Western Australian Bills Western Australian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Workers' Compensation and Injury
Management Amendment Bill 2011
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Act amended 2
Part 2 -- Amendments about dispute
resolution
Division 1 -- Main amendments
4. Section 177 replaced 3
177. Object of this Part 3
5. Part XI Division 3 heading replaced and Part XI
Division 3 Subdivision 1 heading inserted 4
Division 3 -- Conciliation
Subdivision 1 -- Workers' Compensation
Conciliation Service
6. Section 181 replaced and Part XI Division 3
Subdivisions 2 to 5 and Part XI Division 4 inserted 4
181. Workers' Compensation Conciliation
Service established 4
182A. Director 4
182B. Conciliation officers 5
182C. Provisions about designations 6
182D. Delegation by Director 6
Subdivision 2 -- Resolution of disputes by
conciliation
182E. Application for conciliation 6
182F. Acceptance of application 7
182G. Director to allocate dispute 7
182H. Director may certify that dispute is not
suitable for conciliation 8
196--1 page i
Workers' Compensation and Injury Management Amendment Bill 2011
Contents
182I. Conciliation process 8
182J. Powers 8
182K. Payment directions 9
182L. Interim suspension or reduction directions 10
182M. Provisions about directions 11
182N. Finalising orders 12
182O. Conclusion of conciliation and certificate
of outcome 13
Subdivision 3 -- Practice and procedure
182P. Obtaining information 13
182Q. Scope of conciliation 14
182R. Conciliation officer may provide
information to another party or a medical
practitioner 14
182S. Representation 15
182T. Litigation guardian 16
182U. Interpreters and assistants 16
182V. Alternative means of participation in
conciliation 16
182W. Conciliation to be in private 17
182X. Attendance at meetings and conferences 17
182Y. Privilege against self incrimination 18
182ZA. Legal professional privilege in relation to
medical reports 18
182ZB. Other claims of privilege 19
182ZC. Dealing with documents produced 19
182ZD. Referral of medical dispute for
assessment 20
Subdivision 4 -- General provisions about
directions, orders and conciliation
agreements
182ZE. Terms used 21
182ZF. When decision or conciliation agreement
has effect 21
182ZG. Correcting mistakes 21
182ZH. Enforcement of decisions and conciliation
agreements 22
182ZI. Conciliation decisions not reviewable 22
182ZJ. Provisions about revoked directions 22
182ZK. Recovery of payments 23
182ZL. Director may order payment by insurer 24
Subdivision 5 -- Miscellaneous
182ZM. Evidence not admissible in proceedings 24
182ZN. Payment of compensation 24
page ii
Workers' Compensation and Injury Management Amendment Bill 2011
Contents
Division 4 -- Arbitration
Subdivision 1 -- Workers' Compensation
Arbitration Service
182ZO. Workers' Compensation Arbitration
Service established 25
182ZP. Registrar 25
182ZQ. Arbitrators 26
182ZR. Provisions about designations 26
182ZS. Delegation by Registrar 27
Subdivision 2 -- Determination of disputes by
arbitration
182ZT. Application for arbitration 27
182ZU. Acceptance of application 28
182ZV. Registrar to allocate dispute 28
7. Section 185 replaced 28
185. Arbitration process 28
8. Section 189 amended 29
9. Section 204A inserted 29
204A. Evidence of communication between
worker and WorkCover WA employee 29
10. Section 211 amended 30
11. Sections 217A and 217B inserted 30
217A. Arbitrator may review decision 30
217B. Arbitration decisions not reviewable 30
12. Part XII deleted 31
13. Part XIII heading amended 31
14. Sections 245 and 246 deleted 31
15. Section 247 amended 31
16. Sections 248 and 249 deleted 32
17. Section 250 amended 33
18. Sections 251 to 253 deleted 33
19. Section 254 replaced 33
254. Appeal to Court of Appeal by leave 33
20. Section 267 replaced 34
267. Appeal costs 34
21. Part XVII deleted 34
22. Sections 293A and 293B inserted 34
293A. Conciliation rules 34
293B. Arbitration rules 35
23. Section 293 amended 36
24. Section 294 replaced 36
294. Practice notes 36
page iii
Workers' Compensation and Injury Management Amendment Bill 2011
Contents
Division 2 -- Consequential and miscellaneous
amendments
25. Section 5 amended 37
26. Section 67 amended 38
27. Section 76 amended 39
28. Section 91 amended 39
29. Section 93D amended 39
30. Section 106 amended 39
31. Section 144 inserted 40
144. Term used: relevant authority 40
32. Section 145A amended 40
33. Section 145B amended 41
34. Section 145C amended 41
35. Section 145D amended 41
36. Section 145E amended 41
37. Section 145F amended 42
38. Section 146F amended 42
39. Section 146M amended 42
40. Section 146S amended 43
41. Section 176 amended 43
42. Section 180 amended 43
43. Section 182 amended 43
44. Section 183 amended 44
45. Section 184 deleted 44
46. Sections 186 and 187 deleted 44
47. Part XI Division 4 heading deleted and Part XI
Division 4 Subdivision 3 heading inserted 44
Subdivision 3 -- Practice and procedure
48. Section 193 amended 44
49. Section 194 amended 45
50. Section 195 amended 45
51. Section 196 replaced 45
196. Litigation guardian 45
52. Section 198 amended 46
53. Section 199 amended 46
54. Section 204 amended 46
55. Section 205 amended 46
56. Part XI Division 5 heading deleted and Part XI
Division 4 Subdivision 4 heading inserted 47
Subdivision 4 -- Decisions
57. Part XI Division 5 Subdivision 1 heading deleted 47
page iv
Workers' Compensation and Injury Management Amendment Bill 2011
Contents
58. Part XI Division 5 Subdivision 2 heading deleted 47
59. Section 218 amended 47
60. Part XI Division 5 Subdivision 3 heading deleted 47
61. Part XI Division 6 heading deleted and Part XI
Division 4 Subdivision 5 heading inserted 47
Subdivision 5 -- Miscellaneous
62. Section 255 amended 48
63. Section 256 replaced 48
256. Failure to comply with summons or
requirement to attend 48
64. Section 257 amended 49
65. Section 259 amended 49
66. Section 260 deleted 50
67. Section 268 amended 50
68. Section 292 amended 50
69. Section 299 amended 50
70. Section 304 amended 51
71. Section 305 amended 51
72. Section 325 inserted 51
325. Transitional provisions 51
73. Schedule 7 amended 53
74. Schedule 8 replaced 53
Schedule 8 -- Transitional provisions
1. Terms used 53
2. Pending arbitration proceedings 54
3. Pending Part XII applications 55
4. Records 55
5. Pending Part XIII matters 56
6. Pending Court of Appeal matters 56
7. Further Court of Appeal matters 56
8. Continuation of Commissioner's
appointment 57
75. Various references to "Director" amended 57
76. Various references to "DRD Rules" amended 58
Division 3 -- Workers' Compensation (DRD)
Rules 2005 repealed
77. DRD Rules repealed 58
Part 3 -- Other amendments
Division 1 -- Amendments
78. Long title amended 59
page v
Workers' Compensation and Injury Management Amendment Bill 2011
Contents
79. Section 3 amended 59
80. Section 5 amended 60
81. Section 10A amended 61
82. Section 24A amended 61
83. Section 31E amended 62
84. Section 32 amended 62
85. Section 33 amended 63
86. Section 38 amended 63
87. Section 41 amended 64
88. Section 56 amended 64
89. Section 57 amended 65
90. Section 57A amended 65
91. Section 57B amended 67
92. Section 58 amended 67
93. Section 67 amended 68
94. Section 71 amended 68
95. Section 83 amended 70
96. Section 93K amended 70
97. Section 100 replaced 70
100. Functions of WorkCover WA 70
98. Section 101 amended 72
99. Section 106 amended 73
100. Section 146H amended 73
101. Section 151 amended 73
102. Section 155E inserted 74
155E. Notice of requirements of sections 155C
and 155D 74
103. Section 157A deleted 74
104. Section 159 inserted 74
159. Terms used 74
105. Section 160 amended 75
106. Section 161A amended 77
107. Section 164 amended 77
108. Section 165 amended 77
109. Section 168 amended 78
110. Section 171 amended 79
111. Section 172 amended 79
112. Section 173 amended 79
113. Section 174 amended 80
114. Section 174AAA inserted 82
174AAA. Setting aside judgments and agreements 82
page vi
Workers' Compensation and Injury Management Amendment Bill 2011
Contents
115. Section 174AB amended 84
116. Section 174AC replaced 85
174AC. WorkCover WA's rights of indemnity and
subrogation 85
174AD. Employer's duty to assist WorkCover WA 85
117. Section 174A amended 86
118. Section 175 amended 86
119. Section 175A amended 87
120. Section 178 amended 87
121. Section 270A inserted 88
270A. Remuneration 88
122. Section 277 amended 88
123. Schedule 1 amended 88
124. Schedule 3 amended 93
Division 2 -- Workers' Compensation and Injury
Management (Specified Industrial
Diseases) Order 2008 revoked
125. Specified Industrial Diseases Order revoked 93
page vii
Western Australia
LEGISLATIVE ASSEMBLY
Workers' Compensation and Injury
Management Amendment Bill 2011
A Bill for
An Act to amend the Workers' Compensation and Injury Management
Act 1981 and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Workers' Compensation and Injury Management Amendment Bill 2011
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Workers' Compensation and Injury Management
4 Amendment Act 2011.
5 2. Commencement
6 This Act comes into operation as follows --
7 (a) sections 1 and 2 -- on the day on which this Act
8 receives the Royal Assent;
9 (b) the rest of the Act -- on a day fixed by proclamation,
10 and different days may be fixed for different provisions.
11 3. Act amended
12 This Act amends the Workers' Compensation and Injury
13 Management Act 1981.
page 2
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 4
1 Part 2 -- Amendments about dispute resolution
2 Division 1 -- Main amendments
3 4. Section 177 replaced
4 Delete section 177 and insert:
5
6 177. Object of this Part
7 (1) The object of this Part is to provide a fair and cost
8 effective system for the resolution of disputes under
9 this Act that --
10 (a) is timely; and
11 (b) is accessible, approachable and professional;
12 and
13 (c) minimises costs to parties to disputes; and
14 (d) in the case of conciliation, leads to final and
15 appropriate agreements between parties in
16 relation to disputes; and
17 (e) in the case of arbitration, enables disputes not
18 resolved by conciliation to be determined
19 according to their substantial merits with as
20 little formality and technicality as practicable.
21 (2) Dispute resolution authorities and officers of
22 WorkCover WA mentioned in section 181(2)(b)(ii)
23 or 182ZO(2)(b)(ii) are to have regard to the object of
24 this Part when they perform their functions.
25
page 3
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 5
1 5. Part XI Division 3 heading replaced and Part XI Division 3
2 Subdivision 1 heading inserted
3 Delete the heading to Part XI Division 3 and insert:
4
5 Division 3 -- Conciliation
6 Subdivision 1 -- Workers' Compensation Conciliation
7 Service
8
9 6. Section 181 replaced and Part XI Division 3 Subdivisions 2
10 to 5 and Part XI Division 4 inserted
11 Delete section 181 and insert:
12
13 181. Workers' Compensation Conciliation Service
14 established
15 (1) A service called the Workers' Compensation
16 Conciliation Service is established.
17 (2) The Conciliation Service consists of --
18 (a) the Director; and
19 (b) the staff of the Conciliation Service being --
20 (i) the conciliation officers; and
21 (ii) officers of WorkCover WA assisting in
22 the administration of the Conciliation
23 Service and the performance of its
24 functions.
25 182A. Director
26 (1) The chief executive officer is to designate a person
27 who is an officer of WorkCover WA as the Director,
28 Conciliation.
page 4
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 6
1 (2) The Director --
2 (a) is responsible for the administration of the
3 Conciliation Service; and
4 (b) is to allocate work to conciliation officers; and
5 (c) without limiting the functions of the chief
6 executive officer, is to manage and direct the
7 staff of the Conciliation Service; and
8 (d) has, and may perform, all the functions of a
9 conciliation officer; and
10 (e) is to provide advice as to the content of the
11 conciliation rules; and
12 (f) has the other functions conferred on the
13 Director by this Act or any other written law.
14 (3) The Director is not subject to the management or
15 direction of the chief executive officer as to any
16 decision to be made, or discretion to be exercised, in
17 relation to a particular dispute.
18 182B. Conciliation officers
19 (1) The chief executive officer may designate a person
20 who is an officer of WorkCover WA as a conciliation
21 officer.
22 (2) The chief executive officer may exercise the powers of
23 an employing authority under the Public Sector
24 Management Act 1994 section 100 to engage a person
25 to be a conciliation officer on a sessional basis.
26 (3) The number of persons designated or engaged under
27 this section is to be determined by the chief executive
28 officer having regard to the object of this Part.
29 (4) Conciliation officers are not subject to the management
30 or direction of the chief executive officer or the
31 Director as to any decision to be made, or discretion to
32 be exercised, in relation to a particular dispute.
page 5
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 6
1 182C. Provisions about designations
2 (1) In this section --
3 designation means a designation under
4 section 182A(1) or 182B(1).
5 (2) A designation is to be in writing and the Interpretation
6 Act 1984 section 52 applies to it in the same way as
7 that section applies to an appointment.
8 (3) The designation of a person ceases to have effect if the
9 person ceases to be an officer of WorkCover WA.
10 182D. Delegation by Director
11 (1) The Director may delegate a power or duty given to the
12 Director under this Act to an officer of
13 WorkCover WA or a person engaged under
14 section 182B(2).
15 (2) The Director is to make the delegation in writing
16 signed by the Director.
17 (3) A person to whom a power or duty is delegated under
18 this section cannot delegate that power or duty.
19 (4) A person exercising or performing a power or duty that
20 has been delegated to the person under this section is
21 taken to do so in accordance with the terms of the
22 delegation unless the contrary is shown.
23 (5) Nothing in this section limits the ability of the Director
24 to perform a function through an officer or agent.
25 Subdivision 2 -- Resolution of disputes by conciliation
26 182E. Application for conciliation
27 (1) A party to a dispute (referred to in this Division as the
28 dispute) may apply to the Director in accordance with
page 6
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 6
1 this Act and the conciliation rules for resolution of the
2 dispute by conciliation.
3 (2) Subsection (1) and section 182ZU(1) have effect
4 despite any other provision of this Act --
5 (a) enabling or requiring a party to make
6 application for a dispute or matter to be heard
7 and determined by an arbitrator; or
8 (b) authorising an arbitrator to determine a dispute
9 or matter.
10 Note: For example, if an employer is ordered by the Director under
11 section 58(2a) to make an application for an arbitrator to hear and
12 determine the question of liability to make weekly payments, the
13 employer must first make an application for conciliation.
14 182F. Acceptance of application
15 (1) An application for conciliation cannot be accepted by
16 the Director unless the Director is satisfied --
17 (a) that it relates to a dispute as defined in
18 section 176; and
19 (b) that reasonable attempts have been made to
20 resolve the dispute by negotiation with the
21 other party or parties to the dispute.
22 (2) The onus is on the applicant to satisfy the Director for
23 the purposes of subsection (1).
24 (3) The Director may reject an application for conciliation
25 if it does not comply with the conciliation rules.
26 (4) Conciliation commences when an application for
27 conciliation is accepted by the Director.
28 182G. Director to allocate dispute
29 (1) Subject to section 182H, when an application for
30 conciliation is accepted the Director is to allocate the
31 dispute to a conciliation officer.
page 7
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 6
1 (2) The Director may reallocate the dispute to another
2 conciliation officer at any time.
3 (3) The conciliation officer to whom the dispute is
4 allocated for the time being is referred to in this
5 Division as the conciliation officer.
6 182H. Director may certify that dispute is not suitable for
7 conciliation
8 The Director may, without allocating the dispute,
9 determine that no matter in dispute is suitable for
10 conciliation and issue a certificate to that effect.
11 182I. Conciliation process
12 (1) The conciliation officer is to make all reasonable
13 efforts to bring the parties to the dispute to an
14 agreement acceptable to all of them.
15 (2) The conciliation officer is to act --
16 (a) fairly, economically, informally and quickly;
17 and
18 (b) according to the substantial merits of the case
19 without regard to technicalities and legal forms.
20 182J. Powers
21 The conciliation officer may --
22 (a) require a party to the dispute to attend at a
23 meeting with the conciliation officer;
24 (b) require a party to the dispute to attend at a
25 conciliation conference at which the
26 conciliation officer and any other party to the
27 dispute is present;
28 (c) require a party to the dispute, or the
29 representative of a party, to answer questions
30 put by the conciliation officer;
page 8
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 6
1 (d) require a party to the dispute, or the
2 representative of a party, to produce documents
3 to the conciliation officer, or consent to another
4 person who has relevant documents producing
5 them to the conciliation officer.
6 182K. Payment directions
7 (1) This section applies in relation to the employer and
8 worker who are parties to the dispute.
9 (2) The conciliation officer may direct that weekly
10 payments of compensation be made by the employer to
11 the worker if the conciliation officer considers that it
12 would be reasonable to expect that the resolution or
13 determination of the dispute under this Part would
14 result in weekly payments of compensation becoming
15 payable.
16 (3) The conciliation officer is not to direct that weekly
17 payments of compensation be made --
18 (a) for a period that exceeds 12 weeks; or
19 (b) if 2 or more directions are given: for periods the
20 aggregate of which exceeds 12 weeks.
21 (4) The conciliation officer may direct that a payment be
22 made by the employer in respect of a compensation
23 entitlement under clause 17 or 19 (statutory expenses)
24 if the conciliation officer considers that it would be
25 reasonable to expect that the resolution or
26 determination of the dispute under this Part would
27 result in statutory expenses becoming payable.
28 (5) The conciliation officer is not to direct payment in
29 respect of statutory expenses --
30 (a) of an amount that exceeds 5% of the prescribed
31 amount; or
page 9
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 6
1 (b) if 2 or more directions are given: of amounts
2 the aggregate of which exceeds 5% of the
3 prescribed amount.
4 (6) A payment made by a party in accordance with a
5 direction under subsection (2) or (4) --
6 (a) is not an admission of liability by the party; and
7 (b) does not prevent a question of liability from
8 being heard and determined on an application
9 under section 58 or otherwise under this Act as
10 if the payment had not been made.
11 (7) The conciliation officer, or another conciliation officer,
12 may, by further direction, vary, suspend or revoke a
13 direction previously given under subsection (2) or (4)
14 or this subsection.
15 (8) When a direction under subsection (2) or (4) is revoked
16 the obligation to pay compensation under the direction
17 ceases.
18 (9) The revocation of a direction given under
19 subsection (2) or (4) does not affect the requirement to
20 pay the compensation before the revocation.
21 182L. Interim suspension or reduction directions
22 (1) This section applies in relation to the employer and
23 worker who are parties to the dispute in a case where
24 weekly payments are being made otherwise than by
25 direction under section 182K.
26 (2) The conciliation officer may direct that weekly
27 payments of compensation are to be suspended or
28 reduced if the conciliation officer considers that it
29 would be reasonable to expect that the resolution or
30 determination of the dispute under this Part would
31 result in the payments being suspended or reduced.
page 10
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 6
1 (3) The conciliation officer is not to direct the suspension
2 or reduction of weekly payments --
3 (a) for a period that exceeds 12 weeks; or
4 (b) if 2 or more directions are given: for periods the
5 aggregate of which exceeds 12 weeks.
6 (4) The conciliation officer, or another conciliation officer,
7 may, by further direction, amend, suspend or revoke a
8 direction previously given under subsection (2) or this
9 subsection.
10 (5) When a direction suspending weekly payments is
11 revoked --
12 (a) the obligation to make weekly payments
13 recommences from the date on which the
14 suspension is revoked; and
15 (b) the worker is to be paid the weekly payments
16 that were not paid during the period of
17 suspension unless the conciliation officer
18 directs otherwise.
19 (6) When a direction reducing weekly payments is
20 revoked --
21 (a) the obligation to make weekly payments as if
22 the direction had not been made recommences
23 from the date on which the direction is revoked;
24 and
25 (b) the worker is to be paid any amount of weekly
26 payments to which the worker would have been
27 entitled if the direction had not been made
28 unless the conciliation officer directs otherwise.
29 182M. Provisions about directions
30 (1) In this section --
31 direction means a direction under section 182K(2), (4)
32 or (6) or 182L(2) or (4).
page 11
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 6
1 (2) The conciliation officer is not required to give reasons
2 in writing for a direction.
3 (3) A direction can be given subject to conditions.
4 (4) A decision of the conciliation officer to give, or not to
5 give, a direction is not a determination of liability.
6 (5) The conciliation rules may regulate the giving of
7 directions.
8 182N. Finalising orders
9 (1) The conciliation officer may, with the consent of the
10 parties to the dispute, issue an order of the kind that an
11 arbitrator could issue setting out matters that have been
12 agreed to during conciliation.
13 (2) An order is not to be made under this section unless --
14 (a) the parties have lodged with the Conciliation
15 Service a memorandum of consent that sets out
16 the terms of the order consented to by the
17 parties; and
18 (b) the conciliation officer is satisfied that --
19 (i) the parties have given their consent by
20 free exercise of their will and without
21 being induced by fraud or
22 misrepresentation; and
23 (ii) the parties understand the effect of
24 giving their consent; and
25 (iii) the terms of the order consented to by
26 the parties are terms that can be given
27 effect to under this Act.
page 12
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 6
1 182O. Conclusion of conciliation and certificate of
2 outcome
3 (1) Conciliation of the dispute ends when --
4 (a) agreement is reached by the parties on all
5 matters in dispute; or
6 (b) the conciliation officer believes that there is
7 minimal chance of agreement or further
8 agreement, as the case may be, being reached;
9 or
10 (c) the time limit for conciliation, as provided or
11 extended under the conciliation rules, has
12 expired.
13 (2) At the end of conciliation of the dispute the
14 conciliation officer is to issue a certificate in
15 accordance with the conciliation rules setting out --
16 (a) the outcome of conciliation; and
17 (b) the terms of any direction currently in force
18 under section 182K or 182L.
19 (3) The terms of an agreement reached by the parties are
20 not to be included in the conciliation officer's
21 certificate unless they are terms that --
22 (a) are of the kind that an arbitrator could
23 determine; and
24 (b) can be given effect to under this Act.
25 Subdivision 3 -- Practice and procedure
26 182P. Obtaining information
27 The conciliation officer is not bound by the rules of
28 evidence and may use any means the conciliation
29 officer thinks fit in order to be informed about any
30 matter.
page 13
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 6
1 182Q. Scope of conciliation
2 (1) The matters that may be discussed and agreed on at
3 conciliation or the subject of a direction under
4 section 182K or 182L are not necessarily limited by the
5 extent of the dispute as detailed in the application for
6 conciliation.
7 (2) However subsection (1) does not prevent the
8 conciliation officer from determining that a matter is
9 beyond the scope of the application for conciliation and
10 should be the subject of another application for
11 conciliation.
12 182R. Conciliation officer may provide information to
13 another party or a medical practitioner
14 (1) In this section --
15 information includes a document or other material.
16 (2) When information is provided to the conciliation
17 officer by a party to the dispute or another person
18 (whether or not pursuant to a requirement by the
19 conciliation officer), the conciliation officer may
20 provide the information to --
21 (a) any other party to the dispute; or
22 (b) any other party's legal representative or
23 registered agent; or
24 (c) a medical practitioner (including a medical
25 assessment panel).
26 (3) The conciliation officer may, when providing
27 information to another person, prohibit or restrict the
28 disclosure of the information to another person.
page 14
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 6
1 182S. Representation
2 (1) At any meeting with the conciliation officer or
3 conciliation conference, a party to the dispute may
4 appear in person or may be represented by --
5 (a) a legal practitioner; or
6 (b) a registered agent; or
7 (c) if the party is a body corporate, a director,
8 secretary, or other officer of the body
9 corporate; or
10 (d) if the party is a public sector body as defined in
11 the Public Sector Management Act 1994
12 section 3(1), a public sector employee
13 authorised by the party to represent the party.
14 (2) The conciliation officer may refuse to permit an
15 employer or an insurer to be represented by a legal
16 practitioner or registered agent if a party who is a
17 worker is not represented by a legal practitioner or
18 registered agent.
19 (3) A prohibited person cannot represent a party.
20 (4) In subsection (3) --
21 prohibited person has the meaning given in the Legal
22 Profession Act 2008 section 18(1) except that it does
23 not include a person whose name has been removed
24 from an Australian roll (as defined in section 3 of that
25 Act) at the person's own request.
26 (5) The conciliation officer may refuse to permit a party to
27 be represented by an agent if of the opinion that the
28 agent does not have sufficient authority to make
29 binding decisions on behalf of the party.
30 (6) The regulations or the conciliation rules may prevent
31 specified persons, or persons of a specified class, from
32 representing a party.
page 15
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 6
1 182T. Litigation guardian
2 (1) The conciliation rules may provide that, if a child is a
3 party to a dispute, the conciliation officer may appoint
4 a litigation guardian to act on the child's behalf.
5 (2) The conciliation rules may provide that, if a party to a
6 dispute is under a legal disability (otherwise than
7 because of being a child), the conciliation officer may
8 defer making efforts to resolve the dispute until a
9 litigation guardian is appointed to act on the party's
10 behalf, whether under the Guardianship and
11 Administration Act 1990 or otherwise.
12 182U. Interpreters and assistants
13 (1) Unless the conciliation officer directs otherwise, a
14 party to the dispute or the party's representative may be
15 assisted in the course of a meeting or conciliation
16 conference by an interpreter or another person
17 necessary or desirable to make the meeting or
18 conciliation conference intelligible to that party and to
19 enable the party to communicate adequately.
20 (2) A person may present a written submission in a
21 language other than English if it is accompanied by a
22 translation into English and a statutory declaration by
23 the translator to the effect that the translation
24 accurately reproduces in English the contents of the
25 original document.
26 182V. Alternative means of participation in conciliation
27 (1) If the conciliation officer thinks it appropriate, the
28 conciliation officer is to allow the parties and their
29 representatives (or one or more of them) to participate
30 in a meeting or conciliation conference by means of
31 telephones, video links, or any other system or method
32 of communication.
page 16
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 6
1 (2) If the conciliation officer thinks it appropriate, the
2 conciliation officer may conduct all or part of a
3 meeting or conciliation conference entirely on the basis
4 of documents without the parties or their
5 representatives attending or participating in a meeting
6 or conciliation conference.
7 (3) The conciliation officer may take into account a written
8 submission prepared by a legal practitioner or
9 registered agent acting for a party to a dispute and
10 submitted by or on behalf of the party, whether or not
11 the party is represented by a legal practitioner or
12 registered agent at a meeting or conciliation
13 conference.
14 182W. Conciliation to be in private
15 Meetings with the conciliation officer and conciliation
16 conference are to be conducted in private unless --
17 (a) the conciliation officer decides that the meeting
18 or conciliation conference should be conducted
19 in public; or
20 (b) the conciliation rules otherwise provide.
21 182X. Attendance at meetings and conferences
22 (1) Notice of the time and place at which a party to the
23 dispute is required to attend a meeting with the
24 conciliation officer is to be given to the party in
25 accordance with the conciliation rules.
26 (2) Notice of the time and place for a conciliation
27 conference is to be given in accordance with the
28 conciliation rules --
29 (a) to each party to the dispute; and
30 (b) if the conciliation officer considers that it is
31 appropriate in the circumstances for another
page 17
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 6
1 person to receive notice of the conference: to
2 that other person.
3 (3) If a person, including a party, to whom notice has been
4 given in accordance with the conciliation rules fails to
5 attend a conciliation conference, the conciliation
6 conference may be held in the absence of that person.
7 (4) The failure of a party to attend before the conciliation
8 officer when required to do so does not prevent a
9 direction that affects the party from being given under
10 section 182K or 182L.
11 182Y. Privilege against self incrimination
12 (1) A person is not excused from complying with a
13 requirement under this Division to answer a question or
14 produce a document on the ground that the answer or
15 the production of the document might incriminate the
16 person or render the person liable to a penalty.
17 (2) However neither --
18 (a) an answer given by that person that was given
19 to comply with the requirement; nor
20 (b) the fact that a document produced by the person
21 to comply with the requirement was produced,
22 is admissible in evidence in any criminal proceedings
23 against the person other than proceedings for perjury or
24 for an offence against this Act arising out of the false
25 or misleading nature of an answer.
26 182ZA. Legal professional privilege in relation to medical
27 reports
28 (1) A legal practitioner is not excused from complying
29 with a requirement under this Division to answer a
30 question in relation to a medical report or produce a
31 medical report on the ground that the answer to the
page 18
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 6
1 question would disclose, or the report contains, a
2 privileged communication made by or to the legal
3 practitioner in his or her capacity as a legal
4 practitioner.
5 (2) Subsection (1) does not apply in respect of a question
6 that does not relate directly to the treatment, or nature
7 or extent of impairment, or assessment of degree of
8 impairment, of a worker.
9 (3) A medical report may be produced by the legal
10 practitioner in compliance with a requirement under
11 this Division with the omission of passages that --
12 (a) do not relate directly to the treatment, or nature
13 or extent of impairment, or assessment of
14 degree of impairment, of a worker; and
15 (b) contain a privileged communication made by or
16 to the legal practitioner in his or her capacity as
17 a legal practitioner.
18 182ZB. Other claims of privilege
19 (1) Unless it would be contrary to section 182Y or 182ZA,
20 a person is excused from answering a question or
21 producing a document under this Division if the person
22 could not be compelled to answer the question or
23 produce the document in proceedings in the Supreme
24 Court.
25 (2) The conciliation officer may require a person to
26 produce a document to the conciliation officer for the
27 purpose of determining whether or not it is a document
28 that the conciliation officer has power to require the
29 person to produce.
30 182ZC. Dealing with documents produced
31 The conciliation officer may inspect any document
32 produced before the conciliation officer, and retain it
page 19
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 6
1 for as long as the conciliation officer reasonably thinks
2 fit, and make copies of any document or any of its
3 contents.
4 182ZD. Referral of medical dispute for assessment
5 (1) If permitted by section 145A to do so, the conciliation
6 officer may refer a question as to --
7 (a) the nature or extent of an injury; or
8 (b) whether an injury is permanent or temporary; or
9 (c) a worker's capacity for work,
10 for determination by a medical assessment panel.
11 (2) Without limiting subsection (1), it applies to --
12 (a) questions as to the permanent or other loss of
13 the efficient use of any part or faculty of the
14 body for the purposes of Part III Division 2, or
15 to the degree of that loss; and
16 (b) questions as to the degree of disability assessed
17 in accordance with section 93D(2); and
18 (c) questions for the purposes of section 31F as to
19 whether a worker has contracted AIDS.
20 (3) Subsection (1) does not apply to questions as to --
21 (a) the permanent or other impairment of the
22 efficient use of any part or faculty of the body
23 for the purposes of Part III Division 2A, or to
24 the degree of that impairment; or
25 (b) the degree of permanent whole of person
26 impairment for the purposes of Part IV
27 Division 2 Subdivision 3; or
28 (c) the degree of whole of person impairment for
29 the purposes of Part IXA; or
30 (d) the degree of permanent whole of person
31 impairment for the purposes of clause 18A.
page 20
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 6
1 Subdivision 4 -- General provisions about directions, orders
2 and conciliation agreements
3 182ZE. Terms used
4 In this Subdivision --
5 certificate of outcome means the conciliation officer's
6 certificate under section 182O;
7 conciliation agreement means an agreement reached
8 by the parties to the dispute during conciliation and
9 recorded in the certificate of outcome;
10 conciliation decision means a direction under
11 section 182K or 182L, an order under section 182N or
12 a referral under section 182ZD.
13 182ZF. When decision or conciliation agreement has effect
14 A conciliation decision or conciliation agreement
15 comes into effect immediately after it is given or made,
16 or at such later time as is specified in it.
17 182ZG. Correcting mistakes
18 The conciliation officer may correct a conciliation
19 decision or the certificate of outcome to the extent
20 necessary to rectify --
21 (a) a clerical mistake; or
22 (b) an error arising from an accidental slip or
23 omission; or
24 (c) a material miscalculation of figures or a
25 material mistake in the description of any
26 person, thing, or matter referred to in the
27 decision or certificate; or
28 (d) a defect of form.
page 21
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 6
1 182ZH. Enforcement of decisions and conciliation
2 agreements
3 (1) A person to whom money is to be paid under a
4 conciliation decision or a conciliation agreement may
5 enforce the conciliation decision or conciliation
6 agreement by filing in a court of competent jurisdiction
7 (the court) --
8 (a) a copy of the conciliation decision or certificate
9 of outcome that the Director has certified to be
10 a true copy; and
11 (b) an affidavit as to the amount not paid under the
12 conciliation decision or conciliation agreement.
13 (2) No charge is to be made for filing the documents under
14 subsection (1).
15 (3) On the filing of the documents under subsection (1),
16 the conciliation decision or conciliation agreement is to
17 be taken to be an order of the court and, subject to
18 subsection (4), may be enforced accordingly.
19 (4) A conciliation agreement cannot be enforced under
20 subsection (3) before the expiration of the period
21 of 21 days starting on the day on which the certificate
22 of outcome is issued.
23 182ZI. Conciliation decisions not reviewable
24 Subject to sections 182ZJ and 182ZK a conciliation
25 decision is not subject to an appeal or amenable to
26 judicial review.
27 182ZJ. Provisions about revoked directions
28 (1) If a direction under section 182K(2) or (4) is revoked
29 by an arbitrator under section 211(2), section 182K(8)
30 and (9) apply to the revocation.
page 22
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 6
1 (2) If a direction under section 182L(2) is revoked by an
2 arbitrator under section 211(2), section 182L(5) and (6)
3 apply to the revocation as if references in them to the
4 conciliation officer were references to the arbitrator.
5 182ZK. Recovery of payments
6 If an arbitrator determines under Division 4 that a
7 person was not liable to pay compensation by way of
8 the weekly payments or statutory expenses that have
9 been paid in accordance with a direction of the
10 conciliation officer under section 182K(2) or (4), the
11 following provisions apply --
12 (a) the worker or other person who received that
13 compensation is not required to refund the
14 compensation unless the arbitrator otherwise
15 orders under paragraph (b);
16 (b) if the arbitrator is satisfied that the claim for
17 compensation was wholly or partly fraudulent
18 or made without proper justification, the
19 arbitrator may order the worker or other person
20 concerned to refund the whole or a specified
21 part of the compensation;
22 (c) the arbitrator may (instead of making an order
23 for a refund) order any other person whom the
24 arbitrator determines was liable for the whole
25 or any part of the compensation to reimburse
26 the person who paid the compensation;
27 (d) the compensation is to be excluded from any
28 determinations of the claims experience of the
29 employer for the purposes of calculating the
30 premium payable by the employer for a policy
31 of insurance.
page 23
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 6
1 182ZL. Director may order payment by insurer
2 (1) Without affecting section 182ZH, if an employer has
3 failed to make a payment required by a direction under
4 section 182K(2) or (4), the Director, on application
5 made by the worker --
6 (a) may order the insurer to make the payment; and
7 (b) may, if the Director considers it necessary,
8 order the insurer to make any remaining
9 payments required under the direction.
10 (2) An order under subsection (1) may be enforced in
11 accordance with section 182ZH.
12 Subdivision 5 -- Miscellaneous
13 182ZM. Evidence not admissible in proceedings
14 (1) In this section --
15 subsequent proceeding means a proceeding before an
16 arbitrator or an action brought by the worker for
17 damages independently of this Act.
18 (2) Evidence of a statement made to the conciliation
19 officer or in a conciliation conference is not admissible
20 in a subsequent proceeding unless the person who
21 made the statement agrees to the evidence being
22 admitted.
23 (3) The conciliation officer is not to be called as a witness
24 in a subsequent proceeding.
25 182ZN. Payment of compensation
26 A sum directed or agreed to be payable as
27 compensation is to be paid to the person to whom it is
28 payable under the direction or conciliation agreement
29 unless it is paid into the custody of WorkCover WA.
page 24
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 6
1 Division 4 -- Arbitration
2 Subdivision 1 -- Workers' Compensation
3 Arbitration Service
4 182ZO. Workers' Compensation Arbitration Service
5 established
6 (1) A service called the Workers' Compensation
7 Arbitration Service is established.
8 (2) The Arbitration Service consists of --
9 (a) the Registrar; and
10 (b) the staff of the Arbitration Service being --
11 (i) the arbitrators; and
12 (ii) officers of WorkCover WA assisting in
13 the administration of the Arbitration
14 Service and the performance of its
15 functions.
16 182ZP. Registrar
17 (1) The chief executive officer is to designate a person
18 who is an officer of WorkCover WA as the Registrar,
19 Arbitration.
20 (2) A person cannot be designated under this section
21 unless the person is a legal practitioner.
22 (3) The Registrar --
23 (a) is responsible for the administration of the
24 Arbitration Service; and
25 (b) is to allocate work to arbitrators; and
26 (c) without limiting the functions of the chief
27 executive officer, is to manage and direct the
28 staff of the Arbitration Service; and
page 25
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 6
1 (d) has, and may perform, all the functions of an
2 arbitrator; and
3 (e) is to provide advice as to the content of the
4 arbitration rules; and
5 (f) has the other functions conferred on the
6 Registrar by this Act or any other written law.
7 (4) The Registrar is not subject to the management or
8 direction of the chief executive officer as to any
9 decision to be made, or discretion to be exercised, in
10 relation to a particular dispute.
11 182ZQ. Arbitrators
12 (1) The chief executive officer may designate a person
13 who is an officer of WorkCover WA as an arbitrator.
14 (2) The chief executive officer may exercise the powers of
15 an employing authority under the Public Sector
16 Management Act 1994 section 100 to engage a person
17 to be an arbitrator on a sessional basis.
18 (3) A person cannot be designated or engaged under this
19 section unless the person is a legal practitioner.
20 (4) The number of persons designated or engaged under
21 this section is to be determined by the chief executive
22 officer having regard to the object of this Part.
23 (5) Arbitrators are not subject to the management or
24 direction of the chief executive officer or the Registrar
25 as to any decision to be made, or discretion to be
26 exercised, in relation to a particular dispute.
27 182ZR. Provisions about designations
28 (1) In this section --
29 designation means a designation under
30 section 182ZP(1) or 182ZQ(1).
page 26
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 6
1 (2) A designation is to be in writing and the Interpretation
2 Act 1984 section 52 applies to it in the same way as
3 that section applies to an appointment.
4 (3) The designation of a person ceases to have effect if the
5 person ceases to be an officer of WorkCover WA.
6 182ZS. Delegation by Registrar
7 (1) The Registrar may delegate a power or duty given to
8 the Registrar under this Act to an officer of
9 WorkCover WA or a person engaged under
10 section 182ZQ(2).
11 (2) The Registrar is to make the delegation in writing
12 signed by the Registrar.
13 (3) A person to whom a power or duty is delegated under
14 this section cannot delegate that power or duty.
15 (4) A person exercising or performing a power or duty that
16 has been delegated to the person under this section is
17 taken to do so in accordance with the terms of the
18 delegation unless the contrary is shown.
19 (5) Nothing in this section limits the ability of the
20 Registrar to perform a function through an officer or
21 agent.
22 Subdivision 2 -- Determination of disputes by arbitration
23 182ZT. Application for arbitration
24 If a dispute has not been resolved by conciliation, a
25 party to the dispute may apply to the Registrar in
26 accordance with this Act and the arbitration rules for
27 determination of the dispute by arbitration.
page 27
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 7
1 182ZU. Acceptance of application
2 (1) An application for arbitration cannot be accepted by
3 the Registrar unless it is accompanied by --
4 (a) a certificate issued by the Director under
5 section 182H stating that no matter in dispute is
6 suitable for conciliation; or
7 (b) a certificate issued by a conciliation officer
8 under section 182O identifying the matter or
9 matters in dispute that have not been resolved
10 by conciliation.
11 (2) The Registrar may reject an application for arbitration
12 if it does not comply with the arbitration rules.
13 (3) Arbitration commences when an application for
14 arbitration is accepted by the Registrar.
15 182ZV. Registrar to allocate dispute
16 (1) When an application for arbitration is accepted the
17 Registrar is to allocate the dispute to which the
18 application relates to an arbitrator for determination.
19 (2) The Registrar may reallocate a dispute to another
20 arbitrator at any time.
21
22 7. Section 185 replaced
23 Delete section 185 and insert:
24
25 185. Arbitration process
26 (1) The arbitrator to whom a dispute is allocated is to
27 determine the matter or matters in dispute in
28 accordance with this Act and the arbitration rules.
page 28
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 8
1 (2) The arbitrator is not to attempt to resolve any matter in
2 dispute by conciliation.
3 (3) Subsection (2) applies even if there was no conciliation
4 of any matter in dispute because the Director issued a
5 certificate under section 182H.
6
7 8. Section 189 amended
8 (1) In section 189 delete "The" and insert:
9
10 (1) The
11
12 (2) At the end of section 189 insert:
13
14 (2) However subsection (1) does not prevent the arbitrator
15 from determining that a matter is beyond the scope of
16 the application for conciliation that preceded the
17 application for arbitration and should be the subject of
18 another application for conciliation.
19
20 9. Section 204A inserted
21 After section 203 insert:
22
23 204A. Evidence of communication between worker and
24 WorkCover WA employee
25 Evidence of any communication between --
26 (a) a worker; and
27 (b) a person employed by WorkCover WA and
28 acting in the course of that employment,
29 is not admissible in a proceeding before an arbitrator
30 unless, during the course of the proceeding, the worker
31 consents to the evidence being so admitted.
32
page 29
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 10
1 10. Section 211 amended
2 Delete section 211(2) and insert:
3
4 (2) An arbitrator may confirm, vary or revoke a direction
5 under section 182K(2) or (4) or 182L(2).
6
7 11. Sections 217A and 217B inserted
8 At the end of Part XI Division 5 Subdivision 1 insert:
9
10 217A. Arbitrator may review decision
11 (1) In this section --
12 new information means information relevant to a
13 decision that, although available to a party at the time
14 the decision was made, was not available to the
15 arbitrator and, in the opinion of the arbitrator, justifies
16 reconsideration of the matter.
17 (2) If new information becomes available after an
18 arbitrator makes a decision, the arbitrator may
19 reconsider the decision and --
20 (a) vary or revoke the decision previously made; or
21 (b) make any further decision,
22 as the arbitrator considers appropriate having regard to
23 the new information.
24 217B. Arbitration decisions not reviewable
25 (1) Except as otherwise provided by this Act a decision of
26 an arbitrator is final and binding on the parties and is
27 not subject to an appeal.
page 30
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 12
1 (2) A decision of an arbitrator or anything done under this
2 Act in the process of coming to a decision of an
3 arbitrator is not amenable to judicial review.
4
5 12. Part XII deleted
6 Delete Part XII.
7 13. Part XIII heading amended
8 In the heading to Part XIII delete "Questions of law and
9 appeals" and insert:
10
11 Appeals to District Court
12
13 14. Sections 245 and 246 deleted
14 Delete sections 245 and 246.
15 15. Section 247 amended
16 (1) Delete section 247(1) and insert:
17
18 (1) If written reasons for an arbitrator's decision under
19 Part XI in respect of a dispute are given to a party to
20 the dispute (whether as required by section 213(3) or
21 otherwise), the party may, with the leave of the District
22 Court, appeal to the District Court against the decision.
23
24 (2) In section 247(2):
25 (a) delete "Commissioner" (first occurrence) and insert:
26
27 District Court
28
page 31
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 16
1 (b) in paragraph (a)(ii) delete "Commissioner," and insert:
2
3 District Court,
4
5 (3) Delete section 247(3).
6 (4) In section 247(4) delete "making of the decision appealed
7 against." and insert:
8
9 day on which the written reasons for the decision
10 appealed against were given to the party making the
11 application.
12
13 (5) In section 247(5) delete "against." and insert:
14
15 against and, except as provided by this Part or
16 section 267, is to be conducted in accordance with the
17 rules of court of the District Court.
18
19 (6) In section 247(6) delete "Commissioner except with the leave of
20 the Commissioner." and insert:
21
22 District Court except with the leave of the District Court.
23
24 (7) In section 247(7) delete "Commissioner" (each occurrence) and
25 insert:
26
27 District Court
28
29 16. Sections 248 and 249 deleted
30 Delete sections 248 and 249.
page 32
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 17
1 17. Section 250 amended
2 (1) In section 250(1) delete "Commissioner" and insert:
3
4 District Court
5
6 (2) In section 250(2) delete "Commissioner," and insert:
7
8 District Court,
9
10 (3) After section 250(2) insert:
11
12 (3) This section does not limit the powers of the District
13 Court under other written laws.
14
15 18. Sections 251 to 253 deleted
16 Delete sections 251 to 253.
17 19. Section 254 replaced
18 Delete section 254 and insert:
19
20 254. Appeal to Court of Appeal by leave
21 Under the District Court of Western Australia Act 1969
22 section 79, an appeal may be made to the Court of
23 Appeal in respect of a judgment, order or determination
24 in proceedings in the District Court under this Part
25 but --
26 (a) the appeal must relate to a question of law; and
27 (b) leave to appeal must be obtained from the
28 Court of Appeal.
29
page 33
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 20
1 20. Section 267 replaced
2 Delete section 267 and insert:
3
4 267. Appeal costs
5 (1) The District Court is not to make an order for costs
6 against a worker on the ground that an appeal under
7 Part XIII was successful.
8 (2) If the appellant in an appeal under Part XIII is a worker
9 and is unsuccessful on the appeal, the District Court is
10 not to make an order for the payment of the appellant's
11 costs on the appeal by any other party to the appeal.
12
13 21. Part XVII deleted
14 Delete Part XVII.
15 22. Sections 293A and 293B inserted
16 After section 292 insert:
17
18 293A. Conciliation rules
19 (1) The Minister may make rules (the conciliation rules)
20 prescribing all matters that are required or permitted by
21 this Act to be prescribed by conciliation rules, or are
22 necessary or convenient to be prescribed by
23 conciliation rules for giving effect to the purposes of
24 this Act.
25 (2) Without limiting subsection (1), conciliation rules may
26 make provision for or with respect to --
27 (a) the organisation and management of the
28 business of the Conciliation Service; and
29 (b) records of the Conciliation Service; and
page 34
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Main amendments Division 1
s. 22
1 (c) the practice and procedure governing the
2 jurisdiction, functions and proceedings of
3 conciliation officers; and
4 (d) assessment of, and orders as to, costs as defined
5 in section 261; and
6 (e) the practice and procedure governing medical
7 assessment panels.
8 293B. Arbitration rules
9 (1) The Minister may make rules (the arbitration rules)
10 prescribing all matters that are required or permitted by
11 this Act to be prescribed by arbitration rules, or are
12 necessary or convenient to be prescribed by arbitration
13 rules for giving effect to the purposes of this Act.
14 (2) Without limiting subsection (1), arbitration rules may
15 make provision for or with respect to --
16 (a) the organisation and management of the
17 business of the Arbitration Service; and
18 (b) records of the Arbitration Service; and
19 (c) the practice and procedure governing the
20 jurisdiction, functions and proceedings of
21 arbitrators; and
22 (d) assessment of, and orders as to, costs as defined
23 in section 261; and
24 (e) limiting the number of medical reports in
25 connection with a claim or any aspect of a
26 claim and, in particular, limiting the number of
27 medical reports that may be admitted in
28 evidence in a proceeding before an arbitrator;
29 and
30 (f) limiting the number of expert witnesses that
31 may be called by any party in a proceeding
32 before an arbitrator and otherwise restricting
33 the calling of expert witnesses by a party; and
page 35
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 1 Main amendments
s. 23
1 (g) the practice and procedure governing medical
2 assessment panels, approved medical specialist
3 panels and specialised retraining assessment
4 panels.
5
6 23. Section 293 amended
7 (1) Delete section 293(1) and (2) and insert:
8
9 (1) In this section --
10 rule means a conciliation rule or an arbitration rule
11 and rules has a corresponding meaning.
12
13 (2) In section 293(3) delete "DRD Rule" and insert:
14
15 rule
16
17 (3) In section 293(4) delete "DRD".
18 Note: The heading to amended section 293 is to read:
19 General provisions about rules
20 24. Section 294 replaced
21 Delete section 294 and insert:
22
23 294. Practice notes
24 (1) The Director may issue conciliation practice notes
25 about the practice and procedure of conciliation
26 officers.
27 (2) The Director is to give the Minister a copy of each
28 conciliation practice note the Director issues as soon as
29 practicable after issuing it.
page 36
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Consequential and miscellaneous amendments Division 2
s. 25
1 (3) A conciliation practice note is not a conciliation rule
2 and does not form part of the conciliation rules.
3 (4) The Registrar may issue arbitration practice notes
4 about the practice and procedure of arbitrators.
5 (5) The Registrar is to give the Minister a copy of each
6 arbitration practice note the Registrar issues as soon as
7 practicable after issuing it.
8 (6) An arbitration practice note is not an arbitration rule
9 and does not form part of the arbitration rules.
10
11 Division 2 -- Consequential and miscellaneous amendments
12 25. Section 5 amended
13 (1) In section 5(1) delete the definitions of:
14 arbitrator
15 Commissioner
16 Director
17 dispute resolution authority
18 DRD
19 DRD Rules
20 officer of the DRD
21 (2) In section 5(1) insert in alphabetical order:
22
23 application for conciliation means an application
24 under section 182E;
25 arbitration rules means the rules made under
26 section 293B;
27 Arbitration Service means the Workers' Compensation
28 Arbitration Service established under section 182ZO;
page 37
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 2 Consequential and miscellaneous amendments
s. 26
1 arbitrator means an officer of WorkCover WA
2 designated or engaged under section 182ZQ as an
3 arbitrator;
4 conciliation officer means a person designated or
5 engaged under section 182B as a conciliation officer;
6 conciliation rules means the rules made under
7 section 293A;
8 Conciliation Service means the Workers'
9 Compensation Conciliation Service established under
10 section 181;
11 Director means the officer of WorkCover WA
12 designated under section 182A as the Director,
13 Conciliation;
14 dispute resolution authority means the Director, the
15 Registrar, a conciliation officer or an arbitrator;
16 party to a dispute means the worker, the employer or
17 the insurer of the employer;
18 Registrar means the officer of WorkCover WA
19 designated under section 182ZP as the Registrar,
20 Arbitration;
21
22 26. Section 67 amended
23 In section 67(1)(a):
24 (a) delete "an arbitrator,";
25 (b) delete "makes an order" and insert:
26
27 an order is made under Part XI
28
page 38
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Consequential and miscellaneous amendments Division 2
s. 27
1 27. Section 76 amended
2 In section 76(6):
3 (a) delete "Commissioner who shall" and insert:
4
5 Registrar who shall allocate it to an arbitrator to
6
7 (b) delete "Commissioner thinks" and insert:
8
9 arbitrator thinks
10
11 28. Section 91 amended
12 In section 91(2) delete "DRD Rules," and insert:
13
14 conciliation rules and the arbitration rules,
15
16 29. Section 93D amended
17 Delete section 93D(9) and (10).
18 30. Section 106 amended
19 (1) In section 106(3):
20 (a) after paragraph (b) insert:
21
22 (c) the costs and expenses incurred in the operation
23 and administration of the District Court in
24 dealing with appeals under Part XIII; and
25
26 (b) in paragraph (e) delete "WorkCover WA and the DRD
27 for carrying out their respective" and insert:
28
29 WorkCover WA for carrying out its
30
page 39
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 2 Consequential and miscellaneous amendments
s. 31
1 (2) After section 106(3) insert:
2
3 (4) The amount of the costs and expenses referred to in
4 subsection (3)(c) is to be --
5 (a) determined in the manner approved by the
6 Treasurer after consultation with the chief
7 executive officer of WorkCover WA and the
8 chief executive officer of the department
9 principally assisting the Minister in the
10 administration of the District Court of Western
11 Australia Act 1969; and
12 (b) credited to the Consolidated Account.
13
14 31. Section 144 inserted
15 At the beginning of Part VII Division 1 insert:
16
17 144. Term used: relevant authority
18 In this Division --
19 relevant authority means --
20 (a) in relation to conciliation: the Director; or
21 (b) in relation to arbitration: the Registrar.
22
23 32. Section 145A amended
24 (1) In section 145A(1) delete "210" and insert:
25
26 182ZD or 210, Schedule 1 clause 18A(2ab) or
27 Schedule 7 clause 6
28
page 40
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Consequential and miscellaneous amendments Division 2
s. 33
1 (2) In section 145A(2) after "under section" insert:
2
3 182ZD or
4
5 33. Section 145B amended
6 In section 145B(1) delete "Director" and insert:
7
8 chief executive officer
9
10 34. Section 145C amended
11 In section 145C(1) and (4) delete "Director" and insert:
12
13 relevant authority
14
15 35. Section 145D amended
16 In section 145D(5) delete "an arbitrator" (each occurrence) and
17 insert:
18
19 the relevant authority
20
21 36. Section 145E amended
22 (1) In section 145E(3):
23 (a) delete "Director," and insert:
24
25 relevant authority,
26
page 41
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 2 Consequential and miscellaneous amendments
s. 37
1 (b) delete "Director within" and insert:
2
3 relevant authority within
4
5 (2) In section 145E(4) delete "Director" (each occurrence) and
6 insert:
7
8 relevant authority
9
10 37. Section 145F amended
11 In section 145F(1) delete "Director" (each occurrence) and
12 insert:
13
14 relevant authority
15
16 38. Section 146F amended
17 In section 146F(6) and (7) delete "Director" and insert:
18
19 chief executive officer
20
21 39. Section 146M amended
22 (1) In section 146M(1) delete "an arbitrator" (each occurrence) and
23 insert:
24
25 the Registrar
26
27 (2) In section 146M(2) delete "An arbitrator" and insert:
28
29 The Registrar
30
page 42
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Consequential and miscellaneous amendments Division 2
s. 40
1 40. Section 146S amended
2 In section 146S(1) delete "Director" (each occurrence) and
3 insert:
4
5 chief executive officer
6
7 41. Section 176 amended
8 In section 176(2) delete "Part or Part XII." and insert:
9
10 Part.
11
12 42. Section 180 amended
13 In section 180(4):
14 (a) delete "DRD Rules and" and insert:
15
16 conciliation rules or arbitration rules and
17
18 (b) delete "DRD Rules." and insert:
19
20 relevant rules.
21
22 43. Section 182 amended
23 In section 182(1) delete "is accepted by the Director" and insert:
24
25 for arbitration is accepted
26
page 43
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 2 Consequential and miscellaneous amendments
s. 44
1 44. Section 183 amended
2 Delete section 183(1) and insert:
3
4 (1) If an application for arbitration is accepted a party to
5 the dispute must comply with the provisions of the
6 arbitration rules as to --
7 (a) the documents, material and information that
8 the party must provide to other parties and the
9 Registrar; and
10 (b) the time or times at which, and manner in
11 which, the documents, material and information
12 must be provided.
13
14 45. Section 184 deleted
15 Delete section 184.
16 46. Sections 186 and 187 deleted
17 Delete sections 186 and 187.
18 47. Part XI Division 4 heading deleted and Part XI Division 4
19 Subdivision 3 heading inserted
20 Delete the heading to Part XI Division 4 and insert:
21
22 Subdivision 3 -- Practice and procedure
23
24 48. Section 193 amended
25 In section 193(3) delete "a dispute resolution authority" and
26 insert:
27
28 the Registrar or an arbitrator
29
page 44
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Consequential and miscellaneous amendments Division 2
s. 49
1 49. Section 194 amended
2 In section 194(1) delete "Part)," and insert:
3
4 Division),
5
6 50. Section 195 amended
7 Delete section 195(3) and insert:
8
9 (3) A prohibited person cannot represent a party.
10 (4A) In subsection (3) --
11 prohibited person has the meaning given in the Legal
12 Profession Act 2008 section 18(1) except that it does
13 not include a person whose name has been removed
14 from an Australian roll (as defined in section 3 of that
15 Act) at the person's own request.
16
17 51. Section 196 replaced
18 Delete section 196 and insert:
19
20 196. Litigation guardian
21 (1) The arbitration rules may provide that, if a child is a
22 party or potential party to a proceeding or proposed
23 proceeding, an arbitrator may appoint a litigation
24 guardian to act on the child's behalf.
25 (2) The arbitration rules may provide that, if a party to a
26 dispute is under a legal disability (otherwise than
27 because of being a child), an arbitrator may adjourn or
28 defer the proceeding or proposed proceeding until a
29 litigation guardian is appointed to act on the party's
page 45
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 2 Consequential and miscellaneous amendments
s. 52
1 behalf, whether under the Guardianship and
2 Administration Act 1990 or otherwise.
3
4 52. Section 198 amended
5 (1) Delete section 198(1).
6 (2) In section 198(2) and (3) delete "conference or".
7 (3) In section 198(4):
8 (a) after "practitioner" (each occurrence) insert:
9
10 or registered agent
11
12 (b) delete "conference or".
13 (4) In section 198(6) delete "a conference or".
14 53. Section 199 amended
15 (1) In section 199 delete "and conferences".
16 (2) In section 199(a) delete "or conference".
17 54. Section 204 amended
18 In section 204(1) delete "Part" and insert:
19
20 Division
21
22 55. Section 205 amended
23 In section 205(1) and (3) delete "Part" and insert:
24
25 Division
26
page 46
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Consequential and miscellaneous amendments Division 2
s. 56
1 56. Part XI Division 5 heading deleted and Part XI Division 4
2 Subdivision 4 heading inserted
3 Delete the heading to Part XI Division 5 and insert:
4
5 Subdivision 4 -- Decisions
6
7 57. Part XI Division 5 Subdivision 1 heading deleted
8 Delete the heading to Part XI Division 5 Subdivision 1.
9 58. Part XI Division 5 Subdivision 2 heading deleted
10 Delete the heading to Part XI Division 5 Subdivision 2.
11 59. Section 218 amended
12 In section 218(1) and (4) delete "Part" and insert:
13
14 Division
15
16 60. Part XI Division 5 Subdivision 3 heading deleted
17 Delete the heading to Part XI Division 5 Subdivision 3.
18 61. Part XI Division 6 heading deleted and Part XI Division 4
19 Subdivision 5 heading inserted
20 Delete the heading to Part XI Division 6 and insert:
21
22 Subdivision 5 -- Miscellaneous
23
page 47
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 2 Consequential and miscellaneous amendments
s. 62
1 62. Section 255 amended
2 (1) Delete section 255(2) and insert:
3
4 (2A) Without limiting the application of subsection (1) it
5 extends to a decision of a conciliation officer to --
6 (a) make a requirement under section 182J; or
7 (b) give a direction under section 182K or 182L; or
8 (c) issue an order under section 182N.
9 (2) Subsection (1) does not apply if, or to the extent that --
10 (a) the person is excused by section 182ZB or 206
11 from complying with the decision; or
12 (b) the person has a reasonable excuse (other than
13 an excuse mentioned in section 182Y(1),
14 182ZA, 204(1) or 205) for failing to comply
15 with the decision.
16
17 (2) In section 255(3)(a) after "Director" insert:
18
19 or Registrar
20
21 63. Section 256 replaced
22 Delete section 256 and insert:
23
24 256. Failure to comply with summons or requirement to
25 attend
26 A person must not, without reasonable excuse, fail to
27 comply with --
28 (a) a summons issued by the Registrar or an
29 arbitrator; or
page 48
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Consequential and miscellaneous amendments Division 2
s. 64
1 (b) a requirement made by a conciliation officer
2 under section 182J(a) or (b).
3 Penalty: a fine of $2 000.
4
5 64. Section 257 amended
6 In section 257:
7 (a) delete "a dispute resolution authority" and insert:
8
9 the Registrar or an arbitrator
10
11 (b) in paragraph (a) delete "the dispute resolution authority"
12 and insert:
13
14 the Registrar or an arbitrator
15
16 (c) in paragraph (b) delete "a dispute resolution authority"
17 and insert:
18
19 the Registrar or an arbitrator
20
21 65. Section 259 amended
22 (1) At the beginning of section 259 insert:
23
24 (1) In this section --
25 hearing includes --
26 (a) a meeting with a conciliation officer; and
27 (b) a conciliation conference.
28
page 49
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 2 Consequential and miscellaneous amendments
s. 66
1 (2) In section 259 delete "A person" and insert:
2
3 (2) A person
4
5 66. Section 260 deleted
6 Delete section 260.
7 67. Section 268 amended
8 In section 268(2)(c) delete "an arbitrator or another officer of
9 the DRD." and insert:
10
11 a conciliation officer or an arbitrator.
12
13 68. Section 292 amended
14 In section 292(1)(b):
15 (a) delete "DRD" and insert:
16
17 Conciliation Service and the Arbitration Service
18
19 (b) delete "DRD;" and insert:
20
21 Conciliation Service and the Arbitration Service;
22
23 69. Section 299 amended
24 (1) In section 299(a) delete "Commissioner, an arbitrator or the
25 Director;" and insert:
26
27 Director, the Registrar, a conciliation officer or an arbitrator;
28
page 50
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Consequential and miscellaneous amendments Division 2
s. 70
1 (2) In section 299(aa) delete "Commissioner, an arbitrator or the
2 Director," and insert:
3
4 Director, the Registrar, a conciliation officer or an arbitrator,
5
6 70. Section 304 amended
7 Delete section 304(1)(d) and insert:
8
9 (d) a person engaged under section 182B(2) as a
10 conciliation officer or under section 182ZQ(2)
11 as an arbitrator; and
12
13 71. Section 305 amended
14 Delete section 305(2)(a) and insert:
15
16 (a) a conciliation officer when performing the
17 functions of a conciliation officer;
18
19 72. Section 325 inserted
20 At the end of Part XX insert:
21
22 325. Transitional provisions
23 (1) Schedule 8 sets out transitional provisions in relation to
24 amendments to this Act.
25 (2) Schedule 8 does not affect the operation of the
26 Interpretation Act 1984 Part V.
27 (3) If Schedule 8 does not provide sufficiently for a matter
28 or issue of a transitional nature that arises as a result of
29 amendments to this Act, the Governor may make
page 51
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 2 Consequential and miscellaneous amendments
s. 72
1 regulations prescribing all matters that are required,
2 necessary or convenient to be prescribed for providing
3 for the matter or issue.
4 (4) If in the opinion of the Minister an anomaly arises in
5 the carrying out of any provision --
6 (a) of Schedule 8; or
7 (b) of the Interpretation Act 1984 as it applies to
8 the amendments made to this Act,
9 the Governor may by regulation --
10 (c) modify that provision to remove that anomaly;
11 and
12 (d) make such provision as is necessary or
13 expedient to carry out the intention of that
14 provision.
15 (5) If regulations made under subsection (3) or (4) provide
16 that a state of affairs specified or described in the
17 regulations is to be taken to have existed, or not to have
18 existed, on and from a day that is earlier than the day
19 on which the regulations are published in the Gazette
20 but not earlier than the commencement day, the
21 regulations have effect according to their terms.
22 (6) If regulations contain a provision referred to in
23 subsection (5), the provision does not operate so as --
24 (a) to affect, in a manner prejudicial to any person
25 (other than the State or an authority of the
26 State), the rights of that person existing before
27 the day of publication of those regulations; or
28 (b) to impose liabilities on any person (other than
29 the State or an authority of the State) in respect
30 of anything done or omitted to be done before
31 the day of publication of those regulations.
32
page 52
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Consequential and miscellaneous amendments Division 2
s. 73
1 73. Schedule 7 amended
2 In Schedule 7 clause 6:
3 (a) delete "permitted by section 145A to do so, an arbitrator may
4 refer" and insert:
5
6 section 145A so permits,
7
8 (b) delete "loss, for" and insert:
9
10 loss, may be referred for
11
12 74. Schedule 8 replaced
13 Delete Schedule 8 and insert:
14
15 Schedule 8 -- Transitional provisions
16 [s. 325]
17 1. Terms used
18 In this Division --
19 amended provisions means this Act as amended by the
20 amendment Act;
21 amendment Act means the Workers' Compensation and
22 Injury Management Amendment Act 2011;
23 commencement day means the day of the coming into
24 operation of section 6 of the amendment Act;
25 Commissioner has the meaning given in section 5(1) of the
26 former provisions;
27 dispute has the meaning given in section 176(1);
page 53
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 2 Consequential and miscellaneous amendments
s. 74
1 DRD has the meaning given in section 5(1) of the former
2 provisions;
3 DRD Rules has the meaning given in section 5(1) of the
4 former provisions;
5 former provisions means this Act as enacted before the
6 commencement day;
7 pending arbitration proceeding means a dispute --
8 (a) in respect of which an application has been made
9 under section 181 of the former provisions; and
10 (b) which has not been determined by an arbitrator
11 before the commencement day;
12 pending Court of Appeal matter means --
13 (a) a case stated to the Court of Appeal under
14 section 251 of the former provisions; or
15 (b) an appeal to the Court of Appeal under section 254
16 of the former provisions (including an application
17 under that section for leave to appeal),
18 which has not been determined by the Court of Appeal
19 before the commencement day;
20 pending Part XII application means an application under
21 Part XII of the former provisions which has not been
22 determined by an arbitrator before the commencement day;
23 pending Part XIII matter means --
24 (a) a reference of a question of law to the
25 Commissioner under section 246 of the former
26 provisions; or
27 (b) an appeal to the Commissioner under section 247 of
28 the former provisions (including an application
29 under that section for leave to appeal),
30 which has not been determined by the Commissioner before
31 the commencement day.
32 2. Pending arbitration proceedings
33 (1) Subject to subclause (2), a pending arbitration proceeding is
34 to be dealt with and determined under Part XI Division 4 of
35 the amended provisions.
page 54
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Consequential and miscellaneous amendments Division 2
s. 74
1 (2) If the Registrar certifies in writing that a pending arbitration
2 proceeding in relation to a dispute has not been the subject
3 of conciliation under section 185 of the former provisions
4 before the commencement day, the dispute is taken to be the
5 subject of an application for conciliation under the amended
6 provisions.
7 (3) The Director may give directions for the purpose of dealing
8 with issues arising in relation to a pending arbitration
9 proceeding to which subclause (2) applies.
10 (4) Directions given under subclause (3) may modify the
11 amended provisions, or the conciliation rules or the
12 regulations, to such extent as is necessary or expedient to
13 enable the dispute to be resolved by conciliation under
14 Part XI Division 3 of the amended provisions.
15 3. Pending Part XII applications
16 (1) A pending Part XII application is to continue to be dealt
17 with and determined by an arbitrator as if the amending Act
18 had not been enacted.
19 (2) Without limiting subclause (1), Part XII of the former
20 provisions and the DRD Rules continue to have effect in
21 relation to pending Part XII applications despite sections 12
22 and 77 of the amending Act.
23 4. Records
24 (1) In this clause --
25 DRD records means records of the DRD relating to pending
26 arbitration proceedings and pending Part XII applications.
27 (2) The Director and the Registrar may make such arrangements
28 for the disposition of DRD records between the Conciliation
29 Service and the Arbitration Service as are necessary to
30 facilitate the operation of clauses 2 and 3.
page 55
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 2 Consequential and miscellaneous amendments
s. 74
1 5. Pending Part XIII matters
2 (1) A pending Part XIII matter is to continue to be dealt with
3 and determined by the Commissioner as if the amending Act
4 had not been enacted.
5 (2) Without limiting subclause (1), sections 245 to 253 of the
6 former provisions and the DRD Rules continue to have
7 effect in relation to pending Part XIII matters despite
8 sections 13 to 18 and 77 of the amending Act.
9 6. Pending Court of Appeal matters
10 (1) A pending Court of Appeal matter is to continue to be dealt
11 with and determined by the Court of Appeal as if the
12 amending Act had not been enacted.
13 (2) Without limiting subclause (1), section 254(3) to (6) of the
14 former provisions continue to have effect in relation to
15 pending Court of Appeal matters despite section 19 of the
16 amending Act.
17 7. Further Court of Appeal matters
18 (1) Despite section 19 of the amending Act, section 254 of the
19 former provisions --
20 (a) continues to apply to a decision made by the
21 Commissioner under Part XIII of the former
22 provisions before the commencement day as if the
23 amending Act had not been enacted; and
24 (b) applies to a decision made by the Commissioner
25 after the commencement day in a pending Part XIII
26 matter dealt with under clause 5.
27 (2) The following matters may be dealt with and determined by
28 the Court of Appeal as if the amending Act had not been
29 enacted --
30 (a) a case stated to the Court of Appeal under
31 section 251 of the former provisions in relation to a
32 question of law arising in a pending Part XIII matter
33 that is being dealt with under clause 5;
page 56
Workers' Compensation and Injury Management Amendment Bill 2011
Amendments about dispute resolution Part 2
Consequential and miscellaneous amendments Division 2
s. 75
1 (b) an appeal to the Court of Appeal under section 254
2 of the former provisions as continued or applied by
3 subclause (1)(a) or (b).
4 8. Continuation of Commissioner's appointment
5 Despite section 21 of the amending Act the appointment of
6 the Commissioner and Part XVII Division 2 of the former
7 provisions continue to have effect for the purposes of --
8 (a) clause 5(1); and
9 (b) the receipt and reconsideration of matters sent back
10 under section 254(3)(c) of the former provisions in
11 a pending Court of Appeal matter or a matter
12 mentioned in clause 7(2)(b).
13
14 75. Various references to "Director" amended
15 In the provisions listed in the Table delete "Director" and insert:
16
17 Registrar
18
19 Table
s. 146K(1) s. 146O(2), (3) and (8) (each
occurrence)
s. 146T(1) and (4) s. 146V(3) and (4) (each
occurrence)
s. 182(1)(c) and (2) s. 202
s. 219(1)(a)
page 57
Workers' Compensation and Injury Management Amendment Bill 2011
Part 2 Amendments about dispute resolution
Division 3 Workers' Compensation (DRD) Rules 2005 repealed
s. 76
1 76. Various references to "DRD Rules" amended
2 In the provisions listed in the Table delete "DRD Rules" and
3 insert:
4
5 arbitration rules
6
7 Table
s. 182(4) s. 183(7)
s. 188(2)(a) s. 193(5)
s. 195(5) s. 199(b)
s. 200(1) and (2) s. 213(1)(a) and (3)(a)
8
9 Division 3 -- Workers' Compensation (DRD)
10 Rules 2005 repealed
11 77. DRD Rules repealed
12 The Workers' Compensation (DRD) Rules 2005 made before
13 the coming into operation of section 23 under the Workers'
14 Compensation and Injury Management Act 1981 section 293 are
15 repealed.
page 58
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 78
1 Part 3 -- Other amendments
2 Division 1 -- Amendments
3 78. Long title amended
4 In the long title delete "and a Dispute Resolution
5 Directorate," and insert:
6
7 to provide for the resolution of disputes,
8
9 79. Section 3 amended
10 Delete section 3(a), (b), (ba) and (c) and insert:
11
12 (a) to establish a workers' compensation scheme
13 for Western Australia dealing with --
14 (i) compensation payable to or in respect of
15 workers who suffer an injury; and
16 (ii) the management of workers' injuries in
17 a manner directed at enabling injured
18 workers to return to work; and
19 (iii) specialised retraining programs for
20 injured workers; and
21 (iv) ancillary and related matters;
22 and
23 (b) to establish WorkCover WA to oversee the
24 operation of the workers' compensation
25 scheme; and
26 (c) to provide for the resolution of disputes under
27 this Act;
28
page 59
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 80
1 80. Section 5 amended
2 (1) In section 5(1) in the definition of industrial award delete
3 paragraph (d) and insert:
4
5 (d) an award, order, agreement or other
6 instrument --
7 (i) of a class prescribed by the regulations;
8 and
9 (ii) under a law of the State or the
10 Commonwealth prescribed by the
11 regulations,
12
13 (2) In section 5(1) in the definition of relevant employment
14 paragraph (b) delete "pneumoconiosis or mesothelioma," and
15 insert:
16
17 pneumoconiosis, mesothelioma, lung cancer or
18 pleural plaques (diffuse pleural fibrosis),
19
20 (3) In section 5(1) in the definition of worker:
21 (a) in the first paragraph of the definition delete "1892, or
22 except as hereinafter provided in this definition a
23 member of the employer's family dwelling in his
24 house;" and insert:
25
26 1892;
27
28 (b) in the second paragraph of the definition delete the
29 passage that begins with "injury, and any" and continues
30 to the end of the paragraph and insert:
31
32 injury;
33
page 60
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 81
1 81. Section 10A amended
2 (1) In section 10A(2) after "unless" insert:
3
4 and to the extent that
5
6 (2) In section 10A(4) delete "Act -- " and insert:
7
8 Act other than section 174(1AA) --
9
10 82. Section 24A amended
11 (1) In section 24A(2)(b)(ii):
12 (a) delete "where the worker has reached the age of
13 65 years or on the worker's retirement from work before
14 that age,";
15 (b) delete "hearing." and insert:
16
17 hearing and at the time of the
18 subsequent election the worker is retired
19 from work.
20
21 (2) In section 24A(3)(a) delete "work before attaining the age of
22 65 years;" and insert:
23
24 work; and
25
26 (3) In section 24A(4) delete "years." and insert:
27
28 years if the hearing loss occurred before the day on
29 which the Workers' Compensation and Injury
page 61
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 83
1 Management Amendment Act 2011 section 82 comes
2 into operation.
3
4 83. Section 31E amended
5 (1) In section 31E(3)(b)(ii) --
6 (a) delete "where the worker has reached the age of
7 65 years or on the worker's retirement from work before
8 that age,";
9 (b) delete "hearing." and insert:
10
11 hearing and at the time of the
12 subsequent election the worker is retired
13 from work.
14
15 (2) In section 31E(4)(a) delete "work before attaining the age of
16 65 years; and" and insert:
17
18 work; and
19
20 (3) In section 31E(5) delete "years." and insert:
21
22 years if the hearing loss occurred before the day on
23 which the Workers' Compensation and Injury
24 Management Amendment Act 2011 section 83 comes
25 into operation.
26
27 84. Section 32 amended
28 In section 32 delete "or lung cancer," and insert:
29
30 lung cancer, or pleural plaques (diffuse pleural fibrosis),
31
page 62
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 85
1 85. Section 33 amended
2 In section 33:
3 (a) in paragraph (c) delete "lung cancer," and insert:
4
5 lung cancer; or
6
7 (b) after paragraph (c) insert:
8
9 (d) on or after 19 September 2009, pleural plaques
10 (diffuse pleural fibrosis),
11
12 (c) delete "or lung cancer," and insert:
13
14 lung cancer or pleural plaques (diffuse pleural fibrosis),
15
16 Note: The heading to amended section 33 is to read:
17 Pneumoconiosis, mesothelioma, lung cancer or pleural plaques
18 86. Section 38 amended
19 In section 38(1):
20 (a) in paragraph (a) delete "mesothelioma or lung cancer?"
21 and insert:
22
23 mesothelioma, lung cancer or pleural plaques
24 (diffuse pleural fibrosis)?
25
26 (b) in paragraph (c)(iii) delete "cancer," and insert:
27
28 cancer; or
29
page 63
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 87
1 (c) after paragraph (c)(iii) insert:
2
3 (iv) pleural plaques (diffuse pleural
4 fibrosis),
5
6 (d) after each of subparagraphs (i) and (ii) insert:
7
8 or
9
10 87. Section 41 amended
11 In section 41(1) delete "or lung cancer," and insert:
12
13 lung cancer or pleural plaques (diffuse pleural fibrosis),
14
15 88. Section 56 amended
16 (1) In section 56 delete "Subject" and insert:
17
18 (1) Subject to subsection (2) and
19
20 (2) At the end of section 56 insert:
21
22 (2) An entitlement of a worker to weekly payments of
23 compensation for incapacity for work resulting from an
24 injury under this Act is not to cease under
25 subsection (1) if the injury occurs on or after the date
26 on which the Workers' Compensation and Injury
27 Management Amendment Act 2011 section 88 comes
28 into operation.
29
page 64
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 89
1 89. Section 57 amended
2 In section 57 delete "18A(1c)." and insert:
3
4 18A(1CA) and (1C).
5
6 90. Section 57A amended
7 (1) In section 57A(1):
8 (a) in paragraph (a) delete "has been" and insert:
9
10 is
11
12 (b) after paragraph (a) insert:
13
14 (ba) the employer is indemnified by a policy of
15 insurance against liability to pay the
16 compensation claimed; and
17
18 (c) in paragraph (b) delete "has served" and insert:
19
20 serves
21
22 (d) in paragraph (b)(ii) delete "been served," and insert:
23
24 been served.
25
26 (e) delete "and the employer is indemnified by a policy of
27 insurance against his liability to pay the compensation
28 claimed."
page 65
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 90
1 (2) After section 57A(1) insert:
2
3 (2A) In the circumstances mentioned in subsection (1),
4 before the expiration of 5 full working days the
5 employer must claim under and in accordance with his
6 or her policy of insurance in respect of liability to pay
7 the compensation claimed.
8 Penalty: a fine of $1 000.
9
10 (3) In section 57A(2):
11 (a) delete "3 full working days" and insert:
12
13 5 full working days
14
15 (b) delete "3 working days" and insert:
16
17 5 working days
18
19 (4) In section 57A(7):
20 (a) delete "as soon as practicable" and insert:
21
22 not later than 14 days
23
24 (b) in paragraph (a) delete "insurer; and" and insert:
25
26 insurer; or
27
28 (c) in paragraph (b) delete "the worker has complied with
29 the requirements of sections 178 and 179 or,";
page 66
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 91
1 (d) in paragraph (b) delete "subsection notwithstanding that
2 those requirements have not been complied with," and
3 insert:
4
5 subsection,
6
7 (5) After section 57A(7) insert:
8
9 (8A) An employer who fails to make a weekly payment by
10 the due date under subsection (7) commits an offence.
11 Penalty for each weekly payment not made when due:
12 a fine of $2 000.
13
14 91. Section 57B amended
15 After section 57B(7) insert:
16
17 (8) An employer who fails to make a weekly payment by
18 the due date under subsection (2), (4) or (7) commits an
19 offence.
20 Penalty for each weekly payment not made when due:
21 a fine of $2 000.
22
23 92. Section 58 amended
24 In section 58(1)(a) delete "17 days" and insert:
25
26 19 days
27
page 67
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 93
1 93. Section 67 amended
2 (1) Delete section 67(5) and insert:
3
4 (5) Where an order is made under subsection (1)(a) or (4),
5 or an agreement is made under subsection (1)(b) and
6 registered under Division 7, for the redemption of a
7 liability for incapacity, from --
8 (a) the date specified in the order or agreement as
9 the date on which weekly payments of
10 compensation are to cease; or
11 (b) if no such date is specified, the date of the order
12 or the date of registration of the agreement, as
13 the case may be,
14 the worker is not entitled to further weekly payments of
15 compensation for incapacity, and clauses 9, 10, 17, 18,
16 18A and 19 cease to apply to the worker.
17
18 (2) After section 67(6) insert:
19
20 (7) Where an order is made under subsection (1)(a) or (4),
21 or an agreement is made under subsection (1)(b) and
22 registered under Division 7, for the redemption of a
23 liability for incapacity the employer must pay or cause
24 to be paid the lump sum within 14 days after the date
25 referred to in subsection (5).
26 Penalty: a fine of $2 000.
27
28 94. Section 71 amended
29 (1) In section 71:
30 (a) delete "Where" and insert:
31
32 (1) Where
33
page 68
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 94
1 (b) delete "and to make" and insert:
2
3 and, subject to subsection (3), to make
4
5 (2) At the end of section 71 insert:
6
7 (2) Without limiting the orders that may be made under
8 subsection (1), the arbitrator may, instead of making an
9 order for a refund, order any person who the arbitrator
10 determines was liable for the whole or any part of the
11 compensation or expenses to reimburse the person who
12 paid the compensation or expenses.
13 (3) If the payment of compensation or expenses was in
14 accordance with an order of an arbitrator, the arbitrator
15 hearing and determining an application under
16 subsection (1) may make an order for a refund only if
17 satisfied that the claim for the payment was fraudulent
18 or made without proper justification.
19 (4) If --
20 (a) the arbitrator makes or, apart from
21 subsection (3), would have made an order for a
22 refund of an amount of compensation or
23 expenses; or
24 (b) makes an order under subsection (2) in relation
25 to such an amount,
26 the amount is to be excluded from any determinations
27 of the claims experience of the employer for the
28 purposes of calculating the premium payable by the
29 employer for a policy of insurance.
30
page 69
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 95
1 95. Section 83 amended
2 (1) In section 83(1) delete "award or certified agreement as those
3 terms are defined in the Workplace Relations Act 1996 of the
4 Commonwealth," and insert:
5
6 prescribed Commonwealth award or agreement,
7
8 (2) After section 83(1) insert:
9
10 (2A) In subsection (1) --
11 prescribed Commonwealth award or agreement
12 means an award, order, agreement or other
13 instrument --
14 (a) of a class prescribed by the regulations; and
15 (b) under a law of the Commonwealth prescribed
16 by the regulations.
17
18 96. Section 93K amended
19 Delete section 93K(4)(c) and "and" after it and insert:
20
21 (c) court proceedings seeking the damages are
22 commenced after the Director gives the worker
23 written notice that the Director has registered
24 the election; and
25
26 97. Section 100 replaced
27 Delete section 100 and insert:
28
29 100. Functions of WorkCover WA
30 The functions of WorkCover WA are to ensure the
31 efficient and effective operation of the workers'
page 70
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 97
1 compensation scheme established by this Act and
2 without limiting the generality of the foregoing --
3 (a) to monitor compliance with the workers'
4 compensation scheme by employers, insurers
5 and others participating in or affected by the
6 workers' compensation scheme; and
7 (b) to control and administer the General Account
8 and the Trust Account; and
9 (c) to promote and co-ordinate the management
10 and treatment of accidents, injuries, losses of
11 functions and diseases in respect of which
12 compensation may be payable under this Act;
13 and
14 (d) to fix insurance premium rates and perform the
15 related functions conferred upon it by Part VIII;
16 and
17 (e) to resolve or assist in resolving disputes under
18 this Act through conciliation and arbitration;
19 and
20 (f) to obtain from insurers, self insurers and others
21 who participate in or provide services in
22 connection with the workers' compensation
23 scheme data enabling WorkCover WA to
24 compile and record such statistics, records and
25 reports as it considers necessary or desirable for
26 the operation of the workers' compensation
27 scheme and administration of this Act; and
28 (g) to review the sufficiency of the data provided to
29 WorkCover WA by insurers, self insurers and
30 others who participate in or provide services in
31 connection with the workers' compensation
32 scheme, and whether or not criteria developed
33 by WorkCover WA or prescribed by the
34 regulations for assessing the performance of
35 those persons are being met; and
page 71
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 98
1 (h) to promote awareness of and disseminate
2 information about the workers' compensation
3 scheme; and
4 (i) to undertake research to advance or support the
5 purposes of the Act or the performance of the
6 other functions of WorkCover WA; and
7 (j) to promote the prevention of accidents, injuries,
8 losses of functions, and diseases of a kind in
9 respect of which compensation may be payable
10 under this Act; and
11 (k) to advise the Minister on --
12 (i) matters to do with insurance that is
13 required by this Act; and
14 (ii) WorkCover WA's functions under this
15 Act; and
16 (iii) the policy to be followed in the State
17 with regard to workers' compensation;
18 and
19 (iv) any other matter referred by the
20 Minister to WorkCover WA for its
21 advice.
22
23 98. Section 101 amended
24 After section 101(c) insert:
25
26 (caa) to effect contracts of insurance providing
27 indemnity against liability to make payments
28 out of moneys standing to the credit of the
29 General Account; and
30
page 72
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 99
1 99. Section 106 amended
2 (1) In section 106(2):
3 (a) in paragraph (d) delete "1980." and insert:
4
5 1980; and
6
7 (b) after paragraph (d) insert:
8
9 (e) the proceeds of any insurance policy effected
10 under section 101(caa).
11
12 (2) After section 106(3)(da) insert:
13
14 (db) the premiums due under any insurance policy
15 effected under section 101(caa); and
16
17 100. Section 146H amended
18 Delete section 146H(4).
19 101. Section 151 amended
20 In section 151(a)(iii) delete "pneumoconiosis and
21 mesothelioma" and insert:
22
23 pneumoconiosis, mesothelioma, lung
24 cancer and pleural plaques (diffuse
25 pleural fibrosis)
26
page 73
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 102
1 102. Section 155E inserted
2 After section 155D insert:
3
4 155E. Notice of requirements of sections 155C and 155D
5 If WorkCover WA is of the opinion that a worker's
6 injury should be reviewed to determine whether a
7 return to work program should be established for the
8 worker, WorkCover WA may --
9 (a) notify the worker, the worker's employer and
10 the employer's insurer of that opinion; and
11 (b) inform those persons of the requirements of
12 sections 155C and 155D and their obligations
13 under those provisions.
14
15 103. Section 157A deleted
16 Delete section 157A.
17 104. Section 159 inserted
18 At the beginning of Part X Division 1 insert:
19
20 159. Terms used
21 In this Part --
22 compensable injury means an injury for which an
23 employer is liable;
24 damages means damages due, claimed or paid
25 independently of this Act;
26 liable, in relation to a compensable injury, means liable
27 to pay compensation in accordance with this Act;
page 74
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 105
1 remuneration means --
2 (a) unless regulations provide that it is not to be
3 treated as remuneration for the purposes of this
4 definition, any amount of any of the
5 following --
6 (i) wages;
7 (ii) salaries;
8 (iii) sums paid to workers under an
9 agreement to perform --
10 (I) a specified quantity of work for
11 a specified sum; or
12 (II) work on piece rates; or
13 (III) work on a bonus or commission
14 system for payment by results;
15 and
16 (b) any other amount which regulations provide is
17 to be treated as remuneration for the purposes
18 of this definition, not being --
19 (i) an amount paid by way of compensation
20 under this Act; or
21 (ii) an amount paid by way of damages in
22 respect of a compensable injury.
23
24 105. Section 160 amended
25 (1) Delete section 160(1) and (2) and insert:
26
27 (1) Subject to this Act, every employer shall obtain from
28 an approved insurance office and shall keep current a
29 policy of insurance for --
30 (a) the full amount of the employer's liability to
31 pay compensation under this Act to any worker
32 employed by the employer including any
page 75
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 105
1 increase in amount occurring during currency
2 of the policy; and
3 (b) the full amount of the employer's liability to
4 pay damages to any worker employed by the
5 employer in respect of a compensable injury for
6 which the employer is liable.
7 (2) An employer obliged by this section to effect or renew
8 a policy of insurance shall, on applying to an approved
9 insurance office, for that purpose, furnish to that office
10 an estimate, made to the best of that employer's
11 knowledge, information and belief, of the aggregate
12 amount of remuneration to be paid or payable over the
13 period for which the policy is to be effected or
14 renewed, and shall forthwith after the termination of
15 that period --
16 (a) furnish a statement of the aggregate amount of
17 remuneration paid or payable in fact; and
18 (b) include in that statement every sum paid during
19 that period to an employee in respect of
20 overtime worked by the employee.
21
22 (2) In section 160(2b)(a) delete "the wages, salary and other
23 remuneration paid" and insert:
24
25 remuneration paid or payable
26
27 (3) In section 160(3) delete "pay compensation under this Act to all
28 workers employed by him." and insert:
29
30 pay to all workers employed by the employer --
31 (a) compensation under this Act; and
page 76
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 106
1 (b) damages in respect of compensable injuries for
2 which the employer is liable.
3
4 (4) In section 160(4):
5 (a) in paragraph (a) delete "Act; and" and insert:
6
7 Act or damages in respect of compensable
8 injuries for which the employer is liable; and
9
10 (b) in paragraph (b) delete "compensation under this Act"
11 and insert:
12
13 such compensation or such damages
14
15 106. Section 161A amended
16 In section 161A after "Act" insert:
17
18 or damages in respect of compensable injuries for
19 which the employer is liable
20
21 107. Section 164 amended
22 In section 164(1) delete "Act for" and insert:
23
24 Act for, or to pay damages in respect of,
25
26 108. Section 165 amended
27 (1) Delete section 165(2)(d) and insert:
28
29 (d) any change in the extent of the liability to pay
30 compensation under this Act, or to pay
page 77
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 109
1 damages in respect of compensable injuries for
2 which the employer is liable, since the last
3 review.
4
5 (2) In section 165(3)(a) delete "compensation; or" and insert:
6
7 compensation or damages in respect of
8 compensable injuries for which the employer is
9 liable; or
10
11 (3) In section 165(4)(b):
12 (a) in subparagraph (i) delete "under this Act," and insert:
13
14 for which insurance would, but for the
15 exemption, be required by this Act,
16
17 (b) in subparagraph (ii) delete "under this Act." and insert:
18
19 for which insurance would, but for the
20 exemption, be required by this Act.
21
22 109. Section 168 amended
23 In section 168(b):
24 (a) delete subparagraph (iii) and insert:
25
26 (iii) there are no outstanding or potential
27 claims for compensation or actions for
28 damages in respect of an injury for
29 which the employer is or may be liable;
30 or
31
page 78
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 110
1 (b) in subparagraph (iv) delete "claims for compensation,"
2 and insert:
3
4 or potential claims or actions,
5
6 110. Section 171 amended
7 In section 171(1)(a) delete "with the insurance office concerned
8 against liability under this Act; and" and insert:
9
10 required by this Act with the insurance office
11 concerned; and
12
13 111. Section 172 amended
14 In section 172:
15 (a) delete "wages, salary and other forms of ";
16 (b) in paragraph (a) delete "wages, salary, and other forms
17 of ".
18 112. Section 173 amended
19 In section 173(1):
20 (a) after "currency of a contract" insert:
21
22 under this Act
23
24 (b) delete "liability under this Act" and insert:
25
26 liability
27
page 79
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 113
1 (c) in paragraph (a) delete "insurer; and" and insert:
2
3 insurer that the employer otherwise would have
4 had under the contract; and
5
6 (d) in paragraph (b) delete "the liability," and insert:
7
8 that liability that the employer otherwise would
9 have had to that worker and in respect of that
10 liability.
11
12 (e) delete "that the employer otherwise would have had
13 under the contract."
14
15 113. Section 174 amended
16 (1) After section 174(1) insert:
17
18 (1AA) Where --
19 (a) on or after the day on which the Workers'
20 Compensation and Injury Management
21 Amendment Act 2011 section 113 comes into
22 operation, an action for damages is brought by
23 a worker against the worker's employer in
24 respect of a compensable injury; and
25 (b) before that day no claim for compensation
26 under this Act has been made in respect of the
27 same injury; and
28 (c) the action --
29 (i) proceeds to judgment, including the
30 acceptance of an offer to consent to
31 judgment, against the employer and
32 damages are awarded to the worker
33 against the employer; or
page 80
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 113
1 (ii) is settled by an agreement of the kind
2 described in section 92(f) made between
3 the worker and WorkCover WA, in the
4 exercise of its powers under
5 section 174AB(1), under which
6 damages are to be paid to the worker;
7 and
8 (d) the employer is not insured under this Act
9 against the employer's liability to pay damages
10 to the worker or the case is one to which
11 section 173(2) applies or the employer's insurer
12 declines to indemnify the employer against the
13 worker's claim for damages; and
14 (e) the employer does not pay the damages
15 awarded or agreed within 60 days after the date
16 payment is due under the judgment or
17 agreement,
18 subject to section 174AAA, WorkCover WA is to pay
19 to the worker from moneys standing to the credit of the
20 General Account the amount required to satisfy the
21 judgment or agreement and any order against the
22 employer for costs in respect of the action.
23
24 (2) In section 174(1a) delete "under this Act in relation to the
25 payment of that award." and insert:
26
27 in relation to the payment of that amount.
28
29 (3) In section 174(3) after "satisfy an award" insert:
30
31 of compensation in accordance with this Act
32
page 81
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 114
1 (4) In section 174(5a) after "pay compensation" insert:
2
3 or damages
4
5 (5) In section 174(6) after "subsection (1)" insert:
6
7 or (1AA)
8
9 (6) In section 174(9):
10 (a) delete "by reason of section 175";
11 (b) after "to a worker," insert:
12
13 or to pay damages to a worker in respect of a
14 compensable injury,
15
16 114. Section 174AAA inserted
17 After section 174 insert:
18
19 174AAA. Setting aside judgments and agreements
20 (1) If --
21 (a) an action brought by a worker as described in
22 section 174(1AA)(a) proceeds to judgment as
23 described in section 174(1AA)(c)(i) or is settled
24 by an agreement of the kind described in
25 section 174(1AA)(c)(ii); and
26 (b) a claim on the General Account is made under
27 section 174(1AA) in respect of any amount due
28 under the judgment or agreement,
29 WorkCover WA may apply to the Supreme Court for
30 an order setting aside the judgment or agreement.
page 82
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 114
1 (2) The Supreme Court may set aside the judgment or
2 agreement if satisfied that there are reasonable grounds
3 for believing that the employer has not taken all
4 reasonable steps to protect the employer's own
5 interests.
6 (3) If the Supreme Court sets the judgment or agreement
7 aside the costs of the respondent in relation to the
8 application are to be paid from the General Account
9 unless the Supreme Court orders otherwise.
10 (4) The Supreme Court may make an order about costs
11 under subsection (3) only if satisfied that it is
12 appropriate to make the order because of the special
13 circumstances surrounding the giving of the judgment
14 or the making of the agreement.
15 (5) If a judgment or agreement is set aside under this
16 section --
17 (a) the judgment or agreement is taken never to
18 have had effect for the purpose of any
19 proceeding in any court; and
20 (b) evidence of a statement or communication, or a
21 part of a statement or communication, tending
22 to establish the existence of the agreement is
23 not admissible in any proceeding in a court,
24 unless the Supreme Court orders otherwise.
25 (6) The Supreme Court may make an order under
26 subsection (5)(b) only if satisfied that the admission of
27 the evidence is necessary to avoid injustice to a party to
28 the proceeding.
29
page 83
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 115
1 115. Section 174AB amended
2 (1) In section 174AB(1):
3 (a) delete "is uninsured and is not defending a claim
4 brought by a worker, WorkCover WA has all of the
5 rights of the employer under this Act" and insert:
6
7 against whom a claim for compensation under this Act,
8 or an action for damages in respect of a compensable
9 injury for which the employer is liable, is brought by a
10 worker is uninsured, WorkCover WA has all of the
11 rights of the employer as the party against whom the
12 claim or action is brought
13
14 (b) after paragraph (a) insert:
15
16 (ba) consent to a judgment being given in a
17 proceeding before a court; and
18
19 (c) in paragraph (b) delete "claim; and" and insert:
20
21 claim or compromise of the action; and
22
23 (d) in paragraph (c) delete "claim; and" and insert:
24
25 claim or action; and
26
27 (2) Delete section 174AB(2), (3) and (4).
page 84
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 116
1 116. Section 174AC replaced
2 Delete section 174AC and insert:
3
4 174AC. WorkCover WA's rights of indemnity and
5 subrogation
6 If WorkCover WA has paid, or is liable to pay, from
7 the General Account an amount as compensation or
8 damages for which an employer is liable, WorkCover
9 WA is subrogated to --
10 (a) any right of the employer to indemnity from an
11 insurer in respect of that payment; and
12 (b) any right of the employer and any insurer of the
13 employer to recover any amount from any other
14 person in respect of that payment (had the
15 payment been made by the employer or
16 insurer), whether the right arises by way of
17 liability for contribution, apportionment of
18 liability or otherwise.
19 174AD. Employer's duty to assist WorkCover WA
20 (1) Where under section 174AB or 174AC WorkCover
21 WA has or is subrogated to any right of an employer,
22 WorkCover WA may by notice in writing require the
23 employer to --
24 (a) give WorkCover WA any information and
25 assistance which WorkCover WA considers
26 necessary or desirable in relation to the exercise
27 or proposed exercise of the right; and
28 (b) provide to WorkCover WA any documents in
29 the employer's possession or control which
30 WorkCover WA considers necessary or
31 desirable in relation to the exercise or
32 contemplated exercise of the right; and
page 85
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 117
1 (c) execute any documents or instruments which
2 may be necessary to enable WorkCover WA to
3 exercise the right, or to ratify or confirm any
4 exercise or purported exercise of the right by
5 WorkCover WA.
6 (2) An employer must comply with any requirement made
7 under subsection (1).
8 Penalty: a fine of $5 000.
9
10 117. Section 174A amended
11 In section 174A(1):
12 (a) delete "claimed under this Act" and insert:
13
14 or damages in respect of a compensable injury for
15 which the employer is liable
16
17 (b) before "claimed," insert:
18
19 or damages are
20
21 118. Section 175 amended
22 After section 175(7) insert:
23
24 (8) Nothing in this section makes either a principal or a
25 contractor liable to pay any damages which, but for this
26 section, the principal or contractor would not be liable
27 to pay.
28
page 86
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 119
1 119. Section 175A amended
2 (1) In section 175A(1) delete "WorkCover WA" and insert:
3
4 The chief executive officer
5
6 (2) In section 175A(4) delete "Chairman of WorkCover WA" and
7 insert:
8
9 chief executive officer
10
11 (3) After section 175A(5) insert:
12
13 (6) If, immediately before the commencement of the
14 Workers' Compensation and Injury Management
15 Amendment Act 2011 section 119, a person was an
16 inspector authorised by WorkCover WA under
17 subsection (1), as in force at that time, the person is
18 taken to have been authorised as an inspector by the
19 chief executive officer.
20 (7) If, immediately before the commencement of the
21 Workers' Compensation and Injury Management
22 Amendment Act 2011 section 119, a person authorised
23 as an inspector held a certificate issued by the
24 Chairman of WorkCover WA under subsection (4), as
25 in force at that time, the person is taken to hold a
26 certificate issued by the chief executive officer.
27
28 120. Section 178 amended
29 After section 178(1) insert:
30
31 (2A) For the purposes of showing that the employer has not
32 been prejudiced in defending the proceedings for
page 87
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 121
1 subsection (1)(d), the period from the occurrence of the
2 injury, or from the time of death, to the time the claim
3 is made is to be taken into account.
4
5 121. Section 270A inserted
6 After section 269 insert:
7
8 270A. Remuneration
9 (1) A member of the Costs Committee is entitled to be
10 paid such fees and allowances as may be determined by
11 the Minister on the recommendation of the Minister for
12 Public Sector Management.
13 (2) The fees and allowances mentioned in subsection (1)
14 are to be paid by WorkCover WA from moneys
15 standing to the credit of the General Account.
16
17 122. Section 277 amended
18 In section 277(1)(b) delete "Workplace Relations Act 1996 of
19 the Commonwealth;" and insert:
20
21 Fair Work (Registered Organisations) Act 2009
22 (Commonwealth) or under another law of the
23 Commonwealth prescribed by the regulations;
24
25 123. Schedule 1 amended
26 (1) In Schedule 1 clause 7(4) delete "18A(1c)." and insert:
27
28 18A(1CA) and (1C).
29
page 88
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 123
1 (2) In Schedule 1 clause 11(2) delete the definitions of:
2 Amount A
3 Amount D
4 (3) In Schedule 1 clause 11(3)(a):
5 (a) delete "Amount A" and insert:
6
7 Amount B
8
9 (b) delete "Amount D;" and insert:
10
11 Amount Aa;
12
13 (4) In Schedule 1 clause 11(3)(b):
14 (a) delete "Amount Aa," and insert:
15
16 85% of Amount B,
17
18 (b) delete "Amount D." and insert:
19
20 Amount Aa.
21
22 (5) Delete Schedule 1 clause 11(5) and insert:
23
24 (5) Subject to subclause (6), the references in the definition of
25 Amount Aa to allowances are references to allowances
26 averaged over the period of one year ending at the date of
27 incapacity.
28
page 89
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 123
1 (6) In Schedule 1 clause 11(6) delete "13 weeks mentioned in
2 subclause (5)," and insert:
3
4 one year mentioned in subclause (5), or if for part of that
5 period the worker was not in the employment that the
6 worker is in on the date of incapacity,
7
8 (7) In Schedule 1 clause 11(7) delete "Amount D" and insert:
9
10 Amount Aa
11
12 (8) In Schedule 1 clause 16(2) delete "any percentage increase in
13 wages ordered in a National Wage Decision made under the
14 Conciliation and Arbitration Act 1904 of the Commonwealth as a
15 result, inter alia, of consumer price index movements." and insert:
16
17 any percentage increase in minimum wages resulting
18 from --
19 (a) a national minimum wage order made under the
20 Fair Work Act 2009 (Commonwealth); or
21 (b) any other instrument determining or regulating
22 minimum wages prescribed by the regulations in
23 place of national minimum wage orders.
24
25 (9) Before Schedule 1 clause 18A(1) insert:
26
27 (1AA) In this clause --
28 reasonable expenses referred to in clause 17(1) includes
29 the vehicle running expenses, reasonable fares and expenses
30 and reasonable cost of meals and lodging referred to in
31 clause 19(1).
32
page 90
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Amendments Division 1
s. 123
1 (10) In Schedule 1 clause 18A(1) delete "subclauses (1c)(a) and (2),"
2 and insert:
3
4 subclauses (1CA) and (2),
5
6 (11) In Schedule 1 clause 18A(1a) delete "subclauses (1c)(a) and (2),"
7 and insert:
8
9 subclauses (1CA) and (2),
10
11 (12) In Schedule 1 clause 18A(1b) delete "subclauses (1c)(b)" and
12 insert:
13
14 subclauses (1C)
15
16 (13) Delete Schedule 1 clause 18A(1c) and insert:
17
18 (1CA) In the exercise of a discretion under subclause (1) or (1a), an
19 arbitrator is not to allow an additional sum which exceeds,
20 or additional sums which in aggregate exceed --
21 (a) $50 000; less
22 (b) any sum or sums in excess of the maximum amount
23 provided by clause 17(1) that the insurer or
24 employer has voluntarily paid in respect of
25 reasonable expenses referred to in that clause.
26 (1C) In the exercise of a discretion under subclause (1b), an
27 arbitrator is not to allow a further additional sum which
28 exceeds, or further additional sums which in aggregate
29 exceed --
30 (a) the prescribed amount; less
31 (b) any sum or sums in excess of the maximum amount
32 provided by clause 17(1) that the insurer or
page 91
Workers' Compensation and Injury Management Amendment Bill 2011
Part 3 Other amendments
Division 1 Amendments
s. 123
1 employer has voluntarily paid in respect of
2 reasonable expenses referred to in that clause.
3
4 (14) In Schedule 1 clause 18A(1d) delete "subclause (1c)(b) --" and
5 insert:
6
7 subclause (1C) --
8
9 (15) In Schedule 1 clause 18A(3)(a)(ii) delete "$30 000;" and insert:
10
11 $30 000, less any sum or sums in excess of
12 the maximum amount provided by
13 clause 17(1) that the insurer or employer
14 has voluntarily paid in respect of reasonable
15 expenses referred to in that clause;
16
17 (16) In Schedule 1 clause 18A(4)(b) delete "$30 000." and insert:
18
19 $30 000, less any sum or sums in excess of the
20 maximum amount provided by clause 17(1) that the
21 insurer or employer has voluntarily paid in respect
22 of reasonable expenses referred to in that clause.
23
24 (17) Before Schedule 1 clause 18D(1) insert:
25
26 (1A) In this clause --
27 reasonable expenses referred to in clause 17(1) includes
28 the vehicle running expenses, reasonable fares and expenses
29 and reasonable cost of meals and lodging referred to in
30 clause 19(1).
31
page 92
Workers' Compensation and Injury Management Amendment Bill 2011
Other amendments Part 3
Workers' Compensation and Injury Management (Specified Division 2
Industrial Diseases) Order 2008 revoked
s. 124
1 (18) After Schedule 1 clause 19(2) insert:
2
3 (3A) In any case where a worker travels for the worker's degree
4 of impairment to be assessed by an approved medical
5 specialist or an approved medical specialist panel, the
6 employer is liable to pay the worker's vehicle running
7 expenses, reasonable fares and expenses and reasonable cost
8 of meals and lodging --
9 (a) as if subclause (1), with any necessary
10 modifications, applied to the travelling; and
11 (b) if the worker proves that the travelling was
12 necessary in the circumstances of the case.
13
14 124. Schedule 3 amended
15 In Schedule 3 after the item relating to Diseases caused by the
16 asphyxiants insert:
17
Pleural plaques (diffuse Any process entailing
pleural fibrosis) substantial exposure to
asbestos dust.
18
19 Division 2 -- Workers' Compensation and Injury Management
20 (Specified Industrial Diseases) Order 2008 revoked
21 125. Specified Industrial Diseases Order revoked
22 The Workers' Compensation and Injury Management (Specified
23 Industrial Diseases) Order 2008 is revoked.
[Index] [Search] [Download] [Related Items] [Help]