Workers Compensation Act 1987

This Act may be cited as the Workers Compensation Act 1987.

Sections 1 and 2 and Parts 19 and 20 of Schedule 6 shall commence on the date of assent to this Act.

Except as provided by subsection (1), this Act shall commence on such day or days as may be appointed by the Governor and notified by proclamation published in the Gazette.

The Workplace Injury Management and Workers Compensation Act 1998 is referred to in this Act as the 1998 Act.

This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act.

In the event of an inconsistency between this Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency.

(cf former s 6 (1), (2), (13))

In this Act, words and expressions have the same meanings as they have in the 1998 Act, unless this Act provides otherwise.

In this Act—

act of violence has the same meaning as in the Victims Rights and Support Act 2013.

agency arrangement means the contract or other arrangement by which a scheme agent is appointed.

AIDS means Acquired Immune Deficiency Syndrome.

Authority means the State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015.

AWE means the average weekly total earnings of adults in full-time employment in New South Wales issued by the Australian Bureau of Statistics.

bullying—see section 8A.

CPI means the consumer price index for Sydney issued by the Australian Bureau of Statistics.

excessive work demands—see section 8B.

former Act means the Workers’ Compensation Act 1926.

former licensed insurer means a person (not being a licensed insurer) who—

was previously a licensed insurer under this Act or under section 27 of the former Act, and

continues to have liabilities under policies of insurance previously issued or renewed by the person.

group means the employers who constitute a group under Division 2A of Part 7.

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth.

Guarantee Fund means the Insurers’ Guarantee Fund established under section 227.

HIV means Human Immunodeficiency Virus.

ICNSW means Insurance and Care NSW constituted under the State Insurance and Care Governance Act 2015.

indictable criminal conduct—

means the commission of an indictable offence, and

includes conduct of a person that would constitute an indictable offence were it not for the fact the person must not, or may not, be held criminally responsible for the conduct because of the person’s age or mental illness or impairment.

injury is defined by section 4.

Insurance Fund means the Workers Compensation Insurance Fund established under section 154D.

large employer means—

an employer—

insured under a policy of insurance to which the Workers Compensation Market Practice and Premiums Guidelines apply, and

whose basic tariff premiums, within the meaning of the Guidelines, for the policy would be more than $50,000, if the period of insurance to which the premium relates were 12 months, or

an employer—

insured under more than one policy of insurance to which the Workers Compensation Market Practice and Premiums Guidelines apply, and

whose combined basic tariff premiums, within the meaning of the Guidelines, for the policy would be more than $50,000, if the period of insurance to which each premium relates were 12 months.

licensed insurer means an insurer who is the holder of a licence granted under Division 3 of Part 7 and in force.

lump sum death benefit—see section 25(1)(a).

mine means a mine within the meaning of the Coal Mines Regulation Act 1982 as in force immediately before its repeal by the Coal Mine Health and Safety Act 2002, but does not include any place that, in accordance with section 10 (2) of the Work Health and Safety (Mines and Petroleum Sites) Act 2013, is a place to which that Act does not apply.

Nominal Insurer means the Workers Compensation Nominal Insurer referred to in section 154A.

NSW Trustee means the NSW Trustee and Guardian constituted under the NSW Trustee and Guardian Act 2009.

PIAWE means pre-injury average weekly earnings.

premium income—

in relation to contributions payable under this Act by an insurer (other than a specialised insurer) in respect of a financial year—means the amount the insurer receives during that financial year as premiums in respect of policies of insurance issued or renewed by the insurer (whether the policies are issued or renewed during that financial year or during a previous financial year), or

in relation to contributions payable under this Act by a specialised insurer in respect of a financial year—means the amount the insurer receives, whether during or after that financial year, as premiums in respect of policies of insurance issued or renewed by the insurer during that financial year,

and, in relation to contributions payable by any insurer, includes any amount comprising or attributable to GST and any amount prescribed by the regulations as included for the purposes of this definition in relation to that financial year, but does not include any amount prescribed by the regulations as excluded for the purposes of this definition in relation to that financial year.

primary psychological injury—see section 8C.

procedural directions has the same meaning as in the Personal Injury Commission Act 2020.

psychological injury—see section 8D.

racial harassment—see section 8E.

reasonable management action—see section 8F.

regulations means regulations made under this Act.

relevant event—see section 8G.

scheme agent means a person appointed under section 154G to act as agent for the Nominal Insurer in connection with the exercise of any of the functions of the Nominal Insurer.

secondary psychological injury—see section 8H.

self-insurer means—

the holder of a licence in force under Division 5 of Part 7, and

a subsidiary of the licence holder covered for the time being by the licence (as provided by section 211A), and

any Government employer covered for the time being by the Government’s managed fund scheme (as provided by section 211B).

sexual harassment—see section 8I.

specialised insurer means a licensed insurer whose licence is endorsed with a specialised insurer endorsement.

traumatic incident—see section 8J

vicarious trauma—see section 8K.

Workers Compensation Market Practice and Premiums Guidelines means guidelines issued by the Authority under section 168 and in force.

WPI means the wage price index ordinary time, hourly rates of pay excluding bonuses, all sectors (NSW) issued by the Australian Bureau of Statistics.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

A reference to a worker who has been injured includes, if the worker is dead, a reference to the worker’s legal personal representative or the worker’s dependants, or any other person to whom or for whose benefit compensation is payable.

(Repealed)

The exercise of the functions of a public or local authority shall, for the purposes of this Act, be treated as its trade or business.

The operations of a racing or recreation club shall, for the purposes of this Act, be treated as its trade or business.

The Crown shall, for the purposes of this Act, be treated as the employer of members of the Police Force.

Notes included in the text of this Act do not form part of this Act.

(cf former s 6 (1))

In this Act—

injury—

means personal injury arising out of or in the course of employment,

includes a disease injury, which means—

a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.

If an employer that is a corporation had not obtained, or was not maintaining in force, at the relevant time a policy of insurance for the full amount of the employer’s liability under this Act in respect of an injured worker and the injured worker was at the relevant time a director of the corporation, the injured worker is not entitled to any compensation under this Act in respect of that liability.

This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, in all its other capacities.

(Repealed)

(cf former s 5)

Nothing in this Act affects the operation of the following Acts—

Workers’ Compensation (Dust Diseases) Act 1942,

Workers’ Compensation (Brucellosis) Act 1979,

Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987.

The workers compensation company (within the meaning of the Coal Industry Act 2001) is taken to be a licensed insurer that is a specialised insurer under, and for the purposes of, this Act.

However, the following provisions of this Act do not apply to or in respect of the workers compensation company—

Division 6 of Part 4,

sections 156 and 156B,

Divisions 1A, 2–5, 6A and 7 of Part 7.

For avoidance of doubt—

an employee of an employer in the coal industry is not eligible to make a claim under Division 6 of Part 4, and

a person who is taken, under Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998, to be a worker employed by another person is not entitled to make a claim referred to in paragraph (a) if the other person by whom the person is taken to be employed is engaged in the coal industry.

The workers compensation company is taken to be the insurer under this Act of all employers in the coal industry (whether or not any such employer maintains a policy of insurance with that company).

In this section—

employer in the coal industry has the same meaning as in the Coal Industry Act 2001.

This division provides for—

interpretative provisions relating to psychological injuries, and

other matters relating to the application of the Workers Compensation Acts to psychological injuries.

This division does not—

extend the definition of injury in section 4, or

limit or otherwise affect the operation of section 4 in relation to personal injury or disease injury.

In this Act, bullying, in relation to a worker, means an individual or a group of individuals repeatedly behaving unreasonably towards the worker or a group of workers of which the worker is a member.