Workplace Injury Rehabilitation and Compensation Bill 2013
Introduction Print
EXPLANATORY MEMORANDUM
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BILL LA INTRODUCTION 18/9/2013
General
This Bill re-enacts with amendments provisions of the Accident Compensation Act 1985 and replaces that Act and the Accident Compensation (WorkCover Insurance) Act 1993 with a new comprehensive Act that is easier to use and follow.
The Bill will govern workers compensation insurance, payment of employer premiums, rehabilitation for injured workers, and compensation in relation to workplace injuries and deaths.
The Bill includes a number of drafting improvements that are intended to simplify the legislation and make it easier to understand and navigate. Someof these improvements are—
· a more logical structure, with provisions that govern entitlement to compensation, the making of a claim and return to work located at the front of the Bill and provisions that are ancillary to the WorkCover scheme located towards the end of the Bill;
· modernisation of the style and language of some outdated provisions in the legislation, and restructure of various provisions to make them easier to read and understand;
· new visual aids, with flow chart diagrams to assist workers and employers to understand various claims processes and obligations;
· new statements of key rights and obligations of workers and employers at the start of the Bill to assist navigation of the legislation; and
· omission of various obsolete provisions.
The Bill has been prepared on the basis that it does not involve changes to injured workers' benefits nor to the way employers' premiums are calculated. The substance of various key provisions in the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act 1993 have therefore been reproduced in the Bill.
The Bill includes a number of minor amendments aimed at removing ambiguities, clarifying the intention of various provisions, and correcting a number of drafting anomalies. The Bill also includes a small number of minor policy changes that improve administrative processes and reduce regulatory burden.
The wording of some of the more complex and heavily litigated provisions of the Accident Compensation Act 1985 have been reproduced in the Bill.
Clause Notes
PART 1—PRELIMINARY
Clause 1 sets out the purposes of the Bill, which are—
· to simplify the provisions applying to the rehabilitation of injured workers and compensation;
· to streamline the provisions of the Accident Compensation Act 1985 which continue to apply to injuries suffered before 1July 2014;
· to provide a single gateway for claims for compensation under the Bill or the Accident Compensation Act 1985;
· to provide for the registration of employers and the payment of WorkCover premiums;
· to repeal the Accident Compensation (WorkCover Insurance) Act 1993 and consolidate the substance into this Bill;
· and to make consequential amendments to the Accident Compensation Act 1985, the Workers Compensation Act 1958 and certain other Acts.
Clause 2 establishes the commencement of various sections of the Bill. The majority of provisions in the Bill will come into operation on 1 July 2014. Clause 6 of the Bill establishes more detailed provisions regarding the application of the Bill.
Subclause (2) specifies clauses that will come into operation on the day after the day on which the Bill receives Royal Assent. The clauses make changes to the Accident Compensation Act 1985. It is appropriate that these provisions commence on the day after Royal Assent.
Clauses 628(1) and 641 will be deemed to have come into operation on 5 April 2010. The provisions will be applied retrospectively in order to correct technical anomalies in provisions that were introduced or amended in the Accident Compensation Act 1985 from 5April 2010.
Clause 626(7), 630(3) and 647 will be deemed to have come into operation on 1 July 2010. The amendments will be applied retrospectively in order to correct anomalies in the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act 1993.
Clause 643 containing a transitional provision for a previous amendment to the Accident Compensation Act 1985 will be deemed to have commenced on 1 November 2010. Theamendment will be applied retrospectively to correct an anomaly in a transitional provision for an amendment to the Accident Compensation Act 1985 from 1 November 2010.
Clause 630(6) will be deemed to come into operation on 1 July 2012. The amendment will be applied retrospectively to align with the date an equivalent amendment was made in the Transport Accident Act 1986.
Clause 3 defines key words and phrases used throughout the Bill.
Definitions in clause 3 operate the same as their equivalent definitions in section 5 of the Accident Compensation Act 1985, except where identified otherwise. Some of the definitions have been streamlined or restructured and there are some technical changes to a number of definitions as detailed below. For example, there are changes to the definitions of hospital, nursing service and personal and household service. There are also some new definitions in the Bill as detailed below.
Several definitions from section 5 of the Accident Compensation Act 1985 have been omitted from the Bill. These include the definitions of authorised deposit taking agency, financial year and prescribed which are adequately defined under the Interpretation of Legislation Act 1984. Thedefined terms of appointed day, uninsured employers and indemnity scheme and WorkCover insurance policy have also been omitted from the Bill on the basis the definitions are no longer required.
Accounting records in the Bill is relevant to the governance provisions relating to the Victorian WorkCover Authority. Theterm is defined by reference to the equivalent definition inthe Financial Management Act 1994, which includes "invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry; and such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up".
A.M.A Guides confirms the abbreviated phrase for the "American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (other than Chapter 15) as modified by this Act and the regulations".
The A.M.A Guides provide the methodology by which assessments of permanent impairment under Division 4 of Part2 are to be conducted. The guides are modified by this Bill for certain categories of injuries (including psychiatric injury, occupational asthma, and infectious occupational diseases) to take account of Australian best practice in evaluating such injuries.
Ambulance service is defined to mean the conveying of a worker by any reasonable means for the purpose of receiving medical or hospital services. The definition is relevant for the purposes of provisions setting out entitlement to compensation for medical and like expenses in Division 7 of Part 5 of the Bill.
Applicable prescribed percentage is defined in the Bill for the purposes of the provisions in Part 1 of Schedule 1 which deem certain persons to be workers and employers. The Bill recognises that certain deemed workers under the Bill provide materials and equipment as well as labour services pursuant to contractual employment arrangements. Theterm is relevant for the purposes of deductions to the total amount of a contract representing the percentage that on average reflects the materials and equipment component of the contract; and to remuneration and the calculation of PIAWE for various workers under clauses 6 and 8 of Schedule 1.
Apprentice is aligned with the equivalent definition contained in the Education and Training Reform Act 2006 being a person whom an employer has undertaken to train under a training contract. The definition is relevant to various provisions in the Bill, including provisions relating to entitlement to compensation and benefits.
Authorised agent is defined to mean a person appointed by theVictorian Workcover Authority under clause 501 as an authorised agent. Authorised agents are appointed by the Authority to manage various matters relating to WorkCover insurance and claims for compensation in accordance with clause 501.
Authority is defined to mean the Victorian WorkCover Authority. The Authority was established under section 18 of the Accident Compensation Act 1985 and is continued in existence by clause 491(1) of this Bill. The key governance provisions relating to the Authority are in Part 11 of the Bill.
Board is defined to mean the Board of Management of the Authority. This was established by section24 of the Accident Compensation Act 1985 and is continued in existence under clause 502 of the Bill. Various provisions relating to the Board, including the constitution and appointment of members are set out in Part 11 of the Bill.
Books is defined in the Bill to include any document. Thedefinition includes a note referring to the definition of document in section 38 of the Interpretation of Legislation Act 1984. That definition captures the substance of the existing longer form definition of books in the Accident Compensation Act 1985 and there will be no changes as a result of the shorter definition in the Bill.
Conciliation Officer means the Senior Conciliation Officer orthe person appointed as a Conciliation Officer under clause523(2). A reference to a Conciliation Officer is to be taken to include the Senior Conciliation Officer, unless the contrary intention appears. A Conciliation Officer has a range of powers to deal with disputes relating to decisions on statutory entitlements under Part 6 of the Bill. Such disputes may relate to the entitlement to compensation under Part 2 and benefits in Part 5 or in relation to a claim under section 98 or 98A of the Accident Compensation Act 1985. There is no equivalent definition in the Accident Compensation Act 1985.
Conciliation Service means the Accident Compensation Conciliation Service established under section 52A of the Accident Compensation Act 1985 and continued in existence under clause 519. There is no equivalent definition in the Accident Compensation Act 1985.
Corresponding Authority is defined to include various Government departments or authorities in other Australian jurisdictions responsible for administering a law corresponding to this Bill, the Occupational Health and Safety Act 2004, theDangerous Goods Act 1985, or the Equipment (Public Safety) Act 1994. The definition is relevant to the governance provisions in Part 11 of the Bill, including the power of the Authority to enter into agreements or contracts with a corresponding Authority. It is also relevant to the information disclosure provisions in Division 9 of Part 13.
Corrupt conduct refers to the meaning given by section4 of the Independent Broad-based Anti-Corruption Committee Act 2011. Thedefinition is relevant for the purposes of the Authority notifying the IBAC of certain conduct in accordance with Division 12 of Part 13 of the Bill. There is no equivalent definition in the Accident Compensation Act 1985.
Current weekly earnings is defined by reference to clause 152 of the Bill but applies to the entire Bill. The definition is relevant to benefits under the Bill, including the calculation of weekly payments of compensation. There is no equivalent definition in the Accident Compensation Act 1985.
Current work capacity in relation to a worker is directly relevant to benefits under the Bill, including weekly payments of compensation and to the return to work obligations of workers and employers in Part 4. It refers to a present ability ofthe worker to do some work, when the worker is unable to engage in his or her pre-injury employment. If the worker has acurrent work capacity, the employer has an obligation to provide the worker with suitable employment (defined in clause3), and the worker has a range of obligations which include participation in return to work planning. The term is also relevant to the calculation of weekly payments under Part5, which is affected if a worker has a current work capacity.
Declared training program is defined in the Bill to mean a training program in respect of which a declaration under clause2 of Schedule 1 is in force. The definition is relevant for the purposes of the provisions relating to persons deemed to be workers or employers, as a participant in such a program is deemed to be a worker whilst so participating.
Dependant is defined by reference to a person being wholly, mainly or partly dependant on the earnings of a worker. Thedefinition is relevant to provisions relating to workplace deaths, including entitlements to compensation for dependants.
Disease is predominantly relevant for the purposes of determining whether there is an entitlement to compensation under Part 2 of the Bill for diseases as defined.
Domestic partner is defined in the Bill for the purposes of expanding the definition of partner to include certain non-marital domestic relationships. The definition is aligned with the Relationships Act 2008. The definition is predominantly relevant to provisions relating to workplace deaths, including entitlements to compensation for certain partners.
Drive is defined to mean being in control, or in charge, of a motor vehicle. The definition is relevant to provisions in Part 2 establishing a targeted penalty regime for workers who sustain injury while driving with any concentration of alcohol in their blood or breath or any concentration of a prescribed illicit drug. The definition is consistent with the Road Safety Act 1986 and the Transport Accident Act 1986.
Eligible subsidiary refers to the substantive meaning of that term in clause 372. The definition is relevant to the provisions governing self-insurers in Part 8 of the Bill.
Employer is defined to describe the types of persons who will be taken to be employers under the Bill. Thisdefinition, together with the definition of worker, is fundamental to describing the relationship between workers and employers for the purposes of determining the key rights and obligations in provisions throughout the Bill. The definition confirms that employers may be deemed under the Bill, including under various provisions in Part 1 of Schedule 1.
Employer superannuation contribution is defined to mean any contribution made by an employer in respect of a worker for the payment of superannuation or other related benefits as set out in the definition. The definition excludes certain contributions, such as certain voluntary contributions by workers and certain salary sacrifice contributions of a kind specified by the Minister by an order in the Government Gazette. The definition is relevant to section 155 and the exclusion of employer superannuation contributions from ordinary earnings for the purposes of calculating PIAWE. The employer superannuation amount is excluded from ordinary earnings and section 6(2) of the Transport Accident Act 1986, which is relevant for the assessment of serious injury under Part 7. Contributions that do not fit within the definition may be included in ordinary earnings.