10–13(Repealed)
Part 2 WorkCover Authority of New South Wales
Division 1 Constitution of Authority
(1) There is constituted by this Act a corporation with the corporate name of the WorkCover Authority of New South Wales.(2) The Authority is, for the purposes of any Act, a statutory body representing the Crown.
Division 2 Management of Authority
(cf 1989 s 9)
The Board and the Chief Executive Officer are, in the exercise of their respective functions under this or any other Act to the extent they relate to the Authority, subject to the control and direction of the Minister, except in relation to the contents of any advice, report or recommendation given to the Minister.Note. See also the Safety, Return to Work and Support Board Act 2012 which includes other provisions relating to the management of the Authority.
(cf 1989 s 11)
(1) The Authority may delegate to an authorised person any of the functions of the Authority (other than this power of delegation).(2) A delegate may sub-delegate to an authorised person any function delegated by the Authority if the delegate is authorised in writing to do so by the Authority.(3) In this section:authorised person means:
(a) a member of staff of the Authority, or(b) a person of a class prescribed by the regulations or of a class approved by the Board.
Division 3 Functions of Authority
22 General functions of Authority
(cf 1989 s 12)
(1) The general functions of the Authority are:(a) to be responsible for ensuring compliance with the workers compensation legislation and the work health and safety legislation,(b) to be responsible for the day to day operational matters relating to the schemes to which any such legislation relates,(c) to monitor and report to the Minister on the operation and effectiveness of the workers compensation legislation and the work health and safety legislation, and on the performance of the schemes to which that legislation relates,(d) to undertake such consultation as it thinks fit in connection with current or proposed legislation relating to any such scheme as it thinks fit,(d1) to monitor and review key indicators of financial viability and other aspects of any such schemes,(e) to report and make recommendations to the Minister on such matters as the Minister requests or the Authority considers appropriate.(2) The Authority has such other functions as are conferred or imposed on it by or under the workers compensation legislation, the work health and safety legislation or any other legislation.(3) In exercising its functions, the Authority must:(a) promote the prevention of injuries and diseases at the workplace and the development of healthy and safe workplaces, and(b) promote the prompt, efficient and effective management of injuries to persons at work, and(c) ensure the efficient operation of workers compensation insurance arrangements, and(d) ensure the appropriate co-ordination of arrangements for the administration of the schemes to which the workers compensation legislation or the work health and safety legislation relates.(4) The Authority cannot employ any staff.Note. Staff may be employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the Government Service to enable the Authority to exercise its functions. Under section 4K of that Act, a reference in this Act to a member of staff of the Authority is a reference to staff so employed or to persons of whose services the Authority makes use.
(cf 1989 s 13)
(1) The Authority has, in particular, the following functions:(a) to initiate and encourage research to identify efficient and effective strategies for the prevention and management of work injury and for the rehabilitation of injured workers,(b) to ensure the availability of high quality education and training in such prevention, management and rehabilitation,(c) to develop equitable and effective programs to identify areas of unnecessarily high costs in or for schemes to which the workers compensation legislation or the work health and safety legislation relates,(d) to foster a co-operative relationship between management and labour in relation to the health, safety and welfare of persons at work,(e) (Repealed)(f) to identify (and facilitate or promote the development of programs that minimise or remove) disincentives for injured workers to return to work or for employers to employ injured workers, or both,(g) to assist in the provision of measures to deter and detect fraudulent workers compensation claims,(h) to develop programs to meet the special needs of target groups, including:• workers who suffer severe injuries• injured workers who are unable to return to their pre-injury occupation• injured workers who are unemployed• persons who live in remote areas• women• persons of non-English speaking background• persons who have a disability,(i) to facilitate and promote the establishment and operation of:• work health and safety committees at places of work• return-to-work programs,(j) to investigate workplace accidents,(k) to develop policies for injury management, worker rehabilitation, and assistance to injured workers,(l) to monitor the operation of requirements and arrangements imposed or made by or under the workers compensation legislation or the work health and safety legislation, including requirements and arrangements for all or any of the following:• injury management• worker rehabilitation• workers compensation insurance• workers compensation insurer licensing,and to commence and conduct prosecutions for offences in connection with any such requirements and arrangements,(m) to collect, analyse and publish data and statistics, as the Authority considers appropriate,(n) to provide advisory services to workers, employers, insurers and the general community (including information in languages other than English),(o) to provide funds for or in relation to:• measures for the prevention or minimisation of work injuries or diseases• work health and safety education,(p) to arrange, or facilitate the provision of, interpreter services to assist injured workers,(q) to provide and administer (subject to the regulations) a legal aid service for persons who are parties to proceedings relating to workers compensation.(r) (Repealed)(2) (Repealed)
23A Nominal Insurer functions of Authority
(1) The Authority has such additional functions as may be necessary or convenient for enabling the Authority to act for the Nominal Insurer and to ensure that the Nominal Insurer’s functions are able to be exercised without restriction by any of the Authority’s other functions.(2) When acting for the Nominal Insurer, the Authority has and may exercise all the functions of the Nominal Insurer and is not limited by any of the Authority’s other functions.(3) When acting for the Nominal Insurer, the Authority must exercise its functions so as to ensure the efficient exercise of the functions of the Nominal Insurer and the proper collection of premiums for policies of insurance and the payment of claims in accordance with this Act and the 1987 Act.
Part 3 WorkCover Independent Review Officer
Division 1 Administrative arrangements
24 Appointment of Independent Review Officer
(1) The Governor may appoint a WorkCover Independent Review Officer.(2) The Independent Review Officer holds office for such term not exceeding 5 years as may be specified in the instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.(3) The office of Independent Review Officer is a full-time office and the holder of the office is required to hold it on that basis, except to the extent permitted by the Governor.(4) The Independent Review Officer is entitled to be paid:(a) remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and(b) such travelling and subsistence allowances as the Minister may from time to time determine.(5) The Public Sector Employment and Management Act 2002 does not apply to the appointment of the Independent Review Officer, and the holder of that office is not, as holder, subject to that Act.(6) The staff of the Independent Review Officer are to be employed under Chapter 1A of the Public Sector Employment and Management Act 2002.
(1) The office of Independent Review Officer becomes vacant if the holder:(a) dies, or(b) completes a term of office and is not re-appointed, or(c) resigns the office by instrument in writing addressed to the Governor, or(d) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(e) becomes a mentally incapacitated person, or(f) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or(g) is removed from office under this section.(2) The Governor may remove the Independent Review Officer from office:(a) for misbehaviour, or(b) for incapacity, or(c) if the Independent Review Officer is absent from duty for a period in excess of his or her leave entitlement as approved by the Governor unless the absence is caused by illness or other unavoidable cause.(3) If the office of Independent Review Officer becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
26 Appointment of acting Independent Review Officer
(1) The Minister may, from time to time, appoint a person to act in the office of the Independent Review Officer during the illness or absence of the Independent Review Officer or during a vacancy in the office of the Independent Review Officer. The person, while so acting, has all the functions of the Independent Review Officer and is taken to be the Independent Review Officer.(2) The Minister may, at any time, remove a person from office as acting Independent Review Officer.(3) An acting Independent Review Officer is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine.
27 Functions of Independent Review Officer
The Independent Review Officer has the following functions:(a) to deal with complaints made to the Independent Review Officer under this Division,(b) to review work capacity decisions of insurers under Division 2 (Weekly compensation by way of income support) of Part 3 of the 1987 Act,(c) to inquire into and report to the Minister on such matters arising in connection with the operation of the Workers Compensation Acts as the Independent Review Officer considers appropriate or as may be referred to the Independent Review Officer for inquiry and report by the Minister,(d) to encourage the establishment by insurers and employers of complaint resolution processes for complaints arising under the Workers Compensation Acts,(e) such other functions as may be conferred on the Independent Review Officer by or under the Workers Compensation Acts or any other Act.
(1) A worker may complain to the Independent Review Officer about any act or omission (including any decision or failure to decide) of an insurer that affects the entitlements, rights or obligations of the worker under the Workers Compensation Acts.(2) The Independent Review Officer deals with a complaint by investigating the complaint and reporting to the worker and the insurer on the findings of the investigation, including the reasons for those findings. The Independent Review Officer’s findings can include non-binding recommendations for specified action to be taken by the insurer or the worker.(3) The Independent Review Officer is to deal with a complaint within a period of 30 days after the complaint is made unless the Independent Review Officer notifies the worker and the insurer within that period that a specified longer period will be required to deal with the complaint.(4) The Independent Review Officer may decline to deal with a complaint on the basis that it is frivolous or vexatious or should not be dealt with for such other reason as the Independent Review Officer considers relevant.
27B Requirement to provide information
(1) The Independent Review Officer may require an insurer or a worker who has applied for review of a work capacity decision of an insurer to provide specified information that the Independent Review Officer reasonably requires for the purposes of the exercise of any function of the Independent Review Officer.(2) It is a condition of an insurer’s licence that the insurer comply with a request for the provision of information under this section.(3) The Independent Review Officer can decline to deal with a complaint if the worker who makes the complaint fails to comply with a request to provide information to the Independent Review Officer.(4) The Authority must provide the Independent Review Officer with such information as the Independent Review Officer reasonably requires and requests for the purposes of the exercise of any function of the Independent Review Officer.
(1) As soon as practicable after 30 June (but before 31 December) in each year, the Independent Review Officer is to prepare and forward to the Minister a report on his or her activities for the 12 months ending on 30 June in that year.(2) The report is to be tabled in Parliament and for that purpose the Minister is to lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report.(3) The Minister is to give the Authority and insurers an opportunity to comment on the report before it is tabled in Parliament and may include with the report when it is tabled a statement as to the comments of the Authority and insurers.(4) The report is to include the following information:(a) the number and type of complaints made and dealt with under this Division during the year,(b) the sources of those complaints,(c) the number and type of complaints that were made during the year but not dealt with,(d) information on the operation of the process for review of work capacity decisions of insurers during the year and any recommendations for legislative or other improvements to that process,(e) such other information as the Independent Review Officer considers appropriate to be included or as the Minister directs to be included.(5) Matters included in a report must not identify individual workers.
The Independent Review Officer may delegate the exercise of any function of the Independent Review Officer (other than this power of delegation) to:(a) any member of staff of the Independent Review Officer, or(b) any person, or any class of persons, authorised for the purposes of this section by the regulations.
28–33(Repealed)
Division 1 WorkCover Authority Fund
(cf 1989 s 18)
The Authority is required to establish and maintain a WorkCover Authority Fund.
35 Payments into and from Fund
(cf 1989 s 19)
(1) The following is to be paid into the WorkCover Authority Fund:(a) money contributed by insurers, self-insurers and deemed insurers under Division 2,(a1) money approved by the Minister to be paid into the Fund from the Insurance Fund under subsection (1A),(b) money required to be paid into the Fund by or under this or any other Act,(c) all other money received by the Authority and not otherwise appropriated.(1A) The Minister may approve the payment into the Fund of amounts from the Insurance Fund having regard to the estimates, provisions and determinations made by the Authority under section 38 and any need for additional funding to provide for the proper exercise of the Authority’s functions.(2) The following is to be paid from the WorkCover Authority Fund:(a) the remuneration, allowances, office accommodation and other associated costs of the Chief Executive Officer, the Board and members of staff of the Authority, being an amount determined by the Chief Executive Officer on a proportionate basis in respect of the various relevant authorities within the meaning of the Safety, Return to Work and Support Board Act 2012,(b) (Repealed)(c) the remuneration of the Independent Review Officer and staff of the Independent Review Officer and costs incurred in connection with the exercise of the functions of the Independent Review Officer,(d) expenditure incurred by the Department of Industrial Relations in relation to the exercise of the functions of conciliators under this Act by conciliators who are officers of that Department, including the remuneration payable to those officers,(e) the remuneration (including allowances) of conciliators appointed under this Act who are not officers of the Department of Industrial Relations,(e1) the costs of operation of the Commission including the remuneration (and allowances) of the members and of the staff of the Commission, and the remuneration of approved medical specialists,(f) payments required to be made under section 35A (Residual and ongoing costs of Compensation Court jurisdiction),(g) all payments required to meet expenditure incurred in relation to the functions of the Authority,(h) all other money required by or under this or any other Act to be paid from the Fund.(3) The maximum amount payable from the WorkCover Authority Fund for the costs of operation of the Compensation Court is to be the amount determined by the Minister administering the Compensation Court Act 1984 after consultation with the Minister administering this Act.(4) The Authority may pay from the Fund into the Insurance Fund any amount by which the Authority determines the Fund to be in surplus from time to time. Any such surplus may be paid to the Insurance Fund by transfer of any investment held by the Fund (as an alternative to the payment of money).
35A Certain ongoing costs of Compensation Court jurisdiction
(1) The following costs are payable from the WorkCover Authority Fund:(a) the costs of operation of the Compensation Court (until the repeal of the Compensation Court Act 1984),(b) such of the costs of operation of the District Court, incurred on or before 30 June 2005, relating to matters that would have been matters within the jurisdiction of the Compensation Court (had the repeal Act not been enacted) as the Ministers agree are to be paid from the Fund, and(c) such of the ongoing costs of operation of the Compensation Court (those costs determined as if the repeal Act had not been enacted) as the Ministers agree are to be paid from the Fund, and(d) such other costs resulting from the operation of the repeal Act as the Ministers agree are to be paid from the Fund.(2) The costs of operation of a court include:(a) the remuneration (including allowances) of Judges of the court and of officers and employees of the public service employed in connection with the exercise of functions of the court, and(b) costs associated with the employment and remuneration of those Judges and officers and employees and of retired Judges of the court (such as contributions for and payments of pensions and superannuation benefits), and(c) court accommodation.(3) In this section:repeal Act means the Compensation Court Repeal Act 2002.
the Ministers means the Minister administering the District Court Act 1973 and the Minister administering this Act.
(cf 1989 s 20)
The Authority may invest money held by it:(a) in such manner as may be authorised by the Public Authorities (Financial Arrangements) Act 1987, or(b) if that Act does not confer power to invest money held by the Authority, in any other manner approved by the Minister with the concurrence of the Treasurer.
Division 2 Contributions to WorkCover Authority Fund
(cf 1987 s 258)
In this Division:Comcare employer means an employer who:
(a) is licensed under Part VIII of the Safety, Rehabilitation and Compensation Act 1988 of the Commonwealth after a declaration of eligibility under that Part made on the basis that the employer is a corporation carrying on business in competition with a Commonwealth authority or with another corporation that was previously a Commonwealth authority, and(b) would otherwise be required:(i) to obtain and maintain in force a policy of insurance pursuant to section 155 of the 1987 Act, or(ii) to be licensed as a self-insurer.deemed insurer means a corporation (other than a licensed insurer) that is a party to a claims transfer agreement under Division 6 (Transfer of claims) of Part 7 of the 1987 Act.
deemed premium income, in relation to the contribution payable by a self-insurer or Comcare employer under this Division for any period during a financial year, means the amount that the self-insurer or Comcare employer would have been liable to pay (in such circumstances as may be prescribed by the regulations) to a licensed insurer as premiums on policies of insurance that would otherwise be required under the 1987 Act during that period if the person were not a self-insurer or Comcare employer, and:
(a) includes any amount prescribed by the regulations for the purposes of this paragraph in relation to that financial year, and(b) does not include any amount prescribed by the regulations for the purposes of this paragraph in relation to that financial year.financial year, in relation to an insurer:
(a) includes the period after 4 pm on the day preceding the first day of the financial year, and(b) does not include the period after 4 pm on the last day of the financial year.insurer means a licensed insurer or a former licensed insurer who was previously a licensed insurer under this Act.
38 Assessment by Authority of amount to be contributed to Fund
(cf 1987 s 260)
The Authority is required, as soon as practicable in respect of each financial year:(a) to make an estimate of the total of the amounts already paid and the amounts to be paid from the WorkCover Authority Fund during that financial year, and(b) to determine what amounts, if any, are to be set aside as provision to meet expenditure from the Fund in future years, and specify for what purpose each such provision is being made, and(c) to 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 insurers, deemed insurers and Comcare employers under this Division, and(c1) to make an estimate of the amount required to be contributed to the Fund from the Insurance Fund during that financial year, and(d) to determine the total amount to be contributed to the Fund in respect of that financial year by insurers, deemed insurers and Comcare employers under this Division after having regard to:(i) the amounts standing to the credit of the Fund at the beginning of the year, including any amounts set aside in earlier years as provisions to meet expenditure in later years, and(ii) the amounts estimated under paragraph (c) to be received into the Fund during the year, and(iii) the amounts to be contributed to the Fund from the Insurance Fund during the year, and(e) to specify in writing the estimates, provisions and amounts to be contributed to the Fund by insurers, deemed insurers and Comcare employers.
39 Contributions to Fund by insurers and self-insurers
(cf 1987 s 261)
(1) Each insurer, deemed insurer and self-insurer must pay the contributions prescribed by this section to the Authority for payment into the WorkCover Authority Fund.(2) The contribution to be paid by an insurer in respect of each financial year is an amount equal to the percentage (determined by the Authority in accordance with this section) of the premium income of the 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 Authority in accordance with this section) of the deemed premium income of the self-insurer during the relevant period when the person was a self-insurer.(3A) The contribution to be paid by a deemed insurer, in respect of each financial year (being a financial year during the whole or part of which the person was a deemed insurer), is an amount determined by the Authority in accordance with the regulations.(4) The percentage determined by the Authority pursuant to subsections (2) and (3):(a) is to be such as, in the opinion of the Authority, will be sufficient to yield the total amount to be contributed to the Fund by insurers and self-insurers in respect of the relevant financial year as determined pursuant to section 38, and(b) is to be the same percentage for all insurers and for all self-insurers, and(c) (Repealed)(5) A contribution by an insurer is payable at such times and in respect of premium income received during such periods in such manner as may be determined by the Authority and notified to the insurer.(6) A contribution by a self-insurer or deemed insurer is payable in such instalments and at such times as may be determined by the Authority and notified to the self-insurer or deemed insurer.(6A) The Authority may, at any time during or after a financial year, re-determine the percentages determined pursuant to subsections (2) and (3) in respect of the financial year if the estimated total amount of premium income and deemed premium income for the financial year is less than the previously estimated amount on which the original determination of the percentage was based.(6B) If a percentage is re-determined, the Authority is to make the necessary adjustments to the contributions payable by insurers and self-insurers.(7) If a contribution payable by an insurer or deemed insurer has not been paid within the time prescribed by or under this section:(a) the insurer or deemed insurer is guilty of an offence and liable to a penalty not exceeding 100 penalty units, and(b) the amount of that contribution together with a late payment fee calculated at the rate of 15 per cent of that amount per annum compounded quarterly (or, where another rate is prescribed, that other rate) may be recovered by the Authority as a debt in any court of competent jurisdiction.(8) Subject to subsection (4), more than one percentage may be determined by the Authority for different portions of a financial year for the purposes of subsection (2) or (3).(9) A certificate executed by the Authority as to the amount of a contribution payable under this section by an insurer, self-insurer or deemed insurer specified in the certificate and the due date for payment is (without proof of its execution by the Authority) 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 or deemed insurer) to make a contribution under this section in respect of any period during which the person was a self-insurer or deemed insurer does not cease merely because the person subsequently ceases to be a self-insurer or deemed insurer.
39A Contributions to Fund by Comcare employers
(1) Each Comcare employer must pay the contributions prescribed by this section to the Authority for payment into the WorkCover Authority Fund.(2) The contribution to be paid by a Comcare employer, in respect of each financial year (being a financial year during the whole or part of which the person was a Comcare employer), is an amount equal to the percentage (determined by the Authority in accordance with this section) of the deemed premium income of the Comcare employer during the relevant period when the person was a Comcare employer.(3) The percentage determined by the Authority pursuant to subsection (2):(a) subject to paragraph (b), is to be such as, in the opinion of the Authority, will be sufficient to yield the total amount to be contributed to the Fund by Comcare employers in respect of the relevant financial year as determined pursuant to section 38, and(b) is to be 60%, or such other percentage (not exceeding 70%) as determined by the Authority by order, of the percentage determined in accordance with section 39, and(c) is to be rounded to 2 decimal places, and(d) is to be the same percentage for all Comcare employers.Example. If the percentage determined in accordance with section 39 is 4%, unless an order under subsection (3) (b) has been made, the percentage under subsection (2) will be (60% × 4% =) 2.40%.If the percentage determined in accordance with section 39 is still 4%, but an order under subsection (3) (b) has been made increasing that percentage to 62.1%, then the percentage under subsection (2) will be (62.1% × 4% = 2.484%, then rounded to the nearest two decimal places) 2.48%.
(4) A contribution by a Comcare employer is payable in such instalments and at such times as may be determined by the Authority and notified to the Comcare employer.(5) The Authority may, at any time during or after a financial year, re-determine the percentage determined pursuant to subsection (2) in respect of the financial year if the estimated total amount of premium income and deemed premium income for the financial year is less than the previously estimated amount on which the original determination of the percentage was based.(6) If a percentage is re-determined, the Authority is to make the necessary adjustments to the contributions payable by Comcare employers.(7) If a contribution payable by a Comcare employer has not been paid within the time prescribed by or under this section:(a) the Comcare employer is guilty of an offence and liable to a penalty not exceeding 100 penalty units, and(b) the amount of that contribution together with a late payment fee calculated at the rate of 15% of that amount per annum compounded quarterly (or, where another rate is prescribed, that other rate) may be recovered by the Authority as a debt in any court of competent jurisdiction.(8) Subject to subsection (3), more than one percentage may be determined by the Authority for different portions of a financial year for the purposes of subsection (2).(9) A certificate executed by the Authority as to the amount of a contribution payable under this section by a Comcare employer specified in the certificate and the due date for payment is (without proof of its execution by the Authority) admissible in proceedings under this section and is evidence of the matters specified in the certificate.(10) The obligation of a person (being a Comcare employer) to make a contribution under this section in respect of any period during which the person was a Comcare employer does not cease merely because the person subsequently ceases to be a Comcare employer.(11) This section does not apply to a Comcare employer on and from the date that the Comcare employer becomes subject to the Occupational Health and Safety (Commonwealth Employment) Act 1991 of the Commonwealth.
Division 3 Financial year of Authority
40 Financial year of Authority
(cf 1989 s 21)
(1) The financial year of the Authority is the year commencing on 1 July.(2) A different financial year may be determined by the Treasurer under section 4 (1A) of the Public Finance and Audit Act 1983.