Industrial Arbitration (Workers Compensation) Amendment Act 1987 (NSW)

INDUSTRIAL ARBITRATION (WORKERS

COMPENSATION) AMENDMENT ACT 1987 No. 77

NEW SOUTH WALES

TABLE OF PROVISIONS

1. Short title
2. Commencement

3.     Amendment of Act No. 2, 1940

SCHEDULE 1—AMENDMENTS TO THE INDUSTRIAL ARBITRATION ACT 1940

IN RESPECT OF THE PROTECTION OF INJURED EMPLOYEES

SCHEDULE 2—AMENDMENTS TO THE INDUSTRIAL ARBITRATION ACT 1940 CONCERNING THE SPECIAL CRIMINAL JURISDICTION OF THE INDUSTRIAL COMMISSION AND INDUSTRIAL MAGISTRATES

•.

INDUSTRIAL ARBITRATION (WORKERS COMPENSATION)

AMENDMENT ACT 1987 No. 77

NEW SOUTH WALES

Act No. 77, 1987

An Act to amend the Industrial Arbitration Act 1940 to make provision for	the protection from dismissal of employees who suffer work related injuries
and to make further provision for the criminal jurisdiction of industrial magistrates and the Industrial Commission. [Assented to 10 June 1987]

Industrial Arbitration (Workers Compensation) Amendment 1987

BE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows:

Short title

1. This Act may be cited as the "Industrial Arbitration (Workers Compensation) Amendment Act 1987".

Commencement

2. (1) Sections 1 and 2 shall commence on the date of assent to this

Act.

(2) Except as provided by subsection (1), this Act shall commence on such day or days as may be appointed by the Governor and notified by proclamation published in the Gazette.

Amendment of Act No. 2, 1940

3. The Industrial Arbitration Act 1940 is amended in the manner set

forth in Schedules 1 and 2.

SCHEDULE 1

(Sec. 3)

AMENDMENTS TO THE INDUSTRIAL ARBITRATION ACT 1940 IN

RESPECT OF THE PROTECTION OF INJURED EMPLOYEES

Part XV—

After Part XIVA. insert:  PART XV

PROTECTION OF INJURED EMPLOYEES

Injured employee

154. In this Part—

"injured employee" means an employee who receives an injury,

being—

(a) an injury within the meaning of the Workers Compensation Act 1987; or

3   Act No. 77

Industrial Arbitration (Workers Compensation) Amendment 1987

SCHEDULE {—continued

AMENDMENTS TO THE INDUSTRIAL ARBITRATION ACT 1940 IN

RESPECT OF THE PROTECTION OF INJURED EMPLOYEES—

continued

(b) a dust disease for which the employee is entitled to receive compensation under the Workers' Compensation (Dust Diseases) Act 1942.

Dismissal

154A. For the purposes of this Part, an employer shall be deemed to have dismissed an employee if—

(a) the employer imposes any unreasonable condition on employment which is designed to make the employee leave the employment; and

(b) the employee leaves the employment.

Dismissal an ofFence

I 54B. (1) An employer shall not dismiss an injured employee

after the commencement of this section solely or principally because the employee is not fit for employment in a position as a result of the injury received, unless—

(a)	at least 6 months have elapsed since the employee first became unfit for employment; or
(b)	the employer believes (at the time of dismissal) on the
basis of a certificate issued by a legally qualified medical
practitioner that the employee will be permanently unfit for employment in the position concerned.

Penalty: $10,000.

(2) It is a defence to a prosecution under this section if the employer satisfies the court that at the time of dismissal the employee would not undergo a medical examination reasonably required to determine fitness for employment.

(3) Thi- section applies even if the employee became unfit for

Industrial Arbitration (Workers Compensation) Amendment 1987

SCHEDULE 1— continued

AMENDMENTS TO THE INDUSTRIAL ARBITRATION ACT 1940 IN

RESPECT OF THE PROTECTION OF INJURED EMPLOYEES—

continued

Application to employer for reinstatement

154c. (1) If an injured employee is dismissed because he or

she is not fit for employment in a position as a result of the injury received, the employee may appl\ to the employer for reinstatement to his or her former position.

(2) An injured employee's former position is—

(a) the position from which the employee was dismissed; or

(b) if the employee was transferred to a less advantageous position before dismissal, the position which the employee held when he or she became unfit for employment,

at the option of the employee.

(3) The employee must produce to the employer a certificate given by a legally qualified medical practitioner to the effect that the employee is fit for employment in the former position.

(4) This section does not apply to a dismissal which occurred before the commencement of this section.

Order for reinstatement

I 5 4 D . (1) In this section—

"appropriate tribunal" means—

(a) the commission: or

(b) a conciliation committee to which is assigned the relevant industry or calling.

(2) If an employer refuses or fails under section 154c to reinstate an employee forthwith, the employee may apply to an appropriate tribunal for a reinstatement order.

(3) The secretary of an industrial union of vvhich the employee
is a member may make the application on behalf of the employee.

5   Act No. 77

Industrial Arbitration (Workers Compensation) Amendment 1987

SCHEDULE 1— continued

AMENDMENTS TO THE INDUSTRIAL ARBITRATION ACT 1940 IN

RESPECT OF THE PROTECTION OF INJURED EMPLOYEES—

continued

(4) On such an application, the appropriate tribunal may order the employer to reinstate the employee, in accordance with the terms of the order, if the tribunal is satisfied that the employee is fit for employment in the position concerned.

Presumption as to reason for dismissal

154K. (1) In proceedings for a reinstatement order it shall be

presumed that the injured employee was dismissed because he or she was not fit for employment in the position as a result of the injury received.

(2) That presumption is rebutted if the employer satisfies the appropriate tribunal that the employee was dismissed for reasons not solely or principally related to the injury.

Reinstatement

154i. For the purposes of this Part, it is sufficient reinstatement of an employee to a position if the employee is reinstated to another position which is no less advantageous to the employee.

Disputes as to fitness—medical panels and referees

154(i. (1) The appropriate tribunal may refer to a medical
referee or a medical panel (established under the Workers

Compensation Act 1987) any dispute as to the employee's

condition and fitness for employment.

(2) The referee or panel shall submit a report to the appropriate

tribunal in accordance with the terms of the reference.
Duty to inform replacement employee

154n. An employer shall not employ a person in the former position of a dismissed injured employee unless the employer has informed the person that the dismissed employee may be entitled to be reinstated to the position under this Part.

Penalty: $1,000.

Industrial Arbitration (Workers Compensation) Amendment 1987

SCHEDULE 1— continued

AMENDMENTS TO THE INDUSTRIAL ARBITRATION ACT 1940 IN
RESPECT OF THE PROTECTION OF INJURED EMPLOYEES—

continued

Continuity of service of reinstated employee

154i. (1) If an employee is reinstated to a position under this

Part, the dismissal and subsequent reinstatement of the employee shall not, for any purpose, be regarded as interrupting or otherwise affecting the continuity of the service by the employee with the employer.

(2) The period between dismissal and reinstatement shall not be taken into account in calculating for any purpose the period of service of the employee with the employer.

Other provisions not affected

154J. (1) This Part does not affect any other rights of a

dismissed employee under this or any other Act or under any
award, agreement or contract of employment.

(2) No contract or agreement, made or entered into before or after the commencement of this section, shall operate to annul, vary or exclude any of the provisions of this Part.

Regulations

154K. (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Part is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Part.

(2) A regulation may create an offence punishable by a penalty not exceeding $500.

7   Act No. 77

Industrial Arbitration (Workers Compensation) Amendment 1987

SCHEDULE 2

(Sec. 3)

AMENDMENTS TO THE INDUSTRIAL ARBITRATION ACT 1940 CONCERNING THE SPECIAL CRIMINAL JURISDICTION OF THE

INDUSTRIAL COMMISSION AND INDUSTRIAL MAGISTRATES

(1) Part III. Division 9—

At the end of Part III, insert:

DIVISION 9—Special criminal jurisdiction of commission

Interpretation

39. In this Division—

"criminal proceeding" means a proceeding for any of the

following offences:

An offence against the Occupational Health and Safety Act

1983 or the regulations under that Act.

An offence against the Workers Compensation Act 1987 or

the regulations under that Act.

Any other offence which an Act provides may he prosecuted

before the commission.

Jurisdiction of commission

(1) The jurisdiction of the commission includes the power to hear and determine criminal proceedings.

40.

(2) That jurisdiction may be exercised only by a judicial member of the commission.

Powers of commission in criminal proceedings

For the purposes of hearing and determining a criminal proceeding, the commission shall have and may exercise all the powers, authorities, duties and functions of an industrial magistrate in relation to such a proceeding.

41.

Industrial Arbitration (Workers Compensation) Amendment 1987

SCHEDULE 2—continued

AMENDMENTS TO THE INDUSTRIAL ARBITRATION ACT 1940 CONCERNING THE SPECIAL CRIMINAL JURISDICTION OF THE INDUSTRIAL COMMISSION AND INDUSTRIAL MAGISTRATES—

continued

Appeal etc.

(1) An appeal lies to the commission in court session from any order of the commission in a criminal proceeding imposing a penalty, ordering the payment of a penalty or ordering that the proceeding be dismissed for any reason.

42.

(2) The commission may. on application by any party to a criminal proceeding, state a case for the opinion of the commission in court session, setting forth the facts and the grounds for any conviction made by the commission.

(3) Section 120 applies to an appeal from an order of. and the stating of a case by. the commission in a criminal proceeding to the commission in court session in the same way as it applies to an appeal from an order of, and the stating of a case by. an industrial magistrate to the commission.

Rules of evidence

Without limiting the operation of any other provision of

this Division, the commission shall be bound by the rules of
evidence in the exercise of its jurisdiction under this Division.

43.

(2) Section 126 (Industrial tnagistrate)-

Section 126 (3)-

After section 126 (2). insert: 

(3) The provisions of this Act and the regulations relating to proceedings before an industrial magistrate and to appeals from, and the stating of a case by, an industrial magistrate to the commission apply in respect of proceedings before an industrial magistrate for any of the following offences:

An offence against the Occupational Health and Safety Act 1983

or the regulations under that Act.

An offence against the Workers Compensation Act 1987 or the

regulations under that Act.

9   Act No. 77

Industrial Arbitration (Workers Compensation) Amendment 1987

SCHEDULE 2—continued

AMENDMENTS TO THE INDUSTRIAL ARBITRATION ACT 1940 CONCERNING THE SPECIAL CRIMINAL JURISDICTION OF THE INDUSTRIAL COMMISSION AND INDUSTRIAL MAGISTRATES—

continued

Any other offence which an Act provides may be prosecuted

before an industrial magistrate.