What it does
The Workers Compensation Regulation 2016 (the Regulation) is subordinate legislation made under the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and the Workers Compensation Act 1987 (the 1987 Act). It operationalises the NSW workers compensation scheme by prescribing detailed machinery that the primary Acts leave to regulation.
At its core, the Regulation does four things. First, it identifies work-related diseases and the evidentiary thresholds for establishing them. Clause 4 prescribes the diseases and employments in Schedule 1 (e.g. leptospirosis for abattoir workers). Clauses 5, 5B and 5C set out specific serological or PCR test results that trigger statutory presumptions under ss 19, 19A and 19B of the 1987 Act. The COVID-19 provisions in cl 5B–5D (inserted by 2020 (428)) create a rebuttable presumption for prescribed workers (cafes, supermarkets, funeral homes, child care) and modify incapacity rules under s 19B(5).
Second, it governs the calculation of pre-injury average weekly earnings (PIAWE), the linchpin of weekly compensation. Part 3 (cll 6–7) applies to injuries before 21 October 2019 and prescribes a $155 minimum (cl 6) and 38-hour week (cl 7). Part 4 (inserted by 2019 (455) and substantially rewritten by 2019 (616)) is far more elaborate. Clause 8AA defines key terms. Clause 8A sets out the sequential adjustments to the “relevant earning period” under Sch 3 cl 2 of the 1987 Act: non-continuous employment (cl 8B), financially material change (cl 8C), pay-period alignment (cl 8D), unpaid leave (cl 8E), and COVID-19 prescribed periods (cl 8EA, inserted 2020 (625)). Divisions 3 and 4 deal with short-term workers, apprentices, young people (cll 8F–8G) and PIAWE agreements (cll 8H–8M). Clause 8N imposes a 14-day payment obligation on “payment increase decisions” with a 20-penalty-unit maximum.