Div 3Fundamental principles, rights and obligations

Division 3—Fundamental principles, rights and obligations 13—The Corporation (1) The Corporation, in acting under and for the purposes of this Act, must— (a) adopt a service‑orientated approach that is focused on early intervention and the interests of workers and employers; and (b) seek to act professionally and promptly in everything that it does; and (c) be responsible and accountable in its relationships with others; and (d) without limiting a preceding paragraph, take reasonable steps to comply with any request made by a worker under section 15(2). (2) The Corporation must, in connection with subsection (1), develop and maintain plans or strategies that are designed to establish practices and procedures under which the specific circumstances of an injured worker and his or her employer will be addressed and with the objective of— (a) ensuring early and timely intervention occurs to improve recovery and return to work outcomes including after retraining (if required); and (b) achieving timely, evidence based decision-making that is consistent with the requirements of this Act; and (c) wherever possible, providing a face to face service where there is a need for significant assistance, support or services; and (d) ensuring regular reviews are taken in relation to a worker's recovery and, where possible, return to work; and (e) ensuring the active management of all aspects of a worker's injury and any claim under this Act; and (f) encouraging an injured worker and his or her employer to participate actively in any recovery and return to work processes; and (g) minimising the risk of litigation. (3) The policies and principles set out in this section do not give rise to substantive rights or liabilities (compared to rights or liabilities established or prescribed under other relevant provisions of this Act). 14—Service standards The Corporation must adopt and apply the service standards set out in Schedule 5 (but these standards do not, in themselves, give rise to substantive rights or liabilities (compared to rights or liabilities established or prescribed under other relevant provisions of this Act)). 15—Workers (1) A worker who has suffered a work injury is entitled to expect— (a) early intervention by the Corporation in providing recovery and return to work services; and (b) the Corporation to actively manage the worker's injury and claim and to provide services in a manner consistent with the requirements of this Act; and (c) his or her employer to participate and cooperate in assisting the worker's recovery and return to work and to reasonably support the worker in receiving any benefit available under this Act. (2) A worker may reasonably request the Corporation to review the provision of any service to the worker under this Act or to investigate any circumstance where it appears that the worker's employer is not complying with any requirement of this Act as to the retention, employment or re‑employment of the worker. (3) A worker who has suffered a work injury must, in a manner consistent with the objects of this Act— (a) participate in all activities designed to enable the worker to recover and return to work as soon as is reasonably practicable; and (b) without limiting paragraph (a)— (i) participate and cooperate in the establishment of a recovery/return to work plan; and (ii) comply with obligations imposed on the worker by or under a recovery/return to work plan; and (c) ensure that the Corporation is provided with current medical certificates (in the designated form provided by recognised health practitioners) with respect to any incapacity for work for which weekly payments are being made to the worker under this Act so as to provide evidence to support the continuation of those payments; and (d) return to suitable employment when reasonably able to do so; and (e) take reasonable steps to mitigate any possible loss on account of the work injury. (4) Subsection (3)(a), (b) and (d) will not apply in relation to a seriously injured worker (who may decide the extent to which he or she will seek to participate in any processes designed to have the worker return to work). (5) This section does not give rise to substantive rights or liabilities (but nothing in this section detracts from rights or liabilities established or prescribed under other relevant provisions of this Act (including section 16)). 16—Worker's duty to give notice of injury (1) If a worker suffers a work injury, notice of that injury must be given— (a) to the employer by whom the worker is employed at the time of the occurrence of the injury; or (b) if the worker is not in employment or is self-employed—to the Corporation. (2) Notice of an injury should be given— (a) if practicable within 24 hours after the occurrence of the injury but, if that is not practicable, as soon as practicable after the occurrence of the injury; (b) if the worker is not, immediately after the occurrence of the injury, aware of the injury—as soon as practicable after the worker becomes so aware; (c) if the worker dies without having become so aware or before it is practicable to give such a notice—as soon as practicable after the worker's death. (3) Notice of an injury— (a) may be given orally or in writing; and (b) should specify to the best of the knowledge, information and belief of the person giving the notice— (i) the day on which the injury occurred; and (ii) the place at which the injury occurred; and (iii) the nature of the injury; and (iv) the cause of the injury. (4) For the purposes of this section, notice of an injury will be taken to have been given to an employer if— (a) it is given to— (i) the employer at any place of business of the employer; or (ii) any person under whose supervision the worker was employed at the time of the injury; or (iii) any person designated for the purpose by the worker's employer; or (b) it is given to the employer in the manner prescribed by the regulations. (5) A person by whom a notice under this section is given orally must, at the request of the person to whom the notice is given, complete a written statement in a form determined by the Corporation. (6) Subject to subsection (8), if an employer (not being a self-insured employer) receives notice of an injury given or purportedly given under this section the employer must, within 5 business days after the receipt of the notice, send a copy of the notice to the Corporation. (7) If it appears from a notice under this section that the worker was not, at the date of the notice, in the employment of the employer from whose employment the injury arose, the Corporation must (where it is practicable to do so) send a copy of the notice to that employer. (8) The Corporation may, by notice in the Gazette— (a) exclude from the application of this section injuries of a class specified in the notice; (b) vary, in relation to cases of a specified class, the time at which an employer is required to report to the Corporation under this section. 17—Employers (1) An employer of a worker who has suffered a work injury is entitled to expect— (a) early intervention by the Corporation in providing recovery and return to work services to the worker; and (b) the Corporation to act fairly and reasonably in a manner consistent with the requirements of this Act; and (c) support in managing claims and the provision of services available to the worker under this Act. (2) The employer of a worker who has suffered a work injury must, in a manner consistent with the objects of this Act, so far as is reasonably practicable— (a) support the worker in the worker's participation in activities designed to enable the worker to recover and return to work; and (b) without limiting paragraph (a)— (i) participate and cooperate in the establishment of any recovery/return to work plan that is required for the worker; and (ii) comply with obligations imposed on the employer by or under a recovery/return to work plan for the worker; and (c) take reasonable steps to mitigate any possible loss on account of the work injury. (3) This section does not give rise to substantive rights or liabilities (but nothing in this section detracts from rights or liabilities established or prescribed under other relevant provisions of this Act (including section 18)). 17A—Employer and Corporation not to be present at examination or treatment of worker without consent (1) Subject to this section, a worker's employer or the Corporation must not be present while a worker is— (a) being physically or clinically examined, or treated, by a health practitioner; or (b) undergoing any diagnostic examination or test required for the purposes of the worker's treatment by a health practitioner. (2) A worker's employer or the Corporation may be present while the worker is at an examination, treatment or testing referred to in subsection (1)(a) or (b)— (a) if the worker gives written agreement to their presence in the designated form; or (b) in circumstances prescribed by the regulations. (3) Nothing in this section prevents a worker's employer or the Corporation from being present during a consultation involving the worker and a health practitioner for the purposes of discussing the worker's recovery and return to work. 18—Employer's duty to provide work (1) If a worker who has been incapacitated for work in consequence of a work injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), including if the worker has ceased to be incapacitated for work in consequence of the work injury the employer from whose employment the injury arose (the pre‑injury employer) must provide suitable employment for the worker (the employment being employment for which the worker is fit and, subject to that qualification and this section, so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was working immediately before the incapacity). (2) Subsection (1) does not apply if— (a) it is not reasonably practicable to provide employment in accordance with that subsection (and the onus of establishing that lies on the employer); or (b) the worker left the employment of that employer before the commencement of the incapacity for work; or (c) the worker terminated the employment after the commencement of the incapacity for work; or (ca) the worker's employment with the pre-injury employer has been properly terminated on the ground of serious and wilful misconduct (and the onus of establishing that lies on the employer); or (d) new or other employment options have been agreed to by the worker under section 25(10a); or (e) the worker has otherwise returned to work with the pre‑injury employer or another employer. (3) A worker who has been incapacitated for work in consequence of a work injury who seeks employment with the pre-injury employer in accordance with this section must, for the purpose of seeking the employment— (a) give written notice to the employer (a subsection (3) notice)— (i) confirming that they are ready, willing and able to return to work with the employer; and (ii) providing information about the type of employment that the worker considers that they are capable of performing; and (iii) if the worker was a labour hire worker at the time of the work injury, the injury arose from employment while the worker was supplied to a host employer and the worker seeks the host employer to cooperate with the pre-injury employer in the provision of suitable employment to the worker—containing a statement to that effect; and (b) comply with any other requirements prescribed by the regulations. (4) A subsection (3) notice must be supported by evidence of the worker's capacity for work. (4a) A worker who gives a subsection (3) notice to their pre-injury employer must, if relevant, give the host employer a copy of the subsection (3) notice and the supporting evidence under subsection (4) as soon as is reasonably practicable after giving the notice to the pre-injury employer. (4b) The pre-injury employer must, within 1 month of receiving a subsection (3) notice from a worker, notify the worker in writing whether they will provide the worker— (a) with suitable employment of the type the worker considers that they are capable of performing (as set out in the subsection (3) notice); or (b) with other suitable employment (being other suitable employment that the pre‑injury employer is willing to provide). (4c) If the pre-injury employer— (a) refuses to provide the worker with suitable employment, the pre‑injury employer must set out in the notice under subsection (4b) the grounds on which the refusal is made; or (b) notifies the worker that they will provide other suitable employment under subsection (4b)(b), the pre-injury employer must set out in the notice the reasons why— (i) employment of a kind referred to in subsection (4b)(a) is not being provided; and (ii) the pre-injury employer considers the other suitable employment to be suitable. (4d) If the pre-injury employer refuses or otherwise fails to provide suitable employment under this section, or the worker considers that any employment offered by the pre-injury employer under subsection (4b)(b) is not suitable, the worker may apply to the Tribunal for an order under subsection (5)— (a) within 1 month after the date on which the pre-injury employer provided written notice under subsection (4b); or (b) if the pre-injury employer failed to provide written notice under subsection (4b)—within 1 month after the end of the 1 month period in which the employer was required to give the notice under that subsection. (4e) Subsections (1) to (4d) operate subject to the qualification that the worker cannot apply to the Tribunal for an order under subsection (5) if, at the time of giving a subsection (3) notice to the employer, the worker had ceased to be incapacitated for work in consequence of the work injury and did not give that notice within 6 months of ceasing to be incapacitated. (5) If, on an application under subsection (4d), the Tribunal is satisfied that it is not unreasonable for the employer to provide employment to the worker, the Tribunal must order the employer to provide to the worker employment specified by the Tribunal unless the Tribunal, in the exercise of its adjudicative function, determines otherwise. (5a) In making an order under subsection (5), the Tribunal may— (a) specify any 1 or more of the following: (i) the nature and range of duties to be provided in the suitable employment; (ii) the nature of any adjustments the employer must make to enable the worker to perform those duties; (iii) the number of hours each day or week that the worker is to be provided with suitable employment; and (b) as part of the order, order that any of the specified matters set out in paragraph (a) be implemented in stages, in accordance with a recovery/return to work plan or on some other reasonable basis. (5b) The Tribunal may also, in making an order under subsection (5) in a case involving a worker who included a statement of a kind referred to in subsection (3)(a)(iii) in their subsection (3) notice, make any order it considers appropriate requiring the host employer to comply with subsection (16a) (and a host employer has the right to be heard in any proceedings in which such an order is sought). (5c) Subject to subsection (5d), the Tribunal may, in the case of an employer that is— (a) a member of a group of self‑insured employers comprised of related bodies corporate; or (b) the Crown or an agency or instrumentality of the Crown, make an order under subsection (5) that the employment be provided by— (c) if paragraph (a) applies, the pre‑injury employer or another member of the group (as specified in the order); or (d) if paragraph (b) applies, the Crown or an agency or instrumentality of the Crown. (5d) In a case where subsection (5c)(a) applies and the Tribunal determines to make an order under subsection (5), the order should require that the employment be provided by the pre-injury employer unless there are good reasons for it to be provided by another member of a self-insured group. (5e) If the Tribunal makes an order in favour of a worker under subsection (5), the Tribunal must make an order that the employer pay an amount (the prescribed amount) to the worker to reflect the wages or salary the worker would have been expected to receive in the suitable employment if it were provided during the period from the day on which the worker provided the subsection (3) notice to the employer until the making of the order (the relevant period). (5f) In determining the prescribed amount, the Tribunal must— (a) apply the principle that the purpose of ordering the payment of the prescribed amount is to put the worker in the financial position that they would have been in, in terms of relevant remuneration during the relevant period, if the suitable employment had been provided during the relevant period; and (b) adopt the worker's notional weekly earnings during the relevant period for the purposes of the determination, unless the Tribunal is satisfied that there is good reason to adopt a different amount to represent the worker's weekly earnings during the relevant period (or part of the period); and (c) in relation to any part of the relevant period where the worker was entitled to weekly payments under Part 4 Division 4, order payment of an amount that represents the difference between— (i) the relevant remuneration the worker would have been entitled to receive if the suitable employment had been provided during the period; and (ii) the weekly payments the worker received during the period; and (d) in relation to any part of the relevant period where the worker was not entitled to weekly payments under Part 4 Division 4, take into account any remuneration earned by the worker from employment or other work during the period. (5g) For the purposes of subsection (5f), relevant remuneration during the relevant period means the sum of— (a) the wages or salary the worker would have been expected to receive from suitable employment during that period (determined in accordance with subsection (5f)(b)); and (b) any weekly payments the worker would have been entitled to receive under Part 4 Division 4 during that period if the worker had received the wages or salary referred to in paragraph (a). (5h) Despite subsection (5e) or (5f), the Tribunal may reduce the prescribed amount in a particular case having regard to the circumstances of the case. (6) A party (other than the relevant compensating authority) to proceedings before the Tribunal under this section is entitled, subject to subsections (8) and (9) and any limits prescribed by regulation, to an award against the relevant compensating authority for the party's reasonable costs of the proceedings before the Tribunal. (7) An award of legal costs cannot exceed 85% of the amount that would be allowable under the relevant Supreme Court scale if the proceedings were in the Supreme Court. (7a) On receiving an application to the Tribunal under this section, the Registrar must immediately send copies of the application to the other parties to the proceeding and to the relevant compensating authority. (7b) Within 21 days of receiving a copy of an application under subsection (7a), the compensating authority must provide to the Tribunal any document or thing in the relevant compensating authority's possession or control relevant to the application. (7c) The Tribunal may, in acting under this section— (a) hear and determine an application concurrently with another proceeding under this Act; and (b) determine whether the worker has been incapacitated for work in consequence of a work injury if that question has not been previously determined (and in those circumstances the relevant compensating authority has the right to be heard on that question). (7d) The Tribunal, in making an order under subsection (5), is not limited to considering only employment of the type the worker nominated in the subsection (3) notice and may take into account any change in capacity for work after the making of the application to the Tribunal or any other evidence before the Tribunal. (8) Costs may only be awarded to cover— (a) the cost of representation by a legal practitioner or an officer or employee of an industrial association; and (b) costs of a kind authorised by the regulations that were reasonably incurred. (9) If the Tribunal is of the opinion that a party acted unreasonably, frivolously or vexatiously in bringing or in relation to the conduct of proceedings under subsection (5), the Tribunal may— (a) decline to make an award of costs in favour of the party and may (if it thinks fit) make an award of costs against the party; or (b) reduce the amount of the award of costs to which the party would otherwise have been entitled. (10) Subject to subsection (11), an award of costs to cover professional advice or assistance may, if the Tribunal considers appropriate, be made in favour of the person who provided the professional advice or assistance. (11) An award of costs to cover the cost of representation by an officer or employee of an industrial association are payable to the industrial association. (12) If— (a) the Tribunal orders an employer to provide employment to a worker under subsection (5); and (b) the employer fails to comply with that order; and (c) the worker applies to the Corporation for financial support under subsection (13), the Corporation must, subject to subsection (14), provide financial support to the worker under subsection (13). (13) The financial support will be in the form of weekly payments that represent the weekly amounts that the worker would be expected to receive from the employer if the employer complied with the order of the Tribunal. (14) The Corporation is not required to make a payment under subsection (13) in respect of a failure on the part of the employer after the end of the period of 104 weeks from the date on which the incapacity for work referred to in subsection (3) first occurred (the prescribed period) and any liability of the Corporation to provide financial support to the worker under subsection (13) ceases at the end of the prescribed period. (15) The Corporation may recover any amount paid to a worker under subsection (13), together with interest at the prescribed rate, as a debt from the employer in default. (16) Nothing in this section— (a) limits any other penalty or liability that may be imposed on the employer under this or any other Act or law on account of the employer's failure to comply with an order of the Tribunal; or (b) derogates from any obligation of the employer to pay wages to the worker under this or any other Act or law. (16a) A host employer must co-operate with a labour hire employer in respect of action taken by the labour hire employer to comply with its obligation under this section to provide suitable employment to a worker, to the extent that it is reasonably practicable to do so, by— (a) communicating with a labour hire employer about co-operation in the provision of any suitable employment requested by a worker under a subsection (3) notice; and (b) participating in discussions with the employer and the worker about the return to work planning, including in relation to the establishment of a recovery/return to work plan; and (c) providing the labour hire employer, the worker and other parties involved in the return to work process with access to the workplace, including for the performance of duties by the worker in their employment with the labour hire employer; and (d) complying with any other requirements prescribed by the regulations. (16b) Nothing in subsection (16a) requires a host employer to enter into an employment relationship with a worker. (16c) The duty to provide suitable employment under subsection (1) extends— (a) in the case of a pre-injury employer that is a member of a group of self-insured employers comprised of related bodies corporate—to each of the related bodies corporate in the group; and (b) in the case of a pre-injury employer that is an agency or instrumentality of the Crown that is taken under section 130 to be registered as a self-insured employer—to all such agencies or instrumentalities of the Crown. (16d) Despite subsection (3), if the pre-injury employer is a member of a group of self-insured employers comprised of related bodies corporate the subsection (3) notice may be given to the employer in the group nominated under section 129(12). host employer, in relation to a labour hire worker, means the person who obtained, at the time of the occurrence of the relevant work injury, the services of the worker as part of labour hire services (within the meaning of section 7 of the Labour Hire Licensing Act 2017); labour hire employer, in relation to a labour hire worker, means the employer who has supplied, at the time of the occurrence of the relevant work injury, the services of the worker to the host employer as part of labour hire services (within the meaning of section 7 of the Labour Hire Licensing Act 2017); labour hire worker has the same meaning as in the Labour Hire Licensing Act 2017; related bodies corporate—bodies corporate are related bodies corporate if they are related bodies corporate under section 50 of the Corporations Act 2001 of the Commonwealth; relevant compensating authority means the Corporation or a self-insured employer, depending on which entity has paid compensation under this Act, or is liable to pay compensation under this Act, in the particular case. 19—Payment of wages for alternative or modified duties If a worker who has been incapacitated for work in consequence of a work injury undertakes alternative or modified duties under employment or an arrangement that falls outside the worker's contract of service for the employment from which the injury arose, the employer must pay an appropriate wage or salary in respect of those duties. 19A—Jurisdiction to determine monetary claims (1) The Tribunal (constituted as the South Australian Employment Court) has jurisdiction to hear and determine monetary claims for wages or salary payable under section 19. (2) The Tribunal may only, in the exercise of jurisdiction under this section, make an order for costs where costs may be ordered in a monetary claim under the Fair Work Act 1994. (3) In determining an amount on a claim under this section, the Tribunal must take into account any weekly payments the worker was entitled to receive over the period in relation to which the claim relates. (4) A claim under this section must be made within 6 years after the sum claimed became payable. (5) Nothing in this section limits the jurisdiction of the Tribunal under the Fair Work Act 1994. 20—Additional requirement with respect to termination of employment (1) If a worker has suffered a work injury, the employer from whose employment the injury arose must not terminate the worker's employment without first giving the Corporation and the worker at least 28 days notice of the proposed termination. (2) However, notice of termination is not required under this section if— (a) the employment is properly terminated on the ground of serious and wilful misconduct; or (b) the worker is neither participating in a recovery/return to work plan, nor receiving compensation, for the work injury; or (c) the worker's rights to compensation for the injury have been exhausted or the time for making a claim for compensation has expired. (3) The burden of establishing that an employer terminated a worker's employment on the ground of serious and wilful misconduct lies on the employer.