Untitled document
Transport Accident and Accident Compensation Acts Amendment Act 2007
No. 60 of 2007
table of provisions
Section Page
Part 1—Preliminary
1Purpose
2Commencement
Part 2—Transport Accident Act 1986
3Amendment of section 3—Definitions
4Amendment of section 6—Income from personal exertion
5Amendment of section 12—Functions of the Commission
6Amendment of section 23—Commission may authorise
persons or services7Amendment of section 43—Liability for losses in first five days
8Amendment of section 46A—Degree of impairment
9Amendment of section 47—Impairment benefit
10Amendment of section 50—Partial loss of earning capacity
11Amendment of section 53—Cessation of loss of earnings payments
12New section 54A inserted
54ASafety net income benefit for persons with severe injuries
13Amendment of section 58—Surviving partner—periodical payments
14Amendment of section 60—Medical and like benefits
15Amendment of section 61—Indexation
16New Division 2A of Part 4 inserted
Division 2A—Reimbursement of private health insurers
76ACommission may reimburse private health insurer
17Amendment of section 121—Agreements with providers of ambulance services, hospital services or road accident rescue services
18Amendment of section 131—Secrecy provisions
19Amendment of section 192—Application of amendments to section 60
20New Division 4 of Part 11 inserted
Division 4—Transport Accident and Accident
Compensation Acts Amendment Act 2007193Changes that apply to all claims
194Changes that only apply to claims made on or after
the commencement date195Application of amendments to section 6
21Statute law revision
Part 3—Accident Compensation Act 1985
22Amendment of sections 5—Definitions
23Repeal of provisions relating to remuneration
24Amendment of section 5A—Pre-injury average weekly
earnings25Amendment of section 91—Assessment of impairment
26Amendment of section 99—Compensation for medical and
like services27Amendment of section 100—Indexation
28New Division 8 of Part IX inserted
Division 8—Transport Accident and Accident Compensation Acts Amendment Act 2007
296Section 91
297Section 99(1)(aa)
29Statute law revision
Part 4—Accident Compensation (WorkCover Insurance) Act 1993
30Amendment of section 3(1)—Definitions
31New sections 3A and 3B inserted
3ASuperannuation benefits relating to services
performed before 1 January 19983BSuperannuation benefits not readily related to
particular workers or their periods of service
32Transitional
Part 5—Repeal
33Repeal of Act
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Endnotes
Transport Accident and Accident Compensation Acts Amendment Act 2007
No. 60 of 2007
[Assented to 27 November 2007]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purpose
The purpose of this Act is to amend—
(a)the Transport Accident Act1986—
(i)to clarify that employer superannuation contributions are not included for the purposes of calculating weekly payments and pre-accident weekly earnings;
(ii)to improve certain benefits available under that Act;
(iii)to introduce a new safety net income benefit for persons with severe injuries;
(iv)to provide for the annual indexation of certain benefits payable under Part 3 of that Act;
(v)to extend the range of services to which an agreement under section 121 of that Act may apply;
(vi)to make statute law revision;
(b)the Accident Compensation Act 1985—
(i)to clarify that employer superannuation contributions are not included for the purposes of calculating weekly payments;
(ii)to improve certain benefits available under that Act;
(iii)to provide for the annual indexation of benefits payable under section 99(1)(aa) of that Act;
(iv)to repeal certain provisions relating to the calculation of remuneration which are to be re-enacted in the Accident Compensation (WorkCover Insurance) Act 1993;
(v)to make statute law revision;
(c)the Accident Compensation (WorkCover Insurance) Act 1993 to re-enact certain provisions relating to the calculation of remuneration.
2Commencement
(1)This Act (except sections 3(1), 4, 8, 13, 15(1), 19, 20, 22, 23, 24, 25 and 28 and Part 4) comes into operation on the day after the day on which it receives the Royal Assent.
(2)Section 19 is deemed to have come into operation on 1 January 2005.
(3)Section 15(1) is deemed to have come into operation on 1 July 2005.
(4)Sections 3(1), 4, 8, 13, 20, 22, 23, 24, 25 and 28 and Part 4 are deemed to have come into operation on 19 September 2007.
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Part 2—Transport Accident Act 1986
3Amendment of section 3—Definitions
(1)In section 3(1) of the Transport Accident Act1986, insert the following definition—
"employer superannuation contribution has the same meaning as it has in section 5(1) of the Accident Compensation Act 1985;".
(2)In section 3(1) of the Transport Accident Act1986, in paragraph (c) of the definition of medical service for "crutches, artificial members, eyes or teeth, spectacle glasses or hearing aids" substitute "artificial members, eyes or teeth, spectacle glasses, hearing aids, orthoses or mobility aides".
(3)In section 3(1) of the Transport Accident Act1986, insert the following definitions—
"member of the immediate family of a person means a partner, parent, child or sibling of the person;
mobility aides include crutches, wheelchairs and mobility scooters, but does not include motor vehicles;".
(4)In section 3(1) of the Transport Accident Act1986, insert the following definitions—
"primary care-giver means a person who provides care and attention to another person on a daily basis for a total of at least 20 hours a week;
private health insurer has the same meaning as in the Private Health Insurance Act 2007 of the Commonwealth;".
(5)In section 3(1) of the Transport Accident Act1986, insert the following definitions—
"school has the same meaning as it has in the Education and Training Reform Act 2006;
supported accommodation means—
(a)a residential facility in which residential care is provided under the Aged Care Act 1997 of the Commonwealth;
(b)a supported residential service within the meaning of section 3(1) of the Health Services Act 1988;
(c)a community residential unit within the meaning of section 3(1) of the Disability Act 2006;
(d)a group home or other residential facility approved by the Commission for the purposes of section 60;".
(6)In section 3(1) of the Transport Accident Act1986, for paragraph (c) of the definition of transportation costs substitute—
"(c)a vocational rehabilitation service; or
(d)a school by a student, including transportation costs incurred by a parent or guardian of the student in transporting the student to or from the school where the student is unable to travel to or from the school by his or her usual pre-transport accident means because of the injury sustained by the student in the transport accident;".
4Amendment of section 6—Income from personal exertion
In section 6(2) of the Transport Accident Act 1986, in the definition of income from personal exertion—
(a)in paragraph (a) omit "superannuation allowances,";
(b)for paragraph (g) substitute—
"(g)rents or dividends; or
(h)any employer superannuation contribution.".
5Amendment of section 12—Functions of the Commission
In section 12(4)(a) of the Transport Accident Act 1986 after "rehabilitation services" insert
"or disability services".
6Amendment of section 23—Commission may authorise persons or services
In section 23(1)(b) of the Transport Accident Act 1986 after "60(2)(c)," insert "60(2)(ca),".
7Amendment of section 43—Liability for losses in first five days
(1)In section 43(1C) of the Transport Accident Act 1986 for "member of the family" substitute "member of the immediate family".
(2)Section 43(1D) of the Transport Accident Act1986 is repealed.
8Amendment of section 46A—Degree of impairment
(1)In section 46A(2)(a)(i) of the Transport Accident Act 1986 after "Guides" insert
"as applicable subject to subsections (2A) and (2B)".
(2)After section 46A(2) of the Transport Accident Act 1986 insert—
"(2A)Despite anything to the contrary in the A.M.A Guides, an assessment under subsection (1) of the degree of impairment resulting from an injury must be made based on the person's current impairment as at the date of the assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the person in respect of the injury.
(2B)The A.M.A Guides apply in respect of an assessment under section 3.3d of Chapter 3 of the A.M.A Guides as if the following were omitted—
"with the Injury Model, surgery to treat an impairment does not modify the original impairment estimate, which remains the same in spite of any changes in signs or symptoms that may follow the surgery and irrespective of whether the patient has a favourable or unfavourable response to treatment".
(3)In section 46A of the Transport Accident Act 1986—
(a)in subsections (2)(a)(i), (6) and (8)(b) for "A.M.A." substitute "A.M.A";
(b)in subsection (7) for "A.M.A." substitute "A.M.A".
9Amendment of section 47—Impairment benefit
In section 47(7) of the Transport Accident Act 1986 for "section 46A(1)" substitute "sections 46A(1) and 46A(1AA)".
10Amendment of section 50—Partial loss of earning capacity
In section 50(5) of the Transport Accident Act 1986, in the definition of earner for "as a result of transport accident" substitute "as a result of a transport accident".
11Amendment of section 53—Cessation of loss of earnings payments
(1)In section 53(1) of the Transport Accident Act 1986 for "50 or 51" substitute "50, 51 or 54A".
(2)In section 53(2)(a) of the Transport Accident Act 1986 for "50 or 51" substitute "50, 51 or 54A".
12New section 54A inserted
After section 54 of the Transport Accident Act 1986 insert—
"54A Safety net income benefit for persons with severe injuries
(1)Subject to this section, the Commission is liable to pay to a person who as a result of a transport accident—
(a)suffers a severe injury and a degree of impairment that is 50 per centum or more which would otherwise entitle the person to payments under section 49, 50 or 51; and
(b)has had his or her employment terminated or can no longer sustain his or her self-employment—
a weekly payment under this section.
(2)The Commission is not liable to make a payment to a person under this section if the person unreasonably refuses to participate in—
(a)a rehabilitation program that is approved by the Commission and provided by a rehabilitation service; or
(b)a vocational rehabilitation program that is approved by the Commission and provided by a vocational rehabilitation service.
(3)Subject to subsection (4), a person's entitlement to a payment under this section ceases if he or she receives a reasonable offer of suitable employment.
(4)If a person to whom this section applies—
(a)takes up a reasonable offer of suitable employment; and
(b)has his or her employment terminated or can no longer sustain his or her self-employment—
the Commission is liable to pay to the person a weekly payment under this section.
(5)A weekly payment under this section must not exceed whichever is the lesser of—
(a)$965; or
(b)an amount equal to 80 per centum of whichever is the greater of the person's pre-termination weekly earnings or the person's pre-accident earnings.
(6)If a person receives a weekly payment under this section, the person is not entitled to receive a payment under section 49, 50, 50A or 51.
(7)In this section—
pre-termination weekly earnings in relation to an earner (other than a self-employed person) has the same meaning as pre-accident weekly earnings has in section 4(1) except that relevant day means the day on which the post accident employment was terminated;
pre-termination weekly earnings in relation to an earner who is a self-employed person has the same meaning as pre-accident weekly earnings has in section 5 except that the relevant period is the period of 12 months immediately preceding the day on which the person can no longer sustain his or her self-employment.".
13Amendment of section 58—Surviving partner—periodical payments
In section 58(6) of the Transport Accident Act 1986, in the definition of the earner's assessed earnings after "death of the earner" insert ", but does not include any employer superannuation contribution".
14Amendment of section 60—Medical and like benefits
(1)After section 60(2)(c) of the Transport Accident Act 1986 insert—
"(ca)if the person, at the time of the transport accident, was the primary care-giver in respect of a disabled or elderly member of the immediate family of the person and did not receive salary or wages in respect of that care, the reasonable costs incurred after the transport accident in employing, during the first 12 weeks after the death or injury, an authorised person to undertake in Australia the primary care of that disabled or elderly member of the immediate family of the person; and".
(2)In section 60(2A)(a) of the Transport Accident Act 1986—
(a)for "family members" substitute "any member of the immediate family of the person who is injured or dies";
(b)for "$1670" substitute "$5000".
(3)In section 60(2B) of the Transport Accident Act 1986 the definition of family member is repealed.
(4)For section 60(2D) of the Transport Accident Act 1986 substitute—
"(2D)Subsection (2E) applies if—
(a)a person is injured and admitted as an in-patient in a hospital as a result of a transport accident; and
(b)the hospital is located at least 100 kilometres from the normal residence of members of the immediate family of the person referred to in paragraph (a); and
(c)members of the immediate family incur reasonable travelling or accommodation expenses by reason of visiting the person referred to in paragraph (a).
(2E)The Commission is, subject to this Act, liable to pay as compensation to the members of the immediate family payments not exceeding $5000 in total in respect of the expenses referred to in subsection (2D)(c).".
(5)In section 60(5) of the Transport Accident Act 1986 for "$5000" substitute "$10 000 or a greater amount as may be prescribed".
(6)For section 60(9)(c) of the Transport Accident Act 1986 substitute—
"(c)who then resides in supported accommodation—".
(7)After section 60(11) of the Transport Accident Act 1986 insert—
"(11A)Despite subsection (7), the Governor in Council may, by Order published in the Government Gazette, fix limits in respect of contributions to be made by a person towards the cost of supported accommodation.
(11B)An Order made under subsection (11A)—
(a)may fix limits that vary according to the type of supported accommodation in which a person is residing;
(b)takes effect on the date that the Order is published in the Government Gazette, or on a later date specified in the Order.".
15Amendment of section 61—Indexation
(1)After section 61(2) of the Transport Accident Act 1986 insert—
"(2A)An amount shown, or calculated in accordance with a formula set out in, the table in section 47(2) must be varied, in respect of the financial year beginning on 1 July 2005 and each subsequent financial year, in accordance with the formula—
where—
Dis the amount shown, or calculated in accordance with a formula set out in, the table in section 47(2).
Eis the all groups consumer price index for Melbourne as at 15 June in the preceding financial year last published by the Australian Statistician in respect of the December quarter of that financial year.
Fis the all groups consumer price index for Melbourne as at 15 June in the year preceding the preceding financial year published by the Australian Statistician in respect of the December quarter preceding that 15 June.".
(2)After section 61(2A) of the Transport Accident Act 1986 insert—
"(2B)An amount calculated in accordance with section 54A must be varied, in respect of the financial year beginning on 1 July 2008 and each subsequent financial year, in accordance with the formula—
where—
Dis the amount calculated in accordance with section 54A.
Eis the latest average weekly earnings of all employees for Victoria as at 15 June in the preceding financial year published by the Australian Statistician in respect of the December quarter of that financial year.
Fis the average weekly earnings of all employees for Victoria as at 15 June in the year preceding the preceding financial year published by the Australian Statistician in respect of the December quarter preceding that 15 June.
(2C)The amount of $965 referred to in section 54A(5)(a) must be varied, in respect of the financial year beginning on 1 July 2008 and each subsequent financial year, in accordance with the formula—
where—
Dis the amount of $965 referred to in section 54A(5)(a).
Eis the latest average weekly earnings of all employees for Victoria as at 15 June in the preceding financial year published by the Australian Statistician in respect of the December quarter of that financial year.
Fis the average weekly earnings of all employees for Victoria as at 15 June in the year preceding the preceding financial year published by the Australian Statistician in respect of the December quarter preceding that 15 June.
(2D)The amount of $5000 referred to in section 60(2A)(a) must be varied, in respect of the financial year beginning on 1 July 2008 and each subsequent financial year, in accordance with the formula—
where—
Dis the amount of $5000 referred to in section 60(2A)(a).
Eis the all groups consumer price index for Melbourne as at 15 June in the preceding financial year last published by the Australian Statistician in respect of the December quarter of that financial year.
Fis the all groups consumer price index for Melbourne as at 15 June in the year preceding the preceding financial year published by the Australian Statistician in respect of the December quarter preceding that 15 June.".
16New Division 2A of Part 4 inserted
After Division 2 of Part 4 of the TransportAccident Act 1986 insert—
"Division 2A—Reimbursement of private health insurers
76ACommission may reimburse private health insurer
(1)Subject to this section, a private health insurer may apply to the Commission to be reimbursed in respect of the payment by the private health insurer of the costs of any hospital services, medical services or nursing services provided to a person in respect of a transport accident.
(2)An application by a private health insurer under this section must be made within the period of 12 months after whichever occurs later—
(a)the hospital services, medical services or nursing services being provided to the person; or
(b)a finding by the Tribunal that the Commission is liable under this Act to pay compensation to the person in respect of the costs of the hospital services, medical services or nursing services provided to the person.
(3)If the Commission accepts liability, or has been found by the Tribunal to be liable, under this Act to pay compensation for the hospital services, medical services or nursing services provided to the person, the Commission must pay to the private health insurer an amount determined by the Commission to be the reasonable cost of those hospital services, medical services or nursing services.".
17Amendment of section 121—Agreements with providers of ambulance services, hospital services or road accident rescue services
(1)For the heading to section 121 of the TransportAccident Act 1986 substitute—
"Agreements with providers of ambulance services, hospital services or road accident rescue services".
(2)In section 121 of the TransportAccident Act 1986 for "road accident rescue services" substitute "ambulance services, hospital services or road accident rescue services".
18Amendment of section 131—Secrecy provisions
After section 131(2)(c) of the TransportAccident Act 1986 insert—
"or
(caa)producing a document or divulging or communicating information to a private health insurer that has made an application under section 76A, being a document or information that relates to the application; or".
19Amendment of section 192—Application of amendments to section 60
(1)For the heading to section 192 of the TransportAccident Act 1986 substitute—
"Application of amendments to section 60".
(2)At the end of section 192 of the TransportAccident Act 1986 insert—
"(2)Despite section 184, sections 60(2AA), 60(2AB) and 60(2AC), as inserted by section 15 of the amending Act, only apply to a person who is injured in a transport accident that occurred on or after the date of commencement of section 15 of the amending Act.".
20New Division 4 of Part 11 inserted
After Division 3 of Part 11 of the TransportAccident Act 1986 insert—
"Division 4—Transport Accident and Accident Compensation ActsAmendment Act 2007
193Changes that apply to all claims
This Act, as amended by sections 3(2), 3(3), 3(5), 3(6), 5, 8, 9, 10, 11, 12, 14(2), 14(3), 14(4) and 15(2) of the Transport Accident and Accident Compensation Acts Amendment Act 2007, applies with respect to all transport accidents, regardless of when they occurred, and to all applications, regardless of when the applications were made.
194Changes that only apply to claims made on or after the commencement date
This Act, as amended by sections 3(4), 6, 7 and 14(1) of the Transport Accident and Accident Compensation Acts Amendment Act 2007, only applies to applications in respect of transport accidents that occur on or after the day after the day on which the Transport Accident and Accident Compensation Acts Amendment Act 2007 receives the Royal Assent.
195Application of amendments to section 6
(1)Subject to subsection (2), section 6 as amended by section 4 of the Transport Accident and Accident Compensation Acts Amendment Act 2007 applies in respect of any payment of weekly payments and pre-accident weekly earnings made on or after the commencement of section 4 of the Transport Accident and Accident Compensation Acts Amendment Act 2007 regardless of when the transport accident occurred or the application was made.
(2)If an application for review has been made to the Tribunal under section 77 before the commencement of section 4 of the Transport Accident and Accident Compensation Acts Amendment Act 2007, the application is to be determined as if section 6 had not been amended by section 4 of the Transport Accident and Accident Compensation Acts Amendment Act 2007.".
21Statute law revision
In section 134 of the Transport Accident Act 1986—
(a)omit the definition of registered medical practitioner;
(b)after the definition of medical service insert—
"registered medical practitioner means a registered medical practitioner within the meaning of the Health Professions Registration Act 2005;".
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Part 3—Accident Compensation Act 1985
22Amendment of sections 5—Definitions
(1)In section 5(1) of the Accident Compensation Act 1985—
(a)for the definition of remuneration substitute—
"remuneration has the same meaning as it has in section 3(1) of the Accident Compensation (WorkCover Insurance) Act 1993;";
(b)the definition of superannuation benefit is repealed;
(c)insert the following definition—
"employer superannuation contribution means any contribution made by an employer in respect of a worker to any scheme or fund for the payment of superannuation, retirement or death benefits including a contribution made by an employer on behalf of the worker under a salary sacrifice agreement or arrangement but excluding—
(a)any contribution in respect of a worker which is not made for the purposes of avoiding a liability on an employer under the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth; or
(b)any contribution in respect of a worker which is not made for the purposes of discharging an obligation on an employer under—
(i)any industrial award, enterprise bargaining agreement, registered industrial agreement, approved workplace agreement or other similar agreement; or
(ii)any public sector superannuation scheme, agreement or arrangement; or
(iii)any other Commonwealth or State law relating to superannuation; or
(c)any contribution, made by an employer in respect of a worker under a salary sacrifice agreement or arrangement, of a kind or class specified by the Minister by an Order published in the Government Gazette;".
(2)After section 5(8) of the Accident Compensation Act 1985 insert—
"(8A)For the purposes of sections 6(1), 8(1) and 9(2)(e), superannuation benefit has the same meaning as it has in section 3(1) of the Accident Compensation (WorkCover Insurance) Act 1993.".
23Repeal of provisions relating to remuneration
Sections 5(15), 5(16), 5(17), 5D and 5E of the Accident Compensation Act 1985 are repealed.
24Amendment of section 5A—Pre-injury average weekly earnings
(1)After section 5A(1) of the Accident Compensation Act 1985 insert—
"(1A)Despite subsection (1), the worker's pre-injury average weekly earnings do not include, and are deemed to have never included, any employer superannuation contribution.".
(2)In section 5A(6)(f) of the Accident Compensation Act 1985 after "materials" insert "or to any employer superannuation contribution".
25Amendment of section 91—Assessment of impairment
(1)In section 91(1)(a)(i) of the Accident Compensation Act 1985 after "Guides" insert "as applicable subject to subsections (1A) and (1B)".
(2)In section 91(1)(a)(ia) of the Accident Compensation Act 1985 after "subject to" insert "subsections (1A) and (1B) and".
(3)After section 91(1) of the Accident Compensation Act 1985 insert—
"(1A)Despite anything to the contrary in the A.M.A Guides, an assessment under subsection (1) of the degree of impairment resulting from an injury must be made—
(a)after the injury has stabilised; and
(b)subject to subsection (7), based on the worker's current impairment as at the date of the assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury.
(1B)The A.M.A Guides apply in respect of an assessment under section 3.3d of Chapter 3 of the A.M.A Guides as if the following were omitted—
"with the Injury Model, surgery to treat an impairment does not modify the original impairment estimate, which remains the same in spite of any changes in signs or symptoms that may follow the surgery and irrespective of whether the patient has a favourable or unfavourable response to treatment".
(4)In sections 91(7)(d), 91(7C), 91(9), 91(10) and 91(12) of the Accident Compensation Act 1985 for "A.M.A." (wherever occurring) substitute "A.M.A".
26Amendment of section 99—Compensation for medical and like services
In section 99(1)(aa) of the Accident Compensation Act 1985 for "$1960" substitute "$5000".
27Amendment of section 100—Indexation
(1)For section 100(2B)(d) of the Accident Compensation Act 1985 substitute—
"(d)section 99, other than section 99(1)(aa);".
(2)After section 100(2B) of the Accident Compensation Act 1985 insert—
"(2BA)The amount of $5000 referred to in section 99(1)(aa) must be varied, in respect of the financial year beginning on 1 July 2008 and each subsequent financial year, in accordance with the formula—
where—
Dis the amount of $5000 referred to in section 99(1)(aa).
Eis the all groups consumer price index for Melbourne as at 15 June in the preceding financial year last published by the Australian Statistician in respect of the December quarter of that financial year.
Fis the all groups consumer price index for Melbourne as at 15 June in the year preceding the preceding financial year published by the Australian Statistician in respect of the December quarter preceding that 15 June.".
28New Division 8 of Part IX inserted
After Division 7 of Part IX of the Accident Compensation Act 1985 insert—
"Division 8—Transport Accident and Accident Compensation Acts Amendment Act 2007
296Section 91
(1)Subject to subsections (2) and (3), section 91, as amended by section 25 of the Transport Accident and Accident Compensation Acts Amendment Act 2007, applies in respect of any assessment of the degree of impairment resulting from an injury, being an assessment that relates to any claim for compensation made under section 98C, irrespective of when the injury occurred or when the claim for compensation under section 98C was made.
(2)Despite subsection (1), the amendment of section 91 by section 25 of the Transport Accident and Accident Compensation Acts Amendment Act 2007 does not affect the rights of the parties in the proceedings known as Mountain Pine Furniture Pty Ltd v Taylor [2007] VSCA 146.
(3)Despite subsection (1), section 91 as in force immediately before the commencement of section 25 of the Transport Accident and Accident Compensation Acts Amendment Act 2007 continues to apply if before that commencement a worker has—
(a)made a claim for compensation under section 98C; and
(b)attended, after the injury has stabilised, at least one independent impairment examination under section 104B(4) for the purposes of assessing the degree of impairment under section 104B(5) conducted in accordance with the decision in the proceedings known as Mountain Pine Furniture Pty Ltd v Taylor [2007] VSCA 146.
297Section 99(1)(aa)
Section 99(1)(aa), as amended by section 26 of the Transport Accident and Accident Compensation Acts Amendment Act 2007, applies in respect of any claim for compensation made under that section after the commencement of section 26 of the Transport Accident and Accident Compensation Acts Amendment Act 2007, irrespective of when the injury or death occurred.".
29Statute law revision
In the Accident Compensation Act 1985—
(a)in section 5(7) for "claim lessee mine" substitute "claim, lessee, mine,";
(b)in section 252(4)(a) for "242(10) 248" substitute "242(10), 248".
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Part 4—Accident Compensation (WorkCover Insurance) Act 1993
30Amendment of section 3(1)—Definitions
(1)In section 3(1) of the Accident Compensation (WorkCover Insurance) Act 1993, for the definition of remuneration substitute—
"remuneration means any wages, remuneration, salary, commission, bonuses or allowances paid or payable (whether at piece work rates or otherwise and whether paid or payable in cash or in kind) to or in relation to a worker as such and, without limiting the generality of the foregoing, includes—
(a)any amount paid or payable by way of remuneration to a person holding an office under the Crown in right of the State or in the service of the Crown in right of the State; and
(b)any amount paid or payable under any prescribed classes of contracts to the extent to which that payment is attributable to labour; and
(c)any amount deemed under this Act or the Accident Compensation Act 1985 to be remuneration; and
(d)any amount paid or payable by a company by way of remuneration to or in relation to a director or member of the governing body of that company; and
(e)wages, remuneration, salary, commission, bonuses or allowances paid or payable whether in cash or in kind to or in relation to a worker by any person acting for or in concert or under an arrangement or understanding whether formal or informal and whether expressed or implied with an employer; and
(f)any amount paid or payable by way of commission to an insurance or time-payment canvasser or collector—
but does not include—
(g)remuneration paid or payable to a person within the meaning of section 16(1) of the Accident Compensation Act 1985 engaged by an employer to participate as a contestant in a sporting or athletic activity in respect of the services provided by the person while the person is—
(i)participating as a contestant in a sporting or athletic activity; or
(ii)engaged in training or preparation with a view to participating as a contestant in a sporting or athletic activity; or
(iii)travelling between a place of residence and the place at which the person is engaged to participate, or participating, as a contestant in a sporting or athletic activity; or
(h)remuneration paid or payable to an apprentice under a training contract made in accordance with a training scheme that is approved by the Victorian Skills Commission under Part 5.5 of the Education and Training Reform Act 2006 if the apprentice or training scheme is, or is in a class of apprentices or training schemes, declared by the Minister to be an apprentice or training scheme to which this paragraph applies; or
(i)remuneration that does not exceed the exemption limit; or
(j)any payment of compensation in respect of an injury under the Accident Compensation Act 1985 or the Workers Compensation Act 1958;
superannuation benefit means money paid or payable by an employer in respect of a worker—
(a)to or as a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; or
(b)as a superannuation guarantee charge within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth; or
(c)to or as any other form of superannuation, provident or retirement fund or scheme including—
(i)a Superannuation Holding Accounts Reserve within the meaning of the Small Superannuation Accounts Act 1995 of the Commonwealth; and
(ii)a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997 of the Commonwealth; and
(iii)a wholly or partly unfunded fund or scheme;".
(2)After section 3(2) of the Accident Compensation (WorkCover Insurance) Act 1993 insert—
"(3)A reference in the definition of superannuation benefit in subsection (1) to a worker includes a reference to any person to whom, by virtue of a paragraph of the definition of remuneration in subsection (1), an amount paid or payable in the circumstances referred to in that paragraph constitutes remuneration.
(4)For the purposes of this Act, a reference to remuneration includes a reference to superannuation benefits, other than those paid or payable in respect of services performed or rendered by a worker before 1 January 1998.
(5)For the purposes of this Act, a superannuation, provident or retirement fund or scheme is unfunded to the extent that money paid or payable by an employer in respect of a worker covered by the fund or scheme is not paid or payable during the worker's period of service with the employer.".
31New sections 3A and 3B inserted
After section 3 of the Accident Compensation (WorkCover Insurance) Act 1993 insert—
"3A Superannuation benefits relating to services performed before 1 January 1998
(1)Money paid by an employer on or after 1 January 1998 as a superannuation benefit that is alleged by the employer to be paid in respect of services performed or rendered by a worker before that day, must be evidenced to the satisfaction of the Authority in the employer's records for the calculation of premiums under this Act.
(2)In particular, the employer's records must show the manner of calculation of the benefit and any actuarial basis for it.
(3)For the purposes of subsection (2) and of any calculation of premiums to which that subsection is relevant, the certificate of a fellow or accredited member of the Institute of Actuaries of Australia to the effect that the actuarial basis on which an amount is calculated is justified is evidence and, in the absence of evidence to the contrary, proof of that fact.
(4)If records are not kept as required by this section, the Authority is entitled to assume for the purposes of the calculation of premiums, that a payment of money by an employer as a superannuation benefit on or after 1 January 1998 is an amount payable in respect of services performed or rendered by a worker on or after that day.
3BSuperannuation benefits not readily related to particular workers or their periods of service
For the purposes of any calculation of premiums, the Authority may determine—
(a)whether, and the extent to which, any money paid or payable by an employer to a superannuation, provident or retirement fund or scheme that is not identified by the employer as paid or payable in respect of a particular worker (and whether or not purporting to be so paid or payable on any actuarial basis) is to be regarded as a superannuation benefit paid or payable in respect of a particular worker; and
(b)subject to section 3A, the portion of any money paid on or after 1 January 1998 by an employer as a superannuation benefit to a wholly or partly unfunded fund or scheme, being money paid in respect of a worker (or that is to be regarded under paragraph (a) to have been so paid) who performed or rendered services to the employer on or after, as well as before, 1 January 1998, that is to be regarded as having been paid in respect of services performed or rendered before that date.".
32Transitional
At the end of section 74 of the Accident Compensation (WorkCover Insurance) Act 1993 insert—
"(2)No act, matter or thing is affected only because of the repeal of the definitions of superannuation benefit and remuneration in the Accident Compensation Act 1985, and sections 5(15), 5(16), 5(17), 5D and 5E of that Act, by sections 22 and 23 of the Transport Accident and Accident Compensation Acts Amendment Act 2007 and the re-enactment of those provisions in this Act by sections 30 and 31 of the Transport Accident and Accident Compensation Acts Amendment Act 2007.".
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Part 5—Repeal
33Repeal of Act
This Act is repealed on the first anniversary of the day on which it receives the Royal Assent.
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Endnotes
Minister's second reading speech—
Legislative Assembly: 19 September 2007
Legislative Council: 11 October 2007
The long title for the Bill for this Act was "A Bill for an Act to amend the Transport Accident Act 1986 and the Accident Compensation Act 1985, to consequentially amend the Accident Compensation (WorkCover Insurance) Act 1993 and for other purposes."
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