Commonwealth Employment (Miscellaneous Amendments) Act 1992 (Cth)

Commonwealth Employment (Miscellaneous Amendments) Act 1992 No. 95 of 1992 An Act to amend the law relating to rehabilitation, workers' compensation and occupational health and safety in respect of persons employed by the Commonwealth and Commonwealth authorities, and for related purposes [Assented to 30 June 1992] The Parliament of Australia enacts: PART 1—PRELIMINARY Short title 1. This Act may be cited as the Commonwealth Employment (Miscellaneous Amendments) Act 1992. Commencement 2.(1) This Part commences on the day on which this Act receives the Royal Assent. (2) Subject to subsection (3), the provisions of Divisions 1, 2 and 3 of Part 2, and the provisions of Part 6, commence on a day to be fixed by Proclamation. (3) If the provisions referred to in subsection (2) do not commence under that subsection within the period of 6 months beginning on the day on which this Act receives the Royal Assent, those provisions commence on the first day after the end of that period. (4) Division 4 of Part 2 and Part 4 are taken to commence, or to have commenced, as the case may be, on the day fixed under subsection 2(2) of the Industrial Relations Legislation Amendment Act (No. 3) 1991. (5) Part 3 is taken to have commenced on 27 June 1991. (6) Subject to subsection (7), Part 5 commences on a day to be fixed by Proclamation. (7) If Part 5 does not commence under subsection (6) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, that Part commences on the first day after the end of that period. PART 2—AMENDMENTS OF THE COMMONWEALTH EMPLOYEES' REHABILITATION AND COMPENSATION ACT 1988 AND RELATED TRANSITIONAL PROVISIONS Division 1—Introductory Principal Act 3. In this Part, "Principal Act" means the Commonwealth Employees' Rehabilitation and Compensation Act 19881. Division 2—Amendments relating to the licensing of authorities Interpretation 4. Section 4 of the Principal Act is amended: (a) by omitting "(other than an administering authority)" from the definition of "exempt authority" in subsection (1); (b) by omitting "an administering authority" from paragraph (b) of the definition of "rehabilitation authority" in subsection (1) and substituting "a licensed authority"; (c) by omitting subparagraph (c)(ii) of the definition of "Commonwealth authority" in subsection (1) and substituting the following subparagraph: "(ii) in which: (A) the Commonwealth has a controlling or substantial interest; or (B) a Territory (other than the Northern Territory) or a body corporate referred to in paragraph (a) or (b) has a controlling interest; and"; (d) by omitting paragraph (a) of the definition of "relevant authority" in subsection (1) and substituting the following paragraph: "(a) in relation to an employee who is employed by a licensed authority—that authority; and"; (e) by omitting the definitions of "administering authority" and "principal officer" from subsection (1) and substituting the following definitions: " 'administering authority' means a Commonwealth authority that, immediately before the repeal of Part VIII, was an administering authority under that Part; 'principal officer', in relation to a Commonwealth authority, means: (a) the person who constitutes, or is acting as the person who constitutes, the authority or, if the authority is constituted by 2 or more persons, the person who is entitled to preside at any meeting of the authority at which he or she is present; or (b) if the affairs of the authority are administered or managed by a board or other group of persons—the person who is entitled to preside at any meeting of that board or other group at which he or she is present;"; (f) by inserting in subsection (1) the following definitions: " 'controlling interest', in relation to a body corporate, means an interest in the body corporate that enables the person holding the interest to: (a) control the composition of the board of directors of the body corporate; or (b) cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the body corporate; or (c) control more than one-half of the issued share capital of the body corporate (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); 'licence' means a licence under Part VIIIA; 'licensed authority' means a Commonwealth authority that is the holder of a licence that is in force; 'previous Commission' means the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees that was established under section 68 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 as amended and in force immediately before the commencement of Part 2 of the Industrial Relations Legislation Amendment Act (No. 3) 1991; 'substantial interest', in relation to a body corporate, means an interest (other than a controlling interest) in the body corporate that enables the person holding the interest to cast, or control the casting of, a number of votes at a general meeting of the body corporate that is equal to or greater than the number of votes which may be cast, or whose casting may be controlled, by any other single person;"; (g) by omitting from subsection (10) "an administering" and substituting "a licensed". Employees 5. Section 5 of the Principal Act is amended by omitting from subsection (9) "or an administering authority" and substituting ", an administering authority or a licensed authority". Approved guide 6. Section 28 of the Principal Act is amended: (a) by omitting from subsection (4) "an administering" and substituting "a licensed"; (b) by omitting from subsection (4) "the administering" and substituting "the licensed". Approved rehabilitation program providers 7. Section 34 of the Principal Act is amended: (a) by omitting subsection (2); (b) by omitting "or an administering authority" from subsections (3) and (4). Provision of rehabilitation programs 8. Section 37 of the Principal Act is amended by omitting from subsection (2) "(other than an administering authority)". Interpretation 9. Section 60 of the Principal Act is amended: (a) by omitting "an administering" from the definition of "determination" in subsection (1) and substituting "a licensed"; (b) by omitting "an administering" from paragraph (b) of the definition of "determining authority" in subsection (1) and substituting "a licensed"; (c) by omitting "an administering" from paragraph (2)(c) and substituting "a licensed". Functions 10. Section 69 of the Principal Act is amended by inserting after paragraph (e) the following paragraph: "(ea) to collect on behalf of the Commonwealth any premiums that are payable into the Consolidated Revenue Fund in accordance with a direction by the Minister under section 96G;". 11. After section 70 of the Principal Act the following section is inserted: Comcare may charge for certain services "70A. Without limiting the generality of section 70, Comcare may enter into an arrangement with the Secretary of a Department, the principal officer of a Commonwealth authority, or any other person, under which: (a) Comcare will provide to the Department, authority or other person specified services related to the performance by Comcare of its functions; and (b) the Department, authority or other person will pay to Comcare such amount as is agreed between them for the provision of those services.". Power to obtain information from Departments and authorities 12. Section 71 of the Principal Act is amended by omitting from subsection (1) "(other than an administering authority)". Guidelines by Commission 13. Section 73A of the Principal Act is amended: (a) by omitting "an administering" from subsection (2) and substituting "a licensed"; (b) by omitting "the administering" from subsection (2) and substituting "the licensed"; (c) by omitting "An administering" from subsection (6) and substituting "A licensed". Functions 14. Section 89B of the Principal Act is amended by omitting "the administering" from paragraph (a) and substituting "a licensed". Constitution 15. Section 89E of the Principal Act is amended by omitting "administering" from paragraphs (1)(d) and (e) and substituting "licensed". Appointment 16. Section 89F of the Principal Act is amended by omitting "administering" from subsection (2) and substituting "licensed". Annual reports 17. Section 89S of the Principal Act is amended by omitting "administering" from paragraph (2)(c) and substituting "licensed". 18. After section 90 of the Principal Act the following sections are inserted: How premiums collected by Comcare are to be dealt with "90A.(1) Any premium collected by Comcare under paragraph 69(ea) is to be paid into a bank account kept by Comcare under section 63J of the Audit Act 1901 as it applies to Comcare by section 90 of this Act but an amount equal to that premium is to be paid by Comcare to the Commonwealth within 7 days after the day on which the premium is collected by Comcare. "(2) Transactions referred to in subsection (1) are to be shown in the accounts and records kept by Comcare under section 63K of the Audit Act 1901 as it applies to Comcare by section 90 of this Act. "(3) Any amount paid by Comcare to the Commonwealth under subsection (1) in respect of a premium collected by Comcare is taken, for the purposes of this Act, to constitute payment of the premium into the Consolidated Revenue Fund. Payments to Comcare in respect of liabilities under Part X "90B. There are payable to Comcare, out of the Consolidated Revenue Fund, such amounts as are necessary: (a) to enable Comcare to discharge any liability that is taken, by section 128, to have been incurred by Comcare and has not been discharged before the commencement of this section; and (b) to meet any administrative expenses incurred by Comcare after the commencement of this section that are attributable to the performance by Comcare of its functions in respect of claims for injury, loss or damage suffered by, or for the death of, employees before the commencement of Part X. Payments to Comcare in respect of other liabilities "90C.(1) Subject to this section, there are payable to Comcare, out of the Consolidated Revenue Fund, such amounts as are necessary: (a) to enable Comcare to discharge: (i) any liability (other than a liability referred to in paragraph 90B(a)) that was incurred by Comcare or the previous Commission under this Act before the commencement of this section and has not been discharged before that commencement; and (ii) any liability that Comcare incurs under this Act after that commencement; and (b) to meet any administrative expenses incurred by Comcare after that commencement that are attributable to the performance by Comcare of its functions in respect of claims for injury, loss or damage suffered by, or for the death of, employees on or after 1 July 1989. "(2) A payment ('the relevant payment') is not to be made to Comcare under subsection (1) if the sum of the amount of the relevant payment and the amounts previously paid to Comcare or the previous Commission on or after 1 July 1989 for the purposes of the performance of their functions under this Act would exceed an amount worked out in accordance with the formula: where: 'Premiums received' means the total of the amounts of the premiums paid into, or transferred within, the Consolidated Revenue Fund on and after 1 July 1989 and before the relevant payment is made in accordance with a direction of the Minister under section 96G; 'Notional interest' means an amount of notional interest, being the interest at such rates as are from time to time determined by the Minister for Finance that would have accrued, on or after 1 July 1989 and before the relevant payment is made, in respect of the premiums received if such interest had been payable to the previous Commission and to Comcare; 'Previous payments' means the total of the amounts paid to the previous Commission or to Comcare for the purposes of the performance of their functions under this Act before the relevant payment is made. "(3) For the purposes of the application at any time after the commencement of this section of the formula referred to in subsection (2), the Minister for Finance may determine: (a) the total of the amounts of the premiums paid into, or transferred within, the Consolidated Revenue Fund during the period commencing on 1 July 1989 and ending immediately before the commencement of this section; and (b) the notional interest that would have accrued in respect of that period; and (c) the total of the amounts paid to the previous Commission or to Comcare for the purposes of the performance of their functions under this Act during that period. "(4) In this section: 'premium' includes a contribution paid by a Department or Commonwealth authority under section 98 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988, or of that Act as amended, as that section applied in respect of financial years that ended before 1 July 1991. Appropriation "90D. The Consolidated Revenue Fund is appropriated for the purposes of sections 90B and 90C.". Money of Comcare 19. Section 91 of the Principal Act is amended: (a) by inserting "otherwise than under section 90D" in subsection (1) after "Parliament"; (b) by inserting in subsection (2) "section 90B or 90C or" before "subsection"; (c) by omitting paragraph (4)(a) and substituting the following paragraph: "(a) on fixed deposit with the Reserve Bank of Australia or with another bank approved by the Treasurer for the purposes of this paragraph; or". 20. Section 96 of the Principal Act is repealed and the following section is substituted: Estimates of premiums "96. The Commission must prepare an estimate, in such form as the Minister directs, of the amount (if any) of premium of each Department or Commonwealth authority for the financial year starting on 1 July 1992 and for each later financial year.". Amount of premium 21. Section 96A of the Principal Act is amended by omitting the definitions of "Estimated liability" and "Estimated administrative costs" and substituting the following definitions: " 'Estimated liability' means the estimated amount of Comcare's liability under this Act in respect of the number of injuries that the Commission estimates will be sustained: (a) in the case of a Department, or in the case of an authority that, at the commencement of that financial year, does not hold a licence in force under Part VIIIA—by employees of the Department or authority during that financial year; and (b) in the case of an authority that, at the commencement of that financial year, holds such a licence—by employees of the authority during that financial year in respect of whom Comcare is liable to pay the whole or a part of the compensation payable in respect of those injuries; being an amount estimated by the Commission using such methods and having regard to such matters (if any) as the Minister directs; 'Estimated administrative costs' means the estimated administrative costs of Comcare during that financial year that are reasonably attributable to the Department or authority, having regard to: (a) in the case of a Department, or in the case of an authority that, at the commencement of that financial year, does not hold a licence in force under Part VIIIA—the estimated number of claims made in respect of those injuries; or (b) in the case of an authority that, at the commencement of that financial year, holds such a licence—the estimated number of claims made in respect of those injuries in relation to which Comcare will be required to perform any functions under this Act.". Information to be given to Commission 22. Section 96C of the Principal Act is amended by omitting from subsection (2) "(other than an administering authority)". Variation of estimate 23. Section 96H of the Principal Act is amended by adding at the end of subsection (1): "; or (e) in the case of an authority: (i) a licence is, or is to be, granted to the authority; or (ii) a licence held by the authority is, or is to be, revoked.". Repeal of Part VIII 24. Part VIII of the Principal Act is repealed. 25. Before Part IX of the Principal Act the following Part is inserted: "PART VIIIA—LICENCES TO AUTHORITIES TO ACCEPT LIABILITY FOR PAYMENT OF, AND TO DETERMINE, CLAIMS Object "107A. The object of this Part is to provide for the licensing of certain Commonwealth authorities for the purpose of doing either or both of the following: (a) transferring to them the whole or a part of the liability to pay compensation in respect of some or all of their employees; (b) transferring to them the function of determining certain claims for compensation in respect of some or all of their employees. Interpretation "107B. In this Part, unless the contrary intention appears: 'claim' includes a request; 'determination' includes a decision or requirement; 'variation', in relation to the conditions to which a licence is subject, includes the addition of a new condition, an alteration to an existing condition or the omission of an existing condition. Classes of licence "107C. There are to be 3 classes of licences that may be granted for the purposes of this Part, namely Class 1 Licences, Class 2 Licences and Class 3 Licences. Application for licence "107D.(1) A Commonwealth authority may apply to the Commission for a licence under this Part. "(2) The application must: (a) be in writing in such form as the Commission approves; and (b) specify the class of licence applied for; and (c) be signed by the principal officer of the authority; and (d) be accompanied by such documents as the Commission directs; and (e) be lodged at, or sent by post to, the office of the Commission. "(3) The authority is liable to pay to the Commonwealth in respect of the application an application fee equal to the amount estimated by the Commission to be the cost of considering the application. "(4) The Commission is to give written notice to the authority of the amount of the application fee and: (a) if the notice is given before the application is made—the application fee is to accompany the application; or (b) otherwise—the application fee is to be paid as soon as practicable after the notice is given. Consideration of application "107E.(1) The Commission must consider the application in accordance with the criteria applicable in respect of the class of licence applied for and must give written notice to the Commonwealth authority of the Commission's decision on the application. "(2) A notice given to an authority is to include brief particulars of the reasons for the Commission's decision. Criteria for grant of licences "107F.(1) This section sets out the criteria to be considered by the Commission in deciding an application by a Commonwealth authority for a licence. "(2) The criteria for a Class 1 Licence are: (a) whether the authority is likely to have sufficient financial resources to discharge its liability to pay compensation in respect of its employees; and (b) any other matters that the Commission considers relevant. "(3) The criteria for a Class 2 Licence are: (a) whether the authority is likely to be able to meet the standards set by the Commission for the management of claims for compensation and the rehabilitation of employees; and (b) the likely attitude of employees of the authority to the grant of such a licence; and (c) any other matters that the Commission considers relevant. "(4) The criteria for a Class 3 Licence are the same as the criteria for a Class 1 Licence and a Class 2 Licence. Conditions of licence "107G.(1) A licence is subject to: (a) a condition that the authority will comply with the requirements of this Act that are applicable to it; and (b) without limiting the generality of paragraph (a), a condition that the authority will pay any fees referred to in section 107R that are applicable to it; and (c) such other conditions as the Commission determines when granting the licence. "(2) At any time while a licence is in force the Commission may vary the conditions to which the licence is subject under paragraph (1)(c). "(3) Without limiting the conditions to which a licence may be subject, a licence may be subject to any one or more of the following conditions: (a) a condition that the licence applies only in respect of claims made by a specified class of employees of the authority, for example employees employed in a particular State or Territory; (b) a condition that, if both the authority and Comcare are parties to any proceedings (including proceedings under Part VI) in relation to a matter arising under this Act, the authority will not cause or permit to be made on its behalf to the court or tribunal concerned any submission that Comcare or the Commission has requested the authority not to make; (c) in the case of a Class 1 Licence or a Class 3 Licence: (i) a condition that the liability of the authority to pay compensation, or make any other payments, under this Act in relation to a claim in respect of an injury, loss or damage suffered by, or in respect of the death of, an employee of the authority is not to exceed a specified amount; (ii) a condition that the authority will obtain such bank or other guarantees or other securities as the Commission directs for the due discharge of the authority's liability in respect of claims, or particular classes of claims, under this Act or in respect of so much of that liability as exceeds a specified amount; (iii) a condition that the authority will maintain such funds, and in such form, as the Commission directs for the purpose of enabling the due discharge of the authority's liability in respect of claims, or particular classes of claims, under this Act or in respect of so much of that liability as exceeds a specified amount; (d) in the case of a Class 2 Licence or a Class 3 Licence: (i) a condition that the responsibility of the authority for determining claims does not extend to making a determination that would involve the payment of an amount which, or amounts the total of which, exceeds a specified amount; (ii) a condition that the reconsideration of determinations made by the authority is to be carried out by employees of the Commonwealth or of another Commonwealth authority. "(4) If the Commission varies any of the conditions to which a licence is subject: (a) the Commission must give to the holder of the licence, and cause to be published in the Gazette, a notice setting out the variations; and (b) it is not necessary for the licence to be amended to include the variations. "(5) A variation of a condition to which a licence is subject takes effect when the notice referred to in paragraph (4)(a) is published in the Gazette. Duration of licence "107H.(1) A licence comes into force on the date of publication in the Gazette of the notice referred to in paragraph 107J(1)(a) and continues in force for such period as the Commission determines. "(2) The Commission may extend a licence for such period or periods as the Commission determines. Grant of licence "107J.(1) If the Commission decides to grant a licence to a Commonwealth authority, the Commission must: (a) cause to be published in the Gazette a notice: (i) stating that the licence has been granted to the authority; and (ii) specifying the period of the licence; and (iii) setting out any conditions to which the licence is subject under paragraph 107G(1)(c); and (b) issue the licence to the authority. "(2) The licence must: (a) be in such form as the Commission determines; and (b) specify the class of licence; and (c) specify the date of commencement of the licence and the period of the licence; and (d) set out any conditions to which the licence is subject under paragraph 107G(1)(c). Effect of grant of Class 1 Licence "107K.(1) If a Commonwealth authority is granted a Class 1 Licence, the following provisions have effect in respect of employees of the authority to whom the licence relates ('relevant employees'). "(2) Subject to subsection (3), the authority is liable to pay compensation, or make any other payments, under this Act in respect of an injury, loss or damage suffered by, or in respect of the death of, a relevant employee after the licence comes into force, and Comcare is not liable to pay that compensation or make those other payments. "(3) If the licence is subject to a condition that the liability of the authority to pay compensation, or make any other payments, under this Act in relation to a claim in respect of an injury, loss or damage suffered by, or in respect of the death of, an employee of the authority is not to exceed a specified amount: (a) the authority's liability in respect of such a claim does not exceed that amount; and (b) Comcare continues to be liable to pay compensation, or make any other payments, under this Act in respect of such a claim to the extent to which the authority is not liable under paragraph (a) to pay that compensation or make those other payments. "(4) The imposition by this section of any liability on a Commonwealth authority in respect of an injury, loss or damage suffered by, or in respect of the death of, a relevant employee does not render the authority liable to have any proceedings (including proceedings under Part VI) brought against it in respect of the injury, loss, damage or death but, if any such proceedings are brought against Comcare in respect of the injury, loss, damage or death, Comcare must tell the authority as soon as practicable that the proceedings have been brought so that the authority may apply to become a party to the proceedings. "(5) A decision in any proceedings referred to in subsection (4) is binding on both Comcare and the authority, whether or not the authority becomes a party to the proceedings. Effect of grant of Class 2 Licence "107L.(1) If a Commonwealth authority is granted a Class 2 Licence, the following provisions have effect in respect of employees of the authority to whom the licence relates ('relevant employees'). "(2) Subject to subsection (3), the authority has the responsibility for determining claims for compensation or for other payments under this Act in respect of an injury, loss or damage suffered by, or in respect of the death of, a relevant employee, whether the injury, loss, damage or death occurred before or after the licence comes into force, but Comcare continues to be liable to pay that compensation or make those other payments. "(3) If the licence is subject to a condition that the responsibility of the authority for determining claims does not extend to making a determination that would involve the payment of an amount which, or amounts the total of which, exceeds a specified amount: (a) the authority's responsibility for determining claims is limited accordingly; and (b) if the authority makes a determination in the expectation that the amount, or the total of the amounts, payable under the determination will not exceed the specified amount but the amount or total so payable exceeds the specified amount—the authority must as soon as practicable give written notice to that effect to Comcare. "(4) Subsections (5) to (8) apply only if: (a) the authority has the responsibility for determining the relevant claim; or (b) if a determination was made at a time before the licence came into force—the authority would have had the responsibility for determining the relevant claim if the licence had been in force at that time. "(5) Any determination made by Comcare and in force immediately before the day on which the licence comes into force in respect of its liability to pay compensation, or make any other payment, under this Act in respect of an injury, loss or damage suffered by, or in respect of the death of, a relevant employee is taken, on and after that day, to have been made by the authority. "(6) Any other thing done by Comcare before the day on which the licence comes into force for the purposes of or in connection with the making of a determination in respect of its liability to pay compensation, or make any other payment, under this Act in respect of an injury, loss or damage suffered by, or in respect of the death of, a relevant employee is taken, on and after that day, to have been done by the authority. "(7) Any notice or claim under Part V in respect of an injury, loss or damage suffered by, or in respect of the death of, a relevant employee, whether the injury, loss, damage or death occurred before or after the licence comes into force, is to be given or made to the authority. "(8) Any notice or claim given or made to Comcare under Part V and in force immediately before the day on which the licence comes into force, being a notice or claim in respect of an injury, loss or damage suffered by, or in respect of the death of, a relevant employee, continues to have effect, on and after that day, as if it had been given or made to the authority. "(9) Any proceedings (including proceedings under Part VI) to which Comcare was a party, being proceedings relating to a determination that is taken by subsection (5) to have been made by the authority, in respect of an injury, loss or damage suffered by, or in respect of the death of, a relevant employee that had been brought but not completed before the day on which the licence comes into force, may be continued on and after that day and, if the proceedings are so continued: (a) the authority replaces Comcare as a party to the proceedings; but (b) Comcare is entitled to become a party to the proceedings. "(10) Any proceedings (including proceedings under Part VI) that may be brought in relation to a determination by the authority in respect of an injury, loss or damage suffered by, or in respect of the death of, a relevant employee, whether the injury, loss, damage or death occurred before or after the licence comes into force, are to be brought against the authority but, if proceedings are so brought: (a) the authority must tell Comcare as soon as practicable that the proceedings have been brought; and (b) Comcare is entitled to become a party to the proceedings. "(11) Comcare becomes a party to the proceedings by filing a notice in the registry of the court or tribunal concerned stating that it wishes to become a party. "(12) Comcare must serve a copy of the notice on the authority and on the other party, or each other party, to the proceedings. "(13) A decision in any proceedings referred to in subsection (9) or (10) is binding on the authority and on Comcare, whether or not Comcare becomes a party to the proceedings. Effect of grant of Class 3 Licence "107M.(1) If a Commonwealth authority is granted a Class 3 Licence, the following provisions have effect in respect of employees of the authority to whom the licence relates ('relevant employees'). "(2) Subject to subsection (3), the authority is liable to pay compensation, or make any other payments, under this Act in respect of an injury, loss or damage suffered by, or in respect of the death of, a relevant employee after the licence comes into force, and Comcare is not liable to pay that compensation or make those other payments. "(3) If the licence is subject to a condition that the liability of the authority to pay compensation, or make any other payments, under this Act in relation to a claim in respect of an injury, loss or damage suffered by, or in respect of the death of, an employee of the authority is not to exceed a specified amount: (a) the authority's liability in respect of such a claim does not exceed that amount; and (b) Comcare continues to be liable to pay compensation, or make any other payments, under this Act in respect of such a claim to the extent to which the authority is not liable under paragraph (a) to pay that compensation or make those other payments. "(4) Subject to subsection (5), the authority has the responsibility for determining claims for compe