New return to work obligations for ACT employers

The Workers Compensation Amendment Act 2016 (ACT) has introduced a requirement for certain employers in the ACT to appoint a return to work (RTW) coordinator, who will have powers and functions defined by the Workers Compensation Act 1951 (ACT). The changes will take effect from 31 May 2016. The amending Act also broadens the powers of workplace inspectors.

Who do the changes apply to?

The requirement to appoint, and maintain a RTW coordinator will apply to all employers who either:

• pay an annual premium of $200,000 or more; or
• are a self-insurer.

Does the RTW coordinator need any specialised training or experience?

The changes also make it mandatory to appoint a RTW coordinator who possesses relevant training or experience, as determined by the ACT Minister for Industrial Relations.

The Territory has subsequently advised that the SafeWork NSW-approved training course, Introduction to return to work coordination, would satisfy the training requirement.

Appropriate experience means that the person

“understands the ACT workers’ compensation scheme and has experience:

• assisting injured workers to remain at work, or return to work as soon as practicable following an injury;
• assisting an employer’s insurer to prepare and implement RTW or personal injury plans;
• identifying suitable duties for injured workers; and
• working with injured workers, medical providers and insurers in relation to returning injured workers to duty.“

These are also the functions of the RTW coordinator, as set out by the amended legislation. The precise way in which the regulator will interpret and apply the term “appropriate experience” remains unclear.

Affected employers or self-insurers will also need to notify the Minister for Industrial Relations about the details of the appointment and comply with any guidelines that the Minister may issue (there are currently none).

How to notify the Minister of an appointment

To notify the Minister who your RTW coordinator will be, the Territory has asked that affected employers email the following details to kerry.vandelaarschot@act.gov.au:

• RTW coordinator’s name;
• position held;
• workplace address;
• workplace contact phone number;
• workplace email address; and
• date of appointment as RTW coordinator.

What happens if an employer fails to comply with the changes?

If an affected employer fails to:

• appoint a RTW coordinator; or
• appoint a suitably trained or experienced RTW coordinator; or
• notify the Minister of the details of the appointed RTW coordinator within 30 days of the appointment,

then the employer is liable to pay a fine of up to $75,000. Employers should also be aware that any of the failures listed above are considered “strict liability” offences. This means that the employer could be found liable to pay a fine even if it (or the responsible employee/s) was unaware of the obligation to appoint a RTW coordinator.

We therefore strongly recommend that affected employers seek to appoint an appropriate RTW coordinator by no later than 31 May 2016 and notify the Minister within 30 days of appointment.

Amendments to inspectors’ powers

The amending Act has also modified, with immediate effect, the provisions in the Workers Compensation Act 1951 (ACT) that relate to workplace inspectors. Under the changes, workplace inspectors can now enter any premises considered a “workplace”. Permission from the occupier of the premises or a search warrant are no longer required, although a search warrant may still allow inspectors to enter non-workplace premises.

Other major changes include:

• Removing the employer’s ability to request the inspector to leave the premises if they do not show their inspector identity card; and
• Allowing inspectors to enter workplace premises without notice. The inspector must, as soon as practicable after entry, notify the occupier and any employers on the premises of the purpose of the entry. However, this is not required in circumstances where the purpose of the entry would be defeated by providing an explanation.

The changes significantly expand the powers of workplace inspectors in the ACT. We recommend that employers contact their solicitor should there be any concern with an inspector gaining entry to their workplace.