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Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2007

Schedule 1 Main amendments

Part 1 Amendments

Military Rehabilitation and Compensation Act 2004

1  Subsection 267(1)

Omit “exceed $4,600”, substitute “exceed the amount determined in accordance with subsection (3)”.

2  Subsection 267(1) (note)

Repeal the note.

3  At the end of section 267

Add:

             (3)  The maximum amount of compensation under subsection (1) is:

                     (a)  $9,000; or

                     (b)  if the regulations prescribe a higher amount—that amount.

Note:          The amount of $9,000 is indexed under section 404.

4  Paragraph 404(1)(m)

Repeal the paragraph, substitute:

                    (m)  paragraph 267(3)(a).

Safety, Rehabilitation and Compensation Act 1988

5  Subsection 4(1) (definition of disease )

Repeal the definition, substitute:

disease has the meaning given by section 5B.

6  Subsection 4(1) (definition of injury )

Repeal the definition, substitute:

injury has the meaning given by section 5A.

7  Subsection 4(1)

Insert:

retirement savings account means a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997 .

8  Subsection 4(1)

Insert:

significant degree has the meaning given by subsection 5B(3).

9  Subsection 4(1) (paragraph (a) of the definition of suitable employment )

Omit “in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment”, substitute “in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed”.

10  Subsection 4(1) (definition of superannuation scheme )

After “superannuation scheme under which”, insert “, or retirement savings account to which,”.

11  After section 5

Insert:

5A   Definition of injury

             (1)  In this Act:

injury means:

                     (a)  a disease suffered by an employee; or

                     (b)  an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

                     (c)  an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

             (2)  For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

                     (a)  a reasonable appraisal of the employee’s performance;

                     (b)  a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

                     (c)  a reasonable suspension action in respect of the employee’s employment;

                     (d)  a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

                     (e)  anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

                      (f)  anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

5B   Definition of disease

             (1)  In this Act:

disease means:

                     (a)  an ailment suffered by an employee; or

                     (b)  an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

             (2)  In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

                     (a)  the duration of the employment;

                     (b)  the nature of, and particular tasks involved in, the employment;

                     (c)  any predisposition of the employee to the ailment or aggravation;

                     (d)  any activities of the employee not related to the employment;

                     (e)  any other matters affecting the employee’s health.

This subsection does not limit the matters that may be taken into account.

             (3)  In this Act:

significant degree means a degree that is substantially more than material.

12  Paragraph 6(1)(b)

Repeal the paragraph, substitute:

                     (b)  while the employee was at the employee’s place of work, including during an ordinary recess, for the purposes of that employment; or

                     (c)  while the employee was temporarily absent from the employee’s place of work undertaking an activity:

                              (i)  associated with the employee’s employment; or

                             (ii)  at the direction or request of the Commonwealth or a licensee; or

                     (d)  while the employee was, at the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment; or

                     (e)  while the employee was at a place of education, except while on leave without pay, in accordance with:

                              (i)  a condition of the employee’s employment by the Commonwealth or a licensee; or

                             (ii)  a request or direction of the Commonwealth or a licensee; or

                            (iii)  the approval of the Commonwealth or a licensee; or

                      (f)  while the employee was at a place for the purpose of:

                              (i)  obtaining a medical certificate for the purposes of this Act; or

                             (ii)  receiving medical treatment for an injury; or

                            (iii)  undergoing a rehabilitation program provided under this Act; or

                            (iv)  receiving a payment of compensation under this Act; or

                             (v)  undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or

                            (vi)  receiving money due to the employee under the terms of his or her employment, being money that, under the terms of that employment or any agreement or arrangement between the employee and the Commonwealth or a licensee, is available, or reasonably expected by the employee to be available, for collection at that place.

13  Subsection 6(2)

Repeal the subsection, substitute:

          (1C)  For the purposes of paragraph (1)(d), travel between the employee’s residence and the employee’s usual place of work is taken not to be at the direction or request of the Commonwealth or a licensee.

             (2)  In paragraph (1)(d), the reference to the employee travelling does not include a reference to travelling to or from a place mentioned in paragraph (1)(e) or (f).

14  Subsections 7(1), (2) and (3)

Omit “in a material degree”, substitute “, to a significant degree,”.

15  After subsection 8(9D)

Insert:

          (9E)  The normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, must, with effect from 1 July in each year, be further increased by the amount under subsection (9F) if, in the 12 months immediately preceding that 1 July:

                     (a)  there was no increase in those earnings under subsection (6), (7) or (9); and

                     (b)  there was no reduction in those earnings under subsection (9).

           (9F)  If the normal weekly earnings of an employee before an injury must be increased because of subsection (9E), the amount by which they are increased is the percentage of increase (if any) in the index prescribed by the regulations for the purposes of this subsection over the period of 12 months ending on the 31 December immediately before the relevant 1 July.

          (9G)  For the purposes of subsection (9F), the regulations may specify the manner of calculating the further increase mentioned in that subsection by reference to the movement of the index that is prescribed for the purposes of that subsection.

16  Subsection 13(1) (definition of relevant amount )

Omit “18(2),”, substitute “paragraph 18(4)(a), subsection”.

17  Paragraph 16(4)(a)

Repeal the paragraph, substitute:

                     (a)  if the employee has paid the cost of the medical treatment—to, or in accordance with the directions of, the employee; or

18  Paragraph 16(4)(c)

Repeal the paragraph, substitute:

                     (c)  in any other case—to the person to whom the cost is payable.

19  Subsection 18(2)

Omit “such amount, not exceeding $3,500, as”, substitute “the amount, not exceeding the amount determined in accordance with subsection (4), that”.

20  At the end of section 18

Add:

             (4)  The maximum amount of compensation under subsection (2) is:

                     (a)  $9,000; or

                     (b)  if the regulations prescribe a higher amount—that amount.

Note:          The amount of $9,000 is indexed under section 13.

21  Subsection 20(1)

Repeal the subsection, substitute:

             (1)  Compensation payable to an employee who is incapacitated for work as a result of an injury is determined in accordance with this section if:

                     (a)  the employee is retired from his or her employment (whether the employee retired voluntarily or was compulsorily retired); and

                     (b)  the employee receives a pension under a superannuation scheme as a result of the employee’s retirement.

22  Subsection 20(3)

Repeal the subsection, substitute:

             (3)  The amount of compensation is the amount worked out using this formula:

where:

amount of compensation means the amount of compensation that would have been payable to the employee for a week if:

                     (a)  section 19, other than subsection 19(6), had applied to the employee; and

                     (b)  in the case of an employee who was not a member of the Defence Force immediately before retirement—the week were a week referred to in subsection 19(3).

             (4)  In using the formula in subsection (3) to calculate an amount of compensation for an employee who retired before the day on which item 22 of Schedule 1 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2006 commenced, use “SC” instead of “5% of the employee’s normal weekly earnings”. For this purpose:

SC means the amount of superannuation contributions that the employee would have been required to pay in that week if he or she were still contributing to the superannuation scheme.

23  Subsection 21(1)

Repeal the subsection, substitute:

             (1)  Compensation payable to an employee who is incapacitated for work as a result of an injury is determined in accordance with this section if:

                     (a)  the employee is retired from his or her employment (whether the employee retired voluntarily or was compulsorily retired); and

                     (b)  the employee receives a lump sum benefit under a superannuation scheme as a result of the employee’s retirement.

24  Subsection 21(3)

Repeal the subsection, substitute:

             (3)  The amount of compensation is the amount worked out using this formula:

where:

amount of compensation means the amount of compensation that would have been payable to the employee for a week if:

                     (a)  section 19, other than subsection 19(6), had applied to the employee; and

                     (b)  in the case of an employee who was not a member of the Defence Force immediately before retirement—the week were a week referred to in subsection 19(3).

weekly interest on the lump sum means the amount worked out by:

                     (a)  multiplying the superannuation amount in relation to the lump sum benefit received by the employee by the rate specified in an instrument made under subsection (5); and

                     (b)  dividing the result of paragraph (a) by 52.

             (4)  In using the formula in subsection (3) to calculate an amount of compensation for an employee who retired before the day on which item 22 of Schedule 1 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2006 commenced, use “SC” instead of “5% of the employee’s normal weekly earnings”. For this purpose:

SC means the amount of superannuation contributions that the employee would have been required to pay in that week if he or she were still contributing to the superannuation scheme.

             (5)  For the purposes of the definition of weekly interest on the lump sum in subsection (3) of this section and subsection 21A(3), the Minister may, by legislative instrument, specify a rate that applies for the period of 12 months commencing on 1 July in any year.

25  Subsection 21A(1)

Repeal the subsection, substitute:

             (1)  Compensation payable to an employee who is incapacitated for work as a result of an injury is determined in accordance with this section if:

                     (a)  the employee is retired from his or her employment (whether the employee retired voluntarily or was compulsorily retired); and

                     (b)  the employee receives:

                              (i)  a pension; and

                             (ii)  a lump sum benefit;

                            under a superannuation scheme as a result of the employee’s retirement.

26  Subsection 21A(3)

Repeal the subsection, substitute:

             (3)  The amount of compensation is the amount worked out using this formula:

where:

amount of compensation means the amount of compensation that would have been payable to the employee for the relevant week if:

                     (a)  section 19, other than subsection 19(6), had applied to the employee; and

                     (b)  in the case of an employee who was not a member of the Defence Force immediately before retirement—the relevant week were a week referred to in subsection 19(3).

superannuation amount in relation to the pension means the superannuation amount in relation to the pension received by the employee in respect of the relevant week.

weekly interest on the lump sum means the amount worked out by:

                     (a)  multiplying the superannuation amount in relation to the lump sum benefit received by the employee by the rate specified in an instrument made under subsection 21(5); and

                     (b)  dividing the result of paragraph (a) by 52.

27  Subsection 21A(4)

Repeal the subsection, substitute:

             (4)  In using the formula in subsection (3) to calculate an amount of compensation for an employee who retired before the day on which item 22 of Schedule 1 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2006 commenced, use “SC” instead of “5% of the employee’s normal weekly earnings”. For this purpose:

SC means the amount of superannuation contributions that the employee would have been required to pay in that week if he or she were still contributing to the superannuation scheme.

28  Subsection 28(4)

Omit “the licensed authority, the licensed corporation”, substitute “the licensee”.

29  Subsections 37(1) and (2)

Repeal the subsections, substitute:

             (1)  A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.

             (2)  If a rehabilitation authority makes a determination under subsection (1), the authority may:

                     (a)  provide a rehabilitation program for the employee itself; or

                     (b)  make arrangements with an approved program provider for that provider to provide a rehabilitation program for the employee.

Note:          A rehabilitation program that is being provided to a person under this section might cease if the person is also provided with rehabilitation under the MRCA (see section 18 of the CTPA).

          (2A)  A determination under subsection (1) is not a legislative instrument.

30  Subsection 48(3)

After “was paid to”, insert “, or for the benefit of,”.

31  Paragraph 50(7)(a)

After “paid to”, insert “, or for the benefit of,”.

32  Subsection 73A(2)

Omit “licensed authority” (wherever occurring), substitute “licensee”.

33  Subsection 73A(2A)

Repeal the subsection.

34  Subsections 73A(6), (7) and (8)

Repeal the subsections, substitute:

             (6)  A licensee and any person acting on its behalf must comply with any guidelines issued and in force under subsection (2).

35  Paragraph 89B(a)

Repeal the paragraph, substitute:

                     (a)  to ensure that, as far as practicable, there is equity of outcomes resulting from administrative practices and procedures used by Comcare and a licensee in the performance of their respective functions;

36  Paragraph 89S(2)(c)

Omit “licensed authority and licensed corporation”, substitute “licensee”.

37  At the end of Division 6 of Part VIII

Add:

108H   Delegation by licensed authority

                   A licensed authority may, by writing signed by its principal officer, delegate to an officer of, or a person employed by:

                     (a)  that authority; or

                     (b)  the Commonwealth; or

                     (c)  any other Commonwealth authority;

all or any of the powers and functions of the licensed authority under this Act.

38  Section 121A

Omit “licensed authority or a licensed corporation”, substitute “licensee”.

39  Section 122

Repeal the section, substitute:

122   Regulations

                   The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.



 

Part 2 Application, saving and transitional provisions

40  Maximum amount of funeral benefit under section 267

Section 267 of the Military Rehabilitation and Compensation Act 2004 , as amended by this Schedule, applies to an amount of compensation in relation to a person who dies on or after the day after this Act receives the Royal Assent.

41  Application of amendment of the definition of disease (section 5B)

(1)       The definition of disease in the Safety, Rehabilitation and Compensation Act 1988 , as amended by this Schedule, applies in relation to:

                     (a)  an ailment suffered by an employee; or

                     (b)  an aggravation of such an ailment;

that the employee suffers on or after the day after this Act receives the Royal Assent.

(2)       For the purposes of subitem (1), an employee suffers an ailment or aggravation on the day determined under subsection 7(4) of the Safety, Rehabilitation and Compensation Act 1988 .

42  Application of amendment of the definition of injury (section 5A)

The definition of injury in the Safety, Rehabilitation and Compensation Act 1988 , as amended by this Schedule, applies in relation to a disease, injury or aggravation that an employee sustains on or after the day after this Act receives the Royal Assent.

43  Application of amendment of definition of suitable employment

The definition of suitable employment in the Safety, Rehabilitation and Compensation Act 1988 , as amended by this Schedule, applies to an amount of compensation worked out in relation to a period of incapacity that begins on or after the day after this Act receives the Royal Assent.

44  Application of amendments relating to when an injury arises out of or in the course of employment (section 6)

Section 6 of the Safety, Rehabilitation and Compensation Act 1988 , as amended by this Schedule, applies in relation to an injury sustained on or after the day after this Act receives the Royal Assent.

45  Maximum amount of funeral benefit under section 18

Section 18 of the Safety, Rehabilitation and Compensation Act 1988 , as amended by this Schedule, applies to an amount of compensation in relation to a person who dies on or after the day after this Act receives the Royal Assent.

46  Application of amendments of sections 20, 21 and 21A

(1)       Subsections 20(1), 21(1) and 21A(1) of the Safety, Rehabilitation and Compensation Act 1988 , as amended by this Schedule, apply in relation to an employee who retires on or after the day after this Act receives the Royal Assent.

(2)       The amendments of sections 20, 21 and 21A of the Safety, Rehabilitation and Compensation Act 1988 by this Schedule that are not covered by subitem (1) apply in relation to any working out of an amount of compensation for a week starting on or after the day on which the amendments of those subsections commence.

47  Transitional provision for specifying a rate under subsection 21(5)

The Minister may specify, in an instrument made under subsection 21(5) of the Safety, Rehabilitation and Compensation Act 1988 , a rate that applies for the period starting on the day after this Act receives the Royal Assent and ending on the next 30 June.

48  Saving provision for regulations in force under section 122

Regulations made under section 122 of the Safety, Rehabilitation and Compensation Act 1988 that were in force immediately before the day after this Act received the Royal Assent continue in force on and after that day as if they had been made under section 122 of that Act as amended by this Schedule.