On 24 October 2023, the Legislative Council passed the Workers Compensation and Injury Management Bill 2023 (WA) (‘the Bill’).
The Bill is designed to modernise Western Australia’s existing workers’ compensation laws, which were implemented in 1981. It is, effectively, a complete rewrite of existing workers’ compensation legislation and has over 700 provisions, many of which have far-reaching implications for the worker–employer relationship. The new Act is scheduled to commence on 1 July 2024.
“The passing of this bill is the culmination of more than a decade of intent in the industry to simplify and modernise the worker’s compensation legislation in Western Australia with the intent of supporting injured workers, no matter what their employment arrangements, to get appropriate treatment, recover and return to work post injury, as quickly as possible.”
Samantha Breust
Chief Operating Officer, RediMed
So what exactly does the Bill mean for employers? To answer that question, we’ve summarised some of the key regulatory changes you should be mindful of.
The Workers Compensation Bill: Key Points
A Simpler Definition for ‘Worker’ and ‘Employer’
Section 5 of the Workers’ Compensation and Injury Management Act 1981 (WA) defines ‘worker’ as any person who enters work, service, or apprenticeship under a contract expressed or implied orally or in writing. The new Act simplifies this definition by stating that a worker is any individual whose payment of salaries (allowances, wages, commissions, or bonuses) is subject to PAYG (pay-as-you-go) tax withholdings. The person who makes those payments is the ‘employer’.
Under the new law, PAYG withholding obligations will likely be more relevant than employment contracts in establishing employer–worker arrangements. For example, the term ‘worker’ could also be extended to those working in the modern economy. Employers will need to be more attentive to their employees’ PAYG withholdings.
Increase of the General Limit Amount
Once in effect, the Bill will raise the medical and health expenses general limit amount from 30% to 60% of the general maximum amount. The weekly compensation payments step-down will be extended from 13 to 26 weeks, and the general maximum amount will be calculated using a new indexation methodology.
Additionally, there will be no cap on miscellaneous expenses. Under cl 83, miscellaneous expenses include first aid, emergency transport, wheelchairs and similar appliances, travel, assessment of degree of permanent impairment, surgical appliances and artificial limbs, and repair or replacement of clothing.
Takeaways for Employers
If you accept liability or are found liable for a worker’s injury, they can claim reasonable medical and health expenses (as defined by the Bill) to a sum of up to 60% of the general maximum amount.
Currently, the general maximum is $243,991, which would mean the general limit (or cap) a worker can claim up to is $146,395 – keep in mind, though, that the general maximum can be adjusted by the regulations, which haven’t yet been published. (It’s also worth noting that cls 77 and 78 allow a worker to apply for the general limit to be increased, although not past the general maximum.)
Importantly, you’re required to notify an injured worker once their expenses reach 60% of the general limit (which, with the Bill’s current numbers, would equal $87,837). If you don’t, you’ll incur a $5,000 fine.
Exclusion of Psychological or Psychiatric Disorders
Under the Bill, psychological or psychiatric conditions that result predominantly or wholly from reasonable administrative actions are not classed as ‘injuries from employment’. Administrative actions include:
- worker performance assessments
- counselling
- disciplinary actions
- suspension
- demotions, dismissals, retrenchments, or failures to obtain or retain specific benefits.
Takeaways for Employers
If a worker’s mental health (which, under the Bill, includes nervous system disorders) is affected by a reasonable management decision, they can’t make a compensation claim. Not all mental health-related claims, though, will have a clear line of cause and effect, which is why it’s critical to have robust HR documentation systems.
Make sure you and your team log all relevant administrative actions as soon as they’re made. Each decision should have a clear justification, be free from any perception of bias, and include details such as the time and date, the decision’s background, and any comments made by the affected worker(s).
Return-to-Work Programs Are a Collaborative Effort
The Bill defines a return-to-work program as a ‘program for assisting an injured worker to return to work in a timely, safe, and durable way’. It also recognises return-to-work case conferences – meetings meant to support a worker’s recovery and explore opportunities for returning to work. These can be held by the employer, insurer, or workplace rehabilitation provider.
The employer must facilitate and participate in an injured worker’s return-to-work program. More notably, the Bill places return-to-work obligations on injured workers as well. These duties include:
- making reasonable efforts to return to work
- cooperating in the establishment of a return-to-work program
- complying with reasonable obligations under a return-to-work program
- attending, participating in, and collaborating in return-to-work case conferences
- giving each progress certificate of capacity to the employer or insurer within seven days of receipt.
Takeaways for Employers
The exact requirements around return-to-work programs aren’t defined in the Bill; instead, they’ll be covered by the regulations. It’s likely, though, that your return-to-work programs will need to meet certain minimum standards and required forms, so talk to your workplace health partner once the regulations are published.
The other important factor is detailed under cl 160(3): that your return-to-work programs, as much as reasonably possible, should be developed in consultation with the injured worker. While your programs will need to meet regulatory requirements (and, will, as such, have some sort of standard form), you should be open to adjusting them as per your injured worker’s reasonable requests.
Employer Prohibited From Attending Worker Treatments
Clause 171 prohibits employers, insurers, and agents of insurers from being present during an injured employee’s medical examinations.
Takeaway for Employers
While it might seem reasonable for you, one of your staff, or a representative of your insurer to be in the room during a worker’s medical examination or treatment, the Bill is explicit in its language. Instead, trust your worker’s chosen health provider to conduct an accurate appraisal of their health status.
(Remember, under cl 170, your workers have the right to choose their own treating medical practitioner. You can, however, require that a worker who has claimed compensation be examined (not treated) by your workplace health partner.)
Workers’ Compensation Privacy During Pre-Employment Screening
When the Act commences, employers and employment agencies will be prohibited from asking any person about a worker’s claim history as part of pre-employment screening. This prohibition doesn’t apply to return-to-work programs or positions provided under cl 166.
Takeaway for Employers
You can’t ask a candidate, their former employer, their former colleagues, or anyone else about that candidate’s history of compensation claims. Make sure your HR team and anyone else involved in candidate screening are acutely aware of their obligations – a breach will incur a penalty of $10,000.
Summary
The Workers Compensation and Injury Management Bill brings a raft of changes to the employment scene. If you’re an employer, talk to your workplace health partner or solicitor to understand your obligations.
As a leading provider of end-to-end workplace health and injury treatment services, RediMed specialises in helping you understand and support your workers’ health. To learn more about how we can help your organisation comply with the upcoming Act, schedule a free consultation.
This article is purely informational in nature and should not be construed as legal or medical advice or as a substitute for legal or medical advice. To receive advice specific to your situation, talk to a solicitor or your workplace health partner.
