Bills

Return to Work (Employment and Progressive Injuries) Amendment Bill

Second Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (22:31): I move:

That this bill be now read a second time.

I am pleased to introduce the Return to Work (Employment and Progressive Injuries) Amendment Bill 2024. This bill reflects commitments made by the government during the debate over the Return to Work (Scheme Sustainability) Amendment Bill 2022, to ensure that our workers compensation scheme continues to operate as fairly as possible in the interests of injured workers.

This bill makes important reforms to improve the operation of the duty to provide suitable employment following a workplace injury and to remedy any potential unfairness currently faced by victims of dust diseases and terminal illnesses in accessing compensation under the act.

I will not seek to repeat the extensive technical explanation of the provisions of this bill provided by the Minister for Industrial Relations and Public Sector in the Legislative Council, but suffice to say the drafting of the bill reflects a wideranging consultation over many months with stakeholders, including ReturnToWorkSA, trade unions, the legal profession and peak business, as well as self-insured bodies.

I am pleased that the bill was supported unanimously and note that it was supported unanimously in the Legislative Council. That reflects both the considered drafting of the bill and the general support of this parliament for a workers compensation scheme that operates fairly and helps to return injured workers to their employment as soon as possible following an injury.

I foreshadow that I will move a small number of government amendments which have been distributed to members and are responsive to a small number of matters raised over the winter break.

Most of these amendments are largely technical in nature and are intended to clarify minor drafting issues, as well as to address the transitional issue which has been raised with the government by the Law Society and the working group currently consulting on the third edition of the Impairment Assessment Guidelines. One amendment is also proposed to provide certainty that workers are entitled to reasonable medical privacy and that representatives of their employer, or the Return to Work Corporation, cannot attend the worker's medical treatment without obtaining the worker's express consent.

I take this opportunity to thank the many stakeholders who have contributed to this bill. I commend the bill to the house and seek leave to have the remainder of my second reading speech and the explanation of clauses inserted in Hansard without my reading them.

Leave granted.

[Section 18 – Introduction]

Section 18 of the Act deals with an employer's duty to provide suitable employment to an injured worker once the worker can return to work. It also provides an independent process where the South Australian Employment Tribunal can resolve return to work disputes.

It is important to reflect on why this duty exists. It is about making sure the Act does what it says on the tin: return injured workers to work.

Over the past 15 years, this Parliament has had to make difficult decisions about the financial benefits available under our workers compensation system, to ensure that it remains financially viable, and can continue to support injured workers, long into the future.

In doing so we have moved from a scheme under the 1986 Act where an injured worker was entitled to income support for the duration of their incapacity, to a scheme under the 2014 Act where income support for the overwhelming majority of workers ceases after 2 years.

In that context the duty to provide suitable employment makes clear that, regardless of the duration of an injured worker's income support, their employer has both a moral and a legal obligation to help the worker return to work insofar as that is reasonably practicable.

That duty operates in the interest of the entire community. A scheme which supports injured workers achieving an early return to work delivers better outcomes for the worker – but it also delivers better outcomes for employers by getting workers back into the workplace, reducing income support payments, and creating downward pressure on premiums.

That duty is also vitally important in supporting those workers who may not reach the 'seriously injured' threshold, but nonetheless continue to experience a partial incapacity for work after their income support period comes to an end. It means those workers cannot simply be cast aside, and employers must consider suitable employment options having regard to the nature of the worker's ongoing incapacity.

For these reasons the duty to provide suitable employment is not merely an accessory to a successful workers compensation scheme; it is an essential element of the 2014 Act and a core component to any scheme that operates fairly and in the interests of injured workers.

Many stakeholders have expressed concern that the duty is not currently operating as effectively as it could be, particularly due to issues including overly technical dispute resolution requirements and an absence of effective remedies for noncompliance.

This Bill seeks to address those shortcomings.

[Procedure]

The Bill amends the procedural requirements before a section 18 dispute can be commenced, to encourage parties to fully communicate about suitable employment options at an early stage.

This is intended to promote the parties reaching a negotiated outcome, however where a dispute does occur, it means parties will be in a better position to expeditiously progress proceedings before the Tribunal.

Subsections 18(3) through (4c) require the worker to advise their employer in writing of their request for suitable employment, including the type of employment the worker considers they are capable of performing.

They must also provide evidence of their medical capacity for work. There is no prescribed form of evidence and this is not intended to be a high bar; it could include things like a work capacity certificate or letter from their doctor outlining their work restrictions.

The employer then has 1 month to consider the request and advise the worker in writing whether they will provide suitable employment; either of the kind requested by the worker, or any other kind of employment the employer is willing to provide. The employer must give reasons for any refusal to provide suitable employment, or why it considers alternative employment options to be suitable.

If the worker and employer cannot agree on suitable employment following that exchange, the worker then has 1 month to make an application to the Tribunal to deal with the dispute. That gives some further time for negotiation between the worker and employer to see if a resolution can be reached.

[Backpay orders]

A section 18 dispute may take many months to work its way through the Tribunal from an initial application, through conciliation and mediation, to a final hearing and judgment.

If the Tribunal ultimately finds that an injured worker should have been provided suitable employment, orders made by the Tribunal only apply prospectively. No compensation is available for the loss the worker has endured over the time the dispute has awaited determination.

This Bill inserts a new subsection 18(5e), which gives the Tribunal the power, when making a section 18 order, to also order that the employer make a payment to the injured worker for the wages or salary they would have received if the suitable employment had been provided.

Subsection 18(5f) and (5g) provide additional guidance to the Tribunal on how the calculation of this backpay order should be approached, emphasizing that the purpose of the order is to place the worker in the financial position they would have been if the suitable employment ordered by the Tribunal had been provided from the outset.

That means, where the worker has been in receipt of weekly payments while the dispute is on foot, the Tribunal can effectively order payment of an amount to 'top up' the remuneration the worker actually received to the amount they would have received if the suitable employment had been provided.

Where the worker was not entitled to weekly payments during the period of the dispute, the Tribunal can order payment of an amount to reflect the wages or salary the worker would have earned from the suitable employment during the dispute.

To avoid 'double dipping', the Tribunal must have regard to any remuneration the worker received from other employment or work during the period. This ensures the worker cannot walk away better off than they would have been if the suitable employment had been provided.

The Tribunal also has a broad discretion under subsection 18(5h) to reduce the amount of the payment having regard to the particular circumstances of the case.

This would allow the Tribunal to take into account matters such as any unreasonable delay in the conduct of the proceedings by the worker, or evidence that the worker only reached the medical capacity to undertake suitable employment at some date midway through the proceedings after the original request for employment was made.

[Self-insured employers]

While most employers under the Return to Work Scheme are registered and insured by ReturnToWorkSA, the Act also allows for the registration of group self-insured employers who are responsible for the management of their own work injury claims.

These self-insured employers include, for example, the State Government and large corporate groups such as BHP, Hungry Jacks, Coles, and Woolworths.

The Bill inserts subsection 18(16d) to confirm that where a worker is injured working for a group self-insured employer, the duty to provide suitable employment applies across that self-insured group and is not siloed to the pre-injury employer alone.

This means, for example, that a worker who is injured while working at a Coles warehouse could be provided with suitable employment at a Coles supermarket instead. Similarly, a worker injured in one government department could be redeployed to a different government department having regard to the nature of their restrictions following their injury.

The Bill inserts subsection 18(5c) to enable the Tribunal, when making a section 18 order, to determine where a worker should be provided suitable employment within a self-insured group.

The Bill also inserts subsection 18(5d) to create a clear expectation that any section 18 order should require that employment be provided by the pre-injury employer unless there are good reasons for it to be provided by a different member of the self-insured group.

This ensures the dispute process cannot be used as an opportunity to simply 'shop around' for different employment options if suitable employment can reasonably be provided by the pre-injury employer.

It is important to note these amendments only apply to group self-insured employers comprised of related bodies corporate, because those groups have a common management structure which can coordinate the employment of injured workers across the group.

These amendments do not apply, for example, to local government entitles which form part of the Local Government Association Workers Compensation Scheme, as these are not related bodies corporate and do not have a common management structure.

[Host employers / labour hire]

Some of the worst return to work outcomes under our scheme are seen in sectors with a high use of labour hire employment.

That is, at least in part, because labour hire providers are often dependent on host employers to cooperate in returning injured workers to work following an injury. Without the cooperation of the host employer, there is often no suitable employment that can reasonably be provided.

The Bill remedies this by inserting provisions, based on a similar obligation in the Victorian workers compensation legislation, to require host employers to cooperate with labour hire providers in relation to return to work matters.

Subsection 18(16a) requires host employers to cooperate with labour hire providers by communicating about suitable employment options, participating in return to work planning, and providing access to the workplace for the performance of duties by the injured worker.

The Bill also inserts subsection 18(5b) to allow the Tribunal to make orders about the extent of this cooperation in a section 18 dispute.

A host employer is not required to cooperate if it is not reasonably practicable to do so. This is the same principle which applies to section 18 orders more broadly, and allows the Tribunal to take into account the unique circumstances of the labour hire provider and host employer in determining any orders about the cooperation required.

Subsection 18(16b) makes clear nothing in the Bill requires a host employer to directly employ a labour hire worker following a work injury. For the purpose of these cooperation obligations, it is expected that the injured worker will remain employed by the pre-injury labour hire provider.

[Recovery/return to work plans]

Consequential amendments are made to section 25 of the Act, which concerns recovery and return to work plans.

These amendments enable a recovery or return to work plan to include obligations on a host employer or another member of a self-insured group to whom the duty to provide suitable employment applies under section 18.

This is particularly important to help facilitate return to work planning in circumstances where there may be no substantive dispute about the provision of suitable employment, but there are matters of detail which are appropriate to include in a recovery or return to work plan.

No order is required from the Tribunal under section 18 before a recovery or return to work plan can be made. However, a host employer or self-insured group member does have standing to dispute any plan they disagree with using existing dispute processes.

The amendments to section 25 also provide that a recovery or return to work plan cannot change a worker's return to work goal, to abandon attempts to return to the worker to their pre-injury employer, without the agreement of the worker.

[Serious and wilful misconduct / costs]

Amongst the amendments to improve the operation of the section 18, there are also some significant benefits for employers.

The Bill amends subsection 18(2) to make clear that an employer's duty to provide suitable employment ceases if the worker's employment has been properly terminated on the basis of serious and wilful misconduct.

This ensures employers are not required to continue providing suitable employment where an injured worker has fundamentally breached their employment obligations, such as through a deliberate fraud or theft.

It is important to be clear an employer cannot evade the section 18 duty simply by making an allegation of misconduct. If there is a dispute, then it is ultimately for the Tribunal to fully examine the circumstances of a dismissal and determine whether the worker has in fact engaged in serious and wilful misconduct.

The Bill also modifies the costs regime for section 18 disputes, so that employers are entitled to have their costs paid in the same way as workers are under general compensation disputes. This means that the legal costs of all parties to the dispute will generally be paid by the compensating authority, up to prescribed limits, and subject to exceptions where a party has acted unreasonably or vexatiously.

This amendment provides a level playing field for all parties in section 18 disputes, and is consistent with the cost rules that apply throughout the rest of the Act.

[Technical issues]

The Bill also deals with several issues of a technical nature.

[Current incapacity]

The Tribunal has held that the Act currently requires that a worker must have a current incapacity for work at the time a section 18 order is made in order for the Tribunal to exercise its jurisdiction.

This creates difficulty where a worker's injury lends itself to a binary incapacity: that is, where the worker is either totally incapacitated for work, or totally fit for work. This may commonly occur with psychiatric injuries or where the worker undergoes a surgery to restore their capacity following a physical injury.

For these workers, they may be either totally incapacitated, in which case, any request for suitable employment is redundant, or they are totally fit for work, in which case there is no jurisdiction to make an order.

This overlooks the common grey area where a worker may, as an ultimate question of fact, be fit to return to work but there is nonetheless a medical dispute between the worker and the employer about the extent of their capacity; these disputes often involve competing expert medical evidence which needs to be resolved by the Tribunal.

It also overlooks situations where a worker may make a section 18 application while suffering an incapacity, but then recover from their injury midway through the proceedings. In those circumstances the Tribunal would lose its jurisdiction to make an order, even if the employer continued to refuse to return the worker to work.

The solution provided in this Bill is subsection 18(4e), which creates a time limited period in which a dispute is preserved after a worker has ceased to be incapacitated. If the worker has requested suitable employment before they ceased to be incapacitated, or within 6-months of ceasing to be incapacitated, the Tribunal will continue to have jurisdiction to resolve the dispute.

An amendment to subsection 18(1) is made to operate in conjunction with the 6-month time limit imposed under subsection 18(4e).

If a dispute arises between the worker and their employer after that 6-month period, the worker cannot make a section 18 application but may rely on other remedies available under general employment law to resolve the dispute, such as an unfair dismissal application.

The issue of when a worker ceases to be incapacitated is ultimately a question of fact, but typically this would be informed by medical evidence from the worker's treating doctor based on their examination of the worker. Our clear expectation is that a worker would be advised if their doctor considers they have ceased to be incapacitated, so that the worker can consider the application of the 6-month time-limit.

[Specificity of orders]

The Bill also inserts subsection 18(5a) to clarify that in making a section 18 order the Tribunal may specify certain aspects of the suitable employment to be provided, including the nature and range of duties, any adjustments to be made to enable the worker to perform those duties, and the number of hours to be worked.

There may be situations where it is unnecessary for the Tribunal to go into that level of detail, in which case subsection 18(5a) also allows the Tribunal to make those matters subject to a recovery/return to work plan to provide additional flexibility to the parties in structuring the suitable employment in accordance with a section 18 order.

[Concurrent disputes]

Every stakeholder agrees that if an injured worker is going to return to the workplace following a section 18 dispute, then that should happen as quickly as possible. The longer the worker is away, the harder it is to reintegrate them into the workforce.

The Bill inserts subsection 18(7c) to confirm that the Tribunal can hear and determine a section 18 dispute concurrently with other proceedings under the Act, and can also determine the compensability of an injury in the context of a section 18 dispute alone.

These amendments will support section 18 disputes being resolved expeditiously, rather than having to await the outcome of other legal proceedings and delay any certainty for the parties in their return to work obligations.

[Evidence to be considered]

The Bill also inserts subsection 18(7d) to make clear that the Tribunal is not artificially limited to considering the situation that existed when the worker first requested suitable employment, and may have regard to medical and factual developments that arise during litigation.

It is well known that workers compensation disputes ebb and flow over time and it is important that the Tribunal can take a practical approach to the current evidence before it, including in relation to the worker's medical capacity and the available suitable employment options.

[Monetary orders]

The Bill also inserts section 19A, which gives the Tribunal jurisdiction to determine monetary claims for wages or salary payable under section 19 when a worker is undertaking alternative or modified duties.

This amendment is made for the avoidance of doubt and to remove any uncertainty about whether the determination of such disputes is fully captured by the existing monetary claim jurisdiction of the Tribunal.

[Dust diseases/terminal illnesses]

I now turn to the amendments relating to dust diseases and terminal illnesses.

[Statutory clarity as to when an injury has stabilized]

A key principle in the Act is that a work injury must have 'stabilised' before a permanent impairment assessment can be undertaken by an Accredited Impairment Assessor.

A permanent impairment assessment determines the injured worker's degree of whole person impairment. This is then factored into the calculations which determine the worker's entitlement to lump sum compensation and access to other benefits, such as serious injury status and common law.

This Bill includes a clear and concise definition of 'stabilised', which provides statutory clarity regarding when a worker may seek a permanent impairment assessment.

The definition is consistent with personal injury law principles that a worker cannot be forced to undergo medical treatment. It is also consistent with the Impairment Assessment Guidelines, which make clear that a choice by a worker not to pursue additional or alternative medical treatment that has been offered, does not preclude the worker's condition from being taken as stable for the purposes of a permanent impairment assessment.

[Exceptions to the 'stabilised' requirement]

The vast majority of work injuries will stabilise within the meaning of the statutory definition in this Bill.

However, in addition to defining stabilised, the Bill also includes exceptions to this requirement for injured workers with terminal illnesses and prescribed conditions. These exceptions ensure those workers can undergo an assessment even though their condition may continue to deteriorate.

[Terminal conditions exception to the stabilised requirement]

The Bill defines that a terminal condition is a work injury that is incurable and will, in the opinion of a medical practitioner, cause death. The determination of this criteria is a matter for a medical practitioner, and ideally, the worker's treating specialist.

To be clear, the terminal condition exception means a worker who has a work injury that is a terminal condition will not need to establish that the injury has stabilised for it to be assessed. This change provides certainty for workers with a terminal illness that they have access to a permanent impairment assessment and the entitlements that can flow from that assessment.

[Prescribed conditions exception to the stabilised requirement]

The prescribed condition exception to the stabilised requirement is intended for work injuries that are of a progressive nature. Conditions that might fall into this category are ones that are not necessarily terminal, but may not stabilise within the meaning of the statutory definition, for example some dust diseases.

The regulations will govern what is considered a 'prescribed condition'. The Minister is required to meet certain requirements before he can prescribe a condition for the purposes of this provision. At a minimum, the Minister must consult with certain stakeholders including the AMA (SA), the Minister's Advisory Committee and the Corporation. In addition, the Minister must be satisfied that the condition is serious and potentially life threatening, and extremely likely to cause an ongoing deterioration, such that the degree of impairment resulting from the condition is unlikely to stabilise for a significant period.

Determination of these factors by the Minister is supported and guided by the required consultation that the Minister must undertake.

[Fairer income support outcomes for injured workers with prescribed dust diseases]

The draft Bill achieves fairer outcomes for workers through amendments to section 5 of the Act, which provides the framework for setting a worker's average weekly earnings which forms the basis of that worker's entitlement to weekly payments of income support.

A worker's average weekly earnings rate is set by reference to the worker's 'relevant employment', which is the employment from which the injury arose. For the purposes of dust diseases, the relevant employment is the employment at the time in which the worker was exposed to hazardous dust that caused the prescribed dust disease.

In some circumstances, a worker may be exposed to hazardous dust decades before they are incapacitated for work by their injury, and the worker's earnings may be significantly less than their earnings at the time the injury manifests. The case of Rantanen v ReturnToWorkSA is one example that has exposed the unfairness which can result from the application of these provisions.

Conversely, in other cases, the average weekly earnings attached to the worker's employment at the time in which they were exposed to hazardous dust may be more than their average weekly earnings at the date they are diagnosed with a dust disease.

These amendments allow a worker with a prescribed dust disease to elect which employment is used for the purposes of calculating their average weekly earnings. Workers will have a choice between setting their average weekly earnings by reference to either their employment at the time they were exposed to the hazardous dust that caused the prescribed dust disease, or at the time they are diagnosed with a prescribed dust disease.

In other words, to achieve fairer outcomes with respect to income support entitlements, workers with prescribed dust diseases can choose whichever option provides them the higher amount.

Relevant dust diseases are prescribed by way of regulation and the process is informed and guided by legislated consultation requirements. For example, the Minister must consult with stakeholders including the AMA (SA), the Minister's Advisory Committee and the Corporation before making a recommendation to prescribe a disease linked to this provision.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Return to Work Act 2014

3—Amendment of section 4—Interpretation

This clause inserts interpretative provisions to support the measure.

4—Amendment of section 5—Average weekly earnings

This clause amends section 5 of the principal Act to further expand categories of relevant employment.

5—Amendment of section 18—Employer's duty to provide work

This clause amends section 18 of the principal Act to make additional provision for an employer's duty to provide work.

The clause provides that a worker who has been incapacitated for work in consequence of a work injury who seeks employment with the pre-injury employer may give written notice to the employer seeking a return to work. The clause further provides that the pre-injury employer may offer suitable employment (either of a kind requested in the worker's section 3 notice or some other suitable employment) and sets out the procedures that may be followed if no offer of suitable employment is made. The clause provides that a worker may apply for an order by the Tribunal under subsection (5) if the pre-injury employer refuses or otherwise fails to provide suitable employment, or the worker considers that any employment offered by the pre-injury employer is not suitable.

The clause inserts proposed subsection (5a) to expand the Tribunal's capacity to make orders relating to the provision of suitable work by an employer to an injured worker.

The clause provides for the payment of costs.

The clause also amends section 18 of the principal Act to set out the obligations of both host employers and labour hire employers to provide work to injured workers.

6—Amendment of section 19—Payment of wages for alternative or modified duties

This clause amends section 19 of the principal Act to remove the capacity for the Corporation to determine that the requirement to pay wages under section 19 does not apply.

7—Insertion of section 19A

This clause inserts section 19A into the principal Act.

19A—Jurisdiction to determine monetary claims

This clause provides that the Tribunal (constituted as the South Australian Employment Court) has jurisdiction to hear and determine monetary claims for wages or salary payable under section 19.

8—Amendment of section 22—Assessment of permanent impairment

This clause amends section 22 of the principal Act to make further provision for when an injury has stabilised to include an injury that is a prescribed condition and an injury that is a terminal condition.

9—Amendment of section 25—Recovery/return to work plans

This clause amends section 25 of the principal Act to provide for references to 'the host employer' in addition to existing references to the Corporation and the employer.

10—Amendment of section 42—Federal minimum wage safety net

This clause amends section 42 of the principal Act so that the reference to the relevant date applying in relation to the worker is a reference to the relevant date in proposed section 5(16)(a).

11—Amendment of section 48—Reduction or discontinuance of weekly payments

This clause amends section 48 of the principal Act so that the existing reference to a worker's dismissal from employment is substituted with a reference to the worker's employment being properly terminated as a basis for discontinuing weekly payments for an injured worker.

12—Amendment of section 122—Powers and procedures on a referral

This clause amends section 122 of the principal Act to ensure that consideration of what constitutes injury stabilisation mirror the proposed changes to section 22.

13—Amendment of section 129—Self-insured employers

This clause amends section 129 of the principal Act to provide that the Corporation must publish, on a website determined by the Minister, the name of the employer nominated in any application for registration referred to in section 129(12) and that employer's phone number and address.

Schedule 1—Transitional provisions

1—Interpretation

2—Average weekly earnings

3—Employer's duty to provide work

4—Monetary claims

5—Amendment of Impairment Assessment Guidelines

This Schedule provides for transitional arrangements to support the measure.

Mr TEAGUE (Heysen) (22:34): I rise to indicate that I am the lead speaker for the opposition and indicate the opposition's support for the bill. Indeed, I concur with the minister in respect of the unanimous support received in another place and that is reflected also here in the opposition's support for the bill.

I will not refer to debates in another place, but the minister's second reading speech has been the subject of leave, and we will see that recorded in the Hansard of this place shortly. I do have the benefit of the contribution of the minister in the other place and so, without referring to it, I note that I anticipate that we will soon be able to refer to that particular explanation shortly in terms of the record of the house.

I also note that I am grateful to the member for Colton for his work in his then capacity in relation to this bill, which has been on the agenda of the parliament now for some several months, if not on the Notice Paper of this place for a somewhat shorter period of time. It was introduced in the other place by the Attorney in April this year.

As I understand the minister, there are amendments that are on file and are yet to be moved in this place. I understand that those are technical in nature and I just foreshadow that I am not, as I stand here, completely across them and that is not to reflect any notice or lack thereof. I look forward to that being dealt with as efficiently as it can be in the committee stage.

The government, as I understand it, following its indication, has sought to address concerns raised about disadvantages experienced by workers with work-related dust diseases and terminal illnesses and that has resulted in the bill we have seen. If we reflect on the relevant passage of the act, section 18 of the Return to Work Act deals with an employer's duty to provide suitable employment to an injured worker once the worker can return to work. It also provides an independent process where the SAET can resolve disputes about return-to-work obligations.

If the SAET ultimately finds that the injured worker should have been provided with suitable employment, orders made by the tribunal only apply prospectively and no compensation is available for the loss the injured worker has endured over what might be a considerable period of time. It might be many months during which the dispute awaited determination.

So the bill inserts a new subsection 18(5e), which will empower the tribunal when making that section 18 order to also order that the employer make a payment to the injured worker for wages or salary that they would have received if the suitable employment had been provided.

As has been observed, the bill inserts a new subsection 18(16d) at clause 5 to confirm that where a worker is injured while working for a group of self-insured employers the duty to provide suitable employment applies across that self-insured group and is not simply siloed to the pre-injury employer alone. That is contained in a range of amendments that are the subject of clause 5 of the bill and make provision, in various ways, for the employer's duty to provide work, but in that way notably. The bill also inserts a new subsection 18(5c) to enable SAET, when making a section 18 order, to determine where a worker should be provided suitable employment within a self-insured group.

I will address the matter of dust diseases and terminal illnesses. In the Return to Work Act, a work injury must have 'stabilised' before a permanent impairment assessment can be undertaken by an accredited impairment assessor. A permanent impairment assessment determines the injured worker's degree of whole-person impairment, and this is then factored into the calculations that determine the worker's entitlement to lump sum compensation and access to other benefits. The bill inserts a new definition of 'stabilised':

…a work injury has stabilised if the worker's condition is unlikely to change substantially in the next 12 months with or without medical treatment (regardless of any temporary fluctuations in the condition that might occur).

The bill also provides amendments to allow a worker with a prescribed dust disease to elect which employment is used for the purposes of calculating their averagely weekly earnings.

I note that the government has provided a briefing that has been of assistance, and the opposition has also had the benefit of its consultation with industry bodies, including the SA Business Chamber and the MTA, which I note with appreciation. I would perhaps note more specifically that officials from ReturnToWork have provided an indication, in the course of a briefing, that there would be no impact on the scheme's sustainability or rate as the result of the implementation of the amendments that are the subject of the bill. With those observations, I again indicate the opposition's support for the bill and commend it to the house.

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (22:44): I thank the member for his contribution and his support for the bill. I note that, with a small number of government amendments that I will seek to introduce and that have been circulated, we will enter into a brief committee stage, if it is the will of the house.

Bill read a second time.

Committee Stage

In committee.

The CHAIR: Member for Heysen, which clause do you wish to start off with? Surprise me.

Mr TEAGUE: I think the committee on this occasion is for the purpose of the government amendments. I again indicate the opposition's support for the bill and am interested to dispose of the amendments as efficiently as can be, so welcome the best way to proceed with that.

The Hon. J.K. SZAKACS: If I may assist, if it may be the will of the house that I may move government amendments Nos 1 through 5 en bloc and take the opportunity—I cannot do that?

The CHAIR: They are in different clauses.

Clauses 1 to 4 passed.

New clause 4A.

The Hon. J.K. SZAKACS: I move:

Amendment No 1 [TradeInvest–1]—

Page 4, after line 17—Insert:

4A—Insertion of section 17A

After section 17 insert:

17A—Employer and Corporation not to be present at examination or treatment of worker without consent

(1) Subject to this section, a worker's employer or the Corporation must not be present while a worker is—

(a) being physically or clinically examined, or treated, by a health practitioner; or

(b) undergoing any diagnostic examination or test required for the purposes of the worker's treatment by a health practitioner.

(2) A worker's employer or the Corporation may be present while the worker is at an examination, treatment or testing referred to in subsection (1)(a) or (b)—

(a) if the worker gives written agreement to their presence in the designated form; or

(b) in circumstances prescribed by the regulations.

(3) Nothing in this section prevents a worker's employer or the Corporation from being present during a consultation involving the worker and a health practitioner for the purposes of discussing the worker's recovery and return to work.

This amendment prohibits employers and the corporation, which includes its claims agents, from being present while an injured worker is being physically or clinically examined, treated or tested by the workers' treating health practitioner. This adopts a provision similar to one that was recently introduced into WA's workers' compensation legislative scheme. Exceptions are provided for where the worker gives express written consent for the employer or the corporation to be present or where circumstances prescribed by regulations are met.

Mr TEAGUE: I appreciate the Chair's guidance in terms of what is possible. I was amenable to dealing with the amendments all in one go, particularly if that was to assist to explain them. I might just ask the minister to put on the record the genesis of the block of amendments and how long they have been in existence and how that came about.

The CHAIR: I am happy for the minister to address the various amendments in his answer, if he likes, and therefore that might satisfy your inquiries, and then we can just move through them without necessarily breaking each time.

The Hon. J.K. SZAKACS: Yes, sure. At a macro level, as I referred to in my second reading speech—and subsequent matters have been dealt with in my second reading speech which I sought to include without my reading it—it is largely administrative and largely had arisen from feedback and consultation that has occurred in the winter break since the unanimous passage of this bill in the Legislative Council, the other place.

At the guidance of the Chair, so that we can with some administrative ease seek to deal with these other amendments, government amendment No. 2 proposes to insert into the act provisions relevant to the transition from an existing set of impairment guidelines to an amended or substituted set of guidelines. It is intended that transitional provisions governing the guidelines will sit entirely within the act. This will provide clear, standardised transitional provisions applicable to all future circumstances where the guidelines are amended or substituted.

The provisions will make clear when an existing set of guidelines will be preserved for the purposes of an assessment of a permanent impairment of a worker's injury. Broadly speaking, the transitional clause establishes that the guidelines that will apply to the worker are the guidelines in force at the time the injuries have stabilised or they meet one of the exceptions provided by this bill and they attend their first appointment for assessment of permanent impairment.

Government amendment No. 3, which I will seek to move in due course, is an amendment that provides statutory clarity that backpay orders made following a section 18 dispute will not constitute designated weekly earnings and therefore will not unfairly impact determination of a worker's weekly payments entitlement.

Government amendment No. 4, which I will seek to move in due course, is an amendment that deletes an unintended duplicate clause in schedule 1, clause 5 of the bill. The final government amendment, amendment No. 5, that I will seek to move will seek to insert a new clause. This clause has arisen from the Law Society raising concerns that previous permanent impairment assessment reports would be invalidated following changes to the impairment assessment guidelines made by this bill.

Specifically, the Law Society considers that references to maximum medical improvement, or MMI as it is referred to in previous reports, would cause those reports to be invalidated under the amended guidelines. Under my proposed amendment No. 5, a reference to MMI in a previous report is to be taken to be a reference to the injury being stabilised. This avoids any doubt around the validity of reports prepared in accordance with the applicable guidelines.

Mr TEAGUE: I appreciate that mode being then adopted. In respect of the amendments, as a matter of formality I just indicate that the opposition might reserve its position between the houses, but I appreciate the minister's explanation of the amendments and how they hold together, particularly in relation to the provisions that deal with MMI as opposed to stabilisation. I do indicate that the opposition reserves its position between the houses, with a view, I expect, to being able to indicate that view in the other place.

New clause inserted.

Clauses 5 to 7 passed.

Clause 8.

The Hon. J.K. SZAKACS: I move:

Amendment No 2 [TradeInvest–1]—

Page 10, after line 34—Insert:

(a1) Section 22(6a)—delete 'If' and substitute:

Subject to subsection (6b), if

(a2) Section 22—after subsection (6a) insert:

(6b) If the Impairment Assessment Guidelines are amended or substituted, the guidelines in operation immediately before the commencement date of the amendment or substitution will continue to apply in relation to the assessment of permanent impairment of a worker's injury if, before that commencement date—

(a) the worker's injury satisfies the requirements of section 22(7)(a) of the Act; and

(b) the worker attended an appointment with an accredited medical practitioner selected in accordance with the Impairment Assessment Guidelines for the purposes of an assessment of permanent impairment of that injury.

Amendment carried; clause as amended passed.

Clause 9 passed.

New clause 9A.

The Hon. J.K. SZAKACS: I move:

Amendment No 3 [TradeInvest–1]—

Page 12, after line 30—Insert:

9A—Amendment of section 37—Prescribed benefits

Section 37—after paragraph (b) insert:

(ba) any prescribed amount ordered by the Tribunal to be paid to the worker by the employer under section 18(5e);

New clause inserted.

Clauses 10 to 13 passed.

Schedule 1.

The Hon. J.K. SZAKACS: I move:

Amendment No 4 [TradeInvest–1]—

Clause 5, page 15, lines 1 to 3 [Schedule 1, clause 5(4)]—Delete subclause (4)

Amendment No 5 [TradeInvest–1]—

Clause 5, page 15, after line 24—Insert:

(12) To avoid doubt, a reference to an injury being at MMI in a report prepared (whether before or after the commencement of this clause) for the purposes of an assessment of permanent impairment is to be taken to be a reference to the injury being stabilised.

Amendments carried; schedule as amended passed.

Long title passed.

Bill reported with amendment.

Third Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (22:56): I move:

That this bill be now read a third time.

Bill read a third time and passed.