New South Wales: Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 No 86 An Act to provide for the effective management of work-related injuries and injury compensation for workers in respect of such injuries; and for other purposes. Chapter 1 Preliminary 1 Name of Act This Act is the Workplace Injury Management and Workers Compensation Act 1998. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 System objectives The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives— (a) to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury, (b) to provide— • prompt treatment of injuries, and • effective and proactive management of injuries, and • necessary medical and vocational rehabilitation following injuries, in order to assist injured workers and to promote their return to work as soon as possible, (c) to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses, (d) to be fair, affordable, and financially viable, (e) to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work, (f) to deliver the above objectives efficiently and effectively. 4 Definitions (cf 1987 s 3; 1989 s 3) (1) In this Act— Authority means the State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015. claim means a claim for compensation or work injury damages that a person has made or is entitled to make. claimant means a person who makes or is entitled to make a claim. coal miner matter means any matter arising under the Workers Compensation Acts concerning a claim in respect of a worker employed in or about a mine. Commission means the Personal Injury Commission of New South Wales established by the Personal Injury Commission Act 2020. Commission rules has the same meaning as in the Personal Injury Commission Act 2020. compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts. Compensation Court means the Compensation Court of New South Wales constituted under the Compensation Court Act 1984. current work capacity—see Schedule 3 to the 1987 Act. death benefit compensation means compensation under Division 1 (Compensation payable on death) of Part 3 of the 1987 Act. dependants of a worker means such of the members of the worker's family as were wholly or in part dependent for support on the worker at the time of the worker's death, or would but for the incapacity due to the injury have been so dependent, and includes— (a) a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in the place of a parent to the worker, and (b) a divorced spouse of the worker so dependent, and (c) a person so dependent who— (i) in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—although not legally married to the worker, lived with the worker as the worker's husband or wife on a permanent and genuine domestic basis, or (ii) in relation to an injury received after that commencement—is the de facto partner of the worker. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. Deputy President means a Deputy President of the Commission. doctor means a medical practitioner. dust disease has the same meaning as it has in the Workers' Compensation (Dust Diseases) Act 1942. employer includes— (a) the legal personal representative of a deceased employer, or (b) a government employer, or (c) a former employer. Without limiting the meaning of the expression, an employer can be an individual, a corporation, a firm, an unincorporated body of persons, a government agency or the Crown. exercise a function includes perform a duty. existing claim has the same meaning as in Chapter 7 (New claims procedures). existing claim matter has the same meaning as in Chapter 7 (New claims procedures). financial year means a year commencing 1 July. former 1926 Act means the Workers' Compensation Act 1926. former licensed insurer means a person (not being a licensed insurer) who— (a) was previously a licensed insurer under this Act, the 1987 Act or section 27 of the former 1926 Act, and (b) continues to have liabilities under policies of insurance previously issued or renewed by the person. function includes a power, authority or duty. government agency means any department, person or body exercising executive or administrative functions on behalf of the Government. government employer means the Crown or any government agency, and includes— (a) a public health organisation within the meaning of the Health Services Act 1997, and (a1) a person exercising employer functions for the Crown or a government agency in relation to a worker, and Example— The Government Sector Employment Act 2013, sections 26 and 31 provide for Secretaries of Departments and certain other heads of Public Service agencies to exercise the employer functions of the Government of New South Wales. (b) an employer prescribed by the regulations. government worker means a worker whose employer is a government employer. GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth. ICNSW means Insurance and Care NSW constituted under the State Insurance and Care Governance Act 2015. incapacity includes a disfigurement that is sufficient to affect the earning capacity of a worker or a worker's opportunities for employment. Independent Review Officer means the Independent Review Officer appointed under Schedule 5 to the Personal Injury Commission Act 2020. injury— (a) means a personal injury arising out of or in the course of employment, and (b) includes— (i) a disease contracted by a worker in the course of employment, where the employment was a contributing factor to the disease, or (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, but (c) does not include (except in the case of a worker employed in or about a mine)— (i) a dust disease, or (ii) the aggravation, acceleration, exacerbation or deterioration of a dust disease. insurance includes indemnity. lump sum compensation means compensation under Division 4 (Compensation for non-economic loss) of Part 3 of the 1987 Act. mandatory notification requirement—see section 40D. mediator means a person appointed as a mediator for the purposes of this Act under the Personal Injury Commission Act 2020. medical assessment means assessment of a medical dispute by a medical assessor under Part 7 of Chapter 7. medical assessor means a person appointed under the Personal Injury Commission Act 2020 as a medical assessor for the purposes of this Act. medical certificate means a certificate given by a medical practitioner. medical dispute has the meaning given by section 319. medical expenses compensation means compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of the 1987 Act. member of a family means spouse (including wife or husband), father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister. motor accident damages means damages to which Part 6 of the Motor Accidents Act 1988, Chapter 5 of the Motor Accidents Compensation Act 1999 or Part 4 of the Motor Accident Injuries Act 2017 applies. new claim has the same meaning as in Chapter 7 (New claims procedures). new claim matter has the same meaning as in Chapter 7 (New claims procedures). no current work capacity—see Schedule 3 to the 1987 Act. non-presidential member means a member of the Commission other than a presidential member. pain and suffering compensation means compensation for pain and suffering under section 67 of the 1987 Act. permanent impairment compensation means compensation for permanent impairment under section 66 of the 1987 Act. policy of insurance means a policy of insurance that an employer obtains under the 1987 Act or the former 1926 Act. premium income— (a) in relation to contributions payable under this Act or the 1987 Act by an insurer (other than a specialised insurer) in respect of a financial year—means the amount the insurer receives during that financial year as premiums in respect of policies of insurance issued or renewed by the insurer (whether the policies are issued or renewed during that financial year or during a previous financial year), or (b) in relation to contributions payable under this Act or the 1987 Act by a specialised insurer in respect of a financial year—means the amount the insurer receives, whether during or after that financial year, as premiums in respect of policies of insurance issued or renewed by the insurer during that financial year, and, in relation to contributions payable by any insurer, includes any amount comprising or attributable to GST and any amount prescribed by the regulations as included for the purposes of this definition in relation to that financial year, but does not include any amount prescribed by the regulations as excluded for the purposes of this definition in relation to that financial year. President means the President of the Commission. presidential member has the same meaning as in the Personal Injury Commission Act 2020. principal registrar means the principal registrar of the Commission. records includes books, accounts, minutes, registers, deeds, documents and any other sources of information compiled, recorded or stored in written form, on microfilm, by electronic process or in any other manner. related body corporate has the same meaning as it has in the Corporations Act 2001 of the Commonwealth. SafeWork NSW means SafeWork NSW as referred to in clause 1 of Schedule 2 to the Work Health and Safety Act 2011. Self Insurance Corporation means the NSW Self Insurance Corporation constituted by the NSW Self Insurance Corporation Act 2004. spouse of a person means— (a) in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—a person to whom the person is legally married (including a husband or wife), or (b) in relation to an injury received after that commencement— (i) a person to whom the person is legally married (including a husband or wife), or (ii) a de facto partner of the person. suitable employment—see section 32A of the 1987 Act. the 1987 Act means the Workers Compensation Act 1987. training contract has the meaning it has in the Apprenticeship and Traineeship Act 2001. Note— A training contract is a contract entered into for the purpose of establishing an apprenticeship or traineeship. weekly payment, in relation to compensation, means a weekly payment of compensation under Division 2 of Part 3 of the 1987 Act in respect of a period of total or partial incapacity for work. work capacity decision—see section 43 of the 1987 Act. work health and safety legislation means— (a) the Work Health and Safety Act 2011 and the instruments under that Act, or (b) any other Act or instrument (or part) prescribed by the regulations under this Act. work injury means an injury in respect of which compensation is payable. work injury damages has the same meaning as in Chapter 7 (New claims procedures). Workers Compensation Guidelines means guidelines issued under section 376. Workers Compensation Operational Fund means the Workers Compensation Operational Fund established under this Act. worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). However, it does not include— (a) a member of the NSW Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906, or (b) a person whose employment is casual (that is for 1 period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer's trade or business, or (c) an officer of a religious or other voluntary association who is employed upon duties for the association outside the officer's ordinary working hours, so far as the employment on those duties is concerned, if the officer's remuneration from the association does not exceed $700 per year, or (d) except as provided by Schedule 1, a registered participant of a sporting organisation (within the meaning of the Sporting Injuries Insurance Act 1978) while— (i) participating in an authorised activity (within the meaning of that Act) of that organisation, or (ii) engaged in training or preparing himself or herself with a view to so participating, or (iii) engaged on any daily or periodic journey or other journey in connection with the registered participant so participating or the registered participant being so engaged, if, under the contract pursuant to which the registered participant does any of the things referred to above in this paragraph, the registered participant is not entitled to remuneration other than for the doing of those things. Workers Compensation Acts means this Act and the 1987 Act. workers compensation legislation means— (a) this Act and the instruments under this Act, or (b) the 1987 Act and the instruments under that Act, or (c) the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 and the instruments under that Act, or (d) the Workers' Compensation (Dust Diseases) Act 1942 and the instruments under that Act, or (e) any other Act or instrument (or part) prescribed by the regulations. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Extended meaning of injured worker A reference in this Act to a worker who has been injured includes, if the worker is dead, a reference to the worker's legal personal representative, or the worker's dependants, or any other person to whom or for whose benefit compensation is payable. (3) Notes Notes in the text of this Act do not form part of this Act. (4) (Repealed) (5) Meaning of "related" The following provisions have effect for the purposes of this section— (a) Persons are related if— (i) one is the parent, or another ancestor, of the other, or (ii) one is the child, or another descendant, of the other, or (iii) they have a parent in common. (b) For the purposes of paragraph (a)— (i) a person is taken to be an ancestor or descendant of another person even if the relationship between them is traced through, or to, a person who is or was an adopted child, and (ii) the relationship of parent and child between an adoptive parent and an adopted child is taken to continue even though the order by which the adoption was effected has been annulled, cancelled or discharged or the adoption has otherwise ceased to be effective, and (iii) the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, is taken to be or to have been the natural relationship of child and parent, and (iv) a person who has been adopted more than once is taken to be the child of each person by whom he or she has been adopted. (c) In paragraph (b), adopted means adopted under the law of any place, whether in Australia or not, relating to the adoption of children. (5A) Subsection (5) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order. (6) Certain references to "mines" A reference to a mine in the definitions of coal miner matter and injury is a reference to a mine within the meaning of the Coal Mines Regulation Act 1982 as in force immediately before its repeal by the Coal Mine Health and Safety Act 2002, but does not include a reference to any place that, in accordance with section 10 (2) of the Work Health and Safety (Mines and Petroleum Sites) Act 2013, is a place to which that Act does not apply. Note— Section 2A of the 1987 Act provides that the 1987 Act is to be construed with, and as if it formed part of, this Act. Accordingly, a reference in this Act to this Act generally includes a reference to the 1987 Act. 5 Deemed employment of workers (cf 1987 s 5) Schedule 1 has effect. 6 Application of Act in certain respects (cf 1987 s 3 (3), (4), (5)) (1) Public or local authority For the purposes of this Act, the exercise of the functions of a public or local authority is taken to be its trade or business. (2) Racing or recreation club For the purposes of this Act, the operations of a racing or recreation club are taken to be its trade or business. (3) NSW Police Force For the purposes of this Act, the Crown is taken to be the employer of members of the NSW Police Force. Note— Members of the NSW Police Force who are contributors to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906 are not workers within the meaning of this Act. That fund was closed to new members on and from 1 April 1988. Accordingly members of the NSW Police Force who are not contributors to that fund are workers within the meaning of this Act. 7 Act binds Crown (cf 1987 s 6) (1) This Act binds the Crown in right of New South Wales and also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. (2) (Repealed) 8 Certain Acts not affected (cf 1987 s 7) Nothing in this Act affects the operation of the following Acts— Workers' Compensation (Dust Diseases) Act 1942, Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987. 9 (Repealed) 9A Application of Act in respect of coal industry (1) The workers compensation company (within the meaning of the Coal Industry Act 2001) is taken to be a licensed insurer that is a specialised insurer under, and for the purposes of, this Act. (2) However, the following provisions of this Act do not apply to or in respect of the workers compensation company— (a) sections 146 and 146A, (b) Parts 3, 4, 5, 6, 7, 8 and 9 of Chapter 5. (3) For avoidance of doubt— (a) an employee of an employer in the coal industry is not eligible to make a claim under Part 9 of Chapter 5, and (b) a person who is taken, under Schedule 1, to be a worker employed by another person is not entitled to make a claim referred to in paragraph (a) if the other person by whom the person is taken to be employed is engaged in the coal industry. (4) The workers compensation company is taken to be the insurer under this Act of all employers in the coal industry (whether or not any such employer maintains a policy of insurance with that company). (5) In this section— employer in the coal industry has the same meaning as in the Coal Industry Act 2001. Chapter 2 Administration Part 1 10–13 (Repealed) Part 2 General workers compensation functions 14–21 (Repealed) 22 Objectives and general functions of Authority under workers compensation legislation (1) The principal objectives of the Authority in exercising its functions under the workers compensation legislation are as follows— (a) to promote the prevention of injuries and diseases at the workplace and the development of healthy and safe workplaces, (b) to promote the prompt, efficient and effective management of injuries to persons at work, (c) to ensure the efficient operation of workers compensation insurance arrangements, (d) to ensure the timely and effective resolution of disputes arising under the workers compensation legislation, (e) to ensure the appropriate co-ordination of arrangements for the administration of the schemes to which the workers compensation legislation relates. (2) The general functions of the Authority under the workers compensation legislation are as follows— (a) to be responsible for ensuring compliance with the workers compensation legislation, (b) to be responsible for the day to day operational matters relating to the workers compensation scheme, (c) to establish procedures for dealing with complaints made by employers and by injured workers in relation to matters arising under the workers compensation scheme, (d) to monitor and report to the Minister on the operation and effectiveness of the workers compensation legislation and on the performance of the workers compensation scheme, (e) to undertake such consultation as it thinks fit in connection with current or proposed legislation relating to the workers compensation scheme, (f) to monitor and review key indicators of financial viability and other aspects of the workers compensation scheme, (g) to report and make recommendations to the Minister on such matters as the Minister requests or the Authority considers appropriate. 23 Specific functions (cf 1989 s 13) (1) The Authority has, in particular, the following functions— (a) to initiate and encourage research to identify efficient and effective strategies for the prevention and management of work injury and for the rehabilitation of injured workers, (b) to ensure the availability of high quality education and training in such prevention, management and rehabilitation, (c) to develop equitable and effective programs to identify areas of unnecessarily high costs in or for schemes to which the workers compensation legislation relates, (d) to foster a co-operative relationship between management and labour in relation to the health, safety and welfare of persons at work, (e) (Repealed) (f) to identify (and facilitate or promote the development of programs that minimise or remove) disincentives for injured workers to return to work or for employers to employ injured workers, or both, (g) to assist in the provision of measures to deter and detect fraudulent workers compensation claims, (h) to develop programs to meet the special needs of target groups, including— • workers who suffer severe injuries • injured workers who are unable to return to their pre-injury occupation • injured workers who are unemployed • persons who live in remote areas • women • persons of non-English speaking background • persons who have a disability, (i) to facilitate and promote the establishment and operation of return-to-work programs, (j) to investigate workplace accidents, (j1) to enter into arrangements with SafeWork NSW for or in connection with the enforcement of the work health and safety legislation, (k) to develop policies for injury management, worker rehabilitation, and assistance to injured workers, (l) to monitor the operation of requirements and arrangements imposed or made by or under the workers compensation legislation, including requirements and arrangements for all or any of the following— • injury management • worker rehabilitation • workers compensation insurance • workers compensation insurer licensing, and to commence and conduct prosecutions for offences in connection with any such requirements and arrangements, (m) to collect, analyse and publish data and statistics, as the Authority considers appropriate, (n) to provide advisory services to workers, employers, insurers and the general community (including information in languages other than English), (o) to provide funds for or in relation to— • measures for the prevention or minimisation of work injuries or diseases • work health and safety education, (p) to arrange, or facilitate the provision of, interpreter services to assist injured workers, (q) to provide and administer (subject to the regulations) a legal aid service for persons who are parties to proceedings relating to workers compensation. (r) (Repealed) (2) (Repealed) 23A (Repealed) Parts 3–5 24–33 (Repealed) Part 6 Financial provisions Division 1 Workers Compensation Operational Fund 34 Workers Compensation Operational Fund (cf 1989 s 18) The Authority is required to establish and maintain a Workers Compensation Operational Fund. 35 Payments into and from Fund (cf 1989 s 19) (1) The following is to be paid into the Workers Compensation Operational Fund— (a) money contributed by insurers, self-insurers and deemed insurers under Division 2, (a1) money approved by the Minister to be paid into the Fund from the Insurance Fund under subsection (1A), (a2) the investment earnings accruing from the investment of the Fund, (b) money required to be paid into the Fund by or under this or any other Act, (c) all other money received by the Authority and not otherwise appropriated. (1A) The Minister may approve the payment into the Fund of amounts from the Insurance Fund having regard to the estimates, provisions and determinations made by the Authority under section 38 and any need for additional funding to provide for the proper exercise of the Authority's functions. (2) The following is to be paid from the Workers Compensation Operational Fund— (a) the remuneration, allowances, office accommodation and other associated costs of the Board of the Authority and the members of staff of the Authority to the extent that those costs relate to the administration of this Act and the 1987 Act, (b) the remuneration, allowances, office accommodation and other associated costs of SafeWork NSW, (c) the remuneration of the Independent Review Officer and staff of the Independent Review Officer and costs incurred in connection with the exercise of the functions of the Independent Review Officer arising under the Workers Compensation Acts, (d), (e) (Repealed) (e1) the costs associated with the establishment and operation of the Workers Compensation Division of the Commission arising from the Workers Compensation Acts, including— (i) the expenditure incurred by the Commission in providing medical assessments and reviews of medical assessments for the purposes of those Acts, and (ii) the expenditure incurred by the Commission in providing services (including mediation services) in respect of claims for work injury damages, (f) payments required to be made under section 35A (Residual and ongoing costs of Compensation Court jurisdiction), (f1) fees the Authority is required to pay to the Civil and Administrative Tribunal for applications made under the State Insurance and Care Governance Act 2015, section 26F in connection with the provision of relevant services for the purposes of this Act, (g) all payments required to meet expenditure incurred in relation to the functions of the Authority, (h) all other money required by or under this or any other Act to be paid from the Fund. (3) The maximum amount payable from the Workers Compensation Operational Fund for the costs of operation of the Compensation Court is to be the amount determined by the Minister administering the Compensation Court Act 1984 after consultation with the Minister administering this Act. (4) The Authority may pay from the Fund into the Insurance Fund any amount by which the Authority determines the Fund to be in surplus from time to time. Any such surplus may be paid to the Insurance Fund by transfer of any investment held by the Fund (as an alternative to the payment of money). 35A Certain ongoing costs of Compensation Court jurisdiction (1) The following costs are payable from the Workers Compensation Operational Fund— (a) the costs of operation of the Compensation Court (until the repeal of the Compensation Court Act 1984), (b) such of the costs of operation of the District Court, incurred on or before 30 June 2005, relating to matters that would have been matters within the jurisdiction of the Compensation Court (had the repeal Act not been enacted) as the Ministers agree are to be paid from the Fund, and (c) such of the ongoing costs of operation of the Compensation Court (those costs determined as if the repeal Act had not been enacted) as the Ministers agree are to be paid from the Fund, and (d) such other costs resulting from the operation of the repeal Act as the Ministers agree are to be paid from the Fund. (2) The costs of operation of a court include— (a) the remuneration (including allowances) of Judges of the court and of officers and employees of the public service employed in connection with the exercise of functions of the court, and (b) costs associated with the employment and remuneration of those Judges and officers and employees and of retired Judges of the court (such as contributions for and payments of pensions and superannuation benefits), and (c) court accommodation. (3) In this section— repeal Act means the Compensation Court Repeal Act 2002. the Ministers means the Minister administering the District Court Act 1973 and the Minister administering this Act. 36 Investment The Authority may invest money in the Workers Compensation Operational Fund that is not immediately required for the purposes of the Fund— (a) if the Authority is a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way that the Authority is permitted to invest money under that Part, or (b) if the Authority is not a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way approved by the Minister with the concurrence of the Treasurer. Division 2 Contributions to Workers Compensation Operational Fund 37 Definitions (cf 1987 s 258) In this Division— Comcare employer means an employer who— (a) is licensed under Part VIII of the Safety, Rehabilitation and Compensation Act 1988 of the Commonwealth after a declaration of eligibility under that Part made on the basis that the employer is a corporation carrying on business in competition with a Commonwealth authority or with another corporation that was previously a Commonwealth authority, and (b) would otherwise be required— (i) to obtain and maintain in force a policy of insurance pursuant to section 155 of the 1987 Act, or (ii) to be licensed as a self-insurer. deemed insurer means a corporation (other than a licensed insurer) that is a party to a claims transfer agreement under Division 6 (Transfer of claims) of Part 7 of the 1987 Act. deemed premium income, in relation to the contribution payable by a self-insurer or Comcare employer under this Division for any period during a financial year, means the amount that the self-insurer or Comcare employer would have been liable to pay (in such circumstances as may be prescribed by the regulations) to a licensed insurer as premiums on policies of insurance that would otherwise be required under the 1987 Act during that period if the person were not a self-insurer or Comcare employer, and— (a) includes any amount prescribed by the regulations for the purposes of this paragraph in relation to that financial year, and (b) does not include any amount prescribed by the regulations for the purposes of this paragraph in relation to that financial year. financial year, in relation to an insurer— (a) includes the period after 4 pm on the day preceding the first day of the financial year, and (b) does not include the period after 4 pm on the last day of the financial year. insurer means a licensed insurer or a former licensed insurer who was previously a licensed insurer under this Act. 38 Assessment by Authority of amount to be contributed to Fund (cf 1987 s 260) The Authority is required, as soon as practicable in respect of each financial year— (a) to make an estimate of the total of the amounts already paid and the amounts to be paid from the Workers Compensation Operational Fund during that financial year, and (b) to determine what amounts, if any, are to be set aside as provision to meet expenditure from the Fund in future years, and specify for what purpose each such provision is being made, and (c) to make an estimate of the total amounts (including the amounts already received) to be received into the Fund during that financial year otherwise than by way of contributions in respect of that financial year from insurers, deemed insurers and Comcare employers under this Division, and (c1) to make an estimate of the amount required to be contributed to the Fund from the Insurance Fund during that financial year, and (d) to determine the total amount to be contributed to the Fund in respect of that financial year by insurers, deemed insurers and Comcare employers under this Division after having regard to— (i) the amounts standing to the credit of the Fund at the beginning of the year, including any amounts set aside in earlier years as provisions to meet expenditure in later years, and (ii) the amounts estimated under paragraph (c) to be received into the Fund during the year, and (iii) the amounts to be contributed to the Fund from the Insurance Fund during the year, and (e) to specify in writing the estimates, provisions and amounts to be contributed to the Fund by insurers, deemed insurers and Comcare employers. 39 Contributions to Fund by insurers and self-insurers (cf 1987 s 261) (1) Each insurer, deemed insurer and self-insurer must pay the contributions prescribed by this section to the Authority for payment into the Workers Compensation Operational Fund. (2) The contribution to be paid by an insurer in respect of each financial year is an amount equal to the percentage (determined by the Authority in accordance with this section) of the premium income of the insurer in respect of that financial year. (3) The contribution to be paid by a self-insurer, in respect of each financial year (being a financial year during the whole or part of which the person was a self-insurer) is an amount equal to the percentage (determined by the Authority in accordance with this section) of the deemed premium income of the self-insurer during the relevant period when the person was a self-insurer. (3A) The contribution to be paid by a deemed insurer, in respect of each financial year (being a financial year during the whole or part of which the person was a deemed insurer), is an amount determined by the Authority in accordance with the regulations. (4) The percentage determined by the Authority pursuant to subsections (2) and (3)— (a) is to be such as, in the opinion of the Authority, will be sufficient to yield the total amount to be contributed to the Fund by insurers and self-insurers in respect of the relevant financial year as determined pursuant to section 38, and (b) is to be the same percentage for all insurers and for all self-insurers, and (c) (Repealed) (5) A contribution by an insurer is payable at such times and in respect of premium income received during such periods in such manner as may be determined by the Authority and notified to the insurer. (6) A contribution by a self-insurer or deemed insurer is payable in such instalments and at such times as may be determined by the Authority and notified to the self-insurer or deemed insurer. (6A) The Authority may, at any time during or after a financial year, re-determine the percentages determined pursuant to subsections (2) and (3) in respect of the financial year if the estimated total amount of premium income and deemed premium income for the financial year is less than the previously estimated amount on which the original determination of the percentage was based. (6B) If a percentage is re-determined, the Authority is to make the necessary adjustments to the contributions payable by insurers and self-insurers. (7) If a contribution payable by an insurer or deemed insurer has not been paid within the time prescribed by or under this section— (a) the insurer or deemed insurer is guilty of an offence and liable to a penalty not exceeding 100 penalty units, and (b) the amount of that contribution together with a late payment fee calculated at the rate of 15 per cent of that amount per annum compounded quarterly (or, where another rate is prescribed, that other rate) may be recovered by the Authority as a debt in any court of competent jurisdiction. (8) Subject to subsection (4), more than one percentage may be determined by the Authority for different portions of a financial year for the purposes of subsection (2) or (3). (9) A certificate executed by the Authority as to the amount of a contribution payable under this section by an insurer, self-insurer or deemed insurer specified in the certificate and the due date for payment is (without proof of its execution by the Authority) admissible in proceedings under this section and is evidence of the matters specified in the certificate. (10) The obligation of a person (being a self-insurer or deemed insurer) to make a contribution under this section in respect of any period during which the person was a self-insurer or deemed insurer does not cease merely because the person subsequently ceases to be a self-insurer or deemed insurer. 39A Contributions to Fund by Comcare employers (1) Each Comcare employer must pay the contributions prescribed by this section to the Authority for payment into the Workers Compensation Operational Fund. (2) The contribution to be paid by a Comcare employer, in respect of each financial year (being a financial year during the whole or part of which the person was a Comcare employer), is an amount equal to the percentage (determined by the Authority in accordance with this section) of the deemed premium income of the Comcare employer during the relevant period when the person was a Comcare employer. (3) The percentage determined by the Authority pursuant to subsection (2)— (a) subject to paragraph (b), is to be such as, in the opinion of the Authority, will be sufficient to yield the total amount to be contributed to the Fund by Comcare employers in respect of the relevant financial year as determined pursuant to section 38, and (b) is to be 60%, or such other percentage (not exceeding 70%) as determined by the Authority by order, of the percentage determined in accordance with section 39, and (c) is to be rounded to 2 decimal places, and (d) is to be the same percentage for all Comcare employers. Example— If the percentage determined in accordance with section 39 is 4%, unless an order under subsection (3) (b) has been made, the percentage under subsection (2) will be (60% × 4% =) 2.40%. If the percentage determined in accordance with section 39 is still 4%, but an order under subsection (3) (b) has been made increasing that percentage to 62.1%, then the percentage under subsection (2) will be (62.1% × 4% = 2.484%, then rounded to the nearest two decimal places) 2.48%. (4) A contribution by a Comcare employer is payable in such instalments and at such times as may be determined by the Authority and notified to the Comcare employer. (5) The Authority may, at any time during or after a financial year, re-determine the percentage determined pursuant to subsection (2) in respect of the financial year if the estimated total amount of premium income and deemed premium income for the financial year is less than the previously estimated amount on which the original determination of the percentage was based. (6) If a percentage is re-determined, the Authority is to make the necessary adjustments to the contributions payable by Comcare employers. (7) If a contribution payable by a Comcare employer has not been paid within the time prescribed by or under this section— (a) the Comcare employer is guilty of an offence and liable to a penalty not exceeding 100 penalty units, and (b) the amount of that contribution together with a late payment fee calculated at the rate of 15% of that amount per annum compounded quarterly (or, where another rate is prescribed, that other rate) may be recovered by the Authority as a debt in any court of competent jurisdiction. (8) Subject to subsection (3), more than one percentage may be determined by the Authority for different portions of a financial year for the purposes of subsection (2). (9) A certificate executed by the Authority as to the amount of a contribution payable under this section by a Comcare employer specified in the certificate and the due date for payment is (without proof of its execution by the Authority) admissible in proceedings under this section and is evidence of the matters specified in the certificate. (10) The obligation of a person (being a Comcare employer) to make a contribution under this section in respect of any period during which the person was a Comcare employer does not cease merely because the person subsequently ceases to be a Comcare employer. (11) This section does not apply to a Comcare employer on and from the date that the Comcare employer becomes subject to the Occupational Health and Safety (Commonwealth Employment) Act 1991 of the Commonwealth. Division 3 Financial year of Authority 40 Financial year of Authority (cf 1989 s 21) (1) The financial year of the Authority is the year commencing on 1 July. (2) However, the financial year of the Authority is to be the annual reporting period (if any) for the Authority if the Treasurer has made a determination under section 2.10 of the Government Sector Finance Act 2018 for that period to be different from the period referred to in subsection (1). Part 7 Information collection and sharing 40A Definitions In this Part— data means any facts, statistics, instructions, concepts or other information in a form that is capable of being communicated, analysed or processed (whether by an individual or by a computer or other automated means). insurer means a licensed insurer, a former licensed insurer, a self-insurer or a former self-insurer, and includes a scheme agent. relevant insurance or compensation authority means a relevant authority for the purposes of section 10 of the State Insurance and Care Governance Act 2015, and includes authorities of the Commonwealth, the other States and Territories that administer insurance or compensation schemes. 40B General data gathering, exchange, etc, by Authority, insurers and relevant insurance or compensation authorities (1) The Authority may collect, use and disclose data relating to any of the following— (a) policies of insurance, (b) claims for compensation or for work injury damages, (c) the functions, activities and performance of insurers and employers, (d) the provision of health, legal and other services to injured workers, (e) any matter in respect of which a complaint is made to the Authority or the Independent Review Officer concerning any aspect of the schemes to which the workers compensation legislation relates. (2) For that purpose, the Authority may obtain data from insurers, from relevant insurance or compensation authorities, from hospitals, from government agencies and from any other source. (3) Data concerning policies of insurance, claims and other related matters under the workers compensation legislation and policies, claims and other related matters under other insurance or compensation schemes is authorised to be exchanged between different parts of the Authority. (4) The Authority, the Independent Review Officer and insurers are authorised to exchange data concerning policies of insurance, claims, complaints and other related matters under the workers compensation legislation. (5) The Authority and relevant insurance or compensation authorities are authorised to exchange data concerning policies of insurance, claims and other related matters under the workers compensation legislation and policies, claims and other related matters under other insurance or compensation schemes administered by those authorities. (6) This section applies in respect of data that is personal information or health information about an individual despite anything to the contrary in the Privacy and Personal Information Protection Act 1998 or the Health Records and Information Privacy Act 2002. (7) Section 243 does not prevent the disclosure of information in accordance with this section. 40C Data required to be supplied to Authority by insurers (1) The Authority may require an insurer to disclose to the Authority (within the time and in the manner specified by the Authority) data relating to policies of insurance, claims and other related matters under the workers compensation legislation. (2) Subsection (1) extends to requiring— (a) data relating to any aspect of a workers compensation insurance scheme under the workers compensation legislation (for example, the setting of premiums, the handling of claims, the cost of providing health, legal and other services to injured workers or the detection and prosecution of fraudulent claims), and (b) data relating to policies or claims generally or to particular policies or claims. This subsection does not affect the generality of subsection (1) or any other provision of this Act regarding the obtaining of data by the Authority. (3) An insurer may be required to disclose data to the Authority under this section that is personal information or health information about an individual despite anything to the contrary in the Privacy and Personal Information Protection Act 1998 or the Health Records and Information Privacy Act 2002. (4) Unless the insurer satisfies the court that it is not within its power to comply with a requirement under this section, an insurer that fails to comply with a requirement under this section is guilty of an offence. Maximum penalty—100 penalty units. 40D Mandatory notification (1) The regulations may make provision for or with respect to requiring a scheme participant to notify the Authority of any contravention of this Act of which the scheme participant becomes aware. Any such requirement is a mandatory notification requirement. (2) Each of the following is a scheme participant— (a) an insurer, (b) any specified person, or person of a specified class, on whom functions are conferred by this Act. (3) A mandatory notification requirement may apply in relation to all or any specified class of insurers. (4) Without limiting subsection (1), the regulations may— (a) provide for the form and manner in which notification is to be given, and (b) provide for when the notification is to be given, and (c) provide for the information required to be notified, and (d) provide for any further requirements relating to the notification (such as a requirement to provide further information or answer questions). Chapter 3 Workplace injury management Part 1 Preliminary 41 Object and application of Chapter (1) The object of this Chapter is to establish a system that seeks to achieve optimum results in terms of the timely, safe and durable return to work for workers following workplace injuries. (2) The various provisions of this Chapter apply only in respect of injuries that happen after the commencement of the provision concerned. 41A Chapter applies even when liability disputed The requirements of this Chapter apply even when there is a dispute as to liability. 42 Definitions (1) In this Chapter— injured worker means a worker who has received a workplace injury. injury management means the process that comprises activities and procedures that are undertaken or established for the purpose of achieving a timely, safe and durable return to work for workers following workplace injuries. injury management plan means a plan for co-ordinating and managing those aspects of injury management that concern the treatment, rehabilitation and retraining of an injured worker, for the purpose of achieving a timely, safe and durable return to work for the worker. An injury management plan can provide for the treatment, rehabilitation and retraining to be given or provided to the injured worker. injury management program means a co-ordinated and managed program that integrates all aspects of injury management (including treatment, rehabilitation, retraining, claims management and employment management practices) for the purpose of achieving optimum results in terms of a timely, safe and durable return to work for injured workers. insurer means a licensed insurer, specialised insurer or self-insurer. nominated treating doctor means the treating doctor nominated from time to time by a worker for the purposes of an injury management plan for the worker. significant injury means a workplace injury that is likely to result in the worker being incapacitated for work for a continuous period of more than 7 days, whether or not any of those days are work days and whether or not the incapacity is total or partial or a combination of both. workplace injury means an injury to a worker in respect of which compensation is or may be payable under this Act. (2) If 2 or more employers are or may be liable to pay compensation to an injured worker, a reference in this Chapter to the employer is a reference to whichever of those employers last employed the worker and a reference to the insurer is a reference to that employer's insurer. Part 2 Obligations of insurers, employers and workers 42A Injury management pilot projects Schedule 5A has effect. 42B Claims assistance (1A) A reference to the Authority in this section includes a reference to the Nominal Insurer. (1) The Authority may provide assistance (claims assistance) to injured workers and employers in connection with claims for compensation and work injury damages. (2) In particular the Authority may establish an advisory service to provide claims assistance. (3) The Authority may provide funds to fund the provision of claims assistance by organisations representing employers or employees, including by means of the establishment of an advisory service to provide claims assistance. (4)–(6) (Repealed) 43 Injury management programs (1) An insurer must establish and maintain an injury management program and must revise its injury management program from time to time or when the Authority directs. An insurer must lodge a copy of its injury management program, and any revised injury management program, with the Authority. (1A) Without limiting subsection (1), an insurer that is a scheme agent must revise its injury management program when directed to do so by the Nominal Insurer and lodge a copy of the revised program with the Nominal Insurer. (2) An insurer must give effect to its injury management program and for that purpose must comply with the obligations imposed on the insurer by or under the program. (3) An insurer must take appropriate steps to ensure that each employer who is insured by the insurer is made aware of the employer's obligations under this Chapter and made and kept aware of the requirements of the insurer's injury management program. This subsection does not apply to a self-insurer. (4) Within 3 working days after being notified of a significant injury to a worker, the insurer must initiate action under the insurer's injury management program and must (in accordance with that program) make contact with the worker, the employer (except when the insurer is a self-insurer) and (if appropriate and reasonably practicable) the worker's treating doctor. A working day is any day except a Saturday, Sunday or public holiday. (5) An employer must comply with the obligations imposed on the employer by or under the insurer's injury management program. This subsection does not apply when the employer is a self-insurer. 44 Early notification of workplace injury (1) An injured worker must notify the employer that the worker has received a workplace injury as soon as possible after the injury happens. (2) The employer of an injured worker must notify the insurer or the Nominal Insurer within 48 hours after becoming aware that a worker has received a workplace injury in the manner prescribed by the regulations. (3) If an employer has given notice to the insurer in accordance with subsection (2) of a workplace injury to a worker, the insurer must forward that notice to the Nominal Insurer in accordance with the regulations. (3A) If an employer has given notice to the Nominal Insurer in accordance with subsection (2) of a workplace injury to a worker— (a) the Nominal Insurer must as soon as practicable forward that notice to the insurer, and (b) the notice given to the Nominal Insurer is taken to be notice given to the insurer for the purposes of the employer's policy of insurance. (3B) If an employer or an insurer has given notice to the Nominal Insurer in accordance with subsection (2) or (3) of a workplace injury to a worker, the Nominal Insurer must as soon as practicable forward that notice to the Authority in accordance with the regulations. (4) Subsection (2) do not apply when the insurer is a self-insurer. (5) (Repealed) Note— The obligations imposed by this section are in addition to those imposed by sections 61–69. 45 Injury management plan for worker with significant injury (1) When it appears that a workplace injury is a significant injury, an insurer who is or may be liable to pay compensation to the injured worker must establish an injury management plan for the injured worker. (2) The injury management plan must be established in consultation with the employer (except when the insurer is a self-insurer), the treating doctor and the worker concerned, to the maximum extent that their co-operation and participation allow. (3) The insurer must provide both the employer and the injured worker with information with respect to the injury management plan. (4) The information that the insurer must provide to the injured worker includes a statement to the effect that the worker may have no entitlement to weekly payments of compensation if the worker fails unreasonably to comply with the requirements of this Chapter after being requested to do so by the insurer. (5) The insurer must keep the employer of a worker who has received a significant injury informed of significant steps taken or proposed to be taken under the injury management plan for the worker. This subsection does not apply when the insurer is a self-insurer. (6) An insurer must as far as possible ensure that vocational retraining provided or arranged for an injured worker under an injury management plan is such as may reasonably be thought likely to lead to a real prospect of employment or an appropriate increase in earnings for the injured worker. (7) An insurer must give effect to an injury management plan established for an injured worker and for that purpose must comply with the obligations imposed on the insurer by or under the plan. 45A Injury management consultants (1) The Authority may by instrument in writing approve a person as an injury management consultant for the purposes of the Workers Compensation Acts. (2) Such an approval may be for a fixed or indefinite period and may be made subject to conditions. (3) The Authority may by instrument in writing revoke the approval of an injury management consultant for any breach of the conditions of the approval or for such other reason as the Authority thinks appropriate. (4) Workers Compensation Guidelines may provide for the functions of approved injury management consultants. (5) A person approved as an injury management consultant under this section is, in any legal proceedings, competent but not compellable to give evidence or produce documents in respect of any matter in which he or she was involved in the course of the exercise of his or her functions as an approved injury management consultant. (6) An injury management consultant who is aggrieved by a decision of the Authority to revoke the consultant's approval may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. 46 Employer's injury management plan obligations (1) The employer must participate and co-operate in the establishment of an injury management plan required to be established for an injured worker. (2) The employer must comply with obligations imposed on the employer by or under an injury management plan for an injured worker. (3) This section does not apply when the employer is a self-insurer. 47 Worker's injury management plan obligations (1) An injured worker must participate and co-operate in the establishment of an injury management plan required to be established for the worker. (2) The worker must comply with obligations imposed on the worker by or under an injury management plan for the worker. (3) The worker must, when requested to do so by the insurer, nominate as the worker's treating doctor for the purposes of an injury management plan for the worker a medical practitioner who is prepared to participate in the development of, and in the arrangements under, the plan. (4) A medical practice can be nominated as treating doctor for the purposes of subsection (3). Such a nomination operates as a nomination of the members of the practice who treat the worker from time to time and a reference in this Chapter to the nominated treating doctor is a reference to those members of the practice. (5) The worker must authorise the worker's nominated treating doctor to provide relevant information to the insurer or the employer for the purposes of an injury management plan for the worker. (6) An injury management plan must provide for the procedure for changing the worker's nominated treating doctor. 48 Return to work obligations of worker (1) A worker who has current work capacity must, in co-operation with the employer or insurer, make reasonable efforts to return to work in suitable employment or pre-injury employment at the worker's place of employment or at another place of employment. (2) For the purposes of this section, a worker is to be treated as making a reasonable effort to return to work in suitable employment or pre-injury employment during any reasonable period in which— (a) the worker is waiting for the commencement of a workplace rehabilitation service that is required to be provided under an injury management plan for the worker, or (b) the worker is waiting for a response to a request for suitable employment or pre-injury employment made by the worker and received by the employer, or (c) if the employer's response is that suitable employment or pre-injury employment will be provided at some time, the worker is waiting for suitable employment or pre-injury employment to commence. 48A Failure to comply with return to work obligations of worker (1) If a worker does not comply with an obligation of the worker imposed under section 48, the insurer may in accordance with this section— (a) suspend the payment of compensation in the form of weekly payments to the worker, or (b) terminate the payment of compensation in the form of weekly payments to the worker, or (c) cease and determine the entitlement of the worker to compensation in the form of weekly payments in respect of the injury under this Act. (2) If the insurer seeks to suspend payments of compensation under subsection (1) (a), the insurer must give written notice to the worker stating— (a) the reason for the giving of the notice, and (b) that unless the worker complies with the obligation under section 48 specified in the notice, weekly payments to the worker will be suspended from the date specified in the notice which must be a date at least 14 days after notice is given but no more than 60 days after notice is given, and (c) the consequences of failing to comply as specified in the notice. (3) If the worker fails to comply with a written notice under subsection (2), the insurer may suspend the payment of weekly payments to the worker for a period of 28 days after the date specified in the notice referred to in subsection (2) (b). (4) If the worker complies with the obligation specified in the notice under subsection (2) during the period that weekly payments are suspended under subsection (3), the insurer must, subject to and in accordance with this Act, resume the payment of weekly payments with effect from the date on which the worker complied with the obligation. (5) If subsection (4) applies, the worker forfeits any compensation in the form of weekly payments that would otherwise have been made during the period of suspension until the worker complied with the obligation and that period is