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This is a Bill, not an Act. For current law, see the Acts databases.


WORKERS' COMPENSATION AND INJURY MANAGEMENT AMENDMENT BILL 2012

                       Western Australia


      Workers' Compensation and Injury
      Management Amendment Bill 2012

                          CONTENTS


         Part 1 -- Preliminary
1.       Short title                                                2
2.       Commencement                                               2
         Part 2 -- Workers' Compensation and
              Injury Management Act 1981
              amended
3.       Act amended                                                3
4.       Section 159 amended                                        3
5.       Section 160 amended                                        4
6.       Section 161A amended                                       5
7.       Section 165 amended                                        5
8.       Section 168 amended                                        5
9.       Section 169 replaced                                       6
         169.     Terms of insurance and form of policies      6
10.      Section 174 amended                                        6
11.      Section 174AB amended                                      8
12.      Section 175 amended                                        8
         Part 3 -- Transitional
13.      Terms used                                                10
14.      Things done or omitted during the transitional
         period                                                    10
15.      Validity of terms, conditions and exclusions of
         insurance policies effected during the transitional
         period                                                    11




                             267--1                                 page i
                           Western Australia


                      LEGISLATIVE COUNCIL



         Workers' Compensation and Injury
         Management Amendment Bill 2012


                               A Bill for


An Act to amend the Workers' Compensation and Injury Management
Act 1981.



The Parliament of Western Australia enacts as follows:




                                                         page 1
     Workers' Compensation and Injury Management Amendment Bill 2012
     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 2012.

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.




     page 2
           Workers' Compensation and Injury Management Amendment Bill 2012
           Workers' Compensation and Injury Management Act 1981     Part 2
                                                      amended

                                                                                  s. 3


1               Part 2 -- Workers' Compensation and Injury
2                     Management Act 1981 amended
3    3.          Act amended
4                This Part amends the Workers' Compensation and Injury
5                Management Act 1981.

6    4.          Section 159 amended

7         (1)    In section 159 delete the definition of damages.
8         (2)    In section 159 insert in alphabetical order:
9

10                     damages means --
11                       (a)   damages due or payable to, or claimed by, a
12                             worker for an injury caused to that worker by
13                             the negligence, other tort or breach of statutory
14                             duty of the employer of the worker or the
15                             negligence of any person for whose conduct the
16                             employer is vicariously liable; or
17                       (b)   damages due or payable to, or claimed by, a
18                             dependant of a deceased worker under the Fatal
19                             Accidents Act 1959 for an injury causing the
20                             death of the worker; or
21                       (c)   damages due or payable to, or claimed on
22                             behalf of, the estate of a deceased worker under
23                             the Law Reform (Miscellaneous Provisions)
24                             Act 1941 for an injury causing the death of the
25                             worker; or
26                       (d)   the amount of any contribution or indemnity
27                             due or payable to, or claimed by, a concurrent
28                             tortfeasor under the Law Reform (Contributory
29                             Negligence and Tortfeasors' Contribution)



                                                                            page 3
     Workers' Compensation and Injury Management Amendment Bill 2012
     Part 2        Workers' Compensation and Injury Management Act 1981
                   amended

     s. 5


1                             Act 1947 in respect of an injury to, or death of,
2                             a worker,
3                     but does not include a liability imposed by contract that
4                     would not arise as a coordinate liability in negligence
5                     or other tort or breach of statutory duty;
6                     deemed worker, in relation to an employer, means --
7                       (a) a worker of whom the employer would not be
8                             the employer, but for being deemed by
9                             section 175(1) to be the employer; or
10                      (b) a person to whom the employer would be liable
11                            to pay compensation in the circumstances
12                            described in section 175AA(5)(a);
13                    insurable damages means damages in respect of which
14                    an employer is required by section 160(1)(b) to insure;
15


16   5.         Section 160 amended
17        (1)   Delete section 160(1)(b) and insert:
18

19                     (b)   the amount of the employer's liability to pay
20                           damages to or in respect of any worker
21                           employed by the employer, other than a
22                           deemed worker of the employer, in respect of a
23                           compensable injury for which the employer is
24                           liable.
25

26        (2)   Delete section 160(3) and insert:
27

28              (3)   An approved insurance office is to insure any employer
29                    requesting it for the amount of the liabilities for which
30                    the employer is required by subsection (1) to insure.
31                    Penalty: a fine of $2 000.
32




     page 4
           Workers' Compensation and Injury Management Amendment Bill 2012
           Workers' Compensation and Injury Management Act 1981     Part 2
                                                      amended

                                                                                s. 6


1         (3)   In section 160(4)(a) delete "damages in respect of compensable
2               injuries for which the employer is liable; and" and insert:
3

4               insurable damages; and
5


6    6.         Section 161A amended
7               In section 161A delete "damages in respect of compensable
8               injuries for which the employer is liable" and insert:
9

10              insurable damages
11


12   7.         Section 165 amended
13        (1)   In section 165(2)(d) delete "damages in respect of compensable
14              injuries for which the employer is liable," and insert:
15

16              insurable damages,
17

18        (2)   In section 165(3)(a) delete "damages in respect of compensable
19              injuries for which the employer is liable; or" and insert:
20

21              insurable damages; or
22


23   8.         Section 168 amended
24              Delete section 168(b)(iii) and insert:
25

26                            (iii)   there are no outstanding or potential --
27                                       (I) claims for compensation; or




                                                                           page 5
     Workers' Compensation and Injury Management Amendment Bill 2012
     Part 2        Workers' Compensation and Injury Management Act 1981
                   amended

     s. 9


1                                          (II)   actions for insurable damages;
2                                     or
3


4    9.          Section 169 replaced
5                Delete section 169 and insert:
6


7            169.      Terms of insurance and form of policies
8                (1)   The regulations may --
9                       (a) limit, modify or exclude any requirement in
10                            section 160(1) to obtain or keep current an
11                            insurance policy in respect of liabilities arising
12                            in prescribed circumstances or out of prescribed
13                            events; and
14                      (b) limit the amount for which an employer is
15                            required by section 160(1) to obtain or keep
16                            current an insurance policy; and
17                      (c) otherwise limit, modify or exclude the
18                            requirement in section 160(1) to obtain or keep
19                            current an insurance policy.
20               (2)   The regulations may prescribe any or all of the terms
21                     and conditions of an insurance policy required by
22                     section 160(1).
23               (3)   The regulations may prescribe the form of any
24                     insurance policy required by section 160(1).
25


26   10.         Section 174 amended
27         (1)   In section 174(1) delete "shall" and insert:
28

29               is, subject to subsection (5AA), to
30



     page 6
      Workers' Compensation and Injury Management Amendment Bill 2012
      Workers' Compensation and Injury Management Act 1981     Part 2
                                                 amended

                                                                        s. 10


1    (2)   In section 174(1AA) --
2            (a) before paragraph (d) insert:
3

4                  (da)   the damages awarded or agreed are, or include,
5                         insurable damages; and
6

7           (b)     in paragraph (d) after "to pay" insert:
8

9                   the insurable
10

11           (c)    in paragraph (d) after "claim for" insert:
12

13                  insurable
14

15          (d)     delete "subject to section 174AAA, WorkCover WA is"
16                  and insert:
17

18                  Workcover WA is, subject to subsection (5AA) and
19                  section 174AAA,
20

21           (e)    after "the amount required to satisfy the judgment or
22                  agreement" insert:
23

24                  to the extent that the judgment or agreement provides
25                  for the payment of insurable damages,
26

27   (3)   After section 174(5) insert:
28

29         (5AA) Where WorkCover WA is to make a payment under
30               subsection (1) or (1AA) to a worker in respect of an
31               injury --
32                 (a) the amount of that payment is to be reduced
33                      by any amount of compensation payable to

                                                                       page 7
     Workers' Compensation and Injury Management Amendment Bill 2012
     Part 2        Workers' Compensation and Injury Management Act 1981
                   amended

     s. 11


1                                 the worker by any employer in respect of the
2                                 injury; and
3                           (b)   the employer paying that compensation has
4                                 no right under section 92 or 93 to recovery
5                                 of, or indemnity for, the compensation from
6                                 the worker.
7                 (5AB) Nothing in this section requires WorkCover WA to
8                       make any payment to the employer of a worker or to
9                       any person who is deemed by section 175(1) to be
10                      the employer of a worker.
11

12         (4)    In section 174(9) delete "or to pay damages to a worker in
13                respect of a compensable injury,".

14   11.          Section 174AB amended
15                In section 174AB(1) delete "damages in respect of a
16                compensable injury for which the employer is liable," and
17                insert:
18

19                damages which are, or which include, insurable damages,
20


21   12.          Section 175 amended
22                After section 175(2) insert:
23

24               (3A)   The indemnity conferred by subsection (2) does not
25                      allow the principal to recover from the worker --
26                        (a) any amount which the worker receives from the
27                              contractor by way of compensation or damages
28                              in respect of a compensable injury; or
29                        (b) any amount which the worker receives from
30                              WorkCover WA under section 174 in respect of



     page 8
    Workers' Compensation and Injury Management Amendment Bill 2012
    Workers' Compensation and Injury Management Act 1981     Part 2
                                               amended

                                                                   s. 12


1                   the contractor's liability to pay compensation or
2                   damages to the worker.
3     (3B)   The indemnity conferred by subsection (2) does not
4            allow the principal to recover any amount from
5            WorkCover WA.
6




                                                                  page 9
     Workers' Compensation and Injury Management Amendment Bill 2012
     Part 3        Transitional

     s. 13



1                             Part 3 -- Transitional
2    13.         Terms used
3                In this Part --
4                Part X means the Workers' Compensation and Injury
5                Management Act 1981 Part X;
6                transitional period means the period beginning on
7                1 October 2011 and ending when Part 2 of this Act comes into
8                operation.

9    14.         Things done or omitted during the transitional period
10         (1)   Anything done during the transitional period that --
11                (a) did not comply with a provision of Part X; and
12                (b) would have complied with that provision if done
13                      immediately after the transitional period,
14               is taken to have complied with that provision at the time it was
15               done.
16         (2)   Where --
17                (a) during the transitional period, an employer does not
18                     obtain or keep current an insurance policy under Part X
19                     for a liability of a particular kind to a particular person;
20                     and
21                (b) the employer is taken under subsection (1) to have
22                     complied with a provision of Part X requiring it to
23                     obtain or keep current such a policy,
24               an insurer who has issued to the employer a liability insurance
25               policy other than for the purposes of Part X may not reject a
26               claim under that policy on the grounds that the claim relates to a
27               liability for which the employer was required under Part X to
28               insure.
29         (3)   In this section a reference to doing anything includes a reference
30               to omitting to do that thing.

     page 10
          Workers' Compensation and Injury Management Amendment Bill 2012
                                                 Transitional      Part 3

                                                                            s. 15



1   15.       Validity of terms, conditions and exclusions of insurance
2             policies effected during the transitional period
3             A term, condition or exclusion of an insurance policy obtained
4             or kept current during the transitional period for the purposes of
5             Part X which, if the policy were obtained immediately after the
6             transitional period, would be valid, lawful and effective is taken
7             to be valid, lawful and effective from the time when the policy
8             was obtained or, if later, from the beginning of the transitional
9             period.




 


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