Workers’ Compensation and Injury Management Act 1981

Reprint 6: The Act as at 5 August 2005


Guide for using this reprint

What the reprint includes

Endnotes, Compilation table, and Table of provisions that have not come into operation

1.Details about the original Act and legislation that has amended its text are shown in the Compilation table in endnote 1, at the back of the reprint. The table also shows any previous reprint.

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3.A table of provisions that have not come into operation, to be found in endnote 1a if it is needed, lists any provisions of the Act being reprinted that have not come into operation and any amendments that have not come into operation. The full text is set out in another endnote that is referred to in the table.

Notes amongst text (italicised and within square brackets)

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Notes of this kind may also be at the foot of Schedules or headings.

2.The other kind of editorial note shows something has been —

removed (because it was repealed or deleted from the law); or

omitted under the Reprints Act 1984 s. 7(4) (because, although still technically part of the text, it no longer has any effect).

The text of anything removed or omitted can be found in an earlier reprint (if there is one) or one of the written laws identified in the Compilation table.

Reprint numbering and date

1.The reprint number (in the footer of each page of the document) shows how many times the Act has been reprinted. For example, numbering a reprint as “Reprint 3” would mean that the reprint was the 3rd reprint since the Act was passed. Reprint numbering was implemented as from 1 January 2003.

2.The information in the reprint is current on the date shown as the date as at which the Act is reprinted. That date is not the date when the reprint was published by the State Law Publisher and it is probably not the date when the most recent amendment had effect.

 

 

 

Reprinted under the Reprints Act 1984 as

at 5 August 2005

Workers’ Compensation and Injury Management Act 1981

CONTENTS

Part I — Preliminary

1.Short title2

2.Commencement2

3.Purposes2

4.General application3

5.Definitions5

5A.Indexation of certain amounts16

Part II — Application of this Act in respect of certain persons and bodies

6.Local governments and other authorities18

7.Tributers18

8.Baptist clergymen18

9.Anglican clergy18

10.Other clergymen19

10A.Exclusion of certain working directors19

11.Exclusion of certain persons who are contestants in sporting or athletic activities20

11A.Jockeys20

12.Compensation not payable in certain cases21

13.Continued operation of this Act where compensation previously paid21

14.Application to worker in employment of Crown22

16.Act to apply as to disability to persons employed on Western Australian ships22

17.Crew of fishing vessel24

Part III — Compensation

Division 1 — Disability — general

18.Liability of employers to workers for disabilities25

19.Personal injury by accident arising out of or in course of employment25

20.Compensation not payable unless worker’s employment connected with this State26

21.Compensation from date of incapacity28

22.Serious and wilful misconduct28

23.Person not to be compensated twice29

Division 1a — Determination by courts and recognition of determination

23A.Definition29

23B.Determination of State with which worker’s employment is connected in proceedings under this Act30

23C.Determination by the District Court of State with which worker’s employment is connected30

23D.Recognition of previous determinations30

23E.Determination may be made by consent31

Division 2 — Lump sum payments for specified injuries

24.Compensation for injuries mentioned in Schedule 231

24A.Lump sum compensation for noise induced hearing loss32

24B.Election under section 24 or 24A33

25.“Loss of ”34

26.Subsequent injuries35

27.Compensation in accordance with table at date of accident36

28.Limit on compensation of worker electing36

29.Compensation while incapacity continues36

30.Compensation payable before election37

31.Schedule 2 interpretation37

Division 3 — Disability — specified industrial diseases

32.Compensation of worker dying from or affected by certain industrial diseases (Schedule 3)38

33.Pneumoconiosis, mesothelioma or lung cancer38

34.Worker suffering from chronic bronchitis and pneumoconiosis39

35.Worker suffering from lung cancer and pneumoconiosis39

36.Reference to medical panel40

37.Oral submission by medical practitioner40

38.Questions for determination by a medical panel41

39.Worker disabled by tuberculosis and pneumoconiosis42

40.Interpretation of this Division in cases of death without prior incapacity42

41.Last employer liable but may join others43

42.Relevant earnings44

43.Employer to whom notice to be given44

44.Disease deemed due to nature of employment44

45.Additions to Schedule 344

46.Compensation limited to prescribed amount45

47.Certain workers not to benefit46

48.Notification of disease47

Division 4 — Disability — specified losses of functions

49.Disablement due to loss of function (Schedule 4)48

51.Compensation recoverable from last employer48

52.How compensation calculated49

53.Employer to whom notice given49

54.Loss of function deemed due to nature of employment49

55.Additions to Schedule 450

Division 5 — Commencement, review, suspension, and cessation of payments

56.Entitlement to weekly payments ceasing on account of age50

57.Saving as to expenses51

57A.Claims procedure — insured employer51

57B.Claims procedure — self‑insurer or uninsured employer54

57C.Notification to Commission56

57D.Confidentiality58

58.Directorate may determine liability58

59.Information as to remunerated work60

60.Application for discontinuance or reduction of weekly payments62

61.Unlawful discontinuance of weekly payments62

62.Review of weekly payments65

63.No compensation during suspension65

64.Medical examination65

65.Periodical medical examination66

66.Regulations as to medical examination66

67.Lump sum in redemption of weekly payments66

68.Calculation of lump sum67

69.Worker not residing in the State68

70.Reference to medical assessment panel68

71.Recovery of payments69

72.Suspension of payments69

Division 6 — Disputes between employers

73.Worker entitled but dispute between employers70

74.Dispute between insurers71

74A.Apportionment under sections 73 and 7472

75.Obligation to make weekly payments preserved72

Division 7 — Agreements

76.Registration of memorandum of agreement73

77.Registration obligatory76

78.Effect of non‑registration of agreement76

Division 8 — Other matters affecting compensation

79.Wilful and false representation76

80.Effect on annual leave, long service leave and sick leave76

81.Effect on public holidays pay77

82.Recovery of cost of services rendered77

83.Industrial award and partial incapacity78

84.Worker not to be prejudiced by resuming work78

84AA.Employer to keep position available during worker’s incapacity79

Part IIIA — Dispute resolution

Division 1 — General

84A.Definitions80

84B.Exclusive jurisdiction80

84C.Dependants81

84D.Relief or redress not restricted to claim81

84E.Order as to total liability81

84F.Orders relating to payment of compensation in respect of persons under legal disability or who are dependants82

84G.Particular details in order or agreement for a lump sum payment83

84H.Dispute resolution body may regard illegal contracts of employment as valid84

84I.Requirements for taking proceedings84

84J.Worker making statement to employer or insurer87

84K.Provision of certain documents before commencement of proceedings87

84L.Evidence of communication between worker and officer of Commission88

84M.Payment of compensation awarded89

Division 2 — Conciliation

84N.Referral for conciliation89

84O.Allocation of matters89

84P.When and how conciliation is to take place89

84Q.Powers90

84R.Medical issues90

84S.Medical and other expenses91

84T.Interpreters91

84U.Failure to attend91

84V.Payments under direction etc. not admission of liability91

84W.Offences92

84X.Costs92

84Y.Review92

Division 3 — Review

84Z.Allocation of matters93

84ZA.When and how review is to take place93

84ZB.Powers94

84ZC.Offences95

84ZD.Rules of evidence not to apply96

84ZE.Representation permitted96

84ZF.Orders generally96

84ZG.Weekly payments97

84ZH.Medical issues98

84ZI.Reasons for decisions98

84ZJ.Interpreters98

84ZK.Failure to attend99

84ZL.Costs99

84ZM.Case may be referred to compensation magistrate’s court99

84ZN.Appeal100

Division 4 — Determination by compensation magistrate’s court

84ZO.Referred matters101

84ZP.Appeal101

84ZQ.Costs as between representative and client101

84ZR.Medical issues102

84ZS.Time for application102

84ZT.Enforcement of orders etc. upon conciliation or review102

Division 5 — Cases stated and appeals to Supreme Court

84ZU.Magistrate may state case104

84ZV.Indemnity as to costs104

84ZW.Appeal105

84ZX.Court of Appeal105

84ZY.Procedure and jurisdiction105

Division 6 — Enforcement of compensation magistrate’s court judgments

84ZZ.Judgments, enforcement of106

Part IV — Civil proceedings in addition to or independent of this Act

Division 1 — General

85.Saving — motor vehicle cases107

86.Saving — independent liability107

87.Costs between solicitor and client in common law actions107

91.Where action brought for injury for which compensation is payable under this Act108

92.Both damages and compensation not recoverable108

93.Remedies against stranger111

Division 1a — Choice of law

93AA.The applicable substantive law for work disability claims112

93AB.Claims to which Division applies113

93AC.What constitutes disability and employment114

93AD.Claim in respect of death included115

93AE.Meaning of “substantive law”115

93AF.Availability of action in another State not relevant116

Division 2 — Constraints on awards of common law damages

93A.Definitions for this Division116

93B.Application of this Division117

93C.Limit on powers of courts118

93D.Assessment of disability118

93E.Restrictions on awarding of damages and payment of compensation121

93EA.Referring questions with fresh evidence in particular cases124

93EB.Referring questions in certain other cases126

93EC.Extended time for commencing proceedings128

93F.Restrictions on awarding and amount of damages if disability less than 30%128

93G.Regulations131

Part V — WorkCover Western Australia Authority

Division 1 — Constitution, purposes, and powers

94.WorkCover Western Australia Authority132

95.WorkCover WA’s governing body133

96.Term of office135

97.Meetings136

98.Defects not to invalidate proceedings137

99.Conditions of appointment137

100.Functions of WorkCover WA137

100A.Advisory committees139

100B.Disclosure of information140

101.Powers140

101AA.Delegation by WorkCover WA141

101A.Borrowings by WorkCover WA142

101B.Guarantees of borrowings143

102.Limitation on powers143

103A.Returns143

104.Publishing and furnishing information144

Division 1AA — Personal interest

104AA.Disclosure of interests144

104AB.Exclusion of interested member145

104AC.Resolution that section 104AB inapplicable145

104AD.Quorum where section 104AB applies145

104AE.Minister may declare sections 104AB and 104AD inapplicable146

Division 1A — Conciliation and Review Directorate

104A.Establishment146

104B.Responsibility146

Division 2 — Accounts and audit

105.Application of Financial Administration and Audit Act 1985147

Division 3 — Workers’ Compensation and Injury Management General Fund

106.General Fund147

107.Estimates149

108.Total contributions150

109.Contributions to General Fund by insurers150

Division 4 — Workers’ Compensation and Injury Management Trust Fund

110.Trust Fund153

Division 5 — Ministerial control

111.Minister may give directions154

111A.Minister to have access to information155

Part VI — Compensation magistrate’s courts

112.Establishment of compensation magistrate’s courts156

113.Constitution of compensation magistrate’s courts156

114.Clerks of compensation magistrate’s court157

115.Jurisdiction of compensation magistrate’s courts157

116.Compensation magistrate’s court to determine on substantial merits158

117.Determination final159

118.Compensation magistrate’s court may reconsider decision159

119.Fund to bear cost of compensation magistrate’s courts159

120.Compensation magistrate’s court records, access to159

Part VII — Medical assessment panels

145.Exclusion161

145A.Questions that have to be referred161

145B.Register for panel membership162

145C.Panel to be constituted162

145D.Procedures162

145E.Determinations164

145F.Review164

145G.Remuneration165

Part VIII — Premium Rates

151.Fixing premiums166

151A.Report as to rates167

152.Loading not to exceed 100% unless permitted by WorkCover WA167

153.Fixing maximum loading or discount167

153A.Minimum premiums168

154.Appeals168

154A.Regulations for provision of information169

154AB.Special directions by Minister170

154AC.Regulations for subsidy from Supplementation Fund170

Part IX — Rehabilitation

155.Notice of certain periods of incapacity171

156.Further inquiries172

156A.Approval of rehabilitation providers172

157.Rehabilitation of workers172

158.Further vocational rehabilitation payments may be authorised173

158A.Rehabilitation services by employers174

158B.Rehabilitation policy and guidelines174

159.Coordinating facilities174

Part X — Insurance

Division 1 — Liability of employers and insurers

160.Employer to obtain insurance175

161A.Penalty — issue or renewal of policy without approval177

161.Approvals177

162.The State Government Insurance Commission sole insurer against certain industrial diseases179

163.Payment of industrial disease premium and issue of policy179

164.Exempt employer179

165.Review of exemptions180

166.Other cancellations182

167.Effect of cessation of exemption182

168.Cessation of exemption182

169.Forms of policy183

170.Penalty — uninsured worker183

171.Insurance offices to furnish certain statements186

172.WorkCover WA may pass on certain information to insurer187

173.Worker’s rights against insurer188

174.Payment to worker from General Fund189

174AA.Recovery from responsible officers of body corporate191

174A.Insurer may not refuse to indemnify in certain circumstances192

Division 2 — Insurance by principals, contractors, and sub‑contractors

175.Principal contractor and sub‑contractor deemed employers192

Division 3 — Inspectors

175A.Authorisation194

175B.Powers195

175C.Interpreters196

175D.Offences196

Part XI — Regulations

176.Regulations, rules and practice notes198

Part XII — Miscellaneous

177.Public Service202

177A.Delegation by chief executive officer202

178.Agreements and receipts under this Act exempt from stamp duty203

179.Order for detention of ship203

180.Judicial notice204

180A.District Court to provide information to WorkCover WA205

181.Prohibition of contracting out205

182.Deductions towards compensation not lawful205

183.Payments not assignable205

184.Protection from liability206

185.Immunity207

186.Protection for compliance with this Act207

187.Proceedings for defamation not to lie208

188.Fraud208

188A.Exclusive jurisdiction for offences208

188B.Who can take proceedings for offences209

188C.Time limit for taking proceedings209

189.General penalty209

190.Fines210

191.Penalties not affected210

192.WorkCover WA may specify alternative form of sending information210

192A.Publication of prescribed amount and average weekly earnings210

Part XIII — Repeal, savings, and transitional

193.Definitions212

194.Repeal212

195.Operation of Interpretation Act 1918212

196.No renewal of liability or entitlement212

197.Moneys paid under repealed Act taken into account212

199.Compensation for injuries mentioned in Schedule 2213

200.Child’s allowance213

201.Continuation213

202.References to the Board, the Supplementary Board or officers216

Schedules

Schedule 1  Compensation entitlements

1.Death — dependants wholly dependent217

2.Death — partial dependants who are not children218

3.Death — partial dependants who are children219

4.Death — no dependant219

5.Death — where not resulting from the disability but weekly payments had been made219

7.Amount of compensation in case of total or partial incapacity221

8.Deemed total incapacity222

9.No incapacity — medical expenses222

10.Absence from work for medical attendance222

11.Weekly earnings223

12.Part‑time worker225

13.Concurrent contracts226

14.Casual or seasonal worker226

15.Board and lodging226

16.Variation of weekly payments227

17.Payment of medical and other expenses227

18.Hospital charges229

18A.Payment of additional expenses229

19.Travelling230

Schedule 2 — Table of compensation payable232

Schedule 3 — Specified industrial diseases235

Schedule 4 — Specified losses of functions238

Schedule 5 — Exceptions to cessation of weekly payments by reason of age

1.Definitions239

1A.Successive lung diseases to be regarded as one240

2.Incapacity for work resulting from disabilities other than pneumoconiosis, mesothelioma and lung cancer240

3.Incapacity for work resulting from disabilities of pneumoconiosis, mesothelioma and lung cancer — weekly payments240

4.Election to take redemption amount as lump sum or supplementary amount weekly243

5.Requirements for election under clause 4244

6.Effect of receiving the redemption amount as a lump sum245

7.Effect of receiving supplementary amount245

8.Payment of supplementary amount246

9.Death of a worker prior to commencement of section 49 of Workers’ Compensation and Assistance Amendment Act 1990247

Schedule 6 — Adjacent areas

1.Terms used in this Schedule248

2.Adjacent areas248

Schedule 7 — Noise induced hearing loss

1.Definitions250

2.Audiometric tests250

3.Employer to arrange and pay for audiometric test251

4.Carrying out of audiometric tests251

5.Communication and storage of audiometric test results252

6.Reference to medical assessment panel252

7.Re‑test of person’s hearing253

8.Determination of hearing loss254

9.Audiometric test not conclusive proof that hearing loss is noise induced255

10.Prescribed workplaces255

Notes

Compilation table256

Provisions that have not come into operation261

Defined Terms

 

 

Crest

Reprinted under the Reprints Act 1984 as

at 5 August 2005

Workers’ Compensation and Injury Management Act 1981

An Act to amend and consolidate the law relating to compensation for and the rehabilitation of workers suffering disability by accident or disease in the course of their employment, to provide for the WorkCover Western Australia Authority and dispute resolution bodies, and for related purposes.

[Long title amended by No. 96 of 1990 s. 4; No. 48 of 1993 s. 28(1); No. 42 of 2004 s. 4(b).]

Part I  Preliminary

1.Short title

This Act may be cited as the Workers’ Compensation and Injury Management Act 1981 1.

[Section 1 amended by No. 96 of 1990 s. 5; No. 42 of 2004 s. 5.]

2.Commencement

The provisions of this Act shall come into operation on such day or days as is or are, respectively, fixed by proclamation1.

3.Purposes

The purposes of this Act are — 

(a)to make provision for the compensation of — 

(i)workers who suffer a disability; and

(ii)certain dependants of those workers where the death of the worker results from such a disability;

(b)to promote the rehabilitation of those workers with a view to restoring them to the fullest capacity for gainful employment of which they are capable;

(c)to promote safety measures in and in respect of employment aimed at preventing or minimizing occurrences of disabilities; and

(d)to make provision for the hearing and determination by the dispute resolution bodies of disputes between parties involved in workers’ compensation matters in a manner that is fair, just, economical, informal and quick.

[Section 3 amended by No. 72 of 1992 s. 4; No. 48 of 1993 s. 28(1).]

4.General application

(1)In this section proclaimed date means the date on which this section comes into operation 1.

(2)This Act — 

(a)applies to and in respect of — 

(i)liability and the extent of liability to pay compensation and to pay for the provision of other benefits;

(ii)the requirement to obtain and keep current a policy of insurance for the full amount of that liability; and

(iii)entitlement and the extent of entitlement to receive compensation and other benefits,

in relation to disability or death, as set out in the following cases — 

(iv)for incapacity occurring, or continuing to occur, on or after the proclaimed date, whether the disability from which the incapacity resulted occurred or first occurred before, on, or after that date, but in the case of a disability which occurred before that date, only if that disability was, or was deemed to be, a compensable injury under the repealed Act;

(v)for injuries mentioned in Schedule 2, whether the date of the accident whereby that injury was caused to the worker occurred before, on, or after that date, but in the case of an accident which occurred before that date only if that injury was an injury under the Second Schedule of the repealed Act;

(vi)for death which occurs on or after the proclaimed date, where death resulted from a disability which occurred or first occurred before, on, or after the proclaimed date, but in the case of a disability which occurred before that date only if that disability was, or was deemed to be, a compensable injury under the repealed Act;

(vii)for death which occurs on or after the proclaimed date, where death did not result from the disability but for the purposes of clause 5 the period of 6 months referred to in that clause commenced before, on, or after that date;

(viii)for weekly amounts payable to children in respect of periods on and after the proclaimed date for death which occurred before, on, or after that date;

(ix)for such expenses as are provided for in clauses 4, 9, 17, 18, and 19, incurred on and after the proclaimed date, and for amounts payable under clause 10 for absences from work, on or after the proclaimed date whether the events or circumstances giving rise to those expenses or absences from work occurred or first occurred before, on, or after the proclaimed date, but in the case of events or circumstances which occurred before that date only if they would have given rise to payment of those expenses or for absences from work under the repealed Act;

(b)applies to and in respect of rehabilitation of a worker under Part IX, whether the disability referred to in that Part occurred or first occurred before, on, or after the proclaimed date; and

(c)applies to and in respect of the exercise of functions and powers and the performance of duties in relation, and incidental, to the matters referred to in paragraphs (a) and (b).

5.Definitions

(1)In this Act, unless the contrary intention appears — 

approved insurance office means an insurance office approved under section 161;

approved rehabilitation provider means a person approved under section 156A as a rehabilitation provider or the Commission;

approved treatment means occupational therapy, clinical psychology, speech therapy and any treatment of a kind approved by the Minister for the purposes of this definition by notice published in the Gazette;

chief executive officer means the person appointed under the Public Sector Management Act 1994 to the office of chief executive officer of WorkCover WA and includes a person appointed to act in the place and during the absence of the chief executive officer while that person is so acting;

child’s allowance means — 

(a)for the financial year ending on 30 June 1982, the amount of $15.37;

(b)for any financial year ending after 30 June 1982 but before 1 July 1985, the amount obtained by varying the child’s allowance for the preceding financial year by the percentage by which the minimum award rate varies between the second‑last 1 April before the financial year commences and the last 31 March before the financial year commences; and

(c)for any subsequent financial year, the nearest multiple of 10 cents to the amount obtained by varying the child’s allowance for the preceding financial year by the percentage by which the minimum award rate varies between the second‑last 1 April before the financial year commences and the last 31 March before the financial year commences, or if the relevant minimum award rates are not published, the amount obtained by varying the child’s allowance for the preceding financial year in accordance with the regulations (with an amount that is 5 cents more than a multiple of 10 cents being rounded off to the next highest multiple of 10 cents);

chiropractor means a person who is resident in this State and is registered as a chiropractor under the Chiropractors Act 1964 and holds a licence to practise chiropractic issued by the Chiropractors Registration Board constituted under that Act;

clause means — 

(a)where the term is used in or in respect of a particular Schedule, a clause in that Schedule; and

(b)otherwise, a clause of Schedule 1;

company means a company or a registered body within the meaning of the Corporations Act 2001 of the Commonwealth, other than a registered body specified, or of a kind specified, in the regulations;

compensation magistrate’s court means a compensation magistrate’s court established in accordance with Part VI;

conciliation officer means a conciliation officer appointed in accordance with Division 1A of Part V;

contract of insurance includes a cover note;

de facto partner in relation to compensation payable in respect of the death of a worker means —

(a)a person who, immediately before the death of the worker, was living in a de facto relationship with the worker and had been living on that basis with that worker for at least the previous 2 years; and

(b)any former de facto partner of the worker if the worker was legally obliged immediately before the death of the worker to make provision for that former de facto partner with respect to financial matters;

dentist means — 

(a)a person who is resident in a State or Territory of the Commonwealth and is entitled to practise as a dentist in accordance with the laws of that State or Territory; or

(b)a person who is not resident in a State or Territory of the Commonwealth but who is recognised as a dentist for the purposes of this Act by WorkCover WA;

dependants means such members of the worker’s family as were wholly or in part dependent upon the earnings of the worker at the time of his death, or would, but for the disability, have been so dependent;

Director means the Director of Conciliation and Review appointed in accordance with Division 1A of Part V;

Directorate means the Directorate of Conciliation and Review established in accordance with Division 1A of Part V;

disability means — 

(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer’s instructions;

(b)a disabling disease to which Part III Division 3 applies;

(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree;

(d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or

(e)a disabling loss of function to which Part III Division 4 applies,

but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer;

disabled from earning full wages means rendered less able to earn full wages;

disease includes any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development;

dispute resolution body means a review officer or compensation magistrate’s court and in sections 84F and 84H includes a conciliation officer;

District Court means The District Court of Western Australia established under the District Court of Western Australia Act 1969;

Division means a Division of the Part wherein the term is used;

drug of addiction means drug of addiction as defined by section 5 of the Poisons Act 1964;

earnings includes weekly payments of compensation under this Act;

employer includes any body of persons, corporate or unincorporate, and the legal personal representative of a deceased employer, and, where the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of employment the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the worker whilst he is working for that other person;

the term employer shall extend to any person for or by whom any worker, as defined in paragraph (a) or (b) of the definition of “worker”, works or is engaged; and

employer in relation to liability to pay compensation for or in respect of a disability to a worker, means the employer in the relevant employment;

estimate means the estimate prepared and approved as provided by section 107(1);

General Fund means the Workers’ Compensation and Injury Management General Fund established under this Act;

industrial agreement means an agreement which wholly or partially regulates the terms or conditions of employment;

industrial award means —

(a)an award or order (including an enterprise order or General Order) made by The Western Australian Industrial Relations Commission under the Industrial Relations Act 1979;

(b)an industrial agreement as defined in the Industrial Relations Act 1979;

(c)an award under the Coal Industry Tribunal of Western Australia Act 1992; or

(d)an award or certified agreement, as those terms are defined in the Workplace Relations Act 1996 of the Commonwealth,

as the relevant employment requires;

industrial disease premium means the additional industrial disease premium fixed pursuant to section 151(a)(iii);

inspector” means a person authorised as an inspector under section 175A(1);

medical assessment panel means a medical assessment panel constituted under Part VII;

medical practitioner means — 

(a)a person who is resident in a State or Territory of the Commonwealth and is entitled to practise as a medical practitioner in accordance with the laws of that State or Territory; or

(b)a person who is not resident in a State or Territory of the Commonwealth but who is recognised as a medical practitioner for the purposes of this Act by WorkCover WA;

member of a family means spouse, de facto partner, parent, grandparent, step‑parent; any person who stands in the place of a parent to another person and also that other person, son, daughter, ex‑nuptial son, ex‑nuptial daughter, grandson, grand‑daughter, step‑son, step‑daughter (whether the step‑son or step‑daughter is legally adopted by the worker or not), brother, sister, half‑brother, half‑sister; and with respect to an ex‑nuptial worker includes the worker’s parents, and his brothers and sisters, whether legitimate or ex‑nuptial, who have at least one parent in common with the worker;

mesothelioma means primary malignant neoplasm of the mesothelium (diffuse mesothelioma) of the pleura or the peritoneum;

mine or mining operation means a mine or mining operation of a class prescribed for the purposes of this definition;

minimum award rate means the weighted average minimum award rate for adult males under Western Australian State Awards, as published by the Australian Statistician;

noise induced hearing loss means a noise induced loss or diminution of a worker’s hearing that is permanent and is due to the nature of any employment in which the worker was employed, other than a personal injury by accident;

notional residual entitlement in relation to a deceased worker, means a sum equal to — 

(a)if section 56 or Schedule 5 clause 2 applied to any incapacity resulting from the relevant disability, the aggregate of weekly payments for total incapacity of the worker at a rate calculated and varied in accordance with Schedule 1 as at the date of his death, for a period from that date up to the date when weekly payments of compensation would have ceased by reason of age, less the amount of any lump sum paid in redemption of weekly payments and the amount of any sum paid under Schedule 2, for that disability; or

(b)the prescribed amount as at the date of his death, less the amount of any weekly payments made, the amount of any lump sum paid in redemption of weekly payments, and the amount of any sum paid under Schedule 2, for that disability,

whichever is the less;

physiotherapist means a person who is resident in the Commonwealth or a Territory of the Commonwealth and is registered as a physiotherapist in accordance with the laws of a State or Territory of the Commonwealth;

prescribed amount means —

(a)in relation to the financial year ending on 30 June 2000, $119 048;

Note:This is the nearest whole number of dollars to the amount obtained by multiplying by 208 the average of the amounts that the Australian Statistician published as the all employees average weekly total earnings in Western Australia for pay periods ending in the months of May, August and November 1998 and February 1999.

(b)in relation to any subsequent financial year, the nearest whole number of dollars to —

(i)the amount obtained by varying the prescribed amount for the preceding financial year by the percentage by which the amount that the Australian Statistician published as the Wages Cost Index, ordinary time hourly rates of pay (excluding bonuses) for Western Australia (the WCI) varied between the second‑last December quarter before the financial year commenced and the last December quarter before the financial year commenced; or

(ii)if the calculation under subparagraph (i) cannot be performed in relation to a financial year because the WCI for a relevant quarter was not published, the amount obtained by varying the prescribed amount for the preceding financial year in accordance with the regulations,

with an amount that is 50 cents more than a whole number of dollars being rounded off to the next highest whole number of dollars;

rehabilitation includes, but is not limited to, vocational rehabilitation;

relevant employment means — 

(a)the employment in which the personal injury by accident occurred;

(b)the last employment, during the period of one year mentioned in section 32 or, in the case of pneumoconiosis or mesothelioma, the last employment, to the nature of which the disabling Schedule 3 disease is, or was, due;

(c)the employment in the course of which the disease was contracted and which was a contributing factor and contributed to a significant degree;

(d)the employment which contributed and contributed to a significant degree to the recurrence, aggravation, or acceleration of the pre‑existing disease; or

(e)the last employment, during the period of 3 years mentioned in section 49, to the nature of which the disabling Schedule 4 loss of function is, or was, due,

as the case requires;

repealed Act means the Act repealed by section 194;

review officer means a review officer appointed in accordance with Division 1A of Part V;

self‑insurer means employer whom, or employer belonging to a group of employers which, the Governor exempts under section 164 from the obligation to insure pursuant to this Act except for the obligation to insure against liability to pay compensation for any industrial disease of the kinds referred to in section 151(a)(iii);

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

(a)a barge, lighter, or other floating vessel; and

(b)an air‑cushion vehicle, or other similar craft,

used wholly or primarily in navigation by water;

specialist means a medical practitioner — 

(a)who is resident in the State and who is registered as a specialist under section 11A of the Medical Act 1894; or

(b)who is not resident in the State, but who is recognised as a specialist for the purposes of this Act by WorkCover WA;

spouse in relation to compensation payable in respect of the death of a worker, includes any former spouse of the worker if the worker was legally obliged immediately before the death of the worker to make provision for that former spouse with respect to financial matters;

State includes Territory;

State Government Insurance Commission means the State Government Insurance Commission 2 established by the Insurance Commission of Western Australia Act 1986;

State Government Insurance Corporation means the State Government Insurance Corporation 3 established by the Insurance Commission of Western Australia Act 1986;

the Chairman of WorkCover WA means the person appointed to the office of Chairman of WorkCover WA’s governing body and includes a person appointed to act in the place and during the absence of the Chairman while that person is so acting;

tributer means a person who works a mine under an agreement with the lessee or owner of the mine to pay or receive from the lessee or owner a portion of the percentage product taken from the mine;

Trust Fund means the Workers’ Compensation and Injury Management Trust Fund established under this Act;

vocational rehabilitation means, in relation to workers who have suffered a disability compensable under this Act, the progressive and coordinated use of measures for counselling, occupational and vocational training and retraining, work assessment, and the use of aids, appliances, services or other means to facilitate the restoration of those workers to the fullest capacity for gainful employment of which they are capable;

weekly payments of compensation, in respect of the prescribed amount, include payments made under clause 10 and weekly payments of the supplementary amount made under Schedule 5 clause 2;

WorkCover WA means the WorkCover Western Australia Authority referred to in section 94;

worker does not include a person whose employment is of a casual nature and is not for the purpose of the employer’s trade or business, or except as hereinafter provided in this definition a member of the police force, or except as hereinafter provided in this definition a member of the employer’s family dwelling in his house; but save as aforesaid, means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or otherwise and whether the contract is expressed or implied, is oral or in writing;

the term worker, save as hereinbefore provided in this definition, includes a member of the police force, who suffers a disability and dies as a result of that disability, and any member of the employer’s family dwelling in his house whose name, employment, and estimated wages are disclosed, at the time of employment and thereafter from time to time when the insurance is renewed, in writing to the insurer of the employer’s liability to pay compensation under this Act;

the term worker save as aforesaid, also includes — 

(a)any person to whose service any industrial award or industrial agreement applies; and

(b)any person engaged by another person to work for the purpose of the other person’s trade or business under a contract with him for service, the remuneration by whatever means of the person so working being in substance for his personal manual labour or services,

and any reference to a worker who has suffered a disability shall, where the worker is dead, include a reference to his legal personal representative or to his dependants or other person to whom or for whose benefit compensation is payable.

[(2), (3)repealed]

(4)For purposes of the definition of disability, the matters are as follows — 

(a)the worker’s dismissal, retrenchment, demotion, discipline, transfer or redeployment;

(b)the worker’s not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and

(c)the worker’s expectation of — 

(i)a matter; or

(ii)a decision by the employer in relation to a matter,

referred to in paragraph (a) or (b).

(5)In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of disability and relevant employment, the following shall be taken into account — 

(a)the duration of the employment;

(b)the nature of, and particular tasks involved in, the employment;

(c)the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment;

(d)the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease;

(e)matters affecting the worker’s health generally; and

(f)activities of the worker not related to the employment.

[Section 5 amended by No. 79 of 1983 s. 2; No. 44 of 1985 s. 3; No. 51 of 1986 s. 46(2); No. 85 of 1986 s. 4; No. 86 of 1986 s. 5 and 6; No. 21 of 1987 s. 3; No. 36 of 1988 s. 4; No. 96 of 1990 s. 6; No. 72 of 1992 s. 16(3); No. 48 of 1993 s. 18, 21, 28(1) and 29; No. 62 of 1994 s. 109; No. 34 of 1999 s. 4 and 32(1); No. 10 of 2001 s. 218; No. 28 of 2003 s. 214; No. 36 of 2004 s. 4; No. 42 of 2004 s. 8(1)‑(3) and 150.]

5A.Indexation of certain amounts

(1)An amount that a provision of this Act describes as applying in accordance with this section is —

(a)before 1 July 1997, the amount that was prescribed for the purposes of that provision; and

(b)for a financial year commencing on or after 1 July 1997, the nearest whole number of dollars to the amount obtained by varying the amount applying at the commencement of the preceding financial year by the percentage by which the March CPI varies from the March CPI for the preceding financial year, or if the relevant index numbers are not published, the amount obtained by varying the amount applying at the commencement of the preceding financial year in accordance with the regulations (with an amount that is 50 cents more than a whole number of dollars being rounded off to the next highest whole number of dollars).

(2)In this section March CPI, for a financial year, means the index number for the quarter ending on the last 31 March before the financial year commences, as shown in the Consumer Price Index Numbers (All Groups Index) for Perth published by the Commonwealth Statistician under the Census and Statistics Act 1905 of the Commonwealth.

[Section 5A inserted by No. 34 of 1999 s. 5.]

Part II  Application of this Act in respect of certain persons and bodies

6.Local governments and other authorities

The exercise and performance of the powers and duties of a local government or other public, or statutory authority shall, for the purposes of this Act, be treated as the trade or business of such local government or other authority.

[Section 6 amended by No. 14 of 1996 s. 4.]

7.Tributers

(1)For the purposes of this Act a tributer, and any wages man employed by the tributer, shall be deemed a worker, and the lessee or owner of the mine let on tribute shall be deemed an employer of the tributer or wages man.

(2)The earnings of the tributer shall be deemed to be equal to the ruling rate of wages for miners as prescribed for the time being by the current industrial award in force in the district in which the mine is situated.

[Section 7 amended by No. 42 of 2004 s. 9.]

8.Baptist clergymen

In this Act worker includes a clergyman who is recognised as an accredited minister and who is in full‑time active ministry in an affiliated Baptist Church under the constitution and by‑laws of the Baptist Union of Western Australia Incorporated and the Baptist Union of Western Australia Incorporated is, for the purposes of this Act, deemed to be the employer of such a clergyman.

9.Anglican clergy

In this Act worker includes a member of the clergy of the Anglican Church of Australia being a bishop, or a member of the clergy licensed by the bishop, of a diocese of the church in the State and, for the purpose of this Act, the Anglican Archbishop of Perth is deemed to be the employer.

[Section 9 inserted by No. 72 of 1992 s. 5.]

10.Other clergymen

At the request of the governing body of any other church, the Minister — 

(a)may, by notice published in the Gazette, declare that in this Act worker includes a clergyman, as defined in the notice, of that church and, if the Minister so declares, he shall also declare, in the same notice, who is, for the purposes of this Act, deemed to be the employer of such a clergyman, and thereupon the notice shall have effect according to its terms as if they were provided in this Act; and

(b)may at any time by subsequent notice so published cancel or amend the first‑mentioned notice and thereupon the subsequent notice shall have effect according to its terms as if they were provided in this Act.

10A.Exclusion of certain working directors

(1)Notwithstanding anything in section 5 a person is not a worker within the meaning of this Act while the person is —

(a)a director of a company in any share of which the person has a beneficial interest; and

(b)engaged or employed by or working for that company,

if the employer company has not complied with section 160 on the basis that the person is a worker.

(2)Subsection (1) does not prevent the employer, when complying with section 160, from doing so on the basis that the person referred to in that subsection is a worker.

(3)An employer who has complied with section 160 on the basis that a person referred to in subsection (1) is a worker is not required to continue to comply with that section on that basis and, if the employer does not continue to do so, the person ceases to be a worker within the meaning of this Act.

[Section 10A inserted by No. 34 of 1999 s. 6.]

11.Exclusion of certain persons who are contestants in sporting or athletic activities

Notwithstanding anything in section 5 and subject to section 11A, a person is deemed not to be a worker within the meaning of this Act while he is, pursuant to a contract — 

(a)participating as a contestant in any sporting or athletic activity;

(b)engaged in training or preparing himself with a view to his so participating;

(ba)engaged in promotional activities in accordance with the contract pursuant to which he so participates; or

(c)engaged on any regular journey, daily, or other periodic journey, or other journey in connection with his so participating or being so engaged,

if, under that contract, he is not entitled to any remuneration other than remuneration for the doing of those things.

[Section 11 amended by No. 44 of 1985 s. 5; No. 34 of 1999 s. 7.]

11A.Jockeys

(1)Notwithstanding section 11, for the purposes of this Act worker includes a person licensed as a jockey under the Racing and Wagering Western Australia Act 2003 — 

(a)riding a horse in any race run under the management of a racing club registered under the Racing and Wagering Western Australia Act 2003; or

(b)engaged on a racecourse in riding work, or carrying out the usual duties of a jockey, for a trainer licensed as a trainer under the Racing and Wagering Western Australia Act 2003,

and Racing and Wagering Western Australia is, for the purposes of this Act, deemed to be the employer of such a person.

(2)The earnings of a person included as a worker under subsection (1) shall be deemed to be equal to the rate of wages, including special allowances, prescribed for stable foremen under the Horse Training Industry Award 1976 as made under the Conciliation and Arbitration Act 1904 4 of the Commonwealth and amended from time to time.

[Section 11A inserted by No. 44 of 1985 s. 6; amended by No. 35 of 2003 s. 244.]

12.Compensation not payable in certain cases

(1)A person is not entitled to claim or receive compensation under this Act, in respect of a disability to or the death of a person that occurred before the coming into operation of section 3 of the Workers’ Compensation Act Amendment Act (No. 2) 1977 5 if, had that section been in force when the disability or death occurred, the person who was disabled or died would not have been a worker within the meaning of this Act by reason only of the amendments made by that section.

(2)Subsection (1) does not apply to or in relation to compensation in respect of which proceedings had been commenced in the Board before 5 July 1977.

13.Continued operation of this Act where compensation previously paid

Nothing in sections 11 or 12 in any way affects or limits the operation of this Act apart from those sections in relation to a disability to or the death of a person if any person, at any time before 28 November 1977, received compensation under the repealed Act in respect of that disability or death, and this Act continues to apply to the liability for and the right to compensation in respect of that disability or death as if those sections were not in this Act.

14.Application to worker in employment of Crown

(1)In this section Crown means Crown in right of the State.

(2)This Act applies to workers employed by or under the Crown to whom this Act would apply if the employer were a private person.

(2a)For the purposes of this Act, a person — 

(a)who is not a worker referred to in subsection (2), but who holds a judicial or other statutory office; or

(b)who is a member of the Governor’s Establishment within the meaning of the Governor’s Establishment Act 1992,

is deemed to be a worker employed by or under the Crown.

(3)All moneys payable under this Act by or on behalf of the Crown shall be paid out of moneys to be provided by Parliament.

(4)In all claims against the Crown, whether arising out of disabilities to workers employed by or under the Crown, or in respect of any other claim under this Act by any other person, proceedings may be taken and prosecuted under this Act by suit against the Attorney General as representing the Crown in his representative capacity and without imposing any personal liability upon the occupant of the office of Attorney General.

[Section 14 amended by No. 44 of 1985 s. 7; No. 40 of 1992 s. 13.]

[15.Repealed by No. 36 of 2004 s. 5.]

16.Act to apply as to disability to persons employed on Western Australian ships

[(1), (1a)repealed]

(2)This Act applies with the following modifications in respect of a disability occurring to a worker employed on a ship where under section 20 the worker’s employment is connected with this State — 

(a)the notice of disability and the claim for compensation may, except where the person disabled is the master, be served on the master of the ship as if he were the employer, but where the disability occurred and incapacity commenced on board the ship it is not necessary to give notice of the disability;

(b)in the case of the death of the worker leaving no dependants, no compensation is payable if the owner of the ship is, under the Merchant Shipping Act 1894 of the United Kingdom, liable to pay the expenses of burial;

(c)where incapacity for work results from the disability, the owner of the ship may deduct from the payment due to the disabled worker under this Act any expenses of maintenance which the owner of the ship is, under the Merchant Shipping Act 1894 of the United Kingdom, liable to defray and has, in fact, defrayed;

(d)any sum payable by way of compensation by the owner of a ship under this Act shall be paid in full notwithstanding anything in section 503 6 of the Merchant Shipping Act 1894 of the United Kingdom (which relates to the limitation of a ship‑owner’s liability in certain cases of loss of life, injury, or damage), but the limitation on the owner’s liability imposed by that section shall apply to the amount recoverable by way of indemnity, under the provisions of this Act relating to remedies both against employer and stranger, as if the indemnity were damages for loss of life or disability; and

(e)section 174(2) and (3) of the Merchant Shipping Act 1894 of the United Kingdom (which relates to the recovery of wages of seamen lost with their ship), apply in respect of proceedings for the recovery of compensation by the dependants of a worker lost with his ship as they apply with respect to proceedings for the recovery of wages due to seamen and apprentices; and proceedings for the recovery of compensation are in such a case maintainable if the claim is made within 18 months of the date at which the ship is deemed to have been lost with all hands.

[Section 16 amended by No. 44 of 1985 s. 8; No. 36 of 2004 s. 6.]

17.Crew of fishing vessel

This Act does not apply in respect of disabilities occurring to such members of the crew of a fishing vessel as contribute to the cost of working that vessel, and are remunerated by shares in the profits or the gross earnings of the working of that vessel.

Part III — Compensation

Division 1 — Disability — general

18.Liability of employers to workers for disabilities

If a disability of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1 7.

19.Personal injury by accident arising out of or in course of employment

(1)Without limiting the generality of section 18, a worker shall be treated as having suffered personal injury by accident arising out of or in the course of the worker’s employment if the injury occurs — 

(a)during the worker’s attendance at a place for educational purposes if — 

(i)the attendance is required by the worker’s terms of employment or apprenticeship; or

(ii)the attendance is for the purpose of, or in connection with, the worker’s employment with the employer and the employer agrees to the attendance;

(b)during the attendance at a place for treatment or attendance of a kind referred to in clause 17 of Schedule 1; or

(c)during the attendance at a place for the purpose of receiving payment of compensation to which the worker is entitled under this Act.

(2)A worker shall not be treated as having suffered personal injury by accident arising out of or in the course of the worker’s employment if the worker suffers an injury — 

(a)during a journey — 

(i)between a place of residence of the worker and the worker’s place of employment;

(ii)between a place of residence of the worker and a place mentioned in subsection (1); or

(iii)if the worker has more than one place of residence, between those places;

or

(b)during a journey arising out of or in the course of the worker’s employment if the injury is incurred during, or after, any substantial interruption of, or substantial deviation from, the journey, made for any reason unconnected with the worker’s employment or attendance mentioned in subsection (1).

(3)In subsection (2) — 

place of residence includes a place of temporary residence;

substantial interruption prima facie includes any interruption of the journey for a period of more than one hour.

[Section 19 inserted by No. 48 of 1993 s. 30.]

20.Compensation not payable unless worker’s employment connected with this State

(1)In this section —

State, in a geographical sense, includes a State’s relevant adjacent area as described in Schedule 6.

(2)Compensation under this Act is only payable in respect of employment that is connected with this State.

(3)The fact that a worker is outside this State when the disability occurs does not prevent compensation being payable under this Act in respect of employment that is connected with this State.

(4)A worker’s employment is connected with —

(a)the State in which the worker usually works in that employment;

(b)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

(c)if no State or no one State is identified by paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located.

(5)In the case of a worker working on a ship, if no State or no one State is identified by subsection (4), 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 one State) the State in which the ship most recently became registered.

(6)If no State is identified by subsection (4) or (if applicable) (5), a worker’s employment is connected with this State if —

(a)a worker is in this State when the disability occurs; and

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

(7)In deciding whether a worker usually works in a State, regard must be had to —

(a)the worker’s work history with the employer over the preceding period of 12 months; and

(b)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.

(8)Subject to subsection (7), in deciding 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.

(9)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.

[Section 20 inserted by No. 36 of 2004 s. 7.]

21.Compensation from date of incapacity

An employer is liable to pay compensation under this Act from the date of incapacity resulting from the disability but clause 9 applies in any case.

22.Serious and wilful misconduct

If it is proved that the disability of a worker is attributable to his — 

(a)voluntary consumption of alcoholic liquor or of a drug of addiction, or both, which impairs the proper functioning of his faculties;

(b)failure, without reasonable excuse, proof of which is on him, to use protective equipment, clothing, or accessories provided by his employer for the worker’s use; or

(c)other serious and wilful misconduct,

any compensation claimed in respect of that disability shall be disallowed unless the disability results in death or serious and permanent disablement.

23.Person not to be compensated twice

(1)Compensation under this Act is not payable in respect of anything to the extent that —

(a)compensation has been received under the laws of a place other than this State; or

(b)judgment has been obtained against the employer independently of this Act.

(2)If a person receives compensation under this Act and, for the same matter, subsequently —

(a)receives compensation under the laws of a place other than this State; or

(b)obtains judgment against the employer independently of this Act,

the person from whom compensation under this Act is received may, in a court of competent jurisdiction, sue and recover from the person the amount described in subsection (3).

(3)The amount that is recoverable under subsection (2) is —

(a)the amount of compensation paid under this Act; or

(b)the amount of compensation received under the laws of a place other than this State or for which judgment was obtained independently of this Act,

whichever is less.

[Section 23 inserted by No. 36 of 2004 s. 8.]

Division 1a — Determination by courts and recognition of determination

[Heading inserted by No. 36 of 2004 s. 9.]

23A.Definition

In this Division —

court includes a tribunal constituted by a judicial officer.

[Section 23A inserted by No. 36 of 2004 s. 9.]

23B.Determination of State with which worker’s employment is connected in proceedings under this Act

(1)If the question of whether this State is connected with a worker’s employment arises in proceedings in a court in relation to a claim for compensation under this Act, that court must —

(a)determine the State with which the worker’s employment is connected in accordance with section 20; and

(b)cause that determination to be entered in the records of the court.

(2)Subsection (1) does not apply if there is a determination that is to be recognised under section 23D.

[Section 23B inserted by No. 36 of 2004 s. 9.]

23C.Determination by the District Court of State with which worker’s employment is connected

(1)If a claim for compensation has been made under this Act, a party to the claim may apply to the District Court for a determination of the question of which State is the State with which the worker’s employment is connected.

(2)The District Court must determine an application under subsection (1) in accordance with section 20 and cause that determination to be entered in the records of the court.

(3)An application under subsection (1) is not to be made or heard if there is a determination that is to be recognised under section 23D.

[Section 23C inserted by No. 36 of 2004 s. 9.]

23D.Recognition of previous determinations

(1)This section applies if a determination of the State with which a worker’s employment is connected has been made —

(a)by a court of this State under section 23B or 23C;

(b)by a court of another State under a provision of a law that corresponds with section 23B or 23C; or

(c)by a court of this State or another State in the course of proceedings on a claim for damages to which Part IV Division 1a applies or to which provisions of a law of another State corresponding to that Division apply.

(2)The State determined as mentioned in subsection (1) is to be recognised for the purposes of this Act as the State with which the worker’s employment is connected.

(3)This section does not prevent any appeal relating to the determination.

(4)If the determination is altered on appeal, the altered determination is to be recognised under subsection (2).

[Section 23D inserted by No. 36 of 2004 s. 9.]

23E.Determination may be made by consent

In this Division a reference to a determination made by a court in a proceeding includes a reference to a determination made by the court with the consent of the parties to the proceeding.

[Section 23E inserted by No. 36 of 2004 s. 9.]

Division 2 — Lump sum payments for specified injuries

24.Compensation for injuries mentioned in Schedule 2

Notwithstanding Schedule 1, in respect of compensable personal injuries by accident, if the worker himself so elects during his lifetime as provided by section 24B, the compensation payable for the injuries mentioned in column 1 of the table set out in Schedule 2 shall, subject to the provisions of this Act relating to Schedule 2, be the percentage ratios of the prescribed amount indicated in column 2 thereof, but the compensation payable for each such injury shall be in accordance with the percentage ratio of the prescribed amount indicated in that column in respect of such an injury at the date of the accident whereby that injury was caused to the worker, irrespective of when the worker so elects.

[Section 24 amended by No. 44 of 1985 s. 9; No. 36 of 1988 s. 5.]

24A.Lump sum compensation for noise induced hearing loss

(1)Subject to Schedule 7 and this section, a worker suffering from noise induced hearing loss shall be entitled to compensation for that loss under item 6 of the table set out in Schedule 2 if the worker so elects as provided by section 24B, but the compensation payable for that hearing loss shall, subject to the provisions of this Act relating to Schedule 2, be in accordance with the percentage ratio of the prescribed amount indicated in column 2 of the table set out in Schedule 2 in respect of item 6 at the date of the audiometric test under Schedule 7 that showed that a loss or diminution of the worker’s hearing had been incurred, irrespective of when the worker so elects.

(2)A worker is entitled to compensation under this section only in respect of noise induced hearing loss incurred after the date on which this section comes into operation and — 

(a)in respect of the worker’s first election under this section, where that noise induced hearing loss is at least a 10% loss of hearing; and

(b)in respect of a subsequent election by the worker under this section after a successful first election under paragraph (a) — 

(i)where that noise induced hearing loss is at least a further 5% loss of hearing; or

(ii)where the worker has reached the age of 65 years or on the worker’s retirement from work before that age, where that noise induced hearing loss is any further percentage of loss of hearing.

(3)Nothing in subsection (2) operates to stop a worker who — 

(a)has retired from work before attaining the age of 65 years;

(b)has made a successful election under subsection (2)(b)(ii); and

(c)subsequently returns to work,

from making an election under subsection (2)(b) in respect of further loss of hearing.

(4)A worker is not entitled to compensation under this section in respect of noise induced hearing loss incurred after the worker has attained the age of 65 years.

(5)In subsection (2), loss of hearing means percentage loss of hearing calculated in accordance with the National Acoustic Laboratory Tables prescribed.

(6)Schedule 7 applies and noise induced hearing loss shall be ascertained and measured for the purposes of this section in accordance with that Schedule.

[Section 24A inserted by No. 36 of 1988 s. 6.]

24B.Election under section 24 or 24A

(1)A worker elects for the purposes of section 24 or 24A(1) where — 

(a)the worker signs a prescribed form of election containing prescribed particulars in respect of the relevant injury or hearing loss; and

(b)that form of election is filed with the Directorate, and a copy of it is served by or on behalf of the worker on the employer who, in the case of an election for the purposes of section 24A, shall be the employer who last employed the worker in employment to the nature of which noise induced hearing loss is due.

(2)A form of election referred to in subsection (1) is not binding upon a worker unless the Director is satisfied that it contains a statement in clear terms of the effect the election will have on the worker’s future entitlements to compensation under this Act.

(3)If not satisfied in accordance with subsection (2), the Director shall within 7 days notify the employer and the worker accordingly.

(4)Subject to this Act, a worker who elects as provided by subsection (1) is entitled to continue to receive any weekly payments of compensation to which he or she is entitled until —

(a)an agreement with respect to the election is registered under section 76; or

(b)an order of a dispute resolution body is made with respect to the amount of compensation payable pursuant to the election,

whichever is sooner.

(5)Where a worker makes an election under subsection (1) for the purposes of section 24A, this Division and Part IIIA shall apply as if the noise induced hearing loss in respect of which the election was made was a compensable personal injury by accident arising out of or in the course of the worker’s employment and for that purpose a reference in this Division or Part IIIA to the time or date of the personal injury by accident shall, in respect of compensable noise induced hearing loss, be construed as a reference to the date of the audiometric test under Schedule 7 that showed that a loss or diminution of the worker’s hearing had been incurred.

[Section 24B inserted by No. 36 of 1988 s. 6; amended by No. 48 of 1993 s. 28(1); No. 34 of 1999 s. 8.]

25.“Loss of

For the purpose of the table set out in Schedule 2, loss of includes — 

(a)“permanent loss of the use of ”; and

(b)“permanent loss of the efficient use of ”, but in such case such percentage of the appropriate amount payable as is equal to the percentage of the diminution of the full efficient use, may be awarded, in lieu of the full amount.

26.Subsequent injuries

(1)When, by a compensable personal injury by accident, a worker has already suffered a permanent loss of any percentage of the full efficient use of — 

any part or faculty of the body referred to in column 1 of the table set out in Schedule 2 — 

and by subsequent compensable personal injury by accident suffers further loss of the full efficient use of — 

that part or faculty of the body — 

the compensation payable under the provisions of that table in respect of each such subsequent injury shall be proportionate to any increase (resulting from that subsequent injury) in the percentage of loss of that full and efficient use, and the compensation payable shall be calculated at the rates applicable at the time of occurrence of each subsequent injury.

(2)Where a worker has received compensation payable under the provisions of that table for 100% of the loss of, or the permanent loss of the efficient use of, any part or faculty of the body referred to in column 1 of that table — 

whether in one payment for permanent total loss of, or permanent total loss of the efficient use of — 

that part or faculty of the body — 

or in several payments, each of which has been made for a permanent partial loss of, or a permanent partial loss of the efficient use of — 

that part or faculty of the body, then and in such case, the worker is not entitled to any further payment under the provisions of that table in respect of that part or faculty.

27.Compensation in accordance with table at date of accident

Notwithstanding the other provisions of this Act and in particular section 118, where any decision, ruling, order, award, judgment, settlement, or agreement was given, made, or registered before 18 May 1978, on the basis that compensation payable for an injury under the table set out in Schedule 2 was in accordance with the amount indicated in column 2 of that table in respect of that injury at the date of the accident whereby that injury was caused to the worker, that decision, ruling, order, award, judgment, settlement, or agreement shall not be rescinded, altered, or amended, and the worker shall not be entitled to any further payment under the provisions of that table in respect of that injury, by reason that it was given, made, or registered on that basis.

[Section 27 amended by No 48 of 1993 s. 28(1); No. 34 of 1999 s. 9.]

28.Limit on compensation of worker electing

A worker who elects under section 24B is not in any case (including the case of a worker suffering by the same accident more than one of the injuries mentioned in Schedule 2) entitled to more than the prescribed amount, in addition to payment of such expenses as are provided for in clauses 9, 17, 18, 18A and 19 which clauses are hereby made applicable to each worker entitled to compensation under this Division until that worker so elects and an agreement is registered or an order of a dispute resolution body is made with respect to the amount of compensation payable pursuant to the election.

[Section 28 amended by No. 44 of 1985 s. 13; No. 36 of 1988 s. 7; No. 48 of 1993 s. 28(1); No. 42 of 2004 s. 19.]

29.Compensation while incapacity continues

Sections 24 and 24A do not limit the amount of compensation that is payable to a worker for any period of incapacity resulting from the injuries referred to in those sections unless the worker elects under section 24B and an agreement is registered or an order of a dispute resolution body is made with respect to the amount of compensation payable pursuant to the election.

[Section 29 amended by No. 44 of 1985 s. 14; No. 36 of 1988 s. 8; No. 48 of 1993 s. 28(1).]

30.Compensation payable before election

Subject to section 28, when a worker elects under section 24B, any amount of compensation that was paid or payable to him for any period of incapacity resulting from the injuries referred to in section 24 or 24A and occurring before he so elects and an agreement is registered or an order of a dispute resolution body is made with respect to the amount of compensation payable pursuant to the election shall not be deducted from the amount payable in accordance with the table set out in Schedule 2.

[Section 30 amended by No. 44 of 1985 s. 15; No. 36 of 1988 s. 9; No. 48 of 1993 s. 28(1).]

31.Schedule 2 interpretation

In the application of the table set out in Schedule 2 the following apply — 

(a)loss of arm includes such loss resulting from injury to the shoulder;

(b)loss of leg includes such loss resulting from injury to the hip;

(c)if an eye or foot or other member is deemed lost or permanently and wholly useless or a finger has lost 2 joints, that constitutes the total loss of the eye, foot, member, or finger;

(d)except in the case of eyes, determination of a percentage of loss is not to be made while using artificial aids;

(e)determination of loss of sight is to be made on a corrective basis and item 5 of Schedule 2 shall not apply where loss of binocular vision is caused solely by the total loss of sight or substantial loss of sight of one eye.

Division 3 — Disability — specified industrial diseases

32.Compensation of worker dying from or affected by certain industrial diseases (Schedule 3)

Where a worker is rendered less able to earn full wages by reason of suffering from, or his death is caused by, any disease, except pneumoconiosis, mesothelioma, or lung cancer, mentioned in column 1 of Schedule 3 and the disease is or was due to the nature of any employment in which the worker was employed at any time within one year previous to the date of being so rendered, whether under one or more employers, a disability, being that disease, of the worker occurs and this Act applies to that disability subject, however, to this Division.

[Section 32 amended by No. 42 of 2004 s. 23.]

33.Pneumoconiosis, mesothelioma or lung cancer

Where a worker is rendered less able to earn full wages by reason of suffering from, or his death is caused by —

(a)pneumoconiosis;

(b)on and after 8 May 1970, mesothelioma; or

(c)on and after the date on which this section comes into operation, lung cancer,

and the disease is, or was, due to the nature of any employment in which the worker was employed at any time previous to the date of being so rendered and it is shown to the satisfaction of a dispute resolution body that, since he was last employed in the State in any employment of that nature, the worker — 

(a)has not been absent from the State for a period of, or periods aggregating, more than 6 months; or

(b)having been absent from the State for a period of, or periods aggregating, more than 6 months, has not during that period or those periods been employed in any employment of that nature,

a disability, being pneumoconiosis, mesothelioma, or lung cancer, as the case may be, of the worker occurs and this Act applies to that disability subject, however, to this Division.

[Section 33 amended by No. 48 of 1993 s. 28(1); No. 42 of 2004 s. 24.]

34.Worker suffering from chronic bronchitis and pneumoconiosis

Whenever a worker is rendered less able to earn full wages, by reason of suffering from chronic bronchitis in association with pneumoconiosis, he is deemed to be so rendered by pneumoconiosis and this Act applies subject, however, to this Division; but a worker who, after receiving compensation pursuant to this section, is subsequently employed in any process entailing exposure to mineral dusts harmful to the lungs whether by the same or any other employer, is not entitled to any further compensation or benefit, in respect of any period of incapacity due to pneumoconiosis of any kind or to the aggravation or acceleration of any such disease, arising from his subsequent employment in that process.

[Section 34 amended by No. 42 of 2004 s. 25.]

35.Worker suffering from lung cancer and pneumoconiosis

Whenever after the proclaimed date a worker is rendered less able to earn full wages by reason of suffering from lung cancer in association with that form of pneumoconiosis known as asbestosis, he is deemed to be so rendered by pneumoconiosis and this Act applies subject, however, to this Division: but a worker who, after receiving compensation pursuant to this section, is subsequently employed in any process entailing substantial exposure to asbestos dust whether by the same or any other employer, is not entitled to any further compensation or benefit, in respect of any period of incapacity due to asbestosis or to the aggravation or acceleration of such disease, arising from his subsequent employment in that process.

[Section 35 amended by No. 42 of 2004 s. 26.]

36.Reference to medical panel

(1)Whenever a claim is made by, or in relation to, a worker for compensation under section 33 or 34, the employer shall within 14 days of the making of the claim send particulars of the claim to WorkCover WA, and the chief executive officer shall refer the question of the worker’s condition and fitness for employment to a medical panel comprising 2 or 3 physicians —

(a)all of whom are to be nominated by the chief executive officer from amongst physicians who specialise in diseases of the chest or in occupational diseases; and

(b)at least one of whom specialises in diseases of the chest.

(2)An employer who fails to comply with subsection (1) commits an offence.

(3)The Chairman of a medical panel shall be appointed by the Minister on the nomination of the chief executive officer.

[Section 36 amended by No. 28 of 1984 s. 101; No. 44 of 1985 s. 17; No. 33 of 1986 s. 4; No. 86 of 1986 s. 5; No. 96 of 1990 s. 7; No. 30 of 1993 s. 13; No. 48 of 1993 s. 32; No. 34 of 1999 s. 10; No. 42 of 2004 s. 150 and 152.]

37.Oral submission by medical practitioner

On a reference under section 36, any medical practitioner who has examined or treated the worker on his own behalf or has examined him on behalf of the employer may attend and make oral submissions to the medical panel, and the chief executive officer shall make arrangements with the medical panel to give such a medical practitioner the opportunity to attend, and, where such a medical practitioner does so attend the medical panel shall so certify to the chief executive officer, and the practitioner shall be paid from moneys standing to the credit of the General Fund such witness fee as he would have been entitled to receive if he had attended to give evidence in a hearing in a compensation magistrate’s court.

[Section 37 amended by No. 86 of 1986 s. 5; No. 30 of 1993 s. 13; No. 48 of 1993 s. 28(1); No. 49 of 1996 s. 64; No. 42 of 2004 s. 152.]

38.Questions for determination by a medical panel

(1)On a reference under section 36, the medical panel, following such examination and tests as it may require, having given the opportunity for oral submissions to be made, and having considered such oral submissions as have been made pursuant to section 37, and perused such certificates of other medical practitioners as either party may in person or by his solicitor or agent tender to that medical panel, shall thereupon consider and determine the following questions — 

(a)is, or was, the worker suffering from pneumoconiosis, mesothelioma or lung cancer?

(b)if so, is, or was, the worker thereby less able to earn full wages?

(c)to what extent if any does, or did — 

(i)pneumoconiosis;

(ii)mesothelioma;

(iii)lung cancer,

adversely affect the worker’s ability to undertake physical effort?

(d)what other, if any, disease or physical condition is, or was, contributing to the worker’s being less able to earn full wages, or death and to what extent?

(e)is, or was, the worker fit for work? If so, at what level — light, moderate, or heavy?

(2)The determination of the medical panel shall, as far as is practicable in each case, be in the form and contain answers to the questions prescribed.

(3)Where the medical panel comprises 2 members who fail to agree on its determination, the chief executive officer shall add a third member to the panel in accordance with section 36.

(4)The determination of the medical panel or a majority of its members is final and conclusive and binding on the worker, on his employer, and on any tribunal in which such determination is relevant.

[Section 38 amended by No. 44 of 1985 s. 18; No. 86 of 1986 s. 5; No. 48 of 1993 s. 33; No. 42 of 2004 s. 28 and 152.]

39.Worker disabled by tuberculosis and pneumoconiosis

Subject to this Division, where a worker is rendered less able to earn full wages, by reason of suffering from tuberculosis in association with pneumoconiosis, and any of those diseases is, or was, due to the nature of any employment in which the worker was employed at any time prior to the date of being so rendered, that person is deemed to be totally incapacitated for work, during such period as the tuberculosis is active, and, thereafter, for a further period of 3 months or for the period that he is unemployed, whichever period is the shorter, and, during that period and further period, the person is — 

(a)if in receipt of payments under the Tuberculosis Allowance (Commonwealth) Scheme, established under the Tuberculosis Act 1948 of the Commonwealth, entitled to compensation in weekly payments equal to the maximum weekly income permissible under that Scheme; and

(b)if not in receipt of payments mentioned in paragraph (a), entitled to such compensation as that to which he would be entitled, if totally incapacitated by pneumoconiosis.

[Section 39 amended by No. 42 of 2004 s. 29.]

40.Interpretation of this Division in cases of death without prior incapacity

A reference in this Division to the date on which, or time at which, a worker was rendered less able to earn full wages is, in the case of a death of a worker who was not rendered less able to earn full wages before the worker died, a reference to the date of the worker’s death.

[Section 40 inserted by No. 42 of 2004 s. 30.]

41.Last employer liable but may join others

(1)Subject to subsections (2), (3) and (4), the compensation is recoverable from the employer who last employed the worker during the period of one year mentioned in section 32, or, in the case of pneumoconiosis, mesothelioma, or lung cancer, who last employed the worker, in the employment to the nature of which the disease is, or was, due.

(2)The worker or his dependants shall, if so required, furnish that employer with such information as to the names and addresses of all the other employers who employed him in the employment during that period of one year, or in the case of pneumoconiosis, mesothelioma, or lung cancer, at any time previous to the date on which the worker was rendered less able to earn full wages, as he or they may possess.

(3)If that employer alleges that the disease was in fact contracted whilst the worker was in the employment of some other employer and not whilst in his employ, he may join such other employer as a party to the proceedings, and if the allegation is proved, that other employer shall be the employer from whom the compensation shall be recoverable.

(4)If the disease is of such a nature as to be contracted by a gradual process, any other employers who during that period of one year, or in the case of pneumoconiosis, mesothelioma, or lung cancer, at any time previous to the date on which the worker was rendered less able to earn full wages, employed the worker in the employment to the nature of which the disease was due shall be liable to make to the employer from whom compensation is recoverable such contributions as, in default of agreement, may be determined in proceedings under this Act for settling the amount of the compensation.

(5)Where an employer has been insured by more than one insurer, then those insurers shall be entitled to be heard upon any application to have liability apportioned between them in terms of subsection (4).

[Section 41 amended by No. 42 of 2004 s. 31.]

42.Relevant earnings

The amount of the compensation shall be calculated with reference to the earnings of the worker under the employer from whom the compensation is recoverable.

43.Employer to whom notice to be given

The employer to whom notice of the occurrence of the injury is to be given is the employer from whom compensation is recoverable under section 41(1) and that notice may be given notwithstanding that the worker has voluntarily left the employment of that employer.

[Section 43 amended by No. 42 of 2004 s. 32.]

44.Disease deemed due to nature of employment

If the worker at or immediately before the date on which the worker was rendered less able to earn full wages was employed in any process mentioned in column 2 of Schedule 3 and produces a certificate from a medical practitioner that the disease contracted is the disease or one of the diseases in column 1 set opposite the description of the process, such disease shall be deemed to have been due to the nature of the employment, unless the employer proves the contrary.

[Section 44 amended by No. 42 of 2004 s. 33.]

45.Additions to Schedule 3

(1)The Governor may, by Order in Council published in the Gazette, declare that any other disease or process or disease and process shall be included in Schedule 3.

(2)Every such Order in Council shall on the expiration of 3 months from the date of such publication, and while in force, have the same effect as if the disease or process or disease and process named therein were inserted in that Schedule, and this Division shall be read and construed accordingly.

(3)Before any such Order in Council is published in the Gazette it shall be laid before both Houses of Parliament; and, if either House of Parliament passes a resolution disallowing any such Order in Council, of which resolution notice has been given at any time within 14 sitting days of such House after the Order in Council has been laid before it, such Order in Council shall thereupon cease to have effect.

46.Compensation limited to prescribed amount

(1)Notwithstanding any provisions of the Mine Workers’ Relief Act 1932 or any other provisions of this Act, the compensation payable to a worker in respect of any period or periods of total or partial incapacity due, or deemed due, solely to pneumoconiosis, arising, or deemed to arise, out of or in the course of employment in a process, described in column 2 of Schedule 3 as any process entailing exposure to mineral dusts harmful to the lungs, or to that disease in combination with any other disease, shall not in any case exceed the prescribed amount; and the provisions of this section shall apply whether the period or periods of incapacity occur or result while the worker is employed by the same employer or by different, successive employers.

(2)A worker who has received the full amount of compensation — 

that was the maximum amount of his employer’s liability to him under this Act, as it existed at the time of the payment,

in respect of pneumoconiosis or that disease in combination with any other disease, and who is subsequently employed in any process entailing exposure to mineral dusts harmful to the lungs, shall not in any circumstances be entitled to further compensation or benefit for any period of incapacity due to pneumoconiosis, or to that disease in combination with any other disease.

(3)A supplementary amount paid under Schedule 5 clause 4 or 8 is not compensation for the purpose of this section.

[Section 46 amended by No. 104 of 1984 s. 3.]

47.Certain workers not to benefit

Where at the time at which a worker was rendered less able to earn full wages as mentioned in this Division — 

(a)he is or was employed or was last employed in, on, or about a mine within the meaning of the Mines Safety and Inspection Act 1994;

(b)the disease by which he is or was so rendered is one of the diseases by reason whereof he would be liable, if found to be suffering from that disease, to be prohibited under or by virtue of the regulations made under the Mines Safety and Inspection Act 1994, from being employed, or from continuing to be employed, in, on, or about a mine within the meaning of that Act; and

(c)he was employed or was last employed, in, on, or about a mine under the authority of a provisional certificate issued to him by a medical practitioner under the regulations made under the Mines Safety and Inspection Act 1994,

and at or after that time — 

(d)the worker is found upon examination by a physician who specialises in diseases of the chest to have been suffering from the disease by which he is or was so rendered at the time when the provisional certificate was issued to him, and such physician so certifies in writing,

then, notwithstanding that the disease by which the worker is or was so rendered is one of the diseases mentioned in column 1 of Schedule 3 liable to be contracted by the worker in the course of his employment in, on, or about a mine, and notwithstanding anything to the contrary contained elsewhere in this Act, neither the worker nor any dependant of the worker shall be entitled to claim or recover any workers’ compensation from any employer under or by virtue of this Act in respect of being so rendered.

[Section 47 amended by No. 30 of 1993 s. 13; No. 62 of 1994 s. 109; No. 42 of 2004 s. 34.]

48.Notification of disease

(1)Whenever it comes to the knowledge of an employer that any worker employed by him is suffering from a disease mentioned in Schedule 3, the employer shall within 7 days send written notice to that effect to WorkCover WA, and the notice shall state the name and address of the worker and the time at which the worker was rendered less able to earn full wages.

Penalty: $100.

(2)Whenever a notice under subsection (1) relates to a disease mentioned in Schedule 3 and marked with an asterisk, the chief executive officer shall forward a copy of the notice to the chief executive officer of the department of the Public Service of the State principally assisting the Minister charged with the administration of the Occupational Safety and Health Act 1984.

(3)It is the duty of every medical practitioner who attends a patient suffering from a disease mentioned in Schedule 3, and which he has reason to believe was contracted by reason of the nature of his employment, to notify in writing the chief executive officer of the department of the Public Service of the State principally assisting the Minister charged with the administration of the Occupational Safety and Health Act 1984 of the case within 14 days after such attendance on a patient.

Penalty: $100.

[Section 48 amended by No. 28 of 1984 s. 102; No. 86 of 1986 s. 5; No. 21 of 1987 s. 4; No. 30 of 1995 s. 48; No. 42 of 2004 s. 35 and 152.]

Division 4 — Disability — specified losses of functions

49.Disablement due to loss of function (Schedule 4)

Where a worker is disabled from earning full wages by reason of suffering from a loss of function described in column 1 of Schedule 4 and the disability is due to the nature of any employment in which the worker was employed at any time within 3 years previous to the date on which the worker becomes disabled from earning full wages, a disability, being that loss of function, of the worker occurs and this Act applies to that disability subject, however, to this Division.

[50.Repealed by No. 36 of 1988 s. 10.]

51.Compensation recoverable from last employer

(1)Subject to subsections (2), (3) and (4), the compensation is recoverable from the employer who last employed the worker during the period of 3 years mentioned in section 49 in the employment to the nature of which the loss of function is, or was, due.

(2)The worker shall, if so required, where possible furnish that employer with the names and addresses of all the other employers who employed him in the employment during the period of 3 years mentioned in section 49.

(3)If that employer alleges that the loss of function was in fact caused whilst the worker was in the employment of some other employer and not whilst in his employ, he may join such other employer as a party to the proceedings, and if the allegation is proved, that other employer shall be the employer from whom the compensation shall be recoverable.

(4)If the loss of function is of such a nature as to be caused by a gradual process, any other employers who during the period of 3 years mentioned in section 49, employed the worker in the employment to the nature of which the loss of function was due shall be liable to make to the employer from whom compensation is recoverable such contributions as, in default of agreement, may be determined in proceedings under this Act for settling the amount of the compensation.

(5)Where an employer has been insured by more than one insurer, those insurers shall be entitled to be heard on any application to have the liability apportioned between them in terms of subsection (4).

52.How compensation calculated

The amount of weekly payment of compensation shall be calculated and varied with reference to the earnings of the worker under the employer from whom the compensation is recoverable.

53.Employer to whom notice given

The employer to whom notice of the occurrence of the injury is to be given is the employer from whom compensation is recoverable under section 51(1) and that notice may be given notwithstanding that the worker has voluntarily left the employment of that employer.

[Section 53 amended by No. 42 of 2004 s. 38.]

54.Loss of function deemed due to nature of employment

If the worker at or immediately before the date on which the worker is rendered less able to earn full wages was employed in any process mentioned in column 2 of Schedule 4 and produces a certificate from a medical practitioner that the loss of function contracted is the loss or one of the losses in column 1 set opposite the description of the process, such loss of function shall be deemed to have been due to the nature of the employment, unless the employer proves the contrary.

[Section 54 amended by No. 42 of 2004 s. 39.]

55.Additions to Schedule 4

(1)The Governor may, by Order in Council published in the Gazette, declare that any other loss of function or process or loss of function and process shall be included in Schedule 4.

(2)Every such Order in Council shall on the expiration of 3 months from the date of such publication, and while in force, have the same effect as if the loss of function or process or loss of function and process named therein were inserted in that Schedule, and this Division shall be read and construed accordingly.

(3)Before any such Order in Council is published in the Gazette it shall be laid before both Houses of Parliament; and, if either House of Parliament passes a resolution disallowing any such Order in Council, of which resolution notice has been given at any time within 14 sitting days of such House after the Order in Council has been laid before it, such Order in Council shall thereupon cease to have effect.

Division 5 — Commencement, review, suspension, and cessation of payments

56.Entitlement to weekly payments ceasing on account of age

Subject to the exceptions in Schedule 5, an entitlement of a worker to weekly payments of compensation for incapacity for work resulting from a disability under this Act ceases — 

(a)if the disability occurs on or before the date on which the worker attains the age of 64 — on attaining the age of 65; or

(b)if the disability occurs after the date on which the worker attains the age of 64 — on the date one year after the disability occurs.

57.Saving as to expenses

Nothing in section 56 affects the liability of an employer for, and the entitlement of a worker to, compensation payable under Schedule 2, and expenses as are provided for in clauses 9, 17, 18, 18A and 19 but subject to the limitation on those expenses as provided for in clause 17(1).

[Section 57 amended by No. 42 of 2004 s. 40(a).]

57A.Claims procedure — insured employer

(1)This section applies where — 

(a)a claim for compensation by way of weekly payments for total or partial incapacity has been made on an employer in accordance with section 84I(1)(b); and

(b)the worker suffering the disability has served on the employer a certificate signed by a medical practitioner — 

(i)in or to the effect of the form prescribed containing substantially the information sought in the form; or

(ii)to the effect that the worker is unfit for work because of a recurrence of a disability in respect of which a certificate as referred to in subparagraph (i) has previously been served,

and the employer is indemnified by a policy of insurance against his liability to pay the compensation claimed.

(2)Where, in the circumstances mentioned in subsection (1), an employer fails to make a claim under and in accordance with his policy of insurance before the expiration of 3 full working days of his insurer after the day on which the circumstances mentioned in subsection (1) arose or, where the making of a claim within that time would not be reasonably practicable, as soon as reasonably practicable thereafter, the insurer may, in the Magistrates Court, sue and recover from the employer, as a debt due, any amount that, under the policy of insurance, he is liable to pay by way of indemnity in respect of the first 3 working days for which weekly payments are claimed by the worker.

(3)Upon an employer making a claim as mentioned in subsection (2), the insurer shall, before the expiration of 14 days after the claim was made by the employer — 

(a)notify the worker to whom the claim relates and the employer that liability is accepted in respect of the weekly payments claimed;

(b)subject to section 75, notify the employer and the worker that liability is disputed in respect of all or any of the weekly payments claimed and of the reasons why it is disputed, subject to the insurer not being prejudiced in any subsequent proceedings relating to the claim by the reasons stated in the notice; or

(c)notify the Director, the employer and the worker that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this subsection and of the reasons why the decision is not able to be so made,

and that notification shall be in or to the effect of the form prescribed containing substantially the information required.

(3a)If within 10 days after the Director is notified under subsection 3(c) that a decision is not able to be made, the insurer has not — 

(a)notified the worker to whom the claim relates, the employer and the Director that liability is accepted in respect of the weekly payments claimed; or

(b)subject to section 75, notified the employer, the worker and the Director that liability is disputed in respect of all or any of the weekly payments claimed and of the reasons why it is disputed,

the claim by the worker shall be deemed to be disputed.

(4)Where the Director has requested an insurer to do so, the insurer shall cause each notification to the Director under subsection (3)(c) to be accompanied by a means specified by the Director for conveying to the Director, in a machine‑readable form so specified, the information contained in the notification.

(5)Where an insurer fails to comply with subsection (3) in respect of a claim for weekly payments under this Act, the worker who made the claim is, by force of this subsection, entitled to the weekly payments claimed and the insurer is liable to indemnify the employer in respect of those weekly payments, but either the employer or the insurer may apply to the Directorate for a determination under subsection (6).

(6)On an application under subsection (5) the Directorate may determine the entitlement that the worker would have but for the operation of subsection (5), and thereupon the entitlement of the worker is as so determined by the Directorate but without affecting his entitlement under subsection (5) in respect of the period before that determination.

(7)An employer shall make the first of the weekly payments as soon as practicable after — 

(a)he is notified that the insurer accepts the claim or the time prescribed by subsection (3) expires without the employer having received any notification as required by that subsection from the insurer; and

(b)the worker has complied with the requirements of section 84I or, on an application made under section 58, the Directorate has ordered the commencement of weekly payments under this subsection notwithstanding that those requirements have not been complied with,

and subsequent weekly payments shall be made on the employer’s usual pay days.

(8)An employer who having received a payment from an insurer in respect of the employer’s liability to make a weekly payment to a worker fails to make that weekly payment to the worker in accordance with subsection (7) commits an offence.

Penalty: $2 000.

[Section 57A inserted by No. 96 of 1990 s. 8; amended by No. 72 of 1992 s. 6; No. 48 of 1993 s. 28(1) and 34; No. 34 of 1999 s. 11; No. 59 of 2004 s. 133.]

57B.Claims procedure — self‑insurer or uninsured employer

(1)This section applies where — 

(a)a claim for compensation by way of weekly payments for total or partial incapacity has been made on an employer in accordance with section 84I(1)(b); and

(b)the worker suffering the disability has served on the employer a certificate signed by a medical practitioner — 

(i)in or to the effect of the form prescribed containing substantially the information sought in the form; or

(ii)to the effect that the worker is unfit for work because of a recurrence of a disability in respect of which a certificate as referred to in subparagraph (i) has previously been served,

and the employer (whether in contravention of section 160, in accordance with an exemption under section 164, as a result of the insurer declining to indemnify the employer, or otherwise) is not indemnified by a policy of insurance against his liability to pay the compensation claimed.

(2)In the circumstances mentioned in subsection (1), an employer shall, before the expiration of 17 days after those circumstances arose — 

(a)if liability to make the weekly payments claimed is accepted, subject to subsection (6), make the first of those weekly payments;

(b)if liability to make the weekly payments claimed is disputed, subject to section 75, notify the worker to that effect and of the reasons why it is disputed, subject to the employer, or the insurer if the insurer subsequently agrees to indemnify the employer, not being prejudiced in any subsequent proceedings relating to the claim by the reasons stated in the notice; or

(c)if unable to make a decision within the time allowed by this subsection as to whether or not liability to make the weekly payments claimed is to be accepted, notify the Director and the worker to that effect and of the reasons why the decision is not able to be so made,

and any such notification shall be in or to the effect of the form prescribed containing substantially the information required.

(2a)If within 10 days after the Director is notified under subsection (2)(c) that a decision is not able to be made, the employer has not — 

(a)if liability to make the weekly payments claimed is accepted, notified the Director accordingly and, subject to subsection (6), made the first of those weekly payments; or

(b)subject to section 75, notified the worker and the Director that liability is disputed in respect of all or any of the weekly payments claimed and of the reasons why it is disputed,

the claim by the worker shall be deemed to be disputed.

(2b)When an insurer declines to indemnify an employer against the employer’s liability to pay the compensation claimed, the insurer shall, before the expiration of 14 days after the claim was made by the employer, notify WorkCover WA to that effect and of the reasons for declining to indemnify.

(3)Where the Director has requested an employer to do so, the employer shall cause each notification to the Director under subsection (2)(c) to be accompanied by a means specified by the Director for conveying to the Director, in a machine‑readable form so specified, the information contained in the notification.

(4)Where an employer fails to comply with subsection (2) upon a worker claiming compensation by way of weekly payments under this Act, the worker is, by force of this subsection, entitled to the weekly payments claimed and the employer shall, subject to subsection (6), forthwith make the first of those weekly payments, but the employer may apply to the Directorate for a determination under subsection (5).

(5)On an application under subsection (4) the Directorate may determine the entitlement that the worker would have had but for the operation of subsection (4), and thereupon the entitlement of the worker is as so determined by the Directorate but without affecting his entitlement under subsection (4) in respect of the period before that determination.

(6)An employer is not required under subsection (2) or (4) to make any weekly payment unless — 

(a)the worker has complied with the requirements of section 84I; or

(b)on an application made under section 58, the Directorate has ordered the commencement of weekly payments under this section notwithstanding that those requirements have not been complied with.

(7)After the first of the weekly payments, subsequent weekly payments to which a worker is entitled shall be made on an employer’s usual pay days.

[Section 57B inserted by No. 96 of 1990 s. 8; amended by No. 72 of 1992 s. 7; No. 48 of 1993 s. 28(1) and 35; No. 34 of 1999 s. 12; No. 42 of 2004 s. 150.]

57C.Notification to Commission

(1)This section applies in respect of a claim made by a worker for compensation by way of weekly payments that was made after the day fixed by the Minister for the purpose of this section by notice published in the Gazette.

(2)Where an employer makes a claim to his insurer as referred to in section 57A(2) and weekly payments to which the worker is entitled are commenced the insurer shall, as soon as practicable but in any event before the expiration of 21 days after the day on which the weekly payments were commenced, send to WorkCover WA notification in accordance with subsection (5) of the matter to which the claim relates.

(3)Where section 57B applies and weekly payments to which the worker is entitled are commenced the employer shall, as soon as practicable but in any event before the expiration of 21 days after the day on which the weekly payments were commenced, send to WorkCover WA notification in accordance with subsection (5) of the matter to which the claim relates.

(4)An insurer or employer who has given notification under subsection (2) or (3) in respect of a claim shall send to WorkCover WA notification in accordance with subsection (5) of the discontinuance of weekly payments as soon as practicable after the weekly payments are discontinued, except that where it appears likely that there will be any further payment of compensation under this Act to the worker arising from the disability to which the claim relates, the notification required under this subsection shall be sent as soon as practicable after it appears that all such payments have been made.

(5)Notification required to be made in accordance with this subsection shall be in the form prescribed containing substantially the information required and, in the case of a notification under subsection (2) or (3), include an estimate of whether or not the incapacity of the worker is expected to be for a period exceeding 4 weeks and shall, where WorkCover WA has so requested, be accompanied by a means specified by WorkCover WA for conveying to WorkCover WA, in a machine‑readable form so specified, the details of the information and the estimate.

Penalty: $1 000.

[Section 57C inserted by No. 96 of 1990 s. 8; amended by No. 42 of 2004 s. 150.]

57D.Confidentiality

(1)Subject to subsection (2), a person, except with the express authority of WorkCover WA, shall not have access to, inspect, or peruse any information given under section 57C to WorkCover WA, and that information shall be treated as strictly confidential and shall not, except for the purposes of this Act, be disclosed to any person.

Penalty: $1 000.

(2)An employer may request that information provided under section 57C, whether by him or an insurer, in respect of compensation claimed by a worker from that employer be disclosed to another insurer or prospective insurer, and subsection (1) does not apply to the disclosure of information in accordance with that request.

[Section 57D inserted by No. 96 of 1990 s. 8; amended by No. 42 of 2004 s. 150.]

58.Directorate may determine liability

(1)Where, in the circumstances mentioned in section 57A(1) — 

(a)a period of 17 days has elapsed since those circumstances arose and the worker has not received the first of the weekly payments claimed; or

(b)whether or not the period mentioned in paragraph (a) has elapsed, notification has been given by the insurer — 

(i)under section 57A(3)(b) or 57A(3a)(b), that liability is disputed; or

(ii)under section 57A(3)(c), that a decision as to liability is not able to be made within the time allowed,

the Directorate may, on the application of the worker hear and determine the question of liability to make the weekly payments claimed.

(2)Where in the circumstances mentioned in section 57B(1) — 

(a)a period of 17 days has elapsed since those circumstances arose and the worker has not received the first of the weekly payments claimed; or

(b)whether or not the period mentioned in paragraph (a) has elapsed, notification has been given by the employer — 

(i)under section 57B(2)(b) or 57B(2a)(b), that liability is disputed; or

(ii)under section 57B(2)(c), that a decision as to liability is not able to be made within the time allowed,

the Directorate may, on the application of the worker hear and determine the question of liability to make the weekly payments claimed.

(2a)Where under section 57A(3a) or 57B(2a) a claim by a worker is deemed to be disputed, the Directorate may order the employer to make an application for the Directorate to hear and determine the question of liability to make the weekly payments claimed.

(3)An employer may, in the circumstances mentioned in section 57A(1) or section 57B(1), make application for the Directorate to hear and determine the question of liability to make the weekly payments claimed, and the Directorate may hear and determine the matter.

[(4)repealed]

(5)On a hearing under subsection (1), (2), (2a) or (3) the Directorate shall satisfy itself as to all the evidence before it whereupon the Directorate — 

(a)if it considers that the evidence is satisfactory to establish liability to make weekly payments, may — 

(i)make an order that weekly payments including arrears to the date of the hearing shall be paid out of moneys standing to the credit of the General Fund and that the employer shall forthwith pay to WorkCover WA for the General Fund the amount of such payments together with an additional 10% of that amount; or

(ii)make an order as to weekly payments by the employer to the worker on such terms as it sees fit;

or

(b)if it considers that the evidence is not satisfactory to establish liability to make weekly payments, may dismiss or adjourn the application on such terms as it sees fit.

(6)The fact that an application has been dismissed under subsection (5) shall not be taken into account by the Directorate in any other proceedings under this Act.

[Section 58 inserted by No. 96 of 1990 s. 9; amended by No. 72 of 1992 s. 8; No. 48 of 1993 s. 28(1); No. 49 of 1996 s. 64; No. 42 of 2004 s. 150.]

59.Information as to remunerated work

(1)This section applies to a worker who has claimed or is receiving weekly payments of compensation from an employer (the employer).

(2)A worker who commences remunerated work (other than work with the employer) after making a claim for weekly payments of compensation, is to, within 7 days of — 

(a)commencing the work; or

(b)receiving notification under subsection (3),

whichever is the later, inform in writing the employer or the employer’s insurer of the commencement of the work.

Penalty: $500.

(3)The employer or the employer’s insurer is to notify in writing a worker of the worker’s obligations under subsection (2).

(4)A worker is not to be convicted of an offence under subsection (2) unless the employer or the employer’s insurer has complied with subsection (3).

(5)The employer or the employer’s insurer may, in writing, request a worker to provide the following particulars of remunerated work (other than work with the employer) commenced after the making of the worker’s claim for weekly payments of compensation — 

(a)the date of commencement of the work;

(b)the title, classification or description of the work;

(c)the remuneration for the work; and

(d)the name and address of the person (if any) for whom the work is performed.

(6)A worker is to provide in writing the particulars requested under subsection (5) within 7 days of the date of the request.

Penalty: $500.

(7)If the particulars provided by the worker under subsection (6) establish that the worker has commenced remunerated work, the employer or the employer’s insurer may discontinue or reduce the worker’s weekly payments of compensation in accordance with the particulars.

(8)The employer or the employer’s insurer must not discontinue or reduce a worker’s weekly payments of compensation under subsection (7) otherwise than in accordance with the particulars provided by the worker under subsection (6).

Penalty: $2 000.

(9)Subject to sections 57A, 57B and 58, if — 

(a)a worker has claimed but has not received from the employer, weekly payments of compensation;

(b)the worker provides particulars under subsection (6);

(c)the particulars establish that the worker has commenced remunerated work,

the employer or the employer’s insurer may make a decision in accordance with the particulars as to whether or not weekly payments of compensation are to be made for the period to which the particulars relate, and if so, the amount of the weekly payments.

(10)A worker who disputes the discontinuance or reduction of weekly payments of compensation under subsection (7) may apply to the Directorate for an order that the weekly payments be reinstated.

[Section 59 inserted by No. 72 of 1992 s. 9; amended by No. 48 of 1993 s. 28(1).]

60.Application for discontinuance or reduction of weekly payments

(1)Where weekly payments are made to a worker pursuant to this Division, the employer may apply to the Directorate at any time for an order that such payments be discontinued or reduced.

(2)If the employer satisfies the Directorate that there is a genuine dispute as to liability to pay compensation or as to the proper amount of such weekly payments, and in either case of the grounds of the dispute, the Directorate may order that the payments be suspended for such time as the Directorate directs or be discontinued or be reduced to such amount as it thinks proper or it may dismiss the application.

[Section 60 amended by No. 96 of 1990 s. 10; No. 72 of 1992 s. 10; No. 48 of 1993 s. 28(1).]

61.Unlawful discontinuance of weekly payments

(1)Subject to subsections (7) and (8) and section 84, where weekly payments of compensation for total or partial incapacity are made to a worker under this Act, they shall not be discontinued or reduced without the consent of the worker or an order of the Directorate unless the worker has returned to work or a medical practitioner has certified that the worker has total or partial capacity for work or that the incapacity is no longer a result of the disability and a copy of the certificate (which shall set out the grounds of the opinion of the medical practitioner) together with at least 21 clear days’ prior notice of the intention of the employer to discontinue the weekly payments or to reduce them by such amount as is stated in the notice, has been served by the employer upon the worker and unless within that period the worker has not made an application to the Directorate under subsection (3).

(2)Weekly payments of compensation for total or partial incapacity shall not be discontinued or reduced pursuant to subsection (1) unless the notice referred to in that subsection contains a clear statement — 

(a)informing the worker of the effect of failing to make an application under subsection (3) within the time referred to therein;

(b)informing the worker that he may obtain information from WorkCover WA as to the ways and means available to him to establish or protect his rights in respect of his disability; and

(c)containing such other information as may be prescribed.

(3)A worker who disputes the right of his employer to discontinue or reduce the weekly payments referred to in subsection (1) may, within the period of notice given under that subsection or, if the employer fails to give the notice required under that subsection, within the period of 21 days or such further time as the Directorate may allow from the day on which the weekly payments were discontinued or reduced, apply to the Directorate for an order that the weekly payment shall not be discontinued or reduced.

(4)Upon the hearing of an application referred to in subsection (3) the Directorate shall — 

(a)adjourn the application on such terms as it thinks fit;

(b)dismiss the application in which case the weekly payments may be discontinued or reduced, as the case may be; or

(c)make an order as to weekly payments by the employer to the worker on such terms as it thinks fit.

(4a)Upon the hearing of an application referred to in subsection (3) the Directorate — 

(a)may, where the case requires, take into account whether reasonable steps to facilitate the rehabilitation of the worker have been taken on the part of the employer and of the worker, and for the purposes of determining the application, accordingly treat the worker’s incapacity as being of such degree as it sees fit; and

(b)shall, where the case requires, take into account matters referred to in clause 8.

(5)Subject to subsections (7) and (8), weekly payments shall not be discontinued or reduced otherwise than in accordance with this Act.

Penalty: $2 000.

(6)A conviction for an offence that is a contravention of subsection (5) shall not affect any liability for the making of weekly payments of compensation under this Act.

(7)Subsections (1) and (2) do not apply to a discontinuance of payments — 

(a)on payment in full of the prescribed amount;

(b)if section 56 or Schedule 5 clause 2 applies in respect of the incapacity, on the worker reaching the age at which his entitlement to compensation ceases; or

(ba)if section 93E(8) applies to the payment of compensation; or

(c)on suspension of payments in accordance with section 64, 65, 72, or 145D; or

(d)on failure to comply with section 69 by a worker who does not reside in the State.

(8)Subsections (1) and (2) do not apply to a discontinuance or reduction of weekly payments of compensation under section 59(7).

[Section 61 amended by No. 44 of 1985 s. 20; No. 96 of 1990 s. 11; No. 72 of 1992 s. 11 and 12; No. 48 of 1993 s. 28(1); No. 34 of 1999 s. 13 and 32(2); No. 42 of 2004 s. 150.]

62.Review of weekly payments

(1)Any weekly payment may be reviewed by the Directorate at the request either of the employer or of the worker, and on such review, may be discontinued, reduced, or increased subject to any maximum provided, as from such date as the Directorate, having regard to the past or present condition of the worker, sees fit.

[(2)repealed]

[Section 62 amended by No. 96 of 1990 s. 12; No. 72 of 1992 s. 13; No. 48 of 1993 s. 28(1).]

63.No compensation during suspension

Where under this Act a right to compensation is lawfully suspended, no compensation is payable in respect of the period of suspension unless the Directorate otherwise orders.

[Section 63 amended by No. 48 of 1993 s. 28(1).]

64.Medical examination

(1)Where a worker has given notice of a disability he shall, if so required by the employer, submit himself for examination by a medical practitioner provided and paid by the employer, and, if he, without reasonable excuse, proof of which is on him, refuses to submit himself to such an examination, or in any way obstructs it, his right to compensation, and to take or prosecute any proceeding under this Act shall be suspended until such an examination has taken place, and shall cease unless he submits himself for examination within one month after being required to do so.

(2)Subsection (1) does not apply in relation to an election made by the worker for the purposes of section 24 to receive compensation in accordance with that section for permanent loss of the full efficient use of the back, neck or pelvis.

[Section 64 amended by No. 48 of 1993 s. 28(1).]

65.Periodical medical examination

Any worker receiving weekly payments under this Act shall, if so required by the employer, from time to time submit himself for examination by a medical practitioner provided and paid by the employer, and if he, without reasonable excuse, proof of which is on him, refuses to submit himself to such an examination, or in any way obstructs it, his right to such weekly payments shall be suspended until such examination has taken place, and shall cease unless he submits himself for examination within one month after being required to do so.

66.Regulations as to medical examination

A worker shall not be required to submit himself for examination by a medical practitioner under section 64 or 65 otherwise than in accordance with the regulations, nor at more frequent intervals than are prescribed.

67.Lump sum in redemption of weekly payments

(1)Where weekly payments for a permanent total or permanent partial incapacity resulting from a disability other than mesothelioma have continued for not less than 6 months, the liability for the incapacity is to be redeemed by the payment of a lump sum if —

(a)the worker and the employer agree to the redemption and on the amount of the lump sum; and

(b)a memorandum of the agreement is registered under Division 7.

(2)When a memorandum of an agreement under subsection (1) is sent to the Director as required by section 76, a statement of the benefits paid under this Act before the agreement was made is to be sent with the memorandum.

(3)The statement is to be provided by the employer or the employer’s insurer.

(4)Where permanent incapacity has resulted from mesothelioma and any weekly payment has been made, or the worker is entitled to any weekly payment, the liability for the incapacity shall, on the application of the worker, be redeemed by the payment of a lump sum to be settled, in default of agreement, under Part IIIA, and such lump sum may be ordered under Part IIIA to be paid to or invested or otherwise applied for the benefit of the person entitled to the lump sum.

(5)Where an order is made for redemption of the liability to pay compensation by payment of a lump sum under subsection (4), or an agreement for the redemption of a liability for incapacity is made and registered under Division 7 — 

(a)the worker is not entitled to further compensation; and

(b)clauses 9, 10, 17, 18, 18A and 19 cease to apply to the worker,

for the disability from which the incapacity resulted.

[Section 67 amended by No. 44 of 1985 s. 21; No. 48 of 1993 s. 36; No. 33 of 1999 s. 4; No. 34 of 1999 s. 14; No. 42 of 2004 s. 55(3)(b).]

68.Calculation of lump sum

[(1)-(2)repealed]

(3)Where the liability for an incapacity is to be redeemed under section 67(4), the lump sum shall be calculated by taking the amount that is equal to the prescribed amount less weekly payments, if any, made and discounting the amount so taken in accordance with a compound discount table prescribed by regulations.

(4)A reference in this section to a compound discount table shall be construed as including a reference to any formula or formulae prescribed for use in conjunction with such a compound discount table.

[Section 68 amended by No. 44 of 1985 s. 22; No. 48 of 1993 s. 37; No. 33 of 1999 s. 5; No. 34 of 1999 s. 15.]

69.Worker not residing in the State

Subject to this Act, if a worker receiving a weekly payment does not reside in the State he is entitled to receive the amount of the weekly payments accruing due so long as he proves, in such a manner and at such intervals as may be prescribed, his identity and the continuance of the incapacity in respect of which the weekly payment is payable.

70.Reference to medical assessment panel

(1)Where pursuant to section 64 or 65 a worker has submitted himself for examination by a medical practitioner, or has been examined by a medical practitioner selected by himself, the employer or the worker, as the case may be, shall within 14 days after such examination furnish the other with a copy of the report of that practitioner as to the worker’s medical condition, and, after the copy of the report is so furnished, in the event of no agreement being reached between the employer and the worker as to the worker’s medical condition the matter may be referred by the Director for determination by a medical assessment panel if either party so requests in the manner prescribed and on payment of the prescribed fee.

(2)The party who desires the reference of a matter to a medical assessment panel shall make the request within one month after the date of the receipt by him of a copy of the medical report furnished to him by the other party.

[(3)repealed]

(4)Where no agreement can be reached between the employer and the worker as to whether the disability is a fresh disability or the recurrence of an old disability or whether or to what extent the incapacity of the worker is due to the disability, this section, subject to any regulations, applies as if the question were a question as to the medical condition of the worker.

[Section 70 amended by No. 86 of 1986 s. 5; No. 96 of 1990 s. 13; No. 48 of 1993 s. 28(1).]

71.Recovery of payments

Where WorkCover WA, the employer, or the insurer has paid compensation or expenses to a worker or dependant and that person was not lawfully entitled to that payment or to any part of the amount of that payment, WorkCover WA, the employer, or the insurer, as the case may be, may apply to the Directorate for an order that compensation or expenses so paid be refunded, and the Directorate has jurisdiction to hear and determine such an application and to make any order in relation thereto or any part thereof as it considers appropriate in the circumstances.

[Section 71 amended by No. 48 of 1993 s. 28(1); No. 42 of 2004 s. 57(a) and (b).]

72.Suspension of payments

(1)A worker’s entitlement to weekly payments of compensation under this Act is suspended — 

(a)during any period that the worker is serving a sentence of imprisonment; and

(b)during any period that the worker being required by the Directorate to undergo rehabilitation as specified by the Directorate — 

(i)refuses to do so;

(ii)ceases to do so before so authorised by the person providing the rehabilitation; or

(iii)does not, in the opinion of a medical practitioner to whom the Commission has, on the recommendation of a rehabilitation provider, referred the matter, reasonably co‑operate in, or regularly attend for, such vocational rehabilitation.

(2)The worker’s entitlement to compensation is suspended from the date on which the Director certifies in writing to the existence of any ground for suspension specified in subsection (1) until the date from which he certifies that ground for suspension no longer exists.

(3)A certificate of the Director issued pursuant to subsection (2) is binding on the worker, the employer, and his insurer.

(4)Where the ground for suspension is a ground specified in subsection (1)(b) and that ground continues to exist for one month from the date of the Director’s certificate of its existence or such time as the Directorate otherwise directs, then the worker’s entitlement to further compensation for the disability in respect of which he was required to undergo rehabilitation ceases.

[Section 72 amended by No. 86 of 1986 s. 5; No. 96 of 1990 s. 14; No. 48 of 1993 s. 28(1).]

[Division 5A repealed by No. 48 of 1993 s. 28(1).]

Division 6 — Disputes between employers

73.Worker entitled but dispute between employers

(1)Where there is a dispute between employers as to liability but no dispute that the worker is entitled to compensation from some employer for a fresh disability or the recurrence of an old disability the employer of the worker at the time of the latest disability or recurrence is liable to pay compensation under this Act until the question of which employer is liable or how liability is to be apportioned between employers has been resolved.

(2)The worker or his dependants, if so required by the employer first liable to pay compensation, shall furnish to him the name and address of any employer in whose employment the worker was when any like disability previously occurred, as he or they may possess.

(3)If the worker has filed an application for compensation, the respondent employer shall join as a party any other employer whom he alleges is wholly or partially liable to pay the compensation.

(4)If the worker has not filed an application the employer first liable to pay compensation may refer to the Director for conciliation under Part IIIA the question of whether some other employer is wholly or partially liable to pay compensation.

(5)If a dispute resolution body finds that it was a recurrence and not a fresh disability or partly a recurrence and partly a fresh disability, it may order that other employer to pay to the applicant employer the whole or a part of the amount of compensation paid to the worker and to pay any further compensation to which the worker is entitled.

(6)If the dispute between employers is in respect of liability to pay compensation for noise induced hearing loss under section 24A, WorkCover WA shall provide a conciliation officer, review officer or court dealing with the dispute under Part IIIA with copies of the results of any relevant audiometric tests stored by WorkCover WA under clause 5(2) of Schedule 7.

[Section 73 amended by No. 36 of 1988 s. 11; No. 96 of 1990 s. 16; No. 48 of 1993 s. 28(1); No. 42 of 2004 s. 150.]

74.Dispute between insurers

(1)Where a worker is entitled to compensation for a fresh disability or the recurrence of an old disability from an employer but there is a dispute between insurers as to liability to indemnify that employer, the insurer of the employer of the worker at the time of the latest disability or recurrence is liable to indemnify the employer until a dispute resolution body has otherwise determined.

(1a)An employer or insurer may refer to the Director for conciliation under Part IIIA a dispute between insurers notwithstanding any term or condition of any policy of insurance providing for some other means of settling disputes.

(2)A dispute resolution body shall determine which insurer is liable or how liability is to be apportioned and may make such order as it thinks proper for the reimbursement of one insurer by another and for the indemnity of the employer in respect of his liability under this Act.

[Section 74 amended by No. 44 of 1985 s. 23; No. 96 of 1990 s. 17; No. 48 of 1993 s. 28(1); No. 34 of 1999 s. 16.]

74A.Apportionment under sections 73 and 74

Liability shall not be so apportioned under section 73 or 74 that part of the liability to pay compensation, or indemnify an employer in respect of compensation, relates to a disability that occurred before the commencement of section 16 of the Workers’ Compensation and Assistance Amendment Act 1990 1.

[Section 74A inserted by No. 96 of 1990 s. 18.]

75.Obligation to make weekly payments preserved

Where an employer is liable under section 73(1) to pay compensation under this Act, neither that employer nor his insurer shall give notification under section 57A(3)(b) or (c) or 57B(2)(b) or (c) in respect of weekly payments claimed, but nothing in this section affects the right to make an application under section 73(4) in relation to the matter.

[Section 75 inserted by No. 96 of 1990 s. 19.]

Division 7 — Agreements

76.Registration of memorandum of agreement

(1)Subject to section 92(h), where the amount of compensation under this Act has been ascertained, or any weekly payment varied, or any other matter decided under this Act by agreement, or any agreement, whether purporting to be made under this Act or not, has been entered into whereby a worker agrees to compound any claim or right to compensation under this Act, a memorandum thereof shall be sent, in manner prescribed, by any party interested, to the Director, who, subject to subsection (2a), shall, on being satisfied as to its genuineness, and, where the agreement provides for the payment of compensation pursuant to an election under section 24 or 24A, as to the adequacy of the amount thereof, record such memorandum in a special register without fee, and thereupon the memorandum shall for all purposes be enforceable as an award or order made by the Directorate.

(2)No such memorandum shall be recorded before 7 days after the despatch by the Director of notice to the parties interested.

(2a)The Director cannot, under this section, record a memorandum of an agreement for the payment of a lump sum in redemption of the liability to pay compensation unless the Director is satisfied that the worker is aware of the consequences of the recording of the memorandum.

(3)No agreement between a worker and an employer has any force or validity if it exempts the employer wholly or partially from any liability for compensation to which the worker is or may subsequently become entitled under this Act, and notwithstanding any such agreement, a worker may recover from his employer any compensation to which he is, or subsequently becomes, so entitled, but the foregoing provisions of this subsection have no application to an agreement for the redemption of the liability to pay compensation if a memorandum of the agreement has been duly recorded under this section.

(4)Where a worker seeks to record a memorandum of agreement between his employer and himself for the payment of compensation under this Act, and the employer proves that the worker has in fact returned to work and is no longer incapacitated, and objects to the recording of such memorandum, the memorandum shall only be recorded, if at all, on such terms as the Directorate, under the circumstances, may think just.

(5)The Directorate may at any time rectify the register.

(6)A memorandum received for registration shall be examined as to — 

(a)the genuineness of the agreement; and

(b)the adequacy of the amount of any compensation pursuant to an election under section 24 or 24A payable under the agreement,

and if it appears to the Director as the result of such examination or as the result of any information which the Director considers sufficient that a redemption agreement or an agreement as to the amount of compensation payable to the worker or to a person under any legal disability or to dependants, ought not to be registered by reason of the agreement having been obtained by fraud or undue influence or other improper means, or by reason that the amount of compensation pursuant to an election under section 24 or 24A payable under the agreement is inadequate or excessive, the Director shall refuse to record the memorandum of the agreement sent for registration, and in that case shall refer the matter to a compensation magistrate’s court which shall make such order (including an order as to any sum already paid under the agreement) as the court thinks just.

(7)For the purpose of carrying out his duties under subsection (6) the Director may, by notice in writing, require the attendance before him of the parties to the agreement and interrogate them in relation to the agreement and where the medical opinion of a medical practitioner is material and relevant to the question of the adequacy of the amount of compensation pursuant to an election under section 24 or 24A payable under the agreement, the Director may require the employer to have the worker examined by a medical practitioner nominated by the Director, at the expense of the employer, in any case where the Director is of the opinion that a report from such medical practitioner will assist him in determining the matter of the adequacy or inadequacy of the amount of the compensation.

(8)The Directorate may, upon application being made by either party within 6 months after a memorandum of an agreement as to the redemption of the liability to pay compensation for a disability by a lump sum, or of an agreement as to the amount of compensation payable to a person under any legal disability, or to dependants, has been recorded in the register, order that the record be removed from the register on proof to the Board’s satisfaction that the agreement was obtained by fraud or undue influence or other improper means, or that the amount of compensation pursuant to an election under section 24 or 24A payable under the agreement is inadequate or excessive, and may make such order (including an order as to any sum already paid under the agreement) as under the circumstances the Directorate thinks just.

(9)Where a memorandum has been recorded under this section the Director shall without fee issue a certificate of the memorandum and the recording on application by any party concerned.

(10)Subject to this Act the certificate is evidence of the subject matter referred to in the certificate before any court or other tribunal or person in respect of proceedings to enforce compliance with the subject matter of the memorandum and for all other purposes under this Act.

[Section 76 amended by No. 48 of 1993 s. 28(1) and 38; No. 33 of 1999 s. 6; No. 34 of 1999 s. 17; No. 74 of 2003 s. 134(2).]

77.Registration obligatory

An agreement to which section 76 is applicable shall not be binding on or enforceable against the parties or admitted as valid unless it is registered as provided in this Division.

78.Effect of non‑registration of agreement

An agreement as to the redemption of the liability to pay compensation for a disability by a lump sum if not registered in accordance with this Act does not nor does the payment of the sum payable under the agreement exempt the person by whom the compensation is payable from liability to continue to pay it; and an agreement as to the amount of compensation to be paid to a person under legal disability or to dependants, if not so registered, does not, nor does the payment of the sum payable under the agreement, exempt the person by whom the compensation is payable from liability to pay compensation.

Division 8 — Other matters affecting compensation

79.Wilful and false representation

Where it is proved that the worker has, at the time of seeking or entering employment in respect of which he claims compensation for a disability, wilfully and falsely represented himself as not having previously suffered from the disability a dispute resolution body may in its discretion refuse to award compensation which otherwise would be payable.

[Section 79 amended by No. 48 of 1993 s. 28(1).]

80.Effect on annual leave, long service leave and sick leave

(1)Compensation is payable in accordance with this Act to a worker in respect of any period of incapacity notwithstanding that the worker has received or is entitled to receive in respect of such period any payment, allowance, or benefit for annual leave or long service leave under any Act of the Commonwealth or of the State, any industrial award under any such Act, or any other industrial agreement applicable to his employment, and the amount of compensation so payable shall be the amount which would have been payable to the worker had he not received or been entitled to receive in respect of such period any such payment, allowance, or benefit.

(2)A worker is not entitled to receive from any employer payments for sick leave entitlements for any period for which he receives weekly payments of compensation for disability under this Act, and where the first‑mentioned payments are made and the second‑mentioned payments are subsequently made in respect of the same period, the worker shall reimburse to the employer the first‑mentioned payments and the employer shall reinstate the worker’s sick leave entitlements as a credit to the extent that the worker does so reimburse the employer.

(3)To the extent, if any, that a worker fails to reimburse an employer as required by subsection (2), the employer may sue and recover the relevant amount, and to the extent of recovery the employer shall reinstate as a credit the sick leave entitlements.

[Section 80 amended by No. 42 of 2004 s. 64.]

81.Effect on public holidays pay

Notwithstanding any provision that applies to or in relation to the employment of a worker apart from this Act, where during any period in respect of which weekly payments are payable pursuant to this Act a public holiday occurs, an employer shall not be liable to make any payment to the worker in respect of that holiday other than payment for that day as a part of those weekly payments.

82.Recovery of cost of services rendered

Where a person or authority has rendered to or provided for a worker any services for the cost of which the employer is liable to pay to the worker under this Act — 

(a)the employer may pay to that person or authority the whole or any part of the amount owing to him or it and such a payment shall, to the extent of the amount paid, be a discharge of the liability of the employer to the worker under this Act and of the liability of the worker to that person or authority for the services; and

(b)if the whole or any part of the amount owing to that person or authority is not paid he or it has, in respect thereof, the same rights and remedies against the employer as the worker has.

83.Industrial award and partial incapacity

(1)Notwithstanding any industrial award or industrial agreement, other than any award or certified agreement as those terms are defined in the Workplace Relations Act 1996 of the Commonwealth, where a worker is rendered less able to earn full wages by reason of a disability for which compensation is or has been payable under this Act, he may be employed at such wage, being such proportion of the full wage for work in the same employment, as he and the employer may agree as being appropriate to his earning capacity having regard to the nature and extent of his disability.

(2)In default of agreement as to the appropriate proportion in any case that proportion may be determined by the Directorate.

[Section 83 amended by No. 48 of 1993 s. 28(1); No. 42 of 2004 s. 65(1).]

84.Worker not to be prejudiced by resuming work

Where a worker who has been incapacitated by disability resumes or attempts to resume work, and is unable, on account of the disability, to work or continue to work, the resumption or attempted resumption of work by him shall not deprive him of any entitlement to compensation under this Act which he otherwise had.

84AA.Employer to keep position available during worker’s incapacity

(1)Where a worker who has been incapacitated by disability attains partial or total capacity for work in the 12 months from the day the worker becomes entitled to receive weekly payments of compensation from the employer, the employer shall provide to the worker — 

(a)the position the worker held immediately before that day if it is reasonably practicable to provide that position to the worker; or

(b)if the position is not available, or if the worker does not have the capacity to work in that position, a position — 

(i)for which the worker is qualified; and

(ii)that the worker is capable of performing,

most comparable in status and pay to the position mentioned in paragraph (a).

Penalty: $5 000.

(2)The requirement to provide a position mentioned in subsection (1)(a) or (b) does not apply if the employer proves that the worker was dismissed on the ground of serious or wilful misconduct.

(3)Where, immediately before the day mentioned in subsection (1), the worker was acting in, or performing on a temporary basis the duties of, the position mentioned in paragraph (a) of that subsection, that subsection applies only in respect of the position held by the worker before taking the acting or temporary position.

(4)For the purpose of calculating the 12 months mentioned in subsection (1), any period of total capacity for work is not to be included.

[Section 84AA inserted by No. 48 of 1993 s. 39.]

Part IIIA — Dispute resolution

[Heading inserted by No. 48 of 1993 s. 22.]

Division 1 — General

[Heading inserted by No. 48 of 1993 s. 22.]

84A.Definitions

In this Part, unless the contrary intention appears — 

conciliation means procedures taken by a conciliation officer under Division 2 for the resolution of a dispute;

disputemeans —

(a)a dispute in connection with a claim for compensation under this Act and includes —

(i)a dispute as to liability to make or continue to make weekly payments of compensation;

(ii)a dispute between employers as to liability;

(iii)a dispute between insurers as to liability to indemnify an employer;

(iv)a dispute between an employer and an insurer as to the insurer’s liability to indemnify the employer;

or

(b)a matter to be determined by a dispute resolution body under section 67(2a)(b);

review means procedures taken by a review officer under Division 3 for the resolution of a dispute.

[Section 84A inserted by No. 48 of 1993 s. 22; amended by No. 34 of 1999 s. 18.]

84B.Exclusive jurisdiction

Proceedings for the resolution of a dispute are not capable of being brought other than under this Part.

[Section 84B inserted by No. 48 of 1993 s. 22.]

84C.Dependants

In considering a question as to whether a person who resides outside the State is a dependant of a worker, a dispute resolution body is to require proof by or including documentary evidence that the worker has, wholly or in part as the case may be, supported the person and is not to accept as sufficient proof a statutory declaration or affidavit unsupported by documentary evidence to that effect.

[Section 84C inserted by No. 48 of 1993 s. 22.]

84D.Relief or redress not restricted to claim

The granting of relief or redress under this Act is not necessarily to be restricted to the specific claim made nor to the subject matter of the claim.

[Section 84D inserted by No. 48 of 1993 s. 22.]

84E.Order as to total liability

(1)Where a dispute resolution body considers that a disability to a worker that is compensable under this Act has resulted in the permanent total incapacity for work of the worker, it may, subject to this section, make such order as to the total liability of the employer for the incapacity as the dispute resolution body thinks proper in the circumstances if — 

(a)an order for redemption of the liability for the incapacity has not already been made under section 67(4);

(aa)no memorandum of agreement for the payment of a lump sum in redemption of the liability for the incapacity has been recorded under section 76; and

(b)the total weekly payments by way of compensation payable under clause 7 for that disability have reached the prescribed amount.

(2)A dispute resolution body is not to make an order in the exercise of its discretion under subsection (1) unless it considers an order ought to be made, having regard to the social and financial circumstances and the reasonable financial needs of the worker.

(3)The total liability of the employer ordered under this section is not to exceed the lesser of — 

(a)the sum of $50 000; or

(b)weekly payments at the rate to which the worker was entitled at the time when the total weekly payments for the disability of the worker reached the prescribed amount — 

(i)for the period of the expectation of life of the worker; or

(ii)if section 56 or Schedule 5 clause 2 applies in respect of the incapacity, up to the date when weekly payments would cease by reason of age,

whichever is the shorter.

(4)In making an order under this section, a dispute resolution body — 

(a)is to order weekly payments at such rate as it thinks proper in the circumstances having regard to the matters referred to in subsection (2), but not at a rate that exceeds the rate to which the worker was entitled at the time when the total weekly payments for the disability of the worker reached the prescribed amount; and

(b)may order payment of an amount for arrears of such weekly payments from the time when the total weekly payments for the worker’s disability reached the prescribed amount to the date of the order.

[Section 84E inserted by No. 48 of 1993 s. 22; amended by No. 33 of 1999 s. 7(1) and (2).]

84F.Orders relating to payment of compensation in respect of persons under legal disability or who are dependants

(1)A question as to the payment of compensation that is payable to —

(a)a person under a legal disability to give an effective discharge for payment; or

(b)a dependant or dependants of a deceased worker,

may be referred to the Director for conciliation as a dispute.

(2)A dispute resolution body may order that compensation that is payable to a person under a legal disability to give an effective discharge for payment is to be paid to the Commission and applied in the manner specified in the order.

(3)A dispute resolution body may order that all or any of the compensation that is payable to a dependant or dependants of a deceased worker —

(a)is to be paid to the Commission and applied in the manner specified in the order; or

(b)is to be paid to a dependant or dependants of the deceased worker as specified in the order.

(4)After it has been ordered under subsection (2) or (3)(a) that compensation be paid to the Commission, a question as to —

(a)whether the compensation should be applied differently; or

(b)if the order was under subsection (3)(a), whether all or any of the compensation should be paid to a dependant or dependants of the deceased worker,

may be referred to the Director for conciliation as a dispute.

(5)A dispute resolution body may determine a question referred under subsection (4) and make such order as it thinks proper.

[Section 84F inserted by No. 34 of 1999 s. 19.]

84G.Particular details in order or agreement for a lump sum payment

An order of a dispute resolution body, including a consent order, or an agreement registered under Division 7 of Part III, for a lump sum payment is to specify the amount of any part of that lump sum that is for one or more of the following — 

(a)weekly payments of compensation, by redemption or otherwise;

(b)compensation payable under Schedule 2, in which case the percentage loss of use is also to be specified;

(c)redemption amount under Schedule 5 clause 4;

(d)supplementary amount under Schedule 5 clause 2, 4 or 8;

(e)expenses as are provided for in clauses 9, 17, 18, and 19,

as the case requires.

[Section 84G inserted by No. 48 of 1993 s. 22.]

84H.Dispute resolution body may regard illegal contracts of employment as valid

If in any proceedings for the recovery under this Act of compensation for a disability it appears to a dispute resolution body that the contract under which the disabled worker was engaged at the time when the disability occurred was illegal, the dispute resolution body may, if, having regard to all the circumstances of the case it thinks proper to do so, deal with the matter as if the disabled person had at that time been a worker under a valid contract.

[Section 84H inserted by No. 48 of 1993 s. 22.]

84I.Requirements for taking proceedings

(1)Proceedings for the recovery under this Act of compensation for a disability are not maintainable unless — 

(a)a notice of the occurrence of the disability has been given in writing containing substantially the information required by subsection (2) as soon as practicable after its happening; and

(b)the claim for compensation with respect to such disability has been made within 12 months from the occurrence of the disability or, in case of death, within 12 months from the time of death,

but — 

(c)the want of or any defect or inaccuracy in such notice is not a bar to the maintenance of such proceedings, if it is found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in his or her defence by the want, defect or inaccuracy, or that such want, defect, or inaccuracy was occasioned by mistake, absence from the State, or other reasonable cause; and

(d)the failure to make a claim within the period mentioned in paragraph (b) is not a bar to the maintenance of such proceedings, if it is shown that the employer has not been prejudiced in his or her defence by such failure, or if it is found that the failure was occasioned by mistake, absence from the State, or other reasonable cause.

(2)Notice in respect of a disability under this Act is to give the name and address of the person disabled, is to state in ordinary language the cause of the disability and the date and place at which the disability occurred, is to include such other information, if any, as may be prescribed, and is to be served on the employer, or, if there is more than one employer, upon one of such employers.

(3)The notice may be served by delivering it at, or sending it by post in a registered letter addressed to, the residence or place of business of the person on whom it is to be served.

(4)When the employer is a body of persons, corporate or unincorporate, the notice may also be served by delivering it at, or by sending it by post in a registered letter addressed to the employer at the office, or, if there is more than one office, any one of the offices of such body.

(5)When the employer is — 

(a)the Crown in right of the State, notice in respect of a disability under this Act is to be served on the State Solicitor, at Perth, or the manager of the work on which the worker was employed at the time of the accident;

(b)the Governor under the Governor’s Establishment Act 1992, notice in respect of a disability under this Act is to be served on the Official Secretary within the meaning of that Act;

(c)the President of the Legislative Council, notice in respect of a disability under this Act is to be served — 

(i)in the case of a worker who is a member of the Department of the Legislative Council, on the Clerk of the Legislative Council; or

(ii)in the case of a worker who is an electorate officer, on the Director‑General;

(d)the Speaker of the Legislative Assembly, notice in respect of a disability under this Act is to be served — 

(i)in the case of a worker who is a member of the Department of the Legislative Assembly, on the Clerk of the Legislative Assembly; or

(ii)in the case of a worker who is an electorate officer, on the Director‑General;

or

(e)the President of the Legislative Council and the Speaker of the Legislative Assembly, acting jointly, notice in respect of a disability under this Act is to be served, in the case of a worker who is a member of — 

(i)the Department of the Parliamentary Reporting Staff, on the Chief Hansard Reporter;

(ii)the Department of the Parliamentary Library, on the Parliamentary Librarian; or

(iii)the Joint House Department, on the Executive Officer of the Joint House Department,

as the case requires.

(6)A reference in subsection (5)(c), (d) or (e) to an expression that is defined in the Parliamentary and Electorate Staff (Employment) Act 1992 is a reference to that expression as so defined.

[Section 84I inserted by No. 48 of 1993 s. 22; amended by No. 34 of 1999 s. 20; No. 65 of 2003 s. 96.]

84J.Worker making statement to employer or insurer

Where a worker, after a disability has occurred, makes a statement in writing, in relation to the disability to the employer of the worker or to an insurer or to any person acting on behalf of the employer or insurer, that statement is not to be admitted in evidence if tendered by the employer or insurer or used by the employer or insurer in proceedings before a dispute resolution body unless the employer or insurer has at least 28 days before the hearing of those proceedings supplied to the worker or to a solicitor or agent acting on behalf of the worker in the proceedings a copy in writing of the statement.

[Section 84J inserted by No. 48 of 1993 s. 22.]

84K.Provision of certain documents before commencement of proceedings

(1)A worker who has suffered a disability, or such a worker’s solicitor or agent, may request the worker’s employer at the time the disability occurred, or that employer’s insurer, to provide the person making the request with a copy of such relevant documents as are in the possession of or under the control of the employer and the insurer.

(1a)If a worker has, under section 84I(1)(b), made a claim for compensation with respect to noise induced hearing loss, the worker’s employer or that employer’s insurer may request the Commission to provide the person making the request with a copy of any documents in the possession of or under the control of the Commission that —

(a)are of a kind described in subsection (4)(d), (e), or (f); or

(b)relate to the worker’s employment history or the worker’s exposure to noise.

(2)A request under subsection (1) or (1a) may be made at any time after the occurrence of the disability and before the matter is referred for conciliation.

(3)A request under subsection (1) or (1a) is to be complied with within 7 days after it is received.

(4)In subsection (1), relevant document means — 

(a)any contract of service or apprenticeship to which the worker is a party;

(b)any contract for service to which the worker is a party;

(c)records of wages or other remuneration paid to the worker;

(d)any report relevant to the disability by a medical practitioner who has treated the worker for the disability;

(e)any report by a medical practitioner who has conducted tests or investigations on the worker in relation to the disability;

(f)any report by a medical practitioner who has been consulted by a medical practitioner referred to in paragraph (d) or (e) in connection with treatment of, or tests related to, the disability;

(g)any report by a vocational rehabilitation provider in relation to the worker;

(h)any notice of occurrence of the disability given under section 84I(1)(a);

(i)any claim for compensation with respect to the disability made under section 84I(1)(b).

(5)In this section, disability includes alleged disability.

[Section 84K inserted by No. 48 of 1993 s. 22; amended by No. 34 of 1999 s. 21.]

84L.Evidence of communication between worker and officer of Commission

Evidence of any communication between a worker and a person employed by the Commission and acting in the capacity of a social worker or rehabilitation counsellor is not admissible in proceedings before a dispute resolution body unless, during the course of the proceedings, the worker consents to the evidence being so admitted.

[Section 84L inserted by No. 48 of 1993 s. 22.]

84M.Payment of compensation awarded

Any sum awarded as compensation, unless paid into the custody of the Commission and in the absence of any order, is to be paid on the receipt of the person to whom it is payable under any agreement, award, or order.

[Section 84M inserted by No. 48 of 1993 s. 22.]

Division 2 — Conciliation

[Heading inserted by No. 48 of 1993 s. 22.]

84N.Referral for conciliation

Any party to a dispute may, by application, refer the dispute to the Director for conciliation.

[Section 84N inserted by No. 48 of 1993 s. 22.]

84O.Allocation of matters

The Director is to make arrangements as to the conciliation officer who is to conciliate in connection with a particular dispute or class of disputes referred for conciliation.

[Section 84O inserted by No. 48 of 1993 s. 22.]

84P.When and how conciliation is to take place

(1)Conciliation by a conciliation officer is to commence within 14 days after the day on which a dispute is referred to the Director for conciliation.

(2)The conciliation officer is to act fairly, economically, informally and quickly in making all reasonable efforts to bring the parties to the dispute to agreement.

(3)The conciliation officer is to act according to the substantial merits of the case without regard to technicalities or legal forms or precedent.

[Section 84P inserted by No. 48 of 1993 s. 22.]

84Q.Powers

(1)The conciliation officer may require a party to the dispute to — 

(a)attend at a meeting with the conciliation officer;

(b)answer questions put by the conciliation officer;

(c)produce documents to the conciliation officer, or consent to another person who has relevant documents producing them to the conciliation officer;

(d)attend at a conciliation conference at which the conciliation officer and any other party to the dispute is present.

(2)During conciliation a person is not entitled to be represented by a legal practitioner but the conciliation officer and each other party to the dispute may agree to the person being so represented.

[Section 84Q inserted by No. 48 of 1993 s. 22.]

84R.Medical issues

(1)If permitted by section 145A to do so, a conciliation officer may refer a question as to —

(a)the nature or extent of a disability;

(b)whether a disability is permanent or temporary; or

(c)a worker’s capacity for work,

for determination by a medical assessment panel.

(2)Without limiting subsection (1), that subsection applies to questions as to the loss of, or the permanent loss of the efficient use of, any of the parts or faculties of the body referred to in column 1 of Schedule 2, or to the degree of that loss.

[Section 84R inserted by No. 48 of 1993 s. 22; amended by No. 34 of 1999 s. 22.]

84S.Medical and other expenses

A conciliation officer may order an employer or insurer to pay to a worker any sum payable under clause 17 if the amount of the payment does not exceed 2% of the prescribed amount.

[Section 84S inserted by No. 48 of 1993 s. 22.]

84T.Interpreters

(1)Where a person who is involved in a conciliation as a party or in any other capacity is not reasonably fluent in English, the person may communicate through an interpreter.

(2)In a conciliation, a person may present any written submission or evidence in a language other than English if it is accompanied by a translation into English and a declaration on oath by the translator to the effect that the translation accurately reproduces in English the contents of the original document.

[Section 84T inserted by No. 48 of 1993 s. 22.]

84U.Failure to attend

If a party to a dispute who has been required to attend before a conciliation officer does not do so, the absence of the person does not preclude the making of any order that could be made if the person had attended.

[Section 84U inserted by No. 48 of 1993 s. 22.]

84V.Payments under direction etc. not admission of liability

(1)The fact that a person pays or continues to pay compensation in accordance with an order or recommendation under this Division or does not proceed for the review of such an order is not an admission of liability by the person.

(2)Revocation of, or refusal to revoke, an order under this Division is not a finding as to liability in respect of the matter concerned.

[Section 84V inserted by No. 48 of 1993 s. 22.]

84W.Offences

(1)A person who, in connection with a conciliation, makes a statement that the person knows to be false or misleading in a material particular commits an offence and is liable to a fine of $2 000.

(2)A person who fails to comply with a requirement or order of a conciliation officer commits an offence and is liable to a fine of $2 000.

[Section 84W inserted by No. 48 of 1993 s. 22.]

84X.Costs

(1)Each party to a dispute referred for conciliation bears the party’s own costs.

(2)An agreement is not to be made for a legal practitioner or other person to receive, for appearing for or acting on behalf of a person in the conciliation, any greater reward than is provided for —

(a)in the case of a legal practitioner, by any legal costs determination (as defined in the Legal Practice Act 2003); or

(b)in the case of any other person, by the regulations.

(3)An agreement made contrary to this section is void.

[Section 84X inserted by No. 48 of 1993 s. 22; amended by No. 34 of 1999 s. 23; No. 65 of 2003 s. 72(2).]

84Y.Review

(1)A conciliation officer is to refer a dispute for review if any of the parties so requests unless of the opinion that the party making the request has not made reasonable endeavours to have the dispute resolved through conciliation.

(2)If a conciliation officer refers a dispute for review the conciliation officer may make an order that weekly payments be made by the employer to the worker.

(3)A conciliation officer is not to order that weekly payments be made for a period that exceeds 10 weeks.

(4)A conciliation officer may vary or revoke an order previously made by that officer under this Division.

[Section 84Y inserted by No. 48 of 1993 s. 22; amended by No. 34 of 1999 s. 24.]

Division 3 — Review

[Heading inserted by No. 48 of 1993 s. 22.]

84Z.Allocation of matters

The Director is to make arrangements as to the review officer who is to deal with a particular matter or class of matters referred for review.

[Section 84Z inserted by No. 48 of 1993 s. 22.]

84ZA.When and how review is to take place

(1)Review by a review officer is to commence within 14 days after the day on which a matter is referred for review, or as soon as practicable thereafter.

(2)The review officer is to act fairly, economically, informally and quickly in resolving the dispute whether by bringing the parties to agreement or otherwise.

(3)The review officer is to act according to the substantial merits of the case without regard to technicalities or legal forms or precedent.

(4)Subject to the regulations, the review officer may give directions as to the conduct of the proceedings.

[Section 84ZA inserted by No. 48 of 1993 s. 22; amended by No. 34 of 1999 s. 25.]

84ZB.Powers

(1)The review officer may — 

(a)by summons signed by the review officer, require — 

(i)any person to attend before the review officer;

(ii)the production before the review officer of any document;

(b)inspect any document produced, and retain it for such reasonable period as it is required, and make copies of the document or any of its contents;

(c)require any person to swear to truly answer all questions relating to a matter before the review officer that are put to the person by the review officer (and for that purpose the review officer or another officer employed in the Directorate and assisting the review officer may administer any oath or affirmation); and

(d)require any person attending before the review officer (whether or not the person has been summoned to attend) to answer any relevant question put by the review officer.

(2)A person is not excused from complying with a requirement under subsection (1) to swear, or to answer any question, on the ground that the answer to the question might be incriminating or render the person liable to a penalty, but an answer given by the person is not admissible in evidence against the person in any civil or criminal proceedings other than proceedings for perjury or for an offence under this Part arising out of the false or misleading nature of that answer.

(3)In the course of the review the review officer may — 

(a)receive in evidence any transcript of evidence in proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and

(b)adopt, as the review officer thinks fit, any finding, decision, or judgment of a court or other person or body acting judicially that is relevant to the review.

[Section 84ZB inserted by No. 48 of 1993 s. 22.]

84ZC.Offences

A person who — 

(a)having been served with a summons to attend before the review officer, fails without reasonable excuse (proof of which lies upon that person) to attend in obedience to the summons;

(b)having been served with a summons to produce before the review officer any document, fails without reasonable excuse (proof of which lies upon that person) to comply with the summons;

(c)misbehaves before the review officer, wilfully insults the review officer, or interrupts the proceedings;

(d)fails without reasonable excuse (proof of which lies upon that person) to swear, or to answer any question, when required to do so by the review officer;

(e)in connection with a review, makes a statement that the person knows to be false or misleading in a material particular; or

(f)fails to comply with a requirement or order of a review officer,

commits an offence and is liable to a fine of $2 000.

[Section 84ZC inserted by No. 48 of 1993 s. 22.]

84ZD.Rules of evidence not to apply

(1)The review officer is not bound by rules of evidence, but may inform himself or herself on any matter in such manner as the review officer thinks fit.

(2)The review officer may refer any technical or specialised matter to an expert and accept that expert’s report as evidence.

(3)The review officer who obtains an expert’s report is to call the expert for examination on the subject matter of the report if a party to the proceedings so requests.

[Section 84ZD inserted by No. 48 of 1993 s. 22.]

84ZE.Representation permitted

A party is entitled to be represented by a legal practitioner at any proceedings before a review officer if — 

(a)all parties to the dispute agree to legal practitioners appearing and being heard at the proceedings; or

(b)the review officer is of the opinion that a question of law is raised or is likely to be raised or argued at the proceedings and allows legal practitioners to appear and be heard at the proceedings.

[Section 84ZE inserted by No. 48 of 1993 s. 22.]

84ZF.Orders generally

(1)The review officer may make such order as may be appropriate for giving effect to the review officer’s decision.

(2)The review officer may confirm, vary or revoke an order made by a conciliation officer.

(3)If new information becomes available after the review officer makes a decision, the review officer may reconsider the decision and —

(a)vary or revoke any order previously made by the review officer;

(b)make any further order,

as the review officer considers appropriate having regard to the new information.

(4)For the purposes of subsection (3), new information is information that was not available to the review officer when the decision was made and, in the opinion of the review officer, justifies reconsideration of the decision.

[Section 84ZF inserted by No. 48 of 1993 s. 22; amended by No. 34 of 1999 s. 26.]

84ZG.Weekly payments

If a review officer determines that a person ordered by a conciliation officer to make weekly payments is not liable to make payments at all or is liable to make payments at a lesser rate — 

(a)the worker who received the payments is not required to make a refund unless the review officer so orders under paragraph (b);

(b)the review officer may — 

(i)order the worker concerned to refund the whole or a specified part of the payments if satisfied that the claim for compensation was wholly or partly fraudulent or was made without reasonable cause; or

(ii)order any other party to the dispute who the review officer determines was liable for the whole or any part of the payments to reimburse the person who made the payments.

[Section 84ZG inserted by No. 48 of 1993 s. 22; amended by No. 34 of 1999 s. 27.]

84ZH.Medical issues

(1)If permitted by section 145A to do so, a review officer may refer a question as to —

(a)the nature or extent of a disability;

(b)whether a disability is permanent or temporary; or

(c)a worker’s capacity for work,

for determination by a medical assessment panel.

(2)Without limiting subsection (1), that subsection applies to questions as to the loss of, or the permanent loss of the efficient use of, any of the parts or faculties of the body referred to in column 1 of Schedule 2, or to the degree of that loss, and as to the degree of disability assessed in accordance with section 93D(2).

[Section 84ZH inserted by No. 48 of 1993 s. 22; amended by No. 34 of 1999 s. 22 and 32(9).]

84ZI.Reasons for decisions

Where, within 14 days after the review officer makes a decision or order in the proceedings, a party to the proceedings requests the review officer to do so, the review officer is to give that party, in writing — 

(a)the officer’s findings of fact;

(b)the reasons for the officer’s decision; and

(c)information as to appeal rights that may be available to the parties under this Act.

[Section 84ZI inserted by No. 48 of 1993 s. 22.]

84ZJ.Interpreters

(1)Where a person who is involved in a review as a party or in any other capacity is not reasonably fluent in English, the person may communicate through an interpreter.

(2)In a review, a person may present any written submission or evidence in a language other than English if it is accompanied by a translation into English and a declaration on oath by the translator to the effect that the translation accurately reproduces in English the contents of the original document.

[Section 84ZJ inserted by No. 48 of 1993 s. 22.]

84ZK.Failure to attend

If a party to a dispute who has been required to attend before a review officer does not do so, the absence of the person does not preclude the making of any order that could be made if the person had attended.

[Section 84ZK inserted by No. 48 of 1993 s. 22.]

84ZL.Costs

(1)Each party to the proceedings bears the party’s own costs unless the review officer orders otherwise.

(2)An agreement is not to be made for a legal practitioner or other person to receive, for appearing for or acting on behalf of a person in the proceedings, any greater reward than is provided for — 

(a)in the case of a legal practitioner, by any legal costs determination (as defined in the Legal Practice Act 2003); or

(b)in the case of any other person, by the regulations.

(3)An agreement made contrary to this section is void.

[Section 84ZL inserted by No. 48 of 1993 s. 22; amended by No. 65 of 2003 s. 72(2).]

84ZM.Case may be referred to compensation magistrate’s court

Where a question of law arises in the proceedings or the review officer believes that it is appropriate to do so because of the complexity of issues, the officer may elect not to make an order and, in accordance with the regulations, refer the matter to a compensation magistrate’s court for determination.

[Section 84ZM inserted by No. 48 of 1993 s. 22; amended by No. 34 of 1999 s. 28.]

84ZN.Appeal

(1)Subject to this section, a decision or order of a review officer is not open to question or review in any court, and proceedings by or before a review officer may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court.

(2)A party to the proceedings who is dissatisfied with a decision or order of the review officer may, where a question of law is involved, appeal to a compensation magistrate’s court against the decision or order.

(3)An appeal under subsection (2) is to be made in accordance with the regulations within one month after the making of the decision or order concerned, but the court may, if satisfied that it is just and reasonable in the circumstances to do so, extend the period within which the appeal may be made.

(4)Without limiting any other powers of the court on dealing with the appeal, the court may, before determining the appeal, make an order that, until the appeal is determined —

(a)suspends the effect of the decision or order, with or without substituting any decision or order that the review officer could have made in the first instance; or

(b)varies the effect of the decision or order.

(5)The power given by subsection (4) to suspend or vary the effect of a decision or order includes the power to suspend or vary its effect as previously varied under that subsection.

[Section 84ZN inserted by No. 48 of 1993 s. 22; amended by No. 34 of 1999 s. 29.]

Division 4 — Determination by compensation magistrate’s court

[Heading inserted by No. 48 of 1993 s. 22.]

84ZO.Referred matters

On hearing a matter referred to it under section 84ZM, a compensation magistrate’s court has jurisdiction to make such orders as it thinks fit with regard to the matter and to the costs of and incidental to the hearing and determination of it.

[Section 84ZO inserted by No. 48 of 1993 s. 22.]

84ZP.Appeal

(1)On hearing an appeal made under section 84ZN, a compensation magistrate’s court may — 

(a)affirm, vary, or quash the decision or order appealed against, or substitute, and make in addition, any decision or order that should have been made in the first instance;

(b)make any further or other order, as to costs or otherwise, as it thinks fit.

(2)An order for costs on the ground that the appeal was successful is not to be made against a worker.

[Section 84ZP inserted by No. 48 of 1993 s. 22; amended by No. 34 of 1999 s. 30.]

84ZQ.Costs as between representative and client

(1)An agreement is not to be made for a legal practitioner or other person to receive, for appearing for or acting on behalf of a person in proceedings before a compensation magistrate’s court, any greater reward than is provided for — 

(a)in the case of a legal practitioner, by any legal costs determination (as defined in the Legal Practice Act 2003); or

(b)in the case of any other person, by the regulations.

(2)An agreement made contrary to this section is void.

[Section 84ZQ inserted by No. 48 of 1993 s. 22; amended by No. 65 of 2003 s. 72(2).]

84ZR.Medical issues

(1)If permitted by section 145A to do so, a compensation magistrate’s court may refer a question as to —

(a)the nature or extent of a disability;

(b)whether a disability is permanent or temporary; or

(c)a worker’s capacity for work,

for determination by a medical assessment panel.

(2)Without limiting subsection (1), that subsection applies to questions as to the permanent or other loss of the efficient use of any part or faculty of the body referred to in column 1 of the table set out in Schedule 2 and as to the degree of disability assessed in accordance with section 93D(2).

[Section 84ZR inserted by No. 48 of 1993 s. 22; amended by No. 34 of 1999 s. 22 and 32(10).]

84ZS.Time for application

An application under section 84ZT is to be made within 6 years from the time of the alleged contravention or failure to comply.

[Section 84ZS inserted by No. 48 of 1993 s. 22.]

84ZT.Enforcement of orders etc. upon conciliation or review

(1)Where a person fails to comply with an order made by a conciliation officer or review officer — 

(a)the Director; or

(b)a worker, a dependant of a worker, an insurer, an employer or any other person to whom the order applies,

may apply in the prescribed manner to a compensation magistrate’s court for the enforcement of the order.

(2)On the hearing of an application under subsection (1) the compensation magistrate’s court may, by order — 

(a)if a failure to comply is proved, issue a caution or impose such penalty as the compensation magistrate’s court considers appropriate but not exceeding $5 000 in the case of a body corporate and $2 000 in any other case; or

(b)dismiss the application,

and, subject to subsection (3), the order may in any case be with or without costs.

(3)In proceedings under this section costs are not to be given to any party to the proceedings for the services of any legal practitioner or agent of that party unless, in the opinion of the compensation magistrate’s court, the proceedings have been frivolously or vexatiously instituted or defended, as the case requires, by the other party.

(4)An order as to costs shall specify the name of the person liable to pay the costs and the name of the person to whom the costs are payable.

(5)Where in any proceedings brought under subsection (1) against an employer it appears to the compensation magistrate’s court that a worker employed by that employer has not been paid by that employer the amount which the worker was entitled to be paid under an order of a review officer, the compensation magistrate’s court is to, subject to subsection (6), order that employer to pay to that worker the amount by which the worker has been underpaid.

(6)An order may only be made under subsection (5) in respect of any amount relating to a period not being more than 6 years prior to the commencement of the proceedings.

(7)Unless otherwise prescribed the practice and procedure to be observed before a compensation magistrate’s court under this section are those observed in civil proceedings.

[Section 84ZT inserted by No. 48 of 1993 s. 22; amended by No. 34 of 1999 s. 31.]

Division 5 — Cases stated and appeals to Supreme Court

[Heading inserted by No. 48 of 1993 s. 22.]

84ZU.Magistrate may state case

(1)When a question of law arises in any proceedings before a compensation magistrate’s court under Division 4, the court may state a case for the decision of the Supreme Court on that question.

(2)A case may be stated under this section notwithstanding that an order, direction, or decision has been made or given by the compensation magistrate’s court.

[Section 84ZU inserted by No. 48 of 1993 s. 22.]

84ZV.Indemnity as to costs

(1)Where a compensation magistrate’s court has stated a case for the decision of the Supreme Court, the compensation magistrate’s court may in its absolute discretion indemnify any of the parties against the costs or part of the costs of the proceedings resulting from a case being stated.

(2)Any moneys payable to a party by reason of an indemnity under subsection (1) when certified by the magistrate’s court as payable are to be paid by the Commission from moneys standing to the credit of the General Fund.

[Section 84ZV inserted by No. 48 of 1993 s. 22; amended by No. 49 of 1996 s. 64.]

84ZW.Appeal

A party to proceedings before a compensation magistrate’s court under Division 4 may, by leave of the Supreme Court, appeal to the Supreme Court against a decision of the compensation magistrate’s court on a question of law.

[Section 84ZW inserted by No. 48 of 1993 s. 22.]

84ZX. Court of Appeal

If a case is stated or an appeal is made under this Division, it is to be heard and determined by the Court of Appeal.

[Section 84ZX inserted by No. 48 of 1993 s. 22; amended by No. 45 of 2004 s. 37.]

84ZY.Procedure and jurisdiction

(1)An appeal under this Division may be made in such manner and within such time as an appeal from a judgment or order of the Supreme Court or a Judge of the Supreme Court may be made to the Court of Appeal and in all respects the jurisdiction, powers and subject to Rules of Court the practice and procedure of the Court of Appeal in the appeal shall be the same as though the appeal were an appeal to the Court of Appeal from a judgment or order of the Supreme Court or a Judge of the Supreme Court.

(2)The Court of Appeal has jurisdiction to hear and determine the appeal accordingly and to make such orders as it thinks fit with regard to the appeal and to the costs of and incidental to the hearing and determination of it.

(3)The Court of Appeal has jurisdiction to consider and determine any case stated and to make such orders as it thinks fit with regard to that case and to the costs of and incidental to the consideration and determination of it.

[Section 84ZY inserted by No. 48 of 1993 s. 22; amended by No. 45 of 2004 s. 37.]

Division 6 — Enforcement of compensation magistrate’s court judgments

[Heading inserted by No. 59 of 2004 s. 131.]

84ZZ.Judgments, enforcement of

(1)In this section —

judgment includes an order, direction or decision.

(2)A person to whom money is to be paid under a judgment of a compensation magistrate’s court may enforce it by lodging a copy of it, certified by a clerk of the court, and an affidavit stating to what extent it has not been complied with, with a court of competent jurisdiction.

(3)If, or to the extent that, a judgment of a compensation magistrate’s court does not require the payment of money, a person entitled to the benefit of the judgment may enforce it by lodging a copy of it, certified by a clerk of the court, and an affidavit stating to what extent it has not been complied with, with the Magistrates Court.

(4)A judgment that is lodged with another court under subsection (2) or (3) is to be taken to be a judgment of the other court and may be enforced accordingly.

[Section 84ZZ inserted by No. 59 of 2004 s. 131.]

[84ZZA, 84ZZB.Repealed by No. 59 of 2004 s. 131.]

Part IV — Civil proceedings in addition to or independent of this Act

Division 1 — General

[Heading inserted by No. 48 of 1993 s. 4(1).]

85.Saving — motor vehicle cases

Nothing in this Part affects the operation of sections 29 and 29A of the Motor Vehicle (Third Party Insurance) Act 1943, and this Part shall be read subject to those sections of that Act.

86.Saving — independent liability

Except as expressly provided by this Act, nothing in this Act affects any liability that exists independently of this Act.

87.Costs between solicitor and client in common law actions

(1)This section applies to an action for damages independently of this Act if Division 2 applies to the awarding of damages in the action (whether or not an award of damages is affected).

(2)An agreement is not to be made for a legal practitioner to receive, for appearing for or acting on behalf of a person — 

(a)in an action to which this section applies; or

(b)in respect of an application for a declaration under section 11 of the Workers’ Compensation and Rehabilitation Amendment Act 1993,

any greater reward than is provided for by any legal costs determination (as defined in the Legal Practice Act 2003).

(3)An agreement is void — 

(a)if it is made contrary to this section; or

(b)if it would have been contrary to this section if it had been made after the commencement of section 4 of the Workers’ Compensation and Rehabilitation Amendment Act 1993.

[Section 87 inserted by No. 48 of 1993 s. 4(2); amended by No. 65 of 2003 s. 72(2).]

[88-90. Repealed by No. 48 of 1993 s. 4(2).]

91.Where action brought for injury for which compensation is payable under this Act

If an action is brought to recover damages independently of this Act, and it is determined in such action that the disability is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under this Act, the court in which the action is tried shall assess that compensation, or refer the assessment of the compensation to the Directorate, and shall deduct from that compensation all the costs which have been caused by the plaintiff bringing the action, instead of taking proceedings under this Act, and shall enter judgment accordingly.

[Section 91 amended by No. 48 of 1993 s. 28(1).]

92.Both damages and compensation not recoverable

Where in respect of a disability an action is brought by a worker for damages independently of this Act against his employer or against some other person (referred to in this section as the defendant) or against both of them — 

(a)if the court decides the action should succeed, then after damages have been ascertained but before judgment is entered for the worker in the action, the worker shall be given a reasonable opportunity to elect whether to have judgment or to discontinue the action;

(b)if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the employer only or against the employer and the defendant, there shall be deducted from the amount of the judgment and be paid to the employer a sum representing the amount (after apportionment in respect of any contributory negligence of the worker) actually recoverable by the worker by way of weekly or lump sum compensation, medical and other expenses paid pursuant to this Act, but where liability is apportioned between the employer and the defendant the defendant’s liability to pay to the worker shall be reduced accordingly;

(c)if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the defendant only or is settled by the acceptance of money paid into court by the defendant, the payments and expenses referred to in paragraph (b) shall be a first charge on the judgment or the amount of money paid into court and the defendant shall be bound to pay the amount of the compensation, and medical and other expenses to the employer and the judgment shall be pro tanto discharged by such payment, or the amount due under the charge shall be paid out of court to the employer or his authorised agent, as the case may be;

(d)if the action is discontinued the worker shall pay the costs of the employer or of the defendant or of each of them or such part of those costs as the court thinks fit;

(e)if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the employer or the defendant or both or is settled by the acceptance of money paid into court by the employer or the defendant or by both of them, the worker shall not commence or continue proceedings for, or in relation to, compensation under this Act in respect of the same disability;

(f)if a worker’s claim for damages against the employer or the defendant is settled by agreement otherwise than by a judgment, an acceptance of an offer to consent to judgment, or an acceptance of money paid into court — 

(i)the employer or the defendant shall file a memorandum of the terms of the settlement with the Directorate within 3 months of the date of its execution by the worker;

(ii)the worker shall not commence or continue a claim for compensation under this Act in respect of the same disability unless the Director disapproves of the settlement within 6 weeks of the agreement for settlement being filed with the Directorate;

(iii)the Director shall not disapprove of the agreement unless he is satisfied the agreement was induced by fraud or misrepresentation or that it would clearly be for the worker’s benefit to disapprove of it;

(iv)the Director if he disapproves of the settlement shall serve notice in writing of his disapproval on each of the parties to the settlement of his decision and of the reasons for his disapproval by pre‑paid post to the address of the party set out in the settlement or the last known address of a party, within 14 days of the making of his decision;

(g)where a claim for compensation is commenced or continued after the Director disapproves of a settlement referred to in paragraph (f), the amount recovered or recoverable under such settlement shall be brought into account in reduction of the worker’s entitlement to compensation;

(h)Part III Division 7 does not apply to an agreement for settlement referred to in this section.

[Section 92 amended by No. 48 of 1993 s. 28(1).]

93.Remedies against stranger

(1)Where the disability for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof but neither the employer nor any person for whose negligence the employer is legally responsible was negligent — 

(a)the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for such compensation, but shall not be entitled to recover both damages and compensation and shall bring to account in reduction of his entitlement to compensation the amount recovered by way of damages;

(b)the employer is entitled to be indemnified by the person whose negligence caused the disability to the worker (in this section called the defendant) to the full extent of the employer’s liability to pay compensation under this Act, whether or not the defendant has discharged his liability to pay damages to the worker by judgment or by settlement or otherwise.

(2)If there were — 

(a)negligence by the employer or by some person for whose negligence the employer is legally responsible which caused or contributed to the worker’s disability, the extent of the indemnity of the employer by the defendant is reduced by the proportion that the employer’s negligence and that of any person for whose negligence the employer is responsible bears to 100%; or

(b)negligence by the worker which caused or contributed to the worker’s disability, the extent of the indemnity of the employer by the defendant is reduced by the proportion that the worker’s negligence bears to 100%.

(3)All questions as to the right or amount of any such indemnity may, in default of agreement between the employer and the defendant, at the instance of the employer, be determined by the Directorate in any action brought by the worker before the Directorate.

(4)If the defendant has paid the whole or any part of the damages to the worker in respect of the disability caused or contributed to by the defendant and the defendant is required to and has indemnified the employer for the payment of any compensation paid to the worker in respect of the same disability, the defendant may sue and recover from the worker the amount so paid to the employer not exceeding the amount of damages paid to the worker by the defendant.

(5)If the worker has been successful in proceedings to recover damages against the defendant and does not recover the full amount of such damages and any portion of the compensation under this Act paid by the employer to the worker has not been refunded to the employer out of the damages, then the employer may, at his own expense and in the name of the worker and upon giving the worker an indemnity against all costs and expenses, sue and recover from the defendant the amount of any balance of such damages then remaining unpaid, but any damages so recovered from the defendant in excess of the amount of compensation paid to the worker under this Act shall be payable to and received by the worker.

[Section 93 amended by No. 48 of 1993 s. 28(1).]

Division 1a — Choice of law

[Heading inserted by No. 36 of 2004 s. 10.]

93AA.The applicable substantive law for work disability claims

(1)If there is an entitlement to compensation under the statutory workers’ compensation scheme of a State in respect of a disability to a worker (whether or not compensation has been paid), the substantive law of that State is the substantive law that governs —

(a)whether or not a claim for damages in respect of the disability can be made; and

(b)if it can be made, the determination of the claim.

(2)This Division does not apply if compensation is payable in respect of the disability under the statutory workers’ compensation scheme of more than one State.

(3)For the purposes of this section, compensation is considered to be payable under a statutory workers’ compensation scheme of a State in respect of a disability if compensation in respect of it —

(a)would have been payable but for a provision of the scheme that excludes the worker’s right to compensation because the disability is attributable to any conduct or failure of the worker that is specified in that provision; or

(b)would have been payable if a claim for that compensation had been duly made, and (where applicable) an election to claim that compensation (instead of damages) had been duly made.

(4)A reference in this section to compensation payable in respect of a disability does not include a reference to compensation payable on the basis of the provisional acceptance of liability.

[Section 93AA inserted by No. 36 of 2004 s. 10.]

93AB.Claims to which Division applies

(1)This Division applies to a claim for damages or recovery of contribution brought against a worker’s employer in respect of a disability that was caused by —

(a)the negligence or other tort (including breach of statutory duty) of the worker’s employer; or

(b)a breach of contract by the worker’s employer.

(2)This Division also applies to a claim for damages or recovery of contribution brought against a person other than a worker’s employer in respect of a disability if —

(a)the worker’s employment is connected with this State; and

(b)the negligence or other tort or the breach of contract on which the claim is founded occurred in this State.

(3)Subsection (1)(a) and subsection (2) apply even if damages resulting from the negligence or other tort are claimed in an action for breach of contract or other action.

(4)A reference in this Division to a worker’s employer includes a reference to —

(a)a person who is vicariously liable for the acts of the employer; and

(b)a person for whose acts the employer is vicariously liable.

[Section 93AB inserted by No. 36 of 2004 s. 10.]

93AC.What constitutes disability and employment

For the purposes of this Division —

(a)disability, employer and worker include anything that is within the scope of a corresponding term in the statutory workers’ compensation scheme of another State; and

(b)the determination of what constitutes employment or whether or not a person is a worker or a worker’s employer is to be made on the basis that those concepts include anything that is within the scope of a corresponding concept in the statutory workers’ compensation scheme of another State.

[Section 93AC inserted by No. 36 of 2004 s. 10.]

93AD.Claim in respect of death included

For the purposes of this Division, a claim for damages in respect of death resulting from a disability is to be considered as a claim for damages in respect of the disability.

[Section 93AD inserted by No. 36 of 2004 s. 10.]

93AE.Meaning of “substantive law”

In this Division —

a State’s legislation about damages for a work related disability means —

(a)for this State — Division 2;

(b)for another State — any provisions of a law of that State that is declared by the regulations to be the State’s legislation about damages for a work related disability;

substantive law includes —

(a)a law that establishes, modifies, or extinguishes a cause of action or a defence to a cause of action;

(b)a law prescribing the time within which an action must be brought (including a law providing for the extension or abridgment of that time);

(c)a law that provides for the limitation or exclusion of liability or the barring of a right of action if a proceeding on, or arbitration of, a claim is not commenced within a particular time limit;

(d)a law that limits the kinds of injury, loss or damage for which damages or compensation may be recovered;

(e)a law that precludes the recovery of damages or compensation or limits the amount of damages or compensation that can be recovered;

(f)a law expressed as a presumption, or rule of evidence, that affects substantive rights; and

(g)a provision of a State’s legislation about damages for a work related disability, whether or not it would be otherwise regarded as procedural in nature,

but does not include a law prescribing rules for choice of law.

[Section 93AE inserted by No. 36 of 2004 s. 10.]

93AF.Availability of action in another State not relevant

(1)It makes no difference for the purposes of this Division that, under the substantive law of another State —

(a)the nature of the circumstances is such that they would not have given rise to a cause of action had they occurred in that State; or

(b)the circumstances on which the claim is based do not give rise to a cause of action.

(2)In subsection (1) —

another State means a State other than the State with which the worker’s employment is connected.

[Section 93AF inserted by No. 36 of 2004 s. 10.]

Division 2 — Constraints on awards of common law damages

[Heading inserted by No. 48 of 1993 s. 4(3).]

93A.Definitions for this Division

In this Division — 

AMA Guides means the edition of the Assessment of Disability Guide published by the Western Australian Branch of the Australian Medical Association Incorporated which is prescribed in the regulations;

damages does not include — 

(a)any sum required or authorised to be paid under an award or industrial agreement within the meaning of the Industrial Relations Act 1979;

(b)any sum payable under a superannuation scheme or any life or other insurance policy; or

(c)any amount paid in respect of costs incurred in connection with legal proceedings;

[Section 93A inserted by No. 48 of 1993 s. 4(3); amended by No. 34 of 1999 s. 32(3).]

93B.Application of this Division

(1)This Division applies to the awarding of damages against a worker’s employer independently of this Act in respect of a disability suffered by a worker if — 

(a)the disability was caused by the negligence or other tort of the worker’s employer; and

(b)compensation has been paid or is payable in respect of the disability under this Act, or would have been paid or be payable but for section 22.

(2)This Division applies even if the damages resulting from the negligence or other tort of the worker’s employer are sought to be recovered in an action for breach of contract or other action.

(3)This Division does not apply to the awarding of — 

(a)damages to which the Motor Vehicle (Third Party Insurance) Act 1943 applies;

(b)exemplary or punitive damages; or

(c)damages of a class that is excluded by the regulations from the application of this Division.

(3a)This Division does not apply to the awarding of damages if the disability results in the death of the worker.

(4)A reference in this section to the worker’s employer includes a reference to a person for whose acts the employer is vicariously liable.

[Section 93B inserted by No. 48 of 1993 s. 4(3); amended by No. 34 of 1999 s. 32(4).]

93C.Limit on powers of courts

If this Division applies a court is not to award damages to a person contrary to this Division 8, 9.

[Section 93C inserted by No. 48 of 1993 s. 4(3).]

93D.Assessment of disability

(1)In this section —

relevant level, in relation to a question as to the degree of disability of the worker, means —

(a)if the question arises for the purposes of section 93E(3)(a), (9) or (12), a degree of disability of 30%; or

(b)if the question arises for the purposes of section 93E(4), a degree of disability of 16%.

(2)For the purposes of section 93E, the degree of disability of the worker is to be assessed —

(a)so far as Schedule 2 provides for such a disability, as a percentage equal to —

(i)if only one item of that Schedule applies to the disability, the percentage of the prescribed amount provided for by that item, as read with section 25; or

(ii)if 2 or more items of that Schedule apply to the disability, the sum of the percentages of the prescribed amount provided for by those items, as read with section 25;

(b)to the extent, if any, that paragraph (a) does not apply, as the degree of permanent impairment assessed in accordance with the AMA Guides;

(c)to the extent, if any, that neither paragraph (a) nor (b) applies, in accordance with the regulations,

or if more than one of paragraphs (a), (b) and (c) applies, as the cumulative sum of the percentages assessed in accordance with those paragraphs.

(3)For the purposes of section 93E(4) only, if item 36A of Schedule 2 applies to the disability, subsection (2)(a) applies as if the percentage of the prescribed amount provided for by that item were 100% instead of 60%.

(4)If section 25 applies, the percentage under subsection (2)(a) is calculated in accordance with the formula —

Where —

PD is the percentage of the diminution of full efficient use.

TD is the relevant percentage set out in Column 2 of Schedule 2.

Example 1

A worker loses 40% of the full efficient use of one eye. The percentage under subsection (2)(a) is —

Example 2

A worker loses the little finger of the left hand, 30% of the full efficient use of one eye and 10% of the full efficient use of the right arm below the elbow. The percentage under subsection (2)(a) is —

Example 3

A worker loses 10% of the full efficient use of the back (including thoracic and lumbar spine) and 15% of the full efficient use of the neck (including cervical spine). The percentage under subsection (2)(a) (for the purposes of section 93E(4) only) is —

(5)If the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level, the worker may, subject to subsection (6), refer the question to the Director.

(6)A question can only be referred under subsection (5) if the worker produces to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner’s opinion, the degree of disability is not less than the relevant level.

(7)As soon as practicable after receiving a referral under subsection (5) the Director is to notify the employer in accordance with the regulations.

(8)If within 21 days after being notified under subsection (7) the employer notifies the Director in accordance with the regulations that the employer considers that the degree of disability is less than the relevant level, a dispute arises for the purposes of Part IIIA.

(9)The Director is to consider the dispute in consultation with the parties.

(10)Except in a case to which subsection (11) applies, if the dispute is not resolved by agreement the Director is to refer the question for resolution under the provisions of Part IIIA (other than Division 2).

(11)If the dispute relates to a disability mentioned in section 33, 34 or 35, the dispute is to be referred to a medical panel for determination as described in section 36 and so far as applicable this Act applies in relation to the reference as if it were a reference under section 36 except that the only question to be considered and determined on the reference is the question that was referred.

(12)Unless notification is given by the employer under subsection (8), the employer is to be regarded as having agreed that the degree of disability is not less than the relevant level.

[Section 93D inserted by No. 34 of 1999 s. 32(5).]

93E.Restrictions on awarding of damages and payment of compensation

(1)In this section —

agreed means agreed between the worker and the employer, whether under section 93D(12) or otherwise;

degree of disability means the degree of disability of the worker assessed in accordance with section 93D(2);

determined means determined or decided on a reference under section 93D(10) or (11);

termination day means the day that is 6 months after the day on which weekly payments commenced.

(2)Weekly payments of compensation ordered by a dispute resolution body to commence are to be regarded for the purposes of this section as commencing or having commenced on —

(a)the first day of the period in relation to which weekly payments are ordered to be made; or

(b)the day that is 5 months (or such shorter period as is prescribed) before the day on which the order is made,

whichever is later.

(3)Damages can only be awarded if —

(a)it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or

(b)the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.

(4)For the purposes of subsection (3)(b) the worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations.

(5)Subject to subsections (6), (6a), and (7), if weekly payments of compensation in respect of the disability have commenced an election cannot be made under subsection (3)(b) after the termination day.

(6)Despite subsection (5), if —

(a)medical evidence complying with section 93D(6) was produced to the Director not less than 21 days before the termination day; and

(b)although a question of whether the degree of disability is not less than 16% was referred to the Director under section 93D(5) not less than 21 days before the termination day, at the end of the seventh day before the termination day the Director has not given the worker notice in writing that an agreement or determination of the question has been recorded,

an election can be made under subsection (3)(b) within 14 days after the Director gives the worker notice in writing that an agreement or determination of the question has been recorded.

(6a)Despite subsection (5) and even though subsection (6) does not apply, if the Director gives the worker notice under section 93EA(5)(b)(i) or 93EB(5)(b)(i) that this subsection applies an election can be made under subsection (3)(b) within 14 days after the Director subsequently gives the worker notice in writing that an agreement or determination of the question has been recorded.

(7)Despite subsection (5), the Director may, in such circumstances as are set out in regulations, extend the period within which an election can be made under subsection (3)(b) until a day (not being a day that is more than 6 months after the termination day) to be fixed by the Director by notice in writing to the worker.

(8)Subject to subsections (9) and (11), if an election has been made under subsection (3)(b) compensation under this Act is not payable in respect of the disability, or any recurrence, aggravation or acceleration of it, in relation to any period after the day on which the election is registered or any expenses incurred during such a period.

(9)Subsection (8) ceases to apply if, after the election is made, it is agreed or determined that the degree of disability is 30% or more and that agreement or determination is recorded in accordance with the regulations.

(10)Subsection (9) relates only to the degree of the original disability, and any recurrence, aggravation or acceleration of it is not to be taken into account.

(11)If an agreement or determination under subsection (9) is recorded, the worker may apply for any compensation which, but for subsection (8), would have been payable under this Act in relation to a relevant period or expenses incurred during a relevant period.

(12)In subsection (11) —

relevant period means any period —

(a)which is after the day on which the election is registered and before the agreement or determination under subsection (9) is recorded; and

(b)during which the degree of disability is agreed or determined to have been not less than 30%.

(13)If the liability for an incapacity resulting from the disability has been redeemed under section 67, damages are not to be awarded in respect of the disability.

[Section 93E inserted by No. 34 of 1999 s. 32(5); amended by No. 44 of 2000 s. 4; No. 35 of 2004 s. 9.]

93EA.Referring questions with fresh evidence in particular cases

(1)Unless it does not apply because of subsection (2), subsection (3) applies if —

(a)on or before 30 September 2001, a worker —

(i)sought to refer a question to the Director under section 93D(5); and

(ii)in order to satisfy section 93D(6), produced to the Director anything that, even though it may not have constituted evidence of the kind required by that subsection, was accepted by the Director as evidence of that kind;

and

(b)the Director treated the question as having been referred under section 93D(5), after which, for a reason based on a failure to satisfy the requirements of section 93D(6) for a referral under section 93D(5) —

(i)a review officer did not deal with the substance of the question; or

(ii)a court set aside or quashed a decision of a review officer that dealt with the substance of the question.

(2)If the question is whether the worker’s degree of disability is not less than 16%, subsection (3) does not apply unless the production of what was produced as referred to in subsection (1)(a)(ii) and the purported referral of the question both occurred —

(a)not less than 21 days before the termination day; or

(b)before a day fixed under section 93E(7) by the Director.

(3)If this subsection applies, the worker may, within the time limited by subsection (4)(b) and otherwise in accordance with subsection (4), refer to the Director under section 93D(5) the same question as is mentioned in subsection (1)(a)(i), relating to the same disability and only that disability.

(4)A question can only be referred under subsection (3) if —

(a)the referral is made in writing in a form specified in the regulations stating that the worker is also acting under subsection (3);

(b)the referral is made —

(i)within the period of 3 months commencing after the day on which section 10 of the Workers’ Compensation (Common Law Proceedings) Act 2004 comes into operation (called the commencement day in subparagraph (ii)); or

(ii)if subsection (1)(b)(ii) applies and the decision is set aside or quashed after the commencement day, within the period of 3 months commencing after the day on which the decision is set aside or quashed;

and

(c)when referring the question to the Director, the worker produces to the Director evidence relating to the disability that complies with section 93D(6), or satisfies the Director that complying evidence has already been produced to the Director.

(5)If a worker seeks to make a referral under section 93D(5) stating that it is also made under subsection (3) of this section, the Director is required, as soon as practicable, to notify the worker and the employer, in accordance with the regulations —

(a)whether or not the Director is of the opinion that evidence complying with section 93D(6) has been produced and in all other respects the referral is properly made; and

(b)if the Director —

(i)is of that opinion, that the referral is accepted and section 93E(6a), if relevant, and section 93EC apply;

(ii)is not of that opinion, that the referral sought to be made by the worker is not accepted.

[Section 93EA inserted by No. 35 of 2004 s. 10.]

93EB.Referring questions in certain other cases

(1)Unless it does not apply because of subsection (2), subsection (3) applies if —

(a)before the coming into operation of section 10 of the Workers’ Compensation (Common Law Proceedings) Act 2004, a worker sought to refer a question to the Director under section 93D(5);

(b)on or after 4 December 2003, on the basis that Part IV Division 2 as in force before it was amended by section 32 of the Workers’ Compensation and Rehabilitation Amendment Act 1999 applied to proceedings for the awarding of the damages concerned 

(i)a review officer did not deal with the substance of the question; or

(ii)a court set aside or quashed a decision of a review officer that dealt with the substance of the question;

and

(c)after the coming into operation of section 10 of the Workers’ Compensation (Common Law Proceedings) Act 2004, section 93D(5) applies and the worker wishes to refer the question to the Director under that section.

(2)If the question is whether the worker’s degree of disability is not less than 16%, subsection (3) does not apply unless the purported referral of the question occurred —

(a)not less than 21 days before the termination day; or

(b)before a day fixed under section 93E(7) by the Director.

(3)If this subsection applies, the worker may, within the time limited by subsection (4)(b) and otherwise in accordance with subsection (4), refer to the Director under section 93D(5) the same question as is mentioned in subsection (1)(a), relating to the same disability and only that disability.

(4)A question can only be referred under subsection (3) if —

(a)the referral is made in writing in a form specified in the regulations stating that the worker is also acting under subsection (3);

(b)the referral is made —

(i)within the period of 3 months commencing after the day on which section 10 of the Workers’ Compensation (Common Law Proceedings) Act 2004 comes into operation (called the commencement day in subparagraph (ii)); or

(ii)if subsection (1)(b)(ii) applies and the decision is set aside or quashed after the commencement day, within the period of 3 months commencing after the day on which the decision is set aside or quashed;

and

(c)when referring the question to the Director, the worker produces to the Director evidence relating to the disability that complies with section 93D(6), or satisfies the Director that complying evidence has already been produced to the Director.

(5)If a worker seeks to make a referral under section 93D(5) stating that it is also made under subsection (3) of this section, the Director is required, as soon as practicable, to notify the worker and the employer, in accordance with the regulations —

(a)whether or not the Director is of the opinion that evidence complying with section 93D(6) has been produced and in all other respects the referral is properly made; and

(b)if the Director —

(i)is of that opinion, that the referral is accepted and section 93E(6a), if relevant, and section 93EC apply;

(ii)is not of that opinion, that the referral sought to be made by the worker is not accepted.

[Section 93EB inserted by No. 35 of 2004 s. 10.]

93EC.Extended time for commencing proceedings

If —

(a)under section 93EA(5)(b)(i) or 93EB(5)(b)(i), the Director notifies a worker that the referral of a question relating to a disability is accepted and that this section applies; and

(b)the time limited by any written law for the commencement of an action seeking damages in respect of the disability —

(i)has elapsed before the day on which the Director notifies the worker (the notification day); or

(ii)is due to elapse on the notification day or before the expiry of a period of 2 years after the notification day,

an action seeking damages in respect of the disability may, despite that written law, be commenced at any time before the expiry of a period of 2 years after the notification day.

[Section 93EC inserted by No. 35 of 2004 s. 10.]

93F.Restrictions on awarding and amount of damages if disability less than 30%

(1)Unless an agreement or determination that the degree of disability of the worker is not less than 30% is recorded for the purposes of section 93E —

(a)the amount of damages to be awarded is to be a proportion, determined according to the severity of the disability, of the maximum amount that may be awarded; and

(b)the maximum amount of damages that may be awarded is Amount A, but the maximum amount may be awarded only in a most extreme case of a disability of less than 30% in degree.

(2)Subsection (1) has effect in respect of the amount of a judgment before the operation of section 92(b).

(3)No entitlement to damages is created by subsection (1) and that subsection is subject to any other law that prevents or limits the awarding of damages.

(4)If —

(a)section 93E(3) does not allow damages to be awarded in respect of the disability; or

(b)damages in respect of the disability have been awarded in accordance with subsection (1),

the employer is not liable to make any contribution under the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (the Contribution Act) in respect of damages awarded against another person in relation to the disability.

(5)If section 93E(3)(b) allows damages to be awarded in respect of the disability —

(a)the contributions that the employer may be liable to make under the Contribution Act in respect of damages awarded against other persons in relation to the disability are not to exceed the damages that could have been awarded in accordance with subsection (1); and

(b)if the employer has made or been directed to make a contribution under the Contribution Act in respect of damages awarded against another person in relation to the disability, the amount of damages that may be awarded in accordance with subsection (1) is reduced by the amount of that contribution.

(6)This section applies regardless of whether the damages are awarded against one or several employers.

(7)An issue as to the amount of damages that may be awarded, is to be determined by reference to Amount A as in effect on the date on which the determination is made.

(8)In this section —

Amount A means —

(a)in relation to the financial year ending on 30 June 2000, $250 000;

(b)in relation to any subsequent financial year, the nearest whole number of dollars to —

(i)the amount obtained by varying Amount A for the preceding financial year by the percentage by which the amount that the Australian Statistician published as the Wages Cost Index, ordinary time hourly rates of pay (excluding bonuses) for Western Australia (the WCI) varied between the second‑last December quarter before the financial year commenced and the last December quarter before the financial year commenced; or

(ii)if the calculation under subparagraph (i) cannot be performed in relation to a financial year because the WCI for a relevant quarter was not published, the amount obtained by varying Amount A for the preceding financial year in accordance with the regulations,

with an amount that is 50 cents more than a whole number of dollars being rounded off to the next highest whole number of dollars.

[Section 93F inserted by No. 34 of 1999 s. 32(5).]

93G.Regulations

Regulations may provide for —

(a)the notification to be given to workers of the effect of the provisions of this Division;

(b)the form and lodgment of elections under section 93E(3)(b);

(c)the registration by the Director of elections under section 93E(3)(b) if an agreement or determination for the purposes of section 93E(4) has been recorded, and the power of the Director to refuse to register an election if not satisfied that the worker has been properly advised of the consequences of the election;

(d)the recording by the Director of an agreement or determination under section 93E as to the degree of disability of a worker;

(e)the way in which applications under section 93E(11) are to be made and dealt with.

[Section 93G inserted by No. 34 of 1999 s. 32(5).]

Part V  WorkCover Western Australia Authority

[Heading inserted by No. 42 of 2004 s. 80.]

Division 1 — Constitution, purposes, and powers

94. WorkCover Western Australia Authority

(1)When section 81(1) of the Workers’ Compensation Reform Act 2004 comes into operation, the name of the body corporate that was previously called the “Workers’ Compensation and Rehabilitation Commission” becomes the “WorkCover Western Australia Authority”, but the corporate identity of the body corporate and its rights and obligations are not affected by the change.

(2)The WorkCover Western Australia Authority — 

(a)is a body corporate with perpetual succession and a common seal;

(b)may acquire, hold, and dispose of real and personal property;

(c)may sue and be sued in its corporate name; and

(d)may, subject to the directions of the Minister, exercise and discharge the powers, authorities, functions, and duties conferred or imposed upon it by this Act.

(2a)The WorkCover Western Australia Authority is an agent of the State and has the status, immunities, and privileges of the State.

(2b)The WorkCover Western Australia Authority is to have a governing body that, in the name of the WorkCover Western Australia Authority, is to perform the functions of the WorkCover Western Australia Authority under this Act or any other written law.

(3)Notwithstanding subsection (1), the WorkCover Western Australia Authority may use and operate under the name “WorkCover Western Australia”, which it may abbreviate as “WorkCover WA” or “WorkCover”.

(4)A person other than WorkCover WA who uses or operates under the name mentioned in subsection (1), or any name that is so similar that it is likely to be misunderstood as referring to WorkCover WA, commits an offence.

[Section 94 amended by No. 86 of 1986 s. 8; No. 48 of 1993 s. 40; No. 42 of 2004 s. 81 and 150.]

95.WorkCover WA’s governing body

(1)WorkCover WA’s governing body is to consist of — 

(a)one person appointed by the Governor on the recommendation of the Minister as a member and Chairman of WorkCover WA’s governing body and referred to as a nominee member;

(b)the chief executive officer of WorkCover WA and the chief executive officer of the department of the Public Service of the State principally assisting the Minister charged with the administration of the Occupational Safety and Health Act 1984; and

(c)4 persons appointed by the Governor, on the recommendation of the Minister, as members of WorkCover WA’s governing body and referred to as nominee members of whom — 

(i)one is a person experienced in employers’ interests;

(ii)one is a person experienced in workers’ interests;

(iii)one is a person experienced in insurance matters; and

(iv)one is a person experienced in accounting and financial management.

(2)The person appointed as Chairman of WorkCover WA’s governing body is not to be a public service officer within the meaning of the Public Sector Management Act 1994.

(3)Before making a recommendation for the purposes of subsection (1)(c)(i), the Minister may, in writing, request the body known as the Chamber of Commerce and Industry of Western Australia (Inc) to submit the name of a person, or the names of such number of persons as is specified in the request, who, or each of whom, has the required experience and is willing to act as a member under subsection (1)(c)(i), and before making a recommendation for the purposes of subsection (1)(c)(ii), the Minister may, in writing, request the body known as UnionsWA (formerly known as the Trades and Labor Council of Western Australia) to submit the name of a person, or the names of such number of persons as is specified in the request, who, or each of whom, has the required experience and is willing to act as a member under subsection (1)(c)(ii).

(4)Before making a recommendation for the purposes of subsection (1)(c)(iii) or (iv), the Minister may make enquiries to find a person who has the required experience and is willing to act as a member under that provision.

(5)The Governor may, on the recommendation of the Minister, appoint a person who is not a public service officer within the meaning of the Public Sector Management Act 1994 as deputy of the member who is the Chairman of WorkCover WA’s governing body.

(6)In the absence, for any reason, of the Chairman and a person appointed to act in the place and during the absence of the Chairman from a meeting of WorkCover WA’s governing body, the Chairman’s appointed deputy may attend the meeting and while so attending has all the powers, authorities, functions, and duties of the Chairman.

[Section 95 inserted by No. 42 of 2004 s. 82.]

96.Term of office

(1)Subject to this Act, a nominee member holds office for such period not exceeding 3 years as is specified in the instrument of his appointment but is eligible for reappointment.

(2)The Minister on such terms as he thinks fit may grant leave of absence to a nominee member.

(3)A nominee member may resign his office by writing signed by him and delivered to the Minister but the resignation does not have effect until accepted by the Minister.

(4)The Governor may terminate the appointment of a nominee member — 

(a)for mental or physical incapacity to carry out duties as a member in a satisfactory manner, for inefficiency, or for misbehaviour; or

(b)for other good cause, whether the events or circumstances giving rise to that good cause occurred before, on, or after the date on which the appointment took effect.

(5)If a nominee member — 

(a)is an undischarged bankrupt or a person whose property is subject to an order or arrangement under the laws relating to bankruptcy;

(b)absents himself except on leave granted by the Minister from 3 consecutive meetings of WorkCover WA’s governing body;

[(c)deleted]

(d)resigns and his resignation is accepted; or

(e)has his appointment terminated pursuant to subsection (4),

the office of that nominee member becomes vacant.

(6)Where the office of a nominee member becomes vacant otherwise than by effluxion of time, the Governor may, on the recommendation of the Minister, appoint to the vacant office for the unexpired part of the term of the office a person who is eligible for appointment to that office and section 95(3) or (4), as the case requires, applies in respect of such a recommendation.

[Section 96 amended by No. 42 of 2004 s. 83 and 151.]

97.Meetings

(1)WorkCover WA’s governing body shall hold such meetings at such times and places as are necessary to enable it to exercise and discharge the powers, authorities, functions, and duties conferred or imposed under this Act and the Minister may at any time require the Chairman to convene a meeting of WorkCover WA’s governing body to consider such matters as the Minister specifies.

(2)The Chairman is to preside at all meetings of WorkCover WA’s governing body at which he is present and in his and his deputy’s absence the members present may appoint one of their number to preside.

(3)At a meeting of WorkCover WA’s governing body 4 members constitute a quorum.

(4)Any question arising at a meeting is to be decided by a majority of the members present and voting.

(5)The member presiding at a meeting has a deliberative vote and in the event of an equality of votes also has a casting vote.

(5a)Division 1AA is about a member of WorkCover WA’s governing body having a material personal interest in a matter being considered or about to be considered by the governing body.

(6)WorkCover WA is to cause accurate minutes to be kept of proceedings at its governing body’s meetings.

(7)To the extent that it is not prescribed WorkCover WA’s governing body may determine its own procedure.

[Section 97 amended by No. 42 of 2004 s. 84, 150 and 151.]

98.Defects not to invalidate proceedings

An act, proceeding, or determination of WorkCover WA is not invalid on the ground only of a vacancy in the office of a member of its governing body or of any defect in the appointment of a member or his deputy.

[Section 98 amended by No. 42 of 2004 s. 85 and 150.]

99.Conditions of appointment

(1)A nominee member is not required to devote the whole of his time to the duties of his office.

(2)A member other than one who is in the Public Service is to be paid such fees and allowances as may be fixed by the Minister on the recommendation of the Minister for Public Sector Management.

[Section 99 amended by No. 86 of 1986 s. 5; No. 42 of 2004 s. 86.]

100.Functions of WorkCover WA

The functions of WorkCover WA are to administer this Act and without limiting the generality of the foregoing — 

(a)to control and administer the General Fund and the Trust Fund;

(b)where necessary or desirable, to participate in research into the causes, incidence, and methods of prevention of accidents, injuries, losses of functions, and diseases in respect of which compensation may be payable under this Act;

(c)where necessary or desirable, to assist in encouraging the prevention or minimizing of accidents, injuries, losses of functions, and diseases in respect of which compensation may be payable under this Act;

(d)to make available upon request to employers such services or other assistance as it considers appropriate to facilitate the arranging of rehabilitation and to act as a rehabilitation provider;

(da)to promote the rehabilitation of workers suffering a disability in respect of which compensation is or may be payable under this Act and to disseminate to workers and others information concerning rehabilitation;

(e)to coordinate arrangements generally to secure the care, supervision, and assistance of workers suffering injury, loss of function, or disease in respect of which compensation is or may be payable under this Act;

(f)to obtain from all insurers and self‑insurers information and returns enabling WorkCover WA to compile and record such statistics, records, and reports as it considers desirable for the better administration of this Act;

(fa)to keep under review the sufficiency of the information provided to WorkCover WA by insurers and self‑insurers, and whether or not criteria developed by WorkCover WA for assessing the performance of insurers and self‑insurers are being met;

(g)where necessary or desirable, to assist in investigating all matters relating to accidents, injuries, losses of functions, or diseases in respect of which compensation is or may be payable under this Act, to study the causes and various methods of treatment and the results of treatment of such accidents, injuries, losses of functions, and diseases;

(h)formulating recommendations and preparing estimates for submission to Parliament of the cost of providing facilities for rehabilitation and re‑employment of workers who have sustained permanent or temporary disablement from a compensable disability so as to minimize or remove any handicap suffered by the worker;

(i)to provide support services to any medical panel established under section 36 and to any medical assessment panel;

(j)to collect such statistics, records, reports, and other information as it may require to enable it to perform its obligations under section 151(a), and ensure that its functions under Part VIII are performed efficiently; and

(k)to advise the Minister on —

(i)matters to do with insurance that is required by this Act;

(ii)WorkCover WA’s functions under this Act;

(iii)the policy to be followed in the State with regard to workers’ compensation; and

(iv)any other matter referred by the Minister to WorkCover WA for its advice.

[Section 100 amended by No. 96 of 1990 s. 21; No. 48 of 1993 s. 28(1); No. 42 of 2004 s. 87(8) and 150.]

100A.Advisory committees

(1)WorkCover WA may at any time and when so requested by the Minister shall appoint advisory committees to assist it in the performance of its functions and duties.

(2)Subject to this section, an advisory committee shall consist of such number of persons as are appointed by WorkCover WA and at least one of them is to be a member of WorkCover WA’s governing body.

(3)The member of an advisory committee who is a member of WorkCover WA’s governing body or, if there are 2 or more of them, whichever of them is specified in their appointment as the person who is to preside, is to preside at meetings of the committee but, subject to the direction of WorkCover WA, an advisory committee may otherwise determine its own procedures.

(4)The members of advisory committees are entitled to be paid such fees and allowances as may be determined by the Minister on the recommendation of the Minister for Public Sector Management.

(5)The fees and allowances mentioned in subsection (4) shall be paid by WorkCover WA from moneys standing to the credit of the General Fund.

(6)In appointing persons to be members of advisory committees under this section WorkCover WA shall, as far as is practicable, appoint persons experienced in employers’ interests, persons experienced in workers’ interests, persons with experience relevant to the kinds of matters to be considered by the committee concerned, and such other persons as WorkCover WA considers appropriate.

[Section 100A inserted by No. 96 of 1990 s. 22; amended by No. 49 of 1996 s. 64; No. 42 of 2004 s. 88(1)‑(4) and 150.]

100B.Disclosure of information

(1)If the chief executive officer of the department principally assisting the Minister in the administration of the Occupational Safety and Health Act 1984 makes a written request to WorkCover WA to disclose information or data (including information and data about accidents, injuries and diseases) relevant to occupational safety and health that is in the possession of WorkCover WA, WorkCover WA is to comply with the request.

(2)This section has effect despite any other provision of this Act.

[Section 100B inserted by No. 42 of 2004 s. 89.]

101.Powers

WorkCover WA may do all things that are necessary, expedient, or desirable to be done for or in connection with the performance of its functions and without limiting the generality of the foregoing or the powers expressly conferred elsewhere in this Act WorkCover WA has power — 

(a)subject to section 102, to perform any of its functions by its officers or to provide facilities for others to do things to further the performance of any function or to arrange with others to provide facilities and to do any things to further the performance of any function and for any of those purposes to pay fees and allowances and to contribute towards expenses;

(aa)to charge for the provision of any service that it makes available such fees as it determines;

(b)to publish such information and findings as in the opinion of WorkCover WA would further the performance of its functions;

(c)with the written approval of the Treasurer, to invest moneys from the General Fund in such investments or securities, and subject to such conditions, as are specified in the instruments of approval;

(ca)to purchase, sell, lease, take on lease, mortgage, exchange or otherwise acquire, deal in or dispose of real and personal property;

(cb)to improve, develop or alter real property;

(d)to institute and maintain proceedings in the name of the WorkCover Western Australia Authority for any alleged breach of this Act; and

(e)to determine whether an insurer should be permitted to cancel a policy of insurance and, if so, upon what terms and, in any event, upon the term that the cancellation be effective as between the parties to the policy, irrespective of the terms of the policy and whether or not the policy was effected prior to the coming into operation of this Division.

[Section 101 amended by No. 104 of 1984 s. 4; No. 86 of 1986 s. 5; No. 96 of 1990 s. 23; No. 34 of 1999 s. 34; No. 42 of 2004 s. 90 and 150.]

101AA.Delegation by WorkCover WA

(1)WorkCover WA may delegate to the chief executive officer or another officer of WorkCover WA or to any other member, or any group of members, of WorkCover WA’s governing body any power or duty of WorkCover WA under another provision of this Act except if it is under Part VIII.

(2)The delegation must be in writing executed by WorkCover WA.

(3)A person to whom a power or duty is delegated under this section cannot delegate that power or duty.

(4)A person exercising or performing a power or duty that has been delegated to the person under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(5)Nothing in this section limits the ability of WorkCover WA to perform a function through an officer or agent.

[Section 101AA inserted by No. 42 of 2004 s. 91.]

101A.Borrowings by WorkCover WA

(1)Subject to this Act WorkCover WA may, with the prior approval of the Treasurer, borrow such moneys as it thinks necessary from time to time for carrying out its functions.

(2)WorkCover WA shall not exercise the powers conferred by this section unless a proposal in writing showing — 

(a)the terms and particulars of the proposed loan;

(b)the rate of interest to be paid on that loan;

(c)the purpose to which the money borrowed is to be applied; and

(d)the manner in which the loan is to be repaid,

shall first be submitted by it on the recommendation of the Minister to, and approved by, the Treasurer.

(3)Any moneys borrowed by WorkCover WA under this section may be raised as one loan or as several loans and in such manner as the Treasurer may approve, but the amount of the moneys so borrowed shall not in any one year exceed in the aggregate such amount as the Treasurer approves.

[Section 101A inserted by No. 104 of 1984 s. 5; amended by No. 42 of 2004 s. 150.]

101B.Guarantees of borrowings

(1)The Treasurer is hereby authorised to guarantee — 

(a)the repayment of any amount borrowed from time to time under section 101A; and

(b)the payment of interest and such other charges in respect of such borrowings as he has approved.

(2)Before a guarantee is given by the Treasurer under this section, WorkCover WA shall give to the Treasurer such security as the Treasurer may require and shall execute all such instruments as may be necessary for the purpose.

(3)The Treasurer shall cause any money required for fulfilling any guarantee given by him under this section to be charged to the Consolidated Fund which, to the extent necessary, is hereby appropriated accordingly and the Treasurer shall cause any amounts received or recovered from WorkCover WA or otherwise in respect of moneys so charged by him to be credited to the Consolidated Fund.

[Section 101B inserted by No. 104 of 1984 s. 5; amended by No. 6 of 1993 s. 11; No. 49 of 1996 s. 64; No. 42 of 2004 s. 150.]

102.Limitation on powers

Apart from coordinating arrangements in the matters referred to in section 100(d) and (e), WorkCover WA or its officers shall not provide facilities or perform services for or in respect of those matters unless directed to do so by the Minister.

[Section 102 amended by No. 42 of 2004 s. 150.]

[103.Repealed by No. 34 of 1999 s. 35.]

103A.Returns

(1)A person being or having been an insurer or self‑insurer who refuses or fails to furnish to WorkCover WA, within such reasonable time as is specified by WorkCover WA, any information or return requested in writing by WorkCover WA in order to enable it to compile and record such statistics, records and reports as it considers desirable for the better administration of this Act, commits an offence.

(2)A person who furnishes to WorkCover WA under subsection (1) any information or return that is false in a material particular commits an offence.

Penalty: $2 000.

[Section 103A inserted by No. 44 of 1985 s. 24; amended by No. 96 of 1990 s. 25; No. 42 of 2004 s. 93(a), (c), (d) and 150.]

104.Publishing and furnishing information

WorkCover WA may — 

(a)from time to time, publish information for the guidance of the public on workers’ compensation matters; and

(b)when requested, furnish workers and employers with information in respect of ways and means available to them to establish or protect their rights or perform their obligations under this Act.

[Section 104 amended by No. 42 of 2004 s. 94 and 150.]

Division 1AA — Personal interest

[Heading inserted by No. 42 of 2004 s. 95.]

104AA.Disclosure of interests

(1)A member of WorkCover WA’s governing body who has a material personal interest in a matter being considered or about to be considered by the governing body must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the governing body.

Penalty: $10 000.

(2)A disclosure under subsection (1) is to be recorded in the minutes of the meeting.

[Section 104AA inserted by No. 42 of 2004 s. 95.]

104AB.Exclusion of interested member

(1)A member of WorkCover WA’s governing body who has a material personal interest in a matter that is being considered by the governing body — 

(a)must not vote on the matter; and

(b)must not be present while the matter is being considered at a meeting.

(2)In subsection (1)(a) and (b) a reference to a matter also refers to a proposed resolution under section 104AC in respect of the matter, whether relating to that member or a different member.

[Section 104AB inserted by No. 42 of 2004 s. 95.]

104AC.Resolution that section 104AB inapplicable

Section 104AB does not apply if the governing body has at any time passed a resolution that — 

(a)specifies the member, the interest, and the matter; and

(b)states that the members voting for the resolution are satisfied that the interest should not disqualify the member from considering or voting on the matter.

[Section 104AC inserted by No. 42 of 2004 s. 95.]

104AD.Quorum where section 104AB applies

Despite section 97(3), when the governing body is dealing with a matter in relation to which a member of the governing body is disqualified under section 104AB, 3 members who are entitled to vote on any motion that may be moved in relation to the matter constitute a quorum.

[Section 104AD inserted by No. 42 of 2004 s. 95.]

104AE.Minister may declare sections 104AB and 104AD inapplicable

(1)The Minister may by writing declare that section 104AB or 104AD does not apply in relation to a specified matter either generally or in voting on particular resolutions.

(2)The Minister must within 14 sitting days after a declaration under subsection (1) is made cause a copy of the declaration to be laid before each House of Parliament.

[Section 104AE inserted by No. 42 of 2004 s. 95.]

Division 1A — Conciliation and Review Directorate

[Heading inserted by No. 48 of 1993 s. 23.]

104A.Establishment

(1)There is to be established a Conciliation and Review Directorate consisting of the Director of Conciliation and Review, and such conciliation officers, review officers, and other staff as are required for the performance of the functions given by this Act to those officers.

(2)The officers in the Conciliation and Review Directorate are to be officers of the Commission appointed in accordance with section 177.

(3)A person is not to become the Director, a conciliation officer, or a review officer without the approval of the Minister.

[Section 104A inserted by No. 48 of 1993 s. 23.]

104B.Responsibility

(1)The Director is the principal officer of the Directorate and is responsible to the Executive Director in administrative matters concerning the Directorate but in matters concerning the resolution of disputes the Director is responsible directly to the Minister.

(2)Neither a conciliation officer nor a review officer is subject to direction as to the decision to be given in a particular matter.

[Section 104B inserted by No. 48 of 1993 s. 23.]

Division 2 — Accounts and audit

105.Application of Financial Administration and Audit Act 1985

The provisions of the Financial Administration and Audit Act 1985 regulating the financial administration, audit and reporting of statutory authorities apply to and in respect of WorkCover WA and its operations.

[Section 105 inserted by No. 98 of 1985 s. 3; amended by No. 42 of 2004 s. 150.]

Division 3 — Workers’ Compensation and Injury Management General Fund

[Heading inserted by No. 86 of 1986 s. 7; amended by No. 42 of 2004 s. 97.]

106.General Fund

(1)For the purposes of this Act, there shall be established and maintained an account to be called the Workers’ Compensation and Injury Management General Fund and that account shall be kept — 

(a)as part of the Trust Fund constituted under section 9 of the Financial Administration and Audit Act 1985; or

(b)at a bank approved by the Treasurer under section 21 of the Financial Administration and Audit Act 1985.

(2)There shall be credited to the General Fund — 

[(a)deleted]

(b)all moneys, other than moneys payable to the Workers’ Compensation and Injury Management Trust Fund, whether from levies, contributions, penalties, fines, interest or other sources, received by or for WorkCover WA in the exercise of its functions under this Act;

(c)all moneys borrowed by WorkCover WA under section 101A; and

(d)any moneys required to be transferred to the General Fund under section 6A(1) of the Employers’ Indemnity Supplementation Fund Act 1980.

(3)There shall be paid from moneys standing to the credit of the General Fund — 

(a)all moneys required for the remuneration and allowances of members of the governing body of WorkCover WA and of WorkCover WA’s staff;

(b)compensation payable by the General Fund to a worker pursuant to this Act;

(c)the costs of rehabilitation of workers paid pursuant to Part IX;

(ca)interest on and repayments of money borrowed by WorkCover WA under section 101A and charges in respect of such borrowings;

(d)the costs of and incidental to proceedings instituted by WorkCover WA under this Act;

(da)any moneys required to be transferred to the Employers’ Indemnity Supplementation Fund under section 6A(2) of the Employers’ Indemnity Supplementation Fund Act 1980;

(e)all other moneys, except those to be charged to the Trust Fund, required by WorkCover WA and dispute resolution bodies for carrying out their respective functions under this Act; and

(f)any other moneys so required to be paid under this Act or any other enactment.

[Section 106 amended by No. 79 of 1983 s. 3; No. 104 of 1984 s. 6; No. 86 of 1986 s. 9; No. 96 of 1990 s. 26; No. 1 of 1993 s. 14; No. 48 of 1993 s. 28(1); No. 49 of 1996 s. 64; No. 42 of 2004 s. 98(1), (2) and (3)(a) and 150.]

107.Estimates

(1)Notwithstanding the provisions of the Financial Administration and Audit Act 1985, WorkCover WA shall in each year prepare an estimate of the amount necessary to be raised by way of levies and contributions payable to the General Fund to carry out its functions under this Act; and, as soon as practicable after the preparation of the estimate, WorkCover WA shall submit it to the Minister and it shall not have any force or effect unless and until it is approved by the Minister.

(2)If the General Fund is in surplus at the commencement of the year for which the estimate is being prepared, the estimate shall be calculated by deducting from the estimated expenditures the sum of — 

(a)the estimated receipts of the General Fund from all sources other than the levy and contributions; and

(b)the balance of the General Fund at the commencement of the year.

(3)If the General Fund is in deficit at the commencement of the year for which the estimate is being prepared, the estimate shall be calculated by deducting the estimated receipts of the General Fund arising from all sources other than the levy and contributions, from the sum of — 

(a)the estimated expenditure; and

(b)the balance of the General Fund at the commencement of the year.

(4)In calculating the estimate, both the estimated increase required in reserves over that year and depreciation may be included in the estimated expenditure of the General Fund.

[Section 107 amended by No. 98 of 1985 s. 3; No. 96 of 1990 s. 27; No. 42 of 2004 s. 150.]

108.Total contributions

For any one year WorkCover WA may levy as total contributions to the General Fund an amount equal to the estimate for that year.

[Section 108 amended by No. 42 of 2004 s. 150.]

109.Contributions to General Fund by insurers

(1)Each insurer shall contribute annually to the General Fund a sum equal to — 

(a)the amount prescribed for the purposes of this subsection; or

(b)a sum amounting to a percentage to be fixed by WorkCover WA of the total amount of the premium income (whether received by or owing to the insurer) of the insurer in respect of the year ended 30 June then last past in respect of insurance of employers against their liability to pay compensation under this Act, and their liability under any other law in respect of persons employed by them, excluding any part of the premiums actually paid by way of reinsurance to any other insurer contributing under this Act, which percentage shall be uniform for all insurers,

whichever is the greater.

(2)A contribution referred to in subsection (1) or (4) shall be paid on 1 October in each year or on such other days as WorkCover WA determines unless it exceeds $15 000, in which case it may be paid in quarterly instalments on 1 October, 1 January, 1 April and 1 June in each year or on such other days as WorkCover WA may determine, and where it, or any instalment of it, is not so paid WorkCover WA may sue and recover the amount of the contribution or instalment, as the case may be, from the insurer or self‑insurer without affecting the liability of the insurer or self‑insurer, as the case may be, to a penalty under subsection (3).

(2a)WorkCover WA shall give insurers and self‑insurers at least 30 days written notice of any day determined under subsection (2).

(3)If any contribution referred to in subsection (1) or (4) or any instalment of it is not paid on or before any day prescribed or determined under subsection (2), the insurer, or self‑insurer as the case may be, commits an offence.

Penalty: $2 000.

(4)A self‑insurer shall, in respect of any period for which contributions to the General Fund are payable by insurers, contribute to the General Fund a sum equal to — 

(a)the amount prescribed for the purposes of this subsection; or

(b)such contribution as WorkCover WA considers reasonable, assessed upon the wages, salaries, or other remuneration, including amounts paid to workers employed under an agreement to perform — 

(i)a specified quantity of work for a specified sum;

(ii)work on piece rates;

(iii)work on a bonus or commission system; or

(iv)work on any other system for payment by results,

paid by the self‑insurer to workers during that period, having regard to the premium payable for insurance by employers engaged in the same or any similar trade, occupation, calling, or industry,

whichever is the greater, and the self‑insurer shall upon demand and within such time as WorkCover WA may specify supply WorkCover WA with such particulars of the wages, salaries, or other remuneration paid by him during that period as are required by WorkCover WA.

(4a)If a self‑insurer furnishes particulars to WorkCover WA under subsection (4) which are false in any material particular, the self‑insurer is guilty of an offence.

Penalty: $5 000.

(4b)Any self‑insurer failing to send particulars to WorkCover WA within the time specified under subsection (4) commits an offence and is liable to a penalty of $2 000 and a daily penalty not exceeding $100.

(5)In the month of July of each year or at such other time as WorkCover WA may appoint, every insurer shall send a return showing the amount of the premium income (whether received by or owing to the insurer) in respect of insurance of employers against their liability to pay compensation under this Act and their liability under any other law in respect of persons employed by them during the year ended 30 June then last past, excluding any part of that premium income actually paid by way of reinsurance to any other insurers contributing under this Act, together with a statutory declaration by the insurer or his or its manager, secretary, or agent in the State, that he has carefully examined the return and to the best of his knowledge, information, and belief the return is a true return of that amount.

(6)Any insurer failing to send the return or statutory declaration in that month or by such other time as WorkCover WA shall appoint, as the case may be, commits an offence and is liable to a penalty of $2 000 and a daily penalty not exceeding $100.

(7)If an insurer sends a return which is false in any material particular, the insurer is guilty of an offence.

Penalty: $5 000.

[Section 109 amended by No. 44 of 1985 s. 25; No. 85 of 1986 s. 7; No. 34 of 1999 s. 57; No. 42 of 2004 s. 99 and 150.]

Division 4 — Workers’ Compensation and Injury Management Trust Fund

[Heading inserted by No. 86 of 1986 s. 7; amended by No. 42 of 2004 s. 100.]

110.Trust Fund

(1)For the purposes of this Act, there shall be established and maintained an account to be called the Workers’ Compensation and Injury Management Trust Fund and that account shall be kept — 

(a)as part of the Trust Fund constituted under section 9 of the Financial Administration and Audit Act 1985; or

(b)at a bank approved by the Treasurer under section 21 of the Financial Administration and Audit Act 1985.

(2)There shall be credited to the Trust Fund all moneys paid to WorkCover WA under section 84F.

(3)Moneys standing to the credit of the Trust Fund shall become one common fund to be invested by WorkCover WA.

(4)Investments made from the Trust Fund shall not be made on account of or belong to any particular person.

(5)Interest or income earned by such investments shall be credited to the Trust Fund.

(6)WorkCover WA may, with the written approval of the Treasurer, invest moneys standing to the credit of the Trust Fund in such investments or securities, and subject to such conditions, as are specified in the instrument of approval.

(7)WorkCover WA with the approval of the Treasurer shall fix from time to time — 

(a)the rate of interest payable to the respective persons entitled to money standing to the credit of the Trust Fund in accordance with an order of a dispute resolution body; and

(b)the proportion of the costs of administration of the Trust Fund and investments from it to be charged to the respective persons entitled to money in the Trust Fund.

(8)There shall be paid from moneys standing to the credit of the Trust Fund — 

(a)to WorkCover WA all money required for the cost of its administration; and

(b)to or on behalf of the respective persons entitled to money standing to the credit of the Trust Fund, the amount apportioned to them respectively in accordance with an order of a dispute resolution body, plus interest payable, and less charges made, under subsection (7).

[Section 110 amended by No. 86 of 1986 s. 10; No. 96 of 1990 s. 28; No. 48 of 1993 s. 28(1); No. 49 of 1996 s. 64; No. 34 of 1999 s. 36; No. 42 of 2004 s. 101(1) and 150.]

Division 5 — Ministerial control

111.Minister may give directions

(1)The Minister may give directions in writing to WorkCover WA with respect to the performance of its functions, either generally or in relation to a particular matter, unless prevented by subsection (1a) from doing so, and WorkCover WA shall give effect to any such direction.

(1a)The Minister cannot give to WorkCover WA any direction with respect to the performance of any of its functions under section 151 unless the direction is allowed by section 154AB.

(2)The text of any direction given under subsection (1) shall be included in the annual report submitted by the accountable authority of WorkCover WA under section 66 of the Financial Administration and Audit Act 1985.

[Section 111 inserted by No. 72 of 1992 s. 14; amended by No. 42 of 2004 s. 102 and 150.]

111A.Minister to have access to information

(1)For parliamentary purposes or for the proper conduct of the Minister’s public business, the Minister is entitled — 

(a)to have information in the possession of WorkCover WA; and

(b)where the information is in or on a document, to have, and make and retain copies of, that document.

(2)For the purposes of subsection (1) the Minister may — 

(a)request WorkCover WA to furnish information to the Minister;

(b)request WorkCover WA to give the Minister access to information;

(c)for the purposes of paragraph (b) make use of the staff of WorkCover WA to obtain the information and furnish it to the Minister.

(3)WorkCover WA shall comply with a request under subsection (2) and make its staff and facilities available to the Minister for the purposes of paragraph (c) of that subsection.

(4)In this section — 

document includes any tape, disc or other device or medium on which information is recorded or stored mechanically, photographically, electronically or otherwise;

information means information specified, or of a description specified, by the Minister that relates to the functions of WorkCover WA;

parliamentary purposes means the purpose of — 

(a)answering a question asked in a House of Parliament; or

(b)complying with a written law, or an order or resolution of a House of Parliament, that requires information to be furnished to a House of Parliament.

[Section 111A inserted by No. 72 of 1992 s. 14; amended by No. 42 of 2004 s. 150.]

Part VI  Compensation magistrate’s courts

[Heading inserted by No. 48 of 1993 s. 24.]

112.Establishment of compensation magistrate’s courts

(1)The Governor may by proclamation establish a compensation magistrate’s court at any place within the State.

(2)A compensation magistrate’s court is a court of record and has an official seal.

(3)The Governor may by proclamation disestablish a compensation magistrate’s court.

(4)When a compensation magistrate’s court is disestablished, all proceedings pending in the court and all records of the court are to be transferred to such other compensation magistrate’s court as the Governor directs in the proclamation referred to in subsection (3).

(5)Notwithstanding subsection (1), a compensation magistrate’s court may sit and act at any time and place notified in the prescribed manner.

[Section 112 inserted by No. 48 of 1993 s. 24.]

113.Constitution of compensation magistrate’s courts

(1)A compensation magistrate’s court is to be constituted by a compensation magistrate.

(2)The Governor may, on the recommendation of the Chief Magistrate of the Magistrates Court, appoint a person holding office as a magistrate to be a compensation magistrate.

(3)A compensation magistrate ceases to hold office upon — 

(a)ceasing to hold office as a magistrate; or

(b)resigning office by written notice addressed to the Governor.

(4)The Governor may, on the recommendation of the Chief Magistrate of the Magistrates Court, appoint a person to act in the office of a compensation magistrate for any period during which that compensation magistrate is, or is expected to be, for any reason unable to perform the functions of a compensation magistrate.

(5)If the compensation magistrate’s court has not completed the hearing and determination of any proceeding or application before the magistrate constituting that court ceases to be a compensation magistrate or acting compensation magistrate, that magistrate is deemed notwithstanding that cessation to continue to hold office until that hearing and determination is completed.

[Section 113 inserted by No. 48 of 1993 s. 24; amended by No. 59 of 2004 s. 133.]

114.Clerks of compensation magistrate’s court

(1)Each compensation magistrate’s court is to have a clerk who is an officer of the Public Service.

(2)A compensation magistrate may perform any function of a clerk of a compensation magistrate’s court constituted by that compensation magistrate.

(3)The clerk of a compensation magistrate’s court has in relation to that court like powers to those that a registrar of the Magistrates Court has for the purposes of the criminal jurisdiction of the Magistrates Court under the Criminal Procedure Act 2004.

[Section 114 inserted by No. 48 of 1993 s. 24; amended by No. 59 of 2004 s. 133; No. 84 of 2004 s. 78.]

115.Jurisdiction of compensation magistrate’s courts

(1)A compensation magistrate’s court is a court of summary jurisdiction with jurisdiction to — 

(a)hear and determine any case referred under section 84ZM;

(b)hear and determine any appeal under section 84ZN;

(c)hear and determine any application made to it under and in accordance with this Act; and

(d)hear and determine the matters referred to in section 188A.

(2)A compensation magistrate’s court has in the exercise of its jurisdiction under this Act like powers to those of a court of summary jurisdiction.

(2a)Sections 15, 16, 35 and 36 and Part 3 Division 2 of the Magistrates Court Act 2004 apply to and in relation to a compensation magistrate’s court and its officers in the same way as they apply to and in relation to the Magistrates Court and its officers.

(3)In the absence of evidence to the contrary, anything done by a compensation magistrate’s court is to be taken to have been done within its jurisdiction.

[Section 115 inserted by No. 48 of 1993 s. 24; amended by No. 59 of 2004 s. 133; No. 84 of 2004 s. 80.]

116.Compensation magistrate’s court to determine on substantial merits

In the hearing and determination of matters referred to in section 115(1)(a), (b) and (c) a compensation magistrate’s court is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms and is not bound by legal precedent or its own decisions and rulings in any other matter nor by any rules of evidence but may inform its mind on any matter in such a way as it regards as just.

[Section 116 inserted by No. 48 of 1993 s. 24.]

117.Determination final

Subject to this Act, a determination of a compensation magistrate’s court is final and conclusive and is not open to question or review in any court, and proceedings by or before a compensation magistrate’s court may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court.

[Section 117 inserted by No. 48 of 1993 s. 24.]

118.Compensation magistrate’s court may reconsider decision

Nothing in section 117 prevents a compensation magistrate’s court from reconsidering any matter which has been dealt with by it or from revoking, altering, or amending any decision or order previously made, all of which a compensation magistrate’s court has authority to do.

[Section 118 inserted by No. 48 of 1993 s. 24.]

119.Fund to bear cost of compensation magistrate’s courts

The Commission is to pay from the General Fund to the Consolidated Fund such amount as the Treasurer directs in respect of the cost to the State of providing compensation magistrate’s courts.

[Section 119 inserted by No. 48 of 1993 s. 24.]

120.Compensation magistrate’s court records, access to

(1)In respect of a compensation magistrate’s court’s records of proceedings in its jurisdiction under section 115(1)(d), section 33 of the Magistrates Court Act 2004, with any necessary changes, applies.

(2)In respect of a compensation magistrate’s court’s records of proceedings in its jurisdiction under section 115(1)(a), (b) and (c), subsections (3) to (9) apply.

(3)A party to the proceedings may, on request, inspect or obtain a copy of any document that is part of the court’s record of those proceedings.

(4)A person who is not a party to the proceedings may, with the leave of the court, inspect or obtain a copy of any document that is part of the court’s record of the proceedings.

(5)Any person may, with the leave of the court, inspect or obtain a copy of any thing (other than a document) received by the court in the proceedings on which information is recorded or stored, such as a photograph, tape or disc.

(6)Any person may, with the leave of the court, listen to, view or obtain a copy of a recording of the proceedings.

(7)When giving leave under subsection (4), (5) or (6) the court may impose conditions on the person’s access to information, including a condition prohibiting or limiting the publication or use of the information.

(8)A decision by the court under subsection (4), (5), (6) or (7) is administrative and is final and not subject to any form of review.

(9)If under this section a document may be supplied to a person it may, at the request of the person, be supplied in an electronic form.

(10)The regulations may prescribe fees to be paid for inspecting, obtaining a copy of, listening to or viewing information in relation to proceedings in any jurisdiction of a compensation magistrate’s court.

[Section 120 inserted by No. 59 of 2004 s. 130.]

[121‑144.Repealed by No. 48 of 1993 s. 24.]

Part VII  Medical assessment panels

[Heading inserted by No. 48 of 1993 s. 25.]

145.Exclusion

A medical assessment panel does not have jurisdiction to deal with a question that is within the jurisdiction of a medical panel established under section 36.

[Section 145 inserted by No. 48 of 1993 s. 25.]

145A.Questions that have to be referred

(1)Subject to subsection (2), a question may be referred for determination by a medical assessment panel under section 84R, 84ZH or 84ZR only if — 

(a)there is a conflict of medical opinion on the question between — 

(i)a medical practitioner engaged by the worker; and

(ii)a medical practitioner provided and paid by the employer, or each medical practitioner so provided and paid if there is more than one of them;

and

(b)one of the parties wishes the proceedings to continue.

(2)A question as to the degree of permanent loss of the full efficient use of the back, neck or pelvis may be referred for determination by a medical assessment panel under section 84R, 84ZH or 84ZR if — 

(a)the employer does not agree to pay an amount claimed by the worker by way of an election made for the purposes of section 24; and

(b)the worker requests that the question be so referred.

[Section 145A inserted by No. 48 of 1993 s. 25; amended by No. 34 of 1999 s. 37.]

145B.Register for panel membership

(1)The Director is to keep a register containing the names of medical practitioners approved under subsection (2) who are willing to be selected for a medical assessment panel.

(2)The Minister may, with the consent of the practitioner and after consultation with the Western Australian Branch of the Australian Medical Association Incorporated and other medical profession organisations, approve of the name of a medical practitioner being included in the register.

(3)A practitioner is only eligible to be registered under this section if practising in a clinical capacity.

[Section 145B inserted by No. 48 of 1993 s. 25.]

145C.Panel to be constituted

(1)On a question being referred for determination by a medical assessment panel, the Director is to select 2 or 3 medical practitioners who are registered under section 145B to be the panel that is to determine the question.

(2)Of the members of the panel at least one is to be a specialist in the particular branch of medicine or surgery that is relevant to the question.

(3)A medical practitioner who has treated or examined the worker concerned in a professional capacity is not eligible to be a member of the panel.

(4)The Director is to nominate one of the members of the panel to be its Chairman.

[Section 145C inserted by No. 48 of 1993 s. 25; amended by No. 34 of 1999 s. 38.]

145D.Procedures

(1)In determining the question the panel is to act speedily and informally, and in accordance with good conscience, without regard to technicalities or legal forms and is not bound by rules of practice nor evidence.

(2)The panel may, for the purposes of assisting it in determining the question, require the worker concerned to — 

(a)attend before the panel;

(b)answer questions put by the panel;

(c)produce documents to the panel, or consent to another person who has relevant documents producing them to the panel;

(d)submit to medical examination by the panel,

but the panel is not authorised to treat the worker or require that the worker be treated.

(3)Powers given by subsection (2) to a panel are to be exercised in private unless the worker otherwise consents, and any information or document obtained from, or by the consent of, the worker is not to be disclosed or given to any other person, except the person from whom it was obtained, without the consent of the worker.

(4)A person is not entitled to be represented in proceedings before a medical panel.

(5)If the worker concerned, without reasonable excuse (proof of which is on the worker) — 

(a)refuses to comply with a requirement made by the panel under subsection (2)(a), (b) or (c); or

(b)on being required to submit to examination by the panel, refuses to do so or in any way obstructs the examination,

the Director may issue a certificate to that effect whereupon the worker’s right to compensation or to take or prosecute any proceeding under this Act or, in the case of a worker in receipt of a weekly payment, to that weekly payment, is suspended until the Director certifies that the suspension is removed.

[Section 145D inserted by No. 48 of 1993 s. 25.]

145E.Determinations

(1)If the members of the panel are not in unanimous agreement as to a question, the question is to be determined in accordance with the opinion of at least 2 members of the panel.

(2)The determination is to be made as soon as is practicable but in any event within 28 days after the day on which a medical examination of the worker concerned is carried out by the panel.

(3)The determination and the reasons for making it are to be given in writing signed by the Chairman in a form approved by the Director, and are to be given to the Director within 7 days after the day on which the determination is made.

(4)The Director is to give the determination and reasons to the person who referred the question to the panel and the worker concerned within 3 days after the day on which the Director receives them.

(5)Unless rescinded under section 145F, the determination, or if the determination is varied under that section the determination as varied, is final and binding on the worker and his employer and on any court or tribunal hearing a matter in which any such determination is relevant and the written determination given under subsection (3) is, in the absence of evidence that the determination was so rescinded or varied, conclusive evidence as to the matters determined.

[Section 145E inserted by No. 48 of 1993 s. 25.]

145F.Review

(1)If at least 60 days after the determination is made a person who is affected by the determination satisfies the Director that there is any new evidence that could not have been submitted to the panel and would be likely to affect the determination of the question if it were to be reconsidered by the panel the Director may again refer the question to the panel.

(2)The panel may refer to anything that was available to it when previously determining the matter as well as doing anything that it could do if the question were referred to it for determination in the first instance.

(3)The panel may vary its previous determination or rescind it and make a new determination.

(4)Sections 145D and 145E and this section also apply in relation to a determination under this section.

[Section 145F inserted by No. 48 of 1993 s. 25.]

145G.Remuneration

(1)A member of a medical assessment panel is entitled to such fees and allowances as may be determined by the Minister.

(2)The fees and allowances mentioned in subsection (1) shall be paid by WorkCover WA from moneys standing to the credit of the General Fund.

[Section 145G inserted by No. 48 of 1993 s. 25; amended by No. 49 of 1996 s. 64; No. 42 of 2004 s. 150.]

[146.Repealed by No. 48 of 1993 s. 25.]

Part VIII  Premium Rates

[Heading amended by No. 42 of 2004 s. 111.]

[147‑150.Repealed by No. 42 of 2004 s. 112.]

151.Fixing premiums

For the purpose of fixing premium rates to be charged for insurance in respect of all insurable risks under this Act, the following provisions apply — 

(a)WorkCover WA shall from time to time — 

(i)fix categories of businesses or groups of businesses each with a different insurable risk and specify the types of business or occupation within each category;

(ii)on the basis formulated pursuant to paragraph (b) fix the appropriate recommended premium rate for each category; and

(iii)fix an additional industrial disease premium to cover claims in respect of pneumoconiosis and mesothelioma arising from employment in any mine or mining operation and claims in respect of other industrial diseases as may be specified by the Minister from time to time by notice published in the Gazette, which industrial disease premium shall be paid by employers in classes to be specified by WorkCover WA pursuant to paragraph (c) in respect of such claims;

(b)WorkCover WA is to formulate a basis expressed as a loss ratio for a category or group of categories on which basis it is to fix for each category a recommended premium rate pursuant to paragraph (a)(ii); and

(c)WorkCover WA may specify classes of employers specially fixed by the Minister the employers within which class are liable to pay the industrial disease premium at a rate specified by WorkCover WA for that class.

[Section 151 amended by No. 44 of 1985 s. 30; No. 96 of 1990 s. 30; No. 42 of 2004 s. 113 and 153.]

151A.Report as to rates

(1)Where under section 151(a)(ii) WorkCover WA fixes any recommended premium rate it shall, as soon as practicable thereafter, prepare and make available to any person upon request a report as to — 

(a)the actuarial basis of any recommended premium rate fixed; and

(b)the comparative claims experience of the different businesses or groups of businesses concerned.

(2)A report under subsection (1) shall not contain information identifying or enabling the identification of any employer.

[Section 151A inserted by No. 96 of 1990 s. 31; amended by No. 42 of 2004 s. 153.]

152.Loading not to exceed 100% unless permitted by WorkCover WA

Unless permitted by WorkCover WA to do so, an insurer shall not charge a loading on a recommended premium rate of more than 100% of that rate.

[Section 152 inserted by No. 34 of 1999 s. 40; amended by No. 42 of 2004 s. 150.]

153.Fixing maximum loading or discount

Subject to section 152, WorkCover WA may set the maximum permissible loading or the maximum permissible discount which may be charged or given in respect of a recommended premium rate.

[Section 153 amended by No. 42 of 2004 s. 115 and 150.]

153A.Minimum premiums

WorkCover WA may recommend a minimum premium for a policy or for any kind or description of policy, of insurance against liability to pay compensation under this Act, and an insurer may, notwithstanding sections 152 and 153, charge the premium so recommended or a lesser premium.

[Section 153A inserted by No. 33 of 1986 s. 6; amended by No. 42 of 2004 s. 153.]

154.Appeals

(1)An employer who is dissatisfied with — 

(a)the type of business or occupation on the basis of which an insurer charges the premium required to insure him under this Act;

(b)the amount of the premium which an insurer assesses as required to insure him under this Act at the time of issue or renewal of the policy,

may appeal against the classification or assessment to WorkCover WA in the manner and within the time provided in subsections (2) and (4).

(2)The appeal is made by giving written notice of it —

(a)to WorkCover WA and the insurer within one month of being informed of the classification or assessment or within such further time as WorkCover WA may, in the circumstances of the case, consider it is reasonable to allow;

[(b)deleted]

stating the grounds of objection and the classification or assessment, as the case may be, the employer seeks.

(3)Notwithstanding the notice of appeal the employer is to pay the premium as assessed by the insurer and the insurer is to issue or renew the policy.

(4)WorkCover WA may fix a time and place for the hearing of an appeal pursuant to subsection (1) and laying down its own procedure may hear and determine the appeal and, as the case requires, decide the proper classification or the proper assessment of the premium not exceeding that assessment initially sought by the insurer.

(5)If the effect of a decision on the appeal is that a lesser sum is payable by way of premium than that already paid to the insurer the insurer shall forthwith repay to the employer the amount of the overpayment and if he does not do so the employer may sue and recover the amount from the insurer.

[Section 154 amended by No. 51 of 1986 s. 46(2); No. 96 of 1990 s. 32; No. 34 of 1999 s. 41; No. 42 of 2004 s. 116, 150 and 153.]

154A.Regulations for provision of information

(1)Regulations may provide for an insurer to inform an employer of —

(a)specified details of the premium for, and other charges relating to, the policy;

(b)specified details of anything done under this Part that may be relevant to the premium;

(c)specified provisions of this Act, rights or obligations under this Act, or things done under this Act, that may be relevant to the premium.

(2)In subsection (1) —

employer means an employer holding, or seeking to obtain, a policy of insurance against liability to pay compensation under this Act;

specified means specified in the regulations.

[Section 154A inserted by No. 42 of 2004 s. 117.]

154AB.Special directions by Minister

(1)The Minister may give directions in writing as to the effect that the matter described in subsection (2) is to have, while the directions remain in effect, on the fixing under section 151 of recommended premium rates.

(2)That matter is the extent to which the cost of paying compensation under this Act as amended by the Workers’ Compensation Reform Act 2004 in respect of claims made before section 141 of the Workers’ Compensation Reform Act 2004 commenced would differ from what it would have cost to pay compensation arising out of those claims if section 141 of the Workers’ Compensation Reform Act 2004 had not commenced.

(3)Effect is to be given to directions under this section.

[Section 154AB inserted by No. 42 of 2004 s. 117.]

154AC.Regulations for subsidy from Supplementation Fund

(1)The regulations may authorise WorkCover WA to approve an application by an employer for reimbursement of the cost of paying an award of damages to which Part IV Division 2 applies in a case in which a question as to the worker’s degree of disability was referred under section 93EA(3) to the extent, if any, to which the cost exceeds the amount ascertained in accordance with regulations made for the purposes of this section.

(2)The amount of any reimbursement approved under the regulations is to be paid by WorkCover WA to the employer and charged against the Employers’ Indemnity Supplementation Fund established under section 5(1) of the Employers’ Indemnity Supplementation Fund Act 1980.

[Section 154AC inserted by No. 35 of 2004 s. 11; amended by No. 42 of 2004 s. 150.]

Part IX  Rehabilitation

155.Notice of certain periods of incapacity

(1)For the purposes of this section, the relevant day means the day of the commencement of section 33 of the Workers’ Compensation and Assistance Amendment Act 1990 1.

(2)An insurer or a self‑insurer shall, unless exempted under subsection (6) from the requirement to do so, not later than the expiration of 7 days after he acquires the knowledge referred to in paragraph (a) or (b), give to the Commission notice in writing, containing the prescribed particulars, with respect to — 

(a)a worker whose period of incapacity the insurer or self‑insurer knows to have exceeded 4 consecutive weeks; or

(b)a worker whose periods of incapacity during any period of 12 months or less the insurer or self‑insurer knows to have exceeded, in sum, 12 weeks.

(3)Subsection (2) does not apply in relation to a period of incapacity with respect to which notice has already been given under this section or section 155 as in force before the relevant day.

[(4)Omitted under the Reprints Act 1984 s. 7(4)(e).]

(5)An insurer or a self‑insurer failing to comply with subsection (2) commits an offence.

Penalty: $1 000.

(6)The Commission may, in writing, exempt an insurer or a self‑insurer from the requirement to comply with subsection (2), either absolutely or subject to such conditions as it sees fit to impose, and any such exemption has effect according to its tenor until revoked by the Commission.

(7)The Commission may, where a worker suffers a disability compensable under this Act, require the employer of that worker to take reasonable steps to facilitate the rehabilitation of the worker.

[Section 155 inserted by No. 96 of 1990 s. 33.]

156.Further inquiries

The Commission may make such further inquiries and obtain such information as it thinks appropriate regarding the worker’s disability, his incapacity, and the prognosis in respect of that disability or incapacity.

[Section 156 amended by No. 44 of 1985 s. 32.]

156A.Approval of rehabilitation providers

(1)The Commission may, in writing, and subject to such conditions, if any, as it sees fit to impose, approve as a rehabilitation provider any person the Commission considers capable of satisfactorily providing vocational rehabilitation, and may revoke any such approval.

(2)In considering whether or not to approve a person as a rehabilitation provider, to impose conditions on any such approval, or to revoke any such approval, the Commission — 

(a)may have regard to performance criteria established by an advisory committee under section 100A, and to the advice of such a committee in a particular case; and

(b)shall, in the case of the revocation of an approval that is subject to conditions, have regard to whether or not there had been compliance with the conditions.

[Section 156A inserted by No. 96 of 1990 s. 34.]

157.Rehabilitation of workers

(1)A dispute resolution body may at any time require a worker who is incapacitated to undergo rehabilitation as specified by a dispute resolution body and, without limiting the matters that may be specified by a dispute resolution body under this subsection, a dispute resolution body may specify that the worker undergo vocational rehabilitation provided by a different rehabilitation provider selected by the worker.

(2)The Commission shall, upon request, provide to workers, employers and other persons information as to the persons who, under section 156A, are approved rehabilitation providers.

(3)Where a person providing vocational rehabilitation — 

(a)is not an approved rehabilitation provider; or

(b)is an approved rehabilitation provider but contravenes a condition imposed in respect of his approval,

the amount of any fee or other reward paid in respect thereof shall not be regarded as a reasonable expense incurred in respect of vocational rehabilitation for the purposes of clause 17(1a).

(4)Where a fee or other reward is paid for the provision of vocational rehabilitation mentioned in subsection (3) by a person who — 

(a)not being approved as a rehabilitation provider, held himself out as being so approved; or

(b)being approved as a rehabilitation provider subject to any condition, contravenes any such condition,

the person who paid the fee or other reward may recover as a debt due from that person the amount of the fee or other reward paid.

[Section 157 inserted by No. 96 of 1990 s. 35; amended by No. 48 of 1993 s. 28(1).]

158.Further vocational rehabilitation payments may be authorised

Where a worker has no further entitlement under clause 17 to compensation in respect of expenses incurred in undergoing vocational rehabilitation, the Commission may authorise payment from the General Fund of so much of the costs of any further vocational rehabilitation as it thinks fit, but not exceeding in a particular case an amount of $2 000.

[Section 158 inserted by No. 96 of 1990 s. 36.]

158A.Rehabilitation services by employers

The Commission may encourage and promote the establishment by an employer or a group of employers of rehabilitation services for workers of that employer, or workers of any employer of that group, as the case requires, and may authorise payment from the General Fund of such amount as it thinks fit in a particular case, on such terms as it thinks fit, on providing support and incentives to the establishment of such services.

[Section 158A inserted by No. 96 of 1990 s. 36.]

158B.Rehabilitation policy and guidelines

The Commission shall promote the establishment by employers or groups of employers of rehabilitation policies and vocational rehabilitation guidelines.

[Section 158B inserted by No. 96 of 1990 s. 36.]

159.Coordinating facilities

The Commission may make arrangements with other persons or authorities for the use of facilities for the training and treatment of workers and for coordinating the use of available facilities.

Part X — Insurance

Division 1 — Liability of employers and insurers

160.Employer to obtain insurance

(1)Subject to this Act, every employer shall obtain from an approved insurance office and shall keep current a policy of insurance for the full amount of his liability to pay compensation under this Act to any worker employed by him including any increase in amount occurring during currency of the policy.

(2)An employer obliged by this section to effect or renew a policy of insurance shall, on applying to an approved insurance office, for that purpose, furnish to that office an estimate, made to the best of that employer’s knowledge, information and belief, of the aggregate amount of wages, salaries, or other remuneration to be paid to the employer’s workers not including any amount paid by way of compensation under this Act but including any amounts paid to workers employed under an agreement to perform — 

(a)a specified quantity of work for a specified sum;

(b)work on piece rates; or

(c)work on a bonus or commission system for payment by results,

over the period for which the policy is to be effected or renewed; and shall forthwith after the termination of that period furnish a statement of the aggregate amount of those wages paid in fact and shall include in that statement every sum paid during that period to an employee in respect of overtime worked by the employee.

(2a)Where, under section 10A, an employer that is a company applies to an approved insurance office under subsection (2) on the basis that any director of the company is a worker, that employer shall, in relation to each such director, furnish to that office, in addition to the information required to be furnished under subsection (2) —

(a)the name of the director; and

(b)in relation to that director in particular, the information, verified as required under subsection (2), that the employer is required under that subsection to furnish in relation to the employer’s workers.

(3)An approved insurance office shall insure any employer requesting it for the full amount of the liability of the employer to pay compensation under this Act to all workers employed by him.

Penalty: $2 000.

(4)Where a policy or contract of insurance obtained by an employer from an approved insurance office under this section has lapsed, and — 

(a)the employer is not insured against his liability to pay compensation under this Act;

(b)the employer has incurred liability to pay compensation under this Act after the lapsing of the policy or contract of insurance; and

(c)not more than 7 days have elapsed from the time when WorkCover WA received from that approved insurance office a statement in respect of the lapsed policy or contract under section 171(1)(b),

the approved insurance office shall, notwithstanding the lapse of the policy or contract of insurance, be liable to indemnify the employer in respect of that liability as if the liability were incurred during the term of the policy or contract of insurance.

[Section 160 amended by No. 44 of 1985 s. 34; No. 85 of 1986 s. 10; No. 96 of 1990 s. 37; No. 34 of 1999 s. 42; No. 42 of 2004 s. 150.]

161A.Penalty — issue or renewal of policy without approval

An incorporated insurance office shall not issue or renew a policy insuring an employer against his liability to pay compensation under this Act unless the incorporated insurance office is approved by the Minister under section 161 and the approval is not suspended at the time of the issue or renewal of the policy or has not been revoked by the Minister.

Penalty: $5 000.

[Section 161A inserted by No. 44 of 1985 s. 35; amended by No. 34 of 1999 s. 57.]

161.Approvals

(1)For the purpose of this Part incorporated insurance office includes any duly incorporated company carrying on business in the State under the Insurance Act 1973 of the Commonwealth.

(2)The requirements for an incorporated insurance office to be approved under this section are that it is able to meet the requirements mentioned in subsection (3).

(3)The requirements for an incorporated insurance office that is approved under this section to remain so approved are that it — 

(a)has material and financial resources available to it that the Minister, on the advice of WorkCover WA, considers sufficient to enable it to discharge its obligations for the purposes of this Act;

(b)maintains in the State an office having such resources and authority as the Minister considers satisfactory for the expeditious handling of claims;

(c)provides a standard of service to employers and, on behalf of employers, to workers that the Minister, on the advice of WorkCover WA, considers satisfactory;

(d)complies with the time limits and other requirements imposed under this Act and the Employers’ Indemnity Supplementation Fund Act 1980;

(e)consistently maintains a standard of detail and accuracy in the information required under this Act to be provided by it that is satisfactory to the Minister; and

(f)otherwise discharges its obligations under or for the purposes of this Act to a standard that the Minister, on the advice of WorkCover WA, considers satisfactory.

(4)Where an incorporated insurance office applies to the Minister for the grant or renewal of approval under this section, the Minister may, if he is satisfied that it meets the requirements for an incorporated insurance office to be or remain approved, as the case may be, grant or renew the approval, as the case requires, and, in granting or renewing the approval, attach such conditions, if any, as he sees fit to the approval.

(5)Subject to subsection (6), an approval under this section ceases to have effect, unless sooner renewed, at the expiration of 5 years after the day on which the approval was granted or, where it has been previously renewed under this section, at the expiration of 5 years after the day on which it was last renewed.

(6)Notwithstanding subsection (5) but subject to subsection (7), an approval granted or deemed to be granted under this section and current immediately before the day of the commencement of section 38 of the Workers’ Compensation and Assistance Amendment Act 1990 1 continues to have effect for a period of one year after that day and, unless renewed under this section, thereafter is of no effect.

(7)Where an approved insurance office — 

(a)fails in the opinion of the Minister to meet the requirements mentioned in subsection (3) or to comply with any condition attached to its approval; or

(b)so requests,

the Minister may revoke or suspend his approval under this section of that office, but may not do so in any other case.

[Section 161 amended by No. 96 of 1990 s. 38; No. 42 of 2004 s. 150.]

162.The State Government Insurance Commission sole insurer against certain industrial diseases

(1)The State Government Insurance Commission 2 is the only insurer authorised to issue or renew a policy insuring an employer against his liability to pay compensation under this Act for any industrial disease of the kinds referred to in section 151(a)(iii).

(2)Nothing in subsection (1) affects the rights and liabilities of the parties to any contract of insurance existing immediately before the day on which this Part comes into operation for the period of the contract unexpired immediately before that day.

[Section 162 amended by No. 51 of 1986 s. 46(2).]

163.Payment of industrial disease premium and issue of policy

An employer required to pay an industrial disease premium under this Act shall pay that premium to the State Government Insurance Commission 2 which is bound to issue a policy insuring the employer against his liability to pay compensation under this Act for any industrial disease of the kinds referred to in section 151(a)(iii).

[Section 163 amended by No. 51 of 1986 s. 46(2).]

164.Exempt employer

(1)Notwithstanding section 160 if an employer or group of employers has given to the State securities approved by WorkCover WA that are charged with all payments to become due under the employer’s or group’s liability for which insurance would, if there were no exemption, be required by this Act, the Governor may exempt such employer or group from the obligation to insure pursuant to this Act except for the obligation to insure against liability to pay compensation under this Act for any industrial disease of the kinds referred to in section 151(a)(iii).

(1a)In deciding whether an exemption should be given under subsection (1), regard may be had to the number of workers employed and the category of the insurable risks of the business or businesses of the employer or group, whether the employer or group has established a fund for insurance against liability for which insurance would, if there were no exemption, be required by this Act, and the material and financial resources available in the State to the employer, or each employer of the group, to comply with the requirements of this Act or the Employers’ Indemnity Supplementation Fund Act 1980.

(2)An exemption granted under section 13 of the repealed Act and current immediately before the day on which this Part comes into operation is deemed to be an exemption granted under this Part and subject to review as provided by section 165.

[Section 164 amended by No. 96 of 1990 s. 39; No. 42 of 2004 s. 122 and 150.]

165.Review of exemptions

(1)On or before 30 June 1982 and thereafter at least once in each period of one year and also when so required by the Minister WorkCover WA shall review all exemptions granted pursuant to section 164.

(2)After a review the Minister may require an increase or permit a decrease in the value of the securities given to the State pursuant to section 164(1) by an employer or group of employers having regard to — 

(a)the number of workers then employed by the employer or group;

(b)the current category of the insurable risks of the business or businesses of the employer or group;

(ba)whether or not the employer or group is maintaining a fund for insurance against liability for which insurance would, but for the exemption, be required by this Act;

(bb)the material and financial resources available in the State to the employer, or each employer of the group, to comply with the requirements of this Act or the Employers’ Indemnity Supplementation Fund Act 1980;

(c)the claims experience since the last review of the employer or group; or

(d)any change in the extent of the liability to pay compensation under this Act since the last review.

(3)The Minister may after a review recommend to the Governor that an exemption be cancelled — 

(a)for any reason which seems to him to justify doing so in the interests of securing the workers’ entitlements to compensation; or

(b)because of a failure to give to the State any securities directed by the Minister to be given under subsection (4)(b),

and the Governor may then cancel the exemption.

(4)Where — 

(a)under subsection (2) the Minister permits a decrease in the value of the securities given to the State by an employer or group of employers the Minister may order that those securities no longer required to be given to the State be discharged from the charge and returned to the employer or the group, as the case may be;

(b)the Minister requires an increase in the value of securities deposited by an employer or group of employers — 

(i)the Minister may direct the employer or group to give to the State such securities charged with all payments to become due under the employer’s or group’s liability under this Act, in addition to the securities already given, as the Minister determines; or

(ii)the Minister may direct that the securities deposited at the Treasury by that employer or group of employers be discharged from the charge and returned to the employer or group and that the employer or group give to the State further securities to the value determined by the Minister charged with all payments to become due under the employer’s or group’s liability under this Act.

[Section 165 amended by No. 44 of 1985 s. 36; No. 96 of 1990 s. 40; No. 42 of 2004 s. 123(1)‑(5) and 150.]

166.Other cancellations

Where an employer who is exempt, or who is one of a group of employers who is exempt, under section 164, fails or refuses to comply with the requirements of this Act or the Employers’ Indemnity Supplementation Fund Act 1980, the Governor may cancel the exemption of or in respect of that employer.

167.Effect of cessation of exemption

Each employer including a member of a group of employers who ceases to be exempt under section 164 shall forthwith insure as required by section 160.

168.Cessation of exemption

Where an employer or group of employers which is exempt under section 164 — 

(a)applies to the Minister for a revocation of such exemption and for the return of securities given by it or them to the State discharged from the charge referred to in section 164(1); or

(b)proves to the satisfaction of the Minister that — 

(i)the employer or group, as the case may be, has ceased to employ workers; or

(ii)he or they have obtained from an approved insurance office a policy of insurance in compliance with section 160(1),

and that — 

(iii)there are no outstanding claims for compensation; or

(iv)satisfactory provision has been made for discharging any outstanding claims for compensation,

the Governor may by Order in Council revoke the exemption and order that the securities be discharged from the charge and returned to the employer or the group, as the case may be.

[Section 168 amended by No. 96 of 1990 s. 41; No. 42 of 2004 s. 124.]

169.Forms of policy

The Governor may, on the recommendation of WorkCover WA, determine the form in which any policy of insurance made obligatory under this Act is to be effected and upon a form being so determined any policy in respect of which it is determined shall insofar as it relates to insurance or indemnity under this Act be effected, or in the case of an existing policy, renewed in that form.

[Section 169 amended by No. 96 of 1990 s. 42; No. 42 of 2004 s. 150.]

170.Penalty — uninsured worker

(1)An employer who — 

(a)fails to comply with section 160(1) or (2); or

(b)gives in an estimate or statement furnished under section 160(2) any information or particular that he knows to be false in any material particular,

commits an offence and is liable to a penalty of $5 000 in respect of each worker employed by him to whom the offence relates; and that employer commits a separate and further offence in respect of each week after the day of conviction during which section 160(1) or (2), as the case may be, is not complied with by him in respect of a worker to whom the original offence related, and is liable in respect of each such separate and further offence to a penalty of $5 000 for each such worker; and in addition subsection (2) applies.

(2)The court convicting an employer of an offence under subsection (1) shall, in addition to any other penalty imposed in respect of the offence under subsection (1) but subject to subsection (2a), order that the employer pay to the General Fund an amount equal to the total of any insurance premiums payment of which the court is satisfied the employer has, at any time during the period of 5 years before the conviction, avoided by failing to obtain insurance as required by section 160(1), failing to furnish an estimate or statement as required by section 160(2), or giving any false information or particular in any such estimate or statement.

(2a)In making an order under subsection (2) requiring the payment of an amount determined by reference to insurance premiums payment of which has been avoided, an amount that has been taken into account in making a previous such order shall not be again taken into account.

(2b)If an order is made under subsection (2) requiring a body corporate convicted of an offence to pay an amount to the General Fund but all or any of the amount required to be paid remains unpaid, WorkCover WA may sue and recover from a responsible officer the unpaid amount, whether or not the responsible officer has been convicted under subsection (5).

(2c)If there are 2 or more responsible officers, they are jointly and severally liable for the payment of the unpaid amount.

(2d)The amount required to be paid under the order is reduced by any amount recovered under subsection (2b).

(3)A prosecution for an offence under this section must be commenced within 2 years after the date on which the offence was allegedly committed.

(3a)It is a defence to a prosecution for an offence under this section of failing to comply with section 160(1) or (2) in respect of a worker if the court is satisfied that at the time of the alleged offence the employer believed on reasonable grounds that the employer could not be liable under this Act in respect of the worker because under section 20 the worker’s employment was not connected with this State.

(3b)If the employer’s belief on reasonable grounds was that under section 20 the worker’s employment was connected with another State, subsection (3a) does not apply unless at the time of the alleged offence the employer had workers’ compensation cover in respect of the worker under the law of that other State.

(4)In any prosecution for an offence under this section, proof that the employer, not being a self‑insurer —

(a)was required under section 175B(1)(c) to produce for inspection a policy of insurance referred to in section 160(1) obtained by the employer and in force at a specified date or between specified dates; and

(b)did not produce that policy as required,

is prima facie evidence that at that specified date or between those specified dates, as the case may be, the employer failed to comply with section 160(1), and the burden of showing that the employer complied with section 160(1) rests on the employer.

(5)Where a body corporate commits an offence mentioned in subsection (1), every responsible officer commits the like offence.

(6)In subsections (2b), (2c), and (5) responsible officer, in relation to the commission of an offence by a body corporate, means a person who is a director or other officer concerned in the management of the body corporate and who does not prove that —

(a)the offence was committed without the person’s consent or connivance; and

(b)the person exercised all such due diligence to prevent the commission of the offence as ought to have been exercised having regard to the nature of the person’s functions and to all the circumstances.

(7)In subsection (3b) —

workers’ compensation cover means insurance or registration required under the law of a State in respect of liability for statutory workers’ compensation under that law.

[Section 170 amended by No. 44 of 1985 s. 37; No. 33 of 1986 s. 7; No. 86 of 1986 s. 5; No. 96 of 1990 s. 43; No. 34 of 1999 s. 43 and 57; No. 36 of 2004 s. 11; No. 42 of 2004 s. 150; No. 84 of 2004 s. 80.]

171.Insurance offices to furnish certain statements

(1)Every approved insurance office shall within 14 days of the close of each calendar month transmit to WorkCover WA — 

(a)a statement in the prescribed form giving details of each employer who has during the month in question effected or renewed a policy or contract of insurance with the insurance office concerned against liability under this Act;

(b)a statement in the prescribed form giving details of each employer in respect of whom the insurance office concerned has during the month in question marked in its books as lapsed (or, where WorkCover WA has permitted cancellation, cancelled) a policy or contract of insurance under this Act; and

(c)where WorkCover WA has requested the insurance office to do so, a means specified by WorkCover WA for conveying to WorkCover WA, in a machine‑readable form so specified, the details referred to in paragraphs (a) and (b), together with a statement certifying the accuracy of the details so conveyed.

(2)Such a statement shall be signed by a responsible officer of the insurance office concerned.

(3)Subject to subsection (3a), a person, except with the express authority of WorkCover WA, shall not have access to, inspect, or peruse any such statement, and the information contained therein shall be treated as strictly confidential and shall not, except for the purposes of this Act, be disclosed to any person.

Penalty: $2 000.

(3a)A person who is a principal within the meaning of that term in section 175 may, in writing, request WorkCover WA to disclose information as to the currency of a policy or contract of insurance required by this Act for the liability of a person who is, in relation to the person requesting the information, a contractor within the meaning of that term in that section, and WorkCover WA may, where it is satisfied that the information is not to be used for a purpose unconnected with the objects of this Act, in writing, disclose the information requested (which may include information as to the period for which the policy or contract, if any, remains in force).

(4)If any statement required by this section is false in any particular to the knowledge of any person who signs it, that person commits an offence.

Penalty: $2 000.

[Section 171 amended by No. 44 of 1985 s. 38; No. 96 of 1990 s. 44; No. 34 of 1999 s. 57; No. 42 of 2004 s. 125(1) and 150.]

172.WorkCover WA may pass on certain information to insurer

Whenever as a result of an inspection or otherwise it is shown that an employer has either wilfully or inadvertently understated to the employer’s insurer the aggregate amount of wages, salary and other forms of remuneration paid, or the number of employees engaged, and has thereby become liable to pay by way of premium a lesser amount than would otherwise have been payable, then WorkCover WA may —

(a)provide to the insurer information as to the wages, salary, and other forms of remuneration paid by, and the number of employees engaged by, the employer and the category for the purpose of premium rates in which those employees are engaged; and

(b)sue and recover from the employer —

(i)the full amount of the premium that could have been charged; less

(ii)any amount already paid to the insurer in respect of such insurance,

and pay any moneys so recovered, less any reasonable costs incurred in the recovery, to the insurer.

[Section 172 inserted by No. 34 of 1999 s. 45; amended by No. 42 of 2004 s. 150.]

[172A.Repealed by No. 34 of 1999 s. 44.]

173.Worker’s rights against insurer

(1)Where during the currency of a contract between an employer and an insurer in respect of the employer’s liability under this Act to a worker the employer dies, or in the case of a corporation has commenced to be, or is, wound up, ceases to exist or the employer cannot be found or no longer resides in Australia or in a Territory within Australia or has ceased to carry on the business, or business of the kind, to which that contract related, then in any such circumstance — 

(a)the worker has the same rights and remedies against the insurer; and

(b)the insurer has, to the extent of his liability under the contract, the same liability to the worker and the same rights and remedies in respect of the liability,

that the employer otherwise would have had under the contract.

(2)Where, under subsection (1), the liability of the insurer of an employer is less than that which the liability of the employer to the worker would have been, the worker may proceed for the balance against the employer, or in the bankruptcy or liquidation of the employer, or against the personal representative of the employer.

[Section 173 amended by No. 72 of 1992 s. 19.]

174.Payment to worker from General Fund

(1)Where — 

(a)compensation in accordance with this Act is due by an employer to a worker (other than a worker in respect of whom refusal of insurance is permitted pursuant to this Act);

(b)the employer is not insured against his liability to pay compensation to the worker under this Act or the case is one to which section 173(2) applies or the employer’s insurer declines to indemnify the employer against the worker’s claim for compensation; and

(c)the employer does not pay the compensation due within 30 days of the obtaining of an award by the worker or his representative,

WorkCover WA shall pay to the worker from moneys standing to the credit of the General Fund the amount required to satisfy the award and any award for costs in respect thereof.

(1a)Without limiting section 174AB, until the amount paid to a worker under this section is recovered under this section or section 174AA, WorkCover WA may exercise any rights of the employer under this Act in relation to the payment of that award.

[(2)repealed]

(3)Where a worker suffers disability of a kind mentioned in section 32 or 33 and compensation in accordance with this Act is due by an employer to the worker but — 

(a)the identity of the employer’s insurer, if any, is not known; or

(b)the employer’s insurer has ceased to operate in Australia,

an order may be made under Part IIIA that WorkCover WA pay to the worker from moneys standing to the credit of the General Fund the amount required to satisfy an award obtained by the worker or the worker’s representative and any award for costs in respect of the award.

(4)If the identity of the insurer is ascertained after payment has been made under subsection (3), WorkCover WA may sue and recover the amount paid from the insurer, to the extent that its insured may have sued for and recovered that amount under the policy of insurance.

(5)The payment mentioned in subsection (3) shall be made to the worker or the worker’s representative within 30 days of the date of the award.

(5a)Despite any other provisions of this section, if the Commission is satisfied that the reason for the employer not being insured against liability to pay compensation to the worker is that the employer believed on reasonable grounds that the employer could not be liable under this Act in respect of the worker because under section 20 the worker’s employment was not connected with this State, the employer is not liable to the Commission for any amount paid by the Commission under this section.

(6)Where WorkCover WA has paid from the General Fund an amount under subsection (1) WorkCover WA may file in a court of competent jurisdiction a certificate of WorkCover WA showing the amount paid.

(7)No charge is to be made for filing a copy of a certificate under this section.

(8)On filing, the certificate is to be taken to be a judgment of that court for a debt payable by the employer of the worker to WorkCover WA of the same amount as the amount stated in the certificate, and may be enforced accordingly, and section 142(1) of the Supreme Court Act 1935 applies to the amount specified in the certificate as if it were payable under a judgment of the court.

(9)Where by reason of section 175 more than one person is liable as an employer to pay compensation under this Act to a worker, the reference in subsection (8) to the employer is to be read as a reference to each person so liable, and the judgment may be enforced against those persons jointly and severally.

[Section 174 amended by No. 85 of 1986 s. 11; No. 96 of 1990 s. 46; No. 72 of 1992 s. 20; No. 48 of 1993 s. 41; No. 49 of 1996 s. 64; No. 36 of 2004 s. 12; No. 42 of 2004 s. 126(1)‑(3) and (5) and 150.]

174AA.Recovery from responsible officers of body corporate

(1)If none, or some but not all, of an amount paid from the General Fund under section 174 is recovered from a body corporate liable to pay the amount under that section, WorkCover WA may sue and recover the unpaid amount from a responsible officer of the body corporate.

(2)A person is a responsible officer of a body corporate if —

(a)the body corporate has contravened section 160(1) in respect of a policy of insurance or otherwise failed to ensure that it had a sufficient policy of insurance that would have covered the body corporate for the liability to which the payment made under section 174 related (whether or not the body corporate has been proceeded against or convicted of an offence for the contravention);

(b)at the time of the contravention or failure the person was a director or other officer concerned in the management of the body corporate; and