Part 1 Preliminary
1 Name of Regulation
This Regulation is the Workers Compensation Regulation 2010.
2 Commencement
This Regulation commences 1 February 2011 and is required to be published on the NSW legislation website.
3 Definitions
(1) In this Regulation:approved form means a form approved by the Authority.approved provider of workplace rehabilitation services means a provider that holds a certificate of approval.category 1 employer means:(a) an employer insured under a policy of insurance to which the insurance premiums order for the time being in force applies and whose basic tariff premium (within the meaning of that order) for that policy would exceed $50,000, if the period of insurance to which the premium relates were 12 months, or(b) an employer insured under more than one policy of insurance to which the insurance premiums order for the time being in force applies and whose combined basic tariff premiums (within the meaning of that order) for those policies would exceed $50,000, if the period of insurance to which each premium relates were 12 months, or(c) an employer who is self-insured, or(d) an employer who is insured with a specialised insurer and who employs more than 20 workers.category 2 employer means an employer who is not a category 1 employer.certificate of approval means a certificate of approval as a provider of workplace rehabilitation services granted by the Authority under clause 28.return-to-work guidelines means the guidelines, relating to return-to-work programs, determined by the Authority under section 52 (2) (a) of the 1998 Act.return-to-work program means a return-to-work program established under section 52 of the 1998 Act with respect to policies and procedures (consistent with the injury management program of the employer’s insurer) for the rehabilitation (and, if necessary, vocational re-education) of any injured workers of the employer.the 1987 Act means the Workers Compensation Act 1987.the 1998 Act means the Workplace Injury Management and Workers Compensation Act 1998.(2) Notes included in this Regulation (other than notes in Schedule 6) do not form part of this Regulation.
Part 2 Work-related diseases
4 Diseases taken to be work-related
(1) Each kind of employment set out in Column 2 of Schedule 1 is prescribed as employment to which section 19 (1) of the 1987 Act applies.(2) A disease set out in Column 1 of Schedule 1 is prescribed as a disease that is related to the employment or, as the case may require, each kind of employment, set out in Column 2 of that Schedule opposite the description of that disease.
5 Medical tests and results to determine whether brucellosis, Q fever or leptospirosis is work-related
For the purposes of section 19 (2) of the 1987 Act, any one of the results set out in Column 3 of Schedule 2, if obtained by means of the medical test the requirements of which are set out opposite that result in Column 2 of that Schedule, is a result prescribed in respect of the disease, the name of which appears opposite that result in Column 1 of that Schedule.
Part 3 Current weekly wage rate
6 Interpretation
A reference in this Part to an amount of money specified in an award or to an amount of a rate per 5 days or week or a minimum weekly rate fixed by an award or a Part or Division of an award is a reference to the amount or minimum weekly rate that is for the time being specified in, or fixed by, the award, Part, Division or industrial agreement, as the case may be, as in force from time to time.
7 Sec 42 (1) (c), (5) (b) of the 1987 Act: prescribed classes of workers by order
(1) The Authority may by order published in the Gazette:(a) declare a specified class or classes of workers to be a class of workers to which this clause applies, and(b) specify the manner in which the current weekly wage rate of a worker of each such class is to be calculated for the purposes of section 42 (1) (c) of the 1987 Act.(2) Each class of workers to which this clause applies by virtue of an order of the Authority under this clause is prescribed for the purposes of section 42 (1) (c) and (5) (b) of the 1987 Act.(3) The manner specified in the order as the manner of calculating the current weekly wage rate of a class of workers is prescribed for the purposes of section 42 (1) (c) of the 1987 Act in respect of that class of workers.(4) While an order of the Authority in force under this clause applies to a class of workers, clauses 8 and 9 do not apply to that class of workers.
8 Sec 42 (1) (c), (5) (b) of the 1987 Act: prescribed classes of workers etc—shearers
(1) For the purposes of section 42 (1) (c) and (5) (b) of the 1987 Act, the following classes of workers are prescribed:(a) shearers bound by the Pastoral Employees (State) Award under the Industrial Relations Act 1996,(b) shearers bound by the Pastoral Industry Award 1998 under the Fair Work Act 2009 of the Commonwealth.(2) For the purposes of section 42 (1) (c) of the 1987 Act, the formula prescribed in respect of each class of workers prescribed by subclause (1) isper week, where A is the amount of money specified in clause 12 (a) (i) of the award referred to in subclause (1) (b).
9 Sec 42 (1) (c), (5) (b) of the 1987 Act: prescribed classes of workers etc—certain meat industry workers
(1) Workers engaged in the meat processing industry whose employment is subject to an industrial instrument that provides for the payment of “overs” or a production loading under a tally, piecework or incentive system in respect of work performed in that industry are prescribed as a class of workers for the purposes of section 42 (1) (c) and (5) (b) of the 1987 Act.(2) In this clause:industrial instrument means a State industrial instrument or an instrument of a similar nature under the law of another State, a Territory or the Commonwealth, and includes any agreement or other arrangement in force under such an instrument.(3) For the purposes of section 42 (1) (c) of the 1987 Act, the formula prescribed for each worker of the class prescribed by subclause (1) is whichever of the following formulae is appropriate:(a) except as provided by paragraphs (b), (c) and (d), the formula is:%20AND%20(No%3D0037)%20AND%20(Year%3D2011)%20AND%20(%22Historical%20Document%22%3D%222013-03-22%22))/g2.gif)
(b) where the formula prescribed by paragraph (a) provides a greater rate for a particular week for the worker (being a worker whose employment is subject to an industrial instrument that provides for the payment of “overs” to the worker) than the rate ofper week, the formula is
per week for that week for that worker,
(c) where the formula prescribed by paragraph (a) provides a smaller rate for a particular week for the worker than the rate ofper week, the formula is
per week for that week for that worker,
(d) where the formula prescribed by whichever of paragraphs (a), (b) and (c) is appropriate provides a smaller rate for a particular week for the worker than any special rate (as referred to in subclause (4)) applicable to the worker for that week—the special rate applicable to the worker for that week.(4) A reference in subclause (3) (d) to a special rate applicable to a worker for a particular week is a reference to a special weekly wage rate that is applicable to the worker under an industrial instrument for any period for which the worker is absent from work because of sickness or injury.(5) In the application of the formulae prescribed by subclause (3) for the purpose of determining compensation payable in respect of a period of incapacity (consisting of a week or any part thereof) of a worker of the class prescribed by subclause (1):A1 equals:(a) where that period consists of, or includes, Monday of that week and any other worker who is a co-worker of the injured worker worked on that Monday—the prescribed amount payable to that other worker for that Monday, or(b) in any other case—0.A2 equals:(a) where that period consists of, or includes, Tuesday of that week and any other worker who is a co-worker of the injured worker worked on that Tuesday—the prescribed amount payable to that other worker for that Tuesday, or(b) in any other case—0.A3 equals:(a) where that period consists of, or includes, Wednesday of that week and any other worker who is a co-worker of the injured worker worked on that Wednesday—the prescribed amount payable to that other worker for that Wednesday, or(b) in any other case—0.A4 equals:(a) where that period consists of, or includes, Thursday of that week and any other worker who is a co-worker of the injured worker worked on that Thursday—the prescribed amount payable to that other worker for that Thursday, or(b) in any other case—0.A5 equals:(a) where that period consists of, or includes, Friday of that week and any other worker who is a co-worker of the injured worker worked on that Friday—the prescribed amount payable to that other worker for that Friday, or(b) in any other case—0.B equals:(a) the total number of days of that period on which other co-workers of the injured worker worked, or(b) where there are no such days—0.C equals the weekly rate applicable under any relevant industrial instrument to co-workers of the injured worker.weekly rate (in relation to what C equals) is the amount of the rate fixed or set under an industrial instrument in respect of co-workers of the injured worker as the tally rate per 5 days, ordinary rate per 5 days, ordinary weekly rate or minimum weekly rate of pay.(6) For the purposes of subclause (5), a worker is a co-worker of an injured worker if the worker is normally employed with the injured worker at a common place of employment and under the same classification as the injured worker.(7) A reference in subclause (5) to the prescribed amount payable to a worker for a day on which the worker worked is a reference to the amount of money that the worker is entitled, under the industrial instrument by which the worker is bound, to be paid for that day’s work:(a) exclusive of any amount that the worker is so entitled to be paid in respect of shift work or overtime or otherwise at penalty rates, and(b) inclusive of any amount that the worker is so entitled to be paid in respect of “overs” or (subject to subclause (8)) in respect of production loading.(8) For the purposes only of subclause (7) (b), an amount a worker is entitled to be paid in respect of production loading for a day’s work is taken not to include:(a) in the case of a worker for whom production loading is calculated by reference to weekly production, any amount in excess of one-fifth of the production loading that would be payable to the worker in respect of the week in which that day occurs if the workers (in relation to whose “overs” that production loading is calculated) completed during that week a number of “overs” that provided each of those workers with pay for that week that is equivalent to the amount of money calculated in accordance with the formula, or
in each case with C having the value ascribed to it in subclause (5).(b) in the case of a worker for whom production loading is calculated by reference to daily production, any amount in excess of the production loading that would be payable to the worker in respect of that day if the workers (in relation to whose “overs” that production loading is calculated) completed during that day a number of “overs” that provided each of those workers with pay for that day that is equivalent to the amount of money calculated in accordance with the formula,
10 Sec 42 (1) (d) of the 1987 Act: prescribed rate
(1) For the purposes of section 42 (1) (d) of the 1987 Act, and clause 7 (2) (b) of Part 4 of Schedule 6 to the 1987 Act, the prescribed rate in respect of a period specified in Column 1 of the Table to this clause is the rate specified in Column 2 of that Table opposite that period.(2) This clause applies only to workers who, before 1 February 1992, became entitled to receive weekly payments in respect of incapacity for work.Table
10A Prescribed number of hours—calculation of PIAWE
For the purposes of each mention of the prescribed number of hours each week or the prescribed number of hours per week in Schedule 3 (Pre-injury average weekly earnings) to the 1987 Act, the prescribed number of hours is 38 hours.cll 10A: Ins 2012 (480), Sch 1 [1].
10B Minimum amount of PIAWE
The amount of $155 is prescribed as the minimum amount applicable to a worker for the purposes of section 44C (7) of the 1987 Act.cll 10B: Ins 2012 (480), Sch 1 [1].
Part 4 Indexation of amounts of benefits
11 Meaning of “latest index number”
For the purposes of paragraph (b) of the definition of latest index number in section 79 of the 1987 Act, the latest index number in respect of an adjustment date specified in Column 1 of the Table to this clause is the number specified in Column 2 of that Table opposite that date.Table
Part 5 Weekly compensation
12 Notice of requirement to obtain suitable employment from other person
(1) A notice under section 38A (3) of the 1987 Act:(a) may be based on the model form (if any) set out in the claims procedures referred to in section 38A (3) (d) of the 1987 Act, and(b) may include additional information and explanatory matter to assist in the understanding of the notice, and(c) may be varied or replaced by a further notice given to the worker in accordance with section 38A (3) of the 1987 Act.(2) Reminder copies of a notice under section 38A (3) of the 1987 Act may be given to the worker concerned from time to time.(3) A notice given to a worker in accordance with section 38A (3) of the 1987 Act is sufficient notice for any further period of unemployment in respect of the same injury.(4) In the case of any worker:(a) who, before the commencement of Schedule 1 to the Workers Compensation Legislation (Amendment) Act 1994, was at the same time both partially incapacitated for work as the result of an injury and unemployed, andthe requirement under section 38A (2) (d) of the 1987 Act applies regardless of whether the worker has been notified in accordance with section 38A (3) of the 1987 Act.(b) who is, as at or at any time after that commencement, both partially incapacitated for work as the result of that injury and unemployed,
13 Computation of average weekly earnings
For the purposes of section 43 (2) of the 1987 Act, the period of 14 days is prescribed in relation to any request made on or after 1 November 2006.
14 (Repealed)
cl 14: Rep 2012 (480), Sch 1 [2].
Part 6 Return-to-work programs
15 Time within which program to be established
(1) A return-to-work program required to be established by a category 1 employer must be established before the expiration of the period of 12 months after the employer becomes a category 1 employer.(2) A return-to-work program required to be established by a category 2 employer must be established before the expiration of the period of 12 months after the employer becomes a category 2 employer.(3) The Authority may, in a particular case, extend the period during which a return-to-work program is required to be established.Note—Section 52 (2) (b) of the 1998 Act requires a return-to-work program to be developed by an employer in consultation with workers of the employer and any industrial union of employees representing those workers.
16 Offence—failure to establish program
An employer who fails to establish a return-to-work program under section 52 of the 1998 Act within the period required by this Regulation is guilty of an offence.Maximum penalty:(a) in the case of a category 2 employer, 5 penalty units,(b) in the case of a category 1 employer, 20 penalty units.
17 Standard return-to-work programs for category 2 employers
(1) The Authority may prepare (in accordance with the return-to-work guidelines) standard return-to-work programs for category 2 employers generally or for different kinds of category 2 employers.(2) A category 2 employer who does not establish a separate return-to-work program in accordance with the 1998 Act may establish a return-to-work program by adopting a relevant standard return-to-work program prepared under this clause.(3) The Authority may include in a compensation claim approved form under section 65 (1) (b) of the 1998 Act a copy of any standard return-to-work program prepared under this clause.
18 Program to comply with return-to-work guidelines etc
(1) An employer is not to be regarded as having established a return-to-work program unless the program complies with the return-to-work guidelines and any directions under or requirements of this Regulation.(2) A category 2 employer who adopts a relevant standard return-to-work program under clause 17 is to be regarded as having duly established a return-to-work program.
19 Return-to-work guidelines for programs—directions
(1) The Authority may give an employer directions in writing in connection with any return-to-work program established, or to be established, by the employer to ensure that the program complies with the return-to-work guidelines.(2) The Authority is to review a direction given by it under this clause if the employer concerned requests a review but need not review any particular direction more than once.
20 Nomination in programs of approved providers of workplace rehabilitation services
(1) A return-to-work program must, if the return-to-work guidelines so require, nominate an approved provider of workplace rehabilitation services (or a list of such approved providers) for the purposes of the program.(2) Consultation on the nomination of an approved provider of workplace rehabilitation services is to be carried out in such circumstances and in such manner as the return-to-work guidelines may provide.
21 Offence—failure to display or notify program
An employer who fails to display or notify a return-to-work program in accordance with section 52 (2) (c) of the 1998 Act at the places of work under the employer’s control is guilty of an offence.Maximum penalty:(a) in the case of a category 2 employer, 2 penalty units,(b) in the case of a category 1 employer, 10 penalty units.
22 Notification etc of program by category 2 employer
A category 2 employer is not required to display or notify a return-to-work program at the places of work under the employer’s control:(a) if the employer provides a copy of the program to any worker who requests a copy or who claims compensation for any injury, or(b) if the employer makes other appropriate arrangements to ensure that workers have access to a copy of the program.
23 Category 1 employers must have return-to-work co-ordinator
(1) A category 1 employer must:(a) employ a person to be a return-to-work co-ordinator for injured workers of the employer, being a person who has undergone such training as the return-to-work guidelines may require, or(b) engage a person in accordance with such arrangements as the return-to-work guidelines may from time to time permit to be a return-to-work co-ordinator for injured workers of the employer.Maximum penalty: 20 penalty units.(2) The following are examples of the arrangements that the return-to-work guidelines can permit for the purposes of this clause:(a) the engagement of a person under an arrangement with a person or organisation that provides return-to-work co-ordinators to employers,(b) an arrangement under which a person is engaged on a shared basis by 2 or more employers.(3) The return-to-work guidelines can require an employer to obtain the approval of the Authority before entering into an arrangement for the purposes of subclause (1) (b).(4) The return-to-work guidelines can impose requirements with respect to the training, qualifications and experience of persons who may be engaged to be return-to-work co-ordinators under subclause (1) (b).
24 Functions of return-to-work co-ordinators
An employer’s return-to-work co-ordinator has such functions as may be specified in the return-to-work guidelines.
25 Shared return-to-work programs
(1) For the purposes of section 52 (5) of the 1998 Act, a group of 2 or more employers may establish a single return-to-work program for the members of the group if:(a) those employers have engaged a person to be a return-to-work co-ordinator for injured workers of those employers on a shared basis, and(b) in the opinion of the Authority:(i) those employers are engaged in the same business, or(ii) those employers operate in the same locality, or(iii) those employers satisfy any requirements of the return-to-work guidelines imposed for the purposes of this paragraph, and(c) in the opinion of the Authority, those employers have complied with all of the requirements of the return-to-work guidelines with respect to the establishment of a single return-to-work program for groups of employers.(2) The return-to-work guidelines can require employers to obtain the approval of the Authority for:(a) the establishment of a single return-to-work program for a group of employers, and(b) the terms of a single return-to-work program and any revisions or amendments to those terms.
26 Exemptions
The following classes of employers, to the extent indicated, are exempt from the requirement to establish a return-to-work program under section 52 of the 1998 Act and from clause 23:(a) employers (including bodies corporate for strata schemes or strata (leasehold) schemes) who employ domestic or similar workers otherwise than for the purposes of the employer’s trade or business (but only to the extent of the workers concerned),(b) employers who hold owner-builders permits under the Home Building Act 1989 (but only to the extent of workers employed for the purposes of the work to which the permits relate),(c) employers (being corporations) who only employ workers who are directors of the corporation,(d) employers who only employ workers who are members of the employer’s family,(e) employers who only employ workers who perform work while outside New South Wales,(f) employers exempted in writing by the Authority (but only to the extent specified in the exemption).
Part 7 Approval of workplace rehabilitation providers
27 Application for certificate of approval
(1) A person may apply to the Authority for a certificate of approval as a provider of workplace rehabilitation services.(2) Two or more persons jointly providing, or intending to jointly provide, workplace rehabilitation services may (but are not required to) apply for a joint certificate of approval.(3) An application must:(a) be in the approved form, and(b) contain such particulars and be accompanied by such documents as may be required by that form, and(c) be accompanied by such fee as the Authority may determine.
28 Determination of application
(1) The Authority is to determine an application for a certificate of approval:(a) by granting a certificate to the applicant in the applicant’s name, or, if there is more than one applicant, in their joint names, or(b) by refusing to grant a certificate.(2) In determining an application for a certificate of approval, the Authority is to have regard to:(a) the application, and(b) in relation to the applicant or each applicant (if more than one):(i) if the applicant is a natural person—the desirability of granting individual approval to natural persons, and(ii) the capacity of the applicant to comply with the conditions of approval for workplace rehabilitation providers approved by the Authority, and(iii) any information supplied by a trade union or employer organisation relating to the applicant’s provision of rehabilitation services, and(iv) any complaint lodged with the Authority against the applicant by a client of the applicant, and(v) information procured in the course of any interviews with or examination of premises used by the applicant, and(vi) verification of any references supplied by the applicant, and(c) any relevant information relating to workers compensation costs and statistics concerning the return to work of injured workers, and(d) such other matters as the Authority thinks fit.(3) The Authority must not grant a certificate unless:(a) in the case of an application by a natural person or natural persons—the Authority is of the opinion that the applicant or each applicant is a fit and proper person to hold a certificate and is of or above the age of 18 years, and(b) in the case of an application by a corporation:(i) the Authority is of the opinion that the corporation is a fit and proper person to hold a certificate, and(ii) each director of the corporation would, if the application had been made by the director, be a fit and proper person to be granted a certificate.
29 Form of certificate of approval
(1) A person may be granted a certificate of approval in respect of one or more of the following classes of approval:(a) a provider of services related to return to work with the pre-injury employer,(b) a provider of services related to return to work with a different employer,(c) a provider of specialist workplace rehabilitation services.(2) A certificate is to be in the approved form and is to specify:(a) the name of the person or, in the case of a joint certificate, the names of the persons to whom the certificate is granted, and(b) the class or classes of approval for which the certificate is granted.
30 Holder of certificate to comply with conditions
(1) It is a requirement of every certificate of approval that the holder of the certificate must comply with the conditions for approval for workplace rehabilitation providers approved by the Authority that are appropriate for the class or classes of approval for which the certificate is granted, being conditions of which the holder has been notified.(2) A certificate may be granted subject to such other conditions as may be specified in the certificate.(3) The Authority may, by notice in writing served on the holder of a certificate, amend or revoke the conditions specified in the certificate or add to those conditions.(4) Any such amendment, revocation or addition takes effect on and from a date specified in the Authority’s notice, being a date at least 7 days after the notice is served on the holder of the certificate.
31 Amendment of certificate
(1) The Authority may amend a certificate:(a) on the application of a person who does not hold a certificate and proposes to provide a workplace rehabilitation service jointly with the holder of a certificate, by adding the name of the person as a joint holder of the certificate, or(b) on the application of a joint holder of a certificate who ceases to provide workplace rehabilitation services, by deleting the person’s name from the certificate, or(c) on the application of a holder of a certificate, by amending the specification of the class or classes of approval for which the certificate is granted.(2) An application under this clause must:(a) be in the approved form, and(b) contain such particulars and be accompanied by such documents as may be specified in that form, and(c) be accompanied by such fee as the Authority may determine.(3) The Authority is to determine an application under this clause:(a) by granting the application and amending the certificate accordingly, or(b) by refusing the application.(4) If an application referred to in subclause (1) (a) is granted and the certificate is amended by specifying in the certificate the name of the person concerned, that person is taken to be a person to whom the certificate is granted.
32 Notice of refusal
(1) If the Authority refuses to grant or amend a certificate of approval, the Authority must as soon as practicable cause notice of the refusal to be served on the applicant.(2) In the case of a joint application, it is a sufficient compliance with subclause (1) if the notice of refusal is served on any one of the applicants.(3) The Authority is taken to have refused to grant or amend a certificate (and is taken to have notified the applicant accordingly) if the Authority does not give a decision on an application within 4 months after the date of lodgment of the application.
33 Duration of certificates
(1) A certificate of approval remains in force, unless sooner cancelled or surrendered, for such period as may be determined by the Authority and specified in the certificate.(2) A certificate may be renewed from time to time by the grant of a further certificate.
34 Surrender of certificates
A holder of a certificate of approval may surrender it by delivering it to the Authority with notice in writing that the certificate is surrendered.
35 Duplicate certificates
If the Authority is satisfied that a certificate of approval has been lost or destroyed, the Authority may, on payment of such fee as the Authority may determine, issue a duplicate certificate.
36 Register of certificates
(1) The Authority is to cause a register of certificates of approval to be kept, in such form as the Authority determines, and is to cause to be recorded in the register in respect of each certificate:(a) the matters which by this Regulation are required to be specified in the certificate, and(b) particulars of any amendment of the certificate, and(c) particulars of any cancellation, suspension or surrender of the certificate, and(d) such other matters as the Authority thinks fit.(2) The Authority may cause to be made such alterations of the register as are necessary to ensure that the register is an accurate record.(3) The register may be inspected by any person at the office of the Authority during the Authority’s usual office hours and copies of all or any part of the register may be taken on payment of such fee as the Authority may determine.
37 False or misleading statements
A person must not, in or in connection with an application for a certificate of approval or amendment of such a certificate, make any statement which the person knows to be false or misleading in a material particular.Maximum penalty: 20 penalty units.
38 Cancellation or suspension of certificate
(1) The Authority may cancel or suspend a certificate of approval if the Authority is satisfied:(a) that the holder of the certificate has made a statement in or in connection with an application for the certificate or amendment of the certificate that the holder knows to be false or misleading in a material particular, or(b) that the holder of the certificate has contravened a condition of the certificate, or(c) that the holder of the certificate has been convicted of an offence involving fraud or dishonesty punishable on conviction by imprisonment for 3 months or more, or(d) that the holder of the certificate, not being a corporation, has become bankrupt, applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with creditors or made an assignment of remuneration for their benefit, or(e) that the holder of the certificate, being a corporation:(i) is in the course of being wound up, or(ii) is under administration, or(iii) is a corporation in respect of the property of which a receiver or manager (or other controller within the meaning of the Corporations Act 2001 of the Commonwealth) has been appointed, or(iv) has entered into a compromise or arrangement with its creditors, or(f) that the holder of the certificate has not provided workplace rehabilitation services for a continuous period of 3 months or more, or(g) that the holder of the certificate is for any other reason not a fit and proper person to hold a certificate, or(h) in the case of a holder of a certificate, being a corporation—that any director of the corporation:(i) has been convicted of an offence referred to in paragraph (c), or(ii) for any other reason would not be a fit and proper person to hold a certificate, if the certificate were held by the person.(2) The grounds referred to in subclause (1) (except paragraph (f)) are taken to exist:(a) in the case of a joint certificate—if those grounds apply to any holder of that certificate, or(b) in the case of 2 or more certificates held by persons providing workplace rehabilitation services in partnership—if those grounds apply to any holder of any of those certificates.(3) Before cancelling or suspending a certificate, the Authority must give the holder of the certificate an opportunity to show cause why the certificate should not be cancelled or suspended on such grounds as are notified to the holder.(4) The cancellation or suspension of a certificate does not take effect until notice in writing of the cancellation or suspension has been served on the holder of the certificate.
39 False claim of approval
A person must not falsely hold himself or herself out as being the holder of a certificate of approval.Maximum penalty: 20 penalty units.
Part 8 Notices and claims procedure
40 Notification of workplace injury
(1) For the purposes of section 44 (2) of the 1998 Act, notification to an insurer or the Authority by an employer that a worker has received a workplace injury must be given in any of the following ways:(a) by electronic communication (using a mode of electronic communication approved by the insurer or the Authority) providing the information requested by the insurer or the Authority,(b) in writing by completing a notification form approved for the purpose by the insurer or the Authority and sending the completed form to the insurer or the Authority by post or facsimile transmission at the address or facsimile number indicated on the form, or by completing and lodging the form in person at an office of the insurer or the Authority,(c) by telephone to the insurer or the Authority, giving such information as may be requested of the caller.(2) For the purposes of section 44 (3) of the 1998 Act, an insurer who has been given notice by an employer under section 44 (2) of that Act that a worker has received a workplace injury must forward that notice to the Authority using a mode of electronic communication approved by the Authority.(3) An employer who gives a notification under section 44 (2) of the 1998 Act must make and keep for at least 5 years after the notification is given:(a) a record of the date, time, place and nature of the injury to which the notification relates, and(b) a record of the date on which and the way in which the notification was given, and(c) a record of any acknowledgement (such as a receipt number) given to the employer by the insurer or the Authority as evidence of receipt of the notification.Note—An entry in the register of injuries kept under section 256 of the 1998 Act is a sufficient record of an injury for the purposes of this clause. The record of an acknowledgement of the notification can also be made and kept as part of the register of injuries.(4) An employer must make the records kept under subclause (3) available for inspection in accordance with, and in any event no later than 7 days after the date of, a request by:(a) an authorised officer, or(b) if any employee of the employer is a member of an industrial organisation of employees—an authorised employee representative of that organisation.(5) In this clause:of an industrial organisation of employees, means a person who is an authorised industrial officer within the meaning of Part 7 of Chapter 5 of the Industrial Relations Act 1996 in respect of that industrial organisation of employees.means an authorised officer under section 238 of the 1998 Act.Maximum penalty: 20 penalty units.
41 Employer must give early notification of workplace injury
A person who fails to comply with section 44 (2) of the 1998 Act is guilty of an offence.Maximum penalty: 20 penalty units.
42 Notice of injury involving loss of hearing
(1) If an injury is a loss, or further loss, of hearing that is of such a nature as to be caused by a gradual process (including boilermaker’s deafness and any deafness of a similar origin):(a) notice of injury is to be given by the worker under section 62 of the 1998 Act:(i) if the worker is employed by an employer in an employment to the nature of which the injury is due to that employer, or(ii) if the worker is not so employed, to the last employer by whom the employer was employed in an employment to the nature of which the injury is due, and(b) the notice must be in writing and be in the approved form.(2) Any forms issued by insurers and self-insurers for the giving of notice by workers of an injury referred to in subclause (1) must also contain such information (if any) as the Authority may from time to time approve and notify to insurers and self-insurers.
43 Notice of dispute about liability
(1) The notice given to a claimant under section 74 of the 1998 Act must contain the following:(a) in relation to a coal miner matter:(i) a statement to the effect that the worker can refer the dispute for determination by the District Court, and(ii) if the insurer has referred or proposes to refer the dispute for determination by the District Court, a statement to that effect specifying the date of referral or proposed referral, and(iii) a statement to the effect that the matters that may be referred to the District Court are limited to matters notified in the notice, in a notice after a further review in correspondence prior to any such referral concerning an offer of settlement or in a request for a further review, except with the leave of the District Court,(b) in relation to a work injury damages dispute:(i) a statement to the effect that, before a claimant can commence court proceedings, the claimant must firstly serve a pre-filing statement (in accordance with section 315 of the 1998 Act) on the defendant and secondly refer the claim to the Commission for mediation (in accordance with section 318A of the 1998 Act), and(ii) a statement to the effect that the claimant is not entitled to raise matters in court proceedings that are materially different from those contained in the pre-filing statement, except with the leave of the court,(c) a statement identifying all the reports and documents submitted by the worker in making the claim for compensation,(d) a statement identifying all the reports of the type to which clause 46 applies that are relevant to the decision, whether or not the reports support the reasons for the decision,(e) a statement advising that a copy of a report required to be provided by the insurer under clause 46 (3) (except as provided by clause 46 (5) or (6)) accompanies the notice,(f) advice as to the procedure for requesting a review of the decision,(g) a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, from a lawyer or from the WorkCover Claims Assistance Service,(h) the street address and the email address of the Registrar of the Commission or the Registrar of the District Court, as appropriate.Note—Section 74 of the 1998 Act requires the notice to also include a concise and readily understandable statement of the reason the insurer disputes liability and of the issues relevant to the decision (indicating, in the case of a claim for compensation, any provision of the workers compensation legislation on which the insurer relies to dispute liability).(2) A person who fails to comply with section 74 of the 1998 Act in respect of a claim for compensation is guilty of an offence.Maximum penalty: 20 penalty units.(3) It is a defence to a prosecution for an offence of failing to comply with section 74 (2B) of the 1998 Act if it is established that the notice complied with guidelines issued by the Authority as to how the notice concerned was to be expressed.cl 43: Am 2012 (480), Sch 1 [3].
44 Form of notice to be posted up at workplace
(1) For the purposes of section 231 (1) of the 1998 Act:(a) the summary of the requirements of that Act with regard to the giving of notice of injuries and the making of claims is to be in the approved form, and(b) the other information required to be posted up in accordance with that section is the other information contained in the approved form.(2) An approved form that ceases to be an approved form (as a result of the amendment or substitution of an approved form) continues to be an approved form for the purposes of a notice posted up under section 231 of the 1998 Act that was in that form immediately before it ceased to be an approved form, but only until the earlier of:(a) the renewal or replacement of the notice, or(b) 12 months after the form ceases to be an approved form.
45 Form of register of injuries to be kept at workplace
(1) The register of injuries required to be kept under section 256 of the 1998 Act may be kept in written or electronic form.(2) The register of injuries may be kept in electronic form only if the employer provides education, training and facilities to ensure that workers are able to access the register.(3) The particulars to be entered in the register of injuries are the following:(a) the name of the injured worker,(b) the worker’s address,(c) the worker’s age at the time of injury,(d) the worker’s occupation at the time of injury,(e) the industry in which the worker was engaged at the time of injury,(f) the time and date (or deemed date) of injury,(g) the nature of the injury,(h) the cause of the injury.
46 Access to certain medical reports and other reports obtained by insurer: sections 73 and 126 of 1998 Act
(1) This clause applies to the following types of reports that an employer or insurer has in the employer’s or insurer’s possession:(a) medical reports, including medical reports provided pursuant to section 119 of the 1998 Act (Medical examination of workers at direction of employer),(b) medical certificates,(c) clinical notes,(d) investigators’ reports,(e) workplace rehabilitation providers’ reports,(f) health service providers’ reports,(g) reports of assessments under section 40A (Assessment of incapacitated worker’s ability to earn) of the 1987 Act,(h) reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made,(i) wage details required to be supplied under section 43 (2) of the 1987 Act where a decision has been made to decline payment of, or reduce the amount of, weekly benefits, but only if such details have not already been supplied to the worker.(2) This clause applies to the following decisions of an employer or insurer relating to an injured worker:(a) a decision to dispute liability in respect of a claim, or any aspect of a claim (in circumstances requiring the insurer to give the worker a notice and reasons under section 74 of the 1998 Act),(b) a decision to discontinue payment, or to reduce the amount of weekly benefits (in circumstances requiring the insurer to give the worker a notice of intention under section 54 of the 1987 Act),(c) a decision on the review under section 287A of the 1998 Act of a decision described in paragraph (a) or (b) that confirms the original decision.(3) If an employer or insurer makes a decision to which this clause applies, the employer or insurer must provide a copy of any relevant report to which this clause applies to the worker, as an attachment to a notice under section 74 of the 1998 Act, section 54 of the 1987 Act or section 287A of the 1998 Act, as the case may be, except where the report has already been supplied to the worker and that report is identified in a statement under clause 14 (1) (c) or 43 (1) (d).(4) The obligation in this clause to provide a copy of a report applies to any report that is relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reasons for the decision.(5) If the employer or insurer is of the opinion that supplying a worker with a copy of a report would pose a serious threat to the life or health of the worker or any other person, the employer or insurer may instead supply the report:(a) in the case of a medical report, medical certificate or clinical notes—to a medical practitioner nominated by the worker for that purpose, or(b) in any other case—to a legal practitioner representing the worker.(6) If, on the application of an employer or insurer, the Authority is satisfied that supplying the worker with a copy of the report would pose a serious threat to the life or health of the worker or any other person and that supplying the report as provided by this clause would not be appropriate, the Authority may:(a) direct that the report be supplied to such other persons as the Authority considers appropriate, or(b) make such other directions as the Authority thinks fit.
47 Interim payment direction not presumed to be warranted: sec 297 of 1998 Act
For the purposes of section 297 (3) (e) of the 1998 Act, it is not to be presumed that an interim payment direction for weekly payments of compensation is warranted in circumstances where the insurer has given the worker notice under section 74 of the 1998 Act (Insurers to give notice and reasons when liability disputed).
Part 9 Restrictions on obtaining medical reports
48 Definitions
In this Part:claim means a claim for compensation payable or claimed to be payable under the 1987 Act.proceedings means proceedings before the Commission or the District Court.work injury damages threshold dispute means a dispute within the meaning of section 314 of the 1998 Act.
49 Restrictions on number of medical reports that can be admitted
(1) In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.(2) A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.(3) Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.(4) In this clause:forensic medical report, in relation to a claim or dispute:(a) means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and(b) includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act, and(c) does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.
50 Supplementary reports admissible
(1) Despite clauses 49 and 51, a medical report other than the original report (a supplementary report) may be admitted if:(a) it has the purpose of clarifying the original report, for example, where it can be shown that there has been some omission in relation to the material originally provided that could lead to an opinion in the original report being expressed on the basis of inaccurate or incomplete information and it does not go outside the parameters of the original report, but merely confirms, modifies or retracts an opinion expressed in the original report, or(b) it has the purpose of updating the original report by confirming, modifying or retracting an opinion expressed in the original report, or(c) it has the purpose of addressing issues omitted from the original report, or(d) it has the purpose of addressing an opinion in the other party’s medical report.(2) A supplementary report can be provided as an addendum to the original report and in such a case the original report together with that addendum constitute the report referred to in clauses 49 and 51.(3) A supplementary report must have been provided by the medical practitioner who provided the original report except when the medical practitioner has ceased (permanently or temporarily) to practise in the specialty concerned, in which case the supplementary report must be provided by another medical practitioner of the same specialty.
51 Restriction on disclosure of forensic medical reports to approved medical specialists
(1) A forensic medical report must be disclosed to an approved medical specialist in connection with a claim or a work injury damages threshold dispute if any of the following occurs:(a) the report was admitted in proceedings on the claim or dispute,(b) no decision has been made as to whether or not the report is to be admitted, and:(i) the report was the report nominated by the claimant or respondent as the report that the claimant or respondent concerned would introduce into evidence in proceedings on the claim, or(ii) the report was the sole report in the particular specialty concerned that was lodged in relation to the claim by the claimant or respondent, as the case may be,(c) the approved medical specialist calls for the production of the report under section 324 (1) (b) of the 1998 Act.(2) A forensic medical report is not to be disclosed to an approved medical specialist in connection with a claim or a work injury damages threshold dispute otherwise than in accordance with this clause.(3) Nothing in this clause permits more than one forensic medical report of the type referred to in clause 49 to be disclosed to an approved medical specialist on behalf of a party to proceedings.(4) In this clause:approved medical specialist has the same meaning as in section 319 of the 1998 Act.forensic medical report:(a) means a report from a specialist who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of a claim or dispute, and(b) includes a medical report provided by a medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act.
52 Restrictions on recovery of cost of medical reports
(1) A party to proceedings on a claim is not entitled to be paid for or recover the cost of a medical report in connection with the claim unless:(a) the report has been admitted into those proceedings on behalf of the party, or(b) the report has been disclosed to an approved medical specialist.(2) A party to a claim where no proceedings have been taken is not entitled to be paid for or recover the cost of a medical report in connection with the claim unless the report has been served on another party, and:(a) the report would be admissible in proceedings on behalf of the party, or(b) the report could be disclosed to an approved medical specialist.(3) In this clause:(a) a reference to a claim includes a reference to an initial notification of injury (as defined in Part 3 of Chapter 7 of the 1998 Act), and(b) a reference to proceedings on a claim includes a reference to proceedings in respect of the payment of provisional weekly payments of compensation under the 1998 Act.(4) In this clause:approved medical specialist has the same meaning as in section 319 of the 1998 Act.
53 Medical treatment not affected
This Part does not affect any entitlement of an injured worker to be paid for or recover the cost of obtaining medical treatment.
54 Reports of medical panels and referees not affected
This Part does not apply in respect of a medical report provided by an approved medical specialist under Part 7 of Chapter 7 (Medical assessment) of the 1998 Act in respect of the assessment of a new claim within the meaning of that Chapter.
Part 10 Insurance policies
55 Administration fees and late payment fees for exempt employers
(1) The amount of $175 is prescribed as the administration fee payable under section 155AA (5) of the 1987 Act.(2) The Nominal Insurer may serve a notice in writing on an employer to whom section 155AA (5) of the 1987 Act applies notifying the employer that the administration fee referred to in that subsection is due and payable.(3) The administration fee referred to in subclause (2) must be paid by the employer within one month of the service of the notice.(4) A late payment fee calculated at the prescribed rate (within the meaning of section 172 of the 1987 Act) applicable to a policy of insurance issued or renewed on the date that notice was served is payable if an administration fee is not paid within the one month period referred to in subclause (3).(5) The Authority may waive payment (either in full or in part) of an administration fee or late payment fee payable under section 155AA of the 1987 Act.(6) The Nominal Insurer is to pay any administration fees and late payment fees it has received under section 155AA of the 1987 Act into the Insurance Fund. Administration fees paid into the Insurance Fund are to be treated as premiums payable under policies of insurance.
56 Provisions of policies of insurance
(1) For the purposes of section 159 of the 1987 Act, a policy of insurance (except one to which subclause (2) applies):(a) must contain the provisions specified in Schedule 3, and(b) may contain any other provisions, but only if those provisions have been agreed on by the insurer and employer concerned and approved by the Authority.(2) A policy of insurance issued or renewed so as to take effect before 31 December 1995 must contain the provisions that were specified in Form 7 in the Workers Compensation (General) Regulation 1987 immediately before its repeal, except that:(a) the words “independently of this Act (being a liability under a law of New South Wales)” in the third paragraph of the Form are to be deleted and the words “independently of this Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another State, a Territory or the Commonwealth or a liability arising under the law of another country)” are to be inserted instead, and(b) such a policy may contain other provisions, but only if those provisions have been agreed on by the insurer and employer concerned and approved by the Authority.
57 Excess recoverable from employer: section 160
(1) A weekly compensation claim made in respect of a worker who receives an injury in the circumstances referred to in section 11 (Recess claims) of the 1987 Act is prescribed for the purposes of section 160 (8) of the 1987 Act.(2) Exempt employer policies (within the meaning of section 155AA of the 1987 Act) are exempt from section 160 of the 1987 Act.
58 Information to be provided for certificate of currency
(1) An employer who requests an insurer to provide a certificate of currency with respect to a policy of insurance must provide the insurer with a statement in a approved form that contains a reasonable estimate of the wages that will be payable during the current period of insurance to workers employed by the employer.(2) An insurer may refuse to issue the requested certificate of currency until the employer complies with this clause.
59 Certificate of currency—period of insurance
(1) For the purposes of the definition of certificate of currency in section 163A (1) of the 1987 Act, a period not exceeding 12 months is prescribed.(2) This clause applies only in relation to a certificate of currency issued on or after the commencement of this clause.
60 Liability for subcontractor premiums—exemption for farming operations
(1) Any work carried out before 1 July 2004 under a contract for the carrying out of work on a farm on which a farmer engages in a farming operation is exempt from the operation of section 175B of the 1987 Act if the farmer is the principal contractor and the work is an aspect of the work of the farming operation (and is not an aspect of the work of any other business undertaking of the farmer).(2) In this clause:farmer means a person who is engaged in a farming operation and includes a person who owns land cultivated under a share-farming agreement.farming operation means a farming (including dairy farming, poultry farming, bee farming and aquaculture), pastoral, horticultural or grazing operation.
61 Employers excluded from grouping provisions: section 175D (3)
The following employers are excluded from the operation of Division 2A (Grouping of employers for insurance purposes) of Part 7 of the 1987 Act:(a) an employer who is insured with a specialised insurer,(b) an employer who is insured where the policy of insurance relates only to private household domestic workers.
Part 11 Modification of provisions applying to self-insurers
62 Interpretation
(1) When one or more subsidiaries of the holder of a licence as a self-insurer under the 1987 Act is endorsed on the licence, each of those endorsed subsidiaries and the licence holder are group self-insurers for the purposes of this Part.(2) The holder of a licence as a group self-insurer may for the purposes of this Part, by notice in writing to the Authority from time to time, designate any one or more of the group self-insurers covered by the licence as designated insurer for some or all of the group self-insurers. The licence holder can designate itself as a designated insurer.(3) Except where otherwise expressly provided, this Part provides for the modification of provisions of Chapter 3 of the 1998 Act in their application to the following self-insurers:(a) a self-insurer who is a Government employer covered for the time being by the Government’s managed fund scheme,(b) a group self-insurer for whom there is a designated insurer.
63 References to “insurer”
(1) Sections 43, 44, 45, 47, 52 and 57 of the 1998 Act are to be read as if:(a) a reference to insurer were, in the case of a self-insurer who is a Government employer covered for the time being by the Government’s managed fund scheme, a reference to the Self Insurance Corporation, and(b) a reference to insurer were, in the case of a self-insurer for whom there is a designated insurer, a reference to that designated insurer, and(c) the Self Insurance Corporation were the insurer of each employer who is a Government employer covered for the time being by the Government’s managed fund scheme, and(d) the designated insurer for a group self-insurer were the insurer of the group self-insurer.(2) A reference in sections 50 and 58 of the 1998 Act to insurer is to be read as including a reference:(a) to the Self Insurance Corporation, when the insurer is a Government employer covered for the time being by the Government’s managed fund scheme, and(b) when the insurer is a group self-insurer for whom there is a designated insurer, to that designated insurer.
64 Modification of exceptions for self-insurers
The following modifications are to be made to the 1998 Act:(a) section 43 (3)—omit “This subsection does not apply to a self-insurer.”,(b) section 43 (4)—omit “(except when the insurer is a self-insurer)”,(c) section 43 (5)—omit “This subsection does not apply when the employer is a self-insurer.”,(d) omit section 44 (4),(e) section 45 (2)—omit “(except when the insurer is a self-insurer)”,(f) section 45 (5)—omit “This subsection does not apply when the insurer is a self-insurer.”,(g) omit section 46 (3).
65 Preparation of injury management plan
Section 45 (1) of the 1998 Act is replaced with the following subsection:(1) When it appears that a workplace injury is a significant injury, an injury management plan must be established for the injured worker by:(a) if the self-insurer who is or may be liable to pay compensation to the injured worker is a Government employer covered for the time being by the Government’s managed fund scheme—the Self Insurance Corporation, or(b) if the insurer who is or may be liable to pay compensation to the injured worker is a group self-insurer for whom there is a designated insurer—that designated insurer.
66 Self-insurer’s licence
(1) A reference in section 55 of the 1998 Act to insurer’s licence is, in the application of that section to a group self-insurer (whether or not a group self-insurer for whom there is a designated insurer), to be read as a reference to the licence as a self-insurer on which the group self-insurer is endorsed.(2) It is a condition of a licence as a self-insurer that the holder of the licence must ensure that any subsidiary of the holder endorsed on the licence complies with the subsidiary’s obligations under Chapter 3 of the 1998 Act.
Part 12 WorkCover Authority Fund
67 Definitions
In this Part:, excess surcharge factor, experience adjustment factor and dust diseases contribution have the same meanings respectively as they have in the insurance premiums order in force in respect of the relevant financial year.
68 Definition of “premium income” for purposes of insurers’ contributions
For the purposes of the contribution payable by an insurer under section 39 of the 1998 Act for a financial year, (as defined in section 4 (1) of the 1998 Act) does not include any part of such a premium that is attributable to the application of an excess surcharge factor or a dust diseases contribution in the calculation of the premium.
69 Definition of “deemed premium income” for purposes of self-insurers’ contributions
(1) The prescribed circumstances referred to in the definition of in section 37 of the 1998 Act are the circumstances in which the amount payable as premiums referred to in that definition is calculated in the manner fixed by the insurance premiums order in force in respect of the relevant financial year.(2) The amount defined as deemed premium income in section 37 of the 1998 Act in relation to the contribution payable by a self-insurer for any period during a financial year does not include:(a) any amount attributable to the application of any factor other than the basic tariff premium that would have been payable as referred to in that definition in respect of that period, and(b) any amount attributable to any GST that would have been payable in relation to the premiums on policies of insurance that the self-insurer would otherwise have been required to obtain under the 1987 Act had the self-insurer not been a self-insurer.(3) Subclause (2) does not apply to any financial year to which clause 85 applies.
70 Alternative contribution by self-insurers
(1) This clause applies to any financial year determined by the Authority and notified in the Gazette before the commencement of that financial year as a financial year to which this clause applies.(2) When this clause applies to a financial year, the amount defined as deemed premium income in section 37 of the 1998 Act in relation to the contribution payable by a self-insurer for any period during that financial year:(a) does not include any amount attributable to the application of an excess surcharge factor or a dust diseases contribution, and(b) includes any amount attributable to the application of the experience adjustment factor, but only if the self-insurer has been a self-insurer (or insured with an insurer) for at least 2 years immediately before the commencement of that period.
Part 13 Deemed employment
71 Ministers of religion
For the purposes of clause 17 of Schedule 1 to the 1998 Act, it is declared that persons within a class specified in Column 2 of Schedule 4 to this Regulation are ministers of religion of the religious body or organisation specified opposite the class in Column 1 of Schedule 4 and the employer of those persons is the person specified opposite the class in Column 3 of Schedule 4.Note—See also clause 18 of Schedule 1 to the 1998 Act which provides that if a policy of insurance covers a minister of religion, the minister of religion is taken to be a worker and the person insured under the policy is taken to be the minister’s employer.
Part 14 Insurers’ Guarantee Fund
72 Definitions
Expressions used in this Part have the same meanings as in Division 7 of Part 7 of the 1987 Act.
73 Financial years for contributions to Insurers’ Guarantee Fund
For the purposes of section 228 (1) of the 1987 Act, the financial year commencing 1 July 1989 and any subsequent financial year are prescribed.
74 Time etc for payment of insurer’s contribution
The contribution payable by an insurer under section 228 of the 1987 Act in respect of any financial year is payable:(a) except as provided by paragraph (b), in quarterly instalments (each being equal to one-fourth of the contribution payable) due on the last day of each quarter of the financial year, or(b) in such other instalments and within such other time as may be determined by the Authority and specified in a notice to the insurer.
75 Further contributions payable by insurers
(1) If the Authority has determined an amount under section 228 (1) of the 1987 Act in respect of a financial year, it may subsequently determine under that provision a further amount to be contributed to the Guarantee Fund in respect of that year, being an amount that it considers is necessary:(a) to satisfy, during that financial year, claims, judgments and awards arising from or relating to policies of insurance issued by insolvent insurers, and(b) to provide for the payment of any other amounts to be paid under Division 7 of Part 7 of the 1987 Act from the Guarantee Fund during that financial year.(2) Section 228 of the 1987 Act applies to and in respect of the payment of any such further contribution.
76 Determination of contributions and further contributions
(1) For the purpose of determining the amount of any contribution (or further contribution) to the Guarantee Fund, the Authority is entitled to rely on an estimate determined by it of the amount required to be contributed by insurers to the WorkCover Authority Fund.(2) If the Authority determines that any change in that estimate is appropriate, it is to re-determine the contributions (or further contributions) of insurers to the Guarantee Fund, and the relevant amounts become payable by, or repayable to, insurers.
Part 15 Penalty notice offences
77 Penalty notice offences
For the purposes of section 246 of the 1998 Act:(a) each of the following offences is declared to be a penalty notice offence:(i) an offence created by a provision of the 1987 Act specified in Column 1 of Part 1 of Schedule 5,(ii) an offence created by a provision of the 1998 Act specified in Column 1 of Part 2 of Schedule 5,(iii) an offence created by a provision of this Regulation specified in Column 1 of Part 3 of Schedule 5, and(b) the prescribed penalty for such an offence is the amount specified opposite it in Column 2 of Schedule 5, and(c) the following persons are declared to be authorised officers:(i) each officer of the Authority authorised by the Authority for the purposes of section 246 of the 1998 Act,(ii) each inspector appointed under the Work Health and Safety Act 2011,(iii) each officer of the Authority authorised by the Authority for the purposes of section 238 of the 1998 Act.cl 77: Am 2012 (480), Sch 1 [4].
Part 16 Marketing of work injury legal services and agent services
Division 1 Preliminary
Note—
Expressions used in this Part have the same meaning as in Division 8 of Part 2 of Chapter 4 of the 1998 Act. An agent is a person who acts, or holds himself or herself out as willing to act, as agent for a person for fee or reward in connection with a claim, but does not include a legal practitioner. Lawyer means a legal practitioner and, as provided below, includes solicitor corporations and incorporated legal practices.
Each of the following activities is considered to constitute acting as agent for a person in relation to a claim:
(a) advising the person with respect to the making of a claim,
(b) assisting the person to complete or prepare, or completing or preparing on behalf of the person, any form, correspondence or other document concerning a claim,
(c) making arrangements for any test or medical examination to determine the person’s entitlement to compensation,
(d) arranging referral of the person to a lawyer for the performance of legal work in connection with a claim.
A reference to a claim includes a reference to a prospective claim (whether or not the claim is ever actually made).
78 Definitions
In this Part:advertisement means any communication of information (whether by means of writing, or any still or moving visual image or message or audible message, or any combination of them) that advertises or otherwise promotes a product or service, whether or not that is its purpose or only purpose and whether or not that is its only effect.lawyer means a legal practitioner and includes the following:(a) a partnership of which a legal practitioner is a member (but only if the business of the partnership includes business of a kind ordinarily conducted by a legal practitioner),(b) a solicitor corporation,(c) an incorporated legal practice.publish means:(a) publish in a newspaper, magazine, journal, periodical, directory or other printed publication, or(b) disseminate by means of the exhibition or broadcast of a photograph, slide, film, video recording, audio recording or other recording of images or sound, either as a public exhibition or broadcast or as an exhibition or broadcast to persons attending a place for the purpose of receiving professional advice, treatment or assistance, or(c) broadcast by radio or television, or(d) display on an Internet website or otherwise publicly disseminate by means of the Internet, or(e) publicly exhibit in, on, over or under any building, vehicle or place or in the air in view of persons in or on any street or public place, or(f) display on any document (including a business card or letterhead) gratuitously sent or gratuitously delivered to any person or thrown or left on any premises or on any vehicle, or(g) display on any document provided to a person as a receipt or record in respect of a transaction or bet.work injury has the same meaning as in the 1998 Act.
Division 2 Advertising by lawyers and agents
79 Restriction on advertising work injury services
A lawyer or agent must not publish or cause or permit to be published an advertisement that promotes the availability or use of a lawyer or agent to provide legal services or agent services if the advertisement includes any reference to or depiction of any of the following:(a) work injury,(b) any circumstance in which work injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of work injury, or any connection to or association with work injury or a cause of work injury,(c) a work injury service (that is, any service provided by a lawyer or agent that relates to recovery of money, or any entitlement to recover money, in respect of work injury).Maximum penalty: 200 penalty units.Note—A contravention of this clause can also be a contravention of Part 2 of the Legal Profession Regulation 2005. A contravention of that Part by a lawyer constitutes professional misconduct.
80 Exception for advertisements about discrimination—community legal centres
This Division does not apply to the publication by or on behalf of a complying community legal centre (within the meaning of the Legal Profession Act 2004) of an advertisement that would constitute a contravention of clause 79 by reason only that it advertises or promotes services provided by the community legal centre in connection with discrimination.
81 Exception for advertising specialty
(1) This Division does not prevent the publication of an advertisement that advertises a lawyer or agent as being a specialist or offering specialist services, but only if the advertisement is published by means of:(a) an entry in a practitioner directory that states only the name and contact details of the lawyer or agent and any area of practice or specialty of the lawyer or agent, or(b) a sign displayed at a place of business of the lawyer or agent that states only the name and contact details of the lawyer or agent and any specialty of the lawyer or agent, or(c) an advertisement on an Internet website operated by the lawyer or agent the publication of which would be prevented under this Division solely because it refers to work injury or work injury services in a statement of specialty of the lawyer or agent.(2) In this clause:practitioner directory means a printed publication, directory or database that is published by a person in the ordinary course of the person’s business (and not by the lawyer or agent concerned or a partner, employee or member of the practice of the lawyer or agent).specialty of a lawyer is limited to a specialty in which the lawyer is accredited under an accreditation scheme conducted or approved by the Bar Council or Law Society.
82 Other exceptions
This Division does not prevent the publication of any advertisement:(a) to any person who is already a client of the lawyer or agent (and to no other person), or(b) to any person on the premises of a place of business of the lawyer or agent, but only if the advertisement cannot be seen from outside those premises, or(c) in accordance with any order by a court, or(d) pursuant to a disclosure made by a lawyer under Division 3 of Part 3.2 of the Legal Profession Act 2004, or(e) to the extent that it relates only to the provision of legal aid or other assistance by an agency of the Crown and is published by or on behalf of that agency, or(f) to the extent that it relates only to legal education and is published to members of the legal profession by a person in the ordinary course of the person’s business or functions as a provider of legal education, or(g) by an industrial organisation (within the meaning of the Industrial Relations Act 1996) if the advertisement (or so much of it as would otherwise contravene clause 79) relates only to the provision of advice or services by that organisation and states only the name and contact details of the industrial organisation along with a description of the services that it provides, or(h) that is required to be published by or under a written law of the State.
83 Responsibility for employees and others
For the purposes of this Division, evidence that a person who is an employee of a lawyer or agent, or a person otherwise exercising functions in the lawyer’s or agent’s practice, published or caused to be published an advertisement is evidence (in the absence of evidence to the contrary) that the lawyer or agent caused or permitted the publication of the advertisement.
84 Responsibility for advertisements published by others
(1) For the purposes of this Division, an advertisement is taken to have been published or caused to be published by a lawyer or agent if:(a) the advertisement advertises or otherwise promotes the availability or use of the lawyer or agent (either by name or by reference to a business name under which the lawyer or agent practises or carries on business) for the provision of legal services or agent services in connection with the recovery of money, or an entitlement to recover money, in respect of work injury, or(b) the lawyer or agent is a party to an agreement, understanding or other arrangement with the person who published the advertisement or caused it to be published that expressly or impliedly provides for the referral of persons to the lawyer or agent for the provision of legal services or agent services in connection with the recovery of money, or an entitlement to recover money, in respect of work injury, or(c) the lawyer or agent is a party to an agreement, understanding or other arrangement with the person who published the advertisement or caused it to be published that expressly or impliedly provides for the person to advertise on behalf of the lawyer or agent.(2) This clause does not apply to an advertisement if the lawyer or agent proves that the lawyer or agent took all reasonable steps to prevent the advertisement being published.
85 Double jeopardy
A person who has been convicted of an offence under Part 5 of the Legal Profession Regulation 2005 is not, if that offence would constitute an offence under this Division in respect of the publication of an advertisement, liable to be convicted of an offence under this Division in respect of that publication.
Division 3 Advertising by persons other than lawyers and agents
86 Application of Division
This Division does not apply to conduct of a lawyer or agent.
87 Definition of “work injury advertisement”
In this Division:work injury advertisement means an advertisement that includes any reference to or depiction of:(a) work injury, or(b) any circumstance in which work injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of work injury, or any connection to or association with work injury or a cause of work injury.
88 Restrictions on work injury advertisements
(1) A person must not publish or cause or permit to be published a work injury advertisement if the advertisement:(a) advertises or otherwise promotes the availability or use of a lawyer or agent (whether or not a particular lawyer or agent) to provide legal services or agent services, whether or not that is its purpose or only purpose and whether or not that is its only effect, or(b) includes any reference to or depiction of the recovery of money or a claim for money, or any entitlement to recover money or claim money, in respect of work injury.Maximum penalty: 200 penalty units.(2) A person must not publish or cause or permit to be published a work injury advertisement if the person is engaged in a practice involving, or is a party to an agreement, understanding or other arrangement that provides for, the referral of persons to one or more lawyers or agents for the provision of legal services or agent services in connection with the recovery of money, or an entitlement to recover money, in respect of work injury.Maximum penalty: 200 penalty units.(3) A person who is a member of a partnership or a director or officer of a body corporate must not expressly, tacitly or impliedly authorise or permit a contravention of subclause (1) or (2) by the partnership or body corporate or by an employee or agent of the partnership or body corporate on behalf of the partnership or body corporate.Maximum penalty: 200 penalty units.
89 Exception for advertisements about discrimination—community legal centres
This Division does not apply to the publication by or on behalf of a complying community legal centre (within the meaning of the Legal Profession Act 2004) of an advertisement that is a work injury advertisement by reason only that it advertises or promotes services provided by the community legal centre in connection with discrimination.
90 Exception for advertising specialty
(1) This Division does not prevent the publication of an advertisement that advertises a lawyer or agent as being a specialist or offering specialist services, but only if the advertisement is published by means of:(a) an entry in a practitioner directory that states only the name and contact details of the lawyer or agent and any area of practice or specialty of the lawyer or agent, or(b) a sign displayed at a place of business of the lawyer or agent that states only the name and contact details of the lawyer or agent and any specialty of the lawyer or agent, or(c) an advertisement on an Internet website operated on behalf of the lawyer or agent the publication of which would be prevented under this Division solely because it refers to work injury or legal or agent services in a statement of specialty of the lawyer or agent.(2) In this clause:practitioner directory means a printed publication, directory or database that is published by a person in the ordinary course of the person’s business (and not by the lawyer or agent concerned or a partner, employee or member of the practice of the lawyer or agent).specialty of a lawyer is limited to a specialty in which the lawyer is accredited under an accreditation scheme conducted or approved by the Bar Council or Law Society.
91 Other exceptions
This Division does not apply to the publication of an advertisement:(a) in accordance with any order by a court, or(b) to the extent that it relates only to the provision of legal aid or other assistance by an agency of the Crown and is published by or on behalf of that agency, or(c) to the extent that it relates only to legal education and is published to members of the legal profession by a person in the ordinary course of the person’s business or functions as a provider of legal education, or(d) by an industrial organisation (within the meaning of the Industrial Relations Act 1996) if the advertisement (or so much of it as would otherwise contravene clause 88) relates only to the provision of advice or services by that organisation and states only the name and contact details of the industrial organisation along with a description of the services that it provides, or(e) by a person in the ordinary course of the person’s business as an insurer or insurance agent or broker, to the extent only that it includes a reference to or depiction of the recovery of money under a policy of insurance, or(f) that is required to be published by or under a written law of the State.
92 Protection of publishers
A contravention of clause 88 by a person who publishes an advertisement in the ordinary course of the person’s business as a publisher does not constitute an offence under this Division.
93 Double jeopardy
A person who has been convicted of an offence under Part 5 of the Legal Profession Regulation 2005 is not, if that offence would constitute an offence under this Division in respect of the publication of an advertisement, liable to be convicted of an offence under this Division in respect of that publication.
Part 17 Costs
Division 1 Preliminary
94 Definitions
In this Part, and in Schedules 6 and 7:health service provider has the same meaning as in the Health Care Complaints Act 1993.insurer includes an employer.number of an item in a Table in Part 2 of Schedule 6 includes a letter.Note—Section 332 (2) of the 1998 Act provides that expressions used in Division 1 of Part 8 of Chapter 7 of that Act (and consequently expressions used in this Part) have the same meanings as they have in Part 3.2 of the Legal Profession Act 2004, except as provided by section 332 (Definitions) of the 1998 Act. Under section 302 of the Legal Profession Act 2004, costs includes fees, charges, disbursements, expenses and remuneration.
95 Sec 332 of 1998 Act: definition of “costs”
For the purposes of paragraph (f) of the definition of costs in section 332 (1) of the 1998 Act, the costs of providing clinical notes, records and reports by a health service provider are prescribed as costs within that definition.
96 Costs not regulated by this Part
Costs referred to in this Part do not include any of the following:(a) costs for legal services provided for an appeal under section 353 (Appeal against decision of Commission constituted by Presidential member) of the 1998 Act,(b) fees for investigators’ reports or for other material produced or obtained by investigators (such as witness statements or other evidence),(c) fees for accident reconstruction reports,(d) fees for accountants’ reports,(e) fees for reports from health service providers (except as provided in item 4 of Part 3 of Schedule 6),(f) fees for other professional reports relating to treatment or rehabilitation (for example, architects’ reports concerning house modifications),(g) fees for interpreter or translation services,(h) fees imposed by a court or the Commission,(i) travel costs and expenses of the claimant in the matter for attendance at medical examinations, a court or the Commission,(j) witness expenses at a court or the Commission.Note—Costs referred to in this clause are recoverable under, and may be regulated by, other legislation (including regulations under the Legal Profession Act 2004) or common law principles. Under section 339 of the 1998 Act, the WorkCover Authority may fix maximum fees for the provision of reports, or appearance before the Commission, by health service providers.
Division 2 Costs recoverable in compensation matters
Subdivision 1 Preliminary
97 Application of Division
This Division is made under section 337 of the 1998 Act and applies to the following costs payable on a party and party basis, on a practitioner or agent and client basis or on any other basis:(a) costs for legal services or agent services provided in or in relation to a claim for compensation, and(b) costs for matters that are not legal or agent services but are related to a claim for compensation.Note—Section 337 (3) and (4) of the 1998 Act provide that a legal practitioner or an agent is not entitled to be paid or recover for a legal service or agent service or other matter an amount that exceeds any maximum costs fixed for the service or matter by regulations under section 337.
Subdivision 2 Maximum costs recoverable by legal practitioners and agents in compensation matters
98 Maximum costs recoverable
(1) The costs that are recoverable, and the maximum costs that are recoverable, for:(a) legal services or agent services provided in or in relation to a claim for compensation, andare the costs set out in Schedule 6, except as otherwise provided by this Part.(b) matters that are not legal or agent services but are related to a claim for compensation,Note—The effect of this clause is that a legal practitioner or agent cannot recover any costs in relation to a claim for compensation unless those costs are set out in Schedule 6, except as otherwise provided in this Part.(2) If there is a change in the legal practitioner or agent retained by a party in or in relation to a claim made or to be made for compensation, the relevant costs are to be apportioned between the legal practitioners or agents concerned.(3) If there is a dispute as to such an apportionment, either legal practitioner or agent concerned (or the client) may refer the dispute to the Registrar for determination.(4) A legal practitioner or agent has the same right of appeal against a determination made under subclause (3) as the legal practitioner or agent would have under clause 135 if the determination were a determination made by the Registrar in relation to a bill of costs.Note—Division 3 of Part 3.2 of the Legal Profession Act 2004 requires barristers and solicitors, before providing any legal services to a client, to provide the client with a written disclosure of the basis of the costs (or an estimate of the likely costs) of legal services concerned.
99 Maximum costs involving medical or related treatment or certain fees for health service providers
In workers compensation matters, the costs that are recoverable, and the maximum costs that are recoverable, in respect of costs of a kind referred to in clause 96 or Part 3 of Schedule 6 are, if section 61 of the 1987 Act or section 339 of the 1998 Act applies in respect of costs of that kind, costs equal to the amount fixed by or by order under the section concerned.
100 Costs not recoverable in certain circumstances (workers compensation matters)
(1) This clause applies to workers compensation matters.(2) No amount is recoverable for costs (including disbursements) that are referred to in neither clause 96 nor Schedule 6.(3) No amount is recoverable for costs for any service or matter unless the claim or dispute (or the relevant aspect of the claim or dispute) to which the service or matter relates is resolved or otherwise dealt with in accordance with Schedule 6.(4) Despite subclause (3), if an appeal is lodged in respect of a claim or dispute, no amount is recoverable for costs for any service or matter (or the relevant aspect of the claim or dispute) unless the appeal is determined, is withdrawn or lapses.
Division 3 Costs recoverable in work injury damages matters
Subdivision 1 Maximum costs recoverable by legal practitioners in work injury damages matters
101 Application of Division
This Division is made under section 337 of the 1998 Act and applies to the following costs payable on a party and party basis, on a solicitor and client basis or on any other basis:(a) costs for legal services or agent services provided in or in relation to a claim for work injury damages, and(b) costs for matters that are not legal or agent services but are related to a claim for work injury damages.Note—Section 337 (3) of the 1998 Act provides that a legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by regulations under section 337.
102 Fixing of maximum costs recoverable by legal practitioners
(1) The maximum costs for:(a) legal services provided in or in relation to a claim for work injury damages, andare the costs set out in Schedule 7, except as otherwise provided by this Part.(b) matters that are not legal services but are related to a claim for work injury damages,Note—The effect of this clause is that a legal practitioner or agent cannot recover any costs in relation to a claim for work injury damages unless those costs are set out in Schedule 7, except as otherwise provided in this Part.(2) If there is a change in the legal practitioner retained by a party in or in relation to a claim for work injury damages, the relevant costs are to be apportioned between the legal practitioners concerned.(3) If there is a dispute as to such an apportionment, either legal practitioner concerned (or the client concerned) may refer the dispute to the Commission for determination.(4) A legal practitioner has the same right of appeal against a determination made under subclause (3) as the practitioner would have under clause 135 if the determination were a determination made by the Registrar in relation to a bill of costs.Note—Division 3 of Part 3.2 of the Legal Profession Act 2004 requires barristers and solicitors, before providing any legal services to a client, to provide the client with a written disclosure of the basis of the costs (or an estimate of the likely costs) of legal services concerned.
103 Contracting out—practitioner/client costs
(1) This clause applies in respect of costs in or in relation to a claim for work injury damages if a legal practitioner:(a) makes a disclosure under Division 3 of Part 3.2 of the Legal Profession Act 2004 (sections 312 and 317 excepted) to a party to the matter with respect to the costs, and(b) enters into a costs agreement (other than a conditional costs agreement, within the meaning of that Division of that Part, that provides for the payment of a premium of more than 10% of the costs otherwise payable under the agreement on the successful outcome of the matter concerned) with that party as to those costs in accordance with Division 5 of that Part, and(c) before entering into the costs agreement, advises the party (in a separate written document) that, even if costs are awarded in favour of the party, the party will be liable to pay such amount of the costs provided for in the costs agreement as exceeds the amount that would be payable under the 1998 Act in the absence of a costs agreement.(2) Schedule 7 does not apply to the costs concerned to the extent that they are payable on a practitioner and client basis.
Subdivision 2 Restriction on awarding of costs
Note—
This Subdivision is made under section 346 of the 1998 Act, which provides that a party is not entitled to an award of costs to which that section applies (being costs payable by a party in or in relation to a claim for work injury damages, including court proceedings for work injury damages) except as prescribed by the regulations or by the rules of the court concerned.
In the event of any inconsistency between the provisions of this Regulation and rules of court, the provisions of this Regulation prevail to the extent of the inconsistency: section 346 (4).
104 Costs where claimant no less successful than claimant’s final offer
If a claimant obtains an order or judgment on a claim that is no less favourable to the claimant than the terms of the claimant’s final offer of settlement in mediation under the 1998 Act as certified by the mediator under section 318B of the 1998 Act, the court is to order the insurer to pay the claimant’s costs on the claim assessed on a party and party basis.
105 Costs where claimant less successful than insurer’s final offer or insurer found not liable
(1) If a claimant obtains an order or judgment on a claim that is less favourable to the claimant than the terms of the insurer’s final offer of settlement in mediation under the 1998 Act as certified by the mediator under section 318B of the 1998 Act, the court is to order the claimant to pay the insurer’s costs on the claim assessed on a party and party basis.(2) If a claimant does not obtain an order or judgment on a claim (that is, if the court finds the insurer has no liability for the claim), the court is to order the claimant to pay the insurer’s costs on the claim assessed on a party and party basis.
106 Costs in other cases
Except as provided by this Subdivision, the parties to court proceedings for work injury damages are to bear their own costs.
107 Deemed offer where insurer denies liability and no mediation occurs or mediation fails
(1) If:(a) the insurer wholly denies liability, and(b) no mediation occurs, andcosts are to be awarded in accordance with this Subdivision as if:(c) the claimant obtains an order or judgment on the claim,(d) the insurer had made a final offer of settlement at mediation of $0, and(e) the claimant had made a final offer of settlement at mediation of:(i) in the case where the Commission issued a certificate verifying the matters referred to in paragraphs (a) and (b) and the claimant, within one month of the issue of that certificate, made a subsequent offer of settlement to the insurer—the amount of damages specified in that subsequent offer of settlement, or(ii) in any other case—the amount of damages specified in the pre-filing statement served under section 315 of the 1998 Act.(2) If:(a) the insurer wholly denies liability, and(b) the matter is referred to mediation, but the matter is not resolved by settlement at the mediation, andcosts are to be awarded in accordance with this Subdivision as if:(c) the claimant obtains an order or judgment on the claim,(d) the insurer had made a final offer of settlement at mediation of $0, and(e) the claimant had made a final offer of settlement at mediation of:(i) in the case where the claimant, within one month of the conclusion of that mediation, made a subsequent offer of settlement to the insurer—the amount of damages specified in that subsequent offer of settlement, or(ii) in any other case—the amount of the claimant’s final offer of settlement in mediation under the 1998 Act as certified by the mediator under section 318B of the 1998 Act.Note—Persons claiming work injury damages who wish to be awarded costs on a party and party basis should apply to the Workers Compensation Commission for the mediation of the dispute before the matter goes to court. The availability of costs on a party and party basis is subject to the provisions of clause 104 and this clause.
108 Subdivision does not apply to ancillary proceedings
This Subdivision does not apply to costs payable in or in relation to proceedings that are ancillary to proceedings on a claim for work injury damages, and a court is to award costs in such ancillary proceedings in accordance with the rules of the court.
109 Multiple parties
Where 2 or more defendants are alleged to be jointly or jointly and severally liable to the claimant and rights of contribution or indemnity appear to exist between the defendants, this Subdivision does not apply to an offer of settlement unless:(a) in the case of an offer made by the claimant—the offer is made to all the defendants and is an offer to settle the claim against all of them, and(b) in the case of an offer made to the claimant:(i) the offer is to settle the claim against all the defendants concerned, and(ii) where the offer is made by 2 or more defendants—by the terms of the offer the defendants who made the offer are jointly or jointly and severally liable to the claimant for the whole amount of the offer.
Division 4 Assessment of costs
Subdivision 1 Preliminary
110 Definitions
In this Division:agent bill of costs means a bill of costs for providing agent services within the meaning of section 337 of the 1998 Act.bill of costs means a legal bill of costs or an agent bill of costs.client of a legal practitioner or agent means a person to whom the practitioner or agent has provided legal services or agent services in respect of any workers compensation matter or work injury damages matter.legal bill of costs means a bill of costs for providing legal services within the meaning of Part 3.2 of the Legal Profession Act 2004.
111 Application by client for assessment of practitioner/client or agent/client costs
(1) A client who is given a bill of costs may apply to the Registrar for an assessment of the whole of, or any part of, so much of those costs as are payable on a practitioner and client basis or an agent and client basis.(2) An application relating to a bill of costs may be made even if the costs have been wholly or partly paid.(3) If any costs have been paid without a bill of costs, the client may nevertheless apply for an assessment. For that purpose the request for payment by the legal practitioner or agent is taken to be the bill of costs.Note—Section 343 (1) of the 1998 Act provides that the legal representative or agent of a person in respect of a claim for compensation made or to be made by the person is not entitled to recover from the person any costs in respect of the claim unless those costs are awarded by the Commission.
112 Application by instructing practitioner or agent for assessment of practitioner/client or agent/client costs
(1) A legal practitioner or agent who:(a) retains another legal practitioner or agent to act on behalf of the client, andmay apply to the Registrar for an assessment of the whole, or any part of, so much of those costs as are payable on a practitioner and client basis or an agent and client basis.(b) is given a bill of costs in accordance with this Part by the other legal practitioner or agent,(2) An application may not be made if there is a costs agreement between the client and the other legal practitioner or agent.(3) An application is to be made within 30 days after the bill of costs is given and may be made even if the costs have been wholly or partly paid.
113 Application by billing practitioner or agent for assessment of practitioner/client or agent/client costs
(1) A legal practitioner or agent who has given a bill of costs may apply to the Registrar for an assessment of the whole of, or any part of, so much of those costs as are payable on a practitioner and client basis or an agent and client basis.(2) An application may not be made unless:(a) the bill of costs includes the following particulars:(i) a description of the legal services or agent services provided,(ii) if relevant, an identification of each general resolution type referred to in Table 2 in Part 2 of Schedule 6 by reference to the item number and column number in Table 2 of the general resolution type that was attained,(iii) if relevant, an identification of each special resolution type referred to in Table 3 in Part 2 of Schedule 6 by reference to the item number and column number in Table 3 of the special resolution type that was attained,(iv) if relevant, an identification of the phase of each general resolution type referred to in Table 1 in Part 2 of Schedule 6 by reference to the item number and column number in Table 1 of the general resolution type that was attained,(v) if relevant, an identification of each additional legal service or other factor referred to in Table 4 in Part 2 of Schedule 6 by reference to the item number and (where relevant) column number in Table 4 of the legal service or factor,(vi) an identification of each disbursement incurred by reference to a paragraph number in clause 96 or an item number in Part 3 of Schedule 6,(vii) an identification of each activity, event or stage specified in Schedule 7, by reference to the item number of the activity, event or stage, that was carried out,(viii) the amount sought, and(b) at least 30 days have passed since the bill of costs was given or an application has been made under this Division by another person in respect of the bill of costs.
114 Application for assessment of party/party costs—compensation matters
(1) A person who is entitled to receive or who has received costs, in or in connection with a workers compensation matter, as a result of:(a) an order for the payment of an unspecified amount of costs made by a court or the Commission, ormay apply to the Registrar for an assessment of the whole of, or any part of, those costs.(b) an agreement, evidenced in writing by the party liable to pay the costs, for the payment of an unspecified amount of costs,(2) A person who has paid or is liable to pay costs, in or in connection with a workers compensation matter, as a result of an order or agreement referred to in subclause (1) may apply to the Registrar for an assessment of the whole of, or any part of, those costs after the period of 60 days after the making of the order or agreement.(3) A court or the Commission may direct the Registrar to assess costs payable as a result of an order made by the court or the Commission. Any such direction is taken to be an application for assessment duly made under this Division.
115 Application for assessment of party/party costs—work injury damages matters
(1) A person who has paid or is liable to pay, or who is entitled to receive or who has received, costs, in or in connection with a work injury damages matter, as a result of an order for the payment of an unspecified amount of costs made by a court or the Commission may apply to the Registrar for an assessment of the whole of, or any part of, those costs.(2) A court or the Commission may direct the Registrar to assess costs payable as a result of an order made by the court or the Commission. Any such direction is taken to be an application for assessment duly made under this Division.
116 How is an application to be made?
(1) An application for assessment is to be made in the form approved by the Commission and is, subject to subclause (4), to be accompanied by the fee determined by the Commission from time to time.(2) The application must authorise the Registrar to have access to, and to inspect, all documents of the applicant that are held by the applicant, or by any legal practitioner or agent concerned, in respect of the matter to which the application relates.(3) The Registrar may waive or postpone payment of the fee either wholly or in part if satisfied that the applicant is in such circumstances that payment of the fee would result in serious hardship to the applicant or his or her dependants.(4) The Registrar may refund the fee paid under this clause either wholly or in part if satisfied that it is appropriate because the application is not proceeded with.
117 Persons to be notified of application
The applicant for assessment is to cause a copy of the application for assessment to be given to:(a) each other party and each legal practitioner, agent and other client involved, andwithin 7 days after the application is accepted by the Registrar for registration.(b) any other persons to whom the Registrar requires the applicant to give notice of the application,
118 Registrar may require documents or further particulars
(1) The Registrar may, by notice in writing, require a person (including the applicant, the legal practitioner or agent concerned, or any other legal practitioner, agent or client) to produce any relevant documents of or held by the person in respect of the matter.(2) The Registrar may, by any such notice, require further particulars to be furnished by the applicant, legal practitioner, agent, client or other person as to instructions given to, or work done by, the legal practitioner or agent or any other legal practitioner or agent in respect of the matter and as to the basis on which costs were ascertained.(3) The Registrar may require any such particulars to be verified by statutory declaration.(4) A notice under this clause is to specify the period within which the notice is to be complied with.(5) If a person fails, without reasonable excuse, to comply with a notice under this clause, the Registrar may decline to deal with the application or may continue to deal with the application on the basis of the information provided.(6) A legal practitioner who fails, without reasonable excuse, to comply with a notice under this clause is guilty of professional misconduct.
119 Consideration of applications
(1) The Registrar must not determine an application for assessment unless the Registrar:(a) has given both the applicant and any legal practitioner, agent, client or other person concerned a reasonable opportunity to make written submissions to the Registrar in relation to the application, and(b) has given due consideration to any submissions so made.(2) In considering an application, the Registrar is not bound by rules of evidence and may inform himself or herself on any matter in such manner as he or she thinks fit.(3) In the case of a legal practitioner, for the purposes of determining whether an application for assessment may be or is required to be made, or for the purpose of exercising any other function, the Registrar may determine any of the following:(a) whether or not disclosure has been made in accordance with Division 3 of Part 3.2 of the Legal Profession Act 2004 and whether or not it was reasonably practicable to disclose any matter required to be disclosed under that Division,(b) whether a costs agreement exists, and its terms.
120 Assessment to give effect to maximum costs, 1998 Act and orders and rules of the Commission or court
An assessment of costs is to be made in accordance with, and so as to give effect to, orders of the Commission or a court, the Rules of the Commission or rules of court, Part 8 of Chapter 7 of the 1998 Act, this Part, and Schedules 6 and 7.
Subdivision 2 Assessment of bills of costs between practitioner or agent and client
121 Assessment of bills generally
(1) When considering an application relating to a bill of costs, the Registrar must consider:(a) whether or not it was reasonable to carry out the work to which the costs relate, and(b) whether or not the work was carried out in a reasonable manner, and(c) the fairness and reasonableness of the amount of the costs in relation to that work.(2) The Registrar is to determine the application by confirming the bill of costs or, if the Registrar is satisfied that the disputed costs are unfair or unreasonable, by substituting for the amount of the costs an amount that, in his or her opinion, is a fair and reasonable amount.(3) Any amount substituted for the amount of the costs may include an allowance for any fee paid or payable for the application by the applicant.(4) If a legal practitioner is liable under section 369 (3) of the Legal Profession Act 2004 to pay the costs of the costs assessment (including the costs of the Registrar), the Registrar is to determine the amount of those costs. The costs incurred by the client are to be deducted from the amount payable under the bill of costs and the costs of the Registrar are to be paid to the Commission.(5) The Registrar may not determine that any part of a bill of costs that is not the subject of an application is unfair or unreasonable.Note—Clause 120 requires an assessment of costs to give effect to the maximum costs set out in Schedules 6 and 7, as well as to other matters.Section 337 (3) and (4) of the 1998 Act provide that a legal practitioner or an agent is not entitled to be paid or recover for a legal service or agent service or other matter an amount that exceeds any maximum costs fixed for the service or matter by regulations under section 337.Section 343 (1) of the 1998 Act provides that the legal representative or agent of a person in respect of a claim for compensation made or to be made by the person is not entitled to recover from the person any costs in respect of the claim unless those costs are awarded by the Commission.
122 Additional matters to be considered in assessing bills of costs
In assessing what is a fair and reasonable amount of costs, the Registrar may have regard to any or all of the following matters:(a) whether the legal practitioner or agent complied with any relevant regulation, barristers rule, solicitors rule or joint rule,(b) in the case of a legal practitioner—whether the legal practitioner disclosed the basis of the costs or an estimate of the costs under Division 3 of Part 3.2 of the Legal Profession Act 2004 and any disclosures made,(c) any relevant costs agreement (subject to clause 123),(d) the skill, labour and responsibility displayed on the part of the legal practitioner or agent responsible for the matter,(e) the instructions and whether the work done was within the scope of the instructions,(f) the complexity, novelty or difficulty of the matter,(g) the quality of the work done,(h) the place where and circumstances in which the legal services were provided,(i) the time within which the work was required to be done.
123 Costs agreements not subject to assessment
(1) The Registrar is to decline to assess a bill of costs if:(a) the disputed costs are subject to a costs agreement that complies with Division 5 of Part 3.2 of the Legal Profession Act 2004, and(b) the costs agreement specifies the amount of the costs or the dispute relates only to the rate specified in the agreement for calculating the costs.(2) If the dispute relates to any other matter, costs are to be assessed on the basis of that specified rate despite clause 121. The Registrar is bound by a provision for the payment of a premium that is not determined to be unjust under clause 124.(3) This clause does not apply to any provision of a costs agreement that the Registrar determines to be unjust under clause 124.(4) This clause does not apply to a costs agreement applicable to the costs of legal services if a legal practitioner failed to make a disclosure in accordance with Division 3 of Part 3.2 of the Legal Profession Act 2004 of the matters required to be disclosed by section 309 of that Act in relation to those costs.
124 Unjust costs agreements
(1) The Registrar may determine whether a term of a particular costs agreement entered into by a legal practitioner and a client is unjust in the circumstances relating to it at the time it was made.(2) For that purpose, the Registrar is to have regard to the public interest and to all the circumstances of the case and may have regard to the matters specified in section 328 of the Legal Profession Act 2004.(3) For the purposes of this clause, a person is taken to have represented another person if the person represented the other person, or assisted the other person to a significant degree, in the negotiations process up to, or at, the time the agreement was made.(4) In determining whether a provision of the agreement is unjust, the Registrar is not to have regard to any injustice arising from circumstances that were not reasonably foreseeable when the agreement was made.
125 Interest on amount outstanding
(1) The Registrar may, in an assessment, determine that interest is not payable on the amount of costs assessed or on any part of that amount and determine the rate of interest (not exceeding the rate referred to in section 321 (4) of the Legal Profession Act 2004).(2) This clause applies despite any costs agreement or section 321 of the Legal Profession Act 2004.(3) This clause does not authorise the giving of interest on interest.(4) This clause does not apply to or in respect of the assessment of costs referred to in Subdivision 3 (party/party costs).
Subdivision 3 Assessment of party/party costs
126 Assessment of costs—costs ordered by court or Commission or subject of agreement
(1) When dealing with an application relating to costs payable as a result of an order made by a court or the Commission or as a result of an agreement referred to in clause 114 (1) (b), the Registrar must consider:(a) whether or not it was reasonable to carry out the work to which the costs relate, and(b) what is a fair and reasonable amount of costs for the work concerned.(2) The Registrar is to determine the costs payable as a result of the order or agreement by assessing the amount of the costs that, in his or her opinion, is a fair and reasonable amount.(3) If a court or the Commission has ordered that costs are to be assessed on an indemnity basis, the Registrar must assess the costs on that basis, having regard to any relevant rules of the court or Commission.(4) The costs assessed are to include the costs of the assessment (including the costs of the parties to the assessment, and the Registrar). The Registrar may determine by whom and to what extent the costs of the assessment are to be paid.(5) The costs of the Registrar are to be paid to the Commission.Note—Subdivision 2 of Division 3 of this Part limits the circumstances in which costs may be awarded on a party/party basis in relation to a claim for work injury damages.Clause 120 requires an assessment of costs to give effect to the maximum costs set out in Schedules 6 and 7, as well as to other matters.
127 Additional matters to be considered by Registrar in assessing costs ordered by court or Commission
In assessing what is a fair and reasonable amount of costs, the Registrar may have regard to any or all of the following matters:(a) the skill, labour and responsibility displayed on the part of the legal practitioner or agent responsible for the matter,(b) the complexity, novelty or difficulty of the matter,(c) the quality of the work done and whether the level of expertise was appropriate to the nature of the work done,(d) the place where and circumstances in which the legal services were provided,(e) the time within which the work was required to be done,(f) the outcome of the matter.
128 Effect of costs agreements in assessments of party/party costs
(1) The Registrar may obtain a copy of, and may have regard to, a costs agreement.(2) However, the Registrar must not apply the terms of a costs agreement for the purposes of determining appropriate fair and reasonable costs when assessing costs payable as a result of an order by a court or the Commission.
129 Court or Commission may specify amount etc
This Division does not limit any power of a court or the Commission to determine in any particular case the amount of costs payable or that the amount of the costs is to be determined on an indemnity basis.
Subdivision 4 Enforcement of assessment
130 Certificate as to determination
(1) On making a determination, the Registrar is to issue to each party a certificate that sets out the determination.(2) The Registrar may issue more than one certificate in relation to an application for costs assessment. Such certificates may be issued at the same time or at different stages of the assessment process.(3) In the case of an amount of costs that has been paid, the amount (if any) by which the amount paid exceeds the amount specified in any such certificate may be recovered as a debt in a court of competent jurisdiction.(4) In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed.(5) For this purpose, the amount of unpaid costs does not include the costs incurred by the Registrar in the course of a costs assessment.(6) To avoid any doubt, this clause applies to or in respect of both the assessment of costs referred to in Subdivision 2 of this Division (practitioner/client costs) and the assessment of costs referred to in Subdivision 3 of this Division (party/party costs).(7) If the costs of the Registrar are payable by a party to the assessment (as referred to in clause 132), the Registrar may refuse to issue a certificate relating to his or her determination under this clause until the costs of the Registrar have been paid.(8) Subclause (7) does not apply in respect of a certificate issued before the completion of the assessment process under subclause (2).
131 Reasons for determination
The Registrar must ensure that a certificate issued under clause 130 that sets out his or her determination is accompanied by:(a) a statement of the reasons for the Registrar’s determination, and(b) the amount of costs the Registrar determines is fair and reasonable, and(c) if the Registrar declines to assess a bill of costs under clause 123—the basis for doing so, and(d) if the Registrar determines that a term of a costs agreement is unjust—the basis for doing so, and(e) a statement of any determination under clause 125 that interest is not payable on the amount of costs assessed or, if payable, of the rate of interest payable.
132 Recovery of costs of costs assessment
(1) This clause applies when the costs of the Registrar are payable by a party to the assessment (under section 369 (3) of the Legal Profession Act 2004 or clause 121 or 126 (5)).(2) On making a determination, the Registrar may issue to each party a certificate that sets out the costs incurred by the Registrar in the course of the costs assessment.(3) The certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs.(4) The Registrar may take action to recover the costs of the Registrar.
133 Correction of error in determination
(1) At any time after making a determination, the Registrar may, for the purpose of correcting an inadvertent error in the determination:(a) make a new determination in substitution for the previous determination, and(b) issue a certificate under clause 130 that sets out the new determination.(2) Such a certificate replaces any certificate setting out the previous determination of the Registrar that has already been issued by the Registrar, and any judgment that is taken to have been effected by the filing of that previously issued certificate is varied accordingly.
134 Determination to be final
The Registrar’s determination of an application is binding on all parties to the application and no appeal or other review lies in respect of the determination, except as provided by this Division.
Subdivision 5 Appeals
135 Appeal against decision of Registrar as to matter of law
(1) A party to an application who is dissatisfied with a decision of the Registrar as to a matter of law arising in the proceedings to determine the application may, in accordance with the Rules of the Commission, appeal to the Commission constituted by a Presidential member against the decision.(2) The appeal is to be in the form approved by the Commission and be accompanied by the fee approved by the Commission from time to time.(3) After deciding the question the subject of the appeal, the Commission constituted by a Presidential member may, unless it affirms the Registrar’s decision:(a) make such determination in relation to the application as, in its opinion, should have been made by the Registrar, or(b) remit its decision on the question to the Registrar and order the Registrar to re-determine the application.(4) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.(5) Subclause (1) does not apply to any decision of the Registrar arising in proceedings on an application in respect of the assessment of costs under Schedule 6 as in force at any time before, on or after 1 November 2006, unless:(a) an appeal against the decision has been instituted in accordance with this clause before that date, or(b) the decision is made in or in connection with the reference of a dispute to the Registrar under clause 98 (3).
136 Effect of appeal on application
(1) If a party to an application has appealed against a determination or decision of the Registrar, either the Registrar or the Commission constituted by a Presidential member may suspend, until the appeal is determined, the operation of the determination or decision.(2) The Registrar or the Commission may end a suspension made by the Registrar. The court or the Commission may end a suspension made by the court or Commission.
Subdivision 6 Miscellaneous
137 Liability of legal practitioner or agent for costs in certain cases
(1) The Registrar may act as set out in subclause (2) if it appears to the Registrar that costs have been incurred improperly or without reasonable cause, or have been wasted by undue delay or by any other misconduct or default.(2) The Registrar may in the determination:(a) disallow the costs as between the legal practitioner or agent and the practitioner’s or agent’s client, and(b) direct the legal practitioner or agent to repay to the client costs that the client has been ordered by a court or the Commission to pay to any other party, and(c) direct the legal practitioner or agent to indemnify any party other than the client against costs payable by the party indemnified.(3) Before taking action under this clause, the Registrar must give notice of the proposed action to the legal practitioner or agent and the client and give them a reasonable opportunity to make written submissions in relation to the proposed action.(4) The Registrar must give due consideration to any submissions so made.
138 Referral of misconduct to Legal Services Commissioner
(1) If the Registrar considers that any conduct of a legal practitioner or agent involves the deliberate charging of grossly excessive amounts of costs or deliberate misrepresentations as to costs, the Registrar must refer the matter to the Legal Services Commissioner appointed under the Legal Profession Act 2004.(2) For the purposes of the Legal Profession Act 2004, the deliberate charging of grossly excessive amounts of costs and deliberate misrepresentations as to costs are each declared to be professional misconduct.(3) The Registrar may refer any failure by a legal practitioner to comply with a notice issued under clause 118, or with any other provision of this Division, to the Legal Services Commissioner.
Division 5 Goods and services tax
139 GST may be added to costs
(1) Despite the other provisions of this Part, a cost fixed by Division 2 (Costs recoverable in compensation matters) or Division 3 (Costs recoverable in work injury damages matters) may be increased by the amount of any GST payable in respect of the service to which the cost relates, and the cost as so increased is taken to be the cost fixed by this Part.(2) This clause does not permit a legal practitioner or agent to charge or recover, in respect of GST payable in respect of a service, an amount that is greater than:(a) 10% of the maximum amount payable under this Part to the legal practitioner or agent in respect of the service apart from this clause, orwhichever is the lesser.(b) the amount permitted under the New Tax System Price Exploitation law,(3) In this clause:GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth.New Tax System Price Exploitation law means:(a) the New Tax System Price Exploitation Code, as applied as a law of New South Wales by the Price Exploitation Code (New South Wales) Act 1999, or(b) Part VB of the Trade Practices Act 1974 of the Commonwealth.
Division 6 Miscellaneous
140 Modifications to Legal Profession Act 2004 relating to assessment of costs
A reference in section 309 (Disclosure of costs to clients) or 317 (Effect of failure to disclose) to assessment of costs under Division 3 of Part 3.2 of the Legal Profession Act 2004 is to be read as including, as an alternative to assessment under that Division, assessment of costs under Division 4 of Part 8 of Chapter 7 of the 1998 Act.
141 Special provision for matters involving coal miners
This Part does not apply to legal services or agent services provided in any workers compensation matter involving a claim for compensation or work injury damages by a coal miner, and regulations made under Division 6 (Costs fixed by regulation) of Part 3.2 of the Legal Profession Act 2004 continue to apply to legal services provided in such a matter.
142 Bill of costs to be in approved form
In workers compensation matters, a bill of costs (as defined by clause 110):(a) must, if there is a approved form for the purposes of this clause, be given in or to the effect of the approved form, and(b) must include relevant particulars of the kind referred to in clause 113 (2) (a) even if the bill is not one to which clause 113 applies.
143 Costs orders in respect of certain matters
The Registrar may, subject to Schedule 6, make a costs order in connection with any of the following:(a) an application for or the giving of an interim payment direction under Division 2 (Disputes concerning weekly payments or medical expenses) of Part 5 of Chapter 7 of the 1998 Act,(b) the determination of a dispute under Division 2A (Disputes concerning past weekly payments) of that Part,(c) the making of a recommendation under Division 3 (Disputes about non-compliance with Chapter 3) of that Part.
Part 18 Insurance premiums
Division 1 Preliminary
144 Definitions
In this Part:claim means a claim made by a worker against an employer to which a policy relates.cost of claims means:(a) in relation to the calculation of a premium for the issue or renewal of an employer’s policy (other than a retro-paid loss premium policy):(i) except as provided by paragraph (ii), the cost of claims (within the meaning of Division 4) for an injury year for the employer, being that cost as at the commencement of the period of insurance to which the premium relates, or(ii) after that period of insurance has expired, the cost of claims (within the meaning of that Division) for an injury year for the employer, being that cost as at the expiration of that period, and(b) in relation to the calculation of a premium for the issue or renewal of an employer’s policy (being a retro-paid loss premium policy), the cost of claims for the employer for the period of insurance concerned.decreasing adjustment has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth.employer includes a person who proposes to become an employer.GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth.input tax credit entitlement, in relation to an employer, means the amount of input tax credit that may be claimed by the employer in accordance with the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth in respect of the issue or renewal of a policy of insurance expressed as a percentage of the GST payable by the employer in respect of the issue or renewal of that policy.insurer means a licensed insurer, or a former licensed insurer, within the meaning of the 1987 Act.period of insurance, in relation to a policy, means a period for which an insurer assumes risk under the policy, being a period which commences on the first day on which the policy is in force after having been issued or renewed.policy or policy of insurance means a policy of insurance within the meaning of the 1987 Act.means a policy to which the optional alternative method of premium calculation (within the meaning of section 168A of the 1987 Act) applies.wages means wages as defined in section 174 (9) of the 1987 Act.
145 Meaning of “injury year”
In this Part, a reference to an injury year, when made in relation to the calculation of a premium for the issue or renewal of a policy, is a reference to any of the successive periods of 12 consecutive months occurring before the commencement of the period of insurance for which the premium is or is to be calculated.
146 Non wages-based calculation of premium
If the manner of calculation of the premium payable for a policy of insurance is not based on the wages payable to workers:(a) a reference in this Part to wages is to be read as a reference to that other basis of calculation of the premium, and(b) the form of any notice or declaration under this Part is to be appropriately modified having regard to the manner of calculation of the premium.
Division 2 Declaration of wages
147 Employer to supply insurer with return relating to wages—standard policies
(1) An employer must, as soon as practicable (but not later than 2 months) after:(a) making an application to an insurer for the issue of a policy, orsupply the insurer concerned with a notice in the approved form, duly completed, which contains a reasonable estimate of the wages that will be payable by the employer during the relevant period of insurance to workers employed by the employer.(b) the renewal of a policy,(2) An employer must, not later than 2 months after the end of the relevant period of insurance relating to a policy, supply the insurer who issued or renewed the policy with a notice in the approved form, duly completed, which contains a full and correct declaration by the employer of the wages that were actually paid by the employer during that period of insurance to workers employed by the employer.(3) This clause does not apply in relation to a retro-paid loss premium policy.
148 Employer to supply insurer with return relating to wages—retro-paid loss premium policies
(1) This clause applies in relation to a retro-paid loss premium policy.(2) An employer must, at least 2 months before the commencement of a period of insurance, supply the insurer concerned with a notice in the approved form, duly completed, which contains a reasonable estimate of the wages that will be payable by the employer during the period of insurance to workers employed by the employer.(3) An employer must, at the request of an insurer who issued a policy at any time during the period of insurance of the policy, supply the insurer with a notice in the approved form, duly completed, which contains a full and correct declaration by the employer of the wages that have actually been paid by the employer during that period of insurance to workers employed by the employer up to the date specified in the insurer’s request.(4) An employer must, not later than 2 months after the end of the period of insurance of a policy, supply the insurer who issued the policy with a notice in the approved form, duly completed, which contains a full and correct declaration by the employer of the wages that were actually paid by the employer during that period of insurance to workers employed by the employer.
149 Experience premium return
For the purpose of ascertaining the premium payable by an employer in respect of a period of insurance, an insurer to whom the employer has applied for the issue or renewal of a policy may, by notice in writing served on the employer not later than 1 month after the commencement or end of the period of insurance, require the employer to furnish the insurer, within 28 days of service of the notice:(a) with a declaration in the approved form, and(b) a statement setting forth (with respect to the last 2 injury years that occurred before the commencement of the period of insurance) the particulars relating to wages required by the attachment to that form to be inserted in it.
150 Offence by employer
An employer who, without reasonable excuse, refuses or fails to comply with clause 147 or 148 or with a requirement made in accordance with clause 149 is guilty of an offence.Maximum penalty: 20 penalty units.
Division 3 Input tax credit entitlements
151 Employer to give insurer notice of input tax credit entitlement
For the purpose of enabling a premium to be calculated, an employer must, prior to the commencement of the period of insurance for which the premium is to be calculated, notify the insurer concerned in writing of the employer’s input tax credit entitlement in relation to the payment of the premium for that policy of insurance.
Division 4 Certification of cost of claims
152 Definitions
(1) In this Division, cost of claims means the total of the following costs:(a) in relation to an injury year related to, or a period of insurance for, a policy (other than a retro-paid loss premium policy):(i) the total of the costs of each individual claim of which the insurer has notice at the time of expiry or renewal (as appropriate) of the policy concerned, being a claim made against a particular employer with respect to an injury received (or that is deemed by the 1987 Act or the former Act to have been received) during the injury year or the period of insurance, whichever is relevant, but not including any claim under section 10 (Journey claims) or section 11 (Recess claims) of the 1987 Act,(ii) the total of the costs of payment of provisional weekly payments of compensation and provisional payment of medical expenses compensation, if any, under Part 3 of Chapter 7 of the 1998 Act by the insurer, being payments of compensation on the basis of provisional acceptance of liability to a worker employed by a particular employer with respect to an injury received (or that is deemed by the 1987 Act to have been received) during the injury year or the period of insurance, and(b) in relation to an injury year related to, or a period of insurance for, a retro-paid loss premium policy:(i) the total of the costs of each individual claim of which the insurer has notice at the time of each adjustment date concerned, being a claim made against a particular employer with respect to an injury received (or that is deemed by the 1987 Act or the former Act to have been received) during the period of insurance, but not including any claim under section 10 (Journey claims) or section 11 (Recess claims) of the 1987 Act,but, in any case where a single event leads to 3 or more individual claims, the total costs of all those claims in relation to that event are not to exceed the amount that is twice the relevant large claim limit for the policy (as determined in accordance with clause 169 (5) and (7)).(ii) the total of the costs of payment of provisional weekly payments of compensation and provisional payment of medical expenses compensation, if any, under Part 3 of Chapter 7 of the 1998 Act by the insurer, being payments of compensation on the basis of provisional acceptance of liability to a worker employed by a particular employer with respect to an injury received (or that is deemed by the 1987 Act to have been received) during the period of insurance,(2) Despite subclause (1), cost of claims, in relation to a policy issued or renewed so as to take effect before 4 pm on 30 June 1995, has the meaning given to it by clause 135 of the Workers Compensation Regulation 2003 before its substitution by the Workers Compensation Amendment (Retro-Paid Loss Premium Method) Regulation 2009.
153 Prevention of double allowance for provisional compensation payments
(1) In this clause:provisional compensation payment means provisional weekly payment of compensation or provisional payment of medical expenses compensation, under Part 3 of Chapter 7 of the 1998 Act, on the basis of provisional acceptance of liability to a worker.(2) If payments are made in respect of a claim pursuant to the 1987 Act and provisional compensation payments have been made in respect of the injury concerned:(a) the provisional compensation payments are, for the purposes of determining the cost of the claim, taken to be payments made by the insurer in respect of the claim pursuant to the 1987 Act and are to be included as such under clause 154, and(b) clause 155 does not apply to those provisional compensation payments, and(c) the cost of those provisional compensation payments is not to be included in the total of the costs of provisional compensation payments under paragraphs (a) (ii) and (b) (ii) of the definition of cost of claims in clause 152 (1).
154 Cost of an individual claim
(1) For the purposes of this Part, the cost of an individual claim is (except as provided by subclause (2)) the sum of the following:(a) the payments, if any, made by the insurer in respect of the claim pursuant to the 1987 Act or the former Act,(b) the payments, if any, of damages at common law and under the Compensation to Relatives Act 1897 made by the insurer either in satisfaction of judgments relating to the claim or in settlement of the claim,(c) fees and expenses, if any, paid by the insurer to medical practitioners, investigators or assessors in respect of the investigation of the claim,(d) legal costs, if any, paid by the insurer in relation to the settlement or investigation of the claim or as a consequence of proceedings at law, including any such costs that were paid to the claimant or incurred by the insurer on the insurer’s own account,whether the payments were made or the fees, expenses or costs were paid (or the estimation relates to liability that will arise) during or after the injury year or period of insurance in which the injury to which the claim relates was received (or is deemed by the 1987 Act or the former Act to have been received).(e) the most accurate estimation for the time being of the insurer’s outstanding liability reasonably likely to arise out of the claim,(2) However, the cost of an individual claim:(a) does not include any amount calculated by reference to the insurer’s costs of administration or profit, and(b) in relation to a policy (other than a retro-paid loss premium policy)—is to be reduced by the amounts, if any, that have been recovered or are recoverable by the insurer from any source, other than an amount recovered or recoverable under section 160 of the 1987 Act, from the Insurers’ Contribution Fund or pursuant to a policy of reinsurance, and(c) in relation to a retro-paid loss premium policy—is to be reduced by the amounts, if any, that have been recovered or that, in the opinion of the Nominal Insurer, are recoverable by the insurer from any source, other than an amount recovered or recoverable under section 160 of the 1987 Act, from the Insurers’ Contribution Fund or pursuant to a policy of reinsurance, and(d) is to be reduced by:(i) in the case where the injured worker’s weekly payment of compensation is less than $500 or is not known (for example, the claim is for payment of medical expenses compensation only)—$500 or, if the cost of the claim is less than $500, that lesser cost, or(ii) in any other case—an amount that is the lesser of the following:(A) the amount that the injured worker is entitled to receive as one week’s weekly payment of compensation,(B) if the claim is covered by a policy of insurance that was issued or renewed so as to take effect before 4pm on 30 June 2006—$1,449.50,(C) if the claim is covered by a policy of insurance that was issued or renewed so as to take effect on or after 4pm on 30 June 2006, the amount specified by the relevant insurance premiums order that applies to that policy, and(e) does not include any amount paid or payable under section 64A of the 1987 Act (Compensation for cost of interpreter services), and(f) does not include any amount which section 54 (4) (b) of the 1998 Act (Second-injury scheme) requires to be excluded from the claims experience of the employer, and(g) is to be reduced by an amount that is the most accurate estimation for the time being by the insurer of the amount of any input tax credit or decreasing adjustment that may be claimed or has been claimed by the insurer in respect of the payments, fees, expenses or costs included in the cost of the individual claim under subclause (1), pursuant to the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth.(3) In this clause, references to the insurer’s outstanding liability reasonably likely to arise out of the claim are references to the amount calculated to be sufficient to meet all reasonably likely future payments in respect of the claim, including adjustments (at such rates, if any, as the Authority from time to time determines) to take account of expected future earnings on investments and expected future inflation or deflation on that amount.(4) For the purpose of this clause, in the case of a claim in respect of the death of or injury to a person caused by or arising out of a motor accident as defined in the Motor Accidents Act 1988:(a) the insurer’s liability to indemnify an employer in respect of the employer’s liability to the claimant independently of the 1987 Act is taken to be limited to the amount of damages (if any) that would be payable if Division 3 of Part 5 of the Workers Compensation Act 1987 applied to the award of damages concerned, and(b) the insurer is taken not to be liable for legal costs connected with proceedings under the Motor Accidents Compensation Act 1999 if damages would not have been payable if that Division applied to that award.(5) If the cost of an individual claim exceeds the large claim limit that applied when the injury to which the claim relates was received (or is deemed by the 1987 Act or the former Act to have been received), the cost of the individual claim is the amount of that large claim limit.(6) For the purposes of subclause (5) in relation to a policy (other than a retro-paid loss premium policy), the large claim limit specified in Column 2 of the Table to this clause applies to an injury that was received or is deemed to have been received during a year specified in Column 1 of that Table in relation to that limit.(7) For the purposes of subclause (5), in relation to a retro-paid loss premium policy, an employer is, before the commencement of the policy, to elect a large claim limit of one of the following amounts to apply to injuries received or deemed to have been received during the period of insurance:(a) $350,000,(b) $500,000.Large claim limits
155 Cost of provisional payments of compensation
(1) For the purposes of this Part, the cost of payment of provisional weekly payments of compensation and provisional payment of medical expenses compensation, if any, with respect to a particular injury is (except as provided by subclause (2)) the sum of the following:(a) the sum of the payments of provisional weekly payments of compensation and provisional medical expenses compensation, if any, made by the insurer in respect of the injury pursuant to the 1998 Act,(b) fees and expenses, if any, paid by the insurer to medical practitioners, investigators or assessors in respect of the investigation of the injury,(c) legal costs, if any, paid by the insurer in relation to the investigation of the injury, the determination of liability to make provisional weekly payments of compensation or provisional payment of medical expenses compensation and otherwise in complying with Divisions 1 and 3 of Part 3 of Chapter 7 of the 1998 Act,whether the payments were made or the fees, expenses or costs were paid (or the estimation relates to liability that will arise) during or after the injury year or period of insurance in which the injury was received (or is deemed by the 1987 Act to have been received).(d) the most accurate estimation for the time being of the insurer’s outstanding liability to make provisional weekly payments of compensation and provisional payment of medical expenses compensation, if any, with respect to the injury,(2) However, the cost of provisional weekly payments of compensation and provisional payment of medical expenses compensation with respect to a particular injury:(a) does not include any amount calculated by reference to the insurer’s costs of administration or profit, and(b) in relation to a policy (other than a retro-paid loss premium policy)—is to be reduced by the amounts, if any, that have been recovered or are recoverable by the insurer from any source, other than an amount recovered or recoverable under section 160 of the 1987 Act, from the Insurers’ Contribution Fund or pursuant to a policy of reinsurance, and(c) in relation to a retro-paid loss premium policy—is to be reduced by the amounts, if any, that have been recovered or that, in the opinion of the Nominal Insurer, are recoverable by the insurer from any source, other than an amount recovered or recoverable under section 160 of the 1987 Act, from the Insurers’ Contribution Fund or pursuant to a policy of reinsurance, and(d) is to be reduced by:(i) in the case where the injured worker’s provisional weekly payment of compensation is less than $500 or is not known (for example, the claim is for provisional payment of medical expenses compensation only)—$500 or, if the cost of the payments is less than $500, that lesser cost, or(ii) in any other case—an amount that is the lesser of the following:(A) the amount that the injured worker is entitled to receive as one week’s provisional weekly payment of compensation,(B) if the payment is under a policy of insurance that was issued or renewed so as to take effect before 4pm on 30 June 2006—$1,449.50,(C) if the payment is under a policy of insurance that was issued or renewed so as to take effect on or after 4pm on 30 June 2006, the amount specified by the relevant insurance premiums order that applies to that policy, and(e) does not include any amount paid or payable under section 64A (Compensation for cost of interpreter services) of the 1987 Act, and(f) does not include any amount that section 54 (4) (b) of the 1998 Act (Second-injury scheme) requires to be excluded from the claims experience of the employer, and(g) is to be reduced by an amount that is the most accurate estimation for the time being by the insurer of the amount of any input tax credit or decreasing adjustment that may be claimed or has been claimed by the insurer in respect of the payments, fees, expenses or costs included in the cost of provisional weekly payments of compensation or provisional payment of medical expenses compensation under subclause (1), pursuant to the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth.(3) In this clause, references to the insurer’s outstanding liability to make provisional weekly payments of compensation or provisional payment of medical expenses compensation with respect to an injury are references to the amount calculated to be sufficient to meet all reasonably likely future provisional payments of weekly compensation or medical expenses compensation in respect of the injury.
156 Certificates relating to cost of claims
(1) For the purpose of ascertaining the premium payable by an employer in respect of a period of insurance:(a) an employer to whom a policy has been issued by an insurer, ormay, by notice in writing served on the insurer who issued the policy not later than 1 month after the commencement of the period of insurance, require the insurer who issued the policy to furnish the employer or other insurer, within 21 days of service of the notice, with a certificate in the approved form, specifying (with respect to the whole or any part of the 2 last injury years which occurred or will have occurred before the commencement of the period of insurance) the particulars relating to costs of claims required by the form to be inserted in it.(b) another insurer,(2) An insurer who, without reasonable excuse:(a) fails to comply with a requirement made in accordance with subclause (1), oris guilty of an offence.(b) in purported compliance with any such requirement, furnishes a certificate knowing that the certificate contains particulars that are false or misleading in a material particular or knowing that the certificate is incomplete in a material particular,Maximum penalty: 20 penalty units.
157 Effect of certificate
(1) Where an insurer has, in accordance with clause 156, furnished a certificate to an employer or another insurer for the purpose of ascertainment of the premium payable in respect of a period of insurance, the particulars relating to costs of claims specified in the last or only certificate so furnished are binding on the employer and any insurer for the purpose of calculation at any time of those costs of claims as at the commencement of that period of insurance, except as provided by subclauses (2) and (3).(2) Those particulars are not binding on the employer to the extent of any inconsistency with a determination of the Authority under section 170 (Action by employer where premium not in accordance with insurance premiums order) of the 1987 Act.(3) If an insurer (other than the insurer who furnished the certificate) does not agree with any of those particulars and applies to the Authority for a variation of those particulars (and the application is not withdrawn or, in the opinion of the Authority, abandoned), the particulars relating to costs of claims specified in the certificate as confirmed or varied by the Authority are binding on any insurer for the purpose of calculation at any time of those costs of claims as at the commencement of that period of insurance.
158 Certificates by scheme agents relating to cost of claims— retro-paid loss premium policy
(1) For the purpose of ascertaining the premium payable by an employer in respect of a period of insurance in relation to a retro-paid loss premium policy, the Nominal Insurer may, by notice in writing, require the scheme agent through whom the policy was issued, to furnish the Nominal Insurer, within 21 days of service of the notice, with a certificate in the approved form, specifying the particulars relating to costs of claims requested in the notice.(2) A scheme agent must not, without reasonable excuse:(a) fail to comply with a requirement made in accordance with subclause (1), or(b) in purported compliance with any such requirement, furnish a certificate knowing that the certificate contains particulars that are false or misleading in a material particular or knowing that the certificate is incomplete in a material particular.Maximum penalty: 20 penalty units.
159 Employers who were previously self-insurers
(1) If an employer:(a) makes an application to an insurer for the issue or renewal of a policy, andthe cost of claims in relation to the period as a self-insurer is to be calculated (subject to any relevant determination of the Authority) as if the employer had been insured under a policy in respect of that period.(b) was a self-insurer during any part of the last 2 injury years occurring before the proposed period of insurance,(2) The provisions of this Division relating to insurers apply (subject to such modifications and exceptions as the Authority may determine) to such an employer in respect of the period as a self-insurer.
Division 5 Demand for premium
160 Notice of premium calculation
(1) An insurer may not demand a premium for the issue or renewal of a policy to which an insurance premiums order applies unless the insurer has sent or sends at the time to the employer a notice in the approved form, duly completed, relating to the calculation of the premium in respect of that employer.(2) The sending by an insurer of a notice referred to in subclause (1) to a broker or an intermediary or an agent of an employer (whether or not the notice is also addressed to the employer) does not constitute sending of the notice to the employer for the purposes of that subclause, but nothing in this subclause prevents the sending of any such notice to an employer by a postal or courier service.
Division 6 Procedure before Authority relating to insurance premiums
161 Applications
An application to the Authority under section 170 of the 1987 Act or clause 157 must, unless the Authority otherwise directs, be made in a approved form and lodged at the office of the Authority.
162 Answer
If a respondent who has notice of the application wishes to make representations to the Authority in relation to the application, the respondent must lodge those representations with the Authority in writing (unless the Authority otherwise directs).
163 Decision of Authority
The Authority:(a) is to consider the application and may have regard to such representations as it thinks fit, and(b) is to determine the matter to which the application relates, and(c) is to inform the applicant and the respondent of its decision in such manner as it thinks fit.
164 Procedure generally
The Authority may, in its discretion:(a) permit an actuary, auditor, accountant, insurance authority, medical referee or other person to sit with it as an assessor, and(b) obtain and consider a report from any insurer, self-insurer or any other person referred to in paragraph (a), in connection with its dealing with an application referred to in clause 161 or any other matter.
Division 7 Policies exempt from insurance premiums orders
165 Further policies exempt from order—unregulated premiums
(1) Policies issued or renewed by a specialised insurer are exempted from insurance premiums orders.(2) Despite subclause (1), policies issued or renewed by a specialised insurer are not exempt from an insurance premiums order to the extent that the order specifies a prescribed excess amount for the purposes of section 160 of the 1987 Act.
Division 8 Payment of premiums by instalments
Subdivision 1 Preliminary
166 Application of Division
(1) Subdivisions 2 and 3 apply in relation to policies other than retro-paid loss premium policies.(2) Subdivisions 4 and 5 apply in relation to retro-paid loss premium policies.
167 Definition
In this Division, , in relation to a retro-paid loss premium policy of insurance, means a premium for the policy calculated at the commencement of, or during, the period of insurance using the method for the calculation of a deposit premium set out in the relevant insurance premiums order that applies to that policy.
Subdivision 2 Payment in four instalments
168 Policies under which premiums may be paid in four instalments
(1) An employer may elect to pay the premiums under a policy of insurance in four instalments (together with any required adjustment of premium) under this Subdivision if:(a) the period of insurance is 12 months, and(b) the basic tariff premium (within the meaning of the insurance premiums order for the time being in force) for the employer’s policy of insurance at the time at which the insurer first demands a premium for the policy exceeds $1,000, and(c) the election is made within 1 month after the commencement of the period of insurance to which the premiums relate.(2) Payment of the required instalments deposit (that is, Instalment No 1) within 1 month after the commencement of the period of insurance constitutes an election to pay by instalments.(3) For the purposes of this Subdivision, the required instalments deposit is, subject to clause 169 (3), an amount equal to one-quarter of the estimated premium for the policy (as estimated for that payment).
169 Number, size and times for payment of instalments
(1) If an employer elects to pay the premiums under a policy of insurance by instalments in accordance with this Subdivision and pays the required instalments deposit (that is, Instalment No 1) within 1 month after the commencement of the period of insurance, the premiums are payable in instalments as follows:Instalment No 2Payment to be made within 4 months after the commencement of the period of insurance. The amount of the instalment is to be the amount by which one half of the estimated premium for the policy (as estimated for that payment) exceeds the amount paid as the required instalments deposit.Instalment No 3Payment to be made within 7 months after the commencement of the period of insurance. The amount of the instalment is to be the amount by which three-quarters of the estimated premium for the policy (as estimated for that payment) exceeds the amounts already paid as instalments (including the required instalments deposit).Instalment No 4Payment to be made within 10 months after the commencement of the period of insurance. The amount of the instalment is to be the balance of the estimated premium for the policy (as estimated for that payment) taking into account the amounts already paid as instalments (including the required instalments deposit).Adjustment of PremiumPayment to be made within 1 month after service on the employer of a notice that payment of such an adjustment is due. The amount of such an adjustment is the amount by which the actual premium payable for a policy exceeds the amounts already paid by way of instalments (including the required instalments deposit).(2) A notice in relation to an adjustment of premium as referred to in subclause (1) does not affect the service of a notice under section 172 (1) (c) of the 1987 Act.(3) If the estimated premium for the policy cannot be determined by the time the required instalments deposit is required to be paid, the amount of the required instalments deposit is to be:(a) one-quarter of the estimated premium for the employer for the previous period of insurance, or(b) if there was no such previous period of insurance—$300 or such greater amount as the employer and the insurer may agree.(4) Subclause (3) applies only if the estimated premium cannot be determined because the employer has not yet supplied the relevant notice under clause 147 (1) and the insurer cannot estimate the premium by reference to wages for the previous period of insurance in accordance with the relevant insurance premiums order.
Subdivision 3 Payment in twelve instalments
170 Policies under which premiums may be paid in twelve instalments
(1) An employer may elect to pay the premiums under a policy of insurance in twelve instalments (together with any required adjustment of premium) under this Subdivision if:(a) the period of insurance is 12 months, and(b) the basic tariff premium (within the meaning of the insurance premiums order for the time being in force) for the employer’s policy of insurance at the time at which the insurer first demands a premium for the policy exceeds $5,000, and(c) the election is made within 1 month after the commencement of the period of insurance to which the premiums relate.(2) Payment of the required instalments deposit (that is, Instalment No 1) within 1 month after the commencement of the period of insurance constitutes an election to pay by instalments.(3) For the purposes of this Subdivision, the required instalments deposit is, subject to clause 171 (3), an amount equal to one-twelfth of the estimated premium for the policy (as estimated for that payment).
171 Number, size and times for payment of instalments
(1) If an employer elects to pay the premiums under a policy of insurance by instalments in accordance with this Subdivision and pays the required instalments deposit (that is, Instalment No 1) within 1 month after the commencement of the period of insurance, the premiums are payable in instalments as follows:Instalment No 2Payment to be made within 2 months after the commencement of the period of insurance. The amount of the instalment is to be the amount by which two-twelfths of the estimated premium for the policy (as estimated for that payment) exceeds the amount paid as the required instalments deposit.Instalment No 3Payment to be made within 3 months after the commencement of the period of insurance. The amount of the instalment is to be the amount by which three-twelfths of the estimated premium for the policy (as estimated for that payment) exceeds the amount paid as instalments (including the required instalments deposit).Instalment Nos 4–11Payment to be made within 1 month after the date on which the last instalment was due. The amount is to be calculated in the same manner as Instalment Nos 2 and 3 adjusted appropriately according to the number of the instalment to be paid.Instalment No 12Payment to be made within 12 months after the commencement of the period of insurance. The amount of the instalment is to be the balance of the estimated premium for the policy (as estimated for that payment) taking into account instalments already paid (including the required instalments deposit).Adjustment of PremiumPayment to be made within 1 month after service on the employer of a notice that payment of such an adjustment is due. The amount of such an adjustment is the amount by which the actual premium payable for a policy exceeds the amounts already paid by way of instalments (including the required instalments deposit).(2) A notice in relation to an adjustment of premium as referred to in subclause (1) does not affect the service of a notice under section 172 (1) (c) of the 1987 Act.(3) If the estimated premium for the policy cannot be determined by the time the required instalments deposit (that is, Instalment No 1) or Instalment Nos 2, 3 or 4 are required to be paid, the amount of the required instalments deposit or other instalment is to be:(a) one-twelfth of the estimated premium for the employer for the previous period of insurance, or(b) if there was no such previous period of insurance—$300 or such greater amount as the employer and the insurer may agree.(4) Subclause (3) applies only if the estimated premium cannot be determined because the employer has not yet supplied the relevant notice under clause 162 (1) and the insurer cannot estimate the premium by reference to wages for the previous period of insurance in accordance with the relevant insurance premiums order.
Subdivision 4 Payment in four instalments—retro-paid loss premium policies
172 Policies under which premiums may be paid in four instalments
(1) An employer may elect to pay the deposit premium under a retro-paid loss premium policy in four instalments (together with any required adjustments of premium) under this Subdivision if:(a) the period of insurance is 12 months, and(b) the election is made within 1 month after the commencement of the period of insurance to which the deposit premium relates.(2) Payment of the first instalment (that is, Instalment No 1) within 1 month after the commencement of the period of insurance constitutes an election to pay by instalments under this Subdivision.(3) For the purposes of this Subdivision, the first instalment is an amount equal to one-quarter of the deposit premium for the policy.
173 Number, size and times for payment of instalments
If an employer elects to pay a deposit premium by instalments in accordance with this Subdivision and pays the first instalment (that is, Instalment No 1) within 1 month after the commencement of the period of insurance, the remaining instalments are payable as follows:Instalment No 2Payment to be made within 4 months after the commencement of the period of insurance. The amount of the instalment is to be the amount by which one half of the deposit premium for the policy (as calculated for that payment) exceeds the amount paid as the first instalment.Instalment No 3Payment to be made within 7 months after the commencement of the period of insurance. The amount of the instalment is to be the amount by which three-quarters of the deposit premium for the policy (as calculated for that payment) exceeds the amounts already paid as instalments.Instalment No 4Payment to be made within 10 months after the commencement of the period of insurance. The amount of the instalment is to be the balance of the deposit premium for the policy (as calculated for that payment) taking into account the amounts already paid as instalments.Note—Adjustments of the actual premium for a retro-paid loss premium policy are calculated at the relevant adjustment dates in accordance with the relevant insurance premiums order. Payment is to be made within 1 month after service on the employer of a notice that payment of such an adjustment is due: see section 172 (1) (c) of the 1987 Act.
Subdivision 5 Payment in twelve instalments—retro-paid loss premium policies
174 Policies under which premiums may be paid in twelve instalments
(1) An employer may elect to pay the deposit premium under a retro-paid loss premium policy in twelve instalments (together with any required adjustment of premium) under this Subdivision if:(a) the period of insurance is 12 months, and(b) the election is made within 1 month after the commencement of the period of insurance to which the premium relates.(2) Payment of the first instalment (that is, Instalment No 1) within 1 month after the commencement of the period of insurance constitutes an election to pay by instalments.(3) For the purposes of this Subdivision, the first instalment is an amount equal to one-twelfth of the deposit premium for the policy.
175 Number, size and times for payment of instalments
If an employer elects to pay the deposit premium under a policy of insurance by instalments in accordance with this Subdivision and pays the first instalment (that is, Instalment No 1) within 1 month after the commencement of the period of insurance, the remaining instalments are payable as follows:Instalment No 2Payment to be made within 2 months after the commencement of the period of insurance. The amount of the instalment is to be the amount by which two-twelfths of the deposit premium for the policy (as calculated for that payment) exceeds the amount paid as the first instalment.Instalment No 3Payment to be made within 3 months after the commencement of the period of insurance. The amount of the instalment is to be the amount by which three-twelfths of the deposit premium for the policy (as calculated for that payment) exceeds the amount paid as instalments.Instalment Nos 4–11Payment to be made within 1 month after the date on which the last instalment was due. The amount is to be calculated in the same manner as Instalment Nos 2 and 3 adjusted appropriately according to the number of the instalment to be paid.Instalment No 12Payment to be made within 12 months after the commencement of the period of insurance. The amount of the instalment is to be the balance of the deposit premium for the policy (as calculated for that payment) taking into account instalments already paid.Note—Adjustments of the actual premium for a retro-paid loss premium policy are calculated at the relevant adjustment dates in accordance with the relevant insurance premiums order. Payment is to be made within 1 month after service on the employer of a notice that payment of such an adjustment is due: see section 172 (1) (c) of the 1987 Act.
Division 9 Miscellaneous
176 Transitional—operation of amendments
An amendment to this Part does not apply to or in respect of any policy of insurance that takes effect before the amendment commences, unless the amendment otherwise specifically provides.
177 Rebate of premium where fraud or mistake involved in claims
(1) An employer is entitled to a rebate for an overpayment of an insurance premium if:(a) an amount of a claim was included in the costs of claims used in the calculation of the insurance premium, and(b) on or after 1 January 2000:(i) a court in a criminal prosecution determined that the claim or part of the claim was fraudulent (whether or not a person is convicted for the fraud), or(ii) the Compensation Court or the Commission in a final determination determined that the claim was made by a person who was not a worker, or(iii) the Authority:(A) is satisfied that the claim is one to which section 235B of the 1998 Act applies, or(B) has made an order under section 235D of the 1998 Act in relation to the claim.(2) An employer is entitled to such a rebate in relation to each period of insurance for which the amount of a claim referred to in subclause (1) was included in the calculation of the insurance premium for that period.(3) The amount of the rebate that an employer is entitled to under this clause is to be determined by the Authority.
Part 19 Miscellaneous
178 Disclosure of information for complaint about health practitioners: sec 243 (2) (d) of the 1998 Act
(1) The Authority may disclose any information obtained in connection with the administration or execution of the workers compensation legislation concerning a health practitioner or any person to whom a health service has been provided by a health practitioner if the disclosure is made to the Commission or to a professional council or registration authority under the Health Practitioner Regulation National Law.(2) Disclosure under this clause is allowed only for the purpose of:(a) the making of a complaint by the Authority about the health practitioner under the Health Practitioner Regulation National Law or the Health Care Complaints Act 1993, or(b) assisting with any subsequent investigation, hearing or other action under the Health Practitioner Regulation National Law or the Health Care Complaints Act 1993 in connection with the complaint.(3) In this clause:Authority includes the Nominal Insurer.Commission, health practitioner, health service and have the same meanings as in the Health Care Complaints Act 1993.the workers compensation legislation means the 1998 Act, the 1987 Act and the former 1926 Act.
178A Disclosure of information to Long Service Corporation: sec 243 (2) (d) of the 1998 Act
(1) The Authority may disclose details of contract cleaning industry employers, obtained in connection with the administration or execution of the workers compensation legislation, to the Long Service Corporation.(2) Disclosure under this clause is allowed only for the purpose of ensuring that the Long Service Corporation has names and contact details of contract cleaning industry employers.(3) In this clause:contract cleaning industry employer means an employer within the meaning of the Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010.Long Service Corporation means the Long Service Corporation constituted under the Long Service Corporation Act 2010.cl 178A: Ins 2012 (610), cl 3.
179 Additional records to be kept by employers
Pursuant to section 174 of the 1987 Act, an employer must keep records of the following additional matters:(a) to the extent that is relevant to the employer—the number of taxi plates of the employer, the number of rides for jockeys, the number of bouts for boxers and wrestlers and the number of games for football players,(b) in the case of workers paid under contracts of the kind referred to in paragraph (b) of the definition of wages in section 174 (9) of the 1987 Act—details of the contract concerned and related documentation, sufficient to enable an insurer to determine the amount of any costs to be deducted as referred to in that paragraph,(c) in the case of a worker engaged as an apprentice—records sufficient to establish the existence of the apprenticeship, including:(i) any documents required to be kept under the Apprenticeship and Traineeship Act 2001 in relation to the apprentice, and(ii) any apprenticeship contracts approved by the Department of Education and Training in relation to the apprentice.
180 Uninsured liabilities—modification of provisions of the 1987 Act
For the purposes of section 142A (2) and 148 (3) of the 1987 Act, the following modifications are made to the provisions of the 1987 Act in their application to claims made under the Scheme:(a) references in sections 40A, 54, 83 and 84 of the 1987 Act and in sections 71, 119, 122, 125 and 126 of the 1998 Act to an insurer, self-insurer or employer are to be read as references to the Nominal Insurer,(b) references in sections 11A (8) and 38A of the 1987 Act and in sections 58 and 65 (5) of the 1998 Act to an insurer or self-insurer are to be read as references to the Nominal Insurer,(c) in a case where a claim is made to a court or the Commission under section 142B of the 1987 Act and the employer named by the applicant under section 142B (2) is a corporation that has ceased to exist or a deceased person whose estate has been distributed—section 142B (2) is to be read as if it also provided that (in such a case) the application is not, subject to any rules of the court or the Commission, required to serve a copy of the application on that person,(d) section 174 (6A) of the 1987 Act is to be read as if section 174 (6B) were omitted.
181 Delegation of Authority’s functions: sec 21 of 1998 Act
The class of persons consisting of part-time members of the Board of Directors is prescribed for the purposes of the definition of in section 21 (3) of the 1998 Act, but only in respect of the delegation of any functions of the Authority relating to scheme agents (including the appointment of scheme agents).
182 Costs of medical assessment: sec 330 of 1998 Act
(1) An employer or insurer is not required to pay any costs of medical assessment in connection with:(a) a medical assessment under Part 7 of Chapter 7 of the 1998 Act, if the worker failed without reasonable excuse to submit himself or herself to a medical examination conducted for the assessment, or(b) any further examination conducted for a medical assessment referred to in paragraph (a), or(c) an appeal against such a medical assessment, if the worker failed without reasonable excuse to attend a hearing on the appeal, or(d) any further hearing held on an appeal referred to in paragraph (c).(2) The worker is required to pay any costs of assessment referred to in subclause (1) (a)–(d).
183 Arrangement of business before Commission: sec 349 of 1998 Act
(1) The President determines which Presidential member will hear an appeal against a decision of an Arbitrator or an application for leave to appeal.(2) The Registrar determines which Arbitrator will hear any other matter before the Commission.
184 Proceedings to enter up award on agreement for compensation: sec 66B of 1987 Act
An application for determination of a claim for compensation by way of an award to give effect to an agreement between the parties may be lodged only if the application is accompanied by such evidence that the proceedings are not prevented by section 66B of the 1987 Act from being entertained by the Commission as is specified by the Rules of the Commission for that purpose.
Part 20 Savings and transitional provisions
185 Repeal of Workers Compensation Regulation 2003
The Workers Compensation Regulation 2003 is repealed.
186 Saving
Any act, matter or thing that, immediately before the repeal of the Workers Compensation Regulation 2003, had effect under any of that Regulation continues to have effect under this Regulation.Note—Schedule 8 also contains savings and transitional provisions.cl 186: Am 2012 (468), Sch 1 [2].
Schedule 1 Diseases taken to be work-related
Column 1 | Column 2 |
Poisoning by lead, its alloys or compounds, and its sequelae | Handling of ore containing lead including fine shot in zinc factories Casting of old zinc and lead in ingots Manufacture of articles made of cast lead or of lead alloys Employment in the polygraphic industries Manufacture of lead compounds Manufacture and repair of electric accumulators Preparation and use of enamels containing lead Polishing by means of lead files or putty powder with a lead content All painting operations involving the preparation and manipulation of coating substances, cements or colouring substances containing lead pigments |
Poisoning by mercury or its amalgams or compounds, and its sequelae | Handling of mercury ore Manufacture of mercury compounds Manufacture of measuring and laboratory apparatus Preparation of raw material for the hat-making industry Hot gilding Use of mercury pumps in the manufacture of incandescent lamps Manufacture of fulminate of mercury primers |
Anthrax infection | Work in connection with animals infected with anthrax Handling of animal carcases or parts of such carcases including hides, hoofs and horns Loading and unloading or transport of merchandise that has come in contact with animals infected with anthrax or with animal carcases or parts of such carcases |
Phosphorus poisoning by phosphorus or its compounds, and its sequelae | Any process involving the production, liberation or utilisation of phosphorus or its compounds |
Arsenic poisoning by arsenic or its compounds, and its sequelae | Any process involving the production, liberation or utilisation of arsenic or its compounds |
Poisoning by benzene or its homologues, their nitro- and amido-derivatives, and its sequelae | Any process involving the production, liberation or utilisation of benzene or its homologues, or their nitro- and amido-derivatives |
Poisoning by the halogen derivatives of hydrocarbons of the aliphatic series | Any process involving the production, liberation or utilisation of halogen derivatives of hydrocarbons of the aliphatic series |
Pathological manifestations of a kind that are due to or contributed to by: (a) radium and other radioactive substances, (b) X-rays | Any process involving exposure to the action of radium, radioactive substances or X-rays |
Primary epitheliomatous cancer of the skin | Any process involving the handling or use of tar, pitch, bitumen, mineral oil, paraffin, or the compounds, products or residues of these substances |
Brucellosis, Leptospirosis and Q fever | Slaughtering of cattle on the slaughter-floor of an abattoir or slaughter-house Handling or processing of the slaughtered carcases of cattle in an abattoir or slaughter-house Penning up or running cattle through a race at an abattoir or slaughter-house Any activity, incidental or necessary to the carrying out of the above activities, on the slaughter-floor, in any area where the raw by-products of slaughtered cattle are handled or in or about any pen or race of an abattoir or slaughter-house |
Schedule 2 Medical tests and results—brucellosis, Q fever and leptospirosis
Column 1 | Column 2 | Column 3 |
Brucellosis | A Brucella abortus agglutination or complement fixation test of 2 blood samples, the second of which was taken not earlier than 10 days and not later than 28 days after the day on which the first sample was taken | A four-fold or greater increase in antibody titre |
A Brucella abortus agglutination test of a single blood sample | An antibody titre of 640 or greater | |
A Brucella abortus complement fixation test of a single blood sample, where the sample was taken from a person with symptoms consistent with chronic brucellosis | An antibody titre of 640 or greater | |
A laboratory culture of any specimen | The isolation of Brucella abortus | |
Q fever | A Q fever complement fixation test of 2 blood samples, the second of which was taken not earlier than 10 days and not later than 28 days after the day on which the first sample was taken | A four-fold or greater increase in antibody titre |
A fluorescence test of a single blood sample | The demonstration of Q fever specific IgM antibodies | |
A laboratory culture of any specimen | The isolation of Coxiella burneti | |
Leptospirosis | The comparison of 2 blood samples (the second of which was taken not earlier than 10 days and not later than 60 days after the day on which the first sample was taken) by any technical method that: (a) is the same as a technical method used by the Leptospiral Reference Laboratory at the Laboratory of Microbiology and Pathology, Department of Health, Brisbane, for the purpose of comparing blood samples to establish whether or not a person has contracted leptospirosis, and (b) involves the use of a panel of leptospiral antigens or serovars that is recommended by the Leptospiral Reference Laboratory for use in making such a comparison | A four-fold or greater increase in antibody titre |
The analysis of a single specimen of blood serum by any technical method that: (a) is the same as a technical method used by the Leptospiral Reference Laboratory at the Laboratory of Microbiology and Pathology, Department of Health, Brisbane, for the purpose of analysing a single specimen of blood serum to establish whether or not a person has contracted leptospirosis, and (b) involves the use of a panel of leptospiral antigens or serovars that is recommended by that Leptospiral Reference Laboratory for use in carrying out such an analysis | Agglutination of a leptospiral antigen at a dilution of 1 in 400 or greater | |
A laboratory culture of a leptospire from blood or urine | The isolation of an invasive leptospire |
Schedule 3 Mandatory provisions in employer’s insurance policy
Part 1 Preliminary
1 Definitions
In this Policy:Employer means the person insured under this Policy, being the person named as the Employer in the Schedule of Employer Particulars.Insurer means the insurer of the Employer under this Policy, being the person named as the Insurer in the Schedule of Employer Particulars.period of insurance means the period specified in the Schedule of Employer Particulars as the period during which this Policy is in force, and any subsequent period in respect of which this Policy is duly renewed.Schedule of Employer Particulars means the Schedule most recently issued by the Insurer to the Employer as the Schedule of Employer Particulars in respect of this Policy.the Act means the Workers Compensation Act 1987 and includes the Workplace Injury Management and Workers Compensation Act 1998.the Proposal means the proposal for insurance in respect of which this Policy is issued (made by the Employer to the Insurer).worker has the same meaning as in the Act (including the extended meaning it has because of Schedule 1 (Deemed employment of workers) to the Act).
2 Proposal and Schedule form part of Policy
The Proposal is the basis of this contract of insurance. Both the Proposal and the Schedule of Employer Particulars are considered to form part of this Policy.
Part 2 Cover provided by Policy
3 What the Insurer is liable for
The Insurer will indemnify the Employer against all of the following sums for which the Employer becomes liable during or in respect of the period of insurance:(a) compensation that the Employer becomes liable to pay under the Act to or in respect of any person who is a worker of the Employer (including any person to whom the Employer is liable under section 20 of the 1987 Act),(b) any other amount that the Employer becomes liable to pay independently of the Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another State, a Territory or the Commonwealth or a liability arising under the law of another country) for any injury to any such person (not including liability in respect of an injury, suffered by a person other than such a worker, arising out of any rescue or attempted rescue),(c) costs and expenses incurred with the written consent of the Insurer in connection with the defence of any legal proceeding in which any such liability is alleged.The Insurer will not indemnify the Employer for the Employer’s liability for GST payable on the settlement of a claim.
4 Businesses and industrial activities to which Policy applies
This Policy applies to a business or industrial activity described in the Schedule of Employer Particulars. The Employer can change the businesses or industrial activities to which this Policy applies by giving notice of the change in writing to the Insurer. The Schedule of Employer Particulars is taken to have been changed to give effect to any such notice given by the Employer. The premium payable for this Policy is to be adjusted in accordance with any change in the businesses or industrial activities to which this Policy applies.
5 Insurer is directly liable to workers
The Insurer (as well as the Employer) is directly liable to any worker and (if the worker dies) to the worker’s dependants or other persons to pay the compensation under the Act or other amount independently of the Act for which the Employer is liable and indemnified under this Policy. This means that a claim can be made and action taken directly against the Insurer.
6 Insurer is bound by judgments etc against Employer
The Insurer is bound by and subject to any judgment, order, decision or award given or made against the Employer, in respect of any liability for which the Insurer is liable to indemnify the Employer under this Policy.
7 Premium
The premium for this Policy is calculated in accordance with the relevant Insurance Premiums Order (unless this Policy is exempt from Insurance Premiums Orders).
Part 3 Conditions of Policy
8 Employer must give Insurer or WorkCover notice of injury to worker
The Employer must notify the Insurer or WorkCover within 48 hours after becoming aware that a worker has received a workplace injury.
9 How notices are to be given
(1) Notices to be given under this Policy to the Insurer are to be given by being delivered, posted or transmitted electronically to the address of the Insurer last notified to the person giving the notice.(2) Notices to be given under this Policy to the Employer are to be given by being delivered, posted or transmitted electronically to the address of the Employer last known to the Insurer.(3) The notification of injury required by clause 8 is to be given to the Insurer in the manner required by subclause (1) or in such other manner as the Insurer indicates to the Employer that the Insurer will accept.
10 Employer not to make admissions etc
The Employer must not, without the written authority of the Insurer, incur any expense of litigation, or make any payment, settlement or admission of liability in respect of any injury to or claim made by any worker.
11 Defence of proceedings
The Insurer can use the name of the Employer in respect of anything indemnified under this Policy, including the bringing, defending, enforcing or settling of legal proceedings for the benefit of the Insurer. The Employer must comply with all reasonable requests by the Insurer for information, assistance and documents to enable the Insurer to settle or resist a claim.
12 Subrogation
The Insurer can use the name of the Employer in any proceedings to enforce, for the benefit of the Insurer, any order made for costs or otherwise. The Insurer has the right of subrogation in respect of all rights which the Employer may have against any person or persons who may be responsible to the Employer or otherwise in respect of any claim for any injury covered by this Policy. The Employer must execute such documents as may be necessary for the purpose of vesting any of those rights in the Insurer, as and when required to do so by the Insurer.
13 Precautions to prevent injury
The Employer must take all reasonable precautions to prevent injury.
14 Alterations and repairs following injury
So far as is reasonably practicable, the Employer must not alter or repair any work, machinery, plant, way or appliance after an injury to a worker occurs in connection with it, until the Insurer has had an opportunity to examine it or has consented to the alteration or repair being made.
15 Insurer’s right of inspection
The Insurer is entitled to inspect at any reasonable time any work, machinery, plant, way or appliance used in the Employer’s business or industrial activity.
16 Assignment
An assignment of interest under this Policy does not bind the Insurer unless the written consent of the Insurer to the assignment has been obtained.
17 Renewal of Policy
This Policy is renewed on the expiration of the current period of insurance to which it applies, except where:(a) the Employer has given written notice to the Insurer (before the expiration of the current period of insurance) that renewal is not required, or(b) the Insurer has given the Employer notice in writing not less than 14 days before the expiration of the current period of insurance that the Insurer refuses to renew the Policy, but the Insurer cannot refuse to renew this Policy unless the WorkCover Authority has given its prior consent in writing to the refusal.The period of each renewal is 12 months, or such shorter period as the Insurer and the Employer agree to before renewal.
18 Cancellation of Policy
The Insurer may cancel this Policy at any time if the Insurer has first obtained the written consent of the WorkCover Authority (and cannot cancel this Policy in any circumstances without that consent). The Insurer cancels this Policy by giving notice of cancellation in writing to the Employer. The cancellation takes effect on the cancellation day notified in the notice of cancellation but that day must not be less than 7 days after the notice of cancellation is given to the Employer. Section 184 of the 1987 Act applies as if the Policy had been cancelled under that section.
19 No waiver or alteration
A provision of this Policy cannot be waived or altered unless the consent of the Insurer has been previously obtained and signified by endorsement on this Policy.
20 Employer must tell Insurer if unable to give suitable work requested by injured worker
If a worker employed by the Employer is partially incapacitated for work as a result of an injury and requests the Employer to provide suitable employment for him or her and the Employer does not immediately provide suitable employment, the Employer must promptly notify the Insurer of the following:(a) the fact of the worker’s request and that the Employer has not provided suitable employment,(b) any proposal to provide or arrange for suitable employment for the worker, having regard to the medical certificate which the worker supplies and to the Employer’s return-to-work program (if any) or otherwise.
21 Employer must advise change of business or industry
The Employer must notify the Insurer, as soon as practicable, of any change in the business or industrial activity carried on by the Employer.
22 Records to be kept of wages
The Employer agrees to allow the Insurer to inspect the records kept by the Employer under section 174 of the 1987 Act.Note—Section 174 of the 1987 Act requires the Employer to keep certain records (such as records of wages paid to workers) and requires the Employer to keep those records for at least 5 years. The section gives the WorkCover Authority certain rights to inspect those records.
23 Cover conditional on Employer complying with Policy, Act and regulations
The indemnity provided by this Policy is conditional on compliance by the Employer with the provisions of this Policy, the Act and the regulations under the Act.
24 Act and regulations form part of Policy
This Policy is subject to the provisions of the Act and the regulations under the Act and those provisions are taken to form part of this Policy.Notes—1Recovery of excess from Employer. Under section 160 of the 1987 Act, the Employer is required to repay the prescribed excess amount, as specified by the relevant insurance premiums order, in respect of each claim for weekly compensation paid by the Insurer.An Employer is not required to make the repayment to the extent that the Insurer either offsets the amount against compensation duly advanced by the Employer to the claimant worker or makes an appropriate debit against any amount standing to the Employer’s credit for premiums.2Disputes about premium. If the Employer disputes the premium for this Policy calculated by the Insurer under an Insurance Premiums Order, the Act lets the Employer apply to the WorkCover Authority for a determination of the disputed aspect of the calculation. If the Employer wishes to make such an application, it must usually be lodged within 1 month after the Insurer demands the premium. The Employer should first try to resolve any premium problem by contacting the Insurer. Even if the Employer lodges such an application with the WorkCover Authority, the premium demanded by the Insurer remains payable (except to the extent that the WorkCover Authority otherwise directs) pending the WorkCover Authority’s determination.3Domestic etc workers. If this Policy is issued for domestic or similar workers (including when this Policy forms part of a household insurance package) it is to be read as if:(a) the reference to the Employer carrying on business were a reference to the Employer employing domestic or similar workers, and(b) the provisions in clause 4 for the Employer to notify a change of business or industrial activity were omitted, and the provisions of clauses 17 (Renewal of Policy) and 21 (Employer must advise change of business or industry) were omitted.4Workplace injury management. The Employer of an injured worker who has been totally or partially incapacitated for work has certain obligations under Chapter 3 of the Workplace Injury Management and Workers Compensation Act 1998, including an obligation under section 49 to provide suitable employment if the worker is able to return to work. It is a condition of this Policy that the Employer must comply with the requirements of that Chapter, but only if the Insurer has taken appropriate steps to ensure that the Employer is made aware of those obligations.
Schedule 4 Ministers of religion
(Clause 86)
Religious body or organisation | Class | Employer |
Anglican Church of Australia—Diocese of Canberra and Goulburn | Clergy holding a licence from the Bishop of the Diocese who perform work wholly or partly in New South Wales | Anglican Church Property Trust, Diocese of Canberra and Goulburn |
Anglican Church of Australia—Diocese of Grafton | Clergy holding a licence from the Bishop of the Diocese who perform work wholly or partly in New South Wales | The Corporate Trustees of the Diocese of Grafton |
Anglican Church of Australia—Diocese of Riverina | Clergy holding a licence from the Bishop of the Diocese who perform work wholly or partly in New South Wales | Riverina Diocesan Trust |
Assemblies of God New South Wales | Ministers serving a congregation in New South Wales affiliated with or recognised by the Assemblies of God New South Wales who receive a stipend paid by that congregation | The Assembly of the congregation concerned |
The Baptist Union of New South Wales | Ministers serving a congregation in New South Wales affiliated with or recognised by The Baptist Union of New South Wales who receive a stipend paid by that congregation | The Secretary of the congregation concerned |
Central Coast Christian Life Centre | Ministers serving a congregation in New South Wales affiliated with or recognised by the Central Coast Christian Life Centre who receive a stipend paid by that congregation | The Central Coast Christian Life Centre Limited |
Church of Christ (Non-denominational)—Bankstown | Ministers serving a congregation in New South Wales affiliated with or recognised by the Church of Christ (Non-denominational)—Bankstown who receive a stipend paid by that congregation | The congregation concerned |
Classis New South Wales of the Reformed Churches of Australia | (a) Ministers serving a congregation in New South Wales affiliated with or recognised by the Classis New South Wales of the Reformed Churches of Australia who receive a stipend paid by that congregation | (a) The Session of the congregation concerned |
(b) Ministers serving the Classis New South Wales of the Reformed Churches of Australia who receive a stipend paid by the Classis | (b) The Classis New South Wales of the Reformed Churches of Australia | |
Coptic Orthodox Church, New South Wales, Australia | Clergy authorised by the President of the Church Council in New South Wales to serve a parish in New South Wales | Coptic Orthodox Church (NSW) Property Trust |
Fellowship of Congregational Churches | Clergy serving a congregation in New South Wales affiliated with or recognised by the Fellowship of Congregational Churches who receive a stipend paid by that congregation | The Secretary of the congregation concerned |
Presbyterian Church of Australia in the State of New South Wales | Presbyterian Ministers | Presbyterian Church in the State of New South Wales |
Southside Christian Fellowship | Ministers serving a congregation in New South Wales affiliated with or recognised by the Southside Christian Fellowship who receive a stipend paid by that congregation | The Southside Christian Fellowship Incorporated |
Uniting Church in Australia—Synod of NSW and the ACT | Ministers serving a congregation in New South Wales affiliated with or recognised by the Uniting Church in Australia, Synod of NSW and the ACT who receive a stipend paid by that congregation | Uniting Church in Australia—Synod of NSW and the ACT |
Schedule 5 Penalty notice offences
(Clause 93)
Part 1 Provisions of 1987 Act
Column 1 | Column 2 |
Provision | Penalty $ |
section 43 (2A) | 200 |
section 155 (1) | 750 |
section 161 (3) | 200 |
section 163 (1) | 200 |
section 163 (3) | 200 |
section 163A (2) | 500 |
section 163A (6) | 500 |
section 163A (7) | 500 |
section 174 (1) (a) | 500 |
section 174 (1) (b) | 500 |
section 174 (1) (c) | 500 |
section 174 (2) | 500 |
section 174 (3) | 500 |
section 174 (8) | 500 |
section 192A (4A) | 500 |
Part 2 Provisions of 1998 Act
Column 1 | Column 2 |
Provision | Penalty $ |
section 59D | 500 |
section 63 (5) | 500 |
section 69 (1) (a) | 500 |
section 69 (1) (b) | 500 |
section 69 (1) (c) | 500 |
section 74A (3) | 500 |
section 79A (4) | 200 |
section 80 (5) | 200 |
section 81A (2) | 200 |
section 82 (3) | 200 |
section 90 (7) | 200 |
section 94 (1) | 500 |
section 94 (2) | 500 |
section 126 (2) | 200 |
section 231 (3) | 200 |
section 232 (2) (a) | 200 |
section 232 (2) (b) | 200 |
section 238AA | 500 |
section 256 (5) | 500 |
section 264 (1) | 500 |
section 264 (2) | 500 |
section 264 (3) | 500 |
section 267 (5) | 500 |
section 268 | 500 |
section 283 (1) | 500 |
section 285 | 500 |
section 290 (2) | 500 |
section 343 (4) (a) | 500 |
section 343 (4) (b) | 500 |
section 357 (3) | 500 |
section 358 (3) | 500 |
section 359 (2) | 500 |
Part 3 Provisions of the Workers Compensation Regulation 2010
Column 1 | Column 2 |
Provision | Penalty $ |
Clause 16 | 50 (category 2 employer) 200 (category 1 employer) |
Clause 21 | 20 (category 2 employer) 100 (category 1 employer) |
Clause 41 | 500 |
Clause 43 (2) | 200 |
Clause 79 | 750 |
Clause 150 | 500 |
sch 5: Am 2012 (480), Sch 1 [6].
Schedule 6 Maximum costs—compensation matters
Part 1 Application and operation of Schedule
1 Introduction
(1) This Schedule applies to:(a) workers compensation claims and disputes that are resolved before proceedings are commenced in the Workers Compensation Commission (the Commission) (in certain circumstances), and(b) disputes that are resolved after proceedings have been commenced in the Commission.(2) When a claim or dispute is resolved, legal practitioners or agents representing the parties will need to determine what type of resolution has been reached and when it was resolved. By applying these factors to this Schedule, the legal practitioners or agents will be able to ascertain the costs recoverable.(3) If a claim or dispute involves a number of resolution types that are resolved concurrently, or within a specified time frame, the costs recoverable are restricted to the resolution for which the highest amount of costs is payable.(4) The recoverable costs will be either:(a) a maximum flat, predetermined figure, or(b) in the case of certain “special resolutions”, a maximum amount establishing a range within which the parties may negotiate their costs entitlement.(5) If a claim or dispute (other than a claim or dispute resolved by special resolution) includes “additional legal services” or involves “factors” as referred to in Table 4, there may be an additional allowance that can be added to the entitlement to costs.(6) Part 3 determines regulated disbursements. Unregulated disbursements as identified by clause 113 of the Workers Compensation Regulation 2010, may be determined by the Legal Profession Regulation 2005, or if that Regulation does not apply, then principles of fairness and reasonableness apply. Disbursements that are neither regulated under Part 3 nor specified in clause 113 of the Workers Compensation Regulation 2010are not recoverable, subject to clause 17 of this Part (Recovery of certain charges for certain documents from public authorities).(7) This Schedule contains three Parts:Part 1 contains definitions, describes how the Tables operate and in some cases modifies the operation of the Tables.Part 2 contains four tables:Table 1 sets out the phases at which claims and disputes may be resolved and the costs that apply for the resolution at each phase.Table 2 sets out the types of resolutions that apply to Table 1, and indicates the level of costs (ie 75% or 100%) that will apply to that resolution type.Table 3 sets out alternate or “special” resolution types and the applicable costs for each party. Tables 1 and 2 do not apply to these “special” resolution types.Table 4 sets out additional legal services and other factors that may result in an increase to the costs claimable under Table 1.Part 3 lists regulated disbursements.
2 Definitions
(1) In this Schedule:application means an application for resolution of a claim or dispute in the approved form accepted by the Registrar for registration.complying agreement has the same meaning as in section 66A of the 1987 Act.dispute notice means:(a) a notice issued under section 54 of the 1987 Act, or(b) a notice issued under section 74 of the 1998 Act, or(c) a notice issued under section 287A of the 1998 Act.fee order means an order made by the Authority in relation to fees.insurer includes the Nominal Insurer, a self-insurer and a specialised insurer.lead scheme agent means the agent who is representing the Nominal Insurer on behalf of a number of scheme agents in the conduct of a claim or dispute.legal practitioner means an Australian legal practitioner.Nominal Insurer has the same meaning as in the 1987 Act.resolved—see subclauses (2) and (3).respondent means a person who is a party to a dispute other than the applicant.scheme agent has the same meaning as in the 1987 Act.self-insurer has the same meaning as in the 1987 Act.specialised insurer has the same meaning as in the 1987 Act.Table means a Table in Part 2.teleconference means a telephone conference conducted by the Registrar or the Commission.the 1926 Act means the Workers’ Compensation Act 1926.(2) Meaning of “resolved”—claimant For the purposes of this Schedule, a claim or dispute is resolved, in relation to a claimant, if:(a) the claim or dispute is wholly or partly resolved in the claimant’s favour, orbut does not include a matter discontinued, withdrawn, dismissed or struck out without any resolution referred to in paragraph (a) or (b) unless otherwise ordered or certified for the purposes of cost recovery by the Commission or the Registrar.(b) an application brought by an insurer in relation to the claim or dispute is successfully defended in whole or in part,(3) Meaning of “resolved”—insurer For the purposes of this Schedule, a claim or dispute involving a claimant is resolved, in relation to an insurer, if:(a) the claim or dispute is concluded, orunless otherwise ordered or certified for the purposes of cost recovery by the Commission or the Registrar.(b) an application brought by the insurer in respect of the claim or dispute is concluded,(4) Meaning of other compensation claim or dispute in Table 1 A reference in Table 1 to an other compensation claim or dispute (or other compensation dispute) is a reference to a claim or dispute (or a dispute) concerning compensation to which the resolutions in items 5–16 of Table 2 relate.Note—The purpose of this subclause is to make it clear that the successive use of the word “other” in Table 1 does not result in successive narrowing of the terms used.
3 Overall application of Schedule
(1) This Schedule is to be read and applied in its entirety, and accordingly this Schedule applies in relation to costs in accordance with:(a) the descriptions contained in Tables 1 to 4, and(b) the notes in Part 2, and(c) Parts 1 and 3.(2) This Schedule prescribes the maximum costs recoverable in respect of work carried out to achieve the resolution types described in Tables 2 and 3 for:(a) resolving claims and disputes before an application is accepted by the Registrar for registration, or(b) resolving disputes after an application is accepted by the Registrar for registration.
4 General application of Tables
(1) General resolution types The maximum amount of costs for the resolution of a claim or dispute as described in Table 2 are the amounts set out in:(a) column 1 or 2 of Table 1 for the claimant, andfor the applicable phase.(b) column 3 or 4 of Table 1 for the insurer,However:(a) that maximum amount may be decreased by an amount already received under an entitlement from Table 3 in circumstances specified in that Table, and(b) that maximum amount may be increased by an entitlement under Table 4 in circumstances specified in that Table.(2) Special resolution types The maximum amount of costs for the resolution of a claim or dispute as described in Table 3 are the amounts set out in that Table.(3) Additional legal services or other factors—general The maximum amount of costs for an additional legal service or other factor in respect of a resolution as described in items 1–5 of Table 4 is up to the amount or percentage of costs set out in:(a) columns 1 and 3 of items 1–4 of Table 4 for the claimant, and(b) columns 2 and 4 of items 1–4 of Table 4 for the insurer, and(c) column 1 of item 5 of Table 4 for the claimant, and(d) column 2 of item 5 of Table 4 for the insurer.Accordingly and for the avoidance of doubt:(a) an entitlement to costs under item 1, 2 or 3 of Table 4 as certified by the Commission or the Registrar may be added to the costs recoverable under item B, D, E or F of Table 1, and(b) an entitlement to a percentage increase in costs ascertained under item 4 or 5 of Table 4 and as certified by the Commission or the Registrar applies to increase the costs claimable under item D, E or F of Table 1, and(c) an entitlement to costs under item 1, 2 or 3 of Table 4 as certified by the Commission or the Registrar is recoverable by an insurer in respect of a resolution referred to in item B of Table 1 even though no costs may be recoverable by the insurer under that item.(4) Additional legal services or other factors—multiple respondents or lead scheme agent The maximum costs for an additional legal service or other factor as described in items 6 and 7 of Table 4 are up to the percentage applicable for the claimant and insurer as specified.Accordingly and for the avoidance of doubt, an entitlement to a percentage increase in costs ascertained under items 6 and 7 of Table 4 applies to increase the costs claimable under items A to F of Table 1.(5) Table 4 costs not separately claimable Except as referred to in subclause (3) (c), costs specified in Table 4 are recoverable only if costs as described in Table 1 are also recoverable.
5 When Table 1 costs recoverable
Costs specified in clause 4 of this Part are recoverable only on resolution of the claim or dispute concerned.
6 Special provisions for Table 1 costs—dispute about permanent impairment and pain and suffering
(1) An exception to the standard method of determining the appropriate Table 1 costs for a claimant and an insurer based upon the meaning of “resolved” under clause 2 of this Part and the types of resolutions set out in Table 2 applies, where:(a) a claimant has made an application to the Commission to resolve a dispute about permanent impairment and pain and suffering pursuant to sections 66 and 67 of the 1987 Act, and(b) the section 67 claim has been substantiated by:(i) a report, from a medical specialist with qualifications and training relevant to the body system being assessed who has been trained in the WorkCover Guidelines, to the effect that the claimant has sustained 10% or more whole person impairment where:(A) the injury was sustained on or after 1 January 2002, and(B) that report has been served on the insurer, or(ii) a medical report to the effect that the claimant has sustained a loss or losses of 10% or more of the maximum amount referred to in section 66 (1) of the 1987 Act where:(A) the injury was sustained before 1 January 2002, and(B) that report has been served on the insurer, and(c) the medical assessment certificate issued by an approved medical specialist or a Medical Appeal Panel is to the effect that the degree of whole person impairment of the claimant is below 10% or the loss or losses are not 10% or more of the maximum amount referred to in section 66 (1) of the 1987 Act.(2) In a case to which subclause (1) applies:(a) the claimant is entitled to maximum costs in the amount of $4,000, and(b) the insurer is entitled to maximum costs in the amount of $1,875.(3) In this clause:Medical Appeal Panel means an Appeal Panel constituted under section 328 of the 1998 Act.Note—The deduction in respect of an advice to an insurer under item F of Table 3 applies to this costs provision.
7 When Table 3 costs recoverable, and reduction of subsequent Table 1 costs
(1) When Table 3 costs recoverable Costs specified in Table 3 as “Special Resolution Types” are recoverable only:(a) on resolution of the dispute in respect of items A, B and C of that Table, or(b) on registration of the agreement with the Commission in respect of item D of that Table, or(c) when an existing decision of the insurer has been varied as a consequence of a legal service, where it was reasonable to carry out that service in respect of item E of that Table, or(d) when written advice has been provided to the insurer in respect of item F of that Table, or(e) when independent legal advice has been given to a claimant in respect of a complying agreement proposed by an insurer in respect of item G of that Table.(2) Reduction of subsequent Table 1 costs The costs referred to in subclause (1) are not payable or recoverable in conjunction with any other items in this Schedule (with the exception of disbursements under Part 3 or disbursements specified in clause 111) with the result that:(a) if costs have been recovered in respect of item A, B or C of Table 3 and costs subsequently become recoverable under Table 1 in respect of a resolution that relates to the same issue, the entitlement to costs under Table 1 is to be reduced by any payment already made in respect of item A, B or C of Table 3, and(b) if costs have been recovered in respect of item E of Table 3 and costs subsequently become payable under Table 1 in respect of a resolution that relates to the same issue, the entitlement to costs under Table 1 is to be reduced by any payment made in respect of item E of Table 3, and(c) if costs have been recovered in respect of item F of Table 3 and costs subsequently become payable under Table 1 in respect of a claim or dispute relating to the issue addressed in the written advice, the entitlement to costs under Table 1 is to be reduced by any payment made in respect of item F of Table 3 (but the maximum reduction is the amount paid for the first such advice), and(d) if costs have been recovered in respect of item G of Table 3 and costs subsequently become payable under Table 1 in respect of a claim or dispute relating to the issue addressed in the complying agreement, the entitlement to costs under Table 1 is to be reduced by a payment made in respect of item G of Table 3.(3) Subclause (2) (c) does not apply where:(a) payment was for advice given on issues that are not in dispute and thus are not part of the Table 1 resolution, in which case there is to be no deduction, or(b) a period of more than 12 months has elapsed between the giving of the advice and the Table 1 resolution, or(c) the Registrar, on application, determines that the need for the costs to be incurred for the Table 1 resolution could not have been foreseen at the time that costs for the advice were first incurred.No costs are payable or recoverable in respect of an application for the purposes of paragraph (c).(4) Subclause (2) (d) does not apply where a period of more than 12 months has elapsed between the giving of the advice in respect of the complying agreement and the Table 1 resolution.
8 Maximum payable where more than one resolution type
(1) Subject to clause 7 of this Part, where the resolution includes more than one resolution type in Table 2, or includes resolution types in Tables 2 and 3, the following provisions apply:(a) in relation to a claimant:(i) if all resolutions fall within column 1 of Table 1, the single highest amount claimable for a resolution is payable, once only, or(ii) if all resolutions fall within column 2 of Table 1, the single highest amount claimable for a resolution is payable, once only, or(iii) if resolutions fall within both columns 1 and 2 of Table 1, the single highest amount claimable for a resolution is payable, once only, or(iv) if resolutions fall within both Tables 1 and 3, the single highest amount claimable for a resolution is payable, once only,(b) in relation to an insurer:(i) if all resolutions fall within column 3 of Table 1, the single highest amount claimable for a resolution is payable, once only, or(ii) if all resolutions fall within column 4 of Table 1, the single highest amount claimable for a resolution is payable, once only, or(iii) if resolutions fall within both columns 3 and 4 of Table 1, the single highest amount claimable for a resolution is payable, once only, or(iv) if resolutions fall within both Tables 1 and 3, the single highest amount claimable for a resolution is payable, once only.(2) Where subclause (1) applies and additional legal services or other factors set out in Table 4 are also claimable, the Table 4 items are payable up to the highest rate claimable, once only.
9 Maximum payable where more than one claim or dispute
(1) If more than one claim or dispute is resolved in respect of a particular injury, the maximum costs recoverable, regardless of how many resolution types there are, is the maximum as set out in clause 8 of this Part.(2) Subclause (1) does not apply if:(a) a period of more than 12 months has elapsed between each successive resolution in respect of the injury, or(b) the Commission or the Registrar, on application, orders that the resolutions are to be treated as separate resolutions for the purposes of the calculation or assessment of costs.No costs are payable or recoverable in respect of an application for the purposes of paragraph (b).
10 Maximum payable covers all work
The costs allowed under:(a) Table 1 in column 1, 2, 3 or 4 for each type of general resolution, and(b) Table 3 for each type of special resolution, andcover all work performed in the course of the claim, dispute, legal service or factor. This includes but is not limited to conferences, seeking a review of the claim, completing all necessary preparation and documentation, appearances and advocacy, executing and lodging settlement documents, reviewing the determination of the Commission and concluding attendances.(c) Table 4 for additional legal services or other factors,
11 Determination of maximum payable where an upper limit is set
If Table 3 or 4 or Part 3 sets an upper limit for the maximum payable by way of any costs, the maximum payable is to be an amount determined, within the range from and including nil to and including the upper limit, by reference to:(a) any applicable practice direction or Registrar’s guideline, and(b) subject to paragraph (a), the nature and extent of the service performed.
12 Table 2—resolution after teleconference and before further attendance
Where the Commission or the Registrar issues a determination in respect of a resolution type in Table 2, following the initial teleconference and before any further attendances, the costs in relation to that resolution fall within item D of Table 1.
13 Table 3—orders
For the purposes of Table 3, the Commission or the Registrar may order declaring that a particular proceeding is in respect of the resolution of “other proceedings” as referred to in item C of that Table.
14 Special provisions for Table 1 and Table 3 costs—legal advice to claimant on complying agreement
(1) Costs are not recoverable under item A of Table 1 in respect of independent legal advice given to a claimant in respect of a complying agreement proposed by an insurer, if the only service provided to the claimant relates to the giving of that advice.(2) Costs are not recoverable under item G of Table 3 in respect of independent legal advice given to a claimant in respect of a complying agreement proposed by an insurer, unless the only service provided to the claimant relates to the giving of that advice.Note—section 66A (6) of the 1987 Act provides that nothing in section 66A prevents a complying agreement from containing provision as to the payment of costs. Accordingly, a complying agreement may provide for the payment of costs, but the maximum recoverable is subject to Part 2.
15 Country/interstate loadings—Part 3
Country or interstate loadings (including travel and accommodation expenses) are payable in accordance with clause 3 or 4 (as relevant) of Schedule 1 to the Motor Accidents Compensation Regulation 2005, and the provisions of those clauses apply, with any necessary modifications and with any modifications contained in a practice direction or Registrar’s guideline, for that purpose.
16 Certain agents not entitled to costs
(1) No amount is recoverable for costs by an agent who is not an agent as defined in section 356 (6) of the 1998 Act, with the result that the agent is not entitled to be paid or recover any amount for the service or matter concerned.(2) Nothing in this clause prevents an agent who is a legal practitioner from being entitled to be paid or recover any costs.
17 Recovery of certain charges for certain documents from public authorities
Nothing in this Regulation (including this Schedule) prevents the recovery, as a disbursement, of the fee or charge set for any of the following reports, certificates, searches or services by the agency concerned in a claim in respect of a particular injury:(a) a report from a coroner, the NSW Police Force or the Roads and Traffic Authority relevant to the claim,(b) a land title search from Land and Property Information NSW relevant to the claim,(c) a certificate from the Registry of Births, Deaths and Marriages relevant to the claim,(d) an application under the Freedom of Information Act 1989 relevant to the claim,(e) a company or business name search from the Australian Securities and Investments Commission relevant to the claim.
18 Costs unreasonably incurred
Where the Commission is satisfied that a party’s costs have been unreasonably incurred in accordance with section 342 of the 1998 Act, the maximum amount of recoverable costs, if any, is restricted to the costs recoverable in the phase where the circumstances referred to in section 342 (2) of that Act arose and is not to include any further costs.
Part 2 Costs
Table 1 General resolution types—costs payable
Item | General resolution (for general resolution types refer to Table 2) | Claimant | Insurer | ||
Column 1 75% | Column 2 100% | Column 3 75% | Column 4 100% | ||
A | Lump sum compensation claim or dispute resolved • before application accepted by the Registrar | $2,846.25 | $3,766.25 | $1,811.25 | N/A |
B | Lump sum compensation claim or dispute resolved • after application accepted by the Registrar and up to and including the issue of a Certificate of Determination | $4,053.75 | $5,376.25 (or $4,600.00 where clause 6 of Part 1 applies) | $2,932.50 (or $2,156.25 where clause 6 of Part 1 applies) | N/A |
C | Other compensation claim or dispute resolved • after dispute notice issued and before application accepted by the Registrar, or • before application accepted by the Registrar in relation to a claim for compensation in respect of the death of a worker | $3,289.00 | $4,352.75 | $2,696.75 | $3,565.00 |
D | Other compensation dispute resolved • after application accepted by the Registrar, and up to and including the initial teleconference including consequential settlement attendances | $4,450.50 | $5,905.25 | $3,858.25 | $5,117.50 |
E | Other compensation dispute resolved • after initial teleconference and up to and including conciliation conference including consequential settlement attendances | $4,887.50 | $6,491.75 | $4,214.75 | $5,589.00 |
F | Other compensation dispute resolved • following conciliation conference and up to and including arbitration hearing | $5,307.25 | $7,043.75 | $4,525.25 | $6,008.75 |
Table 2 General resolution types—applicable rate
Item | General resolution types | Column 1 75% | Column 2 100% |
Lump sum compensation resolutions | |||
1 | Lump sum compensation for permanent impairment under section 66 of the 1987 Act (excluding any claim for pain and suffering under section 67 of that Act) where: • the extent of impairment is the only issue, or • a dispute notice has not been issued | 75% | — |
2 | Lump sum compensation for pain and suffering under section 67 of the 1987 Act (Item A or B of Table 1) | 75% | — |
3 | Lump sum compensation under section 16 of the 1926 Act where: • the extent of impairment (or loss) is the only issue, or • a dispute notice has not been issued | 75% | — |
4 | Lump sum compensation for permanent impairment under section 66 of the 1987 Act and for pain and suffering under section 67 of that Act where: • the extent of impairment and pain and suffering are the only issues, or • a dispute notice has not been issued | — | 100% |
Other compensation resolutions | |||
5 | Lump sum compensation for permanent impairment where: • a dispute notice has been issued, or • the matter is referred by the Registrar for determination by an arbitrator | — | 100% |
6 | Weekly payments compensation for a period not exceeding 12 weeks in total, excluding interim payment directions under Chapter 7, Part 5, of the 1998 Act (Item C, D, E or F of Table 1) | 75% | — |
7 | Weekly payments compensation for a period exceeding 12 weeks in total, being a period in respect of which an interim payment direction under Chapter 7, Part 5, of the 1998 Act has not been made (Item C, D, E or F of Table 1) | — | 100% |
8 | Termination or reduction of weekly payments compensation (on a review under section 55 of the 1987 Act) (Insurer only—item C, D, E or F of Table 1) | — | 100% |
9 | Successfully defending an application to terminate or reduce weekly payments compensation (Claimant only—item C, D, E or F of Table 1) | — | 100% |
10 | Increase in weekly payments compensation (on a review under section 55 of the 1987 Act) (Claimant only—item C, D, E or F of Table 1) | — | 100% |
11 | Defending an application to increase weekly payments compensation (on a review under section 55 of the 1987 Act) (Insurer only—item C, D, E or F of Table 1) | — | 100% |
12 | Medical expenses compensation not exceeding $7,500.00, excluding interim payment directions under Chapter 7, Part 5, of the 1998 Act (Item C, D, E or F of Table 1) | 75% | — |
13 | Medical expenses compensation exceeding $7,500.00 (Item C, D, E or F of Table 1) | — | 100% |
14 | Compensation in respect of the death of a worker under Part 3, Division 1, of the 1987 Act where: • the respondent admits liability, and • there is no dispute regarding dependency | 75% | — |
15 | Compensation in respect of the death of a worker under Part 3, Division 1, of the 1987 Act where: • the respondent disputes liability, and/or • the respondent disputes dependency | — | 100% |
16 | Reduction in liability of employer to reimburse the Insurance Fund under section 145 of the 1987 Act by determination of the Commission or agreement after referral (Item D, E or F of Table 1) | 75% | — |
Table 3 Special resolution types—costs payable
Item | Special resolution types | Application on behalf of claimant | Application on behalf of insurer | |||
Column 1 Claimant | Column 2 Insurer | Column 3 Claimant | Column 4 Insurer | |||
A | Interim payment dispute resolved | |||||
1 | Dispute resolved by direction or agreement, after application accepted by the Registrar | $1,897.50 | $1,610.00 | N/A | N/A | |
2 | If further dispute about the same claim is resolved by direction or agreement, after application accepted by the Registrar | $632.50 | $632.50 | N/A | N/A | |
B | Workplace injury management dispute resolved | |||||
1 | Dispute resolved by direction, recommendation, determination or agreement, after application accepted by the Registrar | $2,213.75 | $1,926.25 | $2,213.75 | $1,926.25 | |
2 | If further dispute about the same claim is resolved by direction, recommendation, determination or agreement, after application accepted by the Registrar | $632.50 | $632.50 | $632.50 | $632.50 | |
C | Resolution of other proceedings | |||||
1 | As ordered or certified by the Commission or the Registrar | Upper limit of $1,265.00 | Upper limit of $1,265.00 | Upper limit of $1,265.00 | Upper limit of $1,265.00 | |
D | Registration of commutation agreement | |||||
1 | Where agreement approved by WorkCover Authority and registered with the Registrar (including all preparation and documentation in approved form in accordance with Rules) | $1,725.00 | $1,725.00 | $1,725.00 | $1,725.00 | |
Item | Special resolution types | Claimant | |
E | Legal service to claimant before dispute notice | ||
1 | Where an insurer’s decision on the existing entitlement to weekly payments is varied to the worker’s benefit by an increase of 5% or more in weekly payments as a consequence of a legal service, where it was reasonable to carry out that service | Upper limit of $1,265.00 | |
Item | Special resolution types | Insurer | |
F | Written advice provided at the request of the insurer | ||
1 | Where: • the legal advice to an insurer is the provision of written advice at the request of the insurer before the issue of a dispute notice, and • costs are not recoverable under Table 1 in respect of the claim or dispute the subject of that advice | Upper limit of $948.75 | |
G | Advice in respect of complying agreement | ||
1 | Where independent legal advice given to a claimant in respect of a complying agreement proposed by an insurer under section 66A of the 1987 Act (Subject to clause 7 of Part 1) | $948.75 | |
Table 4 Additional legal services or other factors
Item | Additional legal services or other factors | Application on behalf of claimant | Application on behalf of insurer | ||
Column 1 Claimant | Column 2 Insurer | Column 3 Claimant | Column 4 Insurer | ||
1 | Appeal against an arbitral decision to Presidential member | ||||
Appeal resolved by decision of Presidential member | (a) Nil if unsuccessful | Upper limit of $2,530.00 | Upper limit of $2,530.00 | (a) Nil if unsuccessful | |
Costs to be as ordered or certified by the Presidential member and may encompass all parties’ costs | (b) Upper limit of $2,530.00 if successful | (b) Upper limit of $2,530.00 if successful | |||
2 | Question of law determined by the President | ||||
Matter resolved by the decision of the President | Upper limit of $2,530.00 | Upper limit of $2,530.00 | Upper limit of $2,530.00 | Upper limit of $2,530.00 | |
Costs to be as ordered or certified by the President and may encompass all parties’ costs | |||||
3 | Appeal against a medical assessment under Chapter 7, Part 7, of the 1998 Act | ||||
Appeal resolved by the decision of Appeal Panel | (a) Nil if result is not more favourable | Upper limit of $1,265.00 | Upper limit of $1,265.00 | (a) Nil if result is not more favourable | |
Costs to be as ordered or certified by the Commission or the Registrar and may encompass all parties’ costs | (b) Upper limit of $1,265.00 if result is more favourable | (b) Upper limit of $1,265.00 if result is more favourable | |||
4 | Dispute determined or otherwise resolved after proceedings have been commenced in the Commission | ||||
If: • the Commission or the Registrar certifies the matter as complex, and • neither item 6 nor 7 of this Table also applies | Percentage increase—upper limit of 30% of costs at item D, E or F of Table 1 | Percentage increase—upper limit of 30% of costs at item D, E or F of Table 1 | Percentage increase—upper limit of 30% of costs at item D, E or F of Table 1 | Percentage increase—upper limit of 30% of costs at item D, E or F of Table 1 | |
Item | Additional legal services or other factors | Column 1 | Column 2 |
Claimant | Insurer | ||
5 | Dispute determined or otherwise resolved after proceedings have been commenced in the Commission | ||
If: • the Commission or the Registrar certifies the matter as complex, and • item 6 or 7 of this Table would otherwise have application | Percentage increase—upper limit of 45% of costs at item D, E or F of Table 1 | Percentage increase—upper limit of 45% of costs at item D, E or F of Table 1 |
Item | Additional legal services or other factors | Claimant |
6 | Costs associated with multiple respondents | |
If the claim or dispute is resolved by an award or settlement apportioned between more than one respondent Note— This allowance does not apply to any resolution that has an increase in fees under item 4 or 5 of this Table. | Percentage increase—upper limit of 30% of costs payable under Table 1 and items 1, 2 and 3 of this Table Note— The increase does not apply for each additional respondent. Accordingly, 30% is the maximum allowable increase notwithstanding the number of respondents. |
Item | Additional legal services or other factors | Insurer |
7 | Costs associated with acting for lead scheme agent | |
If the claim or dispute is resolved by a scheme agent on behalf of multiple scheme agents Note— This allowance does not apply to any resolution that has an increase in fees under item 4 or 5 of this Table. | (a) Lead scheme agent: percentage increase—upper limit of 30% of costs payable under Table 1 and items 1, 2 and 3 of this Table (b) Other agents: no costs recoverable Note— The increase referred to in paragraph (a) does not apply for each additional scheme agent, and accordingly 30% is the maximum allowable increase notwithstanding the number of scheme agents who are parties to the resolution. |
Part 3 Regulated disbursements
Item | Disbursement | Applicable provisions |
1 | Country/interstate loadings (including travel and accommodation expenses) | Payable in accordance with the Motor Accidents Compensation Regulation 2005, Schedule 1, clause 3 or 4 (as relevant) Note— Clause 15 of Part A applies for this purpose. |
2 | Conduct money to comply with notice for the production of documents | Where the producer is a party other than the worker—nil payable Where the producer is the worker—an amount sufficient to meet the reasonable expenses of complying with the notice is payable |
3 | Conduct money to comply with direction for the production of documents | An amount sufficient to meet the reasonable expenses of complying with the direction is payable In the case of medical practitioners, the term “sufficient to meet the reasonable expenses” is an amount calculated in accordance with the AMA Resource-Based Relative Value Scale as in force from time to time In the case of production by a government agency—the standard rate applied by that agency is payable |
4 | Treating health service provider’s report | If a claim or dispute is resolved whether before or after proceedings commenced: Claimant: (a) nil fee payable, unless paragraph (b) applies, or (b) fee allowed in accordance with any applicable fee order where: Insurer: fee allowed in accordance with any applicable fee order |
5 | Report of independent medical examination by an appropriately qualified and experienced medical practitioner in accordance with WorkCover Guidelines Fee allowed in accordance with any applicable fee order where paragraph (a) or (b) opposite applies Note— A supplementary report that complies with clause 66 gives rise to a further entitlement to costs under this item, if the supplementary report otherwise satisfies the provisions of this item. | (a) If a claim or dispute is resolved before proceedings are commenced—a report of the kind referred to in clause 65 has been served on the other party (b) If a dispute is resolved after proceedings are commenced—a report of the kind referred to in clause 65 has been admitted in the proceedings or disclosed to an approved medical specialist |
6 | Treating health service provider’s clinical notes and records | If a claim or dispute is resolved whether before or after proceedings commenced: Claimant: (a) nil fee payable, unless paragraph (b) applies, or (b) payment in accordance with AMA Resource-Based Relative Value Scale as in force from time to time or any applicable fee order (the latter to prevail over the former) where: Insurer: (a) nil fee payable if clinical notes and records are served by claimant under paragraph (b) above, or (b) otherwise, payment in accordance with AMA Resource-Based Relative Value Scale as in force from time to time or any applicable fee order (the latter to prevail over the former) |
7 | Fee for the provision of independent financial advice by a qualified financial adviser for a commutation by agreement that is approved by the Authority and registered with the Commission | Upper limit of $1,150.00, on the production of account or receipt |
sch 6: Am 2011 No 27, Sch 2.65; 2012 (480), Sch 1 [7].
Schedule 7 Maximum costs for legal services—work injury damages matters
1 Costs determined by reference to certain stages in the matter
(1) The maximum costs for legal services provided for a stage of a claim for work injury damages set out in Column 1 of the Work Injury Costs Table A to this clause are the costs set out in Column 2 opposite that stage.(2) However, if a legal practitioner was first retained in the matter after a certificate as to mediation was issued under section 318B of the 1998 Act (or, if the matter is not referred to mediation because the insurer wholly denies liability, or the insurer has failed to respond to the pre-filing statement, after the service of the pre-filing statement of claim), the maximum costs are those set out in the Work Injury Costs Table B to this clause.(3) Costs may be charged for more than one stage described in this Schedule.(4) Other than stage 1 in the Work Injury Costs Table B to this clause, each stage specifies the maximum costs payable for all legal services provided in the period commencing on the occurrence of one specified event and concluding on either the occurrence of another specified event or settlement of the matter (whichever occurs first).(5) A reference in this Schedule to an amount of a settlement or an award is a reference to the amount inclusive of any weekly payment of compensation under Division 2 of Part 3 of the 1987 Act.Work Injury Costs Table A
2 Other costs for legal services
(1) Maximum costs for legal services provided in a claim for work injury damages may include (in addition to the costs for legal services referred to in clause 1) the costs set out in the Other Work Injury Costs Table to this clause.(2) However, an amount for the fees for senior counsel, or for more than one advocate, are not to be included unless the court so orders.Other Work Injury Costs Table
Schedule 8 Savings and transitional provisions
1 Interpretation
(1) Words and expressions used in this Part have the same meaning as in Part 19H of Schedule 6 to the 1987 Act.(2) The provisions of Part 19H of Schedule 6 to the 1987 Act are deemed to be amended to the extent necessary to give effect to this Part.
2 Weekly payments amendments—seriously injured workers
(1) If a worker is a seriously injured worker and a claim for compensation in respect of the worker’s injury was made before 17 September 2012, the following provisions apply:(a) the weekly payments amendments apply to the compensation payable to the worker in respect of the injury (while the worker is a seriously injured worker) on and from 17 September 2012,(b) the amount of the weekly payments of compensation payable to the worker pursuant to the weekly payments amendments is not to be less than the amount of the weekly payments of compensation that would have been payable to the worker had the weekly payments amendments not applied to the worker (having regard to the period for which the worker has been entitled to weekly payments and the effect this has on entitlement to weekly payments or the amount of weekly payments),(c) the adjustment of the transitional amount (which the worker’s pre-injury average weekly earnings are deemed to equal)) under section 80 of the 1987 Act that occurs on 1 October 2012 is backdated to have effect on and from 17 September 2012 in respect of the compensation payable to the seriously injured worker on and from 17 September 2012,(d) the amount of the weekly payments of compensation that would have been payable to the seriously injured worker had the weekly payments amendments not applied to the worker is to be determined as if the adjustment of any relevant amount under Division 6 of Part 3 of the 1987 Act that occurs on 1 October 2012 were backdated to have effect on and from 17 September 2012 in respect of the compensation payable to the worker on and from 17 September 2012.(2) For the purposes of the application of the weekly payments amendments to a seriously injured worker whose claim for compensation was made before 1 October 2012, the worker’s pre-injury average weekly earnings are deemed to be equal to the transitional amount whether or not the worker is an existing recipient of weekly payments.
3 Weekly payments amendments—other than seriously injured workers
(1) If a claim for compensation in respect of a worker’s injury was made before 1 October 2012, the weekly payments amendments and the relevant transitional arrangements do not apply to the compensation payable in respect of the injury until 1 January 2013.Note—In the case of a claim made on or after 1 October 2012, the weekly payments amendments apply to the claim from when the claim is made.(2) This clause does not apply to a seriously injured worker.(3) In this clause:relevant transitional arrangements means the provisions of Division 2 (Weekly payments) of Part 19H of Schedule 6 to the 1987 Act.
4 5 year limit on weekly payments
For the purposes of the application of section 39 (Cessation of weekly payments after 5 years) of the 1987 Act, as substituted by the 2012 amending Act, in respect of a claim made before 1 October 2012, no regard is to be had to any weekly payment of compensation paid or payable to the worker before 1 January 2013 (for the purpose of determining the aggregate period in respect of which a weekly payment has been paid or is payable to the worker).Note—Section 39 limits the payment of weekly payments of compensation to a period of 5 years. This clause ensures that for claims made before 1 October 2012, weekly payments made before 1 January 2013 will not be counted towards the 5 years.
5 Limit on payment of medical, hospital and rehabilitation expenses
In the application of section 59A (Limit on payment of compensation) of the 1987 Act in respect of a claim for compensation made before 1 October 2012:(a) the claim is deemed to have been made immediately before 1 January 2013, and(b) no regard is to be had to any weekly payment of compensation paid or payable to the worker before 1 January 2013 (for the purpose of determining when a worker ceased to be entitled to weekly payments of compensation).Note—Section 59A limits the payment of compensation to a period of 12 months after a claim for compensation is made or 12 months after weekly payments of compensation cease. This clause ensures that for claims made before 1 October 2012 the 12 month period will commence no earlier than 1 January 2013.
6 Giving of notice when liability disputed
Despite the substitution of section 74 of the 1998 Act by the 2012 amending Act, that section as in force before 1 October 2012 continues to apply to a notice given under that section before 1 January 2013 in respect of a claim for compensation made before 1 October 2012.
7 Stay of work capacity decisions during review
(1) A review by the Independent Review Officer under section 44 of the 1987 Act of a work capacity decision operates to stay the decision but only if the application for review is made before 1 April 2013.(2) The decision is stayed from the time the application for review is made until the earlier of:(a) the date the worker is notified of the findings of the review (or the application for review is withdrawn), or(b) 30 June 2013.(3) Section 44 (4) of the 1987 Act is deemed to be amended to the extent necessary to give effect to this clause.
8 Awarding of costs by Commission
Division 3 (Special provisions for costs in compensation and damages assessment matters) of Part 8 of the 1998 Act continues to apply (as in force before the amendment of that Division by the 2012 amending Act) to costs in relation to a claim for compensation made before 1 October 2012 if proceedings on the claim are commenced in the Commission before 31 March 2013.
9 Review of work capacity decisions—legal costs of insurers
A legal practitioner is not entitled to be paid or recover any amount for a legal service provided to an insurer in connection with an internal or other review under section 44 of the 1987 Act in relation to a work capacity decision of the insurer.
10 Nervous shock claims
An amendment made by Schedule 3 to the 2012 amending Act extends to a claim for damages in respect of harm arising from mental or nervous shock suffered before 19 June 2012 but does not apply to a claim for damages if the claimant commenced court proceedings for the recovery of those damages before 19 June 2012.
11 Lump sum compensation
(1) The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act.(2) Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).
12 Employer improvement notices
Part 3 of Chapter 3 of the 1998 Act applies only in relation to a contravention of Chapter 3 of the 1998 Act that occurs after the commencement of that Part.
13 Determination of degree of permanent impairment—Table of Disabilities
(1) The fact that a worker’s injury was received before the commencement of the 2001 lump sum compensation amendments does not prevent the degree of permanent impairment of the injured worker from being assessed for the purpose of determining whether the worker is a seriously injured worker under Division 2 of Part 3 of the 1987 Act.(2) In this clause, the 2001 lump sum compensation amendments means the amendments made by Schedule 3 to the Workers Compensation Legislation Amendment Act 2001 and Schedule 2 to the Workers Compensation Legislation Further Amendment Act 2001.
14 Maximum legal costs
The substitution of Parts 2 and 3 of Schedule 6 (Maximum costs—compensation matters) to this Regulation by the Workers Compensation Amendment (Transitional) Regulation 2012 does not apply in respect of legal services provided before 1 October 2012.
15 1926 Act claims—weekly payments amendments not to apply
The amount of a weekly payment of compensation payable under Division 2 of Part 3 of the 1987 Act in respect of any period of incapacity that resulted from an injury received before the commencement of that Division is be determined as if the weekly payments amendments had not been made.
16 Continuation of weekly payments after second entitlement period—exemptions from application requirement
(1) Section 38 (3) (a) of the 1987 Act does not apply in respect of a claim for compensation made before 1 October 2012 if the second entitlement period for the claim expires before, or less than 1 month after, the weekly payments amendments first apply in respect of the claim.Note—Section 38 (3) (a) requires a worker to apply before the end of the second entitlement period for the continuation of weekly payments after the second entitlement period. Subclause (1) removes the need for such an application if the second entitlement period ends less than 1 month before section 38 (3) (a) would become applicable to the claim.(2) Section 38 (3) (a) of the 1987 Act does not apply in respect of a worker who is an existing recipient of weekly payments if:(a) the second entitlement period for the claim expires less than 1 month after the insurer notifies the worker (as required by the WorkCover Guidelines) of the requirement under section 38 of the 1987 Act that the worker must apply to the insurer in writing before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, or(b) the insurer fails to notify the worker of that requirement as required by the WorkCover Guidelines.(3) A worker who, by virtue of subclause (1) or (2), is not required to apply before the end of the second entitlement period for continuation of weekly payments after the second entitlement period is, within 18 months of being assessed as having current work capacity, required to apply to the insurer in writing (in the form approved by the Authority) for continuation of weekly payments in order for the worker to continue to be entitled to weekly payments compensation.
17 Period for making work capacity assessment of existing recipients of weekly payments
A period of 18 months is prescribed for the purposes of clause 8 (2) of Part 19H of Schedule 6 to the 1987 Act.Note—This clause makes 18 months the period within which an insurer must conduct a work capacity assessment of an existing recipient of weekly payments (instead of the period of 12 months currently required by clause 8 (2) of Part 19H of Schedule 6 to the 1987 Act).
18 Lump sum compensation for hearing loss—injury before 1.1.2002
Section 69A of the 1987 Act (as in force before its repeal by the 2012 amending Act) continues to apply, despite its repeal, to a claim for compensation made on or after 19 June 2012 for loss of hearing resulting from an injury received before 1 January 2002.
19 Only one claim for permanent impairment compensation—injuries received before 1.1.2002
(1) In the application of section 66 (1A) of the 1987 Act to a claim resulting from an injury received before 1 January 2002:(a) a reference in that subsection to permanent impairment compensation is taken to be a reference to lump sum compensation payable under Division 4 of Part 3 of the 1987 Act (as in force immediately before 1 January 2002), and(b) a reference in that subsection to permanent impairment is taken to be a reference to an injury of a kind to which any such lump sum compensation applies.(2) Section 66 (1A) of the 1987 Act is deemed to be amended to the extent necessary to give effect to this clause.
20 Discontinuation of certain entitlements
An existing recipient of weekly payments who has an entitlement arising under clause 9 (2) or 11 of Part 19H of Schedule 6 to the 1987 Act ceases to have that entitlement if, at any time after the commencement of the weekly payments amendments:(a) the worker ceases to be entitled to weekly payments of compensation, or(b) the worker no longer meets the criteria to be paid weekly payments of compensation under the provisions of Division 2 of Part 3 of the 1987 Act (as in force immediately before the commencement of the weekly payments amendments) in respect of which weekly payments of compensation were paid to the worker.
21 Notice of increase in weekly payments of compensation
If an existing recipient of weekly payments is receiving weekly payments of compensation in respect of a claim made before 1 October 2012, the person paying the compensation must, at least 3 months before increasing the amount of compensation payable to the worker, notify the worker in writing of the proposed increase and the date on which it is to take effect.
22 Application of weekly payments amendments to existing recipients of weekly payments
(1) On the expiration of a period of 3 months after an insurer makes a work capacity decision arising from the first work capacity assessment (as required by Division 2 of Part 19H of Schedule 6 to the 1987 Act) of an existing recipient of weekly payments, the weekly payments amendments apply to the compensation payable under Division 2 of Part 3 of the 1987 Act to the worker in respect of any period of incapacity after the expiration of that period.Note—Clause 9 (1) of Part 19H of Schedule 6 to the 1987 Act provides that the weekly payments amendments apply to an existing recipient of weekly payments 3 months after an insurer first conducts a work capacity assessment of the worker. Subclause (1) provides instead for the amendments to apply to such a worker 3 months after the insurer makes a work capacity decision in respect of the worker.(2) However, if, in the case of an existing recipient of weekly payments, the worker returns to work before the expiration of the 3-month period referred to in subclause (1), the weekly payments amendments apply, as from the date on which the worker returns to work, to the compensation payable under Division 2 of Part 3 of the 1987 Act to the worker in respect of any period of incapacity after that return to work.
23 Work capacity decision to be made as soon as practicable after assessment
An insurer must, for the purposes of Division 2 of Part 19H of Schedule 6 to the 1987 Act, make a work capacity decision in respect of an existing recipient of weekly payments as soon as practicable after the first work capacity assessment of the worker is conducted by the insurer as required by that Division.
24 Existing recipients of weekly payments who reach retiring age
An existing recipient of weekly payments who reaches the retiring age (within the meaning of section 52 of the 1987 Act) on or after 1 October 2012 but before 1 January 2013 is, subject to meeting the requirements under Subdivision 2 of Division 2 of Part 3 of the 1987 Act, entitled to 12 months’ weekly payments from the date on which the person reaches that age.
sch 8: Ins 2012 (468), Sch 1 [3]. Am 2012 (480), Sch 1 [5]; 2012 (665), Sch 1 [1] [2].