Sch 9Repeal and transitional provisions

Schedule 9—Repeal and transitional provisions 1—Amendment provisions In this Schedule, a provision under a heading referring to the amendment of a specified Act amends the Act so specified. Part 2—Repeal 2—Repeal The Workers Rehabilitation and Compensation Act 1986 is repealed. Part 10—Transitional provisions 27—Interpretation (1) In this Part— designated day means a day appointed by proclamation as the designated day for the purposes of the provision in which the term is used; existing injury—see clause 29(1)(a); new injury—see clause 29(1)(b); SAET means the South Australian Employment Tribunal established under the South Australian Employment Tribunal Act 2014; WCT means the Workers Compensation Tribunal under the repealed Act. (2) A reference in this Part to the Corporation in a clause prescribed by regulations made for the purposes of this subclause will be taken to include a reference to a self‑insured employer. Division 2—CPI adjustment 28—CPI adjustment (1) If a sum of money fixed by this Act at the time of enactment is followed by the word "(indexed)", that signifies— (a) that the amount is to be adjusted as at 1 January 2015 so that the adjusted sum bears to the amount fixed by Parliament the same proportion as the Consumer Price Index for the September quarter 2014 bears to the Consumer Price Index for the September quarter 2013; and (b) that the amount is to be adjusted as at 1 January in each subsequent year so that the adjusted sum bears to the amount fixed by the Parliament the same proportion as the Consumer Price Index for the September quarter of the immediately preceding financial year bears to the Consumer Price Index for the September quarter 2013. (2) An amount determined under subclause (1) will be rounded up to the nearest dollar. (3) Subclauses (1) and (2) apply to a sum fixed by a provision that has not come into operation on 1 January 2015 so that when the provision comes into operation then the sum as adjusted will apply. Division 3—Application of Act 29—General provision (1) Subject to the other provisions of this Part, this Act applies to and in relation to— (a) an injury that is attributable to a trauma that occurred before the designated day and that is a compensable injury under the repealed Act (an existing injury); and (b) an injury that is attributable to a trauma that occurred on or after the designated day (a new injury). (2) For the purposes of subclause (1), an injury that is partially attributable to a trauma that occurred before the designated day and partially attributable to a trauma that occurred on or after the designated day will be taken to be a new injury within the ambit of subclause (1)(b). (3) Subject to the other provisions of this Part— (a) a reference in this Act to a work injury will be taken to include a reference to a compensable injury under the repealed Act; and (b) this Act will apply to a compensable injury under the repealed Act as if this Act had been in operation before the injury occurred. (4) Nothing in this Part is intended to give rise to an entitlement under this Act and the repealed Act so as to give rise to double entitlements. 30—Connection with employment (1) The question about whether an existing injury is compensable will be determined under sections 30 and 30A of the repealed Act (as in existence immediately before the designated day). (2) However, section 7(3) of this Act extends to an injury (the designated injury) that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury where— (a) the prior injury is wholly or partially attributable to a trauma that occurred before the designated day; and (b) the designated injury is wholly or partially attributable to a trauma that occurred on or after the designated day. 31—Notice of injury A notice of an injury given by a worker under section 51 of the repealed Act will be taken to be a notice given under section 16 of this Act. 32—Employer's duty to provide work Section 18(3) of this Act extends to a worker who has been incapacitated for work before the designated day. 33—Recovery and return to work (1) A rehabilitation program in force under the repealed Act immediately before the designated day will continue for the purposes of this Act in connection with providing recovery/return to work services until reviewed or discontinued by the Corporation. (2) A rehabilitation and return to work plan in force under the repealed Act immediately before the designated day will, on the designated day, be taken to be a recovery/return to work plan under this Act. (3) A person who, immediately before the designated day, held an appointment as a co‑ordinator under section 28D of the repealed Act will, on the designated day, be taken to be an accredited return to work co‑ordinator under section 26 of this Act. (4) A reference in any instrument or agreement to a rehabilitation and return to work co‑ordinator will, on the designated day, be taken to be a reference to a return to work co‑ordinator under section 26 of this Act (unless the context otherwise requires). 34—Seriously injured workers (1) A person whose degree of whole person impairment has been assessed under Part 4 Division 5 of the repealed Act to be 30% or more will be taken to be a seriously injured worker under this Act. (2) In addition, the Corporation may determine that a worker who has an existing injury will be taken to be a seriously injured worker for the purposes of this Act. (3) A determination under subclause (2)— (a) may be made on any basis determined by the Corporation (including in a case where the worker would not qualify to be a seriously injured worker under section 21 of this Act); and (b) will have effect according to its terms. (4) A decision to make, or not to make, a determination under subclause (2) is not reviewable under this Act. 35—Medical expenses (1) In relation to the application of subsection (20) of section 33 of this Act to an existing injury, a period of 12 months referred to in that subsection must be a period of 12 months— (a) that runs from the designated day; or (b) that commences on or after the designated day, (and so, in the case of an existing injury, a reference in subsection (21) of section 33 of this Act to the period referred to in subsection (20) will be taken to be a reference to a period applying under paragraph (a) or (b) of this clause). (2) Section 33(21)(b)(ii) of this Act does not apply in relation to an existing injury. 36—Provisional liability for medical expenses A right of set off under section 32A(8) of the repealed Act may be exercised in relation to a right to the payment of compensation under this Act (including in relation to a new injury). 37—Weekly payments for workers (1) In this clause— (a) the first transitional period is the period of 52 weeks from the designated day; and (b) the second transitional period is the period of 52 weeks beginning immediately after the end of the initial transitional period; and (c) a reference to an entitlement period is a reference to an entitlement period under Part 4 Division 4 of the repealed Act; and (d) a Category A worker is, in respect of an existing injury, a worker who, immediately before the designated day, was still entitled to receive a weekly payment during the first entitlement period in respect of any incapacity for work in respect of that injury; and (e) a Category B worker is, in respect of an existing injury, a worker who, immediately before the designated day, was still entitled to receive a weekly payment during the second entitlement period in respect of any incapacity for work in respect of that injury; and (f) a Category C worker is, in respect of an existing injury, a worker who, immediately before the designated day, was still entitled to receive a weekly payment during a period occurring after the end of the second entitlement period in respect of any incapacity for work in respect of that injury. (2) Subject to this Part, a worker who, in respect of an existing injury, is incapacitated for work at any time during the period beginning on the designated day and ending 104 weeks from the designated day, will be entitled to weekly payments in respect of that incapacity in accordance with the following principles: (a) if any incapacity for work occurs within the first transitional period— (i) in the case of a Category A worker—the worker is entitled to weekly payments under section 39(1)(a)(i) or (ii) of this Act as if references to the first designated period in section 39(1)(a) were references to the first transitional period; and (ii) in the case of a Category B worker—the worker is entitled to weekly payments under section 39(1)(b)(i) or (ii) as if references to the second designated period in section 39(1)(b) were references to the first transitional period and as if references to "80%" in section 39(1)(b)(i) or (ii) were substituted with "90%"; and (iii) in the case of a Category C worker—the worker is entitled to weekly payments under section 39(1)(b)(i) or (ii) of this Act as if references to the second designated period in section 39(1)(b) were references to the first transitional period; (b) if any incapacity for work occurs within the second transitional period—the worker is entitled to weekly payments under section 39(1)(b)(i) or (ii) of this Act as if references to the second designated period in section 39(1)(b) were references to the second transitional period. (3) Subject to subclauses (4) and (5), a worker has no entitlement to weekly payments under this Act or the repealed Act in respect of an existing injury after the end of the second transitional period (and this subclause will apply instead of section 39(3) of this Act in relation to existing injuries). (4) An entitlement under this clause has effect subject to any other provision of this Act (including any provision that applies under or subject to this Part) that provides for the suspension, reduction or discontinuance of weekly payments. (5) Subclause (3) does not apply in relation to a seriously injured worker. (6) To avoid doubt, a person who, before the designated day, has ceased to have an entitlement to weekly payments on account of a discontinuance under section 36 of the repealed Act is not entitled to weekly payments under this clause (or under the repealed Act). 38—Federal minimum wage safety net Section 42 of this Act extends to the amount of compensation payable under Part 4 Division 4 Subdivision 2 of this Act on account of the operation of this Part. 39—Management of transitional arrangements for income support (1) The Corporation may, in connection with the operation of clauses 37 and 38 (and the other relevant provisions of this Part), establish a scheme to provide for the transition from making weekly payments under the repealed Act to making weekly payments in accordance with those clauses and this Act more generally. (2) To the extent that the Corporation, in establishing and implementing the scheme referred to in subclause (1), does not begin to make weekly payments to a worker at the rates that apply under this Act rather than the repealed Act on the designated day, the worker will, when weekly payments commence in accordance with the provisions of this Part, be entitled to— (a) back payments to the extent necessary to ensure that the worker receives (in due course) his or her full entitlement (as applying from the designated day); and (b) the payment of interest (at the prescribed rate) calculated and applied (from the designated day) in accordance with the regulations. 40—Retirement age To avoid doubt, section 44 of this Act extends to weekly payments being paid to a worker under this Part. 41—Discontinuance of weekly payments (1) Subsection (9) of section 48 of this Act extends to and in relation to a notice of a decision of the Corporation under section 36 of the repealed Act unless the worker has lodged a notice of dispute under section 36 of the repealed Act before the designated day (but subject to the operation of subclause (2)(b)). (2) If a worker has lodged a notice of dispute under section 36 of the repealed Act before the designated day— (a) if the worker has made an application to the WorkCover Ombudsman under subsection (15) of section 36 of the repealed Act and the WorkCover Ombudsman has made a decision in relation to the application before the designated day—subsections (15), (16) and (17) of section 36 of the repealed Act, and all other relevant provisions of the repealed Act, will continue to apply to and in relation to the matter until the dispute is finally resolved as if the repealed Act had not been repealed by this Act; and (b) in any other case—any application to the WorkCover Ombudsman under subsection (15) of section 36 of the repealed Act (if made) will lapse, but the worker may make an election under subsection (9) of section 48 of this Act. (3) In the case of a worker within the ambit of subclause (2)(b)— (a) the election must be made within 28 days after the designated day; and (b) if the worker makes an election— (i) if the dispute has already come before a conciliator—the Tribunal may act (if it thinks fit) under subsection (9)(b) of section 48 of this Act so as to provide for the reinstatement of weekly payments; and (ii) the liability of the Corporation to make a payment for any weekly payments that have not been made will be limited to a period commencing on the date of the election. (4) Subclause (3) operates subject to section 48(10) of this Act. 42—Redemptions (1) Nothing in this Part affects the application of section 42 of the repealed Act with respect to negotiations, and any agreement, for a redemption under the repealed Act commenced or entered into in accordance with that section before the designated day. (2) Except as provided by subclause (1) (and to avoid doubt), section 42 of the repealed Act will not apply to or in relation to a liability under the repealed Act with respect to an existing injury. 43—Loss of future earning capacity To avoid doubt, Part 4 Division 6 of this Act does not apply to or in relation to an existing injury. 44—Permanent impairment assessment A person whose entitlement for non-economic loss has been determined under Part 4 Division 5 of the repealed Act in respect of an existing injury is not entitled to an assessment under Part 2 Division 5 of this Act in relation to the same injury (or any other injury arising from the same trauma). 45—Payments on death—lump sums (1) The Corporation may, in relation to the death of a worker occurring on or after 1 July 2008 and before the designated day, in its absolute discretion, on the application of a person who was the spouse or domestic partner of the worker at the time of death, make an ex gratia payment (of an amount determined by the Corporation) after taking into account the amount (or additional amount) that would have been payable under section 61 of this Act had this Act been in operation before that trauma. (2) The Corporation may make a payment under subclause (1) even if an amount has been paid under section 45A of the repealed Act in relation to the death of the worker (including an amount equal to the prescribed sum under that section). (3) The Corporation may, in relation to the death of a worker that is subject to a claim for compensation under section 45A of the repealed Act that has not been determined before the designated day (including by the resolution of any dispute by proceedings under the repealed Act), deal with the claim in all respects under section 61 of this Act. (4) A decision of the Corporation not to make a payment under subclause (1) (or the amount of any such payment) is not reviewable under this Act (or under the repealed Act). 46—Incidence of liability Section 64(3) and (4) of this Act extends to outstanding payments of compensation under the repealed Act. 47—Payments by employers (1) The Corporation may, if it thinks fit, on the application of an employer who has paid compensation by way of income maintenance under the repealed Act, being compensation that would otherwise have been payable by the Corporation, make a payment that would have been payable under subsection (17) of section 64 of this Act had subsections (16) and (17) of that section been in operation at the time of the payment by the employer. (2) An application under subclause (1) must be made within 3 months after the designated day. 48—Provisional payments A right of set off under section 50H of the repealed Act may be exercised in relation to a right to the payment of compensation under this Act (including in relation to a new injury). Division 4—Common law 49—Common law Part 5 of this Act does not apply to or in relation to an existing injury or the death of a worker resulting from an existing injury (and section 54(1) of the repealed Act will continue to apply in respect of such an injury or death). Division 5—Dispute resolution 50—Existing proceedings etc (1) Subject to this Part, an application or other proceedings commenced before WCT under the repealed Act before the designated day may be continued and completed (and any appeals initiated or completed) under the repealed Act (and, if relevant, after applying any provision of this Part that is relevant to the proceedings). (2) A right to make an application or to bring proceedings before WCT under the repealed Act in existence before the designated day and not exercised before that day will be exercised as if Part 6 of this Act were in operation before that right arose so that the relevant proceedings will be commenced before SAET rather than WCT. (3) Without limiting any other provision— (a) the regulations may make provision for or with respect to the interaction between this Part and the repealed Act in order to ensure that SAET and WCT can operate under both sets of provisions (including, if necessary, by modifying any provision of the repealed Act or section 7 of this Act so that SAET can exercise the jurisdiction conferred by subclause (2)); and (b) the President of SAET may take other steps to ensure the smoothest possible transition from 1 jurisdiction to the other in connection with the operation of this clause (including by giving directions as to any procedural matter which will then have effect according to their terms). 51—Adoption of WCT decisions SAET may— (a) draw any conclusions of fact from evidence that has been before WCT; or (b) adopt any findings or determinations of WCT; or (c) adopt any decision, direction or order of WCT; or (d) set aside any decision, direction or order of WCT, that may be relevant to proceedings before SAET. 52—Dissolution of WCT (1) The Governor may, when he or she thinks that it is appropriate to do so, by proclamation, dissolve WCT. (2) When a proclamation is made under subclause (1)— (a) subject to subclause (3), any member of WCT (being either a presidential member or a conciliation officer) holding office under the repealed Act at the time of the making of the proclamation will cease to hold that office and any contract, agreement or arrangement relating to that office held by the member is terminated by force of this paragraph at the same time (and no right of action will arise against the Minister or the State on account of that termination); and (b) any proceedings before the WCT will be dealt with in accordance with provisions made by the regulations. (3) A member of WCT who is a Judge of the Industrial Relations Court of South Australia will continue as a member of SAET under the provisions of the South Australian Employment Tribunal Act 2014. Division 6—Registration and funding 53—Continuation of registration (1) An employer registered under the repealed Act immediately before the designated day will be taken to be registered under this Act (and, in the case of a self‑insured employer under the repealed Act the employer will continue as a self‑insured employer under this Act). (2) A registration under this Act under subclause (1) is subject to any conditions specified by this Act and is subject to the other provisions of this Act in all respects. 54—Premiums and payments (1) Section 137 of this Act does not apply in relation to the 2015/2016 or 2016/2017 financial years. (2) A RTWSA premium order under this Act may take into account the claims experience of any employer under the repealed Act. (3) A hindsight premium under the repealed Act is payable as if the relevant period applied under this Act (and will be payable by a date specified by the Corporation). (4) Unless otherwise determined by the Corporation, a group constituted under section 72A of the repealed Act will continue as a group under section 145 of this Act. (5) In acting under section 147 of this Act, the Corporation may have regard to matters that arose during the time that the repealed Act was in operation. (6) Any right of recovery, fine, penalty or other step that may be exercised, imposed, taken or enforced under Part 5 of the repealed Act in relation to any assessment, default or failure may, on and from the designated day, be exercised, imposed, taken or enforced under Part 9 of this Act. (7) Without limiting subclause (6), the Corporation may exercise any power or do any thing in relation to a matter under Part 5 of the repealed Act as if this Act had been in operation at the time that the matter under Part 5 of the repealed Act arose. 55—Scheme reviews (1) A reference in Part 10 of this Act to a financial year is a reference to a financial year commencing on or after the designated day. (2) In addition, the Minister cannot initiate a review under section 170 of this Act until after the expiration of 3 financial years from the designated day. Division 7—Medical Panels 56—Medical Panels (1) If a Medical Panel is, immediately before the designated day, still considering a medical question on a reference under Part 6C of the repealed Act— (a) the Medical Panel must give its opinion as quickly as is reasonably practicable after the designated day; and (b) in any event the reference will, subject to subclause (2), be brought to an end, by operation of this clause, 60 days after the designated day (even if the Medical Panel has not given its opinion on the relevant medical question by then and even if a longer period would otherwise apply due to an extension of time under section 98H(1) of the repealed Act). (2) WCT may grant an extension of the period that applies under subclause (1)(b). (3) WCT may grant an extension of time under subclause (2) on such conditions as it thinks fit. (4) The costs of Medical Panels will be payable out of the Compensation Fund until the Medical Panels cease operations in all respects. Division 8—WorkCover Ombudsman 57—WorkCover Ombudsman The person holding office as the WorkCover Ombudsman immediately before the designated day will, on the designated day, cease to hold office and any contract, agreement or arrangement relating to the office is terminated by force of this clause at the same time (and no right of action will arise against the Minister or the State on account of that termination). Division 9—1971/1986 Acts 58—Interpretation appointed day means the day on which the 1971 Act was repealed by the Workers Rehabilitation and Compensation Act 1986; compensating authority means the Corporation or a self‑insured employer;