Amendments to Accident Compensation Act 1985 (Victoria)

6 July 2010

The Accident Compensation Amendment Act 2010 was passed on 11 March 2010, bringing about a number of significant changes to the Accident Compensation Act 1985 (“the Act”), some of which are already in effect, with the balance to commence operation on 1 July 2010.

Importantly, as of 1 July 2010, there will be changes to return-to-work provisions. The central obligation to return workers who have a partial or complete capacity to do so, to suitable or pre-injury work for a period of 52 weeks, will remain. However, in an effort to reduce the focus on “paper compliance”, requirements to develop Rehabilitation and Risk Management Programs and document return-to-work plans will be abolished. Instead, employers will be required to comply with the following obligations, to the extent that it is reasonable to do so:

Plan the return-to-work of a worker;
Consult with the worker, a provider of occupational rehabilitation services and (subject to the worker’s consent) the worker’s medical practitioner regarding the worker’s return to work;
Nominate a return-to-work co-ordinator; and
Make return to work information available.

In parallel to the powers of WorkSafe health and safety inspectors, return-to-work inspectors will now be able to issue Improvement Notices where there is a perceived failure to comply with these obligations. Significant increases to penalties for breach will also be introduced.

Anti-discrimination was also identified as a critical issue for reform. Currently, only dismissal of an employee can amount to discrimination under the Act. From 1 July 2010, the range of discriminatory conduct will be much wider and will include threatening to dismiss the worker, altering or threatening to alter the position of the worker to the worker’s detriment and treating the worker less favourably than another in relation to promotion or re-employment. The conduct will be discriminatory if the dominant reason for the conduct is because the worker has given notice of an injury, has taken steps to pursue a claim for compensation or has complied with a request of WorkSafe regarding an investigation. The new provisions will extend to prospective employers, as well as to current employers and companies will face penalties of up to $140,000 if they are found to have engaged in discriminatory conduct.

The Act has also been amended so as to provide a more extensive definition of “management action”. The significance of this amendment is that certain psychological injuries are not compensable when they arise from the employer’s reasonable “management action”. The definition now incorporates appraisal, counselling, suspension, stand down, training and investigation in addition to the more traditional actions such as demotion and dismissal, so as to reflect contemporary management practices.

There are also a number of amendments regarding the calculation of employer premiums which will take effect on 1 July 2010. For instance, a formal process for the review of premiums will be available for employers and an independent body will be established to conduct regular premium reviews. New premium avoidance measures will also be introduced. For example, it will be an offence, punishable by imprisonment, for an employer to make a false or misleading statement to WorkSafe in relation to the calculation of its premium.

Other key amendments to the Act include:

Increases to maximum no-fault lump sum benefits and weekly compensation payments;
Employees being able to take annual leave or long service leave during a compensation period, without any impact on their entitlement to compensation; and
Employers being able to request written reasons for the acceptance or rejection of claims.

What should you do?

Update your policies and procedures for managing long-term injured workers to take into account the new return-to-work obligations;
Develop return-to-work information (including your obligations, your employees’ obligations and the procedure for resolving return-to-work disputes) and consult with employees as to how this information is to be made available;
Update your anti-discrimination policies and procedures to take into account the amendments and to ensure that these policies and procedures are properly implemented; and
Ensure that the responsible personnel receive adequate training in these areas.

If you require any further information or clarification, or require any assistance regarding any of the above issues or indeed any other Workplace Relations issues, please don’t hesitate to contact any of the following professionals in our Employment Law and Workplace/Industrial Relations Department:

Telephone: (03) 9510 0366

Gary Katz gk@meerkinapel.com.au

Jonathan Nguyen jn@meerkinapel.com.au

Rob Wall rw@meerkinapel.com.au

Steve Wilson sw@meerkinapel.com.au

Caroline Callegari cfc@meerkinapel.com.au

Amy Millar am@meerkinapel.com.au