BILLS DIGEST NO. 13, 2015–16              20 August 2015

Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015

Paula Pyburne
Law and Bills Digest Section 

Date introduced: 25 March 2015

House:  House of Representatives

Portfolio: Employment

Commencement: various dates set out in the table in section 2 of the Bill.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

The Bills Digest at a glance

The Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015 makes profound changes to the Comcare Scheme.

The Bill is one of three, the others being the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 and the Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Bill 2015. Debate was adjourned in the Senate in November 2014 for the first Bill and in May 2015 for the second.

The amendments to the Comcare Scheme are said to be designed to make the Comcare Scheme ‘more sustainable over time’.

Limits to injuries that are compensable

In order to achieve that, the Bill reduces the types of injuries that are compensable by:

•       distinguishing between work and non-work related injuries

•       introducing new eligibility criteria for compensation for designated injuries (such as heart attacks, strokes and spinal disc ruptures) and aggravations of those injuries so that compensation is not payable unless the employee can prove that either the underlying condition or the culmination of that condition is significantly contributed to by his, or her, employment and

•       widening the scope of the ‘reasonable administrative action‘ exclusion to encompass injuries suffered as a result of reasonable management action generally (including organisational or corporate restructures and operational directions) as well as the employee‘s anticipation or expectation of such action being taken.

Limiting costs of the scheme

The Bill also takes the following steps to reduce costs to the scheme:

•       emphasising return to work outcomes rather than the medical nature of rehabilitation services

•       limiting legal and medical costs under the scheme

•       limiting the period for which household services and attendant services are payable to an employee who has suffered a non-catastrophic injury and

•       updating the method for calculating weekly compensation and introducing a system of ‘step-downs’ to reduce the amount payable at set times after the injury was sustained.

Creating a sanctions regime

In addition, the Bill introduces the concept of ‘obligations of mutuality’ which apply to injured employees. A breach of such an obligation gives rise to a three level sanctions regime. Levels 1 and 2 sanctions operate to suspend the payment of weekly compensation to an injured employee. Where a level 3 sanction is imposed on an injured employee it acts to cancel the employee’s rights to payments of compensation, medical treatment and other rehabilitation services.

All URLs accessed 20 August 2015.

History of the Bill

The Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015 (the Bill) is the third Bill to be introduced by the Government consistent with its policy to transform the existing scheme by which workers’ compensation is paid.

The first Bill, the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 (the 2014 Bill), was introduced into the House of Representatives on 19 March 2014 and is currently before the Senate.[1] The 2014 Bill contains amendments to the Safety, Rehabilitation and Compensation Act 1988[2] (SRC Act) to:

•       expand the class of corporations which are able to apply for a self-insurer licence. The amendments enable those corporations which are currently required to meet workers’ compensation obligations under two or more workers’ compensation laws of a state or territory to apply to the Safety Rehabilitation and Compensation Commission (the Commission) to join the Comcare scheme

•       enable the Commission to grant self-insurer group licences to related corporations and makes consequential changes to extend the coverage provisions of the Work Health and Safety Act 2011[3] to those corporations that obtain a licence to self-insure under the SRC Act

•       exclude access to workers’ compensation where a person engages in serious and wilful misconduct, even if the injury results in death or serious and permanent impairment and

•       exclude access to workers’ compensation where injuries occur during recess breaks away from an employer’s premises.[4]

The amendments in the 2014 Bill are opposed by the Victorian and Queensland Governments on the grounds that they will seriously undermine the relevant state workers’ compensation schemes.[5]

The second Bill is the Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Bill 2015 (the Exit Arrangements Bill).[6] That Bill is currently before the Senate, debate having been suspended on 14 May 2015.

The Exit Arrangements Bill amends the SRC Act to:

•       provide for financial and other arrangements for a Commonwealth authority to exit the Comcare scheme

•       clarify that premiums should be calculated so that current and prospective liabilities are fully funded and

•       change the appointment process and membership of the Commission.[7]

The provisions of the Bill should be read in the context of the earlier Bills in order to appreciate the breadth of the proposed changes to the Comcare scheme. Together they allow for more corporations to become self-insurers in the Comcare scheme whilst limiting the injuries which are compensable and the amounts of compensation payable to employees.

Purpose of the Bill

The purpose of the Bill is to implement some of the recommendations of the Review of the Safety, Rehabilitation and Compensation Act 1988 by Peter Hanks QC (Hanks Report)[8] and Dr Allan Hawke AC which had been commissioned by the former Labor Government in 2012 (Hawke Report).[9]

In addition the Bill makes other changes to the SRC Act that the Government claims will improve the viability of the Comcare scheme, and align parts of the scheme with state schemes. For instance, the Bill contains amendments to enable Comcare to recover overpayments of compensation that have been made to an employer by Comcare.

Structure of the Bill

The Bill contains 17 schedules:

•       Schedule 1: makes a number of changes to the eligibility requirements for compensation which will have the effect of limiting access to compensation for some employees

•       Schedule 2: amends the rehabilitation and return to work requirements in the SRC Act to emphasise the vocational—that is, return to work—aspects of rehabilitation services, rather than the medical ones

•       Schedule 3: amends the SRC Act to improve the financial viability of the Comcare scheme as recommended by the Hanks Report. For instance, amendments in this Schedule will require third parties to indemnify payers of compensation under the SRC Act if there is also a liability to pay damages

•       Schedule 4: contains amendments to provide for provisional medical expense payments in respect of an alleged injury before a claim for compensation is determined

•       Schedule 5: imposes more rigorous requirements in relation to determining the amount of compensation payable for medical expenses which are incurred by an injured employee

•       Schedule 6: amends the SRC Act to create two categories of injury—catastrophic and non-catastrophic. Those employees who have suffered a non-catastrophic injury who are entitled to payment of compensation for household services and attendant care services will receive them for a maximum period of three years

•       Schedule 7: amends the SRC Act to suspend payment of compensation when an injured employee is absent from Australia for private purposes for a period of more than six weeks

•       Schedule 8: will operate so that an employee is not entitled to take or accrue any leave, or absence, as provided for by the National Employment Standards while on compensation leave, receiving compensation

•       Schedule 9: sets out the new method of calculating weekly workers’ compensation and introduces ‘step down’ provisions to taper the amount of weekly incapacity payments to which an injured employee is entitled. The effect is to reduce the amount of weekly compensation payable after the first 13 weeks and at specified points thereafter

•       Schedule 10: amends the SRC Act to increase the amount at which Comcare must redeem its liability to future payments by way of a lump sum. As the threshold amount is higher than under the SRC Act at present it will set the trigger for a mandatory redemption earlier than it is at present

•       Schedule 11: will operate to limit the overall amount of costs that may be awarded or reimbursed to a claimant in certain circumstances

•       Schedule 12: contains provisions to combine the compensation payable for permanent impairment and compensation payable for non-economic loss—which are currently separate payments—into a single permanent impairment payment—and to increase the existing maximum amount payable for permanent impairment

•       Schedule 13: will clarify that a single employer licence for an eligible corporation or group employer licence must authorise acceptance of liability and management of claims and that a single employer licence for a Commonwealth authority must authorise acceptance of liability or management of claims—or both

•       Schedule 14: amends the SRC Act so that compensation responsibilities for gradual onset injuries and associated injuries will generally rest with the most recent employer

•       Schedule 15: imposes obligations upon injured employees (called obligations of mutuality) to take a specified action which an employer requires. It also provides for the imposition of sanctions—suspension of weekly payments and possible cancellation of an employee’s entitlement to compensation—where those obligations have been breached

•       Schedule 16: operates so that the amendments made by the other schedules in the Bill, with some exceptions, do not apply to defence-related claims and

•       Schedule 17: contains some new definitions which are used in the Bill.

Background

Development of statutory compensation

Prior to 1900:

… the costs of work-related injury were overwhelmingly borne by workers and their families. Access to compensation for work-related injury was confined to common law remedies. At common law a worker could obtain compensation if negligence was proven. The law, however, was judicially constructed so as to prevent this.

At the heart of this predicament was a pernicious set of legal doctrines known as the ‘unholy trinity’. These legal defences, devised by English and American judges during the first half of the nineteenth century and subsequently adopted in the Australian colonies, effectively quarantined manufacturers and other employers from the consequences of their failure to manage workplace health and safety.

The first of these defences, common employment, held that employers were not legally accountable for injuries to any of their workers caused by other members of their workforce. The second element, the voluntary assumption of risk, reflected the prevailing view of contract law and held that workers implicitly assumed responsibility for the normal hazards of their employment. Under this doctrine, responsibility for workplace health and safety was primarily, indeed almost exclusively, a matter for workers rather than their employers. Finally, under the interpretation of contributory negligence current at the time, employers were not liable for compensation where the actions of workers themselves contributed, no matter how slightly, to their injuries.

[Post 1900] … state and federal governments introduced workers’ compensation laws across the nation. These new laws were based on the doctrine of no-fault liability. Under the no-fault principle, workers covered by the legislation were only required to establish that their injuries were work related in order to qualify for compensation. There was no obligation to establish employer negligence.[10]

Nevertheless, under the early schemes described above, workers could access their rights under common law in circumstances where the employer’s negligence was so egregious as to override the effect of the unholy trinity of defences.

Introduction of the Comcare scheme

No fault and limited common law access

When the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 (the precursor to the current SRC Act), was introduced the Minister for Social Security, Brian Howe, said:

Perhaps the most controversial aspect of the new legislation is that common law actions against the Commonwealth will be replaced by… comprehensive benefits … It is clear to this Government that the common law negligence action which bases its entitlement on proof of fault is a costly, inefficient and inappropriate mechanism for compensating injured workers. Delays in settling these actions act as a positive disincentive for employees to return to work and encourage them to maximise the extent and duration of their injuries. The provision of an adequate level of weekly income, substantially increased lump sum payments on death or impairment, payments for additional expenses for medical costs, aids and appliances and household help, combined with a commitment to rehabilitation and the return to suitable employment, make redundant any need for redress to the courts. Accordingly, it will no longer be possible for an employee to sue the Commonwealth or a fellow employee. Actions against third parties will also be discouraged. Employees or their dependents who sue third parties will not be entitled to receive further benefits under the scheme and will be required to pay back any amount of compensation they have received. The Commission will pursue third parties if necessary by taking over an action in place of the employee.[11]

The Commonwealth Employees’ Rehabilitation and Compensation Act 1988[12] (when enacted) provided that an employee was entitled to claim compensation for permanent impairment and/or non-economic loss. In the alternative, an employee could elect to bring an action or proceeding against his, or her, employer or another employee for damages. Such an election was irrevocable and if successful, damages for non-economic loss were limited to $110,000.[13] That provision remains unchanged today. The cap on damages in the SRC Act has not been amended since it was introduced in 1988.

The trade-offs which were negotiated in 1988 are undermined by the amendments in the Bill.

Who is covered by the Comcare scheme

The SRC Act now underpins the Comcare scheme which provides for the rehabilitation and compensation of injured employees employed by:

•       Commonwealth Government agencies and statutory authorities that pay premiums to Comcare under the SRC Act

•       Australian Capital Territory Government agencies and authorities that pay premiums to Comcare under the SRC Act and

•       Commonwealth authorities and eligible corporations that have been granted self-insurance licences by the Commission under the SRC Act.[14]

The groups covered by the first two bullet points above are referred to as premium payers, whilst the group covered by the last of the bullet points are referred to as licensees.

Current licensees

There are currently 33 licensees within the Comcare scheme.[15] Rather than being a scheme to cover only public servants undertaking administrative duties, the scheme now also covers employees undertaking a range of job types in the telecommunications, building and construction and logistics industries.

Asciano Services Pty Ltd

Australian air Express Pty Ltd

Australian Postal Corporation

Avanteos Pty Ltd

BWA Group Services Pty Limited (Bankwest)

BIS Industries Ltd

Border Express Pty Ltd

Colonial Services Pty Ltd

Commonwealth Bank of Australia Ltd

Commonwealth Insurance Ltd

Commonwealth Securities Ltd

CSL Ltd

DHL Supply Chain (Australia) Pty Ltd

Fleetmaster Services Pty Ltd

John Holland Group Pty Ltd

John Holland Pty Ltd

John Holland Rail Pty Ltd

K&S Freighters Pty Ltd

Linfox Australia Pty Ltd

Linfox Armaguard Pty Ltd

National Australia Bank Ltd

National Wealth Management Services Ltd

Medibank Health Solutions

Medibank Private Limited

Optus Administration Pty Ltd

Prosegur Australia Pty Ltd

Reserve Bank of Australia

StartTrack Retail Pty Ltd

Telstra Corporation

Thales Australia

TNT Australia Pty Ltd

Transpacific Industries Pty Ltd

Visionstream Pty Ltd

Administration of the Comcare scheme

The Commission and Comcare are co-regulators of the SRC Act.[16] The SRC Act is administered by Comcare under the auspices of the Commission. Broadly, Comcare provides safety, rehabilitation and compensation services to the Commonwealth. The Commission oversees the activities of Comcare and other service providers under the SRC Act. The rehabilitation and compensation framework under the SRC Act and the work health and safety requirements under the Work Health and Safety Act 2011 (WHS Act) are together referred to as the Comcare scheme.

Comcare undertakes both regulatory and claims management activities in relation to Commonwealth employees, in accordance with the SRC Act and the WHS Act.[17] The ongoing tension within the Comcare scheme is that employees who are injured at work want to be appropriately compensated, whereas employers want ‘the lowest possible workers’ compensation premiums and are concerned about the escalating costs of work-related injuries and illnesses’.[18]

Reviews of the Comcare scheme

Since 2004, the Comcare scheme has been the subject of a number of reviews including:

•       by the Productivity Commission in 2004: National Workers’ Compensation and Occupational Health and Safety Frameworks (Productivity Commission report)[19]

•       by the Commonwealth Department of Education, Employment and Workplace Relations in 2009: Report of the review of self-insurance arrangements under the Comcare scheme (Review of self-insurance arrangements)[20] which was prepared after receiving a report from consulting actuaries, Taylor Fry[21]

•       by Dr Allan Hawke AC in 2012 in relation to the Comcare scheme’s performance, especially its governance and financial frameworks (Hawke Report)[22] and

•       by Peter Hanks QC in 2013 (Hanks Report).[23]

Together the Hawke and Hanks Reports are the SRC Act Review reports. The SRC Act Review reports recommended sweeping change with ‘more than 147 recommendations to rewrite the legislation on federal public sector compensation claims with the aim of getting injured bureaucrats back to work and ending their ‘‘passive’’ reliance on compensation’.[24] The Bill puts many of those recommendations into effect.

The Hanks Report noted that there have been 59 Acts amending the SRC Act since it was enacted in 1988. That being the case:

There is a strong case to be made for re-writing the SRC Act in order to bring it up to date with current working conditions, to reflect current best practices in rehabilitation and to ensure that it is laid out in a logical and functional structure which is easy to follow and apply.[25]

Despite the introduction of this Bill and the previous two Bills into the Parliament, the net result falls short of the rewrite of the SRC Act which the Hanks Report suggested. Workers’ compensation is a type of accident and injury insurance. The three Bills in their totality represent a shift towards a national system which is intended to attract an increasing number of employer corporations as licensees. If this occurs the SRC Act will, in effect, set out the terms and conditions of the ‘insurance policy’ of many more employees from a wider variety of occupations than it currently does. In that case, all parties are deserving of a plain English statement of their rights and obligations. The amendments to the SRC Act do not provide that.

Committee consideration

Senate Standing Committee on Education and Employment

The Bill was referred to the Senate Standing Committee on Education and Employment (Senate Committee) for inquiry and report.[26] The Senate Committee tabled its report on 16 June 2015, recommending that the Senate pass the Bill.[27]

The Labor members of the Senate Committee issued a dissenting report recommending that the Senate reject the Bill.

We maintain that there exists no policy justification for expanding self-insurance under Comcare (as per the changes suggested by the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014), or evidence of widespread misconduct or abuse of the system that would justify the changes outlined in this Bill. Despite limited examples outlined in the Bill (and on previous occasions by Coalition Senators) the report does not demonstrate a compromise of the scheme, and Labor Senators argue the evidence contained in the report only demonstrates the weight of opposition to the amendments proposed by the Bill.[28]

In addition, the Australian Greens (the Greens) issued a dissenting report recommending that the Bill not be passed stating that the Bill:

… swings the balance too far towards employers at the expense of employees making it even harder for workers with genuine claims to access benefits and legitimate support.

As such the Bill represents a failure to implement genuine reform, which should seek to improve the safety and health of workplaces.[29]

Senate Standing Committee for the Scrutiny of Bills

On 13 May 2015 the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) published its comments in relation to the Bill.[30] Those comments are canvassed below under the heading ‘Key issues and provisions’.

Parliamentary Joint Committee on Human Rights

On 13 May 2015 the Parliamentary Joint Committee on Human Rights (the Human Rights Committee) published extensive comments in relation to the Bill.[31] The Human Rights Committee report is comprehensive, identifying numerous provisions in the Bill which engage human rights. Comments by the Human Rights Committee are canvassed under the heading ‘Key issues and provisions’, below.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. Whilst the Government acknowledges that some of the amendments in the Bill engage human rights, it considers that the Bill is compatible.[32]

Policy position of non-government parties

Labor members

Labor opposes the Bill.[33] Speaking in relation to the Bill, Brendan O’Connor expressed his concern that whilst the government relies upon the SRC Act Review reports in respect of a number of changes:

This government has selectively adopted the recommendations which benefit employers and has ignored the recommendations to benefit workers. For example, the government has ignored the recommendations to include contractors… to provide access to compensation when someone is injured on their way to work, when on call, and for and injury management and rehabilitation code of practice that includes obligations for employers.[34]

Position of major interest groups

The opinions of major interest groups are sharply divided. Those in favour of the Bill are generally employers and existing licensees.

For instance, Transpacific, a self-insurer in the scheme, supports the amendments[35] as does Australian airExpress, another self-insurer, which stated:

The package of change impacts many areas of the SRC Act and in many instances are long overdue. AaE considers that the change package is fair and equitable and balanced between the interest of employees and employers. AaE supports that the whole package is passed to ensure the integrity of this balance.[36]

Unions and workers’ representatives are less enthusiastic about the Bill.[37] The Australian Lawyers Alliance is ‘strongly opposed’ to the legislation ‘in its entirety’ on the grounds that:

… the Bill has either ignored or entirely contradicted recommendations put forward by Mr Hanks that ensured the fast and balanced rehabilitation of workers back into the workforce. The proposed changes in the Bill put the considerations of big business ahead of those of injured workers.[38]

As already stated the Victorian Government does not support the Bill on the grounds that it will ‘create an exodus of premium paying national employers from existing state/territory schemes, adversely affecting existing pooling arrangements and premiums for medium to small businesses in those jurisdictions’.[39]

Commentary by stakeholders in relation to the amendments in specific schedules to the Bill is canvassed under the heading ‘Key issues and provisions’ below.

Financial implications

According to the Explanatory Memorandum the Bill will have nil financial impact on the Commonwealth.[40]

Whilst the Bill does not appear to increase the Commonwealth’s costs, it will probably give rise to savings because the premiums payable by Commonwealth departments are expected to decrease once the amendments in the Bill, which limit an injured employee’s access to compensation and the amount payable in the event that a claim is accepted, come into effect.

Key issues and provisions

Schedule 1—eligibility

Commencement

The provisions in Schedule 1 to the Bill commence on the day after Royal Assent. The amendments in Schedule 1 apply in relation to any injury which is sustained by an employee after that date.[41]

Definition of injury

Section 14 of the SRC Act provides that Comcare is liable to pay compensation in accordance with the terms of the Act in respect of an injury suffered by an employee, if the injury results in death, incapacity for work, or impairment. Whether or not a claimant for compensation has suffered an injury is a threshold question. If the employee has not suffered an injury within the meaning set out in the SRC Act, Comcare (or a self-insurer) has no liability to pay compensation.

Currently, the definition of injury in section 5A of the SRC Act means the following:

•       a disease suffered by an employee

•       an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment or

•       an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment.

However, a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment is specifically excluded from the definition.[42]

Guide to Schedule 1

The provisions in Schedule 1 to the Bill relate to an employee’s eligibility for compensation and rehabilitation in respect of an injury. They:

·    widen the scope of reasonable administrative action

·    increase the threshold for perception-based disease claims

·    introduce the term designated injury, for example heart attacks, strokes and spinal disc ruptures, in relation to which the employee must prove the connection with their employment rather than the current practice whereby those injuries are considered to occur in the course of employment if they occur in the workplace, and

·    list the matters to be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment.

The Bill amends section 5A of the SRC Act to substantially change what constitutes an injury.

Reasonable management action

First, references in section 5A of the SRC Act to reasonable administrative action are replaced with references to reasonable management action. Matters which are indicative of the conduct which would be management action are listed in the Bill.[43] Management action is not unlike the current concept of administrative action. However the amendment adds additional elements so that management action will also include an organisational or corporate restructure, a direction given for an operational purpose or purposes—and anything done in connection with an action taken in either of those circumstances.

Key issue—establishing fault

Many submitters expressed dismay at the broadening of the term administrative action to management action which will encompass ‘a direction given for an operational purpose or purposes’. Slater and Gordon considers that:

…the new provision will exclude injuries, including physical injuries, that result from any operational direction given at any time prior to the injury unless the direction is not reasonable … Hence, an injury which has been contributed to by a system of work may be excluded from compensation unless the worker can establish that the system of work was not reasonable. This introduces a concept of fault into a no-fault scheme and a perverse onus of proof upon a faultless injured worker.[44]

The ACTU echoes these concerns stating:

Employers have an absolute duty of care to provide a safe working environment, and workers’ compensation laws and processes must acknowledge this duty of care and operate under the assumption that workers’ compensation is a no-fault jurisdiction.[45]

Anticipation or expectation of management action

Second, the existing exclusion relating to reasonable administrative action taken in a reasonable manner in respect of the employee’s employment is amended.[46] The amendment operates so that a disease, injury or aggravation suffered as a result of an employee’s anticipation or expectation of reasonable management action is also excluded from the definition of injury.

Designated injury

The third significant change is to introduce a new class of injury—being a designated injury.[47] A designated injury includes injuries such as heart attack, stroke, an injury to an intervertebral disc and an injury which is prescribed by regulations where the injury is not a disease and the injury consists of, is caused by, results from, or is associated with a pre-existing ailment.[48]

If an employee suffers a designated injury it will be for the employee to prove that his, or her, employment contributed to the injury to a significant degree. In the absence of that proof Comcare, or a self-insurer, will not be liable for compensation.[49] The test for whether employment contributed to a designated injury to a significant degree requires a consideration of matters such as the state of the employee’s physical and psychological health before the designated injury and the probability that, if the employee had not been employed in the employment, the injury would have been suffered at or about the same time in the employee’s life or at the same stage of the employee’s life.[50]

Key issue—intervertebral disc

The Law Council of Australia has expressed concern at the specification of intervertebral disc injury as a designated injury stating:

This is inconsistent with the approach in a number of other jurisdictions, where such injuries are dealt with under ordinary liability provisions. Normally there will need to be some environmental, as opposed to congenital, contribution to an injury to an intervertebral disc. This is distinguishable from a heart attack or a stroke which may simply occur due to the natural progression of an underlying condition. There is no reason in principle to deny liability for an injury to an intervertebral disc if it is suffered because of an employee’s work duties.[51]

On the other hand, self-insurer Transpacific, broadly supports the proposed exclusions from the definition of injury as the ‘changes will bring the scheme into alignment with state based workers compensation legislation’ and that ‘overall the proposed amendments under Schedule 1 will greatly assist employers in reducing the burden of cost for lifestyle and age related disease processes over which they have limited control’.[52]

Definition of disease

At present, subsection 5B(1) of the SRC Act defines disease as an ailment suffered by an employee (or an aggravation of such an ailment) that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee. Subsection 5B(2) contains a list of matters which may be taken into account in determining whether the ailment (or the aggravation of the ailment) was contributed to, to a significant degree, by the employee’s employment.

The Bill substantially changes what constitutes a disease.[53] There are additional matters which may be taken into account in the determination process, being:

•       the state of the employee’s physical and psychological health before the ailment or aggravation[54]

•       the probability that the employee would have suffered from the ailment or aggravation (or similar) at or about the same time in, or stage of, the employee’s life[55]

•       whether the ailment or aggravation is, to a significant degree, attributable to the employee’s belief about, or interpretation of an incident or state of affairs—and if so, whether the employee had reasonable grounds for the belief or interpretation.[56]

The latter of these amendments is a partial response to recommendation 5.2 of the Hanks Report. [57] According to Hanks ‘it is an unfair burden on employers to make them liable to pay compensation for a psychological injury that is caused by an employee’s fantasising rather than by any aspect of employment’.[58] To that end he recommended that the effect of the Federal Court’s decision in Wiegand v Comcare should be negated.[59] The amendment does that. However, the remainder of the recommendation was that an employee’s perception of a state of affairs will only provide a connection with employment where that perception is reasonable. The amendment imposes a stricter test—whether the employee has reasonable grounds for the belief.

In addition, the matters to be considered in making a determination about whether an employee is suffering from a disease will include any other matters affecting the employee’s physical or psychological health and any other relevant matters.[60]

Key issue—a hypothetical assessment

According to the AMWU:

This proposal allows the determining authority to create a “hypothetical case” where the authority has “insight” to be able to predict what would or would not have happened. This particular provision will discriminate against who have been active in both their working and recreational lives. It’s hard to stop the ageing process![61]

The Australian Lawyers Alliance states that:

… despite a worker clearly suffering a work related injury, an employer can shirk responsibility by contending that, because of his or her age, they probably would have suffered the injury anyway. This test is clearly intended to limit employers’ responsibility to rehabilitate and retrain the older workforce.[62]

Compensation Standards

Finally, Comcare will be empowered to determine, by legislative instrument, a Compensation Standard about a specified ailment and to set out the factors that must exist before it can be said that a person is suffering from it.[63]

Consistent with this power, where a Compensation Standard is in force in relation to an ailment (or aggravation of an ailment) the matters specified in the Compensation Standard must be taken into account in the process of determining whether an employee has a disease.[64]

Human Rights Committee comments

The Human Rights Committee noted the tightening of the eligibility criteria for accessing Comcare—particularly in respect of designated injuries—and considered that ‘the measure engages and limits the right to social security and the right to health’.[65] Whilst the statement of compatibility indicated that the objective of the measure is to re-align the SRC Act so that it better achieves its legitimate purpose of compensating individuals for injuries and diseases that are related to a person’s work, the Human Rights Committee has sought further advice from the Minister for Employment in order to be satisfied that this is so.

Schedule 2—rehabilitation

Commencement

Schedule 2 contains four parts. Parts 1 and 4 commence on day to be fixed by Proclamation, or 12 months after Royal Assent, whichever comes first.

Part 2 commences on the later of the day immediately after the commencement of the provisions in Part 1; or immediately after the commencement of Schedule 2 to the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015.

Part 3 commences on the later of the day immediately after the commencement of the provisions in Part 1; or immediately after the commencement of Part 1 of Schedule 1 to the Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Act 2015.

Guide to Schedule 2

The amendments in Schedule 2 to the Bill relate to who is responsible for the rehabilitation of an employee, and how that rehabilitation is carried out. Schedule 2:

·    introduces the concept of liable employer and sets out the duties of liable employers

·    amends the definition of suitable employment to mean any employment including self-employment

·    establishes the Comcare incentive scheme

·    amends the existing two stage process for creating a rehabilitation program to a single stage process for formulating workplace rehabilitation plans

·    introduces the requirement that an employee undergo a work readiness assessment if there is doubt about the employee’s capacity for suitable work and

·    inserts a power for an employer to require an employee to undergo a medical examination by a medical practitioner who is chosen by the employer.

Liable employer

The Bill amends Part III of the SRC Act in order to identify the employer that is responsible for the rehabilitation of the employee.[66]

In most cases the employer will be the current employer.[67] To this end, the definition of current employer is inserted into subsection 4(1) of the SRC Act as follows:

(a)     if the employee is employed in an Entity—the principal officer of the Entity[68] or

(b)    if the employee is employed in a Commonwealth authority—the principal officer of the Commonwealth authority or

(c)     if the employee is employed by a licensed corporation—the principal officer of the corporation or

(d)    if the employee is employed by a corporation (within the meaning of Part VIII) that is not a licensed corporation—the principal executive officer of the corporation.[69]

However, where the injury is a disease, a designated injury or an aggravation of a designated injury, the liable employer will be the person’s employer at the time that the employment contributed, to a significant degree, to the disease, designated injury or the aggravation of a designated injury.[70]

The exception to the rules about identifying the liable employer is if the employer is an exempt authority.[71] In that case, the liable employer will be Comcare.

In addition, where employment with two or more liable employers contributed to a disease, a designated injury or an aggravation of a designated injury the most recent employer is the liable employer.[72] The Bill sets out the default position in circumstances where the liable employer ceases to exist or ceases to perform a function.[73] For the avoidance of doubt, Comcare may determine a specified Entity or Commonwealth authority to be the liable employer. In that case, Comcare must notify the employee in writing of that determination.[74]

Duties of liable employers

The Bill sets out the duties of liable employers being:

•       the duty to ensure the rehabilitation of the employee and

•       the duty to provide suitable employment.[75]

The first duty arises when a liable employer has been formally notified of an injury suffered by an employee which results in an incapacity to work or an impairment.[76] The liable employer must take all reasonably practicable steps to ensure the rehabilitation of the employee.[77] Section 4 of the SRC Act defines impairment as the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function, or part of such system or function.

In the event that an employee has suffered an injury resulting in an incapacity for work, or an impairment, the second duty of a liable employer is to take all reasonably practicable steps to provide the employee with suitable employment or assist the employee to find such employment.[78] In order to fulfil the second duty the liable employer must first determine whether the employee has the potential to be in suitable employment. That must be ascertained having regard to the potential of the employee to be rehabilitated, to benefit from medical treatment and any other relevant matters.[79]

The second duty operates so that if the injured or incapacitated employee is in suitable employment, the liable employer must take all reasonably practicable steps to maintain the employee in suitable employment.[80]

The liable employer, in performing the duty to provide suitable employment, is required as far as reasonably practicable to consult with both the employee and the legally qualified medical practitioner who is providing, or supervising, the medical treatment for the injury.[81] In that case, the medical practitioner may give the liable employer information about the employee that is relevant to the consultation.

Suitable employment

Suitable employment means any employment (including self-employment) for which the employee is suited, having regard to:

•       the employee’s age, experience, training, language and other skills

•       the employee’s suitability for rehabilitation or vocational retraining

•       if employment is available at a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence and

•       any other relevant matters.[82]

According to the Hanks Report, some participants in the consultations which were part of the review process argued that the definition of suitable employment should not be limited to the existing employer ‘because return to work in the same workplace can be difficult and is not optimal in all cases. There is no support provided in the Comcare scheme for a return to work with a different employer’.[83]

The expanded definition of suitable employment responds to this concern by providing that suitable employment may mean any employment including self-employment. In addition, Comcare is empowered by the Bill to formulate a scheme which would allow Comcare to make payments to employers as an incentive to provide suitable employment for employees who have suffered an injury, are unemployed and are seeking paid work.[84] This responds to recommendation 6.18 of the Hanks Report.[85]

However the expanded definition of suitable work dovetails with the ‘deemed capacity to earn’ provisions which are contained in Schedule 9 to the Bill. This will have an impact on the rate at which weekly incapacity payments are made ‘even where the worker is not working’.[86] (See the discussion under Schedule 9 below.)

Workplace rehabilitation plans

The Hanks Report recommended that the term ‘rehabilitation program’ in the SRC Act should be changed to ‘workplace rehabilitation plan’ on the ground that the ‘title would confirm that rehabilitation is vocationally directed and is aimed at the return to work of the employee’.[87] It is through the introduction of workplace rehabilitation plans and the obligations which arise for an employee under them, that the Bill moves the core emphasis of rehabilitation from a medical focus to a return to work focus.

Employer’s obligations

Consistent with the employer’s first duty—to ensure the rehabilitation of the employee—a liable employer who has been formally notified of an injury must consider whether there should be a workplace rehabilitation plan, and if so, the content of the plan.[88]

If there is to be a workplace rehabilitation plan it is the liable employer’s role to formulate it. It is not the employee’s role and it is not the role of their medical practitioner.[89] However, before doing so, the liable employer must, as far as reasonably practicable, consult all of the following:

•       the employee

•       the legally qualified medical practitioner who is providing, or supervising, the medical treatment of the injury and

•       if the liable employer is not the current employer of the employee—the current employer.

As part of that consultation, both the medical practitioner and the current employer (if relevant) may give the liable employer relevant information about the employee.[90]

If the liable employer decides to formulate a workplace rehabilitation plan for an employee, then a copy is to be given to the employee and the employee is to be informed of his, or her, responsibilities under the plan.[91] If the liable employer is not the current employer, the liable employer must give a copy of the workplace rehabilitation plan to the current employer[92] who must, as far as reasonably practicable, cooperate with the liable employer in relation to the plan and take all reasonable steps to allow the employee to fulfil his, or her, responsibilities under the plan.[93]

Importantly, a liable employer may decide not to formulate a workplace rehabilitation plan for an employee in relation to an injury. The Explanatory Memorandum is silent about the circumstances in which a liable employer would not formulate a workplace rehabilitation plan. Presumably this would only occur where the employee has suffered a catastrophic injury. However, the Bill does not specify the matters to be taken into account by an employer in making the decision not to formulate the relevant plan. However, the liable employer must notify the employee in writing of that decision.[94]

A liable employer may, in writing, vary or revoke the plan at any time.[95] Before that occurs, the employer must consult with the employee and the legally qualified medical practitioner who is providing, or supervising, the medical treatment of the injury.[96] If the plan is varied, the liable employer must give a copy of the variation or revocation to the employee, the current employer (if that is not the liable employer) and to the relevant authority.[97]

It may be that a workplace rehabilitation plan provides that specified activities are to be carried out by the liable employer under the plan. In that case, the liable employer must comply with the plan, to the extent that the plan imposes obligations on the employer.[98]

Content of the workplace rehabilitation plan

A workplace rehabilitation plan is directed towards returning the employee to suitable employment as soon as practicable and, that done, in maintaining the employee in suitable employment.[99] If the employee does not have the potential to be in suitable employment, the workplace rehabilitation plan is directed towards maximising the employee’s independent functioning.

A workplace rehabilitation plan may make provision for a range of activities including, but not limited to, any or all of the following:

•       an initial rehabilitation assessment, a functional assessment and/or workplace assessment[100]

•       advice about job modification[101]

•       job seeking, in addition to training in relation to and advice or assistance about job seeking[102]

•       the provision of aids, appliances, apparatus or other material that is necessary to facilitate return to work or maintaining the employee in work[103] and

•       modification of a work station or equipment used by the employee in order to facilitate return to work or maintaining the employee in work.[104]

Employee’s obligations

The employee has three sets of obligations.

First an employee must participate in the consultation with the employer about the content of the workplace rehabilitation plan[105]—even though a failure to do so will not affect its validity.[106]

The second obligation (known as the employee’s responsibilities) is to undertake the specified activities that are set out in the workplace rehabilitation plan.[107] This responsibility is particularly onerous. Even if the employee does not agree with the contents of the workplace rehabilitation plan, a refusal or failure, without reasonable excuse, to fulfil his, or her, stated responsibilities under a workplace rehabilitation plan will lead to the imposition of sanctions on the employee.[108] These sanctions include suspension of payments of weekly compensation until the breach is remedied and, in the most serious of cases, cancellation of the employee’s entitlement to workers’ compensation. (See the discussion about the sanctions regime under Schedule 15 below.)

Finally, where the workplace rehabilitation plan provides that one or more job-seeking activities are to be carried out by the employee, the employee must notify the liable employer, in writing, of any change to the employee’s circumstances that would affect the employee’s ability to carry out those activities within three working days, after the employee becomes aware of the change.[109]

Review rights

Where a liable employer is the principal officer of a licensed corporation and has formulated a workplace rehabilitation plan (or has decided not to formulate workplace rehabilitation plan), the employee must be given a written notice setting out the terms of the determination and the reasons for it, along with a statement that the employee may request the relevant authority to conduct a review of the determination.[110]

The request for a review must be made within 30 days after the day on which the determination first came to the notice of the employee or within such further period (if any) as the relevant authority, either before or after the expiration of that period, allows.[111]

The relevant authority must review the determination and may make a decision affirming or revoking the determination or varying the determination in such manner as the relevant authority thinks fit.[112]

Key issue—achieving return to work outcomes

According to the Australian Public Service Commission:

… there is strong international evidence that injured workers will get sicker if they remain at home. Historical thinking was that injured employees should be at home until they are 100 per cent job ready. Current evidence is that the interests of employees are best served if they return to work as soon as possible, with workplace adjustments to support their return …

Return-to-work rates are falling in the APS, from approximately 89% in 2008-09, to 80% in 2012-13. Changes to the scheme which improve the return-to-work process are critical, given the strong evidence of the health benefits of work.[113]

However there is concern that workplace rehabilitation plans may include job seeking activities. Slater and Gordon argues that the Bill:

… significantly broadens the concept of suitable employment and provides the liable employer with the power to order an employee to carry out one or more job seeking activities. Rather than being limited to the liable employer who is responsible for the injury, suitable employment includes any job with any employer. This means liable employers can divest themselves of responsibility to provide suitable employment by passing the injured worker off to the job market at large, whether or not that market realistically has a job for the worker.[114]

The rationale for the amendment lies in the Hanks Report, which states:

It can be difficult to maintain rehabilitation momentum for an injured employee who has received incapacity payments for a significant period. In order to maintain momentum for long-term incapacitated employees, examination of the model used by Centrelink, in particular the activity test, may be useful.

(a)      The activity test is designed to ensure that unemployed people receiving income support payments are “actively looking for work and/or doing everything that they can to become ready for work in the future”.

(b)     Similarly, participation requirements “aim to ensure that a person looks for, and undertakes, paid work in line with the person’s work capacity” in order “to increase work force participation … and reduce welfare dependency”.

(c)      Generally, job seekers must be “actively seeking and willing to undertake any paid work that is not unsuitable”. That usually requires job search, paid or voluntary work, study or other activities. Different requirements may apply for job seekers who have a partial capacity to work, early school leavers, those who are principal carers, and those aged 55 or over.

(d)     A person who does not meet the activity test or participation requirements may have a “failure” imposed, which may affect the person’s social security payments.[115]

The amendment institutes an activity test element into the workplace rehabilitation plan as suggested by the Hanks Report. However the Hanks Report recommended that an activity test be introduced only where the injured employee has received incapacity payment for a significant period. The Bill does not include that limitation and provides that an activity test may be part of a workplace rehabilitation plan.

There is nothing in the drafting of the Bill which would moderate the power of an employer to formulate a workplace rehabilitation plan requiring an injured employee to undertake job seeking activities at any time. In formulating the workplace assessment plan the employer must, as far as reasonably practicable, consult with the employee’s medical practitioner. However, there is no obligation upon an employer to accept the opinion of the medical practitioner. In addition, as can be seen below, there is no requirement that an injured employee undergo a work readiness assessment. It is merely one of a number of tools at the disposal of the liable employer to achieve a return to work outcome.

Work readiness assessment

The relevant authority may require an injured employee to undergo an assessment of the employee’s capacity to undertake suitable employment. This is known as a work readiness assessment.[116] A work readiness assessment must be made by any of the following who are nominated by the relevant authority:

•       a legally qualified medical practitioner

•       suitably qualified person—other than a legally qualified medical practitioner or

•       a panel comprising of such legally qualified medical practitioners or other suitably qualified persons (or both).

The person who conducted the work readiness assessment must give a report of the assessment to the relevant authority. That report must be in accordance with the rules (if any) about such reports that have been made by Comcare.[117]

Power to require medical examination

Currently, subsection 57(1) of the SRC Act empowers the relevant authority to require an employee who has given notice of an injury, or made a claim for compensation to undergo a medical examination by a legally qualified medical practitioner nominated by the relevant authority.

That subsection is amended by the Bill so that, in addition to the existing power to require an employee to undergo a medical examination, an examination may be required where one or more payments of compensation are being made to an employee under the SRC Act.[118] The relevant authority may require the employee to undergo an examination by any of the following who are nominated by the relevant authority:

•       a legally qualified medical practitioner

•       a suitably qualified person—other than a medical practitioner or

•       a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both).

If an employee undergoes such a medical examination, a report of the examination must be given to the relevant authority. In that case, if the relevant authority is not the liable employer, the relevant authority may give a copy of a report of the examination to the liable employer. The report of the examination may be used by the liable employer in the exercise of the powers, or the performance of the functions, of the liable employer under Part III of the SRC Act—that is for rehabilitation.[119]

Key issue—review of ongoing entitlement

The Hanks Report states:

The literature is clear. The majority of injured employees make full physical, mental and social recoveries, but there is much individual variation. Around 20 % to 30 % suffer significantly greater distress and disability than might be expected from physical factors alone. After one year, approximately 5 % of employees encounter serious difficulties which appear out of proportion to the physical pathology of their injuries.

There is no legislative impediment to a determining authority conducting a review at any point during the life of a claim. One of the functions of determining authorities is to minimise the duration and severity of injuries to employees.[120]

The Hanks Report recommended that there be a review of each claim at predetermined times. The amendment to subsection 57(1) of the SRC Act above, falls short of imposing the formal reviews which were recommended. However, it will allow the relevant authority to request that an employee undergo a medical examination at any time once the claim has been made, the outcome of which will identify any additional factors to be addressed in the employee’s ongoing recovery and rehabilitation.

Schedule 3—scheme integrity

Commencement

Schedule 3 comprises three parts. Parts 1 and 3 commence on the day after Royal Assent.

Part 2 commences immediately after the commencement of Part 1; or immediately after the commencement of Schedule 2 to the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015—whichever is later.

Guide to Schedule 3

Schedule 3 to the Bill contains a mix of amendments which are intended to improve the integrity and financial viability of the Comcare scheme which span different Parts of the SRC Act including:

·    existing provisions about third party indemnity in common law claims (Part IV)

·    passing a claim for compensation to the relevant authority within three days and requesting information for the purpose of assessing a claim (Part V)

·    imposing time limits for considering claims and reconsidering claim determinations (Part VI)

·    establishing that compensation for detriment may be paid in the event of defective administration (Part VII)

·    granting licences (Part VIII) and

·    recovery of overpayments (Part IX).

Common law claims against third parties

Existing section 50 (contained in Part IV) of the SRC Act provides that a compensation payer can recover damages from a liable third party where the injured employee or a dependant of a deceased employee can recover damages. In that case Comcare can make a claim against the liable third party in the name of the employee or dependant for the recovery of damages.

Under the Bill, third parties will be required to indemnify compensation payers where there exists both an obligation to pay compensation under the SRC Act and an undischarged liability on the part of a third party to pay damages or state compensation.[121]

Claims for compensation

At present section 54 (contained in Part V) of the SRC Act provides that compensation is not payable to a person under the Act unless a claim for compensation is made by, or on behalf of, the person. Under the Bill, where an employee gives a claim to the Entity or Commonwealth authority in which the person was employed at the time the injury occurred, the Entity or authority must ensure that the claim is given to the relevant authority within three working days after the day on which the claim was received.[122]

Power to request information

At present section 58 of the SRC Act contains a power to request the provision of information.[123] The Bill amends that power so that where a relevant authority has received a claim and is satisfied that the claimant either has information or a document that is relevant to the claim or could obtain such information or a copy of the document—without unreasonable expense or inconvenience—then the relevant authority may give written notice to the claimant requiring the claimant to give the information or documents to the relevant authority in the time and manner which is set out in the notice. The period for compliance must not be less than 14 days after the notice is given.[124]

If a claimant refuses or fails, without reasonable excuse, to comply with such a notice, the relevant authority may refuse to deal with the claim until the claimant gives the relevant authority the information, or a copy of the document, specified in the notice.[125]

Where a relevant authority has received a claim and is satisfied that a third party has information or a document or could obtain such information or a copy of the document—without unreasonable expense or inconvenience—the relevant authority may give written notice to the third party requesting him or her to give the information or documents to the relevant authority in the time and manner which is set out in the notice.[126] The period for compliance must not be less than 14 days after the notice is given.

If the third party complies with a notice given by a relevant authority, an amount may be paid to the person, in relation to compliance with the notice, by the relevant authority.

Key issue—loss of privacy

According to the Australian Lawyers Alliance:

No other workers’ compensation scheme provides for such a broad and unrestrictive provision of private medical information. The private rights of individuals to consultation and treatment are being eroded by these provisions without justification. Workers may be obliged to disclose highly confidential and sensitive information irrelevant to the workers compensation issues in dispute. That information can be used for a variety of purposes to the detriment of the injured worker without adequate protection checks and balances.

[These changes] now enable Comcare and licensees to force an injured worker or claimant to obtain their doctor’s private clinical notes. A worker must obtain “relevant information” or risk draconian sanctions being applied which, in this case, extends to a refusal to deal with a claim.

These changes represent an erosion of the doctor-patient relationship of confidentiality.[127]

Slater and Gordon agrees. ‘New section 58 of the Bill introduces a disturbing invasion of the right to privacy of an injured worker. [It] enables Comcare or a “relevant authority” to demand information from a worker within 14 days.’[128] Of additional concern to Slater and Gordon is that:

No appeal mechanism follows where there is a genuine dispute in relation to whether certain information or a certain document is actually relevant to a claim. This is particularly important where information requests are worded broadly and would require an injured worker to provide private and potentially irrelevant medical information to the relevant authority in whose hands privacy would not be guaranteed …

The new section 58A takes the breach of privacy one step further in that it enables Comcare or the relevant authority to obtain documents about an injured worker from a third party.[129]

Time limits for determining claims

Currently subsection 61(1A) (contained in Part VI) of the SRC Act provides that a determining authority must consider and determine each claim for compensation under section 14 within the period prescribed by the regulations. However, no such regulations have been made. Instead the SRC Act requires Comcare to make determinations accurately and quickly in relation to claims.[130] Where a licence confers an authority to pay claims, licensees are to do likewise.[131]

The Bill inserts time limits within which compensation claims are to be determined. The amendments operate as follows:

•       Where the claim for compensation is for an injury that is not a disease, a designated injury or an aggravation of a designated injury—liability under section 14 in respect of the claim is to be determined within the 30-day period that began when the claim was received.[132] Where such liability is not determined within the 30-day period, the determining authority is taken to have made a determination that compensation is not payable.[133]

•       Where the claim for compensation relates to an injury that is a disease, a designated injury or an aggravation of a designated injury—the determining authority must consider and determine the claim, to the extent that the claim relates to liability under section 14, within the 70-day period that began when the claim was received.[134] Where such liability is not determined within the 70-day period, the determining authority is taken to have made a determination that compensation is not payable.[135]

Whilst it is an improvement on the existing Comcare scheme that time limits for determining a claim have now been inserted those time limits are, in most cases, longer than time limits in state schemes.

Jurisdiction

Timeframes for claim decision

Queensland

Workers’ Compensation and Rehabilitation Act 2003

Subsection 134(2) requires an insurer to make a decision on an application for compensation within 20 business days after the application is made. If a decision is not made within that time, the insurer must, within five business days, notify the claimant of his or her rights of review.

New South Wales

Workplace Injury Management and Workers Compensation Act 1998

Under sections 275 and 280 an insurer must provisionally accept liability within seven days after notification of injury for up to $5,000 of medical payments.

A decision on ongoing liability for weekly payments must be made within 21 days of a claim, under subsections 274(1) and 279(1).

Victoria

Workplace Injury Rehabilitation and Compensation Act 2013

28 days for weekly payments if the claim is received by the insurer within ten days of the date of the injury.

Tasmania

Workers’ Rehabilitation and Compensation Act 1988

Section 81AB and subsection 81A(1) operate so that an employer has 84 days to dispute liability in respect of a claim.

South Australia

Return to Work Act 2014

Subsection 31(4) provides that where the claim is for income maintenance, it is to be determined, where practicable, within ten business days after the date of receipt of the claim.

Western Australia

Workers’ Compensation and Injury Management Act 1981

Subsection 57A(3) provides that the insurer must, before the expiration of 14 days after the claim was made by the employer give the worker to whom the claim relates, and the employer, notice that liability is accepted or that liability is disputed.

Source: Safe Work Australia, Comparison of workers’ compensation arrangements in Australia and New Zealand (2015), Commonwealth of Australia, July 2015.

Time limits for reconsideration

Existing section 62 of the SRC Act allows for a determining authority to reconsider a determination on its own motion or at the request of a claimant, the Commonwealth or a Commonwealth authority. Subsection 62(6) provides that the reconsideration of a determination must be made ‘within the period prescribed by regulations’. The Bill will require that a determining authority must decide the request for consideration within the 60-day period that began when the request was received. In the event that this does not occur, the determining authority is taken to have made a decision affirming the determination.[136]

Under existing section 63 of the SRC Act, the reconsideration decision is a reviewable decision.

Applications to the Administrative Appeals Tribunal

Existing subsection 64(1) of the SRC Act sets out the parties who are entitled to make an application to the Administrative Appeals Tribunal (AAT) for a review of a reviewable decision.

The Bill amends section 64 of the SRC Act so that where an application has been made to the AAT for review of a decision that was made under section 62, the parties may agree that a specified determination should be treated as a reviewable decision. In that case the two decisions can be considered together, provided that they relate to the same employee and the same issue, incident or state of affairs.[137]

Compensation for detriment caused by defective administration

The Bill contains provisions which will allow for the payment of compensation for detriment caused by defective administration as follows:[138]

•       Comcare will be empowered to make payments to persons who are, or were, entitled to compensation under the SRC Act and who have suffered a loss as a result of an act or omission of Comcare that relates to that compensation and concerns Comcare’s claims management functions or powers

•       in deciding to make a payment under the section, Comcare must comply with any principles determined by the Minister, by legislative instrument

•       the particulars of a payment made under the section must be included in Comcare’s annual report prepared by the Chief Executive Officer and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013.[139]

According to the Explanatory Memorandum, this places Comcare in the same position as other non-corporate Commonwealth entities.[140] However, the payment of compensation under the proposed provision does not extend to a licensee.

Scrutiny of Bills Committee

The Scrutiny of Bills Committee drew attention to item 1 of Schedule 3 of the Bill, which has the effect of excluding decisions made about compensation for detriment caused by defective administration from being reviewed under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act).[141] Despite the Explanatory Memorandum and statement of compatibility suggesting that this approach is justified for a number of reasons, the Scrutiny of Bills Committee stated that:

As a matter of general principle, the committee does not accept the broad proposition that judicial review should not be available in relation to discretionary schemes for compensation, and remains unpersuaded as to why a scheme for the compensation for defective administration should be excluded from judicial review. However, in light of the detailed justification provided for the approach in the explanatory materials, the committee leaves the question of whether ADJR Act review should apply to the proposed scheme to the Senate as a whole.[142]

Licences

Part VIII of the SRC Act empowers the Commission to grant licences to Commonwealth authorities or eligible corporations.[143] Within Part VIII, section 104 provides that the Commission may make a decision to grant a licence.

The Bill amends section 104 so that, in considering whether to grant a licence, the Commission must be satisfied that an applicant has the capacity to meet the standards set by the Commission in relation to the rehabilitation of its employees as well as the standards for the work health and safety of the applicant’s workers.[144]

A licence may entitle the licensee to accept liability to pay compensation and other amounts under the SRC Act,[145] and to manage claims made by employees.[146] Existing subsection 108C(1) provides that where a licensee is authorised to manage claims, it must do so within the scope of its licence.

The Bill operates so that if a licensee that is authorised to manage claims institutes proceedings in a court or tribunal about a determination that it has made, the licensee must, as soon as practicable, inform Comcare of the details of the proceedings.[147] In that case, the court or tribunal in which the proceedings have been instituted must join Comcare as a party to the proceedings if so requested.[148]

If proceedings have been brought against a licensee in accordance with subsection 108C(7) or proceedings have been instituted by a licensee under subsection 108(8A), then Comcare may give the licensee a written notice requiring the licensee to provide copies of documents that are relevant to those proceedings within a specified time. In that case, the licensee must comply with the notice.[149]

Recovery of overpayments

Existing sections 114–115 (contained in Part IX) of the SRC Act deal with the recovery of overpayments. In particular, existing subsection 114(1) provides for the recovery of amounts of compensation that have been paid to a person that should not have been paid by a relevant authority, in a court of competent jurisdiction.

The Bill amends section 114 to require an employer who has been overpaid an amount by Comcare to repay the amount to Comcare.[150] In addition, where an employer has paid a corresponding amount to an employee, the employee must repay the amount to the employer.[151]

Change of circumstances

The Bill requires an employee who is receiving payments of compensation to notify the relevant authority, in writing, of any change to his or her circumstances that affects their entitlement to compensation or the amount of that compensation. Notification is to be given within 14 days after the employee became aware of the change.[152]

Obtaining information and documents

The Bill empowers the relevant authority to give notice to the employee or to a third party, request that the employee or third party give information or a copy of a specified document to the relevant authority within the period set out in the notice or within a further period which is allowed by the relevant authority. In either case the period specified in the notice must not be less than 14 days.[153]

Where the information or document is provided by a third party, an amount may be paid by the relevant authority to the person in relation to compliance with the notice.[154]

Key issue—loss of privacy

Submitters to the Senate Committee were concerned about the loss of privacy of employees arising from the power to obtain information and documents set out above which:

… increase powers to gather information about the worker. Without the injured worker’s permission, a ‘relevant authority’ can obtain information or documents from an employee or third party even after liability has been accepted. Failure or refusal to provide the information may also lead to sanctions against the worker.[155]

Schedule 4—provisional medical expense payments

Commencement

The amendments in Schedule 4 to the Bill commence on a day to be fixed by Proclamation, or 12 months after Royal Assent, whichever comes first.

Guide to Schedule 4

There is currently no provision in the SRC Act which allows for the making of payments for medical expenses before a claim for compensation is determined. The provisions in Schedule 4 set out the new rules for provisional medical expense payments including:

·    how to request the payment and

·    the amount of the payment.[156]

The first step arising from the amendments in Schedule 4 to the Bill is that a notice must be given to the relevant authority by the employee, someone acting on the employee’s behalf or where the employee is deceased, their legal personal representative.[157] The notice must be in writing and state, amongst other things, that the person making the request believes on reasonable grounds that the employee has suffered an injury (called the alleged injury). The notice must request the relevant authority to make a provisional medical expense payment to cover the cost of one or more items of medical treatment the employee has obtained in relation to the injury.

A request for a provisional medical expense payment must be made within 40 working days after the injury.[158] The amount payable is equal to the total amount of compensation that would have been payable under section 16 for the cost of those items, if the alleged injury was accepted as an injury under the Act.[159] (See the discussion in Schedule 5, below, about the liability for the cost of medical treatment.) However, the amount payable is capped at $5,000.[160]

Importantly, the relevant authority may make a decision to refuse to make a provisional medical expense payment. That decision must be made with seven working days after the day that the request for payment is made.[161] The basis for making such a decision can be any of the following:

•       the relevant authority is satisfied that the alleged injury was not sustained by the employee or

•       the relevant authority is satisfied that the cost of those items of medical treatment is not a cost in respect of which compensation is payable under section 16 or

•       the relevant authority, by written notice given to the employee, requested the employee to make a claim for compensation in respect of the alleged injury, and the employee refused or failed to make such a claim within seven working days after the day on which the request is made by the relevant authority or

•       under the regulations, the relevant authority is taken to have reasonable grounds for not making the provisional medical expense payment.

If a provisional medical expense payment is made, and compensation subsequently becomes payable in respect of those costs, the payment is taken to have discharged so much of the relevant authority’s liability to pay the total amount of the compensation and the payment is not recoverable from the employee.[162] However, the making of a provisional medical expense payment does not constitute acceptance of a claim.[163] This appears to have the effect that where a subsequent claim is not accepted the amount paid by way of a provisional medical expense payment will be overpaid and, presumably, recoverable from the employee. The Explanatory Memorandum is silent on this point.

The relevant authority is required to provide a document which it holds in relation to a request for a provisional medical expense payment to the employee, the legal personal representative, the Commonwealth or Commonwealth authority or to the licensee corporation as the case may be, upon request.[164]

Division 4A of Part VII of the SRC Act sets out the rules about premiums and regulatory contributions. Within Division 4A, section 97A details those matters which are to be taken into account in determining the amount of premiums payable by an Entity or Commonwealth authority in respect of a financial year.

The Bill amends section 97A so that the number of provisional medical expense payment requests made by, or in relation to, employees of the Entity or authority in each previous financial year and the amount of provisional medical expense payments paid to such employees are also factors included in the premium calculation.[165]

Key issues—not complete provisional liability

According to the Hanks Report:

Many Australian workers compensation schemes have introduced mechanisms that facilitate early intervention through early access to compensation and encourage timely decision making. Those mechanisms include commencement of provisional compensation payments if the decision-making time period is exceeded, or general provisional payment of income replacement and medical expenses.

Systems of provisional liability make compensation claimed for income maintenance, and in some jurisdictions for medical expenses, available to an injured employee before a claim is determined (or even lodged).[166]

It was the view of the Hanks Report that in order to properly support all aspects of early intervention, a provisional liability model should provide access to compensation for medical expenses as well as compensation for income maintenance. To that end access to a maximum of 12 weeks of incapacity payments and medical costs of up to $3,000 was recommended.[167] The Bill acts on only one part of that recommendation.

Schedule 5—medical expenses

Commencement

Schedule 5 to the Bill contains two parts. Part 1 and item 16 in Part 2 of Schedule 5 commence on a single day to be fixed by Proclamation, or 12 months after Royal Assent, whichever comes first. Item 15 in Part 2 commences on the day after Royal Assent.

Part II of the SRC Act provides for compensation to be paid in respect of:

•       injuries under section 14

•       loss of or damage to property used by an employee under section 15 and

•       medical expenses under section 16.

Relevant to the amendments in Schedule 5 to the Bill, section 16 of the SRC Act broadly provides that where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, an amount that Comcare determines is appropriate to that medical treatment. To that end, the term medical treatment is defined in subsection 4(1) of the SRC Act.

Guide to Schedule 5

The amendments in Schedule 5 to the Bill:

·    introduce a range of new definitions and amend the existing definition of medical treatment so that medical treatment must be provided by a registered professional for the purposes of the SRC Act

·    set out the limits to the liability for the cost of medical treatment and

·    empower Comcare to make a medical examination rates determination which will set out types of medical examinations and the rate applicable in respect of each of them.

Meaning of medical treatment

The Bill makes significant changes to the meaning of the term medical treatment to include amongst other things:

•       therapeutic treatment provided by, or under the supervision of, a registered health practitioner or an accredited healthcare practitioner

•       the provision of a medicine (other than a schedule 8 medicine)[168] that is prescribed by a registered health practitioner (schedule 8 drugs are drugs of addiction)

•       the provision of a schedule 8 medicine by a designated medical practitioner

•       the provision of a schedule 8 medicine by a legally qualified medical practitioner in a designated medical clinic

•       the provision of a medicine that an employee is directed to take or use by a legally qualified medical practitioner or legally qualified dentist; and which is covered by the definition of registered goods in the Therapeutic Goods Act 1989.[169]

The Bill inserts into subsection 4(1) of the SRC Act a list of those health professions that will satisfy the definition of registered health practitioner.[170] Importantly, in order to satisfy the definition, a person must be registered under a Health Practitioner Regulation National Law. A similar requirement is imposed in the definitions of registered nurse and registered pharmacist respectively. The effect of the amendment is to exclude:

•       masseurs who, according to the Hanks Report ‘do not have to be registered in order to practise in Australia and do not have a National Board setting standards that must be met’[171] and

•       counsellors (as opposed to psychologists) who may also be unregulated.[172]

Liability for the cost of medical treatment

The Bill provides for Comcare to make legislative instruments to formulate Clinical Framework Principles and to prescribe a table of medical treatments.[173] The medical services table is to set out the items of medical treatment, the rate applicable in respect of each item and the rules for interpretation of the table.[174] In addition, the amendments in Schedule 5 to the Bill specify those matters to which Comcare must have regard in determining whether it was reasonable for the employee to obtain medical treatment. One such matter is any Clinical Framework Principles.[175]

Those matters to which Comcare must have regard in determining the amount of compensation to be paid in respect of medical treatment are set out in the Bill.[176] These include the nature of the medical treatment and the necessity for the medical treatment in the circumstances. Importantly, the amount of compensation payable for a medical treatment must not exceed the rate set out in the medical services table, if the relevant treatment is covered by an item of the medical services table.[177]

Designated medical practitioner

The Bill provides that a claim for compensation may:

•       designate a legally qualified medical practitioner to be the employee’s designated medical practitioner for the purposes of the Act or

•       designate a medical clinic as the employee’s designated medical clinic.[178]

In particular, the provision of a schedule 8 medicine will not satisfy the definition of medical treatment unless the medicine is prescribed by a designated medical practitioner or a medical practitioner who practises in a designated medical clinic.

The rationale for having a designated medical practitioner is set out in the Hanks Report. Essentially it is a response to concerns that:

Prescription medications, specifically drugs of addiction known as Schedule 8, pose a risk to injured workers and compensation schemes as the 3rd party payers. There should therefore be maximum controls and protections for both Comcare and the injured workers. As the direct funder to pharmacies of these medications Comcare is exposed to risks, such as doctor shopping, on-selling or abuse and potential fatalities of injured workers. Legislative boundaries around the funding of Schedule 8 drugs and Schedule 4 benzodiazepines would reduce risk to both the injured worker and Comcare.[179]

The restriction on compensation for Schedule 8 medications to those that are prescribed by the employee’s designated medical practitioner is a response to this concern and is consistent with a Hanks Report recommendation.[180]

Further:

•       where an employee does not have a designated medical practitioner or a designated medical clinic, the employee may give written notice to the relevant authority making the designation

•       where an employee has made either designation, the employee may give a written notice to the relevant authority revoking the previous designation and designating either another legally qualified medical practitioner to be the employee’s designated medical practitioner or designating a medical clinic to be the employee’s designated medical clinic.[181]

According to the ACTU:

The Bill seeks to establish a regime whereby for each different practitioner who may become involved in the case, the injured worker must revoke a prior designation and designate a new practitioner or clinic. The nomination must be made before the prescription of any medicine. This proposal is grossly unfair because in many cases, the prescription of medication is made by a number of treatment providers such as a General Practitioner and a Specialist, both of whom may deal with a separate and discrete part of the injury. However, the Bill suggests that the injured worker would only be able to get compensation for certain medicines prescribed by one designated practitioner.

The Bill unfairly limits the injured worker’s freedom to seek treatment from medical practitioners of their choice and significantly increases the bureaucratic costs. [182]

Imposition of cost cap

At present, where an employee has made a claim for compensation, the relevant authority may require the employee to undergo an examination by a legally qualified medical practitioner nominated by the relevant authority. In that case, section 57 of the SRC Act provides that the cost of the examination is to be paid by the relevant authority.[183] There is no limitation on the amount that is to be paid.

The amendments in Schedule 5 to the Bill impose limits on the amounts which are payable in this circumstance.

The Bill empowers Comcare to make, by legislative instrument, a Medical Examination Rates Determination that sets out types of medical examinations and the rate applicable in respect of each of them.[184]

Consistent with that power, the Bill applies so that if the cost of an examination which is conducted in accordance with section 57 exceeds the rate applicable to the examination under the Medical Examination Rates Determination then the cost of conducting the examination is taken to be equal to that rate.[185]

The Bill authorises Comcare to provide information relating to medical treatment obtained in relation to an injury suffered by an employee to a professional disciplinary authority if Comcare is satisfied that the information will enable or assist the professional disciplinary authority to perform or exercise any of the functions or powers of the authority.[186]

Key issue—accessing appropriate care

John Holland considers this amendment will:

… negatively impact on our employees’ ability to access appropriate care in a timely manner. Mandating schedule fees for independent medical examination may also restrict the number of bookings doctors are willing to take which may also delay decisions regarding claimed entitlements or treatment options … We strongly suggest that any schedule of fees that is developed, be developed in a manner providing for flexibility to account for changed in location; urgency; particular; and peculiar circumstances. Our people are often working in remote and rural setting where choice of treatment is limited and we do not support legislation that may result in them needing to seek treatment in alternate locations purely due to cost; or situation where our employees themselves will be required to contribute to their own medical treatment.[187]

Whilst the Safety Rehabilitation and Compensation Licensees Association is satisfied that these changes are needed to ‘address excessive fees being charged by some service providers’,[188] Slater and Gordon expressed its concern that:

By imposing limits on the payment of medical treatment expenses, the worker and their family will be left to pay the shortfall. This will lead to workers either deferring treatment, which will ultimately lead to their injuries becoming entrenched and impacting on their capacity for work, or being forced into debt to pay the escalating costs.[189]

And further:

Comcare, not the medical profession, will guide decision making about medical treatment without reference to the individual condition of the worker. Both the treating doctor and the injured worker are bound to accept Comcare’s treatment decisions. Should the treating doctor recommend another form of treatment, the injured worker will need to bear those costs.[190]

Human Rights Committee comments

According to the Human Rights Committee the measures in Schedule 5 to the Bill:

… will limit the existing discretion afforded to Comcare and licensees to provide compensation for the cost of medical treatment and as a result this may reduce the extent to which an employee is fully compensated for medical expenses incurred as a result of a workplace injury. The measures may also limit patient choice with respect to medical practitioners where the medical practitioner is unwilling to charge for services at the rate prescribed under regulations established by provisions in these measures.[191]

That being the case, the Human Rights Committee was satisfied that the measures engage and limit the right to social security and the right to health.

In considering whether the measures are a proportionate means of achieving a legitimate objective, the Human Rights Committee noted that, amongst other things, they give Comcare broad discretion to set scheduled fees for specific medical treatments. The Committee expressed its concerns by stating:

There is no requirement to have regard to rates endorsed by the Australian Medical Association or even to consult the Australian Medical Association. Accordingly, it may be possible that scheduled fees may be set at such a low level that the most appropriately trained and qualified medical practitioners are unwilling to provide services at that rate. Moreover, the amendments allow Comcare not only to consider the Clinic Framework Principles (which will be developed under regulations) when determining whether a medical treatment is reasonable but to any other matter that Comcare considers relevant. As a result, matters that are not strictly medical in nature may be considered.[192]

Schedule 6—household services and attendant care services

Commencement

The provisions of Part 1 of Schedule 6 to the Bill commence on the day after Royal Assent. Part 2 commences on a day to be fixed by Proclamation or 12 months after Royal Assent, whichever comes first.

At present if as a result of an injury to an employee, the employee obtains household services or attendant care services that he, or she, reasonably requires, Comcare is liable to pay compensation in respect of those services up to a specified amount.[193] There are different considerations for determining whether compensation is payable for either household services or attendant care services. However, the amount of compensation payable for both household and attendant care services is the same and, other than determining whether services are reasonably required:

•       there is no management or regulation of the provision of those services

•       there is no distinction between services required by severely or catastrophically injured employees and

•       there is no limit on the duration for which compensation for household or attendant care services is payable.

Guide to Schedule 6

The amendments in Schedule 6 to the Bill:

·    specify those persons who can provide attendant care services and household services

·    create two classes of injury—catastrophic and non-catastrophic injuries

·    place a limit on the period for which an employee who has suffered a non-catastrophic injury can be paid for attendant care services and household services and

·    set the limits on the amounts payable for attendant care services and household services in respect of an employee who has suffered a catastrophic injury.

Who can provide services

Division 5 of Part II of the SRC Act sets out the conditions under which an injured employee obtains household services and the amounts that Comcare is liable to pay for those services.

The Bill provides that regulations:[194]

•       may empower Comcare to accredit persons as accredited providers of attendant care services and to revoke that accreditation[195]

•       may empower an accredited provider of attendant care services to register individuals as registered providers of attendant care services and to revoke that registration[196]

•       may empower a relevant authority to approve a person as an approved provider of attendant care services and to revoke that approval.[197]

Non-catastrophic injuries

The amendments in Schedule 6 to the Bill operate so as to distinguish between those who have suffered a catastrophic injury and those who have not in the provision of household services.

Existing section 29 of the SRC Act is amended so that it refers to compensation for household services and attendant care services obtained as a result of a non-catastrophic injury. Where an employee obtains attendant care services as a result of an injury and the attendant care services are reasonably required by the employee, the relevant authority is liable to pay the lesser of $442.20 per week or the amount per week paid by the employee for the services.[198]

This is an increase from $200.00 per week.

In addition, the Bill limits, to a period of three years, the relevant authority’s liability to pay compensation for household services and attendant care services in respect of a non-catastrophic injury.[199]

Transitional provisions

If the injury was sustained at or after the commencement of Part 2 of Schedule 6, compensation is payable for three years from the date of injury.

However, if the employee is hospitalised as an inpatient for treatment in respect of the injury and is discharged after the 30 month period beginning on the day of the injury, compensation is payable during the six month period beginning on the day the employee is discharged from hospital.

If the injury was sustained before the commencement of Part 2 of Schedule 6, compensation is payable for three years beginning at the commencement of Part 2 of Schedule 6.

However, if the employee is hospitalised as an inpatient for treatment in respect of the injury and is discharged after the 30 month period beginning at the commencement of Part 2 of Schedule 6, compensation is payable during the six month period beginning on the day the employee is discharged from hospital.

Key issue—need for a safety net

The Law Council of Australia has recommended that a safety-net be included in the Bill for those who are not catastrophically injured with the effect that, following the expiry of three years, where they can demonstrate ’special circumstances’, their entitlements will continue.[200]

Catastrophic injury

The Bill sets out the conditions under which compensation for household services and attendant care services can be paid in respect of catastrophic injury.[201] However, the Bill does not contain a definition of catastrophic injury. Instead, this term will be defined in the regulations.[202] The Hanks Report recommended that a definition of severe injury be inserted into the SRC Act.[203] Before deciding on the employee’s need for household services or attendant care services, the relevant authority may require an injured employee to undergo an assessment by a registered occupational therapist nominated by the relevant authority or a registered physiotherapist nominated by the relevant authority.[204]

If an employee obtains household services as a result of a catastrophic injury, those services are reasonably required by the employee and the employee has undergone an assessment relating to the employee’s need, the relevant authority is liable to pay compensation of such amount per week as the relevant authority considers reasonable in the circumstances.[205] The Bill contains a list of the things that must be taken into account when determining whether household services are reasonably required. This includes but is not limited to:

•       the number of persons living with the employee as members of his or her household, their ages and their need for household services and

•       the extent to which the persons living with the employee as members of his or her household, or any other members of the employee’s family, might reasonably be expected to provide household services for themselves and for the employee after the catastrophic injury.[206]

This is consistent with the view of the Federal Court in Lander v Comcare in which the Court considered the extent to which members of an employee’s family might reasonably be expected to provide household services for themselves and the employee.[207] In particular, the Federal Court noted that:

… the household services envisaged are those provided by the household members themselves. They are not services for which those members make provision for the injured employee through the agency of third party providers.[208]

The relevant authority is liable to pay compensation for attendant care services only if that they are provided by an accredited, registered or approved provider of attendant care services or an individual who is authorised by the relevant authority (in special circumstances) and the attendant care services are reasonably required.[209] The amount payable is what the relevant authority considers to be reasonable in the circumstances.

Schedule 7—absences from Australia

Commencement

The provisions in Schedule 7 to the Bill commence immediately after the commencement of the provisions in Part 1 of Schedule 15 to the Bill (which deals with the right to suspend rights to compensation in certain circumstances).

Extended absence from Australia

At present there is no limitation on payment of compensation to a person outside Australia. A person who is receiving compensation payments for incapacity is required under section 120 of the SRC Act to inform the relevant authority of any overseas travel. However, the person remains eligible to receive compensation during their absence.

Guide to Schedule 7

The amendments in Schedule 7 to the Bill:

·    suspend compensation when an injured employee is absent from Australia for private purposes for a period of more than six weeks

·    imposes stronger notification requirements on an injured employee in respect of his, or her, date of departure from and proposed date of return to Australia and

·    creates an offence of strict liability in the event that the employee fails to give the relevant authority the required notification.

The Hanks Report noted that ‘the Social Security Act 1991[210] imposes quite stringent controls on payment of pensions (such as age pension and disability support pension) and allowances (such as Newstart allowance and sickness allowance) outside Australia’.[211] These restrictions are in place because the agency that administers the Social Security Act is not in a position to monitor compliance with the conditions of eligibility while a recipient is outside Australia. The Hanks Report considered that ‘similar considerations apply to incapacity payments under the SRC Act’.[212] To that end, it was recommended that the SRC Act should be amended so that entitlement to weekly compensation is suspended during any period of more than 60 days when an employee is absent from Australia—subject to some exceptions.[213]

The Bill reflects this recommendation. However, the period of absence allowed is 42, rather than 60, days.

The basic rule is that if an employee leaves Australia and is absent for private purposes for a period of more than six weeks beginning on the date of departure, the employee’s compensation rights are suspended during a specified period.[214]

The period begins at the end of the first six weeks after the date of departure. However, if the employee was in Australia for a period of less than six weeks immediately prior to leaving Australia then the period begins at the time when the employee leaves Australia. A later time may be approved by the relevant authority.

The period ends when the employee returns to Australia or when the employee’s absence for private purposes becomes an absence for work purposes, whichever is earlier.

An exception arises where the employee returns to Australia for a period of less than six weeks and, when the employee began to be absent from Australia at the end of that period, that absence was for work purposes.[215] An employee is absent from Australia for work purposes if, and only if, the employee is in suitable employment and               the suitable employment is the sole or dominant purpose of that absence from Australia.[216] An employee is absent from Australia for private purposes if the absence is not for work purposes.[217]

Notice of departure from Australia

Existing section 120 of the SRC Act requires a person to whom payments of compensation are being made, and have been made for a period of three months or longer, to give the relevant authority a notice in writing stating an intention to leave Australia and specifying the day on which the person proposes to leave. Where a person has not given notice in advance of their departure from Australia he, or she, must notify the relevant authority within seven days of their departure.

The Bill amends this to impose the requirement to notify of a departure from Australia immediately upon the receipt of payments of compensation.[218] In addition, the written advice to the relevant authority must include the date on which the employee expects to return to Australia.

Creation of offences

The amendments in Schedule 7 to the Bill operate so that:[219]

•       if the employee gave the required notice but left Australia more than seven days after the day specified in the notice then he, or she, must notify the relevant authority of the correct date of departure within seven days after leaving Australia[220]

•       if the notice given did not specify a return date, or the person gave notice but returned to Australia on a day that was different from the return day that was specified, the person must notify the relevant authority of the correct date of return within seven days after returning to Australia.[221]

A person commits an offence of strict liability if they are required to give the relevant authority information about an overseas trip and they fail to give the information in accordance with the legislative requirements.[222] The maximum penalty for the offence is ten penalty units.[223] It should be noted that whilst the imposition of strict liability means that a fault element does not need to be satisfied, the offence will not criminalise honest errors and a person cannot be held liable if he, or she, had an honest and reasonable belief that they were complying with relevant obligations.

Scrutiny of Bills Committee

The Scrutiny of Bills Committee drew attention to the creation of the strict liability offence in its report on the Bill. Of concern to the Committee was the absence of a justification for the application of strict liability to the offence. That being the case, the Committee sought the Minister’s advice as to the rationale for the proposed approach.[224]

The response to the Scrutiny of Bills Committee relies on the need for ‘employees to be in Australia in order to receive rehabilitation and medical services and to comply with the obligations under the scheme’.[225] It justifies the strict liability offence provision on the grounds that:

Without a rigorous notification system, relevant authorities would not be aware of when an employee who is receiving weekly incapacity payments leaves Australia. Such an employee would then be able to continue to receive weekly incapacity payments despite no longer being entitled to the payments. The proposed new notice requirements are specific and do not contain uncertainty as to the operation or what actions are necessary to take to satisfy the requirements. In addition, proposed subsection 120(9) provides that breach of the notice requirements will not be a strict liability offence where the employee has a reasonable excuse. This prevents an unfairly harsh result on an employee who was genuinely unable to comply with the notice requirements.[226]

Key issue—visa holders

The ACTU highlighted the difficulties faced by workers holding 457 and 417 visas which arise from the amendments in Schedule 7. It says that many:

… are forced to return to their country if they no longer have employment in Australia. This leads to a catch-22 situation in instances where a migrant worker is injured at work, in that they will be forced to return to their home country once their employment ceases, and thereby would be ineligible for workers’ compensation.

In circumstances where a worker is totally unfit for work as a result of a compensable work related injury, it should not matter whether the worker lives in Australia or elsewhere. A worker whose family support network is overseas and [will] assist in the management of their injury, should not be penalised for an extended stay outside Australia.[227]

It should be noted that a relevant authority may approve certain treatments which are obtained by an employee outside Australia.[228]

Schedule 8—accrual of leave while receiving compensation

Commencement

The amendments in Schedule 8 to the Bill commence on the later of the start of the day after Royal Assent and the commencement of item 5 of Schedule 1 to the Fair Work Amendment Act 2015.[229]

The Bill amends the SRC Act[230] to ‘provide that an employee is not entitled to take or accrue any leave of absence as provided for by the National Employment Standards while on compensation leave’.[231] The Explanatory Memorandum to the Bill indicates that the amendment is consistent with proposed amendments to section 130 of the Fair Work Act 2009.[232]

According to the Australian Industry Group:

… the insertion of section 116(1A) creates unnecessary confusion. This will be exacerbated once the amendments to the Fair Work Act are in place, with employers and employees having to refer to two pieces of legislation in order to understand that leave is not to accrue, and cannot be taken. It would be much clearer if section 116 was repealed altogether, effective on the date of Royal Assent.[233]

Schedule 9—calculation of compensation

Commencement

The amendments in Schedule 9 to the Bill commence on a day to be fixed by Proclamation or 12 months after Royal Assent, whichever comes first.

Guide to Schedule 9

The amendments in Schedule 9 to the Bill relate to how the amount of weekly compensation payable to an injured employee is calculated. The amendments bring about a profound change in that calculation, which will have the effect of reducing the amount paid to an injured employee over the life of a claim. For that reason, the entire process of calculating a rate of compensation is set out below in order to demonstrate the points of difference between the current method of calculation and the method which is proposed by the Bill. The Bill:

·    sets out a new formula which is based on average weekly remuneration rather than normal weekly earnings

·    allows for inclusion of eligible allowances and overtime—but only for the first 104 weeks of incapacity

·    allows for the amount of compensation to be reduced at specified times known as ‘step downs’

·    allows for the deduction of applicable earnings or deemed earnings

·    caps the amount payable to 150% of Average Weekly Ordinary Time Earnings of Full-time Adults in certain circumstances and

·    sets out the manner in which existing recipients of weekly compensation will be transitioned to the new lower rates.

How to calculate weekly payments

Step 1: consider the formula

For each week during which the employee is incapacitated for work as a result of the injury, an amount of compensation is worked out using the formula:[234]

This formula differs from the current formula for calculating the rate of weekly compensation. It changes the meaning of adjustment percentage (see step 6 below) and is based on the employee’s average weekly remuneration rather than his or her normal weekly earnings.

Step 2: work out total remuneration of the employee

The amounts which are included in calculating an employee’s total remuneration for the purposes of that formula are:[235]

•       salary or wages attributable to the employee’s employment with the Commonwealth or a licensed corporation

•       piece rates attributable to the employee’s employment with the Commonwealth or a licensed corporation

•       commissions attributable to the employee’s employment with the Commonwealth or a licensed corporation

•       the value of the fringe benefits that are attributable to the employee’s employment with the Commonwealth or a licensed corporation[236]

•       reportable employer superannuation contributions attributable to the employee’s employment with the Commonwealth or a licensed corporation[237]

•       for calculating compensation for the first 104 weeks during which the employee is incapacitated:

–      eligible allowances attributable to the employee’s employment with the Commonwealth or a licensed corporation and

–      overtime, provided that it is likely that the employee would have worked overtime in connection with the employee’s employment in the event that the injury had not been sustained.

Eligible allowances include but are not limited to allowances payable in respect of the employee’s specific qualifications or duties, a higher duties allowance, a shift allowance or an allowance prescribed by the regulations.[238] Location allowances are payable in some circumstances. However, if an employee’s remuneration includes a location allowance on the basis that the employee’s primary place of residence was at a particular location; and the employee’s current primary place of residence is not at that location then the amount of the average weekly remuneration of the employee before the injury is to be calculated as if the total remuneration of the employee did not include the location allowance.[239]

The existing formula for calculating weekly compensation which does not refer to location allowance and does not specify those allowances which are eligible allowances. Whilst this will not have much effect on public service employees it is likely to provide a significant point of difference for employees of self-insurers such as Asciano Services Pty Ltd which provides port services and John Holland Pty Ltd which provides engineering and contracting services in sometimes remote locations.

Step 3: work out the relevant period

The relevant period is the latest period of two weeks before the date of the injury during which the employee was continuously employed by the Commonwealth or a licensed corporation.[240]

In the alternative, the relevant authority may determine another period provided that the period is a fair representation of the remuneration that was attributable to the employee’s employment before the date of the injury concerned.[241] In that case the period must be a single week or two or more weeks (whether consecutive or otherwise).[242]

Step 4: calculate average weekly remuneration

The basis for the compensation payable will be average weekly remuneration which is calculated in relation to the relevant period using the formula:[243]

Step 5: apply the cap

If the amount of the average weekly remuneration of an employee before an injury would exceed the amount per week that the employee would receive if he, or she, were not incapacitated for work, the amount so calculated is to be reduced by the amount of the excess.[244]

Step 6: apply the adjustment percentage (also known as step downs)

The step downs apply as follows:

•       weeks 1–13: an employee will be entitled to receive weekly incapacity payments worked out using the formula in step 1[245]

•       weeks 14–27: the rate of compensation payable is 90% of average weekly remuneration less the employee’s applicable earnings[246]

•       weeks 28–52: the rate of compensation payable must not exceed 80% of the employee’s average weekly remuneration before the injury[247]

•       weeks 53 onwards: the rate of compensation payable must not exceed 70% of the employee’s average weekly remuneration before the injury.[248]

The step down periods are calculated based on the number of weeks during which the employee is incapacitated for work due to injury.[249]

This is a new feature. The Hanks Report recommended that weekly compensation be subject to step down provisions which would operate so that weekly compensation would be paid at 80% of the employee’s normal weekly earnings after 26 weeks of incapacity.[250] The Bill goes further than the recommendation by adding an additional step down from week 53 to 70% of the employee’s average weekly remuneration before the injury.

Step 7: deduct any applicable earnings

In determining whether there are any applicable earnings Comcare is to have regard to:[251]

(a)              where the employee is in employment (including self-employment)—the amount per week that the employee is earning in that employment

(b)              where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment. It is important to note that under the amended definition of suitable employment that may be earnings from self-employment. In that case it is unclear how it is proposed that the amount of such earnings would be calculated

(c)              where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(d)              where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee fulfil the employee’s responsibilities under a workplace rehabilitation plan and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;

(e)              where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;

(f)              where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to fulfil the employee’s responsibilities under a workplace rehabilitation program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances and

(g)              any other matter that Comcare considers relevant.

Deduction of applicable earnings and sanctions

The deduction of applicable earnings in the calculation of weekly compensation is not new. However, it is now more closely tied to the employer’s obligation to take all reasonably practicable steps to provide the employee with suitable employment or assist the employee to find such employment[252] and the employee’s duty to undertake the specified activities that are set out in the workplace rehabilitation plan which is directed to towards returning the employee to suitable employment.[253] The effect is that the deduction of applicable earnings may be akin to a sanction. (See further details of the sanctions regime under Schedule 15 below.) The sanctions regime operates so that the following are breaches of an obligation of mutuality:

•       a failure to accept an offer of suitable employment without a reasonable excuse where the employee has the potential[254] to be in suitable employment[255]

•       a failure to engage, or to continue to engage, in suitable employment where an employee who has the potential to be in suitable employment, has accepted an offer of suitable employment, but has failed to engage, or to continue to engage, in that employment, without reasonable excuse[256]

•       a failure to seek suitable employment, without reasonable excuse, where an employee has the potential to be in suitable employment.[257]             

According to the Explanatory Memorandum:

A breach of this kind cannot be remedied by the employee under the Act as it is contingent, in some cases, on an offer of employment being made by a third party which may lapse or be withdrawn by the potential employer if the offer is refused by the employee…

[That being the case] … the employee’s weekly incapacity payments will be reduced by the amount that the employee is able to earn in suitable employment in accordance with subsection 19(4) of the Act. In the case of a breach that the employee has been directed to remedy, the employee’s rights to compensation … are suspended until the breach is remedied.[258]

Step 8: check for exceptions

Where an employee has been incapacitated for work as a result of an injury for more than 13 weeks (whether consecutive or not):

•       the amount payable to the injured employee is capped at 150% of Average Weekly Ordinary Time Earnings of Full-time Adults[259] and

•       a minimum earnings protection operates to deem that the minimum earnings of the employee are $446.84. If the minimum earnings of the employee exceed 90% of the employee’s average weekly remuneration before the injury the reduction in compensation payable due to the step downs to 80% and 70% do not apply.[260]

Example: Barry Brown

Barry Brown is an EL2 in a government department which is covered by the Comcare scheme. He has been in this position for some time and is paid an annual salary of $136,000.

Barry is injured at work when he is clearing a paper jam in a laser printer. The printer falls off the shelf where it is normally located and lands on Barry’s foot. As a result Barry will require a number of surgeries to his foot and lengthy rehabilitation.

At the time of the injury, Barry’s average weekly earnings are $2,600. His weekly compensation is calculated according to the steps set out above. For the first 13 weeks of incapacity he is paid weekly compensation of $2,600.

Barry is able to come to work intermittently between surgeries and rehabilitation. Nevertheless his incapacity for work due to his injury exceeds 13 weeks. At that point the first step down set out in step 6 above should apply so that Barry’s weekly compensation is calculated at 90% of average weekly remuneration—that is, 90% of $2,600 which is $2,340.

However, in Barry’s case, the exception in step 8 applies—that is, the amount payable to him is capped at 150% of Average Weekly Ordinary Time Earnings of Full-time Adults (AWOTE).

Reference to the Australian Bureau of Statistics identifies the AWOTE as $1,484.50 with effect from May 2015.[261] Applying the cap in step 8 means that Barry is entitled to 150% of $1,484.50, being $2,226.75. The effect of the cap is that Barry will be paid the lower amount in weekly compensation—a reduction of $113.25 per week.

The effect of the formula is that those employees who are on salaries in excess of 150% AWOTE will have the amount of weekly compensation payable to them capped after having received 13 weeks of incapacity payments.

Key issue—impact of transitional provisions

The transitional provisions run on the basis that the term post-commencement week is a week that began after the commencement of the amendments in Schedule 9.[262] They operate so that every injured employee who is in receipt of weekly compensation at the commencement of the amendments in Schedule 9 to the Bill will transition to lower payments within 13 weeks of that date. For an employee who has been incapacitated for work as a result of an injury for 46 weeks or more at that time, the impact will be immediate. For each post-commencement week for which the employee is incapacitated for work, the weekly incapacity payments are worked out as if the adjustment percentage were 90% but the transitional provisions operate to cap the reduced weekly payment amount at 70% of the employee’s average weekly remuneration before the injury.[263]

Key issue—there are no savings provisions

The effect of the transitional provisions is that those employees who have been in receipt of weekly compensation for 46 weeks or more at the time of the commencement of the amendments in Schedule 9 are likely to have the amount of weekly compensation significantly reduced. Importantly, the Bill does not contain any mechanism to ‘save’ the rate payable in relation to an existing claim.

According to the AMWU, ‘those who are unable to return to work following an injury/illness are those that are most in need. The proposition that workers deliberately stay on long term benefits for the financial incentives does not fit with research or people’s experience’.[264]

Aligning the cut-off provisions to the qualifying age for age pension

Under existing section 23, weekly compensation is not payable to an employee who has reached 65. In addition, where an employee who has reached 63 suffers an injury, weekly compensation is payable in respect of the injury for a maximum of 104 weeks (whether consecutive or not) during which the employee is incapacitated.[265]

The Bill amends section 23 of the SRC Act to align these cut offs to the qualifying age for age pension. To be eligible for Age Pension you must be 65 years or older. From 1 July 2017, the qualifying age for Age Pension will increase from 65 years to 65 years and 6 months. The qualifying age will then increase by six months every two years, reaching 67 years by 1 July 2023.[266]

Date of birth

Qualifying age

1 July 1952 to 31 December 1953

65 years and 6 months

1 January 1954 to 30 June 1955

66 years

1 July 1955 to 31 December 1956

66 years and 6 months

From 1 January 1957

67 years

Source: Department of Human Services (DHS), ‘Age requirements for age pension’, DHS website.

There is no age limit to compensation for medical treatment.[267]

Schedule 10—redemption of compensation

Commencement

The amendments in Schedule 10 to the Bill commence on the day after Royal Assent.

The problem with redemption payments

A redemption payment is a payment to an injured employee of a lump sum to finalise ongoing and future entitlements to income maintenance and/or medical expenses. The method of calculating redemption payments, and their scope, differs across jurisdictions.

Broadly speaking, redemption payments have three features. They comprise a lump sum payment based on an estimation of the injured employee’s future needs. They represent a compromise between the positions of the claimant and the insurer or employer, so that neither party gets exactly what they want. They are problematic because they typically involve a full release of the insurer from liability in circumstances where the future course of disability and medical treatment may deviate from that assumed in making the calculation. What might seem to be a reasonable ‘compromise’ today may turn out to be inadequate (or excessive) in just a few years.[268]

One problem arising from making such a lump sum payment in redemption of weekly compensation is that the Australian Taxation Office taxes the amount ‘as if it were income, all in one financial year, substantially reducing the real benefit of this entitlement’.[269]

Redemption payments

At Comcare’s instigation

Under existing section 30 of the SRC Act, where an employee is in receipt of a weekly payment which is less than $50 and Comcare is satisfied that the degree of the employee’s incapacity is unlikely to change, Comcare is to make a determination that its liability to make further payments of weekly compensation to the employee be redeemed by the payment to the employee of a lump sum. Under existing subsection 31(1) of the SRC Act, redemption does not extinguish the liability of a determining authority to resume incapacity payments to the employee if the injury later incapacitates the employee to the extent that the employee cannot engage in suitable employment, and the incapacity is likely to last indefinitely.[270]

The payment is calculated having regard to the formula which is set out in subsection 30(2) of the SRC Act. The Bill increases the trigger for making a determination to redeem future payments to a weekly compensation amount of $208.91.[271]

At the request of a former employee

Section 137 of the SRC Act provides that a relevant authority may, upon written request from a former employee, make a determination that its liability to make further payments of compensation is redeemed by the payment of a lump sum.

Under the Bill a former employee may make such a request when the amount of weekly payments is $208.91 or less.[272] It should be noted that the term former employee means a person who, immediately before 1 December 1988, was receiving weekly payments of compensation under the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) and who had ceased to be an employee within the meaning of that Act before 1 December 1988.[273]

Key issue—redemption is for weekly payments only

According to the Law Council of Australia:

… there would be real financial benefits in allowing redemption, not just of incapacity entitlements, but other entitlements under the SRC Act, which would overcome the problem of erosion of benefits by taxation. It is also noted that the increase to retirement age, discussed earlier in this submission, will result in increasing cost to the scheme. Providing for redemptions at a higher level is likely to reduce the long-tail nature of the Comcare scheme and would therefore offset the cost of such an improvement, while giving increased flexibility both to Comcare and compensated workers.

Although section 30 provides circumstances where Comcare or a licensee can initiate a redemption, it should be possible for an injured worker and/or Comcare to initiate redemption for a higher amount providing that there is no compulsion to accept it. It should also be provided that an injured worker must obtain legal and/or financial advice as to a proposed redemption, and if necessary an independent entity could assess any proposal as to its reasonableness. This would provide an important safety valve, limiting scheme costs, but also would also be welcomed by many injured workers and employers under the existing scheme.[274]

The Hanks Report also considered that there were considerable benefits to both employees and determining authorities where there is flexibility in redemption of compensation benefits:

Rather than receiving small weekly payments over a number of years, an employee can receive one (larger) payment; and that payment (in many cases) severs the employee’s long-term dependence on the determining authority. For the determining authority, making one payment reduces the administrative costs associated with the continuing payment of benefits on a claim.[275]

The Hanks Report’s recommended that the SRC Act be amended so that an employee may redeem her or his compensation payments on a voluntary basis and set out, amongst other things, the basic features, relevant pre-conditions and proposed process for a voluntary redemption scheme.[276] However, the Bill does not contain amendments to reflect those comments.

Schedule 11—legal costs

Commencement

The amendments in Schedule 11 to the Bill commence on a day to be fixed by Proclamation, or 12 months after Royal Assent, whichever comes first.

Reconsideration and review

Part VI of the SRC Act deals with reconsideration and review of determinations. It does not currently contain express provisions limiting the amount to be paid in respect of legal costs.

The Bill empowers Comcare to prescribe a Schedule of Legal Costs by legislative instrument which will set out ‘the maximum amount of costs that may be awarded or reimbursed to a claimant in certain circumstances’.[277]

In addition, it allows the determining authority to reimburse the claimant for the whole or a part of the costs he, or she, has reasonably incurred in connection with a reconsideration determination if the outcome of the reconsideration was to revoke the determination, or to vary it in a way that results in a more favourable outcome for the claimant.[278] However, reimbursement is contingent upon the claimant giving a written undertaking not to make an application to the Administrative Appeals Tribunal (AAT) for review of the decision. The amount of the reimbursement must be consistent with the amount allowable under the Schedule of Legal Costs.

If, after receiving reimbursement, the claimant wishes to apply to the AAT for a review of the reconsideration decision he, or she, must first withdraw the earlier written undertaking in writing and repay the amount of the reimbursement.

Currently, subsections 67(8), 67(8A), 67(8B) and 67(9) of the SRC Act authorise the AAT to order that the costs of a claimant in certain proceedings be paid by the Commonwealth, Comcare or the relevant authority in specified circumstances. The Bill requires that in making such an order the AAT must comply with the Schedule of Legal Costs.[279] In addition, under proposed subsection 67(10B), where proceedings instituted by the claimant are dismissed under section 42B of the Administrative Appeals Tribunal Act 1975[280] the AAT may, on application of the other party to the proceedings, order that the costs of the proceeding incurred by the other party must be paid by the claimant.[281]

Scrutiny of Bills Committee

The Scrutiny of Bills Committee commented on the amendment in its report on the Bill. It noted that the Government considers the measure is justified (as set out in the Explanatory Memorandum to the Bill) because the amendment is designed to control and reduce costs of the Comcare scheme associated with disputes before the AAT and that the objective of the amendments is to provide an incentive and mechanism for parties to resolve disputes at the reconsideration stage and thereby reduce the number of matters reaching the AAT.

Accordingly, the Scrutiny of Bills Committee determined to leave ‘the question of the appropriateness of this measure (which makes reimbursement for costs contingent upon the giving of an undertaking not to seek AAT review) to the consideration of the Senate as a whole’.[282]

Key issue—costs against claimants

According to the ACTU:

In the course of an AAT review, the decision maker (Comcare) is not bound to stand by its initial reasons for decisions if it realises it is wrong. There is no rationale for requiring that the injured worker should bear such great costs as a result of securing a lawful and corrected decision through a three-tier review system.[283]

Schedule 12—permanent impairment

Commencement

The amendments in Schedule 12 to the Bill commence on a day to be fixed by Proclamation, or 12 months after Royal Assent, whichever comes first.

Existing lump sum payments

Existing section 24 of the SRC Act provides for the payment of compensation to an employee in respect of an injury which results in a permanent impairment. The degree of permanent impairment is assessed as a percentage. An amount of compensation for permanent impairment is payable:

•       for most compensable injuries where there is 10 per cent whole person impairment

•       for hearing loss where there is a five per cent whole person impairment (with some exceptions)

•       for the loss of finger, toes, sense of taste or smell no percentage threshold applies.[284]

The maximum amount payable is $80,000.

In addition, section 27 provides for the payment of a lump sum in respect of non-economic loss; for example, pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life.[285] The amount payable is worked out according to the formula in that section. The maximum amount payable is $30,000.[286]

New permanent impairment

The Bill repeals section 27 so that there would no longer a stand-alone payment for non-economic loss.[287]

Under the Bill the maximum amount of compensation for permanent impairment is payable for a permanent impairment of 75% or more.[288] The maximum amount payable is increased from $80,000 to $350,000.[289]

If the percentage of permanent impairment is assessed at 74% or less the amount is calculated by reference to the formula:

The multiplying factor which is referred to in the formula is set out in table form in proposed Schedule 1 to the SRC Act.[290]

Guide to the Assessment of the degree of permanent impairment

The percentage of impairment referred to above is worked out by reference to the Guide to the Assessment of the Degree of Permanent Impairment (the Guide) which is prepared and published by Comcare in accordance with existing subsection 28(1) of the SRC Act.[291]

The Bill requires that:

•       the Guide sets out methods by which the degree of permanent impairment is to be reduced on account of an employee having a pre-existing degree of permanent impairment immediately before the injury[292]

•       the Guide sets the criteria by which a pre-existing degree of permanent impairment is to be determined and the methods by which the pre-existing degree of permanent impairment is to be expressed as a percentage[293] and

•       the permanent impairment arising from the injury to be is to be reduced by 10 per cent where the pre-existing degree of permanent impairment cannot be determined under the provisions of the Guide.[294]

Using the combined values chart in the Guide

The Guide contains, amongst other things, the combined values chart which is used to obtain a single percentage of permanent impairment in the event that an employee suffers from one or more injuries. The rules for using the combined values chart are:

•       where a singIe injury to an employee results in two or more permanent impairments—the degree of permanent impairment is worked out in respect of each permanent impairment and the combined values chart is to be applied to determine a single percentage of permanent impairment[295]

•       where there are two or more injuries to an employee and they are associated injuries which result in permanent impairments they are to be treated as a single injury and the degree of permanent impairment is worked out by applying the combined values chart[296]

What are associated injuries?

The term associated injury refers to two or more injuries to an employee (which are not diseases) which arise out of, or in the course of the same incident or state of affairs. In that case, each of the injuries is an associated injury in relation to each other of those injuries.[297]

For the avoidance of doubt, the Bill provides that if one or more injuries (the primary injuries) to an employee arise out of, or in the course of, a particular incident or state of affairs and any of the primary injuries results in one or more other injuries (the secondary injuries) to the employee, each of the secondary injuries is taken to have arisen out of, or in the course of, that incident, or that state of affairs, as the case may be—that is the secondary injuries will generally be associated injuries.[298] The Bill provides in equivalent terms for injuries which are diseases.[299]

•       where an employee suffers an injury (the primary injury) which results in another injury (the secondary injury) and the secondary injury is a psychological or psychiatric ailment, an aggravation of a psychological or psychiatric ailment, a psychological or psychiatric injury or an aggravation of a psychological or psychiatric injury the secondary injury is to be disregarded in determining the degree of the permanent impairment of the employee.[300]

Key issue—the exclusion of secondary psychological injuries

The effect of these changes is that whilst the maximum amount of compensation payable in relation to permanent impairment is increased significantly, the pool of employees who can access the payment is diminished as is the range of injuries which will be assessed for the purposes of the payment.

Australian Lawyers Alliance decries the exclusion of secondary psychological injuries under the Bill on the grounds that it:

… is a significant reduction of the present rights of the injured.

Often it is the most severely injured workers that require this element of redress the most. The lack of any meaningful Common Law entitlements under the scheme makes permanent impairment entitlements the only avenue of receiving compensation for permanent functional damage caused to a worker.[301]

Key issue—removal of impairment for non-economic loss

The submission by Slater and Gordon making reference to the loss of access to common law rights in 1988, outlines the nature of further reductions to permanent impairment benefits in this Bill stating:

The Bill eliminates any lump sum payments for permanent impairment and non-economic loss for those suffering from a secondary psychological condition … It is not uncommon for the secondary psychological effect of a condition to be significantly distressing. Overlooking the psychological affects when assessing compensation for permanent impairment devalues psychological illness and takes us back to a time where psychological conditions were considered less important or less real than physical conditions.[302]

Schedule 13—licences

Commencement

The provisions of Schedule 13 to the Bill commence on the later of the day after Royal Assent and immediately after the commencement of Schedule 2 to the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015.

Grant of licences

Part VIII of the SRC Act sets out the terms on which the Commission may grant licences to Commonwealth authorities or eligible corporations.

The Bill amends Part VIII to better set out the scope of those licences as follows:

•       a single employer licence granted to a corporation must authorise the licence holder to accept liability to pay compensation and other amounts under this Act and to manage some or all of the claims made by employees of the licence holder[303]

•       a single employer licence granted to a Commonwealth authority must authorise acceptance of liability or management of claims, or both[304]

•       a group employer licence must authorise acceptance of liability and management of claims by each relevant authority designated for the licence.[305]

These amendments are necessary to clarify the operative effect of the 2014 Bill in the event that it is enacted.

Schedule 14—gradual onset injuries

Commencement

Schedule 14 comprises three parts. Parts 1 and 3 commence on the day after Royal Assent. Part 2 commences on the later of immediately after the commencement the provisions in Part 1 of Schedule 14 to the Bill and immediately after the commencement of Schedule 2 to the Safety, Rehabilitation and Compensation Legislation Amendment Act 2015.

Meaning of gradual onset injury

Under the Bill, a gradual onset injury is:

•       either an injury which is:

–      a disease of gradual development or

–      the result of a disease of gradual development

•       or an injury which:

–                    results in a permanent impairment that is a hearing loss; and

–                    is caused by a gradual process.[306]

The remaining items in Schedule 14 to the Bill set out the rules about who is responsible for compensation in relation to a gradual onset injury where employment by two or more employers has significantly contributed that injury.

Schedule 15—sanctions

Commencement

Schedule 15 comprises two parts. Part 1 commences on the day after Royal Assent. Part 2 commences on a day to be fixed by Proclamation, or 12 months after Royal Assent, whichever comes first.

Guide to Schedule 15

The amendments in Schedule 15 to the Bill identify key requirements of the SRC Act as ‘obligations of mutuality’.

·    Part 1 of Schedule 15 inserts a right to suspend payments of compensation in the event that the employee does not comply with a requirement for the purposes of a common law claim against a third party

·    Part 2 of Schedule 15

–    requires that a diagnosis of psychological injury is confirmed by a specialised practitioner after an initial period of 12 weeks

–    inserts express obligations of mutuality and

–    sets out the three level sanctions regime which operates in the event of a breach of those obligations.

Suspending rights to compensation

What payments are affected by a suspension?

Suspension of rights to compensation may affect the following payments:

·    payments of weekly benefits under section 19

·    compensation for injuries resulting in incapacity where the employee is in receipt of a superannuation pension under section 20

·    compensation for injuries resulting in incapacity where the employee is in receipt of a lump sum benefit under section 21

·    compensation for injuries resulting in incapacity if the employee is in receipt of a superannuation pension and a lump sum benefit under section 21A

·    compensation where an employee is maintained in a hospital under section 22 or

·    recurrent payments after a lump sum under section 31.

Obligations of mutuality—common law claims

Existing section 50 of the SRC Act relates to circumstances in which compensation is paid to an employee under the Act (or to his, or her, dependents in the case of death) and the injury (or death) occurred in circumstances that give rise to a legal liability in a third person to pay damages in respect of the injury or death. Where the employee (or the dependants) fails to make a claim against the third person—or having made a claim fails to prosecute it—then Comcare may make a fresh claim or take over an existing one.

In that case, Comcare is authorised to take whatever steps are appropriate to bring the claim to a conclusion and the employee (or dependant) must sign any document relevant to the claim that Comcare requires the employee (or dependant) to sign. In addition, if Comcare makes a claim, or takes over the conduct of a claim, the employee or dependant must comply with any reasonable requirement of Comcare for the purposes of the claim.[307]

Where a common law claim against a third party has been made, or the conduct of a claim is taken over by Comcare under section 50 of the SRC Act, an employee or dependant must comply with the requirements set out above. If he, or she, fails to do so, then the right to compensation in respect of the injury, loss, damage or death to which the claim relates is suspended until such time as the requirement are met.[308] This amendment will have the equivalent effect to existing paragraph 50(5)(b) of the SRC Act, which is repealed by the Bill.

If a right to compensation is suspended, compensation is not payable in respect of the period of the suspension.[309] However, the suspension does not operate in respect of the employee’s right to compensation for the cost of medical treatment.[310]

Medical certificate from a mental health practitioner

‘At present, compensation for psychological injuries can be paid on the basis of a general practitioner’s report and can be paid for significant periods of time without any confirmation of that diagnosis by a specialised practitioner.’[311]

Where an employee makes a claim for compensation for an injury that is a psychological or psychiatric ailment, an aggravation of a psychological or psychiatric ailment, a psychological or psychiatric injury or an aggravation of a psychological or psychiatric injury, the Bill requires that the claim be accompanied by a certificate by a mental health practitioner.[312] In the absence of the relevant medical certificate the employee must, within 12 weeks of making the claim, undergo an examination by a mental health practitioner and provide the relevant authority with a certificate by the mental health practitioner.

If an employee refuses or fails, without reasonable excuse, to comply with this obligation, payments of compensation in relation to the injury are suspended as well as any rights to institute or continue any proceedings under the SRC Act.[313] (See the box above for the payments which are affected by suspension.) Those rights continue to be suspended until the employee undergoes the required examination and provides the relevant medical certificate.

The Explanatory Memorandum does not provide an example of how this provision would operate if an employee was incapacitated for work by both a physical and psychological injury. However, it would appear that weekly payments of compensation could continue in respect of the physical injury, but that payments in respect of medication or treatment in respect of the psychological injury would be suspended.

Obligations of mutuality

The obligations of mutuality apply to an employee who is in receipt of compensation arising from an incapacity to work because of injury.[314] (See the box above for the payments which are affected by suspension.) The following conduct represents a breach of the obligation:

•       a failure to accept an offer of suitable employment without a reasonable excuse where the employee has the potential[315] to be in suitable employment[316]

•       a failure to engage, or to continue to engage, in suitable employment where an employee who has the potential to be in suitable employment, has accepted an offer of suitable employment, but has failed to engage, or to continue to engage, in that employment, without reasonable excuse[317]

•       a failure to seek suitable employment, without reasonable excuse, where an employee has the potential to be in suitable employment[318]             

•       a refusal or failure, without reasonable excuse, to undergo an examination[319] or an employee’s obstruction of the examination[320]

•       a refusal or failure, without reasonable excuse, to produce a medical certificate to cover an absence from suitable employment, where it is a term or condition of the suitable employment that the employee produce a medical certificate in the event of his, or her, absence[321]

•       a refusal or failure, without reasonable excuse to follow medical treatment advice that is given by a legally qualified medical practitioner or a legally qualified dentist and which is reasonable.[322] It will be a reasonable excuse if              the employee refuses to undergo surgery or refuses to take or use a medicine[323]

•       a refusal or failure, without reasonable excuse, to undergo an assessment of the employee’s need for household services and/or attendant care services, or an employee’s obstruction of the assessment[324]

•       a refusal or failure, without reasonable excuse, to fulfil the employee’s responsibilities under a workplace rehabilitation plan[325]

•       a refusal or failure, without reasonable excuse, to undergo a work readiness assessment[326] or an employee’s obstruction of the work readiness assessment[327]

•       a refusal or failure, without reasonable excuse, to comply with a notice to provide information or a document[328] in relation to a claim made by the employee[329]

•       a refusal or failure, without a reasonable excuse, to comply with a requirement for the purposes of a common law claim against a third party[330]

•       a refusal or failure, without a reasonable excuse, to give a statutory declaration in relation to a claim.[331]

Key issue—not following medical advice

The Australian Lawyers Alliance was particularly concerned that it would be a breach of an obligation not to follow medical advice stating:

This a broad encroachment on the rights of an individual to choose their own treatment course in relation to their health. It circumvents the doctor-patient relationship entirely and grants untenable powers to private licensees and Comcare to ostensibly dictate the medical treatment that should occur.

Furthermore, “medical practitioner” is not appropriated [sic] defined and it is conceivable under the current proposed framework that a medico-legal specialist, who write reports solely for insurance purposes, may make recommendations in relation to the clinical treatment of an injured worker. This is totally inconsistent with current workers’ compensation insurance practice in States and Territories and is unacceptable. The medical history, trust and clinical importance of a longstanding treating doctor-patient relationship can potentially be usurped.[332]

Sanctions regime

The Bill sets out a three stage sanctions regime.

Level 1

Before imposing the level 1 sanctions the relevant authority must determine:

•       that there has been a breach of an obligation of mutuality in the 12 month period ending on the day of that determination[333]

•       that the employee is not already subject to the level 2 sanctions regime or to the cancellation regime in relation to the injury or an associated injury[334]

•       that the employee is not already subject to the level 1 sanctions regime in relation to the injury or an associated injury.[335]

Having done so, the relevant authority must give written notice to the employee advising that he, or she, is subject to the level 1 sanctions regime in relation to the injury or associated injury.[336] Where the breach has not stopped and is not covered by section 29L (see above), the notice must, amongst other things, set out the action that the employee should take in order to stop the breach, set out the nature and extent of the sanction and provide a warning about future sanctions.[337] Until the breach is remedied the employee’s rights to compensation (other than compensation for medical treatment) and the employee’s right to institute proceedings in relation to compensation (other than proceedings in the AAT in relation to the sanctions regime) are suspended.[338]

Level 2

The provisions in relation to the level 2 sanctions regime are expressed in near identical terms and the consequences of a level 2 sanction are equivalent to those of a level 1 sanction.[339] However, once a person has had a level 2 sanction imposed they risk that any future conduct which would also attract a sanction will lead to cancellation of all compensation under the SRC Act.

Cancellation regime

For a third breach or a failure to remedy a second breach the relevant authority must determine that the employee is subject to the cancellation regime in relation to an injury mentioned and each associated injury. The cancellation takes effect no later than the day on which the determination is given.[340] The cancellation applies to the employee’s rights to all compensation under the SRC Act—including rehabilitation.

The only exceptions are:

•       the employee continues to be able to institute or continue proceedings by way of an application to the Administrative Appeals Tribunal for review of a reviewable decision that was made as the result of a reconsideration of a decision under proposed Division 5B of Part II of the SRC Act

•       it does not affect compensation that would arise in the case of the employee’s death.[341]

Key issue—no arrears and the employee may be overpaid

Compensation is not payable in respect of the period of the suspension.[342] Where compensation has been suspended because of a breach, then payment of compensation will resume at the point that the breach is remedied. However, arrears would not be payable in respect of the period of the suspension.

The difficulties with the sanctions regime are exposed by proposed section 29ZC. That section provides for the recovery of overpayments of compensation where a determination to impose a level 1 sanction, level 2 sanction or cancellation comes into force before it was made. It would seem to allow then, for the imposition of a sanction in respect of a period which has passed. The effect is that an injured employee may be advised that a level 1 sanction is imposed for some transgression of which he, or she, was unaware at the time—and that the payments made now comprise a debt.

Key issue—reasonable excuse

The AMWU suggests that:

Considerable discussion and disputes will be centered upon the definition of “reasonable excuse”. It is not uncommon for employer engaged rehabilitation providers to have different perspectives and expectation than treating practitioners. Coupled with the alarming increase in employers and their representatives having little respect for the confidentiality between a treating medical practitioner and their patient, this is likely to be open to significant abuse.[343]

Schedule 16—Defence related claims

The provisions in Schedule 16 to the Bill commence on the day after Royal Assent. The Bill operates so that the amendments made by Schedule 1–15 and 17 to the Bill, do not apply to defence related claims, with some minor exceptions.[344]

Concluding comments

The Bill makes the most fundamental changes to the Comcare scheme since it was first established in 1988. The proposal to make changes to the Comcare scheme comes at a time when many of the states have had to face the same pressures to ensure that their schemes remain viable. The government of South Australia for instance made similar drastic changes to its scheme in 2014. Many of the changes in the Bill reflect the thoughtful and balanced recommendations made in the Hanks Report. However, only some of the Hanks Report recommendations are put into effect. The net result falls short of the rewrite of the SRC Act which the Hanks Report suggested.

Workers’ compensation is a type of accident and injury insurance. In their totality this Bill and the two earlier Bills which amend the SRC Act represent a shift towards a national system which is intended to attract an increasing number of employer corporations as licensees. If this occurs the SRC Act will, in effect, set out the terms and conditions of the ‘insurance policy’ of many more employees from a wider variety of occupations than it currently does. In that case, it would be helpful for all parties to have a plain English statement of their rights and obligations. The amendments to SRC Act do not provide that.

The amendments in the Bill impose significant obligations on injured employees whilst also reducing the amount of compensation payable in respect of their injuries and the range of injuries that are compensable.

The success of some of the amendments will be measured by the manner in which liable employers exercise their new powers. The obligations of mutuality are likely to be a flashpoint between injured employees and liable employers where suspensions are imposed on recalcitrant, but nevertheless injured or unwell, employees. There is no doubt that the Bill will achieve its aim to reduce the costs of the Comcare scheme—but this may be at the cost of the ongoing employment relationship.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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[1].              Parliament of Australia, ‘Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 homepage’, Australian Parliament website.

[2].              Safety, Rehabilitation and Compensation Act 1988.

[3].              Work Health and Safety Act 2011.

[4].              P Pyburne, Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014, Bills digest, 95, 2013–14, Parliamentary Library, Canberra, 2014..

[5].              R Scott, (Minister For Finance and Minister for Multicultural Affairs, Victorian Government), Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, p. 1; Queensland Government, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, 6 May 2015, p. 3,.

[6].              Parliament of Australia, ‘Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Bill 2015 homepage’, Australian Parliament website.

[7].              A Holmes, Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Bill 2015, Bills digest, 96, 2014–15, Parliamentary Library, Canberra, 2015, p. 1.

[8].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report (Hanks Report), report prepared for Department of Education, Employment and Workplace Relations (DEEWR), Canberra, February 2013.

[9].              A Hawke, Safety, Rehabilitation and Compensation Act review: report of the Comcare scheme’s performance, governance and financial framework (Hawke Report), report prepared for DEEWR, Canberra, 2013.

[10].              K Purse, ‘The evolution of workers’ compensation policy in Australia’, Health Sociology Review, 14(1), August 2005, pp. 8–20.

[11].              B Howe, ‘Second reading speech: Commonwealth Employees’ Rehabilitation and Compensation Bill 1988’, House of Representatives, Debates, 27 April 1988, p. 2191.

[12].              Commonwealth Employees’ Rehabilitation and Compensation Act 1988.

[13].              Ibid., section 45.

[14].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report, op. cit., p. 5. The SRC Act also applies to members of the Australian Defence Force who were injured before 1 July 2004 during non-operational service. The Department of Veterans’ Affairs administers those claims on behalf of the Military Rehabilitation and Compensation Commission.

[15].              Safety, Rehabilitation and Compensation Commission (SRCC), ‘Current licensees’, SRCC website, 22 July 2015.

[16].              Safety, Rehabilitation and Compensation Act, sections 89B and 89C (Commission); sections 69 and 70 (Comcare).

[17].              Work Health and Safety Act 2011.

[18].              Comcare, Annual report 2004–2005, Commonwealth of Australia, 2005, p. 2.

[19].              Productivity Commission (PC), National workers’ compensation and occupational health and safety frameworks, Inquiry report, 27, PC, Melbourne, 16 March 2004.

[20].              DEEWR, Report of the review of self-insurance arrangements under the Comcare scheme, The Department, Canberra, January 2009.

[21].              Taylor Fry, Review of self-insurance arrangements under the Comcare scheme: report to Department of Education, Employment and Workplace Relations, Sydney, 15 May 2008.

[22].              A Hawke, Safety, Rehabilitation and Compensation Act review: report of the Comcare scheme’s performance, governance and financial framework, op. cit.

[23].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report, op. cit.

[24].              N Towell, ‘Blitz on public service compo’, The Canberra Times, 30 March 2013, p. 1.

[25].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report, op. cit., p. 23.

[26].              The terms of reference for the inquiry, the submissions to the Education and Employment Committee and the Committee’s report are available on the inquiry homepage.

[27].              Senate Standing Committee on Education and Employment, Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015 [Provisions], The Senate, Canberra, June 2015.

[28].              Labor Senators, Dissenting report, Senate Standing Committee on Education and Employment, Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015 [Provisions], The Senate, Canberra, 2015, p. 65.

[29].              Australian Greens, Dissenting report, Senate Standing Committee on Education and Employment, Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015 [Provisions], The Senate, Canberra, 2015, p. 73.

[30].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 5, 2015, Senate, Canberra, 13 May 2015, pp. 19–25.

[31].              Parliamentary Joint Committee on Human Rights, Twenty-second report of the 44th Parliament, 13 May 2015, pp. 72–104.

[32].              The Statement of Compatibility with Human Rights can be found at pages SCHR1–SCHR58 of the Explanatory Memorandum to the Bill.

[33].              M Thistlethwaite, ‘Second reading speech: Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015’, House of Representatives, Debates, 1 June 2015, p. 5234; R Marles, ‘Second reading speech: Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015’, House of Representatives, Debates, 1 June 2015, p. 5237.

[34].              B O’Connor, ‘Second reading speech: Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015’, House of Representatives, Debates, 1 June 2015, p. 5188.

[35].              Transpacific, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, p. 2.

[36].              Australian airExpress, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, 30 April 2015.

[37].              CWUnion National, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, 8 May 2015, p. 3.

[38].              Australian Lawyers Alliance, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, 27 April 2015, p. 4.

[39].              R Scott, (Minister For Finance and Minister for Multicultural Affairs, Victoria), Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 2.

[40].              Explanatory Memorandum, Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, p. vii.

[41].              Item 17 of Schedule 1 to the Bill.

[42].              Safety, Rehabilitation and Compensation Act, subsection 5A(1).

[43].              Safety, Rehabilitation and Compensation Act, proposed subsection 5A(2).

[44].              Slater and Gordon Lawyers, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, p. 4.

[45].              ACTU, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, p. 3.

[46].              Item 8 of Schedule 1 to the Bill inserts proposed paragraphs 5A(1)(h) and (i) into the Safety, Rehabilitation and Compensation Act.

[47].              Item 7 of Schedule 1 to the Bill inserts proposed paragraphs 5A(1)(d)–(g), which refer to a designated injury, into the Safety, Rehabilitation and Compensation Act.

[48].              Item 15 of Schedule 1 to the Bill inserts proposed section 5C into the Safety, Rehabilitation and Compensation Act to define the term designated injury.

[49].              Item 7 of Schedule 1 to the Bill inserts proposed paragraphs 5A(1)(d)–(g) into the Safety, Rehabilitation and Compensation Act.

[50].              Item 9 of Schedule 1 to the Bill inserts proposed subsection 5A(3) into the Safety, Rehabilitation and Compensation Act.

[51].              Law Council of Australia, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, 12 May 2015, paragraph 19, p. 5.

[52].              Transpacific, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 2.

[53].              Items 10–13 of Schedule 1 to the Bill.

[54].              Safety, Rehabilitation and Compensation Act, proposed paragraph 5B(2)(ba).

[55].              Safety, Rehabilitation and Compensation Act, proposed paragraph 5B(2)(ca).

[56].              Safety, Rehabilitation and Compensation Act, proposed paragraph 5B(2)(da).

[57].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report, op. cit., p. 9.

[58].              Ibid., paragraph 5.64, p. 44.

[59].              Wiegand v Comcare Australia (2002) 72 ALD 795, [2002] FCA 1464.

[60].              Item 13 of Schedule 1 to the Bill repeals paragraph 5B(2)(e) and inserts proposed paragraphs 5B(2)(e) and (f) into the Safety, Rehabilitation and Compensation Act.

[61].              AMWU, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, May 2015, paragraph 5.1.4, p. 8.

[62].              Australian Lawyers Alliance, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 4.

[63].              Item 16 of Schedule 1 to the Bill inserts proposed section 7A into the Safety, Rehabilitation and Compensation Act.

[64].              Item 14 inserts proposed subsections 5B(3) and 5B(4) into the Safety, Rehabilitation and Compensation Act.

[65].              Parliamentary Joint Committee on Human Rights, Twenty-second report of the 44th Parliament, op. cit., p. 73.

[66].              Safety, Rehabilitation and Compensation Act, Part III, proposed Division 2A—Liable employers and proposed Division 2B—Duties of liable employers.

[67].              Safety, Rehabilitation and Compensation Act, proposed subsection 35(1) at item 50 of Schedule 2 to the Bill.

[68].              The term entity is defined in section 4 of the Safety, Rehabilitation and Compensation Act as (a) an Agency, within the meaning of the Public Service Act 1999, that is not a Commonwealth authority or (b) a Parliamentary Department within the meaning of the Parliamentary Service Act 1999 or (c) a person, body, organisation or group of persons prescribed for this paragraph.

[69].              Item 4 of Schedule 2 to the Bill inserts the definition of current employer.

[70].              Safety, Rehabilitation and Compensation Act, proposed subsections 35(2)–(5).

[71].              Safety, Rehabilitation and Compensation Act, proposed paragraphs 35(1)(d), 35(2)(d), 35(3)(d), 35(4)(d) and 35(5)(d). Item 63 of Schedule 2 to the Bill inserts proposed section 38A which empowers the Minister to declare, in writing, that a specified Entity or a Specified Commonwealth authority is an exempt authority.

[72].              Safety, Rehabilitation and Compensation Act, proposed subsection 35(7).

[73].              Safety, Rehabilitation and Compensation Act, proposed sections 35A and 35B.

[74].              Safety, Rehabilitation and Compensation Act, proposed section 35C.

[75].              Safety, Rehabilitation and Compensation Act, proposed Division 2B of Part III.

[76].              Proposed section 36C of the Safety, Rehabilitation and Compensation Act sets out the circumstances in which a liable employer is formally notified of an injury.

[77].              Safety, Rehabilitation and Compensation Act, proposed section 35J.

[78].              Safety, Rehabilitation and Compensation Act, proposed subsection 35K(1).

[79].              Safety, Rehabilitation and Compensation Act, proposed subsection 35K(6).

[80].              Safety, Rehabilitation and Compensation Act, proposed subsection 35K(2).

[81].              Safety, Rehabilitation and Compensation Act, proposed subsections 35K(3) and 35K(5).

[82].              Inserted by item 9 of Schedule 2 to the Bill.

[83].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report, op. cit., p. 76.

[84].              Item 84 of Schedule 2 to the Bill inserts proposed section 70D into the Safety, Rehabilitation and Compensation Act.

[85].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report, op. cit., p. 78.

[86].              Angela Sdrinis Legal, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, p. 4.

[87].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report, op. cit., p. 65. The amendments created by items 51 and 52 of Schedule 2 to the Bill put this recommendation into operation.

[88].              Safety, Rehabilitation and Compensation Act, proposed section 36D.

[89].              Safety, Rehabilitation and Compensation Act, proposed section 36F.

[90].              Safety, Rehabilitation and Compensation Act, proposed subsections 36H(1), 36H(5) and 35H(6).

[91].              Safety, Rehabilitation and Compensation Act, proposed subsection 36J(1).

[92].              Safety, Rehabilitation and Compensation Act, proposed subsection 36J(2).

[93].              Safety, Rehabilitation and Compensation Act, proposed section 36L.

[94].              Safety, Rehabilitation and Compensation Act, proposed subsections 36F(3) and 36F(4).

[95].              Safety, Rehabilitation and Compensation Act, proposed section 36G.

[96].              Safety, Rehabilitation and Compensation Act, proposed subection 36H(1).

[97].              Safety, Rehabilitation and Compensation Act, proposed subsections 36J(4)–36J(6). The term relevant authority is defined in section 4 of the Safety, Rehabilitation and Compensation Act as a licensee or Comcare.

[98].              Safety, Rehabilitation and Compensation Act, proposed section 36B.

[99].              Safety, Rehabilitation and Compensation Act, proposed subsection 36(1).

[100].              Safety, Rehabilitation and Compensation Act, proposed paragraphs 36(2)(a)-(c).

[101].              Safety, Rehabilitation and Compensation Act, proposed paragraph 36(2)(e).

[102].              Safety, Rehabilitation and Compensation Act, proposed paragraphs 36(2)(h)-(j).

[103].              Safety, Rehabilitation and Compensation Act, proposed paragraph 36(2)(o).

[104].              Safety, Rehabilitation and Compensation Act, proposed paragraph 36(2)(p).

[105].              Safety, Rehabilitation and Compensation Act, proposed subsection 36H(2).

[106].              Safety, Rehabilitation and Compensation Act, proposed subsection 36H(3).

[107].              Safety, Rehabilitation and Compensation Act, proposed section 36A.

[108].              Safety, Rehabilitation and Compensation Act, proposed section 29R, at item 14 of Schedule 15 to the Bill.

[109].              Safety, Rehabilitation and Compensation Act, proposed section 36M.

[110].              Safety, Rehabilitation and Compensation Act, proposed subsection 38(5).

[111].              Safety, Rehabilitation and Compensation Act, proposed subsection 38(7).

[112].              Safety, Rehabilitation and Compensation Act, proposed subsection 38(8).

[113].              Australian Public Service Commission, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, paragraphs 7 and 19.

[114].              Slater and Gordon Lawyers, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 7.

[115].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report, op. cit., paragraph 6.127, p. 71.

[116].              Safety, Rehabilitation and Compensation Act, proposed subsection 38B(1).

[117].              Safety, Rehabilitation and Compensation Act, proposed section 38C.

[118].              Item 75 in Part 1 of Schedule 2 to the Bill repeals and replaces subsection 57(1).

[119].              Safety, Rehabilitation and Compensation Act, proposed section 57A.

[120].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report, op. cit., paragraphs 6.120 and 6.121, p. 71.

[121].              Items 3 and 4 of Schedule 3 to the Bill repeal existing section 51 and insert proposed section 50A into the Safety, Rehabilitation and Compensation Act.

[122].              Item 5 of Schedule 3 to the Bill inserts proposed subsection 54(6) into the Safety, Rehabilitation and Compensation Act.

[123].              Item 6 of Schedule 3 to the Bill repeals section 58 and inserts proposed sections 58 and 58A into the Safety, Rehabilitation and Compensation Act.

[124].              Safety, Rehabilitation and Compensation Act, proposed subsection 58(1).

[125].              Safety, Rehabilitation and Compensation Act, proposed subsection 58(3).

[126].              Safety, Rehabilitation and Compensation Act, proposed subsection 58A(1).

[127].              Australian Lawyers Alliance, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 14.

[128].              Slater and Gordon Lawyers, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 8.

[129].              Ibid.

[130].              Safety, Rehabilitation and Compensation Act, paragraph 69(a).

[131].              Safety, Rehabilitation and Compensation Act, paragraph 108E(a).

[132].              Safety, Rehabilitation and Compensation Act, proposed subsection 61(1A).

[133].              Safety, Rehabilitation and Compensation Act, proposed subsection 61(1B).

[134].              Safety, Rehabilitation and Compensation Act, proposed subsection 61(1C).

[135].              Safety, Rehabilitation and Compensation Act, proposed subsection 61(1D).

[136].              Item 10 of schedule 3 to the Bill repeals subsection 62(6) and inserts proposed subsections 62(6) and 62(6A) into the Safety, Rehabilitation and Compensation Act.

[137].              Item 11 of Schedule 3 to the Bill inserts proposed subsection 64(2) into the Safety, Rehabilitation and Compensation Act.

[138].              Safety, Rehabilitation and Compensation Act, proposed section 70C.

[139].              Public Governance, Performance and Accountability Act 2013.

[140].              Explanatory Memorandum, Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, p. 32.

[141].              Administrative Decisions (Judicial Review) Act 1977.

[142].              Standing Committee for the Scrutiny of Bills, Alert digest, 5, 2015, op. cit., pp. 21–22.

[143].              Safety, Rehabilitation and Compensation Act, section 98A.

[144].              Item 16 of Schedule 3 to the Bill repeals paragraph 104(2)(d) and inserts proposed paragraphs 104(2)(d) and 104(2)(e) into the Safety, Rehabilitation and Compensation Act.

[145].              Safety, Rehabilitation and Compensation Act, section 108.

[146].              Safety, Rehabilitation and Compensation Act, section 108B.

[147].              Item 20 of Schedule 3 to the Bill inserts proposed subsection 108C(8A) into the Safety, Rehabilitation and Compensation Act.

[148].              Safety, Rehabilitation and Compensation Act, proposed paragraph 108C(8A)(e).

[149].              Safety, Rehabilitation and Compensation Act, proposed subsection 108C(11).

[150].              Item 24 of Schedule 3 to the Bill inserts proposed subsections 114(3) and (4) into the Safety, Rehabilitation and Compensation Act.

[151].              Safety, Rehabilitation and Compensation Act, proposed subsection 114(4).

[152].              Item 25 of Schedule 3 to the Bill inserts proposed section 119A into the Safety, Rehabilitation and Compensation Act.

[153].              Item 26 inserts proposed sections 120A and 120B into Part IX of the Safety, Rehabilitation and Compensation Act.

[154].              Safety, Rehabilitation and Compensation Act, proposed subsection 120B(4).

[155].              ACTU, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., paragraph 158, p. 28.

[156].              Item 4 of Schedule 4 to the Bill inserts proposed Part IVA—Provisional medical expense payments into the Safety, Rehabilitation and Compensation Act. Part IVA comprises proposed sections 52B–52K.

[157].              Safety, Rehabilitation and Compensation Act, proposed section 52C.

[158].              Safety, Rehabilitation and Compensation Act, proposed section 52D.

[159].              Safety, Rehabilitation and Compensation Act, proposed subsection 52D(2).

[160].              Safety, Rehabilitation and Compensation Act, proposed subsection 52D(4).

[161].              Safety, Rehabilitation and Compensation Act, proposed subsection 52D(6).

[162].              Safety, Rehabilitation and Compensation Act, proposed section 52F.

[163].              Safety, Rehabilitation and Compensation Act, proposed section 52H.

[164].              Safety, Rehabilitation and Compensation Act, proposed section 52J.

[165].              Items 5–8 of Schedule 4 to the Bill.

[166].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report, op. cit., paragraphs 6.23 and 6.24, p. 56.

[167].              Ibid., recommendation 6.2, p. 9.

[168].              Scheduling is a national classification system that controls how medicines and poisons are made available to the public. Medicines and poisons are classified into schedules according to the level of regulatory control over the availability of the medicine or poison, required to protect public health and safety. Schedule 8 medicines are controlled drugs which are listed in Schedule 8 of the current Poisons Standard.

[169].              Therapeutic Goods Act 1989.

[170].              Item 5 of Schedule 5 to the Bill.

[171].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report, op. cit., paragraph 7.271, p. 119.

[172].              Ibid., paragraph 7.272.

[173].              Item 8 of Schedule 5 to the Bill inserts proposed sections 16A and 16B into the Safety, Rehabilitation and Compensation Act.

[174].              Safety, Rehabilitation and Compensation Act, proposed section 16B.

[175].              Item 7 of Schedule 5 to the Bill inserts proposed subsections 16(3A)—(3C) into the Safety, Rehabilitation and Compensation Act.

[176].              Safety, Rehabilitation and Compensation Act, proposed subsection 16(3B).

[177].              Safety, Rehabilitation and Compensation Act, proposed subsection 16(3C).

[178].              Item 9 of Schedule 5 to the Bill inserts proposed section 54A into Part V of the Safety, Rehabilitation and Compensation Act.

[179].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report, op. cit., paragraph 7.294, p. 122.

[180].              Ibid., recommendation 7.26, p. 14.

[181].              Safety, Rehabilitation and Compensation Act, proposed subsections 54A(2)–(4).

[182].              ACTU, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., paragraphs 189–190, p. 34.

[183].              Safety, Rehabilitation and Compensation Act, section 54 and subsection 57(3).

[184].              Item 11 of Schedule 5 to the Bill inserts proposed section 57B into the Safety, Rehabilitation and Compensation Act. See also Item 14 of Schedule 5 to the Bill which inserts proposed sections 115A and 115B into Part IX of the Safety, Rehabilitation and Compensation Act in similar terms in relation to medical reports.

[185].              Item 10 of Schedule 5 to the Bill inserts proposed subsection 57(5A) into the Safety, Rehabilitation and Compensation Act.

[186].              Item 13 of Schedule 5 to the Bill inserts proposed sections 71A and 71B into Part VII of the Safety, Rehabilitation and Compensation Act. Proposed subsection 71A(6) lists the relevant professional disciplinary authorities. For example, the Australian Health Practitioner Regulation Agency.

[187].              John Holland Group, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, p. 2.

[188].              Safety Rehabilitation and Compensation Licensees Association, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, 30 April 2015, p. 2.

[189].              Slater and Gordon Lawyers, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 10.

[190].              Ibid.

[191].              Parliamentary Joint Committee on Human Rights, Twenty-second report of the 44th Parliament, op. cit., p. 85.

[192].              Ibid., pp. 85–86.

[193].              Safety, Rehabilitation and Compensation Act, section 29.

[194].              Item 3 of Part 1 of Schedule 6 to the Bill inserts proposed sections 29D–29F into the Safety, Rehabilitation and Compensation Act.

[195].              Safety, Rehabilitation and Compensation Act, proposed section 29D.

[196].              Safety, Rehabilitation and Compensation Act, proposed section 29E.

[197].              Safety, Rehabilitation and Compensation Act, proposed section 29F.

[198].              Item 11 repeals and replaces existing subsection 29(3) of the Safety, Rehabilitation and Compensation Act.

[199].              Item 14 of Part 2 of Schedule 6 to the Bill repeals existing subsection 29(5) of the SRC Act and inserts proposed subsections 29(5) and 29(5A) into the Safety, Rehabilitation and Compensation Act.

[200].              Law Council of Australia, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 7.

[201].              Item 16 of Part 2 of Schedule 6 inserts proposed sections 29A–29C into Part II of the Safety, Rehabilitation and Compensation Act.

[202].              Item 5 of Schedule 6 to the Bill.

[203].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report, op. cit., recommendation 7.32, p. 14.

[204].              Safety, Rehabilitation and Compensation Act, proposed section 29B.

[205].              Safety, Rehabilitation and Compensation Act, proposed section 29A.

[206].              Safety, Rehabilitation and Compensation Act, proposed subsection 29A(2).

[207].              Lander v Comcare (2000) 102 FCR 11, [2000] FCA 339.

[208].              Ibid., paragraph 10.

[209].              Safety, Rehabilitation and Compensation Act, proposed subsection 29A(3).

[210].              Social Security Act 1991.

[211].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report, op. cit., paragraph 7.229, p. 113.

[212].              Ibid., paragraph 7.230.

[213].              Ibid., recommendation 7.17.

[214].              Item 1 of Schedule 7 to the Bill inserts proposed section 29K into Division 5A of Part II of the Safety, Rehabilitation and Compensation Act. Proposed subsection 29K(12) provides that if an employee’s right to compensation is suspended under this section, compensation is not payable in respect of the period of the suspension.

[215].              Safety, Rehabilitation and Compensation Act, proposed subsection 29K(2).

[216].              Safety, Rehabilitation and Compensation Act, proposed subsection 29K(7).

[217].              Safety, Rehabilitation and Compensation Act, proposed subsection 29K(8).

[218].              Items 4–6 of Schedule 7 to the Bill amend subsections 120(1)–(3) of the Safety, Rehabilitation and Compensation Act.

[219].              Item 7 of Schedule 7 to the Bill repeals subsections 120(4) and (5) and inserts proposed subsections 120(4)–(9) into Part IX of the Safety, Rehabilitation and Compensation Act.

[220].              Safety, Rehabilitation and Compensation Act, proposed subsection 120(4).

[221].              Safety, Rehabilitation and Compensation Act, proposed subsection 120(5).

[222].              The relevant requirements are set out at subsection 120(3) and proposed subsections 120(4) to (6) of the Safety, Rehabilitation and Compensation Act.

[223].              Under section 4AA of the Crimes Act 1914 a penalty unit is equivalent to $180. This means the maximum penalty is $1,800.

[224].              Standing Committee for the Scrutiny of Bills, Alert digest, 5, 2015, op. cit., p. 23.

[225].              Scrutiny of Bills Committee, Sixth report of 2015, The Senate, Canberra, 17 June 2015, pp. 493–494.

[226].              Ibid., p. 494.

[227].              ACTU, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., paragraph 221, p. 38.

[228].              Item 14 of Schedule 5 to the Bill inserts proposed section 115B into the Safety, Rehabilitation and Compensation Act.

[229].              The Fair Work Amendment Bill 2014, which will become the Fair Work Amendment Act 2015 if enacted, is currently before the Senate.

[230].              Item 1 of Schedule 8 to the Bill inserts proposed subsection 116(1A) into the Safety, Rehabilitation and Compensation Act.

[231].              Explanatory Memorandum, Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, p. 57.

[232].              Ibid. The relevant amendment is at item 5 of Schedule 1 to the Fair Work Amendment Bill 2014.

[233].              Australian Industry Group, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, 1 May 2015, p. 9.

[234].              Item 31 of Schedule 9 repeals subsections 19(2) and (3) and inserts proposed subsection 19(2) into the Safety, Rehabilitation and Compensation Act.

[235].              Item 27 of Schedule 9 to the Bill inserts proposed section 8A into Part I of the Safety, Rehabilitation and Compensation Act.

[236].              The value of fringe benefits is worked out under proposed subsections 8A(2) and (3) of the Safety, Rehabilitation and Compensation Act.

[237].              The value of reportable employer superannuation contributions is worked out under proposed subsections 8A(4) and (5) of the Safety, Rehabilitation and Compensation Act.

[238].              Item 1 of Schedule 9 to the Bill inserts the definition of eligible allowance into subsection 4(1) of the Safety, Rehabilitation and Compensation Act.

[239].              Safety, Rehabilitation and Compensation Act, proposed subsection 8(9H).

[240].              Item 28 of Schedule 9 to the Bill repeals and replaces subsection 9(1) of the Safety, Rehabilitation and Compensation Act.

[241].              Safety, Rehabilitation and Compensation Act, proposed subsections 9(5)–9(8).

[242].              Item 61 of Schedule 9 to the Bill operates so that the decision to use an alternative relevant period is a determination under subsection 60(1) and is reviewable under Part VI of the Safety, Rehabilitation and Compensation Act.

[243].              Safety, Rehabilitation and Compensation Act, proposed subsections 8(1) and 8(2).

[244].              Safety, Rehabilitation and Compensation Act, proposed subsection 8(10).

[245].              Safety, Rehabilitation and Compensation Act, proposed paragraph 19(2)(a).

[246].              Safety, Rehabilitation and Compensation Act, proposed paragraph 19(2)(b).

[247].              Safety, Rehabilitation and Compensation Act, proposed subsection 19(2A).

[248].              Safety, Rehabilitation and Compensation Act, proposed subsection 19(2B).

[249].              Safety, Rehabilitation and Compensation Act, proposed subsection 19(2C).

[250].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report, op. cit., recommendation 7.13, p. 12.

[251].              Safety, Rehabilitation and Compensation Act, subsection 19(4) (as amended by items 17 and 18 of Schedule 2 to the Bill).

[252].              Safety, Rehabilitation and Compensation Act, proposed subsection 35K(1).

[253].              Safety, Rehabilitation and Compensation Act, proposed section 36A.

[254].              Under proposed subsection 29L(7) (at item 14 of Schedule 15 to the Bill) the potential of an employee to be in suitable employment is to be ascertained having regard to the potential of the employee to be rehabilitated, the potential of the employee to benefit from medical treatment and any other relevant matters.

[255].              Safety, Rehabilitation and Compensation Act, proposed subsection 29L(1).

[256].              Safety, Rehabilitation and Compensation Act, proposed subsection 29L(3).

[257].              Safety, Rehabilitation and Compensation Act, proposed subsection 29L(5).

[258].              Explanatory Memorandum, Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, pp. 97 and 98.

[259].              Safety, Rehabilitation and Compensation Act, proposed subsection 19(5).

[260].              Safety, Rehabilitation and Compensation Act, proposed subsections 19(6) and 19(7).

[261].              Australian Bureau of Statistics (ABS), Average weekly earnings in Australia, Key figures, cat. no. 6302.0, ABS, Canberra, May 2015.

[262].              Item 84 of Part 2 of Schedule 9 to the Bill sets out the relevant transitional provisions.

[263].              Subitem 84(5) of Part 2 of Schedule 9 to the Bill.

[264].              AMWU, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 9.

[265].              Items 47 and 48 of Schedule 9 to the Bill amend section 23 of the Safety, Rehabilitation and Compensation Act to align these cut offs to the qualifying age for age pension under the Social Security Act.

[266].              Department of Human Services (DHS), ‘Age requirements for age pension’, DHS website.

[267].              Explanatory Memorandum, Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 68.

[268].              H Allan Hunt and P Barth, Compromise and release settlements in workers’ compensation: final report, report prepared for the State of Washington, Department of Labor and Industries, Upjohn Institute for Employment Research, Kalamazoo, Michigan, 21 December 2010, p. 1.

[269].              Law Council of Australia, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 9.

[270].              Safety, Rehabilitation and Compensation Act, subsection 31(1).

[271].              Item 1 of Schedule 10 to the Bill amends subsection 30(1) of the Safety Rehabilitation and Compensation Act.

[272].              Item 2 of Schedule 10 to the Bill amends subsection 137(1) of the Safety Rehabilitation and Compensation Act.

[273].              Safety, Rehabilitation and Compensation Act, section 123.

[274].              Law Council of Australia, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 10.

[275].              P Hanks QC, Safety, Rehabilitation and Compensation Act review report, op. cit., paragraph 7.241, p. 115.

[276].              Ibid., recommendation 7.18, p. 118.

[277].              Explanatory Memorandum, Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 77. Item 8 of Schedule 11 to the Bill inserts proposed section 67A into Part VI of the Safety, Rehabilitation and Compensation Act.

[278].              Item 2 of Schedule 11 to the Bill inserts proposed section 62A into Part VI of the Safety, Rehabilitation and Compensation Act.

[279].              Item 7 of Schedule 11 to the Bill inserts proposed subsection 67(10A) into the Safety, Rehabilitation and Compensation Act.

[280].               Administrative Appeals Tribunal Act 1975. Section 42B allows the AAT to dismiss an application that it considers to be frivolous or vexatious, has no reasonable prospect of success, or is otherwise an abuse of process.

[281].              Safety, Rehabilitation and Compensation Act, proposed subsection 67(10B).

[282].              Standing Committee for the Scrutiny of Bills, Alert digest, 5, 2015, op. cit., p. 24.

[283].              ACTU, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, p. 48.

[284].              Comcare, ‘Permanent impairment’, Comcare website.

[285].              Explanatory Memorandum, Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 81.

[286].              Safety, Rehabilitation and Compensation Act, subsection 27(2).

[287].              Item 11 of Schedule 12 to the Bill.

[288].              Safety, Rehabilitation and Compensation Act, proposed subsection 24(4).

[289].              Item 6 of Schedule 12 to the Bill.

[290].              Item 26 of Schedule 12 to the Bill.

[291].              Safety, Rehabilitation and Compensation Act 1988 - Guide to the Assessment of the Degree of Permanent Impairment, edition 2.1.

[292].              Safety, Rehabilitation and Compensation Act, proposed subsection 28(1A).

[293].              Safety, Rehabilitation and Compensation Act, proposed subsection 28(1C).

[294].              Safety, Rehabilitation and Compensation Act, proposed subsection 28(1B).

[295].              Safety, Rehabilitation and Compensation Act, proposed section 28A.

[296].              Safety, Rehabilitation and Compensation Act, proposed section 28B.

[297].              Safety, Rehabilitation and Compensation Act, proposed section 6B, at item 2 of Schedule 17 to the Bill.

[298].              Safety, Rehabilitation and Compensation Act, proposed subsection 6B(2). The exception to this rule is contained in proposed subsection 28C.

[299].              Safety, Rehabilitation and Compensation Act, proposed subsections 6B(3) and 6B(4).

[300].              Safety, Rehabilitation and Compensation Act, proposed section 28C.

[301].              Australian Lawyers Alliance, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 11.

[302].              Slater and Gordon Lawyers, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., paragraph 103, p. 19.

[303].              Safety, Rehabilitation and Compensation Act, proposed section 104B.

[304].              Safety, Rehabilitation and Compensation Act, proposed section 104C.

[305].              Safety, Rehabilitation and Compensation Act, proposed section 104D.

[306].              Item 2 of Schedule 14 to the Bill inserts proposed section 7B into the Safety, Rehabilitation and Compensation Act.

[307].              Item 2 of Schedule 15 to the Bill repeals and replaces subsection 50(5) of the Safety, Rehabilitation and Compensation Act.

[308].              Safety, Rehabilitation and Compensation Act, proposed section 29G. Proposed section 29J operates in an equivalent manner to suspend payment of compensation in circumstances where a claimant for compensation refuses or fails, without reasonable excuse, to give a statutory declaration under subsection 118(3) of the SRC Act. This is intended to prevent a person from receiving compensation under that Act in addition to state workers’ compensation.

[309].              Safety, Rehabilitation and Compensation Act, proposed subsection 29G(3).

[310].              Safety, Rehabilitation and Compensation Act, proposed subsection 29G(2).

[311].              Explanatory Memorandum, Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, p. 101.

[312].              Item 11 of Schedule 15 to the Bill inserts proposed section 29H into Part II of the Safety, Rehabilitation and Compensation Act.

[313].              Safety, Rehabilitation and Compensation Act, proposed subsection 29H(2).

[314].              Item 14 of Schedule 15 to the Bill inserts proposed Division 5B—Obligations of mutuality into Part II of the Safety, Rehabilitation and Compensation Act.

[315].              Under proposed subsection 29L(7) the potential of an employee to be in suitable employment is to be ascertained having regard to the potential of the employee to be rehabilitated, the potential of the employee to benefit from medical treatment and any other relevant matters.

[316].              Safety, Rehabilitation and Compensation Act, proposed subsection 29L(1).

[317].              Safety, Rehabilitation and Compensation Act, proposed subsection 29L(3).

[318].              Safety, Rehabilitation and Compensation Act, proposed subsection 29L(5).

[319].              Proposed subsection 57(1), at item 75 of Schedule 2 to the Bill, provides that the relevant authority may require the employee to undergo an examination by a legally qualified medical practitioner, a suitably qualified person (other than a medical practitioner) or a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) any or all of whom are nominated by the relevant authority.

[320].              Safety, Rehabilitation and Compensation Act, proposed section 29M.

[321].              Safety, Rehabilitation and Compensation Act, proposed section 29N. Note that paragraph 29N(1)(d) specifies that the certificate is to be produced within the period allowed under the terms and conditions of the suitable employment. If the period is not specified—then as soon as reasonably practicable.

[322].              Safety, Rehabilitation and Compensation Act, proposed section 29P. Note that subsection 29P(3) provides that it is a reasonable excuse if the employee defers following the medical treatment advice for a reasonable period in order to obtain a second opinion from another legally qualified medical practitioner or dentist.

[323].              Safety, Rehabilitation and Compensation Act, proposed subsection 29P(5).

[324].              Safety, Rehabilitation and Compensation Act, proposed section 29Q.

[325].              Safety, Rehabilitation and Compensation Act, proposed section 29R.

[326].              Proposed section 38B, at item 64 of Schedule 2 to the Bill, provides that the relevant authority may require the employee to undergo a work readiness assessment of the employee’s capacity to undertake suitable employment by a legally qualified medical practitioner, a suitably qualified person (other than a medical practitioner) or a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) any or all of whom are nominated by the relevant authority

[327].              Safety, Rehabilitation and Compensation Act, proposed section 29S.

[328].              Notices are given under proposed subsection 58(1), at item 6 of Schedule 3 to the Bill.

[329].              Safety, Rehabilitation and Compensation Act, proposed section 29T.

[330].              Safety, Rehabilitation and Compensation Act, proposed section 29U.

[331].              Safety, Rehabilitation and Compensation Act, proposed section 29V. Note that an employee may be required to provide a statutory declaration under subsection 118(3) to the effect that he, or she, has not also received state compensation in respect of an injury.

[332].              Australian Lawyers Alliance, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 13.

[333].              Safety, Rehabilitation and Compensation Act, proposed paragraph 29W(1)(a).

[334].              Safety, Rehabilitation and Compensation Act, proposed paragraphs 29W(1)(b)–(c).

[335].              Safety, Rehabilitation and Compensation Act, proposed paragraph 29W(1)(d).

[336].              Safety, Rehabilitation and Compensation Act, proposed paragraph 29W(1)(e).

[337].              Safety, Rehabilitation and Compensation Act, proposed paragraph 29W(4)(e).

[338].              Safety, Rehabilitation and Compensation Act, proposed section 29Y.

[339].              Safety, Rehabilitation and Compensation Act, proposed section 29X.

[340].              Safety, Rehabilitation and Compensation Act, proposed section 29Z.

[341].              Safety, Rehabilitation and Compensation Act, proposed section 29ZA.

[342].              Safety, Rehabilitation and Compensation Act, proposed section 29Y(3).

[343].              AMWU, Submission to the Senate Standing Committee on Education and Employment, Inquiry into the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015, op. cit., p. 10.

[344].              Item 1 of Schedule 16 to the Bill inserts proposed subsections 147(3)–(7) into the Safety, Rehabilitation and Compensation Act.