Accident Compensation (Amendment) Act 2005
Act No.
table of provisions
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Part 1—Preliminary
1.Purpose
2.Commencement
Part 2—Accident Compensation Act 1985
Division 1—Non-WorkCover Employers
3.Amendment of sections 141, 142 and 142C
4.Amendment of section 148
5.New sections 151A and 151B inserted
151A.Provisions to apply where subsidiary of body corporate becomes a non-WorkCover employer
151B.Non-WorkCover employer ceases to be a self-insurer
6.New Part VIA inserted
Part VIA—NON-WORKCOVER EMPLOYERS
164.Definitions
165.Authority retains or assumes liability for tail claims
166.Actuary to assess tail claims liabilities
167.Obligation of non-WorkCover employer who was insured under a WorkCover insurance policy
168.Obligation of non-WorkCover employer who was a selfinsurer or a subsidiary of a self-insurer to which thisPart applies
169.Annual assessment of tail claims liabilities
170.Adjustment of payments as at the end of the third year
171.Adjustment of payments as at the end of the sixth year
172.Provision of guarantees
173.Review of final revised assessment at the end of the liability period
174.Liability of Authority under this Part
175.Legal proceedings excluded
176.Application of Part if non-WorkCover employer ceases to be a non-WorkCover employer
Division 2—Provisions relating to the Crown
7.New section 14A inserted
14A.Act binds the Crown
8.New sections 250B and 250C inserted
250B.Responsible agency for the Crown
250C.Proceedings against successors to public bodies
Division 3—Secrecy Provisions
9.Amendment of section 5—Definitions
10.Amendment of section 155—Secrecy provisions
11.Amendment of section 243—Secrecy provisions applying to Actexcept Parts 6 and 7
12.Amendment of section 244—Secrecy provisions applying to Part7
Division 4—Amendments relating to Common Seals
13.Amendment of section 18
14.Consequential amendments
15.Amendment of section 52A
16.New section 52LA inserted—Signature
52LA.Signature
Division 5—Amendments relating to Compensation for Hearing
Loss
17.Amendment of section 89—Further loss of hearing
18.Amendment of section 91—Assessment of impairment
19.Amendment of section 98C—Compensation for noneconomic loss
20.Amendment of section 270
Division 6—Amendments relating to Weekly Payments
21.Amendment of section 39—Jurisdiction—general
22.Amendment of section 111—Worker's capacity for work
23.Amendment of sections 114 and 114B—Termination or alteration of weekly payments
Division 7—Transitional Provisions
24.New Division 5 inserted into Part IX
Division 5—Accident Compensation (Amendment)
Act 2005
284.Sections 89, 91 and 98C—(claims for compensation for further loss of hearing)
285.Sections 111, 114 and 114B
Division 8—Section 85 Provision
25.New section 252G inserted
252G.Supreme Court—limitation of jurisdiction
Part 3—Accident Compensation (Workcover Insurance) Act 1993
Division 1—Rateable Remuneration
26.Amendment of section 8—Rateable remuneration
Division 2—Consequential Amendments
27.Consequential amendments
Part 4—Occupational Health and Safety Act2004
28.Amendment of section 5—Definitions
29.New sections 151A to 151F inserted
151A.Contributions by non-WorkCover employers to the WorkCover Authority Fund
151B.Provision of return by non-WorkCover employers
151C.Authority may require non-WorkCover employer to provide further information
151D.Authority may require information from non-WorkCoveremployers
151E.Authority may require non-WorkCover employer to facilitate the provision of information
151F.Application of sections 151A to 151E
Part 5—Transport Accident Act 1986
Division 1—Amendments relating to Official Seal
30.Amendment of section 10
31.Consequential amendments
Division 2—Statute Law Revision
32.Statute law revision
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Endnotes
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551319B.I1-17/5/2005BILL LA INTRODUCTION 17/5/2005
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A BILL
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551319B.I1-17/5/2005BILL LA INTRODUCTION 17/5/2005
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to amend the Accident Compensation Act 1985, the Accident Compensation (WorkCover Insurance) Act 1993, the Occupational Health and Safety Act 2004 and the Transport Accident Act 1986 and for other purposes.
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551319B.I1-17/5/2005BILL LA INTRODUCTION 17/5/2005
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Accident Compensation (Amendment) Act 2005
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551319B.I1-17/5/2005BILL LA INTRODUCTION 17/5/2005
Act No.
Accident Compensation (Amendment) Act 2005
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551319B.I1-17/5/2005BILL LA INTRODUCTION 17/5/2005
Act No.
Accident Compensation (Amendment) Act 2005
The Parliament of Victoriaenacts as follows:
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551319B.I1-17/5/2005BILL LA INTRODUCTION 17/5/2005
Part 5—Transport Accident Act 1986
Accident Compensation (Amendment) Act 2005
Act No.
Part 1—Preliminary
1.Purpose
The purpose of this Act is—
(a)to amend the Accident Compensation Act 1985—
(i)to provide for employers who exit the WorkCover Scheme and to deal with the liability for, and the responsibility for management of, the tail claims of such employers;
(ii)to expressly bind the Crown;
(iii) to revise the secrecy provisions;
(iv)to remove the requirements for common seals;
(v)to clarify the operation of the hearing loss provisions;
(vi)to improve the operation of the provisions relating to weekly payments;
(b)to amend the Accident Compensation (WorkCover Insurance) Act 1993 in relation to rateable remuneration;
(c)to amend the Occupational Health and Safety Act 2004 to require employers who exit the WorkCover Scheme to contribute towards the costs and expenses incurred by the Authority for the provision of occupational health, safety and welfare regulation and related education and prevention services;
(d)to amend the Transport Accident Act 1986 to remove the requirement that the Transport Accident Commission must have an official seal.
2.Commencement
s. 2
(1)This Part, Divisions 2, 4, 6, 7 and 8 of Part 2, Division 2 of Part 3 and Division 1 of Part 5 come into operation on the day after the day on which this Act receives the Royal Assent.
(2)Division 2 of Part 5 is deemed to have come into operation on 2 December 2003.
(3)Division 5 of Part 2 is deemed to have come into operation on 18 November 2004.
s. 2
(4)Divisions 1 and 3 of Part 2, Division 1 of Part 3 and Part 4 come into operation on 1 July 2005.
______
See:
Act No.
10191.
Reprint No. 13
as at
21 December 2004
and amending
Act Nos 60/1996, 107/1997, 95/2003, 102/2004, 107/2004 and 108/2004.
LawToday:
dpc.vic.
gov.au
Part 2—Accident Compensation Act 1985
Division 1—Non-WorkCover Employers
3.Amendment of sections 141, 142 and 142C
s. 3
(1)In section 141(1)(b) of the Accident Compensation Act 1985, after "subsidiaries" insert "which is not a non-WorkCover employer within the meaning of Part VIA".
(2)After section 142(4)(a) of the Accident Compensation Act 1985 insert—
"(aa)is subject to a deemed condition that the body corporate is under a contractual obligation that if it becomes a non-WorkCover employer within the meaning of Part VIA it will make any payments in respect of tail claims liabilities required to be made in accordance with that Part; and".
(3)After section 142C(3)(a) of the Accident Compensation Act 1985 insert—
"(aa)is subject to a deemed condition that the partnership is under a contractual obligation that if it becomes a non-WorkCover employer within the meaning of Part VIA it will make any payments in respect of tail claims liabilities required to be made in accordance with that Part; and".
4.Amendment of section 148
s. 4
After section 148(3)(a)of the Accident Compensation Act 1985 insert—
"(aa)a subsidiary of a holding company that is a holding company that is approved as a self-insurer under this Part becomes a non-WorkCover employer within the meaning of Part VIA;
(ab)a subsidiary to which paragraph (aa) applies ceases to be a non-WorkCover employer within the meaning of Part VIA;".
5.New sections 151A and 151B inserted
After section 151of the Accident Compensation Act 1985 insert—
"151A.Provisions to apply where subsidiary of body corporate becomes a non-WorkCover employer
(1)The Authority must in a review on the ground specified in section 148(3)(aa) determine whether—
(a)the body corporate should retain; or
(b)the Authority should assume—
the liability in respect of the assessed liability within the meaning of section 146, being the liability that the body corporate would have had, if the subsidiary of the body corporate had not become a non-WorkCover employer, in respect of injuries or deaths incurred or suffered by workers employed by the subsidiary and which entitle a worker or a worker's dependants to compensation (whether under this Act, at common law or otherwise) and whether or not a claim for compensation has been made.
(2)If the Authority assumes the liability referred to in sub-section (1)—
(a)Part VIA applies in respect of that liability;
(b)the body corporate must ensure that there are given to the Authority forthwith all claims and other relevant documents relating to claims under this Act that are in the possession of the body corporate in respect of that liability;
(c)a person who, but for this section, would have been required by this Act to lodge a claim for compensation with the body corporate as a self-insurer, may lodge the claim with the Authority;
s. 5
(d)Part IV applies to the Authority as if it were a self-insurer and, in relation to any proceedings to which the body corporate was a party as a self-insurer immediately before the Authority assumed the liability of the body corporate, as if the Authority were that party.
(3)If a subsidiary of a body corporate which is approved as a self-insurer becomes a non-WorkCover employer within the meaning of Part VIA, that subsidiary is for the purposes of this Part deemed not to be a subsidiary of that body corporate for the period that it is a non-WorkCover employerwithin the meaning of Part VIA.
151B.Non-WorkCover employer ceases to be a self-insurer
If a body corporate becomes a non-WorkCover employer, the approval of that body corporate as a self-insurer is revoked as from the exit date within the meaning of section 164.".
6.New Part VIA inserted
s. 6
After Part VI of the Accident Compensation Act 1985 insert—
'Part VIA—NON-WORKCOVER EMPLOYERS
164.Definitions
In this Part—
"actuary" means a fellow or accredited member of the Institute of Actuaries of Australia approved by the Authority;
"available assets" means the portion of the Authority's total assets assessed by an actuary calculated, with reference to the last audited financial statements of the Authority, to be available to fund the tail claims liabilities;
"exit date" means the date on which an employer becomes a non-WorkCover employer;
"initial assessment" means the assessment of tail claims liabilities under section166;
"liability period" means the period of 6years commencing from the exit date;
"non-WorkCover employer" meansan employer who—
(a)on or after the commencement of section 6 of the Accident Compensation (Amendment) Act 2005, becomes licensed under Part VIII of the Safety, Rehabilitation and Compensation Act 1988 of the Commonwealth after a declaration of eligibility under that Part made on the basis that the employer is a corporation carrying on business in competition with a Commonwealth authority or with another corporation that was previously a Commonwealth authority; and
s. 6
(b)would otherwise be required—
(i)to obtain and keep a WorkCover insurance policy; or
(ii)to be approved as a self-insurer; or
(iii)to be a subsidiary of a holding company which is approved to be a self-insurer;
"revised assessment" means the assessment of tail claims liabilities under section169;
"tail claims" means claims whether made before, on or after the exit date—
(a)in respect of injuries or deaths incurred or suffered by workers employed by the non-WorkCover employer while the non-WorkCover employer was—
(i)insured under a WorkCover insurance policy; or
(ii)a self-insurer; or
(iii) a subsidiaryof a self-insurer; and
s. 6
(b)which entitle a worker or the dependants of a worker to compensation whether under this Act, at common law or otherwise;
"tail claims liabilities" meansthe sum of the actuarial value of the current, non-current and contingent liabilities immediately before the exit date in respect of tail claims under this Act of the non-WorkCover employer while the non-WorkCover employer was—
(a)insured under a WorkCover insurance policy; or
(b)a self-insurer; or
(c)a subsidiaryof a self-insurer.
165.Authority retains or assumes liability for tail claims
On the exit date the Authority—
(a)if the non-WorkCover employer was insured under a WorkCover insurance policy, retains—
(i)the liability for; and
(ii)the responsibility for management of—
the tail claims of the non-WorkCover employer; or
(b)if the non-WorkCover employer was a self-insurer, assumes—
s. 6
(i)the liability for; and
(ii)the responsibility for management of—
the tail claims of the non-WorkCover employer; or
(c)if the non-WorkCover employer was a subsidiary of a self-insurer and the Authority has determined to assume liability under section 151A, assumes—
(i)the liability for; and
(ii)the responsibility for management of—
the tail claims of the non-WorkCover employer.
166.Actuary to assess tail claims liabilities
(1)If the non-WorkCover employer was insured under a WorkCover insurance policy, an actuary appointed by the Authority must undertake an assessment of—
(a)the tail claims liabilities; and
(b)the available assets.
(2)If the non-WorkCover employer was a self-insurer or a subsidiary of a self-insurer to which this Part applies, an actuary appointed by the Authority must assess the tail claims liabilities.
(3)If a non-WorkCover employer referred to in sub-section (2) fails to permit the actuary to inspect the books of the non-WorkCover employer to enable that assessment to be made, the tail claims liabilities are deemed to be the amount that the actuary determines to be the tail claims liabilities of the non-WorkCover employer.
s. 6
(4) The non-WorkCover employer must pay the cost of conducting the assessment.
(5)The actuary must provide the non-WorkCover employer with a copy of the proposed assessment.
(6)The non-WorkCover employer may provide comments to the actuary within 28 daysof receiving a copy of the proposed assessment or within any further period as may be agreed between the Authority and the non-WorkCover employer.
(7)The actuary must finalise the assessment after considering any comments received under sub-section (6).
167.Obligation of non-WorkCover employer who was insured under a WorkCover insurance policy
(1)If the non-WorkCover employer was insured under a WorkCover insurance policy and the initial assessment is that the tail claims liabilities exceed the available assets,the non-WorkCover employer must pay the amount of the difference to the Authority.
(2)The non-WorkCover employer must pay the amount under sub-section (1) within 28 days of receiving a notice of that initial assessment from the Authority or within any further period as may be agreed between the Authority and the non-WorkCover employer.
(3)If the amount under sub-section (1) is not paid to the Authority in accordance with sub-section (2), the amount together with interest at the prescribed rate may be recovered by the Authority as a civil debt recoverable summarily.
168.Obligation of non-WorkCover employer who was a self-insurer or a subsidiary of a self-insurer to which this Part applies
s. 6
(1)If the non-WorkCover employer was a self-insureror a subsidiary of a self-insurer to which this Part applies,the non-WorkCover employer must pay the amount of the tail claims liabilities as assessed in the initial assessment to the Authority.
(2)The non-WorkCover employer must pay the amount under sub-section (1) within 28 days of receiving a notice of that initial assessment from the Authority or within any further period as may be agreed between the Authority and the non-WorkCover employer.
(3)If the amount under sub-section (1) is not paid to the Authority in accordance with sub-section (2), the amount together with interest at the prescribed rate may be recovered by the Authority as a civil debt recoverable summarily.
169.Annual assessment of tail claims liabilities
s. 6
(1)The Authority must ensure that an actuary appointed by the Authority undertakes an assessment of the tail claims liabilitiesas at the end of each year during the liability period.
Note:Section 44(6)(c) of the Interpretation of Legislation Act 1984 provides that a reference, without qualification, to a year shall be construed as a reference to a period of 12months.
(2)The non-WorkCover employer must pay the cost of conducting the assessment.
(3)The actuary must provide the non-WorkCover employer with a copy of the proposed assessment.
(4)The non-WorkCover employer may provide comments to the actuary within 28 days of receiving a copy of the proposed assessmentor within any further period as may be agreed between the Authority and the non-WorkCover employer.
(5)The actuary must finalise the assessment after considering any comments received under sub-section (4).
170.Adjustment of payments as at the end of the third year
s. 6
(1)If therevised assessment of the tail claims liabilitiesas at the end of the third year of the liability period exceeds the initial assessment of thetail claims liabilities, the non-WorkCover employer must pay the amount of the difference to the Authority.
(2)The non-WorkCover employer must pay the amount under sub-section (1) within 28 days of receiving a notice of that revised assessment from the Authority or within any further period as may be agreed between the Authority and the non-WorkCover employer.
(3)If the amount under sub-section (1) is not paid to the Authority in accordance with sub-section (2), the amount together with interest at the prescribed rate may be recovered by the Authority as a civil debt recoverable summarily.
(4)If the revised assessment of the tail claims liabilities as at the end of the third year of the liability period is less than the initial assessment of thetail claims liabilities, the Authority must pay the amount of the difference to the non-WorkCover employer.
171.Adjustment of payments as at the end of the sixth year
(1)If the revised assessment of the tail claims liabilities as at the end of the sixth year of the liability period exceeds the revised assessment of thetail claims liabilities as assessed at the end of the third year of the liability period, the non-WorkCover employer must pay the amount of the difference to the Authority.
(2)The non-WorkCover employer must pay the amount under sub-section (1) within 28 days of receiving a notice of that revised assessment from the Authority or within any further period as may be agreed between the Authority and the non-WorkCover employer.
s. 6
(3)If the amount under sub-section (1) is not paid to the Authority in accordance with sub-section (2), the amount together with interest at the prescribed rate may be recovered by the Authority as a civil debt recoverable summarily.
(4)If the revised assessment of the tail claims liabilities as at the end of the sixth year of the liability period is less than the revised assessment of thetail claims liabilities as assessed at the end of the third year of the liability period, the Authority must pay the amount of the difference to the non-WorkCover employer.
172.Provision of guarantees
(1)A non-WorkCover employer must ensure that there is in force a guarantee—
(a) against insolvency risk given by an authorised deposit-taking institution to or in favour of the Authority in a form approved by the Authority in respect of 50% of—
(i)in relation to the first year of the liability period, the initial assessment of tail claims liabilities until the end of the first year after the exit date;