Workers' (Occupational Diseases) Relief Fund Act 1954

Workers' (Occupational Diseases) Relief Fund Act 1954

This Act may be cited as the Workers' (Occupational Diseases) Relief Fund Act 1954.

The Acts that are specified in Schedule 1 are repealed.

In this Act, unless the contrary intention appears – basic rate means a sum equal to the basic salary for the purposes of Division 1 of Part VI of the Workers Rehabilitation and Compensation Act 1988;Board means the Workers' (Occupational Diseases) Relief Fund Board, as continued under this Act immediately before the commencement date; caring partner, in relation to a person, means the person who is in a caring relationship, within the meaning of the Relationships Act 2003, with that person; certifying medical officer means a person appointed as a certifying medical officer under section 14; commencement date means the date of commencement of the Workers Compensation Legislation Amendment Act 1993; court includes a tribunal or authority which is empowered by, or under, law to determine any matter judicially; dependants means such members of the family of an employee as were dependent, wholly or partly, upon the earnings of the employee at the time of his or her death or would have been so dependent but for the incapacity of the employee due to disease, and includes a person whom the Secretary considers to be, or to have been, actually dependent upon the earnings of an employee; disease means a disease specified in Schedule 2; employee means a person to whom this Act applies as provided by section 4; employer means a person with whom an employee has entered into a contract of employment or apprenticeship and includes the personal representative of a deceased employer; functions includes duties; legal proceedings includes an arbitration; medical referee means a person appointed as a medical referee under section 14; member of the family, in relation to an employee, means the spouse, caring partner, father, step-father, grandfather, mother, step-mother, grandmother, son, step-son, grandson, daughter, step-daughter, granddaughter, brother, half-brother, sister or half-sister of the employee; mineral does not include coal or shale; mining operations means – the disturbing, removing, carting, carrying, sifting, smelting, refining, crushing or otherwise dealing with or treating any rock, stone, quartz, clay, sand, soil, ore or mineral by any method for the purpose of obtaining metals or minerals or for prospecting for metals or minerals; and any process in connection with the dealing with, treating or handling of, any rock, stone, quartz, clay, sand, soil, ore or mineral for that purpose; and the dealing with, treating or handling, in connection with a process mentioned in paragraph (a) or (b), of any by-products or residues produced by, or arising from, that process; and the cutting, dressing, shaping or working on any stone, granite, marble or other similar substance; and the quarrying of blue metal or freestone; and the driving of a tunnel – but does not include sluicing, dredging or any similar operations or mining for coal or shale, or the quarrying or crushing of any materials required for the construction or maintenance of roads; obligations includes duties and liabilities; property means any legal or equitable estate or interest, whether present or future and whether vested or contingent, or real or personal property of any description, and includes entitlements, powers and privileges; regulations means regulations made and in force under this Act;Secretary means the Secretary of the Department; spouse, in relation to a person, includes the person who is in a significant relationship, within the meaning of the Relationships Act 2003, with that person;Workers' Fund means the Workers' (Occupational Diseases) Relief Fund as continued under this Act immediately before the commencement date.

References in this Act to the average weekly earnings of an employee before his or her incapacity or death are to be construed as references to his or her average weekly earnings as determined in accordance with Schedule 4.

This Act applies only –

to a person who immediately before the commencement date was an eligible employee within the meaning of this Act as then in force; and in respect of a disease for which compensation had at that time been paid or approved under this Act.

The Secretary may appoint as many medical practitioners as the Secretary thinks necessary to be certifying medical officers or medical referees for the purposes of this Act.

A certifying medical officer or medical referee holding office under this Act immediately before the commencement date is taken to have been appointed under this section.

The Secretary must pay to – a certifying medical officer; or a medical referee – such fee as the Minister may approve in respect of each examination made, certificate given or work or service performed for the purposes of this Act.

A payment under subsection (3) is to be paid from the Public Account without further appropriation than this section.

A certifying medical officer – shall examine an employee who presents himself for medical examination in accordance with any of the provisions of this Act in order to ascertain whether the employee is suffering from disease or not; and shall certify in writing to an inspector of mines appointed under the Mineral Resources Development Act 1995 the result of the examination.

An inspector of mines shall, forthwith after receiving a certificate under this section, forward or deliver the certificate to the Secretary.

Subject to the right of appeal conferred on employers and employees by section thirty-two, a certificate of a certifying medical officer under this section is conclusive to all matters contained therein in relation to the health of the employee to whom it relates.

An employee and his employer may each inspect any medical certificate given in relation to the health of the employee under this section while the certificate is in the possession or custody of an inspector of mines or of the Secretary.

is payable to and in respect of employees subject to and in accordance with the provisions of this Part.

Where it is established to the satisfaction of the Secretary, on the certificate of a certifying medical officer or, on appeal from that certificate, on the certificate of a medical referee, that an employee is suffering from disease and is thereby incapacitated from continuing to work as an employee, that employee is entitled to compensation in accordance with this section.

The compensation payable to an employee under this section shall be by way of weekly payments at the relevant compensation rate.

Subject to subsection (3A) of this section, the relevant compensation rate in respect of a period of incapacity of an employee is – the average weekly earnings of the employee over the period of twelve months ending at the commencement of the period of incapacity; or the ordinary time rate of pay of the employee (as expressed by reference to a week) for the work in which he was engaged immediately before the period of incapacity – whichever is the greater.

If, during a period of incapacity of an employee, the ordinary time rate of pay (as expressed by reference to a week) for any work on which he was engaged immediately before the commencement of that period increases or decreases, the relevant compensation rate shall correspondingly be increased or decreased by the like amount.

Where an employee would, but for the provisions of this subsection, be entitled to compensation under this section in respect of incapacity due to disease, and his employer provides him with other work that is not in the nature of mining operations and that the employee is capable of performing and the remuneration for the other work is not less than the remuneration that the employee was receiving at the time when the incapacity arose, the employee is not entitled to receive any compensation under this section while he is in receipt of that remuneration, and is not entitled to receive any compensation under this section if the other work is offered to him by his employer and he refuses to accept it.

Where an employee is permanently incapacitated, either wholly or partially, from continuing to work as an employee and is entitled to compensation under this section he may, if he has attained the age of eighteen years, enter into an agreement in writing with the Board to receive a lump sum in satisfaction of the whole or a part of the weekly payments to which he would otherwise be so entitled; and upon payment of that lump sum his right to those weekly payments shall be deemed to have been satisfied to the extent specified in the agreement.

An agreement made under subsection (5) of this section shall be filed with the Secretary.

No payments shall be made by way of compensation under this section the aggregate of which, as determined in accordance with section twenty-five AA, exceeds two hundred and eighty-four times the amount of average basic rate for the period of those payments, as determined in accordance with that section.

Any payments which the Secretary would have otherwise been required to make under this section to a person who is under the age of eighteen years may be made to the Public Trustee to be applied by him at his discretion for the benefit of that person.

Claims by employees for compensation under this section shall be determined by the Secretary on application to it in the prescribed manner by or on behalf of the claimants.

Notwithstanding the foregoing provisions of this section, where an employee has, whether before or after the commencement of this Act, entered into an agreement under subsection (5) of this section or under subsection (5) of section thirty-four of the repealed Act, and it is established to the satisfaction of the Secretary – on the certificate of a certifying medical officer, or, on appeal from that certificate, on the certificate of a medical referee, that the extent of the incapacity of the employee arising from the disease in respect of which he has been paid compensation has increased since the time when the employee entered into the agreement; and that, since entering into the agreement, the employee has not engaged in mining operations – the employee shall be paid such further compensation as he might lawfully have been paid pursuant to this section if he had, at the time of entering into the agreement, been incapacitated to the extent specified in the medical certificate mentioned in paragraph (a) of this subsection, and any further compensation so payable may be paid either in a lump sum or by way of weekly payments.

Where it is established to the satisfaction of the Secretary, on the certificate of a certifying medical officer, or, on appeal from that certificate, on the certificate of a medical referee, that an employee is suffering from pneumonokoniosis, silicosis, or fibrosis in the first, second, or third stage of the disease and that the disease is reasonably attributable to employment in mining operations, the Secretary may pay compensation to the employee in accordance with this section.

The total compensation payable under this section in the case of a person suffering from any of the diseases referred to in subsection (1) of this section in the first or second stage of the disease shall not exceed such amount as the Secretary may determine, being – in the case of a person suffering from any of those diseases in the first stage, an amount not less than ten per centum and not greater than twenty per centum; or in the case of a person suffering from any of those diseases in the second stage, an amount not less than twenty-five per centum and not greater than fifty per centum – of the total compensation that could have been paid to him under this Act if by reason of suffering from that disease he was incapacitated from continuing to work as an employee.

The total compensation payable under this section to a person suffering from any of the diseases referred to in subsection (1) of this section in the third stage shall not exceed the total amount of compensation that could have been paid to him under this Act if, by reason of suffering from that disease, he had been incapacitated from continuing to work as an employee.

For the purposes of this section, an employee shall be deemed to be suffering from pneumonokoniosis, silicosis, or fibrosis – in the first stage, when he has early radiological changes suggestive of the disease (being changes that were not present when any radiological examination was made of him on his presenting himself for medical examination under section eighteen); and in the second stage, when – he has definite physical signs of the disease or radiological changes indicative of the disease have occurred to greater degree than those referred to in paragraph (a) of this subsection; and his capacity for work is impaired to some extent by the disease; and in the third stage, when (whether or not accompanied by infection or tuberculosis) severe symptoms of the disease are present and major radiological changes indicative of the disease have occurred.

The provisions of this Act relating to compensation in the case of an employee who is incapacitated, so far as they are applicable, apply in the case of an employee who is receiving compensation under this section.

An employee who is receiving or has received compensation under this section shall not perform any work in connection with mining operations or be employed therein, except as may be approved by the Secretary on the recommendation of a certifying medical officer.

An employee who performs any work, and an employer who knowingly employs an employee, in contravention of subsection (5) of this section is guilty of an offence. Fine not exceeding 10 penalty units, together with a daily fine not exceeding 1 penalty unit.

In addition to any penalty prescribed by subsection (6) of this section, an employee who is guilty of an offence against this section forfeits any claim to compensation under this Act.

Where it is established to the satisfaction of the Secretary, on the certificate of a certifying medical practitioner, or, on appeal from that certificate, on the certificate of a medical referee, that the death of an employee has been caused by disease, and the death has occurred – while he was employed as an employee; or while he was in receipt of a weekly payment under this Act in respect of incapacity due to disease – the dependants of the employee are entitled to compensation in accordance with this section.

The compensation payable in respect of the death of any person is a sum of an amount calculated by multiplying the basic rate at the date of his death by the appropriate multiplier and deducting from the product the aggregate of the amounts (as determined in accordance with section twenty-five AA) of the sums paid to him by way of compensation under this Act before his death.

The appropriate multiplier for the purposes of subsection (2) of this section is two hundred and sixty-three, increased, in the case of a person who leaves one or more dependent children, each of whom, at the date of the death of that person, either is under the age of sixteen years or is under the age of twenty-one years and receiving full-time education at a university, college, school, or similar institution, by – if there are not more than three such children, seven in respect of each of those children; or if there are more than three such children, twenty-one.

Claims for compensation under this section shall be determined by the Secretary on application to it in the prescribed manner by or on behalf of a person claiming to be interested therein as a dependant, and upon a claim therefor being made the Secretary may determine – who are the dependants to whom compensation is payable; and the allocation of compensation to or among those dependants.

Where a person does not leave any dependants who are wholly dependent on his earnings or who would have been so dependent but for his incapacity due to disease, the Secretary may reduce the compensation that would otherwise be payable under this section on his death by such amount as it considers reasonable.

All moneys payable by way of compensation under this section shall be paid to the Public Trustee on behalf of the persons entitled thereto.

The Public Trustee shall pay, invest, apply, or otherwise deal with the moneys paid to it under this section, and the income arising from the investment thereof, if any, to or for the benefit of the persons entitled thereto, in such manner as The Public Trustee considers appropriate.

Notwithstanding the provisions of section twenty-four, but subject to this section, where the death of an employee occurs while he is in receipt of a weekly payment under this Act in respect of incapacity due to disease, but is not caused by the disease, the dependants of the employee are, unless the Secretary otherwise determines, entitled to compensation as provided by that section; but where, by virtue of a determination made by the Secretary under section twenty-three, the total compensation payable to the employee is a proportion only of the total compensation that could have been paid to him under this Act if by reason of his suffering from a disease referred to in that section he was incapacitated from continuing to work as an employee, the appropriate multiplier referred to in subsection (2) of section twenty-four shall, for the purpose of determining the amount of compensation payable to his dependants under this section, be reduced in the like proportion.

Notwithstanding anything in subsection (1) of this section, where it is established to the satisfaction of the Secretary that, at the time of the death of an employee to whom that subsection relates, the extent of the incapacity of that employee arising from the disease in respect of which he was in receipt of a weekly payment under this Act had increased since the time when that weekly payment commenced, the dependants of that employee shall be paid such further compensation as they might lawfully have been paid pursuant to that subsection if at the time when the weekly payment to the employee commenced he had been incapacitated to the extent to which he was incapacitated at the time of his death.

Where an eligible employee who has not received any compensation under this Act dies and it is found that at the time of his death he was suffering from disease (whether the disease was a contributory cause of his death or not) the Secretary may, in its absolute discretion, pay to the dependants of that employee compensation at such rate, not exceeding a percentage of the compensation payable on death equal to the percentage of compensation that would have been payable to the employee under section twenty-three, if he had qualified for the payment of compensation under that section, as the Secretary may determine.