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Amendment Bill 1995
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
Overview of Bill
The object of this Bill is to make miscellaneous amendments to the Workers
Compensation Act 1987 and certain other Acts concerned with workers
compensation. The amendments are in many instances clarifications and
further developments of existing provisions.
Amendments to Compensation Act 1987
The Bill amends the Workers Compensation Act 1987:
(a)
to ensure that employers' workers compensation insurance fully
covers the period during which common law rights were abolished
(1 July 1987 to l February 1990) (see Schedule l),
* Amended in committee--see table at end of volume.
to broaden the cover provided by workers compensation insurance
policies for liabilities arising independently of the Act by removing
the existing restriction that limits cover to liability arising under a law
of New South Wales (so that cover will extend to common law
liability arising under the law of another State for example), with the
broadened cover applying to any injury received at or after 4 pm on
30 June 1993 (see Schedule l),
to require the Compensation Court to apportion pain and suffering for
which compensation is payable in terms of past and future pain and
suffering for the purpose of the calculation of any interest payable in
respect of that compensation (see Schedule 2),
to provide that the recovery by a worker of certain damages that are
only of an interim or advance nature does not disentitle the worker to
workers compensation (see Schedule 3),
to change various provisions dealing with rights of contribution and
apportionment among employers and insurers liable for workers
compensation to clarify the circumstances in which contribution and
apportionment are applicable and the basis of their calculation, and to
extend to the Authority any entitlement to contribution or
apportionment of a person on whose behalf the WorkCover Authority
pays compensation under the Uninsured Liability and Indemnity
Scheme (see Schedule 4),
to provide that a structured settlement can be made in respect of an
award of damages under the Workers Compensation Act only if the
plaintiff and defendant agree (see Schedule 5),
to change the basis of entitlement to workers compensation so that
workers of this State will be entitled to compensation under the
Workers Compensation Act wherever they are injured in Australia and
to make ancillary and consequential amendments to related provisions
(see Schedule 6),
to change provisions dealing with lump sum compensation:
(i)
to further clarify the operation of the Table of Disabilities in
relation to injuries involving loss of a lower limb, and
(ii)
to remove an anomaly whereby a worker who has met the main
"serious injury" threshold for recovery of common law
damages for economic loss can forfeit entitlements to both lump
sum compensation for non-economic loss and common law
damages for non-economic loss because of a difference in the
threshold applicable to the non-economic loss part of a common
law claim, and
Explanatory note page 2
(iii) to clarify a transitional provision dealing with the treatment of
compensation paid under the former Act for part of a loss (see
Schedule 7),
(i)
to ensure that a worker who is totally incapacitated after a period of
partial incapacity will receive weekly compensation at the higher of
the 2 rates payable in respect of total incapacity for up to 26 weeks
and to clarify when the first 26 weeks of incapacity commences (see
Schedule 8 (1) and (2)),
(j)
to ensure that the payment of weekly compensation to an injured
worker during a period of total incapacity (after the first 26 weeks of
incapacity) is, to the extent that it is based on average weekly
earnings, adjusted from time to time to take account of increases in
the weekly earnings the worker would have received if he or she had
not been injured and had continued to be employed in the same or
some similar employment (see Schedule 8 (3)-(5)),
(k)
to clarify the power of conciliation officers to direct payment of
compensation where there is no genuine dispute and to make other
amendments to machinery provisions concerning conciliation of
disputes and the payment of compensation. at the direction of a
conciliation officer (see Schedule 9),
(l)
to make it clear that the existing limitation of weekly earnings for the
purposes of awards of damages for economic loss is applicable to net
(rather than gross) weekly earnings (see Schedule 10),
(m)
to delay the commencement of court proceedings in the case of
hearing loss claims for 3 months after the claim is made (except where
all liability for the claim is denied or the proceedings are to recover
weekly payments of compensation due) and to make other
amendments to provisions concerned with the referral to a medical
panel or referee of disputes as to a worker's condition or fitness for
work (see Schedule 11),
(n)
to make it clear that the WorkCover Authority can refuse to register a
compensation agreement for an occupational disease if the Authority
is not satisfied that the loss to which the agreement relates is an
occupational disease (see Schedule 12 (2)),
(o)
to make miscellaneous amendments with respect to the requirements
for a medical certificate to accompany a claim for compensation and
with respect to false information in claims (see Schedule 12 (3)-( 10)),
Explanatory note page 3
(p)
to provide that an injured worker seeking common law damages does
not have the onus of proving that certain steps by way of mitigation of
damage have been taken by the worker, and that the court assessing
damages does not have to take those steps into account, unless the
worker has been informed of the need to take those steps (see
Schedule 12 (1 1) and (12)),
(q)
to simplify existing provisions whereby ministers of religion are
considered to be workers for workers compensation purposes (see
Schedule 12 (13)),
(r)
to enable the making of regulations of a savings or transitional nature
consequent on the proposed Act (see Schedule 12 (14)),
(s)
to make miscellaneous minor changes and amendments by way of
statute law revision (see Schedule 12 (1) and (15)-(23)).
Other Acts amended
The Bill amends other Acts as follows:
(a)
clarifying amendments and minor amendments are made to the
Workers Compensation (Bush Fire, Emergency and Rescue Services)
Act 1987 (see Schedule 13) and the Workers' Compensation (Dust
Diseases) Act 1942 (see Schedule 14),
(b)
a minor amendment is made to the Law Reform (Miscellaneous
Provisions) Act 1965 concerning the effect of contributory negligence
on recovery and repayment of workers compensation to update a
cross-reference to a provision of the Workers Compensation Act 1987
(see Schedule 15).
Each amendment is explained in detail in the Bill in the explanatory note
relating to the amendment concerned.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 is a formal provision giving effect to the amendments to the
Workers Compensation Act 1987.
Explanatory note page 4
Clause 4 is a formal provision giving effect to the amendments to the
Workers Compensation (Bush Fir, Emergency and Rescue Services) Act
1987.
Clause 5 is a formal provision giving effect to the amendments to the
Workers' Compensation (Dust Diseases) Act 1942.
Clause 6 is a formal provision giving effect to the amendment to the Law
Reform (Miscellaneous Provisions) Act 1965.
Schedules
Schedules 1-12 contain the amendments to the Workers Compensation Act
1987 described above.
Schedule 13 contains the amendments to the Workers Compensation (Bush
Fire, Emergency and Rescue Services) Act 1987 described above.
Schedule 14 contains the amendment to the Workers' Compensation (Dust
Diseases) Act 1942 described above.
Schedule 15 contains the amendment to the Law Reform (Miscellaneous
Provisions) Act 1965 described above.
Explanatory note page 5