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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Workers' Compensation (Common Law
Proceedings) Bill 2004
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Purpose 2
Part 2 -- Provisions relating to
section 32 of the Workers'
Compensation and Rehabilitation
Amendment Act 1999
4. Terms used in this Part 3
5. Provisions applying to awarding of damages 3
6. Existing determinations unaffected 4
7. Jurisdiction removed and workers' costs indemnified 5
Part 3 -- Amendments to other Acts
8. The Act amended 7
9. Section 93E amended 7
10. Sections 93EA, 93EB, and 93EC inserted 8
11. Section 154AC inserted 13
12. Employers' Indemnity Supplementation Fund
Act 1980 amended 14
312--3 page i
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during committee)
Workers' Compensation (Common Law
Proceedings) Bill 2004
A Bill for
An Act to --
• make provision for certain applications and proceedings
relating to the awarding of damages to workers; and
• amend the Workers' Compensation and Rehabilitation
Act 1981 and the Employers' Indemnity Supplementation Fund
Act 1980.
The Parliament of Western Australia enacts as follows:
page 1
Workers' Compensation (Common Law Proceedings) Bill 2004
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Workers' Compensation (Common
Law Proceedings) Act 2004.
5 2. Commencement
(1) Except as stated in subsection (2), this Act comes into operation
on the day on which it receives the Royal Assent.
(2) Section 5(1) and (2) are deemed to have come into operation on
5 October 1999.
10 3. Purpose
The purposes of this Act are --
(a) to ensure that so far as is equitable the intention of
Parliament in enacting section 32 of the Workers'
Compensation and Rehabilitation Amendment Act 1999,
15 as stated by the Minister for Labour Relations in the
Legislative Assembly on 21 October 1999
(Parliamentary Debates (Hansard) at 2456), is given
effect; and
(b) to ensure that workers are not disadvantaged by the
20 effect of certain decisions of the Supreme Court in
relation to the operation of section 93D of the Workers'
Compensation and Rehabilitation Act 1981.
page 2
Workers' Compensation (Common Law Proceedings) Bill 2004
Provisions relating to section 32 of the Workers' Compensation Part 2
and Rehabilitation Amendment Act 1999
s. 4
Part 2 -- Provisions relating to section 32 of the
Workers' Compensation and Rehabilitation Amendment
Act 1999
4. Terms used in this Part
5 (1) In this Part, unless the contrary intention appears --
"1999 Act" means the Workers' Compensation and
Rehabilitation Amendment Act 1999;
"amended provisions" means sections 93A to 93G of the
Workers' Compensation and Rehabilitation Act 1981 as
10 amended from time to time;
"assent day" has the same meaning as in section 32(6) of the
1999 Act;
"former provisions" has the same meaning as in section 32(6)
of the 1999 Act.
15 (2) Unless the contrary intention appears, words and expressions
used in this Part have the same meaning as they have in the
Workers' Compensation and Rehabilitation Act 1981.
5. Provisions applying to awarding of damages
(1) This section --
20 (a) is to be read in conjunction with section 32 of the 1999
Act as if this section were incorporated with and formed
part of that section; and
(b) applies in addition to section 32(7) of the 1999 Act.
(2) Despite section 37 of the Interpretation Act 1984 and any other
25 law, written or unwritten but except as otherwise stated in
subsection (3) or in the amended provisions --
(a) the amended provisions apply to, and affect the
awarding of damages in, a proceeding; and
page 3
Workers' Compensation (Common Law Proceedings) Bill 2004
Part 2 Provisions relating to section 32 of the Workers' Compensation
and Rehabilitation Amendment Act 1999
s. 6
(b) the former provisions do not apply to, or affect the
awarding of damages in, a proceeding,
unless it is a proceeding --
(c) commenced before the assent day; or
5 (d) for the commencement of which a court gave leave
under the former provisions before the assent day.
(3) Despite subsection (2), section 37 of the Interpretation Act 1984
and any other law, written or unwritten but except as otherwise
stated in section 6(4) --
10 (a) the amended provisions do not apply to, or affect the
awarding of damages in, a proceeding; and
(b) the former provisions apply to, and affect the awarding
of damages in, a proceeding,
that is a proceeding --
15 (c) commenced on or before the day on which this Act
receives the Royal Assent with the leave of a court
under the former provisions; or
(d) for the commencement of which a court gave leave
under the former provisions on or before the day on
20 which this Act receives the Royal Assent or on District
Court file number WC 93D 1194/1998.
6. Existing determinations unaffected
(1) In this section --
"determination" includes a decision, ruling, order, award,
25 judgment, settlement or agreement but does not include a
determination in respect of a proceeding referred to in
section 5(2)(c) or (d).
page 4
Workers' Compensation (Common Law Proceedings) Bill 2004
Provisions relating to section 32 of the Workers' Compensation Part 2
and Rehabilitation Amendment Act 1999
s. 7
(2) Where a determination was given, made or registered after the
assent day on the basis that the amended provisions, and not the
former provisions, applied, the fact that the determination was
given, made, or registered on that basis is not a reason for --
5 (a) the determination to be rescinded, set aside, altered or
amended;
(b) the determination to be subject to appeal, review or
challenge in any way; or
(c) the worker to be entitled to any further payment under
10 the provisions of the Workers' Compensation and
Rehabilitation Act 1981 or any other law, written or
unwritten.
(3) No determination given, made, or registered after the assent day
is invalid or less effective by reason that it was given, made or
15 registered on the basis that the amended provisions, and not the
former provisions, applied.
(4) Section 5(3) does not apply if the cause of action to which a
proceeding relates is the subject of an award of damages,
settlement or agreement to which subsections (2) and (3) apply.
20 7. Jurisdiction removed and workers' costs indemnified
(1) In this section --
"commencement day" means the day on which this Act
receives the Royal Assent;
"former provisions matter" means --
25 (a) an application for leave to commence proceedings
under the former provisions;
(b) an application for leave to appeal from a refusal to
grant leave to commence proceedings under the
former provisions;
30 (c) an appeal from a refusal to grant leave to commence
proceedings under the former provisions; or
(d) a proceeding to which section 5(3) would have
applied but for the operation of section 6(4),
page 5
Workers' Compensation (Common Law Proceedings) Bill 2004
Part 2 Provisions relating to section 32 of the Workers' Compensation
and Rehabilitation Amendment Act 1999
s. 7
but does not include an application, appeal or proceeding
on or relating to District Court file number
WC 93D 1194/1998.
(2) On and after the commencement day no court may hear or
5 determine a former provisions matter.
(3) Any former provisions matter that has been commenced but not
determined before the commencement day is a nullity, and is
taken to have been dismissed by operation of this subsection
with no order for costs.
10 (4) A worker who, during the period commencing on
4 December 2003 and ending on the day on which this Act
receives the Royal Assent, has incurred legal costs in
commencing or continuing a former provisions matter that is
taken to have been dismissed by operation of subsection (3), is
15 entitled to be paid reasonable costs so incurred.
(5) The Executive Director may determine what are reasonable
costs for the purposes of subsection (4).
(6) If the worker disputes the determination of the Executive
Director, the Executive Director is to refer the matter to a
20 registrar of the District Court or a taxing officer of the Supreme
Court who may determine what are reasonable costs as if the
determination were a taxation of costs.
(7) Costs that a person is entitled to be paid under this section are
payable from the General Fund.
page 6
Workers' Compensation (Common Law Proceedings) Bill 2004
Amendments to other Acts Part 3
s. 8
Part 3 -- Amendments to other Acts
8. The Act amended
The amendments in this Part, other than the amendment in
section 12, are to the Workers' Compensation and
5 Rehabilitation Act 1981*.
[* Reprinted as at 14 September 2001.
For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 438-9.]
9. Section 93E amended
10 (1) Section 93E(5) is amended by inserting after
"subsections (6)" --
" , (6a), ".
(2) After section 93E(6) the following subsection is inserted --
"
15 (6a) Despite subsection (5) and even though subsection (6)
does not apply, if the Director gives the worker notice
under section 93EA(5)(b)(i) or 93EB(5)(b)(i) that this
subsection applies an election can be made under
subsection (3)(b) within 14 days after the Director
20 subsequently gives the worker notice in writing that an
agreement or determination of the question has been
recorded.
".
page 7
Workers' Compensation (Common Law Proceedings) Bill 2004
Part 3 Amendments to other Acts
s. 10
10. Sections 93EA, 93EB, and 93EC inserted
After section 93E the following sections are inserted --
"
93EA. Referring questions with fresh evidence in
5 particular cases
(1) Unless it does not apply because of subsection (2),
subsection (3) applies if --
(a) on or before 30 September 2001, a worker --
(i) sought to refer a question to the Director
10 under section 93D(5); and
(ii) in order to satisfy section 93D(6),
produced to the Director anything that,
even though it may not have constituted
evidence of the kind required by that
15 subsection, was accepted by the
Director as evidence of that kind;
and
(b) the Director treated the question as having been
referred under section 93D(5), after which, for
20 a reason based on a failure to satisfy the
requirements of section 93D(6) for a referral
under section 93D(5) --
(i) a review officer did not deal with the
substance of the question; or
25 (ii) a court set aside or quashed a decision
of a review officer that dealt with the
substance of the question.
(2) If the question is whether the worker's degree of
disability is not less than 16%, subsection (3) does not
30 apply unless the production of what was produced as
referred to in subsection (1)(a)(ii) and the purported
referral of the question both occurred --
(a) not less than 21 days before the termination
day; or
page 8
Workers' Compensation (Common Law Proceedings) Bill 2004
Amendments to other Acts Part 3
s. 10
(b) before a day fixed under section 93E(7) by the
Director.
(3) If this subsection applies, the worker may, within the
time limited by subsection (4)(b) and otherwise in
5 accordance with subsection (4), refer to the Director
under section 93D(5) the same question as is
mentioned in subsection (1)(a)(i), relating to the same
disability and only that disability.
(4) A question can only be referred under subsection (3)
10 if --
(a) the referral is made in writing in a form
specified in the regulations stating that the
worker is also acting under subsection (3);
(b) the referral is made --
15 (i) within the period of 3 months
commencing after the day on which
section 10 of the Workers'
Compensation (Common Law
Proceedings) Act 2004 comes into
20 operation (called the "commencement
day" in subparagraph (ii)); or
(ii) if subsection (1)(b)(ii) applies and the
decision is set aside or quashed after the
commencement day, within the period
25 of 3 months commencing after the day
on which the decision is set aside or
quashed;
and
(c) when referring the question to the Director, the
30 worker produces to the Director evidence
relating to the disability that complies with
section 93D(6), or satisfies the Director that
complying evidence has already been produced
to the Director.
page 9
Workers' Compensation (Common Law Proceedings) Bill 2004
Part 3 Amendments to other Acts
s. 10
(5) If a worker seeks to make a referral under
section 93D(5) stating that it is also made under
subsection (3) of this section, the Director is required,
as soon as practicable, to notify the worker and the
5 employer, in accordance with the regulations --
(a) whether or not the Director is of the opinion
that evidence complying with section 93D(6)
has been produced and in all other respects the
referral is properly made; and
10 (b) if the Director --
(i) is of that opinion, that the referral is
accepted and section 93E(6a), if
relevant, and section 93EC apply;
(ii) is not of that opinion, that the referral
15 sought to be made by the worker is not
accepted.
93EB. Referring questions in certain other cases
(1) Unless it does not apply because of subsection (2),
subsection (3) applies if --
20 (a) before the coming into operation of section 10
of the Workers' Compensation (Common Law
Proceedings) Act 2004, a worker sought to
refer a question to the Director under
section 93D(5);
25 (b) on or after 4 December 2003, on the basis that
Part IV Division 2 as in force before it was
amended by section 32 of the Workers'
Compensation and Rehabilitation Amendment
Act 1999 applied to proceedings for the
30 awarding of the damages concerned --
(i) a review officer did not deal with the
substance of the question; or
page 10
Workers' Compensation (Common Law Proceedings) Bill 2004
Amendments to other Acts Part 3
s. 10
(ii) a court set aside or quashed a decision
of a review officer that dealt with the
substance of the question;
and
5 (c) after the coming into operation of section 10 of
the Workers' Compensation (Common Law
Proceedings) Act 2004, section 93D(5) applies
and the worker wishes to refer the question to
the Director under that section.
10 (2) If the question is whether the worker's degree of
disability is not less than 16%, subsection (3) does not
apply unless the purported referral of the question
occurred --
(a) not less than 21 days before the termination
15 day; or
(b) before a day fixed under section 93E(7) by the
Director.
(3) If this subsection applies, the worker may, within the
time limited by subsection (4)(b) and otherwise in
20 accordance with subsection (4), refer to the Director
under section 93D(5) the same question as is
mentioned in subsection (1)(a), relating to the same
disability and only that disability.
(4) A question can only be referred under subsection (3)
25 if --
(a) the referral is made in writing in a form
specified in the regulations stating that the
worker is also acting under subsection (3);
(b) the referral is made --
30 (i) within the period of 3 months
commencing after the day on which
section 10 of the Workers'
Compensation (Common Law
page 11
Workers' Compensation (Common Law Proceedings) Bill 2004
Part 3 Amendments to other Acts
s. 10
Proceedings) Act 2004 comes into
operation (called the "commencement
day" in subparagraph (ii)); or
(ii) if subsection (1)(b)(ii) applies and the
5 decision is set aside or quashed after the
commencement day, within the period
of 3 months commencing after the day
on which the decision is set aside or
quashed;
10 and
(c) when referring the question to the Director, the
worker produces to the Director evidence
relating to the disability that complies with
section 93D(6), or satisfies the Director that
15 complying evidence has already been produced
to the Director.
(5) If a worker seeks to make a referral under
section 93D(5) stating that it is also made under
subsection (3) of this section, the Director is required,
20 as soon as practicable, to notify the worker and the
employer, in accordance with the regulations --
(a) whether or not the Director is of the opinion
that evidence complying with section 93D(6)
has been produced and in all other respects the
25 referral is properly made; and
(b) if the Director --
(i) is of that opinion, that the referral is
accepted and section 93E(6a), if
relevant, and section 93EC apply;
30 (ii) is not of that opinion, that the referral
sought to be made by the worker is not
accepted.
page 12
Workers' Compensation (Common Law Proceedings) Bill 2004
Amendments to other Acts Part 3
s. 11
93EC. Extended time for commencing proceedings
If --
(a) under section 93EA(5)(b)(i) or 93EB(5)(b)(i),
the Director notifies a worker that the referral
5 of a question relating to a disability is accepted
and that this section applies; and
(b) the time limited by any written law for the
commencement of an action seeking damages
in respect of the disability --
10 (i) has elapsed before the day on which the
Director notifies the worker (the
"notification day"); or
(ii) is due to elapse on the notification day
or before the expiry of a period of
15 2 years after the notification day,
an action seeking damages in respect of the disability
may, despite that written law, be commenced at any
time before the expiry of a period of 2 years after the
notification day.
20 ".
11. Section 154AC inserted
Before the heading to Part IX the following section is
inserted --
"
25 154AC. Regulations for subsidy from Supplementation
Fund
(1) The regulations may authorise the Commission to
approve an application by an employer for
reimbursement of the cost of paying an award of
30 damages to which Part IV Division 2 applies in a case
in which a question as to the worker's degree of
disability was referred under section 93EA(3) to the
page 13
Workers' Compensation (Common Law Proceedings) Bill 2004
Part 3 Amendments to other Acts
s. 12
extent, if any, to which the cost exceeds the amount
ascertained in accordance with regulations made for the
purposes of this section.
(2) The amount of any reimbursement approved under the
5 regulations is to be paid by the Commission to the
employer and charged against the Employers'
Indemnity Supplementation Fund established under
section 5(1) of the Employers' Indemnity
Supplementation Fund Act 1980.
10 ".
12. Employers' Indemnity Supplementation Fund Act 1980
amended
(1) The amendment in this section is to the Employers' Indemnity
Supplementation Fund Act 1980*.
15 [* Reprint 2 as at 16 May 2003.]
(2) Section 10(fa) is amended by inserting before the semicolon at
the end of the paragraph --
"
or section 154AC of the Workers' Compensation and
20 Rehabilitation Act 1981
".
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