Victorian Numbered Acts Victorian Numbered ActsAfter Part VIIA of the Accident Compensation Act 1985 insert —
The purpose of this Part is to provide—
(a) that employers, workers and other persons involved in the return to work process co-operate to ensure that workers successfully return to work;
(b) that employers are responsible for providing pre-injury employment or suitable employment to enable workers to return to work;
(c) that workers are responsible for participating in the return to work process consistently with their capacity for work;
(d) for workers to be represented, assisted and supported in the return to work process;
(e) for effective occupational rehabilitation for workers to facilitate their early and sustainable return to work.
(1) The obligations of employers are specified in Division 2.
(2) The obligations of workers are specified in Division 3.
Nothing in this Part limits or otherwise affects the operation of other provisions in this Act unless this Part specifically provides otherwise.
(1) In this Part—
"compliance code" means a code approved by the Minister under section 210;
"host" has the same meaning as it has in section 199(1)(a);
"inspector" means an officer or employee of the Authority who is appointed as an inspector under section 215 for the purposes of this Part;
"labour hire employer" has the same meaning as it has in section 199(1)(a);
"preceding policy period" means the policy period preceding the policy period in respect of which a premiums order made under section 15 of the Accident Compensation (WorkCover Insurance) Act 1993 is currently in force;
"pre-injury employment" means the employment of a worker in a position which is the same as or equivalent to the position in which the worker was employed before receiving the injury;
"rateable remuneration" has the same meaning as it has in section 3(1) of the Accident Compensation (WorkCover Insurance) Act 1993 ;
"representative", in relation to a worker, does not include a legal practitioner;
"Return to Work improvement notice" means a Return to Work improvement notice issued under section 224;
"serious injury" has the same meaning as it has in section 91E;
"treating health practitioner" means—
(a) a medical practitioner who has issued a medical certificate referred to in section 105;
(b) a medical practitioner, registered physiotherapist, registered chiropractor or registered osteopath who has issued a certificate of capacity referred to in section 111(2);
"workplace" means a place, whether or not in a building or structure—
(a) where a worker works;
(b) from where an employer conducts business;
(c) where records relating to the business of an employer are kept.
(2) In this Part a reference to a worker who has an incapacity for work, is a reference to a worker—
(a) who has no current work capacity; or
(b) who has a current work capacity; or
(c) who is a pre-12 November 1997 claimant and who has a serious injury within the meaning of section 91E.
(3) For the purposes of section 195 an employer knows or ought reasonably to have known of the worker's incapacity for work from the date of the commencement of the employment obligation period within the meaning of section 194(1).
(1) This Part does not apply to an employer of a worker who—
(a) at the time of the injury is a student at a school within the meaning of Part 5.4 of the Education and Training Reform Act 2006 ; and
(b) is employed under a work experience arrangement under that Part.
(2) The following classes of employers, to the extent indicated, are not required to comply with any obligation under this Part other than the obligation specified in section 194—
(a) employers (including owners corporations within the meaning of the Owners Corporations Act 2006 ) who employ domestic or similar workers otherwise than for the purposes of the employer's trade or business (but only to the extent that such workers are concerned);
(b) employers who hold owner-builders' permits under the Building Act 1993 (but only to the extent that the workers employed for the purposes of the work to which the permits relate are concerned);
(c) employers (being corporations) who only employ workers who are directors of the corporation;
(d) employers who only employ workers who are members of the employer's family;
(e) employers who only employ workers who only perform work while outside Victoria.
(1) In this section—
"employment obligation period" means the period of 52 weeks—
(a) beginning on—
(i) the date the employer receives from the worker a medical certificate issued in accordance with section 105(1); or
(ii) the date the employer receives a claim for compensation from the worker in the form of weekly payments; or
(iii) the date the employer is notified by the Authority that the worker has made a claim for compensation in the form of weekly payments; or
(iv) the date the employer is notified by the Authority that the worker has provided the Authority with a medical certificate issued in accordance with section 105(1)—
whichever is earliest—
(b) being an aggregate period beginning on that earliest date, whether or not consecutive, in respect of which the worker has an incapacity for work resulting from or materially contributed to by the injury to which the employment obligation period relates.
(2) An employer must, to the extent that it is reasonable to do so, provide to a worker for the duration of the employment obligation period—
(a) suitable employment if the worker has a current work capacity; and
(b) pre-injury employment if the worker no longer has an incapacity for work.
Penalty: 180 penalty units for a natural person;
900 penalty units for a body corporate.
(3) For the purposes of this section, the employment obligation period includes any period specified in subsection (4)(b), (4)(c) or (4)(d) if the employer provides suitable employment or pre-injury employment to the worker during that period.
(4) For the purposes of this section, except as provided in subsection (3), the employment obligation period does not include—
(a) any period during which the worker does not have an incapacity for work;
(b) the period commencing on the date of a decision made by the Authority or self-insurer to reject the worker's claim for weekly payments and ending on the date on which—
(i) a Conciliation Officer gives a direction that weekly payments are to be paid in relation to the claim; or
(ii) a Conciliation Officer makes a recommendation that weekly payments are to be paid in relation to the claim and the recommendation is accepted by the employer or the Authority or self-insurer; or
(iii) the claim is determined by a court in favour of the worker;
(c) the period commencing on the date the Authority sets aside a decision to accept a claim for compensation against an employer under section 114N(1)(b) and ending on a date specified in subparagraph (i), (ii) or (iii) of paragraph (b);
(d) the period commencing on the date a direction given by a Conciliation Officer that weekly payments are to be made is revoked and the date that the payment of weekly payments is resumed.
(1) An employer must, to the extent that it is reasonable to do so, plan the return to work of a worker from the date on which the employer knows or ought reasonably to have known of the worker's incapacity for work, whichever is the earlier date.
Penalty: 120 penalty units for a natural person;
600 penalty units for a body corporate.
(2) An employer must when planning the return to work of a worker undertake the tasks specified in subsection (3) as often as is necessary to enable the worker to return to work in employment which is consistent with the worker's capacity for work.
(3) Planning the return to work of a worker includes—
(a) obtaining relevant information about the worker's capacity for work; and
(b) considering reasonable workplace support, aids or modifications to assist in the worker's return to work; and
(c) assessing and proposing options for suitable employment or pre-injury employment; and
(d) engaging in consultation in accordance with section 196; and
(e) providing the worker with clear, accurate and current details of the worker's return to work arrangements; and
(f) monitoring the worker's progress.
(1) An employer must, to the extent that it is reasonable to do so, consult about the return to work of a worker with—
(a) the worker; and
(b) subject to the consent of the worker, the worker's treating health practitioner; and
(c) a provider of occupational rehabilitation services that provides those services to the worker in accordance with section 99 and 99A.
Penalty: 120 penalty units for a natural person;
600 penalty units for a body corporate.
(2) The employer must consult with the persons specified in subsection (1) by—
(a) sharing information about the worker's return to work; and
(b) providing a reasonable opportunity for those persons to consider and express their views about the worker's return to work; and
(c) taking those views into account.
(3) For the purposes of this section, an employer's consultation with a worker about the return to work of the worker must involve the employer consulting directly with the worker however a worker may be assisted by a representative during any consultation.
(1) Subject to this section, an employer must nominate a person who has an appropriate level of seniority and is competent to assist the employer to meet the obligations of the employer under this Part to be a return to work co-ordinator.
Penalty: 120 penalty units for a natural person;
600 penalty units for a body corporate.
(2) A person is competent to assist the employer to meet the obligations of the employer under this Part if the person has knowledge, skills or experience relevant to planning for return to work, including—
(a) knowledge of the obligations of employers and workers under this Part; and
(b) knowledge of the compensation scheme provided for under this Act and the functions of the Authority and, if relevant, self-insurers under this Part.
(3) An employer who has certified, or in respect of whom there has been assessed, total rateable remuneration of $2 000 000 or more for all workplaces of the employer in respect of the preceding policy period must ensure that a person is—
(a) nominated as the return to work co-ordinator; and
(b) appointed at all times.
(4) An employer who has certified, or in respect of whom there has been assessed, total remuneration of less than $2 000 000 for all workplaces of the employer in respect of the preceding policy period must ensure that the person nominated as a return to work co-ordinator is appointed for the duration of the employer's obligations under this Part to a worker who has an incapacity for work.
(5) A return to work co-ordinator is not personally liable for any act or omission done or omitted to be done in good faith in the course of acting as a return to work co-ordinator.
(6) Any liability resulting from an act or omission that, but for subsection (5), would attach to a return to work co-ordinator, instead attaches to the employer.
(7) The amount specified in subsections (3) and (4) shall be varied, in respect of the financial year beginning on 1 July 2010 and each subsequent financial year, in accordance with the formula—
where—
D is the amount specified in subsections (3) and (4) or that amount as last varied in accordance with this subsection;
E is the all groups consumer price index for Melbourne as at 15 June in the preceding financial year last published by the Australian Statistician in respect of the December quarter of that financial year;
F is the all groups consumer price index for Melbourne as at 15 June in the year preceding the preceding financial year published by the Australian Statistician in respect of the December quarter preceding that 15 June.
(1) An employer must make information available to the employer's workers about—
(a) the obligations of the employer under this Part and how the employer is meeting the obligations; and
(b) the rights and obligations of workers under this Part and how workers can obtain further information about the rights and obligations; and
(c) the name and contact details of the authorised agent selected by the employer; and
(d) the name and contact details of the return to work co-ordinator, if applicable; and
(e) the procedure for resolving return to work issues as specified in section 207.
Penalty: 120 penalty units for a natural person;
600 penalty units for a body corporate.
(2) An employer must consult with the employer's workers as to how the information is to be made available under this section.
Penalty: 120 penalty units for a natural person;
600 penalty units for a body corporate.
(1) This section applies if—
(a) the services of a worker are let on hire to another person ( host ) by the employer ( labour hire employer ) with whom the worker had entered into a contract of employment; and
(b) there is caused to the worker an incapacity for work resulting from or materially contributed to by an injury arising out of or in the course of employment with the labour hire employer whilst the worker is let on hire to the host.
(2) A host must, to the extent that it is reasonable to do so, co-operate with the labour hire employer, in respect of action taken by the labour hire employer in order to comply with sections 194, 195 and 196, to facilitate the worker's return to work.
Penalty: 120 penalty units for a natural person;
600 penalty units for a body corporate.
A worker who has an incapacity for work must in co-operation with the employer, Authority or self-insurer make reasonable efforts to actively participate and co-operate in planning for the worker to return to work.
A worker who has an incapacity for work must actively use an occupational rehabilitation service provided in accordance with sections 99 and 99A and co-operate with the provider of that service.
A worker who has an incapacity for work must, when requested to do so by the employer, Authority or self-insurer, actively participate and co-operate in any assessment of—
(a) capacity for work;
(b) rehabilitation progress;
(c) future employment prospects.
(1) A worker who has an incapacity for work must, in co-operation with the employer, Authority or self-insurer make reasonable efforts to return to work in suitable employment or pre-injury employment at the worker's place of employment or at another place of employment.
(2) For the purposes of subsection (1), a worker is to be treated as making a reasonable effort to return to work in suitable employment or pre-injury employment during any reasonable period in which—
(a) the worker is waiting for the commencement of an occupational rehabilitation service after approval has been given; or
(b) the worker is waiting for a response to a request for suitable employment or pre-injury employment made by the worker and received by the employer; or
(c) if the employer's response is
that suitable employment or pre-injury employment may or will be provided at
some time, the worker is waiting for suitable employment or
pre-injury employment to commence; or
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(d) if the employer's response is that suitable employment or pre-injury employment cannot be provided at some time, the worker is waiting for a response to a request for suitable employment or pre-injury employment from another employer.
(3) For the purposes of subsection (1), a worker must not be treated as making a reasonable effort to return to work in suitable employment or pre-injury employment during any period in which the worker has refused or failed to meet any obligations under this Division.
(1) A worker who has an incapacity for work must, as required by the Authority or self-insurer—
(a) participate in an interview with the representative of the Authority or self-insurer for the purpose of enhancing the worker's opportunities to return to work; and
(b) actively participate and co-operate in the interview referred to in paragraph (a) in order to comply with his or her obligations under this Division.
(2) In arranging an interview under this section, the Authority or self-insurer must, by notice in writing given to the worker, specify—
(a) the time and place of the interview; and
(b) that the worker must participate in an interview and may be accompanied by a representative.
(1) This section applies if a worker does not comply with an obligation of the worker imposed under Division 3.
(2) If this section applies, the Authority or self-insurer may in accordance with this section—
(a) suspend the payment of compensation in the form of weekly payments to the worker; or
(b) terminate the payment of compensation in the form of weekly payments to the worker; or
(c) cease and determine the entitlement of the worker to compensation in the form of weekly payments in respect of the injury under this Act.
(3) If the Authority or self-insurer seeks to suspend payments of compensation under subsection (2)(a), the Authority or self-insurer must give written notice to the worker stating—
(a) the reason for the giving of the
notice; and
s. 129
(b) that unless the worker complies with the obligation under Division 3 specified in the notice, weekly payments to the worker will be suspended from the date specified in the notice which must be a date at least 14 days after notice is given but no more than 60 days after notice is given; and
(c) the consequences of failing to comply as specified in the notice.
(4) If the worker fails to comply with a written notice under subsection (3), the Authority or self-insurer may suspend the payment of weekly payments to the worker for a period of 28 days after the date specified in the notice referred to in subsection (3)(b).
(5) If the worker complies with the obligation specified in the notice under subsection (3) during the period that weekly payments are suspended under subsection (4), the Authority or self-insurer must, subject to and in accordance with this Act, resume the payment of weekly payments with effect from the date on which the worker complied with the obligation.
(6) If subsection (5) applies, the worker forfeits any compensation in the form of weekly payments that would otherwise have been made during the period of suspension until the worker complied with the obligation and that period is included in determining the first or second entitlement period under Part IV.
(7) If the worker does not comply with the obligation specified in the notice under subsection (3) for the entire period that weekly payments are suspended under subsection (4), the Authority or self-insurer may terminate the payment of compensation in the form of weekly payments to the worker in respect of the injury by written notice stating the reasons for giving the notice.
(8) If the worker—
(a) does not comply with the obligation specified in the notice under subsection (3) for the entire period that weekly payments are suspended under subsection (4); and
(b) has within the last 12 months prior to the giving of the notice referred to in paragraph (a)—
(i) been issued 2 notices under subsection (3) without a subsequent suspension of weekly payments; or
(ii) had compensation in the form of weekly payments suspended once under subsection (4)—
the Authority or self-insurer may cease and determine the entitlement to compensation in the form of weekly payments in respect of the injury to the worker under this Act by written notice stating the reasons for giving the notice.
(9) Section 114 does not apply to a notice given under this section.
(10) This section does not derogate from any other provision of this Act.
(1) If a worker who has been receiving weekly payments directly from the Authority returns to any work (whether as a worker or otherwise), the worker must immediately notify the Authority of the return to work.
(2) If a worker who has been receiving weekly payments returns to any work, whether as a self-employed person or in employment, and whether in receipt of current weekly earnings or not, with an employer other than the employer in whose employment the injury occurred, the worker must immediately notify the employer in whose employment the injury occurred of the return to work.
(1) If an issue about a worker's return to work arises, the employer and the worker must attempt to resolve the issue in accordance with—
(a) the relevant agreed procedure; or
(b) if there is no relevant agreed procedure, in accordance with the relevant procedure specified in written directions issued by the Minister for the purposes of this section.
(2) The Minister may issue written directions in respect of the procedure for the resolution of a return to work issue.
(1) As soon as practicable after accepting a claim for compensation from a worker who has an incapacity for work, the Authority or self-insurer must inform the worker—
(a) of the obligation of the employer to provide suitable employment or pre-injury employment for the duration of the employment obligation period; and
(b) as to how the employment obligation period is to be calculated.
(2) Subject to, and in accordance with, any directions issued under subsection (3), if the Authority or self-insurer estimates that at least 30 weeks of the employment obligation period have expired, the Authority or self-insurer must advise the worker in writing, no later than what the Authority or self-insurer estimates to be 36 weeks after the expiration of the employment obligation period—
(a) as to the number of weeks of the employment obligation period which in the opinion of the Authority or self-insurer have expired; and
(b) that the worker may request the Authority or self-insurer to provide more information in respect of return to work.
(3) The Minister may issue written directions in respect of—
(a) the information to be provided under this section; and
(b) the type of circumstances that do not require written advice to be given under subsection (2).
(4) This section does not affect the obligations of an employer under this Part.
(5) In this section—
"employment obligation period "has the same meaning as it has in section 194.
(1) The Authority may direct an employer to use the services of an approved provider of occupational rehabilitation services to advise and assist the employer in relation to the employer's return to work obligations.
(2) An employer who is given a direction under subsection (1) must comply with the direction.
Penalty: 120 penalty units for a natural person;
600 penalty units for a body corporate.
(3) A direction made under subsection (1) does not derogate from any matter referred to in section 99.
(1) For the purpose of providing practical guidance to persons who have obligations under this Part, the Minister may make an order approving a compliance code.
(2) A compliance code may apply, adopt or incorporate any matter contained in a document formulated, issued or published by a person or body whether—
(a) with or without modification; or
(b) as in force at a particular time or from time to time.
(3) The Minister may make an order approving the variation of a compliance code or revoking the approval of a compliance code.
(4) An order approving a compliance code, or a variation or revocation order, takes effect when notice of it is published in the Government Gazette or on such later date as is specified in the order.
Note
The Minister's power to make an order approving a compliance code, or a variation order, is subject to disallowance by the Parliament (see section 212).
(5) As soon as practicable after making an order approving a compliance code, or a variation or revocation order, the Minister must ensure that notice of the making of the order is published in the Government Gazette and a newspaper circulating generally throughout the State.
(6) The Minister must ensure that a copy of—
(a) each compliance code that is currently approved; and
(b) each document applied, adopted or incorporated (to any extent) by a compliance code—
is available for inspection by members of the public without charge at the office of the Authority during normal business hours.
A failure to comply with a compliance code does not of itself give rise to any civil or criminal liability.
Note
A person who complies with a compliance code may, however, be taken to have complied with this Act (see section 213).
(1) The Minister's power to make an order approving a compliance code, or a variation order, under this Part is subject to the order being disallowed by the Parliament.
(2) Section 15 and Part 5 of the Subordinate Legislation Act 1994 apply for the purposes of subsection (1) as though—
(a) an order were a statutory rule (within the meaning of that Act); and
(b) notice of the making of the statutory rule had been published in the Government Gazette when notice of the order or variation order (as the case may be) was published in the Government Gazette.
If a compliance code makes provision for or with respect to an obligation imposed by this Part and a person complies with the compliance code to the extent that it makes that provision, the person is, for the purposes of this Act taken to have complied with this Act in relation to that obligation.
(1) The Authority may make recommendations to the Minister with respect to compliance codes that the Minister or the Authority propose should be made under this Act.
(2) Before the Authority makes a recommendation to the Minister under subsection (1) concerning a proposed compliance code, it must issue the proposed compliance code for public review and comment.
(3) However, the Authority need not comply with subsection (2) if the Authority is notified by the Minister that the Minister considers that it is in the public interest that the proposed compliance code be made as soon as practicable.
(1) This section applies to directions issued by the Minister under sections 207 and 208.
(2) A direction must be published in the Government Gazette.
(3) The Minister may amend or revoke a direction by publishing the amendment or revocation in the Government Gazette.
(4) A direction, amendment or revocation takes effect on the day after it is published in the Government Gazette, or on any later day specified in the direction, amendment or revocation.
(5) A person to whom a direction applies must comply with the direction.
(1) The Minister's power to issue directions, or amend directions, under this Part is subject to the directions being disallowed by the Parliament.
(2) Section 15 and Part 5 of the Subordinate Legislation Act 1994 apply for the purposes of subsection (1) as though—
(a) a direction were a statutory rule (within the meaning of that Act); and
(b) notice of the making of the statutory rule had been published in the Government Gazette when notice of the direction or amendment of the direction (as the case may be) was published in the Government Gazette.
In this Division, a reference to an employer includes a reference to a host unless the contrary intention appears.
(1) The Authority may, by instrument in writing, appoint an officer or employee of the Authority to be an inspector for the purposes of this Part.
(2) The Authority must give each inspector a certificate of appointment signed by the chief executive of the Authority.
(3) A certificate of appointment given to an inspector in accordance with subsection (2) is conclusive proof of the valid appointment of the inspector under this section.
(1) The Authority must issue an identity card to each inspector containing a photograph of the inspector and his or her signature.
(2) An inspector must produce his or her identity card for inspection if asked to do so when performing a function or exercising a power under this Act.
(3) If a person to whom an identity card has been issued ceases to be an inspector, the person must return the identity card to the Authority as soon as possible.
(1) An inspector is subject to the Authority's directions in the performance of his or her functions or exercise of his or her powers under this Act.
(2) A direction under subsection (1) may be of a general nature or may relate to a specified matter or specified class of matter.
(1) Subject to subsection (2), an inspector may, without force, enter a place that the inspector reasonably believes is a workplace at any time during the work hours of the workplace.
(2) The powers of an inspector under this Subdivision in relation to entering a place that is a workplace are not exercisable in respect of any part of that place that is only used for residential purposes except with the consent of the occupier for the time being of the place.
Immediately on entering a workplace under this Subdivision, an inspector must take reasonable steps to notify the occupier or apparent occupier of the entry and to produce his or her identity card for inspection by that person.
(1) An inspector who enters a workplace under this Subdivision must give a report concerning the entry when, or as soon as practicable after, the inspector leaves the workplace to the occupier or apparent occupier for the time being of the workplace.
(2) If the purpose of the entry into a workplace by an inspector relates to the return to work of a worker, the inspector may give a copy of the report concerning the entry, to the worker and any authorised agent selected by the employer to assist in the management of the worker's claim for compensation.
(3) The report must be in writing and include—
(a) the time of the entry and departure; and
(b) the purpose of the entry; and
(c) a description of things done
while at the workplace; and
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(d) a summary of the inspector's observations while at the workplace; and
(e) the procedure for contacting the Authority and the inspector for further details of the entry; and
(f) the procedure for seeking review of any decision made by the inspector during the entry.
(4) If the inspector takes photographs or makes sketches or recordings under section 221(e), the report must also include a statement that—
(a) the photographs have been taken or sketches or recordings have been made; and
(b) they are or will be available for inspection at a specified place.
An inspector who enters a workplace under this Subdivision may do any of the following—
(a) inspect, examine and make enquiries at the workplace;
(b) inspect and examine any thing (including a document) at the workplace;
(c) bring any equipment or materials to the workplace that may be required;
(d) seize any thing (including a document) at the workplace that may afford evidence of the commission of an offence against this Act;
(e) take photographs or measurements or make sketches or recordings;
(f) exercise any other power conferred on the inspector by this Act;
(g) do any other thing that is reasonably necessary for the purpose of the inspector performing his or her functions or exercising his or her powers under this Act.
Note
This section does not affect legal professional privilege or client legal privilege (see section 248E) or, in the case of a requirement to answer questions, the privilege against self-incrimination (see section 248D).
(1) An inspector who enters a workplace under this Subdivision may—
(a) require a person to produce a document or part of a document that is in the person's possession or control; and
(b) examine that document or part; and
(c) require a person to answer any questions put by the inspector.
(2) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1).
Penalty: 60 penalty units for a natural person;
300 penalty units for a body corporate.
(3) Before requiring a person to produce a document or part of a document or to answer questions under subsection (1), an inspector must—
(a) produce his or her identity card for inspection by the person and warn the person that a refusal or failure to comply with the requirement, without reasonable excuse, is an offence; and
(b) inform the person that he or she may refuse or fail to answer any question if answering the question would tend to incriminate him or her.
(4) A person is not liable to be prosecuted for an offence against subsection (2) if the inspector concerned failed to comply with subsection (3).
Note
This section does not affect legal professional privilege or client legal privilege (see section 248E) or, in the case of a requirement to answer questions, the privilege against self-incrimination (see section 248D).
As soon as possible after an inspector seizes any thing (including a document) under this Subdivision the Authority must return the thing to the owner unless—
(a) the Authority considers it necessary to retain the thing because it may afford evidence in proceedings, that have been or may be commenced, for an offence against this Act; or
(b) the Authority is otherwise authorised (by a law or court order) to retain, destroy or dispose of the thing.
(1) If an inspector reasonably believes that an employer—
(a) is contravening a provision of this Part; or
(b) has contravened such a provision in circumstances that make it likely that the contravention will continue or be repeated—
the inspector may issue to the employer a Return to Work improvement notice requiring the employer to remedy the contravention or likely contravention.
(2) A Return to Work improvement notice must—
(a) state the basis for the inspector's belief on which the issue of the notice is based; and
(b) specify the provision of this Part that the inspector considers has been or is likely to be contravened; and
(c) specify a date (with or without
a time) by which the employer is required to remedy the contravention or
likely contravention; and
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(d) set out the penalty for contravening the notice; and
(e) state how the employer may seek review of the issue of the notice; and
(f) include a statement of the effect of section 229 (proceedings for offence not affected by Return to Work improvement notice).
(3) A Return to Work improvement notice may include directions concerning the measures to be taken to remedy the contravention or likely contravention to which the notice relates and may, in particular, include—
(a) a direction that if the person has not remedied the contravention, likely contravention, matters or activities (as the case may be) by the date and time (if any) specified in the notice, an activity to which the notice relates is to cease until an inspector has certified in writing that the contravention, likely contravention, matters or activities have been remedied; and
(b) interim directions, or interim conditions on the carrying on of any activities to which the notice relates, that the inspector considers necessary to enable the worker's early, safe and sustainable return to work.
(4) An employer to whom a Return to Work improvement notice is issued must comply with the Return to Work improvement notice.
Penalty: 120 penalty units for a natural person;
600 penalty units for a body corporate.
(5) If an application for review of a decision under this section has been made under Subdivision 4, an inspector must not give a certificate under subsection (3)(a) in relation to the Return to Work improvement notice.
A direction or condition included in a Return to Work improvement notice may—
(a) refer to a compliance code or a Ministerial direction; and
(b) offer the employer to whom it is issued a choice of ways in which to remedy the contravention or likely contravention.
A Return to Work improvement notice issued by an inspector may be varied or cancelled by the Authority.
(1) A Return to Work improvement notice may be issued to an employer by—
(a) delivering it personally to the employer or sending it by post or facsimile to the usual or last known place of business of the employer; or
(b) leaving it for the employer at the usual or last known place of business of the employer with a person who apparently has authority to receive correspondence or communications with the employer.
(2) An employer to whom a Return to Work improvement notice is issued must as soon as possible, if the Return to Work improvement notice relates to the obligation of the employer under section 197 or 198, display a copy of the notice in a prominent place at or near the workplace.
Penalty: 5 penalty units for a natural person;
25 penalty units for a body corporate.
(3) If the Return to Work improvement notice relates to the return to work of a worker, the inspector must provide a copy of the notice to the worker.
(4) If a Return to Work improvement notice is issued—
(a) to a labour hire employer and the Return to Work improvement notice relates to a worker who received an injury arising out of or in the course of employment with the labour hire employer whilst let on hire to a host, the inspector may provide a copy of the Return to Work improvement notice to the host;
(b) to a host and the Return to Work improvement notice relates to the obligation to co-operate with the labour hire employer, in respect of action taken by the labour hire employer in order to comply with sections 194, 195 and 196, to facilitate the worker's return to work, the inspector may provide a copy of the Return to Work improvement notice to the labour hire employer.
(5) If a Return to Work improvement notice relates to an obligation of an employer in respect of the return to work of a worker, the inspector may provide a copy of the Return to Work improvement notice to the authorised agent selected by the employer for the purpose of assisting in the management of the claim for compensation by the worker.
A Return to Work improvement notice is not invalid merely because of—
(a) a formal defect or irregularity in the Return to Work improvement notice unless the defect or irregularity causes or is likely to cause substantial injustice; or
(b) a failure to use the correct name of the employer to whom the Return to Work improvement notice is issued if the Return to Work improvement notice sufficiently identifies the employer and is issued to the employer in accordance with section 227.
The issue, variation or cancellation of a Return to Work improvement notice does not affect any proceedings for an offence against this Act in connection with any matter in respect of which the Return to Work improvement notice was issued.
A person must not, without reasonable excuse, refuse or fail to provide such assistance as an inspector may reasonably require for the performance of his or her functions or exercise of his or her powers under this Act.
Penalty: 60 penalty units for a natural person;
300 penalty units for a body corporate.
(1) For the purpose of exercising a power under this Act, an inspector may seek the assistance of any person.
(2) If the power being exercised involves entry to premises, the person assisting must be allowed access to those premises by the employer or apparent employer or occupier or apparent occupier.
Penalty: 60 penalty units for a natural person;
300 penalty units for a body corporate.
(3) If an inspector uses the assistance of an
interpreter—
s. 129
(a) any enquiry or request made by the interpreter on the inspector's behalf is taken to have been made by the inspector; and
(b) any answer given to the interpreter is taken to have been given to the inspector.
An inspector is authorised to take affidavits and statutory declarations for any purpose relating or incidental to the performance of his or her functions or exercise of his or her powers under this Act.
An inspector may make copies of, or take extracts from, a document or part of a document given to the inspector in accordance with a requirement under this Act.
(1) A person must not—
(a) intentionally hinder or obstruct an inspector in the performance of his or her functions or exercise of his or her powers under this Act, or induce or attempt to induce any other person to do so; or
(b) intentionally conceal from an inspector the location or existence of any other person or thing; or
(c) intentionally prevent or attempt to prevent any other person from assisting an inspector.
Penalty: 60 penalty units for a natural person;
300 penalty units for a body corporate.
(2) A person must not assault, directly or indirectly intimidate or threaten, or attempt to intimidate or threaten, an inspector or a person assisting an inspector.
Penalty: Imprisonment for 2 years, or 240 penalty units, or both for a natural person;
1200 penalty units for a body corporate.
A person who is not an inspector must not, in any way, hold himself or herself out to be an inspector.
Penalty: 60 penalty units.
(1) The following table sets out—
(a) decisions made under this Division that are reviewable in accordance with this Subdivision ( reviewable decisions ); and
(b) who is eligible to apply for review of a reviewable decision (the eligible person in relation to the reviewable decision).
(2) To avoid doubt, sections 4 and 5 of the Victorian Civil and Administrative Tribunal Act 1998 apply for the purposes of this Division.
Note
Under section 4 of the Victorian Civil and Administrative Tribunal Act 1998 , a person makes a decision if the person refuses to make a decision or an instrument, imposes a condition or restriction or does or refuses to do any other act or thing. Section 5 of that Act sets out when a person's interests are affected by a decision.
|
|
Provision under which reviewable decision is made |
Eligible person in relation to reviewable decision |
|---|---|---|
|
1 |
Section 224(1) (issue of a Return to Work improvement notice) |
(1) The employer to whom the Return to Work improvement notice is issued. (2) A worker whose interests are directly affected by the decision. (3) An employer whose interests are affected by the decision. |
|
2 |
Section 224(3)(a) (certification that matters the subject of a Return to Work improvement notice have been remedied) |
(1) The employer to whom the Return to Work improvement notice was issued. (2) A worker whose interests are directly affected by the decision. (3) An employer whose interests are affected by the decision. |
|
3 |
Section 226 (variation or cancellation of a Return to Work improvement notice) |
(1) The employer to whom the Return to Work improvement notice concerned was issued. (2) A worker whose interests are directly affected by the decision. (3) An employer whose interests are affected by the decision. |
(1) An eligible person in relation to a reviewable decision, other than a decision made by the Authority under section 226, may apply to the Authority for review of the decision within—
(a) 14 days after the day on which the decision first came to the eligible person's notice; or
(b) such longer period as the Authority allows.
(2) The application must be in the form approved (in writing) by the Authority.
(3) If an application is made to the Authority in accordance with this section, the Authority must make a decision—
(a) to affirm or vary the reviewable decision; or
(b) to set aside the reviewable decision and substitute another decision that the Authority considers appropriate.
(4) The Authority must give a written notice to the applicant setting out—
(a) the Authority's decision under subsection (3) and the reasons for the decision; and
(b) the findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based—
and must do so within 21 days after the application is made or, if the reviewable decision was made under section 224(3)(a), within 7 days after the application is made.
(5) If the Authority has not notified an applicant of a decision in accordance with subsection (4), the Authority is taken to have made a decision to affirm the reviewable decision.
(6) An application under this section does not affect the operation of the reviewable decision or prevent the taking of any action to implement it unless the Authority, on its own initiative or on the application of the applicant for review, stays the operation of the decision pending the determination of the review.
(7) The Authority must make a decision on an application for a stay within 24 hours after the making of the application.
(8) If the Authority has not made a decision in accordance with subsection (7), the Authority is taken to have made a decision to grant a stay.
(9) The Authority may attach any conditions to a stay of the operation of a reviewable decision that it considers appropriate.
(1) A person may apply to the Tribunal for review of—
(a) a reviewable decision made by the Authority under section 226; or
(b) a decision made, or taken to have been made, by the Authority under section 236A in respect of a reviewable decision (including a decision concerning a stay of the operation of the reviewable decision)—
if the person is an eligible person in relation to the reviewable decision.
(2) The application must be made—
(a) within 14 days after the day on which the decision first came to the applicant's notice; or
(b) if the Authority is required by the Victorian Civil and Administrative Tribunal Act 1998 to give the applicant a statement of reasons, within 14 days after the day on which the applicant is given the statement—
whichever period ends later.
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