Workers Compensation Amendment Act 2001 (ACT)
Workers Compensation Amendment Act 2001
2001 No 81
Contents
Page
Name of Act 2
Commencement 2
Acts amended 2
Part 1, heading 2
Section 1 3
Part 2, heading 19
New part 4.1 19
Section 7 23
Compensation limited to Territory workers
Section 7A (3) 25Section 8 25
New parts 4.3 to 4.8 26
Compensation for death or incapacity through disease
Section 9 (1) (b) 52Compensation for disease
Section 9B (1) and (2) 52Section 9B (3) and (4) 52
Sections 10 to 10F 52
New chapter 5 52
Sections 11 to 13 69
Section 15 79
Part 2A 80
Sections 16 to 17D 82
Cover notes
Section 17E (1) and (2) 87Section 18 87
Section 18F 91
Section 18G 92
New section 21AA 93
Sections 23D and 23E 93
New section 23J 95
New chapter 13 95
Sections 26S to 27B 96
Regulation-making power
Section 30 (2) and (3) 100Part 8 102
New chapter 15 102
Schedules 1 to 4 104
Workers Compensation Act—renumbering 112
Limitation Act 1985, new section 16A 113
Magistrates Court (Civil Jurisdiction) Act 1982, section 497 113
Schedule 1 Consequential amendments 114
Schedule 2 Minor amendments 126
Workers Compensation Amendment Act 2001
2001 No 81
An Act to amend the Workers’ Compensation Act 1951, to amend other Acts and for other purposes
Notified under the Legislation Act 2001 on 28 September 2001
(see Legislative Assembly for the Australian Capital Territory enacts as follows:
Name of Act
This Act is the Workers Compensation Amendment Act 2001.
Commencement
This Act (other than new section 8OA, as inserted by section 11, and schedule 2) commences on 1 July 2002.
NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act 2001, s 75).
The following provisions commence on the day this Act is notified in the Gazette:
(a)new section 8OA (Back, neck and pelvis impairments—Legislative Assembly endorsement for inclusion in sch 1), as inserted by section 11;
(b)schedule 2 (Minor amendments).
Acts amended
This Act (other than sections 35 and 36) amends the Workers’ Compensation Act 1951.
NoteThe Workers’ Compensation Act 1951 is amended in the body of this Act and in sch 1 and sch 2.
Section 35 amends the Limitation Act 1985.
Section 36 amends the Magistrates Court (Civil Jurisdiction) Act 1982.
Part 1, heading
substitute
Chapter 1Preliminary
Section 1
substitute
Name of Act
This Act is the Workers Compensation Act 1951.
Chapter 2Interpretation generally
1ADictionary
The dictionary at the end of this Act is part of this Act.
Note 1The dictionary at the end of this Act defines certain words and expressions used in this Act, and includes references (signpost definitions) to other words and expressions defined elsewhere in this Act or in other legislation.
For example, the signpost definition ‘injury—see section 2A (Meaning of injury).’ means that injury is defined in that section.
Note 2A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act 2001, s 155 and s 156 (1)).
Notes
A note included in this Act is explanatory and is not part of this Act.
NoteSee Legislation Act 2001, s 127 (1), (4) and (5) for the legal status of notes.
In this section:
note includes material enclosed in brackets in section headings.
NoteFor comparison, a number of sections of this Act contain bracketed notes in their headings drawing attention to equivalent or comparable (though not necessarily identical) provisions of other Acts. Abbreviations in the notes include the following:
· ACT WCA: Workers’ Compensation Act 1951, as in force immediately before the commencement of the Workers Compensation Amendment Act 2001, s 2.
· ACT WC Regs: Workers’ Compensation Regulations, as in force immediately before the commencement of the Workers Compensation Amendment Act 2001, s 2.
· CW WRR: Workplace Relations Regulations (Cwlth).
· NSW WIMWCA: Workplace Injury Management and Workers Compensation Act 1998 (NSW).
· NSW WCA: Workers Compensation Act 1987 (NSW).
Subsection (2), this subsection, and the material enclosed in brackets in section headings, expire 2 years after this section commences.
2AMeaning of injury (ACT WCA s 6 (1) and (1A))
For this Act:
injury means a physical or mental injury (including stress), and includes aggravation, acceleration or recurrence of a pre-existing injury.
For this section:
mental injury (including stress) does not include a mental injury (including stress) completely or mostly caused by reasonable action taken, or proposed to be taken, by or on behalf of an employer in relation to the transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of a worker or the provision of an employment benefit to a worker.
Meaning of employer (ACT WCA s 6 (1))
For this Act:
employer includes—
(a)an entity; and
(b)the legal personal representative of a dead employer; and
(c)if the services of the worker are temporarily lent or let on hire to someone else (the temporary employer) by the person (the original employer) with whom the worker has entered into a contract of service or apprenticeship—the original employer is, for this Act, taken to continue to be the employer of the worker while the worker is working for the temporary employer.
3AMeaning of totally incapacitated
For this Act, the injured worker is totally incapacitated for work if—
(a)there is no suitable paid employment reasonably available to the worker that the worker can do because of a functional impairment caused by the injury; or
(b)the worker is taken, or declared, to be totally incapacitated under section 7C (When is a worker taken to be totally incapacitated?).
Meaning of partially incapacitated
For this Act, the injured worker is partially incapacitated for work if, because of a functional impairment caused by the injury, the worker—
(a)cannot do all the work the worker could do before the injury; and
(b)is not totally incapacitated.
Chapter 3Meaning of worker
Notes about chapter 3
Note 1Working out who is a worker
The following chart is a guide for working out if a person (X) is a worker for this Act.
Note 2Payment for work
Most people who are workers under this chapter are employed or engaged under a contract with someone else. At common law, a contract cannot exist unless there is a valuable exchange between the people on both sides of the contract, by which—
· the employee (or contractor) provides his or her labour to the employer (or principal); and
· the employer (or principal), in exchange, provides payment to the employee (or contractor), including non-monetary rewards (eg payment in kind).
The exceptions under this chapter are those who are taken to be workers under s 5A (Trainees), s 5D (Religious workers), s 5E (Commercial voluntary workers) and s 5F (Public interest voluntary workers). Trainees and religious workers may or may not be paid for their labour. Voluntary workers (under s 5E and s 5F) are those that are paid only for expenses (if that).
Note 3Subcontracting and labour hire (effect of s 14)
The Act applies in a special way to subcontracting arrangements, by which—
· a worker is engaged to work for a person who is the employer of the worker (under this chapter); and
· the employer has engaged the worker to fulfil a contract the employer has with someone else (in this note, a principal) to do work for the principal’s trade or business.
Under s 14, the principal is liable to pay compensation to the worker if the worker is injured. The principal may, however, recover the compensation paid from the employer.
These situations may be complicated by the involvement of labour hirers, who may in some circumstances be taken to be the employer of workers engaged to do work for a principal (see s 5). Here are 3 illustrations of different subcontracting arrangements:
Arrangement 1 No labour hirer
A bricklayer’s labourer (the worker) is employed by a bricklayer (the employer) to assist the bricklayer to fulfil a contract between the bricklayer and a builder (the principal).
The bricklayer is the labourer’s employer.
Arrangement 2 Labour hirer as employer
A cleaner (the worker) is engaged by a labour hirer (the employer) to fulfil a contract between the labour hirer and the owner of a retail store (the principal) for the cleaning of the store. The labour hirer is taken (under s 5) to be the employer of the cleaner, because the cleaner has no contractual relationship with the owner of the store.
The labour hirer is the cleaner’s employer.
Arrangement 3 Labour hirer as employment agent
A keyboard operator (the worker) is employed by an information technology consultant (the employer) to fulfil a contract between the consultant and a government department (the principal). The consultant recruits the operator through a labour hirer acting as an employment agent.
The consultant is the operator’s employer.
Under all of these arrangements, the worker may claim compensation from either the employer or the principal (see s 14 (2) and (4)). If the principal pays compensation to the worker, the principal may claim repayment from the employer (see s 14 (3)). But in the 3rd arrangement (Labour hirer as employment agent), the worker may not claim compensation from the labour hirer, and the principal may not seek repayment of compensation from the labour hirer.
4AWho is a worker? (ACT WCA s 6 (1) (def of worker), (7),
s 6B)
For this Act (subject to this chapter):
worker means an individual who has entered into or works under a contract of service with an employer, whether the contract is express or implied, oral or written.
A reference in this Act to a worker after the date of an injury includes a reference to a former worker.
The Minister may, in writing, determine categories of workers for the following provisions:
·section 18 (b) (i) (Information for insurers before renewal)
·section 18AA (b) (i) (Information for insurers after end of policy)
·section 18AB (1) (a) (Information for insurers about reporting period)
·section 23F (1) (b) (i) (Provision of information to inspectors).
A determination is a notifiable instrument.
NoteA notifiable instrument must be notified under the Legislation Act 2001.
4BWho is not a worker? (ACT WCA s 6 (1) (def of worker), (2))
For this Act (despite anything else in this chapter), worker does not include—
(a)a public servant; or
(b)an employee within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cwlth).
For this Act (despite anything else in this chapter), worker does not include an individual who would, apart from this section, be a worker employed by an employer, if the individual is a member of the employer’s family and lives in the employer’s home.
However, subsection (2) does not apply to an individual if the employer tells the insurer who insures the employer against liability under this Act the name, nature of employment and estimated wages of the individual—
(a)when the employment begins; and
(b)whenever the insurance is renewed.
4CCasuals not employed for trade or business (ACT WCA s 6 (1) (def of worker, par (a)) and (3C))
For this Act, worker does not include an individual (the casual employee) employed by someone (the principal) on a casual basis to perform work for the principal other than work that is for (or incidental to) the principal’s trade or business unless the casual employee is taken to be a worker under any of the following provisions:
(a)subsection (2) (which deals with casual employment found through employment agencies);
(b)section 4D (Regular contractors and casuals);
(c)section 5D (Religious workers).
If the casual employee’s employment was found for the employee by a person who carries on the business of an employment agent, for this Act the casual employee is taken to be a worker employed by the employment agent.
Examples of casual employees who are not workers
1A gardener irregularly employed by the occupier of residential premises to work in the garden of the premises (unless engaged through an employment agent—see example 4).
2A babysitter irregularly employed by the parents of young children (unless engaged through an employment agent—see example 4).
Examples of casual employees who are workers
3A gardener irregularly employed by the owner of a business to work on the grounds of the premises where the employer’s business is carried on. The gardener is taken to be a worker employed to perform work incidental to the principal’s business (see s (1)).
4A babysitter irregularly employed by the parents of young children who is engaged through an employment agency. The babysitter is taken to be a worker employed by the agency rather than the parents (see s (1) (a) and
s (2)).
5A babysitter regularly and systematically employed (for example, once a week over a 6 month period) by the parents of young children. The babysitter is taken to be a worker employed by the parents under s 4D (Regular contractors and casuals)—see s (1) (b).
4DRegular contractors and casuals (CW WRR r 30BA (3))
This section applies to the engagement of an individual by a person (the principal) if—
(a)the individual has been engaged by the principal—
(i)under a contract for services to work for the principal (whether or not on a casual basis); or
(ii)on a casual basis under a contract of service to perform work for the principal other than work that is for (or incidental to) the principal’s trade or business (unless section 4C (2) applies, which deals with casual employment found through employment agencies); and
(b)the individual personally does part or all of the work; and
(c)if the principal is a corporation—the individual is not an executive officer of the corporation.
Note for par (a) (ii) Section 4C (2) provides that if a casual worker employed other than for the employer’s trade or business is engaged through an employment agent, the casual worker is a worker employed by the agent.
For this Act, the individual is taken to be a worker employed by the principal if—
(a)the engagement, under the contract or similar contracts, has been on a regular and systematic basis; or
(b)the individual has (or, apart from any injury, would have had) a reasonable expectation of the engagement continuing on a regular and systematic basis (under the contract or similar contracts), even if the engagement has not been on a regular or systematic basis.
To work out whether an engagement has been on a regular and systematic basis, or whether there is (or would have been) a reasonable expectation of an engagement continuing on that basis, relevant matters include (but are not limited to) the following:
(a)the terms of all relevant contracts;
(b)the working relationship between the principal and the individual and all associated circumstances;
(c)the period of the engagement, or the periods of the engagement if it has not been continuous;
(d)the frequency of work under the contract or similar contracts;
(e)the number of hours worked under the contract or similar contracts;
(f)the type of work;
(g)normal arrangements for someone engaged to perform that type of work.
Examples of individuals who are workers
1Payment by commission
A sales representative engaged under a 3 month contract for payment by commission that forms part of a regular and systematic pattern of similar contracts to work for a real estate agency, canvasser or retailer, even if there is no express or implied guarantee of continuing work.
2IT consultant—engagement under indefinite retainer
An information technology consultant engaged on a retainer under which it is agreed that the consultant will be regularly and systematically available, on call by the principal, to offer advice or attend at short notice, even if the consultant was only recently engaged.
3Owner-driver of a truck—regular engagement
An owner-driver of a truck engaged by a local ACT carrier for an overnight trip (leaving regularly on the same day each week), even if any (or all) of the following apply:
· there is occasionally no work for the driver;
· the driver also works (or is free to work) for other carriers;
· the driver was only recently engaged by the carrier.
4Taxidriver (non-owner)—regular engagement
A taxidriver engaged by the owner of the taxi under a contract (or contracts) for services for a certain number of shifts each week on a regular basis even if any (or all) of the following apply:
· the driver works (or is free to work) different shifts from week to week;
· the driver also works (or is free to work) for other taxi owners;
· the driver was only recently engaged by the taxi owner.
5Building contractor—exclusive engagement
A bricklayer engaged under contracts for services by a particular builder for some years, who has worked for almost no-one else over that time, even if there is no express or implied guarantee of continuing work.
6Regular casual worker
A gardener engaged by a householder (under contracts of service or for services) on a regular and systematic basis over a number of years to work in the grounds of the house. The gardener’s engagement may be found to be ‘regular and systematic’ even if any (or all) of the following apply:
· there is no express or implied guarantee of continuing work;
· the gardener also works (or is free to work) for other households;
· there have been occasional periods during which the gardener has not worked for the householder.
Examples of individuals who are not workers
7Payment by commission—no guarantee of future work
A sales representative engaged under a 3 month contract for services with a real estate agency, canvasser or retailer, and who is paid by commission, if—
· the contract does not form part of a regular and systematic pattern of similar contracts; and
· there is no express or implied guarantee that any further similar contract will be offered, whether in a document or by inference from the working relationship between the principal and the individual.
8IT consultant—occasional engagement
An information technology consultant who is occasionally engaged by a small business for a week or more at a time under a contract for services, but not on a regular basis.
9Owner-driver of a truck—irregular engagement
An owner-driver of a truck engaged under contracts for services with a furniture retailer whenever available, who has made deliveries every day of the week at times (for example, just before Christmas), but at other times may go for months without working for the retailer.
10Taxidriver (non-owner)—irregular engagement
A taxi driver engaged by the owner of the taxi occasionally, but not regularly or systematically, under contracts for services to fill in for absent drivers.
11Building contractor—irregular engagement
A bricklayer engaged under contracts for services by a particular builder several times a year, but who is not regularly engaged by the builder.
12Irregular casual worker
A tree surgeon engaged by a householder on an irregular basis (under contracts of service or for services) to prune the trees around a house. The engagement may be found not to be ‘regular and systematic’ even if the tree surgeon has been occasionally engaged by the householder for many years. (However, if the tree surgeon is engaged through an employment agent, the tree surgeon is a worker employed by the agent (see s 4C (2).)
Labour hire arrangements
For this Act, an individual is taken to be a worker employed by a person (the labour hirer) if—
(a)the individual has been engaged by the labour hirer under a contract for services to work for someone other than the labour hirer; and
(b)there is no contract to perform the work between the individual and the person for whom the work is to be performed; and
(c)the individual personally does part or all of the work; and
(d)if the labour hirer is a corporation—the individual is not an executive officer of the corporation.
Note 1This section does not make an employment agent the employer of those for whom the agency finds work if the workers are engaged directly by the person for whom the work is to be performed. It makes the labour hirer the employer only if there is no contractual relationship between the worker and the person for whom the work is to be performed (see par (b)).
Note 2 Under s 14 (Subcontracting), the person for whom the work is to be performed may be liable as ‘principal’ to pay compensation to the worker, as well as the labour hirer under this section. The ‘principal’ may then recover compensation from the labour hirer (see s 14 (3)). See also note 3 at the beginning of this part.
5ATrainees
For this Act, an individual is taken to be a worker employed by a person (the principal) if—
(a)the individual is engaged under an arrangement (whether or not under contract) by which training or on-the-job experience is provided to the individual; and
(b)the training or experience is in relation to work that is for (or incidental to) the principal’s trade or business; and
(c)the individual performs work that is for (or incidental to) the principal’s trade or business while so engaged; and
(d)if the principal is a corporation—the individual is not an executive officer of the corporation.
An individual may be taken to be a worker under subsection (1) even if the individual receives no payment for the engagement.
5BOutworkers (ACT WCA s 6 (3))
This section applies to an individual (the outworker) who is engaged by a person (the principal) under a contract for services to treat or manufacture articles or materials, or to perform other services—
(a)in the outworker’s own home; or
(b)on other premises not under the control or management of the principal.
To remove doubt, the outworker is taken to be a worker employed by the principal if—
(a)the outworker is taken to be a worker employed by the principal under section 4D (Regular contractors and casuals); or
(b)the outworker is taken to be a worker employed by the principal under section 5 (Labour hire arrangements).
Example of an outworker
A keyboard operator engaged under a contract for services by an information technology firm to undertake data conversion for the firm (or for another firm) in the operator’s home.
5CTimber contractors (ACT WCA s 6 (3A), (3B))
This section applies to an individual (the timber contractor) who is engaged by a person (the principal) under a contract for services to do any of the following work:
(a)logging (including, for example, felling, crosscutting, snigging, loading, carting, bundling and debarking);
(b)felling or cutting trees for firewood;
(c)delivering timber or firewood;
(d)clearing timber, cutting scrub, preparing land for tree planting, planting trees, pruning trees or coppice cleaning.
The timber contractor is taken to be a worker employed by the principal if—
(a)the work is for (or incidental to) the principal’s trade or business; and
(b)the timber contractor personally does part or all of the work; and
(c)if the principal is a corporation—the timber contractor is not an executive officer of the corporation.
This section applies whether the work is to be performed by the timber contractor—
(a)for the principal; or
(b)for someone (other than the principal) with whom the timber contractor has no contract to perform the work.
5DReligious workers (ACT WCA s 6A)
The Minister may make a declaration, in writing, for this section in accordance with a request by—
(a)a religious organisation; or
(b)a person acting on behalf of a religious organisation.
For this Act—
(a)an individual included in a class of individuals declared by the Minister is taken to be a worker employed by the person stated in the declaration to be the employer of individuals in that class; and
(b)the individual’s employment is taken to be as stated in the declaration for individuals in the class.
A declaration is a notifiable instrument.
NoteA notifiable instrument must be notified under the Legislation Act 2001.
5ECommercial voluntary workers
This section applies if individuals (commercial volunteers) are engaged under an arrangement by which the commercial volunteers—
(a)perform work that is for (or incidental to) the trade or business of someone else (the principal); and
(b)receive no payment for the work (apart from any payment for expenses).
A commercial volunteer is taken to be a worker employed by the principal, unless the principal is exempt from the application of this subsection in relation to the volunteer under a certificate given under subsection (3).
On application by the principal, the Minister may give the principal a certificate (a volunteer exemption certificate) exempting the principal from the application of subsection (2) in relation to the commercial volunteers mentioned in the certificate if the Minister considers it appropriate, having regard to the interests of the principal and the commercial volunteers mentioned.
A volunteer exemption certificate must state—
(a)which commercial volunteers (or class of commercial volunteers) it applies to; and
(b)the work it applies to; and
(c)the period, or the event, it applies to.
A volunteer exemption certificate is a notifiable instrument.
NoteA notifiable instrument must be notified under the Legislation Act 2001.
5FPublic interest voluntary workers
The Minister may make a declaration for this section in relation to work (public interest voluntary work) undertaken by volunteers for a stated entity that the Minister considers necessary or desirable in the public interest.
For this Act, an individual is taken to be a worker employed by the entity stated in the declaration, or a person (the principal) named in the declaration on behalf of the entity, if the individual—
(a)performs public interest voluntary work for the entity or the principal; and
(b)receives no payment for the work (apart from any payment for expenses).
A declaration under this section is a disallowable instrument.
NoteA disallowable instrument must be notified and presented to the Legislative Assembly, under the Legislation Act 2001.
Part 2, heading
substitute
Chapter 4Entitlement to compensation
New part 4.1
insert
Part 4.1Important concepts
5GMeaning of cpi indexed and awe indexed
In this chapter:
awe indexed, for an amount, means the amount as adjusted in line with any adjustment in the AWE after the commencement of the provision in which the amount appears.
CPI means the All Groups Consumer Price Index (Canberra) issued by the ABS.
NoteIn June 2001, this was series 6401.0.
cpi indexed, for an amount, means the amount as adjusted in line with any adjustment in the CPI since the commencement of the provision in which the amount appears.
Note AWE and ABS are defined in the dict.
However, if an amount to be awe indexed or cpi indexed would, if adjusted in line with the adjustment (the negative adjustment) to the AWE or CPI, become smaller, the amount is not reduced in line with the negative adjustment.
An amount that, in accordance with subsection (2), is not reduced may be increased in line with an adjustment in the AWE or CPI that would increase the amount only to the extent that the increase, or part of the increase, is not one that would cancel out the effect of the negative adjustment.
Subsection (3) does not apply to a negative adjustment once the effect of the negative adjustment has been offset against an increase in line with an adjustment in the AWE or CPI.
Example of adjustments
An amount in a section is $100 cpi indexed.
There is a 20% increase in the CPI after the section commences. The amount in the section becomes $120 (100 + 20%).
There is then a 10% drop in the CPI. The amount does not change from $120 (although if it had changed it would be $108).
There is a 20% increase in the CPI. The 20% increase is not to the $120, but to the $108. $108 + 20% = $129.60. So the $120 becomes $129.60. This is the amount ($120) increased by so much of the 20% increase that did not cancel out the effect of the adjustment down to $108.
5HWorking out average pre-incapacity weekly earnings for non-contractor (SA WRC s 4)
In working out average pre-incapacity weekly earnings for a worker who is not a contractor—
(a)if the worker was, immediately before the injury, employed by 2 or more employers—the worker’s earnings from all employment must be taken into account; and
(b)the actual weekly earnings of the worker may be taken into account over—
(i)a period of 1 year before the injury; or
(ii)if the worker has not been employed for 1 year—the period of employment.
However, if it is not possible to work out fair average pre-incapacity weekly earnings for the worker under subsection (1) because the worker has only been employed for a short time, because of the terms of the worker’s employment or for some other reason, the worker’s average pre-incapacity weekly earnings may be worked out by reference to the average weekly amount being earned by—
(a)others in the same employment who perform similar work at the same grade as the worker; or
(b)if there is no-one mentioned in paragraph (a) in the same employment—others in the same class of employment as the worker, who perform similar work at the same grade as the worker.
5IWorking out average pre-incapacity weekly earnings for contractor (SA WRC s 4)
In working out average pre-incapacity weekly earnings for a worker who is a contractor, the worker’s average pre-incapacity weekly earnings are to be worked out—
(a)as if the worker were an employee; and
(b)if there is an award or industrial agreement applying to the class and grade of work in which the worker was engaged—by reference to the award or industrial agreement.
5JWorking out average pre-incapacity weekly hours for non-contractor
In working out average pre-incapacity weekly hours for a worker who is not a contractor—
(a)if the worker was, immediately before the injury, employed by 2 or more employers—the worker’s work hours from all employment must be taken into account; and
(b)the actual weekly work hours of the worker over a period of up to 1 year before the injury may be taken into account.
However, if it is not possible to work out fair average pre-incapacity weekly hours for the worker under subsection (1) because the worker has only been employed for a short time, because of the terms of the worker’s employment or for some other reason, the worker’s average pre-incapacity weekly hours may be worked out by reference to the average weekly hours being worked by—
(a)others in the same employment who perform similar work at the same grade as the worker; or
(b)if there is no-one mentioned in paragraph (a) in the same employment—others in the same class of employment as the worker, who perform similar work at the same grade as the worker.
5KWorking out average pre-incapacity weekly hours for contractor
In working out average pre-incapacity weekly hours for a worker who is a contractor, the worker’s average pre-incapacity weekly hours are to be worked out as if the worker were an employee.
5LOvertime—hours and wages
This section applies to a component of the worker’s earnings or hours attributable to overtime.
The overtime is to be taken into account in working out average pre-incapacity weekly earnings or average pre-incapacity weekly hours only if—
(a)the worker worked overtime in accordance with a regular and established pattern; and
(b)the pattern was substantially uniform as to the number of hours of overtime worked; and
(c)the worker would have continued to work overtime in accordance with the established pattern if the worker had not been injured.
5MGradual onset of incapacity
This section applies if, because of the gradual onset of a worker’s injury, it appears that the level of the worker’s average pre-incapacity weekly earnings, or average pre-incapacity weekly hours, have been affected.
The worker’s average pre-incapacity weekly earnings, or average pre-incapacity weekly hours, must be set at an amount that fairly represents the weekly amount that the worker would have been earning or working if the level had not been affected.
Section 7
substitute
Part 4.2Compensation for personal injury
6CGeneral entitlement to compensation for personal injury (ACT WCA s 7 (1))
An employer is liable to pay compensation under this Act if a worker of the employer suffers personal injury arising out of, or in the course of, the worker’s employment.
However, if the injury is caused by a disease, the injury is taken to have arisen out of, or in the course of, the worker’s employment only if the employment substantially contributes to the injury.
Also, an injury suffered by a worker partly or completely because the worker had any of the following pre-existing conditions is taken to have arisen out of, or in the course of, the worker’s employment only if the employment substantially contributes to the injury:
(a)diseased heart valve;
(b)coronary artery disease;
(c)aortic aneurism;
(d)cerebral aneurism.
Further, this section is subject to the following provisions:
(a)section 7A (Compensation limited to Territory workers);
(b)section 7B (Injury outside Australia);
(c)part 4.8 (Exceptions to entitlements to compensation);
(d)in relation to the entitlement to weekly compensation—
(i)section 8A (What if the worker is dead?);
(ii)section 10ZI (Compliance by workers).
6DAmounts of compensation under Act cumulative (ACT WCA s 7 (5))
An amount of compensation payable under a provision of this Act in relation to an injury is, unless otherwise expressly stated, in addition to any amount of compensation paid or payable under any other provision of this Act.
6EPayments to people with legal disabilities
If compensation under this Act is payable to someone with a legal disability, the Magistrates Court may make any order about the payment of the compensation that it considers appropriate to protect the person or the person’s interests.
In this section:
person with a mental disability means a person who is not legally competent to conduct the person’s legal affairs because of a mental disability whether or not a guardian has not been appointed for the person under the Guardianship and Management of Property Act 1991.
someone with a legal disability means someone who is—
(a)a child; or
(b)a person with a mental disability.
Compensation limited to Territory workers
Section 7A (3)substitute
A worker is taken to be a worker of a particular Territory or State (the home jurisdiction) if the worker carries out the work of the worker’s employer outside the home jurisdiction (whether within or outside Australia) only if—
(a)the worker usually carries out the work of the worker’s employer in the home jurisdiction; and
(b)the worker carries out the work elsewhere because of an arrangement (that is part of the worker’s employment) for the worker to carry out the work of the employment outside the home jurisdiction for a period that may reasonably be thought likely to be less than 6 continuous months in any 12 month period.
Section 8
substitute
Journey claims (NSW WCA s 10)
A personal injury received by a worker on an employment-related journey is, for this Act, an injury arising out of, or in the course of, the worker’s employment.
NoteCompensation may be payable for an injury arising out of, or in the course of, employment under s 6C (Compensation for personal injury).
The following are employment-related journeys for the worker:
(a)a journey between the worker’s home and workplace;
(b)a journey between the worker’s home and an educational institution that the worker is attending for an employment-related purpose;
(c)a journey between the worker’s home or workplace and another place if the purpose of the journey is to obtain 1 or more of the following in relation to a previous injury for which the worker is entitled to compensation under this Act:
(i)a medical certificate;
(ii)medical advice, attention or treatment;
(iii)compensation.
However, subsection (1) applies to an injury received during or after a non employment-related interruption of, or deviation from, an otherwise employment-related journey only if the risk of injury was not materially increased because of the interruption or deviation.
For this section—
(a)an employment-related journey to the worker’s home is taken to end at the boundary of the premises where the worker’s home is located; and
(b)an employment-related journey from the worker’s home is taken to begin at the boundary of the premises where the worker’s home is located.
For this section:
home, for a worker, means the place where the worker usually lives.
workplace, for a worker, means the worker’s place of employment.
New parts 4.3 to 4.8
insert
Part 4.3Weekly compensation
8AWhat if the worker is dead?
A worker is not entitled to weekly compensation if the worker is dead.
However, this section does not affect an entitlement to weekly compensation that accrued before the worker’s death.
8BWhen do weekly compensation payments begin?
If the worker is entitled to compensation for a compensable injury—
(a)the payment of weekly compensation must begin when the worker gives notice of the injury to the employer; and
(b)the worker is entitled to weekly compensation from the date of the injury.
8CTotally incapacitated workers
This section applies if a worker is totally incapacitated because of a compensable injury.
For 26 weeks after the incapacity date, the worker is entitled to receive weekly compensation equal to the worker’s average pre-incapacity weekly earnings.
Note Incapacity date is defined in the dict.
After the 26 weeks, the worker is entitled to receive weekly compensation equal to—
(a)if 100% of the worker’s average pre-incapacity weekly earnings is less than the pre-incapacity floor for the worker—100% of the worker’s average pre-incapacity weekly earnings; or
(b)if 100% of the worker’s average pre-incapacity weekly earnings is more, but 65% of those earnings is less, than the pre-incapacity floor for the worker—the statutory floor; or
NoteStatutory floor is defined in the dict.
(c)if 65% of the worker’s average pre-incapacity weekly earnings is more than the pre-incapacity floor for the worker—whichever of following is (at the time of payment) more:
(i)65% of the worker’s average pre-incapacity weekly earnings;
(ii)the statutory floor.
A worker stops being entitled to compensation under this section at the earliest of the following times:
(a)when the worker stops being totally incapacitated;
(b)when the worker returns to work;
(c)for a worker who, at the time of the injury being compensated, was more than 2 years younger than pension age—when the worker reaches pension age;
(d)for a worker who, at the time of the injury being compensated, was 2 years younger than pension age, or older—2 years after the worker first became entitled to compensation under this section;
(e)when the worker dies.
In this section:
pre-incapacity floor, for a worker, means the statutory floor that applied immediately before the worker’s incapacity date.
8DPartially incapacitated workers up to 26 weeks after incapacity date
This section applies if the worker is partially incapacitated because of a compensable injury.
For 26 weeks after the incapacity date, the worker is entitled to receive weekly compensation equal to the difference between—
(a)the worker’s average pre-incapacity weekly earnings; and
(b)the average weekly amount that the worker is being paid for working or could earn in reasonably available suitable employment.
In working out the average weekly amount the worker could earn, consideration may be given to the following:
(a)suitable employment that the worker unreasonably rejects;
(b)suitable employment that the worker obtains but unreasonably discontinues.
8EPartially incapacitated workers after 26 weeks after incapacity date
This section applies if—
(a)the worker is partially incapacitated because of a compensable injury; and
(b)26 weeks have passed since the incapacity date.
The worker is entitled to receive weekly compensation equal to the difference between the weekly amount the worker is being paid for working and—
(a)if 100% of the worker’s average pre-incapacity weekly earnings is less than the statutory floor—100% of the worker’s average pre-incapacity weekly earnings; or
(b)if the relevant percentage of the worker’s average pre-incapacity weekly earnings is less than the statutory floor—the statutory floor; or
(c)if the relevant percentage of the worker’s average pre-incapacity weekly earnings is more than the statutory ceiling—the statutory ceiling; or
(d)in any other case—the relevant percentage of the worker’s average pre-incapacity weekly earnings.
For subsection (2), the relevant percentage is—
(a)if the worker is not working or works 25% of the worker’s average pre-incapacity weekly hours or less—65%; or
(b)if the worker is working more than 25% of the worker’s average pre-incapacity weekly hours but not more than 50%—75%; or
(c)if the worker is working more than 50% of the worker’s average pre-incapacity weekly hours but not more than 75%—85%; or
(d)if the worker is working more than 75% of the worker’s average pre-incapacity weekly hours but not more than 85%—95%; or
(e)if the worker is working more than 85% of the worker’s average pre-incapacity weekly hours—100%.
In this section:
statutory ceiling, in relation to an amount, means 150% of AWE at the time the amount is to be paid.
8FStopping of payments for partial incapacity
A worker stops being entitled to payments under section 8D (Partially incapacitated workers up to 26 weeks after incapacity date) or section 8E (Partially incapacitated workers after 26 weeks after incapacity date) at the earliest of the following times:
(a)when the worker stops being partially incapacitated;
(b)for a worker who, at the time of the injury being compensated, was more than 2 years younger than pension age—when the worker reaches pension age;
(c)for a worker who, at the time of the injury being compensated, was 2 years younger than pension age, or older—2 years after the worker first became entitled to compensation under section 8C (Totally incapacitated workers), 8D or 8E, whichever is earliest;
(d)when the worker dies.
8GEffect on payment period of loss of entitlement to weekly compensation
This section applies if a worker would be entitled to weekly compensation under section 8C (Totally incapacitated workers), section 8D (Partially incapacitated workers up to 26 weeks after incapacity date) or section 8E (Partially incapacitated workers after 26 weeks after incapacity date) but the payment of the compensation has been stopped under section 10F (No compensation while imprisoned) or section 10ZI (Compliance by workers).
The period when the worker’s entitlement to payment has stopped is counted as part of the period for payment under sections 8C, 8D and 8E.
8HLiving outside Australia (ACT WCA sch 1 cl 14)
A worker who is otherwise entitled to receive weekly compensation is not entitled to the compensation if the worker stops living in Australia.
Subsection (1) does not apply to the worker if a medical referee certifies that—
(a)the incapacity resulting from the injury is likely to be permanent; or
(b)the worker’s absence from Australia is likely to help the worker recuperate.
8IEffect of living outside Australia if compensation still payable (ACT WCA sch 1 cl 14)
This section applies if the worker lives outside Australia but is, apart from this section, still entitled to weekly compensation.
NoteA worker living outside Australia is still entitled to compensation if s 8H (2) applies to the worker.
The worker is not entitled to weekly compensation, but is entitled to receive quarterly the amount of the weekly compensation payable during the previous quarter.
However, the worker is entitled to receive quarterly payment of compensation only if the worker proves the worker’s identity and that the worker continues to be incapacitated by the incapacity in relation to which the weekly compensation is payable.
In this section:
quarter means a period of 3 months beginning on 1 July, 1 October, 1 December or 1 April.
8JEffect of payment of weekly compensation on other benefits etc
This part is not intended to affect an entitlement that, apart from this Act, the worker has to a benefit or payment except so far as a law in force in the Territory otherwise applies.
Examples of benefits not affected
1accrual of long service leave
2accrual of annual leave
8KNo assignment etc of weekly compensation
(ACT WCA sch 4, cl 13)Weekly compensation (including compensation payable under section 8I (Effect of living outside Australia if compensation still payable)) may not—
(a)be assigned, charged or attached; and
(b)pass to anyone else by operation of law; and
(c)have a claim set off against it.
Part 4.4Compensation for permanent injuries
8LMeaning of loss (NSW WCA s 65)
In this chapter:
loss, in relation to a thing—
(a)means—
(i)the loss of the thing; or
(ii)the permanent loss of the use, or efficient use, of the thing; and
(b)includes the following:
(i)permanent musculoskeletal impairment, or another permanent impairment;
(ii)a loss, damage, impairment, disfigurement or disease mentioned in schedule 1 (Compensation for permanent injuries).
8MMeaning of single loss amount
In this part:
single loss amount means $100 000 cpi indexed.
8NMeaning of maximum loss amount
In this part:
maximum loss amount means $150 000 cpi indexed.
8OCompensation for permanent injuries generally
(ACT WCA s 10D and s 10F, NSW WCA s 66)
A worker who has suffered a loss mentioned in an item of schedule 1 as the result of a compensable injury is entitled to receive from the worker’s employer, as compensation for the loss, the percentage of the single loss amount mentioned in that item.
For this section, the loss is to be worked out when the last of the following happens:
(a)the worker’s employer became liable to pay compensation;
(b)it is unlikely that there will be an improvement or further improvement in the use, or efficient use, of the injured part of the body.
If a payment of compensation under this part has been made in relation to an injury, nothing prevents a further payment of compensation under this part from being made in relation to the same injury if there is an increase in the loss of the efficient use of the injured part of the body.
Example of loss of efficient use of injured part of body
A loss, or further loss, of sight in an injured eye.
8OAActuarial review and back, neck and pelvis impairments
This section applies to the following items in schedule 1 (the disallowable items):
(a)item 46—permanent impairment of back;
(b)item 47—permanent impairment of neck;
(c)item 48—permanent impairment of pelvis.
As soon as practicable after the Workers Compensation Amendment Act 2001 is notified, the Minister must commission a report from an actuary who has expertise in workers compensation insurance about the actuarial effect of the amendments made by that Act to this Act and, in particular, the actuarial effect of the inclusion of the disallowable items in schedule 1.
NoteThis section also commences on the day the Workers Compensation Amendment Act 2001 is notified. Schedule 1 commences later, on 1 July 2002. See that Act, s 2.
A copy of the report must be presented to the Legislative Assembly on or before the first sitting day after 1 February 2002.
Notice of motion to disallow any of the disallowable items (a notified item) may be given to the Legislative Assembly within 6 sitting days after the report is presented to the Assembly.
If the Legislative Assembly passes a resolution to disallow a notified item, schedule 1 is taken to be amended by omitting the item.
For this section, the Legislative Assembly is taken to have passed a resolution to disallow a notified item if, at the end of 6 sitting days after notice is given—
(a)the notice has not been withdrawn and the motion has not been called on; or
(b)the motion has been called on and moved, but has not been withdrawn or otherwise disposed of.
If the Legislative Assembly passes a resolution to disallow a notified item, the Minister must prepare a written notice stating that, because of a resolution passed by the Legislative Assembly, schedule 1 is taken to be amended by omitting the item.
The notice is a notifiable instrument.
NoteA notifiable instrument must be notified under the Legislation Act 2001.
The Minister must ensure that the notice is notified within 7 days after the Legislative Assembly passes the resolution.
This section expires on 1 July 2002.
8PCompensation for 2 or more losses
A worker who has suffered 2 or more losses mentioned in schedule 1 (Compensation for permanent injuries) because of an injury is not entitled to receive as compensation under this part more than the maximum loss amount for the losses.
8QCompensation and left-handedness
If a worker’s left arm or hand is the worker’s dominant limb, in working out the loss for the worker—
(a)the loss of the worker’s left arm, left hand or fingers of left hand is to be compensated as if it is the loss of the worker’s right arm, right hand or fingers of right hand; and
(b)the loss of the worker’s right arm, right hand or fingers of right hand is to be compensated as if it is the loss of the worker’s left arm, left hand or fingers of left hand.
8RCompensation for combination of items
If a loss (other than the impairment of the back, neck or pelvis) may be compensated by a combination of items in schedule 1 (Compensation for permanent injuries) or by a proportionate loss of a single item, the loss is to be compensated by a proportionate loss of the single item.
Examples
1 Loss of 2 or more fingers is to be compensated as a proportionate loss of the hand.
2 Loss of a hand includes the loss of the thumb and other fingers of the hand and is to be compensated as a loss, or proportionate loss, of the hand.
3 Loss of an arm at or above the elbow includes the loss of the arm below the elbow and loss of the hand and is to be compensated as a loss, or a proportionate loss, of the arm at or above the elbow.
4 Loss of a leg at or above the knee includes the loss of the leg below the knee and loss of the foot and is to be compensated as a loss, or a proportionate loss, of the leg at or above the knee.
5 Loss of a leg below the knee includes the loss of the foot and is to be compensated as a loss, or a proportionate loss, of the leg below the knee.
8SCompensation for only arm, leg, hand or foot
Loss of an only arm, leg, hand or foot is treated under schedule 1 as the loss of both arms, legs, hands or feet.
8TCompensation for loss of sexual organs
The following percentages of the single loss amount are payable for the loss of sexual organs (subject to the maximum percentage of 47% and without limiting compensation for the loss of another sexual organ):
(a)the percentage payable for loss of the penis is 47%;
(b)the percentage payable for loss of 1 testicle is 10%;
(c)the percentage payable for loss of 2 testicles or an only testicle is 47%.
8ULoss of bowel function
To work out whether and to what extent a worker has suffered permanent loss of bowel function—
(a)the bowel is taken to include the anal sphincter; and
(b)permanent ileostomy and permanent colostomy are each taken to constitute permanent loss of bowel function for which the maximum percentage is payable.
8VProportionate loss of use (NSW WCA s 68)
If a loss suffered by a worker consists of the loss of a proportion, but not all, of a thing mentioned in schedule 1 (Compensation for permanent injuries), a percentage of the compensation payable for the total loss of the thing equal to the percentage lost by the worker is payable as compensation under section 8O (Compensation for permanent injuries generally).
In working out the extent of the loss of the thing, the extent to which the loss, or the effect of the loss, may be reduced or limited by an external removable aid or appliance is not to be taken into account.
The amount of compensation payable for a particular case must, unless decided by agreement, be worked out by arbitration under this Act.
8WSpecial provisions for HIV/AIDS (NSW WCA s 67A)
Compensation is not payable under section 8O (Compensation for permanent injuries generally) for a loss that is related to HIV infection or AIDS if the HIV or AIDS was contracted during voluntary sexual activity or illicit drug use.
Section 8V does not apply to a loss that is HIV infection or AIDS.
In this section:
AIDS means Acquired Immune Deficiency Syndrome.
HIV infection means an infection by the Human Immunodeficiency Virus.
8XDeduction for previous injury or pre-existing condition
(NSW WC s 68A (1), (2), (6) and (8))
In working out the compensation payable under this part for a loss (the initial loss), an amount must be deducted from the compensation (the deductible proportion) for any proportion of the loss attributable to—
(a)a previous injury (whether or not it is an injury for which compensation has been paid, or is payable, under this part); or
(b)a pre-existing condition or abnormality.
In subsection (1), it does not matter whether the initial loss is a total or partial loss.
If there is a deductible proportion for a loss but the extent of the deductible proportion (or a part of it) will be difficult or costly to work out, it is to be assumed that the deductible proportion for the loss (or the relevant part of the loss) is 10% of the loss, unless this assumption is contrary to the available evidence.
Example
If this subsection requires it to be assumed that the deductible proportion in relation to a particular loss is 10% and the loss is 30% of the loss of the use of the right arm, the deductible proportion for the loss is 3% (that is, 10% of 30%).
However, section 8Z must be used to work out how much (if any) of a worker’s hearing loss is caused by age.
8YFurther loss and deductible proportions
(NSW WC s 68A (3) and (4))
This section applies in working out the compensation payable for a further loss (the further loss) resulting from an initial loss.
An amount proportionate to the deductible proportion of the initial loss must be deducted from the compensation payable for the further loss.
A deduction under subsection (2) in relation to a further loss is in addition to, not in substitution for, any deductible proportion for the further loss.
8ZLoss of hearing because of age (NSW WC s 70)
This section applies in working out the percentage of the decrease of hearing in relation to boilermakers deafness of a worker who is the prescribed age or older, but does not apply to total hearing loss in either of the worker’s ears.
For this part, it is to be conclusively presumed that the worker’s loss of hearing to be attributed to loss of hearing because of age is 0.5 decibels for each complete year of the worker’s age over the prescribed age.
For this section, the prescribed age is—
(a)for a male—55 years old; or
(b)for a female—65 years old.
No compensation for less than 6% hearing loss
(NSW WCA s 69A (1), (3), (4), (5), (6))A worker is not entitled to compensation under section 8O (Compensation for permanent injuries generally) for a loss of hearing because of boilermakers deafness (the hearing loss) if the worker’s total hearing loss is less than 6%.
However, the worker is entitled to compensation for the hearing loss if the total hearing loss reaches 6% or more.
Example
Assume all hearing losses mentioned in this example are because of boilermakers deafness.
A worker suffers a hearing loss of 3% (the first hearing loss that the worker has suffered). No compensation is payable under section 8O for the loss because it is less than 6%, although notice of injury may be given or a claim may be made for the hearing loss.
The worker suffers a further hearing loss of 6%, bringing the total loss to 9%. The total loss has now passed the 6% threshold and compensation is payable for the full 9%. Compensation for the initial 3% hearing loss will be payable by the earlier employer if the worker made a claim or gave notice of injury for the initial hearing loss.
The worker suffers a further hearing loss of 6%. The worker is entitled in the usual way to compensation for the 6% further loss because the 6% threshold has already been passed (the total loss is now 15%).
Note Pt 5.3 (Obligations on injury) and ch 6 (Claims) apply to a hearing loss even if it is not immediately compensable because of this section.
In working out the percentage hearing loss because of boilermakers deafness, the loss of hearing is to be worked out as a proportionate loss of hearing of both ears, even if the loss is in 1 ear only.
A lawyer or agent who acts for a worker on a claim for compensation for loss of hearing because of boilermakers deafness is not entitled to recover costs from the worker or the employer in relation to the claim if no compensation is payable on the claim because the worker’s total hearing loss is less than 6%.
In this section:
total hearing loss means the total of the present loss and all previous losses of hearing because of boilermakers deafness.
9APresumption to be drawn from refusal to submit to hearing examination (NSW WCA s 69A (7))
This section applies to a worker with a claim for which no compensation is payable because of section 9.
If the worker fails to allow himself or herself to be examined as required under the worker’s personal injury plan, or obstructs the examination, it is presumed in the absence of evidence to the contrary that the worker has no hearing loss because of boilermakers deafness.
9BEmployer’s responsibility to pay for hearing loss tests
(NSW WCA s 69B)
If an employer would, apart from section 9 (No compensation for less than 6% hearing loss), be liable to pay compensation under section 8O (Compensation for permanent injuries generally) for a worker’s hearing, the employer is liable under this chapter to pay the cost of only the following hearing tests for the loss:
(a)a test carried out at least 3 years after any previous test that the employer has paid for;
(b)a test that finds that the worker has suffered a total hearing loss because of boilermakers deafness of 6% or more;
(c)a test carried out after the worker has left the worker’s employment with the employer if the hearing loss is attributable to the employment;
(d)a test carried out by a doctor, or audiologist, using an audiogram to work out the level of hearing loss.
The cost of a hearing test for the worker is the cost of obtaining a medical certificate, and any examination required for the certificate, about the extent of the worker’s hearing loss.
This section does not require payment by an employer for the cost of obtaining a hearing test that the employer would not otherwise be liable to pay for under this chapter.
In this section:
total hearing loss means the total of the present loss and all previous losses of hearing because of boilermakers deafness.
9CReimbursement for costs of medical certificate and examination (NSW WCA s 73)
Obtaining a medical certificate, and any examination required for the certificate, is taken to be medical or related treatment for this chapter if the worker gives the employer a copy of the certificate.
In this section:
medical certificate means a report or certificate of a doctor that certifies—
(a)that a worker has suffered a loss mentioned in schedule 1 (Compensation for permanent injuries); or
(b)the extent of the loss to allow the amount of compensation payable for the loss to be worked out.
9DLimited entitlement if death happens within 3 months
(ACT WCA s 10F)
This section applies if—
(a)a worker has received a compensable injury; and
(b)the worker dies within 3 months after receiving the compensable injury because of the compensable injury or another injury received at the same time.
The worker is not entitled to receive compensation for the compensable injury under the following items of schedule 1 (Compensation for permanent injuries):
(a)item 2 (loss of sense of taste or smell);
(b)item 3 (loss of senses of taste and smell);
(c)item 41 (loss of sexual organs);
(d)item 42 (loss of both breasts);
(e)item 43 (loss of 1 breast);
(f)item 44 (permanent and total loss of capacity to engage in sexual intercourse);
(g)item 49 (severe facial disfigurement);
(h)item 50 (severe bodily disfigurement).
Part 4.5Compensation for medical treatment, damage and other costs
9EApplication of pt 4.5 (ACT WCA s 11 (1))
This part applies if—
(a)compensation under this Act is payable by an employer to, or in relation to, a worker in relation to an injury; or
(b)the operation of section 9 (No compensation for less than 6% hearing loss) means no compensation is payable by an employer to, or in relation to, a worker in relation to an injury; or
(c)compensation would be payable by an employer to, or in relation to, a worker in relation to an injury except that—
(i)the worker is not incapacitated for work; or
(ii)the worker is imprisoned (see section 10F); or
(iii)weekly compensation has been suspended under section 10ZI (Compliance by workers); or
(iv)the worker has contravened this Act.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act 2001, s 104).
9FEmployer liability for medical treatment and damage
(ACT WCA s 11 (2), (3), (3A))
The employer is liable to pay—
(a)for the cost of medical treatment reasonably obtained in relation to the injury—an amount of compensation appropriate for the provision of the medical treatment, having regard to the charges customarily made for similar medical treatment in the place where the treatment is obtained; and
(b)in relation to any damage to, or loss of, the worker’s clothing sustained in association with the injury—compensation of a reasonable amount for the repair or replacement of the damaged or lost clothing.
However, the total amount payable under subsection (1) for each of the following must not be more than the maximum amount:
(a)for the cost of medical treatment consisting of the repair or replacement of a worker’s contact lenses, crutches, prosthesis, spectacles or other artificial aid;
(b)for damage to or loss of a worker’s clothing.
In subsection (2):
maximum amount, in relation to a treatment, damage or loss, means—
(a)if an amount has been agreed between the worker and employer—that amount; or
(b)in any other case—$500 cpi indexed.
In this section, the cost of medical treatment is taken to include—
(a)the amount of wages lost by the worker because of the worker’s attendance at a place (the treatment place) to undergo the treatment; and
(b)the cost of taking the worker (whether the worker or someone else does the taking) to and from the treatment place worked out under section 9J (Transport costs other than private car) or section 9K (Working out transport costs for private cars); and
(c)the cost of any accommodation (including the cost of meals) required by the worker because of the worker’s attendance at the treatment place worked out under section 9L (Costs of accommodation and meals).
9GClaim for compensation for pt 4.5 (ACT WCA s 11 (4), (5))
A worker may make a claim for compensation under this part for the cost of medical treatment or in relation to damage to, or loss of, the worker’s clothing only if the worker has given the employer written notice stating—
(a)the amount of compensation sought; and
(b)reasonable details of the expenses for which compensation is sought.
However, a failure to give notice, or a defect or inaccuracy in the notice, does not affect a claim for compensation under this part if it is found in the proceeding on the claim that—
(a)if a notice or amended notice were then given and the hearing postponed, the employer’s defence is not, or would not be, prejudiced by the failure, defect or inaccuracy; or
(b)the failure, defect or inaccuracy was caused by mistake or other reasonable cause.
9HSecond opinions (ACT WCA s 11 (6))
This section applies if the worker receives medical treatment and claims the cost of it from the employer under this part.
The employer may, in consultation with the doctor or other person providing the treatment, and before making a payment under this part, require the worker to be examined by a doctor, or other person, chosen by the employer.
9IPayments for treatment received from hospital (ACT WCA s 11 (7))
This section applies if the employer is liable under this part to pay an amount in relation to medical treatment received by the worker from a hospital.
The employer must pay the amount, less any amount previously paid by the worker in relation to the treatment, on demand—
(a)for a private hospital—to the proprietor of the hospital; or
(b)for any other hospital—to the person authorised in writing by the governing entity in charge of the hospital to receive payments payable to the hospital.
9JTransport costs other than private car
(ACT WC Regs r 14)
This section sets out how the costs of taking an injured worker to and from a place (other than by private motor vehicle) to undergo medical treatment must be worked out.
If the worker cannot be taken in a motor vehicle (other than an ambulance) because of the worker’s injury, the transport cost is the actual cost of the transport by ambulance.
The transport cost is the actual cost of the public transport if the worker is taken by public transport because, although the worker can be taken in a private motor vehicle—
(a)the worker is prohibited by law from taking himself or herself in a private motor vehicle and no-one else is available to take the worker in a private motor vehicle; or
(b)no private motor vehicle is available.
The transport cost is the reasonable cost of transport if a private motor vehicle or public transport is not reasonably available, or reasonably appropriate, to transport the worker in the circumstances.
In this section:
public bus—see the Road Transport (Public Passenger Services) Act 2001, dictionary.
public transport means a public bus, a taxi or a restricted taxi.
restricted taxi—see the Road Transport (General) Act 1999, section 100.
taxi—see the Road Transport (General) Act 1999, section 100.
9KWorking out transport costs for private cars
The costs of taking an injured worker by private motor vehicle (the car) to and from a place to undergo medical treatment must be worked out in accordance with this section.
The transport cost is the cost worked out by multiplying the number of kilometres travelled to and from the place by the per kilometre cost for the car.
The per kilometre cost for the car is the amount mentioned in the Income Tax Assessment Regulations 1997 (Cwlth), schedule 1, part 2 in relation to the size of the car for the financial year in which the cost was incurred.
9LCosts of accommodation and meals (ACT WC Regs r 15)
The cost of accommodation for the worker is the relevant amount set out in a public ruling by the Commonwealth Commissioner of Taxation in relation to reasonable allowance amounts for the year in which the costs were incurred.
NoteFor the financial year 2000-2001, the ruling in relation to reasonable allowance amounts is TR2000/13. It is available on the website of the Australian Taxation Office (>
The relevant amount, for accommodation, is the amount that would be allowed for an employee on the lowest salary for which allowances are given for the place where the employee was accommodated.
The worker is not entitled to payment for a meal unless the meal is eaten while the worker—
(a)is travelling to or from medical treatment (the treatment) for which compensation is payable under this part; or
(b)is at a place to receive the treatment; or
(c)is staying at accommodation for which compensation is payable under this part.
In this section:
accommodation, for a worker, includes meals for the worker, other than a meal to which the worker is not entitled to payment because of subsection (3).
public ruling—see the Taxation Administration Act 1953 (Cwlth), section 14ZAAA (Interpretation).
Part 4.6Compensation for death
Death benefits
This section applies to the death of a worker for which compensation is payable under this Act.
The dependants of the worker are entitled to the following:
(a)a single lump sum payment of $150 000 cpi indexed to be divided between the dependants;
(b)for each dependant who is a child—weekly compensation of $50 cpi indexed;
(c)the funeral expenses of the worker to a maximum of $4 000 cpi indexed.
In working out for this Act whether or not a child is, or was, dependent on the earnings of the worker, any family tax benefit within the meaning of the A New Tax System (Family Assistance) Act 1999 (Cwlth), section 3 (definitions) in relation to the child must be disregarded.
Compensation under subsection (2) (b) is payable only while the person receiving it is a child.
10APayment into court of lump sum death benefits
(ACT WCA sch 1 cl 6)
A payment mentioned in section 10 (2) (a) (the lump sum) must be paid into the Magistrates Court, unless the court otherwise orders.
The Magistrates Court must, until the lump sum is paid to the person entitled to it—
(a)invest, apply or otherwise deal with the lump sum payment in the way the court considers appropriate for the benefit of the person entitled to it under this Act; or
(b)deal with it under the Public Trustee Act 1985, section 25 (Payment of money etc to public trustee on behalf of a person under disability).
The receipt of the registrar of the Magistrates Court is a sufficient discharge for the amount paid in.
Part 4.7Registration of agreements for compensation
10BRegistration of agreements for compensation
(NSW WCA s 66A (3), (4), (4A), (10))
If the worker agrees to receive an amount of compensation under section 8O (Compensation for permanent injuries generally) for a loss or under section 12J (How worker may commute rights) for the commutation of a right, a party to the agreement may apply to the Magistrates Court for registration of the agreement.
The Magistrates Court may refuse to register the agreement if the court considers that the agreement is inaccurate or that the agreed amount of compensation is inadequate.
The Magistrates Court must refuse to register the agreement unless satisfied that the worker received independent legal advice about the agreement before entering into it.
An agreement may deal with the payment of costs.
10CEffect of registration of agreements
(NSW WCA s 66A (1), (2), (7))
A worker with a registered agreement in relation to a loss or the commutation of a right is not entitled to receive any additional compensation for the loss or commutation of the right under an award of the Magistrates Court.
However, the Magistrates Court may award additional compensation if satisfied that—
(a)the agreement was obtained by fraud or undue influence; or
(b)the agreed amount of compensation was manifestly inadequate.
This section does not limit an award of additional compensation for a further loss suffered after the loss to which the agreement relates.
10DCancellation or amendment of registered agreements
On application by a party to a registered agreement, the Magistrates Court may amend the registered agreement or cancel the registration of the agreement.
The Magistrates Court may act under subsection (1) only if—
(a)a party becomes aware of evidence that was not available to the party when the agreement was made; and
(b)the court considers that, if the party had been aware of the evidence, the agreement would not have been made, or would not have been made as registered.
Part 4.8Exceptions to entitlements to compensation
10EWhen is compensation under Act generally not payable? (ACT WCA s 7 (3) and (4))
This section applies if, apart from this section, compensation in relation to an injury to a worker is payable under this Act.
Compensation is not payable if the injury to, or death of, the worker is caused by an intentionally self-inflicted injury.
Compensation is not payable if it is proved that the injury to the worker is attributable to the worker’s serious and wilful misconduct, unless the injury results in death or serious and permanent disablement.
In subsection (3), the personal injury received by the worker is attributable to the serious and wilful misconduct of the worker if—
(a)at the time of the injury, the worker was under the influence of alcohol or another drug, unless the alcohol or other drug did not contribute to the injury or was not consumed or taken voluntarily; or
(b)the injury was otherwise attributable to the serious and wilful misconduct of the worker.
In this section:
drug—see the Road Transport (Alcohol and Drugs) Act 1977, dictionary.
10FNo compensation while imprisoned
A worker who is otherwise entitled to compensation under this Act is not entitled to compensation for a period when the worker is imprisoned because the worker has been convicted of an offence against a law of the Territory, a State, the Commonwealth or another Territory.
Compensation for death or incapacity through disease
Section 9 (1) (b)before
contributing
insert
substantial
Compensation for disease
Section 9B (1) and (2)before
contributing
insert
substantial
Section 9B (3) and (4)
before
contributed
insert
substantially
Sections 10 to 10F
omit
New chapter 5
Chapter 5Injury management process
Part 5.1Object and definitions for chapter 5
10HObject of ch 5 (NSW WIMWCA s 41)
The object of this chapter is to establish a system the aim of which is to achieve the best results for the timely, safe and durable return to work of workers following workplace injuries.
10IDefinitions for ch 5 (NSW WIMWCA s 42 (1))
In this chapter:
injured worker means a worker who has received a workplace injury.
injury management means the process that consists of activities and procedures that are carried out or established to achieve a timely, safe and durable return to work for injured workers.
injury management program means a coordinated and managed program that integrates all aspects of injury management (including treatment, rehabilitation, retraining, claims management and employment management practices) to achieve the best results for a timely, safe and durable return to work of injured workers.
injury notice—see section 10O (2) (Early notification of workplace injury).
insurer means an approved insurer or self-insurer.
nominated treating doctor, for an injured worker, means the doctor or medical practice nominated under section 10X (Nomination of doctor for personal injury plan).
personal injury plan, for an injured worker, means a plan for coordinating and managing the aspects of injury management, that relate to the treatment, rehabilitation and retraining of the worker, to achieve a timely, safe and durable return to work for the worker.
workplace injury means an injury in relation to which compensation is or may be payable under this Act.
10JMeaning of employer and insurer if more than 1
(NSW WIMWCA s 42 (2))
This section applies if 2 or more employers are or may be liable to pay compensation to an injured worker but the employers do not all still employ the worker.
In this chapter:
employer, of the injured worker, is the employer that last employed the worker.
insurer means the employer’s insurer.
Part 5.2General obligations
10KInsurer to establish etc injury management program
An insurer must establish and maintain an injury management program.
An insurer must review the effectiveness of its injury management program at least once every 2 years and revise the program in accordance with the results of the review.
An insurer must give a copy of its injury management program, and any revised injury management program, to the Minister.
10LInsurer to give effect to injury management program
An insurer must give effect to its injury management program, in particular by complying with the obligations imposed on the insurer under the program.
An insurer must take appropriate steps to ensure that each employer who is insured by the insurer is aware of the employer’s obligations under this chapter and is aware of the requirements of the insurer’s injury management program.
Note An employer may have obligations under the following provisions of this part:
· under s 10N to comply with the obligations imposed on the employer under the injury management program
· under s 10O (2) to give notice of injury to the insurer
· under s 10V to take part and cooperate in establishing a personal injury plan for a worker, and to comply with the plan
· under s 10ZA and s 10ZB to provide suitable work for an injured worker
· under s 10ZE to establish a return-to-work program.
Subsection (2) does not apply to a self-insurer.
10MInsurer’s obligation of prompt payment
If an insurer is required under this Act to pay an amount for a service, the insurer must pay the amount to the person who provided the service (the service provider) within 30 days after the service is provided.
Maximum penalty: 10 penalty units.
Subsection (1) does not apply if the insurer does not pay for the service because—
(a)the insurer believes on reasonable grounds that the service has not been provided, or has not been properly provided, and the insurer has told the service provider, in writing, why the insurer has not paid for the service; or
(b)the insurer has another reasonable ground for not paying for the service.
10NEmployer’s obligations for injury management programs
An employer (other than a non-business employer) must comply with the reasonable obligations imposed on the employer by the employer’s insurer under the insurer’s injury management program.
Maximum penalty: 10 penalty units.
10NARegister of injuries (NSW WIMWCA s 63)
This section applies to a mine, quarry, factory, workshop, office or shop (the workplace).
A register of injuries (the register) is to be kept at the workplace in a place that is readily accessible to workers at the workplace.
In this section:
OH&S Council—see the Occupational Health and Safety Act 1989, section 5 (1), definition of council.
27BRules of court
The Executive may make rules in relation to procedure for this Act.
27CDirections about procedure
If the procedure for taking a step in a proceeding is not prescribed under this Act, the Chief Magistrate may, in writing, give directions about the procedure to be followed for the step.
A direction is a notifiable instrument.
NoteA notifiable instrument must be notified under the Legislation Act 2001.
If the procedure for taking a step in a proceeding is not prescribed under this Act (including under a direction mentioned under subsection (1)), the Magistrates Court may give directions about the procedure to be followed in relation to the step.
27CAReferences to Workers’ Compensation Act
In any Act, statutory instrument or document, a reference to the Workers’ Compensation Act 1951 is a reference to this Act.
Regulation-making power
Section 30 (2) and (3)substitute
The regulations may make provision in relation to the following:
(a)the procedure for the medical examination of injured workers;
(b)the functions of medical referees appointed under this Act;
(c)what compulsory insurance policies must, and must not, include;
(d)how the performance of brokers and agents in relation to workers compensation in the Territory may be monitored;
(e)the maximum fees and expenses that may be required for matters dealt with under this Act in relation to the following:
(i)medical examinations or medical treatment;
(ii)legal services;
(iii)retraining services;
(iv)investigative services;
(f)fees and expenses that may not, or may not for a period, be claimed from a worker for a service provided in relation to a compensable injury;
(g)the benefits payable to injured workers;
(h)the accreditation of people to act as injury managers;
(i)arbitration of matters and questions arising under this Act, including provision for the exclusion or modification of the Commercial Arbitration Act 1986 in its application to such an arbitration;
(j)protocols that may be approved by the Minister for this Act and how they may be approved;
(k)the approval of brokers for this Act, including—
(i)the factors to be taken into account in deciding whether to approve brokers; and
(ii)the conditions that may be imposed on approvals; and
(iii)how approvals may be renewed, suspended and revoked.
The regulations may also prescribe offences for contraventions of the regulations and prescribe maximum penalties of not more than 10 penalty units for offences against the regulations.
Part 8
omit
New chapter 15
insert
Chapter 15Transitional
Definitions for ch 15
In this chapter:
the amendment Act means the Workers Compensation Amendment Act 2001.
the current Act means the Workers Compensation Act 1951, as in force after the commencement of the amendment Act.
the previous Act means the Workers’ Compensation Act 1951, as in force immediately before the commencement of the amendment Act.
What injuries does this Act apply to?
The current Act applies only to injuries that happen on or after the commencement of the amendment Act.
However, if the worker first became aware that the worker received an injury after the commencement of the amendment Act, the injury is, for this chapter, taken to have happened when the worker became aware of the injury.
Also, if an injury (the original injury) that happened before the commencement of the amendment Act is aggravated after the commencement, the current Act applies to the aggravation as if the original injury were an injury within the meaning of the current Act.
What happens to injuries before the commencement of the amendment Act?
The previous Act continues to apply to injuries that happened before the commencement of the amendment Act.
Determined categories of workers
This section applies if, immediately before the commencement of the amendment Act, a determination by the Minister under the previous Act, section 6B (Determined categories of workers) was in force.
The determination is taken to be a determination under the current Act, section 4A (3) (Who is a worker?).
Approved insurers
An insurer (the previously approved insurer) that was an approved insurer under the previous Act immediately before the commencement of the amendment Act is taken to be an approved insurer under the current Act.
However, the approval of the previously approved insurer under the current Act ends 6 months after the commencement of the amendment Act, because of the operation of this section.
Subsection (2) applies to the approval irrespective of the terms of the approval under the previous Act.
Exempt employers
A person who was an exempt employer immediately before the commencement of the amendment Act is taken to have been exempted under the current Act, section 17C (Self-insurers).
However, the exemption of the person under section 17C ends 6 months after the commencement of the amendment Act.
Subsection (2) applies to the exemption irrespective of the terms of the exemption under the previous Act.
Modification of ch 15’s operation
The regulations may modify the operation of this chapter to make provision with respect to any matter that is not already, or is not (in the Executive’s opinion) adequately, dealt with in this chapter.
Expiry of ch 15
This chapter expires 2 years after it commences.
NoteTransitional provisions are usually of transitional effect. They are kept with the original provisions for a limited time to ensure people are aware of them. However, the expiry of transitional provisions does not end their effect (see Legislation Act 2001, s 88).
Schedules 1 to 4
substitute
Schedule 1Compensation for
permanent injuries
(see s 8L and s 8O)
| column 1 | column 2 | column 3 |
| item | nature of injury | % of maximum amount payable |
| Speech loss | ||
| 1 | loss of power of speech | 60 |
| Sensory loss | ||
| 2 | loss of sense of taste or smell | 17 |
| 3 | loss of senses of taste and smell | 34 |
| Hearing loss | ||
| 4 | loss of hearing of both ears | 65 |
| 5 | loss of hearing of 1 ear | 20 |
| Loss of vision | ||
| 6 | loss of sight of both eyes | 100 |
| 7 | loss of sight of an only eye | 100 |
| 8 | loss of sight of 1 eye, together with serious diminution of the sight of the other eye | 75 |
| 9 | loss of sight of 1 eye | 40 |
| 10 | loss of binocular vision (if not otherwise compensable under this schedule) | 40 |
| 11 | loss of eyeball (in addition to compensation for loss of sight of the eye) | 22 |
| Arm injuries | ||
| 12 | loss of right arm at or above elbow | 80 |
| 13 | loss of right arm below elbow | 75 |
| 14 | loss of left arm at or above elbow | 75 |
| 15 | loss of left arm below elbow | 70 |
| Hand injuries | ||
| 16 | loss of right hand | 70 |
| 17 | loss of left hand | 65 |
| 18 | loss of thumb of right hand | 30 |
| 19 | loss of thumb of left hand | 26 |
| 20 | loss of a joint of thumb | 16 |
| 21 | loss of forefinger of right hand | 21 |
| 22 | loss of forefinger of left hand | 18 |
| 23 | loss of 2 joints of forefinger of right hand | 16 |
| 24 | loss of 2 joints of forefinger of left hand | 12 |
| 25 | loss of first joint of forefinger of right hand | 10 |
| 26 | loss of first joint of forefinger of left hand | 9 |
| 27 | loss of middle finger of either hand | 12 |
| 28 | loss of 2 joints of middle finger of either hand | 10 |
| 29 | loss of first joint of middle finger of either hand | 6 |
| 30 | loss of little or ring finger of either hand | 11 |
| 31 | loss of 2 joints of little or ring finger of either hand | 9 |
| 32 | loss of first joint of little or ring finger of either hand | 6 |
| Leg injuries | ||
| 33 | loss of either leg at or above knee | 75 |
| 34 | loss of either leg below knee | 70 |
| Foot injuries | ||
| 35 | loss of a foot | 65 |
| 36 | loss of great toe of either foot | 22 |
| 37 | loss of a joint of great toe of either foot | 10 |
| 38 | loss of any other toe | 6 |
| 39 | loss of any joint of any other toe | 2 |
| Bowel injury | ||
| 40 | permanent loss of bowel function | 65 |
| Loss of sexual organs etc | ||
| 41 | loss of sexual organs | 47 |
| 42 | loss of both breasts | 47 |
| 43 | loss of 1 breast | 30 |
| 44 | permanent and total loss of capacity to engage in sexual intercourse | 75 |
| Brain damage | ||
| 45 | permanent brain damage if not, or not completely an injury otherwise compensable under this schedule | 100 |
| Permanent impairment of back, neck, pelvis | ||
| 46 | permanent impairment of back | 60 |
| 47 | permanent impairment of neck | 40 |
| 48 | permanent impairment of pelvis | 15 |
| Disfigurement | ||
| 49 | severe facial disfigurement if not, or not completely, an injury otherwise compensable under this schedule | 80 |
| 50 | severe bodily disfigurement if not, or not completely, an injury otherwise compensable under this schedule | 50 |
| Disease | ||
| 51 | HIV infection (Human Immunodeficiency Virus infection) | 100 |
| 52 | AIDS (Acquired Immune Deficiency Syndrome) | 100 |
Dictionary
(see s 1A)
ABS means the Australian Bureau of Statistics established under the Australian Bureau of Statistics Act 1975 (Cwlth).
approved insurer means an insurer approved by the Minister under section 16A (Approved insurers).
approved rehabilitation provider, for chapter 7 (Vocational rehabilitation)—see section 15A (Meaning of approved rehabilitation provider etc).
average pre-incapacity weekly earnings means earnings worked out under—
(a)for a worker who is not a contractor—section 5H (Working out average pre-incapacity weekly earnings for non-contractor); or
(b)for a worker who is a contractor—section 5I (Working out average pre-incapacity weekly earnings for contractor).
average pre-incapacity weekly hours means hours worked out under—
(a)for a worker who is not a contractor—section 5J (Working out average pre-incapacity weekly hours for non-contractor); or
(b)for a worker who is a contractor—section 5K (Working out average pre-incapacity weekly hours for contractor).
AWE means the Average weekly earnings, States and Territories, seasonally adjusted for the ACT (all males total earnings) issued by the ABS.
awe indexed—see section 5G.
boilermakers deafness includes deafness of a similar origin.
child, in relation to a worker, means an unmarried child of the worker who is—
(a)younger than 16; or
(b)a full-time student.
compensable injury means an injury in relation to which compensation is payable under this Act.
compensation means an amount payable under this Act in relation to an injury to, or the death of, a person.
compensation for costs, for a worker, means compensation to which the worker is entitled under part 4.5 (Compensation for medical treatment, damage and other costs).
compulsory insurance policy—see section 16 (Meaning of compulsory insurance policy).
cpi indexed—see section 5G.
deductible proportion, for part 4.4 (Compensation for permanent injuries)—see section 8X (1) (Deduction for previous injury or pre-existing condition).
dependent, of a dead worker, means an individual—
(a)who was totally or partly dependent on the worker’s earnings on the day of the worker’s death or who would, apart from the worker’s incapacity because of the injury, have been so dependent; and
(b)who was—
(i)a member of the worker’s family; or
(ii)a person to whom the worker acted in place of a parent or who acted in place of a parent for the worker.
determined categories, of Territory workers, means the categories of workers determined by the Minister under section 4A (3) (Who is a worker?).
employer—see section 3 (Meaning of employer).
employer, for chapter 5 (Injury management process)—see section 10J.
executive officer, of a corporation, means a person, by whatever name called and whether or not the person is a director of the corporation, who is concerned with, or takes part in, the corporation’s management.
full-time student means an individual who—
(a)is at least 16 years old but younger than 25; and
(b)is receiving full-time education at a secondary or tertiary educational institution.
given to the insurer, for part 6.2 (Time for accepting or rejecting claims)—see section 12.
incapacity date, for a worker, means—
(a)the date of the beginning of the period of the worker’s incapacity for work; or
(b)if the worker has been incapacitated for work because of the same injury for a number of separate periods—the date of beginning of the last period of incapacity; or
(c)if the worker is dead and the death was not immediately preceded by a period of incapacity for work in relation to which the worker received compensation under this Act—the date of the worker’s death.
initial loss, for part 4.4 (Compensation for permanent injuries)—see section 8X (1) (Deduction for previous injury or pre-existing condition).
injured worker, for chapter 5 (Injury management process)—see section 10I (Definitions for ch 5).
injury—see section 2A (Meaning of injury).
injury management, for chapter 5 (Injury management process)—see section 10I (Definitions for ch 5).
injury management program, for chapter 5 (Injury management process)—see section 10I (Definitions for ch 5).
injury notice—
(a)for chapter 5 (Injury management process)—see section 10O (2) (Early notification of workplace injury);
(b)for chapter 6 (Claims)—see section 11D (Time for giving injury notice).
insurer, for chapter 5 (Injury management process), means—
(a)an approved insurer or a self-insurer; or
(b)if there is more than 1 employer of the worker—see section 10J.
loss, for chapter 4 (Entitlements to compensation)—see section 8L.
maximum loss amount, for part 4.4 (Compensation for permanent injuries)—see section 8N.
medical referee means a medical referee appointed under section 26RD.
medical treatment means—
(a)an examination, test or analysis, conducted by or under the direction, or at the request, of a doctor to diagnose an injury; or
(b)medical or surgical treatment by a doctor; or
(c)dental treatment by a dentist or a dental prosthetist; or
(d)chiropractic treatment by a chiropractor; or
(e)treatment by a psychologist; or
(f)therapeutic treatment by a masseur, osteopath, physiotherapist, remedial kinesiologist or speech therapist; or
(g)therapeutic treatment given on referral by a doctor or dentist; or
(h)the taking of x-rays; or
(i)the provision, repair or replacement of contact lenses, crutches, prostheses, spectacles or other artificial aids; or
(j)a consultation, examination, therapeutic treatment or other service reasonably rendered in relation to a treatment mentioned in paragraph (c), (d), (f), (g), (h) or (i); or
(k)treatment and maintenance as a patient at a hospital; or
(l)the provision of nursing attendance, medicines, medical and surgical supplies and curative apparatus in a hospital or otherwise.
nominated treating doctor, for chapter 5 (Injury management process)—see section 10I (Definitions for ch 5).
non-business employer means an employer who employs the worker other than for work that is for (or incidental to) the employer’s trade or business.
partially incapacitated—see section 4 (Meaning of partially incapacitated).
payment includes a non-monetary payment.
pension age, for a worker—see the Social Security Act 1991 (Cwlth), section 23 (5A), (5B), (5C) and (5D).
personal injury plan, for chapter 5 (Injury management process)—see section 10I (Definitions for ch 5).
protocol—
(a)for chapter 7 (Vocational rehabilitation)—see section 15C (Meaning of protocol for ch 7 etc); or
(b)means a protocol, approved in accordance with the regulations, prescribing how certain activities under this Act should be performed.
registered agreement means an agreement registered under section 10B (Registration of agreements for compensation).
registered auditor means an auditor registered under the Corporations Act.
return-to-work program means a program mentioned in section 10ZE (Workplace rehabilitation).
reviewable decision, for chapter 13 (Notice and appeals)—see section 26RA (Notice of reviewable decisions to be given to affected people).
rules means the rules made under this Act.
self-insurer means an employer who is exempted under section 17C (Self-insurers).
single loss amount, for part 4.4 (Compensation for permanent injuries)—see section 8M.
statutory floor means the federal minimum wage decided from time to time by the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cwlth).
substantial means real, actual or material.
Territory worker means a worker of the Territory under section 7A (Compensation limited to Territory workers).
totally incapacitated—see section 3A (Meaning of totally incapacitated).
vocational rehabilitation, for chapter 7 (Vocational rehabilitation)—see section 15B (Meaning of vocational rehabilitation).
weekly compensation, for a worker, means compensation to which the worker is entitled under section 8C (Totally incapacitated workers), section 8D (Partially incapacitated workers up to 26 weeks after incapacity date) or section 8E (Partially incapacitated workers after 26 weeks after incapacity date).
worker—see chapter 3 (Meaning of worker).
workplace injury, for chapter 5 (Injury management process)—see section 10I (Definitions for ch 5).
Workers Compensation Act—renumbering
renumber provisions when Act next republished under Legislation Act 2001
Limitation Act 1985, new section 16A
insert
16AClaims for common law compensation for workers compensation
This section applies to a cause of action, other than a cause of action that is a claim for compensation under the Workers Compensation Act 1951, if—
(a)the cause of action relates to a personal injury that is a compensable injury under the Workers Compensation Act 1951; and
(b)a claim could be, or could have been, made in relation to the cause of action under the Workers Compensation Act 1951 if notice of the injury had been given as required under that Act.
The action is not maintainable if brought 3 or more years after the day the injury happened.
Magistrates Court (Civil Jurisdiction) Act 1982, section 497
omit
Schedule 1Consequential amendments
(see s 3)
[1.1]Section 6 (1) (definitions ofapproved insurer, base figure, compensation, court, dependant, determined categories of workers, employer, employer’s insurer, exempt employer, Index number, injury, medical treatment, outworker, overtime, prescribed insurance policy)
omit
[1.2]Section 6 (1) (definition of professional sporting activity)
omit
but does not include an activity referred to in subsection (4B), (4C) or (4D);
[1.3]Section 6 (1) (definition ofregistered auditor)
omit
[1.4]Section 6 (1) (definitions ofworker, worker of this Territory)
omit
[1.5]Section 6 (1) (definitions, as amended by this schedule)
relocate the definitions to the dictionary
[1.6]Remainder of section 6
omit
[1.7]Sections 6A and 6B
omit
[1.8]Section 7A (1)
substitute
An employer is liable to pay compensation only in relation to a worker of the Territory.
[1.9]Section 7A (4) (c)
omit
respect of
substitute
relation to
[1.10]Section 7A (5)
omit
[1.11]Section 7B
substitute
7BInjury outside Australia
Compensation is payable in relation to an injury to a Territory worker suffered while the worker is outside Australia only if compensation would be payable in relation to the injury if the worker suffered the injury in Australia.
[1.12]Section 9
relocate as section 5N
[1.13]Section 9AA
omit
[1.14]Sections 9A and 9B
relocate as sections 5O and 5P
[1.15]Section 14
relocate after section 5 (as inserted by this Act), as section 5AA
[1.16]Section 15
relocate as section 26RD
[1.17]Part 3, heading
renumber as chapter 8
[1.18]Section 18A (1)
substitute
(1AA) This section applies to the following:
(a)an approved insurer;
(b)a self-insurer;
(c)if an approved insurer or employer is a corporation—an officer of the corporation on behalf of the corporation.
The Minister may, by written notice given to a person to whom this section applies, require the person to give to the Minister, within the reasonable time stated in the notice—
(a)details of the number of injuries for which compensation has been paid during the period stated in the notice and the total compensation paid during that period; and
(b)any other details relating to the operation of this Act stated in the notice.
[1.19]Section 18E (2)
omit
schedule 4
substitute
the regulations
[1.20]Section 18EA (7) (b)
omit
(other than an Act)
[1.21]Section 18H (2) and (3)
omit
exempt employers
substitute
self-insurers
[1.22]Section 18H (4)
substitute
In making an apportionment under subsection (3), the nominal insurer must have regard as far as practicable to—
(a)the premium incomes received by each approved insurer in relation to compulsory insurance policies in the financial year before the occurrence; and
(b)the premium that would have been payable by each self-insurer if the self-insurer had obtained a compulsory insurance policy for that financial year (or the part of that financial year for which the self-insurer was a self-insurer).
[1.23]Section 18H (5)
omit
exempt employer
substitute
self-insurer
[1.24]Section 18H (5)
omit
or employer
substitute
or self-insurer
[1.25]Section 18H (6)
omit
exempt employer
substitute
self-insurer
[1.26]Section 18H (7)
omit
exempt employers
substitute
self-insurers
[1.27]Section 20
substitute
Premiums—maximum rates
An insurer must not charge, or accept, a premium for a compulsory insurance policy that is greater than the premium worked out in accordance with the maximum rate of premium prescribed under the regulations.
Maximum penalty: 50 penalty units.
[1.28]Section 20AA
omit
prescribed
substitute
compulsory
[1.29]Section 20A
omit
[1.30]Section 21
substitute
Workers’ rights to information (ACT WCA s 21)
If a Territory worker who is or has been employed by an employer asks the employer for the name and address of the person who was the employer’s approved insurer on a stated date, the employer must—
(a)if the employer was not a self-insurer on that date—tell the worker the name and address of the approved insurer, or each approved insurer, who issued a compulsory insurance policy to the employer that was current on that date; or
(b)if the employer was a self-insurer on that date—tell the worker that fact.
Maximum penalty: 20 penalty units.
An employer must keep displayed, in accordance with subsection (3), a notice containing a summary of the requirements of this Act for making compensation claims, in the form approved by the Minister under section 29 (Approved forms) for the notice, and stating—
(a)that claim forms for compensation are available from the employer on request and free of charge; and
(b)if the employer is a party to a compulsory insurance policy—the approved insurer’s name and address; and
(c)if the employer is a self-insurer—that the employer is exempt from the requirement to obtain insurance under this Act.
Maximum penalty: 10 penalty units.
The employer must display the notice in a conspicuous place so that it can be conveniently read by each Territory worker employed by the employer.
An employer must ensure that claim forms approved by the Minister under section 29 (Approved forms) are available during business hours to each Territory worker who is or has been employed by the worker on request and free of charge.
Maximum penalty: 10 penalty units.
[1.31]Part 4
renumber as chapter 9
[1.32]Section 21A
omit
Part
substitute
chapter
[1.33]Section 21A, definition of compensation
omit
[1.34]Section 21B
omit
in respect of
substitute
in relation to
[1.35]Section 21B
omit
Part
substitute
chapter
[1.36]Sections 22, 23 and 23A
omit
in respect of
substitute
in relation to
[1.37]Section 23A (4) (b)
substitute
(b)any amount paid under this Act, because of the worker’s death, for the benefit of a child who was a dependant of the worker.
[1.38]Part 5
renumber as chapter 10
[1.39]Section 23C, heading
omit
pt 5
substitute
ch 10
[1.40]Section 23C
omit
Part
substitute
chapter
[1.41]Section 23F
substitute
23FProvision of information to inspectors
An inspector may, by written notice given to an employer, require the employer to give to the inspector, within 28 days after the day the notice is given to the employer—
(a)a certificate from a registered auditor stating the total wages paid, in the period stated in the notice, by the employer to Territory workers employed by the employer; and
(b)a statutory declaration setting out—
(i)the determined categories of Territory workers employed by the employer in the period; and
(ii)the total wages paid to each category in the period.
An inspector may, by written notice given to an employer, require the employer, in the time and way stated in the notice—
(a)to produce for inspection any compulsory insurance policy to which the employer is a party; and
(b)to provide the related information (if any) that the inspector requires in the notice.
A registered auditor must not knowingly supply false, misleading or incomplete information in a certificate given to an inspector under subsection (1).
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
An employer must not, without reasonable excuse, fail to comply with a notice given to the employer under subsection (1) or (2).
Maximum penalty: 50 penalty units.
In this section:
employer includes a person whom an inspector believes, on reasonable grounds, is or has been an employer.
[1.42]Part 6
renumber as chapter 11
[1.43]Section 24
omit
Schedule 4
substitute
the regulations
[1.44]Section 25
omit
[1.45]Part 6A
omit
[1.46]Part 6B
renumber as chapter 12
[1.47]Section 26G
omit
Part
substitute
chapter
[1.48]Section 26G, definition of on-the-spot fine
substitute
on-the-spot fine, in relation to a prescribed offence, means the fine prescribed under the regulations for the offence.
[1.49]Sections 26H, 26J, 26L, 26P, 26Q and 26R
omit
Part
substitute
chapter
[1.50]Part 7
renumber as chapter 14
[1.51]Section 27D (1) and (2)
omit
exempt employers
substitute
self-insurers
[1.52]Section 27D (3)
substitute
In making an apportionment under subsection (2) for a financial year, the Minister must have regard as far as practicable to—
(a)the premium incomes received by each approved insurer in relation to compulsory insurance policies in the financial year; and
(b)the premium that would have been payable by each self-insurer if the self-insurer had obtained a compulsory insurance policy for the financial year (or the part of the financial year for which the self-insurer was a self-insurer).
[1.53]Section 27D (4)
omit
exempt employer
substitute
self-insurer
[1.54]Section 27D (4)
omit
or employer
substitute
or self-insurer
[1.55]Section 27D (5)
omit
exempt employer
substitute
self-insurer
Schedule 2Minor amendments
(see s 3)
[2.1]Section 6 (1) (definitions ofdental prosthetist, dentist and medical practitioner)
omit
[2.2]Section 6 (1) (definition ofspouse)
omit
bona fide
substitute
genuine
[2.3]Section 7A (3)
omit
pursuant to
substitute
under
[2.4]Section 7C
substitute
7CWhen is a worker taken to be totally incapacitated?
For this Act, a worker is taken to be totally incapacitated for work if—
(a)a doctor certifies that the worker is partially incapacitated for work; and
(b)the partial incapacity prevents the worker from performing the duties the worker performed before becoming incapacitated; and
(c)the employer cannot provide appropriate alternative employment; and
(d)the worker cannot find appropriate alternative employment.
For subsection (1), the worker is taken to be totally incapacitated from the time when the worker became partially incapacitated until 1 of the following happens:
(a)the worker becomes totally incapacitated;
(b)the employer provides the worker with appropriate alternative employment;
(c)the worker finds appropriate alternative employment.
[2.5]Section 14 (4)
substitute
This section does not prevent a worker recovering compensation from the contractor instead of the principal.
[2.6]Section 17B (1), penalty
substitute
Maximum penalty:
(a)for a 1st offence—50 penalty units; or
(b)for a 2nd or subsequent offence—
(i)if the person charged is an individual—250 penalty units, 2 years imprisonment or both; or
(ii)if the person charged is a corporation—1 000 penalty units.
[2.7]Section 17B (2), penalty
substitute
Maximum penalty:
(a)for a 1st offence—50 penalty units; or
(b)for a 2nd or subsequent offence—
(i)if the person charged is an individual—250 penalty units, 2 years imprisonment or both; or
(ii)if the person charged is a corporation—1 000 penalty units.
[2.8]Section 18 (1), penalty
substitute
Maximum penalty:
(a)for a 1st offence—50 penalty units; or
(b)for a 2nd or subsequent offence—
(i)if the person charged is an individual—250 penalty units, 2 years imprisonment or both; or
(ii)if the person charged is a corporation—1 000 penalty units.
[2.9]Section 18 (4), penalty
substitute
Maximum penalty:
(a)for a 1st offence—
(i)if the person charged is an individual—250 penalty units, 2 years imprisonment or both; or
(ii)if the person charged is a corporation—1 000 penalty units;
(b)for a 2nd or subsequent offence—
(i)if the person charged is an individual—1 000 penalty units, 10 years imprisonment or both; or
(ii)if the person charged is a corporation—10 000 penalty units.
[2.10]Section 18A (1)
omit
furnish
substitute
give
[2.11]Section 18A (1B) and (1C)
omit
furnishing
substitute
giving
[2.12]Section 18A (1C)
omit
furnished
substitute
gave
[2.13]Section 18A (2)
substitute
A person must not—
(a)fail to comply with a notice given to the person under subsection (1); or
(b)give details in response to a notice given to the person under subsection (1) that are false or misleading in a material particular.
Maximum penalty (subsection (2)): 50 penalty units.
[2.14]Section 18D (1) (a)
omit
thereafter
substitute
afterwards
[2.15]Section 18E
substitute
18E Reopening of agreements and awards
This section applies if a claim is made against the nominal insurer under section 18C (1).
The nominal insurer may apply to the Magistrates Court for an order directing that the agreement or award under which the compensation is payable be reopened on the ground that there is reason to believe that the employer has not honestly endeavoured to protect the employer’s own interests, and taken all reasonable steps to protect the employer’s own interests, in relation to the agreement, the appointment of a committee or the arbitration.
On the application, the Magistrates Court may order that the agreement or award be reopened.
18EAADeciding or re-deciding claim
If the Magistrates Court makes an order under section 18E, the court must decide or re-decide the claim for compensation by arbitration.
The nominal insurer must be a party to the arbitration.
In an award made by the Magistrates Court under this section, the court may set aside a previous agreement or award.
If an award of compensation is made against the employer by the Magistrates Court, the nominal insurer must pay to the person entitled the amounts payable under the award.
An agreement by a person to accept, in settlement of a claim against the nominal insurer, an amount less than the amount payable according to the relevant agreement or award has no effect unless approved by the Magistrates Court.
[2.16]Section 18EA (3) (b)
omit
court
substitute
Supreme Court
[2.17]Section 18EA (4)
omit
A court
substitute
The Supreme Court
[2.18]Section 18EA (8)
substitute
If—
(a)an agreement is set aside under subsection (2); and
(b)an action by a party to the agreement (the plaintiff) to recover damages in relation to a liability to which the agreement related is begun in a Territory court;
the plaintiff must, within 7 days after the day when the action was begun, give the nominal insurer written notice of the action.
Maximum penalty: 5 penalty units.
[2.19]Section 18J (1)
omit
powers and
[2.20]Section 18J (1) (c)
omit
those powers and
substitute
the nominal defendant’s
[2.21]Section 18J (2)
substitute
An employer must comply with a requirement of the nominal insurer under subsection (1).
Maximum penalty (subsection (2)): 50 penalty units.
[2.22]Section 21A, heading
substitute
21ADefinitions for pt 4
[2.23]Section 21A (1)
omit
[2.24]Section 21A (2) and (3)
substitute
21ABReferences to person who recovers damage etc
If damages are recovered by a person on someone else’s behalf, a reference in this chapter to a person who recovers damages is a reference to the person on whose behalf damages are recovered.
If compensation is paid or payable to a person for the benefit of someone else, a reference in the chapter to a person to whom compensation is paid or payable, as the case may be, is a reference to the person for whose benefit the compensation is paid or payable.
[2.25]Section 23C
substitute
23CDefinitions for pt 5
In this part:
connected—a thing is connected with an offence if—
(a)the offence has been committed in relation to it; or
(b)it will provide evidence of the commission of the offence; or
(c)it was used, or it is intended to be used, to commit the offence.
occupier, of premises, means a person believed by an inspector, on reasonable grounds, to be the occupier of, or in charge of, the premises.
offence includes an offence that there are reasonable grounds for believing has been, or will be, committed.
premises includes—
(a)a structure, building, aircraft, vehicle or vessel; and
(b)a place (whether enclosed or built on or not); and
(c)a part of premises (including premises mentioned in paragraph (a) or (b)).
[2.26]Section 23G (5)
substitute
A person must not, without reasonable excuse, contravene a requirement under this section.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
[2.27]Section 25A (1)
omit
legal practitioner
substitute
lawyer
[2.28]Section 26 (1) and (2) (b)
omit
the court
substitute
the Magistrates Court
[2.29]Section 26Q (3)
omit
in loco parentis
substitute
in place of a parent
Endnotes
Workers’ Compensation Act 1951
Republished as in force on 31 December 1998. See also Acts 1999 Nos 66, 82 and 85; 2000 Nos 74 and 80.
Penalty units
The Interpretation Act 1967, s 33AA deals with the meaning of offence penalties that are expressed in penalty units.
[Presentation speech made in Assembly on 15 June 2001]
I certify that the above is a true copy of the Workers Compensation Amendment Bill 2001 which was passed by the Legislative Assembly on 28 August 2001.
M J McRae
Clerk of the Legislative Assembly
© Australian Capital Territory 2001
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