EXPLANATORY STATEMENT
Issued by the authority of the
Minister for Employment and Workplace Relations
Safety, Rehabilitation and Compensation Act 1988
Definition of ‘Employee’ - subsection 5(6)
The Safety, Rehabilitation and Compensation Act 1988 (the Act) provides workers’ compensation coverage for Commonwealth employees.
Section 5 defines who is an “employee” for the purposes of the Act. Under paragraph 5(6)(a) of that definition, the Minister can declare that persons, being persons who engage in activities or perform acts at the request or direction, for the benefit of the Commonwealth, a Commonwealth authority or licensed corporation or under a requirement made by or under a law of the Commonwealth, are taken to be employed by the Commonwealth or that authority or corporation for the purposes of the Act.
This declaration seeks to provide workers’ compensation coverage for persons who, for the benefit of the Commonwealth or a Commonwealth authority or a licensed corporation, at the direct or indirect request of, or at the direction of, the Commonwealth or a Commonwealth authority or licensed corporation, participate in relief missions in relation to areas affected by the earthquake and tsunami in the Indian Ocean on 26 December 2004.
Coverage would apply to acts performed in Australia and overseas, pursuant to arrangements made with the Commonwealth, a Commonwealth authority or a licensed corporation, for which those persons in Schedule 1 are not covered by an alternative workers compensation scheme to the Safety, Rehabilitation and Compensation Act 1988.
It is appropriate that persons who undertake such missions for the benefit of and at the request of the Commonwealth, a Commonwealth authority or licensed corporation have workers’ compensation coverage for relief missions undertaken. Examples of Commonwealth agencies that may engage persons who would be covered by this declaration include AusAID, the Australian Defence Force, the Department of Health and Ageing and the Attorney-General’s Department (e.g Emergency Management Australia).
The declaration would also cover persons requested to participate in relief missions at the request of Non-government organisations (NGOs), but only where the relevant NGO had been acting on a request by the Commonwealth, a Commonwealth authority or licensed corporation to undertake a relief mission.
Accordingly the declaration by the Minister for Employment and Workplace Relations under the Act will ensure that it applies to such persons when they perform relevant acts.
The Department of the Prime Minister and Cabinet, the Department of Finance and Administration, the Department of Foreign Affairs and Trade, the Attorney-General’s Department, the Department of Health and Ageing, and Comcare were either consulted in the preparation of this instrument or participated in an Interdepartmental Committee which approved the making of this instrument.
This declaration will take effect on 5 January 2005.
Overview
The Safety, Rehabilitation and Compensation Act 1988, enacted to provide workers’ compensation coverage for Commonwealth employees, was amended to address a specific gap in coverage for individuals participating in relief missions following the 2004 Indian Ocean earthquake and tsunami. This amendment, declared by the Minister for Employment and Workplace Relations, ensures that persons engaged in such missions at the request or direction of the Commonwealth, a Commonwealth authority or a licensed corporation, are deemed employees for the purposes of the Act. This extension of coverage is intended to protect individuals who perform acts in Australia and overseas for the benefit of the Commonwealth or related entities, provided they are not covered by another workers' compensation scheme. The policy objective is to provide necessary workers' compensation to those participating in critical relief missions, thereby acknowledging their service and ensuring their protection during such operations.
Scope and Application
The Safety, Rehabilitation and Compensation Act 1988, as amended by the explanatory statement F2005L00002, extends workers' compensation coverage to certain individuals participating in relief missions in relation to the Indian Ocean earthquake and tsunami of 26 December 2004. This Act applies to persons who engage in activities or perform acts at the request or direction of the Commonwealth, a Commonwealth authority, or a licensed corporation, for the benefit of these entities, and who are not covered by an alternative workers' compensation scheme. The coverage includes acts performed both within Australia and overseas, provided these individuals are not already protected under another scheme. The Act ensures that individuals participating in relief missions on behalf of agencies such as AusAID, the Australian Defence Force, the Department of Health and Ageing, and Emergency Management Australia, among others, receive necessary compensation. This includes those who respond to requests from non-government organisations, provided these NGOs were acting on behalf of the Commonwealth or its authorities. The declaration by the Minister for Employment and Workplace Relations, effective from 5 January 2005, ensures the Act's provisions apply to these specific circumstances.
Key Provisions
The Safety, Rehabilitation and Compensation Act 1988, through Section 5, provides an important definition of who is considered an "employee" for the purposes of the Act. Specifically, subsection 5(6)(a) allows the Minister for Employment and Workplace Relations to declare that certain persons are taken to be employed by the Commonwealth or a related authority or corporation for the purposes of the Act. This declaration is particularly relevant for individuals who engage in activities or perform acts at the request or direction of the Commonwealth, a Commonwealth authority, or a licensed corporation, and who benefit the Commonwealth or those entities. This includes participation in relief missions in relation to areas affected by the earthquake and tsunami in the Indian Ocean on 26 December 2004, both in Australia and overseas.
Under this Act, the Minister’s declaration ensures that persons participating in such relief missions, who are not covered by an alternative workers' compensation scheme, are provided with workers' compensation coverage. This coverage applies to activities performed at the request or direction of the Commonwealth, a Commonwealth authority, or a licensed corporation, including instances where the request comes from a non-government organisation (NGO) acting on behalf of these entities. The declaration extends coverage to Commonwealth agencies such as AusAID, the Australian Defence Force, the Department of Health and Ageing, and Emergency Management Australia.
The obligations imposed by the Act on the parties it governs include the necessity for the Minister to formally declare the inclusion of these individuals under the Act. Additionally, the Act requires that the participating persons are involved in activities at the request or direction of the Commonwealth or its authorities, and that they perform acts for the benefit of the Commonwealth or these entities. The Act also requires that there is no alternative workers' compensation scheme covering these individuals, thus ensuring they receive appropriate coverage under the Act.
Any failure to comply with the Act’s requirements or misuse of the declared coverage may result in legal consequences. While specific penalties are not detailed within this explanatory statement, breaches of the Act can lead to civil or criminal liabilities. The consequences could include financial penalties, legal action, or other enforcement measures as stipulated by relevant laws. The Act ensures that the participants in these relief missions are protected, thereby holding the participating entities accountable for their obligations under the Act.