Part 8 Protection of injured workers from dismissal
(cf IR Act, s 91)
(1) In this Part:Commonwealth industrial instrument means any award, workplace agreement or other agreement made under (or taken to have been made, or to have effect, under) the Workplace Relations Act 1996 of the Commonwealth.
industrial organisation of employees has the same meaning as it has in the Industrial Relations Act 1996.
reinstatement includes re-employment.
State industrial instrument has the same meaning as industrial instrument has in the Industrial Relations Act 1996.
(2) For the purposes of this Part, an injured worker is a worker who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers’ Compensation (Dust Diseases) Act 1942.(3) For the purposes of this Part, a person is the employer of an injured worker only if the injury arose (either wholly or partly) out of or in the course of employment with that person.Note. For the purposes of comparison, a number of provisions of this Part contain bracketed notes in headings drawing attention (“cf IR Act”) to equivalent or comparable (though not necessarily identical) provisions of the Industrial Relations Act 1996 (as in force immediately before the commencement of this Part).
241 Application to employer for reinstatement of dismissed injured worker
(cf IR Act, s 92)
(1) If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application.(2) The kind of employment for which the worker applies for reinstatement cannot be more advantageous to the worker than that in which the worker was engaged when he or she first became unfit for employment because of the injury.(3) The worker must produce to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement.
242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate
(cf IR Act, s 93)
(1) If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order.(2) An industrial organisation of employees may make the application on behalf of the worker.(3) The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed.
243 Order by Industrial Relations Commission for reinstatement
(cf IR Act, s 94)
(1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order.(2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment.(3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being:(a) employment of a kind that is available but that is less advantageous to the worker, or(b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation).(4) If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission.
244 Presumption as to reason for dismissal
(cf IR Act, s 95)
(1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received.(2) That presumption is rebutted if the employer satisfies the Industrial Relations Commission that the injury was not a substantial and operative cause of the dismissal of the worker.
245 Disputes as to fitness—medical assessment
(cf IR Act, s 96)
(1) The Industrial Relations Commission may refer to an approved medical specialist any dispute as to the worker’s condition or fitness for employment to be assessed as provided by Part 7 of Chapter 7 of the 1998 Act.(2) The approved medical specialist is to submit a report to the Industrial Relations Commission in accordance with the terms of the reference.
246 Continuity of service of reinstated worker
(cf IR Act, s 97)
(1) If a worker is reinstated under this Part, the Industrial Relations Commission may order that the period of employment of the worker with the employer is taken not to have been broken by the dismissal.(2) However if the Industrial Relations Commission does so, the period between dismissal and the date of the application by the worker to the employer for reinstatement is not to be taken into account in calculating for any purpose the period of service of the worker with the employer.
247 Duty to inform replacement worker
(cf IR Act, s 98)
An employer who, within 2 years after dismissing an injured worker, employs a person to replace the dismissed worker is guilty of an offence unless the employer first informs the person that the dismissed worker may be entitled under this Part to be reinstated to carry out the work for which the person is to be employed.Maximum penalty: 50 penalty units.
248 Dismissal within 6 months of injury an offence
(cf IR Act, s 99)
(1) An employer of an injured worker who dismisses the worker is guilty of an offence if:(a) the worker is dismissed because the worker is not fit for employment as a result of the injury, and(b) the worker is dismissed during the relevant period after the worker first became unfit for employment.Maximum penalty: 100 penalty units.
(2) For the purposes of subsection (1), the relevant period is:(a) the period of 6 months after the worker first became unfit for employment, except as provided by paragraphs (b), (c) and (d), or(b) if the worker is entitled under a State industrial instrument to accident pay as a result of the injury for a period exceeding that period of 6 months—the period during which the worker is entitled to accident pay, or(c) if the worker was entitled under a State industrial instrument to accident pay as a result of the injury for a period exceeding that period of 6 months but that instrument ceased to have effect as such in relation to the worker because of the commencement of Schedule 8 to the Workplace Relations Act 1996 of the Commonwealth—the period during which the worker would have been entitled to accident pay under the instrument if it had not ceased to have effect, or(d) if the worker (other than a worker referred to in paragraph (c)) is entitled under a Commonwealth industrial instrument (or was entitled under a Commonwealth industrial instrument as in force immediately before the commencement of Schedule 7 to the Workplace Relations Act 1996 of the Commonwealth) to accident pay as a result of the injury for a period exceeding that period of 6 months—the period during which the worker is (or the period during which the worker was) entitled to accident pay, whichever is the greater period.Accident pay is an entitlement of the worker to payment by the employer, while the worker is unfit for employment, that is described as accident pay in the relevant industrial instrument.
Note. Both Schedules 7 and 8 to the Workplace Relations Act 1996 of the Commonwealth (which were inserted by the Workplace Relations Amendment (Work Choices) Act 2005 of the Commonwealth) commenced on 27 March 2006.(3) It is a defence to a prosecution for an offence under this section if the employer satisfies the court that:(a) at the time of dismissal, the worker would not undergo a medical examination reasonably required to determine fitness for employment, or(b) at the time of dismissal, the employer believed on reasonable grounds that the worker was not an injured worker within the meaning of this Part.(4) The prosecution may establish that an injured worker was dismissed because the worker was not fit for employment as a result of the injury if the prosecution establishes that the injury was a substantial and operative cause of the dismissal.(5) This section applies even if the worker became unfit for employment before the commencement of this section.
(cf IR Act, s 100)
This Part does not affect any other rights of a dismissed worker under this or any other Act or under any State industrial instrument or contract of employment.
(1) The following provisions of the Industrial Relations Act 1996 and the regulations made under that Act apply to and for the purposes of this Part (the applied provisions):(a) Part 7 of Chapter 5 (Entry and inspection by officers of industrial organisations),(b) Part 4 of Chapter 7 (Inspectors and their powers),(c) Part 5 of Chapter 7 (Evidentiary provisions),(d) Part 6 of Chapter 7 (Criminal and other legal proceedings),(e) any other provision prescribed by the regulations.(2) Accordingly, the applied provisions have effect as if they formed part of this Act.(3) For the purposes of the application of the applied provisions (but without limiting subsection (4) (a)), a reference in the applied provisions:(a) to this Act (that is, the Industrial Relations Act 1996) is to be read as a reference to this Part, and(b) to the regulations is to be read as a reference to the regulations under this Act, and(c) to the industrial relations legislation includes a reference to this Part, and(d) to employment is to be read as a reference to employment of an injured worker, and(e) to an employer is to be read as a reference to an employer within the meaning of this Part, and(f) to employees is to be read as a reference to injured workers,as the case requires.(4) The applied provisions have effect:(a) subject to such modifications as are prescribed by this Part or the regulations, and(b) despite any other provisions of this Act that make provision for matters for which the applied provisions make provision.(5) In this section:modification includes addition, exception, omission or substitution.