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Employee Protection (Employee Entitlements Guarantee) Bill 2005

Part 5 Claims

23   Entitlement to make claim

             ( 1 )  An employee is entitled to make a claim under a policy of employee entitlements protection insurance if:

                     (a)  the employer is insolvent; and

                     (b)  an amount covered by the policy has fallen due for payment by the employer; and

                     (c)  the employer has failed to pay the unpaid amount in full within 14 days after receiving a written claim for payment made by or on behalf of the employee.

             ( 2 )  If:

                     (a)  an employer is insolvent; and

                     (b)  written notice of the insolvency is given to an employee by:

                              (i)  the employer; or

                             (ii)  a trustee in bankruptcy, liquidator or other person authorised to administer the employer's affairs; or

                            (iii)  an insurer under a policy of wage protection insurance; and

                     (c)  the notice contains information required under the regulations;

the employee's right (if any) to make a claim under the policy of employee entitlements protection insurance is extinguished if the claim is not brought within 6 months after the date the written notice was given.  

24   Making of claim

             ( 1 )  A claim by an employee under a policy of employee entitlements protection insurance must be made in writing.

             (2)  The claim must set out:

                     (a)  the name and address of the claimant; and

                     (b)  the name of the insolvent employer; and

                     (c)  the dates when the claimant's employment with the insolvent employer started and ended; and

                     (d)  the amount claimed by the claimant under the policy and the basis on which it is claimed.

             (3)  The claimant must at the request of the insurer provide any further information or materials that the insurer may reasonably require to determine the claim.

25   Insurer against whom claim is to be made

                   A claim is to be made against:

                     (a)  the insurer under the employer's policy of employee entitlements protection insurance; or

                     (b)  if the employer is an exempt employer or did not hold a policy of wage protection insurance for the benefit of the employer's workforce—the nominal insurer.

26   Insurer's response to claim

             (4)  An insurer must, as expeditiously as possible but in any case within 1 month after receiving a claim under a policy of employee entitlements protection insurance, respond to the claim by giving written notice to the claimant stating:

                     (a)  whether the insurer rejects or accepts the claim; and

                     (b)  if the insurer accepts the claim in part, stating the amount to which the insurer believes the claimant to be entitled under the policy.

             (5) If, within 14 days after receiving the claim, the insurer reasonably asks the claimant to provide further information or materials to enable the insurer to determine the claim, the insurer is not required to respond to the claim until 14 days after the information or materials are provided.

27   Conciliation of disputes

                   If a claim under a policy of employee entitlements protection insurance is disputed, either the insurer or the claimant may refer the dispute for conciliation in accordance with the relevant conciliation procedures.

28    Proceedings in court

             (1)  If:

                     (a)  an insurer does not respond to a claim as required under this Act; or

                     (b)  a disputed claim is not resolved in conciliation proceedings;

the claimant may bring an action against the insurer to recover the amount of the claim in a court with jurisdiction to determine claims in contract up to the amount of the claim.

             (2)  In an action brought under subsection (1), an employee protected by a policy of employee entitlements protection insurance is to be regarded as having the same rights to claim under the policy as if the employee were a party to the insurance contract.

29   Insurer's rights of subrogation

                   If an insurer makes any payment on a claim under a policy of employee entitlements protection insurance, the insurer is subrogated to the rights of the claimant against the claimant's employer.