WORKERS REHABILITATION AND COMPENSATION LEGISLATION AMENDMENT BILL 2015

Serial 117
Workers Rehabilitation and Compensation Legislation Amendment Bill 2015
Mr Styles

A Bill for an Act to amend the Workers Rehabilitation and Compensation Act and the Workers Rehabilitation and Compensation Regulations, and for related purposes

2 Objects of Act
49A Calculation of worker's normal weekly earnings
50A Eligibility of firefighter for compensation for prescribed disease
58 Compensation payable in respect of heart attack or stroke
Subdivision AA Limit on benefits

61A Maximum benefits
64 Compensation during first 26 weeks of incapacity
Part 13 Transitional matters for Workers Rehabilitation and Compensation Legislation Amendment Act 2015

5C Prescribed number of fires and prescribed firefighting period
6AA Expert financial advice

An Act to amend the Workers Rehabilitation and Compensation Act and the Workers Rehabilitation and Compensation Regulations, and for related purposes

This Act may be cited as the Workers Rehabilitation and Compensation Legislation Amendment Act 2015.

Part 2 Amendment of Workers Rehabilitation and Compensation Act
3 Act amended

(a) to provide for the effective rehabilitation and compensation of injured workers;

(b) to provide for the prompt and effective management of workplace injuries in a manner that promotes and assists the return to work of injured workers as soon as practicable;

(iii) is balanced to ensure that the costs of workers compensation are contained to reasonable levels for employers.

first compensation date, in relation to a worker and a particular injury, means the date on which the worker first became entitled to compensation for that injury.

relevant permanent impairment, for Part 5, Division 3, means permanent impairment assessed in accordance with section 65(13A).

statement of fitness for work means a certificate issued by a medical practitioner or another person of a class prescribed by regulation that certifies a worker's capacity for work.

(i) performs work or a service of any kind for another person under a contract; and

(ii) is, in relation to the contract, an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cth), Schedule 1, Parts 2-5; or

(a) an amount is withheld, under the PAYG provisions, from any remuneration (by whatever name called) paid to the director by the body corporate; and

(b) the director's name and estimated remuneration, as well as the nature of the director's employment, are disclosed to the body corporate's insurer:

(i) on the later of the date when the director is appointed and the date when the insurance or indemnity is effected; and

(1) Section 49(1), definitions normal weekly earnings, normal weekly number of hours of work, nursing service and ordinary time rate of pay

(2) Section 49(1) definition medical, surgical and rehabilitation treatment, paragraph (b)

(2) A reference in this Part to a fly-in fly-out worker or a drive-in drive-out worker is to be construed as it is for the purposes of the Fringe Benefits Tax Assessment Act 1986 (Cth).

(1) This section applies when normal weekly earnings are to be calculated for a worker who is entitled to compensation under this Act.

(2) Subject to this section, the worker's normal weekly earnings immediately before the first compensation date are the gross remuneration paid to the worker by:

(3) The following are included in the calculation of the worker's normal weekly earnings:

(a) if the worker works overtime in accordance with a regular and established pattern – the amount of the wages attributable to that overtime;

(c) any climate allowance, district allowance, leading hand allowance, qualification allowance, shift allowance (if the worker works shiftwork in accordance with a regular and established pattern) or service grant received by the worker;

(d) unless the worker is a fly-in fly-out worker or drive-in drive-out worker – the value (not exceeding, in the aggregate, 35% of average weekly earnings) of any electricity, meals or accommodation provided to the worker by an employer in a form other than an amount of money paid or credited to the worker.

(4) The following are not included in the calculation of the worker's normal weekly earnings:

(b) the amount of wages attributable to overtime other than as mentioned in subsection (3)(a);

(d) an amount for electricity, meals or accommodation other than as mentioned in subsection (3)(d);

(e) any other remuneration paid by an employer to the worker in a form other than an amount of money paid or credited to the worker.

(5) The following applies for the calculation of the worker's normal weekly earnings:

(a) if, immediately before the first compensation date, the remuneration paid to a worker by a particular employer did not vary from week to week – the portion of the normal weekly earnings provided by that employer must be calculated as being equal to the amount of the weekly remuneration;

(b) if, immediately before the first compensation date, the remuneration paid to the worker by a particular employer varied from week to week – the portion of the normal weekly earnings provided by that employer must be calculated as equal to the relevant average remuneration from that employer;

(c) the normal weekly earnings in respect of the worker's employment with the employer liable to compensate the worker must be calculated under this paragraph instead of under paragraph (a) or (b) and are equal to the all-employer average remuneration if:

(i) the worker had been in employment with that employer for less than 4 weeks immediately before the first compensation date; and

(ii) it is impracticable to calculate the normal weekly earnings of the worker, having regard both to the worker's period of employment with the employer and the period during which the worker likely would have continued to work for the employer had the injury not occurred;

(d) if it is relevant whether a regular and established pattern of overtime or shiftwork was worked for a particular employer immediately before the first compensation date:

(i) if the worker was in employment with the employer for at least 6 months before the first compensation date – regard must be had to the overtime or shiftwork that the worker worked for that employer during the 6 months immediately before the first compensation date; or

(B) whether, in the normal course of that employment, the worker would likely have worked overtime or shiftwork had the injury not occurred;

(e) if there is doubt about the method to be used for the calculation of the worker's normal weekly earnings – the method of calculation that results in the greatest amount being calculated as the worker's normal weekly earnings must be used.

(6) For subsection (2)(b), a worker ordinarily works for an employer immediately before the first compensation date if:

(a) the worker was in employment with the employer on the first compensation date; and

(b) the worker had been in employment with the employer for at least 6 weeks immediately before the first compensation date.

all-employer average remuneration, in relation to remuneration paid to a worker immediately before the first compensation date, means the average of the worker's total remuneration from all employers for all weeks of paid employment during the period of 12 months that ends immediately before the first compensation date.

relevant average remuneration in relation to remuneration paid to a worker by an employer immediately before the first compensation date, means the average of the worker's total remuneration from the employer for all weeks of paid employment during the period of 12 months that ends immediately before the first compensation date.

(1) Despite any other provision of this Act, unless a contrary intention is established, a disease is taken to have been contracted by a worker in the course of a period of employment, and the employment is taken to have materially contributed to the worker's contraction of the disease, if the following conditions are met:

(i) is, on the onset day for the prescribed disease, working as an active firefighter and had been so working for a period at least as long as the prescribed qualifying period for the prescribed disease; or

(ii) had been, within the 10 years immediately preceding that onset day, working as an active firefighter and had been so working for a period at least as long as the prescribed qualifying period for the prescribed disease;

(2) All periods during which a worker is working, or worked, as an active firefighter are to be added together for the calculation of the relevant prescribed qualifying period.

(b) a fire control officer (including a Senior Fire Control Officer or the Chief Fire Control Officer) appointed under the Bushfires Act;

(c) a worker employed by the Territory for the prevention or control of bushfires who is also a fire warden appointed under section 31(3) of the Bushfires Act.

onset day, in relation to a worker and a prescribed disease, means the earliest of the following:

(a) the day on which the worker is first diagnosed by a medical practitioner as having contracted the prescribed disease;

(b) the day on which the worker becomes incapacitated for work, if the prescribed disease resulted in, or materially contributed to, the incapacity;

volunteer firefighter means a natural person to whom section 3(8) or (8A) applies.

working as an active firefighter, in relation to a worker at a particular time or during a particular period, means:

(a) if the worker is a volunteer firefighter at the particular time or during the particular period:

(i) the worker is working as a volunteer firefighter at the time or during the period and, while so working, is actively involved in fighting fires; and

(ii) the worker is exposed to the hazards of not fewer than the prescribed number of fires within any period:

(b) if the worker is a firefighter (including a person appointed to be an auxiliary member under the Fire and Emergency Act) other than a volunteer firefighter – the worker was required under his or her contract of employment to be exposed to the hazards of fighting fires.

(1) Compensation is payable under this Part in respect of a heart attack injury or a stroke injury to a worker only:

(a) for a heart attack or stroke injury that arose in the course of, or was caused by, a disease – if the worker's employment materially contributed to the injury or disease; or

(b) for a heart attack or stroke injury that did not arise in the course of a disease and was not caused by a disease – if the worker's employment materially contributed to the injury.

(2) In determining, for subsection (1), whether the worker's employment materially contributed to the injury or disease:

(i) the duration of the worker's employment with the employer or employers who were the worker's employers at the time of the injury or the onset of the disease;

(iv) the probability of the injury or disease occurring if that employment had not taken place;

(b) the material contribution of the worker's employment to the injury or disease is to be determined in accordance with section 4(8).

heart attack injury means an injury to the heart, or a blood vessel supplying blood to, or associated with, the heart, that consists of, is caused by, results in or is associated with any of the following:

(i) an impairment, disturbance or alteration of blood, or blood circulation, within the blood vessel;

(j) an occlusion of the blood vessel, whether the occlusion is total or partial;

(k) a rupture of the blood vessel, including a rupture of an aneurism of the blood vessel;

(n) any consequential physical harm or damage, including harm or damage to the brain;

stroke injury means an injury to the brain, or a blood vessel supplying blood to, or associated with, the brain, that consists of, is caused by, results in or is associated with any of the following:

(d) a rupture of the blood vessel, including a rupture of an aneurism of the blood vessel;

(h) an impairment, disturbance or alteration of blood, or blood circulation, within the blood vessel;

(i) an occlusion of the blood vessel, whether the occlusion is total or partial;

(j) any consequential physical harm or damage, including neurological harm or damage;

(1) This section applies to a worker to whom compensation is payable in accordance with section 65(1BA) or (1D), in respect of an injury.

(2) The worker is entitled to be paid compensation under this Division as follows:

(a) if the worker has been paid compensation under section 65 in respect of the injury for a period of 260 weeks in the aggregate:

(i) no other compensation under section 65 is payable to the worker in respect of the injury; and

(ii) no other compensation under this Division, other than under section 71, is payable to the worker in respect of the injury for a cost that was incurred after 12 months after the end of the last of the 260 weeks;

(b) if, because of the operation of section 65(1D), compensation is to be paid to a worker under section 65, other than a worker who suffers relevant permanent impairment at a percentage of the whole person equal to not less than 15%, in respect of an injury for a period of weeks shorter than the period of 260 weeks mentioned in paragraph (a) (the shorter period):

(i) no compensation under section 65 is payable to the worker in respect of the injury and in respect of a period after the end of the shorter period; and

(ii) no other compensation under this Division, other than under section 71, is payable to the worker in respect of the injury for a cost that is incurred after a period that ends more than 12 months after the end of the last of the relevant number of weeks.

relevant number of weeks, in relation a shorter period, means the number of weeks obtained when the number of weeks in the shorter period is subtracted from 260 weeks.

(c) for the benefit of the worker's dependants – the reasonable costs (not exceeding, in the aggregate, any amount prescribed by regulation) of one or both of the following:

counselling service means a service provided to a worker's dependants to assist them to cope with the psychological impact of the death of the worker.

expert financial advice means expert financial advice as prescribed by regulation.

(1) This section applies to a worker who is totally or partially incapacitated for work as the result of an injury.

(2) Subject to this section, the worker is entitled to be paid compensation as follows:

(a) from the date on which a medical practitioner first certifies that the worker is totally or partially incapacitated for work and that the injury is the reason for, or materially contributed to, the incapacity;

(b) in respect of any period during which the worker is certified by a medical practitioner to be totally or partially incapacitated for work, if the injury was the reason for, or materially contributed to, the incapacity.

(3) The weekly amount of the compensation is calculated as the difference between the following amounts:

(b) the worker's normal weekly earnings immediately before the first compensation date.

(4) The weekly amount is in addition to any other compensation to which the worker is entitled under this Part.

(5) The maximum number of weeks during which compensation is payable under this section need not be a continuous period, but may be made up of more than one period of weeks, so long as the following conditions are met:

(b) a medical practitioner certifies that the worker is totally or partially incapacitated during each of those weeks;

(d) the worker suffered actual economic loss during each of those weeks as a result of the incapacity.

(6) If a worker retires before the end of a period during which the worker would otherwise be entitled to compensation under this section:

(a) the retirement does not affect the worker's entitlement to compensation; and

(b) the weekly amount of compensation continues to be calculated after the retirement as if the worker's normal weekly earnings continued despite the retirement.

(1BA) Compensation under this Subdivision for a worker, other than a worker who suffers relevant permanent impairment at a percentage of the whole person equal to not less than 15%:

(a) is payable under this section for a period that does not exceed a period of 260 weeks in the aggregate (which includes the first 26 weeks for which compensation is payable under section 64) in respect of the injury; and

(1D) The following applies for the calculation of the period during which compensation is to be paid to a worker under this section:

(a) if the worker's injury date is 2 years or more before the date on which the worker attains the worker's future pension age and the worker suffers relevant permanent impairment at a percentage of the whole person equal to not less than 15% – the compensation is to be paid:

(i) if the worker's normal retiring age is later than the worker's future pension age – until the worker attains the worker's normal retiring age; or

(b) if the worker's injury date is 2 years or more before the date on which the worker attains the worker's future pension age and the worker suffers relevant permanent impairment at a percentage of the whole person equal to less than 15% – the compensation is to be paid:

(i) if the worker's normal retiring age is later than the worker's future pension age – until the earlier of the following:

(A) the end of the last week in the period of 260 weeks in the aggregate mentioned in subsection (1BA);

(i) the worker's normal retiring age is later than the worker's future pension age and the injury date is within 2 years before the date on which the worker attains the worker's normal retiring age; or

(ii) the worker's normal retiring age is later than the worker's future pension age and the injury date is on or after the date on which the worker attains the worker's normal retiring age; or

(iii) the worker's normal retiring age is not later than the worker's future pension age and the injury date is within 2 years before the date on which the worker attains the worker's future pension age; or

(iv) the worker's normal retiring age is not later than the worker's future pension age and the injury date is on or after the date on which the worker attains the worker's future pension age.

(3) The normal weekly earnings of a worker for the calculation of the worker's loss of earning capacity, or for subsection (8) or (9), at a particular date, are the least of the following amounts:

(b) the amount equal to the percentage of average weekly earnings prescribed by regulation or, if no percentage is prescribed – 250% of average weekly earnings.

N is amount of the normal weekly earnings of the worker immediately before the first compensation date;

A is the amount of average weekly earnings at the particular date mentioned in subsection (3);

C is the amount of average weekly earnings applying at the first compensation date.

(13A) For this section, a worker's relevant permanent impairment is to be assessed as follows:

(a) subject to paragraph (b), the relevant permanent impairment is to be assessed as if it were being assessed under section 72 as permanent impairment for Subdivision C;

(ii) consequential on a physical injury other than a heart attack injury or stroke injury for which compensation is payable under section 58.

(aa) the person receiving the compensation fails to provide to his or her employer a statement of fitness for work under section 91A within 14 days after being requested to do so in writing by his or her employer; or

(i) the statement of fitness for work mentioned in section 82 specifies that the person receiving the compensation is fit for work on a particular date, being not later than 4 weeks after the date of the injury in respect of which the claim was made;

(ii) the person fails to return to work on the particular date or to provide his or her employer on or before that date with another statement as to his or her incapacity for work; or

(b) unless it is a claim for compensation under section 62, 63 or 73 – be accompanied by a statement of fitness for work in a form approved by the Authority; and

(4) if the claim form specifies that the worker is required to authorise the release of information concerning the worker's injury:

(a) the form may specify that the information may be released to one or more of the following persons:

(iii) a legal practitioner, medical practitioner, investigator, accredited vocational rehabilitation provider, or any other person reasonably consulted by the employer or insurer for making a decision as to the payment of the claim for compensation; and

(b) the worker must authorise the release of the information in accordance with the form; and

(d) the costs incurred by the Territory in relation to the Authority's performance of functions under this Act, the Work Health Administration Act or another Act, and generally in relation to promoting work health and safety.

(2) The Authority may establish and maintain procedures for one or both of the following:

(b) payment of mediators participating in the mediation service provided by the Authority.

Part 13 Transitional matters for Workers Rehabilitation and Compensation Legislation Amendment Act 2015

amending Act means the Workers Rehabilitation and Compensation Legislation Amendment Act 2015.

post-commencement injury, in relation to a worker, means an injury to the worker that arises on or after the commencement.

(1) The following provisions, as amended by the amending Act, apply in relation to an injury suffered by a worker only if the injury is a post-commencement injury:

(2) The provisions mentioned in subsection (1)(a), (b), (e) and (f), as in force before the commencement, continue to apply in relation to injuries other than post-commencement injuries as if the amending Act had not commenced.

(1) Section 49, as amended by the amending Act, and section 49A, apply in relation to an injury suffered by a worker only if the injury is a post-commencement injury.

(2) Section 49, as in force before the commencement, continues to apply in relation to an injury other than a post-commencement injury as if the amending Act had not commenced.

(1) Section 62, as amended by the amending Act, applies in relation to the death of a worker only if the death results from, or is materially contributed to by, a post-commencement injury.

(2) Section 62, as in force before the commencement, continues to apply in relation to the death of a worker, other than a death of a worker mentioned in subsection (1), as if the amending Act had not commenced.

The obligation for an insurer or self-insurer to pay amounts under section 121A(1)(d) on and after the commencement applies even if approval, or renewal of approval, of the approved insurer or self-insurer was granted before the commencement.

Part 3 Amendment of Workers Rehabilitation and Compensation Regulations
24 Regulations amended

For section 50A of the Act, the following diseases and qualifying periods are prescribed as specified in the following table:

Disease	Qualifying period
Primary site brain cancer	5 years
Primary site bladder cancer	15 years
Primary site kidney cancer	15 years
Primary non-Hodgkin's lymphoma	15 years
Primary leukaemia	5 years
Primary site breast cancer	10 years
Primary site testicular cancer	10 years
Multiple myeloma	15 years
Primary site prostate cancer	15 years
Primary site ureter cancer	15 years
Primary site colorectal cancer	15 years
Primary site oesophageal cancer	25 years

For paragraph (a)(ii) of the definition working as an active firefighter in section 50A(3) of the Act:

(i) 5 years, if the prescribed disease is primary site brain cancer or primary leukaemia; or

(1) For section 62(5) of the Act, expert financial advice means a financial service for which a person is required to hold an Australian financial services licence, whether or not as an authorised representative or representative of a person who carries on a financial services business.

Australian financial services licence, see Chapter 7 of the Corporations Act 2001.

(1) For section 82(1)(b) of the Act, the following persons are prescribed for issuing a statement of fitness for work for a worker if, because of the worker's isolation, a medical practitioner is unable to issue such a statement:

(a) persons registered under the Health Practitioner Regulation National Law to practise in the nursing and midwifery profession as nurses (other than as students);

(b) persons registered under the Health Practitioner Regulation National Law to practise in the Aboriginal and Torres Strait Islander health practice profession (other than as students).

Provision	Amendment
	omit	insert
*Annual Leave Act*
section 4(1)(a) to (c), at the end		or
section 4(2)	whole subsection	(2) This Act does not affect the operation of the Return to Work Act.
*Cullen Bay Marina Regulations*
regulation 68(4)(a)	Workers Rehabilitation and Compensation Act	Return to Work Act
*Motor Accidents (Compensation) Act*
section 4, definition *workers compensation legislation*	Workers Rehabilitation and Compensation Act	Return to Work Act
*Personal Injuries (Civil Claims) Act*
section 5(4)(e)	within the meaning of the Workers Rehabilitation and Compensation Act	as defined in the Return to Work Act
*Personal Injuries (Liabilities and Damages) Act*
section 4(3)(b)	within the meaning of the Workers Rehabilitation and Compensation Act	as defined in the Return to Work Act
*Stamp Duty Act*
Schedule 2, item 21	Workers Rehabilitation and Compensation Act	Return to Work Act
*Supreme Court Rules*
rule 87.01, definition *Act* and Schedule 1, Form 87A	Workers Rehabilitation and Compensation Act	Return to Work Act
*Victims of Crime Assistance Act*
sections 18(1)(a) and (b), (2) and (5), definition *worker*, 26(3)(i) and 32(1)(k)	Workers Rehabilitation and Compensation Act	Return to Work Act
*Victims of Crime Assistance Regulations*
regulations 13(1)(a) and 26(a)(i)	Workers Rehabilitation and Compensation Act	Return to Work Act
*Work Health Administration Act*
sections 5(1)(b), 7(2)(b) and 14(a)	Workers Rehabilitation and Compensation Act	Return to Work Act
*Work Health Court Rules*
rules 1.08(1), definition *the Act* and 5.02(1)(a) and Schedule, Forms 5A, 5C, 9A, 15E and 15F	Workers Rehabilitation and Compensation Act (all references)	Return to Work Act
Schedule, Form 5A, paragraph (g)	section 126(2)(b)(i)	section 126A(2)(b)(i)

Northern Territory Bills

WORKERS REHABILITATION AND COMPENSATION LEGISLATION AMENDMENT BILL 2015