Return to Work Act 2014 (SA)

South Australia

Return to Work Act 2014

An Act to provide for the recovery, return to work and support of workers in relation to work injuries; to repeal the Workers Rehabilitation and Compensation Act 1986; and for other purposes.

The Parliament of South Australia enacts as follows:

Part 1Preliminary1Short title

This Act may be cited as the Return to Work Act 2014.

3Objects of Act

(1)
The object of this Act is to establish a scheme that supports workers who suffer injuries at work and that has as its primary objective to provide early intervention in respect of claims so as to ensure that action is taken to support workers—
(a)
in realising the health benefits of work; and
(b)
in recovering from injury; and
(c)
in returning to work (including, if required, after retraining); and
(d)
in being restored to the community when return to work is not possible.
(2)
In connection with subsection (1), the other objectives that apply with respect to this Act are—
(a)
to ensure that workers who suffer injuries at work receive high‑quality service, are treated with dignity, and are supported financially; and
(b)
to ensure that employers' costs are contained within reasonable limits so that the impact of work injuries on South Australian businesses is minimised; and
(c)
to provide a reasonable balance between the interests of workers and the interests of employers; and
(d)
to reduce the overall social and economic cost of work injuries to the State and to the community; and
(e)
to support activities that are aimed at reducing the incidence of work injuries; and
(f)
to reduce disputation when workers are injured at work by improving the quality of decision-making and by reducing adversarial contests to the greatest possible extent.
(3)
A person exercising judicial, quasi‑judicial or administrative powers must interpret this Act in the light of its objects and these objectives without bias towards the interests of employers on the one hand, or workers on the other.
(4)
The Corporation, the worker and the employer from whose employment a work injury arises must seek to achieve an injured worker's return to work (taking into account the objects and requirements of this Act).

4Interpretation

(1)
In this Act, unless the contrary intention appears—
actuary means a Fellow or Accredited Member of the Institute of Actuaries of Australia;
Advisory Committee means the committee established under Part 11;
apprentice includes—
(a)
a trainee within the meaning of the South Australian Skills Act 2008; and
(b)
a person undertaking training in a scheme approved by the Corporation for the purposes of this definition,
and apprenticeship has a corresponding meaning;
authorised officer means a person who is authorised by the Corporation to exercise the powers of an authorised officer under this Act;
average premium rate means the average rate for all premiums declared under Part 9 Division 4 in relation to a particular financial year when viewed as a percentage of remuneration expected by the Corporation to be paid by all employers (other than self‑insured employers) during that financial year;
average weekly earnings, in relation to a worker, means the worker's average weekly earnings determined in accordance with section 5;
the board means the board of management of the Corporation;
business day means any day except Saturday, Sunday or a public holiday;
child, in relation to a deceased worker, includes a person in relation to whom the worker stood, at the date of death, in loco parentis;
close personal relationship means the relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis, but does not include—
(a)
the relationship between a legally married couple; or
(b)
a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind;
Note—
Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.
compensation means any monetary benefit payable under this Act (other than under Part 5);
consequential mental harm means mental harm that is a consequence of bodily injury to the person suffering the mental harm;
Consumer Price Index or CPI means the Consumer Price Index (All groups index for Adelaide) published by the Australian Bureau of Statistics;
contract of service means—
(a)
a contract under which 1 person (the worker) is employed by another (the employer); or
(b)
a contract, arrangement or understanding under which 1 person (the worker) works for another in prescribed work or work of a prescribed class; or
(c)
a contract of apprenticeship; or
(d)
a contract, arrangement or understanding under which a person (the worker)—
(i)
receives on-the-job training in a trade or vocation from another (the employer); and
(ii)
is during the period of that training remunerated by the employer;
Corporation means the Return to Work Corporation of South Australia;
corresponding law means a law—
(a)
of the Commonwealth; or
(b)
of a State (other than this State) or a Territory of the Commonwealth; or
(c)
of another country,
that corresponds to this Act or that is prescribed by the regulations for the purposes of this definition;
current work capacity—see section 36;
damages means damages for injury or loss sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker's employer (or a person who is vicariously liable for the acts of the worker's employer), or another person, to pay damages to or in relation to—
(a)
the worker; or
(b)
if the injury results in the worker's death—a dependant of the deceased worker,
but does not include—
(c)
a sum required or authorised to be paid under an award or industrial agreement; or
(d)
a sum payable under a superannuation scheme or any life or other insurance policy; or
(e)
any amount paid in respect of costs incurred in connection with legal proceedings; or
(f)
damages of a class excluded from the ambit of this definition by the regulations;
dependant, in relation to a deceased worker, means a relative of the worker who, at the time of the worker's death—
(a)
was wholly or partially dependent for the ordinary necessities of life on earnings of the worker; or
(b)
would, but for the worker's injury, have been so dependent,
and includes a posthumous child of the worker; and dependent has a corresponding meaning;
designated weekly earnings means designated weekly earnings determined under section 39;
disease includes—
(a)
any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development; and
(b)
any injury to which section 9 applies;
domestic partner—a person is the domestic partner of a worker if the person lives with the worker in a close personal relationship and—
(a)
the person—
(i)
has been so living with the worker continuously for the preceding period of 3 years; or
(ii)
has during the preceding period of 4 years so lived with the worker for periods aggregating not less than 3 years; or
(iii)
has been living with the worker for a substantial part of a period referred to in subparagraph (i) or (ii) and the Corporation considers that it is fair and reasonable that the person be regarded as the domestic partner of the worker for the purposes of this Act; or
(b)
a child, of whom the worker and the person are the parents, has been born (whether or not the child is still living);
educational institution means—
(a)
a secondary school; or
(b)
a trade or technical school; or
(c)
a college of advanced education, university or other institution at which tertiary education is provided; or
(d)
any other educational or training institution approved by the Corporation for the purposes of this definition;
employer means—
(a)
a person by whom a worker is employed under a contract of service, or for whom work is done by a worker under a contract of service (subject to any exclusion under subsection (7));
(b)
in relation to persons of whom the Crown is, under Schedule 1, the presumptive employer—the Crown;
(c)
in relation to persons of whom any other person is, by virtue of a provision of this Act, the presumptive employer—that other person,
and includes a former employer and the legal personal representative of a deceased employer;
employment includes—
(a)
work done under a contract of service; and
(b)
the work of a self-employed person to whom the Corporation has extended the protection of this Act; and
(c)
the work of persons of whom the Crown is, under Schedule 1, the presumptive employer; and
(d)
attendance by a worker at a place of pick-up;
evidentiary material means any document, object or substance of evidentiary value that is relevant to proceedings before the Tribunal and includes any document, object or substance that should, in the opinion of the Tribunal, be produced for the purpose of enabling the Tribunal to determine whether or not it has evidentiary value;
Federal minimum wage—see subsection (8);
foreign law means any law except a law of this State;
health practitioner means—
(a)
a person who is registered under the Health Practitioner Regulation National Law (other than as a student) and is—
(i)
a medical practitioner; or
(ii)
a dentist; or
(iii)
a psychologist; or
(iv)
an optician; or
(v)
a physiotherapist; or
(vi)
a chiropractor; or
(vii)
a podiatrist; or
(viii)
an occupational therapist; or
(ix)
an osteopath; or
(b)
a speech pathologist who is registered by The Speech Pathology Association of Australia Limited; or
(c)
a person of a class prescribed by the regulations for the purposes of this definition;
Impairment Assessment Guidelines means the guidelines published under section 22;
independent medical adviser means an independent medical adviser appointed under Part 8;
industrial association means—
(a)
an association registered under the Fair Work Act 1994; or
(b)
an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or
(c)
the United Trades and Labor Council (trading as SA Unions); or
(d)
the Australian Mines and Metals Association; or
(e)
Self Insurers of South Australia Inc; or
(f)
South Australian Employers' Chamber of Commerce and Industry Inc (trading as Business SA); or
(g)
an association, society or body formed to represent, protect or further the interests of employers or employees;
industry includes any business or activity in which workers are employed;
injured worker—an injured worker is any worker who has suffered an injury (or, where the context admits, has died);
injury, in relation to a worker, means—
(a)
any physical or mental injury including—
(i)
loss, deterioration or impairment of a limb, organ or part of the body, or of a physical, mental or sensory faculty; or
(ii)
a disease; or
(iii)
disfigurement; or
(b)
where the context admits—the death of the worker,
and includes an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury;
legal personal representative—see subsection (13);
local government corporation means—
(a)
a council under the Local Government Act 1999; or
(b)
the Local Government Association of South Australia; or
(c)
any other body—
(i)
established for local government purposes; and
(ii)
prescribed for the purposes of this definition;
medical practitioner means a person registered under the Health Practitioner Regulation National Law to practice in the medical profession (other than as a student);
medical services means—
(a)
attendance, examination or treatment by a health practitioner (including the obtaining of a certificate or report); or
(b)
any diagnostic examination or test required for the purposes of treatment by a health practitioner; or
(c)
any services of a class prescribed for the purposes of this definition;
mental harm means impairment of a person's mental condition;
motor accident damages means—
(a)
damages to which Part 4 of the Motor Vehicles Act 1959 applies; or
(b)
damages to which the law of another State or a Territory of the Commonwealth that corresponds to Part 4 of the Motor Vehicles Act 1959 applies;
no current work capacity—see section 36;
non-economic loss means—
(a)
pain and suffering;
(b)
loss of amenities of life;
(c)
loss of expectation of life;
(d)
disfigurement;
(e)
any other loss or detriment of a non-economic nature;
notional weekly earnings in relation to a worker means—
(a)
the worker's average weekly earnings; or
(b)
where an adjustment has been made under this Act to take account of changes in levels of earnings, the value of money or remuneration (including under section 45, 46 or 60) or other relevant factors (or 1 or more of these)—the worker's average weekly earnings as so adjusted but not so as to exceed in any case twice State average weekly earnings;
officer of the Corporation includes an employee of the Corporation;
orphan child means a child whose natural or adoptive parents are dead and includes a child, 1 of whose natural or adoptive parents is dead and who has no reasonable prospect of being supported by the surviving natural or adoptive parent;
parent, in relation to a deceased worker, includes a person who stood in loco parentis to the worker at the time of the worker's death;
permanent impairment compensation means compensation for permanent impairment under Part 4 Division 6 or Division 7;
permanent impairment matter means any of the following:
(a)
whether an impairment suffered by a worker is permanent;
(b)
the extent to which a permanent impairment suffered by a worker is capable of being accurately assessed;
(c)
the extent to which a permanent impairment suffered by a worker is attributable to a previous injury or a pre‑existing condition;
(d)
the degree of whole person impairment suffered by a worker;
physical injury means an injury other than a psychiatric injury;
place of employment means a place where a worker is required to carry out duties of employment and, if the place is a building, includes land within the external boundaries of the land on which the building is situated;
premises means—
(a)
a building, structure or place (including an aircraft, ship or vehicle); or
(b)
a part of premises;
prescribed allowance, in relation to the earnings of a worker, means any amount received by the worker from an employer by way of an allowance or benefit prescribed for the purposes of this definition;
President means the President of the Tribunal;
presidential member means a presidential member of the Tribunal;
psychiatric injury means pure mental harm;
pure mental harm means mental harm other than consequential mental harm;
recognised health practitioner means—
(a)
a medical practitioner; or
(b)
in relation to injuries of a particular kind—a health practitioner who is recognised by the Corporation (in a manner determined by the Corporation) as having specialised knowledge of, and experience in the treatment of, injuries of that kind;
recovery/return to work plan—see section 25;
recovery/return to work services—see section 24;
Registrar means the Registrar of the Tribunal;
relative, in relation to a deceased worker, means a spouse, domestic partner, parent, grandparent, step-parent, child, grandchild, stepchild, brother, sister, stepbrother, stepsister, half-brother or half-sister of the worker;
repealed Act means the Workers Rehabilitation and Compensation Act 1986 repealed by this Act;
residence in relation to a worker includes a place—
(a)
at which the worker resides in accordance with the terms of the worker's employment or at the request of the employer; or
(b)
at which it is necessary or convenient for the worker to reside temporarily for the purposes of employment;
reviewable decision means a decision that is reviewable under section 97;
RTWSA premium order means a RTWSA premium order published under Part 9 Division 4 Subdivision 4;
RTWSA premium provisions means the RTWSA premium provisions published under Part 9 Division 4 Subdivision 2;
SACFS means the South Australian Country Fire Service;
SAMFS means the South Australian Metropolitan Fire Service;
self-employed worker means a person to whom the Corporation has extended the protection of this Act pursuant to section 175;
self-insured employer means an employer who is registered by the Corporation as a self‑insured employer under Part 9 Division 1;
seriously injured worker—see Part 2 Division 4;
ship includes a boat, vessel or craft;
South Australian ship means a ship—
(a)
that is registered in the State; or
(b)
that is owned or under charter by the Crown; or
(c)
that is owned or under charter by a body corporate or other person—
(i)
whose principal office or place of business is in the State; or
(ii)
whose principal office or place of business with respect to the control or management of the ship is in the State;
spouse—a person is the spouse of another if they are legally married;
the State includes the territorial waters of the State;
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited, whether or not the work is available, having regard to the following:
(a)
the nature of the worker's incapacity and previous employment;
(b)
the worker's age, education, skills and work experience;
(c)
the worker's place of residence;
(d)
medical information relating to the worker that is reasonably available, including in any medical certificate or report;
(e)
if any recovery/return to work services are being provided to or for the worker;
(f)
the worker's recovery/return to work plan, if any;
Supreme Court means the Supreme Court of South Australia;
therapeutic appliance means—
(a)
spectacles or contact lenses; or
(b)
a hearing aid; or
(c)
false teeth; or
(d)
a prosthesis; or
(e)
a crutch or wheelchair; or
(f)
any other appliance or aid for reducing the extent of an injury or enabling a person to overcome in whole or part the effects of an injury;
trauma means an event, or series of events, out of which a work injury arises;
Tribunal means the South Australian Employment Tribunal established under the South Australian Employment Tribunal Act 2014;
unrepresentative injury means an injury arising from an attendance mentioned in section 7(5) or a journey mentioned in section 7(8)(b);
week means any period of 7 consecutive days;
work injury means an injury that arises from employment under section 7;
worker means—
(a)
a person by whom work is done under a contract of service (whether or not as an employee);
(b)
a person who is a worker by virtue of Schedule 1;
(c)
a self-employed worker,
and includes a former worker and the legal personal representative of a deceased worker;
working day in relation to a worker means a day on which the worker works or would, if not incapacitated for work, be normally required to work in the course of employment.
(2)
A member of the crew of a fishing boat who is remunerated by a share in profits or gross receipts obtained by working the boat is not a worker for the purposes of this Act.
(3)
If a worker has no fixed place of employment, the worker's place of employment on a particular working day is the place at which, or the area in which, the worker works or is required to work on that working day.
(4)
Where in a prescribed industry or in prescribed circumstances a person (the principal) contracts with another person (the contractor) for the performance by the contractor of work undertaken by the principal, the principal will, for the purposes of this Act, be taken to be the employer of workers employed by the contractor.
(5)
The regulations may exclude (either absolutely or subject to limitations or conditions stated in the regulations) specified classes of workers wholly or partially from the application of this Act.
(6)
A regulation under subsection (5) may only be made after consultation with the Advisory Committee.
(7)
The regulations may, in prescribing work or work of a specified class for the purposes of paragraph (b) of the definition of contract of service in subsection (1)—
(a)
designate a person, or persons of a specified class, as the presumptive employer of a worker who is within the ambit of the relevant prescription;

(b)
exclude a person who would otherwise be the employer of such a worker from the definition of employer in subsection (1).
(8)
For the purposes of this Act, a reference to the Federal minimum wage is a reference to a wage applying under a national minimum wage order under Part 2-6 of the Fair Work Act 2009 of the Commonwealth prescribed by the regulations under this subsection.
(9)
For the purposes of this Act, a reference to State average weekly earnings is a reference to the amount last published before the relevant day by the Australian Bureau of Statistics as an estimate of Average Weekly Earnings for Ordinary Hours of Work for each Full‑time Employed Adult Male Unit in this State.
(10)
For the purposes of this Act—
(a)
total incapacity for work is the incapacity for work that is represented by a worker having no current work capacity within the meaning of this Act; and
(b)
partial incapacity for work is the incapacity for work that is represented by a worker having a current work capacity within the meaning of this Act.
(11)
For the purposes of this Act, the date on which an incapacity for work first occurs will be taken to be the first day in respect of which the worker has an entitlement to a payment under Part 4 Division 4 Subdivision 2 on account of that incapacity.
(12)
Any period under this Act that relates to a specified number of weeks from the date on which an incapacity for work first occurs will be taken to include (for the purposes of calculating that period) any time when the relevant worker was not in fact incapacitated for work.
(13)
For the purposes of this Act, a person is the legal personal representative of a deceased worker if the person is—
(a)
a person who is entitled at law to administer the estate of the deceased worker; or
(b)
a person who is authorised by the Tribunal (on application made under this subsection) to act under this Act as a legal personal representative of the deceased worker.
(14)
For the purposes of this Act, 2 or more workplaces in close proximity may, if the Corporation so determines, be regarded as a single workplace.
(15)
A reference in a provision of this Act to a designated form is a reference to a form designated for the purposes of that provision by the Corporation from time to time by notice in the Gazette (and for the purposes of this Act the Corporation may specify information that may be provided in a specified form, not being in the nature of a written or printed form, which will satisfy a requirement as to the provision of information in a designated form).
(16)
A reference in a provision of this Act to a designated manner is a reference to a manner designated for the purposes of that provision by the Corporation from time to time by notice in the Gazette.
(17)
If a sum of money fixed by this Act is followed by the word "(indexed)", that signifies that the amount is to be adjusted as at 1 January in each year so that the adjusted sum bears to the sum fixed by Parliament the same proportion as the Consumer Price Index for the September quarter of the immediately preceding year bears to the Consumer Price Index for the September quarter of the year immediately preceding the year in which the law fixing the sum took effect, with the amount so adjusted being rounded up under a scheme prescribed by the regulations.

5Average weekly earnings

(1)
Subject to this section, the average weekly earnings of an injured worker is the average weekly amount that the worker earned during the period of 12 months preceding the relevant date in relevant employment.
(2)
For the purposes of subsection (1), relevant employment is constituted by—
(a)
employment with the employer from whose employment the injury arose; and
(b)
if the worker was, at the time of the occurrence of the injury, in the employment of 2 or more employers, employment with each such employer.
(3)
For the purposes of this section, any amount paid while a worker was on annual, sick or other leave will be taken to be earnings.
(4)
If during the period of 12 months before the relevant date the worker had changed the circumstances of his or her employment from working casually or seasonally to working in permanent employment (whether on a full‑time or part‑time basis) and the worker was in that permanent employment on the relevant date, the worker's average weekly earnings may be determined by reference to the average weekly amount that the worker earned during the period of that permanent employment rather than during the period of 12 months preceding the relevant date, unless to do so would disadvantage the worker.
(5)
If a worker voluntarily (otherwise than by reason of an incapacity resulting from a work injury)—
(a)
reduces the normal number of hours worked; or
(b)
alters the nature of the work performed with the result that a reduction occurs in the worker's weekly earnings,
any period before the reduction or alteration takes effect will be disregarded for the purposes of determining average weekly earnings.
(6)
In addition, if by reason of the shortness of time during which the worker has been in employment, the terms of the worker's employment or for any other reason, it is not possible to arrive at a fair average, the worker's average weekly earnings may be determined by reference to the average weekly amount being earned by other persons in the same employment with the same employer who perform similar work at the same grade as the worker or, if there is no person so employed, by other persons in the same class of employment who perform similar work at the same grade as the worker.
(7)
If a worker is a contractor rather than an employee, the worker's average weekly earnings will be determined by reference to the rate of pay that the worker would have received if the worker had been working as an employee and, if there is an award or industrial agreement applicable to the class and grade of work in which the worker was engaged, the worker's average weekly earnings will be determined by reference to that award or industrial agreement.
(8)
If—
(a)
an employer is a body corporate; and
(b)
the worker is a director as well as an employee of the employer,
the worker's average weekly earnings will be determined by reference to the remuneration (calculated on a weekly basis) last reported in a return from the employer to the Corporation under Part 9 Division 7 (unless the Corporation determines that there is good cause not to apply this subsection in the circumstances of the particular case).
(9)
If because of a work injury or the gradual onset of a work injury it appears that the level of earnings of an injured worker prior to the relevant date were affected by the injury, the average weekly earnings of the worker must be set at an amount that fairly represents the weekly amount that the worker would have been earning if the level of earnings had not been so affected.
(10)
The average weekly earnings of an injured worker who—
(a)
was not a full‑time worker immediately before the relevant date; and
(b)
immediately before the relevant date had been seeking full‑time employment; and
(c)
had been predominantly during the preceding 18 months a full‑time worker,
will be taken to be the average weekly earnings of the worker while employed in full‑time employment during the period of 18 months preceding the relevant date.
(11)
If a worker who suffers a permanent incapacity (whether total or partial) is under the age of 21 years, the average weekly earnings of the worker must be determined by applying the rate of pay that would have been payable to the worker had the worker been 21 years old and if a worker who suffers a permanent incapacity (whether total or partial) is an apprentice, the average weekly earnings of the worker must be determined by applying the rate of pay that would have been payable to the worker had the worker completed the apprenticeship (and this determination may have effect (if not before) when it is determined that a worker has a permanent incapacity under a redetermination under section 31).
(12)
For the purposes of determining the average weekly earnings of a worker—
(a)
any component of the worker's earnings attributable to overtime will be disregarded if, at the relevant date, the worker had no reasonable expectation to work overtime within the foreseeable future because of a change in employment arrangements or work practices, or other relevant factors, announced, introduced or occurring on or before the relevant date, but otherwise payments attributable to overtime will be taken into account; and
(b)
to the extent that a worker has worked overtime that is to be taken into account, the component for overtime will be an amount calculated as follows:

where
C is the amount of the component
A is the total of the amounts paid or payable to the worker for overtime during the period used to calculate the average weekly earnings of the worker under a preceding subsection (the relevant period)
B is the number of weeks in the relevant period during which the worker worked or was on annual, sick or other paid leave.
(13)
For the purposes of determining the average weekly earnings of a worker—
(a)
any amount otherwise payable to the worker that has been the subject of a voluntary salary sacrifice for superannuation purposes by the worker will be taken into account as earnings; and
(b)
any non‑cash benefit of a prescribed class provided to the worker by an employer—
(i)
will be taken into account if the worker does not retain the benefit of the non‑cash benefit (and valued after taking into account any principles specified by this Act or prescribed by the regulations); and
(ii)
will not be taken into account if the worker retains the benefit of the non‑cash benefit.
(14)
Despite a preceding subsection, the following will be disregarded for the purposes of determining the average weekly earnings of a worker:
(a)
any contribution paid or payable by an employer to a superannuation scheme for the benefit of the worker;
(b)
any prescribed allowances.
(15)
Despite a preceding subsection—
(a)
if an injured worker's remuneration was, at the relevant date, covered by an award or industrial agreement, the worker's average weekly earnings will not be less than the weekly wage to which the worker was then entitled under the award or industrial agreement; and
(b)
if, but for this paragraph, the average weekly earnings of a worker (not being a self‑employed worker) would be less than the Federal minimum wage applying in relation to the worker (adjusted, in the case of a worker who was working at the relevant date on a part‑time basis, in accordance with the regulations so as to provide a pro‑rata amount), the average weekly earnings will be fixed at the Federal minimum wage (or, if relevant, the Federal minimum wage as so adjusted); and
(c)
the average weekly earnings of a worker will in no case be fixed at more than twice State average weekly earnings.
(16)
For the purposes of this section—
(a)
a reference to the relevant date is a reference to the date on which the relevant injury occurs; and
(b)
a reference to a worker who is working on a part‑time basis is a reference to a worker who, after taking into account the usual work patterns of workers in employment of the kind in which the worker is working at the relevant date, is not working the number of hours per week that can be taken to constitute full‑time employment.

6Act to bind Crown

This Act binds the Crown in right of the State and also, so far as the legislative power of the State extends, in all its other capacities.

Part 2Key principles, concepts and requirementsDivision 1Connection with employment7Injury must arise from employment

(1)
This Act applies to an injury if (and only if) it arises from employment.
(2)
Subject to this section, an injury arises from employment if—
(a)
in the case of a physical injury—the injury arises out of or in the course of employment and the employment was a significant contributing cause of the injury; and
(b)
in the case of a psychiatric injury—
(i)
the psychiatric injury arises out of or in the course of employment and the employment was the significant contributing cause of the injury; and
(ii)
the injury did not arise wholly or predominantly from any action or decision designated under subsection (4).
(3)
In connection with the application of subsection (2) to an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury (a prescribed event)—
(a)
in the case of an injury other than a psychiatric injury—employment must be a significant contributing cause of the prescribed event; and
(b)
in the case of a psychiatric injury—
(i)
employment must be the significant contributing cause of the prescribed event; and
(ii)
the prescribed event must not arise wholly or predominantly from any action or decision designated under subsection (4),
and then the injury is only compensable to the extent of and for the duration of the relevant aggravation, acceleration, exacerbation, deterioration or recurrence.
(4)
The following are designated for the purposes of subsection (2)(b)(ii) and (3)(b)(ii):
(a)
reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss the worker or a decision of the employer not to renew or extend a contract of service;
(b)
a decision of the employer, based on reasonable grounds, not to award or provide a promotion, transfer or benefit in connection with the worker's employment;
(c)
reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment;
(d)
reasonable action taken in a reasonable manner under this Act affecting the worker.
(5)
For the purposes of this Act, a worker's employment includes—
(a)
attendance at the worker's place of employment on a working day but before the day's work begins in order to prepare, or be ready, for work; and
(b)
attendance at the worker's place of employment during an authorised break from work; and
(c)
attendance at the worker's place of employment but after work ends for the day while the worker is preparing to leave, or in the process of leaving, the place; and
(d)
attendance at an educational institution under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; and
(e)
attendance at a place to receive a medical service, to obtain a medical report or certificate (or to be examined for the purpose), to receive recovery/return to work services or for the purposes of a recovery/return to work plan, or to apply for, or receive, compensation for a work injury.
(6)
Any injury attributable to surgery or other treatment or service performed with due care and skill by a person professing to have particular skills and undertaken or provided while attending at a place referred to in subsection (5)(e) will be taken to constitute part of the original work injury.
(7)
An injury does not arise from employment if it arises out of or in the course of the worker's involvement in a social or sporting activity, except where the activity forms part of the worker's employment or is undertaken at the direction or request of the employer.
(8)
An injury that arises out of or in the course of a journey arises from employment if (and only if)—
(a)
the journey is undertaken in the course of carrying out duties of employment; or
(b)
the journey is between—
(i)
the worker's place of residence and place of employment; or
(ii)
the worker's place of residence or place of employment and—
(A)
an educational institution the worker attends under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; or
(B)
a place the worker attends to receive a medical service, to obtain a medical report or certificate (or to be examined for that purpose), to receive recovery/return to work services or for the purposes of a recovery/return to work plan, or to apply for, or receive, compensation for a compensable injury,
and there is a real and substantial connection between the employment and the journey being undertaken at the time of the accident out of which the injury arises.
(9)
However, the fact that a worker has an accident in the course of a journey to or from work does not in itself establish a sufficient connection between the accident and the employment for the purposes of subsection (8)(b).
(10)
The journey between places mentioned in subsection (8)(b) must be a journey by a reasonably direct route but may include an interruption or deviation if it is not, in the circumstances of the case, substantial, and does not materially increase the risk of injury to the worker.
(11)
If—
(a)
a worker's injury consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a pre-existing coronary heart disease; and
(b)
the injury arises in the course of employment,
it will be presumed, in the absence of proof to the contrary, that the employment was a significant contributing cause of the injury.

8Effect of misconduct etc

(1)
A worker who is acting in connection with, and for the purposes of, the employer's trade or business is presumed to be acting within his or her employment despite the fact that—
(a)
the worker is acting in contravention of a statutory or other regulation applicable to the employment; or
(b)
the worker is acting without, or in contravention of, instructions from the employer.
(2)
However, a worker will not be entitled to receive any services or benefits under this Act in relation to an injury if—
(a)
the worker is guilty of misconduct or acts in contravention of instructions from the employer during the course of an attendance under section 7(5); or
(b)
it is established on the balance of probabilities that the injury is wholly or predominantly attributable to—
(i)
serious and wilful misconduct on the part of the worker; or
(ii)
the influence of alcohol or a drug voluntarily consumed by the worker (other than a drug lawfully obtained and consumed in a reasonable quantity by the worker).
(3)
Subsection (2)(a) does not apply in a case of death or permanent total incapacity for work and subsection (2)(b) does not apply in the case of death or serious and permanent injury.

9Evidentiary provision

(1)
Subject to this section, an injury is not compensable under this Act unless it is established on the balance of probabilities that it arises from employment.
(2)
Subsection (1) operates—
(a)
subject to the qualification that if a worker suffers an injury of a kind referred to in the first column of Schedule 2 and has been employed in work of a type referred to in the second column of Schedule 2 opposite the injury, the worker's injury is presumed, in the absence of proof to the contrary, to have arisen from employment; and
(b)
subject to Schedule 3.
(3)
If a worker retires or is retired from employment on account of age or ill‑health and the worker makes a claim for noise induced hearing loss after the expiration of 2 years from the date of the retirement, subsection (2)(a) does not apply in relation to that claim.
(4)
A regulation made on the recommendation, or with the approval, of the Corporation or the Advisory Committee may—
(a)
extend the operation of subsection (2)(a) to injuries and types of work prescribed in the regulation;
(b)
extend the operation of Schedule 3 to an injury and corresponding qualifying period prescribed in the regulation.

Division 2Connection with State10Territorial application of Act

(1)
This Act applies to a worker's employment if (and only if) that employment is connected with this State.
(2)
The fact that a worker is outside this State when an injury occurs does not prevent an entitlement to compensation arising under this Act in respect of employment that is connected with this State.
(3)
A worker's employment is connected with—
(a)
the State in which the worker usually works in that employment; or
(b)
if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or
(c)
if no State or no one State is identified by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located.

(4)
In the case of a worker working on a ship, if no State or no one State is identified by subsection (3), a worker's employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than 1 State) the State in which the ship most recently became registered.
(5)
If no State is identified by subsection (3) or (if applicable) (4), a worker's employment is connected with this State if—
(a)
a worker is in this State when the injury occurs; and
(b)
there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.
(6)
In deciding whether a worker usually works in a State—
(a)
regard must be had to the worker's work history with the employer over the preceding 12 months and the intentions of the worker and employer; but
(b)
regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.
(7)
Subject to subsection (6), in determining whether a worker usually works in a State or is usually based in a State for the purposes of employment, regard must be had to any period during which a worker works in a State or is in a State for the purposes of employment whether or not under the statutory workers compensation scheme of that State the person is regarded as a worker or as working or employed in that State.
(8)
Compensation under this Act does not apply in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies to the worker's employment.
(9)
In this section—
ship means any kind of vessel used in navigation by water, however propelled or moved, and includes—
(a)
a barge, lighter, or other floating vessel; and
(b)
an air-cushion vehicle, or other similar craft,
used wholly or primarily in navigation by water;
State includes a Territory and, in a geographical sense, a State's or Territory's relevant adjacent area as described in Schedule 4.

11Determination of State with which worker's employment is connected in proceedings under this Act

(1)
If the question of whether this State is connected with a worker's employment arises in proceedings in the Tribunal or a court in relation to a claim for compensation under this Act, the Tribunal or court must—
1. (a)
  determine the State with which the worker's employment is connected in accordance with section 10; and
2. (b)
  cause that determination to be entered in its records.
(2)
The Tribunal must, in determining a question under subsection (1), be constituted of 1 or more presidential members and if the question arises in proceedings that are not before a presidential member (or presidential members) then the question is to be referred, on an interlocutory basis, to a presidential member of the Tribunal.
(3)
Subsection (1) does not apply if there is a determination that is to be recognised under section 12.

12Recognition of previous determinations

(1)
If a determination of the State with which a worker's employment is connected has been made—
(a)
by the Tribunal or a court under section 11; or
(b)
by a designated court under a provision of a law that corresponds with section 11, or under another provision of a law prescribed by the regulations for the purposes of this provision; or
(c)
by a court of this State or another State in the course of proceedings that are relevant to the application of this Act or a corresponding law, or that relate to a claim for compensation or damages,
the State so determined is to be recognised for the purposes of this Act as the State with which the worker's employment is connected.
(2)
This section does not prevent any appeal relating to any such determination and if the determination is altered on appeal, the altered determination is to be recognised under subsection (1).
(3)
In this section—
designated court means—
(a)
the Supreme Court of a State in which a corresponding law is in force; or
(b)
a court, tribunal or other decision‑making body of a State in which a corresponding law is in force that is declared by the regulations to be a designated court for the purposes of this section;
State includes a Territory.

Division 3Fundamental principles, rights and obligations13The Corporation

(1)
The Corporation, in acting under and for the purposes of this Act, must—
(a)
adopt a service‑orientated approach that is focused on early intervention and the interests of workers and employers; and
(b)
seek to act professionally and promptly in everything that it does; and
(c)
be responsible and accountable in its relationships with others; and
(d)
without limiting a preceding paragraph, take reasonable steps to comply with any request made by a worker under section 15(2).
(2)
The Corporation must, in connection with subsection (1), develop and maintain plans or strategies that are designed to establish practices and procedures under which the specific circumstances of an injured worker and his or her employer will be addressed and with the objective of—
(a)
ensuring early and timely intervention occurs to improve recovery and return to work outcomes including after retraining (if required); and
(b)
achieving timely, evidence based decision-making that is consistent with the requirements of this Act; and
(c)
wherever possible, providing a face to face service where there is a need for significant assistance, support or services; and
(d)
ensuring regular reviews are taken in relation to a worker's recovery and, where possible, return to work; and
(e)
ensuring the active management of all aspects of a worker's injury and any claim under this Act; and
(f)
encouraging an injured worker and his or her employer to participate actively in any recovery and return to work processes; and
(g)
minimising the risk of litigation.
(3)
The policies and principles set out in this section do not give rise to substantive rights or liabilities (compared to rights or liabilities established or prescribed under other relevant provisions of this Act).

14Service standards

The Corporation must adopt and apply the service standards set out in Schedule 5 (but these standards do not, in themselves, give rise to substantive rights or liabilities (compared to rights or liabilities established or prescribed under other relevant provisions of this Act)).

15Workers

(1)
A worker who has suffered a work injury is entitled to expect—
(a)
early intervention by the Corporation in providing recovery and return to work services; and
(b)
the Corporation to actively manage the worker's injury and claim and to provide services in a manner consistent with the requirements of this Act; and
(c)
his or her employer to participate and cooperate in assisting the worker's recovery and return to work and to reasonably support the worker in receiving any benefit available under this Act.
(2)
A worker may reasonably request the Corporation to review the provision of any service to the worker under this Act or to investigate any circumstance where it appears that the worker's employer is not complying with any requirement of this Act as to the retention, employment or re‑employment of the worker.
(3)
A worker who has suffered a work injury must, in a manner consistent with the objects of this Act—
(a)
participate in all activities designed to enable the worker to recover and return to work as soon as is reasonably practicable; and
(b)
without limiting paragraph (a)—
(i)
participate and cooperate in the establishment of a recovery/return to work plan; and
(ii)
comply with obligations imposed on the worker by or under a recovery/return to work plan; and
(c)
ensure that the Corporation is provided with current medical certificates (in the designated form provided by recognised health practitioners) with respect to any incapacity for work for which weekly payments are being made to the worker under this Act so as to provide evidence to support the continuation of those payments; and
(d)
return to suitable employment when reasonably able to do so; and
(e)
take reasonable steps to mitigate any possible loss on account of the work injury.
(4)
Subsection (3)(a), (b) and (d) will not apply in relation to a seriously injured worker (who may decide the extent to which he or she will seek to participate in any processes designed to have the worker return to work).
(5)
This section does not give rise to substantive rights or liabilities (but nothing in this section detracts from rights or liabilities established or prescribed under other relevant provisions of this Act (including section 16)).

16Worker's duty to give notice of injury

(1)
If a worker suffers a work injury, notice of that injury must be given—
(a)
to the employer by whom the worker is employed at the time of the occurrence of the injury; or
(b)
if the worker is not in employment or is self-employed—to the Corporation.
(2)
Notice of an injury should be given—
(a)
if practicable within 24 hours after the occurrence of the injury but, if that is not practicable, as soon as practicable after the occurrence of the injury;
(b)
if the worker is not, immediately after the occurrence of the injury, aware of the injury—as soon as practicable after the worker becomes so aware;
(c)
if the worker dies without having become so aware or before it is practicable to give such a notice—as soon as practicable after the worker's death.
(3)
Notice of an injury—
(a)
may be given orally or in writing; and
(b)
should specify to the best of the knowledge, information and belief of the person giving the notice—
(i)
the day on which the injury occurred; and
(ii)
the place at which the injury occurred; and
(iii)
the nature of the injury; and
(iv)
the cause of the injury.
(4)
For the purposes of this section, notice of an injury will be taken to have been given to an employer if—
(a)
it is given to—
(i)
the employer at any place of business of the employer; or
(ii)
any person under whose supervision the worker was employed at the time of the injury; or
(iii)
any person designated for the purpose by the worker's employer; or
(b)
it is given to the employer in the manner prescribed by the regulations.
(5)
A person by whom a notice under this section is given orally must, at the request of the person to whom the notice is given, complete a written statement in a form determined by the Corporation.
(6)
Subject to subsection (8), if an employer (not being a self-insured employer) receives notice of an injury given or purportedly given under this section the employer must, within 5 business days after the receipt of the notice, send a copy of the notice to the Corporation.
Maximum penalty: $1 500.
(7)
If it appears from a notice under this section that the worker was not, at the date of the notice, in the employment of the employer from whose employment the injury arose, the Corporation must (where it is practicable to do so) send a copy of the notice to that employer.
(8)
The Corporation may, by notice in the Gazette—
(a)
exclude from the application of this section injuries of a class specified in the notice;
(b)
vary, in relation to cases of a specified class, the time at which an employer is required to report to the Corporation under this section.

17Employers

(1)
An employer of a worker who has suffered a work injury is entitled to expect—
(a)
early intervention by the Corporation in providing recovery and return to work services to the worker; and
(b)
the Corporation to act fairly and reasonably in a manner consistent with the requirements of this Act; and
(c)
support in managing claims and the provision of services available to the worker under this Act.
(2)
The employer of a worker who has suffered a work injury must, in a manner consistent with the objects of this Act, so far as is reasonably practicable—
(a)
support the worker in the worker's participation in activities designed to enable the worker to recover and return to work; and
(b)
without limiting paragraph (a)—
(i)
participate and cooperate in the establishment of any recovery/return to work plan that is required for the worker; and
(ii)
comply with obligations imposed on the employer by or under a recovery/return to work plan for the worker; and
(c)
take reasonable steps to mitigate any possible loss on account of the work injury.
(3)
This section does not give rise to substantive rights or liabilities (but nothing in this section detracts from rights or liabilities established or prescribed under other relevant provisions of this Act (including section 18)).

18Employer's duty to provide work

(1)
If a worker who has been incapacitated for work in consequence of a work injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer from whose employment the injury arose (the pre‑injury employer) must provide suitable employment for the worker (the employment being employment for which the worker is fit and, subject to that qualification and this section, so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was working immediately before the incapacity).
(2)
Subsection (1) does not apply if—
(a)
it is not reasonably practicable to provide employment in accordance with that subsection (and the onus of establishing that lies on the employer); or
(b)
the worker left the employment of that employer before the commencement of the incapacity for work; or
(c)
the worker terminated the employment after the commencement of the incapacity for work; or
(d)
new or other employment options have been agreed between the worker, the employer and the Corporation under section 25(10); or
(e)
the worker has otherwise returned to work with the pre‑injury employer or another employer.
(3)
Furthermore, if—
(a)
a worker who has been incapacitated for work in consequence of a work injury seeks employment with the pre‑injury employer consistent with the requirements of subsection (1); and
(b)
the worker, in seeking the employment—
(i)
by written notice to the employer—
(A)
confirms that he or she is ready, willing and able to return to work with the employer; and
(B)
provides information about the type of employment that the worker considers that he or she is capable of performing; and
(ii)
complies with any other requirements prescribed by the regulations; and
(c)
the employer fails, within a reasonable time, to provide suitable employment to the worker,
the worker may apply to the Tribunal for an order under subsection (5).
(4)
If an employer fails to provide suitable employment under subsection (3) within 1 month after the worker seeks such employment in accordance with that subsection (the prescribed period), the application by the worker to the Tribunal may be made within 1 month after the end of the prescribed period unless the Tribunal allows an extension of time.
(5)
If, on an application under subsection (3), the Tribunal is satisfied that it is not unreasonable for the employer to provide employment to the worker, the Tribunal must order the employer to provide to the worker employment specified by the Tribunal unless the Tribunal, in the exercise of its adjudicative function, determines otherwise.
(6)
A worker who makes an application under subsection (3) is entitled, subject to subsections (8) and (9) and to limits prescribed by the regulations, to an award against the relevant employer for the worker's reasonable costs of the proceedings before the Tribunal.
(7)
If on an application under subsection (3) the Tribunal declines to make an order in favour of the worker under subsection (5), the Corporation is liable, subject to subsection (8) and to limits prescribed by the regulations—
(a)
for the employer's reasonable costs of the proceedings before the Tribunal (unless those costs are covered by an award under subsection (9)(a)); and
(b)
for the costs payable to the worker under subsection (6).
(8)
Costs may only be awarded to cover—
(a)
the cost of representation by a legal practitioner or an officer or employee of an industrial association; and
(b)
costs of a kind authorised by the regulations that were reasonably incurred.
(9)
If the Tribunal is of the opinion that a worker acted unreasonably, frivolously or vexatiously in bringing or in relation to the conduct of proceedings under subsection (5), the Tribunal may—
(a)
decline to make an award of costs in favour of the worker and may (if it thinks fit) make an award of costs against the worker; or
(b)
reduce the amount of the award of costs to which the worker would otherwise have been entitled.
(10)
Subject to subsection (11), an award of costs to cover professional advice or assistance may, if the Tribunal considers appropriate, be made in favour of the person who provided the professional advice or assistance.
(11)
An award of costs to cover the cost of representation by an officer or employee of an industrial association are payable to the industrial association.
(12)
If—
(a)
the Tribunal orders an employer to provide employment to a worker under subsection (5); and
(b)
the employer fails to comply with that order; and
(c)
the worker applies to the Corporation for financial support under subsection (13),
the Corporation must, subject to subsection (14), provide financial support to the worker under subsection (13).
(13)
The financial support will be in the form of weekly payments that represent the weekly amounts that the worker would be expected to receive from the employer if the employer complied with the order of the Tribunal.
(14)
The Corporation is not required to make a payment under subsection (13) in respect of a failure on the part of the employer after the end of the period of 104 weeks from the date on which the incapacity for work referred to in subsection (3)(a) first occurred (the prescribed period) and any liability of the Corporation to provide financial support to the worker under subsection (13) ceases at the end of the prescribed period.
(15)
The Corporation may recover any amount paid to a worker under subsection (13), together with interest at the prescribed rate, as a debt from the employer in default.
(16)
Nothing in subsections (12) to (15) (inclusive)—
(a)
limits any other penalty or liability that may be imposed on the employer under this or any other Act or law on account of the employer's failure to comply with an order of the Tribunal; or
(b)
derogates from any obligation of the employer to pay wages to the worker under this or any other Act or law.
(17)
A reference in this section to suitable employment to be provided by a worker's employer includes employment in respect of which—
(a)
the number of hours each day or week that the worker performs work; or
(b)
the range of duties the worker performs,
is suitably increased in stages (in accordance with a recovery/return to work plan or otherwise).

19Payment of wages for alternative or modified duties

If a worker who has been incapacitated for work in consequence of a work injury undertakes alternative or modified duties under employment or an arrangement that falls outside the worker's contract of service for the employment from which the injury arose, the employer must pay an appropriate wage or salary in respect of those duties unless otherwise determined by the Corporation.

20Additional requirement with respect to termination of employment

(1)
If a worker has suffered a work injury, the employer from whose employment the injury arose must not terminate the worker's employment without first giving the Corporation and the worker at least 28 days notice of the proposed termination.
(2)
However, notice of termination is not required under this section if—
1. (a)
  the employment is properly terminated on the ground of serious and wilful misconduct; or
2. (b)
  the worker is neither participating in a recovery/return to work plan, nor receiving compensation, for the work injury; or
3. (c)
  the worker's rights to compensation for the injury have been exhausted or the time for making a claim for compensation has expired.
(3)
The burden of establishing that an employer terminated a worker's employment on the ground of serious and wilful misconduct lies on the employer.

Division 4Seriously injured workers21Seriously injured workers

(1)
This Act makes special provision in a number of places for seriously injured workers.
(2)
For the purposes of this Act, a seriously injured worker is a worker—
(a)
in the case of psychiatric injury—whose work injury or injuries have resulted in permanent impairment and the degree of whole person impairment has been assessed under Division 5 for the purposes of this Act to be 30% or more; or
(b)
in the case of physical injury—whose work injury or injuries have resulted in permanent impairment and the degree of whole person impairment has been assessed under Division 5 for the purposes of this Act to be 35% or more.
(3)
Pending an assessment of permanent impairment, the Corporation may on its own initiative, or must on application made by the worker in accordance with the regulations, make an interim decision to the effect that the worker will be taken to be a seriously injured worker under this Act if—
(a)
it is satisfied, or it appears, that the worker's injury or injuries have resulted or will result in permanent impairment; and
(b)
in the case of physical injury—it appears that the degree of whole person impairment is likely to be 35% or more; and
(c)
in the case of psychiatric injury—it appears that the degree of whole person impairment is likely to be 30% or more,
and the Corporation's decision will have effect under this Act in accordance with its terms.
(4)
An interim decision under subsection (3)—
(a)
must be made in accordance with any requirements or principles prescribed by the regulations; and
(b)
will have effect until—
(i)
an assessment of whole person impairment has been made and determined under Division 5; or
(ii)
it appears that, due to a material improvement in the worker's likely degree of whole person impairment, the worker's degree of whole person impairment is no longer likely to be—
(A)
in the case of physical injury—35% or more; or
(B)
in the case of psychiatric injury—30% or more.
(4a)
Before bringing an interim decision to an end under subsection (4)(b)(ii), the Corporation must—
(a)
give the worker at least 3 months written notice of its intention to bring the interim decision to an end under that subsection; and
(b)
give the worker a reasonable opportunity during that 3 month period to furnish information to satisfy the Corporation that it is appropriate for the interim decision to continue.
(5)
Unless or until a worker is assessed or determined to be a seriously injured worker as contemplated by this section, the worker will be taken not to be a seriously injured worker for the purposes of this Act.
(6)
However, if a worker is taken not to be a seriously injured worker and the worker at a later time is characterised as a seriously injured worker under subsection (2) or determined to be a seriously injured worker under subsection (3)—
(a)
the worker will be taken to have been a seriously injured worker from the date of the injury; and
(b)
the worker is entitled to be paid the amounts that would have constituted the worker's entitlements under this Act had the worker been taken to be a seriously injured worker from the date on which an incapacity for work in consequence of the relevant work injury first occurred after taking into account any amount already paid under this Act.
(6a)
If a seriously injured worker makes an election under section 56A, subsection (6)(b) does not apply on and after the day on which the election takes effect in relation to weekly payments under section 41 to which the worker would, but for the election, be entitled.
(7)
An amount paid under subsection (6)(b) will be increased by interest at the prescribed rate.
(8)
In assessing whether the relevant threshold under subsection (2)(a) or (b) (as the case requires) has been met—
(a)
impairment resulting from physical injury is to be assessed separately from impairment resulting from psychiatric injury; and
(b)
in assessing impairment resulting from physical injury or psychiatric injury, no regard is to be had to impairment that results from consequential mental harm; and
(c)
in assessing the degree of whole person impairment resulting from physical injury, no regard is to be had to impairment that results from a psychiatric injury or consequential mental harm; and
(d)
the relevant threshold under subsection (2)(a) or (b) is not met unless—
(i)
in the case of physical injury—the degree of whole person impairment resulting from the injury is at least 35%; or
(ii)
in the case of psychiatric injury—the degree of whole person impairment resulting from psychiatric injury is at least 30%.
(9)
The Corporation is not required to consider more than 1 application by a worker under subsection (3) unless directed to do so by the Tribunal on application made by the worker under this subsection.
(10)
Nothing in this section limits or affects the operation of Part 4 Division 6 or Division 7 or Part 5.

Division 5Assessment of permanent impairment22Assessment of permanent impairment

(1)
This section sets out a scheme for assessing the degree of impairment (being whole person impairment) that applies to a work injury that results in permanent impairment.
(2)
An assessment under this section—
(a)
must be made in accordance with the Impairment Assessment Guidelines; and
(b)
must be made by a medical practitioner who holds a current accreditation under this section.
(3)
The Minister will publish guidelines (the Impairment Assessment Guidelines) for the purposes of the assessment of permanent impairment (being whole person impairment).
(4)
The guidelines under subsection (3)—
(a)
must be published in the Gazette; and
(b)
may adopt or incorporate the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time; and
(c)
must incorporate a methodology that arrives at an assessment of the degree of impairment of the whole person (whole person impairment); and
(d)
may specify procedures to be followed in connection with an assessment; and
(f)
may be amended or substituted by the Minister from time to time.
(5)
The Minister must, before publishing or amending the Impairment Assessment Guidelines, consult with professional associations representing the class or classes of medical practitioners who hold accreditations under this section.
(6)
An amendment or substitution in relation to the Impairment Assessment Guidelines under subsection (4)(f) will take effect from a date specified by the Minister as part of the amendment, or in the substituted guidelines, as the case may be (the commencement date).
(6a)
If the Impairment Assessment Guidelines are amended or substituted, the amendment or substituted guidelines (as the case may be) will apply in relation to an injury regardless of whether the injury occurred before or on or after the commencement date.
(7)
An assessment of the degree of impairment resulting from an injury—
(a)
must not be made until there is evidence that the injury has stabilised; and
(b)
must, subject to subsection (8), be based on the worker's current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury; and
(c)
must be made by an accredited medical practitioner selected in accordance with the Impairment Assessment Guidelines.
(8)
An assessment must take into account the following principles:
(a)
if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury;
(b)
impairments from unrelated injuries or causes are to be disregarded in making an assessment;
(c)
impairments from the same injury or cause are to be assessed together or combined to determine the degree of impairment of the worker (using any principle set out in the Impairment Assessment Guidelines);
(d)
impairment resulting from physical injury is to be assessed separately from impairment resulting from psychiatric injury;
(e)
in assessing impairment resulting from physical injury or psychiatric injury, no regard is to be had to impairment that results from consequential mental harm;
(f)
in assessing the degree of permanent impairment resulting from physical injury, no regard is to be had to impairment that results from a psychiatric injury or consequential mental harm;
(g)
any portion of an impairment that is due to a previous injury (whether or not a work injury or whether because of a pre‑existing condition) that caused the worker to suffer an impairment before the relevant work injury is to be deducted for the purposes of an assessment, subject to any provision to the contrary made by the Impairment Assessment Guidelines;
(h)
assessments are to comply with any other requirements specified by the Impairment Assessment Guidelines.
Note—
The Parliament confirms that this subsection is to be interpreted and applied in accordance with the principles enunciated in the reasons of the Full Court of the Supreme Court in Return to Work Corporation of South Australia v Summerfield [2021] SASCFC 17.
(9)
A number determined under the Impairment Assessment Guidelines with respect to a value of a person's degree of whole person impairment may be rounded up or down according to any principle set out in the Impairment Assessment Guidelines.
(9a)
For the purposes of this section, an assessment (or parts of an assessment) may be undertaken by more than 1 accredited medical practitioner and their assessments combined so as to create 1 assessment.
(10)
Subject to subsections (12) to (15) (inclusive), if—
(a)
a worker has had a whole person impairment assessment under this section; and
(b)
another impairment from the same injury or cause develops or manifests itself after that assessment,
then that other impairment—
(c)
will be assessed separately; and
(d)
—
(i)
will not be combined in any respect (whether under this section or sections 56 or 58) with the impairment or impairments that have already been assessed; but
(ii)
may be combined with any other impairment from the same injury or cause that has also developed or manifested itself after the earlier assessment.
Example—
A worker suffers impairments arising from injuries A and B which both arise from the same cause. The worker has those impairments assessed under section 22. After the assessment of the impairments arising from injuries A and B, the worker develops further impairments from injuries C and D which arise from the same cause as injuries A and B. The worker is entitled to be assessed for the impairment arising from injuries C and D and to combine the impairments from those injuries. However, the worker cannot combine the impairments arising from injuries C and D with the impairments arising from injuries A and B under this Act.
(12)
Subsection (10) does not affect the requirement under subsection (8)(d) for impairment resulting from physical injury to be assessed separately from impairment resulting from psychiatric injury.
(13)
Subsection (10) operates subject to any assessment made under Part 8 (and the exercise of any adjudicative function by the Tribunal or a court).
(14)
An interim decision under section 21 will not be taken to constitute an assessment for the purposes of subsection (10).
(15)
Subsection (10) does not apply in any circumstances prescribed by the regulations.
(16)
For the purposes of this section, the Minister must establish an accreditation scheme after consultation with the Advisory Committee.
(17)
The accreditation scheme—
(a)
will provide for the accreditation of medical practitioners who are determined, under the scheme, to be suitably qualified to undertake assessments for the purposes of this section; and
(b)
will work on the basis that the Minister will issue the accreditations; and
(c)
may provide for the suspension or cancellation of accreditation by the Minister on specified grounds; and
(d)
may be amended or substituted by the Minister from time to time after consultation with the Advisory Committee.
(18)
An accreditation will be issued by the Minister—
(a)
for a period specified by the Minister; and
(b)
on conditions determined by the Minister.
(19)
Sections 10 (other than subsection (1)) and 10A of the Legislative Instruments Act 1978 apply to the publication, amendment or substitution of the Impairment Assessment Guidelines under this section (and a reference in section 10 or 10A to a regulation will be taken to be a reference to the Impairment Assessment Guidelines, the amendment or the substitution (as the case requires)).

Part 3Early intervention, recovery and return to work23Object

(1)
The object of this Part is to establish a system that seeks to ensure that a worker who suffers a work injury—
(a)
achieves the best practicable levels of physical and mental recovery; and
(b)
returns to the worker's pre‑injury work or, if that is not reasonably practicable, is in any event restored to the workforce and the community in a timely, safe and durable way.
(2)
Without limiting subsection (1), the aim is—
(a)
to intervene and provide services under this Part as early as is reasonably practicable after a worker suffers a work injury; and
(b)
in connection with paragraph (a)—
(i)
to return the worker to work in the worker's pre‑injury duties; or
(ii)
if it is not reasonably practicable to return the worker to work in the worker's pre‑injury duties—to return the worker, either temporarily or permanently, to other suitable duties with the worker's pre‑injury employer; or
(iii)
if subparagraphs (i) and (ii) are not reasonably practicable—to return the worker, either temporarily or permanently, to work with another employer; or
(iv)
if subparagraphs (i), (ii) and (iii) are not reasonably practicable—to maximise the worker's independent functioning as a member of the community; and
(c)
to ensure that any employer, worker or other person involved in a recovery or return to work process cooperate to achieve the object referred to in subsection (1).
(3)
This Part may apply to a worker even if it has not been finally established that the worker's injury is a work injury.

24Early intervention, recovery and return to work services

(1)
The services that may be provided under this Part (recovery/return to work services) may do 1 or more of the following:
1. (a)
  provide for the physical, mental or vocational assessment of a worker;
2. (b)
  provide advisory services to a worker, members of the family of a worker, an employer and others;
3. (c)
  assist a worker in retaining, seeking or obtaining employment;
4. (d)
  assist in the training or retraining of a worker;
5. (e)
  assist a worker to find or establish appropriate accommodation;
6. (f)
  provide equipment, facilities and services to assist a worker to cope with any injury at home or in the workplace;
7. (g)
  provide assistance to a person who may be in a position to help a worker to overcome or cope with an injury;
8. (h)
  provide necessary and reasonable costs (including costs of travel, accommodation and child care) incurred by a worker in order to receive or participate in any services;
9. (i)
  provide anything else that may assist in achieving the objects of this Part.
(2)
The services provided to a worker may recognise that if a return to work is not reasonably practicable in the short term that the services may assist a worker's overall recovery by assisting the worker to be restored to the community at the beginning and to return to work in the medium or longer term (recognising that some workers may have minimal prospects of returning to work at all due to the seriousness of the injury).
(3)
Action to determine the most appropriate recovery/return to work services to be provided to an injured worker must be taken as early as possible after the worker suffers the work injury.
(4)
The Corporation must take reasonable steps to ensure that a reasonable level of recovery/return to work services are provided to an injured worker taking into account the nature and extent of the worker's injury, the circumstances of the worker, and any other relevant factor.
(5)
Recovery/return to work services will be provided by persons accredited, approved or appointed by the Corporation.

25Recovery/return to work plans

(1)
Where it appears that a worker is (or is likely) to be incapacitated for work by a work injury for more than 4 weeks, the Corporation must ensure that a plan (a recovery/return to work plan) is prepared for the worker.
(2)
In connection with subsection (1)—
(a)
a recovery/return to work plan may be prepared even if the period of incapacity may be less than 4 weeks; and
(b)
a recovery/return to work plan may be prepared for a worker who may not be returning to work in the short or medium term so that the initial focus of the plan is on restoring the worker to the community at the beginning; and
(c)
a recovery/return to work plan may be prepared for a worker who has no reasonable prospect of returning to work but where the preparation of a plan would still assist in restoring the worker to the community; and
(d)
a recovery/return to work plan need not be prepared for a worker if the Corporation considers that, due to the severity of the injury, the focus should be on other forms of support and services (unless or until the worker becomes capable of participating in a plan).
(3)
Subject to taking into account the provisions of subsection (2), a recovery/return to work plan will set out the actions and responsibilities of a worker, an employer and the Corporation that are to be undertaken or assumed in order to achieve the earliest possible safe return to work or, if relevant, to the community on a durable basis.
(4)
A recovery/return to work plan may impose obligations on the worker and on the employer (and, in the case of a dispute, will continue to bind the worker and the employer subject to the outcome of any process or procedure associated with determining the dispute).
(5)
In preparing a recovery/return to work plan—
(a)
consultation must occur with the worker and, insofar as is necessary or appropriate, with the employer out of whose employment the injury arose; and
(b)
assistance may be obtained from the relevant return to work co‑ordinator (if appointed) and any person who might be providing services under the plan; and
(c)
insofar as is reasonably practicable—
(i)
medical records relevant to the worker's condition should be reviewed; or
(ii)
consultation should occur with any health practitioner who is treating the worker for a relevant injury; and
(d)
consultation may occur with any other person or body as the Corporation thinks fit.
(6)
A recovery/return to work plan must comply with standards and requirements prescribed by the regulations.
(7)
The Corporation must give the worker and the employer a copy of the recovery/return to work plan.
(8)
A recovery/return to work plan may be reviewed from time to time.
(9)
In connection with the operation of subsection (8), the regulations may—
(a)
specify when a recovery/return to work plan should be reviewed; and
(b)
prescribe procedures to be followed when a recovery/return to work plan is being reviewed.
(10)
Without limiting subsections (8) and (9), if—
(a)
a worker who has been incapacitated for work in consequence of a work injury has not, at the expiration of the period of 6 months from the date on which the incapacity for work first occurred, returned to work in employment that is the same as, or equivalent to, the employment in which the worker was employed immediately before the incapacity; and
(b)
the worker is not working to his or her full capacity (after taking into account the nature and effect of the worker's work injury and any other relevant factor),
new or other employment options for the worker need to be taken into account in order to assist the worker to return to work in suitable employment.
(11)
A plan under this section must not impose any obligation on a seriously injured worker to return to work (but may include processes designed to assist a seriously injured worker to return to work at the request of the worker).

26Return to work co-ordinators

(1)
Subject to this section, an employer must appoint (and retain) a return to work co‑ordinator (referred to in this section as a co‑ordinator).

(b)
where the claimant has received, in pursuance of antecedent rights, damages or compensation (not being weekly payments for a period of incapacity that concluded before the appointed day), there will be an appropriate reduction in the amount of compensation payable under this Act in respect of the injury;
(c)
the extent of a subrogation under paragraph (a), or a reduction in the amount of compensation under paragraph (b), will be determined having regard to—
(i)
the amount of the compensation payable (apart from this subclause) under this Act in respect of the transitional injury; and
(ii)
the extent to which the transitional injury is attributable to a trauma that occurred before the appointed day; and
(iii)
any other relevant factors.
(4)
Where a compensating authority—
(a)
pays compensation to a claimant under this Act; and
(b)
becomes entitled to recover a proportion of the payment from an employer by virtue of subrogation to the rights of the claimant under subclause (3)(a); and
(c)
notifies that employer in writing of the payment,
the amount recoverable from the employer will be increased by interest at the prescribed rate as from the date of the notification.
(5)
The Corporation will, in the first instance, make a determination of—
(a)
the extent of a subrogation under subclause (3)(a) or a reduction in the amount of compensation under subclause (3)(b); and
(b)
the amount of any consequential liability.
(6)
Before making such a determination the Corporation must allow any person whose interests may be affected by the determination a reasonable opportunity to make representations to the Corporation on the subject matter of the determination and when the determination is made the Corporation must give written notification of the terms of the determination to every person whose interests are affected by it.
(7)
Any such person may, by written notice served personally or by post on the Corporation within 1 month after receiving notice of the determination or such longer period as the Corporation may allow, dispute the determination.
(8)
Any such dispute may be referred on the application of any party affected by the determination to SAET.
(9)
Where a dispute is so referred, SAET will review the Corporation's determination and may confirm, vary or revoke it.
(10)
Subject to the regulations, a determination by the Corporation under this clause may be enforced in the same way as a decision of SAET.
(11)
A determination by the Corporation may be enforced notwithstanding that it is disputed, but if it appears from the result of a review that a compensating authority has recovered an amount in pursuance of the determination to which the compensating authority is not entitled, that amount must be repaid together with interest at the prescribed rate.

60—Mining and Quarrying Industries Fund

(1)
The scheme established under Part 9 of the 1971 Act continues in existence for the settlement of claims and other matters arising in relation to death or disablement from silicosis suffered before the appointed day except that the Corporation will be liable to satisfy any claim made under the scheme.
(2)
The money held by the Corporation in connection with the operation of subclause (1) must be held in a special account entitled the Mining and Quarrying Industries Fund.
(3)
The Mining and Quarrying Industries Fund is to be notionally divided into 2 parts (Part A and Part B), 1 part (Part A) to be available to the Corporation to satisfy its liabilities under subclause (1) and the balance (Part B) to be available to the Mining and Quarrying Occupational Health and Safety Committee under Schedule 2 of the Work Health and Safety Act 2012 for the purposes referred to in that Schedule.
(4)
For the purposes of the division of the Mining and Quarrying Industries Fund into 2 parts—
(a)
the Corporation must at 3 yearly intervals arrange for an actuary to estimate the extent of the Corporation's existing and prospective liabilities under subclause (1) at that date; and
(b)
—
(i)
if it appears from any such estimate that the amount standing to the credit of Part A exceeds the amount required to satisfy the Corporation's liabilities under subclause (1), the amount of the excess must be transferred from Part A to Part B;
(ii)
if it appears from any such estimate that the amount standing to the credit of Part A is less than the amount required to satisfy the Corporation's liabilities under subclause (1), the amount required to make up the deficiency must be transferred from Part B to Part A.
(5)
The Corporation must keep separate accounting records for Parts A and B.
(6)
Money standing to the credit of the Mining and Quarrying Industries Fund (and not immediately required for the purposes of the fund) may be invested as if it were part of the Compensation Fund.
(7)
Income and accretions produced by the investment of the money must be shared between Parts A and B (the amount of the shares being determined according to the extent to which money held on each account has contributed to the amount invested).
(8)
The Corporation may debit the Mining and Quarrying Industries Fund with the reasonable costs of administering the fund.

61—Statutory Reserve Fund

(1)
The Statutory Reserve Fund (referred to in section 118c of the 1971 Act) must continue to be held as a separate part of the Compensation Fund.
(2)
Division 4 of Part 10A (ie sections 118d to 118e) of the 1971 Act, and related interpretative provisions, continue in force subject to the following modifications:
(a)
references to the Commission are to be read as references to the Corporation;
(b)
references to the fund are to be read as references to the Statutory Reserve Fund held under subclause (1);
(c)
references to the Treasurer are to be read as references to the Corporation;
(d)
references to the Court are to be read as references to SAET;
(e)
section 118d(10) is modified to read as follows:
(10)
On an appeal under this section, SAET has power to review all aspects of the Corporation's determination.;
(f)
after section 118d(12) subsections are inserted in the following terms:
(13)
Any amounts recovered by the Corporation in the exercise of rights to which it is subrogated under subsection (12) must be paid into the fund.
(14)
A claim made under this section before the date of transition that had not been disposed of at the date of transition (a pre‑transition claim), is taken to have been made against the Corporation as if this section had been in force in its modified form when the claim was made and it was then made against the Corporation.
(15)
It follows that the Corporation assumes responsibility for administering pre-transition claims and is substituted for the Commission or the Treasurer (as the case requires) in any legal proceedings relating to such claims.
(16)
Any rights of subrogation that existed in favour of the Treasurer immediately before the date of transition are transferred to the Corporation.
(17)
The Corporation may recoup administrative expenses and legal costs related to claims under this section from the fund.
(18)
The Corporation may intervene and be heard in proceedings before a court if there is a prospect that a claim before the court, or a judgment of the court, may lead to a claim under this section.
(19)
In this section—
date of transition means the date on which the Workers Rehabilitation and Compensation (SGIC) Amendment Act 1996 came into operation.

62—Insurance Assistance Fund

(1)
The Insurance Assistance Fund must continue to be held as a separate part of the Compensation Fund.
(2)
The Governor may, by proclamation, transfer rights and liabilities of the insurer under a section 118g policy from the Motor Accident Commission to the Corporation.
(3)
The Motor Accident Commission may delegate to the Corporation its responsibility for administering claims under section 118g policies.
(4)
The Corporation may, by an authorised contract or arrangement—
(a)
delegate its responsibility for administering claims under section 118g policies in relation to which the rights and liabilities of the insurer have been transferred to the Corporation under subclause (2); or
(b)
subdelegate a responsibility for administering claims under section 118g policies delegated to it under subclause (3).
(5)
The Motor Accident Commission or the Corporation (as the case requires) may recoup expenditure covering liabilities under section 118g policies and associated administrative and legal costs (other than expenditure and costs covered by a contract of reinsurance) from the Insurance Assistance Fund and, if that proves insufficient, from the Statutory Reserve Fund.
(6)
In this clause—
authorised contract or arrangement means a contract or arrangement authorised by regulation under section 14 of the WorkCover Corporation Act 1994;
section 118g policy means a policy of insurance issued under section 118g(3) of the 1971 Act.

63—Management of funds

(1)
The Statutory Reserve Fund and the Insurance Assistance Fund may be invested in common with the Compensation Fund as if they formed part of the Compensation Fund.
(2)
For the purposes of financial reporting and actuarial valuations, the Statutory Reserve Fund and the Insurance Assistance Fund will be taken to form part of the Compensation Fund.
(3)
If the Corporation is of the opinion that the balance of the Statutory Reserve Fund or the Insurance Assistance Fund exceeds the amount reasonably required for the purposes for which the relevant fund exists, the Corporation may, with the Minister's consent, transfer the surplus to the Compensation Fund.

64—Entitlement to documents

The Corporation is entitled to possession of all documents and other materials in the possession or power of the Motor Accident Commission relevant to claims against the Statutory Reserve Fund or to liabilities under policies of insurance transferred to the Corporation in connection with the scheme continued under this Schedule.
65—Loss of earning capacity—capital loss assessments
(1)
Division 4B of Part 4 of the repealed Act, as in existence immediately before the designated day, will be taken to continue to apply with respect to any case where the Corporation or a self‑insured employer has made any assessment (including an interim assessment) under section 42A of the repealed Act before the designated day.
(2)
If a worker to whom subclause (1) applies has not, immediately before the commencement of this clause, received a final assessment of loss under the Division of the repealed Act referred to in subclause (1), any further assessment under that Division will be made on the basis that the worker is taken to be a seriously injured worker for the purposes of the assessment.
Division 10—Work health and safety administration costs

66—Work health and safety administration costs

(1)
In this clause—
WHS Act means the Work Health and Safety Act 2012.
(2)
The prescribed percentage of the prescribed amount under Schedule 5, clause 2(7) and (8) of the WHS Act (as amended by this Act) for the 2015/2016 financial year must be at least equal to the total of the prescribed percentage of the prescribed amount under Schedule 5, clause 2(7) and (8) of the WHS Act for the 2014/2015 financial year and the amount payable under Schedule 5, clause 3 of the WHS Act for the 2014/2015 financial year (and if a regulation is not made under Schedule 5, clause 2(7) or (8) of the WHS Act (as amended by this Act) for the 2015/2016 financial year then the total amount described in this subclause will apply under that clause).

Division 11—Renewal of authorised contracts

67—Renewal of authorised contracts

Section 14(4a)(a) of the WorkCover Corporation Act 1994 does not apply to a regulation under section 14(4)(d) of that Act that is expressed to come into operation on 1 July 2015.
Division 12—Review of provisions relating to firefighters

68—Review

(1)
In addition to causing a review of this Act to be conducted as required under section 203, the Minister must, as soon as possible after 1 July 2018, appoint a person to carry out a review concerning the operation and impact of—
(a)
the amendments to the Workers Rehabilitation and Compensation Act 1986 made by the Workers Rehabilitation and Compensation (Firefighters) Amendment Act 2013 and Part 8 of this Schedule; and
(b)
Schedule 3 of this Act.
(2)
The person appointed by the Minister under subclause (1) must present to the Minister a report on the outcome of the review no later than 4 months following his or her appointment.
(3)
The Minister must, within 6 sitting days after receiving the report, have copies of the report laid before both Houses of Parliament.

Division 13—Regulations

69—Additional transitional provisions—regulations

(1)
The Governor may, by regulation, make provisions, or additional provisions, of a saving or transitional nature consequent on the amendment of this Act by another Act.
(2)
A provision of a regulation made under subclause (1) may, if the regulations so provide, take effect from the commencement of the amendment or from a later day.
(3)
To the extent that a provision takes effect under subclause (2) from a day earlier than the day of the regulation's publication in the Gazette, the provision does not operate to the disadvantage of a worker by decreasing a right that existed immediately before that date of publication in the Gazette.

Legislative history

Notes

•
Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.
•
Earlier versions of this Act (historical versions) are listed at the end of the legislative history.
•
For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or repealed by principal Act
The Return to Work Act 2014 repealed the following:
Workers Rehabilitation and Compensation Act 1986
Legislation amended by principal Act
The Return to Work Act 2014 amended the following:
Civil Liability Act 1936
Judicial Administration (Auxiliary Appointments and Powers) Act 1988
Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013
Supreme Court Act 1935
WorkCover Corporation Act 1994
Workers Rehabilitation and Compensation Act 1986
Work Health and Safety Act 2012
Principal Act and amendments
New entries appear in bold.
Year
No
Title
Assent
Commencement
2014
16
Return to Work Act 2014
6.11.2014
Sch 9 (Pt 8)—1.7.2013: s 2(2); ss 1—3, 4(1)—(7), (14)—(16), 6, 22(16)—(18), 118—120, 126, 127, 135(1), 135(3)(d), (f), (g), Pt 11 (ss 171—174), ss 185, 194, 195, 196(1)(d), (2), (3), 202 & Sch 9 (cl 69)—4.12.2014 (Gazette 4.12.2014 p6610); Sch 9 (cl 28)—1.1.2015: s 2(3); ss 10—12, 16(8), 22(3)—(5), 24(5), 26(5)(c), 28(1), (2), 30(1)(a), (c), 33(2)(i), (8), (12)(a), (13)—(15), 45(2), (3), (8), 46(2), (4), (8), 47(2), (3)(a)(ii), (4), 51(2), 63(3), 64(16), (17)(a), 129(5)(d), 131(1)(a), 132, 136, 138, 139(1), 140—143, 145, 146, 147(5), Pt 9 Div 7, ss 165(1), (2), (7) & Sch 9 (cll 8—11, 21, 24, 26(1), (5), 27(2), 34(2)—(4), 54(2), (4), 66 & 67)—2.2.2015; remainder of Act—1.7.2015 (Gazette 4.12.2014 p6610)
2020
40
Training and Skills Development (Miscellaneous) Amendment Act 2020
19.11.2020
Sch 1 (cl 8)—1.7.2021 (Gazette 24.6.2021 p2260)
2022
4
Return to Work (Scheme Sustainability) Amendment Act 2022
14.7.2022
1.8.2022 (Gazette 28.7.2022 p2374) except ss 3 to 5, 8 to 10, 11(1), (2) & (5), 12, 14 to 16, 18 & 19, Sch 1 (cl 1(1) definitions of Category 1 seriously injured worker, Category 2 seriously injured worker, designated worker, interim seriously injured worker and relevant day & cll 2 to 5)—11.8.2022 (Gazette 11.8.2022 p2489)
Provisions amended
New entries appear in bold.
Entries that relate to provisions that have been deleted appear in italics.
Provision
How varied
Commencement
Long title
amended under Legislation Revision and Publication Act 2002
1.7.2021
Pt 1
s 2
omitted under Legislation Revision and Publication Act 2002
1.7.2021
s 4
s 4(1)
apprentice
amended by 40/2020 Sch 1 cl 8
1.7.2021
physical injury
inserted by 4/2022 s 3
11.8.2022
Pt 2
s 7
s 7(2)
amended by 4/2022 s 4
11.8.2022
s 21
s 21(2)
substituted by 4/2022 s 5(1)
11.8.2022
s 21(3) and (4)
substituted by 4/2022 s 5(2)
11.8.2022
s 21(4a)
inserted by 4/2022 s 5(2)
11.8.2022
s 21(6a)
inserted by 4/2022 s 5(3)
11.8.2022
s 21(8)
substituted by 4/2022 s 5(4)
11.8.2022
s 22
s 22(4)
(e) deleted by 4/2022 s 6(1)
1.8.2022
s 22(6)
substituted by 4/2022 s 6(2)
1.8.2022
s 22(6a)
inserted by 4/2022 s 6(2)
1.8.2022
s 22(8)
note inserted by 4/2022 s 6(3)
1.8.2022
s 22(9a)
inserted by 4/2022 s 6(4)
1.8.2022
s 22(10)
substituted by 4/2022 s 6(5)
1.8.2022
s 22(11)
deleted by 4/2022 s 6(5)
1.8.2022
s 22(19)
inserted by 4/2022 s 6(6)
1.8.2022
Pt 4
s 40
s 40(1)
amended by 4/2022 s 7
1.8.2022
s 48
s 48(2)
amended by 4/2022 s 8(1)
11.8.2022
s 48(10a)
inserted by 4/2022 s 8(2)
11.8.2022
s 53
s 53(2)
amended by 4/2022 s 9(1)
11.8.2022
s 53(5a)
inserted by 4/2022 s 9(2)
11.8.2022
s 54
s 54(2)
deleted by 4/2022 s 10
11.8.2022
s 56
s 56(1)
amended by 4/2022 s 11(1)
11.8.2022
s 56(4)
PS
amended by 4/2022 s 11(2)
11.8.2022
s 56(5)
substituted by 4/2022 s 11(3)
1.8.2022
s 56(8)
substituted by 4/2022 s 11(4)
1.8.2022
s 56(9)
deleted by 4/2022 s 11(4)
1.8.2022
s 56(12)
inserted by 4/2022 s 11(5)
11.8.2022
s 56A
inserted by 4/2022 s 12
11.8.2022
s 58
s 58(6)
substituted by 4/2022 s 13(1)
1.8.2022
s 58(9)
substituted by 4/2022 s 13(2)
1.8.2022
s 58(10)
deleted by 4/2022 s 13(2)
1.8.2022
Pt 5
s 72
heading
amended by 4/2022 s 14(1)
11.8.2022
s 72(1)
substituted by 4/2022 s 14(2)
11.8.2022
s 72(3)
substituted by 4/2022 s 14(3)
11.8.2022
s 73
s 73(2)
amended by 4/2022 s 15(1)
11.8.2022
s 73(4)
amended by 4/2022 s 15(2)
11.8.2022
s 73(5)
amended by 4/2022 s 15(3)
11.8.2022
Pt 6
s 97
amended by 4/2022 s 16
11.8.2022
Pt 7
s 115
s 115(1)
amended by 4/2022 s 17
1.8.2022
Pt 9
s 134
s 134(1)
amended by 4/2022 s 18
11.8.2022
Sch 7
amended by 4/2022 s 19
11.8.2022
Sch 9
Pts 3—9
omitted under Legislation Revision and Publication Act 2002
1.7.2021
Pt 10
cl 69
cl 69(1)
substituted by 4/2022 s 20(1)
1.8.2022
cl 69(2)
amended by 4/2022 s 20(2)
1.8.2022
Transitional etc provisions associated with Act or amendments
Return to Work (Scheme Sustainability) Amendment Act 2022, Sch 1—Transitional provisions
1—Interpretation
(1)
In this Schedule—
Category 1 seriously injured worker means a worker who, at any time during the period appointed by proclamation for the purposes of this definition (the Category 1 designated period), is (or becomes) an interim seriously injured worker;
Category 2 seriously injured worker means a worker who, at any time during the period appointed by proclamation for the purposes of this definition, being a period commencing immediately after the end of the Category 1 designated period, becomes an interim seriously injured worker;
compensating authority means the Corporation or a self-insured employer;
designated day means a day appointed by proclamation as the designated day for the purposes of the provision in which the term is used;
designated worker means a worker who, in relation to a physical injury, has been assessed to be a seriously injured worker under Part 2 Division 5 of the principal Act;
interim seriously injured worker means a worker who is taken to be a seriously injured worker under section 21(3) of the principal Act pending an assessment of permanent impairment under Part 2 Division 5 of the principal Act;
principal Act means the Return to Work Act 2014;

relevant day means a day appointed by proclamation as the relevant day for the purposes of the provision in which the term is used.
(2)
Other terms used in this Schedule have meanings consistent with the meanings they have in the principal Act.
2—Application of amendments—seriously injured workers threshold
(1)
This clause applies in relation to work injuries other than psychiatric injuries.
(2)
Subject to subclause (3), the amendments made to the principal Act by sections 5(1), 5(4), 14 and 19 of the Act apply in relation to any work injury where the final examination relating to the worker by an accredited medical practitioner for the purposes of an assessment under section 22 of the principal Act occurs on or after the designated day (even if the injury is attributable to trauma that occurred before the designated day and even if anything arising from the examination, or any assessment made by the accredited medical practitioner, is subsequently set aside or disregarded by the Tribunal or a court).
(3)
Where 2 or more accredited medical practitioners are required to undertake an examination or assessment under section 22 of the principal Act to determine the degree of impairment of a worker in relation to injuries arising from the same cause, the amendments made to the principal Act by this Act will only apply if none of the injuries are the subject of a final examination by an accredited medical practitioner for the purposes of an assessment under section 22 of the principal Act before the designated day.
(4)
For the purposes of this clause, the final examination relating to a worker by an accredited medical practitioner is the last attendance when the accredited medical practitioner needs to see the worker in order to enable the accredited medical practitioner to complete and issue the permanent impairment assessment report under section 22 of the principal Act (even if that report is subsequently substituted, supplemented or expanded).
Example 1—
If an accredited medical practitioner sees a worker, and then following that appointment determines that they do not need to see the worker again, then the final examination will be the date of that last attendance. This is even if the accredited medical practitioner determines they do not need to see the worker again but does require an x-ray or other test to be obtained.
Example 2—
If an accredited medical practitioner sees a worker, and then following that appointment determines they need further tests and will need to see the worker again following those tests, then the final examination will be the date of that further attendance (as long as the accredited medical practitioner does not need to see them again in order to complete and issue the permanent impairment assessment report under section 22 of the principal Act).
3—General provision and thresholds—seriously injured workers
(1)
Subject to this Schedule and the other provisions of this Act—
(a)
a worker who has been assessed to be a seriously injured worker under Part 2 Division 5 of the principal Act immediately before the designated day will continue to be regarded as a seriously injured worker; and
(b)
a worker who is taken to be a seriously injured worker under section 21(3) of the principal Act immediately before the designated day will continue to be taken to be a seriously injured worker.
(2)
In the case of a Category 1 seriously injured worker—
(a)
in relation to an assessment of the degree of whole person impairment made before the designated day—after the assessment is made the worker will be regarded as a seriously injured worker for the purposes of the principal Act if the worker is assessed to have a degree of whole person impairment that is 30% or more under Part 2 Division 5 of the principal Act; and
(b)
in relation to an assessment of the degree of whole person impairment made on or after the designated day—after the assessment is made the worker will be regarded as a seriously injured worker for the purposes of the principal Act if the worker is assessed to have a degree of whole person impairment that is—
(i)
in the case of psychiatric injury—30% or more under Part 2 Division 5 of the principal Act; and
(ii)
in the case of physical injury—35% or more under Part 2 Division 5 of the principal Act.
(3)
In the case of a Category 2 seriously injured worker, in relation to an assessment of the degree of whole person impairment made on or after the designated day, after the assessment is made the worker will be regarded as a seriously injured worker for the purposes of the principal Act if the worker is assessed to have a degree of whole person impairment that is—
(a)
in the case of psychiatric injury—30% or more under Part 2 Division 5 of the principal Act; and
(b)
in the case of physical injury—35% or more under Part 2 Division 5 of the principal Act.

4—Elections—seriously injured workers

(1)
This clause applies in relation to the operation of section 56A of the principal Act, as enacted by this Act.
(2)
If a worker is a designated worker before the designated day, the worker may make an election under section 56A on or after the relevant day and subclause (4) will apply in relation to the worker.
(3)
If—
(a)
a worker is a Category 1 seriously injured worker; and
(b)
the worker is assessed to have a degree of whole person impairment that is 30% or more under Part 2 Division 5 of the principal Act; and
(c)
that assessment is made before the designated day,
the worker may make an election under section 56A and subclause (4) will apply in relation to the worker.
(4)
If this subclause applies in relation to a worker, section 56 (as amended by this Act) and section 56A (as enacted) of the principal Act will apply subject to the following modifications and qualifications:
(a)
the age factor (AF) applying in relation to the worker will be taken to be the worker's age at the date of the election rather than the relevant date as it applies in relation to the worker under section 5 of the principal Act;
(b)
the total payment under section 56 that the worker can receive cannot exceed the prescribed sum applicable for 29% whole person impairment;
(c)
section 56A(7) will apply so that the only amounts to be deducted are weekly payments made to the worker under section 41 of the principal Act where—
(i)
the payments are made on or after the designated day under this subclause and before the date of the election; and
(ii)
the payments are made after the period of 104 weeks from the date on which the incapacity for work first occurs, other than weekly payments made in accordance with section 56A(6) after—
(A)
in the case of an election made by a 50% or more WPI worker—the day on which the relevant application is referred to the Tribunal under section 56A; or
(B)
in any other case—the day on which the election is received by the Corporation under section 56A.
(5)
If a worker—
(a)
is a Category 1 seriously injured worker who is assessed to be a designated worker on or after the designated day under subclause (3); or
(b)
is a Category 2 seriously injured worker,
the worker may only make an election under section 56A if the worker is assessed to have a degree of whole person impairment that is 35% or more under Part 2 Division 5 of the principal Act and, in the case of a Category 1 seriously injured worker, subclause (6) will apply in relation to the worker.
(6)
If this subclause applies in relation to a worker, section 56 (as amended by this Act) and section 56A (as enacted) of the principal Act will apply subject to the following modifications and qualifications:
(a)
the age factor (AF) applying in relation to the worker will be taken to be the worker's age at the date of the election rather than the relevant date as it applies in relation to the worker under section 5 of the principal Act;
(b)
section 56A(7) will apply so that the only amounts to be deducted are weekly payments made to the worker under section 41 of the principal Act where—
(i)
the payments are made on or after the designated day under this subclause and before the date of the election; and
(ii)
the payments are made after the period of 104 weeks from the date on which the incapacity for work first occurs, other than weekly payments made in accordance with section 56A(6) after—
(A)
in the case of an election made by a 50% or more WPI worker—the day on which the relevant application is referred to the Tribunal under section 56A; or
(B)
in any other case—the day on which the election is received by the Corporation under section 56A.
(7)
Despite any other provision, a worker who is a seriously injured worker as a result of an injury that is attributable to a trauma that occurred before 1 July 2015 is not entitled to make an election under section 56A of the principal Act.

5—Interim decisions under section 21(3) of Act

(1)
This clause applies in relation to the application of the amendments made by section 5(2) of this Act.
(2)
In this clause, a reference to the relevant provision is a reference to subsection (4)(b)(ii) of section 21 of the principal Act as enacted by section 5(2) of this Act.
(3)
The amendments made by section 5(2) of this Act apply as follows:
(a)
in relation to a Category 1 seriously injured worker—
(i)
the principal Act as amended by section 5(2) of this Act will apply from the designated day under this subparagraph; and
(ii)
until the designated day under this subparagraph, the amendments will apply as if a reference to 35% in the relevant provision were a reference to 30%; and
(iii)
on and after the designated day under this subparagraph, in relation to a worker with a physical injury, the compensating authority may also act under the relevant provision if it appears that the worker's likely degree of whole person impairment is not likely to be 35% or more;
(b)
in relation to a Category 2 seriously injured worker—the principal Act as amended by section 5(2) of this Act will apply from the designated day under this paragraph.
6—Amendment or substitution of Impairment Assessment Guidelines
(1)
Subject to this clause, subsections (6) and (6a) of section 22 of the principal Act, as enacted by section 6(2) of this Act, apply in relation to any amendment or substitution of the Impairment Assessment Guidelines that takes effect on or after the designated day (including in relation to an injury that occurred before the designated day).
(2)
The WorkCover Guidelines for the evaluation of permanent impairment, published in the Gazette on 26 March 2009, will continue to apply in relation to an injury that has been the subject of an application made under regulation 5 of the Return to Work (Transitional Arrangements) (General) Regulations 2015.
(3)
The Impairment Assessment Guidelines, published in the Gazette on 12 March 2015, will continue to apply in relation to an injury that has been the subject of an application made under regulation 4 of the Return to Work (Transitional Arrangements) (General) Regulations 2015.
(4)
Despite any other provision of the principal Act or this Act, in the case of a worker whose injury or injuries have stabilised, and who on or after the commencement of this subclause gives a written notice to the compensating authority selecting a particular accredited medical practitioner to undertake an assessment under section 22 of the principal Act of the degree of impairment resulting from the injury or injuries, the Return to Work Scheme Impairment Assessment Guidelines published March 2015 apply in relation to the injury or injuries rather than the version of the Impairment Assessment Guidelines applying immediately before the commencement of this subclause, unless the Return to Work Scheme Impairment Assessment Guidelines published March 2015 already applied, in which case, that version will continue to apply.

7—Impairment Assessment Guidelines

(1)
The Impairment Assessment Guidelines, as in existence immediately before the designated day, are not subject to the operation of subsection (19) of section 22 of the principal Act, as enacted by section 6(6) of this Act, but that subsection will apply to any amendment or substitution of those guidelines that takes effect on or after the designated day.
(2)
Subclause (1) does not apply in relation to the Impairment Assessment Guidelines that apply under clause 6(4).

8—Supplementary income support

The amendment made to the principal Act by section 7 of this Act applies in relation to surgery approved by a compensating authority—
(a)
before the designated day in relation to surgery that is conducted on or after the designated day; or
(b)
on or after the designated day.

Historical versions

1.7.2021

1.8.2022

Year	No	Title	Assent	Commencement
2014	16	Return to Work Act 2014	6.11.2014	Sch 9 (Pt 8)—1.7.2013: s 2(2); ss 1—3, 4(1)—(7), (14)—(16), 6, 22(16)—(18), 118—120, 126, 127, 135(1), 135(3)(d), (f), (g), Pt 11 (ss 171—174), ss 185, 194, 195, 196(1)(d), (2), (3), 202 & Sch 9 (cl 69)—4.12.2014 (Gazette 4.12.2014 p6610); Sch 9 (cl 28)—1.1.2015: s 2(3); ss 10—12, 16(8), 22(3)—(5), 24(5), 26(5)(c), 28(1), (2), 30(1)(a), (c), 33(2)(i), (8), (12)(a), (13)—(15), 45(2), (3), (8), 46(2), (4), (8), 47(2), (3)(a)(ii), (4), 51(2), 63(3), 64(16), (17)(a), 129(5)(d), 131(1)(a), 132, 136, 138, 139(1), 140—143, 145, 146, 147(5), Pt 9 Div 7, ss 165(1), (2), (7) & Sch 9 (cll 8—11, 21, 24, 26(1), (5), 27(2), 34(2)—(4), 54(2), (4), 66 & 67)—2.2.2015; remainder of Act—1.7.2015 (Gazette 4.12.2014 p6610)
2020	40	Training and Skills Development (Miscellaneous) Amendment Act 2020	19.11.2020	Sch 1 (cl 8)—1.7.2021 (Gazette 24.6.2021 p2260)
2022	4	Return to Work (Scheme Sustainability) Amendment Act 2022	14.7.2022	1.8.2022 (Gazette 28.7.2022 p2374) except ss 3 to 5, 8 to 10, 11(1), (2) & (5), 12, 14 to 16, 18 & 19, Sch 1 (cl 1(1) definitions of Category 1 seriously injured worker, Category 2 seriously injured worker, designated worker, interim seriously injured worker and relevant day & cll 2 to 5)—11.8.2022 (Gazette 11.8.2022 p2489)

Provision	How varied	Commencement
Long title	amended under Legislation Revision and Publication Act 2002	1.7.2021
Pt 1
s 2	omitted under Legislation Revision and Publication Act 2002	1.7.2021
s 4
s 4(1)
apprentice	amended by 40/2020 Sch 1 cl 8	1.7.2021
physical injury	inserted by 4/2022 s 3	11.8.2022
Pt 2
s 7
s 7(2)	amended by 4/2022 s 4	11.8.2022
s 21
s 21(2)	substituted by 4/2022 s 5(1)	11.8.2022
s 21(3) and (4)	substituted by 4/2022 s 5(2)	11.8.2022
s 21(4a)	inserted by 4/2022 s 5(2)	11.8.2022
s 21(6a)	inserted by 4/2022 s 5(3)	11.8.2022
s 21(8)	substituted by 4/2022 s 5(4)	11.8.2022
s 22
s 22(4)	(e) deleted by 4/2022 s 6(1)	1.8.2022
s 22(6)	substituted by 4/2022 s 6(2)	1.8.2022
s 22(6a)	inserted by 4/2022 s 6(2)	1.8.2022
s 22(8)	note inserted by 4/2022 s 6(3)	1.8.2022
s 22(9a)	inserted by 4/2022 s 6(4)	1.8.2022
s 22(10)	substituted by 4/2022 s 6(5)	1.8.2022
s 22(11)	deleted by 4/2022 s 6(5)	1.8.2022
s 22(19)	inserted by 4/2022 s 6(6)	1.8.2022
Pt 4
s 40
s 40(1)	amended by 4/2022 s 7	1.8.2022
s 48
s 48(2)	amended by 4/2022 s 8(1)	11.8.2022
s 48(10a)	inserted by 4/2022 s 8(2)	11.8.2022
s 53
s 53(2)	amended by 4/2022 s 9(1)	11.8.2022
s 53(5a)	inserted by 4/2022 s 9(2)	11.8.2022
s 54
s 54(2)	deleted by 4/2022 s 10	11.8.2022
s 56
s 56(1)	amended by 4/2022 s 11(1)	11.8.2022
s 56(4)
PS	amended by 4/2022 s 11(2)	11.8.2022
s 56(5)	substituted by 4/2022 s 11(3)	1.8.2022
s 56(8)	substituted by 4/2022 s 11(4)	1.8.2022
s 56(9)	deleted by 4/2022 s 11(4)	1.8.2022
s 56(12)	inserted by 4/2022 s 11(5)	11.8.2022
s 56A	inserted by 4/2022 s 12	11.8.2022
s 58
s 58(6)	substituted by 4/2022 s 13(1)	1.8.2022
s 58(9)	substituted by 4/2022 s 13(2)	1.8.2022
s 58(10)	deleted by 4/2022 s 13(2)	1.8.2022
Pt 5
s 72
heading	amended by 4/2022 s 14(1)	11.8.2022
s 72(1)	substituted by 4/2022 s 14(2)	11.8.2022
s 72(3)	substituted by 4/2022 s 14(3)	11.8.2022
s 73
s 73(2)	amended by 4/2022 s 15(1)	11.8.2022
s 73(4)	amended by 4/2022 s 15(2)	11.8.2022
s 73(5)	amended by 4/2022 s 15(3)	11.8.2022
Pt 6
s 97	amended by 4/2022 s 16	11.8.2022
Pt 7
s 115
s 115(1)	amended by 4/2022 s 17	1.8.2022
Pt 9
s 134
s 134(1)	amended by 4/2022 s 18	11.8.2022
Sch 7	amended by 4/2022 s 19	11.8.2022
Sch 9
Pts 3—9	omitted under Legislation Revision and Publication Act 2002	1.7.2021
Pt 10
cl 69
cl 69(1)	substituted by 4/2022 s 20(1)	1.8.2022
cl 69(2)	amended by 4/2022 s 20(2)	1.8.2022