Workers Compensation Regulation 2010 (NSW)
This Regulation is the Workers Compensation Regulation 2010.
This Regulation commences 1 February 2011 and is required to be published on the NSW legislation website.
In this Regulation:
(a) an employer insured under a policy of insurance to which the Workers Compensation Market Practice and Premiums Guidelines apply and whose basic tariff premium (within the meaning of those guidelines) for that policy would exceed $50,000, if the period of insurance to which the premium relates were 12 months, or
(b) an employer insured under more than one policy of insurance to which the Workers Compensation Market Practice and Premiums Guidelines apply and whose combined basic tariff premiums (within the meaning of those guidelines) for those policies would exceed $50,000, if the period of insurance to which each premium relates were 12 months, or
(c) an employer who is self-insured, or
(d) an employer who is insured with a specialised insurer and who employs more than 20 workers.
Notes included in this Regulation (other than notes in Schedule 6) do not form part of this Regulation.
Each kind of employment set out in Column 2 of Schedule 1 is prescribed as employment to which section 19 (1) of the 1987 Act applies.
A disease set out in Column 1 of Schedule 1 is prescribed as a disease that is related to the employment or, as the case may require, each kind of employment, set out in Column 2 of that Schedule opposite the description of that disease.
For the purposes of section 19 (2) of the 1987 Act, any one of the results set out in Column 3 of Schedule 2, if obtained by means of the medical test the requirements of which are set out opposite that result in Column 2 of that Schedule, is a result prescribed in respect of the disease, the name of which appears opposite that result in Column 1 of that Schedule.
A reference in this Part to an amount of money specified in an award or to an amount of a rate per 5 days or week or a minimum weekly rate fixed by an award or a Part or Division of an award is a reference to the amount or minimum weekly rate that is for the time being specified in, or fixed by, the award, Part, Division or industrial agreement, as the case may be, as in force from time to time.
The Authority may by order published in the Gazette:
(a) declare a specified class or classes of workers to be a class of workers to which this clause applies, and
(b) specify the manner in which the current weekly wage rate of a worker of each such class is to be calculated for the purposes of section 42 (1) (c) of the 1987 Act.
Each class of workers to which this clause applies by virtue of an order of the Authority under this clause is prescribed for the purposes of section 42 (1) (c) and (5) (b) of the 1987 Act.
The manner specified in the order as the manner of calculating the current weekly wage rate of a class of workers is prescribed for the purposes of section 42 (1) (c) of the 1987 Act in respect of that class of workers.
While an order of the Authority in force under this clause applies to a class of workers, clauses 8 and 9 do not apply to that class of workers.
For the purposes of section 42 (1) (c) and (5) (b) of the 1987 Act, the following classes of workers are prescribed:
(a) shearers bound by the Pastoral Employees (State) Award under the Industrial Relations Act 1996,
(b) shearers bound by the Pastoral Industry Award 1998 under the Fair Work Act 2009 of the Commonwealth.
For the purposes of section 42 (1) (c) of the 1987 Act, the formula prescribed in respect of each class of workers prescribed by subclause (1) is
Workers engaged in the meat processing industry whose employment is subject to an industrial instrument that provides for the payment of “overs” or a production loading under a tally, piecework or incentive system in respect of work performed in that industry are prescribed as a class of workers for the purposes of section 42 (1) (c) and (5) (b) of the 1987 Act.
In this clause:
For the purposes of section 42 (1) (c) of the 1987 Act, the formula prescribed for each worker of the class prescribed by subclause (1) is whichever of the following formulae is appropriate:
(a) except as provided by paragraphs (b), (c) and (d), the formula is:
(b) where the formula prescribed by paragraph (a) provides a greater rate for a particular week for the worker (being a worker whose employment is subject to an industrial instrument that provides for the payment of “overs” to the worker) than the rate of
per week, the formula is per week for that week for that worker, (c) where the formula prescribed by paragraph (a) provides a smaller rate for a particular week for the worker than the rate of
per week, the formula is per week for that week for that worker, (d) where the formula prescribed by whichever of paragraphs (a), (b) and (c) is appropriate provides a smaller rate for a particular week for the worker than any special rate (as referred to in subclause (4)) applicable to the worker for that week—the special rate applicable to the worker for that week.
A reference in subclause (3) (d) to a
In the application of the formulae prescribed by subclause (3) for the purpose of determining compensation payable in respect of a period of incapacity (consisting of a week or any part thereof) of a worker of the class prescribed by subclause (1):
(a) where that period consists of, or includes, Monday of that week and any other worker who is a co-worker of the injured worker worked on that Monday—the prescribed amount payable to that other worker for that Monday, or
(b) in any other case—0.
(a) where that period consists of, or includes, Tuesday of that week and any other worker who is a co-worker of the injured worker worked on that Tuesday—the prescribed amount payable to that other worker for that Tuesday, or
(b) in any other case—0.
(a) where that period consists of, or includes, Wednesday of that week and any other worker who is a co-worker of the injured worker worked on that Wednesday—the prescribed amount payable to that other worker for that Wednesday, or
(b) in any other case—0.
(a) where that period consists of, or includes, Thursday of that week and any other worker who is a co-worker of the injured worker worked on that Thursday—the prescribed amount payable to that other worker for that Thursday, or
(b) in any other case—0.
(a) where that period consists of, or includes, Friday of that week and any other worker who is a co-worker of the injured worker worked on that Friday—the prescribed amount payable to that other worker for that Friday, or
(b) in any other case—0.
(a) the total number of days of that period on which other co-workers of the injured worker worked, or
(b) where there are no such days—0.
For the purposes of subclause (5), a worker is a
A reference in subclause (5) to the prescribed amount payable to a worker for a day on which the worker worked is a reference to the amount of money that the worker is entitled, under the industrial instrument by which the worker is bound, to be paid for that day’s work:
(a) exclusive of any amount that the worker is so entitled to be paid in respect of shift work or overtime or otherwise at penalty rates, and
(b) inclusive of any amount that the worker is so entitled to be paid in respect of “overs” or (subject to subclause (8)) in respect of production loading.
For the purposes only of subclause (7) (b), an amount a worker is entitled to be paid in respect of production loading for a day’s work is taken not to include:
(a) in the case of a worker for whom production loading is calculated by reference to weekly production, any amount in excess of one-fifth of the production loading that would be payable to the worker in respect of the week in which that day occurs if the workers (in relation to whose “overs” that production loading is calculated) completed during that week a number of “overs” that provided each of those workers with pay for that week that is equivalent to the amount of money calculated in accordance with the formula
, or (b) in the case of a worker for whom production loading is calculated by reference to daily production, any amount in excess of the production loading that would be payable to the worker in respect of that day if the workers (in relation to whose “overs” that production loading is calculated) completed during that day a number of “overs” that provided each of those workers with pay for that day that is equivalent to the amount of money calculated in accordance with the formula
,
in each case with
For the purposes of section 42 (1) (d) of the 1987 Act, and clause 7 (2) (b) of Part 4 of Schedule 6 to the 1987 Act, the prescribed rate in respect of a period specified in Column 1 of the Table to this clause is the rate specified in Column 2 of that Table opposite that period.
This clause applies only to workers who, before 1 February 1992, became entitled to receive weekly payments in respect of incapacity for work.
Table
Column 1 | Column 2 | |
Period | Amount per week | |
1 | On and after 1 October 1987 and before 1 April 1988 | $284.70 |
2 | On and after 1 April 1988 and before 1 October 1988 | $288.60 |
3 | On and after 1 October 1988 and before 1 April 1989 | $294.80 |
4 | On and after 1 April 1989 and before 1 October 1989 | $302.20 |
5 | On and after 1 October 1989 and before 1 April 1990 | $313.20 |
6 | On and after 1 April 1990 and before 1 October 1990 | $319.80 |
7 | On and after 1 October 1990 and before 1 April 1991 | $334.60 |
8 | On and after 1 April 1991 and before 1 October 1991 | $339.00 |
9 | On and after 1 October 1991 and before 1 April 1992 | $341.30 |
10 | On and after 1 April 1992 and before 1 October 1992 | $351.50 |
11 | On and after 1 October 1992 and before 1 April 1993 | $355.90 |
12 | On and after 1 April 1993 and before 1 October 1993 | $357.20 |
13 | On and after 1 October 1993 and before 1 April 1994 | $359.00 |
14 | On and after 1 April 1994 | $360.60 |
For the purposes of each mention of the prescribed number of hours each week or the prescribed number of hours per week in Schedule 3 (Pre-injury average weekly earnings) to the 1987 Act, the prescribed number of hours is 38 hours.
The amount of $155 is prescribed as the minimum amount applicable to a worker for the purposes of section 44C (7) of the 1987 Act.
For the purposes of paragraph (b) of the definition of
Table
Column 1 | Column 2 |
Adjustment date | Latest index number |
1 April 1988 | 229.3 |
1 October 1988 | 234.2 |
1 April 1989 | 240.1 |
1 October 1989 | 248.8 |
1 April 1990 | 254.1 |
1 April 1998 | 146.4 |
1 October 1998 | 149.0 |
1 April 1999 | 151.6 |
1 October 1999 | 154.1 |
1 April 2000 | 156.6 |
1 October 2000 | 158.3 |
1 April 2001 | 161.9 |
1 October 2001 | 164.7 |
1 April 2002 | 167.6 |
1 October 2002 | 170.0 |
1 April 2003 | 172.9 |
1 October 2003 | 176.4 |
1 April 2004 | 179.6 |
1 October 2004 | 182.9 |
1 April 2005 | 185.8 |
1 October 2005 | 189.6 |
1 April 2006 | 193.5 |
1 October 2006 | 197.1 |
1 April 2007 | 200.9 |
1 October 2007 | 204.5 |
1 April 2008 | 208.5 |
1 October 2008 | 212.1 |
1 April 2009 | 216.4 |
1 October 2009 | 220.3 |
1 April 2010 | 224.5 |
1 October 2010 | 227.5 |
1 April 2011 | 232.1 |
1 October 2011 | 236.1 |
1 April 2012 | 240.5 |
1 October 2012 | 244.4 |
1 April 2013 | 249.0 |
1 October 2013 | 251.7 |
1 April 2014 | 254.9 |
1 October 2014 | 258.2 |
1 April 2015 | 261.5 |
1 October 2015 | 263.7 |
1 April 2016 | 267.2 |
A notice under section 38A (3) of the 1987 Act:
(a) may be based on the model form (if any) set out in the claims procedures referred to in section 38A (3) (d) of the 1987 Act, and
(b) may include additional information and explanatory matter to assist in the understanding of the notice, and
(c) may be varied or replaced by a further notice given to the worker in accordance with section 38A (3) of the 1987 Act.
Reminder copies of a notice under section 38A (3) of the 1987 Act may be given to the worker concerned from time to time.
A notice given to a worker in accordance with section 38A (3) of the 1987 Act is sufficient notice for any further period of unemployment in respect of the same injury.
In the case of any worker:
(a) who, before the commencement of Schedule 1 to the Workers Compensation Legislation (Amendment) Act 1994, was at the same time both partially incapacitated for work as the result of an injury and unemployed, and
(b) who is, as at or at any time after that commencement, both partially incapacitated for work as the result of that injury and unemployed,
the requirement under section 38A (2) (d) of the 1987 Act applies regardless of whether the worker has been notified in accordance with section 38A (3) of the 1987 Act.
For the purposes of section 43 (2) of the 1987 Act, the period of 14 days is prescribed in relation to any request made on or after 1 November 2006.
For the purposes of section 64B of the 1987 Act, a pre-injury employer is not liable to pay compensation for the cost of work assistance provided to assist a worker to return to work with a new employer if:
(a) the offer of employment with the new employer is an offer of employment for a period of less than 3 months, or
(b) the offer of employment has not been made in writing.
The person on whom a claim for compensation under section 64B of the 1987 Act is made must, within 14 days after the claim is made, determine the claim by accepting, or disputing, liability to pay the compensation.
Words and expressions used in this clause have the same meaning as in section 64B of the 1987 Act.
For the purposes of section 64C of the 1987 Act, an employer is not liable to pay compensation for the cost of education or training provided to assist a worker to return to work if:
(a) the provision of the education or training is inconsistent with the retraining or employment objectives of the injury management plan established for the worker, or
(b) the education or training is provided by any person or body other than:
(i) an NVR registered training organisation within the meaning of the National Vocational Education and Training Regulator Act 2011 of the Commonwealth, or
(ii) a registered higher education provider within the meaning of the Tertiary Education Quality and Standards Agency Act 2011 of the Commonwealth.
The person on whom a claim for compensation under section 64C of the 1987 Act is made must, within 21 days after the claim is made, determine the claim by accepting, or disputing, liability to pay the compensation.
A return-to-work program required to be established by a category 1 employer must be established before the expiration of the period of 12 months after the employer becomes a category 1 employer.
A return-to-work program required to be established by a category 2 employer must be established before the expiration of the period of 12 months after the employer becomes a category 2 employer.
The Authority may, in a particular case, extend the period during which a return-to-work program is required to be established.
Section 52 (2) (b) of the 1998 Act requires a return-to-work program to be developed by an employer in consultation with workers of the employer and any industrial union of employees representing those workers.
An employer who fails to establish a return-to-work program under section 52 of the 1998 Act within the period required by this Regulation is guilty of an offence.
Maximum penalty:
(a) in the case of a category 2 employer, 5 penalty units,
(b) in the case of a category 1 employer, 20 penalty units.
The Authority may prepare (in accordance with the return-to-work guidelines) standard return-to-work programs for category 2 employers generally or for different kinds of category 2 employers.
A category 2 employer who does not establish a separate return-to-work program in accordance with the 1998 Act may establish a return-to-work program by adopting a relevant standard return-to-work program prepared under this clause.
The Authority may include in a compensation claim approved form under section 65 (1) (b) of the 1998 Act a copy of any standard return-to-work program prepared under this clause.
An employer is not to be regarded as having established a return-to-work program unless the program complies with the return-to-work guidelines and any directions under or requirements of this Regulation.
A category 2 employer who adopts a relevant standard return-to-work program under clause 17 is to be regarded as having duly established a return-to-work program.
The Authority may give an employer directions in writing in connection with any return-to-work program established, or to be established, by the employer to ensure that the program complies with the return-to-work guidelines.
The Authority is to review a direction given by it under this clause if the employer concerned requests a review but need not review any particular direction more than once.
A return-to-work program must, if the return-to-work guidelines so require, nominate an approved provider of workplace rehabilitation services (or a list of such approved providers) for the purposes of the program.
Consultation on the nomination of an approved provider of workplace rehabilitation services is to be carried out in such circumstances and in such manner as the return-to-work guidelines may provide.
An employer who fails to display or notify a return-to-work program in accordance with section 52 (2) (c) of the 1998 Act at the places of work under the employer’s control is guilty of an offence.
Maximum penalty:
(a) in the case of a category 2 employer, 2 penalty units,
(b) in the case of a category 1 employer, 10 penalty units.
A category 2 employer is not required to display or notify a return-to-work program at the places of work under the employer’s control:
(a) if the employer provides a copy of the program to any worker who requests a copy or who claims compensation for any injury, or
(b) if the employer makes other appropriate arrangements to ensure that workers have access to a copy of the program.
A category 1 employer must:
(a) employ a person to be a return-to-work co-ordinator for injured workers of the employer, being a person who has undergone such training as the return-to-work guidelines may require, or
(b) engage a person in accordance with such arrangements as the return-to-work guidelines may from time to time permit to be a return-to-work co-ordinator for injured workers of the employer.
Maximum penalty: 20 penalty units.
The following are examples of the arrangements that the return-to-work guidelines can permit for the purposes of this clause:
(a) the engagement of a person under an arrangement with a person or organisation that provides return-to-work co-ordinators to employers,
(b) an arrangement under which a person is engaged on a shared basis by 2 or more employers.
The return-to-work guidelines can require an employer to obtain the approval of the Authority before entering into an arrangement for the purposes of subclause (1) (b).
The return-to-work guidelines can impose requirements with respect to the training, qualifications and experience of persons who may be engaged to be return-to-work co-ordinators under subclause (1) (b).
An employer’s return-to-work co-ordinator has such functions as may be specified in the return-to-work guidelines.
For the purposes of section 52 (5) of the 1998 Act, a group of 2 or more employers may establish a single return-to-work program for the members of the group if:
(a) those employers have engaged a person to be a return-to-work co-ordinator for injured workers of those employers on a shared basis, and
(b) in the opinion of the Authority:
(i) those employers are engaged in the same business, or
(ii) those employers operate in the same locality, or
(iii) those employers satisfy any requirements of the return-to-work guidelines imposed for the purposes of this paragraph, and
(c) in the opinion of the Authority, those employers have complied with all of the requirements of the return-to-work guidelines with respect to the establishment of a single return-to-work program for groups of employers.
The return-to-work guidelines can require employers to obtain the approval of the Authority for:
(a) the establishment of a single return-to-work program for a group of employers, and
(b) the terms of a single return-to-work program and any revisions or amendments to those terms.
The following classes of employers, to the extent indicated, are exempt from the requirement to establish a return-to-work program under section 52 of the 1998 Act and from clause 23:
(a) employers (including bodies corporate for strata schemes or strata (leasehold) schemes) who employ domestic or similar workers otherwise than for the purposes of the employer’s trade or business (but only to the extent of the workers concerned),
(b) employers who hold owner-builders permits under the Home Building Act 1989 (but only to the extent of workers employed for the purposes of the work to which the permits relate),
(c) employers (being corporations) who only employ workers who are directors of the corporation,
(d) employers who only employ workers who are members of the employer’s family,
(e) employers who only employ workers who perform work while outside New South Wales,
(f) employers exempted in writing by the Authority (but only to the extent specified in the exemption).
A person may apply to the Authority for a certificate of approval as a provider of workplace rehabilitation services.
Two or more persons jointly providing, or intending to jointly provide, workplace rehabilitation services may (but are not required to) apply for a joint certificate of approval.
An application must:
(a) be in the approved form, and
(b) contain such particulars and be accompanied by such documents as may be required by that form, and
(c) be accompanied by such fee as the Authority may determine.
The Authority is to determine an application for a certificate of approval:
(a) by granting a certificate to the applicant in the applicant’s name, or, if there is more than one applicant, in their joint names, or
(b) by refusing to grant a certificate.
In determining an application for a certificate of approval, the Authority is to have regard to:
(a) the application, and
(b) in relation to the applicant or each applicant (if more than one):
(i) if the applicant is a natural person—the desirability of granting individual approval to natural persons, and
(ii) the capacity of the applicant to comply with the conditions of approval for workplace rehabilitation providers approved by the Authority, and
(iii) any information supplied by a trade union or employer organisation relating to the applicant’s provision of rehabilitation services, and
(iv) any complaint lodged with the Authority against the applicant by a client of the applicant, and
(v) information procured in the course of any interviews with or examination of premises used by the applicant, and
(vi) verification of any references supplied by the applicant, and
(c) any relevant information relating to workers compensation costs and statistics concerning the return to work of injured workers, and
(d) such other matters as the Authority thinks fit.
The Authority must not grant a certificate unless:
(a) in the case of an application by a natural person or natural persons—the Authority is of the opinion that the applicant or each applicant is a fit and proper person to hold a certificate and is of or above the age of 18 years, and
(b) in the case of an application by a corporation:
(i) the Authority is of the opinion that the corporation is a fit and proper person to hold a certificate, and
(ii) each director of the corporation would, if the application had been made by the director, be a fit and proper person to be granted a certificate.
A person may be granted a certificate of approval in respect of one or more of the following classes of approval:
(a) a provider of services related to return to work with the pre-injury employer,
(b) a provider of services related to return to work with a different employer,
(c) a provider of specialist workplace rehabilitation services.
A certificate is to be in the approved form and is to specify:
(a) the name of the person or, in the case of a joint certificate, the names of the persons to whom the certificate is granted, and
(b) the class or classes of approval for which the certificate is granted.
It is a requirement of every certificate of approval that the holder of the certificate must comply with the conditions for approval for workplace rehabilitation providers approved by the Authority that are appropriate for the class or classes of approval for which the certificate is granted, being conditions of which the holder has been notified.
A certificate may be granted subject to such other conditions as may be specified in the certificate.
The Authority may, by notice in writing served on the holder of a certificate, amend or revoke the conditions specified in the certificate or add to those conditions.
Any such amendment, revocation or addition takes effect on and from a date specified in the Authority’s notice, being a date at least 7 days after the notice is served on the holder of the certificate.
The Authority may amend a certificate:
(a) on the application of a person who does not hold a certificate and proposes to provide a workplace rehabilitation service jointly with the holder of a certificate, by adding the name of the person as a joint holder of the certificate, or
(b) on the application of a joint holder of a certificate who ceases to provide workplace rehabilitation services, by deleting the person’s name from the certificate, or
(c) on the application of a holder of a certificate, by amending the specification of the class or classes of approval for which the certificate is granted.
An application under this clause must:
(a) be in the approved form, and
(b) contain such particulars and be accompanied by such documents as may be specified in that form, and
(c) be accompanied by such fee as the Authority may determine.
The Authority is to determine an application under this clause:
(a) by granting the application and amending the certificate accordingly, or
(b) by refusing the application.
If an application referred to in subclause (1) (a) is granted and the certificate is amended by specifying in the certificate the name of the person concerned, that person is taken to be a person to whom the certificate is granted.
If the Authority refuses to grant or amend a certificate of approval, the Authority must as soon as practicable cause notice of the refusal to be served on the applicant.
In the case of a joint application, it is a sufficient compliance with subclause (1) if the notice of refusal is served on any one of the applicants.
The Authority is taken to have refused to grant or amend a certificate (and is taken to have notified the applicant accordingly) if the Authority does not give a decision on an application within 4 months after the date of lodgment of the application.
A certificate of approval remains in force, unless sooner cancelled or surrendered, for such period as may be determined by the Authority and specified in the certificate.
A certificate may be renewed from time to time by the grant of a further certificate.
A holder of a certificate of approval may surrender it by delivering it to the Authority with notice in writing that the certificate is surrendered.
If the Authority is satisfied that a certificate of approval has been lost or destroyed, the Authority may, on payment of such fee as the Authority may determine, issue a duplicate certificate.
The Authority is to cause a register of certificates of approval to be kept, in such form as the Authority determines, and is to cause to be recorded in the register in respect of each certificate:
(a) the matters which by this Regulation are required to be specified in the certificate, and
(b) particulars of any amendment of the certificate, and
(c) particulars of any cancellation, suspension or surrender of the certificate, and
(d) such other matters as the Authority thinks fit.
The Authority may cause to be made such alterations of the register as are necessary to ensure that the register is an accurate record.
The register may be inspected by any person at the office of the Authority during the Authority’s usual office hours and copies of all or any part of the register may be taken on payment of such fee as the Authority may determine.
A person must not, in or in connection with an application for a certificate of approval or amendment of such a certificate, make any statement which the person knows to be false or misleading in a material particular.
Maximum penalty: 20 penalty units.
The Authority may cancel or suspend a certificate of approval if the Authority is satisfied:
(a) that the holder of the certificate has made a statement in or in connection with an application for the certificate or amendment of the certificate that the holder knows to be false or misleading in a material particular, or
(b) that the holder of the certificate has contravened a condition of the certificate, or
(c) that the holder of the certificate has been convicted of an offence involving fraud or dishonesty punishable on conviction by imprisonment for 3 months or more, or
(d) that the holder of the certificate, not being a corporation, has become bankrupt, applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with creditors or made an assignment of remuneration for their benefit, or
(e) that the holder of the certificate, being a corporation:
(i) is in the course of being wound up, or
(ii) is under administration, or
(iii) is a corporation in respect of the property of which a receiver or manager (or other controller within the meaning of the Corporations Act 2001 of the Commonwealth) has been appointed, or
(iv) has entered into a compromise or arrangement with its creditors, or
(f) that the holder of the certificate has not provided workplace rehabilitation services for a continuous period of 3 months or more, or
(g) that the holder of the certificate is for any other reason not a fit and proper person to hold a certificate, or
(h) in the case of a holder of a certificate, being a corporation—that any director of the corporation:
(i) has been convicted of an offence referred to in paragraph (c), or
(ii) for any other reason would not be a fit and proper person to hold a certificate, if the certificate were held by the person.
The grounds referred to in subclause (1) (except paragraph (f)) are taken to exist:
(a) in the case of a joint certificate—if those grounds apply to any holder of that certificate, or
(b) in the case of 2 or more certificates held by persons providing workplace rehabilitation services in partnership—if those grounds apply to any holder of any of those certificates.
Before cancelling or suspending a certificate, the Authority must give the holder of the certificate an opportunity to show cause why the certificate should not be cancelled or suspended on such grounds as are notified to the holder.
The cancellation or suspension of a certificate does not take effect until notice in writing of the cancellation or suspension has been served on the holder of the certificate.
A person must not falsely hold himself or herself out as being the holder of a certificate of approval.
Maximum penalty: 20 penalty units.
For the purposes of section 44 (2) of the 1998 Act, notification to an insurer or the Nominal Insurer by an employer that a worker has received a workplace injury must be given in any of the following ways:
(a) by electronic communication (using a mode of electronic communication approved by the insurer or the Nominal Insurer) providing the information requested by the insurer or the Nominal Insurer,
(b) in writing by completing a notification form approved for the purpose by the insurer or the Nominal Insurer and sending the completed form to the insurer or the Nominal Insurer by post or facsimile transmission at the address or facsimile number indicated on the form, or by completing and lodging the form in person at an office of the insurer or the Nominal Insurer,
(c) by telephone to the insurer or the Nominal Insurer, giving such information as may be requested of the caller.
(Repealed)
An employer who gives a notification under section 44 (2) of the 1998 Act must make and keep for at least 5 years after the notification is given:
(a) a record of the date, time, place and nature of the injury to which the notification relates, and
(b) a record of the date on which and the way in which the notification was given, and
(c) a record of any acknowledgement (such as a receipt number) given to the employer by the insurer or the Nominal Insurer as evidence of receipt of the notification.
An entry in the register of injuries kept under section 256 of the 1998 Act is a sufficient record of an injury for the purposes of this clause. The record of an acknowledgement of the notification can also be made and kept as part of the register of injuries.
An employer must make the records kept under subclause (3) available for inspection in accordance with, and in any event no later than 7 days after the date of, a request by:
(a) an authorised officer, or
(b) if any employee of the employer is a member of an industrial organisation of employees—an authorised employee representative of that organisation.
In this clause:
Maximum penalty: 20 penalty units.
A person who fails to comply with section 44 (2) of the 1998 Act is guilty of an offence.
Maximum penalty: 20 penalty units.
If an injury is a loss, or further loss, of hearing that is of such a nature as to be caused by a gradual process (including boilermaker’s deafness and any deafness of a similar origin):
(a) notice of injury is to be given by the worker under section 62 of the 1998 Act:
(i) if the worker is employed by an employer in an employment to the nature of which the injury is due to that employer, or
(ii) if the worker is not so employed, to the last employer by whom the employer was employed in an employment to the nature of which the injury is due, and
(b) the notice must be in writing and be in the approved form.
Any forms issued by insurers and self-insurers for the giving of notice by workers of an injury referred to in subclause (1) must also contain such information (if any) as the Authority may from time to time approve and notify to insurers and self-insurers.
The notice given to a claimant under section 74 of the 1998 Act must contain the following:
(a) in relation to a coal miner matter:
(i) a statement to the effect that the worker can refer the dispute for determination by the District Court, and
(ii) if the insurer has referred or proposes to refer the dispute for determination by the District Court, a statement to that effect specifying the date of referral or proposed referral, and
(iii) a statement to the effect that the matters that may be referred to the District Court are limited to matters notified in the notice, in a notice after a further review in correspondence prior to any such referral concerning an offer of settlement or in a request for a further review, except with the leave of the District Court,
(b) in relation to a work injury damages dispute:
(i) a statement to the effect that, before a claimant can commence court proceedings, the claimant must firstly serve a pre-filing statement (in accordance with section 315 of the 1998 Act) on the defendant and secondly refer the claim to the Commission for mediation (in accordance with section 318A of the 1998 Act), and
(ii) a statement to the effect that the claimant is not entitled to raise matters in court proceedings that are materially different from those contained in the pre-filing statement, except with the leave of the court,
(c) a statement identifying all the reports and documents submitted by the worker in making the claim for compensation,
(d) a statement identifying all the reports of the type to which clause 46 applies that are relevant to the decision, whether or not the reports support the reasons for the decision,
(e) a statement advising that a copy of a report required to be provided by the insurer under clause 46 (3) (except as provided by clause 46 (5) or (6)) accompanies the notice,
(f) advice as to the procedure for requesting a review of the decision,
(g) a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, from a lawyer or from any Workers Compensation Claims Assistance Service established by the Authority,
(h) the street address and the email address of the Registrar of the Commission or the Registrar of the District Court, as appropriate.
Section 74 of the 1998 Act requires the notice to also include a concise and readily understandable statement of the reason the insurer disputes liability and of the issues relevant to the decision (indicating, in the case of a claim for compensation, any provision of the workers compensation legislation on which the insurer relies to dispute liability).
A person who fails to comply with section 74 of the 1998 Act in respect of a claim for compensation is guilty of an offence.
Maximum penalty: 20 penalty units.
It is a defence to a prosecution for an offence of failing to comply with section 74 (2B) of the 1998 Act if it is established that the notice complied with guidelines issued by the Authority as to how the notice concerned was to be expressed.
For the purposes of section 231 (1) of the 1998 Act:
(a) the summary of the requirements of that Act with regard to the giving of notice of injuries and the making of claims is to be in the approved form, and
(b) the other information required to be posted up in accordance with that section is the other information contained in the approved form.
An approved form that ceases to be an approved form (as a result of the amendment or substitution of an approved form) continues to be an approved form for the purposes of a notice posted up under section 231 of the 1998 Act that was in that form immediately before it ceased to be an approved form, but only until the earlier of:
(a) the renewal or replacement of the notice, or
(b) 12 months after the form ceases to be an approved form.
The register of injuries required to be kept under section 256 of the 1998 Act may be kept in written or electronic form.
The register of injuries may be kept in electronic form only if the employer provides education, training and facilities to ensure that workers are able to access the register.
The particulars to be entered in the register of injuries are the following:
(a) the name of the injured worker,
(b) the worker’s address,
(c) the worker’s age at the time of injury,
(d) the worker’s occupation at the time of injury,
(e) the industry in which the worker was engaged at the time of injury,
(f) the time and date (or deemed date) of injury,
(g) the nature of the injury,
(h) the cause of the injury.
This clause applies to the following types of reports that an employer or insurer has in the employer’s or insurer’s possession:
(a) medical reports, including medical reports provided pursuant to section 119 of the 1998 Act (Medical examination of workers at direction of employer),
(b) medical certificates,
(c) clinical notes,
(d) investigators’ reports,
(e) workplace rehabilitation providers’ reports,
(f) health service providers’ reports,
(g) reports of assessments under section 40A (Assessment of incapacitated worker’s ability to earn) of the 1987 Act,
(h) reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made,
(i) wage details required to be supplied under section 43 (2) of the 1987 Act where a decision has been made to decline payment of, or reduce the amount of, weekly benefits, but only if such details have not already been supplied to the worker.
This clause applies to the following decisions of an employer or insurer relating to an injured worker:
(a) a decision to dispute liability in respect of a claim, or any aspect of a claim (in circumstances requiring the insurer to give the worker a notice and reasons under section 74 of the 1998 Act),
(b) a decision to discontinue payment, or to reduce the amount of weekly benefits (in circumstances requiring the insurer to give the worker a notice of intention under section 54 of the 1987 Act),
(c) a decision on the review under section 287A of the 1998 Act of a decision described in paragraph (a) or (b) that confirms the original decision.
If an employer or insurer makes a decision to which this clause applies, the employer or insurer must provide a copy of any relevant report to which this clause applies to the worker, as an attachment to a notice under section 74 of the 1998 Act, section 54 of the 1987 Act or section 287A of the 1998 Act, as the case may be, except where the report has already been supplied to the worker and that report is identified in a statement under clause 14 (1) (c) or 43 (1) (d).
The obligation in this clause to provide a copy of a report applies to any report that is relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reasons for the decision.
If the employer or insurer is of the opinion that supplying a worker with a copy of a report would pose a serious threat to the life or health of the worker or any other person, the employer or insurer may instead supply the report:
(a) in the case of a medical report, medical certificate or clinical notes—to a medical practitioner nominated by the worker for that purpose, or
(b) in any other case—to a legal practitioner representing the worker.
If, on the application of an employer or insurer, the Authority is satisfied that supplying the worker with a copy of the report would pose a serious threat to the life or health of the worker or any other person and that supplying the report as provided by this clause would not be appropriate, the Authority may:
(a) direct that the report be supplied to such other persons as the Authority considers appropriate, or
(b) make such other directions as the Authority thinks fit.
For the purposes of section 297 (3) (e) of the 1998 Act, it is not to be presumed that an interim payment direction for weekly payments of compensation is warranted in circumstances where the insurer has given the worker notice under section 74 of the 1998 Act (Insurers to give notice and reasons when liability disputed).
In this Part:
In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
In this clause:
(a) means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and
(b) includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act, and
(c) does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.
Despite clauses 49 and 51, a medical report other than the original report (
(a) it has the purpose of clarifying the original report, for example, where it can be shown that there has been some omission in relation to the material originally provided that could lead to an opinion in the original report being expressed on the basis of inaccurate or incomplete information and it does not go outside the parameters of the original report, but merely confirms, modifies or retracts an opinion expressed in the original report, or
(b) it has the purpose of updating the original report by confirming, modifying or retracting an opinion expressed in the original report, or
(c) it has the purpose of addressing issues omitted from the original report, or
(d) it has the purpose of addressing an opinion in the other party’s medical report.
A supplementary report can be provided as an addendum to the original report and in such a case the original report together with that addendum constitute the report referred to in clauses 49 and 51.
A supplementary report must have been provided by the medical practitioner who provided the original report except when the medical practitioner has ceased (permanently or temporarily) to practise in the specialty concerned, in which case the supplementary report must be provided by another medical practitioner of the same specialty.
A forensic medical report must be disclosed to an approved medical specialist in connection with a claim or a work injury damages threshold dispute if any of the following occurs:
(a) the report was admitted in proceedings on the claim or dispute,
(b) no decision has been made as to whether or not the report is to be admitted, and:
(i) the report was the report nominated by the claimant or respondent as the report that the claimant or respondent concerned would introduce into evidence in proceedings on the claim, or
(ii) the report was the sole report in the particular specialty concerned that was lodged in relation to the claim by the claimant or respondent, as the case may be,
(c) the approved medical specialist calls for the production of the report under section 324 (1) (b) of the 1998 Act.
A forensic medical report is not to be disclosed to an approved medical specialist in connection with a claim or a work injury damages threshold dispute otherwise than in accordance with this clause.
Nothing in this clause permits more than one forensic medical report of the type referred to in clause 49 to be disclosed to an approved medical specialist on behalf of a party to proceedings.
In this clause:
(a) means a report from a specialist who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of a claim or dispute, and
(b) includes a medical report provided by a medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act.
A party to proceedings on a claim is not entitled to be paid for or recover the cost of a medical report in connection with the claim unless:
(a) the report has been admitted into those proceedings on behalf of the party, or
(b) the report has been disclosed to an approved medical specialist.
A party to a claim where no proceedings have been taken is not entitled to be paid for or recover the cost of a medical report in connection with the claim unless the report has been served on another party, and:
(a) the report would be admissible in proceedings on behalf of the party, or
(b) the report could be disclosed to an approved medical specialist.
In this clause:
(a) a reference to a claim includes a reference to an initial notification of injury (as defined in Part 3 of Chapter 7 of the 1998 Act), and
(b) a reference to proceedings on a claim includes a reference to proceedings in respect of the payment of provisional weekly payments of compensation under the 1998 Act.
In this clause:
This Part does not affect any entitlement of an injured worker to be paid for or recover the cost of obtaining medical treatment.
This Part does not apply in respect of a medical report provided by an approved medical specialist under Part 7 of Chapter 7 (Medical assessment) of the 1998 Act in respect of the assessment of a new claim within the meaning of that Chapter.
The amount of $175 is prescribed as the administration fee payable under section 155AA (5) of the 1987 Act.
The Nominal Insurer may serve a notice in writing on an employer to whom section 155AA (5) of the 1987 Act applies notifying the employer that the administration fee referred to in that subsection is due and payable.
The administration fee referred to in subclause (2) must be paid by the employer within one month of the service of the notice.
A late payment fee calculated at the prescribed rate (within the meaning of section 172 of the 1987 Act) applicable to a policy of insurance issued or renewed on the date that notice was served is payable if an administration fee is not paid within the one month period referred to in subclause (3).
The Authority may waive payment (either in full or in part) of an administration fee or late payment fee payable under section 155AA of the 1987 Act.
The Nominal Insurer is to pay any administration fees and late payment fees it has received under section 155AA of the 1987 Act into the Insurance Fund. Administration fees paid into the Insurance Fund are to be treated as premiums payable under policies of insurance.
For the purposes of section 159 of the 1987 Act, a policy of insurance (except one to which subclause (2) applies):
(a) must contain the provisions specified in Schedule 3, and
(b) may contain any other provisions, but only if those provisions have been agreed on by the insurer and employer concerned and approved by the Authority.
A policy of insurance issued or renewed so as to take effect before 31 December 1995 must contain the provisions that were specified in Form 7 in the Workers Compensation (General) Regulation 1987 immediately before its repeal, except that:
(a) the words “independently of this Act (being a liability under a law of New South Wales)” in the third paragraph of the Form are to be deleted and the words “independently of this Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another State, a Territory or the Commonwealth or a liability arising under the law of another country)” are to be inserted instead, and
(b) such a policy may contain other provisions, but only if those provisions have been agreed on by the insurer and employer concerned and approved by the Authority.
A weekly compensation claim made in respect of a worker who receives an injury in the circumstances referred to in section 11 (Recess claims) of the 1987 Act is prescribed for the purposes of section 160 (8) of the 1987 Act.
Exempt employer policies (within the meaning of section 155AA of the 1987 Act) are exempt from section 160 of the 1987 Act.
An employer who requests an insurer to provide a certificate of currency with respect to a policy of insurance must provide the insurer with a statement in a approved form that contains a reasonable estimate of the wages that will be payable during the current period of insurance to workers employed by the employer.
An insurer may refuse to issue the requested certificate of currency until the employer complies with this clause.
For the purposes of the definition of
This clause applies only in relation to a certificate of currency issued on or after the commencement of this clause.
Any work carried out before 1 July 2004 under a contract for the carrying out of work on a farm on which a farmer engages in a farming operation is exempt from the operation of section 175B of the 1987 Act if the farmer is the principal contractor and the work is an aspect of the work of the farming operation (and is not an aspect of the work of any other business undertaking of the farmer).
In this clause:
For the purposes of section 175D (2) (c) (ii) of the 1987 Act, the amount of $750,000 is prescribed in relation to a policy of insurance issued at or after 4 pm on 30 June 2014.
The following employers are excluded from the operation of Division 2A (Grouping of employers for insurance purposes) of Part 7 of the 1987 Act:
(a) an employer who is insured with a specialised insurer,
(b) an employer who is insured where the policy of insurance relates only to private household domestic workers.
When one or more subsidiaries of the holder of a licence as a self-insurer under the 1987 Act is endorsed on the licence, each of those endorsed subsidiaries and the licence holder are
The holder of a licence as a group self-insurer may for the purposes of this Part, by notice in writing to the Authority from time to time, designate any one or more of the group self-insurers covered by the licence as
Except where otherwise expressly provided, this Part provides for the modification of provisions of Chapter 3 of the 1998 Act in their application to the following self-insurers:
(a) a self-insurer who is a Government employer covered for the time being by the Government’s managed fund scheme,
(b) a group self-insurer for whom there is a designated insurer.
Sections 43, 44, 45, 47, 52 and 57 of the 1998 Act are to be read as if:
(a) a reference to
insurer were, in the case of a self-insurer who is a Government employer covered for the time being by the Government’s managed fund scheme, a reference to the Self Insurance Corporation, and
(b) a reference to
insurer were, in the case of a self-insurer for whom there is a designated insurer, a reference to that designated insurer, and(c) the Self Insurance Corporation were the insurer of each employer who is a Government employer covered for the time being by the Government’s managed fund scheme, and
(d) the designated insurer for a group self-insurer were the insurer of the group self-insurer.
A reference in sections 50 and 58 of the 1998 Act to
(a) to the Self Insurance Corporation, when the insurer is a Government employer covered for the time being by the Government’s managed fund scheme, and
(b) when the insurer is a group self-insurer for whom there is a designated insurer, to that designated insurer.
The following modifications are to be made to the 1998 Act:
(a) section 43 (3)—omit “This subsection does not apply to a self-insurer.”,
(b) section 43 (4)—omit “(except when the insurer is a self-insurer)”,
(c) section 43 (5)—omit “This subsection does not apply when the employer is a self-insurer.”,
(d) omit section 44 (4),
(e) section 45 (2)—omit “(except when the insurer is a self-insurer)”,
(f) section 45 (5)—omit “This subsection does not apply when the insurer is a self-insurer.”,
(g) omit section 46 (3).
Section 45 (1) of the 1998 Act is replaced with the following subsection:
When it appears that a workplace injury is a significant injury, an injury management plan must be established for the injured worker by:
(a) if the self-insurer who is or may be liable to pay compensation to the injured worker is a Government employer covered for the time being by the Government’s managed fund scheme—the Self Insurance Corporation, or
(b) if the insurer who is or may be liable to pay compensation to the injured worker is a group self-insurer for whom there is a designated insurer—that designated insurer.
A reference in section 55 of the 1998 Act to
It is a condition of a licence as a self-insurer that the holder of the licence must ensure that any subsidiary of the holder endorsed on the licence complies with the subsidiary’s obligations under Chapter 3 of the 1998 Act.
In this Part:
For the purposes of the contribution payable by an insurer under section 39 of the 1998 Act for a financial year,
For the 2016–2017 financial year, the prescribed circumstances referred to in the definition of
The amount defined as deemed premium income in section 37 of the 1998 Act in relation to the contribution payable by a self-insurer for any period during a financial year does not include:
(a) any amount attributable to the application of any factor other than the basic tariff premium that would have been payable as referred to in that definition in respect of that period, and
(b) any amount attributable to any GST that would have been payable in relation to the premiums on policies of insurance that the self-insurer would otherwise have been required to obtain under the 1987 Act had the self-insurer not been a self-insurer.
Subclause (2) does not apply to any financial year to which clause 85 applies.
(Repealed)
For the purposes of clause 17 of Schedule 1 to the 1998 Act, it is declared that persons within a class specified in Column 2 of Schedule 4 to this Regulation are ministers of religion of the religious body or organisation specified opposite the class in Column 1 of Schedule 4 and the employer of those persons is the person specified opposite the class in Column 3 of Schedule 4.
See also clause 18 of Schedule 1 to the 1998 Act which provides that if a policy of insurance covers a minister of religion, the minister of religion is taken to be a worker and the person insured under the policy is taken to be the minister’s employer.
Expressions used in this Part have the same meanings as in Division 7 of Part 7 of the 1987 Act.
For the purposes of section 228 (1) of the 1987 Act, the financial year commencing 1 July 1989 and any subsequent financial year are prescribed.
The contribution payable by an insurer under section 228 of the 1987 Act in respect of any financial year is payable:
(a) except as provided by paragraph (b), in quarterly instalments (each being equal to one-fourth of the contribution payable) due on the last day of each quarter of the financial year, or
(b) in such other instalments and within such other time as may be determined by the Authority and specified in a notice to the insurer.
If the Authority has determined an amount under section 228 (1) of the 1987 Act in respect of a financial year, it may subsequently determine under that provision a further amount to be contributed to the Guarantee Fund in respect of that year, being an amount that it considers is necessary:
(a) to satisfy, during that financial year, claims, judgments and awards arising from or relating to policies of insurance issued by insolvent insurers, and
(b) to provide for the payment of any other amounts to be paid under Division 7 of Part 7 of the 1987 Act from the Guarantee Fund during that financial year.
Section 228 of the 1987 Act applies to and in respect of the payment of any such further contribution.
For the purpose of determining the amount of any contribution (or further contribution) to the Guarantee Fund, the Authority is entitled to rely on an estimate determined by it of the amount required to be contributed by insurers to the Workers Compensation Operational Fund.
If the Authority determines that any change in that estimate is appropriate, it is to re-determine the contributions (or further contributions) of insurers to the Guarantee Fund, and the relevant amounts become payable by, or repayable to, insurers.
For the purposes of section 246 of the 1998 Act:
(a) each of the following offences is declared to be a penalty notice offence:
(i) an offence created by a provision of the 1987 Act specified in Column 1 of Part 1 of Schedule 5,
(ii) an offence created by a provision of the 1998 Act specified in Column 1 of Part 2 of Schedule 5,
(iii) an offence created by a provision of this Regulation specified in Column 1 of Part 3 of Schedule 5, and
(b) the prescribed penalty for such an offence is the amount specified opposite it in Column 2 of Schedule 5, and
(c) the following persons are declared to be authorised officers:
(i) each officer of the Authority authorised by the Authority for the purposes of section 246 of the 1998 Act,
(ii) each inspector appointed under the Work Health and Safety Act 2011,
(iii) each officer of the Authority authorised by the Authority for the purposes of section 238 of the 1998 Act.
Expressions used in this Part have the same meaning as in Division 8 of Part 2 of Chapter 4 of the 1998 Act. An
Each of the following activities is considered to constitute acting as agent for a person in relation to a claim:
(a) advising the person with respect to the making of a claim,
(b) assisting the person to complete or prepare, or completing or preparing on behalf of the person, any form, correspondence or other document concerning a claim,
(c) making arrangements for any test or medical examination to determine the person’s entitlement to compensation,
(d) arranging referral of the person to a lawyer for the performance of legal work in connection with a claim.
A reference to a claim includes a reference to a prospective claim (whether or not the claim is ever actually made).
In this Part:
(a) publish in a newspaper, magazine, journal, periodical, directory or other printed publication, or
(b) disseminate by means of the exhibition or broadcast of a photograph, slide, film, video recording, audio recording or other recording of images or sound, either as a public exhibition or broadcast or as an exhibition or broadcast to persons attending a place for the purpose of receiving professional advice, treatment or assistance, or
(c) broadcast by radio or television, or
(d) display on an Internet website or otherwise publicly disseminate by means of the Internet, or
(e) publicly exhibit in, on, over or under any building, vehicle or place or in the air in view of persons in or on any street or public place, or
(f) display on any document (including a business card or letterhead) gratuitously sent or gratuitously delivered to any person or thrown or left on any premises or on any vehicle, or
(g) display on any document provided to a person as a receipt or record in respect of a transaction or bet.
An agent must not publish or cause or permit to be published an advertisement that promotes the availability or use of an agent to provide agent services if the advertisement includes any reference to or depiction of any of the following:
(a) work injury,
(b) any circumstance in which work injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of work injury, or any connection to or association with work injury or a cause of work injury,
(c) a
work injury service (that is, any service provided by an agent that relates to recovery of money, or any entitlement to recover money, in respect of work injury).
Maximum penalty: 200 penalty units.
(Repealed)
This Division does not prevent the publication of an advertisement that advertises an agent as being a specialist or offering specialist services, but only if the advertisement is published by means of:
(a) an entry in a practitioner directory that states only the name and contact details of the agent and any area of practice or specialty of the agent, or
(b) a sign displayed at a place of business of the agent that states only the name and contact details of the agent and any specialty of the agent, or
(c) an advertisement on an Internet website operated by the agent the publication of which would be prevented under this Division solely because it refers to work injury or work injury services in a statement of specialty of the agent.
In this clause:
This Division does not prevent the publication of any advertisement:
(a) to any person who is already a client of the agent (and to no other person), or
(b) to any person on the premises of a place of business of the agent, but only if the advertisement cannot be seen from outside those premises, or
(c) in accordance with any order by a court, or
(d), (e) (Repealed)
(f) to the extent that it relates only to legal education and is published to members of the legal profession by a person in the ordinary course of the person’s business or functions as a provider of legal education, or
(g) by an industrial organisation (within the meaning of the Industrial Relations Act 1996) if the advertisement (or so much of it as would otherwise contravene clause 79) relates only to the provision of advice or services by that organisation and states only the name and contact details of the industrial organisation along with a description of the services that it provides, or
(h) that is required to be published by or under a written law of the State.
For the purposes of this Division, evidence that a person who is an employee of an agent, or a person otherwise exercising functions in the agent’s practice, published or caused to be published an advertisement is evidence (in the absence of evidence to the contrary) that the agent caused or permitted the publication of the advertisement.
For the purposes of this Division, an advertisement is taken to have been published or caused to be published by an agent if:
(a) the advertisement advertises or otherwise promotes the availability or use of the agent (either by name or by reference to a business name under which the agent practises or carries on business) for the provision of agent services in connection with the recovery of money, or an entitlement to recover money, in respect of work injury, or
(b) the agent is a party to an agreement, understanding or other arrangement with the person who published the advertisement or caused it to be published that expressly or impliedly provides for the referral of persons to the agent for the provision of agent services in connection with the recovery of money, or an entitlement to recover money, in respect of work injury, or
(c) the agent is a party to an agreement, understanding or other arrangement with the person who published the advertisement or caused it to be published that expressly or impliedly provides for the person to advertise on behalf of the agent.
This clause does not apply to an advertisement if the agent proves that the agent took all reasonable steps to prevent the advertisement being published.
(Repealed)
This Division does not apply to conduct of an agent.
In this Division:
(a) work injury, or
(b) any circumstance in which work injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of work injury, or any connection to or association with work injury or a cause of work injury.
A person must not publish or cause or permit to be published a work injury advertisement if the advertisement:
(a) advertises or otherwise promotes the availability or use of an agent (whether or not a particular agent) to provide agent services, whether or not that is its purpose or only purpose and whether or not that is its only effect, or
(b) includes any reference to or depiction of the recovery of money or a claim for money, or any entitlement to recover money or claim money, in respect of work injury.
Maximum penalty: 200 penalty units.
A person must not publish or cause or permit to be published a work injury advertisement if the person is engaged in a practice involving, or is a party to an agreement, understanding or other arrangement that provides for, the referral of persons to one or more agents for the provision of agent services in connection with the recovery of money, or an entitlement to recover money, in respect of work injury.
Maximum penalty: 200 penalty units.
A person who is a member of a partnership or a director or officer of a body corporate must not expressly, tacitly or impliedly authorise or permit a contravention of subclause (1) or (2) by the partnership or body corporate or by an employee or agent of the partnership or body corporate on behalf of the partnership or body corporate.
Maximum penalty: 200 penalty units.
(Repealed)
This Division does not prevent the publication of an advertisement that advertises an agent as being a specialist or offering specialist services, but only if the advertisement is published by means of:
(a) an entry in a practitioner directory that states only the name and contact details of the agent and any area of practice or specialty of the agent, or
(b) a sign displayed at a place of business of the agent that states only the name and contact details of the agent and any specialty of the agent, or
(c) an advertisement on an Internet website operated on behalf of the agent the publication of which would be prevented under this Division solely because it refers to work injury or agent services in a statement of specialty of the agent.
In this clause:
This Division does not apply to the publication of an advertisement:
(a) in accordance with any order by a court, or
(b) (Repealed)
(c) to the extent that it relates only to legal education and is published to members of the legal profession by a person in the ordinary course of the person’s business or functions as a provider of legal education, or
(d) by an industrial organisation (within the meaning of the Industrial Relations Act 1996) if the advertisement (or so much of it as would otherwise contravene clause 88) relates only to the provision of advice or services by that organisation and states only the name and contact details of the industrial organisation along with a description of the services that it provides, or
(e) by a person in the ordinary course of the person’s business as an insurer or insurance agent or broker, to the extent only that it includes a reference to or depiction of the recovery of money under a policy of insurance, or
(f) that is required to be published by or under a written law of the State.
A contravention of clause 88 by a person who publishes an advertisement in the ordinary course of the person’s business as a publisher does not constitute an offence under this Division.
(Repealed)
In this Part, and in Schedules 6 and 7:
Section 332 (2) of the 1998 Act provides that expressions used in Division 1 of Part 8 of Chapter 7 of that Act (and consequently expressions used in this Part) have the same meanings as they have in Part 3.2 of the Legal Profession Act 2004, except as provided by section 332 (Definitions) of the 1998 Act. Under section 302 of the Legal Profession Act 2004, costs includes fees, charges, disbursements, expenses and remuneration.
For the purposes of the application of the weekly payments amendments to a seriously injured worker whose claim for compensation was made before 1 October 2012, the worker’s pre-injury average weekly earnings are deemed to be equal to the transitional amount whether or not the worker is an existing recipient of weekly payments.
If a claim for compensation in respect of a worker’s injury was made before 1 October 2012, the weekly payments amendments and the relevant transitional arrangements do not apply to the compensation payable in respect of the injury until 1 January 2013.
In the case of a claim made on or after 1 October 2012, the weekly payments amendments apply to the claim from when the claim is made.
This clause does not apply to a seriously injured worker.
In this clause:
For the purposes of the application of section 39 (Cessation of weekly payments after 5 years) of the 1987 Act, as substituted by the 2012 amending Act, in respect of a claim made before 1 October 2012, no regard is to be had to any weekly payment of compensation paid or payable to the worker before 1 January 2013 (for the purpose of determining the aggregate period in respect of which a weekly payment has been paid or is payable to the worker).
Section 39 limits the payment of weekly payments of compensation to a period of 5 years. This clause ensures that for claims made before 1 October 2012, weekly payments made before 1 January 2013 will not be counted towards the 5 years.
In the application of section 59A (Limit on payment of compensation) of the 1987 Act in respect of a claim for compensation made before 1 October 2012:
(a) the claim is deemed to have been made immediately before 1 January 2013, and
(b) no regard is to be had to any weekly payment of compensation paid or payable to the worker before 1 January 2013 (for the purpose of determining when a worker ceased to be entitled to weekly payments of compensation).
Section 59A limits the payment of compensation to a period of 12 months after a claim for compensation is made or 12 months after weekly payments of compensation cease. This clause ensures that for claims made before 1 October 2012 the 12 month period will commence no earlier than 1 January 2013.
Compensation is payable in accordance with Division 3 of Part 3 of the Act to an existing injured worker for any of the following treatments, services or assistance if approved by the insurer before 1 January 2014:
(a) treatment by a medical practitioner, a registered dentist or a dental prosthetist,
(b) hospital treatment and any related workplace rehabilitation services,
(c) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(d) the provision of artificial members, hearing aids, hearing aid batteries, crutches, spectacles, eyes or teeth and other artificial aids.
This clause has effect despite any provision of section 59A of the Act but does not affect the operation of section 151A of the Act.
In this clause:
Despite the substitution of section 74 of the 1998 Act by the 2012 amending Act, that section as in force before 1 October 2012 continues to apply to a notice given under that section before 1 January 2013 in respect of a claim for compensation made before 1 October 2012.
A review by the Independent Review Officer under section 44 of the 1987 Act of a work capacity decision operates to stay the decision but only if the application for review is made before 1 April 2013.
The decision is stayed from the time the application for review is made until the earlier of:
(a) the date the worker is notified of the findings of the review (or the application for review is withdrawn), or
(b) 30 June 2013.
Section 44 (4) of the 1987 Act is deemed to be amended to the extent necessary to give effect to this clause.
Division 3 (Special provisions for costs in compensation and damages assessment matters) of Part 8 of the 1998 Act continues to apply (as in force before the amendment of that Division by the 2012 amending Act) to costs in relation to a claim for compensation made before 1 October 2012 if proceedings on the claim are commenced in the Commission before 31 March 2013.
A legal practitioner is not entitled to be paid or recover any amount for a legal service provided to an insurer in connection with an internal or other review under section 44 of the 1987 Act in relation to a work capacity decision of the insurer.
An amendment made by Schedule 3 to the 2012 amending Act extends to a claim for damages in respect of harm arising from mental or nervous shock suffered before 19 June 2012 but does not apply to a claim for damages if the claimant commenced court proceedings for the recovery of those damages before 19 June 2012.
The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act.
Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).
A further lump sum compensation claim may be made in respect of an existing impairment.
Only one further lump sum compensation claim can be made in respect of the existing impairment.
Despite section 66 (1) of the 1987 Act, the degree of permanent impairment in respect of which the further lump sum compensation claim is made is not required to be greater than 10%.
For the purposes of subclauses (1) and (2):
(a) a further lump sum compensation claim made, and not withdrawn or otherwise finally dealt with, before the commencement of subclause (1) is to continue and be dealt with as if section 66 (1A) of the 1987 Act had never been enacted, and
(b) no regard is to be had to any further lump sum compensation claim made in respect of the existing impairment:
(i) that was withdrawn or otherwise finally dealt with before the commencement of subclause (1), and
(ii) in respect of which no compensation has been paid, and
(c) section 322A of the 1998 Act does not operate to prevent an assessment being made under section 322 of that Act for the purposes of a further lump sum compensation claim.
The following provisions are to be read subject to this clause:
(a) section 66 of, and clause 15 of Part 19H of Schedule 6 to, the 1987 Act,
(b) section 322A of the 1998 Act,
(c) clauses 11 and 19 of this Schedule.
In this clause:
Part 3 of Chapter 3 of the 1998 Act applies only in relation to a contravention of Chapter 3 of the 1998 Act that occurs after the commencement of that Part.
The fact that a worker’s injury was received before the commencement of the 2001 lump sum compensation amendments does not prevent the degree of permanent impairment of the injured worker from being assessed for the purpose of determining whether the worker is a seriously injured worker under Division 2 of Part 3 of the 1987 Act.
In this clause, the
The substitution of Parts 2 and 3 of Schedule 6 (Maximum costs—compensation matters) to this Regulation by the Workers Compensation Amendment (Transitional) Regulation 2012 does not apply in respect of legal services provided before 1 October 2012.
The amount of a weekly payment of compensation payable under Division 2 of Part 3 of the 1987 Act in respect of any period of incapacity that resulted from an injury received before the commencement of that Division is be determined as if the weekly payments amendments had not been made.
Section 38 (3) (a) of the 1987 Act does not apply in respect of a claim for compensation made before 1 October 2012 if the second entitlement period for the claim expires before, or less than 1 month after, the weekly payments amendments first apply in respect of the claim.
Section 38 (3) (a) requires a worker to apply before the end of the second entitlement period for the continuation of weekly payments after the second entitlement period. Subclause (1) removes the need for such an application if the second entitlement period ends less than 1 month before section 38 (3) (a) would become applicable to the claim.
Section 38 (3) (a) of the 1987 Act does not apply in respect of a worker who is an existing recipient of weekly payments if:
(a) the second entitlement period for the claim expires less than 1 month after the insurer notifies the worker (as required by the WorkCover Guidelines) of the requirement under section 38 of the 1987 Act that the worker must apply to the insurer in writing before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, or
(b) the insurer fails to notify the worker of that requirement as required by the WorkCover Guidelines.
A worker who, by virtue of subclause (1) or (2), is not required to apply before the end of the second entitlement period for continuation of weekly payments after the second entitlement period is, within 18 months of being assessed as having current work capacity, required to apply to the insurer in writing (in the form approved by the Authority) for continuation of weekly payments in order for the worker to continue to be entitled to weekly payments compensation.
A period of 35 months (expiring at the end of 31 August 2015) is prescribed for the purposes of clause 8 (2) of Part 19H of Schedule 6 to the 1987 Act.
This clause makes 35 months the period within which an insurer must conduct a work capacity assessment of an existing recipient of weekly payments (instead of the period of 12 months currently required by clause 8 (2) of Part 19H of Schedule 6 to the 1987 Act).
On and from 1 September 2015, the weekly payments amendments apply to the compensation payable under Division 2 of Part 3 of the 1987 Act (in respect of any period of incapacity occurring on and after that date) to an existing recipient of weekly payments in respect of whom a work capacity assessment has not been conducted before that date.
For the purposes of the application under this clause of the weekly payments amendments to an existing recipient of weekly payments who is in receipt of weekly payments of compensation immediately before 1 September 2015, the worker is taken (until a work capacity assessment is conducted in respect of the worker) to have been assessed by the insurer as having no current work capacity.
Section 69A of the 1987 Act (as in force before its repeal by the 2012 amending Act) continues to apply, despite its repeal, to a claim for compensation made on or after 19 June 2012 for loss of hearing resulting from an injury received before 1 January 2002.
In the application of section 66 (1A) of the 1987 Act to a claim resulting from an injury received before 1 January 2002:
(a) a reference in that subsection to permanent impairment compensation is taken to be a reference to lump sum compensation payable under Division 4 of Part 3 of the 1987 Act (as in force immediately before 1 January 2002), and
(b) a reference in that subsection to permanent impairment is taken to be a reference to an injury of a kind to which any such lump sum compensation applies.
Section 66 (1A) of the 1987 Act is deemed to be amended to the extent necessary to give effect to this clause.
An existing recipient of weekly payments who has an entitlement arising under clause 9 (2) or 11 of Part 19H of Schedule 6 to the 1987 Act ceases to have that entitlement if, at any time after the commencement of the weekly payments amendments:
(a) the worker ceases to be entitled to weekly payments of compensation, or
(b) the worker no longer meets the criteria to be paid weekly payments of compensation under the provisions of Division 2 of Part 3 of the 1987 Act (as in force immediately before the commencement of the weekly payments amendments) in respect of which weekly payments of compensation were paid to the worker.
(Repealed)
On the expiration of a period of 3 months after an insurer makes a work capacity decision arising from the first work capacity assessment (as required by Division 2 of Part 19H of Schedule 6 to the 1987 Act) of an existing recipient of weekly payments, the weekly payments amendments apply to the compensation payable under Division 2 of Part 3 of the 1987 Act to the worker in respect of any period of incapacity after the expiration of that period.
Clause 9 (1) of Part 19H of Schedule 6 to the 1987 Act provides that the weekly payments amendments apply to an existing recipient of weekly payments 3 months after an insurer first conducts a work capacity assessment of the worker. Subclause (1) provides instead for the amendments to apply to such a worker 3 months after the insurer makes a work capacity decision in respect of the worker.
However, if, in the case of an existing recipient of weekly payments, the worker returns to work before the expiration of the 3-month period referred to in subclause (1), the weekly payments amendments apply, as from the date on which the worker returns to work, to the compensation payable under Division 2 of Part 3 of the 1987 Act to the worker in respect of any period of incapacity after that return to work.
An insurer must, for the purposes of Division 2 of Part 19H of Schedule 6 to the 1987 Act, make a work capacity decision in respect of an existing recipient of weekly payments as soon as practicable after the first work capacity assessment of the worker is conducted by the insurer as required by that Division.
An existing recipient of weekly payments who reaches the retiring age (within the meaning of section 52 of the 1987 Act) on or after 1 October 2012 but before 1 January 2013 is, subject to meeting the requirements under Subdivision 2 of Division 2 of Part 3 of the 1987 Act, entitled to 12 months’ weekly payments from the date on which the person reaches that age.
In this Part:
Words and expressions used in this Part have the same meaning as in Part 19H of Schedule 6 to the 1987 Act.
The provisions of Part 19H of Schedule 6 to the 1987 Act and Part 1 of this Schedule are deemed to be amended to the extent necessary to give effect to this Part.
This Part takes effect on and from 1 October 2012.
The amendment made to section 52 of the 1987 Act by the 2012 amending Act does not apply in respect of an existing claim.
An existing claim is exempt from the operation of section 59A (Limit on payment of compensation) of the 1987 Act in respect of the following compensation until the injured worker reaches retiring age:
(a) compensation payable to an injured worker under Division 3 of Part 3 of the 1987 Act if the worker’s injury has resulted in permanent impairment of greater than 20%,
(b) compensation payable in respect of the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries),
(c) compensation payable in respect of the modification of a worker’s home or vehicle.
A worker’s injury is considered to have resulted in permanent impairment of greater than 20% only if the injury has resulted in permanent impairment and:
(a) the degree of permanent impairment has been assessed for the purposes of Division 4 of Part 3 of the 1987 Act to be greater than 20%, or
(b) an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note— Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c) the insurer is satisfied that the degree of permanent impairment is likely to be greater than 20%.
In this clause:
An existing claim is exempt from the operation of section 59A (Limit on payment of compensation) of the 1987 Act in respect of compensation for the cost of secondary surgery.
Surgery is
(a) the surgery is directly consequential on earlier surgery and affects a part of the body affected by the earlier surgery, and
(b) the surgery is approved by the insurer within 2 years after the earlier surgery was approved (or is approved later than that pursuant to the determination of a dispute that arose within that 2 years).
This clause does not affect the requirements of section 60 of the 1987 Act (including, for example, the requirement for the prior approval of the insurer for secondary surgery).
This clause only creates an exception from section 59A of the 1987 Act in respect of compensation for secondary surgery that would have been payable (had it not been for section 59A) as part of the original claim for compensation. It does not relate to surgery for an injury that gives rise to a separate claim for compensation.
(Repealed)
The amendment of clause 17 of this Schedule by the Workers Compensation Amendment (Existing Claims) Regulation 2014 takes effect as from 31 March 2014.
A work capacity assessment conducted by an insurer under clause 8 of Part 19H of Schedule 6 to the 1987 Act that would have been validly conducted had the amendment referred to in subclause (1) been made before the work capacity assessment was conducted is taken to have been validly conducted.
Consequent on the amendment made to section 52 of the 1987 Act by the 2015 amending Act, certain workers who were injured before reaching the retiring age (and who reached the retiring age during the period commencing on 1 October 2012 and ending on 15 October 2015) may be eligible for weekly payments of compensation after the day on which they reached the retiring age. As a result of this extension of eligibility for weekly payments of compensation, the period during which certain workers are eligible for compensation for medical and related expenses may also be extended. See section 59A of the 1987 Act for the effect of weekly payments of compensation on eligibility for compensation for medical and related expenses.
In this Part:
A worker is a
(a) the worker received an injury before reaching the retiring age, and
(b) the worker reached the retiring age during the transition period, and
(c) weekly payments of compensation are payable to the worker under Division 2 of Part 3 of the 1987 Act, as amended by the 2015 amending Act, in respect of any period of incapacity occurring during the retirement period.
Words and expressions used in this Part have the same meaning as in Part 19I of Schedule 6 to the 1987 Act.
The provisions of the 1987 Act, including Part 19I of Schedule 6 to that Act, are deemed to be amended to the extent necessary to give effect to this Part.
Section 59A of the 1987 Act (as substituted by the 2015 amending Act) extends to the compensation payable to any injured worker in respect of any period before 4 December 2015 but not before 17 September 2012.
The following provisions of the 1987 Act do not apply with respect to any exempt medical treatment:
(a) section 60 (2A) (a),
(b) sections 61 (2), 62 (1) and 63A (2).
However, subclause (1) does not affect the operation of section 60A of the 1987 Act.
In this clause:
(a) to a retiring-age worker by reason of the amendment made to section 52 of the 1987 Act by the 2015 amending Act, or
(b) to any injured worker by reason of the substitution of section 59A of the 1987 Act by the 2015 amending Act.
A certificate of capacity provided under section 44B of the 1987 Act may relate to a period that is more than 90 days before the certificate is provided if:
(a) the worker to whom the certificate relates is a retiring-age worker, and
(b) the period to which the certificate relates occurred wholly during the retirement period.
The amendments made to section 66 of the 1987 Act by the 2015 amending Act extend to an injury received by a worker on or after 5 August 2015.
A worker to whom paragraph (b) of the definition of
The section 38 amendments do not apply to the determination of the compensation payable in respect of any period of incapacity occurring before 17 September 2012.
The requirement under section 38 (3A) of the 1987 Act that any application for continuation of weekly payments after the second entitlement period must be made no earlier than 52 weeks before the end of the second entitlement period does not apply in respect of a worker to whom compensation has become payable by reason of the section 38 amendments (and clause 9 (1) of Part 19I of Schedule 6 to the 1987 Act in its application to those amendments) in respect of any period of incapacity occurring before 4 December 2015.
A worker to whom subclause (2) and section 38 (3A) of the 1987 Act applies must apply to the insurer in writing (in the form approved by the Authority) to be entitled to compensation under section 38 of that Act.
A certificate of capacity provided under section 44B of the 1987 Act may relate to a period that is more than 90 days before the certificate is provided if:
(a) compensation has become payable to the worker to whom the certificate relates by reason of the section 38 amendments (and clause 9 (1) of Part 19I of Schedule 6 to the 1987 Act in its application to those amendments), and
(b) the period to which the certificate relates occurred wholly during the period commencing on 17 September 2012 and ending on 3 December 2015 (inclusive).
In this clause:
Section 38A of the 1987 Act does not apply to the determination of the compensation payable in respect of any period of incapacity occurring before 17 September 2012.
Section 38A of the 1987 Act does not apply to a worker whose pre-injury average weekly earnings have been deemed to be equal to the transitional amount for the purposes of the application under clause 9 or 10 of Part 19H of Schedule 6 to the 1987 Act of the weekly payments amendments (within the meaning of that Part) to the worker.
Section 64C of the 1987 Act (as inserted by the 2015 amending Act) does not apply to education or training provided before the commencement of that section.
To the extent that clause 3 of Part 19I of Schedule 6 to the 1987 Act applies in respect of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987, that clause does not apply to the amendment made by the 2015 amending Act to section 25 of the 1987 Act (or to clause 5 of that Part in its application to that amendment).
The effect of this subclause is that a reference in the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 to section 25 of the 1987 Act is (in respect of deaths occurring on or after 5 August 2015) a reference to that provision as amended by the 2015 amending Act.
The provisions of Part 19I of Schedule 6 to the 1987 Act are deemed to be amended to the extent necessary to give effect to this clause.
In this clause,
Any amendment (other than this clause) made by the Workers Compensation Amendment (Premiums) Regulation 2016 that applies in relation to insurance premiums orders in force immediately before the commencement of the amendment does not apply in relation to any insurance premiums orders referred to in clause 2 (1) of Part 19J of Schedule 6 to the 1987 Act.
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