A key aim of the State Government’s new workers compensation scheme is to contain the costs of the Compensating Authority.
The Government seeks to achieve this aim through several measures, including the enhancement of provisions directed towards return to work.
The current return to work obligation imposed on the employer under section 58B(1) is retained under the new scheme.
Additionally the new scheme enables an injured worker to formally seek suitable employment from their employer.
Section 18(3) of the new scheme provides for the right to apply for new work which involves the following:
An employer may respond to a written request from an injured worker that they are able to return to work.
An injured worker is also provided with a simple and direct remedy for their return to work.
A failure by the employer to respond, within a reasonable time, to a formal request for a return to work enables the injured worker to apply to the Tribunal for an order that the employer provide them with suitable employment (section 18(3) of the RTW Act).
The Tribunal will have the power to make an order subject to a reasonable test that the employer provide the injured worker with employment.
No time limit has been set as to when an injured worker must make an application to the Tribunal seeking an order that their employer provide them with employment.
The Tribunal’s power is simply enlivened when the employer fails, within a reasonable time, to provide suitable employment to the injured worker.
The Tribunal may order that the employer provide employment, including after the first 104 week period when the right to compensation payments may have ceased.
Significantly, the Tribunal may also order that the employer pay the injured worker’s costs of the dispute regarding the provision of employment.
In the absence of such an order the Compensating Authority is liable for the costs of both the worker and the employer.
An employer of an injured worker will need to be in a position to appropriately respond to a request to return to work with the employer.
The policies and practices of an employer may need to be reviewed to ensure compliance with the enhanced return to work provisions of the new scheme.
In practice, the enhanced return to work provisions can be expected to operate as a cost shifting exercise from the Compensating Authority to employers.
This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this report, or what it means for you, your business or your clients' businesses, please feel free to contact us.