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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Workers Rehabilitation and Compensation (Reinstatement of
Entitlements) Amendment Bill 2010
A BILL FOR
An Act to amend the Workers
Rehabilitation and Compensation Act 1986.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Workers
Rehabilitation and Compensation Act 1986
4Amendment of
section 3—Interpretation
5Amendment of section
30—Compensability of disabilities
6Amendment of
section 36—Discontinuance of weekly payments
7Amendment of
section 54—Limitation of employer's liability
8Amendment of section 105—Insurance
of registered employers against other liabilities
9Insertion of
sections 105A, 105B and 105C
105AObligation to be insured for
common law liability
105BAssistance to employers with
insurance
105CCorporation insurer of last
resort
Schedule 1—Transitional
provisions
1Discontinuance of weekly payments
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Workers Rehabilitation and Compensation
(Reinstatement of Entitlements) Amendment Act 2010.
This Act will come into operation 12 months after the day on which it
is assented to by the Governor unless brought into operation on an earlier day
fixed by proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Workers Rehabilitation and Compensation
Act 1986
4—Amendment
of section 3—Interpretation
Section 3(1)—after the definition of dependant
insert:
designated common law liability means a liability at common
law within the ambit of section 54(1)(b);
5—Amendment
of section 30—Compensability of disabilities
(1) Section 30(5)—delete "only"
(2) Section 30(5)(b)—after subparagraph (i) insert:
(ia) a place of employment at which the worker is employed by
1 employer and a place of employment at which the worker is employed by
another employer (in which case the journey will be taken to form part of the
employment of the worker by that other employer); or
(3) Section 30(5)—delete "and there is a real and substantial
connection between the employment and the accident out of which the disability
arises"
(4) Section 30(6)—delete subsection (6) and substitute:
(6) For the purposes of this section—
(a) a journey that commences at a worker's residence will not be regarded
as having commenced until the worker has progressed beyond land appurtenant to
the house or other structure in which the worker resides unless the Corporation
determines in the circumstances of a particular case that the journey should
fairly be regarded as having commenced at an earlier point; and
(b) a journey that terminates at a worker's residence will be regarded as
having terminated when the worker reaches land appurtenant to the house or other
structure in which the worker resides unless the Corporation determines in the
circumstances of a particular case that the journey should fairly be regarded as
having terminated at a later point.
6—Amendment
of section 36—Discontinuance of weekly payments
(1) Section 36(4) to (5c)—delete subsections (4) to (5c)
(inclusive) and substitute:
(4) If a worker lodges a notice of dispute disputing a decision by the
Corporation to discontinue or reduce weekly payments under this section within
1 month after the worker receives notice of the decision, the following
provisions apply (unless the worker indicates on the notice of dispute that he
or she does not wish for the operation of the decision to be
suspended):
(a) the operation of the decision is suspended, and the weekly payments
must continue or, if the decision has already taken effect, be reinstated (to
their previous level), until the dispute first comes before a conciliator under
Part 6A;
(b) the Tribunal may further suspend the operation of the decision (from
time to time) to allow a reasonable opportunity for resolution of the dispute by
conciliation or judicial determination (as the case requires) without prejudice
to the worker's financial position in the meantime.
(5) However, if the dispute is resolved by the Corporation's decision on
reconsideration of the disputed decision, the suspension terminates at the end
of the period allowed for the worker to express dissatisfaction with the result
of the reconsideration.
(5a) If the dispute is ultimately resolved in favour of the Corporation,
the Corporation may, at the Corporation's discretion (but subject to the
regulations)—
(a) recover amounts that were paid because of suspension of the operation
of the Corporation's decision from the worker as a debt; or
(b) set off the amounts against liabilities of the Corporation to make
payments to the worker under this Act.
(2) Section 36(5c)—delete "or (15)"
(3) Section 36(15) to (17)—delete subsections (15) to (17)
(inclusive)
7—Amendment
of section 54—Limitation of employer's liability
(1) Section 54(1)—delete "subsection (2)" and
substitute:
this section
(2) Section 54(1)—after paragraph (a) insert:
or
(b) a liability at common law for—
(i) loss of earning capacity on the part of a disabled worker;
or
(ii) non-economic loss suffered by a disabled worker.
(3) Section 54—after subsection (1) insert:
(1a) A liability will only arise under subsection (1)(b)
if—
(a) the occurrence of the compensable disability is wholly or
substantially attributable to—
(i) an act or omission of negligence on the part of the employer;
or
(ii) an intentional tort on the part of the employer; or
(iii) an act or omission constituting a breach of statutory duty on the
part of the employer where the employer knew that his or her act or omission
would constitute the breach, or was recklessly indifferent about whether his or
her act or omission would constitute the breach; and
(b) the compensable disability results in permanent impairment as assessed
in accordance with section 43A; and
(c) the worker's degree of permanent impairment on account of the
occurrence of the compensable disability (as so assessed) equals or exceeds 15%
(as a degree of impairment of the whole person).
(4) Section 54(2)—delete "Subsection (1) does not" and
substitute:
Subsections (1) and (1a) do not
(5) Section 54(3)—after "being a disability that"
insert:
gives rise to a designated common law liability or
(6) Section 54(4b)—after "contribution from the employer"
insert:
unless it is proved that the employer contributed to the occurrence of the
compensable disability on account of an act or omission of negligence on the
part of the employer
(7) Section 54(5)(b)—delete "other than the employer" and
substitute:
(including the employer)
(8) Section 54(7)(a)—after "this Act" insert:
(not being compensation on account of a designated common law
liability)
(9) Section 54(7)(b)—after "this Act" insert:
(including damages on account of a designated common law
liability)
8—Amendment
of section 105—Insurance of registered employers against other
liabilities
Section 105—after subsection (3) insert:
(4) The insurance provided by subsection (1) does not extend to any
designated common law liability under this Act.
9—Insertion
of sections 105A, 105B and 105C
After section 105 insert:
105A—Obligation to be insured for common law
liability
(1) No employer may
employ a worker in employment to which this Act applies unless the employer is
fully insured by an insurer against the employer's liability to pay damages on
account of any designated common law liability to or in respect of all workers
employed in such employment by the employer.
Maximum penalty: $20 000 for each worker so employed not covered by a
policy of insurance required by this subsection.
(2) Despite any other
Act or law, a policy of insurance entered into for the purposes of
subsection (1) may
not be avoided or abrogated on the ground that—
(a) the policy was obtained by a misstatement or non-disclosure;
or
(b) the employer has committed a breach of, or has failed to comply with,
a term, condition or warranty of the policy; or
(c) the employer has failed to comply with a provision of this Act or any
other Act or enactment.
(3) An insurer who is by reason of
subsection (2)
liable under a policy of insurance may, in addition to any other remedy the
insurer may have, recover from the employer liable to pay damages on account of
any designated common law liability—
(a) such sums as the insurer has paid in payment, settlement or compromise
of a claim or judgment against the employer; and
(b) any costs or expenses incurred by the insurer in relation to the
payment, settlement or compromise.
(4) If a policy of insurance has been issued or renewed for the purposes
of this section, the employer must, if so required by the
insurer—
(a) supply the insurer, before the expiration of 1 month from the
date of issue or renewal of the policy, with a written statement, in the
prescribed form, containing an estimate of the total remuneration to be paid by
the employer during the period for which the policy has been issued or renewed
to workers covered by the policy; and
(b) supply the insurer, within 2 months after the expiration of a
period for which the policy was issued or renewed, with a written statement, in
the prescribed form, of the total remuneration actually paid by the employer
during that period to workers covered by the policy.
Maximum penalty: $ 5 000.
(5) This section does
not apply to—
(a) the Crown; or
(b) any agency or instrumentality of the Crown.
(6) No employer or
insurer may directly or indirectly take or receive any money from a worker,
whether by way of deduction from wages or otherwise, in respect of a liability
of an employer to take out insurance under this section, or to pay damages on
account of any designated common law liability under this Act.
(7) A person who contravenes
subsection (6)—
(a) is guilty of an offence; and
(b) is liable to compensate a worker for any monetary loss suffered by
virtue of that contravention.
105B—Assistance to employers with
insurance
(1) If an employer or
prospective employer, after making reasonable attempts to do so, is unable to
obtain the insurance required by
section 105A, or not at
rates commensurate with the risk, the employer may apply to the Corporation for
assistance.
(2) If an application
is made under
subsection (1), the
Corporation must attempt to find an insurer prepared to accept the risk for what
is, in the Corporation's opinion, a reasonable premium.
(3) If the attempts made by the Corporation under
subsection (2) prove
unsuccessful, the Corporation must offer the applicant a policy of insurance in
respect of the relevant risk at a premium approved by the Minister and, if the
employer accepts the offer, must issue such a policy to the employer.
(4) The Corporation is entitled to recoup losses made in respect of
policies of insurance issued by it under this section from the Compensation
Fund.
105C—Corporation insurer of last
resort
(1) If an employer does
not have the insurance required by
section 105A (not being an
employer within the ambit of section
section 105A(5)),
the Corporation will be taken to be the employer's insurer on terms and
conditions prescribed by the regulations.
(2) The premium for
insurance provided under
subsection (1) will
be prescribed by the regulations.
(3) The Corporation is entitled to make payments from the Compensation
Fund to cover any liabilities (at first instance) under the insurance provided
under
subsection (1).
(4) The Corporation is entitled to recover as a debt from an employer for
which the Corporation is an insurer under
subsection (1)—
(a) any premium payable under
subsection (2);
and
(b) such sums as the Corporation has paid in payment, settlement or
compromise of a claim or judgment against the employer on account of a
designated common law liability; and
(c) any other costs or expenses incurred by the Corporation in relation to
a payment, settlement or compromise or otherwise in connection with insurance
provided by this section.
Schedule 1—Transitional
provisions
1—Discontinuance
of weekly payments
The amendments effected by
section 6 of this
Act apply in relation to any discontinuance or reduction of weekly payments
effected by a notice of the WorkCover Corporation of South Australia
given to a worker under section 36(3) of the
Workers
Rehabilitation and Compensation Act 1986 on or after the day on
which this clause comes into operation.