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Accident Compensation (WorkCover Insurance) Act 1993

No. 50 of 1993

TABLE OF PROVISIONS

PART 1—PRELIMINARY

Section 1. Purpose 2. Commencement 3. Definitions 4. Application of Act 5. Construction of Act 6. Act to bind Crown

PART 2—WORKCOVER INSURANCE AND PREMIUMS

7. Compulsory WorkCover insurance 8. Rateable remuneration 9. WorkCover insurance policy

10. Only authorised insurer can issue or renew WorkCover insurance policy 11. Insurers not to refuse insurance 12. Inspection of policies 13. Evidence that employer has WorkCover insurance policy 14. Employer ceasing to exist 15. Premiums order 16. Premiums order—general provisions 17. Premiums to be calculated in accordance with premiums order 18. Estimate of rateable remuneration 19. Estimates of rateable remuneration—transitional 20. Revised estimates of rateable remuneration 21. Adjustment of premium 22. Application by employer to reduce premium 23. Certificate of rateable remuneration 24. Assessment by Authority 25. Default penalty 26. Payment of premiums

PART 3—LICENSING OF WORKCOVER INSURERS

27. Application for issue of licence 28. Determination of application for issue of licence 29. Application for renewal of licence 30. Determination of application for renewal of licence 31. Duration of licence 32. Licence conditions 33. Matters that may be regulated by conditions

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34. Re-insurance 35. Cancellation or suspension of licences 36. Assignment of policies of former insurers 37. Records and evidence relating to licences 38. Liabilities on Commonwealth insurers—special condition 39. Information and records to be supplied by insurers 40. Notification to Authority of certain defaults in relation to insurers 41. Power of Supreme Court to deal with insurers unable to meet liabilities etc. 42. Insurance brokers, agents or intermediaries

PART 4—STATUTORY AND OTHER FUNDS 43. Establishment of statutory funds by the Authority 44. Transfer to or establishment of statutory funds by the authorised insurers 45. Payments into a statutory fund 46. Payments out of a statutory fund 47. Investment of statutory funds 48. Protection of statutory funds 49. Directors of authorised insurer under trustee duty 50. Accounts and returns 51. Audit of accounting records relating to statutory funds 52. Transfers between funds 53. Obligations of authorised insurer under policies unenforceable if authorised

insurer has insufficient funds in statutory fund 54. Obligations of authorised insurer to make statutory contributions if authorised

insurer has insufficient funds in statutory fund

PART 5—UNINSURED EMPLOYERS AND INDEMNITY SCHEME 55. Uninsured Employers and Indemnity Scheme 56. Uninsured Employers and Indemnity Fund 57. Claims against section 55 (2) (a) or 55 (2) (d) employers 58. Registration of section 55 (2) (a) employer 59. Claims against section 55 (2) (b) or 55 (2) (c) employers 60. Authority may require employer to provide information 61. Authority may recover amount in relation to claim 62. General power of Authority in relation to proceedings

PART 6—GENERAL PROVISIONS 63. Transfer of Authority's liability 64. Transfer of rights, obligations and liabilities 65. Reciprocal agreements 66. Related employers 67. Groups 68. Recovery of premium or penalty 69. Books and accounts to be preserved 70. Warrants to enter and search 71. Evidence 72. Regulations

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PART 7—CONSEQUENTIAL AMENDMENTS TO ACCIDENT COMPENSATION ACT 1985

73. Powers of Authority 74. WorkCover Authority Fund 75. Liability to pay compensation 76. Application of Part VII 77. Amendment of Part VII 78. Consequential amendments

PART 8—GENERAL AMENDMENT OF ACCIDENT COMPENSATION ACT 1985

79. Principal Act 80. Definitions 81. Amendment of references to rehabilitation service 82. Contractors 83. New section 10A inserted

10A. Sub-contracting where sub-contractor not a worker 84. WorkCover Authority Fund 85. Annual report 86. Quarterly reports 87. Jurisdiction of Magistrates' Court 88. Costs 89. Conciliation 90. New section 61A inserted

61A. Certain evidence inadmissible in proceedings 91. Occupational rehabilitation services and programs 92. Amendment of section 93D 93. Indexation 94. Compensation for maims 95. Compensation for medical and like services 96. Claim for compensation 97. New section 107A inserted

107A. Provision of information to claimant 98. Amendment of section 112 99. Certificate of incapacity

100. Settlements and interim settlements 101. Repeal of section 120 102. Indemnity by third party 103. Self-insurers: definitions 104. New sections 139A and 139B inserted

139A. Municipal Association of Victoria as self-insurer 139B. MAV to act as insurer '

105. Amendment of section 141 106. New section 141A inserted

141A. Application for approval as self-insurer by MAV 107. Amendment of section 142 108. New section 142A inserted

142A. Approval of MAV as self-insurer

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109. Amendment of Part V 110. Minor amendments

PART 9—AMENDMENT OF OTHER ACTS 111. Amendment of Accident Compensation (WorkCover) Act 1992 112. Amendment of Workers Compensation Act 1958 113. Amendment of Stamps Act 1958

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Victoria

No. 50 of 1993

Accident Compensation (WorkCover Insurance) Act 1993

[Assented to 1 June 1993]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purpose

The purpose of this Act is— (a) to impose the liability to pay compensation under

the Accident Compensation Act 1985 on employers and to require employers to hold WorkCover insurance against that liability; and

(b) to provide for the licensing of authorised insurers for the purpose of issuing and renewing WorkCover insurance policies; and

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Accident Compensation (WorkCover Insurance) Act 1993 s.2 Act No. 50/1993

(c) to provide for the levying and collection of premiums; and

(d) to transfer the existing liability of the Authority to authorised insurers; and

(e) to require authorised insurers to re-insure against their liability with the Authority; and

if) to further improve the operation of the Accident Compensation Act 1985; and

(g) to amend the Accident Compensation Act 1985, the Workers Compensation Act 1958, the Stamps Act 1958 and the Accident Compensation (WorkCover) Act 1992.

2. Commencement

(1) Part 1 and sections 19, 94 (1), 102,110 (1) and 111 (1) come into operation on the day this Act receives the Royal Assent.

(2) The following sections are deemed to have come into operation as follows—

(a) sections 111 (2) and 112 (1) on 19 November 1992;

(b) sections 84 (1), 92, 94 (2), 95,100 and 110 (2) on 1 December 1992;

(c) section 93 on 1 April 1993; (d) sections 87 and 88 on 29 April 1993.

(3) The remaining provisions of this Act come into operation on a day or days to be proclaimed.

3. Definitions

(1) In this Act—

"authorised insurer" means an insurer who is the holder of a licence under Part 3;

"Authority" means the Victorian WorkCover Authority established under the Accident Compensation Act 1985;

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"employer" has the same meaning as it has in section 5 of the Accident Compensation Act 1985;

"exemption limit" means—

(a) in relation to the financial year ending 30 June 1994—$7500; and

(b) in relation to each subsequent financial year—the amount prescribed in the premiums order in respect of that financial year;

"former authorised insurer" means an authorised insurer whose licence has ceased to be in force whether by expiry, cancellation or suspension;

"policy period" means the period of 12 months or such lesser period as may be fixed by an authorised insurer in accordance with guidelines issued by the Authority ending at 4 p.m. on 30 June in any year;

"premiums order" means a premiums order made under section 15;

"rateable remuneration" means remuneration that is subject to a premium within the meaning of section 8;

"remuneration" has the same meaning as it has in section 5 of the Accident Compensation Act 1985;

"statutory fund" means a statutory fund established under section 43 or 44;

"WorkCover Authority Fund" means the Fund established under section 32 of the Accident Compensation Act 1985;

"WorkCover insurance policy" means an insurance policy issued by an authorised insurer in accordance with this Act;

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Accident Compensation (WorkCover Insurance) Act 1993 4 Act No. 5011993

"worker" has the same meaning as it has under the Accident Compensation Act 1985 and includes in the event of the worker's death, the worker's dependants.

(2) Unless inconsistent with the context or subject-matter, words and expressions defined in the Accident Compensation Act 1985 have the same meaning in this Act.

4. Application of Act

This Act does not apply to a self-insurer under Part V of the Accident Compensation Act 1985.

5. Construction of Act

This Act must be read and construed as one with the Accident Compensation Act 1985.

6. Act to bind Crown

This Act binds the Crown, not only in right of the State of Victoria, but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

PART 2—WORKCOVER INSURANCE AND PREMIUMS

7. Compulsory WorkCover insurance

(1) An employer who in any financial year has paid or is liable to pay rateable remuneration exceeding the exemption limit— (a) must obtain and keep in force a policy of

insurance with an authorised insurer in respect of all of the employer's liability under the Accident Compensation Act 1985 and at common law or otherwise in respect of all injuries arising out of or in the course of all employment with that employer on or after 4 p.m. on 30 June 1993; and

(b) must not at any one time keep in force more than one such policy.

Penalty: 100 penalty units.

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Accident Compensation (WorkCover Insurance) Act 1993 Act No. 5011993 s. 7

(2) An employer is liable for an excess on each claim under a policy under sub-section (1) as specified in section 125A (3) of the Accident Compensation Act 1985.

(3) The excess may be increased, reduced or eliminated in accordance with sections 125A (6) and 125A (7) of the Accident Compensation Act 1985.

(4) An employer who in any financial year has paid or is liable to pay rateable remuneration not exceeding the . exemption limit is deemed to have in force a policy of insurance under sub-section (1) with the Authority for the purposes of this Act for that part of the financial year during which the exemption limit is not exceeded.

(5) If an employer registered under section 197 of the Accident Compensation Act 1985 is required to obtain and keep in force a WorkCover insurance policy and has

. not on or before 4 June 1993 advised the Authority of the authorised insurer with which the employer is to obtain a WorkCover insurance policy, the employer is deemed for the first policy period after 4 p.m. on 30 June 1993 to have a WorkCover insurance policy with an authorised insurer specified by the Authority.

(6) If an employer fails to obtain or keep in force a policy of insurance as required in accordance with sub-section (1) in respect of any period, the Authority may recover from the employer in a court of competent jurisdiction as a debt due to the Authority a penalty equal to twice the amount of the premium that would have been payable for the issue of a policy of insurance to the employer in respect of that period.

(7) The Authority may recover any such penalty from an employer whether or not the employer has been proceeded against or been convicted for an offence against sub-section (1) in respect of the employer's failure to obtain or keep in force the policy of insurance.

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8. Rateable remuneration

(1) The remuneration subject to a premium under this Act is remuneration that is paid or payable by an employer on or after 1 July 1993 (whether in respect of services performed or rendered before, during or after that day) and—

(a) is remuneration that is paid or payable in Victoria (not being remuneration so paid or payable in respect of services performed or rendered wholly outside Victoria);

(b) is remuneration that is paid or payable elsewhere than in Victoria in respect of services performed or rendered wholly in Victoria; or

(c) is remuneration that is paid or payable elsewhere than in Victoria in respect of services performed or rendered mainly in Victoria—

except remuneration that is paid on or after 1 July 1993 but was payable before 1 July 1993.

(2) For the purposes of sub-section (1) (a), remuneration that is payable to a person by the employer, but has not been paid (not being remuneration that, under the terms of employment, is payable in Victoria) shall be deemed—

(a) where the remuneration is payable in respect of services performed or rendered wholly in Victoria—to be remuneration payable to that person in Victoria; and

(b) where that remuneration is not payable in respect of services performed or rendered wholly in Victoria and where the remuneration last paid or payable to that person by that employer was included or is required to be included in a return under this Act—to be remuneration payable to that person in Victoria.

(3) For the purposes of this section, where a cheque, bill of exchange, promissory note, money order or postal order issued by a post office or any other instrument is sent or given by an employer to a person or the agent of a person at a place in Australia in payment of

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Accident Compensation (WorkCover Insurance) Act 1993 Act No. 5011993

remuneration, that remuneration shall be deemed to have been paid at that place and to have been paid when the instrument was so sent or given.

9. WorkCover insurance policy

(1) A WorkCover insurance policy must only contain such provisions as are prescribed by this Act and any other provisions that are approved by the Authority.

(2) A policy of insurance must provide that—

(a) the authorised insurer as well as the employer is directly liable to any worker or other person insured under the policy and, in the event of the worker's death, to the dependants or other persons to pay the compensation under the Accident Compensation Act 1985 and at common law or otherwise for which the employer is liable; and

(b) the authorised insurer is bound by and subject to any judgment, order, decision, award or determination given or made against the employer of any such worker in respect of the injury or death for which the compensation or amount is payable.

(3) A liability under a policy of insurance of an authorised insurer to a worker or other person under a provision inserted in the policy under sub-section (2) is enforceable as if the worker or other person were a party to the policy.

(4) A contravention of this section does not annul a policy of insurance or affect the liability of the authorised insurer to the person insured under the policy.

(5) An authorised insurer must not issue a policy of insurance in contravention of this section.


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10. Only authorised insurer can issue or renew WorkCover insurance policy

(1) An insurer who is hot an authorised insurer must not issue or renew a WorkCover insurance policy.


(2) A contravention of sub-section (1) does not annul the policy of insurance issued or renewed by the insurer or affect the liability of the insurer to the person insured under the policy.

(3) A contravention of a condition to which a licence is subject does not annul a WorkCover insurance policy issued or renewed by an authorised insurer or affect the liability of the authorised insurer under the insurance policy.

11. Insurers not to refuse insurance

(1) An authorised insurer must not, except with the consent of the Authority, refuse to issue a policy of insurance to any employer or to renew a policy of insurance issued to an employer.


(2) Without affecting the generality of sub-section (1), the Authority may consent to any such refusal in order that the authorised insurer does not contravene any condition of the licence.

(3) This section does not apply in any case where the employer has not complied with any conditions prescribed by this Act or the regulations in respect of the issue or renewal of the policy of insurance.

12. Inspection of policies

(1) The Authority or a person authorised by the Authority may by notice in writing require an employer—

(a) to produce for inspection the policy of insurance obtained by the employer and in force at such date or between such dates as the notice specifies; and

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Accident Compensation (WorkCover Insurance) Act 1993 Act No. 50/1993 s. 13

(b) to supply such particulars in relation to the policy as the Authority or person may deem necessary.

(2) A worker or other person who has or may have a claim for compensation under the Accident Compensation Act 1985 or at common law or otherwise for which the employer is liable may by notice in writing require the employer to make available for inspection a policy of insurance in force in respect of the worker at the time the injury arose out of or in the course of employment.

(3) A person on whom a notice is served under sub-section (1) or (2) must comply with the notice.


(4) An employer who obtains a policy of insurance must retain the policy in his or her possession in good order and condition until—

(a) there are no longer any workers in respect of whom the policy is in force still employed by the employer; or

(b) the policy is at least 7 years old—

whichever occurs later.


13. Evidence that employer has WorkCover insurance policy

A certificate issued by the Authority or a person authorised by the Authority for the purposes of this section certifying that on any date or during any period specified in the certificate a specified employer had a WorkCover insurance policy with a specified authorised insurer is admissible in any proceedings and is evidence of the particulars certified in the certificate.

14. Employer ceasing to exist

(1) A worker may make an application to the County Court for a declaration under this section.

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(2) The County Court may make a declaration that—

(a) an employer has entered into a policy of insurance with an authorised insurer named in the declaration; and

(b) the employer—

(i) being a natural person, has died, or is permanently resident outside the Commonwealth of Australia and its Territories, or cannot after due inquiry and search be found;

(ii) being a corporation (other than a company which has commenced to be wound up) has ceased to exist;

(iii) being a company, corporation, society, association or other body (other than a company which has commenced to be wound up), was at the time when it commenced to employ the worker incorporated outside the Commonwealth of Australia and its Territories and registered as a foreign company under the laws of any State or Territory of the Commonwealth of Australia and is not at the time of the declaration so registered under any such law; or

(iv) being a company, has commenced to be wound up after entering into the policy of insurance with the authorised insurer.

(3) If a declaration is in force under this section, there is deemed to be a policy of insurance between the authorised insurer referred to in the declaration and the employer of the worker in respect of the liability of the employer to the worker under the Accident Compensation Act 1985 and at common law or otherwise.

15. Premiums order

The Governor in Council may on the recommendation of the Authority by Order in Council make a premiums order—

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(a) specifying the methods to be used in calculating premiums payable by an employer for a WorkCover insurance policy; and

(b) prescribing or specifying any matter or thing required or permitted by this Act to be prescribed or specified by a premiums order.

16. Premiums order—general provisions

(1) A premiums order— (a) must be published in the Government Gazette; (b) takes effect on and from the date on which it is

published or any later date of commencement as may be specified in the order;

(c) applies to a WorkCover insurance policy issued in respect of a policy period commencing on or after the date of commencement of the premiums order.

(2) A premiums order may— (a) apply generally or be limited in its application by

reference to specified exceptions or factors; (b) apply differently according to different factors of

a specified kind; (c) specify different methods of calculation whether

by reference to formulas, scales, tables or other means;

(d) apply, adopt or incorporate (with or without modification) the provisions of any document, code, standard, rule, specification or method whether as formulated, issued, prescribed or published at the time the order is made;

(e) authorise any specified person or body to determine or apply a specified matter or thing.

17. Premiums to be calculated in accordance with premiums order

(1) The premium payable by an employer for a WorkCover insurance policy must be calculated in accordance with the methods specified in the relevant premiums order.

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Accident Compensation (WorkCover Insurance) Act 1993 18 ActNo. 50/1993

(2) An insurer must not demand or receive an amount for the issue or renewal of a WorkCover insurance policy which is different from the premium payable by the employer in accordance with the relevant premiums order.


18. Estimate of rateable remuneration

An employer must within 28 days of receiving a notice from the authorised insurer with which the employer holds, or to which the employer has applied for the issue of, a WorkCover insurance policy, or such longer period as may be specified in the notice, provide to the authorised insurer an estimate of rateable remuneration in a form approved by the Authority which the employer estimates that the employer will be liable to pay to workers during the period not exceeding 12 months specified in the notice.


19. Estimates of rateable remuneration—transitional

(1) The Authority may treat an estimate of rateable remuneration for the financial years commencing 1 July 1992 and 1 July 1993 provided to the Authority by an employer before the commencement of section 18 as if it had been provided by that employer in accordance with section 18.

(2) If the Authority has issued a notice to an employer before the commencement of section 18 requiring the employer to provide to the Authority an estimate of rateable remuneration for the financial years commencing 1 July 1992 and 1 July 1993 and the employer fails to provide the estimate to the Authority within the period specified in the notice, section 24 applies as if the notice had been issued under section 18.

(3) The Authority may issue a further notice to an employer who has failed to provide an estimate of

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rateable remuneration for the financial years commencing 1 July 1992 and 1 July 1993—

(a) requiring the employer to provide the estimate within 7 days of the date of the further notice; and

(b) advising the employer of the provisions of this Act requiring an employer to obtain and keep a WorkCover insurance policy.

20. Revised estimates of rateable remuneration

(1) If as a result of changed circumstances an employer becomes aware that the actual rateable remuneration paid or payable by the employer exceeds or is likely to exceed by more than 20 per cent or such other percentage as is prescribed the estimate of rateable remuneration previously provided by the employer for the whole of the policy period or previously assessed under section 24, the employer must advise the authorised insurer of the changed circumstances and submit a revised estimate of rateable remuneration in a form approved by the Authority within 28 days of becoming aware of the changed circumstances.

(2) If the actual rateable remuneration paid or payable by an employer as at any time before the last 2 months of a policy period exceeds the estimate of rateable remuneration previously provided by the employer for the whole of the policy period, the employer must advise the authorised insurer and submit a revised estimate of rateable remuneration in a form approved by the Authority within 28 days of the actual rateable remuneration exceeding the estimate.

(3) An employer who does not comply with this section is guilty of an offence and liable to a penalty not exceeding 20 penalty units.

21. Adjustment of premium

If the Authority or the authorised insurer considers that the premium payable by an employer should be adjusted because the circumstances specified in

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sub-section (1) or (2) of section 20 apply, the Authority or the authorised insurer may issue a notice of adjusted premium to the employer.

22. Application by employer to reduce premium

Subject to and in accordance with the premiums order, an employer may apply to the authorised insurer for the premium to be adjusted.

23. Certificate of rateable remuneration

(1) An authorised insurer may by notice in writing require an employer to provide a certified statement of rateable remuneration paid or payable by the employer in a form approved by the Authority during a specified policy period to workers employed by the employer to the authorised insurer within 28 days of receiving the notice or such longer period as is specified in the notice.

(2) The Authority may by notice in writing require an employer who does not hold a WorkCover insurance policy to provide a certified statement of rateable remuneration paid or payable by the employer in a form approved by the Authority during a period specified in the notice to the Authority within 28 days of receiving the notice or such longer period as is specified in the notice.

(3) An employer who does not comply with sub-section (1) or (2) or who provides an incorrect statement is guilty of an offence and liable to a penalty not exceeding 20 penalty units.

(4) The Authority may assess the rateable remuneration paid or payable by an employer to which sub-section (3) applies during the specified policy period and issue a notice of adjusted premium to the employer.

24. Assessment by Authority

If an employer fails to provide an estimate when required to do so under section 18, or the Authority considers that an estimate provided by the employer is incorrect, the Authority may—

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Accident Compensation (WorkCover Insurance) Act 1993 Act No. 5011993 s.25

(a) assess the amount of rateable remuneration paid or payable by the employer; and

(b) calculate the premium payable by the employer; and

(c) serve a notice on the employer specifying the amount of premium payable.

25. Default penalty

(1) I f -

(a) an employer does not comply with section 18, 19 (3), 20 or 23; or

(b) an employer provides an incorrect statement under section 23; or

(c) the amount specified in a certified statement of rateable remuneration under section 23 (1) or assessed under section 23 (3) is more than 20 per cent or such other percentage as is prescribed higher than the previous estimate of rateable remuneration (if any) provided by the employer—

the employer is upon being served by the Authority or the authorised insurer with a notice under this section, liable to pay in addition to the difference between the premium that should have been payable by the employer and the premium previously estimated or assessed (if any) a default penalty of an amount equal to that difference.

(2) A default penalty under sub-section (1) is due and payable within 28 days of the date of the notice.

(3) The Authority or, with the approval of the Authority in any particular case, an authorised insurer, may remit the whole or any part of any default penalty imposed under this section.

26. Payment of premiums

(1) Subject to sub-sections (2) and (3), the premium calculated in accordance with this Part is due and

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payable by the employer at the commencement of the policy period.

(2) An employer may elect to pay the premium due under a WorkCover insurance policy by monthly instalments in arrears or quarterly or annual instalments in advance in accordance with the premiums order.

(3) An authorised insurer may defer the payment of the whole or part of the premium to a date or dates after the commencement of the policy period in accordance with guidelines issued by the Authority.

(4) The Authority or the authorised insurer may by notice in writing to the employer at any time after the commencement of a policy period adjust the amount of premium in accordance with the premiums order and the adjusted amount is the premium for the purposes of this Act.

PART 3—LICENSING OF WORKCOVER INSURERS

27. Application for issue of licence

(1) A corporation incorporated in Victoria may apply to the Authority for the issue of a licence to be an authorised insurer.

(2) An application must be in the form approved by the Authority and accompanied by such documents as may be determined by the Authority.

(3) An application must be accompanied by the application fee (if any) fixed by the Authority.

28. Determination of application for issue of licence

(1) In considering whether to grant or refuse an application for the issue of a licence, the Authority may have regard to—

(a) the suitability of the applicant, including the directors of the applicant;

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(b) the financial viability, including the amount of paid up share capital, of the applicant or any related corporation;

(c) the provisions of the memorandum and articles of association of the applicant;

(d) whether the applicant or any related corporation within the meaning of the Corporations Law has a history of proper and orderly management of claims in any other insurance or like business;

(e) the efficiency and effectiveness of the WorkCover system generally;

(/") any other matters the Authority considers appropriate.

(2) For the purposes of sub-section (1) (c), the Authority may approve a model memorandum and articles of association for corporations applying for a licence.

(3) Without limiting the generality of sub-section (1), the Authority may refuse an application for a licence by a corporation if—

(a) the corporation is authorised by its memorandum and articles of association to carry on any business other than WorkCover insurance business in Victoria; or

(b) the applicant is not a wholly owned subsidiary of a corporation which holds an authority granted by the Insurance and Superannuation Commission to carry on insurance business under the Commonwealth Insurance Act 1973; or

(c) the majority of the directors of the corporation are not the directors of any related corporation within the meaning of the Corporations Law which controls the composition of the board of directors of the corporation.

(4) Notwithstanding anything to the contrary in the Administrative Law Act 1975, the Authority may refuse an application for any reason it considers appropriate and is not required to give the reasons for its decision.

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(5) The Authority must, as far as practicable, give an authorised insurer an opportunity to make representations on the matter.

29. Application for renewal of licence

(1) A corporation licensed to be an authorised insurer may apply to the Authority for the renewal of the licence.

(2) An application must be in the form approved by the Authority and accompanied by such documents as may be determined by the Authority.

(3) An application must be accompanied by the renewal fee (if any) fixed by the Authority.

30. Determination of application for renewal of licence

(1) In considering whether to grant or refuse an application for the renewal of a licence, the Authority may have regard to—

(a) any of the matters specified in section 28 (1);

(b) whether the applicant has complied with this Act and any conditions to which the licence is subject.

(2) Notwithstanding anything to the contrary in the Administrative Law Act 1975, the Authority may refuse an application for any reason it considers appropriate and is not required to give the reasons for its decision.

(3) Without affecting the generality of sub-section (2), the Authority may refuse an application for reasons that relate to the WorkCover system generally, whether or not the reasons relate to the efficiency and conduct of the authorised insurer.

(4) The Authority must, as far as practicable, give an authorised insurer whose licence it does not propose to renew an opportunity to make representations on the matter.

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31. Duration of licence

(1) A licence continues in force for the period ending on 30 June being not less than 12 months and not exceeding 24 months specified in the licence.

(2) A licence may be cancelled or suspended by the Authority in accordance with this Part.

32. Licence conditions

(1) A licence is subject to—

(a) such conditions as may be prescribed by this Act; and

(b) such conditions (not inconsistent with this Act) as may be imposed by the Authority—

(i) on the granting or renewal of the licence; or

(ii) at any time during the currency of the licence.

(2) The Authority may, by notice served on an authorised insurer, impose conditions (or further conditions) to which the licence is to be subject or vary any conditions imposed on the licence by the Authority.

(3) A condition to which a licence is subject has effect whether or not it is endorsed on the licence.

(4) An authorised insurer must comply with any condition to which the licence is subject.


33. Matters that may be regulated by conditions

(1) Without limiting the generality of section 32, the conditions to which a licence may be subject include conditions for or with respect to—

(a) requiring the authorised insurer to undertake a specified amount of WorkCover insurance or of WorkCover insurance of a specified kind, class or category;

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(b) preventing an authorised insurer from undertaking more than a specified amount of WorkCover insurance or of WorkCover insurance of a specified kind, class or category;

(c) requiring a charge or other security to be taken by the Authority in respect of the assets of an authorised insurer for the purpose of securing the payment of the insurer's liabilities for the payment of compensation under the Accident Compensation Act 1985 or at common law or otherwise;

(d) requiring an authorised insurer to provide WorkCover insurance only to a specified class or classes of employers;

(e) preventing an authorised insurer from delegating to or authorising or appointing an insurance broker, agent or intermediary to act as a claims manager for or on behalf of the authorised insurer;

(f) the procedures that are to apply in respect of the cancellation or suspension of the licence under section 35.

(2) Conditions may be imposed on a licence— (a) for the purpose of promoting an equitable

distribution of high risk insurance business among authorised insurers;

(b) for the purpose of ensuring compliance with the obligations of the authorised insurer;

(c) for the purpose of preserving premiums paid for policies of insurance;

(d) for the purpose of the efficiency or effectiveness of the WorkCover system generally;

(e) for any other purpose that is not inconsistent with this Act.

34. Re-insurance

(1) The Authority must not issue a licence to a corporation or renew a licence of an authorised insurer unless the corporation or authorised insurer enters into an

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arrangement with the Authority to re-insure the whole of the liability of the corporation or authorised insurer under WorkCover insurance policies to be issued or renewed by the corporation or authorised insurer and the liability transferred to the corporation or authorised insurer under section 63.

(2) The arrangement must be in a form approved by the Authority and must provide for—

(a) the payment to the WorkCover Authority Fund from the statutory fund of the authorised insurer of an amount equal to the amounts specified in paragraphs (a), (b) and (c) of section 45 as consideration for re-insurance by the Authority;

(b) the payment from the WorkCover Authority Fund to the statutory fund of the authorised insurer of an amount equal to the amounts specified in paragraphs (a) and (b) of section 46;

(c) any other matter determined by the Authority.

35. Cancellation or suspension of licences

(1) The Authority may cancel or suspend a licence by notice served on the authorised insurer.

(2) Notwithstanding anything to the contrary in the Administrative Law Act 1975, the Authority may cancel or suspend a licence for any reason it considers appropriate and is not required to give the reasons for its decision.

(3) Without affecting the generality of sub-section (2), the Authority may cancel or suspend a licence for reasons that relate to the WorkCover system generally, whether or not the reasons relate to the efficiency and conduct of the authorised insurer.

(4) The Authority must, as far as practicable, give an authorised insurer whose licence it proposes to cancel or suspend an opportunity to make representations on the matter.

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(5) A licence surrendered by an authorised insurer is cancelled if and when the Authority approves of the surrender.

36. Assignment of policies of former insurers

(1) Upon a licence ceasing to be in force, the Authority must assign all or any class of WorkCover insurance policies of a former authorised insurer to an authorised insurer nominated by the Authority.

(2) The Authority may upon the application of an authorised insurer assign all or any class of WorkCover insurance policies of the authorised insurer to another authorised insurer specified by the authorised insurer.

(3) WorkCover insurance policies may be assigned under this section by notice served by the Authority on the former authorised insurer concerned;

(4) All money standing to the credit of the statutory fund of the former authorised insurer to which the WorkCover insurance policies relate is to be paid to the statutory fund of the authorised insurer to which the policies are assigned, and may be recovered by the Authority or that authorised insurer as a debt in a court of competent jurisdiction.

(5) If the WorkCover insurance policies of a former authorised insurer are not all assigned to a particular authorised insurer, the Authority must determine the respective amounts to be paid from the statutory fund of the former authorised insurer to the statutory funds of the authorised insurers to which the policies are assigned.

(6) If the amount to be paid from a statutory fund of a former authorised insurer includes any investment, the Authority may require the former authorised insurer to execute the necessary documents to enable the investment to be transferred under this section.

(7) An assignment of a WorkCover insurance policy under this section—

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(a) transfers the rights, obligations and liabilities under the policy of the former authorised insurer to the authorised insurer to which the policy is assigned; and

(b) does not otherwise affect the rights, obligations or liabilities acquired, accrued or incurred under the policy.

(8) For the purposes of this Act, any such assigned policy is to be taken to have been issued or renewed by the authorised insurer to which it is assigned.

(9) If a WorkCover insurance policy is assigned under this section, the former authorised insurer concerned must, subject to any directions of the Authority, provide the authorised insurer to which the policy is assigned with—

(a) copies of all documents relating to the policy or to claims under it; and

(b) copies of any accounting records (within the meaning of section 50) relating to the statutory fund concerned.


37. Records and evidence relating to licences

(1) The Authority must keep records in relation to all licences granted by the Authority, including particulars of—

(a) the granting, refusal, duration, conditions, cancellation and suspension of licences; and

(b) such other matters relating to licences as the Authority considers appropriate.

(2) A certificate issued by the Authority certifying that on any date or during any period specified in the certificate the particulars set forth in the certificate as to any of the matters referred to in sub-section (1) did or did not appear on or from the records of the Authority is admissible in any proceedings and is evidence of the particulars certified in the certificate.

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38. Liabilities on Commonwealth insurers—special condition

(1) In this section—

"Commonwealth insurer" means a company authorised to carry on insurance business under the Insurance Act 1973 of the Commonwealth or a company registered under the Life Insurance Act 1945 of the Commonwealth.

(2) It is a condition of a licence that an authorised insurer or former authorised insurer will not, without the approval of the Authority and the concurrence of the Treasurer of the Commonwealth, enter into a contract or arrangement whereby a Commonwealth insurer is or may become liable to pay any money to or on behalf of the authorised insurer or former authorised insurer.

(3) A contract or an arrangement is not invalid merely because it has been entered into in contravention of sub-section (2).

(4) The Supreme Court may, on the application of the Authority or the Treasurer of the Commonwealth, declare invalid a contract or arrangement entered into in contravention of sub-section (2) if satisfied that the declaration will not prejudice the rights arising out of the contract or arrangement of any person who entered into the contract or arrangement in good faith and without knowledge of the contravention.

39. Information and records to be supplied by insurers

(1) The Authority may require an authorised insurer or former authorised insurer—

(a) to disclose to the Authority specified information relating to the business and financial position of the authorised insurer or former authorised insurer or of any corporation which is a related corporation; or

(b) to forward to the Authority, or make available for inspection, specified records, or copies or extracts from specified records, kept by the authorised

902


insurer or former authorised insurer or by any corporation which is a related corporation.

(2) A requirement under this section must— (a) be made in writing and served on the authorised

insurer or former authorised insurer; and (b) specify the manner in which and the time within

which the requirement is to be complied with.

(3) The manner in which a requirement is to be complied with may include the supply to the Authority of a certificate by a registered tax agent, a registered company auditor or an actuary approved by the Authority as to the correctness of any specified information or specified records or copies of or extracts from specified records.

(4) Unless the authorised insurer or former authorised insurer satisfies the court that it is not within its power to comply with the requirement, an insurer who fails to comply with the requirement is guilty of an offence and liable to a penalty not exceeding 100 penalty units.

40. Notification to Authority of certain defaults in relation to insurers

(1) An authorised insurer or former authorised insurer must notify the Authority in writing of any of the following events or things within 21 days after the event or thing happens (whether within or outside the State)— (a) any default by the authorised insurer or former

authorised insurer or a related corporation in the payment of principal or interest under any debenture issued by the authorised insurer or former authorised insurer or corporation;

(b) the appointment of a liquidator, receiver or manager of the property of the authorised insurer or former authorised insurer or a related corporation;

(c) that the authorised insurer or former authorised insurer or a related corporation has resolved by

903


special resolution that it be wound up voluntarily or by a court;

(d) that a person claiming to be a creditor by assignment or otherwise of the authorised insurer or former authorised insurer or a related corporation for a sum exceeding $1,000 then due has served on the authorised insurer or former authorised insurer or corporation by leaving at its registered office a demand requiring the authorised insurer or former authorised insurer or corporation to pay the sum so claimed to be due, and the authorised insurer or former authorised insurer or corporation has for 3 weeks thereafter failed to pay the sum or to secure or compound it to the satisfaction of the person claiming to be a creditor;

(e) the return unsatisfied in whole or part of execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the authorised insurer or former authorised insurer or a related corporation;

(f) the receipt by the authorised insurer or former authorised insurer or a related corporation or the giving, or causing to be given, by the authorised insurer or former authorised insurer or corporation, of any Part A, B, C or D statement as defined for the purposes of the Corporations Law;

(g) the making of an order by any court for the winding-up of the authorised insurer or former authorised insurer or a related corporation;

(h) the receipt by the authorised insurer or former authorised insurer or a related corporation of any notice of an application for an order by any court for the winding-up of the authorised insurer or former authorised insurer or corporation.


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41. Power of Supreme Court to deal with insurers unable to meet liabilities etc.

(1) The Supreme Court may, on the application of the Authority, make such orders as the Supreme Court considers necessary or desirable for the purpose of protecting the interests of— (a) the holders of WorkCover insurance policies

issued or renewed by an authorised insurer or a former authorised insurer; and

(b) the workers to whom those policies apply; and (c) in the case of the liability transferred to an

authorised insurer under section 63, the Authority.

(2) The Supreme Court may make such an order if it is satisfied that the authorised insurer or former authorised insurer— (a) is not able to meet the insurer's liabilities under

the WorkCover insurance policies or may not be able to do so; or

(b) has acted or may act in a manner that is prejudicial to the interests of the holders of the WorkCover insurance policies or the workers to whom those policies apply; or

(c) is not able to meet the insurer's liability under section 63 or may not be able to do so.

(3) Without limiting the generality of sub-section (1), the Supreme Court may make the following orders— (a) an order regulating the administration and

payment of claims under the WorkCover insurance policies;

(b) an order prohibiting or regulating the transfer or disposal of, or other dealing in, the assets of the authorised insurer or former authorised insurer;

(c) if the authorised insurer or former authorised insurer is a corporation—an order requiring it to discharge its liabilities under the WorkCover insurance policies or under section 63 out of the assets of the corporation and the assets of any related corporation;

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(d) if the authorised insurer or former authorised insurer is a corporation—an order appointing a receiver or receiver and manager, having such powers as the Supreme Court orders, of the property or of part of the property of the corporation or of any related corporation.

(4) If an application is made to the Supreme Court for an order under sub-section (1), the Supreme Court may, if in its opinion it is desirable to do so, before considering the application, grant an interim order, being an order of the kind applied for that is expressed to have effect pending the determination of the application.

(5) If an application is made to the Supreme Court for an order under sub-section (1), the Supreme Court must not require the Authority or any other person to give any undertaking as to damages as a condition of granting an interim order.

(6) If the Supreme Court has made an order under this section, the Supreme Court may, on application by the Authority or by any person affected by the order, make a further order rescinding or varying the first-mentioned order.

(7) A person must not contravene, whether by act or omission, an order made by the Supreme Court under this section that is applicable to the person.

Penalty: 20 penalty units or imprisonment for 6 months, or both.

(8) This section does not apply in respect of a corporation which is in the course of being wound up.

42. Insurance brokers, agents or intermediaries

(1) An authorised insurer must send any cover note, WorkCover insurance policy or renewal notice or any notice under any WorkCover insurance policy direct to the employer concerned and not to an insurance broker, agent or intermediary.


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(2) An employer must pay any premium under a WorkCover insurance policy direct to the authorised insurer and not to an insurance broker, agent or intermediary.


PART 4—STATUTORY AND OTHER FUNDS

43. Establishment of statutory funds by the Authority (1) This section applies until a day to be fixed by

proclamation published in the Government Gazette for the purposes of this section which in this section and section 44 is referred to as the "appointed day".

(2) The Authority must establish and maintain a statutory fund for each authorised insurer.

(3) An amount held in a statutory fund maintained by the Authority may be invested in any manner approved by the Treasurer under section 32 (6) of the Accident Compensation Act 1985.

44. Transfer to or establishment of statutory funds by authorised insurers

(1) This section applies on and after the appointed day.

(2) On the appointed day the maintenance of a statutory fund is by virtue of this section transferred to the authorised insurer in respect of which the statutory fund was established to be maintained by the authorised insurer in accordance with this Part.

(3) An authorised insurer which is issued with a licence on or after the appointed day must establish and maintain a statutory fund in accordance with this Part.

45. Payments into a statutory fund

The following must be paid into the statutory fund of an authorised insurer—

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(a) premiums received by the authorised insurer for WorkCover insurance policies written by the authorised insurer;

(b) any other amount or penalty paid to the authorised insurer in connection with WorkCover insurance policies;

(c) any income from the investment of money held in the statutory fund;

(d) the payment specified in section 34 (2) (b);

(e) any amount transferred to the statutory fund from another statutory fund or the WorkCover Authority Fund in accordance with this Part.

46. Payments out of a statutory fund

Only the following are to be paid out of the statutory fund of an authorised insurer— (a) any payment relating to a claim for which the

authorised insurer is liable; (b) any payment of management fees in accordance

with the licence conditions; (c) the payment specified in section 34 (2) (a); (d) any amount to be transferred from the statutory

fund to another statutory fund or the WorkCover Authority Fund in accordance with this Part.

47. Investment of statutory funds

(1) An amount held in a statutory fund maintained by an authorised insurer may be invested in any manner approved by the Treasurer under section 32 (6) of the Accident Compensation Act 1985 subject to any direction given to the authorised insurer by the Authority.

(2) Without limiting sub-section (1), the Authority may direct an authorised insurer to do either or both of the following— (a) to invest only in specified securities or not to

invest in specified securities;

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(b) to invest a specified percentage of the statutory fund in specified securities.

(3) An amount held in a statutory fund maintained by an authorised insurer must not be invested in or lent to a related corporation or a person who is associated with the authorised insurer within the meaning of the Corporations Law.

48. Protection of statutory funds

(1) The assets in which a statutory fund maintained by an authorised insurer is invested must be kept distinct and separate from all other assets of the authorised insurer.

(2) The assets in which a statutory fund is invested must not be mortgaged or charged.

(3) A transaction is not invalid merely because it has been entered into in contravention of sub-section (2).

(4) The Supreme Court may, on the application of the Authority, declare invalid a transaction entered into in contravention of sub-section (2) if satisfied that the declaration will not prejudice the rights arising out of the transaction of any person who entered into the transaction in good faith and without knowledge of the contravention.

(5) In this section a reference to a mortgage or charge includes a reference to an agreement to execute or give a mortgage or charge, whether on demand or otherwise.

49. Directors of authorised insurer under trustee duty

(1) A director of an authorised insurer is under the same liability, in the event of a contravention of section 45, 46, 47 or 48 in respect of a statutory fund, as the director would be if—

(a) the director had been a trustee under a trust for the execution of the provisions of those sections; and

(b) the appropriate policy holders had been beneficiaries of such a trust.

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(2) This section does not apply if the director proves that— (a) the contravention occurred without the knowledge

of the director; or (b) the director was not in a position to influence the

conduct of the insurer in relation to the contravention; or

(c) the director, being in such a position, used all due diligence to prevent the contravention.

(3) The Authority may institute proceedings under this section on behalf of the appropriate policy holders.

(4) In this section a reference to a director includes any person who for the purposes of the Corporations Law is deemed to be a director of the company.

50. Accounts and returns

(1) An authorised insurer must keep such accounting and other records in relation to the business or financial position of the authorised insurer (including records in relation to the statutory fund) as are required by the Authority.

(2) An authorised insurer must lodge with the Authority returns in relation to the business or financial position of the insurer (including returns in relation to the statutory fund) in such form, containing such particulars and accompanied by such documents as may be directed by the Authority by notice served on the authorised insurer.

(3) Returns must be lodged as the Authority directs by notice served on the authorised insurer.

(4) The Authority may require returns and documents accompanying returns to be certified by an auditor.

> 51. Audit of accounting records relating to statutory funds

(1) The Authority may appoint an appropriately qualified person to audit or inspect, and report to the Authority on, the accounting and other records relating to the business or financial position of an authorised insurer including the records in relation to the statutory fund.

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(2) The Authority may appoint an appropriately qualified person to make an actuarial investigation of the financial position of the statutory fund (including a valuation of its liabilities on such basis as the Authority determines), and to report on the results of the investigation.

(3) A person so appointed by the Authority is, for the purpose of performing any functions under sub-section (1) or (2) entitled to inspect the accounting and other records of an authorised insurer.

(4) An authorised insurer must provide all reasonable assistance necessary for the performance of those functions.

(5) A person must not wilfully obstruct or delay a person performing a function under this section.

(6) A person performing functions under this section has qualified privilege in proceedings for defamation in respect of any statement that the person makes orally or in writing in the course of the performance of those functions.

52. Transfers between funds

(1) The Authority may transfer, or direct the transfer of, amounts between the WorkCover Authority Fund and a statutory fund or between statutory funds.

(2) The Authority must exercise the power conferred by sub-section (1) in such equitable manner as the Authority determines having regard to the efficiency of the WorkCover system and the financial position of the WorkCover Authority Fund and the statutory funds.

(3) An authorised insurer must comply with a direction given to the authorised insurer under this section.

(4) If an amount is not paid in accordance with a direction under this section, the amount may be recovered by the Authority as a debt in a court of competent jurisdiction.

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53. Obligations of authorised insurer under policies unenforceable if authorised insurer has insufficient funds in statutory fund

(1) An authorised insurer who is liable to make any payment under this Act may postpone that payment while there is insufficient money to make the payment in the statutory fund.

(2) A person who is not paid any amount to which the person is entitled because of the operation of any such postponement may apply to the Authority for payment of that amount.

(3) The Authority is required to pay that amount to the applicant out of the WorkCover Authority Fund unless the right of the authorised insurer to postpone the payment has ceased.

(4) The authorised insurer is required to reimburse the Authority for any such payment made by the Authority as soon as the statutory fund of the authorised insurer contains sufficient money to allow the authorised insurer to do so.

(5) If the Authority is satisfied that any deficiency in the statutory fund of an authorised insurer was caused (wholly or partly) by a failure of the authorised insurer to comply with this Act or the regulations or by a breach of a director's duty under section 49, the Authority may require the authorised insurer or its holding corporation to reimburse the Authority from any of its funds (other than the statutory fund).

(6) If an amount that an authorised insurer is required to reimburse the Authority is not paid by the date directed by the Authority—

(a) the amount may be recovered by the Authority as a debt in a court of competent jurisdiction from the authorised insurer or its holding corporation; and

(b) the authorised insurer is not entitled, while the amount remains unpaid, to make the payments

912


specified in section 46 (b) from the statutory fund; and

(c) the Authority may offset the amount against any amount that is otherwise payable to the authorised insurer.

(7) Any amount reimbursed to the Authority under this section is to be paid into the WorkCover Authority Fund.

54. Obligations of authorised insurer to make statutory contributions if authorised insurer has insufficient funds in statutory fund

(1) An authorised insurer which is liable to make any contribution to the Uninsured Employers and Indemnity Fund may postpone that payment while there is insufficient money to make that payment in the statutory fund.

(2) The authorised insurer is required to make the contribution as soon as the statutory fund contains sufficient money to allow the authorised insurer to do so.

(3) If the Authority is satisfied that any deficiency in the statutory fund of a authorised insurer was caused (wholly or partly) by a failure of the authorised insurer to comply with this Act or the regulations or by a breach of a director's duty under section 49, the Authority may require the authorised insurer or its holding corporation to pay the contribution from any of its funds (other than the statutory fund).

(4) If an amount that an authorised insurer is required to pay under sub-section (3) is not paid by the date directed by the Authority— (a) the amount may be recovered by the Authority in

the manner authorised by this Act for the recovery of the contribution concerned from the authorised insurer or its holding corporation; and

(b) the authorised insurer is not entitled, while the amount remains unpaid, to make the payments specified in section 46 (b) from the statutory fund; and

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(c) the Authority may offset the amount against any amount that is otherwise payable to the authorised insurer.

PART 5—UNINSURED EMPLOYERS AND INDEMNITY SCHEME

55. Uninsured Employers and Indemnity Scheme

(1) There is established a scheme called the Uninsured Employers and Indemnity Scheme.

(2) A claim may be made under the Scheme by any person who considers that he or she has a claim in respect of an injury to a worker against an employer—

(a) whose rateable remuneration at the time of the relevant injury did not exceed the exemption limit; or

(b) who cannot be identified; or

(c) who cannot be found, is dead or has been wound up and was not the holder of a WorkCover insurance policy at the time of the relevant injury; or

(d) who exists and can be found but who was not the holder of a WorkCover insurance policy at the time of the relevant injury.

56. Uninsured Employers and Indemnity Fund

(1) The Authority must establish and maintain a fund called the Uninsured Employers and Indemnity Fund.

(2) The Authority may hold the Uninsured Employers and Indemnity Fund in a common bank account or accounts with other funds maintained by the Authority.

(3) The following must be paid into the Uninsured Employers and Indemnity Fund—

(a) any contributions determined by the Authority having regard to the amount of premiums received by each authorised insurer;

914


(b) an amount determined by the Authority to be paid out of the WorkCover Authority Fund;

(c) the registration fees paid by employers under section 58;

(d) any amount recovered or penalty received from uninsured employers;

(e) any amount recovered from authorised insurers or third parties in relation to claims against the Uninsured Employers and Indemnity Scheme;

( /) any income from the investment of money held in the Fund.

(4) The following are to be paid out of the Uninsured Employers and Indemnity Fund—

(a) payments towards claims made against the Uninsured Employers and Indemnity Scheme;

(b) payments of costs and expenses in relation to claims made against the Uninsured Employers and Indemnity Scheme;

(c) payments of expenses incurred by or on behalf of the Authority in administering the Uninsured Employers and Indemnity Scheme and Fund.

(5) The Authority may invest any amount held in the Uninsured Employers and Indemnity Fund separately or in the same investments as amounts held in the statutory funds maintained by the Authority or the WorkCover Authority Fund.

57. Claims against section 55 (2) (a) or 55 (2) (d) employers

(1) A claim for compensation against an employer whose rateable remuneration at the time of the relevant injury did not exceed the exemption limit or who was not the holder of a WorkCover insurance policy at the time of the relevant injury must first be given to or served on the employer.

(2) The employer must forward the claim to the Authority within 5 days of receiving it.

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(3) If a person making a claim for compensation becomes aware that the employer— (a) has not complied or is not likely to comply with

sub-section (2); or (b) is refusing to receive the claim—

that person may lodge the claim with the Authority.

(4) Division 3 of Part IV of the Accident Compensation Act 1985 applies in relation to the determination of the claim from the time that the claim is received by the Authority.

58. Registration of section 55 (2) (a) employer

(1) An employer to whom section 55 (2) (a) applies must apply to the Authority to be registered and must submit the registration fee fixed in the premiums order.

(2) An employer who fails to comply with sub-section (1) is to be treated as being uninsured during the relevant policy period.

59. Claims against section 55 (2) (b) or 55 (2) (c) employers

(1) A claim for compensation against an employer who— (a) cannot be identified after the claimant has taken

reasonable steps to identify the relevant employer; or (b) cannot be found after the claimant has taken

reasonable steps to find the employer or the employer is dead or has been wound up and who was not the holder of a WorkCover insurance policy at the time of the injury or death—

may be lodged with the Authority.

(2) The Authority may require a person lodging a claim under sub-section (1) to provide further information to the Authority.

(3) Subject to sub-section (4), Division 3 of Part IV of the Accident Compensation Act 1985 applies in relation to the determination of the claim from the time that is 7 days after the claim is received by the Authority.

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(4) If the relevant employer is identified and was at the time of the injury or death the holder of a WorkCover insurance policy, Division 3 of Part IV of the Accident Compensation Act 1985 applies in relation to the determination of the claim from the time that the employer is identified.

60. Authority may require employer to provide information

(1) The Authority may by notice in writing require an employer or a person whom the Authority suspects is an employer to provide to the Authority within the period specified in the notice any information specified in the notice which may be in the employer's or that person's possession and is required by the Authority in order to deal with a claim under this Part.

(2) A person must comply with a notice under sub-section (1). Penalty: 20 penalty units.

61. Authority may recover amount in relation to claim

(1) The Authority may serve a notice in writing on a person who, in the opinion of the Authority, was— (a) in respect of an injured worker to or in respect of

whom compensation has been paid or is payable under the Uninsured Employers and Indemnity Scheme, an employer at the relevant time; or

(b) the authorised insurer of such an employer—

requiring that person, within a period specified in the notice, to reimburse to the Authority an amount (not being an amount exceeding the amount of the compensation paid or payable) specified in the notice.

(2) The Authority may, by instrument in writing, waive the liability of an employer under sub-section (1) to reimburse the Authority an amount, if the Authority is satisfied that—

(a) the amount is beyond the capacity of the employer to pay; or

917


(b) the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time; or

(c) the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy; or

(d) the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up; or

(e) the employer, being a corporation, has been dissolved; or

(/") it would not be commercially feasible for the Authority to attempt to recover the amount.

(3) A person on whom a notice has been served under sub-section (1) in respect of an injured worker may, within the period specified in the notice, apply to the appropriate court having jurisdiction in relation to the claim under the Accident Compensation Act 1985 for a determination as to the person's liability under this Act.

(4) The Authority may recover an amount specified in a notice served under sub-section (1) if an application has not been made under sub-section (3) from the person to whom the notice was given as a debt in a court of competent jurisdiction.

62. General power of Authority in relation to proceedings

(1) I f -

(a) a claim under the Uninsured Employers and Indemnity Scheme has been made and the employer does not appear and defend the application for an award of compensation; or

(b) an award of compensation has, prior to the making of the claim, been obtained in default of appearance by the employer, or by consent of the worker and trie employer; or

(c) the Authority for any reason thinks fit—

918


the Authority may cause to be made such inquiries as it thinks fit to determine the genuineness of the grounds on which the award is sought or was based.

(2) The court having jurisdiction in relation to the matter under the Accident Compensation Act 1985 may adjourn an application referred to in sub-section (1) or, if an award has been made, may reopen the proceedings and order some fit person to take and defend the proceedings in substitution for the employer, and for those purposes all the rights of the employer shall be subrogated to that person.

(3) At any hearing of an application under this section, the Authority may appear before the court and exercise in respect of any matters and questions arising out of the application the same powers, rights and authorities as an employer may exercise in respect of a claim between a worker and an employer under this Act.

PART 6—GENERAL PROVISIONS

63. Transfer of Authority's liability ,

The liability of the Authority in respect of injuries to a worker arising out of or in the course of employment after 4 p.m. on 31 August 1985 but before 4 p.m. on 30 June 1993 under the Accident Compensation Act 1985 to pay compensation or as an insurer under that Act is by virtue of this section transferred to authorised insurers on the following basis—

(a) to the authorised insurer which has issued or renewed the current WorkCover insurance policy of an employer, if the injury to the worker arose out of or in the course of employment with that employer after 4 p.m. on 31 August 1985 but before 4 p.m. on 30 June 1993;

(b) if paragraph (a) does not apply, to an authorised insurer determined by the Authority.

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64. Transfer of rights, obligations and liabilities K (1) The liability of an authorised insurer to indemnify an

employer under a WorkCover insurance policy and the rights, obligations and liabilities of an authorised insurer under that policy are by virtue of this section transferred to each subsequent authorised insurer which is for the time being liable to indemnify the employer under a current WorkCover insurance policy.

(2) The Authority must at such intervals as it considers appropriate transfer or direct the transfer of funds between statutory funds of authorised insurers to meet liabilities assigned under sub-section (1) or section 63.

65. Reciprocal agreements

(1) The Authority may enter into an agreement with a person or body constituted by or under the law of another State or Territory or of the Commonwealth relating to the payment of premium or other amounts in respect of remuneration paid or payable in respect of services performed or rendered partly in Victoria and partly in the corresponding state.

(2) An agreement under sub-section (1) may provide—

(a) that the provisions of the Act apply and the provisions of the law of the corresponding state do not apply in respect of remuneration paid or payable in respect of services performed or rendered partly in Victoria and partly in the corresponding state; or

(b) that the provisions of the law of the corresponding state apply and the provisions of this Act do not apply in respect of such remuneration.

66. Related employers

(1) For the purposes of this Act, an employer that is a corporation is related to another corporation (whether or not that other corporation is an employer)—

920


(a) if the employer and the other corporation are, by reason of the Corporations Law, to be deemed to be related to each other; or

(b) if the directors of the employer are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the directors of the other corporation; or

(c) if the directors of the other corporation are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the directors of the employer; or

(d) if the other corporation is, by reason of the Corporations Law, to be deemed to be related to another corporation the directors of which are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the directors of the employer; or

(e) if the directors of the employer and the directors of the other corporation are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of another person; or

( /) if the other corporation has a share capital and the directors of the employer may (whether directly or indirectly) exercise, control the exercise of or substantially influence the exercise of, 50 per centum or more of the voting power attached to voting shares issued by the other corporation; or

(g) where the employer and the other corporation are corporations each of which has a share capital, if the person or persons who may (whether directly or indirectly) exercise, control the exercise of, or substantially influence the exercise of, 50 per centum or more of the voting power attached to voting shares issued by one of those corporations, may also exercise, control the exercise of or substantially influence the exercise of 50 per

921


centum or more of the voting powder attached to voting shares issued by the other corporation.

(2) Notwithstanding sub-section (1), an employer that is a corporation is not related, for the purposes of this Act, to another corporation (whether or not that other corporation is an employer) where—

(a) the employer and that other corporation are not, by reason of the Corporations Law to be deemed to related to each other; and

(b) the Authority is satisfied that neither the employer nor the other corporation carry on a trade, business or profession with an intention, whether direct or indirect, of avoiding or evading the payment of a premium.

67. Groups

(1) For the purposes of this Act— (a) where an employer is related, within the meaning

of section 66, to another corporation (in this section called a "related person");

(b) where a worker employed by an employer performs, or two or more workers employed by an employer perform, duties for or in connection with a trade, business or profession carried on by the employer and another person (in this section called an "associate") whether or not also with another person or other persons; or

(c) where—

(i) a worker employed by an employer is, or two or more workers employed by an employer are, employed solely or mainly to perform duties for or in connection with a trade, business or profession carried on by another person or other persons (which other person is, or other persons are, in this section, called an "associate"); or

(ii) an employer has, in respect of the employment of, or the performance of duties

922


by, one or more workers who are employed by the employer an agreement, arrangement or undertaking, whether formal or informal and whether expressed or implied, with another person or other persons (which other person is, or other persons are, in this section, called an "associate") relating to a trade, business or profession carried on by the associate or by the associate and another person or other persons—

unless the employer satisfies the Authority that the trade, business or profession in which the worker is, or the workers are, employed is carried on independently of, and is not connected with, the carrying on of a trade, business or profession carried on by the associate (whether or not with another person or other persons) and that the trade, business or profession in which the worker is, or the workers are, employed is not carried on with an intention either directly or indirectly of reducing the amount of premium payable whether by the employer or by another person—

then, for the purpose of this section, the employer, the related persons and the associates are together called a "group" and the employer, each related person and each associate is a member of that group.

(2) Where an employer is a member of a group and that person or another member of that group is a member of another group, a person who is a member of that other group is for the purposes of this section—

(a) deemed to be a member of the first-mentioned group; and

(b) called an "associate"—

unless that person satisfies the Authority that the trade, business or profession carried on by that person is carried on independently of, and is not connected with the carrying on of a trade, business or profession carried on by a member of the first-mentioned group and that that trade, business or profession is not carried

923


on with an intention either directly or indirectly of reducing the amount of premium payable by that person.

(3) Where, in respect of a group—

(a) a member of the group is nominated by members of the group and notice of the person nominated and persons by whom the nomination is made is given to the Authority, the nomination is deemed to have been made on the first day of the month in which the notice is given or the date when the member became a member of the group, whichever is the later, and the person so nominated continues to be the person nominated for the purposes of this Act until—

(i) notice of the nomination of another member of the group is given to the Authority, being a notice that includes a revocation of, or objection to, the nomination of the first-mentioned person; or

(ii) the nomination is revoked by members of the group by notice given to the Authority or by direction of the Authority; or

(iii) notice of objection to the nomination is given to the Authority by a member of the group; or

(b) the Authority appoints a member of the group, the appointment is deemed to have been made on the date specified in the appointment (being a date when the member was a member of the group) and the person so appointed continues to be the person appointed for the purposes of this Act until the appointment is revoked by the Authority.

(4) A nomination or appointment under sub-section (3) is deemed to be a nomination or appointment in respect of a group notwithstanding that at the time the nomination or appointment is made the identity of one or more members of the group is not known or, in the case of a nomination, one or more members do not join in making the nomination and is to continue to be a

924

*


nomination or appointment in respect of the group notwithstanding that the membership of the group alters.

(5) Where the Authority—

(a) appoints or revokes the appointment of a member of a group; or

(b) directs that a nomination of a member of a group is revoked—

the Authority must give notice of the appointment or revocation to each member of the group whose identity the Authority knows.

(6) Nothing in this section requires the Authority to appoint a member of a group and, where the Authority makes or revokes such an appointment, the Authority is not liable to any person in any manner by reason of the appointment or revocation.

68. Recovery of premium or penalty

(1) This section is in addition to and not in derogation from the rights of recovery by an authorised insurer under a WorkCover insurance policy.

(2) Any premium or penalty imposed under this Act and which is unpaid may be sued for and recovered—

(a) irrespective of the amount of the premium or penalty, in the Magistrates' Court; or

(b) in any other court of competent jurisdiction—

by the Authority suing in the name of the Authority or by a person employed in the administration of this Act and authorised to sue for and recover premium or penalty on behalf of the Authority suing in the name of the Authority.

(3) Proceedings under this section brought in the name of the Authority are, in the absence of evidence to the contrary, deemed to have been brought by authority of the Authority.

925

4


(4) The person referred to in sub-section (2) may appear in proceedings brought under this section on behalf of the Authority.

(5) Notwithstanding any Act or any rule of the court to the contrary, in any proceedings for the recovery of a premium or penalty against any person it is sufficient to disclose a cause of action in such proceedings if the particulars of demand state in respect of what remuneration the premium or penalty is payable, the amount sought to be recovered, the date on which the amount was payable and such further and other particulars as the Authority thinks necessary fully to inform the defendant of the nature of the demand.

69. Books and accounts to be preserved

(1) A person who is or was an employer required to obtain and keep in force a WorkCover insurance policy under this Act must keep proper books and preserve those books for a period of not less than 5 years after the completion of the transactions to which they relate.


(2) This section does not apply so as to require the preservation of any books—

(a) in respect of which the Authority has notified the employer that preservation is not required; or

(b) of a corporation which has gone into liquidation and which has been finally dissolved.

70. Warrants to enter and search

(1) If a magistrate is satisfied, by the evidence on oath or by affidavit of the Authority, that there is reasonable ground for suspecting that there are on particular premises any books which are relevant to the assessment of a premium the magistrate may issue a warrant authorising any member of the police force together with any other person named in the warrant—

926


(a) to enter those premises (using such force as is necessary for the purpose);

(b) to search the premises and to break open and search any cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, in the premises;

(c) to take possession of, or secure against interference, any books that appear to be relevant to the assessment of a premium; and

(d) to delivery any books, possession of which is so taken, into the possession of the Authority or a person authorised by the Authority to receive them.

(2) Every warrant under sub-section (1) may be in the prescribed form and must not be granted except in accordance with sub-section (1).

(3) Where, under this section, a person takes possession of, or secures against interference, any books, that person or any person to whose possession they are delivered under sub-section (1) (d)—

(a) may make copies of, or take extracts from, the books;

(b) may retain possession of the books for such period as is necessary to enable them to be inspected, and copies of, or extracts from, them to be made or taken, by or on behalf of the Authority; and

(c) during that period must permit a person who would be entitled to inspect any one or more of those books if they were not in the possession of the first-mentioned person to inspect at all reasonable times such of those books as that person would be so entitled to inspect.

(4) Every person who—

(a) refuses to permit any such search or seizure as is referred to in this section to be made; or

(b) assaults, opposes, molests or obstructs any person employed or acting in the execution or under the

927


authority of such warrant or aiding or assisting in the execution thereof—

is liable to a penalty not exceeding 100 penalty units.

71. Evidence

(1) For the purposes of any proceedings against a person for the recovery of a premium or penalty, a certificate purporting to be issued by the Authority or an authorised insurer certifying that—

(a) the person named in the certificate was liable to the premium or penalty in respect of the period specified in the certificate; or

(b) an assessment of the premium or penalty was duly made against the person; or

(c) the particulars of the assessment or penalty are as stated in the certificate; or

(d) notice of the assessment or penalty was duly served upon the person; or

(e) the amount specified in the certificate was at the date of the certificate payable as the premium or penalty by the person named in the certificate—

is evidence of the matters so certified.

(2) The production of a notice of assessment, or a document under the seal of the Authority or an authorised insurer purporting to be a copy of a notice of assessment, is conclusive evidence of the due making of the assessment and that the amount and all particulars of the assessment are correct.

(3) The production of any document purporting to be under the common seal of the Authority or an authorised insurer (that document purporting to be a copy of or extract from any document or return furnished to, or of any document issued by, the Authority or an authorised insurer) is for all purposes sufficient evidence of the matter therein set forth, without producing the original.

928


72. Regulations

(1) The Governor in Council may make regulations for or with respect to prescribing any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2) Regulations made under this Act—

(a) may be of general or of specially limited application;

(b) may differ according to differences in time, place or circumstances;

(c) leave any matter or things to be from time to time determined, applied, dispensed with or regulated by a person or body specified in the regulation;

(d) confer powers or impose duties in connection with the regulations on a person or body specified in the regulations;

(e) may apply, adopt or incorporate, with or without modification any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any authority or body as formulated, issued, prescribed or published at the time the regulation is made or at any time before the regulation is made;

(/) may make provision for or in relation to any matter by applying, adopting or incorporating, with or without modification, the provisions of any Act of the Commonwealth or of any statutory rule or other instrument made under an Act of the Commonwealth, as in force at a particular time or as in force from time to time;

(g) may impose a penalty not exceeding 10 penalty units for any contravention of the regulations.

931372—30 929


PART 7—CONSEQUENTIAL AMENDMENTS TO ACCIDENT COMPENSATION ACT 1985

73. Powers of Authority

For section 20A (3) of the Accident Compensation Act 1985 substitute—

'(3) For the purposes of sub-section (2), "accident insurance" includes re-insurance for the purposes of section 34 of the Accident Compensation (WorkCover Insurance) Act 1993 and is not limited by reference to the practices, usages, form and procedure for the time being followed by other persons engaged in the general business of insurance.'.

74. WorkCover Authority Fund

In section 32 of the Accident Compensation Act 1985—

(a) after sub-section (3) (/*) insert—

"(fa) any amount required to be transferred to the Fund under section 46 of the Accident Compensation (WorkCover Insurance) Act 1993;";

(b) after sub-section (4) (h) insert—

"(ha) any amount required to be transferred from the Fund under section 45 of the Accident Compensation (WorkCover Insurance) Act 1993;

(hb) any amount required to be transferred from the Fund under section 56 of the Accident Compensation (WorkCover Insurance) Act 1993";

(c) in sub-section (5) after "section" insert "and the Accident Compensation (WorkCover Insurance) Act 1993".

930


75. Liability to pay compensation

(1) In section 125 of the Accident Compensation Act 1985 before sub-section (1) insert— "(IAAA) This section does not apply to the liability to

pay compensation in respect of an injury arising out of or in the course of any employment on or after 4 p.m. on 30 June 1993.".

(2) After section 125 of the Accident Compensation Act 1985 insert—

' 125A. Liability to pay compensation—on or after 4 p.m. on 30June 1993

(1) This section applies to the liability to pay compensation in respect of an injury arising out of or in the course of any employment on or after 4 p.m. on 30 June 1993.

(2) Where a worker or a worker's dependants are entitled to compensation in respect of an injury arising out of or in the course of any employment on or after 4 p.m. on 30 June 1993, the liability to pay compensation is to be assumed in all cases by the worker's employer.

(3) A WorkCover insurance policy under the Accident Compensation (WorkCover Insurance) Act 1993 in respect of an employer's liability under sub-section (2) is subject to an employer's excess in respect of each claim equal to—

(a) in the case of weekly payments in respect of the total or partial incapacity of a worker, being a full-time worker, the first 10 days of the period of incapacity resulting from the relevant injury; and

931


(b) a proportion of the weekly payments in respect of the total or partial incapacity of a worker who is not a full-time worker with that employer for the first 10 days of the period of incapacity resulting from the relevant injury; and

(c) payment of the first $378 of the reasonable costs referred to in section 99 (1) (a) in relation to the relevant injury.

(4) The proportion for the purposes of sub-section (3) (b) is the number of hours per week which the worker works for the employer as a proportion of the total number of hours per week which the worker works for all employers.

(5) In sub-section (3), a reference to a relevant injury in relation to a worker does not include a reference to a recurrence of any pre-existing injury or disease in respect of which the worker is entitled to compensation under this Act where the worker's employment was a significant contributing factor to that recurrence.

(6) Subject to guidelines issued by the Authority and in accordance with the premiums order, an employer may elect to increase, reduce or eliminate the excess under sub-section (3) by paying an adjusted premium under the employer's WorkCover insurance policy under the Accident Compensation (WorkCover Insurance) Act 1993.

(7) The premiums order made under section 15 of the Accident Compensation (WorkCover Insurance) Act 1993 may

932


specify different rates or levels of premium for the purposes of this section.

(8) Sub-section (3) does not apply to the liability to pay compensation in respect of an injury to a worker receiving remuneration of a kind referred to in paragraph (h) or (i) of the definition of "remuneration" in section 5.

(9) Sub-section (3) does not apply to the liability to pay compensation in respect of an injury—

(a) resulting from a transport accident within the meaning of the Transport Accident Act 1986; and

(b) deemed to have arisen out of or in the course of any employment by reason of section 83 (1) (a) or 83 (1) (c).

(10) For the purposes of sub-section (3), in calculating the first 10 days of the period of incapacity resulting from the relevant injury—

(a) the day on which the incapacity commenced must be included; and

(Z>) any day on which the worker would not have worked if he or she had not suffered the injury must be excluded.

125B. Liability to pay compensation—recovery

(1) Section 125A applies to the liability to pay compensation in respect of an injury arising out of or in the course of any employment partly before 4 p.m. on 30 June 1993 and partly on or after 4 p.m. on 30 June 1993.

933


(2) There is no right to contribution as between the Authority, employers or authorised insurers in respect of liability to which section 125A applies.

(3) This section does not affect any rights conferred under Division 6 or 6A of this Part.'.

76. Application of Part VII

After section 179 of the Accident Compensation Act 1985 insert—

"179A. Application of Part

This Part does not apply to remuneration paid or payable by an employer on or after 1 July 1993.".

77. Amendment of Part VII

Sections 180A, 181,182,186,187,188,189,190,191, 192, 193,194, 195,196,197,198, 199, 200, 201, 206, 210, 217, 218, 219, 220, 221, 222, 223, 224 and 225 of the Accident Compensation Act 1985 are repealed.

78. Consequential amendments

(1) In the Accident Compensation Act 1985— (a) in sections 9, 16 (2), 17 (1), 17 (2), 33A (1) and

106 (3) for "levy" (wherever occurring) substitute "premium";

(b) in sections 20c (1) and 29 (4) after "Act" insert "or the Accident Compensation (WorkCover Insurance) Act 1993";

(c) in sections 5 (1) (in the definition of "notional earnings"), 45 (4), 67 (1), 67 (2), 67 (3), 68 (1), 68 (3), 92 (1), 92 (3), 92 (4), 92 (6), 92 (7), 93B (5), 93c (1), 97 (2), 97 (3), 99 (1), 99 (2), 99 (3), 99AB (4), 99AD (a), 103 (3), 103 (4), 104 (3), 107, 111 (1), 111 (2), 111 (5), 111A (1), 111A (2), 112

934


(1), 112 (4), 112 (5), 112 (7), 114 (1), 114 (3), 114 (4), 114 (6) (b), 115 (1), 115 (2), 115 (5), 115A (1), 115A (3), 115A (4), 115A (9), 116 (1), 116A (1), 116A (2), 116A (3) and 117 (1) after "Authority" (wherever occurring) insert ", authorised insurer";

{d) in sections 9 (1) (e) (v), 9 (l).(f) (iii), 9 (4), 10 (2), 16 (1), 46 (1), 87 (2), 93A (3) (a) (iii), 93A (3) (b) (ii), 93A (3) (b) (iv), 93B (2) (a) (i), 93B (2) (b) (iii), 93B (2) (c) (ii), 93B (2) (c) (iv), 99 (5), 99 (11), 99 (12), 99B (6), 101 (5) and 108 (b) (iii) after "Authority" insert "or authorised insurer";

(e) in section 53 in the definition of "dispute" after "Authority" where secondly occurring insert ", authorised insurer";

(/) in sections 59 (3), 59 (5), 87 (3), 88 (3) and 99 (10) after "Authority," insert "authorised insurer,";

(g) in sections 109 (3), 109 (4), 109 (5), 109 (6), 109 (7), 109 (11), 110 (1) and 110 (2) for "Authority" wherever occurring substitute "authorised insurer";

(h) in sections 39 (1) (a), 85 (6), 91 (2), 99AA (1), 99AA (3), 99AA (4), 99AA (6), 99AA (7), 99AA (8), 99AA (10), 99AA (11), 99AA (12) and 99AA (13) after "Authority" (wherever occurring) insert ", authorised insurer, employer".

(2) In the Accident Compensation Act 1985—

(a) in section 50 after "Authority" (wherever occurring) insert ", authorised insurer, employer";

(b) in sections 99 (1) and 99 (4) after "125 (1) (a) (iii)" insert "or 125A (3) (c)";

(c) in section 101 (5) after "125 (1) (a)" insert "or 125A (3) (a)";

(d) in section 105—

(i) before "If" insert "(1)";

(ii) at the end of the section insert—

935


"(2) This section does not apply to a claim in respect of an injury arising wholly out of or in the course of employment on or after 4 p.m. on 30 June 1993.";

(e) in section 106 (1) after "claim for compensation," insert "forward the claim to the authorised insurer or if there is no current authorised insurer";

(/) in section 106 (2) after "125 (1) (a)" insert "or 125A (3) (a)".

PART 8—GENERAL AMENDMENT OF ACCIDENT COMPENSATION ACT 1985

& £ & » 7 9- ^ncipalAct No 83/1992

In this Part, the Accident Compensation Act 1985 is called the Principal Act.

80. Definitions

(l) In section 5 (l) of the Principal Act— (a) for the definition of "authorized agent"

substitute—

'"authorised agent" means a person appointed as an authorised agent under section 23;';

(b) after the definition of "partial incapacity" insert—

'"personal and household service" means the provision of any one or more of the following of a kind or type, and by a person, approved by the Authority—

(a) attendant care; (b) counselling; (c) modifications to a home or car; (d) household help; (e) transportation costs; (f) at the request of a medical

practitioner, an aid, assistance,

936


appliance, apparatus or service, other than a medical service, hospital service or nursing service—

and includes a rehabilitation service provided under this Act as in force before the commencement of section 80 of the Accident Compensation (WorkCover Insurance) Act 1993;';

(c) in the definition of "occupational rehabilitation service" for all words after paragraph (k) substitute—

"(0 the provision of aids, appliances, apparatus or other material likely to facilitate the return to work of a worker after an injury;

(m) modification to a work station or equipment used by a worker that is likely to facilitate the return to work of the worker after an injury;

(n) any other service authorised by the Authority—

but does not include a hospital service;"; {d) the definition of "rehabilitation service" is

repealed; (e) in the definition of "worker" omit all words after

paragraph (e).

(2) In section 5 (1) of the Principal Act, after the definition of "nursing service" insert—

'"occupational rehabilitation program" means a program in accordance with section 156;'.

81. Amendment of references to rehabilitation service

In the Principal Act— (a) in section 20 (1) (p), before "rehabilitation

service" insert "occupational";

(fo) In section 56 (5), for "rehabilitation service" substitute "service under section 99, 99A or 99B";

(c) in section 65 (6), omit paragraph (b);

937


(d) in section 83 (1) (d), for "receiving a rehabilitation service" substitute "receiving a personal and household service";

(e) in section 99 (1) (a), (2) and (4), for "rehabilitation" substitute "personal and household, occupational rehabilitation";

(/) in section 99A (1) and (2), before "rehabilitation" insert "occupational";

(g) in section 129D (4), for "rehabilitation" substitute "personal and household";

(h) in section 156 (7), before "rehabilitation services" insert "occupational";

(/) in section 238 (6), for "rehabilitation" substitute "personal and household service.";

(/) in section 248A (3), for "or rehabilitation service" substitute "personal and household service or occupational rehabilitation service";

(k) in section 253 (1) (e), for "or rehabilitation service" substitute "personal and household service or occupational rehabilitation service".

82. Contractors

In section 8 (1) of the Principal Act—

(a) after "of this Act the contractor" insert "and any workers employed by the contractor in the performance of the work under the first-mentioned contract";

(b) after "shall be deemed to be that employer" insert "and the contractor shall be deemed not to be an employer of those workers".

83. New section 10A inserted

After section 10 of the Principal Act insert—

938


'10A. Sub-contracting where sub-contractor not a worker

(1) If a person (in this section referred to as "the principal contractor") in the course of or for the purposes of the person's trade or business contracts with any other person who is not, and is not deemed under section 8 or 9 to be, a worker (in this section referred to as "the contractor") for the execution by or under the contractor of the whole or any part of any work undertaken by the principal contractor, the principal contractor, if the contractor does not have a WorkCover insurance policy or is not a self-insurer at the time a worker employed in the execution of the work receives an injury, is liable to pay any compensation under this Act in respect of that injury which the principal contractor would have been liable to pay if that worker and all other workers employed by the contractor in the execution of the work had been immediately employed by the principal contractor.

(2) If compensation is claimed from or proceedings are taken against the principal contractor in respect of any such injury, then, in the application of this Act, a reference to the principal contractor shall be substituted for a reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the worker under the employer by whom the worker is immediately employed.

(3) In the case of sub-contracts— * (a) "principal contractor" includes

not only the original principal contractor but also each contractor

939


who constitutes himself, herself or itself as a principal contractor with respect to a sub-contractor by contracting with the sub-contractor for the execution by the sub-contractor of the whole or any part of the work; and

(b) "contractor" includes not only the original contractor but also each sub-contractor—

and each principal contractor's right to indemnity shall include a right against each contractor standing between the principal contractor and the contractor by whom the worker was employed at the time when the injury occurred.

(4) If the principal contractor is liable to pay compensation under this section, the principal contractor is entitled to be indemnified by any person who would have been liable to pay compensation to the worker independently of this section, and all questions as to the right to and amount of any such indemnity shall in default of agreement be settled by a court.

(5) Nothing in this section shall be construed as preventing a worker recovering compensation under this Act from the contractor instead of the principal contractor.

(6) I f -(a) a principal contractor under a

contract referred to in sub-section (1) is, at the time of an injury to a worker employed in the execution of the work under the contract, insured under a policy of insurance in respect of workers other than the

940


workers employed in the execution of the work under the contract;

(b) compensation payable by the principal contractor under sub-section (1) in respect of the injury is paid by the principal contractor's insurer; and

(c) the principal contractor has not, in respect of the policy, paid to the insurer a premium in respect of the principal contractor's liability under sub-section (1)—

the principal contractor is liable to pay the insurer, in addition to the premium payable or paid in respect of the policy, a premium calculated having regard to—

(d) the insurance premiums order in force as at the commencement of the policy; and

(e) the remuneration paid or payable to the workers employed in the execution of the work under the contract during the relevant policy period.

(7) A principal contractor under a contract referred to in sub-section (1) is not, under sub-section (6), liable to pay in respect of a policy of insurance more than one additional premium in respect of the workers employed in the execution of the work under the contract.

(8) In the event of a disagreement between a principal contractor and insurer as to whether or not an additional premium is payable under sub-section (6) or as to the amount of an additional premium payable under that sub-section, the Authority may, on the request of either party, determine the matter.'.

941


84. WorkCover Authority Fund

(1) After section 32 (4) (f) of the Principal Act insert— "(fa) any remuneration (including allowances) of

members of Medical Panels and such costs and expenses incurred in connection with the operation of Division 3 of Part III as are approved by the Authority;".

(2) In section 33A (7) of the Principal Act, for "32 (4) (d)" substitute "32 (4) (c), (d) or (fa)".

85. Annual report

After section 36 (1) (b) of the Principal Act insert— "and

(c) a report on the financial and claims performance of each self-insurer.".

86. Quarterly reports

In section 37 (4) of the Principal Act, paragraph (f) is repealed.

87. Jurisdiction of Magistrates' Court

(1) In section 43 of the Principal Act—

(a) in sub-section (1) (b), after "$25 000" insert "or is in respect of the payment of weekly payments";

(b) in sub-section (2)— (i) after "periods" insert "before the order is

made"; (ii) for "26" substitute "52".

(2) The Principal Act, as amended by this section, applies to proceedings commenced after 29 April 1993.

88. Costs

(1) In section 50 of the Principal Act— (a) before "In proceedings" insert "(1)";

942


(b) after "1958," insert "being proceedings brought by a person other than the Authority or a self-insurer";

(c) in paragraph (a), omit "except in proceedings brought by the Authority or a self-insurer,".

(2) At the end of section 50 of the Principal Act insert—

"(2) Nothing in sub-section (1) applies to proceedings brought by the Authority or a self-insurer.

(3) Despite anything to the contrary in any other Act or law, costs awarded to a worker or claimant by the County Court in proceedings brought by the worker or claimant in which the judgement or decision is a judgement or decision that could have been made by the Magistrates' Court, had the proceedings been brought in the Magistrates' Court, must be awarded as if the scale of costs applicable in the Magistrates' Court applied.".

(3) The Principal Act, as amended by this section, applies to proceedings commenced after 29 April 1993.

89. Conciliation

In section 56 (9) of the Principal Act, for "It is a condition of participating in a conciliation conference that a party to a dispute" substitute "A party who participates in a conciliation must".



"61A. Certain evidence inadmissible in proceedings

Evidence of—

(a) anything said at, and any admission or agreement made at or during; or

(b) any document prepared for the purposes of—

943


a conciliation of a dispute is not admissible in any court or tribunal in any proceedings other than proceedings for—

(c) the enforcement of such an agreement; or

(d) an offence against this Act, the Accident Compensation (WorkCover Insurance) Act 1993 or the Workers Compensation Act 1958; or

(e) an offence involving fraud or making a false statement.".

91. Occupational rehabilitation services and programs

In the Principal Act—

(a) in section 93A (3) (a), for sub-paragraph (i) substitute—

"(i) makes every reasonable effort to participate in an occupational rehabilitation service or occupational rehabilitation program; and";

(b) in section 93A (3) (b), for sub-paragraph (i) substitute—

"(i) participates in an occupational rehabilitation service or occupational rehabilitation program; and";

(c) in section 93B (2) (b), for sub-paragraph (i) substitute—

"(ii) makes every reasonable effort to participate in an occupational rehabilitation service or occupational rehabilitation program; and";

id) in section 93B (2) (c), for sub-paragraph (i) substitute—

"(i) participates in an occupational rehabilitation service or occupational rehabilitation program; and".

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92. Amendment of section 93D

In section 93D (3) (a) of the Principal Act, for sub-paragraph (ii), substitute—

"(ii) the range of duties the worker performs—

is suitably increased in stages (in accordance with a rehabilitation plan or otherwise); and".

93. Indexation

After section 100 (3) of the Principal Act insert—

"(3A) If the variation of an amount to which this Part applies by operation of this section has the effect of reducing the amount—

(a) the variation is deemed not to have taken effect, except for the purposes of the application of this section; and

(b) when the amount is varied and increased by operation of this section in respect of the next or a subsequent financial year, that variation has effect as an increase only to the extent (if any) to which the amount of the increase exceeds the amount of the reduction in respect of a preceding financial year, or that part of such a reduction that has not been set off against a previous increase.".

94. Compensation for maims

(1) After section 98 (4) of the Principal Act insert—

"(5) Compensation under this section is not payable after the death of the worker concerned.".

(2) In section 98 (3) of the Principal Act, for "$100 000 or $78 100 (as the case requires)" substitute "$93 080".

95. Compensation for medical and like services

In section 99 of the Principal Act—

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Accident Compensation (WorkCover Insurance) Act 1993 s. 96 Act No. 50/1993

(a) in sub-section (3), for "(H)" substitute "(1) (other than an occupational rehabilitation service)";

(b) in sub-sections (11) and (12), after "Authority" insert "or self-insurer";

(c) in sub-section (13), for "135" substitute "135A or section 93 of the Transport Accident Act 1986".

96. Claim for compensation

After section 103 (1) (c) of the Principal Act insert—

"and

(d) include an authority signed by the claimant authorising a provider of a medical service or hospital service to the claimant in connection with the injury to which the claim relates to give the Authority, authorised insurer, self-insurer, employer or conciliation officer information regarding the service relevant to the claim.".



"107A. Provision of information to claimant

The Authority, an authorised insurer, a self-insurer or an employer must, at the request of a person who has made a claim for compensation, give that person any information received from a provider to that person of a medical service or hospital service, being information regarding that service and relevant to the claim.".

98. Amendment of section 112

In section 112 (8) of the Principal Act, for paragraph (b) substitute—

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"(b) an alteration in payments by reason only of the expiration of a period referred to in section 93A, 93B or 93c or the receipt of a pension or payment referred to in section 96.".

99. Certificate of incapacity

In section 114 (2) of the Principal Act, for paragraph (a) substitute—

"(a) be a certificate—

(i) under section 104; or

(ii) in a form approved by the Authority given by a medical practitioner, physiotherapist or chiropractor and osteopath; and".

100. Settlements and interim settlements

In sections 115 (4) (b) and 115A (5) (b) of the Principal Act, after "proceedings" insert "against—

"(i) a person whom the Authority is liable to indemnify under section 134; or

(ii) the Authority under section 134 (8); or

(iii) an employer who is a self-insurer or a subsidiary of a self insurer—"'.

101. Repeal of section 120

(1) Section 120 of the Principal Act is repealed.

(2) Despite the repeal of section 120 of the Principal Act—

(a) an employer may, before 1 August 1993, post to or lodge with the Authority an objection under that section in relation to a decision, or omission to make a decision, or acceptance that occurred before 1 July 1993; and

(b) that section continues to apply in respect of objections lodged under sub-section (1) of that section before that date.

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102. Indemnity by third party


(a) after "paid" (where first occurring) insert "or is of may be payable";

(b) after "compensation paid" insert "or that is or may be payable (including compensation that may be payable after the amount of the indemnity has been settled by agreement or action)";

(c) for ", in default of agreement, be settled by action or, if the parties consent, by the Tribunal" substitute "be settled by agreement or action";

(d) after "worker" insert "or the dependants of the worker".

(2) Section 138 of the Principal Act, as amended by this section applies to compensation paid or payable after the date on which this Act receives the Royal Assent.

103. Self-insurers: definitions

In section 139 of the Principal Act—

(a) in the definition of "holding company", after "means" insert— "subject to section 139A";

(b) after the definition of "holding company" insert— ' "local government corporation" means—

(a) a Council within the meaning of the Local Government Act 1989;

(b) a regional corporation under section 196 of the Local Government Act 1989;

(c) an authority within the meaning of the Water Act 1989 the members of which must include a councillor of a Council within the meaning of the Local Government Act 1989;

(d) any other body corporate established or formed for local government purposes;

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"MAV" means the body corporate known as the Municipal Association of Victoria established under the Municipal Association Act 1907;

"participating corporation" means a local government corporation participating in a scheme of self insurance operated by MAV;';

(c) in the definition of "subsidiary", after "means" insert "subject to section 139A".

104. New sections 139A and 139B inserted


"139A. Municipal Association of Victoria as self-insurer

If MAV is approved as a self-insurer under this Part—

(a) a reference in this Part (except sections 141 and 142) to a holding company includes a reference to MAV; and

(b) a reference in this Part (except sections 141 and 142) to a subsidiary includes, in relation to MAV, a reference to a participating corporation.

139B. MAV to act as insurer

(1) If MAV is approved as a self-insurer under this Part MAV must establish a local government workers compensation self-insurance scheme for the benefit of—

(a) MAV; and (b) participating corporations—

on such terms and conditions, subject to this Act, that MAV determines.

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Accident Compensation (WorkCover Insurance) Act 1993 s . 1 0 5 : ; . •" ActNo. 50/1993

(2) MAV must keep separate accounts of money received or expended with respect to the operation of the self-insurance scheme referred to in sub-section (1) .

NO. 2080 (3) This section must be read as one with the NO.9895. v . : - Municipal Association Act 1907.".

105. Amendment of section 141

In section 141 of the Principal Act— •(a) in sub-sectioni (1), after "body corporate" (where

secondly occurring) insert "(other than a foreign company within the meaning of the Corporations Law that, when the application is made, is not a registered foreign company within the meaning of that Law)";

(b) in sub-section (1), for "Minister" substitute , . : . ; - ' . : : "Authority";

•'•J'•:• r':::;"/: (c) in sub-section (5), for "Minister" (where twice , ; . , , ; " : : occurring)substitute "Authority".



"141A. Application for approval as self-insurer by '."'• MAV-

(1) MAV may make application in writing to ; . . . . ; the Authority for approval as a

. self-insurer for— • •' ' , ' • • ; . . ' (a) workers employed by it; and

.:•;.';" .̂'....' (b) workers employed by •.•.•."•'; -" . . participating corporations.

(2) MAV must not make an application :.,'•}•-: under sub-section (1) unless the number

of workers in Victoria proposed to be — "/•"• covered by the scheme of self-insurance

is not less than 1000.

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(3) An application under sub-section (1) shall be accompanied by—

(a) a copy of the proposed scheme of self-insurance; and

(b) the name of each local government corporation proposing to participate in the scheme as at the date of the application; and

(c) such other information as the Authority may require.".

107'. Amendment of section 142

In section 142 of the Principal Act— (a) in sub-section (1)—

(i) for "Governor in Council" substitute "Minister";

(ii) for "Minister" (where twice occurring) substitute "Authority";

(b) in sub-section (2), for "Minister" (where twice occurring), substitute "Authority";

(c) in sub-section (2), paragraphs (/), (g) and (ha) are repealed;

(d) sub-section (3) is repealed. (e) in sub-section (4), for "Governor in Council"

substitute "Authority"; (/) sub-section (5) is repealed.



"142A. Approval ofMAV as self-insurer

(1) Where an application is made by MAV under section 141A, the Minister may, on the recommendation of the Authority—

(a) approve MAV as a self-insurer for—

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s.108 Accident Compensation (WorkCover Insurance) Act 1993

Act No. 50/1993

(i) workers employed by it; and (ii) workers employed by

participating corporations— if the Authority is satisfied that MAV is fit and proper to be a self-insurer; or

(b) refuse to grant such approval.

(2) In determining whether MAV is fit and proper to be a self-insurer for the purposes of this Act, the Authority shall have regard to the following matters—

(a) whether MAV is, and is likely to continue to be, able to meet its liabilities;

(b) the resources, including employees, that MAV has for the purposes of administering claims for compensation;

(c) the incidence of injuries to workers arising out of and in the course of employment by MAV or participating corporations and the cost of claims in respect of such injuries;

(d) the safety of the working conditions for workers employed by MAV or participating corporations;

(e) in the case of an application by MAV while MAV is approved as a self-insurer for a period of three years—any recommendations of the Self Insurance Review Tribunal under section 154 in relation to MAV;

(/) if the application is for renewal of approval as a self-insurer by MAV after it is or has at any time been a self-insurer for the purposes of this

952


Part—whether MAV has at any time failed to comply with this Act or the regulations or any conditions of its approval as a self-insurer;

(g) such other matters as the Authority thinks fit.

(3) An approval of MAV as a self-insurer—

(a) may be made subject to such terms and conditions as the Authority determines or are prescribed by the regulations; and

(b) has effect, unless sooner revoked— (i) if MAV is not a self-insurer

immediately before the approval is given—for the period of three years after the approval is given; and

(ii) in any other case—for the period of four years after the approval is given.".

109. Amendment of Part V

(1) In the Principal Act—

(a) in section 144—

(i) for "Governor in Council" substitute "Minister"; and

(ii) for "Minister" (where twice occurring) substitute "Authority";

(fe) in section 146—

(i) in sub-section (1) (a), for "Minister" substitute "Authority";

(ii) in sub-section (4) (b), for "Minister" substitute "Authority";

(iii) in sub-section (5) (a) for "Minister" (where twice occurring) substitute "Authority";

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Accident Compensation (WorkCover Insurance) Act 1993 s. 109 Act No. 50/1993

(c) in section 147, after "1985" insert "or in the case of an application by MAV";

(d) in section 147, for "Minister" substitute "Authority";

(e) in section 148— (i) in sub-section (1), for "Minister" substitute

"Authority";

(ii) in sub-section (3), for "Minister" substitute "Authority";

(iii) in sub-section (4)— (A) for "Minister" (where twice occurring)

substitute "Authority"; (B) for "Governor in Council" substitute

"Minister"; (iv) in sub-section (5)—

(A) for "Governor in Council" substitute "Minister";

(B) for "Minister" (where twice occurring) substitute "Authority";

(/) in section 149— (i) for "Governor in Council" (where twice

occurring) substitute "Minister"; (ii) for "Minister" (wherever occurring)

substitute "Authority"; (g) in section 151—

(i) in sub-section (2), for "Governor in Council may by Order" substitute "Minister may by notice published in the Government Gazette";

(ii) in sub-section (2), for "making of the Order" substitute "publication of the notice";

(iii) in sub-section (3) (a), for "approved by the Minister" substitute "appointed by the Authority";

(iv) in sub-section (6), for "approved by the Minister" substitute "appointed by the Authority";

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Accident Compensation (WorkCover Insurance) Act 1993 ActNo. 50/1993- s. 110

(h) section 154A is repealed.


(a) in sub-section (1) (b), for "Minister" substitute "Authority"; •"•.;':.

(b) in sub-section (2) (c), for sub-paragraphs (i) and v:'-"-".''• (ii) substitute—

"(i) the Secretary to the Department of Business . and Employment;

(ii) the Deputy Secretary, Industry Services in the Department of Business and: Employment;". - • V ' . ....

(3) In section 156 (2) of the Principal Act, for paragraph (c) substitute— "(c) be developed by the employer in consultation with

the workers of the employer; and".

110. Minor amendments

(1) In the Principal Act— (a) in section 27 (5), for "sub-section (l)v substitute

"sub-section (2)"; (6) in section 59 (6), omit "or the Administrative

Appeals Tribunal";

(c) in section 64 (4) (g), for "is committed", substitute "if committed";

(d) in section 104 (4), for "Tribunal" substitute : "County Court"; ,: •• i,'• .f •• . " .'['"::•''•

(e) in section 129G (16), for "61" substitute "52"; './.'"_

(/) in section 130 (1) (a), for "or 98" substitute ", 98 ' /: o r 9 8 A " ; " . ; '; . ':•;'"•; ,:"„.- •.

(g) in section 131 (3), for "County Court" substitute.';.. "Authority"; : .. . • , ' . ; ' :

(h) in section 131 (5), omit "Except as provided i n , , ; : . . section50"; '•"•••: "'••-:'•'•'• •• -'i'. • --'z"7:'"'.;'

(0 in section 236 (7), for "185" substitute:-«2F; - ;

0') in section 249A (3), after "may" insert "be".•\':';-.r~.'.'r '-.

9 5 5 " ; " ' • •:•_'•••'•• ,• ' '• ' '• . * '. .


(2) In the Principal Act— (a) in section 127 (1) (2) and (3), for "Commission"

(wherever occurring) substitute "Authority"; (b) in section 127 (2), for "109 (2)" substitute "109

(6)";

PART 9—AMENDMENT OF OTHER ACTS

111. Amendment of Accident Compensation (WorkCover) Act 1992

(1) In the Accident Compensation (WorkCover) Act 1992— (a) in section 36, sub-section (1) is repealed; (b) section 42 is repealed.

(2) In the Accident Compensation (WorkCover) Act 1992— (a) in section 16 (2), for "payments" substitute

"payment"; (b) in section 37 (b) (ii), for "a Board" substitute "the

Board"; (c) in section 64 (11) (a), for "4 (2) (b)" substitute "4

(2)"; (d) in section 64 (11) (b)—

(i) for "CI. 6A (ii) (twice)" substitute "CI. 6A (11) (twice)";

(ii) for "25l (i)" substitute "25i (1)";

(iii) after "46 (1)", insert", (2) (first occurring)"; (e) in section 64 (11) (d), after "Tribunal" insert

"Fund"; (/) in section 65 (1) (a) (i)—

(i) after "must" insert", under the Principal Act as amended by this Act";

(ii) for "as in force after" substitute "as in force before".

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112. Amendment of Workers Compensation Actl958

(1) In the Workers Compensation Act 1958—

(a) in section 3 (1), after the definition of "accident insurance" insert— "Authority" means the Victorian WorkCover

Authority; (b) in section 3 (1), the definitions of "Tribunal" and

"Tribunal Fund" are repealed; (c) in the heading to Division 8 of Part I, for

"Tribunal" substitute "Authority"; (d) in sections 34, 35 and 36—

(i) for "Registrar" (wherever occurring) substitute "Authority";

(ii) for "Tribunal" (wherever occurring) substitute "County Court";

(e) in section 35 (5), omit "Fund" (where last occurring);

(/) in section 46 (1) (c) (i) for "imdemnity" substitute "indemnity".

(2) Anything done or purported to be done by the Victorian WorkCover Authority under Division 8 of Part I of the Workers Compensation Act 1958 before the date on which the Accident Compensation (WorkCover Insurance) Act 1993 received the Royal Assent is deemed to be as valid and effectual as it would have been if sub-section (1) had been in force.

113. Amendment of Stamps Act 1958

(1) In section 95 of the Stamps Act 1958— (a) before the definition of "assurance or insurance

business" insert— ' "accident compensation business" means—

(a) the issuing of insurance policies by authorised insurers for the purposes of the Accident Compensation (WorkCover Insurance) Act 1993;

957

s.113 Accident Compensation (WorkCover Insurance) Act 1993

Act No. 50/1993

(b) the business of insurance undertaken by the Victorian WorkCover Authority for the purpose of providing accident insurance within the meaning of section 20A of the Accident Compensation Act 1985;';

(b) in the definition of "assurance or insurance business", after "transport assurance or insurance" insert "or accident compensation business";

(c) in paragraph (b) of the definition of "workers compensation insurance" for "Accident Compensation Commission" substitute "Victorian WorkCover Authority".

(2) In section 110A (5) of the Stamps Act 1958, after "apply to" insert "accident compensation business or".

NOTES

1. Minister's second reading speech—

Legislative Assembly: 29 April 1993

Legislative Council: 14 May 1993

2. The long title for the Bill for this Act was "A Bill to require compulsory WorkCover insurance for employers and to establish a WorkCover insurance system, to generally amend the Accident Compensation Act 1985 and the Workers Compensation Act 1958 and to make minor amendments to the Stamps Act 1958 and the Accident Compensation (WorkCover) Act 1992 and for other purposes.".

3. Section headings appear in bold italics and are not part of the Act. (See Interpretation of Legislation Act 1984.)

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