Victorian Bills Explanatory Memoranda

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WORKPLACE INJURY REHABILITATION AND COMPENSATION BILL 2013

   Workplace Injury Rehabilitation and
        Compensation Bill 2013

                         Introduction Print


               EXPLANATORY MEMORANDUM


                                  General
This Bill re-enacts with amendments provisions of the Accident
Compensation Act 1985 and replaces that Act and the Accident
Compensation (WorkCover Insurance) Act 1993 with a new
comprehensive Act that is easier to use and follow.
The Bill will govern workers compensation insurance, payment of employer
premiums, rehabilitation for injured workers, and compensation in relation to
workplace injuries and deaths.
The Bill includes a number of drafting improvements that are intended to
simplify the legislation and make it easier to understand and navigate.
Some of these improvements are--
             a more logical structure, with provisions that govern
              entitlement to compensation, the making of a claim and return
              to work located at the front of the Bill and provisions that are
              ancillary to the WorkCover scheme located towards the end of
              the Bill;
             modernisation of the style and language of some outdated
              provisions in the legislation, and restructure of various
              provisions to make them easier to read and understand;
             new visual aids, with flow chart diagrams to assist workers and
              employers to understand various claims processes and
              obligations;




571139                                1      BILL LA INTRODUCTION 18/9/2013

 


 

new statements of key rights and obligations of workers and employers at the start of the Bill to assist navigation of the legislation; and omission of various obsolete provisions. The Bill has been prepared on the basis that it does not involve changes to injured workers' benefits nor to the way employers' premiums are calculated. The substance of various key provisions in the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act 1993 have therefore been reproduced in the Bill. The Bill includes a number of minor amendments aimed at removing ambiguities, clarifying the intention of various provisions, and correcting a number of drafting anomalies. The Bill also includes a small number of minor policy changes that improve administrative processes and reduce regulatory burden. The wording of some of the more complex and heavily litigated provisions of the Accident Compensation Act 1985 have been reproduced in the Bill. Clause Notes PART 1--PRELIMINARY Clause 1 sets out the purposes of the Bill, which are-- to simplify the provisions applying to the rehabilitation of injured workers and compensation; to streamline the provisions of the Accident Compensation Act 1985 which continue to apply to injuries suffered before 1 July 2014; to provide a single gateway for claims for compensation under the Bill or the Accident Compensation Act 1985; to provide for the registration of employers and the payment of WorkCover premiums; to repeal the Accident Compensation (WorkCover Insurance) Act 1993 and consolidate the substance into this Bill; and to make consequential amendments to the Accident Compensation Act 1985, the Workers Compensation Act 1958 and certain other Acts. 2

 


 

Clause 2 establishes the commencement of various sections of the Bill. The majority of provisions in the Bill will come into operation on 1 July 2014. Clause 6 of the Bill establishes more detailed provisions regarding the application of the Bill. Subclause (2) specifies clauses that will come into operation on the day after the day on which the Bill receives Royal Assent. The clauses make changes to the Accident Compensation Act 1985. It is appropriate that these provisions commence on the day after Royal Assent. Clauses 628(1) and 641 will be deemed to have come into operation on 5 April 2010. The provisions will be applied retrospectively in order to correct technical anomalies in provisions that were introduced or amended in the Accident Compensation Act 1985 from 5 April 2010. Clause 626(7), 630(3) and 647 will be deemed to have come into operation on 1 July 2010. The amendments will be applied retrospectively in order to correct anomalies in the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act 1993. Clause 643 containing a transitional provision for a previous amendment to the Accident Compensation Act 1985 will be deemed to have commenced on 1 November 2010. The amendment will be applied retrospectively to correct an anomaly in a transitional provision for an amendment to the Accident Compensation Act 1985 from 1 November 2010. Clause 630(6) will be deemed to come into operation on 1 July 2012. The amendment will be applied retrospectively to align with the date an equivalent amendment was made in the Transport Accident Act 1986. Clause 3 defines key words and phrases used throughout the Bill. Definitions in clause 3 operate the same as their equivalent definitions in section 5 of the Accident Compensation Act 1985, except where identified otherwise. Some of the definitions have been streamlined or restructured and there are some technical changes to a number of definitions as detailed below. For example, there are changes to the definitions of hospital, nursing service and personal and household service. There are also some new definitions in the Bill as detailed below. 3

 


 

Several definitions from section 5 of the Accident Compensation Act 1985 have been omitted from the Bill. These include the definitions of authorised deposit taking agency, financial year and prescribed which are adequately defined under the Interpretation of Legislation Act 1984. The defined terms of appointed day, uninsured employers and indemnity scheme and WorkCover insurance policy have also been omitted from the Bill on the basis the definitions are no longer required. Accounting records in the Bill is relevant to the governance provisions relating to the Victorian WorkCover Authority. The term is defined by reference to the equivalent definition in the Financial Management Act 1994, which includes "invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry; and such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up". A.M.A Guides confirms the abbreviated phrase for the "American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (other than Chapter 15) as modified by this Act and the regulations". The A.M.A Guides provide the methodology by which assessments of permanent impairment under Division 4 of Part 2 are to be conducted. The guides are modified by this Bill for certain categories of injuries (including psychiatric injury, occupational asthma, and infectious occupational diseases) to take account of Australian best practice in evaluating such injuries. Ambulance service is defined to mean the conveying of a worker by any reasonable means for the purpose of receiving medical or hospital services. The definition is relevant for the purposes of provisions setting out entitlement to compensation for medical and like expenses in Division 7 of Part 5 of the Bill. Applicable prescribed percentage is defined in the Bill for the purposes of the provisions in Part 1 of Schedule 1 which deem certain persons to be workers and employers. The Bill recognises that certain deemed workers under the Bill provide materials and equipment as well as labour services pursuant to contractual employment arrangements. The term is relevant for 4

 


 

the purposes of deductions to the total amount of a contract representing the percentage that on average reflects the materials and equipment component of the contract; and to remuneration and the calculation of PIAWE for various workers under clauses 6 and 8 of Schedule 1. Apprentice is aligned with the equivalent definition contained in the Education and Training Reform Act 2006 being a person whom an employer has undertaken to train under a training contract. The definition is relevant to various provisions in the Bill, including provisions relating to entitlement to compensation and benefits. Authorised agent is defined to mean a person appointed by the Victorian Workcover Authority under clause 501 as an authorised agent. Authorised agents are appointed by the Authority to manage various matters relating to WorkCover insurance and claims for compensation in accordance with clause 501. Authority is defined to mean the Victorian WorkCover Authority. The Authority was established under section 18 of the Accident Compensation Act 1985 and is continued in existence by clause 491(1) of this Bill. The key governance provisions relating to the Authority are in Part 11 of the Bill. Board is defined to mean the Board of Management of the Authority. This was established by section 24 of the Accident Compensation Act 1985 and is continued in existence under clause 502 of the Bill. Various provisions relating to the Board, including the constitution and appointment of members are set out in Part 11 of the Bill. Books is defined in the Bill to include any document. The definition includes a note referring to the definition of document in section 38 of the Interpretation of Legislation Act 1984. That definition captures the substance of the existing longer form definition of books in the Accident Compensation Act 1985 and there will be no changes as a result of the shorter definition in the Bill. Conciliation Officer means the Senior Conciliation Officer or the person appointed as a Conciliation Officer under clause 523(2). A reference to a Conciliation Officer is to be taken to include the Senior Conciliation Officer, unless the contrary intention appears. A Conciliation Officer has a range 5

 


 

of powers to deal with disputes relating to decisions on statutory entitlements under Part 6 of the Bill. Such disputes may relate to the entitlement to compensation under Part 2 and benefits in Part 5 or in relation to a claim under section 98 or 98A of the Accident Compensation Act 1985. There is no equivalent definition in the Accident Compensation Act 1985. Conciliation Service means the Accident Compensation Conciliation Service established under section 52A of the Accident Compensation Act 1985 and continued in existence under clause 519. There is no equivalent definition in the Accident Compensation Act 1985. Corresponding Authority is defined to include various Government departments or authorities in other Australian jurisdictions responsible for administering a law corresponding to this Bill, the Occupational Health and Safety Act 2004, the Dangerous Goods Act 1985, or the Equipment (Public Safety) Act 1994. The definition is relevant to the governance provisions in Part 11 of the Bill, including the power of the Authority to enter into agreements or contracts with a corresponding Authority. It is also relevant to the information disclosure provisions in Division 9 of Part 13. Corrupt conduct refers to the meaning given by section 4 of the Independent Broad-based Anti-Corruption Committee Act 2011. The definition is relevant for the purposes of the Authority notifying the IBAC of certain conduct in accordance with Division 12 of Part 13 of the Bill. There is no equivalent definition in the Accident Compensation Act 1985. Current weekly earnings is defined by reference to clause 152 of the Bill but applies to the entire Bill. The definition is relevant to benefits under the Bill, including the calculation of weekly payments of compensation. There is no equivalent definition in the Accident Compensation Act 1985. Current work capacity in relation to a worker is directly relevant to benefits under the Bill, including weekly payments of compensation and to the return to work obligations of workers and employers in Part 4. It refers to a present ability of the worker to do some work, when the worker is unable to engage in his or her pre-injury employment. If the worker has a current work capacity, the employer has an obligation to provide the worker with suitable employment (defined in 6

 


 

clause 3), and the worker has a range of obligations which include participation in return to work planning. The term is also relevant to the calculation of weekly payments under Part 5, which is affected if a worker has a current work capacity. Declared training program is defined in the Bill to mean a training program in respect of which a declaration under clause 2 of Schedule 1 is in force. The definition is relevant for the purposes of the provisions relating to persons deemed to be workers or employers, as a participant in such a program is deemed to be a worker whilst so participating. Dependant is defined by reference to a person being wholly, mainly or partly dependant on the earnings of a worker. The definition is relevant to provisions relating to workplace deaths, including entitlements to compensation for dependants. Disease is predominantly relevant for the purposes of determining whether there is an entitlement to compensation under Part 2 of the Bill for diseases as defined. Domestic partner is defined in the Bill for the purposes of expanding the definition of partner to include certain non- marital domestic relationships. The definition is aligned with the Relationships Act 2008. The definition is predominantly relevant to provisions relating to workplace deaths, including entitlements to compensation for certain partners. Drive is defined to mean being in control, or in charge, of a motor vehicle. The definition is relevant to provisions in Part 2 establishing a 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. The definition is consistent with the Road Safety Act 1986 and the Transport Accident Act 1986. Eligible subsidiary refers to the substantive meaning of that term in clause 372. The definition is relevant to the provisions governing self-insurers in Part 8 of the Bill. Employer is defined to describe the types of persons who will be taken to be employers under the Bill. This definition, together with the definition of worker, is fundamental to describing the relationship between workers and employers for the purposes of determining the key rights and obligations in 7

 


 

provisions throughout the Bill. The definition confirms that employers may be deemed under the Bill, including under various provisions in Part 1 of Schedule 1. Employer superannuation contribution is defined to mean any contribution made by an employer in respect of a worker for the payment of superannuation or other related benefits as set out in the definition. The definition excludes certain contributions, such as certain voluntary contributions by workers and certain salary sacrifice contributions of a kind specified by the Minister by an order in the Government Gazette. The definition is relevant to section 155 and the exclusion of employer superannuation contributions from ordinary earnings for the purposes of calculating PIAWE. The employer superannuation amount is excluded from ordinary earnings and section 6(2) of the Transport Accident Act 1986, which is relevant for the assessment of serious injury under Part 7. Contributions that do not fit within the definition may be included in ordinary earnings. Exemption limit is defined in reference to a financial year to mean the amount prescribed in the premiums order for the purposes of clause 20(3)(d) of Schedule 1. The definition is relevant to the definition of remuneration in Part 2 of Schedule 1. The definition reflects the equivalent definition in section 3 of the Accident Compensation (WorkCover Insurance) Act 1993. First entitlement period is defined by reference to the definition in section 152, being an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which benefits have been paid or is payable to the worker. The definition is relevant to the calculation of benefits under Part 5. Fringe benefit is defined to have the same meaning as in the Fringe Benefits Tax Assessment Act 1986 but excluding anything that is prescribed by the regulations not to be a fringe benefit. The definition is relevant to the meaning of remuneration under Part 2 of Schedule 1 and for the purposes of calculating non-pecuniary benefits and PIAWE under Part 5. 8

 


 

Full-time worker describes a category of worker based on the number of hours worked in relation to any relevant industrial award. This definition is used to assist in determining the excess an employer is liable to pay under section 72 of this Bill. Heart attack injury is defined to mean an injury to the heart that is associated with any of a number of different conditions. The definition is intended to be exhaustive in its scope, and to bear upon and affect all claims for injuries relating to heart attacks and related conditions. For example, an injury to the heart associated with any heart attack, or an injury to the heart associated with any angina. The definition is relevant to the specific tests for entitlement to compensation for heart attack injury, including in sections 40 and 50 of Part 2. Those tests establish that there is no entitlement to compensation in respect of a heart attack injury unless the worker's employment was a significant contributing factor. This requires a causal link to be established. Hospital is defined to mean a wide range of hospitals and other places, including by reference to the Health Services Act 1988 and the Mental Health Act 1986. The definition is relevant to the definitions of hospital service and medical service and to various provisions relating to compensation in the form of medical and like expenses and weekly payments. The definition has been changed from the equivalent definition in the Accident Compensation Act 1985 as a consequence of the repeal of the Health Act 1958. The definition in the Bill reflects the range of hospitals within the meaning of the Health Services Act 1988 that are intended to be captured. Hospital service is defined by reference to a non-exhaustive list of attendances, treatments and services in connection with a hospital. The definition is relevant to the definition of medical service and to various provisions relating to compensation in the form of medical and like expenses. IBAC and IBAC personnel relate to the Independent Broad- based Anti-corruption Commission established under the Independent Broad-based Anti-corruption Commission Act 2011. The terms are relevant to the Authority's obligations in relation to IBAC under Division 12 of Part 13. These terms have no equivalent in the Accident Compensation Act 1985. 9

 


 

Incapacity is defined to include a disfigurement that is sufficient to affect the earning capacity of a worker or a worker's opportunities for employment, and a specific provision in relation to industrial deafness. The definition is relevant throughout the Bill, including in relation to entitlement to compensation and benefits, and in relation to return to work. Industrial award is defined with reference to instruments under the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The definition is relevant to other definitions in section 3 and for the purposes of calculating benefits under Part 5. Industrial deafness is defined to mean any condition of deafness caused by certain exposure to industrial noise. The definition is relevant to the determination of compensation for industrial deafness under various provisions of the Bill, including in accordance with the industrial deafness provisions in Division 4 of Part 2. Injury is defined broadly to mean any physical or mental injury, including industrial deafness and diseases contracted in the course of employment. The definition also includes a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease. The definition of injury is critical to the tests for entitlement to compensation in Part 2 of the Bill and to other provisions throughout the Bill. Interest at the prescribed rate is defined for the purposes of confirming the interest rate to be applied to different amounts payable under the Bill. For example, interest payable on certain outstanding weekly payments under Part 5. The rate is determined by reference to the Penalty Interest Rates Act 1983. Legal practitioner is defined to align with the meaning in the Legal Profession Act 2004 which refers to a person who holds a current legal practising certificate or a current interstate practising certificate. Medical Panel is defined as a Medical Panel constituted under Division 2 of Part 12. In addition to determining medical issues concerning entitlements to compensation, a Medical Panel can determine medical questions in the course of proceedings for the assessment of serious injury under Part 7. 10

 


 

Medical practitioner prescribes the relevant criteria for determining who is a medical practitioner for the purposes of the Bill. This is relevant as an injured worker's medical practitioner and other healthcare professionals are primarily responsible for identifying medical and like services that are appropriate for an injured worker's injury (see also Division 7 of Part 5 regarding medical and like services that a worker may be entitled to). Medical question covers aspects of a worker's medical condition that may be uncertain or in dispute. A medical question may relate to one or more of the following: the level of the worker's impairment, the extent of incapacity for work and whether it is permanent, whether the worker is able to perform other work, the appropriateness of any current treatment, the extent and likely prognosis for the condition. The Bill provides for the Court, a Conciliation Officer, the Authority or a self- insurer to refer medical questions to the Medical Panels. The identification of medical questions and the referral process play an integral role to the resolution of disputes under the Bill. Medical service is defined to specify the particular types of medical services that may be compensable under Part 5 of the Bill. The definition reflects the equivalent definition from the Accident Compensation Act 1985 with some changes. Paragraph (b) of the definition has been changed to include "orthoses" as they are a compensable medical service under the Bill. This change is intended to provide for simplified and consistent treatment of prostheses and orthoses, which are often fitted by the same clinician. Paragraph (f) of the definition has been changed to refer separately to a registered chiropractor and a registered osteopath to reflect that separate registrations are required for those specialities. Member of a family is defined by reference to the meaning in clause 26 of Schedule 1 of the Bill. The definition specifies the persons who are taken to be members of a person's family for the purposes of the Bill. Persons who are members of a deceased workers family may be entitled to compensation under Division 8 of Part 5 of this Bill. Employer's who employ members of their own family may be exempt from certain return to work obligations under Part 4. 11

 


 

Midwife is defined by reference to the registration requirements for a person to be a midwife for the purposes of the Bill. The definition is relevant to the definition of nurse. Motor vehicle is defined in the Bill to align with the meaning in section 3(1) of the Road Safety Act 1986. The definition is relevant to provisions in Part 2 establishing a 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. The definition is consistent with the Transport Accident Act 1986. No current work capacity refers to a present inability of a worker to return to their pre-injury employment or to engage in suitable employment. It is relevant to benefits under the Bill, including weekly payments of compensation and for the purposes of the return to work obligations of workers and employers under Part 4 of the Bill. The term current work capacity is also defined in the Bill. Non-WorkCover employer is defined by reference to the definition in clause 413. Clause 413 reflects the introduction of an employer's requirement to register with the Authority under clause 435. The definition is relevant for the non-WorkCover employer provisions in Part 9 of the Bill. Notice of penalty means a notice in writing of a penalty payable by an employer under Part 10. The provisions in Part 10 enable the Authority to apply a default penalty in certain circumstances where an employer, or a person acting on behalf of the employer, has failed to comply with premium obligations under the Bill. There is no equivalent of this definition in the Accident Compensation Act 1985 or Accident Compensation (WorkCover Insurance) Act 1993. Nurse is defined by reference to the registration requirements for a person to be a nurse for the purposes of the Bill. The definition is relevant to the definition of nursing service. Nursing service is defined to include certain services provided by a nurse or a midwife as those terms are defined in the Bill. The definition is relevant to the Division 7 of part 5, which regulates the entitlement to medical and like services. It is also relevant to the definition of professional services which may be compensable under the Bill. Professional services are also regulated by Division 6 of Part 13 of the Bill. The definition 12

 


 

differs from its equivalent in the Accident Compensation Act 1985 as it clarifies that nursing services can only be provided by a nurse as defined, and midwifery services may only be provided by a midwife as defined. Occupational rehabilitation service is defined by reference to a list of services that may be provided by a person who is approved by the Authority for the purposes of occupational rehabilitation, including under Division 6 and Division 7 of Part 5. The services may be provided under those provisions to assist injured workers return to work. Partner is defined in the Bill by reference to a worker's spouse or domestic partner. The terms are predominantly relevant to provisions relating to workplace deaths, including entitlements to compensation for certain partners. Person under a disability is definedl to mean certain persons who are incapable of managing their affairs under the workers compensation legislation. The definition is relevant to Division 8 of Part 5 and Division 3 of Part 6 of this Bill. The definition aligns with similar definitions in the Wrongs Act 1958 and relevant rules for the Magistrates' Court and the County Court. Personal and household service is defined to specify certain services that may be compensable under the Bill. The definition requires that the relevant services must be approved by the Authority. The definition has been changed from the equivalent definition in the Accident Compensation Act 1985 to remove the reference to "counselling". This change reflects the current practice that counselling is regulated as a medical service and is not approved as a personal and household service. The reference to counselling is unnecessary in this definition. Pre-injury average weekly earnings is defined by reference to clause 153. The definition is predominantly relevant to weekly payments under Part 5 of the Bill, which are calculated by reference to a worker's pre-injury average weekly earnings. It is also relevant to the calculation of weekly pensions for dependents under Part 5. This definition has no equivalent in the Accident Compensation Act 1985. Premium period is defined in relation to a premiums order, which sets out how premium is calculated for a 12 month period. 13

 


 

Premiums order is defined by reference to clause 448. Part 10 of the Bill provides that a premiums order may be made with respect to a premium period and specify the methods for calculating premiums payable by employers, and any matter or thing required or permitted by this Bill. The definition reflects the equivalent definition in section 15 of the Accident Compensation (WorkCover Insurance) Act 1993. Professional service is defined to mean a range of different services, including various medical and like services, and legal services provided by a legal practitioner. The definition is relevant to the provisions of Division 7 of Part 5. Professional services are also regulated under Division 6 of Part 13 of the Bill including penalties for certain conduct. Rateable remuneration is defined by reference to the detailed definition in clause 24 of Schedule 1. The definition is relevant for the purposes of premium and reflects the equivalent definition in section 8 of the Accident Compensation (WorkCover Insurance) Act 1993. The Bill defines the terms registered chiropractor, registered dentist, registered optometrist, registered osteopath, registered physiotherapist, registered podiatrist and registered psychologist. These terms are defined by reference to certain registration requirements under the Health Practitioner Regulation National Law. The Health Practitioner Regulation National Law Act 2009 came into effect on 1 July 2010 and provides nationally consistent legislation to regulate certain health professionals. There are also National Health Practitioner Boards responsible for regulating such practitioners with the support of the Australian Health Practitioners Regulation Agency. The definitions are relevant to a number of other definitions in the Bill and to the provisions regulating compensation for medical and like expenses in Part 5. The definitions reflect the equivalent definitions from the Accident Compensation Act 1985. Registered employer is defined to mean an employer which is registered with the Authority under Part 10. The term relates to the status of an employer. A registered employer is subject to premium-related obligations. Registration or absence of registration of an employer with the Authority does not affect a 14

 


 

worker's entitlement under the Bill to compensation for a work- related injury. There is no equivalent of this definition in the Accident Compensation Act 1985 or Accident Compensation (WorkCover Insurance) Act 1993 as registration was not a concept relevant to those Acts. Remuneration is defined by reference to Part 2 of Schedule 1. The definition is relevant to the calculation of premium. The definition reflects the equivalent definition in section 3AA of the Accident Compensation (WorkCover Insurance) Act 1993. Retirement age is defined in relation to a worker to mean the earlier of 65 years or the normal retiring age for workers in a particular occupation. The definition is relevant to entitlement to weekly payments of compensation under Part 5 of the Bill. The definition does not refer to the age when a particular worker actually retires, but rather the age at which workers may be expected to retire. Second entitlement period is defined by reference to section 152. The definition is relevant to the period that weekly payments are payable under Part 5. Following expiration of the second entitlement period, different tests apply to maintain weekly payments. Self-insurer is defined to refer to an employer which is approved as a self-insurer under Division 3 of Part 8 of the Bill and to a body corporate that has been approved as a self-insurer under Accident Compensation Act 1985, subject to specified conditions. The term generally refers to employers that are approved as self-insurers to manage their workers compensation claims and liabilities in accordance with the legislation and without paying premium. Senior Conciliation Officer means the person holding office as the Senior Conciliation Officer under clause 523(1). The Senior Conciliation Officer is the sole member of the Accident Compensation Conciliation Service, whose powers and functions are set out in Division 1 of Part 13. There is no equivalent of this definition in the Accident Compensation Act 1985. 15

 


 

Shift allowance is defined to mean an allowance or loading paid or payable for shift work or working on public holidays, Saturdays or Sundays. The definition is relevant to the calculation of pre-injury average weekly earnings under Part 5 of the Bill as shift allowances may be included in such calculations. Significant contributing factor is defined by reference to clause 25 in Schedule 1. Clause 25 establishes various factors that must be taken into account for the purposes of determining whether a worker's employment was a significant contributing factor to an injury. The definition is relevant to provisions in Part 2 of the Bill governing entitlement to compensation. Specified workplace means any factory, mine, office, quarry shop or warehouse or any place at which 10 or more workers are engaged in work or from which the work of the workers is managed or controlled. The term is relevant to understanding obligations in clauses 16 and 17 relating to displaying notices and maintaining a register of injuries. There is no equivalent of this definition in the Accident Compensation Act 1985, but the operation of this definition reflects current practice. Spouse is defined by reference to marriage and is relevant to the definition of partner and to the provisions relating to workplace deaths, including entitlements to compensation for certain partners. State average weekly earnings is defined by reference to the relevant average weekly earnings as at 15 June for all employees of Victoria published by the Australian Statistician. The definition is relevant to the calculation of weekly payments of compensation under Part 5 of the Bill. Stroke injury is defined to mean an injury to the brain that is associated with any of a number of different conditions. For example, an injury to the brain associated with any stroke, or an injury to the brain associated with any cerebral infarction. The definition is intended to be exhaustive in its scope and to bear upon and affect all claims for injuries relating to stokes and related conditions. The definition is relevant to the specific tests for entitlement to compensation for stroke injury, including in sections 40 and 50 of Part 2. Those tests establish there is no entitlement to compensation in respect of a stroke 16

 


 

injury unless the worker's employment was a significant contributing factor. Student worker is defined by reference to the meanings in clause 1(a), (b), (c), (d) and (e) of Schedule 1. The definition refers to various types of student workers within the meaning of the Education and Training Reform Act 2006. The definition is relevant for determining whether a student worker is deemed to be a worker for the purposes of the Bill. Suitable employment is defined to mean employment in work for which a particular worker is currently suited having regard to a number of factors specified in the definition. The definition makes it clear that employment may be suitable employment regardless of whether it is available in the employment market. The definition is relevant to the definitions of current work capacity and no current work capacity, to the weekly payments provisions in Part 5 of the Bill, and return to work provisions in Part 4 of the Bill. Superannuation benefit is defined by reference to clause 27 of Schedule 1. The definition refers to money paid or payable by an employer in respect of a worker in accordance with relevant Commonwealth superannuation legislation, including the Superannuation Guarantee (Administration) Act 1992, the Small Superannuation Accounts Act 1995, and the Retirement Savings Accounts Act 1997. The definition reflects the equivalent definition in section 3 of the Accident Compensation (WorkCover Insurance) Act 1993. Transport accident is defined by reference to section 3(1) of the Transport Accident Act 1986. The definition is relevant to the targeted penalty regime in Part 2 of the Bill 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. The definition is also relevant to the provisions relating to liability to pay compensation under the Bill and to the common law provisions. Twice the State average weekly earnings is defined by reference to section 159. The definition is relevant to the calculation of weekly payments under Part 5 of the Bill. There is no equivalent of this definition in the Accident Compensation Act 1985. 17

 


 

Weekly payment is defined to mean compensation in the form of a weekly payment under Division 2 of Part 5 of the Bill. Workers may be entitled to weekly payments of compensation under the Bill where an incapacity for work results from, or is materially contributed to by, an injury which entitles a worker to compensation. The definition of weekly payment is relevant to various provisions throughout the Bill. WorkCover Authority Fund mean the Fund continued in existence under section 513, which was established under section 32 of the Accident Compensation Act 1985. There is no equivalent of this definition in the Accident Compensation Act 1985. Worker is defined by reference to the types of individual persons who will be taken to be workers under the Bill. This definition, together with the definition of employer, is fundamental to describing the relationship between workers and employers for the purposes of determining the key rights and obligations in provisions throughout the Bill. The definition confirms that workers may be deemed under the Bill, including under various provisions in Part 1 of schedule 1. Workers compensation cover means insurance or registration required under a law of another State or Territory in respect of liability for statutory workers compensation. The definition is relevant to the insurance provisions in Part 10 of the Bill and reflects the equivalent definition in section 7(1AB) of the Accident Compensation (WorkCover Insurance) Act 1993. Workplace particulars refers to the types of particulars that must be entered in a register of injuries and notice of injury, which is relevant to obligations in clauses 17 and 18 relating to the register of injuries and a notice of injury. There is no equivalent of this definition in the Accident Compensation Act 1985, but the operation of this definition reflects current practice. Clause 4 contains interpretation provisions. The provision confirms that for the purposes of the definition of injury, the employment of a worker extends to any travelling or the circumstances referred to in section 46 other than subsection (1)(a). That provision sets out the limited circumstances when workers will be covered by the Bill when they are travelling and not in attendance at their place of employment. This provision 18

 


 

reflects the equivalent section 5(1A) of the Accident Compensation Act 1985. The provision also establishes an inclusive and broad definition of determination or decision for the purposes of the Bill. This reflects the equivalent section 5(3) of the Accident Compensation Act 1985. The provision also acts as a signpost to other interpretation provisions located in Schedule 1 of the Bill. These include the provisions relating to certain persons who are deemed to be workers or employers for the purposes of the Bill, and provisions relating to the meaning of remuneration. Clause 5 establishes the application of the Bill. In general, the Bill will apply to injuries that arise on or after 1 July 2014. The clause makes special provision for injuries that arise out of or in the course of employment, and that occur by way of gradual process. Subclause (4) confirms that Division 5 of Part 7 (Conduct of common law proceedings), applies in relation to an injury, disease or industrial deafness caused to or suffered by a worker, before on or after 1 July 2014, that has arisen out of, or due to the nature of employment, in which the worker was employed at any time. Clause 6 establishes special rules relating to claims for compensation to address the interaction between the Accident Compensation Act 1985, the Workers Compensation Act 1958 and the Bill. Subclause (1) provides for a single gateway for claims to be made, which means that the Bill will apply to any workers compensation claim made on or after commencement for injuries sustained both before and after commencement. This includes claims that would currently be made under the Accident Compensation Act 1985. It is not intended that the single claims gateway apply to maims or pain and suffering, which will continue to be made under the Accident Compensation Act 1985. Once a claim is made, entitlement and benefits will be determined by the relevant provisions in the relevant Act, according to date of injury. This approach is intended to ensure that there is no change to entitlement or benefits. 19

 


 

Subclauses (4) and (5) prevent the potential for double payment by making clear that a claim for compensation may not be made in circumstances where the same claim has been made or is in process under the Accident Compensation Act 1985 or the Workers Compensation Act 1958. Subclauses (6)-(9) establish rules relating to the application of Part 6 in respect of disputes arising under the Accident Compensation Act 1985, the Workers Compensation Act 1958 or the Bill. Subclauses (8) and (9) make specific transitional rules in relation to disputes which are active at the time the Bill commences as an Act. These provisions are intended to ensure that the provisions in the Bill apply as soon as possible. Clause 7 establishes special rules relating to entitlement to compensation to address the interaction between the Accident Compensation Act 1985, the Workers Compensation Act 1958 and the Bill. Among other things, it confirms that a person is not entitled to receive weekly payments in respect of the same injury under each of those Acts and the Bill. Clause 8 establishes the general rule that the provisions in this Bill bind the Crown. The provision confirms the application of the Bill to the Crown. The provision reflects the equivalent section 3A of the Accident Compensation Act 1985. Clause 9 establishes a specific statutory mechanism for injured workers to access certain information held by the Authority or a self- insurer or an employer subject to specified exemptions. The clause is applicable to requests for information under the Accident Compensation Act 1985 and the Bill. The provisions will enable injured workers to access information relevant to their claim for compensation from the Authority or a self-insurer. The provisions also enable injured workers to access information relevant to their claim for compensation and given by a provider of a medical service or a hospital service to the Authority or a self-insurer or an employer. There are procedural provisions in section 9 relating to requests for information, including requirements for the Authority or self-insurer to give notice and reasons for decisions, and confirmation that the dispute resolution provisions in Part 6 of 20

 


 

the Bill will apply for the purposes of a failure to comply with section 9. The Authority or self-insurer may refuse to provide exempt information. The test for determining exempt information under clause 9 of the Bill is aligned with the test for determining what is an exempt document under sections 30, 31, 32, 33 or 35 of the Freedom of Information Act 1982. Those provisions include exemptions for internal working documents, law enforcement documents, documents affecting legal proceedings, documents affecting personal privacy, and documents containing material obtained in confidence. The Authority or self-insurer may also refuse to provide the information requested where there are no reasonable grounds for requesting the information on the basis that access to the information has previously been granted or refused. Further, the Authority or self-insurer must not provide access to information where the provision of health information would pose a serious threat to the health or life of the person requesting the information. In this situation the procedure in the Division 3 of Part 5 of the Health Records Act 2001 will apply. That procedure allows for a third party health service provider to review the matter and assess the potential impact on the health or life of the person requesting the information. Clause 9 re-enacts section 107A of the Accident Compensation Act 1985. Division 2--Principles and Guides Clause 10 establishes the objectives of the Bill. The provisions of the Bill are intended to give full effect to those objectives, including-- to reduce the incidence of accidents and diseases in the workplace; to ensure effective occupational rehabilitation of injured workers and their return to work; to ensure appropriate compensation is paid to workers in the most socially and economically appropriate manner; and to minimise the burden on Victorian businesses with appropriate premium rates and a fully-funded scheme. 21

 


 

The objectives in clause 10 are aligned with the objectives of the Authority in clause 492 of the Bill, and are also consistent with the objectives set out in section 3 of the Accident Compensation Act 1985. Clause 11 sets out a high level statement of the rights and obligations of a worker which are set out in detail in the Bill. As outlined in clause 14, the provision is not intended to create any legal right or give rise to any civil cause of action, and it is intended as a guide to ensure workers are aware of key rights and obligations established by provisions in the Bill. Clause 12 provides a high level statement of the rights and obligations of an employer, which are set out in detail in the Bill. As outlined in section 14, the provision is not intended to create any legal right or give rise to any civil cause of action. Clause 13 A number of flow charts have been included in this Bill as an aid to understanding complex claims processes and other matters. For example, the new flow chart introduced in section 15 relating to the giving of notice of injury. Clause 13 of the Bill makes it clear that the flow charts do not form part of the Bill and are only intended to be guides to the reader understanding the provisions to which the flow charts relate. Clause 14 confirms that the provisions in Division 2 of Part 1 relating to principles and guides are not intended to create in any person any legal right or give rise to any civil cause of action. For example, this provision is intended to confirm that the provisions relating to principles and guides have no impact on liability for the payment of any form or compensation or damages under the Bill and a person may not bring any proceedings relating to the provisions in Division 2 of Part 1. The provisions in Division 2 are intended to be a guide to understanding the Bill. 22

 


 

PART 2--WORKPLACE INJURIES Division 1--Injuries Division 1 sets out the procedures which should be followed if a worker is injured at work and then makes a claim for compensation under this Bill in relation to that injury. It contains provisions to establish a single gateway to make a claim for benefits under this Bill or the Accident Compensation Act 1985. These provisions mean that, irrespective of the date of injury, a claim for compensation will be made under the Bill. Entitlement and benefits will be determined according to the date of injury. Clause 15 contains a flowchart which describes the process relating to giving notice of an injury to an employer. Clause 13 provides that a flow chart does not form part of this Bill; and is not intended to have any legal status. Clause 16 requires an employer to display a notice at each specified workplace containing information relating to notice of injury, making a claim for compensation, and the benefits that may be available to injured workers. The notice must be in a form approved by the Authority. It is intended that the provision of this information will assist workers in understanding these processes and the benefits to which they may be entitled. Penalties apply if an employer fails to comply with this requirement. These penalties are intended to encourage compliance with the requirement; and recognise that a worker who is not aware of their entitlement or how to pursue it is less likely to do so. The penalties are consistent with the penalty scale in the Sentencing Act 1991. This clause re-enacts section 101(1) of the Accident Compensation Act 1985. This clause additionally requires that the notice form approved by the Authority must be published on a Government Internet Website and be available for inspection my members of the public. This requirement aligns with current practice. The term specified workplace is defined in clause 3 of the Bill. The definition makes clear for workers and employers the kind of workplaces which must comply with the requirements under this clause. The new definition reflects current practice. 23

 


 

Clause 17 requires an employer to keep a register of injuries and to ensure that workplace particulars of an injury are entered into the register if a worker is injured. The clause also allows a worker, or any person acting on behalf of a worker, to enter the workplace particulars of an injury into the register. The requirement ensures that employers receive notice of all injuries and is intended to promote efficient and transparent injury and claims management. Penalties apply if an employer fails to comply with this requirement. These penalties are intended to encourage compliance with the requirement. The penalties are consistent with the penalty scale in the Sentencing Act 1991. This clause re-enacts section 101(2), (3) and (4) of the Accident Compensation Act 1985. The term workplace particulars is now defined in clause 3 of the Bill. The definition makes clear for workers and employer what kind of particulars must be entered into a register of injuries. The particulars identified are those which assist in making a claim and evidencing the details of an injury and how it occurred. The new definition reflects current practice. Clause 18 establishes that a worker must give their employer notice that they have had an injury within 30 days after they become aware of the injury. The notice must be in a form approved by the Authority and must include the workplace particulars (as defined in clause 3) of the injury. If a worker does not comply with this requirement they may not be entitled to seek compensation for the injury. This requirement ensures that employers receive prompt notification of all injuries and is intended to promote efficient and transparent injury and claims management. The clause allows the Authority or self-insurer to waive or extend the time in circumstances where it was not reasonably practicable for the worker to give notice within the time limit, where the failure to give notice did not unfairly prejudice the employer, or where reliance on the time limit would result in serious injustice to the worker. This ensures that workers are not unfairly refused compensation for failing to meet this requirement. 24

 


 

This clause re-enacts section 102 of the Accident Compensation Act 1985. This clause additionally requires that the notice form approved by the Authority must be published on a Government Internet Website and be available for inspection my members of the public. This requirement aligns with current practice. Clause 19 contains a flowchart which describes the process relating to making a claim. Clause 13 provides that a flow chart does not form part of this Bill; and is not intended to have any legal status. Clause 20 sets out the process by which a worker may make a claim for compensation under the Bill or the Accident Compensation Act 1985. It establishes that the claim must be in a form which has been approved by the Authority and be accompanied by specified information and documents. The information requirements are intended to ensure that claims contain all of the relevant information which may be necessary in order to be processed. The standard form requirements assist the worker in making a claim by specifying the information they must provide; and to assist the Authority in efficiently processing and managing a claim. Clause 20(2) provides that a claim for weekly payments must: state the date on which the worker ceased work; be accompanied by a medical certificate; or be supplemented at a later date by a medical certificate. The Authority or self-insurer requires this information in order to process a claim for weekly payments. Clause 20(3) specifies that a claim (other than a claim arising from the death of a worker) must include a medical authority signed by the worker. This is necessary to enable the Authority or self-insurer to obtain medical information relevant to determining and managing the claim. Clause 20(4) specifies that weekly payments are not payable until a medical certificate is provided because, under Division 3 of clause 5, a worker's entitlement to compensation in the form of weekly payments is contingent on them having an incapacity for work which has been medically certified. 25

 


 

Clause 20(5) provides that a claim must be given to or served on the employer or self-insurer. It is intended that involving the employer in the claims lodgement process will facilitate interactions between the worker and the employer which may have positive implications for the worker's return to work prospects. A worker may lodge a claim directly on the Authority, as set out in Division 2 of Part 2, where it is not possible to give or serve the claim on an employer. For example, where the employer refuses to receive a claim, the employer cannot be identified, or the employer has been wound up. Clause 20(8) specifies that a claim must be made within specified timeframes. For example, a claim for weekly payments must be made as soon as practicable after the incapacity arising from the injury becomes known. This requirement ensures that treatment, rehabilitation and return to work activities can be arranged as soon as possible. The Authority or self-insurer may waive the time limit if they are satisfied that a person had a special excuse for not making the claim within the time limit. This ensures that workers are not unfairly refused compensation for failing to meet this requirement. Clause 20 re-enacts section 103(2), (4B) and (4G) of the Accident Compensation Act 1985. It also operates the same as section 103(1), (3), (4A), (4C) and (4D) of the Accident Compensation Act 1985, which remain in that Act. This clause additionally requires that the claim form approved by the Authority must be published on a Government Internet Website and available for inspection my members of the public. This requirement aligns with current practice. The content of section 103(9), (10), (11) and (12) of the Accident Compensation Act 1985 is not contained in the Bill as those provisions relate to claims for compensation for maims and pain and suffering under sections 98 and 98A of the Accident Compensation Act 1985 which are not provided for in this Bill. Those provisions will continue to operate by virtue of the Accident Compensation Act 1985 after the commencement of this Bill. 26

 


 

Clause 21 requires that where an employer, self-insurer or the Authority receives a claim for compensation in accordance with clause 20 they must acknowledgement in writing that the claim has been received. The provision also establishes a process for a worker to notify the Authority that they have given or served a claim for compensation with an employer. These provisions promote efficient and transparent claims management. Clause 21 re-enacts section 103(4E) and (4F) of the Accident Compensation Act 1985. Clause 22 makes clear that a claim for compensation will be deemed not to have been made in certain circumstances. A claim containing a material defect, omission or irregularity that is not within the knowledge of the Authority, employer or self-insurer will be deemed to have not been made if it is returned by the Authority or a self-insurer within 14 days with a notice containing certain matters specified in the provision. This ensures that the claim for compensation contains all of the relevant and necessary information in order to be processed. A claim which is made after the worker has ceased to be employed by the relevant employer will be deemed to have not been made. This is intended to promote efficient and transparent injury and claims management. However, this rule does not apply where the claimant satisfies the Authority or self-insurer that he or she could not reasonably have made the claim while employed by that employer. This ensures that workers are not unfairly refused compensation for failing to meet this requirement. This clause re-enacts section 103(4H) of the Accident Compensation Act 1985. It also operates the same as section 103(5) and (6) of the Accident Compensation Act 1985 which will remain in that Act. Clause 23 allows the Minister to may make guidelines relating to the process via which a claim for compensation may be given served or lodged. It is intended that these guidelines specify further details about the claims lodgement process to support that process. For example, whether the claim may be forwarded by mail and how it may be forwarded by mail. This clause re-enacts section 103(4C) and (4D) of the Accident Compensation Act 1985. 27

 


 

Clause 24 prohibits a person from seeking to recover any costs in respect of assisting a person to make, lodge or forward any application or claim for compensation. It is intended that there should be no cost barriers to seeking such compensation. This clause operates the same as section 123B of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring prior to the commencement of this Bill. Clause 25 requires that a medical certificate accompanying or submitted after the claim for weekly payments is made--be issued by a medical practitioner, as defined in clause 3; be in a form approved by the Authority; and specify the worker's capacity for employment and the expected duration of any incapacity. The certificate is of no effect if it contains a material defect, omission or irregularity. This is intended to ensure that the claim for compensation contains all of the relevant and necessary information in order to process the claim. The certificate must specify the worker's capacity for employment and the expected duration of any incapacity because the Authority or self-insurer requires this information in order to determine whether the worker is entitled to compensation in the form of weekly payments under Division 3 of Part 5. The information may also inform the Authority or self-insurers decisions regarding rehabilitation and return to work arrangements. Where a medical certificate accompanying or submitted after the claim for weekly payments is made specifies a duration of more than 14 days, it will only be valid, for the purposes of Division 3 of Part 5, for the first 14 days. This ensures that the Authority or self-insurer receives up to date information about the worker's capacity for employment at this early stage in the claim. The Authority or self-insurer has a discretion to allow a certificate which specifies a duration of more than 14 days in special circumstances. For example, where a worker has a very serious injury and the Authority or self-insurer is satisfied that it is appropriate for a medical certificate under section 24 to address the worker's capacity over a longer period than 14 days. This clause re-enacts section 105(1), (2) and (3) of the Accident Compensation Act 1985. 28

 


 

Clause 26 establishes a process which a worker may follow if they are unable to obtain a medical certificate under clause 25 of the Bill. It provides that a worker may refer the matter to a Conciliation Officer and seek their assistance to obtain a certificate. If the Conciliation Officer is satisfied that the worker has made reasonable attempts to obtain a certificate, the worker may apply to a court for a determination of the entitlement of the worker to compensation. The determination is equivalent to a medical certificate for the purposes of this Bill. This process provides a worker with alternative avenues to obtain a medical certificate. This clause re-enacts section 105(4) of the Accident Compensation Act 1985. This clause additionally requires a worker to refer the matter to a Conciliation Officer prior to applying to a court. It is intended that this step may result in more efficient resolution of a dispute regarding the issue of medical certificates by facilitating resolution at conciliation without the need for costly and lengthy litigation. For example, a Conciliation Officer may be able to assist a worker who does not have a medical certificate (as required by clause 24) to correct material defects or facilitate attendance by a medical practitioner. Clause 27 allows the Authority or a self-insurer to require a worker who has made a claim for compensation to submit to an examination by an "independent medical examiner" at reasonable intervals. This enables the Authority or self-insurer to obtain independent medical evidence in relation to a claim. Where a worker unreasonably refuses to have, or unreasonably obstructs, a medical examination under section 27, any claim or proceedings or entitlement to compensation will be suspended until the examination takes place. Any weekly payments which would otherwise be payable during the period of suspension are forfeited and may not be recovered at a later date. The period of suspension must also be taken into account for the purposes of calculating other time periods under Parts 2, 3, 5 or 7. These consequences are intended to encourage a worker to comply with the requirement. This clause re-enacts section 112 of the Accident Compensation Act 1985. 29

 


 

Clause 28 is intended to provide a sign post to employers and workers in relation to their return to work obligations. The sole purpose of the provision is to make employers aware of the substantive obligations to assist in a worker's return to work, and to make workers aware of the substantive obligations to make reasonable efforts to return to work. This clause which has no equivalent in the Accident Compensation Act 1985 does not change the operation of the legislation. Division 2--Claims for compensation that may be lodged with Authority Division 2 is intended to ensure that a worker is not disadvantaged or deprived of the opportunity to make a claim for compensation in relation to a work-related injury where their employer cannot be found; has ceased to exist; is refusing to receive the worker's claim; has not passed on the worker's claim to the Authority; or is an exempt employer (an employer that has paid or is likely to pay less than $7500 in remuneration during a financial year). Division 2 provides that a claim received by the Authority directly from a worker under Division 2 is to be processed and managed in the same way as a claim that has been made directly to an employer. This ensures that all workers are treated consistently under the Bill regardless of how they made their claim. Division 2 also gives the Authority discretion to recover the cost of the worker's claim from an employer which has not applied to be registered with the Authority under section 434 but should have done so. The Authority can choose to waive all or part of what the employer is required to pay under specific circumstances. If a worker's claim relates to an exempt employer, Division 2 requires the employer to apply to be recorded as an employer with the Authority to assist in the management of the worker's claim for compensation and collection of the employer's claims history. Division 2 of Part 2 of the Bill contains the substance of the Uninsured Employers and Indemnity Scheme (UEIS) in Part 5 of the Accident Compensation (WorkCover Insurance) Act 1993, which is to be repealed. Clause 29 displaces the general requirement that a worker must lodge a claim for compensation with their employer in specified circumstances. The clause allows a worker to make a claim for compensation directly to the Authority where the worker 30

 


 

becomes aware that their employer has not complied with its obligations under the Bill to receive and notify the Authority of the worker's claim, where an employer cannot be identified, where an employer cannot be found, where an employer is dead or an externally-administered body corporate, where an employer refuses to accept a worker's claim, or where an employer ceases to exists. Clause 29 works to ensure that all injured workers are able to make a claim for compensation and begin receiving compensation to which they are entitled as soon as practicable. If a worker makes a claim directly with the Authority when the circumstances outlined in clause 29 do not apply, the worker's claim will be deemed to not have been made if it is returned to them by the Authority within 14 days of receipt by the Authority. The time within which a worker's claim must be dealt with will not begin until they have given their claim to their employer. Clause 29 is not intended to be used by workers who are reluctant to make their claim for compensation with their employer or prefer to make their claim directly with the Authority. The ability of the Authority to return claims from workers helps reduce the likelihood that a worker can bypass their employer when making a claim for compensation for reasons other than those provided for under section 29. Clause 29 re-enacts section 106(1), (3), (4) and (5) of the Accident Compensation Act 1985. Clause 30 provides that where a worker lodges a claim directly with the Authority under clause 29, the Authority may require the worker to provide further information to assist in processing the worker's claim. This additional information may also help the Authority to identify and locate the employer. Where a claim is lodged directly with the Authority under this provision, the Authority has 35 days to notify the worker if it will accept the claim. If the employer is identified after the worker has made their claim to the Authority, the 28 day period that an employer who is a self-insurer would ordinarily have to determine whether they will accept the claim (under clause 75) runs from the date to accept or reject the claim. Clause 30 operates the same as section 59(2), (3A) and (4) of the Accident Compensation (WorkCover Insurance) Act 1993. 31

 


 

Clause 31 sets out the process for a worker to lodge a claim for compensation where their employer pays or is likely to pay less than $7500 in remuneration in a financial year and does not employ an apprentice. The process requires that a worker first give their claim to their employer who must then lodge the claim to the Authority within 5 days of receiving it from the worker. Clause 31 enables a worker of an employer to make their claim directly to the Authority where the worker becomes aware that the employer has not complied or is not likely to comply with their obligation to receive and notify the Authority of the worker's claim or where an employer refuses to accept a worker's claim. Clause 31 is intended to ensure that an injured worker is able to make their claim for compensation and begin receiving compensation to which they are entitled as soon as practicable. Clause 31 operates the same as section 57 of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 32 requires an employer referred to in clause 31 to apply to be recorded as an employer by the Authority within 30 days of receiving a worker's claim for compensation. Penalties apply if an employer fails to comply with this requirement. The requirement that an employer be recorded as an employer under clause 32 aims to assist the Authority with the processing of the worker's claim under the Bill. Clause 32 operates the same as section 58 of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 33 makes clear that Parts 2, 3 and 5 apply in relation to the determination and management of claims against employers who meet the criteria in section 29 or 31. Clause 33 operates the same as section 57(4) of the Accident Compensation Act 1985. Clause 34 gives the Authority discretion to seek reimbursement of the amount of compensation, damages and contribution paid or payable by the Authority from an employer which, at the time of a worker's injury, was the worker's employer but was not registered with the Authority as an employer under clause 434. 32

 


 

The Authority is provided with discretion to serve a notice on the employer requiring the employer to reimburse the Authority for the costs of the injured worker's claim. Claim costs include the amount of compensation, damages and contribution paid or payable by the Authority. The Authority's discretion to seek reimbursement under clause 34 does not extend to an employer which has applied to be recorded as an employer with the Authority under clause 32. Clause 34 also gives the Authority discretion to waive all or part of the liability of an employer to reimburse the Authority for claim costs if the Authority considers that the amount is more than the employer can afford; the employer could not have reasonably expected to consider themselves to be an employer at the time of the worker's injury; or where it would not be commercially feasible for the Authority to pursue recovery of the amount. Clause 34 is intended to ensure that employers are liable for claim costs where they have failed to comply with their obligations under the Bill. The ability of the Authority to seek reimbursement of claim costs is intended to act as a deterrent and encourage employers to comply with their obligations under the Bill by registering with the Authority and paying premium. Clause 34 operates the same as section 61(1), (1A) and (2) of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 35 provides that a person who is served with a notice issued by the Authority seeking reimbursement of claim costs can apply to the Magistrates' Court or County Court for a determination of their liability under the Bill and the Accident Compensation Act 1985. This clause provides a way for a person who is served with a notice issued by the Authority with the means to seek independent confirmation of their liability under the Bill or the Accident Compensation Act 1985. The person is required to make an application within the period specified in the notice served on them by the Authority. If an application to the Magistrates' Court or County Court is not made within the period specified in the notice, the Authority can pursue payment of the claim costs as a debt. 33

 


 

Clause 35 operates the same as section 61(3) and (4) of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 36 gives a worker the ability to apply to the County Court for a declaration that their employer cannot be found, is subject to external administration or meets any of the other criteria in subclause (2). The declaration, if made by the County Court, has the effect of deeming the Authority as the worker's employer for the purposes of determining liability under the Bill, at common law or otherwise. The ability of a worker to seek a declaration provides an opportunity to obtain independent confirmation of what the worker may suspect but does not have independent confirmation of with respect to their employer. It also provides a worker of an employer which meets any of the criteria in subclause (2) with a process that facilitates the claims process. The declaration can form the basis of the worker's claim for compensation and damages at common law in accordance with the Bill. Clause 36 operates the same as section 14 of the Accident Compensation (WorkCover Insurance) Act 1993. Division 3--Entitlement to compensation This Division sets out the various tests for determining whether a worker or a worker's dependants are entitled to compensation under this Bill. Clause 37 governs entitlement to compensation under this Bill for workers who are injured whilst temporarily working in another jurisdiction. The clause establishes that employers are only entitled to compensation under this Bill where their employment is connected with Victoria. It also sets out tests to determine which jurisdiction a worker's employment is connected with. The clause is consistent with the nationally agreed approach and similar provisions have been enacted in other Australian jurisdictions. The approach ensures that employers only need to register in one scheme irrespective of a worker having temporary moved interstate and ensures workers compensation coverage for such workers. 34

 


 

The clause also establish safety net coverage under this Bill, for workers where a worker's employment is not connected with another jurisdiction and the worker is not entitled to compensation under the laws of jurisdiction outside of Australia. This provision is intended to ensure such workers are entitled to fair and just compensation. Additional relevant provisions in relation to determination by courts and recognition of determinations of State with which worker's employment is connected are located in Division 5 of Part 6. Clause 37 is operates the same as section 80 of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring prior to the commencement of this Bill. Clause 38 establishes special rules relating to an injury to a sailor working on a ship where the sailor's employment is connected with Victoria. The Bill applies to such sailors with the modifications set out in this clause. The modifications take account of the practical difficulties of giving notice of injuries and making claims where a worker is at sea for a prolonged amount of time. The modifications also provide that compensation is not payable under the Bill where the owner or charterer of a ship is otherwise liable to pay the relevant expenses of an injured or deceased sailor. This ensures that the worker or their dependants are not entitled to double payments of compensation in relation to same loss or expense. Clause 38 operates the same as section 81 of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring prior to the commencement of this Bill. Clause 39 establishes a threshold test for entitlement to compensation, being that a worker is only entitled to compensation under this Bill if the injury arose out of or in the course of employment. In the case of injury or disease referred to in clauses 40(2) and 40(3), clause 40 additionally requires that the worker's employment must have been a significant contributing factor. In order to satisfy the test for entitlement, it is fundamental that there be a relevant linkage between the worker's injury and their work. 35

 


 

Clause 39(3) provides that an injury will be deemed to have arisen out of or in the course of a worker's employment if it occurs gradually over time and is due to the nature of the employment. The clause makes specific provision for circumstances where it may not otherwise be clear that the injury arose out of or in the course of employment because of its gradual onset but there was exposure in the employment to a risk which may have caused the injury complained of. For example, a musculoskeletal injury which is caused over a number of years. Clause 39(4) confirms that, if clauses 39, 40 or 41 prevent a worker or their dependants from recovering compensation in respect of an injury, they cannot rely on clause 39 to claim to be entitled to take any other action or proceedings in respect of the injury. This is intended to provide certainty for workers and employers as to the extent of their entitlement. This clause operates the same as section 82(1), (2), (6) and (9) of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 40 prevents a worker or a worker's dependants from recovering compensation in specific circumstances, where compensation is not warranted. Clause 40(1) establishes that there is no entitlement to compensation in respect of a mental injury to a worker caused wholly or predominantly by reasonable management action (as defined in the clause) in any one or more of the circumstances set out in section 40(1). The provision reflects the policy intention that such an injury caused by an employer's management action taken on reasonable grounds and in a reasonable manner will not be compensable. The provision does not apply where the relevant management action is unreasonable, however, it is also intended that the test for reasonableness does not require the employer's management action to have been perfect in every sense. For example, where an employer makes minor technical or procedural errors in pursuing management action, this will not necessarily mean the management action will be taken in an unreasonable manner for the purposes of section 40(1). Clause 40(2) and (3) establish that there is no entitlement to compensation in respect of certain injuries or diseases 36

 


 

(including heart attack injuries and stroke injuries) unless the worker's employment was a significant contributing factor to the injury or disease. Heart attack and stroke injuries are defined in section 3. The requirement reflects that these types of injuries are likely to have a broad range of causal factors, which may include but may not be limited to the worker's work. The word "significant", is intended to emphasise that the relevant injury will only be compensable if there is a considerable and strong connection between work and the injury. Clause 40(4) provides that there is no entitlement to compensation in respect of an injury that was deliberately or wilfully self-inflicted. It is intended that a worker should not be entitled to compensation for an injury which they have intentionally caused harm to themselves. Clause 40(5) provides there is no entitlement to compensation if it is proved that an injury to a worker is attributable to the worker's serious and wilful misconduct. The term "serious and wilful misconduct" remains undefined and the application of this provision will be a question of fact. Serious and wilful misconduct may include criminal activity or lawful activity. The provision makes it clear that misconduct includes, but is not limited to, being under the influence of intoxicating liquor or an illicit drug. By way of another example, involvement in a fight may amount to serious and wilful misconduct. The provision may be applied for the purposes of physical injuries and mental injuries. The exclusion does not apply if the injury results in death or severe injury (as defined in the clause). Clause 40(7) defines the terms management action, permanent blindness and severe injury for the purposes of this clause and the drink and drug driving provisions in clauses 42, 43 and 44. The definition of management action includes a broad range of actions which may constitute reasonable management action for the purposes of the stress exclusion. The definition includes appraisal of a worker's performance, counselling of a worker, disciplinary action taken in respect of a worker's employment, and dismissal of a worker. The broad definition reflects that it is necessary that employers have flexibility to take a range of reasonable actions to manage their workforce. The list of actions is not intended to be an exhaustive list. 37

 


 

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, including permanent blindness which is also defined. The definitions are consistent with those contained in the Transport Accident Act 1986 and the Transport Accident Regulations 2007. This clause operates the same as section 82(2A)(2B)(2C)(3)(4)(5) and (10) of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 41 makes clear that a worker will not be entitled to compensation for a deterioration of a pre-existing injury or disease where the worker fails to disclose such an injury or disease prior to commencing employment despite the employer following the detailed process to discover such injuries set out in this clause. The disclosure of pre-existing injuries enables an employer to plan and to put measures in place to protect the worker from a deterioration of an injury. It is intended that an employer should not be held liable where they have properly followed the prescribed process under this clause and the worker has failed to report their pre-existing injuries. This clause operates the same as section 82(7) and (8), which will continue to apply in respect of injuries occurring before 1 July 2014. Clauses 42 provides for a reduction of compensation in the form of weekly payments where a worker is injured while driving with any concentration of alcohol in their blood or breath in contravention of the Road Safety Act 1986 or the Crimes Act 1958. Clause 42(1) recognises that, under the Road Safety Act 1986, certain types of 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. The clause is intended to support and operate consistently with the Road Safety Act 1986 for the purposes of promoting safe and responsible road use. The provision does not apply in specified circumstances, including where the injury results in death or is a severe injury within the meaning of clause 40. This reflects the policy intention that a worker or their dependants should be entitled to compensation in such circumstances. 38

 


 

Clause 42 operates the same as section 82A of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 43 provides that compensation in the form of weekly payments will be reduced where a worker is injured while driving with any concentration of a prescribed illicit drug in contravention of the Road Safety Act 1986 and the Crimes Act 1958. It is intended to support the Road Safety Act 1986 for the purposes of promoting safe and responsible road use. The provision does not apply in certain circumstances, including where the injury results in death or is a severe injury within the meaning of clause 40. This reflects the policy intention that a worker or their dependants should be entitled to compensation in such circumstances. Clause 43 operates the same as section 82B of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 44 makes clear that a worker does not have an entitlement to compensation where the injury was attributable to his or her commission of certain serious drink-driving, or drug-driving, related offences under the Road Safety Act 1986 or Crimes Act 1958. It is intended to support and operate consistently the Road Safety Act 1986 for the purposes of promoting safe and responsible road use. The preclusion from receiving any compensation under the Bill reflects the serious nature of the relevant road traffic offences specified in section 44. The provision does not apply in certain circumstances, including where the injury results in death or is a severe injury within the meaning of clause 40. This reflects the policy intention that a worker or their dependants should be entitled to compensation in such circumstances. Clause 44 operates the same as section 82C of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 45 establishes that if clause 42, 43 or 44 is applied to a worker's entitlement to compensation on the grounds of a conviction and that conviction is later overturned on appeal, the Authority or a self-insurer must pay the worker the compensation payments he 39

 


 

or she would have been entitled to had the initial conviction not been made, plus interest. This clause operates the same as section 82D of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 46 deems certain injuries to have arisen out of or in the course of employment, for the purposes of clause 39, if the injury occurred in specified circumstances when the worker is not at their place of employment. For example, where the worker is travelling for the purposes of their employment. The clause is intended to provide certainty for workers and employers as to entitlement. The clause explicitly specifies that a worker is not travelling for the purposes of their employment where they are travelling to or from their workplace, or where they substantially deviate from their work travels for reasons unconnected with their employment. In these circumstances the linkage between the relevant injury and the worker's work is not considered to be sufficiently strong to justify an entitlement to compensation under the Bill. This clause operates the same as section 83 of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 47 provides that a worker or the dependants will be entitled to compensation under this Bill where their injury occurs while they are outside of Australian but they are working for a Victorian employer and would otherwise be entitled to compensation under this Bill. This is intended to ensure that such workers and their dependants are entitled to compensation in these circumstances. The clause only operates if the worker is engaged in Victoria and does not operate if the worker has never resided in Australia or has ceased to reside in Australia. This reflects the policy intention that that compensation should only be payable under this Bill where there is a connection between the worker and the state of Victoria. 40

 


 

This clause operates the same as section 84 of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 48 provides that a person is not entitled to compensation under this Bill if the person has already received compensation for that injury under the laws of another jurisdiction. If a person receives compensation under this Bill and later receives compensation under the laws of another jurisdiction for the injury, the person who pays the compensation under the Bill may sue the worker to recover the amount that is specified. It is intended that the worker should not receive a double payment of compensation in relation to the same loss or expense. This clause operates the same as section 84B of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 49 provides that a worker is not entitled to compensation if they have previously been awarded damages for that injury under the laws of another state or jurisdiction. The provision also operates where a worker has an action for damages on foot under the law of another state. Whilst such action is pending a worker is not entitled to claim compensation under the Bill. If a person does receive compensation under the Bill and subsequently also recovers damages in respect of the injury under the laws of another jurisdiction, the Authority, employer or self-insurer may sue the worker to recover a specified amount from them. It is intended that the worker should not receive a double payment of compensation in relation to the same loss or expense. This clause operates the same as section 85 of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 50 establishes that a worker or their dependants will be entitled to compensation for a disease which is due to the nature of their employment. The clause also specifies that the test for determining whether a disease is due to the nature of a worker's employment is whether the nature of the employment gave rise to a "significantly greater risk" of the worker contracting the disease than had the worker not been employed in employment of that nature. This test requires consideration of the risks to which a worker was exposed by the nature of employment, 41

 


 

including the work process and the characteristics of the worker's employment. The clause is intended to provide certainty for workers and employers as to entitlement. Clause 50(3) confirms that, in all cases, compensation is not payable in respect of a heart attack injury or a stroke injury unless the worker's employment was a significant contributing factor. This restriction is consistent with the entitlement test set out in section 40(3) of this Bill. This clause operates the same as section 86 of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 51 establishes a presumptive entitlement to compensation where a worker has been employed at any place or in any process or occupation and contracts a disease, which has been proclaimed under this clause in relation to that place, process or occupation. It is intended that diseases should be proclaimed where there is a causal connection between the relevant place, process or occupation and the disease. The presumptive entitlement under this clause is intended to provide certainty for workers and employers as to entitlement. It also ensures that such claims can be processed more efficiently. This clause operates the same as section 87 of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Division 4--Assessment of impairment Division 4 of Part 2 sets out various rules and procedures which assessors must follow when conducting assessments of a worker's degree of impairment under this Division. An assessment of a worker's degree of impairment may inform whether a worker meets the minimum thresholds under Division 5 of Part 5 and is therefore entitled to compensation for non economic loss. It may inform the calculation of compensation under that Division. It may also inform whether a worker is deemed to have a serious injury and is therefore entitled to bring a common law action for damages under Part 7 of the Bill. The rules and procedures set out in this Division are intended to ensure that assessments of impairments are conducted in a manner which is consistent and which produces consistent outcomes; and that the assessments accurately and fairly assess a worker's level of impairment. 42

 


 

Subdivision 1--Preliminary Clause 52 defines the terms compensation law, further injury, prior hearing loss and prior injury for the purposes of this Division. This clause operates the same as section 89(1) of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 53 establishes specific rules relating to impairment assessments for the purposes of Division 5 of Part 5 and Division 2 of Part 7. The rules relate to impairment assessments for injuries arising out of the same incident or on the same date, and injuries which occurred on different dates. The provisions establish methods for assessing impairment from such injuries. Clause 53(1) provides that for the purpose of Division 5 of Part 5, impairments, other than psychiatric impairments, which result from injuries arising out of the same incident or on the same date, must be assessed together. This ensures that the worker's entitlement to compensation for non-economic loss in relation to those impairments can be calculated together under Division 5 of Part 5. The requirement does not apply to psychiatric impairments, as compensation for these impairments is assessed separately under Division 5 of Part 5. The clause also provides that assessments must specify the whole person values for each chapter of the AMA Guides which are used in the assessment. Under Division 5 of Part 5 and Schedule 3, certain impairments must be modified therefore it is necessary to specify the impairment assessment in relation to each impairment. Clause 53(2) provides that, for the purposes of Division 5 of Part 5 and Part 7, impairments resulting from injuries which occurred on different dates are to be assessed chronologically. This ensures that the Authority or a self-insurer can accurately identify and calculate an entitlement for the injuries that arose as a result of the specific event or circumstances which is the subject of the claim. The clause also specifies that impairments from unrelated injuries or causes are to be disregarded in making an assessment. This is intended to ensure that compensation is only payable under Division 5 of Part 5 and Part 7 in relation to impairments resulting from the relevant injury. 43

 


 

This clause operates the same as section 91(7) and (7A) of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Subdivision 2--Assessment in accordance with A.M.A guides Clause 54 establishes that the assessment of a degree of impairment in accordance with Division 4 of Part 2 of the Bill will be made in accordance with the A.M.A Guides. The A.M.A Guides are intended to provide a fair and accurate frame work, which an assessor may use to evaluate a worker's degree of impairment. The guides also ensure that assessments of a worker's degree of impairments conducted in a manner which is consistent. The clause establishes a number of rules and modifications for the purposes of applying the A.M.A Guides; and the assessment of impairment under the Bill must be in accordance with those rules and modifications. The provisions empower the Minister to approve a training course in the application of the Guides or methods for applying the A.M.A Guides. Courses and methods approved under this clause are intended to ensure that the A.M.A Guides are applied consistently; and to provide clarity for the assessors. The provision also establishes that the A.M.A Guides may be modified by regulations made under this Bill. This allows for the amendment of the A.M.A Guides to address emerging issues for which the guides do not currently provide. This clause operates the same as section 91(1), (1B), (7B), (7C), (9) and (10) of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 55 requires that an assessment of the degree of permanent impairment of a worker be made after the injury has stabilised and take into account changes in the signs and symptoms of the worker's injury following any medical or surgical treatment that the worker has undergone. This clause operates the same as section 91(1A) of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. 44

 


 

Section 56 establishes that in assessing the degree of impairment under Division 4 of Part 2, regard must not be had to any secondary psychiatric or psychological injury or impairment that arises as a consequence of a physical injury. It is intended that a psychiatric or psychological impairment should not be included in the impairment assessment unless a direct causal link can be demonstrated between that element and the event or circumstances in the workplace that gave rise to the injury. This clause operates the same as section 91(2) of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Subdivision 3--Industrial deafness Clause 57 requires that compensation for industrial deafness must be determined in accordance with the rules in this Division and Divisions 2, 3, 4, 5 and 7 of Part 5 in relation to weekly payments, non-economic loss and medical and like expenses. This clause operates the same as section 88(2) of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 58 requires that industrial deafness which has occurred in circumstances which do not create any liability to pay compensation under this Bill must be excluded from the assessment of deafness for the purposes of assessing the degree of impairment from diminution of hearing and calculating compensation under the Bill. This ensures that industrial deafness that is not compensable under the Bill is not included in the assessment of impairment or the calculation of impairment benefits despite the deeming rule in clause 60(1) of the Bill. For example, this provision may apply where a worker sustained pre-existing industrial deafness from past employment in another country, then sustained further compensable industrial deafness arising out of employment in Victoria. In these circumstances, the pre-existing industrial deafness occurred in circumstances which do not create any liability to pay compensation under this Bill and should therefore be excluded from the assessment of impairment and the calculation of compensation in accordance with section 58. 45

 


 

It is intended that that non compensable hearing loss should only be excluded for the purposes of calculating compensation under clause 58(2) if it has not already been excluded at the time the assessment is made under clause 58(1). This clause operates the same as sections 88(1) and 91(3AAA) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 59 establishes the rule that, unless the Authority, a self-insurer, a Medical Panel or a court determines otherwise, industrial deafness is deemed to have occurred at a constant rate within the total number of years of exposure to industrial noise in employment. This ensures that, where a level of industrial deafness is to be excluded under clause 58, the level can be determined. The deeming rule is intended to provide certainty for workers and employers in relation to the rate at which industrial hearing loss has occurred over a period of time. It is required due to the inherent difficulty in determining the rate at which industrial hearing loss has occurred. This clause operates the same as sections 88(3) and 91(3AAB) combined of the Accident Compensation Act 1985. Sections 88(3) and 91(3AAB) will continue to apply in respect of injuries occurring before 1 July 2014. Clause 60 establishes a deemed date of injury for industrial deafness. The date of injury is the last day of a worker's employment out of or in the course of which the industrial deafness arose, or the date of the claim for compensation if the worker is still employed in that employment. The deeming rule is intended to provide certainty for workers and employers in relation to the date of injury for industrial deafness. This is required due to the inherent difficulty in determining a date of injury for industrial deafness. The deeming rule is consistent with clause 215 which provides for a deemed date of injury for gradual process injuries other than industrial deafness for the purposes of Division 5 of Part 5. This clause is intended to have the same operation as sections 88(4) and (5) of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. 46

 


 

Clause 61 entitles a worker to receive compensation for non-economic loss, in accordance with clause 213, for further diminution of hearing. The clause also ensures that a worker is not entitled to receive a double payment of compensation for a further diminution of hearing and a prior hearing loss for which they have already been compensated. Where a prior injury or a prior hearing loss has already been compensated at an earlier date, the further diminution of hearing will be compensated by reference to the difference between the earlier percentage diminution of hearing loss and the latter percentage diminution of hearing loss. The rule ensures that workers are entitled to receive fair and just compensation for further diminution of hearing loss. Clause 61(3) establishes that a worker is not entitled to compensation for further diminution of hearing loss unless the worker has a total diminution of hearing of at least 10%. This is considered to be an appropriate threshold for workers to be entitled to recover non-economic loss compensation for hearing impairment. Clause 61(4) provides that the earlier percentage of hearing loss should be determined by reference to the percentage which has been determined earlier or an estimate as to the percentage which would have been determined earlier. The clause allows for an estimate of the percentage to provide for circumstances where the earlier percentages of hearing loss were not assessed when compensation was previously paid. This may be the case where the compensation was paid prior to any legislated requirement to undergo an impairment assessment. If a worker disputes the determination of their earlier percentage of hearing loss, the question must be referred to a Medical Panel for an opinion. Disputes regarding assessment of impairment are referred to the Medical Panel as they relate strictly to medical questions and are appropriately dealt with by medical specialists. This clause operates the same as sections 89 of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. 47

 


 

Clause 62 Clause 62(1) makes clear that a determination for compensation for industrial deafness which is not reviewed is final if it is accepted by the worker. This means that that the question of the worker's degree of industrial deafness cannot be revisited, which is intended to provide certainty of outcome for the worker and the employer. Clause 62(2) establishes that the determination for payment of compensation for industrial deafness must state the percentage of diminution of the workers hearing at the date of the determination. Clause 62(3) establishes that a determination for compensation for industrial deafness fully extinguishes all rights of the worker to compensation for industrial deafness under this Bill, the Accident Compensation Act 1985 or the Workers Compensation Act 1958 up to the date of the determination. This ensures that a worker is not entitled to receive double payments of compensation in relation to the same loss or expense. Clauses 62(4) and (5) specify that the Authority must be advised of any determination and that the Authority must keep a register of determinations. This clause operates the same as section 90 of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 63 establishes rules for the purposes of assessing the degree of impairment of the whole person resulting from diminution of hearing. Clause 63(1) provides that where the diminution of hearing is assessed as less than 10% NAL then the degree of impairment is converted to zero. This is intended to be an appropriate threshold for workers to be entitled to recover non-economic loss compensation for hearing impairment. Clause 63(2) establishes that the diminution of hearing must be assessed in accordance with the Improved Procedure for Determination of Percentage Loss of Hearing (1988 Edition or a later prescribed edition) published by the National Acoustic Laboratory (NAL) with modifications as set out in section 63. These procedures provide a fair and accurate framework for an assessor to use to evaluate a worker's diminution of hearing. 48

 


 

The procedures also ensure that assessments relating to diminution of hearing are conducted in a manner which is consistent. Clause 63(3) provides that diminution of hearing must be assessed as binaural loss of hearing. It must also be assessed and determined by a person or class of persons approved by the Minister, and in the manner approved by the Minister. This clause operates the same as sections 91(3), (3AA), (3A), (4) and (5) of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Subdivision 4--Assessment of psychiatric, asthma and infectious disease impairment Clause 64 establishes that, for the purposes of assessing the degree of psychiatric impairment, the A.M.A Guides apply (subject to any regulations made) as if Chapter 14 of the Guides was substituted by the guidelines known as "The Guide to the Evaluation of Psychiatric Impairment for Clinicians". Those guidelines were authored by independent medical specialists (incorporating recommendations from Medical Panels and others) in order to address particular issues in assessing psychiatric impairment; and were published in the Government Gazette in July 2006. It is considered that they provide a fairer and more equitable means of assessing the degree of psychiatric impairment than the chapters they replace in the A.M.A guides. This clause operates the same as sections 91(6) of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 65 establishes that, for the purposes of assessing the degree of occupational asthma, the A.M.A Guides apply (subject to any regulations made) as if Chapter 5, Tables 8 and 10 of those guides were substituted by the guidelines known as "Impairment Assessment in Workers with Occupational Asthma". Occupational asthma has the same meaning as given in the guidelines. These guidelines were authored by independent medical specialists (incorporating recommendations from the Medical Panels and others) in order to address particular issues in assessing occupational asthma 49

 


 

impairment; and were published in the Government Gazette in July 2006. It is considered that they provide a more fair and equitable means of assessing the degree of occupational asthma than the chapters they replace in the A.M.A guides. This clause operates the same as sections 91(6A) of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 66 establishes that, for the purposes of assessing the degree of impairment from infectious occupational disease, the A.M.A Guides apply, subject to any regulations and the guidelines known as the "Clinical Guidelines to the Rating of Impairments arising from Infectious Occupational Diseases". Infectious occupational disease has the same meaning as given in those guidelines. Those guidelines were authored by independent medical specialists (incorporating recommendations from the Medical Panels and others) in order to address particular issues in assessing infectious occupational diseases impairment; and were published in the Government Gazette in July 2006 . It is considered that they provide a more fairer and equitable means of assessing the degree of infectious occupational diseases impairment than the chapters they replace in the A.M.A guides. This clause operates the same as section 91(6B) of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Clause 67 provides that the guidelines referred to in sections 64, 65 or 66 published in the Government Gazette in July 2006 will remain in force for the purposes of the Bill. The provision also allows for the guidelines to be amended or substituted by the Authority with the approval of the Minister. Any amendment or substitution must be published in the Government Gazette. This clause operates the same as sections 91(6C) of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. Subdivision 5--Assessment of spinal impairment Clause 68 requires that assessments of spinal impairments must specify the whole person values derived in accordance with section 3.3 of Chapter 3 of the A.M.A Guides. 50

 


 

This clause operates the same as sections 91(7AA) of the Accident Compensation Act 1985, which will continue to apply in respect of injuries occurring before 1 July 2014. PART 3--CLAIMS FOR COMPENSATION Division 1--Preliminary This division contains definitions of terms which apply for the purposes of this Part. Clause 69 defines the terms claimed employer and lodged objection for the purposes of this Part. The terms serve to clarify who is a claimed employer and what is a lodged objection for the purposes of the employer objection process under Division 4. The definitions in this clause operate the same as the equivalent definitions in section 114H of the Accident Compensation Act 1985. The definition of proceedings in section 114H is provided for under clause 618, Supreme Court--limitation of jurisdiction--no proceedings as it is relevant to other Parts of the Bill as well as Part 3. Division 2--Liability and indemnity This division sets out some of the key features of the WorkCover insurance scheme, including that the Authority and the employer are liable to pay compensation; that the Authority will indemnify insured employers for some of their liability; and that the employer will be subject to an employer excess. Clause 70 Clause 70(1) establishes that the employer and the Authority are both directly liable to a worker or the dependants of a worker to pay compensation and damages for compensable injuries under the Bill. The employer is indemnified by the Authority in relation to some of their liability. This clause operates in conjunction with clause 435 of this Bill, which provides that all employers have a statutory contract of insurance with the Authority and sets out the obligations and liabilities which flow from that; and clause 34, which allows the Authority to recover costs in respect of a worker's claim from an employer which is not registered when it ought to be. 51

 


 

Clause 70(2) provides that the Authority is bound by any legal decisions which the employer is bound by in relation to an injury. This reflects the fact that the Authority is directly liable to pay compensation or damages for compensable injuries under the Bill. This clause operates the same as terms which are currently found in an employer's individual WorkCover Insurance Policy, as required by section 9 of the Accident Compensation (WorkCover) Insurance Act 1993. A number of changes have been introduced into this Bill to establish a statutory policy of insurance which replaces individual insurance policies. For further information about the statutory contract of insurance see the Explanatory Memorandum notes on Part 10--Premiums and Registration of Employers. Clause 71 establishes that an employer who is subject to the statutory contract of insurance is entitled to be indemnified by the Authority, in respect of the employer's liability to pay compensation, damages and contribution. This is justified on the grounds that the Authority is the statutory insurer of the employer. However, the entitlement does not extend to compensation or damages which fall within the employer's excess under clause 72; or to liability imposed on an employer under clause 576 or 578 in relation to a breach of a requirement under the Act. The purpose of such liability is to penalise the employer for its breach and this purpose would be defeated if the employer was indemnified for it. Clause 71(2) makes clear that an employer's indemnity does not extend to the liability of an employer to pay compensation under provisions of the Sentencing Act 1991. Such liability and compensation falls outside the intended scope of this Bill. Clause 71(3) prohibits an employer from taking actions relating to the payment of compensation unless in accordance with the Bill or with the consent of the Authority. Clause 71(4) provides the Authority with the ability to assume an employer's rights of action or recovery in relation to an injury. This reflects the fact that the Authority is directly liable to pay compensation or damages for compensable injuries under the Bill. 52

 


 

This clause operates the same as sections 7(1)(a) and 9(2A) of the Accident Compensation (WorkCover Insurance) Act 1993 and as terms which are currently found in an employer's individual WorkCover Insurance Policy, but reflects changes necessary to establish a statutory policy of insurance in place of an individual insurance policy. For further information about the statutory contract of insurance see the Explanatory Memorandum notes on Part 10--Premiums and Registration of Employers. Clause 72 provides that an employer's indemnification from the Authority is subject to an employer excess, being the cost of the first 10 days of weekly benefits and the first (annually indexed) dollar amount of reasonable medical and like expenses. This ensures that the costs of a Workcover claim are shared between the employer and the Authority, which helps to keep WorkCover insurance premiums lower for all employers. The excess also encourages good practice by the employer in relation to health and safety and return to work, due to the fact that the employer will be subject to immediate financial implications in the event of a claim. Subclause 72(3) provides that an employer's payments of compensation, which fall within the employer's excess, will not prejudice the determination of liability. This ensures that employers are not discouraged from making payments of compensation to an injured worker on the basis that such payments could potentially be relied upon as evidence of liability. Subclause 72(4) provides that an employer is not liable to bear the cost of the excess and may seek reimbursement from the Authority for any amounts already paid if the Authority sets aside a decision to accept liability. This ensures that an employer will not bear the excess where they are ultimately found not to be liable in relation to the claim. Under clause 72(6), an employer may elect to reduce or eliminate the employer excess by paying an adjusted premium under Division 10. This may only be done in accordance with the premiums order made under clause 488 of this Bill and guidelines made by the Authority under this clause. This option provides flexibility for employers. 53

 


 

This clause operates the same as section 125A of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. The content of section 125A(1) of the Accident Compensation Act 1985 is not contained in the Bill as it only applies in relation to injuries occurring prior to 4 p.m. 30 June 1993. Division 3--Claims management--General This division establishes the procedure, by which a claim must be forwarded to the Authority and accepted or rejected by the Authority. Clause 73 requires an employer to forward claims for compensation and medical certificates to the Authority within specified timeframes. This requirement is integral to the claims lodgement process, whereby an injured worker gives or serves a claim for compensation or a medical certificate on the employer, under clause 20, and the employer then forwards the document to the Authority under this clause. It is intended that involving the employer in the claims lodgement process will facilitate interactions between the worker and the employer and will have positive implications for the worker's return to work prospects. A worker may lodge a claim directly on the Authority in limited circumstances under Division 2 of Part 2. Penalties and other consequences apply if an employer fails to forward a claim without reasonable cause. This is intended to discourage undue delays in the claims lodgement process which might disadvantage the worker. The penalties are consistent with the penalty scale in the Sentencing Act 1991. The responsibilities do not apply to self-insurers, as self- insurers receive and process their own claims. This clause re-enacts section 108 of the Accident Compensation Act 1985. Clause 74 establishes that the Minister has the power to make guidelines specifying the manner in which a claim for compensation may be forwarded to the Authority. For example, whether the claim may be forwarded by mail and how it may be forwarded by mail. This clause operates the same as section 103(4C)(b) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. 54

 


 

The content of subsection 103(4D) of the Accident Compensation Act 1985, is now provided for in clause 611 in this Bill which specifies how all Ministerial Guidelines under this Bill should be made. Clause 75 requires the Authority or a self-insurer to provide the worker with a written decision accepting or rejecting a claim for weekly payments within specified timeframes. If the Authority or self- insurer does not do so the claim will be deemed to be accepted. The clause ensures that decisions regarding liability are made in a timely manner and that, in the event that the Authority or self-insurer fails to make a decision, the worker will not be disadvantaged. Clause 75(2) specifies that the Authority or a self-insurer must provide the worker with a written decision accepting or rejecting a claim for medical and like expenses within a specified timeframe. The clause ensures that decisions regarding liability are made in a timely manner. Clause 75(3) provides that a notice of a decision to reject a claim for weekly payments or medical and like expenses must include a statement of the reasons for the decision. The provision of reasons is required in the interests of transparency and procedural fairness. It may help a worker to make an informed decision as to whether they have grounds to dispute the decision. Clause 75(7) confirms that the Authority of self-insurer's decision is binding on the employer. This reflects the fact that the Authority is directly liable for paying compensation and therefore should have final say as to whether compensation is payable. This clause re-enacts section 109 of the Accident Compensation Act 1985. Clause 76 specifies that any notice to a worker or claimant under this Bill which communicates a decision must stipulate any rights which the worker has to seek conciliation or review of the decision. The clause ensures transparency, so that a worker is clearly informed about what rights they have in relation to conciliation or review. 55

 


 

This operates the same as section 123A of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Division 4--Claims management--Employer objection This division establishes a process by which employers can request reasons in relation to the Authority's decision, object to the decision and, in specified circumstances, set in motion a review process. In this Bill, these provisions have been grouped together and ordered to reflect the chronology of the claims management workflow. Clause 77 contains a flowchart which sets out the employer objection process. The clause is not intended to have any legal force or application. Its sole purpose is to aid the reader in understanding the process. Clause 13 provides that a flow chart does not form part of this Bill; and is not intended to have any legal status. Clause 78 establishes that an employer has the right to seek written reasons from the Authority as to why a claim has been accepted or rejected. The right only applies in relation to the initial decision to accept or reject liability for the claim and not to subsequent determinations about particular benefits to which the worker is entitled. This right provides accountability and transparency in relation to the Authority's decision to accept or reject a claim. It also ensures procedural fairness for employers who may be adversely impacted by a decision to accept or reject a claim. No proceedings may be brought against the Authority in respect of any question or matter arising under this clause. The Bill provides other avenues for review of decisions of the Authority to accept or reject claims under this Division. The clause operates the same as section 109AA of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. The definition of employer in section 109AA(3) has been omitted from the clause. The definition is unnecessary, as it gives the term its ordinary meaning. The definition of proceedings in section 109AA(3) is provided for under clause 618, Supreme Court-- limitation of jurisdiction--no proceedings, as it is relevant to other Parts of the Bill as well as Part 3. 56

 


 

Clause 79 provides an avenue for employers to object to a decision by initiating a review. An objection may only be lodged on the grounds that the alleged worker is not a worker or the claimed employer was not the employer. Objections on these grounds are allowed because they are fundamental to the issue of liability and can be expeditiously and objectively reviewed by the Authority. The clause also sets out the substantive and procedural requirements of an objection, including time frames for making an objection. The clause makes clear that lodgement of an objection will not affect an employer's continuing obligations to the worker under this Bill while the review is pending. This ensures that the worker is not disadvantaged while the review is in process. The worker will only be affected by the review if it is completed and the liability decision is overturned. This clause re-enacts section 114I of the Accident Compensation Act 1985. Clause 80 confers a discretion on the Authority to accept objections which are lodged out of time. This ensures that Authority may still accept late objections where it sees fit. The Authority's decision to not accept late lodgements is not reviewable. This provides certainty for employers and workers. This clause re-enacts section 114J of the Accident Compensation Act 1985. Clause 81 gives the Authority a discretion to decline to conduct a review if the matter has previously been reviewed or the objection is misconceived or without substance. This ensures that the Authority is not automatically bound to conduct a review in circumstances where it will clearly fail. The Authority must notify the claimed employer that it declines to conduct a review, which ensures they are aware of this. This clause re-enacts section 114K of the Accident Compensation Act 1985. 57

 


 

Clause 82 provides that the employer may withdraw their lodged objection at any time prior to the Authority making a decision under clause 84. This ensures that the review process in not required to continue where the employer changes their mind and no longer wishes it to continue. This clause re-enacts section 114L of the Accident Compensation Act 1985. Clause 83 establishes that the Authority may request that the employer provide information relevant to the review; and that the Authority may suspend the review if the employer fails to provide the information by issuing a suspension notice to the employer. If the employer's failure to provide the information by the date specified in the suspension notice, the objection is deemed to have been withdrawn and the employer may be barred from re-lodging the objection. The clause is intended to provide a means by which the Authority may seek additional information from an employer to assist it in determining the review. The Authority's discretion to suspend the review, and the subsequent consequences if the information is still not provided, are intended to encourage the employer to provide the requested information and to ensure that the review can be resolved in a timely manner. This clause re-enacts section 114M of the Accident Compensation Act 1985. Subclauses 83(1) and (2) expressly set out the procedure by which information may be requested by the Authority and by which the review may suspended if the information is not forthcoming. These changes are consistent with current practice. They have been introduced to provide certainty for the Authority and for claimed employers about how this procedure operates. Clause 84 provides that the Authority must conclude a review and give written notice of its decision, either confirming or overturning its original decision, within a specified timeframe. If the Authority does not do so, the decision will be deemed to be confirmed. The clause ensures that reviews are concluded and decisions are made in a timely manner. It also ensures that, in the event that the Authority fails to conclude the review and make a decision, the worker will not be disadvantaged. In the event that a decision is confirmed or deemed to be confirmed, 58

 


 

the Employer may appeal the decision under clause 85 of this Bill. Clause 84(4) provides that where the Authority overturns its original decision, it must give a worker written notice within a specified timeframe before ceasing to make payments to the worker. This provides procedural fairness, transparency and accountability in relation to the Authority's decision. It also provides the worker with an opportunity to make financial arrangements in preparation for the cessation of payments. Clauses 84(5) provides that where the Authority overturns its original decision and the worker makes a new claim against a different employer in respect of the same injury, the worker's entitlement periods under this Bill will be calculated to have commenced on the date the first claim was originally accepted. This ensures that workers are entitled to fair and equitable compensation under the Bill. This clause re-enacts section 114N of the Accident Compensation Act 1985. Clause 85 allows an employer who is not satisfied with the Authority's decision under clauses 81 or 84 (including a deemed decision) to appeal the decision to the Supreme Court. The appeal must be made within 60 days of the date on which the employer receives Authority's decision. It ensures that the Authority's decision can be re-evaluated by the Supreme Court. This clause re-enacts section 114O of the Accident Compensation Act 1985. Clause 86 limits the grounds on which the employer and the Authority may appeal to the Supreme Court. The employer is only permitted to rely on the grounds which they originally relied upon when they lodged their objection under clause 79. The Authority is only permitted to rely on the grounds which they relied upon when they made their decision under clause 84. These limitations are intended to ensure that the Supreme Court is only concerned with reviewing the correctness of the Authority's decision on review and is not asked to consider other matters which were not addressed as part of that decision. The limitations may be overruled at the discretion of the Supreme Court. 59

 


 

This clause re-enacts section 114P of the Accident Compensation Act 1985. Clause 87 specifies that, on appeal, the Supreme Court, may make any order it thinks fit, including to confirm or vary the decision of the Authority on review. Where the Supreme Court overturns the Authority's original decision to accept a claim, the Authority must give a worker written notice within a specified timeframe before ceasing to make payments to the worker. This provides the worker with an opportunity to make financial arrangements in preparation for the cessation of payments. This clause re-enacts section 114Q of the Accident Compensation Act 1985. Clause 88 specifies that where the worker is joined as a party to the proceedings under clause 85, the Authority is liable for the worker's reasonable costs as a result of the worker being joined to the proceedings. The clause is intended to ensure that the worker is not unduly disadvantaged by the appeal process. This clause re-enacts section 114R of the Accident Compensation Act 1985. Clause 89 governs the respective rights of the worker and the employer following a decision by the Authority to set aside its earlier decision to accept the claim. The clause allows a worker to commence a dispute resolution process under Part 6, which is consistent with their right to commence this process if the claim had been rejected at first instance. However, the worker is not entitled to lodge another claim in relation to the same employer. This is because, in these circumstances, the claim has been overturned on the grounds that the alleged worker is not a worker or the claimed employer was not the employer. The employer is not entitled to recover any employer excess compensation payments, paid in accordance with clause 72, where its objection is successful. This reflects the intention that a worker should be able to rely on these payments at the time they are paid and should not be subject to a risk that those payments might be recovered later on if a decision to accept liability is overturned following a review under this Part. 60

 


 

This clause re-enacts section 114S of the Accident Compensation Act 1985. Clause 90 enables the Authority and self-insurers to recover amounts which they have paid to a person who was not entitled to that payment. This includes compensation payments which have been made as a result of false or misleading statements or omissions. The Authority may also recover any penalties or costs which it has incurred as a result of an employer's failure to pay compensation as required by the Bill. This clause re-enacts section 114F of the Accident Compensation Act 1985. Division 5--Liability for payment of compensation This Division establishes that the employer is liable for payment of compensation and where the employer does not meet their liability the Authority will be liable instead. The division also addresses other related issues, including late payments of compensation by the employer, Authority or self-insurer; and instances where payment of compensation is delayed because the Magistrates' Court or County Court is delayed in determining the amount of compensation due. Clause 91 specifies that Division 5 only applies to self-insurers in relation to the employment of student workers. Under clause 1 of Schedule 1, for the purposes of the Bill, student workers are deemed to be employed by the Department of Education and Early Childhood Development. Therefore a student worker employed by a self-insurer is covered directly by the WorkCover scheme rather by the self-insurer. This clause operates the same as section 124 of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 92 establishes that any liability to pay compensation under the Act is to be assumed by the employer. The employer is able to seek reimbursement of weekly payments from the Authority under clause 179, less any employer excess under clause 72. It is intended that this will facilitate interactions between the worker and the employer and will have positive implications for the worker's return to work prospects. 61

 


 

This clause operates the same as section 125A(2) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 93 ensures that a worker will be paid compensation by the Authority if the worker's employer does not pay the employee excess compensation payments they are required to pay under clause 72. The clause also provides for the Authority to impose and recover a penalty from the employer in these circumstances. The clause ensures that a worker is not disadvantaged by a failure by their employer to pay them the compensation payments to which they are entitled. This clause operates the same as section 127 of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 94 allows the Magistrates' Court or the County Court to increase the amount of compensation due to a worker, if the court finds that the employer or the Authority or self-insurer is responsible for any unreasonable delay. The clause is intended to discourage undue delays on the part of the employer or the Authority or self-insurer. The increase in compensation also operates to compensate the worker for any adverse impact caused by the delay. This clause operates the same as section 128 of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 95 allows the Magistrates' Court or the County Court to award interim payments to the worker where the court considers that there may be a delay in determining the full amount of weekly payments due to the worker. The purpose of these interim payments is to tide the worker over until the Court is able to determine and award the full amount. This clause operates the same as section 128A of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. 62

 


 

PART 4--RETURN TO WORK Division 1--Preliminary This Division re-enacts Division 1 of Part VIIB of the Accident Compensation Act 1985 and will apply to all matters relating to return to work on and from 1 July 2014, including any return to work procedures which are in progress under the Accident Compensation Act 1985. The division sets out various preliminary matters which aide in the interpretation of the following Divisions of Part 4. Clause 96 defines, for the purposes of Part 4, the terms compliance code, employment obligation period, host, inspector, labour hire employer, proceeding policy period, pre-injury employment, representative, Return to Work improvement notice, treating health practitioner and workplace. The defined term employment obligation period refers to the period of time during which an employer has an obligation to provide a worker with suitable or pre-injury employment under clause 103. This definition specifies that the employment obligation period runs for a period of 52 weeks. It is intended that this amount of time provides a worker with a reasonable opportunity to return to work following their injury. The employment obligation period is limited to 52 weeks in order to balance an employer's competing need for commercial certainty. The employment obligation period runs for an aggregate period of 52 weeks, whether or not consecutive, meaning that it may stop running down in specific circumstances and then commence running down again when those circumstances no longer exist. This definition provides that the employment obligation period stops running down during any period where the worker has no incapacity for work resulting from their injury. It commences running down again if their fitness deteriorates and they have an incapacity for work again. This reflects that a worker's recovery may involve set backs over time and is intended to ensure that the worker is provided with a reasonable opportunity to return to work following their injury where this is the case. Section 103, specifies a number of additional circumstances where the obligation period will also stop running down. This definition re-enacts the equivalent definition in section 194(1) of the Accident Compensation Act 1985. 63

 


 

The other definitions serve to clearly identify what those terms mean for the purposes of this Part of the Bill. These definitions re-enact the equivalent definitions in section 192 of the Accident Compensation Act 1985. The definitions of rateable remuneration in section 192 is now defined under clause 3 Definitions--General in this Bill. The definition of serious injury in section 192 has not been re-enacted in this Bill as it only applies in respect of claims lodged prior 12 November 1997. Clause 97 establishes the purposes of Part 4 and is intended to inform the interpretation of the rest of the Part, including obligations of employers and workers. This clause re-enacts section 189 of the Accident Compensation Act 1985. Clause 98 provides that Part 4 applies to and in respect of the return to work of the worker. This is a new clause, which has no equivalent in the Accident Compensation Act 1985. Clause 99 provides a signpost to indicate that the obligations of employers and workers are located in Divisions 2 and Division 3 respectively. This clause re-enacts section 190 of the Accident Compensation Act 1985. Clause 100 ensures that nothing within clause 28 or Part 4 varies the meaning which would otherwise be given to other clauses of the Bill, except where this is explicitly provided for within Part 4. For example, it ensures that Part 4 clauses dealing with "capacity for work" do not affect the meaning of the Part 5 benefits provisions which are also refer to "capacity for work". This clause re-enacts section 191 of the Accident Compensation Act 1985. Clause 101 establishes specific classes of workers and employers who are exempted from some of the obligations established in Part 4. These exemptions are warranted on the grounds that there is no traditional employment relationship between these classes of worker and employers and therefore it would be unreasonable to require the worker or employer to comply with the obligations 64

 


 

under this Part. For example, student workers who are employed for the purposes of gaining work experience and employers who employ family members. This clause re-enacts section 193 of the Accident Compensation Act 1985. Division 2--Obligation of employers This Division has the same operation as Division 3 of Part VIIB of the Accident Compensation Act 1985. The division sets out various employer obligations which are intended to facilitate and support an injured workers return to work. A number of obligations under this Division are qualified by a reasonableness tests. What is reasonable will depend on the circumstances and may evolve as the circumstances of the worker and the employer change. It is intended that further specificity regarding what is reasonable may be expounded in compliance codes made under clause 121. Clause 102 contains a flowchart which sets out an employer's return to work obligations. Clause 13 provides that a flow chart does not form part of this Bill; and is not intended to have any legal status. Clause 103 Clause 103(1) obliges an employer, until the employment obligation period expires, to provide employment to an injured worker who is able to return to work. If the worker is able to return to their pre-injury employment, the employer must offer them the same or equivalent employment. This requirement ensures security of employment for the injured worker. If the worker is not able to return to their pre-injury employment but is able to return to work in some other capacity, the employer must offer them suitable employment. This requirement facilitates early return to work which can, in turn, positively impact the worker's longer term health and return to work outcomes. The obligation is qualified by a reasonableness test. This ensures that the employer is not required to comply with the obligation where doing so would be unreasonably difficult or detrimental to them. A worker is under a corresponding requirement to make reasonable efforts to return to suitable employment under clause 114. 65

 


 

Clause 103(3) provides that the employment obligation period does not include any period during which liability for a claim is temporarily rejected. For example, a period commencing from the date the Authority rejects a claim for compensation and ending on the date the decision to reject the claim is overturned by a court. During these periods the employer is not required to provide suitable or pre-injury employment and the employment obligation period of 52 weeks stops running down. It commences again when the decision to reject liability for the claim is overturned. This ensures that the employer is not required to comply with the obligation under this section where liability for the claim has been rejected. The employment obligation period stops running down in these circumstances to ensure that the worker is provided with a reasonable opportunity to return to work if the decision to reject liability is overturned. Clause 103(2) specifies that the employment obligation period will include any of the periods specified in clause 103(3), if the employer provides suitable or pre-injury. In these circumstances the worker is provided with a reasonable opportunity to return to work with their pre-injury employer. Penalties apply if an employer fails to meet their obligations under this clause. These penalties are intended to encourage compliance with the obligations. The penalties are consistent with the penalty scale in the Sentencing Act 1991. This clause re-enacts section 194 of the Accident Compensation Act 1985. However the following changes have been introduced in this Bill-- Clause 103(3) provides that that the employment obligation period also does not include any period where a RTW Improvement Notice requiring them to provide suitable or pre-injury employment is stayed by the Authority or the Victorian Civil and Administrative Tribunal. This is because an employer is not required to comply with an obligation to provide suitable or pre- injury employment while the stay in force; and so it would be unfair to the injured worker if the employment obligation period continued to run down in this circumstance. 66

 


 

Clauses 103(1) and (3) clarify that the employment obligation period only continues to count down if the worker has an incapacity for work; and that the employer has an obligation to provide suitable or pre-injury employment until the employment obligation period finally expires. This change reflects the current operational practice. The definition of the term employment obligation period is contained in clause 96 of this Bill. Clause 104 obliges an employer to plan their worker's return to work. This obligation is qualified by a reasonableness test. It is intended that this mandatory planning process will prompt the employer to do things to facilitate their worker's return to work and help them to be more organised in their approach to return to work. The clause provides some examples of the activities which planning for return to work includes. To ensure that planning commences at the earliest opportunity, the obligation applies from the date on which the employer knows or ought reasonably to have known that the worker is not fit for work. A worker is under a corresponding obligation to make reasonable efforts to actively participate and cooperate in return to work planning under clause 111. Penalties apply if an employer fails to meet their obligations under this clause. These penalties are intended to encourage compliance with the obligations. The penalties are consistent with the penalty scale in the Sentencing Act 1991. This clause re-enacts section 195 of the Accident Compensation Act 1985. Clause 105 requires the employer to consult with the worker and the worker's health care professionals and occupational rehabilitation providers. Consultation with the worker's treating health practitioner is subject to the worker's consent. This obligation is qualified by a reasonableness test. It is intended that communication, cooperation and agreement on common goals between these parties will lead to better return to work outcomes for the worker. 67

 


 

A worker is under a corresponding obligation to make reasonable efforts to actively participate and cooperate in return to work planning under clause 111. Penalties apply if an employer fails to meet their obligations under this clause. These penalties are intended to encourage compliance with the obligations. The penalties are consistent with the penalty scale in the Sentencing Act 1991. This clause re-enacts section 196 of the Accident Compensation Act 1985. Clause 106 obliges employers to ensure that a return to work coordinator is appointed to assist them to meet their return to work obligations. Large employers must ensure that a coordinator is appointed at all times whereas small employers must ensure that a coordinator is appointed during a period when they have an obligation under Part 4. The difference is justified on the grounds that large employers are likely to have more claims and therefore require the expertise of a return to work coordinator on a more regular basis. All return to work coordinators must have an appropriate level of seniority, be competent to assist their employer in meeting their employer's obligations under Part 4, and have knowledge, skills or experience relevant to planning for return to work. 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 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 return to work coordinator is not liable for any acts or omissions if they are acting in good faith and in the course of their role as a return to work coordinator. Liability in these circumstances attaches to their employer. Penalties apply if an employer fails to meet their obligations under this clause. These penalties are intended to encourage compliance with the obligations. The penalties are consistent with the penalty scale in the Sentencing Act 1991. 68

 


 

This clause re-enacts section 197 of the Accident Compensation Act 1985. Clause 107 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 provision of this information assists employers and workers to understand their return to work roles and responsibilities and fosters a workplace culture that supports returning injured workers to work. Penalties apply if an employer fails to meet their obligations under this clause. These penalties are intended to encourage compliance with the obligations. The penalties are consistent with the penalty scale in the Sentencing Act 1991. This clause re-enacts section 198 of the Accident Compensation Act 1985. Clause 108 requires employers to notify the Authority when a worker who has been receiving weekly payments returns to work or if there is a change in the workers weekly earnings. This ensures that the Authority is kept up to date about the weekly earnings which the worker is receiving and can adjust any relevant rehabilitation and compensation arrangements accordingly. Penalties apply if an employer fails to meet their obligations under this clause. These penalties are intended to encourage compliance with the obligations. The penalties are consistent with the penalty scale in the Sentencing Act 1991. This clause re-enacts section 198A of the Accident Compensation Act 1985. Clause 109 defines the term host to mean a person to whom the services of an employer are let by another employer, the labour hire employer. The claims requires host's to co-operate with labour hire employers and assist them to comply with their obligations under clauses 103, 104 and 105. Hosts have this special responsibility because, technically, they are not the worker's employer for the purposes of this Bill. However, in practice, they are the worker's day to day employer. The worker's injury will have occurred at their workplace and therefore it is appropriate they bear some of the onus for returning the worker to work. They are also more likely than the labour hire employer to be able to provide the worker with suitable or pre-injury employment. It is intended that the extent to which 69

 


 

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. Penalties apply if a host fails to meet their obligations under this clause. These penalties are intended to encourage compliance with the obligations. The penalties are consistent with the penalty scale in the Sentencing Act 1991. This clause re-enacts section 199 of the Accident Compensation Act 1985. Division 3--Obligation of workers This Division has the same operation as Division 3 of Part VIIB of the Accident Compensation Act 1985. The division sets out various worker obligations which are intended to facilitate and support the workers return to work. A number of the worker obligations under this Division are qualified by reasonableness tests. What is reasonable will depend on the circumstances and may evolve as the circumstances of the worker and the employer change. It is intended that further specificity regarding what is reasonable may be expounded in compliance codes made under clause 121. Clause 110 contains a flowchart which sets out a worker's return to work obligations. Clause 13 provides that a flow chart does not form part of this Bill; and is not intended to have any legal status. Clause 111 requires workers to make reasonable efforts to actively participate and cooperate with the employer, Authority or self- insurer in return to work planning. The 2008 Accident Compensation Act Review (the Hanks Review), found that injured workers who are involved in the development of a return to work plan are more likely to consider the plan helpful than those who have had no involvement. Under clauses 104 and 105, the employer is under corresponding obligations to plan for return to work and consult with the worker about return to work. This clause re-enacts section 200 of the Accident Compensation Act 1985. 70

 


 

Clause 112 obliges workers to actively use occupational rehabilitation services when requested to do so by the Authority or self- insurers. It is intended that an occupational rehabilitation provider will assist the worker to return to work with their pre-injury employer or, if that is not possible, with a new employer. Occupational rehabilitation activities can include workplace assessments, advice concerning job modification, counselling and vocational re-education. This clause re-enacts section 201 of the Accident Compensation Act 1985 except that this clause provides that the obligation is qualified by a reasonableness test. This change ensures consistency with other employer and worker requirements under Part 4, which are also qualified by a reasonableness test. Clause 113 obliges workers to participate in assessments of their incapacity, rehabilitation progress and future employment prospects when requested to do so by the employer, self-insurer or Authority. It is intended that this assessment will assist the employer, self-insurer or the Authority to plan for and do things to aid the worker's return to work. This clause re-enacts section 202 of the Accident Compensation Act 1985 except that this clause provides that the obligation is qualified by a reasonableness test. This change ensures consistency with other employer and worker requirements under Part 4, which are also qualified by a reasonableness test. Clause 114 obliges a worker to make reasonable efforts to return to work in suitable employment at the worker's place of employment or another place of employment. This obligation is intended to facilitate early return to work which can, in turn, positively impact the worker's longer term health and return to work outcomes. A worker is deemed to be making reasonable efforts to return to work while they are waiting for specified return to work related actions to be taken. This reflects the fact that the worker may be unable to return to work until these actions are taken. A worker is deemed not to be making reasonable efforts to return to work while they are failing to comply with any obligations under Division 3 of Part 4. An employer is under a corresponding obligation to provide suitable employment under clause 103. 71

 


 

This clause re-enacts section 203 of the Accident Compensation Act 1985. Clause 115 obliges a worker to actively participate and cooperate in an interview for the purposes of return to work when required to do so by the Authority or self-insurer. These interviews enable the Authority or self-insurer to plan for the purposes of return to work and make decisions to assist with return to work. It is intended that a worker should be able to participate in an interview without attending the interview in person. This clause re-enacts section 204 of the Accident Compensation Act 1985 except that this clause specifies that the obligation is qualified by a reasonableness test. This change ensures consistency with other employer and worker requirements under Part 4, which are also qualified by a reasonableness test. Division 4--Termination of compensation This Division has the same operation as Division 4 of Part VIIB of the Accident Compensation Act 1985. The division deals with circumstances where a workers compensation is adjusted, suspended, terminated or ceased and determined for reasons related to their return to work. Clause 116 is intended to encourage a worker to comply with Division 3 of Part 4 by providing that the worker's compensation in the form of weekly payments may be suspended, terminated or ceased and determined by the Authority or self-insurer if the worker does not comply with their obligations under the Division. A worker who does not meet an obligation under Division 3 will receive a notice that the worker's weekly payments will be suspended unless the worker complies within a period specified in the notice. The period specified in the notice may be 14 to 60 days. A notice period of 14 days will normally be sufficient. However a broad range is provided to allow flexibility in view of the nature of the worker's injury and other relevant factors. The upper limit is intended to apply only if a dispute is being agitated about the worker's capacity for work. If the worker fails to comply by the expiry of the notice period, the weekly payments will be suspended for a 28 day period 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. 72

 


 

If, within the previous 12 months, the worker has been issued with two 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 of weekly payments in respect of that injury. This process provides opportunities for the worker to rectify their non- compliance in which case their weekly payments will be recommenced. However, if the worker's claim is ceased and determined by the Authority, the decision may only be overturned by a court's determination. In this way, the consequences of non-compliance escalate as the non- compliance continues, and so the worker has an increasing incentive to rectify their non-compliance sooner rather than later. This clause re-enacts section 205 of the Accident Compensation Act 1985. However, this clause expressly provides that if a worker does not comply at all during the 28 day suspension period, the whole 28 day suspension period is counted towards the first and second entitlement periods of weekly payments. This reflects the legislative intention and current operational practice. Clause 117 requires workers to notify the Authority when they return to any work with their pre-injury employer or another employer. This is intended to ensure that the Authority is aware of the worker's work status and can adjust any relevant rehabilitation and compensation arrangements accordingly. This clause re-enacts section 206 of the Accident Compensation Act 1985. Division 5--General provisions This Division has the same operation as Division 5 of Part VIIB of the Accident Compensation Act 1985. The clause establishes a number of requirements and powers, all of which are intended to support return to work. Clause 118 requires an employer and worker to attempt to resolve issues about the worker's return to work, in accordance with a procedure which has been agreed to by the employer and the worker or the procedure specified in a Ministerial direction. It is intended that a return to work specific issue resolution procedure will help facilitate the resolution of issues relating to 73

 


 

return to work, which might otherwise hold up the return to work process. This clause re-enacts section 207 of the Accident Compensation Act 1985. Clause 119 requires 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 clause 103 to provide suitable or pre-injury employment for the duration of the employment obligation period. Also that the Authority or self-insurer must inform the worker as to how many weeks of the obligation period have expired when, between 30 and 36 weeks of the period have expired. It is intended that the provision of this information will ensure that the worker is well informed about the nature of their employer's obligation and the duration of the period during which the obligation applies. This clause re-enacts section 208 of the Accident Compensation Act 1985. Clause 120 establishes the Authority's power to direct an employer to use the services of an approved provider of occupational rehabilitation services. It is intended that an occupational rehabilitation provider may assist the employer to comply with their obligations under Division 2 of Part 4. Occupational rehabilitation activities can include workplace assessments and advice concerning job modification and suitable employment. Penalties apply if the employer fails to comply with a direction. These penalties are intended to encourage compliance with directions given under this clause. The penalties are consistent with the penalty scale in the Sentencing Act 1991. This clause re-enacts section 209 of the Accident Compensation Act 1985. Clause 121 provides that the Minister may make vary or revoke a compliance code in relation to obligations under this Part of the Bill. It is intended that a compliance codes made under this clause would expand upon how the employer and worker obligations in Part 4 may be complied with. 74

 


 

This clause re-enacts section 210 of the Accident Compensation Act 1985. Clause 122 provides that a Ministerial order approving or varying a compliance code may be disallowed by the Parliament. This clause re-enacts section 212 of the Accident Compensation Act 1985, except that this clause requires that compliance codes must be laid before both houses of parliament after being made. This ensures that parliament is made aware of the making of a compliance code. It also specifies that the procedure for disallowing a compliance code is the procedure specified in relation to disallowance of legislative instruments under Parts 3A and 5A of the Subordinate Legislation Act 1994. The changes align the clause with provisions relating to the making of statutory instruments in the Subordinate Legislation Act 1994. Clause 122(4) also provides that the Subordinate Legislation Act 1994 does not apply to the first order made under clause 121. This ensures that current compliance codes can be remade under this Bill, with updated references and minor wording changes to reflect technical changes in the Bill, before 1 July 2014. Clause 123 provides that failure to comply with a compliance code does not give rise to any civil or criminal liability, because the specific details they provide for may not be relevant to or appropriate for all types of employers. It may be unfair to require all employers to comply with the standards set out in the codes. This clause re-enacts section 211 of the Accident Compensation Act 1985. Clause 124 provides that a person who complies with a compliance code which relates to a particular obligation under Part 4 will be taken to have complied with that obligation. In this way, the compliance codes provide employers with a degree of certainty. An employer will know with certainty that if they comply with the specific requirements set out in the compliance code, they are also complying with the more general obligation set out in the Act. This clause re-enacts section 213 of the Accident Compensation Act 1985. 75

 


 

Clause 125 provides that the Authority may make recommendations to the Minister proposing compliance codes. In the normal course of events, the Authority must provide the public with an opportunity to review and comment on a proposed code prior to making a recommendation. It is appropriate that the public is provided with an opportunity to provide input in the development of compliance codes given that, under clause 124, the codes affects what will be deemed to be compliance with the obligations under this Part of the Bill. The Minister may, by notice, exempt the Authority from this requirement where there is a public interest that the compliance code be made as soon as practicable. This may be the case where a compliance code needs to be made at short notice to address an emerging and significant issue. This clause re-enacts section 213A of the Accident Compensation Act 1985. Clause 125(4) provides that the public review and comment requirement does not apply to the first order made under clause 121. This ensures that compliance codes can be made under this Bill before 1 July 2014. Division 6--Return to work inspectorate This Division reflects Subdivisions 1 of Division 6 of the Accident Compensation Act 1985. The Division is intended to provide for the establishment of a Return to Work Inspectorate for the purposes of monitoring, encouraging and enforcing compliance with Part 4. Clause 126 empowers the Authority to appoint inspectors for the purposes of monitoring, encouraging and enforcing compliance with Part 4. This clause re-enacts section 215 of the Accident Compensation Act 1985. Clause 127 provides that inspectors must be provided with an identity card and must produce the card, if requested to do so, while performing their functions. Identity cards enable return to work inspectors to establish their legitimacy and so encourage the co-operation of the employer who is subject to the inspection. The requirement to show the card on request also safeguards the civil liberties of the employer and ensures the transparency and the accountability of the inspector as a representative of the Authority. 76

 


 

This clause re-enacts section 216 of the Accident Compensation Act 1985. Division 7--Functions and powers of inspectors This Division reflects Subdivisions 2 of Division 6 of the Accident Compensation Act 1985. The Division is intended to ensure that inspectors have sufficient powers to monitor, encourage and enforce compliance with Part 4. Inspector Powers under this Division are generally aligned with the powers of Occupational Health and Safety inspectors under the Occupational Health and Safety Act 2004. The requirements in this Division are designed to safeguard the civil liberties of an employer and its workers; and to ensure transparency and accountability of the inspector as a representative of the Authority. Clause 128 specifies that, for the purposes of Division 7, a reference to an employer includes a reference to a host (as defined in clause 96). This specification ensures that inspectors are empowered to enforce a host's obligation under clause 109 to cooperate with a labour hire employer. This clause re-enacts section 214B of the Accident Compensation Act 1985. Clause 129 provides that an inspector is subject to the Authority's directions in the performance of their functions or the exercise of their powers under the Act. It is intended that this will enable the Authority to direct the actions of inspectors via policies and procedures or via one off directions. This clause re-enacts section 217 of the Accident Compensation Act 1985. Clause 130 sets out the entry powers of inspectors. In particular the clause specifies that an inspector may enter a place which they reasonably believe is a workplace during the work hours of the workplace. However, they may not enter any part of the workplace that is only used for residential purposes, except with the consent of the occupier. This offers a reasonable compromise between the need for effective monitoring and enforcement of compliance with Part 4 of the Act and the civil liberties of the employer. This clause re-enacts section 218 of the Accident Compensation Act 1985. 77

 


 

Clause 131 requires an inspector, immediately on entering a workplace using their entry powers, to take reasonable steps to notify the occupier or apparent occupier of their entry and produce their identity card. This accords with the Victorian Law Reform Committee's 2002 report on The Powers of Entry, Search, Seizure and Questioning by Authorised Persons, which recommends that inspectors be required to announce their entry, identify themselves and show their identity cards. Doing these things enables the inspectors to establish their legitimacy and hence encourages the co-operation of the employer who is subject to the inspection. This clause re-enacts section 219 of the Accident Compensation Act 1985. Clause 132 requires an inspector who enters a workplace to give a report concerning the entry to the occupier or apparent occupier. If the purpose of the entry relates to a worker's return to work, the inspector must give a copy of the report to the worker. This clause re-enacts section 220 of the Accident Compensation Act 1985. Clause 133 gives an inspector powers to inspect, make enquiries and seize things, for the purposes of monitoring, encouraging and enforcing compliance with Part 4 of the Act. It is intended that the inspector could utilize these powers to determine whether the employer is complying with their obligations under the Part; to identify actions which the employer could take to rectify their non-compliance or improve their practice; and to gather evidence for a potential prosecution under the Bill. This clause re-enacts section 221 of the Accident Compensation Act 1985. Clause 134 gives an inspector various powers to require persons to produce documents and answer questions. It is intended that the inspector could utilize these powers to determine whether the employer is complying with their obligations under the Part; to identify actions which the employer could take to rectify their non-compliance or improve their practice; and to gather evidence for a potential prosecution under the Act. 78

 


 

An inspector must produce their identity card for inspection, warn the person that a refusal or failure to comply with the requirement without reasonable excuse is an offence and inform the person that he or she may refuse or fail to answer any question if answering the question would tend to incriminate him or her. A person may not be prosecuted under this clause, if the inspector fails to do these things. Doing these things enables the inspectors to establish their legitimacy and hence encourages the co-operation of the person. The privilege against self-incrimination is a well-established common law right. Penalties apply if the person fails or refuses to comply with an inspector's requirement. These penalties are intended to compel compliance with an inspector's requirements under this clause. The penalties are consistent with the penalty scale in the Sentencing Act 1991. This clause re-enacts section 222 of the Accident Compensation Act 1985. Clause 135 requires the Authority to return anything seized to the owner as soon as possible after an inspector has seized it. However, the Authority may retain the thing if the thing may afford evidence in legal proceedings for an offence under the Bill. The Authority may also destroy or dispose of the thing with the authorisation of a law or a court order. This clause re-enacts section 223 of the Accident Compensation Act 1985. Clause 136 gives an inspector the power to issue a Return to Work improvement notice which requires that a failure to comply with a requirement under Part 4 be rectified with in a timeframe specified in the notice. The return to work inspector may then certify that the contravention has been rectified at a later point in time. A return to work improvement notices strikes a balance between encouraging and enforcing compliance with Part 4 of the Act. In the first instance, the issuing of an improvement notice does not penalise the employer. Rather, it identifies non- compliance and provides the employer with practical advice which will assist them to rectify the non-compliance. 79

 


 

Penalties apply if an employer fails to comply with a Return to Work improvement notice under this clause. These penalties are intended to encourage compliance with the Return to Work improvement notices. The penalties are consistent with the penalty scale in the Sentencing Act 1991. This clause re-enacts section 224 of the Accident Compensation Act 1985. Clause 137 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. It is intended that such directions will provide the employer with practical advice which will assist them to rectify their non-compliance. This clause re-enacts section 225 of the Accident Compensation Act 1985. Clause 138 empowers the Authority to vary or cancel a Return to Work improvement notice. Accordingly, if the Authority becomes aware that a notice should not have been issued or contains an irregularity or defect, the Authority may cancel or vary the notice on its own initiative. This clause re-enacts section 226 of the Accident Compensation Act 1985. Clause 139 specifies that a return to work improvement may be delivered to an employer in person, by post or by facsimile. It also specifies that an employer must display a copy of certain notices at or near the workplace. This ensures that other workers at the workplace are made aware of the improvement notice. The requirement does not apply in relation to improvement notices which relate to a claim because public display of the notice might breech the privacy of the relevant worker. Penalties apply if an employer fails to display a Return to Work improvement notice in accordance with this clause. These penalties are intended to encourage compliance with the obligation to display Return to Work improvement notices. The penalties are consistent with the penalty scale in the Sentencing Act 1991. 80

 


 

If the Return to Work improvement notice relates to the return to work of a worker the inspector must provide a copy of a notice to the worker. An inspector may also give a copy of a notice to a relevant labour hire or host employer or to the relevant authorised agent. This ensures that the other relevant parties can be informed in advance of any action which the employer may be required to take, in accordance with the improvement notice, which may relate to them and may involve them. This clause re-enacts section 227 of the Accident Compensation Act 1985. Clause 140 provides that a return to work improvement notice is not invalid merely because of a formal irregularity or defect unless it is likely to cause substantial injustice. Similarly, the notice will not be invalid where the notice incorrectly names the employer, if the notice otherwise sufficiently identifies the employer. This ensures that the objectives of the notice are not compromised where, aside from the formal irregularity or defect, the notice is otherwise valid and warranted. This clause re-enacts section 228 of the Accident Compensation Act 1985. Clause 141 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. This ensures that Authority may still pursue a conviction for an offence under Part 4, even though a related notice has been cancelled or varied, if the offence can still be made out and the prosecution is still warranted. This clause re-enacts section 229 of the Accident Compensation Act 1985. Clause 142 provides that a person must not, without reasonable excuse, refuse or fail to provide such assistance as an inspector reasonably requires to perform their functions or exercise their powers. This ensures that persons can be compelled to assist inspectors. Penalties apply if a person fails to comply with this clause. These penalties are intended to encourage compliance with the clause. The penalties are consistent with the penalty scale in the Sentencing Act 1991. 81

 


 

This clause re-enacts section 230 of the Accident Compensation Act 1985. Clause 143 provides that an inspector is permitted to be assisted by another person, for the purpose of exercising a power under the Bill or regulations. It is intended that this will enable an inspector to be accompanied by another person who can assist them during an inspection. For example, an interpreter or a person who is has other expertise that the inspector requires but does not possess. Penalties apply if an employer refuses to allow a person assisting an inspector entry to the premises. These penalties are intended to encourage compliance with the clause. The penalties are consistent with the penalty scale in the Sentencing Act 1991. This clause re-enacts section 231 of the Accident Compensation Act 1985. Clause 144 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. This clause re-enacts section 232 of the Accident Compensation Act 1985. Clause 145 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. This clause re-enacts section 233 of the Accident Compensation Act 1985. Division 8--Offences This Division reflects Subdivision 3 of Division 6 of the Accident Compensation Act 1985. The Division establishes certain offences in relation to return to work inspectors. Clause 146 makes it an offence for a person to intentionally hinder or obstruct an inspector in the performance of his or her functions. Where a return to work inspector exercises their powers appropriately and in accordance with the law, they are entitled to do so without being subject to violence, harassment or 82

 


 

ridicule, and are entitled to the protection of the law and to respect as persons carrying out their duty on behalf of the community. Penalties apply if a person fails to comply with this clause. These penalties are intended to compel compliance with the clause. The penalties are consistent with the penalty scale in the Sentencing Act 1991. This clause re-enacts section 234(1) of the Accident Compensation Act 1985. Clause 147 makes it an offence for a person to assault or intimidate an inspector or a person assisting an inspector. Where a return to work inspector exercises their powers appropriately and in accordance with the law, they are entitled to do so without being subject to violence, harassment or ridicule, and are entitled to the protection of the law and to respect as persons carrying out their duty on behalf of the community. Penalties apply if a person fails to comply with this clause. These penalties are intended to encourage compliance with the clause. The penalties are consistent with the penalty scale in the Sentencing Act 1991. This clause re-enacts section 234(2) of the Accident Compensation Act 1985. Clause 148 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. This protects employers and workers from unscrupulous persons and the legitimacy of the return to work inspectorate. A penalty applies if a person fails to comply with this clause. The penalty is intended to encourage compliance with the clause. The penalty is consistent with the penalty scale in the Sentencing Act 1991. This clause re-enacts section 235 of the Accident Compensation Act 1985. 83

 


 

Division 9--Review of decisions This Division reflects Subdivision 4 of Division 6 of the Accident Compensation Act 1985. The Division establishes an internal review process in relation to decisions made by inspectors. It is intended that this internal review process will ensure procedural fairness and accountability and transparency. Clause 149 establishes that the following decisions may be reviewed-- to issue a return to work improvement notice, under clause 136; to issue a certificate, certifying compliance with a return to work improvement notice, under clause 136; and to vary or cancel a return to work improvement notice under clause 138. The following persons may apply for a review-- The employer who is subject to the notice; A worker whose interests are directly affected by the decision (the relevant injured worker, if their interests are directly impacted by the decision); An employer whose interests are affected by the decision (for example a host employer). The right to seek review provides a level of accountability and transparency in relation to the inspectors or Authority's decisions. It also ensures procedural fairness for employers or workers who may be adversely impacted by the decisions. This clause re-enacts section 236 of the Accident Compensation Act 1985. Clause 150 specifies the process by which reviewable decisions will be reviewed. The Authority must confirm, vary or set aside the original decision within 21 days after an application for review is made. In the case of a decision relating to a return to work improvement notice issued under clause 136, the Authority must confirm, vary or set aside the original decision within 7 days after the application for review is made. This shorter 84

 


 

timeframe reflects the need for speedy resolution of any issues which might hold up an injured worker's return to work. If the Authority fails to notify an applicant within the required time frame, the decision is taken to have been affirmed. This ensures that the worker, in whose interest the decision will most likely have been made, is not adversely affected by any failure of the Authority to make a decision within the required timeframe. An application for review will not automatically defer the effect of the decision. However, the Authority has a discretion to stay the effect of a decision, pending the determination of the review. This clause re-enacts section 236A of the Accident Compensation Act 1985. Clause 151 establishes that a person who is eligible to apply for a review may also apply to the Victorian Civil and Administrative Tribunal for review of a decision to affirm, vary or cancel a return to work improvement notice under clause 138 or a decision on review made under clause 150. The right to seek review by VCAT provides an additional level of accountability and transparency in relation to the inspectors or Authorities decisions. It also ensures procedural fairness for employers or workers who may be adversely impacted by the decisions. This clause re-enacts section 236B of the Accident Compensation Act 1985. PART 5--BENEFITS Division 1--Preliminary This Division sets out definitions for the purposes of this Part. Clause 152 defines the terms current weekly earnings, deductible amount, first entitlement period and second entitlement period. These terms inform the calculation of the amount of weekly payments payable to an injured worker, and the duration for which the payments are payable under Division 2 of this Part. 85

 


 

Current weekly earnings refers to the amount of weekly earnings which the worker is receiving in relation to a given week following compensable injury. Under Division 2 of this Part, a worker's entitlement to weekly payments will be reduced by the amount of any current weekly earnings which they are receiving. This is intended to ensure that the worker does not receive a double payment in relation to these earnings for that particular week. This definition operates the same as the equivalent definition in clause 5B of the Accident Compensation Act 1985. This clause clarifies that directional payments under clause 155(1)(c) are current weekly earnings (rather than a deductible amount) and that directional payments are excluded from the definition of deductible amount which is also relevant to the calculation of the worker's weekly payments. The change reflects current practice and ensures that the amounts cannot be deducted twice. Clause 626 makes an equivalent amendment to section 5B of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Deductible amount refers to the amount of non-pecuniary benefit, under clause 155(1)(d), which the worker receives from their employer before or after their injury. Non-pecuniary benefits include accommodation, use of a motor vehicle, health insurance and education. Under Division 2 of this Part, a worker's entitlement to weekly payments will be reduced by the deductible amount. This ensures that the worker does not receive a double payment in relation to those benefits. This definition operates the same as the equivalent definition in clause 91E of the Accident Compensation Act 1985. However, directional payments are excluded from this definition, as they are instead considered to be part of current weekly earnings. The change reflects current practice and is ensures that the amounts cannot be deducted twice. Clause 628 makes an equivalent amendment to the definition in section 91E of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. 86

 


 

First entitlement period and second entitlement period refer to periods during which weekly payments are paid or payable to a worker. Weekly payments are reduced when the first entitlement period expires and may be ceased when the second entitlement period expires. The periods run for aggregate periods of 13 and 117 weeks respectively; and may stop running down in specific circumstances and then commences running down again when those circumstances no longer exist, for example, where a worker has full capacity and has returned to work. The periods are intended to ensure that an injured worker is fairly and equitably compensated as a result of being unable to work. These definitions operate the same as the equivalent definitions in section 91E of the Accident Compensation Act 1985, except as identified. The term week clarifies that, for the purposes of counting the specified entitlement periods, where a worker receives even one day of payment in a particular week, that week will be counted for the purposes of the entitlement period. The definition reflects current practice and is intended to provide certainty about what will be counted as a week. Clause 628 inserts an equivalent definition in section 91E of the Accident Compensation Act 1985, which will apply in relation to injuries occurring before 1 July 2014. Clause 153 defines the term pre-injury average weekly earnings by reference to the average amount of earnings which the worker received during a specified period leading up to their injury. A worker's pre-injury average weekly earnings determines the amount of weekly payments of compensation that a worker may be entitled to receive. Clause, 153(1) sets out the normal method for calculating the pre-injury average weekly earnings amount. It provides that the amount includes the average weekly ordinary earnings of a worker during the relevant period, as defined under clause 154, and any earning enhancements as defined under clause 157. The relevant period, does not include periods where the worker was on paid leave. This method of calculation is intended to ensure that the pre-injury average weekly earnings amount fairly and equitably estimates the worker's earnings capacity at the time of their injury. 87

 


 

Clauses 153(2) to (7) set out alternative methods for calculating pre-injury average weekly earnings which apply in specified circumstances. These alternative calculation methods are intended to recognise the many varied type of work and payment arrangements that occur and to ensure that the pre- injury average weekly earnings amount fairly and equitably estimates the worker's earnings capacity at the time of their injury in these specified circumstances. This clause operates the same as section 5A of the Accident Compensation Act 1985. However, this clause clarifies that the relevant period does not include any full week during which the worker was on paid leave at less than their base rate of pay (for example long service leave at half pay). This change reflects current practice and ensures that the pre-injury average weekly earnings amount is not unfairly affected because the worker was on a reduced salary during this period of leave. Clause 626 makes an equivalent amendment to section 5A of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 154 defines the term relevant period for the purposes of the definition of pre-injury average weekly earnings in clause 153. The term refers to the period of weeks which will be reviewed to determine the worker's pre-injury average weekly earnings under clause 153. Under clause 154(1), the relevant period is normally the period of 52 weeks immediately before the worker was injured. This provides a reasonable amount of time to assess the average weekly earnings of the person. If the worker has been with their employer for less than 52 weeks, the relevant period is the actual period of employment. Clauses 154(2) and (3) specify a different relevant period to be applied in specified circumstances where the worker's ordinary earnings have increased or reduced (on a more than temporary basis) during the period of 52 weeks before the injury. These alternative calculation periods are intended to ensure that the pre-injury average weekly earnings calculation accurately reflects the worker's earning capacity at the time of their injury and is not unfairly affected because of the change in their earning capacity. 88

 


 

This clause operates the same as section 5AA of the Accident Compensation Act 1985. Clause 155 defines the term ordinary earnings for the purposes of the definitions of pre-injury average weekly earnings in clause 153. The term refers to the earnings which a worker ordinarily received each week during the relevant period as defined under clause 154. It includes amounts such as the worker's base rate of pay or their actual earnings if they did not have a base rate of pay; any piece rate payments or commission which the worker received; the monetary value of residential accommodation, the use of a motor vehicle, health insurance and education fees; and directional payments. The inclusion of these amounts is intended to ensure that the calculation of a worker's pre-injury average weekly earnings consistently, fairly and equitably reflects the worker's earning capacity at the time of their injury. This clause operates the same as 5AB of the Accident Compensation Act 1985. However, this clause clarifies that ordinary earnings will not be calculated on the basis of any full week during which the worker was on paid leave at less than their base rate of pay (for example long service leave at half pay). This change reflects current practice and ensures that the pre-injury average weekly earnings amount is not unfairly affected because the worker was on a reduced salary during this period of leave. Clause 626 makes an equivalent amendment to section 5AB of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 156 defines the term base rate of pay for the purposes of the definition of pre-injury average weekly earnings in clause 153. Clause 156(1) expressly provides that base rate of pay does not include: incentive payments and bonuses; loadings; monetary allowances; piece rates or commissions; overtime or shift allowances; separately identifiable amounts. The exclusion is intended to ensure that the amounts are not counted twice. Clause 156(2) provides that a worker's actual rate of pay is taken to be their base rate of pay, if it is higher than the base rate of pay specified in their industrial award. This clause operates the same as section 5AC in the Accident Compensation Act 1985. 89

 


 

Clause 157 defines the terms earnings enhancement and enhancement period for the purposes of the definition of pre-injury average weekly earnings. Earnings enhancements are the average overtime and shift allowance payments which the worker received during the relevant period. The definition is intended to ensure that such earnings are counted for the purposes of calculating the worker's pre-injury average weekly earnings, so that the worker is also compensated for the loss of those earnings. The enhancement period refers to the period during which the worker's pre-injury average weekly earnings will be enhanced by an earnings enhancement under this clause. The period is the first 52 weeks in which weekly payments are paid to a worker under clause 161 or 162 or to a worker's dependants under clause 241. This clause operates the same as 5AD in the Accident Compensation Act 1985. Clause 158 defines the term ordinary hours of work for the purposes of the definitions of pre-injury average weekly earnings in clause 153 and current weekly earnings in clause 152. The clause provides that ordinary hours of work are the hours specified in an industrial award; agreed to between the worker and the employer; or the average weekly hours during the relevant period. The definition is intended to give certainty to workers, employers, the Authority and self-insurers as to how to determine a worker's ordinary hours. This operates the same as section 5AE in the Accident Compensation Act 1985. However, this clause clarifies that where ordinary hours of work is based on a worker's average hours worked, any week of paid leave taken by a worker at a rate less than full pay (for example, paid maternity leave taken at half pay), is to be excluded from their PIAWE calculation. This change reflects current practice and ensures that the pre-injury average weekly earnings amount is not unfairly affected because the worker was on a reduced salary during this period of leave. Clause 626 makes an equivalent amendment to section 5AE of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. 90

 


 

Clause 159 governs the twice the State average weekly earnings (as defined) cap on weekly benefits, which applies under clauses 161, 162 and 241. The clause provides that where a worker's weekly payments are capped by the state average weekly earnings amount, and that amount reduces in a subsequent financial year, the worker's ongoing entitlement in the subsequent financial year will be capped at the higher amount. This ensures that a worker is not disadvantaged as a result of any change. This clause operates the same as section 91EA in the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Division 2--Weekly Payments This Division provides that the Authority, self-insurers and employers are liable to pay compensation in the form of weekly benefits to injured workers. Clause 160 establishes a worker's entitlement to receive weekly payments. The entitlement to weekly payments is based upon a worker's pre-injury average weekly earnings. This clause operates the same as section 93 in the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 161 provides that a worker's entitlement to weekly payments during the first entitlement period is 95% of their pre injury earnings and cannot be more than twice the state average weekly earnings. The reduction in weekly payments in the first entitlement period is intended to provide an incentive for injured workers to return to work as quickly as possible. Weekly payments must also be reduced by the amount of a worker's current weekly earnings and the deductible amount as defined in clause 152. This ensures that a worker does not receive a double payment in relation to these amounts. This clause operates the same as section 93A(3) of the Accident Compensation Act 1985, except that this clause expressly provides that weekly payments must be reduced by the amount of a worker's current weekly earnings regardless of whether their employment is considered "suitable"' or "unsuitable" and regardless of whether a worker has a "current work capacity" or "no current work capacity". This change makes clear the 91

 


 

legislative intention that a worker should not receive a double payment in relation to such earnings in the circumstances described. Clause 630 makes an equivalent amendment to section 93A of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. The content of subsections 93A(1) and (2) is not provided for in this Bill as those subsections apply in relation to claims made before 1 July 2014. Clause 162 provides that a worker's entitlement to weekly payments during the second entitlement period is 80% of their pre injury earnings and cannot be more than twice the state average weekly earnings. The further reduction in weekly payments in the second entitlement period is intended to provide a greater incentive for injured workers to return to work as quickly as possible. Weekly payments must also be reduced by the amount of a worker's current weekly earnings and the deductible amount as defined in clause 152. This is intended to ensure that a worker does not receive a double payment. This clause operates the same as section 93B(3) of the Accident Compensation Act 1985, except that this clause expressly provides that weekly payments must be reduced by the amount of a worker's current weekly earnings regardless of whether their employment is considered "suitable" or "unsuitable" and regardless of whether a worker has a "current work capacity" or "no current work capacity". This change makes clear the legislative intention that a worker should not receive a double payment in relation to such earnings, in the circumstances described. Clause 630 makes an equivalent amendment to section 93B(3) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. The content of subsections 93B(1) and (2) is not provided for in this Bill as those subsections apply in relation to claims made before 1 July 2014. Clause 163 limits a worker's entitlements to weekly benefits after the second entitlement period. A worker will only be entitled to ongoing weekly benefits after the second entitlement period if the worker is assessed as having no current work capacity and is likely to continue to have no current work capacity indefinitely. The limitation is intended to provide an incentive for injured workers to return to work. The exception recognises that some workers, because of the nature of their injury, may be unable to 92

 


 

return to work and may still require support in the form of weekly benefits. If a worker is entitled to receive weekly benefits after the second entitlement period, the entitlement is 80% of their pre injury earnings and cannot be more than twice the state average weekly earnings. Weekly payments must also be reduced by the amount of a worker's weekly earnings from employment. This is intended to ensure that a worker does not receive a double payment. This clause operates the same as section 93C(1)(a), (2)(d) and (3) of the Accident Compensation Act 1985, except that this clause provides that weekly payments must be reduced by the amount of a worker's current weekly earnings regardless of whether their employment is considered "suitable" or "unsuitable" and regardless of whether a worker has a "current work capacity" or "no current work capacity". This change makes clear the legislative intention that a worker should not receive a double payment in relation to such earnings, in the circumstances described. Clause 630 makes an equivalent amendment to section 93C of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. The content of the remaining subsections under section 93C are not provided for in this Bill as those subsections apply in relation to claims made and injuries occurring before 1 July 2014. Clause 164 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. The entitlement is only payable where the worker has returned to work for at least 15 hours per week and has earned at least $177 per week. This provision recognises that workers who have returned to work may require assistance whilst experiencing temporary periods of incapacity where they require surgery because of their work-related injury. In these circumstances it is fair and equitable that workers have an entitlement to weekly payments. 93

 


 

This clause operates the same as section 93CA of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 165 allows a worker to apply for compensation in the form of weekly payments after the expiry of the second entitlement period. The Authority or self-insurer must only approve an application if the worker has returned to work for at least 15 hours per week; earns at least $177 per week; and, because of their injury, is incapable of undertaking further additional employment which would increase their current weekly earnings and is likely to continue indefinitely to be incapable of doing so. The clause recognises that some workers, even after treatment and rehabilitation, may have a residual level of incapacity that prevents them from returning to their pre-injury employment. However, the worker may be able to engage in employment to some extent and should be encouraged to do so. This clause operates the same as section 93CD of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. The content of subsection 93CD(5)(a) and (b) is not provided for in this Bill as those subsections apply in relation to claims made before 1 July 2014. Clause 166 recognises that a worker who continues to receive weekly payments under clause 165 may not always initially work the same number of hours every week, and in the circumstances outlined in this clause, such workers should not be penalised by losing their entitlement to weekly benefits. The clause allows for a worker to continue to be entitled to payments under clause 165 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 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 165. This clause operates the same as section 93CDA of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. 94

 


 

Clause 167 requires a worker to provide the Authority or self-insurer with ongoing certificates of capacity, specifying the worker's capacity for employment and the expected duration of their incapacity. They must also provide ongoing declarations as to whether or not they have engaged in any voluntary work or employment since they last provided a certificate of capacity to the Authority or self-insurer. The Authority or self-insurer requires this information in order to determine whether the worker is entitled to compensation in the form of weekly payments under Division 3 of Part 5. The information may also inform the Authority or self-insurer's decisions regarding rehabilitation and return to work arrangements. Where a medical certificate specifies a duration of more of more than 14 days, it will only be valid for the first 28 days. This ensures that the worker's medical condition is assessed regularly so that the Authority or self-insurer receives up to date information about a worker's capacity for employment. The Authority or self-insurer has a discretion to allow a certificate which specifies a duration of more than 28 days where there is a special reason why the certificate covers a longer period. For example, where a worker has a very serious injury and the Authority or self-insurer is satisfied that it is appropriate for a medical certificate under section 24 to address the worker's capacity over a longer period than 28 days. A medical certificate is not valid if it relates to a period of time more than 90 days before the date on which it was issued. This also reflects that the Authority or self-insurer require up to date information about the worker's capacity for employment. This clause operates the same as section 111 of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 168 establishes an entitlement for a worker who has already received compensation in the form of weekly payments for 52 weeks to also receive compensation in the form of contributions to a complying superannuation fund of their choice, other than a defined benefit fund or scheme. The clause recognises that the national superannuation guarantee scheme does not require employers to make superannuation contributions during periods of incapacity caused by work- related injury or illness, and that this has a particularly 95

 


 

significant impact on workers who are off work for long periods. Clause 168(1) provides that, subject to the worker nominating a complying fund and providing details of their 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. Clause 168(2) specifies that a worker is not entitled to receive compensation in the form of superannuation contributions where an employer is already making contributions in specified circumstances and the contributions are more than necessary to avoid an individual superannuation guarantee shortfall under the superannuation guarantee scheme. This ensures that the worker is not entitled to a double contribution. Clause 168(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 clause 164 or 170 to a worker recovering from surgery, unless the worker would otherwise be receiving weekly payments under clause 165. Clause 168(4) requires the Authority to notify the worker about the entitlement and also to inform the 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 96

 


 

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. Clause 168(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. This clause operates the same as section 93CE of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 169 provides that if a worker is injured within the period of 130 weeks before attaining retirement age, as defined in clause 3, or after attaining retirement age, the worker is entitled to weekly payments for 130 weeks (whether consecutive or not) of incapacity for work. The clause is intended to extend the entitlement period of weekly payments for workers who would otherwise cease to be entitled to weekly payments on attaining retirement age, under clause 171. This ensures greater parity between those workers who are injured well before retirement age and those who are injured within the period of 130 weeks before attaining retirement age or after attaining retirement age. This clause operates the same as section 93E of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 170 entitles a worker to receive compensation for an incapacity which arises after they have attained retirement age, as defined in clause 3. To qualify for the entitlement, the worker must have received weekly benefits in relation to a workplace injury within 10 years of attaining retirement age and must have become incapacitated after retirement age, due to treatment in relation to the injury received after retirement age. The worker 97

 


 

must also otherwise be entitled to weekly payments. The payments are payable for a maximum of 13 weeks. It is fair and equitable that weekly payments are payable in these circumstances because of the connection between the worker's initial injury and their subsequent incapacity. The 10 year cut-off is justified because it is difficult to establish a link between the initial injury and the subsequent incapacity, 10 years after the worker attains retirement age. This clause operates the same as section 93EA of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 171 provides that a worker ceases to be entitled to weekly payments after they attain retirement age. The provision is subject to the exceptions provided for in clauses 169 and 170. It is intended that the weekly benefits should compensate a worker for any lost income which they are unable to earn through employment as a result of their injury. A worker ceases to be entitled to weekly payments when they attain retirement age because at that age, it is assumed that they would have ceased working and earning an income if they had not been injured and, therefore, would no longer be a worker. This clause operates the same as section 93F of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 172 provides for weekly payments to be reduced by an amount which a worker receives in the form of retirement, superannuation or disability pensions or lump sum. This ensures that a worker does not receive a double payment in relation to these amounts. Under clause 172(4) the reduction does not apply where a worker withdraws an amount from their own superannuation contributions if the amount is for an approved capital expenditure. The exception is intended to operate in exceptional circumstances, in particular, where a worker is under extreme financial hardship and risks losing their family home. In these circumstances, the worker should not be penalised for accessing their own superannuation contributions. 98

 


 

This clause operates the same as section 96 of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 173 requires a worker who is receiving weekly payments or who makes a claim for compensation in the form of weekly payments, to give notice to the Authority or a self-insurer if they receive or have a received a retirement or superannuation pension or lump sum referred to in clause 172. Similarly, an employer must notify the Authority if it becomes aware that the worker is or may be entitled to a retirement or superannuation pension or lump sum referred to in clause 172. These notification requirements ensure that the Authority or self-insurer is appropriately informed of any benefits the worker is receiving and can adjust the workers weekly benefits accordingly. Notification is required as these types of payments may impact on weekly payments. Failure to comply with this provision is an offence, for which a penalty may be imposed. The penalty is intended to encourage compliance with requirement. The penalty is consistent with the penalty scale in the Sentencing Act 1991. This clause operates the same as section 96A of the Accident Compensation Act 1985 which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 174 makes clear that sums paid to a worker under specified arrangements should not affect the weekly benefits which the worker is entitled to receive under this Division. For example, sums paid or payable under contracts of insurance or payments in lieu of accrued leave. This clause operates the same as section 97(1) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 175 provides that a worker will not be entitled to receive weekly payments if they cease to reside in Australia, unless the worker is able to satisfy the Authority or self-insurer that they have no current work capacity and are likely to continue to have no current work capacity indefinitely. Further, if a worker is temporarily absent from Australia, they are only entitled to weekly payments for an aggregate period of up to 28 days. This is because the worker's absence from Australia will impede 99

 


 

the worker's capacity to comply with their claim and return to work related obligations under this Bill. This clause operates the same as section 97(2) and (3) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 176 makes clear that a worker's entitlement to compensation cannot be transferred to another person. For example the entitlement cannot be sold to another person. It is intended that compensation under this Bill is for the benefit of the injured worker and is not intended to benefit any other person (except in relation to dependants of a deceased worker, who are entitled to compensation under Division 8 of Part 5). Clauses 176 (2) and (3) allows the Authority to reduce a worker's entitlement to weekly payments, in order to offset certain amounts of compensation previously paid to the worker and any amount the worker has been ordered by a court to pay on being found guilty or convicted of certain offences. This clause operates the same as section 97(4), (4A) and (4B) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 177 provides that prisoners detained in or outside Victoria are not eligible to receive weekly payments in respect of any period during which the person serves a sentence of imprisonment. It is intended that the weekly benefits should compensate a worker for any lost income which they are unable to earn through employment as a result of their injury. The entitlement ceases during these periods because their imprisonment would have prevented them from working and earning an income even if they had not had their injury. This clause operates the same as section 97(7) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 178 specifies timeframes within which the Authority or self-insurer must commence weekly payments after a claim is accepted or a direction or determination is made that weekly payments are payable. The clause ensures that payments are commenced in a timely manner. It is also intended to provide certainty for workers, employers, the Authority and self-insurers as to when payments should be made. 100

 


 

This clause operates the same as section 114C of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 179 specifies timeframes within which ongoing weekly payments must be made to a worker. Employers and self-insurers are required to pay weekly payments within these timeframes. The clause ensures that payments are made in a timely manner and is intended to provide certainty for workers, employers, the Authority and self-insurers as to when payments should be made. Penalties apply if an employer or self-insurer fails to comply with their requirements under this clause. The penalties are intended to encourage compliance with the clause. The penalties are consistent with the penalty scale in the Sentencing Act 1991. This clause operates the same as section 114D of the Accident Compensation Act 1985, except that this clause clarifies that a self-insurer will be subject to a penalty if they fail to comply with their requirements under clause 178(1) and (3). This clause also clarifies that a self-insurer is required to pay arrears of weekly payments within 7 days of a determination or the acceptance of a claim. Penalties apply if a self-insurer fails to comply with this requirement. It is intended that the penalties will encourage compliance with this clause. Clause 635 makes an equivalent amendment to section 114D of the Accident Compensation Act 1985, to reflect the original legislative intention, and that provision will continue to apply in relation to injuries which occur before 1 July 2014. Division 3--Alteration or termination of weekly payments and superannuation contributions This Division sets out the procedures by which the Authority or a self-insurer may alter or terminate a workers weekly payments and superannuation contributions. Clause 180 provides that the division only applies if a worker was receiving weekly payments when any change in their entitlement to weekly payments occurs. It does not apply retrospectively. This is intended to provide certainty for workers and employers as to which Act applies to an entitlement. 101

 


 

This clause operates the same as section 114(1A) of the Accident Compensation Act 1985. This clause expressly provides that clause 182 and clause 185 apply whether or not the worker is currently receiving weekly payments. This reflects the legislative intention in section 114(1A) of the Accident Compensation Act, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 181 sets out a process whereby a worker may apply for an increase or reduction in the amount of weekly payments they are receiving. The worker must specify the reason for applying and provide evidence supporting the alteration in the amount of weekly payments that is sought. The Authority or self-insurer must approve or reject an application, providing reasons in the case of a rejection. The clause provides workers with an avenue to seek alteration of their weekly payments where it is warranted in the circumstances and in order to ensure that they can receive fair and just compensation. The requirements on the Authority and self-insurer ensure procedural fairness, transparency and accountability in relation to their decision. This clause operates the same as section 110 of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 182 enables the Authority or a self-insurer to terminate or alter a worker's entitlement to weekly payments, as provided for under Division 3. It is expected that the Authority or self-insurer would have clear reason for doing this. The termination or alteration of weekly payments is intended to ensure that a worker receives fair and equitable compensation which reflects their situation. This clause operates the same as section 114(1) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 183 sets out the grounds upon which the Authority or a self-insurer may terminate or alter a worker's entitlement to weekly payments under clause 182. The grounds include where the worker is no longer entitled to weekly payments under the Bill; where the worker has returned to work; where the worker's current weekly earnings or other specified income has altered or where the Authority or self-insurer considers that the payments were obtained fraudulently. 102

 


 

Clause 183(2) and (3) provide that a termination or alteration of weekly payments on the grounds that the worker is no longer entitled to weekly payments, will only take effect if and when the worker is given prior written notice. This is intended to ensure procedural fairness, transparency and accountability in relation to the Authority or self-insurer's decision. It also provides the worker with an opportunity to make financial arrangements in preparation for the termination or alteration. However, the Authority or self-insurer may terminate or alter a worker's weekly payments without giving prior written notice where the worker has returned to work or where the worker's current weekly earnings or other specified income has altered. In these circumstances the grounds for alteration or termination are clear and so there is no need to notify the worker. Clauses 183(4) and (5) provide that a termination or alteration of weekly payments on the grounds that that the payments were obtained fraudulently takes effect on the date the Authority or self-insurer determines that the services were obtained fraudulently. It is intended that a worker should not receive any further payments once it is determined that those payments were obtained fraudulently. The worker must be provided with notice of the determination after the determination is made. This is intended to ensure procedural fairness, transparency and accountability in relation to the Authority or self-insurer's determination. This clause operates the same as section 114(2), (3), (4), (5) and (6) of the Accident Compensation Act 1985. However this clause provides that the Authority or self-insurers are not required to provide notice where a worker becomes entitled to an increase in weekly payments as a result of the worker ceasing to receive a non-pecuniary benefit from an employer (such as a work car or mobile phone). The requirement to provide notice unnecessarily delays the increasing of weekly payments. Clause 635 makes an equivalent amendment to section 114(2), (3), (4), (5) and (6) of the Accident Compensation Act 1985 which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 184 enables the Authority or a self-insurer to alter or terminate compensation in the form of superannuation contributions on the grounds that the worker's entitlements to weekly payments have been altered or terminated, without giving notice. In these 103

 


 

circumstances the grounds for alteration or termination of the contributions are clear and there is no need to notify the worker. This clause operates the same as section 114EB of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 185 allows the Authority or a self-insurer to determine not to alter or terminate a worker entitlement to weekly payments where the worker's current weekly earnings have reduced for specified reasons. These reasons include where the worker no longer resides in Victoria; where their employment has been terminated due to their misconduct; and where they have resigned or reduced their hours for reasons unrelated to their injury. It is intended that weekly benefits should compensate a worker for any lost income which they are unable to earn through employment as a result of their injury. In these circumstances the worker's currently weekly earnings have reduced due to factors which are within their control and which are not related to their incapacity. Clauses 185(2) and (3) provide that a determination under this clause will only take effect if the worker is given written notice. This is intended to ensure procedural fairness, transparency and accountability in relation to the Authority or self-insurer's decision. It also provides the worker with an opportunity to make financial arrangements in preparation for the termination or alteration. Clause 185(4) expressly provides that weekly payments should not be altered where a worker's current weekly earnings are reduced solely because the worker is on paid annual leave or long service leave. This clause operates the same as section 114(2A) to (2D) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 186 Clause 186(1) specifies when terminations or alterations of compensation under specific provisions of the Bill take effect and whether or not written notice is required. For example, a termination of weekly payments under clause 164 takes effect on the day the worker ceases to suffer incapacity or when the 13 week period, specified in that clause, expires without the need to give a written notice. The clause also specifies whether 104

 


 

or not the Authority or self-insurer must notify a worker in relation to these terminations or alterations of weekly payments. The clause is intended to provide certainty as to when these terminations or alterations take effect. This clause operates the same as section 114(5), (5A), (8), (9) and (9A) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 187 provides that where the Authority or a self-insurer terminates compensation in the form of superannuation contributions on the grounds that the worker is no longer entitled to such compensation, they must give the worker written notice. This is intended to ensure procedural fairness, transparency and accountability in relation to the Authority or self-insurer's decision. Where the Authority or self-insurer terminates compensation in the form of superannuation contributions on the grounds that the worker has no entitlement to weekly payments, they are not required to give the worker written notice. In these circumstances the grounds for alteration or termination of the contributions are clear and there is no need to notify the worker. This clause operates the same as section 114AA of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 188 specifies the content which the Authority or a self-insurer must include in a written notice given under this Division. It is intended to ensure that a worker is adequately informed of the reason for the change to their weekly payments and when the change will take effect. This is intended to ensure procedural fairness for the worker, and accountability and transparency by the Authority or self-insurer in relation to the change of entitlement. This clause operates the same as section 114(10) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 189 provides that the Authority or a self-insurer must give a worker a period of notice prior to terminating their entitlement to weekly payments where the worker has been receiving the payment for a continuous period of at least 12 weeks and has 105

 


 

complied with the requirement to provide a certificate of capacity under clause 167. The giving of notice provides the worker with an opportunity to make financial arrangements in preparation for the termination or alteration. The clause also provides some protection to workers by ensuring that a worker is entitled to reimbursement where the worker has not been given the notice in accordance with this clause. This clause operates the same as section 114(11), (12) and (13) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 190 specifies that a worker's entitlement to weekly payments must not be reduced on the ground that the first entitlement period has expired, unless and until the Authority or the self-insurer has made a determination of the worker's entitlement under section 162 and has given at least 14 days notice of the decision following that determination. A worker will continue to be entitled to compensation under clause 162 until the period of notice is given. The giving of notice provides the worker with an opportunity to make financial arrangements in preparation for the reduction. Under clause 190(4) the notice requirement does not apply where the worker made their claim for weekly payments within 42 days prior to the expiry of the first entitlement period. This clause operates the same as section 114A of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 191 specifies that a worker's entitlement to weekly payments must not be terminated on the ground that the second entitlement period has expired, unless and until the Authority or the self- insurer has made a determination of the worker's entitlement and has given at least 13 weeks notice of the decision following that determination. A worker will continue to be entitled to compensation under clause 162 until the period of notice is given. The giving of notice provides the worker with an opportunity to make financial arrangements in preparation for the termination. Under clause 191(5) the notice requirement does not apply where the worker made their claim for weekly payments within 119 days before the expiry of the second entitlement period. 106

 


 

This ensures that the reduction of payments, under clause 162, is not unduly delayed beyond the expiry of the first entitlement period, in these circumstances. This clause operates the same as section 114B of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 192 requires the Authority or a self-insurer to give a worker written notice before it can reduce or terminate a worker's entitlement to weekly payments under sections 42, 43 or 44, on the grounds that the worker has been convicted for a drink driving, drug driving or specified serious road traffic offence. This is intended to ensure that a worker is given fair warning of the reduction. This clause operates the same as section 114BA of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 193 provides for the payment of outstanding weekly payments and interest in relation to those payments. The clause applies where a worker's entitlements to weekly payments is denied, altered or terminated and the decision to deny, alter or terminate the entitlement is later overturned. In these circumstances the worker is entitled to the outstanding weekly payments which they would otherwise have received were it not for the initial denial, alteration or termination. This ensures that the worker receives fair and just compensation to which they are entitled under the Bill. Interest is payable, due to the fact that the worker is otherwise unable to accrue interest on the amount during this period. Interest will only be payable for a limited period, where a worker does not make an application to the Magistrates Court within 12 months after being notified of a genuine dispute under clause 298(1). This clause operates the same as section 114E of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 194 provides for the payment of outstanding compensation in the form of superannuation contributions and interest in relation to that compensation. The clause applies where a worker's entitlement to superannuation contributions is denied, altered or terminated and the decision to deny, alter or terminate the 107

 


 

entitlement is later overturned. In these circumstances the worker is entitled to the outstanding superannuation contribution which they would otherwise have received were it not for the initial denial, alteration or termination. This amount is referred to as an outstanding superannuation contribution. This ensures that the worker receives fair and just compensation to which they are entitled under the Bill. Interest will only be payable for a limited period, where a worker does not make an application to the Magistrates' Court within 12 months after being notified by a Conciliation Officer that there is a dispute with respect to liability in relation to compensation in the form of superannuation contributions. This clause operates the same as section 114EA of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014 but not before 5 April 2010. Division 4--Claims for compensation for non-economic loss Division 4 sets out procedures for assessment and determination of claims for compensation for non-economic loss. The division operates the same as section 104B of the Accident Compensation Act 1985. However the content of subsections 104B(14) to (23) is not provided for in this Bill because those subsections are transitional in nature and have no application in relation to this Bill. Clause 195 contains a flowchart which sets out the process for lodging a claim for compensation for non-economic loss. Clause 13 provides that a flow chart does not form part of this Bill; and is not intended to have any legal status. Clause 196 Clause 196(1) defines the terms Division 5 claim and relevant date for the purpose of this Division. The term Division 5 claim refers to a claim for compensation for non-economic loss under Division 5 and is included to provide a clear distinction from other types of claim in the Bill. The term relevant date refers to the date on which a claim for compensation for non-economic loss claim is considered to have been made. The relevant date sets in motion the 120 day timeframes within which the Authority or self-insurer must determine a Division 5 claim under clause 201. 108

 


 

Clause 196(2) provides that, for the purposes of Division 4, the determination of liability for the injuries included in a Division 5 claim, should not take into account whether or not the worker has a degree of permanent impairment or an injury which is a total loss. These questions are determined after liability for the injuries has been resolved. This clause operates the same as section 104B(2AA) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 197 sets out the process by which a worker may make a claim for compensation under this Division. It establishes that the normal claims lodgement procedures under clause 20 of the Bill will apply and establishes additional procedural requirements. Clause 197(2) requires that, except for claims for industrial deafness, Division 5 claims must be made no earlier than 12 months after the date of the relevant injury. The time frame ensures that enough time has passed to allow for any permanent impairment to stabilise, which is a requirement for assessment of impairment under clause 55(a). The timeframe also ensures that each injury which is attributable to the same event or circumstances has manifested itself. This is important, as clause 197(4) instructs that the worker must include all injuries arising out of the same event or circumstance in the one claim. Clause 197(3) gives the Authority or a self-insurer a discretion to receive a claim earlier than 12 months from the date of the relevant injury, if the relevant injury has stabilised. Clause 197(4) to (6) require that a worker must include all injuries arising out of the same event or circumstance in a Division 5 claim; a worker can only make one claim for compensation under Division 4 for injuries arising out of the same event or circumstance; and subject to section 204(2)(a), a worker cannot make his or her own claim for compensation where the Authority or a self-insurer has already initiated a claim in respect of injuries arising out of the same event or circumstance. This clause operates the same as sections 104B(1), (1A), (1B), (5A), (5AA) and (5AB) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. 109

 


 

Clause 198 precludes a worker who has commenced a serious injury application under clause 328(2)(b) from making a Division 5 claim until any and all proceedings under Division 2 of Part 7 in respect of that application have been finally determined. This ensures that a worker cannot have concurrent lump sum damages and Division 5 claims. This clause operates the same as sections 104B(1BA) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 199 allows the Authority or a self-insurer in certain circumstances to initiate a Division 5 claim by requesting that a worker attend an independent medical examination under clause 203(1). The clause provides for circumstances where an entitlement to non-economic loss may exist and the worker is unaware of the potential entitlement. This clause operates the same as sections 104B(1C) and (1CA) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 200 allows the Authority or a self-insurer to suspend their determination of a Division 5 claim where they have not received sufficient information to determine the claim or where the worker's injury has not yet stabilised. The suspension of the claim in these circumstances is necessary to ensure that the Authority or self-insurer is able to make an informed and accurate determination as to liability, assessment of impairment and calculation of entitlement. It also ensures that the Authority or self-insurer will not fail to meet the timeframes for determination of a Division 5 under clause 201 because they do not have sufficient information to make the determination. The worker is to be notified of any decision to suspend the claim. This is intended to ensure procedural fairness for the worker and transparency and accountability by the Authority or self-insurer in relation to the decision to suspend the claim. The Authority or self-insurer must remove the suspension by providing the worker with notice, when they receive sufficient information or when the injury has stabilised. This clause operates the same as sections 104B(1D) and (1E) of the Accident Compensation Act 1985 except that this clause clarifies that a claim may be suspended where the Authority or 110

 


 

a self-insurer has insufficient "other information". For example, where the Authority or a self-insurer does not have sufficient factual information to determine the date of injury under clauses 215 of this Bill. Clause 635 makes an equivalent amendment to section 104B(1D) and (1E) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 201 sets out the process by which the Authority or a self-insurer must determine a claim for compensation under this Division. Within 120 days, the Authority or self-insurer must accept liability for each injury included in the claim; obtain an assessment under Division 4 of Part 2 to assess the worker's degree of permanent impairment; determine the worker's degree of impairment for the purposes of Division 5 and Division 2 of Part 7; determine whether the worker has a total loss injury under Schedule 4; calculate the worker's entitlement to compensation under Division 5; advise the worker as to whether the claim is accepted or rejected and of the details of the acceptance; and provide them with any relevant documentation relating to the claim. This process is intended to ensure a consistent, fair and equitable approach to the determination of Division 5 claims. The provision of advice and relevant documentation to the worker is intended to ensure procedural fairness for a worker and transparency and accountability of the Authority or self-insurer in relation to the determination. Under clause 205 a worker is entitled to dispute the Authority or self-insurer's determination under this clause. The 120 day timeframe ensures that claims are determined in a timely manner. Clause 201(2) makes clear that the Authority or self-insurer is not bound by an assessment of impairment obtained under this clause. This ensures that the Authority or the self-insurer has the responsibility for determining the worker's degree of impairment under the Bill. This clause operates the same as section 104B(2) and (2A) in the Accident Compensation Act 1985. However, section 104B(2)(c)(iii) of the Accident Compensation Act 1985 is not contained in this Bill, as it relates to injuries occurring on or after 12 November 1997 and before 20 October 1999. Section 104B(2) and (2A) in the Accident Compensation Act 111

 


 

1985 will continue to apply in relation to injuries occurring before 1 July 2014. Clause 202 establishes that a worker must not commence legal proceedings in relation to a dispute concerning the rejection of liability unless the matter has first been referred for Conciliation under Division 2 of Part 6 and a Conciliation Officer has issued a certificate under clause 273. This aligns with the mandatory conciliation requirement under clause 277 of this Bill. It ensures that matters do not unnecessarily proceed to the courts, which reduces cost implications for parties to a dispute and the scheme. This clause operates the same as section 104B(3) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 203 establishes that the Authority must obtain an assessment under Division 4 of Part 2 of a worker's degree of permanent impairment for the purposes of Division 5 and Division 2 of Part 7. Clause 203(1) provides that a worker must, at the request of the Authority or self-insurer, attend an independent medical examination. Under clause 201(1)(c) the Authority or a self-insurer must take into account the assessments obtained when determining the worker's degree of impairment. The determination of the worker's degree of impairment is then used to calculate the worker's entitlement to compensation under Division 5. The determination may also inform whether a worker is entitled to recover damages under Part 7. Clause 203(3) specifies that the assessment of impairment must take into account all impairments resulting from the injuries entitling the worker to compensation included in the claim for compensation under Division 5. This is necessary because the worker is only entitled to make one claim in relation to injuries arising out of the one event or circumstances, under clause 197(5). This clause operates the same as section 104B(4), (5), (5B) and (5F) in the Accident Compensation Act 1985. However, section 104B(5)(c) of the Accident Compensation Act 1985 is not contained in this Bill as it relates to injuries occurring on after 12 November 1997 and before 20 October 112

 


 

1999. Section 104B(4), (5), (5B) and (5F) in the Accident Compensation Act 1985 will continue to apply in relation to injuries occurring before 1 July 2014. Clause 204 sets out the process which the Authority or a self-insurer must follow where they initiate a claim on behalf of a worker under clause 199. Under clause 204(1), the Authority or self-insurer must give the worker a written statement informing them of the relevant injuries and a statement of their rights in relation to a Division 5 claim for compensation. The provision of this information is intended to ensure that a worker is adequately informed. Section 204(2) provides that a worker must respond to the statement within 60 days. The worker may respond by making a Division 5 claim including any additional injuries that the worker considers also arose out of the same event or circumstances; disputing the statement; or accepting the statement. This response enables the Authority or self-insurer to process the Division 5 claim and to determine the degree of impairment, ensuring all relevant injuries are taken into account. This is intended to ensure procedural fairness for the worker and transparency by the Authority or self-insurer in relation to the initiation of a claim under clause 199. Clause 204(5) provides that where the worker fails to respond, by making a division 5 claim or by disputing the statement, the injuries specified in the written statement will be deemed to be the only injuries arising out of the same event or circumstances. This ensures that a claim which has been initiated under clause 199 can still be resolved in circumstances where the worker fails to formally respond to the statement of injuries. This clause operates the same as sections 104B(5C), (5D), (5DA), (5DB) and (5E) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring prior before 1 July 2014. Clause 205 provides that a worker must respond to the Authority or self- insurer's advice under clause 201 of this Bill within 60 day of receiving the advice. In the worker's response they must advise the Authority or self-insurer whether or not they accept or dispute the liability determination; the determinations of impairment and total loss; and/or the calculation of the entitlement to compensation. 113

 


 

This clause operates the same as sections 104B(6), (6A) and (6B) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 206 sets out the process by which the Authority or a self-insurer must determine a claim for compensation under this Division where the initial decision to reject liability for an injury is varied by a court or by agreement between the worker and the Authority or self-insurer. Within 90 days, the Authority or self- insurer must obtain an assessment under Division 4 of Part 2 to assess the worker's degree of permanent impairment; determine the worker's degree of impairment for the purposes of Division 5 and Division 2 of Part 7; determine whether the worker has a total loss injury under Schedule 4; calculate the worker's entitlement to compensation under Division 5; advise the worker as to whether the claim is accepted or rejected and of the details of the acceptance; and provide them with any relevant documentation relating to the claim. This process is intended to ensure a consistent, fair and equitable approach to the determination of Division 5 claims. The provision of advice and relevant documentation to the worker is intended to ensure a fair procedure for the worker, and transparency and accountability by the Authority or self-insurer in relation to the determination. Under subclause (3) a worker is entitled to dispute the Authority or self-insurer's determination of the degree of permanent impairment and total loss under this clause. The 120 day timeframe ensures that claims are determined in a timely manner. Clause 206(2) makes clear that the Authority or self-insurer is not bound by an assessment of impairment obtained under this clause. This ensures that the Authority or the self-insurer is responsible for determining the worker's degree of impairment under the Bill. Clause 206(3) provides that a worker must respond to the Authority or self-insurer's advice under this clause within 60 days of receiving the advice. In their response they must advise the Authority or self-insurer whether or not they accept or dispute the determinations of impairment and total loss; and/or the calculation of the entitlement to compensation. 114

 


 

Clause 206(4) ensures that where the degree of impairment and the calculation of entitlement is accepted by the worker, the payment of entitlement is made in a timely manner. This clause operates the same as sections 104B(7), (7A), (7B) and (8) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 207 provides that where a worker disputes the Authority or self- insurers determination of their degree of impairment or total loss, the Authority or self-insurer must refer the medical question to a Medical Panel for its opinion. Disputes regarding assessment of impairment and determinations of total loss are referred to a Medical Panel as they relate strictly to medical questions and are appropriately dealt with by medical specialists. This clause 205 operates the same as sections 104B(9), (9A), (10), (10A) and (10B) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 208 provides that determinations or opinions as to the degree of permanent impairment of a worker or whether a worker has an injury which is a total loss mentioned in the Table in Schedule 4 are not subject to merit review by any court or tribunal. This clause 205 is clause operates the same as section 104B(12) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 209 empowers the Minister to give directions in relation to the procedures for the determination of Division 5 claims. This clause 205 is clause operates the same as section 104B(13) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. 115

 


 

Division 5--Compensation for non-economic loss Division 5 sets out how a worker's entitlement to compensation for non- economic loss is calculated. The Division operates the same as Division 2B of Part IV in the Accident Compensation Act 1985. The content of sections 98 and 98A are not provided for in this Bill as those provisions apply only in relation to injuries occurring prior to 12 November 1997. Clause 210 defines the terms Compensation law, further injury, prior hearing loss, prior injury, relevant date and spinal impairment for the purposes of this Division. The term Compensation law applies in relation to the definition of prior hearing loss. The term further injury applies in relation to the provisions for calculating entitlements to compensation under clause 213 of this Bill. The term prior hearing loss applies in relation to the maximum limits on compensation under clause 217 of this Bill. The term relevant date refers to the date upon which compensation is to be calculated. The term spinal impairment means the whole person impairment derived from section 3.3 of Chapter 3 of the AMA Guides. The definitions in this clause are intended to have the same operation as the equivalent definitions in sections 89(1) and 98C(1A) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 211 sets out how compensation is calculated for permanent impairment, other than psychiatric impairment and industrial deafness. An injured worker who sustains a permanent injury or illness where the degree of impairment is above the required 10% threshold is entitled to a lump sum payment calculated in accordance with this section. The amount of compensation payable to an injured worker is calculated based on the degree of the injured worker's permanent impairment, which is assessed in accordance with the procedures outlined in subdivisions 2 to subdivision 5 of Part 2 and represented as a 116

 


 

percentage score, based on the level of impairment. The provisions are intended to ensure that workers receive consistent, fair and equitable compensation for non-economic loss to which they are entitled under this Bill. This clause operates the same as subsections 98C(1) and (2) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 212 sets out how compensation is calculated for permanent impairment psychiatric impairment. A worker who sustains a permanent psychiatric impairment where the degree of impairment is determined above the required 30% threshold is entitled to a lump sum payment calculated in accordance with this section. The amount of compensation payable to an injured worker is calculated based on the degree of the injured worker's permanent psychiatric impairment, which is assessed in accordance with the procedures outlined in Subdivision 2 and Subdivision 4 of Part 2 and represented as a percentage score, based on the level of impairment. The provisions are intended to ensure that workers receive consistent, fair and equitable compensation for non-economic loss to which they are entitled under this Bill. This clause operates the same as section 98C(3) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 213 sets out how compensation is calculated in the case of further injury in respect of industrial deafness. A worker who sustains a permanent psychiatric impairment where the degree of impairment is determined above the required threshold is entitled to a lump sum payment calculated in accordance with this section. The amount of compensation payable to an injured worker is calculated based on the degree of the injured worker's permanent further injury industrial deafness impairment, which is assessed in accordance with the procedures outlined in subdivisions 2 to subdivision 5 of Part 2 and represented as a percentage score, based on the level of impairment. The provisions are intended to ensure that workers receive consistent, fair and equitable compensation for non-economic loss to which they are entitled under this Bill. 117

 


 

This clause operates the same as section 98C(3A) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 214 sets out the compensation payable where an injury results in the loss of a foetus. Section 214(2) defines, for the purpose of this provision, that foetus means the "conceptus beyond the sixteenth week of development". This definition is necessary to ensure a consistent approach to payment of compensation in this situation. This clause operates the same as sections 98C(4) and (5) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 215 provides for a deemed date of injury for injuries that occur by way of gradual process over time, other than industrial deafness injuries. The deeming of an injury date in these circumstances reflects the difficulty in ascribing a precise date to such injuries and is intended to ensure a consistent approach to the determination of the date of injury and, therefore, a consistent and equitable approach to the calculation of entitlements. This clause operates the same as section 98C(6A), 98(6B) and 98C(6C) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 216 makes clear that a worker is not entitled to receive duplicate lump sum payments under this Division; the relevant provisions of the Accident Compensation Act 1985; or the relevant provisions of the Workers Compensation Act 1958 for the same impairment, loss of bodily function, disfigurement, brain damage or total loss resulting from an injury or injuries which occurred by way of gradual process over time. This clause operates the same as section 98DA in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 217 limits the maximum lump sum payment payable under this Division in relation to an injury. Clause 217(3) empowers the Authority or self-insurer to take into account the compensation paid for the prior injury or prior hearing loss when determining the amount of compensation 118

 


 

payable under this Division. This ensures that a worker is not entitled to a double payment in relation to the same injury. This clause operates the same as section 98C(7), (8), (9) and (9A) in the Accident Compensation Act 1985. However, this clause clarifies that if a worker suffers an injury which would entitle the worker to compensation for non-economic loss of more than one kind, that the maximum amount in compensation for non-economic loss that the worker can receive under section 98C(8) and clause 630(4) is $555 350. This change reflects the legislative intention and current operational practice. Clause 630 makes an equivalent amendment to section 98C(7), (8), (9) and (9A) of this Bill, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 218 provides that compensation under Division 5 is not payable after the death of a worker. This clause operates the same as section 98C(10) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 219 confirms that a worker is not entitled to receive more than the maximum amount payable under this Division. This ensures that compensation is consistent for all workers who are entitled to the maximum payment. This clause operates the same as sections 98C(11) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 220 confirms that payments calculated in accordance with this Division are paid as a lump sum. This clause operates the same as sections 98D in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 221 and Schedule 4 of this Bill establish an alternative method for calculating entitlements to compensation under this Division, which may apply where a worker's injury is a total loss injury under Schedule 4. The clause provides that where a worker has suffered a total loss injury and the amount of compensation calculated under this section and Schedule 4 is higher than the amount calculated under section 211, the worker is entitled to the higher amount. Clause 221(4) sets out the maximum 119

 


 

amount payable where the worker suffers, on the same occasion, more than one of the injuries mentioned in Schedule 4. This ensures that workers are entitled to receive fair and equitable compensation under this Bill. This clause and Schedule 4 operate the same as sections 98E and Schedule 3B in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Division 6--Rehabilitation services prior to acceptance of claim Clause 222 permits the Authority or a self-insurer to pay the reasonable costs of rehabilitation services provided to a worker before an entitlement to compensation is established. The provision is intended to encourage workers to seek rehabilitation services prior to the making or acceptance of a claim for compensation. It is considered that the early provision of these services may improve rehabilitation outcomes for workers. The Authority or self-insurer must give a worker notice before discontinuing payments for such services. The notice is intended to ensure procedural fairness for the worker, and transparency and accountability by the Authority and self-insurer in relation to the decision to discontinue payments. This clause operates the same as section 99A of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Division 7--Compensation for medical and like services This Division provides that the Authority, a self-insurer or the employer is liable to pay compensation for the reasonable costs of specified services which a worker or another person incurs as a result of the worker's injury. The Division operates the same as Division 2B of Part IV of the Accident Compensation Act 1985. Clause 223 defines the terms family member, parent, severe injury, supported accommodation, reasonable costs and Order of the Governor in Council for the purposes of this Division. The term family member refers to the members of a worker's family who are entitled to be compensated for the reasonable costs of counselling services under clause 224 of this Bill. 120

 


 

The term parent is further defined for the purposes of the definition of family member under this clause. The term is defined to include a person who has day to day care or control of a worker. The term severe injury refers to an injury, in relation to which, a worker or the family members of a worker are entitled to be compensated for the reasonable costs of counselling services under clause 224 of this Bill. The term supported accommodation refers to specified types of supported accommodation facilities, for which a worker may be entitled to be receive compensation under clause 229 of this Bill. The term reasonable costs is referred to throughout this division, to specify the amount of compensation which the Authority, a self-insurer or an employer is liable to pay in relation to medical and like expenses incurred by a worker or their dependants. In assessing what costs are reasonable the definition requires consideration of the necessity of the service. The term Order of the Governor in Council refers to an Order made under the definition of reasonable costs which specifies maximum amounts or methods for determining maximum amounts for the purposes of determining whether a cost is reasonable under that definition. The definitions in this clause operate the same as the equivalent definitions in section 99AAA in the Accident Compensation Act 1985. However, the definition of supported accommodation in this Bill references the Supported Accommodation Services (Private Proprietors) Act 2010. The change aligns the definition with the definition in the Transport Accident Act 1986. Clause 630 makes an equivalent amendment to section 99AAA of the Accident Compensation Act 1985. The equivalent definitions in section 99AAA of the Accident Compensation Act 1985 which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 224 provides that the Authority, a self-insurer or the employer is liable to pay compensation for the reasonable costs of the specified services referred to which a worker or another person incurs as a result of the worker's injury. For example, the costs of medical services; occupational rehabilitation services; and 121

 


 

household help services. Where the injury is severe or results in death, this liability extends to counselling services. The clause ensures that a worker or another person is entitled to fair and equitable compensation for costs they incur as a result of an injury. The provisions of medical and occupational rehabilitation type services is also intended to assist the worker achieve a safe and sustainable return to work. Clause 224(4) provides that the worker is entitled to choose the provider of the relevant service other than an occupational rehabilitation service. It is considered that a worker is likely to have better health outcomes if they receive services from a provider of their own choice. This clause continues the operation of sections 99(1), (2) and (3) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 225 provides that where an employer provides an injured worker with gratuitous medical and like services the employer is deemed to have discharged its liability to pay an excess under section 72(1)(c) of the Bill, to the extent of the value of the services provided. This ensures employers are encouraged, where possible, to provide such services to injured workers. This clause continues the operation of sections 99(4) and (5) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 226 ensures that payments of compensation for medical and like services are made to the person lawfully entitled to the payment. Where, the service provider has not yet been paid for the services, they are legally entitled to the payment and should receive the payment. Where an injured worker pays for services up front, they should be reimbursed for the reasonable costs of the service. The clause also ensures that where a service is provided free of charge or at a lower cost, due to the operation of a prior agreement, the worker or their dependants should still be entitled to the balance of the reasonable costs. 122

 


 

This clause operates the same as sections 99(6), (7), (8) and (9) in the Accident Compensation Act 1985, which will continue to apply relation to injuries occurring before 1 July 2014. Clause 227 provides that an injured worker or their dependants cannot be pursued for reimbursement of costs where the Authority self- insurer or an employer is liable for the costs of the service; or where the Authority has made a determination in relation to a service provider under Division 6 of Part 13. An injured worker may be pursued for reimbursement of costs, where the worker continues to use that service provider after they have been notified of the determination made by the Authority. This provision is intended to protect workers and their dependants from incurring expenses where a provider is suspected of or found guilty of an offence which disqualifies them from acting as an approved provider for the Authority. This clause operates the same as sections 99(10) and (11) in the Accident Compensation Act 1985, which will continue to apply relation to injuries occurring before 1 July 2014. Clause 228 provides that the Authority, self-insurer or employer is not liable to pay the cost of medical and like services outside Australia, unless prior approval has been granted. This ensures that the Authority has an opportunity to assess whether the costs of those services are reasonable costs, within the meaning of clause 223 of this Bill, prior to the provision of the services. The clause does not apply where a claimant satisfies the Authority, self-insurer or an employer that, because of an emergency situation, it was necessary for the services to be provided immediately and it was not practical to obtain prior approval. This clause operates the same as section 99AA in the Accident Compensation Act 1985, which will continue to apply relation to injuries occurring before 1 July 2014. Clause 229 clarifies that the Authority, a self-insurer or a worker is not liable for accommodation and specified living expenses unless the provision of these things is a medical service or a hospital service, except in relation to a minor or a person on their first discharge from a rehabilitation hospital to specified accommodation. 123

 


 

This clause operates the same as section 99(12), (13), (14), (15) and (16) in the Accident Compensation Act 1985, except that this clause legislatively states the maximum amount which a worker may be required to contribute towards their supported accommodation expenses. The amount is equal to the maximum currently set in relation to the Accident Compensation Act 1985 by Order in Council. The contribution amount is indexed annually under clause 545, but clause 229(6) provides that the Governor in Council may declare that the indexation does not apply to the amount by publishing an Order in the Government Gazette. This provision aligns with requirements under the Transport Accident Act 1986. Clause 530 makes an equivalent amendment to sections 99(12), (13), (14), (15) and (16) in the Accident Compensation Act 1985, which will continue to apply relation to injuries occurring before 1 July 2014. Clause 230 sets out the process by which a worker is entitled to receive occupational rehabilitation services. The Authority, employer or self-insurer can provide a list of approved providers of particular services from which the worker may choose a provider. If a list is not given to the worker, the worker can choose an approved provider of the worker's choice. If a worker does not make a choice, an approved provider can be chosen for them. This clause operates the same as section 99AB in the Accident Compensation Act 1985, which will continue to apply relation to injuries occurring before 1 July 2014. Clause 231 outlines the circumstances in which the Authority or self-insurer is liable to pay the reasonable costs of, or contribute to the reasonable cost of modifying an injured worker's home or car. This provision recognises that a worker's injury or illness may render their home or car (or parts of their home or car) unsuitable and that the cost of making required modifications can be significant. Clauses 231(4) and (6) specify a non- exhaustive list of factors that must be considered by the Authority or a self-insurer when determining the reasonable costs or amount of the contribution under this clause. This clause operates the same as section 99AC in the Accident Compensation Act 1985, which will continue to apply relation to injuries occurring before 1 July 2014. 124

 


 

Clause 232 provides that compensation for medical and like services does not continue indefinitely and, in most cases, will cease either 52 weeks after a worker's entitlement to weekly payments ends or, if a worker is only entitled to compensation under Division 6 of Part 5, then 52 weeks after the worker's entitlement to medical and like compensation arose. The clause specifies the circumstances where medical and like service will be continued beyond the mandated period. For example, where an injured worker has returned to work and requires surgery. The Authority or a self-insurer must give the worker 28 days written notice before ceasing compensation. This is intended to ensure procedural fairness, transparency and accountability in relation to the Authority or self-insurer's decision. It also provides the worker with an opportunity to make financial arrangements in preparation for the cessation. This clause also confirms that a worker who has recovered pecuniary loss damages under Part 7 or under equivalent provisions of the Transport Accident Act 1986 or who has received a settlement under Division 9 in respect of their injury is entitled to receive compensation under this clause. This clause operates the same as section 99AD in the Accident Compensation Act 1985, which will continue to apply relation to injuries occurring before 1 July 2014. Clause 233 provides that the Authority or a self-insurer has a discretionary power to terminate payment for professional services (which includes medical and like services) where it considers that those professional services have been obtained fraudulently by the worker. A termination of compensation under this clause takes effect on the date the Authority or self-insurer determines that the services were obtained fraudulently. The worker must be provided with notice of the determination after the determination is made. This clause operates the same as section 99AE in the Accident Compensation Act 1985, which will continue to apply relation to injuries occurring before 1 July 2014. 125

 


 

Division 8--Compensation for death of worker Division 8 provides that the Authority or a self-insurer liable to pay compensation to the dependants of a worker who dies as a result of a work related injury. The Division operates the same as Division 2 of Part IV of the Accident Compensation Act 1985. Clause 234 defines the terms child, corresponding law, dependent child, dependent partner, orphan child and partially dependent partner for the purposes of Division 8 of Part 5, to make clear who has what entitlement under this definition. Clause 234(3) and (4) contain provisions which apply to the determination of whether a partner is a dependant partner for the purposes of this Division. This clause operates the same as section 92A(1), (2) and (2A) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 235 set out how compensation for a death of a worker is to be determined. Where a claim relates to unrepresented dependants, a person under a disability or minors (including unborn children), a court will determine the dependant/s entitlement to compensation under this section. Court oversight of situations where a claimant has a particular vulnerability is considered an appropriate mechanism to protect the claimant's interests. Otherwise, the Authority will determine who is a dependant and how the lump sum payment is to be distributed. This allows the parties, in appropriate cases, the flexibility of being able to negotiate a settlement of the claim prior to commencing court proceedings. However, if the parties cannot reach agreement, or if a claimant otherwise wishes to have the court determine their claim, they may commence proceedings. This clause operates the same as section 92A(3) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 236 sets out the amounts of lump sum compensation which the dependant partners and children of a deceased worker are entitled to receive. Where there is more than one dependant, the clause specifies the total lump sum benefit should be divided between these dependants. It is intended that lump sum benefits under this clause should compensate dependants, for the loss of 126

 


 

financial support resulting from the worker's death. For this reason, lump sum benefits are distributed between all dependants, regardless of their individual financial situation or responsibilities. This clause operates the same as section 92A(4), (5), (6), (7), (8) and (8A) of the Accident Compensation Act 1985, except that this clause ensures that where the lump sum is divided between numerous dependant partners, the total amount provided will always equal the maximum lump sum amount. The change makes clear the legislative intention and confirms current practice. Clause 628 makes an equivalent amendment to section 92A(4), (5), (6), (7), (8) and (8A) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 237 Clause 237(1) ensures that lump sum compensation is payable to partially dependant partners of a deceased worker in circumstances where a worker leaves one or more partially dependant partners. The clause provides that where there is one or more partially dependant partners, the Authority, a self- insurer or a court is responsible for determining how much lump compensation each dependant partner or child and each partially dependant partner should receive. It is intended that the Authority, self-insurer or a court, in determining the compensation payable, should take into account the specific circumstances of each claimant. Similarly, clause 237(2) ensures that where a worker leaves no dependent partners, children or partially dependent partners, the Authority or self-insurer may determine that lump sum compensation is payable to any other person who is dependent on the worker's earnings. The Authority, a self-insurer or a court is responsible for determining how much lump compensation this person should receive and may not award more than the total lump sum amount. It is intended that the Authority, self-insurer or a court, in determining the compensation payable, should take into account the specific circumstances of each claimant. Clause 237(3) provides that where a deceased worker was under 21 year of age at the time of their injury and were contributing to the maintenance of the family home, their family members 127

 


 

will be deemed to have been partially dependant for the purposes of this clause. This clause operates the same as section 92A(8B), (9) and (10) in the Accident Compensation Act 1985. However this clause clarifies that partially dependant partners of deceased workers are entitled to share in lump sum compensation, regardless of whether or not there are other fully dependent partners. This reflects the legislative intention and current operational practice. Clause 628 makes an equivalent amendment to sections 92A(8B), (9) and (10) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 238 specifies that lump sum compensation payable under this Division to minors or people with disabilities must be paid to a court-appointed trustee. This ensures that the lump sum compensation payment can be properly managed, in circumstances where the worker is unable to manage the payment themselves, due to their age or disability. This clause operates the same as section 92A(11) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 239 This clause entitles a deceased worker's dependants to receive interest in relation to their lump sum compensation for the period between when their claim for compensation is lodged and when their entitlement to compensation is determined. This is intended to reflect the fact that the dependants are otherwise unable to accrue interest on the amount during this period. This clause operates the same as section 92A(12) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 240 This clause allows for a non-dependent family member of a deceased worker to be reimbursed for expenses incurred as a result of the death of a worker'. The compensation payment is determined by the court, and is only be available where the worker has no dependants. This clause recognises 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 128

 


 

result of having to incur reasonable expenses associated with the worker's death (e.g. the cost of administering the deceased worker's estate). This clause operates the same as section 92AA of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 241 allows for compensation in the form of weekly pensions to be paid to the dependants of a deceased worker. Pensions are payable to dependant partners for a period of three years following the death of the worker and to dependent children until they are no longer eligible. The amount of weekly pension payable to a dependent partner of a deceased worker is calculated as follows-- for the first 13 weeks after date of death--95% of the worker's pre-injury average weekly earnings, to a maximum of twice the state weekly earnings; and from 14 weeks to three years after date of death--50% of the worker's pre-injury average weekly earnings, to a maximum of to a maximum of twice the state weekly earnings. The amount of weekly pension payable to a dependent child of a deceased worker is calculated as follows-- from 14 weeks after the death of the worker until the child turns 16 (and between 16 to 25 years if the child is a full time student or full time apprentice)--5% of the worker's pre-injury average weekly earnings; for more than five children--up to a maximum of 25% of the worker's pre-injury average weekly earnings, to be shared amongst the children. Children do not receive any pension for the first 13 weeks following the death of a worker because this is provided for in the dependant partner's pension. 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). Clause 241 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 129

 


 

the end of the calendar year in which the child turns 25 years, whichever occurs first. This clause operates the same as section 92B of the Accident Compensation Act 1985, except that this clause confirms that the total amount of weekly pensions payable to the dependant partner, dependent partners and a dependent child or children of a worker must not exceed twice the State average weekly earnings. This change makes clear the legislation intention and reflects current practice. Clause 629 makes an equivalent amendment to section 92B of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 242 sets out procedural rules governing the payment of the weekly pensions provided for in section 241. This section aims to ensure weekly pensions are paid in a timely manner and to the correct person. This clause operates the same as section 92C in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 243 provides for a provisional payment regime in respect of the death of a worker. The clause is intended to allow a deceased worker's family to obtain payments more quickly in the period immediately after the worker's death. This recognises that delays in receiving compensation 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 decision of the Authority or a self-insurer to make a provisional payment is discretionary. In considering whether a person "may be entitled to compensation", the Authority or a self-insurer should consider whether that person satisfies certain criteria such as whether it appears that the worker's death was work-related and whether a person is a dependant of the deceased worker. 130

 


 

This clause operates the same as section 92D in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Subdivision 1--Settlements in specific circumstances This Subdivision allows a worker who meets the relevant eligibility criteria to voluntarily settle their entitlement to compensation. This means that a worker will receive a one off lump sum, in place of any future weekly benefit entitlements. This Subdivision operates the same as Division 3A in the Accident Compensation Act 1985. Sections 115 to 116C of the Accident Compensation Act 1985 are not contained in the Bill as they apply only in relation to injuries occurring before 1 July 2014. Clause 244 specifies the circumstances in which a worker may apply for voluntary settlement of their entitlements under this Subdivision. The worker must be receiving or be entitled to receive compensation; be over the age of 55; have no current work capacity; be likely to continue indefinitely to have no current work capacity; and have been in receipt of weekly payments for at least 130 weeks. These thresholds to eligibility are intended to ensure that settlement under this Division is only available where a worker is unlikely to be able to return to work ever again. This clause operates the same as section 117 of the Accident Compensation Act 1985, except that sections 117(a) and 117(b) of the Accident Compensation Act 1985 have not been replicated in this Bill because they do not apply to settlements for injuries occurring on or after 1 July 2014. Section 117 of the Accident Compensation Act 1985 will continue to apply in relation to injuries occurring before 1 July 2014. Clause 245 establishes that a worker who meets the eligibility requirements under clause 244 has a right to apply for settlement. This clause operates the same as section 117A of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. 131

 


 

Clause 246 prescribes the method for calculating a settlement amount. The provision is intended to ensure workers are entitled to receive fair and equitable compensation under the Bill. This clause operates the same as section 117B of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Subdivision 2--Other settlements This Subdivision allows for other settlement regimes to be established via regulations and Orders in Council. The Subdivision operates the same as Subdivision 4 of Division 3A in Part IV of the Accident Compensation Act 1985. Clause 247 provides that a worker may apply for settlement under this Subdivision if they are entitled to compensation and they meet the eligibility criterion set out in the regulations. This clause operates the same as section 118 of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 248 establishes that a worker who meets the eligibility requirements under clause 247 has a right to apply for settlement. This clause operates the same as section 118A of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 249 establishes that the settlement amount must be calculated in accordance with the method set out in an Order in Council under section 250. This clause operates the same as section 118B of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 250 provides for the making of an Order in Council outlining the method for calculation for settlement amounts for the purposes of this Subdivision. This clause operates the same as section 118C of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. 132

 


 

Subdivision 3--Application procedure Subdivision 3 prescribes application procedures which apply to voluntary settlements under this Division, including specifying time limits that apply to certain procedures. The Subdivision also provide for the provision of financial and legal advice to applicants for settlements, the adjustment of settlement amount offers with the provision of new legal or financial advice in certain circumstances, the withdrawal of applications, the preclusion of further entitlements once certain settlements are accepted, the waiving of time limits in special circumstances, and the issuing of Ministerial directions. The Subdivision operates the same as Subdivision 5 of Division 3A in Part IV of the Accident Compensation Act 1985. Clause 251 requires that, before applying for a settlement, a worker must first give the Authority or a self-insurer a written expression of interest. It is intended that the expression of interest will assist the Authority or self-insurer to make an initial determination as to the initial eligibility of an injured worker to apply for a voluntary settlement. This clause operates the same as section 119 in the Accident Compensation Act 1985, except sections 119(3), 119(4) and 119A are not included in the Bill as they are transitional provisions which have no application in relation to this Bill. Section 119 in the Accident Compensation Act 1985 will continue to apply in relation to injuries occurring before 1 July 2014. Clause 252 provides that the Authority or self-insurer must respond to an expression of interest submitted by an injured worker. If the Authority or self-insurer is of the opinion that the worker is eligible to apply for settlement the response must state this and outline information relevant to the settlement such as the amount of settlement the worker is entitled to claim. The response must also inform the worker that an application will not be granted unless they seek independent financial and legal advice and that the Authority or self-insurer will pay the reasonable costs of this advice. The provision of this information and the requirement that a worker seek financial and legal advice ensures that a worker is well informed about the potential advantages and disadvantages of settling their entitlement. If the Authority or self-insurer is of the opinion that the worker is not eligible, the response must state this and state the reasons for the opinion. This is intended to ensure 133

 


 

procedural fairness for a worker, and transparency and accountability of the Authority or self-insurer in making a decision. This clause operates the same as section 119B in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 253 entitles a worker to apply for settlement where they have been given a response from the Authority or self-insurer stating that they are eligible. This clause operates the same as section 119C in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 254 establishes that if a worker wishes to apply for settlement, they must do so within 6 months from the date on which they receive a response from the Authority or self-insurer stating that they are eligible. This timeframe ensures that the information given by the worker and the subsequent calculation of the worker's settlement amount is still current when the application for settlement is made. This clause operates the same as section 119D of the Accident Compensation Act 1985. However section 119D(2) has not been replicated in the Bill as it does not apply to settlements for injuries occurring on or after 1 July 2014. Section 119D of the Accident Compensation Act 1985 will continue to apply in relation to injuries occurring before 1 July 2014. Clause 255 provides that the Authority or self-insurer must respond to the workers application for settlement and specify whether or not settlement is offered. Where settlement is offered, the response must specify the settlement amount. Where settlement is not offered, the response must state the reasons why settlement is not offered. This section continues the operation of section 119E in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. 134

 


 

Clause 256 establishes that if a worker wishes to accept an offer of settlement, they must do so with 28 days from the date on which they receive the response from the Authority. This clause operates the same as section 119F in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 257 establishes that the Authority or self-insurer must make settlement payment within a timeframe specified in a Ministerial direction. The clause also provides that a settlement payment is a capital sum for loss of earning capacity and so, as with the case of an award of damages for loss of earning capacity, a settlement payment is not subject to taxation. This clause operates the same as section 119G in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 258 allows for the adjustment of settlement amount offers, after the issue of a response under clause 252 and prior to the making of a settlement payment under clause 257, where the Authority or self-insurer becomes aware that the amount offered does not comply with Subdivisions 1 or 2. This clause is intended to provide the Authority and self-insurer with flexibility to amend a settlement amount where changing circumstances mean that the settlement amount specified in the initial response has become inaccurate during the intervening period. It is intended to ensure that a worker receives fair and equitable compensation to which they are entitled under the Bill. The Authority or self-insurer must notify the worker after becoming aware that the proposed settlement amount does not comply with Subdivisions 1 or 2 and, in limited circumstances, must allow them to seek further independent financial or legal advice at the expense of the Authority or self-insurer. The provision of this information and the allowance for financial and legal advice ensures that a worker is well informed about the potential advantages and disadvantages of settling their entitlement. It also is intended to ensure procedural fairness to a worker, and transparency and accountability by Authority or self-insurer in relation to their decision. 135

 


 

This clause operates the same as section 119H in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 259 allows a worker to withdraw an application for settlement at any time before an offer is made. This clause operates the same as section19I in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Section 119I(2) has not been replicated in the Bill as it does not apply in relation to settlements for injuries occurring on or after 1 July 2014. Section 260 allows an offer to be withdrawn by the Authority or self-insurer where a worker's application for a settlement under Subdivision 1 or 2 has involved reckless or fraudulent misrepresentations relating to their circumstances. Such circumstances may include where a worker is currently serving a prison sentence that would disentitle them to weekly payments under 177. This clause operates the same as section 119IA in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Section 119IA(3)(a) has been omitted from the Bill as it does not apply in relation to settlements for injuries occurring on or after 1 July 2014. Clause 261 establishes that a worker who has received a settlement under Subdivision 1 or 2 is not entitled to any further compensation or damages in respect of the injury. This ensures that a worker cannot receive a double payment of compensation in relation to the same loss. The clause does not apply in relation to compensation under Division 7 of Part 5 because the settlement amount does not compensate a worker for medical and like expenses which they have incurred as a result of their injury. This clause operates the same as section 119J in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Sections 119J(1) and (2) have not been replicated in this Bill as they do not apply in relation to settlements for injuries occurring on or after 1 July 2014. 136

 


 

Clause 262 allows the Authority or self-insurer to extend or waive time limits prescribed in Subdivision 1 or 2 where special circumstances arise which result in the worker's failure to meet a time limit. This clause operates the same as section 119K in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. Clause 263 allows the Minister to give directions on a range of matters relating to the voluntary settlements under this Division. This clause operates the same as section 119L in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. PART 6--DISPUTE RESOLUTION Part 6 governs the dispute resolution processes for disputes that arise under the Accident Compensation Act 1985 and the Bill. The provisions are largely the same in substance as those in Part III of the Accident Compensation Act 1985. The provisions in Part 6 will apply to all disputes on or from 1 July 2014, irrespective of the date of injury that relates to the dispute. Part III of the Accident Compensation Act 1985 will be repealed by the Bill. Division 1--Jurisdiction Clauses 264, 265 and 266 and 267 contain the general rules conferring jurisdiction for disputes in connection with statutory benefits and the determination of serious injury under the Bill, the Accident Compensation Act 1985 and the Workers Compensation Act 1958. Clauses 264(1) and 265(1) confer exclusive jurisdiction for these disputes on the County Court, and clause 266(1) confirms that the Magistrates' Court has a like jurisdiction, unless expressly excluded by the Act. Unless otherwise specified, the provisions are intended to prevent proceedings being brought directly in the Supreme Court. The rationale for limiting the jurisdiction of the Supreme Court is to ensure that disputes are heard in the most efficient and accessible forum. Clauses 264, 265 and 266 and 267 re-enact sections 39, 40 and 43 of the Accident Compensation Act 1985. 137

 


 

Clause 264 sets out the jurisdiction of the County Court under the Accident Compensation Act 1985 and the Bill. Subclause (3) confirms that proceedings cannot be brought in respect of any question or matter arising out of decisions of the Authority under clause 337 or sections 134AB(20), 134AB(20A), 135(6A) or 135A(6B) of the Accident Compensation Act 1985. These relate to the Authority's discretion to refuse to consent, where proceedings cannot otherwise be brought due to the operation of the Act. The content of this clause is the same as section 39 of the Accident Compensation Act 1985, with the exception of the following which are referenced in subclauses (4) and confirm that the exclusive jurisdiction of the County Court does not apply in respect of-- Division 9B of Part IV of the Accident Compensation Act 1985 (Actions by workers with Asbestos related conditions). Only the Supreme Court has jurisdiction over proceedings under this division. Division 9 of Part 5 (Voluntary Settlements) of the WIRC Bill. Judicial review is available through the Supreme Court. Clause 357 (Actions by terminally ill workers or workers with asbestos related conditions). Only the Supreme Court has jurisdiction in relation to an expedited application under this provision. Part 10 which contains the content of the Accident Compensation (WorkCover Insurance) Act 1993, to be repealed by this Bill. Jurisdiction is governed by specific dispute resolution provisions in that Part. Clause 265 sets out the jurisdiction of the County Court under the Workers Compensation Act 1958. It re-enacts section 40 of the Accident Compensation Act 1985 and confirms that the Supreme Court has jurisdiction to hear and determine any question or matter relating to whether the liability to pay compensation arises under the Bill, the Accident Compensation Act 1985 or the Workers Compensation Act 1958. The content of section 40(1)(a)(i) has been omitted as it is captured by clause 265(1)(a)(ii). 138

 


 

Clause 266 sets out the jurisdiction of the Magistrates' Court under the Accident Compensation Act 1985, the Workers Compensation Act 1958, and the Bill. Subclause (2) confers specific jurisdiction on the Magistrates' Court with respect to requests for access to information under clause 240 or section 92AA of the Accident Compensation Act 1985 and subclause (3) confirms that the Magistrates' Court has exclusive jurisdiction in relation to applications for reimbursement for non-dependant family members of a deceased worker. These provisions are intended to ensure workers and claimants utilise an efficient and relatively low cost dispute resolution system. This clause re-enacts section 43 of the Accident Compensation Act 1985. Clause 267 complements clause 266(1) and confirms that the Bill applies to the Magistrates' Court when exercising jurisdiction under Part 6 as if a reference to the County Court were a reference to the Magistrates' Court. This clause re-enacts section 43(3) of the Accident Compensation Act 1985. Clause 268 limits the circumstances in which evidence of things said, and any admission or agreement made at or during a conciliation of a dispute, are admissible in proceedings. The clause re-enacts section 61A of the Accident Compensation Act 1985. Clause 269 clarifies 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 Bill, the Accident Compensation Act 1985, or the Workers Compensation Act 1958; proceedings claiming compensation or any other payment under the Bill, the Accident Compensation Act 1985, the Workers Compensation Act 1958; common law proceedings seeking leave to claim damages in accordance with the Bill or the Accident Compensation Act 1985; common law proceedings claiming damages; and any other matter arising, under, in accordance with the Bill or the Accident Compensation Act 1985. 139

 


 

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 to ascertain the worker's full medical history. The clause re-enacts section 48A of the Accident Compensation Act 1985, with modification to include express reference to "evidence". The Harman principle does not relate to evidence, however the reference has been included in this clause to clarify the principle that evidence is able to be used in proceedings, once it is in the public domain. Section 44(3) of the Accident Compensation Act 1985 which deals with the same subject has been omitted as a consequence. The changes are not intended to alter the operation of the provisions or the position at common law. Clause 269 is not intended to override the secrecy provisions in clauses 412, 588 and 595. Clause 270 limits the use of information given to a Panel in criminal and civil proceedings. This ensures information given to a Panel is not used for an ulterior purpose in unrelated proceedings which may prejudice a worker. This provision re-enacts section 65(3) of the Accident Compensation Act 1985. Clause 271 confirms that certificates and reports of Medical Panels are admissible in evidence in proceedings under the Bill or Part VBA of the Wrongs Act 1958. This complements the provisions of the Evidence Act 2008, the Civil Procedure Act 2010 and the relevant rules of court. The provision is re-enacts section 48 of the Accident Compensation Act 1985. 140

 


 

Clause 272 provides for the competence and compellability of members of Medical Panels and experts engaged by the Panels to give evidence in proceedings. Subclause (1) confirms that a person who is or has been a member of a Medical Panel is competent to give evidence as to matters in a certificate or report given by the Medial Panel but is not compelled to give such evidence. Similarly, subclause (2) provides that a person who has given expert advice to a Medical Panel is competent to give evidence in proceedings as to matters relating to that expert advice, but is not compelled to give such evidence. The reason Members or consultants are not compelled to give evidence is to retain the integrity and viability of the Panels, and to encourage participation of medical experts on the panels. The clause operates the same as section 48(2) & (3) of the Accident Compensation Act 1985. Clause 273 sets out a mandatory pre-proceeding conciliation requirement for most statutory benefit disputes under the Bill or the Accident Compensation Act 1985. The mandatory conciliation requirement ensures that matters do not unnecessarily proceed to the Courts, which reduces cost implications for parties to a dispute and the scheme. Subclause (1) and subclause (3) exclude certain applications and claims from the conciliation requirement. These include claims relating to death benefits. Subclause (2) specifically excludes a dispute that is joined to a related court proceeding. Under subclause (2), 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. Subclause (2) derives from a recommendation by Mr Peter Hanks QC, in his Accident Compensation Act 1985 Review Report 2008. It ensures that outstanding issues may be brought before the court in a timely manner, without needing to adjourn court proceedings solely for the purpose of obtaining additional "genuine dispute" certificates from the Conciliation Service, provided the other party is not prejudiced. 141

 


 

This clause re-enacts section 49 of the Accident Compensation Act 1985, but changes the effect in respect of the following-- subclause (3)(a) specifically excludes premium related disputes under Part 10. The provisions in Part 10 (formerly in the ACWI Act), were never intended to be subject to the mandatory conciliation requirements; subclause (3)(a) also specifically excludes disputes relating to discrimination claims under Division 7 of part 13. The Industrial Division of the Magistrates Court has exclusive jurisdiction over a civil proceeding relating to discriminatory conduct under clause 578. That court has its own process of mandatory conciliation in the form of mediation and/or pre-hearing conferences, which is a more appropriate forum for these disputes than the Conciliation Service. Further, because the alleged discriminatory conduct may constitute criminal offence under clause 575, it is considered conciliation through the Conciliation Service would not be appropriate; subclause (3)(c) confirms that questions or matters in respect of the Workers Compensation Act 1958 are not subject to the conciliation requirement. Clause 274 provides for the referral of medical questions by a court exercising jurisdiction under Part 6. It allows the court to refer a question on its own motion, or on application by a party to the proceedings. Subclauses (3) and (4) confirm that if a request by a party is made, the court may refuse to refer a medical question to if it considers it would constitute an abuse of process, and that the court has a discretion as to the form in which a medical question is referred if such a request is granted. Two particular provisions are intended to facilitate the efficiency of the referral process and the quality of referrals. First, subclause (1)(b) specifies a time limit for a party making a request to the Court for a referral. The Court may only 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 has a discretion to extend this time period. The other provision is subclause (5), which prevents the Court from referring a medical question to a Medical Panel in circumstances where 142

 


 

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. 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. The provision is designed to promote resolution of such factual issues by the Court, who is better placed to resolve them, leaving the Medical Panel to focus on the medical issues in dispute. This provision re-enacts subsections (1) to (1D) of section 45 of the Accident Compensation Act 1985. Clause 275 sets out a process for the court to follow if, under clause 274(5), the court has not referred a question to a Medical Panel. Where the Court has declined to make a referral because of clause 274(5), clause 275(1) 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 clause 275(1). Clause 275(2) further outlines that after making any findings of fact, the Court may refer the medical question to the Medical Panel. Clause 275(3) provides that if it does so, it must provide the Medical Panel with details of the Court's factual findings, any reasons published by the Court for its findings and any further documents the court considers appropriate. This is so the Medical Panel has available to it all relevant information when forming its opinion on the medical question. 143

 


 

Clause 275(4) 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. This clause re-enacts subsections (1E) to (1H) of section 45 of the Accident Compensation Act 1985. Clause 276 sets out the requirement for a court to give copies of documents to parties in proceedings, where the court has referred a medical question to a Medical Panel. This ensures there is transparency in the medical panel process. Transparency is important when a reference is made because the parties are able to make submissions to the Panels in relation to the referral. This provision re-enacts section 45(2) of the Accident Compensation Act 1985. Clause 277 sets out the requirement for a court to give copies of a Medical Panel opinion that has been referred to the Panel by the court to the worker, employer, Authority or self-insurer. This ensures the parties have access to a key determination, relevant to the proceeding. This clause is intended to operate the same as section 45(4) of the Accident Compensation Act 1985. Clause 278 regulates the award of costs by a court in proceedings brought before a court under the Accident Compensation Act 1985, the Bill or the Workers Compensation Act 1958. The provisions are intended to ensure that matters are brought in the appropriate Court. Subclauses (1) and (2) ensure that if proceedings are brought before the court other than by the Authority, employer a self- insurer, the Court must award costs against the party against whom a decision or judgement is made and may include in that order an award of costs to the representative of in whose favour a judgment or decision is made. Subclause (2A) regulates the award of costs by the County Court in relation to the statutory officer and counter-offer process in sections 98 and 98A of the Accident Compensation Act 1985. 144

 


 

Subclause (4) regulates the award of costs where a direction of a Conciliation Officer is revoked by a court under clause 299 and if the court has not made an order under section 299(4)(b), regarding compensation payments and requests for access to information. Paragraphs (c) and (d) provide that the costs of the worker are to be paid by the person who made the application and that the worker is not liable for that person's costs. The provision ensures that the worker is not financially disadvantaged as a result of applications made in response to an outcome of a conciliation that is favourable to the worker, even if the application is successful. Subclauses (5) to (9) specify the cost consequences of bringing proceedings in the County Court where they could have been brought in the Magistrates' Court. The provision is intended to ensure that, when proceedings issued by a worker or claimant in the County Court are settled or compromised, and the outcome achieved by the settlement or compromise could have been achieved by a decision or judgment in the Magistrates' Court, under no circumstances can the worker or claimant recover from or have costs awarded against, the other party or parties to the proceedings in excess of the costs which could have been awarded if the scale of costs applicable in the Magistrates' Court applied. This clause re-enacts section 50 of the Accident Compensation Act 1985. Clause 279 prescribes in detail, the circumstances in which the court may in proceedings, order certain costs to be borne or paid by a legal practitioner personally. The circumstances are where a legal practitioner has without reasonable cause, caused proceedings to be commenced in the County Court where they could have been brought in the Magistrates' Court, or caused costs to be improperly caused or wasted by misconduct or default. The types of order the Court may award include an order to disallow costs to be paid to the legal practitioner by the client. The provision seeks to avoid unnecessary legal costs for the parties and the scheme. This clause re-enacts section 50A of the Accident Compensation Act 1985 and expressly makes clear that the provision is not in derogation of other Acts such as the Civil 145

 


 

Procedure Act 2010, which provide the courts with similar disciplinary powers. Division 3--Disputes and conciliation Clause 280 includes a flowchart which provides an overview of the dispute resolution process under Part 6 in circumstances where a worker disagrees with a decision by the Authority or a self-insurer. Clause 13 provides that a flow chart does not form part of this Bill; and it is not intended to have any legal status. Rather, it is intended to assist the reader to understand the steps involved in a typical dispute. Clause 281 defines the terms dispute and conciliation conference for the purposes of Division 2. The provision re-enacts section 53 of the Accident Compensation Act 1985. Clause 282 provides for a party to a dispute to refer the dispute for conciliation by a Conciliation Officer, and sets out the requirements for lodging the dispute with the Senior Conciliation Officer. In most cases, referral to conciliation is a mandatory step for resolving disputes that arise under the Bill or specific parts of the Accident Compensation Act 1985 before proceedings can be issued. The reason for making conciliation mandatory is that it provides a non-adversarial, effective and cost-efficient forum to seek to resolve disputes, in an attempt to avoid litigation. This clause re-enacts subsections (1), (2) and (2A) of section 55 of the Accident Compensation Act 1985. Clause 283 allows the Senior Conciliation Officer to, on application, grant an extension of time or allow an application for a referral under clause 282 to be lodged out of time. This clause re-enacts section 55(3) of the Accident Compensation Act 1985. Clause 284 provides for a Conciliation Officer to refer a medical question to a Medical Panel. This provision is particularly important in resolving a dispute regarding an aspect of the worker's medical condition. A referral to the Panel ensures a binding and conclusive opinion and which assists in resolving the dispute. This clause re-enacts section 56(6) of the Accident Compensation Act 1985. 146

 


 

Clause 285 requires Conciliation Officers to refer medical questions that arise in disputes relating to clause 165 or section 93CD of the Accident Compensation Act 1985 to a Medical Panel within 7 days of becoming aware of them. Such a dispute may arise if a worker disagrees with a decision of the Authority or self- insurer to reject his or her application. The rejection or termination notice from the Authority will identify whether the decision is a factual dispute or a dispute that involves a medical question. It is intended that conciliation of the dispute will be suspended until the Medical Panel gives its opinion on the medical question. Paragraph (f) of the definition of medical question contemplates a medical question for the purposes of an application under section 93CD or clause 165 of the Bill. This clause re-enacts section 55AA of the Accident Compensation Act 1985. Clause 286 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 Conciliation Officer that is relevant to the dispute, subject to any genuine claim for privilege or immunity. The Conciliation Officer may then, in his or her discretion, provide a document so produced, or information so disclosed, to the other party. The purpose of the provision is to ensure parties to conciliation provide all relevant documents and information to the Conciliation Officer and that, where appropriate, the documents or information are provided to the other parties. This promotes transparency in the conciliation process and the efficient resolution of the dispute. This clause re-enacts section 55AB of the Accident Compensation Act 1985. Clause 287 provides that a person can only be represented by a legal practitioner at a conciliation conference with the agreement of the parties to the dispute. In these circumstances, the practitioner has the same protection and immunity as a practitioner appearing for a party in proceedings in the Supreme Court. This clause re-enacts sections 56(3) and section 58A of the Accident Compensation Act 1985. 147

 


 

Clause 288 allows certain medical service providers who have examined a worker to meet with the Conciliation Officer, answer questions and supply relevant documents, at the request of the Conciliation Officer and with the agreement of the worker. The purpose of the provision is to assist the Conciliation Officer in accessing information that may be used in the context of a conciliation to ensure the process is conducted as expeditiously as possible. This clause re-enacts section 56(6) of the Accident Compensation Act 1985. Clause 289 obliges the Authority to pay the reasonable costs of a report provided by certain registered health practitioners in specified circumstances. The registered health practitioners are specified in clause 289(2). These are: a registered medical practitioner, dentist optometrist, physiotherapist, chiropractor, osteopath, podiatrist or a psychologist, as defined in clause 3. The intention of the provision is to facilitate effective conciliation by enabling a Conciliation Officer to obtain relevant medical evidence, without requiring the worker to incur the cost of obtaining the evidence. This clause re-enacts sections 56(5A) and (5B) of the Accident Compensation Act 1985. Clause 290 confirms that a Conciliation Officer may exercise functions the Division, without a conference and without requesting further information from a party to the dispute. This recognises that less complex disputes may not require a conference or parties to provide further information to resolve the dispute. This clause re-enacts section 56(8) of the Accident Compensation Act 1985. Clause 291 enables a Conciliation Officer to request documents or information that the Conciliation Officer considers may be relevant to a dispute, and to make the documents or information available to any party to the dispute. The purpose of the provision is to facilitate the efficient resolution of a dispute by ensuring all relevant information is readily available and, where appropriate, provided to the other parties in the dispute. This clause re-enacts sections 56(9) and 56(10) of the Accident Compensation Act 1985. 148

 


 

Clause 292 makes it an offence and imposes a penalty if a person namely makes a false or misleading statement in connection with a dispute referred to conciliation. The clause re-enacts section 56(11) of the Accident Compensation Act 1985, but the penalty now reflects the penalty scale in the Sentencing Act 1991 and offences of a similar nature in other Acts. Clause 293 sets out the obligations of Conciliation Officers in conciliating disputes. It requires the officers to make all reasonable efforts to conciliate with respect to a dispute, to bring the parties to agreement. In doing this, the officer must have regard to the need to be fair, economical and quick, and have regard to the objectives of the Act. This clause re-enacts section 56(2) of the Accident Compensation Act 1985. Clause 294 sets out the powers of the Conciliation Officer in connection with a dispute. Subclause (1) confirms that the Conciliation Officer can make recommendations to the parties, or give certain directions, and may also decline to give any direction or recommendation. The parties may agree to accept a recommendation by the Conciliation Officer. Recommendations are normally given when the VWA agent does not admit liability, but accepts the conciliation result (for instance, where the worker had a limited entitlement). Subclause (2) provides that unless the court determines otherwise, the Conciliation Officer may conciliate with respect to a dispute (and make or give relevant recommendations or directions) even though the dispute is pending determination in proceedings under the Bill or the Accident Compensation Act 1985. While most disputes are usually resolved during the conciliation process, in some circumstances the court will allow certain matters that are the subject of court proceedings to be conciliated (for instance, if the court considers the matter could be more effectively dealt with by conciliation, rather than litigation). This clause ensures conciliation officers can still use their powers to conciliate with respect to a dispute even though proceedings have commenced. It is not intended that section 294(2) override the mandatory pre-proceedings conciliation requirement in clause 273 of the Bill. 149

 


 

This clause re-enacts sections 57(1) and 57(2) of the Accident Compensation Act 1985. Clause 295 makes it an offence for and imposes a penalty if a person fails to comply with a direction given by a Conciliation Officer under the Division. The penalty is consistent with the scale in the Sentencing Act 1991. This clause re-enacts section 58B of the Accident Compensation Act 1985. Clause 296 states the requirement for a Conciliation Officer to issue an outcome certificate at the conclusion of the conciliation if the dispute was referred under clause 282 and has resolved. Subclause (2) 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: clauses 296(2)(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: clause 296(2)(e). Clause 296(3) 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 clause 268(2) 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. Clause 296(4) confirms that if the Conciliation Officer has issued a genuine dispute certificate pursuant to clause 273 of the Bill or section 104(7) of the Accident Compensation Act 1985, then he or she is relieved from the obligation to issue an outcome certificate under clause 296 as an outcome certificate would be unnecessary in these circumstances. This clause re-enacts subsections 57 (3) to (6) of the Accident Compensation Act 1985. Clause 297 sets out the powers of the Conciliation Officer regarding certain specified disputes as to the liability to make or continue weekly payments or payment for the cost of medical and like services where the Conciliation Officer has been unable to bring the 150

 


 

parties to agreement, and is satisfied there is no genuine dispute with respect to the liability to make payments of compensation. In practice, this provision will only operate where the Conciliation Officer has first made all reasonable efforts to bring the parties to agreement in accordance with his or her duties under the Bill. It ensures that workers are not financially disadvantaged in cases where the Conciliation Officer forms the view that there is no genuine reason to deny liability where this impacts on compensation payments. Subclause (4) enables the Conciliation Officer to issue a direction or further direction requiring the Authority, employer or self-insurer to pay, or to continue to pay (if payments have already been made), weekly payments not exceeding 12 weeks. Under subclause (6), the Conciliation Officer can direct weekly payments in respect of a period ending before the direction is given of no more than 24 weeks. Subclause (9) allows the Conciliation Officer to give a direction for the payment of medical and like services under Division 7 of Part 5 or Part 2B of Part IV of the Accident Compensation Act 1985. The direction must not exceed $5000 in respect of the relevant injury, which means any injuries that are the subject of the claim. Consistent with section 14 of the Interpretation of Legislation Act (ILA), the reference to "injury" may be read in the singular or the plural. The reference in this subclause is to be read in the plural, to capture all injuries relevant to a claim. The VWA or self-insurer may seek a revocation of a direction in proceedings under clause 299. This clause is re-enacts section 59 of the Accident Compensation Act 1985, with the exception of subsections 59(4) and 59(10)(a), which are reflected in clause 298. Clause 298 relates to disputes regarding payments of compensation that have not resolved at conciliation, where the Conciliation Officer is satisfied there is a genuine dispute with respect to the liability to make or to continue to make payments. Subclause (1) requires the Conciliation Officer to notify the person who has made the claim of that fact and that an application may be made to the court to determine the matter. As with clause 297, in practice this provision will only operate where the Conciliation Officer has first made all reasonable efforts to bring the parties to agreement in accordance with his/her duties under the Bill. 151

 


 

This requirement ensures that the worker is aware of his/her option to pursue court proceedings, where attempts to resolve the matter have failed and an independent Conciliation Officer has formed the view that there was a reason to support the denial of liability. This clause re-enacts section 59(4) and (10)(a) of the Accident Compensation Act 1985. Clause 299 provides for the revocation of directions by Conciliation Officers and, on the application of a person, by a court. The provision ensures the VWA or a self-insurer can challenge a direction by a Conciliation Officer in a court, if the matter has been conciliated. This is important because directions by Conciliation Officers are not intended to be binding on courts. Subclause (3) confirms that the obligation to make payments of compensation ceases if a direction has been revoked by the court. Subclause (4) provides that the worker or person who received the payments is not required to refund the payments unless the court otherwise orders under subclause (4)(b), which relates to claims made without proper justification or where the claim is wholly or partially fraudulent. Subclause (4)(c) allows the court to order a person whom it determines is liable for any part of the payments, to reimburse the person who made the payments, in lieu of making an order for a refund. This clause re-enacts section 60 of the Accident Compensation Act 1985. Clause 300 confirms that certain actions or omissions of a person in relation to directions or recommendations given by a Conciliation Officer are not an admission of liability by the person, and that the grant or refusal by a court of an application for revocation of a direction is not a finding as to liability in respect to a matter in dispute. This is an important provision because the conciliation process is non-adversarial and it is not intended that a Conciliation Officer will be empowered to make determinations relating to entitlements to compensation which are binding on the parties. This clause re-enacts section 61 of the Accident Compensation Act 1985. 152

 


 

Clause 301 regulates the payment of costs in relation to disputes referred to conciliation. The general position is that subject to clause 285(2), each party to a dispute bears the party's own costs. Other exceptions are contained in subclauses (2) to (4), which confirms that the Authority or self-insurer is liable to pay the reasonable expenses of a workers transport to and from a conciliation conference up to a maximum of $56 per day; and to reimburse the worker for any loss of income sustained by the worker by attending the conference, up to a maximum of $386 per day. It is intended that the reimbursement for loss of income will 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 clause 301(2)(b). The above maximum amounts are prescribed in clause 545, which 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 100C of the Accident Compensation Act 1985. Subclause (5) confirms that the payment of these costs is not a payment of compensation under the Accident Compensation Act 1985 or the Bill, except for specific purposes set out subclause (5). This clause re-enacts section 62 of the Accident Compensation Act 1985, with modifications to make clear that subclause (1) does not apply to the costs referred to in clause 285(2). Clause 285(2) requires the Authority or self-insurer to bear all costs reasonably incurred by a worker in relation to a referral of a medical question by the Conciliation Officer, where the question arises in a dispute under clause 165 (applications for weekly payments beyond the 2nd entitlement period). 153

 


 

Division 4--Medical Panels Clause 302 sets out the main function of the Medical Panel, which is to give its opinion on any medical question arising out of or in the course of employment referred to it by a Conciliation Officer, the court, the Authority or a self-insurer. Given medical questions are common issues in dispute under the WorkCover legislation, the Medical Panel process is central to resolving these matters as the opinions are intended to be final and conclusive. Subclause (2) confirms that the Panel must give its opinion in accordance with the Division. This clause re-enacts section 67(1) and 67(1A) of the Accident Compensation Act 1985. Clause 303 sets out the powers and procedures of Medical Panels. Subclause (1) provides that the Medical Panel is not bound by the Rules of practices as to evidence and may inform itself on any matter relating to a reference in any manner it thinks fit. This ensures that the Panels are not unnecessarily restricted by legal evidentiary rules and may gather relevant evidence in order to provide their medical opinion on questions referred to the Panels. This is appropriate because the nature of the Panel's work is that of an expert body. Their opinions are not formed in an adversarial context, which would require the rules of evidence to apply. Subclause (6) allows the Convenor to give directions as to the arrangement of business of the Medical Panels but they must not be inconsistent with guidelines issued by the Minister. The power and requirements relating to guidelines issued by the Minister are in subclauses (3) to (5). Directions issued by the Convenor are published on the Medical Panel website: www.medicalpanels.vic.gov.au. There are no Ministerial guidelines issued under the equivalent provision in the Accident Compensation Act 1985. This clause re-enacts subsections (1),(2),(7), (8), (8A) and (9) of section 65 of the Accident Compensation Act 1985. Clause 304 specifies requirements for the manner in which a medical question must be referred by a person or body (i.e. the court, a Conciliation Officer, a self-insurer or VCAT under the relevant provisions of the Bill). It ensures the Panel has all of the relevant documents, facts and questions that are relevant to the 154

 


 

injury or alleged injury the subject of the medical question, and any facts or questions which the person or body referring the question is satisfied are agreed and those in dispute. This clause re-enacts section 65(6A) and 65(6B) of the Accident Compensation Act 1985. Clause 305 clarifies that when a referral is received, the Convenor must act expeditiously in convening a Panel and give the Medical Panel the relevant documents received by the Convenor with the reference if a question is referred under clause 304. This requirement is intended to ensure that there is no unnecessary or unreasonable delay before the commencement of the 60 day timeframe for a Panel to form its opinion, specified in clause 313(1). While there is no like provision in the Accident Compensation Act 1985, the provision has been inserted because to clarify the current practice and to complement clause 313(1). Clause 306 expressly provides 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 a referral has been made by a Conciliation Officer and 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. Subclause (2) 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. This provision ensures that the Panels are not constituted or required to provide an opinion in circumstances where a referral is unclear or otherwise inadequate, or where the question referred substantially depends on the resolution of factual issues, which are not appropriate for determination by a Panel. This clause re-enacts section 65(5A) and 65(5B) of the Accident Compensation Act 1985. 155

 


 

Clause 307 specifies certain things that a Panel may ask a worker to do. Specifically, the Panel may ask the worker to meet with the Panel and answer questions, to supply copies of all documents relating to the medical question, and to submit to an examination by the Panel or by a member of the Panel. This is necessary to ensure the Panel has the information it requires, including any relevant medical history of the worker, to enable the Panel to form its opinion on a medical question. This also benefits the worker because it facilitates the efficient delivery of an opinion. This clause re-enacts section 65(5) of the Accident Compensation Act 1985. Clause 308 provides for a Conciliation Officer, a court, the Authority or a self-insurer to require a worker who claims compensation or is in receipt of compensation to submit to a Medical Panel examination. This is necessary to ensure the Panel can perform its function to determine medical questions relating to a workers injury or medical condition. Subclause (2) specifies the grounds for when a Panel may refuse to proceed with an examination. This clause re-enacts as subsections (2) and (3) of section 67 of the Accident Compensation Act 1985. Clause 309 specifies the consequences which apply if a worker refuses to submit to a Medical Panel examination in accordance with clause 307 or in any way hinders the examination by the Medical Panel. This clause re-enacts as subsections (4) and (5) of section 67 of the Accident Compensation Act 1985. Clause 310 regulates who may attend with a worker before a Panel. While the general rule is that attendance before the Panel must be in private (unless the person is a minor or under a disability), the Panel may allow another person to be present on request of the worker. A request may be made if a worker needs emotional support to provide an accurate medical history or detail of the circumstances in which the injury arose. In most cases, the request will be granted. A request is unlikely to be granted if the presence of another person would impact on the Panel's ability to obtain an accurate medical history. The provision ensures that examinations are confidential, unless 156

 


 

a worker requires another person to be present. This is consistent with the practice and expectations medical practitioners. The clause re-enacts section 65(4), 65(4A) and 65(11) of the Accident Compensation Act 1985. Clause 311 provides that if the Panel so requests and the worker consents, a person who is a provider of a medical service and has examined the worker must meet with the Medical Panel and answer questions, and supply relevant documents to the Medical Panel. This facilitates the provision of relevant information relating to the workers medical condition. This clause re-enacts section 65(6) of the Accident Compensation Act 1985. Clause 312 enables the Panel to request from the worker or the person or body who has made a referral, further information to assist it to form its opinion on a medical question that has been referred to it. The information must be provided within a specified timeframe, which must not exceed 14 days after the date of the last Medical Panel examination. If the Panel makes such a request, the 60 day timeframe for the panel to form its opinion (specified in clause 313(1)) is suspended. Subclause (2) confirms that the Panel has a discretion to accept information outside the prescribed period. This clause re-enacts section 65(5C) of the Accident Compensation Act 1985, but the clause changes the effect of that section-- to specify a maximum period in which a request for further information must be provided (being 14 days after the last Medical Panel examination); to allow the request to be made to the worker, not only the person or body who made the referral; and to reflect a clear discretion for the Panel to accept further information that is provided outside the period specified in the request. 157

 


 

The changes are intended to regulate the timeliness of submissions on referrals made by the parties to the Panels while they are in the course of forming their opinion. This will enable the Panel to deliver its opinions in an efficient manner. It is anticipated the Panel will exercise its discretion under subclause(2) in circumstances where there has been a change in the workers medical condition or other medical information relevant to the referral is submitted, provided that information was not available to the party seeking to submit it within or before the specified period. Clause 313 sets out the requirements for a Medical Panel to give an opinion on medical questions where a reference has been made. The Panel has 60 days to form its opinion on a medical question and that opinion is binding on any court or tribunal. Subclause (1) confirms that the 60 day timeframe for the Medical Panel to form its opinion begins when the Panel receives documents relating to the medical question from the Convenor; or within such longer period as is agreed by the Conciliation Officer, a court, VCAT the Authority or the self- insurer. Subclause (1) is complemented by clause 305, which requires the Convenor to act expeditiously in convening a medical panel, once the referral has been received by the Convenor. Subclauses (2) and (3) provide that the Panel must give a certificate of its opinion and within 7 days after forming its opinion, give a written opinion and a written statement of reasons for its opinion to the Conciliation Officer, the Court, the Authority or a self-insurer. Subclause (4) confirms that the opinion of a Medical Panel on a question is to be applied and adopted for the purposes of determining any question or matter and must be accepted as final and conclusive by any court, body or person. The Medical Panel is an expert panel which is best placed to determine such medical questions. This provision is not intended to prevent a party seeking redress in relation to jurisdictional error, as the Panel is still bound by procedural fairness. The Medical Panel is an expert panel which is best placed to determine such medical questions, and in accordance with subclause 313(4) of the Bill, its opinion is final and conclusive on any court, body or person. Medical Panel opinions may still be judicially reviewed 158

 


 

by the Supreme Court on the basis that the Panel committed a legal error, such as taking into account an irrelevant consideration, misconstruing the legislation under which the Panel acts, or failing to observe the rules of natural justice and procedural fairness. I therefore consider that this clause does not limit the right to a fair hearing. Subclause (5) clarifies that the provision of inadequate reasons by a medical panel does not in and of itself provide a basis for legal challenge and that the statement is not expected to be to the level of judicial expectation, contrary to the Court of Appeal decision in October 2012 of Kocak v Wingfoot Australia Partners & Ors (Kocak). This may be characterised as non- jurisdictional error on the face of the record. The provision is not intended to prevent a party seeking redress if the reasons provided by the Panel are so inadequate as to lead the Court to infer that the Medical Panel failed in some respect to exercise its powers according to law by taking into account irrelevant considerations or failing to consider a material issue or fact and such an error is jurisdictional in nature. Subclause (6) makes clear that the Medical Panel is still bound by the provisions of the Administrative Law Act 1978, specifically under section 8(4). That is, if the Panel fails to comply with an order of the Supreme Court that a further statement of reasons be given, or if that statement furnished is not adequate to enable a Court to see whether the decision does or does not involve any error of law, the Court may in addition to or in lieu of any order to enforce compliance, make any such order as if there had been an error of law in the statement of reasons. Clause 313 re-enacts section 68 of the Accident Compensation Act 1985 but changes the effect of that section to confirm when the timeframe for a Medical Panel to form its opinion begins, and also introduces new provisions in subclauses (5) and (6) to confirm that the provision of inadequate reasons by a medical panel does not in and of itself provide a basis for legal challenge. 159

 


 

Division 5--Determination by courts and recognition of determinations Division 5 provides for the making of determinations by certain courts as to the State with which a worker's employment is connected. These provisions are part of a set of largely uniform provisions which reflect a framework for coverage of workers operating temporarily in another jurisdiction. Victoria agreed to pursue complementary legislation with New South Wales and Queensland following the Workplace Relations Ministers Council meeting in May 2002. The arrangement seeks to reduce the need for employers to obtain workers compensation coverage for a worker in more than one jurisdiction at the one time and to allow employers to readily determine in which jurisdiction to insure their workers, to ensure that workers working temporarily in another jurisdiction have access to workers compensation entitlements available in their "home" jurisdiction (including whatever arrangements apply in relation to common law); and to provide certainty for workers as to their workers' compensation entitlements. This Division re-enacts as Division 1A of Part IV in the Accident Compensation Act 1985, which will be repealed by the Bill. Clause 314 provides for the making of determinations by certain courts as to the State with which a worker's employment is connected where the question arises in proceedings. This clause re-enacts section 91A of the Accident Compensation Act 1985. Clause 315 allows a party to apply for a determination of the state, and replaces the reference to "County Court" with a reference to "court", to clarify the like jurisdiction of the County and Magistrates' Court to hear and determine an application for a determination as to the state with which a worker's employment is connected. This clause re-enacts section 91B of the Accident Compensation Act 1985. Clause 316 provides for the recognition of prior determinations by Victorian and interstate courts in relation to the State within which a workers employment is connected. This clause re-enacts section 91C of the Accident Compensation Act 1985. 160

 


 

Clause 317 provides that a reference to a determination made by certain courts includes a reference to determination made by the court with the consent of the parties to the proceeding. This clause re-enacts section 91D of the Accident Compensation Act 1985. PART 7--ACTIONS AND PROCEEDINGS FOR DAMAGES Division 1--Choice of Law Division 1 of Part 7 specifies the applicable law which governs claims for damages in respect of work injuries. This Division operates the same as Division 6AB of the Accident Compensation Act 1985. Division 6A of the Accident Compensation Act 1985 is not replicated in this Bill as this Division has no ongoing application in relation to this Bill. Clause 318 clarifies to which claims for damages and related claims for recovery of contribution the Division applies. This clause operates the same as section 129MB of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 319 establishes that if a worker is entitled to compensation under the compensation scheme of one jurisdiction (because the worker's employment is connected to that jurisdiction), the law of that jurisdiction will govern: whether a claim for damages can be made; and the determination of that claim. If a worker has an entitlement to compensation in respect of the injury under the law of more than one jurisdiction, general common law principles govern the claim for damages. This clause operates the same as section 129MA of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 320 clarifies what constitutes an injury and employment and who is an employer for the purposes of this Division. This clause operates the same as section 129MC of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. 161

 


 

Clause 321 clarifies that, for the purposes of this Division, a claim for damages in respect of death resulting from an injury is to be considered as a claim for damages in respect of the injury. This clause operates the same as section 129MD of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 322 contains definitions which clarify what is meant for the purposes of this Division by the term "substantive law". This clause operates the same as section 129ME of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 323 clarifies that the availability of a cause of action in a jurisdiction other than the jurisdiction with which the worker's employment is connected is not relevant to the operation of this Division. This clause operates the same as section 129MF of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Division 2--Actions for Damages Division 2 of Part 7 operates the same as sections 134AA and 134AB of the Accident Compensation Act 1985. Division 9 of Part IV of the Accident Compensation Act 1985 is not replicated in this Bill as it only applies in relation to injuries arising on or after 12 November 1997 and before 20 October 1999. Clause 324 contains a flowchart which sets out the process by which legal proceedings for damages under this division may be commenced. Clause 13 provides that a flow chart does not form part of this Bill; and is not intended to have any legal status. Clause 325 Clause 325(1) defines the terms determination date, medical report, pain and suffering damages, pecuniary loss damages, response date and serious injury for the purposes of this Division. The definitions are intended to have the same operation as the equivalent definitions in section 134AB(37) in the Accident Compensation Act 1985, except that the definition of determination date in this clause explicitly specifies the 162

 


 

determination date: where a worker does not undergo an impairment assessment and the Authority or self-insurer grants leave to commence a common law claim under clause 335(2)(c); and where a court grants leave to bring proceedings on appeal in relation to one head of damage (pecuniary loss or pain and suffering) only. These changes reflect the legislative intention and current operational practice. The definitions in section 134AB(37) will continue to apply in relation to injuries which occur before 1 July 2014. Clause 325(2) contains provisions which apply to the assessment of whether an injury is a "serious injury" in accordance with this Division. Clause 335(2) operate the same as subsection 134AB(38) in the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 326 establishes the basis on which a worker may seek to recover damages under this Division and places certain restrictions on the type of damages that may be recovered in specified circumstances. The clause provides that if the injury or death is also an injury or death arising out of a transport accident within the meaning of the Transport Accident Act 1986, recovery of damages must be in accordance with the relevant provisions of that Act and specified provisions of this Bill. In cases where the injury is deemed by reason of clause 46(1) to be work-related and where the worker has a fixed place of employment and the injury has occurred away from that fixed place of employment and where the employer is not a party to the proceedings, damages may be recovered in accordance with the laws applying generally. In all other cases, damages may only be recovered as permitted by and in accordance with specified provisions of this Bill. This clause operates the same as sections 134AA and 134AB(1) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. 163

 


 

Clause 327 establishes the basis on which damages may be recovered under this Division in respect of an injury arising out of or in the course of employment, or due to the nature of employment, if the injury is a serious injury. This clause operates the same as section 134AB(2) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 328 provides that a worker may not bring proceedings in accordance with this Division unless the worker has made an application under this clause. An application may be lodged if the worker has previously had their degree of impairment assessed by a medical practitioner or the medical panel and the question of whether the worker has an impairment of 30% or more has been settled; or the worker has not yet undergone an impairment assessment but 18 months have elapsed since the injury was caused. Clause 328(3) specifies that if a worker has previously lodged a claim for impairment benefits under Division 5 of Part 5 of this Bill or section 98C of the Accident Compensation Act 1985 they cannot lodge a serious injury application until that claim has been determined. Clauses 328(4) and 328(5) specify the material that must accompany a worker's application. Clause 328(6) requires that a copy of any claim under Division 3A of Part 5 or section 104B of the Accident Compensation Act 1985 and an application under subsection (2) must be served on each person against whom the applicant claims to have a cause of action. This clause operates the same as sections 134AB(3), (4), (4A), (5), (5AA) and (5A) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 329 provides that, in the event that a worker unreasonably refuses to attend a medical examination arranged by the Authority or a self-insurer or otherwise obstructs the examination, the time limit within which the Authority or self-insurer must respond to the serious injury application is extended. 164

 


 

This clause operates the same as section 134AB(6) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 330 requires the Authority or self-insurer to respond to a serious injury application within 120 days. The response of the Authority or self-insurer must be accompanied by any materials they intend to rely on as evidence in the event that the claim proceeds to court. The worker has a corresponding obligation to exchange relevant materials in their serious injury application under clause 328 of this Bill. This clause operates the same as section 134AB(7), (8) and (9) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 331 allows a worker to submit further material in response to the material of the Authority or a self-insurer accompanying a response under clause 330. This clause operates the same as section 134AB(10) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 332 establishes that certain materials are inadmissible as evidence in actions for damages. This includes where those materials have not previously been exchanged by the parties, as provided for under clauses 328, 330 and 331. This clause operates the same as section 134AB(11) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 333 requires that, before proceedings for damages are commenced, the parties participate in a conference, and comply with the statutory offers and counter offer process set out in this clause and clauses 334. This clause operates the same as section 134AB(12) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 334 establishes that if the Authority or self-insurer does not make a statutory offer within the specified timeframe they will be deemed to have made a statutory offer of nothing, and if the worker does not make a statutory counter offer within the 165

 


 

specified timeframe the worker will be deemed to have made a statutory counter offer of the maximum amount that may be awarded as damages under clause 340(a) or (b). This clause operates the same as sections 134AB(13) and (14) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 335 Clause 335(1) provides that if the assessment of a worker's degree of impairment under Division 4 of Part 5 or section 104B of the Accident Compensation Act 1985 has been determined to be 30 per cent or more then the injury is deemed to be a serious injury. However, an assessment of 30 per cent or more will only result in the injury being deemed a serious injury if the worker had not previously made an application under clause 328(2), prior to the assessment of impairment. Clause 335(2) to (5) set out other grounds for a worker to establish a serious injury where the worker has not been assessed to have a degree of impairment of 30 per cent or more. One such ground is where the Authority or self-insurer is satisfied that an injury is a serious injury and issues a relevant certificate to the worker. Another ground is where a court other than the Magistrates' Court grants a worker leave to bring proceedings for the recovery of damages in accordance with the procedures and requirements set out in this clause. This clause operates the same as sections 134AB(15), (16), (17), (18) and (19) of the Accident Compensation Act 1985. Clause 335(2) confirms that, under clause 328 of this Bill, a worker can make a serious injury application without first having to undergo an impairment assessment. This change ensures alignment with clause 328 and reflects current practice. Clause 336 provides that no finding in a serious injury application under this Division gives rise to an issue estoppel in any proceedings for the recovery of common law damages brought under this Division. This has the effect that matters raised in a serious injury proceeding or application can be re-visited during a subsequent common law damages proceeding. This clause operates the same as section 134AB(19A) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. 166

 


 

Clause 337 provides the Authority with discretion to consent to the commencement of common law damages proceedings in certain circumstances, even though time limits prescribed in the Bill have not been met. This clause operates the same as section 134AB(20) and (20A) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 338 precludes a further application under clause 328(2) in relation to the same injury. This clause operates the same as section 134AB(21) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 339 provides that, where a worker has failed to satisfy a court that an injury is a serious injury on an application under clause 335(2)(d), and in a subsequent assessment of impairment under Division 4 of Part 5 or section 104B of the Accident Compensation Act 1985 is assessed as having a whole person impairment of 30 per cent or more, that worker is not entitled to recover common law damages for the same cause of action. This clause operates the same as section 134AB(21A) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 340 imposes monetary thresholds and caps which govern the recovery of damages under this Division. This clause operates the same as section 134AB(22) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 341 provides that in proceedings for damages before a jury, specified matters which might unduly influence the jury should not be disclosed to them. This clause operates the same as section 134AB(23) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. 167

 


 

Clause 342 restricts the types of pecuniary damages which may be awarded to a worker. Specifically it provides that damages should not be awarded to compensate the worker: for medical and like expenses incurred by the worker; or for gratuitous care and assistance. This clause operates the same as section 134AB(24) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 343 specifies that pecuniary loss damages should be reduced by any amount which has already been paid to the worker in weekly benefits. Similarly, that pain and suffering damages should be reduced by any amount which has already been paid to the worker as part of a claim under Division 5 of Part 5 (Compensation for non-economic loss). This clause operates the same as sections 134AB(25) and (26) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 344 outlines provisions relating to legal costs in respect of proceedings under this Division. Clause 344(1)(a) provides that, in proceedings relating to an application for leave of the court under clause 335(2)(d), costs are to be awarded against a party against whom a decision is made. Clauses 344(1)(b) and 344(2) set out different rules relating to legal costs in damages proceedings depending on the outcome of such proceedings and the statutory offer and statutory counter offer made, or deemed to have been made, by the parties prior to the proceedings. The provisions set out the legal costs consequences of the statutory pre-litigation negotiation process. Clause 344(3) 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 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 and party legal costs by the other party. 168

 


 

Clause 344(6) and (7) confirm that a person who acts on behalf of a worker is not entitled to recover any costs from that worker in respect of any proceedings under this Division, or to claim a lien in respect of those costs, or to deduct those costs from any sum awarded as damages, unless an award of costs has been made by the court in respect of those costs or those costs are payable in accordance with this Division by the worker. This clause operates the same as sections 134AB(27), (28), (28A), (29), (30) and (31) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur prior before 1 July 2014. Clause 345 imposes a discount rate of 6 per cent in relation to certain components of damages awarded under Division 2 of Part 7. This clause operates the same as section 134AB(32) and (33) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 346 specifies that interest on an amount of damages may only be awarded in relation to losses suffered by a worker after the date of their injury or death but before the damages were awarded. This clause operates the same as sections 134AB(34) and (35) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 347 sets out the general rules that the Authority, self-insurer or employer is not liable to pay weekly payments in respect of an injury where pecuniary loss damages are awarded or payments under Division 4 of Part 5 in respect of an injury where pain and suffering damages are awarded. Clause 347(2), (3) and (4) provide 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. This clause operates the same as section 134AB(36), (36A), (36B) and (36C) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. 169

 


 

Clause 348 provides that where a worker dies from causes unrelated to the injury to which their claim relates, a legal personal representative of the worker may continue their serious injury application on their behalf. The clause does not apply in circumstances where the worker's death is caused by the injury to which their claim relates, because in these circumstances the worker's dependants are intended to recover damages under Division 8 of Part 5--Compensation for death of a worker. A worker's dependants are defined broadly, for the purposes of this clause, to include persons who would have been dependant on the worker if the worker was not incapacitated as a result of their work injury or the injury or illness which caused their death. This clause operates the same as section 134ABAA of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 349 provides that for the purposes of calculating the period of time under the Limitation of Actions Act 1958 in relation to proceedings under Division 2 of Part 7, certain periods will be disregarded. The periods to be disregarded relate to periods during which a claim for compensation under Division 4 of Part 5 is being processed, and periods during which a common law application under the serious injury narrative is being processed. The clause applies to employer defendants and to any other parties who may be a defendant in any proceedings. This provision is necessary to ensure that workers are not disadvantaged by participating in the impairment benefit or serious injury application process. These processes can be time consuming and may delay the issuing of proceedings for common law damages. This clause operates the same as section 134ABA of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 350 clarifies the operation of the provisions regarding the limitation of actions period for serious injury applications under Division 2 of Part 7, by confirming that the date that a cause of action is taken to have accrued for the purpose of common law proceedings under this Bill is not affected by the serious injury 170

 


 

application process, with the exception of the relevant excluded periods. This clause operates the same as section 134ABB of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 351 has the effect of permitting an appeal as of right to the Court of Appeal from a decision granting or refusing leave under clause 335(2)(d) in circumstances where such an appeal could otherwise only be made by leave of that court. This clause operates the same as section 134AC of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 352 empowers the Minister to issue directions for or with respect to procedures under Division 2 of Part 7. These directions enable the Minister to specify further procedural details to ensure that the process by which a worker may commence and progress legal proceedings for common law damages is efficient and facilitates desirable outcomes. This clause operates the same as section 134AF of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 353 confirms that a legal practitioner acting on behalf of a worker in respect of any serious injury application is entitled to be paid legal costs by the Authority or a self-insurer in accordance with the legal costs order made under clauses 354 and 355. This clause operates the same as section 134AFA of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 354 empowers the Governor in Council to make a legal costs order specifying the legal costs that may be recovered by a legal practitioner acting on behalf of a worker in respect of any claim, application or proceedings under this Division and prescribing or specifying any matter or thing required to give effect to the legal costs order. This clause operates the same as section 134AG of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. 171

 


 

Clause 355 enables the Governor in Council to make a legal costs orders in relation to the worker's costs arising from a litigated serious injury or common law proceeding. The clause provides for the specifying of any matter required to give effect to the legal costs orders, including procedures for resolving any dispute that arises in relation to the costs payable under the relevant order. The clause further provides that, prior to a legal costs order being made, the Minister must consult with the Attorney-General and the Treasurer. Procedural requirements for the making of a legal costs order under this clause are also set out, including the compulsory review of a litigated legal costs order by the Minister. The clause also confirms that, where an order is made, legal costs can only be recovered in accordance with the order. It is intended that a legal costs order is to override the Court's discretion in relation to legal costs in respect of these types of matters, and to supplant and replace existing rights to costs. The legal costs order is also intended to override the right of the Court to hear or determine disputes relating to costs payable under the litigated legal costs order, except in accordance with the order. This clause operates the same as section 134AGA of the Accident Compensation Act 1985. This clause confirms that a litigated legal cost order has full force and affect notwithstanding anything to the contrary in the Legal Profession Act 2004, the Supreme Court Act 1986, the County Court Act 1958 or the Civil Procedure Act 2010. This reflects the legislative intention and current operational practice. Section 134AGA of the Accident Compensation Act 1985 will continue to apply in relation to injuries which occur before 1 July 2014. Clause 356 enables the Governor in Council to make a legal costs orders in relation to the costs of the Authority or a self-insurer arising from a litigated serious injury or common law proceeding. The clause provides for the specifying of any matter required to give effect to the legal costs orders, including procedures for resolving any dispute that arises in relation to the costs payable under the relevant order. The clause further provides that prior to a costs order being made under these new sections, the Minister must consult with the Attorney-General and the 172

 


 

Treasurer. Procedural requirements for the making of a legal costs order under this clause are also set out, including the compulsory review of a litigated legal costs order by the Minister. The clause also confirms that, where an order is made, legal costs can only be recovered in accordance with the order. It is intended that a legal costs order is to override the Court's discretion in relation to legal costs in respect of these types of matters, and to supplant and replace existing rights to costs. The legal costs order is also intended to override the right of the Court to hear or determine disputes relating to costs payable under the litigated legal costs order, except in accordance with the order. This clause operates the same as section 134AGB of the Accident Compensation Act 1985, except that this clause clarifies that a litigated legal cost order has full force and affect notwithstanding anything to the contrary in the Legal Profession Act 2004, the Supreme Court Act 1986, the County Court Act 1958 or the Civil Procedure Act 2010. This reflects the original legislative intention and current operational practice. Section 134AGB of the Accident Compensation Act 1985 will continue to apply in relation to injuries which occur before 1 July 2014. Division 3--Actions by terminally ill workers or workers with asbestos-related conditions Clause 357 allows a worker with a terminal illness or an asbestos-related condition to commence a common law damages action without first having to comply with the serious injury application process or the statutory conference process. Within 30 days of commencing litigation, the worker must apply to the Associate Judge of the Supreme Court for an order of nunc pro tunc which validates the commencement of litigation under this clause; and for an order to allow the action to be expedited if the injury gives rise to an imminent risk of death. The judge is only permitted to grant these orders if they find that the worker does have a terminal illness or an asbestos related condition. If the judge finds that this is not the case, they must strike out the proceedings. These provisions ensure that a worker is not delayed in commencing or proceeding in their common law damages action; as any delays could potentially jeopardise their 173

 


 

entitlement to compensation, if they were to die before damages are awarded. This clause operates the same as sections 135BA and 135BB of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 358 sets out rules for actions by terminally ill workers to continue after the death of a worker in specified circumstances. This clause applies if a worker dies after they have issued proceedings and served the application to commence proceedings under clause 357. Further, the worker's death must not have been caused or materially contributed to by the injury to which the proceedings relate, and at the time of the worker's death the worker must have had a dependant or dependants within the meaning of clause 348(9). Where this clause applies, clause (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 clause 358(1)(a). Clause 358(2)(b) provides that the relevant proceedings shall be taken to be and shall be limited to an application served under clause 335(2)(d) by the worker before the worker's death. Clauses 358(2)(c) and (d) provide that for the purposes of the assessment of serious injury, the assessment must be made as at the date the proceedings referred to in clause 358(1)(a) were served. This clause operates the same as section 134ABAA of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Division 4--Administration by a trustee Clause 359 enables the County Court to hear and determine an application for any payment of compensation under the Bill to be paid to a trustee who manages the compensation on behalf of the worker. This clause operates the same as section 130(1)(c) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. The remainder of 130(1) is not replicated in this Bill as it relates 174

 


 

to old forms of compensation which are not provided for in this Bill. Sections 130(2),(3), 131 and 132 are not replicated in this Bill as the content is covered by other laws governing trustees. Division 5--Conduct of common law proceedings This Division applies where a worker brings common law proceedings which allege injury before 31 August 1985 and after 1 July 2014. It establishes procedures for the conduct of the defence of common law proceedings and for an apportionment between the Authority and a common law insurer of the liability to pay damages. This Division operates the same as Division 6B of the Accident Compensation Act 1985. Clause 360 defines the terms common law insurer, common law proceeding, defendant and worker for the purposes of this division. This clause operates the same as section 129N of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 361 provides that the Division applies where the Authority is liable to indemnify a defendant wholly or in part for an injury which occurred prior to 1985. It also provides that a defendant or their common law insurer may agree with the Authority that this Division does not apply to common law litigation. This clause operates the same as section 129O of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 362 provides that when damages are awarded, the Authority, employer or common law insurer may agree to apportion liability for those damages between themselves. Alternatively in the absence of agreement, a court must determine apportionment of liability in accordance with what is just and equitable. This clause operates the same as section 129P of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 363 provides that the defendant or their common law insurer must notify the Authority that proceedings are being brought against them. 175

 


 

This clause continues the operation as section 129Q of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 364 governs who may conduct the defence of the proceedings. This clause operates the same as section 129R of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 365 establishes the procedure by which a court order determining apportionment of liability may be brought. This clause continues the operation of section 129S of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Division 6--Other actions and rights Clause 366 provides that dependants of a worker may bring an action of wrongful act or negligence causing death, under Part III of the Wrongs Act 1958. This section does not apply where the death of the worker arose from a transport accident, in which case the provisions of the Transport Accident Act 1986 govern the proceedings. The clause also sets out the maximum amount that can be recovered as damages under the Wrongs Act 1958 and contains other provisions governing aspects of the proceedings. This clause operates the same as section 135C of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 367 provides that the Authority and, in certain circumstances, a self- insurer has a right to recover costs of compensation and damages paid under this Bill from the Transport Accident Commission where the relevant injury or death arose out of a transport accident within the meaning of the Transport Accident Act 1986. Clause 367(2) provides the amount of any recovery that may be made by a self-insurer from the Transport Accident Commission is reduced by an amount equal to the amount of the employer's excess. 176

 


 

This clause operates the same as section 137(5A), (5B) and (6) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. The remainder of section 137 of the Accident Compensation Act 1985 have been omitted from this Bill because they have no application to injuries or deaths under the Bill. Clause 368 Where the Transport Accident Commission is liable to make a payment to the Authority in accordance with clause 367(1) or it appears that the Transport Accident Commission may become liable to make payments under that clause, clause 368 enables the Authority and the Transport Accident Commission to undertake a settlement of that liability or potential liability in any manner they think fit. This clause operates the same as section 137A of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 369 provides that the Authority, a self-insurer or employer is entitled to be indemnified by a third party in circumstances where the third party is legally liable for an injury or death for which compensation has already been paid or may be payable under the Bill. Clause 369(3) specifies the amount which a third party is required to pay as an indemnity. Clause 369(5) 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 this clause. Clause 369(7) to (9) enables the Authority to recover an amount from a third party on behalf of the employer, indemnifying them for any compensation they have paid under clause 72-- Employer's excess. The Authority has discretion to disperse the amount recovered as it sees fit. A decision of the Authority to see recovery or not seek recovery is not reviewable. 177

 


 

This clause operates the same as section 138 of the Accident Compensation Act 1985, except that the definition of the term proceedings is now contained in clause 618, Supreme Court-- limitation of jurisdiction--no proceedings as it applies in relation to other Parts of the Bill. Clause 370 clarifies that all the provisions of Divisions 2, 3 and 8 of Part 7 contain matters that are substantive law. This clause operates the same as section 138A of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. Clause 371 operates to prevent a court from making a compensation order under Subdivision (1) of Division 2 of Part 4 of the Sentencing Act 1991 if the compensation would relate to certain specified matters or events. Clause 371(1)(a) includes a matter arising from discriminatory conduct that constitutes an offence against the anti- discrimination provisions in clause 575, irrespective of whether such a matter also relates to an injury or death that may give rise to an entitlement to compensation under the Bill. Subsection (1)(b) includes a matter arising from an event that constitutes an offence only against the Dangerous Goods Act 1985, the Occupational Health and Safety Act 2004, the Equipment (Public Safety) Act 1994 or any regulations made under any of those Acts. The matter must also arise from an injury or death in respect of which it appears that the person has an entitlement to compensation under the Bill. This clause operates the same as section 138B of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014. PART 8--SELF-INSURERS Division 1--General This Division is intended to operate the same as Division 1 of Part V of the Accident Compensation Act 1985. The division sets out various preliminary matters which aide in the interpretation of the following Divisions of Part 8. 178

 


 

Clause 372 defines, for the purposes of Part 8, the terms eligible subsidiary, employer, holding company, local government corporation, MAV, participating corporation, relevant remuneration and subsidiary. The definitions in this clause are largely the same as those in section 139 of the Accident Compensation Act 1985 which is to be repealed. The language in some definitions has been updated to maintain consistency with language used in Part 8 and the Bill. For example, the definition of subsidiary is now the same as the equivalent definition in the Corporations Act 2001, which refers to a subsidiary with varying degrees of ownership and management; while the new definition of eligible subsidiary refers to a subsidiary in which an employer or a self-insurer hold all of the shares or has sole control. The distinction between subsidiary and eligible subsidiary in Part 8 and the Bill is important because some provisions, including the review of a self-insurer's approval, are triggered when a self-insurer holds, buys or sells all of its shares in a subsidiary; this can have an impact on the self-insurer's ability to meet it existing and future tail claims liabilities. Where the Corporations Act 2001 definition of subsidiary is intended, then the existing reference to subsidiary found in the Accident Compensation Act 1985 has been included unchanged in the Bill. The definition of employer in clause 372 has been expanded from that in section 139 of the Accident Compensation Act 1985 to include a reference to the definition of employer under clause 3 of the Bill (which is the same as the definition of employer in section 5 of the Accident Compensation Act 1985). It is, therefore, the same as the combined definitions of employer in section 5 and 139 of the Accident Compensation Act 1985, which are to be repealed. The definition is important to ensure that a holding company is captured as an employer for the purposes of Part 8, even if it would not otherwise meet the definition of employer. The rationale for this is that, while it does not have any workers itself, it wholly owns a subsidiary that does. The definition helps ensure that an employer is not able to make use of a holding company to avoid being an employer and being responsible for their workers. The definition is also relevant for the purpose of assessing the value of an employer's tail claims and for calculating the 179

 


 

payment that the employer is required to make to the Authority when it stops holding all the shares in the subsidiary and the claims held by that subsidiary are returned to the scheme. The definition of relevant remuneration is remuneration paid by a self-insured employer under Part 8 of the Bill and is, notably, different to rateable remuneration in Part 10, which is the remuneration paid by a scheme-insured employer under Part 10. The definition of relevant remuneration applies in respect of amounts paid or payable by a self-insured employer and its eligible subsidiaries, if any, that would be relevant remuneration if the employer and its eligible subsidiaries were not self-insured employers and were required to pay premium under Part 10. The definition of relevant remuneration differs slightly from rateable remuneration as defined in section 139 of the Accident Compensation Act 1985. Clause 372 defines subsidiary in the same way as the Corporations Act 2001, to include varying degrees of ownership and management. This definition is in contrast to the definition of eligible subsidiary which only refers to a specific subset of subsidiaries-wholly owned subsidiaries (and is the equivalent of the definition of subsidiary in section 139 of the Accident Compensation Act 1985). The definitions are relevant and applicable to Part 8 when a self-insurer holds or ceases to hold all of the shares in a subsidiary that was included in its approval to be a self-insurer. This clause re-enacts section 139 of the Accident Compensation Act 1985. Clause 373 provides that student workers continue to be deemed school students participating in a work experience arrangement under Part 5.4 of the Education and Training Reform Act 2006 and continue to be deemed to be workers of the Department of Education and Early Childhood Development (DEECD). This deeming provides certainty for students and self-insurers about who is responsible for insuring the student and paying any relevant premium. It also helps provide an incentive to self-insurers to provide students with casual working opportunities to build and develop skills with knowledge as to the insurance status of a student worker who is usually not being paid for their work. Under this clause, the DEECD is responsible for paying premium for student workers as they 180

 


 

continue to be deemed as the student worker's employer. Clause 373 re-enacts section 139A of the Accident Compensation Act 1985. Clause 374 provides for the approval of a body corporate known as the Municipal Association of Victoria (MAV) as a self-insurer. The provision sets out the need for a MAV to keep separate accounts of money with respect to the operation of the self- insurer scheme for which a MAV has been approved under Part 8 of the Bill to operate. This clause re-enacts section 139B of the Accident Compensation Act 1985. Division 2--Application for approval as self-insurer This Division sets out the pre-application process for an employer who would like to self-insure. It re-enacts Division 2 of Part V of the Accident Compensation Act 1985. Clause 375 provides a process for an employer which would like to self- insure to make an application to the Authority for a determination about whether they are suitable and eligible to apply for approval to self-insure. The pre-application process confirms minimum requirements in relation to financial strength and stability that a body corporate must possess in order to be eligible to apply to become self- insured. A body corporate must be capable of meeting its claim liabilities as and when they fall due. The process provides a way for an employer which is interested in being a self-insurer to receive feedback from the Authority about what they may need to do for their application to be a self-insurer to be successful. The process also saves employers from investing further time and effort if it does not satisfy eligibility criteria. An employer is eligible to make an application to become a self-insurer within 12 months of the Authority making a determination. This provides an employer with time to meet the eligibility criteria and to make an application for approval as a self-insurer once it considers it has reached the required standard. 181

 


 

A pre-application assessment fee is payable by the employer to help cover the costs that the Authority incurs in considering and responding to the employer's application for a determination. Clause 375, combined with clause 376, helps ensure that only suitable employers are approved as self-insurers under Part 8. This is important to ensure consistency and adequate care of injured workers. This clause re-enacts section 140 of the Accident Compensation Act 1985. Clause 376 provides a process for an employer to make an application for approval to be a self-insurer. A robust and transparent application process is important given the considerable financial risk and claims management responsibilities that an employer assumes on being approved as a self-insurer. The Authority must be confident that the employer can pay its tail claim liabilities and has appropriate claims management processes and systems in place to be approved as a self-insurer. Combined with section 375, this clause helps ensure that only suitable employers are approved as self-insurers under Part 8. This clause re-enacts section 141 of the Accident Compensation Act 1985. Clause 377 outlines a process for determining the application fee that an employer is required to pay to the Authority when applying for approval to be a self-insurer. The Authority can estimate what remuneration the employer and its eligible subsidiaries will pay during a specified period. To assist the Authority to determine an application fee that is proportionate to the employer's individual circumstances, the Authority can ask the employer to provide an estimate of the remuneration that the employer and its eligible subsidiaries will pay. The clause refers to "relevant remuneration" rather than "rateable remuneration". "Relevant remuneration" refers to the remuneration paid by employers who would not ordinarily be required to pay premium under Part 10 because they are not scheme-insured. "Relevant remuneration" refers to amounts paid or payable by an employer and its subsidiaries, if any, that would be treated as rateable remuneration if the employer and its subsidiaries were required to pay premium under Part 10. 182

 


 

This clause re-enacts section 141A of the Accident Compensation Act 1985 except that it refers to "relevant remuneration" rather than "rateable remuneration". Clause 378 provides for the adjustment to the application fee payable by an employer to the Authority if the relevant remuneration of the applicant employer varies by 10% or more from the original estimated relevant remuneration under clause 377. If the application fee paid is less than what would have been paid if the actual remuneration had been used to calculate the application fee then the self-insurer needs to pay the difference to the Authority. If the reverse is true, then the difference is payable by the Authority to the self-insurer. This provision is necessary to ensure that the self-insurer pays an application fee that is fair and relates to the employer's individual circumstances. This clause re-enacts section 141B of the Accident Compensation Act 1985. Division 3--Approval as self-insurer Division 3 sets out the application process for an employer who would like to self-insure and the terms and conditions of approval. The Division also outlines the ability of the Authority to review and revoke a self-insurer's approval. These provisions are important to ensure that a self-insurer is able to meet obligations it has under the Bill and, accordingly, acts to protect its workers. The Division re-enacts Division 3 of Part V of the Accident Compensation Act 1985. Clause 379 sets out the process and criteria used by the Authority to determine if an application made by an employer to be a self- insurer will be approved. The Authority will only approve an employer to be a self-insurer if the Authority is satisfied that the employer is fit and proper to be a self-insurer. The clause sets out matters which the Authority must consider when determining whether an employer is fit and proper to become a self-insurer. These 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 it thinks fit. As with section 375 and 376, given the considerable financial risk and case handling and management responsibilities that an employer assumes upon 183

 


 

being approved as a self-insurer, it is important that the self- insurer application process is robust and transparent. This clause helps ensure that only suitable employers are approved by the Authority to be self-insurers under Part 8. This clause re-enacts section 142 of the Accident Compensation Act 1985. Clause 380 provides that an approval to be a self-insurer is subject to the terms and conditions specified in a Ministerial Order and determined by the Authority. These terms and conditions provide the basis for the Authority to make self-insurers accountable for the management of their claims in accordance with the Bill. If a self-insurer fails to meets all of the terms and conditions of their approval together with the provisions of Part 8, the Authority may seek to review the self-insurer's approval under section 384. Section 380 also empowers the Minister to make a Ministerial Order setting out the terms and conditions of approval of a self-insurer. This clause provides an important risk management tool for use by the Authority to ensure that self-insurers comply with their obligations. This clause re-enacts section 142A of the Accident Compensation Act 1985. Clause 381 requires the Authority, prior to refusing an employer's application for approval to be a self-insurer, to notify an employer which has applied for approval to be a self-insurer of the Authority's intention to refuse the approval and the reasons for the intended refusal. The employer can make further written submissions in support of their application within 28 days of receiving the Authority's notice. The Authority is required to consider any submission received from the employer prior to making a final decision. Once the Authority makes its decision, it is required to notify the employer in writing of its decision. This clause re-enacts section 143 of the Accident Compensation Act 1985. 184

 


 

Clause 382 confirms the date and length of the approval period for an employer to act as self-insurer. An employer's approval begins on a date determined by the Authority and notified to the employer. Where an employer was not a self-insurer immediately prior to the date that their approval took effect, the employer's approval period will be for three years. For an employer who was a self- insurer immediately prior to the date that their approval took effect, the employer's approval period is for four years but the Authority has discretion under clause 382(2) to extend the employer's approval period to six years. The Authority will only exercise its discretion to extend an approval period to six years where a self-insurer is a high performer in relation to the safety of working conditions, injury and claims management and return to work as assessed by the Authority against the fit and proper criteria of approval as a self-insurer. The Authority also has discretion under 382(3) and (4) to extend a self-insurer's term of approval for up to six months if the self-insurer undergoes a corporate restructure or becomes the subsidiary of another body corporate. This additional six months provides the approved self-insurer with time to complete their restructure without risk that they will need to go through the self-insurer approval process afresh due to the expiry of their approval period. The clause gives the Authority discretion to help deal with the inevitable commercial reality of corporate restructuring of large self-insured employers. Clause 382 re-enacts section 144 of the Accident Compensation Act 1985. Clause 383 provides the Authority with discretion, in limited circumstances, to approve a holding company as a self-insurer when it acquires a self-insurer. The holding company can elect to assume its own tail claims liabilities and the tail claim liabilities of the acquired self-insurer. On the application and request of the self-insurer and the holding company, the Authority has discretion to approve the holding company as a self-insurer for the balance of the acquired self-insurer's approval or to revoke the approval of the subsidiary as a self-insurer. The Authority can approve the holding company as a self-insurer if it is satisfied that there is not likely to be a substantive change to the operation and 185

 


 

management of the subsidiary due to the subsidiary becoming a wholly-owned subsidiary of the holding company. Alternatively, if the Authority considers that there will be a substantial change to the management and operation of the acquired self-insurer, the holding company may apply for approval as a self-insurer under clause 376. Where the Authority approves a new holding company as a self- insurer, the approval is valid for the balance of the approval period of the self-insurer that was acquired by the holding company. This avoids the need for the holding company to make an application for approval based on its own circumstances when the Authority is satisfied that the acquisition of the subsidiary will not lead to a substantive change to the operation and management of the subsidiary. The existing approval continues to apply and is how the holding company can be made accountable for any subsequent change in the operation and management of the subsidiary following the holding company's approval as a self-insurer. Clause 383 differs from section 144A of the Accident Compensation Act 1985 by providing that a holding company is approved as a self-insurer from a date determined by the Authority. This is in contrast to the section 144A where the approval operated from the date that the holding company acquired the self-insurer. This clause provides the Authority with an important risk management tool by allowing it discretion to not approve a new holding company if it considers it has a material impact on the management and operation of the subsidiary. This clause re-enacts section 144A of the Accident Compensation Act 1985 except with respect to the ability of the Authority to determine the date from which a holding company is approved as a self-insurer. Clause 384 confirms that the Authority may review the approval of a self- insurer where the Authority considers that there has been a change in circumstances of the self-insurer that would affect its ability to continue as a self-insurer. 186

 


 

The grounds for review include changes to the employer's structure, resources, financial strength and viability, acquisition or divestment of an eligible subsidiary, which are all areas of risk to an employer's ability to continue as a self-insurer. The clause requires a self-insurer to notify the Authority of any changes in its circumstances so that the Authority can consider whether the employer should continue as a self-insurer. Following a review, the Authority may revoke the self-insurer's approval if it does not satisfy the requirements for approval. Failure by an employer to notify the Authority of change in circumstances where required by this section attracts a penalty. The penalty is consistent with the penalty scale in the Sentencing Act 1991. This clause provides the Authority with an important risk management tool for use when a self-insurer's circumstances change and its ability to continue as a self-insurer may be affected. This clause re-enacts section 145 of the Accident Compensation Act 1985. Clause 385 provides that the Authority may revoke a self-insurer's approval where Authority considers that the self-insurer no longer meets the eligibility criteria of a self-insurer, the employer becomes a subsidiary of another body corporate, the employer has asked for their approval as a self-insurer to be revoked, or the employer has failed to comply with the Bill or regulations, the terms and conditions of their approval, a Ministerial Order or any other subordinate instrument made under the Bill or regulations. To ensure transparency and fairness in the revocation process, the self-insurer can make a written submission in response to the Authority's intention to revoke the self-insurer's approval within 28 days of receiving the Authority's notice. The Authority is required to consider any submission received from the employer prior to making a final decision. Once the Authority makes its decision, it is required to notify the employer in writing of its decision. This clause provides the Authority with an important risk management tool for use when a self-insurer's ability to meet the eligibility criteria for a self-insurer may be affected. 187

 


 

This clause re-enacts section 145A of the Accident Compensation Act 1985 Clause 386 requires a self-insurer which has had its approval revoked by the Authority 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. This clause ensures that scheme-insured employers and other self-insurers do not subsidise the cost of the self-insurance revocation process. This clause re-enacts section 145B of the Accident Compensation Act 1985. Clause 387 makes clear that an employer's approval as a self-insurer is revoked if it becomes a non-WorkCover employer and ceases to be an employer captured by the Victorian workers compensation scheme. Given that a non-WorkCover employer is captured by the Federal workers compensation scheme, the self-insurer's tail claims need to be returned to the scheme to be managed by the Authority. The revocation occurs from the date that the employer becomes a non-WorkCover employer. Clause 387 re-enacts section 145C of the Accident Compensation Act 1985. Division 4--Contribution to WorkCover Authority Fund Division 4 sets out a self-insurer's obligation to make contributions into the WorkCover Authority Fund. Division 4 re-enacts Division 4 of Part V of the Accident Compensation Act 1985. Clause 388 requires a self-insurer to pay a contribution to the WorkCover Authority Fund. This contribution is intended to cover occupational health and safety responsibilities of the Authority which impact on self-insurers. The amount of the contribution payable is to be calculated in accordance with a formula set out under Regulations. The formula is designed to distribute the costs of administering the scheme equitably across self-insurers in proportion to their share of total Victorian remuneration. Clause 388 re-enacts section 146 of the Accident Compensation Act 1985. 188

 


 

Clause 389 requires self-insurers to submit a return in accordance with a Ministerial Order, so that the Authority can determine the amount of contributions payable. This is intended to ensure that the contribution paid by a self-insurer is fair and proportionate to the remuneration that it pays its workers. Self-insurers are made accountable for the accuracy of the information they provide to the Authority for the purposes of this clause by the imposition of a penalty for breaching the clause. The penalty is consistent with the penalty scale in the Sentencing Act 1991. Clause 389 re-enacts section 146A of the Accident Compensation Act 1985. Division 5--Review of contributions by self-insurers Clause 390 provides the Minister with discretion to have an independent expert body review any matter related to the amount of contributions paid by self-insurers. This provides further transparency and independence in the calculation of contributions payable by self-insurers, which is important because it helps ensure that the amount of contributions paid by self-insurers continues to be fair and in proportion to the total amount of remuneration that self-insurers pay. Clause 390 re-enacts section 35(2) of the Accident Compensation Act 1985. Division 6--Liability for claims for compensation Subdivision 1--Liability of self-insurer Clause 391 confirms that a self-insurer has liability under the Bill and at common law, including in relation to provisional payments payable under section 243 to dependants of a deceased worker and the reimbursement of expenses incurred by a non- dependent family member of a deceased worker payable under section 240. The clause makes it clear to a worker or the dependants of a deceased worker that a self-insurer, not the Authority as would ordinarily be the case if the employer was not a self-insurer, has an obligation to make payments under the Bill. Clause 391 re-enacts section 147 of the Accident Compensation Act 1985. 189

 


 

Clause 392 enables a self-insurer to appoint an agent to carry out its functions in relation to the management of claims. In permitting a self-insurer to appoint an agent to manage its claims and in entering agreements with other parties, including the TAC, clause 392 makes it clear that ultimate responsibility and liability for claims and their management rests with the self-insurer. Clause 392 re-enacts section 147A of the Accident Compensation Act 1985. Clause 393 requires an employer which is approved as a self-insurer to provide the Authority with a guarantee to cover the value of the employer's assessed liability. The guarantee provided to the Authority must remain in place from the time that the employer is approved as a self-insurer until the employer's approval as a self-insurer is revoked. The requirement for a guarantee under this clause is intended to cover the value of the employer's assessed liabilities should the employer become insolvent or the employer is unable to pay its liabilities as and when they fall due. If either of these events occurs, then the guarantee provided by the employer will be relied on by the Authority. The assessed liabilities of an employer include all liabilities that an employer has with respect to injuries and deaths that are compensable under the Bill including prospective claims. The definition needs to be comprehensive to ensure that all of the employer's liabilities are included in determining an appropriate amount for the guarantee to be provided to the Authority under this clause. The clause intends to avoid the need for the scheme to cover the cost of the employer's assessed liabilities where the employer is not able to meet its claims liabilities during the period that is an approved self-insurer. An assessment of the employer's liabilities needs to be carried out by an Authority-appointed actuary annually. This frequency of assessments helps keep the value of the employer's assessed liabilities as current and accurate as possible. The annual assessments also keeps the Authority informed of any changes to the employer's assessed liabilities and may identify the need to update the amount of the guarantee provided by the employer. 190

 


 

The definition of tail claims includes claims that an employer has assumed liability and responsibility for the management of; including current, contingent and prospective claims at the time of seeking approval to self-insure. The definition needs to be comprehensive to ensure that all relevant claims are identified and are assumed by the employer or retained by the Authority. Clause 393 re-enacts section 148 of the Accident Compensation Act 1985. Clause 394 requires a self-insurer to pay an amount of compensation or damages or contributions in accordance with clause 394(1) within 28 days after a Conciliation Officer, the Victorian Civil and Administrative Tribunal (updated from Tribunal to VCAT in the Bill), the Magistrates' Court or County Court directs or determines that the self-insurer is liable. If the self-insurer does not make payment within 28 days of the direction or determination, the Authority is required to assume the liability and to make payment in accordance with the direction or determination. This clause ensures that a worker who is entitled to compensation or damages is not disadvantaged where a self-insurer fails to make payment as directed. It allows the worker to receive their compensation without unnecessary delay. This clause also provides the Authority with the ability to recover the amount it has paid, plus interest, on behalf of the self-insurer, from the self-insurer. Clause 394 re-enacts section 149 of the Accident Compensation Act 1985. Subdivision 2--Election by self-insurer to assume liability for tail claims Clause 395 provides an approval process for employers who would like to self-insure. When applying for approval to self-insure, the employer is required to make an election about whether it intends to assume the liability for, and responsibility for the management of, its own tail claims. If the employer does not make an election, the employer's tail claims will be retained by the Authority. 191

 


 

If the employer elects to assume liability and responsibility for the management of its tail, the employer is required to provide a guarantee to the Authority under clause 399 which guarantees payment of the employer's assessed tail claim liabilities. The requirement for a guarantee under this clause is intended to cover the value of the employer's tail claim should the employer become insolvent or when additional worker claims are made after the employer is approved as a self-insurer and has provided a guarantee. If either of these events occurs, then the guarantee provided by the employer will be relied on by the Authority. The definition of a tail claim aims to capture claims that may exist where a scheme-insured employer becomes a self-insurer. The tail claim definition includes a claim in respect of an injury or death incurred or suffered by a worker employed by a former eligible subsidiary of a self-insurer. To ensure that all relevant claims are captured and accounted for when an employer becomes a self-insurer, the definition includes claims retained by the self-insurer whether by agreement with the Authority or under this clause, before that self-insurer becomes an eligible subsidiary of another self-insurer. This clause re-enacts section 150 of the Accident Compensation Act 1985. Clause 396 enables a self-insurer to become an eligible subsidiary (that is, a wholly owned subsidiary) of a holding company. The holding company is required to apply for approval under clause 383 for approval as a self-insurer. In making an application for approval to become a self-insurer under clause 383, clause 396 requires a holding company to elect whether it will assume the liability for, and responsibility for the management of, the eligible subsidiary's tail claims (those claims relating to injuries incurred prior to the holding company becoming self-insured). Clause 396 works in tandem with clause 383 to outline the process involved for a holding company to be approved as a self-insurer. On applying to become a self-insurer, the holding company can elect to assume liability for the self-insurer's tail claims and responsibility for managing them. If a holding company does not make an election to assume liability and responsibility for the management of its own tail claims, if any, and the tail 192

 


 

claims of the eligible subsidiary, the tail claims of the eligible subsidiary are assumed by the Authority upon the revocation of the eligible subsidiary's approval as a self-insurer under clause 403 and the Authority retains the tail claims of the holding company if it has scheme-insured bodies corporate. If the holding company elects to assume liability and responsibility for the management of its own tail claims, if any, and the tail claims of the eligible subsidiary, the holding company is required to provide a guarantee to the Authority under clause 399 to cover the value of the tail claims of the holding company, if any, and the eligible subsidiary. The requirement for a guarantee under this clause covers the value of the assessed liabilities should the holding company become insolvent or be unable to pay its liabilities as and when they fall due. This protects the interests of workers with entitlements and ensures that their existing and future entitlements are not compromised by the acquisition of an eligible subsidiary by a holding company. The definition of tail claims aims to capture all possible claims that may exist where a self-insurer becomes an eligible subsidiary of a holding company. The tail claim definition includes any tail claims that the holding company or its eligible subsidiary may have had prior to the self-insurer becoming an eligible subsidiary of the holding company including claims retained by the self-insurer by agreement with the Authority or under this section, before that self-insurer became an eligible subsidiary of another self-insurer. The definition helps ensure that all worker claims are captured and that worker claims are not compromised by the holding company's acquisition of the self-insurer. This is a new clause, which has no equivalent in the Accident Compensation Act 1985. Clause 396 has been inserted to expressly provide a process for a holding company to be able to assume its tail claims liabilities, should it so elect. Clause 397 deals with the acquisition of a scheme-insured body corporate employer by a self-insurer. A self-insurer is required to notify the Authority of its acquisition with 28 days of it occurring so that the Authority can consider whether the acquisition affects the self-insurer's ability to continue as a self-insurer. If the acquisition impacts on the self-insurer's ability to meet its tail 193

 


 

claim liabilities or to manage its claims, then the Authority may need to consider reviewing the self-insurer's approvals as a self-insurer under clause 384. The self-insurer can make an election to assume the liability for, and responsibility for the management of, the acquired body corporate's tail claims. Those claims, prior to an election, are the responsibility of the Authority as administrator of the workers' compensation scheme. On making this election, the self-insurer must provide the Authority with a guarantee in accordance with section 399. This guarantees payment of body corporate's tail claims if the self-insurer is not able to. This protects the interests of workers with entitlements which form part of the body corporate's tail claims. The Authority will retain liability for and responsibility for the management of the acquired body corporate's tail claims until the transfer date. The transfer date is agreed to by the Authority and the self-insurer and is when the transfer of liability for and responsibility for the management of the acquired body corporate's tail claims from the Authority to the self-insurer occurs. The clause provides a clear handover process for the liability and responsibility for the body corporate's tail claims. If the self-insurer does not make an election, the body corporate's tail claims, the Authority retains the liability and responsibility for the body corporate's tail claims. The definition of a tail claim captures claims that may exist where a scheme-insured employer becomes an eligible subsidiary of a self-insurer. The tail claim definition includes a claim in respect of an injury or death incurred or suffered by a worker employed by the body corporate before that self-insurer becomes an eligible subsidiary of another self-insurer and which entitles a worker or their dependents to compensation, other payments or damages at common law by an in accordance with Division 2 of Part 7 or section 366. Clause 397 re-enacts section 150A of the Accident Compensation Act 1985. Clause 398 provides a clear and transparent process for the acquisition of a self-insurer by another self-insurer. The acquiring self-insurer is required to notify the Authority in writing within 28 days of the acquisition. The acquiring self-insurer can make an election to assume the liability for, and responsibility for the 194

 


 

management of, the acquired self-insurer's tail claims. On making this election, the acquiring self-insurer must provide the Authority with a guarantee in accordance with section 399. This guarantees payment of the other self-insurer's tail claims if the acquiring self-insurer is not able to. This protects the interests of workers with entitlements which form part of the other self-insurer's tail claims. If the acquiring self-insurer does not make an election, then the liability for, and responsibility for the management of, the other self-insurer's tail claims is assumed by the Authority via revocation of the employer's approval as a self-insurer. The tail claims that formerly sat outside of the workers' compensation scheme, and were the responsibility of the other self-insurer, are returned to the scheme and the Authority assumes responsibility for them. The Authority acts as a safety net for tail claims to ensure that they continue to be paid and are managed in accordance with the Bill. If an election is made, liability for, and the responsibility for the management of the tail claim liabilities is assumed by the acquiring self-insurer on the transfer date; a date agreed by the Authority and the self-insurer. The clause also includes a comprehensive definition of tail claims to ensure that all claims of the acquired self-insurer are captured. The definition includes all claims that are held or assumed by the acquired self-insurer prior to transfer date are captured. The definition aims to avoid claims being left out and without either the acquiring self-insurer or Authority being responsible for them. This is a new clause, which has no equivalent in the Accident Compensation Act 1985. Clause 398 has been inserted to provide a clear process for the acquiring self-insurer to assume all liabilities held under the acquired self-insurer's approval as a self-insurer. Clause 399 requires a self-insurer to hold a guarantee in respect of the tail claims which it has elected to assume liability for, and responsibility for the management of. These tail claims include: its own tail claims; the tail claims of a self-insurer that becomes an eligible subsidiary of a holding company under clause 396; the tail claims of a scheme-insured body corporate the self- insurer has acquired under section 397(3); or the tail claims of 195

 


 

the other self-insurer that the self-insurer has acquired under section 398(3). The guarantee must be in force at all times, from the date that the employer assumes liability for the tail claims and until the Authority assumes the liability for the self-insurer's tail claims under section 407. The guarantee ensures that payment of the self-insurer's tail claims can be made if the self-insurer is not be able to pay them as and when they fall due. This protects the interests of workers with entitlements which form part of the self-insurer's tail claims. As with other guarantee provisions in Part 8, the assessment of the employer's tail claim liabilities must be carried out by an actuary approved by the Authority at intervals of not more than one year. This helps ensure that the value of the employer's tail claim liabilities is accurate and ensures sufficient guarantee coverage of the liabilities in the event that the self-insurer is unable to pay its liabilities as and when they fall due. The assessed tail claim liability of an employer or body corporate refers to the actuarial value of the current, non-current and contingent liabilities of the employer or body corporate for tail claims under the Act. Clause 399, with clause 400 below, re-enacts section 150B of the Accident Compensation Act 1985. Clause 400 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, of an acquired scheme-insured body corporate or an acquired self-insurer). The Minister can also issue a Ministerial Order confirming the method of calculating the settlement amount that must be paid by the Authority to a self-insurer in exchange for the self-insurer assuming liability for the tail claims formerly the responsibility of the Authority. This clause provides certainty and transparency in the calculation of settlement amounts payable to self-insurers who assume liability for tail claims from the Authority. Clause 400, with clause 399 above, re-enacts section 150B of the Accident Compensation Act 1985. 196

 


 

Clause 401 enables the Minister to make an order confirming arrangements that apply where a self-insurer assumes the tail claim liabilities of another self-insurer. The Ministerial Order can specify how the settlement amount payable by the acquired self-insurer to the acquiring self-insurer is calculated and how the amount is to be paid. This clause provides certainty and transparency in the calculation of settlement amounts and the circumstances in which they are payable. Clause 401 re-enacts section 150C of the Accident Compensation Act 1985. Clause 402 confirms what happens with the tail claim liabilities of an eligible subsidiary of a self-insurer when the eligible subsidiary is disposed of or divested by the self-insurer as outlined in section 397. The clause confirms that the self-insurer retains liability for and responsibility for the management of the tail claims of the eligible subsidiary until the self-insurer, itself, ceases to be a self-insurer. An eligible subsidiary of a self-insurer is included in the approval of the self-insurer although it has not been approved by the Authority to be a self-insurer in its own right. When the eligible subsidiary is divested by the self-insurer, the eligible subsidiary is no longer included in the self-insurer's approval. This clause provides certainty and transparency about what happens to the tail claims of an eligible subsidiary where a self- insurer divests itself of the eligible subsidiary. Clause 402 re-enacts section 150D of the Accident Compensation Act 1985. Subdivision 3--Employer that ceases to be self-insurer or otherwise to be liable for tail claims Clause 403 confirms that the Authority assumes the liability for and responsibility for the management of an employer's tail claims when that employer ceases to be a self-insurer. Clause 403 provides that the Authority is treated as the employer and workers can make their claim directly to the Authority; and Part 8 of the Bill will apply to the Authority as if it was a self- insurer. 197

 


 

To ensure that the Authority is aware of all claims that form the tail of the employer, clause 403 requires the employer to provide the Authority with 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. The Authority requires all relevant information and documentation in order to assess the value of the employer's tail claim liabilities and enable continuing management of worker claims. If the employer fails to provide all claims and other relevant documentation, it is liable to a penalty of 500 penalty units. If a former self-insurer does not provide the Authority with all claims and other relevant documents relating to the former self-insurer's tail claims, then there is a risk that some worker claims will not be assumed by the Authority and compensation payments due to workers or their dependants may not be made. To provide a clear delineation between the self-insurer having responsibility for its tail claims and the Authority assuming responsibility for them, clause 403 defines exit date as the date that the employer ceases to be a self-insurer or the date on which the Authority publishes a notice in the Government Gazette declaring that the employer has ceased to be liable for its tail claim liabilities. Tail claim is defined comprehensively to ensure that all worker claims of the employer which ceases to be a self-insurer are accounted for and assumed by the Authority under this clause. Clause 403 re-enacts section 151 of the Accident Compensation Act 1985. Clause 404 outlines general requirements of the assessment carried out by an actuary appointed by the Authority to assess the value of an employer's tail claims. This clause helps ensure transparency and fairness in the assessment of the employer's tail claim liabilities by providing a process that enables an employer to make submissions in response to the Authority-appointed actuary's assessments of its tail claim liabilities. Prior to finalising an assessment report, the Authority-appointed actuary is required by clause 404 to consider any comments made by an employer within 28 days of receiving a proposed assessment. Clause 404 re-enacts section 151A of the Accident Compensation Act 1985. 198

 


 

Clause 405 sets out the process involved in assessing an employer's tail claims when the employer ceases to be a self-insurer under clause 403. Within 28 days after the Authority assumes liability for the employer's tail claims, the amount of the tail claim liabilities of the employer must be assessed by an Authority- appointed actuary. This clause helps ensure transparency and fairness in the assessment of the employer's tail claim liabilities by providing a process that allows the employer to make submissions in response to the Authority-appointed actuary's assessments. Prior to finalising an assessment report, the Authority-appointed actuary is required to consider any comments made by an employer within 28 of receiving a proposed assessment. Within 28 days of receiving the finalised assessment, the employer is required to make payment to the Authority. This provision is intended as a risk and financial management tool which can be used by the Authority to establish the value of the tail claim liabilities to be returned to the scheme and assumed by the Authority when the employer ceases to be a self-insurer. Clause 405 re-enacts section 151B of the Accident Compensation Act 1985. Clause 406 sets out a process for the annual assessment of the tail claim liabilities of an employer for six years after the employer ceased to be a self-insurer. The claims to be assessed are those assumed by the Authority under clause 403. An annual assessment of the employer's liabilities helps ensure that the assessed value of the employer's liabilities is still accurate and helps keep the Authority informed of any changes to the assessed liabilities which may require payments to be made at the end of the third and sixth year of the liability period. Where the assessed tail claims value at the end of the third or sixth year of the liability period is greater than the initial or third year assessed tail claims value, the employer is required to pay the difference in value to the Authority. If the assessed tail claims value at the end of the third or sixth year of the liability period is less than the initial or third year assessed tail claims value, the Authority is required to pay the difference to the employer. Payments to the Authority at the end of the third or 199

 


 

sixth year need to be made within 28 days of the employer receiving notice of the revised assessment. The making of payments following assessments at the end of the third and sixth year of the liability period help ensure that the employer is not paying more than what they would have in claims had they continued to be a self-insurer. The payments to the Authority ensure that scheme-insured employers do not subsidise the claim costs of the employer who ceased being a self-insurer. Clause 406 aims to ensure that all employers pay a fair and equitable share of the cost of the scheme. Clause 406 re-enacts section 151C of the Accident Compensation Act 1985. Clause 407 requires an employer to provide the Authority with a guarantee that the employer will be able to satisfy any payments that may be due to the Authority during the liability period. The guarantee needs to be in force or capable of being relied on from the date that the Authority assumes the employer's tail claims liability until 28 days after the notice of revised assessment of the employer's tail claims at the end of the sixth year of the liability period. The guarantee is required in case of the insolvency of the employer and when there are unexpected additional claims from workers of the employer made following the date on which the employer ceased to be a self-insurer. Although these claims were not made until after the exit date, the workers were workers of the employer at the time of injury. The clause intends to avoid the need for the scheme to cover the cost of the employer's assessed liabilities where the assessed tail claims liabilities increase during the liability period. An employer which fails to provide a guarantee under clause 407 may be subject to a penalty. This acts an incentive for an employer to provide a guarantee and to avoid requiring the Authority and scheme-insured employers to pay for the cost of the employer's tail claims liabilities if the employer is not able to. Penalty amounts have been modified to align with the penalty scale in the Sentencing Act 1991. This clause enables an employer to provide a new guarantee in lieu of the guarantee that has already been provided after the employer receives a notice of assessment of tail claim liabilities under clause 406 indicating that the guarantee provided is 200

 


 

inadequate and does not meet the guarantee requirements in clause 407. The clause aims to provide the employer with fair opportunity to satisfy the guarantee requirements without penalty. Clause 407 re-enacts section 151D of the Accident Compensation Act 1985. Clause 408 provides a clear and transparent dispute resolution process to deal with a disagreement about the value of the employer's tail claim liabilities at the end of the liability without unnecessary delay and court involvement. If the employer disagrees with the Authority-appointed actuary's final revised assessment of the employer's tail claim liabilities, the employer can, at their own cost, appoint an actuary to review the final revised assessment completed by the Authority-appointed actuary. The employer-appointed actuary is required to provide their comments on the final assessment within 28 days of the employer receiving it. If agreement cannot be reached on the final assessment of the employer's tail claim liabilities, the employer and the Authority can agree to appoint another actuary to carry out a further assessment with the cost to be shared equally. When deciding to appoint another actuary, the employer and the Authority must also agree to be bound by the actuary's assessment. This provides an independent process to resolve the dispute where there is disagreement between the employer and the Authority on using the process. If the employer and the Authority do not agree to use the dispute resolution process outlined above, then the Authority and the employer will be bound by final assessment completed under section 406. This brings closure to the dispute about the final assessment. Clause 408 re-enacts section 151E of the Accident Compensation Act 1985. Clause 409 provides a process to be used by the Authority to review an employer's circumstances when the eligible subsidiary (that is, a wholly-owned subsidiary) of a self-insurer becomes a non- WorkCover employer within the meaning of Part 9 of the Bill. 201

 


 

The review by the Authority on the ground outlined in clause 384(2)(c)(i) is intended to confirm if the employer should retain or the Authority should assume the liability for, and the responsibility for management of, tail claims of the employer. If the Authority assumes the liability for, and the responsibility for management of, tail claims of the employer, Part 9 of the Bill will apply to the liability, workers of the employer can lodge their claims directly with the Authority and Part 8 of the Bill will apply to the Authority as if it was a self-insurer. The Authority will step into the shoes of the employer for any proceedings in progress when the Authority assumed the employer's tail claim liability. To ensure that the Authority is able to manage the employer's tail claims, clause 409 requires the employer to give the Authority, within 28 days after the Authority assumes liability for the employer's tail claims, all claims and documents related to the tail claims that are in possession of the employer. This provides certainty for workers with respect to the ongoing management of their claims following the assumption by the Authority. It also helps preserve the integrity of the scheme by expressly providing for the reallocation of liability and responsibility for the management of the claims. The definition of tail claims in this clause includes all claims, regardless of when they are made, in respect to an injury or death suffered by a worker employed by the employer while the employer was an eligible subsidiary of the self-insurer. Clause 409 re-enacts section 152 of the Accident Compensation Act 1985. Division 7--Miscellaneous Clause 410 provides for the Authority to make guidelines in relation to matters in the Bill relevant to self-insurers, any regulations or Ministerial Orders made under the Bill. Clause 410 provides a clear and transparent process for the making of guidelines which requires the Authority to publish its proposed guidelines and to confirm how and by when interested parties such as self-insurers can make submissions or provide feedback on the proposed guidelines. Clause 410 also requires 202

 


 

the Authority to provide a copy of the proposed guidelines to any person who requests it during the consultation period. The Authority can make the guidelines (with or without any modifications) following the Authority's consideration of any written submissions and comments received within the specified period. Following the consultation period, the Authority can finalise the guidelines with or without any modifications. The Authority must ensure that guidelines made under this clause are published and generally available so that any interested parties have access to the guidelines and can operate in accordance with them where applicable. Clause 410 re-enacts section 153(1) to (5) of the Accident Compensation Act 1985. Clause 411 confirms that guidelines made by the Authority under this section 410 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. Reliance on the guidelines by a self-insurer does not give rise to liability for the Authority or affect the rights and obligations of any person who relies on the guidelines made under clause 410. The guidelines are solely intended to provide guidance to self- insurers and are not a substitute for relying on the Bill or seeking independent legal advice about the implications of the Bill. Clause 411 re-enacts section 153(6) of the Accident Compensation Act 1985. Clause 412 provides certainty and transparency about what disclosures can be made under the Bill, who can make those disclosures and to whom those disclosures can be made. This clause is important since it aims to protect information acquired by persons appointed or authorised under the Bill and to restrict its disclosure other than in accordance with clause 412. 203

 


 

Failure to comply with clause 412 attracts a penalty as a deterrent against the improper disclosure of information. The penalty is consistent with the penalty scale in the Sentencing Act 1991. Clause 412 re-enacts section 155 of the Accident Compensation Act 1985. PART 9--NON-WORKCOVER EMPLOYERS Clause 413 defines, for the purposes of Part 9, the terms actuary, available assets, exit date, initial assessment, liability period, non- WorkCover employer, revised assessment tail claims and tail claims liabilities. The definitions operate the same as those in section 164 of the Accident Compensation Act 1985; and non-WorkCover employer and tail claims have been updated to reflect policy changes. The definition of actuary establishes the minimum requirements of an actuary for the purposes of Part 9. This is necessary as an actuary in this Part is involved in highly technical financial analysis, such as the assessment of the value of a non-WorkCover employer's tail claim liabilities. The definition of available assets is the portion of the Authority's total assets assessed by an actuary to be available to fund tail claims liabilities. It is important for the Authority to have a sufficient amount of available assets from which existing and future tail claims liabilities can be met. If the Authority does not have a sufficient amount of available assets, then it could mean that some existing and future worker claims may not receive the compensation that they are entitled to under the Bill. The definition of exit date is the date on which an employer becomes a non-WorkCover employer. The definition is important to understanding the six year liability period during which the former employer's tail claim liabilities, assumed by the Authority, are assessed by an Authority-appointed actuary. The definition of initial assessment relates to the assessment of tail claims carried out by an actuary under section 415. The definition is important as it refers to an actuary's initial assessment of the employer's tail claims liabilities completed 204

 


 

immediately before the beginning of the six year liability period by an Authority-appointed actuary; and establishes the value of the non-WorkCover employer's tail claims which are to be assumed by the Authority and against which the three year assessment will be compared. The definition of liability period is the six year period during which the non-WorkCover employer's tail claims liabilities, as assumed by the Authority on exit date, will be assessed annually by an Authority-appointed actuary. The definition of non-WorkCover employer relates to those employers who are exempt from certain employer obligations under the Bill as a result of being licensed under Commonwealth workers compensation legislation. The definition is intended to capture the same employers as the equivalent definition in the Accident Compensation Act 1985, but has been updated in order to reflect changes to introduce an employer registration process; and the new use of "eligible subsidiary" to refer to wholly owned subsidiaries or subsidiaries in which all of the shares are owned by an employer who is a self-insurer or a body corporate. The definition of revised assessment refers to an assessment of a non-WorkCover employer's tail claims liabilities carried out by an actuary under section 417 at the end of each year of the six year liability period. The definition of tail claims means claims made on or after the exit date in respect of injuries or deaths suffered by workers employed by a non-WorkCover employer before the employer became a non-WorkCover employer; and which entitle a worker or their dependants to compensation under the Bill. The definition is important as it identifies the claims that are to be included in the non-WorkCover employer's tail claims. It is not limited to those claims already made at the exit date but also include claims made following the exit date by a worker who was employed by the non-WorkCover employer prior to the exit date. It is important that the definition of tail claims be comprehensive to ensure that it captures all known or possible claims at the exit date. This ensures that workers can continue to lodge claims with respect to the non-WorkCover employer following the exit date for injuries or deaths suffered prior to the exit date. 205

 


 

The definition of tail claims liabilities refers to those claims for which the employer has assumed liability and responsibility, until the employer's approval as a self-insurer is revoked by the Authority. At the time that the employer ceases to be a self- insurer, the sum total of all claims the employer has, are returned to the Authority. The definition is used in relation to the claims that workers have made and for which they are entitled to compensation under the Bill or Accident Compensation Act 1985. This clause re-enacts section 164 of the Accident Compensation Act 1985. Clause 414 sets out what happens to and who is responsible for an employer's tail claim liabilities when they become a non- WorkCover employer. The provision provides important certainty about what is included in an employer's tail claims. Certainty about what claims are included in an employer's tail claims assists in determining which claims have to be assessed for their value so that the Authority knows the extent of liability that it is required to assume when an employer becomes a non- WorkCover employer. Certainty about the number and value of claims at the exit date also ensures that the non-WorkCover employer provides the Authority with a guarantee that is sufficient to cover the existing and future value of the non- WorkCover employer tail claims liabilities. Where the non-WorkCover employer was a registered employer or a self-insurer, the Authority assumes the liability for and responsibility for the management of the non-WorkCover employer's tail claims. The Authority also assumes the non- WorkCover employer's tail claims where the non-WorkCover employer was a subsidiary of a self-insurer and the Authority has determined to assume liability under clause 409(3). Clause 409(3) requires the Authority to review an employer's approval as a self-insurer if the employer is to become a non- WorkCover employer to determine whether the employer should retain or the Authority should assume the liability for, and the responsibility for management of, the employer's tail claims. This helps ensure that the employer has the financial and claims management resources to continue to have liability for, and the responsibility for the management of, their tail claims. 206

 


 

This clause re-enacts section 165 of the Accident Compensation Act 1985. Clause 415 provides for the assessment of a non-WorkCover employer's tail claim liabilities and available assets by an actuary appointed by the Authority. The provision applies to a non-WorkCover employer who was insured under a WorkCover policy or was registered employer or was a self-insurer. The purpose of clause 415 is to determine the value of the non- WorkCover employer's tail claim liabilities that are to be assumed by the Authority; and the value of the guarantee that must be put in place during the six year liability period to protect against claim numbers and values increasing unexpectedly and insolvency. The cost of the assessment carried out the actuary is payable by the non-WorkCover employer. On having completed their assessment, the Authority-appointed actuary is required to provide the non-WorkCover employer with a copy of their assessment for their review. The non- WorkCover employer then has 28 days, or a longer period as agreed between the Authority and the non-WorkCover employer, in which to provide comments to the actuary. Providing the employer with the opportunity to provide comments ensures that there is transparency and fairness in the tail claims assessment process; and helps to reduce the likelihood of a dispute arising between the employer and the Authority due to the lack of notice or consultation. On receiving the non-WorkCover employer's assessment, the actuary is required to finalise their assessment of the non- WorkCover employer's tail claim liabilities and available assets. This step is necessary to bring finality to the tail claims and available assets assessment process. It also avoids unnecessary delays in determining if the non-WorkCover employer continues to have sufficient available assets to cover the tail claims liabilities. This clause re-enacts section 166 of the Accident Compensation Act 1985. 207

 


 

Clause 416 Following finalisation of the actuary's assessment under section 415, if the non-WorkCover employer was insured under a WorkCover policy or was a registered employer and the initial assessment is that the tail claim liabilities exceed the available assets, the non-WorkCover employer must pay the amount of the difference to the Authority. If the non-WorkCover employer was a self-insurer, the non-WorkCover employer must pay the assessed value of the tail claims to the Authority. Payment of these amounts needs to be made within 28 days of the non-WorkCover employer receiving notice of the initial assessment from the Authority. If the non-WorkCover employer does not make payment as required, then the amount plus any interest can be pursued by the Authority as a debt. Clause 416 allows the Authority to recover an amount to reflect the increase in value of the tail claims liabilities during the liability period by characterising the change in the value of tail claims liabilities as an enforceable debt. This means that the Authority can enforce the debt without the need to commence legal proceedings. Clause 416 consolidates and re-enacts sections 167 and 168 of the Accident Compensation Act 1985. Clause 417 requires the Authority to ensure the annual actuarial assessment of a non-WorkCover employer's tail claims liabilities; which a non-WorkCover employer must pay for, may comment on, and must receive from the Authority. This provision enables the Authority, through close and timely monitoring, to manage the financial risk of tail claim liabilities it has assumed from the non-WorkCover employer. This ensures that any deterioration in claims can be proactively identified by the actuary appointed and managed by the Authority. The annual assessment requirements applies over the six year liability period, which reflects the maximum possible length of a self-insurer's approval and provides sufficient time for any issues with the tail claims assumed by the Authority on the exit date to occur. The rationale for passing the cost of the assessment on to the non-WorkCover employer is because the Authority has assumed liability and responsibility for the management of the non-WorkCover employer's tail claims. 208

 


 

The actuary carrying out the assessment must provide a copy of their proposed assessment to the non-WorkCover employer which then has 28 days, or a longer period as agreed between the Authority and the non-WorkCover employer, to provide comments. Providing the employer with the opportunity to provide comments ensures that the tail claims assessment process is fair and transparent. This then helps reduce the likelihood of a dispute arising between the employer and the Authority due to the lack of notice or consultation. After considering the non-WorkCover employer's comments, the actuary must finalise their assessment of the non- WorkCover employer's tail claim liabilities. Clause 417 re-enacts section 169 of the Accident Compensation Act 1985. Clause 418 This provision, like section 419, deals with the situation where the value of the tail claim liabilities, when assessed during the liability period, varies from an earlier assessment. In section 418, the focus is on the value of the tail claim liabilities as assessed at the end of the third year of the liability period as compared with the initial assessment. A change in the value of the tail claim liabilities represents a change to the risk that was assumed by the Authority on exit date. If the claims risk held by the Authority increases during the liability period, then the non-WorkCover employer is required to compensate the Authority for the increase. If the value of the tail claim liabilities falls as compared with the value on exit date, then the risk carried by the Authority is reduced meaning that the Authority would need to pay the non-WorkCover employer the difference. The value of the tail claim liabilities as assumed by the Authority under section 414 is fixed at a specific point but the value of claims can vary over the life of a claim depending on the nature and extent of a worker's injury. This provision and section 419 specifically provide for the possibility of claim numbers and values increasing unexpectedly and for the adjustment of the non-WorkCover employer's claim during the liability period. Clause 418 re-enacts section 170 of the Accident Compensation Act 1985. 209

 


 

Clause 419 This provision, like section 418, deals with the situation where the value of the tail claim liabilities, when assessed during the liability period, varies from an earlier assessment. In section 419, the focus is on the value of the tail claim liabilities as assessed at the end of the third year of the liability period as compared with the assessment at the end of the sixth year (the end of the liability period). The sixth and final year of the liability period marks the end of the need for the non-WorkCover employer to continue to be accountable to the Authority for any increase in value of the tail claims liabilities assumed by the Authority as compared with earlier tail claim liabilities value. If the sixth year assessment is greater than the third year assessment, then the non-WorkCover employer must pay the difference to the Authority. If the value of the sixth year assessment is less than the third year assessment, then the Authority is required to pay the difference to the non-WorkCover employer. The making of payments following the assessment at the end of the sixth year of the liability period helps ensure that the non- WorkCover employer is not paying more than what they would have in claims had they continued to be a self-insurer. The payments to the Authority ensure that scheme-insured employers do not subsidise the claim costs of the employer who became a non-WorkCover employer. Clause 419 re-enacts section 171(1) and (4) of the Accident Compensation Act 1985. Clause 420 This provision requires a non-WorkCover employer to pay the amounts under section 418 and 419 following assessments as to the value of tail claim liabilities. The non-WorkCover employer needs to make payment within 28 days of receiving a notice of the revised assessment, or a longer period as agreed between the Authority and the non-WorkCover employer. If the employer does not make payment as required by this provision, then the provision allows the Authority to recover the amount plus interest as a civil debt. The provision facilitates the recovery by the Authority of an increase in value of the tail claims liabilities during the liability period by characterising the change in the value of tail claims liabilities as an enforceable debt. Without this provision, the Authority would need to commence legal proceedings to establish then recover the debt. 210

 


 

Clause 420 re-enacts section 171(2) and (3) of the Accident Compensation Act 1985. Clause 421 During the six year liability period, when the tail claim liabilities of the non-WorkCover employer are being assessed annually, the non-WorkCover is required to provide a guarantee given by an authorised deposit-taking institution (ADI) to or in favour of the Authority. An ADI includes banks, building societies and credit unions. This guarantee is required to protect the Authority against the non-WorkCover employer's insolvency and to ensure that the non-WorkCover employer will be able to satisfy any payments that may be due to the Authority during the liability period. As outlined in section 418 and 419, it is possible that the non- WorkCover employer will need to pay an amount to the Authority where the assessed value of the tail claim liabilities exceed an earlier assessment. The guarantee needs to be in force or capable of being relied on until 28 days after the notice of revised assessment of the non-WorkCover employer's tail claims at the end of the sixth year of the liability period is received under section 419. This provides time for the Authority to rely on the guarantee if required. The value of the guarantee must be 50% of the assessed tail claim liabilities for the first year of the liability period; and, for the second and subsequent years of the liability, the revised amount of the tail claim liabilities still outstanding as assessed at the end of each subsequent year for the duration of the next year until the date a payment (if any) is made under section 419. This is necessary to ensure that, if the non-WorkCover employer is not able to make the payment of any necessary adjustments out of its own available assets that the Authority will be able to receive payment by relying on the guarantee. In order to protect against claims deterioration, the non- WorkCover employer is also required to provide a guarantee given by an ADI to or in favour of the Authority in a form approved by the Authority. Claims deterioration can occur if there are injured worker claims made following the date on which the employer became a non-WorkCover employer. Although these claims may not be made until after the exit date, any workers who make these claims would be considered 211

 


 

workers of the employer before they became a non-WorkCover employer and at the time of injury. The guarantee ensures that where there is claims deterioration beyond what might have been expected by the non-WorkCover employer and the Authority, there are sufficient funds available to satisfy the cost of those claims. Since the claims would form part of the non-WorkCover employer's tail, any increase in the tail claims liabilities would be payable by the non-WorkCover employer to the Authority. The guarantee provided by the non- WorkCover employer is required to cover specific two periods: from the exit date through to the outcome of the third year assessment; and from the end of the third year through until the outcome of the sixth year assessment. Clause 421 re-enacts section 172(1) of the Accident Compensation Act 1985. Clause 422 This provision permits the non-WorkCover employer to provide a new guarantee in lieu of a guarantee in force under section 421 where the non-WorkCover employer receives a notice of assessment of tail claim liabilities under section 417. This provides the non-WorkCover employer with an opportunity to obtain a new guarantee following the initial assessment by an actuary appointed by the Authority. This helps ensure that there are sufficient funds available to satisfy the cost of the claims assumed by the Authority on exit date. Clause 422 re-enacts section 172(1A) of the Accident Compensation Act 1985. Clause 423 This provision allows the Authority to rely on the guarantee provided by the non-WorkCover employer under clause 421 to recover any losses it has suffered in circumstances where the non-WorkCover employer does not make payment as required under section 418 or 419; or where the non-WorkCover employer ceases to trade, has a receiver or a receiver and manager appointed to manage its affairs, or enters into a compromise agreement with its creditors. This provision makes clear the events which allow the Authority to rely on the guarantee provided by the non-WorkCover employer. The ability to rely on the guarantee is important to prevent the Authority making substantial losses due to the non-WorkCover employer's failure or inability to meets its obligations during the 212

 


 

liability period. The value of the tail claims liability that the Authority may have assumed from the non-WorkCover employer could be considerable and so this provision provides the Authority with an important protection mechanism. This provision also assists the Authority by allowing it to rely on the guarantee provided by the non-WorkCover employer in any recovery proceedings. A certificate signed by an officer or employee of the Authority which certifies that an event specified in section 423(a) or (b) has occurred and that the Authority has suffered a loss as a result is to be considered evidence of those matters. If there is no evidence to the contrary, then the certificate is deemed to be proof of the matters specified in it. Clause 423 re-enacts sections 172(2) and (3) of the Accident Compensation Act 1985. Clause 424 This provision provides a process for dealing with a disagreement by a non-WorkCover employer about the final revised actuarial assessment of its tail claim liabilities made under section 417. The provision is intended to ensure that any disagreement is dealt with fairly and transparently and without unnecessary delay and court involvement. If the non-WorkCover employer does not agree with the final assessment of tail claims liabilities completed by the Authority- appointed actuary, the non-WorkCover employer can appoint an actuary to review the assessment within 28 days of the non- WorkCover employer receiving it. This timeframe ensures procedural fairness by allowing sufficient time for the employer to consider their position and to seek advice if they wish, before responding to the Authority. If the non-WorkCover employer's and the Authority's actuary cannot agree on the final assessment of the non-WorkCover employer's tail claim liabilities, then another actuary can be appointed to complete a further assessment of the non- WorkCover employer's tail claim liabilities. The non- WorkCover employer and the Authority must agree to be bound by the actuary's assessment. This agreement is necessary to ensure that the outcome of the independent assessment of the non-WorkCover employer's tail claim liabilities brings the dispute to an agreed resolution without further inquiry or delay. 213

 


 

If the non-WorkCover employer and the Authority do not agree to use the dispute resolution process provided under this section, the non-WorkCover employer and the Authority will be bound by the final revised assessment completed under clause 417. This brings closure to the final assessment dispute process and helps avoids the dispute being prolonged unnecessarily. This is intended to act as an incentive for both parties to come to an agreed resolution through the appointment of a further actuary to complete a final assessment of the non- WorkCover employer's tail claims liabilities. Clause 424 re-enacts section 173 of the Accident Compensation Act 1985. Clause 425 The provision aims to make the circumstances in which the Authority is required to make payment to a non-WorkCover employer under Part 9 as transparent as possible. Except as expressly provided for in Part 9, the Authority is not liable to make any payment or repayment to a non-WorkCover employer. Clauses 418 and 419 expressly provide that the Authority may be required to make payments following adjustments to the value of a non-WorkCover employer's tail claims liabilities at the end of the third or sixth year of the liability period. Part 9 governs the extent of the Authority's liability with respect to the assessment of the tail claims liabilities of non-WorkCover employers. Clause 425 re-enacts section 174 of the Accident Compensation Act 1985. Clause 426 prevents legal proceedings being brought in relation to assessments under Part 9. Clause 426 operates in conjunction with clause 618 Supreme Court--limitation of jurisdiction--no proceeding, which confirms that proceedings cannot be brought under clause 426 of the Bill. Clause 426 re-enacts section 175 of the Accident Compensation Act 1985. Clause 427 confirms that Part 9 continues to apply until the end of the six year liability period with respect to the tail claim liabilities of a non-WorkCover employer who ceases to be a non-WorkCover employer and becomes an employer registrable under clause 434, a self-insurer or an eligible subsidiary of a self- insurer. The provision confirms that Part 9 is only of relevance 214

 


 

to non-WorkCover employers while they remain non- WorkCover employers. If an employer is no longer a non- WorkCover employer, they will be subject to employer-related provisions in the rest of the Bill. Clause 427 re-enacts section 176 of the Accident Compensation Act 1985. Clause 428 imposes a positive obligation on non-WorkCover employers to comply with Part 9 and provides corresponding penalties for contraventions. The penalties are intended to act as a deterrent and provide non-WorkCover employers with an incentive to comply with Part 9. Penalty amounts have been modified to align with the penalty scale in the Sentencing Act 1991. Clause 428 re-enacts section 177 of the Accident Compensation Act 1985. PART 10--PREMIUMS AND REGISTRATION OF EMPLOYERS Part 10 of the Bill covers the same matters as the Accident Compensation (WorkCover Insurance) Act 1993, which is to be repealed, but differs in some procedural ways. The Bill is not intended to alter in any way the insurance cover that workers and employers in the Victorian workers compensation scheme receive. Under Part 10 of the Bill, an employer who meets the criteria set out in clause 430(1) will be required to pay premium and apply to be registered as an employer with the Authority. The premium to be paid by an employer is payment for the indemnity provided by the Authority to employers under the statutory contract of insurance. The registration of an employer helps ensure that the Authority has all relevant information about the employer for the purposes of assessing premium and managing claims. All employers will have a statutory contract of insurance with the Authority which will cover employers for the cost of workplace injuries suffered by their workers, regardless of whether the employer is registered. If a worker makes a claim for a work-related injury, the Authority, as the insurer, is liable to pay the costs of the worker's claim. The employer, as the holder of a statutory contract of insurance, is required to pay the excess for the workers compensation cover that they have. Part 10 requires employers to pay premium as calculated by the Authority in accordance with the premiums order, for workers compensation insurance cover for a premium period. Part 10 provides a premium setting process that 215

 


 

is transparent and that requires employers to provide the Authority with accurate and timely information about their rateable remuneration. This helps ensure that all employers are paying their share of premium and are not subsidising or being subsidised by other employers. The Accident Compensation (WorkCover Insurance) Act 1993 required most employers to obtain and keep in force a contract of insurance with the Authority while they were employers, as defined in that Act. Employer rights and obligations were spread between the Accident Compensation Act 1958, the Accident Compensation (WorkCover Insurance) Act 1993 and the workers' compensation insurance policy document. The workers compensation insurance policy document outlined the employer's obligations in relation to their workers compensation insurance policy and confirmed the role of the Authority as insurer of the employer for workplace injuries. By comparison, this Bill contains all matters relating to an employer's statutory contract of insurance and the need for a separate workers compensation insurance policy document is removed. This is intended to reduce compliance costs for employers and aims to make it easier for employers to understand and comply with their obligations as they will all be contained in the one place. In addition to existing employer obligations, Part 10 of the Bill now provides specific disclosure requirements for employers to help ensure that the Authority is kept informed of any change in the employer's circumstances. A change in an employer's circumstances, such as an increase in the number of workers or a change in industry can have an impact on the amount of premium that may be payable by an employer. Up front and full disclosure by an employer ensures that appropriate premium is calculated. Part 10 of the Bill also introduces a new premium review right so that an employer can request a review of premium by VCAT. If an employer is dissatisfied with the outcome of an internal review by the Authority, then the employer can request that the Authority refer their objection to VCAT or the Supreme Court. If after a review by VCAT, the employer remains dissatisfied, they can then appeal to the Supreme Court. The new right to seek review in VCAT is intended to provide a more accessible and affordable way for an employer to challenge the amount of premium calculated by the Authority. Currently under the Accident Compensation (WorkCover Insurance) Act 1993, an employer can ask the Authority to review the premium it has calculated. If the employer is dissatisfied with the outcome of the Authority's internal review, they can appeal to the Supreme Court. This can be an expensive and time-consuming process for employers. 216

 


 

Division 1--Preliminary Clause 429 provides that self-insurers, non-WorkCover employers and employers which do not have workers whose employment is connected to Victoria are expressly excluded from the application of Part 10. The obligations on those employers are contained respectively in Part 8 (Self-insurers) and Part 9 (non-WorkCover employers) and the laws of other jurisdictions. The reason such employers are not required to pay premium is because they self-insure (self-insurers), are insured under the Federal workers compensation scheme (non-WorkCover employers) or do not have workers with work connected to Victoria. Clause 430 imposes an express obligation to pay premium on employers which have one or more workers and which pay those workers a total of more than $7500 in remuneration per financial year or employ an apprentice. Employers whose remuneration is $7500 per financial year or less are not required to pay premium; however they still receive the indemnity and statutory contract of insurance. Provision is made for claims against such employers in Division 2 of Part 2. An employer's obligation to pay premium is unaffected by the employer's registration status. Registration is a separate requirement, under clause 434, for employers which have an obligation to pay premium under clause 430(1). Clause 431 defines when a group will exist for the purpose of Part 10. The concept of a group is used in clause 432 (joint and several liability) and in the premiums order. A group can exist, for example, where there is an employment arrangement where one or more workers of an employer do work for or in connection with businesses carried on by the employer and other persons--then the employer and each of those other persons are all members of the group. Or a group can exist where two or more persons have a controlling interest in each of two businesses--then the persons who carry on the businesses and the persons who have the controlling interests are all members of the group. Clause 431 operates the same as section 66 of the Accident Compensation (WorkCover Insurance) Act 1993. 217

 


 

Clause 432 provides that a person who is or was a member of a group is jointly and severally liable with other members of the group to pay premium owed by, or a penalty imposed on, any group member. The provision is intended to facilitate the collection of premium or penalty owed by employers under the Bill. Clause 432 operates the same as section 66A of the Accident Compensation (WorkCover Insurance) Act 1993. Division 2--Registration Clause 433 contains a flowchart which outlines when an employer is required to apply to be registered with the Authority under Part 10. Clause 13 provides that a flow chart does not form part of this Bill; and it is not intended to have any legal status. The flowchart in this clause is intended to assist the reader to understand the steps involved in registration. Clause 434 requires the Authority to maintain a register of employers for the purposes of this Act. Self-insurers under Part 8 and non- WorkCover employers under Part 9 are not scheme-insured employers and so are not required to register with the Authority under clause 434. Employers who were deemed to hold an insurance policy under the Accident Compensation (WorkCover Insurance) Act 1993 will be required to register under the provision. The registration process replaces the requirement under section 7 of the Accident Compensation (WorkCover Insurance) Act 1993 for employers to obtain and keep in force a workers compensation insurance policy. For this reason, subclause 434(2) provides that employer who obtained and kept in force a workers compensation insurance policy under the Accident Compensation (WorkCover Insurance) Act 1993 immediately before 1 July 2014 is to be treated as continuing to comply with the equivalent obligation in the Bill. These employers are not required to apply to be registered with the Authority following commencement of this provision, as they will be treated as registered. Subclause 434(3) requires an employer that is not already registered and which satisfies the criteria in clause 430(1) to apply to be registered with the Authority within 60 days of becoming aware, or of when it could reasonably have been expected to become aware, that it satisfies the criteria in 218

 


 

clause 430(1). This is intended to cover employers who satisfy the criteria on or after 1 July 2014, as well as those employers which were required to obtain and keep in force a workers compensation insurance policy under the Accident Compensation (WorkCover Insurance) Act 1993 but did not do so. Registration by an employer which was required to obtain and keep in force a workers compensation insurance policy under the Accident Compensation (WorkCover Insurance) Act 1993 but did not do so brings an end to the employer's period of non-compliance under the Accident Compensation (WorkCover Insurance) Act 1993. Registration by a non- compliant employer under clause 434 does not excuse that employer from the consequences of failing to comply with their obligations under the Accident Compensation (WorkCover Insurance) Act 1993 such as the payment of premium for the uninsured period, default penalty and reimbursement of claim costs. Those obligations remain enforceable after 1 July 2014. Employers which fail to register with the Authority as required under the Bill may be liable for a penalty under subclause (3); in addition they may be liable to pay a default penalty under clause 452 of up to 100% of the premium that they should have paid had they complied with the requirement under the Bill to register with the Authority under subclause (3). Subclauses 434(4), (5), (6) and (7) set out the powers and responsibilities of the Authority in relation to registration. The Authority can cancel the registration of employers who are no longer employers or who are no longer required to pay premium under s 430(1) and so don't need to appear on the register. The Authority cannot register an employer more than once on the register unless the Authority is satisfied that the employer is a trustee and the trust's businesses are carried out independently and merit being recorded on the register separately. The register is intended to assist the Authority in contacting employers for the purpose of assessing premium and issuing premium notices; managing and administering claims; seeking further information in relation to an employer's circumstances; and seeking further information about a worker's injuries. The Authority's ability to maintain a register of employers 219

 


 

under clause 434 helps preserve the accuracy and integrity of the information the Authority has for the purposes of the Bill. Clause 435 Clause 435(1) provides that all employers have a statutory contract of insurance with the Authority. The statutory contract of insurance provides an employer with workers compensation cover for claims made under the Bill, by making the Authority liable for those claims (see Part 3 of the Bill), and requires the employer to pay premium in accordance with the Act and to comply with other provisions in the Act. The statutory contract of insurance provided for in the Bill ensures that all employers are insured; and all workers are protected in the event of a workplace injury, irrespective of whether or not the employer is registered under clause 434. This is intended to have the same outcome as the Accident Compensation (WorkCover Insurance) Act 1993 but, instead of being required or deemed to keep in force a workers compensation insurance policy and required to comply with the Accident Compensation (WorkCover Insurance) Act 1993, an employer is automatically covered by the statutory insurance. The concept in the Accident Compensation (WorkCover Insurance) Act 1993 of deeming an employer which fails to comply with this requirement to have a contract of insurance when a worker lodges an injury claim is, therefore, no longer required. Clause 436 requires registered employers to notify the Authority within 14 days of any change in their circumstances which may have an impact on the amount of premium that may be payable. This includes, for example, where there is a change in the employer's predominant workplace activity, the type of industry they operate in, workplace location or amount of rateable remuneration. A change in circumstances may impact on premium payable, and so the 14 day timeframe is provided to ensure that employers are proactive and do not withhold information from the Authority to reduce their premium liability. This also helps avoid other employers in the scheme subsidising the non- compliant employer. For these reasons, failure to notify the Authority attracts a penalty. 220

 


 

Clause 437 provides that a certificate can be issued by the Authority or a person authorised by the Authority confirming that an employer is or is not required to be registered under the Bill. The employer can use this certificate as confirmation of their registration as an employer under the Bill and, in this way, is intended to provide certainty to the employer that they have complied with their registration obligation. Clause 437 operates the same as section 13 of the Accident Compensation (WorkCover Insurance) Act 1993, but has been updated to refer to the new registration of employer process instead of the requirement that an employer hold and keep in force a workers compensation insurance policy. Clause 438 requires a person who is or was an employer to which clause 430(1) applies to preserve their books and accounts for not less than five years after the completion of the transactions to which they relate. This provision is important as the preserved books and accounts may provide important information about an employer's situation at a particular point in time. These types of records assist the Authority if it seeks to adjust premium under Part 10 and assists an employer if they want to object to an amount of premium for a historic premium period. The requirement to preserve books and accounts is consistent with an employer's obligation to preserve financial accounts and records for tax purposes and in the case of audit by the State Revenue Office. This clause operates the same as section 69 of the Accident Compensation (WorkCover Insurance) Act 1993. Division 3--Rateable remuneration Clause 439 requires an employer to provide the Authority with an estimate of its rateable remuneration within 28 days after the Authority has given the employer a notice under this clause. The employer's estimate of their rateable remuneration may be used by the Authority to estimate the premium that the employer will be required to pay for the forthcoming financial year and is, accordingly, critical information for the calculation of premium payable. Failure by the employer to provide an estimate in the required time frame attracts a penalty. The penalty is intended to act as a deterrent and to encourage employers to comply with requests 221

 


 

for information from the Authority. Penalty amounts have been modified to align with the penalty scale in the Sentencing Act 1991. Non-compliance with clause 439 may also attract a default penalty under clause 444, which requires an employer to pay as a default penalty of an amount equal to the difference between the premium that ought to have been payable had the employer given the Authority the estimate as required, and the premium in fact paid. This clause is intended to make the premium setting process accurate, fair and transparent by involving the employer in the process. The more accurate the information that the employer provides to the Authority, the more accurate the estimate of premium payable that the Authority can make. Clause 439 operates the same as section 18 of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 440 enables the Authority to estimate the amount of an employer's rateable remuneration. The clause helps to avoid delay in the premium calculation process to be undertaken by the Authority by enabling the Authority to estimate the employer's rateable remuneration. The Authority's estimate of the employer's rateable remuneration is then used by the Authority to calculate the amount of premium that will be payable by the employer for the forthcoming period. To ensure transparency and fairness, clause 440(2) requires the Authority to provide the employer with the Authority's estimate of the employer's rateable remuneration. This clause operates the same as section 24 of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 441 requires an employer to provide the Authority with a certified statement of its rateable remuneration, upon request by the Authority. This occurs after the premium period has concluded and is intended to capture the actual remuneration rather than simply an estimate. The certified statement of remuneration provided by the employer should generally be similar to the estimate of rateable remuneration provided by the employer or estimated by the 222

 


 

Authority under clause 440. The estimate of rateable remuneration provided under clause 440 is used by the Authority to estimate the amount of premium payable by the employer for the forthcoming financial year or premium period. If the certified statement of rateable remuneration is different from the estimated rateable remuneration, then the estimated amount of premium payable by the employer is incorrect and will need to be adjusted by the Authority. Non-compliance with clause 441 may also attract a default penalty under clause 444, which requires an employer to pay an amount equal to the difference between the premium that ought to have been payable had the employer given the Authority the certification as required, and the premium in fact paid. Clause 441 operates the same as section 23(1) of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 442 follows on from clause 441 above by imposing an obligation on an employer to provide their certified statement of rateable remuneration, as requested by the Authority under clause 441, within 28 days of receiving the notice. The timeframe is necessary to ensure that there is no delay in the calculation and collection of premium payable by employers. Given the importance of a certified statement in the calculation of premium and in order to ensure that the certified statement is provided in a timely manner, a failure to provide a certified statement within 28 days attracts a penalty. Penalty amounts have been modified to align with the penalty scale in the Sentencing Act 1991. If the employer provides a certified statement of remuneration which is incorrect, then the employer is treated as not having provided the required certified statement under this clause and may be liable to a penalty. The purpose of this clause is to ensure that the Authority has the most accurate information about the employer's rateable remuneration and that premium is calculated accurately. In the absence of the certified statement of rateable remuneration from the employer, the Authority can estimate the amount of rateable remuneration paid by the employer and issue a notice of adjusted premium to the employer. The ability of the Authority to estimate the employer's amount of rateable remuneration ensures that an employer's failure to provide a 223

 


 

certified statement of their rateable remuneration does not delay the Authority's calculation and collection of premium. The employer will then be required to pay this adjusted amount of premium. Clause 442 streamlines and operates the same as section 23(2), (3), (3A) and (4) of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 443 provides a process for dealing with a change in an employer's circumstances during the financial year or premium period after the employer has provided an estimate of their rateable remuneration or the Authority has estimated the employer's rateable remuneration under clause 440. If an employer becomes aware that the actual rateable remuneration that it will be paying its workers during the premium period is or is likely to be more than 20% greater than amount of rateable remuneration estimated by the employer or by the Authority, the employer is required to notify the Authority of the change in circumstances and to provide the Authority with an updated estimate of their rateable remuneration. If the actual rateable remuneration that an employer has or will be paying their workers as at any time before the last two months of a premium period is greater than the rateable remuneration estimated by the employer or the Authority, the employer is required to notify the Authority and to provide the Authority with an updated estimate of their rateable remuneration. The employer is required to notify the Authority within 28 days of becoming aware of the change in circumstances or within 28 days of the actual rateable remuneration exceeding the estimated rateable remuneration. The timeframe is necessary to ensure that the employer notifies the Authority promptly and to avoid a delay in the calculation and collection of premium payable by employers. A failure to notify the Authority of the change in circumstances within 28 days attracts a penalty. Penalty amounts have been modified to align with the penalty scale in the Sentencing Act 1991. Non-compliance with clause 443 may also attract a default penalty under clause 444, which requires an employer to pay the difference between the premium that ought to have been 224

 


 

payable had the employer given the Authority the revised estimate as required, and the premium in fact paid. The penalty for failure to comply with this clause encourages employers to keep the Authority informed of any change in circumstances which may impact the amount of premium the employer pays. Clause 443 operates the same as section 20 of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 444 imposes a default penalty on an employer which fails to comply with the requirement to give an estimate of rateable remuneration under clause 439, provide a certified statement of rateable remuneration under clause 441, provide a revised estimate of rateable remuneration under clause 443, or where the employer's estimate of rateable remuneration is more than 20 per cent lower than the employer's certified statement of rateable remuneration or as estimated by the Authority under clause 442(3). The default penalty that can be imposed under clause 444 is an incentive for employers to provide the Authority with accurate and timely disclosure of their rateable remuneration and any change in circumstances that may impact the amount of premium that they may be required to pay. Clause 444 streamlines and operates the same as section 25 of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 445 provides certainty about the nature and treatment of payments made by the Transport Accident Commission to workers employed under section 12(3) of the Transport Accident Act 1986 by deeming remuneration paid or payable to a worker in these circumstances as rateable remuneration as if the Transport Accident Commission was the worker's employer. This ensures that the amount of remuneration paid to such workers can be included when the Authority calculates what premium is payable by the Transport Accident Commission. By deeming the Transport Accident Commission to be the worker's employer, clause 445 provides certainty for workers with respect to the employer to which they should give any injury claim to and who will be required to pay their claim costs in the event of injury. 225

 


 

Clause 445 streamlines and operates the same as subsections 7(4C) and 7(4D) of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 446 Some amounts paid or payable by an employer to a superannuation, provident, retirement fund or scheme do not relate to a particular worker or that worker's period of service. Clause 446 provides that such payments are to be recorded by an employer and explains how they are to be treated for the purposes of premium calculation. For transparency and to ensure that the employer pays a fair amount of premium, the employer is required to record any such payments so that the Authority can determine if the payments are to be considered to be a superannuation benefit paid or payable in respect of a particular worker. The operation of clause 446 helps to avoid any potential for an employer to categorise remuneration paid to workers as superannuation benefits in order to reduce the amount of rateable remuneration it pays and so to reduce its premium liability. Clause 446 consolidates and operates the same as sections 3A and 3B of the Accident Compensation (WorkCover Insurance) Act 1993. Division 4--Premiums Clause 447 contains a flowchart which describes the process involved in calculating the premium that is payable by an employer under the Bill. Clause 13 provides that a flow chart does not form part of this Bill; and is not intended to have any legal status. The flowchart is intended to assist the reader to understand the steps involved in the determination of premium. Clause 448 provides that a Premiums Order may be made and sets out how it is to be made, what it may contain, and how and when it applies. Clause 448 also provides that the Authority is required to calculate an employer's amount of premium in accordance with the Premiums Order for the relevant premium period(s). The Premiums Order provides the detail associated with the calculation of premium payable by an employer, including industry classifications, formulas and definitions. Publication and reliance on the Premiums Order by the Authority helps 226

 


 

ensure consistency and transparency in the calculation of the amount of premium payable by employers. Clause 448 consolidates and operates the same as sections 15 and 16 of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 449 allows the Authority to give an employer a notice confirming the amount of premium it needs to pay for a specific premium period. The Authority is also able to include a notice of default penalty that is payable by the employer in the premium notice. The Authority requires the ability to issue a notice of premium and default penalty to require employers to pay premium as calculated in accordance with the premiums order. Clause 449 also limits the periods in relation to which the Authority may issue a premium notice to the current premium period, the premium period last before the current premium period and/or the previous 3 premium periods, except when the Authority reasonably believes that fraud has occurred in relation to premium. Clause 449 consolidates and operates the same as sections 17A and 21A of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 450 provides a formula that is intended to be used to apportion the premium payable by an employer who should have registered, but did not, for part of a premium period. If that employer at some point in the premium period registered and paid premium as required, the total premium payable by such an employer is calculated by reference to both the registered period and the part of the premium period for which the employer was not registered. However, the amount of default penalty payable by the employer as a consequence of non-registration would be based on the apportioned amount of premium payable for the unregistered period. Clause 450 operates the same as section 7(3C) of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 451 allows the Authority to give an employer a notice of adjusted premium if the employer does not give the Authority a certified statement of rateable remuneration or the Authority considers that the certified statement of rateable remuneration is not correct (under clause 442); or where employer's circumstances 227

 


 

change (under clause 443); or where the employer fails to provide accurate information about their rateable remuneration (under clause 444). Clause 451 also provides the Authority with a general power to adjust premium so that the amount of premium payable by the employer is calculated in accordance with the relevant Premiums Order. Clause 451 allows the Authority to give an employer a notice of default penalty with a notice of adjusted premium. Clause 451 is intended to help ensure that employers pay the correct amount of premium based on their specific circumstances and any subsequent change in circumstances during the premium period. Clause 451 operates the same as section 21 of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 452 provides the Authority with the power to impose a default penalty on an employer captured by clause 430(1) where that employer has failed to pay premium in full or in part, regardless of their registration status. The default penalty is equivalent to the amount of premium that the employer should have paid but did not following receipt of the notice of premium given to it by the Authority. Clause 452 must be read with clause 453. Clause 452 provides an incentive for employers to pay their premium when required. Clause 452 operates the same as section 7(6) of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 453 follows on from clause 452 and provides that a default penalty is payable on or before the date specified in the notice or, if no date is specified, within 28 days after the date of default penalty notice. The clause provides that a default penalty and a late payment penalty, within the meaning of clause 460, is payable even if the employer has sought review of its premium or any penalty, and regardless of whether there are any proceedings against the employer for an offence under this Division. In the interests of fairness, clause 453 provides the Authority with discretion to remit all or any part of the default penalty, if it considers the circumstances warrant it. This provision 228

 


 

encourages employers to pay their premium as assessed by the Authority by the required date. Clause 453 operates the same as section 7(6A), (6B) and (7) of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 454 provides the Authority with the power to impose a late payment penalty, within the meaning of clause 460, where an employer defaults on paying any of its premium. Premium default is defined in the clause as a failure by an employer to pay the whole or part of premium it is liable to pay. For any premium that remains outstanding at the end of the last day for payment, the employer will be required to pay interest calculated monthly using compound interest at the applicable interest rate under section 25 of the Tax Administration Act 1997. Clause 454 gives the Authority discretion to remit all or any part of a late payment penalty imposed under this clause. Clause 454 helps ensure that employers pay premium as required and provides a deterrent for employers from delaying the payment of their premium. Clause 454 operates the same as section 34(2), (3) and (4) of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 455 sets out the process for a default penalty to be imposed on an employer which has failed to provide full and true disclosure to the Authority. The calculation of premium requires employers to provide the Authority with accurate information about various matters, including the amount of remuneration they pay to their workers during a financial year, and to notify the Authority of any change in circumstances that may influence the amount of premium the employer is required to pay. If the Authority considers that an employer has provided incomplete or inaccurate information, the Authority can issue a notice adjusting the amount of premium. The notice will reveal the difference in the amount of premium that the employer in fact paid based on the information the employer provided to the Authority and the amount of premium that the employer should have paid had they provided full and accurate information about the amount of remuneration they paid to their workers. 229

 


 

The Authority can impose a default penalty equal to the difference between these two premium amounts. If the Authority, following a review of premium under clause 461 or 472, finds that the employer or someone acting on behalf of the employer took steps to prevent the Authority from calculating the correct amount of premium that the employer was required to pay, then the Authority can increase the amount of default penalty imposed by 20 per cent. This additional penalty is intended to deter an employer or a person acting on behalf of the employer from taking steps to prevent or hinder the Authority from calculating the amount of premium payable by the employer. The ability of the Authority to adjust premium and to impose default penalty under this clause helps provide a deterrent to employers who consider misleading the Authority about relevant matters, including the amount of remuneration they pay to their employees, or who consider interfering with a review of their premium by the Authority. Clause 455 operates the same as section 31B of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 456 provides that an employer can seek from the Authority a refund of premium for the existing premium period and for the previous four premium periods. An employer may not bring proceedings to obtain a refund of premium other than as provided for in clause 456. This restriction directs employers to commence any request for refund of premium by lodging a claim with the Authority in the first instance, rather than starting with litigation. It also ensures that the Authority is accountable for its calculation of premium and provides an avenue for employers to ensure that they are paying premium in accordance with the relevant Premium Order(s). Clause 456 consolidates and operates the same as sections 22A and 22B of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 457 is intended to deal with instances where an employer has actively and inappropriately worked to minimise the amount of premium payable by entering in to a premium avoidance scheme (as defined in clause 457). The Authority can make a 230

 


 

determination under clause 457 if it considers that an employer has paid less in premium than it would have had the employer not entered into a premium avoidance scheme. If an employer obtained a premium benefit (as defined in clause 457) from its entry into a premium avoidance scheme the Authority can impose a penalty of up to twice the difference between the amount of premium paid by the employer and the amount that the employer would have paid had it not entered into a premium avoidance scheme. The employer is required to pay the penalty imposed by the Authority within 28 days of receiving notice of the Authority's determination and penalty. This clause is intended to act as a deterrent to employers who may consider entering into a premium avoidance scheme. It does so by imposing a penalty of up to twice the premium benefit (as defined in clause 457) that the employer gained from entering the premium avoidance scheme. This provision also assists the Authority to ensure employers are accountable for their obligation to pay premium as calculated by the Authority in accordance with the Premiums Order. Clause 457 operates the same as section 26A of the Accident Compensation (WorkCover Insurance) Act 1993, together with clause 18 of the Premiums Order. Clause 458 provides that any review of a reviewable amount within the meaning of Division 5 of Part 10 can only be undertaken using the avenues provided for in Part 10. This is intended to ensure that matters under Part 10 are reviewed and determined consistently, starting with internal review and only after that proceeding to external review; and to ensure that reviews are cost effective, transparent and efficient for employers. Clause 458 operates the same as section 35 of the Accident Compensation (WorkCover Insurance) Act 1993. Division 5--Premium review Clause 459 contains a flowchart describes the process available to employers should they seek to review their premium. Clause 13 provides that a flow chart does not form part of this Bill; and is not intended to have any legal status. The flowchart is intended to assist the reader to understand the steps involved in the premium review process. 231

 


 

Clause 460 Default penalty is defined as an amount payable in relation to a notice of penalty given by the Authority to an employer under particular sections--where the employer has failed to provide accurate information about the employer's rateable remuneration to the Authority for the calculation of premium payable by the employer (clause 444); where the employer has failed to pay their premium by the due date (clause 452); where the employer has failed to provide full and true disclosure about their circumstances to allow the Authority to accurately calculate premium payable by the employer (clause 455); or where the employer has tried to reduce their premium liability by entering a premium avoidance scheme (clause 457). The term is defined to make clear that all default penalties in Part 10 are subject to review under Division 5. This is a new definition with no equivalent in the Accident Compensation (WorkCover Insurance) Act 1993. Estimated future claim cost is defined as the estimate of the future cost of claims of an employer, as determined under the relevant premiums order, as specified in a claims statement made available to the employer by the Authority. The term is defined because this is a particular aspect of premium calculation that is subject to specific review by the Authority (and potentially by VCAT and the Supreme Court). The definition operates the same as the equivalent definition in section 3 of the Accident Compensation (WorkCover Insurance) Act 1993. Late payment penalty is defined in relation to interest to be paid on an amount of unpaid premium. The term is used in section 454 and makes clear that interest is payable under that clause and subject to review under Division 5. This definition has no equivalent in the Accident Compensation (WorkCover Insurance) Act 1993. Premium is defined as an amount specified in a notice of premium or adjusted premium given to an employer by the Authority which is payable or paid by an employer as premium (that is, an amount calculated in accordance with the relevant premiums order and parable as consideration for the statutory contract of insurance). The term is defined to distinguish the amount paid or payable as premium from other payments the 232

 


 

employer might be required to pay, such as a default penalty or interest. This definition is not like the definition of premium in section 32 of the Accident Compensation (WorkCover Insurance) Act 1993. The components of what was defined as premium in that Act have been separated in the Bill into separate terms of premium, default penalty, late payment penalty and estimated future claim cost. Reviewable amount is defined by reference to the other defined terms. The term is defined to make clear those matters that an employer can seek to have reviewed under Division 5 of Part 10 of the Bill. The definition captures the now separated elements of the definition of premium in section 32 of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 461 allows an employer to seek review by the Authority of a reviewable amount. An employer is required to make payment of a reviewable amount in dispute as and when due. It is intended that review by the Authority will provide employers with an effective and low cost process for review of a reviewable amount (as defined in clause 460). It also will ensure an employer is less likely to use review as a tactic to delay payment. If an employer seeks to review the estimated future claims cost component of a reviewable amount, the employer is limited to the grounds that the estimate of future claims costs is erroneous because of a coding error or other data entry error. This limitation is in place to ensure that the actuarial basis of an employer's estimated future claims costs is not subject to challenge by employers. The restriction is intended to allow employers to challenge the estimate of future claims costs only where the data used in the estimation of future claim costs has been incorrectly recorded or entered by the Authority, for example when the sex or injury of a worker is wrongly recorded. This clause operates like section 33(1)(g) of the Accident Compensation (WorkCover Insurance) Act 1993. 233

 


 

On receipt of the employer's application for review of premium, the Authority is required to either conduct the review of the reviewable amount or decline to conduct a review (in accordance with clause 464). This provides transparency and certainty for employers about the outcome of its application. Clause 461 operates the same as sections 33 and 34 of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 462 requires an employer to make an application for review of a reviewable amount within 60 days after receiving of the notice which is the subject of the review application; or if the review application is in relation to the estimated future claim cost, 60 days from the date that the estimate specified in a claims statement was made available to the employer. This provision helps ensure that applications for review are made, and the Authority is notified, within the 60 day period. Clause 462 aims to reduce unnecessary delays in the payment and collection of premium by providing a timeframe for applications for review to be made. Clause 462 operates the same as section 36 of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 463 provides the Authority with the discretion to allow an application for review of premium to be made by an employer after the expiry of the 60 day timeframe in clause 462. The employer must, in their application for review, provide reasons why they were not able to make their application in time. This provision ensures a fairer review process by allowing for applications to be lodged out of time if warranted by the circumstances. Clause 463 operates the same as section 36A of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 464 allows the Authority to decline an application for review made under Division 5 of Part 10 where it has previously considered the matters raised in the application and does not consider that a further review is warranted because the employer has not provided any new or relevant information in their most recent application. The Authority can also decline an application for review if it considers that the application is misconceived or lacks substance. 234

 


 

The discretion provided by clause 464 enables the Authority to avoid unnecessarily spending resources dealing with reviews where it is clear on their face that they are likely to fail. Clause 464 operates the same as section 36B of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 465 allows an employer to withdraw their application for review at any time prior to the Authority making a determination in relation to the employer's application. The provision allows an employer to change their mind after they have made their application for review and means the Authority will not unnecessarily invest further resources in considering the application. Clause 465 operates the same as section 36C of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 466 requires the Authority to conduct and complete a review within 90 days after receiving an employer's application. The 90 day timeframe is generally sufficient for the Authority to obtain, collate and consider all relevant information with respect to an employer's application. Where the specified 90 days is not enough due to the complexity of the matter being reviewed or due to difficulty in obtaining all relevant information or documentation, clause 466 enables this period to be extended by agreement between the Authority and employer or as advised in writing to the employer by the Authority. Clause 466 operates the same as section 36D of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 467 allows the Authority to the request of relevant information from an employer and provides a process for such a request. If the employer fails to provide the requested information within the specified time, the Authority may suspend the review. Clause 467 is an important information gathering tool for the Authority. The ability of the Authority to request information helps ensure that the Authority is able to conduct its review and make a decision based on all relevant information. For this to occur, the employer needs to participate in the review process by complying with the Authority's request for further information. 235

 


 

If the employer fails to comply with the Authority's request for further information, the Authority can suspend the review. Where the review is suspended, the Authority is required to notify the employer in writing of the suspension, the reason for the suspension, the length of the suspension, details of the information requested and that the suspension remains in place until the period specified in the suspension notice expires or the employer provides the requested information. If the employer fails to provide the requested information before the end of the period outlined in the suspension notice issued to the employer by the Authority, the employer's application for review is deemed to be withdrawn. The deemed withdrawal of the employer's application does not prevent the employer making another application later. Clause 467 allows the Authority to avoid unnecessarily spending resources considering an application for review based on insufficient or incomplete information. The provision also avoids applications for review continuing indefinitely where an employer is unwilling or unable to provide information that is relevant to the review. Clause 467 operates the same as section 36E of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 468 requires the Authority to make a determination following its review of an application, provide the employer with notice of the determination, and make any necessary adjustment to an amount or figure resulting from the determination. Where the outcome of the Authority's review is that the premium paid by the employer is less than the amount of premium it should have paid, then the employer is required pay that difference to the Authority for the relevant premium period(s). If the reverse outcome occurs and the employer has overpaid premium, then the Authority is required to reimburse the employer for overpaid premium for the relevant premium periods. The Authority is only entitled to recover amounts of underpaid premium relating to the premium period current at the date of the review application plus one or more of the four previous periods, unless it reasonably believes that there was fraud involved. The employer is only entitled to recover over-paid 236

 


 

premium in relation to the date of the review application plus one or more of the four previous periods. The review process and resultant determination are designed to ensure fairness and transparency in both process and outcome. Clause 468 operates the same as section 36F of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 469 provides a process and timeframes for payments to be made as a result of a review. Any payments required to be made following the Authority's internal review are to be made within 28 days of the notice of the Authority's determination. The provision is necessary to ensure that both the employer and the Authority have a clear obligation regarding the making of payments following the Authority's internal review of the employer's application under clause 461. Clause 469 operates the same as section 36G of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 470 provides that where the Authority is required to pay the employer an amount following the review of the employer's premium, the Authority is required to pay interest on that amount. This ensures that the employer receives the interest that it could have received had the funds not been paid to the Authority. Clause 470 aims to return the employer to the position that it would have been in had it paid the correct amount of premium. However, the Authority is not required to pay interest where the reason the employer had overpaid its premium was because information the employer provided to the Authority was inaccurate or incomplete, or because the information was revised by the employer after the notice of premium had been given by the Authority. Clause 470 operates the same as section 36H of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 471 provides that if the Authority doesn't make a decision on a review, or suspend the review, within 90 days (or such extended period as agreed) of having received the employer's application for a review under clause 461, the Authority is deemed to have made a decision confirming the amount of premium payable by the employer. 237

 


 

The deemed determination of the Authority brings closure to the Authority's internal review process and provides the employer with a decision, albeit a deemed decision, which it can choose to accept or seek to review or appeal. The deemed decision avoids delaying an employer's objection through the review and appeal process unnecessarily. If the employer is dissatisfied with the confirmed amount of premium, then they can request that the Authority to refer their application to VCAT for review or the Supreme Court for appeal. Clause 471 operates the same as section 36I of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 472 provides the Authority with discretion to review any premium amount calculated in relation to one or more premium periods. The Authority can rely on this discretion whenever it receives new information about an employer which may affect the amount of premium payable by that employer for one or more premium periods. This includes circumstances where the employer provides its actual remuneration in a statement of certified remuneration after the premium period, allowing the Authority to review and adjust the premium payable for that past period based on the actual remuneration rather than on an estimate. This provision helps ensure that employers pay the correct amount of premium. Clause 472 operates the same as section 36L of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 473 allows the Authority to adjust the amount of premium payable by an employer following a review of premium under clause 472 if the Authority considers that the amount of premium payable by an employer is incorrect. This is intended to ensure that employers pay an amount of premium that is appropriate for that particular employer's circumstances and reflects that there may be occasions where premium is, for whatever reason, incorrectly calculated in the first instance. It also permits the Authority to adjust premium where the premium had been correctly calculated on the basis of an estimate, but where later information reveals that the estimate used was not correct (for example when a statement of certified remuneration is provided that differs from the estimate used). 238

 


 

Clause 473 consolidates and operates the same as sections 29 and 36M of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 474 sets out the extent of the Authority's power to recover an amount of increased premium following an adjustment under 473. The clause is consistent with the timeframes outlined in clauses 449 and 468. All these clauses limit the Authority's ability to issues notices in relation to, and to recover, premium to the premium period for which the notice in question relates and up to four previous premium periods prior to that period. However, the Authority can recover an amount of increased premium for any premium period where the Authority reasonably believes that there has been fraud in relation to the calculation or payment of premium. Further, if a determination under clause 457 has been made (regarding premium avoidance), the Authority may recover premium in relation to any premium period. It is important for the Authority to have the ability to look back beyond the immediate premium period and make adjustments to earlier premiums to ensure that the employer has paid the correct amount of premium over time. To ensure fairness, there must be a limit to how far back the Authority can look for the purposes of recovering premium. Five years is considered a reasonable period. There would be considerable compliance costs for employers in having to retain records indefinitely. Clause 438 requires employers to preserve their books and accounts for five years after the completion of transactions to which those books and accounts relate. Clause 474 operates the same as section 31(1) of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 475 provides for recovery of premium following a determination made by the Authority under clause 457 where an employer has been involved in a premium avoidance scheme. It is important for the Authority to have the ability to look back beyond the immediate premium period and make adjustments to earlier premiums to ensure that the employer has paid the correct amount of premium over time. To deter employers from participating in a premium avoidance scheme, clause 475 provides for the recovery of premium related to the current 239

 


 

premium period and any other premium period prior to the current premium period. Clause 475 operates the same as section 31(2) of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 476 enables the Authority to refund or offset the excess premium paid (including interest) by an employer following a review; this provides the Authority flexibility in how to return excess premium paid to an employer. Where an employer is entitled to a refund for one premium period, but owes the Authority money for another premium period, it is appropriate to permit the Authority to offset that amount, rather than refund it to the employer and then potentially have to proceed against that employer to recover outstanding premium. Clause 476 operates the same as section 31A of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 477 provides for the Authority to have a wide discretion to exercise its review and adjustment powers under Part 10 to help ensure that employers pay an amount of premium that is appropriate for their own individual circumstances. The Authority's review and adjustment powers are not limited because a notice of premium has been given and/or an amount of premium has been paid. Nor are those powers limited by the fact that the Authority has previously conducted a review. Nor are the Authority's powers of review and adjustment limited by matters that might otherwise stop the Authority form conducting a review of adjusting premium. Clause 477 operates the same as section 30 of the Accident Compensation (WorkCover Insurance) Act 1993. Division 6--Review by VCAT and appeal to Supreme Court The Bill introduces a right for an employer to seek review of its premium in VCAT if the employer is dissatisfied after an internal review by the Authority. The right to seek review by the tribunal is based on the same criteria as the parallel right to seek review in the Supreme Court. The Tribunal is considered to provide a more accessible and cost-effective mechanism of review than the Court, but an employer is able to choose where to seek review. A review of premium by VCAT may itself be appealed to the Supreme Court, by an employer or by the Authority. 240

 


 

The provisions in this Division relating to VCAT have no equivalent in the Accident Compensation (WorkCover Insurance) Act 1993, as there is no right to seek review by VCAT in that Act. Clause 478 allows an employer which is dissatisfied with a determination resulting from an internal review of the employer's premium, or with a deemed determination under s 471, or with a decision not to conduct a review under s 464, to request that the Authority refer the matter to the VCAT for review or cause the matter to be set down in the Supreme Court. The employer is required to make their request to the Authority within 60 days of receiving the Authority's determination. The ability to seek review in VCAT provides an independent, accessible and cost-effective mechanism for employers disputing their premium. However, the employer may if it wishes seek to have the matter heard in the Supreme Court rather than in VCAT. This clause too ensures that decisions of the Authority are transparent and accountable through external review processes. This clause also provides time limits within which an employer's request for the matter to go on external review must be made. If a request is made, the Authority must refer the matter or cause it to be set down within 60 days after the request is made. This clause is similar to section 36J in the Accident Compensation (WorkCover Insurance) Act 1993, which provides for appeals to the Supreme Court, but it adds to that clause the ability for the employer to choose VCAT as an avenue of review and makes the process one by which the Authority refers the matter or causes it to be set down. Clause 479 enables the Authority to ask an employer to provide further information within 30 days of the employer requesting that the Authority refer their matter to VCAT for review or the Supreme Court for appeal. This request for further and better particulars helps ensure that the Authority has all information that is relevant to the employer's request for review or appeal. It also helps the Authority provide all required information to VCAT or the Supreme Court for their consideration. 241

 


 

By providing the information requested by the Authority, and required for filing with VCAT or the Supreme Court, the employer may be providing information that the Authority has not received before. If this is the case, then the Authority may consider this additional information and revise its initial determination. This may then lead to the employer to withdraw their request for the Authority to refer their objection to VCAT for review to the Supreme Court for appeal. Until the employer provides the relevant information requested by the Authority, the Authority is not permitted to refer the employer's review to VCAT or appeal to the Supreme Court. Clause 479 helps ensure that the Authority does not unnecessarily expend resources preparing for and conducting before VCAT or the Supreme Court a review or appeal until the employer has provided all relevant information. Clause 479 aims to prevent employers making a request for their matter to be referred to VCAT or the Supreme Court and then refusing or neglecting to provide requested further information to the Authority. This is a new clause, which has no equivalent in the Accident Compensation (WorkCover Insurance) Act 1993. Clause 480 requires an employer which has made a request to the Authority that its matter be referred to the VCAT for review or the Supreme Court for appeal to pay the relevant filing fee directly to the VCAT or the Supreme Court. Until payment of the filing fee has been made, the Authority is not required to refer the employer's matter to VCAT or the Supreme Court. Clause 480 is subject to clause 479, so that that the Authority is only required to refer a matter to VCAT or the Supreme Court once the employer has complied with a request from the Authority for further information and has paid the relevant filing fee to VCAT or the Supreme Court. Clause 480 helps ensure that the Authority does not unnecessarily expend resources in preparing for a review or appeal until it is clear that the employer intends to proceed with it. Clause 480 aims to prevent employers making a request for their matter to be referred to VCAT or the Supreme Court and then refusing or neglecting to provide requested further information to the Authority or failing to pay the filing fee. 242

 


 

This is a new clause, which has no equivalent in the Accident Compensation (WorkCover Insurance) Act 1993. Clause 481 requires that, where proceedings for review are commenced, the Authority must file with VCAT or the Supreme Court (as the case may be) two copies of all documents that are relevant to the employer's application for review or appeal. These documents include those related to the Authority's determination, the employer's objection and the Authority's disallowance of the employer's objection. Clause 481 helps ensure that VCAT or the Supreme Court, as the case may be, has all relevant documents when it considers the employer's review or appeal. This ensures that the decision making process continues to be transparent and takes into account the relevant information and documentation that was provided by the employer to the Authority and considered by the Authority as part of the internal review process. This is a new clause, which has no equivalent in the Accident Compensation (WorkCover Insurance) Act 1993. Clause 482 provides that on review to VCAT or appeal to the Supreme Court, the employer is limited to the grounds raised in their application to the Authority for internal review. This helps ensure that VCAT review or Supreme Court appeal is based on the grounds of review considered by the Authority rather than on new grounds. This limitation also encourages employers to be comprehensive in setting out their grounds in their application to the Authority for internal review. The Authority's case on a review by VCAT or appeal to the Supreme Court is also limited to the grounds on which it declined to conduct a review (under clause 464) or made a decision (under clause 461), as the case may be. This ensures that the Court or Tribunal will resolve matters in dispute following the internal review, rather consider new grounds raised by the Authority. This encourages the Authority to be comprehensive in setting out the grounds for refusing an employer's objection on an internal review. However, new grounds of review can be raised by either the employer or the Authority as the case requires or if VCAT or the Supreme Court makes an order to that effect. 243

 


 

This is a new clause, which has no equivalent in the Accident Compensation (WorkCover Insurance) Act 1993. Clause 483 provides that the employer has the onus or responsibility to prove its case to VCAT or the Supreme Court. The employer, as the applicant in the review by VCAT or appeal to the Supreme Court, is responsible for making and proving its case. The employer must show to VCAT's or the Supreme Court's satisfaction what the correct premium (or other reviewable amount) is. The onus is not on the Authority to prove that its determination was correct. This is a new clause, which has no equivalent in the Accident Compensation (WorkCover Insurance) Act 1993. Clause 484 provides that VCAT must review the determination in issue. VCAT can confirm or adjust the reviewable amount or vary the determination made by the Authority. VCAT would do so by determining what premium is payable by the employer pursuant to the relevant premiums order. If the employer fails to appear before VCAT for the review, VCAT is required to confirm the reviewable amount or determination. However, if an employer provides an explanation of why it failed to appeal that constitutes "good cause", VCAT may re-open and review the matter. Clause 484 provides transparency in the outcomes that can result from VCAT's hearing of the employer's appeal and makes clear that an employer's failure to appear at the hearing without good excuse will lead to VCAT confirming the Authority's determination. This is a new clause, which has no equivalent in the Accident Compensation (WorkCover Insurance) Act 1993. Clause 485 provides that on an appeal to the Supreme Court against a determination of the Authority under clause 478, the appeal is a hearing de novo. This means that the employer may introduce evidence that was not before the Authority; although it may not rely on new grounds of review, as a result of clause 482. It also means that the Supreme Court may determine the correct premium by applying the relevant premiums order to the facts as it finds them to be. 244

 


 

This clause also sets out what orders the Court may make on appeal--it can confirm or adjust the premium, vary the determination made by the Authority following its review of the employer's application, or make any other order it thinks fit. This differs from an appeal to the Supreme Court from a review conducted by VCAT. Such an appeal may only be on a question of law and the Supreme Court cannot examine the merits of the VCAT decision or of the underlying determination by the Authority. An appeal to the Supreme Court from VCAT is made in accordance with the Supreme Court Act 1986. Clause 485 operates the same as section 36K of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 486 requires the Authority to take steps to give effect to a decision or order of the VCAT or the Supreme Court within 60 days of the decision or order. This provision helps ensure that the neither the employer's nor the Authority's position is disadvantaged by any undue delay. This is a new clause, which has no equivalent in the Accident Compensation (WorkCover Insurance) Act 1993. Clause 487 provides that a decision or order of the VCAT or the Supreme Court is to be taken as final if neither the employer nor the Authority appeals to a court within 30 days of the VCAT or the Supreme Court's decision under clause 486. Clause 486 is intended to ensure finality to disputes by providing a time limit within which the matter may be pursued further. Clause 486 prevents a matter continuing indefinitely and prevents an employer seeking to abuse their right of review or appeal by delay in exercising that right. This is a new clause, which has no equivalent in the Accident Compensation (WorkCover Insurance) Act 1993. Division 7--Recovery of premium or penalty Clause 488 allows the Authority to sue for any unpaid premium or penalty imposed under the Bill by commencing proceedings in an appropriate court. This clause provides for identification of certain dates relevant to time limitations imposed by the Limitation of Actions Act 1958. If the Authority does not commence recovery of unpaid premium or penalty imposed 245

 


 

under the Bill within the timeframes contained in the Limitations of Actions Act 1958, then the Authority loses its ability to recover the unpaid premium and penalty. Clause 488 operates the same as section 68 of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 489 provides that a certificate purporting to be issued by the Authority in relation to specified matters may be used as evidence in proceedings commenced for the recovery of unpaid premium or penalty. The certificate may outline certain relevant information about an employer, including that an amount specified was payable as premium by the employer. Clause 489 assists the Authority in providing evidence for the debt that it is seeking to recover in proceedings under clause 488. Clause 489 operates the same as section 71 of the Accident Compensation (WorkCover Insurance) Act 1993. Division 8--Reviews by Minister Clause 490 Subclause 490(1) requires the Minister to appoint an independent expert review body to review any matter in relation to the setting of premium under Part 10 by 1 July 2017 and then at least once every 3 years. This provision helps preserve the fairness and integrity of the premium setting system employed under Part 10 by ensuring that it is independently reviewed regularly. It also helps build and maintain the confidence that industry participants have in the premium setting process and thereby makes them more willing to contribute to the cost of the scheme by paying premium as assessed by the Authority in accordance with the relevant Premiums Order(s). Subclause 490(2) requires that the Minister cause a review to be undertaken of the operation of Division 6 by 1 July 2017. That Division relates to the new VCAT review process. The reason for such a review is to ensure that the process is operating as intended and allow for any necessary adjustments. Clause 490(1) operates the same as section 35(1) of the Accident Compensation (WorkCover Insurance) Act 1993. 246

 


 

PART 11--THE VICTORIAN WORKCOVER AUTHORITY Division 1--Constitution Part 11 of the Bill provides for the continuation and governance of the Victorian WorkCover Authority. It sets out the constitution of the VWA Board, the WorkCover Advisory Committee and the WorkCover Authority Fund. These matters are covered in Part II of the Accident Compensation Act 1985, which will be repealed by the Bill. Clause 491 Clause 491(1) continues in existence the Victorian WorkCover Authority which is established under section 18(1) of the Accident Compensation Act 1985. Subclause (2) re-enacts section 18(2) of the Accident Compensation Act 1985 and confirms its legal status and capacity as a body corporate. Clause 492 sets out the objectives of the Authority, which relate to the undertaking of a compensation scheme. The objectives of the Authority in clause 492 are framed around the undertaking of a compensation scheme. The objectives focus on managing the accident compensation scheme well and in a financially viable manner; ensuring injured workers receive appropriate compensation in a timely manner; and that the Authority is structured to best perform its functions and exercise its powers in relation to each of the Acts it administers. The functions of the Authority set out in clause 493 are linked to the objectives of the Authority. This clause re-enacts section 19 of the Accident Compensation Act 1985 with some modifications. The objectives of the Authority in section 19(c) to (e) of the Accident Compensation Act 1985, which relate to the achievement of healthy and safe workplaces have been reframed as functions of the Authority in clause 493(1)(c) to (e). The changes gives effect to the Government Response to recommendation 6 of the Essential Services Commission's Efficiency Review of the Transport Accident Commission and Victorian WorkCover Authority (January 2013). Clause 493 sets out the functions of the Authority, which include actions it must take to meet its objectives under the Bill, including in relation to the administration of the scheme and how it deals with injured workers; and reducing the number and severity of injured workers and their reliance on the scheme through 247

 


 

education and promotion of healthy and safe workplace practises. The list of functions is not exhaustive as it includes functions specified under the Bill, the Accident Compensation Act 1985, the regulations or any other Act. Clause 493(2) sets out overarching requirements to which the Authority must have regard in the performance of its functions, including to promote prevention of injury and develop healthy and safe workplaces; to ensure fair outcomes for injured workers; to ensure scheme viability; and to advise the Minister on relevant matters. The functions of the Authority are intended to operate the same as those in section 20 of the Accident Compensation Act 1985, but the sequence has been altered to reflect a more logical order. As noted in relation to clause 492, the objectives of the Authority in section 19(c) to (e) of the Accident Compensation Act 1985 have been reframed as functions of the Authority, to better reflect their content. A reference to WorkCover insurance policies in the Accident Compensation Act 1985 has not been included in this clause, as these will no longer be required under the new registration system in Part 10, Division 2 of the Bill. Clause 494 sets out the powers of the Authority, which includes a power to do all things necessary or convenient to be done for or in connection with the performance of its functions and to enable it to achieve its objectives. Subclauses 494(2) and (3) provide context for the exercise of the Authority's powers. Clause 494(4) provides express powers for the Authority to make certain agreements, arrangements and contracts which are intended to provide clarity around processes, compensation and other arrangements. This includes with liable employers and insurers; and corresponding Authorities (as defined in clause 3). The ability to enter into agreements with corresponding Authorities is important to ensure the smooth operation of parallel and sometimes overlapping laws. This clause re-enacts sections 20A and 20B of the Accident Compensation Act 1985. 248

 


 

Clause 495 confirms that the Authority is subject to the general direction and control of the Minister, and any specific direction of the Minister. The clause re-enacts section 20C of the Accident Compensation Act 1985 with a minor change. Clause 495(2) is an additional provision in the Bill, which is intended to provide greater transparency by allowing the Authority to publish a direction given by the Minister in the Government Gazette. Clause 496 provides legislative confirmation that the Authority is able to issue guidelines, forms and advisory practice notes in relation to the accident compensation scheme. These are intended to provide workers, employers and self-insurers with guidance and assistance on how to comply with their obligations under Victorian workers compensation legislation. The provision re-enacts section 20D of the Accident Compensation Act 1985 but, in addition to advisory practice notes, further confirms that the Authority may also make or issue guidelines and forms, which it already does in practice. Clause 497 enables the Authority to give advice to a person who has an obligation under Victorian workers compensation legislation about how to comply with that obligation. This supplements the more general advice which is provided for in clause 496 and is intended to ensure that persons with an obligation are clear about what it is and how they can meet it. Subclause (2) makes clear that the giving of such advice does not alter the rights, expectations, duties or obligations or defences available to a person; which remain as those specified in the legislation. This ensures transparency and consistency in the application of legislation. Subclause (3) makes clear that this power can be exercised by an authorised person, which includes a Return to Work inspector. This reflects that, in practice, an inspector is most likely to be asked about how to comply with workers compensation legislation and is well placed to provide this advice. This clause re-enacts section 20E of the Accident Compensation Act 1985. 249

 


 

Clause 498 provides that there must be a Chief Executive Officer of the Authority appointed by the Governor-in-Council. Subclause (2) provides that the Chief Executive Officer is a Director. Subclauses (3) to (6) confirm that the Chief Executive Officer holds office for a term not exceeding 5 years (subject to other requirements of this Part), is eligible for re-appointment, is appointed subject to the terms and conditions specified in the instrument of appointment, and is to manage and control the Authority's affairs in accordance with the policies of the Board. This clause re-enacts section 25 of the Accident Compensation Act 1985, with modifications that reflect current governance practice and terminology but do not affect the operation of the section. Clause 499 Clause 499(1) requires the Authority to appoint the officers and employees it needs to perform its functions, exercise its powers and achieve its objectives; and also allows the Authority to employ other persons (such as consultants) for that purpose. Subclause (2) ensures an officer or employee who is an officer within the meaning of the Superannuation Act 1988 at the time of their appointment, will have the same status under that Act. This entrenches any entitlements relating to defined benefits that may have been in place prior to 1988. Subclause (3) provides an immunity from suit for any employee of the Authority where the employee acted in good faith for the purpose of carrying out a power or function of the Authority under any Act. Subclause (4) provides that any liability that would without subclause (3) attach to the employee, instead attaches to the Authority. This is an additional provision which has been inserted to ensure that the statutory immunity for employees is in accordance with government policy on immunities and with the general position of vicarious liability, in that employees are protected from litigation relating to actions (including omissions) occurring in the proper course of their employment, but a person with a legitimate claim arising from an employee's actions is able to obtain redress. This clause re-enacts section 22 of the Accident Compensation Act 1985, however, the equivalent to section 22(4), which provides specific entitlements for former public service employees who cease work with the Authority, has been omitted. This provision no longer has any practical effect, 250

 


 

given the overarching provisions of the Public Administration Act 2004. Clause 500 allows the Authority to, by instrument delegate any of its functions or powers, including the power of delegation. The ability to delegate the power of delegation is important to ensure that authorised agents, who are not employees of the Authority but exercise some of its functions and powers, are able to operate effectively in managing claims. The clause also expressly allows authorisations to be given by a person to whom a power or function has been delegated, with the approval of the Authority. Authorisations are expressly provided for in the legislation, as the default legal position on who is responsible for anything done with authorisation is displaced, so that the Authority bears responsibility. The clause re-enacts section 21 of the Accident Compensation Act 1985 and is to be read in conjunction with relevant provisions in the Interpretation of Legislation Act 1985. Clause 501 allows the Authority to appoint authorised agents by instrument specifying terms and conditions of appointment. Authorised agents are, in practice, appointed to manage employers' insurance policies and injured workers' compensation claims. These organisations perform most of the functions associated with premium and claims management. They also provide advice to help injured workers return to work. The Authority is empowered to terminate the appointment of an authorised agent who breaches their appointment terms and conditions; and provides the Authority with further recourse against an authorised agent in such circumstances. The Authority may also audit and require information from an authorised agent. The accountability mechanisms reflect the important role that authorised agents perform in relation to employers and injured workers and the necessity for that role to be performed properly. This provision re-enacts section 23 of the Accident Compensation Act 1985. 251

 


 

Division 2--Board of Management Clause 502 continues in existence the Board of Management of the Victorian WorkCover Authority, established under section 24 of the Accident Compensation Act 1985. The Board is empowered to exercise all the powers of the Authority; is required to direct the carrying out of the objectives and functions of the Authority; and must ensure the Authority is managed in an efficient and economic manner. This clause re-enacts section 24(1) of the Accident Compensation Act 1985, except that it continues the Board as it is already established under that Act. Clause 503 sets out how the Board must be constituted. It provides that the Board is to consist of not more than 8 Directors appointed by the Governor in Council on the nomination of the Minister. This clause re-enacts section 24(2) of the Accident Compensation Act 1985, but removes the distinction between the appointment of a full-time Director and Chief Executive Officer and part-time Directors. The specific requirement for the Board to include a Director who is to be the Chief Executive Officer is unnecessary because clause 498(2) already requires the Chief Executive Officer to be a Director. Clause 504 provides the requirements for the execution of documents by the Authority and confirms that a person can assume that a document has been duly executed by the Authority if it has been signed in accordance with subclause (1). This is intended to provide certainty in contractual arrangements and is consistent with the requirements for the execution of documents in section 127 of the Corporations Act 2001. Clause 504 re-enacts sections 18(3) and 18(4) of the Accident Compensation Act 1985. Clause 505 ensures that signatures on documents which appear to be signed in accordance with section 504(1) are taken as evidence that they have been duly signed by the Authority, which avoids the need for a party to prove that a document has been signed by the Authority in proceedings. This clause re-enacts section 18(5) of the Accident Compensation Act 1985. 252

 


 

Clause 506 specifies the general terms and conditions for Directors who are appointed by the Governor in Council; and is to be read alongside any further terms and conditions in the instrument of appointment. This clause re-enacts subsections (2), (3) and (4) of section 26 of the Accident Compensation Act 1985, but the reference to "part-time" directors has been replaced with a general reference to directors. This creates alignment with the Transport Accident Act 1986 provisions. It will not affect the status of directors in office at the date the Bill commences. Clause 507 sets out the requirements for the appointment of an acting Director by the Governor in Council; and the powers and entitlements an acting Director has when appointed under this provision. The ability to appoint acting Directors ensures that the Board and the Authority are able to function properly if a Director is absent from duty or unable to perform their duties for any reason. The clause re-enacts section 30 of the Accident Compensation Act 1985. Clause 508 provides the circumstances when a Director will be deemed to cease holding office; sets out the process for resignation from office; and enables the Governor in Council to remove a Director from office in specified circumstances, including for absences or where considered unfit to hold office. These provisions ensure that the Board has Directors who allow it to fulfil its duties and functions. This clause re-enacts section 29 of the Accident Compensation Act 1985. Clause 509 provides for the appointment of the Chairperson by the Governor in Council and makes provision for the appointment of an acting Chairperson. This clause re-enacts section 27 of the Accident Compensation Act 1985. Clause 509(1) makes clear that only a Director other than the Chief Executive Officer can be appointed as the Chairperson. The change has been made in the Bill to reflect good practice in corporate governance. 253

 


 

Clause 510 governs the requirements relating to meetings and voting by the Board; and the validity of decisions made by it. Among those provisions, subclause (4) confirms that a majority of Directors in office at the time constitute a quorum at a Board meeting. The clause re-enacts section 28 of the Accident Compensation Act 1985. Clause 511 sets out the requirement for Directors to make a declaration to the Board if they have a pecuniary interest in a matter being considered or about to be considered by the Board. The clause also requires a record of the determination to be made and specifies other consequences, for instance, by prohibiting the presence of the Director at any deliberation of the Board with respect to the matter. The clause seeks to ensure the Board is transparent and accountable and that the functions of Directors are not affected by personal financial interests. The clause re-enacts section 31 of the Accident Compensation Act 1985. Division 3--WorkCover Advisory Committee Clause 512 continues in existence the WorkCover Advisory Committee established under section 31A of the Accident Compensation Act 1985. The role of the WorkCover Advisory Committee is to advise the Board on prevention, compensation, rehabilitation and return- to-work issues. The Committee makes inquiries and then reports to the Board on all elements of the WorkSafe scheme. This is reflected in subclauses (2) and (3), which state the purpose and functions of the Committee. These provisions replicate the substance of section 31A(1) and (3) of the Accident Compensation Act 1985. Subclause (4) also replicates section 31A(4) of the Accident Compensation Act 1985, which confirms that the Board may regulate the procedures of the WorkCover Advisory Committee. Members are appointed by the Minister and include persons from a range of stakeholder groups. This includes persons with relevant experience or knowledge in relation to the accident compensation scheme, and persons who are nominated by Victorian employer and employee groups, who have experience in accident compensation. 254

 


 

Clause 512 re-enacts section 31A of the Accident Compensation Act 1985, except that it continues the Committee as it is already established. Division 4--Financial Matters Clause 513 continues in existence the WorkCover Authority Fund, established under section 32 of the Accident Compensation Act 1985. The clause provides for payments into and out of the fund in relation to a range of things connected with the scheme, including the payment into the fund for amounts recovered as penalties for offences against Acts administered by WorkSafe Victoria, and for payments to be made out of the fund for payments of compensation under the Bill. The clause re-enacts section 32 of the Accident Compensation Act 1985, except that it continues the Fund as it is already established under that Act. While the provision has been streamlined in the Bill, the changes are not intended to alter the powers of the Authority in relation to the Fund. Clause 514 allows the Authority to obtain financial accommodation under the Borrowing and Investment Powers Act 1987. This clause re-enacts section 33 of the Accident Compensation Act 1985. Clauses 515 and 516 allow the Treasurer to make determinations for the Authority to repay capital and/or pay dividends to the State. These provisions are the same as sections 33A and 33B of the Accident Compensation Act 1985 which were introduced in March 2011. The sections were intended to implement a government decision to apply the standard government business enterprise policy to the Authority, and so to bring the Authority into line with most other Government Business enterprises, including the Transport Accident Commission. Clause 515 requires that when making a repayment of capital determination the Treasurer must have regard to the advice that the Authority has given the Treasurer in relation to the Authority's affairs. The clause re-enacts section 33A of the Accident Compensation Act 1985. 255

 


 

Clause 516 requires that when determining the dividend policy the Treasurer must have regard to the solvency margin determined to maintain the long term financial viability of the accident compensation scheme. This re-enacts section 33B of the Accident Compensation Act 1985. Clause 517 requires the Authority to submit an annual operating budget to the Minister each financial year, in accordance with the date and matters required by the Minister. The clause re-enacts section 34 of the Accident Compensation Act 1985. Clause 518 sets out the requirements for the submission and availability of the operating and financial report for the Authority. The clause re-enacts section 34A of the Accident Compensation Act 1985. PART 12--OTHER BODIES Part 12 provides for the establishment and governance of the Accident Compensation Conciliation Service and Medical Panels. The provisions re-enact the equivalent provisions in Part III of the Accident Compensation Act 1985, sections 52A-52LA, 63, 63A, 64, 65(1), 64, 66 and 65(10), which will be repealed by the Bill. Division 1--Accident Compensation Conciliation Service Division 1 sets out provisions relating to the establishment and governance of the Accident Compensation Conciliation Service (the Conciliation Service). This Division continues the operation of the Conciliation Service, provides for the appointment and engagement of Conciliation Officers and other officers to the Conciliation Service, and sets out the functions and powers of the Conciliation Service, including the particular functions of the Senior Conciliation Officer. The Conciliation Service is an independent service that uses the principles of Alternative Dispute Resolution to resolve disputes relating to statutory benefits under the Accident Compensation Act 1985. The conciliation process involves all parties, including workers, employers and WorkCover agents or self-insurers, in an informal, non-adversarial process which aims to achieve an agreement that is fair. The conduct of conciliations, including the responsibilities of Conciliation Officers and the requirements on parties 256

 


 

involved in the process are included in Division 2 of Part 6 of the Bill (Disputes and conciliation). In most cases, the dispute will be referred to the Conciliation Service by the worker under clause 283. Conciliation is a key part of the Victorian workers compensation scheme and, as indicated by clause 273(1), in most disputes, is a compulsory step before proceedings can be taken in court. Division 1 re-enacts Division 1A of Part III in the Accident Compensation Act 1985, with the exception of the savings and transitional provision in section 52M, which is not required. That the Bill replaces references to "the Service", with a reference to the "Conciliation Service", which is defined in clause 3. The inclusion of a defined term Conciliation Service is intended to provide greater clarity. Clause 519 continues in existence the Accident Compensation Conciliation Service (ACCS) established under section 52A of the Accident Compensation Act 1985 and confirms its status as a body corporate. The provision re-enacts section 52A of the Accident Compensation Act 1985, except that it continues the Conciliation Service as it is already established under that Act. Clause 520 sets out that the constitution of the Conciliation Service, as a body corporate, consists of one member, being the Senior Conciliation Officer. The Senior Conciliation Officer is supported by Conciliation Officers and staff appointed in accordance with this Bill. This provision re-enacts section 52A(2) of the Accident Compensation Act 1985. Clause 521 makes clear that the function of the Conciliation Service is to provide conciliation services for the purposes of the Accident Compensation Act 1985 and the Bill. The use of conciliation services is set out in clauses 280 to 301 in Division 2 of Part 6 of the Bill. This provision re-enacts section 52B of the Accident Compensation Act 1985. Clause 522 enables the Conciliation Service to do all things that are necessary or convenient to enable it to carry out its function. The provision re-enacts section 52C of the Accident Compensation Act 1985. 257

 


 

Clause 523 provides for the appointment of Conciliation Officers and the Senior Conciliation Officer in accordance with the terms and conditions specified in the instrument of appointment. Section 523 re-enacts section 52D of the Accident Compensation Act 1985 but omits 52D(3), which provides that a person may only be appointed as a Conciliation Officer if the person has consented to make himself or herself available for engagement by the Conciliation Service and to act in the role on the terms and for remuneration specified in writing by the Minister. These matters will be dealt with in the instrument of appointment. Further, by replacing "must" with "may" in subclause (1), the Bill introduces a discretionary power of the Governor in Council to make the appointments, which is consistent with other appointment provisions in the Bill. Clause 524 allows for the appointment of an acting Senior Conciliation Officer in specified circumstances. This ensures that the Conciliation Service is properly constituted and able to perform its functions where the Senior Conciliation Officer is unable to or it would be inappropriate for them to fulfil their duties, or the role is vacant. The provision re-enacts section 52G of the Accident Compensation Act 1985, but there is no equivalent to section 52G(3) of the Act, which provides for an acting appointment to be retrospective, because clause 524 allows a designated Conciliation Officer to act as a Senior Conciliation Officer while awaiting the Minister to formally appoint an acting Senior Conciliation Officer. This removes the need for retrospective appointment of an acting Senior Conciliation Officer. Clause 525 provides for the engagement of Conciliation Officers and staff so that the Conciliation Service is able to carry out its function. Subclauses (2) and (3) confirm that, in engaging a Conciliation Officer, the Conciliation Service is not to be taken as employing the Officer, except for the purpose of deeming the Officer to be a worker for certain purposes under the Bill. This means that a Conciliation Officer does not have the same rights and obligations of an employee, but is protected as a worker for the purposes of workers compensation. 258

 


 

This clause re-enacts section 52E(1), (3) and (4) in the Accident Compensation Act 1985. Sections 52E(2) and 52E(3A), which specify that a Conciliation Officer is engaged on the terms and conditions specified for their appointment, are not replicated in the Bill as they are unnecessary, as the terms and conditions for the appointment and engagement of Conciliation Officers are stated in the instrument of appointment. Clause 526 provides a statutory immunity for Conciliation Officers in respect of the exercise of their power or discharge of their functions or a duty under the Bill if done in good faith. Subclause (2) confirms that any liability that would otherwise attach to the Conciliation Officer, under subclause (1), attaches instead to the Conciliation Service. This clause re-enacts section 58 of the Accident Compensation Act 1958. Clause 527 sets out the functions of the Senior Conciliation Officer, which include ensuring that conciliations are conducted by the Conciliation Service in an expeditious and consistent manner, and specifying a requirement for the Senior Conciliation Officer to designate one or more Conciliation Officers to act in his or her absence. Subclause (1) re-enacts section 52F(1) of the Accident Compensation Act 1985, but a Conciliation Officer is required to comply with guidelines issued by the Minister rather than protocols issued by the Senior Conciliation Officer. The current guidelines make reference to protocols, which are developed by the Conciliation Service and are procedural in nature. The change ensures that the objectives of the Ministerial guidelines are given effect via the Senior Conciliation Officer (who is responsible for the operations of the Conciliation Service). Subclause (2) establishes a process for the appointment of an Acting Senior Conciliation Officer. The provision requires the Senior Conciliation Officer to designate, with the approval of the Minister, one or more Conciliation Officers to act as the Senior Conciliation Officer during a period referred to in section 524 (which specifies the circumstances when an acting appointment must be made). Ensuring a Conciliation Officer is appropriately appointed and readily available to act as the Senior Conciliation Officer when the need arises is intended to 259

 


 

approve the administrative efficiency of the Conciliation Service. Subclause (2) has no equivalent in the Accident Compensation Act 1958. Clause 528 empowers the Minister to issue binding guidelines as to how the Senior Conciliation Officer may exercise powers and carry out functions; and requires a Conciliation Officer to observe those guidelines. These guidelines are intended to provide an appropriate level of ministerial oversight in respect the arrangement of business of the Conciliation Service. Among other things, guidelines are intended to operate to ensure that conciliations are conducted in an independent, consistent and cost-effective manner. The guidelines include requirements for the Senior Conciliation Officer to advise the Minister on its functions and legislative or other changes to enhance the dispute resolution or operation of the scheme. This ensures that while the Conciliation Service is funded by the scheme, by reporting directly to the Minister, it is independent of the Authority, who is a party to disputes conciliated by the Conciliation Service. The clause confirms that guidelines must be made in accordance with clause 611 of the Bill, which requires that they be published on a Government internet website and in the Government Gazette. This is consistent with the publication requirements for other instruments made by the Minister and ensures transparency. The current guidelines issued under the Accident Compensation Act 1985 are published on the website of the Conciliation Service: www.conciliation.vic.gov.au. Clause 528 re-enacts section 52F(2) and 52F(3) of the Accident Compensation Act 1985. Clause 529 empowers the Senior Conciliation Officer to give directions as to the arrangement of business of the Conciliation Officers, which is intended to assist the Senior Conciliation Officer to carry out his or her functions specified in clause 527. The current directions of the Senior Conciliation Officer issued under the Accident Compensation Act 1985 are published on the website of the Conciliation Service: www.conciliation.vic.gov.au. 260

 


 

Clause 529 re-enacts section 56(1) of the Accident Compensation Act 1985. Clause 530 imposes certain reporting requirements on the Senior Conciliation Officer. Subclause 530 (1) obliges the Senior Conciliation Officer to collect specified data (as listed in the provision and for each financial year) that relates to the main functions and activities of the Conciliation Service. The Senior Conciliation Officer must, on or before 1 September of each year, collect and provide this data to the Minister. This requirement is intended to ensure an appropriate level of oversight by the Minister in relation to the operation of the Conciliation Service; and ensure that the Conciliation Service is appropriately accountable and transparent in relation to its operations. This is important given the work of the Conciliation Service has a direct impact on injured workers and the benefits they receive. Subclauses (2) and (3) further oblige the Senior Conciliation Officer to make the data publicly available as soon as reasonably possible, if any person requests the Senior Conciliation Officer to do so. This is intended to enhance transparency in relation to matters which are of public interest. The Conciliation Service publishes similar data in its annual report, which is publicly available. Copies of its annual reports are available on the Conciliation Service website: www.conciliation.vic.gov.au. This clause re-enacts section 52FA of the Accident Compensation Act 1985. Clause 531 prescribes when a Conciliation Officer will be deemed to cease holding office in circumstances where it would be inappropriate for them to continue holding office; and provides a general process for how a Conciliation Officer may resign his or her office. The provision re-enacts section 52H of the Accident Compensation Act 1985, except that clause 531 provides for a resignation to be given to the Governor in Council (who makes the appointment) rather than the Minister. The clause also excludes equivalents of subsections 52H(1)(a) and (c), as these provisions are superfluous. Their absence from section 52H would not have altered the operation of the section in any way. 261

 


 

Clause 532 allows the Senior Conciliation Officer to advise the Minister on the removal or suspension of a Conciliation Officer having regard to matters specified. This provision reflects the fact that, although each Conciliation Officer is appointed on the advice of the Minister, the Senior Conciliation Officer works more closely with them and is best placed to advise on how well they are performing their duties and meeting their terms and conditions of appointment. This provision is intended to operate in conjunction with clause 533. This clause re-enacts section 52I(1A) of the Accident Compensation Act 1985. Clause 533 allows for the removal of a Conciliation Officer by the Governor in Council on the recommendation of the Minister where the Conciliation Officer is not performing their required duties in specified circumstances or has committed a serious breach of privacy or of a term or condition of their engagement. Before the Minister may recommend removal, he or she must first allow the Conciliation Officer an opportunity to be heard; and provide them with written notice of an investigation for the Minister to determine whether removal ought to be recommended. A Conciliation Officer will be deemed to be suspended upon receiving such a notice from the Minister. This process is designed to ensure the integrity of the Conciliation Service and its Officers in fulfilling its function; while maintaining procedural fairness for a Conciliation Officer under investigation. This clause re-enacts section 52I(1) to (6) of the Accident Compensation Act 1985. Clause 534 sets out the requirements for the submission and approval of the Conciliation Service annual budget by the Minister, which must be prepared in advance of each financial year. These requirements are intended to ensure appropriate oversight of the Conciliation Service's budgetary arrangements. This clause re-enacts section 52K in the Accident Compensation Act 1985. 262

 


 

Clause 535 states the requirements for funding of the Conciliation Service by the Authority, which must be in accordance with the Conciliation Service's annual budget. This ensures that adequately funded to perform its function within appropriate constraints. This clause re-enacts section 52L in the Accident Compensation Act 1985. Clause 536 specifies the signature requirements for the Conciliation Service and confirms that a person can assume that a document has been duly signed by the Conciliation Service if it has been signed in accordance with subclause (1). This is intended to provide certainty of outcomes. Subclause 536(2) ensures that signatures on documents which appear to be signed in accordance with section 536(1) are taken as evidence that they have been duly signed by the Conciliation Service, which avoids the need for a party to prove that a document has been signed by the Conciliation Service in proceedings. This clause re-enacts section 52LA of the Accident Compensation Act 1985. The clause includes minor wording changes to ensure coverage of Conciliation Officers (rather than the Senior Conciliation Officer). The change has been made because in practice documents issued out of the Service (such as outcome certificates) are signed by Conciliation Officers. Division 2--Medical Panels Division 2 re-enacts the governance provisions relating to the Medical Panels set out in Division 3 of Part III of the Accident Compensation Act 1985, which is to be repealed. Medical practitioners are appointed to a Medical Panel to consider medical questions as defined in clause 3, which may be referred to the Medical Panel by a Conciliation Officer, the courts, the Authority or a self-insurer in accordance with the Act, where there is disagreement or uncertainty about a worker's injury, medical condition or capacity for work. Medical Panels play an important role in determining medical questions under this Bill, the Accident Compensation Act 1985 and Part VBA of the Wrongs Act 1958. The opinion of the Panel may assist in resolving a dispute about a worker's capacity for work or medical condition. 263

 


 

Clause 537 provides for the establishment and constitution of Medical Panels to carry out the functions of a Medical Panel under this Bill, the Accident Compensation Act 1985 and Part VBA of the Wrongs Act 1958. Medical Panels are constituted of medical practitioners who are on a list of members appointed by the Governor in Council. The appointees are nominated by the Minister on the recommendation of the Convenor, who is also a medical practitioner and so well placed to advise on the appropriateness of members. Subclause (3) provides that the Minister must appoint a Convenor and may appoint one or more Deputy Convenors from the list of members. The role of the Convenor is to manage referrals under the relevant Acts, with the support of the Deputy Convenor/s. Under subclause (4) the Convenor must appoint a Deputy Convenor to act in his or her absence. This is intended to ensure that the Medical Panels continue to operate smoothly despite any absence of the Convenor. As there may be more than one Deputy Convenor, it is intended that the Convenor provide for who will act in their absence in the Convenor's Directions on the Arrangement of the Business of the Medical Panels, which will be made available on the Medical Panel website at: www.medicalpanels.vic.gov.au. The Convenor's powers are set out in subclauses (6) and (7); and the preclusion of a medical practitioner from a Medical Panel in specified circumstances is set out in subclause (8). There is a statutory immunity from litigation in subclause (9) for consultants engaged by a Medical Panel. That immunity excludes reference to the Convenor and Medical Panel members. Medical Panel members and the Convenor are instead protected by a broad statutory immunity in clause 541. The terms and conditions of appointment of a member of a Medical Panel are set out in subclauses (10), (11) and (12); and the ability to appoint administrative support is set out in subclause (13). The opinion of a Medical Panel on a medical question is to be adopted and applied by any court, body or person and must be accepted as final and conclusive. 264

 


 

The process for establishing Medical Panels and the constitution requirements are intended to ensure well qualified Medical Panels which can be convened at short notice, thereby providing more efficient outcomes for injured workers. The provision re-enacts section 63 in the Accident Compensation Act 1985, but changes the effect in respect of the following-- Subclause (3) confirms that the Minister may appoint more than one Deputy Convenor from the list of members. The Accident Compensation Act 1985 only allows for the appointment a Deputy Convenor. Clause 537 makes consequential changes to require the Convenor to designate a Deputy Convenor who is to act in his or her absence, and to require the Minister to make a designation in the event that the Convenor fails to do so. The changes will ensure that a Deputy Convenor is readily available to act in the absence of the Convenor, which will assist the Medical Panels in carrying out functions efficiently and effectively. Clause 538 makes provision for the term, resignation and termination of members of the Medical Panels to ensure clarity around appointment. This clause re-enacts section 64 of the Accident Compensation Act 1985. Clause 539 sets out the advisory functions of the Convenor of the Medical Panels to the Minister. This is intended to ensure that the Minister is properly informed on specific matters as well as general operation and procedures, which allows him or her to provide more effective oversight. This clause re-enacts section 63A of the Accident Compensation Act 1985. Clause 540 makes clear that an act or decision of a Medical Panel is not invalid by reason only of any defect or irregularity in or in connection with the appointment of a member. While the opinion of a Medical Panel on a medical question is still able to be challenged on other administrative law grounds, such as a breach of procedural fairness, this provision is intended to ensure that decisions are not invalid only because of issues with the appointment of the Panel member. 265

 


 

This clause re-enacts section 66 of the Accident Compensation Act 1985. Clause 541 provides legal protection to the Convenor and the Members of the Medical Panels by affording to them in the performance of their duties the same protection and immunity as a Judge of the Supreme Court in the performance of his or her duties. This recognises that the Panels and the Convenor perform a quasi-judicial role, in making determinations of a binding and conclusive nature. This clause re-enacts section 65(10) of the Accident Compensation Act 1985. PART 13--GENERAL Part 13 of this Bill contains general provisions that relate to the rest of the Bill in relation to indexation of amounts, the making of agreements by the Authority, access to information, the issue of search warrants, prohibited conduct relating to touting for claims, regulation of providers of professional services, offences for discriminatory conduct, offences for fraud and bribery, provisions relating to offences generally, the making of guidelines and directions, the Independent Broad-Based Anti-corruption Commission, and transitional and savings provisions. Part 13 re-enacts a number of provisions from Part VIIA and Part VIII of the Accident Compensation Act 1985, and those provisions will apply to both that Act and the Bill. However, the Accident Compensation Act 1985 retains its indexation provisions. Division 1--Indexation Clause 542 requires the amount of a weekly payment to a worker to be varied annually on the anniversary of the worker's injury by reference to the worker's pre-injury weekly average weekly earnings. The amount of a weekly payment to a worker is amended using the formula contained in clause 542. The formula ensures that the amount of weekly payments that are paid to injured workers is adjusted by the percentage movement in average weekly earnings over the most recent twelve month period for which the Australian Bureau of Statistics figures are available, subject to the protection in clause 546 that this adjustment will not be made if it would reduce the payment amount. 266

 


 

Clause 542 operates the same as section 100 of the Accident Compensation Act 1985, but the descriptions have been updated to accommodate recent changes, if any, and as far as possible, future changes, in the timing and frequency of the Australian Bureau of Statistics data publication. Clause 543 requires that the amount of weekly payments of pension payable under clause 241 to a deceased worker's dependants must be varied on 1 July each year (the variation date) in accordance with the formulas contained in that clause. The formulas in clause 543 relies on the change in average weekly total earnings between two equivalent points in time a year apart to adjust amounts payable to a worker or their dependants. The formula ensures that the amount of weekly payments that are paid or payable to injured workers or the deceased worker's dependants is adjusted by the percentage movement in average weekly earnings over the most recent twelve month period for which ABS figures are available, subject to the protection in clause 546 that this adjustment will not be made if it would reduce the payment amount. Clause 543 operates the same as section 100A of the Accident Compensation Act 1985 but the descriptions have been updated to accommodate recent changes, if any, and as far as possible, future changes, in the timing and frequency of the Australian Bureau of Statistics data publication. Clause 544 requires that certain amounts which are specified in column 2 of the Table must be varied in on 1 July 2014 and then on 1 July (the variation date) for each year after in accordance with the formula in clause 544. The formula ensures that the amount of weekly payments that are paid or payable to injured workers is adjusted by the percentage movement in average weekly earnings over the most recent twelve month period for which the Australian Bureau of Statistics figures are available, subject to the protection in clause 546 that this adjustment will not be made if it would reduce the payment amount. 267

 


 

Clause 544 operates the same as section 100B of the Accident Compensation Act 1985 but the descriptions have been updated to accommodate recent changes, if any, and as far as possible, future changes, in the timing and frequency of the Australian Bureau of Statistics data publication. Clause 545 requires that certain amounts which are specified in column 2 of the Table must be varied on 1 July 2014 and then on 1 July (the variation date) for each year after in accordance with the formula in clause 545. The formula ensures that the amount of weekly payments that are paid or payable to injured workers injured workers is adjusted by the percentage movement in consumer price index over the most recent twelve month period for which the Australian Bureau of Statistics figures are available, subject to the protection in clause 546 that this adjustment will not be made if it would reduce the payment amount. Clause 545 operates the same as section 100C of the Accident Compensation Act 1985 but the descriptions have been updated to accommodate recent changes, if any, and as far as possible, future changes, in the timing and frequency of the Australian Bureau of Statistics data publication. Clause 546 provides that where an adjustment made to amounts in clauses 542, 543, 544 or 546 would lead to a reduction in the amount of compensation paid or payable, the adjustment will have no effect and the amounts will remain unchanged on that occasion. Clause 546 is intended to ensure that payments under the Bill are not reduced, even if there has been a reduction in the relevant the Australian Bureau of Statistics data over the past year. Clause 546 operates the same as section 100D of the Accident Compensation Act 1985. Clause 547 provides for the rounding of amounts calculated in Division 1 and how it is to occur. This clause ensures manageable amounts to be paid. Clause 547 operates the same as section 100E of the Accident Compensation Act 1985. 268

 


 

Division 2--Agreements Clause 548 confers power on the Authority to enter into agreements with a person or body constituted by a law of a corresponding State (defined in subclause (3)), in respect of an injury arising out of or in the course of a worker's employment in Victoria or the corresponding State. The agreement may provide that the provisions of the Bill or the Accident Compensation Act 1985 are to be applied where a worker who is a Victorian resident suffers a work-related injury or death while in the corresponding State. In this case, the agreement may provide that the laws of the corresponding State do not apply. Conversely, an agreement may provide that the laws of a corresponding State apply and the Victorian laws do not apply where a worker who is a resident in a corresponding State is injured in Victoria. The provision ensures the worker or the worker's dependents can access the same entitlements as other Victorian workers and that workers who reside in other corresponding States are covered by the relevant scheme where they reside. This provision re-enacts section 237A of the Accident Compensation Act 1985. Clause 549 confers power on the Authority to enter into reciprocal agreements with another State in relation to the payment of premium or other amounts in respect of remuneration paid or payable for services performed or rendered partly in Victoria and partly in the corresponding State. The agreement may provide that the provisions of the Bill or the Accident Compensation (WorkCover Insurance) Act 1993 (ACWI) do not apply in respect of remuneration paid or payable in relation to services rendered partly in Victoria or the corresponding state, or that the provisions of the law of the corresponding state apply and the provisions of the Bill or the ACWI do not apply in respect of such remuneration. This ensures employers are subject to obligations under the most relevant scheme in respect of premium and other amounts. This provision operates the same as section 65 of the Accident Compensation (WorkCover Insurance) Act 1993. 269

 


 

Clause 550 confers power on the Authority to enter into reciprocal agreements with another person or body in relation to the provision of an ambulance service, hospital service, medical service, nursing service, or personal and household service. The provisions enable the Authority to enter agreements in order to meet its obligations under Division 7 of Part 5 of the Bill or Division 2B of Part IV in the Accident Compensation Act 1985 by making payments in respect of classes or groups of cases or claims rather than on an individual basis. This clause re-enacts section 238 (with the exception of section 238(5)) of the Accident Compensation Act 1985. The requirement in section 238(5) of the Accident Compensation Act 1985 to publish notice of the making or revocation of an agreement in the Government Gazette has been substituted with a requirement to publish on the Authority's internet site. This change is intended to facilitate the efficient making and revocation of agreements while still ensuring there is appropriate notification. Clause 551 confers power on the Authority to enter into certain types of incentive agreements in order to seek to improve employer performance. The clause does not empower the Authority to waive or reduce the amount of premium an employer is liable to pay, however, it does enable the Authority to make payments in the nature of a refund of premium. The clause re-enacts section 238A of the Accident Compensation Act 1985. Division 3--Access to information Clause 552 empowers the Authority to obtain information and evidence from any person for specified purposes. It enables the Authority to access information in relation to entitlements to compensation under the Bill, the Accident Compensation Act 1985 and the Workers Compensation Act 1958, and in relation to contraventions of the Bill and those Acts. These powers assist the Authority to carry out its function to detect and deter fraudulent compensation claims. This clause re-enacts section 239 of the Accident Compensation Act 1985. 270

 


 

Clause 553 empowers persons authorised by the Authority to enter and inspect premises and to obtain information and documents for the purposes of determining whether there has been a contravention of the Bill, the Accident Compensation Act 1985, or the Workers Compensation Act 1958 and generally to enforce the provisions of the Bill and those Acts. The power to enter, inspect and examine premises in subclause (1)(a) may only be exercised without force. Subclause (2) requires the consent of the occupier if the powers are exercised in any part of premises used only for residential purposes. These powers ensure the Authority is able to investigate potential breaches in relation to the scheme. The note makes clear that the provision does not affect clause 597 in relation to the protection against self-incrimination, or clause 598 in relation to legal professional privilege and client legal privilege. This clause re-enacts clause 240 of the Accident Compensation Act 1985. Clause 554 establishes certain offences which relate to interference with a person exercising powers under clauses 552 and 553. The penalties for each offence are consistent with the scale in the Sentencing Act 1991. The offences under clauses 554(1) and 554(2) relate to obstructing or hindering a person exercising powers; and without reasonable excuse, refusing or failing to comply with a requirement made by a person exercising powers under section 552 or 553; and attract a maximum penalty of up to a maximum of 60 penalty units for a natural person, and 300 penalty units for a body corporate. Section 554(3) carries a heavier penalty which reflects the seriousness of the offence, being to assault, intimidate or threaten, or attempt to assault intimidate or threaten a person exercising powers under section 552 or 553. It sets a maximum of 240 units or 2 years imprisonment or both for a natural person, and 1200 penalty units for a body corporate. This clause re-enacts section 241 of the Accident Compensation Act 1985. Clauses 555, 556 and 557 enable the Authority to obtain necessary information from certain agencies, being the Victoria Police, the Roads Corporation (VicRoads) and the courts. 271

 


 

It is intended that only information that is necessary to assessing a worker's entitlement to compensation will be obtained, and will be available to the Authority on a case by case basis. The disclosure, collection and use of the information will be subject to inter-agency confidentiality agreements, as well as existing privacy laws, standards and protocols. For example, in the case of the Victoria Police, the disclosure of information will be subject to any protocols issued by the Commission for Law Enforcement and Data Security. For the avoidance of any doubt, the provisions make it clear that they are intended to apply 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 41(7). Clauses 555, 556 and 557 re-enact sections 239AAA, 239AAB and 239AAC of the Accident Compensation Act 1985 respectively. Division 4--Issue of search warrants Clause 558 empowers a Magistrate to issue a warrant authorising any member of the police force together with any other person named in the warrant to enter and search premises, take possession of or secure records and other documents and retain those records and other documents or deliver them into the possession of the Authority or a person named by the Authority for certain purposes. The clause establishes certain offences which are intended to ensure that search warrants are effective. The penalties are consistent with the scale in the Sentencing Act 1991. The offence under clause 558(8) which relates to obstructing or hindering a person employed or acting in the execution or under the authority of a warrant or aiding or assisting in its execution, carries a maximum penalty of 60 penalty units for a natural person and 300 penalty units for a body corporate. The offence under clause 558(9) of refusing to permit to a search or seizure authorised by a warrant issued under clause 558(1) carries a maximum penalty of 60 units or 6 months imprisonment or both for a natural person 300 penalty units for a body corporate. 272

 


 

Clause 558(10) carries a heavier penalty which reflects the seriousness of the offence to assault or attempt to assault a person employed or acting in the execution or under the Authority of a warrant or aiding or assisting in its execution. The maximum penalty for this offence is 240 units or two years imprisonment or both for a natural person, and 1200 penalty units for a body corporate. This clause re-enacts section 240A of the Accident Compensation Act 1985 with the exception of the penalty provision in section 240A(5). While the offence is the same in clause 558(9), the penalty provision has been changed from a maximum of 100 penalty units or 6 months imprisonment or both for a natural person and 300 penalty units for a body corporate. The penalty amounts have been modified to align with the penalty scale in the Sentencing Act 1991. Division 5--Prohibited conduct relating to touting for claims Division 5 of Part 13 of the Bill is intended to discourage agents and others from engaging in certain types of prohibited conduct relating to touting. For example, conduct which impacts on the integrity of the scheme, such as an agent encouraging a person to make a claim and to use the services of the agent. The provisions establish criminal offences and civil causes of action in order to discourage such conduct. The penalties prescribed are consistent with the penalty scale in the Sentencing Act 1991. The provisions in this Division re-enact section in Part VIIA, apart from section 187 of the Accident Compensation Act 1985. Section 187 has been omitted from the Bill because it of a transitional nature and is no longer required. Clause 559 provides definitions of agent, claim, prohibited conduct and protected claim and special interpretation rules for the purposes of Division 5 of Part 13. The definition of agent limits the ordinary meaning of the term to those persons to whom Division 5 is intended to apply. The definition of claim makes it clear that the provisions are intended to apply to claims under this Bill, the Accident Compensation Act 1985 and the Workers Compensation Act. The definition of protected claim identifies certain types of claims in the Bill and the Accident Compensation Act 1985 which are concerned with hearing loss injuries. 273

 


 

This clause re-enacts section 179 of the Accident Compensation Act 1985. Clause 560 establishes the types of conduct by an agent that will constitute prohibited conduct for the purposes of Division 5. The provisions refer to various types of conduct engaged in for the purpose of encouraging a person to make a protected claim and to use the services of the agent or of some other person from whom the agent receives any payment in connection with the claim. This clause re-enacts section 180 of the Accident Compensation Act 1985. Clause 561 makes it an offence for an agent to engage in prohibited conduct and sets a maximum penalty of 60 penalty units for a natural person, and 300 penalty units for a body corporate. The penalty is consistent with the scale in the Sentencing Act 1991. This clause re-enacts section 181 of the Accident Compensation Act 1985. Clause 562 establishes certain consequences for prohibited conduct for the recovery of fees by agents. The provisions state that an agent is not entitled to recover from a person any fees, costs or other charges that would otherwise be payable by the person in connection with services if the person made use of the services as a result of prohibited conduct by the agent. Clause 562(4) establishes that where a person has paid any such amounts to an agent then the person is entitled to recover the amount from the agent as a debt in a court of competent jurisdiction. This is intended to provide a disincentive for agents to accept these types of payments. Clause 562 re-enacts section 182 of the Accident Compensation Act 1985. Clause 563 sets out the consequences of prohibited conduct which specifically apply to legal practitioners. Section 563(1) makes it an offence for a legal practitioner who acts for a person on a claim to seek to recover amounts by disbursements for fees paid in connection with the referral of the person if the legal practitioner knows or has reasonable grounds to suspect that the agent engaged in prohibited conduct. The provision imposes maximum penalties of 60 penalty units 274

 


 

for a natural person, or 300 penalty units for a body corporate. The penalty is consistent with the scale in the Sentencing Act 1991. The provisions also state that a legal practitioner is not entitled to recover from any person any amount by way of disbursements for fees paid to an agent in connection with the claim if the claim was made as a result of prohibited conduct, and clause 563(5) establishes that a person who has paid such an amount to a legal practitioner is entitled to recover the amount from the legal practitioner as a debt in a court of competent jurisdiction. This is intended to provide a disincentive for legal practitioners to accept these payments. This clause re-enacts section 183 of the Accident Compensation Act 1985. Clause 564 establishes that in certain circumstances the Authority, an employer or a self-insurer is entitled to request a legal practitioner or agent to provide a certificate that, to the best of the practitioner's or agent's knowledge, no agent has engaged in prohibited conduct that involved encouraging a person to make a claim except as may be disclosed in the certificate. There are costs consequences for a legal practitioner or agent who fails to comply with a request for a certificate. Section 564(5) makes it an offence for a legal practitioner or agent to give a certificate that fails to properly disclose that the legal practitioner or agent knew or had reasonable cause to suspect that an agent had engaged in prohibited conduct. The provision imposes maximum penalties of 60 penalty units for a natural person, and 300 penalty units for a body corporate. The penalty is consistent with the scale in the Sentencing Act 1991. This clause re-enacts section 184 of the Accident Compensation Act 1985. Clause 565 empowers the Authority to restrict or ban recovery of costs by agents who engage in prohibited conduct, by giving notice to an agent that the agent is not entitled to recover any fees, costs or other charges in connection with any claims or a class of claims specified in the notification. The Authority cannot give such a notification unless it is satisfied of certain matters and must also give the agent a reasonable opportunity to make written 275

 


 

submissions on the matter. The clause includes a process for independent review of a decision to give a notification before the Victorian Civil and Administrative Tribunal (VCAT). This clause re-enacts section 185 of the Accident Compensation Act 1985. Clause 566 empowers the Authority to restrict or ban agents who engage in prohibited conduct. The provision enables the Authority to give a written direction to an agent to prohibit the agent from acting for any person in connection with any claims or claims of a specified type. The Authority must not give such a direction unless satisfied of certain matters. The provisions also establish a process for independent review of a decision to give a direction before VCAT. Section 566(3) makes it an offence for an agent to knowingly act in contravention of a direction given under the clause and imposes maximum penalties of 120 penalty units for a natural person, and 600 penalty units for a body corporate. The penalty is consistent with the scale in the Sentencing Act 1991. This clause re-enacts section 186 of the Accident Compensation Act 1985. Clause 566(3) is a modification of section 186(3) because it clarifies that the offence includes a mental element, to knowingly engage in a contravention of a direction. The change has been made because it is not intended this offence be prosecuted as a strict liability offence and so the prosecution must prove that the Agent received the relevant direction. The maximum penalty has been elevated from 60 units for a natural person or 300 units for a body corporate to a level that is appropriate for an offence that is not a strict liability offence. The penalty is consistent with the scale in the Sentencing Act 1991. Clause 567 requires a person who makes a protected claim (as defined in clause 559), which include claims relating to hearing loss, to comply with a request from the Authority or self-insurer for information in relation to the use of services of an agent or legal practitioner. This provision is intended to assist the Authority and self-insurers in detecting breaches of the anti-touting provisions, particularly in relation to hearing loss claims. Clause 567 re-enacts section 188 of the Accident Compensation Act 1985. 276

 


 

Division 6--Regulation of providers of professional services Division 6 of Part 13 establishes rules for the regulation of conduct of providers of professional services where that conduct does not meet certain standards. The provisions confer various powers on the Authority and the courts to refer service providers for reviews of conduct, to suspend payments for professional services, and to suspend or revoke approvals to provide services in certain circumstances, such as where the Authority has determined that the provider has acted in an unprofessional manner. The provisions re-enact the provisions in section 249AA to 249AF of the Accident Compensation Act 1985, which are to be repealed. Clause 568 confers various powers on the Authority and the courts to suspend certain payments for services provided by a person who has committed a relevant offence, which is defined in subclause (7), and may include an offence against the Crimes Act 1958 that occurs in connection with a claim for compensation under the Bill. This provision seeks to protect the integrity of the scheme, by ensuring that where the Authority suspects a provider has committed a relevant criminal offence, the Authority may suspend payments to that provider. Subclause (4) provides for the court to make orders relating to the suspension of payments if the Authority makes a determination to suspend payments to the provider under subclause (1). The power to suspend payments is subject to clause 572, is balanced by clauses 572 which require the Authority to give written notice of a determination and to invite and consider submissions from the provider. Clause 574 also enables the provider to seek a review of a determination by VCAT. This clause re-enacts section 249AA of the Accident Compensation Act 1985. Clause 569 enables the Authority to make certain determinations by written notice to a person who provides or may provide a professional service, where the person has been convicted or found guilty of a "disqualifying offence". A "disqualifying offence" is defined in subclause (3) 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. The clause 277

 


 

specifies the determinations that may be made, which include the revocation of an approval in relation to a person who has been approved to provide a professional service under the Bill. Before the Authority makes a determination, the Authority must comply with clause 572, which ensures the person is notified and has an opportunity to make submissions on a proposed determination. This clause re-enacts section 249AB of the Accident Compensation Act 1985. Clause 570 sets out specific powers for the Authority to regulate the conduct of service providers where the Authority has concerns regarding the adequacy, appropriateness or frequency of the provision of the professional services provided. The provisions apply to service providers who are regulated by professional bodies as well as service providers who are not regulated by a non-professional body. The clause also requires the Authority to notify self-insurers of determinations made in relation to a notice given under subclause (2)(b), (3) and (5). Where there is a relevant body responsible for regulating the provider's trade or profession, the Authority may refer the conduct and any other related matters to the relevant body for investigation or review. The Authority may, by written notice, suspend payments to the provider for professional services, pending findings of the relevant body. In relation to providers whose trade or profession is not regulated by a professional body, the Authority may give a written warning to the provider of the Authority's concern with the conduct and notify the provider that the Authority may suspend payment of the service provider's costs pending review of the service provider's conduct. The Authority may also review the service provider's conduct and, where the Authority determines it appropriate, also suspend payment of the costs of the professional services by the service provider while the Authority conducts its review. Subclause (5) specifies what the Authority may do if, following the review, the Authority forms certain views regarding the suitability of the provider. For instance, if the Authority considers the provider has acted in an unreasonable or unprofessional manner, the Authority may by notice suspend the provider's approval as a provider of the 278

 


 

relevant services or revoke the person's approval as a provider of the relevant services. This clause re-enacts section 249B of the Accident Compensation Act 1985. Clause 571 empowers the Authority to act on findings of a relevant body where the Authority is concerned about the adequacy, appropriateness, or frequency of any professional service provided by a service provider. A relevant body is defined to include Medicare Australia and a court or tribunal. The Authority may act on the following findings of the relevant body-- that the service provider has, by act or omission, engaged in unprofessional conduct or professional misconduct; that the service provider's ability to practice is adversely affected as a result of the service providers' physical or mental health or incapacity; that the service provider is not of good character or otherwise not a fit and proper person. If the relevant body has made such findings, the Authority has the power to determine that that it is not liable to pay the costs of the provider as compensation for the period of suspension or for a specified period after the determination is made. This clause re-enacts section 249BA of the Accident Compensation Act 1985. Clause 572 establishes that the Authority, before making a determination in relation to a person under section 568, 569 or 570 (except subsection (3)(b) or (6)) or 571, must provide written notice to the person of the determination it proposes to make, inviting the person to make a written submission to the Authority within 28 days as to why the determination should not be made. The Authority must consider any submission before making the determination. This clause re-enacts section 249BB of the Accident Compensation Act 1985. 279

 


 

Clause 573 provides the Authority with a discretion to publish the outcome of determinations of the Authority or orders of the Court under sections 568, 569, 570 or 571 together with the name and business address of a service provider the subject of the determinations and orders. This clause re-enacts section 249BC of the Accident Compensation Act 1985. Clause 574 establishes a process for review of a decision of the Authority under Division 6 before VCAT. It requires an application for review to be made within 12 months after the person became aware of the decision. Subclause (2) confirms that a decision of the Authority under clause 570(2)(a) to notify a relevant body or to refer the conduct of a person for review cannot be the subject of an application for review by VCAT. This clause re-enacts section 249C of the Accident Compensation Act 1985. Division 7--Discriminatory conduct Division 7 of Part 13 establishes criminal offences in relation to discriminatory conduct; and also provides civil remedies to persons subjected to discriminatory conduct. The equivalent provisions in the Accident Compensation Act 1985, sections 242AA to 242AF will be repealed by the Bill. Clause 575 establishes the offence for an employer or prospective employer to engage in "discriminatory conduct" for a "prohibited reason" and imposes maximum penalties of 240 penalty units for a natural person, and 1200 penalty units for a body corporate. The penalty is consistent with the scale in the Sentencing Act 1991. Subclause (2) specifies a range of conduct that would constitute discriminatory conduct by an employer, such as dismissing or threatening to dismiss a worker from employment. Subclause (4) specifies conduct that would constitute discriminatory conduct by a prospective employer, such as refusing or failing to offer employment to a job applicant. 280

 


 

Under subclause (3), an discriminatory conduct is engaged in for a prohibited reason if the dominant reason for the conduct 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 clause 552 or 553 (to furnish the Authority with information or access to books, or to give evidence in relation to certain matters). Similar reasons are set out in subclause (5) in relation to a prospective employer. Where all the facts constituting the discriminatory conduct are proved, the employer or prospective employer will bear the evidentiary onus of proving that the reason alleged was not the dominant reason for the conduct. Subclause (7) sets out specific defences that an employer or prospective employer can raise in proceedings for an offence against the provision, which includes that--the conduct was necessary to comply with the requirements of this Bill, the Accident Compensation Act 1985 or the Occupational Health and Safety Act 2004. This clause re-enacts section 242AA of the Accident Compensation Act 1985. Clause 576 establishes 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 clause 575. These include an order-- to pay damages to compensate the worker or applicant for hurt and humiliation as the result of the discriminatory conduct; or 281

 


 

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. Clause 576(2) provides that the court in making an order under this section 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. Clause 576(3) provides that nothing in a proceeding in relation to clause 576 gives rise to an issue estoppel. This is intended to ensure that all the issues raised in a proceeding under clause 575 or 578 can be disputed in any future proceeding under the Bill or the Accident Compensation Act 1985 (including common law applications or proceedings). This clause re-enacts section 242AB of the Accident Compensation Act 1985. Clause 577 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. The provisions also enable a worker or job applicant to request review of the matter by the Director of Public Prosecutions (DPP) if the Authority determines that no prosecution will be brought after reviewing the matter. In this case, the DPP will consider the matter referred and advise the Authority whether the Director considers a prosecution should be brought. The Authority is required 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. Clause 577(7) prohibits proceedings being brought in relation to a decision by the Authority to bring or not to bring proceedings for an offence under clause 575. This provision is intended to ensure there is no merits review or judicial review of such a decision because the provision allows a specific process for independent review by the DPP. This clause re-enacts section 242AC of the Accident Compensation Act 1985. 282

 


 

Clause 578 establishes a civil cause of action relating to discriminatory conduct. It enables a worker or an applicant for employment to apply to the Industrial Division of the Magistrates' Court for specific orders in relation to discriminatory conduct engaged in for a prohibited reason by an employer or prospective employer against that worker or applicant. The substance of the types of conduct that are regarded as discriminatory are the same for the civil proceeding and criminal offence. Subclauses (2) and (4) are modelled on the definition of prohibited reason in relation to the criminal offence in clause 575, but differ 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. Clause 578(5) enables a worker or job applicant to apply to the Magistrates' Court for an order against an employer or prospective employer in relation to discriminatory conduct carried out against the worker for a prohibited reason. There are also various provisions governing such an application, including that a worker can only bring such an application within one year of the date on which the discriminatory conduct occurred. Clause 578(7) confirms that where all the facts constituting the discriminatory conduct are proved, the employer or prospective employer will bear the evidentiary onus of proving that the reason alleged was not the substantial reason for the conduct. Clause 578(8) sets out the specific defences that an employer or prospective employer can raise in relation to an offence against clause 578. These defences are consistent with defences in clause 575(7). Under clause 578(9), 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 are consistent with the orders in clause 576(1). Clause 578(10) provides that the court in making an order under clause 578 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. 283

 


 

Clause 578(11) provides that each party to a civil proceeding under clause 578 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 VCAT. This clause re-enacts section 242AD of the Accident Compensation Act 1985. Clause 579 Clause 579(1) provides that a successful civil action under clause 578 does not prevent a prosecution in relation to the criminal offence under clause 575. Clause 579(2) and (3) prevent a worker or applicant for employment from obtaining double payment of damages or other redress under clause 576 and 578 in relation to the same conduct. This clause re-enacts section 242AE of the Accident Compensation Act 1985. Clause 580 confirms that an application by a worker for an order under clause 576 or 578 in relation to discriminatory conduct is not a proceeding in respect of an injury within the meaning of section 326 or Division 8A or 9 of Part IV of the Accident Compensation Act 1985. In other words, this provision clarifies that workers can bring an action for an order under the anti-discrimination provisions without having to meet the serious injury criteria or undergo procedural steps in the common law provisions. This clause re-enacts section 242AF of the Accident Compensation Act 1985. Division 8--Offences Subdivision 1--Fraud, bribery and false information Division 8 of Part 13 establishes criminal offences for fraud, bribery and false information as they relate to Victorian workers compensation. All penalties in this Part are consistent with the scale in the Sentencing Act 1991. Clause 581 Clause 581(1) makes it an offence for a person to obtain or attempt to obtain fraudulently any payment under the Bill, the Accident Compensation Act 1985 or the Worker's 284

 


 

Compensation Act 1958. The provision imposes a maximum penalty of 240 penalty units or 2 years imprisonment for a natural person, and 1200 penalty units for a body corporate. Section 581(2) contains a similar offence in relation to obtaining or attempting to obtain fraudulent payments for another person or assisting another person to obtain fraudulent payments. It also imposes a maximum penalty of 240 penalty units or 2 years imprisonment for a natural person and 1200 penalty units for a body corporate. Clause 581 re-enacts section 248 of the Accident Compensation Act 1985, with the exception of the penalty provisions in subsections (1) and (2). The maximum penalties of 1000 units or 2 years imprisonment for a natural person and 5000 units for a body corporate have been amended to align with the penalty scale in the Sentencing Act 1991. The reduced penalty unit levels reflect the fact that there are overlapping offences in the Crimes Act 1958, which carry high penalties. Clause 582 creates offences for seeking, receiving, giving or offering bribery. Section 582(1) makes it an offence for a person employed in the administration of this Bill, the Accident Compensation Act 1985 or the Workers Compensation Act 1958 to corruptly ask for, receive or obtain, or agree to receive or obtain, any money property or benefit of any kind for the person employed or any other person-- in relation to the performance of the person's functions or duties under Victorian workers compensation legislation in the circumstances set out in the provision; or for the person employed to use or take advantage of his or her position improperly to gain any benefit or advantage for or facilitate the commission of an offence by another person. An offence under clause 582(1) carries a maximum penalty of 240 units or 2 years imprisonment for a natural person or 1200 penalty units for a body corporate. 285

 


 

Section 582(2) makes it an offence for a person to corruptly give to, confer on or procure for, or promise to do such things for, a person employed in the administration of this Bill or any other person any money, property or benefit of any kind-- in relation to the performance of the person's functions or duties under this Bill in the circumstances set out in the provision; or for the person employed to use or take advantage of his or her position improperly to gain any benefit or advantage for or facilitate the commission of an offence. An offence under clause 582(2) also carries a maximum penalty of 240 units or 2 years imprisonment for a natural person or 1200 penalty units for a body corporate. Clause 582 re-enacts section 248AA of the Accident Compensation Act 1985 with the exception of the penalty provisions in subsections (1) and (2). The maximum penalties of 1000 units or 2 years imprisonment for a natural person and 5000 units for a body corporate have been amended to align with the penalty scale in the Sentencing Act 1991. The reduced penalty unit levels reflect that there are overlapping offences in the Crimes Act 1958, which carry high penalties. Clause 583 Clause 583(1) makes it an offence for a provider of a professional service or a person on behalf of such a provider to give another person information in connection with a claim for compensation under this Bill, the Accident Compensation Act 1985 or the Workers Compensation Act 1958 if the provider or person knows the information is false or misleading in a material particular. Clause 583(2) makes it an offence for a person to use information of the kind referred to in section 583(1) where the person knows the information is false or misleading in a material particular. The offence provisions in sections 583(1) and 583(2) in relation to giving and using false or misleading information both impose maximum penalties of 180 penalty units or 6 months imprisonment for a natural person, and 900 penalty units for a body corporate. 286

 


 

This clause re-enacts section 248A of the Accident Compensation Act 1985. Clause 584 makes it an offence to 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 premium. The provisions apply to persons providing advice to or acting on behalf of an employer. Clause 584(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. Clause 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 offence provisions in clauses 584(1) and 584(2) both impose maximum penalties of 180 penalty units or 6 months imprisonment for a natural person, and 900 penalty units for a body corporate. This clause re-enacts section 248AB of the Accident Compensation Act 1985. Clause 585 makes it an offence to provide false or misleading information under this Bill or the Accident Compensation Act 1985 or the Workers Compensation Act 1958. Clause 585(1) makes it an offence to provide orally or in writing or by electronic communication any false or misleading information and imposes maximum penalties of 60 penalty units for a natural person and 300 penalty units for a body corporate. Subclause (2) confirms that a reference to information is intended to include any information in or in connection with any claim, application, certificate or notice. Clause 585(3) makes it an offence for a person to make a statement knowing that it is false or misleading in a material particular. The offence applies to a statement in any claim, notice, medical certificate, certificate of capacity, and any other document accompanying a claim or supplied in connection with a claim. The provision imposes maximum penalties of 287

 


 

180 penalty units or 6 months imprisonment or both for a natural person, or 900 penalty units for a body corporate. Clause 585 re-enacts section 249 of the Accident Compensation Act 1985, with the exception of the penalty provision in section 249(1) for the offence to provide false or misleading information. The maximum penalty of 120 penalty units for a natural person and 600 penalty units for a body corporate has been reduced by clause 585(1) to reflect that it is a strict liability offence. Clause 586 empowers the Authority to inquire into and investigate activities by any person in the course of which the Authority reasonably believes an offence against Subdivision 1 may have occurred. The provisions require the Authority to conduct any investigations in accordance with relevant regulations and to notify the Chief Commissioner of Police of a proposed investigation and exchange any information requested by the Chief Commissioner. This clause re-enacts section 248B of the Accident Compensation Act 1985. Clause 587 provides that the Authority may recommend to the DPP that appropriate indemnities be offered for the purpose of enabling information to be obtained about alleged offences against Subdivision 1. The power to grant an indemnity from prosecution is a function of the DPP under section 22 of the Public Prosecutions Act 1994. This clause re-enacts section 248C of the Accident Compensation Act 1985. Subdivision 2--Other offences Clause 588 makes it an offence for a person to use information obtained under or pursuant to this Bill, the Accident Compensation Act 1985 or the Workers Compensation Act 1985 except as authorised by or in respect of a matter or for a purpose arising under such legislation. It prescribes a maximum penalty of 60 penalty units. The provision is intended to ensure information that is obtained under Victorian workers compensation legislation is used only for purposes arising under that legislation and otherwise remains confidential. 288

 


 

This clause re-enacts section 242A of the Accident Compensation Act 1985, with modification to the maximum penalty for an offence against the provision. The penalty has been reduced from a maximum of 100 penalty units to 60 penalty units to ensure the provision aligns with the penalty scale in the Sentencing Act 1991 and to reflect that it is a strict liability offence. Section 589 makes it an offence for a person to obstruct or hinder a person acting in the administration of the Bill, the Accident Compensation Act 1985, the Workers Compensation Act 1958 or any regulations under those Acts and imposes maximum penalties of 60 penalty units for a natural person, and 300 penalty units for a body corporate. This clause re-enacts section 250 of the Accident Compensation Act 1985. Division 9--Miscellaneous Clause 590 establishes a presumption in relation to a certificate purporting to be signed by an officer or employee of the Authority which certifies certain amounts (including amounts of compensation) paid or payable by the Authority, as evidence of the matters stated in the certificate and, in the absence of evidence to the contrary, proof of those matters. This clause re-enacts section 239A of the Accident Compensation Act 1985. Clause 591 provides the Authority may perform the functions of a State taxation officer for the purposes of Part IIIA of the Taxation Administration Act 1953 of the Commonwealth. This facilitates co-operation between Commonwealth and State taxation authorities and for the referral of certain taxation matters to the Commonwealth Commissioner of Taxation for investigation. This clause re-enacts section 244A of the Accident Compensation Act 1985. Clause 592 establishes that any document arising out of the office of the Authority and bearing the written, stamped or printed signature of the chief executive officer of the Authority or a delegate of the Authority or a person authorised by a delegate, is taken to 289

 


 

have been duly signed by the person by whom it purports to have been signed until the contrary is proved. These provisions enable persons to rely on such signatures and documents until it is proved that such signatures are false. This clause re-enacts section 245 of the Accident Compensation Act 1985. Clause 593 establishes rules relating to the service of documents under the Bill, the Accident Compensation Act 1985 or the Workers Compensation Act 1958 or the regulations by the Authority. Clause 593(1) establishes that a document required or authorised by the Bill or the regulations to be served or given by the Authority or a self-insurer is deemed to have been duly served or given in the circumstances specified in the provision relating to personal delivery and sending by post. This clause re-enacts section 246 of the Accident Compensation Act 1985, and makes clear that the provision is in addition to and not in derogation of other legislation which deals with the service of documents. For instance, it is intended service may be effected by email if it is in accordance with the Electronic Transactions (Victoria) Act 2000. Clause 594 establishes rules relating to service of documents on the Authority for the purposes of the Bill, the Accident Compensation Act 1985, the Workers Compensation Act 1958 or regulations under the Bill. Clause 594(1) sets out how any notice, summons, writ or other process and any return, application, notice, statement or form may be served on the Authority. Section 594(2) provides that section 594 is in addition to, and not in derogation of, any other provisions of this Bill, or specific legislation that deals with service of documents. This clause re-enacts section 247 of the Accident Compensation Act 1985, and makes clear that the provision is in addition to and not in derogation of other legislation which deals with service of documents. For instance, it is intended service may be effected by email if it is in accordance with the Electronic Transactions (Victoria) Act 2000. 290

 


 

Clause 595 requires that the Authority's staff, appointees and authorised persons to produce a document or divulge information in specified circumstances to the persons and bodies identified in the provision, including a court, a Conciliation Officer, a Medical Panel or VCAT. Schedule 8 sets out a list of persons or bodies to who documents may be produced or information communicated or divulged under this provision. Subclause (3) prohibits information gained in the course of employment, appointment or authorisation to act on behalf of the Authority, being divulged unless it is necessary to perform official duties or to exercise powers and functions as an authorised person, or for a purpose specified in subclause (2), such as court proceedings. The provisions impose special requirements in relation to certain requests for information from a special commission (within the meaning of the Evidence (Commissions) Act 1982) including that such requests must be reported to each House of the Parliament. This clause re-enacts section 243 of the Accident Compensation Act 1985. Clause 596 enables an employer who is liable through the negligence of a premium adviser to pay a default penalty or late payment penalty under the Bill to recover the amount of the penalty from the adviser. A premium adviser is defined to include an accountant or financial adviser. The provision makes the premium adviser liable to pay the employer the amount of the penalty and allows the employer to 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 Bill to pay the penalty. This clause re-enacts section 248BA of the Accident Compensation Act 1985. Clause 597 establishes 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 this Bill, the Accident Compensation Act 1985 or the Workers Compensation Act 1958 if the giving the information or doing the other thing would tend to incriminate the person. However, subsection (2) provides that the 291

 


 

protection does not apply to the production of a document that the person is required to produce under the legislation. This clause re-enacts section 248D of the Accident Compensation Act 1985. Clause 598 expressly preserves legal professional privilege and client legal privilege despite anything in this Bill, the Accident Compensation Act 1985 or the Workers Compensation Act 1958. This clause re-enacts section 248E of the Accident Compensation Act 1985. Clause 599 provides for the refund of certain amounts to the Authority, employer or self-insurer where a person is convicted or found guilty of an offence under this Bill, the Accident Compensation Act 1985, the Workers Compensation Act 1958 or an offence under the Crimes Act 1958 in connection with a claim for compensation. Clause 599(1) establishes that any payments made by the Authority, employer or self-insurer to a person as a result of the commission of such an offence may be recovered as a debt or set-off from the person together with an additional amount equal to half the amount of the payments, together with interest on those amounts. Clause 599(2) establishes that where a court convicts or finds a person guilty of such an offence it may also make an order for the person to pay the Authority, employer or a self-insurer the same amounts referred to in clause 599(1). This clause re-enacts section 249A of the Accident Compensation Act 1985. Clause 600 provides that conduct engaged in on behalf of a body corporate to be taken to be engaged in by the body corporate for the purposes of this Bill or the Accident Compensation Act 1985. This provision is intended to be consistent with section 143 of the Occupational Health and Safety Act 2004 and the definition of "officer" is consistent with the Corporations Act. This clause re-enacts section 250A of the Accident Compensation Act 1985 with changes to ensure the meaning of officer is consistent with the COAG principles in relation to model directors liability provisions. 292

 


 

Clause 601 provides that if a body corporate commits an offence against specified provisions in subclause (2), an officer of the body corporate also commits the offence if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate. The specified offences include the failure to keep a register of injuries in accordance with clause 17. Subclause (3) specifies matters that a court may have regard to in determining whether an officer failed to take exercise due diligence. Subclause (4) confirms that defences that an officer may rely on if charged with an offence. This clause re-enacts section 250AA of the Accident Compensation Act 1985 with changes to ensure that the provision aligns with the COAG director's liability principles. Clause 602 establishes rules relating to proceedings against the Crown in relation to this Bill, the Accident Compensation Act 1985 or the Workers Compensation Act 1958 or the regulations. The provisions relate to the determination of the relevant responsible agency of the Crown to be specified as the accused, and the entitlement of such an agency to act in proceedings. This clause re-enacts section 250B of the Accident Compensation Act 1985. Clause 603 enables proceedings for an offence against this Bill, the Accident Compensation Act 1985, the Workers Compensation Act 1958 or the regulations to continue or be instituted against successors to public bodies. The provision defines "public bodies" to include-- a body corporate representing the Crown; or a State owned enterprise or reorganising body (within the meaning of the State Owned Enterprises Act 1992); or a Council (within the meaning of the Local Government Act 1989); or a public entity (within the meaning of the Public Administration Act 2004); or This clause re-enacts section 250C of the Accident Compensation Act 1985. 293

 


 

Clause 604 allows the Authority to accept enforceable undertakings as an alternative to prosecution of certain offences under a relevant provision of this Bill, the Accident Compensation Act 1985 or the Workers Compensation Act 1958. The provisions are also intended to apply to certain provisions relating to premium. The Authority may not prosecute an offence against the person who gave the undertaking in relation to an alleged contravention the subject of a written undertaking. If the Authority considers the person who gave the undertaking has breached any of its terms, it is able to apply to the Magistrates' Court for an order that the person must comply with the undertaking, must take specified action to comply with the undertaking, or any other order it considers appropriate. This clause re-enacts section 251 of the Accident Compensation Act 1985. Clause 605 empowers a court to make an adverse publicity order if the court convicts or finds a person guilty of an offence against this Bill, the Accident Compensation Act 1985, the Workers Compensation Act 1958, or the regulations. The adverse publicity order may be made 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 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. The provisions also establish a process for the Authority to seek to take the actions specified in the adverse publicity order in some circumstances where the offender fails to take the actions or fails to provide evidence of taking the actions. In these circumstances, the expense of the Authority in taking action is a debt due by the offender to the Authority. 294

 


 

Clause 605(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. Section 605(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. This clause re-enacts section 251A of the Accident Compensation Act 1985. Division 10--Prosecutions Clause 606 provides that proceedings for an offence against the return to work provisions in Part 4 may, with the authority of the DPP, be instituted at any time after the offence is committed. This clause re-enacts section 252(4A) of the Accident Compensation Act 1985. Clause 607 establishes a procedure for a person to request the Authority to bring a prosecution in relation to the return to work provisions where the person considers the occurrence of an act, matter or thing may constitute a return to work offence and no prosecution has been brought within six months of that occurrence. The provisions require the Authority 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. The provisions also establish that where the Authority advises the person that a prosecution will not be brought, the Authority must refer the matter to the DPP if the person requests the Authority to do so. The DPP must then consider the matter and provide written advice to the Authority. 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 DPP, the Authority must give the person written reasons for its decision. Clause 607(7) provides that no proceedings may be brought in respect of a decision by the Authority to bring or not bring a prosecution. This provision is intended to ensure there is no merits review or judicial review of such a decision because the 295

 


 

provision allows a specific process for independent review by the DPP. This clause re-enacts section 252AA of the Accident Compensation Act 1985. Clause 608 establishes procedures for prosecuting an offence against this Bill, the Accident Compensation Act 1985, the Workers Compensation Act 1958 or the Crimes Act 1958 in connection with a claim for compensation. Clause 608(5) provides that proceedings for certain offences specified in the provision may be instituted within 3 years after the alleged offence occurred, despite any law to the contrary. Clause 608(6) requires the Authority to make guidelines in accordance with clause 612 for or with respect to the prosecution of offences. Clause 612 requires the Authority to publish the guidelines in the Government Gazette or on a Government internet website. This clause re-enacts section 252 of the Accident Compensation Act 1985 with an express requirement that guidelines must be published on a Government website, which is in accordance with current practice. Division 11--Guidelines and directions Division 11 of Part 13 contains procedural provisions in relation to Ministerial directions and guidelines, and guidelines made by the Authority. Clause 609 establishes rules applying to directions given by the Minister. Various other provisions throughout the Bill which confer specific power on the Minister to make directions in relation to different matters refer back to the general requirements in section 609. These include directions under clause 118 specifying a procedure for an employer and worker to apply to attempt to resolve an issue about a worker's return to work (where there is no relevant agreed procedure). The provision empowers the Minister to make directions to specify fees, and to specify any other matter or thing required or permitted by this Bill to be specified or necessary to be specified to give effect to this Bill. 296

 


 

The provision requires that Ministerial directions under the Bill must be published in the Government Gazette and on a Government Internet website, must not relate to a specific person, may be of general or limited application, and may differ according to differences in time, place or circumstance. Clause 609(2) confirms that a person to whom a direction is given by the Minister must comply with the direction. Clause 609(3) and (4) sets out rules relating to amendments or revocation of directions given by the Minister. This clause re-enacts section 253AA of the Accident Compensation Act 1985. Clause 610 provides that the Minister's power to give, amend or revoke directions under the return to work provisions in Part 4 of this Bill are subject to disallowance by the Parliament. The provisions also require copies of every such direction or amendment or revocation to be laid before both Houses of Parliament after notice is published in the Government Gazette. This clause re-enacts section 214A of the Accident Compensation Act 1985. Clause 611 sets rules applying to guidelines made by the Minister under the Bill. Various provisions throughout this Bill which confer specific powers on the Minister to make guidelines in relation to different matters refer back to the general requirements in clause 611. These include clause 23, in relation to the manner and form in which a claim for compensation may be given, served or lodged by a worker, and clause 528 for guidelines relating to the carrying out of functions and the exercise of powers by, the Senior Conciliation Officer. The provisions require guidelines made by the Minister to be published in the Government Gazette and on a Government internet website. The provisions also establish rules relating to amendments or revocation of guidelines given by the Minister. This clause re-enacts section 253AB of the Accident Compensation Act 1985. Clause 612 sets out rules applying to the making of guidelines by the Authority under this Bill. This provision is relevant to clauses 72(6), which enables an employer to pay an adjusted premium by reference to guidelines made by the Authority in 297

 


 

accordance with this clause. Clause 608 also requires prosecutorial guidelines to be made by the Authority in accordance with this provision. The provision establishes that specific guidelines made by the Authority must be published in the Government Gazette and on a Government Internet website, and sets out rules relating to amending or revocation of guidelines. The requirements of section 612 will only apply where expressly set out in this Bill. Provisions in the Bill which provide for the making of guidelines, forms and advisory practice notes but which do not reference clause 612 are not subject to the requirements in it, including the requirement to be published in the Government Gazette. This clause re-enacts section 252B of the Accident Compensation Act 1985, with a modification to require publication in the Government Gazette. Division 12--The Authority and the IBAC Division 12 of Part 13 contains provisions relevant to the Independent Broad- Based Anti-corruption Commission (IBAC) which was established under the Independent Broad-Based Anti-corruption Commission Act 2011. The key objects of the IBAC include assisting in the prevention of corrupt conduct, assist in improving the capacity of the public sector to prevent corrupt conduct and providing for the investigation and exposure of corrupt conduct. The provisions in Division 12 of the Bill provide for consultation between the Authority and IBAC in relation to certain matters related to corrupt conduct. Clause 613 requires the Chief Executive of the Authority to notify the IBAC of any matter which appears to involve corrupt conduct of which the Authority becomes aware in the performance of its statutory functions or duties or the exercise of its statutory powers. Section 613 does not apply to corrupt conduct of the IBAC or IBAC personnel, or to matters referred to the Authority by the IBAC under section 49C of the IBAC Act. This clause re-enacts section 236C of the Accident Compensation Act 1985. 298

 


 

Clause 614 allows the Authority's Chief Executive to consult with the IBAC for the purposes of deciding whether to make a notification to the IBAC. This assists the Chief Executive obtain guidance and advice from IBAC about conduct that may be corrupt and which may require the Chief Executive to notify IBAC about. Consultation will inform the Chief Executive about future conduct that may be corrupt. This clause re-enacts section 236D of the Accident Compensation Act 1985. Clause 615 allows the Authority's Chief Executive to provide or disclose to the IBAC information obtained in the performance of the Authority's statutory functions or duties, or the exercise of its statutory powers, if the Chief Executive considers that-- the information is relevant to the performance of the IBAC's functions or duties or the exercise of its powers; and it is otherwise appropriate to bring the information to the IBAC's attention, having regard to the nature of the information. The provision or disclosure of information under new section 615 is subject to any overriding statutory restrictions on provision or disclosure. This provision helps provide transparency about the circumstances under which the Chief Executive may consider providing information to IBAC. This clause re-enacts section 236E of the Accident Compensation Act 1985. Clause 616 requires that once the Authority is or becomes aware of an IBAC investigation, the Authority must take all reasonable steps not to prejudice that investigation in the performance of its statutory functions or duties or the exercise of its statutory powers. The Authority may consult the IBAC for this purpose. This provision helps ensure that the Authority assists IBAC in the investigation and exposure of corrupt conduct. This clause re-enacts section 236F of the Accident Compensation Act 1985. 299

 


 

Division 13--Section 85 provisions The clauses in Division 13 expressly alter or vary the Supreme Court's jurisdiction in respect of specific provisions in the Bill. Section 85 of the Constitution Act 1975 provides that the Supreme Court has inherent jurisdiction in relation to Victoria and is the superior Court of Victoria with unlimited jurisdiction. In accordance with the requirement in section 85(5)(a) of the Constitution Act 1975, the clauses in this Division state the intention to alter or vary section 85 of that Act. Clause 617 states that it is the intention to limit the jurisdiction of the Supreme Court in relation to sections 264, 265 and 266 of the Bill. These provisions confer exclusive jurisdiction on the County Court and bestow a like jurisdiction on the Magistrates' Court in respect of most questions or matters under the Bill, the Accident Compensation Act 1985 or the Workers Compensation Act 1958. The limitation ensures a more efficient and cost effective dispute resolution system is utilised for proceedings relating to the Victorian workers compensation scheme. Clause 618 confirms the intention of clauses 6(3), 78(3), 80(4), 83(8), 208, 227(1), 243(10), 313(4), 313(5), 354, 355, 356, 369(9), 426, 456, 458, 463(4), 577(7), 604(4) and 607(7) to alter vary section 85 of the Constitution Act 1975. Clause 6(3) provides that proceedings may not be brought against the Authority in relation to guidance by the Authority on how to make a claim under the Workers Compensation Act 1958. This is consistent with how claims under the Workers Compensation Act 1958 are dealt with. Clause 78(3) states that no proceedings may be brought against the Authority in respect of any question or matter arising out of an employer request for written reasons for a decision to accept or reject a claim for compensation. The limitation only applies to a request for reasons and not the decision itself. The employer still has a right of review in connection with a decision to accept or reject a claim on specified grounds. Clause 80(4) and clause 83(8) prevent employers bringing proceedings in respect of decisions by the Authority at certain stages of the process set out in clauses 79 to 90, which allows employers to seek an internal review of a decision by WorkSafe to accept liability for a claim for compensation. The limitation 300

 


 

in these clauses reduces disputation and provides a degree of finality and certainty for the parties impacted by the decision, in particular, the injured worker. An employer who objects within time in accordance with clause 85 still has access to the Supreme Court. Clause 208 states that no appeal lies to any court or tribunal from a determination or opinion as to the degree of permanent impairment resulting from an injury, or as to whether a worker has an injury which is a total loss injury. The limitations ensure that there is finality in the medical opinion of the Panels. This recognises that medical experts are best equipped to ultimately determine medical questions and avoids unnecessary costs of disputes involving medical determinations. Clause 227(1) limits proceedings against workers for recovery of any costs which the Authority, self-insurer or employer is liable to pay in connection with services under Division 6 of Part 13. The restriction on proceedings protects workers from actions or proceedings that should be initiated against the Authority, employer or self-insurer, whichever is liable for the payments. Clause 243(1) provides that no proceedings may be brought in respect of any decision relating to the discretion of the Authority to make provisional payments of certain death benefits where it appears a person may be entitled to compensation as a result of the death of a worker. The limitation is appropriate as the nature of a decision under those provisions is preliminary and it is not ultimately determinative of an entitlement. Allowing review of a preliminary decision under clause 243 would be inefficient and result in unnecessary legal costs. Clause 313(4) requires a Medical Panel opinion to be adopted and applied by any court and accepted as final and conclusive. The provision is intended to prevent any court reviewing the merits of a Medical Panel opinion, which is appropriate to ensure finality of decisions, and because the Panel is an expert body. This does not prevent judicial review of an opinion in the case of jurisdictional error. Clause 313(5) provides that no proceedings may be brought in relation to a Medical Panel opinion on the basis that the statement of reasons given by the Medical Panel is inadequate 301

 


 

and therefore give rise to an error of law. The provision does not limit the power of the Supreme Court to hear applications for judicial review in relation to reasons that are so inadequate as to amount to a jurisdictional error on their face. Clauses 354, 355 and 356 provide that legal costs in certain common law matters must only be recovered in accordance with the relevant legal costs order made under those provisions by the Governor in Council, which limits the courts usual jurisdiction with regard to costs. The relevant legal costs order sets out specific processes for recovery of legal costs in common law matters and incentives to encourage parties to minimise the incurring of unnecessary legal costs. The limitation is necessary because these arrangements can only be effective if the usual jurisdiction of courts with regard to costs is limited. Clause 369(9) provides that no proceedings may be brought to challenge the exercise of a discretion by the Authority to issue proceedings for the recovery of compensation costs against negligent third parties or to disperse costs that are recovered including the excess that an employer must pay to a worker who makes a claim for compensation. The limitation is appropriate because the employer's liability to pay an excess is limited to a worker's income for one week and it would be counterproductive to allow for disputation for such a small sum of money. Clause 426 states that no proceedings may be brought in respect of any assessment of tail claims liability relating to the non- WorkCover employer provisions. The limitation ensures that an incentive remains for an employer to effectively manage its tail liabilities incurred prior to its exit from Victorian insurance arrangements. If the employer could dispute the assessment of its liability incurred prior to exiting then it may decrease the incentive to effectively manage these claims. Clause 456 sets out a process under which an employer may apply for a refund of part or all of its WorkCover premium. This is a mandatory process that must be completed before an employer can bring proceedings in any court. Court jurisdiction is only restricted in a limited way, as an employer which is dissatisfied with the outcome of their application can bring proceedings for a refund. 302

 


 

Clause 458 provides that the right of an employer to bring proceedings in connection with their WorkCover premium notice is governed exclusively by Part 10 of the Bill. Division 6 of Part 10 of the Bill provides for a mandatory internal review process for an employer which wishes to dispute its premium notice. An employer which is dissatisfied with the outcome of its application for review, can bring proceedings in connection with that notice at the Victorian Civil and Administrative Tribunal or the Supreme Court. The provision of a mandatory internal review process allows for improved timeliness and efficiency in the resolution of disputes regarding premium notices. Clause 463 confers discretion on the Authority to allow an employer to make an application for review of the premium notice outside of the required 60 day period. Clause 463(4) provides that no proceedings may be brought in connection with the exercise of this discretion by the Authority. The limitation on the right to bring proceedings is reasonable because the discretion would operate to prevent an employer from being unfairly excluded from making an application for internal review because of circumstances beyond their control. Clauses 577(7) and 607(7) limit proceedings to challenge a decision by the Authority to bring or not to bring a prosecution in relation to unlawful discriminatory conduct or a breach of return to work obligations under the Bill. Clauses 577 and 607 already provide an appropriate mechanism whereby the exercise of the Authority's discretion may be subject to scrutiny by the Director of Public Prosecutions. Clause 604(4) provides that no proceedings may be brought against the exercise of the Authority's discretion to accept a written undertaking in connection with an alleged contravention of the Bill as an alternative to criminal prosecution. The limitation ensures the Authority's prosecutorial discretion cannot be unfairly infringed upon. Clause 619 defines proceedings for the purpose of the clauses referenced in clause 618. The definition is broad and includes proceedings seeking any order under the Administrative Law Act 1978 and any action or proceeding. 303

 


 

Division 14--Regulations Clause 620 empowers the Governor in Council to make regulations with respect to-- prescribing forms; prescribing fees; any matter or thing required or permitted by this Bill, the Accident Compensation Act 1985 or the Workers Compensation Act 1958 to be prescribed or necessary to be prescribed to give effect to such legislation. Section 620(2) establishes broad scope for the making of regulations that-- may be of general or of specifically limited application; may differ according to differences in time, place or circumstance; may confer a discretionary authority, or impose a duty, on a specified person or body or class of persons or body; may apply, adopt or incorporate matters in existing documents, codes, standards, rules, specifications or methods; may apply, adopt or incorporate any matter contained in the provisions of any Act, statutory rule or other instrument of the Commonwealth; may impose a penalty not exceeding 10 penalty units for contravention of the regulations. Subclause (3) provides that sections 6 and 7 of the Subordinate Legislation Act 1994, which prescribe consultation and certification requirements for the making of statutory rules, do not apply to the first set of regulations made under the clause. This is because regulations first made under the clause will contain the same subject matter as regulations made under the Accident Compensation Act 1985 in 2012, which were made in accordance with the Subordinate Legislation Act 1994. 304

 


 

Clause 621 empowers the Governor in Council to make regulations containing provisions of a savings or transitional nature as a result of the enactment of this Bill. Such regulations may be required to address matters arising from the transition to this Bill from the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act 1993. Regulations under this section may be made with respect to the operation, application and effect of a number of matters including any matter or thing relating to the continued operation of the following-- the Accident Compensation Regulations 2012 as in force immediately before 1 July 2014; any statutory instrument under the Accident Compensation Act 1985 and in force before 1 July 2014 which is specified in the regulations; the premiums order made under the Accident Compensation (WorkCover Insurance) Act 1993 before 1 July 2014. Subclause (2) confirms that such regulations may be retrospective to 1 July 2014. Subclause (5) confirms that sections 6 and 7 of the Subordinate Legislation Act 1994 which prescribe consultation and certification requirements for the making of statutory rules do not apply to regulations made under the clause. Subclause (6) confirms that the provision expires on 1 July 2016 and so ensures that after the 2 year transition period, the instruments will be subject to the full requirements of the Subordinate Legislation Act 1994. The clause seeks to balance the interests of efficiency and transparency in relation to subordinate instruments made under the Bill. Division 15--Savings and transitional Clause 622 provides that provisions in the Table to this clause repealed from the Accident Compensation Act 1985 (specified in column 2) are to be taken to be re-enacted by the corresponding Bill clause (specified in column 3). 305

 


 

This provision is intended to operate in accordance with provisions in the Interpretation of Legislation Act 1984 in relation to repeal and re-enactment. In particular, section 14(2) of the Interpretation of Legislation Act 1984 preserves any rights, liabilities and obligations created by a provision before its repeal. Section 16 of that Act provides that where an Act or a provision of an Act is repealed and re-enacted (with or without modification) then, unless the contrary intention expressly appears, any reference in any Act or subordinate instrument to the repealed Act or provision shall be construed as a reference to the re-enacted Act or provision; and insofar as any subordinate instrument made or other thing done under the repealed Act or provision, or having effect as if so made or done, could have been made or done under the re-enacted Act or provision, it shall have effect as if made or done under the re-enacted Act or provision. Subclause (2) provides that for the purposes of the Bill, a reference in any document to the provision of the Accident Compensation Act 1985 is taken to be a reference to the equivalent provision in the Bill. This ensures that documents do not need to be re-created for the purposes of the Bill. For example, item 205 of the Table ensures that a statutory appointment made under section 23 of the Accident Compensation Act 1985 will be taken to be an appointment made under clause 501, in accordance with the Bill. In the case of an outcome certificate issued by a Conciliation Officer under section 57(3) of the Accident Compensation Act 1985, item 112 confirms that an outcome certificate will be an outcome certificate under the clause 296 of the Bill. Subclause (3) makes clear that the Table is not an exhaustive list of all relevant provisions re-enacted by the Bill. Clause 623 repeals the Accident Compensation (WorkCover Insurance) Act 1993 and confirms the status of all persons, things and circumstances appointed or created by or under that Act. Subclause (2) provides that, unless expressly provided for in the Act or in regulations made under clause 621, all persons, things and circumstances appointed or created by or under the Accident Compensation (WorkCover Insurance) Act 1993 immediately before 1 July continue to have the same status, operation and effect as if they would have in respect of any 306

 


 

premium paid or payable before 1 July 2014, as if the Accident Compensation (WorkCover Insurance) Act 1993 had not been repealed. Subclause (3) provides that any action, matter or thing relating to any premium, including proceedings, may be continued under the ACWI Accident Compensation (WorkCover Insurance) Act 1993, despite its repeal. As is the case with sections being repealed from the Accident Compensation Act 1985, subclause (5) confirms that the repeal of the Accident Compensation (WorkCover Insurance) Act 1993 does not affect the operation of the Interpretation of Legislation Act 1984. The Interpretation of Legislation Act 1984 includes provisions regarding the effect of repealed provisions. In particular, section 14(2) of the Interpretation of Legislation Act 1984 operates to preserve any rights, liabilities and obligations created by a provision before its repeal. PART 14--AMENDMENTS AND REPEALS Part 14 provides for substantive and consequential amendments and repeals to other Victorian legislation as a result of the introduction of the Bill. Division 1--Accident Compensation Act 1985 Division 1 of Part 14 makes amendment and repeals to the Accident Compensation Act 1985 so that it will continue but in a significantly reduced form, containing essentially just entitlements and benefits. Amendments and repeals in Division 1 reflect that the Bill provides for a single gateway for claims. This means that the Bill will apply to any claim made on or after 1 July 2014 for injuries sustained whether before and after that date. This includes claims that would currently be made under the Accident Compensation Act 1985. It is not intended that the single claims gateway apply to claims under sections 98 and 98A of the Accident Compensation Act 1985, which will continue to be lodged under the Accident Compensation Act 1985. Once a claim is made, entitlement and benefits will be determined by the relevant provisions in the relevant Act, according to date of injury. This approach is intended to ensure that there is no change to entitlement or benefits. The Bill is intended to apply to all disputes arising on or from 1 July 2014, irrespective of the date of injury. Accordingly, the current Accident Compensation Act 1985 dispute provisions will be repealed. 307

 


 

Return to work provisions are to be contained in the Bill only and will apply to all injuries under the Bill and to injuries under the Accident Compensation Act 1985 where return to work procedures are in process. Common law provisions will be contained in both the Accident Compensation Act 1985 and the Bill and which applies will depend on date of injury. The exception to this is in the case of gradual process injuries which are covered by this Bill for injuries originating from 1999. Clause 624 repeals and amends a number of sections in Part I of the Accident Compensation Act 1985. Subclause 624(1) amends the objectives of the Accident Compensation Act 1985 to ensure consistency with changes in the Bill. Subclause 624 (2) amends the application provisions in section 4 of the Accident Compensation Act 1985 to reflect the introduction of the Bill and, in particular, to make clear that the Accident Compensation Act 1985 does not apply injuries sustained on or after 1 July 2014. Subclause 624 (3) introduces a new subsection into section 4 of the Accident Compensation Act 1985 to specify that, on or after 1 July 2014, claims will no longer be lodged in accordance with the Accident Compensation Act 1985 but will rather be lodged under the Bill. An exception is made for claims under sections 98 and 98A of the Accident Compensation Act 1985, which will be lodged under that Act on or after 1 July 2014. The new subsection ensures that the section 4 of the Accident Compensation Act 1985 aligns with the operation of clause 6 of this Bill which provides for a single gateway for all claims, and so ensures that the claims lodgement process is as straightforward as possible for workers and employers. Claims will be lodged under the Bill and then the Authority or self-insurer will be responsible for determining which Act governs benefits in relation to that claim. For more information on the single claims gateway, see the explanatory memorandum notes in relation to clause 6 of this Bill. Subclause 624(3) also introduces a new subsection into section 4(3) of the Accident Compensation Act 1985 to require that the Accident Compensation Act 1985 be read and construed with the Bill, in order to reflect the intention that they operate together in relation to the one scheme. This is further provided for in subclause (6) which provides that the definitions 308

 


 

in the Bill apply to the Accident Compensation Act 1985 unless clearly inconsistent. Subclause 624(4) amends section 4AA of the Accident Compensation Act 1985 to ensure that compensation for the death of a worker is not payable under the Accident Compensation Act 1985 if compensation has been paid under either the Workers Compensation Act 1958 or this Bill. Clause 625 repeals all definitions contained in section 5 of the Accident Compensation Act 1985 and provides that the definitions contained in this Bill will also apply to the Accident Compensation Act 1985. Definitions of the terms appointed day, first entitlement period, proclaimed day, second entitlement period and weekly payment are substituted into section 5 of the Accident Compensation Act 1985 because these terms all have a particular meaning in the context of the Accident Compensation Act 1985. The clause also provides that Schedule 1 of the Bill has effect as if enacted in the Accident Compensation Act 1985. This ensures that the provisions in this schedule apply for the purposes of the Accident Compensation Act 1985. The definition of the term proclaimed day is updated to reflect the change in application of the Accident Compensation Act 1985 as a result of the introduction of the Bill. Clause 626 amends a number of provisions in Part 1 of the Accident Compensation Act 1985 to reflect changes which have been made to the equivalent provisions in this Bill. Clause 626(1) amends the definition of medical services under section 5(1) of the Accident Compensation Act 1985 so that the provision of orthoses may be a compensable medical service under that Act. This change is to provide for simplified and consistent treatment of prostheses and orthoses, which are often fitted by the same clinician; and reflects the definition of medical services in clause 3 of this Bill. The amendment will commence on the day after the date of Royal Assent. Clause 626(2) to (6) amends section 5A, 5B and 5AE of the Accident Compensation Act 1985 to ensure that a worker who has taken leave at half pay prior to being injured (for example, long service leave at half pay) will have their pre-injury average weekly earnings reflect their normal pay. 309

 


 

The amendment ensures that the pre-injury average weekly earnings amount is not unfairly affected because the worker was on a reduced salary during this period of leave; and reflects clauses 153, 155 and 158 of this Bill. The amendments will commence on the day after the date of Royal Assent. Clause 626(7) amends the definition of relevant period in section 8(5) of the Accident Compensation Act 1985 to clarify that the definition applies in relation to services provided on or after 1 July 2010. This amendment is deemed to have come into operation on 1 July 2010. The change reflects current practice. Clause 626(8) amends section 68 of the Accident Compensation Act 1985 to confirm when the timeframe for a Medical Panel to form its opinion begins and also to confirm that the provision of inadequate reasons by a medical panel does not in and of itself provide a basis for legal challenge. This reflects clause 313 of this Bill. The amendments will commence on the day after the date of Royal Assent. Clause 627 repeals sections 5C, 5D, 5E, Division 3 (Workers, employers and contractors) of Part I, Parts II (The Victorian WorkCover Authority) and III (Dispute Resolution) from the Accident Compensation Act 1985, as they are no longer required, as the substance for which they provide will be covered in full by the Bill. The substance of sections 5C, 5D, 5E and Division 3 of Part I of the Accident Compensation Act 1985 is provided for by Schedule 1 of this Bill. The substance of Part II of the Accident Compensation Act 1985 is provided for by Part 11 of this Bill, which continues the Authority established under the Accident Compensation Act 1985 and provides for its administration of the Bill, the Accident Compensation Act 1985 and the Workers Compensation Act 1958 on and after 1 July 2014. The substance of Part III of the Accident Compensation Act 1985 is provided for by part 6 of this Bill, which covers disputes in relation to claims under the Accident Compensation Act 1985 on and after 1 July 2014. 310

 


 

Clause 628 repeals and amends a number of sections in Part IV of the Accident Compensation Act 1985. Subclause 628(1) amends section 88(2) of the Accident Compensation Act 1985 to correct a cross referencing error in that section. The amendment will be deemed to have commenced on 5 April 2010. Subclause 628(2)(a) amends the definition of deductible amount in section 91E of the Accident Compensation Act to clarify that directional payments are excluded from the definition of deductible amount which is also relevant to the calculation of the worker's weekly. The change reflects current practice and is intended to ensure that the amounts cannot be deducted twice; and reflects the definition of deductible amount in clause 152 of this Bill. The amendment commences on the day after the date of Royal Assent. Subclause 628(2)(b) and (c) inserts a new definition of week in section 91E of the Accident Compensation Act 1985 to reflect the equivalent clause 152 of the Bill. The new definition is intended to clarify that, for the purposes of calculating weekly payments, where a worker receives even one day of payment in a particular week, they are regarded as having exhausted that whole week of their entitlement. The insertion of the definition of week in the Accident Compensation Act 1985 confirms current practise and is intended to avoid any confusion about how a "week" is to be calculated. The amendment commences on the day after the date of Royal Assent. Subclause 628(3) amends section 92A(6) of the Accident Compensation Act 1986 to ensure that where a lump sum is divided between multiple dependant partners, the total amount provided will always equal the maximum lump sum amount. The change confirms the legislative intention and current practice. The amendment commences on the day after the date of Royal Assent. An equivalent change is introduced in clause 236 of this Bill. Subclause 628(4) amends section 92A(8B) of the Accident Compensation Act 1985 to ensure that partially dependant partners of deceased workers are entitled to share in lump sum compensation, regardless of whether or not there are other fully dependent partners and reflects clause 237 of this Bill. 311

 


 

The amendment commences on the day after the date of Royal Assent. Clause 629 amends section 92B of the Accident Compensation Act 1985 to confirm that the total amount of weekly pensions payable to the dependent partner or dependent partners and a dependent child or children of a worker must not exceed twice the State average weekly earnings; which reflects current practice and clause 241 in this Bill. The amendment commences on the day after the date of Royal Assent. Clause 630 Clauses 630(1) and (2) amends sections 92D, 93A, 93B and 93C of the Accident Compensation Act 1985 to clarify that weekly payments must be reduced by the amount of a worker's current weekly earnings from employment regardless of whether that employment is considered "suitable" or "unsuitable" and regardless of whether a worker has a "current work capacity" or "no current work capacity". This change is intended to ensure that a worker does not receive a double payment in relation to these earnings in the circumstances described; which reflects the legislative intention and clauses 161, 162 and 163 of this Bill. The amendments commence on the day after the date of Royal Assent. Subclause 630(3) amends the definition of the term supplemental pension limit in section 96(7) Accident Compensation Act 1985 to address a cross referencing anomaly. The amendment is deemed to have commenced on 1 July 2010. Subclause 630(4) amends section 98C(8) to clarify that if a worker suffers an injury which would entitle the worker to compensation for non-economic loss of more than one kind, that the maximum amount in compensation for non-economic loss that the worker can receive under section 98C(8) and clause 630(4) is $555 350. This reflects current practice and clause 217 of this Bill. The amendment commences on the day after the date of Royal Assent. Subclause 630(5) amends section 98DA of the Accident Compensation Act 1985 to ensure that workers are not entitled to double payments under this Bill and the Accident Compensation Act 1985 or the Workers Compensation Act 1958. 312

 


 

Subclause 630(6) amends the definition of supported accommodation in section 99AAA(1) of the Accident Compensation Act 1985 to ensure that the section references the Supported Accommodation Services (Private Proprietors) Act 2010. The amendment aligns the definition with clause 223 of this Bill and the definition in the Transport Accident Act 1986. The amendment is deemed to have commenced on 1 July 2012. Subclause 630(7) amends section 99 of the Accident Compensation Act 1985 to correct cross referencing errors in that section. Subclause 630(8) amends section 99 of the Accident Compensation Act 1985 to specify the amount which a worker must contribute towards their supported accommodation expenses. The specified amount is equal to the current amount specified in an Order of Governor in Council and will be indexed annually, although that indexation may be declared by the Governor in Council not to apply. The change reflects clause 229 of this Bill and will align with the Transport Accident Act 1986. Subclause 630(9) amends section 99AD of the Accident Compensation Act 1985 to correct cross referencing errors in that section. Subclause 630(10) amends the table to section 100B to ensure that the amount specified in section 93CDA(1)(d) is indexed, as intended. The amendment commences on the day after the date of Royal Assent. Subclause 630(11) amends the table to section 100C to ensure that, after indexation is applied, the compensation amounts payable under section 92A(6) equal the lump sum payable, as intended. The amendment commences on the day after the date of Royal Assent. Clause 631 substitutes sections 100 to 100C in the Accident Compensation Act 1985 with provisions that replicate clauses 542, 543 and 544 in Division 1 of Part 13 of the Bill, in order to accommodate the changes made by the Australian Bureau of Statistics to the reporting frequency of average weekly earnings. The substitutions are also made to streamline and simplify the indexation provisions in the Accident 313

 


 

Compensation Act 1985. The amendments commence on the day after the date of Royal Assent. Clause 632 updates the amounts listed in sections in Part III and IV of the Accident Compensation Act 1985 which relate to benefits payable to worker or their dependants, which are current as at 1 July 2011, so that the amounts that appear in the Bill will be current as at 1 July 2013. The amendments commence on the day after the date of Royal Assent. Clause 633 updates the amounts listed in sections in Part IV and Schedule 1 of the Accident Compensation Act 1985, which are current as at 1 July 2011, so that the amounts that appear in the Bill are current as at 1 July 2013. The amendments commence on the day after the date of Royal Assent. Clause 634 clause 634(1) repeals sections 101 and 102 of the Accident Compensation Act 1985. These sections are no longer required, as their substance is provided for by clauses 16 to 18 of the Bill. Clause 634(2) inserts a new subsection (1A) into section 103 of the Accident Compensation Act 1985 which provides that section 103 applies to claims for compensation under section 98 or 98A in respect of an injury that arose before 12 November 1997. These claims will continue to be lodged under the Accident Compensation Act 1985 on and after 1 July 2014. Clause 634(3) repeals specified subsections of section 103 of the Accident Compensation Act 1985 which are redundant because this Bill introduces a single gateway for new claims for compensation lodged on or after 1 July 2014, except claims for compensation under section 98 or 98A of the Accident Compensation Act 1985. For more information about the single claims gateway, see the explanatory memorandum notes in relation to clause 6 of this Bill. Clause 634(4) substitutes section 103(7) of the Accident Compensation Act 1985 with a subclause that requires a claim for compensation under section 98A to be lodged under section 103 or 106 at the same time as a claim for compensation under section 98 is lodged. 314

 


 

Clause 635 Clause 635(1)(a) amends section 104B of the Accident Compensation Act 1985 to reflect that a claim for compensation under section 98C is to be lodged under this Bill and in accordance with section 104B. The amendment ensures that the Accident Compensation Act 1985 aligns with the operation of clause 6 of this Bill which provides for a single claims gateway. For more information about the single claims gateway, see the explanatory memorandum notes in relation to clause 6 of this Bill. Clause 635(1)(b) and (c) amends section 104B of the Accident Compensation Act 1985 to ensure that a claim may be suspended where the Authority or a self-insurer has insufficient "other information", for example, where the Authority or a self- insurer does not have sufficient factual information to determine the date of injury under section 98C of the Accident Compensation Act 1985. This reflects clause 200 of this Bill. Clause 635(2) repeals sections 105, 106(3), (4) and (5), 107A, 108, 109, 109AA, 111 and 112 of the Accident Compensation Act 1985. Section 105 relates to medical certificates and is no longer required as its substance is provided for by clause 25 of this Bill. Sections 106(3), (4) and (5), 108 and 109 relate to the lodgement of claims and are no longer required, as all future claims will be lodged under this Bill on or after 1 July 2014. This ensures that the Accident Compensation Act 1985 aligns with the operation of clause 6 of this Bill which provides for the single claims gateway. For more information about the single claims gateway, see the explanatory memorandum notes in relation to clause 6 of this Bill. Section 109AA relates to an employer's ability to request reasons for a decision on a claim and is no longer required as its substance is provided for under clause 78 of this Bill. Section 111 and 112 relate to certificates of capacity and medical certificates and are no longer required as their substance is provided for by clauses 167 and 27 of this Bill. Clause 635(3) and (4) amends section 114(2)(c) of the Accident Compensation Act 1985 to ensure that the Authority or a self- insurer is not required to provide notice where a worker becomes entitled to an increase in weekly payments as a result of the worker ceasing to receive a non-pecuniary benefit from an employer (such as a work car or mobile phone). The requirement to provide notice unnecessarily delays the 315

 


 

increasing of weekly payments. This reflects clause 183 of this Bill. Clause 635(5) amends section 114D(2) of the Accident Compensation Act 1985 to clarify that a self-insurer will be subject to a penalty if they fail to comply with their requirements under clause 178(1) and (3). This clause also clarifies that a self-insurer is required to pay arrears of weekly payments within 7 days of a determination or the acceptance of a claim. Penalties apply if a self-insurer fails to comply with this requirement. It is intended that the penalties will encourage compliance with this clause. This reflects clause 179 of this Bill. Clause 635(6) repeals subsections 114D(7) and (8) of the Accident Compensation Act 1985. These subsections are redundant as they relate to making weekly payments via post which is no longer required. Clause 635(7) repeals sections 114H to 114S of the Accident Compensation Act 1985. These sections relate to employer objections and are no longer required as their substance is provided for by clauses 69 and 79 to 89 of this Bill. Clause 635(8) amends section 118(b) to correct a cross- referencing anomaly. Clause 636 amends section 123B of the Accident Compensation Act 1985 by substituting new wording to more expressly prohibit the recovery of costs in respect of assisting a person to make a claim. Clause 637 Subclause 637(1) amends section 124 of the Accident Compensation Act 1985 to make clear that Division 4 of that Act will continue to apply in relation to injuries which occur before 1 July 2014 and that the equivalent provisions in the Bill will apply to injuries that occur on or after that date. Subclause 637(2) updates a cross-reference in section 125(1)(a) to reflect that the referenced section is being repealed from the Accident Compensation Act 1985 and the operation of that section will be covered by the equivalent provision in this Bill. 316

 


 

Subclause 637(3) amends section 125A(3B) of the Accident Compensation Act 1985 to update the reference to section 114N(1)(b) of the Accident Compensation Act 1985 to the equivalent clause 84(1)(b) in the Bill. Subclause 637(4) amends section 125A(8) of the Accident Compensation Act 1985 to correct a cross-referencing error. This amendment will commence on the day after the date of Royal Assent. Clause 638 Subclause 638(1), (2) and (3) amend the heading of Division 8A of Part IV and sections 134AA and 134AB(1) and (2) to make clear that Division 8A of Part IV applies in relation to injuries before 1 July 2014, and the equivalent provisions in this Bill will apply to injuries on or after that date. Subclause 638(4) amends section 134ABA(a)(i) of the Accident Compensation Act 1985 to correct a cross- referencing error. Subclause 638(5) amends section 134AB(38)(e) of the Accident Compensation Act 1985 to correct cross-referencing errors. Subclause 638(6) repeals sections 135B and 135D of the Accident Compensation Act 1985. Section 135B has been repealed as the legal proceedings to which these sections apply can no longer be commenced due to limitations of actions laws. Section 135D is repealed, as court rules provide for the same content relating to the structuring of settlement. Subclause 638(7) amends section 137(5B)(a) of the Accident Compensation Act 1985 to correct a cross referencing error. Subclause 638(8) amends section 138B(3) of the Accident Compensation Act 1985 to correct cross referencing errors. Clause 639 repeals Part V, VIA, VIIA and VIIB of the Accident Compensation Act 1985. Part V--Self-Insurers, which is no longer required as Part 8 of this Bill is intended to govern self- insurers on and after 1 July 2014. Part VIA--Non-WorkCover Employers of the Accident Compensation Act 1985 is no longer required as Part 9 of this Bill is intended to govern non-WorkCover employers on and after 1 July 2014. 317

 


 

Part VIIA--Prohibited Conduct and Touting for Claims of the Accident Compensation Act 1985 is no longer required as Division 5 of Part 13 will govern prohibited conduct and touting for claims on and after 1 July 2014. Part VIIB--Return to Work of the Accident Compensation Act 1985 is no longer required as Part 4 of this Bill will govern Return to Work in relation to all claims on and after 1 July 2014. Clause 640 Clause 640(1) repeals Part VIII--General of the Accident Compensation Act 1985, except for section 252H, 252I and 252P. The repealed provisions in Part VIII are no longer required as the equivalent provisions in Part 13 of this Bill will apply on and after 1 July 2014. Clause 640(2) amends section 252P to expressly provide that it is the intention of section 68(5), as inserted by section 626(8) of the Workplace Injury Rehabilitation and Compensation Act 2013, to alter or vary section 85 of the Constitution Act 1975. By virtue of clause 2(2), the provision is to take effect from the date the Bill receives Royal Assent, before Part III of the Accident Compensation Act 1985 (which includes section 68) is repealed by clause 627(3). The limitation on jurisdiction operates the same as the limitation in clause 313(5), (which is specified in clause 618). The provision does not limit the power of the Supreme Court to hear applications for judicial review in relation to reasons that are so inadequate as to amount to a jurisdictional error on their face. Clause 641 amends section 313 of the Accident Compensation Act 1985, which is a transitional provision relating to earlier amendments to section 93CD of the Accident Compensation Act 1985. The changes made by virtue of the substituted section 313 are to correct a number of technical anomalies relating to the application of section 93CD. The amendment is deemed to have commenced on 5 April 2010. Clause 642 inserts a new transitional section 352A into the Accident Compensation Act 1985. The new section provides that a number of instruments of delegations, which were issued by the Authority to three self-insurers in 2011, apply retrospectively to periods before the date on which they were issued. The instruments of delegation provide that each of the self- insurers can assume liability for the tail claims of another self- 318

 


 

insurer which they have acquired. Each of these self-insurers had already assumed liability and responsibility for the tail claims of the other self-insurer, prior to the delegations had being issued. This clause retrospectively validates their early assumption of responsibility of the tail claims, by providing that the instruments of delegation have retrospective application. The amendment commences on the day after the date of Royal Assent. Clause 643 inserts a new transitional section 368A into the Accident Compensation Act 1985. The new section is intended to clarify any uncertainty about the application of section 91(3AAA) of the Accident Compensation Act, by making clear that it applies in relation to a claim made on or after 1 November 2010, being the date on which the provision was inserted into the Accident Compensation Act. The amendment is deemed to have commenced on 1 November 2010. Clause 644 inserts a new transitional section 391 into the Accident Compensation Act 1985. The new section provides that all persons, things and circumstances appointed or created by or under the Accident Compensation Act 1985 immediately prior to 1 July 2014 will be continued under and apply in relation to this Bill. Clause 645 repeals transitional provisions relevant only to the operation of a number of provisions in the Accident Compensation Act 1985 which are no longer required. Clause 646 repeals Schedules 4, 5, and 6 of the Accident Compensation Act 1985, which are no longer required as their substance is provided for by the equivalent schedules dealing with fees payable by prospective self-insurers and the disclosure under the secrecy provisions have been included in this Bill. Division 2--Accident Compensation (WorkCover Insurance) Act 1993 Clause 647 amends section 87 of the Accident Compensation (WorkCover Insurance) Act 1993 to clarify that the provisions in Part 2A of the Accident Compensation (WorkCover Insurance) Act will apply to the review of premium in respect of the 2010/2011, 2011/2012, 2012/2013 and 2013/2014 premium periods whether the notice that is the 319

 


 

subject of review is issued before 1 July 2014 or after 1 July 2014. This provision is intended to ensure that the Accident Compensation (WorkCover Insurance) Act 1993 reflects the intent prior to its repeal. The amendment is deemed to have commenced on 1 July 2010. Division 3--Amendment of other Acts Clause 648 Subclause 648(1) amends section 1A of the Workers Compensation Act 1985 to ensure that Act is read and construed together with this Bill. Subclause 648(2) amends the definitions of Commission and Fund in section 3(1) of the Accident Compensation Act 1985 to reflect the introduction of this Bill. Subclause 648(3) amends the definition of average weekly earnings in section 9(5) of the Workers Compensation Act 1958 to accommodate the changes made by the Australian Bureau of Statistics to the reporting frequency of average weekly earnings. Clause 649 provides for consequential amendments, the detail of which is set out in Schedule 9 of the Bill, to a number of other Acts which refer to and operate in relation to the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act. These Acts require updating to ensure that they can operate in relation to this Bill as well as those Acts. References to the Accident Compensation (WorkCover Insurance) Act 1993 are deleted, to reflect that the Accident Compensation (WorkCover Insurance) Act 1993 is to be repealed. Similarly, some references to the Accident Compensation Act 1985 are deleted, where the relevant sections of that Act are to be repealed. Division 4--Repeal of Part 14 and Schedule 9 Clause 650 provides for Part 14 and Schedule 9 of this Bill to be repealed on 1 July 2015. The provisions in Part 14 and Schedule 9 will no longer be required as, on 1 July 2014, they will have achieved their intent of making amendments to the Accident Compensation Act 1985, the Accident Compensation (WorkCover Insurance) Act 1993 and various other legislation. The repeal of these provisions will also reduce the 320

 


 

length of the Bill. The repeal of Part 14 and Schedule 9 does not affect the continuing operation of the amendments made by that Part or Schedule (see section 15(1) of the Interpretation of Legislation Act 1984). SCHEDULE 1--FURTHER INTERPRETATIVE PROVISIONS PART 1--PERSONS DEEMED TO BE WORKERS OR EMPLOYERS Part 1 of Schedule 1 contains provisions relating to workers, employers and contractors and the deeming of an employment relationship for certain types of work arrangements (including work experience students, religious workers, sharefarmers, timber contractors, Crown employees, secretaries of cooperative societies, jockeys, outworkers, municipal councillors and taxi drivers). These provisions are fundamental for the purposes of various provisions throughout the Bill. The deeming of an employment relationship will enable a deemed worker who sustains an injury in the course of deemed employment to claim compensation from a deemed employer under the Bill. In addition, a deemed employer under the Bill will be liable to pay premium under the Bill calculated on the basis of deemed remuneration that is paid or payable to a deemed worker. The definitions of employer, worker and remuneration in the legislation make it clear that such terms apply to a deemed employment relationship. This is because the definitions of employer and worker in section 3 of the Bill expressly include a person who is deemed to be an employer or worker under the Bill. Similarly, the definition of remuneration expressly includes any amount that is deemed to be remuneration under the Bill. The provisions re-enact Division 3 of Part I of the Accident Compensation Act 1985 which will be repealed. The schedule also incorporates relevant provisions relating to premium from the Accident Compensation (WorkCover Insurance) Act 1993, which will also be repealed. Clause 625 will insert provision in the Accident Compensation Act 1985 to confirm that the clauses in Schedule 1 of the Bill have the same effect in the Accident Compensation Act 1985 as if enacted in that Act. Clause 1 deems certain students, apprentices and participants in a declared training program to be workers for the purposes of the Bill. Clause 1 re-enacts section 5F of the Accident Compensation Act 1985. 321

 


 

Clause 2 is relevant to the provisions in clause 1 which deem certain students participating in a declared training program to be workers for the purposes of the Bill. The provision empowers the Governor in Council to declare a training program provided by a person or body specified in the order to be a "declared training program" for the purpose of clause 1 above. Where such an order is made then a participant in the program may be a deemed worker under clause 1 and the provider of the program will be a deemed employer. In these circumstances, the remuneration that is deemed to be paid or payable by the deemed employer (provider) to the deemed worker (participant) with respect to a declared training program is the payment or allowance specified in the relevant Governor in Council order. Under the definition of remuneration in Part 2 of Schedule 1 of the Bill, remuneration includes deemed remuneration. This means that the calculation of the deemed employer's premium will be affected by the amount of any deemed remuneration. Clause 2 re-enacts section 5G of the Accident Compensation Act 1985. Clause 3 deems persons attending certain employment programs to be workers for the purposes of the Bill. The provision is intended to apply to an employment program that is provided or arranged by the Authority for an injured worker, generally in circumstances where the worker is unable to be placed in some other form of return to work or occupational rehabilitation program. It has the effect of deeming that worker to be employed by the Authority in the event that the worker is re-injured while participating in the program. In this case the Authority (rather than the worker's original employer) will be liable to pay compensation in respect of any further injury claim. The provision ensures the worker will be covered under the scheme in such circumstances. Clause 3 re-enacts section 5H of the Accident Compensation Act 1985. 322

 


 

Clause 4 deems the secretary of a co-operative society to be a worker of the society in certain circumstances. A person will not be a deemed worker under this provision where he or she is entitled to receive payment of expenses only, payment of expenses and a sum of $400 or less, or no payment whatsoever. This provision is intended to exclude from the scheme secretaries (usually volunteers) of small, community-type co-operatives, to whom the premium liabilities would present a prohibitive cost. However, it is intended that secretaries of larger co-operative societies will be covered by the scheme. Clause 4 re-enacts section 5I of the Accident Compensation Act 1985. Clause 5 provides that a door to door seller or a party plan on-seller will be deemed to be a worker of the person who engaged him or her (deemed employer) if the Authority determines that the contract or arrangement between the parties was entered into with an intention of directly or indirectly avoiding or evading premium payment. A similar provision exists in section 32(2)(d) of the Payroll Tax Act 2007. It is intended that any guidance material issued by the State Revenue Office (SRO) on this provision, also guide the interpretation and application of clause 5 of Part 1, Schedule 1 of the Bill. Clause 5 re-enacts section 5J of the Accident Compensation Act 1985. Clause 6 deems a timber contractor to be the worker of the person who engaged him or her (deemed employer) under the timber contract, provided the timber contractor personally performs some of the work required under the contract. The provisions apply to a timber contractor who is an "individual", meaning a natural person, as defined in section 38 of the Interpretation of Legislation Act 1984. This means that clause 6 may apply to a timber contractor who is operating as a sole trader or in a partnership. It will not apply to an incorporated timber contractor; a timber contractor who subcontracts the timber contract in its entirety; or where no part 323

 


 

of the work is personally performed by the timber contractor or another person in partnership with the contractor. Clause 6 re-enacts section 6 of the Accident Compensation Act 1985. Clause 7 is directed to the taxi industry. Where a driver has the use of a vehicle pursuant to a bailment contract, and uses that vehicle to carry passengers for a fee, clause 7 will operate to deem the driver to be a worker of the other party to the contract (or the "operator"). Thus, the operator is the deemed employer and the corresponding deemed remuneration is the amount received by the driver for carrying passengers, less the amount that the driver is obliged to pay to the operator under the bailment agreement. Clause 7 re-enacts section 7 of the Accident Compensation Act 1985. Clause 8 deems an individual owner-driver of a vehicle that carry goods for reward in specified circumstances. An incorporated owner driver cannot, by clause 9, be a deemed worker under the Bill. Clause 8 will not apply if the Authority has determined that the owner-driver is genuinely carrying on an independent trade or business providing services to a principal. The Authority may issue guidelines to guide such determinations. These guidelines must be published and made generally available. Where an employment relationship is deemed under clause 8 then the deemed remuneration will be the amount paid or payable by the principal to the owner-driver for providing transport services, less any applicable percentage (reflecting the non-labour component of the contract) prescribed in the guidelines. The general intention of clause 8 is to reflect in the Bill the Premium Public Ruling on Owner Drivers issued on 31 March 1998 (PPR) by the Authority. This has guided the application of the contractor provisions to owner-drivers for several years, resulting in accepted practice and policy. Clause 8 re-enacts section 7A of the Accident Compensation Act 1985. 324

 


 

Clauses 9, 10 and 11 are "contractor provisions", which are intended to look beyond the business and corporate structures of a contractual arrangement in order to determine the true working nature of the relationship. If this is akin to an employment relationship, then the Bill will treat the relationship as such, by deeming the relevant party to have worker or employer status. These clauses re-enact sections 8, 9 and 10 of the Accident Compensation Act 1985. Clause 9 deems an employment relationship to exist for certain categories of worker in certain types of contractual arrangements between a natural person contractor (irrespective of whether the contractor is using a business structure of a partnership, body corporate or registered business) and a principal for the provision of services to the principal. Clause 9(1) establishes a three-limbed test that an employment relationship will be deemed to exist where-- the labour component of the contract is more than the non-labour (materials/equipment) component; and the natural person (contractor) personally performs 80% or more of work for that principal; and the contractor does 80% or more of his or her overall work for one person (principal). Principal and contractor "entities" Clause 9(1)(a) describes the principal and the contractor as an "entity". As this term is not defined in the Bill, the definition in section 38 of the Interpretation of Legislation Act 1984 (IL Act) will apply. This means that "entity" in the context of subclause (1) is intended to include all possible business structures and could include a natural person operating as a sole trader; a body corporate; a partnership; a registered or unregistered business; and a trust entity. Principal to be acting "in the course of and for the purposes of a trade or business" Clause 9(1)(a) also clarifies that clause 9 will only apply to a principal who enters into a contractual arrangement with a contractor, "in the course of, and for the purposes of, carrying 325

 


 

on a trade or business carried on by the principal". The contractor provisions will not apply to the engagement of contractors by non-commercial parties, such as private householders. For example, clause 9 is not intended to apply to the situation where a private home owner engages a building contractor to carry out renovations to his or her dwelling. It is recognised that in most cases, it would be inappropriate for the Bill to deem the home owner to be the employer of the builder. Contractual arrangement Clause 9(1)(a) refers to the principal and the contractor entering into a "contractual arrangement". This means a single contract between the parties, or a series of contracts in the "relevant period", which is defined in clause 9(6). Ancillary services test Clause 9(1)(b) sets out the first limb of the clause 9 employment test, which requires that for a deemed employment relationship to exist the labour component of the contractual arrangement must not be ancillary to any non-labour component. That is, the labour component of the contract must be significant and not merely ancillary to the provision of goods. There is a mirror to the ancillary services test in payroll tax legislation in section 32(2)(a) of the Payroll Tax Act 2007 and rulings issued by the Commissioner for State Revenue from time to time guide the interpretation and application of this provision. It is noted that Revenue Ruling PT-033 issued in August 2008 provided that, "the provision of labour under a contract will be considered to be ancillary to the provision of materials or equipment where the cost to the designated person of the provision of the materials or equipment exceeds 50 per cent of the total contract amount". This indicates the labour component must be 50 per cent or more of a contract to satisfy the ancillary services test for an employment relationship to exist. Personal performance of work test Clause 9(1)(c) sets out the second limb of the clause 9 employment test, which requires that the natural person who is in effect "behind" the contracting entity personally provide 80 per cent or more of the services to the principal, pursuant to the contractual arrangement. For the purposes of this limb of 326

 


 

the test, the 80 per cent will usually be assessed against the contract or market value of the services. However, in some cases, it may be more appropriate to make the assessment against the time taken to provide the services (for example, where the individual is a high fee earner). The provisions differentiate between the "individual" (that is the natural person who in reality provides the services or actually performs the work for the principal), and the "contractor" (being the entity that the individual may operate through). The provision is intended to look behind the corporate veil of the contractor entity, to examine the working relationship between the person who in reality performs most of the work for the principal pursuant to the contractual arrangement. The provision addresses the various business structures that the provision is intended to capture, including sole traders, unregistered businesses, partnerships, bodies corporate and trusts. For example, the provision addresses the situation where the contractor entity is a body corporate, and the "individual" or the natural person who performs the work, is a member, director, shareholder or employee. This may apply where a family company is established with the person who in reality performs most of the work being its "working" director and shareholder. His or her spouse is a second director and shareholder. They may also be employees of the family company. For another example, the provision also addresses the situation where the contractor entity is a trust, and the "individual" or the natural person who performs the work is a person who may benefit under the trust. It is intended that the words, "person who may benefit under the trust" be interpreted broadly to include direct and indirect beneficiaries. For example, the provision is intended to apply to a beneficiary under a trust (and as a subset, a unit holder of a unit trust), as well as an object of a discretionary trust (i.e. a person who may benefit from the exercise of a discretion by the trustee). One principal test Clause 9(1)(d) sets out the third and final limb of the clause 9 employment test. This reflects the principle that where a contractor is effectively "tied to" one principal, and does all or most of his or her work for one principal, then the true working relationship underpinning the contractual arrangement tends to an employment relationship. 327

 


 

This limb of the employment test will be satisfied if the gross income earned from that arrangement comprises 80 per cent or more of the contractor entity's total gross income from the provision of services of the same kind in the relevant period. Authority reserve power to determine inapplicability of clause 9(1) There may be rare instances where the individual, and his or her contractor entity, "passes" the objective clause 9(1) tests, but there are other factors that very strongly indicate that the individual is operating (though the contractor entity) a genuinely independent trade or business, and in such circumstances, it would be unfair or inappropriate for the individual to be treated as the deemed worker of the principal (deemed employer). The intention of clause 9(2) is to reserve for the Authority the power to determine, in such cases, that clause 9 will not apply to deem an employment relationship to exist between the parties. The Authority's decisions will be assisted by guidelines issued pursuant to the power given in subclause 9(3). Deemed remuneration Clause 9(5) provides that where the three-limbed test set out in clause 9(1) is satisfied the effect is that the individual is the deemed worker of the principal, and the principal is the deemed employer of the individual. In this case, subclause (5) will operate to deem the total amount paid or payable by the principal for services provided under the contractual arrangement to be "remuneration", including for the purposes of premium. A feature of the concept of remuneration in the legislation is that it reflects the amount that is paid or payable by an employer to a worker for work performed by the latter. That is, it should not reflect any payment for materials, goods or equipment that the worker may also provide in conjunction with his or her labour. This is particularly relevant in contractor situations which are deemed to give rise to an employment relationship. Thus, clause 9(5) provides for a reduction to be made for the "applicable prescribed percentage". Section 3 includes a definition of applicable prescribed percentage to mean the percentages prescribed in the Regulations. It is intended that such Regulations will prescribe, for certain classes of contracts, 328

 


 

a set percentage that is to be deducted from the total contract amount. This set percentage reflects the typical non labour component of such contracts. The amount remaining after the deduction will be the "remuneration" for the purposes of the calculating the employer's premium liability. It is envisaged that there may be other contracts which involve a non labour component, but which subclause (5)(c)(ii) thus also allows, in such cases, the amount paid or payable for the non labour component to be excluded from deemed remuneration. Definitions Clause 9(6) contains definitions of principal, relevant period and services, for the purposes of clause 9. The definition of relevant period has been changed from the definition in section 8(5) of the Accident Compensation Act 1985 to include new subparagraph (b)(ii) in order to clarify the operation of the definition where a contractual arrangement relates to two consecutive financial years. Where there are competing relevant periods or if the worker is captured by more than one relevant period, the period that gives the worker the greatest benefit will be used. The definition continues the previous intent that the relevant period should be 12 months. This is considered to be an adequate length of time over which the true working relationship between the contracting parties can be ascertained. Services is defined to include results (whether goods or services) of work performed. This provision is intended to prevent contracting parties from artificially characterising a work arrangement to avoid the deeming provision. For example, where an IT contractor would be a deemed worker of a principal by application of the clause 9 tests, the principal will not be able to avoid the provision by arguing that the contract is one for a result (e.g. production of a software package) not for a contract of employment. Clause 9 re-enacts section 8 of the Accident Compensation Act 1985. 329

 


 

Clause 10 establishes the amount that is remuneration, and therefore subject to premium, in contractual arrangements to which clause 9 applies. The objective of clause 10 is to eliminate the potential for the Authority to collect two amounts of premium in respect of the same work where the contractor is the deemed worker of the principal. In some circumstances, the principal (as deemed employer) will be liable to hold an insurance policy and to pay premium for scheme coverage in respect of the deemed worker (the "individual" related to the contractor entity, who essentially does the work under the contractual arrangement). The amount of rateable remuneration will be the amount paid or payable by the principal to the contractor for the services provided by the contractor under the arrangement. The contractor, if it employs staff, may also be liable to hold an insurance policy and to pay premium for scheme coverage in respect of its employees. Its rateable remuneration will include any wages paid by the contractor to the individual, as its employee and to other employees, who performs the work required pursuant to the contractual arrangement with the principal. Clause 10 stipulates that the amount of remuneration for the purposes of the Bill is the amount paid or payable by the principal to the contractor for services provided by the contractor. This means that the principal will be liable to pay premium in respect of this amount. Furthermore, any amount paid or payable by the contractor to its employee/s is not remuneration for the purposes of the legislation. Therefore, the contractor will not be liable to pay premium in respect of this amount. The provision also confirms that the amount paid or payable by the principal to the contractor for any non labour component (i.e. for materials and equipment) is excluded from being "remuneration", by the reference to the deduction, from the total contract amount, of the "applicable prescribed percentage", or if there is none, "that part of the total amount not attributable to the provision of services". Clause 10 re-enacts section 9 of the Accident Compensation Act 1985. 330

 


 

Clause 11 addresses claims issues arising in the circumstances addressed by clause 10 where there is potential for the Authority to collect a double premium in contractual arrangements. On the claims side, such arrangements provide two claims avenues. That is, where the deemed worker of the principal (deemed employer) is also an employee of the contractor (that contractor being either a body corporate or a trust entity), and is injured in the course of doing the principal's work under the contractual arrangement, then the worker will technically be entitled to make a claim against either the principal or the contractor. However, the intention is that the injured worker should make any claim against the principal, consistent with the requirement in clause 10 that the principal pay the relevant premium. It is intended that the worker will be precluded from bringing a claim against the contractor. Clause 11 re-enacts section 10 of the Accident Compensation Act 1985. Clause 12 deems an employment relationship to exist between a share farmer and a land owner if under a contract between the parties-- the share farmer is entitled to receive, as consideration, a share of income derived from the land (the share must be less than one-third, and may be in cash, kind or a combination of both); or if the contract is in writing, the contract provides that the owner is liable to pay workers compensation to the share farmer if the share farmer is injured in the course of carrying out the contracted work. The provision also states what will comprise the deemed remuneration, where an employment relationship is deemed to exist between the parties by virtue of this provision. This will only include monetary amounts paid to the share farmer by the deemed employer and not any "in kind" amounts. Clause 12(3) provides that for the purposes of the Bill, a share farmer engaged by an owner of land is not a worker unless subclause (1) applies. This means that the other deeming provisions cannot apply to a share farmer. 331

 


 

Clause 12 re-enacts section 11 of the Accident Compensation Act 1985. Clause 13 deems persons of a specified class to be workers of a religious body or organisation. The classes may be specified in an order made by the Governor in Council (and published in the Government Gazette) at the request of a religious body or organisation. The provision will only operate to deem a person to be a worker if he or she would not otherwise be a worker under the Bill. Clause 13 re-enacts section 12 of the Accident Compensation Act. Clause 14 deems certain persons employed in the public sector to be workers for the purposes of the Bill. The relevant persons include-- a responsible Minister of the Crown; a member of the Legislative Council or the Legislative Assembly; an office holder as a member of a public entity or of the governing body of a public entity; a person who holds a judicial office; a non-judicial member of VCAT; a public official within the meaning of the Public Administration Act 2004; a bail justice; a member of police personnel within the meaning of the Police Regulation Act 1958. Clause 14 re-enacts section 14 of the Accident Compensation Act 1985. Clause 15 deems a local government councillor to be a worker of the relevant council if the councillor is injured while carrying out duties of office. The provision adopts the definitions of Council and Councillor in section 3(1) of the Local Government Act 1989. 332

 


 

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 office. Therefore, the provision confers power on the Minister to make guidelines outlining the circumstances in which a Councillor is considered to be carrying out duties as a councillor to provide greater certainty. If a councillor is deemed to be the worker of his or her council, then the amount that is deemed to be remuneration is the allowance that is paid or payable to the councillor by the council for carrying out councillor duties and functions. Note that councillor allowances generally vary between councils, and are determined by the Governor in Council under section 74B of the Local Government Act 1989. Clause 15 re-enacts section 14AA of the Accident Compensation Act 1985. Clause 16 establishes a deemed employment relationship for certain persons who customarily attend a given place to be selected for work, usually work for that day, by an employer. This practice has historically been used frequently in the shipping and agricultural (mostly the fruit-picking) industries, but has now been largely replaced by modern recruitment arrangements. However, for those instances where an employer uses a "place of pick up" arrangement to recruit staff, clause 16 provides that a person who customarily attends that place for the purpose of being selected for work, will, if injured while in attendance at that place, be deemed to be a worker of the employer who last employed that person in customary employment. The provision also clarifies the amount that will be deemed to be remuneration, where the provision deems an arrangement to give rise to an employment relationship. Clause 16 re-enacts section 15 of the Accident Compensation Act 1985. 333

 


 

Clause 17 establishes the general rule that sporting contestants are ineligible to receive compensation under this Bill. A person engaged by an employer to participate as a contestant in a sporting or athletic activity will not be covered by the Bill where the person is injured while participating as a contestant in such an activity, or is engaged in training or preparation with a view to so participating, or is travelling between a place of residence and the place at which the person is so engaged. This is because sporting contestants will generally be covered by other insurance arrangements. There are specific exceptions to this general rule and clause 17 deems certain persons engaged to participate as a rider in a horse race conducted as part of a race meeting held under the Rules of Racing Victoria to be workers employed by Racing Victoria for the purposes of the Bill. Such a person will only be a deemed worker while participating as such a rider or doing such riding work as specified in the provisions. Essentially, the specific exception is for jockeys in races organised by Racing Victoria to be protected by the scheme if injured while racing. Clause 17 re-enacts section 16 of the Accident Compensation Act 1985. Section 16(5) of that Act is not contained in the Bill, because the liability of The Victoria Racing Club to pay compensation was transferred to Racing Victoria in 2001. Clause 18 extends the coverage conferred by clauses 17(2) and (3) in relation to jockeys in races organised by Racing Victoria to reflect that not all horse races held in Victoria are organised by Racing Victoria. Other racing bodies (for example the Victorian Arabian Jockey Club) may organise horse, pony or harness races as part of a mixed sports gathering, as defined in the Racing Act 1958, provided they have the required permission under section 19(1) of that Act. Clause 18 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. Amounts paid or payable to the rider or driver for so participating are deemed to be remuneration for the purposes of the Bill. Clause 18 re-enacts section 16A of the Accident Compensation Act 1985. 334

 


 

The definition of worker in section 3 of the Bill makes it clear that an outworker who is employed under a contract of service will be a worker for the purposes of the Bill. However, in practice, 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 definition of worker in section 3 will not apply to the outworker. Further, the contractor deeming provisions are complex and may be difficult to apply to outworkers. Clause 19 operates to deem outworkers who work individually, or within a family entity or business, to be a worker of the person who has engaged the outworker or the outworker family entity or business, as the case may be. Clause 19 adopts the meanings of outwork and outworker in section 3 of the Outworkers (Improved Protection) Act 2003. The provisions include reference to a family business to clarify that the deeming provision in subclause (1) can apply to an outworker operating as an unregistered sole trader business. Subclauses (3), (4) and (6) elaborate on the meaning of family entity for the purposes of the outworker provisions. 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 as defined have a "controlling interest" as per the meaning given in subclause (3). Clause 19(7) establishes that where an employment relationship is deemed in an outwork arrangement, the amount that is deemed to be remuneration, and therefore subject to premium, is the amount paid by the principal to the outworker, or to the outworker family entity or business for the performance of the outwork. Clause 19 re-enacts section 17 of the Accident Compensation Act 1985. 335

 


 

PART 2--REMUNERATION Part 2 of Schedule 1 deals with remuneration for the purposes of calculating premium payable by an employer. The provisions are intended to provide transparency about how premium is calculated and clarity for employers as to what amounts are included in the calculation of premium payable by employers. Clause 20 defines what remuneration is for the purposes of the Bill, in particular Part 10, and confirms how amounts that are paid or payable by an employer to a worker are to be treated for the purposes of calculating the amount of premium payable by an employer. Item 20 also confirms what amounts paid or payable by an employer to a worker are not to be treated as remuneration. Clause 20 operates the same as section 3AA of the Accident Compensation (WorkCover Insurance) Act 1993. Clause 21 provides a formula to be used when calculating what proportion of a fringe benefit paid or payable by an employer to a worker is to be treated as remuneration for the purposes of calculating the amount of premium that is payable by employers. Clause 21 re-enacts section 5C of the Accident Compensation Act 1985. Clause 22 assists in confirming and calculating what amount of a motor vehicle allowance paid or payable to a worker is to be treated as remuneration for the purposes of calculating the amount of premium that is payable by employers. Clause 22 re-enacts section 5D of the Accident Compensation Act 1985. Clause 23 assists in confirming and calculating what amount of an accommodation allowance paid or payable to a worker is to be treated as remuneration. The treatment of an amount of accommodation allowance paid to a worker is relevant to help determine what proportion is considered remuneration for the purposes of calculating the amount of premium that is payable by employers. Clause 23 re-enacts section 5E of the Accident Compensation Act 1985. 336

 


 

Clause 24 defines rateable remuneration as an amount paid or payable by an employer on or after 1 July 2014 to a worker for services performed on or after 1 July 2014. Item 24 confirms how amounts of remuneration paid as fringe benefit or superannuation benefits are to be treated. Item 24 also confirms that remuneration paid or payable as superannuation benefits for services provided prior to 1 July 2014 is not to be treated as rateable remuneration under the Bill. Clause 24 re-enacts section 8 of the Accident Compensation (WorkCover Insurance) Act 1993. PART 3--OTHER INTERPRETATIVE PROVISIONS Clause 25 provides for factors that must be taken into account for the purposes of determining whether a worker's employment was a "significant contributing factor" to an injury. The provision is important and relevant to the fundamental legal tests for entitlement in Part 2 of the Bill. The word "significant" has been included in these provisions to emphasise that the relevant injury will only be compensable if there is a considerable and strong connection between work and the injury. The factors to be considered in determining whether employment was a significant contributing factor include the nature and duration of a worker's employment, the worker's activities outside the workplace, and the probable development of the injury occurring if that employment had not taken place. For example, where a worker suffers a heart attack, stroke, disease or a worsening type injury at work, the worker's employment will also need to be a considerable cause of that injury for compensation to be paid. The definition re-enacts the equivalent definition in section 5(1B) of the Accident Compensation Act 1985. Clause 26 specifies the range of persons who come within the definition of member of a family. The definition re-enacts the equivalent definition in section 5 of the Accident Compensation Act 1985. It also re-enacts the interpretative provision, currently in section 5(3A), which states that a reference to certain types of workers has the same meaning as member of a worker's family. 337

 


 

Clause 27 defines superannuation benefit. It is relevant to the calculation of premium under Part 10 as it confirms that the determination of remuneration. The definition re-enacts the equivalent definition in section 3(1) of the Accident Compensation (WorkCover Insurance) Act 1993. SCHEDULE 2--PRE-INJURY AVERAGE WEEKLY EARNINGS Schedule 2 contains a Table that prescribes how the pre-injury average weekly earnings of a worker are to be calculated for the purpose of calculating benefits to which a worker may be entitled under the Bill. A worker's pre-injury average weekly earnings are calculated with reference to the class or category of a worker at the time of their injury. For example, if a worker is under the age of 21, then the worker's pre-injury average weekly earnings is calculated in the way outlined in column 3 of item 1 in the table in Schedule 2. Schedule 2 is intended to operate the same as Schedule 1A of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. SCHEDULE 3--MODIFICATION TO DEGREES OF IMPAIRMENT FOR THE PURPOSES OF DIVISION 5 OF PART 5 Schedule 3 contains a table which modifies a worker's impairment benefit rating for the purposes of Division 5 of Part 5. A worker's impairment benefit rating is relevant to the calculation of a worker's amount of non- economic loss in respect of a permanent impairment under clause 211(2) and for the purpose of Division 5 of Part 5. Schedule 3 is intended to operate the same as Schedule 2 of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. 338

 


 

SCHEDULE 4--NO DISADVANTAGE--COMPENSATION TABLE Schedule 4 contains a table which provides amounts of minimum compensation payable where a worker's injury is considered to be a total loss. The Schedule operates in conjunction with clause 221 and is intended to ensure that a worker is not disadvantaged according to the method by which they receive compensation. Clause 221 directs that where a worker has suffered a total loss injury and the amount of compensation calculated under that section is less than the amount provided for in Schedule 4, the worker is entitled to the higher amount. Clause 221(4) sets out the maximum amount payable where the worker suffers, on the same occasion, more than one of the injuries mentioned in Schedule 4. Schedule 4 is intended to operate the same as Schedule 3B in the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. SCHEDULE 5--TABLE TO BE USED TO DETERMINE SETTLEMENT AMOUNTS UNDER SECTION 246 Schedule 5 contains a table to determine settlement amounts under clause 246. The Schedule is intended to operate in conjunction with clause 246 to ensure that a settlement amount is approximately equivalent to the amount which a worker would have received if, instead of settling on an agreed amount, they had instead continued to receive weekly payments until the retirement age. Schedule 5 is intended to have the same operation as Schedule 1 of the Accident Compensation Act 1985, which will continue to apply in relation to injuries occurring before 1 July 2014. SCHEDULE 6--SELF-INSURERS--PRE-APPLICATION ELIGIBILITY FEE Item 1 of Schedule 6 specifies the pre-application eligibility fee payable by an employer which must accompany an application for approval to be a self- insurer under clause 375 of the Bill. The fee helps to cover the administrative costs incurred by the Authority in considering and determining the employer's application. 339

 


 

The pre-application eligibility fee must be varied in accordance with the formula provided in order to account for changes in the consumer provide index (CPI), as published by the Australian Bureau of Statistics. The formula elements reflect the language used by the Australian Bureau of Statistics. Provision for the variation of the fee ensures that the amount paid by employers to the Authority when seeking a determination under clause 375 continues to meet the costs incurred by the Authority in considering and responding to the employer's application. This provision operates the same as item 1 of Schedule 4 of the Accident Compensation Act 1985. SCHEDULE 7--APPLICATION FEE FOR APPROVAL AS SELF-INSURER An employer which makes an application to the Authority to be approved as a self-insurer under clause 376 is required to pay the application fee set out in item 1 of Schedule 7. The fee is intended to cover the costs of the Authority in considering and responding to the employer's application for approval to self-insure. The fee payable by an employer is the lesser of 0033 per cent of the assessed remuneration of the applicant employer or the fee limit in clause 3. This provision operates the same as Clause 1 of Schedule 5 of the Accident Compensation Act 1985. Item 2 of Schedule 7 provides a formula for determining the "assessment remuneration" of an employer for the purposes of varying the application fee set out in item 1 of Schedule 9 payable by an employer to the Authority when the employer applies for approval to be a self-insurer under clause 376. The formula takes into account remuneration paid by the employer in the most recent financial year and the number of months over which the remuneration was paid. If the employer or its subsidiaries do not pay remuneration in the most recent financial year, then the amount of relevant remuneration as estimated by the Authority under clause 377 is used. This is intended to result in a fee that is fair and referable to the employer's individual circumstances. This provision includes definitions of forthcoming year, preceding year and relevant remuneration. This provision operates the same as clause 2 of Schedule 5 in the Accident Compensation Act 1985. 340

 


 

Item 3 of Schedule 7 sets a limit to the application fee of an employer seeking approval to self-insure, which is to be varied annually by the formula in clause 3(2). The formula takes into account the average weekly total earnings of all employees in Victoria, as published by the Australian Bureau of Statistics. The formula elements reflect the language used by the Australian Bureau of Statistics and the frequency of reporting. This provision is intended to result in a fee that is fair and relates to the employer's individual circumstances; and to meet the costs incurred by the Authority in considering and responding to the employer's application. Item 3 operates the same as Item 3 of Schedule 5 of the Accident Compensation Act 1985. SCHEDULE 8--PERSONS TO WHOM DOCUMENT MAY BE PRODUCED OR INFORMATION COMMUNICATED OR DIVULGED Schedule 8 provides a list of persons to whom documents may be produced or information can be communicated in accordance with clause 412. Schedule 8 is intended to operate the same as Schedule 6 of the Accident Compensation Act 1985, but reflects changes to the names and number of Government Departments, of the Australian Bureau of Statistics, and to the National Board within the meaning of the Health Practitioner Regulation National Law. SCHEDULE 9--CONSEQUENTIAL AMENDMENTS Schedule 9 provides for consequential amendments to a number of other Acts which refer to and operate in relation to the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act 1993. The updates ensure that those Acts can operate as intended in relation to this Bill as well as those Acts. References to the Accident Compensation (WorkCover Insurance) Act 1993 are deleted, to reflect that the Accident Compensation (WorkCover Insurance) Act 1993 is to be repealed. Some references to the Accident Compensation Act 1985 are deleted, where the relevant sections of that Act are to be repealed. 341

 


 

 


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