Part 9Registration and funding

Part 9—Registration and funding Division 1—Registration of employers 128—Registration of employers (1) Subject to subsection (2), an employer must not employ a worker in employment to which this Act applies unless the employer is registered by the Corporation. Maximum penalty: $10 000 for each worker so employed. (2) An employer is not required to be registered if the employer is exempted by the regulations from the obligation to be registered. (3) No offence is committed by an employer against this section if the employer applies for registration within 14 days after the obligation to be registered arises. (4) It is a defence to a prosecution for an offence under subsection (1) in respect of the employment of a particular worker if the court is satisfied that, at the time of the alleged offence, the employer believed on reasonable grounds that the worker's employment was not connected with this State by virtue of the operation of section 10. (5) If the employer's belief on reasonable grounds was that under section 10 the worker's employment was connected with another State, subsection (4) does not apply unless at the time of the alleged offence the employer had workers compensation cover in respect of the worker under the law of that other State. (6) In this section— State includes a Territory; workers compensation cover means insurance or registration required under the law of a State in respect of liability for statutory workers compensation under that law. 129—Self-insured employers (1) Subject to this section, an employer or a group of employers may apply to the Corporation for registration as a self-insured employer or as a group of self‑insured employers. (2) An application may not be made under subsection (1) unless— (a) in the case of an application by an individual employer— (i) the employer is a body corporate; or (ii) the employer is an indemnified maritime employer; (b) in the case of an application by a group— (i) the members of the group are related bodies corporate or local government corporations; and (ii) if the members of the group are related bodies corporate—no related body corporate of any member of the group that employs a worker or workers in employment to which this Act applies is not a member of the group. (3) Where— (a) an application is made under subsection (1); and (b) the Corporation is satisfied— (i) that the employer or the employers constituting the group have reached a standard that, in the opinion of the Corporation, must be achieved before conferral of self-insured status can be considered; and (ii) that in all the circumstances it is appropriate to do so, the Corporation may register the employer or the group as a self-insured employer or a group of self‑insured employers. (4) Without limiting subsection (3), the Corporation may reject an application under subsection (2)(a) if the employer is a member of a group comprised of related bodies corporate or local government corporations. (5) A registration under this section— (a) is subject to— (i) a condition that the self‑insured employer 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)); and (ii) a condition that the self‑insured employer must not exercise any power or discretion delegated to the self‑insured employer under this Act unreasonably; and (iii) such other terms and conditions as the Corporation determines from time to time or as are prescribed by the regulations; and (b) if the self‑insured status was conferred on the ground that the employer is an indemnified maritime employer—is subject to a condition limiting the effect of the conferral to the workers, or a specified class of the workers, to whom the relevant indemnity relates; and (c) if self‑insured status was conferred on a group of related bodies corporate—is subject to the condition that there is at no time a related body corporate to any member of the group that employs a worker or workers in employment to which this Act applies that is not a member of the group; and (d) is subject to a condition that the self‑insured employer will comply with any code of conduct for self‑insured employers determined by the Corporation from time to time and published in the Gazette; and (e) takes effect on a date fixed by the Corporation; and (f) subject to this section— (i) has effect for an initial period (not exceeding 3 years) determined by the Corporation; and (ii) may, on further application to the Corporation, be renewed from time to time for a further period (not exceeding 5 years) determined by the Corporation at the time of the renewal. (6) The Corporation may, at any time, on the application of 2 or more self‑insured employers, amend the registration of each self‑insured employer so as to form a group on the ground that they are now related bodies corporate. (7) The Corporation may, at any time, on application by a self‑insured employer or a group of self‑insured employers, amend the registration of the group in order to— (a) add another body corporate to the group (on the ground that the body corporate is now a related body corporate); or (b) remove a body corporate from the group (on the ground that the body corporate is no longer a related body corporate); or (c) amalgamate the registration of 2 or more groups (on the ground that all the bodies corporate are now related bodies corporate); or (d) divide the registration of a group into 2 or more new groups (on the ground that the bodies corporate have separated into 2 or more groups of related bodies corporate). (8) For the purposes of subsection (2)(b) and (7), a foreign company that is a holding company cannot be a member of a group (and, to the extent that is relevant, will be disregarded when determining the bodies corporate that will be related bodies corporate for the purposes of the grouping provisions of this section (including, if the Corporation thinks fit, so as to exclude also any subsidiary of such a holding company)). (9) The Corporation may revoke the registration of a self‑insured employer or group of self‑insured employers, or reduce the period of registration, if the employer, or a member of the group, (as the case requires) breaches or fails to comply with this Act or a term or condition of registration. (10) The Corporation may revoke the registration of a self‑insured employer under an agreement between the Corporation and the employer (which may include terms or conditions that the employer must comply with before the revocation can take effect). (11) In deciding whether to grant, renew, revoke, or reduce the period of registration as a self-insured employer or group of employers under this section, the Corporation may have regard to such matters as it considers relevant and will have regard to the following: (a) the number of employees employed by the employer or group; (b) whether the employer or group is, and is likely to continue to be, able to meet its liabilities; (c) the resources that the employer or group has for the purpose of administering claims under this Act; (d) the incidence and severity of work injuries arising from employment by the employer or employers; (e) the effect, or likely effect, of the working conditions under which workers are employed by the employer, or any of the employers, on the health and safety of those workers; (f) the record of the employer or employers in relation to the rehabilitation of injured workers and achieving their recovery and return to work; (g) the record of the employer or employers in providing suitable employment to workers who suffer work injuries; (h) the views of any industrial association that has, in the opinion of the Corporation, a proper interest in the matter, but once an employer or group has been registered as self-insured, the Corporation must not, in deciding whether to renew the registration, consider the effect of the registration on the Compensation Fund. (12) If employers are registered as a group of self‑insured employers, 1 of those employers nominated in the application for registration will, for the purposes of this Act, be treated as the employer of all workers employed by the various members of the group. (12a) The Corporation must publish, on a website determined by the Minister, the name of the employer nominated in any application for registration referred to in subsection (12) and that employer's phone number and address. (13) The Corporation may, on application by a group of self‑insured employers, accept the nomination of another member of the group as the relevant employer under subsection (12). (14) Despite subsection (12), the members of the group are jointly and severally liable to satisfy the liabilities under this Act of the member referred to in subsection (12). (15) In this section— foreign company has the same meaning as it has under the Corporations Act 2001 of the Commonwealth; holding company has the same meaning as it has under the Corporations Act 2001 of the Commonwealth; indemnified maritime employer means an employer that has the benefit of an indemnity granted by a member of the International Group of Protection and Indemnity Associations; related bodies corporate means— (a) in the case of corporations—bodies corporate that are related bodies corporate under section 50 of the Corporations Act 2001 of the Commonwealth; (b) in the case of any other kind of bodies corporate—bodies corporate that are associated entities under section 50AAA of the Corporations Act 2001 of the Commonwealth. 130—Crown and certain agencies to be self-insured employers (1) Subject to subsection (2), the Crown and any agency or instrumentality of the Crown will be taken to be registered as self‑insured employers. (2) The Governor may, by proclamation, declare that an agency or instrumentality of the Crown is not to be regarded as a self‑insured employer, and in that event the agency or instrumentality will not be regarded as a self‑insured employer. (3) The Governor may, by further proclamation, vary or revoke a proclamation under subsection (2). agency or instrumentality of the Crown includes any body, or body of a specified class, prescribed by regulation for the purposes of this definition. (5) A regulation for the purposes of subsection (4) may, if the regulation so provides, take effect from a day antecedent to the day on which it is made. 131—Applications for registration (1) An application for registration as an employer, a self‑insured employer or a group of self‑insured employers— (a) must be made in the designated manner and the designated form; and (b) must be accompanied by the prescribed information; and (c) in the case of an application for registration of a group of self-insured employers must nominate a member of the group as the employer who is, for the purposes of this Act, to be treated as the employer of all workers employed by the various members of the group. (2) An application for registration as a self‑insured employer or group of self‑insured employers must be accompanied by a fee fixed in accordance with the regulations. 132—Changes in details for registration An employer must, in prescribed circumstances and within a period prescribed by the regulations, provide to the Corporation in a designated manner and form information relating to a change in any details or information relevant to— (a) the registration of the employer; or (b) the activities or circumstances of the employer. 133—Ministerial appeal on decisions relating to self-insured employers (1) If the Corporation— (a) refuses the registration of an employer or group of employers as a self‑insured employer or group of self‑insured employers; or (b) grants or renews registration as a self-insured employer or group of self‑insured employers for a period of less than 3 years; or (c) reduces the period of registration of an employer or group of employers as a self‑insured employer or group of self‑insured employers; or (d) cancels the registration of an employer or group of employers as a self‑insured employer or group of self‑insured employers, the employer or employers may appeal to the Minister against that decision. (2) The appeal must be commenced within 1 month after the employer or employers receive notice of the Corporation's decision unless the Minister allows an extension of time for the appeal. (3) If an employer or a group of employers appeals to the Minister against a decision of the Corporation to refuse to renew, or to cancel, the registration of the employer or employers as a self‑insured employer or group of self‑insured employers, the Corporation may extend or renew the registration of the employer or employers for a period of up to 3 months (pending resolution of the appeal). (4) The Minister may (but is not obliged to) permit an appellant to appear personally or by representative before the Minister on an appeal. (5) The Minister has an absolute discretion to decide an appeal under this section as the Minister thinks appropriate. (6) If the Minister decides in favour of the appellant, the Minister must furnish the Corporation with a statement of the reasons for the decision. Division 2—Delegation to self-insured employers 134—Delegation to self-insured employers (1) Subject to this Act, the following powers and discretions of the Corporation, insofar as they are exercisable in relation to workers of a self‑insured employer, are delegated to the self‑insured employer: (a) the powers and discretions under the following sections: section 13 section 21 section 24 section 25 section 28(4) section 31 section 32 section 33 (but not section 33(12) or (15)) section 39 section 40 section 45 section 46 section 47 section 48 section 50(7) section 51 section 53 section 54 section 55(6) section 56 section 56A section 58 section 59 section 60 section 61 section 62 section 63 section 66 section 193 section 201; (b) any other prescribed powers and discretions. (2) Delegated powers and discretions referred to in subsection (1) will not be exercised by the Corporation in relation to the workers of the self‑insured employer. (3) Subject to this section, the Corporation must not overrule or interfere with a decision of a self‑insured employer made in the exercise of delegated powers or discretions. (4) A decision of a self-insured employer made pursuant to a power or discretion delegated under subsection (1) will have the same force and effect as a decision of the Corporation and will be subject to review and appeal in the same way as a decision of the Corporation. (5) A reference to the Corporation in the provisions of this Act referred to in subsection (1) will, in relation to any matter over which a self-insured employer has delegated powers or discretions, be construed as a reference to that self-insured employer. (6) If the Corporation would, but for this section, be required under a provision of this Act referred to in subsection (1) to take any action or do any thing in relation to a worker of a self‑insured employer— (a) responsibility for taking the action or doing the thing rests with the self‑insured employer; and (b) any cost incurred in connection with taking the action or doing the thing is to be borne by the self‑insured employer. (7) If a self‑insured employer exercises a power or discretion delegated under subsection (1) unreasonably, the Corporation may withdraw (in whole or in part) the delegation effected by subsection (1). (8) If an employer ceases to be registered as a self‑insured employer under this Act, the delegation to the employer under this section will, if the Corporation so determines, continue to such extent as the Corporation thinks fit in relation to injuries that occurred before that cessation (and any act or omission of the employer within the scope of the delegation will be taken for the purposes of this Act to be the act or omission of a self‑insured employer). Division 3—Compensation Fund 135—Compensation Fund (1) The Compensation Fund continues in existence and will continue to be maintained by the Corporation. (2) The Compensation Fund will consist of— (a) amounts received from the imposition of premiums, supplementary payments or fees under this Part; and (b) any income and accretions produced by the investment of money from the Fund; and (c) any money advanced to the Corporation for the purposes of the Fund; and (d) other money received by the Corporation under this Act or in the administration of this Act; and (e) to the extent provided by regulation—money received by the Corporation under, or in the administration of, another Act. (3) The Compensation Fund will be applied towards— (a) the payments of compensation that the Corporation is liable to make under this Act; and (b) the payments of damages for which the Corporation is liable to make on account of indemnifying employers as their insurer under this Act (whether under Part 5 or otherwise); and (c) any payment that the Corporation is required to make to a self‑insured employer under section 64; and (d) the costs incurred by the Corporation in performing its functions or discharging any liability under this Act; and (e) any costs incurred by the Minister or the Crown if a decision or process of the Minister under section 133 becomes the subject of judicial proceedings; and (f) a contribution towards the system of dispute resolution under this Act (including the costs associated with independent medical advisers) determined by the Minister from time to time after consultation with the Treasurer and the Corporation; and (g) the costs incurred by the Ombudsman in carrying out the Ombudsman's functions under this Act; and (h) a contribution towards advocacy services for the benefit of injured workers determined by the Minister from time to time after consultation with the Corporation; and (i) any costs to be paid out of the Fund under another provision of this Act (including any amounts to be paid out of the Return to Work Facilitation Fund under Part 10); and (j) to the extent provided by regulation—the costs incurred by the Corporation in carrying out its functions under another Act; and (k) any payment that the Corporation is required to make under section 27A of the Return to Work Corporation of South Australia Act 1994; and (l) any payment that the Corporation is required to make under the Work Health and Safety Act 2012. (4) The Corporation may invest money that is not immediately required for the purposes of the Compensation Fund as the Corporation thinks fit. (5) Subject to subsection (6), in deciding how to invest funds that are available for investment, the Corporation must endeavour to achieve the highest possible rates of return. (6) The Corporation is not required to comply with subsection (5) if the board unanimously decides, in relation to certain funds, to invest those funds at a lesser rate of return but so as to promote the economy of the State. Division 4—Premiums 136—Interpretation class of industry includes a subclass; remuneration includes payments made to or for the benefit of a worker which by the determination of the Corporation constitute remuneration but does not include payments determined by the Corporation not to constitute remuneration. 137—Average premium rate (1) Subject to subsection (2), the Corporation must, in setting premiums under this Division in relation to a financial year, seek to achieve an average premium rate that does not exceed 2%. (2) If the Corporation determines that it will be unable to achieve the rate referred to in subsection (1) in relation to a particular financial year, the Corporation must furnish a report to the Minister that— (a) sets out the reasons for not being able to achieve that rate; and (b) provides information about— (i) the rate that is to apply in relation to that financial year; and (ii) the Corporation's preliminary assessment of its ability to achieve the rate referred to in subsection (1) in the next financial year. (3) The Minister must cause a copy of a report under subsection (2) to be laid before both Houses of Parliament within 6 sitting days after receiving the report. Subdivision 2—Premiums (terms and conditions) 138—Premiums (terms and conditions) (1) The Corporation may, from time to time, after consultation with the Minister, publish in the Gazette a set of terms and conditions that will apply in relation to the calculation, imposition and payment of premiums for the purposes of this Act (and these terms and conditions will be referred to as RTWSA premium provisions). (2) The Corporation must ensure that RTWSA premium provisions operate on the basis that the costs of all claims made by an employer's workers that are relevant to the RTWSA premium provisions in force at the time (including claims in respect of damages but not including claims in respect of unrepresentative injuries) are taken into account in relation to the calculation of premiums. (3) RTWSA premium provisions may— (a) apply differently according to— (i) categories of employers; and (ii) different factors of a specified kind; and (b) authorise any matter to be determined, applied or regulated by a specified person or body. (4) Without limiting any other provision, RTWSA premium provisions may specify various principles, weights, adjustments, caps, assumptions or exclusions that will apply in relation to the constitution or determination of remuneration or the costs of claims. (5) RTWSA premium provisions will not apply to— (a) a self‑insured employer; or (b) an employer who is exempt from the requirement to be registered under Division 1. Subdivision 3—Premiums (general principles) 139—Liability to pay premiums (1) Subject to this Part, an employer will be liable to pay, in relation to each period specified by the RTWSA premium provisions or a RTWSA premium order that applies in relation to the employer, a premium or premiums in accordance with the requirements of this Act. (2) An employer— (a) who is a self‑insured employer; or (b) who is exempt from the requirement to be registered under Division 1, is not required to pay a premium under this Division. (3) A person who ceases to be an employer may be entitled to a partial refund of any premium that has been paid calculated in accordance with any relevant provision of the RTWSA premium provisions or a RTWSA premium order that applies in relation to the employer. (4) An employer who is in breach of the requirement to be registered under this Act will, in addition to any other penalty, be liable to a fine fixed by the Corporation not exceeding 3 times the amount of premium that would have been payable under this Act had the employer been registered as required. (5) The Corporation may for any proper reason remit a fine imposed under subsection (4) wholly or in part. (6) The imposition of a fine under subsection (4) does not satisfy or affect any liability or requirement to pay any premium under this Act. (7) Nothing in this section affects the adjustment of a premium or the imposition of a fine under another provision of this Act. 140—Employer categories (1) Subject to subsection (2), the Corporation may from time to time, by notice in the Gazette, divide employers into various categories. (2) Despite a notice applying under subsection (1), the Corporation may, if it considers it appropriate to do so and after applying criteria or factors published as part of the RTWSA premium provisions, assign a particular employer to a category that is different to the category that would otherwise apply under subsection (1). 141—Classes of industry (1) The Corporation may, for the purposes of the calculation of premiums, divide the industries carried on in the State into various classes. (2) The Corporation may determine any question as to the class or classes of industry in which an employer employs workers. (3) In determining the class or classes of industry in which an employer employs workers the following provisions will be applied: (a) if the employer employs a worker in 2 or more classes of industry— (i) the worker will, subject to any determination by the Corporation to the contrary, be treated as if solely employed in the class of industry in which he or she is predominantly employed; and (ii) if it is not possible to determine which is the predominant class, the worker will be treated as if solely employed in a class of industry determined by the Corporation; (b) if the employer employs workers in different classes of industry all workers employed by the employer will, if the Corporation so determines, be treated as engaged in the predominant class of industry; (c) if the employer employs workers at 2 or more workplaces, all workers employed at a particular workplace will, if the Corporation so determines, be treated as engaged in the predominant class of industry conducted at that workplace; (d) if the employer employs workers in different classes of industry the Corporation may for the purposes of industry classification at a workplace treat the workers as engaged in 2 or more classes of industry; (e) if the employer employs workers at a workplace for the purpose of supporting a predominant class of industry carried on at 1 or more other workplaces at which the employer employs workers, that predominant class of industry will, if the Corporation so determines, apply in relation to the first‑mentioned workplace; (f) in determining a predominant class of industry (if relevant), the Corporation will have regard to— (i) the importance within the employer's total operations of each class of industry in which workers are employed; and (ii) any other factor determined to be relevant by the Corporation. (4) The Corporation may, as it thinks fit, review and revise a determination previously made under or for the purposes of this section. (5) A revision may be made under subsection (4) at any time (including in respect of a period that is underway). 142—Industry rates and base premiums (1) The Corporation must, in relation to each class of industry, fix a rate (expressed as a percentage and to be called the industry premium rate) that is to be applied for the purposes of determining base premiums under subsection (4). (2) The rates under subsection (1)— (a) must be fixed by the Corporation by notice in the Gazette; and (b) may be varied by the Corporation by subsequent notice in the Gazette. (3) In fixing the percentage applicable to a particular class of industry the Corporation must apply any criteria or principles specified by the regulations. (4) A base premium under this Act, in its application to a particular industry, is determined as follows: