s 1Short title
This is the Workers Compensation and Injury Management Act 2023.
This is the Workers Compensation and Injury Management Act 2023.
This Act comes into operation as follows —
Part 1 (but only Division 1) — on the day on which this Act receives the Royal Assent (assent day);
Part 14 (but only Divisions 1, 4 and 10 and only sections 542, 543, 545, 574, 579, 603, 606 and 609) — on the day after assent day;
Part 15 Division 3 Subdivision 18 —
if the Criminal Law (Mental Impairment) Act 2023 section 188 comes into operation on or before assent day — when section 66 of this Act comes into operation; or
otherwise — when the Criminal Law (Mental Impairment) Act 2023 section 188 comes into operation;
the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.
This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
The application of this Act or any of its provisions cannot be excluded, restricted or modified by contract, agreement or other arrangement, except as provided by this Act.
A person who enters into a contract, agreement or other arrangement that purports to exclude, restrict or modify the application of this Act or any of its provisions, except as provided by this Act, commits an offence.
Penalty for this subsection: a fine of $15 000.
In this Act —
AIDS means acquired immune deficiency syndrome;
approved form means a form approved by the CEO under section 496 for the purposes of the provision in which the term is used;
approved permanent impairment assessor has the meaning given in section 193(1);
approved workplace rehabilitation provider means a workplace rehabilitation provider granted approval under section 173(1);
arbitration rules has the meaning given in section 382(1);
Arbitration Service means the Workers Compensation Arbitration Service established under section 307(1)(b);
arbitrator means a person designated as an arbitrator under section 309(1);
Board means WorkCover WA’s board provided for in section 452;
CEO means the person holding or acting in the office of chief executive officer of WorkCover WA;
certificate of capacity, in relation to a worker’s injury, means a certificate issued in accordance with section 169;
company means a company or a registered body, within the meaning of the Corporations Act 2001 (Commonwealth), other than a registered body specified, or of a kind specified, in the regulations;
compensation means compensation under this Act;
conciliation rules has the meaning given in section 381(1);
Conciliation Service means the Workers Compensation Conciliation Service established under section 307(1)(a);
conciliator means a person designated as a conciliator under section 309(1);
degree of permanent impairment means —
degree of permanent impairment of a part or faculty of the body; or
degree of permanent whole of person impairment;
DI Fund means the WorkCover WA Default Insurance Fund established under section 256(1);
Director means the WorkCover WA officer designated under section 308(1) as the Director;
disease includes any ailment, disorder, defect or morbid condition whether physical or mental and whether of sudden or gradual development;
dispute resolution authority means the Director, the Registrar, a conciliator or an arbitrator;
document includes anything that falls within 1 or more of the following —
a record of information, irrespective of how the information is recorded or stored or able to be recovered;
a thing on which there is writing;
a map, plan, graph, drawing or photograph;
a thing on which there are marks, figures, symbols or perforations that have a meaning for persons qualified to interpret them;
a thing from which images, sounds or writings can be reproduced with or without the aid of anything else;
a thing on which information is recorded or stored, whether electronically, magnetically, mechanically or by some other means;
dust disease has the meaning given in section 115;
dust disease impairment compensation means lump sum compensation under section 119 for impairment resulting from a dust disease;
employer has the meaning given in section 12 (and see also sections 13 to 16);
General Account means the WorkCover WA General Account established under section 488(1);
general maximum amount has the meaning given in section 538(1);
group self‑insurer licence has the meaning given in section 200;
health professional means —
a person registered under the Health Practitioner Regulation National Law (Western Australia) to practise a health profession (other than as a student); or
a person who is not resident in a State but who is recognised as a health professional for the purposes of this Act by WorkCover WA;
HIV means human immunodeficiency virus;
incapacity claim has the meaning given in section 23;
income compensation means compensation under Part 2 Division 3;
injured worker means a worker who has suffered an injury in respect of which compensation is payable;
injury has the meaning given in section 6;
injury by disease means an injury that is a disease, or the recurrence, aggravation or acceleration of a pre‑existing disease, as provided by section 6;
inspector means a staff member designated as an inspector under section 508(1);
Insurance Commission means the Insurance Commission of Western Australia referred to in the Insurance Commission of Western Australia Act 1986;
insured employer means an employer who is insured under a workers compensation policy;
insurer means an employer’s insurer under a workers compensation policy;
licensed insurer has the meaning given in section 200;
medical and health expense has the meaning given in section 71;
medical and health expenses compensation means compensation under Part 2 Division 4;
medical and health expenses general limit amount has the meaning given in section 69;
medical practitioner means —
a person registered under the Health Practitioner Regulation National Law (Western Australia) in the medical profession; or
a person who is not resident in a State but who is recognised as a medical practitioner for the purposes of this Act by WorkCover WA;
mesothelioma means a malignant disease of the inside lining of any 1 or more of the following —
the chest wall (pleura);
the pericardium;
the abdomen (peritoneum);
miscellaneous expense has the meaning given in section 81;
miscellaneous expenses compensation means compensation under Part 2 Division 5;
noise‑induced hearing loss has the meaning given in section 107;
permanent impairment compensation means lump sum compensation under Part 2 Division 7;
provisional payments means provisional payments made to a worker in accordance with section 36;
Registrar means the WorkCover WA officer designated under section 308(1) as the Registrar;
return to work, in relation to a worker who has an incapacity for work, means —
the worker holding or returning to the position that the worker held immediately before becoming incapacitated if it is reasonably practicable for the employer who employed the worker at the time the incapacity occurred to provide that position to the worker; or
if the position is not available, or if the worker does not have the capacity to work in that position, the worker taking a position, whether with the employer who employed the worker at the time the incapacity occurred or another employer —
for which the worker is qualified; and
that the worker is capable of performing;
return to work program means a return to work program established under section 160(2);
self‑insurer has the meaning given in section 200;
self‑insurer licence has the meaning given in section 200;
settlement agreement means a settlement agreement referred to in Part 2 Division 12;
ship —
means any kind of vessel used in navigation by water, however propelled or moved; and
includes any of the following vessels used wholly or primarily in navigation by water —
a barge, lighter or other floating vessel;
an air‑cushion vehicle or other similar craft;
staff member means any of the following —
a WorkCover WA officer;
a person engaged or appointed under the Public Sector Management Act 1994 section 100 for the purposes of this Act;
a person referred to in section 480(1);
State includes a Territory;
Trust Account means the WorkCover WA Trust Account established under section 494(1);
uninsured employer has the meaning given in section 265;
WorkCover WA means the body established under section 445(1);
WorkCover WA officer means the CEO or a public service officer appointed under section 479(1);
WorkCover WA website means a website maintained or controlled by or on behalf of WorkCover WA;
worker has the meaning given in section 12(2) (and see also sections 13 to 16);
workers compensation policy has the meaning given in section 202(1);
working director has the meaning given in section 16(1);
workplace rehabilitation expense means an expense that is for the provision of a workplace rehabilitation service;
workplace rehabilitation expenses compensation means compensation under Part 2 Division 6;
workplace rehabilitation service means a service provided in accordance with the regulations by an approved workplace rehabilitation provider for the purpose of assisting an injured worker to return to work.
In this Act —
injury means an injury from employment that is —
a personal injury by accident; or
a disease, or the recurrence, aggravation or acceleration of a pre‑existing disease.
A personal injury by accident is an injury from employment if the injury arises out of or in the course of the employment or while the worker is acting under the employer’s instructions.
Unless otherwise provided in this Act, a disease, or the recurrence, aggravation or acceleration of a pre‑existing disease, is an injury from employment if —
the disease is contracted, or the recurrence, aggravation or acceleration is suffered, in the course of the employment, whether at or away from the place of employment; and
the employment contributed to a significant degree to the contraction of the disease, or the recurrence, aggravation or acceleration of the pre‑existing disease.
Note for this subsection:
Section 116 determines whether a dust disease is an injury from employment.
In determining whether particular employment contributed to a significant degree to the contraction of a disease, or to the recurrence, aggravation or acceleration of a pre‑existing disease, account must be taken of the following —
the duration of the employment;
the nature of, and particular tasks involved in, the employment;
the likelihood of the disease, or the recurrence, aggravation or acceleration of a pre‑existing disease, occurring despite the employment;
the existence of any hereditary factors relating to the occurrence of the disease;
matters affecting the worker’s health generally;
activities of the worker not related to the employment.
In this section —
administrative action includes any of the following actions —
an appraisal of the worker’s performance;
suspension action;
disciplinary action;
anything done in connection with an action described in paragraph (a), (b) or (c);
anything done in connection with the worker’s demotion, dismissal or retrenchment, or the worker’s failure to obtain a promotion, reclassification, transfer or other benefit, or to retain any benefit, in connection with the worker’s employment.
A psychological or psychiatric disorder, including any physiological effect of the disorder on the nervous system, that a worker experiences is not an injury from employment if it results wholly or predominantly from —
administrative action, not being administrative action that is unreasonable and harsh on the part of the employer; or
the worker’s expectation of administrative action or of a decision by the employer in relation to administrative action.
A personal injury by accident suffered by a worker is taken to be an injury from employment if the injury occurs —
while the worker attends at a place for educational purposes —
as required by the terms of that employment; or
with the employer’s consent and for the purpose of, or in connection with, that employment;
or
while the worker attends at a place for any treatment of an injury or other purpose the cost of which is payable as compensation in respect of the injury; or
while the worker attends at a place to participate in a return to work program or to undertake workplace rehabilitation.
In this section —
work journey means a journey arising out of or in the course of a worker’s employment.
A personal injury by accident suffered by a worker must not be regarded as arising out of or in the course of the worker’s employment if the injury is suffered —
during a journey to or from a place at which the worker resides, whether or not temporarily; or
while a work journey is substantially interrupted for a purpose unconnected with the worker’s employment, or after an interruption of that kind; or
during a substantial deviation from a work journey for a purpose unconnected with the worker’s employment, or after a deviation of that kind.
The regulations may —
specify diseases for the purposes of this section (each a prescribed disease); and
for each prescribed disease specify 1 or more kinds of employment as prescribed employment for that disease.
If a worker suffers an injury by a prescribed disease and the employment in which the worker works at the time of suffering the injury, or in which the worker worked at any time before suffering the injury, is prescribed employment for the disease, the injury is taken to be injury from that employment unless the employer proves that the injury was not from that employment.
Note for this subsection:
Section 6 determines whether an injury by a disease is from employment. An employer can prove that the injury was not from employment by proving that —
it was not suffered in the course of the employment; or
the employment did not contribute to a significant degree to the injury.
The regulations may —
impose conditions or limitations on the operation of this section; and
specify the day on which an injury that under this section is taken to be from prescribed employment is taken to have been suffered.
Unless the regulations otherwise provide, this section extends to —
an injury suffered before, and employment before, the coming into operation of the regulation by which the disease concerned is specified as a prescribed disease; and
an injury suffered before, and employment before, this section comes into operation.
This section does not prevent it from being established independently of this section that an injury by a prescribed disease is from employment whether or not the employment is prescribed employment for the disease.
In this section —
firefighter disease means a disease that is —
listed in column 1 of the Table; or
a cancer prescribed by the regulations to be a firefighter disease;
firefighting employment means employment by or under the Crown in right of the State a substantial part of the duties of which consists of firefighting duties, being employment that is —
covered by an industrial instrument, as defined in section 57(1), that applies to firefighting or by an agreement that wholly or partly regulates the terms or conditions of employment as a firefighter; or
prescribed by the regulations to be firefighting employment;
hazardous fire means —
a fire in a building; or
a fire in a vehicle, whether designed to move under its own power or to be towed and whether or not still movable; or
a fire involving non‑organic refuse or rubbish created by humans; or
a fire that is prescribed by the regulations to be a hazardous fire;
hazardous firefighting employment, in relation to a worker, means firefighting employment during which the worker —
is engaged as a member or officer of a permanent fire brigade, as defined in the Fire Brigades Act 1942 section 4(1); or
attends hazardous fires at a rate at least equivalent to the rate of 5 hazardous fires per year;
qualifying period means —
for a disease listed in column 1 of the Table — the qualifying period specified for that disease in column 2 of the Table; and
for a cancer prescribed by the regulations to be a firefighter disease — the qualifying period prescribed by the regulations for that cancer.
Table
Item | Column 1 Disease | Column 2 Qualifying period |
|---|---|---|
1. | Primary site brain cancer | 5 years |
2. | Primary site bladder cancer | 15 years |
3. | Primary site kidney cancer | 15 years |
4. | Primary non‑Hodgkin’s lymphoma | 15 years |
5. | Primary leukaemia | 5 years |
6. | Primary site breast cancer | 10 years |
7. | Primary site testicular cancer | 10 years |
8. | Multiple myeloma | 15 years |
9. | Primary site prostate cancer | 15 years |
10. | Primary site ureter cancer | 15 years |
11. | Primary site colorectal cancer | 15 years |
12. | Primary site oesophageal cancer | 15 years |
An injury by a firefighter disease suffered by a worker is taken to be from firefighting employment in which the worker was engaged if all of the requirements for the application of this section to the injury as specified in subsection (3) are satisfied, unless the employer proves that the injury was not from that employment.
Note for this subsection:
Section 6 determines whether an injury by a disease is from employment. An employer can prove that the injury was not from employment by proving that —
it was not suffered in the course of the employment; or
the employment did not contribute to a significant degree to the injury.
The requirements for the application of this section to an injury by a firefighter disease suffered by a worker are as follows —
when the injury is suffered the worker (whether or not still in firefighting employment) has been in firefighting employment for at least a period of, or periods in aggregate amounting to, the qualifying period for the disease;
the employer is satisfied that when the injury is suffered the worker has been in hazardous firefighting employment for at least a period of, or periods in aggregate amounting to, the lesser of the following —
5 years;
the qualifying period for the disease.
In the case of a cancer prescribed by the regulations to be a firefighter disease for the purposes of this section —
this section does not apply to an injury by the firefighter disease suffered by a worker before the day specified in the regulations as the day on and after which this section applies to the injury; and
the regulations may impose other conditions or limitations on the operation of this section.
The day on which a worker’s injury by a firefighter disease is taken to have been suffered is the earlier of the following —
the day on which the worker becomes totally or partially incapacitated for work by reason of the injury;
the day on which the injury is first diagnosed by a medical practitioner.
In this section —
person includes —
the State or an agency or instrumentality of the State; and
the Crown, or an agency or instrumentality of the Crown, in any of its other capacities;
training contract means a training contract registered under the Vocational Education and Training Act 1996 Part 7 Division 2.
An individual is a worker if —
the individual has entered into, or works under, a contract of service with a person, whether the contract is express or implied, oral or written; or
the individual —
has entered into a contract with a person to work as an apprentice, or works under a contract with a person as an apprentice, whether the contract is express or implied, oral or written; and
has entered into a training contract that specifies the individual is undertaking an apprenticeship;
or
the individual has contracted with a person for the performance of work by the individual and —
the work is not work in the course of or incidental to a trade or business regularly carried on by the individual in the individual’s own name or under a business or firm name; and
the individual does not sublet the contract; and
if the individual employs a worker, the individual performs part of the work personally.
The person with whom the worker has entered into the contract, or for whom the worker works under the contract, is the worker’s employer.
Note for this section:
Section 215 sets out circumstances in which both a principal and contractor are taken to be employers of a worker.
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