Workplace Injury Management and Workers Compensation Act 1998 No 86
Current version for 22 November 2019 to date (accessed 13 July 2020 at 02:21)
Schedule 5
Schedule 5 Provisions relating to members of Commission
(Section 373)
1   Definition
In this Schedule, judicial office means the office of—
(a)  Magistrate, or
(b)  Judge of the District Court, or
(c)    (Repealed)
(d)  Judge of the Land and Environment Court, or
(e)  Judge of the Supreme Court.
2   Terms of appointment
(1)  Subject to this Act, a member of the Commission holds office for such period as is specified in the instrument of the member’s appointment.
(2)  The term of an appointment must not exceed 7 years in the case of a Presidential member or 5 years in the case of any other member.
(3)  A member is eligible for reappointment.
3   Protection and immunities of member
A member of the Commission has, in the performance of functions performed as a member, the same protection and immunities as a Judge of the District Court.
4   Remuneration
(1)  The following are entitled to be paid remuneration (including travelling and subsistence allowances) in accordance with the Statutory and Other Offices Remuneration Act 1975
(a)  a Presidential member,
(b)  the Registrar,
(c)  a Senior Arbitrator or any other Arbitrator appointed on a full-time basis by the instrument of appointment of the Arbitrator or by a later instrument executed by the Minister.
(2)  Any other Arbitrator is entitled to be paid such remuneration (including travelling and subsistence allowances) in respect of work done as a member of the Commission as the Minister may from time to time determine in respect of the Arbitrator.
5   Provisions where judicial officer is holding office as member
(1)  The appointment of a person who is the holder of a judicial office as a member, or service by a person who is the holder of a judicial office as a member, does not affect—
(a)  the person’s tenure of that judicial office, or
(b)  the person’s rank, title, status, remuneration or other rights or privileges as the holder of that judicial office.
(2)  The person’s service as a member is, for all purposes, taken to be service as the holder of that judicial office.
(3)  This clause is subject to clause 5A.
5A   Appointment of holder of judicial office as President
(1)  This clause applies to a retired or deceased President who, while holding that office, was a Judge of a court of record other than the Supreme Court.
(2)  The Judges’ Pensions Act 1953 applies to the retired or deceased President as if the judicial office held by the person while President was equivalent to the office of Judge of the Supreme Court.
(3)  In the application of the Judges’ Pensions Act 1953 to the retired or deceased President—
(a)  service by the person as President is taken to be service as a Judge of the Supreme Court, and
(b)  references to a Judge or judicial office include references to the person in his or her capacity as President and the office of President, and
(c)  references in that Act to notional judicial salary are, in relation to the person while President, references to the salary payable to a Supreme Court Judge.
6   Vacancy in office
(1)  The office of a member of the Commission becomes vacant if the member—
(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 Minister, or
(d)  is nominated for election as a member of the Legislative Council or of the Legislative Assembly or as a member of a House of Parliament or a legislature of another State or Territory or of the Commonwealth, or
(e)  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
(f)  becomes a mentally incapacitated person, or
(g)  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
(h)  in the case of the Registrar, ceases to hold any qualification required for the appointment of the Registrar, or
(i)  is removed from office under this clause.
(2)  The Minister may remove a member of the Commission from office for incapacity, incompetence or misbehaviour.
(3)    (Repealed)
7   Acting President
(1)  If the President is absent from duty, the most senior Deputy President is to be Acting President unless the Minister makes an appointment under subclause (2).
(2)  The Minister may appoint a Deputy President or other member to be Acting President during the absence of the President from duty.
(3)  The Minister may make any appointment for a particular absence or for any absence that occurs from time to time.
(4)  An Acting President has the functions of the President and anything done by an Acting President in the exercise of those functions has effect as if it had been done by the President.
(5)  In this clause, absence from duty includes a vacancy in the office of President.
7A   Acting Deputy Presidents
(1)  If a Deputy President is absent from duty, the Minister may appoint a person to be an Acting Deputy President during the absence of the Deputy President.
(2)  The Minister may make an appointment for a particular absence or for any absence that occurs from time to time.
(3)  The Minister may also appoint such additional Acting Deputy Presidents as the Minister determines may be necessary having regard to the workload of the Commission and the need for the proper and efficient exercise of its functions.
(4)  A person may be appointed as an Acting Deputy President only if the person is eligible to be appointed as a Deputy President.
(5)  An Acting Deputy President may be appointed for up to 12 months but may, despite the expiration of that period, complete or otherwise continue to deal with any matters relating to proceedings that have been heard, or partly heard, by the Acting Deputy President before the expiration of that period.
(6)  A retired judicial officer may be appointed as an Acting Deputy President even though that person has reached the age of 72 years (or will have reached that age before the appointment expires), but may not be so appointed for any period that extends beyond the day on which he or she reaches the age of 75 years.
(7)  An Acting Deputy President has the functions of a Deputy President and anything done by an Acting Deputy President in the exercise of those functions has effect as if it had been done by a Deputy President.
(8)  For the avoidance of doubt, an Acting Deputy President is a member of the Commission and is a Presidential member.
(9)  Clause 2 does not apply to an Acting Deputy President.
(10)  In this clause, absence from duty includes a vacancy in the office of Deputy President and an absence due to a Deputy President being Acting President in accordance with clause 7.
8   Seniority
(1)  The members of the Commission have seniority according to the following order of precedence—
(a)  the President,
(b)  Deputy Presidents according to the days on which their appointments took effect or, if the appointments of 2 of them took effect on the same day, according to the precedence assigned to them by their instruments of appointment,
(c)  Registrar,
(c1)  Senior Arbitrators according to the days on which their appointments took effect or, if the appointments of 2 of them took effect on the same day, according to the precedence assigned to them by their instruments of appointment,
(d)  other members according to the days on which their appointments took effect.
(2)  If a person is re-appointed under this Act, the person’s seniority is to be determined as if there had been no break in the person’s service.
9   Leave
(1)  The entitlement of a member of the Commission to annual and other leave is to be as stated in the instrument of the member’s appointment.
(2)  A member may be granted leave—
(a)  in the case of the President—by the Minister, and
(b)  in any other case—by the President.
10   Superannuation and leave—preservation of rights
(1)  In this clause—
eligible member means a member of the Commission who, immediately before holding that office, was a public servant or an officer or employee of a public authority declared by an Act or proclamation to be an authority to which this clause applies.
superannuation scheme means a scheme, fund or arrangement under which any superannuation or retirement benefits are provided and that is established by or under an Act.
(2)  An eligible member—
(a)  may continue to contribute to any superannuation scheme to which he or she was a contributor immediately before becoming an eligible member, and
(b)  is entitled to receive any payment, pension or gratuity accrued or accruing under the scheme, as if he or she had continued to be such a contributor during service as a member of the Commission.
(3)  Service by the eligible member as a member of the Commission is taken to be service as an officer in his or her previous employment for the purposes of any law under which the member continues to contribute to the scheme or by which an entitlement under the scheme is conferred.
(4)  The eligible member is to be regarded as an officer or employee, and the State is to be regarded as the employer, for the purposes of the scheme.
(5)  This clause ceases to apply to the eligible member if he or she becomes a contributor to another superannuation scheme, but the eligible member is not prevented from receiving a resignation benefit from the first superannuation scheme.
(6)  An eligible member retains any rights to annual leave, extended or long service leave and sick leave accrued or accruing in his or her previous employment.
(7)  An eligible member is not entitled to claim, under both this Act and any other Act, dual benefits of the same kind for the same period of service.
11   Effect of other Acts
(1)  The office of a member of the Commission is a statutory office and the provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to that office.
(2)  If by or under any Act provision is made—
(a)  requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or
(b)  prohibiting the person from engaging in employment outside the duties of that office,
the provision does not operate to disqualify the person from holding that office and also the office of a part-time member of the Commission or from accepting and retaining any remuneration payable to the person under this Act as a part-time member of the Commission.
12   Oaths
The Minister may require oaths to be taken by the President and any Deputy President of the Commission.
13   2010 Amending Act—saving of existing appointments
(1)  The substitution of section 368 of this Act by the Workers Compensation Amendment (Commission Members) Act 2010 does not affect the continuity in office of any member of the Commission holding office immediately before the commencement of that Act.
(2)  An Arbitrator holding office immediately before the commencement of that Act is eligible to be appointed as a Senior Arbitrator or on a full-time basis.