Legislation, In force, Western Australia
Western Australia: Workers Compensation and Injury Management Act 2023 (WA)
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Western Australia
Workers Compensation and Injury Management Act 2023
Western Australia
Workers Compensation and Injury Management Act 2023
Contents
Part 1 — Preliminary
Division 1 — General
1. Short title 1
2. Commencement 1
3. Act binds Crown 1
4. No contracting out 1
Division 2 — Terms used
5. Terms used 1
Division 3 — Injury and injury from employment
6. Injury 1
7. Exclusion of injury: reasonable administrative action 1
8. Injury from employment: work related attendances 1
9. Journeys 1
10. Prescribed diseases taken to be from certain employment 1
11. Diseases of firefighters taken to be from employment 1
Division 4 — Worker and employer
12. Meaning of "worker" and "employer" 1
13. Prescribed workers and excluded workers 1
14. Labour hire arrangements 1
15. Jockeys 1
16. Working directors 1
Part 2 — Compensation for injury
Division 1 — General principles
17. Employer liable for compensation 1
18. Forms of compensation 1
19. Employment must be connected with this State 1
20. Compensation excluded: serious and wilful misconduct 1
21. Compensation excluded: certain employment on ship 1
22. Person not to be paid twice 1
Division 2 — Claiming compensation
Subdivision 1 — Preliminary
23. Terms used 1
24. Application of Division 1
Subdivision 2 — Claim process
25. Making claim for compensation 1
26. Insured employer must give claim to insurer 1
27. Worker may give claim to insurer if employer defaults 1
28. Insurer or self‑insurer to make decision on liability 1
29. Requirements when decision on liability deferred 1
30. Determination by arbitrator of question about liability for compensation 1
31. Claims on uninsured employers 1
32. Worker to provide information about other employment 1
33. Incapacity after claim made 1
34. Claiming compensation when question as to liability or apportionment between employers 1
35. Claiming compensation for certain diseases when more than 1 employer liable 1
Subdivision 3 — Provisional payments
36. Requirement for provisional payments 1
37. Compensation for which provisional payments are required 1
38. Calculating the amount of a provisional payment 1
39. How and when provisional payments are to be made 1
40. Provisional payments of medical and health expenses compensation 1
41. Provisional payments of income compensation 1
42. Insurer required to indemnify for provisional payments 1
43. Status and effect of provisional payments 1
44. Other employer or insurer liable 1
Division 3 — Income compensation
Subdivision 1 — Preliminary
45. Terms used 1
Subdivision 2 — Entitlement to income compensation
46. Entitlement to income compensation for incapacity for work 1
47. Obligation to pay income compensation 1
48. Total or partial incapacity for work 1
49. Worker not to be prejudiced by resuming work 1
50. Order that worker is taken to be totally incapacitated 1
51. General limit on total income compensation 1
52. Additional income compensation 1
Subdivision 3 — Calculation of income compensation
53. Terms used 1
54. Worker's pre‑injury weekly rate of income 1
55. Amount of income compensation 1
56. Maximum weekly rate of income compensation 1
57. Minimum weekly rate of income compensation 1
58. Monetary value of board and lodging 1
59. Working directors 1
60. Public holidays 1
61. Leave while entitled to income compensation 1
Subdivision 4 — Reducing, suspending and discontinuing income compensation
62. Restrictions on reduction, suspension or discontinuation of income compensation 1
63. Reducing or discontinuing income compensation on basis of worker's return to work 1
64. Reducing or discontinuing income compensation on basis of medical evidence 1
65. Worker not residing in State: failure to provide declaration 1
66. Suspension of income compensation while worker in custody 1
67. Effect of suspension of income compensation payments 1
68. Power of arbitrator to review disputed income compensation payments 1
Division 4 — Compensation for medical and health expenses
69. Terms used 1
70. Medical and health expenses compensation under this Division 1
71. Expenses that are medical and health expenses 1
72. Requirement that medical and health expenses be reasonable 1
73. Medical and health expenses order 1
74. Eligibility to provide compensable medical and health services 1
75. General limit on compensation for medical and health expenses 1
76. Notice to worker that 60% of general limit reached 1
77. Standard increase in compensation limit 1
78. Increase for special expenses in the medical and health expenses general limit amount 1
79. Assessment of degree of permanent impairment for special increase 1
80. Effect of participation in catastrophic injuries support scheme 1
Division 5 — Compensation for miscellaneous expenses
81. Term used: miscellaneous expense 1
82. Compensation for reasonable miscellaneous expenses 1
83. Expenses that are miscellaneous expenses 1
84. Requirement that miscellaneous expenses be reasonable 1
85. First aid and emergency transport 1
86. Wheelchair 1
87. Surgical appliance or artificial limb 1
88. Clothing 1
89. Repair or replacement of artificial aids 1
90. Travel 1
91. Assessment of permanent impairment 1
92. Effect of participation in catastrophic injuries support scheme 1
Division 6 — Compensation for workplace rehabilitation expenses
93. Compensation for workplace rehabilitation expenses 1
94. Workplace rehabilitation fees and charges order 1
95. General limit on compensation for workplace rehabilitation expenses 1
96. Effect of participation in catastrophic injuries support scheme 1
Division 7 — Lump sum compensation for permanent impairment from personal injury by accident
97. Entitlement to lump sum permanent impairment compensation 1
98. Amount of permanent impairment compensation based on degree of permanent impairment 1
99. Worker's degree of permanent impairment 1
100. Limit on permanent impairment compensation 1
101. Calculating permanent impairment compensation 1
102. Further permanent impairment from subsequent injury 1
103. Compensable impairment not to exceed 100% 1
104. Special provisions for AIDS 1
105. Agreement as to degree of permanent impairment 1
106. Determination by arbitrator when worker and employer fail to agree degree of permanent impairment 1
Division 8 — Lump sum compensation for noise‑induced hearing loss
107. Terms used 1
108. Lump sum compensation for noise‑induced hearing loss 1
109. Minimum compensable hearing loss 1
110. Calculation of amount of compensation 1
111. Assessment and evidence of noise‑induced hearing loss 1
112. Apportionment of NIHL compensation between employers 1
113. Disputes about hearing loss 1
114. Regulations 1
Division 9 — Compensation for dust disease
Subdivision 1 — Preliminary
115. Terms used 1
116. Dust disease taken to be from certain employment 1
117. Day on which dust disease injury is suffered 1
118. Dust diseases taken to be single injury 1
Subdivision 2 — Compensation for dust disease
119. Entitlement to lump sum compensation for permanent impairment from dust disease 1
120. No entitlement to compensation until Panel determination 1
121. Claiming dust disease compensation 1
122. Compensation claims to be referred to CEO 1
123. Referral of claim to Panel 1
Subdivision 3 — Dust Disease Medical Panels
124. Constitution of Panel 1
125. Panel practice and procedure 1
126. Panel powers 1
127. Determination of Panel 1
128. Effect of determination 1
129. Variation or remaking of determination 1
130. Remuneration and allowances of Panel members 1
Division 10 — Compensation for death of worker
131. Terms used 1
132. Compensation only payable as provided by compensation order 1
133. Lump sum compensation for death resulting from injury 1
134. Allowance for eligible dependent children 1
135. Funeral and medical expenses 1
136. Lump sum compensation for death not resulting from injury 1
137. Claim for compensation under this Division 1
138. Claims procedure: insured employer 1
139. Claims procedure: self‑insurer or uninsured employer 1
140. Determination of claim by arbitrator 1
141. Manner of payment: lump sum compensation 1
142. Manner of payment: child's allowance 1
143. Effect of recovery of damages on applying trust money 1
144. Application procedure 1
145. Inconsistency with other provisions 1
Division 11 — Other matters to do with compensation
146. Recovery of erroneous payments of compensation 1
147. Deductions from wages towards compensation not lawful 1
148. Recovery of cost of services provided to worker 1
Division 12 — Settlement of compensation claim
149. Commuting compensation liabilities by settlement agreement 1
150. Lump sum compensation required to be included in settlement agreement 1
151. Effect on settlement of participation in catastrophic injuries support scheme 1
152. Applying for registration of settlement agreement 1
153. Settlement agreement cannot apply to common law damages 1
154. Scrutiny by Director of settlement agreement 1
155. Cancellation of registration of settlement agreement 1
156. Implementation of settlement agreement 1
157. Limit on lump sum compensation included in settlement agreement 1
Part 3 — Injury management
Division 1 — General
158. Term used: treating medical practitioner 1
159. Employer must establish injury management system 1
Division 2 — Return to work
Subdivision 1 — Duties of employer, insurer and worker
160. Duty of employer to establish and implement return to work program 1
161. Employer may be ordered to establish and implement return to work program 1
162. Duties of insurer 1
163. Duties of worker 1
164. Consequences of refusal or failure to comply with s. 163 duty 1
Subdivision 2 — Return to work case conferences
165. Attendance at return to work case conference 1
Subdivision 3 — Employment obligations relating to return to work
166. Employer must provide position during incapacity 1
167. Host must cooperate with labour hirer 1
168. Dismissal of injured worker 1
Division 3 — Certificates of capacity
169. Issue of certificate of capacity 1
170. Treating medical practitioner 1
171. Employer, insurer and agent of insurer must not be present at examination or treatment 1
Division 4 — Workplace rehabilitation providers
172. Approval of workplace rehabilitation providers 1
173. Determination of application for approval 1
174. Conditions of approval 1
175. Duration of approval 1
176. Suspension or cancellation of approval 1
177. Register of approved workplace rehabilitation providers 1
178. Performance monitoring and review of approved workplace rehabilitation providers 1
Part 4 — Medical assessment
Division 1 — Preliminary
179. Term used: Permanent Impairment Guidelines 1
Division 2 — Medical examination of worker
180. Power to require medical examination of worker 1
181. Worker contravening requirement for medical examination 1
Division 3 — Assessing degree of permanent impairment
182. Assessments to which Division applies 1
183. Method of assessment 1
184. Assessing degree of permanent impairment when multiple injuries arise from single event 1
185. Secondary conditions disregarded in certain cases 1
186. Assessment by approved permanent impairment assessor or Dust Disease Medical Panel 1
187. Permanent Impairment Guidelines 1
188. Requirement for injury to have stabilised 1
189. Asymptomatic pre‑existing disease 1
190. Request for assessment of permanent impairment 1
191. Powers of approved permanent impairment assessors 1
192. Report on results of assessment 1
Division 4 — Permanent impairment assessors
193. Approval of permanent impairment assessors 1
194. Conditions of approval 1
195. Minister may fix scale of fees and charges for permanent impairment assessment 1
196. Duration of approval 1
197. Suspension or cancellation of approval 1
198. Compliance audits and investigations 1
199. Register of approved permanent impairment assessors 1
Part 5 — Insurance
Division 1 — General
200. Terms used 1
201. Agency arrangements 1
Division 2 — Employer obligations
Subdivision 1 — Insurance requirements for employers
202. Requirement for employers to be insured 1
203. Information to be provided by employer to insurer 1
204. Offences 1
205. Evidence of non‑compliance with insurance requirements 1
206. Defence: employment not connected with this State 1
207. Recovery of premiums avoided by employer 1
208. Liability of responsible officers of corporations 1
209. Records to be kept by employer 1
210. Insurer may recover underpaid premiums from employer 1
211. Recovery of costs of audit of employer 1
212. Certificate of currency 1
213. Workers compensation insurance brokers 1
Subdivision 2 — Contractors and subcontractors
214. Terms used 1
215. Both principal and contractor taken to be employers 1
216. Claim or proceedings against principal 1
217. Indemnity 1
218. Effect of judgment against principal or contractor 1
219. Application of Subdivision to subcontractors 1
220. Subdivision does not extend right to damages 1
221. Contractor remuneration information 1
Subdivision 3 — Avoidance arrangements
222. What constitutes an avoidance arrangement 1
223. Offence if work done under avoidance arrangement 1
224. Arbitrator's determination about avoidance arrangement 1
225. Effect of avoidance arrangement on compensation and insurance 1
Division 3 — Licensed insurers
Subdivision 1 — Licensing of insurers
226. Offence: unlicensed insurers 1
227. Application for licence 1
228. Determination of licence application 1
229. Conditions of licence 1
230. Duration of licence 1
231. Suspension, cancellation or surrender of licence 1
232. Performance monitoring and review of insurers 1
233. Improvement notice to licensed insurer 1
234. Specialised insurers 1
235. Special arrangements for Insurance Commission and public authorities 1
Subdivision 2 — Insurance obligations of licensed insurers
236. Obligation of licensed insurers to insure employers 1
237. Terms of insurance and form of policies 1
238. Adjustable premium policies 1
239. Insurer to indemnify employer for compensation payments 1
240. Coverage of insurance policy not limited by employer representations 1
241. Refusal of indemnity 1
242. Cancellation of insurance policy 1
243. Lapsing of insurance policy 1
244. Worker's rights against insurer when employer cannot be proceeded against 1
Division 4 — Self‑insurance
Subdivision 1 — Licensing of self‑insurers
245. Application for self‑insurer licence 1
246. Coverage of related entities by group self‑insurer licence 1
247. Liability of holder of group self‑insurer licence 1
248. Application of licensed insurer provisions to self‑insurers 1
Subdivision 2 — Self‑insurer securities
249. Terms used 1
250. Requirement for security 1
251. Review and variation of required security amount 1
252. Calling on security 1
Division 5 — Insurance premiums
253. Fixing of recommended premium rates 1
254. Reports as to recommended premium rates 1
255. Review of premium charged 1
Division 6 — Default Insurance Fund
Subdivision 1 — Establishment of Default Insurance Fund
256. Establishment of Default Insurance Fund 1
257. Payments to and from DI Fund 1
258. Payments to and from General Account 1
259. Advances to DI Fund 1
Subdivision 2 — Contributions to DI Fund
260. Terms used 1
261. Required contributions by insurers and self‑insurers to DI Fund 1
262. Arrangements for payment of contributions 1
263. Additional insurer contribution for unexpected claims 1
264. Provision of information by licensed insurers and self‑insurers 1
Division 7 — Uninsured employers
265. Uninsured employer 1
266. Payment of compensation when employer uninsured 1
267. Payment of damages when employer uninsured 1
268. Payment of compensation for dust disease or prescribed disease when insurer unknown or has ceased operation 1
269. Recovery of compensation or damages paid for uninsured employer 1
270. Setting aside certain judgments and agreements 1
271. Recovery of uninsured employer payment from officer of body corporate 1
272. Exercise by WorkCover WA of rights of uninsured employer 1
273. WorkCover WA's rights of indemnity and subrogation 1
274. Employer's duty to assist WorkCover WA 1
275. Liability of employer if employment believed to be not connected with this State 1
276. Payment to employer not required 1
Division 8 — Insurer and self‑insurer insolvency
277. Terms used 1
278. Claims against WorkCover WA for insolvent insurer and self‑insurer liabilities 1
279. Payment of claims 1
280. Recovery by WorkCover WA of payment made in satisfaction of claims 1
281. Control of powers of liquidator of insurer or self‑insurer 1
282. Payment into DI Fund of money recovered by liquidator 1
283. Liquidator to notify WorkCover WA of dissolution of insurer or self‑insurer 1
284. WorkCover WA may accept final payment from liquidator 1
Division 9 — Acts of terrorism
285. Terms used 1
286. Division does not apply to public authority covered by Insurance Commission 1
287. Term used: act of terrorism 1
288. Declaration of act of terrorism 1
289. Exclusion of declared act of terrorism from insurance 1
290. Claims for compensation in respect of declared act of terrorism 1
291. Limits on claims for declared acts of terrorism 1
292. WorkCover WA's rights of indemnity and subrogation 1
Division 10 — Special provisions for waterfront worker dust diseases if employer unknown
293. Terms used 1
294. Claim for compensation if last relevant employer unknown 1
295. Payment of claim 1
296. Recovery of money paid in satisfaction of claim 1
Division 11 — Contributions to Motor Vehicle and Workplace Accidents (Catastrophic Injuries) Fund
297. Terms used 1
298. Insurance Commission to determine required contributions to CIF 1
299. Calculation of required insurer contributions to CIF 1
300. Requirement for payment of CIF contributions by insurers and self‑insurers 1
301. Transfer from DI Fund to CIF 1
302. Additional insurer contribution for unexpected liabilities 1
Part 6 — Dispute resolution
Division 1 — General
303. Terms used 1
304. Exclusive jurisdiction of arbitrators 1
305. Object of this Part 1
306. Relevant documents 1
Division 2 — Conciliation Service and Arbitration Service
307. Establishment of Conciliation Service and Arbitration Service 1
308. Designation and functions of Director and Registrar 1
309. Designation of conciliators and arbitrators 1
310. Delegation by Director or Registrar 1
Division 3 — Conciliation
Subdivision 1 — Process for conciliation
311. Application for conciliation 1
312. Requirements for acceptance of application for conciliation 1
313. Director may certify dispute not suitable for conciliation 1
314. Allocation of dispute 1
315. Duties of conciliators 1
316. Scope of conciliation 1
317. Powers of conciliators 1
318. Finalising orders 1
319. Conclusion of conciliation and certificate of outcome 1
Subdivision 2 — Directions for payment of compensation
320. Interim compensation directions 1
321. Amendment, suspension or revocation of interim compensation directions 1
322. Payment by insurer if employer fails to comply with interim compensation direction 1
323. Suspending and reducing income compensation payments 1
Subdivision 3 — General provisions about conciliation directions, orders and agreements
324. Terms used 1
325. General provisions about conciliation decisions 1
326 When conciliation decision or agreement has effect 1
327. Correcting mistakes 1
328. Enforcing conciliation decisions and agreements 1
329. Conciliation decisions not reviewable 1
330. Recovery of compensation paid under conciliator direction 1
Division 4 — Arbitration
Subdivision 1 — Determination of disputes by arbitration
331. Application for arbitration 1
332. Requirements for acceptance of application for arbitration 1
333. Registrar to allocate dispute 1
334. Information exchange by parties 1
335. Duties of arbitrators 1
Subdivision 2 — Arbitration practice and procedure
336. General practice and procedure 1
337. Relief or redress granted need not be restricted to claim 1
338. Directions by arbitrator 1
339. Dismissal of proceeding 1
340. Illegal contracts of employment may be treated as valid 1
341. Arbitrator's powers to obtain information 1
342. Use of experts by arbitrators 1
343. Summoning witnesses 1
344. Arbitrator's powers as to witnesses 1
345. Communication between worker and WorkCover WA employee not admissible 1
346. Oaths and affirmations 1
347. Arbitrator may authorise another person to take evidence 1
Subdivision 3 — Arbitrator decisions
348. Decisions generally 1
349. Conditional and ancillary orders and directions 1
350. Form and content of decision and reasons 1
351. Validity of decision not affected by contravention of this Subdivision 1
352. When decision has effect 1
353. Correcting mistakes 1
354. Reconsideration of decision on basis of new information 1
355. Arbitration decision not reviewable 1
356. Enforcing decision 1
357. Publication of decision and reasons 1
Subdivision 4 — Interest
358. Interest on sums to be paid 1
359. Interest on unpaid sums 1
360. Interest on unpaid amount of agreed sum 1
361. Regulations may exclude interest 1
Division 5 — General provisions about conciliation and arbitration procedures
362. Term used: relevant rules 1
363. Functions conferred by this Division 1
364. Provision of information to another party or medical practitioner 1
365. Representation 1
366. Meaning of prohibited person: s. 365(4) 1
367. Litigation guardians 1
368. Interpreters and assistants 1
369. Ways of conducting proceedings 1
370. Proceedings to be in private 1
371. Notice of proceedings and failure to attend 1
372. Abrogation of privilege against self‑incrimination 1
373. Legal professional privilege in relation to medical reports 1
374. Other claims of privilege 1
375. Powers in relation to documents produced 1
376. To whom compensation must be paid 1
377. Payment of compensation to worker under legal disability 1
378. Admissibility of statements made to conciliator 1
379. Statements to arbitrators not admissible in common law proceedings 1
Division 6 — Regulations, rules and practice notes
380. Regulations 1
381. Conciliation rules 1
382. Arbitration rules 1
383. General provisions about rules 1
384. Practice notes 1
Division 7 — Offences
385. Failure to comply with decision of dispute resolution authority 1
386. Failure to comply with summons or requirement to attend 1
387. Failure to give evidence as required 1
388. Giving false or misleading information 1
389. Misbehaviour and other conduct 1
390. Referral of offence to CEO 1
Division 8 — Appeals to District Court
391. Appeal against arbitrator's decision 1
392. Effect of appeal on decision under appeal 1
393. Appeal from District Court to Court of Appeal 1
Division 9 — Costs
Subdivision 1 — General
394. Terms used 1
395. Costs to which Division applies 1
396. Division prevails over Legal Profession Uniform Law (WA) 1
Subdivision 2 — Determination, assessment and limitations as to costs
397. Costs to be determined by dispute resolution authority 1
398. Costs unreasonably incurred by representative 1
399. Agent's costs 1
400. Appeal costs 1
401. Regulations for assessment of costs 1
Subdivision 3 — Maximum costs
402. Costs Committee established 1
403. Remuneration and allowances of Costs Committee members 1
404. Constitution and procedure of Costs Committee 1
405. Determinations as to maximum costs 1
406. Making a costs determination 1
407. Approval and publication of costs determinations 1
408. Effect of approved costs determination 1
409. Limit on agreement as to costs 1
410. Costs in relation to actions for damages 1
Part 7 — Common law
Division 1 — General
411. Terms used 1
412. References to employer include person for whom employer vicariously liable 1
413. Liability independent of this Act not affected 1
414. Requirements for motor vehicle claims not affected 1
Division 2 — Constraints on common law proceedings and damages: actions against employer
415. Application of Division 1
416. Damages to which this Division does not apply 1
417. Application of Division depends on when cause of action accrues 1
418. Limit on powers of courts to award damages against employer 1
419. No damages for noise‑induced hearing loss 1
420. No damages if compensation settlement agreement registered 1
421. Threshold requirements for commencement of proceedings and award of damages 1
422. Commencement of court proceedings against employer of worker with terminal disease 1
423. Effect of election to retain right to seek damages on entitlement to compensation 1
424. Maximum damages award for less than 25% impairment 1
425. Special provisions for HIV and AIDS 1
426. Special provisions for dust disease damages claims 1
427. Effect of this Division on contribution required from employer 1
428. Limits on agreements as to solicitor‑client costs 1
429. Regulations 1
Division 3 — Prevention of double recovery
430. Application of Division 1
431. Worker to be given opportunity to discontinue action for damages 1
432. Deduction or repayment of compensation if action for damages proceeds to judgment 1
433. Compensation proceedings not permitted if action for damages succeeds 1
Division 4 — Remedies against third parties
434. Worker entitled to proceed against third party for damages 1
435. Employer's right to be indemnified by third party 1
436. Recovery of third party indemnity payment from worker 1
437. Employer's right to recover unpaid damages from third party 1
Division 5 — Choice of law
438. Terms used 1
439. Extended meaning: injury, employer and worker 1
440. Applicable substantive law for work injury claims 1
441. Claims to which Division applies 1
442. Claim in respect of death included 1
443. Availability of action in another State not relevant 1
Part 8 — Administration
Division 1 — General
444. Terms used 1
Division 2 — WorkCover WA
445. WorkCover WA established 1
446. Status 1
447. Objective 1
448. Functions 1
449. Powers generally 1
450. Delegation 1
451. Execution of documents 1
Division 3 — Administration of WorkCover WA
Subdivision 1 — The Board
452. Board is governing body 1
453. Board membership 1
454. Term of office of appointed members 1
455. Casual vacancies, resignation and removal from office 1
456. Extension of term of office during vacancy 1
457. Leave of absence 1
458. Alternate appointed members 1
459. Remuneration and allowances of appointed members 1
Subdivision 2 — Meetings
460. Meetings 1
461. Quorum 1
462. Presiding member 1
463. Procedure at meetings 1
464. Voting 1
465. Holding meetings remotely 1
466. Decision without meeting 1
467. Minutes 1
Subdivision 3 — Committees
468. Committees 1
469. Directions to committee 1
470. Committee procedures 1
471. Remuneration and allowances of committee members 1
Subdivision 4 — Disclosure of interests
472. Disclosure of material personal interest 1
473. Interested member cannot participate 1
474. Board may resolve s. 473 is inapplicable 1
475. Quorum if s. 473 applies 1
476. Minister may declare s. 473 and 475 inapplicable 1
Division 4 — Staff of WorkCover WA
477. Chief executive officer 1
478. Delegation by CEO 1
479. Other staff 1
480. Use of other government staff 1
Division 5 — Ministerial directions
481. Minister may give directions 1
482. Protection for disclosure or compliance with directions 1
Part 9 — Financial provisions
Division 1 — General provisions
483. Application of Financial Management Act 2006 and Auditor General Act 2006 1
484. Borrowing powers 1
485. Guarantee by Treasurer 1
486. Effect of guarantee 1
Division 2 — General Account
487. Terms used 1
488. WorkCover WA General Account established 1
489. Estimate of funds needed for General Account 1
490. Calculation of estimate 1
491. Required contributions by insurers and self‑insurers to General Account 1
492. Arrangements for payment of contributions 1
493. Provision of information by licensed insurers and self‑insurers 1
Division 3 — Trust account
494. WorkCover WA Trust Account established 1
495. Investment of money standing to credit of Trust Account 1
Part 10 — Management and disclosure of information
Division 1 — Approved forms and electronic processes
496. Approved forms 1
497. Service, documents and information, including facilitation of electronic processes 1
Division 2 — Disclosure of information
498. Minister to have access to information 1
499. Information held by Conciliation Service or Arbitration Service 1
500. Licensed insurers and self‑insurers must provide information to WorkCover WA 1
501. Direction to provide WorkCover WA with information 1
502. Disclosure of information to work health and safety officers 1
503. WorkCover WA may disclose information 1
504. Confidentiality 1
505. Authorised use or disclosure of information 1
506. Disclosure of claim information for pre‑employment screening 1
Part 11 — Regulation and enforcement
Division 1 — General
507. Term used: compliance purposes 1
Division 2 — Inspectors
508. Inspectors 1
509. Identification of inspectors 1
Division 3 — Inspections and investigations
510. Compliance inspections 1
511. Entry powers 1
512. General powers on entry 1
513. Persons assisting inspectors 1
Division 4 — Powers relating to documents and information
514. Power to require auditor's certificate 1
515. Power to require documents and answers to questions 1
516. Abrogation of privilege against self‑incrimination 1
517. Power to copy and retain documents 1
Division 5 — Contravention of Act
518. Who can prosecute offences 1
519. Time limit for prosecutions 1
520. Application of fines 1
521. Offences under Acts about work health and safety not affected 1
522. Infringement notices and the Criminal Procedure Act 2004 1
Division 6 — Offences
523. Hindering or obstructing inspector 1
524. Using name WorkCover WA 1
525. False or misleading information 1
526. Fraud 1
527. Preventing another person from complying with Act 1
Part 12 — State with which employment connected
528. Terms used 1
529. Connection of employment with a State 1
530. Determining if employment is connected with this State 1
531. Applying to District Court to determine connection 1
532. Recognition of previous determination by court 1
Part 13 — Miscellaneous
533. Judicial notice 1
534. Protection from liability for performance of functions 1
535. Protection and immunity of conciliators, arbitrators and persons involved in proceedings 1
536. Protection for compliance with this Act 1
537. Protection from liability for publishing decision 1
538. General maximum and other adjustable amounts 1
539. Regulations 1
540. Regulations may adopt codes or legislation 1
541. Review of Act 1
Part 14 — Savings and transitional provisions
Division 1 — General
542. Terms used 1
543. Expressions used in former Act 1
544. Transitional regulations 1
545. Interpretation Act 1984 not affected 1
546. Act operates as continuation of former Act 1
547. References to former Act 1
548. Directions about corresponding provisions and pending matters 1
549. Effect of Act on validity of past acts 1
550. Application of Act to existing injuries and other matters 1
551. Pending claims under former Act 1
552. Pending matters exclusion of injury: reasonable administrative action 1
553. Firefighters 1
554. Jockeys 1
Division 2 — Compensation
555. Continuation of entitlement to compensation 1
556. Calculation of income compensation commenced as weekly payments under former Act 1
557. Caps on compensation 1
558. Compensation paid or payable under former Act 1
559. Provisional payments of compensation 1
560. Vocational rehabilitation compensation 1
561. Lump sum compensation for permanent impairment 1
562. Noise‑induced hearing loss 1
563. Compensation for death of worker before 1 July 2018 1
564. When entitlement to income compensation ceases due to age 1
565. Compensation for AIDS 1
566. Updating of general maximum amount 1
Division 3 — Injury management
567. Return to work programs established under s. 155C of former Act 1
568. Employer's obligation to make position or suitable duties available 1
569. Approved workplace rehabilitation providers 1
570. Vocational rehabilitation 1
Division 4 — Dispute resolution
571. Terms used 1
572. Disputes to which Act applies 1
573. Continuity of conciliation and arbitration services 1
574. Conciliation rules, arbitration rules and practice notes 1
575. Pending dispute proceedings 1
576. Transitional directions 1
577. Dispute decisions under former Act 1
578. Registration of independent agents 1
579. Costs determination 1
Division 5 — Medical assessment
580. Approved permanent impairment assessors 1
581. Medical assessments under former Act 1
Division 6 — Insurer and self‑insurer insolvency and uninsured liabilities
582. Claims for uninsured liabilities 1
583. Amounts payable from DI Fund for uninsured liabilities 1
584. Insurer and self‑insurer insolvency 1
585. EIS Fund 1
586. Claims under EISF Act 1
Division 7 — Settlement agreements
587. Settlement agreements under former Act 1
Division 8 — Common law damages proceedings
588. Terms used 1
589. Application of new common law provisions to existing claims 1
590. Transitional arrangements for application of new common law provisions to existing claims 1
591. Continuation of 1993 Scheme 1
592. Dust disease actions accruing before 14 November 2005 1
Division 9 — Insurance
593. Insurance policies under former Act 1
594. Failure to insure under former Act 1
595. Underpaid premiums 1
596. Operation of policies issued by Insurance Commission 1
597. Licensed insurers 1
598. Self‑insurers 1
599. Recommended premium rates 1
600. Appeals by employers 1
601. Permission for insurer to exceed 75% premium loading 1
602. Acts of terrorism 1
Division 10 — Administration
603. Term used: WorkCover Western Australia Authority 1
604. Continuation of WorkCover Western Australia Authority 1
605. Board is continuation of governing body 1
606. Exercise of powers of Board before commencement day 1
607. Continuation of accounts 1
608. Chief executive officer 1
609. Exercise of powers of CEO before commencement day 1
610. Other staff 1
611. Inspectors 1
612. Delegations 1
613. Guarantees of borrowings 1
614. General Account 1
Part 15 — Repeals and consequential and related amendments
Division 1 — Acts repealed
615. Workers' Compensation and Injury Management Act 1981 repealed 1
616. Workers' Compensation and Injury Management (Acts of Terrorism) Act 2001 repealed 1
617. Employers Indemnity Policies (Premium Rates) Act 1990 repealed 1
618. Employers' Indemnity Supplementation Fund Act 1980 repealed 1
619. Waterfront Workers (Compensation for Asbestos Related Diseases) Act 1986 repealed 1
Division 2 — Subsidiary legislation repealed
620. Workers' Compensation and Injury Management Regulations 1982 repealed 1
621. Workers' Compensation and Injury Management (Scales of Fees) Regulations 1998 repealed 1
622. Workers' Compensation Code of Practice (Injury Management) 2005 repealed 1
623. Workers' Compensation and Injury Management (Acts of Terrorism) (Final Day) Regulations 2002 repealed 1
Division 3 — Acts amended
Subdivision 1 — Civil Liability Act 2002 amended
624. Act amended 1
625. Section 3A amended 1
626. Section 13A replaced 1
13A. Restrictions on damages if payments received under CISS 1
Subdivision 2 — Financial Management Act 2006 amended
627. Act amended 1
628. Schedule 1 amended 1
Subdivision 3 — Fire and Emergency Services Act 1998 amended
629. Act amended 1
630. Section 36ZM amended 1
631. Section 36ZN replaced 1
36ZN. When firefighter disease taken to be injury caused while engaged in volunteer activities 1
632. Section 36ZR amended 1
633. Section 36ZS amended 1
634. Section 36ZT amended 1
635. Section 36ZU amended 1
636. Section 36ZW amended 1
637. Section 36ZX replaced 1
36ZX. Firefighter disease disputes 1
638. Other references to WC&IM Act replaced 1
Subdivision 4 — Health Services Act 2016 amended
639. Act amended 1
640. Section 228 amended 1
Subdivision 5 — Insurance Commission of Western Australia Act 1986 amended
641. Act amended 1
642. Section 6 amended 1
643. Section 7 amended 1
644. Section 15 amended 1
645. Section 16 amended 1
646. Section 18 amended 1
647. Section 44 deleted 1
648. Section 49 inserted 1
49. Transitional 1
Subdivision 6 — Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 amended
649. Act amended 1
650. Section 6 amended 1
Subdivision 7 — Law Reporting Act 1981 amended
651. Act amended 1
652. Section 2 amended 1
Subdivision 8 — Legal Profession Uniform Law Application Act 2022 amended
653. Act amended 1
654. Section 134 amended 1
Subdivision 9 — Limitation Act 2005 amended
655. Act amended 1
656. Section 55 amended 1
657. Section 56 amended 1
658. Section 57 amended 1
Subdivision 10 — Local Government Act 1995 amended
659. Act amended 1
660. Section 5.49 replaced 1
5.49. Workers compensation insurance 1
Subdivision 11 — Motor Vehicle (Catastrophic Injuries) Act 2016 amended
661. Act amended 1
662. Long title amended 1
663. Section 1 amended 1
664. Section 3 amended 1
665. Section 5A inserted 1
5A. Workplace injury to which Act applies 1
666. Section 8 amended 1
667. Section 9 amended 1
668. Section 13 amended 1
669. Section 14 amended 1
670. Section 15 amended 1
671. Section 18 amended 1
672. Section 19 amended 1
673. Section 22 deleted 1
674. Section 24 amended 1
675. Section 27 amended 1
676. Section 30A inserted 1
30A. Notification and disclosure of information about injured worker 1
677. Section 31 replaced 1
31. False or misleading information 1
Subdivision 12 — Motor Vehicle (Third Party Insurance) Act 1943 amended
678. Act amended 1
679. Section 3 amended 1
680. Section 3C amended 1
681. Section 3EA amended 1
682. Section 3FB amended 1
683. Section 3G amended 1
684. Section 3T amended 1
685. Section 6A amended 1
Subdivision 13 — Police Act 1892 amended
686. Act amended 1
687. Section 33ZS amended 1
688. Section 33ZW amended 1
689. Section 33ZX amended 1
690. Section 33ZY amended 1
691. Section 33ZZI amended 1
Subdivision 14 — Police (Medical and Other Expenses for Former Officers) Act 2008 amended
692. Act amended 1
693. Section 3 amended 1
694. Section 5 amended 1
695. Section 7 amended 1
696. Section 8 replaced 1
8. Time limits under WCIM Act do not apply 1
697. Section 9 amended 1
698. Section 14 amended 1
Subdivision 15 — Public Sector Management Act 1994 amended
699. Act amended 1
700. Schedule 2 amended 1
Subdivision 16 — Sentencing Act 1995 amended
701. Act amended 1
702. Schedule 1 amended 1
Subdivision 17 — State Superannuation (Transitional and Consequential Provisions) Act 2000 amended
703. Act amended 1
704. Section 74 deleted 1
Subdivision 19 — Workers' Compensation and Injury Management Amendment Act 2011 amended
707. Act amended 1
708. Section 123 amended 1
Subdivision 20 — Other Acts amended
709. References to Workers' Compensation and Injury Management Act 1981 amended 1
Part 16 — Validation
710. Terms used 1
711. Validated elections 1
712. Election considered in Neville v Choice One Pty Ltd 1
713. Court proceedings struck out, stayed or dismissed before validation day 1
714. Court proceedings discontinued before validation day 1
715. Second election made under Part 7 of this Act 1
716. No right of recovery for compensation paid 1
Notes
Compilation table 1
Other notes 1
Defined terms
Western Australia
Workers Compensation and Injury Management Act 2023
An Act —
● to provide for employers to be liable to compensate workers who suffer injuries from employment; and
● to establish a scheme for compulsory insurance against that liability; and
● to provide for the management of those injuries; and
● to provide for the resolution of disputes; and
● to make administrative and other related provisions; and
● to make consequential and related amendments to, and repeals of, various written laws.
Part 1 — Preliminary
Division 1 — General
1. Short title
This is the Workers Compensation and Injury Management Act 2023.
2. Commencement
This Act comes into operation as follows —
(a) Part 1 (but only Division 1) — on the day on which this Act receives the Royal Assent (assent day);
(b) Part 14 (but only Divisions 1, 4 and 10 and only sections 542, 543, 545, 574, 579, 603, 606 and 609) — on the day after assent day;
(c) Part 15 Division 3 Subdivision 18 —
(i) if the Criminal Law (Mental Impairment) Act 2023 section 188 comes into operation on or before assent day — when section 66 of this Act comes into operation; or
(ii) otherwise — when the Criminal Law (Mental Impairment) Act 2023 section 188 comes into operation;
(d) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.
3. Act binds Crown
This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
4. No contracting out
(1) The application of this Act or any of its provisions cannot be excluded, restricted or modified by contract, agreement or other arrangement, except as provided by this Act.
(2) A person who enters into a contract, agreement or other arrangement that purports to exclude, restrict or modify the application of this Act or any of its provisions, except as provided by this Act, commits an offence.
Penalty for this subsection: a fine of $15 000.
Division 2 — Terms used
5. Terms used
In this Act —
AIDS means acquired immune deficiency syndrome;
approved form means a form approved by the CEO under section 496 for the purposes of the provision in which the term is used;
approved permanent impairment assessor has the meaning given in section 193(1);
approved workplace rehabilitation provider means a workplace rehabilitation provider granted approval under section 173(1);
arbitration rules has the meaning given in section 382(1);
Arbitration Service means the Workers Compensation Arbitration Service established under section 307(1)(b);
arbitrator means a person designated as an arbitrator under section 309(1);
Board means WorkCover WA's board provided for in section 452;
CEO means the person holding or acting in the office of chief executive officer of WorkCover WA;
certificate of capacity, in relation to a worker's injury, means a certificate issued in accordance with section 169;
company means a company or a registered body, within the meaning of the Corporations Act 2001 (Commonwealth), other than a registered body specified, or of a kind specified, in the regulations;
compensation means compensation under this Act;
conciliation rules has the meaning given in section 381(1);
Conciliation Service means the Workers Compensation Conciliation Service established under section 307(1)(a);
conciliator means a person designated as a conciliator under section 309(1);
degree of permanent impairment means —
(a) degree of permanent impairment of a part or faculty of the body; or
(b) degree of permanent whole of person impairment;
DI Fund means the WorkCover WA Default Insurance Fund established under section 256(1);
Director means the WorkCover WA officer designated under section 308(1) as the Director;
disease includes any ailment, disorder, defect or morbid condition whether physical or mental and whether of sudden or gradual development;
dispute resolution authority means the Director, the Registrar, a conciliator or an arbitrator;
document includes anything that falls within 1 or more of the following —
(a) a record of information, irrespective of how the information is recorded or stored or able to be recovered;
(b) a thing on which there is writing;
(c) a map, plan, graph, drawing or photograph;
(d) a thing on which there are marks, figures, symbols or perforations that have a meaning for persons qualified to interpret them;
(e) a thing from which images, sounds or writings can be reproduced with or without the aid of anything else;
(f) a thing on which information is recorded or stored, whether electronically, magnetically, mechanically or by some other means;
dust disease has the meaning given in section 115;
dust disease impairment compensation means lump sum compensation under section 119 for impairment resulting from a dust disease;
employer has the meaning given in section 12 (and see also sections 13 to 16);
General Account means the WorkCover WA General Account established under section 488(1);
general maximum amount has the meaning given in section 538(1);
group self‑insurer licence has the meaning given in section 200;
health professional means —
(a) a person registered under the Health Practitioner Regulation National Law (Western Australia) to practise a health profession (other than as a student); or
(b) a person who is not resident in a State but who is recognised as a health professional for the purposes of this Act by WorkCover WA;
HIV means human immunodeficiency virus;
incapacity claim has the meaning given in section 23;
income compensation means compensation under Part 2 Division 3;
injured worker means a worker who has suffered an injury in respect of which compensation is payable;
injury has the meaning given in section 6;
injury by disease means an injury that is a disease, or the recurrence, aggravation or acceleration of a pre‑existing disease, as provided by section 6;
inspector means a staff member designated as an inspector under section 508(1);
Insurance Commission means the Insurance Commission of Western Australia referred to in the Insurance Commission of Western Australia Act 1986;
insured employer means an employer who is insured under a workers compensation policy;
insurer means an employer's insurer under a workers compensation policy;
licensed insurer has the meaning given in section 200;
medical and health expense has the meaning given in section 71;
medical and health expenses compensation means compensation under Part 2 Division 4;
medical and health expenses general limit amount has the meaning given in section 69;
medical practitioner means —
(a) a person registered under the Health Practitioner Regulation National Law (Western Australia) in the medical profession; or
(b) a person who is not resident in a State but who is recognised as a medical practitioner for the purposes of this Act by WorkCover WA;
mesothelioma means a malignant disease of the inside lining of any 1 or more of the following —
(a) the chest wall (pleura);
(b) the pericardium;
(c) the abdomen (peritoneum);
miscellaneous expense has the meaning given in section 81;
miscellaneous expenses compensation means compensation under Part 2 Division 5;
noise‑induced hearing loss has the meaning given in section 107;
permanent impairment compensation means lump sum compensation under Part 2 Division 7;
provisional payments means provisional payments made to a worker in accordance with section 36;
Registrar means the WorkCover WA officer designated under section 308(1) as the Registrar;
return to work, in relation to a worker who has an incapacity for work, means —
(a) the worker holding or returning to the position that the worker held immediately before becoming incapacitated if it is reasonably practicable for the employer who employed the worker at the time the incapacity occurred to provide that position to the worker; or
(b) if the position is not available, or if the worker does not have the capacity to work in that position, the worker taking a position, whether with the employer who employed the worker at the time the incapacity occurred or another employer —
(i) for which the worker is qualified; and
(ii) that the worker is capable of performing;
return to work program means a return to work program established under section 160(2);
self‑insurer has the meaning given in section 200;
self‑insurer licence has the meaning given in section 200;
settlement agreement means a settlement agreement referred to in Part 2 Division 12;
ship —
(a) means any kind of vessel used in navigation by water, however propelled or moved; and
(b) includes any of the following vessels used wholly or primarily in navigation by water —
(i) a barge, lighter or other floating vessel;
(ii) an air‑cushion vehicle or other similar craft;
staff member means any of the following —
(a) a WorkCover WA officer;
(b) a person engaged or appointed under the Public Sector Management Act 1994 section 100 for the purposes of this Act;
(c) a person referred to in section 480(1);
State includes a Territory;
Trust Account means the WorkCover WA Trust Account established under section 494(1);
uninsured employer has the meaning given in section 265;
WorkCover WA means the body established under section 445(1);
WorkCover WA officer means the CEO or a public service officer appointed under section 479(1);
WorkCover WA website means a website maintained or controlled by or on behalf of WorkCover WA;
worker has the meaning given in section 12(2) (and see also sections 13 to 16);
workers compensation policy has the meaning given in section 202(1);
working director has the meaning given in section 16(1);
workplace rehabilitation expense means an expense that is for the provision of a workplace rehabilitation service;
workplace rehabilitation expenses compensation means compensation under Part 2 Division 6;
workplace rehabilitation service means a service provided in accordance with the regulations by an approved workplace rehabilitation provider for the purpose of assisting an injured worker to return to work.
Division 3 — Injury and injury from employment
6. Injury
(1) In this Act —
injury means an injury from employment that is —
(a) a personal injury by accident; or
(b) a disease, or the recurrence, aggravation or acceleration of a pre‑existing disease.
(2) A personal injury by accident is an injury from employment if the injury arises out of or in the course of the employment or while the worker is acting under the employer's instructions.
(3) Unless otherwise provided in this Act, a disease, or the recurrence, aggravation or acceleration of a pre‑existing disease, is an injury from employment if —
(a) the disease is contracted, or the recurrence, aggravation or acceleration is suffered, in the course of the employment, whether at or away from the place of employment; and
(b) the employment contributed to a significant degree to the contraction of the disease, or the recurrence, aggravation or acceleration of the pre‑existing disease.
Note for this subsection:
Section 116 determines whether a dust disease is an injury from employment.
(4) In determining whether particular employment contributed to a significant degree to the contraction of a disease, or to the recurrence, aggravation or acceleration of a pre‑existing disease, account must be taken of the following —
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) the likelihood of the disease, or the recurrence, aggravation or acceleration of a pre‑existing disease, occurring despite the employment;
(d) the existence of any hereditary factors relating to the occurrence of the disease;
(e) matters affecting the worker's health generally;
(f) activities of the worker not related to the employment.
7. Exclusion of injury: reasonable administrative action
(1) In this section —
administrative action includes any of the following actions —
(a) an appraisal of the worker's performance;
(b) suspension action;
(c) disciplinary action;
(d) anything done in connection with an action described in paragraph (a), (b) or (c);
(e) anything done in connection with the worker's demotion, dismissal or retrenchment, or the worker's failure to obtain a promotion, reclassification, transfer or other benefit, or to retain any benefit, in connection with the worker's employment.
(2) A psychological or psychiatric disorder, including any physiological effect of the disorder on the nervous system, that a worker experiences is not an injury from employment if it results wholly or predominantly from —
(a) administrative action, not being administrative action that is unreasonable and harsh on the part of the employer; or
(b) the worker's expectation of administrative action or of a decision by the employer in relation to administrative action.
8. Injury from employment: work related attendances
A personal injury by accident suffered by a worker is taken to be an injury from employment if the injury occurs —
(a) while the worker attends at a place for educational purposes —
(i) as required by the terms of that employment; or
(ii) with the employer's consent and for the purpose of, or in connection with, that employment;
or
(b) while the worker attends at a place for any treatment of an injury or other purpose the cost of which is payable as compensation in respect of the injury; or
(c) while the worker attends at a place to participate in a return to work program or to undertake workplace rehabilitation.
9. Journeys
(1) In this section —
work journey means a journey arising out of or in the course of a worker's employment.
(2) A personal injury by accident suffered by a worker must not be regarded as arising out of or in the course of the worker's employment if the injury is suffered —
(a) during a journey to or from a place at which the worker resides, whether or not temporarily; or
(b) while a work journey is substantially interrupted for a purpose unconnected with the worker's employment, or after an interruption of that kind; or
(c) during a substantial deviation from a work journey for a purpose unconnected with the worker's employment, or after a deviation of that kind.
10. Prescribed diseases taken to be from certain employment
(1) The regulations may —
(a) specify diseases for the purposes of this section (each a prescribed disease); and
(b) for each prescribed disease specify 1 or more kinds of employment as prescribed employment for that disease.
(2) If a worker suffers an injury by a prescribed disease and the employment in which the worker works at the time of suffering the injury, or in which the worker worked at any time before suffering the injury, is prescribed employment for the disease, the injury is taken to be injury from that employment unless the employer proves that the injury was not from that employment.
Note for this subsection:
Section 6 determines whether an injury by a disease is from employment. An employer can prove that the injury was not from employment by proving that —
(a) it was not suffered in the course of the employment; or
(b) the employment did not contribute to a significant degree to the injury.
(3) The regulations may —
(a) impose conditions or limitations on the operation of this section; and
(b) specify the day on which an injury that under this section is taken to be from prescribed employment is taken to have been suffered.
(4) Unless the regulations otherwise provide, this section extends to —
(a) an injury suffered before, and employment before, the coming into operation of the regulation by which the disease concerned is specified as a prescribed disease; and
(b) an injury suffered before, and employment before, this section comes into operation.
(5) This section does not prevent it from being established independently of this section that an injury by a prescribed disease is from employment whether or not the employment is prescribed employment for the disease.
11. Diseases of firefighters taken to be from employment
(1) In this section —
firefighter disease means a disease that is —
(a) listed in column 1 of the Table; or
(b) a cancer prescribed by the regulations to be a firefighter disease;
firefighting employment means employment by or under the Crown in right of the State a substantial part of the duties of which consists of firefighting duties, being employment that is —
(a) covered by an industrial instrument, as defined in section 57(1), that applies to firefighting or by an agreement that wholly or partly regulates the terms or conditions of employment as a firefighter; or
(b) prescribed by the regulations to be firefighting employment;
hazardous fire means —
(a) a fire in a building; or
(b) a fire in a vehicle, whether designed to move under its own power or to be towed and whether or not still movable; or
(c) a fire involving non‑organic refuse or rubbish created by humans; or
(d) a fire that is prescribed by the regulations to be a hazardous fire;
hazardous firefighting employment, in relation to a worker, means firefighting employment during which the worker —
(a) is engaged as a member or officer of a permanent fire brigade, as defined in the Fire Brigades Act 1942 section 4(1); or
(b) attends hazardous fires at a rate at least equivalent to the rate of 5 hazardous fires per year;
qualifying period means —
(a) for a disease listed in column 1 of the Table — the qualifying period specified for that disease in column 2 of the Table; and
(b) for a cancer prescribed by the regulations to be a firefighter disease — the qualifying period prescribed by the regulations for that cancer.
Table
Item Column 1 Column 2
Disease Qualifying period
1. Primary site brain cancer 5 years
2. Primary site bladder cancer 15 years
3. Primary site kidney cancer 15 years
4. Primary non‑Hodgkin's lymphoma 15 years
5. Primary leukaemia 5 years
6. Primary site breast cancer 10 years
7. Primary site testicular cancer 10 years
8. Multiple myeloma 15 years
9. Primary site prostate cancer 15 years
10. Primary site ureter cancer 15 years
11. Primary site colorectal cancer 15 years
12. Primary site oesophageal cancer 15 years
(2) An injury by a firefighter disease suffered by a worker is taken to be from firefighting employment in which the worker was engaged if all of the requirements for the application of this section to the injury as specified in subsection (3) are satisfied, unless the employer proves that the injury was not from that employment.
Note for this subsection:
Section 6 determines whether an injury by a disease is from employment. An employer can prove that the injury was not from employment by proving that —
(a) it was not suffered in the course of the employment; or
(b) the employment did not contribute to a significant degree to the injury.
(3) The requirements for the application of this section to an injury by a firefighter disease suffered by a worker are as follows —
(a) when the injury is suffered the worker (whether or not still in firefighting employment) has been in firefighting employment for at least a period of, or periods in aggregate amounting to, the qualifying period for the disease;
(b) the employer is satisfied that when the injury is suffered the worker has been in hazardous firefighting employment for at least a period of, or periods in aggregate amounting to, the lesser of the following —
(i) 5 years;
(ii) the qualifying period for the disease.
(4) In the case of a cancer prescribed by the regulations to be a firefighter disease for the purposes of this section —
(a) this section does not apply to an injury by the firefighter disease suffered by a worker before the day specified in the regulations as the day on and after which this section applies to the injury; and
(b) the regulations may impose other conditions or limitations on the operation of this section.
(5) The day on which a worker's injury by a firefighter disease is taken to have been suffered is the earlier of the following —
(a) the day on which the worker becomes totally or partially incapacitated for work by reason of the injury;
(b) the day on which the injury is first diagnosed by a medical practitioner.
Division 4 — Worker and employer
12. Meaning of "worker" and "employer"
(1) In this section —
person includes —
(a) the State or an agency or instrumentality of the State; and
(b) the Crown, or an agency or instrumentality of the Crown, in any of its other capacities;
training contract means a training contract registered under the Vocational Education and Training Act 1996 Part 7 Division 2.
(2) An individual is a worker if —
(a) the individual has entered into, or works under, a contract of service with a person, whether the contract is express or implied, oral or written; or
(b) the individual —
(i) has entered into a contract with a person to work as an apprentice, or works under a contract with a person as an apprentice, whether the contract is express or implied, oral or written; and
(ii) has entered into a training contract that specifies the individual is undertaking an apprenticeship;
or
(c) the individual has contracted with a person for the performance of work by the individual and —
(i) the work is not work in the course of or incidental to a trade or business regularly carried on by the individual in the individual's own name or under a business or firm name; and
(ii) the individual does not sublet the contract; and
(iii) if the individual employs a worker, the individual performs part of the work personally.
(3) The person with whom the worker has entered into the contract, or for whom the worker works under the contract, is the worker's employer.
Note for this section:
Section 215 sets out circumstances in which both a principal and contractor are taken to be employers of a worker.
13. Prescribed workers and excluded workers
(1) The regulations may provide that an individual of a specified class or description who otherwise would not be, or might not be, a worker under section 12(2) is a worker for the purposes of this Act.
(2) The regulations must provide for the identification of the person who is the employer for the purposes of this Act of each individual who is a worker under regulations made under subsection (1).
(3) The regulations may provide that an individual of a specified class or description who otherwise would be, or might be, a worker under section 12(2) is not a worker for the purposes of this Act.
14. Labour hire arrangements
(1) In this section —
labour hire employment means employment of an individual (the employee) under a contract of employment pursuant to which the services of the employee are temporarily lent or let on hire by the employer (the labour hirer) to another person (the host).
(2) If employment is labour hire employment, the employee is a worker for the purposes of this Act.
(3) If employment is labour hire employment, the labour hirer (and not the host) is the worker's employer for the purposes of this Act for work done personally by the worker for the host but only if the following conditions are satisfied —
(a) there is no contract between the worker and the host for the work to be done for the host;
(b) if the labour hirer is a corporation — the worker is not a director of the corporation.
(4) A reference in subsection (3) to work done for the host includes work done for another person —
(a) at the direction of the host; or
(b) under an arrangement between the labour hirer and the host.
Notes for this section:
1. This section does not make an employment agent the employer of a person for whom the agent finds work if the worker is engaged directly by the person for whom the work is to be done. It makes the labour hirer the employer only if there is no contractual relationship between the worker and the host.
2. Under Part 5 Division 2 the host may be liable as "principal" to pay compensation to the worker as well as the labour hirer under this section. The "principal" may then recover compensation from the labour hirer (see section 217) in specific circumstances.
15. Jockeys
(1) In this section —
licensed means licensed under the Racing and Wagering Western Australia Act 2003;
licensed facility means a place licensed as —
(a) a racecourse; or
(b) a training track; or
(c) a trial track;
licensed jockey means a person licensed as a jockey;
licensed trainer means a person licensed as a trainer of thoroughbred racing horses;
Racing and Wagering Western Australia means the body of that name established under the Racing and Wagering Western Australia Act 2003 section 4;
registered club means a racing club registered under the Racing and Wagering Western Australia Act 2003.
(2) A person who is a licensed jockey is a worker for the purposes of this Act if the person —
(a) is riding a horse in any race run under the management of a registered club; or
(b) is engaged in performing, for a licensed trainer, riding work or the usual duties of a jockey.
(3) The employer for the purposes of this Act of a person who, under subsection (2), is a worker is —
(a) Racing and Wagering Western Australia unless paragraph (b) applies; or
(b) the licensed trainer for whom the person is engaged when the person is performing for the licensed trainer riding work or the usual duties of a jockey but not at a licensed facility and not when riding a horse in any race run under the management of a registered club.
16. Working directors
(1) In this section —
company director has the meaning given to the term director in the Corporations Act 2001 (Commonwealth) section 9;
insurance i