Return to Work Act 1986

Part 12 Transitional matters for Workers Rehabilitation and Compensation Legislation Amendment Act 2012 198 Provision of ABN before commencement .................................... 158 199 Consideration of benefits provided to worker in form other than an amount of money paid or credited to worker........................... 158 200 Continuation of entitlement under section 65 before commencement ........................................................................... 159 Part 13 Transitional matters for Workers Rehabilitation and Compensation 201 Definitions .................................................................................... 160 202 Limitation for post-commencement injury .................................... 160 203 Application of sections 49 and 49A.............................................. 160 203A Extended application of section 50A............................................ 161 204 Application of section 62 .............................................................. 161 205 Contribution under section 121A ................................................. 162

Return to Work Act 1986 ix Part 14 Transitional matters for Return to Work 206 Definitions .................................................................................... 162 207 Application of section 3A ............................................................. 162 208 Limitation for post-commencement injury .................................... 162 209 Offence provisions – before and after commencement ............... 163 Part 15 Transitional matters for Return to Work Legislation Amendment Act 2020 210 Definitions .................................................................................... 164 211 Worker ......................................................................................... 164 212 Out of or in course of employment............................................... 164 213 Labour hire arrangement ............................................................. 165 214 Long-term incapacity ................................................................... 165 215 Dispute relating to costs .............................................................. 165 216 Overpayment of benefits ............................................................. 165 217 Rehabilitation costs ..................................................................... 165 218 Settlement by agreement............................................................. 165

As in force at 25 March 2024

RETURN TO WORK ACT 1986 An Act about workers' rehabilitation and compensation

1 Short title This Act may be cited as the Return to Work Act 1986.

2 Objects of Act The objects of this Act are as follows: (a) to provide for the effective rehabilitation and compensation of injured workers; (b) to provide for the prompt and effective management of workplace injuries in a manner that promotes and assists the return to work of injured workers as soon as practicable; (c) to ensure that the scheme for the rehabilitation and compensation of injured workers in the Territory: (i) is fair, affordable, efficient and effective; and (ii) provides adequate and just compensation to injured (iii) is balanced to ensure that the costs of workers compensation are contained to reasonable levels for employers.

3 Interpretation (1) In this Act: ABN has the same meaning as in the Income Tax Assessment Act 1997 of the Commonwealth. act includes an omission.

Return to Work Act 1986 2 acting in an official capacity, in relation to an inspector, means the inspector is exercising powers or performing functions under, or otherwise related to the administration of, this Act. adequate policy of insurance or indemnity, for Part 7, Division 3, see section 126. appointed member, of the Council, means a member appointed under section 10(1)(b). approved means approved by the Authority or the Minister. approved form means a form approved by the Authority for the purposes of the provision in which the expression occurs. approved insurer means an insurer approved under section 119(2). attendant care services, for Part 5, Division 4, see section 74A. Authority means the Work Health Authority continued under the Work Health Administration Act 2011. average weekly earnings means the Average Weekly Earnings for Full Time Adult Persons, Weekly Ordinary Time Earnings for the Northern Territory last published by the Australian Statistician before 1 January before the date in respect of which they are required under this Act to be assessed. benefit includes an advantage of any kind. burial, see section 7 of the Burial and Cremation Act 2022. catastrophic injury, see section 78A(6). Chair, of the Council, includes the Deputy Chair while acting as the Chair. claimant means a person claiming or being paid compensation. compensation means a benefit, or an amount paid or payable, under this Act as the result of an injury to a worker and, in sections 132 to 137 inclusive and section 167, includes: (a) an amount in settlement of a claim for compensation; and (b) costs payable to a worker by an employer in relation to a claim for compensation. conference, for Part 6A, Division 1, see section 103A.

Return to Work Act 1986 3 Council means the Workers Rehabilitation and Compensation Advisory Council. Court means the Work Health Court continued under the Work Health Administration Act 2011. disease includes a physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development and whether contracted before or after the commencement of Part 5. disposal, see section 7 of the Burial and Cremation Act 2022. dispute, for Part 6A, Division 1, see section 103A. employer means a person by or for whom a worker is engaged or works or, in relation to a member of the Legislative Assembly, a Supreme Court Judge, a Local Court Judge or a member of the Police Force, means the Territory. expert financial advice means expert financial advice as prescribed by regulation. first compensation date, in relation to a worker and a particular injury, means the date on which the worker first became entitled to compensation for that injury. former Fund, for Part 7, see section 117. Fund, see section 117. impairment means a temporary or permanent bodily or mental abnormality or loss caused by an injury. incapacity means an inability or limited ability to undertake paid work because of an injury. incident means an event occurring at, or a situation arising in, a workplace which results in an injury. industrial agreement means an agreement which wholly or partly regulates terms or conditions of employment. industrial award means: (a) an award or determination relating to the terms and conditions of employment of a worker made under an Act; or (b) an award or a certified agreement made under the Workplace Relations Act 1996 of the Commonwealth. injury, see section 3A.

Return to Work Act 1986 4 inspector means an inspector under section 7A. insurer means a body corporate that is authorised under the Insurance Act 1973 (Cth) to carry on insurance business, or that was so authorised at the time a relevant policy of insurance or indemnity was taken out and, in Part 5, Division 5, includes the jurisdiction means a State or a Territory of the Commonwealth and, in a geographical sense, includes the adjacent area of the State or Territory as prescribed by regulation. labour hire arrangement, see section 4A. management action, in relation to a worker, means any action taken by the employer in the management of the worker's employment or behaviour at the workplace, including one or more of the following: (a) appraisal of the worker's performance; (b) counselling of the worker; (c) stand down of the worker, or suspension of the worker's (d) disciplinary action taken in respect of the worker's (e) transfer of the worker's employment; (f) demotion, redeployment or retrenchment of the worker; (g) dismissal of the worker; (h) promotion of the worker; (i) reclassification of the worker's employment position; (j) provision to the worker of a leave of absence; (k) provision to the worker of a benefit connected with the worker's employment; (l) training a worker in respect of the worker's employment; (m) investigation by the worker's employer of any alleged misconduct: (i) of the worker; or

Return to Work Act 1986 5 (ii) of any other person relating to the employer's workforce in which the worker was involved or to which the worker was a witness; (n) communication in connection with an action mentioned in paragraphs (a) to (m). mediator means a mediator appointed under section 103C(1). medical certificate of capacity means a certificate issued by a medical practitioner, or another person of a class prescribed by regulation, that certifies a worker's capacity for work. Nominal Insurer means the Nominal Insurer established by section 150(1). out of or in the course of his or her employment, see section 4. party, for Part 6A, Division 1, see section 103A. PAYG provisions means the provisions of Division 12 of

Schedule 1 to the Taxation Administration Act 1953 of the Commonwealth. plant includes machinery, pressure vessels, equipment, appliances, implements, scaffolding and tools, any component thereof and anything fitted, connected or appurtenant thereto. prohibition notice, see section 7KA(3). registrar means: (a) the registrar of the Court; or (b) a judicial registrar of the Court. rehabilitation, in relation to an injured worker, means a process designed to: (a) ensure the worker's return to work as soon as practicable; or (b) maximise the worker's ability to live independently. relevant permanent impairment, for Part 5, Division 3, means permanent impairment assessed in accordance with section 65(13A). repealed Act means the Acts repealed by section 188, as in force immediately before the commencement of that section.

Return to Work Act 1986 6 Rules means the court rules as defined in section 3 of the Work Health Administration Act 2011. sailor means a person employed or engaged in any capacity on board a ship. self-insurer means: (a) an employer approved under section 120 to self-insure; or (b) except in Part 7, subject to section 118(2) – the Territory. ship means any kind of vessel used in navigation by water, however propelled or moved, and includes: (a) a barge, lighter, or other floating vessel; and (b) an air-cushioned vehicle, or similar craft; used wholly or primarily in navigation by water. substance means a natural or artificial substance, whether in solid, liquid, gas or vapour form. Territory worker means a person whose employment is determined, under section 53AA, to be connected with the Territory. tributer means a person who works a mine under an agreement with the lessee or owner of the mine to pay or receive from the lessee or owner a percentage of the value of the product taken from the mine. weekly payment means a weekly payment of compensation. worker, see section 3B. workplace means a place, whether or not in a building or structure, where workers work. (11) Where in this Act the expression Default maximum penalty appears in or at the foot of a section or subsection, being a section or subsection that provides that a person is guilty of an offence against this Act or a breach of which results in such an offence, a person who has been found guilty of that offence is guilty of a further offence against this Act if the offence continues after he or she has been so found guilty and is punishable, on being found guilty for the further offence, by a penalty not exceeding the amount of the default maximum penalty specified after that expression for each day during which the offence continues.

Return to Work Act 1986 7 (12) This section is not relevant for determining whether a person is or is not a worker or employee under another Act unless the other Act otherwise provides.

3A Injury (1) An injury, in relation to a worker, is a physical or mental injury arising out of or in the course of the worker's employment and includes: (a) a disease; and (b) the aggravation, acceleration, exacerbation, recurrence or deterioration of a pre-existing injury or disease. (2) Despite any other provision of this Act, a mental injury is not considered to be an injury for this Act if it is caused wholly or primarily by one or more of the following: (a) management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker's employer; (b) a decision of the worker's employer, on reasonable grounds, to take, or not to take, any management action; (c) any expectation by the worker that any management action would, or would not, be taken or any decision made to take, or not to take, any management action.

3B Meaning of worker (1) A worker is an individual who: (a) performs work or a service of any kind for another person (the employer) under a contract; and (b) in relation to the contract: (i) is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cth), Schedule 1, Part 2-5 (the PAYG provisions); or (ii) despite that the employer does not treat a person as an employee, the person should be an employee under the PAYG provisions. (2) However, worker does not include an individual: (a) who is employed by the Commonwealth; or

Return to Work Act 1986 8 (b) in relation to the work or service under consideration – who is an employer of another person engaged in the performance of the work or service; or (c) who is employed or engaged other than for the purposes of the employer's trade, business or enterprise and in respect of whom the employer does not make any withholding payments under the PAYG provisions. (3) Subject to subsection (4), a person who is a prescribed member of the immediate family of the employer, and who lives with the employer, is not a worker. Note for subsection (3) A person who is a prescribed member of the immediate family of the employer, who does not live with the employer, is not precluded from being a worker only because the person is a prescribed member of the employer's family. (4) A prescribed member of the immediate family of an employer, who lives with the employer, is a worker if the member's name, nature of employment and estimated wages are disclosed to the employer's insurer: (a) when the employment of that member is commenced or, if the relevant insurance or indemnity is effected after the employment is commenced, at that time; and (b) each subsequent time the policy is renewed. (5) Subject to subsection (6), a person who is a director (however described) of a body corporate is not a worker. (6) A director of a body corporate is a worker if: (a) an amount is withheld, under the PAYG provisions, from any remuneration (however described) paid to the director by the body corporate; and (b) the director's name and estimated remuneration, as well as the nature of the director's employment, are disclosed to the body corporate's insurer when: (i) the director is appointed or, if the relevant insurance or indemnity is effected after the director is appointed, at that time; and (ii) each subsequent time the policy is renewed.

Return to Work Act 1986 9 (7) Subject to subsections (8) and (9), an individual who is engaged in voluntary work and who receives in relation to that work, if anything, nothing more than reasonable travelling, accommodation or other out-of-pocket expenses, is not a worker. (8) An individual who, without remuneration or reward, voluntarily engages in any of the following is taken to be a worker employed by the Territory: (a) assisting in emergency services, training exercises or other activities with the consent of, or under the authority and supervision of, or in cooperation with, any of the following (as defined in section 8 of the Emergency Management Act 2013): (i) the Territory, Regional or Local Controller; (ii) the Territory, Regional or Local Recovery Coordinator; (iii) the Director; (b) fighting a fire, training exercises or other activities with the consent of, or under the authority and supervision of, or in cooperation with, a volunteer bushfire brigade established under the Bushfires Management Act 2016; (c) fighting fires or dealing with other emergencies, or training exercises or other activities, as a volunteer member as defined in the Fire and Emergency Act 1996. (9) Also, an individual who, without remuneration or reward, voluntarily engages in work or training of a kind by reference or in relation to which a person or class of persons is prescribed as mentioned in subsection (17), is taken to be a worker employed under a contract of employment by the person or organisation prescribed. (10) Subject to subsection (11), an individual who is employed or engaged by a householder is not a worker. (11) An individual is a worker of a household if the individual earns more than, or is paid at a rate that would exceed, the prescribed amount. (12) A person performing work under a community court order is taken to be a worker employed by the Territory when the person is performing work under the order. (13) If the person was employed as a worker during normal working hours immediately before the time the person performed work under the order, the person's normal weekly earnings in that employment are taken to be the person's normal weekly earnings when performing work under the order.

Return to Work Act 1986 10 (14) Despite anything in this Act but subject to subsection (15), a person is taken not to be a worker while the person is, under a contract: (a) participating as a contestant in a sporting or athletic activity; or (b) engaged in training or preparation with a view to participating in such an activity; or (c) travelling in connection with: (i) participating in such an activity; or (ii) training or preparing for such participation. (15) Subsection (14) does not apply if, under the contract, the person is entitled to remuneration of not less than the prescribed amount per year or at a rate that, if the contract continued for a year, would result in the person receiving remuneration of not less than that amount. (16) An individual who, under a labour hire arrangement, is engaged by a provider of labour hire services to perform work or services for someone other than the provider and, in relation to whom, under the PAYG provisions, withholding payments are required to be made, is a worker of the provider. Note for subsection (16) For the meanings of labour hire arrangement and provider of labour hire services, see sections 4A and 4B respectively. (17) Despite anything in this section, a person, or a member of a class of persons, prescribed by regulation: (a) as a worker is a worker for this Act; and (b) as not being a worker is not a worker for this Act. (18) To avoid doubt, the fact that an individual has an ABN is not determinative of whether or not the individual is a worker for this Act. (19) In this section: community court order means any of the following: (a) a community work order made under the Fines and Penalties (Recovery) Act 2001 or the Youth Justice Act 2005; (b) a community correction order or intensive community correction order made under the Sentencing Act 1995;

Return to Work Act 1986 11 (c) a community work order, community based order or community custody order made under the Sentencing Act 1995 as in force before the commencement of Part 2 of the Sentencing and Other Legislation Amendment Act 2022.

4 Out of or in course of employment (1) Without limiting the generality of the meaning of the expression, an injury to a worker shall be taken to arise out of or in the course of his or her employment if the injury occurs while the worker: (a) on a working day on which the worker attends at the worker's workplace: (i) is present at the workplace; or (ii) having been present at the workplace, is temporarily absent on that day in the course of employment or during an ordinary recess and does not during that absence voluntarily subject himself or herself to an abnormal risk of injury; or (d) is in attendance at a trade, technical or other training school that the worker is required to attend by the terms of employment or as an apprentice, or that the worker is otherwise expected to attend by the employer; or (f) is in attendance at a place for any of the following purposes, in connection with an injury for which the worker is entitled to receive compensation: (i) obtaining a medical certificate of capacity; (ii) receiving medical, surgical or hospital advice, attention or treatment; (iii) submitting to a medical examination required under this Act; (iv) receiving a payment of compensation. (1A) In addition, an injury to a worker is taken to arise out of or in the course of his or her employment if the injury occurs while the

Return to Work Act 1986 12 (a) is travelling by the shortest convenient route between the worker's place of residence and a workplace; or (b) is travelling by the shortest convenient route between the worker's place of residence or a workplace and a place mentioned in subsection (1)(d) or (f); or (c) being a worker who is employed by more than one employer and has attended on a working day at a workplace for one employer, is travelling by the shortest convenient route between that place and the worker's place of employment for another employer. (1B) If subsection (1A)(c) is applicable, the injury is taken to have occurred while the worker was employed by the employer to whose workplace the worker was travelling. (2) Subsection (1A) does not apply if an injury sustained while travelling is sustained during or after a substantial interruption of or substantial deviation from the worker's journey made for a reason unconnected with the worker's employment or attendance at a place mentioned in subsection (1)(d) or (f), which, having regard to all the circumstances, would ordinarily have materially added to the risk of injury. (2A) Despite subsection (1A), an injury to a worker is taken not to arise out of or in the course of his or her employment if the injury is sustained in a motor accident, as defined in the Motor Accidents (Compensation) Act 1979, while the worker: (a) having been at the worker's workplace, is temporarily absent during an ordinary recess; or (b) is travelling between the worker's place of residence and a workplace, unless: (i) the workplace is not the worker's normal or usual workplace and the travel is at the request of the worker's employer; or (ii) the worker's employer has required the worker to work outside the worker's normal hours of work; or (c) is travelling between the worker's place of residence or a workplace and a place mentioned in subsection (1)(d) or (f); or

Return to Work Act 1986 13 (d) having attended on a working day at a workplace for one employer, is travelling between that place and the worker's place of employment for another employer, unless: (i) the workplace to which the worker is travelling is not the worker's normal or usual workplace and the travel is at the request of the worker's employer; or (ii) the employer to whose workplace the worker is travelling has required the worker to work outside the worker's normal hours of work. (3) Despite any other provision of this Act, an injury to a worker is taken to arise out of or in the course of his or her employment if the injury is to a worker in a class of worker prescribed by regulation, subject to any limitation prescribed by regulation. (4) An injury shall be deemed to arise out of or in the course of employment even though at the time that the injury occurred the worker was acting: (a) in contravention of a regulation (whether by or under an Act or otherwise) applicable to the work in which he or she is employed; or (b) without instructions from his or her employer, if the act was done by the worker for the purposes of and in connection with his or her employer's trade or business. (5) An injury shall be deemed to arise out of or in the course of a worker's employment where it occurred by way of a gradual process over a period of time and the employment in which he or she was employed at any time during that period materially contributed to the injury. (6) Unless the contrary is established, a disease shall be taken to have been contracted by a worker in the course of his or her employment if: (a) it is prescribed by the Regulations to be a particular disease, or a disease of a particular kind, specified by the Regulations as being related to employment of a particular kind; and (b) the worker: (i) was, at any time before he or she became aware of his or her contraction of that disease, engaged as a worker in employment of that kind; or

Return to Work Act 1986 14 (ii) died without having become so aware but was, at any time before he or she died, engaged as a worker in employment of that kind. (6A) Subject to this section, a disease shall be taken not to have been contracted by a worker or to have not been aggravated, accelerated or exacerbated in the course of the worker's employment unless the employment in which the worker is or was employed materially contributed to the worker's contraction of the disease or to its aggravation, acceleration or exacerbation. (7) In this section: working day, in relation to a worker, means any day on which he or she attends at his or her workplace for the purpose of working. workplace, where there is no fixed workplace, includes the whole area, scope or ambit of the worker's employment. (8) For the purposes of this section, the employment of a worker is not to be taken to have materially contributed to: (a) an injury or disease; or (b) an aggravation, acceleration or exacerbation of a disease, unless the employment was the real, proximate or effective cause of the injury, disease, aggravation, acceleration or exacerbation.

4A Labour hire arrangement A labour hire arrangement is a contract or an arrangement under which an individual is engaged by a provider of labour hire services (the provider) to provide work or service for someone other than the provider (a client), if: (a) there is no contract to perform the work or service between the individual and the client; and (b) the individual personally performs part or all of the work; and (c) for a provider that is a corporation – the individual is not a director of the corporation.

4B Provider of labour hire services (1) A person is a provider of labour hire services (the provider) if, in the course of conducting a business, the person supplies to another person (the client) an individual to perform work or services in and as part of a business or commercial undertaking of the client.

Return to Work Act 1986 15 (2) Without limiting subsection (1), a person is a provider of labour hire services: (a) if a contract is entered into between the individual (the worker) and the provider, or between the provider and the client; and (b) whether the worker is supplied by the provider to a client directly or indirectly through one or more agents or intermediaries; and (c) whether the work or services performed by the worker is under the control of the provider, the client or another person.

5 Act to bind Crown This Act binds the Crown not only in right of the Territory but also, so far as the legislative power of the Legislative Assembly permits, in all its other capacities.

5A Application of Criminal Code Part IIAA of the Criminal Code applies to an offence against the following provisions of this Act: (a) section 7KD; (b) section 65C; (c) section 75A; (d) section 92; (e) section 103H; (f) section 126AA; (g) section 126AB. Note for section 5A Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences.

Return to Work Act 1986 16

6 Authority's functions and powers under this Act (1) The Authority has the following functions: (aa) to administer this Act; (ab) to monitor compliance with, and enforce, this Act; (ac) to further the objects of this Act; (a) to encourage the provision of appropriate and early rehabilitation treatment of workers incapacitated or impaired in compensable incidents; (b) to identify the rehabilitation services needed in the Territory for workers injured in compensable incidents; (c) to provide financial and other assistance to bodies established by this Act; (d) to monitor, collect and analyse data on compensable incidents in the Territory; (e) to provide information, advice and education to employer and worker groups and other interested persons; (f) to approve insurers for providing workers' compensation insurance; (g) to ensure, as far as practicable, compliance with the requirements of this Act; (h) to prosecute offences against this Act; (i) to perform any other function conferred under this Act. (4) The Authority may delegate any of its functions and powers under this Act.

7 Powers of Authority to obtain information (1) For performing its functions under this Act, the Authority may do one or more of the following: (a) obtain relevant information from any persons as the Authority considers appropriate;

Return to Work Act 1986 17 (b) consult with any persons as the Authority considers appropriate; (c) make any inquiries as the Authority considers appropriate. (2) The Authority may perform its functions under subsection (1) in any way it considers appropriate. (3) Without limiting subsection (1)(a), the Authority may require a person to do one or more of the following: (a) appear before the Authority at a specified time and place; (b) answer questions asked by the Authority; (c) produce documents to the Authority. (4) The Authority may require the person to give the answers on oath or verify the document by statutory declaration. (5) A requirement under subsection (3) or (4) must: (a) be made in writing; and (b) be accompanied by a statement informing the person that it is an offence not to comply with the requirement unless the person has a reasonable excuse. (6) A person must not, without reasonable excuse, fail to comply with a requirement under subsection (3) or (4). (7) Without limiting subsection (6), it is a reasonable excuse for an individual to fail to comply with a requirement if doing so might tend to incriminate the individual.

7A Appointment of inspectors (1) An inspector under the Work Health and Safety (National Uniform Legislation) Act 2011 is an inspector for this Act. (2) The Authority may, in writing, appoint any of the following as an inspector: (a) a public sector employee;

Return to Work Act 1986 18 (b) an employee of a local government council; (c) the holder of a statutory office; (d) a person in a class of persons prescribed by regulation.

7B Identity cards (1) The Authority must give each inspector an identity card that states the person's name and appointment as an inspector and includes any other matter prescribed by regulation. (2) For a person who is an inspector under section 7A(1), a single card may be given to the person for the purposes of both subsection (1) and section 157 of the Work Health and Safety (National Uniform Legislation) Act 2011. (3) An inspector must produce his or her identity card for inspection on request when exercising a power under this Act. (4) If a person to whom an identity card has been issued ceases to be an inspector, the person must return the card to the Authority as soon as practicable.

7C Suspension and ending of appointment of inspector (1) The Authority may suspend or end the appointment of an inspector appointed under section 7A(2). (2) A person's appointment as an inspector under section 7A(2) ends if the person ceases to be eligible for appointment under that subsection. Note for section 7C A person who is an inspector under section 7A(1) may have his or her appointment under the Work Health and Safety (National Uniform Legislation) Act 2011 suspended or ended under section 159 of that Act.

7D Functions of inspector An inspector has the following functions: (a) to give information and advice about compliance with this Act; (b) to assess whether or not the provisions of this Act are being complied with; (c) to gather evidence of a suspected offence under this Act;

Return to Work Act 1986 19 (d) to assist the Authority in performing its functions; (e) to perform any other functions conferred under this Act.

7E Inspector subject to Authority's directions (1) An inspector is subject to the Authority's directions in the performance of the inspector's functions. (2) A direction under subsection (1) may be of a general nature or may relate to a specified matter or specified class of matter.

7F Exercise of powers (1) An inspector may only exercise a power under this Subdivision: (a) for the purpose of performing the inspector's functions under section 7D(b) to (e); and (b) if the inspector reasonably believes it is necessary to do so. (2) In exercising a power under this Subdivision, an inspector may: (a) use any reasonable force; and (b) be accompanied and assisted by other persons as the inspector reasonably considers necessary.

7G Power to require information (1) An inspector may, by written notice, require a person to do either or both of the following within the period specified in the notice: (a) give to the inspector written answers to questions set out in the notice; (b) produce to the inspector documents identified in the notice. (2) The inspector may, in the notice, require the person to verify the answers or document by statutory declaration. (3) A notice under subsection (1) must include a statement informing the person that it is an offence not to comply with the notice unless the person has a reasonable excuse. (4) A person must not, without reasonable excuse, fail to comply with a notice under subsection (1).

Return to Work Act 1986 20 (5) Without limiting subsection (4), it is a reasonable excuse for an individual to fail to comply with a notice under subsection (1) if doing so might tend to incriminate the individual.

7H Power of entry (1) An inspector may enter a place: (a) with the consent of the occupier of the place; or (b) in accordance with a warrant issued under section 7K; or (c) if the place is a workplace and is not a place of residence: (i) during normal working hours for that workplace; and (ii) after having given the employer reasonable notice of the inspector's intention to enter the workplace and reasons for doing so. (2) An inspector seeking the consent of a person to enter a place must: (a) give the person the reasons why entry is sought; and (b) inform the person that the person may refuse to give consent; and (c) show the inspector's identity card to the person. (3) Having entered a place under subsection (1), an inspector may remain at the place for as long as is reasonably necessary to enable the inspector to perform the inspector's functions.

7J General powers of inspector (1) An inspector who enters a place under section 7H may do one or more of the following: (a) inspect or examine the place or anything at the place; (b) photograph, film or otherwise record the place or anything at the place; (c) make copies of documents that are at the place or are produced to the inspector; (d) take reasonable steps to secure or protect a document against damage or unauthorised removal or interference;

Return to Work Act 1986 21 (e) take into the place and use any equipment or other things that are reasonably necessary to enable the inspector to exercise the inspector's powers under this Subdivision; (f) make reasonable use of equipment, things or services at the place as reasonably necessary to enable the inspector to: (i) retrieve or record a document; or (ii) exercise any of the inspector's other powers under this Subdivision; (g) require a person at the place to do one or more of the (i) answer questions asked by the inspector; (ii) produce documents to the inspector; (iii) give the inspector reasonable help to exercise the inspector's powers under this Subdivision; (h) if the entry to the place was effected in accordance with a warrant – anything authorised to be done by the warrant. (2) A requirement under subsection (1)(g) must be accompanied by a statement informing the person that it is an offence not to comply with the requirement unless the person has a reasonable excuse. (3) A person must not, without reasonable excuse, fail to comply with a requirement under subsection (1)(g). Maximum penalty: 20 penalty units

7K Entry of place – search warrant (1) An inspector may apply to a Local Court Judge, by information on oath, for a search warrant to enter a place for the purpose of exercising the inspector's powers under this Subdivision at the place. (2) The Local Court Judge may issue a search warrant only if satisfied there are reasonable grounds for the inspector to exercise the inspector's powers at the place and the warrant is reasonably necessary. (3) The warrant authorises the inspector named in the warrant, and any other person assisting the inspector, to enter the place and to exercise the inspector's powers under this Subdivision.

Return to Work Act 1986 22 (4) The warrant must state: (a) the place for which it is issued; and (b) the grounds (in general terms) on which it is granted; and (c) the hours during which entry to the place is authorised or that the entry is authorised at any time of the day or night; and (d) the date, within 14 days after the warrant's issue, on which the warrant ceases to have effect. (5) The inspector executing the warrant must produce the warrant for inspection if asked to do so by: (a) the occupier of the place; or (b) if the place is a workplace – the employer; or (c) any person at the place. 7KA Power to issue prohibition notice (1) This section applies if an inspector reasonably believes that a policy of insurance or indemnity required by section 126AA(1) is not in force for an employer who is not a self-insurer. (2) The inspector may give the employer a direction prohibiting the carrying on of the employer's business until an inspector is satisfied that the employer holds the required policy. (3) The direction may be given orally, but must be confirmed by written notice (a prohibition notice) issued to the employer as soon as practicable after the oral direction. 7KB Contents of prohibition notice A prohibition notice must: (a) state that the inspector believes that the employer does not hold the required policy of insurance or indemnity and the reasons for that belief; and (b) include a statement of the effect of section 7KC.

Return to Work Act 1986 23 7KC When employer obtains policy (1) An employer to whom a direction is given under section 7KA(2) or a prohibition notice is issued may, at any time, give evidence to an inspector that the employer is the holder of the required policy of insurance or indemnity. (2) As soon as practicable after the inspector receives the evidence, the inspector must review the evidence and do one of the following: (a) if satisfied that the employer holds the required policy – give the employer written notice that the prohibition notice is no longer in force; (b) otherwise – give the employer written notice as to the deficiencies in the evidence or the policy. (3) A notice under subsection (2)(b) is considered to be a prohibition notice. 7KD Compliance with prohibition notice (1) An employer commits an offence if the employer contravenes a direction given to the employer under section 7KA(2). (2) An offence against subsection (1) is an offence of strict liability. 7KE Continuing offence (1) This section applies if a court has found a person guilty of an offence against section 7KD. (2) The court may, in addition to any penalty imposed for the offence, impose a penalty not exceeding 10 penalty units for each day during which the offence continues after the day the offence is committed.

7L Obstruction of inspector (1) A person must not obstruct another person whom the person knows to be: (a) an inspector acting in an official capacity; or

Return to Work Act 1986 24 (b) a person assisting an inspector acting in an official capacity. Maximum penalty: 100 penalty units or imprisonment for 6 months. (2) In this section: obstruct includes hinder or resist.

7M Misleading information (1) A person must not knowingly give to an inspector acting in an official capacity: (a) misleading information; or (b) a document containing misleading information. Maximum penalty: 200 penalty units or imprisonment for 12 months. (2) Subsection (1)(b) does not apply if the person, when giving the document: (a) draws the misleading aspect of the document to the inspector's attention; and (b) to the extent to which the person can reasonably do so – gives the inspector the information necessary to remedy the misleading aspect of the document. misleading information means information that is misleading in a material particular or because of the omission of a material particular.

Part 3 Workers Rehabilitation and Compensation Advisory Council

8 Workers Rehabilitation and Compensation Advisory Council The Workers Rehabilitation and Compensation Advisory Council is established.

9 Functions of the Council The Council has the following functions: (a) to keep the operation of this Act under review;

Return to Work Act 1986 25 (b) to make recommendations to the Minister on possible improvements to the administration of this Act, or the statutory scheme for the rehabilitation and compensation of injured workers in the Territory; (c) to carry out investigations, at the request of the Minister, into questions about the rehabilitation and compensation of injured workers and to report to the Minister on the results of the investigations; (d) to perform any other advisory functions relating to workers rehabilitation and compensation as the Minister directs.

10 Membership of Council (1) The Council consists of: (a) the person constituting the Authority under section 4(3) of the Work Health Administration Act 2011; and (b) not more than 10 other members appointed by the Minister. (2) The membership of the Council must: (a) include members with a wide range of experience extending as far as possible across all major industry sectors in the Territory; and (b) include representatives of organisations representing employers, and representatives of organisations representing employees, in equal or approximately equal numbers; and (c) include persons with expertise in the rehabilitation of injured (d) include persons with expertise in the insurance industry. (3) Before making an appointment to the Council, the Minister must: (a) invite recommendations for appointment to the Council from interested organisations and persons; and (b) consider all recommendations made in response to the notice. (4) The invitation must be published in the Gazette and in any other way the Minister considers appropriate.

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11 Terms and conditions of appointment (1) The term of appointment for an appointed member of the Council is to be a term, not exceeding 2 years, specified in the instrument of appointment. (2) An appointed member is, at the end of a term of appointment, eligible for re-appointment. (3) A person ceases to be an appointed member of the Council if the person: (a) resigns by notice of resignation given to the Minister; or (b) comes to the end of a term of appointment and is not re-appointed; or (c) is removed from office by the Minister under subsection (4). (4) The Minister may remove an appointed member of the Council from office if the member: (a) is absent, without the Minister's permission, from 3 consecutive meetings of the Council; or (b) becomes bankrupt or applies to take the benefit of a law for the relief of bankrupt or insolvent debtors; or (c) becomes physically or mentally incapable of satisfactorily carrying out the duties of a member of the Council; or (d) is guilty of misbehaviour.

12 Chair and Deputy Chair (1) The Chair of the Council is to be an appointed member of the Council appointed by the Minister to be the Chair. (2) The Minister may appoint another appointed member of the Council to be the Deputy Chair. (3) If the Chair is absent or unavailable to carry out official functions, the Deputy Chair is to act as the Chair. (4) A reference to the Chair extends, while the Deputy Chair is acting as the Chair, to the Deputy Chair.

13 Meetings of Council (1) Meetings of the Council are convened by the Chair.

Return to Work Act 1986 27 (2) A meeting of the Council must be convened: (a) whenever the Chair considers a meeting necessary to deal with the Council's business (but at least once in each quarter); and (b) whenever the Minister directs the Chair to convene a meeting. (3) The Chair must preside at all meetings of the Council. (4) At a meeting of the Council: (a) the Chair and not less than half of the number of other members constitute a quorum; and (b) questions arising for decision are determined by majority vote and, if the votes are equal, the Chair has a casting vote as well as a deliberative vote; and (c) the Council determines, subject to this Act, its own procedures. (5) The Council must keep records of its proceedings.

14 Council subcommittees (1) The Council may establish subcommittees to assist or advise the Council in carrying out any aspect of the Council's functions. (2) A subcommittee may consist entirely of Council members, partly of Council members and partly of members drawn from outside the Council, or entirely of members drawn from outside the Council. (3) The terms and conditions of appointment of a member of a subcommittee are to be determined by the Minister. (4) The procedures of a subcommittee are, subject to any direction by the Council or the Minister, to be as determined by the subcommittee.

15 Annual report of Council (1) The Council must submit a report to the Minister for each financial year. (2) The report must cover: (a) the work of the Council and its subcommittees for the relevant financial year; and (b) the operation of this Act during the relevant financial year.

Return to Work Act 1986 28 (3) The report must be submitted on or before 30 September of the calendar year in which the financial year ends. (4) The Minister must table the report in the Legislative Assembly within 6 sitting days after receiving the report.

49 Interpretation for Part 5 (1) In this Part: accredited vocational rehabilitation provider means a person, Agency or body approved under section 50(1). dependant, in relation to a worker, means: (a) a spouse or other member of the worker's family; (b) a person to whom the worker stood in loco parentis or who stood in loco parentis to the worker; (c) a grandchild of the worker, who was wholly or in part dependent on his or her earnings at the date of his or her death or who would but for the worker's incapacity due to the injury resulting in his or her death, have been so dependent. enrolled nurse means a person registered under the Health Practitioner Regulation National Law: (a) to practise in the nursing profession (other than as a student); and (b) in the enrolled nurses division of that profession. family, in relation to an Aboriginal or Torres Strait Islander, includes all persons who are members of the person's family according to the customs and traditions of the particular community of Aboriginals or Torres Strait Islanders with which the person identifies. hospital treatment, in relation to a worker, means treatment at a hospital within or outside the Territory, and includes his or her maintenance as a patient at the hospital, the provision or supply by the hospital of nursing attendants, medicine, medical or surgical

Return to Work Act 1986 29 supplies or other curative apparatus and all other ancillary services. medical, surgical and rehabilitation treatment, in relation to a worker, includes: (a) an attendance, examination or treatment on or of the worker by: (i) a medical practitioner; or (ii) a person registered under the Health Practitioner Regulation National Law (other than as a student) to practise in the Aboriginal and Torres Strait Islander health practice, chiropractic, dental, occupational therapy, osteopathy, physiotherapy or psychology profession; or (iv) another person that, if provided or carried out at the place where the person normally provides services, would be recognised for compensation purposes under a law providing for compensation to injured workers in that place; and (b) the provision of a medical certificate of capacity by a person referred to in paragraph (a) required by the worker, a dependant of the worker or the worker's legal personal representative for a purpose relating to the operation of this Part; and (c) the provision for the worker of: (i) prostheses; (ii) crutches and other walking aids; or (iii) spectacles, including the necessary repair, adjustment or replacement of those items; and (d) in relation to a claim under this Part, the repair or replacement of items of the kind referred to in paragraph (c) which were damaged or destroyed at the time of the injury giving rise to the claim; and (e) the provision of medical or surgical aids to rehabilitation or of curative appliances, apparatus or materials for the worker, otherwise than when a patient is in a hospital; and

Return to Work Act 1986 30 (f) the provision of medicines or curative apparatus, appliances or materials for workers by a person registered under the Health Practitioner Regulation National Law to practise in the pharmacy profession (other than as a student). mental stress means anxiety, depression or other mental condition that affects a person's psychological, emotional or physical well- being. proceeding means a claim before the Court for compensation or a matter or question incidental to such a claim. registered nurse means a person registered under the Health Practitioner Regulation National Law: (a) to practise in the nursing profession (other than as a student); and (b) in the registered nurses division of that profession. spouse, in relation to a person, includes a de facto partner of the person. worker, in relation to an employer, includes a person formerly employed as a worker by the employer where the worker became eligible for compensation in respect of an injury arising out of or in the course of employment with that employer. (2) A reference in this Part to a fly-in fly-out worker or a drive-in drive-out worker is to be construed as it is for the purposes of the Fringe Benefits Tax Assessment Act 1986 (Cth).

49A Calculation of worker's normal weekly earnings (1) This section applies when normal weekly earnings are to be calculated for a worker who is entitled to compensation under this Act. (2) Subject to this section, the worker's normal weekly earnings immediately before the first compensation date are the gross remuneration paid to the worker by: (a) the employer liable to compensate the worker; and (b) any other employer for whom the worker ordinarily works.

Return to Work Act 1986 31 (3) The following are included in the calculation of the worker's normal weekly earnings: (a) if the worker works overtime in accordance with a regular and established pattern – the amount of the wages attributable to that overtime; (b) any over-award payment received by the worker; (c) any climate allowance, district allowance, leading hand allowance, qualification allowance, shift allowance (if the worker works shiftwork in accordance with a regular and established pattern) or service grant received by the worker; (d) unless the worker is a fly-in fly-out worker or drive-in drive-out worker – the value (not exceeding, in the aggregate, 35% of average weekly earnings) of any electricity, meals or accommodation provided to the worker by an employer in a form other than an amount of money paid or credited to the (4) The following are not included in the calculation of the worker's normal weekly earnings: (a) a superannuation contribution made by the worker's employer; (b) the amount of wages attributable to overtime other than as mentioned in subsection (3)(a); (c) an allowance or grant not mentioned in subsection (3)(c); (d) an amount for electricity, meals or accommodation other than as mentioned in subsection (3)(d); (e) any other remuneration paid by an employer to the worker in a form other than an amount of money paid or credited to the (5) The following applies for the calculation of the worker's normal weekly earnings: (a) if, immediately before the first compensation date, the remuneration paid to a worker by a particular employer did not vary from week to week – the portion of the normal weekly earnings provided by that employer must be calculated as being equal to the amount of the weekly remuneration; (b) if, immediately before the first compensation date, the remuneration paid to the worker by a particular employer varied from week to week – the portion of the normal weekly

Return to Work Act 1986 32 earnings provided by that employer must be calculated as equal to the relevant average remuneration from that employer; (c) the normal weekly earnings in respect of the worker's employment with the employer liable to compensate the worker must be calculated under this paragraph instead of under paragraph (a) or (b) and are equal to the all-employer average remuneration if: (i) the worker had been in employment with that employer for less than 4 weeks immediately before the first compensation date; and (ii) it is impracticable to calculate the normal weekly earnings of the worker, having regard both to the worker's period of employment with the employer and the period during which the worker likely would have continued to work for the employer had the injury not occurred; (d) if it is relevant whether a regular and established pattern of overtime or shiftwork was worked for a particular employer immediately before the first compensation date: (i) if the worker was in employment with the employer for at least 6 months before the first compensation date – regard must be had to the overtime or shiftwork that the worker worked for that employer during the 6 months immediately before the first compensation date; or (ii) otherwise – regard must be had to the following: (A) the overtime or shiftwork that the worker worked for that employer; and (B) whether, in the normal course of that employment, the worker would likely have worked overtime or shiftwork had the injury not occurred; (e) if there is doubt about the method to be used for the calculation of the worker's normal weekly earnings – the method of calculation that results in the greatest amount being calculated as the worker's normal weekly earnings must be used.

Return to Work Act 1986 33 (6) For subsection (2)(b), a worker ordinarily works for an employer immediately before the first compensation date if: (a) the worker was in employment with the employer on the first compensation date; and (b) the worker had been in employment with the employer for at least 6 weeks immediately before the first compensation date. (7) In this section: all-employer average remuneration, in relation to remuneration paid to a worker immediately before the first compensation date, means the average of the worker's total remuneration from all employers for all weeks of paid employment during the period of 12 months that ends immediately before the first compensation date. relevant average remuneration, in relation to remuneration paid to a worker by an employer immediately before the first compensation date, means the average of the worker's total remuneration from the employer for all weeks of paid employment during the period of 12 months that ends immediately before the first compensation date.

50 Accredited vocational rehabilitation providers (1) The Authority may, in writing, approve a person, Agency or body as an accredited vocational rehabilitation provider. (2) Approval under subsection (1) is not to be given unless the Authority considers that the person, Agency or body is capable of providing vocational rehabilitation under this Act and the person, Agency or body meets standards approved by the Authority. (3) An approval under subsection (1) is subject to the conditions, if any, determined by the Authority. (4) An injured worker who participates in a rehabilitation program or workplace based return to work program under this Act is not liable for any fees or other cost in relation to the program if it is provided by a person who, or an Agency or body that, is not an accredited vocational rehabilitation provider. (5) An accredited vocational rehabilitation provider must not contravene or fail to comply with a condition to which the approval under subsection (1) is subject.

Return to Work Act 1986 34 (6) A person, Agency or body must not hold out that the person, Agency or body is an accredited vocational rehabilitation provider unless the person, Agency or body is approved under (7) A person, Agency or body must not provide vocational rehabilitation services to an injured worker under this Act unless the services are provided by an accredited vocational rehabilitation provider. Maximum default penalty: 8 penalty units. 50AA Accredited vocational rehabilitation providers in other jurisdictions Despite section 50, a person or body is considered to be an accredited vocational rehabilitation provider for this Act to the extent that they provide vocational rehabilitation services to an injured (a) if the person or body is an accredited vocational rehabilitation provider (by whatever name called) under the law of another jurisdiction; and (b) if the services are provided to the injured worker in that jurisdiction.

50A Eligibility of firefighter for compensation for prescribed disease (1) Despite any other provision of this Act, but subject to section 203A, unless a contrary intention is established, a disease is taken to have been contracted by a worker in the course of a period of employment, and the employment is taken to have materially contributed to the worker's contraction of the disease, if the following conditions are met: (a) the worker is or was a firefighter; (b) the disease is a prescribed disease; (c) the worker: (i) is, on the onset day for the prescribed disease, working as an active firefighter and had been so working for a period at least as long as the prescribed qualifying period for the prescribed disease; or

Return to Work Act 1986 35 (ii) had been, within the 10 years immediately preceding that onset day, working as an active firefighter and had been so working for a period at least as long as the prescribed qualifying period for the prescribed disease; (d) that onset day is on or after 4 July 2011. (2) All periods during which a worker is working, or worked, as an active firefighter are to be added together for the calculation of the relevant prescribed qualifying period. (3) For this section: firefighter includes a person who is one of the following: (a) a volunteer firefighter; (b) a fire control officer (including a senior fire control officer or the chief fire control officer) appointed under the Bushfires Management Act 2016; (c) a worker employed by the Territory for the prevention or control of bushfires who is also a fire warden appointed under section 43 of the Bushfires Management Act 2016. onset day, in relation to a worker and a prescribed disease, means the earliest of the following: (a) the day on which the worker is first diagnosed by a medical practitioner as having contracted the prescribed disease; (b) the day on which the worker becomes incapacitated for work, if the prescribed disease resulted in, or materially contributed to, the incapacity; (c) the day on which the worker dies, if the prescribed disease resulted in, or materially contributed to, the death. prescribed disease means a disease prescribed by regulation. volunteer firefighter means a natural person to whom section 3(8) or (8A) applies.

Return to Work Act 1986 36 working as an active firefighter, in relation to a worker at a particular time or during a particular period, means: (a) if the worker is a volunteer firefighter at the particular time or during the particular period: (i) the worker is working as a volunteer firefighter at the time or during the period and, while so working, is actively involved in fighting fires; and (ii) the worker is exposed to the hazards of not fewer than the prescribed number of fires within any period: (A) during which the worker is so working as a volunteer firefighter; and (B) that is at least as long as the relevant prescribed firefighting period; or (b) if the worker is a firefighter (including a person appointed to be an auxiliary member under the Fire and Emergency Act 1996) other than a volunteer firefighter – the worker was required under his or her contract of employment to be exposed to the hazards of fighting fires.

51 Application to sailors (2) This Act applies with the following modifications in respect of a disability occurring to a Territory worker employed on a ship: (a) except where the sailor is the master, the notice of injury and the claim for compensation may be served on the master of the ship as if the master were the employer; (b) if the injury is sustained and the incapacity commences on board the ship, it shall not be necessary to give any notice of injury; (c) a claim for compensation in respect of the death of a sailor shall be made within 6 months after notice of the death has been received by the claimant; (d) if a ship is lost with all hands, a claim for compensation in respect of the death of a sailor shall be made within 18 months after the date on which the ship shall be deemed under subsection (3) to have been lost with all hands;

Return to Work Act 1986 37 (e) if a sailor dies without leaving any dependants, compensation is not payable if the owner or charterer of the ship is liable under a law in force in the Territory to pay the expenses of the burial or disposal of human remains; (f) weekly payments shall not be payable in respect of a period during which the owner or charterer of the ship is liable to pay the expenses of maintenance of an injured sailor; and (g) notwithstanding any limitation of liability in any other law in force in the Territory, compensation shall be paid in full. (3) Without prejudice to any other means of proof available, for proceedings under this Act: (a) a ship is taken to have been lost with all hands on board if: (i) the ship was expected to arrive at a port at a time; and (ii) the ship did not arrive and has not been heard of for at least 12 months since that time; and (b) an official list of the crew, or the certificate of a proper authority stating that certain sailors were on board the ship, in the absence of proof to the contrary, is sufficient evidence that the sailors were on board the ship at the time of its loss.

52 Abolition of certain rights to bring action (1) Subject to section 189, no action for damages in favour of a worker or a dependant of a worker shall lie against: (a) the employer of the worker; (b) any person who, at the relevant time, was a worker employed by the same employer as the deceased or injured worker; or (c) the Nominal Insurer, in respect of: (d) an injury to the worker; or (e) the death of the worker: (i) as a result of; or (ii) materially contributed to by, an injury.

Return to Work Act 1986 38 (1A) In subsection (1) injury does not include an injury inflicted or caused by, or as the result of an action or omission of, a worker employed by the same employer as the deceased or injured worker in circumstances in which the employer of the worker would not be liable under section 22A of the Law Reform (Miscellaneous Provisions) Act 1956 to indemnify the first-mentioned worker in relation to any liability incurred by him or her or her in relation to the injury. (2) The purpose of subsection (1) is to ensure that, so far as the legislative power of the Legislative Assembly permits, no action for damages at common law shall lie in the Territory or otherwise in the circumstances described in that subsection and nothing in this Act shall be construed as derogating from that purpose. (3) Except as provided by this Act, no action for compensation or a benefit of any kind by a worker or a dependant of a worker shall lie in the Territory against the employer of the worker in respect of: (a) an injury to the worker; or (b) the death of the worker: (i) as a result of; or (ii) materially contributed to by, an injury.

53 Compensation in respect of injuries (1) Subject to this Part, if a Territory worker suffers an injury within or outside the Territory and that injury results in or materially contributes to his or her: (a) death; (b) impairment; or (c) incapacity, there is payable by his or her employer to the worker or the worker's dependants, in accordance with this Part, such compensation as is prescribed. (2) Compensation under this Act is payable only in respect of employment that is connected with the Territory.

Return to Work Act 1986 39 (3) The fact that a worker is outside the Territory when the worker suffers an injury does not prevent compensation being payable under this Act in respect of employment that is connected with the (4) Compensation under this Act does not apply in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 (Cth) applies to the worker's employment. 53AA Worker's employment connected with a State (1) A worker's employment is connected with a particular jurisdiction if: (a) the worker usually works in that employment in that jurisdiction; or (b) if no jurisdiction or no one jurisdiction is identified by paragraph (a) – the worker is usually based in the jurisdiction for the purposes of that employment; or (c) if no jurisdiction or no one jurisdiction is identified by paragraph (a) or (b) – the principal place of business in Australia of the worker's employer is located in the jurisdiction. (2) If a worker is working on a ship and no jurisdiction or no one jurisdiction is identified by subsection (1), the worker's employment is connected with the jurisdiction in which the ship is registered or (if the ship is registered in more than one jurisdiction) the jurisdiction in which the ship most recently became registered. (3) If no jurisdiction is identified by subsection (1) (or, if applicable, subsection (2)), the worker's employment is connected with the Territory if: (a) the worker is in the Territory when the worker suffers an injury; and (b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter. (4) In deciding whether a worker usually works in a particular jurisdiction, regard must be had to: (a) the worker's work history with the employer over the preceding period of 12 months; and (b) the intentions of the worker and employer;

Return to Work Act 1986 40 but regard must not be had to any temporary arrangement under which the worker works in a particular jurisdiction for a period of not longer than 6 months. (5) In deciding whether a worker is usually based in a particular jurisdiction, regard may be had to the following matters: (a) the work location specified in a worker's contract of (b) the location the worker routinely attends during the term of employment to receive directions or collect materials or equipment in relation to the work; (c) the location the worker reports to in relation to the work; (d) the location from which the worker's wages are paid. (6) In deciding the principal place of business in Australia of the worker's employer, regard may be had to the following matters: (a) the address registered on the Australian Business Register in connection with the employer's Australian Business Number (ABN); (b) if the employer is not registered for an ABN, the State or Territory indicated on the ASIC National Names Index as the principal place of business for the employer; (c) if the employer is not registered for an ABN and is not listed on the National Names Index, the State or Territory indicated by the employer's business mailing address. (7) Subject to subsection (4) or (5), in deciding whether a worker usually works in a particular jurisdiction or is usually based in a particular jurisdiction for the purposes of employment, regard must be had to any period during which the worker works in a particular jurisdiction or is in a particular jurisdiction for the purposes of employment whether or not under the statutory workers' compensation scheme of that jurisdiction the person is regarded as a worker or as working or employed in that jurisdiction. (8) For subsection (2): (a) a ship is taken to be registered in the Territory if the ship is required to be surveyed under the Marine Safety National Law as defined in section 7(1) of the Marine Act 1981; and

Return to Work Act 1986 41 (b) the registration of the ship is taken to be from: (i) for a vessel surveyed under the Marine Act 1981 – the date of initial survey under that Act; or (ii) for a vessel exempted under section 75(2)(e) of the Marine Act – 1 January 1989; or (iii) for a vessel otherwise exempted under the Marine Act 1981 – the date of commencement of this section, or the date of the vessel's arrival (or launch) in the Territory, whichever is later. 53AB Determination of jurisdiction with which worker's employment is connected (1) If the question of whether a worker's employment is connected with the Territory arises in proceedings in a court in relation to a claim for compensation under this Act, the court must: (a) determine, in accordance with section 53AA, the particular jurisdiction with which the worker's employment is connected; and (b) cause that determination to be entered in the records of the court. (2) Subsection (1) does not apply if there is a determination that must be recognised under section 53AC. 53AC Recognition of previous determination (1) This section applies if a determination has been made as to the particular jurisdiction with which a worker's employment is connected by a court of the Territory, another Territory or a State. (2) The jurisdiction determined must be recognised for this Act as the jurisdiction with which the worker's employment is connected. (3) This section does not prevent an appeal in relation to a determination. (4) If a determination is changed on appeal, subsection (2) applies in relation to the changed determination.

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53A Compensation in respect of contact with bodily fluids (1) Subject to this Part, where a worker: (a) has come or may have come into contact with bodily fluid from another person in the course of his or her employment; and (b) as a result, has a reasonable apprehension that he or she may have contracted a disease, the worker is entitled to be paid by the worker's employer: (c) the costs reasonably incurred by the worker for the purpose of obtaining medical tests in respect of that contact; and (d) the worker's salary or wages in full during any absence from his or her workplace for the purpose of obtaining those medical tests. (2) A payment made by an employer in pursuance of subsection (1)(c) or (d) is not to be taken to be an admission of liability by the employer in respect of a disease that is or may be attributable to the contact with bodily fluid.

54 Entitlement to compensation under other laws (1) This section applies where, as a result of an injury caused to a worker, the worker or his or her dependants: (a) are entitled to: (i) compensation or damages under an applicable law; or (ii) a benefit from a superannuation scheme established under an applicable law, other than a benefit financed by an employer's contributions made under an industrial award or agreement or by the worker's contributions; and (b) would, but for this section, be entitled to compensation under this Part. (2) A person is not entitled to compensation under this Part if, in respect of the injury: (a) compensation or damages have been paid or recovered under the applicable law; or (b) an award of compensation or judgment for damages has been made, given or entered under the applicable law.

Return to Work Act 1986 43 (3) Where, in respect of the injury: (a) a person receives compensation under this Part; and (b) the person: (i) is paid or recovers compensation or damages under the applicable law; (ii) obtains an award of compensation or judgment for damages under the applicable law; (iii) accepts a payment into court, or settles or compromises a claim, under the applicable law; or (iv) is paid or is entitled to receive a benefit from a superannuation scheme established under the applicable law (other than a benefit financed by an employer's contributions made under an industrial award or agreement or by the worker's contributions) because of incapacity resulting from the injury, the worker's employer is entitled to recover from that person the amount determined in pursuance of subsection (4). (4) The amount entitled to be recovered under subsection (3) is the amount determined by a Fellow of the Institute of Actuaries of Australia to be: (a) the discounted present value of compensation paid or payable to the person under this Part; or (b) equal to the amount of the compensation, damages, payment, settlement, compromise or benefit paid or payable to the person under the applicable law, whichever is the lesser. (5) Where: (a) compensation or damages are received or are to be received by a person under an applicable law in respect of an injury to a worker; and (b) a claim for compensation under this Part is made by a person in respect of an injury to the same worker,

Return to Work Act 1986 44 unless the contrary is proved, it is to be presumed that the claim for compensation under this Part is in respect of the same injury as the compensation or damages received or to be received under the applicable law. (6) In this section, applicable law means: (a) a law of the Territory other than this Act; (b) a law of the Commonwealth; or (c) a law in force in a place outside the Territory.

55 Liability in relation to disease (1) Subject to subsection (3), where a worker was employed by 2 or more employers in employment the nature of which caused a disease, compensation shall be recoverable from the employer who last employed the worker in that employment. (2) A claimant for compensation recoverable as provided in subsection (1) shall, if so requested by the employer from whom compensation, if payable, is recoverable, furnish that employer with such information as the claimant possesses as to the names and addresses of other employers who employed the worker in employment the nature of which caused the disease. (3) If the employer alleges that the disease was contracted while the worker was in the employ of some other employer, he or she may join that other employer as a party to proceedings and, if the allegation is proved, compensation, if payable, is, subject to subsection (4), recoverable from that other employer. (4) Where compensation is, pursuant to subsection (3), recoverable from an employer other than the employer who last employed the worker, and that first-mentioned employer proves to the satisfaction of the Court that the disease is being or was accelerated or aggravated by the worker's later employment with a particular employer or employers, the first-mentioned employer is entitled to recover from that particular employer or those particular employers, as the case may be, in respect of that acceleration or aggravation, such amount or amounts: (a) as agreed between the insurer of the first-mentioned employer and the insurer or insurers of that particular employer or those particular employers, as the case may be; or (b) in the absence of such agreement, as the Court determines.

Return to Work Act 1986 45 (5) For the purposes of subsection (4), insurer shall, in relation to an employer who is under section 120(2) approved to undertake the liability to pay compensation to his or her own workers, be construed as meaning that employer.

56 Payment of salary or wages for day of injury (1) A worker is entitled to be paid his or her salary or wages in full for the day on which he or she sustained an injury in respect of which compensation is payable under this Act. (2) An employer is not entitled to claim under his or her policy of insurance or indemnity in respect of a payment referred to in

57 Compensation not payable in certain circumstances Compensation is not payable under this Part in respect of an injury to a worker: (a) that was deliberately self inflicted; or (b) (not being an injury resulting in his or her death or permanent or long-term incapacity) attributable to his or her serious and wilful misconduct.

58 Compensation payable in respect of heart attack or stroke (1) Compensation is payable under this Part in respect of a heart attack injury or a stroke injury to a worker only: (a) for a heart attack or stroke injury that arose in the course of, or was caused by, a disease – if the worker's employment materially contributed to the injury or disease; or (b) for a heart attack or stroke injury that did not arise in the course of a disease and was not caused by a disease – if the worker's employment materially contributed to the injury. (2) In determining, for subsection (1), whether the worker's employment materially contributed to the injury or disease: (a) the following must be taken into account: (i) the duration of the worker's employment with the employer or employers who were the worker's employers at the time of the injury or the onset of the disease; (ii) the nature of the work performed;

Return to Work Act 1986 46 (iii) the particular tasks of the employment; (iv) the probability of the injury or disease occurring if that employment had not taken place; (v) the existence of any hereditary risks; (vi) the lifestyle of the worker; (vii) the activities of the worker outside the workplace; and (b) the material contribution of the worker's employment to the injury or disease is to be determined in accordance with section 4(8). heart attack injury means an injury to the heart, or a blood vessel supplying blood to, or associated with, the heart, that consists of, is caused by, results in or is associated with any of the following: (a) a heart attack; (b) a myocardial infarction; (c) a myocardial ischaemia; (d) angina, whether unstable or otherwise; (e) fibrillation, whether atrial, ventricular or otherwise; (f) an arrhythmia of the heart; (g) tachycardia, whether ventricular, supra ventricular or otherwise; (h) harm or damage to the blood vessel or associated plaque; (i) an impairment, disturbance or alteration of blood, or blood circulation, within the blood vessel; (j) an occlusion of the blood vessel, whether the occlusion is total or partial; (k) a rupture of the blood vessel, including a rupture of an aneurism of the blood vessel; (l) a haemorrhage from the blood vessel; (m) an aortic dissection;

Return to Work Act 1986 47 (n) any consequential physical harm or damage, including harm or damage to the brain; (o) any consequential mental harm or damage. stroke injury means an injury to the brain, or a blood vessel supplying blood to, or associated with, the brain, that consists of, is caused by, results in or is associated with any of the following: (a) a stroke; (b) a cerebral infarction; (c) a cerebral ischaemia; (d) a rupture of the blood vessel, including a rupture of an aneurism of the blood vessel; (e) a subarachnoid haemorrhage; (f) a haemorrhage from the blood vessel; (g) harm or damage to the blood vessel or associated plaque; (h) an impairment, disturbance or alteration of blood, or blood circulation, within the blood vessel; (i) an occlusion of the blood vessel, whether the occlusion is total or partial; (j) any consequential physical harm or damage, including neurological harm or damage; (k) any consequential mental harm or damage.

60 Exclusion of entitlement in respect of certain travel accidents (1) A worker is not entitled to compensation in respect of an injury sustained whilst driving a motor vehicle, as defined in the Motor Accidents (Compensation) Act 1979, after having consumed alcoholic liquor where the consumption of that liquor materially contributed to the accident giving rise to the injury, or while under the influence of a drug. (2) It is to be presumed that the consumption of the alcoholic liquor materially contributed to the accident giving rise to the injury, unless the contrary is proved, if the worker had at the time of the accident a concentration of alcohol: (a) in the breath of 0.08 grams or more per 210 litres of exhaled breath; or

Return to Work Act 1986 48 (b) in the blood of 0.08 grams or more per 100 millilitres of blood. (3) Nothing in this section affects an entitlement to compensation under Subdivision A or D of Division 3 or Division 4.

61 Settling of journey claims (1) For the purposes of determining whether an injury to a worker sustained in a motor accident arose out of or in the course of the worker's employment, regard is to be had to the document called "Guidelines for the Settling of Journey Claims" published by or on behalf of the Authority. (2) Where: (a) despite having regard to the document referred to in subsection (1), it remains in dispute as to whether compensation is payable under this Act or the MAC Act; and (b) but for this Act, compensation would be payable under the MAC Act, compensation is payable under the MAC Act until it is determined that compensation is payable under this Act. (3) Where: (a) compensation has been paid under the MAC Act in pursuance of subsection (2); and (b) it is determined that compensation should have been paid under this Act, the MAC Commission: (c) is entitled to recover the amount paid under the MAC Act from the worker's employer; and (d) may claim compensation under this Act on behalf of the person to whom compensation should have been paid under this Act. (4) For the purposes of subsection (3)(d), anything required or permitted to be done under this Act by a worker in respect of a claim for compensation is to be taken to be required or permitted to be done by the MAC Commission. MAC Act means the Motor Accidents (Compensation) Act 1979.

Return to Work Act 1986 49 MAC Commission means the Commission as defined in section 3 of the Motor Accidents (Compensation) Commission Act 2014. motor accident, see section 4(1) of the Motor Accidents (Compensation) Act 1979.

61A Maximum benefits (1) This section applies to a worker to whom compensation is payable in accordance with section 65(1BA) or (1D), in respect of an injury. (2) The worker is entitled to be paid compensation under this Division as follows: (a) if the worker has been paid compensation under section 65 in respect of the injury for a period of 260 weeks in the aggregate: (i) no other compensation under section 65 is payable to the worker in respect of the injury; and (ii) no other compensation under this Part, other than under section 71, is payable to the worker in respect of the injury for a cost that was incurred after 12 months after the end of the last of the 260 weeks; (b) if, because of the operation of section 65(1D), compensation is to be paid to a worker under section 65, other than a worker who suffers relevant permanent impairment at a percentage of the whole person equal to not less than 15%, in respect of an injury for a period of weeks shorter than the period of 260 weeks mentioned in paragraph (a) (the shorter period): (i) no compensation under section 65 is payable to the worker in respect of the injury and in respect of a period after the end of the shorter period; and (ii) no other compensation under this Part, other than under section 71, is payable to the worker in respect of the injury for a cost that is incurred after a period that ends more than 12 months after the end of the last of the relevant number of weeks.

Return to Work Act 1986 50 (2A) In this section, a reference to a week, in relation to payment, or relevant number of weeks, in relation a shorter period, means the number of weeks obtained when the number of weeks in the shorter period is subtracted from 260 weeks.

61B Notice of change of entitlement to compensation (1) This section applies when a statutory event is about to occur in relation to compensation payable to a worker. (2) The employer of the worker must give the worker notice of the (a) the date on which the statutory event is scheduled to occur; (b) an explanation of the effect of the statutory event on the compensation payable to the worker; (c) unless the statutory event is one mentioned in paragraph (a) of the definition statutory event in subsection (5) – a statement of the effect of section 61A. (3) The notice must be in writing and given to the worker by: (a) delivering it personally to the worker; or a person who has apparently attained the age of 16 years at the worker's address as shown in the claim form given to or served on the employer under section 82; or (c) sending it in a properly addressed envelope by pre-paid post to the worker at the worker's address as mentioned in paragraph (b), in which case the notice is considered to have been given when the envelope is posted. (4) Despite any other provision of this Act, the change to the compensation payable to the worker that results from the occurrence of the statutory event takes effect on the later of the following days: (a) the day that is 14 days after the employer gives the notice to the worker;

Return to Work Act 1986 51 (b) the day on which the statutory event occurs. statutory event, in relation to compensation payable to a worker for an injury, means one of the following: (a) the end of the last of the weeks during which compensation is to be paid to the worker under section 64; (b) the end of the last week in the period of 260 weeks in the aggregate mentioned in section 65(1BA); (c) the attainment of the worker's normal retiring age or future pension age, as relevant, as mentioned in section 65(1D); (d) the end of the 104 weeks mentioned in section 65(1D)(c).

62 Lump-sum compensation in respect of death (1) Subject to subsection (2), where the death of a worker results from or is materially contributed to by an injury, there is payable: (a) to the person liable to meet the expense of the worker's funeral, a funeral benefit equal to: (i) the cost of the funeral; or (ii) the prescribed amount, whichever is the lesser amount; and (b) for the benefit of the worker's dependants: (i) where the dependants are a spouse, a child or children, or a spouse and a child or children, the prescribed proportions; or (ii) such proportions as the Court determines on an application under subsection (2) having regard to the relative needs and degrees of dependency of the dependants, of an amount equal to 364 times average weekly earnings at the time the payment is made; and

Return to Work Act 1986 52 (c) for the benefit of the worker's dependants – the reasonable costs (not exceeding, in the aggregate, any amount prescribed by regulation) of one or both of the following: (i) counselling services provided to them by a counselling professional; (ii) expert financial advice. (2) For the purposes of subsection (1)(b), a person claiming to be a dependant of the deceased worker may, in the prescribed form, apply to the Court for a determination under that subsection. (3) For the purposes of subsection (1)(b)(i), the prescribed proportions are those specified in column 2 of the Table in respect of the dependants specified opposite in Column 1 of that Table. TABLE Column 1 Column 2 Dependants Proportion Spouse 100% one child 100% 2 or more children Equally between children Spouse and one child 10% to child, balance to spouse Spouse and not more than 5 children 5% to each child, balance to spouse Spouse and more than 5 children 25% divided equally between children, balance to spouse (4) Except where the Court orders otherwise, an amount payable under this section for the benefit of a dependant who is a child of a worker shall be paid, where the child has not attained the age of 18 years, to the Public Trustee appointed under the Public Trustee Act 1979 who shall hold the amount on trust for the benefit of that child until the child attains the age of 18 years. counselling professional means: (a) a medical practitioner, registered psychologist or social worker; or (b) a counsellor who has qualifications recognised by the Authority.

Return to Work Act 1986 53 counselling service means a service provided to a worker's dependants to assist them to cope with the psychological impact of the death of the worker.

63 Prescribed children's benefits (1) In addition to any amount payable under section 62(1)(b) to or for the benefit of a prescribed child who is a dependant, subject to subsection (2), there shall be paid to or for the benefit of each prescribed child of a deceased worker an amount per week equal to 10% of average weekly earnings at the time the payment is made. (2) The aggregate of all amounts paid or payable per week under subsection (1) shall not exceed 100% of average weekly earnings and where there are more than 10 prescribed children entitled to compensation under that subsection they shall be entitled in equal shares to an amount equal to 100% of average weekly earnings at the time the payment is made. prescribed child means a child of the deceased worker, or a child in relation to whom the deceased worker stood in loco parentis, and who: (a) has not attained the age of 16 years; or (b) having attained that age but not having attained the age of 21 years, is a full-time student or is physically or mentally handicapped, other than such a child who is the spouse of another person.

64 Compensation during first 26 weeks of incapacity (1) This section applies to a worker who is totally or partially incapacitated for work as the result of an injury. (2) Subject to this section, the worker is entitled to be paid compensation as follows: (a) from the date on which a medical practitioner first certifies that the worker is totally or partially incapacitated for work and that the injury is the reason for, or materially contributed to, the incapacity;

Return to Work Act 1986 54 (b) in respect of any period during which the worker is certified by a medical practitioner to be totally or partially incapacitated for work, if the injury was the reason for, or materially contributed to, the incapacity. (3) The weekly amount of the compensation is calculated as the difference between the following amounts: (a) the amount that the worker actually earned in employment during the week; (b) the worker's normal weekly earnings immediately before the first compensation date. (4) The weekly amount is in addition to any other compensation to which the worker is entitled under this Part. (5) The maximum number of weeks during which compensation is payable under this section need not be a continuous period, but may be made up of more than one period of weeks, so long as the following conditions are met: (a) the total number of weeks does not exceed 26; (b) a medical practitioner certifies that the worker is totally or partially incapacitated during each of those weeks; (c) the injury was the reason for, or materially contributed to, the incapacity during each of those weeks; (d) the worker suffered actual economic loss during each of those weeks as a result of the incapacity. (5A) A reference in subsection (5) to a week, in relation to payment, or (6) If a worker retires before the end of a period during which the worker would otherwise be entitled to compensation under this section: (a) the retirement does not affect the worker's entitlement to (b) the weekly amount of compensation continues to be calculated after the retirement as if the worker's normal weekly earnings continued despite the retirement.

Return to Work Act 1986 55 (7) This section is subject to sections 65A and 65B.

65 Long-term incapacity (1) This section applies to a worker who is totally or partially incapacitated for work as the result of an injury out of which his or her incapacity arose or that materially contributed to his or her (1B) A worker to whom this section applies must be paid compensation, in accordance with subsections (1BA) to (1D), equal to whichever of the following is the lesser at the time the payment is made: (a) 75% of the worker's loss of earning capacity; (b) 150% of average weekly earnings. (1BA) Compensation under this Subdivision for a worker, other than a worker who suffers relevant permanent impairment at a percentage of the whole person equal to not less than 15%: (a) is payable under this section for a period that does not exceed a period of 260 weeks in the aggregate (which includes the first 26 weeks for which compensation is payable under section 64) in respect of the injury; and (b) is otherwise subject to this Part. (1C) Compensation under subsection (1B): (a) is payable to a worker only after the first 26 weeks of incapacity (for which compensation is payable under section 64 to the worker); and (b) is in addition to any other compensation to which, under this Part, the worker is entitled; and (c) is otherwise subject to this Part. Note for subsection (1C) Compensation under this section and section 64 is not payable for the same period. That is, a worker is not entitled to double dip for the first 26 weeks of (1D) The following applies for the calculation of the period during which compensation is to be paid to a worker under this section: (a) if the worker's injury date is 2 years or more before the date on which the worker attains the worker's future pension age and the worker suffers relevant permanent impairment at a percentage of the whole person equal to not less than 15% –

Return to Work Act 1986 56 the compensation is to be paid: (i) if the worker's normal retiring age is later than the worker's future pension age – until the worker attains the worker's normal retiring age; or (ii) otherwise – until the worker attains the worker's future pension age; (b) if the worker's injury date is 2 years or more before the date on which the worker attains the worker's future pension age and the worker suffers relevant permanent impairment at a percentage of the whole person equal to less than 15% – the compensation is to be paid: (i) if the worker's normal retiring age is later than the worker's future pension age – until the earlier of the (A) the end of the last week in the period of 260 weeks in the aggregate mentioned in subsection (1BA); (B) the date on which the worker attains the worker's normal retiring age; or (ii) otherwise – until the earlier of the following: (A) the end of the last week in the period of 260 weeks in the aggregate mentioned in subsection (1BA); (B) the date on which the worker attains the worker's future pension age; or (c) the compensation is to be paid for 104 weeks from the injury date if: (i) the worker's normal retiring age is later than the worker's future pension age and the injury date is less than 2 years before the date on which the worker attains the worker's normal retiring age; or (ii) the worker's normal retiring age is later than the worker's future pension age and the injury date is on or after the date on which the worker attains the worker's normal retiring age; or (iii) the worker's normal retiring age is not later than the worker's future pension age and the injury date is less than 2 years before the date on which the worker attains the worker's future pension age; or

Return to Work Act 1986 57 (iv) the worker's normal retiring age is not later than the worker's future pension age and the injury date is on or after the date on which the worker attains the worker's future pension age. (2) For the purposes of this section, loss of earning capacity in relation to a worker is the difference between: (a) his or her normal weekly earnings indexed in accordance with subsection (3); and (b) the amount, if any, he or she is from time to time reasonably capable of earning in a week in work he or she is capable of undertaking if: (i) in respect of the period to the end of the first 104 weeks of total or partial incapacity – he or she were to engage in the most profitable employment (including self-employment), if any, reasonably available to him or her; and (ii) in respect of the period after the first 104 weeks of total or partial incapacity – he or she were to engage in the most profitable employment that could be undertaken by that worker, whether or not such employment is available to him or her, and having regard to the matters referred to in section 68. (3) The normal weekly earnings of a worker for the calculation of the worker's loss of earning capacity, or for subsection (8) or (9), at a particular date, are the amount calculated by using the formula in subsection (3A). (3A) The formula for subsection (3)(a) is the following: N x A C where: N is amount of the normal weekly earnings of the worker immediately before the first compensation date; A is the amount of average weekly earnings at the particular date mentioned in subsection (3); C is the amount of average weekly earnings applying at the first compensation date.

Return to Work Act 1986 58 (4) Where a worker is totally incapacitated for work, his or her normal weekly earnings in respect of the period of his or her total incapacity after the expiration of 2 years after the first day of the period in respect of which he or she first became entitled under section 64 or this section to compensation shall be taken to be: (a) in the case of a worker who was an apprentice (including an adult apprentice) immediately before the date on which he or she first became entitled to compensation: (i) as from the date on which he or she would otherwise have completed his or her apprenticeship – the full award wage for a tradesman in the trade in which the worker was an apprentice; and (ii) until that date – the normal weekly earnings that would have been his or hers had he or she continued in the apprenticeship; and (b) in the case of a worker who was a junior employee immediately before the date on which he or she first became entitled to compensation: (i) as from the date on which he or she would otherwise have ceased to earn wages at a junior rate of pay – the full award wage for a person performing the work that the junior worker performed; and (ii) until that date – the normal weekly earnings that would have been his or hers had he or she continued performing that work. (5) For the purposes of subsections (2) and (6), the most profitable employment available includes: (a) self employment; and (b) employment in a geographical location (including a place outside the Territory) away from the place where the worker normally resides where it would be reasonable to expect the worker to take up that employment and the person liable to pay compensation to the worker has undertaken to meet the reasonable expenses in moving him or her and his or her dependants to that location and other reasonable relocation expenses. (6) For the purposes of this section, a worker shall be taken to be totally incapacitated if he or she is not capable of earning any amount if he or she were to engage in the most profitable employment, if any, reasonably available to him or her, and having

Return to Work Act 1986 59 regard to the matters referred to in section 68. (7) Where a worker is totally incapacitated for work and the compensation the worker is entitled to under subsection (1B) is less than the amount calculated in accordance with subsection (12), the worker shall, notwithstanding subsection (1B), but subject to subsection (10), be entitled to compensation equal to 90% of his or her loss of earning capacity or the amount so calculated, whichever is the lesser. (8) Where a worker is partially incapacitated for work and 75% of his or her normal weekly earnings indexed in accordance with subsection (3) is less than the amount calculated in accordance with subsection (12), the worker shall, notwithstanding subsection (1B), but subject to subsection (10), be entitled to compensation equal to 90% of his or her loss of earning capacity or the percentage of his or her loss of earning capacity as determined in accordance with subsection (9), whichever is the lesser. (9) For the purposes of subsection (8), the percentage is the amount calculated in accordance with subsection (12) expressed as a percentage of the worker's normal weekly earnings. (10) Subsections (7) and (8) do not apply where the normal weekly earnings of the spouse of the worker is equal to or more than 150% of average weekly earnings. (11) For the purposes of subsection (10), normal weekly earnings of the spouse of a worker shall be determined, as for a worker, in accordance with section 49A and, for that purpose, a reference to a worker shall be construed as a reference to the spouse of a worker. (12) For the purposes of subsections (7) and (8), the amount is 50% of average weekly earnings and, in addition: (a) 12.5% of average weekly earnings, where the worker has a spouse who is, at the date of the relevant injury and at the time when compensation is paid under this section, wholly or mainly dependent on the worker; and (b) 6.25% of average weekly earnings for each prescribed child of the worker. (13) In subsection (12), prescribed child means a child of the worker, or a child in relation to whom the worker stood in loco parentis, and who: (a) has not attained the age of 16 years; or

Return to Work Act 1986 60 (b) having attained that age but not having attained the age of 21 years, is a full-time student or is physically or mentally handicapped, other than such a child who is the spouse of another person. (13A) For this section, a worker's relevant permanent impairment is to be assessed as follows: (a) subject to paragraph (b), the relevant permanent impairment is to be assessed as if it were being assessed under section 72 as permanent impairment for Subdivision C; (b) permanent impairment is not to be included in the assessment if it is: (i) a psychological or psychiatric impairment; and (ii) consequential on a physical injury other than a heart attack injury or stroke injury for which compensation is payable under section 58. (13B) In this section, a reference to a week, in relation to payment, or (14) In this section: future pension age, for a worker, means the age at which (once attained) the worker would, subject to satisfying any other qualifying requirements, be eligible to receive an age pension under the Social Security Act 1991 (Cth). injury date, for a worker, means the date of the injury the result of which is the worker's total or partial incapacity for work or that materially contributed to the worker's total or partial incapacity for work. injury pension age, for a worker who is totally or partially incapacitated, means the age that, at the injury date, the worker would, subject to satisfying any other qualifying requirements, be eligible to receive an age pension under the Social Security Act 1991 (Cth). Note The injury pension age for a worker may be 65, 65.5, 66, 66.5 or 67 years.

Return to Work Act 1986 61 normal retiring age, for a worker, means the age that workers in the industry or occupation in which the worker is employed usually retire. Note The normal retiring age may be expressed other than as a whole number of years, for example, 68.5 years or 68 years and 8 months.

65A Compensation not payable to prisoner (1) A worker is not entitled to be paid compensation under section 64 or 65 during any period during which the worker is: (a) a prisoner; or (b) a person who is: (i) detained in a prison or other correctional facility (however described) in a place outside the Territory; or (ii) otherwise a person who is in a place outside the Territory in circumstances in which, if the worker were in the Territory, the worker would be a prisoner. (2) Subsection (1) does not apply to a worker mentioned in subsection (1)(a) if the Territory is not liable to maintain the worker as mentioned in section 115 of the Correctional Services Act 2014. (3) Subsection (1) does not apply to a worker mentioned in subsection (1)(b)(ii) if, under the law of the place in which the worker is, there is no liability to maintain the worker for reasons similar to those mentioned in section 115 of the Correctional Services Act 2014. prisoner, see section 6 of the Correctional Services Act 2014.

65B Entitlement to compensation of worker residing outside Australia (1) The entitlement of a worker to receive weekly payments of compensation mentioned in section 64 or 65 is suspended when the worker begins to reside outside Australia unless the entitlement continues under this section.

Return to Work Act 1986 62 (2) The entitlement (the continued entitlement) to the weekly payments of compensation mentioned in section 64 or 65 continues even if the worker is residing outside Australia if: (a) the worker complies with the requirements prescribed by regulation when so residing outside Australia; and (b) the employer is satisfied about the worker's continued (3) However, the continued entitlement ceases when, in aggregate, the worker is paid compensation because of the application or applications of subsection (2) for 104 weeks (the period of 104 weeks includes the first 26 weeks referred to in section 64). (4) Despite subsection (3), the Court may order the continued entitlement does not cease after 104 weeks if the Court is satisfied: (a) the worker continues to be totally and permanently incapacitated; and (b) the circumstances of the worker residing outside Australia are otherwise exceptional because of the nature of the worker's incapacity or other circumstances applying to the worker; and (c) the worker would suffer undue hardship if the Court did not make an order under this subsection. Note for subsection (4) See section 104 for applications to the Court. (5) The Court's order must: (a) be made in accordance with the Regulations; and (b) specify the period (the extended period) for which the continued entitlement is extended. (6) The extended period: (a) must be a single period that does not exceed 104 weeks; and (b) starts, or is taken to have started, on a date specified in the order of the Court (which may be a date before the date of the order). (7) At the end of the extended period in relation to a worker's entitlement, the entitlement ceases while the worker is residing outside Australia.

Return to Work Act 1986 63

65C Employer not to dismiss worker (1) An employer of a worker commits an offence if: (a) the worker is totally or partially incapacitated for work as a result of an injury; and (b) the employer intentionally engages in conduct during the relevant period; and (c) the conduct results in the dismissal of the worker; and (d) the employer is reckless as to whether the worker is totally or partially incapacitated for work as a result of the injury. Maximum penalty: 200 penalty units (2) Strict liability applies to subsection (1)(a) and (c). (3) It is a defence to a prosecution for an offence against subsection (1) if the reason for the dismissal is serious misconduct by the worker. dismissal, of a worker, includes a situation in which: (a) an unreasonable employment condition is imposed on the worker that is designed to make the worker leave employment; and (b) the worker leaves the employment. relevant period, for an employer of a worker who is totally or partially incapacitated for work as a result of an injury, means the period: (a) that starts on the day on which the injury occurs; and (b) that ends 6 months after that day. serious misconduct means: (a) wilful or deliberate behaviour by a worker that is inconsistent with the continuation of the worker's contract of employment; or (b) conduct that causes serious and imminent risk to: (i) the health or safety of a person; or

Return to Work Act 1986 64 (ii) the reputation, viability or profitability of the employer's business; or (c) engaging in theft, fraud or assault in the course of employment; or (d) being intoxicated in the workplace, including being too impaired to work because of alcohol or a drug, other than a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug; or (e) refusal to carry out a reasonable instruction from the employer that is consistent with the worker's contract of employment.

66 Special rule for calculation of compensation for volunteers (1) In calculating compensation for a volunteer under section 64 or 65, the normal weekly earnings of the volunteer immediately before the date on which the volunteer first became entitled to compensation will, if less than 50% of average weekly earnings, be taken to be 50% of average weekly earnings. (2) In this section: volunteer means a person who is, under section 3(7), (8) or (8A), taken to be a worker in the employ of the Territory.

68 Assessment of most profitable employment In assessing what is the most profitable employment available to a worker for the purposes of section 65 or reasonably possible for a worker for the purposes of section 75B(3), regard shall be had to: (a) his or her age; (b) his or her experience, training and other existing skills; (c) his or her potential for rehabilitation training; (d) his or her language skills; (e) in respect of the period referred to in section 65(2)(b)(i) – the potential availability of such employment; (f) the impairments suffered by the worker; and (g) any other relevant factor.

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69 Cancellation or reduction of compensation (1) Subject to this Subdivision, an amount of compensation under this Subdivision shall not be cancelled or reduced unless the worker to whom it is payable has been given: (a) 14 days notice of the intention to cancel or reduce the compensation and, where the compensation is to be reduced, the amount to which it is to be reduced; and (b) a statement in the approved form: (i) setting out the reasons for the proposed cancellation or reduction; (ii) to the effect that, if the worker wishes to dispute the decision to cancel or reduce compensation, the worker may, within 90 days after receiving the statement, apply to the Authority to have the dispute referred to mediation; (iii) to the effect that, if mediation is unsuccessful in resolving the dispute, the worker may appeal to the Court against the decision to cancel or reduce compensation; (iv) to the effect that, if the worker wishes to appeal, the worker must lodge the appeal with the Court within 28 days after receiving a certificate issued by the mediator under section 103J(2); (v) to the effect that the worker may only appeal against the decision if an attempt has been made to resolve the dispute by mediation and that attempt has been unsuccessful; and (vi) to the effect that, despite subparagraphs (iv) and (v), the claimant may commence a proceeding for an interim determination under section 107 at any time after the claimant has applied to the Authority to have the dispute referred to mediation. (2) Subsection (1) does not apply where: (a) the person receiving the compensation returns to work or dies; or

Return to Work Act 1986 66 (aa) the person receiving the compensation fails to provide to his or her employer a medical certificate of capacity under section 91A within 14 days after being requested to do so in writing by his or her employer; or (b) the following occurs: (i) the medical certificate of capacity mentioned in section 82 specifies that the person receiving the compensation is fit for work on a particular date, being not later than 4 weeks after the date of the injury in respect of which the claim was made; (ii) the person fails to return to work on the particular date or to provide his or her employer on or before that date with another certificate as to his or her incapacity for work; or (c) the payments of compensation were obtained by fraud of the person receiving them or by other unlawful means; or (d) the Court orders the cancellation or reduction of the compensation. (3) Where compensation is to be cancelled for the reason that the worker to whom it is paid has ceased to be incapacitated for work, the statement under subsection (1) shall be accompanied by the medical certificate of capacity of the medical practitioner certifying that the person has ceased to be incapacitated for work. (4) For the purposes of subsection (1)(b), the reasons set out in the statement referred to in that subsection shall provide sufficient detail to enable the worker to whom the statement is given to understand fully why the amount of compensation is being cancelled or reduced.

70 Definition In this Subdivision permanent impairment means an impairment or impairments assessed, in accordance with the guides approved and published by the Authority, as being an impairment, or combination of impairments, of not less than 5% of the whole person.

71 Compensation for permanent impairment (1) In addition to any other compensation payable under this Part, a worker who suffers permanent impairment assessed at a

Return to Work Act 1986 67 percentage of the whole person equal to not less than 15% shall, subject to subsection (2), be paid compensation equal to that assessed percentage of 208 times average weekly earnings at the time the payment is made. (2) In addition to any other compensation payable under this Part, a worker who suffers permanent impairment assessed at not less than 85% of the whole person shall be paid compensation of 208 times average weekly earnings at the time the payment is made. (3) In addition to any other compensation payable under this Part, where a worker suffers permanent impairment assessed at a percentage of the whole person equal to less than 15%, the worker shall be paid compensation equal to the percentage specified in column 2 of the Table to this section of the relevant assessed percentage of permanent impairment specified opposite in column 1 of 208 times average weekly earnings at the time the payment is made. TABLE Column 1 Column 2 Degree of permanent impairment Percentage of compensation payable not less than 5% but less than 10% 2 10% 3 11% 4 12% 6 13% 8 14% 12 (4) Compensation payable under this section is to be paid to the (a) if no application is made under section 72(3) for a reassessment of the level of the worker's permanent impairment – not later than 14 days after the end of the 28 day period allowed for that application; or (b) if an application is made under section 72(3) for a reassessment of the worker's level of permanent impairment – not later than 28 days after the applicant is notified of the reassessment.

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72 Assessment of permanent impairment (2) The level of permanent impairment for the purposes of section 71 shall be assessed in the first instance by a medical practitioner. (3) Where a person is aggrieved by the assessment of the level of permanent impairment by a medical practitioner, the person may, within 28 days after being notified of the assessment, apply to the Authority for a reassessment of that level. (3A) Subject to subsection (3B), the Authority must, as soon as practicable after receiving an application, refer the application to a panel of 3 medical practitioners to reassess the level of permanent impairment. (3B) The Authority is not required to refer an application to a panel unless satisfied that the assessment was properly conducted and is in accordance with the guides mentioned in the definition of permanent impairment in section 70. (3C) The panel to whom an application is referred: (a) must include at least one medical practitioner appearing to the Authority to have specialist knowledge of the type of impairment in question; and (b) must not include the medical practitioner who originally assessed the level of impairment. (4) An assessment made by a panel under subsection (3A) as to the degree of permanent impairment of a worker: (a) is taken to be the level of permanent impairment suffered by the worker for the purposes of section 71; and (b) is not subject to review. (5) The costs incurred in carrying out an assessment or reassessment under this section shall be paid by the employer.

72A Enforcement of entitlement to compensation (1) This section applies if compensation payable to a worker under section 71 has not been paid. (2) On application by or on behalf of the worker or his or her employer, the registrar must issue a certificate certifying that the compensation is payable and the amount that is outstanding. (3) The certificate may be filed in the Local Court.

Subdivision D Compensation for medical, surgical and rehabilitation treatment, etc. Return to Work Act 1986 69 (4) On the filing of the certificate in the Local Court, a registrar of the Local Court must enter judgment for the worker as if the Local Court had given judgment in favour of the worker for: (a) the amount certified as being outstanding; and (b) the amount of any fees paid: (i) under this Act to obtain the certificate; or (ii) under the Local Court Act 2015 for the filing of the certificate and entering of judgment. Subdivision D Compensation for medical, surgical and rehabilitation treatment, etc.

73 Compensation for medical, surgical and rehabilitation treatment, family counselling and other costs (1) Subject to this Part and the Regulations, the employer of a worker who sustains an injury is liable to pay any costs reasonably incurred by the worker as a result of that injury for any one or more of the (a) medical, surgical and rehabilitation treatment (those costs being not more than the relevant amount set out in any guidelines published by the Authority); (b) hospitalisation and hospital treatment; (c) travelling, or being transported, to or from any place for the purpose of medical, surgical and rehabilitation treatment, hospitalisation or hospital treatment; (d) accommodation of the worker if it is necessary for the worker to be accommodated away from the worker's normal place of residence for the purpose of medical, surgical or rehabilitation treatment; (e) attendance by a registered nurse or enrolled nurse, or by some other person if, because of the injury, it is necessary for the worker to have nursing or personal attendance; (f) any other costs as are prescribed by regulation. (2) Subject to this Part and the Regulations, the employer of a worker who sustains an injury is liable to pay any costs reasonably incurred by the worker for family counselling provided to the worker or to one or more members of the worker's immediate family.

Subdivision D Compensation for medical, surgical and rehabilitation treatment, etc. Return to Work Act 1986 70 (3) The costs mentioned in subsection (2) are payable: (a) in the case of a family counselling provided to the worker – in addition to any costs payable under subsection (1); and (b) only to the extent that the total of the costs incurred under subsection (2) for the worker and all members of the worker's immediate family does not exceed 150% of average weekly earnings at the time the costs are incurred. (4) An employer who decides to dispute that particular costs incurred, or proposed to be incurred, by a worker mentioned in subsection (1) or (2) are, or would be, reasonably incurred as a result of an injury must, within 14 days of the decision to dispute the reasonableness of the costs, serve on the worker: (a) a written notice stating: (i) that the employer believes that the treatment or family counselling does not relate to the injury or is not required; and (ii) the reasons for the employer's belief; and (b) a statement of the rights of appeal under this Act; and (c) if the belief is that the treatment is not required – an opinion of a medical practitioner supporting the employer's belief. (5) If the dispute relates to costs incurred under subsection (1), the employer must also serve the following on the worker's medical practitioner: (a) a copy of the written notice mentioned in subsection (4)(a); (b) if applicable – a copy of the opinion mentioned in subsection (4)(c). (6) In this section: family counselling means counselling that: (a) is provided to a worker, or a member of the worker's immediate family, to assist the worker or family member to cope with the psychological impact of the injury sustained by the worker's injury; and

Return to Work Act 1986 71 (b) is provided: (i) individually to the worker or a member of the worker's immediate family; or (ii) to a group all the members of which are the worker and one or more members of the worker's immediate family; and (c) is provided by: (i) a medical practitioner, registered psychologist or social worker; or (ii) a counsellor who has qualifications recognised by the Authority.

74 Recovery from worker (1) This section applies if there has been an overpayment of benefits under this Act. (2) Unless otherwise ordered by the Court, an overpayment cannot be recovered from the worker to whom the overpayment was made if: (a) the benefit payable was incorrectly calculated by the employer or insurer who made the payment; or (b) the payment was made in respect of a period more than 6 months before the date on which recovery of the overpaid amount was sought. (3) In deciding whether to order that recovery of an overpaid amount is to be permitted, the Court must take into account whether the worker should reasonably have been aware that the benefit had been overpaid. (4) This section applies in relation to a worker who is, or was, a public sector employee, despite anything to the contrary in the Financial Management Act 1995.

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74A Definition attendant care services, in relation to an injured worker, means services (other than medical and surgical services or nursing care) that are required to provide for the worker's essential and regular personal care.

75 Purpose of Division The purpose of this Division is to ensure the rehabilitation of an injured worker following an injury.

75A Employer to assist injured worker to find suitable employment (1) An employer who is liable under this Part to compensate an injured worker must do the following: (a) take reasonable steps to ensure that suitable employment is provided to the worker in accordance with the worker's medical certificate of capacity; (b) take reasonable steps to ensure that efforts to retrain the worker are undertaken if required to enable the worker to engage in the suitable employment; (c) give a proposal in writing for a return to work plan to the worker within 7 days after the employer becomes aware that the worker's total or partial incapacity is likely to exceed 28 days. (2) An employer commits an offence if: (a) the employer intentionally engages in conduct; and (b) the conduct results in the contravention of subsection (1)(a) or (b). Maximum penalty: 200 penalty units (3) Strict liability applies to subsection (2)(b). (4) An employer who contravenes subsection (1)(c) commits an

Return to Work Act 1986 73 (5) An offence against subsection (4) is an offence of strict liability. (6) For subsection (1)(a): (a) employment is suitable for a worker if it requires the worker to perform work for which the worker is fit as specified in the worker's medical certificate of capacity, taking the following matters into account: (i) the worker's age; (ii) the worker's experience, training and other skills; (iii) the worker's potential for rehabilitation training; (iv) the worker's language skills; (v) the impairments suffered by the worker; and (b) the provision of suitable employment includes the referral of the worker to the alternative employer incentive scheme developed by the Authority if the employer does not have other suitable employment available. (6A) To avoid doubt, the giving of a proposal for a return to work plan under subsection (1)(c) is not providing a program of a type mentioned in section 75B(1A). Note for subsection (6A) An employer may elect to use an accredited vocational rehabilitation provider to prepare a proposal for a return to work plan, but it is not necessary if the employer does not wish to do so. (7) If the worker is working with another employer under the alternative employer incentive scheme, the worker's employer is liable to compensate the worker for any aggravation, acceleration or exacerbation of the injury that occurs within 1 year after the worker commences employment with the other employer.

75B Worker to undertake reasonable treatment and training, or assessment (1) Where compensation is payable under Subdivision B of Division 3 to a worker, the worker shall undertake, at the expense of the worker's employer, reasonable medical, surgical and rehabilitation treatment or participate in rehabilitation training or, as appropriate, in workplace based return to work programs, or as required by his or her employer, present himself or herself at reasonable intervals to a person for assessment of his or her employment prospects.

Return to Work Act 1986 74 (1A) The employer of a worker who participates in a rehabilitation program or workplace based return to work program under subsection (1) must ensure that program is provided by an accredited vocational rehabilitation provider. (2) Where a worker unreasonably fails to undertake medical, surgical and rehabilitation treatment or to participate in rehabilitation training or a workplace based return to work program which could enable him or her to undertake more profitable employment, he or she shall be deemed to be able to undertake such employment and his or her compensation under Subdivision B of Division 3 may, subject to section 69, be reduced or cancelled accordingly. (3) Where a worker so required under subsection (1) unreasonably refuses to present himself or herself for assessment of his or her employment prospects, he or she shall be deemed to be able to undertake the most profitable employment that would be reasonably possible for a willing worker with his or her experience and skill and who has sustained a similar injury and is in similar circumstances, having regard to the matters referred to in section 68, and his or her compensation under Subdivision B of

Division 3 may, subject to section 69, be reduced or cancelled

76 Rehabilitation training and workplace modification (1) In addition to any other compensation under this Part, an employer shall pay the costs incurred for such rehabilitation training and workplace modification as is reasonable and necessary for the purpose of this Division for a worker who suffers or is likely to suffer a permanent or long-term incapacity. determining what is necessary and reasonable rehabilitation training and workplace modification in a particular case, there shall be taken into account: (a) the cost of compensation payments and medical and other expenses which will or are likely to be incurred if no rehabilitation training is provided or workplace modification carried out; (b) the likely cost of the rehabilitation training and workplace modification and of alternative training or modifications, if any, available and possible;

Return to Work Act 1986 75 (c) the likely opportunities for the gainful employment of the worker after the proposed training or workplace modification compared with those if no such training was provided or modification carried out; (d) the likely psychological effect on the injured worker of receiving or not receiving the proposed training; (e) the worker's suitability for and attitude to the training, and his or her suitability for and attitude to any other training available and possible; and (f) in the case of workplace modifications: (i) the likely duration of the employment by the employer of the worker; (ii) the benefit or detriment to the employer, or to other workers employed at a workplace, of the workplace modifications; and (iii) the ability of the employer to provide the worker with suitable employment. (3) For the purposes of this section, rehabilitation training includes a workplace based return to work program.

77 Additional travel costs (1) In addition to any other compensation under this Part, an employer shall pay to a worker who has suffered a significant reduction in his or her mobility in the community as the result of his or her suffering a permanent or long-term incapacity and who has not received a benefit under section 78 by the modification of a vehicle, and would not safely be able to drive a motor vehicle no matter how reasonably modified the vehicle, any costs incurred by the worker (in excess of those which he or she would have incurred had he or she not suffered the incapacity) as are reasonable and necessary for the purpose of this Division to enable the worker to achieve reasonable mobility in the community. determining what is a reasonable and necessary payment referred to in subsection (1) in a particular case, there shall be taken into account: (a) the effect of the payments on the likelihood of the worker obtaining and retaining gainful employment;

Return to Work Act 1986 76 (b) the difficulty faced by him or her in achieving reasonable mobility in the community; and (c) the alternative means of transport available to him or her.

78 Other rehabilitation (1) Subject to this section, in addition to any other compensation under this Part, an employer shall pay the costs incurred for such home modifications, vehicle modifications and household and attendant care services as are reasonable and necessary for the purpose of this Division for a worker who suffers or is likely to suffer a permanent or long-term incapacity. determining what are reasonable and necessary home modifications, vehicle modifications and household and attendant care services in a particular case, there shall be taken into account: (a) in relation to home modifications: (i) the cost, and the relevant benefit to the worker, of the proposed modifications; (ii) the difficulties faced by him or her in: (A) gaining access to; (B) enjoying reasonable freedom of movement in; or (C) living independently in, his or her home without the proposed modifications; (iii) the likely duration of his or her residence in the home; (iv) where the home is not owned by the worker, the permission of the owner; (v) the likely cost of reasonable alternative living arrangements; and (vi) the likely psychological effect on the worker of not having the proposed modifications made; (b) in relation to vehicle modifications: (i) the cost and relevant benefit to the worker of the proposed modifications;

Return to Work Act 1986 77 (ii) the difficulty faced by him or her in: (A) driving or operating; (B) gaining access to; or (C) enjoying freedom and safety of movement in, the vehicle without the proposed modifications; (iii) alternative means of transport available to him or her; and (iv) the effect of the modifications on his or her likelihood of obtaining and retaining gainful employment; (c) in relation to household services: (i) the extent to which household services were provided by the worker before the relevant injury and the extent to which he or she is able to provide those services after that date; (ii) the number of household family members, their ages and their need for household services; (iii) the extent to which household services were provided by other household family members before the relevant injury; (iv) the extent to which other household family members or other family members might reasonably be expected to provide household services for themselves and for him or her after the relevant injury; and (v) the need to avoid substantial disruption to the employment or other activities of the household family members; and (d) in relation to attendant care services: (i) the nature and extent of the worker's injury and the degree to which that injury impairs his or her ability to provide for his or her personal care; (ii) the extent to which such medical services and nursing care as may be received by him or her provide for his or her essential and regular personal care;

Return to Work Act 1986 78 (iii) where he or she so desires, the extent to which it is reasonable to meet his or her desire to live outside an institutional environment; (iv) the extent to which attendant care services are necessary to enable him or her to undertake or continue (v) any assessment made, at the request of the insurer, by persons having expertise in the worker's rehabilitation; (vi) any standard developed or applied by a government department or public authority in respect of the need of disabled persons for attendant care services; and (vii) the extent to which a relative of the worker might reasonably be expected to provide attendant care services to him or her. (3) An employer shall not be liable to pay the costs incurred for home modifications except where the worker for whose benefit the modifications are or are to be carried out is severely impaired in his or her mobility or ability to live independently within the home. (4) Without limiting subsection (2)(c), in relation to reasonable and necessary household services, the reasonable costs of childcare, including overnight childcare, are included for a period when the worker is unable to access child care or child minding support from family members and the worker is: (a) hospitalised due to the compensable injury; or (b) undergoing surgery directly related to the compensable injury.

Division 4A Settlement by agreement of entitlement to compensation

78A Settlement by agreement (1) As an alternative to being paid an amount, or all amounts, payable under this Act in respect of an injury, a claimant may enter into an agreement of one of the following types: (a) an agreement with the employer for payment of a lump sum; (b) an agreement with the employer for a structured settlement.

Return to Work Act 1986 79 (1A) However, an agreement purportedly entered into in accordance with subsection (1) is void if the agreement provides for an amount as settlement of all amounts payable for any of the following in relation to a person who has suffered a catastrophic injury: (a) medical treatment; (b) pharmaceutical treatment; (c) dental treatment; (d) ambulance transportation; (e) respite care; (f) attendant care services; (g) domestic assistance; (h) aids and appliances intended to assist a person to live a normal lifestyle, or to help prevent further injury or worsening of a health condition; (i) prosthetics, including limbs, eyes and teeth; (j) educational and vocational training; (k) home, transport and workplace modification; (l) a service or treatment prescribed by regulation. (2) If an agreement mentioned in subsection (1) becomes enforceable under this section, the claimant is not entitled to any future payments under this Act in respect of the injury to which the claimant's compensation relates. (3) An agreement relating to the payment of compensation, other than an agreement under this Division, or an agreement that is substantially in accordance with this Division and that is reached before a court, is void. (4) Before an agreement under subsection (1) is entered into, the following conditions must be met: (a) the employer must invite the claimant to obtain independent legal advice from a legal practitioner of the claimant's choice; (b) the employer must invite the claimant to obtain expert financial advice from a person of the claimant's choice who is qualified to give expert financial advice;

Return to Work Act 1986 80 (c) the claimant must confirm in writing to the employer that: (i) the claimant has received the advice mentioned in paragraph (a); and (ii) the claimant either has received the advice mentioned in paragraph (b) or does not elect to receive that advice. (4A) Whether or not an agreement is entered into, the employer must pay the reasonable costs of: (a) the legal practitioner who gave the legal advice; and (b) if the claimant elects to obtain expert financial advice – the person who gave that advice. (4B) Any agreement entered into is not enforceable until subsection (4A) is satisfied. (5) If an agreement mentioned in subsection (1), including an agreement in relation to a claim where liability is disputed by the employer, is entered into in respect of payments for a period that starts before 104 weeks after the claimant first becomes entitled to compensation: (a) the claimant may withdraw from the agreement at any time during the cooling-off period; and (b) the claimant may request further advice of the kind mentioned in subsection (4)(a) or (b), or both, at any time during the cooling-off period; and (c) the employer must pay the reasonable costs of that advice; and (d) if, after that advice is received, the claimant requests an amendment to the agreement – the agreement is subject to the amendment being made in a way that is acceptable to the claimant and the employer. (5A) If liability is disputed as mentioned in subsection (5), any payment under an agreement mentioned in subsection (1) made by the (a) is made on a "without prejudice" basis; and (b) is not taken to be an admission by the employer that the claimant has any entitlement to compensation in relation to an injury suffered by the claimant and to which the agreement relates; and

Return to Work Act 1986 81 (c) is not evidence that the employer is liable to make any, or any further, payments under this Act as compensation to the claimant. (5B) If, during the cooling-off period, the claimant withdraws from an agreement entered into with the employer: (a) any payment (the repayment amount) made by the employer in accordance with the agreement is repayable by the claimant to the employer; and (b) the repayment amount is a debt due and payable by the claimant on demand by the employer within the time (not less than 14 days) specified in the demand. (5C) If the claimant fails to repay to the employer all or any of the repayment amount within the time specified, the employer may: (a) set-off the unpaid amount against any further entitlement to compensation that the claimant may establish against the employer after the claimant withdraws from the agreement; or (b) initiate legal proceedings to recover the amount remaining unpaid. (6) In this section: catastrophic injury means an injury of a type prescribed by regulation that meets the eligibility criteria prescribed for an injury of that type. cooling-off period, in relation to an agreement under subsection (5), means a period that: (a) starts on the day on which the agreement is entered into; and (b) ends 6 months after that day. structured settlement means an agreement between a claimant and an employer providing for the payment of amounts otherwise payable under this Act in respect of an injury by one or both of the following means: (a) periodic payments funded by an annuity or other agreed means; (b) periodic payments in respect of future reasonable expenses for medical, hospital, pharmaceutical or attendant care services, payable as those expenses are incurred.

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78B Lump sum agreement for particular period (1) A claimant may enter into an agreement with the employer for payment of a lump sum instead of being paid an amount, or all amounts, otherwise payable under this Act during a period in respect of an injury. (2) Such an agreement may contain conditions on the payment of the lump sum, including conditions relating to one or more the following uses for part of the sum: (a) education or other acquisition or development of new skills by the claimant, including skills related to the claimant becoming self-employed; (b) retraining or job-seeking activities carried out by the claimant; (c) modifications to the workplace to enable the claimant to return to work; (d) payment of carers, including during periods of travel for the claimant. (3) If such an agreement is entered into, no person is entitled to any payments under this Act in respect of the period and the injury to which the claimant's compensation relates. (4) Despite subsection (3), the worker may claim a payment under this Act for the period and the injury to which the compensation relates if the worker can demonstrate that: (a) the lump sum was inadequate to compensate the worker with respect to rehabilitation and other needs under this Act or to which the employer agreed; or (b) the worker incurred expenses beyond those that were contemplated by the worker and the employer when the agreement was entered into.

80 Notice of injury and claim for compensation (1) Subject to this Act, a person shall not be entitled to compensation unless notice of the relevant injury has, as soon as practicable, been given to or served on the worker's employer. (2) An employer who receives a claim for compensation shall be deemed to have been given notice of the injury to which it relates.

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81 Form of notice of injury (1) Notice of an injury: (a) may be given orally or in writing; (b) shall, subject to section 84(2), be given to: (i) the employer or, if there is more than one employer, to one of the employers; (ii) a person under whose supervision the worker is employed; or (iii) a person designated for the purpose by the employer; (c) shall include the name and address of the person injured; and (d) shall include the date on which the injury occurred and the cause of the injury. (2) Where an employer has received notice of an injury, he or she shall record that fact in records kept for that purpose.

82 Form of claim (1) A claim for compensation shall: (a) be in the approved form; and (b) unless it is a claim for compensation under section 62, 63 or 73 – be accompanied by a medical certificate of capacity in a form approved by the Authority; and (c) subject to section 84(3), be given to or served on the employer. (2) If the claim and medical certificate of capacity are not given or served at the same time, the remaining document shall be given or served on the employer within 28 days after the first document is given or served and the claim for compensation shall be deemed not to have been made until the day on which the remaining document is given to or served on the employer. (3) A defect, omission or irregularity in a claim or medical certificate of capacity shall not affect the validity of the claim and the claim shall be dealt with in accordance with this Part unless the defect, omission or irregularity relates to information which is not within the knowledge of or otherwise ascertainable by, the employer or his or her insurer.

Return to Work Act 1986 84 (4) if the claim form specifies that the worker is required to authorise the release of information concerning the worker's injury: (a) the form may specify that the information may be released to one or more of the following persons: (i) the worker's employer; (ii) the worker's employer's insurer; (iii) a legal practitioner, medical practitioner, investigator, accredited vocational rehabilitation provider, or any other person reasonably consulted by the employer or insurer for making a decision as to the payment of the claim for (b) the worker must authorise the release of the information in accordance with the form; and (c) the claim for compensation by the worker is not considered to have been made until the authorisation is given. (5) An authorisation under subsection (4) is irrevocable. (6) A medical certificate of capacity referred to in subsection (1)(b) has effect only for the prescribed period.

83 Service of claim (1) A claim for compensation may be given or served on an employer by: (a) giving it to or serving it personally on the employer; or a person who has apparently attained the age of 16 years at, or sending it by pre-paid post to the employer at, the employer's usual or last known place of residence or business. (2) Subsection (1) is in addition to and not in derogation of provisions of the Corporations Act 2001 relating to the service of documents.

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84 Employer to forward incident report and claim (1) An employer shall, immediately on receiving a claim for compensation, complete the employer's report section of the claim form and, within 3 working days after receiving the claim: (a) where the employer is a self-insurer – forward a copy of the claim to the Authority; and (ab) if the employer is uninsured – forward the claim to the Nominal Insurer and a copy of the claim to the Authority; and (b) in all other cases – forward the claim, and a copy, to his or her insurer; and (c) in all cases – retain a copy of the claim for his or her own records. (2) An insurer who is given notice of a claim under section 81 or receives a claim forwarded under subsection (1) shall, within 10 working days after the notice is given or the claim received, forward a copy to the Authority. (3) Despite sections 81 and 82, a person making a claim for compensation for an injury may lodge the claim with the relevant insurer or the Authority if the person becomes aware that the (a) has not complied or is not likely to comply with subsection (1)(a) or (b); or (b) is refusing to receive the claim; or (c) cannot be identified; or (d) cannot be found; or (e) is dead; or (f) is a corporation which has been wound up; or (g) is uninsured. (4) Where under subsection (3) a person lodges a claim for compensation with the relevant insurer or the Authority: (a) the insurer shall give to the Authority a copy of the claim and accompanying documents; or (b) the Authority shall give to the relevant insurer the claim and accompanying documents,

Return to Work Act 1986 86 within 10 working days after the insurer or Authority receives them. (5) An employer who: (a) refuses to receive a claim for compensation; or (b) dismisses a worker from employment for the reason only that the worker has given or attempted to give to the employer or the Authority a claim for compensation, is guilty of an offence. Maximum penalty for an offence against this section: In the case of a body corporate – 85 penalty In the case of a natural person – 25 penalty 6 penalty units. In the case of a natural person – 1.2 penalty units.