New South Wales regulation

Workers Compensation Regulation 2016

In ForceNSW

Jurisdiction

New South Wales

Act Number

559 of 2016

Collection

regulation

Plain English Summary

8/10 complexity

This Regulation sets detailed NSW rules for workers’ compensation: it prescribes which diseases and test results are treated as work‑related (including COVID‑19), fixes how pre‑injury average weekly earnings are calculated and approved (with different rules for injuries before and after 21 Oct 2019), and prescribes maximum recoverable legal costs and how costs are awarded in work‑injury disputes.

It affects workers, employers, insurers, legal practitioners and the Commission because it changes entitlement calculations, insurer approval duties, evidentiary presumptions and who can recover what legal costs.

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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.

Current sections

Direct links to the current provisions in Workers Compensation Regulation 2016.

247

Part 1

Preliminary

Part 1 Preliminary

Name of Regulation

1 Name of Regulation

This Regulation is the Workers Compensation Regulation 2016.

Commencement

2 Commencement

This Regulation commences on 1 September 2016 and is required to be published on the NSW legislation website.

Note.

This Regulation replaces the Workers Compensation Regulation 2010, which is repealed on 1 September 2016 by section 10(2) of the Subordinate Legislation Act 1989.

Definitions

3 Definitions

(1) In this Regulation—

approved form means a form approved by the Authority.

approved provider of workplace rehabilitation services means a provider that holds a certificate of approval.

category 1 employer means—

(a) an employer insured under a policy of insurance to which the Workers Compensation Market Practice and Premiums Guidelines apply and whose basic tariff premium (within the meaning of those guidelines) for that policy would exceed $50,000, if the period of insurance to which the premium relates were 12 months, or

(b) an employer insured under more than one policy of insurance to which the Workers Compensation Market Practice and Premiums Guidelines apply and whose combined basic tariff premiums (within the meaning of those guidelines) for those policies would exceed $50,000, if the period of insurance to which each premium relates were 12 months, or

(c) an employer who is self-insured, or

(d) an employer who is insured with a specialised insurer and who employs more than 20 workers.

category 2 employer means an employer who is not a category 1 employer.

certificate of approval means a certificate of approval as a provider of workplace rehabilitation services granted by the Authority under clause 23.

return-to-work guidelines means the guidelines, relating to return-to-work programs, determined by the Authority under section 52(2)(a) of the 1998 Act.

return-to-work program means a return-to-work program established under section 52 of the 1998 Act with respect to policies and procedures (consistent with the injury management program of the employer’s insurer) for the rehabilitation (and, if necessary, vocational re-education) of any injured workers of the employer.

the 1987 Act means the Workers Compensation Act 1987.

the 1998 Act means the Workplace Injury Management and Workers Compensation Act 1998.

Note.

The 1987 Act, the 1998 Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

(2) Notes included in this Regulation (other than notes in Schedule 6) do not form part of this Regulation.

Part 2

Work-related diseases

Part 2 Work-related diseases

Diseases taken to be work-related

4 Diseases taken to be work-related

(1) Each kind of employment set out in Column 2 of Schedule 1 is prescribed as employment to which section 19(1) of the 1987 Act applies.

(2) A disease set out in Column 1 of Schedule 1 is prescribed as a disease that is related to the employment or, as the case may require, each kind of employment, set out in Column 2 of that Schedule opposite the description of that disease.

Medical tests and results to determine whether brucellosis, Q fever or leptospirosis is work-related

5 Medical tests and results to determine whether brucellosis, Q fever or leptospirosis is work-related

For the purposes of section 19(2) of the 1987 Act, any one of the results set out in Column 3 of Part 1 of Schedule 2, if obtained by means of the medical test the requirements of which are set out opposite that result in Column 2 of that Part, is a result prescribed in respect of the disease, the name of which appears opposite that result in Column 1 of that Part.

cl 5: Am 2020 (428), Sch 1[1] [2].

Firefighting bodies and agencies

5A Firefighting bodies and agencies

The following bodies and agencies are prescribed for the purposes of section 19A of the 1987 Act—

(a) the NSW Rural Fire Service,

(b) Fire and Rescue NSW,

(c) the Office of Environment and Heritage,

(d) the Forestry Corporation,

(e) Sydney Trains.

cl 5A: Ins 2018 No 93, Sch 3.

COVID-19—medical tests and results to determine if COVID-19 is work-related

5B COVID-19—medical tests and results to determine if COVID-19 is work-related

(1) For the purposes of section 19B(2) of the 1987 Act, a result set out in Column 3 of Part 2 of Schedule 2 in relation to COVID-19, if obtained by means of a medical test the requirements of which are set out opposite that result in Column 2 of that Part in relation to the disease, is a result prescribed in respect of the disease.

(2) For the purposes of section 19B(3) of the 1987 Act, the clinical criteria prescribed for the purpose of making a classification of COVID-19 are the obtaining of a result prescribed under section 19B(2) of the 1987 Act in respect of the disease by means of a medical test that complies with the requirements prescribed under that subsection in relation to the disease.

(3) A reference in Part 2 of Schedule 2 to the Australian Register of Therapeutic Goods is a reference to the register of that name maintained under the Therapeutic Goods Act 1989 of the Commonwealth.

cll 5B–5D: Ins 2020 (428), Sch 1[3].

COVID-19—matters relating to incapacity

5C COVID-19—matters relating to incapacity

(1) For the purposes of section 19B(5)(a) of the 1987 Act, the relevant date is the later of—

(a) the date that is 21 days after the date of the injury, or

(b) if a medical practitioner issues a certificate of capacity certifying that the worker still has COVID-19 on that date—the date that marks the end of the expected duration of the worker’s incapacity for work as a result of COVID-19 that is specified in the certificate.

(2) Section 32A of the 1987 Act is modified by adding the following subsection at the end of the section—

(3) For the purposes of applying this Division to a worker referred to in section 19B(5), a reference in section 19B(5) to a worker being incapable of work is a reference to the worker having a total incapacity for work and no current work capacity.

(3) Subclauses (4) and (5) apply—

(a) to a worker the subject of a presumption under section 19B(1) of the 1987 Act in relation to whom the presumption under section 19B(5) of the 1987 Act is rebutted (a relevant worker), and

(b) for the purposes of Division 2 of Part 3 of the 1987 Act.

(4) To avoid doubt, section 33 of the 1987 Act applies to a relevant worker with a total or partial incapacity for work resulting from the worker’s COVID-19 infection.

(5) A relevant worker to whom section 33 of the 1987 Act does not otherwise apply is taken to be partially incapacitated for work and to have current work capacity as a result of COVID-19 during the worker’s isolation period if the worker’s actual gross weekly earnings from paid employment during that period are—

(a) less than the gross weekly amount that the worker had the capacity to earn in the worker’s pre-injury employment immediately before the injury, or

(b) nil.

(6) For the purposes of applying Division 2 of Part 3 of the 1987 Act to a relevant worker, the current weekly earnings of the worker in relation to a week are the worker’s actual gross earnings in respect of that week, and clause 8 of Schedule 3 to the 1987 Act in its application to the worker is taken to be modified accordingly.

(7) In this clause—

isolation period in relation to a worker means the period for which the worker is required by a medical practitioner to isolate following the worker’s diagnosis of COVID-19.

cll 5B–5D: Ins 2020 (428), Sch 1[3].

COVID-19—prescribed employment

5D COVID-19—prescribed employment

For the purposes of the definition of prescribed employment in section 19B(9) of the 1987 Act, employment in any of the following is prescribed—

(a) cafes,

(b) supermarkets,

(c) funeral homes,

(d) child care facilities.

cll 5B–5D: Ins 2020 (428), Sch 1[3].

Part 3

Pre-injury average weekly earnings—injuries occurring before 21 October 2019

Part 3 Pre-injury average weekly earnings—injuries occurring before 21 October 2019

pt 3, hdg: Subst 2019 (455), Sch 1[1].

6AA

Application of Part

6AA Application of Part

This Part applies only to injuries received before 21 October 2019.

cl 6AA: Ins 2019 (455), Sch 1[1].

Minimum amount of pre-injury average weekly earnings

6 Minimum amount of pre-injury average weekly earnings

For the purposes of section 44C(7) of the 1987 Act, the amount of $155 is prescribed as the minimum amount applicable to a worker.

Prescribed number of hours each week

7 Prescribed number of hours each week

For the purposes of the prescribed number of hours wherever referred to in Schedule 3 to the 1987 Act, 38 hours is prescribed.

Part 4

Pre-injury average weekly earnings—injuries occurring on or after 21 October 2019

Part 4 Pre-injury average weekly earnings—injuries occurring on or after 21 October 2019

pt 4, hdg: Subst 2019 (455), Sch 1[2].

pt 4: Subst 2019 (455), Sch 1[2].

Division 1

Preliminary

Division 1 Preliminary

pt 4, div 1: Ins 2019 (455), Sch 1[2].

Application and operation of Part

8 Application and operation of Part

(1) This Part takes effect on and from 21 October 2019.

(2) This Part applies only to injuries received on or after 21 October 2019.

cl 8: Am 2016 (602), cl 3; 2017 (67), cl 3; 2017 (506), cl 3; 2018 (90), cl 3; 2018 (524), cl 3. Renumbered as Sch 8, cl 41, 2018 No 62, Sch 5.2 [1]. Ins 2019 (455), Sch 1[2]. Subst 2019 (616), cl 3(1).

8AA

Definitions

8AA Definitions

In this Part—

pre-injury average weekly earnings agreement—see clause 8H.

the relevant earning period has the same meaning as in clause 2(2) of Schedule 3 to the 1987 Act.

unadjusted earning period—see clause 8A(3).

cll 8AA: Ins 2019 (616), cl 3(1).

8AB

Minimum amount of pre-injury average weekly earnings—Schedule 3, clause 2(4)

8AB Minimum amount of pre-injury average weekly earnings—Schedule 3, clause 2(4)

For the purposes of clause 2(4) of Schedule 3 to the 1987 Act, the amount of $155 is prescribed as the minimum amount applicable to a worker.

cll 8AB: Ins 2019 (616), cl 3(1).

Division 2

Relevant earning period

Division 2 Relevant earning period

pt 4, div 2: Ins 2019 (455), Sch 1[2].

Operation of Division

8A Operation of Division

(1) This Division provides for the adjustment of the relevant earning period under clause 2(2) of Schedule 3 to the 1987 Act for a worker in employment for the purposes of calculating the pre-injury average weekly earnings in relation to the worker.

(2) The relevant earning period in respect of the employment is to be adjusted in accordance with the provisions of this Division in the following order—

(a) Clause 8B (Adjustment for workers not continuously employed),

(b) Clause 8C (Adjustment for financially material change to earnings),

(c) Clause 8D (Alignment of relevant earning period with pay period),

(d) Clause 8E (Adjustment for unpaid leave),

(e) Clause 8EA (Adjustment for prescribed periods relating to COVID-19).

(3) Accordingly, a reference in a provision of this Division—

(a) to the relevant earning period is a reference to the relevant earning period as adjusted in accordance with any preceding provision applicable to the worker, or

(b) to the unadjusted earning period is a reference to the relevant earning period as so adjusted, but without regard to any adjustment under the provision in which the expression is used.

cl 8A: Ins 2019 (455), Sch 1[2]. Am 2020 (625), Sch 1[1].

Adjustment for workers not continuously employed—Schedule 3, clause 2(3)(a) of 1987 Act

8B Adjustment for workers not continuously employed—Schedule 3, clause 2(3)(a) of 1987 Act

(1) The relevant earning period for a worker in employment is to be adjusted in accordance with this clause if the worker was not engaged in the employment from the beginning of the unadjusted earning period.

(2) The relevant earning period for the worker in the employment is to be adjusted by excluding any period before the day on which the worker was first engaged in the employment.

cll 8B–8E: Ins 2019 (455), Sch 1[2].

Adjustment for financially material change to earnings—Schedule 3, clause 2(3)(a) of 1987 Act

8C Adjustment for financially material change to earnings—Schedule 3, clause 2(3)(a) of 1987 Act

(1) The relevant earning period for a worker is to be adjusted in accordance with this clause if, during the unadjusted earning period, there was a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker (for example, a change from full-time to part-time work).

(2) The relevant earning period is to be adjusted by excluding from the period any period before the change to the earnings of the worker occurred.

cll 8B–8E: Ins 2019 (455), Sch 1[2].

Alignment of relevant earning period with pay period—Schedule 3, clause 2(3)(b) of 1987 Act

8D Alignment of relevant earning period with pay period—Schedule 3, clause 2(3)(b) of 1987 Act

(1) The relevant earning period for a worker in employment may be adjusted to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.

(2) The relevant earning period is not to be adjusted as provided by this clause unless the insurer is reasonably satisfied that the amount of pre-injury average weekly earnings calculated by reference to the period as so adjusted is not less than the amount that it would have been but for the adjustment.

cll 8B–8E: Ins 2019 (455), Sch 1[2].

Adjustment for unpaid leave—Schedule 3, clause 2(3)(a) of 1987 Act

8E Adjustment for unpaid leave—Schedule 3, clause 2(3)(a) of 1987 Act

(1) The relevant earning period for a worker is to be adjusted in accordance with this clause if, during any period of not less than seven consecutive calendar days within the unadjusted earning period—

(a) no earnings in the employment were paid or payable to the worker, and

(b) the worker took a period of unpaid leave (the unpaid leave period) commencing on the first day of that consecutive period.

(2) The relevant earning period is to be adjusted by excluding each day (whether or not the day was a usual work day for the worker) of the period commencing on the first day of the unpaid leave period and ending immediately before the day on which earnings in the employment once again became payable to the worker.

cll 8B–8E: Ins 2019 (455), Sch 1[2].

8EA

Adjustment for prescribed periods relating to COVID-19—Schedule 3, clause 2(3)(a) of 1987 Act

8EA Adjustment for prescribed periods relating to COVID-19—Schedule 3, clause 2(3)(a) of 1987 Act

(1) The relevant earning period for a worker in employment is to be adjusted in accordance with this clause if, during the unadjusted earning period, there was a change to the worker’s employment arrangements as a direct result of the impact of the COVID-19 pandemic on the operations or general financial position of an employer of the worker.

(2) If the change to the worker’s employment arrangements resulted in a financially material reduction to the total earnings of the worker during the first prescribed period, the relevant earning period is to be adjusted by excluding the first prescribed period.

(3) The relevant earning period for a worker to whom subclause (2) applies is to be further adjusted in accordance with subclause (4) if the change to the worker’s employment arrangements resulted in no earnings in employment being paid or payable to the worker for a period of 2 or more days commencing on the first day of the second prescribed period.

(4) For subclause (3), the relevant earning period is to be further adjusted by excluding each day, whether or not the day was a usual work day for the worker, of the period commencing on the first day of the second prescribed period and ending on the earlier of—

(a) the day immediately before the day on which earnings in any employment once again became payable to the worker, and

(b) the last day of the second prescribed period.

(5) In this clause—

first prescribed period means the period on and from 23 March 2020 to 14 June 2020.

second prescribed period means the period on and from 15 June 2020 to 27 September 2020.

cl 8EA: Ins 2020 (625), Sch 1[2].

Division 3

Pre-injury average weekly earnings—short-term workers, apprentices, trainees and young people

Division 3 Pre-injury average weekly earnings—short-term workers, apprentices, trainees and young people

pt 4, div 3 (cll 8F, 8G): Ins 2019 (455), Sch 1[2].

Pre-injury average weekly earnings for short-term workers—Schedule 3, clause 4(2) of 1987 Act

8F Pre-injury average weekly earnings for short-term workers—Schedule 3, clause 4(2) of 1987 Act

(1) In determining the earnings that a worker could reasonably have been expected to have earned in employment for the purposes of clause 4(1) of Schedule 3 to the 1987 Act, the following matters are to be taken into account—

(a) any contract of employment made before the date of the injury,

(b) any award or agreement relating to the employment,

(c) any hours worked or earnings received by the worker during the period of 52 weeks before the injury.

(2) If the consideration of those matters does not reasonably assist in determining the earnings that the worker could reasonably have been expected to have earned in the employment, the earnings are to be determined by having regard to the average weekly amount earned during the period of 52 weeks before the injury by other persons for the performance of similar work as the worker (whether or not with the worker’s employer).

pt 4, div 3 (cll 8F, 8G): Ins 2019 (455), Sch 1[2].

Pre-injury average weekly earnings of apprentices, trainees and young people—Schedule 3, clause 5(3)(c) of 1987 Act

8G Pre-injury average weekly earnings of apprentices, trainees and young people—Schedule 3, clause 5(3)(c) of 1987 Act

(1) For the purposes of clause 5(3)(c) of Schedule 3 to the 1987 Act, the worker’s pre-injury average weekly earnings are to be determined by having regard to the average weekly amount earned during the latest earning stage—

(a) by other persons who have attained the age of 21 years, and

(b) for the performance by those persons of similar work as the worker (whether or not with the worker’s employer).

(2) If there are no persons who have attained that age and who are so employed and performing similar work as the worker, the worker’s pre-injury average weekly earnings is the maximum weekly compensation amount.

(3) In this clause—

latest earning stage means the period of 52 weeks before the worker attained the age of 21 years.

pt 4, div 3 (cll 8F, 8G): Ins 2019 (455), Sch 1[2].

Division 4

Pre-injury average weekly earnings agreements

Division 4 Pre-injury average weekly earnings agreements

pt 4, div 4: Ins 2019 (455), Sch 1[2].

Operation of Division

8H Operation of Division

(1) This Division sets out matters relating to an agreement between a worker and the employer as to the amount of pre-injury average weekly earnings that is to apply to the worker for the purposes of Division 2 of Part 3 of the 1987 Act (a pre-injury average weekly earnings agreement).

(2) An obligation of the insurer to determine an application for approval of a pre-injury average weekly earnings agreement under this Division ceases if the insurer disputes liability for the weekly payments of compensation.

(3) An agreement approved under this Division ceases to have effect for the purposes of clause 8I if the insurer disputes liability for the weekly payments of compensation.

cl 8H: Ins 2019 (455), Sch 1[2].

Agreements to be approved by insurer—Schedule 3, clause 3(2)

8I Agreements to be approved by insurer—Schedule 3, clause 3(2)

(1) The amount of pre-injury average weekly earnings that applies to a worker for the purposes of Division 2 of Part 3 of the 1987 Act is the amount specified in a pre-injury average weekly earnings agreement (if any) approved by the insurer in accordance with this Division.

Note.

See clause 8H(2) in relation to the cessation of the operation of this Division where liability is disputed.

(2) The amount specified in a pre-injury average weekly earnings agreement under subclause (1) is subject to the minimum amount prescribed under clause 8AB.

cl 8I: Ins 2019 (455), Sch 1[2]. Am 2019 (616), cl 3(2); 2020 (154), Sch 1[1].

Application for approval of agreement—Schedule 3, clause 3(1)

8J Application for approval of agreement—Schedule 3, clause 3(1)

(1) The worker or the employer may apply for the approval by the insurer of a pre-injury average weekly earnings agreement.

(2) The application is to be made within 5 days after the initial notification to the insurer of the injury (within the meaning of Part 3 of Chapter 7 of the 1998 Act).

(3) The application is to be in writing and is to include each of the following—

(a) the agreed amount of pre-injury average weekly earnings,

(b) the date of the agreement,

(c) the date of the injury and claim number,

(d) the name of the worker and of the employer,

(e) the name and contact details of any person authorised by the employer to enter into the agreement,

(f) details of any other employment in which the worker is engaged,

(g) any supporting information (including, for example, a contract of employment or payslips),

(h) any other information that the worker or the employer considers was taken into account in reaching the agreement,

(i) acknowledgement of the consent of the parties to the agreement.

(4) The worker or the employer may withdraw the application by giving notice in writing to the insurer.

cl 8J: Ins 2019 (455), Sch 1[2].

Approval of agreement—Schedule 3, clause 3(1)

8K Approval of agreement—Schedule 3, clause 3(1)

(1) After receiving an application for approval of a pre-injury average weekly earnings agreement in accordance with clause 8J, the insurer is to determine whether to approve, or refuse to approve, the agreement.

(2) The insurer is to determine the application within 7 days after receiving the application (except as provided by subclause (3)).

(3) If the insurer has a reasonable excuse for not commencing provisional weekly payments of compensation, the insurer is to determine the application within 7 days after the earlier of the following—

(a) the insurer ceases to have a reasonable excuse for not commencing those weekly payments,

(b) the insurer accepts liability for weekly payments of compensation in respect of the injury.

(4) The insurer is to approve a pre-injury average weekly earnings agreement if satisfied that the agreed amount reasonably reflects the worker’s pre-injury earnings (excluding any earnings before or after the period of 52 weeks ending immediately before the date of the injury) and that the agreement is otherwise fair and reasonable.

(5) The insurer must not approve a pre-injury average weekly earnings agreement relating to a worker who is a person under legal incapacity.

(6) The insurer may decide to make weekly payments of compensation on the basis of the agreed amount of pre-injury average weekly earnings until the application for approval of the agreement is determined (an interim payment decision).

(7) For the avoidance of doubt, an interim payment decision is, for the purposes of clause 3 of Schedule 3 to the 1987 Act, a decision that is authorised to be made before the agreement can take effect.

Note.

Clause 3 of Schedule 3 to the 1987 Act provides that certain decisions authorised or required to be made by the regulations are taken not to be work capacity decisions for the purposes of Division 2 of Part 3 of that Act.

(8) The insurer is not to approve a pre-injury average weekly earnings agreement if, before the application for approval of the agreement was made, the insurer made a work capacity decision about the amount of the worker’s pre-injury average weekly earnings.

(9) The insurer is not to make a work capacity decision about the amount of the worker’s pre-injury average weekly earnings before the application for approval of the pre-injury average weekly earnings agreement is determined.

(10) As soon as practicable after an application is determined, the insurer must notify the worker and the employer of the determination.

(11) In this clause—

person under legal incapacity includes the following persons—

(a) a child under the age of 18 years,

(b) an involuntary patient or forensic patient within the meaning of the Mental Health Act 2007,

(c) a person under guardianship within the meaning of the Guardianship Act 1987,

(d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009,

(e) an incommunicate person, being a person with a physical or mental disability that prevents the person from receiving communications, or expressing their will, in relation to their property or affairs.

cl 8K: Ins 2019 (455), Sch 1[2]. Am 2020 (744), Sch 3[1] [2].

Variation of agreement

8L Variation of agreement

(1) Only one pre-injury average weekly earnings agreement may be approved by the insurer in respect of the worker’s claim for weekly payments of compensation.

(2) However, the insurer may approve a variation of the pre-injury average weekly earnings agreement on the application of the worker or the employer if the worker’s entitlement to the use of a non-monetary benefit has been withdrawn on or after the date of the injury concerned.

cll 8L: Ins 2019 (455), Sch 1[2].

Withdrawal of pre-injury average weekly earnings agreement—Schedule 3, clause 3(2) and (3)

8M Withdrawal of pre-injury average weekly earnings agreement—Schedule 3, clause 3(2) and (3)

(1) A party to a pre-injury average weekly earnings agreement approved under this Division may withdraw from the agreement at any time by giving notice in writing to the other party and to the insurer.

(2) Within 7 days after receiving notice of the withdrawal, the insurer is to—

(a) determine the amount of the pre-injury average weekly earnings that applies to the worker for the purposes of Division 2 of Part 3 of the 1987 Act, and

(b) give the worker and the employer notice in writing of the withdrawal from the agreement and of the amount determined in accordance with paragraph (a).

(3) A decision of the insurer under this clause determining the applicable amount of pre-injury average weekly earnings is a work capacity decision and takes effect on the date of the notice under subclause (2)(b).

(4) However, subclause (3) does not limit the application of clause 8N in respect of any payment increase decision.

Note.

See also section 80 of the 1998 Act with respect to the required period of notice for the reduction of weekly payments.

cll 8M: Ins 2019 (455), Sch 1[2].

Division 5

Miscellaneous

Division 5 Miscellaneous

pt 4, div 5 (cl 8N): Ins 2019 (455), Sch 1[2].

Insurer procedures for work capacity decisions—section 44BAA

8N Insurer procedures for work capacity decisions—section 44BAA

(1) Within 14 days after making a payment increase decision, the insurer must pay to the worker the amount of the increase in weekly payments of compensation that has become payable to the worker as a result of the decision.

Maximum penalty—20 penalty units.

(2) A payment increase decision is a work capacity decision about the amount of a worker’s pre-injury average weekly earnings or current weekly earnings that results in an increase in the amount of weekly payments of compensation becoming payable to the worker in respect of any period before the decision is made.

pt 4, div 5 (cl 8N): Ins 2019 (455), Sch 1[2].

Part 5

Return to work assistance

Part 5 Return to work assistance

Liability to pay compensation for work assistance

9 Liability to pay compensation for work assistance

(1) For the purposes of section 64B of the 1987 Act, a pre-injury employer is not liable to pay compensation for the cost of work assistance provided to assist a worker to return to work with a new employer if—

(a) the offer of employment with the new employer is an offer of employment for a period of less than 3 months, or

(b) the offer of employment has not been made in writing.

(2) The person on whom a claim for compensation under section 64B of the 1987 Act is made must, within 14 days after the claim is made, determine the claim by accepting, or disputing, liability to pay the compensation.

(3) Words and expressions used in this clause have the same meaning as in section 64B of the 1987 Act.

Liability to pay compensation for education or training

10 Liability to pay compensation for education or training

(1) For the purposes of section 64C of the 1987 Act, an employer is not liable to pay compensation for the cost of education or training provided to assist a worker to return to work if—

(a) the provision of the education or training is inconsistent with the retraining or employment objectives of the injury management plan established for the worker, or

(b) the education or training is provided by any person or body other than—

(i) an NVR registered training organisation within the meaning of the National Vocational Education and Training Regulator Act 2011 of the Commonwealth, or

(ii) a registered higher education provider within the meaning of the Tertiary Education Quality and Standards Agency Act 2011 of the Commonwealth.

(2) The person on whom a claim for compensation under section 64C of the 1987 Act is made must, within 21 days after the claim is made, determine the claim by accepting, or disputing, liability to pay the compensation.

Part 6

Return-to-work programs under the 1998 Act

Part 6 Return-to-work programs under the 1998 Act

Time within which program to be established

11 Time within which program to be established

(1) A return-to-work program required to be established by a category 1 employer must be established before the expiration of the period of 12 months after the employer becomes a category 1 employer.

(2) A return-to-work program required to be established by a category 2 employer must be established before the expiration of the period of 12 months after the employer becomes a category 2 employer.

(3) The Authority may, in a particular case, extend the period during which a return-to-work program is required to be established.

Note.

Section 52(2)(b) of the 1998 Act requires a return-to-work program to be developed by an employer in consultation with workers of the employer and any industrial union of employees representing those workers.

Offence—failure to establish program

12 Offence—failure to establish program

An employer who fails to establish a return-to-work program under section 52 of the 1998 Act within the period required by this Regulation is guilty of an offence.

Maximum penalty—

(a) in the case of a category 1 employer—20 penalty units, or

(b) in the case of a category 2 employer—5 penalty units.

Standard return-to-work programs for category 2 employers

13 Standard return-to-work programs for category 2 employers

(1) The Authority may prepare (in accordance with the return-to-work guidelines) standard return-to-work programs for category 2 employers generally or for different kinds of category 2 employers.

(2) A category 2 employer may establish a return-to-work program by adopting a relevant standard return-to-work program prepared by the Authority under this clause.

(3) The Authority may include in a compensation claim approved form under section 65(1)(b) of the 1998 Act a copy of any standard return-to-work program prepared under this clause.

Program to comply with return-to-work guidelines etc

14 Program to comply with return-to-work guidelines etc

(1) An employer is not to be regarded as having established a return-to-work program unless the program complies with the return-to-work guidelines and any directions under or requirements of this Regulation.

(2) A category 2 employer who adopts a relevant standard return-to-work program under clause 13 is to be regarded as having duly established a return-to-work program.

Return-to-work guidelines for programs—directions

15 Return-to-work guidelines for programs—directions

(1) The Authority may give an employer directions in writing in connection with any return-to-work program established, or to be established, by the employer to ensure that the program complies with the return-to-work guidelines.

(2) The Authority is to review a direction given by it under this clause if the employer concerned requests a review but need not review any particular direction more than once.

Nomination in programs of approved providers of workplace rehabilitation services

16 Nomination in programs of approved providers of workplace rehabilitation services

(1) A return-to-work program must, if the return-to-work guidelines so require, nominate an approved provider of workplace rehabilitation services (or a list of approved providers) for the purposes of the program.

(2) Consultation on the nomination of an approved provider of workplace rehabilitation services is to be carried out in such circumstances and in the manner that the return-to-work guidelines may provide.

16A

Notification of program

16A Notification of program

A return-to-work program required to be notified to workers under section 52 of the 1998 Act may be notified by way of a computer program designed for use on a smartphone or other mobile device (in addition to any other method authorised by that section).

cl 16A: Ins 2018 (729), Sch 1 [1].

Offence—failure to display or notify program

17 Offence—failure to display or notify program

An employer who fails to display or notify a return-to-work program in accordance with section 52(2)(c) and (d) of the 1998 Act is guilty of an offence.

Maximum penalty—

(a) in the case of a category 1 employer—10 penalty units, or

(b) in the case of a category 2 employer—2 penalty units.

cl 17: Am 2018 (729), Sch 1 [2].

Notification etc of program by category 2 employer

18 Notification etc of program by category 2 employer

A category 2 employer is not required to display or notify a return-to-work program in accordance with section 52(2)(c) and (d) of the 1998 Act—

(a) if the employer provides a copy of the program to any worker who requests a copy or who claims compensation for any injury, or

(b) if the employer makes other appropriate arrangements to ensure that workers have access to a copy of the program.

cl 18: Am 2018 (729), Sch 1 [3].

Category 1 employers must have return-to-work co-ordinator

19 Category 1 employers must have return-to-work co-ordinator

(1) A category 1 employer must—

(a) employ a person to be a return-to-work co-ordinator for injured workers of the employer, being a person who has undergone such training as the return-to-work guidelines may require, or

(b) engage a person in accordance with such arrangements as the return-to-work guidelines may from time to time permit to be a return-to-work co-ordinator for injured workers of the employer.

Maximum penalty—20 penalty units.

(2) The following are examples of the arrangements that the return-to-work guidelines can permit for the purposes of this clause—

(a) the engagement of a person under an arrangement with a person or organisation that provides return-to-work co-ordinators to employers,

(b) an arrangement under which a person is engaged on a shared basis by 2 or more employers.

(3) The return-to-work guidelines can require an employer to obtain the approval of the Authority before entering into an arrangement for the purposes of subclause (1)(b).

(4) The return-to-work guidelines can impose requirements with respect to the training, qualifications and experience of persons who may be engaged to be return-to-work co-ordinators under subclause (1)(b).

Functions of return-to-work co-ordinators

20 Functions of return-to-work co-ordinators

An employer’s return-to-work co-ordinator has such functions as may be specified in the return-to-work guidelines.

Exemptions

21 Exemptions

The following classes of employers, to the extent indicated, are exempt from the requirement to establish a return-to-work program under section 52 of the 1998 Act and from clause 19—

(a) employers (including bodies corporate for strata schemes or strata (leasehold) schemes) who employ domestic or similar workers otherwise than for the purposes of the employer’s trade or business (but only to the extent of the workers concerned),

(b) employers who hold owner-builder permits under the Home Building Act 1989 (but only to the extent of workers employed for the purposes of the work to which the permits relate),

(c) employers (being corporations) who only employ workers who are directors of the corporation,

(d) employers who only employ workers who are members of the employer’s family,

(e) employers who only employ workers who perform work while outside New South Wales,

(f) employers exempted in writing by the Authority (but only to the extent specified in the exemption).

Part 7

Approval of workplace rehabilitation providers

Part 7 Approval of workplace rehabilitation providers

Application for certificate of approval

22 Application for certificate of approval

(1) A person may apply to the Authority for a certificate of approval as a provider of workplace rehabilitation services.

(2) Two or more persons jointly providing, or intending to jointly provide, workplace rehabilitation services may (but are not required to) apply for a joint certificate of approval.

(3) An application must—

(a) be in the approved form, and

(b) contain the particulars and be accompanied by the documents that are required by that form, and

(c) be accompanied by such fee as the Authority may determine.

Determination of application

23 Determination of application

(1) The Authority is to determine an application for a certificate of approval—

(a) by granting a certificate to the applicant in the applicant’s name, or, if there is more than one applicant, in their joint names, or

(b) by refusing to grant a certificate.

(2) In determining an application for a certificate of approval, the Authority is to have regard to—

(a) the application, and

(b) in relation to the applicant or each applicant (if more than one)—

(i) if the applicant is a natural person—the desirability of granting individual approval to natural persons, and

(ii) the capacity of the applicant to comply with the conditions of approval for workplace rehabilitation providers approved by the Authority, and

(iii) any information supplied by a trade union or employer organisation relating to the applicant’s provision of rehabilitation services, and

(iv) any complaint lodged with the Authority against the applicant by a client of the applicant, and

(v) information procured in the course of any interviews with or examination of premises used by the applicant, and

(vi) verification of any references supplied by the applicant, and

(c) any relevant information relating to workers compensation costs and statistics concerning the return to work of injured workers, and

(d) any other matters that the Authority thinks fit.

(3) The Authority must not grant a certificate unless—

(a) in the case of an application by a natural person or natural persons—the Authority is of the opinion that the applicant or each applicant is a fit and proper person to hold a certificate and is of or above the age of 18 years, and

(b) in the case of an application by a corporation—

(i) the Authority is of the opinion that the corporation is a fit and proper person to hold a certificate, and

(ii) each director of the corporation would, if the application had been made by the director, be a fit and proper person to be granted a certificate.

Form of certificate of approval

24 Form of certificate of approval

(1) A person may be granted a certificate of approval in respect of one or more of the following classes of approval—

(a) a provider of services related to return to work with the pre-injury employer,

(b) a provider of services related to return to work with a different employer,

(c) a provider of specialist workplace rehabilitation services.

(2) A certificate is to be in the approved form and is to specify—

(a) the name of the person or, in the case of a joint certificate, the names of the persons to whom the certificate is granted, and

(b) the class or classes of approval for which the certificate is granted.

Holder of certificate to comply with conditions

25 Holder of certificate to comply with conditions

(1) It is a requirement of every certificate of approval that the holder of the certificate must comply with the conditions for approval for workplace rehabilitation providers approved by the Authority that are appropriate for the class or classes of approval for which the certificate is granted, being conditions of which the holder has been notified.

(2) A certificate may be granted subject to such other conditions as may be specified in the certificate.

(3) The Authority may, by notice in writing served on the holder of a certificate, amend or revoke the conditions specified in the certificate or add to those conditions.

(4) Any such amendment, revocation or addition takes effect on and from a date specified in the Authority’s notice, being a date at least 7 days after the notice is served on the holder of the certificate.

Amendment of certificate

26 Amendment of certificate

(1) The Authority may amend a certificate—

(a) on the application of a person who does not hold a certificate and proposes to provide a workplace rehabilitation service jointly with the holder of a certificate, by adding the name of the person as a joint holder of the certificate, or

(b) on the application of a joint holder of a certificate who ceases to provide workplace rehabilitation services, by deleting the person’s name from the certificate, or

(c) on the application of a holder of a certificate, by amending the specification of the class or classes of approval for which the certificate is granted.

(2) An application under this clause must—

(a) be in the approved form, and

(b) contain the particulars and be accompanied by the documents that are specified in that form, and

(c) be accompanied by such fee as the Authority may determine.

(3) The Authority is to determine an application under this clause—

(a) by granting the application and amending the certificate accordingly, or

(b) by refusing the application.

(4) If an application referred to in subclause (1)(a) is granted and the certificate is amended by specifying in the certificate the name of the person concerned, that person is taken to be a person to whom the certificate is granted.

Notice of refusal

27 Notice of refusal

(1) If the Authority refuses to grant or amend a certificate of approval, the Authority must as soon as practicable cause notice of the refusal to be served on the applicant.

(2) In the case of a joint application, it is a sufficient compliance with subclause (1) if the notice of refusal is served on any one of the applicants.

(3) The Authority is taken to have refused to grant or amend a certificate (and is taken to have notified the applicant accordingly) if the Authority does not give a decision on an application within 4 months after the date of lodgment of the application.

Duration of certificates

28 Duration of certificates

(1) A certificate of approval remains in force, unless sooner cancelled or surrendered, for the period determined by the Authority and specified in the certificate.

(2) A certificate may be renewed from time to time by the grant of a further certificate.

Surrender of certificates

29 Surrender of certificates

A holder of a certificate of approval may surrender it by delivering it to the Authority with notice in writing that the certificate is surrendered.

Duplicate certificates

30 Duplicate certificates

If the Authority is satisfied that a certificate of approval has been lost or destroyed, the Authority may, on payment of such fee as the Authority may determine, issue a duplicate certificate.

Register of certificates

31 Register of certificates

(1) The Authority is to cause a register of certificates of approval to be kept, in the form determined by the Authority, and is to cause to be recorded in the register in respect of each certificate—

(a) the matters required by this Regulation to be specified in the certificate, and

(b) particulars of any amendment of the certificate, and

(c) particulars of any cancellation, suspension or surrender of the certificate, and

(d) any other matters that the Authority thinks fit.

(2) The Authority may cause to be made such alterations of the register that are necessary to ensure that the register is an accurate record.

(3) The register may be inspected by any person at the office of the Authority during the Authority’s usual office hours and copies of all or any part of the register may be taken on payment of such fee as the Authority may determine.

False or misleading statements

32 False or misleading statements

A person must not, in or in connection with an application for a certificate of approval or amendment of such a certificate, make any statement which the person knows to be false or misleading in a material particular.

Maximum penalty—20 penalty units.

Cancellation or suspension of certificate

33 Cancellation or suspension of certificate

(1) The Authority may cancel or suspend a certificate of approval if the Authority is satisfied—

(a) that the holder of the certificate has made a statement in or in connection with an application for the certificate or amendment of the certificate that the holder knows to be false or misleading in a material particular, or

(b) that the holder of the certificate has contravened a condition of the certificate, or

(c) that the holder of the certificate has been convicted of an offence involving fraud or dishonesty punishable on conviction by imprisonment for 3 months or more, or

(d) that the holder of the certificate, not being a corporation, has become bankrupt, applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with creditors or made an assignment of remuneration for their benefit, or

(e) that the holder of the certificate, being a corporation—

(i) is in the course of being wound up, or

(ii) is under administration, or

(iii) is a corporation in respect of the property of which a receiver or manager (or other controller within the meaning of the Corporations Act 2001 of the Commonwealth) has been appointed, or

(iv) has entered into a compromise or arrangement with its creditors, or

(f) that the holder of the certificate has not provided workplace rehabilitation services for a continuous period of 3 months or more, or

(g) that the holder of the certificate is for any other reason not a fit and proper person to hold a certificate, or

(h) in the case of a holder of a certificate, being a corporation—that any director of the corporation—

(i) has been convicted of an offence referred to in paragraph (c), or

(ii) for any other reason would not be a fit and proper person to hold a certificate, if the certificate were held by the person.

(2) The grounds referred to in subclause (1) (except paragraph (f)) are taken to exist—

(a) in the case of a joint certificate—if those grounds apply to any holder of that certificate, or

(b) in the case of 2 or more certificates held by persons providing workplace rehabilitation services in partnership—if those grounds apply to any holder of any of those certificates.

(3) Before cancelling or suspending a certificate, the Authority must give the holder of the certificate an opportunity to show cause why the certificate should not be cancelled or suspended on such grounds as are notified to the holder.

(4) The cancellation or suspension of a certificate does not take effect until notice in writing of the cancellation or suspension has been served on the holder of the certificate.

False claim of approval

34 False claim of approval

A person must not falsely hold himself or herself out as being the holder of a certificate of approval.

Maximum penalty—20 penalty units.

Part 8

Notices and claims procedure

Part 8 Notices and claims procedure

Notification of workplace injury

35 Notification of workplace injury

(1) For the purposes of section 44(2) of the 1998 Act, notification to an insurer or the Nominal Insurer by an employer that a worker has received a workplace injury must be given in any of the following ways—

(a) by electronic communication (using a mode of electronic communication approved by the insurer or the Nominal Insurer) providing the information requested by the insurer or the Nominal Insurer,

(b) in writing by completing a notification form approved for the purpose by the insurer or the Nominal Insurer and sending the completed form to the insurer or the Nominal Insurer by post or facsimile transmission at the address or facsimile number indicated on the form, or by completing and lodging the form in person at an office of the insurer or the Nominal Insurer,

(c) by telephone to the insurer or the Nominal Insurer, giving such information as may be requested of the caller.

(2) An employer who gives a notification under section 44(2) of the 1998 Act must make and keep for at least 5 years after the notification is given—

(a) a record of the date, time, place and nature of the injury to which the notification relates, and

(b) a record of the date on which and the way in which the notification was given, and

(c) a record of any acknowledgment (such as a receipt number) given to the employer by the insurer or the Nominal Insurer as evidence of receipt of the notification.

Note.

An entry in the register of injuries kept under section 256 of the 1998 Act is a sufficient record of an injury for the purposes of this clause. The record of an acknowledgment of the notification can also be made and kept as part of the register of injuries.

(3) An employer must make the records kept under subclause (2) available for inspection in accordance with, and in any event no later than 7 days after the date of, a request by—

(a) an authorised officer, or

(b) if any employee of the employer is a member of an industrial organisation of employees—an authorised employee representative of that organisation.

(4) In this clause—

authorised employee representative of an industrial organisation of employees, means a person who is an authorised industrial officer within the meaning of Part 7 of Chapter 5 of the Industrial Relations Act 1996 in respect of that industrial organisation of employees.

authorised officer means an inspector under section 238 of the 1998 Act.

Maximum penalty—20 penalty units.

Employer must give early notification of workplace injury

36 Employer must give early notification of workplace injury

A person who fails to comply with section 44(2) of the 1998 Act is guilty of an offence.

Maximum penalty—20 penalty units.

Notice of injury involving loss of hearing

37 Notice of injury involving loss of hearing

(1) If an injury is a loss, or further loss, of hearing that is of such a nature as to be caused by a gradual process (including boilermaker’s deafness and any deafness of a similar origin)—

(a) notice of injury is to be given by the worker under section 61 of the 1998 Act—

(i) if the worker is employed by an employer in an employment to the nature of which the injury is due to that employer, or

(ii) if the worker is not so employed, to the last employer by whom the worker was employed in an employment to the nature of which the injury is due, and

(b) the notice must be in writing and be in the approved form.

(2) Any forms issued by insurers and self-insurers for the giving of notice by workers of an injury referred to in subclause (1) must also contain such information (if any) as the Authority may from time to time approve and notify to insurers and self-insurers.

Notice of insurer decisions

38 Notice of insurer decisions

(1) A notice under section 78 of the 1998 Act of an insurer’s decision to dispute liability in respect of a claim or any aspect of a claim (except in connection with a work injury damages matter), or to discontinue or reduce the amount of weekly payments of compensation, is to contain the following information—

(a) a statement identifying all the reports and documents submitted by the worker in making the claim for compensation, and by the employer in connection with the claim,

(b) a statement identifying all the reports of the type to which clause 41 applies that are relevant to the decision, whether or not the reports support the reasons for the decision,

(c) a statement advising that a copy of a report required to be provided by the insurer under clause 41(3) (except as provided by clause 41(5) or (6)) accompanies the notice,

(d) details of the procedure for requesting a review of the decision,

(e) a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, from an Australian legal practitioner, from the Independent Review Officer or from any other relevant service established by the Authority,

(f) the contact details for the Independent Review Officer,

(g) the street address and the email address of the President,

(h) a summary, in the approved form, of the effect of the decision, the worker’s rights of review, the procedure for requesting a review and the legal and other services that may be available to the worker to provide advice or assistance in relation to the dispute.

(2) If the notice relates to a decision to discontinue weekly payments of compensation, the insurer must give a copy of the summary referred to in subclause (1)(h) to any current employer of the worker who is liable to pay the compensation (except in circumstances where the compensation is paid by the insurer).

cl 38: Subst 2018 (729), Sch 1 [4]. Am 2020 (744), Sch 3[3].

38A

Notice of insurer decisions—work injury damages

38A Notice of insurer decisions—work injury damages

A notice under section 78 of the 1998 Act of an insurer’s decision to dispute liability in a work injury damages matter is to contain the following information—

(a) a statement to the effect that, before a claimant can commence court proceedings, the claimant must firstly serve a pre-filing statement (in accordance with section 315 of the 1998 Act) on the defendant and secondly refer the claim to the Commission for mediation (in accordance with section 318A of the 1998 Act),

(b) a statement to the effect that the claimant is not entitled to raise matters in court proceedings that are materially different from those contained in the pre-filing statement, except with the leave of the court,

(c) a statement identifying all the reports and documents submitted by the worker in making the claim for compensation,

(d) a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, from an Australian legal practitioner or from any relevant service established by the Authority,

(e) the street address and the email address of the President or the Principal Registrar (within the meaning of the District Court Act 1973) of the District Court.

cl 38A: Ins 2018 (729), Sch 1 [4]. Am 2020 (744), Sch 3[3].

38B

Notice requirements—coal miners

38B Notice requirements—coal miners

A notice under section 74 of the 1998 Act of an insurer’s decision to dispute liability in a coal miner matter is to contain the following information—

(a) a statement identifying all the reports and documents submitted by the worker in making the claim for compensation,

(b) a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, from an Australian legal practitioner or from any relevant service established by the Authority,

(c) a statement to the effect that the worker can refer the dispute for determination by the District Court,

(d) if the insurer has referred or proposes to refer the dispute for determination by the District Court, a statement to that effect specifying the date of referral or proposed referral,

(e) a statement to the effect that the matters that may be referred to the District Court are limited to matters notified in the notice, in a notice after a further review in correspondence prior to any such referral concerning an offer of settlement or in a request for a further review, except with the leave of the District Court,

(f) the street address and the email address of the Principal Registrar (within the meaning of the District Court Act 1973) of the District Court.

Note.

The repeal of section 74 of the 1998 Act by the Workers Compensation Legislation Amendment Act 2018 does not apply to coal miners. See clause 5 of Part 19L of Schedule 6 to the 1987 Act.

cl 38B: Ins 2018 (729), Sch 1 [4].

Form of notice to be posted up at workplace

39 Form of notice to be posted up at workplace

(1) For the purposes of section 231(1) of the 1998 Act—

(a) a summary of the requirements of that Act with regard to the giving of notice of injuries and the making of claims is to be in the approved form, and

(b) other information required to be posted up in accordance with that section is the other information contained in the approved form.

(2) An approved form that ceases to be an approved form (as a result of the amendment or substitution of an approved form) continues to be an approved form for the purposes of a notice posted up under section 231 of the 1998 Act that was in that form immediately before it ceased to be an approved form, but only until the earlier of—

(a) the renewal or replacement of the notice, or

(b) 12 months after the form ceases to be an approved form.

Form of register of injuries to be kept at workplace

40 Form of register of injuries to be kept at workplace

(1) The register of injuries required to be kept under section 256 of the 1998 Act may be kept in written or electronic form.

(2) The register of injuries may be kept in electronic form only if the employer provides education, training and facilities to ensure that workers are able to access the register.

(3) The particulars to be entered in the register of injuries are the following—

(a) the name of the injured worker,

(b) the worker’s address,

(c) the worker’s age at the time of injury,

(d) the worker’s occupation at the time of injury,

(e) the industry in which the worker was engaged at the time of injury,

(f) the time and date (or deemed date) of injury,

(g) the nature of the injury,

(h) the cause of the injury.

Access to certain medical reports and other reports obtained by insurer

41 Access to certain medical reports and other reports obtained by insurer

(1) This clause applies to the following types of reports that an employer or insurer has in the employer’s or insurer’s possession—

(a) medical reports, including medical reports provided pursuant to section 119 (Medical examination of workers at direction of employer) of the 1998 Act,

(b) certificates of capacity,

(c) clinical notes,

(d) investigators’ reports,

(e) workplace rehabilitation providers’ reports,

(f) health service providers’ reports,

(g) reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made.

(2) This clause applies to the following decisions of an employer or insurer relating to an injured worker—

(a) a decision to dispute liability in respect of a claim, or any aspect of a claim (in circumstances requiring the insurer to give the worker a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act),

(b) a decision to discontinue payment, or to reduce the amount of weekly benefits (in circumstances requiring the insurer to give the worker a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act),

(c) a decision on the review under section 287A of the 1998 Act of a decision described in paragraph (a) or (b) that confirms the original decision.

(3) For the purposes of sections 73(1) and 126(2) of the 1998 Act, if an employer or insurer makes a decision to which this clause applies, the employer or insurer must provide a copy of any relevant report to which this clause applies to the worker, as an attachment to a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act or section 287A of the 1998 Act, as the case may be, except where the report has already been supplied to the worker and that report is identified in a statement under clause 38(1)(d).

(4) The obligation in this clause to provide a copy of a report applies to any report that is relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reasons for the decision.

(5) If the employer or insurer is of the opinion that supplying a worker with a copy of a report would pose a serious threat to the life or health of the worker or any other person, the employer or insurer may instead supply the report—

(a) in the case of a medical report, certificate of capacity or clinical notes—to a medical practitioner nominated by the worker for that purpose, or

(b) in any other case—to a law practice representing the worker.

(6) If, on the application of an employer or insurer, the Authority is satisfied that supplying the worker with a copy of the report would pose a serious threat to the life or health of the worker or any other person and that supplying the report as provided by this clause would not be appropriate, the Authority may—

(a) direct that the report be supplied to such other persons as the Authority considers appropriate, or

(b) make such other directions as the Authority thinks fit.

cl 41: Am 2018 No 62, Sch 1.3 [5].

Interim payment direction not presumed to be warranted

42 Interim payment direction not presumed to be warranted

For the purposes of section 297(3)(e) of the 1998 Act, it is not to be presumed that an interim payment direction for weekly payments of compensation is warranted in circumstances where the insurer has given the worker notice under section 78 of the 1998 Act (Insurer to give notice of decisions).

cl 42: Am 2018 No 62, Sch 1.3 [6].

42A

Review of decisions by insurer

42A Review of decisions by insurer

(1) A request under section 287A of the 1998 Act for a review of a decision of an insurer must be in writing.

(2) The insurer must consider any relevant material submitted by the worker in connection with the request.

(3) The request must not be dealt with by any person substantially involved in making the decision the subject of the request.

cll 42A: Ins 2018 (729), Sch 1 [5].

42B

Notice of review decision

42B Notice of review decision

A notice under section 287A of the 1998 Act of an insurer’s decision on a review is to—

(a) be in writing, and

(b) contain the information referred to in clause 38(1), and

(c) contain a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision, and

(d) identify any provision of the workers compensation legislation on which the insurer relies in making the decision.

cll 42B: Ins 2018 (729), Sch 1 [5].

Part 9

Restrictions on obtaining medical reports

Part 9 Restrictions on obtaining medical reports

Definitions

43 Definitions

In this Part—

claim means a claim for compensation payable or claimed to be payable under the 1987 Act.

medical assessor has the same meaning as in the 1998 Act.

proceedings means proceedings before the Commission or the District Court.

work injury damages threshold dispute means a dispute within the meaning of section 314 of the 1998 Act.

cl 43: Am 2020 (744), Sch 3[4].

Restrictions on number of medical reports that can be admitted

44 Restrictions on number of medical reports that can be admitted

(1) In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.

(2) A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.

(3) Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.

(4) In this clause—

forensic medical report, in relation to a claim or dispute—

(a) means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and

(b) includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act, and

(c) does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.

Supplementary reports admissible

45 Supplementary reports admissible

(1) Despite clauses 44 and 46, a medical report other than the original report (a supplementary report) may be admitted if—

(a) it has the purpose of clarifying the original report, for example, where it can be shown that there has been some omission in relation to the material originally provided that could lead to an opinion in the original report being expressed on the basis of inaccurate or incomplete information and it does not go outside the parameters of the original report, but merely confirms, modifies or retracts an opinion expressed in the original report, or

(b) it has the purpose of updating the original report by confirming, modifying or retracting an opinion expressed in the original report, or

(c) it has the purpose of addressing issues omitted from the original report, or

(d) it has the purpose of addressing an opinion in the other party’s medical report.

(2) A supplementary report can be provided as an addendum to the original report and in any such case the original report together with that addendum constitute the report referred to in clauses 44 and 46.

(3) A supplementary report must have been provided by the medical practitioner who provided the original report except when the medical practitioner has ceased (permanently or temporarily) to practise in the specialty concerned, in which case the supplementary report must be provided by another medical practitioner of the same specialty.

Restriction on disclosure of forensic medical reports to medical assessors

46 Restriction on disclosure of forensic medical reports to medical assessors

(1) A forensic medical report must be disclosed to a medical assessor in connection with a claim or a work injury damages threshold dispute if any of the following occurs—

(a) the report was admitted in proceedings on the claim or dispute,

(b) no decision has been made as to whether or not the report is to be admitted, and—

(i) the report was the report nominated by the claimant or respondent as the report that the claimant or respondent concerned would introduce into evidence in proceedings on the claim, or

(ii) the report was the sole report in the particular specialty concerned that was lodged in relation to the claim by the claimant or respondent, as the case may be,

(c) the medical assessor calls for the production of the report under section 324(1)(b) of the 1998 Act.

(2) A forensic medical report is not to be disclosed to a medical assessor in connection with a claim or a work injury damages threshold dispute otherwise than in accordance with this clause.

(3) Nothing in this clause permits more than one forensic medical report of the type referred to in clause 44 to be disclosed to a medical assessor on behalf of a party to proceedings.

(4) In this clause—

forensic medical report—

(a) means a report from a specialist who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of a claim or dispute, and

(b) includes a medical report provided by a medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act.

cl 46: Am 2020 (744), Sch 3[5]–[7].

Restrictions on recovery of cost of medical reports

47 Restrictions on recovery of cost of medical reports

(1) A party to proceedings on a claim is not entitled to be paid for or recover the cost of a medical report in connection with the claim unless—

(a) the report has been admitted into those proceedings on behalf of the party, or

(b) the report has been disclosed to a medical assessor.

(2) A party to a claim where no proceedings have been taken is not entitled to be paid for or recover the cost of a medical report in connection with the claim unless the report has been served on another party, and—

(a) the report would be admissible in proceedings on behalf of the party, or

(b) the report could be disclosed to a medical assessor.

(3) In this clause—

(a) a reference to a claim includes a reference to an initial notification of injury (as defined in Part 3 of Chapter 7 of the 1998 Act), and

(b) a reference to proceedings on a claim includes a reference to proceedings in respect of the payment of provisional weekly payments of compensation under the 1998 Act.

cll 47: Am 2020 (744), Sch 3[6].

Medical treatment not affected

48 Medical treatment not affected

This Part does not affect any entitlement of an injured worker to be paid for or recover the cost of obtaining medical treatment.

Reports of medical panels and referees not affected

49 Reports of medical panels and referees not affected

This Part does not apply in respect of a medical report provided by a medical assessor under Part 7 of Chapter 7 of the 1998 Act in respect of the assessment of a new claim within the meaning of that Chapter.

cll 49: Am 2020 (744), Sch 3[6].

Part 10

Insurance policies

Part 10 Insurance policies

Administration fees and late payment fees for exempt employers

50 Administration fees and late payment fees for exempt employers

(1) The amount of $175 is prescribed as the administration fee payable under section 155AA(5) of the 1987 Act.

(2) The Nominal Insurer may serve a notice in writing on an employer to whom section 155AA(5) of the 1987 Act applies notifying the employer that the administration fee referred to in that subsection is due and payable.

(3) The administration fee referred to in subclause (2) must be paid by the employer within one month of the service of the notice.

(4) A late payment fee calculated at the prescribed rate (within the meaning of section 172 of the 1987 Act) applicable to a policy of insurance issued or renewed on the date that notice was served is payable if an administration fee is not paid within the one month period referred to in subclause (3).

(5) The Authority may waive payment (either in full or in part) of an administration fee or late payment fee payable under section 155AA of the 1987 Act.

(6) The Nominal Insurer is to pay any administration fees and late payment fees it has received under section 155AA of the 1987 Act into the Insurance Fund. Administration fees paid into the Insurance Fund are to be treated as premiums payable under policies of insurance.

Provisions of policies of insurance

51 Provisions of policies of insurance

For the purposes of section 159 of the 1987 Act, a policy of insurance—

(a) must contain the provisions specified in Schedule 3, and

(b) may contain any other provisions, but only if those provisions have been agreed on by the insurer and employer concerned and approved by the Authority.

Excess recoverable from employer

52 Excess recoverable from employer

(1) A weekly compensation claim made in respect of a worker who receives an injury in the circumstances referred to in section 11 (Recess claims) of the 1987 Act is prescribed for the purposes of section 160(8)(b) of the 1987 Act.

(2) Exempt employer policies (within the meaning of section 155AA of the 1987 Act) are exempt from section 160 of the 1987 Act.

Information to be provided for certificate of currency

53 Information to be provided for certificate of currency

(1) An employer who requests an insurer to provide a certificate of currency with respect to a policy of insurance must provide the insurer with a statement in an approved form that contains a reasonable estimate of the wages that will be payable during the current period of insurance to workers employed by the employer.

(2) An insurer may refuse to issue the requested certificate of currency until the employer complies with this clause.

Certificate of currency—period of insurance

54 Certificate of currency—period of insurance

For the purposes of the definition of certificate of currency in section 163A(1) of the 1987 Act, a period not exceeding 12 months is prescribed.

Liability for subcontractor premiums—exemption for farming operations

55 Liability for subcontractor premiums—exemption for farming operations

(1) Any work carried out before 1 July 2004 under a contract for the carrying out of work on a farm on which a farmer engages in a farming operation is exempt from the operation of section 175B of the 1987 Act if the farmer is the principal contractor and the work is an aspect of the work of the farming operation (and is not an aspect of the work of any other business undertaking of the farmer).

(2) In this clause—

farmer means a person who is engaged in a farming operation and includes a person who owns land cultivated under a share-farming agreement.

farming operation means a farming (including dairy farming, poultry farming, bee farming and aquaculture), pastoral, horticultural or grazing operation.

Employers excluded from grouping provisions

56 Employers excluded from grouping provisions

(1) For the purposes of section 175D(2)(c)(ii) of the 1987 Act, the amount of $750,000 is prescribed in relation to a policy of insurance issued at or after 4 pm on 30 June 2014.

(2) The following employers are excluded from the operation of Division 2A (Grouping of employers for insurance purposes) of Part 7 of the 1987 Act—

(a) an employer who is insured with a specialised insurer,

(b) an employer who is insured where the policy of insurance relates only to private household domestic workers.

Part 11

Modification of provisions applying to self-insurers

Part 11 Modification of provisions applying to self-insurers

Interpretation

57 Interpretation

(1) When one or more subsidiaries of the holder of a licence as a self-insurer under the 1987 Act is endorsed on the licence, each of those endorsed subsidiaries and the licence holder are group self-insurers for the purposes of this Part.

(2) The holder of a licence as a group self-insurer may for the purposes of this Part, by notice in writing to the Authority from time to time, designate any one or more of the group self-insurers covered by the licence as designated insurer for some or all of the group self-insurers. The licence holder can designate itself as a designated insurer.

(3) Except where otherwise expressly provided, this Part provides for the modification of provisions of Chapter 3 of the 1998 Act in their application to the following self-insurers—

(a) a self-insurer who is a Government employer covered for the time being by the Government’s managed fund scheme,

(b) a group self-insurer for whom there is a designated insurer.

References to “insurer”

58 References to “insurer”

(1) Sections 43, 44, 45, 47 and 52 of the 1998 Act are to be read as if—

(a) a reference to insurer were, in the case of a self-insurer who is a Government employer covered for the time being by the Government’s managed fund scheme, a reference to the Self Insurance Corporation, and

(b) a reference to insurer were, in the case of a self-insurer for whom there is a designated insurer, a reference to that designated insurer, and

(c) the Self Insurance Corporation were the insurer of each employer who is a Government employer covered for the time being by the Government’s managed fund scheme, and

(d) the designated insurer for a group self-insurer were the insurer of the group self-insurer.

(2) A reference in sections 50 and 58 of the 1998 Act to insurer is to be read as including a reference—

(a) to the Self Insurance Corporation, when the insurer is a Government employer covered for the time being by the Government’s managed fund scheme, and

(b) when the insurer is a group self-insurer for whom there is a designated insurer, to that designated insurer.

Modification of exceptions for self-insurers

59 Modification of exceptions for self-insurers

The following modifications are to be made to the 1998 Act—

(a) section 43(3)—omit “This subsection does not apply to a self-insurer.”,

(b) section 43(4)—omit “(except when the insurer is a self-insurer)”,

(c) section 43(5)—omit “This subsection does not apply when the employer is a self-insurer.”,

(d) omit section 44(4),

(e) section 45(2)—omit “(except when the insurer is a self-insurer)”,

(f) section 45(5)—omit “This subsection does not apply when the insurer is a self-insurer.”,

(g) omit section 46(3).

Preparation of injury management plan

60 Preparation of injury management plan

Section 45(1) of the 1998 Act is replaced with the following subsection—

(1) When it appears that a workplace injury is a significant injury, an injury management plan must be established for the injured worker by—

(a) if the self-insurer who is or may be liable to pay compensation to the injured worker is a Government employer covered for the time being by the Government’s managed fund scheme—the Self Insurance Corporation, or

(b) if the insurer who is or may be liable to pay compensation to the injured worker is a group self-insurer for whom there is a designated insurer—that designated insurer.

Self-insurer’s licence

61 Self-insurer’s licence

(1) A reference in section 55 of the 1998 Act to insurer’s licence is, in the application of that section to a group self-insurer (whether or not a group self-insurer for whom there is a designated insurer), to be read as a reference to the licence as a self-insurer on which the group self-insurer is endorsed.

(2) It is a condition of a licence as a self-insurer that the holder of the licence must ensure that any subsidiary of the holder endorsed on the licence complies with the subsidiary’s obligations under Chapter 3 of the 1998 Act.

Part 12

Workers Compensation Operational Fund

Part 12 Workers Compensation Operational Fund

Definitions

62 Definitions

In this Part—

basic tariff premium and dust diseases contribution have the same meanings respectively as they have in the Insurance Premiums Order 2015–2016 and in the Workers Compensation Market Practice and Premiums Guidelines in force in respect of the relevant financial year.

Definition of “premium income” for purposes of insurers’ contributions

63 Definition of “premium income” for purposes of insurers’ contributions

For the purposes of the contribution payable by an insurer under section 39 of the 1998 Act for a financial year, premium income (as defined in section 4(1) of the 1998 Act) does not include any part of such a premium that is attributable to the application of a dust diseases contribution in the calculation of the premium.

Definition of “deemed premium income” for purposes of self-insurers’ contributions

64 Definition of “deemed premium income” for purposes of self-insurers’ contributions

For the 2017–2018 financial year and each subsequent financial year, the prescribed circumstances referred to in the definition of deemed premium income in section 37 of the 1998 Act are the circumstances in which the amount payable as premiums referred to in that definition is calculated in the manner fixed by the Deemed Premium Income Calculation Methodology, published by the Authority in July 2017.

cl 64: Subst 2017 (319), Sch 1 [1].

Part 13

Deemed employment

Part 13 Deemed employment

Ministers of religion

65 Ministers of religion

For the purposes of clause 17 of Schedule 1 to the 1998 Act, it is declared that the class of persons specified in the Table to Schedule 4 are ministers of religion of the religious body or organisation specified, and are employees of the person specified in that Table.

Note.

See also clause 18 of Schedule 1 to the 1998 Act which provides that if a policy of insurance covers a minister of religion, the minister of religion is taken to be a worker and the person insured under the policy is taken to be the minister’s employer.

Part 14

Insurers’ Guarantee Fund

Part 14 Insurers’ Guarantee Fund

Definitions

66 Definitions

Expressions used in this Part have the same meanings as in Division 7 of Part 7 of the 1987 Act.

Financial years for contributions to Insurers’ Guarantee Fund

67 Financial years for contributions to Insurers’ Guarantee Fund

For the purposes of section 228(1) of the 1987 Act, the financial year commencing 1 July 1989 and any subsequent financial year are prescribed.

Time etc for payment of insurer’s contribution

68 Time etc for payment of insurer’s contribution

The contribution payable by an insurer under section 228 of the 1987 Act in respect of any financial year is payable—

(a) except as provided by paragraph (b), in quarterly instalments (each being equal to one-fourth of the contribution payable) due on the last day of each quarter of the financial year, or

(b) in such other instalments and within such other time as may be determined by the Authority and specified in a notice to the insurer.

Further contributions payable by insurers

69 Further contributions payable by insurers

(1) If the Authority has determined an amount under section 228(1) of the 1987 Act in respect of a financial year, it may subsequently determine under that provision a further amount to be contributed to the Guarantee Fund in respect of that year, being an amount that it considers is necessary—

(a) to satisfy, during that financial year, claims, judgments and awards arising from or relating to policies of insurance issued by insolvent insurers, and

(b) to provide for the payment of any other amounts to be paid under Division 7 of Part 7 of the 1987 Act from the Guarantee Fund during that financial year.

(2) Section 228 of the 1987 Act applies to and in respect of the payment of any such further contribution.

Determination of contributions and further contributions

70 Determination of contributions and further contributions

(1) For the purpose of determining the amount of any contribution (or further contribution) to the Guarantee Fund, the Authority is entitled to rely on an estimate determined by it of the amount required to be contributed by insurers to the Workers Compensation Operational Fund.

(2) If the Authority determines that any change in that estimate is appropriate, it is to re-determine the contributions (or further contributions) of insurers to the Guarantee Fund, and the relevant amounts become payable by, or repayable to, insurers.

Part 15

Penalty notice offences

Part 15 Penalty notice offences

Penalty notice offences

71 Penalty notice offences

For the purposes of section 246 of the 1998 Act—

(a) each of the following offences is declared to be a penalty notice offence—

(i) an offence created by a provision of the 1987 Act specified in Column 1 of Part 1 of Schedule 5,

(ii) an offence created by a provision of the 1998 Act specified in Column 1 of Part 2 of Schedule 5,

(iii) an offence created by a provision of this Regulation specified in Column 1 of Part 3 of Schedule 5, and

(b) the prescribed penalty for such an offence is the amount specified opposite it in Column 2 of Schedule 5, and

(c) the following persons are declared to be authorised officers—

(i) each inspector appointed under the Work Health and Safety Act 2011,

(ii) each member of staff of the Authority authorised by the Authority for the purposes of section 238 of the 1998 Act.

Part 16

Marketing of work injury agent services

Part 16 Marketing of work injury agent services

Definitions

72 Definitions

In this Part—

advertisement means any communication of information (whether by means of writing, or any still or moving visual image or message or audible message, or any combination of them) that advertises or otherwise promotes a product or service, whether or not that is its purpose or only purpose and whether or not that is its only effect.

agent means a person who acts, or holds himself or herself out as willing to act, as an agent for a person for a fee or reward in connection with a claim but does not include a lawyer.

lawyer means an Australian legal practitioner and includes a law practice within the meaning of the Legal Profession Uniform Law (NSW).

practitioner directory means a printed publication, directory or database that is published by a person in the ordinary course of the person’s business (and not by the agent concerned or a partner, employee or member of the practice of the agent).

publish means—

(a) publish in a newspaper, magazine, journal, periodical, directory or other printed publication, or

(b) disseminate by means of the exhibition or broadcast of a photograph, slide, film, video recording, audio recording or other recording of images or sound, either as a public exhibition or broadcast or as an exhibition or broadcast to persons attending a place for the purpose of receiving professional advice, treatment or assistance, or

(c) broadcast by radio or television, or

(d) display on an Internet website or otherwise publicly disseminate by means of the Internet, or

(e) publicly exhibit in, on, over or under any building, vehicle or place or in the air in view of persons in or on any street or public place, or

(f) display on any document (including a business card or letterhead) gratuitously sent or gratuitously delivered to any person or thrown or left on any premises or on any vehicle, or

(g) display on any document provided to a person as a receipt or record in respect of a transaction or bet.

work injury has the same meaning as in the 1998 Act.

Restrictions on advertising work injury services

73 Restrictions on advertising work injury services

An agent must not publish or cause or permit to be published an advertisement that promotes the availability or use of an agent to provide agent services if the advertisement includes any reference to or depiction of any of the following—

(a) work injury,

(b) any circumstance in which work injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of work injury, or any connection to or association with work injury or a cause of work injury,

(c) a work injury service (that is, any service provided by an agent that relates to recovery of money, or any entitlement to recover money, in respect of work injury).

Maximum penalty—200 penalty units.

Exception for advertising specialty

74 Exception for advertising specialty

This Division does not prevent the publication of an advertisement that advertises an agent as being a specialist or offering specialist services, but only if the advertisement is published by means of—

(a) an entry in a practitioner directory that states only the name and contact details of the agent and any area of practice or specialty of the agent, or

(b) a sign displayed at a place of business of the agent that states only the name and contact details of the agent and any specialty of the agent, or

(c) an advertisement on a website operated by the agent the publication of which would be prevented under this Division solely because it refers to work injury or work injury services in a statement of specialty of the agent.

Other exceptions

75 Other exceptions

This Division does not prevent the publication of any advertisement—

(a) to any person who is already a client of the agent (and to no other person), or

(b) to any person on the premises of a place of business of the agent, but only if the advertisement cannot be seen from outside those premises, or

(c) in accordance with any order by a court, or

(d) to the extent that it relates only to legal education and is published to members of the legal profession by a person in the ordinary course of the person’s business or functions as a provider of legal education, or

(e) by an industrial organisation (within the meaning of the Industrial Relations Act 1996) if the advertisement (or so much of it as would otherwise contravene clause 73) relates only to the provision of advice or services by that organisation and states only the name and contact details of the industrial organisation along with a description of the services that it provides, or

(f) that is required to be published by or under a written law of the State.

Responsibility for employees and others

76 Responsibility for employees and others

For the purposes of this Division, evidence that a person who is an employee of an agent, or a person otherwise exercising functions in the agent’s practice, published or caused to be published an advertisement is evidence (in the absence of evidence to the contrary) that the agent caused or permitted the publication of the advertisement.

Responsibility for advertisements published by others

77 Responsibility for advertisements published by others

(1) For the purposes of this Division, an advertisement is taken to have been published or caused to be published by an agent if—

(a) the advertisement advertises or otherwise promotes the availability or use of the agent (either by name or by reference to a business name under which the agent practises or carries on business) for the provision of agent services in connection with the recovery of money, or an entitlement to recover money, in respect of work injury, or

(b) the agent is a party to an agreement, understanding or other arrangement with the person who published the advertisement or caused it to be published that expressly or impliedly provides for the referral of persons to the agent for the provision of agent services in connection with the recovery of money, or an entitlement to recover money, in respect of work injury, or

(c) the agent is a party to an agreement, understanding or other arrangement with the person who published the advertisement or caused it to be published that expressly or impliedly provides for the person to advertise on behalf of the agent.

(2) This clause does not apply to an advertisement if the agent proves that the agent took all reasonable steps to prevent the advertisement being published.

Application of Division

78 Application of Division

This Division does not apply to conduct of an agent or a lawyer.

Definition of “work injury advertisement”

79 Definition of “work injury advertisement”

In this Division—

work injury advertisement means an advertisement that includes any reference to or depiction of—

(a) work injury, or

(b) any circumstance in which work injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of work injury, or any connection to or association with work injury or a cause of work injury.

Restrictions on work injury advertisements

80 Restrictions on work injury advertisements

(1) A person must not publish or cause or permit to be published a work injury advertisement if the advertisement—

(a) advertises or otherwise promotes the availability or use of an agent (whether or not a particular agent) to provide agent services, whether or not that is its purpose or only purpose and whether or not that is its only effect, or

(b) includes any reference to or depiction of the recovery of money or a claim for money, or any entitlement to recover money or claim money, in respect of work injury.

Maximum penalty—200 penalty units.

(2) A person must not publish or cause or permit to be published a work injury advertisement if the person is engaged in a practice involving, or is a party to an agreement, understanding or other arrangement that provides for, the referral of persons to one or more agents for the provision of agent services in connection with the recovery of money, or an entitlement to recover money, in respect of work injury.

Maximum penalty—200 penalty units.

(3) A person who is a member of a partnership or a director or officer of a body corporate must not expressly, tacitly or impliedly authorise or permit a contravention of subclause (1) or (2) by the partnership or body corporate or by an employee or agent of the partnership or body corporate on behalf of the partnership or body corporate.

Maximum penalty—200 penalty units.

Exception for advertising specialty

81 Exception for advertising specialty

This Division does not prevent the publication of an advertisement that advertises an agent as being a specialist or offering specialist services, but only if the advertisement is published by means of—

(a) an entry in a practitioner directory that states only the name and contact details of the agent and any area of practice or specialty of the agent, or

(b) a sign displayed at a place of business of the agent that states only the name and contact details of the agent and any specialty of the agent, or

(c) an advertisement on a website operated on behalf of the agent the publication of which would be prevented under this Division solely because it refers to work injury or agent services in a statement of specialty of the agent.

Other exceptions

82 Other exceptions

This Division does not apply to the publication of an advertisement—

(a) in accordance with any order by a court, or

(b) to the extent that it relates only to legal education and is published to members of the legal profession by a person in the ordinary course of the person’s business or functions as a provider of legal education, or

(c) by an industrial organisation (within the meaning of the Industrial Relations Act 1996) if the advertisement (or so much of it as would otherwise contravene clause 80) relates only to the provision of advice or services by that organisation and states only the name and contact details of the industrial organisation along with a description of the services that it provides, or

(d) by a person in the ordinary course of the person’s business as an insurer or insurance agent or broker, to the extent only that it includes a reference to or depiction of the recovery of money under a policy of insurance, or

(e) that is required to be published by or under a written law of the State.

Protection of publishers

83 Protection of publishers

A contravention of clause 80 by a person who publishes an advertisement in the ordinary course of the person’s business as a publisher does not constitute an offence under this Division.

Part 17

Costs

Part 17 Costs

Definitions

84 Definitions

(1) In this Part, and in Schedules 6 and 7—

health service provider has the same meaning as in the Health Care Complaints Act 1993.

insurer includes an employer.

number of an item in a Table in Part 2 of Schedule 6 includes a letter.

(2) Expressions used in this Part, and in Schedules 6 and 7, have the same meanings as they have in Division 1 of Part 8 of Chapter 7 of the 1998 Act.

Note.

Section 332(2) of the 1998 Act provides that expressions used in Division 1 of Part 8 of Chapter 7 of that Act have the same meanings as they have in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014), except as provided by that section.

Definition of “costs”

85 Definition of “costs”

For the purposes of paragraph (f) of the definition of costs in section 332(1) of the 1998 Act, the costs of providing clinical notes, records and reports by a health service provider are prescribed as costs within that definition.

Costs not regulated by this Part

86 Costs not regulated by this Part

Costs referred to in this Part do not include any of the following—

(a) costs for legal services provided for an appeal under section 353 (Appeal against decision of Commission constituted by Presidential member) of the 1998 Act,

(b) fees for investigators’ reports or for other material produced or obtained by investigators (such as witness statements or other evidence),

(c) fees for accident reconstruction reports,

(d) fees for accountants’ reports,

(e) fees for reports from health service providers (except as provided in item 4 of Part 3 of Schedule 6),

(f) fees for other professional reports relating to treatment or rehabilitation (for example, architects’ reports concerning house modifications),

(g) fees for interpreter or translation services,

(h) fees imposed by a court or the Commission,

(i) travel costs and expenses of the claimant in the matter for attendance at medical examinations, a court or the Commission,

(j) witness expenses at a court or the Commission.

Note.

Costs referred to in this clause are recoverable under, and may be regulated by, other legislation (including regulations under the Legal Profession Uniform Law (NSW)) or common law principles. Under section 339 of the 1998 Act, the Authority may fix maximum fees for the provision of reports, or appearance before the Commission, by health service providers.

pt.17-div.2-sdiv.1

Preliminary

pt.17-div.2-sdiv.1 Preliminary

Subdivision 1 Preliminary

Application of Division

87 Application of Division

This Division is made under section 337 of the 1998 Act and applies to the following costs payable on a party and party basis, on a law practice or agent and client basis or on any other basis—

(a) costs for legal services or agent services provided in or in relation to a claim for compensation,

(b) costs for matters that are not legal or agent services but are related to a claim for compensation.

Note.

Section 337(3) and (4) of the 1998 Act provide that a law practice or an agent is not entitled to be paid or recover for a legal service or agent service or other matter an amount that exceeds any maximum costs fixed for the service or matter by regulations under section 337.

pt.17-div.2-sdiv.2

Maximum costs recoverable by law practices and agents in compensation matters

pt.17-div.2-sdiv.2 Maximum costs recoverable by law practices and agents in compensation matters

Subdivision 2 Maximum costs recoverable by law practices and agents in compensation matters

Maximum costs recoverable

88 Maximum costs recoverable

(1) The costs that are recoverable, and the maximum costs that are recoverable, for—

(a) legal services or agent services provided in or in relation to a claim for compensation, and

(b) matters that are not legal services or agent services but are related to a claim for compensation,

are the costs set out in Schedule 6, except as otherwise provided by this Part.

Note.

The effect of this clause is that a law practice or agent cannot recover any costs in relation to a claim for compensation unless those costs are set out in Schedule 6, except as otherwise provided in this Part.

(2) If there is a change in the law practice or agent retained by a party in or in relation to a claim made or to be made for compensation, the relevant costs are to be apportioned between the law practices or agents concerned.

(3) If there is a dispute as to such an apportionment, either law practice or agent concerned (or the client) may refer the dispute to the President for determination.

(4) A law practice or agent has the same right of appeal against a determination made under subclause (3) as the law practice or agent would have under clause 125 if the determination were a determination made by the President in relation to a bill of costs.

Note.

Division 3 of Part 4.3 of the Legal Profession Uniform Law (NSW) requires a law practice to provide a client with information disclosing the basis on which legal costs will be calculated, and an estimate of the total legal costs, as soon as practicable after instructions are given in relation to any matter.

cl 88: Am 2020 (744), Sch 3[8].

Maximum costs involving medical or related treatment or certain fees for health service providers

89 Maximum costs involving medical or related treatment or certain fees for health service providers

In workers compensation matters, the costs that are recoverable, and the maximum costs that are recoverable, in respect of costs of a kind referred to in clause 86 or Part 3 of Schedule 6 are, if section 61 of the 1987 Act or section 339 of the 1998 Act applies in respect of costs of that kind, costs equal to the amount fixed by or by order under the section concerned.

Costs not recoverable in certain circumstances (workers compensation matters)

90 Costs not recoverable in certain circumstances (workers compensation matters)

(1) This clause applies to workers compensation matters.

(2) No amount is recoverable for costs (including disbursements) other than those referred to in clause 86 or Schedule 6.

(3) No amount is recoverable for costs for any service or matter unless the claim or dispute (or the relevant aspect of the claim or dispute) to which the service or matter relates is resolved or otherwise dealt with in accordance with Schedule 6.

(4) Despite subclause (3), if an appeal is lodged in respect of a claim or dispute, no amount is recoverable for costs for any service or matter (or the relevant aspect of the claim or dispute) unless the appeal is determined, is withdrawn or lapses.

pt.17-div.3-sdiv.1

Maximum costs recoverable by law practices in work injury damages matters

pt.17-div.3-sdiv.1 Maximum costs recoverable by law practices in work injury damages matters

Subdivision 1 Maximum costs recoverable by law practices in work injury damages matters

Application of Division

91 Application of Division

This Division is made under section 337 of the 1998 Act and applies to the following costs payable on a party and party basis, on a law practice and client basis or on any other basis—

(a) costs for legal services or agent services provided in or in relation to a claim for work injury damages,

(b) costs for matters that are not legal or agent services but are related to a claim for work injury damages.

Note.

Section 337(3) of the 1998 Act provides that a law practice is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by regulations under section 337.

Fixing of maximum costs recoverable by law practices

92 Fixing of maximum costs recoverable by law practices

(1) The maximum costs for—

(a) legal services provided in or in relation to a claim for work injury damages, and

(b) matters that are not legal services but are related to a claim for work injury damages,

are the costs set out in Schedule 7, except as otherwise provided by this Part.

Note.

The effect of this clause is that a law practice or agent cannot recover any costs in relation to a claim for work injury damages unless those costs are set out in Schedule 7, except as otherwise provided in this Part.

(2) If there is a change in the law practice retained by a party in or in relation to a claim for work injury damages, the relevant costs are to be apportioned between the law practices concerned.

(3) If there is a dispute as to such an apportionment, either law practice concerned (or the client concerned) may refer the dispute to the President for determination.

(4) A law practice has the same right of appeal against a determination made under subclause (3) as the law practice would have under clause 125 if the determination were a determination made by the President in relation to a bill of costs.

Note.

Division 3 of Part 4.3 of the Legal Profession Uniform Law (NSW) requires a law practice to provide a client with information disclosing the basis on which legal costs will be calculated, and an estimate of the total legal costs, as soon as practicable after instructions are given in relation to any matter.

cl 92: Am 2020 (744), Sch 3[8] [9].

Contracting out—law practice/client costs

93 Contracting out—law practice/client costs

(1) This clause applies in respect of costs in or in relation to a claim for work injury damages if a law practice—

(a) makes a disclosure under Division 3 of Part 4.3 of the Legal Profession Uniform Law (NSW) (sections 174(4) and 178 excepted) to a party to the matter with respect to the costs, and

(b) enters into a costs agreement (other than a conditional costs agreement, under section 181 or 182 of that Law, that provides for the payment of a premium of more than 10% of the costs otherwise payable under the agreement on the successful outcome of the matter concerned) with that party as to those costs in accordance with Division 4 of that Part, and

(c) before entering into the costs agreement, advises the party (in a separate written document) that, even if costs are awarded in favour of the party, the party will be liable to pay such amount of the costs provided for in the costs agreement as exceeds the amount that would be payable under the 1998 Act in the absence of a costs agreement.

(2) Schedule 7 does not apply to the costs concerned to the extent that they are payable on a law practice and client basis.

pt.17-div.3-sdiv.2

Restriction on awarding of costs

pt.17-div.3-sdiv.2 Restriction on awarding of costs

Subdivision 2 Restriction on awarding of costs

Note.

This Subdivision is made under section 346 of the 1998 Act, which provides that a party is not entitled to an award of costs to which that section applies (being costs payable by a party in or in relation to a claim for work injury damages, including court proceedings for work injury damages) except as prescribed by the regulations or by the rules of the court concerned.

In the event of any inconsistency between the provisions of this Regulation and rules of court, the provisions of this Regulation prevail to the extent of the inconsistency: section 346(4) of the 1998 Act.

Costs where claimant no less successful than claimant’s final offer

94 Costs where claimant no less successful than claimant’s final offer

If a claimant obtains an order or judgment on a claim that is no less favourable to the claimant than the terms of the claimant’s final offer of settlement in mediation under the 1998 Act as certified by the mediator under section 318B of the 1998 Act, the court is to order the insurer to pay the claimant’s costs on the claim assessed on a party and party basis.

Costs where claimant less successful than insurer’s final offer or insurer found not liable

95 Costs where claimant less successful than insurer’s final offer or insurer found not liable

(1) If a claimant obtains an order or judgment on a claim that is less favourable to the claimant than the terms of the insurer’s final offer of settlement in mediation under the 1998 Act as certified by the mediator under section 318B of the 1998 Act, the court is to order the claimant to pay the insurer’s costs on the claim assessed on a party and party basis.

(2) If a claimant does not obtain an order or judgment on a claim (that is, if the court finds the insurer has no liability for the claim), the court is to order the claimant to pay the insurer’s costs on the claim assessed on a party and party basis.

Costs in other cases

96 Costs in other cases

Except as provided by this Subdivision, the parties to court proceedings for work injury damages are to bear their own costs.

Deemed offer where insurer denies liability and no mediation occurs or mediation fails

97 Deemed offer where insurer denies liability and no mediation occurs or mediation fails

(1) If—

(a) the insurer wholly denies liability, and

(b) no mediation occurs, and

(c) the claimant obtains an order or judgment on the claim,

costs are to be awarded in accordance with this Subdivision as if—

(d) the insurer had made a final offer of settlement at mediation of $0, and

(e) the claimant had made a final offer of settlement at mediation of—

(i) in the case where the President issued a certificate verifying the matters referred to in paragraphs (a) and (b) and the claimant, within one month of the issue of that certificate, made a subsequent offer of settlement to the insurer—the amount of damages specified in that subsequent offer of settlement, or

(ii) in any other case—the amount of damages specified in the pre-filing statement served under section 315 of the 1998 Act.

(2) If—

(a) the insurer wholly denies liability, and

(b) the matter is referred to mediation, but the matter is not resolved by settlement at the mediation, and

(c) the claimant obtains an order or judgment on the claim,

costs are to be awarded in accordance with this Subdivision as if—

(d) the insurer had made a final offer of settlement at mediation of $0, and

(e) the claimant had made a final offer of settlement at mediation of—

(i) in the case where the claimant, within one month of the conclusion of that mediation, made a subsequent offer of settlement to the insurer—the amount of damages specified in that subsequent offer of settlement, or

(ii) in any other case—the amount of the claimant’s final offer of settlement in mediation under the 1998 Act as certified by the mediator under section 318B of the 1998 Act.

Note.

Persons claiming work injury damages who wish to be awarded costs on a party and party basis should apply to the Commission for the mediation of the dispute before the matter goes to court. The availability of costs on a party and party basis is subject to the provisions of clause 94 and this clause.

cl 97: Am 2020 (744), Sch 3[9] [10].

Subdivision does not apply to ancillary proceedings

98 Subdivision does not apply to ancillary proceedings

This Subdivision does not apply to costs payable in or in relation to proceedings that are ancillary to proceedings on a claim for work injury damages, and a court is to award costs in such ancillary proceedings in accordance with the rules of the court.

Multiple parties

99 Multiple parties

Where 2 or more defendants are alleged to be jointly or jointly and severally liable to the claimant and rights of contribution or indemnity appear to exist between the defendants, this Subdivision does not apply to an offer of settlement unless—

(a) in the case of an offer made by the claimant—the offer is made to all the defendants and is an offer to settle the claim against all of them, and

(b) in the case of an offer made to the claimant—

(i) the offer is to settle the claim against all the defendants concerned, and

(ii) where the offer is made by 2 or more defendants—by the terms of the offer the defendants who made the offer are jointly or jointly and severally liable to the claimant for the whole amount of the offer.

Division 3A

99A, 99B (Repealed)

pt 17, div 3A (cll 99A, 99B): Ins 2016 (780), Sch 1 [1]. Rep 2018 (729), Sch 1 [6].

pt.17-div.4-sdiv.1

Preliminary

pt.17-div.4-sdiv.1 Preliminary

Subdivision 1 Preliminary

100

Definitions

100 Definitions

In this Division—

agent bill of costs means a bill of costs for providing agent services.

bill of costs means a legal bill of costs or an agent bill of costs.

client of a law practice or agent means a person to whom the law practice or agent has provided legal services or agent services in respect of any workers compensation matter or work injury damages matter.

legal bill of costs means a bill for providing legal services given under Part 4.3 of the Legal Profession Uniform Law (NSW).

101

Application by client for assessment of law practice/client or agent/client costs

101 Application by client for assessment of law practice/client or agent/client costs

(1) A client who is given a bill of costs may apply to the President for an assessment of the whole of, or any part of, so much of those costs as are payable on a law practice and client basis or an agent and client basis.

(2) An application relating to a bill of costs may be made even if the costs have been wholly or partly paid.

(3) If any costs have been paid without a bill of costs, the client may nevertheless apply for an assessment. For that purpose the request for payment by the law practice or agent is taken to be the bill of costs.

cll 101–103: Am 2020 (744), Sch 3[8].

102

Application by instructing law practice or agent for assessment of law practice/client or agent/client costs

102 Application by instructing law practice or agent for assessment of law practice/client or agent/client costs

(1) A law practice or agent that—

(a) retains another law practice or agent to act on behalf of the client, and

(b) is given a bill of costs in accordance with this Part by the other law practice or agent,

may apply to the President for an assessment of the whole, or any part of, so much of those costs as are payable on a law practice and client basis or an agent and client basis.

(2) An application may not be made if there is a costs agreement between the client and the other law practice or agent.

(3) An application is to be made within 30 days after the bill of costs is given and may be made even if the costs have been wholly or partly paid.

cll 101–103: Am 2020 (744), Sch 3[8].

103

Application by billing law practice or agent for assessment of law practice/client or agent/client costs

103 Application by billing law practice or agent for assessment of law practice/client or agent/client costs

(1) A law practice or agent that has given a bill of costs may apply to the President for an assessment of the whole of, or any part of, so much of those costs as are payable on a law practice and client basis or an agent and client basis.

(2) An application may not be made unless—

(a) the bill of costs includes the following particulars—

(i) a description of the legal services or agent services provided,

(ii) if relevant, an identification of each general resolution type referred to in Table 2 in Part 2 of Schedule 6 by reference to the item number and Column number in Table 2 of the general resolution type that was attained,

(iii) if relevant, an identification of each special resolution type referred to in Table 3 in Part 2 of Schedule 6 by reference to the item number and Column number in Table 3 of the special resolution type that was attained,

(iv) if relevant, an identification of the phase of each general resolution type referred to in Table 1 in Part 2 of Schedule 6 by reference to the item number and Column number in Table 1 of the general resolution type that was attained,

(v) if relevant, an identification of each additional legal service or other factor referred to in Table 4 in Part 2 of Schedule 6 by reference to the item number and (where relevant) Column number in Table 4 of the legal service or factor,

(vi) an identification of each disbursement incurred by reference to a paragraph number in clause 86 or an item number in Part 3 of Schedule 6,

(vii) an identification of each activity, event or stage specified in Schedule 7, by reference to the item number of the activity, event or stage, that was carried out,

(viii) the amount sought, and

(b) at least 30 days have passed since the bill of costs was given or an application has been made under this Division by another person in respect of the bill of costs.

cll 101–103: Am 2020 (744), Sch 3[8].

104

Application for assessment of party/party costs—compensation matters

104 Application for assessment of party/party costs—compensation matters

(1) A person who is entitled to receive or who has received costs, in or in connection with a workers compensation matter, as a result of—

(a) an order for the payment of an unspecified amount of costs made by a court or the Commission, or

(b) an agreement, evidenced in writing by the party liable to pay the costs, for the payment of an unspecified amount of costs,

may apply to the President for an assessment of the whole of, or any part of, those costs.

(2) A person who has paid or is liable to pay costs, in or in connection with a workers compensation matter, as a result of an order or agreement referred to in subclause (1) may apply to the President for an assessment of the whole of, or any part of, those costs after the period of 60 days after the making of the order or agreement.

(3) A court or the Commission may, after making an order in relation to a matter—

(a) refer the matter to the President, and

(b) request the President to make arrangements for the assessment of costs payable as a result of the order.

Note—

Schedule 3, clause 5(2) of the Personal Injury Commission Act 2020 requires the Commission to be constituted by 1 non-presidential member assigned to the Workers Compensation Division of the Commission when dealing with the assessment of costs under this Regulation.

(4) A referral under subclause (3) is taken to be an application for assessment duly made under this Division.

cl 104: Am 2020 (744), Sch 3[8] [11].

105

Application for assessment of party/party costs—work injury damages matters

105 Application for assessment of party/party costs—work injury damages matters

(1) A person who has paid or is liable to pay, or who is entitled to receive or who has received, costs, in or in connection with a work injury damages matter, as a result of an order for the payment of an unspecified amount of costs made by a court or the Commission may apply to the President for an assessment of the whole of, or any part of, those costs.

(2) A court or the Commission may, after making an order in relation to a matter—

(a) refer the matter to the President, and

(b) request the President to make arrangements for the assessment of costs payable as a result of the order.

Note—

Schedule 3, clause 5(2) of the Personal Injury Commission Act 2020 requires the Commission to be constituted by 1 non-presidential member assigned to the Workers Compensation Division of the Commission when dealing with the assessment of costs under this Regulation.

(3) A referral under subclause (2) is taken to be an application for assessment duly made under this Division.

cl 105: Am 2020 (744), Sch 3[8] [12].

106

Making an application for assessment

106 Making an application for assessment

(1) An application for assessment is to be made in the form approved by the Commission and is, subject to subclause (3), to be accompanied by the fee determined by the Commission from time to time.

(2) The application must authorise the Commission to have access to, and to inspect, all documents of the applicant that are held by the applicant, or by any law practice or agent concerned, in respect of the matter to which the application relates.

(3) The Commission may waive or postpone payment of the fee either wholly or in part if satisfied that the applicant is in such circumstances that payment of the fee would result in serious hardship to the applicant or his or her dependants.

(4) The Commission may refund the fee paid under this clause either wholly or in part if satisfied that it is appropriate because the application is not proceeded with.

cl 106: Am 2020 (744), Sch 3[13].

107

107–109 (Repealed)

110

Assessment to give effect to maximum costs, 1998 Act and orders and rules of the Commission or court

110 Assessment to give effect to maximum costs, 1998 Act and orders and rules of the Commission or court

An assessment of costs is to be made in accordance with, and so as to give effect to, orders of the Commission or a court, the Commission rules or rules of court, Part 8 of Chapter 7 of the 1998 Act, this Part, and Schedules 6 and 7.

cl 110: Am 2020 (744), Sch 3[15].

pt.17-div.4-sdiv.2

Assessment of bills of costs between law practice or agent and client

pt.17-div.4-sdiv.2 Assessment of bills of costs between law practice or agent and client

Subdivision 2 Assessment of bills of costs between law practice or agent and client

111

Assessment of bills generally

111 Assessment of bills generally

(1) When considering an application relating to a bill of costs, the Commission must consider—

(a) whether or not it was reasonable to carry out the work to which the costs relate, and

(b) whether or not the work was carried out in a reasonable manner, and

(c) the fairness and reasonableness of the amount of the costs in relation to that work.

(2) The Commission is to determine the application by confirming the bill of costs or, if the Commission is satisfied that the disputed costs are unfair or unreasonable, by substituting for the amount of the costs an amount that, in the Commission’s opinion, is a fair and reasonable amount.

(3) Any amount substituted for the amount of the costs may include an allowance for any fee paid or payable for the application by the applicant.

(4) If a law practice is liable under section 204(2) of the Legal Profession Uniform Law (NSW) to pay the costs of the costs assessment (including the costs of the Commission), the Commission is to determine the amount of those costs. The costs incurred by the client are to be deducted from the amount payable under the bill of costs and the costs of the Commission are to be paid to the Commission.

(5) The Commission may not determine that any part of a bill of costs that is not the subject of an application is unfair or unreasonable.

Note.

Clause 110 requires an assessment of costs to give effect to the maximum costs set out in Schedules 6 and 7, as well as to other matters.

Section 337(3) and (4) of the 1998 Act provide that a law practice or an agent is not entitled to be paid or recover for a legal service or agent service or other matter an amount that exceeds any maximum costs fixed for the service or matter by regulations under section 337.

cl 111: Am 2020 (744), Sch 3[13] [16].

112

Additional matters to be considered in assessing bills of costs

112 Additional matters to be considered in assessing bills of costs

(1) In assessing what is a fair and reasonable amount of costs, the Commission may have regard to any or all of the following matters—

(a) whether the law practice or agent complied with any relevant regulation, Legal Practice Rules or Legal Profession Conduct Rules,

(b) in the case of a law practice—whether the law practice disclosed the basis of the costs or an estimate of the costs under Division 3 of Part 4.3 of the Legal Profession Uniform Law (NSW) and any disclosures made,

(c) any relevant costs agreement (subject to clause 113),

(d) the skill, labour and responsibility displayed on the part of the law practice or agent responsible for the matter,

(e) the instructions and whether the work done was within the scope of the instructions,

(f) the complexity, novelty or difficulty of the matter,

(g) the quality of the work done,

(h) the place where and circumstances in which the legal services were provided,

(i) the time within which the work was required to be done.

(2) In this clause, Legal Practice Rules and Legal Profession Conduct Rules have the same meaning as in the Legal Profession Uniform Law (NSW).

cll 112–115: Am 2020 (744), Sch 3[13].

113

Costs agreements not subject to assessment

113 Costs agreements not subject to assessment

(1) The Commission is to decline to assess a bill of costs if—

(a) the disputed costs are subject to a costs agreement that complies with Division 4 of Part 4.3 of the Legal Profession Uniform Law (NSW), and

(b) the costs agreement specifies the amount of the costs or the dispute relates only to the rate specified in the agreement for calculating the costs.

(2) If the dispute relates to any other matter, costs are to be assessed on the basis of that specified rate despite clause 111. The Commission is bound by a provision for the payment of a premium that is not determined to be unjust under clause 114.

(3) This clause does not apply to any provision of a costs agreement that the Commission determines to be unjust under clause 114.

(4) This clause does not apply to a costs agreement applicable to the costs of legal services if a law practice failed to make a disclosure in accordance with Division 3 of Part 4.3 of the Legal Profession Uniform Law (NSW) of the matters required to be disclosed by section 174 of that Law in relation to those costs.

cll 112–115: Am 2020 (744), Sch 3[13].

114

Unjust costs agreements

114 Unjust costs agreements

(1) The Commission may determine whether a term of a particular costs agreement entered into by a law practice and a client is unjust in the circumstances relating to it at the time it was made.

(2) For that purpose, the Commission is to have regard to the public interest and to all the circumstances of the case and may have regard to the matters specified in section 172 of the Legal Profession Uniform Law (NSW).

(3) For the purposes of this clause, a person is taken to have represented another person if the person represented the other person, or assisted the other person to a significant degree, in the negotiations process up to, or at, the time the agreement was made.

(4) In determining whether a provision of the agreement is unjust, the Commission is not to have regard to any injustice arising from circumstances that were not reasonably foreseeable when the agreement was made.

cll 112–115: Am 2020 (744), Sch 3[13].

115

Interest on amount outstanding

115 Interest on amount outstanding

(1) The Commission may, in an assessment, determine that interest is not payable on the amount of costs assessed or on any part of that amount and determine the rate of interest (not exceeding the rate referred to in section 195(4) of the Legal Profession Uniform Law (NSW)).

(2) This clause applies despite any costs agreement or section 195 of the Legal Profession Uniform Law (NSW).

(3) This clause does not authorise the giving of interest on interest.

(4) This clause does not apply to or in respect of the assessment of costs referred to in Subdivision 3 (Assessment of party/party costs).

cll 112–115: Am 2020 (744), Sch 3[13].

pt.17-div.4-sdiv.3

Assessment of party/party costs

pt.17-div.4-sdiv.3 Assessment of party/party costs

Subdivision 3 Assessment of party/party costs

116

Assessment of costs—costs ordered by court or Commission or subject of agreement

116 Assessment of costs—costs ordered by court or Commission or subject of agreement

(1) When dealing with an application relating to costs payable as a result of an order made by a court or the Commission or as a result of an agreement referred to in clause 104(1)(b), the Commission must consider—

(a) whether or not it was reasonable to carry out the work to which the costs relate, and

(b) what is a fair and reasonable amount of costs for the work concerned.

(2) The Commission is to determine the costs payable as a result of the order or agreement by assessing the amount of the costs that, in the Commission’s opinion, is a fair and reasonable amount.

(3) If a court or the Commission has ordered that costs are to be assessed on an indemnity basis, the Commission must assess the costs on that basis, having regard to any relevant rules of the court or Commission.

(4) The costs assessed are to include the costs of the assessment (including the costs of the parties to the assessment, and the Commission). The Commission may determine by whom and to what extent the costs of the assessment are to be paid.

(5) The costs of the Commission are to be paid to the Commission.

Note.

Subdivision 2 of Division 3 of this Part limits the circumstances in which costs may be awarded on a party/party basis in relation to a claim for work injury damages.

Clause 110 requires an assessment of costs to give effect to the maximum costs set out in Schedules 6 and 7, as well as to other matters.

cl 116: Am 2020 (744), Sch 3[13] [16].

117

Additional matters to be considered by Commission in assessing costs ordered by court or Commission

117 Additional matters to be considered by Commission in assessing costs ordered by court or Commission

In assessing what is a fair and reasonable amount of costs, the Commission may have regard to any or all of the following matters—

(a) the skill, labour and responsibility displayed on the part of the law practice or agent responsible for the matter,

(b) the complexity, novelty or difficulty of the matter,

(c) the quality of the work done and whether the level of expertise was appropriate to the nature of the work done,

(d) the place where and circumstances in which the legal services were provided,

(e) the time within which the work was required to be done,

(f) the outcome of the matter.

cl 117: Am 2020 (744), Sch 3[13] [17].

118

Effect of costs agreements in assessments of party/party costs

118 Effect of costs agreements in assessments of party/party costs

(1) The Commission may obtain a copy of, and may have regard to, a costs agreement.

(2) However, the Commission must not apply the terms of a costs agreement for the purposes of determining appropriate fair and reasonable costs when assessing costs payable as a result of an order by a court or the Commission.

cl 118: Am 2020 (744), Sch 3[13].

119

Court or Commission may specify amount etc

119 Court or Commission may specify amount etc

This Division does not limit any power of a court or the Commission to determine in any particular case the amount of costs payable or that the amount of the costs is to be determined on an indemnity basis.

pt.17-div.4-sdiv.4

Enforcement of assessment

pt.17-div.4-sdiv.4 Enforcement of assessment

Subdivision 4 Enforcement of assessment

120

Certificate as to determination

120 Certificate as to determination

(1) On making a determination, the Commission is to issue to each party a certificate that sets out the determination.

(2) The Commission may issue more than one certificate in relation to an application for costs assessment. Such certificates may be issued at the same time or at different stages of the assessment process.

(3) In the case of an amount of costs that has been paid, the amount (if any) by which the amount paid exceeds the amount specified in any such certificate may be recovered as a debt in a court of competent jurisdiction.

(4) In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed.

(5) For this purpose, the amount of unpaid costs does not include the costs incurred by the Commission in the course of a costs assessment.

(6) To avoid any doubt, this clause applies to or in respect of both the assessment of costs referred to in Subdivision 2 of this Division (law practice/client costs) and the assessment of costs referred to in Subdivision 3 of this Division (party/party costs).

(7) If the costs of the Commission are payable by a party to the assessment (as referred to in clause 122), the Commission may refuse to issue a certificate relating to the Commission’s determination under this clause until the costs of the Commission have been paid.

(8) Subclause (7) does not apply in respect of a certificate issued before the completion of the assessment process under subclause (2).

cl 120: Am 2020 (744), Sch 3[13] [16].

121

Reasons for determination

121 Reasons for determination

The Commission must ensure that a certificate issued under clause 120 that sets out the Commission’s determination is accompanied by—

(a) a statement of the reasons for the Commission’s determination, and

(b) the amount of costs the Commission determines is fair and reasonable, and

(c) if the Commission declines to assess a bill of costs under clause 113—the basis for doing so, and

(d) if the Commission determines that a term of a costs agreement is unjust—the basis for doing so, and

(e) a statement of any determination under clause 115 that interest is not payable on the amount of costs assessed or, if payable, of the rate of interest payable.

cl 121: Am 2020 (744), Sch 3[13] [16] [18].

122

Recovery of costs of costs assessment

122 Recovery of costs of costs assessment

(1) This clause applies when the costs of the Commission are payable by a party to the assessment (under section 204(2) of the Legal Profession Uniform Law (NSW) or clause 111 or 116(5)).

(2) On making a determination, the Commission may issue to each party a certificate that sets out the costs incurred by the Commission in the course of the costs assessment.

(3) The certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs.

(4) A Registrar of the Commission may take action to recover the costs of the Commission.

cl 122: Am 2020 (744), Sch 3[13] [19].

123

123 (Repealed)

124

Determination to be final

124 Determination to be final

The Commission’s determination of an application is binding on all parties to the application and no appeal or other review lies in respect of the determination, except as provided by this Division.

cl 124: Am 2020 (744), Sch 3[18].

pt.17-div.4-sdiv.5

Appeals

pt.17-div.4-sdiv.5 Appeals

Subdivision 5 Appeals

pt 17, div 4, sdiv 5 (cll 125, 126): Subst 2020 (744), Sch 3[20].

125

Appeal against decision of Commission as to matter of law

125 Appeal against decision of Commission as to matter of law

(1) This clause applies to a party to an application for an assessment of costs who is dissatisfied with a decision of the Commission (the first instance Commission) as to a matter of law arising in the proceedings to determine the application.

(2) A party to whom this clause applies may, in accordance with the Commission rules, appeal to the Commission against the decision (the appellate Commission).

(3) The appeal is to be—

(a) in the form approved by the President, and

(b) accompanied by the fee approved by the President from time to time.

(4) After deciding the question that is the subject of the appeal, the appellate Commission may, unless it affirms the first instance Commission’s decision—

(a) make a determination in relation to the application that, in its opinion, should have been made by the first instance Commission, or

(b) remit its decision on the question to the first instance Commission and order the first instance Commission to re-determine the application.

(5) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.

(6) In proceedings to determine an application for the assessment of costs under Schedule 6, subclause (2) only applies to a decision of the first instance Commission that is made in, or in connection with, the referral of a dispute to the President under clause 88(3).

Note—

Schedule 3, clause 5 of the Personal Injury Commission Act 2020 requires the Commission to be constituted by—

(a) when dealing with the assessment of costs under this Regulation—1 non-presidential member of the Workers Compensation Division of the Commission, and

(b) when dealing with an appeal against an assessment—1 presidential member of the Workers Compensation Division.

pt 17, div 4, sdiv 5 (cll 125, 126): Subst 2020 (744), Sch 3[20].

126

Effect of appeal on application

126 Effect of appeal on application

If a party to an application has appealed against a determination or decision of the first instance Commission under clause 125, the first instance Commission, the appellate Commission or the court may suspend the operation of the determination or decision until whichever occurs first—

(a) the appeal is determined, or

(b) for a suspension imposed by the first instance Commission—the suspension is ended by the first instance Commission, the appellate Commission or the court, or

(c) for a suspension imposed by the appellate Commission—the suspension is ended by the appellate Commission or the court, or

(d) for a suspension imposed by the court—the suspension is ended by the court.

pt 17, div 4, sdiv 5 (cll 125, 126): Subst 2020 (744), Sch 3[20].

pt.17-div.4-sdiv.6

Miscellaneous

pt.17-div.4-sdiv.6 Miscellaneous

Subdivision 6 Miscellaneous

127

Liability of law practice or agent for costs in certain cases

127 Liability of law practice or agent for costs in certain cases

(1) The Commission may act as set out in subclause (2) if it appears to the Commission that costs have been incurred improperly or without reasonable cause, or have been wasted by undue delay or by any other misconduct or default.

(2) The Commission may in the determination—

(a) disallow the costs as between the law practice or agent and the law practice’s or agent’s client, and

(b) direct the law practice or agent to repay to the client costs that the client has been ordered by a court or the Commission to pay to any other party, and

(c) direct the law practice or agent to indemnify any party other than the client against costs payable by the party indemnified.

(3) Before taking action under this clause, the Commission must give notice of the proposed action to the law practice or agent and the client and give them a reasonable opportunity to make written submissions in relation to the proposed action.

(4) The Commission must give due consideration to any submissions so made.

cl 127: Am 2020 (744), Sch 3[13].

128

Referral of misconduct to designated local regulatory authority

128 Referral of misconduct to designated local regulatory authority

(1) If the Commission considers that any conduct of a law practice, lawyer or agent involves the deliberate charging of grossly excessive amounts of costs or deliberate misrepresentations as to costs, the Commission must refer the matter to the designated local regulatory authority (within the meaning of the Legal Profession Uniform Law (NSW)).

(2) For the purposes of the Legal Profession Uniform Law (NSW), the deliberate charging of grossly excessive amounts of costs and deliberate misrepresentations as to costs are each declared to be professional misconduct.

(3) The Commission may refer any failure by a law practice or lawyer to comply with a provision of this Division to the designated local regulatory authority (within the meaning of the Legal Profession Uniform Law (NSW)).

cl 128: Am 2020 (744), Sch 3[13] [21].

129

GST may be added to costs

129 GST may be added to costs

(1) Despite the other provisions of this Part, a cost fixed by Division 2 (Costs recoverable in compensation matters) or Division 3 (Costs recoverable in work injury damages matters) may be increased by the amount of any GST payable in respect of the service to which the cost relates, and the cost as so increased is taken to be the cost fixed by this Part.

(2) In this clause—

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth.

cl 129: Am 2016 (780), Sch 1 [2]; 2018 (729), Sch 1 [7].

Division 6

Miscellaneous

Division 6 Miscellaneous

130

Modifications to Legal Profession Uniform Law (NSW) relating to assessment of costs

130 Modifications to Legal Profession Uniform Law (NSW) relating to assessment of costs

A reference in Division 3 of Part 4.3 of the Legal Profession Uniform Law (NSW) to costs being assessed, however described, is to be read as including, as an alternative to a costs assessment under that Part, assessment of costs under Division 4 of Part 8 of Chapter 7 of the 1998 Act.

More sections below

Source text: opening excerpt

Sourced from legislation.nsw.gov.au, CC BY 4.0.

Part 1 Preliminary

1 Name of Regulation

This Regulation is the Workers Compensation Regulation 2016.

2 Commencement

This Regulation commences on 1 September 2016 and is required to be published on the NSW legislation website.

Note.

This Regulation replaces the Workers Compensation Regulation 2010, which is repealed on 1 September 2016 by section 10(2) of the Subordinate Legislation Act 1989.

3 Definitions

(1) In this Regulation—

approved form means a form approved by the Authority.

approved provider of workplace rehabilitation services means a provider that holds a certificate of approval.

category 1 employer means—

(a) an employer insured under a policy of insurance to which the Workers Compensation Market Practice and Premiums Guidelines apply and whose basic tariff premium (within the meaning of those guidelines) for that policy would exceed $50,000, if the period of insurance to which the premium relates were 12 months, or

(b) an employer insured under more than one policy of insurance to which the Workers Compensation Market Practice and Premiums Guidelines apply and whose combined basic tariff premiums (within the meaning of those guidelines) for those policies would exceed $50,000, if the period of insurance to which each premium relates were 12 months, or

(c) an employer who is self-insured, or

(d) an employer who is insured with a specialised insurer and who employs more than 20 workers.

category 2 employer means an employer who is not a category 1 employer.

certificate of approval means a certificate of approval as a provider of workplace rehabilitation services granted by the Authority under clause 23.

return-to-work guidelines means the guidelines, relating to return-to-work programs, determined by the Authority under section 52(2)(a) of the 1998 Act.