2018
2018
2019-09-13
act
government
publicspecial
act.reprint
act-1987-015
partuncommenced
2018-09-19
2018-10-17
0
act-2018-062
abd98666-1b66-4479-9623-731c32ef04dc
c964a322-0b1e-4831-bb1f-fe6a623546ca
2018
none
Note—
Amending Acts and amending provisions are subject
to automatic repeal pursuant to sec 30C of the Interpretation
Act 1987 No 15 once the amendments have taken
effect.
An Act to amend the Workers
Compensation Act 1987 and other Acts with respect to the
reform of the NSW workers compensation scheme.
1Name of Act
This Act is the Workers
Compensation Legislation Amendment Act
2018.
2Commencement
(1)
This Act commences on a day or days to be
appointed by proclamation, except as provided by subsections (2) and
(3).
(2)
Schedule 5 (Amendments relating to indexation)
commences on 1 December 2018.
(3)
The following provisions of this Act commence on
the date of assent—
(a)
Schedule 4 (Amendments relating to information
sharing) (except Schedule 4 [1] and [2], to the extent that it inserts section
40D into the Workplace Injury Management and
Workers Compensation Act 1998),
(b)
Schedule 6 (Amendments relating to motor
accidents scheme),
(c)
Schedule 7.1,
(d)
Schedule 8 (Amendments relating to savings and
transitional provisions).
Schedule 1Amendments
relating to dispute resolution
1.1, 1.2
1.3Workers Compensation
Regulation 2016
[1]Clause 38 Notice of dispute about
liability
Omit “section 74” from clause 38 (1).
Insert instead “section 78”.
[2]Clause 38 (1) (g)
Omit “or from any”.
Insert instead “, from the Independent
Review Officer or from any other”.
[3]Clause 38 (1), note
Omit ‘Section 74” and
“indicating”.
Insert instead “Section 79” and
“identifying”, respectively.
[4]Clause 38 (2)
Omit the subclause.
[5]–[8]
sch 1: Am 1987 No 15,
sec 30C.
Schedule 2
sch 2: Rep 1987 No
15, sec 30C.
Schedule 3Amendments
relating to pre-injury average weekly earnings
3.1Workers Compensation Act
1987 No 70
[1]Section 32A Definitions
Omit the definitions of base rate of pay,
base rate of pay
exclusion, current weekly
earnings, current work
capacity, no current work
capacity, non-pecuniary
benefit, ordinary earnings,
ordinary hours of
work, pre-injury average weekly
earnings and relevant
period.
[2]Section 32A (2)
Insert at the end of section 32A—
(2)
Words and expressions in this Division that are
defined in Schedule 3 have the meanings provided by that Schedule. The
regulations may amend Schedule 3.
Note—
Definitions include current work
capacity, current weekly
earnings and pre-injury
average weekly earnings.
[3]Section 34 Maximum weekly compensation
amount
Insert before section 34 (1)—
(1AA)
A weekly payment of compensation under this
Subdivision is not to exceed the maximum weekly compensation
amount.
[4]Section 34 (1)
Omit “maximum weekly compensation
amount” from section 34 (1).
Insert instead “maximum weekly
compensation amount”.
[5]Sections 36 and 37
Omit sections 35–37. Insert
instead—
36Weekly payments during first entitlement period (first
13 weeks)
(1)
The weekly payment of compensation to which an
injured worker who has no current work capacity is entitled during the first
entitlement period is to be at the rate of 95% of the worker’s
pre-injury average weekly earnings.
(2)
The weekly payment of compensation to which an
injured worker who has current work capacity is entitled during the first
entitlement period is to be at the lesser of the following rates—
(a)
95% of the worker’s pre-injury average
weekly earnings, less the worker’s current weekly
earnings,
(b)
the maximum weekly compensation amount, less the
worker’s current weekly earnings.
37Weekly payments during second entitlement period
(weeks 14–130)
(1)
The weekly payment of compensation to which an
injured worker who has no current work capacity is entitled during the second
entitlement period is to be at the rate of 80% of the worker’s
pre-injury average weekly earnings.
(2)
The weekly payment of compensation to which an
injured worker who has current work capacity and has returned to work for not
less than 15 hours per week is entitled during the second entitlement period
is to be at the lesser of the following rates—
(a)
95% of the worker’s pre-injury average
weekly earnings, less the worker’s current weekly
earnings,
(b)
the maximum weekly compensation amount, less the
worker’s current weekly earnings.
(3)
The weekly payment of compensation to which an
injured worker who has current work capacity and has returned to work for less
than 15 hours per week (or who has not returned to work) is entitled during
the second entitlement period is to be at the lesser of the following
rates—
(a)
80% of the worker’s pre-injury average
weekly earnings, less the worker’s current weekly
earnings,
(b)
the maximum weekly compensation amount, less the
worker’s current weekly earnings.
[6]Section 38 Weekly payments after second entitlement
period (after week 130)
Omit section 38 (6) and (7). Insert
instead—
(6)
The weekly payment of compensation to which an
injured worker who has no current work capacity is entitled under this section
after the second entitlement period is to be at the rate of 80% of the
worker’s pre-injury average weekly earnings.
(7)
The weekly payment of compensation to which an
injured worker who has current work capacity is entitled under this section
after the second entitlement period is to be at the lesser of the following
rates—
(a)
80% of the worker’s pre-injury average
weekly earnings, less the worker’s current weekly
earnings,
(b)
the maximum weekly compensation amount, less the
worker’s current weekly earnings.
[7]Section 44BAA
Insert after section 44B—
44BAARegulations
The regulations may provide for the procedures to
be followed by insurers in connection with the making of work capacity
decisions, including the adjustment of any amount of weekly payments as a
result of a work capacity decision.
[8]Part 3, Division 2, Subdivision 4,
heading
Omit the heading. Insert instead—
Subdivision 4Miscellaneous
[9]Sections 44C–44I
Omit the sections.
[10]Section 82A Indexation—weekly
payments
Omit section 82A (3).
[11]Schedule 3
Omit the Schedule. Insert instead—
Schedule 3Earnings for purposes of weekly payments of
compensation under Division 2 of Part 3
(Section 32A)
1Application
The words and expressions defined in this
Schedule apply for the purposes of Division 2 of Part 3 of this
Act.
2Meaning of “pre-injury average weekly
earnings”
(1)
Pre-injury
average weekly earnings, in relation to an injured worker,
means the weekly average of the gross pre-injury earnings received by the
worker for work in any employment in which the worker was engaged at the time
of the injury.
Note—
See also clauses 3–5 relating to
modifications of pre-injury average weekly earnings by agreement and in
relation to apprentices, trainees and persons aged under 21
years.
(2)
Except as provided by this clause (or by
regulations made under this clause), in calculating the pre-injury
earnings received by a worker in employment for the purposes
of subclause (1), no regard is to be had to earnings in the employment paid or
payable to the worker for work performed before or after the period of 52
weeks ending immediately before the date of the injury (the relevant earning
period).
(3)
The regulations may provide for the adjustment of
the relevant earning period for a worker in employment (including, for
example, by extending or reducing the period)—
(a)
to take into account any period of unpaid leave
or other change in earnings circumstances in the employment,
or
(b)
to align the relevant earning period with any
regular interval at which the worker is entitled to receive payment of
earnings for work performed in the employment.
(4)
If the amount of a worker’s pre-injury
average weekly earnings is less than any minimum amount prescribed by the
regulations as applicable to the worker, the amount of the worker’s
pre-injury average weekly earnings is taken to be that minimum amount.
Different minimum amounts may be prescribed for different classes of workers,
including part-time and full-time workers.
3Agreements relating to pre-injury average weekly
earnings
(1)
An injured worker and the employer may agree, in
accordance with any requirements of the regulations, as to the amount of
pre-injury average weekly earnings that is to apply to the worker for the
purposes of Division 2 of Part 3 of this Act.
(2)
If a worker enters into an agreement under this
clause, the amount of pre-injury average weekly earnings that applies to the
worker for the purposes of that Division is, subject to the regulations, the
amount so agreed.
(3)
Any decision of the insurer authorised or
required by the regulations to be made in relation to an agreement under this
clause before the agreement can take effect is, subject to the regulations,
taken not to be a work capacity decision for the purposes of that
Division.
4Pre-injury average weekly earnings for short-term
workers
(1)
If, at the time of the injury, the injured worker
had been continuously employed in employment for less than 4 weeks, the
pre-injury
average weekly earnings in relation to the worker may be
calculated having regard to the weekly average of the earnings that the worker
could reasonably have been expected to have earned in the employment, but for
the injury, during the period of 52 weeks after the
injury.
(2)
The regulations may make provision for the
matters to be taken into account for the purposes of determining the earnings
that the worker could reasonably have been expected to have earned in the
employment, but for the injury, during the period of 52 weeks after the
injury.
5Pre-injury average weekly earnings of apprentices,
trainees and young people
(1)
This clause applies to an injured worker who, at
the time of the injury, is—
(a)
under the age of 21 years, or
(b)
an apprentice, or
(c)
working under a contract of employment under
which the worker is required to undergo training, instruction or examination
in order to become qualified to carry on an occupation to which the contract
of employment relates.
(2)
This clause applies to an injured worker under
subclause (1) only if the worker would, but for the injury, have been entitled
to increments in earnings at certain ages or stages during the course of
employment to become qualified.
(3)
The pre-injury
average weekly earnings, in relation to an injured worker to
whom this clause applies, means—
(a)
until the day on which the worker attains the age
or stage or would, but for the injury, have attained the stage at which the
highest rate is payable—the amount of earnings that the worker would
have been entitled to receive in respect of a relevant week if the worker had
not sustained the injury and had continued in the employment,
or
(b)
on and after the day on which the worker attains
the age or stage or would, but for the injury, have attained the age or stage
at which the highest rate is payable—the amount of pre-injury average
weekly earnings calculated under clause 6 as if, at the time of the injury,
the worker were being paid at the highest rate applicable to that age or
stage, or
(c)
if paragraph (a) or (b) applies but there is no
rate applicable to a worker who has attained the age of 21 years, the
worker’s pre-injury average weekly earnings are to be determined in
accordance with the regulations.
(4)
The Workers Compensation Guidelines may make
provision for the matters to be taken into account for the purposes of
determining the weekly earnings that it is likely that a worker would have
been entitled to in a week had the injury not occurred and had he or she
continued in the employment concerned.
6Meaning of
“earnings”
(1)
The earnings received
by a worker in respect of a week means the amount that is the income of the
worker received by the worker for work performed in any employment during the
week.
(2)
The income of a worker
does not include—
(a)
any minimum amount paid to a superannuation fund
or scheme in respect of the week to avoid an individual superannuation
guarantee shortfall, within the meaning of the Superannuation Guarantee
(Administration) Act 1992 of the Commonwealth, for the
worker, or
(b)
the monetary value of any non-monetary benefit
provided to the worker for the performance of work by the worker,
or
(c)
any payment in respect of loss of earnings under
a scheme to which the workers compensation legislation relates or under any
other insurance or compensation scheme.
(3)
However, the monetary value of a non-monetary
benefit of a worker is to be included as part of the income of the worker for
the purposes of the calculation of the weekly payments of compensation payable
to the worker if the worker is not entitled to the use of the
benefit.
(4)
The Workers Compensation Guidelines may make
provision for or with respect to the matters to be taken into account for the
purposes of determining whether a benefit has been provided to a worker or
whether the worker is entitled to the use of a benefit.
7Monetary value of non-monetary
benefits
(1)
The monetary value of a non-monetary benefit in
respect of a week is—
(a)
the value that would be the value as a fringe
benefit for the purposes of the Fringe Benefits Tax Assessment Act
1986 of the Commonwealth, calculated in accordance with
subclause (2), divided by 52, or
(b)
in the case of a non-monetary benefit that is not
a fringe benefit or is otherwise not subject to fringe benefits tax, the
amount that would reasonably be payable for that benefit (having regard to any
matter specified by the Workers Compensation
Guidelines).
(2)
Value as a fringe benefit is to be determined in
accordance with the formula—
where—
TV is the value
that would be the taxable value of the benefit as a fringe benefit for the
purposes of the Fringe Benefits Tax Assessment Act 1986
of the Commonwealth.
FBT rate is
the rate of fringe benefits tax imposed by the Fringe Benefits Tax Assessment Act
1986 of the Commonwealth that applies when the
non-pecuniary benefit is provided.
8Meaning of “current weekly
earnings”
Current weekly
earnings, of an injured worker in relation to a week, means
whichever of the following is the greater amount—
(a)
the worker’s actual gross earnings in
respect of that week,
(b)
the weekly amount that the worker is able to earn
in suitable employment.
9Meaning of “current work capacity” and
“no current work capacity”
(1)
An injured worker has current work
capacity if the worker has a present inability arising from
the injury such that the worker is able to return to the worker’s
pre-injury employment, or is able to return to work in suitable employment,
but the weekly amount that the worker has the capacity to earn in any such
employment is less than the weekly amount that the worker had the capacity to
earn in that employment immediately before the injury.
(2)
An injured worker has no current work
capacity if the worker has a present inability arising from
an injury such that the worker is not able to return to work, either in the
worker’s pre-injury employment or in suitable
employment.
3.2Workplace Injury Management and
Workers Compensation Act 1998 No 86
Section 4 Definitions
Insert in appropriate order in section 4
(1)—
current work
capacity—see Schedule 3 to the 1987
Act.
no current work
capacity—see Schedule 3 to the 1987
Act.
suitable
employment—see section 32A of the 1987
Act.
Schedules 4–6
schs 4–6: Rep
1987 No 15, sec 30C.
Schedule 7Miscellaneous
amendments
7.1–7.3
sch 7: Am 1987 No 15,
sec 30C.
Schedule 8
sch 8: Rep 1987 No
15, sec 30C.
Historical notes
Table of amending instruments
Workers Compensation
Legislation Amendment Act 2018 No 62. Assented to
26.10.2018. Date of commencement of the long title, secs 1 and 2, Sch 1
(except Sch 1.1, 1.2 and 1.3 [5]–[8]) and Sch 7, heading: not in force;
date of commencement of Sch 1.1, 1.2 and 1.3 [5]–[8], Sch 2, Sch 4 [1]
and [2] (to the extent that it inserts sec 40D into the Workplace Injury Management and Workers Compensation Act
1998) and Sch 7.2 and 7.3, 1.1.2019, sec 2 (1) and 2018
(728) LW 14.12.2018; date of commencement of Sch 3, 21.10.2019, sec 2 (1) and
2019 (451) LW 13.9.2019; date of commencement of Schs 4 (except Sch 4 [1] and
[2], to the extent that it inserts sec 40D into Workplace
Injury Management and Workers Compensation Act 1998), 6,
7.1 and 8, assent, sec 2 (3); date of commencement of Sch 5, 1.12.2018, sec 2
(2).
This Act has been amended by sec 30C of the
Interpretation Act 1987 No
15.
Table of amendments
Sch 1
Am 1987 No 15, sec
30C.
Sch 2
Rep 1987 No 15, sec
30C.
Schs
4–6
Rep 1987 No 15, sec
30C.
Sch 7
Am 1987 No 15, sec
30C.
Sch 8
Rep 1987 No 15, sec
30C.