On 11 March 2010, the Victorian Parliament passed the Accident Compensation Amendment Bill 2009 which has amended the Accident Compensation Act 1985. The reform package is the culmination of the most comprehensive review of Victoria’s Accident Compensation Legislation since its introduction in 1985.
The changes reflect the Government’s response to the independent review carried out in December 2007 by Peter Hanks QC. The reforms include increased entitlements for injured workers, a reduction in red tape for employers, and a greater transparency in decision making processes. Changes will impact employers, injured workers and others who are involved in Victoria’s workers compensation scheme.
As a result of the legislative reforms, a more flexible, outcome focused approach to return to work has been adopted, emphasising the importance of constructive communication, cooperation and active participation as critical elements in achieving positive return to work outcomes. These concepts are now reflected throughout the new return to work sections of the legislation.
There are six key Return To Work obligations for employers:
Provide the worker with suitable or pre-injury employment for the minimum employment obligation period.
Plan for the worker’s return to work.
Consult about the return to work of a worker.
Nominate a Return to Work Coordinator who has an appropriate level of seniority and is competent to assist the employer meet their return to work obligations.
Make information about Return to Work available to all workers.
As a host employer, co-operate with the labour hire organisation to the extent that it is reasonable in respect of action taken by the labour hire organisation to return to worker to work.
While the changes to the legislation provide more flexibility for employers in how they demonstrate compliance with their obligations, there is no reduction in standards.
The penalties associated with breaching return to work obligations have been increased significantly. Return to Work Inspectors have also been provided with new powers to issue Improvement Notices to employers who breach their return to work obligations.
Workers obligations have also changed and, expressed simply, include to:
Actively participate and cooperate in the planning for their return to work,
Actively use occupational rehabilitation services where provided and cooperate with the provider of that service,
Actively participate and cooperate in assessments of their capacity for work, rehabilitation progress and future employment prospects,
Make reasonable efforts to return to work in pre-injury or suitable employment at the worker’s place of employment or at another place of employment, and
Actively participate and cooperate in interviews for the purposes of enhancing their opportunities to return to work.
Some Important Changes
An employer’s obligation to provide suitable or pre-injury employment commences even before the worker’s claim has been accepted. It starts from the earliest of the following dates:
The date they first receive the worker’s medical Certificate of Capacity; or
The date the employer receives a claim for weekly payments; or
The date the employer is notified by their WorkSafe Agent that the worker has made a claim for weekly payments; or
The date the employer is notified by their WorkSafe Agent that the worker has provided them with a medical Certificate of Capacity.
To the extent that it is reasonable to do so, an employer must plan the return to work of their injured worker. This obligation commences from the same date that the obligation period commences.
These changes support the concept of early intervention. Experience shows that helping an injured worker return to safe work sooner – even if it’s on reduced hours and modified or alternative duties – can achieve a better outcome in the long-term.
The employment obligation period continues to be calculated based on the periods of time that a worker has an incapacity for work for an aggregate total of 52 weeks, that is, the periods of time that the worker is unable to undertake their full pre-injury duties and hours.
Planning a worker’s return to work
The legislation will no longer mandate that an employer must complete a written return to work plan or offer of suitable employment. Instead, the employer’s obligation is to plan for a worker’s return to work. This places the emphasis on the action and outcome, rather than the paperwork compliance. It is important to note that this change does not prevent an employer from using written plans to support the return to work planning and consultation process.
Return to Work Coordinators
Peter Hanks recognised the importance of the RTW Coordinator in the return to work process, and accordingly there have been changes that place competency and seniority as core requirements of return to work coordinators.
A RTW Coordinator must have an appropriate level of authority, actual or delegated, and be competent to assist the employer to meet their return to work obligations.
WorkSafe is developing guidance material to help employers and RTW Coordinators in meeting this obligation.
The threshold at which an employer must have a RTW Coordinator appointed at all times has been increased to employer remuneration of $2 million. This threshold will be indexed annually.
Implementation
The changes to the return to work provisions of the Accident Compensation Act 1985 will come into effect from 1 July 2010. The new approach recognises that the needs of employers may vary depending on their size or industry.
Employers are required to meet their Return to Work (RTW) obligations defined as follows:-
Provide suitable or pre-injury employment for a 52 week period.
Plan for an injured workers RTW.
Assess & propose options for suitable work.
Consider reasonable workplace support aids or modification to assist with the RTW process.
Provide workers with clear, accurate and current details of their RTW arrangements.
Monitor RTW progress.
Consult directly with workers, their doctor or healthcare provider about their RTW.
Nominate RTW coordinator who has appropriate level of seniority and is competent to assist you meet your RTW obligations.
Make specific information about RTW available for all workers.
Employers are required to meet these obligations “to the extent that it is reasonable to do so”. The extent that it is reasonable to meet these obligations is affected by factors including:
The size, nature or range of work activities and structure of the organisation does not allow for the provision of suitable or pre-injury employment consistent with the worker’s capacity (in the short term or in the medium to long term).
The employer has insufficient information regarding the workers capacity (Employers are obliged to obtain and clarify this information through planning & consultation activities.)
The financial impact on the employer and the estimated cost of compliance makes providing pre-injury or suitable employment prohibitive.
There will be an unacceptable detrimental impact on any other relevant person as a result of providing pre-injury or suitable employment.
The extent of previous efforts to rehabilitate the worker.
In most circumstances it will be reasonable for employers to comply with each of their RTW obligations
For further assistance with Workers Compensation and Injury Management please contact Brett Pomroy at Crossroads HR on 0428497228
