(1) Subject to
section 92(h), where the amount of compensation under this Act has been
ascertained, or any weekly payment varied, or any other matter decided under
this Act by agreement, or any agreement, whether purporting to be made under
this Act or not, has been entered into whereby a worker agrees to compound any
claim or right to compensation under this Act, a memorandum thereof shall be
sent, in manner prescribed, by any party interested, to the Director, who,
subject to subsection (2a), shall, on being satisfied as to its genuineness,
and, where the agreement provides for the payment of compensation pursuant to
an election under section 24, 24A, 31C or 31E, as to the adequacy of the
amount thereof, record such memorandum in a special register without fee, and
thereupon the memorandum shall for all purposes be enforceable as an award or
order made by an arbitrator.
(2) No such memorandum
shall be recorded before 7 days after the despatch by the Director of notice
to the parties interested.
(2a) The Director
cannot, under this section, record a memorandum of an agreement for the
payment of a lump sum in redemption of the liability to pay compensation
unless the Director is satisfied that the worker is aware of the consequences
of the recording of the memorandum.
(3) No agreement
between a worker and an employer has any force or validity if it exempts the
employer wholly or partially from any liability for compensation to which the
worker is or may subsequently become entitled under this Act, and
notwithstanding any such agreement, a worker may recover from his employer any
compensation to which he is, or subsequently becomes, so entitled, but the
foregoing provisions of this subsection have no application to an agreement
for the redemption of the liability to pay compensation if a memorandum of the
agreement has been duly recorded under this section.
(4) Where a worker
seeks to record a memorandum of agreement between his employer and himself for
the payment of compensation under this Act, and the employer proves that the
worker has in fact returned to work and is no longer incapacitated, and
objects to the recording of such memorandum, the memorandum shall only be
recorded, if at all, on such terms as an arbitrator, under the circumstances,
may think just.
(5) The Director may
at any time rectify the register.
(6) A memorandum
received for registration shall be examined as to —
(a) the
genuineness of the agreement; and
(b) the
adequacy of the amount of any compensation pursuant to an election under
section 24, 24A, 31C or 31E payable under the agreement,
and if it appears to
the Director as the result of such examination or as the result of any
information which the Director considers sufficient that a redemption
agreement or an agreement as to the amount of compensation payable to the
worker or to a person under any legal disability or to dependants, ought not
to be registered by reason of the agreement having been obtained by fraud or
undue influence or other improper means, or by reason that the amount of
compensation pursuant to an election under section 24, 24A, 31C or 31E payable
under the agreement is inadequate or excessive, the Director shall refuse to
record the memorandum of the agreement sent for registration, and in that case
shall refer the matter to the Registrar who shall allocate it to an arbitrator
to make such order (including an order as to any sum already paid under the
agreement) as the arbitrator thinks just.
(7) For the purpose of
carrying out his duties under subsection (6) the Director may, by notice in
writing, require the attendance before him of the parties to the agreement and
interrogate them in relation to the agreement and where the medical opinion of
a medical practitioner is material and relevant to the question of the
adequacy of the amount of compensation pursuant to an election under
section 24, 24A, 31C or 31E payable under the agreement, the Director may
require the employer to have the worker examined by a medical practitioner
nominated by the Director, at the expense of the employer, in any case where
the Director is of the opinion that a report from such medical practitioner
will assist him in determining the matter of the adequacy or inadequacy of the
amount of the compensation.
(7a) A medical
practitioner nominated by the Director under subsection (7) to examine a
worker who has made an election under section 31C in respect of an impairment
that is not AIDS must be an approved medical specialist.
(8) An arbitrator may,
upon application being made by either party within 6 months after a memorandum
of an agreement as to the redemption of the liability to pay compensation for
an injury by a lump sum, or of an agreement as to the amount of compensation
payable to a person under any legal disability, or to dependants, has been
recorded in the register, order that the record be removed from the register
on proof to the arbitrator’s satisfaction that the agreement was
obtained by fraud or undue influence or other improper means, or that the
amount of compensation pursuant to an election under section 24, 24A, 31C or
31E payable under the agreement is inadequate or excessive, and may make such
order (including an order as to any sum already paid under the agreement) as
under the circumstances the arbitrator thinks just.
(9) Where a memorandum
has been recorded under this section the Director shall without fee issue a
certificate of the memorandum and the recording on application by any party
concerned.
(10) Subject to this
Act the certificate is evidence of the subject matter referred to in the
certificate before any court or other tribunal or person in respect of
proceedings to enforce compliance with the subject matter of the memorandum
and for all other purposes under this Act.
[Section 76 amended: No. 48 of 1993 s. 28(1) and
38; No. 33 of 1999 s. 6; No. 34 of 1999 s. 17; No. 74 of 2003 s. 134(2); No.
42 of 2004 s. 62 and 146; No. 31 of 2011 s. 27.]