Return to Work Act 2014

This Act may be cited as the Return to Work Act 2014.

The object of this Act is to establish a scheme that supports workers who suffer injuries at work and that has as its primary objective to provide early intervention in respect of claims so as to ensure that action is taken to support workers—

in realising the health benefits of work; and

in recovering from injury; and

in returning to work (including, if required, after retraining);

and

in being restored to the community when return to work is not possible.

In connection with subsection (1), the other objectives that apply with respect to this Act are—

to ensure that workers who suffer injuries at work receive high‑quality service, are treated with dignity, and are supported financially; and

to ensure that employers' costs are contained within reasonable limits so that the impact of work injuries on South Australian businesses is minimised; and

to provide a reasonable balance between the interests of workers and the interests of employers; and

to reduce the overall social and economic cost of work injuries to the State and to the community; and

to support activities that are aimed at reducing the incidence of work injuries; and

to reduce disputation when workers are injured at work by improving the quality of decision-making and by reducing adversarial contests to the greatest possible extent.

A person exercising judicial, quasi‑judicial or administrative powers must interpret this Act in the light of its objects and these objectives without bias towards the interests of employers on the one hand, or workers on the other.

The Corporation, the worker and the employer from whose employment a work injury arises must seek to achieve an injured worker's return to work (taking into account the objects and requirements of this

Act).

Subject to this section, the average weekly earnings of an injured worker is the average weekly amount that the worker earned during the period of

12 months preceding the relevant date in relevant employment.

For the purposes of subsection (1), other than where subsection (2a) applies, relevant employment is constituted by—

employment with the employer from whose employment the injury arose; and

if the worker was, at the time of the occurrence of the injury, in the employment of 2 or more employers, employment with each such employer.

This subsection applies if—

the work injury that results in incapacity for work is a prescribed dust/fibre disease; and

the injured worker elects to have this subsection apply rather than subsection (2).

For the purposes of subsection (1), if subsection (2a) applies, relevant employment is constituted by—

employment with the worker's employer at the time that the prescribed dust/fibre disease is diagnosed by a medical practitioner;

and

if the worker is, at the time of that diagnosis, in the employment of 2 or more employers, employment with each such employer.

An election under subsection (2a)(b)—

must be made in a manner and form approved by the Corporation;

and

cannot be withdrawn by the worker.

For the purposes of this section, any amount paid while a worker was on annual, sick or other leave will be taken to be earnings.

If during the period of 12 months before the relevant date the worker had changed the circumstances of his or her employment from working casually or seasonally to working in permanent employment (whether on a full‑time or part‑time basis) and the worker was in that permanent employment on the relevant date, the worker's average weekly earnings may be determined by reference to the average weekly amount that the worker earned during the period of that permanent employment rather than during the period of 12 months preceding the relevant date, unless to do so would disadvantage the worker.

If a worker voluntarily (otherwise than by reason of an incapacity resulting from a work injury)—

reduces the normal number of hours worked; or

alters the nature of the work performed with the result that a reduction occurs in the worker's weekly earnings, any period before the reduction or alteration takes effect will be disregarded for the purposes of determining average weekly earnings.

In addition, if by reason of the shortness of time during which the worker has been in employment, the terms of the worker's employment or for any other reason, it is not possible to arrive at a fair average, the worker's average weekly earnings may be determined by reference to the average weekly amount being earned by other persons in the same employment with the same employer who perform similar work at the same grade as the worker or, if there is no person so employed, by other persons in the same class of employment who perform similar work at the same grade as the worker.

If a worker is a contractor rather than an employee, the worker's average weekly earnings will be determined by reference to the rate of pay that the worker would have received if the worker had been working as an employee and, if there is an award or industrial agreement applicable to the class and grade of work in which the worker was engaged, the worker's average weekly earnings will be determined by reference to that award or industrial agreement.

If—

an employer is a body corporate; and

the worker is a director as well as an employee of the employer, the worker's average weekly earnings will be determined by reference to the remuneration (calculated on a weekly basis) last reported in a return from the employer to the Corporation under

Part 9Division 7 (unless the Corporation determines that there is good cause not to apply this subsection in the circumstances of the particular case).

If because of a work injury or the gradual onset of a work injury it appears that the level of earnings of an injured worker prior to the relevant date were affected by the injury, the average weekly earnings of the worker must be set at an amount that fairly represents the weekly amount that the worker would have been earning if the level of earnings had not been so affected.

The average weekly earnings of an injured worker who—

was not a full‑time worker immediately before the relevant date; and

immediately before the relevant date had been seeking full‑time employment; and

had been predominantly during the preceding 18 months a full‑time worker, will be taken to be the average weekly earnings of the worker while employed in full‑time employment during the period of 18 months preceding the relevant date.

If a worker who suffers a permanent incapacity (whether total or partial) is under the age of 21 years, the average weekly earnings of the worker must be determined by applying the rate of pay that would have been payable to the worker had the worker been 21 years old and if a worker who suffers a permanent incapacity (whether total or partial) is an apprentice, the average weekly earnings of the worker must be determined by applying the rate of pay that would have been payable to the worker had the worker completed the apprenticeship (and this determination may have effect (if not before) when it is determined that a worker has a permanent incapacity under a redetermination under section 31).

For the purposes of determining the average weekly earnings of a worker—

any component of the worker's earnings attributable to overtime will be disregarded if, at the relevant date, the worker had no reasonable expectation to work overtime within the foreseeable future because of a change in employment arrangements or work practices, or other relevant factors, announced, introduced or occurring on or before the relevant date, but otherwise payments attributable to overtime will be taken into account;

and

to the extent that a worker has worked overtime that is to be taken into account, the component for overtime will be an amount calculated as follows:

where

C is the amount of the component

A is the total of the amounts paid or payable to the worker for overtime during the period used to calculate the average weekly earnings of the worker under a preceding subsection (the relevant period)

B is the number of weeks in the relevant period during which the worker worked or was on annual, sick or other paid leave.

For the purposes of determining the average weekly earnings of a worker—

any amount otherwise payable to the worker that has been the subject of a voluntary salary sacrifice for superannuation purposes by the worker will be taken into account as earnings; and

any non‑cash benefit of a prescribed class provided to the worker by an employer—

will be taken into account if the worker does not retain the benefit of the non‑cash benefit (and valued after taking into account any principles specified by this Act or prescribed by the regulations);

and

will not be taken into account if the worker retains the benefit of the non‑cash benefit.

Despite a preceding subsection, the following will be disregarded for the purposes of determining the average weekly earnings of a worker:

any contribution paid or payable by an employer to a superannuation scheme for the benefit of the worker;

any prescribed allowances.

Despite a preceding subsection—

if an injured worker's remuneration was, at the relevant date, covered by an award or industrial agreement, the worker's average weekly earnings will not be less than the weekly wage to which the worker was then entitled under the award or industrial agreement; and

if, but for this paragraph, the average weekly earnings of a worker (not being a self‑employed worker) would be less than the Federal minimum wage applying in relation to the worker (adjusted, in the case of a worker who was working at the relevant date on a part‑time basis, in accordance with the regulations so as to provide a pro‑rata amount), the average weekly earnings will be fixed at the Federal minimum wage (or, if relevant, the Federal minimum wage as so adjusted); and

the average weekly earnings of a worker will in no case be fixed at more than twice State average weekly earnings.

For the purposes of this section—

a reference to the relevant date is a reference to—

unless subparagraph (ii) applies—the date on which the relevant injury occurs; or

if the worker has made an election under subsection (2a)(b)—the date on which the prescribed dust/fibre disease to which the election relates is diagnosed by a medical practitioner; and

a reference to a worker who is working on a part‑time basis is a reference to a worker who, after taking into account the usual work patterns of workers in employment of the kind in which the worker is working at the relevant date, is not working the number of hours per week that can be taken to constitute full‑time employment.

The Minister must not make a recommendation to prescribe a disease as a prescribed dust/fibre disease unless—

the Minister has consulted with—

1 or more professional associations representing medical practitioners, including the Australian Medical Association (South Australia)

Incorporated; and

the Corporation; and

the Advisory Committee; and

the Minister is satisfied that it will be reasonable for the disease to be prescribed.

In this section—

prescribed dust/fibre disease means a disease, attributable to exposure to a form of dust or to fibres, prescribed for the purposes of this definition by regulation made on the recommendation of the

Minister (see subsection (17)).

This Act binds the Crown in right of the State and also, so far as the legislative power of the State extends, in all its other capacities.

This Act applies to an injury if (and only if) it arises from employment.

Subject to this section, an injury arises from employment if—

in the case of a physical injury—the injury arises out of or in the course of employment and the employment was a significant contributing cause of the injury; and

in the case of a psychiatric injury—

the psychiatric injury arises out of or in the course of employment and the employment was the significant contributing cause of the injury;

and

the injury did not arise wholly or predominantly from any action or decision designated under subsection (4).

In connection with the application of subsection (2) to an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury (a prescribed event)—

in the case of an injury other than a psychiatric injury—employment must be a significant contributing cause of the prescribed event; and

in the case of a psychiatric injury—

employment must be the significant contributing cause of the prescribed event; and

the prescribed event must not arise wholly or predominantly from any action or decision designated under subsection (4), and then the injury is only compensable to the extent of and for the duration of the relevant aggravation, acceleration, exacerbation, deterioration or recurrence.

The following are designated for the purposes of subsection (2)(b)(ii) and (3)(b)(ii):

reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss the worker or a decision of the employer not to renew or extend a contract of service;

a decision of the employer, based on reasonable grounds, not to award or provide a promotion, transfer or benefit in connection with the worker's employment;

reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment;

reasonable action taken in a reasonable manner under this Act affecting the worker.

For the purposes of this Act, a worker's employment includes—

attendance at the worker's place of employment on a working day but before the day's work begins in order to prepare, or be ready, for work;

and

attendance at the worker's place of employment during an authorised break from work; and

attendance at the worker's place of employment but after work ends for the day while the worker is preparing to leave, or in the process of leaving, the place; and

attendance at an educational institution under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; and

attendance at a place to receive a medical service, to obtain a medical report or certificate (or to be examined for the purpose), to receive recovery/return to work services or for the purposes of a recovery/return to work plan, or to apply for, or receive, compensation for a work injury.

Any injury attributable to surgery or other treatment or service performed with due care and skill by a person professing to have particular skills and undertaken or provided while attending at a place referred to in subsection (5)(e) will be taken to constitute part of the original work injury.

An injury does not arise from employment if it arises out of or in the course of the worker's involvement in a social or sporting activity, except where the activity forms part of the worker's employment or is undertaken at the direction or request of the employer.

An injury that arises out of or in the course of a journey arises from employment if (and only if)—

the journey is undertaken in the course of carrying out duties of employment; or

the journey is between—

the worker's place of residence and place of employment;

or

the worker's place of residence or place of employment and—

an educational institution the worker attends under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; or

a place the worker attends to receive a medical service, to obtain a medical report or certificate (or to be examined for that purpose), to receive recovery/return to work services or for the purposes of a recovery/return to work plan, or to apply for, or receive, compensation for a compensable injury, and there is a real and substantial connection between the employment and the journey being undertaken at the time of the accident out of which the injury arises.

However, the fact that a worker has an accident in the course of a journey to or from work does not in itself establish a sufficient connection between the accident and the employment for the purposes of subsection (8)(b).

The journey between places mentioned in subsection (8)(b) must be a journey by a reasonably direct route but may include an interruption or deviation if it is not, in the circumstances of the case, substantial, and does not materially increase the risk of injury to the worker.

If—

a worker's injury consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a pre-existing coronary heart disease; and

the injury arises in the course of employment, it will be presumed, in the absence of proof to the contrary, that the employment was a significant contributing cause of the injury.

A worker who is acting in connection with, and for the purposes of, the employer's trade or business is presumed to be acting within his or her employment despite the fact that—

the worker is acting in contravention of a statutory or other regulation applicable to the employment; or

the worker is acting without, or in contravention of, instructions from the employer.

However, a worker will not be entitled to receive any services or benefits under this Act in relation to an injury if—

the worker is guilty of misconduct or acts in contravention of instructions from the employer during the course of an attendance under section 7(5); or

it is established on the balance of probabilities that the injury is wholly or predominantly attributable to—

serious and wilful misconduct on the part of the worker;

or

the influence of alcohol or a drug voluntarily consumed by the worker (other than a drug lawfully obtained and consumed in a reasonable quantity by the worker).

Subsection (2)(a) does not apply in a case of death or permanent total incapacity for work and subsection (2)(b) does not apply in the case of death or serious and permanent injury.

Subject to this section, an injury is not compensable under this

Act unless it is established on the balance of probabilities that it arises from employment.

Subsection (1) operates—

subject to the qualification that if a worker suffers an injury of a kind referred to in the first column of

Schedule 2 and has been employed in work of a type referred to in the second column of

Schedule 2 opposite the injury, the worker's injury is presumed, in the absence of proof to the contrary, to have arisen from employment; and

subject to Schedule 3.

If a worker retires or is retired from employment on account of age or ill‑health and the worker makes a claim for noise induced hearing loss after the expiration of 2 years from the date of the retirement, subsection (2)(a) does not apply in relation to that claim.

A regulation made on the recommendation, or with the approval, of the Corporation or the Advisory Committee may—

extend the operation of subsection (2)(a) to injuries and types of work prescribed in the regulation;

extend the operation of

Schedule 3 to an injury and corresponding qualifying period prescribed in the regulation.

This Act applies to a worker's employment if (and only if) that employment is connected with this State.

The fact that a worker is outside this State when an injury occurs does not prevent an entitlement to compensation arising under this Act in respect of employment that is connected with this

State.

A worker's employment is connected with—

the State in which the worker usually works in that employment;

or

if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or

if no State or no one State is identified by paragraph (a) or

, the State in which the employer's principal place of business in Australia is located.

In the case of a worker working on a ship, if no State or no one

State is identified by subsection (3), a worker's employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than 1 State) the State in which the ship most recently became registered.

If no State is identified by subsection (3) or (if applicable) (4), a worker's employment is connected with this State if—

a worker is in this State when the injury occurs; and

there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.

In deciding whether a worker usually works in a State—

regard must be had to the worker's work history with the employer over the preceding 12 months and the intentions of the worker and employer;

but

regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.

Subject to subsection (6), in determining whether a worker usually works in a State or is usually based in a State for the purposes of employment, regard must be had to any period during which a worker works in a

State or is in a State for the purposes of employment whether or not under the statutory workers compensation scheme of that State the person is regarded as a worker or as working or employed in that State.

Compensation under this Act does not apply in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act

1992 of the Commonwealth applies to the worker's employment.

In this section—

ship means any kind of vessel used in navigation by water, however propelled or moved, and includes—

a barge, lighter, or other floating vessel; and

an air-cushion vehicle, or other similar craft, used wholly or primarily in navigation by water;

State includes a Territory and, in a geographical sense, a State's or Territory's relevant adjacent area as described in Schedule 4.

If the question of whether this State is connected with a worker's employment arises in proceedings in the Tribunal or a court in relation to a claim for compensation under this Act, the Tribunal or court must—

determine the State with which the worker's employment is connected in accordance with section 10; and

cause that determination to be entered in its records.

The Tribunal must, in determining a question under subsection (1), be constituted of 1 or more presidential members and if the question arises in proceedings that are not before a presidential member (or presidential members) then the question is to be referred, on an interlocutory basis, to a presidential member of the

Tribunal.

Subsection (1) does not apply if there is a determination that is to be recognised under section 12.

If a determination of the State with which a worker's employment is connected has been made—

by the Tribunal or a court under section 11; or

by a designated court under a provision of a law that corresponds with section 11, or under another provision of a law prescribed by the regulations for the purposes of this provision;

or

by a court of this State or another State in the course of proceedings that are relevant to the application of this Act or a corresponding law, or that relate to a claim for compensation or damages, the State so determined is to be recognised for the purposes of this Act as the State with which the worker's employment is connected.

This section does not prevent any appeal relating to any such determination and if the determination is altered on appeal, the altered determination is to be recognised under subsection (1).

In this section—

designated court means—

the Supreme Court of a State in which a corresponding law is in force; or

a court, tribunal or other decision‑making body of a State in which a corresponding law is in force that is declared by the regulations to be a designated court for the purposes of this section;

State includes a

Territory.

The Corporation, in acting under and for the purposes of this Act, must—

adopt a service‑orientated approach that is focused on early intervention and the interests of workers and employers; and

seek to act professionally and promptly in everything that it does;

and

be responsible and accountable in its relationships with others;

and

without limiting a preceding paragraph, take reasonable steps to comply with any request made by a worker under section 15(2).

The Corporation must, in connection with subsection (1), develop and maintain plans or strategies that are designed to establish practices and procedures under which the specific circumstances of an injured worker and his or her employer will be addressed and with the objective of—

ensuring early and timely intervention occurs to improve recovery and return to work outcomes including after retraining (if required);

and

achieving timely, evidence based decision-making that is consistent with the requirements of this Act; and

wherever possible, providing a face to face service where there is a need for significant assistance, support or services; and

ensuring regular reviews are taken in relation to a worker's recovery and, where possible, return to work; and

ensuring the active management of all aspects of a worker's injury and any claim under this Act; and

encouraging an injured worker and his or her employer to participate actively in any recovery and return to work processes;

and

minimising the risk of litigation.

The policies and principles set out in this section do not give rise to substantive rights or liabilities (compared to rights or liabilities established or prescribed under other relevant provisions of this Act).

The Corporation must adopt and apply the service standards set out in Schedule 5 (but these standards do not, in themselves, give rise to substantive rights or liabilities (compared to rights or liabilities established or prescribed under other relevant provisions of this Act)).