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ACCIDENT COMPENSATION AMENDMENT BILL 2009

   Accident Compensation Amendment
               Bill 2009

                         Introduction Print

               EXPLANATORY MEMORANDUM


                                  General
The Bill will amend the Accident Compensation Act 1985 (the Act) and the
Accident Compensation (WorkCover Insurance) Act 1993.
The Bill updates the current legislation relating to accident compensation
by--
         ·    removing obsolete provisions;
         ·    updating provisions;
         ·    inserting new provisions to introduce reforms to the accident
              compensation scheme;
         ·    providing for improved and accessible benefits and better
              rehabilitation and return to work outcomes;
         ·    improving the operation of the legislation

                              Main Changes
The following is a summary of the main changes to the current Acts--
         ·    WORKERS' ENTITLEMENT TO COMPENSATION.
              The provisions in the Act that determine how pre-injury
              earnings are calculated are amended by clause 4 to double the
              period for which a worker or a deceased worker's dependants
              may receive weekly payments of compensation that take
              account of pre-injury overtime and shift allowances.
              The application of the scheme is extended to municipal
              councillors, while its application to outworkers in the textile
              industry and jockeys while competing in, or training for, mixed
              sports gatherings, is clarified. The operation of current section
              82(2A)--known as the "stress exclusion"--is also clarified and


561256                                1       BILL LA INTRODUCTION 9/12/2009

 


 

the types of management actions that may activate the exclusion is more clearly defined. Penalties in the form of a reduction in compensation payments will be introduced where the relevant injury was caused by the worker driving in the workplace while intoxicated by alcohol or other drugs. · ENSURING TIMELY ACCESS TO BENEFITS. Clauses 19, 20 and 21 provide for earlier decision making and provide a more proactive role for WorkSafe and self-insurers in managing claims. Clause 19 reduces the formalities for making a claim, by providing that a claim will now remain valid unless WorkSafe or the employer is unable to clarify any information omitted or to remedy a defect that relates to a material defect or omission. The clause also amends the process for lodging a claim for compensation, to provide that a claim for compensation in the form of weekly payments can be made by way of either serving a claim that states a ceased work date, or a claim that is accompanied or followed by a section 105 medical certificate. Clause 19 also provides for a more efficient claims process, by requiring WorkSafe and self- insurers to determine liability for claims for both weekly payments and medical and like services within 28 days of receipt of a claim, even in the absence of a section 105 medical certificate. Clause 20 introduces a 10 day time period in which employers will be required to forward the initial medical certificate to WorkSafe. However, payments of weekly benefits will not commence until the worker has provided a section 105 medical certificate. Clause 20 also amends the penalty that applies to employers who fail, without reasonable cause, to forward a claim for weekly payments within the required time frame of 10 days. · ANTI-DISCRIMINATION. Clause 23 protects injured workers and applicants for employment from discrimination by employers and prospective employers for pursuing claims for compensation or notifying of a workplace injury. The new discrimination provisions will generally align with the provisions prohibiting discrimination under the Occupational Health and Safety Act, with appropriate modifications to allow for the different compensation context within which such remedies are offered. Clause 23 broadens the range of conduct that is considered to be discriminatory in relation to the criminal offence for discrimination, provides a broader range of remedies for discriminatory conduct and provides workers 2

 


 

and applicants for employment with a right to request that WorkSafe bring a prosecution in relation to a breach of the anti-discrimination offence. Clause 23 also introduces a new civil action allowing workers (and applicants for employment) to bring a civil proceeding in the Industrial Division of the Magistrates' Court for an order against an employer or prospective employer who has engaged in discriminatory conduct. The anti-discrimination provisions are not intended to affect any return to work obligations under the Act or subordinate instruments made under the Act in relation to workers or employers. · BETTER INCOME REPLACEMENT. Clause 31 increases the proportion of pre-injury earnings that workers may receive in compensation. Clause 37 provides for workers who have received 52 weeks of compensation payments to also receive compensation in the form of superannuation contributions for as long as they continue to receive weekly payments. The contributions will be a percentage of their weekly payments. Clause 31 also provides for workers who have returned to work after being injured and no longer receive compensation to receive up to 13 weeks of weekly payments while recovering from any necessary subsequent surgery for that injury. Clauses 34 and 35 improve the administration and availability of compensation for workers who have returned to work for at least 15 hours per week and, because of their work- related injury, are unlikely to be capable of increasing their earnings. Clause 43 introduces a statutory right for an employer, who is not a self-insurer, to seek written reasons for the Authority's decisions to accept or reject liability for certain compensation claims. · TREATMENT EXPENSES. The Bill introduces a power for the Authority to issue guidelines identifying services for which prior approval should be sought before the service is provided. Failure to obtain prior approval of the service identified in the guidelines will not necessarily disentitle a service provider from payment for services rendered if the service provider can still demonstrate that the costs of the services were reasonable and compensable under the Act. The Bill also introduces a discretionary power for the Authority or self-insurer to require prior approval of costs which relate to purchase or 3

 


 

modifications to a car or home and relocation costs. Failure to obtain prior approval of these costs will, unless otherwise determined by the Authority or self-insurer, mean that the Authority or self-insurer is not liable to pay for those costs. The Bill also introduces a process to be followed for ceasing entitlement to compensation under sections 99(11) and (12) of this Act where the worker must be given at least 28 days written notice, including the reasons for giving the termination notice and the date the entitlement will cease. The Bill also repeals co-ordinated care programs from the date of commencement of Part 5, however co-ordinated care programs existing prior to commencement date will continue to run until expiry. The Bill also introduces a provision to enable the Governor-in-Council, by Order to fix limits on contributions to be made by workers towards the cost of supported accommodation, together with the definition of "supported accommodation". · LUMP SUM BENEFITS. Clause 54 aligns the maximum amount of lump sum benefits payable with the maximum amount available at common law for pain and suffering damages for workers with a serious injury. The new maximum amount will be $503 000 (indexed annually). The increase in lump sum benefits will apply to workers with a whole person impairment of greater than 80%, and will apply proportionately for workers assessed between 71% and 80% whole person impairment. Clause 54 also increases (by 10%), the amount payable to workers with accepted spinal impairments, and increases the lump sum benefit awarded for psychiatric impairments of 30% to 70%, to the same level of impairment benefit for a physical impairment (there is already parity for psychiatric and physical impairments greater than 70%). Further, clause 54 deems a date for gradual process injuries (injuries that arise through employment or because of the nature of employment incrementally over time) to apply in relation to the calculation of claims for lump sum benefits. · ACCESS TO JUSTICE FOR SERIOUSLY INJURED WORKERS. Clause 57 requires an authority to access medical information relevant to an application to accompany a serious injury application made by a worker under section 134AB or 135A. This authority will replace the current voluntary Form D authority. A worker's medical authority will effectively be revoked if the worker withdraws their serious 4

 


 

injury application, or the matter otherwise resolves. Clause 57 also amends the existing sections regarding the determination of whether party/party legal costs are payable, to provide that weekly payments received by a worker after the making of a statutory counter offer (which is part of the mandatory negotiation process for common law matters following the granting of a serious injury certificate to a worker) are to be disregarded for the purpose of determining payment of party/party legal costs. Clause 57 also clarifies that no finding made on an application for leave to bring proceedings for serious injury shall give rise to an issue estoppel. This means that if a worker is granted or awarded serious injury status for an injury, at any later common law damages trial relating to that injury all issues are be open to a defendant to contest, other than the worker's right to bring a damages claim. · Clauses 58 and 62 enable a worker's serious injury application under section 134AB, 135A or 135BA to continue (in particular circumstances) following the worker's death from a cause unrelated to the injury from which their claim arises. The legal representative of the deceased worker's estate will be able to continue the application on behalf of the worker's estate. However, the application can continue only where the worker had one or more dependants or had left a person or persons who at the time of the worker's death would have been wholly or partly dependant on the earnings of the worker, but for the incapacity of the worker due to the work-related injury or disease of the worker or the injury or disease which caused or materially contributed to the death of the worker. · PAYMENTS FOR FAMILY MEMBERS FOLLOWING WORK-RELATED DEATHS. The regime of benefits payable to the family of a worker who dies from a work-related injury will be expanded by several amendments. The maximum amount of lump sum compensation payable to the dependants of a deceased worker under section 92A is increased from $273 970 to $503 000. The Magistrates Court is empowered to order WorkSafe or a self insurer to pay the non dependant family members of a deceased worker , up to $30 000, where the worker has died leaving no dependants, and those persons have suffered financial hardship from the incursion of reasonable expenses as a result of the worker's death. The eligibility age for the dependent child weekly pension is increased from 21 to 25 years, where the recipient is 5

 


 

a full-time student. The same eligibility rule is to apply to full-time apprentices. Any child of a deceased worker who was unborn at the time of the worker's death is to be eligible for the same benefits as other dependent children of deceased workers. Weekly pensions payable to both dependent children and partners are to be indexed on an annual basis. Several other amendments will improve the efficiency of the claims process and ensure that family members of a deceased worker are in a position to receive benefits as soon as possible after the death. Clause 71 will introduce a new provisional payment regime, wherein WorkSafe or a self insurer may pay for the worker's medical and funeral costs or the family's counselling costs before it has determined liability for a proper claim for compensation. They may also pay the partner of a deceased worker a weekly pension for up to 12 weeks from the worker's death on the same provisional basis. The mandatory requirement that the court determine lump sum compensation claims under sections 92 and 92A will be removed, except where the claimant is a minor or a person with a disability or is unrepresented. Clause 68 amends current section 92A to deem a partner who resided with the deceased worker at the time of his or her death to have been dependent on the earnings of the deceased worker. This will remove the need for such partners to satisfy the current two-step eligibility test for benefits. · TRANSPARENCY IN DECISION-MAKING AND EFFICIENT RESOLUTION OF DISPUTES. Section 43 of the Act will be amended to remove the current limits on the Magistrates' Court jurisdiction to deal with disputes over statutory benefits. Division 1A will be amended to strengthen the governance structures of the Accident Compensation Conciliation Service, ensure that the Service operates in a transparent and accountable manner and expand the functions and powers of the Senior Conciliation Officer Section. A number of amendments to Divisions 2 and 3 will improve the efficiency and fairness of both the conciliation and medical panel processes. Clause 91 introduces a new Division 3AA in Part IV of the Act. The new Division 3AA provides for a legislated review process which provides an employer the right to seek internal review by the Authority of its agent's decision to accept a claim 6

 


 

for compensation on two grounds. The two grounds for review are-- · the worker was not a worker as defined under this Act; or · the employer was not the correct employer of the worker at the time of the worker's injury or death. The two grounds for review do not apply to questions of whether the worker was injured in the course of employment. The outcome of the internal review process will be limited to premium impacts and will not affect any entitlements already granted to a worker as a result of the agent's acceptance of the claim for compensation. During the review and appeal process, the employer's liabilities will continue and the worker will continue to receive the entitlements. If a decision is made by the Authority to overturn its agent's acceptance of the claim, or the Supreme Court decides against the Authority's confirmation of its agent's decision, the worker will be given a period of notice prior to the cessation of the entitlements. If the employer appeals the Authority's decision to confirm its agent's acceptance of the claim and the worker is joined as a party in the legal proceedings, the Authority will be liable for the worker's reasonable legal costs. · EMPLOYER PREMIUMS. Amendments to the calculation of premium and the treatment of related businesses under the Accident Compensation (WorkCover Insurance) Act 1993 further harmonise the legislation with the Payroll Tax Act 2007 and workers compensation legislation in New South Wales. Penalties for promoting, participating in or benefitting from premium avoidance schemes are increased and WorkSafe's ability to collect unpaid premium is strengthened. Amendments to the Accident Compensation (WorkCover Insurance) Act 1993 will establish a formal scheme for the review of decisions about the premium payable by an employer. 7

 


 

· RECOVERIES. Clause 121 effectively prohibits the use of "hold harmless" clauses between employers and third parties by rendering void a term of any contract between a third party and an employer that requires the employer or has the effect of requiring the employer to indemnify the third party in respect of any liability that the third party has or may have in relation to the recovery provisions under section 138 of the Act. · SELF INSURANCE. Clause 126 amends various elements of the procedures and requirements relating to self-insurers, in particular regarding the process for employers who become self-insured and for self-insurers who cease to be self-insured. The main changes in clause 126 are as follows-- · WorkSafe will have flexibility in rewarding higher performing self-insurers, to allow subsequent approvals to be for a period of six years. · Introduction of a fee for the pre-application eligibility process for employers who want to apply to become a self-insurer, and modification of the formula for the application fee to enable an estimate of remuneration to be used in circumstances where the employer has no remuneration for the previous year. · WorkSafe will have a discretion to extend the term of approval for self-insurers who undergo corporate restructures, such as the take-over or divesting of subsidiary companies. · Self-insurers to be able to acquire the liability for and management of the "tail claims" (those claims relating to injuries incurred prior to an employer becoming self- insured or taken over by a self-insurer) of an acquired company that becomes a subsidiary of the self-insurer. · New self-insurers may elect to assume responsibility for the management and liabilities of their worker's tail claims (claims relating to injuries or deaths incurred before the date the employer's approval as a self-insurer commenced). New self-insurers that elect to assume tail claims liabilities will be required to hold a bank guarantee equivalent to 150% of the amount of the assessed tail claims (adopting the approach endorsed by 8

 


 

the national Heads of Workers Compensation Authorities). · General alignment of the conditions for all self-insurers that cease to be self-insured, bringing the requirements for those self-insurers that return to scheme-insurance into alignment with those that exit self-insurance to become self-insured under Comcare. Clause 126 has a delayed commencement date of 1 July 2010. This is because a number of the amendments in clause 126 can only take practical effect at the commencement of a new financial year. It is operationally expedient for self-insurers and the Authority that all amendments that relate only to self- insurers commence on the same date. · RETURN TO WORK. A new Part VIIB of the Act sets out the respective obligations of employers and workers in returning workers to work as soon as safe and possible. They are similar to the existing obligations but are more simply expressed and performance based. A failure by an employer to comply with an obligation will remain an offence, and higher penalties will apply to bodies corporate. Part VIIB also revises the powers of return to work inspectors to align more closely with those of inspectors appointed under the Occupational Health and Safety Act 2004. Return to work inspectors are to be empowered to issue return to work improvement notices to employers. Failure by an employer to comply with a return to work improvement notice is an offence. A decision to issue, vary or cancel a return to work improvement notice or to certify that matters the subject of a return to work improvement notice have been remedied, is reviewable internally and by the Victorian Civil and Administrative Tribunal. A person who considers that an offence against the new Part VIIB has occurred may request WorkSafe to bring a prosecution if it has not already done so within 6 months of the offence occurring. If WorkSafe decides not to bring a prosecution, it may be requested to refer the matter to the Director of Public Prosecutions. Workers will be encouraged to meet their return to work obligations through the administration of weekly compensation payments. If a worker fails to meet an obligation, the Act 9

 


 

currently provides for the worker's entitlement to weekly payments to be ceased and determined. Preliminary stages will be introduced so that the worker will first receive notice that the payments will be suspended, following which the payments will be suspended for a period of up to 28 days. If the worker complies with the obligation during the notice period, the payments are not suspended; if the worker complies with the obligation during the period of suspension, the payments are resumed. If the worker fails to meet the obligation by the end the period of suspension, the payments may be terminated or, in particular circumstances, ceased and determined. Current penalties for workers who fail to attend an interview when required, or to notify WorkSafe, the self-insurer or an employer that they have returned to work, are repealed. · PENALTIES. Part 15 updates the penalties for offences under the Act following a review of the adequacy of the penalties under the Act and the Accident Compensation (WorkCover Insurance) Act 1993. It repeals the general penalty provision in section 251 of the Act in favour of specific maximum penalties for natural persons and body corporates in the Act and in the Accident Compensation (WorkCover Insurance) Act 1993. All the offences under the Act remain summary offences. It also introduces discretionary administrative actions of enforceable undertakings and adverse publicity orders. Clause Notes PART 1--PRELIMINARY Clause 1 sets out the purpose of the Bill. Clause 2 specifies when the provisions of the Bill come into operation. PART 2--WORKERS' ENTITLEMENT TO COMPENSATION Clause 3 inserts several new definitions into section 5(1) of the Accident Compensation Act 1985 as follows-- drive is defined to include being in control of or in charge of a motor vehicle. This incorporates the meaning of drive in section 3 of the Road Safety Act 1986 (RSA) (wherein drive is defined to include being in control of a motor vehicle) and driver in section 3 of the Transport Accident Act 1986 (TAA) 10

 


 

(wherein driver in relation to a motor car or motor vehicle is defined to include a person who is in charge of the motor car or motor vehicle). motor vehicle and transport accident are defined to have the same meaning as in section 3(1) of the TAA. These definitions are used in new sections 82A to 82C which set up a regime of compensation penalties for workers who are injured through drink or drug driving in the workplace (see clause 15). These provisions are activated when the worker is convicted of a drink or drug driving offence under the RSA or the Crimes Act 1958. The compensation penalties are similar to those in the transport accident scheme. That is why the definitions align with those in the RSA and the TAA. industrial award is defined with reference to the Fair Work Act 2009 of the Commonwealth and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth. The definition of employer superannuation contributionis also amended as a consequence of the insertion of the new definition of industrial award. Clause 4 amends section 5A of the Act to extend the period for which the worker or a deceased worker's dependants will be compensated for loss of earnings for overtime and shift work from 26 weeks to 52 weeks. Paragraph (e) is a consequential amendment upon the repeal of section 93(CA) and (CB) by clause 31. Clause 5 amends the calculation of pre-injury earnings for overtime and shift work to only take account of weeks during the relevant pre-injury period that the worker worked or was on paid annual leave Clause 6 inserts a new section 5A(2A) in the Act which specifies that the pre-injury average weekly earnings of a worker who is promoted or appointed to a higher paid position during the 12 months immediately before the injury are calculated from the date that the promotion or appointment takes effect. Clause 7 increases the deemed pre-injury average weekly earnings of specified workers who were injured before the age of 21, for the purpose of calculating their weekly compensation payments from the time they reach that age. The clause also increases the deemed pre-injury average weekly earnings of workers who were full time students at a post- secondary education institution at the time of the injury, for the 11

 


 

purpose of calculating their weekly compensation payments from the time that they would have completed the course of studies in which they were enrolled. Clause 8 increases the deemed pre-injury average weekly earnings of a worker who was a full time school student at the time of the injury, for the purpose of calculating their weekly compensation payments from the time that the worker would have completed secondary school. Clause 9 amends section 14(3) of the Act to remove the parenthetical phrase that currently excludes municipal councillors from the deemed employment provision that applies to public servants, Ministers, Members of Parliament, judicial officers and certain other public officials. This amendment is related to the introduction, by clause 10, of section 14AA, a new employment deeming provision for councillors. Clause 10 inserts a new section 14AA in the Act. This has the effect of deeming a local councillor--while he or she is carrying out his or her duties as a councillor--to be a worker, for the purposes of the Act. The local council of which that councillor is a member is deemed to be that councillor's employer. The new section adopts the definitions of Council and Councillor in section 3(1) of the Local Government Act 1989 (LGA). As Councillors carry out diverse activities within their communities, both as private citizens and as Councillors, in some instances it may be difficult to ascertain when a Councillor is (or is not) carrying out his or her duties of offices. Thus, Ministerial Guidelines issued pursuant to section 14(4) of the Act will outline when a Councillor should not be taken to be performing duties of office for the purposes of new section 14AA. Such guidelines are intended to provide further certainty as to when a Councillor will or will not be covered by the scheme. Clause 11 inserts two new sections in the Act to clarify the employment status of riders and drivers in certain horse, pony and harness races (section 16A) and outworkers in the textile industry (section 17). Section 16A Current section 16(1) of the Act specifically excludes the liability of the Authority, the employer or self insurer to pay compensation to a sporting contestant who is injured while he or she is participating as a contestant in a sporting or athletic 12

 


 

activity; training or preparing for that activity; and travelling between home and the place of that activity. However, section 16(3) deems, by way of an exception to the general rule laid out in section 16(1), jockeys in races organised by Racing Victoria to be a deemed worker for the purposes of the Act. This ensures that jockeys are protected by the scheme if injured while racing. However, not all horse races held in Victoria are organised by Racing Victoria. Other racing bodies (e.g. Victorian Arabian Jockey Club) may organise horse, pony or harness races as part of a mixed sports gathering as defined in section 3(1) of that Act, provided they have the required permission under section 19(1) of the Act. However, current section 16(3) is ambiguous as to whether riders and drivers participating in such events would, if injured, be covered by the scheme. New section 16A is intended to clarify that a rider or driver participating in a mixed sports gathering is deemed to be a worker while so participating. The club, association or body who organised the mixed sports gathering is the corresponding deemed employer. New section 17--outworkers The current section 5(1) definition of worker makes it clear that an outworker who is employed under a contract of service will be a worker for the purposes of the Act, and therefore covered by the scheme if injured in the course of that employment. However, as identified by Peter Hanks QC in the Accident Compensation Act Review Final Report, August 2008 (paragraph 2.79), in reality very few outworkers are engaged through a contract of service. Rather they are engaged through contracts for services (such as contracts to produce or finish an amount of goods). In such a case, the section 5(1) definition does not apply to the outworker, and he or she must rely on the contractor deeming provisions in sections 8 and 9. As Hanks further identified, sections 8 and 9 are overly complex and difficult to apply to the work arrangements of most outworkers (paragraphs 2.76 to 2.108). This may result in an outworker being unfairly left without coverage under the scheme, in the event of his or her sustaining a work-related injury. New section 17(1) is intended to implement Hanks' recommendation (recommendation 4, paragraphs 2.99-100) by clearly deeming an outworker, even if he or she is working alone or with family members in an incorporated or unincorporated business structure, to be a worker for the 13

 


 

purposes of the Act. The corresponding deemed employer is the person who engaged the outworker. Note, section 17 adopts the meanings of outwork and outworker in section 3 of the Outworkers (Improved Protection) Act 2003. Sections 17(3) to (5) elaborate on the meaning of family entity for the purposes of section 17. The intention is to ensure coverage of outworkers who are working in a one-person or family business, irrespective of the business structure. A family entity is one in which an outworker and or members of his or her family--that is the relations cited in the section 17(5) definition of member of the outworker's family--have a "controlling interest" as per the meaning given in section 17(3). The latter mirrors the concept of "controlling interest" in section 66(3) of the Accident Compensation WorkCover Insurance Act 1993. Clause 12 revises current section 82(2A) of the Act, commonly known as the "stress exclusion", to clarify its wording and intended operation as follows-- · The current terminology used to describe the relevant injury is "injury consisting of an illness or disorder of the mind caused by stress". This is replaced by a reference to "mental injury" which is consistent with the current definition of injury in section 5(1) of the Act; · As currently drafted, the effect of the exclusion applying is that "compensation is not payable". This is incorrect. The effect is that the worker (or in the case of the death of the worker, the worker's dependants) will have no entitlement to compensation; · Clause 14 inserts an inclusive definition of a new term management action which is employed in the revised section 82(2A). Management action includes the actions listed in paragraphs (a) to (n). Several actions (e.g. transfer, demotion, discipline, redeployment, retrenchment and dismissal) are included in current paragraph 82(2A)(a) while others (e.g. appraisal, counselling, training, investigation) have been inserted in the new definition to reflect contemporary management practices; 14

 


 

· New paragraphs 82(2A)(a), (b) and (c) have, in essence, the same effect as current paragraphs 82(2A)(a) to (c) but each provision has been revised to employ the new definition of management action. Thus, the exclusion in section 82(2A) will be activated if a worker sustains a mental injury whose whole or predominant cause is-- · a management action taken by or on behalf of the worker's employer on reasonable grounds and in a reasonable manner then; or · a decision of the employer on reasonable grounds to take, or not to take, any reasonable management action; · any expectation by the worker that the employer would take, or not take, any management action, or would make a decision to take, or not take, any management action (as defined). This includes an expectation that was reasonably or unreasonably founded. This also includes whether the "expected" management action/decision was intended to be taken/made, or not intended to be taken/made; · New section 82(2A)(d) applies where a Councillor is deemed, pursuant to new section 14AA as inserted by clause 10, to be a worker of the Council of which he or she is a member. The effect of the provision is that if the Councillor's injury is a mental injury that was wholly or predominantly caused by the making of an application under section 81B of the Local Government Act 1989 (LGA) regarding the alleged misconduct against a Councillor, then the Councillor will not be entitled to any compensation. Pursuant to section 81B, LGA, the relevant Council, a Councillor or a group of Councillors may apply to a Councillor Conduct Panel to make a finding of misconduct against a Councillor, or to authorise an application to the Victorian Civil and Administrative Tribunal for a finding of serious misconduct; 15

 


 

· In State of Victoria v Leck [2009] VSC 92, the Supreme Court read the "or" between the current paragraphs 82(2A)(a), (b) and (c) disjunctively. The words "by one or more of the following--" in revised section 82(2A) are intended to clarify that the exclusion will be activated if one or more relevant management action, decision or expectation--or any combination of these factors--is the whole or predominant cause of the mental injury. Clause 13 makes several further amendments to section 82 of the Act. Subclauses (1) and (2) make technical corrections to section 82(2B), (2C) and (3). In each provision, the reference to "compensation is not payable" is replaced by "there is no entitlement to compensation". This accurately reflects the legal consequence (i.e. no entitlement to compensation) of any of those provisions, when it applies to a claim for compensation. Subclause (3) replaces the current serious and wilful misconduct provisions of sections 82(4) and (4A) with a new section 82(4). These changes are consequential on the introduction, by Clause 15, of new sections 82A to 82D which provide for targeted compensation penalties where the injury is attributable to the worker's commission of a drink or drug driving related offence in road safety legislation. Section 82(4A) is no longer required as new section 82C will have the same effect. That is, section 82(4A) is redundant. Revised section 82(4) retains the effect of the current provision, namely that if the injury is attributable to the worker's serious and wilful misconduct, there is no entitlement to compensation in respect of that injury. The term "serious and wilful misconduct" remains undefined in the Act but the parenthetical phrase in new section 82(4) makes it clear that it includes, but is not limited to, being under the influence of intoxicating liquor or drug. The revised provision also clarifies that the legal effect of serious and wilful misconduct is to negate the worker's entitlement to compensation, not merely to negate payments of compensation. Currently section 82(5) states that the disentitling effect of section 82(4) will not apply where the injury results in the worker's death or serious and permanent disablement. The term "serious and permanent disablement" is not defined in the Act, and is an ambiguous concept in practice. Subclause (4) thus replaces "serious and permanent disablement" with "severe injury", which is a term defined in new section 82(10) inserted 16

 


 

by clause 14. The amendment will also align section 82(5) with new sections 82A(4), 82B(3) and 82C(2). These provisions exclude the new compensation penalties (by way of weekly payment reductions) for drink and drug driving in cases of severe injury or death. Clause 14 inserts three new definitions applicable to section 82 of the Act only. The first new definition is of management action, which is employed in section 82(2A), the stress exclusion. This has been explained in the notes for clause 12 which revises section 82(2A). The other two new definitions of severe injury and permanent blindness are applicable to sections 82A, 82B and 82C (see clause 15), the new drink and drug driving weekly payment reductions as well as to section 82, the serious and wilful misconduct exception (as revised by clause 13). Thus, a worker will not have his or her compensation in the form of weekly payments reduced under section 82A or 82B, or be disentitled to compensation under section 82C, or under section 82(4), if the worker's injury is a severe injury. The term severe injury is defined in detail to mean a range of very serious injuries that leave the worker with a significant permanent disability. This definition is similar to that contained in section 3(1) of the TAA and section 5(1) of the Transport Accident Regulations 2007 (TAR). Note, severe injury is defined to include permanent blindness, which is separately and precisely defined in new section 82(10) to aid interpretation. The definition of permanent blindness is virtually identical to that in section 5(2) of the TAR. Clause 15 introduces a new and targeted penalty regime for workers who sustain injury while driving with any concentration of alcohol in their blood or breath or any concentration of a prescribed illicit drug in contravention of the Road Safety Act 1986 (RSA). Under new section 82A(1), a worker who is injured while driving with a blood or breath alcohol concentration of 0·05 or more and up to 0·12, and who is convicted of a drink-driving offence under the RSA will have his or her weekly payments of compensation reduced by one-third for a period of 130 weeks. Section 82A(2) recognises that under the RSA, certain types drivers--including learner and probationary drivers, truck drivers and taxi drivers--are required to maintain a zero blood or breath alcohol level at all times. Thus, under section 82A, the one-third reduction to weekly payments will apply if the 17

 


 

blood or breath alcohol concentration is more than zero and up to 0·12. For all worker-drivers, the penalty reduction will increase to two-thirds if the worker's blood or breath alcohol concentration was 0·12 or more and up to 0·24. The Authority or a self insurer will not be able to start reducing a worker's weekly payments pursuant to section 82A unless and until it obtains evidence that the worker has been convicted, or found guilty, in the criminal process of the relevant road safety offence, and it has given the worker the required notice under new section 114BA as inserted by clause 16. Thus, under new section 82B, a worker who is injured while driving with any level of a prescribed illicit drug (defined in section 3(1), RSA to include amphetamines and cannabis) and who is convicted of a drug-driving offence under the RSA will have his or her weekly payments of compensation reduced by one-third for a period of 130 weeks. As for section 82A, the Authority or a self insurer will not be able to start reducing a worker's weekly payments pursuant to section 82B unless and until it obtains evidence that the worker has been convicted, or found guilty, in the criminal process of the relevant road safety offence, and it has given the worker the required notice under new section 114BA. New section 82C has the effect of disentitling a worker to compensation where the injury was attributable to his or her commission of certain serious drink-driving, or drug-driving, related offences under the RSA or the Crimes Act 1958. The effect of section 82C is the same as the current sections 82(4) and (4A): see notes to clause 13. It will be noted that section 82C contains the same offences as current section 82(4A), as well as new offences related to drug driving in the RSA and to dangerous driving in the Crimes Act 1958. The effect of new section 82D is that if a worker's weekly payments are reduced on the grounds of a conviction, and that conviction is later overturned on appeal, the Authority or a self insurer must pay to the worker the compensation payments he or she would have been entitled to had the initial conviction not been made, plus interest. Clause 16 inserts new section 114BA in the Act. This provision requires the Authority or a self-insurer to give the worker written notice before it can reduce a worker's weekly payments under section 82A or 82B, or stop payments of compensation under section 82C. This is intended to ensure fairness to the worker. 18

 


 

Clause 17 inserts new sections 239AAA, 239AB and 239AAC in the Act to allow the Authority to obtain the necessary information from the agencies who hold it, namely Victoria Police, the Roads Corporation (VicRoads) and the courts. Only information that is necessary to assessing the worker's entitlement to compensation will be obtained, and will be available to the Authority on a case by case basis only. The disclosure, collection and use of the information will be subject to interagency confidentiality agreements as well as existing privacy laws, standards and protocols (e.g. in the case of police information, those issued by the Commission for Law Enforcement and Data Security). The evidentiary provisions also extend to evidence that may be necessary for the Authority to assess whether a worker engaged in criminal behaviour that might constitute serious and wilful misconduct under section 82(4). Clause 18 amends section 92(3), of the Road Safety Act 1986 to expressly authorise VicRoads, to disclose information to the Authority, where the Authority has requested it to do so under section 239AAC. PART 3--ENSURING TIMELY ACCESS TO BENEFITS Clause 19 amends section 103 of the Act. Subclause (1) amends section 103 as follows-- New section 103(1) restates current section 103(1)(a). New section 103(2) amends the process for lodging a claim for compensation in the form of weekly payments. A claim for compensation in the form of weekly payments can be made by way of serving or giving to an employer or self-insurer, or lodging on the Authority the following-- · a claim form that states a ceased work date (whether or not accompanied by a section 105 medical certificate) , or · a claim form that does not include a ceased work date but is accompanied by a section 105 medical certificate, or · a claim form that does not include a ceased work date but is subsequently followed by a section 105 medical certificate in relation to the injury that is the subject of the claim. 19

 


 

New section 103(3) removes the anomalous requirements that a deceased worker's dependents must provide a medical authority, and that the authority authorises the release of medical information to a "Conciliation Officer". The reference to Conciliation Officers is removed because the medical authority on the current approved claim form does not provide for release of such information to Conciliation Officers, as Conciliation Officers already have access to such information under the broad investigative powers provided under section 56 of the Act. New section 103(4) provides that weekly payments are only payable in relation to a claim for compensation in the form of weekly payments if the claim was accompanied by a medical certificate under section 105 or, if it was not accompanied by a medical certificate under section 105, then at such time as a medical certificate under section 105 has been given to or served on the employer or self-insurer or lodged with the Authority in support of the claim. New section 103(4A) restates current section 103(1)(c) of the Act. New section 103(4B) provides that a worker can give, serve or lodge a claim for compensation by any means specified in Ministerial guidelines. New section 103(4C) introduces a power for the Minister to make guidelines specifying the manner and form in which a claim for compensation may be given, served or lodged. New section 103(4D) requires guidelines made under subsection (4A) to be published in the Government Gazette and on a Government Internet website. New section 103(4E) requires an employer or self-insurer to acknowledge in writing that it has received a claim from the worker, and requires the Authority to acknowledge in writing that it has received a claim from the worker if the worker has lodged a claim directly on the Authority. New section 103(4F) provides that a worker may notify the Authority that a claim for weekly payments has been given to the employer only by lodging a copy of the claim form together with a section 105 medical certificate on the Authority. New section 103(4G) reduces the formalities for making a claim, by providing that a claim will remain valid unless the Authority or the employer (including a self-insurer) is unable to clarify any information omitted or is unable to remedy a defect that relates to a material defect or omission. 20

 


 

New section 103(4H) provides that a claim that contains a material defect, omission or irregularity that is not within the knowledge of the Authority or the employer (including a self- insurer) is deemed not to have been made, if it is returned by the Authority or a self-insurer within 14 days after the claim being given to the employer or self-insurer, together with a notice stating the particular defects, omission or irregularities. The employer is not authorised to return a claim. Subclause 19(2) makes further amendments to section 103 as a consequence of the amendments in clause 19. Clause 20 amends sections 105 to 108 of the Act. Subclause 20(1) amends section 105(1) as a consequential amendment to clause 19. Subclause 20(2) amends section 105(4) as a consequential amendment to clause 19, and replaces the reference to "County Court" with a reference to "court". Subclause 20(3) amends section 108(1) by introducing a 10 day time period in which employers are required to forward a section 105 medical certificate (in relation to an injury that is the subject of a concurrent or earlier claim form) to the Authority. It also replaces the requirement that an employer must forward a claim for medical and like services under section 99 that is under the employer's excess within 10 days, if the employer rejects the claim, with a requirement that an employer must forward these same claims within 10 days, if the employer has not paid or will not pay the excess on the claim unless instructed to do so by the Authority. This is a consequential amendment to clause 19. Subclause 20(4) repeals section 108(2); removes the requirement for an employer to accept or reject a claim for weekly payments. As a result, it confirms that only the Authority or a self-insurer has the authority to accept or reject a claim. Subclause 20(5) amends the penalty in section 108(4) that applies to employers who fail, without reasonable cause, to forward a claim for weekly payments within the required time frame of 10 days. The penalty will now apply from the date the claim for weekly payments and/or section 105 medical certificate (whichever is the later) is served by the worker until the date the claim or section 105 medical certificate (whichever is the later) is received by the Authority. 21

 


 

Clause 21 substitutes section 109 of the Act with a new section. New section 109(1) provides that claims for weekly payments will be deemed to have been accepted within 28 days of receipt by the Authority or a self-insurer of a relevant section 105 medical certificate that is either given concurrently with the claim or at a later date. In the absence of a medical certificate, a claim cannot be deemed to be accepted. New section 109(2) requires the Authority and self-insurers to notify a worker in writing of a decision to accept or reject liability for claims for both weekly payments and medical and like services, within 28 days of receipt of the claim, even in the absence of a section 105 medical certificate. However, in the absence of a medical certificate, a claim cannot be deemed to be accepted. New section 109(3) requires the Authority and self-insurers to provide a statement of reasons to a worker in relation to any decision to reject a claim for compensation in the form of weekly payments or for compensation for medical and like services under section 99 of the Act. New section 109(4) amends section 109(1A)(a) of the current Act as a consequential amendment to clause 19. It provides that if a worker notifies the Authority of a claim under new section 103(4D), and the Authority subsequently receives from the employer the claim form and relevant section 105 medical certificate within 10 days, and the Authority fails to give notice of a decision to accept or reject the claim within 28 days after the Authority receives the claim and medical certificate, the claim is deemed to have been accepted and the Authority must pay weekly payments of compensation to the worker. New section 109(5) replaces section 109(1A)(b) of the current Act and is a consequential amendment to clause 19. It provides that if a worker notifies the Authority of a claim under new section 103(4D) by providing a copy of both the claim form and the section 105 medical certificate to the Authority, and the Authority does not receive the claim from the employer within 10 days, and the Authority fails to give notice of a decision to accept or reject the claim within 39 days after the Authority receives the notice of the claim, the claim is deemed to have been accepted and the Authority must pay weekly payments of compensation to the worker. A 39 day period applies in this instance, to provide an allowance for the 10 day period in which the employer may wait before forwarding the claim to the Authority. 22

 


 

New section 109(6) replaces section 109(1B) of the current Act and is a consequential amendment to clause 19. It provides that if the Authority receives a claim for compensation in the form of weekly payments that is accompanied by a section 105 medical certificate from an employer more than 28 days after the expiry of the 10 day period in which an employer is required to forward a claim and section 105 medical certificate to the Authority (and the claim has not been rejected by the Authority) the claim is deemed to have been accepted and the Authority must pay compensation in the form of weekly payments to the worker. New section 109(6) restates section 109(3) of the current Act. New section 109(8) restates section 109(4) of the current Act. Clause 22 repeals section 242(2) and (3) of the Act, being the offence provisions that prohibited employers from refusing to receive a claim for compensation and dismissing a worker from employment because the worker has given notice of an injury, taken steps to, given or attempted to give a claim for compensation or complied with a request under sections 239 or 240. The substance of this section is replaced and expanded by Clause 23. Clause 23 inserts a new section 242AA in the Act. New section 242AA(1) restates the offences in section 242(2) and (3) of the current Act and increases the penalty for employers and prospective employers who engage in discriminatory conduct, to 240 penalty units for a natural person and 1200 penalty units for a body corporate. New section 242AA(2) sets out the types of conduct by an employer in relation to a worker that will constitute "discriminatory conduct" for the purposes of the criminal offence anti-discrimination provisions. Discriminatory conduct occurs if the employer-- · dismisses, or threatens to dismiss, a worker from employment; or · alters, or threatens to alter, the position of a worker to the worker's detriment; or · treats a worker less favourably than another worker in relation to promotion or re-employment. 23

 


 

New section 242AA(3) sets out the reasons for carrying out the discriminatory conduct against a worker that will, if the reason is the dominant reason for the conduct, constitute a prohibited reason for the purposes of the criminal offence. A prohibited reason will arise if the dominant reason is because the worker-- · has given the employer or any other employer notice of an injury; or · has taken steps to pursue a claim for compensation against the employer or any other employer; or · has given, or attempted to give, a claim for compensation against the employer or any other employer, the Authority or a self-insurer; or · has complied with a request made under section 239 or 240 (to furnish the Authority with information or access to books, or to give evidence in relation to determining whether any of the provisions in the Act have been breached or in relation to an inquiry into ascertaining any liability or entitlement under the Act). New section 242AA(4) sets out the types of conduct by a prospective employer in relation to a job applicant that will constitute "discriminatory conduct" for the purposes of the anti-discrimination provisions, being if the prospective employer-- · refuses or fails to offer employment to an applicant for employment; or · in offering, or refusing to offer, terms of employment, treats an applicant for employment less favourably than another applicant for employment. New section 242AA(5) sets out the reasons for carrying out the discriminatory conduct by a prospective employer against a job applicant that will, if the reason is the dominant reason for the conduct, constitute a prohibited reason. Discriminatory conduct is engaged in for a prohibited reason if the dominant reason is because the applicant for employment-- · has given an employer notice of an injury; or · has taken steps to pursue a claim for compensation against an employer; or 24

 


 

· has given, or attempted to give, a claim for compensation to an employer, the Authority or a self- insurer; or · has complied with a request made under section 239 or 240 (a request to furnish the Authority with information or access to books, or to give evidence in relation to determining whether any of the provisions in the Act have been breached or in relation to an inquiry into ascertaining any liability or entitlement under the Act). New section 242AA(6) provides that where all the facts constituting the discriminatory conduct are proved, a reverse evidentiary onus of proof will apply, so that the employer or prospective employer will bear the evidentiary onus of proving that the reason alleged was not the dominant reason for the conduct. New section 242AA(7) sets out the specific defences that an employer or prospective employer can raise in relation to an offence against section 242AA, being that-- · the conduct was necessary to comply with the requirements of the AC Act or OHS Act, or · the worker or job applicant was unable to perform the inherent requirements of the employment, or · the worker was engaged in fraud or dishonesty in relation to the claim. Inserts a new section 242AB in the Act. New section 242AB(1) sets out the remedies that a court may order an employer or prospective employer to pay to a worker or job applicant if the employer or prospective employer is found guilty of an offence under section 242AA. These orders are-- · to pay damages to compensate the worker or applicant for hurt and humiliation as the result of the discriminatory conduct. · in the case of a worker, compensation not exceeding the amount that, had the discriminatory conduct not occurred, the worker would have received from that employer during the 12 month period immediately after the discriminatory conduct occurred-- 25

 


 

and in the case of a job applicant, compensation not exceeding the amount that the applicant would have received if the applicant had been employed for a period not exceeding 12 months from the day on which the applicant made the application for employment-- · in the case of a worker, an order that the worker be reinstated or re-employed in his or her former position or a similar position, and in the case of a job applicant, an order that the applicant be employed in the position for which he or she had applied, or a similar position. New section 242AB(2) provides that the court in making an order under sections 242AB or 242AD, must take into account any compensation or damages received by the worker. This is intended to prevent the possibility of a worker receiving double compensation arising from the same conduct under different jurisdictions or under the Act. New section 242AB(3) provides that nothing in a proceeding in relation to section 242AA gives rise to an issue estoppel (all the issues raised in a proceeding under section 242AA can be disputed in any future proceeding under the Act or section 134AB). Inserts a new section 242AC in the Act. New section 242AC(1) enables a worker or applicant for employment to request that the Authority bring a prosecution in relation to discriminatory conduct, where the Authority has not brought a prosecution in respect of that conduct within 6 months after it occurred. New section 242AC(2) requires the Authority to, within 3 months after receiving the request, investigate the request for prosecution and advise the worker or job applicant that a prosecution has been or will be brought, or to state why a prosecution won't be brought. New section 242AC(3) requires the Authority to refer the matter to the Director of Public Prosecutions if the Authority advised the worker or job applicant that no prosecution will be brought, and the worker or job applicant requests that the Authority do so. New section 242AC(4) requires the Director of Public Prosecutions to consider the matter referred and advise the Authority whether the Director considers a prosecution should be brought. 26

 


 

New section 242AC(5) requires the Authority to send a copy of the advice to the person who made the request and if the Authority decides not to follow the advice of the DPP to follow proceedings, to give that person written reasons for its decision. New section 242AC(6) requires the Authority to include a statement in its annual report and on its website, setting out the number of requests to bring a proceeding received by the Authority, and the number of cases in which the Authority advised that a prosecution has, will or will not be brought and the number of cases in which the Director of Public Prosecutions advised that a prosecution should or should not be brought. New section 242AC(7) prohibits proceedings being brought in relation to a decision by the Authority to bring or not to bring proceedings for an offence under section 242AA. New section 242AC(8) defines "proceedings" for the purpose of subsection (7), to include (but not be limited to) the inquiry into, hearing and determination of any question or matter under the Act, the seeking of any relief or remedy, or the grant of a declaration of right or an injunction, any order under the Administrative Law Act 1978 or any other action or proceeding. Inserts a new section 242AD in the Act which creates a new civil cause of action relating to discriminatory conduct. New section 242AD(1) sets out the types of conduct by an employer in relation to a worker that will constitute discriminatory conduct for the purposes of the civil action for anti-discrimination. Discriminatory conduct occurs if the employer-- · dismisses, or threatens to dismiss, a worker from employment; or · alters, or threatens to alter, the position of a worker to the worker's detriment; or · treats a worker less favourably than another worker in relation to promotion or re-employment. New section 242AD(2) sets out the reasons for carrying out the discriminatory conduct against a worker that will, if the reason is a substantial reason for the conduct, constitute a prohibited reason for the purposes of the civil action for anti- discrimination. The substance of the types of conduct that are regarded as discriminatory are the same for the civil proceeding 27

 


 

and criminal offence. This provision is modelled on the definition of prohibited reason in relation to the criminal offence in new section 242AA, but differs in that for the criminal offence the reason must be the dominant reason for the action while in relation to the civil action the reason need only be a substantial reason for the conduct. New section 242AD(3) sets out the types of conduct by a prospective employer in relation to a job applicant that will constitute discriminatory conduct for the purposes of the anti- discrimination provisions, being if the prospective employer-- · refuses or fails to offer employment to an applicant for employment; or · in offering, or refusing to offer, terms of employment, treats an applicant for employment less favourably than another applicant for employment. New section 242AD(4) sets out the reasons for carrying out the discriminatory conduct by a prospective employer against a job applicant that will, if the reason is a substantial reason for the conduct, constitute a prohibited reason for the purposes of the civil action for anti-discrimination. The substance of the types of conduct that are regarded as discriminatory are the same for the civil proceeding and criminal offence. This provision is modelled on the definition of prohibited reason in relation to the criminal offence in new section 242AA, but differs in that for the criminal offence the reason must be the dominant reason for the action while in relation to the civil action the reason need only be a substantial reason for the conduct. New section 242AD(5) enables a worker or job applicant to apply to the Magistrates' Court (Industrial Division) for an order against an employer or prospective employer in relation to discriminatory conduct carried out against the worker for a prohibited reason. New section 242AD(6) provides that a worker can only bring an application for an order against an employer or prospective employer under section 242AD within one year of the date on which the discriminatory conduct occurred. New section 242AD(7) provides that where all the facts constituting the discriminatory conduct are proved, a reverse evidentiary onus of proof will apply, so that the employer or prospective employer will bear the evidentiary onus of proving that the reason alleged was not the substantial reason for the conduct. 28

 


 

New section 242AD(8) sets out the specific defences that an employer or prospective employer can raise in relation to an offence against section 242AD. These defences mirror the defences in section 242ABA(7) being that-- · the conduct was necessary to comply with the requirements of the AC Act or OHS Act; or · the worker or job applicant was unable to perform the inherent requirements of the employment; or · the worker was engaged in fraud or dishonesty in relation to the claim. New section 242AD(9) sets out the remedies that a court may order an employer or prospective employer to pay to a worker or job applicant under the civil action provisions if the employer or prospective employer has engaged in discriminatory conduct. These orders mirror the orders in new section 242AB(1). New section 242AD(10) provides that the court in making an order under sections 242AB or 242AD, must take into account any compensation or damages received by the worker. This is intended to prevent the possibility of a worker receiving double compensation arising from the same conduct under different jurisdictions or under the Act. New section 242AD(11) provides that each party to a civil proceeding under section 242AD is to bear its own legal costs unless the court considers that it is fair for a party to pay part or all of the other party's party/party legal costs. This is in line with the costs jurisdiction of the Victorian Civil and Administrative Tribunal. Inserts a new section 242AE in the Act. New section 242AE(1) provides that a successful civil action under new section 242AD does not prevent a prosecution in relation to the criminal offence under section 242AA. New section 242AE(2) prevents a worker or applicant for employment whose action is successful under section 242AD and who obtains damages or other redress from the Magistrates' Court, and whose employer or prospective employer is subsequently convicted under section 242AA, from also obtaining damages or other redress from a court in relation to the same conduct. 29

 


 

New section 242AE(3) similarly applies the reverse situation, that is, prevents a worker or applicant for employment whose employer or prospective employer has been convicted under section 242AA and who obtains damages or other redress from a court in relation to that conviction, from also obtaining damages or other redress from a court as an outcome of a civil action based on the same conduct. Inserts a new section 242AF in the Act. Section 242AF confirms that an application by a worker for an order under section 242AB or 242AD in relation to discriminatory conduct is not a proceeding in respect of an injury within the meaning of section 134AB(1). In other words, workers can bring an action for an order under section 242AB or 242AD without having to meet the serious injury criteria or undergo the procedural steps in section 134AB. Clause 24 amends section 252(4)(a) of the Act. Is a consequential amendment to clause 23. It provides that proceedings for an offence under new section 242AA can be instituted up to 3 years after the alleged offence occurred. Clause 25 amends section 138B of the Act, to extend the types of matters in relation to which a court cannot exercise the powers under the Sentencing Act 1991 to make a compensation order, to include a matter arising from an event that constitutes an offence against the anti-discrimination provisions in new section 242AA, irrespective of whether such a matter also relates to an injury or death that may give rise to an entitlement to compensation under the Act. Clause 26 inserts a new section 252J in the Act which provides that it is the intention of section 262AC(7) as inserted by clause 23 of the Bill, to alter or vary section 85 of the Constitution Act 1975. Clause 27 inserts a new section 252K in the Act which provides that it is the intention of the amendments to section 138B (in relation to the Sentencing Act 1991) as amended by clause 25 of the Bill, to alter or vary section 85 of the Constitution Act 1975. PART 4--BETTER INCOME REPLACEMENT Clause 28 amends section 5(1) of the Act to insert a definition of State average weekly earnings; amend paragraph (abc) of the definition of medical question so that it applies more directly to an application for weekly compensation payments under section 93CD; and repeal the definition of notional earnings. 30

 


 

Clause 29 inserts a new section 55AA in the Act which requires Conciliation Officers to refer medical questions that arise in disputes relating to section 93CD to a Medical Panel within 7 days of becoming aware of them. It is intended that conciliation of the dispute will be suspended until the Medical Panel gives its opinion on the medical question. Clause 30 inserts a new section 91E in the Act which contains definitions of-- · first entitlement period, which restates current sections 93A(1) and section 93CA(1). If the worker is a pre-12 November 1997 claimant, the period is the first 26 weeks of incapacity after first becoming entitled to receive compensation in the form of weekly payments. In all other cases it is the first 13 weeks in respect of which weekly payments are paid or payable to the worker; · pre-12 November 1997 claimant, who is a worker who made a claim for weekly payments before 12 November 1997 in respect of an injury arising before that date and was entitled, or has been determined to have been entitled, to weekly payments under the provisions in force at the time. The definition restates current section 93C(1); · second entitlement period, which draws from current sections 93B(1), 93B(3), 93B(3A), and 93CB(1) and commences after the first entitlement period ends. For workers who made a claim for compensation before 1 January 2005, the second entitlement period ends when the total number of weeks in respect of which weekly payments are paid or are payable reaches 104 weeks. For workers who made a claim for compensation after 1 January 2005, it ends when the total number of weeks in respect of which weekly payments are paid or payable reaches 130 weeks; · serious injury, which restates current section 93B(5). Clause 31 replaces sections 93A, 93B, 93C, 93CA, 93CB and 93CC of the Act which determine how compensation in the form of weekly payments is calculated, with new sections 93A, 93B and 93C. The new provisions are clearer and alter the calculation of weekly payments as follows-- 31

 


 

· the amount payable to all workers who do not have a serious injury after the expiry of the first entitlement period is calculated on 80 per cent of their pre-injury average weekly earnings and, if applicable, 80 per cent of their current weekly earnings; · the maximum amount payable to workers who first make a claim on or after 5 April 2010 is twice the State average weekly earnings; · notional earnings are no longer to be used in the calculation of current weekly earnings; · payment of the compensation to the worker is subject to and in accordance with new Part VIIB, as well as Part IV. Part VIIB, which is inserted by clause 129, contains the worker's return to work obligations and provides for the payments to be suspended, terminated or ceased and determined if the worker fails to meet an obligation. New section 93CA provides for compensation in the form of weekly payments to be made to a worker who needs to take time off work after the expiry of the second entitlement period to recover from surgery for which the Authority or the self insurer has accepted liability. Payments may be made under the new section 93CA for a period of up to 13 consecutive weeks from the date of the surgery while the worker has an incapacity for work. A worker who ceases to receive weekly payments after the expiry of the second entitlement period and has returned to work for at least 15 hours per week, and has current weekly of at least $151 per week, may apply for compensation under the new section no sooner than 13 weeks after the second entitlement period expires. A worker who receives payments after the expiry of the second entitlement period under section 93CD may apply for compensation under the new section at any time. Clause 32 makes consequential amendments to the Act arising from the amendments made by clause 31. Clause 33 makes consequential amendments to the Act arising from the amendments made by clause 31. 32

 


 

Clause 34 replaces section 93CD of the Act, under which workers may apply for compensation in the form of weekly payments after the expiry of the second entitlement period. New section 93CD(1) provides that a worker who has a current work capacity and is, or has been entitled, to compensation in the form of weekly payments, may apply in a form approved by the Authority for a determination that the entitlement does not or will not cease by reason only of the expiry of the second entitlement period. New section 93CD(2) requires the application to be made to the Authority or the self-insurer, depending on where liability to pay the weekly payments lies. New section 93CD(3) requires the Authority or self-insurer to approve or reject the application, advise the worker in writing of its determination and, if it rejects the application, provide the worker with a written statement of reasons for the decision, within 28 days after receiving the application. New section 93CD(4) provides that the Authority or self-insurer must not approve an application unless it is satisfied that the worker has returned to work for at least 15 hours per week, earns at least $151 per week and, because of the injury, is incapable of undertaking further additional employment or work which would increase his or her current weekly earnings and is likely to continue indefinitely to be incapable of doing so. New section 93CD(5) contains the calculation of weekly payments payable under this section, from the date on which the application was received and subject to and in accordance with Part IV and the new Part VIIB (concerning Return to Work). New section 93CD(6) specifies that a worker continues to be entitled to compensation in the form of weekly payments under subsection (5) until--subject to new section 93CDA (inserted by clause 35) which allows for fluctuations in hours worked and earnings received--the Authority or self-insurer ceases to be satisfied as to the matters in subsection (4), or the worker otherwise ceases to be entitled to weekly payments. Clause 35 inserts a new section 93CDA in the Act which introduces flexibility in maintaining an entitlement to compensation in the form of weekly payments under section 93CD. New section 93CDA(1) allows for a worker to continue to be entitled to payments under section 93CD notwithstanding occasional fluctuations in hours worked due to temporary variations in the availability of work or the worker's capacity for work. Variations in hours worked or earnings received during 4 or 33

 


 

less weeks in a 12 week period will not affect the worker's entitlement. The 12 week periods are consecutive from the date that the first payment is received by the worker under section 9C3D. Clause 36 repeals section 93DA of the Act, which concerns the assessment of notional earnings. Clause 37 inserts a new section 93CE in the Act which establishes an entitlement for workers who have received compensation in the form of weekly payments for 52 weeks to thereafter also receive compensation in the form of contributions to a complying superannuation fund of their choice, other than a defined benefit fund or scheme. New section 93CE(1) provides that, subject to the worker nominating a complying fund and providing details of his or her tax file number to the trustee of that fund, the Authority or self insurer must pay compensation in the form of superannuation contributions to the fund for the benefit of the worker if compensation in the form of weekly payments has been paid or is payable to the worker in respect of an injury for an aggregate period of 52 weeks, and continues to be paid or payable in respect of that injury and the worker has not reached the age of 65. New section 93CE(2) specifies that a worker is not entitled to receive compensation in the form of superannuation contributions if the employer is making contributions to a relevant scheme or fund for the worker's benefit to discharge an obligation that arises, because of the worker's injury, under a public sector superannuation scheme, agreement or arrangement, a superannuation law or an industrial award and the contributions are more than necessary to avoid an individual superannuation guarantee shortfall under the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth. New section 93CE(3) specifies how the amount of the superannuation contributions is calculated. The amount is a percentage of the weekly payments that the worker receives once the period of 52 weeks has passed, and this percentage is the same as the superannuation guarantee rate legislated by the Commonwealth. Contributions are not payable in respect of weekly compensation payments under section 93CA or 93CEA to a worker recovering from surgery, unless the worker would otherwise be receiving weekly payments under section 93CD. 34

 


 

New section 93CE(4) requires the Authority to notify the worker about the entitlement and also inform that worker that commencement of the contributions will depend on the worker nominating a complying superannuation fund and providing sufficient details to enable the contributions to be made. This includes quoting his or her tax file number to the trustee of the nominated fund, if the fund does not already have a record of it. Otherwise, the fund is not permitted by the Commonwealth Superannuation Industry Supervision Regulations to accept the contributions. Tax File Number Guidelines issued by the Federal Privacy Commissioner under the Privacy Act 1988 of the Commonwealth do not permit the Authority to collect and quote the worker's tax file number on the worker's behalf. If the worker provides the necessary information within 3 months of being notified of the requirement, contributions will be made to the nominated fund with effect from the date that the worker becomes eligible for compensation in this form. Otherwise, contributions will be made with effect from the date that the information is provided. New section 93CE(5) specifies when the superannuation contributions are to be made (once 52 weeks of weekly compensation payments have been made to the worker, and the worker has provided all the information necessary to enable the superannuation contributions to be made). It is intended that the Authority must make the contribution within 30 days of being informed by the employer that the relevant weekly payment, on which the superannuation contribution is calculated, has been paid to the worker, or within 120 days of the weekly payment being paid, whichever occurs first. The self insurer must make contributions to the nominated fund at least quarterly. Clause 38 clarifies that section 59 of the Act, concerning the conciliation of disputes about compensation in the form of weekly payments, does not apply to disputes about compensation in the form of superannuation contributions. It is intended that disputes about superannuation contributions will be conciliated under section 57. Clause 39 increases the maximum amount of compensation in the form of weekly pensions that is available under section 92B of the Act to the dependants of a worker who dies. 35

 


 

Clause 40 amends sections 96 and 96A of the Act to-- · provide for the weekly compensation payments of a worker who also receives a disability pension for the injury to be reduced once the worker's combined income from the weekly compensation payments that otherwise would be payable, the disability pension and any current weekly earnings exceeds the supplemental pension limit; · repeal provisions that reduce the amount a worker receives in weekly compensation payments by any amount the worker receives in redundancy or severance payments; · increase the penalty for failing to notify the employer, the Authority or the self-insurer, as the case may be, about the payment of a disability, retirement or superannuation pension or a superannuation or retirement benefit lump sum from 10 penalty units to 40 penalty units. The supplemental pension limit is the worker's pre-injury earnings, including pre-injury and shift work earnings, as calculated under section 5A and indexed. Clause 41 makes consequential amendments to section 96A of the Act. Clause 42 amends section 97 of the Act to provide that payments to a worker in lieu of accrued long service leave or annual leave will not affect the worker's entitlement to compensation in the form of weekly payments or the amount payable except as provided in section 96. This provision is intended to permit a worker to take long service leave or annual leave during a compensation period for the purpose of section 130(2) of the Fair Work Act 2009 of the Commonwealth, where the leave is approved by the employer. Section 97(1)(c) is amended as a consequence of the insertion of a definition of industrial award by clause 3. Clause 43 inserts a new section 109AA in the Act. This provision provides an employer, who is not a self-insurer, the right to seek written reasons for the Authority's decisions on initial liability, that is, decisions to accept or reject liability, for certain compensation claims. The relevant decisions relate to claims for-- 36

 


 

· compensation for weekly payments; · compensation under sections 98 and 98A (maims); · compensation under section 98C (impairment benefits); and · compensation in respect of the death of a worker. The obligation to furnish written reasons only applies to the initial decision to accept or reject liability for the claim, and not to subsequent decisions on particular benefits flowing from the initial decision to accept liability. The Authority must provide written reasons within 28 days of receiving the employer's request. No proceedings may be brought against the Authority in respect of any question or matter arising under this section. Clause 44 inserts a new section 252L in the Act which states that it is the intention of new section 109AA as inserted by clause 43 to alter or vary section 85 of the Constitution Act 1985. Clause 45 amends section 114 of the Act to permit the Authority or self insurer not to commence or recommence weekly payments of compensation, or not to alter the weekly payments that the worker is receiving, if the worker resigns, leaves Victoria, or reduces the hours worked for reasons unrelated to his or her incapacity or whose employment has been terminated for misconduct. New section 114(2D) requires the Authority not to alter the amount of weekly payments of compensation to a worker by reason only that his or her current weekly earnings are reduced because the worker is on paid annual leave or long service leave. This provision is intended to permit a worker to take long service leave or annual leave during a compensation period for the purpose of section 130(2) of the Fair Work Act 2009 of the Commonwealth, where the leave is approved by the employer. Clause 46 inserts a new section 114AA in the Act which specifies notice requirements for the termination of compensation in the form of superannuation contributions, where they are not terminated because the worker's weekly compensation payments have been terminated. 37

 


 

Clause 47 inserts new sections 114EA and 114EB in the Act which provide for interest to be paid on outstanding payments of compensation in the form of superannuation contributions if a court sets aside a decision to terminate superannuation contributions or a decision to terminate or reduce weekly payments. The interest is to be paid to the superannuation fund nominated by the worker under new section 93CE. PART 5--TREATMENT EXPENSES Clause 48 inserts a new section 99(1AA) in the Act which provides that the Authority may issue guidelines identifying services or classes of services for which approval should be sought prior to the service being provided. The services listed will generally represent services that ordinarily require prior approval and should therefore serve as a valuable guide to whether prior approval of the service should be obtained. The guidelines will also provide information on the process by which the Authority will manage a claim for prior approval. Failure to obtain prior approval of the service identified in the guidelines will not necessarily disentitle a service provider from payment for services rendered if the service provider can still demonstrate that the cost of the services were reasonable and compensable under this Act. It also inserts a new section 99(1B) which provides a discretionary power for the Authority or a self-insurer to require prior approval of costs referred to in section 99(5A), (5B), and (5D) which relate to car purchase or modifications, modifications to a home or unit, and relocation costs. Failure to obtain prior approval of these costs will, unless Authority or self-insurer otherwise determines, mean that the Authority or self-insurer is not liable to pay for those costs. Clause 49 amends section 99 of the Act, in particular subsections (5A), (5B), (5C), (5D), (5E) and (5D) to clarify that these provisions apply also to self-insurers. Clause 50 inserts a new section 99(12A) in the Act which prescribes the process to be followed for ceasing entitlement to compensation as provided for under sections 99(11) or 99(12). The worker must be given at least 28 days written notice, including the reasons for giving the notice and the date the entitlement will cease. 38

 


 

Clause 51 repeals section 99AAA of the Act which sets up co-ordinated care programs. From the commencement date of this section, no new proposals for a co-ordinated care program will be able to be entered into. Any co-ordinated care programs existing prior to the repeal of section 99AAA will continue to run until expiry. This clause also makes consequential amendments to repeal provisions in sections 5(1)(g) and 243(2)(ab) of the Act which have been made redundant as a result of the repeal of section 99AAA. Clause 52 amends section 99 of the Act to enable the Governor-In- Council, by Order, to fix limits on contributions to be made by workers towards the cost of supported accommodation. In line with Hanks recommendation 56 and consistent with the regime under the Transport Accident Act 1986, this provision will provide workers with certainty about what contribution may be sought. This provision also includes a definition of supported accommodation. PART 6--LUMP SUM BENEFITS Clause 53 Amends section 91 of the Act. New section 91(7AA) provides that assessments of spinal impairments are to specify the whole person values in relation to the spinal impairment, as derived in accordance with Chapter 3 of the AMA Guides to the Evaluation of Permanent Impairment, 4th Edition (this is for the purpose of enabling the necessary comparison between combined impairments and a spinal impairment/s only, where a worker has multiple impairments of which one or more is a spinal impairment). It is intended that spinal impairment assessments are to be derived in accordance with the AMA Guides 4th Edition, as modified by section 91 of the Act, through the application of the diagnosis-related estimate model or injury model only. Clause 54 amends section 98C of the Act. Subclause (1) inserts new section 98C(1A) into the Act. It defines spinal impairment for the purpose of section 98C. It is intended that spinal impairment assessments are to be derived in accordance with the AMA Guides 4th Edition, as modified by section 91 of the Act, through the application of the diagnosis-related estimate model or injury model only. 39

 


 

Subclause (2) amends section 98C(2) of the Act. In conjunction with (2A), new section 98C(2) increases the amount of impairment benefit payments to workers as follows-- · aligns the maximum amount of lump sum benefits payable with the maximum amount of common law damages available at common law for pain and suffering for workers with a serious injury. The new maximum amount will be $503 000. The increase in lump sum benefits will apply to workers with a whole person impairment of greater than 80%, and will apply proportionately for workers assessed between 71% and 80% whole person impairment. The increase will apply to workers with both psychiatric and physical impairments. The amounts are to be indexed annually in accordance with section 100. This new maximum amount will apply irrespective of the date of injury where the injury occurred on or before the commencement date, to all new claims and to those claims that were given or served prior to the commencement date but for which the worker has not yet attended their first impairment assessment; · increases by 10%, the amount of impairment benefits that workers with accepted spinal impairments only would otherwise have been entitled to. The 10% increase is to be applied to workers who-- · only have a spinal impairment or multiple spinal impairments; or · have a spinal impairment and impairment of another body part or parts, but the lump sum benefit amount the worker would be entitled to for the spinal impairment only, with the 10% increase, is greater than the lump sum benefit amount that the worker would be entitled to for the combined impairments without the 10% increase for the spine, in which case the worker will receive the amount in relation to the spine impairment/s only. For injuries occurring in previous financial years, the relevant primary dollar amounts in the formula will be the indexed amount as gazetted for the relevant financial year in which the injury occurred. 40

 


 

The amount of lump sum benefits that a worker with a spinal impairment only with an impairment rating of less than 30% may receive is capped at $68 240. As a result, workers with a spinal impairment only with an impairment rating of 29%, will receive a substantial increase but not the full 10% increase. This is an unavoidable consequence of ensuring that a worker with a 29% impairment rating for a spinal impairment does not receive a greater lump sum benefit than a worker with a spinal impairment with an impairment rating of 30%, while maintaining the integrity of the percentage scale. Subclause (2) also substitutes a new section 98C(2A) which sets out the process of determining a worker's impairment benefit rating for the purpose of calculating a worker's entitlement under subsection (2), by providing for comparisons to determine on what basis the worker would be entitled to the greatest amount of impairment benefits. For workers who have a spinal impairment between 5% and less than 30% and another non- spinal musculoskeletal impairment and were injured on or after 3 December 2003, the worker's modified whole person impairment under Chapter 3 of the AMA Guides for all those musculoskeletal impairments is to be compared to the modified whole person impairment under Chapter 3 of the AMA Guides for the spinal impairment only (with the 10% increase). For workers who have a spinal impairment between 5% and less than 30% and another non-spinal impairment (whether musculoskeletal or not) and were injured before 3 December 2003, the worker's non-modified whole person impairment for the spinal impairment (with the 10% increase) is to be compared to the non-modified whole person impairment for all the impairments combined (without the 10% increase). For workers who have a spinal impairment between 5 % and less than 30% and another non-spinal and non-musculoskeletal impairment and were injured on or after 3 December 2003, the worker's modified whole person impairment for the modified whole person impairment under Chapter 3 of the AMA Guides for the spinal impairment only (with the 10% increase) is to be compared to the non-modified whole person impairments combined (without the 10% increase). Subclause (3) amends section 98C(3) of the Act. It increases the lump sum benefit awarded for psychiatric impairments of 30% to 70% whole person impairment to the same level of impairment benefit for corresponding physical impairments between 30% to 70% physical impairment (there is already parity for psychiatric impairments greater than 70%). For injuries occurring in previous financial years, the relevant 41

 


 

primary dollar amount in the formula will be the corresponding indexed amount under section 98C(2)(c) and 98C(2)(d) (i.e. the relevant indexed amounts that applied to the physical impairments) as gazetted for the relevant financial year in which the injury occurred. Subclause (4) amends section 98C(3)(e) of the Act, increasing the maximum impairment benefit amount to $503 000 for psychiatric injuries with a whole person impairment of greater than 80%. Subclause (5) inserts new section 98C(3AA) consequential to the amendments in subclause (3). It confirms that in relation to a relevant psychiatric impairment injury sustained before 1 July 2010, a reference to an amount in dollars referred to in subsection (3)(b)and (3)(c) is to be regarded as if it is a reference to the corresponding amount in dollars applying at the date of the injury under section 98C(2)(c) and 98C(2)(d) as then in force in respect of permanent physical impairment. This is to ensure parity between physical and psychiatric impairments irrespective of the date that the injury was sustained. Subclause (6) inserts new sections 98C(5A) to(5D). New sections 98C(5A) to (5D) are only to apply in relation to claims for compensation under section 98C.The new sections provide that the date of injury for gradual process injuries (injuries that arise through employment or because of the nature of employment incrementally over time), other than industrial deafness injuries, in claims for lump sum benefits are to be deemed to be a particular date, depending on-- · whether the worker is still working; or · has ceased to work-- in the employment (i.e. whether the worker is still performing duties or being exposed to conditions) out of which or in the course of which the worker's injury arose, or which exposed the worker to conditions or duties to the nature of which the injury was due, at the time the worker made the claim for lump sum benefits. If the worker is still working in the relevant employment (i.e. still performing the relevant duties or being exposed to the relevant conditions) on the day the claim is made, then the deemed date of injury is the date of the claim. If the worker is no longer working in the relevant employment (i.e. still performing the relevant duties or being exposed to the relevant conditions) on the day the claim is made, then the deemed date 42

 


 

is the day on which the worker last performed the relevant duties or was exposed to the relevant conditions. Subclause (7) amends section 98C of the Act as a consequential amendment to subclause (2). Subclause (8) inserts new 98C(10) which confirms that the maximum amount that a worker can receive under either section 98C or 98E, or under section 98C and 98E combined, in relation to the same injury, is capped by the statutory maximum amount introduced by subclause 54(2). Clause 55 amends section 100 of the Act to align the basis for the annual indexation of the statutory maximum amount for common law damages with the basis for the annual annexation of the maximum amount for non-economic loss under section 98C (the basis is a formula based on the consumer price index). Clause 56 inserts a new subsection in section 100 of the Act so that the correct indexation is applied for the statutory maximum amount for common law damages and the maximum amount for non- economic loss under section 98C. PART 7--ACCESS TO JUSTICE FOR SERIOUSLY INJURED WORKERS Clause 57 amends section 134AB of the Act. Subclause (1) requires a worker to accompany a serious injury application under sections 134AB or 135A with a signed authority for the Authority or the relevant self-insurer to access medical information relevant to the application. This authority will replace the current voluntary Form D authority. A worker's medical authority will be revoked if the worker withdraws their serious injury application, or the matter otherwise resolves. Subclause (2) repeals section 134AB(19)(c) of the Act. Subclause (3) replaces the substance of section 134AB(19)(c) with a new section 134AB(19A) that provides that no finding in a serious injury application under section 134AB gives rise to an issue estoppel in any proceedings for the recovery of common law damages brought under section 134AB of the Act. This has the effect that matters raised in that proceeding or application can be re-visited during a subsequent common law damages proceeding. This amendment applies to proceedings for the recovery of damages that are heard and determined on and from the date of commencement of section 57 of the Bill. 43

 


 

Subclause (4) provides that a worker who has made an application for leave to bring proceedings under section 134AB in relation to an injury is prohibited from making a further application for leave to bring proceedings under section 134AB in relation to the same injury. Subclause (5) amends the process for determining the legal costs consequences for parties when an action for common law damages is not resolved through the statutory offer process. Provides that any compensation in the form of weekly payments received by a worker after the making of a statutory counter offer or deemed statutory counter offer (which is part of the mandatory negotiation process for common law matters following the granting of a serious injury certificate to a worker) are to be disregarded for the purpose of determining whether a worker or the Authority is entitled to payment of party/party legal costs by the other party. Subclause (6) makes consequential amendments. Subclause (7) provides for a worker who has been awarded common law damages or has settled a common law claim, and who has been receiving compensation in the form of weekly payments, to receive a weekly amount in part payment of the damages entitlement between the date of the judgment, compromise or settlement of the claim and the date that the cheque for the remainder of the entitlement is drawn. The weekly amount is equal to the net amount that the worker would have been receiving in compensation in the form of weekly payments if not for the judgment, compromise or settlement of the claim. Subclause (8) clarifies that for the purpose of comparing a worker's pre-injury and post-injury income to ascertain loss of earning capacity as it relates to determining a worker's serious injury application, in calculating a worker's loss of earning capacity a worker's post-injury earnings from any employment (rather than just "suitable" employment) are to be taken into consideration. Clause 58 inserts a new section 134ABAA in the Act. New section 134ABAA (1) allows a worker's serious injury application under sections 134AB or 135A to continue, following the worker's death from a cause unrelated to the injury from which their claim arises, if at the time of the worker's death-- · the worker's application was pending; or 44

 


 

· the worker had issued proceedings seeking the leave of the Court to commence proceedings following the rejection of the worker's application by the Authority or self-insurer; or · the 30 day period within which a worker is required to institute proceedings has not expired; and the worker had left a dependant or dependants (within the broader meaning of dependants applicable to this new section, being a person or persons who at the time of the worker's death would have been wholly or partly dependant on the earnings of the worker, but for the incapacity of the worker due to the work- related injury or disease of the worker or the injury or disease which caused or materially contributed to the death of the worker). This expanded definition of dependant is included because of concerns that in many instances a deceased worker's family or spouse would not fit within the general definition of dependant, where the worker had been prevented from earning wages as the result of, for example, a disease that caused the worker's death. New section 134ABAA(2) enables the legal personal representative of the deceased worker (the person responsible to attend to matters on behalf of the deceased's estate) to take the same action as could have been taken by the worker on behalf of the deceased worker's estate. Deems that any rights of the deceased worker that arise from a determination by a Court, the Authority or a self-insurer that a worker had a serious injury, were vested in the worker before the worker's death and that such rights survive for the benefit of the deceased worker's estate. New section 134ABAA(3) provides that an assessment as to whether a worker has a serious injury is to be made in accordance with the provisions in section 134AB(38), except where a particular subsection of new section 134ABAA is inconsistent with the provisions in section 134AB(38). New section 134ABAA(4) provides that an assessment as to whether a worker has a serious injury must be made with reference to the condition and circumstances of the worker on the date the application was served by the deceased worker. New section 134ABAA(5) specifies the damages that a deceased worker's legal personal representative can recover under a serious injury application on behalf of the worker's estate, being damages in relation to the pain and suffering of the deceased worker in respect of the injury, and if the deceased 45

 


 

worker's application established that the worker had a serious injury in relation to economic loss, pecuniary loss damages of the deceased worker in respect of the injury for the period between the date the injury was sustained to the date of the worker's death. New section 134ABAA(6) provides that for the purpose of determining the amount of pecuniary loss damages that may be recovered in relation to a deceased worker's application, the criteria in sections 134AB(38)(e) and 134AB(38)(f) of the Act are to be applied as if modified so that the reference to "the date of the hearing of an application" in section 134AB(38)(e) and "the date" in section 134AB(38)(f) were to read "the date on which the application under section 134AB(4) was served". New section 134ABAA(7) confirms that evidence obtained both before and after the deceased worker served a serious injury application, and any other information that would have been admissible under section 134AB, continues to be admissible following the worker's death. New section 134ABAA(8) defines the term dependant for the purpose of new section 134ABAA to include both those persons who would be a dependant under the definition of the term in section 5(1) of the Act, together with a person who would have been wholly, mainly or partly dependant on the earnings of the worker but for the incapacity of the worker due to the work- related injury or disease of the worker or the injury or disease that caused or materially contributed to the worker's death. New section 134ABAA(9) defines service of an application to mean in relation to an application under section 134AB, the service of an application made in accordance with the relevant Ministerial Direction, and in relation to a proceeding under section 135BA, to be the date the Writ for the proceedings was issued and served. Clause 58 is limited to section 134AB matters and does not apply to "old" common law matters under section 135A because of the application of the limitation of actions period under section 135AC which restricts proceedings under section 135A to a very small number of workers. Clause 59 inserts a new section 134ABB in the Act which clarifies the operation of the provisions regarding the limitation of actions period for serious injury applications under section 134AB, by confirming that the date that a cause of action is taken to have occurred for the purpose of common law proceedings under the Act is not affected by the serious injury application process, with the exception of the relevant excluded periods. 46

 


 

Clause 60 repeals section 134AD of the Act which requires that the Court of Appeal must decide for itself whether an injury is a serious injury on an appeal from a decision relating to a section 134AB matter. As a result of the repeal, the Court of Appeal will be able to refer such a matter back to the County Court for a re-hearing. Clause 61 inserts a new section 135A(18AA) in the Act which provides for a worker who has been awarded common law damages or has settled a common law claim, and who has been receiving compensation in the form of weekly payments, to receive a weekly amount in part payment of the damages entitlement between the date of the judgment, compromise or settlement of the claim and the date that the cheque for the remainder of the entitlement is drawn. The weekly amount is equal to the net amount that the worker would have been receiving in compensation in the form of weekly payments if not for the judgment, compromise or settlement of the claim. Clause 62 inserts a new section 135BBA in the Act. New section 135BBA(1) provides that new section 135BBA applies if-- · a worker has issued proceedings and served the application to commence proceedings in accordance with section 134AB; and · dies from a cause that was not materially contributed to by the injury to which the proceedings relate; and · at the time of the deceased worker's death, the deceased worker had left a dependant or a person who would have been wholly, mainly or partly dependant on the earnings of the worker but for the incapacity of the worker due to the work-related injury or disease of the worker or the injury or disease that caused or materially contributed to the worker's death. New section 135BBA(2)(a) enables the legal personal representative of the deceased worker (the person responsible to attend to matters on behalf of the deceased's estate) to take the same actions as could have been taken by the worker on behalf of the deceased worker's estate in relation to the proceedings referred to in new section 135BBA(1). 47

 


 

New section 135BBA(2)(b) provides that the relevant proceedings shall be taken to be and shall be limited to an application served under section 134AB(4) by the worker before the worker's death; and New section 135BBA(2) (c) and (d) provide that section 134ABAA applies to the relevant proceedings save that notwithstanding section 134ABAA(3), (4) and (5), for the purposes of the assessment of serious injury, the assessment must be made as at the date those proceedings were served. Clause 63 inserts a new section 135AD in the Act which clarifies the operation of the provisions regarding the limitation of actions period for serious injury applications under the "old" common law sections 135A and 135AC of the Act, by confirming that the date that a cause of action is taken to have occurred for the purpose of common law proceedings under the Act is not affected by the serious injury application process, with the exception of the relevant excluded periods. PART 8--BENEFITS FOR FAMILY MEMBERS FOLLOWING WORK-RELATED DEATHS Clause 64 inserts a new definition person under a disability in section 5 of the Act. It means "a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to a proceeding or matter under the Act". Note, other legislation adopts similar definitions: see section 28LZD(2), Wrongs Act 1958; County Court Rules, Order 15.03; Magistrates Court Rules Order 32.02. The definition is used in several key new provisions in Parts 8 and 9 of the Act. The definition of member of a family is also revised to improve its clarity. The change is one of form only; the range of persons who come within the definition remain the same. Note, variations of the term are employed in a number of current provisions in the Act (see sections 92, 92A 11(4), 157(d)) as well as new section 92AA. A new interpretative provision, section 5(3A), inserted by subclause 64(2), is intended to confirm that each variation of the term captures the persons who fall within the definition in section 5(1) of member of a family, unless the provision states differently. Clause 65 inserts a new section 43(1B) in the Act to expressly give the Magistrates' Court specific jurisdiction to hear and determine applications made under new section 92AA (see notes for clause 69). 48

 


 

Clause 66 amends section 49 of the Act to clarify that the exclusion to the mandatory conciliation requirement applies to applications for reimbursement made under new section 92AA, inserted by clause 69. Clause 67 amends section 92 of the Act, which is the original provision in the Act providing compensation for the dependants of a worker who died from a work-related compensable injury. It only applies in respect of deaths occurring before 12 November 1997: section 92(1A). Section 92(1) entitles the deceased worker's dependants to compensation in the form of a lump sum payment up to the statutory maximum amount (currently $134,430) as determined by the County Court in accordance with sections 92(2) to (6). The latter provisions set out how the maximum amount is to be shared between any dependent child/ren, dependent spouse and/or other dependants of the worker. All lump sum claims made under section 92 must be determined by the County Court: sections 92(1). The Hanks Report noted that in practice however, the parties usually negotiate and reach an agreement, before the matter is heard by the Court, on the lump sum amounts the claimant/s should be awarded, and the Court determination mirrors this agreement (see the Hanks Report at paragraphs 9.138-9.148. Hanks recommended that mandatory court determination of section 92 (and section 92A) lump sum claims be removed, except where the claimant has a particular vulnerability that makes court oversight of the claim essential to ensuring fairness and protection of the claimant's interests (Hanks recommendation 83). Subclause 67(1) therefore amends section 92(1) to provide that the court must determine (in accordance with the section) the amount of compensation payable in respect of a claim made under section 92 where the claimant is a minor, a person under a disability (see notes for clause 64) or does not have legal representation. In all other cases, the amount of compensation must be determined by WorkSafe or the self insurer. As stated, the intention is to allow the parties, in appropriate cases, the flexibility of being able to negotiate a settlement of the claim, without having to unnecessarily litigate. However, if the parties cannot reach agreement, or if a claimant otherwise wishes to have the court determine his or her claim, they may commence proceedings. 49

 


 

Note, under the amendments to section 43(1) being made by clause 75, both the Magistrates Court and the County Court will have jurisdiction to hear and determine section 92 and section 92A lump sum claims. Subclauses (3) to (5) thus replace all the current references to "County Court" in section 92 with "court". Clause 68 makes several significant amendments to section 92A of the Act. By way of background, in 1997, the Act was amended to change the structure of the lump sum compensation regime, as created by section 92. This set of amendments also introduced sections 92B and 92C, which created a new compensatory regime wherein the dependent partner and children of deceased workers could also be entitled to compensation in the form of a weekly pension. Section 92A is similar to section 92. It entitles the dependants of a worker who died from a work-related compensable injury on or after 12 November 1997 to lump sum compensation up to the statutory maximum amount (currently $503 000) as determined by the County Court in accordance with sections 92A(4) to (10). The latter provisions set out how the maximum amount is to be shared between any dependent children, dependent partner/s and/or other dependants of the worker. All lump sum claims made under section 92A must be determined by the County Court. Subclause (1) expands the definition of child in section 92A(1) to include a person who is under the age of 25 years and who is a full time student or a full time apprentice. The change to the definition is to facilitate the substantive amendments being made by clause 70 to the child pension eligibility rules in section 92B(9). These changes will raise the eligibility age of full time students from 21 to 25 years, and introduce the same eligibility rule to full time apprentices. Subclause (1) expands the current definition of dependent child in section 92A to include a child of the worker born after the worker's death. This is designed to ensure that where the worker died from a compensable injury, such a child will automatically be treated as a dependant of the worker for the purposes of assessing that child's entitlement to lump sum compensation under section 92A and to a weekly pension under section 92B. Note, this definition of dependent child also applies to section 92B because of section 92B(1). 50

 


 

Paragraph (b) confirms that the worker must be the legal parent of the child, that is the child's parent in accordance with the Status of Children Act 1974 (SCA) or a corresponding law as defined. In December 2008, the Victorian Parliament enacted the Assisted Reproductive Technology Act 2008. This inserted a new Part 5 into the SCA which clarifies the legal parentage of a child who was produced with the assistance of a contemporary reproductive technique (e.g. IVF) that utilised the gametes of a deceased person, or an embryo formed from the gametes of that person. These amendments to the SCA will commence on 1 January 2010. Section 40 in new Part V of the SCA states-- · a deceased person referred to in section 37, 38 or 39-- · is to be treated in law as a parent of the child for the purpose referred to in that section; but · is not to be treated in law as a parent of the child for any other purpose; · to avoid doubt, this section does not apply in relation to a will executed by the deceased that expressly refers to a child born as a result of a procedure referred to in section 37, 38 or 39. In the workers compensation context, the effect of the above provision would be that where the deceased worker's partner has used the stored gametes of the worker, or a stored embryo formed from the gametes of the worker, to produce a child after the worker's death, then the worker will be registered as the legal parent of the child but will not be taken to be the legal parent of the child for any other purpose, including an entitlement to compensation under section 92 or 92A of the Act. Thus, the reference to the SCA in paragraph (b) is intended to preserve this consequence under the SCA. This would mean that in practice, only a child naturally conceived and in utero (either naturally or through an assisted reproductive technique) will be entitled to compensation as a dependent child under the Act. Subclause 68(2) inserts in section 92A(1) a new definition of corresponding law to mean an Act of another State or Territory that, like Part 5 of the SCA, governs the legal parentage of a child who was born with the assistance of a reproductive technique (e.g. IVF) that employed the gametes of a deceased person, or an embryo formed from the gametes of that person. 51

 


 

Clause 69 inserts a new section 92AA in the Act which, in summary, enables a non dependent family member of a deceased worker to obtain reimbursement of expenses incurred as a result of the worker's death in exceptional circumstances. Currently under the Act, only the dependants of a worker who dies from a work-related injury are eligible for compensation under the Act. Non dependent family members of the deceased worker are not eligible to receive compensation or any other payment under the Act. As the Hanks Report identified, there may be instances where a worker dies from a work-related injury leaving no dependants, and his or her non dependent family members (e.g. parents or siblings) suffer financial hardship as a result of having to incur reasonable expenses associated with the worker's death (e.g. the cost of administering the deceased worker's estate). The current compensatory regime does not provide any relief or assistance to such a person, resulting in unfairness in some cases. On this basis, Hanks recommended that a non dependent family member of a deceased worker should be paid for any reasonable expense incurred by that person as a result of the worker's death. The payment should be determined by the court, and should only be available where the worker has no dependants (Hanks recommendation 79). New section 92AA(1) defines expenses in an exclusionary manner, stating that the following are not expenses (and cannot therefore cannot be reimbursed) under section 92AA-- · the costs of any service or contribution that the section 92AA claimant may claim under section 99. Pursuant to sections 99(1) and (6) a non dependent family member may be entitled to payment-- · for medical expenses incurred by the worker before his or her death and paid for my that person: paragraph 99(1)(a); · of up to $5160 for any family (including grief) counselling costs incurred by that person in relation to the worker's death: paragraph 99(1)(aa); and · of up to $9300 for the deceased worker's burial/cremation expenses incurred by that person: paragraph 99(1)(b). 52

 


 

That is, it a non dependent family member cannot rely on section 92AA to obtain reimbursement of one of the section 99 expenses listed above, or over and above one the maximum for any of these expenses or to recover payment of any amount in excess of the applicable maximum. For example, if the non dependent family member has paid $15 000 for the worker's funeral and recovered payment of $9300 pursuant to a section 99 claim, then he or she cannot be eligible for payment of the remaining $5700 under section 92AA. · the legal or other costs incurred as a result of disputing the deceased worker's will or the distribution of the deceased worker's estate. However, the reasonable costs of administering the deceased worker's estate, or finalising the deceased worker's financial and property affairs, may fall within the definition of expense; · an expense incurred as a result of the loss of a service provided to a family member by the deceased worker. It is not intended that gratuitous or paid services provided by the worker to his or her family, or to any family business or company, be recoverable under section 92AA. The definition of maximum amount in section 92AA(1) together with section 92AA(6) clarify that the maximum payable under section 92AA per family is $30 000. Where there is more than one family member seeking reimbursement under section 92AA, it is anticipated that they will bring a joint application so the court can determine their respective claims. But if applications are made at separate points in time, the same $30 000 maximum per family will still apply. For example, if the court awards one family member a reimbursement of $20 000 under section 92AA, and subsequently a second family member comes forward and applies to the court for a reimbursement, the court may only award the later applicant up $10 000, i.e. the balance of the $30 000 maximum. New section 92AA implements this recommendation. New section 92AA(2) clarifies that a non dependent family member will not be able to recover payment under section 92AA unless-- · the injury is compensable. That is, the threshold liability requirements set out in Division 1 of Part IV of the Act must be satisfied; 53

 


 

· the worker died leaving no dependant/s including any "dependent child" as that term in defined in section 92A(1) (see notes to clause 68 on the amendments to this definition to include an unborn child of the deceased worker). Note that dependant is defined in section 5(1) to mean a person who at the time of the worker's death was wholly, mainly or party dependent on the earnings of the worker, or who would but for the incapacity of the worker due to the injury have been wholly, mainly or party dependent on the earnings of the worker; A section 92AA application must be made to the Magistrates' Court. The County Court will not have jurisdiction to hear and determine section 92AA matters. This recognises that as applications will be in respect of amounts of $30 000 or less, the Magistrates' Court is the most appropriate court to determine them. New sections 92AA(3) and (4) describe the application process. The application must-- · specify the expenses that the applicant claims he or she incurred as a result of the worker's death; · specify how the incursion of those expenses caused the applicant financial hardship; · be made within two years of the worker's death, unless the applicant applies to the Court for leave to make the application out of time and the Court has granted such leave. Note the Court may only do so if it finds that the applicant had a special excuse. This is similar to the current limitation rules--and its exception--to a dependant's claim for compensation: see section 103(7)(b) and (8). New section 92AA(5) stipulates that the Magistrates' Court may only make an order that WorkSafe or a self insurer reimburse the applicant for expenses incurred by the applicant if it is satisfied that-- · the expenses satisfy the 92AA(1) definition; · the applicant reasonably incurred those expenses as a result of the worker's death; 54

 


 

· the applicant's incursion of the expenses was reasonable and the amount of those expenses was reasonable; and · the applicant suffered financial hardship as a result of incurring the above expenses. Note, that interest is not payable on any amount ordered to be paid under section 92AA: see new section 92AA(6). Section 92AA(7) clarifies that a payment made pursuant to a court order made under section 92AA will not be treated as a compensation payment except for the following purposes, as specified-- · the Authority calculating the employer's premium; · determining contributions of employers under Division 6A of Part IV · the Authority or a self-insurer seeking indemnity from a third party under section 138; · the Authority or a self-insurer seeking a refund of payments under section 249A (i.e. where fraud or another offence against the Act or the Crimes Act 1958 has been committed in relation to the claim for compensation). Clause 70 amends section 92B(9) of the Act to-- · increase the age that a child dependant is eligible to receive a weekly pension under section 92B, if he or she is a full time student, from 21 to 25 years; and · apply the same eligibility rule to a child dependant who is a full time apprentice. Paragraph 92B(9A)(a) is intended to clarify that a child dependant's eligibility to a weekly pension will continue if the child ceases to be a full time student to become a full time apprentice, or ceases be a full time apprentice to become a full time student (provided the child is under the age of 25 years). Paragraph 92B(9A)(b) confirms that the eligibility of a child dependant will cease when the child ceases to be a full time student or a full time apprentice, or at the end of the calendar year in which the child turns 25 years, whichever occurs first. Note the definition of dependent child is amended to reflect these changes to the eligibility rules (see notes to clause 68). 55

 


 

Clause 71 inserts a new section 92D in the Act which introduces a provisional payment regime in respect of the death of a worker. The nature of the current process for claiming compensation in respect of the death of a worker means that the worker's family usually has to wait several months before receiving any payment. Such delays can cause the grieving family uncertainty, stress and financial hardship, especially where the family has been heavily reliant on the worker's earnings to pay household bills, and since the death, has incurred the costs of the worker's pre-death medical treatment and funeral expenses. The new provisional payment regime is intended to allow a deceased worker's family to obtain payments more quickly in the period immediately after the worker's death. New section 92D(1) provides that where it appears to WorkSafe or a self insurer that a person may be entitled to compensation in respect of the death of the worker, then it may make the following provisional payments to the person-- · weekly pension for up to 12 weeks after the worker's death that may be payable to the person under paragraph 92B(2)(a). This is the provision that applies where the worker has only one partner. Thus, section 92D(3) emphasises that only one partner of a deceased worker may receive a provisional payment under this provision; · medical and other costs that may be payable to the person under paragraph 99(1)(a) up to a maximum of $7500; · family counselling service costs that may be payable to the person under paragraph 99(1)(aa); · the costs of the deceased worker's burial and cremation that may be payable to the person under paragraph 99(1)(b). The decision of the Authority or a self insurer to make a provisional payment is entirely discretionary. In considering whether a person "may be entitled to compensation" as above, the Authority or a self insurer will consider whether that person satisfies threshold liability issues such as whether it appears that the worker's death was work-related and whether a person is a dependant of the deceased worker. 56

 


 

However, the Authority's or a self insurer's discretion to make a provisional payment is subject to section 92D(7). This provision sets out certain circumstances where in which the Authority or a self insurer must not make a provisional payment. These are-- · where it appears to the Authority or a self insurer that the worker died from a heart attack injury, disease or stroke injury (but not where the worker was receiving compensation in respect of the heart attack injury, disease or stroke injury before his or her death, because the Authority or the self insurer had accepted the worker's injury claim); · where the deceased worker had committed suicide; and · if the provisional payment would have to be made to a court-appointed guardian because the person is a minor or a person under a disability. Provisional payment is precluded in the above cases because, in general, such cases give rise to complex liability issues or processes that are not conducive to provisional payment. New section 92D(2) clarifies that more than one person can be paid a provisional payment under section 92D(1) in respect of the same worker's death. However, the total paid under each of paragraph 92D(1)(a)-(d) must not exceed the applicable maximum. Note the $7500 maximum for provisional payment of medical and like expenses under section 92D(1)(b) will be annually indexed pursuant to new section 100(2H) inserted by clause 72. New section 92D(4) emphasises that a provisional payment is made before liability for a claim for compensation has been determined, a provisional payment is not theoretically a payment of compensation and is not to be treated as a payment of compensation for the purpose of the Act, except for the same purposes specified in new section 92AA(7). Section 92AA(7) (inserted by clause 69) clarifies that a payment made pursuant to a court order made under section 92AA will not be treated as a compensation payment except for the following purposes-- · the Authority calculating the employer's premium; · determining contributions of employers under Division 6A of Part IV; 57

 


 

· reduction of common law damages under section 135C(7)(a); · the Authority or a self-insurer seeking indemnity from a third party under section 138; · the Authority or a self-insurer seeking a refund of payments under section 249A (i.e. where fraud or another offence against the Act or the Crimes Act 1958 has been committed in relation to the claim for compensation). Also under new section 92D(6) a provisional payment will be treated as a compensation payment if WorkSafe or the self insurer has accepted liability for the person's claim for compensation. Similarly, new section 92D(5) stipulates that a decision to make a provisional payment has no effect on the decision of the Authority or a self insurer on any claim for compensation that the person may later make. That is a separate determination made on the basis of further evidence. New sections 92D(9) and (10) operate as ouster clause. They are intended to make decisions made by the Authority or a self insurer to make a provisional payment under section 92D non-reviewable by any court or tribunal. That is because such decisions are purely discretionary. If a person is refused a provisional payment, that person may make a claim for compensation in respect of the death of the worker in the usual manner, and as prescribed in the Act. If the claim for compensation is rejected by the Authority or the self insurer, then that decision is reviewable by the Courts. Clause 72 amends section 100 of the Act. Subclause (1) inserts new sections 100(2G) and 100(2H) to provide for the annual indexation of the maximum lump sums payable under section 62 (conciliation costs), section 92AA (reimbursement of certain expenses incurred by the non dependent family members of a deceased worker) and section 92D (provisional payment). The formula is based on that in section 100(2A) for similar lump sum amounts referred to in the Act. Subclause (2) inserts new sections 100(2I) and 100(2J) to provide for the annual indexation of weekly pensions payable to the dependants of a deceased worker. It has been the practice of WorkSafe to annually index weekly pensions and the purpose 58

 


 

of this amendment is to enshrine this practice in the Act. Note, section 100(2J) prescribes a different indexation formula for cases where the worker was injured before 5 March 1990, and died more than a year after the injury is different, to other cases because of changes to the Act effective from 5 March 1990. This reflects how WorkSafe currently indexes, as a matter of practice, weekly pensions, and section 92B(10). The latter provision is rendered redundant by section 100(2J) and is repealed by clause 70(2). PART 9--TRANSPARENCY IN DECISION-MAKING AND EFFICIENT RESOLUTION OF DISPUTES Clause 74 inserts two new definitions, and revised one definition currently in, section 5(1) of the Act. Section 5(1) currently defines a registered chiropractor, dentist, osteopath, physiotherapist, podiatrist and psychologist as being a persons registered in such profession under the Health Professions Registration Act 2005. Subclause (1) inserts a new definition of registered optometrist in section 5(1). The term is employed in new section 56(5B): see notes for clause 83. Subclause (2) makes several changes to the current definition of medical question in section 5(1) to provider greater clarity and certainty about matters which may be referred to a Medical Panel. The amendment to paragraph (ac) of the definition clarifies that a Medical Panel may be referred a question, not only about the medical services provided to a worker in respect of the injury, but also about any personal and household services, and occupational rehabilitation services, so provided. In practice, such questions are often put to a Medical Panel. Current paragraph (aba) means that a Medical Panel may be asked to provide its opinion about whether the worker has-- at the time of review by the Medical Panel--a current work capacity, or has no current work capacity, and if not, then what would constitute suitable employment. New paragraph (abaa) will mean that the Medical Panel may also be asked to provide its opinion about the worker's work capacity on a particular date, or during a particular period in the past. The effect of current paragraph (c) is that a Medical Panel may be asked to provide its opinion on any past causal link between the worker's injury, or alleged injury, and his or her physical or mental condition or impairment. New paragraph (ca) will mean 59

 


 

the Panel may also be asked to provide its opinion on any current causal link between the worker's injury and his or her physical or mental condition or impairment. Similarly, current paragraph (f) means that a Medical Panel may be asked to provide its opinion on any past causal link between the worker's incapacity for worker and the injury, or the alleged injury. New paragraph (fa) will mean the Panel may also be asked to provide its opinion on any current causal link between the worker's incapacity for worker and the injury, or the alleged injury. Note that the amendment of section 5(1) of the Act by clause 28(2) further expands the definition of medical question by inserting new paragraph (abc). See the notes for clause 28. Subclauses (3) and (4) replace the definitions of suitable employment in sections 5(1) and 93D of the Act, to clarify the relationship between the two definitions and to provide further clarification regarding the scope of the concept of "suitable employment". Clause 75 amends section 43 of the Act. Currently under section 43, the jurisdiction of the Magistrates' Court in workers compensation matters under the Act is limited to determining disputes of an amount or value not exceeding $40 000: section 43(1)(b). In the case of disputes about weekly payments, it is also limited to making orders for the payment of arrears of weekly payments for a period of 130 weeks: section 43(2). Clause 75 removes these limitations on the jurisdiction of the Magistrates' Court by repealing section 43(2) and making it clear, via a revised section 43(1), that the Magistrates' Court is to have the same jurisdiction as the County Court to inquire into, hear and determine workers compensation matters. However, the concluding words of section 43(1), "unless expressly excluded by this Act", confirm that the provision is not intended to override other provisions in the Act that expressly exclude the Magistrates' Court jurisdiction, such as section 134AB(16)(b). Note, the Bill replaces references to "County Court" with "Court" throughout the Act where appropriate. 60

 


 

Clause 76 makes two important changes to the process for the court referral of medical questions to a Medical Panel under section 45. These changes are intended to improve the efficiency of the referral process and the quality of referrals. First, subclause (1) inserts new section 45(1)(b)(ii) which introduces a time limit for a party making a request to the Court for a referral. The Court will only be able to consider such a request if that party notified the Court of its intention to make the request no later than 14 days before the date fixed for the hearing of the proceeding. However, the Court will have a discretion to extend this time period in exceptional circumstances and where the Court considers that the administration of justice requires an extension. The second set of changes made by subclause (3) address difficulties often faced by a Medical Panel in practice when the medical question it is asked to provide an opinion on has underlying factual issues. That is, in order to provide its medical opinion, the Medical Panel must resolve factual issues that are intertwined with the medical issues. The difficulties arise because a Medical Panel is not equipped to resolve such factual issues. In the workers compensation area, such factual issues usually include questions such as-- · the period of time for which the worker was employed by the employer; · the nature of the worker's pre injury work duties; · whether the worker sustained an injury; · duties included in the offer of suitable employment; · the period of time for which the worker was off work; · the type of medical treatment the worker received after the injury; and · the outcome of the worker's attempt to return to work. New section 45(1D) inserted by subclause (3) is intended to overcome these difficulties. The provision is designed to promote resolution of factual issues by the Court, who is better placed to resolve them, leaving the Medical Panel to focus on the medical issues in dispute. 61

 


 

New section 45(1D) prevents the Court from referring a medical question to a Medical Panel in circumstances where factual issues underpin or are entwined with that medical question, and where these factual issues need to be resolved for the Medical Panel so that it can properly form its opinion on the medical question. The other new sections inserted by subclause (3) are sections 45(1D) to (1H). These largely relate to the procedure for the Court itself to resolve the factual issues for the Medical Panel in the above circumstances. Thus, where the Court has declined to make a referral because of section 45(1D), new section 45(1E) provides that the Court may hear evidence and make findings of fact in relation to the relevant factual issues. The process is intended to be the same as that which applies to the Court's determination of a preliminary question. It is outlined by new section 45(1E). New section 45(1F) further outlines that after making any findings of fact, the Court may refer the medical question to the Medical Panel. Section 45(1G) provides that if it does so, it must provide the Medical Panel with details of the Court's factual findings, and the Court's reasons for its findings states. This is so the Medical Panel has available to it all relevant information when forming its opinion on the medical question. New section 45(1H) states that the Medical Panel will be bound by those findings when giving its opinion. This recognises that it is the Court who is the most appropriate final arbiter of factual matters. Finally, subclause (2) replaces the reference to "County Court" to "Court" as a result of the removal of the jurisdiction of the Magistrates' Court in workers compensation matters: see clause 75. Clause 77 inserts a new section 43A in the Act to clarify that the Harman Rule has no application, and is to be taken never to have had application in or with respect to-- · claims for compensation or any other payment under the Act; · proceedings claiming compensation or any other payment under this Act; · common law proceedings seeking leave to claim damages in accordance with the Act; · common law proceedings claiming damages in accordance with the Act; and 62

 


 

· any other matter arising, under, in accordance with or in relation to the Act. The "Harman Rule" refers to the implied undertaking that attaches to certain documents received by a party in the course of legal proceedings. It prevents the use of such documents for a "collateral or ulterior" purpose: see Home Office v Harman [1983] 1 AC 280. The application of the rule in workers compensation matters would be problematic. It would mean that medical reports relating to a worker obtained in one proceeding (e.g. a serious injury application) could not be used in a later, yet related, proceeding (e.g. a common law damages claim) resulting in gaps in the evidence of the worker's medical history. It may also result in additional costs and delays in seeking medical reports so as to ascertain the worker's full medical history. In the case of Kakoullis v Transport Accident Commission [VCAT] 1051 (7 June 2006), the Tribunal ordered that the Transport Accident Commission (TAC) be released from the effect of the Harman Rule to the extent necessary for the TAC to be able to perform all of its objectives, functions and powers given to it in relation to the applicant's compensation claim. This decision suggests that the Authority, if it made a similar application to a court or tribunal, would also be relieved from the effect of the Harman Rule. It is to be noted that new section 43A is not intended to override the current secrecy provisions in the Act (sections 155, 242, 242A, 243 and 244). Clause 78 inserts a new section 49(1A) in the Act which removes the mandatory conciliation requirement of section 49(1) for any dispute that is joined to a related court proceeding. A party must apply to the Court for leave to join the dispute to the proceeding. The Court should grant such leave if the parties agree by consent orders to such joinder. Clause 79 inserts a new subsection (2A) in section 52D of the Act. Current section 52D(2) gives the Minister the power to appoint a Conciliation Officer (CO) to the Accident Compensation Conciliation Service (ACCS) on terms and conditions specified by the Minister. In practice, the Minister may seek from the Senior Conciliation Officer (SCO) advice on CO appointments, and the SCO may provide such advice. New 52D(2A) reflects this practice. 63

 


 

Clause 80 replaces current section 52F of the Act with a new section that clarifies the functions, responsibilities and duties of the SCO. The functions stated in the new section 52F reflect the current functions discharged by the SCO in the ordinary operation of the ACCS. The intention is to formalise these functions in the Act to promote transparency in the running of the ACCS. Current section 52F(1) obliges the SCO to comply with any relevant guidelines issued by the Minister. This is mirrored by new section 52F(3). However, current section 52F does not authorise the Minister to issue any such guidelines. This appears to be an anomaly which is remedied by new section 52F(2). New section 52F(4) clarifies that a reference to a "Conciliation Officer" at any place in the Act is to be taken to also include a reference to the "Senior Conciliation Officer", unless the context indicates that the reference to a CO means a reference to a CO only, such as in sections 52D, 52E, 52I(1A) (a new provision inserted by clause 81) and 52G(1). Clause 80 also inserts a new section 52FA in the Act which imposes certain reporting requirements on the SCO. New section 52FA (1) obliges the SCO to collect specific data (as listed in the provision and for each financial year) that relates to the main functions and activities of the ACCS. The SCO must, on or before 1 September of each year, collect and provide this data to the Minister. New sections 52FA(2) and (3) further oblige the SCO to make the data publicly available as soon as reasonably possible, if any person requests the SCO to do so. The ACCS already publishes similar data in its annual report. Copies of its annual reports are available on the ACCS website: www.conciliation.vic.gov.au. Therefore, new section 52FA is largely a reflection of the ACCS' current practice. The purpose of its inclusion in the Act is to maintain the transparency and accountability of the ACCS by creating legislative reporting requirements. Clause 81 inserts a new subsection (1A) in section 52I of the Act. Current section 52I(1) gives the Minister the power to remove or suspend a CO, after giving the CO an opportunity to be heard, on one of the grounds listed in (a) to (d) of that provision. In practice, the SCO may provide advice to the Minister on the removal or suspension of a particular CO on one or more of those grounds, or for any other reason. New section 52I(1A) reflects this practice. 64

 


 

Clause 82 inserts a new section 55AB in the Act. Current section 56(9A) prohibits (or purports to prohibit) a party who refuses or fails to produce any document or provide any information requested by a CO from tendering that document or information as evidence in any proceedings that relate to the dispute before the CO. The purpose of the provision is to encourage parties to conciliation to provide all relevant documents and information to the CO to promote the resolution of the dispute during the conciliation process. However, current section 61A would render section 56(9A) ineffectual. It is considered undesirable that the Act should prevent a party from tendering evidence where this would be necessary to ensure a fair hearing, and especially where that party has a reasonable explanation for not providing that document or information to the CO at conciliation. To overcome these deficiencies, sub clause 83(2) repeals section 56(9A). Clause 82 then inserts new section 55AB which imposes a positive obligation on a party to conciliation to produce all documents in his or her possession, custody or power and disclose all information to the CO that is relevant to the dispute, subject to any genuine claim for privilege or immunity. The CO may then, in his or her discretion, provide a document so produced, or information so disclosed, to the other party. Clause 83 amends section 56 of the Act. Subclause (1) inserts new section 56(5A) which obliges the Authority to pay the reasonable costs of a report provided by a registered health practitioner specified in section 56(5B) who has examined the worker if the CO requested the report and if the worker has consented to the report being provided. The registered health practitioners specified in section 56(5B) are a registered medical practitioner, dentist, optometrist, physiotherapist, chiropractor, osteopath, podiatrist or a psychologist, as defined in section 5(1). Note, the definition of a registered optometrist is being inserted into section 5(1) by clause 74. The intention of the new section is to enable a CO to obtain relevant medical evidence for the purpose of the conciliation. The obligation of the Authority or self-insurer to pay for a report arises irrespective of whether the Authority or self- insurer ultimately accepts or refuses liability for the worker's claim. New section 62(5) confirms that a payment of a report under section 56(5A) is not a payment of compensation under the Act. However, such payments will be treated as 65

 


 

compensation payments for the following purposes, as specified in section 56(5A)-- · the Authority calculating the employer's premium; · determining contributions of employers under Division 6A of Part IV; · the Authority or a self-insurer seeking indemnity from a third party under section 138; · the Authority or a self-insurer seeking a refund of payments under section 249A (i.e. where fraud or another offence against the Act or the Crimes Act 1958 has been committed in relation to the claim for compensation). Clause 84 amends section 57 of the Act by inserting new subsections (3), (4), (5) and (6). New section 57(3) requires a CO to issue an outcome certificate at the conclusion of the certificate. New subsection (4) sets out the requirements as to the form and content of the outcome certificate. The certificate must set out any terms on which the dispute was resolved and certify that the each party to the dispute is bound by the result: sections 57(4)(c) and (d). The certificate must state that the outcome certificate is evidence of the resolution of the dispute between the parties and the terms on which the dispute was resolved: section 57(4)(e). New section 57(5) clarifies that the certificate will be admissible as evidence of the resolution of the dispute at conciliation, as well as the terms on which the dispute was resolved, in any subsequent court proceedings between the parties. This is complemented by the amendment to section 61A made by clause 86 which states that outcome certificates are not included in the general prohibition against admissibility of any document prepared for the purposes of the conciliation of a dispute. New section 57(6) confirms that if the CO has issued a genuine dispute certificate pursuant to sections 49(1)(b) or 104(7) then he or she is relieved from the obligation to issue an outcome certificate under new section 57(3) as an outcome certificate would be unnecessary in these circumstances. 66

 


 

Clause 85 amends section 59(9) of the Act to increase the limit of a CO's power to direct payment of medical and like expenses under section 99 from the current limit of $2000 to $5000. Current section 59(3) provides that if a CO is satisfied that there is no genuine dispute with respect to liability to make or to continue to make weekly payments, it may direct the Authority, employer or self-insurer to pay, or continue to pay, compensation in accordance with the direction. If the dispute is, or includes, a dispute as to the liability to pay compensation for medical and like expenses under section 99, then the CO may direct the payment of such expenses up to a maximum of $2000. Because conciliation is focused on negotiation, this directions power is rarely used in practice. However, the existence of the power provides an incentive for the parties to negotiate at conciliation. Clause 86 amends section 61A of the Act to complement the amendments made to section 63 by clause 84 (as explained in the notes for clause 84). Clause 87 inserts a new section 62(2) in the Act which obliges the Authority to-- · pay the reasonable costs of the worker's transport to and/or from a conciliation conference, up to a maximum of $50 per conference; and · reimburse the worker for any loss of income sustained by the worker as a result of the worker having to take time off work to attend a conciliation conference up to a maximum of $350 per day. It is intended that the reimbursement only be available where a worker has sustained an actual loss of earnings due to his or her attendance at a conciliation conference. Thus, if he or she has taken paid leave to attend a conciliation conference, he or she will not be entitled to any payment under paragraph 62(3)(b). The above maximum amounts are prescribed in section 62(3). New section 100(2H) inserted by clause 72 provides for the annual indexation of these amounts on 1 July, in accordance with the percentage change in the consumer price index over the preceding year. This indexation formula is the same as that in section 100(2A) which applies to the indexation of other maximum amounts--as specified in section 100(2B) under the Act. 67

 


 

Clause 88 replaces both current section 63(4) and (4A) of the Act with new section 63(4). Currently, section 63(4) limits the number of persons that may constitute a Medical Panel to five. Clause 88 revises section 63(4) to remove this restriction and give the Convenor of a Medical Panel the power to appoint any number of persons to the Panel that the Convenor considers is appropriate to the case before the Panel. This recognises that for some cases, particularly where the worker's injury or condition is complex, the Panel may require additional expertise. The intention is to give the Convenor greater flexibility to appoint the expertise that he or she considers is necessary for the Panel to be able to answer the medical question/s put to it. New section 63(4) also replaces 63(4A), effectively repealing the latter, which is a redundant provision. Clause 89 makes two significant amendments to section 65 of the Act. First, it inserts a new section 65(4A)--a mirror provision to section 28LZD(1) of the Wrongs Act 1958--which gives a worker who is minor or a "person under a disability" the right to have a representative present when appearing before a Medical Panel. The term person under a disability is a new term defined in section 5(1) of the Act by subclause (1) to mean "a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to a proceeding or matter under the Act". Note, the term is similarly defined in section 28LZD(2) of the Wrongs Act 1958 (although that definition also encompasses minors). The amendment recognises the particular vulnerability of minors and persons under a disability, and their special need for assistance when appearing before a Medical Panel. It ensures fairness by giving such workers the same right to representation with respect to a proceeding under the Act, as they would have if the proceeding were one brought under the Wrongs Act 1958. Note, in practice, a Medical Panel will usually permit a worker (including a worker who is not minors, or who is not person under a disability) to be accompanied by a family member, friend or other person to provide support to the worker during his or her examination by the Panel as appropriate. This is in accordance with the current "Convenor's Directions as to the Arrangement of Business and as to the Procedures of Medical Panels" made pursuant to section 65(7). This practice is also consistent with the procedural requirements prescribed in 68

 


 

sections 65(1), (2) and (4). It is envisaged that the Medical Panel will continue this practice, as a complement to the operation of new section 65(4A). New section 65(11) is intended to provide certainty by clarifying who may be a "representative" for the purpose of the Act. It defines representative of the worker to mean-- · if proceedings have not been commenced in respect of the worker's claim--an administrator of the worker appointed pursuant to the Guardianship and Administration Act 1986; or · if such proceedings have commenced--the worker's litigation guardian appointed by the County Court pursuant to Order 15 of the County Court Rules 1999, or Order 32 of the Magistrates' Court Rules 1999, as the case may be, or person appointed by the court to be the representative of the worker for the purposes of section 65(4A). The second main change made by this clause is to insert new section 65(5A) to expressly provide a discretion to-- · the Convenor of a Medical Panel to decline to constitute the Panel; or · the Medical Panel to decline to gives its opinion on a medical question-- in circumstances where it appears to the Convenor or the Medical Panel that forming an opinion on the medical question would depend substantially on the resolution of factual issues that are more appropriately determined by the Court. New section 65(5B) provides that where the Convenor or the Medical Panel has made such a decision and the referrer of the medical question was a Conciliation Officer, the Convenor must inform the Conciliation Officer of the decision. New section 65(5C) also gives a Medical Panel the power to request from the referring court or Conciliation Officer more information about the medical question that would clarify the question or otherwise assist the Panel to form its opinion on the question. The information must be provided within the time specified in the request. Paragraph 65(5C)(b) has the effect of ensuring that the usual 60-day time limit on the Panel for providing its opinion (see section 68(1)) is suspended for this length of time. 69

 


 

Clause 90 amends section 68 of the Act to require a Medical Panel to provide a written statement of reasons for its opinion on a medical question, together with the opinion. In practice, Medical Panels often provide such written reasons at the request of the referrer. Thus, while the amendment will largely enshrine current practice, it will ensure that reasons are provided, whether they have been requested or not. This will mean that the parties have easier access to information that is relevant to the dispute. Clause 91 inserts new sections 114H to 14R in the Act. New section 114H defines a claimed employer, lodged objection and proceedings for the purposes of the Division. New section 114I clause which provides that an employer may object to an agent's written decision to accept liability, and seek a review by the Authority on the grounds that-- · the alleged worker is not a worker within the meaning of this Act; or · the claimed employer was not the correct employer of the worker at the time of the injury or death. New section 114I sets out the substantive and procedural requirements for lodging the employer objection, including the requirement to state the grounds on which the objection is made and review is sought, and to lodge the objection within 60 days of receipt of the agent's decision to accept liability. New section 114I clarifies that the employer's objection will not affect the employer's continuing obligations to the worker under this Act while the review is pending, that is, the worker will continue to receive existing benefits uninterrupted until a final decision is made under section 114N or section 114Q. If the final decision is to set aside the agent's decision, the worker will be provided with a period of notice prior to the cessation of the entitlement. New section 114J provides the Authority discretion to accept late lodgements by the employer, and the substantive and procedural requirements for the employer seeking an extension of time to lodge its objection. The Authority's decision to not accept late lodgements will not be reviewable. 70

 


 

New section 114K provides the Authority the discretion to decline to conduct a review if-- · the employer's objection relates to an objection by the employer which the Authority has previously reviewed, and the employer does not provide the Authority with new relevant information; or · the Authority considers that the objection is misconceived or lacking in substance. If the Authority declines to review an objection under this section, the Authority must notify the employer within 28 days of receiving the employer's lodged objection. New section 114L provides that the employer may, in writing, withdraw its lodged objection at any time prior to the Authority making a decision under section 114N. New section 114M provides the Authority with the discretion to suspend its review where the employer has failed to provide information requested by the Authority relevant to the review. New section 114M sets out the substantive and procedural requirements for the suspension notice the Authority must provide the employer if it suspends its review under this section. New section 114M provides that the suspension will continue until expiry of the period set out in the suspension notice, or the date the employer provides the Authority with the information requested, whichever occurs first. New section 114M provides that if the employer does not provide the information requested by the Authority within the period set out in the suspension notice, the employer will be deemed to have withdrawn the lodged objection. The employer may re-lodge the objection within 28 days of being deemed to have withdrawn its objection, if its objection is re-lodged with the information specified in the Authority's notice of suspension. New section 114M provides that if the employer does not re-lodge the objection within the 28 days of its deemed withdrawal under this section, the agent's decision to accept liability will be deemed to have been confirmed by the Authority. The Authority's deemed confirmation of the agent's decision is not reviewable. 71

 


 

New section 114N provides that the Authority, in reviewing the employer's lodged objection, must decide to either confirm or set aside the agent's decision to accept liability. The Authority must within 90 days of receipt of the employer's lodged objection either provide the employer with a written decision to-- · confirm or set aside the agent's decision in writing with reasons for the decision; or · extend the period for providing its review decision to a specified date with reasons for the extension. If the Authority fails to provide the employer with such written decision within the 90 days, the Authority is deemed to have confirmed its agent's decision to accept liability. New section 114O provides for an employer who is not satisfied with the Authority's decision on review under section 114N (including the deemed decision) and section 114K, to appeal to the Supreme Court. It also provides that such an appeal must be made by the employer within 60 days of receiving the Authority's written decision or 60 days of the decision being deemed. New section 114P provides that the employer's appeal under section 114O will be restricted to the grounds of the objection set out under 114I(1), unless the Court otherwise orders. It also provides that the Authority's case is limited to the grounds on which the Authority made a decision under section 114N, unless the Court otherwise orders. New section 114Q provides that the Supreme Court in hearing the employers appeal set out in section 114O, may make any order it thinks fit, including an order to confirm, reduce, or vary the Authority's decision on review. This is subject to section 114P. New section 114Q provides that if the Supreme Court determines that the alleged worker was not a worker under this Act or that the claimed employer was not the correct employer of the worker at the time of the worker's injury or death, the payments of compensation to the worker must cease 28 days after the date of the Court's order, or on a date which is after the Court's order to be determined by the Authority. New section 114R provides that where the worker whose claim is the subject of the employer objection under section 114I or the subsequent employer appeal, is joined as a party to the proceedings under section 114O, the Authority is liable for the 72

 


 

worker's reasonable costs as a result of the worker being joined to the proceedings. Clause 92 inserts a new section 252M in the Act which provides that it is the intention of sections 114J and 114M as inserted by clause 91 of this Bill to alter or vary section 85 of the Constitution Act 1975. Clause 93 inserts a new section 100(2A) in the Act which provides that the jurisdictional limit of the Magistrates' Court does not apply to any question or matter arising out of Part IV of this Act for which the Magistrates' Court has the jurisdiction to determine. PART 10--EMPLOYER PREMIUMS Clause 94 amends the definition of remuneration in section 5 of the Act. Subclause (1) inserts subsection (9A) which includes in the definition the fringe benefits taxable amount in respect of benefits provided by an employer to which section 57, 57A or 58 of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth (concerning exempt benefits) applies. The intention is to ensure the definition of remuneration includes fringe benefits for all classes of employers. Subclause (2) replaces subsection 5(10) with a provision which excludes from the definition of remuneration the exempt component of any motor vehicle allowance in respect of a financial year, calculated in accordance with new section 5D, and any overnight accommodation allowance that does not exceed the exempt rate, determined in accordance with new section 5E. Clause 95 replaces section 5C of the Act and inserts new sections 5D and 5E. New section 5C contains a formula for calculating the value of a fringe benefit that mirrors section 15 of the Payroll Tax Act 2007. New sections 5D and 5E contain formulas for calculating the exempt component of a motor vehicle allowance and the exempt rate of an accommodation allowance. These formulas are intended to mirror, as far as practicable, equivalent provisions in the Payroll Tax Act 2007. They will replace the rates for travelling and accommodation allowances that are currently prescribed by the Accident Compensation Regulations 2001. 73

 


 

Clause 96 inserts a new Division 4 in Part II of the Act which provides for the Minister to request an independent expert body to conduct a review of any matter relating to the setting of premiums or self insurer contributions. A review relating to the setting of premiums must be conducted once every 5 years. Clause 97 inserts a new section 248AB in the Act which introduces penalties for knowingly providing false or misleading information, or failing to provide relevant information, in a document given to the Authority or an authorised agent that relates to the calculation or collection of WorkCover premium. The new provisions apply to persons providing advice to or acting on behalf of an employer. New section 248AB(1) makes it an offence to knowingly make a false or misleading statement in any such document prepared for or on behalf of an employer, or to suggest that the employer do so. New section 248(2) makes it an offence to omit from or fail to include in such a document any material, data, fact or circumstance that is relevant to the calculation or collection of premium, or to advise the employer to do so. The maximum penalty for each offence is 180 penalty units or 6 months imprisonment for a natural person and 900 penalty units for a body corporate. Clause 98 amends section 248B(1) of the Act to require the Authority to notify the Chief Commissioner of Police in writing of any inquiry or investigation it conducts of an offence under the new section 248AB and, on request, provide the Chief Commissioner with information it obtains in the course of the inquiry or investigation. Clause 99 inserts a new section 249AA into the Act which enables an employer who is liable through the negligence of a premium adviser to pay a default penalty or late payment penalty under the Act to recover the amount of the penalty from the adviser. The premium adviser in these circumstances is made liable to pay the employer the amount of the penalty and the employer may sue for and recover that amount from the adviser in any court of competent jurisdiction. The section does not exonerate the employer from the liability under the Act to pay the penalty. Clause 100 inserts a definition of estimated future claim cost into section 3(1) of the Accident Compensation (WorkCover Insurance) Act 1993. 74

 


 

Clause 101 amends section 7 of the Accident Compensation (WorkCover Insurance) Act 1993. Subclause (1) amends section 7(1)(a) of that Act to clarify the liability for which a WorkCover policy indemnifies the employer. Subclause (2) amends section 7(1)(b) as a consequence of subclause (4). Subclause (3) increases the penalty for failing to keep a policy as required by section 7(1) to 240 penalty units for a natural person and 1200 penalty units for a body corporate. Subclause (4) inserts new sections 7(1AAA) and 7(1AAB) to authorise the Authority to permit a trustee who is an employer in respect of several businesses carried on under trusts to keep separate WorkCover insurance policies in respect of those businesses or clusters of businesses that are independent from and unconnected to the other businesses for which the trustee is the employer. Subclause (5) inserts new sections 7(3A) to 7(3)(D). · New section 7(3A) deems an employer who is required to obtain and keep in force a WorkCover insurance policy, and fails to do so for any period of time, to have a policy in force for that period. · New section 7(3B) makes the employer liable to pay premium for any period of time for which the employer is deemed under section 7(3A) to have held a WorkCover insurance policy and any penalty under amended section 7(6) for not complying with the requirement to obtain and keep a policy in force for that period. The amount of premium and penalty is to be specified in a written notice. · New section 7(3C) contains a formula for calculating the amount of premium payable for any part of a policy period for which the employer is deemed to have held a policy. · New section 7(3D) authorises the Authority to recover from the employer under section 61 any premium or default penalty specified in a notice to the employer under new section 7(3B) that the employer fails to pay. 75

 


 

Subclause (6) substitutes new sections 7(6), 7(6A) and 7(6B) for current section 7(6) to establish a default penalty for not holding a WorkCover insurance policy. Subclauses (7) and (8) make consequential amendments to sections 7(7) and 7(7A). Clause 102 amends section 9(2)(a), and repeals section 9(3), of the Accident Compensation (WorkCover Insurance) Act 1993 to align the liability of the Authority and the employer as set out in a WorkCover insurance policy with the employer's liability as provided by section 7(1)(a) (as amended by clause 101). Clause 103 amends section 16(2) of the Accident Compensation (WorkCover Insurance) Act 1993 to provide for a premiums order to include provisions relating to the avoidance of premium. Clause 104 inserts a new section 17A in the Accident Compensation (WorkCover Insurance) Act 1993 to provide that the Authority may serve on an employer a notice of premium payable and that the notice may include a notice of penalty. Clause 105 amends section 21 of the Accident Compensation (WorkCover Insurance) Act 1993 to provide that a notice of adjusted premium is to be served on the employer and may include a notice of penalty. Clause 106 inserts a new section 21A in the Accident Compensation (WorkCover Insurance) Act 1993 which authorises the Authority to serve a notice of premium in respect of a period for which the employer has been deemed to be insured. New section 21A(2) provides that the period in respect of which a notice may be issued may be the latest policy period for which the employer is deemed to have been insured and 4 completed policy periods immediately preceding that period or, in the event of fraud by the employer or by anyone acting or apparently acting on the employer's behalf, any completed policy period. New section 21A(3) specifies that, despite subsection (2), the Authority may have regard to any matter that is relevant to the calculation of premium under the Act and the relevant premiums order, including the claims history of an employer for any period. This provision is intended to permit the Authority to take into account periods when an employer is deemed to be insured as well as when a policy is in fact held. 76

 


 

Clause 107 repeals section 22 of the Accident Compensation (WorkCover Insurance) Act 1993 as a consequence of amendments made by clause 114. Clause 108 inserts a new section 26A in the Accident Compensation (WorkCover Insurance) Act 1993 to establish a statutory power for the Authority to deal with premium avoidance schemes. The new provision is to be read in conjunction with the premiums order, which contains definitions of terms used. New section 26A(1) empowers the Authority to determine that the premium payable by an employer is the amount that would have been calculated or might reasonably be expected to have been calculated if a premium avoidance scheme within the meaning of the relevant premiums order had not been entered into or carried out. New section 26A(2) requires the Authority to advise the employer of the determination by notice in writing. New section 26A(3) makes an employer who has or would have obtained a premium benefit in connection with a premium avoidance scheme liable to pay a default penalty. The penalty is twice the difference between the premium determined under subsection (1) and the premium paid or payable but for that determination. New sections 26A(4) and 26A(5) provide that the penalty is due and payable within 28 days of the notice and may be remitted in whole or part by the Authority New section 26A(6) provides that, if the Authority makes a determination under subsection (1), the premium payable by the employer is the amount specified in the determination. Clause 109 repeals sections 27, 28, 28A and 28B of the Accident Compensation (WorkCover Insurance) Act 1993 as a consequence of amendments made by clause 114. Clause 110 amends section 29(1) of the Accident Compensation (WorkCover Insurance) Act 1993 as a consequence of amendments made by clauses 109 and 114. Clause 111 amends section 31 of the Accident Compensation (WorkCover Insurance) Act 1993 as a consequence of amendments made by clauses 109 and 114. Clause 112 amends section 31A of the Accident Compensation (WorkCover Insurance) Act 1993 to empower the Authority to offset any refund of premium owed to an employer, including any interest, against any premium owed by the employer to the Authority for any policy period. 77

 


 

Clause 113 amends section 31B(1)(a) and 31B(2) of the Accident Compensation (WorkCover Insurance) Act 1993 as a consequence of amendments made by clauses 109 and 114. Clause 114 inserts a new Part 2A in the Accident Compensation (WorkCover Insurance) Act 1993 which provides for the review of premium. Part 2A comprises new sections 32 to 36M. New section 32 contains definitions for the purposes of the Part. New section 33 provides for an employer who has been served a notice of premium, adjusted premium or a default penalty to apply for review of the specified premium or penalty. It also provides for review of an estimated claim cost, but only on the grounds that the estimate is erroneous because of a coding error or other data entry error in relation to that claim. Subsection (2) requires the Authority to review the premium, default penalty or estimated claims cost, or decide not to do so, in accordance with Part 2A. New section 34 requires an employer who applies for review under Part 2A to pay the premium or default penalty specified in the relevant notice, together with any late payment penalty or interest, by the due date set out in the notice. An employer who fails to do so will be liable to pay a late payment penalty calculated in accordance with subsection (3). Subsection (4) authorises the Authority to remit some or all of the late payment penalty for which the employer may be liable under this section. New section 35 is an ouster clause. It prohibits the employer from bringing any proceedings in respect of any question concerning a notice of, or the amount of, premium payable or purportedly payable except as provided in Part 2A. New section 36 specifies the time for lodging, and form of, the application for review. New section 36A authorises the Authority to permit an employer to lodge an application out of time. Subsection (4) is an ouster clause that prohibits proceedings being brought to review a decision made by the Authority under this section. New section 36B permits the Authority to decline an application for review within 28 days of receiving it if it concerns matters that the Authority has already reviewed and contains no new relevant information or if the Authority considers it is misconceived or lacking in substance. 78

 


 

New section 36C permits the employer to withdraw an application for review at any time before the Authority makes a determination under section 36F. New section 36D specifies that the time period within which the Authority must conduct the review is 90 days from receipt of the application unless it is extended by agreement between the Authority and the employer or to allow the Authority to conduct an inspection. New section 36E authorises the Authority to suspend a review by notice in writing until the employer provides information specified in the notice or until a date specified the notice, whichever occurs first. An employer who does not provide the information requested by the date specified in the notice is deemed under subsection (3) to have withdrawn the application. However subsections (4) and (5) permit the employer to again apply for review within 60 days of the date of deemed withdrawal if the application is accompanied by the information specified in the notice of suspension. New section 36F requires the Authority to confirm or adjust the premium penalty or estimated future claim cost after reviewing the application and give the employer written notice of the determination and the reasons. In the event of fraud by the employer or anyone on the employer's behalf, the Authority may recover premium in respect of any policy period. In all other cases, if the premium is increased, the Authority may recover premium from the employer only in respect of the policy period at the date of the application for review (or the most recent deemed policy period if the relevant premium notice relates to deemed policy periods) and any of the four completed policy periods before that period. Similarly, if the premium is reduced, the periods in respect of which the employer may be repaid premium are limited to the policy period current at the date of the application for review (or the most recent deemed policy period if the relevant premium notice relates to deemed policy periods) and any of the 4 completed policy periods before then. New section 36G specifies when premium must be paid or repaid following a determination. New section 36H makes the Authority liable to pay interest on amounts that are refunded to the employer following a review under Part 2A or an appeal under section 36J, if the overpayment was not due to inaccurate or incomplete information provided by the employer or information revised by the employer after service of the premium notice. 79

 


 

New section 36I deems the Authority to have made a determination under section 36F to confirm the premium, default penalty or estimated claims cost if it does not issue a determination under section 36F, a notice under section 36B declining to conduct the review, or a notice of suspension under section 36E, within 90 days of receiving the application or by the end of the extended period permitted by section 36D(2). New section 36J provides for the employer to appeal to the Supreme Court against a determination under section 36F or a decision under section 36B not to conduct a review. New section 36K provides for the Supreme Court to make any order it thinks fit and to confirm, reduce or vary the premium. New section 36L replicates current sections 27(1) and 27(2) which authorise the Authority, in its absolute discretion, to review the amount calculated as premium in respect of any policy period and having regard to any relevant matter. New section 36M restates current sections 28(1) and 28(2) which requires that if, as a result of a review that it has conducted at its discretion, the Authority is of the opinion that the amount calculated as the premium is or was not calculated in accordance with the relevant premiums order, it must adjust the amount of premium accordingly by notice in writing to the employer. Clause 115 makes a consequential amendment to section 58 of the Accident Compensation (WorkCover Insurance) Act 1985. Clause 116 replaces section 66(2), (3), (4) (5), (6) and (7) of the Accident Compensation (WorkCover Insurance) Act 1985, which specify the level of ownership or control required for an interest in a business to be a controlling interest, to mirror section 72 of the Payroll Tax Act 2007. Clause 117 inserts into section 66A of the Accident Compensation (WorkCover Insurance) Act 1985 subsection (3A) which permits the Authority to offset some or all of any excess premium paid by an employer that is a member of a group against any premium owed by another member of that group. Clause 118 amends section 71(2) of the Accident Compensation (WorkCover Insurance) Act 1985 to correct an error in the terminology used. References to a "notice of assessment" are placed with references to a "notice of premium or adjusted premium". 80

 


 

Clause 119 inserts into section 77 of the Accident Compensation (WorkCover Insurance) Act 1985 subsection (3) which specifies that it is the intention of new section 35 (preventing proceedings in respect of any question concerning a notice of premium except as provided in Part 2A) and section 36A(4) (preventing review of a decision not to grant permission to lodge an application for review under Part 2A out of time) to limit the jurisdiction of the Supreme Court. Clause 120 makes consequential amendments to section 57 of the Accident Compensation (WorkCover Insurance) Act 1993. PART 11--RECOVERIES Clause 121 amends section 138 of the Act to prohibit the use of "hold harmless" clauses by a third party against an employer, in relation to any liability that may arise under section 138. It provides that a term of any contract that requires the employer or has the effect of requiring the employer to indemnify the third party in respect of any liability that the third party has or may have in relation to recovery proceedings under section 138, is void. (Section 138 provides that the Authority, a self-insurer or employer is entitled to be indemnified by a third party in circumstances where a third party is legally liable or would be legally liable except for the Act for an injury or death for which compensation has been paid or may be payable under the Act). Clause 122 Amends section 138 of the Act by inserting the following new subsections-- · New section 138(6)--enables the Authority to choose to recover on behalf of the employer any indemnity that the employer is entitled to against a third party under section 138. The Authority must obtain the employer's consent before seeking this indemnity. · New section 138(7)--provides that the Authority has absolute discretion as to how to disperse an amount that the authority recovers from a third party on behalf of the employer. · New section 138(8)--prohibits any appeal or review of any decision made by the Authority as to whether or not to recover on behalf of an employer. 81

 


 

· New section 138(9)--defines proceedings for the purpose of new section 138(8) to include an inquiry, hearing, determination, administrative review or any other action. Clause 123 inserts a new section 252I in the Act which provides that it is the intention of section 138 of the Act as amended by clause 122 of this Bill to alter or vary section 85 of the Constitution Act 1975. PART 12--SELF-INSURANCE Clause 124 amends the definition of self-insurer in section 5(1) of the Act to include a body corporate that has ceased to be a self-insurer but who has retained liability for its tail claims either by way of electing to retain the liability (prior to the commencement of section 3 of the Accident Compensation Amendment Act 2007) or through entering into an arrangement with the Authority. This means that the relevant provisions governing self-insurers in the Act will continue to apply to these former self-insurers in relation to their management of claims, up until such time as the former self-insurer ceases to be liable for those tail claims. Clause 125 repeals section 33A of the Principal Act. This is an amendment consequential to clause 126 (new section 146). Clause 126 substitutes Part V of the Principal Act. · New section 139 amends section 139 of the Act to update and streamline the definitions. It also removes the ability of a partnership to apply to become self- insured. · New section 139A confirms and restates the existing exclusions of student workers in Part V. · New section 139B restates the current section 139B of the Act. · New section 140 introduces an "eligibility fee" to be paid when a scheme-insured body corporate applies for a determination as to whether it is eligible to apply for approval as a self-insurer (not when an existing self- insurer is re-applying for approval). It also provides that an employer's eligibility to make an application to become a self-insurer will expire after 12 months 82

 


 

from becoming eligible. It clarifies (modelled on regulation 19 of the Accident Compensation Regulations 2001) that the minimum requirements as to financial strength and stability that a body corporate must possess in order to be eligible to apply to become self-insured are that it is, and would be capable, of meeting its claims liabilities as and when they fall due. · New section 141 is a revision of current sections 141 and 141A of the Act. It extends the classes of body corporates that may be approved as a self-insurer, by enabling the Authority to use its discretion to allow approval of a body corporate as a self-insurer where it has determined that the body corporate will imminently cease to be a subsidiary of another body corporate that is currently approved as a self-insurer. It also requires that applications for self-insurance must be completed by the employer applying to become self-insured within 12 months from the date the application is received by the Authority. · New section 141A provides that the Authority may estimate the rateable remuneration that an applicant employer will pay during a particular period, in order to enable an estimate of remuneration to be used by the Authority in determining the amount of contribution payable by a self-insurer, in circumstances where the self-insurer had no actual remuneration during the relevant period. Requires an applicant employer to provide any information requested by the Authority in order to make the estimate; failure to provide the information within 28 days will result in a deemed withdrawal of the application. · New section 141B provides that at the end of the relevant year-- · if an application fee paid by an employer was based on an estimate of rateable remuneration; and 83

 


 

· if the rateable remuneration of the applicant employer varies by 10% or more from the original estimated rateable remuneration-- then the difference between the fee paid and the amount that would have been payable if the actual rateable remuneration had been used to calculate the fee, is payable where applicable by the self-insurer to the Authority, or reimbursable to the self-insurer from the Authority. · New section 142 renumbers and revises current sections 142 and 142A of the Act. · New section 142(1) restates current section 142(1) of the Act. · New section 142(2) restates current section 142A of the Act. · New section 142(3) restates current section 142 of the Act and prohibits the Authority from approving an employer as a self-insurer if the Authority is not satisfied that the employer is fit and proper to be a self- insurer. · New section 142(4) restates and extends current section 142(2) of the Act and sets out matters which the Authority must have regard to in determining whether an employer is fit and proper to become a self-insurer. The matters include whether a self-insurer has failed to comply with the terms of a Ministerial Order or any other subordinate instrument under the Act, in addition to the other pre-existing criteria. The Authority may also have regard to any other matters as it thinks fit. · New section 142A replaces the pre-existing requirement that a self-insurer's approval is subject to prescribed terms and conditions, with a requirement that an approval is subject to the terms and conditions specified in a Ministerial Order. It also empowers the Minister to make a Ministerial Order setting out the terms and conditions of approval of a self-insurer, including the surcharge to be applied under section 146(5), the information to be included in a return to be submitted under section 146A and the requirements relating to a self-insurer's contingent liability insurance contract. 84

 


 

· New section 143 restates and renumbers current section 144 of the Act. · New section 143(1) prohibits the Authority from refusing to approve an employer as a self-insurer, unless the Authority has given at least 28 days written notice to the applicant employer, advising of-- · the intention to refuse the approval; and · the reasons for the intended refusal; and · provides that the employer may submit in writing further support for the application within 28 days of receiving the notice. · New section 143(2) requires the Authority to consider any such submission received, and to subsequently advise the employer in writing of its decision. · New section 144(1) clarifies that the date of approval as a self-insurer commences on a date determined by the Authority and notified to the employer. · New section 144(2) provides the Authority with a discretion to allow subsequent approvals of self-insurers to be for a period of six years, rather than the standard period of four years. It is intended that the granting of an approval to self-insure should come with a commitment by employers to high standards. Accordingly, a six year term of approval is only to be available to those self-insurers who have driven improvements in safety, injury management and return to work. This discretion is to be exercised carefully and in response to good performance. · New section 144(3) enables the Authority to extend a self-insurer's term of approval for up to six months at the Authority's discretion, if the self-insurer is undergoing a corporate restructure. · New section 144(4) enables the Authority to continue a self-insurer's term of approval for a period of time at the Authority's discretion for up to 6 months after the date on which the approval of the employer as a self-insurer would otherwise cease, if the self-insurer becomes the subsidiary of another body corporate. 85

 


 

· New section 145 renumbers and revises current section 148 of the Act. · New section 145(1) confirms that the Authority may at any time review the approval of a self-insurer. · New section 145(2) includes new grounds which may lead to a review of a self-insurer's approval, being where the employer undergoes a corporate restructure, or the employer acquires the assets and employees of another company but not the company itself. · New sections 145(3) and (4) require the Authority to review a self-insurer's approval on new grounds, being where the Authority considers that the self-insurer is no longer able to meet its claims liabilities as they fall due, the self-insurer becomes the subsidiary of another Australian body corporate, and if the Authority is satisfied that the self-insurer is no longer fit and proper to be a self-insurer. · New section 145(5) requires a self-insurer or subsidiary of a self-insurer to notify the Authority in writing within 28 days of any of the circumstances set out in section 145(2) to (4) occurring. It is an offence for a self-insurer to fail to comply with this requirement. It provides that for a breach of this offence, 60 penalty units apply for a natural person and 300 penalty units for a body corporate. · New section 145A renumbers and revises current section 149 of the Act. · New section 145A(1) introduces new grounds for the Authority to revoke the approval of a self-insurer, being-- · where the Authority considers that the self- insurer is no longer able to meet its claims liabilities as they fall due; · the self-insurer becomes the subsidiary of another Australian body corporate; and · if the Authority is satisfied that the self-insurer is no longer fit and proper to be a self-insurer. 86

 


 

· New section 145A(2) confirms that the Authority may revoke approval as the result of a review of approval under section 145, and where the self-insurer has failed to comply with the Act, regulations, a Ministerial Order or subordinate instrument under the Act or any terms and conditions of approval as a self-insurer. · New section 145A(3) restates and renumbers current section 149(2) of the Act. · New section 145A(4) excludes revocations resulting from a request by a self-insurer for the revocation from the 28 day notice period that the Authority is otherwise required to provide. · New section 145A(5) clarifies that the Authority must consider a written submission received from a self- insurer in response to receiving notice of the intention to revoke approval. · New section 145A(6) clarifies the purpose of the two notices that the Authority is required to provide, being one initial notice of intention to revoke, and being a second notice (if the Authority decides to revoke the approval) to be provided at the expiry of 28 days from the Authority's initial notice of intention to revoke (and consideration of any submission from the self-insurer), to give written notice of the actual revocation. · New section 145A(7) provides that revocation of an employer's approval as a self-insurer takes effect immediately after the day on which a notice of revocation is given to the employer. · New section 145B introduces the requirement that a self-insurer who has had its approval revoked by the Authority is to pay the costs incurred by the Authority in relation to the revocation, including the cost of any actuarial services used to determine the employer's outstanding liabilities. · New section 145C restates and renumbers current section 151B of the Act. 87

 


 

· New sections 146(1), (2) and (3) restate and renumber current sections 33A(1) and 33A(2) of the Act, to set out the requirements on self-insurers relating to the payment of contributions to the WorkCover Authority Fund. · New section 146(4) enables the Authority to vary the due date of a contribution at its discretion. · New section 146(5) restates and renumbers current section 33A(3) and provides that the surcharge for failing to pay a contribution within 14 days of the due date is the amount specified in a Ministerial Order. · New section 146(6) restates section 33A(7) of the Act. · New section 146A(1) requires self-insurers to submit a return in accordance with a Ministerial Order, so that the Authority can determine the amount of contributions payable. · New section 146A(2) restates and renumbers current section 33A(5) of the Act. · New section 146A(3) restates and renumbers current section 33A(6) of the Act, and increases the applicable penalty for a breach of the section to 120 penalty units for a natural person and 600 penalty units for a body corporate. · New section 147 restates and renumbers current section 143 of the Act, and extends the liability of self- insurers to include "any other payments" payable under the Act or at common law. "Any other payments" includes provisional payments payable under new section 92D to dependants of a deceased worker and the re-imbursement of expenses incurred by a non- dependant family member of a deceased worker payable under new section 92AA. · New section 147A restates and renumbers current section 143A of the Act. 88

 


 

· New section 148(1) renumbers and revises current section 146(1) of the Act, by providing that the contract of insurance for contingent liabilities that a self-insurer must hold at all times is to be in accordance with a Ministerial Order (rather than Regulations, as previously applied). Also clarifies that an employer that is approved as a self-insurer must ensure that the relevant guarantee and contract of insurance must be in force at all times, from the date that an employer's approval as a self-insurer takes effect and until such time as the Authority assumes the liability for the self- insurer's tail claims under section 151D. · New section 148(2) renumbers and restates current section 146(1) and (5) of the Act. · New section 148(3) rationalises and simplifies the meaning of assessed liabilities of an employer as set out in current section 146(5) of the Principal Act for the purposes of determining the amount of the guarantee, and includes a new prospective component, for claims expected to arise in the 12 months after the assessment of liabilities. · New section 148(4) renumbers and restates current section 146(5) of the Principal Act to confirm that an assessment of the employer's liabilities must be carried out by an actuary approved by the Authority, and be carried out in accordance with guidelines approved by the Authority at least once a year. · New section 148(5) renumbers and restates current section 146(4) of the Act. · New section 149 restates current section 149 of the Act. · New section 150(1) allows employers who become approved as a self-insurer to assume liability for and responsibility for managing their tail claims (those claims relating to injuries incurred prior to an employer becoming self-insured). 89

 


 

· New section 150(2) requires employers that assume tail claims (after the commencement of this provision) to provide the Authority with a guarantee (on the date approval as a self-insurer takes effect) in accordance with section 150B. · New section 150(3) provides that the self-insurer commences liability and responsibility for the tail claims upon the provision of the required guarantee. · New section 150(4) provides that in the event a body corporate that is approved as a self-insurer does not elect to assume the liability for its tail claims, the Authority will retain liability and responsibility for management of the self-insurer's tail claims. · New section 150(5) defines the term tail claims in the context of section 150, to mean those claims of an employer, regardless of when made, in respect of an injury or death-- · incurred by a worker employed by the employer or by the employer's subsidiaries before the date the approval of the employer as a self-insurer took effect; and · which entitles that worker, the worker's dependants or the worker's family members to compensation or any other payments under the Act or at common law. · New section 150A allows a self-insurer that acquires a new body corporate, where such business is a scheme- insured employer, to elect to assume the liability and responsibility for management of the acquired body corporate's tail claims. · New section 150A(1) applies this section to a self- insurer that wholly acquires a scheme-insured body corporate as a subsidiary. 90

 


 

· New section 150A(2) and (3) require a self-insurer to provide written notice to the Authority of the acquisition of a scheme-insured body corporate, and to state whether the self-insurer intends to acquire the tail claims within 28 days after acquiring the body corporate. · New section 150A(4) requires employers that assume tail claims of an acquired body corporate to provide the Authority with a guarantee (on the date agreed to as the date on which liability for and management of the tail claims is transferred) in accordance with section 150B. · New section 150A(5) provides that the self-insurer commences liability and responsibility for the tail claims upon the provision of the required guarantee. · New section 150A(6) provides if the self-insurer does not elect to assume the liability for tail claims of a newly acquired body corporate, the Authority will retain liability and responsibility for management of the tail claims of the body corporate. · New section 150A(7) defines the term tail claims in the context of section 150A, to mean those claims of a body corporate acquired by a self-insurer, regardless of when made, in respect of an injury or death-- · incurred by a worker employed by the employer or by the body corporate before the date the body corporate is acquired by the self-insurer; and · which entitles that worker, the worker's dependants or the worker's family members to compensation or any other payments under the Act or at common law. It also defines the term transfer date, to mean the date agreed between the Authority and self-insurer as the date on which liability and responsibility for managing the tail claims of the body corporate is to commence. · New section 150B(1)and (2) require self-insurers to hold at all times (if applicable) a guarantee in respect of liabilities assumed for any of its own tail claims or the tail claims of a body corporate the self-insurer has acquired, under section 150 or section 150A. 91

 


 

Provides that an employer that is approved as a self- insurer must ensure that the relevant guarantee must be in force at all times, from the date that the employer assumes liability for the tail claims and until such time as the Authority assumes the liability for the self- insurer's tail claims under section 151D. · New section 150B(3) sets out the requirements relating to the guarantee, being that the guarantee is in a form approved by the Authority, is given by an authorised deposit-taking institution in favour or to the Authority and guarantees at least one and a half times the amount of the assessed tail claims liability of the employer or body corporate. · New section 150B(4) specifies that the term assessed tail claim liability of an employer or body corporate for the purpose of this section means the actuarial value of the current, non-current and contingent liabilities of the employer or body corporate for tail claims under the Act. · New section 150B(5) requires the assessment of the tail claim liability to be carried out by an actuary approved by the Authority, and to be in accordance with guidelines approved by the Authority, and carried out at least once a year. · New section 150B(6) requires the employer to make provision in its accounts for current, non-current and contingent tail claim liabilities and to permit an actuary approved by the Authority to inspect the employer's books. · New section 150C(1) and (2) empowers the Minister to issue a Ministerial Order (by publishing notice in the Government Gazette) in relation to the arrangements for a self-insurer to assume liability for tail claims (of itself or an acquired body corporate), and specifying the method of calculating the settlement amount that must be paid by the Authority to the self-insurer in exchange for the self-insurer assuming liability for the tail claims, and the manner in which the amount is to be paid. 92

 


 

· New section 150C(3) requires the Authority to pay (in accordance with the Ministerial Order) the self- insurer a settlement amount in exchange for the self- insurer assuming liability for the tail claims. · New section 150D(1) applies this section to an employer that is approved as a self-insurer and that has assumed liability and responsibility for the management of tail claims of an acquired body corporate under section 150A. · New section 150D(2) requires a self-insurer that has assumed liability and responsibility for the management of tail claims of an acquired body corporate, if the acquired body corporate is subsequently divested (whether wholly or in part), to retain liability and responsibility for the management of that body corporate's tail claims until the self-insurer itself ceases to be self-insured. · New sections 151(1) and (2) restate section 151 of the Principal Act, and clarify that unless otherwise specified by the Authority, on and from the exit date, the Authority will assume the liability and responsibility for the tail claims of the employer. · New section 151(3) requires the employer, unless otherwise allowed by the Authority, to provide to the Authority, all claims and other relevant documents in its possession relating to its tail claims within 28 days after the employer ceases to be a self-insurer. Introduces a penalty of 500 penalty units for a breach of this requirement by a body corporate self-insurer. · New section 151(4) defines the term exit date to mean the date on which the employer ceases to be a self- insurer, or the date that an employer was declared in the Government Gazette to cease to be liable for its tail claims (only employers who ceased to be a self-insurer on or before 15 August 2007 can be declared in the Government Gazette). 93

 


 

It also defines the term tail claim to mean in relation to section 151, for an employer that ceases to be a self- insurer-- · a claim regardless of when made, in respect of an injury or death-- · incurred by a worker employed by the employer or by a subsidiary of the employer while the employer was a self- insurer; and · which entitles that worker, the worker's dependants or the worker's family members to compensation or any other payments under the Act or at common law; or · a claim for which the employer assumed liability under section 150(3) or 150A(5), when it commenced as a self-insurer or acquired a self- insurer; or · a claim for which the employer assumed liability by agreement with the Authority before the commencement of the Bill. · New sections 151A(1) to (4) revise and renumber curent section 151 of the Act. · New section 151A(5) requires the employer to pay the cost of conducting the actuarial assessment of the tail claims liabilities of the employer following the employer ceasing to be self-insured and returning to the scheme, together with any money owed to the actuary by the Authority in relation to the actuarial assessment. · New section 151A(6) deems that any amount paid by the Authority to the actuary in relation to the actuarial assessment is subject to interest at the prescribed rate and that both the amount and the interest are a debt of the employer due to the authority. · Section 151B of the Principal Act is amended to provide that if the Authority has assumed the liability for the tail claims of an employer that has ceased to be a self- insurer, the Authority must give written notice to the 94

 


 

employer stating the amount of the tail claims liabilities within 28 days after the Authority assumes those liabilities. · New section 151C renumbers and revises current sections 151(6), (7) and (8) of the Act. · New section 151C(1) requires the Authority to ensure that an actuary undertakes an annual assessment of the tail claims liabilities of the former self-insurer that has returned to the scheme. · New section 151C(2) requires the Authority to give written notice to the employer stating the amount of the assessed liability of the tail claims liabilities. · New section 151C(3) requires the employer to pay to the Authority any difference between the revised assessment of the tail claims liabilities at the end of the third year of the liability period and the initial assessment, if the revised assessment exceeds the initial assessment of the tail claims liabilities. · New section 151C(4) requires the Authority to pay to the employer any difference between the revised assessment of the tail claims liabilities at the end of the third year of the liability period and the initial assessment, if the revised assessment is less than the initial assessment of the tail claims liabilities. · New section 151C(5) requires the employer to pay to the Authority any difference between the revised assessment of the tail claims liabilities at the end of the sixth year of the liability period and the revised third year assessment, if the sixth year assessment exceeds the third year assessment of the tail claims liabilities. · New section 151C(6) requires the Authority to pay to the employer any difference between the revised assessment of the tail claims liabilities at the end of the sixth year of the liability period and the revised third year assessment, if the sixth year assessment is less than the third year assessment of the tail claims liabilities. 95

 


 

· New section 151C(7) requires the employer to pay any amount owed in relation to the revised assessments to the Authority within 28 days of receiving a notice of the revised assessment from the Authority, unless a further time period is agreed between the Authority and employer. · New section 151C(8) provides that the failure by the employer to pay within 28 days any amount owed in relation to the revised assessments will incur interest at the prescribed rate, and that the amount owed and the interest is deemed to be a debt due to the Authority. · New section 151C(9) defines liability period for the purpose of section 151C to mean the period of 6 years starting from the exit date (the date on which the employer ceases to be a self-insurer, or the date that an employer was declared in the Government Gazette to cease to be liable for its tail claims). · New section 151D(1) applies the section to circumstances where the Authority has assumed the liability for the tail claims of an employer that has ceased to be a self-insurer. · New section 151D(2) requires that where a self-insurer ceases to be a self-insurer and returns to the scheme, the former self-insurer must maintain until the final assessment date (6 years after ceasing to be a self- insurer), a guarantee equivalent to 50% of the outstanding liabilities for the period during which the liabilities are estimated to fall due. · New section 151D(3) introduces a penalty for an employer that fails to provide the guarantee as required. For a body corporate a penalty of 600 penalty units applies, and in the case of a continuing offence 300 penalty units per day. · New section 151D(4) sets out the requirements of the form of the guarantee, being that the guarantee must be in a form approved by the Authority and be given by an approved deposit taking institution in favour of or to the Authority. 96

 


 

· New section 151D(5) enables the employer with the Authority's approval, following receipt of a notice of a revised assessment of tail claims liabilities under section 151C, to provide a new guarantee in a form approved by the Authority to replace the existing guarantee. This new guarantee can continue until the final assessment date. · New section 151D(6) enables the Authority to recover under the guarantee for loss suffered by the Authority if the former self-insurer fails to make a required payment, or becomes wound up, ceases trading, or is put under administration or receivership or the like. · New section 151D(7) provides that for the purpose of any proceeding commenced by the Authority to recover under a guarantee in section 151D, a certificate signed by an officer or employee of the Authority certifying that-- · any specified event referred to in subsection (6)(a) or (6)(b) of section 151C has occurred; and · that the Authority has sustained a loss of a specified amount as a result of that event-- is taken to be evidence of the matters stated in the certificate and to be proof of those matters in the absence of any evidence to the contrary. · New section 151D(8) provides that section 151D applies to an employer that has ceased to be a self- insurer, irrespective of the date that the employer ceased to be a self-insurer. · New section 151D(9) defines the term final assessment date to mean-- · the date a payment is made, if a payment is required under section 151C(5); or · if no payment is required, the date 28 days after the notice of a revised assessment is received under section 151C in relation to the sixth year assessment. 97

 


 

It also defines interim assessment date, to mean-- · the date the payment is made, if a payment is required under section 151C(3); or · if no payment is required, the date 28 days after the notice of a revised assessment is received under section 151C in relation to the sixth year assessment. · New section 151E sets out the procedure for resolving disputes between a former self-insurer who has ceased to be covered by the scheme and the Authority, in relation to the final revised assessment of liabilities. · New section 151E(1) allows an employer to appoint an actuary to review the final revised assessment at the end of the liability period, if the employer disputes the final revised assessment. · New section 151E(2) requires the employer to pay the cost of conducting the review by an actuary. · New section 151E(3) requires the employer's appointed actuary to provide comments to the actuary that made the final revised assessment, within 28 days of the employer's receipt of the final revised assessment. · New section 151E(4) enables the Authority and employer to agree to jointly appoint another actuary to review the final revised assessment and to be bound by that actuary's decision, if the employer's appointed actuary and the actuary who made the final revised assessment are unable to reach agreement. · New section 151E(5) provides that the cost of a review by a jointly appointed actuary in (4) is to be shared equally by the Authority and the former self-insurer. · New section 151E(6) provides if the employer's appointed actuary and the actuary who made the final revised assessment are unable to reach agreement, but the employer and the Authority do not agree to jointly appoint an actuary within 28 days after the employer's appointed actuary provides comments to the actuary that made the final revised assessment, then the final revised 98

 


 

assessment under section 151 is binding on the employer and the Authority. · New section 152 renumbers and revises current section 151A of the Act. · New section 152(5) introduces a new requirement that the employer must give to the Authority all claims and other relevant documents relating to the tail claims of the subsidiary of the body corporate that becomes a non-WorkCover employer, that are in the possession of the employer, no later than 28 days after the exit date. It also introduces a penalty of 500 penalty units in relation to this requirement. This is for consistency with the requirement and penalty that apply to employers in new section 151(3), that applies where an employer ceases to be a self-insurer. · New section 152(6) defines the term tail claims for the purpose of section 152 to mean those claims of an employer that ceases to be a self-insurer, regardless of when made, in respect of an injury or death-- · incurred by a worker employed by the employer while the employer was a self-insurer; and · which entitles that worker, the worker's dependants or the worker's family members to compensation or any other payments under the Act or at common law. · New section 153(1) introduces a power for the Authority to issue new guidelines at its discretion, to provide guidance to self-insurers about matters which self-insurers should have regard to in relation to the Act, or any regulations or Ministerial Orders made under the Act. · New section 153(2) provides that the guidelines may indicate the way in which a provision of Part V of the Act would, in the Authority's opinion, apply to a class of employers or to a set of circumstances; or how a discretion of the Authority under a provision of Part V would be exercised. 99

 


 

· New section 153(3) provides that for the purposes of the new section 153 the Authority exercises a discretion if the Authority forms an opinion, attains a state of mind, makes a determination, exercises a power or refuses or fails to do any of those things. · New section 153(4) requires the Authority to do certain things if it proposes to make new guidelines, including-- · to ensure notice of the proposed guidelines is published (which may include on the Authority's website or other notice directed to self-insurers and prospective self-insurers); and · to include in the notice a specified period during which written submissions or comments on the proposed guidelines may be made to the Authority; and · to provide a copy of the proposed guidelines to any person who requests it during that period. · New section 153(5) enables the Authority to make the guidelines (with or without any modifications) by publishing notice of the guidelines (which may include publishing on the Authority's website or in a notice directed to self-insurers and prospective self-insurers), following the Authority's consideration of any written submissions and comments received within the specified period. · New section 153(6) provides that guidelines made by the Authority under new section 153 do not give rise to any liability of or other claim against the Authority, or any right, expectation, duty or obligation that would not otherwise be conferred or imposed on a person, or any defence that would not otherwise be available to that person. · New section 154 renumbers and restates current section 153 of the Act. · New section 155 restates current section 155 of the Act. 100

 


 

Clause 127 inserts new Schedule 4 and Schedule 5 in the Act. · New Schedule 4, clause 1 introduces a pre-application eligibility fee ($780, plus GST, subject to indexation) payable by an employer that undergoes the process to assess whether it is eligible to apply to become a self- insurer. · New Schedule 4, clause 2 introduces a formula for indexing on an annual basis the amount of the pre- application eligibility fee. · New Schedule 5 is modelled on regulation 20 of the Accident Compensation Regulations 2001. · New Schedule 5, clause 1 sets out the formula for calculating the application fee payable by eligible employers that apply for approval as a self-insurer. · New Schedule 5, clause 2, subclause (1) sets out the formula for determining employers' "assessment remuneration" for the purpose of the formula in clause 1. · New Schedule 5, clause 2, subclause (2) provides that if an employer has not paid any remuneration in the preceding year, then the employer's assessment remuneration is to be regarded as the amount estimated by the Authority under section 141A as being the employer's rateable remuneration for the forthcoming year. · New Schedule 5, clause 2, subclause (3) defines the terms forthcoming year, preceding year and rateable remuneration. · New Schedule 5, clause 3, subclause (1) sets out the maximum upper limit for the application fee ($47 570, subject to indexation). · New Schedule 5, clause 3, subclause (2) sets out the formula for indexing on an annual basis the amount of the application fee. · New Schedule 5, clause 3, subclause (3) sets out the effect of any reduction that results from the indexation formula in subclause (2). 101

 


 

· New Schedule 5, clause 3, subclause (4) provides that any amount resulting from the indexation or variation of the fee limit is to be calculated to the nearest whole $10. PART 13--RETURN TO WORK Clause 128 repeals section 93D of the Act, regarding suitable employment, because it is restated in new provisions. Clause 129 inserts a new Part VIIB of the Act which replaces Part VI of the current Act. · New section 189 sets out the purpose of Part VIIB, which is intended to guide the interpretation of the obligations of employers and workers. · New section 191 specifies that the obligations of employers and workers are specified in Divisions 2 and 3 respectively. · New section 191A provides that nothing in Part VIIB limits or otherwise affects the operation of other provisions unless specified. · New section 192 defines terms used in Part VIIB. · New section 193 restates current sections 155A(4) and 157 of the Act. · Division 2 sets out the return to work obligations of employers. · New section 194 requires the employer to provide suitable or pre-injury employment to the injured worker to the extent that it is reasonable to do so for the employment obligation period. The maximum penalties for non-compliance are 180 penalty units (for a natural person) and 900 penalty units (for a body corporate). This section replaces current sections 155A(1) to (3) and 155B. This is a central return to work obligation and employers are expected to be able to provide pre-injury or suitable employment in most circumstances. The flexibility provided by new section 194 will accommodate disparate work situations and circumstances, including those of contractors and deemed workers, while 102

 


 

ensuring job security for the injured worker. It would not be reasonable to comply with this obligation to the extent that it would cause the employer unjustifiable hardship. The period of time for which the employer is required to provide pre-injury or suitable employment is unchanged from the period currently provided in section 155A(1) to (3) but commences earlier. It will commence from the date that the employer receives from the worker a medical certificate in accordance with section 105 or a claim for compensation in the form of weekly payments, or is notified by the Authority that the worker has made a claim or has provided a section 105 medical certificate. · New section 195 requires the employer to plan the worker's return to work, to the extent that it is reasonable to do so, from the date on which the employer knows or ought reasonably to have known of the worker's incapacity for work. This date is deemed by new section 192(3) to be the date that the employer commencement period commences. The current obligation to prepare a return to work plan is replaced with an obligation to engage in an ongoing process of planning. The test of what is 'reasonable' applies throughout the process and may change over time. For example, the longer a worker has been absent from the workplace, the greater the effort that may be required to plan his or her return, consistent with his or her capacity for work. The maximum penalties for non-compliance are 120 penalty units (for a natural person) and 600 penalty units (for a body corporate). · New section 196 requires the employer to consult with the worker and the worker's treating health practitioner and occupational rehabilitation service provider, if one is used. Consultation with the worker's treating health practitioner is subject to the worker's consent. The worker will be required by new section 200 to make reasonable efforts to actively participate 103

 


 

and cooperate in return to work planning. It is intended that these reasonable efforts include not unreasonably withholding consent under new section 196. Consultation with the worker must involve the employer consulting directly with the worker, but the worker may be assisted by a representative. The maximum penalties for non-compliance by an employer with new section 196 are 120 penalty units (for a natural person) and 600 penalty units (for a body corporate). · New section 197 requires employers to nominate a return to work coordinator to assist them to meet their return to work obligations. It replaces current sections 156 and 161 and raises the amount of rateable remuneration above which an employer must maintain the appointment of a return to work coordinator at all times from $1 000 000 to $2 000 000. All return to work coordinators must have an appropriate level of seniority and be competent to assist their employer meet their employer's obligations under Part VIIB. It is intended that the level of seniority and breadth of skills and knowledge required will depend upon the circumstances of the employer. The return to work coordinator of an employer whose workers have made compensation claims in the past, or of a large employer who has an ongoing responsibility to maintain the appointment of a coordinator, will be expected to have broader knowledge, skills and experience than a return to work coordinator employed by a small employer with no history of past compensation claims. The maximum penalties for non-compliance are 120 penalty units (for a natural person) and 600 penalty units (for a body corporate). · New section 198 requires employers to make return to work information available to workers, and to consult with them about how it is made available. It is intended that the information will assist employers and workers to understand their 104

 


 

return to work roles and responsibilities and foster a workplace culture that supports returning injured workers to work. The maximum penalties for non-compliance are 120 penalty units (for a natural person) and 600 penalty units (for a body corporate). · New section 199 is a new obligation to assist labour hire workers who are injured while working at the premises of a host. It requires the host to cooperate with the labour hire employer in actions taken by the labour hire employer to comply with the obligations at new sections 194, 195 and 196. It is intended that the extent to which it is reasonable for the host to cooperate will depend on the circumstances, including the length of time that the worker had been working at the workplace of the host at the time of the injury, the nature of the injury, the size of the host and the type of work performed. The maximum penalties for non-compliance are 120 penalty units (for a natural person) and 600 penalty units (for a body corporate). · Division 3 sets out the return to work obligations of workers. Existing obligations in current sections 93A(3), 93A(4), 93B(2), 93B(4), 93CA(3), 93CA(4), 93CB(3), 93CB (4), 93CC(3) and 93CC(5) of the Act, which will be repealed by clause 31, are restated and reframed in the context of new section 189. · New section 200 restates the current obligation to participate in a return to work plan and requires the worker to make reasonable efforts to actively participate and cooperate with the employer, Authority or self-insurer in return to work planning. · New section 201 restates the current obligation to participate in an occupational rehabilitation service and requires the worker to actively use the service and cooperate with the provider of that service. 105

 


 

· New section 202 restates the current obligation to participate in assessments of the worker's incapacity, rehabilitation progress and future employment prospects when requested to do so by the employer or self-insurer or the Authority. · New section 203(1) restates the current obligation to make every reasonable effort to return to work in suitable employment at the worker's place of employment or another place of employment. Subsection (2) restates current section 93CD(1) and subsection (3) restates the obligation currently set out at section 93CD(2). Section 93CD will be repealed by clause 128. · New section 204 replaces the current obligation at section 162 of the Act. Whereas section 162 currently requires the worker to attend at an interview, the new provision requires the worker to participate in one, so that attendance in person is not necessarily required. The current penalty for failing to comply will be repealed by clause 130(1)(c). · New section 205 establishes procedures for encouraging workers to meet their return to work obligations through the administration of weekly compensation payments. It replaces current provisions which provide for the entitlement to weekly payments to cease and determine if the worker does not comply with return to work requirements (sections 93A(4), 93B(4), 93CA(4), 93CB (4) and 93CC(5)). It also replaces section 242(8) which imposes a penalty of 20 penalty units for failing to comply with a requirement under section 162 to attend an interview. A worker who does not meet an obligation in Division 3 will receive a notice that the worker's weekly payments will be suspended unless the worker complies. The period before which the worker's payments may be suspended is 14-60 days. A notice period of 14 days will normally be sufficient but a broad range is provided to allow for flexibility in view of the nature of the worker's injury and other circumstances of the particular case. The upper limit is intended to apply only if a dispute is being agitated about the worker's 106

 


 

capacity for work. If the worker fails to comply by the expiry of the notice period, the weekly payments will be suspended for 28 days but will recommence if the worker complies in the meantime. If the worker fails to comply by the end of the suspension period, the Authority or self-insurer may terminate the weekly payments. If, within the previous 12 months, the worker has been issued 2 notices without a suspension of payments, or has had the payments suspended, the Authority or self-insurer may cease and determine the worker's entitlement to compensation in the form or weekly payments in respect of that injury under the Act. The worker will retain the right to refer any dispute about decisions made under this section to conciliation. · New section 206 restates the worker's obligation under current sections 123(2) and 123(3) of the Act to notify the Authority and, where relevant, the employer that the worker has returned to any work. Sections 123(2) and (3) will be repealed by clause 130(4). The current penalty for failing to comply with this requirement, imposed by section 242(5), will be repealed by clause 130(3)(d). · New section 207 introduces a requirement for the employer and worker to attempt to resolve issues about the worker's return to work in accordance with the relevant agreed procedure or the procedure specified in a Ministerial direction. · New section 208 introduces a requirement that, as soon as practicable after accepting the worker's claim for compensation in the form of weekly payments, the Authority or self-insurer must inform the worker of the employer's obligation under section 193 to provide suitable or pre-injury employment for the duration of the employment obligation period. Once the Authority or self insurer estimates that at least 30 weeks of the employment obligation period has expired, it must so inform the worker before it estimates 36 weeks have expired. The information to be provided to the worker and any circumstances where it may not need to be given may be specified in a ministerial direction. 107

 


 

· New section 209 retains the Authority's existing power under section 163(2)(c) to direct an employer to use the services of an approved provider of occupational rehabilitation services. The maximum penalty for non- compliance is 120 penalty units (for a natural person) and 600 penalty units (for a body corporate). · New section 210 establishes a power for the Minister to approve, vary or revoke a compliance code and procedures for doing so. · New section 211 provides that a failure to comply with a compliance code does not give rise to any civil or criminal liability. · New section 213 provides that an employer who complies with a compliance code concerning a return to work obligation will be taken to have complied with the Act. · New section 213A provides for public review and comment on a proposed code unless the Minister considers it in the public interest to make the code as soon as practicable. · New sections 214 and 214A set out procedures for the Minister to make, amend or revoke directions concerning dispute resolution and the notification of workers about the employer obligation period. These directions are subject to disallowance by the Parliament. · Division 6 sets out the powers of return to work inspectors and largely mirrors equivalent provisions for inspectors appointed under the Occupational Health and Safety Act 2004-- · New section 214B provides that a reference to an employer includes a reference to a host. Return to work inspectors are to be empowered to enforce a host's obligation under new section 199 to cooperate with a labour hire employer. 108

 


 

· New section 215 provides for the appointment of inspectors. Subsection (1) provides that the Authority may, by instrument in writing, appoint an officer or employee of the Authority to be an inspector for the purposes of the new return to work part of the Act. Subsection (2) provides that the Authority must give each inspector a certificate of appointment signed by the chief executive of the Authority. Subsection (3) provides that a certificate of appointment is conclusive proof of the valid appointment of the inspector. · New section 216 provides for the issue of identity cards to inspectors. Subsection (1) requires the Authority to issue an identity card to each inspector containing a photograph of the inspector and his or her signature. Subsection (2) requires an inspector to produce his or her identity card for inspection if asked to do so when performing a function or exercising a power under the Act. Subsection (3) provides that 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 practicable. · New section 217 provides that an inspector is subject to the Authority's directions in the performance of his or her functions or the exercise of his or her powers under the Act. · New section 218 sets out the entry powers of inspectors. Sub-section (1) confers on an inspector the power to enter a place that the inspector reasonably believes is a workplace at any time during the work hours of the workplace. Subsection (2) specifies that the powers of an inspector in relation to entering a workplace may not be exercised in respect of any part of the workplace that is only used for residential purposes, except with the consent of the occupier. 109

 


 

· New section 219 requires a return to work inspector, immediately on entering a workplace using the entry powers, to take reasonable steps to notify the occupier or apparent occupier of his or her entry and produce his or her identity card. · New section 220 requires an inspector who enters a workplace using the entry powers to give a report concerning the entry to the occupier or apparent occupier. The report must be provided when the inspector leaves the workplace, or as soon as practicable afterwards. Subsection (2) requires that, if the purpose of the entry to the workplace relates to the worker's return to work, the inspector to give a copy of the report to the worker. Subsection (3) specifies that the report must be in writing and include certain information, including the time of entry and departure, the purpose of the entry, a description of things done while at the workplace, a summary of the inspector's observations while at the workplace, the procedure for contacting the Authority and the inspector for further details of the entry, and the procedure for seeking review of any decision made by the inspector during the entry. Subsection (4) provides that if the inspector takes photographs or makes sketches or recordings, the report must also include a statement that the photographs have been taken or sketches or recordings have been made and they are or will be available for inspection at a specified place. · New section 221 gives an inspector who enters a workplace various powers, including-- · to inspect, examine and make enquiries at the workplace; · to inspect and examine any thing (including a document) at the workplace; · to bring any equipment or materials to the workplace that may be required; 110

 


 

· to seize any thing (including a document) at the workplace place that may afford evidence of the commission of an offence against the Act; · to take photographs or measurements or make sketches or recordings; · to exercise any other power conferred on the inspector by the Act; · to do any other thing that is reasonably necessary for the purpose of the inspector performing his or her functions or exercising his or her powers under the Act. · New section 222 sets out the powers of inspectors in relation to the production of information. Subsection (1) gives powers to an inspector who enters a workplace, including-- · to require a person to produce a document, or part of a document, that is in the person's possession or control; · to examine the document or part; · to require a person to answer any questions put by the inspector. Subsection (2) makes it an offence for a person, without reasonable excuse, to refuse or fail to comply with a requirement under subclause (1). The offence carries a maximum penalty of 60 penalty units (for a natural person) and 300 penalty units (for a body corporate). Subsection (3) provides that before requiring a person to produce a document or part of a document or to answer questions under subsection (1), an inspector must produce his or her identity card for inspection by the person and warn the person that a refusal or failure to comply with the requirement, without reasonable excuse, is an offence. The inspector must also inform the person that he or she may refuse or 111

 


 

fail to answer any question if answering the question would tend to incriminate him or her. Subsection (4) provides that a person is not liable to be prosecuted for an offence against subsection (2) if the inspector failed to comply with subsection (3). · New section 223 requires the Authority to return any thing seized to the owner as soon as possible after an inspector has seized it unless-- · 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 the Act; or · the Authority is otherwise authorised (by a law or court order) to retain, destroy or dispose of the thing. · New section 224 gives an inspector the power to issue a Return to Work improvement notice to an employer person if he or she reasonably believes that the employer is contravening a provision of the Act or has contravened such a provision in circumstances that make it likely that the contravention will continue or be repeated. An improvement notice requires a person to remedy the contravention or likely contravention. Subsection (2) specifies that a Return to Work improvement notice must-- · state the basis for the inspector's belief on which the notice is based; · specify the provision of Part VIIB that the inspector considers has been or is likely to be contravened; · specify a date by which the employer must remedy the contravention; · set out the penalty for contravening the notice; 112

 


 

· state how the employer may seek review of the issue of the notice; and · include a statement of the effect of section 229 (proceedings for offences are not affected by notices). In addition, subsection (3) provides that a Return to Work improvement notice may include directions concerning the measures to be taken to remedy the contravention or matters or activities causing the contravention and may, in particular, include-- · a direction that if the person has not remedied the contravention, likely contravention, matters or activities by the date and time (if any) specified in the notice, an activity to which the notice relates is to cease until an inspector has certified in writing that the contravention, likely contravention, matters or activities have been remedied; and · interim directions or conditions on 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. An employer who fails to comply with a Return to Work improvement notice is liable to a fine not exceeding 120 penalty units (for a natural person) and 600 penalty units (for a body corporate). · New section 225 provides that a direction or condition included in a Return to Work improvement notice may refer to a compliance code or Ministerial direction and offer the employer to whom the notice is issued a choice of ways in which to remedy the contravention or likely contravention. · New section 226 empowers the Authority to vary of cancel a Return to Work improvement notice. 113

 


 

· New section 227 provides that a Return to Work improvement notice or prohibition notice may be issued to an employer by-- · delivering it personally, or by sending it by post or facsimile to the employers usual or last known place of business; or · leaving it for the employer at the employer's usual or last known place of business with a person who is apparently has authority to receive correspondence or communications with the employer. Subsection (2) requires the employer to display a copy of the notice in a prominent place if or near the workplace if it relates to the employer's obligation under section 197 or 198. An employer who fails to comply with subsection (2) is guilty of an offence and liable to a fine not exceeding 5 penalty units (for a natural person) and 25 penalty units (for a body corporate). If the Return to Work improvement notice relates to the return to work of a worker subsection (3) requires the inspector to provide a copy to the worker. Subsection (4) empowers the inspector to give the relevant host a copy of a Return to Work improvement notice issued to a labour hire employer about a worker and give the relevant labour hire employer a copy of a Return to Work improvement notice issued to a host. Subsection (5) empowers the inspector to give a copy of the Return to Work improvement notice to the relevant authorised agent. · New section 228 deals with formal irregularities or defects in a Return to Work improvement notices. It provides that a Return to Work improvement notice is not invalid merely because of-- 114

 


 

· a formal defect or irregularity unless the defect or irregularity causes or is likely to cause substantial injustice; or · a failure to use the correct name of the employer to whom the notice is issued if the notice sufficiently identifies the person and is issued appropriately. · New section 229 provides that the issue, variation or cancellation of a Return to Work improvement notice does not affect proceedings for an offence against the Act regarding the matters raised in the notice. · New section 230 provides that a person must not, without reasonable excuse, refuse or fail to provide such assistance as an inspector may reasonably require for the performance of his or her functions or exercise of his or her powers under the Act. A person who contravenes this provision is liable to a fine not exceeding 60 penalty units (for a natural person) and 300 penalty units (for a body corporate). · New section 231 provides that for the purpose of exercising a power under the Bill or regulations, an inspector may seek the assistance of any person. Subsection (2) provides that 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 the occupier or apparent occupier. A person who contravenes this provision is guilty of an offence and liable to a fine of 60 penalty units (for a natural person) and 300 penalty units (for a body corporate). Subsection (3) provides that if an inspector uses the assistance of an interpreter, any inquiry or request made by the interpreter on an inspector's behalf is taken to have been made by the inspector and any answer given to the interpreter is taken to have been given to the inspector. 115

 


 

· New section 232 authorises an inspector to take affidavits and statutory declarations for any purpose relating to or incidental to the performance of his or her functions or exercise of his or her powers under the Act. · New section 233 allows an inspector to make copies of, or take extracts from, a document or part of a document given to the inspector in accordance with a requirement under the Act. · New section 234 makes it an offence for a person to intentionally-- · hinder or obstruct an inspector in the performance of his or her functions or exercise of his or her powers under the Act, or induce or attempt to induce any other person to do so; · conceal from an inspector the location or existence of any other person or thing; or · prevent or attempt to prevent any other person from assisting an inspector. The offence carries a maximum penalty of 60 penalty units (for a natural person) and 300 penalty units (for a body corporate). Subsection (2) makes it an offence for a person to assault, directly or indirectly intimidate or threaten, or attempt to intimidate or threaten an inspector or a person assisting an inspector. The offence carries a maximum penalty of 240 penalty units, or 2 years imprisonment, or both (for a natural person) or a fine not exceeding 1200 penalty units (for a body corporate). · New section 235 makes it an offence for a person who is not an inspector to in any way hold himself or herself out to be an inspector. The offence carries a maximum penalty of 60 penalty units. 116

 


 

· New section 236 sets out decisions made under Division 6 that are reviewable decisions and who is eligible to apply for review of them (eligible persons). Subclause (2) provides, for the avoidance of doubt, that sections 4 and 5 of the Victorian Civil and Administrative Tribunal Act 1998 apply for the purposes of Division 6. · New section 236A provides that an eligible person may apply to the Authority for review of a decision (other than a decision made by the Authority under section 226) within 14 days after the day on which the decision first came to the eligible person's notice, or such longer period as the Authority allows. Subsection (2) requires the application to be in the form approved in writing by the Authority. Subsection (3) provides that if an application is made to the Authority in accordance with this section, the Authority must make a decision to affirm or vary the reviewable decision or to set aside the reviewable decision and substitute another decision that the Authority considers appropriate. Subsection (4) requires the Authority to give written notice to the applicant setting out its decision and the reasons for the decision and the findings on material questions of fact that led to the decision. The Authority must provide such written notice within 21 days after the application is made, or if the reviewable decision was made under clause 224(3)(a) (Return to Work improvement notices), within 7 days after the application is made. Subsection (5) provides that if the Authority has not notified an applicant of a decision in accordance with subsection (4), it is taken to have made a decision to affirm the reviewable decision. 117

 


 

Subsection (6) provides that an application for review does not affect the operation of the reviewable decision or prevent the taking of any action to implement it, unless the Authority (on its own initiative or on an application by an eligible person) stays the operation of the decision pending the determination of the review. Subsections (7) and (8) require the Authority to make a decision on a stay application within 24 hours of the application; otherwise, the Authority is taken to have made a decision to grant a stay. Subsection (9) provides that the Authority may attach any conditions to a stay of the operation of a reviewable decision that it considers appropriate. · New section 236B provides that a person who is an eligible person in relation to a reviewable decision may apply to the Victorian Civil and Administrative Tribunal for review of-- · a reviewable decision made by the Authority under section 226; or · a decision made, or taken to have been made by the Authority under section 236A in respect of a reviewable decision (including a decision concerning a stay of the operation of the reviewable decision). Subsection (2) requires an application to be made by the later of either-- · 14 days after the day on which the decision first came to the applicant's notice; or · if the Authority is required by the Victorian Civil and Administrative Tribunal Act 1998 to give a statement of reasons, 14 days after the day on which the applicant is given the statement. 118

 


 

Clause 130 makes consequential amendments to the Act relating to the new Part VIIB. Clause 131 repeals Part VI of the Act. Clause 132 inserts a new section 20E in the Act which confers on the Authority the power to give advice to a person who has an obligation under the Act about how to comply with that obligation. New section 20E(2) provides that the giving of such advice does not give rise to-- · any right, expectation, duty or obligation that would not otherwise be conferred or imposed on the person given the advice; or · any defence that would not otherwise be available to that person. New section 20E(3) provides that the Authority's power under this section to give advice may also be exercised by an inspector, or another person authorised by the Authority to exercise the power. Clause 133 inserts a new section 248D in the Act which provides that a natural person may refuse or fail to give information or do any other thing that the person is required to do by or under the Act if giving the information or doing the other thing would tend to incriminate the person. However, subsection (2) provides that the protection does not apply to the production of a document that the person is required to produce under the Act. Clause 133 also inserts a new section 248E in the Act which expressly preserves legal professional privilege and client legal privilege. Clause 134 amends section 252 of the Act to provide that proceedings for a Part VIIB offence may, with the authority of the Director of Public Prosecutions, be instituted at any time after the offence is committed. Clause 135 inserts a new section 252AA in the Act which establishes a procedure for requesting the Authority to bring a prosecution. A person may request in writing that the Authority bring a prosecution if the person considers that the occurrence of an act, matter or thing constitutes an offence against Part VIIB and no prosecution has been brought within 6 months of that occurrence. 119

 


 

New section 252AA(2) requires the Authority, within 3 months of receiving a request, to investigate the matter and advise the person in writing whether a prosecution has been or will be brought or give reasons why a prosecution will not be brought. New section 252AA(3) provides that if the Authority advises the person that a prosecution will not be brought, the Authority must refer the matter to the Director of Public Prosecutions if the person requests the Authority to do so. New section 252AA(4) requires the Director of Public Prosecutions to consider the matter and advise the Authority whether or not the Director considers that a prosecution should be brought. The Authority must send a copy of the advice to the person who made the request. If the Authority declines to follow the advice of the Director of Public Prosecutions, the Authority must give the person written reasons for its decision. New section 252AA(6) requires the Authority to publish in its annual report and on its website a statement setting out the number of-- · requests received to bring a prosecution; · cases in which the Authority has advised that a prosecution had been or will be brought, or will not be brought; and · cases in which the Director of Public Prosecutions has advised that a prosecution should be brought or should not be brought. Clause 136 inserts a new section 252N in the Act which states that it is the intention of new section 252AA as inserted by clause 135 to alter or vary section 85 of the Constitution Act 1985. Clause 137 makes consequential amendments to the Emergency Management Act 1986. Clause 138 makes consequential amendments to the Amendment of Juries Act 2000. Clause 139 makes consequential amendments to the Amendment of Long Service Leave Act 1992. Clause 140 makes a consequential amendment to the Transport Accident Act 1986. 120

 


 

Clause 141 makes a consequential amendment to the Amendment of Victoria State Emergency Service Act 2005. PART 14--MISCELLANEOUS Division 1--Service Providers Clause 142 amends the definition of professional service in section 248A(3)(c) of the Act to include a service, provision of goods or any other matter referred to in section 99 in relation to the costs of or contribution for which a liability arises, or may arise, under that section. Clause 143 inserts a new section 249AA in the Act. New section 249AA(1) provides that where the Authority reasonably suspects that a professional service provider has committed a relevant offence (defined under subsection (7)), the Authority may suspend the payment of costs for a "professional service" (defined under subsection (7)) by providing the service provider with a suspension notice. Before the Authority gives the suspension notice, it must provide the service provider the opportunity to make submissions under section 249BB as inserted by this clause. New section 249AA(2) requires the Authority to provide a copy of the suspension notice to each self-insurer. New section 249AA(3) provides that the suspension of payment of costs under subsection (1) has the effect that the costs of a professional service provided by the service provider during the period of suspension are not payable by the Authority or a self- insurer. It also provides that the period of suspension commences on the date the suspension notice under subsection (1) is given and ends, on the earlier of-- · 6 months after the suspension notice is given; or · the date the Authority determines not to prosecute the service provider for the suspected offence; or · if the service provider is charged with an offence within 6 months after the suspension notice is given, the date the prosecution is discontinued, or the date of the court decision. 121

 


 

New section 249AA(4) provides that if the service provider is convicted or found guilty of a relevant offence by the Court, the Court has the power to make orders (on its own motion or on application by the Authority)-- · that the cost of any professional service or any specified professional services under this Act provided by the service provider during the suspension period are not payable; and/or · that the service provider is a person for the costs of whose professional services the Authority is not liable to pay as compensation under this Act during a specified period; and/or · if the service provider was approved by the Authority to provide a professional service under this Act, that the Authority revoke its approval and/or specify a period within which the service provider is precluded from re- applying for approval. New section 249AA(5) provides that if the Authority gives a notice under this section to a person whose conduct is regulated by a professional body, the Authority may give notice in writing to the professional body of the suspension and the grounds on which the payment of costs for services under this Act provided by the person is suspended. New section 249AA(6) provides that 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 may give notice in writing to Medicare Australia of the suspension and the grounds on which the payment of costs for services under this Act provided by the person is suspended. New section 249AA(7) defines professional service to mean a professional service as defined in the revised section 248A(3) as inserted by this Bill, that is provided to or in respect of a worker in respect of an injury sustained by the worker for which a claim for compensation has been, or may be, given, served or lodged under this Act. It also defines relevant offence to mean an offence against this Act and an offence against the Crimes Act 1958 which occurs in connection with a claim for compensation under this Act. Clause 143 also inserts a new section 249AB in the Act. 122

 


 

New section 249AB(1) provides that where a service provider who provides or may provide a service under this Act, has been convicted or found guilty of a disqualifying offence (defined under subsection 3), the Authority may by written notice determine that-- · the costs of any professional services provided by the service provider are not payable by the Authority or a self-insurer for a specified period; and/or · the service provider is a person for the costs of whose professional services the Authority is not liable during a specified period; and/or · if the service provider was approved by the Authority to provide a professional service, that its approval is revoked. Before the Authority gives the notice of determination under subsection (1), it must provide the service provider the opportunity to make submissions under section 249BB introduced by this Bill. New section 249AB(2) provides that a copy of the notice of determination under subsection (1) must be provided to each self-insurer, and may be provided by the Authority to-- · any relevant regulating professional body; and · Medicare Australia if the service provider is a practitioner within the meaning of Part VAA of the Health Insurance Act 1973 of the Commonwealth. New section 249AB(3) defines a disqualifying offence to mean an offence which is punishable by a term of imprisonment of 2 years or more or a maximum fine equivalent to a Level 7 offence and above as specified in Table 2 section 109 of the Sentencing Act 1991, or punishable by a term of imprisonment of 2 years or more under a law of another State, a territory or the Commonwealth. It also defines professional service to have the same meaning as under section 249AA(7) inserted by this Bill. Clause 143 repeals and substitutes section 249B of the Act. New section 249B includes a number of changes to strengthen the Authority's powers to regulate the conduct of service providers where the Authority is concerned about the adequacy, appropriateness or frequency of the provision of the professional services provided. This clause applies to by 123

 


 

service providers who are regulated by professional bodies as well as service providers who are not regulated by a professional body. New section 249B defines professional service to have the same meaning as under section 249AA(7) inserted by this Bill. It also defines the term relevant body to have the same meaning under section 249BA(4) except that is does not include a court. Service providers regulated by a professional body New section 249B provides that where there is a relevant body responsible for regulating the service provider's trade or profession, the Authority has the power to refer the service provider's conduct together with any relevant matters pertaining to that conduct, to the relevant body for investigation or review. The Authority's decision to refer is not subject to the "show cause" process under section 249BB introduced by this Bill, nor is the Authority's decision reviewable under 249C(1) introduced by this Bill. New section 249B provides the Authority the power to suspend payments to the service provider for professional services provided pending findings made by the relevant body, by providing a written suspension notice to the service provider. The Authority's powers to act on the findings of the relevant body are set out in section 249BA introduced by this Bill. Before the Authority gives the suspension notice, it must provide the service provider the opportunity to make submissions under section 249BB introduced by this Bill. The Authority's power to suspend payments to the service provider applies to professional services rendered before or after the suspension notice is given. The suspension of payments applies, until the earlier of-- · 6 months after the suspension notice is given, or, if the Authority forms the view that the relevant body's investigation or review will not be completed within that time, an extension of one further period of 6 months; or · the date the relevant body completes its investigation and makes findings. The Authority must provide a copy of the notices to service providers under subsections (2) to each self-insurer. 124

 


 

Service providers not regulated by a professional body The revised section 249B provides that where there is not a professional body responsible for regulating the service provider's trade or profession, the Authority may by written notice to the service provider-- · warn the service provider-- · that the Authority is concerned about the service provider's conduct; and · that if the conduct continues the Authority may suspend payment of the service provider's costs pending review of the service provider's conduct by the Authority; and/or · review the service provider's conduct, and where the Authority determines appropriate, also suspend payment the costs of the professional services by the service provider for a period of six months while the Authority reviews the service provider's conduct. The suspension will apply until the earlier of the completion of the Authority's review or the expiry of six months from the date the notice of suspension is given. While the decision to review the service provider's conduct is not subject to section 249BB, prior to suspending, the Authority is required to follow the process set out in section 249BB introduced by this Bill. If following the Authority's review, the Authority considers the service provider has acted unreasonably or unprofessionally, the Authority may by written notice to the service provider-- · determine that the costs of the suspended payments are not payable by the Authority or a self-insurer; and/or · if the service provider was approved by the Authority to provide a professional service, that its approval is suspended for a period specified in the notice, or the approval is revoked. A copy of the notices it provided to the service providers under subsections (2)(b), (3)(b), (5) and (6) must be provided by the Authority to each self-insurer, and may be provided by the Authority to Medicare Australia if the service provider is a practitioner within the meaning of Part VAA of the Health Insurance Act 1973 of the Commonwealth. 125

 


 

The Authority is exempted from any civil or criminal liability for referring the conduct of a service provider under this section to a professional body, and providing a copy of the notices under subsections (2)(b), (3)(b), (5) and (6) to Medicare Australia. The requirements of section 21A of the Evidence Act 1958 apply to a review conducted by the Authority. The revised section 249B makes clear that section 239 of this Act applies to any liability or entitlement under this clause. In this section, professional service to has the same meaning as under section 249AA(7) inserted by this Bill. Clause 143 inserts a new section 249BA in the Act. New section 249BA provides that where the Authority is concerned about the adequacy, appropriateness or frequency of any professional service provided by a service provider, the Authority has the power to act on findings of a relevant body (defined under subsection 4) that-- · the service provider has, by act or omission, engaged in unprofessional conduct or professional misconduct; · the service provider's ability to practice is adversely affected as a result of the service providers' physical or mental health or incapacity; · the service provider is not of good character or otherwise not a fit and proper person. Where a professional body has made such findings, the Authority has the power to determine that the service provider is a person for the provision of whose professional services the Authority is not liable to pay costs for a specified period, where the services are rendered after the Authority made the determination. If the Authority takes such action based on the findings of the professional body, the Authority must notify the service provider in writing of its determination. The Authority or a self-insurer is not liable to pay the costs of professional services after the service provider is notified of the determination. Before the Authority makes the determination, it must provide the service provider the opportunity to make submissions under section 249BB introduced by this Bill. The Authority must provide a copy of its determination to each self-insurer. 126

 


 

The new section 249BA(4) defines relevant body as-- · a responsible board within the meaning of the Health Professions Registration Act 2005; · the Authority, Committee, Director or Panel within the meaning of section 81 of the Health Insurance Act 1973 of the Commonwealth; · a body responsible for regulating conduct of persons in the trade or profession of a person providing professional services; · a court or tribunal. Professional service is defined to have the same meaning as under section 249AA(7) inserted by this Bill. Clause 143 inserts a new section 249BB in the Act. New section 249BB provides that the Authority, before making a determination under section 249AA, 249AB, 249B or 249BA, must provide written notice to the service provider advising the service provider of the determination it proposes to make, and inviting the service provider to make a written submission to the Authority within 28 days as to why the determination to suspend should not be made. The Authority must consider the service provider's submission before making the determination. This does not apply to determinations under section 249B(2)(a), 249B(3)(b)(i) or 249B(6). Clause 143 inserts a new section 249BC in the Act. New section 249BC provides the Authority with the discretion to publish the outcome of determinations of the Authority or orders of the Court under sections 249AA, 249AB, 249B or 249BA together with the name and business address of a service provider the subject of the determinations and orders. Clause 144 makes consequential amendments to section 99 of the Act. The immunity under section 99(10) is extended to determinations or orders under sections 249AA, 249AB, 249B and 249BA including where the Authority is not liable to pay for the costs of compensation under this Act. However, this immunity does not apply where a worker, legal representative of a worker, or a dependant of a worker has been notified in writing by the Authority or a self-insurer that the service provider is the subject of any order or determination under sections 249AA, 249AB, 249B or 249BA. 127

 


 

The operation of section 249C(1) is extended to the Authority's determinations under sections 249AA, 249AB, 249B and 249BA, except for the Authority's decision to refer under section 249B(2)(a). Division 2--Other Amendments Clause 145 inserts a new definition in section 5(1) of the Act that provides that WorkSafe Victoria means the Victorian WorkCover Authority. Clause 146 inserts a new section 5(2A) in the Act. This enables the name "WorkSafe Victoria" to be used interchangeably with "the Authority" in all documents issued by the Authority, including forms which are governed by legislation, such as WorkCover claim forms and materials relating to the interpretation of legislation. Clause 147 inserts a new section 18A in the Act which enables the name "WorkSafe Victoria" to be used as the trading name of the Authority in the carrying on of the Authority's business. Clause 148 amends section 20 of the Act to clarify the Authority's functions in relation to employer programs and incentives to reduce workplace accidents. Introduces a new function of the Authority, being to collaborate and provide funds for the purpose of-- · developing national policies relating to OHS and workers' compensation; · enhancing co-operation and collaboration between Australian jurisdictions in relation to the health and safety of Australian workers; · improving occupational health and safety outcomes and workers' compensation arrangements in Australia; or · harmonising workers' compensation arrangements across the Commonwealth, States and Territories. The new provision also ensures that the new function does not inadvertently create the possibility of an employer, worker or third party taking action against the Authority, or joining the Authority as a party to an action, on the basis that the Authority failed in its obligation to assist the employer in preventing workplace injuries, or improving its occupational health safety or return to work performance. 128

 


 

Clause 149 is an amendment consequential to clause 154. Clause 150 replaces the offence provision in section 23 of the Act relating to an authorised agent's failure to comply with terms and conditions of appointment or directions, with a power for the Authority to terminate the appointment of an authorised agent on these grounds. It also confirms that the Authority retains the right to take an action against a person who is or has been an authorised agent and who has failed to comply with terms and conditions of appointment or directions. Clause 151 repeals section 52(5) of the Act as a consequential amendment to clause 154. Clause 152 amends section 100 of the Act to confirm the current operation of the indexation provisions, by clarifying that the amount that is to be varied in the formula is the amount as previously indexed in accordance with section 100. Clause 153 amends section 125B of the Act. Subclause (1) confirms that section 125B applies to both employers and self-insurers. Subclause (2) is a consequential amendment to the repeal of Division 6 in Clause 154. Clause 154 repeals Division 6 of Part IV of the Act which is a redundant provision. Clause 155 is a statute law revision amendment. PART 15--REVISION OF PENALTIES Clause 156 updates section 56(11) of the Act to increase the penalty to a maximum of 180 penalty units or 6 months imprisonment, or both, for a natural person; and a maximum of 900 penalty units for a body corporate. Clause 157 updates section 58B of the Act to increase the penalty to a maximum of 60 penalty units for a natural person; and a maximum of 300 penalty units for a body corporate. Clause 158 introduces a specific penalty provision in section 101(1) and (2) of the Act of a maximum of 60 penalty units for a natural person and 300 penalty units for a body corporate. Subclause (2) substitutes sections 101(3) and 101(4) of the Act. New section 101(3) introduces a specific penalty provision in section 101(3) of a maximum of 60 penalty units for a natural 129

 


 

person and 300 penalty units for a body corporate, if on receipt of a notice of injury otherwise than specified in section 102(3) an employer does not record the specified particulars in the register. New section 101(4) provides that a worker or any person acting on the worker's behalf may enter such particulars of injury as are specified by the Authority in the register of injuries. Clause 159 introduces a specific penalty provision in section 108(1) of the Act of a maximum of 40 penalty units for a natural person; and 240 penalty units for a body corporate. Subclause (2) repeals section 108(2) of the Act. Subclause (3) inserts a new penalty in section 108(3) the Act of a maximum of 40 penalty units for a natural person; and 240 units for a body corporate. Subclause (4) repeals sections 108(5) and 108(5A) of the Act. Clause 160 Subclause (1) amends section 114D(2) of the Act to make it subject to the requirements of section 114D(6). Subclause (2) introduces a specific penalty provision in section 114D(2) of the Act of a maximum of 60 penalty units for a natural person and 300 penalty units for a body corporate. Clause 161 introduces a specific penalty provision in section 123(1) of a maximum of 40 penalty units for a natural person and 240 penalty units for a body corporate. Clause 162 updates section 129M(2) of the Act to a maximum of 100 penalty units for a natural person and 500 penalty units for a body corporate. Clause 163 This clause inserts a new section 177 in the Act which provides penalties for failure of a non-WorkCover employer to comply with a provision of Part VIA of the Act. New section 177 provides for maximum penalties of 120 units for a natural person; and 600 penalty units for a body corporate. It also provides maximum penalties for a continuing offence of 60 penalty units for a natural person; and 300 penalty units for a body corporate for each day the contravention continues after a finding of guilt in relation to the offence. A continuing offence is defined as where a non-WorkCover employer continues to fail to comply with a provision of Part VIA of this Act after the non-WorkCover employer is found guilty of failing to comply with that provision. 130

 


 

Clause 164 updates the penalty in section 181 of the Act for engaging in prohibited conduct to a maximum of 60 penalty units for a natural person, and 300 penalty units for a body corporate. Clause 165 updates the penalty in section 183(1) of the Act to a maximum of 60 penalty units in the case of a natural person; and 300 penalty units in the case of a body corporate. Clause 166 updates the penalty applying to section 184(5) of the Act to a maximum of 60 penalty units for a natural person; and 300 penalty units for a body corporate. Clause 167 updates the penalty in section 186(3) of the the Act to a maximum of 60 penalty units for a natural person; and 300 penalty units for a body corporate. Clause 168 updates section 240A of the Act. New section 240A(4) provides that a person must not obstruct or hinder a person employed or acting in the execution or under the Authority of a warrant under subsection (1) or aiding or assisting in its execution. It provides for a maximum of 60 penalty units for a natural person; and 300 penalty units for a body corporate. New section 240A(5) provides that a person must not refuse to permit to a search or seizure authorised by a warrant issued under subsection (1). It provides for a maximum of 100 units or 6 months imprisonment, or both, for a natural person; or 600 penalty units for a body corporate. New section 240A(6) provides that a person must not assault, or attempt to assault a person employed or acting in the execution or under the Authority of a warrant issued under subsection (1) or aiding or assisting in its execution. It provides for a maximum of 240 units or two years imprisonment, or both, for a natural person; or 1200 penalty units for a body corporate. Clause 169 updates section 241 of the Act. New section 241(1) provides that a person must not obstruct or hinder a person exercising powers under section 239 or section 240 of this Act. It updates the penalty to a maximum of 60 penalty units for a natural person is; and 300 penalty units for a body corporate. 131

 


 

New section 241(2) provides that a person must not without reasonable excuse refuse or to comply with a requirement made by a person exercising powers under section 239 or 240 of this Act. It updates the penalty to a maximum of 60 penalty units for a natural person; and 300 penalty units for a body corporate. New section 241(3) provides a person must not assault, intimidate or threaten, or attempt to assault intimidate or threaten a person exercising powers under section 239 or section 240 of this Act. It updates the penalty to a maximum of 240 units or 2 years imprisonment, or both, for a natural person; or 1200 penalty units for a body corporate. Clause 170 repeals sections 242(4), (7), (9), (10), (11) and (12) of the Act as these offences have been replaced by specific penalty provisions. Clause 171 repeals the penalty in section 248AA of the Act, and provides for specific penalties for subsections (1) and (2). This clause inserts in sections 248AA(1) and (2) new maximum penalties of 1000 penalty units or imprisonment for 2 years for a natural person, and 5000 penalty units for a body corporate. Clause 172 updates the penalty in section 248 of the Act to a maximum of 1000 penalty units or 2 years imprisonment for a natural person; and 5000 penalty units for a body corporate. Clause 173 updates the penalties in sections 248A(1) and (2) of the Act to 180 penalty units or 6 months imprisonment or both for a natural person; and 900 penalty units for a body corporate. Clause 174 updates the penalty provisions in sections 249(1) and (2) of the Act. The penalty in subclause (1) is updated to a maximum of 120 penalty units for a natural person; or 600 penalty units for a body corporate. The penalty in subclause (2) is updated to a maximum of 180 penalty units, or both, for a natural person; or 900 penalty units for a body corporate. Clause 175 updates the penalty in section 250 of the Act to a maximum of 60 penalty units for a natural person; and 300 penalty units for a body corporate. Clause 176 repeals the general penalty provision in section 251 of the Act and substitutes a new section 251 which provides for an administrative action in the form of enforceable undertakings available to the Authority as an alternative to prosecution of certain offences under this Act or the Accident Compensation (WorkCover Insurance) Act 1993. 132

 


 

New section 251(1) confers on the Authority the power to accept a written undertaking in connection with a matter relating to a contravention or an alleged contravention under subsection (7) by the person who is alleged to have contravened this Act or the Accident Compensation (WorkCover Insurance) Act 1993. New section 251(2) sets out the matters that must be specified in the undertaking. New section 251(3) provides that the person may withdraw or vary the undertaking at any time but only with the Authority's written consent. New section 251(4) provides that the Authority may not prosecute an offence against the person who gave the undertaking for an offence in relation to the matter referred to in subsection (1). New section 251(5) provides that if the Authority considers 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). New section 251(6) provides that if the Magistrates' Court is satisfied that the person has breached a term of the undertaking, the Court may make an order that the person must comply with the undertaking, take specified action to comply with the undertaking, or any other order it considers appropriate. New section 251(7) provides for undertakings to be given in respect of contraventions or alleged contraventions of penalty provisions where the maximum penalty is no more than 180 penalty units for a natural person and no more than 900 penalty units for a body corporate, under this Act or the Accident Compensation (WorkCover Insurance) Act 1993. Clause 177 inserts a new section 251A in the Act. New section 251A(1) enables a court to make an adverse publicity order if the court convicts or finds a person guilty of an offence against this Act or the Accident Compensation Regulations 2001, or the Accident Compensation (WorkCover Insurance) Act 1993 or regulations made under that Act. The court may order an adverse publicity order to-- · require the offender to publicise in a specified way the offence and its consequences, the penalty imposed and any other related matter within a specified period; and/or 133

 


 

· require the offender to notify a specified person or class of persons in a specified way of the offence, its consequences, the penalty imposed and any other related matter within the specified period; and · give the Authority evidence of the action(s) the offender has taken in accordance with the order, within 7 days of the end of the period specified in the order. New section 251A(2)--provides that the court may make an adverse publicity order on its own initiative or on the application of the prosecutor. New section 251A(3)--provides that if the offender fails to provide to the Authority evidence of taking the actions specified in the adverse publicity order under subsection (1), the Authority (or a person authorised in writing by the Authority) may take the action(s) specified in the adverse publicity order. New section 251A(4)--if the Authority is not satisfied that the evidence given by the offender demonstrates that the offender has taken the action(s) specified in the adverse publicity 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 said action(s). New section 251A(5)--provides that the reasonable expenses of taking the action(s) under subsection (3) or (4) is a debt due by the offender to the Authority. New section 251A(6)--provides that the court must not make an adverse publicity order if the costs of complying with the order exceed the maximum penalty amount that the court may impose on the offender for the offence concerned. New section 251A(7)--provides that the court may make an adverse publicity order in addition to, or instead of-- · imposing a penalty on the offender; or · making any other order that the court may make in relation to the offence. Division 2--Amendment of penalties in the Accident Compensation (WorkCover Insurance) Act 1993 Clause 178 updates the penalties under section 7(1) of the Accident Compensation (WorkCover Insurance) Act 1993 to a maximum of 240 penalty units for a natural person; and 1200 penalty units for a body corporate. 134

 


 

Clause 179 updates the penalties under section 10(1) of the Accident Compensation (WorkCover Insurance) Act 1993 to a maximum of 180 penalty units for a natural person; and 900 penalty for a body corporate. Clause 180 updates the penalties under section 12(3) of the Accident Compensation (WorkCover Insurance) Act 1993 to a maximum of 40 penalty units for a natural person; and 200 penalty units for a body corporate. It also updates the penalties under section 12(4) of the Accident Compensation (WorkCover Insurance) Act 1993 to a maximum of 60 penalty units for a natural person; and 300 penalty units for a body corporate. Clause 181 updates the penalties under section 18(2) of the Accident Compensation (WorkCover Insurance) Act 1993 to a maximum of 120 units for a natural person; and 600 penalty units for a body corporate. Clause 182 updates the penalties under sections 20(1) and (2) of the Accident Compensation (WorkCover Insurance) Act 1993 to a maximum of 120 penalty units for a natural person; and 900 penalty units for a body corporate. It repeals section 20(3). Clause 183 substitutes a new section 23(3) of the Accident Compensation (WorkCover Insurance) Act 1993 to update the penalty to a maximum of 120 units for a natural person; and 600 penalty units for a body corporate. This clause also inserts a new section 23(3A) which provides that for the purposes of subsection (3), an employer is taken not to comply with a notice received under subsection (1) or (2) if the rateable remuneration specified in a certified statement provided by the employer is incorrect. Clause 184 amends section 39(4) of the Accident Compensation (WorkCover Insurance) Act 1993 to update the maximum penalties to 100 penalty units for a natural person; and 500 penalty units for a body corporate. This clause also inserts a new section 39(4A) in the Accident Compensation (WorkCover Insurance) Act 1993 which provides that it is a defence to a charge of an offence against subsection (4) if the defendant proves that it was not within the power of the defendant to comply with the requirement. 135

 


 

Clause 185 amends section 42(1) of the Accident Compensation (WorkCover Insurance) Act 1993 to update the maximum penalties to 240 penalty units for a natural person; and 1200 penalty units for a body corporate. Clause 186 amends section 57(2) of the Accident Compensation (WorkCover Insurance) Act 1993 to update the maximum penalties to 60 penalty units for a natural person; and 300 penalty units for a body corporate. It also repeals section 57(5). Clause 187 amends section 60(2) of the Accident Compensation (WorkCover Insurance) Act 1993 to update the maximum penalties to 60 penalty units for a natural person; and 300 penalty units for a body corporate. Clause 188 inserts a new section 68(2A) in the Accident Compensation (WorkCover Insurance) Act 1993 which provides that for the purpose 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 the Accident Compensation (WorkCover Insurance) Act 1993 is-- · any day or date on which the premium or penalty is payable under the arrangement under a payment arrangement between the Authority and employer; or · otherwise, the date specified in a notice given by the Authority under Part 2 as the date on which the premium or penalty is payable. Clause 189 amends section 69(1) of the Accident Compensation (WorkCover Insurance) Act 1993 to provide for maximum penalties of 60 penalty units for a natural person; and 300 penalty units for a body corporate. Clause 190 updates section 70(4) of the Accident Compensation (WorkCover Insurance) Act 1993 and inserts new subsections (5) and (6). New section 70(4) provides that a person must not obstruct or hinder a person employed or acting in the execution or under the Authority of a warrant under subsection (1) or aiding or assisting in its execution. The maximum penalties for breaching subsection (4) are 60 penalty units for a natural person; and 300 penalty units for a body corporate. 136

 


 

New section 70(5) provides that a person must not refuse to permit a search or seizure authorised by a warrant issued under subsection (1). The maximum penalties for breaching subsection (5) are 100 penalty units or 6 months imprisonment, or both, for a natural person; and 600 penalty units for a body corporate. New section 70(6) provides that a person must not assault or attempt to assault a person employed or acting in the execution or under the authority of a warrant issued under subsection (1) or aiding or assisting in its execution. The maximum penalties for breaching subsection (6) are 240 penalty units or two years imprisonment, or both, for a natural person; and 1200 penalty units for a body corporate. PART 16--TRANSITIONAL PROVISIONS Clause 191 inserts transitional provisions into the Accident Compensation Act 1985. Clause 192 makes an amendment to the Accident Compensation (WorkCover Insurance) Act 1993 as a consequence of the insertion of the transitional provisions provided by clause 193. Clause 193 inserts transitional provisions into the Accident Compensation (WorkCover Insurance) Act 1993. PART 17--REPEAL OF ACT Clause 194 provides for the repeal of the Accident Compensation Amendment Act 2009, once passed, on 1 July 2011. The repeal of the Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 137

 


 

 


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