Return to Work (Transitional Arrangements) (Dissolution of Workers Compensation Tribunal) Regulations 2016

Several key concepts recur throughout the regulations. First, the WCT or Workers Compensation Tribunal was the specialist tribunal established under the Workers Rehabilitation and Compensation Act 1986. It dealt with disputes under that Act and had various configurations: a conciliation officer, a single presidential member, and a Full Bench. The SAET, or South Australian Employment Tribunal, is the tribunal established under the South Australian Employment Tribunal Act 2014, which took over a broader jurisdiction including workers compensation matters after the enactment of the Return to Work Act 2014. The relevant day is defined in regulation 3 as the day the regulations come into operation, which is 5 March 2016 according to the legislative history. That is the cut-off date: before that day the WCT existed; on and from that day SAET assumes the WCT’s functions for transitional matters.

The repealed Act is the Workers Rehabilitation and Compensation Act 1986, which governed workers compensation in South Australia before the Return to Work Act 2014. The Act (capitalised) means the Return to Work Act 2014. The regulations constantly cross-refer to specific provisions of the repealed Act, often with date qualifications such as “as in force immediately before 1 July 2012” or “as in force immediately before 1 July 2015”. These are not drafting errors. The 1 July 2012 date appears in subparagraph (e)(i) for section 54 recovery actions, preserving the pre-2012 version of that provision. The 1 July 2015 date appears in subparagraphs (c), (f), and (g) for section 42 conciliation procedures, preserving the pre-July 2015 version of that section. This means that even though the repealed Act was progressively amended, the transitional scheme picks specific earlier versions to apply to certain transferred matters.

Other important concepts include: a decision, direction or order of the WCT - these continue in force as though made by SAET (subparagraph (a)). A right of review against a decision of a WCT conciliation officer under section 95A(7) of the repealed Act is treated as a right of review under Part 5 of the South Australian Employment Tribunal Act 2014 against a decision of a SAET Commissioner (subparagraph (b)(i)). A right of appeal under section 86 of the repealed Act against a decision of a single presidential member is treated as a right of appeal under Part 5 of the SAET Act against a decision of a Presidential member (subparagraph (b)(ii)). A right to make an application to WCT for a reference to a conciliation conference under section 42 of the repealed Act, existing by virtue of Schedule 9 clause 42 of the RTW Act and not exercised before the relevant day, may be exercised as an application to SAET for a referral to a compulsory conciliation conference under the SAET Act, with section 42 of the repealed Act as in force before 1 July 2015 applying (subparagraph (c)). Proceedings before WCT are transferred to SAET (subparagraphs (e), (f), (g)). And costs proceedings in respect of completed WCT matters may be commenced in SAET, with Parts 6A and 6B of the repealed Act applying (subparagraph (h)). Finally, SAET has general transitional powers to receive evidence, adopt findings, and make decisions or orders (subparagraph (i)).

The regulations directly affect anyone who had a pending proceeding or an unexercised right of review, appeal, or application before the Workers Compensation Tribunal as at 5 March 2016. This includes workers who had lodged claims for compensation under the repealed Act, their employers, and the insurers or self-insured employers who were parties to those disputes. Legal practitioners representing these parties must know into which SAET stream their matter falls: whether it becomes a review before a Commissioner, an appeal before a Presidential member, a compulsory conciliation conference, or a proceeding that continues as if commenced in SAET. The regulations also affect judicial officers and tribunal members. WCT conciliation officers and presidential members are not directly mentioned, but their prior decisions, orders, and findings are given effect through SAET’s adoption powers. The President of SAET is given a specific role: under subparagraphs (e), (f), and (g), they may give directions as to how transferred proceedings are to be conducted.

Insurers and self-insured employers who had outstanding costs determinations from completed WCT proceedings need to know that those costs proceedings can still be commenced in SAET under subparagraph (h). The Supreme Court of South Australia is also affected: subparagraph (d) explicitly preserves the right of appeal to the Supreme Court under section 86A of the repealed Act against a decision of the WCT Full Bench, but only where the Full Bench proceedings were completed before the relevant day. Appeals from decisions made after the relevant day or from SAET will proceed under different provisions.

The South Australian Employment Tribunal itself is the primary transferee institution. Its Commissioners and Presidential members must apply the version of the repealed Act specified in each subparagraph, not necessarily the current law. For example, a conciliation conference transferred under subparagraph (c) or (f) must be conducted under section 42 of the repealed Act as in force immediately before 1 July 2015, not under the SAET Act’s ordinary conciliation provisions. This imposes a unique dual-regime burden on SAET members: they must be familiar with both the current SAET Act and the historical versions of the repealed Act that are preserved.

Finally, any party who had a section 54 action for recovery of compensation that was pending before WCT before the relevant day is affected by subparagraph (e)(i). That action continues before SAET, but under section 54 of the repealed Act as in force immediately before 1 July 2012. That particular version may have different limitation periods, evidentiary rules, or heads of damage compared to later versions. Practitioners must locate that historical text.

The regulations create a network of deemed rights and obligations, all pivoting on the relevant day of 5 March 2016. The primary duty is on SAET to receive and handle the transferred matters. Subparagraph (i) gives SAET broad powers to promote a smooth transition: it may receive in evidence any transcript of WCT proceedings and draw conclusions of fact from it; it may adopt any findings or determinations of the WCT that are relevant to proceedings before it; it may adopt or make any decision, direction, or order in relation to proceedings that were before WCT before the relevant day, including making a decision in proceedings that were fully heard before that day; and it may take other steps to ensure the smoothest possible transition, including giving procedural directions that have effect according to their terms. This is a very wide discretionary power to avoid procedural wrangling over the status of evidence or partial determinations made by the now-dissolved tribunal.

For parties, the key right is continuity: a decision, direction, or order of the WCT in force immediately before the relevant day is taken to be a decision, direction, or order of SAET (subparagraph (a)). This means no automatic vacation of prior rulings. A party who had a right to seek review of a WCT conciliation officer’s decision (under section 95A(7) of the repealed Act) but had not yet exercised it before the relevant day can now treat that right as a right of review against a decision of a SAET Commissioner under Part 5 of the SAET Act (subparagraph (b)(i)). Similarly, an unexercised right of appeal under section 86 of the repealed Act against a single presidential member decision becomes a right of appeal under Part 5 of the SAET Act against a decision of a SAET Presidential member (subparagraph (b)(ii)). The terminology shifts: “appeal” under the old Act is matched to “appeal” under the SAET Act; “review” under the old Act is matched to “review” under the SAET Act.

A right to apply for a reference to a conciliation conference under section 42 of the repealed Act, if it existed by virtue of Schedule 9 clause 42 of the RTW Act and was not exercised before the relevant day, may be exercised as a right to apply to SAET for a referral to a compulsory conciliation conference under the SAET Act (subparagraph (c)). However, the substantive law governing that conference remains section 42 of the repealed Act as in force immediately before 1 July 2015, and references to “Tribunal” and “conciliator” are replaced by “SAET” and “Commissioner”. Similarly, any proceedings before WCT under section 42(5) (a conciliation reference from a presidential member back to conciliation) are transferred to SAET and proceed as a compulsory conciliation conference under the SAET Act, with the same preservation of the pre-July 2015 version of section 42 (subparagraph (f)).

Proceedings under section 42(2)(e)(iii) of the repealed Act (applications for determination by a presidential member) are transferred to SAET constituted of a Presidential member, and unexercised rights to make such applications may be exercised before SAET (subparagraph (g)). Again the pre-July 2015 version of section 42 applies.

Crucially, subparagraph (d) preserves the right of appeal to the Supreme Court under section 86A of the repealed Act against a WCT Full Bench decision, but only where the Full Bench proceedings were completed before the relevant day. This is a savings provision: if the Full Bench had not yet completed its proceedings, they would transfer under subparagraph (e)(ii) to SAET (which does not have a Full Bench structure), and the Supreme Court appeal route would likely be different. For completed Full Bench decisions, the old appeal right remains intact.

Subparagraph (h) gives a party who incurred costs in a WCT proceeding that was completed before the relevant day the right to commence proceedings for those costs in SAET, applying Division 7 of Part 6A and Part 6B of the repealed Act.

The regulations themselves do not create any new penalties or enforcement mechanisms. They are transitional machinery provisions. The penalties that apply to conduct after the transfer come from either the Return to Work Act 2014 or the South Australian Employment Tribunal Act 2014, depending on the context. For example, if a party fails to comply with an order of SAET made in a transferred proceeding, that non-compliance would be enforceable through the SAET Act’s contempt or compliance provisions, not through anything in these regulations.

However, the regulations do have an enforcement effect in an indirect sense. Subparagraph (i)(iv) empowers SAET to take steps to promote the smoothest possible transition, including giving directions as to procedural matters which then have effect according to their terms. If a party ignores such a direction, they may face adverse consequences under SAET’s procedural enforcement powers. That is not a penalty created by the regulations but by the SAET Act.

Costs orders are another area of quasi-enforcement. Subparagraph (h) allows costs proceedings to be commenced in SAET for costs payable under the repealed Act in respect of completed WCT proceedings. Those costs provisions (in Parts 6A and 6B of the repealed Act) may include provisions for interest and penalties for late payment, but again those are sourced in the repealed Act, not in these regulations. The regulations simply provide the jurisdictional gateway.

Parties should also be aware that a failure to treat a WCT decision as an SAET decision (as required by subparagraph (a)) could lead to an application for declaratory relief or for directions. If a party proceeds on the assumption that a WCT decision is void because the tribunal was dissolved, they would be wrong, and SAET could enforce the decision as its own.

In summary, these regulations establish a mandatory deeming system. There is no opt-out. Any confusion or non-compliance must be resolved through SAET’s ordinary processes, not through a specific penalty regime in these regulations.

The regulations are expressly made under the Return to Work Act 2014, specifically for the purposes of Schedule 9 clause 52 of that Act. That clause must have been the enabling provision that authorised the Governor to make transitional arrangements for the dissolution of the WCT. The regulations operate as subordinate legislation under the RTW Act and must be read consistently with that Act. They are also inextricably linked to the repealed Workers Rehabilitation and Compensation Act 1986, because they preserve certain provisions of that Act for specific transitional purposes. For instance, subparagraph (c) applies section 42 of the repealed Act as in force immediately before 1 July 2015. That means a practitioner must consult the version of the repealed Act from mid-2015, not the final version of the repealed Act as it stood immediately before repeal. Similarly, subparagraph (e)(i) preserves section 54 of the repealed Act as in force immediately before 1 July 2012 - an even earlier version.

The South Australian Employment Tribunal Act 2014 is the other key interacting statute. The regulations repeatedly invoke Part 5 of that Act for reviews and appeals (subparagraph (b)), and refer to compulsory conciliation conferences under that Act (subparagraphs (c) and (f)). The SAET Act’s provisions on Commissioners and Presidential members are also incorporated by reference in the deeming rules: a review from a WCT conciliation officer becomes a review of a SAET Commissioner’s decision; an appeal from a WCT single presidential member becomes an appeal from a SAET Presidential member.

The regulations also interact with the general law of statutory interpretation and transitional provisions. Schedule 9 of the RTW Act contains its own transitional clauses; these regulations supplement them. For example, subparagraph (c) refers to a right that exists “by virtue of the operation of Schedule 9 clause 42 of the Act”. That means clause 42 of Schedule 9 of the RTW Act must have kept alive some right under the repealed Act even after its repeal. This regulation then further redirects that right to SAET.

The Supreme Court is implicated through subparagraph (d), which preserves the right of appeal under section 86A of the repealed Act. That provision of the repealed Act remains effective for the limited purpose of appeals from completed WCT Full Bench decisions. Practitioners must check that the Full Bench proceedings were indeed completed before the relevant day; otherwise, the appeal route may be different, perhaps under the SAET Act.

Finally, the regulations interact with the Legislation Revision and Publication Act 2002, as evidenced by the legislative history noting that regulation 2 was omitted under that Act. That is a procedural interaction about the publication and revision of regulations, not a substantive one.

The legislative history appended to the regulations records two instruments. The principal regulations were made in 2016 as No 18, published in the Gazette on 3 March 2016, and commenced on 5 March 2016 (regulation 2 fixed the date). The principal regulations contained the full text of regulations 1, 3, and 4, plus a regulation 2 that presumably set the commencement date. Later, by regulation 2017 No 51, published in the Gazette on 16 May 2017 and commencing on 1 July 2017, regulation 2 was omitted under the Legislation Revision and Publication Act 2002 - meaning it was removed as a formal matter, likely because the commencement date had already passed and the provision was spent. More substantively, regulation 4 was varied by that same 2017 amendment. The legislative history entry says “r 4 varied by 51/2017 r 4(1),(3)”. The exact nature of the variation is not specified in the source text, but we can infer it was a refinement of the transitional provisions, possibly to clarify the treatment of certain proceedings or to extend coverage to additional categories of matters that had arisen since the original commencement. The variation took effect on 1 July 2017, about 16 months after the original commencement. Practitioners handling matters that straddle both dates should check whether the version of regulation 4 that applies to their matter is the original 2016 version or the 2017 amended version, depending on when the relevant right or proceeding came into existence or was transferred. The current published version includes the 2017 amendments. The source text provided appears to be the consolidated version as at the date of the query, but it does not show the pre-amendment text. For historical accuracy, a practitioner needing to know the state of the law as at March 2016 would need to reconstruct the original text from the Gazette.

The source text of the regulations contains no references to any decided cases. No court or tribunal decisions are cited, nor is there any note of judicial consideration. This is not surprising given that the regulations are a transitional instrument of limited scope and were made in 2016. However, it would be reasonable for a practitioner to expect that the interpretation of these provisions has been tested in SAET and possibly on appeal to the South Australian Supreme Court. For example, disputes might have arisen over whether a particular proceeding falls within subparagraph (e)(i) (section 54 actions with the 2012 version) or subparagraph (e)(ii) (any other case). Similarly, the meaning of “proceedings ... completed before the relevant day” in subparagraph (d) could give rise to argument if a Full Bench decision was made but not yet formally entered or perfected. The power of the President of SAET to give directions under subparagraphs (e), (f), and (g) might have been exercised and challenged. Nevertheless, because the source does not name any cases, this analysis cannot cite them. Practitioners should conduct their own search of SAET decisions citing this regulation - likely under its full title or the short citation “RTW (Transitional Arrangements) (Dissolution of WCT) Regulations 2016”. The limitation of this deep dive is that it must not invent litigation history. The only appropriate statement is that no cases are mentioned in the source, and therefore none are reported here.

Several traps lurk in these apparently straightforward transitional provisions. The first is the multiple reference dates. A practitioner must identify not only the relevant day (5 March 2016) but also the correct version of the repealed Act that applies to each subparagraph. Subparagraph (c) refers to section 42 as in force immediately before 1 July 2015; subparagraph (e)(i) refers to section 54 as in force immediately before 1 July 2012; subparagraphs (f) and (g) also refer to the pre-1 July 2015 version of section 42. A practitioner who assumes that “the repealed Act” means the final version of the Workers Rehabilitation and Compensation Act 1986 as it stood immediately before its repeal will get the law wrong for these transferred matters. Historical versions must be retrieved.

The second gotcha is the distinction between “proceedings” on foot and “rights” not yet exercised. Subparagraphs (b) and (c) deal with unexercised rights; subparagraphs (e), (f), and (g) deal with pending proceedings. A party who had a right of review but had not yet filed the application before 5 March 2016 is caught by (b). A party who had already filed and was in the middle of a review is caught by (e). The timing and date of filing are critical.

The third gotcha is the exclusion in subparagraph (d). It saves the right of appeal to the Supreme Court under section 86A of the repealed Act, but only for decisions of the WCT Full Bench “where those proceedings have been completed before the relevant day”. If the Full Bench had not completed its proceedings by 5 March 2016, the proceedings are transferred to SAET under (e)(ii) and the Supreme Court appeal route is lost. A party with a pending Full Bench matter needed to ensure it was finalised before the cut-off, or else accept that SAET will handle it and any appeal will be under the SAET Act.

The fourth gotcha concerns costs proceedings under subparagraph (h). That provision allows commencement of costs proceedings in SAET “in respect of proceedings before WCT completed before the relevant day”. It does not apply to WCT proceedings that were still pending on the relevant day - those are transferred under (e), and costs would be dealt with in SAET’s ordinary jurisdiction. So a party who settled a WCT matter in February 2016 but never resolved costs must bring the costs claim in SAET under (h) using the old costs provisions. A party whose matter was only settled in April 2016 would have their costs determined under the SAET Act, not the repealed Act.

The fifth gotcha is the broad power in subparagraph (i)(iv): SAET may “take other steps to promote or ensure the smoothest possible transition”. This is a Henry VIII clause in miniature - it allows SAET to do anything necessary, including possibly overriding procedural rules. A party faced with an unexpected direction from SAET under this power may find limited grounds to challenge it, given the wide wording.

The sixth gotcha is that the regulations do not automatically transfer WCT registrars or administrative staff. The SAET President’s power to give directions may include administrative directions, but there is no guarantee of continuity of case management. Parties should confirm with SAET that their file has been physically transferred.

Finally, note that the regulations only cover matters under the repealed Act that were still live at the relevant day. They do not cover rights that expired before the relevant day (e.g., a limitation period for review that had already run). Those rights are lost entirely.

Compliance with these regulations is essentially procedural: parties and their representatives must correctly characterise the status of any workers compensation matter that was pending or had an unexercised right as at 5 March 2016, and then take the appropriate step with SAET. The first step is to identify the date of the WCT decision or event. If a decision, direction, or order was already in force before 5 March 2016, it is automatically deemed an SAET decision - no active step is needed to confirm this, but parties should, for the sake of clarity, refer to it as an SAET decision in all subsequent correspondence. If a party had a right of review against a WCT conciliation officer’s decision but had not exercised it, they should now apply for a review under Part 5 of the SAET Act, treating the decision as if made by a SAET Commissioner. The time limit for that review would be governed by the SAET Act, not the repealed Act, unless the SAET Act itself has transitional provisions.

If a party had a right of appeal against a WCT single presidential member decision, they should now file an appeal under Part 5 of the SAET Act against a Presidential member decision. Again, the time limit and procedure follow the SAET Act. For an unexercised right to apply for a conciliation conference under section 42 of the repealed Act, the party should apply to SAET for a referral to a compulsory conciliation conference. The substantive law (section 42 as in force before 1 July 2015) will apply, but the procedural steps are under the SAET Act.

For proceedings that were already before the WCT on 5 March 2016, no filing is needed - they are automatically transferred. However, parties should confirm with SAET that the transfer has occurred and obtain the new SAET file number. If the President of SAET gives directions as to how the proceeding will continue, parties must comply with those directions. For section 54 actions, the applicable law is the pre-1 July 2012 version of section 54. Parties should locate that version and ensure their pleadings and evidence align with it.

For costs proceedings arising from a completed WCT matter, a party must commence a fresh proceeding in SAET. They should cite the repealed Act provisions (Part 6A Division 7 and Part 6B) as the source of the costs entitlement, and file in SAET rather than attempting to re-open the closed WCT file.

In all cases, parties should keep careful records of the dates and stages of their WCT matters. The risk of mischaracterisation is high. If a party mistakenly treats a transferred proceeding as a new SAET proceeding under the Return to Work Act 2014, they may invoke the wrong substantive law and jeopardise their claim. Similarly, if a party ignores a saved WCT decision thinking it is void, they risk being found in breach of an SAET order.

The safest approach is to review the WCT file and prepare a chronology: identify every decision, every pending application, and every unexercised right as at 5 March 2016. Then map each item to the correct subparagraph of regulation 4. If in doubt, seek directions from SAET under subparagraph (i)(iv) - the President may be willing to issue a practice direction or an individual direction to clarify the correct pathway. Finally, practitioners should ensure they have access to the historical versions of the repealed Act, particularly the 30 June 2012 version of section 54 and the 30 June 2015 version of section 42, as those are the texts that will govern the merits of the transferred proceedings.