The workers compensation landscape in South Australia will change from 1 July 2015 when the Return to Work Act (RTW Act) comes into effect and jurisdiction in relation to disputes under the Act is assumed by the South Australian Employment Tribunal (the SAET).
In a policy statement circulated by the Attorney General’s Department in April, the Government also announced plans to “confer additional jurisdiction on the SAET as a key step in this reform process, ensuring that South Australia has a contemporary approach to resolving a range of employment-related disputes”.
The policy statement refers to “inconsistencies, duplication and the potential for confusion and complexity for users across jurisdictions” in the current environment of employment‑related dispute resolution in South Australia.
The Government intends to roll the functions of the following jurisdictions into the SAET:
The intention is that all jurisdictions dealing with employment and industrial matters are consolidated within the SAET and supported by the delivery of “consistent and efficient resolution of employment-related disputes for workers and employers”.
The Government is also “considering the transfer of employment-related jurisdictions to the SAET which were originally planned to move to the South Australian Civil and Administrative Tribunal (SACAT)”, including:
The process of dispute resolution in relation to the Return to Work (Workers Compensation) Scheme is broadly similar to the current processes and procedures of the Workers Compensation Tribunal and the members of the SAET are the current presidential members of the WCT. Interviews are presently being conducted for the Conciliation Officers, but appointments are yet to be made.
The Return to Work Act specifically provides that the vesting of jurisdiction in the SAET is intended to achieve an outcome that is “based on quick and efficient decision-making that resolves disputes expeditiously and fairly”. There is an emphasis upon mediation and alternative dispute resolution processes whilst keeping conciliation within a tight timeframe (6 weeks).
Conciliation Officers have increased powers and are required at the conclusion of the conciliation process to provide an assessment of the merits of the dispute and make recommendations for resolution.
The Return to Work Act contains cost provisions which are designed to encourage a culture of expeditious decision-making and genuine conciliation. They include the imposition of a cost liability on professional representatives acting for a party to the proceedings where the representative is shown to have caused costs – “to be incurred improperly or without reasonable cause; or to be wasted by undue delay or negligence or by any other misconduct or default”.
The intention of the cost provisions is clearly, in part, directed towards effecting cultural change to ensure that the process of resolution of disputation in the SAET is not unreasonably delayed.
The SAET allows for a similar process as existed in the Workers Compensation Tribunal, but with a greater emphasis upon mediation and alternative dispute resolution methodology. There appears to be a desire to depart from the usual adversarial approach to one which is more like an investigative process which is directed by SAET rather than the parties.
Conciliation Officers will have greater powers and will be expected to use them, while Presidential members will speed up the process of dispute resolution and make directions accordingly.
Parties to proceedings can expect adverse costs orders if there is any unreasonable delay or obstruction of the conciliation process.
Clearly the combination of the RTWA and the SAET together are intended to have a transformative effect upon employment‑related dispute resolution in South Australia.
The need for claims managers, return to work coordinators and HR professionals to work closely to achieve the best outcomes in workers compensation disputes has never been greater.
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.