WorkCover Legislation Amendment Act 1995 (NSW)
New South Wales
W o r k C o v e r L e g i s l a t i o n A m e n d m e n t
A c t 1 9 9 5 N o 8 9
Contents
P age
| Name of Act | 2 |
| Commencement | 2 |
| Amendment of Workers Compensation Act 1987 | |
| No 70 | 2 |
4 Amendment of Occupational Health and Safety Act 1983 No 20
5 Amendment of Compensation Court Act 1984 No 89
6 Amendment of Construction Safety Act 1912 No 38
7 Amendment of Factories, Shops and Industries Act 1962 No 43
8 Amendment of Dangerous Goods Act 1975 No 68
9 Amendment of Workers' Compensation (Dust D iseases) Act 1942 No 14
1 0 Amendment of other Acts
WorkCover Legislation Amendment Act 1995 No 89
Contents
Page
Schedules
| 1 Amendment of Workers Compensation Act 1987 | 4 |
| 2 | Amendment | of Occupational Health and Safety Act |
1983 83
| 3 | Amendment of Compensation Court Act 1984 | 111 |
| 4 | Amendment of Construction Safety Act 1912 | 120 |
| 5 | Amendment | of Factories, Shops and Industries Act |
1962 122
| 6 | Amendment of Dangerous Goods Act 1975 | 124 |
7 Amendment of Workers' Compensation (Dust
| Diseases) Act 1942 | 128 |
| 8 | Amendment of other Acts | 132 |
Contents page 2
New South Wales
WorkCover Legislation Amendment
A c t 1995 N o 89
Act No 89, 1995
An Act to amend the Workers Compensation Act 1987 and the Compensation Court Act 1984 to make further provision with respect to workers compensation dispute resolution, claims procedures, lump sum and weekly payments of compensation and the duties of insurers, and in other respects; to amend the Occupational Health and Safety Act 1983 and associated legislation to increase penalties and to make further provision with respect to powers of inspectors and entry to the workplace, and in other respects; to make miscellaneous amendments to various other Acts; and for other purposes. [Assented to 20 December 1995]
| Section 1 | WorkCover Legislation Amendment Act 1995 No 89 |
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the WorkCover Legislation Amendment Act 1995.
2 Commencement
| (1) | This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2). |
| (2) | Schedule 1 [30] which inserts sections 69A and 69B into the Workers Compensation Act 1987, and Schedule 1 [106] to the extent that it inserts clause 9 of Part 6 of Schedule 6 to that Act, commence on the date of assent. |
3 Amendment of Workers Compensation Act 1987 N o 7 0
The Workers Compensation Act 1987 is amended as set out in
Schedule 1.
4 Amendment of Occupational Health and Safety Act 1983 No 20
The Occupational Health and Safety Act 1983 is amended as set out in Schedule 2.
5 Amendment of Compensation Court Act 1984 No 89
The Compensation Court Act 1984 is amended as set out in
Schedule 3.
6 Amendment of Construction Safety Act 1912 No 38
The Construction Safety Act 1912 is amended as set out in
Schedule 4.
7 Amendment of Factories, Shops and industries Act 1962 No 43
The Factories, Shops and Industries Act 1962 is amended as set out in Schedule 5.
| WorkCover Legislation Amendment Act 1995 No 89 | Section 8 |
8 Amendment of Dangerous Goods Act 1975 No 68
The D angerous Goods A ct 1975 is amended as set out in
Schedule 6 .
9 Amendment of Workers' Compensation (Dust Diseases) Act 1942 No 14
The W orkers' Com pensation (D ust D iseases) Act 1942 is amended as set out in Schedule 7.
10 Amendment of other Acts
The Acts specified in Schedule 8 are amended as set out in that
Schedule.
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| Schedule 1 | Amendment of Workers Compensation Act 1989 |
| S c h e d u l e 1 | Amendment of Workers Compensation |
| A c t 1987 |
(Section 3)
[ 1 ] Section 3 Definitions
Insert “or appointed” after “employed” in the definition of
conciliation officer in section 3 (1).
[2] Section 3 (1)
Insert in alphabetical order:
Commissioner means a Commissioner of the Compensation Court under the Com pensation CourtAct 1984.
Judge means a Judge of the Compensation Court under the Com pensation Court Act 1984.
[3] Section 3 (1A)
Insert after section 3 (1):
| (1A) | A reference to a worker who has been injured includes, if the worker is dead, a reference to the worker's legal personal representative or the worker's dependants, or any other person to whom or for whose benefit compensation is payable. |
[4] Section 4A
Insert after section 4:
4A Directors of uninsured employer not entitled to
compensation
If an employer that is a corporation had not obtained, or was not maintaining in force, at the relevant time a policy of insurance for the full amount of the employer's liability under this Act in respect of an injured worker and the injured worker was at the relevant time a director of the corporation, the injured worker is not entitled to any compensation under this Act in respect of that liability.
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[5] Section 7 Certain Acts not affected
Omit “Workmen 's Compensation (Broken Hill) Act 1920”
[6 ] Section 11A
Insert after section 11:
11A No compensation for psychological injury unless
employment substantial cause and not due to
reasonable actions by employer
| (1) | N o com pensation is payable under th is A ct in respect of an in jury that is a psychological in ju ry unless: | |||
| ||||
| If to ta l o r partial incapacity for w ork results from an in ju ry that is a psychological in jury , any com pensation payab le to the in jured w orker is no t to include a w eekly paym ent under D iv ision 2 (W eekly com pensation by w ay of incom e support) o f Part 3 fo r any period of incapacity after the first 3 years o f incapacity . A reference in th is subsection to a period o f incapacity for w ork includes, in the case o f separate periods of incapacity resu lting from the sam e in jury , a reference to the aggregate o f those periods. | ||||
| (3 ) | A p sy ch o lo g ic a l in ju ry is an in jury (as defined in section 4) that is a psychological o r psychiatric d iso rder. The term ex tends to include the physio logical effect o f such a d isorder on the nervous system . |
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| Schedule 1 | Amendment of Workers Compensation Act 1987 |
This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
A worker's employment is not to be regarded as a substantial cause of a psychological injury merely because the employment is a real or actual cause of the injury. The term “substantial” is used in this section in the sense of real and important.
This section does not extend the definition of in ju ry in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 92):
| (a) | use, for the purpose of describing the worker's condition, accepted medical terminology and not terminology such as “stress” or “stress condition”, and |
| (b) | include a statement of the medical practitioner's opinion concerning the likelihood of the worker's employment being a cause (and, if so, how much of a cause) of the psychological injury (with expressions such as “work related” and similar expressions not being sufficient by themselves for this purpose). |
If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the
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deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim:
| (a) | the claim is not considered to have been duly made for the purposes of section 102 until subsection (7) is complied with, and |
| (b) | court proceedings cannot be commenced in respect of the claim until subsection (7) is complied with. |
[7] Section 22A Further provisions concerning apportionment of liability under section 22
Insert after section 22A (8):
| (9) | The operation of section 22 is not to be limited because of the fact that it provides for liability to be apportioned rather than providing for payment of contributions. |
[8 ] Section 40 Weekly payments during partial incapacity—general
Omit “The regulations under section 100C may require insurers and self-insurers to refer such disputes to conciliation officers for conciliation.” from section 40 (4).
[9 ] Section 42 Current weekly wage rate
Insert after section 42 (7):
| (7A) | If the application of subsection (7) to an injured worker results in the current weekly wage rate of the worker being less than the rate that would be determined under this section if regard was only had to employment with the employer for whom the worker was working at the time of the worker's injury, a reference to the current weekly wage rate of the worker is, despite ‘that subsection, a reference to that higher rate. |
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[ 1 0 ] Section 43 Computation of average weekly earnings
Omit “at the request of” from section 43 (2). Insert instead “within 28 days, or such other period as may be prescribed, after a request from”.
[ 1 1 ] Section 43 (2)
Insert “and in accordance with any requirements of the regulations” after “in writing”.
[ 1 2 ] Section 43 (2)
Omit “Maximum penalty: 20 penalty units.”.
[ 1 3 ] Section 43 (2A) and (2B)
Insert after section 43 (2):
(2A) An employer who fails without reasonable excuse to
comply with subsection (2) is guilty of an offence.
Maximum penalty: 20 penalty units.
| (2B) | The regulations may make provision for or with respect | |||
| to: | ||||
|
[ 1 4 ] Section 43A Suitable employment
Insert “or return-to-work plan” after “rehabilitation plan” wherever occurring in section 43A (1) and (2) (a).
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[ 1 5 ] Section 55 Review of weekly payments
Insert after section 55 (2):
(2A) If on any such review a weekly payment of compensation is ended or reduced with effect from a day that is earlier than the date of the Compensation Court's order on the review, the Compensation Court may order the worker to refund the amount of any payments made to the worker to which the worker is not entitled as a result of the order on the review.
[ 1 6 ] Section 60A
Insert after section 60:
60A Worker not liable for medical, hospital and rehabilitation
charges above applicable rates
A worker is not liable to pay, and a person is not entitled to recover from a worker, any amount in respect of medical or related treatment, hospital treatment at a hospital or an occupational rehabilitation service, given or provided to the worker as a result of an injury, to the extent that the amount exceeds any applicable maximum, as follows:
| (a) | in the case of a medical or related treatment for which a sum is prescribed under section 61 (2), the applicable maximum is that prescribed sum, |
| (b) | in the case of hospital treatment at a hospital, the applicable maximum is the amount calculated as prescribed under section 62 (1) as the cost to the hospital of the treatment, |
| (c) | in the case of an occupational rehabilitation service for which a sum is prescribed under section 63A (2), the applicable maximum is that prescribed sum. |
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[1 7 ] Section 63A Rates applicable for occupational rehabilitation services
Omit section 63A (5). Insert instead:
| (5) | The regulations may exempt an employer from liability under this Division for occupational rehabilitation services unless the services are approved in the manner, or provided in the circumstances, specified in the regulations. |
[ 1 8 ] Section 65 Definitions
Insert at the end of section 65 (2) (c):
, and
| (d) | a disease mentioned in that Table. |
Section 66 Compensation for permanent injuries
Omit “$123,400” and “$150,150”.
Insert instead “$132,300” and “$160,950”, respectively.
Section 66A Registration of agreements for compensation
Omit “under section 66 for a loss that is an occupational disease
(within the meaning of section 71)” from section 66A (1) (a).
Insert instead “under section 66 or 67”.
[21] Section 66A (4A)
Omit the subsection. Insert instead:
(4A) The Authority must refuse to register an agreement unless it is satisfied that the worker received independent legal advice about the agreement before the worker entered into the agreement.
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[22] Section 66A (10)
Insert after section 66A (9):
(10) Nothing in this section prevents an agreement that is registered under this section from containing provision as to the payment of costs.
[23] Section 66B
Insert after section 66A:
66B No proceedings to enter up award on agreement for
compensation
| ( l ) | When a worker agrees to receive an amount of compensation under section 66 or 67, the Compensation Court is not to entertain proceedings for entry of an award to give effect to the agreement unless the proceedings also relate to some dispute in connection with the worker's claim for compensation under this Act. |
(2) The regulations may prescribe exceptions to this section.
[24] Section 67 Compensation for pain and suffering
Omit “$61,750” from section 67 (1). Insert instead “$66,200”.
[25] Section 67 (1A)
Insert after section 67 (1):
| (1A) | Because there is a distinction between in ju ry and loss |
| re su ltin g fro m a n in ju ry (and compensation is payable | |
| under this section only for pain and suffering resulting from a loss), the pain and suffering for which compensation is payable under this section does not include pain and suffering that results from the injury but not from the loss. |
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[26] Section 67 (3A)
Omit the subsection.
[27] Section 67 (4A)
Insert after section 67 (4):
| (4A) | It is permissible for an agreement as to the amount of compensation to be paid to a worker under this section to provide that the amount to be paid is the proportion of the maximum amount payable under this section that is the same as the proportion of the maximum amount payable under section 66 that is represented by the amount payable to the worker under that section in respect of the loss or losses concerned. This subsection does not prevent an agreement that some other amount is to be the amount to be paid to a worker under this section. |
[28] Section 67A
Insert after section 67:
67A Special provisions for HIV/AIDS
| (1) | For the purposes of section 67 (3), HIV infection and AIDS are each considered to be a most extreme case, so that the maximum amount of compensation under section 67 is payable. |
| (2) | Section 68 does not apply to a loss that is HIV infection or AIDS. |
| (3) | The regulations may make provision for methods for determining for the purposes of this Act whether a person is HIV infected or is suffering from AIDS. Regulations need not be made under this subsection and in the absence of regulations the determination of whether a person is HIV infected or suffering from AIDS is to be on the basis of medical opinion. |
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| Amendment of Workers Compensation Act 1987 | Schedule 1 |
| (4) | Compensation is not payable under section 66 or 67 for a loss that is HIV infection or AIDS if the loss resulted from voluntary sexual activity or illicit drug use. This subsection does not limit the operation of section 14. |
| (5) | In this section HIV infection means infection by the Human Immunodeficiency Virus, and A ID S means Acquired Immune Deficiency Syndrome. |
[29] Section 68A
Insert after section 68:
68A Special provisions for back, neck and pelvis impairment
| (1) | If a loss suffered by a worker as a result of an injury is permanent impairment of the back, neck or pelvis, no compensation is payable under this Division, by the employer who is liable in respect of the injury, for any proportion of the loss that is due to: | |||
| ||||
| (2) | The proportion of a loss for which no compensation is payable because of subsection (1) is the d ed u ctib le | |||
| p roportion for that loss. | ||||
| (3) | If the loss resulted from 2 or more injuries for which compensation has been paid or is payable under this Division (as referred to in section 22), there is to be no deduction under this section for any proportion of the loss that is due to any of those 2 or more injuries. | |||
| (4) | If the loss resulted from an injury to which section 15 applies (a disease that is of such a nature as to be contracted by a gradual process) there is to be no deduction under this section for any proportion of the loss that is due to the worker's employment (after the commencement of this Act) by a previous employer in employment to the nature of which the disease was due. |
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| Schedule 1 | Amendment of Workers Compensation Act 1987 |
If the loss resulted from an injury to which section 16 applies (an injury that consists in the aggravation, acceleration, exacerbation or deterioration of a disease) there is to be no deduction under this section for any proportion of the loss that is due to the worker's employment (after the commencement of this Act) by a previous employer in employment that was a contributing factor to the aggravation, acceleration, exacerbation or deterioration.
If another loss was suffered by the worker as a consequence of the permanent impairment of the back, neck or pelvis for which there is a deductible proportion under subsection (1) and that other loss and the impairment both resulted from the same injury, no compensation is payable under this Division for the proportion of the other loss that equals the deductible proportion for the impairment.
Section 68 does not apply to a loss that is permanent impairment of the back, neck or pelvis.
If there is a deductible proportion for a loss but the extent of the deductible proportion will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding litigation) that the deductible proportion is 10%, unless this assumption is at odds with the available evidence.
[30] Sections 69A and 69B
Insert after section 69:
69A No compensation for le s s than 6% hearing lo ss
| (1 ) | There is no entitlement to compensation under section 66 for a loss of hearing (the present loss) due to boilermakers deafness if the worker's total hearing loss due to boilermakers deafness is less than 6%. The worker's to ta l h ea rin g lo ss is the aggregate of the present loss and all previous losses of hearing due to boilermakers deafness. |
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| Amendment of Workers Compensation Act 1987 | Schedule1 |
Once a worker has been paid compensation under section 66 for a loss or further loss of hearing due to boilermakers deafness (whether the compensation was paid before or after the commencement of this section), the worker has no entitlement to compensation under section 66 for any further loss of hearing due to boilermakers deafness unless that further loss is at least 5%. This subsection is capable of applying to a worker on more than one occasion.
The fact that compensation is not payable for a loss or further loss of hearing because of this section does not prevent notice of injury being given or a claim being made in respect of that loss or further loss, and does not affect the operation of section 17 in respect of that loss or further loss (if and when the worker's total hearing loss reaches 6% or that further loss reaches 5%).
An example of the operation of this section is as follows (assume that all hearing losses mentioned are due to boilermakersdeafness):
A worker suffers a hearing loss of 4% (the first hearing loss that the worker has suffered). No compensation is payable under section 66 for the loss because it is less than 6%. though notice of injury can be given or a claim can be made for the hearing loss.
The worker suffers a further hearing loss of 4%, bringing the total loss to 8%. The total loss has now passed the 6% threshold and compensation is payable for the full 8%. Compensation for the initial 4% hearing loss will be payable by the earlier employer if the worker made a claim or gave notice of injury for that initial hearing loss. The worker suffers a further hearing loss of 4%. The worker is not entitled to compensation for the 4% further loss (because it is less than the 5% further loss threshold). Again, notice of injury can be given or a claim can be made for that further loss even though compensation is not payable for it.
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| Schedule 1 | Amendment of Workers compensation Act 1987 |
| (d) | The worker suffers a further hearing loss of 3%. The total further loss has now passed the 5% threshold and compensation is payable for the full 7% further loss. Each time the worker suffers a further loss of hearing after compensation has been paid for any previous loss, no compensation is payable for the further loss until it reaches 5%. |
For the purposes of determining the percentage of loss of hearing due to boilermakers deafness, that loss of hearing is to be determined as a proportionate loss of hearing of both ears, even if the loss is in one ear only. The regulations may prescribe a method for calculating the proportionate loss of hearing of both ears.
A legal practitioner or agent who acts for a worker on a claim for compensation for loss of hearing due to boilermakers deafness is not entitled to recover any costs from the worker or the employer in connection with acting on the claim if no compensation is payable on the claim because the worker's total hearing loss due to boilermakers deafness is less than 6% (even if compensation subsequently becomes payable because the worker's loss of hearing reaches 6% as a result of further hearing loss).
A worker who refuses or fails to submit himself or herself for, or who obstructs, an examination required under section 129 or 131 in connection with a claim for which no compensation is payable under section 66 because of this section is (for the purposes of that claim) presumed in the absence of evidence to the contrary to have no hearing loss due to boilermakers deafness.
A reference in this section and in section 69B to boilermakers deafness includes a reference to any deafness of similar origin.
For the purposes of the operation of section 71 in relation to compensation for loss of hearing, a reference in that section to compensation that becomes payable under this Division includes a reference to compensation that would have become payable were it not for the operation of this section.
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69B Employer's responsibility to pay for hearing lo ss tests
| (1) | An employer who would, but for the operation of section 69A, be liable to pay compensation under section 66 for a loss or further loss of hearing suffered by a worker, is not liable under Division 3 to pay the cost of a hearing test for that loss or further loss, except any of the following tests: | |||||||||||
| ||||||||||||
| (2) | The cost of a hearing test is the cost of obtaining a medical certificate, and any examination required for the certificate, as to the extent of the hearing loss concerned. | |||||||||||
| (3) | This section does not operate to require payment by an employer for the cost of obtaining any hearing test that the employer would not otherwise be liable to pay for under Division 3. |
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Section 72A Restrictions on commencing proceedings concerning hearing loss claims
Omit the section.
Section 73 Reimbursement for costs of medical certificate and examination
Insert “report or” after “means a '' in the definition of m edica l
certificate in section 73 (1).
Part 3, Division 4, Table (Compensationfor permanent injuries)
Insert after the matter relating to Foot injuries:
Bowel injury:
Permanent loss o f bowel function.............0-65
Part 3, Division 4, Table
Insert after the matter relating to Disfigurement:
Disease:
HIV infection (Human Immunodeficiency
| Virus infection) | ...................................................... 100 |
AIDS (Acquired Immune Deficiency Syndrome) . 100
[35] Part 3, Division 4, Table
Omit paragraph (g) of the Interpretation notes at the end of the Table.
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[36] Part 3, Division 4, Table
| Insert after paragraph (i) of the Interpretation notes at the end of the Table: |
| (j) | For the purposes of determining whether and to what extent a worker has suffered permanent loss of bowel function: | |||
|
[37] Section 79 Definitions
| ||
| Insert instead: |
| ad ju sta b le | am o u n t | means: |
| (a) | each of the amounts specified in sections 25, 35, 37 and 40, without regard to any adjustment under this Division, and | |||
| (b) | such of the amounts specified in section 66 or 67 as may be declared by the regulations to be an adjustable amount for the purposes of this Division, without regard to any adjustment under this Division. | |||
| b a se |
| |||
| (a) | in respect of an adjustable amount that is an amount specified in section 25, 35, 37 or 40—the number 130.8, and | |||
| (b) | in respect of any adjustable amount that is an amount specified in section 66 or 67—the number declared by the regulations to be the base index number for that adjustable amount. |
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Section 81 Wounding off
Omit “‘(being $211,850, $150,150, $123,400 or $61,750)”.
Insert instead “(being an amount specified in section 25, 66 or 67)”.
Section 92 Making of claim for compensation
Insert after section 92 (1A):
(1B) To the extent that information has been furnished or material provided in the course of the making of a claim for compensation, it is not necessary to furnish that information or provide that material when making any further claim for compensation in respect of the same injury.
[40] Section 92 (2A)-(2C)
Insert after section 92 (2):
If a claim for compensation was made by an injured worker within the period required by subsection (2), that subsection does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker's claim related.
For the purposes of subsection (2), a person is considered to have made a claim for compensation when the person makes any claim for compensation under this Act in respect of the injury or death concerned, even if the person's claim did not relate to the particular compensation in question.
If there is no entitlement to compensation under section 66 for a loss of hearing because of section 69A (No compensation for less than 6% hearing loss) notice of injury given in accordance with section 89 suffices (for the purposes of this section) as a claim for the compensation concerned.
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[41] Section92 (4)-(4E)
Omit section 92 (4). Insert instead:
| (4) | The failure to make a claim in accordance with subsection (1) is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause. | |||
| (4A) | The failure to make a claim within the period required by subsection (2) is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either: | |||
| ||||
| (4B) | The failure to make a claim within the period required by subsection (2) is not a bar to the recovery of compensation if the insurer or self-insurer concerned determines, with the approval of the Authority, to accept the claim outside the period required by subsection (2). | |||
| (4C) | If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of subsections (2) and (4A) taken to have been received when the worker first became so aware. If death results from an injury and a person who is entitled to claim compensation under this Act in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of subsections (2) and (4A) to a claim by that person, taken to be the date that the person became so aware. |
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|
[42] Section 92A Manner of making claim for compensation
Omit section 92A (2).
[43] Sections 94A and 94B
Insert after section 94:
94A Insurers to give notice and reasons when liability
disputed
| (1) | If an insurer disputes liability in respect of a claim, the insurer must give notice of the dispute to the claimant. | |||||
| (2) | The notice must contain the following: | |||||
|
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| (d) | a statement to the effect that the worker can also seek advice or assistance from the worker's trade union organisation or from a lawyer, |
| (e) | such other information as the regulations may prescribe or, subject to the regulations, as the Authority may from time to time approve and notify to insurers and self-insurers. |
The regulations may make provision for the form of and for other information to be included in or to accompany a notice under this section.
Notice is not required to be given under this section with respect to a dispute if notice has been given under section 54 with respect to the dispute and that notice contained the statements and information that a notice under this section is required to contain.
An employer against whom a claim for compensation is made under this Act may require the employer's insurer in respect of the claim to defend the claim (whether by disputing liability or otherwise). An insurer is required to comply with such a requirement, subject to the regulations.
The regulations may make provision for or with respect to the resolution of disputes between insurers and employers as to the defending of claims by insurers pursuant to a requirement under subsection (5).
94B Report about delays and the incurring of unreasonable
costs by insurers
| (1) | A Judge or Commissioner of the Compensation Court or a conciliation officer may make a report to the Authority on: | |||
|
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|
| (a) | by giving directions under section 93B to any insurer concerned, and |
| (b) | in the case of an insurer to whom Division 4 of Part 7 applies, by reducing (by such amount as the Authority considers appropriate) the management expenses relating to the insurer's statutory fund that would otherwise be payable to the insurer. |
[44] Section 96 Conciliation officers
Insert after section 96 (1):
(1A) The Governor may, on the recommendation of the Minister, appoint other suitably qualified persons to be conciliation officers for the purposes of this Act, to conciliate on disputes as and when required to do so by the Senior Conciliation Officer. Schedule 2 has effect with respect to conciliation officers appointed under this subsection.
[45] Section 97 Referral of disputes for conciliation
Insert after section 97 ( l ) :
(1A) The Compensation Court may at any stage of proceedings refer a matter in dispute between the parties to the Senior Conciliation Officer for conciliation or further conciliation by a conciliation officer.
[46] Section 98 Conciliation of disputes
Insert “having proper regard to relevant entitlements and liabilities under the Act” after “bring the parties to agreement” in section 98 (1).
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[47] Sections 98A-98D
Insert after section 98:
98A Power of conciliation officer to require information
A conciliation officer may give a direction in writing to a party to a dispute referred to the conciliation officer requiring the party:
| (a) | to produce to the conciliation officer, at a time and place specified in the direction, specified documents in the possession of the party, being documents that the conciliation officer considers relevant to the dispute concerned, or |
| (b) | to furnish specified information to the conciliation officer within a time specified in the direction, being information that the conciliation officer considers relevant to the dispute concerned. |
A conciliation officer must not give a direction under this section to a worker unless the conciliation officer is satisfied that the worker will be represented by a legal practitioner at a conciliation conference on the dispute.
A direction under this section can extend to copies of documents lodged or produced in proceedings before the Compensation Court unless the Court otherwise orders in those proceedings.
A person who fails without reasonable excuse to comply with a direction given to the person under this section is guilty of an offence.
Maximum penalty: 50 penalty units.
If a person fails without reasonable excuse to produce a document or furnish information in compliance with a direction given to the person under this section, the person cannot as a party to proceedings before the Compensation Court have the document or information
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admitted into evidence in the proceedings unless the
Court otherwise orders in the special circumstances of
the case. This subsection does not apply to a worker unless the worker was represented by a legal practitioner at the time of the failure.
98B Summons to appear at conciliation conference
| (1) | The Senior Conciliation Officer may issue a summons requiring the attendance of a party to a dispute at a conciliation conference (as defined in section 100A) on the dispute if the Senior Conciliation Officer is satisfied that the party has failed without reasonable excuse to comply with a request by a conciliation officer to attend a conciliation conference on the dispute. |
| (2) | The Senior Conciliation Officer must not issue a summons under this section requiring the attendance of a worker at a conciliation conference unless satisfied that the worker will be represented by a legal practitioner at the conciliation conference. |
| (3) | A person must not fail without reasonable excuse to comply with a summons served on the person under this section. |
| Maximum penalty: 50 penalty units. |
98C Role for conciliation officer in preparing for medical
panel
| (1) | When a dispute referred to a conciliation officer concerns compensation payable under section 66 and it appears to the conciliation officer that any issues in dispute may be appropriate for referral to a medical panel, the Conciliation officer can take such steps as may be necessary or desirable for the purpose of ensuring that the matter is properly prepared for referral to a medical panel. |
| (2) | The conciliation officer can assist any party with respect to the making of an application under section 131 for referral of a medical dispute to a medical panel. |
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(3) The conciliation officer can refer a completed application to the Senior Conciliation Officer for forwarding on to the registrar of the Court, and any such application is taken to have been made by the party or parties on whose behalf it was forwarded to the registrar.
98D Certificates as to conciliation of disputes
The Senior Conciliation Officer is required, on the application of any person who is or has been a party to conciliation of a dispute under this Division, to issue to the person free of charge a conciliation certificate for the dispute. The Senior Conciliation Officer may delegate to any conciliation officer the function of issuing a conciliation certificate.
A conciliation officer may, during or after completion of conciliation of a dispute by the conciliation officer, issue to any party to the dispute on application by the party a conciliation certificate for the dispute.
A conciliation certificate is a certificate as to such of the following matters as the person applying for the certificate requests:
whether a dispute with respect to a claim under this Act is or has been the subject of conciliation under Division 2,
the date of referral of the dispute to conciliation,
the current position (as at the date of the certificate) with respect to conciliation of the dispute,
any final outcome of the conciliation (including, if applicable, matters identified as remaining in dispute at the conclusion of the conciliation),
whether (and, if so, how) a particular party to the dispute has in the opinion of the conciliation officer unreasonably failed to participate in conciliation.
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|
[48] Section 99 Control and direction of conciliation officers
Insert after section 99 (1):
| (1A) | Subject to subsection (1), Conciliation officers are, in the exercise of their functions, subject to the general control and direction of the Senior Conciliation Officer. |
(1B) Subsection (1) does not prevent the making of arrangements for the training of conciliation officers, and does not prevent conciliation officers obtaining advice, to ensure consistently correct application of the provisions of this Act and the regulations.
| (l C) | Conciliation officers are subject to guidelines issued by the Senior Conciliation Officer with respect to the procedures to be followed in the conciliation of disputes, being guidelines issued for the purpose of achieving consistency in the application of the provisions of this Act and the regulations. Any such guidelines are subject to the regulations under section 100C. |
[49] Section 100A Proceedings before conciliation officers
Omit “not” from section 100A (2).
[5 0 ] Section 100A (3)
Omit the subsection.
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[51] Section 100A (3A), (38)
Insert after section 100A (3):
(3A) A party to a dispute at a conciliation conference is entitled to such representation or assistance (for example, the assistance of an interpreter) as may be necessary to enable the party to adequately communicate at the conciliation conference.
| (3B) | A conciliation officer must take into account any written submission prepared by a legal practitioner acting for a party to the dispute and submitted by or on behalf of the party (whether or not the party is represented by a legal practitioner at a conciliation conference on the dispute). |
[52] Section 100C Regulations
Omit section 100C (a).
[53] Section 102 Claim for weekly payments—commencement of payments
Insert “in accordance with section 103B” after “refers the dispute'' in section 102 (2) (b).
[54] Section 102 (4) and (5)
Omit the subsections. Insert instead:
| (4 ) | If a person has a reasonable excuse for failing to commence weekly payments of compensation (or the balance of the weekly payments in dispute) within 21 days after the claim for compensation is duly made, subsections (1) and (2) apply to the weekly payments as if a reference in those subsections to 21 days were a reference to the period that ends: | |||
| ||||
| whichever is earlier. |
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[55] Sections 103A, 103B
Insert after section 103:
103A Disputes about continuation of weekly payments to be
referred to conciliation within 21 days
If there is a dispute as to liability to continue to make weekly payments of compensation, the person making the weekly payments must, within 21 days after the dispute arises, refer the dispute in accordance with section 103B for conciliation under Division 2.
Maximum penalty: 50 penalty units.
For the purposes of this section, a dispute as to liability to make weekly payments of compensation for a period of incapacity (or alleged incapacity) is not considered to have arisen unless the worker has provided to the person making the payments a certificate by a medical practitioner certifying with respect to the worker's incapacity during that period.
For the purposes of this section, a dispute as to liability to make weekly payments of compensation is considered to have arisen:
| (a) | on the commencement of the period of incapacity (or alleged incapacity) to which the reduction or discontinuation of payments relates, unless paragraph (b) applies, or |
| (b) | if the certificate referred to in subsection (2) is provided by the worker after the commencement of that period-w hen that certificate is provided by the worker. |
A person's failure to refer a dispute for conciliation under Division 2 in accordance with this section is not a contravention of this section if the dispute has already been referred by the claimant for conciliation under Division 2.
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103B How disputes about weekly payments are to be referred
to conciliation
| (1) | For the purposes of this Division, a dispute about weekly payments of compensation is referred to conciliation under Division 2 by forwarding the following material to the Senior Conciliation Officer: | |||||||||
| ||||||||||
| (2) | This section applies only to the referral of a dispute by the person on whom the claim was made or the person making the weekly payments of compensation. It does not apply to the referral of a dispute by the person claiming weekly payments of compensation. |
[56] Section 105 Maximum period of weekly payments of compensation under direction of conciliation officer
Insert “constituted by a commissioner” after “Compensation Court” in section 105 (2).
[57] Section 106 Revocation of directions of conciliation officer
Insert “constituted by a commissioner” after “Compensation Court” in section 106 (2).
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[58] Part 4, Division 3A
Insert after section 106C:
|
106D Restrictions on commencing court proceedings about
weekly payments
A worker cannot commence court proceedings in respect of weekly payments of compensation unless:
| (a) | the person on whom a claim for the compensation was duly made has failed to commence weekly payments within 21 days, or |
| (b) | if that person has commenced those paym ents-a dispute has arisen as to liability to continue to make those weekly payments (as referred to in section 103A) and a period of 21 days has elapsed since the dispute arose. |
A worker cannot commence court proceedings in respect of re la ted co m p en sa tio n until subsection (1) allows the commencement of proceedings in respect of the weekly payments of compensation concerned. Related compensation is compensation under Division 3 of Part 3 that relates to the incapacity for work to which the weekly payments of compensation relate.
This section does not prevent the commencement of court proceedings in any of the following circumstances:
| (a) | if the proceedings concern an application for a determination under section 53, |
| (b) | if the proceedings concern weekly payments of compensation that are the subject of an award already made by the Compensation Court, |
| (c) | if the proceedings concern weekly payments of compensation in respect of an injury received before the commencement of this Act, |
| (d) | any circumstances prescribed by the regulations. |
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106E Restrictions on commencing court proceedings for lump
sum compensation
A worker cannot commence court proceedings in respect of compensation under section 66 until:
| (a) | 12 weeks after a claim for the compensation is duly made, or |
| (b) | if the person on whom the claim is made has, within that 12 weeks, proceeded to deal with and decide the claim with reasonable promptness and duly applied under section 131 for reference of the matter to a medical p a n e l- l4 days after the panel has given its certificate under that section, |
whichever is later. However, this subsection does not prevent the commencement of court proceedings by a worker in respect of compensation under section 66 after a period of 16 weeks has elapsed since a claim for the Compensation was duly made, so long as the worker has responded to any offer of settlement made to the worker during that period.
A worker cannot commence court proceedings in respect of compensation under section 67 for pain and suffering resulting from a loss, or for related compensation, until subsection (1) allows the commencement of proceedings in respect of compensation under section 66 for the loss. Related compensation is compensation under Division 3 of Part 3 that relates to that loss or pain and suffering.
When a claim that is the subject of court proceedings is amended to include a claim (or further claim) for compensation under section 66, the proceedings are to be adjourned until:
| (a) | 12 weeks after the claim was amended, or |
| (b) | 12 weeks after the worker has provided the employer with particulars (including a supporting medical report) sufficient to enable the employer to ascertain the nature and amount of the compensation to which the amendment relates, |
whichever is later.
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The parties to proceedings can agree, or the Compensation Court can order, that there be no adjournment or a shorter adjournment of the proceedings under subsection (3).
A claim for compensation that is the subject of court proceedings cannot be amended to include a claim for compensation under section 67 unless the amendment includes particulars of the amount of compensation claimed under that section. The amount claimed is not to be stated to be the maximum amount of compensation under that section except in a most extreme case, as referred to in section 67 (3).
If a worker joins another person as a party to proceedings in respect of a claim for compensation under section 66 or 67 without having made a claim on that person before commencing the proceedings, the Compensation Court may, if it considers that the failure to make a claim on the person has prejudiced the person in respect of the proceedings, adjourn the proceedings for such period as the Court considers appropriate to enable the person to properly consider the claim.
This section does not prevent the commencement of court proceedings in such circumstances (if any) as may be prescribed by the regulations.
For the purposes of this section a person is not considered to have dealt with a claim with reasonable promptness unless the person has, within 21 days (or such other period as may be prescribed by the regulations) after receipt of the claim, given the claimant a written acknowledgment of receipt of the claim.
106F Restrictions on commencing court proceedings about
hospital, medical and other expenses
| (1) | A worker cannot commence court proceedings in respect of compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses) or Division 5 (Compensation for property damage) of Part 3 unless a dispute has arisen about that compensation. |
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| (2) | This section does not prevent the commencement of court proceedings of the kind referred to in subsection (1) if the proceedings are also proceedings in respect of weekly payments of compensation or compensation under section 66 or 67 and are commenced in compliance with section 106D or 106E (whichever is appropriate). |
| (3) | This section does not prevent the commencement of court proceedings in such circumstances as may be prescribed by the regulations. |
[59] Section 108
Insert after section 107A:
108 Applications to be heard together
| (1) | A person who has applied to the Compensation Court for a determination of a claim for compensation under this Act against 2 or more persons alleged to have been the employers of the worker concerned (either at the same time or at different times) is entitled, if the person so requests, to have all or any of the applications heard together. |
| If more than one employer or more than one insurer may be involved in an application for compensation or any other matter under this Act, the regulations or the rules of the Compensation Court may make provision for or with respect to requiring one of those insurers or one of those employers, the Authority or some other person, to represent the employers or insurers in any proceedings relating to the application. |
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[60] Sections 113-119
Insert after section 112:
113 Interest before order for payment
| (1) | In any proceedings in the Compensation Court, the Court may order that there is to be included, in any sum to be paid, interest at such rate as it thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section. | |||||
| (2) | Interest cannot be ordered under this section: | |||||
| ||||||
| (3) | This section does not: | |||||
|
114 Interest after order for payment
| ( 1) | Unless the Court orders in any particular case that interest be not payable, interest is payable on so much of the amount of any sum ordered to be paid by the Court as is from time to time unpaid. |
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| (2) | Interest payable under subsection (1) in respect of any sum ordered to be paid: | |||||
| ||||||
| (3) | Despite subsections (1) and (2), where: | |||||
|
115 Interest on agreed payment of lump sum compensation
| (1) | Unless the Court orders in any particular case that interest be not payable, interest is payable on so much of the amount of any sum agreed to be paid as compensation under section 66 or 67 as is from time to time unpaid. | |
| (2) | Interest payable under subsection (1) in respect of any sum so agreed to be paid: | |
|
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| (b) | is to be calculated at the rate prescribed for the purposes of section 95 (1) of the Supreme Court Act I970 or, if the regulations under this Act prescribe some other rate, at that other prescribed rate, and |
| (c) | forms part of the sum agreed to be paid, but not so as to require the payment of interest on interest. |
116 C osts
| (1) | In this section, a reference to costs is a reference to the costs payable by a party in or in relation to proceedings, including disbursements. | |||||
| (2) | Subject to this Act and the regulations and the rules of the Compensation Court and subject to any other Act: | |||||
| ||||||
| (3) | Subject to this section, the Court may not order the payment of costs by a person claiming compensation unless the Court is satisfied that the application for compensation was frivolous or vexatious, fraudulent or made without proper justification. | |||||
| (4) | If the Court is satisfied that a part only of any such application for compensation was frivolous or vexatious, fraudulent or made without proper justification, the Court may order the claimant to pay the costs relating to that part of the application. | |||||
| (5) | If a person claiming compensation appeals under section 34A (Appeal to Judge from commissioner) of the Compensation Court Act 1984, costs in or in relation to |
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the appeal are to be paid by the unsuccessful party unless the Compensation Court is of the opinion that such a requirement would be unjust in the circumstances of the case.
| (6) | The Court may order the payment of costs by any party to the proceedings who has unreasonably failed to participate in a conciliation of the dispute under this Act if it appears to the Court that the failure has resulted in unnecessary litigation or has adversely affected the rehabilitation of an injured worker. | |||||||||||
| (7) | An order of the Court for payment of costs may include: | |||||||||||
| ||||||||||||
| (8) | In this section: | |||||||||||
| applicationfor compensation includes any proceedings in connection with an application for compensation. | ||||||||||||
| compensation means compensation under this Act. | ||||||||||||
| decision includes award, order, determination, ruling and direction. |
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117 Regulations fixing maximum costs recoverable by legal
practitioners
| (1) | The regulations may make provision for or with respect to the following: | |||||||
| ||||||||
| (2) | A legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section. | |||||||
| (3) | To the extent that the regulations so provide, a legal practitioner is not entitled to be paid or recover costs of the kind referred to in subsection (1) (b) that are incurred in connection with the obtaining of any report or opinion for use for any of the following purposes and which is not used for the purpose for which it was obtained: | |||||||
| ||||||||
| (4) | Regulations under this section can fix costs and amounts by reference to costs and amounts fixed by regulations under the Legal Profession Act 1987. |
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| (5 ) | This section and any regulations under this section prevail to the extent of any inconsistency with the Legal Profession Act 1987 (in particular section 196 of that Act) and the regulations under that Act. An assessment under Division 6 of Part 11 of that Act of any costs in respect of which provision is made by a regulation under this section is to be made so as to give effect to that regulation. | |||||||||||
| (6 ) | Expressions used in this section have the same meaning as in Part 11 (Legal fees and other costs) of the Legal Profession Act 1987. | |||||||||||
| (7) | In this section costs includes: | |||||||||||
|
118 Regulations fixing maximum fees recoverable by medical
practitioners for medico-legal services
| (1 ) | The regulations may make provision for or with respect to fixing maximum fees for the provision by medical practitioners of the following services: |
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| (a) | provision of any medical opinion or certificate for use in court proceedings in connection with a claim for compensation under this Act, |
| (b) | appearance as a witness in court proceedings on a claim for compensation under this Act. |
| (2) | A medical practitioner is not entitled to be paid or recover any fee for providing a service that exceeds any maximum fee fixed by regulations under this section for the provision of the service. |
119 Limit on recovery of c o sts unreasonably incurred
| (1) | If the Compensation Court is satisfied that any costs in proceedings under this Act before the Court. were unreasonably incurred, the Court is to order that those costs are to be treated as unreasonably incurred for the purposes of this section and the Court is not to make an order for payment of those costs by any other party to the proceedings. | |||||
| (2) | Costs incurred by a party to proceedings are considered to have been unreasonably incurred for the purposes of this section only if they were incurred by the party: | |||||
|
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| (3) | A legal practitioner representing a party to proceedings in the Compensation Court is not entitled to recover from the party any costs that the Court has ordered are to be treated as unreasonably incurred. | |
| (4) | The Court may by order exempt any costs or a proportion of any costs from the operation of subsection | |
| ||
| because the legal practitioner concerned made all reasonable efforts to avoid unnecessary litigation in the proceedings or for any other reason should not be held responsible for the incurring of the costs concerned. |
Section 122 Solicitor/client costs in compensation proceedings
Omit “any proceedings under this Act (including a conciliation
conference as defined in section 100A)” from section 122 (1).
Insert instead “the claim”.
Section 122 (5) and (6)
Insert after section 122 (4):
A person must not:
| (a) | claim a lien that the person is not entitled to claim because of subsection ( l) , or |
| (b) | deduct costs from a sum awarded, ordered or agreed as compensation that the person is not entitled to deduct because of subsection (1). |
Maximum penalty: 50 penalty units.
A person who has paid an amount in respect of costs to another person that the other person was not entitled to recover because of subsection (1) is entitled to recover the amount paid as a debt in a court of competent jurisdiction or by proceedings in the Compensation court.
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[63] Section 131 Referral of medical disputes to referee or panel on application of worker or employer
Omit 131 (5B) (a) and (b). Insert instead:
| (a) | the dispute concerns a loss, or further loss, of hearing due to boilermaker's deafness or any deafness of similar origin, or |
| (b) | the dispute concerns compensation that is the subject of proceedings by reason of the amendment of a claim as referred to in section 106E (3), or |
[64] Section 131 (5C)
Omit the subsection.
[65] Sections 131A
Insert after section 131:
131A Agreement to refer medical question to independent
medical practitioner
| (1) | A worker and employer may agree to refer a medical question to a particular medical practitioner and agree that some or all of the medical practitioner's findings on that reference are to be binding on them for the purposes of the worker's claim for compensation. The medical practitioner need not be a medical referee. | |||
| (2) | In addition, the agreement can make provision for any of the following: | |||
|
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The medical practitioner to whom a medical question is referred by agreement under this section is to give a certificate as to the medical practitioner's findings on the medical question as required by the terms of reference.
The certificate is, in any proceedings, evidence (but not conclusive evidence) as to the findings certified.
A worker or employer who is a party to an agreement under this section may apply to the Authority for registration of the agreement and any medical certificate given by a medical practitioner pursuant to the agreement, and the Authority is to register the agreement and certificate, or such extract from them as the Authority considers appropriate. The Authority is to provide the Compensation Court with a copy of the agreements and certificates or the extracts from them that are registered by the Authority under this section.
The fees of the medical practitioner to whom a medical question is referred by agreement under this section are to be paid by the employer.
In this section medical question means any question (whether or not there is a dispute) as to any of the following:
| (a) | the worker's condition (including the existence, nature and extent of any loss or impairment and, if relevant, whether there exists, and the extent of, any deductible proportion under section 68A), |
| (b) | the worker's fitness for employment (including the kind of employment for which the worker is fit), |
| (c) | whether and to what extent the incapacity of the worker is due to the injury or alleged injury and whether or not there is any disagreement between the worker and the employer as to those matters. |
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[6 6 ] Section 131B
Insert before section 132:
131B Reference of medical disputes by Senior Conciliation
Officer
| (1) | When a medical dispute (as defined in section 131) is the subject of conciliation by a conciliation officer and concerns the compensation payable under section 66, the Senior Conciliation Officer may request the registrar of the Compensation Court to refer the dispute to a medical panel and the registrar is to refer the dispute accordingly. | |||
| (2) | The medical panel to whom a medical dispute is so referred is to give a certificate as to the worker's condition, in accordance with the terms of reference of the dispute. | |||
| (3) | The certificate of the medical panel is, in any proceedings, evidence (but not conclusive evidence) as to the matters certified. | |||
| (4) | If a worker, on being required so to do, refuses to submit himself or herself for examination by a medical panel to whom the medical dispute has been referred, or in any way obstructs the examination: | |||
| ||||
| is suspended until the examination has taken place. |
[67 ] Section 133 Reimbursement of worker for loss of wages and expenses associated with medical examination
Insert after section 133 (4):
| (5) | A worker who agrees under section 131A to submit himself or herself for examination by a medical practitioner is taken for the purposes of this section (except subsection (2)) to be required to submit himself or herself for examination pursuant to this Division. |
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[6 8 ] Section 136A
Insert after section 136:
136A Power to correct mistakes in medical reports or
certificates
| (1) | A medical referee or medical panel may, of the referee's or panel's own motion or on the application of a party to proceedings (and withoutformally reconvening), correct a certificate or report given by the referee or panel if it contains: | |||||||
| ||||||||
| (2) | This section applies to a medical certificate given by a medical practitioner pursuant to section 13 1A as if the medical practitioner were a medical referee. |
[69] Section 145A
Insert after section 145:
145A Recovery from directors of corporations liable to
reimburse Authority
| (1) | If a corporation is liable to reimburse the Authority an amount for a payment made under the Scheme and the amount is not recoverable from the corporation, the Authority is entitled to recover the amount from a person who was a culpable director of the corporation at the relevant time. |
| (2) | A corporation is considered to be liable to reimburse the Authority an amount for a payment made under the Scheme if the Authority is entitled to recover the amount |
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either under section 145 or under an order of the Compensation Court made on application under that section, even if the corporation has ceased to exist.
An amount is considered to be not recoverable from a corporation if the Authority certifies that it will be unable or unlikely to recover the amount from the corporation by reasonable efforts at recovery, whether because the corporation is being wound up and is unable to pay its debts, or otherwise.
A person is a culpable director of a corporation at the relevant time if
| (a) | the | corporation | contravened | section | 155 |
(Compulsory insurance for employers) in respect of a policy of insurance that would have covered the corporation for the liability to which the payment made under the Scheme related (whether or not the corporation has been proceeded against or convicted of an offence for the contravention), and
| (b) | at the time of the contravention the person was a director of the corporation. |
A person is not a culpable director of a corporation if the person establishes that:
| (a) | the corporation contravened section 155 without the person's knowledge, or |
| (b) | the person was not in a position to influence the conduct of the corporation in relation to that contravention, or |
| (c) | the person, being in such a position, used all due diligence to prevent the contravention by the corporation. |
If there is a right of recovery against more than one director of a corporation in respect of the same amount, the right is a right against all those directors jointly and severally.
A director from whom an amount is recovered under this section is entitled to recover the .amount from the corporation.
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[70 ] Part 4, Division 7
Insert after Division 6:
|
148B Definitions
| (1) | In this Division: | |||||
| agent means a person who acts, or holds himself or herself out as willing to act, as agent for a person for fee or reward in connection with a claim, but does not (unless the regulations otherwise provide) include a legal practitioner. | ||||||
| claim means a claim for compensation under this Act. | ||||||
| lawyer means a legal practitioner. | ||||||
| prohibited conduct has the meaning given by section 148C. | ||||||
| protected claim means: | ||||||
| ||||||
| (2) | Each of the following activities is considered to constitute acting as agent for a person in connection with a claim: | |||||
|
P age49
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| (d) | arranging referral of the person to a lawyer for the performance of legal work in connection with a clalm, |
(e) any other activity prescribed by the regulations. The regulations may provide that persons who engage in specified activities are not to be regarded as agents for the purposes of this Division.
(3)
148C Prohibited conduct by agents
| (1) | The following conduct by an agent is prohibited conduct for the purposes of this Division: | |||||||
|
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| (3) | The Minister may grant the permission referred to in subsection (2) (a) only if the Minister is satisfied that to do so would be in the public interest. |
| Division 6 31AQ Minister may require and publish special reports into | Miscellaneous |
accidents and dangerous occurrences
| (1) | The Minister may direct the Workcover Authority to prepare a special report for the Minister with respect to: | |||
| ||||
| (2) | The Minister may, if the Minister thinks fit, cause such a report or any part of such a report to be made public, whether by causing the report or part of the report to be published or otherwise. The Minister may table a copy of the report in Parliament. | |||
| (3) | No liability is incurred by the Crown and no personal liability is incurred by, or by any person acting at the direction of, the Minister or the Workcover Authority in respect of anything done in good faith in connection with the preparation or making public of a report under this section. | |||
| (4) | No liability is incurred by a person for publishing in good faith: | |||
| ||||
| (5) | In this section liability includes liability in defamation. |
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[29] Section 44A Industry codes of practice
Omit section 44A (7)-(9). Insert instead:
| (7) | An approved industry code of practice commences on the day when the code is published in the Gazette or, if a later commencement date is specified in the code, on that date. |
| (8) | An approved amendment of an industry code of practice commences on the day when the amendment is published in the Gazette or, if a later Commencement date is specified in the amendment, on that date. |
| (9) | An approved revocation of an industry code of practice commences on the day when the revocation is published in the Gazette or, if a later commencement date is specified in the revocation, on that date. |
[ 3 0 ] Section 45 Regulations
Omit ‘‘100” from section 45 (4). Insert instead “250” .
[31 ] Section 49 Summary procedure for offences
Insert after section 47 (1):
| (IA) | If a person is convicted of an offence against this Act, the convicting court may order the offender to pay to the WorkCover Authority the reasonable cost of examining or testing any plant, substance or thing to which the conviction relates. |
| (IB) | That cost may be recovered by the WorkCover Authority as a judgment debt against the person convicted. |
[32] Section 47 (2)
| Omit “100 penalty units” . both),” . |
Workcover Legislation Amendment Act 1995 No 89
| Amendment of Occupational Health and Safety Act 1983 | Schedule 2 |
Section 47A
Insert after section 47:
47A Court may order cause of offence to be remedied
| (1) | If a court convicts a person of an offence against this Act or the regulations in respect of a matter which appears to the court to be within the person's power to remedy, the court may, in addition to imposing a penalty provided with respect to the offence, order the person to take such steps as may be specified in the order for remedying that matter within the period specified in the order. |
| (2) | A person must not, without reasonable excuse, fail to comply with an order under this section. |
| Maximum penalty: 1,000 penalty units in the case of a corporation and 250 penalty units in any other case. | |
| (3) | The period in which an order under this section must be complied with may be extended, or further extended, by order of the court but only if application for such an extension is made before the end of that period. |
Section 49 Time for instituting proceedings for offences
Insert at the end of section 49:
| (2) | Proceedings for an offence against section 18 (Manufacturers, suppliers etc to ensure health and safety as regards plant substances for use at work) may be instituted, despite subsection (1): | |||
| ||||
| whichever provides the longer time for proceedings to be instituted. |
Workcover Legislation Amendment Act 1995 No 89
| Schedule 2 | Amendment of Occupational Health and Safety Act 1983 |
| (3) Proceedings for an offence against section 27 (Notification of accidents and other matters) may be instituted, despite subsection (1): |
| (a) | within 2 years after the act or omission alleged to constitute the offence, or |
| (b) | within 6 months after the W orkcover Authority first becomes aware of the act or omission alleged to constitute the offence, |
whichever provides the longer time for proceedings to be
instituted.
| (4) | If a coroner's inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations, proceedings in respect of that offence may be instituted, despite anything to the contrary in this section, within 2 years after the date the report was made or the inquest or inquiry was concluded, as the case may be. |
[3 5 ] Section 50 Offences by corporations
Omit section 50 (1) (a).
[36 ] Section 51A
Omit the section. Insert instead:
|
| (1) | A Court that convicts a person of an offence (the current offence) against this Act may, if the person has previously been convicted of an offence against this Act |
Workcover Legislation Amendment Act 1995 No 89
| Amendment of Occupational Health and Safety Act 1983 | Schedule 2 |
(whether the same offence or another), impose as additional penalty in respect of the current offence not exceeding the following penalties:
| (a) | if the current offence is an offence against section 15, 16, 17 or 18 of this Act—2,500 penalty units in the case of a corporation or 250 penalty units or 2 years imprisonment, or both, in any other case, or |
| (b) | if the current offence is any other offence against this Act-50%of the maximum penalty for the offence (that is, 50% of the maximum penalty that would apply but for this section). |
| (2) | For the purposes of section 47 (Summary procedure for offences), the maximum penalty provided in respect of an offence is, in the case of an offence to which this section applies, taken to include any additional penalty that may be imposed under this section. |
| (3) | This section applies even if the previous offence concerned was committed before the commencement of this section. |
[37 ] Section 51C
Insert after section 51B:
51C Requirement to give name and address
| ( l ) | An authorised officer (within the meaning of section 51B) or an inspector may require a person whom the officer or inspector reasonably suspects has committed an offence against this Act or the associated occupational health and safety legislation or any regulation under this Act or that legislation to state the person's residential address and full name and to provide reasonable proof of the person's identity. |
WorkCover Legislation Amendment Act 1995 No 89
| Schedule 2 | Amendment of Occupational Health and Safety Act 1983 | |
|
Maximum penalty: 15 penalty units.
| (3) | A person does not commit an offence against this section i f : | |||
|
Section 52 Offence: obstruction or hindering persons in exercise of powers
Omit “150”. Insert instead “500”.
Section 52
Omit “ 1 0 0 ” . Insert instead “150”.
Schedule 8 Savings and transitional provisions
Insert at the end of clause 1 (1):
WorkCover Legislation Amendment Act 1995
WorkCover Legislation Amendment Act 1995 No 89
| Amendment of Occupational Health and Safety Act 1983 | Schedule 2 |
[41] Schedule 8, Part 3
Insert after Part 2:
|
9 Definition
In this Part:
amending Act means the WorkCover Legislation
Amendment Act 1995.
10 Alternative convictions (section 15 and 16)
| (1) | The amendments made to sections 15 and 16 by the amending Act do not apply in respect of proceedings against a person for an offence against section 15 or 16 that were commenced in a court before the commencement of those amendments. |
| (2) | In respect of any proceedings against a person that are commenced in a court on or after the commencement of those amendments, the amendments apply whether the offence is alleged to have been committed before or after the commencement of those amendments. |
11 Increase in penalty that may be imposed by Local Court
| (1) | The amendment made to section 47 of this Act (Summary procedure for offences) by the amending Act does not apply in respect of proceedings for an offence against this Act or the regulations that were commenced in a Local Court before the commencement of that amendment. |
| (2) | In respect of proceedings commenced on or after the commencement of that amendment, the amendment applies whether the offence was committed before or after the commencement of the amendment. |
Workcover Legislation Amendment Act 1995 No 89
| Schedule 2 | Amendment of Occupational Health and Safety Act 1983 |
12 Power of court to order that Contravention of Act or
regulations be remedied
Section 47A of this Act (which was inserted by the amending Act) applies in respect of any person convicted of an offence against this Act or the regulations on or after the commencement of that section, even if the offence was committed before the commencement of that section.
13 Increase in time limit for institution of offence
proceedings
Section 49 (2), (3) and (4) of this Act (as inserted by the amending Act) extend to apply in respect of an act or omission constituting an offence against this Act or the regulations which occurred within 2 years before the commencement of those subsections.
14 Change in defences available to directors and managers
The amendment made to section 50 of this Act by the amending Act does not apply in respect of a contravention of this Act or the regulations that occurred before the commencement of that amendment.
15 Increased penalty for additional offence
| ( l ) | The amendment made to section 51A of this Act by the amending Act does not apply in respect of proceedings for an offence against this Act which was committed before the commencement of that amendment. |
| (2) | Section 51A , as in force immediately before that amendment, continues to apply in respect of such proceedings as if the amendment had not been made. |
WorkCover Legislation Amendment Act 1995 No 89
| Amendment of Compensation Court Act 1984 | Schedule 3 |
| Schedule 3 | Amendment of Compensation Court Act 1984 |
(Section 5)
[ 1 ] Section 14A Medical referees
Insert after section 14A (2):
(2A) Of the medical practitioners appointed as medical
referees:
| (a) | some are to be appointed from amongst persons nominated by such employer organisations as the Minister invites to make nominations, and |
| (b) | some are to be appointed from amongst persons nominated by such employee organisations as the Minister invites to make nominations, and |
| (c) | some may be appointed from amongst persons nominated by the Director-General of the Department of Health. |
(2B) The Minister can, when inviting nominations for the purposes of subsection (2A), specify the minimum number of persons required to be nominated.
[2 ] Section 14B Medical panels
Insert after section 14B (2):
(2A) As far as reasonably practicable, one of the medical referees constituting a medical panel must be a medical referee appointed under section 14A (2A) (a) and one must be a medical referee appointed under section 14A (2A) (b).
| (2B) | Of the medical referees constituting a medical panel, no more than one is to be a medical referee appointed under section 14A (2A) (a) and no more than one is to be a medical referee appointed under section 14A (2A) (b). |
WorkCover Legislation Amendment Act 1995 No 89
| Schedule 3 | Amendment of Compensation Court Act 1984 | |
| ||
| (2D) When a medical panel is constituted by 2 medical referees, their decision is the decision of the panel. When a medical panel is constituted by more than 2 medical referees, the decision of a majority of them is the decision of the panel. | ||
| (2E) When a medical panel is constituted by 2 medical referees and they cannot agree as to their decision, the medical panel is to be reconstituted as a panel of 3 medical referees (whether or not including either or both of the medical referees from the original panel). |
[3 ] Section 16 References to commissioner
Omit the section.
[4] Section 18 Costs
Omit the section. Insert instead:
18 Costs
Section 116 (Costs) of the Workers Compensation Act 1987 applies to and in respect of any proceedings in the Court, not just proceedings under that Act.
[5] Section 19 Interest before order for payment
Omit the section.
[6 ] Section 19A Interest after order for payment Omit the section.
WorkCover Legislation Amendment Act 1995 No 89
| Amendment of Compensation Court Act 1984 | Schedule 3 |
[ 7 ] Section 22 Arrangement of business of the Court
Insert before section 22 (3) (a):
(a1) the need for proceedings to be disposed of efficiently by the Court, including the need to make full use of the commissioners, and
[8] Section 25
insert after section 24:
25 Special provision for evidence of exposure to noise
Historical evidence and general medical or other expert evidence concerning exposure of workers to noise in employment with particular employers or in employment of a particular class, which has been admitted in any proceedings before the Court, may, with the leave of the
Court, be received as evidence in any other proceedings
before the Court, whether or not the proceedings are
between the same parties.
[9 ] Section 25A Applications to be heard together
Omit the section.
[ 1 0 ] Section 26 Commissioners' jurisdiction
Omit section 26 (3).
[ 1 1 ] Section 27 Procedure before commissioners
Omit section 27 (3). Insert instead:
| (3) | Proceedings before a commissioner are to be recorded unless the commissioner otherwise orders or the rules otherwise provide. |
| (4) | The decision of a commissioner in any proceedings is, subject to the rules, to include details of the findings made by the commissioner on material questions of fact and of the commissioner's reasons for the decision. |
WorkCover Legislation Amendment Act 1995 No 89
| Schedule 3 | Amendment of Compensation Court Act 1984 |
[ 1 2 ] Part 4, Division 1 , heading
| Omit the heading. Insert instead “Division 1 Appeals from Judges”. |
[ 13 ] Sections 32-34
Omit the sections. Insert instead:
32 Appeal to Court of Appeal from Judge on question of
law
| (1) | If a party to any proceedings before the Court constituted by a Judge is aggrieved by an award of the Judge in point of law or on a question as to the admission or rejection of evidence, that party may appeal to the Court of Appeal. |
| (2) | The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the Compensation Court for determination by the Compensation Court in accordance with any decision of the Court of Appeal and may make such other order in relation to the appeal as the Court of Appeal sees fit. |
| (3) | A decision of the Court of Appeal on an appeal under this section is binding on the Compensation Court and on all the parties to the proceedings in respect of which the appeal was made. |
[14] Part 4, Division 1A
Insert after section 34:
| ||
| 34A Appeal to Judge from commissioner |
| (1) | If a party to any proceedings before a commissioner is aggrieved by an award of the commissioner in point of law or on a question as to the admission or rejection of evidence, that party may appeal to a Judge. |
WorkCover Legislation Amendment Act 1995 No 89
| Amendment of Compensation Court Act 1984 | Schedule 3 |
| (2) | If, in any proceedings before a commissioner, the commissioner has misused a statutory discretion, any party to those proceedings may appeal to a Judge but such an appeal cannot be made without the leave of a Judge. | |||
| (3) | Regulations may be made for or with respect to prescribing further grounds on which appeals may be made to a Judge with respect to proceedings before a commissioner. | |||
| (4) | There is to be no re-hearing or new hearing of proceedings the subject of appeal under this section. However, the Judge hearing the appeal may, by leave, receive further evidence if the Judge considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. | |||
| (5) | A Judge may, on the hearing of any appeal under this section: | |||
| ||||
| (6 ) | In this section, award includes interim award, order, decision, determination, ruling and direction. |
34B References of questions of law to a Judge
| ( 1) | A commissioner may: | |
| ||
| (b) on application by the parties, or any one of them, refer for the opinion of a Judge any question arising in proceedings before the commissioner that is a question of law or a question that the commissioner thinks is of sufficient importance to warrant consideration by a Judge. |
WorkCover Legislation Amendment Act 1995 No 89
| Schedule 3 | Amendment of Compensation Court Act 1984 | |||
|
| (a) | if the commissioner has not made an award in the matter in which the question arose, the commissioner may make an award not inconsistent with the opinion of the Judge, or |
| (b) | if the commissioner has made an award in the matter in which the question arose, the commissioner is to vary that award in such a way as will make it consistent with the opinion of the Judge. |
Part 4, Division 2, heading
Omit “Commissioners or”.
Section 36 Review of decisions
Omit “commissioner o r” from section 36 (1).
Section 37 References to the Court
Omit “commissioner or a” from section 37 (1).
Section 37 (1)
Omit “commissioner's or”
Section 37
Omit “commissioner or” wherever occurring.
WorkCover Legislation Amendment Act 1995 No 89
| Amendment of Compensation Court Act 1984 | Schedule 3 |
[20] Section 38 Stay of proceedings
Insert “to the extent that the payments are in respect of a period after the award is made” after “under the award” in section 38 (3).
[21 ] Section 38F
Omit the section. Insert instead:
38F Costs of mediation and neutral evaluation
The cost of providing mediation and neutral evaluation for the purposes of this Part (including the remuneration of mediators and neutral evaluators and the cost of administrative support) is a cost of operation of the Compensation Court and accordingly is payable under section l9 (2) (c) of the WorkCover Administration Act 1989.
[22] Section 39 Costs of operation of the Court
| Omit “Workers Compensation and Rehabilitation Authority”. Insert instead “WorkCover Authority”. |
[23] Section 41 Liaison with WorkCover Authority
| Omit “Workers Compensation and Rehabilitation Authority” wherever occurring. Insert instead “WorkCover Authority”. |
[24] Schedule 2 Commissioners
Omit clause 3. Insert instead:
3 Full-time or part-time Commissioners
| (1) | A Commissioner may be appointed as either a full-time or part-time Commissioner. |
| (2) | A full-time Commissioner is required to devote the whole of his or her time to the duties of the office of Commissioner. |
WorkCover Legislation Amendment Act 1995 No 89
| Schedule 3 | Amendment of Compensation Court Act 1984 |
Schedule 3 Functions of the Court that may b e exercised by
Commissioners
Omit paragraph (c).
Schedule 3, paragraph (g)
Omit “‘(excluding compensation for pain and suffering under section 67 of that Act)”.
Schedule 3, paragraph (h)
Omit “(including compensation for pain and suffering under section 67 of that Act)”.
Schedule 4 Savings and transitional provisions
Insert at the end of clause 1 (1):
WorkCover Legislation Amendment Act 1995
Schedule 4, Part 4
Insert after Part 3:
| Part 4 | WorkCover Legislation Amendment Act 1995 |
7 Application of amendments to pending proceedings
| (1) | An amendment made to this Act by the WorkCover Legislation Amendment Act 1995 (the 1985 Act) does not apply to proceedings in the Court commenced before the Commencement of the amendment (except as provided by subclause (2)) but applies to proceedings commenced after the commencement of the amendment whenever the cause of action arose. |
P ag e1 18
WorkCover Legislation Amendment Act 1995 No 89
| Amendment of Compensation Court Act 1984 | Schedule 3 |
| (2) | An amendment made by the 1995 Act to Division 1 (Appeals from Judges) of Part 4 extends to proceedings commenced before the commencement of the amendment but only if no hearing in the proceedings has commenced to be heard before the commencement of the amendment. |
8 Application of medical referee/panel amendments
An amendment made by the WorkCover Legislation Amendment Act 1995 to section 14A or 14B does not apply to a medical panel constituted for any purpose before the commencement of the amendment.
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WorkCover Legislation Amendment Act 1995 No 89
| Schedule 4 | Amendment of Construction Safety Act 1912 |
| Schedule 4 | Amendment of Construction Safety |
| Act 1 9 1 2 |
(Section 6 )
[ 1 ] Section 17A Riggers, divers, powdermen and certain other tradespersons
Insert after section 17A (2) (b):
| (c) | Despite paragraph (a), the Authority may refuse to issue a certificate of competency as a powderman to a person against whom an apprehended violence order (whether or not the order is an interim order) is in force under Part 15A of the Crimes Act 1900. |
[2] Section 17A (5AA)
Insert “If the Authority is satisfied that an apprehended violence order is in force under Part 15A of the Crimes Act 1900 against the holder of a powderman's certificate of competency (whether or not the person has been served with a notice under subsection (5)) the Authority may suspend the certificate of competency for any period determined by the Authority, being a period that ends on or before the end of the period during which the apprehended violence order remains in force.” at the end of the subsection.
[3 ] Section 17B Endorsement of certificates
Omit “15” from section 17B (2). Insert instead “50”.
[4] Section 18 Notice of accidents
Insert at the end of section 18 (2):
This subsection does not apply to anything on premises that are a place of work within the meaning of the Occupational Health and Safety Act 1983 (as to which see section 21B of that Act).
WorkCover Legislation Amendment Act 1995 No 89
| Amendment of Construction Safety Act 1912 | Schedule 4 |
Section 21 Penalties and proceedings for offences
Omit “250” from section 21 (1). Insert instead “500”.
Section 21
Omit “100” from section 21 (1). Insert instead “250”.
Section 21
Omit “100" from section 21 (3). Insert instead “500”.
Section 22 Regulations
Omit “100” from section 22 (4). Insert instead “250”.
Second Schedule Savings, transitional and other provisions
Insert at the end of clause 1 (1):
WorkCover Legislation Amendment Act 1995
Second Schedule, Part 3
Insert after Part 2:
| Part 3 | Provisions consequent on enactment of the WorkCover Legislation Amendment Act 1995 |
7 Increase in penalty that may be imposed by Local Court
| (l ) | The amendment made to section 21 (3) of this Act by the WorkCover Legislation Amendment Act 1995 does not apply in respect of proceedings for an offence against this Act or the regulations that were commenced in a Local Court before the commencement of that amendment. |
| (2) | In respect of proceedings commenced on or after the commencement of that amendment, the amendment applies whether the offence was committed before or after that commencement. |
WorkCover Legislation Amendment Act 1995 No 89
| Schedule 5 | Amendment of Factories, Shops and Industries Act 1962 |
| Schedule 5 | Amendment of Factories, S hop s and Industries Act 1962 |
(Section 7)
Section 45 Means of escape from and extinguishing fires
Omit “250” from section 45 (2). Insert instead “500”.
Section 45 (2)
Omit “100”. Insert instead “250”
Section 45 (2)
Omit “2.5”. Insert instead “ 5 ” .
Section 144 Regulations
Omit “100” from section 144 (1) (e) (i). Insert instead “250”.
Section 144 (1) (e) (i)
Omit ‘‘25”. Insert instead “50”.
Section 145 Proceedings
Omit “100” from section 145 (3A). Insert instead “500”.
Section 149 Penalties
Omit “250” from section 147 (1) (a). Insert instead “500”.
Section 147 (1) (a)
Omit “100”. Insert instead “250”.
WorkCover Legislation Amendment Act 1995 No 89
| Amendment of Factories, Shops and Industries Act 1962 | Schedule 5 |
Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
WorkCover Legislation Amendment Act 1995
Schedule 2, Part 3
Insert after Part 2:
| Part 3 | Provisions consequent on enactment of the WorkCover Legislation Amendment Act 1995 |
7 Increase in penalty that may be imposed by Local Court
| (1) | The amendment made to section 145 (3A) of this Act by the WorkCover Legislation Amendment Act 1995 does not apply in respect of proceedings for an offence against this Act or the regulations that were commenced in a Local Court before the commencement of that amendment. |
| (2) | In respect of proceedings commenced on or after the commencement of that amendment, the amendment applies whether the offence was committed before or after that commencement. |
WorkCover Legislation Amendment Act 1995 No 89
| Schedule 6 | Amendment of Dangerous Goods Act 1975 |
| Schedule 6 | Amendment of | Dangerous G oods |
| Act 1975 |
(Section 8)
Section 9 Keeping generally
Omit “ 5 0 ” from section 9 (2) (a). Insert instead “250
Section 9 (2) (b)
Omit “250”. Insert instead “ 5 0 0 ” .
Section 9 (2)
Omit “ 5 0 ” where secondly occurring.
Insert instead “100”.
Section 11 Offence of unlicensed conveyance
Omit “250” from section 11 (1). Insert instead “500”.
Section 11 (1)
Omit “ 3 0 ” . Insert instead “250”.
Section 12 Conveyance generally
Omit “250” from section 12 wherever occurring.
Insert instead “500”
Section 12
Omit “50” from section 12 wherever occurring.
Insert instead “250”.
WorkCover Legislation Amendment Act 1995 No 89
| Amendment of Dangerous Goods Act 1975 | Schedule 6 |
Section 13 Offence of sale in public place
Omit “250”. Insert instead “500”.
Section 13
Omit “50”. Insert instead “250”.
Section 14 Negligent or careless use etc
Omit “50”. Insert instead “250”.
Section 20 Offence of unlicensed manufacture
Omit “250” from section 20 (1). Insert instead “500”.
Section 20
Omit “50” wherever occurring. Insert instead “250”.
Section 24 Supply to minors
Omit “10” from section 24 (1). Insert instead “50”.
Section 26 Possession of explosives
Omit “50” from section 26 (1). Insert instead “250”.
Section 26 (1)
Omit “250”. Insert instead “ 5 0 0 ” .
Section 32 Obstruction of inspectors etc
Omit “50” from section 32 (1). Insert instead “250”.
WorkCover Legislation Amendment Act 1995 No 89
| Schedule 6 | Amendment of Dangerous Goods Act 1975 |
[17] Section 3 3 Proceedings for offences
Omit “100” from section 33 (IA ). Insert instead “500”.
[ 1 8 ] Section 41 Regulations
Omit “100” from section 41 (3) (g). Insert instead ‘‘250”
Section 41 (3 ) (g)
Omit “5”. Insert instead “10”.
Section 41 (3A)
Omit “100”. Insert instead “ 25 0 ” .
Schedule 3 Transitional and other provisions
Insert at the end of clause 1 (l):
WorkCover Legislation Amendment Act 1995
Schedule 3 , Part 3
Insert after Part 2:
| Part 3 | Provisions consequent on enactment of the WorkCover Legislation Amendment Act 1995 |
10 Increase in penalty that may be imposed by Local Court
| (1) | The amendment made to section 33 (1A) of this Act by the WorkCover Legislation Amendment Act 1995 does |
WorkCover Legislation Amendment Act 1995 No 89
| Amendment of Dangerous Goods Act 1975 | Schedule 6 |
not apply in respect of proceedings for an offence against this Act or the regulations that were commenced in a Local Court before the commencement of that amendment.
| (2) | In respect of proceedings commenced on or after the commencement of that amendment, the amendment applies whether the offence was committed before or after that commencement. |
WorkCover Legislation Amendment Act 1995 No 89
| Schedule 7 | Amendment of Workers' Compensation (Dust Diseases) Act 1942 |
| Schedule 7 | Amendment of Workers' Compensation (Dust Diseases) |
| Act 1942 |
(Section 9)
[ 1 ] The whole Act
| Omit “the Schedule” wherever occurring. Insert instead “Schedule 1”. |
[2 ] Section 3 Definitions
Omit the definitions of Broken Hill mine and Broken Hill mine-owner from section 3 (1).
[3] Section 3 (1), definition of “worker”
Omit the definition. Insert instead:
worker does not include a worker in or about a mine to
which the Coal Mines Regulation Act 1982 applies.
[4] Section 3 (2)
Omit the subsection.
[5 ] Section 6 Constitution of Fund
Insert after section 6 (1) (a):
| (a1) | all balances, investments and moneys of‘ which the fund established under the scheme of the Workmen's Compensation (Broken Hill) Act 1920 consisted immediately before the repeal of that Act, and all moneys that, immediately before that repeal, were owing to that fund and are paid after that repeal, |
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WorkCover Legislation Amendment Act 1995 No 89
| Amendment of Workers' Compensation (Dust Diseases) Act 1942 | Schedule 7 |
Section 6 (9)
Omit “by a Broken Hill mine owner, or”.
Section 10 Regulations
Omit “Broken Hill mines or” from section 10 (2) (b2).
Sections 12 and 13:
Insert after section 11:
12 Repeal of Workmen's Compensation (Broken Hill) Act
1920 No 36
The Workmen's Compensation (Broken Hill) Act 1920 is repealed.
13 Savings, transitional and other provisions
Schedule 2 has effect.
Schedule 1
Omit the heading to the Schedule.
Insert instead “Schedule 1 Dust diseases”.
Schedule 2
Insert after Schedule 1:
| Schedule 2 | Savings, transitional and other provisions |
(Section 13)
| Part 1 | Preliminary |
1 Regulations
|
WorkCover Legislation Amendment Act 1995
WorkCover Legislation Amendment Act 1995 No 89
| Schedule 7 | Amendment of Workers' Compensation (Dust Diseases) Act 1942 | |||
|
| (a) | to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or |
| (b) | to impose liabilities on any person (other than the State or an authority of the State), in respect of anything done or omitted to be done before the date of its publication. |
| Part 2 | Provisions consequent on enactment of WorkCover Legislation Amendment Act 1995 |
2 Definitions
In this Part:
Broken Hill Compensation Fund means the fund established under the scheme of the Broken Hill Act.
Broken Hill Act means the Workmen's Compensation (Broken Hill) Act 1920, as in force immediately before its repeal.
3 Transfer of balance of Broken Hill Compensation Fund
to Dust Diseases Fund
The balance of and any investments to the credit of the Broken Hill Compensation Fund immediately before the repeal of the Broken Hill Act are, on that repeal, transferred to the Fund established under this Act and any liability of the Broken Hill Compensation Fund becomes, on and from that repeal, a liability of the Fund established under this Act.
WorkCover Legislation Amendment Act 1995 No 89
| Amendment of Workers' Compensation (Dust Diseases) Act 1942 | Schedule 7 |
4 Continuation of entitlements under Broken Hill Act
| (1) | On the repeal of the Broken Hill Act the scheme of compensation under that Act ceases to have effect. |
| (2) | Any person who, immediately before that repeal, was in receipt of compensation under that Act, is entitled, on and from the repeal, to receive compensation from the Fund constituted under this Act in accordance with this Act. |
5 Applications and appeals under Broken Hill Act
| (1) | Any application for an award of compensation under the Broken Hill Act that is pending immediately before the repeal of that Act is to be dealt with, on that repeal, as if it were an application for compensation under this Act. |
| (2) | An appeal to the Industrial Court from an order, determination or award of compensation of the joint committee under the Broken Hill Act that is pending immediately before the repeal of that Act is to be dealt with, on that repeal, as if it were an appeal under this Act from an order, determination or award of compensation of the board. |
6 Functions exercised by joint committee under Broken
Hill Act
Anything done by the joint committee under the Broken Hill Act that had any force or effect immediately before the repeal of that Act is taken, on and from that repeal, to have been done by the board under this Act.
7 Functions exercised by medical authority under Broken
Hill Act
Anything done by the medical authority under the Broken Hill Act that had any force or effect immediately before the repeal of that Act is taken, on and from that repeal, to have been done by the medical authority under this Act.
WorkCover Legislation Amendment Act 1995 No 89
| Schedule 8 | Amendment of other Acts |
| Schedule 8 | Amendment of other Acts |
(Section 10)
| 8.1 | Defamation Act 1974 N o 18 |
| [1 ] | Section 19BB Conciliation officers under Workers Compensation Act 1987 |
| Insert at the end of section 17BB: |
and
| (c) | for the publication by any such conciliation officer of a conciliation certificate under section 98B of the Workers Compensation Act 1987. |
[ 2 ] Schedule 2 Proceedings of public concern and official and public documents and records
Insert “or that consists of a conciliation certificate under section 98D of that Act” after “1987” in clause 3 (6).
| 8.2 | Justices Act 1902 N o 27 |
| Section 100I Interpretation | |
| Insert at the end of paragraph (a) of the definition of penalty notice in section 100I: |
Workers Compensation Act 1987, section 278A;
WorkCover Legislation Amendment Act 1995 No 89
| Amendment of other Acts | Schedule 8 |
| 8.3 | Public Finance and Audit Act 1983 No 152 |
| Schedule 2 Statutory bodies | |
| Omit “Joint Committee established under paragraph 30 of the Schedule to the Workmen's. Compensation (Broken Hill) Act 1920.” | |
| 8.4 | Statutory and Other Offices Remuneration Act 1975 |
| (1976 No 4) | |
| Schedule 2 Public offices | |
| Omit from Part 1: |
Senior Workers Compensation Commissioner.
Workers Compensation Commissioner, other than the Senior
Workers Compensation Commissioner.
Insert instead:
Full-time commissioner under the Compensation Court Act 1984
Part-time commissioner under the Compensation Court Act
1984.
| 8 .5 | W orkcover Administration Act 1989 N o 120 |
| Section 3 Definitions | |
| Omit paragraph (d) from the definition of workers compensation legislation in section 3 (1). |
WorkCover Legislation Amendment Act 1995 No 89
| Schedule 8 | Amendment of other Acts |
| 8.6 | Workers Compensation Legislation Amendment Act 1995 No 30 |
| Schedule 3 Amendments relating to interim payment of damages | |
| Omit the Schedule. |
[Minister's second reading speech made in
Legislative Assembly on 6 December 1995 Legislative Council on 13 December 1995]
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