Time for change? Preparing for the upcoming Workers Compensation and Injury Management Act 2023

The Workers Compensation and Injury Management Act 1981 (WA) (old Act) will be replaced with the Workers Compensation and Injury Management Act 2023 (new Act). The transition to the new Act will occur on 1 July 2024. Importantly, the new Act will largely operate retrospectively meaning that, from 1 July 2024, the new Act will apply to all claims (including existing claims) in place of the previous Act. In this article we set out the key changes in the new Act and the overlap between the amendments and the Fair Work Act 2009 (Cth) (Fair Work Act).

Outline of key provisions in the new Act

Making and responding to claims for income compensation

For an individual to make a claim for income compensation, they must fall within the definition of ‘worker‘ in the new Act, which they will do if the individual:

1. entered into or works under a contract of service, whether express, implied, oral or written;
2. entered into a contract with a person to work as an apprentice or is in training; or
3. has contracted with a person for the performance of work.

Under the new Act, contractors who perform work, which is in the course of or incidental to a trade or business regularly carried on by the individual in the individual’s own name or under a business or firm name, will be excluded.

A claim for compensation must be made within 12 months after the injury occurs. The individual must report their injury to their employer and approach their treating medical practitioner for a first certificate of capacity. The worker must then complete a claim form and provide it to their employer who will have seven days to lodge with their insurer. If an employer fails to lodge the documents, a worker can now approach the insurer directly. Within 14 days of the employer providing the claim to the insurer, the insurer must provide a liability decision notice or a deferred decision notice.

Effect of the new Act on claims already made as of 1 July 2024

The new Act will operate as a continuation of the old Act. This means employers who have current WorkCover proceedings or claims which are disputed or pended, will need to consider the operation of the provisions under the new Act on their current matters.

During this transition period, if a claim under the old Act remains pended (and not deemed disputed) as of 1 July 2024, then on 1 July 2024 it is taken that a decision on liability has been deferred under the new Act and there may be a liability to commence provisional payments to the worker within a maximum of 14 days if liability cannot be determined. This could be a significant sum.

Certificates of capacity

Certificates of capacity under the new Act require an injured worker to attend a medical practitioner who is a treating medical practitioner, defined as a medical practitioner who provides primary medical treatment to the worker. Previously, an injured worker could obtain a medical certificate from any medical practitioner. Employers will no longer be able to require injured workers to attend medical practitioners nominated by the employer.

Return-to-work notice

Under the new Act, the employer will still have an obligation to implement a return-to-work program for injured workers. There will be an obligation on employers to consult with injured workers in the establishment of a return-to-work program, as soon as reasonably practicable. This process will allow for the employer and injured worker to consider all duties of the role. Injured workers will have a positive statutory obligation to comply with return-to-work requests made by their employer.

When an injured worker does return to pre-injury or other suitable duties and start to receive wages again, the employer will need to discuss with their insurer whether a return-to-work notice should be given to the worker. The return-to-work notice is designed to inform the worker that they are transitioning from income compensation entitlements to wages.

Return-to-work case conferences

The new Act allows for employers to require an injured worker to attend a return-to-work case conference. The employer must provide notice of the conference in writing and specify:

1. the time and place of the conference;
2. if the conference can be attended remotely; and
3. the requirement of the worker to participate and cooperate in the conference.

Settlement agreements

Under the new Act, to settle a compensation claim, the parties will need to register a settlement agreement. Whilst settlement will be permitted by payment of a lump sum, settlement agreements will not be able to include any payment of ‘damages’.

Workplace laws

Accrual of leave

Under the new Act, it is clearly outlined that leave entitlements and workers compensation can be taken at the same time. For any period, which a worker will be entitled to receive income compensation:

1. the worker will be entitled to take annual leave or long service leave;
2. the worker’s entitlement to receive income compensation will not be affected by the worker being entitled to, or taking, leave of that kind – these leave entitlements will be concurrent to the worker’s entitlement to income compensation;
3. the worker will accrue entitlements to annual leave, long service leave and sick leave while receiving income compensation – this clarifies a long-standing issue and will be consistent with legal precedent and most other jurisdictions; and
4. the worker will not be entitled to take sick leave.

Employees who have a workers compensation claim will still have access to sick leave. The new Act will require sick leave to be reinstated if the worker becomes entitled to income compensation for the period of sick leave.

Right to disconnect

The ‘right to disconnect’ amendments to the Fair Work Act will come into effect from 26 August 2024. The changes provide employees the right to refuse, monitor, read or respond to contact (or attempted contact) from their employer, where the contact is outside of the employee’s working hours, unless the refusal is unreasonable.

The Fair Work Commission will consider the following when determining if the refusal was reasonable:

1. the reason for the attempted contact;
2. if the employee compensated for being available during the period of contact or working additional hours outside of the ordinary hours worked;
3. the nature of the employee’s role and level of responsibility; and
4. the employee’s personal circumstances.

This amendment will not prevent an employer contacting an employee outside of their working hours, nor will it allow employees to ignore all out of hours communication.

The right to disconnect laws must be considered in light of the new Act, as an employer who contacts an employee should consider the frequency and intrusiveness of contacting an employee absent from duties and in receipt of income compensation, as it may result in a workers compensation claim.

Implications for employers – preparing for the changes

Employers should be taking steps now to review and update their policies and procedures to be compliant with the new Act as of 1 July 2024. Employers should also assess any current income compensation claims that they have on foot and consider how the new Act will apply retrospectively to those claims. For claims where liability has been pended, employers should discuss this with their employers’ liability insurer before 1 July 2024 to ensure that they are not captured unaware by the retrospective action of the new Act on those claims.

Our team can assist you in preparing for these changes.

This article was written by Erica Hartley, Partner, Bronte Lawrence, Partner, and Jackie Sorial, Law Graduate.