Victorian Numbered Acts Victorian Numbered ActsAfter Part VI of the Accident Compensation Act 1985 insert —
In this Part—
"actuary" means a fellow or accredited member of the Institute of Actuaries of Australia approved by the Authority;
"available assets" means the portion of the Authority's total assets assessed by an actuary calculated, with reference to the last audited financial statements of the Authority, to be available to fund the tail claims liabilities;
"exit date" means the date on which an employer becomes a non-WorkCover employer;
"initial assessment" means the assessment of tail claims liabilities under section 166;
"liability period" means the period of 6 years commencing from the exit date;
"non-WorkCover employer" means an employer who—
(a) on or after the commencement of section 6 of the Accident Compensation (Amendment) Act 2005 , becomes licensed under Part VIII of the Safety, Rehabilitation and Compensation Act 1988 of the Commonwealth after a declaration of eligibility under that Part made on the basis that the employer is a corporation carrying on business in competition with a Commonwealth authority or with another corporation that was previously a Commonwealth authority; and
(b) would otherwise be required—
(i) to obtain and keep a WorkCover insurance policy; or
(ii) to be approved as a self-insurer; or
(iii) to be a subsidiary of a holding company which is approved to be a self-insurer;
"revised assessment" means the assessment of tail claims liabilities under section 169;
"tail claims" means claims whether made before, on or after the exit date—
(a) in respect of injuries or deaths incurred or suffered by workers employed by the non-WorkCover employer while the non-WorkCover employer was—
(i) insured under a WorkCover insurance policy; or
(ii) a self-insurer; or
(iii) a subsidiary of a self-insurer; and
(b) which entitle a worker or the dependants of a worker to compensation whether under this Act, at common law or otherwise;
"tail claims liabilities" means the sum of the actuarial value of the current, non-current and contingent liabilities immediately before the exit date in respect of tail claims under this Act of the non-WorkCover employer while the non-WorkCover employer was—
(a) insured under a WorkCover insurance policy; or
(b) a self-insurer; or
(c) a subsidiary of a self-insurer.
On the exit date the Authority—
(a) if the non-WorkCover employer was insured under a WorkCover insurance policy, retains—
(i) the liability for; and
(ii) the responsibility for management of—
the tail claims of the non-WorkCover employer; or
(b) if the non-WorkCover employer was a self-insurer, assumes—
(i) the liability for; and
(ii) the responsibility for management of—
the tail claims of the non-WorkCover employer; or
(c) if the non-WorkCover employer was a subsidiary of a self-insurer and the Authority has determined to assume liability under section 151A, assumes—
(i) the liability for; and
(ii) the responsibility for management of—
the tail claims of the non-WorkCover employer.
(1) If the non-WorkCover employer was insured under a WorkCover insurance policy, an actuary appointed by the Authority must undertake an assessment of—
(a) the tail claims liabilities; and
(b) the available assets.
(2) If the non-WorkCover employer was a self-insurer or a subsidiary of a self-insurer to which this Part applies, an actuary appointed by the Authority must assess the tail claims liabilities.
(3) If a non-WorkCover employer referred to in sub-section (2) fails to permit the actuary to inspect the books of the non-WorkCover employer to enable that assessment to be made, the tail claims liabilities are deemed to be the amount that the actuary determines to be the tail claims liabilities of the non-WorkCover employer.
(4) The non-WorkCover employer must pay the cost of conducting the assessment.
(5) The actuary must provide the non-WorkCover employer with a copy of the proposed assessment.
(6) The non-WorkCover employer may provide comments to the actuary within 28 days of receiving a copy of the proposed assessment or within any further period as may be agreed between the Authority and the non-WorkCover employer.
(7) The actuary must finalise the assessment after considering any comments received under sub-section (6).
(1) If the non-WorkCover employer was insured under a WorkCover insurance policy and the initial assessment is that the tail claims liabilities exceed the available assets, the non-WorkCover employer must pay the amount of the difference to the Authority.
(2) The non-WorkCover employer must pay the amount under sub-section (1) within 28 days of receiving a notice of that initial assessment from the Authority or within any further period as may be agreed between the Authority and the non-WorkCover employer.
(3) If the amount under sub-section (1) is not paid to the Authority in accordance with sub-section (2), the amount together with interest at the prescribed rate may be recovered by the Authority as a civil debt recoverable summarily.
(1) If the non-WorkCover employer was a self-insurer or a subsidiary of a self-insurer to which this Part applies, the non-WorkCover employer must pay the amount of the tail claims liabilities as assessed in the initial assessment to the Authority.
(2) The non-WorkCover employer must pay the amount under sub-section (1) within 28 days of receiving a notice of that initial assessment from the Authority or within any further period as may be agreed between the Authority and the non-WorkCover employer.
(3) If the amount under sub-section (1) is not paid to the Authority in accordance with sub-section (2), the amount together with interest at the prescribed rate may be recovered by the Authority as a civil debt recoverable summarily.
(1) The Authority must ensure that an actuary appointed by the Authority undertakes an assessment of the tail claims liabilities as at the end of each year during the liability period.
Note: Section 44(6)(c) of the Interpretation of Legislation Act 1984 provides that a reference, without qualification, to a year shall be construed as a reference to a period of 12 months.
(2) The non-WorkCover employer must pay the cost of conducting the assessment.
(3) The actuary must provide the non-WorkCover employer with a copy of the proposed assessment.
(4) The non-WorkCover employer may provide comments to the actuary within 28 days of receiving a copy of the proposed assessment or within any further period as may be agreed between the Authority and the non-WorkCover employer.
(5) The actuary must finalise the assessment after considering any comments received under sub-section (4).
(1) If the revised assessment of the tail claims liabilities as at the end of the third year of the liability period exceeds the initial assessment of the tail claims liabilities, the non-WorkCover employer must pay the amount of the difference to the Authority.
(2) The non-WorkCover employer must pay the amount under sub-section (1) within 28 days of receiving a notice of that revised assessment from the Authority or within any further period as may be agreed between the Authority and the non-WorkCover employer.
(3) If the amount under sub-section (1) is not paid to the Authority in accordance with sub-section (2), the amount together with interest at the prescribed rate may be recovered by the Authority as a civil debt recoverable summarily.
(4) If the revised assessment of the tail claims liabilities as at the end of the third year of the liability period is less than the initial assessment of the tail claims liabilities, the Authority must pay the amount of the difference to the non-WorkCover employer.
(1) If the revised assessment of the tail claims liabilities as at the end of the sixth year of the liability period exceeds the revised assessment of the tail claims liabilities as assessed at the end of the third year of the liability period, the non-WorkCover employer must pay the amount of the difference to the Authority.
(2) The non-WorkCover employer must pay the amount under sub-section (1) within 28 days of receiving a notice of that revised assessment from the Authority or within any further period as may be agreed between the Authority and the non-WorkCover employer.
(3) If the amount under sub-section (1) is not paid to the Authority in accordance with sub-section (2), the amount together with interest at the prescribed rate may be recovered by the Authority as a civil debt recoverable summarily.
(4) If the revised assessment of the tail claims liabilities as at the end of the sixth year of the liability period is less than the revised assessment of the tail claims liabilities as assessed at the end of the third year of the liability period, the Authority must pay the amount of the difference to the non-WorkCover employer.
(1) A non-WorkCover employer must ensure that there is in force a guarantee—
(a) against insolvency risk given by an authorised deposit-taking institution to or in favour of the Authority in a form approved by the Authority in respect of 50% of—
(i) in relation to the first year of the liability period, the initial assessment of tail claims liabilities until the end of the first year after the exit date;
(ii) in
relation to the second and subsequent years of the liability period, the
revised amount of the tail claims liabilities still outstanding as assessed at
the end of each subsequent year for the duration of the next year until the
date a payment (if any) is made under section 171; and
s. 6
(b) against claims deterioration given by an authorised deposit-taking institution to or in favour of the Authority in a form approved by the Authority—
(i) in relation to the period from the exit date until the date a payment is made under section 170 or if no payment is required, until the date which is 28 days after the notice of assessment is received under section 170, for the amount, if any, by which the revised assessment of tail claims liabilities at the end of each year exceeds the initial assessment of tail claims liabilities;
(ii) in relation to the period from the end of the period referred to in sub-paragraph (i) until the date a payment is made under section 171 or if no payment is required, until the date which is 28 days after the notice of assessment is received under section 171, or if a review is conducted under section 173, until the date on which the review is finalised, for the amount, if any, by which the revised assessment of tail claims liabilities at the end of each year exceeds the revised assessment of tail claims liabilities as assessed at the end of the third year.
(2) If—
(a) the non-WorkCover employer fails to make a payment required under section 170 or 171; or
(b) any of the following occurs—
(i) the non-WorkCover employer is under official management, is commenced to be wound up or has ceased to carry on business;
(ii) a receiver or receiver and manager is appointed in respect of the property or part of the property of the non-WorkCover employer under the Corporations Law or the corresponding law of another State or Territory;
(iii) the non-WorkCover employer enters into a compromise or scheme of arrangement with its creditors—
the Authority may recover under a guarantee under this section any loss suffered by the Authority.
(1) If a non-WorkCover employer disputes the final revised assessment made under section 169 as at the end of the liability period, the non-WorkCover employer may appoint an actuary to review the final revised assessment.
(2) The non-WorkCover employer must pay the cost of conducting the review.
(3) The actuary appointed by the non-WorkCover employer must provide comments to the actuary who made the final revised assessment within 28 days of the non-WorkCover employer receiving a copy of the final revised assessment.
(4) If the actuary appointed by the non-WorkCover employer and the actuary who made the final revised assessment are unable to reach agreement, the non-WorkCover employer and the Authority may agree—
(a) to jointly appoint another actuary to review the final revised assessment; and
(b) to be bound by the decision of that actuary.
(5) The costs of a review conducted under sub-section (4) are to be borne equally by the non-WorkCover employer and the Authority.
(6) If—
(a) the actuary appointed by the non-WorkCover employer and the actuary who made the final revised assessment were unable to reach agreement; and
(b) the non-WorkCover employer and the Authority do not enter into an agreement under sub-section (4) within 28 days after the period referred to in sub-section (3)—
the final revised assessment under section 169 is by virtue of this sub-section binding on the non-WorkCover employer and the Authority.
Except as is otherwise expressly provided in this Part, the Authority is not liable to make any payment or repayment to a non-WorkCover employer under this Part.
No proceedings—
(a) seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration or an injunction; or
(b) seeking any order under the Administrative Law Act 1978 —
may be brought against the Authority, an actuary or any other person in respect of any assessment under this Part, or any proceedings relating to such an assessment or any other act, matter or thing incidental to the conduct of such an assessment.
This Part continues to apply until the end of the liability period in respect of the tail claims of a non-WorkCover employer who ceases to be a non-WorkCover employer and becomes—
(a) insured under a WorkCover insurance policy; or
(b) a self-insurer; or
(c) a subsidiary of a self-insurer.'.