Workers Compensation Act 1987 No 70
Part 4 Uninsured liabilities
Editorial note.See now Workplace Injury Management and Workers Compensation Act 1998 No 86.
Division 6 Uninsured liabilities
(cf former s 18C (35))
In this Division—employer, in relation to a worker, includes a principal within the meaning of section 20 who is liable to pay compensation to the worker.the relevant time, in relation to an injured worker, means the time of the happening of that worker’s injury.
140 Persons eligible to make claims
(cf former s 18C (2)–(6))
(1) A claim under this Division may be made against the Nominal Insurer by any person who considers he or she has a claim against an employer for compensation under this Act or work injury damages in respect of an injury to a worker, if—(a) the employer is uninsured, or(b) the person claiming the compensation has been unable, after due search and inquiry, to identify the relevant employer.(2) An employer is considered to be uninsured if the employer—(a) had not obtained, or was not maintaining in force, a policy of insurance for the full amount of the employer’s liability under this Act in respect of the injured worker at the relevant time, or(b) having been a self-insurer at the relevant time, has ceased to undertake liability to pay compensation to the employer’s own workers (but only if the claim cannot be paid under section 216 from any money deposited with the Authority or under any arrangement relating to the refund of any such deposit).(2A) A claim may not be made under this Division in respect of a claim for work injury damages against a person who is an employer as a result of being a principal within the meaning of section 20 who is liable to pay compensation to the worker.(2B) The regulations may prescribe the searches and inquiries necessary to constitute due search and inquiry to identify an employer for the purposes of this section.(3) If a payment is made by the Nominal Insurer in respect of a claim under this Division and the employer is subsequently identified, the Nominal Insurer may recover the amount paid from the employer or the employer’s insurer in the manner provided by this Division.(4) A claim shall not be made under this Division if the person claiming the compensation is entitled under section 20 to claim compensation against a principal within the meaning of section 20.(5) If a person is entitled to claim compensation against a principal within the meaning of section 20 and the principal was not maintaining in force a policy of insurance for the full amount of the principal’s liability under this Act at the relevant time—(a) the person may make to the Nominal Insurer a claim for compensation under this Division, and(b) the Nominal Insurer may deal with any such claim as it thinks fit.(6) The Nominal Insurer is to notify the Authority of any claim made under subsection (5).
141 Making of claims
(cf former s 18C (7)–(9))
(1) Claims under this Division shall be made in the form and manner for the time being determined by the Nominal Insurer.(2) The Nominal Insurer may, by notice, require an employer to furnish to the Authority and to the Nominal Insurer within the period (being not less than 7 days) specified in the notice any information described in the notice which—(a) is available to the employer, and(b) is required by the Nominal Insurer in order for it to deal with a claim under this Division.(3) An employer shall comply with a notice given under subsection (2).Maximum penalty—20 penalty units.(4) In this section—employer includes any person whom the Nominal Insurer has reason to suspect is an employer.
142 Publication of claims etc
(cf former s 18C (10)–(13))
(1) The Nominal Insurer may, before considering a claim under this Division, publish a notice of the claim in such manner as the Nominal Insurer considers appropriate.(2) If notice of a claim is so published, any person who, without reasonable cause, fails to notify the Nominal Insurer within the time specified in the notice that the person is the insurer of the liability in respect of the claim of any person who is an employer within the meaning of this Division in respect of the claimant, or who fails to supply the Nominal Insurer with any information it has which may be material to the matter—(a) is liable to reimburse the Insurance Fund such amount as the Nominal Insurer has paid out in respect of the claim and any costs incurred in connection with the claim, and(b) is guilty of an offence and liable to a penalty not exceeding 100 penalty units.(3) If, in respect of a claim under this Division, a licensed insurer with whom the Nominal Insurer considers the injured worker’s employer had a relevant policy of insurance at the relevant time is located, the following provisions apply—(a) the Nominal Insurer shall supply the insurer with all relevant details of the claim,(b) the insurer shall, within 14 days of being advised of the claim, either accept or deny liability to indemnify the employer,(c) if the insurer accepts liability to indemnify the employer, the Nominal Insurer shall—(i) inform the claimant of the existence of the insurance, and(ii) transfer the claim documents to the insurer,(d) if the insurer denies liability to indemnify the employer, or does not either accept or deny liability to indemnify the employer within 14 days of being advised of the claim, the Nominal Insurer shall deal with the claim in the manner provided by this Division.(4) For the purposes of subsection (3), licensed insurer means a specialised insurer or self-insurer.
142A Nominal Insurer becomes insurer for claims
(1) Subject to this section and the regulations, the provisions of this Act and the 1998 Act apply to and in respect of a claim under this Division as if the Nominal Insurer were the insurer under this Act of the relevant employer at the relevant time.(2) The regulations may prescribe modifications to the provisions of this Act and the 1998 Act for the purposes of their application under this section to and in respect of a claim under this Division.(3) A claim under this Division for work injury damages cannot be made until a claim under this Division for lump sum compensation in respect of the injury has been made and determined.
142B Proceedings before Commission on claim for compensation
(1) On an application to the Commission for a determination of a claim for compensation under this Division, or on the commencement of proceedings in a court in respect of a claim for work injury damages under this Division—(a) the applicant must name the employer by whom the applicant alleges compensation is payable and the Nominal Insurer as respondents to, or defendants in, the proceedings, and(b) the Nominal Insurer may, by service of a notice on any person who, in the opinion of the Nominal Insurer, may be liable to pay to the applicant compensation under this Act (or may have insured that liability), join that person as a party to the proceedings.(2) The Commission may make orders providing for the reimbursement of the Insurance Fund under section 145.
145 Employer or insurer to reimburse Insurance Fund
(cf former s 18C (21)–(26))
(1) The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was—(a) in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, ora notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.(b) an insurer under this Act of such an employer,(2) The Nominal Insurer may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the Insurance Fund an amount, if the Nominal Insurer, in respect of the amount, is satisfied that—(a) the amount is beyond the capacity of the employer to pay,(b) the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time,(c) the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy,(d) the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up,(e) the employer, being a corporation, has been dissolved, or(f) it would not be commercially feasible for the Nominal Insurer to attempt to recover the amount.(3) A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.(4) The Commission may hear any such application and may—(a) make such determination in relation to the application, andas the Commission thinks fit.(b) make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned,(4A) The Commission is not authorised to make a determination that waives the liability of an employer under subsection (1) to reimburse the Insurance Fund or that limits or otherwise affects any function of the Nominal Insurer to decide whether or not any such liability should be waived.(5) In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that—(a) the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, andis (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.(b) a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,(6) The Nominal Insurer may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction.(7) An order by the Commission that the Nominal Insurer is to be reimbursed by a person named in the determination concerned may be enforced under section 362 of the 1998 Act.
145A Recovery from directors of corporations liable to reimburse Insurance Fund
(1) If a corporation is liable to reimburse the Insurance Fund an amount for a payment made in respect of a claim under this Division and the amount is not recoverable from the corporation, the Nominal Insurer is entitled to recover the amount from a person who was a culpable director of the corporation at the relevant time.(2) A corporation is considered to be liable to reimburse the Nominal Insurer an amount for such a payment if the Nominal Insurer is entitled to recover the amount either under section 145 or under an order of the Commission made on application under that section, even if the corporation has ceased to exist.(3) An amount is considered to be not recoverable from a corporation if the Nominal Insurer certifies that it will be unable or unlikely to recover the amount from the corporation by reasonable efforts at recovery, whether because the corporation is being wound up and is unable to pay its debts, or otherwise.(4) A person is a culpable director of a corporation at the relevant time if—(a) the corporation contravened section 155 (Compulsory insurance for employers) in respect of a policy of insurance that would have covered the corporation for the liability to which the payment made in respect of the claim under this Division related (whether or not the corporation has been proceeded against or convicted of an offence for the contravention), and(b) at the time of the contravention the person was a director of the corporation.(5) A person is not a culpable director of a corporation if the person establishes that—(a) the corporation contravened section 155 without the person’s knowledge, or(b) the person was not in a position to influence the conduct of the corporation in relation to that contravention, or(c) the person, being in such a position, used all due diligence to prevent the contravention by the corporation.(6) If there is a right of recovery against more than one director of a corporation in respect of the same amount, the right is a right against all those directors jointly and severally.(7) A director from whom an amount is recovered under this section is entitled to recover the amount from the corporation.
146 Commutation of weekly payments
(1) (Repealed)(2) A liability in respect of a claim under this Division may not be commuted to a lump sum with the agreement of the worker unless the Nominal Insurer—(a) has given the employer notice of the proposed agreement and has given the employer a reasonable opportunity to make submissions to the Nominal Insurer with respect to the matter, and(b) has taken into account any submissions so made to the Nominal Insurer.(3) Subsection (2) does not apply if the worker has been unable, after due search and inquiry, to identify the relevant employer.(4) In the case of commutation by determination of the Commission under section 87G (Commutation when worker legally incapacitated), the Commission may on the application of the employer, if the Commission thinks fit, refuse to make such a determination in respect of a liability that is the subject of a claim under this Division.(5) The making of such an application by the employer in no way fetters the discretion of the Commission to make the determination, and a commutation made in consequence of the determination is binding on the employer whether or not the employer has made such an application.(6) The Nominal Insurer may apply for registration of a commutation agreement under section 87H as a party to the agreement.
147 Miscellaneous provisions
(cf former ss 18C (30)–(34), 18D)
(1) If an award of compensation or work injury damages is made that is the subject of a claim under this Division, the Nominal Insurer may cause to be made such inquiries as it thinks fit to determine the genuineness of the grounds on which the award is sought or was based if—(a) the employer did not appear and defend the proceedings for the award of compensation or work injury damages, or(b) the award of compensation or work injury damages was made before the making of the claim under this Division and was obtained in default of appearance by the employer, or by consent of the worker and the employer, or(c) the Nominal Insurer thinks that any such inquiries should be made for any reason it thinks fit.(2) The Commission or a court before which the proceedings are taken may adjourn proceedings referred to in subsection (1) or, if an award has been made, may reopen the proceedings and order some fit person to take and defend the proceedings in substitution for the employer, and for those purposes all the rights of the employer are subrogated to that person.(3) A lump sum payable to a claimant in respect of a claim under this Division may by agreement with the Nominal Insurer, or by order of the Commission or a court, be paid to the Nominal Insurer to be invested, applied, paid out or otherwise dealt with as agreed upon or ordered or, subject to any such agreement or order, as provided by section 85.(4) In any proceedings before the Commission or a court under this Division, the Nominal Insurer or its representative (being a barrister, solicitor, officer of the Authority or other person) may appear before the Commission or court and exercise in respect of any matters and questions arising out of the application the same powers, rights and authorities as an employer may exercise in respect of a claim between a worker and an employer under this Act.(5) The following matters are declared to be excluded matters for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the provisions of sections 471B and 500 (2) of that Act—(a) an application by a person for an award of compensation or work injury damages,(b) a person proceeding with such an application.Note.In the absence of this subsection, sections 471B and 500 (2) of the Corporations Act 2001 of the Commonwealth would require the leave of a Court to make or proceed with an application for compensation or work injury damages against certain companies that are being externally administered. This section ensures that section 5F of that Act will operate to ensure that those sections will not require the leave of the Court directing the external administration before an application can be made or proceeded with.(6) Any award of compensation or work injury damages made pursuant to an application authorised by this section has effect only for the purposes of this Division and not otherwise.
148 Application of other provisions of Act
(1) For the purposes of section 13 (3), the Nominal Insurer is to have the same entitlement to recover payments it has made to a worker in respect of a claim under this Division as an employer has in respect of payments the employer has made to a worker under section 13.(2) If a worker has received payments in respect of a claim under this Division, the payments are to be treated as compensation or work injury damages (as appropriate) recovered by the worker for the purposes of—(a) section 64 of the former Act as continued in operation by clause 1 (2) of Part 14 of Schedule 6 to this Act, and(b) section 151Z of this Act.(3) The regulations may provide for the application (with such modifications as may be prescribed) of other provisions of this Act with respect to any matter arising under this Division.
148A Nominal Insurer’s right of subrogation
If the Nominal Insurer has paid or is liable to pay an amount as compensation for which an employer is liable under this Act or the former Act or an amount of work injury damages for which an employer is liable, the Nominal Insurer is subrogated to any right of the employer and any insurer of the employer to recover any amount from any other person in respect of that payment (had the payment been made by the employer or insurer), whether the right arises by way of a liability for contribution, apportionment of liability or otherwise.