Workers Rehabilitation and Compensation Amendment Act 2000 (TAS)

Workers Rehabilitation and Compensation Amendment Act 2000

An Act to amend the Workers Rehabilitation and Compensation Act 1988

[Royal Assent 20 December 2000]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1Preliminary1Short titleThis Act may be cited as the Workers Rehabilitation and Compensation Amendment Act 2000 . 2CommencementThis Act commences on a day to be proclaimed. PART 2Workers Rehabilitation and Compensation Act 1988 Amended3Principal ActIn this Part, the Workers Rehabilitation and Compensation Act 1988 is referred to as the Principal Act. 4Section 3 amended (Interpretation) Section 3 of the Principal Act is amended as follows: (a) by inserting the following definition after the definition of accredited person in subsection (1) : AMA Guides means – (a) the American Medical Association Guides to the Evaluation of Permanent Impairment, fourth edition, as modified by this Act; or (b) such later edition of those Guides as may be prescribed, as modified by this Act; (b) by inserting the following definition after the definition of application in subsection (1) : arbitrated hearing means a hearing under Division 3 of Part V ; (c) by inserting the following definition after the definition of barrister in subsection (1) : basic salary means – (a) during the year beginning 1 January 1991, $311·30; and (b) during any subsequent year beginning 1 January, the basic salary for the previous year as varied by the relevant percentage; (d) by omitting the definition of Board from subsection (1) and substituting the following definition: Board means the WorkCover Tasmania Board established under section 8 ; (e) by omitting the definition of employer from subsection (1) and substituting the following definition: employer means the person with whom a worker has entered into a contract of service or training agreement and may include – (a) the Crown; and (b) the employer of any person or class of persons taken to be a worker for the purposes of this Act; and (c) the legal personal representative of a deceased employer; (f) by omitting the definition of injury from subsection (1) and substituting the following definitions: injury includes – (a) a disease; and (b) the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the employment was the major or most significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration; injury management means the management of an injured worker intended to provide the worker with a timely, safe and durable return to work following an injury; (g) by inserting the following definition after the definition of long service leave in subsection (1) : medical panel means a medical panel formed under section 50 ; (h) by omitting the definition of medical question from subsection (1) and substituting the following definition: medical question means a question relating to – (a) the existence, nature or extent of an injury; or (b) whether an injury is, or is likely to be, permanent or temporary; or (c) a worker’s capacity for work or specific work duties; or (d) the loss, or the degree of loss, of any of the parts or faculties of the body; or (e) the permanent loss of the effective use of a part of the body; or (f) the assessment of the degree of permanent impairment, including whether the impairment is permanent; (i) by inserting the following definition after the definition of practitioner in subsection (1) : psychiatric impairment means an illness of the mind or a disorder of the mind; (j) by omitting the definition of self-insurer from subsection (1) and substituting the following definition: self-insurer means an employer who is the holder of a permit; (k) by inserting the following definition after the definition of specialized insurer in subsection (1) : State includes a Territory; (l) by omitting the definition of worker from subsection (1) and substituting the following definition: worker means – (a) any person who has entered into, or works under, a contract of service or training agreement with an employer, whether by way of manual labour, clerical work or otherwise, and whether the contract is express or implied, or is oral or in writing; and (b) any person or class of persons taken to be a worker for the purposes of this Act – and when used in relation to a person who has been injured and is dead, includes the legal personal representatives or dependants of that person or other person to whom or for whose benefit compensation is payable; (m) by omitting from subsection (2A) "is taken to have"; (n) by inserting in subsection (2A) "only" after "degree". 5Section 4 amended (Application of Act) Section 4(5) of the Principal Act is amended as follows: (a) by omitting from paragraph (a) "business;" and substituting "business; or"; (b) by omitting from paragraph (b) "outworker;" and substituting "outworker; or"; (c) by omitting from paragraph (d) "boat –" and substituting "boat; or"; (d) by inserting the following paragraph after paragraph (d) : (e) notwithstanding section 4D , who is participating in an approved program of work for unemployment payment under the Social Security Act 1991 of the Commonwealth – 6Sections 4A , 4B , 4C and 4D insertedAfter section 4 of the Principal Act , the following sections are inserted in Part I: 4AServices of workers lent or on hire If an employer lends or hires the services of a worker to another person, the employer continues to be the employer, for the purposes of this Act, of the worker while the worker is working for that other person. 4BContractors (1)  Subject to subsection (2) , where a person makes a contract with a contractor to perform work exceeding $100 in value that is not work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name or under a business or firm name, and the contractor does not sublet the contract or employ any worker, the contractor is taken to be a worker employed by the person making the contract. (2)  If a contractor to whom subsection (1) applies takes out his or her own personal accident insurance, the contractor is taken not to be a worker for the period during which that insurance remains valid. (3)  If a contractor takes out his or her own personal accident insurance, the contractor is to provide the person with whom the contract is made with evidence of the contractor’s insurance. (4)  If a contractor does not take out his or her own personal accident insurance, he or she is to advise the person with whom the contract is made that the contractor has not taken out such insurance. 4CSalespersons (1)  A salesperson, canvasser, collector or other person paid wholly or partly by commission is, for the purposes of this Act, taken to be a worker in the employment of the person by whom the commission is payable, unless the commission is received for or in connection with work incidental to a trade or business regularly carried on by the salesperson, canvasser, collector or other person or by a firm of which he or she is a member. (2)  If more than one employer is employing a salesperson, canvasser, collector or other person at the time of an injury to that person, all the employers are liable to contribute to any compensation payable under this Act in respect of the injury in such proportion as, in default of agreement, the Tribunal determines. 4DParticipants in training programs (1)  A training program that includes the provision of workplace-based training and involves the provision of funding by the Commonwealth may be prescribed as a training program for the purposes of this section. (2)  A class of payments may be prescribed as payments that are taken to be wages in respect of a participant in a prescribed training program. (3)  A participant in a prescribed training program is taken to be a worker employed by the person providing the workplace-based training. (4)  A payment prescribed under subsection (2) as wages in respect of a participant in a prescribed training program is, for the purposes of this Act, taken to be the participant’s wages in the employment by the person providing the workplace-based training. (5)  This section does not apply in respect of the participation of a person, or an injury received by a person, in a training program before the program was prescribed as a training program. 7Section 5 amended (Persons engaged in fire-fighting operations and fire prevention operations) Section 5(2)(b) of the Principal Act is amended by omitting "an amount calculated as prescribed in the regulations" and substituting "the basic salary". 8Section 6 amended (Persons engaged in providing ambulance services) Section 6(2)(b) of the Principal Act is amended by omitting "an amount calculated as prescribed in the regulations" and substituting "the basic salary". 9Section 6A amended (Police volunteers) Section 6A(2)(b) of the Principal Act is amended by omitting "an amount calculated as prescribed" and substituting "the basic salary". 10Section 6B amended (Prescribed classes of volunteers) Section 6B(2)(b) of the Principal Act is amended by omitting "an amount calculated as prescribed" and substituting "the basic salary". 11Part II, Division 1: Heading amended Division 1 of Part II of the Principal Act is amended by omitting "Workplace Safety Board of Tasmania" from the heading to that Division and substituting "WorkCover Tasmania Board". 12Section 8 substituted Section 8 of the Principal Act is repealed and the following section is substituted: 8WorkCover Tasmania Board (1)  The Workplace Safety Board of Tasmania is abolished and the WorkCover Tasmania Board is established. (2)  The corporate name of the Board is "WorkCover Tasmania". (3)  The Board – (a) is a body corporate with perpetual succession; and (b) has a common seal; and (c) may sue and be sued in its corporate name. (4)  Schedule 10 has effect. 13Section 9 amended (Membership of Board) Section 9 of the Principal Act is amended as follows: (a) by omitting subsection (1) and substituting the following subsection: (1)  The Board consists of – (a) the Secretary of the Department, or a person nominated by the Secretary, who is to be the chairperson; and (b) subject to subsections (2) and (3) , 2 persons nominated by the Minister from a list of 3 names submitted to the Minister by the Tasmanian Chamber of Commerce and Industry Ltd; and (c) subject to subsection (3) , 2 persons nominated by the Minister from a list of 3 names submitted to the Minister by the Tasmanian Trades and Labor Council; and (d) a legal practitioner with experience in workers’ rehabilitation and compensation matters nominated by the Minister; and (e) a person with extensive experience in the workers’ compensation insurance business nominated by the Minister; and (f) a medical practitioner nominated by the Minister. (b) by omitting from subsection (4) "referred to in subsection (1) (a) , (b) , (c) , (e) and (f) ". 14Section 10 substituted Section 10 of the Principal Act is repealed and the following section is substituted: 10Functions of Board In addition to the functions conferred or imposed on it by any other provision of this Act or any other Act, the Board has the following functions: (a) to make recommendations to the Minister on – (i) the policy and objectives of legislation relating to workers rehabilitation and compensation and workplace health and safety in this State; and (ii) the amendment or replacement of that legislation; (b) to monitor and report to the Minister on the operation and effectiveness of that legislation and on the performance of the systems to which the legislation relates; (c) to monitor and review the Department in connection with the exercise of powers and the performance of functions under this Act and the Workplace Health and Safety Act 1995 ; (d) to control and administer the Fund; (e) to promote the prevention of injury at the workplace and the development of healthy and safe workplaces; (f) to promote and support the effective injury management of injured workers; (g) to review and monitor the performance of licensed insurers and self-insurers and the operation of the Nominal Insurer; (h) to review and monitor premium rates and, so far as is practicable, ensure insurance arrangements are efficient and competitive; (i) to collect and publish statistics on any matter the Board considers necessary or relevant to the performance of its functions under, or the administration of, this Act; (j) to promote understanding of this Act and the Workplace Health and Safety Act 1995 through education and any other appropriate means; (k) to advise the Minister on any matter relating to this Act that the Minister refers to the Board; (l) to issue guidelines for the assessment of permanent impairment under this Act; (m) such other functions as may be prescribed. 15Section 15 amended (Annual report) Section 15 of the Principal Act is amended by omitting subsection (1A) . 16Section 25 amended (Liability of employers to compensate workers for injuries) Section 25 of the Principal Act is amended as follows: (a) by inserting in subsection (1)(b) ", within the meaning of section 3(2A) " after "degree"; (b) by inserting in subsection (1A) "which is an illness of the mind or a disorder of the mind and" after "disease"; (c) by omitting paragraph (e) from subsection (1A) and substituting the following paragraph: (e) reasonable action taken by an employer under this Act in a reasonable manner affecting a worker. (d) by omitting from subsection (4) "travelling of a person to or from such a place and his" and substituting “person’s”; (e) by inserting the following subsection after subsection (6) : (7)  For the purposes of subsection (6)(a)(ii) , a journey is not work related by reason only of the fact that it is for the purpose of enabling a worker to travel – (a) to his or her place of employment from his or her place of residence; or (b) to his or her place of residence from his or her place of employment. 17Section 29 amended (Liability of principal in case of workers employed by contractors) Section 29(4) of the Principal Act is amended by inserting ", other than the Nominal Insurer," after "person". 18Section 30 amended (Liabilities of employer transferred to licensed insurer) Section 30 of the Principal Act is amended as follows: (a) by omitting from subsection (1) "rights of the employer against the licensed insurer in respect of the liability shall be transferred to and vest in the worker" and substituting "liabilities of the employer to the worker are transferred to and imposed upon the licensed insurer"; (b) by omitting subsection (2) and substituting the following subsection: (2)  On the transfer of an employer’s liabilities to the licensed insurer under subsection (1) , the licensed insurer – (a) retains the same rights, remedies and defences as it would otherwise have had against the employer; and (b) has the same rights and remedies against the worker as if it were the employer; and (c) is subject to the same liabilities to the worker as if it were the employer. 19Section 36 amended (Employer to forward accident report and claim) Section 36(3) of the Principal Act is amended by inserting after paragraph (a) the following paragraph: (ab) hinders or prevents, or attempts to hinder or prevent, a worker from obtaining a claim form or making or pursuing a claim for compensation under this Act; or 20Section 39 substituted Section 39 of the Principal Act is repealed and the following section is substituted: 39Settlement of claims for compensation by agreement (1)  Subject to subsection (2) and section 89 , a claim for compensation may be settled by agreement between the parties. (2)  A claim for compensation may not be settled by agreement unless – (a) the injury in respect of which the claim is made is stable and stationary; and (b) 12 months has elapsed since the date the claim was lodged. (3)  A worker, the employer of the worker or the licensed insurer of the employer may, within 3 months of the date of the agreement, refer the agreement to the Tribunal for review. (4)  A referral of an agreement to the Tribunal for review is to be in a form approved by the Tribunal. (5)  The Tribunal may set aside an agreement if of the opinion that – (a) the agreement is inequitable; or (b) a party was forced to enter the agreement against his or her will or without the legal capacity to do so; or (c) for any other reason, the agreement should be set aside. (6)  If the Tribunal sets aside an agreement – (a) the Tribunal is not to make any order as to the amount of the settlement; and (b) the Tribunal may make any order it considers appropriate in respect of the repayment of any money paid under the agreement; and (c) the parties may enter another agreement for the settlement of the claim. 21Part V: Heading amended Part V of the Principal Act is amended by omitting "REFERENCE OF CLAIMS FOR COMPENSATION TO TRIBUNAL" from the heading to that Part and substituting "DISPUTE RESOLUTION". 22Part V, Division 1: Heading inserted Part V of the Principal Act is amended by inserting the following heading before section 42 : Reference of claims to Tribunal 23Part V, Division 2 insertedAfter section 42 of the Principal Act , the following Division is inserted in Part V: Division 2Conciliation process 42AInterpretation of Division In this Division, party means a person determined under section 42(4) to have an interest in a claim for compensation. 42BParties to undertake conciliation process (1)  If a claim for compensation, other than a claim referred to the Tribunal in accordance with section 81A , is referred to the Tribunal, the parties must undertake a conciliation process for the purpose of attempting to resolve the claim by agreement. (2)  The conciliator may be a Commissioner, the Registrar, a deputy registrar of the Tribunal or a person appointed by the Minister by notice published in the Gazette. (3)  A notice under subsection (2) is not a statutory rule for the purposes of the Rules Publication Act 1953 . (4)  The Tribunal is to serve each party with notice – (a) that he or she is required to undertake a conciliation process; and (b) of the identity and contact details of the conciliator; and (c) of a brief outline of how the process is to be conducted. (5)  The notice is to be served within 14 days of the claim being referred to the Tribunal. 42CConciliation process (1)  Subject to subsection (2), the conciliation process is to be conducted in any manner the conciliator determines, taking into account the issues and circumstances of the relevant claim. (2)  The conciliation process may consist of the following: (a) a preliminary stage; (b) a conciliation conference. 42DPreliminary stage (1)  The purpose of the preliminary stage is as follows: (a) to identify the issues in dispute; (b) to ensure that any necessary investigations or medical examinations are arranged; (c) to determine the necessary steps for each party to take in order to resolve the claim; (d) to discuss the claim generally and to obtain concessions from the parties as to fact, law or procedure where possible; (e) where a settlement of the claim is not possible, to discuss the claim in preparation for a conciliation conference; (f) to discuss any other matter that may be relevant to achieving a speedy resolution of the claim. (2)  Contact between the conciliator and the parties during the preliminary stage may be – (a) by telephone, writing or in any manner the conciliator determines; and (b) made with the parties jointly or separately; and (c) by an officer of the Tribunal on behalf of the conciliator. 42EConciliation conference may be required (1)  If a claim cannot be resolved in the preliminary stage, the conciliator is to schedule the claim for a conciliation conference. (2)  If a conciliation conference is required, the conciliator is to serve the parties with notice of the date, time and place at which the conciliation conference is to be held. (3)  Notice under subsection (2) is to be served not less than 7 days before the date on which the conciliation conference is to be held. (4)  A party served with a notice under subsection (2) must not, without reasonable excuse, fail or refuse to attend the conciliation conference.

Penalty:  Fine not exceeding 20 penalty units.

(5)  The conciliator may require the parties to attend more than one conciliation conference. 42FPurpose of conciliation conference The purpose of the conciliation conference is to provide an opportunity for open and "without prejudice" discussion based on all the available information to facilitate a resolution of the claim. 42GEvidence during conciliation process (1)  During a conciliation process, a party to the process must provide the other parties to the process with any report or proof of evidence from a medical practitioner or other expert witness on whom the party intends to rely should the claim proceed to an arbitrated hearing before the Tribunal. (2)  If a party fails to provide the report or proof of evidence referred to in subsection (1) during the conciliation process, the party may not adduce evidence from the medical practitioner or other expert witness at an arbitrated hearing before the Tribunal, unless the Tribunal otherwise allows. (3)  Subject to subsection (4) , all discussions held with a conciliator during the conciliation process are confidential and without prejudice and any notes or other documents forming part of the conciliator’s record are not to be disclosed to the Tribunal, except in relation to – (a) the provision of reasons to the Tribunal in support of a recommendation made by the conciliator; and (b) the determination of costs as provided by section 59 . (4)  At the conclusion of the conciliation process, the conciliator is to give the Tribunal notice in the approved form of the outcome of that process. (5)  Notice under subsection (4) is to – (a) identify and give the date of any expert report or proof of evidence given during the conciliation process; and (b) identify the issues in dispute between the parties; and (c) identify any agreed facts or concessions made by the parties during that process; and (d) if the claim has been resolved, include details of the resolution. 42HRepresentation during conciliation process (1)  Subject to subsections (3) and (4) , a worker may be represented during the conciliation process. (2)  Subject to subsection (3) , a party, other than a worker, may be represented during the conciliation process by – (a) in the case of a body corporate, an officer of the body corporate; and (b) in any other case, an officer of an association to which that party belongs. (3)  A person representing a worker, or an officer referred to in subsection (2) , must have the authority to settle or otherwise determine the claim on behalf of the worker or party represented at a conciliation conference. (4)  A party may not be represented at a conciliation conference by a legal practitioner within the meaning of the Legal Profession Act 1993 unless the conciliator determines that – (a) the party’s interests would be materially disadvantaged by not being so represented; or (b) the conference would be materially assisted in resolving the claim for compensation by the presence of that legal practitioner. (5)  A party who is aggrieved by the determination of a conciliator in relation to representation at a conciliation conference may refer the matter to the Tribunal for determination. (6)  The determination of the Tribunal is final and not subject to appeal. 42IPowers of conciliator (1)  A conciliator may direct a party to – (a) attend at a meeting with the conciliator; and (b) provide, within a specified period, the conciliator or another party with any documents or information the conciliator considers may help resolve the claim; and (c) attend at a conciliation conference at which the conciliator and any other party is present. (2)  The conciliator may do any one or more of the following things in connection with a claim: (a) make any recommendations to the parties as the conciliator considers appropriate; (b) recommend to the Tribunal that it make an interim order in respect of any issue raised in the claim; (c) vary or revoke a direction or recommendation made by the conciliator; (d) decline to make any direction or recommendation; (e) recommend that the Tribunal refer a medical question to a medical panel. (3)  The Tribunal must make, or decline to make, an order within 5 days after receiving a recommendation under subsection (2)(b) . (4)  A party or his or her representative must not fail to comply with a direction of the conciliator given to the party or representative, respectively, under this section.

Penalty:  Fine not exceeding 10 penalty units.

42JPayment not admission of liability The fact that a person pays or continues to pay compensation in accordance with an interim order or recommendation under this Division is not an admission of liability in respect of that claim by the person. 42KClaim unresolved after conciliation (1)  If a claim is unresolved at the conclusion of the conciliation process, the conciliator is to certify that the claim proceed to an arbitrated hearing. (2)  If the conciliator is of the opinion that any of the parties has not made a reasonable attempt to resolve the claim throughout the conciliation process, the conciliator is to give the Tribunal written notice of that fact. 42LConciliator may discontinue process At any stage in the conciliation process, the conciliator, if of the opinion that the claim is for any reason unsuitable for conciliation, may discontinue the process and require the claim to proceed to an arbitrated hearing. 42MResolution of claim in conciliation process If a claim is resolved at any stage of the conciliation process, the conciliator is to refer the claim to the Tribunal for the making of an order giving effect to the resolution. 42NLiability of conciliator No liability attaches to a conciliator for an act or omission by the conciliator in good faith and in the exercise or purported exercise of a power or in the performance or discharge, or purported performance or discharge, of a function or duty, of the conciliator. 24Sections 43 and 43A repealed Sections 43 and 43A of the Principal Act are repealed. 25Part V, Division 3: Heading inserted Part V of the Principal Act is amended by inserting the following heading after section 42 : Arbitration 26Section 49 amended (Procedure of Tribunal) Section 49 of the Principal Act is amended as follows: (a) by inserting the following subsection after subsection (1) : (1A)  A party may not adduce expert evidence at a hearing, other than a hearing under section 81A, unless – (a) the evidence has been disclosed to the other parties to the hearing during the conciliation process in accordance with section 42G; or (b) the Tribunal otherwise allows. (b) by omitting subsections (3) and (3A) and substituting the following subsections: (3)  Where a medical question arises in any proceedings before the Tribunal, the Tribunal may – (a) determine the medical question on any medical evidence presented to the Tribunal; or (b) refer the medical question, subject to subsection (3A) , to a medical panel formed under section 50 . (3A)  The Tribunal may only refer a medical question under subsection (3)(b) if – (a) there is a conflict of medical opinion presented to the Tribunal on the question between – (i) a medical practitioner engaged by the worker; and (ii) any medical practitioner provided and paid by the employer or insurer; and (b) one or more of the parties wishes the proceedings to continue. (c) by omitting subsection (4) and substituting the following subsection: (4)  The Tribunal is bound by the determination of a medical panel given in response to a medical question referred to it under subsection (3)(b) . 27Part V, Division 4: Heading inserted Part V of the Principal Act is amended by inserting the following heading after section 49 : Medical panels 28Sections 50 , 51 , 52 , 53 , 54 and 55 substituted Sections 50 , 51 , 52 , 53 , 54 and 55 of the Principal Act are repealed and the following sections are substituted: 50Medical panels (1)  The Tribunal is to keep and maintain a register of suitably qualified medical practitioners who are willing to be selected on a medical panel. (2)  On the referral of a medical question to a medical panel, the Tribunal is to select 2 or 3 practitioners, at least one of whom is to be a general practitioner, from the register to form the medical panel. (3)  At least one of the medical practitioners is to have particular expertise in the medical field to which the question relates. (4)  The Tribunal must appoint one of the medical practitioners to be chairperson of the panel. (5)  The Tribunal must not nominate a medical practitioner to be a member of a medical panel for the purpose of obtaining a determination in response to a medical question in respect of a worker if the medical practitioner – (a) has, in any capacity other than as a member of a medical panel, been involved in the examination or treatment of, or has provided medical services (including an assessment of impairment) to, the worker in relation to the injury in respect of which the medical advice or opinion is sought by the Tribunal; or (b) informs the Tribunal that, for any reason, the medical practitioner’s appointment to the medical panel could give rise to a conflict of interest. (6)  The Tribunal is to ensure that the medical panel is provided with any information in its possession likely to assist in determining the medical question. 51Determination by medical panel (1)  If 2 or more members of a medical panel are in agreement as to the determination of a medical question, the determination of those members is taken to be the determination of the panel. (2)  A medical panel is to make its determination as soon as practicable and, in any event, within 28 days after the medical question has been referred to it. (3)  If the members of a medical panel do not agree as to the determination of a medical question, the question is to be returned to the Tribunal for its determination. 52Tribunal to be informed of findings (1)  Within 7 days after determining a medical question, a medical panel is to provide the Tribunal with – (a) its written determination in response to that medical question; and (b) the reasoning, in writing, used in determining that question. (2)  Within 3 days after receiving the medical panel’s determination of a medical question, the Tribunal is to provide a copy of the determination to the worker to whom the medical question relates and to any other interested party. 53Representation before medical panel (1)  A worker in respect of whom a claim for compensation relates is not entitled to be represented by any person at any attendance before a medical panel unless it appears to the medical panel that the worker should be allowed to be so represented. (2)  A worker is entitled to be accompanied by a person of his or her choice at any attendance before a medical panel. 54Power of medical panel to examine worker (1)  A medical panel or member of a medical panel may conduct such medical examination of a worker to whom a claim for compensation relates as the medical panel or member considers necessary to determine a medical question referred to the panel under section 49(3)(b) . (2)  In conducting a medical examination, a medical panel or member of a medical panel may require the worker to answer questions, produce relevant documents or consent to the production of relevant documents by another person. (3)  If a worker unreasonably refuses or neglects to answer questions, produce relevant documents or consent to the production of relevant documents, the Tribunal may suspend the worker’s right to compensation under this Act until he or she answers the questions, produces the documents or consents to the production of the documents. 55Failure to attend before medical panel If a worker in respect of whom a claim for compensation has been made – (a) fails, without reasonable cause, to attend before a medical panel at the time and place of which the worker has received not less than 7 days’ prior notice in writing from the Tribunal; or (b) appears before a medical panel but refuses to be medically examined by the medical panel or a member of the medical panel or in any way obstructs such an examination – the Tribunal may suspend the worker’s right to compensation under this Act until he or she appears before the medical panel or undergoes that examination. 55ALiability of members of medical panel No liability attaches to a member of a medical panel for an act or omission by the member or the medical panel in good faith and in the exercise or purported exercise of a power or in the performance or discharge, or purported performance or discharge, of a function or duty of the member or medical panel. 55BMedical panel not bound by rules of evidence A medical panel is not bound by the rules of evidence but may inform itself on any matter relating to the medical question in any manner it thinks fit. 55CRemuneration of members of panel (1)  A member of a medical panel is entitled to such remuneration as the Minister determines. (2)  Any remuneration payable under subsection (1) is to be paid out of the Fund. 29Part V, Division 5: Heading insertedPart V of the Principal Act is amended by inserting the following heading after section 55C: Miscellaneous 30Section 59 amended (Costs) Section 59 of the Principal Act is amended by omitting subsection (2) and substituting the following subsection: (2)  The Tribunal may not order costs in respect of the conciliation process set out in Division 2 except if it appears to the Tribunal that a party – (a) has unreasonably obstructed or prolonged that process; or (b) has not made a reasonable attempt to resolve the claim throughout the conciliation process. 31Section 61 amended (Orders of Tribunal) Section 61(6) of the Principal Act is amended as follows: (a) by omitting from paragraph (a) "court of requests" and substituting "Magistrates Court (Civil Division)"; (b) by omitting from paragraph (b) " Local Courts Act 1896 " and substituting " Magistrates Court (Civil Division) Act 1992 ". 32Section 64 amended (Regulations for purposes of Part V) Section 64(2)(a) of the Principal Act is amended by omitting " section 43A " and substituting "this Part". 33Section 65 amended (Interpretation of Division 1 of Part VI) Section 65 of the Principal Act is amended by omitting the definition of basic salary and substituting the following definitions: child means a person who – (a) is under the age of 16 years; or (b) is 16 years or more, but less than 21 years and is a full-time student; dependent child means a child who is a dependant; dependent spouse means a spouse, or a de facto spouse, who is a dependant; 34Section 67 substituted Section 67 of the Principal Act is repealed and the following sections are substituted: 67Amount of compensation in case of death (1)  Where a worker dies as a result of an injury suffered by him or her and in respect of which his or her employer is liable to pay compensation under this Act, the compensation payable under this Act is a lump sum not exceeding 369 units, together with any weekly payment payable under section 67A . (2)  Where a deceased worker leaves – (a) a wholly dependent spouse, the lump sum referred to in subsection (1) is to be 369 units to be paid to the spouse; or (b) a partially dependent spouse and no dependent children, the lump sum is to be an amount calculated in accordance with subsection (3) to be paid to the spouse; or (c) no dependent spouse and a wholly dependent child or wholly dependent children, the lump sum referred to in subsection (1) is to be 369 units to be paid to the child or equally to the children; or (d) no dependent spouse and a partially dependent child or children, the lump sum is to be an amount calculated in accordance with subsection (3) to be paid to the child or children according to the level of his or her dependency. (3)  A lump sum calculated in accordance with this subsection is to be such amount, not exceeding 369 units, as is reasonable and proportionate to the degree of dependency of the dependant. (4)  Where a deceased worker leaves no dependants, but was, immediately before that date, contributing towards the maintenance of the home of the members of his or her family, those members are taken to be dependants of the worker in part dependent upon the worker, and the provisions of subsection (3) apply to, and in respect of, those members accordingly. (5)  An amount paid or payable before the death of a worker as weekly payments in respect of his or her total or partial incapacity for work resulting from the injury suffered by him or her is not to be taken into consideration in calculating the amount of compensation payable under this section upon the worker’s death. 67AWeekly payments in case of death (1)  In addition to any lump sum payable under section 67 – (a) a spouse of a deceased worker who is wholly or mainly dependent on that worker, is entitled to weekly payments from the date of the worker’s death, calculated at the same rate as the deceased worker would have been entitled to had he or she become totally incapacitated; and (b) a dependent child of the deceased worker is entitled to weekly payments of 10% of the basic salary, commencing on the expiration of 13 weeks after the date of death. (2)  The amount payable under subsection (1)(a) is to be paid as follows: (a) 100% of the weekly payment for the first 13 weeks following the date of death; (b) 85% of the weekly payment for the period exceeding 13 weeks but not exceeding 52 weeks from the date of death; (c) 70% of the weekly payment for the period exceeding 52 weeks but not exceeding 2 years from the date of death. (3)  If a worker dies, as a result of injuries in respect of which he or she is receiving compensation under this Act, more than one year after receiving those injuries, his or her dependent spouse is entitled to 70% of the weekly payment. (4)  A spouse ceases to be entitled to weekly payments under subsection (3) on the expiration of 2 years after the date of death. 35Section 69 amended (Amount of compensation in case of incapacity) Section 69 of the Principal Act is amended as follows: (a) by omitting subsection (6) ; (b) by inserting the following subsection after subsection (12) : (13)  If the period specified in a medical certificate provided by a worker under this section expires and the worker provides a further certificate more than 14 days after the expiration of that specified period, the employer, on receipt of the subsequent certificate, may treat that certificate as a claim for compensation to which section 81A applies. 36Section 69B substituted Section 69B of the Principal Act is repealed and the following section is substituted: 69BPeriod for which benefits are payable (1)  The weekly payment determined under section 69 is to be payable as follows: (a) 100% of the weekly payment for the first 13 weeks of incapacity in aggregate following the date of the initial incapacity; (b) 85% of the weekly payment for the period of incapacity in aggregate exceeding 13 weeks but not exceeding 52 weeks from the date of the initial incapacity; (c) 70% of the weekly payment for the period of incapacity in aggregate exceeding 52 weeks but not exceeding 10 years from the date of the initial incapacity. (2)  On the expiration of 10 years after the date of the initial incapacity, a worker ceases to be entitled to weekly payments under section 69 . (3)  An amount payable under subsection (1)(b) or (c) is not to be less than 70% of the basic salary. (4)  For the purposes of subsection (3) , the entitlement of a worker who, at the time of injury was working on a part-time or casual basis, is to be calculated as if the basic salary were an amount which bears the same proportion to the actual basic salary as the number of hours during which the worker was engaged immediately before the period of incapacity bore to full-time employment. 37Sections 71 , 72 and 73 substituted Sections 71 , 72 and 73 of the Principal Act are repealed and the following sections are substituted: 71Compensation for permanent impairment (1)  The amount of compensation payable under this section to a worker who suffers permanent impairment resulting from an injury which entitles the worker to compensation under this Act is to be calculated as at the date of the injury as follows: (a) subject to paragraph (d) , a worker who suffers permanent impairment assessed at a percentage of the whole person of less than 5% is not entitled to compensation under this section; (b) a worker who suffers permanent impairment assessed at a percentage of the whole person of between 5% and 70%, inclusive, is entitled to compensation calculated in accordance with the following formula: where – WPI is the percentage of whole person impairment; BS is the basic salary; (c) a worker who suffers permanent impairment assessed at a percentage of the whole person equal to more than 70% is entitled to compensation of 369 units; (d) a worker who suffers permanent impairment in the form of the loss of part, or all, of a finger or toe and that impairment is assessed at a percentage of the whole person of less than 5%, the worker is entitled to compensation calculated in accordance with the following formula: where – WPI is the percentage of whole person impairment; BS is the basic salary. (2)  The amount of compensation payable under this section to a worker who suffers permanent psychiatric impairment which entitles the worker to compensation under this Act is to be calculated as at the date of the injury as follows: (a) a worker who suffers permanent psychiatric impairment assessed at a percentage of the whole person of less than 10% is not entitled to compensation under this section; (b) a worker who suffers permanent psychiatric impairment assessed at a percentage of the whole person of between 10% and 70%, inclusive, is entitled to compensation calculated in accordance with the following formula: where – WPI is the percentage of whole person impairment; BS is the basic salary; (c) a worker who suffers permanent psychiatric impairment assessed at a percentage of the whole person equal to more than 70% is entitled to compensation of 369 units. 72Assessment of degree of impairment (1)  An assessment of a degree of impairment is to be made in accordance with – (a) any relevant guidelines issued by the Board; or (b) if there are no such guidelines, the AMA Guides; or (c) if there are no such guidelines and the AMA Guides are not applicable or are unsuitable, any method as may be prescribed. (2)  In assessing a degree of impairment of an injury – (a) regard is not to be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, the physical injury; and (b) the degree may comprise a combination of impairments arising out of the same incident or occurring on the same date assessed together using the combination tables in the AMA Guides; and (c) if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed separately; and (d) an impairment arising otherwise than from the injury is to be disregarded. 73Industrial deafness (1)  The degree of a worker’s industrial deafness is to be measured according to the worker’s binaural hearing impairment. (2)  The degree of a worker’s industrial deafness is not to include the percentage of deafness as is shown – (a) to have arisen otherwise than from industrial deafness; or (b) subject to section 27 , to have been contracted outside this State; or (c) to be a condition in respect of which compensation has been awarded or paid under this Act or under a law of another State or of the Commonwealth or a Territory of the Commonwealth. (3)  A worker’s binaural hearing impairment is to be determined by the prescribed class of persons in accordance with the Improved Procedure for Determining Percentage Loss of Hearing, NAL Report No. 118 Commonwealth of Australia, 1988 (NAL Tables), as amended, or any similar report or other document as may be prescribed. (4)  The percentage of binaural hearing impairment is to be converted to a percentage of whole person impairment using the prescribed table. (5)  The regulations may prescribe the manner in which any determination or assessment under this section is required to be made and the persons or class of persons able to make such a determination or assessment. (6)  A worker who has industrial deafness has suffered an injury within the meaning of this Act notwithstanding that the worker has not incurred a loss of earning capacity. (7)  A worker is entitled to compensation under this Act in respect of industrial deafness which occurred after the commencement of the Workers Rehabilitation and Compensation Reform Act 1995 and which exceeds 5% binaural hearing impairment. (8)  For the purposes of subsection (7) , the 5% binaural hearing impairment due to industrial deafness is to be calculated by reference to the worker’s hearing ability at the commencement of the Workers Rehabilitation and Compensation Reform Act 1995 . (9)  The amount of compensation payable to a worker who suffers industrial deafness is to be calculated in accordance with section 71(1) . 73ADate of industrial deafness Notwithstanding section 3(5) , in respect of a claim for compensation for industrial deafness the date of injury is – (a) the last day of the worker’s employment out of which, or in the course of which, the deafness arose; or (b) if the worker is still in that employment, the date the claim is made. 73BDetermination for payment of compensation (1)  A determination for the payment of compensation for a claim for industrial deafness is to include a statement of the percentage of the whole person impairment of the worker at the date of the determination. (2)  A person who makes a payment of compensation for a claim for industrial deafness is to advise the Board of – (a) the date of the determination; and (b) the degree of industrial deafness of the worker in respect of whom the payment is made; and (c) the percentage of the whole person impairment of the worker at the date of the determination. (3)  The Board is to keep a register of all determinations for the payment of compensation for industrial deafness. 38Section 75 amended (Additional compensation for medical and other services) Section 75 of the Principal Act is amended by omitting subsections (2) and (2A) and substituting the following subsections: (2)  The liability of an employer to make a payment under this section expires 10 years after the date a claim under section 34 was given to the employer. (2A)  A person who provides any services in respect of a claim for compensation under this Act must not charge a fee that is in excess of – (a) the prescribed fee; or (b) if no fee is prescribed, the fee that the person would normally charge (taking into account any discount that would normally be applicable) for that service if that service were provided for a matter not connected with a claim for compensation.

Penalty:  Fine not exceeding 100 penalty units.

39Section 76 amended (Additional compensation for travelling expenses) Section 76 of the Principal Act is amended by omitting subsection (1) and substituting the following subsection: (1)  Where an employer of a worker is, under section 25 , liable to pay compensation in accordance with this Act, the employer is liable to pay to the worker or his or her dependants the lesser of – (a) the reasonable expenses necessarily incurred by the worker for travelling and maintenance in connection with all or any of the following purposes: (i) to undergo any medical examination under section 85 ; (ii) to obtain the medical services, hospital services or rehabilitation services in respect of which he or she is entitled to compensation under this Division; or (b) such amount as may be prescribed. 40Section 77 amended (Certain questions to be determined by Tribunal) Section 77 of the Principal Act is amended as follows: (a) by omitting "for payment"; (b) by inserting ", or may become," after "are". 41Section 77AA insertedAfter section 77 of the Principal Act , the following section is inserted in Division 2: 77AAEmployer to pay claim or refer it to Tribunal An employer must, within 28 days after receiving a worker’s claim for expenses under this Division – (a) pay the claim; or (b) refer the claim to the Tribunal.

Penalty:  Fine not exceeding 10 penalty units.

42Section 77A amended (Provision of certain services) Section 77A of the Principal Act is amended as follows: (a) by omitting subsection (1) and substituting the following subsection: (1)  A medical practitioner who resides, or is providing a medical service, in this State is not to issue a certificate referred to in section 34(1) or section 69(1) unless the medical practitioner has been accredited by the Board. (b) by omitting subsection (2) . 43Section 77C amended (Grant, &c., of accreditation) Section 77C of the Principal Act is amended by omitting subsection (2) and substituting the following subsection: (2)  The Board is not to grant accreditation to a medical practitioner or person unless it is satisfied that the medical practitioner or person – (a) has undertaken a course of training approved by it; and (b) has agreed to comply with the relevant requirements of this Act and any relevant regulations, guidelines and rules of practice and procedure issued under this Act. 44Section 77D substituted Section 77D of the Principal Act is repealed and the following section is substituted: 77DDuration of accreditation An accreditation remains in force for such period as the Board determines, unless it is sooner revoked or suspended in accordance with section 77F . 45Section 77E amended (Notice of refusal) Section 77E of the Principal Act is amended by omitting "or renew". 46Section 77F amended (Revocation or suspension of accreditations) Section 77F(1) of the Principal Act is amended by omitting paragraph (a) and substituting the following paragraph: (a) that the accredited medical practitioner or accredited person has failed to comply with any provision of this Act or of any regulations, guidelines or rules of practice and procedure made under this Act and the failure constitutes a substantial breach of the requirements of this Act or those regulations, guidelines or rules; or 47Section 77G amended (Appeals) Section 77G of the Principal Act is amended as follows: (a) by omitting paragraph (b) from subsection (1) ; (b) by omitting paragraph (b) from subsection (2) ; (c) by omitting subsection (3) and substituting the following subsection: (3)  Where an appeal is brought under this section in respect of the revocation or suspension of an accreditation, the revocation or suspension does not have effect until the determination or abandonment of the appeal or until such later date as the Tribunal determines. 48Section 77H amended (Publication of grant of accreditation) Section 77H of the Principal Act is amended by omitting ", the renewal of an accreditation is refused". 49Section 80A insertedBefore section 81 of the Principal Act , the following section is inserted in Division 1: 80AClaim for compensation For the purposes of this Division, a claim for compensation is a claim for compensation by a worker against an employer in respect of an injury for which the worker has not previously made a claim for compensation against that or any other employer. 50Section 81 amended (Commencement of weekly payments) Section 81 of the Principal Act is amended as follows: (a) by omitting from subsection (2) "Subject to subsection (3) , an" and substituting "An"; (b) by omitting subsection (3) and substituting the following subsection: (3)  Weekly payments payable under this section are payable from the date on which the claim for compensation was given to the employer under section 34 . 51Section 81AA substituted Section 81AA of the Principal Act is repealed and the following section is substituted: 81AAPayments not admission of liability (1)  Where an employer who has received a claim for compensation (whether the employer has accepted liability or not) makes weekly payments under section 81(1) , those payments – (a) are not, in any subsequent proceedings under this Act, to be construed as an admission of liability; and (b) are to be taken in reduction of the amount of any liability of the employer in respect of the injury; and (c) subject to subsections (2) and (3) , are not recoverable from the worker by the employer; and (d) are recoverable from the employer’s insurer except for the amount payable by the employer under section 97(1A) and (1B) . (2)  The Tribunal may order that an employer be entitled to recover from a worker any weekly payments made by the employer to the worker as required by section 81(1) if the Tribunal is satisfied that – (a) the worker’s claim for compensation was fraudulent; or (b) the worker obstructed or otherwise delayed the determination of the claim by the employer or the employer’s insurer and the employer’s liability to make the payments is subsequently determined not to exist; or (c) the claim was in respect of an injury to which section 25(2) applies. (3)  An employer may deduct from a worker’s sick leave entitlements any period during which the worker was paid compensation by way of weekly payments or other benefits if liability to make those payments or pay those benefits is subsequently determined not to exist. (4)  This section does not apply to a claim in respect of which section 69(13) applies. 52Section 81A amended (Disputes of liability for weekly payments and other benefits) Section 81A of the Principal Act is amended as follows: (a) by omitting subsections (1) and (2) and substituting the following subsections: (1)  An employer who disputes liability to pay compensation by way of weekly payments for an injury referred to in section 81 (1) or benefits under Division 2 of Part VI must, within 28 days of receiving the claim for compensation in respect of the injury to the worker – (a) serve the worker with written notice that the employer disputes liability – (i) to pay compensation by way of weekly payments; or (ii) to pay any benefits payable under Division 2 of Part VI in respect of the injury; and (b) inform the worker of the reasons for disputing liability; and (c) refer the matter to the Tribunal. (2)  The referral of a matter to the Tribunal is to be accompanied by the prescribed fee. (b) by omitting from subsection (5) "or section 81AA (3) " first occurring; (c) by omitting from subsection (5) "of this section or section 81AA (3) , as the case may be". 53Section 81AB amended (Failure to dispute liability) Section 81AB of the Principal Act is amended by omitting " section 81AA or". 54Section 81B substituted Section 81B of the Principal Act is repealed and the following section is substituted: 81BPayment of weekly payments (1)  Weekly payments payable to a worker under this Act are payable on the days on which, and at the intervals, the worker is normally paid salary or wages by the worker’s employer or, if the worker is no longer employed by that employer, on the days on which, and at the intervals, the worker would normally have been paid salary or wages by the employer if the worker had continued in that employment. (2)  An employer required to make weekly payments must do so in accordance with subsection (1) .

Penalty:  Fine not exceeding 10 penalty units.

55Section 85 amended (Medical examination of workers) Section 85 of the Principal Act is amended as follows: (a) by inserting the following subsection after subsection (3) : (3AA)  If the examining practitioner is not the worker’s general practitioner, the party who selected the examining practitioner must provide the worker’s general practitioner with a copy of the examining practitioner’s report within the later of the following: (a) 30 days after the examination is made; (b) 7 days after the party who selected the examining practitioner receives the report.

Penalty:  Fine not exceeding 10 penalty units.

(b) by omitting subsection (3A) and substituting the following subsection: (3A)  If the report of the medical practitioner is not served in accordance with subsection (3) , the report and any evidence of the medical practitioner relating to the examination cannot be used as evidence in respect of a claim for compensation, unless the Tribunal otherwise allows. 56Section 86 amended (Cases in which employer may terminate or reduce payments) Section 86(1) of the Principal Act is amended by omitting paragraph (e) and substituting the following paragraph: (e) a worker’s entitlement to weekly payments has expired as provided by section 69B(2) . 57Section 88 amended (Review of weekly payments) Section 88 of the Principal Act is amended by inserting after subsection (2) the following subsection: (3)  A determination terminating or reducing a weekly payment may be ordered to take effect from the date of the application or any other date the Tribunal determines. 58Section 89 substituted Section 89 of the Principal Act is repealed and the following section is substituted: 89Certain payments not redeemable Liability for weekly payments to a worker for an injury in respect of which an employer is liable to pay compensation in accordance with this Act may not be redeemed by payment of a lump sum unless – (a) the injury in respect of which the claim is made is stable and stationary; and (b) 12 months has elapsed since the date the claim was lodged. 59Section 96A insertedBefore section 97 of the Principal Act , the following section is inserted in Division 1: 96AInterpretation of Division 1 In this Division, wages includes the monetary value of all payments made to a worker, whether in cash or in kind, in return for the worker’s labour and includes the following: (a) any amount paid or payable by way of remuneration to a person holding office under, or in the service of, the Crown; (b) any amount paid or payable to a person or class of persons taken to be a worker under this Act to the extent to which that payment is attributable to labour; (c) any amount paid or payable by a company by way of remuneration to a director or member of the governing body of that company; (d) the value of provision by the employer of meals or sustenance or of the use of premises or quarters as consideration or part consideration for the worker’s services; (e) the value of fringe benefits within the meaning of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth; (f) all superannuation contributions, forming part of the worker’s salary package, made by the employer in respect of the worker –but does not include – (g) any allowance for travelling or accommodation; or (h) any workers’ compensation payment; or (i) any redundancy, severance or termination payment. 60Section 97 amended (Obligation of employers to insure) Section 97 of the Principal Act is amended as follows: (a) by omitting paragraph (b) from subsection (1) and substituting the following paragraph: (b) that indemnifies the employer in respect of any liability arising independently of this Act in respect of an injury suffered by a worker arising out of and in the course of the employment of that worker by the employer; and (b) by omitting subsections (5) , (6) and (7) and substituting the following subsections: (5)  It is a defence to a prosecution for an offence under subsection (4) to show that at the time of the alleged offence the employer believed on reasonable grounds that the employer did not have a liability under this Act in respect of the worker because the worker’s employment was connected with another State. (6)  An employer who applies to a licensed insurer to issue or renew a policy of insurance must, within 60 days after applying, provide the licensed insurer with – (a) an estimate, made to the best of that employer’s knowledge and belief, of the aggregate amount of wages to be paid to workers in the employer’s employment during the period relevant to the determination of the premium payable by the employer for the policy of insurance; and (b) a statement showing the trade, occupation and calling of such workers; and (c) such other information as may be prescribed in the regulations. (7)  Within 60 days after the termination of a policy of insurance, an employer must provide the licensed insurer with – (a) a full and correct statement of the aggregate amount of wages paid to workers in the employer’s employment during the period relevant to the determination of the premium paid by the employer for the policy of insurance; and (b) a statement showing the trade, occupation and calling of such workers; and (c) such other information as may be prescribed in the regulations. (c) by inserting in subsection (8) " subsection (6) or" after "with"; (d) by inserting the following subsections after subsection (9) : (10)  A court that convicts an employer of an offence under subsection (1) , (6) or (7) is to, in addition to any other penalty imposed in respect of the offence, order the employer to pay to the Board an amount equal to the total of any insurance premiums which the court is satisfied the employer has, at any time during the period of 5 years before the conviction, avoided by failing to maintain insurance as required by subsection (1) , failing to provide an estimate or statement as required by subsection (6) or (7) or giving any false information or particular in any such estimate or statement. (11)  In determining the amount under subsection (10) , a court is to take into account any amount payable by the employer to the Nominal Insurer under section 130(1) . 61Section 97AA insertedAfter section 97 of the Principal Act , the following section is inserted in Division 1: 97AAInsurer to give notification of expiry of policy (1)  A licensed insurer must give an employer covered by a policy of insurance written notice of the impending expiry of that policy not less than 28 days before the expiry. (2)  A policy of insurance is taken not to have expired until 28 days after notice in relation to it has been given in accordance with subsection (1) . 62Sections 102A and 102B insertedAfter section 102 of the Principal Act , the following sections are inserted in Division 2: 102AInsurer to provide industry rates A licensed insurer must provide the Board annually, or at such times as the Board directs, details of the industry rates on which the insurer intends to rely in calculating its insurance premiums for the following year. 102BBoard to make available suggested premium rates The Board is to publish and make available to employers and licensed insurers – (a) suggested premium rates for various businesses or groups of businesses; and (b) as soon as practicable after receiving a request to do so, a report containing details of – (i) the actuarial basis on which the suggested premium rates were calculated; and (ii) the claims experience of the various businesses or groups of businesses to which the rates relate so far as that experience is known to the Board. 63Section 105 amended (Granting, &c., of permits) Section 105(2) of the Principal Act is amended as follows: (a) by omitting paragraph (a) and substituting the following paragraph: (a) the employer’s financial history; and (b) by inserting the following paragraphs after paragraph (b) : (ba) the employer’s ability to satisfy such prudential standards as the Board determines; and (bb) the employer’s capacity to provide high-quality injury management to injured workers; and (bc) the employer’s commitment to occupational health and safety; and 64Section 105A insertedAfter section 105 of the Principal Act , the following section is inserted in Division 2: 105AWholly-owned subsidiary (1)  The Board may endorse on a permit the name of one or more wholly-owned subsidiaries of the permit holder. (2)  While the name of a subsidiary is endorsed on a permit, the subsidiary is taken to be covered by the permit. (3)  The Board may at any time amend an endorsement on a permit by adding, altering or deleting the name of a subsidiary. (4)  An amendment to a permit – (a) is made by the Board giving notice of it to the permit holder; and (b) takes effect on the day the notice is given or on a later day specified in the notice. (5)  A company which holds a permit and any subsidiary covered by the permit are jointly and severally liable for any contribution required to be made to any fund by the subsidiary under this Act. (6)  A permit – (a) may be subject to conditions under this Act relating to the obligations of a subsidiary covered by the permit; and (b) may be cancelled or suspended under this Act because of the acts or omissions of the subsidiary. (7)  In this section, wholly-owned subsidiary has the same meaning as in the Corporations Law. 65Section 112 amended (Appeals) Section 112 of the Principal Act is amended as follows: (a) by omitting from subsection (1) "licensed insurer or self-insurer" and substituting "person"; (b) by omitting from subsection (1) "Tribunal" and substituting "Supreme Court"; (c) by omitting from subsection (3) "Tribunal" and substituting "Supreme Court"; (d) by omitting from subsection (4) "Tribunal" and substituting "Supreme Court"; (e) by omitting from subsection (5) "Tribunal" and substituting "Supreme Court"; (f) by omitting subsection (7) . 66Section 114 amended (Returns by licensed insurers and self-insurers) Section 114 of the Principal Act is amended as follows: (a) by omitting subsection (1) and substituting the following subsection: (1)  Every licensed insurer and self-insurer is to provide the Board with such returns, at such times and in such manner, as the Board determines. (b) by omitting paragraph (b) from subsection (2) and substituting the following paragraph: (b) who fails to furnish such a return within such time and in such manner as the Board determines; or (c) by inserting the following subsection after subsection (4) : (5)  For the purposes of this Division, the Crown in right of this State, is taken to be a self-insurer. 67Section 130 substituted Section 130 of the Principal Act is repealed and the following section is substituted: 130Recovery by Nominal Insurer from employer, &c. (1)  An amount that is paid by the Nominal Insurer in satisfaction of a claim, or an order made or judgment obtained, against the Nominal Insurer under this Act, together with its costs, either as agreed or as taxed between party and party, may be recovered by the Nominal Insurer as a debt due to it by action in a court of competent jurisdiction against – (a) the employer, at the date on which the injury was sustained, of the worker by or on behalf of whom, or by or on behalf of whose dependants, the claim or order was made or the proceedings were instituted, except where the employer had, at all relevant times, maintained with a licensed insurer a policy of insurance or indemnity under section 97 ; or (b) the licensed insurer from which that employer obtained a policy of insurance that was in force on the date when the injury, by reason of which the claim or order arose or in respect of which the judgment was obtained, was sustained; or (c) any person against whom that employer or licensed insurer has or had at any time a right of indemnity or contribution, whether under this Act or any other Act or at common law in respect of the relevant injury; or (d) any person liable to pay compensation to the worker in respect of the relevant injury under section 29 . (2)  A person from whom a sum is recoverable by the Nominal Insurer under subsection (1) has the same rights of indemnity or contribution in respect of that sum as that person would have had if he or she had paid the amount referred to in that subsection. (3)  Subject to subsection (4) , where the Nominal Insurer pays an amount under this Act arising out of an employer’s failure to comply with section 97(1) , the employer is liable to pay to the Nominal Insurer, in addition to any other debts due under this Part, an amount equal to the total of any insurance premiums which the Nominal Insurer is satisfied the employer has, at any time during the period of 5 years before the payment was made, avoided by failing to comply with section 97(1) . (4)  Where an employer pays an amount to the Board under section 97(10)  – (a) no further amount is recoverable from the employer by the Nominal Insurer under subsection (3) ; and (b) if the Nominal Insurer has a right of recovery against the employer under subsection (1) , the Board is to pay to the Nominal Insurer the amount paid by the employer. (5)  An employer must pay an amount payable under subsection (3) within such period as the Nominal Insurer determines.

Penalty:  Fine not exceeding 100 penalty units.

(6)  If an employer fails to pay the amount within the period determined, that amount together with interest calculated at the rate referred to in section 92 (2) (b) may be recovered by the Nominal Insurer as a debt due to it in any court of competent jurisdiction. 68Part X, Division 1: Heading inserted Part X of the Principal Act is amended by inserting the following heading before section 132 : Rights to compensation and damages 69Section 134 amended (Right of employer to contribution or indemnity from third parties) Section 134 of the Principal Act is amended as follows: (a) by inserting in subsection (2) "whether arising as a result of a tort or otherwise," after "person,"; (b) by omitting subsection (3) and substituting the following subsection: (3)  Where an injury to a worker arises partly by his or her own fault and partly by the fault of another person, the amount recoverable by the employer under this section by way of contribution or indemnity is reduced to such extent as the Supreme Court thinks just and equitable having regard to the degree of the worker’s responsibility for the injury. 70Part X, Division 2 insertedAfter section 138 of the Principal Act , the following Division is inserted in Part X: Division 2Restrictions on awards of damages 138AAApplication of Division (1)  This Division applies to the awarding of damages against an employer independently of this Act in respect of an injury suffered by a worker if – (a) the injury was caused by the negligence or other tort of, or a breach of contract by, the worker’s employer; and (b) compensation has been paid or is payable in respect of the injury under this Act or would have been paid or be payable but for section 25(2) . (2)  This Division applies even if the damages resulting from the negligence or other tort of the worker’s employer are sought to be recovered in an action for breach of contract or other action. (3)  A reference in this section to the worker’s employer includes a reference to a person for whose acts the employer is vicariously liable. 138ABElection to claim damages (1)  Before commencing proceedings in court for an award of damages, a worker who intends to seek damages against his or her employer must lodge with the Tribunal an election to claim damages. (2)  A worker is not to make an election unless the degree of his or her permanent impairment is agreed by the worker and the employer, or determined by the Tribunal, to be a percentage of the whole person of not less than 30%. (3)  An assessment of the degree of the worker’s impairment is to be carried out in accordance with section 72 or 73 . (4)  An election is to be in a form approved by the Tribunal. (5)  An election is to be lodged within 2 years after the date on which weekly payments first became payable under this Act. (6)  The Tribunal may extend the period within which an election is to be made if – (a) there is a dispute as to the level of the worker’s impairment; or (b) the injury is not stable and stationary. (7)  If there is a dispute as to the degree of impairment, the worker may apply to the Tribunal for a determination of the degree of impairment. (8)  An application under subsection (7) is to be – (a) accompanied by evidence from a medical practitioner that he or she is of the opinion that the degree of impairment is not less than 30% of the whole person; and (b) made not less than 21 days before the expiration of the period referred to in subsection (5) . (9)  If the Tribunal determines the degree of impairment to be not less than 30% of the whole person, the worker is to lodge his or her election within 21 days after the determination. (10)  The Tribunal may refer the question of the degree of impairment to a medical panel in accordance with Part V . (11)  An election to claim damages does not preclude a worker from receiving compensation under this Act. (12)  This section does not apply to proceedings taken by a personal representative or dependant of a worker who has died as a result of an injury for which compensation is payable under this Act. 138ACTribunal to keep records The Tribunal is to keep a record of – (a) any election or application made under section 138AB ; and (b) any agreement as to, or determination of, a worker’s degree of impairment; and (c) any other prescribed matter. 138ADNo damages if claim settled by agreement A worker is not entitled to damages in respect of an injury if the claim has been settled by agreement under section 39 . 71Section 143A insertedAfter section 143 of the Principal Act , the following section is inserted in Part XI: 143ARehabilitation coordinator An employer who employs more than 50 workers must provide a person who is responsible for coordinating the timely and safe return to work of a worker in accordance with the employer’s rehabilitation policy. 72Section 144 amended (Interpretation of Part XII) Section 144(1) of the Principal Act is amended by omitting the definition of notional premium payments and substituting the following definition: notional premium, in relation to the contribution payable by a self-insurer under this Part for any period during a financial year, means a reasonable premium that the Board has determined would have been payable by the self-insurer, in respect of the preceding financial year or the part of that year during which he or she was a self-insurer, for a policy of insurance in accordance with section 97 (1) ; 73Section 147 amended (Contributions to Fund by licensed insurers and self-insurers) Section 147 of the Principal Act is amended by omitting subsections (2) and (3) and substituting the following subsections: (2)  The contribution to be paid by a licensed insurer in respect of each financial year is an amount equal to the greater of the following: (a) the percentage, determined by the Minister on the recommendation of the Board, of the premium income of the licensed insurer in respect of that financial year; (b) the prescribed amount. (3)  The contribution to be paid by a self-insurer in respect of each financial year is an amount equal to the greater of the following: (a) the percentage, determined by the Minister on the recommendation of the Board, of the notional premium of the self-insurer in respect of that financial year; (b) the prescribed amount. 74Part 12A insertedAfter section 148 of the Principal Act , the following Part is inserted: PART 12AInfringement notices 148AService of infringement notice (1)  An authorized officer may serve an infringement notice on a person, other than a person under the age of 16 years, if of the opinion that the person has committed a prescribed offence. (2)  An infringement notice is not to relate to 4 or more offences. 148BForm of infringement notice (1)  An infringement notice is to – (a) be in a form approved by the Director; and (b) specify – (i) the offence to which it relates; and (ii) the prescribed penalty for that offence; and (iii) the total amount payable; and (iv) the place at which the penalty must be paid; and (v) any other prescribed details. (2)  An infringement notice is to state that the person on whom it is served may disregard the notice but that on doing so he or she may be prosecuted for the offence to which the notice relates. 148CAcceptance of infringement notice A person may accept an infringement notice by – (a) paying the total amount payable to a clerk of petty sessions within 21 days after being served with the notice; or (b) lodging at the place specified in the notice within 21 days after being served with the notice a written undertaking to pay the amount payable. 148DExtension of acceptance period If an infringement notice is not accepted before the period referred to in section 148C , a clerk of petty sessions or the Director may allow an additional period of 14 days commencing on that expiry for the acceptance of that notice. 148EPayment (1)  A person who undertakes under section 148C(b) to pay any amount payable under an infringement notice may make representations to the Director in relation to the person’s ability to pay the amount. (2)  The Director is to take the person’s representations into account before determining the period within which the amount is to be paid. (3)  The Director may determine the period, not exceeding 60 days from the day on which the notice was served, within which the amount must be paid. (4)  If a person fails to pay any amount in accordance with an undertaking, the same proceedings may be taken against the person in respect of the amount remaining outstanding as if it were a penalty imposed on the person on summary conviction. 148FPayments to Board Any payment in respect of an infringement notice is to be made to the Board. 148GEffect of acceptance (1)  The acceptance of an infringement notice is not an admission of liability in any civil proceedings. (2)  Proceedings against a person for an offence to which an infringement notice relates that has not been withdrawn must not be brought – (a) if the person accepts the infringement notice; or (b) within – (i) 28 days after the notice was served, if the person has not been allowed an additional period under section 148D ; or (ii) 42 days after the notice was served, if the person has been allowed an additional period under section 148D . 148HWithdrawal of infringement notice (1)  The Director may withdraw an infringement notice served on a person if of the opinion that – (a) the infringement notice should not have been served; or

(b) the person should be proceeded against for the offence to which the notice relates. (2)  An infringement notice may be withdrawn whether or not it has been accepted. (3)  An infringement notice is to be withdrawn by serving on a person a notice stating that the infringement notice has been withdrawn. (4)  The Director must repay to a person any amount paid by that person in respect of an infringement notice that is withdrawn. 148ICertain evidence not admissible Evidence of the service or withdrawal of an infringement notice is not admissible in any proceedings for the offence to which the notice relates. 75Section 151 amended (Powers of authorized officers) Section 151 of the Principal Act is amended as follows: (a) by omitting subsection (1) and substituting the following subsection: (1)  An authorized officer may, for the purposes of ascertaining whether the provisions of this Act are being complied with – (a) require an employer, licensed insurer or other person, who has custody or control of any record, book or document, to produce that record, book or document; and (b) require the employer, licensed insurer or other person to furnish such particulars in relation to a record, book or document as the authorized officer may consider necessary; and (c) examine, copy and take extracts from a record, book or document or require the employer, licensed insurer or other person to provide a copy of, or extract from, the record, book or document; and (d) take photographs, films or video or audio recordings; and (e) question a person either alone or in the presence of any other person, as the authorized officer thinks fit, with respect to any claim for compensation, any alleged breach of this Act or any policy of insurance or record required to be maintained under this Act and require that person to answer the questions put by the authorized officer; and (f) exercise such other powers as may be prescribed. (b) by omitting subsection (3) ; (c) by omitting from subsection (4) "or licensed insurer" and substituting ", licensed insurer or other person"; (d) by omitting from subsection (6) "or a licensed insurer shall" and substituting ", licensed insurer or other person must". 76Section 155 repealed Section 155 of the Principal Act is repealed. 77Section 161A substituted Section 161A of the Principal Act is repealed and the following sections are substituted: 161ATime for instituting proceedings for offences (1)  Subject to subsection (2) , notwithstanding anything in any other Act, proceedings for an offence against this Act may be instituted at any time within 12 months after the occurrence of the act or omission alleged to constitute the offence. (2)  Proceedings for an offence against section 97(1) or (7) may be instituted at any time within 24 months after the failure to maintain insurance as required by subsection (1) of that section, the failure to provide an estimate or statement as required by subsections (6) and (7) of that section or the giving of any false information or particular in any such estimate or statement. 161BCodes of practice (1)  For the purposes of providing practical guidance to any person or class of person providing a service under this Act, the Minister may approve a code of practice. (2)  A code of practice may – (a) consist of a code, service standard, rule or provision relating to services provided under this Act, prepared or adopted by the Board; and (b) apply, incorporate or refer to any document formulated or published by any body or authority as in force at the time the code of practice is approved or as amended, formulated or published from time to time. (3)  The Minister may approve a revision of the whole or part of a code of practice or revoke a code of practice. (4)  Before giving approval under subsection (3) , the Minister must consult with any organisation the Minister considers appropriate having regard to the application of the code of practice. (5)  The Minister must give notice in the Gazette of – (a) the approval of a code of practice; or (b) the approval of the revision of the whole or part of a code of practice; or (c) the revocation of a code of practice. (6)  A notice under subsection (5) is not a statutory rule within the meaning of the Rules Publication Act 1953 . (7)  The Minister must cause to be made available in the Department for inspection by members of the public without charge during normal office hours a copy of – (a) every approved code of practice; and (b) if an approved code of practice has been revised and the revision has been approved, the approved code of practice as so revised; and (c) if an approved code of practice applies, incorporates or refers to any other document, that other document. (8)  An approved code of practice has effect on the day on which notice of the approval is published in the Gazette. (9)  An approved code of practice ceases to have effect on the day on which notice of the revocation of the code is published in the Gazette. (10)  A person is not liable to any civil or criminal proceedings merely because the person fails to observe any provision of a code of practice approved under this section. 78Section 162 amended (Regulations) Section 162 of the Principal Act is amended by inserting after subsection (4) the following subsection: (5)  The regulations may provide for the charging of fees in respect of any thing done under or for the purposes of this Act. 79Schedule 1 amended (Provisions with respect to membership of Workplace Safety Board of Tasmania) Schedule 1 to the Principal Act is amended as follows: (a) by omitting the heading and substituting the following heading: Provisions with respect to membership of Board (b) by omitting from clause 1 "referred to in section 9 (1) (a) , (b) , (c) , (e) or (f) "; (c) by omitting subclause (1) from clause 5 ; (d) by omitting from clause 5(2)(b) " section 9 (1) (b) , (c) , (e) or (f) " and substituting " section 9(1)(b) , (c) , (d) , (e) or (f) "; (e) by omitting from clause 5(3) " section 9 (1) (b) , (c) , (e) or (f) " and substituting " section 9(1)(b) , (c) , (d) , (e) or (f) "; (f) by omitting from clause 5(4) "referred to in section 9 (1) (a) , (b) , (c) , (e) or (f) "; (g) by omitting from clause 6 "referred to in section 9 (1) (a) , (b) , (c) , (e) or (f) ". 80Schedule 2 amended (Provisions with respect to meetings of Workplace Safety Board of Tasmania) Schedule 2 to the Principal Act is amended as follows: (a) by omitting the heading and substituting the following heading: Provisions with respect to meetings of Board (b) by omitting from clause 2(1) "shall" and substituting ", of whom at least one is a member nominated under paragraph (b) of section 9(1) and at least one is a member nominated under paragraph (c) of that section,"; (c) by inserting the following subclause after subclause (2) in clause 2 : (2A)Only those members of the Board nominated under section 9(1)(b) or (c) are entitled to vote at a meeting of the Board. (d) by omitting from clause 2(3) "voting" and substituting "entitled to vote". 81Schedule 10 insertedAfter Schedule 9 to the Principal Act , the following Schedule is inserted: Schedule 10Savings and transitional provisions in relation to Workers Rehabilitation and Compensation Amendment Act 2000

Section 8(4)

1.   Interpretation In this Schedule – commencement day means the day on which the Workers Rehabilitation and Compensation Amendment Act 2000 commenced; WorkCover Tasmania Board means the WorkCover Tasmania Board established under section 8 ; Workplace Safety Board means the Workplace Safety Board of Tasmania established under section 8 , as in force immediately before the commencement day. 2.   Acts, &c., done by or to Workplace Safety Board All acts, matters and things done or omitted to be done by, or done or suffered in relation to, the Workplace Safety Board before the commencement day have, on and after that day, the same force and effect as if they had been done or omitted to be done by, or done or suffered in relation to, the WorkCover Tasmania Board. 3.   Property and rights, &c. On the commencement day, the property and rights of the Workplace Safety Board vest in the WorkCover Tasmania Board and the liabilities of the Workplace Safety Board become the liabilities of the WorkCover Tasmania Board. 4.   Money and claims On the commencement day – (a) all money, debts and claims, liquidated or unliquidated, that, immediately before that day, was or were payable to, due to or recoverable by the Workplace Safety Board are taken to be money, debts or claims payable to, due to or recoverable by the WorkCover Tasmania Board; and (b) all money, debts and claims, liquidated or unliquidated, that, immediately before that day, was or were payable by, due from, or recoverable against the Workplace Safety Board are taken to be money, debts or claims payable by, due from or recoverable against the WorkCover Tasmania Board. 5.   Legal proceedings by or against the Board (1)On and after the commencement day, any legal proceedings instituted by or against the Workplace Safety Board before, and pending immediately before, that day may be continued by or against the WorkCover Tasmania Board. (2)On and after the commencement day, any legal or other proceedings which may, immediately before that day, have been instituted or continued by or against the Workplace Safety Board may be instituted or continued by or against the WorkCover Tasmania Board. (3)On and after the commencement day, a judgment or order of a court obtained in legal proceedings by or against the Workplace Safety Board and not executed or satisfied before that day may be enforced by or against the WorkCover Tasmania Board. 6.   Contracts All contracts, agreements, arrangements and undertakings which were entered into by the Workplace Safety Board before, but which were not performed or discharged by, the commencement day are, on and after that day, taken to have been entered into by the WorkCover Tasmania Board. 7.   Documents On and after the commencement day – (a) any document which was addressed to, and which was purported to have been served on or notified to, the Workplace Safety Board and which had not ceased to have effect before that day, is taken to have been served on or notified to the WorkCover Tasmania Board; and (b) any document which was addressed to, and which was purported to have been served on or notified to, a person by or on behalf of the Workplace Safety Board and which had not ceased to have effect before that day, is taken to have been served on or notified to that person by the WorkCover Tasmania Board. 8.   References to Workplace Safety Board On and after the commencement day, a reference to the Workplace Safety Board in any Act, law, instrument or document is taken to be a reference to the WorkCover Tasmania Board. 9.   Temporary performance of functions, &c., of WorkCover Tasmania Board Until all members of the WorkCover Tasmania Board are appointed under section 9 , or for a period of 2 months after the commencement day, whichever is the earlier, the Chief Executive is to perform the functions and exercise the powers of that Board. 10.   Claims for compensation (1)Subject to subclause (3) , all claims for compensation and claims for damages made against an employer independently of this Act in respect of an injury which occurred before the commencement day and not finally determined before that day are, on and after that day, to be continued and determined in accordance with this Act as in force immediately before that day. (2)For the purposes of this clause, a claim for compensation includes any subsequent claim arising from the injury in respect of which the claim for compensation was made. (3)The amendments to this Act made by sections 35(b), 40, 41, 42, 49, 54, 55 and 57 of the Workers Rehabilitation and Compensation Amendment Act 2000 apply to all claims for compensation not finally determined before the commencement day. 11.   Licences and permits A licence or permit granted by the Workplace Safety Board and in force immediately before the commencement day is, on and after that day, taken to be a licence or permit granted by the WorkCover Tasmania Board. 12.   Notional premium payments A notional premium payment determined by the Workplace Safety Board before the commencement day is, on and after that day, taken to have been determined by the WorkCover Tasmania Board. PART 3Workplace Health and Safety Act 1995 Amended82Principal ActIn this Part, the Workplace Health and Safety Act 1995 is referred to as the Principal Act. 83Section 3 amended (Interpretation) Section 3(1) of the Principal Act is amended by omitting the definition of Board and substituting the following definition: Board means the WorkCover Tasmania Board established under the Workers Rehabilitation and Compensation Act 1988 ; 84Part 2: Heading amended Part 2 of the Principal Act is amended by omitting "FUNCTIONS AND POWERS OF CHIEF EXECUTIVE AND WORKPLACE SAFETY BOARD OF TASMANIA" from the heading to that Part and substituting "FUNCTIONS AND POWERS OF CHIEF EXECUTIVE AND BOARD". 85Schedule 3 amended (Savings and transitional provisions) Schedule 3 to the Principal Act is amended as follows: (a) by omitting from clause 2 "Workplace Safety Board of Tasmania" and substituting "WorkCover Tasmania Board"; (b) by omitting from clause 3(a) "Workplace Safety Board of Tasmania" and substituting "WorkCover Tasmania Board"; (c) by omitting from clause 3(b) "Workplace Safety Board of Tasmania" and substituting "WorkCover Tasmania Board"; (d) by omitting from clause 4 "Workplace Safety Board of Tasmania" and substituting "WorkCover Tasmania Board".

[Second reading presentation speech made in:

House of Assembly on 23 NOVEMBER 2000

Legislative Council on 29 NOVEMBER 2000]