rehabilitation and Compensation Act 2013".
15 7 Country Fire Authority Act 1958
(1) In section 63(3), after "Act 1985" insert "but
before 1 July 2014".
(2) After section 63(3) insert--
"(3A) The persons to whom or for whose benefit
20 compensation is payable are, in respect of
personal injury suffered on or after 1 July
2014, those persons to whom or for whose
benefit compensation would be payable
under the Workplace Injury Rehabilitation
25 and Compensation Act 2013 if the casual
fire-fighter or volunteer auxiliary worker
were a worker within the meaning of that
Act and the personal injury were caused in
the employment of the casual fire-fighter or
30 volunteer auxiliary worker by accident
arising out of or in the course of the
employment.".
(3) In section 63(6), after "and 98)" insert "or the
Workplace Injury Rehabilitation and
35 Compensation Act 2013 (other than sections 50,
51, 59, 61 or 62)".
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(4) In section 63(7) and (8), after "Act 1985" insert
"or the Workplace Injury Rehabilitation and
Compensation Act 2013".
8 County Court Act 1958
5 (1) In section 10(7)(b), for "Accident Compensation
(WorkCover Insurance) Act 1993" substitute
"Workplace Injury Rehabilitation and
Compensation Act 2013".
(2) In section 12G(b), for "Accident Compensation
10 (WorkCover Insurance) Act 1993" substitute
"Workplace Injury Rehabilitation and
Compensation Act 2013".
(3) In section 17AA(4)(b), for "Accident
Compensation (WorkCover Insurance) Act
15 1993" substitute "Workplace Injury
Rehabilitation and Compensation Act 2013".
9 Credit Act 1984
In section 9, for "Accident Compensation Act
1985" substitute "Workplace Injury
20 Rehabilitation and Compensation Act 2013".
10 Criminal Procedure Act 2009
In item 35 of Schedule 3, for "section 252 of the
Accident Compensation Act 1985" substitute
"section 608 of the Workplace Injury
25 Rehabilitation and Compensation Act 2013".
11 Dangerous Goods Act 1985
(1) In section 3(1), in the definition of Authority, for
"established under the Accident Compensation
Act 1985" substitute "within the meaning of the
30 Workplace Injury Rehabilitation and
Compensation Act 2013".
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(2) In section 11(3), for "(appointed under section 22
of the Accident Compensation Act 1985)"
substitute "appointed under section 498 of the
Workplace Injury Rehabilitation and
5 Compensation Act 2013".
(3) In section 50A(b), for "(appointed under
section 22 of the Accident Compensation Act
1985)" substitute "appointed under section 498 of
the Workplace Injury Rehabilitation and
10 Compensation Act 2013".
(4) In the note to section 60C(3), for "section 22(5) of
the Accident Compensation Act 1985,"
substitute "section 499(3) of the Workplace
Injury Rehabilitation and Compensation Act
15 2013".
12 Duties Act 2000
In section 196(b)--
(a) subparagraph (i) is repealed;
(b) in subparagraph (ii), for "section 20A of the
20 Accident Compensation Act 1985"
substitute "section 494 of the Workplace
Injury Rehabilitation and Compensation
Act 2013";
(c) in subparagraph (iv), after "Act 1985" insert
25 "or the Workplace Injury Rehabilitation
and Compensation Act 2013";
(d) in subparagraph (v), for "Accident
Compensation Act 1985" substitute
"Workplace Injury Rehabilitation and
30 Compensation Act 2013".
13 Education and Training Reform Act 2006
(1) In section 5.4.9(6), after "Act 1985" insert
"and the Workplace Injury Rehabilitation and
Compensation Act 2013".
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(2) In section 5.4.16(5), after "Act 1985" insert
"and the Workplace Injury Rehabilitation and
Compensation Act 2013".
(3) In section 5.6.1(1), in the definition of Authority,
5 for "Accident Compensation Act 1985"
substitute "Workplace Injury Rehabilitation
and Compensation Act 2013".
(4) In section 5.6.2(4), after "31 August 1985" insert
"but before 1 July 2014".
10 (5) After section 5.6.2(4) insert--
"(5) The compensation shall, in respect of
personal injury suffered on or after 1 July
2014, be paid in accordance with and subject
to the Workplace Injury Rehabilitation
15 and Compensation Act 2013 as if, within
the meaning of that Act at the time the
person suffered the personal injury--
(a) the person was a worker employed by
the Crown; and
20 (b) the person suffered a personal injury
arising out of or in the course of
employment with the Crown.".
(6) After section 5.6.2A(1) insert--
"(1A) If judgment is obtained, or a compromise or
25 settlement is made, in respect of proceedings
referred to in section 326 of the Workplace
Injury Rehabilitation and Compensation
Act 2013 in respect of an injury, the
Authority or the Crown as the employer is
30 not liable--
(a) where pecuniary loss damages (within
the meaning of section 325 of the
Workplace Injury Rehabilitation and
Compensation Act 2013) are awarded,
35 to make payments under section 164,
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169 or 170 of that Act in respect of the
injury; or
(b) where damages for pain and suffering
(within the meaning of section 325 of
5 the Workplace Injury Rehabilitation
and Compensation Act 2013) are
awarded, to make payments under
Division 5 of Part 5 of that Act in
respect of the injury.".
10 (7) In section 5.6.4(a), after "Act 1985" insert "or the
Workplace Injury Rehabilitation and
Compensation Act 2013".
(8) In section 5.6.5(b), for "or as an authorised insurer
has under the Accident Compensation Act 1985"
15 substitute ", the Accident Compensation Act
1985 or the Workplace Injury Rehabilitation
and Compensation Act 2013".
(9) In section 5.6.6(2), for "Accident Compensation
Act 1985" substitute "Workplace Injury
20 Rehabilitation and Compensation Act 2013".
14 Emergency Management Act 1986
(1) In section 25, in the definition of Authority, for
"Accident Compensation Act 1985" substitute
"Workplace Injury Rehabilitation and
25 Compensation Act 2013".
(2) In section 25A, after "Act 1985" insert ",
the Workplace Injury Rehabilitation and
Compensation Act 2013".
(3) In section 28--
30 (a) in subsection (1), after "Act 1985" insert
"or the Workplace Injury Rehabilitation
and Compensation Act 2013, as the case
requires";
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(b) in subsection (2), after "Act 1985" insert
"or the Workplace Injury Rehabilitation
and Compensation Act 2013";
(c) in subsection (3)(a), for "Accident
5 Compensation Act 1985" substitute
"Workplace Injury Rehabilitation and
Compensation Act 2013".
(4) In section 30, after "Act 1985" insert "or the
Workplace Injury Rehabilitation and
10 Compensation Act 2013".
(5) In section 31, for "or as an authorised insurer has
under the Accident Compensation Act 1985"
substitute ", the Accident Compensation Act
1985 or the Workplace Injury Rehabilitation
15 and Compensation Act 2013".
(6) In section 32(2), for "Accident Compensation
Act 1985" substitute "Workplace Injury
Rehabilitation and Compensation Act 2013".
15 Emergency Services Superannuation Act 1986
20 (1) In section 20A(1), after "Act 1985" insert "or the
Workplace Injury Rehabilitation and
Compensation Act 2013".
(2) In section 20B(3)(a), after "Act 1985" insert
"or the Workplace Injury Rehabilitation and
25 Compensation Act 2013".
(3) In section 20F(7), after "Act 1985" insert "or the
Workplace Injury Rehabilitation and
Compensation Act 2013".
16 Equipment (Public Safety) Act 1994
30 (1) In section 3(1), in the definition of Authority, for
"established under section 18 of the Accident
Compensation Act 1985" substitute "under the
Workplace Injury Rehabilitation and
Compensation Act 2013".
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(2) In section 12(2), for "(appointed under section 22
of the Accident Compensation Act 1985)"
substitute "appointed under section 498 of the
Workplace Injury Rehabilitation and
5 Compensation Act 2013".
(3) In section 29(b), for "(appointed under section 22
of the Accident Compensation Act 1985)"
substitute "appointed under section 498 of the
Workplace Injury Rehabilitation and
10 Compensation Act 2013".
(4) In the Note to section 34C(3), for "(see
section 22(5) of the Accident Compensation
Act 1985)" substitute "(see section 499(3) of the
Workplace Injury Rehabilitation and
15 Compensation Act 2013)".
17 Evidence Act 2008
In the Notes to section 4 omit--
"· section 44 of the Accident Compensation Act
1985;".
20 18 Evidence (Miscellaneous Provisions) Act 1958
In section 28--
(a) in subsection (2), omit "or an investigation
by a Complaints Investigator under the
Accident Compensation Act 1985";
25 (b) in subsection (5)(b), after "Act 1985" insert
"or the Workplace Injury Rehabilitation
and Compensation Act 2013".
19 Independent Broad-based Anti-corruption
Commission Act 2011
30 (1) In section 3(1)--
(a) in paragraph (b) of the definition of law
enforcement agency, for "established under
section 18 of the Accident Compensation
Act 1985" substitute "within the meaning of
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the Workplace Injury Rehabilitation and
Compensation Act 2013";
(b) in the definition of notification to the IBAC,
omit paragraph (c);
5 (c) in the definition of notification to the IBAC,
after paragraph (i) insert--
"(j) a notification under section 613 of the
Workplace Injury Rehabilitation and
Compensation Act 2013;";
10 (d) in paragraph (b) of the definition of
prosecutorial body, for "established
under section 18 of the Accident
Compensation Act 1985" substitute
"within the meaning of the Workplace
15 Injury Rehabilitation and
Compensation Act 2013".
(2) In section 73(2)(e) for "established under
section 18 of the Accident Compensation Act
1985" substitute "within the meaning of the
20 Workplace Injury Rehabilitation and
Compensation Act 2013".
(3) In section 175(2)(a), after "Act 1985" insert
"or the Workplace Injury Rehabilitation and
Compensation Act 2013".
25 20 Juries Act 2000
(1) In section 54, for "Accident Compensation Act
1985" substitute "Workplace Injury
Rehabilitation and Compensation Act 2013".
(2) In section 55(4), (7), (8), (9) and (10) after
30 "Accident Compensation Act 1985" insert
"or the Workplace Injury Rehabilitation and
Compensation Act 2013".
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(3) In section 55(11)(a), for "Accident
Compensation Act 1985" substitute
"Workplace Injury Rehabilitation and
Compensation Act 2013".
5 (4) In section 57, for "Accident Compensation Act
1985" substitute "Workplace Injury
Rehabilitation and Compensation Act 2013".
(5) In section 58, for "Accident Compensation Act
1985" substitute "Workplace Injury
10 Rehabilitation and Compensation Act 2013".
(6) In section 59(2), for "Accident Compensation
Act 1985" substitute "Workplace Injury
Rehabilitation and Compensation Act 2013".
21 Limitation of Actions Act 1958
15 In section 27B(2)(a), after "Act 1985" insert
"or Part 7 of the Workplace Injury
Rehabilitation and Compensation Act 2013".
22 Local Government Act 1989
In section 94A(1)--
20 (a) in paragraph (e), for "Accident
Compensation (WorkCover Insurance)
Act 1993" substitute "Workplace Injury
Rehabilitation and Compensation Act
2013";
25 (b) in the Note to paragraph (e), after "Act
1985" insert "and clause 15 of Schedule 1 to
the Workplace Injury Rehabilitation and
Compensation Act 2013".
23 Long Service Leave Act 1992
30 In section 64(7)(a), for "section 5 of the Accident
Compensation Act 1985" substitute "section 3 of
the Workplace Injury Rehabilitation and
Compensation Act 2013".
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24 Magistrates' Court Act 1989
(1) In section 100(2A), after "Act 1985" insert
"or the Workplace Injury Rehabilitation and
Compensation Act 2013".
5 (2) In Schedule 1--
(a) in item 10(b), for "Accident Compensation
(WorkCover Insurance) Act 1993"
substitute "Workplace Injury
Rehabilitation and Compensation Act
10 2013";
(b) in item 12(b), for "Accident Compensation
(WorkCover Insurance) Act 1993"
substitute "Workplace Injury
Rehabilitation and Compensation Act
15 2013".
25 Occupational Health and Safety Act 2004
(1) In section 5(1)--
(a) in the definition of Authority for "established
by section 18 of the Accident
20 Compensation Act 1985" substitute "under
the Workplace Injury Rehabilitation and
Compensation Act 2013";
(b) in the definition of exit date for "section 164
of the Accident Compensation Act 1985"
25 substitute "section 413 of the Workplace
Injury Rehabilitation and Compensation
Act 2013";
(c) in the definition of non-WorkCover
employer, for "section 164 of the Accident
30 Compensation Act 1985" substitute
"section 413 of the Workplace Injury
Rehabilitation and Compensation Act
2013";
571139B.I-17/9/2013 736 BILL LA INTRODUCTION 17/9/2013
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(d) in the definition of rateable remuneration,
for "section 3(1) of the Accident
Compensation (WorkCover Insurance)
Act 1993" substitute "section 3 of the
5 Workplace Injury Rehabilitation and
Compensation Act 2013";
(e) in the definition of self-insurer, for
"section 5(1) of the Accident Compensation
Act 1985" substitute "section 3 of the
10 Workplace Injury Rehabilitation and
Compensation Act 2013".
(2) In the Note to section 7(1), for "Accident
Compensation Act 1985" substitute
"Workplace Injury Rehabilitation and
15 Compensation Act 2013".
(3) In the Note to section 18(3), for "section 22(5) of
the Accident Compensation Act 1985"
substitute "section 499(3) of the Workplace
Injury Rehabilitation and Compensation Act
20 2013".
(4) In section 78E(3)(b), for "Accident
Compensation Act 1985" substitute
"Workplace Injury Rehabilitation and
Compensation Act 2013".
25 (5) In section 95(3), for "section 22 of the Accident
Compensation Act 1985" substitute "section 498
of the Workplace Injury Rehabilitation and
Compensation Act 2013".
(6) In section 133(b), for "section 22 of the Accident
30 Compensation Act 1985" substitute "section 498
of the Workplace Injury Rehabilitation and
Compensation Act 2013".
571139B.I-17/9/2013 737 BILL LA INTRODUCTION 17/9/2013
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(7) In section 151A--
(a) in subsection (1), for "section 32 of the
Accident Compensation Act 1985"
substitute "section 513 of the Workplace
5 Injury Rehabilitation and Compensation
Act 2013";
(b) in subsection (2), in the definitions of "A"
and "B", for "the premium for a WorkCover
insurance policy under the Accident
10 Compensation (WorkCover Insurance)
Act 1993" (wherever occurring) substitute
"a premium under the Workplace Injury
Rehabilitation and Compensation Act
2013";
15 (c) in subsection (2), in subparagraph (i) of the
definition of "C", for "paragraphs (d), (e),
(f), (fa) and (i) of section 32(4) of the
Accident Compensation Act 1985"
substitute "paragraphs (b), (c), (e), (f) and
20 (k) of section 513(5) of the Workplace
Injury Rehabilitation and Compensation
Act 2013";
(d) in subsection (2), in subparagraph (ii) of the
definition of "C", for "Division 2 of Part III
25 of the Accident Compensation Act 1985"
substitute "Divisions 2 and 3 of Part 6 of the
Workplace Injury Rehabilitation and
Compensation Act 2013";
(e) in subsection (2), in the definition of "D", for
30 subparagraphs (i) and (ii) substitute--
"(i) referred to in section 513(5)(b) of the
Workplace Injury Rehabilitation and
Compensation Act 2013; and
571139B.I-17/9/2013 738 BILL LA INTRODUCTION 17/9/2013
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(ii) the costs incurred in the administration
of Divisions 2 and 3 of Part 11 of the
Workplace Injury Rehabilitation and
Compensation Act 2013;".
5 26 Ombudsman Act 1973
In Schedule 1--
(a) in column 3 of item 16, for "Part II of the
Accident Compensation Act 1985"
substitute "Part 11 of the Workplace
10 Injury Rehabilitation and Compensation
Act 2013";
(b) in column 1 of item 17, for "Accident
Compensation Act 1985" substitute
"Workplace Injury Rehabilitation and
15 Compensation Act 2013";
(c) In column 3 of item 17, for "Part II of the
Accident Compensation Act 1985"
substitute "Part 11 of the Workplace
Injury Rehabilitation and Compensation
20 Act 2013";
(d) in column 1 of item 18, for "Accident
Compensation Act 1985" substitute
"Workplace Injury Rehabilitation and
Compensation Act 2013";
25 (e) in column 3 of item 18, for "Part V of the
Accident Compensation Act 1985"
substitute "Part 8 of the Workplace Injury
Rehabilitation and Compensation Act
2013".
30 27 Owner Drivers and Forestry Contractors Act 2005
In section 14(3)(b), for "Accident Compensation
(WorkCover Insurance) Act 1993" substitute
"Workplace Injury Rehabilitation and
Compensation Act 2013".
571139B.I-17/9/2013 739 BILL LA INTRODUCTION 17/9/2013
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28 Police Assistance Compensation Act 1968
(1) In section 2(2A), after "Act 1985" insert
"but before 1 July 2014".
(2) After section 2(2A) insert--
5 "(2AB) The compensation referred to in subsection
(1), in respect of personal injury suffered on
or after 1 July 2014 is to be paid in
accordance with and subject to the
Workplace Injury Rehabilitation and
10 Compensation Act 2013 as if within the
meaning of that Act at the time the person so
suffered the personal injury--
(a) the person was a worker over the age of
21 years employed by the Crown at an
15 average weekly wage the amount of
which is determined under subsection
(2B); and
(b) the person suffered a personal injury
out of or in the course of employment
20 with the Crown.".
(3) In section 3, after "Act 1985" insert "or the
Workplace Injury Rehabilitation and
Compensation Act 2013".
29 Police Regulation Act 1958
25 (1) In section 85E(2)(a), after "Act 1985" insert
"or the Workplace Injury Rehabilitation and
Compensation Act 2013".
(2) In section 118L--
(a) in paragraph (a) of the definition of statutory
30 scheme insurer for "established under the
Accident Compensation Act 1985"
substitute "under the Workplace Injury
Rehabilitation and Compensation Act
2013";
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(b) in paragraph (a) of the definition of statutory
insurance scheme law, after "Act 1985"
insert "or the Workplace Injury
Rehabilitation and Compensation Act
5 2013".
30 Radiation Act 2005
In section 136(1)(e), for "established by section 18
of the Accident Compensation Act 1985"
substitute "under the Workplace Injury
10 Rehabilitation and Compensation Act 2013".
31 Road Safety Act 1986
(1) In section 57(9A), after "Act 1985" insert
", the Workplace Injury Rehabilitation and
Compensation Act 2013".
15 (2) In section 92(3)(cc)--
(a) for "Accident Compensation Act 1985"
substitute "Workplace Injury
Rehabilitation and Compensation Act
2013";
20 (b) for "239AAC" substitute "557".
32 Transport Accident Act 1986
(1) In section 3(1)--
(a) in the definition of employer
superannuation contribution, for
25 "section 5(1) of the Accident Compensation
Act 1985" substitute "section 3 of the
Workplace Injury Rehabilitation and
Compensation Act 2013";
(b) in the definition of self-insurer for
30 "Accident Compensation Act 1985"
substitute "Workplace Injury
Rehabilitation and Compensation Act
2013";
571139B.I-17/9/2013 741 BILL LA INTRODUCTION 17/9/2013
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(c) in the definition of worker, for "Accident
Compensation Act 1985" substitute
"Workplace Injury Rehabilitation and
Compensation Act 2013".
5 (2) In section 3(2)(c), after "Act 1985" insert
", the Workplace Injury Rehabilitation and
Compensation Act 2013".
(3) In section 11(e), after "Accident Compensation
Act 1985" insert "or the Workplace Injury
10 Rehabilitation and Compensation Act 2013".
(4) In section 12(1)--
(a) in paragraph (jb), for "section 23 of the
Accident Compensation Act 1985"
substitute "section 501 of the Workplace
15 Injury Rehabilitation and Compensation
Act 2013";
(b) in paragraph (jc), for "section 143A of the
Accident Compensation Act 1985"
substitute "section 392(2) of the Workplace
20 Injury Rehabilitation and Compensation
Act 2013".
(5) In section 13(5)--
(a) in paragraph (a). for "section 23 of the
Accident Compensation Act 1985"
25 substitute "section 501 of the Workplace
Injury Rehabilitation and Compensation
Act 2013";
(b) in paragraph (b), for "section 143A of the
Accident Compensation Act 1985"
30 substitute "section 392(2) of the Workplace
Injury Rehabilitation and Compensation
Act 2013".
(6) In section 27(3)(hb), after "Act 1985" insert ",
section 368 of the Workplace Injury
35 Rehabilitation and Compensation Act 2013".
571139B.I-17/9/2013 742 BILL LA INTRODUCTION 17/9/2013
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(7) In section 37(1)(g), after "Act 1985" insert
", the Workplace Injury Rehabilitation and
Compensation Act 2013".
(8) Insert the following heading to section 38A--
5 "Commission not liable where compensation
payable under Accident Compensation Act
1985 or Workplace Injury Rehabilitation and
Compensation Act 2013".
(9) In section 38A, after "Act 1985" insert "or the
10 Workplace Injury Rehabilitation and
Compensation Act 2013".
(10) In section 86(2)(c), after "Act 1985" insert "or the
Workplace Injury Rehabilitation and
Compensation Act 2013".
15 (11) In section 94(1), after "Act 1985" insert "or the
Workplace Injury Rehabilitation and
Compensation Act 2013".
(12) In section 94A(1), after "Act 1985" insert
"or section 369 of the Workplace Injury
20 Rehabilitation and Compensation Act 2013".
(13) In section 131(2)(c), after "Act 1985" insert
"or the Workplace Injury Rehabilitation and
Compensation Act 2013".
33 Victorian Civil and Administrative Tribunal Act
25 1998
After Part 23 of Schedule 1 insert--
"PART 24--WORKPLACE INJURY
REHABILITATION AND COMPENSATION
ACT 2013
30 104 Tribunal may request information about a
determination
(1) The Tribunal may request the Victorian
WorkCover Authority to provide the
Tribunal with any information held by
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the Authority that relates to an
application made by an employer for a
review of a reviewable decision or a
determination made by the Authority.
5 (2) The Authority must comply with a
request under subclause (1).
105 Compulsory conference in WorkCover
proceedings
In a proceeding for review of a
10 reviewable decision or a determination
by the Victorian WorkCover Authority,
the Tribunal or the principal registrar
may require the parties to attend a
compulsory conference only with the
15 consent of the Authority.".
34 Victorian Managed Insurance Authority Act 1996
In section 24(2), in the definition of Victorian
WorkCover Authority, after "Act 1985" insert
", the Workplace Injury Rehabilitation and
20 Compensation Act 2013".
35 Victoria State Emergency Service Act 2005
(1) In section 3, for "established under the Accident
Compensation Act 1985" substitute "under the
Workplace Injury Rehabilitation and
25 Compensation Act 2013".
(2) In section 47--
(a) in subsection (3), after "Act 1985" insert
"or the Workplace Injury Rehabilitation
and Compensation Act 2013";
30 (b) in subsection (6), after "Act 1985" insert
"or the Workplace Injury Rehabilitation
and Compensation Act 2013";
571139B.I-17/9/2013 744 BILL LA INTRODUCTION 17/9/2013
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(c) in subsection (7), after "Act 1985" insert
"or the Workplace Injury Rehabilitation
and Compensation Act 2013";
(d) in subsection (8), after "Act 1985" insert
5 "or the Workplace Injury Rehabilitation
and Compensation Act 2013";
(e) in subsection (9), after "Act 1985" insert
"or the Workplace Injury Rehabilitation
and Compensation Act 2013";
10 (f) in subsection (12)--
(i) for "established under Division 1A of
Part III of the Accident Compensation
Act 1985" substitute "under the
Workplace Injury Rehabilitation and
15 Compensation Act 2013";
(ii) for "section 5(1) of the Accident
Compensation Act 1985" substitute
"section 3 of the Workplace Injury
Rehabilitation and Compensation
20 Act 2013".
(3) In section 50, for "and that Act applies" substitute
"or the Workplace Injury Rehabilitation and
Compensation Act 2013 and those Acts apply".
(4) In section 51, after "Act 1985" insert "or the
25 Workplace Injury Rehabilitation and
Compensation Act 2013".
(5) In section 52(2), for "the Accident
Compensation Act 1985" substitute
"the Workplace Injury Rehabilitation and
30 Compensation Act 2013".
571139B.I-17/9/2013 745 BILL LA INTRODUCTION 17/9/2013
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36 Wrongs Act 1958
(1) In section 24AAA, after "Act 1985" insert "or the
Workplace Injury Rehabilitation and
Compensation Act 2013".
5 (2) In section 24AG(2)(b), after "Act 1985" insert
"or the Workplace Injury Rehabilitation and
Compensation Act 2013".
(3) For section 28C(2)(c) substitute--
"(c) an award to which Part IV of the Accident
10 Compensation Act 1985 or Part 7 of the
Workplace Injury Rehabilitation and
Compensation Act 2013 applies;".
(4) In section 28LB--
(a) in paragraph (a) of the definition of approved
15 medical practitioner, after "Act 1985" insert
"or section 54(1)(b) of the Workplace
Injury Rehabilitation and Compensation
Act 2013";
(b) in the definition of Convenor, for "section 63
20 of the Accident Compensation Act 1985"
substitute "section 537 of the Workplace
Injury Rehabilitation and Compensation
Act 2013";
(c) in the definition of Medical Panel, for
25 "Accident Compensation Act 1985"
substitute "Workplace Injury
Rehabilitation and Compensation Act
2013".
(5) In section 28LC(2)(c) after "Act 1985" insert
30 "or Part 5 of the Workplace Injury
Rehabilitation and Compensation Act 2013".
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(6) In section 28LI, for subsection (4) substitute--
"(4) Unless subsection (5) applies, the guidelines
referred to in subsections (1), (2) and (3) are
the guidelines referred to in sections 64, 65
5 and 66 of the Workplace Injury
Rehabilitation and Compensation Act
2013.".
(7) In section 28LK(2)(a) for "section 91(4) of the
Accident Compensation Act 1985" substitute
10 "section 63 of the Workplace Injury
Rehabilitation and Compensation Act 2013".
(8) In section 28LZ(3), for "Part III of the Accident
Compensation Act 1985" substitute "Part 12 of
the Workplace Injury Rehabilitation and
15 Compensation Act 2013".
(9) For section 28LZL substitute--
"28LZL Operation of Panel provisions of the
Workplace Injury Rehabilitation and
Compensation Act 2013
20 (1) Except as provided in subsection (2), and
subject to any inconsistency of context or
subject-matter, Division 2 of Part 12 of the
Workplace Injury Rehabilitation and
Compensation Act 2013 applies to a
25 Medical Panel appointed for the purposes of
this Part.
(2) Division 3 of Part 6 and section 270 and 540
of the Workplace Injury Rehabilitation
and Compensation Act 2013 do not apply
30 to or in relation to--
(a) the procedure of a Medical Panel under
this Part; or
(b) a matter referred to a Medical Panel
under this Part.".
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(10) In section 28M, in the definition of claim, after
"Act 1985" insert "or the Workplace Injury
Rehabilitation and Compensation Act 2013".
(11) In section 45(1)(b), after "Act 1985" insert
5 "or Part 5 of the Workplace Injury
Rehabilitation and Compensation Act 2013".
(12) In section 69(1)(b), after "Act 1985" insert
"or Part 5 of the Workplace Injury
Rehabilitation and Compensation Act 2013".
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Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
571139B.I-17/9/2013 749 BILL LA INTRODUCTION 17/9/2013
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