The following legislative amendments have recently come into effect.

Division 4A of the Workers’ Compensation and Injury Management Act 1981 provides for a rebuttable presumption that supports claims by firefighters employed by the Department of Fire and Emergency Services who contract one of 12 specified cancers.  These special arrangements came into effect on 13 November 2013.

Part 4 of the Firefighters and Emergency Volunteers Legislation Amendment (Compensation) Act 2016 came into operation on 21 January 2017 and expands the current presumption under Division 4A. The presumption now covers:

  1. Former firefighters employed by Department of Fire and Emergency Services;
  2. Current and former firefighters employed by the State such as Department of Parks and Wildlife and Forest Products Commission firefighters.

A number of amendments have been made to clarify the application of the laws to current and former State employed firefighters.

This fact sheet outlines the presumptive laws.

The Amendment Act can be accessed here. The Explanatory Memorandum for the Amendment Act can be accessed here.

Regulatory amendments have changed the declaration required from workers residing outside of Western Australia and clarified aspects of the declaration process and timeframes.

Key changes include:

  • a revised declaration form that is designed and structured to capture the key information requirements about the worker’s identity and capacity for work;
  • removal of the requirement for the worker and medical practitioner’s signature to be witnessed by a person with authority to administer an oath;
  • worker identity to be verified by the certifying medical practitioner at the time of the assessment through sighting of an official document such as a passport;
  • flexibility for workers to send the declaration at any time within each 3 month period they are residing outside Western Australia;
  • linking the 3 monthly intervals to the date the declaration was sent by the worker rather than its receipt by the employer/ insurer.
  • flexibility for the declaration to be sent electronically, by post or in person.

To access the new declaration form click here.

An Info Sheet provides further information for workers and medical practitioners about the declaration requirements.

The regulations as printed in the Government Gazette can be found here.

A new regulation has been effected which expands the definition of ‘industrial award’ in the Workers’ Compensation and Injury Management Act 1981:

3A.  Instruments under Commonwealth laws prescribed for definition of industrial award in Act

For the purposes of paragraph (d) of the definition of industrial award in section 5(1) of the Act, the following instruments are prescribed —

  1. a fair work instrument as defined in the Fair Work Act 2009 (Commonwealth) section 12;
  2. an award-based transitional instrument as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Commonwealth) Schedule 2 item 2 that continues in existence under Schedule 3 Part 2 of that Act.

The regulation confirms that workers covered by Commonwealth instruments are ‘award’ workers for the purpose of calculating weekly compensation payments. This is consistent with common practice and does not have any material impact on payments made to workers.

The Workers’ Compensation and Injury Management Conciliation Rules 2011 were amended on 1 July 2015. One of the amendments introduced a new rule (Rule 28 A) to allow Conciliation Service dispute related documentation to be lodged via email.

28A. Lodging by email

(1)    The Director —

  1. may approve and publish an email address for the service of documents under this rule; and
  2. may determine and publish requirements as to the permissible format and the maximum size of documents which may be lodged under this rule.

(2)    An email by which documents are lodged under this rule must —

  1. state the sender’s name, postal address and email address; and
  2. state a telephone number through which the sender can be contacted; and
  3. list and describe the documents being lodged by the email.

(3)    Documents lodged under this rule must comply with any published requirements as to form and size.

(4)   A person who lodges a document under this rule must —

  1. create and retain for the duration of the conciliation proceedings a physical copy of the email and the documents lodged; and
  2. produce the items mentioned in paragraph (a) if required by the conciliation officer.

This rule permits documents to be lodged via conciliation.docs@workcover.wa.gov.au. This is the only email address approved for this purpose.

Conditions to meet when lodging documents by email are outlined on the Workers’ Compensation Conciliation Service page. Documents not complying with these conditions will be returned to the sender and considered to have not been lodged.

There has been no change to Rule 7(2) which requires documents submitted in accordance with the Rules to be copied and sent out to other parties to the dispute.

The Workers’ Compensation and Injury Management Amendment Act 2013 implements new presumptive workers’ compensation laws that benefit career firefighters who contract cancer performing firefighting duties.

The legislation is effective 13 November 2013.

If you have any queries regarding the Amendment Act please contact Kevin Gillingham on 9388 5640 or email kevin.gillingham@workcover.wa.gov.au.

The State Parliament has passed legislation to align the rate of weekly compensation paid to licensed jockeys with their pre-injury average weekly earnings on the same basis as other non-award workers under the Workers’ Compensation and Injury Management Act 1981. The legislation also clarifies the scope of the workers’ compensation insurance obligation between Racing and Wagering Western Australia and licensed trainers regarding work done by jockeys for trainers at unlicensed facilities.

The legislation is effective 14 December 2012.

For further information, download the Regulatory Impact Statement (PDF – 250kb) for this legislative proposal.

The Governor in Executive Council proclaimed 1 August 2012 for the commencement of the Workers’ Compensation and Injury Management Amendment Act 2012.

The supporting Workers’ Compensation and Injury Management Amendment Regulations 2012 are also effective from 1 August 2012.

These legislative changes clarify common law insurance requirements under the Workers’ Compensation and Injury Management Act 1981 (the Act) as a result of legal uncertainty over the scope of the insurance obligation introduced on 1 October 2011 by the Workers’ Compensation and Injury Management Amendment Act 2011.

The legislative changes:

  • Clarify the definition of ‘damages’ for insurance purposes.
  • Provide that employers do not require common law insurance under the Act for ‘deemed workers’ – that is, workers of whom the employer would not be the employer but for being deemed an employer under sections 175 or 175AA for compensation purposes.
  • Retrospectively preserve insurance arrangements for employers of deemed workers insured under public liability insurance arrangements by preventing the denial of cover on the basis that the employer was required to be insured under the Act from from 1 October 2011 to 1 August 2012.
  • Limit, modify or exclude any requirement to hold insurance in respect of liabilities in prescribed circumstances or out of prescribed events. These are consistent with current employer indemnity arrangements and include:
    • a $50 million insurance limit on common law liabilities arising out of a single event.
    • an insurance exclusion regarding any liability to pay compensation or damages arising out of events such as war, military or usurped power.
    • an insurance exclusion regarding any liability to pay damages in respect of injuries occurring outside of Australia or in a jurisdiction outside of Australia.
    • an insurance exclusion regarding any liability to pay compensation or damages in respect of specified industrial diseases arising from employment in any mine or mining operation.
  • Preserve terms, conditions and exclusions in employer indemnity policies to the extent these comply with the corrective amendments in the Amendment Act and Regulations.
The Governor in the Executive Council proclaimed 1 October 2011 for the commencement of the first stage of the Workers’ Compensation and Injury Management Amendment Act 2011 (the Act), following its Royal Assent on 31 August 2011. The first stage:

  • removes all aged based limits on workers’ compensation entitlements
  • extends the safety net arrangement for workers awarded common law damages against uninsured employers
  • includes various amendments of an administrative nature.

The changes to the dispute resolution process were proclaimed on 1 December 2011. For information, see the Dispute services section or download the Conciliation and Arbitration Services Information Session Presentation November 2011 (PDF – 890kb).

The calculation of weekly payments of compensation provisions in sections 123(2) to (7) of the Act have not been proclaimed, at this stage. This decision was based upon concerns that the proposed amendments could result in unintended detriment to some workers.

The amendments relating to weekly payments were developed as a means to improve the efficiency of the scheme by avoiding disputes. In consultation on the amendments, WorkCover WA advised stakeholders that there was no intention to materially change compensation entitlements. It is now clear that the potential impact of the amendments is inconsistent with this position. The relevant provisions are under review with the intention of rectifying this matter.

Fact sheets

WorkCover WA has provided the following fact sheets relating to the 2011 Legislative Amendments.

The 2011 amendments were made in response to WorkCover WA’s 2009 review of the Workers’ Compensation and Injury Management Act 1981.

Download a copy of the:

Extensive consultation was undertaken as part of the review process and throughout the drafting of legislative amendments that arose as a result.

A stakeholder reference group provided invaluable advice. This group included employers and unions as well as other key participants in the scheme. It comprised representatives from:

  • Australian Medical Association (WA)
  • Chamber of Commerce and Industry of WA
  • Chamber of Minerals and Energy
  • Department of Commerce
  • Housing Industry Association
  • Insurance Council of Australia
  • National Insurance Brokers Association of WA
  • Self Insurers Association
  • The Law Society of WA
  • Unions WA
  • WorkCover WA

An additional group was convened specifically to consider the dispute resolution arrangements. It included a cross section of stakeholders representing workers’, employers’, and insurers’ interests.

The review recommended a two stage program of reforms to WA’s workers’ compensation.

Stage One includes the amendments passed on 17 August 2011.

Stage Two involves the development of a new workers’ compensation statute based on contemporary language and drafting conventions. Work on stage two is in progress – see the Legislative Review page for more information.