2009

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Industrial Relations)

2009

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Industrial Relations)

An Act to amend the Workers Compensation Act 1951, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Workers Compensation Amendment Act 2009.

(1) The following provisions commence on 1 July 2010:

• section 4

• section 5

• section 9

• section 50

• section 51.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

(2) The remaining provisions commence on the day after this Act’s notification day.

This part amends the Workers Compensation Act 1951.

(1) In this Act:

total wages means total wages worked out as prescribed by regulation.

(2) The Legislation Act, section 47 (3) does not apply to a regulation under this section.

(1) In this Act (subject to this chapter):

worker means an individual who—

(a) works under a contract of service, whether the contract is express or implied, oral or written; or

(b) works under a contract, or at piecework rates, for labour only or substantially for labour only; or

(c) works for another person under a contract (whether or not a contract of service) unless—

(i) the individual—

(A) is paid to achieve a stated outcome; and

(B) has to supply the plant and equipment or tools of trade needed to carry out the work; and

(C) is, or would be, liable for the cost of rectifying any defect in the work carried out; or

(ii) a personal services business determination is in effect for the person carrying out the work under the Income Tax Assessment Act 1997 (Cwlth), section 87-60.

(2) The personal injury plan must be established in agreement with the employer (unless the employer is a self-insurer or a non-business employer) and the injured worker, to the maximum extent that their cooperation and participation allow.

(1) The insurer may appoint an approved rehabilitation provider for an injured worker as part of the worker’s personal injury plan.

(2) However, the insurer must appoint an approved rehabilitation provider for the injured worker as part of the personal injury plan if the worker has not returned to the worker’s pre-injury duties and pre-injury working hours, within 4 weeks after the day the worker gave notice of the injury.

(4) The worker must authorise the worker’s nominated treating doctor to provide relevant information to—

(a) the insurer or employer for the worker’s personal injury plan; or

(b) a person who requires the information in relation to the management of the worker’s claim for compensation; or

(c) the chief executive in relation to the performance of an approved rehabilitation provider.

(4) The Legislation Act, section 47 (3) does not apply to a regulation under this section.

section 147 (7) (Compulsory insurance—employers)

section 147A (7) (Compulsory insurance—offences)

(1) This section applies if an employer does not hold a compulsory insurance policy issued by an approved insurer.

(2) However, this section does not apply to an employer if—

(a) the employer is a self-insurer; or

(b) liability to pay compensation to a worker would be shared between the employer and either another employer or other employers and any of the other employers maintains a joint compulsory insurance policy for the joint liability of all the employers; or

(c) the employer provides evidence that a State was the Territory or State of connection for the employment under the law of a State corresponding to part 4.2A (Employment connection with ACT or State); or

(d) the employer had insurance, or was registered, as required under the law of the State in relation to liability for workers compensation under the law of the State.

Note State includes the Northern Territory (see Legislation Act, dict, pt 1).

(3) The chief executive may give the employer a notice (a default notice) requiring the employer to obtain a compulsory insurance policy within 10 business days after the day the notice is given to the employer (the compliance period).

(4) If, at the end of the compliance period, the employer does not hold a compulsory insurance policy issued by an approved insurer, the chief executive may give the employer another notice (a 2nd default notice) requiring the employer to obtain a compulsory insurance policy within 10 business days after the day the notice is given to the employer (the 2nd compliance period).

(5) If, at the end of the 2nd compliance period, the employer does not hold a compulsory insurance policy issued by an approved insurer, the chief executive may give the employer a notice (a cease business notice) directing the employer to stop conducting the employer’s business.

(6) A cease business notice takes effect 5 business days after the day the notice is given to the employer.

(1) This section applies to an employer to whom section 147 applies.

(2) An employer commits an offence if the employer fails to maintain a compulsory insurance policy with an approved insurer.

Maximum penalty: 50 penalty units.

(3) An employer commits an offence if—

(a) the employer is given a default notice; and

(b) at the end of the compliance period, the employer does not hold a compulsory insurance policy issued by an approved insurer.

Maximum penalty: 50 penalty units.

(4) An employer commits an offence if—

(a) the employer is given a 2nd default notice; and

(b) at the end of the 2nd compliance period, the employer does not hold a compulsory insurance policy issued by an approved insurer.

Maximum penalty: 250 penalty units.

(5) An employer commits an offence if—

(a) the employer is given a cease business order; and

(b) the employer does not cease to conduct the employer’s business.

Maximum penalty: 250 penalty units.

(6) An offence against subsection (2) or (3) is a strict liability offence.

(7) A cover note may be a compulsory insurance policy only if it is in force for not longer than 30 days and—

(a) the employer maintained a compulsory insurance policy (other than a cover note) immediately before maintaining the cover note; or

(b) the employer was not an employer immediately before beginning to maintain the cover note; or

(c) the employer was a self-insurer immediately before beginning to maintain the cover note.

(8) In this section:

2nd compliance period—see section 147 (4).

2nd default notice—see section 147 (4).

cease business notice—see section 147 (5).

compliance period—see section 147 (3).

default notice—see section 147 (3).

(1) This section applies if an employer—

(a) receives a default notice, or a 2nd default notice, under section 147; and

(b) subsequently obtains a compulsory insurance policy issued by an approved insurer.

(2) The employer must pay to the insurer at least 30% of the premium payable for the policy at the time the policy is issued.

(1) This section applies if an employer fails to maintain a compulsory insurance policy with an approved insurer.

(2) However, this section does not apply if—

(a) the employer provides evidence that a State was the Territory or State of connection for the employment under the law of a State corresponding to part 4.2A (Employment connection with ACT or State); or

(b) the employer had insurance, or was registered, as required under a law of the State in relation to liability for workers compensation under the law of the State.

Note State includes the Northern Territory (see Legislation Act, dict, pt 1).

(3) The chief executive must determine the amount of the premium (the avoided premium) that would have been payable to an approved insurer if the employer had maintained a compulsory insurance policy for the period that the employer was not insured (up to a maximum of 5 years).

(4) The chief executive may determine an amount (a recovery amount) for the employer equal to—

(a) double the avoided premium; or

(b) an amount less than double the avoided premium, having regard to the following:

(i) whether payment of the recovery amount would cause the employer financial hardship;

(ii) whether payment of the recovery amount would cause the employer to stop conducting the employer’s business in the ACT;

(iii) whether the chief executive is likely to recover the amount;

(iv) the employer’s history of compliance with its obligations under this Act;

(v) whether the employer’s failure to maintain a compulsory insurance policy was based on independent advice;

(vi) steps the employer has taken to obtain a compulsory insurance policy;

(vii) any other material provided by the employer;

(viii) any other factor the chief executive considers relevant.

Note The chief executive’s determination under s (4) is an internally reviewable decision (see Workers Compensation Regulation 2002, sch 3, pt 3.2).

(5) If the chief executive determines a recovery amount for an employer, the chief executive must give the employer written notice of—

(a) the avoided premium; and

(b) the recovery amount.

(6) The chief executive may recover the recovery amount as a debt owing by the employer to the DI fund.

(7) In this section:

employer does not include a self-insurer or non-business employer.

section 147 (1) (Compulsory insurance—employers)

section 147A (2) (Compulsory insurance—offences)

section 147 (1) (Compulsory insurance—employers)

section 147A (2) (Compulsory insurance—offences)

section 147 (1)

section 147A (2)

(2) The employer must give the insurer, with the application, a statement of the employer’s estimate for the proposed insurance period.

Maximum penalty: 250 penalty units, imprisonment for 2 years or both.

Note One or more fault elements apply to this offence (see Criminal Code, s 22).

(3) The employer must give the insurer, with the application, a statement of the employer’s estimate for the proposed insurance period.

Maximum penalty: 50 penalty units.

(3A) A statement of the employer’s estimate may be signed for the employer by any of the following:

(a) if the employer is a corporation—an officer of the corporation authorised to sign the statement;

(b) in any other case—an owner of the employer’s business.

certificate from a recognised auditor stating

statement of

(3A) A statement made under this section may be signed for the employer by any of the following:

(a) if the employer is a corporation—an officer of the corporation authorised to sign the statement;

(b) in any other case—an owner of the employer’s business.

certificate from a recognised auditor stating

statement of

(2A) A statement made under this section may be signed for the employer by any of the following:

(a) if the employer is a corporation—an officer of the corporation authorised to sign the statement;

(b) in any other case—an owner of the employer’s business.

certificate

statement

statutory declaration

statement

(2A) A statement made under this section may be signed for the employer by any of the following:

(a) if the employer is a corporation—an officer of the corporation authorised to sign the statement;

(b) in any other case—an owner of the employer’s business.

(1) An employer commits an offence if—

(a) the employer gives information in a relevant statement to an approved insurer; and

(b) the employer does so knowing that the information—

(i) is false or misleading; or

(ii) omits anything without which the information is misleading.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(2) An employer commits an offence if—

(a) the employer gives information in a relevant statement to an approved insurer; and

(b) the employer does so knowing that the information—

(i) is false or misleading; or

(ii) omits anything without which the information is misleading; and

(c) the approved insurer relies on the information to work out the premium for a compulsory insurance policy for the person; and

(d) the premium worked out by the approved insurer for the policy is less than the premium would be if the person gave the correct information.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(3) In this section:

relevant statement means a statement provided by an employer for any of the following provisions:

(a) section 155 (2) (Information for insurers on application for issue or renewal of policies);

(b) section 156 (2) and (3) (Information for insurers after renewal of policies);

(c) section 157 (2) (Information for insurers after end or cancellation of policies);

(d) section 159 (1) (Six-monthly information for insurers).

(1) This section applies if—

(a) an employer has given an approved insurer a relevant statement for a period, stating an amount of wages the employer has paid for the period; and

(b) the amount of wages the employer has paid for the period is at least 10% more than the amount stated in the relevant statement.

(2) The chief executive must determine the amount of the avoided premium for each period of insurance to which a relevant statement mentioned in subsection (1) applies (up to a maximum of 5 years).

(3) The chief executive may determine an amount (a recovery amount) for the employer equal to—

(a) double the avoided premium; or

(b) an amount less than double the avoided premium, having regard to the following:

(i) whether payment of the recovery amount would cause the employer financial hardship;

(ii) whether payment of the recovery amount would cause the employer to stop conducting the employer’s business in the ACT;

(iii) whether the chief executive is likely to recover the recovery amount;

(iv) the employer’s history of compliance with its obligations under this Act;

(v) whether the employer’s behaviour in completing the relevant statement was based on independent advice;

(vi) steps the employer has taken to obtain a compulsory insurance policy;

(vii) any other material provided by the employer;

(viii) any other factors the chief executive considers relevant.

Note The chief executive’s determination under s (3) is an internally reviewable decision (see Workers Compensation Regulation 2002, sch 3, pt 3.2).

(4) If the chief executive determines a recovery amount for an employer, the chief executive must give the employer written notice of—

(a) the avoided premium; and

(b) the recovery amount.

(5) The chief executive may recover the recovery amount as a debt owing by the employer to the DI fund.

(6) In this section:

avoided premium, for a period of insurance, means an amount equal to the difference between—

(a) the premium worked out for the period using the information given by the person; and

(b) the premium worked out for the period using the correct information.

relevant statement means a statement provided by an employer for any of the following provisions:

(a) section 156 (2) and (3) (Information for insurers after renewal of policies);

(b) section 157 (2) (Information for insurers after end or cancellation of policies).

(1) This section applies if—

(a) a court or tribunal has entered a judgment in favour of the chief executive against an employer for an amount under section 149 (Failure to maintain compulsory insurance policy—chief executive entitled to recovery amount) or section 162A (Avoiding payment of premium—chief executive entitled to recovery amount); and

(b) the employer has not paid the judgment debt within 28 days after the day the judgment is entered.

(2) The chief executive may, in addition to any other right to enforce the judgment, apply to the court or tribunal for an order (a cease business order) directing the employer to cease conducting the employer’s business until the judgment is paid.

(3) A cease business order takes effect 5 business days after the day the order is made.

• section 147A (Compulsory insurance—offences)

Note An injured worker who was a director of the employer at the time of the injury may not make a claim against the fund (see s 170 (2)).

Note An injured worker who was a director of the employer at the time of the injury may not make a claim against the fund (see s 170 (2)).

(2) However, a person may not make a claim for payment if, at the time of the injury—

(a) the injured worker was a director of the worker’s employer; and

(b) the employer did not hold a compulsory insurance policy that applies to the injured worker for the injury.

within 28 days

not later than 3 days

certificate from a recognised auditor stating

statement of

statutory declaration

statement

in the time and way stated in the notice

not later than 3 days after the day the notice is given to the employer

(3A) A statement made under this section may be signed for the employer by any of the following:

(a) if the employer is a corporation—an officer of the corporation authorised to sign the statement;

(b) in any other case—an owner of the employer’s business.

certificate of currency—see section 160.

related information includes any of the following records:

(a) an injury notice under section 93;

(b) a statement of the employer’s estimate under section 155;

(c) a statement of total wages under section 156;

(d) a statement of total wages under section 157;

(e) a statement of total wages under section 158;

(f) a statement under section 159;

(g) a certificate of currency issued by an insurer to the employer;

(h) wages and earnings paid by the employer;

(i) invoices and information related to the invoices given to the employer by an sub-contractor;

(j) a certificate of currency in relation to a contractor;

(k) material used by the employer to work out the wages for a statement of total wages;

(l) business records including business activity statements, minutes of board meetings, financial statements and agreements made with entities related to the employer;

(m) any record the employer is required to maintain under this Act.

In this chapter:

decision-maker—see section 199A (1).

internally reviewable decision—see section 199B (1).

internal reviewer—see section 199B (3).

reviewable decision—see section 199.

This chapter applies to a decision (a reviewable decision)—

(a) made by the Minister or chief executive under this Act; and

(b) prescribed by regulation to be a reviewable decision.

(1) If the Minister or chief executive (the decision-maker) makes a reviewable decision, the decision-maker must give written notice of the decision to each entity prescribed by regulation for the decision.

Note 1 The decision-maker must also take reasonable steps to give a reviewable decision notice to any other person whose interests are affected by the decision (see ACT Civil and Administrative Tribunal Act 2008, s 67A).

Note 2 The requirements for reviewable decision notices are prescribed under the ACT Civil and Administrative Tribunal Act 2008.

(2) In particular, the notice must tell the person—

(a) whether the person has the right to apply for internal review of the decision or the right to apply to the ACAT for review of the decision, and how the application must be made; and

(b) if the person has the right to apply for internal review of the decision—that the person has the right to apply to the ACAT for review of the internal review decision if the person is dissatisfied with that decision; and

(c) about the options available under other ACT laws to have the decision reviewed by a court or the ombudsman.

(1) This section applies if a regulation declares that a reviewable decision is a decision that is subject to internal review (an internally reviewable decision).

(2) A person whose interests are affected by an internally reviewable decision may apply in writing to the chief executive for internal review of the decision.

(3) The chief executive must arrange for someone else (the internal reviewer) to review the decision.

(4) However, this section does not apply to a reviewable decision made personally by the Minister or the chief executive.

Note Section 199E (b) provides for review of decisions exempt from internal review by the ACAT.

(1) An application for internal review under section 199B must be made within—

(a) 28 days after the day the applicant receives written notice of the decision under section 199A; or

(b) any longer period allowed by the internal reviewer, whether before or after the end of the 28-day period.

(2) The application must set out the grounds on which internal review of the decision is sought.

(3) The making of the application for internal review of the decision does not affect the operation of the decision.

(1) The internal reviewer must review the internally reviewable decision, and confirm, vary or revoke the decision, within 28 days after the decision-maker receives the application for internal review of the decision.

(2) If the decision is not varied or revoked within the 28-day period, the decision is taken to have been confirmed by the internal reviewer.

(3) As soon as practicable after reviewing the decision, the internal reviewer must give written notice of the decision on the internal review to the applicant.

A person may apply to the ACAT for review of—

(a) a decision made by an internal reviewer; or

(b) a reviewable decision that is not an internally reviewable decision.

(1) An employer must keep records of the following for 5 years after the day the record is made:

(a) an injury notice under section 93;

(b) a statement of the employer’s estimate under section 155;

(c) a statement of total wages under section 156;

(d) a statement of total wages under section 157;

(e) a statement of total wages under section 158;

(f) a statement under section 159;

(g) a certificate of currency issued by an insurer to the employer;

(h) wages and earnings paid by the employer;

(i) invoices and related information given to the employer by a sub-contractor;

(j) a certificate of currency in relation to a contractor;

(k) material used by the employer to work out the wages for a statement of total wages;

(l) any record the employer is required to maintain under this Act.

Maximum penalty: 100 penalty units.

(2) The chief executive, or the employer’s insurer, may request the employer to make available any of the records mentioned in subsection (1).

(3) The employer must make the records available, not later than 3 days after a request is made, to the person who requested the records.

Maximum penalty: 50 penalty units.

(4) An offence against subsection (3) is a strict liability offence.

(5) In this section:

certificate of currency—see section 160.

(1) This section applies if the chief executive is entitled to recover an amount from a corporation under section 149 (Failure to maintain compulsory insurance policy—chief executive entitled to recovery amount) or section 162A (Avoiding payment of premium—chief executive entitled to recovery amount).

(2) An amount is not recoverable from a corporation if the chief executive is satisfied that the amount is unlikely to be recovered by reasonable recovery efforts because the corporation is being wound up or is unable to pay its debts or otherwise.

(3) The chief executive may recover the amount from an executive officer if the officer was a culpable executive officer at the relevant time.

(4) An executive officer is culpable at the relevant time if the officer was an executive officer of the corporation at any time during which the corporation committed the offence to which the entitlement to recover relates.

(5) However, an executive officer is culpable only if—

(a) the officer knew, or ought reasonably to have known, that the offence was committed; or

(b) the officer was in a position to influence the corporation’s conduct in relation to the offence; or

(c) the officer, being in a position to influence the conduct of the corporation, failed to exercise appropriate diligence to prevent the corporation committing the offence.

(6) If more than 1 executive officer of a corporation is culpable, the culpable executive officers are jointly and severally liable for any amount the chief executive may recover under this section.

(7) If an amount is recovered from an executive officer under this section, the executive officer may recover the amount from the officer’s corporation.

(8) This section does not apply to an amount the chief executive is entitled to recover from a corporation in relation to an offence that the corporation committed before the commencement of this section.

(xi) section 162 (False information causing lower premium);

(b) the chief executive; and

The committee chair is the chief executive.

decision-maker, for chapter 12 (Notification and review of decisions)—see section 199A (1).

internally reviewable decision, for chapter 12 (Notification and review of decisions)—see section 199B (1).

internal reviewer, for chapter 12 (Notification and review of decisions)—see section 199B (3).

recognised auditor, for the DI fund, means an auditor who is not employed or engaged by the DI fund.

reviewable decision, for chapter 12 (Notification and review of decisions)—see section 199.

total wages—see section 7A.

This part amends the Workers Compensation Regulation 2002.

The ACT Wages and Earnings Guide is prescribed for working out total wages.

Note The ACT Wages and Earning Guide is accessible at www.ors.act.gov.au/workcover.

(1) The Minister may, in writing, approve a person as a rehabilitation provider.

(2) The Minister may approve a rehabilitation provider for not longer than 3 years.

In deciding whether to approve a person as a rehabilitation provider, the Minister must act in accordance with the Guide—Nationally Consistent Approval Framework for Workplace Rehabilitation Providers as in force from time to time.

Note The Guide—Nationally Consistent Approval Framework for

Workplace Rehabilitation Providers is accessible at www.hwca.org.au/NationalGuide.php.

A decision mentioned in schedule 3, part 3.1, column 3, under a provision mentioned in column 2 in relation to the decision, is prescribed.

An entity mentioned in schedule 3, part 3.1, column 4 in relation to a decision is prescribed for the decision.

A reviewable decision mentioned in schedule 3, part 3.2, column 3 under a provision mentioned in column 2 in relation to the decision, is declared to be an internally reviewable decision.

This part amends the Taxation Administration Act 1999.

(iv) for the Workers Compensation Act 1951—the DI fund manager and the chief executive for the Workers Compensation Act 1951;

Presentation speech made in the Legislative Assembly on 2009.

Notified under the Legislation Act on 2009.

For the latest republication of amended laws, see www.legislation.act.gov.au.