- Comcare sought General Counsel's advice on :
- who has the power to suspend under 37(7);
- whether the action to suspend is reviewable;
- whether all benefits are suspended.
- General Counsel has provided Comcare with the following advice:
- who has the authority to suspend compensation under subsections 36(4) and 37(7) of the Act
Under subsections 36(4) and 37(7) of the Act, it is Comcare that decides and informs the employee that his or her rights to compensation and rights to institute proceedings under the Act are suspended.
- whether subsections 36(4) and 37(7) of the Act are self-executing provisions
The Federal Court in the recent case of Trajkovski v Telstra Corporation Limited held that subsection 37(7) of the Act is self-executing. This case supports the view that subsection 36(4) is also self-executing because subsection 36(4) contains the same wording as contained in subsection 37(7).
A self-executing provision means that the provision will automatically come into operation once a set of circumstances exist. Accordingly, a Claims Manager does not make a decision to suspend entitlements under subsections 36(4) and 37(7), but instead must identify when the set of circumstances referred to in the subsections come into existence. When examining these circumstances, the Claims Manager should give the employee ample opportunity to explain their circumstances especially if there is any doubt, and then decide if any excuse offered is indeed reasonable. Once the Claims Manager has identified the existence of the set of circumstances, he or she must undertake the action described in the PROCEDURES Section of this Advice.
Reasonableness Of The Excuse:
The decision by Comcare about whether an excuse is reasonable or otherwise is subject to reconsideration and full rights under the Administrative Appeals Tribunal (AAT) Act 1975. The same processes that apply to review of other decisions under the Act apply when examining the issue of the reasonableness of the excuse.
Action To Suspend.
If an employee wishes to challenge the suspension of their rights to compensation or rights to institute or continue proceedings under the Act, then they file an application under section 39B of the Judiciary Act 1903. If such an application came before the Federal Court, it would have to hear evidence as to whether the employee provided a reasonable excuse in not undertaking an examination or rehabilitation program.
If an employee submits a request for a review of the decision to suspend they must be advised of the process required as above. However, the employee should be advised that a review by Comcare and subsequently through the AAT if required, can be undertaken on the issue of the reasonableness of the excuse provided which resulted in the suspension. A favourable review of this decision would have the effect of reinstating compensation entitlements.
- If 'compensation' is suspended, whether this encompasses all benefits available under the Act
Suspension of compensation means suspending compensation under sections 15 to 21, 21A, 22, 24, 25, 27, 29, 39 and Part X of the Act.
However, the right to undertake an examination or rehabilitation program is not suspended.
- Comcare is now adopting Counsel's advice. In addition to this Operational Advice a Customer Circular (CC no 29, May 1999) and a Working With You article (Issue 20, July 1999) have been issued.