EXPLANATORY STATEMENT
Issued by the authority of the Minister for Small and Family Business,
the Workplace and Deregulation
Safety, Rehabilitation and Compensation Act 1988
Subsection 100(1)
Safety, Rehabilitation and Compensation
(Licence Eligibility—DHL Express (Australia) Pty Ltd) Declaration 2018
The Safety, Rehabilitation and Compensation Act 1988 (‘the Act’) establishes the Commonwealth workers’ compensation and rehabilitation scheme.
Under Part VIII of the Act, an ‘eligible corporation’ may apply to the Safety, Rehabilitation and Compensation Commission (‘the Commission’) for a licence to:
(a) accept liability to pay workers’ compensation in respect of its employees in accordance with the Act; and
(b) manage the claims of its employees in accordance with the Act.
An ‘eligible corporation’ is a corporation that has been declared to be such by the Minister for Small and Family Business, the Workplace and Deregulation under subsection 100(1) of the Act. Subsection 100(1) of the Act provides that if the Minister is satisfied that it would be desirable for the Act to apply to employees of a corporation that:
(a) is, but is about to cease to be, a Commonwealth authority; or
(b) was previously a Commonwealth authority; or
(c) is carrying on business in competition with a Commonwealth authority or with another corporation that was previously a Commonwealth authority;
the Minister may, by legislative instrument, declare the corporation to be eligible to be granted a licence under Part VIII of the Act.
DHL Express (Australia) Pty Ltd (ACN 001 112 929) (‘DHL Express’) is a corporation carrying on business in competition with a current or former Commonwealth authority, including the Australian Postal Corporation. DHL Express has requested that the Minister declare it to be an eligible corporation under subsection 100(1) of the Act.
Applications for declarations under subsection 100(1) of the Act are assessed against the following principles:
(a) the likely impact on the integrity of the Commonwealth workers’ compensation scheme;
(b) the likely impact on the operations of the state and territory worker’s compensation schemes; and
(c) the scope of the corporations’ operations across jurisdictions (based on a minimum threshold of two jurisdictions).
Having assessed the application against the principles, the Minister is satisfied that it would be desirable for the Act to apply to the employees of DHL Express.
The declaration provides that DHL Express is eligible to be granted a licence under Part VIII of the Act.
If the Commission subsequently decides to grant an eligible corporation a licence authorising it to accept liability to pay compensation and other amounts under the Act in respect of a particular injury, loss or damage suffered by, or in respect of the death of, some or all of its employees, then:
(a) no law of a State or Territory relating to workers’ compensation applies to the corporation in respect of such injury, loss, damage or death; and
(b) any liability or obligation of the corporation under a law of a State or Territory in respect of such injury, loss or damage suffered, or death occurring, before the licence came into force is unaffected
The Office of Best Practice Regulation was consulted regarding this declaration and indicated that a Regulation Impact Statement was not required for this declaration (OBPR ID Number 23425).
Consultation was undertaken with Comcare. Wider consultation was not undertaken as this declaration was made at the request of DHL Express, and the effect of this declaration is to allow DHL Express to make an application for the grant of a licence. Any application for a grant of a licence will be made by DHL Express to the Commission under section 102 of the Act. The Commission, which will decide whether to grant the licence, includes: 3 members nominated by the Australian Council of Trade Unions; a member who, in the Minister’s opinion, represents licensees; and the Chief Executive Officer of Safe Work Australia.
This declaration is a legislative instrument for the purposes of the Legislation Act 2003. This declaration takes effect on the day after it is registered on the Federal Register of Legislation.
The Hon Craig Laundy
Minister for Small and Family Business, the Workplace and Deregulation
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Safety, Rehabilitation and Compensation
(Licence Eligibility—DHL Express (Australia) Pty Ltd) Declaration 2018
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Safety, Rehabilitation and Compensation (Licence Eligibility—DHL Express (Australia) Pty Ltd) Declaration 2018 is made in accordance with subsection 100(1) of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’). The Act establishes the Commonwealth workers’ compensation and rehabilitation scheme.
Under Part VIII of the Act, an ‘eligible corporation’ may apply to the Safety, Rehabilitation and Compensation Commission (‘the Commission’) for a licence to:
(a) accept liability to pay workers’ compensation in respect of its employees in accordance with the Act; and
(b) manage the claims of its employees in accordance with the Act.
An ‘eligible corporation’ is a corporation that has been declared to be such by the Minister for Small and Family Business, the Workplace and Deregulation under subsection 100(1) of the Act.
If the Minister makes a declaration that a corporation is an eligible corporation under subsection 100(1), then the Commission may, on application made in accordance with section 102 of the Act, grant the eligible corporation a licence to accept liability to pay compensation and other amounts under the Act in respect of a particular injury, loss or damage suffered by, or in respect of the death of, some or all of its employees, for a specified period. If a licence is granted, the Act will apply to the corporation from the date the licence comes into force. Any liability or obligation of the corporation under a law of a State or Territory in relation to the injury or death of an employee, or any loss or damage suffered by an employee, before the licence comes into force is not affected.
Declaration of DHL Express (Australia) Pty Ltd as an ‘eligible corporation’
The declaration has the result that DHL Express (Australia) Pty Ltd (‘DHL Express’) is eligible to be granted a licence under Part VIII of the Act. A licence will only be granted if the Commission is satisfied that it is appropriate to do so.
Human rights implications
Article 9 of the International Covenant on Economic, Social and Cultural Rights provides for the right of everyone to social security, including social insurance. General Comment 19 by the Committee on Economic, Social and Cultural Rights sets out the essential elements of the right to social security, including that ‘States parties should … ensure the protection of workers who are injured in the course of employment or other productive work’.[1]
Workers’ compensation legislation ensures the protection of injured workers by way of compensation payments, payment of medical expenses, permanent impairment benefits and other benefits, such as access to rehabilitation support. Workers’ compensation is generally available instead of the right of employees to sue their employer for these costs. In Australia, there are separate but largely comparable workers’ compensation jurisdictions in the Commonwealth, State and Territory jurisdictions.
The effect of this declaration is that DHL Express is eligible to make an application to the Commission to be granted a licence. Members of the Commission include 3 members nominated by the Australian Council of Trade Unions; a member who, in the Minister’s opinion, represents licensees; and the Chief Executive Officer of Safe Work Australia.
Once this declaration is made, if DHL Express makes an application for the grant of a licence to the Commission under section 102 of the Act, the Commission may grant the licence. In order to grant DHL Express a licence, the Commission will be required to consider if it is appropriate to grant DHL Express a licence. To be satisfied that it is appropriate to grant DHL Express a licence, the Commission must be satisfied, among other things, that DHL Express has sufficient resources to fulfil the responsibilities imposed on it under the licence, has the capacity to meet the Commission’s standards for the rehabilitation and work health and safety of DHL Express employees, and that the grant of the licence will not be contrary to the interests of DHL Express employees (section 104 of the Act).
This declaration engages but does not limit human rights. Its effect is that it allows DHL Express to make an application for the grant of a licence, to be considered by the Commission. As a result, making the declaration does not affect the workers’ compensation rights of DHL Express employees and so does not limit the right to social security.
Conclusion
The Legislative Instrument is compatible with human rights because it does not negatively impact on human rights.
The Hon Craig Laundy
Minister for Small and Family Business, the Workplace and Deregulation
[1] Committee on Economic, Social and Cultural Rights, General Comment 19: The Right to Social Security (art. 9), U.N. Doc E/C.12/GC/19 (2008), [17].