Untitled document
Accident Compensation Amendment Act 2010
No. 9 of 2010
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY
1Purpose
2Commencement
PART 2—WORKERS' ENTITLEMENT TO COMPENSATION
3Definitions
4Pre-injury average weekly earnings
5Calculation of additional amount
6New subsection inserted in section 5A
7References to $1130 substituted
8Definition of full time student
9Amendment of section 14(3)
10New section 14AA inserted
14AAMunicipal Councillors
11New sections 16A and 17 inserted
16ARiders and drivers in certain races
17Outworkers
12Claims for mental injury
13Further amendment of section 82
14Definitions
15New sections 82A to 82D inserted
82ACircumstances in which weekly payments are reduced because of conviction for drink-driving offence
82BCircumstances in which weekly payments are reduced because of conviction for drug-driving offence
82CNo entitlement to compensation where conviction for certain serious road traffic offences
82DWhere conviction or finding of guilt overturned
16New section 114BA inserted
114BANotice of reduction of weekly payments
17New sections 239AAA, 239AAB and 239AAC inserted
239AAAAccess to police records
239AABCourt to provide certificate of conviction
239AACVicRoads may disclose information to Authority
18Amendment of Road Safety Act 1986
PART 3—ENSURING TIMELY ACCESS TO BENEFITS
19Amendment of section 103
20Amendment of sections 105 and 108
21New section 109 substituted
109Responsibilities of self-insurers and the Authority
22Amendment of section 242
23New sections 242AA to 242AF inserted
242AAOffence to engage in discriminatory conduct
242ABOrder for damages or reinstatement
242ACProcedure if prosecution is not brought under section 242AA
242ADCivil proceedings relating to discriminatory conduct
242AEEffect of orders on other orders under section 242AA, 242AB or 242AD
242AFClaims under section 242AB or 242AD
24Proceedings under section 242AA to be instituted within
3 years25Amendment of section 138B
26New section 252J inserted
252JSupreme Court—limitation of jurisdiction
27New section 252K inserted
252KSupreme Court—limitation of jurisdiction
PART 4—BETTER INCOME REPLACEMENT
28Definitions
29New section 55AA inserted
55AAReferral of medical question without consent
30New section 91E inserted
91EDefinitions applicable to this Division
31New sections 93A to 93CA substituted
93AWeekly payments in first entitlement period
93BWeekly payments in second entitlement period
93CWeekly payments after the second entitlement period
93CACompensation for incapacity arising from surgery
after second entitlement period
32Amendments consequential on new sections 93A to 93CA
33Further consequential amendments
34New section 93CD substituted
93CDContinuation of weekly payments after second entitlement period
35New section 93CDA inserted
93CDAEntitlement under section 93CD not affected by certain circumstances
36Repeal of section 93DA
37New section 93CE inserted
93CECompensation in the form of superannuation contributions
38Consequential amendment of section 59
39State average weekly earnings
40Amendment of section 96
41Amendment of section 96A
42Amendment of section 97
43New section 109AA inserted
109AAEmployer may request reasons for decision on a claim
44New section 252L inserted
252LSupreme Court—limitation of jurisdiction
45Amendment of section 114
46New section 114AA inserted
114AATermination of compensation in the form of superannuation contributions
47New sections 114EA and 114EB inserted
114EAOutstanding superannuation contributions
114EBAlteration or termination of superannuation contributions
PART 5—TREATMENT EXPENSES
48Prior approval of medical and like services
49Amendment of section 99—extension to modifications of
home or car50Notice of cessation of compensation under section 99
51Repeal of section 99AAA
52Limits applying to contributions required towards supported accommodation costs
PART 6—LUMP SUM BENEFITS
53Amendment of section 91
54Compensation for non-economic loss
55Alignment of lump sum and common law pain and suffering damages
56Amendment of section 100
PART 7—ACCESS TO JUSTICE FOR SERIOUSLY INJURED WORKERS
57Actions for damages—amendment of section 134AB
58New section 134ABAA inserted
134ABAADetermination of serious injury application
following death of worker
59New section 134ABB inserted
134ABBCalculation of limitation of actions period
60Repeal of section 134AD
61Actions for damages—amendment of section 135A
62New section 135BBA inserted
135BBAActions by terminally ill workers continued after
death of worker
63New section 135AD inserted
135ADLimitation of Actions Act 1958
PART 8—PAYMENTS FOR FAMILY MEMBERS
FOLLOWING WORK-RELATED DEATHS
64Definition
65Jurisdiction of Magistrates' Court—amendment of section 43
66Consequential amendments
67Compensation for death of a worker—amendment of
section 9268Revised compensation for death of worker—amendment of section 92A
69New section 92AA inserted
92AAReimbursement of expenses incurred by
non-dependent family members of a deceased worker
70Weekly pensions for dependants of worker who dies—amendment of section 92B
71New section 92D inserted
92DProvisional payment
72Indexation—amendment of section 100
73New section 252H inserted
252HSupreme Court—limitation of jurisdiction
PART 9—TRANSPARENCY IN DECISION-MAKING AND EFFICIENT RESOLUTION OF DISPUTES
74Definitions
75Jurisdiction of the Magistrates' Court—amendment of
section 4376Medical questions—amendment of section 45
77New section 48A inserted
48AUse of documents relating to worker's claim
78Certain proceedings referred for conciliation—amendment
of section 4979Appointment of Conciliation Officers—amendment of section 52D
80Substitution of section 52F
52FSenior Conciliation Officer
52FAData to be collected by the Senior Conciliation
Officer
81Removal from office—amendment of section 52I
82New section 55AB inserted
55ABProduction and disclosure of information
83Procedures before Conciliation Officers—amendment of section 56
84Conciliation of disputes—amendment of section 57
85Disputes relating to weekly payments—amendment of
section 5986Certain evidence inadmissible in proceedings—amendment
of section 61A87Costs—amendment of section 62
88Establishment and constitution—amendment of section 63
89Procedures and powers—amendment of section 65
90Opinions—amendment of section 68
91New Division 3AA inserted in Part IV
Division 3AA—Employer objections
114HDefinition
114IObjection by employer in respect of liability
114JObjection lodged out of time
114KAuthority may refuse to review a decision to which a claimed employer has objected
114LWithdrawal of lodged objection
114MRequest for information and suspension of review
114NDecision following review
114OAppeals
114PGrounds of appeal
114QHearing of appeal by Supreme Court
114RCosts of worker
92New section 252M inserted
252MSupreme Court—limitation of jurisdiction
93Amendment of Magistrates' Court Act 1989
PART 10—EMPLOYER PREMIUMS
Division 1—Accident Compensation Act 1985
94Definitions
95Section 5C substituted and new sections 5D and 5E inserted
5CValue of remuneration comprising fringe benefits
5DRemuneration—motor vehicle allowance
5ERemuneration—accommodation allowance
96New Division 4 inserted in Part II
Division 4—Independent review
35Review of setting of premium and contributions by self‑insurers
97New section 248AB inserted
248ABFalse or misleading statements
98Investigation of fraud—amendment of section 248B
99New section 248BA inserted
248BALiability of premium adviser
Division 2—Accident Compensation (WorkCover Insurance) Act 1993
100Definitions
101Compulsory WorkCover insurance—amendment of section 7
102WorkCover insurance policy—amendment of section 9
103Premiums order—general provisions—amendment of
section 16104New section 17A inserted
17AAuthority may serve notice of premium
105Adjustment of premium—amendment of section 21
106New section 21A inserted
21APremium notices in respect of deemed policy periods
107Repeal of section 22 and consequential amendments
108New section 26A inserted
26APremium avoidance schemes
109Repeal of sections 27, 28, 28A and 28B
110Consequential amendments
111Application of review and adjustment powers—amendment
of section 31112Section 31A substituted
31ARefund of premium may be offset
113Default penalty where failure to provide full true disclosure—amendment of section 31B
114New Part 2A inserted
PART 2A—PREMIUM REVIEW
32Definition
33Employer may apply for review of premium under
this Part34Payment of premium pending review
35Review only as permitted under this Act
36Time for lodging, and form of, application for review
36AApplications for review lodged out of time
36BAuthority may decline application for review
36CWithdrawal of application for review
36DTime period for review
36ERequest for information and suspension of review
36FDetermination of review
36GPayments following review
36HInterest payable under section 36L
36IDeemed decisions of the Authority
36JAppeals
36KHearing of appeal by Supreme Court
36LPremium review by Authority at its discretion
36MAdjustment of premium after review
115Registration of section 55(2)(a) employer—amendment of section 58
116Groups—amendment of section 66
117Joint and several liability of group members—amendment of section 66A
118Evidence—amendment of section 71
119Supreme Court—limitation of jurisdiction—amendment of section 77
120Consequential amendments
PART 11—RECOVERIES
121Indemnity by third party—new subsection (4A) inserted
122Indemnity by third party—new subsections (6) to (9) inserted
123New section 252I inserted
252ISupreme Court—limitation of jurisdiction
PART 12—SELF-INSURANCE
124Definitions
125Repeal of section 33A
126Part V substituted
PART V—SELF-INSURERS
Division 1—General
139Definitions
139AStudent workers
139BMunicipal Association of Victoria as self-insurer
Division 2—Application for approval as self‑insurer
140Determination of eligibility to apply for approval as self‑insurer
141Application for approval as self-insurer
141AEstimated rateable remuneration
141BAdjustment of application fee
Division 3—Approval as self-insurer
142Approval as self-insurer
142ATerms and conditions of approval
143Notice to be given to employer if application refused
144Period that approval has effect
145Review of approval
145ARevocation of approval
145BCost associated with revocation recoverable from employer
145CNon-WorkCover employer ceases to be a self‑insurer
Division 4—Contributions to WorkCover Authority Fund
146Payment of contribution
146ASubmission of return by self-insurer
Division 5—Liability for claims for compensation
Subdivision 1—Liability of self-insurer
147Self-insurer's liability to pay compensation
147AClaims management
148Liabilities of self-insurer to be guaranteed
149Payments by Authority
Subdivision 2—Election by self-insurer to assume liability
for tail claims150Movement from scheme insurance to self-insurance
150AAcquisition of scheme-insured body corporate by self‑insurer
150BGuarantee of liability for tail claims
150CPayment of settlement amount and other arrangements on assumption of liability for tail claims
150DSubsequent divestment of scheme-insured body corporate
Subdivision 3—Employer or subsidiary of employer ceases
to be self-insurer151Employer ceases to be self‑insurer
151AGeneral provisions applying to assessment by an
actuary151BInitial assessment of liability for tail claims
151CAnnual assessment of tail claims liabilities and adjustment of payments
151DProvision of guarantees
151EReview of final revised assessment at the end of the liability period
152Subsidiary of self-insurer becomes a non-WorkCover employer
Division 6—Miscellaneous
153Guidelines
154Investigation of self-insurer by Ombudsman
155Secrecy provisions
127New Schedules 4 and 5 inserted
SCHEDULE 4—Self-insurers—Pre-application Eligibility Fee
1Pre-application eligibility fee
SCHEDULE 5—Application Fee for Approval as
Self‑insurer1Application fee
2Assessment remuneration
3Fee limit
PART 13—RETURN TO WORK
128Repeal of section 93D
129New Part VIIB inserted
PART VIIB—RETURN TO WORK
Division 1—Preliminary
189Purpose
190Obligations of employers and workers
191Part does not derogate from other provisions in Act
192Definitions
193Application of Part
Division 2—Obligations of employers
194Provide employment
195Plan return to work
196Consult about the return to work of a worker
197Nominate a return to work co-ordinator
198Make return to work information available
199Host to co-operate with labour hire employer
Division 3—Obligations of workers
200Participate in planning for return to work
201Use occupational rehabilitation services
202Participate in assessments
203Return to work
204Participate in an interview
Division 4—Termination of compensation
205Failure to comply with Division 3
206Notification of return to work
Division 5—General provisions
207Resolution of return to work issues
208Information about the employer obligation period
209Authority may give direction
210Compliance code
211Effect of compliance codes
212Disallowance of certain compliance code orders
213Effect of compliance with compliance codes
213AFunctions of Authority in respect of compliance
codes214Provisions applying to directions issued by the
Minister214ADisallowance of certain Ministerial directions
Division 6—Return to work inspectorate
Subdivision 1—Appointment of inspectors
214BInterpretation
215Appointment of inspectors
216Identity cards
Subdivision 2—Performance of functions or exercise of powers
217Inspectors subject to Authority's directions
218Power to enter
219Announcement on entry
220Report to be given about entry
221General powers on entry
222Powers in relation to obtaining information
223Return of seized things
224Power to issue Return to Work improvement notice
225Directions or conditions in a Return to Work improvement notice
226Variation or cancellation of Return to Work improvement notice
227Issue of Return to Work improvement notice
228Formal irregularity or defect in Return to Work improvement notice
229Proceedings for offence not affected by Return to
Work improvement notice230Persons must assist inspector
231Other assistance in exercising powers
232Inspector may take affidavits and statutory
declarations233Inspector may copy documents
Subdivision 3—Offences
234Offences in relation to inspections
235Offence to impersonate inspector
Subdivision 4—Review of decisions
236Which decisions are reviewable
236AInternal review
236BReview by the Tribunal
130Consequential amendments relating to this Part
131Repeal of Part VI
132New section 20E inserted
20EPower to give advice on compliance
133New sections 248D and 248E inserted
248DProtection against self-incrimination
248ELegal professional privilege and client legal privilege
not affected
134Amendment of section 252
135New section 252AA inserted
252AAProcedure if prosecution is not brought
136New section 252N inserted
252NSupreme Court—limitation of jurisdiction
137Amendment of Emergency Management Act 1986
138Amendment of Juries Act 2000
139Amendment of Long Service Leave Act 1992
140Amendment of Transport Accident Act 1986
141Amendment of Victoria State Emergency Service Act 2005
PART 14—MISCELLANEOUS
Division 1—Service Providers
142False or misleading information
143New sections 249AA—249BC inserted
249AASuspension of payments for services
249ABEffect of disqualifying offence
249BConduct of service providers
249BAFindings of relevant bodies
249BBNotice to be given before determination made
249BCAuthority may publish list of providers subject to disciplinary action
144Consequential amendment of sections 99 and 249C
Division 2—Other Amendments
145Definitions—WorkSafe Victoria
146Definitions
147New section 18A inserted
18ATrading name
148Functions of the Authority [section 20]
149Additional powers of the Authority [section 20B]
150Authorised agents [section 23]
151Appeals [section 52]
152Indexation [section 100]
153Liability to pay compensation—recovery [section 125B]
154Repeal of Division 6 of Part IV
155Power to restrict or ban agents who engage in prohibited
conduct
PART 15—REVISION OF PENALTIES
Division 1—Accident Compensation Act 1985
156Procedures before Conciliation Officers [section 56]
157Offence to not comply with direction [section 58B]
158Employer to keep registry of injuries etc. [section 101]
159Responsibilities of employer [section 108]
160Payment of weekly payments [section 114D]
161Return to work [section 123]
162Offences [section 129M]
163New section 177
177Failure to comply with a provision of this Part
164Offence of engaging in prohibited conduct [section 181]
165Consequences of prohibited conduct for legal practitioners [section 183]
166Legal practitioner and agents can be requested to certify as
to prohibited conduct [section 184]167Power to restrict or ban agents who engage in prohibited
conduct [section 186]168Warrants to enter and search [section 240A]
169New section 241 substituted
241Offences relating to a person exercising powers
under section 239 or 240
170Offences [section 242]
171Bribery [section 248AA]
172Fraud [section 248]
173False or misleading information [section 248A]
174False information [section 249]
175Obstructing officers [section 250]
176New section 251 substituted
251Undertakings
177New section 251A inserted
251AAdverse publicity orders
Division 2—Accident Compensation (WorkCover Insurance) Act 1993
178Compulsory WorkCover insurance [section 7]
179Issue and renewal of WorkCover insurance policies
[section 10]180Inspection of policies [section 12]
181Estimate of rateable remuneration [section 18]
182Revised estimates of rateable remuneration [section 20]
183Certificate of rateable remuneration [section 23]
184Information and records to be supplied by insurers
[section 39]185Payment of premiums [section 42]
186Claims against section 55(2)(a) or 55(2)(d) [section 57]
187Authority may require employer to provide information [section 60]
188Recovery of premium or penalty
189Books and accounts to be preserved [section 69]
190Warrants to enter and search [section 70]
PART 16—TRANSITIONAL PROVISIONS
191New Division 12 inserted in Part IX
Division 12—Accident Compensation Amendment
Act 2010301Definitions
302Section 5A
303 Section 14(3)
304Section 82
305Sections 82A-82D
306Section 103
307Sections 105 and 108
308Sections 108(4)
309Section 109
310Sections 242AA-242AF
311Section 55AA
312Section 93CA
313Section 93CD
314Section 93CDA
315Section 93CE
316Section 92B
317Sections 96 and 96A
318Section 109AA
319Section 114
320Section 91
321Section 98C
322Section 43 (Jurisdiction of Magistrates' Court)
323Section 45 (Medical questions)
324Section 49 (Certain proceedings referred for conciliation)
325Section 134AB (Actions for damages)
326Section 134ABAA (Determination of serious injury application following death of worker)
327Section 135A (Actions for damages)
328Section 135BBA (Actions by terminally ill workers continued after death of worker)
329Section 92 (Compensation for death of a worker)
330Section 92A (Revised compensation for death of
worker)331Section 92AA (Re-imbursement of expenses incurred
by non-dependant family members of a deceased
worker)332Section 92B (Weekly pension for dependants of
worker who dies)333Section 92D (Provisional payment)
334Section 5 (Definition of medical question)
335Section 52D (Appointment of Conciliation Officers)
336Sections 52F and 52FA (Senior Conciliation Officer
and data to be collected by Senior Conciliation
Officer)337Section 52I (Removal from office)
338Section 55AB (Production and disclosure of information)
339Section 56 (Procedures before Conciliation Officers)
340Section 57 (Conciliation of disputes)
341Section 59 (Disputes relating to weekly payments)
342Section 62 (Costs)
343Section 63 (Establishment and constitution)
344Section 65 (Procedures and powers)
345Section 68 (Opinions)
346Division 3AA of Part IV (Employer obligations)
347Sections 5(9A) and (10) and 5C to 5E (Remuneration)
348Section 138 (Indemnity by third party)
349Section 138 (Indemnity by third party)
350Part VIIB (Return to Work)
351Section 20E (Power to give advice on compliance)
352Retrospective operation of certain instruments of delegation
353Section 23
354Application for approval as self-insurer
355Terms and conditions of approval
356Period of approval and review of approval as
self-insurer357Revocation of approval [sections 145A and 145B]
358Payment of contributions and submission of or
return by self-insurer359Liability to pay compensation
360Guarantee of liabilities
361Movement from scheme insurance to self-insurance
362Acquisition of scheme-insured body corporate by
self-insurer363Employer ceases to be a self-insurer
364Sections 249AA, 249AB, 249B and 249BA
192Consequential amendment
193New Division 2 inserted in Part 7
Division 2—Accident Compensation Amendment Act 2010
78Definitions
79Section 3(1) (Estimated future claim cost)
80Section 7 (Compulsory WorkCover Insurance)
81Section 9 (WorkCover insurance policy)
82Section 16 (Premiums order—general provisions)
83Section 17A (Authority may serve notice of
premium)84Section 21 (Adjustment of premium)
85Section 21A (Premium notices in respect of deemed policy periods)
86Section 31A (Refund of premium may be offset)
87Part 2A (Premium review)
88Section 58 (Registration of section 55(2)(a)
employer)89Section 66A (Joint and several liability of group members)
90Section 71 (Evidence)
91Section 57 (Claims against 55(2)(a))
PART 17—REPEAL OF ACT
194Repeal of Act
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ENDNOTES
Accident Compensation Amendment Act 2010
No. 9 of 2010
[Assented to 23 March 2010]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1Purpose
The main purpose of this Act is to amend the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act 1993 following a review of those Acts to provide for—
(a)improved and accessible benefits;
(b)better rehabilitation and return to work outcomes;
(c)greater transparency and accountability;
(d)improved operation of the legislation.
2Commencement
(1)This Part, sections 59 and 63, Part 16 and Part 17 come into operation on the day after the day on which this Act receives the Royal Assent.
(2)Section 52 is deemed to have come into operation on 3 December 2003.
(3)Section 49(1) is deemed to have come into operation on 12 December 2007.
(4)Sections 57(4) and 57(5) are deemed to have come into operation on 17 June 2009.
(5)Part 6 (other than sections 54(6) and 56) and sections 57(2), 57(3), 60, 67, 68(1), 68(3), 68(4), 68(5), 68(6), 68(7), 68(8), 68(9), 68(10), 68(13) and 70(1) are deemed to have come into operation on 10 December 2009.
(6)Sections 42 and 45(3) come into operation on 1 January 2010.
(7)Part 2 (other than sections 9, 10 and 11), sections 19, 20 and 21, Part 4 (other than sections 42 and 45(3)), Part 5 (other than sections 49(1) and 52), sections 54(6) and 56, Part 7 (other than sections 57(2), 57(3), 57(4), 57(5), 59, 60 and 63), Part 8 (other than sections 67, 68(1), 68(3), 68(4), 68(5), 68(6), 68(7), 68(8), 68(9), 68(10), 68(13) and 70(1)), Part 9 (other than sections 74(3), 74(4), 91 and 92), Part 11, Part 14 and Part 15 come into operation on 5 April 2010.
(8)Sections 9, 10 and 11, Part 3 (other than sections 19, 20 and 21), sections 74(3), 74(4), 91 and 92, Part 10, Part 12 and Part 13 come into operation on 1 July 2010.
__________________
PART 2—WORKERS' ENTITLEMENT TO COMPENSATION
3Definitions
In section 5(1) of the Accident Compensation Act 1985 insert—
"drive includes to be in control, or in charge, of a motor vehicle;
motor vehicle means a motor vehicle within the meaning of section 3(1) of the Road Safety Act 1986;
transport accident means a transport accident within the meaning of section 3(1) of the Transport Accident Act 1986;".
4Pre-injury average weekly earnings
In section 5A of the Accident Compensation Act 1985—
(a)in subsection (1AA), for "first 26" (where twice occurring) substitute "first 52";
(b)in subsection (1AB), for "first 26" (where twice occurring) substitute "first 52";
(c)in subsection (1A) (where secondly occurring), for "first 26" (wherever occurring) substitute "first 52";
(d)in subsection (1A) (where secondly occurring), for "sections 93CA and 93CB" substitute "section 93A or 93B";
(e)in subsection (1B), for "first 26" (wherever occurring) substitute "first 52";
(f)in subsection (1B), for "sections 93CA and 93CB" substitute "section 93A or 93B".
5Calculation of additional amount
(1)In section 5A of the Accident Compensation Act 1985, the note at the foot of subsection (1B) is repealed.
(2)In section 5A(1C) of the Accident Compensation Act 1985, for "annual, sick or other paid leave" substitute "paid annual leave".
6New subsection inserted in section 5A
After section 5A(2) of the Accident Compensation Act 1985, insert—
"(2A)For the purposes of subsection (1), if during the 12 months immediately before the injury, a worker—
(a)is promoted; or
(b)is appointed to a different position—
with the result that the worker's ordinary time rate of pay is increased, any period before the promotion or appointment takes effect is to be disregarded for the purpose of calculating the worker's average weekly earnings.".
7References to $1130 substituted
In sections 5A(8) and 5A(9) of the Accident Compensation Act 1985, for "$1130" substitute "twice the State average weekly earnings".
8Definition of full time student
(1)For section 5A(10) of the Accident Compensation Act 1985 substitute—
"(10)For the purposes of subsection (9), full-time student means a person who is undertaking a course of studies as a full-time student at a post-secondary education institution within the meaning of the Education and Training Reform Act 2006, other than a student who is employed under a practical placement agreement within the meaning of Part 5.4 of that Act.
Note
The pre-injury average weekly earnings of a student at a post-secondary education institution within the meaning of Part 5.4 of the Education and Training Reform Act 2006 who is employed under a practical placement agreement under that Part is the amount deemed by operation of section 5.4.16(5) of that Act.".
(2)In section 5A(11) of the Accident Compensation Act 1985, for "$903" substitute "$1040".
(3)At the foot of section 5A(11) of the Accident Compensation Act 1985 insert—
"Note
The pre-injury average weekly earnings of a student at a school within the meaning of Part 5.4 of the Education and Training Reform Act 2006 who is employed under a work experience arrangement or a structured workplace learning arrangement within the meaning of that Part is the amount deemed by operation of section 5.4.9(6) of that Act.".
9Amendment of section 14(3)
In section 14(3) of the Accident Compensation Act 1985, omit "(other than a municipal council)".
10New section 14AA inserted
After section 14A of the Accident Compensation Act 1985 insert—
"14AA Municipal Councillors
(1)For the purposes of this Act, a Councillor, while carrying out duties as a Councillor, is deemed to be a worker.
(2)For the purposes of this Act, the Council of which a Councillor is a member is deemed, while the Councillor is carrying out duties as a Councillor, to be the employer of the Councillor.
(3)In this section—
Councillor and Council have the same respective meanings as they have in section 3(1) of the Local Government Act 1989.
(4)The Minister may make guidelines for the purposes of this section specifying duties performed by a Councillor that may be taken not to be duties as a Councillor for the purposes of this Act.
(5)Guidelines made under subsection (4) must be published—
(a)in the Government Gazette; and
(b)on a Government Internet website.".
11New sections 16A and 17 inserted
After section 16 of the Accident Compensation Act 1985, insert—
"16A Riders and drivers in certain races
If a person is engaged to participate as—
(a)a rider in a horse race or pony race; or
(b)a driver in a harness race—
conducted as part of a mixed sports gathering within the meaning of the Racing Act 1958 held in accordance with section 19 of the Racing Act 1958—
(c)the rider or driver is deemed, for the purposes of this Act, while so participating, to be a worker; and
(d)the club, association or body of persons holding the mixed sports gathering is deemed, for the purposes of this Act, to be the employer of the rider or driver.
17Outworkers
(1)For the purposes of this Act—
(a)subject to subsection (2)—
(i)a natural person who is an outworker within the meaning of the Outworkers (Improved Protection) Act 2003 is deemed to be a worker; and
(ii)a person (other than a family entity) who engages a natural person who is an outworker to perform outwork within the meaning of the Outworkers (Improved Protection) Act 2003 is deemed to be the employer of the outworker;
(b)if a person engages a family entity to perform outwork within the meaning of the Outworkers (Improved Protection) Act 2003—
(i)each person engaged by the family entity who performs outwork within the meaning of that Act is deemed to be a worker; and
(ii)the first-mentioned person is deemed to be the employer of each person referred to in subparagraph (i).
(2)Subsection (1)(a) does not apply if the outworker does not perform any of the outwork personally but engages a person to perform all the outwork.
(3)For the purposes of the definition of family entity, the outworker or a member of the outworker’s family (relevant person), or any two or more of them together (relevant persons) are to be taken to have a controlling interest in the family entity if—
(a)where the family entity is a corporation—
(i)its directors (by whatever name called); or
(ii)a majority of its directors; or
(iii)one or more of its directors is, or are, entitled to exercise a majority in voting power at meetings of the directors—
are under an obligation or understanding to act in accordance with the directions, instructions or wishes of the relevant person or relevant persons; or
(b)where the family entity is a corporation with a share capital—the relevant person or relevant persons directly or indirectly exercise, control the exercise of, or substantially influence the exercise of more than 50% of the voting power attached to voting shares or any class of voting shares issued by the corporation; or
(c)where the family entity is a partnership—the relevant person or relevant persons together—
(i)own (whether or not beneficially) more than 50% of the capital of the partnership; or
(ii)are entitled (whether or not beneficially) to more than 50% of any profits of the partnership; or
(d)where the family entity is a trustee of a trust that carries on a business—the relevant person or relevant persons (whether or not a trustee or trustees of, or beneficiary or beneficiaries of, another trust) are beneficiaries in respect of more than 50% of the value of the interests in the trust.
(4)For the purposes of subsection (3)(d), a person who, as the result of the exercise of a power or discretion—
(a)by the trustee of a discretionary trust; or
(b)by any other person; or
(c)by a trustee of a discretionary trust and another person—
may benefit under a discretionary trust is deemed to be a beneficiary in respect of more than 50% of the value of the interests in the trust.
(5)In this section—
corporation has the same meaning as in section 57A of the Corporations Act;
family entity, in relation to an outworker, means—
(a)a corporation;
(b)a partnership;
(c)a trustee of a trust that carries on a business—
that does not engage any person other than the outworker or a member of the outworker's family and in respect of which one or more of the outworker and members of the outworker's family have a controlling interest;
member of the outworker's family, in relation to an outworker, means any of the following—partner, father, mother, grandfather, grandmother, son, daughter, grandson, granddaughter, brother, sister, uncle, aunt, nephew, niece or cousin.".
12Claims for mental injury
In section 82 of the Accident Compensation Act 1985, for subsection (2A) substitute—
"(2A)There is no entitlement to compensation in respect of an injury to a worker if the injury is a mental injury caused wholly or predominantly by any one or more of the following—
(a)management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker's employer; or
(b)a decision of the worker's employer, on reasonable grounds, to take, or not to take any management action; or
(c)any expectation by the worker that any management action would, or would not, be taken or a decision made to take, or not to take, any management action; or
(d)an application under section 81B of the Local Government Act 1989, or proceedings as a result of that application, in relation to the conduct of a worker who is a Councillor within the meaning of section 14AA.".
13Further amendment of section 82
(1)In section 82(2B) and (2C) of the Accident Compensation Act 1985, for "Compensation is not payable" substitute "There is no entitlement to compensation".
(2)In section 82(3) of the Accident Compensation Act 1985, for "compensation is not payable" substitute "there is no entitlement to compensation".
(3)In section 82 of the Accident Compensation Act 1985, for subsections (4) and (4A) substitute—
"(4)Subject to sections 82A, 82B and 82C, if it is proved that an injury to a worker is attributable to the worker's serious and wilful misconduct (including, but not limited to, being under the influence of intoxicating liquor or a drug), there is no entitlement to compensation in respect of that injury.".
(4)In section 82(5) of the Accident Compensation Act 1985, for "serious and permanent disablement" substitute "severe injury".
14Definitions
After section 82(9) of the Accident Compensation Act 1985 insert—
"(10)In this section—
management action, in relation to a worker, includes, but is not limited to, any one or more of the following—
(a)appraisal of the worker's performance;
(b)counselling of the worker;
(c)suspension or stand-down of the worker's employment;
(d)disciplinary action taken in respect of the worker's employment;
(e)transfer of the worker's employment;
(f)demotion, redeployment or retrenchment of the worker;
(g)dismissal of the worker;
(h)promotion of the worker;
(i)reclassification of the worker's employment position;
(j)provision of leave of absence to the worker;
(k)provision to the worker of a benefit connected with the worker's employment;
(l)training a worker in respect of the worker's employment;
(m)investigation by the worker's employer of any alleged misconduct—
(i)of the worker; or
(ii)of any other person relating to the employer's workforce in which the worker was involved or to which the worker was a witness;
(n)communication in connection with an action mentioned in any of the above paragraphs;
permanent blindness means—
(a)a field of vision that is constricted to 10 degrees or less of arc from central fixation in the better eye, irrespective of corrected visual acuity; or
(b)a corrected visual acuity of less than 6/60 on the Snellen Scale in both eyes; or
(c)a combination of visual defects resulting in the same degree of visual loss as referred to in paragraph (a) or (b);
severe injury means—
(a)a significant acquired permanent brain injury;
(b)permanent paraplegia;
(c)permanent quadriplegia;
(d)amputation of a limb, hand or foot;
(e)full thickness burns that—
(i)cause permanent severe disfigurement to the head or neck or an arm or a lower leg; or
(ii)result in a significant permanent inability to undertake the necessary activities of daily living;
(f)an injury that results in permanent blindness;
(g)a brachial plexus injury that results in the permanent effective loss of the use of a limb;
(h)a physical internal injury that results in a significant permanent inability to undertake the necessary activities of daily living.".
15New sections 82A to 82D inserted
After section 82 of the Accident Compensation Act 1985 insert—
"82A Circumstances in which weekly payments are reduced because of conviction for drink-driving offence
(1)This section applies if—
(a)a worker's incapacity for work results from, or is materially contributed to by, an injury that—
(i)entitles the worker to compensation in the form of weekly payments; and
(ii)was caused by a transport accident involving a motor vehicle of which the worker was the driver at the time of the accident; and
(b)in respect of such driving, the worker is convicted or found guilty of an offence under section 49(1)(b), (f) or (g) of the Road Safety Act 1986 or under a law that is declared to be a corresponding law under section 47A(2) of the Road Safety Act 1986.
(2)In respect of a worker to whom section 52 of the Road Safety Act 1986 applies, compensation in the form of weekly payments under this Part is reduced for a period of 130 weeks (whether or not consecutive) from the date on which notice of the reduction is given to the worker in accordance with section 114(10)—
(a)if the level of alcohol in the worker's blood was more than zero grams and less than 0·12 grams per 100 millilitres of blood or in the worker's breath was more than zero grams and less than 0·12 grams per 210 litres of exhaled air—by one third;
(b)if the level of alcohol in the worker's blood was not less than 0·12 grams and less than 0·24 grams per 100 millilitres of blood or in the worker's breath not less than 0·12 grams and less than 0·24 grams per 210 litres of exhaled air—by two thirds.
(3)In respect of a worker (other than a worker to whom section 52 of the Road Safety Act 1986 applies), compensation in the form of weekly payments under this Part is reduced for a period of 130 weeks (whether or not consecutive) from the date on which notice of the reduction is given to the worker in accordance with section 114(10)—
(a)if the level of alcohol in the worker's blood was not less than 0·05 grams, and less than 0·12 grams per 100 millilitres of blood or in the worker's breath not less than 0·05 grams and less than 0·12 grams per 210 litres of exhaled air—by one third;
(b)if the level of alcohol in the worker's blood was not less than 0·12 grams and less than 0·24 grams per 100 millilitres of blood or in the worker's breath not less than 0·12 grams and less than 0·24 grams per 210 litres of exhaled air—by two thirds.
(4)This section does not apply if—
(a)the injury results in death or is a severe injury within the meaning of section 82; or
(b)the worker satisfies the Authority or self-insurer that the concentration of, or presence of, alcohol in the blood or the breath of the worker did not contribute in any way to the injury.
82BCircumstances in which weekly payments are reduced because of conviction for drug-driving offence
(1)This section applies if—
(a)a worker's incapacity for work results from, or is materially contributed to by, an injury that—
(i)entitles the worker to compensation in the form of weekly payments; and
(ii)was caused by a transport accident involving a motor vehicle of which the worker was the driver at the time of the accident; and
(b)in respect of such driving, the worker is convicted or found guilty of an offence under section 49(1)(bb), (h) or (i) of the Road Safety Act 1986 or under a law of another State or of a Territory that is declared to be a corresponding law under section 47A(2) of the Road Safety Act 1986.
(2)Compensation in the form of weekly payments under this Part is reduced by one third for a period of 130 weeks (whether or not consecutive) from the date on which notice of the reduction was given to the worker under section 114(10).
(3)This section does not apply—
(a)if the injury results in death or is a severe injury within the meaning of section 82; or
(b)the worker satisfies the Authority or self-insurer that the concentration of, or presence of, drugs in his or her blood or oral fluid did not contribute in any way to the injury.
82CNo entitlement to compensation where conviction for certain serious road traffic offences
(1)A worker is not entitled to compensation under this Act in respect of an injury if—
(a)the injury was caused by a transport accident involving a motor vehicle of which the worker was the driver at the time of the accident; and
(b)in respect of that driving, the worker is convicted or found guilty of an offence under—
(i)section 49(1)(b), (f) or (g) of the Road Safety Act 1986 and the level of alcohol in the worker's blood was 0·24 grams or more per 100 millilitres of blood or in the worker's breath was 0·24 grams or more per 210 litres of exhaled air; or
(ii)sections 49(1)(a), (ba), (c), (ca), (d), (e), (ea) or (eb), 56(2) or 56(7) of the Road Safety Act 1986; or
(iii)section 318 or 319 of the Crimes Act 1958.
(2)This section does not apply—
(a)if the injury results in death or is a severe injury within the meaning of section 82; or
(b)where the worker is convicted or found guilty of an offence specified in subsection (1)(b)(i) or (iii), the worker satisfies the Authority or self-insurer that the concentration of, or presence of, alcohol in his or her blood or breath, or the concentration of, or presence of, drugs in his or her blood or oral fluid, did not contribute in any way to the injury.
82DWhere conviction or finding of guilt overturned
If—
(a)compensation in the form of weekly payments to a worker—
(i)has been reduced in accordance with section 82A or 82B; or
(ii)in accordance with section 82C, is not payable—
after the worker has been convicted or found guilty of an offence; and
(b)the conviction or finding is overturned on appeal—
the Authority or self-insurer must pay to the worker, subject to and in accordance with this Act—
(c)the amount by which each weekly payment had been reduced, or the amount that had not been paid, together with interest at the prescribed rate on each such amount, in respect of the period from the date on which the payment was due until the date on which the amount is paid.".
16New section 114BA inserted
After section 114B of the Accident Compensation Act 1985 insert—
"114BA Notice of reduction of weekly payments
(1)On becoming aware that section 82A, 82B or 82C applies to a worker who is receiving, or is entitled to receive, compensation in the form of weekly payments under this Part—
(a)the Authority or self-insurer must give written notice to the worker in accordance with section 114(10) of the reduction in the amount of the worker's weekly payments; and
(b)weekly payments must not be reduced before the notice has been given.
(2)Section 114(13) does not apply to a notice given under subsection (1) of this section.".
17New sections 239AAA, 239AAB and 239AAC inserted
After section 239 of the Accident Compensation Act 1985 insert—
"239AAA Access to police records
(1)The Chief Commissioner of Police may furnish to the Authority any information in the possession or under the control of the Chief Commissioner that the Authority requests for the purpose of the assessment by the Authority of a person's entitlement to compensation and that relates to the commission, or alleged commission, by a person of an offence—
(a)under the Road Safety Act 1986 or the Crimes Act 1958 referred to in section 82A, 82B or 82C involving conduct to which the Authority considers the injury may be attributable; or
(b)that the Authority considers may comprise serious and wilful misconduct as referred to in section 82(4), being conduct to which the Authority considers the injury may be attributable.
(2)The Authority must pay to the Chief Commissioner of Police the reasonable costs of furnishing information under subsection (1).
(3)The use of information furnished to the Authority under this section is subject to the compliance by the Authority with any relevant agreement entered into between the Authority and the Chief Commissioner of Police or, if there is no such agreement, any relevant standards established by the Commissioner for Law Enforcement Data Security under the Commissioner for Law Enforcement Data Security Act 2005.".
239AABCourt to provide certificate of conviction
(1)If—
(a)a person is convicted or found guilty of an offence—
(i)that the Authority considers may comprise serious and wilful misconduct as referred to in section 82(4), being an offence to which the injury may be attributable; or
(ii)under the Road Safety Act 1986 or the Crimes Act 1958 referred to in section 82A, 82B or 82C; and
(b)the court by which the person was convicted or found guilty made a finding as to the concentration of, or presence of, alcohol in the person's blood or breath or the concentration of, or presence of, a drug in the person's blood or oral fluid at a particular time—
the court must, at the written request of the Authority, cause a certificate with particulars of the conviction or finding of guilt and its finding as to the concentration of, or presence of, alcohol or a drug to be given to the Authority.
(2)A certificate of a court given under subsection (1) is conclusive proof of the particulars set out in it.
239AACVicRoads may disclose information to Authority
(1)The Roads Corporation may, at the written request of the Authority, disclose relevant information gained by the Corporation to the Authority for the purpose of the assessment by the Authority of a claim by a person for compensation under this Act, being relevant information that the Authority considers relates to conduct by the person that the Authority considers may be conduct to which the injury to which the claim relates may be attributable.
(2)In this section—
relevant information means details of—
(a)a conviction or finding of guilt; or
(b)an infringement notice within the meaning of the Infringements Act 2006; or
(c)the concentration of alcohol in a person's blood or breath—
that relate, or may relate to—
(d)the commission or alleged commission of an offence under the Road Safety Act 1986 or the Crimes Act 1958 referred to in section 82A, 82B or 82C; or
(e)conduct comprising serious and wilful misconduct as referred to in section 82(4).".
18Amendment of Road Safety Act 1986
Before section 92(3)(d) of the Road Safety Act 1986 insert—
"(cc)to the Authority within the meaning of the Accident Compensation Act 1985 in accordance with a request made under section 239AAC of that Act; or".
__________________
PART 3—ENSURING TIMELY ACCESS TO BENEFITS
19Amendment of section 103
(1)In section 103 of the Accident Compensation Act 1985, for subsections (1), (1A), (1B), (2), (3) and (4), substitute—
"(1)A claim for compensation must be in a form approved by the Authority in respect of that type or class of claim.
(2)A claim for compensation in the form of weekly payments must—
(a)state the date on which the worker ceased work because of the injury; or
(b)be accompanied by a medical certificate in accordance with section 105; or
(c)be supplemented at a later date by a medical certificate in accordance with section 105.
(3)A claim for compensation (other than a claim arising from the death of a worker) must include an authority, signed by the worker, authorising a provider of a medical service or hospital service to the worker in connection with the injury to which the claim relates to give to the Authority, self-insurer or employer information regarding the service relevant to the claim.
(4)Where a claim for compensation in the form of weekly payments has been given to or served on the employer or self-insurer or lodged with the Authority but was not accompanied by a medical certificate, compensation in the form of weekly payments is not payable unless and until a medical certificate in accordance with section 105 has been given to or served on the employer or self-insurer or lodged with the Authority.
(4A)A claim for compensation—
(a)must be given to or served on the employer or self-insurer; or
(b)if section 106 of this Act or Part 5 of the Accident Compensation (WorkCover Insurance) Act 1993 applies, must be lodged with the Authority.
(4B)A claim for compensation is deemed to have been given to or served on the employer or self-insurer or lodged with the Authority if it is given, served or lodged in accordance with guidelines made by the Minister.
(4C)The Minister may make guidelines for the purposes of this section specifying the manner and form in which a claim for compensation may be given, served or lodged.
(4D)Guidelines made under subsection (4C) must be published—
(a)in the Government Gazette; and
(b)on a Government Internet website.
(4E)If the employer or self-insurer or the Authority receives from a worker a claim for compensation made in accordance with this section, the employer or self-insurer or the Authority must, as soon as is reasonably practicable, give the worker acknowledgement in writing that the claim has been received.
(4F)A worker may notify the Authority that the worker has given to or served on the employer a claim for compensation in the form of weekly payments by giving to the Authority—
(a)a copy of the claim signed and dated by the worker; and
(b)a copy of the relevant medical certificate in accordance with section 105.
(4G)A claim is deemed to have been made in accordance with this section despite any material defect, omission or irregularity in the claim that relates to information that is within the knowledge of the employer or self-insurer or the Authority, as the case requires.
(4H)A claim that contains a material defect, omission or irregularity to which subsection (4G) does not apply is deemed not to have been made if, within 14 days after the claim is given to or served on the employer, lodged with the Authority or given to the self-insurer, as the case requires, the Authority or the self-insurer returns the claim to the claimant with a notice that—
(a)specifies in detail each material defect, omission and irregularity identified in the claim; and
(b)states that any period within which the claim is required to be dealt with does not commence until a claim that does not contain any specified material defect, omission or irregularity is given to, served on or lodged with the Authority or the self-insurer.".
(2)In section 103 of the Accident Compensation Act 1985—
(a)in subsection (7)(a), for "claim for weekly payments" substitute "claim for compensation in the form of weekly payments";
(b)in subsection (11)(a) for "section 103(1)(c)" substitute "section 103(4A)";
(c)in subsection (11)(b), omit "under that section";
(d)in subsection (11)(c), omit "under that Part".
20Amendment of sections 105 and 108
(1)In section 105(1) of the Accident Compensation Act 1985, for all words and expressions before paragraph (a) substitute "A medical certificate referred to in section 103 that relates to a claim for compensation that is, or includes, compensation in the form of weekly payments must—".
(2)In section 105 of the Accident Compensation Act 1985, for subsection (4) substitute—
"(4)If a worker is unable to receive compensation in the form of weekly payments because he or she does not have a medical certificate in accordance with this section, the worker may apply to the court for a determination of the entitlement of the worker to compensation under this Act.".
(3)In section 108(1) of the Accident Compensation Act 1985—
(a)for paragraph (ab) substitute—
"(ab)any claim for compensation in the form of weekly payments;
(aba)any relevant medical certificate in accordance with section 105 relating to a claim for compensation in the form of weekly payments;";
(b)in paragraph (ba), for "which is rejected by the employer" substitute "has not been paid by the employer or which the employer will not pay pending a decision by the Authority".
(4)In section 108 of the Accident Compensation Act 1985, subsection (2) is repealed.
(5)In section 108 of the Accident Compensation Act 1985, for subsection (4) substitute—
"(4)An employer who fails without reasonable cause to forward a claim for compensation in the form of weekly payments or any relevant medical certificate in accordance with section 105, whether with the claim or at a later date, to the Authority as required by this section is liable for weekly payments made by the Authority to the worker during the period—
(a)commencing—
(i)after the employer's liability under the excess under section 125A(3)(a) or (b) is reached; or
(ii)if the claim was accompanied by a medical certificate in accordance with section 105, on the day on which the claim was given to or served on the employer; or
(iii)if the claim was not accompanied by a medical certificate in accordance with section 105, on the day on which the employer received the medical certificate—
whichever is later, and ending on the later of—
(iv)the day on which the claim for compensation in the form of weekly payments is received by the Authority; or
(v)the day on which the medical certificate is received by the Authority; or
(b)if section 125A(6) applies, commencing—
(i)immediately after the employer's liability under section 125A(3)(a) or (b) has been met by the Authority; or
(ii)if the claim was accompanied by a medical certificate in accordance with section 105, on the day on which the claim was given to or served on the employer; or
(iii)if the claim is not accompanied by a medical certificate in accordance with section 105, on the day on which the employer received the medical certificate—
whichever is later, and ending on the later of—
(iv)the day on which the claim for compensation in the form of weekly payments is received by the Authority; or
(v)the day on which the medical certificate is received by the Authority.".
21New section 109 substituted
For section 109 of the Accident Compensation Act 1985, substitute—
"109 Responsibilities of self-insurers and the Authority
(1)If the Authority or a self-insurer does not give written notice of a decision to accept or reject a claim for compensation in the form of weekly payments—
(a)if the claim was accompanied by a medical certificate in accordance with section 105, within 28 days after receiving the claim; or
(b)if the claim was not accompanied by a medical certificate in accordance with section 105, within 28 days after receiving such a medical certificate—
the claim is deemed to have been accepted and the Authority or self-insurer must pay compensation in the form of weekly payments to the worker subject to and in accordance with this Act.
339Section 56 (Procedures before Conciliation Officers)
Section 56, as amended by section 83 of the amending Act, applies in respect of disputes referred to conciliation on and after the commencement date.
340Section 57 (Conciliation of disputes)
Section 57, as amended by section 84 of the amending Act, applies in respect of disputes referred to conciliation on and after the commencement date.
341Section 59 (Disputes relating to weekly payments)
Section 59, as amended by section 85 of the amending Act, applies in respect of—
(a)disputes that have been referred to conciliation and that have not been the subject of a general direction under section 59(9) immediately before the commencement date;
(b)disputes referred to conciliation on and after the commencement date.
342Section 62 (Costs)
Section 62, as amended by section 87 of the amending Act, applies in respect of disputes that have been referred to conciliation on and after the commencement date.
343Section 63 (Establishment and constitution)
Section 63, as amended by section 88 of the amending Act, applies in respect of referrals made to a Medical Panel on and after the commencement date.
344Section 65 (Procedures and powers)
Section 65, as amended by section 89 of the amending Act, applies in respect of any medical question referred to a Medical Panel on and after the commencement date.
345Section 68 (Opinions)
Section 68, as amended by section 90 of the amending Act, applies in respect of any opinion given by a Medical Panel under section 68 on and after the commencement date.
346Division 3AA of Part IV (Employer obligations)
Division 3AA of Part IV, as inserted by section 91 of the amending Act, applies in respect of a claim for compensation in respect of an injury or death under this Act that is accepted by the Authority on and after the commencement date.
347Sections 5(9A) and (10) and 5C to 5E (Remuneration)
Sections 5(9A), 5(10), 5C, 5D and 5E, as amended by sections 94 and 95 of the amending Act, apply in respect of the calculation of premium on or after the commencement date.
348Section 138 (Indemnity by third party)
Section 138(4A), as inserted by section 121 of the amending Act, applies only to contracts entered into on or after the commencement date.
349Section 138 (Indemnity by third party)
Sections 138(7), 138(8) and 138(9), as inserted by section 122 of the amending Act, apply in respect of any right of indemnity that the Authority, self-insurer or employer has, regardless of when that right came into existence, unless before the commencement date—
(a)judgment for indemnity under section 138 has been given or entered; or
(b)there has been a settlement or compromise of the claim for indemnity.
350Part VIIB (Return to Work)
(1)If, immediately before the commencement date of section 129 of the amending Act, an employer is complying with the employer's obligations under Part VI, on and after the commencement date until 31 March 2011, the employer is deemed to be complying with Part VIIB provided the employer continues to comply with the employer's obligations under Part VI as it was before its repeal.
(2)Sections 200 to 204, as inserted by section 129 of the amending Act, apply to a worker on and from the commencement date, whether or not the employer of the worker is required to comply with Part VIIB from that date.
(3)Section 194(1) in Part VIIB, as inserted by section 129 of the amending Act, applies to—
(a)claims given, served or lodged on and after the commencement date;
(b)section 105 medical certificates given, served or lodged after the commencement date.
(4)Sections 194(2), 195 and 196 in Part VIIB, as inserted by section 129 of the amending Act, apply in respect of a claim given, served or lodged—
(a)on or after the commencement date; or
(b)before the commencement date if the claim was accepted before the commencement date; or
(c)before the commencement date if the claim was neither accepted nor rejected before the commencement date; or
(d)before the commencement date if the claim was rejected before the commencement date but subsequently accepted after the commencement date.
(5)If, immediately before the commencement date, an employer is complying with sections 156(2)(a)(i) and 160, on and from the commencement date, the employer is deemed to be complying with section 195 in Part VIIB, as inserted by section 129 of the amending Act, until 31 March 2011.
(6)Sections 194(2), 195 and 196 in Part VIIB, as inserted by section 129 of the amending Act, apply to section 105 medical certificates given, served or lodged on or after the commencement date
(7)If, immediately before the commencement date, an employer is complying with section 160, on and from the commencement date, the employer is deemed to be complying with section 196 in Part VIIB, as inserted by section 129 of the amending Act, until 31 March 2011.
(8)If, immediately before the commencement date, an employer has nominated a return to work co-ordinator under sections 156(2) and 158(1), on and from the commencement date the employer is deemed to be complying with section 197(1), (2), (3) and (4) in Part VIIB, as inserted by section 129 of the amending Act, until 31 March 2011.
(9)If, immediately before the commencement date, an employer maintains an occupational rehabilitation program under sections 156, on and from the commencement date, the employer is deemed to be complying with section 198 in Part VIIB, as inserted by section 129 of the amending Act, until 31 March 2011.
(10)Despite the repeal of section 155A by section 131 of the amending Act, subsections (1) and (2) of section 155A continue to apply to claims lodged before the commencement date as if in section 115A(2) for "period specified in subsection (3)" were substituted "employment obligation period within the meaning of section 194(1)".
351Section 20E (Power to give advice on compliance)
Section 20E, as inserted by section 132 of the amending Act, applies in respect of a person's obligations arising under this Act on and after the commencement date.
352Retrospective operation of certain instruments of delegation
(1)This section applies to the following instruments—
(a)the instrument of delegation executed by the Authority on 17 November 2009 in respect of Royal Automobile Club of Victoria (RACV) Limited (ACN 004 060 833) purporting to take effect from 4.00 p.m. on 16 December 1994;
(b)the instrument of delegation executed by the Authority on 17 November 2009 in respect of Hanson Australia (Holdings) Proprietary Limited (ACN 090 994 657) purporting to take effect from midnight on 30 November 2000;
(c)the instrument of delegation executed by the Authority on 17 November 2009 in respect of Burns, Philp & Company Pty Limited (ACN 000 000 359) purporting to take effect from 4.00 p.m. on 9 July 2004;
(d)the instrument of delegation executed by the Authority on 17 November 2009 in respect of Goodman Fielder Limited (ACN 116 399 430) purporting to take effect from 4.00 p.m. on 23 December 2005;
(e)the instrument of delegation executed by the Authority on 17 November 2009 in respect of Transfield Services Limited (ACN 000 484 417) purporting to take effect from 4.00 p.m. on 1 March 2007;
(f)the instrument of delegation executed by the Authority on 17 November 2009 in respect of Crown Limited (ACN 125 709 953) purporting to take effect from midnight on 9 December 2007.
(2)Each instrument of delegation has effect from the purported date by virtue of this section.
353Section 23
Sections 23(4) and 23(5) as amended by section 150 of the amending Act apply only in respect of a contravention of, or a failure to comply with, terms and conditions occurring on or after the commencement date.
354Application for approval as self-insurer
If, on the commencement date of section 126 of the amending Act, an application for approval as a self-insurer is yet to be determined by the Authority, sections 141, 142(1), 142(2), 142(4)(b)(ii) and 144 as in force immediately before that date apply to that application.
355Terms and conditions of approval
Section 142A of Part V, as substituted by section 126 of the amending Act, applies to all self-insurers on and from the commencement date regardless of when their approval as a self-insurer took effect.
356Period of approval and review of approval as self-insurer
Sections 144 and 145 of Part V, as substituted by section 126 of the amending Act, apply to all self-insurers on and from the commencement date regardless of when their approval as a self-insurer took effect.
357Revocation of approval [sections 145A and 145B]
Sections 145A and 145B of Part V, as substituted by section 126 of the amending Act, apply to all self-insurers on and from the commencement date regardless of when their approval as a self-insurer took effect.
358Payment of contributions and submission of or return by self-insurer
Sections 146 and 146A of Part V, as substituted by section 126 of the amending Act, apply to all self-insurers on and from the commencement date regardless of when their approval as a self-insurer took effect.
359Liability to pay compensation
Section 147 of Part V, as substituted by section 126 of the amending Act, applies to all self-insurers on and from the commencement date regardless of when their approval as a self-insurer took effect.
360Guarantee of liabilities
Section 148 of Part V, as substituted by section 126 of the amending Act, applies to all self-insurers whose liabilities are assessed on or from the commencement date.
361Movement from scheme insurance to self-insurance
Section 150 of Part V, as substituted by section 126 of the amending Act, applies to any employer approved as a self-insurer on and from the commencement date.
362Acquisition of scheme-insured body corporate by self-insurer
Section 150A of Part V, as substituted by section 126 of the amending Act, applies in respect of any acquisition of a scheme-insured by a body corporate occurring on or from the commencement date.
363Employer ceases to be a self-insurer
(1)Section 151 of Part V, as substituted by section 126 of the amending Act, applies to any employer that ceases to be a self-insurer on or from the commencement date.
(2)Sections 151A, 151B, 151C, 151D and 151E of Part V, as substituted by section 126 of the amending Act, apply in respect of the assessment of tail claim liabilities of an employer to which subsection (1) applies.
364Sections 249AA, 249AB, 249B and 249BA
Sections 249AA, 249AB, 249B and 249BA, as inserted or substituted by section 143 of the amending Act, apply in relation to services provided, or that may be provided, to a worker on or after the commencement date.".
192Consequential amendment
After the heading to Part 7 of the Accident Compensation (WorkCover Insurance) Act 1993 insert—
"Division 1—General".
193New Division 2 inserted in Part 7
After Division 1 of Part 7 of the Accident Compensation (WorkCover Insurance) Act 1993 insert—
"Division 2—Accident Compensation Amendment Act 2010
78Definitions
(1)In this Division—
amending Act means the Accident Compensation Amendment Act 2010;
amending provision means a provision of the amending Act specified in a section of this Division;
commencement date means the date on which the amending provision comes into operation.
(2)Nothing in this Division limits or otherwise affects the operation of the Interpretation of Legislation Act 1984.
79Section 3(1) (Estimated future claim cost)
The definition of estimated future claim cost in section 3(1), as amended by section 100 of the amending Act, applies only in respect of notices of premium served on or after the commencement date.
80Section 7 (Compulsory WorkCover Insurance)
(1)Section 7, as amended by section 101(1) of the amending Act, applies in respect of injuries to which this Act applies on and after the commencement date.
(2)Section 7, as amended by section 101(1) of the amending Act, applies in respect of premium calculated on and after the commencement date.
(3)Section 7, as amended by section 101(3) of the amending Act, applies in respect of premium calculated on and after the commencement date.
(4)Section 7, as amended by section 101(4) of the amending Act, applies to an employer who immediately before the commencement date—
(a)has not obtained or kept in force a policy of insurance as required by section 7(1) in respect of any 5 policy periods before the commencement date; and
(b)the Authority has not commenced proceedings against the employer under section 7(6), 61(3) or 61(4).
81Section 9 (WorkCover insurance policy)
Section 9, as amended by section 102 of the amending Act, applies in respect of policies of insurance entered into on or after the commencement date.
82Section 16 (Premiums order—general provisions)
Section 16, as amended by section 103 of the amending Act, applies to any premium order made by the Governor in Council on or after the commencement date.
83Section 17A (Authority may serve notice of premium)
Section 17A, as inserted by section 104 of the amending Act, applies to notices of premium served on or after the commencement date.
84Section 21 (Adjustment of premium)
Section 21, as amended by section 105 of the amending Act, applies to notices of premium served on or after the commencement date.
85Section 21A (Premium notices in respect of deemed policy periods)
Section 21A, as amended by section 106 of the amending Act, applies to an employer who immediately before the commencement date—
(a)has not obtained or kept in force a policy of insurance as required by section 7(1); and
(b)the Authority has not commenced proceedings against the employer under section 7(6), 61(3) or 61(4).
86Section 31A (Refund of premium may be offset)
Section 31A, as substituted by section 112 of the amending Act, applies to excess premium paid to the Authority by an employer in respect of notices of premium served on the employer on or after the commencement date.
87Part 2A (Premium review)
Part 2A, as inserted by section 114 of the amending Act, applies to notices of premium served in respect of the premium year commencing in 2010.
88Section 58 (Registration of section 55(2)(a) employer)
Section 58, as amended by section 115 of the amending Act, applies to an employer who immediately before the commencement date—
(a)has not obtained or kept in force a policy of insurance as required by section 7(1); and
(b)the Authority has not commenced proceedings against the employer under section 7(6), 61(3) or 61(4).
89Section 66A (Joint and several liability of group members)
Section 66A, as amended by section 117 of the amending Act, applies on or after the commencement date, in respect of premium paid to the Authority that is in excess of what is payable by an employer.
90Section 71 (Evidence)
Section 71, as amended by section 118 of the amending Act, applies in respect of proceedings to which section 71 applies—
(a)that have not been determined or settled immediately before the commencement date;
(b)that are commenced on or after the commencement date.
91Section 57 (Claims against 55(2)(a))
Section 57, as amended by section 120 of the amending Act, applies in respect of claims for compensation given, served or lodged on and after the commencement date.".
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PART 17—REPEAL OF ACT
194Repeal of Act
This Act is repealed on 1 July 2011.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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ENDNOTES
Minister's second reading speech—
Legislative Assembly: 10 December 2009
Legislative Council: 4 February 2010
The long title for the Bill for this Act was "A Bill for an Act to amend the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act 1993, to consequentially amend certain other Acts and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 10 December 2009
Legislative Council: 4 February 2010
Absolute majorities:
Legislative Assembly: 4 February 2010
Legislative Council: 11 March 2010
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