14 November 2005 is the day on which the Workers’ Compensation Reform Act 2004 section 79 came into operation.
418. Limit on powers of courts to award damages against employer
A court must not award damages against a worker’s employer contrary to this Division.
419. No damages for noise‑induced hearing loss
Damages must not be awarded against a worker’s employer in respect of noise‑induced hearing loss.
420. No damages if compensation settlement agreement registered
(1) Damages must not be awarded against a worker’s employer in respect of an injury if a settlement agreement has been registered under Part 2 Division 12 in respect of the injury.
(2) This section does not apply if the settlement agreement applies only in respect of dust disease impairment compensation.
421. Threshold requirements for commencement of proceedings and award of damages
(1) Except as provided in section 422(2), court proceedings for an award of damages in respect of an injury must not be commenced against the worker’s employer unless the following requirements have been complied with —
(a) the worker’s degree of permanent whole of person impairment resulting from the injury has been assessed to be at least 15% and that assessment has been recorded by the Director as the supporting assessment for the worker’s election referred to in paragraph (b);
(b) the worker has elected in accordance with the regulations to retain the right to seek the damages and the Director has —
(i) registered the election in accordance with the regulations; and
(ii) notified the worker in writing that the election has been registered.
For the purposes of paragraph (a), an assessment of the worker’s degree of permanent whole of person impairment must be made as required by Part 4 Division 3.
(2) The worker is not required to identify in an election all employers who are potentially liable to contribute to damages.
(3) The Director may refuse to register an election if not satisfied that the worker has been properly advised as to the consequences of the election.
(4) A court must not award damages against a worker’s employer in respect of an injury unless —
(a) proceedings in the court —
(i) have been commenced in compliance with subsection (1); or
(ii) if the proceedings were commenced under section 422(2), the requirements referred to in subsection (1)(a) and (b) of this section have been complied with after the commencement of the proceedings;
and
(b) the court is satisfied that the worker’s degree of permanent whole of person impairment resulting from the injury is at least 15%.
Section 14 - Workers Compensation and Injury Management Act 2023 - November 2005 is the day on which the *Workers’ Compensation Reform Act 2004* section 79 came into operation. | Zoe
(5) In determining the worker’s degree of permanent whole of person impairment, the court is not bound by the supporting assessment recorded for the worker’s election but may admit the assessment as evidence relevant to the worker’s degree of permanent whole of person impairment.
(6) An election that the Director has registered under this section cannot be withdrawn and, after the election has been registered, another election in respect of the same injury cannot be registered.
(7) Subsection (6) does not prevent another assessment as to the worker’s degree of permanent whole of person impairment from being made (before or after the commencement of court proceedings) after the Director has registered the election and does not prevent another assessment from being used in court proceedings.
(8) The Director may at any time rectify an error that was made in registering an election.
(9) This section extends to an award of damages by way of consent judgment or settlement of an action.
(10) An election lodged for registration by the Director and evidence of a supporting assessment to be recorded by the Director must be in the approved form.
422. Commencement of court proceedings against employer of worker with terminal disease
(1) For the purposes of this section, a worker is taken to have a terminal disease if —
(a) the worker is diagnosed, by a medical practitioner who is a specialist in respiratory medicine, with 1 or more of the following diseases or conditions —
(i) diffuse pleural fibrosis;
(ii) lung cancer;
(iii) mesothelioma;
(iv) pneumoconiosis;
(v) silicosis;
and
(b) the medical practitioner certifies that the disease or condition is likely to cause the death of the worker within a period of 2 years beginning on the day on which the certificate is given.
(2) Court proceedings for an award of damages in respect of an injury may be commenced against the employer of a worker who has a terminal disease before compliance with the requirements referred to in section 421(1)(a) and (b).
423. Effect of election to retain right to seek damages on entitlement to compensation
(1) If a worker’s election to retain the right to seek damages has been registered by the Director as referred to in section 421(1)(b)(i) and the worker’s degree of permanent whole of person impairment as assessed by an approved permanent impairment assessor is less than 25% —
(a) the amount of any income compensation payments to which the worker is entitled under this Act in respect of the injury for any time during the first 6 months after the day on which the election is registered (the registration day) is the reduced amount provided for by subsection (2); and
(b) the worker is not entitled to any income compensation payment in respect of the injury to the extent that the payment would be for any time that is more than 6 months after the registration day; and
(c) the worker is not entitled to any permanent impairment compensation in respect of the injury; and
(d) the worker is not entitled to any medical and health expenses compensation, miscellaneous expenses compensation or workplace rehabilitation expenses compensation in respect of the injury for expenses incurred after the registration day.
(2) The reduced amount is —
(a) to the extent that it is for any time during the first 3 months after the registration day — 70% of the amount to which the worker would have been entitled if this section had not applied; and
(b) to the extent that it is for any other time during the first 6 months after the registration day — 50% of the amount to which the worker would have been entitled if this section had not applied.
424. Maximum damages award for less than 25% impairment
maximum damages amount for less than 25% impairment means the amount prescribed by the regulations as the maximum damages amount for less than 25% impairment.
(2) Unless the court is satisfied that the worker’s degree of permanent whole of person impairment is at least 25% —
(a) the maximum amount of damages that may be awarded against the worker’s employer in respect of the injury is the amount that is the maximum damages amount for less than 25% impairment; and
(b) the maximum amount may be awarded only in a most extreme case; and
(c) in any other case the amount of damages to be awarded must be a proportion, determined according to the severity of the injury or injuries, of the maximum amount that may be awarded.
(3) A determination of the amount of damages that may be awarded must be made on the basis of the maximum damages amount for less than 25% impairment at the time the award is made.
(4) This section has effect in respect of the amount of a judgment before any reduction required by operation of section 432.
(5) This section imposes no maximum amount for an award of damages against a worker’s employer if the court is satisfied that the worker’s degree of permanent whole of person impairment is at least 25%.
(6) This section does not create an entitlement to damages and is subject to any other law that prevents or limits the awarding of damages.
(7) This section extends to an award of damages by way of consent judgment or settlement of an action.
425. Special provisions for HIV and AIDS
(1) Damages must not be awarded against a worker’s employer in respect of the infection of a worker with HIV but damages may be awarded in respect of the worker’s contraction of AIDS.
(2) A worker who has contracted AIDS has, for the purposes of this Division, a degree of permanent whole of person impairment resulting from the disease of at least 25%.
(3) A certificate in writing by a medical practitioner to the effect that the worker has contracted AIDS must be recorded by the Director, and otherwise treated for the purposes of this Division, as if it were an assessment by an approved permanent impairment assessor that the worker’s degree of permanent whole of person impairment resulting from the disease was at least 25%.
(4) The regulations may make provision for or with respect to the methods for determining for the purposes of this section whether a worker has contracted AIDS.
(5) Part 4 Division 3 does not apply to the degree of permanent impairment of a worker resulting from the contraction of AIDS.
(6) The cause of action of a worker who has contracted AIDS is taken to have accrued, for the purposes of this Division and any limitation on the period within which proceedings may be commenced to recover damages for that cause, when a certificate is first given in writing by a medical practitioner to the effect that the worker has contracted AIDS.
426. Special provisions for dust disease damages claims
(1) For the purposes of this Division, a worker’s degree of permanent whole of person impairment resulting from a dust disease is —
(a) as assessed by a Dust Disease Medical Panel; or
(b) as agreed by the worker and the employer under this section.
(2) If the worker has made a claim for compensation for the dust disease, the Panel to which the worker’s claim was referred under section 123 is the Panel that assesses the worker’s degree of permanent whole of person impairment for the purposes of this Division.
(3) If the worker has not made a claim for compensation for the dust disease, the CEO must constitute a Dust Disease Medical Panel to determine the following questions and Part 2 Division 9 Subdivision 3 applies accordingly —
(a) Is or was the worker suffering from diffuse pleural fibrosis, lung cancer, mesothelioma, pneumoconiosis or silicosis?
(b) What is assessed to be the degree of permanent whole of person impairment resulting from the disease?
(4) The Panel determining a question for the purposes of this section is not bound by a previous assessment of a Dust Disease Medical Panel if the previous assessment has not been recorded by the Director as the supporting assessment for the worker’s election to retain the right to seek damages as referred to in section 421(1)(b).
(5) As an alternative to an assessment by a Dust Disease Medical Panel of a worker’s degree of permanent whole of person impairment resulting from a dust disease, the worker and the employer can agree —
(a) that the worker’s degree of permanent whole of person impairment resulting from a dust disease is at least 15%; and
(b) as to whether or not the worker’s degree of permanent whole of person impairment resulting from a dust disease is at least 25%.
(6) An agreement under subsection (5) must be accepted by the Director, and otherwise treated for the purposes of this Division, as if it were an assessment by a Dust Disease Medical Panel as to the worker’s degree of permanent whole of person impairment resulting from the dust disease.
(7) A worker is, for the purposes of this Division, taken to have a degree of permanent whole of person impairment resulting from that disease of at least 25% if —
(a) a Dust Disease Medical Panel determines that the worker is or was suffering from mesothelioma; or
(b) subsection (8) applies to the worker.
(8) This subsection applies to a worker if —
(a) a Dust Disease Medical Panel determines that the worker is or was suffering from diffuse pleural fibrosis, lung cancer, pneumoconiosis or silicosis; and
(b) the Dust Disease Medical Panel indicates in the determination, or a medical practitioner who is a specialist in respiratory medicine certifies, that the disease or condition is likely to cause the death of the worker within a period of 2 years beginning on the date of the determination or certificate, as the case requires.
427. Effect of this Division on contribution required from employer
(1) An employer is not liable to make any contribution under the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (the Contribution Act) in respect of damages awarded against a third party in relation to an injury if —
(a) section 421 prevents an award of damages against the employer in respect of the injury; or
(b) damages in respect of the injury have been awarded against the employer in accordance with section 424.
(2) If section 424 limits the damages that could have been awarded against an employer in respect of an injury —
(a) the contributions that the employer may be liable to make under the Contribution Act in respect of damages awarded against third parties in relation to the injury are not to exceed the damages that could have been awarded against the employer in accordance with section 424; and
(b) if the employer has made or been directed to make a contribution under the Contribution Act in respect of damages awarded against a third party in relation to the injury, the amount of damages that may be awarded against the employer in accordance with section 424 is reduced by the amount of that contribution.
(3) This section applies regardless of whether the damages are awarded against 1 or several employers.
428. Limits on agreements as to solicitor‑client costs
(1) This section applies to an action for damages independently of this Act if this Division applies to the awarding of damages in the action (whether or not an award of damages is actually affected by this Division).
(2) An agreement must not be made for a legal practitioner to receive, for appearing for or acting on behalf of a person in an action to which this section applies, any greater reward than is provided for by any legal costs determination made under the Legal Profession Uniform Law Application Act 2022 section 133.
(3) An agreement that is made contrary to this section is void.
429. Regulations
The regulations may provide for notification to be given to workers and employers —
(a) of the effect of provisions of this Division; and
(b) of things done under this Division.
Division 3 — Prevention of double recovery
430. Application of Division
This Division applies to an action for damages brought by a worker against —
(a) the worker’s employer; or
(b) a third party; or
(c) both the worker’s employer and a third party.
431. Worker to be given opportunity to discontinue action for damages
(1) If the court decides that an action for damages should succeed, the worker must be given a reasonable opportunity after damages have been ascertained but before judgment is entered to elect whether to have judgment or to discontinue.
(2) If the action is discontinued, the worker must pay the costs of the employer or any third party or of each of them or the part of those costs the court thinks fit.
432. Deduction or repayment of compensation if action for damages proceeds to judgment
(1) If an action for damages in respect of an injury proceeds to judgment (including the acceptance of an offer to consent to judgment) against the employer alone or against the employer and a third party —
(a) the amount of the damages payable to the worker under the judgment is reduced by the amount of any compensation paid under Part 2 for the injury (including the amount of any liability for the compensation discharged by a settlement agreement registered under Part 2 Division 12); and
(b) any apportionment of the damages between the employer and the third party must be on the basis of the amount of the damages as so reduced.
(2) If an action for damages in respect of an injury proceeds to judgment (including the acceptance of an offer to consent to judgment) against a third party alone —
(a) the amount of any compensation for the injury recovered by the worker must be a first charge on the judgment; and
(b) the third party is required to pay that amount to the employer; and
(c) the judgment is, to the extent of the payment, discharged by the payment.
(3) If the damages recoverable by a worker are reduced by reason of the contributory negligence of the worker, the amount of the compensation paid under Part 2 (including the amount of any liability for the compensation discharged by a settlement agreement registered under Part 2 Division 12) for the injury is notionally reduced by the proportion by which the worker’s damages were reduced, and that notionally reduced amount is the amount of the reduction in damages under subsection (1) or of the first charge on the judgment under subsection (2).
(4) There is no reduction under subsection (1) in the amount of the damages payable to the extent that the employer has recovered from the worker any amount of the compensation concerned under section 22.
433. Compensation proceedings not permitted if action for damages succeeds
(1) If an action for damages brought by a worker in respect of an injury is successful, the worker must not commence or continue proceedings for or in relation to compensation for the injury.
(2) For the purposes of this section, an action for damages is successful if —
(a) the action proceeds to judgment (including the acceptance of an offer to consent to judgment); or
(b) the action is settled by agreement or acceptance of an offer of compromise.
(3) If an action for damages is settled by agreement otherwise than by acceptance of an offer to consent to judgment or an offer of compromise, the employer or third party with whom the agreement is made must file a memorandum of the terms of the settlement with the Director in the approved form within 3 months after the date of execution of the agreement by the worker.
(4) A failure to comply with subsection (3) does not affect the validity of the settlement.
Division 4 — Remedies against third parties
434. Worker entitled to proceed against third party for damages
(1) When a third party is liable to pay damages in respect of an injury for which compensation is payable, the worker may take proceedings both against the third party to recover damages and against any person liable to pay compensation to recover that compensation.
(2) In the proceedings, the worker is not entitled to recover both damages and compensation and must bring to account in reduction of the worker’s entitlement to compensation any amount recovered by way of damages.
(3) In a case to which section 432 applies, the requirement under subsection (2) to bring to account in reduction of the worker’s entitlement to compensation any amount recovered by way of damages is satisfied by the operation of that section.
435. Employer’s right to be indemnified by third party
(1) An employer is entitled to be indemnified by a third party whose tort caused an injury to a worker to the full extent of the employer’s liability to pay compensation for the injury, whether or not the third party has discharged their liability to pay damages to the worker by judgment, settlement or otherwise.
(2) For the purposes of subsection (1) a reference to liability to pay compensation includes a reference to a liability that is discharged by a settlement agreement registered under Part 2 Division 12.
(3) If negligence of the employer caused or contributed to the worker’s injury, the extent of the indemnity of the employer by the third party is reduced by the degree of the employer’s negligence.
(4) If negligence of the worker caused or contributed to the worker’s injury, the extent of the indemnity of the employer by the third party is reduced by the degree of the worker’s negligence.
(5) The extent of the indemnity of the employer by the third party is reduced to the extent of any payment to the employer by the third party under section 432 or to the extent that under that section damages payable by the employer have been reduced by an amount of compensation paid by the employer.
(6) All questions as to the right to or amount of any indemnity under this section may, in default of agreement between the employer and the third party, be determined by a court of competent jurisdiction.
436. Recovery of third party indemnity payment from worker
(1) If a third party has paid the whole or any part of the damages payable to a worker in respect of an injury caused or contributed to by the third party and the third party has also indemnified the employer for the payment of any compensation for the injury, the third party may recover from the worker the amount so paid to the employer.
(2) For the purposes of subsection (1) a reference to compensation includes a reference to a liability for compensation that is discharged by a settlement agreement under Part 2 Division 12.
(3) The amount that may be recovered by the third party cannot exceed the amount of damages paid to the worker by the third party.
437. Employer’s right to recover unpaid damages from third party
(1) A reference in this section to compensation includes a reference to a liability for compensation that is discharged by a settlement agreement registered under Part 2 Division 12.
(2) If some of the damages payable to a worker by a third party for an injury have not been paid to the worker (the unpaid damages), the employer can recover the unpaid damages from the third party as a debt due to the employer if some of the compensation paid by the employer for the injury has not been refunded to the employer.
(3) The amount of compensation refunded to the employer includes the amount of any reduction in damages paid by the employer resulting from the operation of section 432 on account of compensation paid by the employer.
(4) Proceedings to recover the unpaid damages are to be taken by the employer in the name of the worker and at the expense of the employer.
(5) Any damages recovered by the employer from the third party in excess of the amount of compensation not refunded to the employer must be paid to the worker.
(6) The employer must indemnify the worker against all costs and expenses incurred in respect of proceedings taken in the name of the worker.
Division 5 — Choice of law
438. Terms used
State’s legislation about damages for an injury from employment means —
(a) for this State — Division 2;
(b) for another State — any provision of a law of that State that is declared by the regulations to be the State’s legislation about damages for an injury from employment;
substantive law does not include a law prescribing rules for choice of law but includes the following —
(a) a law that establishes, modifies or extinguishes a cause of action or a defence to a cause of action;
(b) a law prescribing the period within which an action must be brought (including a law providing for the extension or abridgment of that period);
(c) a law that provides for the limitation or exclusion of liability or the barring of a right of action if a proceeding on, or arbitration of, a claim is not commenced within a particular time limit;
(d) a law that limits the kinds of injury, loss or damage for which damages or compensation may be recovered;
(e) a law that precludes the recovery of damages or compensation or limits the amount of damages or compensation that can be recovered;
(f) a law expressed as a presumption, or rule of evidence, that affects substantive rights;
(g) a provision of a State’s legislation about damages for an injury from employment, whether or not it would be otherwise regarded as procedural in nature.
439. Extended meaning: injury, employer and worker
For the purposes of this Division —
(a) a reference to injury, employer and worker includes anything that is within the scope of a corresponding term in the statutory workers compensation scheme of another State; and
(b) the determination of what constitutes employment or whether or not a person is a worker or a worker’s employer must be made on the basis that those concepts include anything that is within the scope of a corresponding concept in the statutory workers compensation scheme of another State.
440. Applicable substantive law for work injury claims
(1) If there is an entitlement to compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker (whether or not compensation has been paid), the substantive law of that State is the substantive law that governs —
(a) whether or not a claim to which this Division applies in respect of the injury can be made; and
(b) if it can be made, the determination of the claim.
(2) This Division does not apply if there is an entitlement to compensation in respect of the injury under the statutory workers compensation scheme of more than 1 State.
(3) For the purposes of this section, there is considered to be an entitlement to compensation under a statutory workers compensation scheme of a State in respect of an injury if compensation in respect of the injury —
(a) would have been payable but for a provision of the scheme that excludes the worker’s right to compensation because the injury is attributable to any conduct or failure of the worker that is specified in that provision; or
(b) would have been payable if a claim for that compensation had been duly made, and (where applicable) an election to claim that compensation (instead of damages) had been duly made; or
(c) would have been payable if the worker had not been a participant in a scheme for the benefit of catastrophically injured workers.
(4) A reference in this section to compensation payable in respect of an injury does not include a reference to compensation payable on the basis of the provisional acceptance of liability.
441. Claims to which Division applies
(1) This Division applies to a claim for damages or recovery of contribution brought against a worker’s employer in respect of an injury that was caused by —
(a) a tort of the worker’s employer; or
(b) a breach of contract by the worker’s employer.
(2) This Division also applies to a claim for damages or recovery of contribution brought against a person other than a worker’s employer in respect of an injury that was caused by a tort or breach of contract of the person if the tort or breach of contract on which the claim is founded occurred in this State.
(3) This section applies even if the damages or recovery of contribution in respect of an injury that was caused by a tort are claimed in an action for breach of contract or other action.
442. Claim in respect of death included
For the purposes of this Division, a claim for damages in respect of death resulting from an injury must be considered as a claim for damages in respect of the injury.
443. Availability of action in another State not relevant
(1) For the purposes of this Division it makes no difference that, under the substantive law of another State —
(a) the nature of the circumstances is such that they would not have given rise to a cause of action had they occurred in that State; or
(b) the circumstances on which the claim is based do not give rise to a cause of action.
(2) In subsection (1) —
another State means a State other than the State with which the worker’s employment is connected.
Part 8 — Administration
444. Terms used
appointed member means a member of the Board appointed under section 453(1)(a) or (c);
chairperson means the person appointed under section 453(1)(a) as chairperson of the Board;
committee means a committee established under section 468(1);
workers compensation scheme means the scheme for workers compensation and injury management established under this Act.
Division 2 — WorkCover WA
445. WorkCover WA established
(1) WorkCover WA is established.
(2) WorkCover WA is a body corporate with perpetual succession.
(3) Proceedings may be taken by or against WorkCover WA in its corporate name.
(4) WorkCover WA may use, and operate under, the name WorkCover.
(5) WorkCover WA is an SES organisation under the Public Sector Management Act 1994.
It is an offence under section 524 for a person other than WorkCover WA to use or operate under the name WorkCover WA or a similar name.
446. Status
WorkCover WA is an agent of the Crown and has the status, immunities and privileges of the Crown.
447. Objective
The objective of WorkCover WA is to ensure the efficient and effective operation of the workers compensation scheme.
448. Functions
service provider means an insurer, self‑insurer or other person who participates in or provides services in connection with the workers compensation scheme.
(2) WorkCover WA has the following functions —
(a) to promote understanding of the workers compensation scheme through education and information;
(b) to promote and support the return to work of injured workers;
(c) to license, approve and regulate service providers that perform functions under this Act;
(d) to monitor compliance by workers, employers and service providers affected by the workers compensation scheme;
(e) to issue guidelines to assist service providers to perform their obligations under this Act;
(f) to provide for the resolution of disputes in a manner that is fair, just, economical, informal and quick;
(g) to fix recommended premium rates for workers compensation policies;
(h) to control and administer the General Account, the Trust Account and the DI Fund;
(i) to collect data from service providers and compile and publish information and reports as WorkCover WA considers necessary and desirable;
(j) to undertake and participate in research to advance or support the purposes of the workers compensation scheme and this Act;
(k) to promote the prevention of injuries from employment;
(l) to advise the Minister on the operation and effectiveness of the workers compensation scheme and any matter the Minister refers to WorkCover WA;
(m) any other function given to WorkCover WA under this or another Act.
449. Powers generally
acquire includes taking on lease or licence or in any other manner in which an interest in property may be acquired;
dispose of includes disposing of by way of lease or licence or in any other manner in which an interest in property may be disposed of.
(2) WorkCover WA has all the powers it needs to perform its functions.
(3) WorkCover WA may, for the purposes of performing any of its functions —
(a) determine and charge fees for the provision of any services related to the performance of its functions; and
(b) effect contracts of insurance providing indemnity against liability to make payments out of moneys standing to the credit of the General Account or the DI Fund; and
(c) acquire, dispose of or otherwise deal in real or personal property; and
(d) alter, improve, maintain, manage or develop real or personal property; and
(e) enter into any contract or arrangement, including a contract or arrangement for the provision of services to WorkCover WA.
(4) Subsection (3) does not limit subsection (2) or any of WorkCover WA’s other powers.
450. Delegation
(1) WorkCover WA may delegate any power or duty of WorkCover WA under another provision of this Act to —
(a) a Board member; or
(b) the CEO or another WorkCover WA officer.
(2) The delegation must be in writing executed by WorkCover WA.
(3) A person to whom a power or duty is delegated under this section cannot delegate the power or duty.
(4) A person exercising or performing a power or duty that has been delegated to the person under this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(5) Nothing in this section limits the ability of WorkCover WA to perform a function through a staff member or agent.
(6) This section does not apply to the execution of documents, but authority to execute documents on behalf of WorkCover WA can be given under section 451(5).
451. Execution of documents
(1) WorkCover WA must have a common seal.
(2) A document is duly executed by WorkCover WA if —
(a) the common seal of WorkCover WA is applied to it in accordance with subsections (3) and (4); or
(b) it is signed on behalf of WorkCover WA by a person or persons authorised to do so under subsection (5).
(3) The common seal of WorkCover WA must not be applied to any document except as authorised by WorkCover WA.
(4) The common seal of WorkCover WA must be applied to a document in the presence of any 2 Board members, each of whom must sign the document to attest that the common seal was so applied.
(5) WorkCover WA may, by writing under its common seal, authorise any of the following persons to sign documents on behalf of WorkCover WA, either generally or subject to the conditions that are specified in the authorisation —
(a) a Board member or Board members;
(b) a staff member or staff members.
(6) A document purporting to be executed in accordance with this section must be presumed to be duly executed unless the contrary is shown.
(7) When a document is produced bearing a seal purporting to be the common seal of WorkCover WA, it must be presumed that the seal is the common seal of WorkCover WA unless the contrary is shown.
Division 3 — Administration of WorkCover WA
Subdivision 1 — The Board
452. Board is governing body
(1) WorkCover WA must have a board.
(2) The Board is the governing body of WorkCover WA and, in the name of WorkCover WA, performs WorkCover WA’s functions under this Act or any other written law.
453. Board membership
(1) The Board consists of the following members —
(a) 1 person appointed by the Minister as a member and chairperson of the Board;
(b) the CEO;
(c) 5 persons appointed by the Minister of whom —
(i) 1 is the WorkSafe Commissioner or a public service officer employed in the department principally assisting in the administration of the Work Health and Safety Act 2020;
(ii) 1 is a person experienced in employers’ interests; and
(iii) 1 is a person experienced in workers’ interests; and
(iv) 1 is a person experienced in insurance matters; and
(v) 1 is a person experienced in accounting and financial management.
(2) The person appointed as chairperson must not be a public service officer.
(3) Before making an appointment under subsection (1)(c)(ii), the Minister must, in writing, request the Chamber of Commerce and Industry of Western Australia (Inc.) to submit the name of a person, or the names of the number of persons specified in the request, who, or each of whom, has the required experience and is willing to act as a member under subsection (1)(c)(ii).
(4) Before making an appointment under subsection (1)(c)(iii), the Minister must, in writing, request UnionsWA to submit the name of a person, or the names of the number of persons specified in the request, who, or each of whom, has the required experience and is willing to act as a member under subsection (1)(c)(iii).
454. Term of office of appointed members
(1) An appointed member holds office for the period, not exceeding 3 years, that is specified in the member’s instrument of appointment.
(2) An appointed member is eligible for reappointment.
455. Casual vacancies, resignation and removal from office
misconduct includes conduct that —
(a) brings WorkCover WA into disrepute; or
(b) otherwise renders the person unfit to hold office even though the conduct does not relate to a duty of the office.
(2) The office of an appointed member becomes vacant if the appointed member —
(a) dies, resigns or is removed from office under this section; or
(b) is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws; or
(c) is convicted of an offence punishable by imprisonment for more than 12 months; or
(d) is convicted of an offence under section 472(1) or (2) or 504(1).
(3) An appointed member may at any time resign from office by written notice given to the Minister.
(4) Subject to subsection (5), the resignation takes effect on the day on which the notice of resignation is received by the Minister.
(5) If the notice of resignation specifies a day on which it is to take effect that is later than the day on which the notice of resignation is received by the Minister, the resignation takes effect on the day specified in the notice of resignation.
(6) The Minister may remove an appointed member from office —
(a) on the grounds of neglect of duty; or
(b) on the grounds of misconduct or incompetence; or
(c) on the grounds of mental or physical incapacity, other than temporary illness, impairing the performance of the member’s duties; or
(d) on the grounds of absence without leave from 3 consecutive meetings of the Board of which the member has had notice; or
(e) for any other reasonable cause, regardless of when the events or circumstances giving rise to that cause occurred.
456. Extension of term of office during vacancy
(1) If the office of an appointed member becomes vacant because the member’s term of office expires by effluxion of time, the appointed member continues to be an appointed member during that vacancy until the day on which the vacancy is filled (whether by reappointment of the member or appointment of a successor to the member).
(2) Subsection (1) ceases to apply if the member resigns or is removed from office under section 455(6).
(3) The maximum period for which an appointed member continues to be an appointed member under this section after the member’s term expires is 3 months.
457. Leave of absence
The Minister may grant leave of absence to an appointed member on any terms and conditions the Minister thinks fit.
458. Alternate appointed members
(1) If an appointed member is unable to act because of illness, absence or other cause the Minister may appoint another person as an alternate appointed member to act temporarily in the appointed member’s place.
(2) Section 453(3) and (4) apply to the appointment of an alternate appointed member as if the appointment of the alternate appointed member were the appointment of the appointed member.
(3) While acting in accordance with the appointment, the alternate appointed member is taken to be, and to have any entitlement of, an appointed member.
(4) An act or omission of an alternate appointed member cannot be questioned on the ground that the occasion for the appointment or acting had not arisen or had ceased.
459. Remuneration and allowances of appointed members
An appointed member is entitled to be paid from the General Account any remuneration and allowances that the Minister may determine on the recommendation of the Public Sector Commissioner.
Subdivision 2 — Meetings
460. Meetings
(1) Meetings of the Board must be held at times and places determined by the Board.
(2) The Minister may at any time require the chairperson to convene a meeting of the Board to consider a matter specified by the Minister.
(3) A special meeting of the Board may at any time be convened by the chairperson.
461. Quorum
A quorum for a meeting of the Board is 4 members of the Board.
462. Presiding member
(1) The chairperson, if present, must preside at a meeting of the Board.
(2) If neither the chairperson nor an alternate appointed member for the chairperson is present at a meeting of the Board, the Board members present must elect 1 of their number to preside.
463. Procedure at meetings
To the extent that the meeting procedures of the Board are not fixed under this Act, they are to be as the Board determines.
464. Voting
(1) At a meeting of the Board each member present has a deliberative vote unless section 473 prevents the member from voting.
(2) In the case of an equality of votes, the member presiding has a casting vote in addition to a deliberative vote.
(3) A question is resolved by a majority of the votes cast.
465. Holding meetings remotely
The presence of a member at a meeting of the Board need not be by attendance in person but may be by that member and each other member at the meeting being simultaneously in contact by telephone or audio‑visual or other means of instantaneous communication.
466. Decision without meeting
(1) The purpose of this section is to enable the Board to make a decision on a matter (the matter) without a meeting of the Board being held.
(2) A notice setting out the matter at issue and a draft decision on the matter may be sent by the chairperson to each other Board member for consideration.
(3) A Board member may, by notice sent to each other Board member, cast a vote on whether or not the decision should be made.
(4) If at least 4 Board members cast a vote under subsection (3) and a majority of the votes are in favour of the decision being made, the decision is taken to have been made and is as effectual as if it had been made at a meeting of the Board.
(5) The Board must cause a record to be kept of each decision under subsection (4).
467. Minutes
The Board must cause accurate minutes to be kept of the proceedings at each of its meetings.
Subdivision 3 — Committees
468. Committees
(1) The Board may establish committees to assist WorkCover WA in the performance of its functions.
(2) The Board may discharge, alter or reconstitute a committee.
(3) A committee may include persons who are not Board members but must include at least 1 Board member.
(4) In appointing members of committees the Board must, as far as practicable, appoint —
(a) persons experienced in employers’ interests; and
(b) persons experienced in workers’ interests; and
(c) persons with experience relevant to the kinds of matters to be considered by the committee concerned; and
(d) other persons the Board considers appropriate.
469. Directions to committee
(1) The Board may give directions to a committee with respect to its functions and procedures.
(2) A committee must comply with a direction given to it by the Board.
470. Committee procedures
(1) The member of a committee who is a Board member or, if there are 2 or more of them, whichever of them is specified in their appointment as the person who is to preside, presides at meetings of the committee.
(2) Subject to subsection (1) and any directions of the Board, a committee may determine its own procedures.
471. Remuneration and allowances of committee members
A member of a committee is entitled to be paid from the General Account any remuneration and allowances that the Minister may determine on the recommendation of the Public Sector Commissioner.
Subdivision 4 — Disclosure of interests
472. Disclosure of material personal interest
(1) A Board member who has a material personal interest in a matter being considered or about to be considered by the Board must, as soon as possible after the relevant facts have come to the Board member’s knowledge, disclose the nature of the interest at a meeting of the Board.
(2) A member of a committee who has a material personal interest in a matter being considered or about to be considered by the committee must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the committee.
(3) Subsection (2) applies to a person who is a member of a committee and also a Board member even though the person has already disclosed the nature of the interest at a meeting of the Board.
(4) A disclosure under subsection (1) or (2) must be recorded in the minutes of the meeting.
473. Interested member cannot participate
(1) A Board member or a member of a committee who has a material personal interest in a matter being considered or about to be considered by the Board or the committee —
(a) must not vote, whether at a meeting or otherwise, on the matter; and
(b) must not be present while the matter is being considered at a meeting.
(2) A reference in subsection (1)(a) or (b) to a matter includes a reference to a proposed resolution under section 474 in respect of the matter, whether relating to that member or a different member.
474. Board may resolve s. 473 is inapplicable
Section 473 does not apply if —
(a) a member has disclosed under section 472 an interest in a matter; and
(b) the Board has at any time passed a resolution that —
(i) specifies the member, the interest and the matter; and
(ii) states that the members voting for the resolution are satisfied that the interest is so trivial or insignificant as to be unlikely to influence the disclosing member’s conduct and should not disqualify the member from considering or voting on the matter.
475. Quorum if s. 473 applies
(1) Despite section 461, if a member is disqualified under section 473(1) in relation to a matter, a quorum is present during the consideration of the matter if at least 3 members of the Board who are entitled to vote on any motion that may be moved at the meeting in relation to the matter are present.
(2) The Minister may deal with a matter to the extent that the Board cannot deal with it because of subsection (1).
476. Minister may declare s. 473 and 475 inapplicable
(1) The Minister may in writing declare that section 473 or 475 or both of them do not apply in relation to a specified matter either generally or in voting on particular resolutions.
(2) The Minister must cause a copy of a declaration made under subsection (1) to be laid before each House of Parliament within 14 sitting days of the House after the declaration is made.
Division 4 — Staff of WorkCover WA
477. Chief executive officer
(1) The CEO is appointed under the Public Sector Management Act 1994 Part 3.
(2) The CEO administers the day‑to‑day operations of WorkCover WA subject to the control of the Board.
478. Delegation by CEO
(1) The CEO may delegate to another WorkCover WA officer any power or duty of the CEO under another provision of this Act, other than a power or duty delegated to the CEO under section 450(1).
(2) The delegation must be in writing signed by the CEO.
(3) A person to whom a power or duty is delegated under this section cannot delegate that power or duty.
(4) A person exercising or performing a power or duty that has been delegated to the person under this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(5) Nothing in this section limits the ability of the CEO to perform a function through a staff member or agent.
479. Other staff
(1) Public service officers may be appointed under the Public Sector Management Act 1994 Part 3 to enable WorkCover WA to perform its functions.
(2) This section does not detract from the power that the Public Sector Management Act 1994 section 100 gives WorkCover WA to engage a person under a contract for services or appoint a person on a casual employment basis.
480. Use of other government staff
(1) WorkCover WA may, by arrangement with the relevant employing authority, make use, either full‑time or part‑time, of the services of any officer or employee —
(a) in the Public Service; or
(b) in a State agency; or
(c) otherwise in the service of the State.
(2) WorkCover WA may, by arrangement with a department of the Public Service or a State agency or instrumentality, make use of any facilities of the department, agency or instrumentality.
(3) An arrangement under subsection (1) or (2) must be made on terms agreed to by the parties.
Division 5 — Ministerial directions
481. Minister may give directions
(1) The Minister may give written directions to WorkCover WA with respect to the performance of its functions, either generally or in relation to a particular matter, and WorkCover WA must give effect to the directions.
(2) However, the Minister cannot give a direction under subsection (1) about the performance of a function under section 253.
(3) The text of a direction under this section must be included in the annual report submitted by the accountable authority of WorkCover WA under the Financial Management Act 2006 Part 5.
482. Protection for disclosure or compliance with directions
WorkCover WA or another person performing a function under this Act is not liable —
(a) in respect of any claim arising as a consequence of the disclosure of information or documents under section 481 or 498 or a duty imposed under the Financial Management Act 2006 or the Auditor General Act 2006; or
(b) for the fact of having done or omitted a thing that is required to be done or omitted by a direction given under this Act.
Part 9 — Financial provisions
Division 1 — General provisions
483. Application of Financial Management Act 2006 and Auditor General Act 2006
The provisions of the Financial Management Act 2006 and the Auditor General Act 2006 regulating the financial administration, audit and reporting of statutory authorities apply to and in respect of WorkCover WA and its operations.
484. Borrowing powers
WorkCover WA may, with the Treasurer’s prior approval —
(a) borrow or re‑borrow money; or
(b) otherwise arrange for financial accommodation to be extended to WorkCover WA.
485. Guarantee by Treasurer
(1) The Treasurer, on the Minister’s recommendation, may, in the name and on behalf of the State, guarantee the payment of any money payable by WorkCover WA in respect of money borrowed by it under section 484.
(2) A guarantee must be in a form, and contain terms and conditions, determined by the Treasurer.
(3) Before a guarantee is given, WorkCover WA must —
(a) give the Treasurer any security the Treasurer requires; and
(b) execute all instruments that are necessary for the purpose.
(4) The Treasurer may fix charges to be paid by WorkCover WA to the credit of the Consolidated Account in respect of a guarantee given under subsection (1).
486. Effect of guarantee
(1) The due payment of money under a guarantee given under section 485(1) must be —
(a) made by the Treasurer; and
(b) charged to, and paid out of, the Consolidated Account, which this subsection appropriates accordingly.
(2) The Treasurer must cause to be credited to the Consolidated Account any amounts received or recovered from WorkCover WA or otherwise in respect of any payment made by the Treasurer under a guarantee given under section 485(1).
Division 2 — General Account
487. Terms used
notional premium income, of a self‑insurer for a financial year, means the amount estimated by WorkCover WA as the amount that the self‑insurer would have been liable to pay as the premium for a workers compensation policy that would have been required under this Act for the financial year had the self‑insurer not been a self‑insurer;
premium income, of a licensed insurer for a financial year, means the total amount of the premium income of the insurer (whether received by or owing to the insurer) in respect of workers compensation policies issued or renewed during the financial year excluding any part of those premiums paid by way of reinsurance to any other licensed insurer;
total annual contribution, for a financial year, means an amount equal to the estimate approved under section 489 for the financial year.
(2) WorkCover WA’s estimate of the notional premium income of a self‑insurer for a period must be made on the basis of the recommended premium rate applicable to the industry classification appropriate to the self‑insurer and the remuneration of workers of the self‑insurer for that period.
(3) If an employer is a self‑insurer for only part of a financial year, the notional premium income of the self‑insurer for the financial year is the amount estimated by WorkCover WA as the amount that the employer would have been liable to pay as the premium for a workers compensation policy that would have been required under this Act for that part of the financial year had the employer not been a self‑insurer.
488. WorkCover WA General Account established
(1) An account called the WorkCover WA General Account is established as an agency special purpose account under the Financial Management Act 2006 section 16.
(2) The following must be credited to the General Account —
(a) all contributions received or recovered under this Division;
(b) money received by or for WorkCover WA, other than money required to be credited to the Trust Account or the DI Fund;
(c) money required to be transferred to the General Account under section 142(8) or 258(1);
(d) any income derived from the investment of money standing to the credit of the General Account;
(e) any other amount required under this or any other Act to be paid or credited to the General Account.
(3) The following must be charged to the General Account —
(a) money paid by WorkCover WA and any other money required for the administration of this Act and the carrying out of WorkCover WA’s functions, other than money required to be charged to the Trust Account or the DI Fund;
(b) money required to be transferred to the DI Fund under section 258(1);
(c) the costs and expenses incurred in the operation and administration of the District Court in dealing with appeals under Part 6 Division 8;
(d) any other money required under this or any other Act to be paid from or charged to the General Account;
(e) any other money paid by WorkCover WA, other than money required to be charged to the Trust Account or the DI Fund.
(4) In subsection (3)(a) the reference to money required for the administration of this Act includes —
(a) money required for the remuneration and allowances of members of the Board, members of committees and staff members; and
(b) the costs of and incidental to the administration of the General Account, the Trust Account and the DI Fund.
(5) The amount of the costs and expenses referred to in subsection (3)(c) must be —
(a) determined in the manner approved by the Treasurer after consultation with the CEO and the chief executive officer of the department principally assisting in the administration of the District Court of Western Australia Act 1969; and
(b) credited to the Consolidated Account.
(6) All amounts required under this or any other Act to be paid to or from the General Account are credited or charged to the General Account.
489. Estimate of funds needed for General Account
(1) WorkCover WA must, before the commencement of each financial year —
(a) prepare an estimate of the total annual contribution necessary to be credited to the General Account for the purposes of this Act for that financial year; and
(b) as soon as practicable after the estimate is prepared, submit it to the Minister for approval.
(2) The estimate does not have any force or effect unless and until it is approved by the Minister.
(3) This section applies despite the provisions of the Financial Management Act 2006.
490. Calculation of estimate
estimate means an estimate prepared under section 489(1)(a) for a financial year;
preceding financial year means the financial year immediately before the financial year for which an estimate is prepared.
(2) If the General Account is in surplus at the commencement of the preceding financial year, the estimate must be calculated by deducting from the estimated expenditure the sum of —
(a) the estimated receipts of the General Account arising from all sources other than contributions under this Division; and
(b) the balance of the General Account at the commencement of the preceding financial year.
(3) If the General Account is in deficit at the commencement of the preceding financial year, the estimate must be calculated by deducting the estimated receipts of the General Account arising from all sources other than contributions under this Division, from the sum of —
(a) the estimated expenditure; and
(b) the balance of the General Account at the commencement of the preceding financial year.
(4) In calculating the estimate for a financial year, both the estimated increase required in reserves over the financial year and depreciation may be included in the estimated expenditure of the General Account.
491. Required contributions by insurers and self‑insurers to General Account
(1) WorkCover WA must make the following calculations and determinations for the purpose of calculating the contributions to the General Account to be required from licensed insurers and self‑insurers to yield an amount equal to the total annual contribution for a financial year (the current year) —
(a) add the total premium income of all licensed insurers to the total notional premium income of all self‑insurers for the financial year preceding the current year to arrive at an amount that is the total premium income for that preceding financial year;
(b) determine the percentage (the contribution percentage) of the total premium income for the preceding financial year that yields the total annual contribution for the current year;
(c) calculate a contribution (the required contribution) for each licensed insurer and each self‑insurer for the current year by applying the contribution percentage to the premium income of the licensed insurer, or the notional premium income of the self‑insurer, for the preceding financial year.
(2) WorkCover WA may set a minimum required contribution for a financial year (which may be a different minimum for licensed insurers and self‑insurers).
(3) If a minimum required contribution is set for a financial year, the determination of the contribution percentage for that financial year must make due allowance for the effect that the minimum required contribution will have on the percentage of total premium income required to yield an amount equal to the total annual contribution for the current year.
(4) Each licensed insurer and self‑insurer must pay to WorkCover WA, to be credited to the General Account —
(a) the required contribution for the current year calculated under this section; or
(b) if a minimum required contribution has been set that is greater than the calculated contribution referred to in paragraph (a) — the minimum required contribution for that year.
(5) In the case of a group of related self‑insurers comprised of the holder of a self‑insurer licence and each of the related entities of the holder to which the licence extends —
(a) the required contribution for the self‑insurers of the group must be calculated as a single contribution for the group; and
(b) a minimum required contribution set by WorkCover WA applies to the contribution calculated for the group; and
(c) each self‑insurer of the group is jointly and severally liable for payment of the required contribution.
(6) When an insurer becomes a licensed insurer during the current year (a new licensed insurer) or an employer becomes a self‑insurer during the current year (a new self‑insurer) —
(a) no contribution to the General Account for the current year is required from the new licensed insurer or new self‑insurer; and
(b) the calculation under this section of the required contribution must not include any amount in respect of a new licensed insurer or new self‑insurer.
(7) To the extent that a contribution payable under this section includes an amount that is a tax, the tax is imposed.
[Section 491 amended: No. 22 of 2023 s. 8.]
492. Arrangements for payment of contributions
Section 262 applies to and in relation to the payment of contributions to the General Account under this Division as if the contributions were DI Fund contributions.
493. Provision of information by licensed insurers and self‑insurers
WorkCover WA may give a direction under section 264(1) for the purposes of this Division and section 264(2) and (3) apply to and in relation to the direction accordingly.
Division 3 — Trust account
494. WorkCover WA Trust Account established
(1) An account called the WorkCover WA Trust Account is established —
(a) as an agency special purpose account under the Financial Management Act 2006 section 16; or
(b) with the approval of the Treasurer, at a bank, as defined in section 3 of that Act.
(2) The following must be credited to the Trust Account —
(a) money paid to WorkCover WA under section 141(1)(a);
(b) money paid to WorkCover WA under section 142(2) or (6);
(c) money paid to WorkCover WA under section 377;
(d) any income derived from the investment of money standing to the credit of the Trust Account.
(3) There must be paid from money standing to the credit of the Trust Account to or on behalf of the respective persons entitled to money standing to the credit of the Trust Account, the amount apportioned to them respectively in accordance with an order of a dispute resolution authority, plus interest payable.
(4) WorkCover WA must, with the approval of the Treasurer, fix the rate of interest payable to a person entitled to money standing to the credit of the Trust Account in accordance with an order of a dispute resolution authority.
495. Investment of money standing to credit of Trust Account
(1) Money standing to the credit of the Trust Account becomes 1 common fund to be invested by WorkCover WA.
(2) Investments made from money standing to the credit of the Trust Account must not be made on account of or belong to any particular person.
(3) Interest or income earned by the investments must be credited to the Trust Account.
(4) WorkCover WA may invest any money standing to the credit of the Trust Account in a manner approved by the Treasurer.
Part 10 — Management and disclosure of information
Division 1 — Approved forms and electronic processes
496. Approved forms
(1) The CEO may approve forms for use under this Act.
(2) For any document or information that this Act requires to be in an approved form, the power of the CEO to approve the form extends to —
(a) the form in which the document or information must be created or recorded and provided or exchanged (which may include an electronic, paper or other form or use of an electronic database or document system); and
(b) the manner in which it must be conveyed or transmitted to a recipient.
(3) Subsection (2) does not limit the other matters that may be dealt with in approving the form, such as layout, content and accompanying documents and information.
(4) An approved form may require a matter stated in the form to be verified by statutory declaration.
(5) Regulations and rules made for the purposes of section 497(3) apply to an approved form unless the CEO specifies otherwise.
497. Service, documents and information, including facilitation of electronic processes
give includes serve, send, transmit, notify, provide, make available or any other similar word or expression;
lodge includes file or register.
(2) In this section a reference to document includes —
(a) a copy of an original, certified or sealed document; and
(b) any information, statement or other matter required to be endorsed on or attached to a document.
(3) The arbitration rules, conciliation rules and regulations may provide for the following —
(a) the means by which documents and information given under this Act may or must be created, recorded, given, exchanged, accessed or obtained;
(b) the creation, recording, giving, lodging and exchange of documents and information by electronic means for, or related to, the purposes of this Act, including the use of an electronic database or document system;
(c) when the giving, lodgment or exchange of documents and information as mentioned in paragraph (b) is taken to have been effected;
(d) the authentication of documents and information given, lodged or exchanged as mentioned in paragraph (b);
(e) the production of documents and information kept electronically;
(f) the status and effect of things done electronically under the rules or regulations.
Division 2 — Disclosure of information
498. Minister to have access to information
information means information specified, or of a description specified, by the Minister that relates to WorkCover WA’s functions.
(2) The Minister is entitled —
(a) to have information in the possession of WorkCover WA; and
(b) if the information is in or on a document — to have, and make and retain copies of, that document.
(3) For the purposes of subsection (2), the Minister may —
(a) request WorkCover WA to give information to the Minister; and
(b) request WorkCover WA to give the Minister access to information; and
(c) for the purposes of paragraph (b), make use of the staff and facilities of WorkCover WA to obtain the information and give it to the Minister.
(4) WorkCover WA must comply with a request given under subsection (3) and make staff and facilities available to the Minister for the purposes of subsection (3)(c).
499. Information held by Conciliation Service or Arbitration Service
Any document or information held by the Conciliation Service or the Arbitration Service is available, on the request of the CEO, to WorkCover WA to enable it to perform its functions and compile and record statistics, records and reports for the purposes of this Act.
500. Licensed insurers and self‑insurers must provide information to WorkCover WA
(1) A licensed insurer or self‑insurer must provide to WorkCover WA the following information in accordance with directions published under subsection (2) and the approved form —
(a) information about claims for compensation made by workers, including —
(i) the status of any liability decisions in respect of the claims; and
(ii) forms of compensation claimed; and
(iii) estimated and actual payments of compensation made;
(b) information about injury management, including implementation and progression of any return to work program or workplace rehabilitation;
(c) information about common law claims for damages resulting from an injury;
(d) information about workers compensation policies —
(i) issued, renewed or cancelled by the insurer; or
(ii) that have lapsed;
(e) information that WorkCover WA requires to fix recommended premium rates;
(f) any other information that WorkCover WA specifies by directions published under subsection (2)(b).
(2) WorkCover WA may publish on the WorkCover WA website directions as to —
(a) details of the information required under subsection (1); and
(b) any information, in addition to the information required under subsection (1)(a) to (e), that the licensed insurer or self‑insurer must provide to WorkCover WA; and
(c) the period within which, or frequency with which, information must be provided or updated under subsection (1).
(3) A licensed insurer or self‑insurer who fails to comply with subsection (1) commits an offence.
501. Direction to provide WorkCover WA with information
relevant person means any of the following —
(a) a licensed insurer, former licensed insurer, self‑insurer or former self‑insurer;
(b) an employer;
(c) a health professional;
(d) a workplace rehabilitation provider.
(2) The CEO may direct a relevant person to provide WorkCover WA with any information that the CEO thinks necessary to enable WorkCover WA to perform its functions and compile and record statistics, records and reports for the purposes of this Act.
(3) The direction must be in writing and specify the time within which the information must be provided.
(4) A relevant person given a direction under subsection (2) must provide the information to WorkCover WA in the approved form.
(5) A relevant person given a direction under subsection (2) who fails to comply with that direction commits an offence.
502. Disclosure of information to work health and safety officers
(1) If the chief executive officer of the department principally assisting in the administration of the Work Health and Safety Act 2020 or the WorkSafe Commissioner makes a written request to WorkCover WA to disclose information or data (including information and data about accidents, injuries and diseases) relevant to work health and safety that is in the possession of WorkCover WA, WorkCover WA must comply with the request.
(2) This section has effect despite any other provision of this Act.
503. WorkCover WA may disclose information
relevant information means information required for the purposes of ascertaining potential liability on a claim for compensation or damages, or any potential contribution or recovery in relation to a claim for compensation or damages.
(2) WorkCover WA may, on application in the approved form, disclose to the applicant relevant information held in its records relating to the following —
(a) the identity of a worker’s employer at a specified time or during a specified period;
(b) whether an employer was insured at a specified time or during a specified period, and the identity of the insurer, if any;
(c) any other matter prescribed by the regulations.
(3) In any proceedings, a document provided by WorkCover WA under subsection (2) is, in the absence of proof to the contrary, proof of the relevant information in the document.
504. Confidentiality
(1) A person must not, directly or indirectly, use or disclose any information obtained by the person because of —
(a) the person’s office, position, employment or engagement under or for the purposes of this Act; or
(b) any disclosure made to the person under or for the purposes of this Act.
(2) Subsection (1) does not apply in relation to the use or disclosure of information that is —
(a) already in the public domain; or
(b) statistical or other information that could not reasonably be expected to lead to the identification of any person to whom it relates.
(3) A person does not commit an offence under subsection (1) if the use or disclosure of the information is authorised under section 505(1).
505. Authorised use or disclosure of information
(1) For the purposes of this Act, the use or disclosure of information is authorised if the information is used or disclosed in good faith —
(a) for the purposes of, or in connection with, performing a function under this Act or another law; or
(b) as required or authorised under this Act or another law; or
(c) for the purposes of any legal proceedings arising under this Act or another law; or
(d) under an order of a court or other person or body acting judicially; or
(e) with the consent of the person to whom the information relates; or
(f) in other circumstances prescribed by the regulations.
(2) If the use or disclosure of information is authorised under subsection (1) —
(a) no civil or criminal liability is incurred in respect of the use or disclosure; and
(b) the use or disclosure is not to be regarded as a breach of any duty of confidentiality or secrecy imposed by law; and
(c) the use or disclosure is not to be regarded as a breach of professional ethics or standards or as unprofessional conduct.
506. Disclosure of claim information for pre‑employment screening
(1) A person must not disclose information about a worker’s claim for compensation to another person for the purpose of providing information to that person about the worker’s suitability for employment with a prospective employer.
(2) Subsection (1) does not apply if the information is disclosed in relation to a return to work program or for the purpose of providing information about the worker in relation to the obligation under section 166(2)(b).
(3) A person cannot, for the purpose of selection for employment, be required to disclose information about any claim for compensation by the person.
Part 11 — Regulation and enforcement
507. Term used: compliance purposes
compliance purposes has the meaning given in section 510(1).
Division 2 — Inspectors
508. Inspectors
(1) The CEO may, in writing, designate a staff member as an inspector.
(2) A person may be designated as an inspector for a fixed or indefinite period.
(3) The CEO may, in writing, revoke a designation at any time.
509. Identification of inspectors
(1) The CEO must give each inspector an identity card.
(2) The identity card must —
(a) identify the person as an inspector; and
(b) include any other matter prescribed by the regulations.
(3) An inspector must —
(a) carry the inspector’s identity card when exercising a power under this Act; and
(b) if it is practicable to do so — produce the identity card before exercising a power under this Act.
(4) However, if for any reason it is not practicable to comply with subsection (3)(b) before exercising the power, the inspector may exercise the power and then produce the identity card at the first reasonable opportunity.
(5) In any proceedings, the production of an identity card is evidence of the designation of the inspector to whom the identity card relates.
(6) A person must not, without reasonable excuse, fail to return their identity card to the CEO within 14 days after ceasing to be an inspector.
Division 3 — Inspections and investigations
510. Compliance inspections
(1) An inspector may carry out an inspection for any of the following purposes (compliance purposes) —
(a) monitoring whether this Act has been, or is being, complied with;
(b) without limiting paragraph (a), monitoring whether a person is complying with the conditions, if any, of that person’s licence, registration or approval under this Act;
(c) monitoring whether a person who is licensed, registered or approved under this Act continues to meet the criteria for the grant of that licence, registration or approval;
(d) investigating a suspected contravention of this Act;
(e) assisting in the determination of an application or other matter before WorkCover WA.
(2) Nothing in subsection (1) limits the functions of other staff members under this Act.
511. Entry powers
(1) An inspector may, for compliance purposes, at any time enter a place where, or where the inspector reasonably suspects —
(a) workers are employed; or
(b) records that are relevant to the compliance purposes are kept.
(2) An inspector may enter a place under subsection (1) with or without the consent of the person with management or control of the place and without prior notice to any person.
(3) An inspector must, as soon as practicable after entering a place under subsection (1), take all reasonable steps to notify the person with management or control of the place of the entry and the purpose of the entry.
(4) However, an inspector is not required to notify any person if to do so would defeat the purpose for which the place was entered or cause unreasonable delay.
512. General powers on entry
(1) An inspector who enters a place under section 511(1) may do any of the following —
(a) inspect, examine and make enquiries at the place;
(b) inspect and examine any thing (including a document) at the place;
(c) bring to the place and use any equipment or other thing that may be required;
(d) take recordings (including photographs, films, audio, video, digital or other recordings);
(e) require a person who is at the place to give the inspector reasonable help to exercise the inspector’s powers under paragraphs (a) to (d);
(f) require a person who is at the place to state the person’s full name, date of birth, the address of where the person is living and the address of where the person usually lives;
(g) seize any thing at the place that is or may afford evidence of a contravention of this Act;
(h) exercise any other power of an inspector that is reasonably necessary.
(2) If an inspector takes any thing away from the place, the inspector must give the person with management or control of the place a receipt for the thing.
(3) A person must not refuse or fail to comply with a requirement made by an inspector under subsection (1)(e) or (f).
513. Persons assisting inspectors
(1) A person (the assistant) may accompany an inspector entering a place under section 511(1) to assist the inspector if the inspector considers the assistance is necessary.
(2) The reference to a person in subsection (1) includes an interpreter.
(3) The assistant —
(a) may do the things at the place and in the manner that the inspector reasonably requires to assist the inspector to exercise the inspector’s powers; but
(b) must not do anything that the inspector does not have power to do.
(4) Anything done lawfully by the assistant is taken to have been done by the inspector.
Division 4 — Powers relating to documents and information
514. Power to require auditor’s certificate
(1) An inspector may, by written notice given to an employer, require the employer to provide to the inspector a certificate from an auditor containing a statement as to —
(a) the number of workers employed by the employer during a specified period; and
(b) the amount of remuneration paid by the employer to each worker during that period.
(2) In subsection (1) —
auditor means a person registered as an auditor under the Corporations Act 2001 (Commonwealth) Part 9.2.
(3) The certificate must be provided within the period (being not less than 28 days) specified in the notice.
(4) An employer must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1).
(5) If a court convicts a person, or finds a person guilty, of an offence against subsection (4), the court may order the person to give to WorkCover WA the certificate required under subsection (1) within 14 days after the order is made.
(6) An order may be made under subsection (5) in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence.
515. Power to require documents and answers to questions
(1) An inspector may, for compliance purposes, do the following (after entering a place under section 511(1) or at any other time) —
(a) require a person to tell an inspector who has custody of, or access to, a document;
(b) require a person who has custody of, or access to, a document to provide that document, or a copy or reproduction of that document, to an inspector —
(i) while the inspector is at a place entered under section 511(1); or
(ii) within a specified period;
(c) require a person —
(i) to submit to an interview with an inspector at a reasonable time and place, and in the way, determined by that inspector; and
(ii) to answer any questions put by that inspector during the interview; and
(iii) if and as directed by that inspector — to verify any answers given by statutory declaration;
(d) require a person —
(i) to answer, within a specified period and in a specified way, any questions put by an inspector otherwise than by way of an interview; and
(ii) if and as directed by that inspector — to verify any answers given by statutory declaration;
(e) require a person to state the person’s name and address.
(2) An interview conducted under subsection (1)(c)(i) —
(a) may be conducted in private or otherwise, as the inspector considers appropriate; and
(b) may be recorded in any way the inspector considers appropriate.
(3) Subsection (2)(a) does not prevent a person, including an interpreter, being present at the interview to assist the inspector conducting the interview if the inspector considers the assistance is necessary.
(4) If an interview is to be recorded under subsection (2)(b), the inspector conducting the interview must, before the interview, inform the person being interviewed —
(a) that the interview will be recorded; and
(b) of the way in which the interview will be recorded.
(5) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1).
516. Abrogation of privilege against self‑incrimination
(1) An individual is not excused from complying with a requirement under this Act to answer a question on the ground that the answer to the question may tend to incriminate the individual or render the individual liable to a penalty.
(2) However, the answer to a question given by an individual in compliance with a requirement under this Act is not admissible as evidence against the individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer.
(3) This section does not apply to a requirement under Part 6.
Section 372 applies to the privilege against self‑incrimination in respect of a requirement under Part 6.
517. Power to copy and retain documents
(1) An inspector may —
(a) make copies or reproductions of, or take extracts from, a document (an original document) provided to, or otherwise obtained, accessed or recovered by, an inspector under this Act; and
(b) keep the original document for the period that the inspector considers necessary.
(2) While an inspector retains custody of an original document, the inspector must permit the following persons to inspect, or make copies of, the original document at all reasonable times —
(a) the person who provided the original document or from whom it was obtained;
(b) the owner of the original document;
(c) a person authorised in writing by a person referred to in paragraph (a) or (b) on the production of the written authorisation to WorkCover WA.
Division 5 — Contravention of Act
518. Who can prosecute offences
(1) Proceedings for an offence against this Act may be taken in the name of WorkCover WA by a person authorised by the CEO to do so.
(2) An authorisation under subsection (1) may be given generally or in relation to a specified offence or specified offences.
(3) If a prosecution notice alleging an offence against this Act purports to be made or sworn by a person authorised by the CEO to take proceedings for offences of that kind, it must be presumed, in the absence of proof to the contrary, that the prosecution notice was made or sworn by the person.
519. Time limit for prosecutions
A prosecution for an offence against this Act must be commenced within 2 years after the day on which the offence was allegedly committed.
520. Application of fines
A penalty imposed for an offence against this Act must be credited to the General Account for use by WorkCover WA.
521. Offences under Acts about work health and safety not affected
Nothing in this Act affects any proceedings for a fine or penalty under an enactment relating to work health and safety or the application of the fine or penalty.
522. Infringement notices and the Criminal Procedure Act 2004
(1) If this Act is a prescribed Act for the purposes of the Criminal Procedure Act 2004 Part 2, this section applies in relation to the service of an infringement notice under that Part by an authorised officer in relation to an alleged offence under this Act.
(2) The infringement notice must be served within —
(a) 21 days after the authorised officer forms the opinion that there is sufficient evidence to support the allegation of the offence; and
(b) 12 months after the alleged offence is believed to have been committed.
(3) The Criminal Procedure Act 2004 Part 2 is modified to the extent necessary to give effect to this section.
Division 6 — Offences
523. Hindering or obstructing inspector
A person must not hinder or obstruct an inspector in exercising the inspector’s powers, or induce or attempt to induce any other person to do so.
524. Using name WorkCover WA
A person other than WorkCover WA who uses or operates under the name WorkCover WA, or any name that is so similar that it is likely to be misunderstood as referring to WorkCover WA, commits an offence.
525. False or misleading information
(1) A person must not provide false or misleading information —
(a) in, or in connection with, an application made or a notice or other document given under this Act; or
(b) in compliance, or purported compliance, with a requirement under this Act; or
(c) for any other purpose under this Act.
(2) For the purposes of subsection (1), a person provides false or misleading information if the person —
(a) makes a statement that the person knows is false or misleading in a material particular; or
(b) omits from a statement made by the person anything without which the statement is, to the person’s knowledge, misleading in a material particular; or
(c) gives information that —
(i) the person knows is false or misleading in a material particular; or
(ii) omits anything without which the information, to the person’s knowledge, is misleading in a material particular.
526. Fraud
A person who fraudulently obtains or fraudulently attempts to obtain any benefit under this Act by malingering or by making a false claim or statement commits an offence.
527. Preventing another person from complying with Act
A person must not directly or indirectly prevent another person from complying with a requirement under this Act.
Part 12 — State with which employment connected
528. Terms used
court includes a tribunal constituted by a judicial officer;
determination, in relation to a court proceeding, includes a determination made by the court with the consent of the parties to the proceeding;
State, in a geographical sense, includes any area or space prescribed by the regulations as a State’s adjacent area.
529. Connection of employment with a State
(1) A worker’s employment is connected with —
(a) the State in which the worker usually works in that employment; or
(b) if no State or no one State is identified by paragraph (a) — the State in which the worker is usually based for the purposes of that employment; or
(c) if no State or no one State is identified by paragraph (a) or (b) — the State in which the employer’s principal place of business in Australia is located.
(2) In the case of a worker working on a ship, if no State or no one State is identified by subsection (1), a worker’s employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than one State) the State in which the ship most recently became registered.
(3) If no State is identified by subsection (1) or (if applicable) (2), a worker’s employment is connected with this State if —
(a) the worker is in this State when the injury occurs; and
(b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.
(4) In deciding whether a worker usually works in a State —
(a) regard must be had to the worker’s work history with the employer over the preceding period of 12 months and the intentions of the worker and employer; and
(b) regard must not be had to any temporary arrangement under which the worker works in a State for a period not longer than 6 months.
(5) Without limiting subsection (4), in deciding whether a worker usually works in a State or is usually based in a State for the purposes of employment, regard must be had to any period during which a worker works in a State or is in a State for the purposes of employment whether or not, under the statutory workers compensation scheme of that State, the person is regarded as a worker, or as working or employed, in that State.
Section 19(3) provides that there is no liability for compensation in respect of an injury suffered by a worker outside Australia if the worker —
(a) has never resided in Australia; or
(b) has been continuously resident outside Australia for more than 24 months when the injury occurs.
530. Determining if employment is connected with this State
(1) This section applies to proceedings before a court in relation to a claim for compensation.
(2) If in the proceedings the question of whether a worker’s employment is connected with this State arises, the court must determine, in accordance with section 529, the State with which the worker’s employment is connected unless section 532 requires a previous determination of the question to be recognised.
(3) The court must cause a determination under subsection (2) to be entered in the records of the court.
531. Applying to District Court to determine connection
(1) A party to a claim for compensation made under this Act may apply to the District Court for the court to determine the State with which the worker’s employment is connected unless section 532 requires a previous determination of the question to be recognised.
(2) The District Court must determine an application under subsection (1) in accordance with section 529 and cause the determination to be entered in the records of the court.
532. Recognition of previous determination by court
(1) When the question of the State with which a worker’s employment is connected arises, a previous determination of the question must be recognised if it was made —
(a) by a court of this State under section 530(2) or 531(2); or
(b) by a court of another State under a provision of a law that corresponds with section 530(2) or 531(2); or
(c) by a court of this State or another State in the course of proceedings on a claim for damages to which the provisions of Part 7 Division 5 or corresponding provisions of the law of another State apply.
(2) This section does not prevent an appeal relating to the determination.
(3) If the determination is altered on appeal, the altered determination must be recognised under subsection (1).
Part 13 — Miscellaneous
533. Judicial notice
(1) All courts and persons acting judicially must take judicial notice of —
(a) the signature of a person who is, or was, the Director, the Registrar, a conciliator or an arbitrator; and
(b) the fact that a person referred to in paragraph (a) is or was the Director, the Registrar, a conciliator or an arbitrator, as the case requires; and
(c) the common seal of WorkCover WA affixed to a document.
(2) If the common seal of WorkCover WA is affixed to a document, a court or person acting judicially must presume that it was properly affixed unless the contrary is proved.
534. Protection from liability for performance of functions
(1) An action in tort does not lie against a person for anything that the person has done in good faith in the performance or purported performance of a function under this Act.
(2) The Minister and the State are also relieved of any liability that either of them might otherwise have had for a person having done anything as described in subsection (1).
(3) The protection given by this section applies even though the thing done as described in subsection (1) may have been capable of being done whether or not this Act had been enacted.
(4) In this section, a reference to the doing of anything includes a reference to an omission to do anything.
535. Protection and immunity of conciliators, arbitrators and persons involved in proceedings
(1) A dispute resolution authority has, in the performance of their functions of a dispute resolution authority, the same protection and immunity as a judge of the Supreme Court has in the performance of the functions of a judge.
(2) A person representing a party in a proceeding before a dispute resolution authority has the same protection and immunity as a legal practitioner has in representing a party in proceedings in the Supreme Court.
(3) A party to a proceeding before a dispute resolution authority has the same protection and immunity as a party to proceedings in the Supreme Court.
(4) A person appearing as a witness in a proceeding before a dispute resolution authority has the same protection and immunity as a witness has in proceedings in the Supreme Court.
(5) To the extent that this section is inconsistent with anything expressly stated in another provision of this Act, this section does not apply.
536. Protection for compliance with this Act
(1) No civil or criminal liability attaches to a person for compliance, or purported compliance, in good faith, with a requirement of this Act.
(2) In particular, if a person produces a document or other thing as required under this Act, no civil liability attaches to the person for producing the document or thing, whether the liability would arise under a contract or otherwise.
(3) This section is in addition to section 505.
537. Protection from liability for publishing decision
No action or proceeding, civil or criminal, lies against the State, against a Minister or against a person employed or engaged by the State, in respect of the printing or publishing of a transcript of a proceeding before a dispute resolution authority or a decision, or reasons for a decision, of a dispute resolution authority.
538. General maximum and other adjustable amounts
(1) For the purposes of this Act, the general maximum amount is $243 991.
$243 991 is the prescribed amount under the Workers’ Compensation and Injury Management Act 1981 on the date of introduction into Parliament of the Bill for this Act. The amount may be updated under section 566.
(2) For the purposes of this section, each of the following amounts is an adjustable amount —
(a) the general maximum amount;
(b) the maximum weekly rate of income compensation prescribed for the purposes of section 53;
(c) the maximum board and lodging daily amount prescribed for the purposes of section 58;
(d) the maximum amount for provision of a wheelchair or similar appliance prescribed for the purposes of section 86;
(e) a rate specified by the regulations under section 90(4) for an expense referred to in section 90;
(f) the eligible dependent child allowance prescribed for the purposes of section 134;
(g) the funeral expenses maximum amount prescribed for the purposes of section 135;
(h) the maximum damages amount for less than 25% impairment prescribed for the purposes of section 424.
(3) The regulations may vary an adjustable amount, including by providing for the periodic variation of an adjustable amount in accordance with a specified methodology (an adjustment methodology).
(4) The regulations may provide for different adjustment methodologies for different adjustable amounts.
(5) If, for a particular period, variation under the regulations of an adjustable amount would reduce the amount, the amount must not be varied for the period.
539. Regulations
(1) The Governor may make regulations prescribing matters —
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for giving effect to this Act.
(2) Without limiting subsection (1), the regulations may provide for the following —
(a) matters of general or special application, which may apply to both employers and workers, for the prevention or minimising of occurrences of injuries in employment or places of employment;
(b) the imposition, payment and recovery of fees and charges.
(3) The regulations may provide —
(a) that contravention of a regulation is an offence; and
(b) for the offence to be punishable on conviction by a penalty not exceeding a fine of $5 000.
(4) A regulation may require any matter or thing to be verified by statutory declaration.
540. Regulations may adopt codes or legislation
code means a code, standard, rule, specification or other document, published in or outside Australia, that does not by itself have legislative effect in this State;
subsidiary legislation includes rules, regulations, instructions, local laws and by‑laws.
(2) The regulations may adopt, either wholly or in part or with modifications —
(a) any code; or
(b) any subsidiary legislation made, determined or issued under any other Act or under any Act of the Commonwealth or a State.
(3) The adoption may be by —
(a) incorporating the code or subsidiary legislation in the regulations; or
(b) incorporating the code or subsidiary legislation by reference.
(4) If the regulations adopt a code or subsidiary legislation by reference, then, unless the regulations specify that a particular text is adopted, the code or subsidiary legislation is adopted as amended from time to time.
(5) If the regulations adopt a code or subsidiary legislation by reference, the CEO must ensure that a copy of the code or subsidiary legislation, including any amendments made to it from time to time that have been adopted, is —
(a) published on the WorkCover WA website; or
(b) made available for inspection free of charge by members of the public during normal office hours at the office of WorkCover WA.
541. Review of Act
(1) The Minister must review the operation and effectiveness of this Act, and prepare a report based on the review —
(a) as soon as practicable after the 5th anniversary of the day on which this section comes into operation; and
(b) after that, at intervals of not more than 5 years.
(2) The Minister must cause the report to be laid before each House of Parliament as soon as practicable after it is prepared, but not later than 12 months after the 5th anniversary or the expiry of the period of 5 years, as the case may be.
Part 14 — Savings and transitional provisions
542. Terms used
commencement day means the day on which section 615 comes into operation;
former Act means the Workers’ Compensation and Injury Management Act 1981;
pending matter means a claim, assessment, proceeding, dispute or other matter commenced or arising under the former Act before commencement day that is pending, current or continuing under the former Act immediately before commencement day.
543. Expressions used in former Act
An expression used in this Part, to the extent that the expression is referrable to a liability for compensation or damages that arose before commencement day, has the meaning that the expression had in the former Act.
544. Transitional regulations
publication day, for regulations made under subsection (2), means the day on which those regulations are published in accordance with the Interpretation Act 1984 section 41;
specified means specified or described in regulations made under subsection (2);
transitional matter —
(a) means a matter that needs to be dealt with for the purpose of effecting the transition required because of the enactment of this Act; and
(b) includes a saving or application matter.
(2) If there is no sufficient provision in this Part for dealing with a transitional matter, the Governor may make regulations prescribing matters —
(a) required to be prescribed for the purpose of dealing with the transitional matter; or
(b) necessary or convenient to be prescribed for the purpose of dealing with the transitional matter.
(3) Regulations made under subsection (2) may provide that specified provisions of this Act —
(a) do not apply to or in relation to a specified matter; or
(b) apply with specified modifications to or in relation to a specified matter.
(4) If regulations made under subsection (2) provide that a specified state of affairs is taken to have existed, or not to have existed, on and after a day that is earlier than publication day for those regulations but not earlier than the day on which the relevant provision of this Act came into operation, the regulations have effect according to their terms.
(5) If regulations made under subsection (2) contain a provision referred to in subsection (4), the provision does not operate so as —
(a) to affect in a manner prejudicial to a person (other than the State or an authority of the State) the rights of that person existing before publication day for those regulations; or
(b) to impose liabilities on a person (other than the State or an authority of the State) in respect of an act done or omission made before publication day for those regulations.
545. Interpretation Act 1984 not affected
This Part is in addition to the provisions of the Interpretation Act 1984 and, unless the contrary intention appears, does not limit or otherwise affect the operation of those provisions.
546. Act operates as continuation of former Act
(1) This Act operates as a continuation of the former Act and a pending matter continues and must be dealt with under this Act as if it arose under this Act.
(2) Anything commenced under a provision of the former Act for the purposes of or in connection with a pending matter is taken to have been commenced, and is to continue, under the corresponding provision of this Act.
(3) Any act, matter or thing done or omitted to be done under or for the purposes of a provision of the former Act before commencement day, to the extent that it has any current or continuing force, significance or effect in connection with a pending matter, is taken to have been done or omitted to be done under or for the purposes of the corresponding provision of this Act.
(4) A reference in this Act to something done or omitted to be done under or for the purposes of a provision of this Act includes a reference to something done or omitted to be done under or for the purposes of the corresponding provision of the former Act.
547. References to former Act
(1) Unless the context otherwise requires, a reference in a document or instrument to the former Act includes a reference to this Act.
(2) Unless the context otherwise requires, a reference in a document or instrument to a provision of the former Act (the old provision) includes, if there is a provision of this Act (the new provision) that corresponds to the old provision, a reference to the new provision.
548. Directions about corresponding provisions and pending matters
(1) The CEO may give directions that —
(a) determine any question as to which provision of an Act corresponds to a provision of another Act for the purposes of this Part;
(b) determine that a reference in this Part to the corresponding provision of an Act is to be read as a reference to a specified provision of the Act;
(c) modify the operation of a provision of this Act in respect of a pending matter to make appropriate provision for differences between this Act and the former Act;
(d) modify the effect of anything done or commenced under the former Act in respect of a pending matter to ensure that it has an appropriate effect under this Act.
(2) Directions under subsection (1) have effect according to their terms.
549. Effect of Act on validity of past acts
This Act does not affect the validity of anything done or omitted to be done under the former Act and in particular does not —
(a) affect the validity of any reduction, suspension or cessation of compensation payments under the former Act; or
(b) operate to revive any liability for or entitlement to the payment of compensation reduced, suspended, ceased, redeemed or extinguished under the former Act.
550. Application of Act to existing injuries and other matters
Subject to this Part, this Act extends to —
(a) an injury suffered by a worker before commencement day; and
(b) an employer’s liability to pay compensation or damages to a worker who suffers an injury where that liability arises before commencement day; and
(c) the death of a worker before commencement day; and
(d) an insurance policy issued before commencement day.
551. Pending claims under former Act
(1) A claim for weekly payments of compensation made under the former Act (a former Act claim) that was not decided under the former Act before commencement day must be dealt with as a claim for income compensation under this Act as if made under this Act.
(2) A former Act claim is considered to have been decided under the former Act when —
(a) liability for the weekly payments claimed was accepted under the former Act by the insurer or employer; or
(b) an arbitrator determined under the former Act that the worker is entitled to the weekly payments claimed; or
(c) the worker became entitled under section 57A(5) or 57B(4) of the former Act to the weekly payments claimed (as a result of a failure by the insurer to comply with section 57A(3) or 57B(2) of the former Act).
(3) If a former Act claim was decided under the former Act in the circumstances described in subsection (2)(c), liability for the weekly payments claimed is taken to have been accepted under the former Act by the insurer or employer and any application for a determination under section 57A(6) or 57B(5) of the former Act in respect of the claim that is pending immediately before commencement day is terminated.
(4) If liability for a former Act claim that must be dealt with under this Act was disputed by the insurer or employer in respect of all or any of the weekly payments claimed (other than a dispute the subject of a determination to which subsection (3) applies) and the dispute was not determined under the former Act before commencement day, the dispute must be dealt with under this Act.
(5) If a liability decision on a former Act claim that must be dealt with under this Act was deferred before commencement day, this Act applies to the claim as if a deferred decision notice for the claim had been given on commencement day.
(6) For the purposes of subsection (5), a liability decision on a former Act claim is considered to have been deferred before commencement day if notice was given under section 57A(3)(c) or 57B(2)(c) of the former Act before commencement day that a decision as to whether or not liability is to be accepted is not able to be made within the time allowed by the relevant subsection.
(7) This section does not affect any entitlement to compensation that arises under the former Act before commencement day.
552. Pending matters exclusion of injury: reasonable administrative action
If a pending matter relates to a disease caused by stress that is not an injury under this Act because of the operation of section 7 —
(a) section 7 does not apply in respect of the pending matter; and
(b) the definition of injury in section 5 of the former Act continues to apply in respect of the pending matter.
553. Firefighters
Section 11 does not apply to an injury by a firefighter disease suffered before 13 November 2013.
13 November 2013 is the day on which the Workers’ Compensation and Injury Management Amendment Act 2013 section 4 came into operation.
554. Jockeys
For the purposes of section 15, if the injury occurred before 14 December 2012, the employer in the circumstances to which section 15(3)(b) applies is Racing and Wagering Western Australia and not the licensed trainer for whom the person was engaged.
14 December 2012 is the day on which the Workers’ Compensation and Injury Management Amendment (Jockeys) Act 2012 section 4 came into operation.
Division 2 — Compensation
555. Continuation of entitlement to compensation
(1) An entitlement to compensation under the former Act (being an entitlement that a person has immediately before commencement day) becomes an entitlement to compensation under this Act.
(2) Compensation payable on or after commencement day in respect of an injury suffered before commencement day is payable in accordance with this Act and not the former Act.
(3) Compensation paid under the former Act is taken to have been paid under this Act.
556. Calculation of income compensation commenced as weekly payments under former Act
(1) If weekly payments to an injured worker had commenced under the former Act before commencement day, the amount of any payments to the worker of income compensation for any period of incapacity on or after commencement day must be calculated in the manner provided by the former Act for the calculation of weekly payments.
(2) This section applies only if liability to pay weekly payments was accepted by the insurer or employer or determined by an arbitrator before commencement day.
557. Caps on compensation
compensation cap means any limit on the amount of compensation payable or of a particular form of compensation payable.
(2) If a compensation cap under the former Act was applicable to an entitlement to compensation under the former Act and the entitlement had been exhausted before commencement day —
(a) the entitlement remains subject to the compensation cap under the former Act; and
(b) the entitlement is not subject to a compensation cap under this Act; and
(c) this Act does not renew, revive or increase the entitlement to compensation.
(3) If a compensation cap under the former Act was applicable to an entitlement to compensation under the former Act but the entitlement had not been exhausted before commencement day —
(a) the entitlement becomes subject to the corresponding compensation cap under this Act with compensation paid under the former Act counted as compensation paid under this Act; and
(b) the entitlement is not subject to the compensation cap under the former Act.
(4) An entitlement to compensation under the former Act to which a compensation cap under the former Act was applicable is considered to have been exhausted when the amount of compensation paid in respect of the entitlement before commencement day equals or exceeds the amount of that compensation cap under the former Act (without regard to any amount of compensation that may have become payable but that was unpaid immediately before commencement day).
(5) For the purposes of this section, the compensation cap under the former Act for compensation under clause 17(1) of Schedule 1 to the former Act is the amount that is 30% of the prescribed amount under the former Act and does not include any increase in that amount resulting from an order of an arbitrator or an agreement by the insurer or employer to increase that amount.
(6) For the purposes of the application of this section to the compensation cap in respect of compensation under clause 17(1) of Schedule 1 to the former Act, compensation paid under the former Act for expenses incurred in respect of first aid and ambulance or other services to carry the worker to hospital or another place for medical treatment must not be counted as compensation paid under this Act.
Compensation under section 85 for first aid and emergency transport expenses (which under the former Act was subject to a compensation cap as part of medical and related expenses) is not subject to a compensation cap under this Act.
(7) This Act does not renew or revive a liability for compensation under the former Act that was discharged under the former Act and does not renew or revive an entitlement to compensation under the former Act that was extinguished under the former Act.
558. Compensation paid or payable under former Act
A reference in this Act to compensation paid or payable under this Act includes a reference to compensation paid or payable under the former Act.
559. Provisional payments of compensation
An employer is not required to make provisional payments of compensation in respect of a claim for compensation made before commencement day unless the claim is required by section 551 to be dealt with under this Act as if made under this Act.
560. Vocational rehabilitation compensation
A reference in section 95 to workplace rehabilitation expenses compensation paid in respect of a worker’s injury includes a reference to compensation paid under the former Act for vocational rehabilitation in respect of the injury.
561. Lump sum compensation for permanent impairment
A reference in section 102 to compensable injury includes a personal injury by accident in respect of which compensation for permanent impairment under Part III Division 2 or 2A of the former Act has been paid or is payable to the worker.
562. Noise‑induced hearing loss
(1) A reference in Part 2 Division 8 to noise‑induced hearing loss compensation paid to a worker includes a reference to compensation received by the worker under the former Act or the Workers’ Compensation Act 1912 for noise‑induced hearing loss.
(2) A reference in Part 2 Division 8 to hearing loss and assessed NIHL of a worker includes a reference to hearing loss and noise‑induced hearing loss that the worker has suffered as ascertained and measured in accordance with Schedule 7 to the former Act.
563. Compensation for death of worker before 1 July 2018
If the death of a worker occurred before 1 July 2018 —
(a) Part 2 Division 10 does not apply in respect of the death of the worker; and
(b) the former provisions, as defined in clause 9 of Schedule 8 to the former Act, apply in respect of the death as if those provisions were still in force; and
(c) the child’s allowance that a person is entitled to receive under the former provisions as applied by paragraph (b) is the eligible dependent child allowance under section 134 of this Act.
1 July 2018 is the day on which the Workers’ Compensation and Injury Management Amendment Act 2018 section 6 came into operation.
564. When entitlement to income compensation ceases due to age
(1) This section applies to the entitlement of a worker to income compensation for an injury if —
(a) the injury occurred before 1 October 2011; and
(b) the worker’s entitlement to weekly payments of compensation under the former Act had not ceased under section 56 of the former Act before commencement day.
1 October 2011 is the day on which the Workers’ Compensation and Injury Management Amendment Act 2011 section 88 came into operation.
(2) The entitlement of the worker to income compensation in respect of the injury ceases on the worker attaining the age of 65 years.
565. Compensation for AIDS
Section 104 does not apply in respect of the contraction of AIDS by a worker if the accident by which the worker became infected with HIV occurred before 14 November 2005.
14 November 2005 is the day on which the Workers’ Compensation Reform Act 2004 section 21 came into operation.
566. Updating of general maximum amount
If the prescribed amount under the former Act that applies immediately before commencement day (the prescribed amount before commencement) is different from the amount of $243 991 specified as the general maximum amount in section 538, the prescribed amount immediately before commencement day replaces the amount of $243 991 as the amount specified as the general maximum amount in section 538.
$243 991 is the prescribed amount under the former Act on the date of introduction into Parliament of the Bill for this Act. This section provides for that amount to be updated to reflect any change in the prescribed amount under the former Act that occurs between introduction of the Bill for this Act and commencement day. This section does not prevent subsequent variation by regulation of the general maximum amount as provided by section 538.
Division 3 — Injury management
567. Return to work programs established under s. 155C of former Act
A return to work program established in accordance with section 155C of the former Act and in operation immediately before commencement day is taken to have been established in accordance with section 160 of this Act.
568. Employer’s obligation to make position or suitable duties available
(1) Sections 166, 167 and 168 do not apply in respect of an injury occurring before commencement day.
(2) Sections 84AA and 84AB of the former Act continue to apply in respect of an injury occurring before commencement day as if those sections were still in force.
569. Approved workplace rehabilitation providers
(1) A person who holds an approval as a vocational rehabilitation provider that is in force under section 156 of the former Act immediately before commencement day is taken to have been granted an approval as a workplace rehabilitation provider under section 173(1) of this Act and is subject to this Act accordingly.
(2) The approval is taken to have been granted to remain in force indefinitely unless WorkCover WA converts the approval by a direction under section 175(4) to an approval granted for a fixed period specified in the direction.
570. Vocational rehabilitation
A vocational rehabilitation service in respect of an injured worker in operation immediately before commencement day continues in operation under this Act as if it were the corresponding workplace rehabilitation service.
Division 4 — Dispute resolution
571. Terms used
appropriate official means —
(a) the Director in relation to matters concerning conciliation or any function of the Director under this Act or the former Act; or
(b) the Registrar in relation to matters concerning arbitration;
dispute proceedings means proceedings before a conciliator, arbitrator or the District Court commenced before commencement day in respect of a dispute under the former Act;
pending dispute decision means an order or direction under the former Act in connection with pending dispute proceedings;
pending dispute proceedings means dispute proceedings that are pending immediately before commencement day;
transitional direction means a direction under section 576.
572. Disputes to which Act applies
This Act applies to a dispute arising before, on or after commencement day, including a dispute arising on or after commencement day about a matter arising under the former Act.
573. Continuity of conciliation and arbitration services
(1) The Conciliation Service under this Act is a continuation of the Conciliation Service under the former Act.
(2) The Arbitration Service under this Act is a continuation of the Arbitration Service under the former Act.
(3) The person holding office as Director under the former Act immediately before commencement day is taken to have been designated as the Director under this Act on commencement day.
(4) The person holding office as Registrar under the former Act immediately before commencement day is taken to have been designated as the Registrar under this Act on commencement day.
(5) A person who is a conciliation officer under the former Act immediately before commencement day is taken to have been designated as a conciliator under this Act on commencement day.
(6) A person who is an arbitrator under the former Act immediately before commencement day is taken to have been designated as an arbitrator under this Act on commencement day.
574. Conciliation rules, arbitration rules and practice notes
(1) The person holding office as Director under the former Act may, before commencement day and despite section 381 not having commenced, make conciliation rules for the purposes of that section.
(2) The conciliation rules —
(b) are taken, for the purposes of this Act, to be made under section 381.
(3) The person holding office as Registrar under the former Act may, before commencement day and despite section 382 not having commenced, make arbitration rules for the purposes of that section.
(4) The arbitration rules —
(b) are taken, for the purposes of this Act, to be made under section 382.
(5) The person holding office as Director under the former Act may, before commencement day and despite section 384 not having commenced, issue conciliation practice notes under that section.
(6) The conciliation practice notes —
(b) are taken, for the purposes of this Act, to be made under section 384.
(7) The person holding office as Registrar under the former Act may, before commencement day and despite section 384 not having commenced, issue arbitration practice notes under that section.
(8) The arbitration practice notes —
(b) are taken, for the purposes of this Act, to be made under section 384.
(9) This Act and the operation of the Interpretation Act 1984 section 25 are modified so far as is necessary to give effect to this section.
575. Pending dispute proceedings
(1) Pending dispute proceedings must continue and be dealt with as dispute proceedings under this Act.
(2) Pending dispute proceedings must be dealt with under this Act in accordance with the conciliation rules, arbitration rules and regulations in force under the former Act immediately before commencement day unless a transitional direction otherwise provides.
576. Transitional directions
(1) The appropriate official may give directions (transitional directions) for or with respect to any of the following —
(a) the modification of provisions of this Act in their application to pending dispute proceedings to facilitate the appropriate resolution of the disputes concerned;
(b) varying the terms or effect of a pending dispute decision to ensure that the pending dispute decision has appropriate operation and effect for the purposes of this Act;
(c) varying the operation of the conciliation rules, arbitration rules and regulations in force under the former Act in their application to pending dispute proceedings dealt with under this Act;
(d) quashing a pending dispute decision that has no appropriate operation or effect for the purposes of this Act;
(e) terminating a pending dispute proceeding if resolution of the dispute concerned will have no appropriate operation or effect for the purposes of this Act.
(2) Transitional directions may be given to operate generally or in a particular case.
(3) Transitional directions have effect according to their terms.
577. Dispute decisions under former Act
An order or direction of an arbitrator or conciliation officer made or given under a provision of the former Act and in force immediately before commencement day is taken to have been made or given by the arbitrator or conciliator under the corresponding provision of this Act.
578. Registration of independent agents
transitioned independent agent means a person who, immediately before commencement day, was registered as an agent as provided by section 277 of the former Act on the sole basis that the person acts or proposes to act as an independent agent.
(2) Regulations must provide for a scheme for the registration of independent agents that is in force for a period of 2 years beginning on commencement day (the transition period).
(3) On commencement day, a transitioned independent agent becomes registered as an independent agent under the regulations and is subject to this Act accordingly.
(4) A person is not entitled to registration as an independent agent under the regulations unless the person is a transitioned independent agent.
(5) At the end of the transition period —
(a) the scheme for the registration of independent agents is terminated; and
(b) each person who was registered under the regulations as an independent agent immediately before the end of the transition period ceases to be so registered.
(6) Regulations for the purposes of this section may include provision for or with respect to —
(a) regulating the conduct of registered independent agents in the provision of agent services (including by setting standards of conduct and limiting the agent services that are authorised to be provided by registered independent agents); and
(b) imposing conditions on the registration of independent agents, either generally or in a particular case; and
(c) authorising the doing of legal work by registered independent agents in the course of providing agent services subject to any limitations imposed by the regulations; and
(d) the circumstances in which, and the procedures by which, a person’s registration as an independent agent may be suspended or cancelled; and
(e) applications for review by the State Administrative Tribunal of decisions suspending or cancelling registration or imposing conditions on registration as an independent agent; and
(f) authorising WorkCover WA to conduct audits and investigations (compliance audits and investigations) for the purpose of ensuring compliance by registered independent agents with this Act, the regulations, the conditions of registration, the conciliation rules and the arbitration rules, including standards of conduct set by the regulations; and
(g) requiring a registered independent agent to provide information or documents to WorkCover WA for the purposes of any compliance audit or investigation by WorkCover WA; and
(h) requiring a registered independent agent to obtain any release or consent from any client of the agent to authorise the provision of information or documents to WorkCover WA for the purposes of any compliance audit or investigation by WorkCover WA; and
(i) requiring registered independent agents to have professional indemnity insurance; and
(j) transitional arrangements for the operation of this Act in respect of the provision by a transitioned independent agent after the end of the transition period of agent services commenced to be provided before the end of the transition period; and
(k) any other matter necessary or convenient to be prescribed for or in connection with the registration of independent agents for the purposes of this Act.
(7) The doing of legal work by a registered independent agent in the course of providing agent services and as authorised by the regulations does not constitute engaging in legal practice for the purposes of the Legal Profession Uniform Law Application Act 2022.
579. Costs determination
(1) The Costs Committee established by section 269 of the former Act may, before commencement day, make a costs determination for the purposes of Part 6 Division 9 Subdivision 3.
(2) The costs determination is taken to be a costs determination made under section 405(1).
(3) Sections 406 and 407 (except section 407(3)) apply in relation to the making, approval and effect of the costs determination as if —
(a) those sections had come into operation on the day after the day on which this Act receives the Royal Assent; and
(b) references in those sections to the Costs Committee were references to the Costs Committee established by section 269 of the former Act.
(4) An approved costs determination published in the Gazette under section 407 as applied by subsection (3) of this section before commencement day takes effect on and from commencement day.
(5) If an approved costs determination is not in effect on commencement day under section 407 as applied by subsections (3) and (4) of this section, the costs determination in effect immediately before commencement day under section 273 of the former Act is taken to be an approved costs determination for the purposes of Part 6 Division 9 Subdivision 3 on and from commencement day until an approved costs determination takes effect under section 407.
(6) This Act and the operation of the Interpretation Act 1984 section 25 are modified so far as is necessary to give effect to this section.
Division 5 — Medical assessment
580. Approved permanent impairment assessors
(1) A medical practitioner who was an approved medical specialist under the former Act immediately before commencement day is taken to have been approved under section 193(1) of this Act as an approved permanent impairment assessor and is subject to this Act accordingly.
(2) The approval is taken to have been granted to remain in force indefinitely unless WorkCover WA converts the approval by a direction under section 196(4) to an approval granted for a fixed period specified in the direction.
581. Medical assessments under former Act
(1) An assessment under a provision of the former Act by an approved medical specialist of a worker’s degree of impairment is taken to be an assessment under the corresponding provision of this Act by an approved permanent impairment assessor of the worker’s degree of permanent impairment.
(2) A determination of a question by a medical panel under section 38 or 93R of the former Act is taken to be a determination of that question by a Dust Disease Medical Panel under this Act.
Division 6 — Insurer and self‑insurer insolvency and uninsured liabilities
582. Claims for uninsured liabilities
Section 267 does not apply if —
(a) the action resulting in the award of damages was brought before 1 October 2011; or
(b) before 1 October 2011 a claim for compensation under the former Act was made in respect of the same injury.
1 October 2011 is the day on which the Workers’ Compensation and Injury Management Amendment Act 2011 section 113 came into operation.
583. Amounts payable from DI Fund for uninsured liabilities
(1) Any amount payable from the General Account under section 174 of the former Act that is unpaid immediately before commencement day is payable from the DI Fund under the corresponding provision of this Act.
(2) Any amount paid from the General Account under Part X of the former Act that is recoverable under a provision of the former Act but not recovered immediately before commencement day is recoverable under the corresponding provision of this Act for crediting to the DI Fund.
584. Insurer and self‑insurer insolvency
In Part 5 Division 8 —
(a) a reference to a workers compensation policy includes a reference to an employer’s policy as defined in the Employers’ Indemnity Supplementation Fund Act 1980 section 3; and
(b) a reference to a self‑insurer includes a reference to an employer or a member of a group of employers exempted under section 164 of the former Act; and
(c) a reference to a licensed insurer includes a reference to an approved insurance office under the former Act; and
(d) a reference to a requirement to hold a workers compensation policy includes a reference to a requirement to hold a policy of insurance under the former Act.
585. EIS Fund
EIS Fund means the Fund under the Employers’ Indemnity Supplementation Fund Act 1980;
relevant Act means the Employers’ Indemnity Supplementation Fund Act 1980 or the Workers’ Compensation and Injury Management (Acts of Terrorism) Act 2001.
(2) On commencement day the EIS Fund is closed and any amount standing to the credit of the EIS Fund immediately before commencement day must be credited to the DI Fund.
(3) Any amount payable from the EIS Fund under a provision of a relevant Act that is unpaid immediately before commencement day is payable from the DI Fund under the corresponding provision of this Act.
(4) Any amount paid from the EIS Fund under a relevant Act that is recoverable under a provision of the relevant Act but not recovered immediately before commencement day is recoverable under the corresponding provision of this Act for crediting to the DI Fund.
586. Claims under EISF Act
EISF Act means the Employers’ Indemnity Supplementation Fund Act 1980.
(2) A claim under the EISF Act that is pending under that Act immediately before commencement day (a pending claim) must continue to be dealt with under that Act as if that Act were still in force.
(3) Any amount payable on or after commencement day in respect of a pending claim must be paid from the DI Fund.
(4) Section 280 extends to a payment made by the Insurance Commission in satisfaction of a claim under the EISF Act (including but not limited to a pending claim) as if the payment were a payment by WorkCover WA in satisfaction of a claim under Part 5 Division 8.
Division 7 — Settlement agreements
587. Settlement agreements under former Act
(1) Part III Division 7 of the former Act continues to apply to and in respect of a memorandum of an agreement received for registration as referred to in section 76 of the former Act but not registered under that section before commencement day.
(2) An agreement registered under section 76 of the former Act (including an agreement so registered pursuant to subsection (1)) is taken to have been registered under Part 2 Division 12 of this Act.
(3) Section 149 of this Act extends to an agreement entered into before commencement day.
Division 8 — Common law damages proceedings
588. Terms used
election means an election to retain the right to seek damages;
former common law provisions means Part IV of the former Act;
new common law provisions means Part 7 Divisions 1 to 4;
permanent impairment agreement means an agreement referred to in section 93L(2)(a) of the former Act;
permanent impairment assessment means an assessment referred to in section 93L(2)(b) of the former Act;
registered means registered by the Director.
589. Application of new common law provisions to existing claims
(1) The new common law provisions —
(a) extend to a cause of action that accrued before commencement day; but
(b) do not apply to proceedings for damages that were validly commenced before commencement day, except as provided by this section.
(2) The former common law provisions continue to apply to proceedings for damages that were validly commenced before commencement day, except as provided by this section.
(3) Part 7 Divisions 3 and 4 extend to proceedings for damages that were validly commenced before commencement day but that had not been finalised (by judgment, settlement or otherwise) before that day.
(4) Section 421 extends to a cause of action that accrued before commencement day even if the worker had not elected to retain the right to seek damages as referred to in section 93E of the former Act.
(5) Section 433 extends to an action for damages that was successful, within the meaning of that section, before commencement day.
(6) The Civil Liability Act 2002 section 13A, as in force immediately before section 626 of this Act comes into operation, continues to apply in respect of proceedings for damages to which the former common law provisions continue to apply as provided by this section.
(7) The Motor Vehicle (Third Party Insurance) Act 1943 section 3C, as in force immediately before section 680 of this Act comes into operation, continues to apply in respect of proceedings for damages to which the former common law provisions continue to apply as provided by this section.
590. Transitional arrangements for application of new common law provisions to existing claims
(1) The following provisions apply for the purposes of the application of Part 7 Division 2 in respect of a cause of action accruing before commencement day if proceedings on the cause of action had not been validly commenced before that day —
(a) an election made under the former common law provisions is taken to have been made under the new common law provisions;
(b) an election registered by the Director under the former common law provisions is taken to have been registered by the Director under the new common law provisions;
(c) a permanent impairment agreement or permanent impairment assessment as to a worker’s degree of permanent impairment that was made under the former common law provisions before commencement day is taken to be an assessment under the new common law provisions by an approved permanent impairment assessor or Dust Disease Medical Panel (whichever is appropriate) of the worker’s degree of permanent impairment;
(d) a permanent impairment agreement or permanent impairment assessment as to a worker’s degree of permanent impairment that was recorded by the Director under the former common law provisions before commencement day is taken to have been recorded by the Director under the new common law provisions as the supporting assessment for the worker’s election to retain the right to seek damages.
(2) For the purposes of the application of section 423 in respect of an election registered before commencement day, a reference in that section to the registration day is a reference to the day on which the election was registered under the former common law provisions.
591. Continuation of 1993 Scheme
Part IV Division 2 Subdivision 2 (1993 Scheme) of the former Act continues to apply, despite its repeal, to a cause of action to which that Subdivision applied pursuant to section 93CC of the former Act.
592. Dust disease actions accruing before 14 November 2005
Part 7 Division 2 extends to a cause of action that accrued before 14 November 2005 if the worker claims to be suffering a dust disease and on or after that date the worker’s degree of permanent impairment resulting from the dust disease was assessed as provided by section 93R of the former Act or settled by agreement.
Division 9 — Insurance
593. Insurance policies under former Act
former Act policy, in relation to an employer, means an insurance policy issued to the employer before commencement day for the purposes of, and in compliance with the requirements of, section 160 of the former Act when the policy was issued.
(2) A former Act policy is taken to insure the employer for the full amount of the following liabilities of the employer that arise in respect of employment during the period of insurance of the former Act policy —
(a) any liability of the employer that arises under this Act or the former Act to pay compensation or make any other payment in respect of an injury to or the death of a worker;
(b) any liability of the employer to pay damages in respect of an injury to or the death of a worker if the employer is liable to pay compensation under this Act or the former Act in respect of the injury or death, other than an injury to or the death of a deemed worker, as defined in section 200, of the employer.
(3) A reference in this Act to a workers compensation policy is, in relation to insurance at a time before commencement day, to be read as a reference to a former Act policy in force at that time.
(4) The repeal of the former Act does not affect the validity or operation of a former Act policy.
(5) Section 241 (which limits the circumstances in which an insurer is entitled to refuse indemnity under a workers compensation policy) extends to a refusal of indemnity under a former Act policy on or after commencement day, and for that purpose —
(a) a reference in that section to a workers compensation policy is taken to include a reference to a former Act policy; and
(b) a reference in that section to a licensed insurer includes a reference to an insurer under a former Act policy.
594. Failure to insure under former Act
Section 170 of the former Act continues to apply to and in respect of a failure referred to in that section that occurs before commencement day.
595. Underpaid premiums
Section 210 extends to the provision of premium information (as defined in that section) before commencement day that is relevant to calculation of the premium payable by an employer for a policy of insurance issued on or after commencement day.
596. Operation of policies issued by Insurance Commission
(1) A policy of insurance issued or renewed by the Insurance Commission as referred to in section 162 of the former Act and in force immediately before commencement day —
(a) continues in force on and from commencement day; but
(b) does not apply to a liability arising in respect of employment on or after commencement day.
A policy issued by the Insurance Commission under section 162 of the former Act covered liability for compensation for a disease of a kind referred to in section 151(a)(iii) of the former Act. For employment on or after commencement day liability for compensation for the disease is covered by a workers compensation policy issued by a licensed insurer.
(2) The operation of subsection (1) does not entitle the holder of a policy of insurance referred to in that subsection to any refund of premium paid in respect of the policy.
597. Licensed insurers
(1) An insurer who was an approved insurer under the former Act immediately before commencement day is taken to be a licensed insurer under this Act and is subject to this Act accordingly.
(2) The insurer is taken to have been granted an insurer licence to remain in force indefinitely unless WorkCover WA converts the licence by a direction under section 230(4) to an insurer licence granted for a fixed period specified in the direction.
(3) Sections 261(7) and 491(6) do not apply to an insurer who becomes a licensed insurer under this Act pursuant to this section.
Sections 261(7) and 491(6) provide that a licensed insurer is not required to pay a contribution to the DI Fund or the General Account for the financial year in which the insurer becomes a licensed insurer. This does not apply to approved insurers under the former Act who become licensed insurers under this section.
598. Self‑insurers
(1) An employer who is an employer or a member of a group of employers exempted under section 164 of the former Act immediately before commencement day is taken to be a self‑insurer under this Act and is subject to this Act accordingly.
(2) The employer is taken to have been granted a self‑insurer licence to remain in force indefinitely unless WorkCover WA converts the licence by a direction under section 230(4) to a self‑insurer licence granted for a fixed period specified in the direction.
(3) If an employer was a self‑insurer under the former Act because the employer belonged to a group of employers exempted under section 164 of the former Act —
(a) only 1 of the employers of the group is taken to have been granted a self‑insurer licence as provided by this section (being the employer chosen by WorkCover WA); and
(b) the self‑insurer licence is taken to have been granted on terms that extend the licence to the other employers of the group.
(4) Sections 261(7) and 491(6) do not apply to an employer who becomes a self‑insurer under this Act pursuant to this section.
Sections 261(7) and 491(6) provide that a self‑insurer is not required to pay a contribution to the DI Fund or the General Account for the financial year in which the self‑insurer became a self‑insurer. This does not apply to self‑insurers under the former Act who become self‑insurers under this section.
(5) Securities given to the State by a self‑insurer for the purposes of section 164 of the former Act and in force immediately before commencement day are taken to be a self‑insurer security provided by the self‑insurer for the purposes of section 250 of this Act.
599. Recommended premium rates
A recommended premium rate fixed under section 151 of the former Act and in force immediately before commencement day is taken to have been fixed under section 253 of this Act.
600. Appeals by employers
An appeal under section 154 of the former Act that is pending immediately before commencement day must continue and be dealt with as a review under section 255 of this Act.
601. Permission for insurer to exceed 75% premium loading
A request for permission under section 152 of the former Act that was not determined by WorkCover WA before commencement day lapses on commencement day.
602. Acts of terrorism
(1) If an order under the Workers’ Compensation and Injury Management (Acts of Terrorism) Act 2001 section 8 identifying an act of terrorism is in effect on the day on which section 616 comes into operation —
(a) the order continues to have effect as if it were a declaration under section 288; but
(b) except as provided in subsection (2) —
(i) the Workers’ Compensation and Injury Management (Acts of Terrorism) Act 2001 ceases to have effect in relation to injury attributable to the act of terrorism; and
(ii) Part 5 Division 9 applies to and in relation to compensation liability in respect of the act of terrorism.
(2) This section does not affect the operation of the Workers’ Compensation and Injury Management (Acts of Terrorism) Act 2001 in relation to any claim made or payment or reimbursement paid or payable under section 9 of that Act before the day on which section 616 comes into operation.
Division 10 — Administration
603. Term used: WorkCover Western Australia Authority
WorkCover Western Australia Authority means the body referred to in section 94 of the former Act.
604. Continuation of WorkCover Western Australia Authority
WorkCover WA established under section 445(1) is the same legal person as, and a continuation of, the WorkCover Western Australia Authority.
605. Board is continuation of governing body
governing body means the governing body established under section 95(1) of the former Act.
(2) The Board is a continuation of the governing body.
(3) The person who immediately before commencement day was the Chairman of the governing body continues in office under and subject to this Act as the chairperson of the Board and for that purpose is taken to have been appointed as chairperson of the Board for a term of office that is the remainder of the term of office for which the person was appointed as Chairman of the governing body.
(4) A person who immediately before commencement day was a nominee member of the governing body continues in office under and subject to this Act as an appointed member of the Board and for that purpose is taken to have been appointed as a member of the Board for a term of office that is the remainder of the term of office for which the person was appointed as a nominee member of the governing body.
606. Exercise of powers of Board before commencement day
(1) The governing body established under section 95(1) of the former Act may, before commencement day, exercise any power the Board will have under this Act on commencement day to make an instrument of a legislative or administrative character.
(2) The power may be exercised to the extent that it is necessary or expedient for the purpose of bringing this Act, or provisions of this Act, into operation, or giving full effect to this Act, or provisions of this Act, on or after commencement day.
(3) If a power to make an instrument is exercised under subsection (1), the instrument —
(a) takes effect on commencement day; and
(b) is taken for the purposes of this Act to have been made under the relevant power conferred on the Board on commencement day.
(4) This Act and the operation of the Interpretation Act 1984 section 25 are modified so far as is necessary to give effect to this section.
607. Continuation of accounts
(1) The WorkCover WA General Account referred to in section 488 is a continuation of the Workers’ Compensation and Injury Management General Account established under the former Act.
(2) The WorkCover WA Trust Account referred to in section 494 is a continuation of the Workers’ Compensation and Injury Management Trust Account established under the former Act.
608. Chief executive officer
(1) The person who immediately before commencement day was the chief executive officer of the WorkCover Western Australia Authority continues in office, under this Act and the Public Sector Management Act 1994, as the CEO.
(2) Subject to the Public Sector Management Act 1994, the person’s employment as the CEO continues to be governed by the terms and conditions of employment that applied immediately before commencement day to the person as the chief executive officer of the WorkCover Western Australia Authority.
(3) Except as otherwise agreed by the person referred to in subsection (1), the operation of that subsection does not —
(a) affect the person’s remuneration; or
(b) affect the person’s existing or accruing rights in respect of annual leave, long service leave, personal leave or any other leave; or
(c) affect any rights under a superannuation scheme; or
(d) interrupt the continuity of the person’s service.
609. Exercise of powers of CEO before commencement day
(1) The chief executive officer of the WorkCover Western Australia Authority may, before commencement day, exercise any power the CEO will have under this Act on commencement day to make an instrument of a legislative or administrative character.
(2) The power may be exercised to the extent that it is necessary or expedient for the purpose of bringing this Act, or provisions of this Act, into operation, or giving full effect to this Act, or provisions of this Act, on or after commencement day.
(3) If a power to make an instrument is exercised under subsection (1), the instrument —
(a) takes effect on commencement day; and
(b) is taken for the purposes of this Act to have been made under the relevant power conferred on the CEO on commencement day.
(4) This Act and the operation of the Interpretation Act 1984 section 25 are modified so far as is necessary to give effect to this section.
610. Other staff
(1) A person who immediately before commencement day was a public service officer appointed under the Public Sector Management Act 1994 Part 3 for the purposes of section 295(2) of the former Act is taken to be a public service officer appointed under the Public Sector Management Act 1994 Part 3 for the purposes of section 479(1) of this Act on the same terms and conditions that applied to the person immediately before commencement day.
(2) A person who immediately before commencement day was engaged by the WorkCover Western Australia Authority under the Public Sector Management Act 1994 section 100 is taken to have been engaged by WorkCover WA under that section on the same terms and conditions that applied to the person immediately before commencement day.
(3) Except as otherwise agreed by a person referred to in this section, the operation of this section does not —
(a) affect the person’s remuneration; or
(b) affect the person’s existing or accruing rights in respect of annual leave, long service leave, personal leave or any other leave; or
(c) affect any rights under a superannuation scheme; or
(d) interrupt the continuity of the person’s service.
611. Inspectors
(1) A person who immediately before commencement day was an inspector under the former Act is taken to be an inspector under this Act.
(2) A certificate issued under section 175A(4) of the former Act and held by an inspector referred to in subsection (1) immediately before commencement day is taken to be an identity card issued to that person under section 509(1).
612. Delegations
A delegation in force immediately before commencement day under a provision of the former Act is taken to be a delegation under the corresponding provision of this Act.
613. Guarantees of borrowings
The repeal of section 101B of the former Act does not affect the validity or continued operation of —
(a) any guarantee given by the Treasurer pursuant to the authority conferred by that section; and
(b) any security given by the WorkCover Western Australia Authority in connection with the guarantee.
614. General Account
(1) Any amount payable to the General Account under the former Act that was unpaid immediately before commencement day is payable to the General Account under this Act.
(2) Any amount payable from the General Account under the former Act that was unpaid immediately before commencement day is payable from the General Account under this Act.
(3) Any amount that is recoverable under the former Act for payment into the General Account under the former Act that was not recovered before commencement day is recoverable under this Act for payment into the General Account under this Act.
(4) There is authorised to be paid from the General Account to the DI Fund the amount WorkCover WA may determine to be the amount representing the total amount of the liabilities of the General Account under the former Act that remain unsatisfied immediately before commencement day in respect of payments that will be required to be made from the DI Fund on or after commencement day.
(5) This section is subject to section 583.
Part 15 — Repeals and consequential and related amendments
Division 1 — Acts repealed
615. Workers’ Compensation and Injury Management Act 1981 repealed
The Workers’ Compensation and Injury Management Act 1981 is repealed.
616. Workers’ Compensation and Injury Management (Acts of Terrorism) Act 2001 repealed
The Workers’ Compensation and Injury Management (Acts of Terrorism) Act 2001 is repealed.
The Employers Indemnity Policies (Premium Rates) Act 1990 is repealed.
618. Employers’ Indemnity Supplementation Fund Act 1980 repealed
The Employers’ Indemnity Supplementation Fund Act 1980 is repealed.
619. Waterfront Workers (Compensation for Asbestos Related Diseases) Act 1986 repealed
The Waterfront Workers (Compensation for Asbestos Related Diseases) Act 1986 is repealed.
Division 2 — Subsidiary legislation repealed
620. Workers’ Compensation and Injury Management Regulations 1982 repealed
The Workers’ Compensation and Injury Management Regulations 1982 are repealed.
621. Workers’ Compensation and Injury Management (Scales of Fees) Regulations 1998 repealed
The Workers’ Compensation and Injury Management (Scales of Fees) Regulations 1998 are repealed.
622. Workers’ Compensation Code of Practice (Injury Management) 2005 repealed
The Workers’ Compensation Code of Practice (Injury Management) 2005 is repealed.
623. Workers’ Compensation and Injury Management (Acts of Terrorism) (Final Day) Regulations 2002 repealed
The Workers’ Compensation and Injury Management (Acts of Terrorism) (Final Day) Regulations 2002 are repealed.
Division 3 — Acts amended
Subdivision 1 — Civil Liability Act 2002 amended
624. Act amended
This Subdivision amends the Civil Liability Act 2002.
625. Section 3A amended
In section 3A in the Table delete item 3 and insert:
| 3. | Damages to which the Workers Compensation and Injury Management Act 2023 Part 7 Division 2 applies and the class of damages referred to in section 416(a) of that Act. | Parts 1A, 1B, 1C, 1D, 1E and 2 (other than section 10A and Division 4). |
626. Section 13A replaced
Delete section 13A and insert:
13A. Restrictions on damages if payments received under CISS
CISS means the scheme provided for in the MVWA(CI) Act for the lifetime care and support of certain people catastrophically injured in motor vehicle accidents or workplace accidents;
interim participant means a person who under the MVWA(CI) Act is an interim participant in the CISS;
lifetime participant means a person who under the MVWA(CI) Act is a lifetime participant in the CISS;
MVWA(CI) Act means the Motor Vehicle and Workplace Accidents (Catastrophic Injuries) Act 2016;
treatment, care and support needs means —
(a) treatment, care and support needs, as defined in the MVWA(CI) Act section 3(1); and
(b) excluded treatment, care and support needs, as defined in that section.
(2) If a term used in this section (other than a term defined in subsection (1)) is given a meaning in the MVWA(CI) Act section 3(1), it has the same meaning in this section.
(3) Without limiting the definition of treatment, care and support needs in subsection (1), it includes gratuitous services of a domestic nature or gratuitous services relating to nursing and attendance provided, or to be provided, to a person by a member of the same household or family as the person.
(4) Subsection (5) applies to the awarding of damages in respect of a motor vehicle injury or workplace injury suffered by a person if the person is a participant in the CISS in respect of the injury.
(5) No damages can be awarded to the person in respect of any treatment, care and support needs of the person that relate to the motor vehicle injury or workplace injury and that —
(a) have arisen during the period in respect of which the person is a participant in the CISS; or
(b) will or may arise in future.
(6) If the person is an interim participant, it must be assumed for the purposes of subsection (5) that the person will become a lifetime participant in respect of the injury.
(7) Subsection (8) applies to the awarding of damages in respect of a motor vehicle injury or workplace injury suffered by a person if the person —
(a) has ceased to be an interim participant in respect of the injury; and
(b) has not become a lifetime participant in respect of the injury.
(8) No damages can be awarded to the person in respect of any treatment, care and support needs of the person that relate to the motor vehicle injury or workplace injury and that arose during the period in respect of which the person was an interim participant.
(9) Subsections (5) and (8) apply —
(a) whether or not the treatment, care and support needs are assessed treatment, care and support needs, as defined in the MVWA(CI) Act section 3(1); and
(b) whether or not the Commission is required to make a payment in respect of the treatment, care and support needs; and
(c) whether or not any treatment, care, support or service is provided on a gratuitous basis.
This Subdivision amends the Financial Management Act 2006.
628. Schedule 1 amended
(1) In Schedule 1 delete “WorkCover Western Australia Authority”.
(2) In Schedule 1 insert in alphabetical order:
WorkCover WA
Subdivision 3 — Fire and Emergency Services Act 1998 amended
629. Act amended
This Subdivision amends the Fire and Emergency Services Act 1998.
630. Section 36ZM amended
(1) In section 36ZM delete the following definitions:
compensable injury
date of injury
specified disease
(2) In section 36ZM insert in alphabetical order:
date of injury has the meaning given in section 36ZN(4);
firefighter disease has the meaning given in the WCIM Act section 11(1);
(3) In section 36ZM in the definition of injury delete “WC&IM Act section 5(1);” and insert:
WCIM Act section 6;
(4) In section 36ZM in the definition of medical practitioner delete “WC&IM Act section 5(1);” and insert:
WCIM Act section 5;
631. Section 36ZN replaced
Delete section 36ZN and insert:
36ZN. When firefighter disease taken to be injury caused while engaged in volunteer activities
firefighting employment has the meaning given in the WCIM Act section 11(1);
firefighting service means —
(a) firefighting employment; or
(b) volunteer service;
hazardous fire has the meaning given in the WCIM Act section 11(1);
hazardous firefighting employment has the meaning given in the WCIM Act section 11(1);
hazardous firefighting service means —
(a) hazardous firefighting employment; or
(b) volunteer service during which the volunteer attends hazardous fires at a rate at least equivalent to the rate of 5 hazardous fires per year;
qualifying period has the meaning given in the WCIM Act section 11(1);
volunteer service means service as a registered volunteer whose duties involve or involved responding to hazardous fires.
(2) An injury by a firefighter disease suffered by a volunteer is, for the purposes of this Part, taken to be caused to the volunteer while engaged in volunteer activities if all of the requirements for the application of this section to the injury as specified in subsection (3) are satisfied, unless the responsible agency proves that the injury was not caused to the volunteer while engaged in volunteer activities.
(3) The requirements for the application of this section to an injury by a firefighter disease suffered by a volunteer are as follows —
(a) when the injury is suffered the volunteer (whether or not still in firefighting service) has been in firefighting service for at least a period of, or periods in aggregate amounting to, the qualifying period for the disease;
(b) the responsible agency is satisfied that when the injury is suffered the volunteer has been in hazardous firefighting service for at least a period of, or periods in aggregate amounting to, the lesser of the following —
(i) 5 years;
(ii) the qualifying period for the disease;
(c) in the case of a cancer prescribed by regulations under the WCIM Act to be a firefighter disease, the conditions, if any, prescribed by the regulations for the cancer are satisfied.
(4) An injury by a firefighter disease is taken to have been suffered on whichever is the earlier of the following (the date of injury) —
(a) the day on which the injured person becomes totally or partially incapacitated for work by reason of the firefighter disease;
(b) the day on which the injured person is first diagnosed by a medical practitioner as having contracted the firefighter disease.
632. Section 36ZR amended
(1) In section 36ZR(2):
(a) delete “the WC&IM Act, an” and insert:
the WCIM Act, an
(b) delete paragraph (b)(ii) and insert:
(ii) in any other case, the volunteer’s pre‑injury weekly rate of income calculated in accordance with the WCIM Act section 54.
(2) Delete section 36ZR(3) and insert:
(3) The WCIM Act Part 2 Divisions 3, 4 and 5 apply (with the appropriate modifications) to an injury policy as if set out in the policy.
633. Section 36ZS amended
In section 36ZS(1)(a) delete “WC&IM Act if the injured volunteer were a worker and had suffered a compensable injury; and’’ and insert:
WCIM Act if the injured volunteer were a worker and had suffered an injury compensable under the WCIM Act; and
634. Section 36ZT amended
In section 36ZT(1):
(a) in paragraph (a) delete “specified disease; and” and insert:
firefighter disease; and
(b) in paragraph (b) delete “specified disease” and insert:
firefighter disease
635. Section 36ZU amended
(1) In section 36ZU(1) delete the definition of prescribed amount.
(2) In section 36ZU(1) insert in alphabetical order:
general maximum amount has the meaning given in the WCIM Act section 5;
(3) In section 36ZU(2) delete “prescribed amount” and insert:
general maximum amount
636. Section 36ZW amended
Delete section 36ZW(1) and insert:
(1) Subject to subsection (2), an amount payable under an injury policy or under section 36ZT or 36ZU is payable to the person or persons who would be entitled under the WCIM Act to receive it if the injured volunteer were a worker and had suffered an injury compensable under the WCIM Act, and that Act (with the appropriate modifications) applies accordingly.
637. Section 36ZX replaced
Delete section 36ZX and insert:
36ZX. Firefighter disease disputes
firefighter disease dispute means a dispute in connection with the application or operation of section 36ZN or 36ZT.
(2) The WCIM Act Part 6 applies (with the appropriate modifications) in relation to a firefighter disease dispute as if the firefighter disease dispute were a dispute, as defined in the WCIM Act section 303.
(3) Despite the WCIM Act section 355, for the purposes of an action for damages brought independently of this Act, a decision of an arbitrator in relation to a firefighter disease dispute is not final or binding on the parties to the dispute.
638. Other references to WC&IM Act replaced
In the provisions listed in the Table delete “WC&IM Act” (each occurrence) and insert:
| s. 36ZM (def. of appropriate changes) | s. 36ZO |
| s. 36ZP | s. 36ZQ(2) |
| s. 36ZR(1) | |
Notes:
The heading to amended section 36ZO is to read:
Application of provisions of WCIM Act under this Part
The heading to amended section 36ZP is to read:
Appropriate changes to WCIM Act
Subdivision 4 — Health Services Act 2016 amended
639. Act amended
This Subdivision amends the Health Services Act 2016.
640. Section 228 amended
(1) In section 228(1) in the definition of injury or hearing loss delete “section 22 of that Act;” and insert:
section 20 of that Act;
(2) In section 228(1) in the definition of WCIM Act delete “Workers’ Compensation and Injury Management Act 1981.” and insert:
*Workers Compensation and Injury Management Act 2023*.
(3) In section 228(2) delete “WCIM Act Part IV Division 2 —” and insert:
WCIM Act Part 7 Division 2 —
Note: The heading to amended section 228 is to read:
Modifications for purposes of Workers Compensation and Injury Management Act 2023 Part 7 Division 2
Subdivision 5 — Insurance Commission of Western Australia Act 1986 amended
641. Act amended
This Subdivision amends the Insurance Commission of Western Australia Act 1986.
642. Section 6 amended
In section 6:
(a) in paragraph (aa) delete “Motor Vehicle (Catastrophic Injuries) Act 2016” and insert:
*Motor Vehicle and Workplace Accidents (Catastrophic Injuries) Act 2016*
(b) delete paragraph (b) and insert:
(b) to undertake liability under policies of insurance issued by the Commission as required by the Workers’ Compensation and Injury Management Act 1981 section 163, being liabilities arising in respect of employment before the Workers Compensation and Injury Management Act 2023 section 615 comes into operation; and
(c) in paragraph (e)(i) delete “industrial diseases and”;
(d) in paragraph (e)(ii) delete “industrial diseases,”;
(e) in paragraph (e) delete “or (b)”.
643. Section 7 amended
Delete section 7(3) and insert:
(3) For the purposes of section 6(b), the Commission is taken to be a licensed insurer under the Workers Compensation and Injury Management Act 2023.
644. Section 15 amended
After section 15(2)(b) insert:
(ba) contributions credited to the Motor Vehicle and Workplace Accidents (Catastrophic Injuries) Fund as required under the Workers Compensation and Injury Management Act 2023 Part 5 Division 11; and
(bb) any amount credited to the Motor Vehicle and Workplace Accidents (Catastrophic Injuries) Fund under the Workers Compensation and Injury Management Act 2023 section 301; and
645. Section 16 amended
(1) In section 16(1)(b) delete ““Motor Vehicle (Catastrophic Injuries) Fund”; and” and insert:
“Motor Vehicle and Workplace Accidents (Catastrophic Injuries) Fund”; and
(2) In section 16(3) delete “Motor Vehicle (Catastrophic Injuries) Fund” and insert:
Motor Vehicle and Workplace Accidents (Catastrophic Injuries) Fund
646. Section 18 amended
In section 18(2) delete “Motor Vehicle (Catastrophic Injuries) Fund,” and insert:
Motor Vehicle and Workplace Accidents (Catastrophic Injuries) Fund,
647. Section 44 deleted
Delete section 44.
648. Section 49 inserted
At the end of Part V insert:
Transitional
The Motor Vehicle and Workplace Accidents (Catastrophic Injuries) Fund is a continuation of the Motor Vehicle (Catastrophic Injuries) Fund established and maintained under section 16(1)(b) before the day on which the Workers Compensation and Injury Management Act 2023 section 648 comes into operation.
Subdivision 6 — Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 amended
649. Act amended
This Subdivision amends the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947.
650. Section 6 amended
In section 6(2):
(a) delete “Workers’ Compensation and Injury Management Act 1981,” and insert:
*Workers Compensation and Injury Management Act 2023*,
(b) delete “section 15(3) of the Workers’ Compensation and Injury Management Act 1981 shall be deemed to apply with the necessary adaptations” and insert:
the Workers Compensation and Injury Management Act 2023 section 22 applies
Subdivision 7 — Law Reporting Act 1981 amended
651. Act amended
This Subdivision amends the Law Reporting Act 1981.
This Subdivision amends the Legal Profession Uniform Law Application Act 2022.
654. Section 134 amended
In section 134(2) delete “Workers’ Compensation and Injury Management Act 1981 section 5(1)” and insert:
*Workers Compensation and Injury Management Act 2023* section 5
Subdivision 9 — Limitation Act 2005 amended
655. Act amended
This Subdivision amends the Limitation Act 2005.
656. Section 55 amended
In section 55(2) delete “asbestos.” and insert:
asbestos or silica dust.
657. Section 56 amended
(1) In section 56(1)(a) delete “asbestos; and” and insert:
asbestos or silica dust; and
(2) Delete section 56(4) and insert:
(4) For the purposes of this section an injury to which this subsection applies must not be treated as significant unless —
(a) the parties to the proposed action have so agreed; or
(b) a medical panel constituted as described in the Workers’ Compensation and Injury Management Act 1981 section 36(1) —
(i) has determined that the degree of the disability assessed in accordance with section 93D(2) of that Act is 30% or more; or
(ii) has assessed that the worker’s degree of whole of person impairment evaluated as described in sections 146A and 146C of that Act (on or after 14 November 2005) is 25% or more;
or
(c) a Dust Disease Medical Panel constituted under the Workers Compensation and Injury Management Act 2023 section 124 has determined for the purposes of Part 7 Division 2 of that Act that the degree of permanent whole of person impairment resulting from the injury is at least 25%.
(4A) Subsection (4) applies to an injury that —
(a) before 14 November 2005, is a disability as defined in the Workers’ Compensation and Injury Management Act 1981; or
(b) on or after 14 November 2005 and before the commencement of the Workers Compensation and Injury Management Act 2023 Part 7 Division 2, is an injury as defined in the Workers’ Compensation and Injury Management Act 1981; or
(c) on or after the commencement of the Workers Compensation and Injury Management Act 2023 Part 7 Division 2, is an injury from employment for the purposes of that Act.
Note: The heading to amended section 56 is to read:
Asbestos or silica dust related diseases
658. Section 57 amended
In section 57(1) and (2) after “asbestos” insert:
or silica dust
Subdivision 10 — Local Government Act 1995 amended
659. Act amended
This Subdivision amends the Local Government Act 1995.
660. Section 5.49 replaced
Delete section 5.49 and insert:
5.49. Workers compensation insurance
eligible body means —
(a) a local government; or
(b) a regional local government; or
(c) a regional subsidiary; or
(d) any other body with functions relating to local government approved in writing by the Minister;
group self‑insurer licence has the meaning given in the WCIM Act section 200;
WCIM Act means the Workers Compensation and Injury Management Act 2023;
WorkCover WA has the meaning given in the WCIM Act section 5.
(2) WALGA must hold and manage a group self‑insurer licence under the WCIM Act for the benefit of —
(a) itself; and
(b) any eligible body to which, under the WCIM Act, the group self‑insurer licence extends.
(3) If an eligible body wishes to be added to or removed from the group self‑insurer licence, WALGA must apply to WorkCover WA to seek a variation in the group self‑insurer licence under the WCIM Act section 246(3).
(4) Nothing in this section limits the application of the WCIM Act.
The WCIM Act section 247 provides that each holder or former holder of a group self‑insurer licence is jointly and severally liable for any self‑insurer liability of an employer that is a liability in respect of an injury to or death of a worker that arose while the employer was a self‑insurer covered by the group self‑insurer licence.
Subdivision 11 — Motor Vehicle (Catastrophic Injuries) Act 2016 amended
661. Act amended
This Subdivision amends the Motor Vehicle (Catastrophic Injuries) Act 2016.
662. Long title amended
In the long title after “motor vehicle” insert:
**or workplace**
663. Section 1 amended
In section 1 delete “Motor Vehicle (Catastrophic Injuries) Act 2016.” and insert:
*Motor Vehicle and Workplace Accidents (Catastrophic Injuries) Act 2016*.
664. Section 3 amended
(1) In section 3(1) insert in alphabetical order:
worker has the meaning given in the Workers Compensation and Injury Management Act 2023 section 5;
workplace accident means an incident that results in a worker suffering a workplace injury;
workplace injury means an injury to a worker in respect of which compensation under the Workers Compensation and Injury Management Act 2023 is payable.
(2) In section 3(1) in the definition of catastrophic injuries support scheme (CISS) delete “accidents;” and insert:
accidents or workplace accidents;
(3) In section 3(1) in the definition of catastrophic injury after “injury” insert:
(4) In section 3(1) in the definition of treatment, care and support assessment delete “injury;” and insert:
injury or workplace injury;
(5) In section 3(1) in the definition of treatment, care and support needs delete “section 6.” and insert:
section 6;
665. Section 5A inserted
After section 5 insert:
5A. Workplace injury to which Act applies
(1) This Act applies to a workplace injury resulting from a workplace accident that occurs on or after the day on which the Workers Compensation and Injury Management Act 2023 section 665 comes into operation.
(2) This Act does not apply to a workplace injury unless there is an established entitlement to compensation in respect of the injury.
(3) There is an established entitlement to compensation in respect of a workplace injury if, and only if —
(a) the injured person has made a claim under the Workers Compensation and Injury Management Act 2023 for compensation under that Act in respect of the injury; and
(b) liability to pay that compensation has been accepted (or is taken to have been accepted) by a licensed insurer or self‑insurer under that Act or has been determined by an arbitrator under that Act.
(4) A workplace injury that is also a motor vehicle injury to which this Act applies must be treated as a motor vehicle injury to which this Act applies and not as a workplace injury to which this Act applies.
A person is not eligible to apply to become a participant in the CISS in respect of a workplace injury unless the person resides in Australia at the time of the application. The participation of a person in the CISS in respect of a workplace injury is suspended while the person is absent from Australia. See sections 9(1A) and 14(1A).
666. Section 8 amended
(1) Delete section 8(1) and insert:
(1) A person is eligible to be a participant in the CISS if the person suffers a catastrophic injury that is —
(a) a motor vehicle injury to which this Act applies; or
(b) a workplace injury to which this Act applies.
(2) In section 8(3) after “motor vehicle injury” insert:
667. Section 9 amended
(1) In section 9(1) delete “injury.” and insert:
injury or workplace injury.
(2) After section 9(1) insert:
(1A) A person is not eligible to apply to become a participant in the CISS in respect of a workplace injury unless the person resides in Australia at the time of the application.
Participation in the CISS in respect of a workplace injury is suspended while the person is absent from Australia. See section 14(1A).
668. Section 13 amended
In section 13:
(a) after “a motor vehicle injury” insert:
(b) delete “same motor vehicle injury.” and insert:
same injury.
669. Section 14 amended
(1) In section 14(1) delete “Australia.” and insert:
Australia, if the person is a participant in respect of a motor vehicle injury.
(2) After section 14(1) insert:
(1A) The participation of a person in the CISS is suspended while the person is absent from Australia if the person is a participant in respect of a workplace injury.
670. Section 15 amended
In section 15(2)(b) after “injury” insert:
671. Section 18 amended
(1) In section 18(2)(b) after “injury” insert:
(2) In section 18(4)(a)(ii) after “injury” insert:
672. Section 19 amended
In section 19(1) in the definition of ordinary costs of raising a child after “injury” insert:
673. Section 22 deleted
Delete section 22.
674. Section 24 amended
In section 24 in the definition of eligibility decision:
(a) delete paragraph (a)(ii) and insert:
(ii) whether an injury is a motor vehicle injury or workplace injury to which this Act applies; or
(b) in paragraph (a)(iv) after “motor vehicle injury” insert:
675. Section 27 amended
Delete section 27(2)(b) and insert:
(b) whether an injury is a motor vehicle injury or workplace injury to which this Act applies.
676. Section 30A inserted
After section 30 insert:
30A. Notification and disclosure of information about injured worker
relevant information, about an injured worker, means information about the worker’s injury or about a claim for compensation or damages in respect of the worker’s injury that is relevant to —
(a) the worker’s eligibility to be a participant in the CISS; or
(b) the worker’s participation in the CISS.
(2) Words and expressions used in this section that have a defined meaning in the Workers Compensation and Injury Management Act 2023 have the same meaning in this section as they have in that Act.
(3) WorkCover WA, a licensed insurer or self‑insurer may disclose relevant information about an injured worker to the Commission if the worker’s injury is or appears likely to be a catastrophic injury.
(4) An insurer or self‑insurer who has received a claim for compensation made by an injured worker in respect of an injury that is or appears likely to be a catastrophic injury must —
(a) provide to the Commission details of the worker’s claim and copies of any medical report or certificate of capacity obtained by or provided to the insurer or self‑insurer in connection with the claim; and
(b) notify the Commission within 7 days after liability to pay compensation has been accepted (or is taken to have been accepted) by the licensed insurer or self‑insurer or has been determined by an arbitrator.
(5) A worker who has suffered an injury that is a catastrophic injury must notify the Commission within 7 days after —
(a) an election is made by the worker to retain the right to seek damages in respect of the injury for the purposes of the Workers Compensation and Injury Management Act 2023 section 421;
(b) any payment of damages in respect of the injury is received by the worker, or any claim for damages by the worker in respect of the injury is settled, if the damages include an amount for expenses in relation to future treatment, care and support needs.
677. Section 31 replaced
Delete section 31 and insert:
False or misleading information
(1) A person must not provide false or misleading information —
(a) in, or in connection with, an application made or a notice or other document given under this Act; or
(b) in compliance, or purported compliance, with a requirement under this Act; or
(c) for any other purpose under this Act.
(2) For the purposes of subsection (1), a person provides false or misleading information if the person —
(a) makes a statement that the person knows is false or misleading in a material particular; or
(b) omits from a statement made by the person anything without which the statement is, to the person’s knowledge, misleading in a material particular; or
(c) gives information that —
(i) the person knows is false or misleading in a material particular; or
(ii) omits anything without which the information, to the person’s knowledge, is misleading in a material particular.
Subdivision 12 — Motor Vehicle (Third Party Insurance) Act 1943 amended
678. Act amended
This Subdivision amends the Motor Vehicle (Third Party Insurance) Act 1943.
679. Section 3 amended
(1) In section 3(1) delete the definitions of:
CISS
MV(CI) Act
(2) In section 3(1) insert in alphabetical order:
CISS means the scheme provided for in the MVWA(CI) Act for the lifetime care and support of certain people catastrophically injured in motor vehicle accidents and workplace accidents;
MVWA(CI) Act means the Motor Vehicle and Workplace Accidents (Catastrophic Injuries) Act 2016;
(3) In section 3(1) in the definitions of assessed treatment, care and support needs and catastrophic injury delete “MV(CI) Act” and insert:
680. Section 3C amended
In section 3C(7) delete “law (other than Division 2 of Part IV of the Workers’ Compensation and Injury Management Act 1981)” and insert:
law (other than the Workers Compensation and Injury Management Act 2023 Part 7 Division 2)
681. Section 3EA amended
(1) In section 3EA(1) in the definitions of interim participant and lifetime participant:
(a) delete “MV(CI) Act” and insert:
(b) delete “CISS;” and insert:
CISS in respect of a motor vehicle injury to which that Act applies;
(2) In section 3EA(1) in the definition of treatment, care and support needs paragraph (a) delete “MV(CI) Act” and insert:
682. Section 3FB amended
In section 3FB(1) in the definition of treatment, care and support needs delete “MV(CI) Act” and insert:
683. Section 3G amended
In section 3G(1) delete “compensation under the Workers’ Compensation and Injury Management Act 1981 in respect of that death or bodily injury or which would have given rise to liability of that kind but for section 22 of that Act.” and insert:
compensation under the Workers Compensation and Injury Management Act 2023 in respect of that death or bodily injury or which would have given rise to liability of that kind but for section 20 of that Act.
684. Section 3T amended
(1) In section 3T(1):
(a) delete “MV(CI) Act by” and insert:
MVWA(CI) Act by
(b) delete “MV(CI) Act.” and insert:
MVWA(CI) Act.
(2) After section 3T(1) insert:
(1A) The reference in subsection (1) to other income expected to be received under, and to claims, payments, costs and other expenses anticipated to arise or to be incurred under, the MVWA(CI) Act is limited to that income and to those claims, payments, costs and other expenses that relate to motor vehicle injuries to which that Act applies.
(3) In section 3T(2) delete “Motor Vehicle (Catastrophic Injuries) Fund” and insert:
Motor Vehicle and Workplace Accidents (Catastrophic Injuries) Fund
685. Section 6A amended
(1) In section 6A(1) in the definition of motor vehicle accident delete “MV(CI) Act” and insert:
(2) In section 6A(2)(a) delete “MV(CI) Act” and insert:
Subdivision 13 — Police Act 1892 amended
686. Act amended
This Subdivision amends the Police Act 1892.
687. Section 33ZS amended
(1) In section 33ZS(1) delete the definitions of:
approved medical specialist
WorkCover Guides
(2) In section 33ZS(1) insert in alphabetical order:
approved permanent impairment assessor means a person appointed under section 33ZW(2);
Permanent Impairment Guidelines means the Permanent Impairment Guidelines issued under section 187 of the WCIM Act;
(3) Delete section 33ZS(2) and insert:
(2) For the purposes of this Part, the prescribed amount, for a financial year, is the amount specified as the general maximum amount for the financial year in section 538 of the WCIM Act.
688. Section 33ZW amended
(1) In section 33ZW(1) in the definition of degree of permanent impairment paragraph (b) delete “Schedule 2 item 80 or 81 of the WC&IM Act —” and insert:
item 43 or 44 in the Table to section 101 of the WCIM Act —
(2) Delete section 33ZW(2) and insert:
(2) The Police Commissioner may appoint a person approved as a permanent impairment assessor under section 193(1) of the WCIM Act to be an approved permanent impairment assessor for the purposes of this section.
(3) In section 33ZW(3)(a) delete “in Schedule 2 Part 2 of the WC&IM Act; and” and insert:
to section 101 of the WCIM Act; and
(4) In section 33ZW(5):
(a) in paragraph (a) delete “approved medical specialist; and” and insert:
approved permanent impairment assessor; and
(b) in paragraph (b) delete “WorkCover Guides” and insert:
Permanent Impairment Guidelines
(5) In section 33ZW(7) delete “in Schedule 2 Part 2 of the WC&IM Act.” and insert:
to section 101 of the WCIM Act.
689. Section 33ZX amended
(1) Delete section 33ZX(1) and insert:
noise induced hearing loss means total or partial loss or diminution of hearing that is noise induced.
(2) In section 33ZX(3) delete “that section.” and insert:
that section and subject to regulations made for the purpose of section 33ZZI(1)(fa).
(3) In section 33ZX in the note delete “Schedule 2 item 44 of the WC&IM Act.” and insert:
item 5 of the Table to section 101 of the WCIM Act.
690. Section 33ZY amended
In section 33ZY in the note delete “Schedule 2 item 82 of the WC&IM Act.” and insert:
item 45 of the Table to section 101 of the WCIM Act.
691. Section 33ZZI amended
(1) In section 33ZZI(1):
(a) in paragraph (f)(i) delete “approved medical specialist” and insert:
approved permanent impairment assessor
(b) in paragraph (f)(ii) delete “approved medical specialists” and insert:
approved permanent impairment assessors
(c) after paragraph (f) insert:
(fa) make provision for, or in relation to, the assessment of noise induced hearing loss for the purposes of section 33ZX;
(2) In section 33ZZI(2):
(a) delete “WC&IM Act,” and insert:
WCIM Act,
(b) delete “Part VII of the WC&IM Act.” and insert:
Part 4 of the WCIM Act.
(3) In section 33ZZI(3) delete “WorkCover Guides” and insert:
Permanent Impairment Guidelines
Subdivision 14 — Police (Medical and Other Expenses for Former Officers) Act 2008 amended
692. Act amended
This Subdivision amends the Police (Medical and Other Expenses for Former Officers) Act 2008.
693. Section 3 amended
(1) In section 3(1) delete the definitions of:
injury
(2) In section 3(1) insert in alphabetical order:
injury has the meaning given in the WCIM Act section 5;
(3) In section 3(1) in the definition of appropriate changes delete “WC&IM Act,” and insert
WCIM Act,
(4) In section 3(2) delete “WC&IM Act” (each occurrence) and insert
694. Section 5 amended
In section 5(1) delete “WC&IM Act Schedule 1 clause 17 (other than subclauses (1aa), (1a) and (6)) and clause 19,” and insert:
WCIM Act sections 70(1), 71, 72, 75, 82(1), 83 (other than paragraphs (d) and (g)), 84 to 87, 89 and 90,
695. Section 7 amended
In section 7:
(a) delete “The WC&IM Act” and insert:
The WCIM Act
(b) delete “WC&IM Act section 176(1).” and insert:
WCIM Act section 303.
Note: The heading to amended section 7 is to read:
Procedure under WCIM Act applies
696. Section 8 replaced
Delete section 8 and insert:
Time limits under WCIM Act do not apply
Despite section 7, the WCIM Act sections 25(1) and 78(6) do not apply in relation to a claim or the recovery of an amount under section 4(1) of this Act.
697. Section 9 amended
In section 9 delete “WC&IM Act section 187,” and insert:
WCIM Act section 355,
698. Section 14 amended
In section 14 delete “WC&IM Act” and insert:
Note: The heading to amended section 14 is to read:
Appropriate changes to WCIM Act
Subdivision 15 — Public Sector Management Act 1994 amended
699. Act amended
This Subdivision amends the Public Sector Management Act 1994.
700. Schedule 2 amended
In Schedule 2 delete item 65 and insert:
| 65 | WorkCover WA established under the Workers Compensation and Injury Management Act 2023 |
Subdivision 16 — Sentencing Act 1995 amended
701. Act amended
This Subdivision amends the Sentencing Act 1995.
702. Schedule 1 amended
In Schedule 1 delete the item relating to the Workers’ Compensation and Injury Management Act 1981 and insert:
| Workers Compensation and Injury Management Act 2023 | WorkCover WA General Account |
Subdivision 17 — State Superannuation (Transitional and Consequential Provisions) Act 2000 amended
703. Act amended
This Subdivision amends the State Superannuation (Transitional and Consequential Provisions) Act 2000.
704. Section 74 deleted
Delete section 74.
[Pt. 15 Div. 3 Subdiv. 18 has not come into operation.]
This Subdivision amends the Workers’ Compensation and Injury Management Amendment Act 2011.
708. Section 123 amended
Delete section 123(2) to (7).
Subdivision 20 — Other Acts amended
709. References to Workers’ Compensation and Injury Management Act 1981 amended
(1) This section amends the Acts listed in the Table.
(2) In the provisions listed in the Table delete “Workers’ Compensation and Injury Management Act 1981” and insert:
*Workers Compensation and Injury Management Act 2023*
| Blood Donation (Limitation of Liability) Act 1985 | s. 3A(1) and (2) |
| Credit Act 1984 | s. 9 |
| Duties Act 2008 | s. 209(2)(b) |
| Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 | s. 3 def. of workers’ compensation<br>s. 6(1) |
| Magistrates Court (Civil Proceedings) Act 2004 | s. 7(1) def. of services par. (a) |
| Owner‑Drivers (Contracts and Disputes) Act 2007 | s. 27(4)(b) |
| Police Assistance Compensation Act 1964 | s. 4(2)<br>s. 5(2)(b)<br>s. 6 |
| Protective Custody Act 2000 | s. 27(9) |
| Public Trustee Act 1941 | s. 37(3A) |
| Sentence Administration Act 2003 | s. 81(1) and (2)<br>s. 100(a) |
| Stamp Act 1921 | s. 92A(2)(b) |
| Young Offenders Act 1994 | s. 17D(a)<br>s. 62 |
Note: The heading to amended section 3A of the Blood Donation (Limitation of Liability) Act 1985 is to read:
This Act not to apply to or in relation to liability under Workers Compensation and Injury Management Act 2023
Part 16 — Validation
[Heading inserted: No. 40 of 2024 s. 4.]
710. Terms used
(1) In this Part —
agreement means an agreement referred to in section 93L(2)(a) of the former Act before 1 July 2024;
assessment means an assessment referred to in section 93L(2)(b) of the former Act before 1 July 2024;
Director has the meaning given in section 5(1) of the former Act before 1 July 2024;
extended limitation period means the period of 12 months beginning on validation day;
former Act means the Workers’ Compensation and Injury Management Act 1981 (including subsidiary legislation made under that Act, unless otherwise indicated);
Neville v Choice One Pty Ltd means the decision of the Court of Appeal in Neville v Choice One Pty Ltd [2024] WASCA 104;
transitional period means the period beginning on 5 September 2024 and ending on the day before validation day;
validated election has the meaning given in subsection (2), subject to section 712;
validation day means the day on which the Workers Compensation and Injury Management Amendment (Common Law Election Validation) Act 2024 section 3 comes into operation.
(2) A validated election is an election purportedly made before 1 July 2024 under section 93K(4)(a) of the former Act if —
(a) before 1 July 2024, the Director recorded the required agreement or assessment under section 93L(2) of the former Act; but
(b) the Director did not do so before the election was purportedly made.
[Section 710 inserted: No. 40 of 2024 s. 4.]
711. Validated elections
(1) A validated election —
(a) is taken to have been, at all times before validation day, as lawful, valid and effective as it would have been had the Director recorded the required agreement or assessment under section 93L(2) of the former Act before the validated election was purportedly made; and
(b) is taken to be, at all times on and after validation day, as lawful, valid and effective as it would be had the Director recorded the required agreement or assessment under section 93L(2) of the former Act before the validated election was purportedly made.
(2) Subsections (3) to (7) —
(a) supplement subsection (1); and
(b) are not to be construed as limiting the effect of subsection (1) or each other.
(3) The former Act, as in force at any time before 1 July 2024 or as it continues to apply at any time on or after 1 July 2024 under Part 14 of this Act or otherwise, is taken to have had, or to have, the same effect at that time as if the Director had recorded the required agreement or assessment under section 93L(2) of the former Act before the validated election was purportedly made.
(4) Any written law (including this Act) in force at any time before, on or after validation day is taken to have had, or to have, the same effect at that time as if the Director had recorded the required agreement or assessment under section 93L(2) of the former Act before the validated election was purportedly made.
(5) Anything done, or purportedly done, before, on or after validation day is taken to be, and to have always been, as lawful, valid and effective as it would be, or would have been, had the Director recorded the required agreement or assessment under section 93L(2) of the former Act before the validated election was purportedly made.
(6) In subsection (5), a reference to the doing of anything includes a reference to an omission to do anything.
(7) The functions, rights, obligations and liabilities of the State, and of all persons and bodies, are taken to be, and to have always been, the same as if the Director had recorded the required agreement or assessment under section 93L(2) of the former Act before the validated election was purportedly made.
(8) Without limiting the effect of this section, this section has effect for the purposes of —
(a) any court proceedings seeking damages in reliance on the validated election —
(i) that were commenced before validation day but were not finalised before validation day (by judgment, settlement, dismissal, discontinuance or otherwise); or
(ii) that are commenced on or after validation day;
and
(b) any appeal proceedings in respect of court proceedings seeking damages in reliance on the validated election if the appeal proceedings —
(i) were commenced before validation day but were not finalised before validation day; or
(ii) are commenced on or after validation day.
[Section 711 inserted: No. 40 of 2024 s. 4.]
712. Election considered in Neville v Choice One Pty Ltd
The election purportedly made on 28 March 2019 that was considered in Neville v Choice One Pty Ltd is not a validated election.
[Section 712 inserted: No. 40 of 2024 s. 4.]
713. Court proceedings struck out, stayed or dismissed before validation day
(1) This section applies if, before validation day —
(a) court proceedings were commenced seeking damages in reliance on a validated election; and
(b) the court proceedings were struck out, stayed or dismissed by the court on the ground that the Director did not record the required agreement or assessment under section 93L(2) of the former Act before the validated election was purportedly made.
(2) On or after validation day, if the court, on an application made by the person seeking damages, is satisfied that it is just and reasonable to do so, the court may, on whatever terms it thinks fit, set aside or vary the order that struck out, stayed or dismissed the court proceedings.
(3) Alternatively, or if the court refuses to act under subsection (2) on an application, new court proceedings seeking damages in reliance on the validated election may be commenced on or after validation day under Part 7 Divisions 1 to 4 of this Act as provided for under Part 14 of this Act.
(4) Subsection (5) applies to commencing new court proceedings under subsection (3) if the period of 3 years referred to in the Limitation Act 2005 section 14(1) that, apart from subsection (5), would apply to commencing the court proceedings —
(a) expired before validation day; or
(b) expires on or after validation day but before the extended limitation period expires.
(5) The Limitation Act 2005 applies as if section 14(1) of that Act referred to the extended limitation period instead of the period of 3 years.
(6) If the court acts under subsection (2) or new court proceedings are commenced under subsection (3), the Law Reform (Miscellaneous Provisions) Act 1941 section 4 applies for the purposes of the recommenced or new proceedings disregarding any requirement in that section that proceedings were pending at the time of death.
[Section 713 inserted: No. 40 of 2024 s. 4.]
714. Court proceedings discontinued before validation day
(1) This section applies if —
(a) court proceedings were commenced before validation day seeking damages in reliance on a validated election; and
(b) during the transitional period, the court proceedings were discontinued by the person seeking the damages.
(2) On or after validation day, the court may, on an application made by the person seeking damages, allow the discontinuance of the court proceedings to be withdrawn on whatever terms the court thinks fit if the court is satisfied that —
(a) it is just and reasonable to do so; and
(b) the court proceedings were discontinued on the ground that the Director did not record the required agreement or assessment under section 93L(2) of the former Act before the validated election was purportedly made.
(3) Alternatively, or if the court refuses to act under subsection (2) on an application, new court proceedings seeking damages in reliance on the validated election may be commenced on or after validation day under Part 7 Divisions 1 to 4 of this Act as provided for under Part 14 of this Act.
(4) Subsection (5) applies to commencing new court proceedings under subsection (3) if the period of 3 years referred to in the Limitation Act 2005 section 14(1) that, apart from subsection (5), would apply to commencing the court proceedings —
(a) expired before validation day; or
(b) expires on or after validation day but before the extended limitation period expires.
(5) The Limitation Act 2005 applies as if section 14(1) of that Act referred to the extended limitation period instead of the period of 3 years.
(6) If the court acts under subsection (2) or new court proceedings are commenced under subsection (3), the Law Reform (Miscellaneous Provisions) Act 1941 section 4 applies for the purposes of the recommenced or new proceedings disregarding any requirement in that section that proceedings were pending at the time of death.
[Section 714 inserted: No. 40 of 2024 s. 4.]
715. Second election made under Part 7 of this Act
(1) This section applies in relation to a validated election if, during the transitional period, the person who purportedly made the validated election made an election (the second election) under Part 7 of this Act to retain the right to seek damages in respect of the injury that was the subject of the validated election.
(2) The application of section 711 to the validated election —
(a) does not affect any of the following —
(i) the second election;
(ii) the application of Part 7 of this Act in relation to, or in consequence of, the second election;
(iii) the registration of the second election under Part 7 of this Act, despite section 421(6) of this Act;
(iv) any court proceedings seeking damages in reliance on the second election that were commenced before validation day;
and
(b) does not prevent the commencement of court proceedings on or after validation day seeking damages in reliance on the second election and, if such court proceedings are commenced, does not affect the court proceedings; and
(c) does not prevent damages being awarded in court proceedings referred to in paragraph (a)(iv) or (b).
[Section 715 inserted: No. 40 of 2024 s. 4.]
716. No right of recovery for compensation paid
(1) This section applies to a person who purportedly made a validated election if, during the transitional period, an amount of compensation was paid to the person under Part 2 of this Act in respect of the injury that was the subject of the validated election.
(2) Despite the application of section 711 to the validated election, the amount of compensation is not recoverable from the person.
[Section 716 inserted: No. 40 of 2024 s. 4.]
dline
Notes
This is a compilation of the Workers Compensation and Injury Management Act 2023 and includes amendments made by other written laws. For provisions that have come into operation see the compilation table. For provisions that have not yet come into operation see the uncommenced provisions table.
Compilation table
Short title
Number and year
Assent
Commencement
Workers Compensation and Injury Management Act 2023
21 of 2023
24 Oct 2023
Pt 1 Div. 1: 24 Oct 2023 (see s. 2(a));<br>Pt. 14 (but only Div. 1, 4 and 10 and only s. 542, 543, 545, 574, 579, 603, 606 and 609): 25 Oct 2023 (see s. 2(b)); Act other than Pt. 1 Div. 1, Pt. 14 Div. 1 s. 542, 543 & 545, Pt. 14 Div. 4 s. 574 & 579, Pt. 14 Div. 10 s. 603, 606 & 609 & Pt. 15 Div. 3 Subdiv. 18: 1 Jul 2024 (see s. 2(d) and SL 2024/34 cl. 2); Pt. 15 Div. 3 Subdiv. 18: 1 Sep 2024 (see s. 2(c)(ii) and SL 2024/175 cl. 2)
Workers Compensation and Injury Management Amendment Act 2023
22 of 2023
24 Oct 2023
s. 1‑3: 24 Oct 2023 (see s. 2(a)); s. 4‑8: 1 Jul 2024 (see s. 2(b)‑(f) and SL 2024/34 cl. 2)
Civil Liability Amendment (Provisional Damages for Dust Diseases) Act 2024 Pt. 5 (other than s. 12) 1
32 of 2024
26 Sep 2024
1 Dec 2024 (see s. 2(1)(b)(i) and SL 2024/238 cl. 2)
Workers Compensation and Injury Management Amendment (Common Law Election Validation) Act 2024
40 of 2024
29 Oct 2024
s. 1 and 2: 29 Oct 2024 (see s. 2(a)); Act other than s. 1 and 2: 30 Oct 2024 (see s. 2(b))
Uncommenced provisions table
To view the text of the uncommenced provisions see Acts as passed on the WA legislation website.
Short title
Number and year
Assent
Commencement
Evidence Act 2025 s. 492(1)
15 of 2025
25 Sep 2025
To be proclaimed (see s. 2(e))
Other notes
1 The Civil Liability Amendment (Provisional Damages for Dust Diseases) Act 2024 s. 12 was deleted on 1 Dec 2024 (see s. 2(2)(b) and SL 2024/238 cl. 2).
Defined terms
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]
Defined term Provision(s)
acquire 449(1)
act of terrorism 285, 287(1)
adjustable amount 538(2)
adjustable premium policy 238(1)
adjustment methodology 73(4), 94(4), 538(3)
administrative action 7(1)
agency arrangement 201
agent service 303
aggregated amount 136(2)
agreement 710(1)
AIDS 5
allowable purpose 91(1)
another State 443(2)
application 144(1)
appointed member 444
appropriate official 571
approved costs determination 394
approved form 5
approved permanent impairment assessor 5, 193(1)
approved workplace rehabilitation provider 5
arbitration rules 5, 382(1)
Arbitration Service 5
arbitrator 5
artificial aid 89(1)
assent day 2
assessed NIHL 107, 111(1)
assessment 107, 710(1)
assessment period 111(1)
assessor 191(1), 192(1)
assistant 513(1)
auditor 514
Australian practising certificate 366
authorised agent 303
base award rate 57(1)
base award rate component 57(1)
Board 5
board and lodging 45
bonus or allowance 45
CEO 5
certificate of capacity 5
certificate of outcome 324
chairperson 444
change 321(2), 323(4)
chief executive officer (prisons) 66(1)
child 131
CIF 297
claims limit 291(1)
client 398(1)
code 540(1)
commencement day 542
committee 444
company 5, 222(1)
company director 16(1)
compensable injury 102(1)
compensable service 148(1)
compensation 5
compensation cap 557(1)
compensation liability 285
compensation liability in respect of a declared act of terrorism 285
compensation order 131
compliance audits and investigations 198(1), 578(6)
compliance purposes 507, 510(1)
conciliation agreement 324
conciliation decision 324
conciliation rules 5, 381(1)
Conciliation Service 5
conciliator 5
contractor 214
contract worker 221(1)
Contribution Act 427(1)
contribution percentage 261(2), 491(1)
corresponding law 365(1)
costs 394
Costs Committee 394
costs determination 394, 405(1)
costs of a proceeding 394
court 328(1), 528
current year 261(2), 491(1)
damages 143(1), 200, 411(1)
dangerous action 287(2)
dangerous result 287(2)
decision 303
declared act of terrorism 285
declared remuneration 59(1)
deemed employer 416
deemed liability acceptance day 28(1)
deemed worker 200
defaulting insurer 282(2)
defaulting insurer payment 282(2)
deferred decision notice 23, 28(4)
degree of permanent impairment 5
dependant 131
dependant lump sum entitlement amount 132(2)
determination 528
DI Fund 5, 256(1)
Director 5, 710(1)
disease 5
disease compensation 35(1)
dispose of 449(1)
dispute 303
dispute proceedings 571
dispute resolution application 64(2)
dispute resolution authority 5
DLSE 133(2)
document 5, 497(2)
drug of addiction 20(1)
dust disease 5, 115
dust disease compensation claim 115
dust disease impairment compensation 5
Dust Disease Medical Panel 115
earnings 45
EISF Act 586(1)
EIS Fund 585(1)
election 588
eligible dependent child 134(1)
eligible dependent child allowance 134(2), 142(1)
eligible person 136(2)
employee 14(1)
employer 5, 12(3), 222(1), 439
employer audit 211(1)
employment obligation period 166(1), 168(1)
estimate 490
event 184(1)
extended family member 131
extended limitation period 710(1)
firefighter disease 11(1)
firefighting employment 11(1)
former Act 542, 710(1)
former Act claim 551(1)
former Act policy 593(1)
former common law provisions 588
former rate 52(1)
funeral expenses 135(2)
funeral expenses maximum amount 134(2)
further NIHL 107
General Account 5
General Account transfer 259(2)
general limit for the claim 77(1), 78(1)
general maximum amount 5, 538(1)
give 497(1)
governing body 605(1)
group self-insurer licence 5, 200
hazardous fire 11(1)
hazardous firefighting employment 11(1)
health professional 5
hearing loss 107
hearing loss matters 113(1)
HIV 5
host 13(1), 167(1)
incapacity claim 5, 23
income compensation 5
income compensation general limit amount 45, 157(1)
industrial instrument 57(1)
industry classification 200
industry classification order 253(1)
industry classification review 255(1)
information 364(1), 498(1)
information exchange requirements 334(1)
initial NIHL 107
injured worker 5
injury 5, 6(1), 116(1), 306(1), 439
injury by disease 5
injury management system 159(1)
insolvent 277(2)
insolvent insurer 277(1)
insolvent self-insurer 277(1)
inspector 5
insurable damages 200
Insurance Commission 5
insurance information requirements 16(1)
insurance requirement 205
insured employer 5
insurer 5
insurer liabilities 231(3)
insurer licence 200
interim compensation direction 303, 320(1)
jockey 53
judgment 143(1)
labour hire employment 14(1)
labour hirer 14(1), 167(1)
last employer 34(1), 35(2)
last relevant employer 293
leave without pay 54(6)
Legal Costs Committee 402(1)
legal service 394
liability decision notice 22(3)
liability decision period 241(4)
liability question 34(2)
licensed 15(1)
licensed facility 15(1)
licensed insurer 5, 200
licensed jockey 15(1)
licensed trainer 15(1)
liquidator 277(1)
lodge 497(1)
lump sum limit 100(1)
matter 466(1)
maximum damages amount for less than 25% impairment 424(1)
maximum weekly rate of income compensation 53
medical and health expense 5, 71(1)
medical and health expenses compensation 5, 70(1)
medical and health expenses general limit amount 5, 69
medical and health service 69
medical practitioner 5
mesothelioma 5
miscellaneous expense 5, 81
miscellaneous expenses compensation 5, 82(1)
misconduct 455(1)
Neville v Choice One Pty Ltd 710(1)
new common law provisions 588
new information 354(1)
new licensed insurer 261(7), 491(6)
new provision 547(2)
new self-insurer 261(7), 491(6)
NIHL assessment 106(3), 111(1)
NIHL maximum compensation amount 107
noise-induced hearing loss 5, 107
noise-induced hearing loss compensation 107, 108(1)
notional premium income 260(1), 487(1)
old provision 547(2)
order 144(1)
original assessment 105(1)
original document 517(1)
other recompense 22(1)
overtime 45
Panel 115
partner 131
party 303
pending claim 586(2)
pending dispute decision 571
pending dispute proceedings 571
pending matter 542
permanent impairment agreement 588
permanent impairment assessment 588
permanent impairment compensation 5, 97(1)
Permanent Impairment Guidelines 179, 187(1)
permanent impairment notice 105(1)
permitted circumstances 241(1)
person 12(1)
preceding financial year 490(1)
pre-injury position 166(2)
pre-injury weekly rate of income 53
premium income 259(1), 487(1)
premium information 210(1)
premium reimbursement order 207(1), 208(1)
premium review 255(1)
prescribed amount before commencement 566
prescribed disease 10(1), 268(1)
prescribed employment 9(1)
primary power 349
principal 214
progress certificate of capacity 163(1)
prohibited person 365(1)
proposed action 64(2)
provider eligibility requirements 74(1)
provisional payments 5
publication day 544(1)
public authority 235(1)
qualifying period 11(1)
Racing and Wagering Western Australia 15(1)
reasonable 69, 71(1)
reduced amount 423(2)
reduction factor 291(3)
registered 588
registered club 15(1)
Registrar 5
registrar (MIRT) 66(1)
registration day 423(1)
regular additional earnings 57(1)
reinsurance payment 282(1)
related entity 246(1)
relevant Act 585(1)
relevant document 306(1)
relevant employer 34(2), 35(1)
relevant employment 35(1)
relevant exposure 116(1)
relevant government authority 66(1)
relevant industry classification 203(1)
relevant information 503(1)
relevant law 66(1)
relevant period 221(1)
relevant person 501(1)
relevant rules 362
remuneration 200
remuneration estimate 59(1)
remuneration statement 59(1)
representative 369(1), 398(1)
required CIF contribution 297
required CIF contributions 299(1)
required contribution 491(1)
required declarations 64(1)
required DI Fund contribution 261(2)
required security amount 249
responsible officer 208(1), 271(2)
return to work 5
return to work case conference 165(1)
return to work program 5, 160(1)
rule 383(1)
secondary condition 185(1)
second election 715(1)
self-insurer 5, 200, 277(2)
self-insurer liability 200
self-insurer licence 5, 200
self-insurer security 249, 250
service provider 448
settlement 143(1)
settlement agreement 5, 149(1)
ship 5
sick leave 61(1)
special expense 69
special increase 69
special increase limit amount 69
specialised insurer 200
specialised insurer condition 234(1)
specified 544(1)
staff member 5
standard increase 69
standard increase limit amount 69
State 5, 528
State’s legislation about damages for an injury from employment 438
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