Tasmanian Bills Clause Notes Tasmanian Bills Clause Notes[Index] [Search] [Download] [Bill] [Help]
ASBESTOS-RELATED DISEASES (OCCUPATIONAL
EXPOSURE) COMPENSATION BILL 2011
CLAUSE NOTES1
PART 1 PRELIMINARY
Clause 1 Short Title
Cites the Act as the Asbestos-Related Diseases (Occupational Exposure)
Compensation Act 2011.
Clause 2 Commencement
Provides that the Act is to commence on a day or date to be
proclaimed.
Clause 3 Objects of Act
States that the objects of the Act are to establish a scheme that:
provides fair and appropriate compensation and the payment of
certain expenses in relation to the contraction by persons of ARD
in the course of employment as a workers; and
provides for a prompt and effective resolution of applications for
compensation or for the payment of certain expenses; and
provides an effective and economical mechanism for resolving
disputes relating to applications for compensation or the payment
of certain expenses; and
makes provision in relation to certain judgments and agreements
relating to the contraction by persons of ARD in the course of
employment as workers.
1
Note: In these clause notes:
ARD means asbestos-related disease.
WRCA means the Workers Rehabilitation and Compensation Act 1988.
ACT means the Asbestos Compensation Tribunal.
Commissioner means the Asbestos Compensation Commissioner.
1
Clause 4 Application of Act to Crown
This clause provides that the Act binds the Crown, not only in right of
Tasmania but also so far as the legislative power of Parliament permits,
in all its other capacities.
The Act applies in respect of a worker employed by or on behalf of the
Crown.
A police officer is taken to be employed by the Crown. This clause
mirrors section 4 of the WRCA.
PART 2 INTERPRETATIVE PROVISIONS
Division 1 General
Clause 5 Interpretation
This clause inserts the definitions detailed below in the following order:
"accredited impairment assessor" means a person who is an
accredited medical practitioner under the WRCA and who is authorised
by accreditation under that Act to perform impairment assessments.
"AMA Guides" has the same meaning as it has in the WRCA. This
refers to the American Medical Association Guides to the Evaluation of
Permanent Impairment fourth edition as modified by the WRCA, or
such later edition of those Guides as may be prescribed, as modified by
the WRCA. The Guide is referred to in provisions relating to the
assessment of permanent impairment.
Under section 46(3) of the Act, an assessment of a degree of impairment
is to be undertaken in accordance with any relevant guidelines issued by
the WorkCover Tasmania Board under the WRCA, or if there are no
such guidelines, the AMA Guides. The guidelines issued by the
WorkCover Tasmania Board will be modified so that in effect the 5th
edition of the AMA Guides with some minor modifications, rather than
the 4th edition of the AMA Guides will be used to assess permanent
impairment.
"application for compensation" means an application for
compensation made under section 33(1) or (4) of the Act.
2
Section 33(1) relates to applications made by the person who has a
compensable disease. Section 33(4) relates to applications made by a
member of the family of a person who has a compensable disease.
"approved" means approved in writing by the Commissioner.
"asbestos-related disease" in relation to a person, means a medical
condition that is attributable to the person having been exposed to
asbestos.
"basic salary" means during the year beginning 1 January 2011,
$696.85, and during any subsequent year beginning 1 January the basic
salary for the previous year as varied by the relevant percentage.
This definition is similar to the definition of `basic salary" in section 3(1)
of the WRCA. The entitlement to compensation is linked to a defined
number of compensation units, which is calculated by multiplying the
basic salary by the number of units. By not specifying a figure for the
"basic salary" in subsequent years, there is no need to amend the
legislation to adjust the basic salary annually, as the basic salary will be
automatically adjusted each year.
Refer to the definition for "relevant percentage" for further explanation.
"Chief Commissioner of the Tribunal" means the person who is,
under section 129 of the Act, the Chief Commissioner of the ACT.
Section 129 establishes the ACT and provides that the person who is
the Chief Commissioner within the meaning of the WRCA is the Chief
Commissioner of the ACT.
"commencement day" means the day on which section 29 comes
into force.
Section 29 specifies the circumstances when a person is entitled to
compensation under the Act.
"Commissioner" means the Asbestos Compensation Commissioner
appointed under section 153.
3
"Commissioner of the Tribunal" means a Commissioner within the
meaning of the WRCA.
The definition for "compensable disease" refers to section 6 of the
Act.
Section 6 states that a person has a compensable disease if:
the person has an asbestos-related disease; and
the contraction by the person of the disease is reasonably
attributable to exposure to asbestos in the course of the person's
employment as a worker during a period in which the person's
employment was connected to this State.
"compensation" in relation to a person, means compensation that is
paid or payable to the person under Part 7 or 8.
Part 7 specifies all of the compensation that is payable to a person who
has the ARD, and includes section 72 which specifies the amount of
compensation payable to a person who has an imminently fatal
compensable disease and section 73 which specifies the amount of
compensation payable to a person who has a non-imminently fatal
compensable disease. Part 8 relates to compensation that is payable to
family members rather than the compensable person.
Medical, funeral and travelling expenses as provided for in Part 11 of the
Act, are not included in the definition of compensation. However, Part
10 specifies that a compensable person is entitled to these expenses. A
compensable person is defined in Part 11 as a person who has a
compensable disease and in relation to whom a determination has been
made under section 70 that the person is entitled to compensation
under the Act.
"compensation units" refers to subsection (2) for further
explanation.
A compensation unit is a way of determining the amount of
compensation a person who has a compensable disease is entitled.
Subsection (2) details how the amount of compensation is calculated
using a compensation unit.
"contractor" means a person who enters into a contract for the
provision of services by the person otherwise than as a worker.
4
"degree of impairment" in relation to a person, means the
impairment of the person because of an asbestos-related disease that is
assessed at a percentage of the whole person.
The amount of compensation to which a person is entitled is linked to
the percentage of impairment of the whole person.
"domestic workers compensation insurance policy" means a
policy of insurance that indemnifies the policy holder for liabilities under
the WRCA, or independently of that Act in respect to domestic
workers.
This definition is tied to the definition of policyholder, which is defined
as a person who is required under the WRCA to maintain for the
purposes of that Act a policy of insurance other than a domestic
workers compensation insurance policy.
This definition and the definition of policyholder reflect the
corresponding definitions under section 128A of the WRCA which
relate to special contributions under that Act.
"employer" means the person with whom a worker has entered into a
contract of service or a training agreement and includes:
the Crown, and
the employer of any person who is a member of a class of persons
who are to be taken to be workers under the Act.
This clause largely reflects the corresponding definition of `employer' in
section 3 of the WRCA. The definition is necessary as the entitlement to
compensation under the Bill is linked to whether or not the ARD is
reasonably attributable to exposure to asbestos in the course of
employment as a worker. This in turn is linked to section 12 which
states that a person is a worker if the person entered into or worked
under a contract of service or training agreement with an employer.
"fund" means the Asbestos Compensation Fund established under
section 162(1). The fund comprises all levies and any other money that is
collected or received to fund the scheme.
5
"insurer" means a body corporate authorised under the Insurance Act
1973 (Commonwealth) to carry on insurance business. This covers
insurance businesses that provide worker's compensation insurance.
The definition is necessary as licensed insurers are responsible for
collecting levies from employers who are deemed to be policy holders
under the scheme. Employers who are deemed to be self insurers under
the scheme are responsible for paying levies direct to the
Commissioner.
"levy" means the levy from time to time determined under section
166(1). This is the levy that is determined annually by the Minister to be
payable by employers who are self-insurers or policyholders to fund the
scheme.
"licensed insurer" means an insurer who holds a licence that is in
force under Division 2 of Part IX of the WRCA.
This definition is tied to the definition of `insurer', and largely reflects the
definition of licensed insurer under section 3 of the WRCA.
Licensed insurers are responsible for collecting levies from employers
who are policy holders under the scheme.
"medical evidence" includes but is not limited to including x-rays,
pathology results, lung function test results, spirometry test results and
histopathological test results. This definition is an inclusive rather than
exclusive definition. This means that any medical evidence that is
relevant to the application, may be included as medical evidence, even it
is medical evidence of the type not listed in the definition.
"medical panel" means the medical panel established by the selection
of members of the panel under section 51(1) to determine a medical
question.
Under section 50, the Commissioner establishes and maintains a register
of suitably qualified medical practitioners whose role it is to determine
medical questions in respect to an application for compensation.
6
Section 51 provides that if the Commissioner refers a medical question
to the medical panel, the Commissioner is to select 3 medical
practitioners from the register to form the medical panel who will
determine the medical question.
"medical practitioner register" means the medical practitioner
register established under section 50 of the Act.
Under section 50, the Commissioner establishes and maintains a register
of suitably qualified medical practitioners whose role it is to determine
medical questions in respect to an application for compensation.
"medical professional" means:
a medical panel established under section 51 to determine a
medical question;
a member of a medical panel;
an accredited impairment assessor to whom a medical question is
referred under section 45;
a medical practitioner to whom a medical question is referred
under the Act.
"medical question" refers to section 8 of the Act for further
explanation.
Medical questions are determined by the medical panel in order to
ascertain not only whether there is an entitlement to compensation, but
also the type and amount of compensation to which the person is
entitled.
"medical specialist" in relation to an ARD, means a medical
practitioner who specialises in such diseases or the field of medicine in
relation to diseases of the part of the body in which the disease occurs.
This definition has been included to provide flexibility to the scheme,
and recognizes that asbestos-related diseases may relate to various parts
of the body and not just the respiratory system.
"members of the family" in relation to a person, means:
a spouse of the person, or
a person who has not attained the age of 22 years and who is:
(i) a natural child of the person; or
7
(ii) a surrogate child within the meaning of the Relationships Act
2003; or
(iii) a child who has been adopted by the person; or
(iv) a stepchild of the person who is a member of the family
where that person is nominated as a member of the family
by virtue of section 99(2).
In certain circumstances, the family of a person with a compensable
disease are entitled to compensation. This definition specifies which
family members may be entitled to compensation in those
circumstances.
A stepchild will only be considered a member of the family if, by virtue
of section 99(2) the compensable person has on the application form
indicated that the stepchild is to be treated as that person's natural child.
By virtue of the definition of `spouse' under the Act, a spouse includes a
person to whom the person with a compensable disease is married to or
was married to at the time of death, and a person whom the person
with a compensable disease is in a significant relationship or was in a
significant relationship within the meaning of the Relationships Act 2003
immediately prior to that person's death. This includes de facto and
same sex couples.
"part-time Commissioner of the Tribunal" means a part-time
Commissioner with the meaning of the WRCA.
"party" in relation to a proceeding before the ACT, means:
the Commissioner; and
any person, other than the Commissioner, who has referred the
matter to the ACT; and
any person joined as a party in relation to a proceeding by virtue
of section 127(4) or section 128(3).
Section 127(4) provides that a person may be joined as a party to
proceedings where that person applies under that section for a
determination as to who is a member of the family or the
apportionment of lump sum compensation. Section 128(3) allows the
ACT to join a person with a sufficient interest in the matter as a party
to a proceeding.
8
"person who has a compensable disease" refers to section 6 for
further explanation.
"policyholder" means a person who is required under the WRCA to
maintain for the purposes of that Act a policy of insurance other than a
domestic workers compensation insurance policy.
This definition reflects the corresponding definition of "policyholder"
under section 128A of the WRCA.
The definition is required as the levy to fund the scheme is imposed on
policyholders who are required to maintain a policy of insurance under
the WRCA and self insurers under that Act.
"Registrar" means the Registrar of the ACT under section 133 of the
Act.
Section 133(1) provides that the person who is the Registrar of the
Workers Rehabilitation and Compensation Tribunal is the Registrar of
the ACT.
"relevant employment period" refers to section 7 for further
explanation.
"relevant percentage" in respect of any year beginning 1 January,
means the percentage difference in the average weekly ordinary full-time
earnings of adults in Tasmania between the May immediately before the
start of that year and the immediately preceding May, as evidenced by
statistics published by the Australian Statistician under the authority of
the Census and Statistics Act 1905 (Commonwealth).
The definition reflects the corresponding definition of `relevant
percentage' under the WRCA. The effect of the definition of `relevant
percentage' is to adjust the `basic salary' each year, thereby dispensing
with the need to amend the Act. The `basic salary' is used to determine
the amount of compensation to which a person is entitled.
Refer to definition of `basic salary' for further information.
"self-insurer" means a person who is a self-insurer for the purposes of
the WRCA.
9
A "self-insurer" under the WRCA is defined as an employer who is the
holder of a permit issued under Division 2 of Part IX of that Act. The
definition is required as the levy to fund the scheme is imposed on
policyholders and self insurers.
"spouse" means:
in the case of a person who is living:
(i) a person to whom the person is married; and
(ii) if the person (whether or not he or she is married to a
person) is in a significant relationship within the meaning of
the Relationships Act 2003 with another person,
that other person; or
in the case of a person who is deceased:
(i) the person to whom the deceased person was married at
the time the deceased person died, and
(ii) if the deceased person (whether or not he or she was at
the time of death married to a person) was immediately
before his or her death in a significant relationship within
the meaning of the Relationship Act 2003,
that other person.
In certain circumstances, members of the family of a person with a
compensable disease are entitled to compensation under the Act. The
definition of member of the family includes a spouse.
This definition provides that a person with a compensable disease may
depending on their circumstances have one or more spouse. The
definition provides that a spouse includes a person to whom the person
with a compensable disease is married or was married at the time of
death, and a person with whom the person with a compensable disease
is in a significant relationship or was in a significant relationship within
the meaning of the Relationships Act 2003 immediately prior to that
person's death. This includes de facto couples and same sex couples.
The Relationships Act 2003 provides that if a significant relationship is
registered under the Relationships Act 2003, it is proof of the
relationship. If a significant relationship is not registered however, the
Commissioner or ACT will take into account the circumstances of the
relationship, as detailed in section 4(3) of that Act. This includes for
example, the duration of the relationship, nature and extent of common
residence and numerous other matters.
10
"State" means a State and a Territory of Australia.
"training agreement" has the same meaning as it has in the Vocational
Education and Training Act 1994.
The definition is necessary as entitlement to compensation under the
Act is linked to whether or not the ARD is reasonably attributable to
exposure to asbestos in the course of employment as a worker. This in
turn is linked to section 12 which states that a person is a worker if the
person entered into or worked under a contract of service or training
agreement with an employer.
"Tribunal" means the ACT established under section 129. This
comprises those persons who are the Commissioners, part-time
Commissioners, and Chief Commissioner under the WRCA.
"weekly payment" in relation to a person means the weekly payment
determined in accordance with Division 3 of Part 7.
Under section 84(1) of the Act, a person who has a compensable disease
is entitled to a `weekly payment' if;
they are entitled to compensation and have a non-imminently
fatal ARD; and
a determination has not been made that they have an imminently
fatal ARD; and
the Commissioner is satisfied that the person is partially or totally
incapacitated for work as a result of the ARD; and
the person is an eligible person in respect to the application for
compensation.
Division 3 of Part 7 details the criteria for determining whether a person
is entitled to weekly payments along with the process and formula for
determining the amount of weekly payments to which a person is
entitled.
"worker" means a worker within the meaning of section 12 of the
Act and any person taken to be a worker for the purposes of the Act.
Section 12 states that a person is a worker if the person has or had
entered into or works or worked under a contract of service or training
agreement with an employer.
11
Section 12 is similar to the definition of "worker" in the WRCA. The
definition is necessary as entitlement to compensation under the Act is
linked to whether or not the ARD is reasonably attributable to
exposure to asbestos in the course of employment as a worker.
Subsection (2) details how the amount of compensation is calculated
using a compensation unit. Where the Act refers to a number of
compensation units, the amount is calculated by multiplying the basic
salary by the number of compensation units. Refer to the definition for
`basic salary' for further information.
Subsection (3) of this clause provides that the exercise and performance
of the powers and duties of a local or other public authority is to be
taken to be the carrying on by the authority of a trade or business.
Subsection (3) reflects section 3(3) of the WRCA and is designed to
ensure that all local and public authorities are covered by the legislation.
Clause 6 When person has "compensable disease"
Subsection (1) specifies when a person has a disease which is
compensable. A person has a compensable disease if:
the person has an ARD; and
the contraction by the person of the ARD is reasonably
attributable to exposure to asbestos in the course of the person's
employment as a worker during a relevant employment period in
which the employment was connected with this State.
The entitlement to compensation under this Act hinges on these
elements being established. The person must first be correctly diagnosed
as having an ARD.
If this is established, the applicant must then establish that the
contraction of the ARD is `reasonably attributable' to exposure to
asbestos in the course of employment as a worker, and this must occur
during a relevant employment period which is connected with Tasmania.
This means that there must be a causal connection between the
contraction of the disease and exposure to asbestos at work during a
relevant employment period that is connected with Tasmania.
12
The degree of causation that is required is that the contraction of the
disease must be "reasonably attributable" to exposure to asbestos at
work. It is not necessary to prove that exposure to asbestos was the
major or predominant cause of the disease, as long as it can be proven
that the exposure to asbestos made a `material contribution' to the
contraction of the disease.
The term "material contribution" was discussed in the New South
Wales decision of Workers Compensation (Dust Disease) Board of NSW v
Smith, Munro and Seymour NSWCA 19. In that case, the court stated that
"one factor can contribute to an outcome even though, relative to
another factor, it has a minor effect. All that is required is that the effect
be "material". Any assessment of this materiality is an evaluative
judgment..."
In cases where epidemiological studies can not provide scientific
certainty as to the probability of a material contribution, and further
uncertainty surrounds the worker's experience, a logical reasoned
inference of material contribution based on available expert evidence
may be used.
Where the exposure may have arisen in more than one situation, it is
the occupational exposure to asbestos (or the nature thereof) to which
the disease must be reasonably attributable, in order to satisfy the test.
The requirement to prove the causal connection between the
contraction of the disease and exposure to asbestos at work also
extends to proving that the relevant exposure to asbestos occurred
during a relevant employment period that is connected with Tasmania. It
does not matter that there may be another period during which the
person was exposed to asbestos at work in another State or Territory,
as long as there is a relevant employment period connected to this State
during which the exposure at work occurred.
The term `relevant employment period' is explained further in clause 7,
and the meaning of `connection to this State' is explained in clauses 26
and 27.
Subsection (2) provides that where this Act refers to a person who has a
compensable disease, it includes a person who is deceased and who had,
immediately before he or she died, a compensable disease.
13
This clause only includes deceased persons if they are not otherwise
excluded from being entitled to compensation under this Act. For
example, if the person died more than 12 months prior to the
commencement of this Act, they or their family are not entitled to
compensation under the Act.
Clause 7 Meaning of "relevant employment period"
The purpose of this clause is to define the term "relevant employment
period". This term is used in other provisions in the Bill, including in
clause 6 which sets out when a person has a compensable disease, and in
the state of connection provisions in Division 3 of Part 2.
The definition of relevant employment period is a key element in
determining entitlement to compensation and expenses under the Bill.
A person is only entitled to compensation and expenses if he or she was
exposed to asbestos during a period of employment connected with
Tasmania. Given that asbestos-related diseases are long latency
conditions, a person claiming compensation under the Bill could have an
employment history involving a number of different jobs with different
employers. It will be necessary to ascertain which period of
employment is the relevant one for determining whether the person has
an entitlement under this Bill.
Subsection (1) provides the general, overarching definition of "relevant
employment period" which is clarified in the subsequent subsections.
Under subsection (1), a relevant employment period is a period that a
person (the worker) is continuously employed by an employer. The
scope or duration of the period is defined as beginning on the day that
the worker commences employment with the employer and ending on
the day on which the worker's employment with the employer ceases.
This is regardless of whether the worker is subsequently re-employed by
the employer, for example, under a different contract of service. This
would be a different relevant employment period.
14
Subsection (2) provides that the relevant employment period includes:
a period when the person is in another State for work, and a
period when the person is in this State for work for a continuous
period of more than 6 months; and
the person is exposed to asbestos at work in Tasmania when the
person is in Tasmania for work for a continuous period of more
than 6 months,
the relevant employment period is the period that the person is in
Tasmania for a continuous period of more than 6 months.
For example:
1. Worker A is employed by Employer B for a total period of 12
years. Initially the worker is employed by Employer B to work in
NSW for 10 years. Employer B then transfers Worker A to
Tasmania for a period of 2 years to work in Employer B's
Tasmanian operation/factory. If Worker A is exposed to asbestos
during the 2 year period in Tasmania, the relevant employment
period for the purposes of the Bill is the 2 year period in
Tasmania.
2. Worker C is employed by Employer D for a total period of 5
years. Initially, Worker C is employed to work in Employer D's
factory in Victoria for 3 years. Employer D then sends Worker C
to work in Tasmania for a period of 3 months and then Worker C
returns to Victoria for the rest of the 5 years. The relevant
employment period is the entire 5 years that Worker C was
employed by Employer D, as the period in Tasmania is less than 6
months.
This provision attempts to distinguish temporary working assignments
from longer term transfers. This becomes important in applying the
state of connection provisions in Division 3 of Part 2. The reference
point of 6 months is consistent with cross border provisions applying in
workers compensation legislation.
However, this provision is not intended to apply in the situation where a
worker is employed in Tasmania for a period of less than 6 months in
accordance with a discreet contract of service with an employer (i.e.,
not transferred or temporarily assigned to Tasmania).
For example:
15
3. Worker X is employed by Employer Y to work in Queensland for
a period of 12 years. Worker X ceases employment with
Employer Y. Worker X is then employed by Employer Z to work
in Tasmania for 4 months. The 4 month period in Tasmania can
be a relevant employment period for the purposes of the Bill.
Subsection (3) is intended to clarify the situation where an employer's
(the original employer) business is restructured, or sold or transferred
to another person (the subsequent employer) and the worker remains
with the business after it is restructured, sold or transferred. In this
scenario, subsection (3) provides that the worker is taken to have been
employed by the original employer from the time he or she commenced
employment with the original employer to the time he or she ceased
employment with the subsequent employer. This will constitute the
relevant employment period for the purposes of the Bill.
Subsections (4) and (5) clarify how the relevant employment period is
determined in relation to casual workers. Casual employment can be
irregular making it difficult to determine whether a period of
employment is continuous and when it begins and ends. Subsections (4)
and (5) attempt to overcome these difficulties by deeming that the
period of employment commencing on the first day the worker
performs work for the employer and ending on the last day on which
the worker performs work for the employer (with no further work for
that employer for the following 3 months) is a period of continuous
employment for the purposes of determining the relevant employment
period.
Clause 8 Meaning of "medical question"
This clause provides that a medical question in relation to a person is
any of the following questions:
whether the person has an ARD:
if the contraction by the person of the ARD is reasonably
attributable to exposure to asbestos in the course of the person's
employment as a worker;
if a person has an ARD, whether or not the person is reasonably
likely to die within 2 years from the date on which the question is
determined, and if the person is likely to die within that period,
whether the disease is reasonably likely to be a significant factor
contributing to the person's death;
16
the degree of impairment or incapacity of the person;
if a person has or had an ARD, whether the person may recover
from the disease or has recovered; and
any other question, related to the health of the person that is
relevant to an application for compensation, a claim for expenses,
or an application for variation of lump sum because of increased
impairment that relates to a person.
Medical questions are verified by the medical panel established under
section 51(1) of the Act. The medical questions must be verified by the
medical panel as the entitlement to compensation and the type and
amount of compensation and expenses to which the person is entitled
are determined by the answer to these questions.
Clause 9 References to certificates as to "imminently
fatal" and "non-imminently fatal" diseases
This clause explains that a reference in this Act to a medical certificate
certifying that a person has a non-imminently fatal ARD means a
certificate, given by a medical specialist, certifying that the medical
specialist has examined the person and is of the opinion:
that the person has an ARD; and
the person is not reasonably likely to die within 2 years from the
date on which the certificate is given or if the medical specialist is
of the opinion that the person is reasonably likely to die within 2
years from the date on which the certificate is given, the ARD is
not reasonably likely to be a significant factor contributing to the
person's death.
Subsection (2) explains that a reference in this Act to a medical
certificate certifying that a person has an imminently fatal ARD means a
certificate, given by a medical specialist, certifying that the medical
specialist has examined the person and is of the opinion:
that the person has an ARD; and
that the person is reasonably likely to die within 2 years from the
date on which the certificate is given; and
the disease is reasonably likely to be a significant factor
contributing to the person's death.
The differentiation between an imminently fatal ARD and non-
imminently fatal ARD is necessary as the entitlements depend on
whether the ARD is imminently fatal or non-imminently fatal. The term
17
`significant factor contributing' to death has been used rather than
`cause' of death, as it acknowledges that in many cases an ARD can cause
complications which can be a significant factor which contributes to the
person's death.
Clause 10 References to application for compensation
relating to a person who has a compensable
disease
This clause explains that a reference in this Act to an application for
compensation in relation to a person who has a compensable disease, is
a reference to:
an application for compensation made by the person who has or
who claims in the application to have a compensable disease; or
an application for compensation made by a member of the family
of a person who has a compensable disease; or
a person who it is claimed in the application has a compensable
disease.
Clause 11 Meaning of "evidence of a person's
occupational history"
This clause defines a "relevant exposure period" as a period during a
relevant employment period, in which it was reasonably likely the person
was exposed to asbestos as a worker.
Subsection (2) specifies that evidence of a person's occupational history
means evidence of any of the following:
employment in a workplace during a relevant employment period
in which a relevant exposure period occurred;
a relevant exposure period;
the employment of the person in a workplace during a relevant
exposure period;
the type of work performed by the person at the workplace
during a relevant exposure period;
the product name of the asbestos to which it is alleged the person
may have been exposed during a relevant exposure period.
Occupational evidence is relevant in determining whether there is the
causal connection between the contraction of the disease and the
exposure to asbestos at work, which is required to be established in
order to prove that a person has a compensable disease.
18
Evidence that may be provided in respect of a person's occupational
history during the relevant exposure period includes, but is not limited
to the following:
pay slips, group certificates, or other documents evidencing
employment;
statement of witnesses in relation to employment as a worker of
the person at a workplace during a relevant employment period
or relevant exposure period, or the possible exposure of the
person to asbestos at that workplace while employed;
evidence of the person being a member of a trade union, holding a
licence, qualification or other authority to engage in a trade or
occupation;
statutory declarations or affidavits, sworn by the person or
another person, as to employment in an occupation by the first
mentioned person.
Division 2 When persons are, or are not, workers
Clause 12 When person is worker
This clause defines a person as a worker if the person is engaged or
works under a contract of service or training agreement with an
employer.
It applies in relation to a contract whether the contract is or was
express or implied, oral or in writing, and in relation to work that is
manual, labour, clerical work in nature or any other type of work.
This clause is similar to the definition of "worker" in section 3(1) of the
WRCA.
Clause 13 Certain contractors and salespeople &c., to be
taken to be workers
This clause specifies that a contractor who:
performs work under a contract made with another person; and
does not sublet the contract or employ any worker to perform
the work; and
does not hold his or her own personal accident insurance during
the period in which the work is performed,
19
is a worker in the employment of the person while performing the
work.
The deeming that such a person is a worker does not apply in relation
to a contract that is incidental to a trade or business regularly carried on
by the contractor in the contractor's own name or under a business or
firm name.
Subsections (1) and (2) are similar to section 4B of the WRCA.
Subsection (3) states that a salesperson, canvasser, collector, or other
person who is paid wholly or partly by commission, is a worker in the
employment of the person by whom the commission is payable, while
they are engaged in activities to which the payment relates.
But subsection (3) does not apply to a person paid wholly or partly by
commission if the commission is received for or in connection with
work incidental to a trade or business regularly carried on by the
salesperson, canvasser, collector or other person or by a firm of which
he or she is a member.
Subsections (3) and (4) are similar to section 4C of the WRCA.
Clause 14 Taxi drivers and hire-car drivers to be taken to
be workers
This clause provides that a person who drives a vehicle as a luxury hire
car, with the consent or authority of a person who holds the licence or
authority in this State to operate the car, is a worker employer by the
holder of the licence or other authority, while the person is driving the
vehicle or performing any associated activity.
This clause reflects section 4DA of the WRCA.
Subsection (2) provides that a person who drives a vehicle as a taxi is
deemed to be a worker employed by the holder of a licence or other
authority to operate the vehicle as a taxi, while the person is driving the
taxi or performing any associated activity.
Subsection (2) reflects section 4DB of the WRCA.
20
Subsection (3) provides that a luxury hire car or taxi is operated as a
luxury hire car or a taxi if it is a luxury hire care or taxi for the purposes
of legislation in Tasmania which is in force at the time the vehicle is
operated.
The deeming provision in this clause does not apply to a driver of a
luxury hire car or taxi if the driver is also the holder of the licence or
other authority.
Subsections (3) and (4) reflect the corresponding sections 4DA(2) and
4DB(2) of the WRCA.
Clause 15 Persons plying vehicles or vessels for hire to be
taken to be workers
This clause provides that a person who is engaged in plying for hire with
a vehicle or vessel, the use of which is obtained from the owner under a
contract of bailment (other than a hire-purchase agreement) in
consideration of the payment of a fixed sum or a share in the earnings of
the vehicle or vessel, is a worker employed by that owner while so
engaged.
This clause reflects section 3(2) of the WRCA.
Clause 16 Jockeys to be taken to be workers
This clause defines the following terms.
"Racing licence" means a licence or other authority authorising a
person to ride horses in races or official trials;
"relevant activity" means training a horse, or engaged in associated
activities, in preparation for riding a horse for fee or reward";
"Tasracing" means Tasracing Pty Ltd formed under the Racing
(Tasracing Pty Ltd) Act 2009.
Subsection (2) provides that a jockey or apprentice is deemed to be a
worker employed by Tasracing while performing a relevant activity
during a period in which he or she holds a racing licence, if he or she
was at the beginning and end of that period:
21
engaged to ride a horse for fee or reward at a race meeting or
official trial held in Tasmania;
engaged to ride a thoroughbred horse in a training session in
Tasmania conducted by a person authorised under a law of this
State to train horses for racing.
In determining any compensation payable to such a jockey or apprentice:
he or she is taken to have been continuously employed by
Tasracing for the period during which he or she has continuously
held a racing licence; and
any earnings from riding engagements in another State during the
12 months immediately before the period of his or her application
for compensation, or during the period for which he or she held a
racing licence, are taken to be earnings received in the
employment of Tasracing.
The normal weekly earnings of a person to whom subsection (2) applies
are not to be more than 2 times the basic salary.
Subsections (3) and (4) are relevant for the purposes of calculating a
person's entitlement to weekly payments if they are incapacitated
around the time of making the application for compensation.
This clause is similar to section 4DC of the WRCA but has been
modified to reflect the latent nature of ARD and acknowledges that
ARD are contracted in a manner quite different to injuries usually
associated with being a jockey.
Clause 17 Ministers of religion taken to be workers
This clause provides that a Minister of religion is deemed to be a worker
in relation to the carrying out of his or her activities on behalf of the
church.
This clause is similar to section 3(4) of the WRCA.
22
Clause 18 Persons may be prescribed to be workers
This clause provides that a person, who is a member of a class of
persons that is prescribed, is a worker in relation to the carrying out of
an activity prescribed for the purposes of this section.
The clause provides a mechanism for a class of people who perform a
particular activity to be deemed a worker.
Clause 19 Volunteers engaged in fire-fighting or fire
prevention operations to be taken to be
workers
This clause defines "fire-fighting operations" as including:
any act that is necessary or expedient for or directed towards
extinguishing a fire, preventing the spread of a fire, saving life or
preventing injury to persons, preventing property from being
destroyed or damaged, or providing sustenance for persons
performing any of these acts, or taking action to prevent the
outbreak of fire; and
undergoing training in relation to all or any of those acts.
"Fire-fighting person or body" means the:
the Secretary of the responsible Department in relation to the Fire
Service Act 1979; or
the State Fire Commission within the meaning of that Act; or
any brigade within the meaning of that Act.
"Fire prevention operations" means any operations carried on or
any work or other acts done for the purpose of preventing the outbreak
of fire or abating the danger of fire, and includes the undergoing of
training in relation to any of those operations, acts or work.
Subsection (2) provides that a person, who as a volunteer engages in
fire-fighting operations or fire prevention operations with the consent
of, or under the authority of, or in cooperation with a fire-fighting
person or body, is deemed to be a worker employed by the Crown,
while they are engaged in this activity.
A person engages in the operations mentioned in subsection (2) as a
volunteer only if the person engages in the operations other than under
23
a contract for services, contract of service or a training agreement with
a fire-fighting person or body.
Any meeting, competition or demonstration related to the prevention,
control or extinguishment of fires is taken to be training.
This clause reflects the provisions of section 5 of the WRCA.
Clause 20 Volunteers engaged in providing ambulance
services to be taken to be workers.
This clause defines an "ambulance provider" as the Secretary of the
responsible Department in relation to the Ambulance Service Act 1982, or
the Director or any officer of the Ambulance Service.
Subsection (2) provides that the terms "ambulance services", "Director"
and "officer of the Ambulance Service" have the same meaning as they
have under section 3 of the Ambulance Service Act 1982.
A person who as a volunteer engages in ambulance services with the
consent, authority, or in cooperation with an ambulance provider, or in
pursuance of an arrangement made with the person by the Director in
the exercise of the performance of the Director's functions under the
Ambulance Service Act 1982, is deemed to be a worker employed by the
Crown while they are engaged in that activity.
A person engages in ambulance services as a volunteer only if they
engage in the operations other than under a contract for services,
contract of service or training agreement with the Secretary of the
responsible Department in relation to the Ambulance Service Act 1982 or
the Director.
References to the term engaging in ambulance services include
references to the undergoing of training and instruction in those
services.
This reflects the provisions of section 6 of the WRCA.
24
Clause 21 Police volunteers to be taken to be workers
This clause defines "police operations" as:
marine search and rescue operations within the meaning of the
Marine Search and Rescue Act 1971; and
operations required to search for or bring to safety persons in
danger in the State, persons in need of assistance as a result of
casualty occurring in the State or persons suffering from illness or
injury in the State who require assistance; and
operations required for the purpose of protecting property in
this State.
A person, who as a volunteer performs police operations with the
consent, authority or in cooperation with the Secretary of the
responsible Department in relation to the Police Service Act 2003, is
deemed to be a worker employed by the Crown while engaged in those
activities.
A person performs police operations as a volunteer only if they perform
the operations other than under a contract for services, contract of
service, or training agreement with the Secretary of the responsible
Department in relation to the Police Service Act 2003.
This clause reflects the provisions of section 6A of the WRCA.
Clause 22 Prescribed classes of volunteers to be taken to
be workers
This clause provides that a person who is a member of a class of persons
prescribed, who as a volunteer performs work of a prescribed class,
where that work is of benefit to the State, is deemed to be a worker
employed by the Crown while they are performing that work.
It also provides a mechanism for a class of people who perform
particular work as volunteers, to be deemed workers employed by the
Crown.
The clause reflects section 6B of the WRCA.
25
Clause 23 Certain persons not to be taken to be workers
This clause deems that the following persons are not workers while they
are engaged in any of the following employment or programs:
employment as an outworker;
employment of a casual nature other than for the purposes of the
employer's trade or business;
employment as a member of a fishing boat who is remunerated
wholly or mainly by share in the profits of gross earnings in
respect of that boat;
participating in an approved program of work for unemployment
payment under the Social Security Act 1991 (Commonwealth).
The clause reflects section 4(5) of the WRCA.
Clause 24 Persons who are Commonwealth employees
when relevant exposure to asbestos occurred
not to be taken to be workers
This clause deems that a person, who is a worker under a contract of
service or training agreement with the Commonwealth when the
relevant exposure to asbestos occurred, is not a worker, other than for
the purpose of determining an entitlement to weekly payments under
this Act.
Clause 25 Sportspeople not taken to be workers
This clause deems that a person is not a worker while he or she is under
a contract:
participating as a contestant in any sporting or athletic activity; or
engaged in training or preparation with a view to participating as
a contestant in that activity; or
travelling in connection with participating as a contestant in that
activity,
if under the terms of the contract he or she is not entitled to any
remuneration, other than remuneration for the doing of those things.
This clause reflects section 7 of the WRCA.
Division 3 When employment is connected with this State
26
Clause 26 When employment is "connected with this
State"
Subsection (1) provides a sequential series of tests to determine
whether a worker's employment, during the relevant employment
period, is connected with Tasmania or another jurisdiction. If a worker
"usually" performed their job in a particular State or Territory, then the
employment is deemed to be connected with that jurisdiction. If the
first test does not apply then the "State of connection" will be
determined according to the second test of where the worker was
usually based for the purposes of work during the relevant employment
period. If that test does not identify a particular State, the "State of
connection" will be where the employer's "principal place of business" in
Australia was located during the relevant employment period.
Subsection (2) provides that even if a worker happened to be outside
Tasmania when (occupationally) exposed to asbestos, compensation may
be payable under the Act as long as the worker's employment, during
the relevant employment period, was connected with Tasmania.
Subsection (3) provides a test to establish a "State of connection" for
workers working on ships. If the tests under subsection (1) do not
apply, a worker's employment, while working on a ship in a relevant
employment period, is connected to the jurisdiction in which the ship
was registered. If the ship was registered in more than one State during
the relevant employment period, the State of connection is the State
where the ship was last registered during that period.
Subsection (4) provides for exceptional circumstances where none of
the tests in subsections (1) or (3) identify a "State of connection". This
final, last resort test provides that the worker's employment is
connected with Tasmania if it is reasonably likely that the worker was
exposed to asbestos in the course of the worker's employment in
Tasmania and the worker is not entitled to compensation for an
asbestos-related disease in another State, Territory or place outside
Australia. This is conditional upon there being no place outside Australia
that the worker is entitled to compensation for the same injury.
Subsection (5) specifies that when deciding whether a worker "usually
worked" in a State during the relevant employment period (as per the
first test of connection under subsection (1)(a), consideration must be
given to the worker's occupational history including during the relevant
27
employment period. Regard must also be had to any part of the relevant
employment period that a worker worked or was in a State (be it
Tasmania or a different State) for the purposes of employment
regardless of whether the worker is regarded under that State's laws
(relating to workers compensation or compensation for asbestos-related
diseases) as having been working or employed in that State. However,
temporary arrangements where a worker works in a State for six
months or less are not to be taken into account.
Subsection (6) states that compensation is not payable under the Act if
the worker was employed on a ship and the Commonwealth Seafarers
Rehabilitation and Compensation Act 1992 applies to the worker's
employment. This prevents double dipping.
Clause 26 reflects section 31A of the WRCA.
Clause 27 Determination of State of connection by
Commissioner or Tribunal
Subsection (1) provides that when ascertaining whether Tasmania is the
jurisdiction connected with the worker's employment during the
relevant employment period, the Commissioner or ACT must
determine the "State of connection" according to the tests in section 26.
Subsection (2) specifies that a determination of "State of connection"
does not have to be made under subsection (1) if a previous
determination is to be recognised under clause 28, e.g., if a court or
Tribunal of Tasmania or another State has previously made a
determination about the State of connection in respect of the relevant
employment period.
Subsection (3) provides that a person who makes an application, or the
Crown which includes the Commissioner, may refer to the ACT a
question as to which State is the State of connection.
The referral to the ACT may not be made if a determination as to the
State of connection is to be recognised under clause 28 in relation to
the same relevant employment period.
This clause reflects sections 31B and 31C of the WRCA.
28
Clause 28 Recognition of previous determinations of
State of connection
This clause applies in relation to a relevant employment period if a
determination as to State of connection in relation to that period is
made by the ACT, a court or Tribunal of another State with a
corresponding provision of law, or a court of this State or another State
in respect to a claim for damages.
The State determined as the State of connection under this section by a
court or Tribunal, is to be recognised as the State of connection.
A determination by a court or Tribunal in relation to the State of
connection may be appealed.
If the determination as to State of connection is changed on appeal, the
change is to be recognized under this section.
This clause reflects section 31D of the WRCA.
PART 3 ENTITLEMENT TO COMPENSATION
Clause 29 Persons with compensable disease entitled to
compensation
This clause provides that a person who has a compensable disease, and
in relation to whom there is a determination by the Commissioner or
ACT that the person has an imminently fatal ARD, is entitled to
compensation under the Act.
Subsection (2) provides that a person who has a compensable disease,
and in relation to whom there is a determination by the Commissioner
or ACT that the person has a non-imminently fatal ARD and there is no
determination that the person has an imminently fatal-ARD, is entitled
to compensation under the Act, but only if the degree of permanent
impairment of the whole person is 10% or more.
If the degree of impairment has not reached 10% or more at the time
the application is made, the application will be placed in a holding pattern
until at least 10% impairment is reached.
29
Subsection (3) provides that if a person has received compensation in
relation to an ARD because he or she had a non-imminently fatal ARD
and received compensation for that disease under this section, that
person is not prevented from being entitled to further compensation
under this section for that same ARD or another ARD that is an
imminently fatal ARD.
In these circumstances, the person may be entitled to receive additional
lump sum payments as a result of an increase in the whole person
impairment of the person.
Clause 30 Entitlement to compensation when person
contracts another compensable disease
This clause provides that a person, who has received compensation
under the Act in relation to an imminently fatal ARD under section
29(1), is not entitled to further compensation in relation to a different
ARD, whether or not the different disease is a non-imminently fatal or
imminently fatal ARD.
Subsection (2) clause provides that a person, who has received
compensation under the Act in relation to a non-imminently fatal ARD
under section 29(2), is not entitled to further compensation in relation
to a different ARD.
Subsection (3) provides that subsection (2) does not prevent a person
making an application for compensation for more than one ARD.
This clause recognises that a person may receive compensation for a
non-imminently fatal ARD, and they may then develop an imminently
fatal ARD which is a different disease to the one for which
compensation was received as a non-imminently fatal ARD. This clause
allows a person to make another application for compensation in those
circumstances.
Subsection (4) provides that subsection (2) also does not prevent a
person from receiving further lump sum compensation under section 75
or 77 for an increase in the impairment of the person, where the
increase in impairment is wholly or partly because he or she has an ARD
that is different to the non-imminently fatal ARD in relation which he or
she received compensation under section 29(2).
30
Subsection (2) also does not prevent a person from receiving further
compensation by way of an increase in the amount of weekly payments
by virtue of section 80, because his or her degree of incapacity has
increased wholly or partly because he or she has a ARD that is different
to the non-imminently fatal ARD in relation to which he or she received
compensation under section 29(2).
Clause 31 Members of family of person who has
compensable disease entitled to compensation
This clause provides that a person is deemed to be a relevant deceased
person if she or she is a person with a compensable disease, he or she
dies, and an ARD was reasonably likely to be a significant factor
contributing to that person's death.
Subsection (2) provides that unless the Act determines otherwise, a
person is entitled to compensation under the Act:
if he or she is a member of the family of a compensable person
who is a relevant deceased person and a person to whom all or
part of compensation payable under this Act may be provided in
accordance with Schedule 1; and
the relevant deceased person died within 12 months before
commencement day.
Subsection (3) provides that unless the Act determines otherwise, a
person is entitled to compensation under the Act:
if he or she is a member of the family of a compensable person
who is a relevant deceased person and a person to whom all or
part of compensation payable under this Act may be provided in
accordance with Schedule 1; and
the relevant deceased person dies after commencement day.
Schedule 1 details how lump sum compensation is to be distributed
among members of the family.
However, a person however is not entitled to compensation in relation
to a relevant deceased person if that person died more than 12 months
before commencement day.
31
Subsection (5) provides that a person is not entitled to compensation in
relation to a relevant deceased person if:
the Commissioner has determined that the relevant deceased
person is entitled to lump sum compensation equal to the
maximum amount of lump sum compensation to which the
relevant deceased person is entitled; or
the Commissioner has made more than one determination that
the relevant deceased person is entitled to lump sum
compensation and the total of those lump sums equal the
maximum amount of lump sum compensation to which the
relevant deceased person is entitled.
This clause is designed to prevent compensation being paid twice to a
compensable person and their family. Although it only applies where a
determination has been made by the Commissioner that the relevant
deceased person will receive the maximum amount of lump sum
compensation to which they are entitled under the Act.
Subsection (6) provides that the maximum amount of lump sum
compensation payable in relation to a relevant deceased person is 360
compensation units, which is approximately $250,000, plus the number
of compensation units whichever applies to the relevant deceased
person under sections 72(2)(b) or 72(4)(b).
Section 72(2)(b) provides for an additional lump sum payment to be
made based on the age of the person on commencement day, where the
imminently fatal ARD was correctly diagnosed and the person was
notified of the diagnosis before commencement day.
In the case of section 72(4)(b), an additional lump sum payment may be
made based on the age of the person on the day on which the person is
first notified by a medical specialist who has correctly diagnosed that the
person has an imminently fatal ARD.
These age based lump sum payment amounts are prescribed in the
regulations.
Clause 32 Assumptions as to exposure as a worker
This clause provides that where a person who has an ARD was
employed as a worker for a period of at least 12 months (whether
32
continuous or not) during a relevant employment period that is
connected with this State:
at a workplace at which at the time of that employment products
containing asbestos were manufactured; and
in an occupation in which it may reasonably be assumed a person
was likely to have been exposed to asbestos in the ordinary
course of his or her duties as a worker,
it is deemed that the contraction of the ARD by the person is
reasonably attributable to exposure to asbestos in the course of the
person's employment.
The deeming provision applies to a person whether or not the person
was, or may have been exposed to asbestos in a non work environment.
This clause recognises that any exposure that the person may be
subjected to outside the work environment is likely to be negligible in
comparison to their exposure in the work environment where that
work environment involves the manufacture of asbestos related
products.
A workplace at which products containing asbestos were manufactured
includes, but is not limited to premises owned or occupied by the
manufacturer where the products were manufactured, packed, stored or
assembled.
Products containing asbestos are deemed to be manufactured by a
principal manufacturer whether the product consists of an object
containing asbestos which is manufactured by the principal manufacturer
or an object that has been manufactured by another manufacturer which
is made into or forms part of another object manufactured by the
principal manufacturer.
PART 4 APPLICATIONS FOR COMPENSATION
Division 1 How applications to be made
Clause 33 Applications for Compensation
A person, who has a compensable disease as defined by section 6, may
make an application for compensation by lodging the application with the
Commissioner.
33
An application must be in an approved form.
Subsection (2) requires that an application for compensation is to be
accompanied by:
a relevant medical certificate;
evidence of the occupational history;
other evidence relevant to determining whether the person has an
ARD; and
other evidence in respect of exposure, whether or not this may
have been as a result of employment as a worker.
A relevant medical certificate is a medical certificate from a medical
specialist in the field to which the disease relates, which certifies that the
person has a non-imminently fatal ARD or an imminently fatal ARD.
Subsection (4) provides that a member of the family of a person who has
a compensable disease may also make and lodge an application for
compensation in an approved form with the Commissioner.
Subsection (5) details what must accompany an application made by a
member of the family. This includes:
evidence of the occupational history;
other evidence relevant to determining whether the person has an
ARD; and
evidence in respect of exposure, whether or not this may have
been as a result of employment as a worker;
evidence that the person has died and date of death; and
evidence, if any is available, that an ARD was reasonably likely to
have been a significant factor contributing to the person's death.
Evidence must be provided that the ARD was reasonably likely to have
been a significant factor contributing to the death.
Clause 34 Applications in relation to imminently fatal
disease not required in certain circumstances
This clause provides that if the Commissioner previously determined an
application and found that the person had a non-imminently fatal ARD,
the medical panel then determines that the person has an imminently
fatal ARD and the person is alive at the time that the medical panel
makes its determination, the Commissioner after receiving this
information is to make a determination as if the person has made a
34
further application for compensation, the Commissioner has referred
medical questions to the medical panel, and the determination made by
the medical panel in relation to the imminently fatal ARD forms part of
the determination made by the medical panel.
In these circumstances, a person who had a non-imminently fatal ARD
can provide a medical certificate to the Commissioner, certifying that
the person has an imminently fatal ARD.
If the Commissioner receives the medical certificate before 6 months
after the certificate is given and the person is alive at the time the
Commissioner receives the certificate, the application under this section
is to be taken to be a fresh application and the medical certificate is to
be taken to be the certificate accompanying the application.
In effect this clause means that the person does not need to go through
the whole application process again if a determination has previously
been made that they have a non-imminently fatal ARD and it is
subsequently verified that they have an imminently fatal ARD.
Clause 35 Application by family members to be made
jointly
Applications for compensation by members of the family of the person
are to be made jointly with other members of the family, except if the
ACT determines otherwise.
A member of the family can ask the ACT to determine whether an
application for compensation may be made even if the application is not
made jointly with other members of the family as required by this clause.
The ACT may determine that an application may be made by a member
of the family, and it need not be made jointly, if the ACT is satisfied the
other persons cannot be contacted, are unwilling to be joined or for any
other reason if it would be unjust to refuse to permit the application.
Division 2 Time in which applications to be made
35
Clause 36 If diagnosis of imminently fatal asbestos-
related disease occurs before commencement
day
A person who has a compensable disease who is given a medical
certificate which correctly certifies that they have an imminently fatal
ARD before commencement day, may only make an application for
compensation within 12 months after commencement day, or a period,
if any, which is determined by the Commissioner or ACT.
Clause 37 If diagnosis of imminently fatal asbestos-
related disease occurs after commencement
day
A person who is given a medical certificate which correctly certifies that
they have an imminently fatal ARD after commencement day, may only
make an application for compensation within 12 months after the day on
which the certificate is given or a period, if any, determined by the
Commissioner or ACT.
Where a person receives two certificates, the day on which the first
correct certificate is given is deemed to be the day on which the
certificate is given.
Clause 38 No time limitation where diagnosis of non-
imminently fatal asbestos-related disease
An application may be made at any time by a person who has a non-
imminently fatal ARD.
Clause 39 If person who has compensable disease dies
An application relating to a person who had a compensable disease and
who died within 12 months before commencement day, may only be
made by the members of the family if the application is made within 12
months after commencement day, or a period, if any, determined by the
Commissioner or ACT.
An application relating to a person who had a compensable disease and
who dies after commencement day, may only be made by the members
of the family if the application is made within 12 months of the death of
36
the person or a period, if any, determined by the Commissioner or
ACT.
Clause 40 Extension of time to make application for
compensation
A person may apply to the Commissioner seeking an extension of time
to make an application for compensation.
The Commissioner must grant the extension, for a period determined
by the Commissioner, if the failure to make the application was caused
by a mistake or the person was absent from the State during all of the
12 month period.
The Commissioner may grant the extension, for a period determined by
the Commissioner, if he or she is satisfied there was a reasonable cause
for the failure to make the application in the required 12 month period.
In determining a `reasonable cause', the Commissioner is to have regard
to any difficulty in obtaining evidence and whether the person within the
12 months period, has taken all reasonable steps to attempt to obtain
the evidence.
A person may refer a determination of the Commissioner to the ACT.
The ACT may permit the application for extension of time to be made
within a period specified by the ACT.
Division 3 Initial consideration of applications
Clause 41 Commissioner may require further
information to be provided by the applicant
If there is insufficient evidence on the application to enable the
Commissioner to make a determination in relation to the application,
the Commissioner may by notice to an applicant, request the person to
provide further information, specify the date by which the information is
to be provided, and notify the person that the Commissioner may refuse
or reject the application until it is provided or if it is not provided.
The notice must specify that the person has at least 40 business days to
provide the information.
37
The Commissioner may refuse to consider the application until the
information is provided or reject the application if the information is not
provided by the specified date. A person is not prevented from making a
further application if the application is rejected.
Clause 42 Rejection of application
The Commissioner may reject an application if satisfied that it is
frivolous or vexatious.
Clause 43 Rejection of application may be referred to
Tribunal
An application that has been rejected by the Commissioner may be
referred to the ACT. The ACT may determine that the Commissioner
must not reject the application, or it may refuse to make a
determination.
Clause 44 Commissioner to refer assessment of degree
of impairment to accredited impairment
assessor
Before determining an application in relation to a person who has a
compensable disease, the Commissioner must refer an application that
relates to a non-imminently fatal ARD to an accredited impairment
assessor for a determination to be made as to the degree of impairment
of the person. This is to be done before the application is referred to
the medical panel.
The Commissioner is to refer the application to the impairment assessor
within 5 business days after the application is made. The time frame does
not apply if further information is required by the Commissioner, but
once the information is received, the application is to be referred to the
impairment assessor within 5 business days.
A medical question may only be referred to the medical panel if the
Commissioner provides to the medical panel a determination of the
impairment assessor to the effect that the degree of impairment of the
person is 10% or more.
38
The Commissioner is not required to send the application to an
impairment assessor if he or she believes the person is not entitled to
compensation for some other reason.
PART 5 DETERMINATION OF MEDICAL
QUESTIONS
Division 1 Accredited impairment assessors
Clause 45 Referral of accredited impairment assessor of
assessment of degree of impairment
The Commissioner may refer a medical question as to the degree of
impairment of a person who has a compensable disease and who has
made an application for compensation, to an accredited impairment
assessor.
The impairment assessor is to determine the question within 10 business
days after the question is referred. The impairment assessor may
provide his or her determination as to the degree of impairment to the
Commissioner, or may determine that he or she is unable to make the
determination. If he or she is unable to determine the degree of
impairment, the Commissioner is to refer the question to another
impairment assessor.
The medical panel may also refer back to the Commissioner a question
as to the degree of impairment, and the Commissioner is then to refer
the question to another impairment assessor.
Clause 46 Assessment of degree of impairment
The degree of impairment is to be assessed at the time the application
for compensation is made, or a later time if that is approved by the
Commissioner.
Assessments are to be undertaken by an impairment assessor in
accordance with:
any relevant guidelines issued by the WorkCover Tasmania Board
under the WRCA; or
if there are no guidelines, the AMA Guides; or
if there are no guidelines and the AMA Guides are not applicable,
the method prescribed, if any, under section 72 of the WRCA.
39
In making the assessment, the impairment assessor is not to take into
account any psychiatric or psychological injury, impairment or symptoms
arising as a consequence of or secondary to the disease. Also, the
degree of impairment may comprise a combination of impairments
arising out of the same or various ARDs, which are to be assessed
together using the combination tables in the AMA Guides or as modified
by the relevant guidelines by the WorkCover Tasmania Board.
These provisions are similar to section 72 of the WRCA.
Division 2 Reference of medical question to medical panel
Clause 47 Medical questions to be referred to medical
panel
The Commissioner must refer to a medical panel all the medical
questions specified in section 8, if the application has not yet been
determined and the Commissioner has not rejected or does not intend
to reject the application.
This requirement does not apply to a medical question which relates to
the degree of impairment or incapacity if the application is accompanied
by a medical certificate which certifies that the person has an imminently
fatal ARD.
After an application has been determined, the Commissioner may refer
any medical question to the medical panel. If a question is referred back
to the Commissioner by a medical panel because it is unable to agree,
the Commissioner must refer the medical question to a fresh medical
panel.
The Commissioner is not required to refer a medical question to the
medical panel, if he or she is of the opinion that there are other reasons
for deciding the person is not entitled to compensation.
Clause 48 Time for referring medical questions to
medical panel
A medical question is to be referred by the Commissioner to the
medical panel within 5 business days after the application is made.
40
The time limit does not apply if the application needs to be referred to
an impairment assessor first, but it does apply once the impairment
assessor's determination has been received by the Commissioner.
Similarly, if the Commissioner has requested a person to provide further
information that relates to a medical question, the time limit does not
apply, but it does apply once the information requested is received.
If information has been requested that relates to a medical question and
the matter has been referred to an impairment assessor, the time limit
only applies once all of the information has been received.
If the medical panel refers a medical question back to the Commissioner,
the Commissioner is to refer the medical question to a fresh medical
panel within 5 business days after receiving the notice from the first
medical panel.
Clause 49 Commissioner to provide opinions of assessors
and other medical practitioners to medical
panel
The Commissioner is to provide the medical panel to which a medical
question has been referred, with all the relevant information that the
Commissioner has received from an impairment assessor or medical
practitioner, and any other information that is likely to assist the medical
panel in determining the medical question.
Division 3 Formation of medical panel
Clause 50 Register of suitably qualified medical
practitioners
The Commissioner must establish and maintain a register of
practitioners who are suitably qualified and willing to be selected on the
medical panel.
For the purposes of the Act, a medical practitioner is deemed to be
suitably qualified if he or she is a specialist in a field of medicine in which
ARDs occur.
This clause is similar to section 50 of the WRCA.
41
Clause 51 Selection of members of the medical panel
Where a medical question is referred to a medical panel, the
Commissioner is to select 3 medical practitioners from the register to
form the medical panel. Medical practitioners who are specialists in the
field of medicine in which the ARD occurs, and to which the medical
question relates, are if reasonably practicable, to be selected to form the
medical panel.
If the medical question relates to more than one ARD, if reasonably
practicable, a medical practitioner who is a specialist in the field of
medicine in which each of the diseases occurs, and to which the medical
question relates, should be selected to form the medical panel.
A medical practitioner must not be selected to form the medical panel if
they have previously been involved in the treatment or examination, or
provided services to the person in respect to the ARD, or if the medical
practitioner informs the Commissioner that there may be a conflict of
interest.
A member of the panel is entitled to remuneration determined by the
Minister.
This clause is similar to section 50 of the WRCA.
Division 4 Referrals to medical practitioners
Clause 52 Medical panel may refer medical question to
medical practitioner
A medical panel may refer a medical question, referred to it by the
Commissioner, to a medical practitioner, whether or not an application
has already been determined.
Clause 53 Commissioner is to refer to medical
practitioner person receiving weekly payments
A person, who is receiving weekly payments because they are
incapacitated for work, is to have the medical question as to the degree
of incapacity, referred to a medical practitioner once in a calendar year.
42
Clause 54 Opinion of medical practitioner to whom
medical question referred
A medical practitioner who is referred a medical question, may provide
their opinion to the medical panel, if they have referred to the question,
or the Commissioner, if he or she has referred the question to the
practitioner.
Division 5 Medical examinations by medical professionals
Clause 55 Person may be required to attend medical
examination or take test
A medical professional who has been referred a medical question may,
by notice request a person to undergo an examination or test, at a time
specified.
The examination or test can only be conducted if the medical
professional considers it is necessary to determine the medical question.
A notice to the person is to specify that if the person refuses or fails
without reasonable grounds to undergo the examination or test, the
Commissioner must refer the matter to the ACT and refuse to deal
with the application.
A medical professional includes a medical panel or member of the panel,
accredited impairment assessor, or medical practitioner who has been
referred a question.
Clause 56 Medical professional may ask person
questions, &c.
A medical professional who has been referred a medical question may
require the person to answer questions, produce or consent to the
production of relevant documents.
The medical profession is to advise the person that if they refuse or fail
to comply with the requirement, the Commissioner must refer the
matter to the ACT and refuse to deal with the application.
43
Clause 57 Refusal by person to assist medical
professional
If a person:
unreasonably refuses or fails to attend for an examination or test
of which they have been given at least 5 business days notice; or
refuses or fails to undergo an examination or test they are
required to undergo; or
obstructs an examination or test; or
unreasonably refuses or fails to answer questions; or
unreasonably refuses or fails to produce relevant documents or
information or consent to their production,
the medical professional is required to advise the Commissioner and the
Commissioner must refer the matter to the ACT.
If this scenario applies to a person who has made an application which
has not yet been determined, whether it is the original application, or an
application relating to increased impairment or incapacity, the
Commissioner may refuse to deal with the application until the ACT has
advised the Commissioner of the following relevant matters. It is
satisfied:
the person has attended an examination or test, has not refused,
failed to undergo or obstructed an examination or test; or
the person has answered questions, produced documents or
information or consented to their production; or
the person's refusal, failure or obstruction was reasonable.
If it is not satisfied of these matters, the ACT may make otherwise
determine the matter.
Clause 58 Determination by Tribunal of matter referred
to in under section 57
If a matter is referred to it, the ACT may suspend the right to
compensation or suspend the right of the person or member of the
family to have expenses paid under Part 11, until the ACT is satisfied of
the relevant matters or the ACT otherwise determines the matter.
The ACT may specify whether suspended compensation is to be paid for
the period of suspension, and it may specify the period of suspension.
44
The relevant matters are whether the:
person has attended an examination or test, has not refused, failed
to undergo or obstructed an examination or test; or
person has answered questions, produced documents or
information or consented to their production; or
person's refusal, failure or obstruction was reasonable.
The ACT must notify the Commissioner of a determination that the
ACT is satisfied of the relevant matters or the ACT has suspended the
person's right to compensation or expenses.
If the Commissioner is notified that the ACT has suspended the person's
right to compensation, the Commissioner must not pay lump sum
payments, must cease making weekly payments, if any, until the
Commissioner is notified by the ACT that it is satisfied of the relevant
matters or the ACT otherwise determines the matter.
If the Commissioner is notified that the ACT has suspended the person's
right to have expenses paid, the Commissioner must not pay any
expenses until the Commissioner is notified by the ACT it is satisfied of
the relevant matters or it otherwise determines the matter.
If the Commissioner determines that compensation is to be paid for a
period during which compensation was suspended, the Commissioner is
to pay the person the compensation for that period.
Clause 59 Representation before medical professional
A person who is having an examination or test is not entitled to be
represented by a person, but they may be permitted by the medical
professional to be represented by a person when they attend for the
examination or test.
Permission may be granted by the medical professional who is
conducting the examination or test.
A person who is having an examination or test is entitled to be
accompanied by a person of his or her choice when the person attends
the examination or test. This clause distinguishes between a person
being accompanied by another person and a person being represented
by another person.
45
Division 6 Determination of medical questions
Clause 60 Determination of medical questions
A medical panel must make a determination on a medical question
referred to it.
If 2 or more members of the medical panel agree to a decision, the
decision is taken to be the decision of the medical panel.
The medical panel may decide a medical question by determining the
question, or by deciding that it is unable to agree. If the medical panel is
unable to agree, the question is referred back to the Commissioner.
A medical panel must notify the Commissioner in writing of its decision.
The notice is to specify the evidence and reasoning used in determining
the question. If the panel is unable to agree, it is to include the reasons.
A notice of the medical panel's decision is to be given to the
Commissioner within 3 business days after the decision is made.
Clause 61 Determinations by medical panel if matter
referred to accredited impairment assessor
A determination of an accredited impairment assessor received from the
Commissioner, is taken to be a decision of the medical panel on that
medical question, unless the medical panel requests the Commissioner
to refer the question to another impairment assessor. In that case, the
determination of the second impairment assessor is taken to be the
decision of the medical panel.
The medical panel may, within 15 business days after receiving from the
Commissioner a determination from an impairment assessor, request
the Commissioner to refer the question to another impairment
assessor.
Clause 62 Determination by medical panel of whether
person has imminently or non-imminently
fatal disease
A medical panel which is satisfied that a person has a compensable
disease is to determine whether the person has an imminently fatal or
46
non-imminently fatal ARD. This occurs prior to the Commissioner
having made a determination that the person is entitled to
compensation.
The medical panel may make the same determination after an application
for compensation has been determined by the Commissioner.
The medical panel is to determine a person has an imminently fatal ARD
if it is satisfied that:
the person has an ARD; and
the person is reasonably likely to die within 2 years from the date
on which the medical panel makes its determination; and
an ARD is reasonably likely to be a significant factor contributing
to the person's death.
The medical panel is to determine a person has a non-imminently fatal
ARD if it is satisfied that:
the person has an ARD; and
the person is not reasonably likely to die within 2 years from the
date on which the certificate is given; or
if the person is reasonably likely to die within 2 years from the
date on which the medical panel makes its determination, an ARD
is not reasonably likely to be a significant factor contributing to
the person's death.
Clause 63 Time in which medical panel to make
determination
A medical panel is to make a decision on a medical question as soon as is
practicable, and in any event within 15 business days after the question is
referred to it.
The time limit does not apply if the medical panel refers the person to a
medical practitioner for an examination or test, or requires the person
to under an examination or test. In such a case, the time limit to make
the decision applies after the medical panel receives the determination
from the medical practitioner or the examination has been completed or
the results of test are received.
If the medical panel requests the Commissioner to refer a question on
impairment to another impairment assessor, the time limit does not
47
apply. In such a case the time limit applies once a copy of the decision of
the impairment assessor is received from the Commissioner.
Clause 64 Medical panel to determine own procedure
Unless determined otherwise in regulations, if any, the medical panel
may determine its own practice and procedures.
Clause 65 Medical panels not bound by rules of evidence
The medical panel or its members are not bound by the rules of
evidence and may inform itself, or himself or herself in any manner the
panel member thinks fit.
Division 7 Commissioner to pay costs of certain
examinations and tests
Clause 66 Commissioner to pay for costs of tests or
examinations by accredited impairment
assessors
Where an application has not been referred to the medical panel
because the Commissioner has not received a determination that the
degree of impairment of the person is 10% or more, the Commissioner
is liable for the costs of an examination or test by an impairment
assessor once in a calendar year, to determine the degree of impairment
of the person.
However, this only applies if the person has a compensable disease, a
determination has been made that the person has a non-imminently fatal
ARD, the Commissioner has not determined that the person has an
imminently fatal ARD, and the Commissioner has not determined that
the person has a degree of impairment of 51% or more.
The Commissioner will also be liable if a medical question as to the
degree of impairment has been referred by the Commissioner to an
impairment assessor.
48
Clause 67 Commissioner to pay for costs of certain
medical examinations and tests
The Commissioner is liable for the costs of an examination or test
carried by a medical practitioner to whom a medical question has been
referred by the Commissioner, and an analysis required in relation to
the examination or test.
Where the Commissioner has determined that a person is entitled to
compensation, the Commissioner is also liable for the costs of:
one examination or test carried out on the person by a medical
specialist in each calendar year; and
any analysis required in relation to the examination or test.
The Commissioner is also liable for the costs of an examination or test
the person is required by notice to undergo, and any analysis required in
relation to the examination or test.
Clause 68 Applications for payment of costs
If the Commissioner is liable for the costs, the person may apply to the
Commissioner for the payment of those costs.
If an application for costs is made, the Commissioner must reimburse
the person the amount of the costs if they have paid the costs, or pay
the costs to the medical practitioner, impairment assessor or person
who conducted the examination, test or analysis.
PART 6 DETERMINATION OF APPLICATIONS FOR
COMPENSATION
Clause 69 Application for compensation to be
determined after determination of medical
panel
Provides that the Commissioner determines an application for
compensation after receiving a determination from the medical panel.
The Commissioner must make this determination within 5 business days
from receiving the medical panel's determination.
49
The requirement above does not apply if the Commissioner in
accordance with section 47(5), has not referred medical questions to a
medical panel.
Clause 70 Commissioner to determine applications for
compensation
Provides that the Commissioner must determine an application for
compensation. Where the Commissioner determines that a person is
entitled to compensation, the determination must include whether the
person has an imminently fatal or non-imminently fatal ARD. The
amount payable by way of lump sums, and whether the person is entitled
to weekly payments and the amount of such payments, must also be
determined.
Where relevant, the Commissioner must determine an application for
compensation by a member of the family. Where a member of the
family is entitled to compensation, the Commissioner must determine
the amount payable by way of lump sum and the proportions in which
the amount is to be divided between members of the family.
Where the Commissioner determines that a person is not entitled to
compensation, the grounds on which that determination was made must
be set out.
Clause 71 Commissioner bound by medical panel's
determination of medical questions
Provides that the Commissioner is bound by the medical panel's
determination of medical questions.
PART 7 COMPENSATION PAYABLE TO PERSON
WHO HAS COMPENSABLE DISEASE
Division 1 Compensation payable to person who has
compensable disease
Clause 72 Compensation payable to person who has
imminently fatal compensable disease
A person, who has a compensable disease that was correctly diagnosed
by a medical specialist before commencement day, is entitled to lump
50
sum compensation of 360 compensation units, which is approximately
$250,000, and the number of compensation units which are prescribed
in regulations for a person of the age of the person on commencement
day.
Under the regulations, if a person is 65 years or younger, at the time of
commencement, they will be entitled to another 360 compensation
units. The amount to which a person is entitled progressively decreases
until they reach 80 years of age. From this point on, the person is no
longer entitled to the additional lump sum payment based on age.
For the person to be entitled under this section, the person must also
be notified by the medical specialist of the correct diagnosis before
commencement day, and the Commissioner or ACT must have made a
determination that the person has an imminently fatal ARD.
Where the diagnosis occurs after commencement day, the person is
entitled to the same amount except that the lump sum payment based
on the age of the person, is determined by the age of the person on the
day on which the person is first notified by a medical specialist who has
correctly diagnosed that the person has an imminently fatal ARD.
If the person is notified by two medical specialists after commencement
day that they have an imminently fatal ARD, it is taken that they were
notified that they had an imminently fatal ARD on the first day on which
the person is notified of the correct diagnosis.
Where a person has previously been paid compensation for a non-
imminently fatal ARD under the Act, the lump sum amount to which
they are entitled for an imminently fatal ARD, is to be reduced by the
amount that has already been paid to the person.
Clause 73 Compensation payable to the person who has
a non-imminently fatal compensable disease
A person who has a compensable disease, and who has a degree of
impairment of 10% or more but less than 26% because of a non-
imminently fatal ARD, is entitled to 120 compensation units, which is
approximately $83,000.
51
If the person has a degree of impairment of 26% or more but less than
51%, the person is entitled to 240 compensation units, which is
approximately $166,000.
If the person has a degree of impairment of 51% or more, they are
entitled to 360 compensation units, which is approximately $250,000.
The total amount of lump sum compensation that the person receives
under this section for a non-imminently fatal ARD cannot exceed 360
compensation units, which is approximately $250,000. This means that
for example, if a person is first assessed as having 19% whole person
impairment, they will receive 120 compensation units. If they are
subsequently assessed as having 36% impairment, they will receive
another 120 compensation units, making the total amount that they have
received at this point 240 compensation units. If they are then assessed
as having 53% impairment, they will receive another 120 compensation
units, making the total amount that they have received 360
compensation units.
If a person has less than 10% impairment, they are not entitled to
compensation.
The person is only entitled to lump sum compensation under this
section, if the Commissioner or ACT has made a determination that the
person has a non-imminently fatal ARD, but has not made a
determination that the person has an imminently fatal ARD. This
prevents the person from receiving more than 360 compensation units
for a non-imminently fatal ARD and an imminently fatal ARD.
The section also applies if the person has one or more ARDs. In effect
this prevents the person from receiving more than 360 compensation
units if the person has more than one ARD.
In addition to any lump sums payable, the person may also be entitled to
receive weekly payments under Division 3, if the person is incapacitated
for work.
Division 2 Variation of compensation payable
52
Clause 74 Person with increased impairment of less than
51% may apply for variation of lump sum
compensation
This clause provides that a person with a non-imminently fatal ARD can
apply for a further lump sum payment if the degree of impairment has
increased to 26% or more but less than 51%.
This section does not apply if the person has already received more than
120 compensation units for the impairment. For example, if on their first
impairment assessment they have reached 33% impairment and have
already received 240 compensation units.
Any application under this section must be accompanied by a
determination under section 45(3) or certificate of an accredited
impairment assessor, confirming that the person has a degree of
impairment, whether it is because of one or more ARDs, that is 26% or
more but less than 51%.
If the increase in impairment is caused by a different ARD, an application
for variation can still be made under this section, if the Commissioner or
ACT has previously determined that the person is entitled to
compensation under section 70.
Clause 75 Variation of lump sum compensation because
of increased impairment of less than 51%
The Commissioner must grant or refuse an application for variation of
lump sum compensation because of increased impairment of less than
51%.
If necessary, the Commissioner may refer a question as to the degree of
impairment to an impairment assessor. If the increase in impairment is
because of a different disease, the Commissioner must refer the
question to a medical panel for determination as to whether the
different disease is an ARD before granting or refusing the application.
The Commissioner must grant the application if:
satisfied, having regard to a determination made under section
45(3) or a medical certificate of an impairment assessor, that the
degree of impairment is 26% or more but less than 51%, or
53
if the Commissioner receives a determination from the medical
panel that the degree of impairment is because of one or more
ARDs.
This applies even if the increase in impairment is caused by a different
ARD. If the application is granted, the Commissioner must pay the
additional lump sum compensation of 120 compensation units.
Clause 76 Person with increased impairment of 51% or
more may apply for variation of lump sum
compensation
This clause provides that a person with a non-imminently fatal ARD can
apply for a further lump sum payment if the degree of impairment has
increased to 51% or more.
This section does not apply if the person has already received more than
240 compensation units for the impairment. For example, if on their first
impairment assessment they have reached 53% impairment and have
already received 360 compensation units.
Any application under this section must be accompanied by a
determination under section 45(3) or certificate of an accredited
impairment assessor, confirming that the person has a degree of
impairment, whether it is because of one or more ARDs, that is 51% or
more.
If the increase in impairment is caused by a different ARD, an application
for variation can still be made under this section, if the Commissioner or
ACT has previously determined that the person is entitled to
compensation under section 70.
Clause 77 Variation of lump sum compensation because
of increased impairment of 51% or more
The Commissioner must grant or refuse an application for variation of
lump sum compensation because of increased impairment of 51% or
more.
If necessary, the Commissioner may refer a question as to the degree of
impairment to an impairment assessor. If the increase in impairment is
because of a different disease, the Commissioner must refer the
54
question to a medical panel for determination as to whether the
different disease is an ARD before granting or refusing the application.
The Commissioner must grant the application if:
satisfied, having regard to a determination made under section
45(3) or a medical certificate of an impairment assessor, that the
degree of impairment is 51% or more, or
if the Commissioner receives a determination from the medical
panel that the degree of impairment is because of one or more
ARDs.
This applies even if the increase in impairment is caused by a different
ARD. If the application is granted, the Commissioner must pay the
additional lump sum compensation of 120 compensation units if they
have already received 240 compensation units, or 240 compensation
units if they have already received 120 compensation units.
Clause 78 Time in which application under section 74 or
section 76 is to be determined
An application for variation of lump sum payment because of increased
impairment is to be determined by the Commissioner within 10 business
days after receiving the application.
However, the time limit does not apply if a medical question is referred
to an impairment assessor or medical panel, or if a request is made for
further information from the applicant. In these circumstances, the time
limit applies after the determinations of impairment assessor or medical
panel are received, and or the information is received from the person
by the Commissioner.
Clause 79 Person with increased incapacity may apply for
variation of weekly payments
If the Commissioner has made a determination under section 70 that a
person has a non-imminently fatal ARD, but has not made a
determination that the person has an imminently fatal ARD, the person
may apply to the Commissioner for weekly payments or an increase in
the amount of weekly payments because of incapacity to work.
The application is to be accompanied by a medical certificate from a
medical practitioner as to the degree of incapacity of the person.
55
The section applies, even if the increase in incapacity is caused by a
different ARD.
Clause 80 Variation of weekly payments because of
increased incapacity
The Commissioner must grant or refuse an application for variation of
weekly payments because of increased incapacity.
If necessary, the Commissioner may refer a medical question as to the
degree of incapacity to a medical practitioner and may refer the question
to a medical panel. If the increase in incapacity is because of a different
disease, the Commissioner must refer the question to a medical panel
for determination as to whether the different disease is an ARD before
granting or refusing the application.
The Commissioner must grant the application if:
satisfied, having regard to a medical certificate given by a medical
practitioner, or
a determination from the medical panel,
that the degree of incapacity has increased because of an ARD.
This applies even if the increase in incapacity is caused by a different
ARD. If the application is granted, the Commissioner must increase the
weekly payments to reflect the degree of incapacity that the person has
at the time of the application for variation of weekly payments.
Clause 81 Time in which application under section 79 is
to be determined
An application for variation of weekly payments because of increased
incapacity is to be determined by the Commissioner within 10 business
days after receiving the application.
However, the time limit does not apply if a medical question is referred
to a medical practitioner or medical panel, or if a request is made for
further information from the applicant. In these circumstances, the time
limit applies after the determinations of medical practitioner or medical
panel are received, and or the information is received from the person,
by the Commissioner.
56
Clause 82 Commissioner may request further
information be provided
If in respect to an application for variation because of increased
impairment or incapacity, the Commissioner is not satisfied there is
sufficient information, the Commissioner may, by notice, request the
person to provide further information by a particular date. The person
must also be notified that the Commissioner may refuse to consider the
application until the information is provided, and if it is not provided, the
Commissioner may reject the application. The person must be given at
least 40 business days to provide the information.
The Commissioner may refuse to consider the application until the
information is provided, and if it is not provided, the Commissioner may
reject the application.
Division 3 Calculation of weekly payments
Clause 83 Interpretation of Division 3
This clause defines `normal weekly earnings' in relation to a person
who is incapacitated for work, as the average weekly earnings of the
person during the relevant period.
Normal weekly earnings under this scheme are the same as normal
weekly earnings under the WRCA.
"Period of incapacity" is defined as the period of incapacity for work
(whether total, partial or a combination of both) and in the case of
separate periods of incapacity for work, the aggregate of those periods.
"Relevant period" means:
if the person has been continuously employed by the same
employer for 12 months or more before making the application,
the 12 months immediately before the person made the
application, or
if the person has been continuously employed by the same
employer for less than 12 months before making an application,
the period for which he or she was employed immediately before
the person made the application; or
if the person had been employed as a worker for a total of 6
months (whether or not the 6 months consisted of consecutive
57
periods) in the 12 month period before the application is made,
the aggregate of the period of 6 months referred to in that
section.
This definition is used to calculate the amount of weekly payments to
which a person is entitled.
Clause 84 Entitlement to weekly payments
If the Commissioner has determined that a person is entitled to
compensation for a non-imminently fatal ARD and no determination has
been made in respect to an imminently fatal ARD, the Commissioner
may determine that the person is entitled to weekly payments for a
period of incapacity.
However, the Commissioner must be satisfied, having regard to a
medical certificate received from a medical practitioner that the person
is for that period of incapacity, partially or totally incapacitated for work
as a result of the ARD, and the person is an eligible person.
A person is an eligible person if on the date they make the application:
that person was employed for at least 2 months immediately
before they made the application; or
the person had for a total of 6 months (whether or not the 6
months consisted of consecutive periods) in the 12 month period
before the application was made, been employed as a worker, and
would have been employed on the date on which they made the
application had they not been affected by one or more ARDs.
A person is not taken to be a worker under this section, if the only
reason they are a worker under this Act is because they are a volunteer.
Clause 85 Amount of weekly payments
The weekly payments to which a person is entitled under section 84 are,
if the person is totally incapacitated, the weekly payments equal to
whichever is the greater:
the normal weekly earnings of the person; or
the ordinary time rate of pay of the person for the work and
hours during which the person was engaged during the relevant
period.
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If the person is partially incapacitated, the person is entitled to weekly
payments for the period of incapacity equal to the difference between:
the amount of weekly payment to which they would have been
entitled if totally incapacitated; and
the amount that the person is earning, or would be able to earn in
suitable employment or business, during the period of incapacity.
If during the period of incapacity, the ordinary hourly rate of pay for the
work and hours during which the person was engaged immediately
before the commencement of that period, increases or decreases under
the person's contract or industrial agreement, the weekly payment is to
be increased or decreased by the same amount.
This clause reflects section 69 of the WRCA.
Clause 86 Matters to be taken into account in calculating
weekly payments
In fixing the amount of weekly payment, regard is to be had to any
relevant, allowance or benefit to the person. The clause specifies which
payments, allowance or benefits should or should not be taken into
account.
If a person has recovered from an ARD and is fit for employment, but
only for employment of a more limited kind than the employment in
which he or she was engaged during the relevant period; and
the person satisfies the Commissioner that the person has taken
all reasonable steps to obtain, but has failed to obtain
employment; and
the person's failure is wholly or mainly because of the ARD,
the Commissioner may treat the incapacity as total incapacity for the
period, subject to the conditions the Commissioner thinks fit.
If the Commissioner determines that the person's incapacity is to be
treated as total incapacity, weekly payments are payable.
In determining the amount of weekly payments, no regard is to be had
to any sum paid or payable under a contract of assurance or insurance,
or out of any relief, superannuation, sustentation fund or other fund
similar to a contract of assurance or insurance.
This clause is similar to section 69 of the WRCA.
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Clause 87 Calculation of normal weekly earnings
This clause defines "excess hours" as hours worked in addition to
minimum guaranteed contracted hours prescribed in an award, industrial
or enterprise agreement which applied during the relevant employment
period, or under the person's contract of employment during the
relevant employment period.
In calculating the normal weekly earnings, regard is to be had to the
principle that a person should receive no more than the person would
have received if the person had continued in their usual employment.
In calculating normal weekly earnings, overtime or excess are to be
disregarded unless:
it was a requirement of the person's contract; and
the person worked overtime or excess hours in accordance with
a roster; and
the pattern was substantially uniform; and
the person would have continued to work overtime or excess
hours,
if they had not been incapacitated or had continued to be employed
after making the application for compensation.
Bonus, gratuity or other similar payments are to be excluded.
If the person had contracts with two or more employers, the normal
weekly earnings are to be calculated as the sum of the average weekly
earnings in each employment, however if one of the contracts is a full
time contract, the normal weekly earnings are to be calculated by
reference only to the full time contract of service.
Any special expenses usually paid by the employer, are to be excluded,
as are payments or allowances to cover the costs of expenses incurred
for travel, meals and accommodation.
A statement in writing, verified by statutory declaration, setting out the
amount of the person's earnings during any period, is evidence of the
earnings of the person during the period.
This clause reflects section 70 of the WRCA.
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Division 4 Payment of weekly payments
Clause 88 When weekly payments to be made
Where it has been determined that a person is entitled to weekly
payments, they are to be paid in relation to a period that begins on the
day on which that determination has been made.
The Commissioner is to make weekly payments to a person on a weekly
or fortnightly basis, as determined by the Commissioner after
consultation with the person.
Clause 89 Entitlement to weekly payments where person
ceases to reside in this State
A person who is entitled to weekly payment who no longer resides in
Tasmania, is not entitled to weekly payments unless the person proves
the person's address and identity, and that he or she continues to be
incapacitated for work because of incapacity that is equal to or greater
than the degree of incapacity to which the calculation of weekly
payments relate.
The required information is to be provided in a manner and at intervals
as is prescribed in the Regulations, if any.
This clause reflects section 83 of the WRCA.
Clause 90 Paid leave during period of incapacity
The clause provides definitions for "long service leave entitlement
period" and "recreational leave entitlement period".
If during a period in which weekly payments would normally be paid,
there is a recreational leave entitlement period or long service leave
entitlement period, the person must be given by his or her employer a
similar period of leave on full pay in the case of annual recreational leave,
or a similar period of leave on full or part pay, in the case of long service
leave.
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This must be given:
at some time within 3 months from the date of his or return to
work, or at the termination of his or her right to weekly
payments, if he or she does not return to work; or
if the person desires, the person may by arrangement with his or
her employer, take annual recreational leave or long service leave
during the period of incapacity.
If the person takes annual recreational leave or long service leave under
this section, the person is not entitled to receive weekly payment during
that leave period.
An employer must not attempt to cause or require a person to take
annual recreational leave or long service leave during a period of
incapacity for which weekly payments are payable.
The clause is similar to section 84 of the WRCA.
Clause 91 When weekly payments may be terminated or
reduced
Unless the ACT determines otherwise, the Commissioner may only
terminate or reduce weekly payments if:
the payment relates to total incapacity and the person has
returned to work; or
the person is receiving weekly payments in respect of partial
incapacity and is receiving weekly earnings in excess of the amount
on which the amount of weekly payment was determined ; or
a medical practitioner has given a medical certificate certifying that
the person has wholly or substantially recovered from the ARD,
or the person's incapacity is no longer due, wholly or substantially
to the ARD, or another ARD.
The medical certificate is to specify the grounds on which the opinion is
given.
If the Commissioner intends to terminate or reduce a weekly payment,
he or she must serve on the person a notice containing certain
information, along with a copy of the medical certificate that is being
relied upon.
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A person who is served with a notice who wishes to dispute the
termination or reduction of weekly payments, may refer the matter to
the ACT, but must do so within 40 business days from the date on
which the person's weekly payment were terminated or reduced.
This clause is similar to section 86 of the WRCA.
Clause 92 Weekly payments cease when determination
made that person has imminently fatal
asbestos-related disease
An entitlement to weekly payments ceases, if the Commissioner
receives from a medical panel a determination that the person has an
imminently fatal ARD.
Clause 93 Weekly payments cease on pensionable age
The clause defines "pension age" as the date on which the person
attains the pension age under the Social Security Act 1991 of the
Commonwealth.
An entitlement to weekly payments ceases:
if the application is made before the date on which the person
attains the pension age, when the person attains pension age; or
if the application is made on or after the date on which the person
attains pension age, one year after the day on which the
application is made, or if another date is prescribed in regulations,
that other date.
If the terms and conditions of the person's employment allow them to
continue in employment beyond the pension age, the person may ask
the ACT whether or not weekly payments must cease on the date
required by this section. The ACT may determine that weekly payments
may be continued if the ACT is satisfied that:
the terms of the person's employment allow it; and
the person intended to continue in that employment beyond
pension age; and
the incapacity of the person will continue beyond pension age.
In these circumstances, the ACT must determine how long the weekly
payments are to continue.
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This clause is similar to section 87 of the WRCA.
Clause 94 Reference to Tribunal of refusal of
Commissioner to pay weekly payments
A person whom the Commissioner has determined is entitled to
compensation, who is aggrieved by a decision of the Commissioner not
to pay weekly payments, may refer the matter to the ACT.
The ACT may determine the matter by making a decision that the
Commissioner may make. This confers the same powers of the
Commissioner on the ACT.
This clause reflects section 88 of the WRCA.
Clause 95 Reference to Tribunal of matters relating to
amount of weekly payments
If a person who receives weekly payments, or the Commissioner, are of
the opinion that the amount of weekly payments is insufficient or
excessive, the person or Commissioner may refer the matter to the
ACT.
In this situation, the ACT is to determine the amount of weekly
payments that are reasonable and appropriate in the circumstances.
In determining the matter the ACT is to consider:
the principle that a person should not receive payments greater
than the payments the person would have received in their usual
employment; and
what the current weekly earnings are of another worker who is of
the same grade or classification as the person, and who is
employed by the same employer in similar work; and
the earnings the person might reasonably have earned during the
period of incapacity, if they had continued for the relevant period;
and
any other relevant matter.
If the weekly payments determined by the ACT involve a reduction in
the amount of weekly payments, the ACT is to determine the date from
which the reduction is to take effect. However, this date cannot be prior
to the date of the determination of the ACT.
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Clause 96 Weekly payment may not be assigned, &c.
Weekly payments cannot be assigned, charged or taken in execution, or
pass to any other person. No claim may be set off against weekly
payments.
This clause reflects section 90 of the WRCA.
PART 8 COMPENSATION PAYABLE TO FAMILY
MEMBERS
Clause 97 Meaning of "total family amount"
This clause defines "total family amount" in relation to a person who has
a compensable disease, as the amount the person would have been
entitled to under section 72 for an imminently fatal ARD, if an
application had been made after commencement day and the
Commissioner had determined that the person was entitled to
compensation under section 70(1)(a) and determined the person had an
imminently fatal ARD.
If compensation has previously been paid to a person who has a
compensable disease or his or her legal personal representatives, the
total family amount is to be reduced by the lump sum amount already
paid.
Clause 98 Compensation payable to family members
The compensation payable to members of the family of a person who
has a compensable disease, who are entitled to compensation under the
Act, is an amount equal to the total family amount, which is to be
distributed in accordance with Schedule 1.
Clause 99 Person with compensable disease may include
stepchildren in family for purposes of this Act
A person who has a compensable disease may notify the Commissioner
on the relevant form that a stepchild is to be treated as if he or she
were a natural child of the person. If this occurs, the stepchild is taken
to be a natural child of the person.
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The relevant form is an approved form that is completed and signed by
the person with the compensable disease and which is witnessed by a
person who is not the stepchild.
PART 9 PERSONS TO WHOM COMPENSATION TO
BE PAID
Clause 100 Payment of compensation to persons entitled
All money payable to a person as a lump sum payment under the Act is
to be paid to the person, or if the person is deceased, his or her legal
personal representative, unless the provisions relating to the public
trustee apply under section 101.
Clause 101 Payment of compensation to Public Trustee
If a person who is entitled to a lump sum payment under the Act is
under legal disability, the Commissioner must determine who the money
is to be paid to.
If the Commissioner has reasonable doubts about the nature of
dependency between the person under legal disability and the legal
guardian of the person, the Commissioner may determine that the
money is to be paid to the Public Trustee.
The Public Trustee must invest or deal with the money for the benefit of
the person entitled to the money, in the manner and subject to
conditions that are prescribed in regulations, if any. The income from
any money invested, is to be paid to or for the benefit of the person.
If any money payable to a member of the family cannot be paid to the
person because they cannot be found, the Commissioner may pay the
money to the Public Trustee.
The Public Trustee must invest or deal with the money for the benefit of
the family member entitled to the money, in the manner and subject to
conditions that are prescribed in regulations, if any. The income from
any money invested, is to be paid to or for the benefit of the person.
This clause reflects section 91 of the WRCA.
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PART 10 COMPENSATION AND DAMAGES UNDER
COMMON LAW OR OTHER LAWS
Division 1 Interpretation
Clause 102 Interpretation of Part 10
This clause defines damages as damages which are recoverable in
relation to any civil liability.
Further, in this Division, which relates to Common Law, a reference to a
lump sum received or to which a person is entitled under this Act for an
ARD, includes a lump sum amount that relates to another ARD. This
prevents double dipping, because under the scheme a person is entitled
to lump sum payments because of one or more ARDs.
Clause 103 Meaning of "relevant judgment or settlement"
This clause clarifies when a relevant judgment or settlement is given or
made in respect to an ARD. It includes if:
the person or member of the family of the person entered into an
agreement to accept an amount by way of settlement in relation
to the contraction of the disease; or
a court has delivered a judgment that an amount is payable to the
person or member of the family of the person in relation to the
contraction of the disease.
Where a judgment or settlement is given or made, or an action for
damages commenced in respect of a person in relation to one or more
ARDs, and the person has made an application or has received lump sum
compensation for one or more ARDs, the disease or diseases to which
the application for compensation relates or lump sum payments are
made, are deemed to be the same disease to which the relevant
judgment, settlement or action for damages relates.
Again, this provision prevents double dipping, because under the scheme
a person is entitled to lump sum payments because of one or more
ARDs.
However, the deeming provision does not apply if:
the person establishes that the relevant judgment, settlement or
action for damages specify the ARD or ARDs to which the
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judgment, settlement or action relates, and none of those diseases
are the same ARD to which the application for compensation or
compensation received relates; or
the person establishes that the disease or diseases to which the
judgment, settlement or action relates is not the same ARD to
which the application for compensation or compensation received
relates.
This Division applies to judgments, settlements and actions that arise in
Australia or in any other country or territory.
Again this prevents double dipping by a person if they have received
Common Law damages in another jurisdiction, whether within or
outside of Australia.
Clause 104 When action for damages is to be taken to
begin for purposes of this Part
A person is deemed to have commenced an action for damages when
the person gives the person from whom the damages are being claimed,
notice in writing of this intention, or the person commences
proceedings in Australia, another country or territory to recover
damages in relation to an ARD, whichever occurs first.
Division 2 Requirements in relation to common law actions
Clause 105 Person to notify Commissioner on
commencing certain actions or receiving
certain damages
A person who has received lump sum compensation under the Act must
within 20 business days after commencing an action for damages in
relation to an ARD, notify the Commissioner in writing of the
commencement of that action, where the action is commenced after
commencement day. This requirement also applies where a relevant
judgement or settlement is given or made in respect of the person, or
the person receives damages in relation to an ARD after
commencement day.
Similarly, a person who has made an application for compensation under
the Act must, within 20 business days after receiving in relation to an
ARD a lump sum payment for compensation under legislation in another
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place, or under the WRCA or the Workers Compensation Act 1927, notify
the Commissioner that they have received that compensation.
Clause 106 Certain actions not to commence until
application for compensation determined
An action for damages for an ARD at Common Law by a person who
has a compensable disease or a member of the family of such a person,
must not be commenced after the commencement day, unless the
person has made an application for compensation in relation to the ARD
and the Commissioner has determined the application under section 70
of the Act.
If this requirement is contravened, any relevant judgment or settlement
made is void.
This clause is designed to funnel all ARD compensation claims through
the statutory compensation scheme first.
If:
a person makes an application for compensation; and
before that application was made limitation of actions legislation
did not prevent the person from taking action for damages at
Common Law; and
the action for damages is then commenced by the person or
member of the family within 10 business days after the
determination is made under section 70,
the legislation relating to the limitation of actions will not prevent the
person or member of the family from taking the action at Common Law.
Clause 107 No entitlement to compensation if certain
settlements, &c., made before
commencement day
If before commencement day, a relevant judgment or settlement is given
or made in relation to a person or member of the family of that person,
the person and members of the family are not entitled to lump sum
compensation or expenses under Part 11 of the Act.
This does not apply if it is established that the person or members of the
family who are entitled to the amount of the relevant settlement or
judgment, are unlikely to receive all of that amount.
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This clause is not intended to preclude a person or member of the
family from making a claim for compensation under the Act, if the ARD
to which the claim for compensation relates is different to the ARD for
which the settlement or judgment was given or made.
Division 3 Effect of common law judgments
Clause 108 References to receipt of moneys
In this Division, any reference made to the amount of money a person
has received at common law, is the amount of common law damages,
minus any amount awarded for legal costs, minus an individual's out of
pocket legal costs.
Clause 109 Where money received under settlements,
&c., after application for compensation made
If a person receives one or more lump sums of compensation under the
Act, and then receives at Common Law an amount that is greater than
or equal to the lump sum amounts, the person is to pay back to the
Commissioner an amount equal to the lump sum amounts received
under the Act.
If a person receives one or more lump sums of compensation under the
Act, and then receives at Common Law an amount that is less than the
total of the lump sum amounts received by the person under the Act,
the person is to pay to the Commissioner the amount of money they
received at Common Law.
If a person:
receives one or more lump sum payments under the Act; and
then receives an amount at Common Law; and
then applies for additional lump sum compensation because of
increased impairment,
the person is only entitled to receive additional lump sum compensation
if the amount of Common Law damages is less than the lump sum
amounts the person is entitled to, plus the lump sum amounts already
received.
For example, a person has received lump sum compensation for 15%
whole person impairment of approximately $83,000. They then receive
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Common Law damages of $120,000. They have to pay the
Commissioner back the $83,000. The person is then entitled to the
remaining lump sums of approximately $166,000 less the windfall
amount.
The windfall amount is $120,000 minus $83,000, which equals $37,000.
Therefore the person will be entitled to $166,000 minus $37,000, which
equals $129,000.
The person has received $120,000 in Common Law damages. They are
now entitled to $129,000 in lump sum compensation. Bringing the total
amount they would receive to approximately $250,000.
This clause is designed to ensure that the amount that the person will
receive is topped up, if what they receive at Common Law is less than
the total amount that they would receive under the scheme.
An amount that a person is required to pay to the Commissioner is a
debt due and payable and the Commissioner may sue and recover the
amount from the person.
Clause 110 Where money received under settlement, &c.,
before application made by person with
imminently fatal compensable disease.
If a person receives a Common Law judgment prior to commencement
of the Act, and then makes an application for compensation, and a
determination is made that they are entitled to compensation and have
an imminently fatal asbestos related disease, the person would only be
entitled to lump sum compensation if the amount received at Common
Law is less than the amount of lump sums they would receive.
The amount of lumps sums would be approximately $250,000 plus the
age based payment as prescribed in the regulations, minus the amount
received at Common Law.
This section only applies to those people who are waiting to receive
payment from a Common Law judgement made prior to
commencement.
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Clause 111 Where money received under settlement, &c.,
before application made by person with non-
imminently fatal compensable disease
If a person receives a Common Law judgment prior to commencement
of the Act, and then makes an application for compensation, and a
determination is made that they are entitled to compensation and have a
non- imminently fatal asbestos related disease, the person would only be
entitled to lump sum compensation if the amount received at Common
Law is less than all of the non-imminently fatal lump sum payments they
would receive (approximately $250,000).
The amount the person would receive is the amount of lump sums they
would be entitled to, based on their whole person impairment, less what
was received at Common Law.
If the person then seeks a variation due to increased impairment, the
person is only entitled to receive additional lump sum compensation if
the amount of Common Law damages is less than the lump sum
amounts the person is entitled to, plus the lump sum amounts already
received.
For example, a person has received lump sum compensation, for 15%
whole person impairment, of approximately $83,000, and has also
received Common Law damages of $120,000. They have to pay the
Commissioner back the $83,000. The person is then entitled to the
remaining lump sums of approximately $166,000 less the windfall
amount.
The windfall amount is $120,000 minus $83,000, which equals $37,000.
Therefore the person will be entitled to $166,000 minus $37,000, which
equals $129,000.
The person has received $120,000 in Common Law damages. They are
now entitled to $129,000 in lump sum compensation, bringing the total
amount they would receive to approximate maximum in lump sums.
This clause is designed to ensure that the amount that the person will
receive is topped up, if what they receive at Common Law is less than
the total amount that they would receive under the scheme.
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This section only applies to those people who are waiting to receive
payment from a Common Law judgement made prior to
commencement.
112 Where money received under settlement, &c.,
by member of family
If a member of the family receives a Common Law judgment prior to
commencement, and then makes an application for compensation, and a
determination is made that they are entitled to compensation, the
member of the family would only be entitled to lump sum compensation
if the amount received at Common Law would be less than the lump
sum compensation entitlement under the Act.
The lump sum compensation entitlement to the member of the family
would be the proportion of the total family amount that member of the
family is entitled to, less the amount received at Common Law.
This section only applies to those people who are waiting to receive
payment from a Common Law judgement made prior to
commencement.
113 Debts due and payable
An amount that a person is required to pay to the Commissioner is a
debt due and payable and the Commissioner may sue and recover the
amount from the person.
Division 4 Statutory Compensation under other Laws
Clause 114 Person not to receive statutory compensation
under more than one Act
Compensation is not payable to a person with an ARD, if compensation
has been received in relation to that ARD under legislation in another
place, or under the WRCA or under the Workers Compensation Act
1927.
If a person receives compensation under this Act in relation to an ARD
and then receives compensation under legislation in another place for
the same ARD, the amount recoverable from the person is the amount
of lump sum compensation paid under this Act in relation to the ARD,
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or the amount of compensation received in relation to the ARD under
the legislation of the other place, whichever is the lesser of the two.
That recoverable amount is a debt due and payable to the
Commissioner, and the Commissioner may sue and recover the amount
from the person.
Expenses under Part 11 are not payable under this Act for an ARD to
the extent that those expenses have been paid under legislation of
another place, or under the WRCA or under the Workers Compensation
Act 1927.
Clause 115 Choice of law
This clause introduces the choice of laws model adopted by all
Australian workers compensation jurisdictions. This same model is also
reflected in Division 3 of Part 10 of the WRCA.
The aim of the choice of laws model is to ensure common law damages
claims and statutory compensation claims arising out of a work related
injury are both able to be dealt with under the law of the same
jurisdiction.
The clause provides that "a State's legislation about damages for a work
related injury" means this State, this section and any other relevant
provision of the Act, and provides for regulations to declare any
provision of a law of another State, in relation to damages for a work
related injury.
The clause also provides that an `injury' includes anything that is within
the scope of the corresponding term in the statutory workers
compensation scheme of another State and that consists of an ARD.
As a State or Territory substantive law is to be used as the law that
governs whether or not a claim for common law damages can be made,
and what the determination of the claim can be, this section defines
"substantive law" in relation to Tasmania and what is referred to in
other State's and what it includes. This ensures wide coverage and
application of the term.
Subsection (2) stipulates that if a worker is entitled to compensation
under a State or Territory workers compensation scheme, the
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substantive law of the State or Territory governs whether or not a claim
for damages can be made and what the determination of the claim is.
This ensures workers can only pursue common law claims in the "State
of connection", which provides certainty and consistency.
Subsection (3) states that the section does not apply if workers
compensation is payable under a statutory scheme in more than one
State. This means if another jurisdiction is also able to pay
compensation, then this section does not apply as it would be
inappropriate for workers to be eligible for two payments.
To help ensure courts in all jurisdictions make consistent decisions with
regard to the law of the jurisdiction which is to apply, subsection (4)
explains that the term "employer" includes anything that is within the
scope of a corresponding term in the statutory worker's compensation
scheme of other workers' compensations jurisdictions. The concepts of
employment and whether a person is a worker's employer are similarly
explained.
Subsection (4) also makes it clear that where there is reference to a
"worker's employer", this includes a person who is vicariously liable
(liable for the acts of another) for the acts of the employer and a person
for whose acts the employer is vicariously liable.
Subsection (5) explains that a claim for damages also includes a claim for
damages in respect of death resulting from an injury.
Subsection (6) provides that it is not relevant to the application of this
section in relation to common law, if the substantive law of "another
State", being "a State other than the State with which the worker's
employment is connected", would not give rise to a cause of action if the
injury had occurred in that State or if the circumstances on which the
claim is based do not give rise to a cause of action. This ensures workers
can only pursue common law under the legislation of the established
"State of connection", which provides certainty as to which jurisdiction
common law can be claimed and eliminates the potential for forum
shopping.
Subsection (7) explains that this section relates to a worker's claim for
common law damages against the employer for an injury caused by the
negligence or other tort of the worker's employer, or a breach of
contract by the worker's employer.
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Subsection (8) specifies that this section also applies to a common law
claim or the recovery of contribution brought against a person other
than a worker's employer, if the worker's employment is connected
with Tasmania and the negligence or other tort or the breach of
contract on which the claim is based occurred in Tasmania.
Subsection (9) specifies that even if damages resulting from the
negligence or other tort are claimed in another action for breach of
contract or another action, subsection (7)(a) relating to negligence and
tort, and subsection (8) still apply.
Subsection (10) stipulates that where the substantive law of a jurisdiction
applies, compensation under a statutory scheme is still payable even if
the provisions of the scheme excludes a worker's right to compensation
due to any conduct or failure of the worker, or when compensation
would have been payable if the claim for compensation had been duly
made but an election to claim that compensation by lump sum instead of
common law had been duly made. This means despite any technicalities,
a worker's entitlement can still be preserved.
Subsection (11) stipulates that a reference in this section to
compensation payable for an injury does not include compensation that
may be payable based on a provisional acceptance of liability. This is to
ensure the employer and/or insurer is not unfairly bound by an interim
decision which may have been made in good faith to assist the claimant
and to expedite a final decision.
PART 11 MEDICAL, FUNERAL, TRAVEL, &C.,
EXPENSES
Clause 116 Interpretation of Part 11
Provides for a range of medical and related expenses to be paid for a
person with a compensable disease. This clause is modelled on Part IV,
Division 2 of the WRCA. This clause also provides definitions of a
number of terms related to medical expenses.
Clause 117 Funeral expenses payable
This clause provides that funeral expenses, as prescribed in the
Regulations, are payable.
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Clause 118 Medical, &c., expenses payable for imminently
fatal disease
Provides that reasonable expenses necessarily incurred by a
compensable person with an imminently fatal disease after the
Commissioner has made a determination, are payable up to a total
amount of 125 expenses units, at which point the expenses will be
reviewed by the Commissioner.
Beyond this amount the Commissioner has the discretion to either
continue to pay or refuse to pay the expenses.
A medical expense unit is calculated by multiplying the basic salary by the
number of expense units.
Clause 119 Medical, &c., expenses payable if non-
imminently fatal disease
Provides that reasonable expenses necessarily incurred by a
compensable person with a non-imminently fatal disease are payable by
the Commissioner. This is in effect an uncapped amount.
Clause 120 Travelling expenses
Provides that the Commissioner will pay reasonable travel expenses for
seeking medical treatment. Where medically necessary this will include
costs for an accompanying person.
Clause 121 How claim for payment of expenses may be
made
Provides that a compensable person, a member of the family, or a legal
representative may lodge a claim for payment of expenses on the
approved form and within 10 business days of receipt of the account.
Clause 122 Determination of claims for payment of
expenses
Provides that the Commissioner must, within 10 business days, pay the
amount claimed for expenses, or serve the person who lodged the claim
with notice in writing disputing the claim.
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Clause 123 Persons to whom expenses under this Part are
to be paid
Sets out relevant persons to whom expenses are to be paid.
PART 12 DISPUTE RESOLUTION
This Part is modelled on Part V of the WRCA.
Division 1 Referral of matters to Tribunal
This Division sets out the circumstances in which a person may refer a
decision of the Commissioner to the ACT and the process for making a
referral to the ACT.
Division 2 Asbestos Compensation Tribunal
This Division establishes the ACT and sets out the ACT's functions and
related matters.
Division 3 Hearings
This Division sets out the procedures for hearings before the ACT, and
includes a provision that costs will not be awarded against a party by the
ACT.
PART 13 ASBESTOS COMPENSATION
COMMISSIONER
Clause 153 Asbestos Compensation Commissioner
Provides for the appointment of the Asbestos Compensation
Commissioner.
Clause 154 Functions of Commissioner
This clause sets out the functions of the Commissioner.
Clause 155 Powers of Commissioner
This clause establishes the powers of the Commissioner.
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Clause 156 Minister may give Commissioner directions
Provides that the Minister may give directions to the Commissioner with
respect to the performance of the Commissioner's functions and the
exercise of the Commissioner's powers.
Clause 157 Delegation by Commissioner
Provides that the Commissioner may delegate the performance or
exercise of functions and powers, other than the power of delegation.
Clause 158 Secretary to, and staff of, Commissioner
Provides that the Commissioner may appoint a Secretary and other staff
from the State Service, with the approval of the Head of a State Service
Agency.
Clause 159 Annual report
Provides that the Commissioner must submit an annual report to the
Minister.
Clause 160 Financial statements
Provides that the Commissioner must keep records of financial affairs
and provide them to the Auditor-General.
Clause 161 Commissioner to keep applicants informed
Provides that the Commissioner must take steps to ensure that an
applicant is informed of the progress of their application
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PART 14 COMPENSATION FUND
Clause 162 Asbestos Compensation Fund
Provides that the Commissioner must establish, maintain and administer
the Asbestos Compensation Fund. It sets out the monies that are to be
paid into and out of the fund.
Clause 163 Nominal Insurer to pay into Fund amounts
from HIH funds
Provides that the Nominal Insurer established under the WRCA is to
pay into the Asbestos Compensation Fund the amounts in credit in the
Special Account less $100,000.
Clause 164 Minister may give directions in relation to
Fund
Provides that the Minister may direct the Commissioner as to how to
utilise any excess amount in the Asbestos Compensation Fund.
PART 15 LEVY
Clause 165 Interpretation of Part 15
This clause defines the "levy amount" as the amount that a policyholder
is required to pay under section 167(1), or in relation to a self-insurer,
the amount that a self-insurer is required to pay under section 167(2).
A "notional premium" has the same meaning it has under section 144(1)
of the WRCA.
Each State Service Agency or other body to which the Tasmanian Risk
Management Fund applies, as well as any statutory authority within the
meaning of the Government Business Enterprises Act 1995 which is a self
insurer, are deemed to be a policyholder.
Clause 166 Determination of levy
The Minister, by notice not later than 31 March in each year, may
determine the levy for the following financial year. This is to be
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expressed as a percentage amount. At commencement, the Minister is
taken to have determined that the levy is 4%.
In determining the levy, the Minister is to take into account:
the expected degree of payments and other expenses; and
the amount of money expected to be received; and
the period during which payment of the levy is likely to be
required; and
any deficit or surplus projected to occur at the end of the financial
year to which the levy relates; and
any other matters prescribed.
This clause reflects section 128(5) and 128A(4) of the WRCA.
Clause 167 Policyholders and self-insurers liable to pay
levy
If the Minister determines a levy under section 166 for a financial year,
each policyholder is to pay to the Commissioner the levy on the
premium payable by the policyholder for policies of insurance under the
WRCA for the financial year.
In respect to self-insurers, the levy payable is based on the notional
premium payable by the self-insurer under the WRCA for the financial
year.
This clause reflects section 128(8) of the WRCA.
Clause 168 Levy amounts to be paid by policyholder to
insurer
If the Minister determines a levy in relation to a financial year, each
policyholder is to pay the required amount to the licensed insurer with
whom the policy is held on the day on which the Minister's
determination takes effect, or during the period for which the
determination has effect. The policyholder is to pay the amount not later
than the day on which the premium for the policy is required to be paid.
A licensed insurer, within 20 business days after the end of each month,
is to pay the Commissioner all amounts received from policyholders
during that month, and is to forward a statement to the Commissioner
setting out the amounts received from policyholders, the amounts due
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but not paid and any other particulars required by the Commissioner.
This information is to be verified by statutory declaration made by an
officer of the licensed insurer.
If a policyholder is required to pay an additional premium as a result of
an adjustment to a policy of insurance, the policyholder must pay to the
licensed insurer the percentage specified in the levy for the financial year
in which the policy commenced, of the additional premium payable no
later than the day on which the additional premium is required to be
paid.
Clause 169 Levy amounts to be paid by self-insurer to
Commissioner
If the Minister determines a levy under section 166, each self-insurer is
to pay the Commissioner the levy amount, in the case of a self-insurer
who is granted a self-insurer permit under the WRCA before the day on
which the determination took effect, within 20 business days of the day
on which the determination took effect. In the case of a self-insurer who
is granted a self-insurer permit after the day on which a determination
took effect, within 20 business days of the day on which the permit is
granted.
This requirement to pay within a certain timeframe however, does not
apply in the first financial year in which the Act commences. Instead the
levy amount is payable 90 days after the day on which the levy would
otherwise be payable.
Clause 170 Convictions for offences relating to levy
If a policyholder, licensed insurer or self-insurer is convicted of an
offence under this part, in addition to imposing a penalty for the offence,
the court is to order the person to pay the Commissioner any unpaid
amount.
An order for the payment of any unpaid amount may be enforced in the
same manner as a summary conviction or order under the Justices Act
1959.
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Clause 171 Refunds of levy amount
If a policyholder is entitled to receive from a licensed insurer a refund of
an amount paid by way of a premium, the licensed insurer, in addition to
any amount paid by way of refund, is to refund the policyholder an
amount that represents a proportionate part of that relevant amount.
If a self-insurer would have been entitled to a refund of an amount paid
by way of premium for a policy of insurance, the self-insurer is entitled
to a refund of the amount that represents a proportionate part of the
relevant amount paid, and the Commissioner is to pay the amount to
the self-insurer.
If a licensed insurer refunds the relevant amount to a policyholder, the
Commissioner on application by the licensed insurer, is to pay the
insurer the amount paid by the insurer to the policyholder.
PART 16 MISCELLANEOUS
Division 1 Recovery of amounts paid under Act
Clause 172 Interpretation of this Division
The clause provides definitions for "asbestos product" and
"secondary asbestos product".
The relevant asbestos product in respect to a person with a
compensable disease, is the particular asbestos product to which the
person was exposed in the course of the person's employment as a
worker during a period in which the employment is connected with this
State.
A person is a culpable manufacturer in relation to a person who has a
compensable disease, if that first mentioned person manufactured the
relevant asbestos product and knew or ought reasonably be expected to
have known at the time of manufacturing, that asbestos was dangerous
to human health.
A person is a culpable manufacturer in relation to a person who has a
compensable disease, if that first mentioned person manufactured a
secondary asbestos product that contained the relevant asbestos
product, and knew or ought reasonably be expected to have known at
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the time of manufacturing the secondary asbestos product that the
product contained asbestos, and knew or ought reasonably be expected
to have known at the time of manufacturing the secondary asbestos
product, that asbestos was dangerous to human health.
A culpable supplier in relation to a person who has a compensable
disease, is a person who:
supplied a relevant asbestos product or secondary asbestos
product containing the relevant asbestos product to another
person; and
who knew at the time of supply to the other person that the
product contained asbestos or ought reasonably be expected to
have know it contained asbestos; and
who knew or ought reasonably be expected to have know at the
time of supply that asbestos was dangerous to human health.
For the purpose of the Division, relevant amounts in relation to a
person with a compensable disease are:
amounts of compensation paid under the Act to the person or
members of the family of the person; and
amounts paid as expenses under Part 11; and
any legal and administrative costs incurred by the Commissioner
in determining an application under the Act.
Clause 173 Commissioner may seek to recover certain
amounts from culpable manufacturers and
suppliers
This clause provides that the Commissioner may recover from a
culpable manufacturer or supplier, the relevant amounts in relation to a
compensable person.
Where another person is required to pay the Commissioner the
relevant amount, the Commissioner may not recover this amount.
Before attempting to seek recovery the Commissioner must consider:
whether the action is likely to be successful; and
whether the amount that may be recovered justifies the action;
and
whether it is in the public interest to take action.
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An amount is taken to be a relevant amount that has been paid, if the
Commissioner lodges with the court a copy of a record of the payment
of the amount paid to a person with a compensable disease. The
payment of the relevant amount may not be challenged. The
Commissioner is not required to discover a document, except in
accordance with a court order.
A person from whom recovery is sought, may apply to have another
person joined as a party, and the court may determine that a party who
is joined as a culpable manufacturer or supplier are jointly and severally
liable to pay the relevant amount in the proportions the court considers
is representative of the liability of the respective parties.
A judgement made by a court that an amount is payable is enforceable as
an order of the Supreme Court.
Division 2 Other matters
Clause 174 Enactments relating to limitation of actions do
not apply
Provides that no enactment relating to the limitation of actions applies,
or is to be taken to have applied, to any proceedings by a person under
this Act.
Clause 175 Liability of persons performing functions under
this Act
Provides that no liability attaches to the Commissioner or his or her
delegate, the Secretary to the Commissioner and members of staff, the
Chief Commissioner of the ACT, a Commissioner of the ACT, a part-
time Commissioner of the ACT, the Registrar, a Deputy Registrar of the
ACT, or a medical professional, for acts under this Act.
Clause 176 Persons not to overcharge for services the
Commissioner is required to pay as expenses
Provides that anyone providing services referred to in Part 10, knowing
that the Commissioner may be required to pay, must not charge a fee in
excess of the amount set out in the WRCA. There is a penalty up to
100 penalty units.
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Clause 177 Recovery of compensation, or expenses, that
have been over-paid
Provides that the Commissioner may recover or deduct any amounts
over-paid.
Clause 178 False or misleading statements
Provides that it is an offence (up to 100 penalty units) for applicants,
medical practitioners or accredited impairment assessors to make false
or misleading statements.
Clause 179 Commissioner may obtain information
Provides that it is an offence (up to 20 penalty units) for not providing
certain information to the Commissioner where the Commissioner has
requested the information in writing.
Clause 180 Medical certificates to be in approved form
Provides that medical certificates must be in the approved form.
Clause 181 Reliance on reports of medical panel or
medical practitioner
Provides that reports by medical panels, medical practitioners, or
medical certificates given by medical practitioners (including impairment
assessors) may not be used:
by the Commissioner in relation to an application under the Act
unless a copy is provided to the applicant; or
by a party in proceedings before the ACT or a Court unless a
copy is provided to each party.
Clause 182 Receipt by minor is valid discharge
Provides that compensation and other payments under this Act may be
paid to people under the age of 18.
Clause 183 Maintenance of secrecy
Provides for a penalty not exceeding 5 penalty units for the disclosure of
information obtained through the exercise of powers and performance
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of functions under this Act unless the disclosure is authorised or for
purposes including:
approved study or research;
collection and analysis of statistical information;
law enforcement.
Clause 184 Time limits for actions taken by
Commissioner etc.
Provides a definition of "relevant person" being:
the Commissioner or a member of his or her staff;
the ACT and associated positions;
a medical professional; or
other prescribed person.
Provides that time limits in the Act do not apply to a relevant person for
the first 12 months after commencement of the Act.
This clause recognises that from commencement, there may be a
backlog of claims waiting to be dealt with.
Clause 185 Role of WorkCover Board
Defines "Board" to be the WorkCover Tasmania Board established
under the WRCA.
Provides that the Board is to:
monitor and report to the Minister on the operation and
effectiveness of the Act, and performance of related systems;
collect and publish statistics on any relevant matter;
advise the Minister on any matter that the Minister refers to the
Board.
Clause 186 Regulations
Provides that the Governor may make regulations for a range of
purposes including:
practices and procedures of the ACT, Commissioner or medical
panel;
powers that may be exercised and functions required by the
Registrar.
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Clause 187 Administration of Act
Administration of this Act is assigned to the Minister for Workplace
Relations and the department responsible to that Minister until other
provision is made under the Administrative Arrangements Act 1990.
Clause 188 Commissioner to be deemed a "worker"
The Commissioner is deemed to be a worker under the WRCA and this
Act.
SCHEDULE 1 COMPENSATION PAYABLE TO FAMILY
MEMBERS
PART 1 INTERPRETATION
Clause 1 Interpretation
Provides that:
"deceased person" means a person who has a compensable
disease and who has died.
a person ceases to be a surviving child of a deceased person if the
person attains the age of 22 years before the death of the
deceased person.
a person survives a deceased person only if the deceased person is
still alive at the time a determination is made of the amount
payable under this Act to members of the family.
PART 2 WHERE PERSON SURVIVED BY CHILD BUT
THERE IS NO SURVIVING SPOUSE
Clause 1 Where person only survived by one child
Where the person is survived by only one child (and no spouse) the
child is entitled to all of the lump sum.
Clause 2 Where person survived only by more than one
child
Where the person is survived by more than one child (and no spouse)
the lump sum is divided equally between the children.
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PART 3 WHERE PERSON SURVIVED BY ONLY ONE
SPOUSE
Clause 1 If person survived by only one spouse and has
no children
Where the person is only survived by one spouse (and no children) the
spouse is entitled to all of the lump sum.
Clause 2 If person survived by only one spouse and only
by children of the person and the spouse
If the person is survived by only one spouse and only by children of the
person and the spouse, the lump sum is to be paid to the surviving
spouse.
Clause 3 If person survived by only one spouse and at
least one of the person's children is not also a
child of the spouse
If the person is survived by only one spouse and at least one of the
person's children is not also a child of the spouse, the lump sum is to be
paid in two equal parts one to the surviving spouse, and the other
divided equally between all surviving children of the person.
PART 4 WHERE PERSON SURVIVED BY MORE
THAN ONE SPOUSE
Clause 1 If person survived by more than one spouse
and no children
If the person is survived by more than one spouse and no children the
lump sum is to be divided equally between the spouses.
Clause 2 If person survived by more than one spouse
and children
If the person is survived by more than one spouse and children, the lump
sum is to be paid in two equal parts one divided equally between the
surviving spouses, and the other divided equally between all surviving
children of the person.
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SCHEDULE 2 ASBESTOS COMPENSATION
COMMISSIONE R
Clause 1 Terms of Office
Provides that the Commissioner may be appointed for a three year term
and may be re-appointed.
Clause 2 Provisions requiring devotion to other duties
This provision allows that holding an office which requires devotion of all
of his or her time does not disqualify the person from also holding the
office of Commissioner.
Clause 3 Remuneration
Provides that the Minister may determine the remuneration of the
Commissioner. Where the Commissioner is also employed under the
State Service Act 2000 they are not entitled to further remuneration.
Clause 4 State Service Act 2000 not to apply
Provides that the State Service Act 2000 does not apply to the
appointment of the Commissioner.
Clause 5 Deputies
Provides that the Minister may appoint a person to act in the office of
the Commissioner.
Clause 6 Vacation of office
Sets out the situations in which the Commissioner is taken to have
vacated his or her office.
Clause 7 Validity of proceedings, &c.
Sets out the validity of proceedings and acts of the Commissioner.
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Clause 8 Presumptions
Provides that in any proceedings by or against the Commissioner, unless
evidence is given to the contrary, no proof is required of the
appointment of the Commissioner.
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