Workplace Injury Management and Workers Compensation Regulation 2002

Part 1 Preliminary

1 Name of Regulation

This Regulation is the Workplace Injury Management and Workers Compensation Regulation 2002.

2 Commencement

This Regulation commences on 1 September 2002.

Note—

This Regulation replaces the Workers Compensation (Workplace Injury Management) Regulation 1995, which is repealed on 1 September 2002 under section 10 (2) of the Subordinate Legislation Act 1989.

3 Definitions

(1)  In this Regulation:

accreditation means accreditation as a provider of rehabilitation services.

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.

guidelines means the guidelines 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 plan of the employer’s insurer) for the rehabilitation (and, if necessary, vocational re-education) of any injured workers of the employer.

standards for rehabilitation providers means standards relating to the provision of rehabilitation services approved by the Authority.

the 1987 Act means the Workers Compensation Act 1987.

the 1998 Act means the Workplace Injury Management and Workers Compensation Act 1998.

(2)  Notes in the text of this Regulation do not form part of this Regulation.

Part 2 Modification of provisions applying to self-insurers

4 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.

5 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.

cll 5: Am 2004 No 106, Sch 2.9.

6 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).

7 Preparation of injury management plan

Section 45 (1) of the 1998 Act is replaced with the following subsection:

  

(a)  When it appears that a workplace injury is a significant injury, an injury management plan must be established for the injured worker by:

(i)  the Self Insurance Corporation, when 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, or

(ii)  when 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.

cll 7: Am 2004 No 106, Sch 2.9.

8 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 3 Offences against Chapter 3 of the 1998 Act

9 Employer must give early notification of significant 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.

Part 4 Return-to-work programs

10 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.

11 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.

12 Standard return-to-work programs for category 2 employers

(1)  The Authority may prepare (in accordance with the 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 form approved by the Authority under section 65 (1) (b) of the 1998 Act a copy of any standard return-to-work program prepared under this clause.

13 Program to comply with guidelines etc

(1)  An employer is not to be regarded as having established a return-to-work program unless the program complies with the 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 12 is to be regarded as having duly established a return-to-work program.

14 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 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.

15 Nomination in programs of accredited providers of rehabilitation services

(1)  A return-to-work program must, if the guidelines so require, nominate an accredited provider of rehabilitation services (or a list of such accredited providers) for the purposes of the program.

(2)  Consultation on the nomination of an accredited provider of rehabilitation services is to be carried out in such circumstances and in such manner as the guidelines may provide.

16 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.

17 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 applies for compensation for any injury, or

(b)  if the employer makes other satisfactory arrangements to ensure that workers have access to a copy of the program.

18 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 guidelines may require, or

(b)  engage a person in accordance with such arrangements as the 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 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 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 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).

19 Functions of return-to-work co-ordinators

An employer’s return-to-work co-ordinator has such functions as may be specified in the guidelines.

20 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 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 guidelines with respect to the establishment of a single return-to-work program for groups of employers.

(2)  The 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.

Part 5 Accreditation of rehabilitation providers

21 Application for certificate of accreditation

(1)  A person may apply to the Authority for a certificate of accreditation.

(2)  Two or more persons jointly providing, or intending to jointly provide, rehabilitation services may (but are not required to) apply for a joint certificate of accreditation.

(3)  An application must:

(a)  be in the form approved by the Authority, 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.

22 Determination of application

(1)  The Authority is to determine an application for a certificate of accreditation:

(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 accreditation, 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 accreditation to natural persons, and

(ii)  the capacity of the applicant to comply with the standards for rehabilitation providers, 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)  Before dealing with an application under this clause, the Authority may refer the application to the Council for a report and recommendation.

(4)  The Authority must not grant a certificate unless:

(a)  the Authority has considered the Council’s report and recommendation (if any) on the application, and

(b)  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

(c)  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.

23 Form of certificate of accreditation

(1)  A person may be granted a certificate of accreditation in respect of one or more of the following classes of accreditation:

(a)  a workplace based occupational rehabilitation provider,

(b)  a regional occupational rehabilitation centre,

(c)  a specialist occupational rehabilitation provider.

(2)  A certificate is to be in the form approved by the Authority 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 accreditation for which the certificate is granted, and

(c)  in the case of a certificate in respect of the class referred to in subclause (1) (b)—the premises comprising the regional occupational rehabilitation centre.

24 Conditions of certificate

(1)  It is a condition of every certificate of accreditation that the holder of the certificate must:

(a)  comply with the standards for rehabilitation providers which are appropriate for the class or classes of accreditation for which the certificate is granted, being standards of which the holder has been notified, and

(b)  in the case of a certificate in respect of the class referred to in clause 23 (1) (b)—give the Council at least 1 month’s notice of any proposed change of address of the regional occupational rehabilitation centre.

(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.

25 Amendment of certificate

(1)  If a person who does not hold a certificate of accreditation proposes to provide a rehabilitation service jointly with the holder of a certificate, the person may apply to the Authority for the certificate to be amended by the addition of that person as a joint holder of the certificate.

(2)  If a joint holder of a certificate ceases to provide rehabilitation services with any other joint holder of the certificate, any of the joint holders may apply to the Authority for the amendment of the certificate by the deletion of the name of a joint holder.

(3)  The holder of a certificate may apply to the Authority for the specification of the class or classes of accreditation for which the certificate is granted to be amended.

(4)  The holder of a certificate of a class referred to in clause 23 (1) (b) may apply to the Authority for the certificate to be amended by the substitution of the premises of the regional occupational rehabilitation centre.

(5)  An application under this clause must:

(a)  be in the form approved by the Authority, and

(b)  contain such particulars and be accompanied by such documents as may be specified in that form, and

(c)  be accompanied by a fee of $50.

(6)  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.

(7)  Before dealing with an application under this clause, the Authority may refer the application to the Council for a report and recommendation.

(8)  The Authority is not to grant an application for the amendment of a certificate:

(a)  if the Authority would not have granted a certificate as so amended had an application been made for such a certificate under this Regulation, and

(b)  unless the Director-General of the Department of Health has concurred in the granting of the application.

(9)  If an application referred to in subclause (1) 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.

26 Notice of refusal

(1)  If the Authority refuses to grant or amend a certificate of accreditation, 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.

27 Duration of certificates

(1)  A certificate of accreditation 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.

28 Surrender of certificates

A holder of a certificate of accreditation may surrender it by delivering it to the Authority with notice in writing that the certificate is surrendered.

29 Duplicate certificates

If the Authority is satisfied that a certificate of accreditation has been lost or destroyed, the Authority may, on payment of a fee of $10, issue a duplicate certificate.

30 Register of certificates

(1)  The Authority is to cause a register of certificates of accreditation 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 a fee of $4.

31 False or misleading statements

A person must not, in or in connection with an application for a certificate of accreditation 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.

32 Cancellation or suspension of certificate

(1)  The Authority may cancel or suspend a certificate of accreditation 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 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)  Before determining whether a certificate of accreditation should be cancelled or suspended, the Authority may refer the matter to the Council for a report and recommendation.

(3)  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 rehabilitation services in partnership—if those grounds apply to any holder of any of those certificates.

(4)  Before cancelling or suspending a certificate, the Authority must give the holder of the certificate an opportunity of showing cause why the certificate should not be cancelled or suspended on such grounds as are notified to the holder.

(5)  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.

33 False claim of accreditation

A person must not falsely hold himself or herself out as being the holder of a certificate of accreditation.

Maximum penalty: 20 penalty units.

Part 6 Miscellaneous

34 Penalty notice offences

For the purposes of section 246 of the 1998 Act:

(a)  each offence created by a provision specified in Column 1 of Schedule 1 is declared to be a penalty notice offence, and

(b)  the prescribed penalty for such an offence is the amount specified opposite it in Column 2 of Schedule 1, 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 238 of the 1998 Act,

(ii)  each inspector appointed under section 47 of the Occupational Health and Safety Act 2000.

35 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 18:

(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).

36 Savings and transitional provisions

(1)  Any act, matter or thing that, immediately before the repeal of the Workers Compensation (Workplace Injury Management) Regulation 1995, had effect under that Regulation is taken to have effect under this Regulation.

(2)  A workplace rehabilitation program established under section 152 of the 1987 Act and in force immediately before the repeal of that section is taken to be a return-to-work program established under section 52 of the 1998 Act. However, any such program does not have effect to the extent that it is inconsistent with the injury management program of the employer’s insurer.

(3)  Part 2A (Return to work plans) of the Workers Compensation (Workplace Injury Management) Regulation 1995, as in force immediately before the repeal of that Part, continues to have effect in respect of injuries that happened before the commencement of Chapter 3 of the 1998 Act.

(4)  If an injury management plan has been prepared in compliance with section 45 of the 1998 Act in respect of an injury to a worker that happened before the commencement of Chapter 3 of the 1998 Act (and has been so prepared within the time within which a return-to-work plan under Part 2A of the Workers Compensation (Workplace Injury Management) Regulation 1995 would have otherwise been required to be prepared):

(a)  subclause (3) does not apply in respect of the injury, and

(b)  despite section 41 (2) of the 1998 Act, sections 45 (7), 46, 47, 55, 56 and 57 of the 1998 Act apply in respect of the injury.

(5)  Despite section 41 (2) of the 1998 Act, a reference in section 52, 53 and 54 of the 1998 Act to an injured worker is to be read as including a reference to an injured worker when the injury happened before the commencement of Chapter 3 of the 1998 Act.

37 Repeal

The Workplace Injury Management and Workers Compensation Regulation 1999 is repealed.

Schedule 1 Penalty notice offences

(Clause 34)

Column 1	Column 2
Provision	Penalty $
Clause 9	250 (category 2 employer)
	500 (category 1 employer)
Clause 11	50 (category 2 employer)
	200 (category 1 employer)
Clause 16	20 (category 2 employer)
	100 (category 1 employer