Workplace Injury Management and Workers Compensation Act 1998 No 86
Current version for 24 November 2014 to date (accessed 20 December 2014 at 20:43)
Chapter 1

Chapter 1 Preliminary

1   Name of Act

This Act is the Workplace Injury Management and Workers Compensation Act 1998.

2   Commencement

This Act commences on a day or days to be appointed by proclamation.

3   System objectives

The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives:
(a)  to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury,
(b)  to provide:
•  prompt treatment of injuries, and
•  effective and proactive management of injuries, and
•  necessary medical and vocational rehabilitation following injuries,
in order to assist injured workers and to promote their return to work as soon as possible,
(c)  to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,
(d)  to be fair, affordable, and financially viable,
(e)  to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work,
(f)  to deliver the above objectives efficiently and effectively.

4   Definitions

(cf 1987 s 3; 1989 s 3)

(1)  In this Act:

approved medical specialist has the meaning given by section 319.

Arbitrator means an Arbitrator of the Commission appointed under this Act.

Authority means the WorkCover Authority of New South Wales constituted under this Act.

Board means the Safety, Return to Work and Support Board established under the Safety, Return to Work and Support Board Act 2012.

Chief Executive Officer means the person employed in the Public Service as the Chief Executive Officer of Safety, Return to Work and Support.

claim means a claim for compensation or work injury damages that a person has made or is entitled to make.

claimant means a person who makes or is entitled to make a claim.

coal miner matter means any matter arising under the Workers Compensation Acts concerning a claim in respect of a worker employed in or about a mine.

Commission means the Workers Compensation Commission of New South Wales established by this Act.

compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.

Compensation Court means the Compensation Court of New South Wales constituted under the Compensation Court Act 1984.

death benefit compensation means compensation under Division 1 (Compensation payable on death) of Part 3 of the 1987 Act.

dependants of a worker means such of the members of the worker’s family as were wholly or in part dependent for support on the worker at the time of the worker’s death, or would but for the incapacity due to the injury have been so dependent, and includes:

(a)  a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in the place of a parent to the worker, and
(b)  a divorced spouse of the worker so dependent, and
(c)  a person so dependent who:
(i)  in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—although not legally married to the worker, lived with the worker as the worker’s husband or wife on a permanent and genuine domestic basis, or
(ii)  in relation to an injury received after that commencement—is the de facto partner of the worker.
Note. “De facto partner” is defined in section 21C of the Interpretation Act 1987.

Deputy President means a Deputy President of the Commission.

doctor means a medical practitioner.

dust disease has the same meaning as it has in the Workers’ Compensation (Dust Diseases) Act 1942.

employer includes:

(a)  the legal personal representative of a deceased employer, or
(b)  a government employer, or
(c)  a former employer.
Without limiting the meaning of the expression, an employer can be an individual, a corporation, a firm, an unincorporated body of persons, a government agency or the Crown.

exercise a function includes perform a duty.

existing claim has the same meaning as in Chapter 7 (New claims procedures).

existing claim matter has the same meaning as in Chapter 7 (New claims procedures).

financial year means a year commencing 1 July.

former 1926 Act means the Workers’ Compensation Act 1926.

former licensed insurer means a person (not being a licensed insurer) who:

(a)  was previously a licensed insurer under this Act, the 1987 Act or section 27 of the former 1926 Act, and
(b)  continues to have liabilities under policies of insurance previously issued or renewed by the person.

function includes a power, authority or duty.

government agency means any department, person or body exercising executive or administrative functions on behalf of the Government.

government employer means the Crown or any government agency, and includes:

(a)  a public health organisation within the meaning of the Health Services Act 1997, and
(b)  an employer prescribed by the regulations.

government worker means a worker whose employer is a government employer.

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth.

incapacity includes a disfigurement that is sufficient to affect the earning capacity of a worker or a worker’s opportunities for employment.

Independent Review Officer means the WorkCover Independent Review Officer appointed under Part 3 of Chapter 2.

injury:

(a)  means a personal injury arising out of or in the course of employment, and
(b)  includes:
(i)  a disease contracted by a worker in the course of employment, where the employment was a contributing factor to the disease, or
(ii)  the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, but
(c)  does not include (except in the case of a worker employed in or about a mine):
(i)  a dust disease, or
(ii)  the aggravation, acceleration, exacerbation or deterioration of a dust disease.

insurance includes indemnity.

lump sum compensation means compensation under Division 4 (Compensation for non-economic loss) of Part 3 of the 1987 Act.

mediator means a person appointed as a mediator under section 318F.

medical assessment means assessment of a medical dispute by an approved medical specialist under Part 7 of Chapter 7.

medical certificate means a certificate given by a medical practitioner.

medical dispute has the meaning given by section 319.

medical expenses compensation means compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of the 1987 Act.

member of a family means wife or husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister.

motor accident damages means damages to which Part 6 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999 applies.

new claim has the same meaning as in Chapter 7 (New claims procedures).

new claim matter has the same meaning as in Chapter 7 (New claims procedures).

pain and suffering compensation means compensation for pain and suffering under section 67 of the 1987 Act.

permanent impairment compensation means compensation for permanent impairment under section 66 of the 1987 Act.

policy of insurance means a policy of insurance that an employer obtains under the 1987 Act or the former 1926 Act.

premium income:

(a)  in relation to contributions payable under this Act or the 1987 Act by an insurer (other than a specialised insurer) in respect of a financial year—means the amount the insurer receives during that financial year as premiums in respect of policies of insurance issued or renewed by the insurer (whether the policies are issued or renewed during that financial year or during a previous financial year), or
(b)  in relation to contributions payable under this Act or the 1987 Act by a specialised insurer in respect of a financial year—means the amount the insurer receives, whether during or after that financial year, as premiums in respect of policies of insurance issued or renewed by the insurer during that financial year,
and, in relation to contributions payable by any insurer, includes any amount comprising or attributable to GST and any amount prescribed by the regulations as included for the purposes of this definition in relation to that financial year, but does not include any amount prescribed by the regulations as excluded for the purposes of this definition in relation to that financial year.

President means the President of the Commission.

Presidential member means the President or a Deputy President.

records includes books, accounts, minutes, registers, deeds, documents and any other sources of information compiled, recorded or stored in written form, on microfilm, by electronic process or in any other manner.

Registrar means the Registrar of the Commission appointed under this Act.

related body corporate has the same meaning as it has in the Corporations Act 2001 of the Commonwealth.

Rules means the Rules of the Commission made by the Minister under this Act.

Self Insurance Corporation means the NSW Self Insurance Corporation constituted by the NSW Self Insurance Corporation Act 2004.

spouse of a person means:

(a)  in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—a husband or wife of the person, or
(b)  in relation to an injury received after that commencement:
(i)  a husband or wife of the person, or
(ii)  a de facto partner of the person.

the 1987 Act means the Workers Compensation Act 1987.

training contract has the meaning it has in the Apprenticeship and Traineeship Act 2001.

Note. A training contract is a contract entered into for the purpose of establishing an apprenticeship or traineeship.

weekly payment, in relation to compensation, means a weekly payment of compensation under Division 2 of Part 3 of the 1987 Act in respect of a period of total or partial incapacity for work.

work health and safety legislation means:

(a)  the Work Health and Safety Act 2011 and the instruments under that Act, or
(b)  any other Act or instrument (or part) prescribed by the regulations under this Act.

work injury means an injury in respect of which compensation is payable.

work injury damages has the same meaning as in Chapter 7 (New claims procedures).

WorkCover Authority Fund means the WorkCover Authority Fund established under this Act.

WorkCover Guidelines means guidelines issued under section 376 (Issue of guidelines).

worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). However, it does not include:

(a)  a member of the NSW Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906, or
(b)  a person whose employment is casual (that is for 1 period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer’s trade or business, or
(c)  an officer of a religious or other voluntary association who is employed upon duties for the association outside the officer’s ordinary working hours, so far as the employment on those duties is concerned, if the officer’s remuneration from the association does not exceed $700 per year, or
(d)  except as provided by Schedule 1, a registered participant of a sporting organisation (within the meaning of the Sporting Injuries Insurance Act 1978) while:
(i)  participating in an authorised activity (within the meaning of that Act) of that organisation, or
(ii)  engaged in training or preparing himself or herself with a view to so participating, or
(iii)  engaged on any daily or periodic journey or other journey in connection with the registered participant so participating or the registered participant being so engaged,
if, under the contract pursuant to which the registered participant does any of the things referred to above in this paragraph, the registered participant is not entitled to remuneration other than for the doing of those things.

Workers Compensation Acts means this Act and the 1987 Act.

workers compensation legislation means:

(a)  this Act and the instruments under this Act, or
(b)  the 1987 Act and the instruments under that Act, or
(c)  the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 and the instruments under that Act, or
(d)  the Workers’ Compensation (Dust Diseases) Act 1942 and the instruments under that Act, or
(e)  any other Act or instrument (or part) prescribed by the regulations.

(2) Extended meaning of injured worker
A reference in this Act to a worker who has been injured includes, if the worker is dead, a reference to the worker’s legal personal representative, or the worker’s dependants, or any other person to whom or for whose benefit compensation is payable.
(3) Notes
Notes in the text of this Act do not form part of this Act.
(4)  (Repealed)
(5) Meaning of “related”
The following provisions have effect for the purposes of this section:
(a)  Persons are related if:
(i)  one is the parent, or another ancestor, of the other, or
(ii)  one is the child, or another descendant, of the other, or
(iii)  they have a parent in common.
(b)  For the purposes of paragraph (a):
(i)  a person is taken to be an ancestor or descendant of another person even if the relationship between them is traced through, or to, a person who is or was an adopted child, and
(ii)  the relationship of parent and child between an adoptive parent and an adopted child is taken to continue even though the order by which the adoption was effected has been annulled, cancelled or discharged or the adoption has otherwise ceased to be effective, and
(iii)  the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, is taken to be or to have been the natural relationship of child and parent, and
(iv)  a person who has been adopted more than once is taken to be the child of each person by whom he or she has been adopted.
(c)  In paragraph (b), adopted means adopted under the law of any place, whether in Australia or not, relating to the adoption of children.
(5A)  Subsection (5) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order.
(6) Certain references to “mines”
A reference to a mine in the definitions of coal miner matter and injury is a reference to a mine within the meaning of the Coal Mines Regulation Act 1982 as in force immediately before its repeal by the Coal Mine Health and Safety Act 2002, but does not include a reference to any place that, in accordance with section 8 (3) of the Coal Mine Health and Safety Act 2002, is a place to which that Act does not apply.
Note. Section 2A of the 1987 Act provides that the 1987 Act is to be construed with, and as if it formed part of, this Act. Accordingly, a reference in this Act to this Act generally includes a reference to the 1987 Act.

5   Deemed employment of workers

(cf 1987 s 5)

Schedule 1 has effect.

6   Application of Act in certain respects

(cf 1987 s 3 (3), (4), (5))

(1) Public or local authority
For the purposes of this Act, the exercise of the functions of a public or local authority is taken to be its trade or business.
(2) Racing or recreation club
For the purposes of this Act, the operations of a racing or recreation club are taken to be its trade or business.
(3) NSW Police Force
For the purposes of this Act, the Crown is taken to be the employer of members of the NSW Police Force.
Note. Members of the NSW Police Force who are contributors to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906 are not workers within the meaning of this Act. That fund was closed to new members on and from 1 April 1988. Accordingly members of the NSW Police Force who are not contributors to that fund are workers within the meaning of this Act.

7   Act binds Crown

(cf 1987 s 6)

(1)  This Act binds the Crown in right of New South Wales and also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.
(2)  (Repealed)

8   Certain Acts not affected

(cf 1987 s 7)

Nothing in this Act affects the operation of the following Acts:

Workers’ Compensation (Dust Diseases) Act 1942,

Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987.

9   (Repealed)

9A   Application of Act in respect of coal industry

(1)  The workers compensation company (within the meaning of the Coal Industry Act 2001) is taken to be a licensed insurer that is a specialised insurer under, and for the purposes of, this Act.
(2)  However, the following provisions of this Act do not apply to or in respect of the workers compensation company:
(a)  sections 146 and 146A,
(b)  Parts 3, 4, 5, 6, 7, 8 and 9 of Chapter 5.
(3)  For avoidance of doubt:
(a)  an employee of an employer in the coal industry is not eligible to make a claim under Part 9 of Chapter 5, and
(b)  a person who is taken, under Schedule 1, to be a worker employed by another person is not entitled to make a claim referred to in paragraph (a) if the other person by whom the person is taken to be employed is engaged in the coal industry.
(4)  The workers compensation company is taken to be the insurer under this Act of all employers in the coal industry (whether or not any such employer maintains a policy of insurance with that company).
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