Workers Rehabilitation and Compensation Act 1988
An Act to provide for the rehabilitation and compensation of workers in respect of occupational injuries suffered by workers, to repeal the Workers' Compensation Act 1927, and for other purposes and to amend the Evidence Act 1910 and the Magistrates Act 1987
[The long title Amended by No. 16 of 1995, s. 4 ][Royal Assent 26 May 1988]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART I - Preliminary
[Section 1 Amended by No. 16 of 1995, s. 5 ]This Act may be cited as the Workers Rehabilitation and Compensation Act 1988 .
(1) This section and section 1 shall commence on the day on which this Act receives the Royal Assent.(2) Except as provided in subsection (1) , this Act shall commence on such day as may be fixed by proclamation.
(1) [Section 3 Subsection (1) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 3 Subsection (1) amended by No. 50 of 1992, s. 4 ][Section 3 Subsection (1) amended by No. 27 of 1993, s. 35 and Sched. 3 ][Section 3 Subsection (1) amended by No. 43 of 1993, s. 4 ][Section 3 Subsection (1) amended by No. 44 of 1993, s. 20 ][Section 3 Subsection (1) amended by No. 49 of 1994, s. 4 ][Section 3 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ][Section 3 Subsection (1) amended by No. 16 of 1995, s. 6 ][Section 3 Subsection (1) amended by No. 48 of 1996, s. 4 ]In this Act, unless the contrary intention appears –accredited medical practitioner means a medical practitioner accredited under section 77C ;accredited person means a person (other than a medical practitioner) accredited under section 77C ;applicant means a person who has referred a claim for compensation to the Tribunal under this Act or an agent of that person;application means an application referred to in section 42 (2) ;authorized officer means a person appointed as, or authorized to perform the functions and exercise the powers of, an authorized officer under section 150A ;barrister means a barrister within the meaning of the Legal Profession Act 1993 ;Board means the Workplace Safety Board of Tasmania established under section 8 ;Chief Commissioner means the Chief Workers Rehabilitation and Compensation Commissioner appointed and holding office under section 17A ;[Section 3 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Chief Executive means the Head of the State Service Agency in which this Act is administered;claim for compensation means a claim for compensation under this Act and includes any matter or question arising in connection with or incidental to such a claim;Commissioner means a Workers Rehabilitation and Compensation Commissioner appointed and holding office under section 17B ;de facto spouse means a person who cohabited with a worker of the opposite sex as the spouse of that worker, although not legally married to that worker, for at least 3 years immediately before that worker died or suffered an injury;dependants means such members of the family of the worker in relation to whom the term is used as –(a) were dependent, wholly or in part, upon the earnings of that worker at the time of his death; or(b) would have been so dependent but for the incapacity due to the injury;disease means any ailment, disorder, defect, or morbid condition, whether of sudden or gradual development;employer means the person with whom a worker has entered into a contract of service or training agreement, notwithstanding that that person may have temporarily lent, or let on hire, the services of that worker to some other person, and includes the Crown, any body of persons (corporate or unincorporate), and the legal personal representative of a deceased employer;financial year means the period of 12 months ending on the last day of June;Fund means the Workers Rehabilitation and Compensation Fund established under section 145 ;industrial deafness means permanent loss of hearing caused by exposure to industrial noise in a worker's employment;injury includes a disease;insurer means a body corporate authorized under the Insurance Act 1973 of the Commonwealth to carry on insurance business and includes a person who, at the time a relevant policy of insurance or indemnity was taken out, was so authorized;licence means a licence issued and in force under Division 2 of Part IX ;licensed insurer means an insurer who is the holder of a licence and includes a specialized insurer;long service leave, used in relation to a worker, means long service leave to which that worker is entitled –(a) under the Long Service Leave Act 1976 , any award relating to long service leave under the Industrial Relations Act 1988 of the Commonwealth, or any Act or award referred to in section 3 of that Act; or(b) by virtue of the operation of such a scheme as is referred to in section 7 of the Long Service Leave Act 1976 ;medical practitioner means a person who is resident in a State or Territory of the Commonwealth and is entitled to practise as a medical practitioner in accordance with the laws of that State or Territory;medical question means a question relating to –(a) the fitness for work of a worker in respect of whom a claim for compensation has been made;(b) the nature of an injury suffered by a worker;(c) the extent of the incapacity for work of an injured worker;(d) whether the incapacity of a worker is permanent or temporary;(e) where a worker has suffered any permanent partial incapacity as a result of an injury, the nature and extent of that incapacity;(ea) whether a worker's incapacity allows the worker to undertake suitable alternative duties or participate in a rehabilitation program; or(f) the duration of any period of incapacity resulting from an injury suffered by a worker; or(g) the nature or necessity of any treatment recommended or required to be undergone by a worker as a result of an injury suffered by the worker –and includes a question relating to –(h) the day on which an injury to a worker occurred; or(ha) the day on which a worker became totally or partially incapacitated by reason of an injury; or(i) whether the employment of a worker contributed to a substantial degree to an injury suffered by the worker;member of the family, in relation to a worker, means –(a) the wife or husband, de facto spouse, father, step-father, grandfather, mother, step-mother, grandmother, son, grandson, daughter, grand-daughter, step-son, step-daughter, brother, sister, half-brother, and half-sister of that worker; or(b) a person to whom the worker stood in loco parentis;mining employee means a worker who is engaged in mining operations under a contract of service or apprenticeship with an employer, whether the contract is express or implied or is oral or in writing;mining operations means –but does not include sluicing, dredging or any similar operations or mining for coal or shale, or the quarrying or crushing of any materials required for the construction or maintenance of roads;(a) the disturbing, removing, carting, carrying, sifting, smelting, refining, crushing or otherwise dealing with or treating any rock, stone, quartz, clay, sand, soil, ore or mineral by any method for the purpose of obtaining metals or minerals or for prospecting for metals or minerals; and(b) any process in connection with the dealing with, treating or handling of, any rock, stone, quartz, clay, sand, soil, ore or mineral for that purpose; and(c) the dealing with, treating or handling, in connection with a process mentioned in paragraph (a) or (b) , of any by-products or residues produced by, or arising from, that process; and(d) the cutting, dressing, shaping or working on any stone, granite, marble or other similar substance; and(e) the quarrying of blue metal or freestone; and(f) the driving of a tunnel –motor vehicle has the same meaning as it has in the Motor Accidents (Liabilities and Compensation) Act 1973 ;Nominal Insurer means the body established as the Nominal Insurer under section 121 ;outworker means a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired, or adapted for sale, in premises not under the management or control of the person giving them out;part-time Commissioner means a person appointed and holding office under section 19 as a part-time Workers Rehabilitation and Compensation Commissioner;permit means a permit issued and in force under Division 2 of Part IX ;place of residence includes the curtilage, messuages, and appurtenances of the place of residence;police officer has the meaning assigned to that expression by the Police Regulation Act 1898 ;policy of insurance means a policy of insurance that an employer is required to maintain under section 97 (1) ;practitioner means a legal practitioner within the meaning of the Legal Profession Act 1993 ;Registrar means the Registrar of the Tribunal appointed and holding office under section 23A ;the regulations means the regulations made and in force under this Act;repealed Act means the Workers' Compensation Act 1927 ;second injury scheme means a scheme established by the Board to encourage the employment of injured workers by providing financial incentives to employers in relation to insurance liabilities arising from further injuries to the injured workers;self-insurer means an employer who is the holder of a permit;specialized insurer means an insurer or proposed insurer whose business is, or is intended to be, specialized insurance for employers of a particular class or particular classes;training agreement has the same meaning as it has in the Vocational Education and Training Act 1994 ;Tribunal means the Workers Rehabilitation and Compensation Tribunal established under section 16 ;weekly payment means a weekly rate payment determined in accordance with section 69 ;worker means any person who has entered into, or works under, a contract of service or training agreement with an employer, whether by way of manual labour, clerical work, or otherwise, and whether the contract is express or implied, or is oral or in writing, and, used in relation to a person who has been injured and is dead, the term includes the legal personal representatives or dependants of that person or other person to whom or for whose benefit compensation is payable;workers' compensation insurance business means the business of insuring employers against the employers' liability to their workers under this Act;working day, in relation to a worker's place of employment, means any day on which work is normally carried on at that place.(2) For the purposes of this Act, a person who is engaged in plying for hire with a vehicle or vessel, the use of which is obtained from the owner of the vehicle or vessel under a contract of bailment (other than a hire-purchase agreement) in consideration of the payment of a fixed sum or a share in the earnings of the vehicle or vessel, shall be deemed to be a worker employed by that owner.(2A) [Section 3 Subsection (2A) inserted by No. 16 of 1995, s. 6 ]For the purposes of this Act, employment is taken to have contributed to a disease to a substantial degree if it is the major or most significant factor.(3) For the purposes of this Act, the exercise and performance of the powers and duties of a local or other public authority shall be deemed to be the carrying on by such authority of a trade or business.(4) At the request of the governing body of a church, the Minister –and the notice so published has effect according to its terms as if they were provided in this Act.(a) may, by notice published in the Gazette, declare that clergymen, as defined in the notice, of that church shall be deemed to be workers for the purposes of this Act and, where he makes such a declaration, the Minister shall also declare, in the same notice, by whom such clergymen are, for those purposes, deemed to be employed; and(b) may at any time, by subsequent notice so published, revoke or amend the first-mentioned notice –(5) For the purposes of this Act, where a worker suffers an injury that is a disease, that injury shall be deemed to have occurred –(a) on the day on which the worker became totally or partially incapacitated by reason of that injury; or(b) if a day cannot be ascertained under paragraph (a) , on the day on which a medical practitioner has certified that the worker was first incapacitated by reason of that injury.(5A) [Section 3 Subsection (5A) inserted by No. 16 of 1995, s. 6 ]Nothing in subsection (5) precludes a worker who suffers from industrial deafness from maintaining a claim for compensation under the relevant provisions of this Act notwithstanding that the deafness did not cause incapacity.(6) [Section 3 Subsection (6) amended by No. 50 of 1992, s. 10 ][Section 3 Subsection (6) amended by No. 16 of 1995, s. 6 ]Where a medical practitioner is unable to certify as to the day on which a worker was first incapacitated by reason of an injury referred to in subsection (5) or where there is a dispute as to the day on which such an injury occurred, the matter may be referred by the worker or his employer, to the Tribunal for determination as to the day on which the injury occurred and the day so determined by the Tribunal shall be deemed to be the day on which that injury occurred.
(1) This Act binds the Crown, not only in right of Tasmania but also, so far as the legislative power of Parliament permits, in all its other capacities and, accordingly, applies in respect of a worker employed by or on behalf of the Crown.(2) For the purposes of this Act, a police officer shall be deemed to be in the service of the Crown.(3) This Act does not apply in respect of an injury which occurred before the day fixed under section 2 (2) .(4) In relation to an injury to which this Act does not apply by virtue of subsection (3) , the repealed Act continues to apply as if this Act had not been enacted and any claim, application, matter, or proceeding in relation to such an injury shall be heard and determined as if this Act had not been enacted.(5) This Act shall not apply to any person –and no such person shall be deemed to be a worker within the meaning of this Act.(a) whose employment is of a casual nature, and who is employed otherwise than for the purposes of the employer's trade or business;(b) who is an outworker;(c) who is a domestic servant in a private family, and has not completed 48 hours' employment with the same employer at the time when he suffers injury; or(d) who is a member of the crew of a fishing boat, and is remunerated wholly or mainly by a share in the profits or gross earnings of that boat –
5. Persons employed in fire-fighting operations and fire prevention operations
(1) [Section 5 Subsection (1) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 5 Subsection (1) amended by No. 48 of 1996, s. 5 ]A person who, otherwise than under a contract for services, a contract of service, or training agreement with the Secretary of the responsible Department in relation to the Fire Service Act 1979 , the State Fire Commission or any brigade within the meaning of the Fire Service Act 1979 , engages in fire-fighting operations or fire prevention operations with the consent of or under the authority of or in co-operation with the Secretary of that responsible Department, the State Fire Commission or any brigade within the meaning of the Fire Service Act 1979 shall, while so engaged, be deemed to be a worker employed by the Crown.(2) [Section 5 Subsection (2) amended by No. 16 of 1995, s. 7 ]For the purposes of assessing the compensation payable to or in respect of a person to whom subsection (1) applies, his normal weekly earnings shall –(a) if he was working under a contract of service with any person immediately before engaging in the operations referred to in that subsection, be computed according to his earnings under that contract; and(b) if he was not working under a contract of service immediately before engaging in those operations, be an amount calculated as prescribed in the regulations.(3) In this section –fire-fighting operations includes –(a) any act that is necessary or expedient for or directed towards –(i) extinguishing a fire;(ii) preventing the spread of a fire;(iii) saving life or preventing injury to persons by a fire;(iv) preventing property from being destroyed or damaged by fire;(v) providing sustenance for persons performing any act referred to in subparagraphs (i) , (ii) , (iii) , and (iv) ; or(vi) taking action to prevent the outbreak of fire; and(b) the undergoing of training in relation to all or any acts specified in subparagraphs (i) , (ii) , (iii) , (iv) , or (vi) ;fire prevention operations means any operations carried on, or any work or other acts done, for the purpose of preventing the outbreak of fire or abating the danger of fire, and includes the undergoing of training in relation to any of those operations or acts or that work.(4) For the purposes of this section any meeting, competition, or demonstration related to the prevention, control, or extinguishment of fires shall be deemed to be training.
6. Persons engaged in providing ambulance services
(1) [Section 6 Subsection (1) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 6 Subsection (1) amended by No. 48 of 1996, s. 6 ]A person who, otherwise than under a contract for services, a contract of service, or training agreement with the Secretary of the responsible Department in relation to the Ambulance Service Act 1982 or the Director, engages in ambulance services with the consent of or under the authority of or in co-operation with the Secretary of that responsible Department, the Director or any officer of the Ambulance Service (or in pursuance of an arrangement made with him by the Director in the exercise of the performance of his functions under the Ambulance Service Act 1982 ) shall, while so engaged, be deemed to be a worker employed by the Crown.(2) [Section 6 Subsection (2) amended by No. 16 of 1995, s. 8 ]For the purpose of assessing the compensation payable to or in respect of a person to whom subsection (1) applies, his normal weekly earnings shall –(a) if he was working under a contract of service with any person immediately before engaging in ambulance services pursuant to that subsection, be computed according to his earnings under that contract; and(b) if he was not working under a contract of service immediately before engaging in ambulance services pursuant to that subsection, be an amount calculated as prescribed in the regulations.(3) References in this section to engaging in ambulance services shall be construed as including references to the undergoing of training or instruction in those services.(4) For the purposes of this section, ambulance services, Director, and officer of the Ambulance Service have the meaning assigned to those expressions by section 3 of the Ambulance Service Act 1982 .
[Section 6A Inserted by No. 16 of 1995, s. 9 ](1) [Section 6A Subsection (1) amended by No. 48 of 1996, s. 7 ] A person who, otherwise than under a contract for services, contract of service or training agreement with the Secretary of the responsible Department in relation to the Police Regulation Act 1898 , performs police operations with the consent of, under the authority of, or in co-operation with, the Secretary of that responsible Department is, while so engaged, taken to be a worker employed by the Crown.(2) For the purpose of assessing the compensation payable to or in respect of a person to whom subsection (1) applies, the normal weekly earnings of that person are –(a) if the person was working under a contract of service with any person immediately before assisting the police officer, to be computed according to the person's earnings under that contract; and(b) if the person was not working under a contract of service immediately before assisting the police officer, to be an amount calculated as prescribed.(3) For the purposes of subsection (1) , police operations means –(a) marine search and rescue operations within the meaning of the Marine Search and Rescue Act 1971 ; and(b) operations required for the purpose of searching for or bringing to safety –(i) persons in danger in the State; or(ii) persons in need of assistance as a result of a casualty occurring in the State; or(iii) persons suffering from illness or injury in the State who require assistance that is not immediately available to them; and(c) operations required for the purpose of protecting property in the State.
6B. Prescribed classes of volunteers
[Section 6B Inserted by No. 16 of 1995, s. 9 ](1) Persons of a prescribed class who voluntarily perform work of a prescribed class which is of benefit to the State are taken to be workers employed by the Crown.(2) For the purpose of assessing the compensation payable to or in respect of a person to whom subsection (1) applies, the normal weekly earnings of that person are –(a) if the person was working under a contract of service with any person immediately before voluntarily performing work of the prescribed class, to be computed according to the person's earnings under that contract; and(b) if the person was not working under a contract of service immediately before voluntarily performing work of the prescribed class, to be an amount calculated as prescribed.
7. Exclusion of certain persons who are contestants in sporting activities
A person is deemed not to be a worker within the meaning of this Act while he is, pursuant to a contract –if, under that contract, he is not entitled to any remuneration other than remuneration for the doing of those things.(a) participating as a contestant in any sporting or athletic activity;(b) engaged in training or preparing himself with a view to his so participating; or(c) travelling in connection with his so participating or being so engaged –
7A. Part V to apply to all claims for compensation, &c., referred to Tribunal
[Section 7A Inserted by No. 50 of 1992, s. 5 ][Section 7A Amended by No. 16 of 1995, s. 91 and Sched. 1 ]Where in this Act it is provided that any claim for compensation or any dispute relating to a claim for compensation may or must be referred to the Tribunal by any person, a person who refers a claim for compensation or a dispute relating to such a claim to the Tribunal in pursuance of such a provision must do so in accordance with section 42 and the provisions of Part V apply to the determination, resolution or review of the claim for compensation or dispute.
PART II - Administration
Division 1 - Workplace Safety Board of Tasmania[Division 1 of Part II Heading substituted by No. 16 of 1995, s. 10 ]
8. Workplace Safety Board of Tasmania
[Section 8 Substituted by No. 16 of 1995, s. 11 ](1) The Workplace Safety Board of Tasmania is established.(2) The corporate name of the Board is Workplace Safety Tasmania.(3) The Board –(a) is a body corporate with perpetual succession; and(b) has a common seal; and(c) may sue and be sued in its corporate name.
[Section 9 Substituted by No. 16 of 1995, s. 12 ](1) [Section 9 Subsection (1) amended by No. 48 of 1996, s. 8 ]The Board consists of –(a) a person nominated by the Minister who is to be the chairperson; and(b) subject to subsections (2) and (3) , a person nominated by the Minister from a list of 3 names submitted to the Minister by the Tasmanian Chamber of Commerce and Industry Ltd; and(c) subject to subsection (3) , a person nominated by the Minister from a list of 3 names submitted to the Minister by the Tasmanian Trades and Labor Council; and(d) the Director of Industry Safety appointed under the Workplace Health and Safety Act 1995 ; and(e) two persons nominated by the Minister; and(f) a medical practitioner nominated by the Minister.(2) Before submitting a list of names to the Minister for the purposes of subsection (1) (b) , the body referred to in that paragraph is to consult with such other bodies representing the interests of employers as it considers necessary.(3) If the Minister is not satisfied that any of the persons whose names appear on a list submitted to the Minister under paragraph (b) or (c) of subsection (1) are suitable for appointment to the Board, the Minister may require a body referred to in those paragraphs to submit another list of names.(4) [Section 9 Subsection (4) amended by No. 48 of 1996, s. 8 ]The members of the Board referred to in subsection (1) (a) , (b) , (c) , (e) and (f) are to be appointed by the Governor.(5) In nominating a person for appointment as a member of the Board, the Minister is to take into account –(a) the functions of the Board; and(b) the skills required of a member to enable the Board to carry out its functions effectively.(6) The Minister may require a body referred to in subsection (1) (b) or (c) to submit a list of names within a specified period (being a period of not more than 2 months).(7) If a body referred to in paragraph (b) or (c) of subsection (1) fails to comply with subsections (3) or (6) , the Minister may nominate a person for the purposes of those paragraphs.(8) If a body referred to in paragraph (b) or (c) of subsection (1) changes its name, the Governor may, by order, amend that paragraph by substituting the body's new name.(9) If a body referred to in paragraph (b) or (c) of subsection (1) ceases to exist, the Governor, on the recommendation of the Minister, may, by order, amend that paragraph by substituting the name of a body which the Governor is satisfied substantially represents the interests represented by the first-mentioned body.(10) The provisions of section 47 (3) , (3A) , (4) , (5) , (6) and (7) of the Acts Interpretation Act 1931 apply to an order made under subsection (9) as if the order were regulations within the meaning of that Act.(11) Schedule 1 has effect with respect to membership of a Board.(12) Schedule 2 has effect with respect to meetings of a Board.
[Section 10 Amended by No. 16 of 1995, s. 13 ]In addition to the functions conferred or imposed on it by any other provision of this Act or any other Act, the Board has the following functions:(a) to advise the Minister on matters relating to workers rehabilitation and compensation in this State;(b) to oversee the operation of workers rehabilitation and compensation procedures;(c) to promote understanding of this Act through education, promotion or any other appropriate means;(d) to inquire into and keep under review the incidence and cost of occupational injuries and disease;(e) to review the performance of licensed insurers and self-insurers and the operation of the Nominal Insurer;(f) to review and monitor premium rates charged by licensed insurers;(g) to ensure, so far as is practicable, the efficient operation of workers rehabilitation and compensation insurance arrangements;(h) to review, evaluate and advise the Minister on rehabilitation programs and practices;(i) to promote and support the effective occupational rehabilitation of injured workers and their early return to work;(j) to review the performance of accredited medical practitioners and accredited persons;(k) to manage the Workers Rehabilitation and Compensation Fund;(l) to collect sufficient data to enable an actuary to conduct an annual review of the operation and performance of workers rehabilitation and compensation arrangements under this Act;(m) such other functions as may be prescribed.
(1) The Board may do all things necessary and convenient to be done for or in connection with, or incidental to, the performance of its functions under this Act or any other Act.(2) The generality of subsection (1) shall not be taken to be limited by any other provision of this Act conferring a power on the Board.(3) The Board may establish committees to advise the Board on any aspect of its functions.(4) [Section 11 Subsection (4) inserted by No. 16 of 1995, s. 14 ]The Board may establish and administer a second injury scheme.
11A. Minister may give directions
[Section 11A Inserted by No. 16 of 1995, s. 15 ](1) The Minister may give a direction in writing to the Board with respect to the performance of its functions and the exercise of its powers under this or any other Act.(2) If the Board has been given a written direction under subsection (1) , the Board is to publish that direction in its next annual report under section 15 .(3) Within 21 days after receiving a direction under subsection (1) , the Board may object to the direction on any ground.(4) An objection is to –(a) be in writing; and(b) specify the grounds for the objection; and(c) be provided to the Minister.(5) If, after receiving an objection, the Minister determines that a direction is not to be withdrawn or amended, the Minister must cause a copy of the direction and the objection to be laid before each House of Parliament within 10 sitting days of receiving the objection.(6) The Board must perform its functions and exercise its powers in a manner that is consistent with a direction if –(a) the Board has not objected to the direction within the period specified in subsection (3) ; or(b) the Board has objected to the direction and the direction has been tabled in both Houses of Parliament; or(c) the Board has withdrawn its objection.
(1) A member of the Board who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Board (otherwise than as a member of, and in common with the other members of, an incorporated company consisting of not less than 25 persons and of which he is not a director) shall, as soon as possible after the relevant facts have come to his knowledge, disclose the nature of his interest at a meeting of the Board.(2) A disclosure under subsection (1) shall be recorded in the minutes of the meeting of the Board and the member shall not be present during, or take part in, any deliberation or decision of the Board in relation to that matter.
(1) The Board may, by instrument in writing under its common seal, delegate to a person specified in the instrument the performance or exercise of such of its functions and powers under this Act or any other Act (other than this power of delegation) as are specified in the instrument, and may, by instrument in writing under its common seal, revoke wholly or in part any such delegation.(2) A function or power the performance or exercise of which has been delegated under this section may, while the delegation remains unrevoked, be performed or exercised from time to time in accordance with the terms of the delegation.(3) A delegation under this section may be made subject to such conditions or limitations as to the performance or exercise of any of the functions or powers delegated, or as to time or circumstance, as are specified in the instrument.(4) Notwithstanding any delegation under this section, the Board may continue to perform or exercise all or any of the functions or powers delegated.(5) Any act or thing done by, or to, a delegate of the Board while acting in the exercise of a delegation under this section shall have the same force and effect as if the act or thing had been done by, or to, the Board and shall be deemed to have been done by, or to, the Board.(6) An instrument purporting to be signed by a delegate of the Board in his capacity as such a delegate shall in all courts and before all persons acting judicially be received in evidence as if it were an instrument executed by the Board under seal and, until the contrary is proved, shall be deemed to be an instrument signed by a delegate of the Board under this section.(7) Where the exercise of a power by the Board is dependent on the opinion or belief of the Board, a delegate of the Board under this section may, in exercising that power, act on his own opinion or belief.
(1) [Section 14 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Board may, with the approval of the Head of a State Service Agency, appoint a State Service officer or State Service employee employed in that Agency to be secretary to the Board and that officer or employee may hold that office in conjunction with State Service employment.(2) [Section 14 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Board may make arrangements with the Head of a State Service Agency for such State Service officers and State Service employees employed in that Agency as may be necessary to be made available to the Board to enable it to perform its functions under this Act, and such officers and employees may, in conjunction with State Service employment, serve the Board in any capacity.
(1) [Section 15 Subsection (1) amended by No. 16 of 1995, s. 16 ]The Board shall, not later than 30 November after the end of each financial year, submit to the Minister, in relation to that financial year, a report of its operations.(1A) [Section 15 Subsection (1A) inserted by No. 16 of 1995, s. 16 ]The report of the Board referred to in subsection (1) is to include the review of the actuary referred to in section 10 (l) .(2) The Minister shall cause a copy of the report referred to in subsection (1) to be laid on the table of each House of Parliament within the first 15 sitting days of the House after the report is received by him.
Division 2 - Workers Rehabilitation and Compensation Tribunal[Division 2 of Part II Heading amended by No. 16 of 1995, s. 91 and Sched. 1 ]
16. Establishment of Workers Rehabilitation and Compensation Tribunal
[Section 16 Substituted by No. 16 of 1995, s. 17 ]The Workers Rehabilitation and Compensation Tribunal is established.
[Section 17 Substituted by No. 16 of 1995, s. 17 ]The Tribunal is constituted by the Chief Commissioner, a Commissioner or a part-time Commissioner.
17A. Chief Workers Rehabilitation and Compensation Commissioner
[Section 17A Inserted by No. 16 of 1995, s. 17 ](1) The Governor may appoint a Chief Workers Rehabilitation and Compensation Commissioner.(2) A person is not eligible for appointment as Chief Commissioner unless he or she is a practitioner or barrister of not less than 5 years' standing.(3) Schedule 3 has effect with respect to the term of office and conditions of service of the Chief Commissioner.
17B. Workers Rehabilitation and Compensation Commissioner
[Section 17B Inserted by No. 16 of 1995, s. 17 ](1) The Governor may appoint Workers Rehabilitation and Compensation Commissioners.(2) A person is not eligible for appointment as a Commissioner unless he or she is a practitioner or barrister of not less than 5 years' standing.(3) Schedule 3 has effect with respect to the term of office and conditions of service of a Commissioner as if references to the Chief Commissioner were read as references to a Commissioner and the reference in clause 7 (1) (e) (i) to the Minister were read as a reference to the Chief Commissioner.
(1) [Section 18 Subsection (1) amended by No. 16 of 1995, s. 18 ]The Governor may, by instrument in writing, appoint a person who is a practitioner or barrister of not less than 5 years' standing to act in the office of the Chief Commissioner –(a) during a vacancy in that office; or(b) during any period, or during all periods, when the Chief Commissioner is absent from duty or from Tasmania or is, for any other reason, unable to perform the functions of his office.(2) A person shall not be appointed under subsection (1) for a period exceeding 12 months.(3) An appointment of a person under subsection (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.(4) [Section 18 Subsection (4) amended by No. 16 of 1995, s. 18 ]A person appointed under subsection (1) , to whom a matter has been referred whilst that person is acting in the office of the Chief Commissioner, may continue to hear and determine that matter notwithstanding that he has ceased to act in that office.(5) [Section 18 Subsection (5) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 18 Subsection (5) amended by No. 16 of 1995, s. 18 ]The provisions of the State Service Act 2000 do not apply to or in respect of the appointment by the Governor of a person under subsection (1) and a person so appointed under that subsection is not, while he is acting in the office of Chief Commissioner pursuant to the appointment, subject to the provisions of that Act.(6) [Section 18 Subsection (6) amended by No. 16 of 1995, s. 18 ]Where a person is acting in the office of the Chief Commissioner in accordance with subsection (1) (b) and the office becomes vacant while that person is so acting, then, subject to subsection (3) , that person may continue to act in the office until the Governor otherwise directs, the vacancy is filled, or a period of 12 months from the date on which the vacancy occurred expires, whichever first happens.(7) The Governor may terminate the appointment of a person under this section at any time.(8) The Governor may determine the terms and conditions of appointment, including remuneration and allowances, of a person appointed under this section.(9) [Section 18 Subsection (9) amended by No. 16 of 1995, s. 18 ]Where a person is acting in the office of the Chief Commissioner in pursuance of an appointment under this section, he has, and may exercise, all the powers, and he may perform all the functions, of the holder of that office under this Act or any other law.(10) [Section 18 Subsection (10) amended by No. 16 of 1995, s. 18 ]All things done or omitted to be done by a person acting in the office of the Chief Commissioner shall be as valid, and have the same consequences, as if they had been done or omitted to be done by the Chief Commissioner.(11) The validity of anything done by or in relation to a person purporting to act under subsection (1) shall not be called in question on the ground that the occasion for his appointment had not arisen, that there is a defect or irregularity in or in connection with his appointment, that the appointment had ceased to have effect, or that the occasion for him to act had not arisen or had ceased.(12) A person appointed under subsection (1) may at any time resign his office by writing under his hand delivered to the Governor.
19. Part-time Workers Rehabilitation and Compensation Commissioners
[Section 19 Subsection (1) amended by No. 16 of 1995, s. 19 ](1) [Section 19 Subsection (1) amended by No. 13 of 1989, s. 19 ]The Governor may, by instrument in writing, appoint such number of persons each of whom is a practitioner or barrister of not less than 5 years' standing as he considers necessary to be part-time Workers Rehabilitation and Compensation Commissioners –(a) where, by reason of any direct or indirect interest that the Chief Commissioner has or may have in respect of any claims for compensation, he considers it appropriate or necessary to disqualify himself from hearing and determining those claims for compensation; or(b) for the purpose of preventing or lessening delay in hearing and determining claims for compensation.(2) [Section 19 Subsection (2) amended by No. 16 of 1995, s. 19 ]An instrument of appointment for the purposes of subsection (1) shall specify the terms and conditions to which the appointment is subject, including, without limiting the generality of the foregoing, terms and conditions with respect to the remuneration and allowances payable to the part-time Commissioner to whom the instrument relates and the period or periods during which he shall exercise the powers and perform the functions of the Tribunal.(3) The Governor may, at any time, terminate the appointment of a person as a part-time Commissioner under this section.(4) [Section 19 Subsection (4) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The provisions of the State Service Act 2000 do not apply to or in respect of the appointment by the Governor of a person as a part-time Commissioner under this section and a person so appointed under this section is not, in his capacity as a part-time Commissioner, subject to the provisions of that Act during his term of office as a part-time Commissioner.(5) [Section 19 Subsection (5) omitted by No. 16 of 1995, s. 19 ]. . . . . . . .(6) [Section 19 Subsection (6) omitted by No. 16 of 1995, s. 19 ]. . . . . . . .(7) [Section 19 Subsection (7) omitted by No. 16 of 1995, s. 19 ]. . . . . . . .(8) The validity of anything done by or in relation to a person purporting to exercise the powers, and perform the functions, referred to in subsection (5) shall not be called in question on the ground that the occasion for his appointment had not arisen, that there is a defect or irregularity in or in connection with his appointment, that the appointment had ceased to have effect, or that the occasion for him to act had not arisen or had ceased.(9) A person appointed under subsection (1) may at any time resign his office by writing under his hand delivered to the Governor.
[Section 20 Amended by No. 44 of 1993, s. 21 ][Section 20 Amended by No. 68 of 1994, s. 3 and Sched. 1 ][Section 20 Amended by No. 16 of 1995, s. 91 and Sched. 1 ]The functions of the Tribunal are as follows:(a) to determine all claims for compensation referred to it under this Act;(b) to determine such other matters as are referred to it under this Act;(c) to exercise the powers conferred, and the duties imposed, on it elsewhere in this Act;(d) to hear and determine any appeal referred to the Tribunal under the Workers' (Occupational Diseases) Relief Fund Act 1954 .
21. Chief Commissioner responsible for administrative co-ordination, &c., of Tribunal
[Section 21 Substituted by No. 16 of 1995, s. 20 ]The Chief Commissioner is responsible for the administrative co-ordination of the Tribunal and the allocation of the work of the Tribunal.
(1) [Section 22 Subsection (1) amended by No. 43 of 1993, s. 5 ][Section 22 Subsection (1) amended by No. 16 of 1995, s. 21 ]The record of the Tribunal in respect of a proceeding consists of –(a) the application lodged with the Registrar that relates to that proceeding;(b) a summary of the facts of the matter to be resolved in the relevant claim for compensation as determined and recorded by the Tribunal during the hearing of that claim;(c) any written medical advice or medical opinion provided to the Tribunal pursuant to section 54 by a medical panel to which, or a medical practitioner to whom, a medical question has been referred pursuant to section 49 (3) ;(d) the tape recording made pursuant to section 56 (2) ;(e) any notes of the proceeding made by the Tribunal; and(f) any order made by the Tribunal in relation to that proceeding.(2) [Section 22 Subsection (2) amended by No. 16 of 1995, s. 21 ]The record of the Tribunal in respect of a proceeding –(a) shall be open for inspection free of charge by a party to the proceeding and a person acting with the authority of a party to the proceeding; and(b) shall be available for production before a court or a judge for the purposes of any proceedings before the court or judge.
[Section 23 Substituted by No. 16 of 1995, s. 22 ](1) The Tribunal has jurisdiction to perform the functions imposed, and exercise the powers conferred, on it under this Act or any other Act.(2) Proceedings in respect of compensation under this Act may not be brought before any person, court or tribunal other than the Tribunal.(3) Subsection (2) does not apply to appeals to the Supreme Court in respect of any proceedings before the Tribunal.
23A. Registrar and deputy registrars of Tribunal
[Section 23A Inserted by No. 16 of 1995, s. 23 ](1) [Section 23A Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Chief Executive, on the recommendation of the Chief Commissioner, may appoint a State Service officer or State Service employee employed in the Department to be Registrar of the Tribunal and State Service officers and State Service employees employed in the Department to be deputy registrars of the Tribunal, and those officers and employees hold office in conjunction with State Service employment.(2) The Registrar has and may exercise such functions and powers as are imposed or conferred under this Act or any other Act.(3) A deputy registrar of the Tribunal may exercise any of the functions and powers of the Registrar and any act or other thing done by or before a deputy registrar has the same force and effect as if it were done by or before the Registrar.
[Section 24 Inserted by No. 16 of 1995, s. 23 ](1) The Chief Commissioner, not later than 30 November after the end of each financial year, is to prepare and give to the Minister a report on the operation of the Tribunal during that financial year.(2) The Minister is to cause a copy of the report referred to in subsection (1) to be laid on the table of each House of Parliament within the first 15 sitting days of the House after the report is received by the Minister.
Division 3 - . . . . . . . .[Part II, Div. 3 Repealed by No. 43 of 1993, s. 6 ][Section 24 Repealed by No. 43 of 1993, s. 6 ]. . . . . . . .
PART III - Entitlement to compensation
25. Liability of employers to compensate workers for injuries
(1) If in any employment –(a) a worker suffers an injury, not being a disease, arising out of and in the course of his employment; or(b) a worker suffers an injury, which is a disease, arising out of and in the course of his employment and to which his employment contributed to a substantial degree –his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act –(c) to the worker; or(d) if the injury results in the death of the worker, to the persons who are the worker's dependants at the date of his death or who would, but for any incapacity due to the injury, have been his dependants.(1A) [Section 25 Subsection (1A) inserted by No. 16 of 1995, s. 24 ]Compensation is not payable under this Act in respect of a disease which arises substantially from –(a) reasonable action taken in a reasonable manner by an employer to transfer, demote, discipline or counsel a worker or to bring about the cessation of a worker's employment; or(b) a decision of an employer, based on reasonable grounds, not to award or provide a promotion, transfer or benefit in connection with a worker's employment; or(c) reasonable administrative action taken in a reasonable manner by an employer in connection with a worker's employment; or(d) the failure of an employer to take action of a type referred to in paragraph (a) , (b) or (c) in relation to a worker in connection with the worker's employment if there are reasonable grounds for not taking that action; or(e) reasonable action under this Act taken in a reasonable manner affecting a worker.(2) [Section 25 Subsection (2) amended by No. 16 of 1995, s. 24 ]Compensation is not payable under this Act in respect of –(a) any injury which is –(i) attributable to the serious and wilful misconduct of the worker, unless the injury results in the death or serious and permanent incapacity of the worker; or(ii) an intentional self-inflicted injury;(b) the disease known as undulant fever or brucellosis, unless an accredited medical practitioner has certified in writing that he is satisfied as to the result of the pathological examination of the blood of the worker that the worker is suffering from that disease; or(c) any disease, including the disease mentioned in paragraph (b) , in any case where the worker, at the time of entering his employment, wilfully and falsely represented himself in writing as not having previously suffered from that disease.(3) For the purposes of this Act, an employer is liable, subject to subsection (1) , to pay compensation pursuant to that subsection in respect of an injury suffered by a worker notwithstanding that the worker was, at the time when the injury was suffered, acting in contravention of any statutory or other regulation applicable to his employment, or that he was acting without instructions from his employer, if the act was done by the worker for the purposes of, or in connection with, his employer's trade or business.(4) Where a person ordinarily engages in work in relation to the port or harbour operations at a port or harbour and in connection with that work persons customarily attend at pre-arranged places for the purpose of being selected and engaged for employment in that work, then, in relation to any contract of service by which that person is engaged in that work –and, in the application of this Act to the travelling of a person to or from such a place and his attendance at such a place, a contract of service by which, on any occasion, he is engaged for employment at such a place shall be deemed to continue until the next occasion on which he is so engaged.(a) any such place shall be deemed to be a place of employment; and(b) attendance at any such place for the purpose of being so engaged or otherwise in connection with the employment, shall be deemed to be attendance at a place of employment in pursuance of that contract –(5) [Section 25 Subsection (5) substituted by No. 16 of 1995, s. 24 ]Without limiting subsection (1) , but subject to subsections (1A) and (2) , an injury arises out of and in the course of a worker's employment if the injury occurs during attendance at the worker's place of employment on a working day.(6) [Section 25 Subsection (6) substituted by No. 16 of 1995, s. 24 ]For the purposes of this section, an injury does not arise from a worker's employment if it occurs –(a) while the worker is travelling in either direction between the worker's place of residence and the worker's place of employment, except where that journey occurred –(i) at the request or direction of the employer; or(ii) if the journey is work related, with the authority (expressed or implied) of the employer; or(b) while the worker is travelling between places where the worker is employed by different employers; or(c) while the worker, on a working day, is temporarily absent from the worker's place of employment, except where that absence occurs at the request or direction, or, if it is work related, with the authority (expressed or implied), of the employer; or(d) during a social or sporting activity which takes place away from the worker's place of employment, except where the worker's involvement in that activity forms part of the worker's employment or is undertaken at the request or direction, or with the authority (expressed or implied), of the employer.(7) [Section 25 Subsection (7) omitted by No. 16 of 1995, s. 24 ]. . . . . . . .(8) [Section 25 Subsection (8) substituted by No. 44 of 1993, s. 22 ][Section 25 Subsection (8) amended by No. 68 of 1994, s. 3 and Sched. 1 ]No compensation is payable to a worker under this Part in respect of any disease for which he or she is entitled to compensation as an employee under the Workers' (Occupational Diseases) Relief Fund Act 1954 .
25A. Claims for certain diseases arising from mining operations
[Section 25A Inserted by No. 44 of 1993, s. 23 ](1) Subject to section 25 (2) , where –the disease is, in the absence of evidence to the contrary, to be taken to have arisen out of and in the course of his or her employment and that employment is taken to have contributed to a substantial degree to that disease.(a) a mining employee is suffering from silicosis, carbon-monoxide poisoning, pneumoconiosis, cadmium poisoning, fibrosis of the lungs, ankylostomiasis, lead poisoning and its results, nystagmus, arsenic poisoning or contact dermatitis caused by work; and(b) he or she has been engaged continuously in mining operations in Tasmania for a period of 2 years immediately before ceasing to be employed as a mining employee and is incapacitated from continuing to work as such –(2) For the purposes of subsection (1) , a mining employee is taken to have been engaged continuously in mining operations in this State for the period mentioned in that subsection, notwithstanding that he or she may, at any time after that period commenced, have been absent from his or her employment for any periods not exceeding 3 months in the aggregate.
26. Presumption as to cause of disease
(1) Subject to section 25 (2) , where a worker suffers a disease of a kind referred to in column 1 of Schedule 4 and has been employed in work of a type referred to in column 2 of that Schedule opposite that disease, it shall be presumed, in the absence of evidence to the contrary, that the disease arose out of and in the course of his employment and that his employment contributed to a substantial degree to that disease.(2) The regulations may extend the operation of subsection (1) to diseases and types of work prescribed in the regulations.(3) A regulation under subsection (2) shall not be made otherwise than on the recommendation of the Board.
27. Compensation to Tasmanian workers injured, &c., outside State
(1) Where an employer, who resides or has a place of employment or business in this State, employs in this State a worker and the worker suffers injury outside this State in such circumstances that, if the injury had been suffered in this State, he or his dependants would have been entitled to compensation under this Act, the worker and, in the case of his death, his dependants shall, subject to this Act, be deemed to be entitled to compensation under this Act.(2) Where a worker is required or directed by his employer to work for or under the direction of any other person outside this State, his employer shall, for the purposes of this Act, be deemed to continue to be the employer of that worker while he is working in pursuance of that requirement or direction.
28. Worker not entitled to double compensation
Notwithstanding anything in section 27 –(a) compensation is not payable pursuant to that section if, in respect of the injury, the worker (or in the case of the worker's death any of his dependants) has received compensation under the law of any country other than Australia or of any State other than this State or of the Commonwealth or any Territory of the Commonwealth (being a law relating to the workers' compensation) or the worker or any of his dependants has obtained judgment against the employer independently of this Act; and(b) if the worker or any of his dependants receives compensation pursuant to that section in respect of the injury and subsequently, in respect of the injury, receives compensation under such a law as is referred to in paragraph (a) or obtains judgment against the employer independently of this Act, the employer is entitled to recover from the worker or that dependant such amount of the compensation paid to the worker or dependant under such a law or judgment as does not exceed the amount paid or payable under this Act.
29. Liability of principal in case of workers employed by contractors
(1) Where a person (in this section referred to as "the principal") in the course of, or for the purposes of, his trade or business contracts with any other person (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, the principal is liable to pay to a worker employed in the execution of the work any compensation under this Act that he would have been liable to pay if that worker had been immediately employed by him.(2) Where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Act, a reference to the principal shall be substituted for a reference to the employer, and the amount of compensation shall be calculated with reference to the earnings of the worker under the employer by whom he is immediately employed.(3) In the construction of the provisions of this section, the expression the principal includes a contractor who enters into a sub-contract with any other person for the whole or any part of the work undertaken by him, and the expression the contractor includes a person who takes such a sub-contract.(4) Where the principal is liable to pay compensation under this section, he is entitled to be indemnified by any person who would have been liable to pay compensation to the worker independently of this section, and the right to that indemnity is available against every contractor standing between the principal and the worker.(5) Nothing in this section shall be construed as preventing a worker recovering compensation under this Act from the contractor instead of the principal.(6) This section does not apply in any case where the injury occurs elsewhere than on, in, or about the place on which the principal has undertaken to execute the work or that is otherwise under his control or management.
30. Rights of employer against licensed insurer to be transferred to worker in certain cases
(1) Where an employer has entered into a contract with a licensed insurer in respect of a liability to a worker in respect of which he is required under section 97 (1) to maintain a policy of insurance, then –the rights of the employer against the licensed insurer in respect of the liability shall be transferred to and vest in the worker, notwithstanding any law relating to bankruptcy or the winding-up of bodies corporate.(a) if the employer has applied to take, or takes, advantage of any law relating to bankruptcy, or has compounded, or entered into an arrangement, with his creditors; or(b) if, where the employer is a body corporate –(i) the body corporate has commenced to be wound up;(ii) a receiver or manager of the body corporate's business or undertaking has been duly appointed; or(iii) possession has been taken by or on behalf of any secured creditors of the body corporate of any property comprised in or subject to their security –(2) Upon the transfer of an employer's rights against a licensed insurer pursuant to subsection (1) , the licensed insurer has the same rights and remedies and is subject to the same liabilities as if he were the employer, but is not under any greater liability to the worker concerned than he would have been to the employer.(3) Where under this section the liability of a licensed insurer to a worker is less than the liability of the employer to the worker, the worker –but the priority conferred by subsection (4) does not apply to that balance.(a) may prove for the balance in the bankruptcy or liquidation; or(b) may recover the balance from the receiver or manager in the bankruptcy or liquidation –(4) The amount due in respect of any compensation or liability for compensation accrued before the date of –as the case may be, shall be included among the debts that, under section 331 or section 441 of the Companies (Tasmania) Code , as the case may be, are to be paid in priority to other debts, and that amount is subject to the provisions of such of those sections as are applicable to the particular case.(a) the bankruptcy;(b) the commencement of a winding-up; or(c) the appointment of a receiver or manager or the taking of possession as provided in subsection (1) (b) (iii) –(5) If any compensation to which the provisions of subsection (4) apply is payable by weekly payments, the amount of compensation for the purposes of that subsection shall be deemed to be the amount of the lump sum for which the payment, if redeemable, could be redeemed if the employer concerned made application for that purpose under this Act.(6) This section does not apply where a body corporate is wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another body corporate.(7) Nothing in the foregoing provisions of this section shall be construed as –(a) requiring a worker to pay to a licensed insurer any sum that was or becomes due and owing to the licensed insurer by the employer in respect of any premium payable by the employer in relation to a policy of insurance obtained by him from the licensed insurer; or(b) entitling a licensed insurer to retain from, or to set off against, any payments due to the worker under this Act any sum so due and owing.
31. Liability of employer not affected by agreement
[Section 31 Amended by No. 16 of 1995, s. 26 ]Except as provided in this Act, no contract or agreement made between an employer and a worker has the effect of relieving the employer from liability to pay compensation under this Act.
PART IV - Claims for compensation
32. Notice of injury and claim for compensation
(1) Subject to this Act, a person shall not be entitled to compensation under this Act for an injury to a worker unless –(a) notice of the injury has, as soon as practicable after the occurrence of the injury and before the worker has voluntarily left the employment in which he suffered the injury, been given to the employer of the worker or a person referred to in section 33 (1) (b) ; and(b) a claim for compensation with respect to the injury has been made within 6 months after the date of the occurrence of the injury, or where the injury results in the death of the worker, within 6 months after the date of the death.(2) Subsection (1) does not apply to industrial deafness, but proceedings for the recovery under this Act of compensation in respect of industrial deafness are not maintainable unless the claim for compensation is made while the worker is still in the employment of the employer or within 6 months after the termination of that employment.(2A) [Section 32 Subsection (2A) inserted by No. 44 of 1993, s. 24 ]For the purposes of this Part, where a mining employee –a claim for compensation is to be made no later than 6 months after the relevant period specified in this subsection or, where the disease results in the death of the mining employee, within 6 months after the date of the death.(a) suffers from silicosis, pneumoconiosis or fibrosis of the lungs within 12 months after ceasing to be a mining employee; or(b) suffers from silicosis within 5 years after ceasing to be a mining employee, and since ceasing to be engaged in mining operations he or she has not engaged in any occupation in which he or she would be exposed to contamination by industrial dust; or(c) suffers from lead poisoning or cadmium poisoning within 3 months after ceasing to be a mining employee; or(d) suffers from lead poisoning within 6 months after ceasing to be a mining employee, and since ceasing to be engaged in mining operations he or she has not exposed himself or herself to contamination by lead in any form; or(e) suffers from dermatitis caused by work within 2 months after ceasing to be a mining employee –(3) An employer who receives a claim for compensation shall be deemed to have been given notice of the injury to which it relates.
(1) [Section 33 Subsection (1) amended by No. 16 of 1995, s. 27 ]Notice of an injury –(a) may be given orally or in writing;(b) shall be given to –(i) the employer of the worker or, if there is more than one employer, to one of the employers of the worker; or(ii) a person under whose supervision the worker is employed; or(iii) a person designated for the purpose by the employer; or(iv) a person having authority or apparently having authority to receive such a notice on behalf of the employer;(c) shall include the name and address of the person injured; and(d) shall include the nature of the injury, the date on which the injury occurred, and the cause of the injury.(2) Where an employer has received notice of an injury, he shall record that fact in records kept by him for that purpose.
34. Form of claim for compensation
(1) [Section 34 Subsection (1) amended by No. 16 of 1995, s. 28 ]A claim for compensation shall –(a) be in a form approved by the Board;(b) be accompanied by a certificate in a form approved by the Board signed by an accredited medical practitioner or accredited person; and(c) be given to –(i) the employer of the worker or, if there is more than one employer, to one of the employers of the worker; or(ii) a person designated for the purpose by the employer.(2) If a claim for compensation and a medical certificate under subsection (1) (b) are not given at the same time, the claim for compensation shall be deemed not to have been made until the day on which the remaining document is given to the employer.(3) A defect, omission, or irregularity in a claim for compensation or a medical certificate under subsection (1) (b) shall not affect the validity of the claim and the claim shall be dealt with in accordance with this Part unless the defect, omission, or irregularity relates to information which is not within the knowledge of, or reasonably ascertainable by, the employer or his licensed insurer.
(1) A claim for compensation may be given –(a) to the employer of a worker or, if there is more than one employer, to one of the employers of a worker by –(i) delivering it personally to the employer or one of the employers; or(ii) by placing it in a properly addressed envelope and sending it by post to the employer, or one of the employers, at the employer's usual or last-known place of business or residence; and(b) to the person designated for the purpose by the employer, by delivering it personally to that person.
36. Employer to forward accident report and claim
(1) [Section 36 Subsection (1) amended by No. 16 of 1995, s. 29 ]An employer shall, immediately on receiving a claim for compensation, complete the employer's report section of the form referred to in section 34 (1) (a) and, within 5 working days after receiving the claim –and in all cases, retain a copy of the claim for his own records.(a) forward the claim and a copy of the claim to his licensed insurer; or(b) where the employer is a self-insurer, forward a copy of the claim to the Board –(2) [Section 36 Subsection (2) substituted by No. 16 of 1995, s. 29 ]A licensed insurer who receives a claim for compensation forwarded under subsection (1) must, within 5 working days after receiving it, forward a copy to the Board.(3) An employer who –is guilty of an offence and is liable on summary conviction to a fine not exceeding 50 penalty units.(a) refuses to receive a claim for compensation; or(b) dismisses a worker from employment for the reason only that the worker has given or attempted to give to the employer a claim for compensation –
37. Effect of failure to give notice of injury, &c.
[Section 37 Repealed by No. 16 of 1995, s. 30 ][Section 37 Inserted by No. 48 of 1996, s. 9 ](1) The failure to give notice of injury in accordance with section 32 (1) (a) or any defect or inaccuracy in such a notice does not affect the worker's right to claim compensation under this Act if –(a) the failure or defect or inaccuracy was occasioned by mistake, absence from the State of the worker or other reasonable cause; and(b) it is found in proceedings relating to the worker's right to claim compensation under this Act that the employer's defence is not prejudiced by reason of the failure.(2) Without limiting the generality of the expression reasonable cause in subsection (1) , that expression includes –(a) the making of a payment to a worker that the worker believes to be a payment of compensation under this Act; and(b) any representation that is made to a worker that the worker believes is made by or on behalf of the worker's employer to the effect that compensation under this Act will or will not be payable.(3) Any dispute relating to the failure of the worker to give notice of injury in accordance with section 32 (1) (a) may be referred, by either party to the dispute, to the Tribunal for determination.
38. Effect of failure to make claim
(1) [Section 38 Subsection (1) amended by No. 44 of 1993, s. 25 ]The failure to make a claim for compensation within the period prescribed by section 32 (1) (b) or (2A) does not affect the validity of the claim if the failure was occasioned by mistake, absence from the State of the worker, or other reasonable cause.(2) Without limiting the generality of the expression reasonable cause in subsection (1) , that expression includes –(a) the making of a payment to a worker that he believes to be a payment of compensation under this Act; and(b) any representation that is made to a worker that he believes is made by or on behalf of his employer to the effect that compensation under this Act will or will not be payable.(3) [Section 38 Subsection (3) amended by No. 50 of 1992, s. 10 ][Section 38 Subsection (3) amended by No. 44 of 1993, s. 25 ][Section 38 Subsection (3) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Any dispute relating to the failure of the worker to make a claim for compensation within the period prescribed by section 32 (1) (b) or (2A) may be referred by either party to the dispute to the Tribunal for determination.
39. Settlement of claims for compensation by agreement
[Section 39 Amended by No. 5 of 1990, s. 3 and sched. 1 ][Section 39 Amended by No. 50 of 1992, s. 10 ][Section 39 Substituted by No. 16 of 1995, s. 31 ](1) Subject to section 89 , a claim for compensation may be settled by agreement between the parties.(2) A worker, the employer of the worker or the licensed insurer of the employer may, within 3 months of the date of the agreement, refer the agreement to the Tribunal for review.
40. Reference of disputed claims for compensation to Chief Executive
(1) [Section 40 Subsection (1) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 40 Subsection (1) amended by No. 16 of 1995, s. 32 ]In the event of a dispute arising between a worker and his employer or between a worker and a licensed insurer in relation to a claim for compensation, the worker, the employer of the worker, or the licensed insurer of the employer may, in the first instance, refer the dispute to the Chief Executive.(2) [Section 40 Subsection (2) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 40 Subsection (2) amended by No. 16 of 1995, s. 32 ]The Chief Executive shall, at the request of a person who has referred a dispute to him under subsection (1) , enter into negotiations with the parties to the dispute, or take such other action as he considers necessary, to endeavour to resolve the dispute.(3) [Section 40 Subsection (3) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 40 Subsection (3) amended by No. 50 of 1992, s. 10 ][Section 40 Subsection (3) amended by No. 16 of 1995, s. 32 ]In the event of the Chief Executive failing to settle a dispute referred to him under subsection (1) , he may refer the claim for compensation to which the dispute relates to the Tribunal.(4) [Section 40 Subsection (4) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 40 Subsection (4) amended by No. 16 of 1995, s. 32 ]Where the Chief Executive refers a claim for compensation to which a dispute relates to the Tribunal, he shall furnish the Tribunal with a report in relation to the dispute.(5) [Section 40 Subsection (5) amended by No. 16 of 1995, s. 32 ]Nothing in this section precludes a worker, an employer, or a licensed insurer from referring a claim for compensation to which a dispute relates to the Tribunal.(6) [Section 40 Subsection (6) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 40 Subsection (6) amended by No. 16 of 1995, s. 32 ]Any act or thing done, or omitted to be done, in good faith by the Chief Executive in the exercise or purported exercise of the powers conferred on him by this section shall not subject him personally to any action, liability, claim, or demand.
PART V - Reference of claims for compensation to Tribunal[Part V Heading amended by No. 16 of 1995, s. 91 and Sched. 1 ][Section 41 Repealed by No. 50 of 1992, s. 6 ]. . . . . . . .
42. Reference of claims for compensation to Tribunal
(1) [Section 42 Subsection (1) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 42 Subsection (1) amended by No. 50 of 1992, s. 7 ][Section 42 Subsection (1) amended by No. 16 of 1995, s. 33 ]A claim for compensation may be referred to the Tribunal by –(a) an injured worker or a dependant of an injured worker;(b) the employer of an injured worker;(c) the licensed insurer of an employer; or(d) the Chief Executive where the claim has been referred to him under section 40 .(2) [Section 42 Subsection (2) substituted by No. 16 of 1995, s. 33 ]A claim for compensation is to be referred to the Tribunal by application, in a form approved by the Chief Commissioner, filed with the Registrar.(3) [Section 42 Subsection (3) amended by No. 16 of 1995, s. 33 ]Where an application is filed with the Registrar, the Registrar shall, as soon as practicable, forward the application to the Tribunal.(4) [Section 42 Subsection (4) amended by No. 16 of 1995, s. 33 ]On receipt of an application from the Registrar, the Tribunal shall determine the persons who appear to it from the application to have an interest in the settlement of the claim for compensation to which the application relates and shall advise the Registrar of the names of those persons.(5) [Section 42 Subsection (5) amended by No. 16 of 1995, s. 33 ]The Registrar shall, as soon as practicable after being advised of the names of the persons who appear to the Tribunal to have an interest in the settlement of the claim for compensation to which the application relates, serve those persons with a notice containing particulars of the claim.
(1) [Section 43 Subsection (1) substituted by No. 16 of 1995, s. 34 ]Where a claim for compensation has been referred to the Tribunal, the Tribunal may direct the applicant and any person determined by it under section 42 (4) to have an interest in the settlement of the claim for compensation to provide it with such information with respect to the claim as it considers necessary.(2) A person who refuses or fails to comply with a direction given to him under subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units.(3) [Section 43 Subsection (3) omitted by No. 16 of 1995, s. 34 ]. . . . . . . .
[Section 43A Inserted by No. 16 of 1995, s. 35 ](1) The Tribunal may, in relation to any claim for compensation referred to it, by notice in writing served on the applicant and any person determined by the Tribunal under section 42 (4) to have an interest in the settlement of the claim for compensation, require them to attend a conciliation conference for the purpose of resolving the claim for compensation by agreement.(2) The notice is to set out when and where the conciliation conference is to be held, and who will be the conciliator.(3) The conciliator may be the Tribunal, the Registrar, a deputy registrar of the Tribunal or a person authorized by the Tribunal.(4) The conciliation conference is to be held at the relevant workplace unless the Tribunal is of the opinion that it is not possible to do so or would not, in the circumstances, be appropriate.(5) A worker may be represented at a conciliation conference.(6) A person, other than a worker, required to attend the conciliation conference may be represented at that conference by –(a) in the case of a body corporate, an officer of the body corporate; and(b) in any case, an officer of an association to which that person belongs.(7) A person required under subsection (1) to attend a conciliation conference may not be represented at that conference by a legal practitioner within the meaning of the Legal Profession Act 1993 unless the conciliator determines that –(a) the person's interests would be materially disadvantaged by not being so represented; or(b) the conference would be materially assisted in resolving the claim for compensation by the presence of that legal practitioner.(8) A person who is aggrieved by the determination of a conciliator in relation to representation at a conciliation conference may refer the matter to the Tribunal for determination.(9) The determination of the Tribunal is final and not subject to appeal.(10) Subject to this section and the regulations, the conciliator is to determine the conduct of proceedings at a conciliation conference.(11) A person served with a notice under subsection (1) must not fail or refuse, without reasonable excuse, to comply with the notice.Penalty: Fine not exceeding 20 penalty units.
44. Amendment of applications, &c.
[Section 44 Substituted by No. 16 of 1995, s. 36 ]The Tribunal may amend any application, referral, claim for compensation or appeal at the request of the person who lodged the application, referral, claim for compensation or appeal.
(1) [Section 45 Subsection (1) amended by No. 16 of 1995, s. 91 and Sched. 1 ][Section 45 Subsection (1) substituted by No. 48 of 1996, s. 10 ]The Registrar is to arrange a time and a place for the hearing and determination of a claim for compensation by the Tribunal and is to serve a notice of that time and place on every person who is served with a notice under section 42 (5) .(2) A person who is served with a notice under subsection (1) shall be regarded as a party to the proceeding relating to the claim for compensation to which the notice relates.(3) [Section 45 Subsection (3) amended by No. 16 of 1995, s. 91 and Sched. 1 ]The Tribunal may, in its discretion, join a person as a party to the proceeding if the Tribunal is satisfied that that person has a sufficient interest in the settlement of the matter to which the claim for compensation relates.
46. Adjournment of proceedings
(1) [Section 46 Subsection (1) amended by No. 16 of 1995, s. 91 and Sched. 1 ]The Tribunal may from time to time adjourn a proceeding to such times and places and for such purposes as it considers necessary.(2) [Section 46 Subsection (2) amended by No. 16 of 1995, s. 91 and Sched. 1 ]The Registrar shall cause a notice of the time and place to which the relevant proceeding is adjourned pursuant to subsection (1) to be served on a party to the proceeding who is not present or represented at the time when the proceeding is adjourned.
(1) [Section 47 Subsection (1) amended by No. 16 of 1995, s. 91 and Sched. 1 ]A party to a proceeding before the Tribunal may, with the approval of the Tribunal, be represented by a person of that party's choice.(2) [Section 47 Subsection (2) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Where it appears to the Tribunal that it should allow a person to present to it the case of a party to a proceeding, the Tribunal shall, where that person is proposed for its approval, satisfy itself that the proposed person has sufficient personal knowledge of the matter to be resolved in the proceeding and is vested with sufficient authority to bind the party.
48. Proceedings to be in private except in certain cases
(1) [Section 48 Subsection (1) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Subject to subsection (2) , a proceeding before the Tribunal shall be heard in private.(2) [Section 48 Subsection (2) amended by No. 16 of 1995, s. 91 and Sched. 1 ]A proceeding before the Tribunal may be open to the public if all the parties to the proceeding so agree.
(1) [Section 49 Subsection (1) amended by No. 16 of 1995, s. 37 ]The following provisions apply to a proceeding before the Tribunal:(a) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit;(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters to be resolved permit.(2) [Section 49 Subsection (2) substituted by No. 16 of 1995, s. 37 ]In proceedings before the Tribunal –(a) the onus of proving an initial entitlement to a payment of compensation to a worker or the dependants of a worker lies on the worker or those dependants; and(b) the onus of proving that a worker is no longer entitled to the payment of compensation lies on the employer.(3) [Section 49 Subsection (3) substituted by No. 43 of 1993, s. 7 ][Section 49 Subsection (3) amended by No. 16 of 1995, s. 37 ]Where a medical question arises in any proceedings before the Tribunal, the Tribunal may –(a) determine the medical question on any medical evidence presented to the Tribunal; or(b) refer the medical question to a medical panel comprising at least 2 medical practitioners nominated by the Tribunal who are, in the Tribunal's opinion, appropriately qualified and who are acceptable to the parties to the proceeding for the purpose of obtaining medical advice or a medical opinion in relation to the medical question; or(c) refer the medical question to a medical practitioner who is, in the Tribunal's opinion, appropriately qualified and who is acceptable to the parties to the proceeding for the purpose of obtaining medical advice or a medical opinion in relation to the medical question.(3A) [Section 49 Subsection (3A) inserted by No. 43 of 1993, s. 7 ][Section 49 Subsection (3A) amended by No. 16 of 1995, s. 37 ]If the parties to the proceeding cannot agree on the medical practitioners nominated by the Tribunal to comprise a medical panel, the Tribunal must nominate at least 2 other medical practitioners to comprise the panel who the Tribunal considers are appropriately qualified to provide the medical advice or opinion.(3B) [Section 49 Subsection (3B) inserted by No. 43 of 1993, s. 7 ][Section 49 Subsection (3B) amended by No. 16 of 1995, s. 37 ]If the parties to the proceeding cannot agree on the medical practitioner nominated by the Tribunal, the Tribunal must choose another medical practitioner who the Tribunal considers is appropriately qualified to provide the medical advice or opinion.(4) [Section 49 Subsection (4) amended by No. 43 of 1993, s. 7 ]The Commissioner shall have regard to any medical advice or medical opinion received from a medical panel to which, or a medical practitioner to whom, a medical question has been referred pursuant to subsection (3) but is not bound by that advice or opinion.
50. Medical panels and medical practitioners
[Section 50 Substituted by No. 43 of 1993, s. 8 ](1) [Section 50 Subsection (1) amended by No. 16 of 1995, s. 91 and Sched. 1 ]The Tribunal must appoint one of the medical practitioners nominated to comprise a medical panel under section 49 to be chairperson of the panel.(2) [Section 50 Subsection (2) amended by No. 16 of 1995, s. 91 and Sched. 1 ]The Tribunal must not nominate a medical practitioner to be a member of a medical panel for the purpose of obtaining medical advice or a medical opinion in relation to a medical question in respect of a worker if the medical practitioner –(a) has, in any capacity other than as a member of a medical panel, been involved in the examination or treatment of, or has provided medical services to, the worker in relation to the injury in respect of which the medical advice or opinion is sought by the Tribunal; or(b) informs the Tribunal that, for any reason, the medical practitioner's appointment to the medical panel could give rise to a conflict of interests.(3) [Section 50 Subsection (3) amended by No. 16 of 1995, s. 91 and Sched. 1 ]The Tribunal must not refer any medical question relating to a worker to a medical practitioner for the purpose of obtaining medical advice or a medical opinion in relation to that medical question if the medical practitioner –(a) has, in any capacity other than as a member of a medical panel, been involved in the examination or treatment of, or has provided medical services to, the worker in relation to the injury in respect of which the medical advice or opinion is sought by the Tribunal; or(b) informs the Tribunal that, for any reason, the referral of the medical question to the medical practitioner would give rise to a conflict of interests.
51. Worker not entitled to be represented before medical panel, &c., except in certain cases
(1) [Section 51 Subsection (1) amended by No. 43 of 1993, s. 9 ]A worker in respect of whom a claim for compensation relates is not entitled to be represented by any person at any attendance before a medical panel to which, or a medical practitioner to whom, a medical question has been referred pursuant to section 49 (3) unless it appears to the medical panel or medical practitioner that the worker should be allowed to be so represented.(2) [Section 51 Subsection (2) amended by No. 43 of 1993, s. 9 ]A worker is entitled to be accompanied by a person of his choice at any attendance before a medical panel to which, or a medical practitioner to whom, a medical question has been referred pursuant to section 49 (3) .
52. Power of medical panel, &c., to examine worker
[Section 52 Amended by No. 43 of 1993, s. 10 ][Section 52 Amended by No. 16 of 1995, s. 91 and Sched. 1 ]A medical panel, or any member of a medical panel, to which, or a medical practitioner to whom, a medical question has been referred pursuant to section 49 (3) may make such medical examination or examinations of a worker, in respect of whom a claim for compensation relates, as the medical panel, member, or medical practitioner considers necessary to enable it or him to provide medical advice or a medical opinion to the Tribunal on any medical question referred to it or him.
53. Failure to attend before a medical panel, &c.
[Section 53 Amended by No. 43 of 1993, s. 10 ][Section 53 Amended by No. 16 of 1995, s. 91 and Sched. 1 ]If a worker in respect of whom a claim for compensation has been made –(a) fails, without reasonable cause, to attend before a medical panel to which, or a medical practitioner to whom, a medical question has been referred pursuant to section 49 (3) at the time and place of which he has received not less than 7 days prior notice in writing from the Registrar, his right to compensation under this Act is suspended until he appears before the medical panel or medical practitioner; or(b) appears before a medical panel to which, or a medical practitioner to whom, a medical question has been referred pursuant to section 49 (3) but refuses to be medically examined by the medical panel or a member of the medical panel, or the medical practitioner, or in any way obstructs such an examination, his right to compensation under this Act is suspended until he undergoes that examination.
54. Tribunal to be informed of findings in relation to medical question
[Section 54 Amended by No. 43 of 1993, s. 12 ][Section 54 Amended by No. 16 of 1995, s. 91 and Sched. 1 ]A medical panel to which, or a medical practitioner to whom, a medical question has been referred pursuant to section 49 (3) shall provide the Tribunal, in writing, with its or his medical advice or medical opinion in relation to that medical question.
55. Liability of members of medical panel, &c.
[Section 55 Amended by No. 43 of 1993, s. 13 ]No liability attaches to a member of a medical panel to which, or to a medical practitioner to whom, a medical question has been referred pursuant to section 49 (3) for an act or omission by the member or medical practitioner, or by the medical panel, in good faith and in the exercise or purported exercise of a power, or in the performance or discharge, or purported performance or discharge, of a function or duty, of the member, medical practitioner, or medical panel.
56. Provisions relating to evidence and production of documents
(1) [Section 56 Subsection (1) amended by No. 16 of 1995, s. 91 and Sched. 1 ]In a proceeding before the Tribunal –(a) evidence may be taken on oath or affirmation;(b) subject to any lawful claim or right of privilege, the Tribunal may, by notice in writing served on a person, require that person to appear before it to give evidence and to produce such documents, books, and things (if any) as are specified in the notice; and(c) evidence may be given orally or in writing.(2) [Section 56 Subsection (2) substituted by No. 43 of 1993, s. 14 ][Section 56 Subsection (2) amended by No. 16 of 1995, s. 91 and Sched. 1 ]The Tribunal must cause a tape recording of a proceeding before the Tribunal to be made.(3) [Section 56 Subsection (3) inserted by No. 43 of 1993, s. 14 ][Section 56 Subsection (3) amended by No. 16 of 1995, s. 91 and Sched. 1 ]On the completion of a proceeding before the Tribunal, the Tribunal must cause the tape recording of the proceeding and any notes of the proceeding made by the Tribunal to be filed in the office of the Registrar in Hobart.(4) [Section 56 Subsection (4) inserted by No. 43 of 1993, s. 14 ]Any tape recording and notes of a proceeding filed in accordance with subsection (3) are to be kept for a period of 6 years from the date on which the tape recording and notes were filed.
57. Tribunal to act on evidence available
(1) [Section 57 Subsection (1) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Subject to this section, the matter to be resolved in a proceeding before the Tribunal shall be resolved by the Tribunal on such evidence as is placed before it after all parties have been given a reasonable opportunity to be heard, and an order made by the Tribunal in relation to the proceeding is lawful and effectual whether or not all parties to the proceeding have presented their cases.(2) [Section 57 Subsection (2) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Where –the Tribunal may order that the claim for compensation be reheard if it appears to it that it is just and reasonable to do so.(a) the matter to be resolved has been determined in the absence of a party to the relevant proceeding; and(b) that party has, within 7 days after he receives notice of the order made by the Tribunal, applied for a rehearing to the Tribunal –(3) [Section 57 Subsection (3) amended by No. 16 of 1995, s. 91 and Sched. 1 ]An order under subsection (2) shall –(a) be subject to such terms and conditions as may be specified by the Tribunal, including terms and conditions as to the payment of costs; or(b) be unconditional if the Tribunal is satisfied that no substantial injustice will be caused to a party to the relevant proceeding.(4) [Section 57 Subsection (4) amended by No. 16 of 1995, s. 91 and Sched. 1 ]On an order being made under subsection (2) for the rehearing of a claim for compensation –(a) the Registrar shall give notice to all parties to the relevant proceeding of the making of the order and of the time and place appointed for the rehearing; and(b) the order of the Tribunal made on the first hearing ceases to have effect unless it is restored pursuant to subsection (5) .(5) [Section 57 Subsection (5) amended by No. 16 of 1995, s. 91 and Sched. 1 ]If the party on whose application the rehearing of a claim for compensation is ordered does not appear at the time and place appointed for the rehearing or any adjournment of the relevant proceeding, the Tribunal, if it thinks fit and without rehearing or further rehearing the claim, may direct that the order made on the first hearing of the claim be restored, and that order shall be restored to full force and effect and shall be deemed to have been of effect at all times since the time of its making.
58. Right of Tribunal to state case
(1) [Section 58 Subsection (1) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Where, in the opinion of the Tribunal, a matter in a proceeding before it involves a question of law of such public and general importance as to make it desirable in the public interest that it should be determined by the Supreme Court, the Tribunal, instead of determining the matter, may state a case for the opinion of the Supreme Court, and may adjourn the hearing of the matter pending the receipt of the opinion of the Supreme Court on it.(2) [Section 58 Subsection (2) amended by No. 16 of 1995, s. 91 and Sched. 1 ]In a case referred to in subsection (1) , the Tribunal shall –(a) immediately prepare and state a case setting forth the material facts as found by it, and stating the question of law on which it desires the opinion of the Supreme Court; and(b) transmit the case without delay to the Registrar of the Supreme Court.(3) On receipt of a case stated under this section, the Registrar of the Supreme Court shall set it down for hearing and give the parties at least 7 days' notice of the hearing.(4) [Section 58 Subsection (4) amended by No. 16 of 1995, s. 91 and Sched. 1 ]On the hearing of a case stated, the Supreme Court –(a) shall be constituted by a single judge;(b) may remit the case to the Tribunal for amendment if, in its opinion, the case is defective;(c) may reserve the case or any point arising on the case for the Full Court; and(d) shall cause the case to be remitted to the Tribunal with the opinion of the Court on the question submitted in that case.(5) The Full Court has power to hear and determine a case or point that is reserved for the Full Court pursuant to subsection (4) (c) .
[Section 59 Substituted by No. 16 of 1995, s. 38 ](1) Except as provided in subsection (2) , the Tribunal may make such order as to costs as it considers appropriate in any proceedings before it.(2) The Tribunal may not order costs in respect of a conciliation conference conducted under section 43A unless it appears to the Tribunal that a party to the conciliation conference has unreasonably obstructed or prolonged proceedings.
60. Contempt and other offences
(1) [Section 60 Subsection (1) amended by No. 16 of 1995, s. 39 ]A person who –is guilty of an offence.(a) wilfully misbehaves himself at a proceeding before the Tribunal;(b) wilfully interrupts or obstructs such a proceeding;(c) assaults or wilfully obstructs a person in attendance at such a proceeding; or(d) without lawful excuse, disobeys a lawful direction of the Tribunal given to that person during such a proceeding –Penalty: Fine not exceeding 10 penalty units.(2) [Section 60 Subsection (2) omitted by No. 16 of 1995, s. 39 ]. . . . . . . .(3) [Section 60 Subsection (3) omitted by No. 16 of 1995, s. 39 ]. . . . . . . .(4) [Section 60 Subsection (4) omitted by No. 16 of 1995, s. 39 ]. . . . . . . .(5) [Section 60 Subsection (5) amended by No. 16 of 1995, s. 39 ]A person who –is guilty of an offence.(a) having been duly served with a notice to attend a proceeding before the Tribunal, neglects or fails to attend, without reasonable excuse, in answer to the notice; or(b) having been called or examined as a witness at such a proceeding, subject to any lawful claim or right of privilege, refuses to be sworn or to affirm, refuses to answer any question, or refuses to produce a document, book, or thing specified in a notice served on him –(6) A person who is guilty of an offence under subsection (5) is liable on summary conviction to a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 6 months, or both.
60A. Power of Tribunal to make interim determinations, &c.
[Section 60A Inserted by No. 16 of 1995, s. 40 ](1) The Tribunal may make an interim determination, ruling or direction in respect of a claim for compensation referred to it.(2) Where the Tribunal makes an interim determination, ruling or direction it must make an order which gives effect to that interim determination, ruling or direction.(3) An order made under subsection (2) is to specify the period for which the interim determination, ruling or direction applies.
(1) [Section 61 Subsection (1) amended by No. 16 of 1995, s. 41 ]Where the Tribunal makes a determination in respect of a claim for compensation referred to it, the Tribunal shall make an order that gives effect to that determination.(2) [Section 61 Subsection (2) amended by No. 16 of 1995, s. 41 ]The Tribunal may –make a consent order with respect to that proceeding.(a) on the written application of all the parties to a proceeding before it; and(b) after considering the matters to be resolved in the proceeding and being satisfied that the parties properly understand those matters –(3) [Section 61 Subsection (3) substituted by No. 16 of 1995, s. 41 ]If the Tribunal makes an order in respect of a claim for compensation referred to it, other than a consent order under subsection (2) or an order under section 81A (2C) , (3) (c) or (3) (d) , it is to provide a statement in writing of its reasons for making the determination to which the order relates.(4) An order made under subsection (1) shall direct that what is required to be done by the order shall be done within the time specified in the order.(5) [Section 61 Subsection (5) substituted by No. 16 of 1995, s. 41 ]Where an order is made under section 60A or this section, the Registrar must, as soon as practicable after the order is made, arrange for a copy of the order together with, where applicable, a copy of any statement provided by the Tribunal under subsection (3) to be served on all parties to the proceeding to which the order relates.(6) [Section 61 Subsection (6) substituted by No. 16 of 1995, s. 41 ]Where an order is made under section 60A or this section in relation to the payment of a sum of money, the order is –(a) deemed to be a judgment of the court of requests; and(b) enforceable in that court as provided by the Local Courts Act 1896 .
61A. Power of Tribunal to publish and distribute copies of determinations
[Section 61A Inserted by No. 43 of 1993, s. 15 ][Section 61A Amended by No. 16 of 1995, s. 91 and Sched. 1 ]Where the Tribunal makes a determination in respect of a claim for compensation, the Tribunal may publish copies of the determination in such form as the Tribunal thinks fit with the name of the worker who is a party to the determination omitted and may distribute the copies to any person.
(1) [Section 62 Subsection (1) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Subject to section 63 , an order made by the Tribunal is final and binding on all parties to the proceeding to which the order relates.(2) [Section 62 Subsection (2) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Subject to subsection (3) , nothing in subsection (1) prevents the Tribunal from reconsidering any claim for compensation that has been determined by it, or from varying or revoking an order previously made by it.(3) [Section 62 Subsection (3) amended by No. 16 of 1995, s. 91 and Sched. 1 ]The Tribunal shall not vary or revoke an order previously made by it if that variation or revocation will affect any amount paid, or any action taken, in accordance with that order.(4) [Section 62 Subsection (4) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Subject to section 63 , no order or proceeding of the Tribunal with respect to an order –(a) is vitiated by reason of any informality or want of form; or(b) is liable to be challenged, appealed against, reviewed, quashed, or called into question by any court.
(1) [Section 63 Subsection (1) amended by No. 16 of 1995, s. 42 ]If any party to a proceeding before the Tribunal is aggrieved by any determination, order, ruling, or direction of the Tribunal in point of law, that party may appeal to the Supreme Court.(2) An appeal under this section shall be instituted, heard, and determined in accordance with the provisions of the Supreme Court Civil Procedure Act 1932 and the Rules of Court made under that Act.
64. Regulations for purposes of Part V
(1) The Governor may make regulations for the purposes of this Part.(2) [Section 64 Subsection (2) amended by No. 43 of 1993, s. 16 ][Section 64 Subsection (2) substituted by No. 16 of 1995, s. 43 ]Without limiting subsection (1) , regulations may be made for or with respect to –(a) the practices and procedures to be adopted by the Tribunal and conciliators referred to in section 43A ; and(b) the powers that may be exercised, and the functions that are required to be performed, by the Registrar under this Part.(2A) [Section 64 Subsection (2A) inserted by No. 43 of 1993, s. 16 ][Section 64 Subsection (2A) omitted by No. 16 of 1995, s. 43 ]. . . . . . . .(3) [Section 64 Subsection (3) amended by No. 16 of 1995, s. 43 ]Regulations under this section may be made subject to such conditions, or be made so as to apply differently according to such factors, as may be specified in the regulations or according to such limitations or restrictions, whether as to time or circumstance or otherwise, as may be so specified.(4) [Section 64 Subsection (4) inserted by No. 16 of 1995, s. 43 ]Regulations under this section may provide that it is an offence, punishable on summary conviction, for a person to contravene or fail to comply with any of the regulations and may provide in respect of any such offence for the imposition of a fine not exceeding 10 penalty units and, in the case of a continuing offence, a further fine not exceeding one penalty unit for each day during which the offence continues.
PART VI - Amount of compensation
Division 1 - Basic compensation payable
65. Interpretation of Division 1 of Part VI
[Section 65 Substituted by No. 26 of 1991, s. 4 ]In this Division –basic salary means –(a) during the year beginning 1 January 1991 $311·30; and(b) during any subsequent year beginning 1 January the basic salary for the previous year as varied by the relevant percentage;relevant percentage, in respect of any year beginning 1 January, means the percentage difference in the average weekly ordinary full-time earnings of adults in Tasmania between the May immediately preceding the start of that year and the immediately preceding May, as evidenced by statistics published by the Australian Statistician under the authority of the Census and Statistics Act 1905 of the Commonwealth;unit means the amount represented by the basic salary.
66. Declaration of basic salary
[Section 66 Substituted by No. 26 of 1991, s. 4 ](1) Before the start of each year beginning 1 January the Minister shall publish in the Gazette a notice stating the basic salary for that year.(2) A failure by the Minister to publish a notice under subsection (1) before the start of a year beginning 1 January does not affect the basic salary for that year.
67. Amount of compensation in case of death
(1) Where a worker dies as a result of an injury suffered by him and in respect of which his employer is liable to pay compensation under this Act, the compensation payable under this Act is a lump sum equal to the appropriate amount prescribed by this section.(2) Subject to subsection (6) , where a deceased worker leaves any dependants wholly dependent upon him, the lump sump referred to in subsection (1) shall be an amount equal to –(a) 284 units; and(b) in respect of every dependent child of the worker who is under the age of 18 years or, in the case of a dependent full-time student, under the age of 21 years, at the date when the worker suffered the injury, the appropriate number of units specified in column 2 of the table set out in this subsection for each child under the age and having the status specified in column 1 of that table.TABLE
COLUMN 1
Years of age
COLUMN 2
Number of units
1
22
2
21
3
20
4
19
5
18
6
17
7
16
8
15
9
14
10
13
11
12
12
11
13
10
14
9
15
8
16
7
17
6
18
5
19 (full-time student)
4
20 (full-time student)
3
21 (full-time student)
2
(3) Subject to subsection (6) , where a deceased worker does not leave any dependants wholly dependent upon him but leaves any dependant in part dependent upon him, the lump sum referred to in subsection (1) shall be such amount, not exceeding in any case an amount equal to 284 units, as is reasonable and proportionate to the degree of dependency of the dependant.(4) Where a deceased worker who was under the age of 18 years at the date when he suffered injury leaves no dependants, but was, immediately before that date, contributing towards the maintenance of the home of the members of his family, those members shall be deemed to be dependants of the worker in part dependent upon him, and the provisions of subsection (3) apply to and in relation to those members accordingly.(5) Amounts paid or payable before the death of a worker as weekly payments in respect of his total or partial incapacity for work resulting from the injury suffered by him shall not be taken into consideration in calculating the amount of compensation payable under this section upon his death.(6) [Section 67 Subsection (6) omitted by No. 16 of 1995, s. 44 ]. . . . . . . .
68. Dependency questions and apportionment
(1) [Section 68 Subsection (1) amended by No. 50 of 1992, s. 10 ][Section 68 Subsection (1) amended by No. 16 of 1995, s. 45 ]In default of agreement as to who are the dependants of a deceased worker or the amount to be paid to each dependant –may refer the matter to the Tribunal for determination as to who are the dependants of the deceased worker or the amount to be paid to each dependant.(a) a dependant, or a person on behalf of a dependant, or a person claiming to be a dependant, of the deceased worker;(b) the employer of the deceased worker; or(c) the licensed insurer of the employer –(2) [Section 68 Subsection (2) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Where, upon hearing the matter referred to it under subsection (1) , the Tribunal is satisfied that a deceased worker has left either total or partial dependants or both total and partial dependants, the Tribunal may determine that the compensation payable under this Act in respect of the deceased worker shall be apportioned, in accordance with the provisions of the determination –(a) partly between the total dependants;(b) partly between the partial dependants; or(c) partly between both the total and partial dependants.
68A. Persons treated as de facto spouses
[Section 68A Inserted by No. 49 of 1994, s. 5 ](1) [Section 68A Subsection (1) amended by No. 16 of 1995, s. 91 and Sched. 1 ]A person who cohabited with a worker of the opposite sex as the spouse of that worker, although not legally married to that worker, for a period of less than 3 years immediately before that worker died or suffered an injury, may apply to the Tribunal to be treated as the de facto spouse of that worker.(2) [Section 68A Subsection (2) amended by No. 16 of 1995, s. 91 and Sched. 1 ]The Tribunal may declare that an applicant is to be treated as the de facto spouse of a person if satisfied that, taking into account the circumstances of the case, it is proper to do so.
69. Amount of compensation in case of incapacity
(1) [Section 69 Subsection (1) amended by No. 43 of 1993, s. 17 ][Section 69 Subsection (1) amended by No. 16 of 1995, s. 46 ]Subject to this section, where total or partial incapacity for work results from an injury suffered by a worker and where the existence of such total or partial incapacity is supported by a certificate in a form approved by the Board signed by an accredited medical practitioner or accredited person, the compensation payable to him under this Act is, in addition to any lump sum that may be payable under section 71 or 72 in respect of that injury –(a) in the case of the total incapacity of the worker for work, weekly rate payments equal to –whichever is the greater; or(i) the normal weekly earnings of the worker; or(ii) the ordinary time rate of pay of the worker for the work in which, and for the hours during which, the worker was engaged immediately before the period of incapacity –(b) in the case of the partial incapacity of the worker for work, weekly rate payments for the period of that incapacity equal to the difference between the worker's normal weekly earnings and the amount that the worker is earning or would be able to earn in suitable employment or business during that period of incapacity.(2) [Section 69 Subsection (2) amended by No. 16 of 1995, s. 46 ]In this section, normal weekly earnings in relation to a worker who is incapacitated for work, means the average weekly earnings of the worker over the period of 12 months ending at the commencement of the period of incapacity.(3) [Section 69 Subsection (3) substituted by No. 16 of 1995, s. 46 ][Section 69 Subsection (3) substituted by No. 48 of 1996, s. 11 ]If, during the period of incapacity of a worker, the ordinary time rate of pay for the work in which, and for the hours during which, the worker was engaged immediately before the commencement of that period increases or decreases, the weekly rate payment to which the worker is entitled is to be increased or decreased by the like amount.(4) [Section 69 Subsection (4) amended by No. 43 of 1993, s. 17 ][Section 69 Subsection (4) amended by No. 16 of 1995, s. 46 ]The foregoing provisions of this section have effect subject to the following provisions of this subsection:(a) in fixing the amount of the weekly rate payment to a worker under this section, regard shall be had to any payment, allowance, or benefit that the worker may receive from his employer during the period of his incapacity, not being a payment, allowance, or benefit paid in respect of a period of long service leave or of any entitlement to long service leave or in lieu of the taking of a period of long service leave;(b) when the question of the amount that a worker is earning or would be able to earn arises, if it appears to the Tribunal that, because of the injury that the worker has suffered (including the physical disfigurement of the worker) he is, or will be, unable to obtain employment or to remain in reasonably regular employment, the Tribunal may decide that the worker is incapacitated by the injury, either totally or partially and either permanently or temporarily, as the circumstances of the case require, and, on the Tribunal so deciding, compensation is payable to the worker in accordance with this Division;(c) where a worker –the Tribunal may, notwithstanding any other provision of this Act or any earlier determination of the Tribunal under this Act, or any order, award, determination, or decision made by a judge under the repealed Act , in respect of that worker, determine that his incapacity shall continue to be treated as total incapacity for such period and subject to such conditions as the Tribunal thinks fit and, on the making of the determination, compensation is payable to the worker in accordance with this Division.(i) has so far recovered from an injury suffered by him as to be fit for employment (but only for employment of a more limited kind than the employment in which he was engaged before the date when he suffered the injury); and(ii) satisfies the Tribunal that he has taken all reasonable steps to obtain, and has failed to obtain, employment of a kind referred to in subparagraph (i) , and that his failure to obtain that employment is a consequence wholly or mainly of the injury (including the physical disfigurement) of the worker –(d) . . . . . . . .(5) In determining the amount of compensation payable under any of the foregoing provisions of this section, no regard shall be had to any sum paid or payable under any contract of assurance or insurance (including a contract made with a friendly society or other benefit society or association or a trade union) or out of any relief, superannuation, or sustentation fund, or other fund (whether statutory or otherwise) of the like nature.(6) [Section 69 Subsection (6) amended by No. 16 of 1995, s. 46 ]The total liability of an employer in respect of compensation under this section shall not, in any one case, exceed an amount equal to 369 units calculated in accordance with the basic salary applying at the date of occurrence of the injury.(7) [Section 69 Subsection (7) omitted by No. 16 of 1995, s. 46 ]. . . . . . . .(8) [Section 69 Subsection (8) amended by No. 50 of 1992, s. 10 ][Section 69 Subsection (8) amended by No. 43 of 1993, s. 17 ][Section 69 Subsection (8) amended by No. 16 of 1995, s. 46 ]Where it appears to the employer of a worker that the amount of any weekly rate payment calculated in accordance with this section is excessive having regard to the current weekly earnings of workers of the same grade or classification as the worker and employed by that employer in similar work to the worker, the employer or the licensed insurer of the employer may refer the matter to the Tribunal.(9) [Section 69 Subsection (9) amended by No. 43 of 1993, s. 17 ][Section 69 Subsection (9) amended by No. 16 of 1995, s. 46 ]The Tribunal may, in relation to any matter referred to it under subsection (8) , have regard to the weekly earnings, during the period of the worker's incapacity, of other workers on the same grade or classification as the worker and employed by the employer in similar work to the worker and determine the amount of weekly rate payments which appear to it to be reasonable and appropriate in the circumstances.(10) [Section 69 Subsection (10) amended by No. 43 of 1993, s. 17 ][Section 69 Subsection (10) amended by No. 16 of 1995, s. 46 ]In determining the amount of weekly rate payments under subsection (9) , the Tribunal shall have regard to the principle that a worker should not receive, during a period of incapacity, weekly rate payments greater than the payments the worker would have received if he had worked in his usual employment during that period.(11) [Section 69 Subsection (11) amended by No. 43 of 1993, s. 17 ][Section 69 Subsection (11) amended by No. 16 of 1995, s. 46 ]The amount of weekly rate payments determined by the Tribunal under subsection (9) shall be the amount of weekly rate payments payable to the worker notwithstanding that it may be a lesser amount than the compensation otherwise payable under this section.(12) [Section 69 Subsection (12) amended by No. 43 of 1993, s. 17 ][Section 69 Subsection (12) amended by No. 16 of 1995, s. 46 ]Where the weekly rate payments determined by the Tribunal under subsection (9) involve a reduction in the amount of weekly rate payments being made to a worker, the Tribunal shall determine the date from which that reduction is to take effect, being a date that is not earlier than the date of the determination of the Tribunal.
[Section 69A Inserted by No. 16 of 1995, s. 47 ] Section 69 (1) (a) (ii) (as amended by the Workers Rehabilitation and Compensation Reform Act 1995 ) is to be taken to have applied in respect of injuries suffered by a worker before or after the commencement of that Act.
69B. Period for which benefits are payable
[Section 69B Inserted by No. 16 of 1995, s. 47 ]The weekly payment determined under section 69 is to be payable as follows:(a) 100% of the weekly payment for the first 6 weeks following the date of incapacity;(b) 95% of the weekly payment for the period exceeding 6 weeks but not exceeding 25 weeks from the date of incapacity;(c) 90% of the weekly payment for the period exceeding 25 weeks from the date of incapacity.
70. Computation of normal weekly earnings
(1) [Section 70 Subsection (1) amended by No. 16 of 1995, s. 48 ]For the purposes of section 69 , a reference to the normal weekly earnings of a worker shall be construed as a reference to the normal weekly earnings of the worker as determined by subsection (2) .(2) [Section 70 Subsection (2) amended by No. 16 of 1995, s. 48 ]The normal weekly earnings of a worker shall be determined in accordance with the following provisions:(a) in computing normal weekly earnings, regard is to be had to the principle that, subject to this Act, a worker should receive no more than the worker would have received if the worker had continued in the worker's usual employment;(ab) in computing normal weekly earnings, any component of the worker's earnings attributed to overtime or excess hours is to be disregarded unless –(i) the overtime or excess hours was or were a requirement of the worker's contract of employment; and(ii) the worker worked overtime or excess hours in accordance with a regular and established pattern and in accordance with a roster; and(iii) the pattern was substantially uniform as to the number of overtime or excess hours worked; and(iv) the worker would have continued to work overtime or excess hours in accordance with the established pattern if the worker had not been incapacitated;(ac) in computing normal weekly earnings, any amounts paid to the worker at the discretion of the worker's employer by way of bonus, gratuity or other similar payment is to be excluded;(b) where, by reason of the shortness of time during which the worker has been in the employment of his employer, or by reason of the terms of his employment, it is impracticable to compute the normal weekly earnings of the worker under that employer during any relevant period under that employer, those normal weekly earnings shall, for the purposes of section 69 , be taken to be the normal weekly earnings during that period by a person in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person in the same grade employed in the same class of employment in the same district;(c) where –his normal weekly earnings shall, subject to paragraph (d) , be computed as if his earnings under all those contracts or in the employment of his several employers were earnings in the employment of the employer for whom he was working at the date when he suffered the injury;(i) the worker had entered into concurrent contracts of service with two or more employers under which he worked at one time for one of those employers and at another time for the other or another of those employers; or(ii) the worker's employment has been of a casual nature –(d) where one of the contracts referred to in paragraph (c) is a full-time contract of service, the normal weekly earnings of the worker shall be computed by reference only to the full-time contract of service;(e) employment by the same employer shall be taken to mean employment by the same employer in the grade in which the worker was employed at the date when he suffered the injury, uninterrupted by absence from work due to illness or other unavoidable cause, and the worker shall be deemed to have been employed in a new grade of employment whenever his rate of payment has been lawfully increased or decreased otherwise than by reason of a decision affecting the persons engaged in his grade of employment generally;(f) where the employer has been accustomed to pay to the worker a sum to cover any special expenses entailed on him by the nature of his employment, the sum so paid shall not be reckoned as part of the earnings;(fa) where the worker has been entitled to receive payment or allowances to cover the cost of expenses incurred in relation to travel, meals and accommodation during the worker's employment, such payment or allowances are not to be included as part of the earnings;(g) where the worker delivers to the employer a statement in writing, verified by statutory declaration, setting out the amount of his earnings during any period, that statement is evidence that that amount was the earnings of the worker during that period.(3) [Section 70 Subsection (3) inserted by No. 16 of 1995, s. 48 ]For the purposes of this section, excess hours means hours worked in addition to the minimum guaranteed contracted hours prescribed in an award, industrial agreement or enterprise agreement which applies to the worker or the worker's contract of employment.
71. Amount of compensation for specified injuries
[Section 71 Subsection (5) amended by No. 16 of 1995, s. 49 ](1) [Section 71 Subsection (1) amended by No. 16 of 1995, s. 49 ]Where a worker suffers an injury specified in the table set out in this subsection, the amount of compensation payable to him under this Act is, subject to this section, an amount equal to the number of units or the percentage of that number respectively specified opposite the injury in that table:TABLE
No. of item
Injury
No. of units or percentage
1
Total loss of the sight of both eyes
284
2
Total loss of sight of an only eye
284
3
Total loss of both hands
284
4
Total loss of both feet
284
5
Total loss of a hand and a foot
284
6
Total and incurable loss of intellectual capacity resulting from damage to the brain
284
7
Total and incurable paralysis of limbs or spine including quadriplegia or paraplegia
284
8
Severe facial scarring or disfigurement
227
9
Total and permanent impairment of the back
170
10
Total loss of an arm or of the greater part of an arm
149
11
Total loss of ability for sexual intercourse
149
12
Loss of genitals
149
13
Severe bodily disfigurement
142
14
Total loss of sense of taste or smell
142
15
Total loss of the lower part of an arm
128
16
Total loss of a hand or of 5 fingers of a hand
128
17
Total loss of a leg
138
18
Total and permanent impairment of the neck
113
19
Total loss of a foot
113
20
Total loss of the lower part of a leg
117
21
Total loss of the sight of one eye, together with the serious diminution of the sight of the other eye
138
22
Total loss of speech
113
23
Total loss of hearing
113
24
Total loss of the hearing of one ear
51
25
Total loss of the sight of one eye
78
26
Loss of binocular vision
78
27
Total loss of a thumb
51
28
Total and permanent impairment of the pelvis
42
29
Total loss of a forefinger
35
30
Total loss of two joints of forefinger of either hand
21
31
Total loss of the joint of a thumb
32
32
Total loss of the first joint of the forefinger of either hand
16
33
Total loss of the first joint of the middle or little or ring finger of either hand
14
34
Total loss of the middle finger of either hand
20
35
Total loss of the little or ring finger of either hand
19
36
Total loss of two joints of the middle finger of either hand
16
37
Total loss of two joints of the little or ring finger of either hand
16
38
Total loss of the great toe of either foot
35
39
Total loss of a joint of the great toe of either foot
19
40
Total loss of any other toe
14
41
Total loss of a joint of any other toe
4
42
Partial loss of the sight of both eyes or of an only eye
Such percentage of the amount payable under item 1 of this table as is equal to the percentage of the diminution of sight measured without the aid of a corrective lens.
43
Partial loss of the sight of one eye
Such percentage of the amount payable under item 25 of this table as is equal to the percentage of the diminution of sight measured without the aid of a corrective lens.
44
Partial loss of the hearing of both ears
Such percentage of the amount payable under item 23 of this table as is equal to the percentage of the diminution of hearing measured without any hearing aid.
45
Partial loss of the hearing of one ear
Such percentage of the amount payable under item 24 of this table as is equal to the percentage of the diminution of hearing measured without any hearing aid.
(2) [Section 71 Subsection (2) amended by No. 16 of 1995, s. 49 ]The provisions of subsection (1) shall be construed subject to the following provisions:(a) where the use of a member or part is wholly and permanently lost, there shall be deemed to be a total loss of that member or part;(b) where in relation to an injury specified in the table set out in subsection (1) the loss suffered by a worker consists of the loss of a proportion of, or a proportion of the use of the member, part, or faculty specified, the compensation payable in respect of such proportionate loss shall be such proportion of the amount equal to the number of units specified opposite the injury in that table as is equal to the proportionate loss suffered by the worker;(c) where compensation has been paid under this Act to a worker in respect of the loss of a part of a limb, hand, thumb, finger, foot, or toe, that compensation shall be deducted from any compensation payable in respect of the total loss of the same member or part, as the case may be;(d) where compensation has been paid under this section to a worker in respect of an injury and that injury increases in extent, there shall be deducted from any compensation payable under this section in respect of the injury as so increased the compensation previously so paid in respect of that injury;(e) where a worker suffers on the same occasion more than one of the injuries specified in the table set out in subsection (1) , he is not, in any case, entitled to receive more than an amount equal to 532 units.(f) . . . . . . . .(3) Notwithstanding anything contained in subsection (1) , the amount of compensation payable under this section for total loss of speech shall not be paid wholly or in part until the expiration of one year after the date of the occurrence of that injury.(4) Subject to section 73 , where it is necessary, for the purposes of subsection (1) , to determine the percentage of the diminution of sight or hearing of a worker, the percentage is such percentage as is agreed between the worker and his employer or, if the worker and employer are not able to agree on a percentage, the percentage of diminution shall be determined by a medical practitioner appointed by the employer and a medical practitioner appointed by the worker.(5) [Section 71 Subsection (5) amended by No. 50 of 1992, s. 10 ]If the medical practitioners referred to in subsection (4) do not agree upon the percentage of the diminution, the matter may be referred by the worker, the employer of the worker, or the licensed insurer of the employer to the Tribunal for a determination by it of the percentage of the diminution.(6) [Section 71 Subsection (6) amended by No. 50 of 1992, s. 10 ][Section 71 Subsection (6) omitted by No. 16 of 1995, s. 49 ]. . . . . . . .(7) [Section 71 Subsection (7) omitted by No. 16 of 1995, s. 49 ]. . . . . . . .(8) [Section 71 Subsection (8) omitted by No. 16 of 1995, s. 49 ]. . . . . . . .(9) [Section 71 Subsection (9) amended by No. 50 of 1992, s. 10 ]Where a worker suffers an injury specified in the table set out in subsection (1) , the worker, the employer of the worker, or the licensed insurer of the employer, if they are unable to agree on the amount of compensation payable to the worker in respect of that injury, may refer the matter to the Tribunal.(10) [Section 71 Subsection (10) amended by No. 16 of 1995, s. 49 ]Where a matter is referred to the Tribunal under subsection (9) , the Tribunal shall determine the amount of compensation which appears to it to be appropriate and proportionate to the injury or loss suffered by the worker.
72. Compensation for injuries comprising more than or part of any injury specified in section 71
(1) [Section 72 Subsection (1) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Where a worker suffers an injury –the injury shall, subject to this section, be regarded as an injury for which compensation based on the appropriate provisions of the table set out in section 71 (1) is payable, and the Tribunal may award as compensation such amount as, having regard to the provisions of that section, appears to be proportionate to the degree of injury suffered by the worker.(a) that, as to the major part, consists of an injury for which compensation is payable under section 71 ; or(b) that consists, to any lesser degree, of an injury for which compensation is payable under that section –(2) In no case shall the amount of compensation payable to a worker under this section in respect of any one injury exceed an amount equal to 532 units.
(1) Where compensation is payable to a worker under section 71 in respect of industrial deafness, the compensation payable under that section in respect of industrial deafness shall be an amount equivalent to –as is equal to the prescribed percentage.(a) if both ears are affected, such percentage of the amount payable under item 23 in the table set out in section 71 (1) ; or(b) if only one ear is affected, such percentage of the amount payable under item 24 in that table –(2) For the purposes of subsection (1), the prescribed percentage means the percentage of the diminution of the normal hearing of the worker concerned, reduced, where applicable, by the percentage of that diminution as is shown –(a) to have arisen otherwise than from industrial deafness;(b) subject to section 27 , to have been contracted outside this State; or(c) to be a condition in respect of which compensation has been awarded or paid under this Act or under a law of another State or of the Commonwealth or a Territory of the Commonwealth (being a law relating to workers' compensation).(3) Paragraph (d) of section 71 (2) applies to industrial deafness as it applies to an injury specified in the table set out in section 71 (1) and subsections (4) and (5) of section 71 apply to industrial deafness as they apply for the purposes of section 71 (1) .(4) The regulations may prescribe the manner in which any determination or assessment required under this section to be made in relation to the hearing of a worker is to be so made, and that manner may be so prescribed wholly or partly by reference to any scale, recommendation, formula, procedure, or other matter laid down or formulated by any authority or body exercising functions in the Commonwealth in relation to the measurement of hearing or by the Standards Association of Australia.(5) [Section 73 Subsection (5) inserted by No. 16 of 1995, s. 50 ]A worker who has industrial deafness has suffered an injury within the meaning of this Act notwithstanding that the worker has not incurred a loss of earning capacity.(6) [Section 73 Subsection (6) inserted by No. 16 of 1995, s. 50 ]A worker is entitled to compensation under this Act in respect of industrial deafness which occurred after the commencement of the Workers Rehabilitation and Compensation Reform Act 1995 and which exceeds 5% diminution of hearing.(7) [Section 73 Subsection (7) inserted by No. 16 of 1995, s. 50 ]For the purposes of subsection (6) , the 5% diminution of hearing due to industrial deafness is to be calculated by reference to the worker's hearing ability at the commencement of the Workers Rehabilitation and Compensation Reform Act 1995 .
Division 2 - Medical and Other Services
74. Interpretation of Division 2 of Part VI
[Section 74 Amended by No. 43 of 1993, s. 18 ][Section 74 Amended by No. 87 of 1994, s. 84 and Sched. 4 ][Section 74 Amended by No. 81 of 1995, s. 80 and Sched. 4 ][Section 74 Amended by No. 100 of 1995, s. 97 and Sched. 7 ]In this Division, unless the contrary intention appears –ambulance services means the conveyance of a worker by any practicable means to the nearest suitable hospital or rehabilitation centre or other place for the purpose of his receiving medical, hospital, or rehabilitation services, or to his place of residence after receiving or seeking any of those services;[Section 74 Amended by No. 48 of 1997, Sched. 4, Applied:10 Jun 1998][Section 74 Amended by No. 48 of 1997, Sched. 4, Applied:10 Jun 1998] chiropractor means a person who is registered as a chiropractor under the Chiropractors and Osteopaths Registration Act 1997 ;constant attendance services means the services of a person, other than a member of the family of the worker, where the injury suffered by a worker is of such a nature that he must have the regular or constant personal attendance of another person but does not include hospital services or nursing services;dentist means a person who is registered under Part II of the Dental Act 1982 ;hospital services means –(a) maintenance, attendance, and treatment at a public or private hospital; or(b) the provision or supply by such a hospital of –(i) medical attendance or medical treatment;(ii) nursing attendance;(iii) medicines, medical or surgical supplies, or other curative supplies or apparatus; or(iv) other usual or necessary hospital services;medical services means –(a) [Section 74 Amended by No. 48 of 1997, Sched. 4, Applied:10 Jun 1998] attendance, examination, or treatment of any kind by, or under the supervision of, a medical practitioner, chiropractor, dentist, optometrist, osteopath, physiotherapist, podiatrist or psychologist;(b) the provision, maintenance, repair, adjustment, or replacement of artificial limbs, eyes or teeth, crutches, splints, spectacles, and other medical and surgical aids and curative appliances or apparatus;(c) the repair or replacement of artificial limbs, eyes or teeth, crutches, splints, spectacles or other medical or surgical aids or curative appliances or apparatus destroyed or damaged at the time of an injury;(d) the provision by a pharmaceutical chemist of medicines or materials; or(e) [Section 74 Amended by No. 48 of 1997, Sched. 4, Applied:10 Jun 1998] any examination, test, or analysis carried out on, or in relation to, a worker at the request or direction of a medical practitioner, chiropractor, dentist, optometrist, osteopath, physiotherapist, or podiatrist and the provision of a report or certificate in respect of such an examination, test, or analysis;nurse means a person who is registered or enrolled under the Nursing Act 1995 ;nursing services means nursing services rendered by a nurse otherwise than at a hospital or as a member of the nursing staff of a hospital;optometrist means a registered optometrist within the meaning of the Optometrists Registration Act 1994 ;[Section 74 Amended by No. 48 of 1997, Sched. 4, Applied:10 Jun 1998] osteopath means a person who is registered as an osteopath under the Chiropractors and Osteopaths Registration Act 1997 ;pharmaceutical chemist means a registered pharmaceutical chemist within the meaning of the Pharmacy Act 1908 ;[Section 74 Amended by No. 106 of 1999, Sched. 6, Applied:01 Mar 2000][Section 74 Amended by No. 106 of 1999, Sched. 6, Applied:01 Mar 2000] physiotherapist means a person who is registered as a physiotherapist under the Physiotherapists Registration Act 1999 ;podiatrist means a registered podiatrist within the meaning of the Podiatrists Registration Act 1995 ;rehabilitation services means –(a) treatment, training, or other assistance provided to facilitate or assist a worker's rehabilitation;(b) the supply of material or equipment in respect of any occupational therapy projects undertaken by a worker; or(c) any necessary and reasonable modifications required to be made to a worker's workplace, place of residence, or motor vehicle.
75. Additional compensation for medical and other services
(1) Where an employer of a worker is, pursuant to section 25 , liable to pay compensation in accordance with this Act, the employer is, subject to this section, liable to pay as compensation to the worker or his dependants –(a) the reasonable expenses necessarily incurred by the worker as a result of his injury for medical services, hospital services, nursing services, constant attendance services, rehabilitation services, and ambulance services; and(b) the reasonable expenses of the worker's burial or cremation, where the worker dies as a result of his injury.(2) [Section 75 Subsection (2) amended by No. 43 of 1993, s. 19 ]An employer shall not be required to pay, in respect of medical treatment provided to or carried out on a worker for an injury in respect of which the employer is liable to pay compensation in accordance with this Act by a medical practitioner, an amount exceeding the fee published by the Australian Medical Association, and current at the time the treatment is provided or carried out, to be charged for that treatment by the Association's members in the State or Territory of the Commonwealth in which the treatment is provided or carried out.(2A) [Section 75 Subsection (2A) inserted by No. 16 of 1995, s. 51 ]A person who provides any services in respect of a claim for compensation under this Act must not charge a fee that is in excess of the fee that the person would normally charge for that service if that service were provided for a matter not connected with a claim for compensation.Penalty: Fine not exceeding 100 penalty units.(3) [Section 75 Subsection (3) amended by No. 50 of 1992, s. 10 ][Section 75 Subsection (3) amended by No. 16 of 1995, s. 51 ]Where as a result of an injury suffered by a worker the question arises as to whether or not any constant attendance services are required by the worker, the matter may be referred to the Tribunal by the worker, the employer of the worker, or the licensed insurer of the employer for determination as to –(a) the necessity for such services;(b) the period for which such services are to be provided; and(c) the level of payments which it considers to be reasonable and appropriate for such services.(4) An employer who is required by subsection (1) to pay expenses for a service referred to in paragraph (a) of that subsection or for the burial or cremation of a worker shall, to the extent provided in this section, pay those expenses to the person or body of persons who performed the service or carried out the burial or cremation.(5) Notwithstanding subsection (4) , where an employer's liability to a person or body of persons under that subsection has already been discharged in whole or in part by a payment by the worker concerned or any other person, whether he is legally liable to make that payment or not, the employer shall, to the extent provided by this section, pay the amount by which the liability has been so discharged to the worker or, in the case of the worker's death, to his legal personal representatives or dependants, or to the other person by whom the liability was so discharged, as the case requires.(6) Where a worker or his legal personal representatives or dependants, by reason of any prior contract, agreement, or arrangement made by the worker, or by reason of his being a contributor or subscriber to any institution, fund, or scheme is or are entitled to any of the services referred to in subsection (1) (a) or to the worker's burial or cremation free of charge or at a reduced rate of charge, the payment by the employer in respect of the expenses of that service, burial, or cremation shall not thereby be reduced, but, after payment of the amount (if any) actually owing to the person or body of persons who provided the service or performed the burial or cremation, the balance of the expenses shall, to the extent provided by this section, be paid to the worker or, as the case requires, to his legal personal representatives or dependants.(7) The compensation payable under this section is in addition to all other compensation payable under this Act to a worker or his dependants, and the fact that a worker is, or his dependants are, entitled to compensation under this section does not restrict the compensation payable to him or them under any other provision of this Act.(8) [Section 75 Subsection (8) amended by No. 16 of 1995, s. 51 ]The payment of the reasonable expenses of any service, repair or replacement, or burial or cremation expenses pursuant to this section, whether by agreement or upon the determination of the Tribunal, discharges the worker, his legal personal representatives, his dependants, and every other person from liability in respect of the expenses of that service, repair or replacement, or burial or cremation.(9) [Section 75 Subsection (9) amended by No. 43 of 1993, s. 19 ]No action, claim, or demand shall be brought or allowed by or in favour of any person against a worker, or the legal personal representatives or dependants of a worker, for the payment or recovery of –(a) any expenses that his employer is liable to pay pursuant to subsection (1) ; or(b) the difference between the amount charged by a medical practitioner, in relation to medical treatment provided to or carried out on a worker for any injury in respect of which an employer is liable to pay compensation in accordance with this Act, and the amount of the fee mentioned in subsection (2) in respect of that treatment.(10) [Section 75 Subsection (10) inserted by No. 43 of 1993, s. 19 ]In this section, medical treatment, in relation to a worker, includes any attendance, examination, treatment, test or analysis provided to or carried out on the worker.
76. Additional compensation for travelling expenses
(1) Where an employer of a worker is, pursuant to section 25 , liable to pay compensation in accordance with this Act, the employer is liable to pay to the worker or his dependants the reasonable expenses necessarily incurred by the worker for travelling and maintenance in connection with all or any of the following purposes:(a) to undergo any medical examination pursuant to section 85 ;(b) to obtain the medical services, hospital services, or rehabilitation services in respect of which he is entitled to compensation under this Division.(2) In addition to paying the reasonable expenses incurred by a worker under subsection (1) , his employer is liable to pay the reasonable expenses necessarily incurred by a person who attends the worker while he is travelling in connection with a purpose to which that subsection applies, but only if a medical practitioner certifies, in writing, that it is necessary in the circumstances that the worker be accompanied by some other person while he is travelling for that purpose.(3) [Section 76 Subsection (3) inserted by No. 16 of 1995, s. 52 ]If the reasonable expenses necessarily incurred –involves the use of a private motor vehicle, the amount payable for the use of that motor vehicle is to be calculated at the rate payable to an occasional user of a private motor vehicle under the General Conditions of Service Award made by the Tasmanian Industrial Commission.(a) by a worker for travelling and maintenance in connection with all or any of the purposes specified in subsection (1) ; or(b) by a person who attends the worker while that person is travelling in connection with a purpose to which subsection (1) applies –
77. Certain questions to be determined by Tribunal
[Section 77 Amended by No. 50 of 1992, s. 10 ][Section 77 Amended by No. 16 of 1995, s. 91 and Sched. 1 ]Any question whether any claim for payment under this Division is a proper claim, or as to the reasonableness of the amount of such a claim or the necessity for the medical services or rehabilitation services which are the subject of the claim, may, if not settled by agreement, be referred by the worker, the employer of the worker, or the licensed insurer of the employer to the Tribunal for determination.
Division 2A - Accreditation[Part VI, Div. 2A Inserted by No. 16 of 1995, s. 53 ]
77A. Provision of certain services
[Section 77A Inserted by No. 16 of 1995, s. 53 ](1) A medical practitioner is not to issue a certificate required to be issued under this Act unless the medical practitioner has been accredited by the Board.(2) A person is not to issue a certificate under subsection (1) (b) of section 34 or subsection (1) of section 69 in respect of an injury for which compensation is or may be payable unless that person belongs to a class of persons prescribed for the purpose of issuing certificates under these subsections in respect of a prescribed injury or class of injuries and has been accredited by the Board.(3) A person is not to provide a prescribed service in respect of an injury for which compensation is or may be payable under this Act unless the person belongs to a class of persons prescribed in relation to the prescribed service and that person has been accredited by the Board.
77B. Application for accreditation
[Section 77B Inserted by No. 16 of 1995, s. 53 ](1) A medical practitioner who wishes to issue a certificate required to be issued under this Act may apply to the Board for accreditation.(2) A person who wishes to provide a service referred to in section 77A (2) or (3) may apply to the Board for accreditation.(3) An application for accreditation is to be –(a) in a form approved by the Board; and(b) accompanied by the prescribed fee (if any).
77C. Grant, &c., of accreditation
[Section 77C Inserted by No. 16 of 1995, s. 53 ](1) Subject to subsection (2) , the Board may, by notice in writing served on the medical practitioner or person, grant or refuse to grant accreditation to the medical practitioner or person.(2) The Board is not to grant accreditation to a medical practitioner or person unless it is satisfied that the medical practitioner or person has undertaken a course of training approved by it.
[Section 77D Inserted by No. 16 of 1995, s. 53 ](1) An accreditation remains in force for a period of 12 months from the day on which it is granted.(2) An accredited medical practitioner or accredited person may, within the period of 30 days before the accreditation ceases to be in force, apply to the Board for the renewal of the accreditation.(3) An application for the renewal of the accreditation –(a) is to be in a form approved by the Board; and(b) is to be accompanied by the prescribed fee (if any).(4) The Board may grant or refuse to grant the renewal of the accreditation.(5) Where an application for the renewal of an accreditation is made before the date on which the accreditation would, but for this subsection, have ceased to be in force (which date is, in this subsection, referred to as "the date of expiry") and –(a) the renewal is granted before the date of expiry – on the grant of renewal, the accreditation is to be in force for the period of 12 months commencing on the date of expiry; or(b) the renewal is not granted or not refused before the date of expiry and the application is not withdrawn before the date of expiry –(i) the accreditation is deemed to continue in force on and from the date of expiry until the renewal is granted or the application is withdrawn, or, where the Board refuses to grant the renewal, the date on which that refusal takes effect, whichever first occurs; and(ii) on the grant of the renewal, the accreditation is deemed to have taken effect on and from the date of expiry.(6) Where the renewal of an accreditation is refused by the Board, the Board, by notice in writing served on the medical practitioner or person, is to inform the medical practitioner or person of the refusal.(7) The refusal, subject to section 77G (3) , takes effect on such date as the Board specifies in the notice, being a date not earlier than 14 days after the service of the notice on the medical practitioner or person.
[Section 77E Inserted by No. 16 of 1995, s. 53 ]Where the Board refuses to grant or renew accreditation it is to give to the medical practitioner or person, in writing, its reasons for so refusing.
77F. Revocation or suspension of accreditations
[Section 77F Inserted by No. 16 of 1995, s. 53 ](1) Subject to subsection (2) , the Board may, by notice in writing served on an accredited medical practitioner or accredited person, revoke or suspend the accreditation of that medical practitioner or person if it is satisfied –(a) that the accredited medical practitioner or accredited person has failed to comply with any provision of this Act and the failure constitutes a substantial breach of the requirements of this Act; or(b) that the accredited medical practitioner or accredited person has been convicted of an offence against this Act; or(c) that the accreditation should be revoked or suspended in the public interest.(2) Before the Board revokes or suspends the accreditation of a medical practitioner or person, it is to consult with such bodies as it considers represents the interests of that medical practitioner or person.(3) A notice under subsection (1) is to be accompanied by a statement of the Board's reasons for revoking or suspending the accreditation.(4) The revocation or suspension of an accreditation, subject to section 77G (3) , takes effect on such date as the Board specifies in the notice, being a date not earlier than 14 days after the service of the notice on the accredited medical practitioner or accredited person.
[Section 77G Inserted by No. 16 of 1995, s. 53 ](1) A medical practitioner or person may appeal to the Tribunal if the medical practitioner or person is aggrieved by –(a) the refusal of the Board to grant that medical practitioner or person accreditation; or(b) the refusal of the Board to renew the accreditation held by that medical practitioner or person; or(c) the revocation or suspension by the Board of the accreditation held by that medical practitioner or person.(2) An appeal under this section is to be instituted within a period of 14 days from –(a) in the case of an appeal against the refusal of the Board to grant accreditation, the service of a notice under section 77C (1) ; and(b) in the case of an appeal against the refusal of the Board to grant the renewal of an accreditation, the service of a notice under section 77D (6) ; and(c) in the case of an appeal against the revocation or suspension of an accreditation, the service of a notice under section 77F (1) .(3) Where an appeal is brought under this section in respect of –the refusal, revocation or suspension does not have effect until the determination or abandonment of the appeal or until such later date as the Tribunal determines.(a) the refusal of the Board to grant the renewal of an accreditation; or(b) the revocation or suspension of an accreditation –(4) On an appeal under this section, the Tribunal (unless it dismisses the appeal) may, by order, quash the decision of the Board and direct the Board to take such action as the Tribunal considers necessary in the matter to which the appeal relates.(5) The Board is to comply with any order of the Tribunal under subsection (4) .(6) Subject to this section, an appeal under this section is to be instituted, heard and determined as prescribed.(7) The decision of the Tribunal on the hearing of an appeal under this section is final, and, subject to section 63 , is not subject to appeal.
77H. Publication of grant of accreditation
[Section 77H Inserted by No. 16 of 1995, s. 53 ]Where an accreditation is granted, the renewal of an accreditation is refused or an accreditation is revoked or suspended the Board is to cause to be published in the Gazette notice of that fact.
Division 3 - Special provisions relating to the payment of compensation in respect of injuries contracted by gradual process
78. Injuries contracted by gradual process
(1) [Section 78 Subsection (1) amended by No. 16 of 1995, s. 54 ]Where an injury suffered by a worker is of such a nature as to be contracted by a gradual process, compensation is payable by –(a) the employer in whose employment the worker was when the injury occurred, if the injury was due to the nature of his employment with that employer; or(b) the employer who last employed the worker if the nature of the employment was likely to have given rise to that injury, in any other case.(2) An employer who, at any time during the period of 3 years immediately preceding the day on which an injury referred to in subsection (1) occurred to a worker, employed the worker in any employment to the nature of which the injury was due shall make to the employer referred to in that subsection such contribution as is agreed between the employers.(3) [Section 78 Subsection (3) amended by No. 50 of 1992, s. 10 ][Section 78 Subsection (3) amended by No. 16 of 1995, s. 54 ]Where the employers referred to in subsection (2) cannot agree as to the amount of contribution, any of the employers may refer the matter to the Tribunal for a determination as to the amount of contribution.
79. Information to be supplied
(1) A worker referred to in subsection (1) of section 78 shall, on demand by an employer referred to in that subsection, furnish that employer with such information as is within his knowledge as to the name and address of any employer who may be liable, pursuant to subsection (2) of that section, to make a contribution.(2) A worker to whom subsection (1) applies who fails to comply with that subsection is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units.
80. Employer to whom notice to be given
The employer to whom notice of death of, or notice of injury to, a worker referred to in section 78 (1) is to be given is the employer who last employed the worker in the employment to the nature of which the relevant disease was due, and the notice may be given notwithstanding that the worker has voluntarily left his employment.
PART VII - Payment of compensation and related matters
Division 1 - [Part VII, Div. 1 Heading amended by No. 50 of 1992, s. 8 ]Provisions relating to weekly payments and other benefits
81. Commencement of weekly payments
[Section 81 Substituted by No. 50 of 1992, s. 9 ](1) Where an employer has received a claim for compensation in relation to an injury to a worker employed by the employer and the worker's first pay day after receipt of that claim –(a) is not later than 14 days after the receipt of that claim, the employer must –(i) if it is reasonably practicable to do so, commence making weekly payments to the worker on the first pay day; or(ii) in any other case, commence making weekly payments to the worker not later than 14 days after receipt by the employer of the worker's claim for compensation; or(b) is later than 14 days after the receipt of that claim, the employer must commence making weekly payments of compensation on that pay day.(2) Subject to subsection (3) , an employer who fails to comply with subsection (1) is guilty of an offence.Penalty: Fine not exceeding 20 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.(3) [Section 81 Subsection (3) substituted by No. 48 of 1996, s. 12 ] Subsection (1) does not apply to an employer who –(a) in accordance with section 81AA , defers making a decision to accept or dispute liability to pay compensation by way of weekly payments or other benefits; or(b) in accordance with section 81A (1) , disputes liability to pay compensation by way of weekly payments or other benefits.(4) In this section, pay day means the day on which the worker would normally receive salary or wages from the worker's employer.
81AA. Deferral of acceptance of liability
[Section 81AA Inserted by No. 48 of 1996, s. 13 ](1) An employer who requires further information to determine whether the claim for compensation gives rise to an entitlement under this Act may defer a decision to accept or dispute liability to pay compensation by way of weekly payments or other benefits.(2) The deferral of a decision under subsection (1) is effected by the employer, as soon as practicable but not later than 14 days after receiving the claim for compensation –(a) serving on the worker a written notice stating –(i) that the employer needs to defer that decision; and(ii) the reasons for the requirement for further information; and(iii) the action taken or to be taken by the employer to obtain the further information; and(b) taking reasonable action to obtain the further information.(3) An employer who has deferred a decision under subsection (1) must, within 28 days of receiving the claim for compensation in respect of the injury to the worker –(a) accept liability and commence payment of weekly payments or other benefits to the worker; or(b) dispute liability and comply with section 81A .(4) An employer who has deferred a decision under subsection (1) may make weekly payments or pay other benefits to the worker pending the making of that decision.(5) Where an employer makes weekly payments or pays other benefits under subsection (4) , those payments or benefits –(a) are not, in any subsequent proceedings under this Act, to be construed as an admission of liability; and(b) are to be taken in reduction of the amount of the employer's liability in respect of the injury referred to in section 81 (1) ; and(c) are not recoverable from the worker by the employer; and(d) are not recoverable from the employer's insurer by the employer unless compensation is payable in accordance with this Act.(6) Notwithstanding subsection (5) (c) , an employer may deduct from a worker's sick leave entitlements any period during which the worker was paid compensation by way of weekly payments or other benefits under subsection (4) if liability to make those payments or pay those benefits is subsequently determined not to exist.
81A. Disputes of liability for weekly payments and other benefits
[Section 81A Inserted by No. 50 of 1992, s. 9 ](1) [Section 81A Subsection (1) amended by No. 16 of 1995, s. 55 ]An employer who disputes liability –(a) to pay compensation by way of weekly payments for an injury referred to in section 81 (1) ; or(b) to pay the cost of any benefits payable under Division 2 of Part VI in respect of the injury –must, within 14 days of receiving the claim for compensation in respect of the injury to the worker –(c) serve the worker with written notice that the employer disputes liability –(i) to pay compensation by way of weekly payments and must inform the worker of the reasons for disputing liability; or(ii) to pay any benefits payable under Division 2 of Part VI in respect of the injury and must inform the worker of the reasons for disputing liability; and(d) refer the matter to the Tribunal.(2) [Section 81A Subsection (2) amended by No. 16 of 1995, s. 55 ]An employer who refers a matter to the Tribunal under subsection (1) must, at the time of referring the matter to the Tribunal, advise the Tribunal in writing whether or not weekly payments are being made to the worker pending determination of the matter by the Tribunal.(2A) [Section 81A Subsection (2A) inserted by No. 16 of 1995, s. 55 ]Where a matter is referred to the Tribunal under subsection (1) , the Tribunal may authorise the Registrar to determine whether a genuine dispute exists concerning the liability of the employer to pay –(a) compensation by way of weekly payments; or(b) the cost of any benefits payable under Division 2 of Part VI in respect of the injury to the worker.(2B) [Section 81A Subsection (2B) inserted by No. 16 of 1995, s. 55 ]The Registrar is to advise the Tribunal of the Registrar's determination.(2C) [Section 81A Subsection (2C) inserted by No. 16 of 1995, s. 55 ]The Tribunal may make an order giving effect to the Registrar's determination.(3) [Section 81A Subsection (3) amended by No. 16 of 1995, s. 55 ]The Tribunal must –(a) if the Tribunal considers that weekly payments should be made, order the employer to make weekly payments from such date as the Tribunal determines; or(b) if the Tribunal considers that the cost of any benefits payable under Division 2 of Part VI in respect of the injury to the worker should be paid, order the employer to pay the cost of the benefits from such date as the Tribunal determines; or(c) if the Tribunal considers that a genuine dispute exists concerning the liability of the employer to pay compensation by way of weekly payments, determine that compensation is not to be paid by the employer; or(d) if the Tribunal considers that a genuine dispute exists concerning the liability of the employer to pay the cost of any benefits payable under Division 2 of Part VI in respect of the injury to the worker, determine that the cost of the benefits is not to be paid by the employer.(4) [Section 81A Subsection (4) amended by No. 16 of 1995, s. 55 ]The fact that the Tribunal has determined under subsection (3) that weekly payments should be made, or that the cost of any benefits payable under Division 2 of Part VI in respect of the injury to the worker should be paid, is not to be taken into account by the Tribunal in any other proceedings under this Act.(5) [Section 81A Subsection (5) amended by No. 16 of 1995, s. 55 ][Section 81A Subsection (5) amended by No. 48 of 1996, s. 14 ]Notwithstanding that liability has not been disputed in accordance with subsection (1) or section 81AA (3) , an employer who wishes to dispute liability to continue to pay compensation by way of weekly payments for an injury referred to in section 81 (1) or to pay the cost of any benefits payable under Division 2 of Part VI in respect of the injury may, at any time after the expiration of the period referred to in subsection (1) of this section or section 81AA (3) , as the case may be, refer the matter to the Tribunal.(6) [Section 81A Subsection (6) inserted by No. 16 of 1995, s. 55 ]For the purposes of this section, the Tribunal or the Registrar may conduct any hearing the Tribunal or the Registrar considers necessary by any appropriate means including, but not limited to, a telephone conference.
81AB. Failure to dispute liability
[Section 81AB Inserted by No. 48 of 1996, s. 15 ]Where an employer has received a claim for compensation in relation to an injury to a worker employed by the employer and the employer does not, in accordance with section 81AA or section 81A , dispute liability to pay compensation, the employer is taken to have accepted liability in respect of that claim.
81B. Payment of weekly payments
[Section 81B Inserted by No. 50 of 1992, s. 9 ]Weekly payments payable to a worker under this Act are payable on the days on which, and at the intervals, the worker is normally paid salary or wages by the worker's employer or, if the worker is no longer employed by that employer, on the days on which, and at the intervals, the worker would normally have been paid salary or wages by the employer if the worker had continued in that employment.[Section 82 Amended by No. 43 of 1993, s. 20 ][Section 82 Repealed by No. 16 of 1995, s. 56 ]. . . . . . . .
83. Right of worker to receive weekly payments if worker ceases to reside in this State
[Section 83 Substituted by No. 16 of 1995, s. 57 ]If a worker who is in receipt of a weekly payment ceases to reside in this State, the worker is not entitled to continue to receive the weekly payment unless the worker proves, in such manner and at such intervals as may be prescribed –(a) the worker's address and identity; and(b) the continuance of the incapacity due to the injury in respect of which the payment is payable.
84. Paid holidays during incapacity
[Section 84 Substituted by No. 16 of 1995, s. 58 ](1) If during a period for which compensation would otherwise be payable to a worker under this Act there occurs any period during which the worker would be entitled, under the contract of service in force when the right to compensation occurred, to be absent from his or her employment on annual recreational leave on full pay –(a) the worker must be given by his or her employer a similar period of leave on full pay in lieu of that annual recreational leave at some time within 3 months from the date of his or her return to work, or at the termination of his or her right to compensation under this Act if he or she does not then return to work; or(b) if the worker so desires, the worker may, by arrangement with his or her employer, take annual recreational leave during the period of incapacity for which compensation is payable.(2) If a worker takes annual recreational leave during a period of incapacity in accordance with subsection (1) (b) , the worker is not entitled to receive weekly payments for compensation during that annual recreational leave.(3) An employer must not attempt to cause or require a worker to take annual recreational leave during a period of incapacity for which compensation is payable.Penalty: Fine not exceeding 100 penalty units.
85. Medical examination of workers
(1) A worker who –under this Act shall submit himself, if and when required, for examination by a medical practitioner provided and paid for by his employer at any reasonable time and place of which he has reasonable notice.(a) claims compensation; or(b) is receiving a weekly payment –(2) A worker shall not be required to submit himself for examination under this section otherwise than in accordance with the regulations or at more frequent intervals than may be prescribed in the regulations.(3) [Section 85 Subsection (3) substituted by No. 16 of 1995, s. 59 ]If a worker has submitted himself or herself for examination under this section, or has been examined by a medical practitioner selected by the worker, and it is intended to rely on the report of the medical practitioner in the claim for compensation, the employer must serve on the worker, or the worker must serve on the employer, a copy of the examining practitioner's report within 7 days after the report is received by the employer or worker and, in any event, not later than 30 days after the examination is made or such further period as the Tribunal may permit.(3A) [Section 85 Subsection (3A) inserted by No. 16 of 1995, s. 59 ]If the report of the medical practitioner is not served in accordance with subsection (3) , the report cannot be used as evidence in respect of a claim for compensation.(4) Where a medical practitioner provided by an employer under subsection (1) reports that any medical or surgical treatment specified by the practitioner will terminate or shorten the period of incapacity of the worker to whom the report relates, the following provisions apply:(a) subject to paragraph (b) , the worker shall submit himself to that treatment;(b) where the worker notifies the employer, not later than 7 days after the date on which a copy of the practitioner's report has been served on him pursuant to subsection (3) , that he is not satisfied with the report, he shall submit to an examination by another medical practitioner selected by himself;(c) the medical practitioner who makes an examination pursuant to paragraph (b) shall make a report, in writing, on the examination and shall forward copies of the report to the worker and the employer;(d) where the report under paragraph (c) is in agreement with the report under subsection (1) , the worker shall as soon as practicable submit himself to the treatment specified in the last-mentioned report.(5) [Section 85 Subsection (5) amended by No. 50 of 1992, s. 10 ][Section 85 Subsection (5) amended by No. 16 of 1995, s. 59 ]Where –the employer or the worker may refer the matter to the Tribunal.(a) after a copy of a report is served as required by subsection (3) , the employer and the worker concerned are unable to agree as to –(i) whether, or to what extent, the worker's incapacity is due to the injury in respect of which he is claiming or receiving compensation; or(ii) the worker's condition or fitness for employment;(b) the reports made by the medical practitioners referred to in subsection (4) do not agree; or(c) a worker refuses to submit himself to an examination when required under this section or in any way obstructs such an examination or refuses to submit himself to any treatment required in accordance with this section –(6) [Section 85 Subsection (6) amended by No. 16 of 1995, s. 59 ]Where a worker refuses to submit himself to an examination when required under this section or in any way obstructs such an examination or refuses to submit himself to, or undertake, any treatment required in accordance with this section, his right to compensation and his right to take any proceedings under this Act in relation to compensation are, except where the treatment to which he has refused to submit himself is surgical treatment, suspended until the matter has been determined by the Tribunal.(7) [Section 85 Subsection (7) amended by No. 16 of 1995, s. 59 ]In determining any matter referred to it under subsection (5) , the Tribunal may, where the payment of compensation has been suspended under subsection (6) , specify whether compensation may be paid to the worker in respect of that period of suspension and the period of that suspension in respect of which the worker is entitled to be paid compensation.
86. Cases in which employer may terminate or reduce payments
[Section 86 Subsection (4) amended by No. 16 of 1995, s. 60 ](1) [Section 86 Subsection (1) amended by No. 16 of 1995, s. 60 ]Except in pursuance of a determination made by the Tribunal under section 88 (2) , an employer may, subject to this section, terminate or reduce a weekly payment made to a worker only where –(a) the payment is in respect of total incapacity and the worker has returned to work;(b) the worker is in receipt of the weekly payment in respect of partial incapacity and is receiving weekly earnings in excess of the amount upon which the amount of such weekly payment was determined;(c) an accredited medical practitioner who has examined the worker has certified that, in his opinion, the worker has wholly recovered or substantially recovered, from the effects of the injury in respect of which the payment is being made or that the worker's incapacity is no longer due, wholly or substantially, to that injury;(d) a worker has failed or refused to undertake or participate in a rehabilitation program or suitable alternative duties recommended by his employer; or(e) weekly payments made to the worker during a period of total incapacity have reached the amount referred to in section 69 (6) .(2) A certificate referred to in subsection (1) (c) shall specify the grounds upon which the opinion expressed in it is given.(3) [Section 86 Subsection (3) amended by No. 43 of 1993, s. 21 ]An employer who, for the reasons specified in subsection (1) (c) , (d) or (e) , intends to terminate or reduce a weekly payment made to a worker shall cause to be served on the worker –(a) a notice of his intention to terminate the weekly payment being made to the worker, or to reduce that payment by the amount specified in the notice at the expiration of a period of 10 days from the day on which the notice was served on the worker; and(b) where the employer's intention to terminate or reduce is based on a certificate referred to in subsection (1) (c) , a copy of that certificate.(3A) [Section 86 Subsection (3A) inserted by No. 16 of 1995, s. 60 ]A notice referred to in subsection (3) (a) is to contain a statement informing the worker of the worker's right to refer the termination or reduction of the weekly payments to the Tribunal for determination.(4) [Section 86 Subsection (4) amended by No. 50 of 1992, s. 10 ]A worker who has been served with a notice under subsection (3) (a) and who wishes to dispute the termination or reduction of the weekly payments being made to him may within a period of 60 days from the date on which the weekly payments were terminated or reduced, refer the matter to the Tribunal for determination.(5) An employer who terminates or reduces a weekly payment otherwise than in accordance with this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units.
87. Cessation on account of age of entitlement to weekly payments
[Section 87 Subsection (2) amended by No. 16 of 1995, s. 91 and Sched. 1 ](1) Subject to subsection (2) , an entitlement of a worker to weekly payments of compensation under section 69 in relation to an injury in respect of which an employer is liable to pay compensation under this Act ceases –(a) if the injury occurs on or before the date on which the worker attains the age of 64 years, on his attaining the age of 65 years; or(b) if the injury occurs after the date on which the worker attains the age of 64 years, on the date one year after after the injury occurs.(2) [Section 87 Subsection (2) amended by No. 50 of 1992, s. 10 ]Where the terms and conditions of a worker's employment are such as to permit him or her to continue in that employment beyond the age of 65 years, the worker may refer to the Tribunal for determination the question as to whether or not the provisions of subsection (1) should apply to him.(3) [Section 87 Subsection (3) amended by No. 16 of 1995, s. 91 and Sched. 1 ]In any case referred to it pursuant to subsection (2) , if the Tribunal is satisfied –the Tribunal may determine that weekly payments of compensation may be continued beyond the dates mentioned in subsection (1) and shall determine the period for which such payments are to be continued.(a) that the terms of the worker's employment would have entitled him or her to continue in that employment beyond the age of 65 years and the worker, but for the injury referred to in subsection (1) , intended to continue in that employment beyond that age; and(b) that the incapacity of the worker resulting from that injury will continue beyond the date on which he or she attains the age of 65 years –
[Section 88 Subsection (1) amended by No. 16 of 1995, s. 91 and Sched. 1 ](1) [Section 88 Subsection (1) amended by No. 50 of 1992, s. 10 ]A worker, an employer of a worker, or the licensed insurer of the employer may refer to the Tribunal for review a weekly payment being made to the worker.(2) [Section 88 Subsection (2) amended by No. 16 of 1995, s. 91 and Sched. 1 ]The Tribunal may, upon hearing an application to review a weekly payment, make a determination –(a) terminating or reducing the payment; or(b) increasing the payment, subject to the limitations prescribed by section 69 .
89. Certain payments not redeemable
[Section 89 Substituted by No. 16 of 1995, s. 61 ]Liability for weekly payments to a worker for an injury in respect of which an employer is liable to pay compensation in accordance with this Act may not be redeemed by payment of a lump sum.
90. Weekly payments not assignable
(1) [Section 90 Subsection (1) amended by No. 16 of 1995, s. 62 ]A weekly payment is not capable of being assigned, charged, or taken in execution, and is not capable of passing to any other person by operation of law.(2) [Section 90 Subsection (2) amended by No. 16 of 1995, s. 62 ]No claim shall be set off against a weekly payment.
Division 2 - Payment of compensation money to persons entitled and to the Public Trustee
91. Payment of compensation money to person entitled and to Public Trustee
(1) [Section 91 Subsection (1) amended by No. 16 of 1995, s. 63 ]Except as provided in this section, all money payable by way of compensation under this Act in respect of death or in a lump sum as provided by section 71 or 72 shall be paid to the person entitled to that money.(1A) [Section 91 Subsection (1A) inserted by No. 16 of 1995, s. 63 ]Where a person to whom money is payable under subsection (1) is under a legal disability, the Tribunal is to determine to whom the money payable to that person is to be paid.(2) [Section 91 Subsection (2) substituted by No. 16 of 1995, s. 63 ]If the Tribunal has reasonable doubts about the nature of the dependency between the person under a legal disability and the legal guardian of that person, the Tribunal may determine that the money payable to the person under a legal disability is to be paid to the Public Trustee.(3) The Public Trustee –(a) shall invest, apply, or otherwise deal with the money paid to him under subsection (2) for the benefit of the person entitled to the money, in such manner and subject to such conditions as may be prescribed in the regulations; and(b) shall cause the income from any money so invested to be paid to, or for the benefit of, that person.(4) Where a worker does not leave any dependants, the payment of compensation under this Act in respect of his death may be paid to his legal personal representative, or, if there is no such representative, to the person to whom the expenses of medical attendance and his funeral are due.(5) An employer who pays to the person entitled or, where the person entitled is under a disability, to the Public Trustee compensation in respect of a worker's death is exonerated, to the extent of the compensation paid by him, from all liability under this Act in respect of the same subject matter.
92. Interest payable where delay in paying over certain compensation money
[Section 92 Subsection (1) amended by No. 16 of 1995, s. 64 ](1) [Section 92 Subsection (1) amended by No. 50 of 1992, s. 10 ]Where a person to whom money is payable under section 91 (1) or the Public Trustee considers that there has been unnecessary delay on the part of an employer in paying to that person or the Public Trustee, as required by section 91 (1) or (2) , any compensation referred to in that section, the person entitled or the Public Trustee may refer the matter to the Tribunal.(2) [Section 92 Subsection (2) amended by No. 16 of 1995, s. 64 ]Where, after hearing the matter referred to it under subsection (1) , the Tribunal is satisfied that there has been unreasonable or unnecessary delay on the part of an employer to whom the matter relates in paying to the person entitled or the Public Trustee any compensation referred to in section 91 and that neither the person entitled nor the Public Trustee has contributed to that delay, the Tribunal shall determine that the employer shall pay interest on the amount of the compensation –(a) for such period as the Tribunal is satisfied is the period of unreasonable or unnecessary delay in making the payment; and(b) at a rate equal to the Commonwealth long term bond rate plus 50% of that rate.(3) [Section 92 Subsection (3) omitted by No. 16 of 1995, s. 64 ]. . . . . . . .(4) Where an employer is required by a determination under subsection (2) to pay interest on the amount of any compensation, that interest shall be deemed to be compensation payable pursuant to the determination.(5) [Section 92 Subsection (5) inserted by No. 16 of 1995, s. 64 ]For the purposes of subsection (2) (b) , Commonwealth long term bond rate means the estimated closing yield at the end of the month, immediately preceding the date on which the Tribunal's determination under subsection (2) was made, for the 10 year bond rate as published by the Reserve Bank of Australia.
Division 3 - Power of Tribunal to vary certain determinations relating to payment of compensation
93. Power to vary certain determinations
[Part VII, Div. 3 Heading amended by No. 16 of 1995, s. 91 and Sched. 1 ](1) [Section 93 Subsection (1) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Where a dependant of a deceased worker is of the opinion that –a determination made by the Tribunal under section 68 as to the apportionment among the several dependants of the deceased worker of any compensation should be varied, that party may refer the matter to the Tribunal.(a) on account of variation of the circumstances of the various dependants of the deceased worker; or(b) for any other sufficient cause –(2) [Section 93 Subsection (2) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Where a matter is referred to the Tribunal under subsection (1) , the Tribunal may, where no sum has been paid to any of the dependants of the deceased worker in accordance with a determination made by it under section 68 , vary the determination formerly made by it in such manner as it considers just and reasonable in the circumstances.
PART VIII - Application to workers who are seamen
94. Interpretation of Part VIII
In this Part, unless the contrary intention appears –seaman means a worker who is employed in any capacity on board a Tasmanian ship by the owner or charterer of the ship;ship means any vessel or boat used in navigation;Tasmanian ship means a ship that –(a) is registered in this State;(b) is owned by a body corporate established under the laws of this State or having its principal office or place of business in this State or is in the possession of such a body corporate by virtue of a charter;(c) is owned by a person or body corporate whose principal office or place of business in respect of the management of the ship is in this State or is in the possession of such a person or body corporate by virtue of a charter; or(d) is owned by the Crown in respect of the Government of this State, or is in the possession of the Crown in that respect by virtue of a charter.
This Act applies in respect of a worker who is a seaman employed on a Tasmanian ship or a ship whose first port of clearance and whose destination are in this State.
96. Modifications to Act in case of injuries to seamen
(1) The application of this Act in respect of a seaman as provided in section 95 is subject to the following modifications:(a) the notice of injury and the claim for compensation may, except where the seaman injured is the master, be served on the master of a ship as if he were the employer;(b) in the case of the death of the seaman, the claim for compensation for the purposes of section 32 (1) (b) shall be made within 6 months after news of his death has been received by the claimant;(c) in the case of a ship lost with all hands, the claim for compensation for the purposes of section 32 (1) (b) shall be made within 18 months after the date on which the ship is deemed to have been lost with all hands.(2) Without prejudice to any other means of proof available –(a) a ship shall be deemed to have been lost with all hands if it is shown by some official return produced out of official custody or by other evidence that the ship on which the seaman in respect of whom the compensation is claimed was employed has, for a period of 12 months or longer before the institution of the proceedings, left a port of departure and has not been heard of within a period of 12 months of that departure; and(b) in the case of a ship lost with all hands, a duplicate agreement or list of the crew made out and produced by the proper officer is, if produced out of official custody, sufficient evidence in the absence of proof to the contrary, that the seamen named in the agreement or list as belonging to the ship were on board at the time of the loss.
PART IX - Insurance provisions
Division 1 - Compulsory insurance by employers
97. Obligation of employers to insure
(1) An employer who is not a self-insurer shall maintain in force with a licensed insurer a policy of insurance –(a) that indemnifies him in respect of the full amount of his liabilities to pay compensation under this Act;(b) that indemnifies him in respect of any other liabilities arising independently of this Act in respect of an injury suffered by a worker employed by him and in respect of which the employer is liable under section 25 to pay compensation; and(c) that indemnifies each person employed by him in respect of the liabilities incurred by that person in respect of any such injury as is referred to in paragraph (b) .(1A) [Section 97 Subsection (1A) inserted by No. 16 of 1995, s. 65 ]Subject to subsection (1C) , an employer is not to insure against liability arising from claims for compensation under this Act for weekly payments in respect of the first 5 working days of each injury suffered by a worker and the first $200 of any other benefits payable under this Act in respect of that injury.(1B) [Section 97 Subsection (1B) inserted by No. 16 of 1995, s. 65 ]An employer may increase the period referred to in subsection (1A) to a period not exceeding 30 working days.(1C) [Section 97 Subsection (1C) inserted by No. 16 of 1995, s. 65 ]The Board may grant a certificate allowing an employer to insure against liability arising from claims for compensation under this Act during all or part of the period referred to in subsection (1A) .(2) Notwithstanding anything in any law or rule of law to the contrary, where a policy of insurance entered into by any person purports to indemnify as mentioned in subsection (1) (c) any person employed by him, the insurer under that policy is liable to indemnify that person so employed in respect of any liability that the policy purports to cover.(3) [Section 97 Subsection (3) amended by No. 39 of 1988, s. 5 ][Section 97 Subsection (3) amended by No. 16 of 1995, s. 65 ]A policy of insurance which is required pursuant to subsection (1) to be maintained by an employer shall not be required to indemnify him or any person employed by him against any liability in respect of an injury suffered by a worker in an accident involving the use of a motor vehicle which occurs while the worker is travelling in either direction between his place of residence and his place of employment.(4) An employer who fails to comply with subsection (1) is guilty of an offence and is liable in a court of summary jurisdiction to a fine not exceeding 500 penalty units.(5) An authorized officer may, by notice in writing, require an employer –(a) to produce for inspection any policy of insurance that he is required to maintain under subsection (1) ; and(b) to furnish such particulars in relation to the policy of insurance as the authorized officer may consider necessary.(6) An employer who fails to comply with the requirements of a notice under subsection (5) within the time, and in the manner, specified in the notice is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units.(7) Every employer who applies to a licensed insurer to issue or renew a policy of insurance shall at the same time furnish the licensed insurer with –(a) a full and correct statement of all wages paid to workers in his employment during the period relevant to the determination of the premium payable by him for the policy of insurance;(b) a statement showing the trade, occupation, and calling of such workers; and(c) such other information as may be prescribed in the regulations.(8) An employer who fails to comply with subsection (7) is guilty of an offence and is liable on summary conviction to a fine not exceeding 100 penalty units.(9) This section does not oblige –to obtain such a policy of insurance as is mentioned in subsection (1) .(a) the Crown (whether in relation to this State or otherwise); or(b) [Section 97 Subsection (9) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] any Agency, within the meaning of the State Service Act 2000 , or any public statutory body constituted under any law of the Commonwealth or of any Territory of the Commonwealth or of any State other than this State–
97A. Disputes between insurers, &c.
[Section 97A Inserted by No. 16 of 1995, s. 66 ](1) If a dispute arises as to which of 2 or more insurers is liable to indemnify an employer in respect of a claim for compensation, any one of the insurers, the worker or the employer may refer the dispute to the Tribunal.(2) The Tribunal may determine which insurer is liable to indemnify the employer in respect of the claim for compensation.
Division 2 - Licensed insurers and self-insurers
98. Prohibition on providing certain insurance unless licensed
(1) An insurer shall not carry on in this State the business of insuring employers against the employers' liability to their workers under this Act unless that insurer is the holder of a licence.(2) An insurer who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 500 penalty units.
A licence while it is in force authorizes the insurer who holds the licence to carry on in this State the business of insuring employers against the employers' liability to their workers under this Act subject to and in accordance with the conditions (if any) to which the licence is subject.
100. Applications for licences
(1) An insurer who wishes to carry on in this State the business of insuring employers against the employers' liability to their workers under this Act may apply to the Board for a licence.(2) An application for a licence shall be –(a) in a form approved by the Board; and(b) accompanied by the prescribed fee (if any).
101. Granting, &c., of licences
[Section 101 Substituted by No. 16 of 1995, s. 67 ](1) The Board may, subject to subsection (2) , by notice in writing served on the insurer, grant or refuse to grant the licence.(2) The Board is not to grant a licence to an insurer unless it is satisfied that –(a) the insurer will provide the necessary insurance service, including the ability to meet time limits imposed by this Act; and(b) the insurer will set premiums which reflect –(i) the claims experience of an employer; and(ii) an employer's commitment to workplace health and safety; and(iii) an employer's agreement to provide suitable alternative duties to injured workers; and(c) the insurer is financially viable; and(d) the insurer will commit an appropriate level of resources to manage claims for compensation under this Act in a manner which furthers the objective of rehabilitating injured workers; and(e) the insurer will involve an employer in the management of claims for compensation under this Act; and(f) the insurer will provide the statistical and other information required or likely to be required under this Act; and(g) the insurer will meet such other criteria as may be prescribed.
(1) A licence is subject to such conditions as may be imposed by the Board –(a) on the granting of the licence; or(b) at any time during the currency of the licence.(2) Without limiting the generality of subsection (1) , a licence granted to a specialized insurer shall be subject to the condition that the specialized insurer shall insure only such classes of employers as are specified in the licence against the employers' liability to their workers under this Act.(3) The Board may, by notice served on a licensed insurer, impose conditions (or further conditions) to which the licence is to be subject or vary any conditions imposed on the licence by the Board and such conditions or variation shall, subject to section 112 (3) , take effect on such date as the Board specifies in the notice, being a date not less than 14 days after the service of the notice on the licensed insurer.(4) A condition to which a licence is subject has effect whether or not the condition is endorsed on the licence.(5) A licensed insurer who fails to comply with, or contravenes, any condition to which the licence is subject is guilty of an offence and is liable on summary conviction to a fine not exceeding 100 penalty units.
103. Licensed insurers not to refuse insurance
(1) A licensed insurer shall not, except with the consent of the Board, refuse to issue a policy of insurance to an employer or to renew a policy of insurance issued to an employer.(2) Without affecting the generality of subsection (1) , the Board may consent to any refusal referred to in that subsection in order that the licensed insurer does not contravene any condition of his licence.(3) This section does not apply –(a) to a specialized insurer; or(b) 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 a policy of insurance.(4) A licensed insurer who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 200 penalty units.
(1) [Section 104 Subsection (1) substituted by No. 48 of 1996, s. 16 ]An employer who wishes to self-insure against the liabilities referred to in section 97 may apply to the Board for a permit.(2) An application for a permit shall be –(a) in a form approved by the Board; and(b) accompanied by the prescribed fee (if any).
105. Granting, &c., of permits
(1) The Board may, in its absolute discretion, by notice in writing served on the employer grant or refuse to grant a permit to that employer.(2) Without limiting its discretion under subsection (1) , the Board shall, before granting or refusing to grant the permit, take into consideration –(a) the financial viability of the employer or arrangements made by the employer to enable the employer to meet his liability for the payment of compensation under this Act;(b) the employer's ability to provide the statistical and other information required or likely to be required under this Act; and(c) such other matters as may be prescribed.
[Section 106 Amended by No. 48 of 1996, s. 17 ]A permit while it is in force authorizes the employer who holds the permit to self-insure against the liabilities referred to in section 97 subject to and in accordance with the conditions to which the permit is subject.
(1) A permit is subject to such conditions as may be imposed by the Board –(a) on the granting of the permit; or(b) at any time during the currency of the permit.(2) The Board may, by notice served on a self-insurer, impose conditions (or further conditions) to which the permit is to be subject or vary any conditions imposed on the permit by the Board and any such conditions or variation shall, subject to section 112 (3) , take effect on such date as the Board specifies in the notice, being a date not less than 14 days after the service of the notice on the self-insurer.(3) A condition to which a permit is subject has effect whether or not the condition is endorsed on the permit.(4) A self-insurer who fails to comply with, or contravenes, any condition to which the permit is subject is guilty of an offence and is liable on summary conviction to a fine not exceeding 100 penalty units.
108. Renewal of licences and permits
(1) [Section 108 Subsection (1) amended by No. 16 of 1995, s. 68 ]Subject to this Division, a licence or permit shall remain in force for a period of 36 months or such lesser period as is specified in the licence or permit commencing on the day on which it is granted.(2) A licensed insurer or a self-insurer may, within the period of 60 days before the licence or permit held ceases to be in force, apply to the Board for the renewal of the licence or permit.(3) An application for the renewal of a licence or permit –(a) shall be in a form approved by the Board; and(b) shall be accompanied by the prescribed fee (if any).(4) The Board –(a) shall consider an application under subsection (2) as if it were an application for a licence or permit; and(b) may, in its absolute discretion, grant or refuse to grant the renewal of the licence or permit.(5) [Section 108 Subsection (5) amended by No. 16 of 1995, s. 68 ]Where an application for the renewal of a licence or permit is made before the date on which the licence or permit would, but for this subsection, have ceased to be in force (which date is, in this subsection, referred to as "the date of expiry") and –(a) the renewal is granted before the date of expiry – on the grant of renewal, the licence or permit shall be in force for the period of 36 months or such lesser period as is specified in the licence or permit commencing on the date of expiry; or(b) the renewal is not granted or not refused before the date of expiry and the application is not withdrawn before the date of expiry –(i) the licence or permit shall be deemed to continue in force on and from the date of expiry until the renewal is granted or the application is withdrawn, or, where the Board refuses to grant the renewal, the date on which that refusal takes effect, whichever first occurs; and(ii) on the grant of the renewal, the licence or permit shall be deemed to have taken effect on and from the date of expiry.(6) Where the renewal of a licence or permit is refused by the Board, the Board shall, by notice in writing served on the licensed insurer or self-insurer, inform that person of the refusal.(7) The refusal referred to in subsection (6) shall, subject to section 112 (3) , take effect on such date as the Board specifies in the notice, being a date not earlier than 14 days after the service of the notice on the licensed insurer or self-insurer.
109. Additional information to be supplied
(1) The Board may direct an insurer or employer who has made an application under section 100 or 104 , or a licensed insurer or self-insurer, to provide it with such information, and at such times, as it thinks fit relating to the matters referred to in section 101 (2) or 105 (2) or for the purposes of section 108 (4) .(2) A licensed insurer or self-insurer referred to in subsection (1) who refuses or fails to comply with a direction under that subsection is guilty of an offence and is liable on summary conviction to a fine not exceeding 150 penalty units.
Where the Board refuses under –it shall give to the insurer, employer, licensed insurer, or self-insurer, in writing, its reasons for so refusing.(a) section 101 to grant a licence to an insurer;(b) section 105 to grant a permit to an employer; or(c) section 108 to grant the renewal of a licence or permit –
111. Revocation or suspension of licences and permits
(1) [Section 111 Subsection (1) amended by No. 16 of 1995, s. 91 and Sched. 1 ]The Board may at any time, in its absolute discretion, by notice in writing served on a licensed insurer or self-insurer, revoke or suspend a licence or permit if it is satisfied –(a) that the grant or renewal of the licence or permit was obtained improperly;(b) that the licensed insurer or self-insurer has failed to comply with any provision of this Act and the failure constitutes a substantial breach of the requirements of this Act;(c) that the licensed insurer or self-insurer has been convicted of an offence against this Act;(d) in the case of a licensed insurer, that the licensed insurer has unreasonably failed, or unreasonably refused, to satisfy or comply with a determination made by the Tribunal in respect of an employer insured or indemnified by the licensed insurer against the liability of the employer under the determination;(e) in the case of a self-insurer, that the self-insurer has unreasonably failed, or unreasonably refused, to satisfy or comply with a determination made by the Tribunal;(f) that the conduct of the licensed insurer or self-insurer, his or its employees or officers, or the arrangement of his or its affairs has been such that, in the opinion of the Board, the Board should exercise its power under this subsection in relation to the licence or permit; or(g) that the licence or permit should be revoked or suspended in the public interest.(2) Without limiting the generality of subsection (1) , the powers conferred on the Board by that subsection may be exercised by it on the application of a licensed insurer or self-insurer.(3) A notice under subsection (1) shall be accompanied by a statement of the Board's reasons for revoking or suspending the licence or permit.(4) The revocation or suspension under this section of a licence or permit shall not –(a) annul a policy of insurance issued before the revocation; or(b) diminish or otherwise affect the liability of the insurer under a policy referred to in paragraph (a) or of an employer in relation to his status as a self-insurer before the revocation.(5) The revocation or suspension of a licence or permit shall, subject to section 112 (3) , take effect on such date as the Board specifies in the notice, being a date not earlier than 14 days after the service of the notice on the licensed insurer or self-insurer.
(1) [Section 112 Subsection (1) amended by No. 16 of 1995, s. 91 and Sched. 1 ]A licensed insurer or self-insurer who is aggrieved by –may appeal to the Tribunal.(a) the refusal of the Board to grant him or it a licence or permit;(b) the conditions to which a licence or permit initially granted to him or it is subject;(c) any conditions that the Board imposes on his or its licence or permit during the currency of the licence or permit;(d) the variation by the Board of any conditions to which his or its licence or permit is subject;(e) the refusal of the Board to renew a licence or permit held by him or it; or(f) the revocation or suspension by the Board of a licence or permit held by him or it –(2) An appeal under this section shall be instituted within a period of 14 days from –(a) in the case of an appeal against the refusal of the Board to grant a licence or permit, the service of a notice under section 101 (1) or 105 (1) , as the case may require;(b) in the case of an appeal against the conditions to which a licence or permit initially granted to a person is subject, the receipt of the licence or permit by that person;(c) in the case of an appeal against any conditions imposed on a licence or permit during the currency of the licence or permit or the variation of any conditions of the licence or permit, the receipt of a notice under section 102 or 107 ;(d) in the case of an appeal against the refusal of the Board to grant the renewal of a licence or permit, the service of a notice under section 108 (6) ; and(e) in the case of an appeal against the revocation or suspension of a licence or permit, the service of a notice under section 111 (1) .(3) [Section 112 Subsection (3) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Where an appeal is brought under this section in respect of –the refusal, imposition of conditions, variation, revocation, or suspension shall not have effect until the determination or abandonment of the appeal or until such later date as the Tribunal may determine.(a) the refusal of the Board to grant the renewal of a licence or permit;(b) the conditions imposed on a licence or permit during the currency of the licence or permit or the variation of any conditions of a licence or permit; or(c) the revocation or suspension of a licence or permit –(4) [Section 112 Subsection (4) amended by No. 16 of 1995, s. 91 and Sched. 1 ]On an appeal under this section, the Tribunal (unless it dismisses the appeal) may, by order, quash the decision of the Board and direct the Board to take such action as it considers necessary in the matter to which the appeal relates.(5) [Section 112 Subsection (5) amended by No. 16 of 1995, s. 91 and Sched. 1 ]The Board shall comply with any order of the Tribunal under subsection (4) .(6) Subject to this section, an appeal under this section shall be instituted, heard, and determined as prescribed in the regulations.(7) [Section 112 Subsection (7) amended by No. 16 of 1995, s. 91 and Sched. 1 ]The decision of the Tribunal on the hearing of an appeal under this section is final, and, subject to section 63 , is not subject to appeal.
113. Publication of grant of, refusal to renew, or revocation or suspension of, licences and permits
Where –the Board shall, as soon as practicable cause to be published in the Gazette and in a newspaper circulating throughout the State notice of that fact.(a) a licence or permit is granted;(b) the renewal of a licence or permit is refused; or(c) a licence or permit is revoked or suspended –
Division 3 - Returns by licensed insurers and self-insurers
114. Returns by licensed insurers and self-insurers
(1) Every licensed insurer and self-insurer shall at such times and in such manner as may be prescribed in the regulations furnish the Board with such returns as may be so prescribed with respect to such matters as may be so prescribed.(2) A licensed insurer or self-insurer –is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units.(a) who fails to furnish a return that the licensed insurer or self-insurer is required to furnish under this section;(b) who fails to furnish such a return within the time prescribed under this section; or(c) who, in such a return, makes a statement that is false or misleading in a material particular –(3) Every licensed insurer and self-insurer shall keep such records as may be prescribed in the regulations.(4) A licensed insurer or self-insurer who fails to comply with subsection (3) is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units.
Division 4 - . . . . . . . .[Part IX, Div. 4 Repealed by No. 16 of 1995, s. 69 ][Section 115 Subsection (2) amended by No. 27 of 1993, sched. 3 ][Section 115 Repealed by No. 16 of 1995, s. 69 ]. . . . . . . . [Section 116 Repealed by No. 16 of 1995, s. 69 ]. . . . . . . . [Section 117 Repealed by No. 16 of 1995, s. 69 ]. . . . . . . . [Section 118 Repealed by No. 16 of 1995, s. 69 ]. . . . . . . . [Section 119 Repealed by No. 16 of 1995, s. 69 ]. . . . . . . . [Section 120 Repealed by No. 16 of 1995, s. 69 ]. . . . . . . .
Division 5 - Nominal Insurer
121. Establishment of Nominal Insurer
(1) There is established by this Act a body to be known as the Nominal Insurer.(2) The Nominal Insurer –(a) is a body corporate with perpetual succession;(b) shall have a common seal;(c) may take proceedings, and be proceeded against, in its corporate name; and(d) may do and be subject to all other things that corporations may by law do and be subject to and that are necessary for, or incidental to, the purpose for which it was constituted.(3) All courts, judges and persons acting judicially shall take judicial notice of the common seal of the Nominal Insurer affixed to a document and shall presume that it was duly affixed.
122. Composition of Nominal Insurer
(1) [Section 122 Subsection (1) substituted by No. 27 of 1993, s. 35 and Sched. 3 ]The Nominal Insurer consists of 4 members appointed by the Minister after consultation with licensed insurers and self-insurers, one of whom the Minister must appoint as chairperson.(2) [Section 122 Subsection (2) omitted by No. 27 of 1993, s. 35 and Sched. 3 ]. . . . . . . .(3) Schedule 6 has effect with respect to the membership and meetings of the Nominal Insurer.
123. Powers and functions of Nominal Insurer
The Nominal Insurer shall perform such functions and may exercise such powers as are imposed or conferred on it by or under this Act.
(1) A member of the Nominal Insurer who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Nominal Insurer (otherwise than as a member of, and in common with the other members of, an incorporated company consisting of not less than 25 persons and of which he is not a director) shall, as soon as possible after the relevant facts have come to his knowledge, disclose the nature of his interest at a meeting of the Nominal Insurer.(2) A disclosure under subsection (1) shall be recorded in the minutes of the meeting of the Nominal Insurer and the member shall not be present during, or take part in, any deliberation or decision of the Nominal Insurer in relation to that matter.
125. Delegation by Nominal Insurer
(1) The Nominal Insurer may, by instrument in writing under its common seal, delegate to a person specified in the instrument the performance or exercise of such of its functions and powers under this Act or any other Act (other than this power of delegation) as are specified in the instrument, and may, by instrument in writing under its common seal, revoke wholly or in part any such delegation.(2) A function or power the performance or exercise of which has been delegated under this section may, while the delegation remains unrevoked, be performed or exercised from time to time in accordance with the terms of the delegation.(3) A delegation under this section may be made subject to such conditions or limitations as to the performance or exercise of any of the functions or powers delegated, or as to time or circumstance, as are specified in the instrument.(4) Notwithstanding any delegation under this section, the Nominal Insurer may continue to perform or exercise all or any of the functions or powers delegated.(5) Any act or thing done by, or to, a delegate of the Nominal Insurer while acting in the exercise of a delegation under this section shall have the same force and effect as if the act or thing had been done by, or to, the Nominal Insurer and shall be deemed to have been done by, or to, the Nominal Insurer.(6) An instrument purporting to be signed by a delegate of the Nominal Insurer in his capacity as such a delegate shall in all courts and before all persons acting judicially be received in evidence as if it were an instrument executed by the Nominal Insurer under seal and, until the contrary is proved, shall be deemed to be an instrument signed by a delegate of the Nominal Insurer under this section.(7) Where the exercise of a power by the Nominal Insurer is dependent on the opinion or belief of the Nominal Insurer, a delegate of the Nominal Insurer under this section may, in exercising that power, act on his own opinion or belief.
126. When proceedings may be taken against the Nominal Insurer
(1) Where –the same claims, whether by way of legal proceedings or not, may be made against the Nominal Insurer in respect of any liability in respect of which such a policy is required under section 97 (1) to be maintained by the employer, and the same judgment may be obtained against the Nominal Insurer, as could, apart from subsection (3) , have been made or obtained against the person by whom the liability was incurred.(a) an employer –(i) has not obtained from a licensed insurer such a policy of insurance as is referred to in section 97 (1) or has failed to maintain in force any such policy so obtained by him;(ii) has applied to take, or takes, advantage of any law relating to bankruptcy, or has compounded, or entered into an arrangement, with his creditors; or(iii) has left the State and his whereabouts are unknown;(b) an employer, or the licensed insurer from whom or from which an employer obtained such a policy, is a body corporate and –(i) the winding-up of the body corporate has commenced; or(ii) a receiver or manager of the property of the body corporate has been appointed, or the body corporate has been placed under official management, under the provisions of the Companies (Tasmania) Code or any corresponding previous enactment; or(c) for any other reason there are reasonable grounds for believing that an employer or a licensed insurer from whom or from which he has obtained such a policy is, or is likely to be, unable to discharge in full any liability in respect of which such a policy is required under section 97 (1) to be maintained by the employer –(2) Where –the same claims, whether by way of legal proceedings or not, may be made against the Nominal Insurer in respect of any liability in respect of which he would have been required under section 97 (1) to maintain a policy of insurance and the same judgment may be obtained against the Nominal Insurer, as could, apart from subsection (3) , have been made or obtained against the person by whom the liability was incurred.(a) a self-insurer –(i) has applied to take, or takes, advantage of any law relating to bankruptcy, or has compounded, or entered into an arrangement, with his creditors; or(ii) has left the State and his whereabouts are unknown;(b) a self-insurer is a body corporate and –(i) the winding-up of the body corporate has commenced; or(ii) a receiver or manager of the property of the body corporate has been appointed, or the body corporate has been placed under official management, under the provisions of the Companies (Tasmania) Code or any corresponding previous enactment; or(c) for any other reason there are reasonable grounds for believing that a self-insurer is, or is likely to be, unable to discharge in full any liability in respect of which, but for the fact that that person was a self-insurer, he would have been required under section 97 (1) to maintain a policy of insurance referred to in that section –(3) Where, in respect of such a liability as is referred to in section 97 (1) (c) , the same claims may be made under subsection (1) or (2) against the Nominal Insurer as could, but for this subsection, have been made against the person by whom the liability was incurred, those claims shall not be made against that person.
127. Order or judgment against Nominal Insurer
(1) [Section 127 Subsection (1) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Where, in respect of a liability in respect of which an employer is required under section 97 (1) to maintain a policy of insurance –(a) an order has been made by the Tribunal in respect of that liability; or(b) judgment is obtained in any court in respect of that liability –and the order is not complied with or the judgment has not been satisfied within the period of 28 days after the making of the order or after the judgment is obtained –(c) the Tribunal may, on the application of the person in whose favour the order was made, order that the order be complied with by the Nominal Insurer; or(d) the court in which the judgment was obtained may direct that that judgment be entered against the Nominal Insurer.(2) For the purposes of subsection (1) , where an order is not enforced, or execution of a judgment is stayed, pending appeal, the time during which it is not so enforced or stayed shall be excluded in calculating the period referred to in that subsection.(3) [Section 127 Subsection (3) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Where a claim is made for the recovery of compensation or damages and the person against whom the claim is made knows or has reason to believe that such circumstances exist as would, under section 126 , entitle a claim for that compensation or those damages to be made against the Nominal Insurer, that person –(a) shall, if no proceedings have been instituted in respect of the claim, notify the Nominal Insurer in writing within 48 hours after the receipt of the claim by the person and shall allow the Nominal Insurer to take over the conduct of all negotiations in respect of the claim and its defence in any subsequent proceedings; or(b) shall, if proceedings have been instituted in respect of the claim, within 48 hours after –(i) notice of the application to the Tribunal has been served on him by the applicant; or(ii) filing a notice of defence, in any other case, serve a copy of that notice on the Nominal Insurer.(4) [Section 127 Subsection (4) amended by No. 43 of 1993, s. 22 ][Section 127 Subsection (4) amended by No. 16 of 1995, s. 91 and Sched. 1 ]Where the Nominal Insurer is served with a copy of a notice pursuant to subsection (3) or has reasonable grounds for believing –the Nominal Insurer may apply to the Tribunal or court to be made a party to the proceedings and to act for the person against whom the claim for compensation has been made or take over the conduct of the defence, as the case may be.(a) that the Tribunal may, in the proceedings to which the notice relates, make an order under subsection (1) (c) ; or(b) that judgment in those proceedings may be entered against it under subsection (1) (d) –(5) [Section 127 Subsection (5) amended by No. 16 of 1995, s. 91 and Sched. 1 ]On an application under subsection (4) to the Tribunal or a court, the Tribunal or court may order that the Nominal Insurer be made a party to the proceedings and that, to such extent and upon and subject to such conditions as the Tribunal or court may determine, the Nominal Insurer shall act for the person against whom the claim for compensation has been made or the conduct of the defence shall be taken over by the Nominal Insurer.(6) [Section 127 Subsection (6) amended by No. 16 of 1995, s. 91 and Sched. 1 ]In any proceedings to which this section relates –unless, within the prescribed time, a copy of the application or summons has been served, by or on behalf of the applicant or plaintiff, on the Nominal Insurer.(a) an order shall not be made by the Tribunal in the absence of the person against whom the claim for compensation has been made; or(b) judgment by default shall not be entered for the plaintiff –(7) [Section 127 Subsection (7) amended by No. 16 of 1995, s. 91 and Sched. 1 ]If in any proceedings to which this section relates –the Nominal Insurer may, on receiving a copy of the application or summons, apply to the Tribunal or court to be made a party to the proceedings and to act for the person against whom the claim for compensation has been made or, as the case may be, to take over the conduct of the defence, and the provisions of subsection (5) apply to and in relation to an application under this subsection as if it were an application under subsection (4) .(a) the person against whom a claim for compensation has been made has not, in the case of proceedings before the Tribunal, indicated his intention to appear at those proceedings; or(b) the defendant has not, in any other case, filed a notice of defence to the summons –(8) [Section 127 Subsection (8) amended by No. 16 of 1995, s. 91 and Sched. 1 ]The right conferred by subsection (1) on –(a) a person in whose favour an order is made by the Tribunal pursuant to subsection (1) (a) ; or(b) a judgment creditor to have judgment entered against the Nominal Insurer –is not affected or prejudiced by any non-compliance with any of the provisions of subsections (3) to (6) by –(c) in the case of proceedings heard by the Tribunal, the person referred to in paragraph (a) or the other party to the proceedings; or(d) in the case of any other proceedings, the judgment creditor or judgment debtor or by the solicitor of either of them.
[Section 127A Inserted by No. 43 of 1993, s. 23 ](1) There is established a fund to be known as the Nominal Insurer Fund.(2) There is to be paid into the Nominal Insurer Fund –(a) money received by the Nominal Insurer from licensed insurers and self-insurers under section 128 ; and(b) any other money received by the Nominal Insurer.(3) There is to be paid from the Nominal Insurer Fund –(a) all amounts required to be paid by the Nominal Insurer under this Act in satisfaction of any claim or order made, or judgment obtained, against the Nominal Insurer pursuant to this Act or the amount of costs incurred by the Nominal Insurer in relation to any claim or order made, or the proceedings in which any judgment is obtained, against the Nominal Insurer pursuant to this Act; and(b) all amounts required to meet the costs and expenses incurred by the Nominal Insurer in or in connection with the performance or exercise of the powers and functions imposed or conferred on the Nominal Insurer by or under this Act.
128. Payments to Nominal Insurer
(1) [Section 128 Subsection (1) omitted by No. 43 of 1993, s. 24 ]. . . . . . . .(2) [Section 128 Subsection (2) amended by No. 27 of 1993, s. 35 and Sched. 3 ][Section 128 Subsection (2) amended by No. 43 of 1993, s. 24 ]In order to ensure that there is sufficient money in the Nominal Insurer Fund to enable payments to be made under section 127A (3) (a) , licensed insurers and self-insurers must pay to the Nominal Insurer amounts of money in such proportion as the Nominal Insurer may from time to time determine having regard to, so far as is practicable –(a) in the case of licensed insurers, the premium income in respect of policies of insurance under this Act received by each licensed insurer during the preceding financial year; and(b) in the case of self-insurers, the premium that has been determined by the Board for the purposes of the definition of notional premium payments in section 144 (1) .(3) [Section 128 Subsection (3) substituted by No. 43 of 1993, s. 24 ]Licensed insurers and self-insurers must pay to the Nominal Insurer, in such proportion as the Nominal Insurer determines under subsection (2) , such additional amounts as the Nominal Insurer may require from time to time to enable the Nominal Insurer to meet any costs and expenses incurred by the Nominal Insurer in or in connection with the performance or exercise of the powers and functions imposed or conferred on the Nominal Insurer by or under this Act.(4) For the purpose of making a determination under subsection (2) , the Nominal Insurer may rely upon information that is required under the regulations to be provided to the Nominal Insurer by licensed insurers and self-insurers for the purpose of enabling such a determination to be made.(5) [Section 128 Subsection (5) amended by No. 43 of 1993, s. 24 ]When the Nominal Insurer makes a determination under subsection (2) , it shall give notice to each licensed insurer and self-insurer of the sum it has determined as being payable by that licensed insurer or self-insurer and shall, in that notice, require the licensed insurer or self-insurer to pay that sum to the Nominal Insurer within such time as is specified in that behalf in the notice.(6) If a licensed insurer or self-insurer fails to pay to the Nominal Insurer the sum specified in a notice given to the licensed insurer or self-insurer pursuant to subsection (5) within the time specified in that behalf in the notice, the licensed insurer or self-insurer is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units.(7) Where a licensed insurer or self-insurer is convicted of an offence against this section the court by whom the licensed insurer or self-insurer is convicted may, in addition to imposing a penalty for the offence, order the licensed insurer or self-insurer to pay to the Nominal Insurer the sum in respect of the non-payment of which the offence was committed, or such portion of that sum as may remain unpaid at the date of the conviction.(8) An order under subsection (7) for the payment of a sum to the Nominal Insurer may be enforced in the same manner as a summary conviction or order under the Justices Act 1959 for the payment of a sum of money, and the provisions of that Act, with the necessary adaptations, apply to such an order accordingly.
129. Right of Nominal Insurer to recover reinsurance money
Where a licensed insurer is insured under a contract of reinsurance against liability in respect of a policy of insurance or indemnity issued by the insurer under section 97 and any such liability is incurred by the licensed insurer, then, if that insurer, being a company, is wound up –(a) the Nominal Insurer shall be entitled to the benefit of, and may exercise, the rights and powers of the licensed insurer under that contract of reinsurance so as to enable the Nominal Insurer to recover from the reinsurer and retain the amount due under that contract of reinsurance; and(b) to the extent that recovery is not made from a reinsurer pursuant to paragraph (a) , the Nominal Insurer shall be a creditor of, and have the same rights against, the licensed insurer as the employer concerned would have had if the indemnity provided by the policy of insurance had not been met.
130. Recovery by Nominal Insurer from employer, &c.
[Section 130 Amended by No. 43 of 1993, s. 25 ]An amount that is paid by the Nominal Insurer in satisfaction of a claim, an order made, or judgment obtained, against the Nominal Insurer pursuant to this Act, together with its costs of and incidental to the claim or order or the proceedings in which the judgment was obtained, may be recovered by the Nominal Insurer as a debt due to it by action in a court of competent jurisdiction against –(a) the employer of the worker by or on behalf of whom, or by or on behalf of whose dependants, the claim or order was made or the proceedings were instituted, except where the employer has maintained with a licensed insurer a policy of insurance or indemnity under section 97 ; or(b) the licensed insurer from which that employer obtained a policy of insurance that was in force on the date when the injury, by reason of which the claim or order arose or in respect of which the judgment was obtained, was sustained; or(c) any person against whom that employer or licensed insurer has a right of indemnity or contribution, whether under this Act or any other Act or at common law.
131. Employer to give information and assistance to Nominal Insurer
(1) For the purpose of the performance of its functions and the exercise of its powers under this Act, the Nominal Insurer may, by notice in writing served on an employer, require the employer to –(a) give it such information and assistance as the Nominal Insurer considers necessary;(b) furnish to it such documents in the employer's possession as the Nominal Insurer considers necessary; and(c) execute such documents as it is necessary for the employer to execute to enable the Nominal Insurer to exercise those powers and perform those functions.(2) An employer who fails to comply with a requirement of the Nominal Insurer made under subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units.
PART X - Concurrent rights to compensation and damages
In this Part, unless the contrary intention appears –compensation, used in relation to an injury, means any compensation or any such expenses as are referred to in section 75 payable in respect of that injury under this Act;damages means damages recoverable (whether by virtue of an enactment or otherwise) in respect of any civil liability in the employer, however arising;employer, used in relation to an injury suffered by a worker, includes any person who, in respect of that injury, is liable, under section 29 , to pay compensation or to indemnify any other person for any compensation paid by that other person.
133. Effect of compensation on worker's right to damages
(1) Except as otherwise provided in this Part, the payment or an entitlement to the payment of compensation in respect of an injury does not affect the right to obtain damages in respect of that injury, but, where a liability has been incurred (whether by the employer or any other person) for the payment of damages to a worker in respect of an injury, the payment to or to the benefit of that worker of compensation in respect of that injury shall, so far as it extends, be regarded also as a payment in or towards the discharge of that liability, and the amount of the damages shall be reduced accordingly.(2) The subsistence of a right of a worker or a dependant of a deceased worker to damages in respect of an injury, or the taking of proceedings to establish any such right or for the recovery of any such damages, does not prejudice or affect his right to compensation in respect of that injury, but where a worker or a dependant of a deceased worker has obtained judgment (whether against his employer or any other person) for damages in respect of an injury or has accepted any money paid into court in satisfaction of a claim for damages, his right to any payments by way of compensation that have not been determined before the date of the judgment, or the date of his acceptance of money paid into court, is extinguished.(3) The settlement by a worker or a dependant of a deceased worker of a claim for damages in respect of an injury, if by that settlement he agrees that all his further claims to compensation in respect of that injury are extinguished, has, for the purposes of subsection (2) , the like effect as a judgment obtained by that worker or that dependant for those damages.
134. Right of employer to contribution or indemnity from third parties
(1) Subject to this section, where an injury for which compensation is payable to a worker is caused under circumstances creating a liability in some person other than the employer to pay damages in respect of that injury to that worker, the employer may recover indemnity against that person in respect of the compensation paid by the employer to the worker in respect of that injury.(2) Subject to subsection (3) , where the circumstances referred to in subsection (1) create the liability to pay damages both in the employer and some other person, the employer has the like right of indemnity or contribution against that other person in respect of the compensation paid by the employer as if that compensation were part of those damages.(3) Where a worker is, by virtue of section 4 of the Tortfeasors and Contributory Negligence Act 1954 , given a right to reduced damages in respect of an injury, the amount recoverable by the employer under the foregoing provisions of this section by way of contribution or indemnity is reduced in the like proportion.
135. Limitation on civil proceedings when payment of compensation accepted
(1) Where any payment of compensation under this Act in respect of an injury has been accepted by a worker, no proceedings shall be commenced by him, after the expiration of a period of 3 years after the date on which the injury was suffered, against the employer to recover damages in respect of that injury.(2) Notwithstanding anything in subsection (1) , on application made in that behalf by a worker, the Supreme Court or a judge in chambers may, after giving the employer an opportunity of being heard, extend the period referred to in subsection (1) by such further period, not exceeding 3 years, as the Court or judge thinks necessary.(3) The powers conferred on the Supreme Court or a judge by subsection (2) may be exercised notwithstanding that the period mentioned in subsection (1) may have expired.
136. Application to bring action on
(1) Where a worker has accepted the payment of compensation in respect of an injury, the employer may, not sooner than 12 months after the date on which the worker first received payment of compensation in respect of that injury, serve on the worker a notice in writing requiring the worker, not later than 42 days after service of the notice, to commence proceedings against the employer to recover damages in respect of that injury and, if the worker within that period does not commence those proceedings, the employer may apply to the Supreme Court or a judge in chambers for an order that the worker commence proceedings within whatever period that the Court or judge may direct.(2) Upon hearing an application under subsection (1) , the Supreme Court or judge in chambers may make an order –and may make any other order and give other directions.(a) fixing a time within which proceedings to recover damages shall be commenced by the worker; or(b) adjourning the application –(i) for a fixed period, or indefinitely (with liberty to the employer to apply); and(ii) on such terms and conditions as the Court or judge thinks fit –(3) Where, before the end of the time fixed by the Supreme Court or a judge in chambers in accordance with subsection (2) (a) , the worker files an application for an extension of that time, the Supreme Court or judge may order an extension.(4) Upon the hearing of an application adjourned pursuant to subsection (2) (b) , the Supreme Court or a judge in chambers may make any order under subsection (2) in relation to that application.(5) Where a worker does not commence proceedings against an employer to recover damages in respect of an injury, within –any right of action of the worker to recover damages in respect of that injury is, without affecting his right to compensation under this Act, forever barred and extinguished.(a) a time fixed by the Supreme Court or a judge in chambers in accordance with subsection (2) (a) ; or(b) any extension of that time granted under subsection (3) –
137. Weekly payments to be continued during proceedings for damages
Subject to section 89 , where a worker who is entitled under this Act to weekly payments during his incapacity takes proceedings independently of this Act for damages for the injury in respect of which he is entitled to receive those weekly payments, his employer shall, pending the determination of those proceedings, pay or, as the case requires, continue to pay to the worker all such weekly payments to which the worker is so entitled as if those proceedings had not been taken.
138. Proceedings by dependants to be taken jointly
[Section 138 Amended by No. 16 of 1995, s. 91 and Sched. 1 ]Where the dependants of a worker are entitled to compensation in respect of an injury resulting in his death, proceedings in respect of that compensation or for the payment of damages in respect of that injury shall, except with the leave of the Tribunal, be brought jointly by all those dependants.
PART XI - Rehabilitation
138A. Position to be held open
[Section 138A Inserted by No. 16 of 1995, s. 70 ](1) If a worker is incapacitated by reason of an injury in respect of which an employer is liable to pay compensation in accordance with this Act, the employer must, for a period of 12 months following the day on which the worker became incapacitated, make available to the worker the employment in respect of which the worker was engaged immediately before becoming incapacitated.Penalty: Fine not exceeding 100 penalty units.(2) Nothing in subsection (1) requires the employer to make the employment, in respect of which the worker was engaged immediately before becoming incapacitated, available to the worker if the reason for the employment no longer exists or it is not reasonably practicable to make that employment available to the worker.
138B. Employer to provide suitable duties after injury
[Section 138B Inserted by No. 16 of 1995, s. 70 ](1) If a worker is incapacitated by reason of an injury in respect of which an employer is liable to pay compensation in accordance with this Act, the employer must, for the period of 12 months following the day on which the worker became incapacitated, provide suitable alternative duties for the worker.Penalty: Fine not exceeding 100 penalty units.(2) Nothing in subsection (1) requires the employer to provide suitable alternative duties for the worker if it is not reasonably practicable for the employer to make work available for the worker which the worker could reasonably be expected to perform.
[Section 139 Substituted by No. 16 of 1995, s. 71 ](1) If a worker is totally or partially incapacitated by reason of an injury in respect of which an employer is liable to pay compensation in accordance with this Act and the period of incapacity exceeds the period of 14 days, the employer must as soon as practicable but not later than 5 days from the expiration of that period prepare a return-to-work plan for the worker in consultation with the worker.Penalty: Fine not exceeding 100 penalty units.(2) A return-to-work plan is to include –(a) the name of the injured worker; and(b) an estimate of the date that the injured worker should be fit to return to work; and(c) an offer of suitable alternative duties in accordance with section 138B ; and(d) the steps to be taken to facilitate the worker's return to work; and(e) such other matters as may be prescribed.
140. Power of Board to obtain information, &c.
The Board may make such inquiries and obtain such information as it considers appropriate regarding a worker's injury, his incapacity, the prognosis in respect of his injury or incapacity, and any rehabilitation programme or treatment being undertaken by the worker, proposed to be undertaken by the worker, or considered appropriate by the employer of the worker or a licensed insurer or self-insurer to be provided for the worker.[Section 141 Repealed by No. 16 of 1995, s. 72 ]. . . . . . . .
142. Power of Board with respect to rehabilitation programs, &c.
(1) [Section 142 Subsection (1) amended by No. 16 of 1995, s. 73 ]The Board may take such action as it considers necessary to ensure that appropriate and effective rehabilitation programs are provided for workers in respect of whom a return-to-work plan is prepared under section 139 .(2) [Section 142 Subsection (2) substituted by No. 16 of 1995, s. 73 ]The Board, if it considers that appropriate or effective rehabilitation measures are not being taken in respect of a worker for whom a return-to-work plan is or should have been prepared under section 139 , may, by notice in writing served on an employer, direct the employer to prepare a return-to-work plan or a modified return-to-work plan or to take such action or adopt or provide such rehabilitation programs as the Board considers necessary.(3) [Section 142 Subsection (3) substituted by No. 16 of 1995, s. 73 ]An employer who has been given a direction under subsection (2) must comply with that direction.Penalty: Fine not exceeding 100 penalty units.(4) [Section 142 Subsection (4) inserted by No. 16 of 1995, s. 73 ]An employer who has been given a direction under subsection (2) may, within 14 days of being served with that direction, refer to the Tribunal for determination the question as to whether or not the return-to-work plan which the employer is directed to prepare in accordance with section 139 or the action which the employer is directed to take or the rehabilitation program which the employer is directed to adopt or provide is reasonable or appropriate.(5) [Section 142 Subsection (5) inserted by No. 16 of 1995, s. 73 ]If a question is referred to the Tribunal under subsection (4) , the notice in respect of which the question is referred is of no effect pending the determination of the question.(6) [Section 142 Subsection (6) inserted by No. 16 of 1995, s. 73 ]For the purposes of subsection (3) , an employer is taken to have been given a direction if the notice in relation to the direction was served on a person referred to in section 33 (1) (b) .
[Section 143 Substituted by No. 16 of 1995, s. 74 ](1) An employer who employs more than 20 workers must prepare a rehabilitation policy in accordance with criteria approved by the Board and published in the Gazette.Penalty: Fine not exceeding 50 penalty units.(2) An employer to whom subsection (1) applies must display the rehabilitation policy in a prominent place at each workplace under the employer's control.Penalty: Fine not exceeding 20 penalty units.
PART XII - Workers Rehabilitation and Compensation Fund
144. Interpretation of Part XII
(1) [Section 144 Subsection (1) amended by No. 27 of 1993, s. 35 and Sched. 3 ][Section 144 Subsection (1) amended by No. 16 of 1995, s. 75 ]In this Part –notional premium payments, in relation to the contribution payable by a self-insurer under this Part for any period during a financial year, means a reasonable premium that the Board has determined would have been payable by the self-insurer, in respect of the preceding financial year or the part of that year during which he was a self-insurer, for a policy of insurance in accordance with section 97 (1) ;premium income, in relation to the contribution payable by a licensed insurer under this Part for a financial year, means the amount received by the licensed insurer as premiums in respect of policies of insurance issued or renewed by the licensed insurer during that financial year in accordance with section 97 (1) .(2) [Section 144 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 144 Subsection (2) amended by No. 16 of 1995, s. 75 ]For the purposes of this Part, the Crown in the right of this State, including an Agency, within the meaning of the State Service Act 2000 , is deemed to be a self-insurer.
145. Establishment of Workers Rehabilitation and Compensation Fund
(1) [Section 145 Subsection (1) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 145 Subsection (1) amended by No. 16 of 1995, s. 76 ]There shall be established by the Treasurer a fund to be known as the Workers Rehabilitation and Compensation Fund.(2) There shall be paid into the Fund –(a) money paid by licensed insurers and self-insurers under this Part; and(b) all other money received by the Board.(3) [Section 145 Subsection (3) substituted by No. 16 of 1995, s. 76 ]There is to be paid from the Fund –(a) all money required for the payment or discharge of the expenses, charges and obligations incurred or undertaken by the Board in the performance of its functions and the exercise of its powers; and(b) all money required for the administration of this Act; and(c) payments required to be made by the Board to the Appeal Costs Fund under the Appeal Costs Fund Act 1968 in respect of disputed claims for compensation referred to the Tribunal; and(d) all money required in connection with the operation of the second injury scheme; and(e) all money required for such other purposes associated with workers compensation, occupational health and safety or rehabilitation as may be prescribed in the regulations.
146. Assessment by Board of amount to be contributed to Fund
[Section 146 Amended by No. 16 of 1995, s. 77 ]The Board shall, as soon as practicable in respect of each financial year –(a) make an estimate of the total of the amounts already applied, and the amounts to be applied, from the Fund during that financial year;(b) make an estimate of the amounts required to be applied to meet expenditure from the Fund in the following financial year, and specify the purposes for which such amounts are required;(c) make an estimate of the total amounts (including the amounts already received) to be received into the Fund during that financial year otherwise than by way of contributions in respect of that financial year from licensed insurers and self-insurers under this Part;(d) determine the total amount to be contributed to the Fund in respect of that financial year by licensed insurers and self-insurers under this Part.(e) . . . . . . . .
147. Contributions to Fund by licensed insurers and self-insurers
(1) Each licensed insurer and self-insurer shall pay to the Board the contributions prescribed by this section for payment into the Fund.(2) The contribution to be paid by a licensed insurer in respect of each financial year is an amount equal to the percentage, determined by the Minister on the recommendation of the Board, of the premium income of the licensed insurer in respect of that financial year.(3) The contribution to be paid by a self-insurer, in respect of each financial year (being a financial year during the whole or part of which the person was a self-insurer) is an amount equal to the percentage determined by the Minister on the recommendation of the Board of the notional premium payments of the self-insurer during the relevant period when the person was a self-insurer.(4) The percentage determined by the Minister pursuant to subsections (2) and (3) –(a) shall be such as will be sufficient to yield the total amount to be contributed to the Fund by licensed insurers and self-insurers in respect of the relevant financial year as determined pursuant to section 146 ; and(b) shall be the same percentage for all licensed insurers and for all self-insurers.(5) A contribution by a licensed insurer is payable at such times and in respect of premium income received during such periods as may be determined by the Board and notified to the licensed insurer.(6) A contribution by a self-insurer is payable in such instalments and at such times as may be determined by the Board and notified to the self-insurer.(7) [Section 147 Subsection (7) amended by No. 16 of 1995, s. 78 ]If a contribution payable by a licensed insurer or a self-insurer has not been paid within the time prescribed by or under this section –(a) the licensed insurer or self-insurer is guilty of an offence and liable on summary conviction to a fine not exceeding 100 penalty units; and(b) the amount of that contribution together with interest calculated at the rate referred to in section 92 (2) (b) may be recovered by the Board as a debt due to it in any court of competent jurisdiction.(8) Subject to subsection (4) , more than one percentage may be determined by the Minister for different portions of a financial year for the purposes of subsection (2) or (3) .(9) A certificate executed by the Board as to the amount of a contribution payable under this section by a licensed insurer or self-insurer specified in the certificate and the due date for payment is (without proof of its execution by the Board) admissible in proceedings under this section and is evidence of the matters specified in the certificate.(10) The obligation of a person, being a self-insurer, to make a contribution under this section in respect of any period during which the person was a self-insurer does not cease merely because the person subsequently ceases to be a self-insurer.
148. Temporary advances to Fund
(1) Where, at any time, the amount of the Fund is insufficient to meet a payment required under section 145 (3) to be made from the Fund, the Treasurer may make temporary advances to the Fund from the Consolidated Fund.(2) The Consolidated Fund is appropriated to the extent necessary for the purpose of subsection (1) .(3) Where a temporary advance is made under this section from the Consolidated Fund, the amount of the advance, together with interest at such rate as the Treasurer determines, shall be a first charge on the Fund and shall be paid into the Consolidated Fund progressively as money is paid into the Fund.(4) The amount required to be contributed by licensed insurers and self-insurers pursuant to section 147 shall be sufficient to ensure that any temporary advance made to the Fund by the Treasurer is repaid to the Consolidated Fund within 5 years from the day on which the temporary advance is made.
PART XIII - Miscellaneous
149. Recovery of compensation over-paid
Where in respect of any claim for compensation a person has received a payment by way of compensation in excess of the payment to which he was entitled under this Act, the licensed insurer, employer, or Nominal Insurer, as the case may be –(a) may recover from the first-mentioned person as a debt due and payable to him or it the difference between the payment received by that first-mentioned person and the payment to which he was entitled; or(b) may deduct from any money that may become payable to or in relation to that first-mentioned person in respect of that claim the difference between the payment received by him or in relation to him and the payment to which he or any person in relation to him was entitled.
150. Protection from liability
[Section 150 Amended by No. 16 of 1995, s. 79 ]The Chief Commissioner, a Commissioner, a part-time Commissioner, the Registrar, a deputy registrar of the Tribunal or a conciliator referred to in section 43A is not liable, and an action does not lie against him, on account of anything done under the authority of this Act, or done in good faith purportedly under the authority of this Act, or on account of any omission made in good faith in the administration of this Act.
[Section 150A Inserted by No. 16 of 1995, s. 80 ](1) The Chief Executive may appoint as an authorized officer for the purposes of this Act –(a) [Section 150A Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] a State Service officer or State Service employee employed in the Department; or(b) [Section 150A Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] with the approval of another Head of a State Service Agency, a State Service officer or State Service employee employed in that Agency.(2) The Chief Executive is to issue an authorized officer appointed under subsection (1) with a certificate of appointment.(3) The Chief Executive may authorize a person, other than a person referred to in subsection (1) , to perform the functions and exercise the powers of an authorized officer under this Act.(4) The Chief Executive is to issue a person authorized under subsection (3) with a certificate of authorization.
151. Powers of authorized officers
(1) [Section 151 Subsection (3) amended by No. 16 of 1995, s. 81 ]An authorized officer may require –(a) an employer to produce for inspection any policies of insurance which he is required to maintain under this Act, any record required to be kept by the employer under this Act, and any record relating to the employment by him of workers; and(b) an employer or a licensed insurer to furnish such particulars in relation to any policy of insurance or record referred to in paragraph (a) as the authorized officer may consider necessary.(2) Without prejudice to the making of a requirement in any other manner, a requirement made of a person under subsection (1) may be made by notice in writing served on him.(3) [Section 151 Subsection (3) amended by No. 46 of 1991, s. 4 and Sched. 2 ][Section 151 Subsection (3) amended by No. 16 of 1995, s. 81 ]An authorized officer may –(a) question an employer, a licensed insurer, or any person employed by an employer or a licensed insurer either alone or in the presence of any other person, as he thinks fit, with respect to any claim for compensation or any policy of insurance or record required to be maintained under this Act and require that person to answer the questions put by the authorized officer; and(b) exercise such other powers as may be prescribed in the regulations.(4) For the purpose of the exercise of his powers under this section, an authorized officer may enter and remain on any premises at which the employer or licensed insurer conducts business.(5) An authorized officer who is exercising his powers under this section may take with him an interpreter and, when he does so –(a) any question put, or requirement made, by the interpreter on behalf of the authorized officer shall be deemed to have been put or made by the authorized officer; and(b) a reply to a question or requirement made to the interpreter shall be deemed to have been made to the authorized officer.(6) An employer or a licensed insurer shall, at all reasonable times, provide the means required by an authorized officer that are necessary for the exercise of his powers under this section.(7) A person who –is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units.(a) obstructs, hinders, wilfully delays, threatens, or assaults an authorized officer or interpreter in the exercise of his powers under this section;(b) fails to comply with a request of an authorized officer, or to answer questions asked by an authorized officer, made under any such power when it is within his power to comply with the request;(c) gives an answer to such a question which, to his knowledge, is false or misleading in a material particular; or(d) intentionally conceals a person from an authorized officer or prevents a person from appearing before or being questioned by an authorized officer for the purposes of this Act or attempts so to conceal or prevent a person –
151A. Protection from liability for authorized officers
[Section 151A Inserted by No. 26 of 1991, s. 5 ](1) Any act or thing done, or omitted to be done, in good faith by an authorized officer in the exercise or purported exercise of the powers conferred on the officer by this Act shall not subject the officer personally to any action, liability, claim or demand.(2) Subsection (1) does not preclude the Crown from being subject to any action, liability, claim or demand to which the Crown would, but for this subsection, have been subject.
152. Summary of Act, &c., to be available
(1) An employer shall keep, or cause to be kept, readily available at every workplace for the information of workers employed at that workplace –(a) a summary of the provisions of this Act;(b) if the employer has obtained a policy of insurance in respect of persons employed at the workplace, a statement setting out the name and address of the licensed insurer from whom the policy was obtained and stating that insurance under this Act has been effected with that licensed insurer;(c) if the employer is a self-insurer, a statement to that effect; and(d) such other information as may be prescribed in the regulations.(2) An employer who fails to comply with subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units.
152A. Obtaining of information by Board
[Section 152A Inserted by No. 16 of 1995, s. 82 ](1) The Board may, by notice in writing served on a person, require that person, within such period as is specified in the notice, to furnish it with such information as it reasonably requires to enable it to carry out its functions.(2) A person who is required to furnish information and who without lawful excuse refuses or fails to furnish the information within the period specified in the notice is guilty of an offence.Penalty: Fine not exceeding 20 penalty units.
153. False or misleading statements
(1) [Section 153 Subsection (1) amended by No. 16 of 1995, s. 83 ]An accredited medical practitioner or accredited person who provides a certificate that contains any information that to his knowledge is false or misleading in a material particular is guilty of an offence and is liable on summary conviction to a fine not exceeding 100 penalty units.(2) A person shall not, in making any application, furnishing any particulars or information, or keeping any record, pursuant to this Act, make, or cause to be made, a statement or representation that to his knowledge is false or misleading in a material particular.(3) A person who contravenes subsection (2) is guilty of an offence and is liable on summary conviction to a fine not exceeding 100 penalty units.
154. Worker's right to information
(1) A worker shall be entitled to inquire of his employer the name and address of the insurer from whom the employer has obtained a policy of insurance under this Act and, if the worker so requires, to examine the policy document or, if the employer is a self-insurer, to be so informed.(2) An employer or a person acting for an employer in the management of the business in which a worker is employed who refuses to supply to the worker particulars requested under subsection (1) or the policy document for examination or who, in reply to an inquiry under that subsection, gives information which to his knowledge is false or misleading, is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units.
(1) No fees are payable in respect of any proceedings for compensation under this Act or for the settlement of any claim, question, or matter arising in relation to compensation under this Act.(2) [Section 155 Subsection (2) amended by No. 16 of 1995, s. 84 ]In respect of any proceeding by execution or otherwise for the enforcement of payment of a sum of money under an order under this Act, there is payable such fee as may be prescribed in the regulations.
156. Enactments relating to limitations of actions inapplicable to proceedings under this Act, &c.
No enactment relating to the limitation of actions applies, or shall be deemed to have applied, to any proceedings by a worker under this Act or under the repealed Act .
157. Receipts by minors valid discharge
The receipt of a person who is under the age of 18 years to whom any money is payable by way of compensation or otherwise under this Act is a good and valid discharge for the payment of that money notwithstanding that that person is a minor.
(1) [Section 158 Subsection (1) amended by No. 43 of 1993, s. 26 ]Except in the course of performing or exercising functions or powers under this Act, a person shall not disclose any information obtained by him in the exercise of any powers conferred on him by this Act or by virtue of his office under this Act.(2) A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 5 penalty units.
[Section 158A Inserted by No. 16 of 1995, s. 85 ](1) The common seal of the Board is to be kept and used as authorized by the Board.(2) All courts and persons acting judicially are to take judicial notice of the imprint of the common seal of the Board on a document and presume that it was duly sealed by the Board.
158B. Judicial notice of certain signatures
[Section 158B Inserted by No. 16 of 1995, s. 85 ]All courts and persons acting judicially are to take judicial notice of –(a) the official signature of a person who is or has been the chairperson or a member of the Board; and(b) the fact that the person holds or has held the office concerned.
(1) Where under this Act a notice or other document, other than a notice of injury or claim for compensation referred to in Part IV , is required or authorized to be served on a person, the notice or document may be served –(a) in the case of a person who is neither a body corporate nor a firm –(i) by delivering it to him personally;(ii) by leaving it at that person's place of residence last known to the person required or authorized to serve the notice or other document with someone who apparently resides there, or at that person's place of business or employment last known to the person required or authorized to serve the notice or other document with someone who is apparently employed there, being in either case a person who has or apparently has attained the age of 16 years; or(iii) by sending it by post to that person's place of residence, business, or employment last known to the person required or authorized to serve the notice or other document;(b) in the case of a body corporate –(i) by delivering it to the secretary of the body corporate personally;(ii) by leaving it at the registered office of the body corporate or at the place or principal place of business of the body corporate in Tasmania with a person apparently employed there, being a person who has or apparently has attained the age of 16 years; or(iii) by sending it by post to the registered office of the body corporate or to the place or principal place of business of the body corporate; or(c) in the case of a firm –(i) by delivering it to a member of the firm personally;(ii) by leaving it at the place or principal place of business of the firm in Tasmania last known to the person required or authorized to serve the notice or other document with a person apparently employed there, being a person who has or apparently has attained the age of 16 years; or(iii) by sending it by post to the place or principal place of business of the firm in Tasmania last known to the person required or authorized to serve the notice or other document.(2) A reference in subsection (1) to the registered office of a body corporate includes a reference to a registered office that is outside Tasmania.(3) The provisions of this section are in addition to the provisions of section 528 of the Companies (Tasmania) Code .
160. Offences by bodies corporate
Where a body corporate is convicted of an offence against this Act, each director or member of the governing authority of the body corporate and each officer concerned in the management of the body corporate is guilty of the like offence unless he proves that he used all due diligence to prevent the commission of the offence or that the offence was committed without his knowledge or consent or contrary to his orders or directions.
161. Fines to be paid to Board
All fines recovered under this Act shall be paid to the Board.
161A. Time for instituting proceedings for offences
[Section 161A Inserted by No. 48 of 1996, s. 18 ]Notwithstanding anything in any other Act, proceedings for an offence against this Act may be instituted at any time within 12 months after the occurrence of the act or omission alleged to constitute the offence.
(1) The Governor may make regulations for the purposes of this Act.(2) In addition to the regulations authorized to be made by any other provision of this Act and without affecting the generality of subsection (1) , the regulations may make provision for or with respect to prescribing rules of practice and procedure, other than those already specified in this Act, in relation to all claims for compensation and any other matters arising under this Act.(3) The regulations may be made subject to such conditions, or be made so as to apply differently according to such factors as may be specified in the regulations or according to such limitations or restrictions, whether as to time or circumstance or otherwise, as may be so specified.(4) The regulations may provide that it is an offence, punishable on summary conviction, for a person to contravene or fail to comply with any of the regulations and may provide in respect of any such offence for the imposition of a fine not exceeding 10 penalty units and, in the case of a continuing offence, a further fine not exceeding one penalty unit for each day during which the offence continues.
The Acts specified in Schedule 7 are repealed.
164. Savings, transitional and other provisions
The amendments effected by this section have been incorporated into the authorised version of the Evidence Act 1910 .The amendments effected by this section have been incorporated into the authorised version of the Magistrates Court Act 1987 .(1) Schedules 8 and 9 have effect.(2) The Governor may make regulations containing provisions of a savings or transitional nature consequent on the enactment of this Act.(3) A provision made under subsection (2) may take effect from and including the day fixed by proclamation under section 2 (2) or from and including a later day.
SCHEDULE 1 - Provisions with respect to membership of Workplace Safety Board of Tasmania[Schedule 1 Amended by No. 27 of 1993, s. 35 and Sched. 3 ][Schedule 1 Amended by No. 16 of 1995, s. 86 ][Schedule 1 Amended by No. 48 of 1996, s. 19 ]
1. Terms of officeA member of the Board referred to in section 9 (1) (a) , (b) , (c) , (e) or (f) shall be appointed for such term, not exceeding 3 years, as is specified in the instrument of his appointment and shall, if he remains qualified for membership of the Board be eligible for re-appointment from time to time for a term, not exceeding 3 years, specified in the instrument of his re-appointment.
2. Provisions requiring devotion of whole of time to other dutiesWhere, by or under any Act, provision is made requiring the holder of an office to devote the whole of his time to the duties of his office under that Act, that provision shall not operate to disqualify him from holding that office and also the office of a member of the Board.
3. Remuneration(1) Subject to subclause (2) , a member of the Board is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Governor may from time to time determine, and the payment of any such remuneration shall be made out of the Workers Rehabilitation and Compensation Fund.(2) A member of the Board who is –is not entitled to remuneration under subclause (1) , except with the approval of the Minister administering that Act.(a) [Schedule 1 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] a State Service officer or State Service employee; or(b) otherwise holding, or acting in, an office –(i) [Schedule 1 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] under the State Service Act 2000 ; or(ii) in an Agency within the meaning of that Act –(3) . . . . . . . .
4. State Service Act 2000 not to apply[Schedule 1 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The State Service Act 2000 does not apply to, or in respect of, the appointment of a member of the Board and a member of the Board shall not, in his capacity as such a member, be subject to that Act during his term of office.
5. Deputies of ex officio members and appointment of substitute to act in place of appointed members(1) The Chief Executive may appoint as the deputy of the member referred to in section 9 (1) (d) a person employed in the Department and that deputy, while acting in the absence of that member, shall be deemed to be a member of the Board, with all the powers, rights, and duties of that member (other than the power conferred by this subclause).(2) The Minister may appoint –while the chairperson or that member, as the case may be, is absent from his office through illness or any other cause.(a) any person (including a member of the Board other than the chairperson) to act in the office of chairperson of the Board; or(b) any person to act in the office of a member of the Board referred to in section 9 (1) (b) , (c) , (e) or (f) –(3) A member of the Board referred to in section 9 (1) (b) , (c) , (e) or (f) shall, for the purposes of subclause (2) , be deemed to be absent from his office if he is acting in the office of the chairperson of the Board pursuant to subclause (2) .(4) A member of the Board referred to in section 9 (1) (a) , (b) , (c) , (e) or (f) shall, for the purposes of subclause (2) , be deemed to be absent from his office if there is a vacancy in that office which has not been filled in accordance with clause 6 .(5) A person shall not be concerned to inquire whether or not any occasion has arisen requiring or authorizing a person to act in the office of a member of the Board, and all things done or omitted to be done by that person while so acting shall be as valid, and shall have the same consequences, as if they had been done or omitted to be done by that member.
6. Filling of vacanciesOn the occurrence of a vacancy in the office of a member of the Board referred to in section 9 (1) (a) , (b) , (c) , (e) or (f) , the Governor may appoint a person to the vacant office for the residue of the member's term of office and the person is to be appointed in accordance with section 9 .
7. Vacation of office(1) A member of the Board shall be deemed to have vacated his office –(a) when he dies;(b) if he becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors, or makes an assignment of his remuneration or estate for their benefit;(c) if he is absent from 3 consecutive ordinary meetings of the Board of which reasonable notice has been given to him, either personally or in the ordinary course of post, unless –(i) on leave granted by the Minister; or(ii) before the expiration of 21 days after the last of those meetings, he is excused by the Minister for his absence from those meetings;(d) [Schedule 1 Amended by No. 32 of 1996, Sched. 1, Applied:01 Nov 1999] if he becomes unable to perform competently the duties of the office;(e) if he is convicted in Tasmania of a crime or an offence which is punishable by imprisonment for a period of not less than 12 months, or if he is convicted outside Tasmania of an offence which, if committed in Tasmania, would be a crime or an offence so punishable;(f) if he is convicted of an offence against this Act;(g) if he resigns his office by writing under his hand addressed to the Governor and the Governor accepts the resignation; or(h) if he is removed from office by the Governor under subclause (2) .(2) The Governor may remove from office a member of the Board if the Governor is satisfied that the member –(a) has failed to comply with section 12 ; or(b) is unable to perform adequately or competently the duties of his office.(3) A member of the Board shall not be removed from office otherwise than in accordance with this clause.
8. Validity of proceedings, &c.(1) No act or proceeding of the Board or of any person acting pursuant to any direction of the Board is invalidated or prejudiced by reason only of the fact that, at the time when the act or proceeding was done, taken, or commenced, there was a vacancy in the membership of the Board.(2) All acts and proceedings of the Board or of any person acting pursuant to any direction of the Board are, notwithstanding the subsequent discovery of any defect in the appointment of any member of the Board or that any person was disqualified from acting as, or incapable of being, a member of the Board, as valid as if the member had been duly appointed and was qualified to act, or capable of being, a member, and as if the Board had been fully constituted.(3) Where a member of the Board, or any person acting pursuant to any direction of the Board, does or purports to do, or omits or purports to omit to do, any act or thing in good faith for the purpose of administering or executing this or any other Act, he shall not be personally subjected to any action, liability, claim, or demand in respect of that act or omission.
9. PresumptionsIn any proceedings by or against the Board, unless evidence is given to the contrary, no proof shall be required of –(a) the constitution of the Board;(b) any resolution of the Board;(c) the appointment of any member of the Board; or(d) the presence of a quorum at any meeting of the Board.
SCHEDULE 2 - Provisions with respect to meetings of Workplace Safety Board of Tasmania[Schedule 2 Amended by No. 16 of 1995, s. 87 ]
1. Convening of meetings of the BoardMeetings of the Board may be convened by the chairperson of the Board or by any 3 members of the Board.
2. Procedure at meetings(1) Four members of the Board shall form a quorum at any duly convened meeting of the Board.(2) Any duly convened meeting of the Board at which a quorum is present shall be competent to transact any business of the Board.(3) Questions arising at a meeting of the Board shall be determined by a majority of votes of the members of the Board present and voting.
3. Chairing of meetingsThe chairperson of the Board or, in the absence of the chairperson, the person acting in the office of chairperson shall preside at a meeting of the Board and the chairperson or the person acting in the office of chairperson, as the case may be, has a deliberative vote and, in the event of an equality of votes, also has a casting vote.
4. General procedureThe procedure for the calling of, and for the conduct of business at, meetings of the Board shall, subject to any procedure that is specified in this Schedule, be as determined by the Board.
SCHEDULE 3 - Provisions with respect to the term of office and conditions of service of Chief Workers Rehabilitation and Compensation Commissioner[Schedule 3 Amended by No. 68 of 1994, s. 3 and Sched. 1 ][Schedule 3 Amended by No. 16 of 1995, s. 88 ]
Sections 17A and 17B
1. Term of officeSubject to this Schedule, the Chief Commissioner shall be appointed for such term, not exceeding 5 years, as is specified in the instrument of his appointment and may from time to time be re-appointed for a further term, not exceeding 5 years, as is so specified.
2. Age of Chief CommissionerA person who has attained the age of 65 years shall not be appointed or re-appointed as the Chief Commissioner.
3. Chief Commissioner not to engage in paid employment outside duties of his officeThe Chief Commissioner shall not, without the permission of the Governor, hold any other office of profit or engage in any occupation for reward outside the duties of his office.
4. Remuneration of Chief CommissionerThe Chief Commissioner is entitled to such remuneration and allowances as the Governor determines, and holds office subject to such terms and conditions (if any) with respect to matters not provided for in this Schedule as are specified in the instrument of his appointment.
5. State Service Act 2000 not to apply to Chief Commissioner[Schedule 3 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The provisions of the State Service Act 2000 do not apply to or in respect of the appointment by the Governor of the Chief Commissioner and the Chief Commissioner is not, in his capacity as Chief Commissioner, subject to the provisions of that Act during his term of office as Chief Commissioner.
6. Chief Commissioner deemed to be employee for purposes of certain ActsThe Chief Commissioner shall be deemed to be an employee for the purposes of the Retirement Benefits Act 1993 and the Long Service Leave (State Employees) Act 1994 .
7. Vacation of office of Chief Commissioner(1) A person holding the office of Chief Commissioner shall be deemed to have vacated that office –(a) when he dies;(b) if he becomes bankrupt, applies to take the benefit of any laws for the relief of bankrupt or insolvent debtors, compounds with his creditors, or makes any assignment of his remuneration or estate for their benefit;(c) [Schedule 3 Amended by No. 32 of 1996, Sched. 1, Applied:01 Nov 1999] if he becomes unable to perform competently the duties of the office;(d) if he is convicted in the State of a crime or an offence which is punishable by imprisonment for 12 months or upwards, or if he is convicted elsewhere than in the State of an offence which, if committed in the State, would be a crime or an offence so punishable;(e) if he absents himself from duty for a period exceeding 14 days except –(i) on leave granted by the Minister; or(ii) through illness or other unavoidable cause;(f) if he resigns his office by writing under his hand delivered to the Governor and the Governor accepts the resignation;(g) on his attaining the age of 65 years; or(h) if he is removed from office by the Governor under subclause (2) .(2) The Governor may remove the Chief Commissioner from office for misbehaviour, neglect of duty, or incompetence.
8. Chief Commissioner entitled to retain certain rights in certain circumstances(1) [Schedule 3 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] If a State Service officer or State Service employee is appointed to the office of Chief Commissioner, he is entitled to retain all his existing and accruing rights as if his service in that office were a continuation of his service as a State Service officer or State Service employee.(2) [Schedule 3 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Where a person referred to in subclause (1) ceases to hold the office of Chief Commissioner and becomes a State Service officer or State Service employee, his service in the office of Chief Commissioner shall be regarded as service as a State Service officer or State Service employee for the purpose of determining his rights as such an officer or employee.
SCHEDULE 4 - Diseases in Respect of Which There is Presumption of Cause
COLUMN 1 Description of Disease | COLUMN 2 Description of Work | Poisoning by— —Beryllium or its toxic compounds. | Any work involving exposure to the risk concerned. | —Cadmium or its toxic compounds. | Any work involving exposure to the risk concerned. | —Phosphorous or its toxic compounds. | Any work involving exposure to the risk concerned. | —Chromium or its toxic compounds. | Any work involving exposure to the risk concerned. | —Manganese or its toxic compounds. | Any work involving exposure to the risk concerned. | —Arsenic or its toxic compounds. | Any work involving exposure to the risk concerned. | —Mercury or its toxic compounds. | Any work involving exposure to the risk concerned. | —Lead or its toxic compounds. | Any work involving exposure to the risk concerned. | —Fluorine or its toxic compounds. | Any work involving exposure to the risk concerned. | —Carbon Disulphide. | Any work involving exposure to the risk concerned. | —The toxic halogen derivatives of aliphatic or aromatic hydrocarbons. | Any work involving exposure to the risk concerned. | —Benzene or its toxic homologues. | Any work involving exposure to the risk concerned. | —Nitro—or amino—or chloro—derivatives of benzene or its derivatives. | Any work involving exposure to the risk concerned. | —Nitroglycerine or other nitric acid esters. | Any work involving exposure to the risk concerned. | —Alcohols, glycols, or ketones. | Any work involving exposure to the risk concerned. | —Asphyxiants—carbon monoxide, carbon dioxide, hydrogen cyanide, hydrogen sulphide, nitrogen. | Any work involving exposure to the risk concerned. | —Nitrus fumes. | Any work involving exposure to the risk concerned. | Pneumoconioses caused by silica dust (silicosis, anthracosilicosis) and silico-tuberculosis, provided that silicosis is an essential factor in causing the resultant incapacity or death from silico-tuberculosis. | Any work involving exposure to inhalation of silica dust. | Asbestosis. | Any work involving exposure to inhalation of asbestos fibres. | Primary malignant neoplasm of the mesothelium (diffuse mesothelioma) of the pleura or of the peritoneum. | Any work involving exposure to inhalation of asbestos fibres. | Nystagmus. | Any work in or about a mine. | Compressed air illness including avascular necrosis. | Any work involving exposure to increased or reduced atmospheric pressure from working underground or underwater or from working at high altitude. | Disease caused by ionising radiations. | Any work involving exposure to ionisingradiation. | Primary squamous cell carcinoma of skin due to exposure to tar, pitch, mineral oil, anthracene or compounds, products, or residues of these substances. | Any work involving exposure to the risk concerned. | Infectious or parasitic diseases contracted in an occupation where there is a particular risk of exposure to the agent responsible. | (a) Health or laboratory work; (b) Veterinary work; (c) Work handling animals, animal carcasses, or merchandise which may have been contaminated by animals, animal carcasses, or parts of such carcasses – | where that work involves exposure to the infectious or parasitic agents concerned. | An asthmatic condition caused by fumes resulting from the primary aluminium smelting process. | Any work involving exposure to fumes produced by the primary aluminium smelting process. |
SCHEDULE 5[Schedule 5 Amended by No. 27 of 1993, sched. 3 ][Schedule 5 Repealed by No. 16 of 1995, s. 89 ]
SCHEDULE 6 - Provisions with respect to membership and meetings of Nominal Insurer[Schedule 6 Amended by No. 27 of 1993, s. 35 and Sched. 3 ]
1. Term of officeA member of the Nominal Insurer referred to in section 122 (1) shall be appointed for such period not exceeding 3 years, as is specified in the instrument of his appointment and shall be eligible for re-appointment from time to time for a term, not exceeding 3 years, specified in the instrument of his re-appointment.
2. Provisions requiring devotion of whole of time to other dutiesWhere, by or under any Act, provision is made requiring the holder of an office to devote the whole of his time to the duties of his office under that Act, that provision shall not operate to disqualify him from holding that office and also the office of a member of the Nominal Insurer.
3. RemunerationA member of the Nominal Insurer is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine.
4. State Service Act 2000 not to apply[Schedule 6 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The State Service Act 2000 does not apply to, or in respect of, the appointment of a member of the Nominal Insurer and a member of the Nominal Insurer shall not, in his capacity as such a member, be subject to that Act during his term of office.
5. Deputy chairperson and appointment of substitute to act in place of nominated members(1) The Minister may appoint any person to act in the office of the chairperson of the Nominal Insurer referred to in section 122 (1) while the chairperson is absent from his or her office through illness or any other cause.(2) The Minister may appoint any person to act in the office of a member of the Nominal Insurer referred to in section 122 (1) , while that member is absent from his office through illness or any other cause.(3) A member of the Nominal Insurer referred to in section 122 (1) shall, for the purposes of subclause (2) , be deemed to be absent from his office if there is a vacancy in that office which has not been filled in accordance with clause 6 .(4) A person shall not be concerned to inquire whether or not any occasion has arisen requiring or authorizing a person to act in the office of a member of the Nominal Insurer, and all things done or omitted to be done by that person while so acting shall be as valid, and shall have the same consequences, as if they had been done or omitted to be done by that member.
6. Filling of vacanciesOn the occurrence of a vacancy in the office of a member of the Nominal Insurer referred to in section 122 (1) , the Minister may appoint a person to the vacant office for the residue of his predecessor's term of office and the person appointed shall be a person selected by the Minister after consultation with the licensed insurers and self-insurers.
7. Vacation of office(1) A member of the Nominal Insurer shall be deemed to have vacated his office –(a) when he dies;(b) if he becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors, or makes an assignment of his remuneration or estate for their benefit;(c) if he is absent from 3 consecutive ordinary meetings of the Nominal Insurer of which reasonable notice has been given to him, either personally or in the ordinary course of post, unless –(i) on leave granted by the Minister; or(ii) before the expiration of 21 days after the last of those meetings, he is excused by the Minister for his absence from those meetings;(d) [Schedule 6 Amended by No. 32 of 1996, Sched. 1, Applied:01 Nov 1999] if he becomes unable to perform competently the duties of the office;(e) if he is convicted in Tasmania of a crime or an offence which is punishable by imprisonment for a period of not less than 12 months, or if he is convicted outside Tasmania of an offence which, if committed in Tasmania, would be a crime or an offence so punishable;(f) if he is convicted of an offence against this Act;(g) if he resigns his office by writing under his hand addressed to the Minister and the Minister accepts the resignation; or(h) if he is removed from office by the Minister under subclause (2) .(2) The Minister may remove from office a member of the Nominal Insurer if the Minister is satisfied that the member –(a) has failed to comply with section 124 ; or(b) is unable to perform adequately the duties of his office.(3) A member of the Nominal Insurer shall not be removed from office otherwise than in accordance with this clause.
8. Validity of proceedings, &c.(1) No act or proceeding of the Nominal Insurer or of any person acting pursuant to any direction of the Nominal Insurer is invalidated or prejudiced by reason only of the fact that, at the time when the act or proceeding was done, taken, or commenced, there was a vacancy in the membership of the Nominal Insurer.(2) All acts and proceedings of the Nominal Insurer or of any person acting pursuant to any direction of the Nominal Insurer are, notwithstanding the subsequent discovery of any defect in the appointment of any member of the Nominal Insurer or that any person was disqualified from acting as, or incapable of being, a member of the Nominal Insurer, as valid as if the member had been duly appointed and was qualified to act, or capable of being, a member, and as if the Nominal Insurer had been fully constituted.(3) Where a member of the Nominal Insurer, or any person acting pursuant to any direction of the Nominal Insurer, does or purports to do, or omits or purports to omit to do, any act or thing in good faith for the purpose of administering or executing this Act, he shall not be personally subjected to any action, liability, claim, or demand in respect of that act or omission.
9. PresumptionsIn any proceedings by or against the Nominal Insurer, unless evidence is given to the contrary, no proof shall be required of –(a) the constitution of the Nominal Insurer;(b) any resolution of the Nominal Insurer;(c) the appointment of any member of the Nominal Insurer; or(d) the presence of a quorum at any meeting of the Nominal Insurer.
10. Convening of meetings of the Nominal InsurerMeetings of the Nominal Insurer may be convened by the chairperson of the Nominal Insurer or by any 3 members of the Nominal Insurer.
11. Procedure at meetings(1) Three members of the Nominal Insurer shall form a quorum at any duly convened meeting of the Nominal Insurer.(2) Any duly convened meeting of the Nominal Insurer at which a quorum is present shall be competent to transact any business of the Nominal Insurer.(3) Questions arising at a meeting of the Nominal Insurer shall be determined by a majority of votes of the members of the Nominal Insurer present and voting.
12. Chairing of meetingsThe chairperson of the Nominal Insurer or, in the absence of the chairperson, the person acting in the office of chairperson shall preside at a meeting of the Nominal Insurer and the chairperson or the person acting in the office of chairperson, as the case may be, has a deliberative vote and, in the event of an equality of votes, also has a casting vote.
13. General procedureThe procedure for the calling of, and for the conduct of business at, meetings of the Nominal Insurer shall, subject to any procedure that is specified in this Schedule, be as determined by the Nominal Insurer.
SCHEDULE 7 - Acts repealed
Number and year of Act | Short title of Act | 18 Geo. V No. 82 | Workers' Compensation Act 1927 | No. 79 of 1953 | Workers' Compensation Act 1953 | No. 63 of 1962 | Workers' Compensation Act 1962 | No. 58 of 1972 | Workers' Compensation Act 1972 | No. 93 of 1973 | Workers' Compensation (Alternative Remedies) Act 1973 | No. 72 of 1980 | Workers' CompensationAmendment Act 1980 | No. 59 of 1986 | Workers' Compensation Amendment Act 1986 |
SCHEDULE 8 - Savings and transitional provisions[Schedule 8 Amended by No. 16 of 1995, s. 90 ]
1. InterpretationIn this Schedule –approved insurer means an approved insurer within the meaning of the repealed Act ;commencement day means the day fixed under section 2 (2) .
2. Proceedings commenced under repealed Act to be continued under that ActSubject to section 69A , all proceedings that have been commenced under the repealed Act and that have not on the commencement day been finally determined shall be continued and determined under that Act.
3. Provisions with respect to orders under section 3 (5) of repealed ActAn order under section 3 (5) of the repealed Act that is in force immediately before the commencement day continues in force after that day as if it had been made under section 66 .
4. Provisions with respect to employers maintaining policy of insurance complying with section 34 (1) of repealed ActAn employer who, immediately before the commencement day, maintains in force with an approved insurer a policy of insurance complying with section 34 (1) of the repealed Act shall, on that day, be deemed to be maintaining in force with a licensed insurer a policy of insurance that complies with section 97 (1) .
5. Certain insurers not guilty of offence under section 98(1) An insurer –is not guilty of an offence under section 98 by reason only that, not being a licensed insurer, he carries on workers compensation insurance business in this State during the period of 3 months after the commencement day.(a) who carried on, as an approved insurer, workers compensation insurance business in this State immediately before the commencement day; and(b) who has not been refused a licence under section 101 –(2) An insurer who –is not guilty of an offence under section 98 by reason only that, not being a licensed insurer, he carries on workers compensation insurance business in this State after the expiration of 3 months after the commencement day.(a) carried on, as an approved insurer, workers compensation insurance business in this State immediately before the commencement day;(b) has, within 3 months after the commencement day applied under section 100 for a licence under this Act; and(c) has not withdrawn the application or been refused a licence under section 101 –
SCHEDULE 9 - Savings and transitional provisions in relation to the Workers Rehabilitation and Compensation Reform Act 1995
1. InterpretationIn this Schedule –commencement day means the day on which the Workers Rehabilitation and Compensation Reform Act 1995 commences;Workers Compensation Board means the Workers Compensation Board constituted under section 8 , as in force immediately before the commencement day;Workplace Safety Board means the Workplace Safety Board of Tasmania established under section 8 .
2. Acts, &c., done by or to the Workers Compensation BoardAll acts, matters and things done or omitted to be done by, or done or suffered in relation to, the Workers Compensation Board before the commencement day have, on and after that day, the same force and effect as if they had been done or omitted to be done by, or done or suffered in relation to, the Workplace Safety Board.
3. Property and rights, &c.On the commencement day, the property and rights of the Workers Compensation Board vest in the Workplace Safety Board and the liabilities of the Workers Compensation Board become the liabilities of the Workplace Safety Board.
4. Money and claimsOn the commencement day –(a) all money, debts and claims, liquidated or unliquidated, that, immediately before that day, was or were payable to, due to or recoverable by the Workers Compensation Board are taken to be money, debts or claims payable to, due to or recoverable by the Workplace Safety Board; and(b) all money, debts and claims, liquidated or unliquidated, that, immediately before that day, was or were payable by, due from, or recoverable against the Workers Compensation Board are taken to be money, debts or claims payable by, due from or recoverable against the Workplace Safety Board.
5. Legal proceedings by or against the Board(1) On and after the commencement day, any legal proceedings instituted by or against the Workers Compensation Board before, and pending immediately before, that day may be continued by or against the Workplace Safety Board.(2) On and after the commencement day, any legal or other proceedings which may, immediately before that day, have been instituted or continued by or against the Workers Compensation Board may be instituted or continued by or against the Workplace Safety Board.(3) On and after the commencement day, a judgment or order of a court obtained in legal proceedings by or against the Workers Compensation Board and not executed or satisfied before that day may be enforced by or against the Workplace Safety Board.
6. ContractsAll contracts, agreements, arrangements and undertakings which were entered into by the Workers Compensation Board before, but which were not performed or discharged by, the commencement day are, on and after that day, taken to have been entered into by the Workplace Safety Board.
7. DocumentsOn and after the commencement day –(a) any document which was addressed to, and which was purported to have been served on or notified to, the Workers Compensation Board and which had not ceased to have effect before that day, is taken to have been served on or notified to the Workplace Safety Board; and(b) any document which was addressed to, and which was purported to have been served on or notified to, a person by or on behalf of the Workers Compensation Board and which had not ceased to have effect before that day, is taken to have been served on or notified to that person by the Workplace Safety Board.
8. References to Workers Compensation BoardOn and after the commencement day, a reference to the Workers Compensation Board in any Act, law, instrument or document is taken to be a reference to the Workplace Safety Board.
9. Temporary performance of functions, &c., of Workplace Safety BoardUntil all members of the Workplace Safety Board are appointed under section 9 , or for a period of 2 months after the commencement day, whichever is the earlier, the Chief Executive is to perform the functions and exercise the powers of that Board.
10. Person holding office as Workers Compensation CommissionerOn and after the commencement day, the person holding office as Workers Compensation Commissioner immediately before that day is taken to be appointed as Chief Workers Rehabilitation and Compensation Commissioner.
11. Acts, &c., done by or to the Workers Compensation CommissionerAll acts, matters and things done or omitted to be done by, or done or suffered in relation to, the Workers Compensation Commissioner before the commencement day have, on and after that day, the same force and effect as if they had been done or omitted to be done by, or done or suffered in relation to, the Tribunal.
12. Case stated for opinion of Supreme Court by Workers Compensation CommissionerOn and after the commencement day, a case stated for the opinion of the Supreme Court by the Workers Compensation Commissioner under section 58 , the hearing of which is pending immediately before that day, is taken to be a case stated by the Tribunal.
13. Appeals against determinations, &c., of Workers Compensation CommissionerOn and after the commencement day, an appeal to the Supreme Court in relation to any determination, order, ruling or direction of the Workers Compensation Commissioner and pending immediately before that day is taken to be an appeal in relation to a determination, order, ruling or direction of the Tribunal.
14. Legal proceedings by or against Workers Compensation Commissioner(1) On and after the commencement day, any legal proceedings instituted by or against the Workers Compensation Commissioner before, and pending immediately before, that day may be continued by or against the Tribunal.(2) On and after the commencement day, any legal or other proceedings which may, immediately before that day, have been instituted or continued by or against the Workers Compensation Commissioner may be instituted or continued by or against the Tribunal.(3) On and after the commencement day, a judgment or order of a court obtained in legal proceedings by or against the Workers Compensation Commissioner and not executed or satisfied before that day may be enforced by or against the Tribunal.
15. Acts, &c., done by or to a registrarAll acts, matters and things done or omitted to be done by, or done or suffered in relation to, a registrar of the court of requests, or a person performing the functions of a registrar, under this Act before the commencement day have, on and after that day, the same force and effect as if they had been done or omitted to be done by, or done or suffered in relation to, the Registrar.
16. References to Workers Compensation CommissionerOn and after the commencement day, a reference to the Workers Compensation Commissioner or a part-time Workers Compensation Commissioner in any Act, law, instrument or document is taken to be a reference to the Tribunal.
17. DocumentsOn and after the commencement day –(a) any document which was addressed to, and which was purported to have been served on, the Workers Compensation Commissioner and which had not ceased to have effect before that day, is taken to have been served on the Tribunal; and(b) any document which was addressed to, and which was purported to have been served on, a person by or on behalf of the Workers Compensation Commissioner or a registrar of the court of requests, or a person performing the functions of a registrar, under this Act, and which had not ceased to have effect before that day, is taken to have been served on that person by the Tribunal; and(c) any document which was addressed to, and which was purported to have been served on, or lodged or filed with, a registrar of the court of requests, or a person performing the functions of a registrar, under this Act and which had not ceased to have effect before that day, is taken to have been served on, or lodged or filed with, the Registrar.
18. Continuation of certain weekly paymentsA worker, who before 4 June 1995 received, or was in receipt of, a weekly payment in accordance with the decision of the High Court of Australia in Scott v Sun Alliance Insurance Australia Limited & Anor. (1993) 178 C.L.R. 1, is, on and after the commencement day, entitled to have received or to continue to receive that payment as if section 69A had not been enacted.
19. Claims for compensationExcept as provided in section 69A , all claims for compensation with respect to an injury which occurred before the commencement day and not finally determined before that day are, on and after that day, to be continued and determined under this Act as in force immediately before that day.
20. Accredited medical practitionersAll medical practitioners are taken to be accredited medical practitioners for the period of 12 months from the commencement day or for such lesser period as may be prescribed.
21. Acts, &c., done by or to Premiums Monitoring CommitteeAll acts, matters and things done or omitted to be done by, or done or suffered in relation to, the Premiums Monitoring Committee before the commencement day have, on and after that day, the same force and effect as if they had been done or omitted to be done by, or done or suffered in relation to, the Workplace Safety Board.
22. Licences and permitsA licence or permit granted by the Workers Compensation Board and in force immediately before the commencement day is, on and after that day, taken to be a licence or permit granted by the Workplace Safety Board.
23. Notional premium paymentsA notional premium payment determined by the Workers Compensation Board before the commencement day is, on and after that day, taken to have been determined by the Workplace Safety Board.
24. References to Workers Compensation Act 1988On and after the commencement day, a reference to the Workers Compensation Act 1988 in any Act, law, instrument or document is taken to be a reference to the Workers Rehabilitation and Compensation Act 1988.