COMCARE OPERATIONAL ADVICE NO: 119
AMENDMENTS TO COMMONWEALTH EMPLOYEES' REHABILITATION AND COMPENSATION ACT 1988
Branch Managers
State Managers
State Operations Managers
State Review Managers
State Rehabilitation Managers
State Executive Officers
This Operational Advice updates the information given in Operational Advice No 80 issued on 16 October 1990.
2.Since that date, amendments to the Act have been made by the Industrial Relations Legislation Amendment Act 1991 (Act No 122 of 1991) (the IRLA Act). The IRLA Act received Royal Assent on 27 June 1991, but several amendments were deemed to have commenced on 1 December 1988. Copies of the relevant pages of the IRLA Act are attached.
3.Also attached are copies of Notices of Declarations and Specifications made by the Minister under various provisions of the Act:
.Notice No 1 published in the Gazette of 13 March 1991,
.Notice No 2 published on 17 April 1991;
.Notice No 3 published on 18 April 1991;
.Notice No 4 published on 7 August 1991; and
.Notice No 5 published in the Gazette of 18 December 1991.
4.The Commonwealth Employees' Rehabilitation and Compensation Act 1988, together with these amendments and those which accompanied OA 80, constitute an up to date version of the Act. It is planned that a loose leaf version of the Act, incorporating all the amendments in one document, will be issued in the near future.
Industrial Relations Legislation Amendment Act 1991
5.The amendments which are of particular importance to Operational staff are summarised below. Unless otherwise stated, the amendments commenced on the date of Royal Assent (27 June 1991).
6.Section 4 of the IRLA Act made several amendments to the definitions contained in section 4 of the CERC Act, including:
Injury - The definition of "injury" was amended to make it clear that the Act applies to an aggravation of a pre‑existing injury. This amendment was retrospective to 1 December 1988.
Medical treatment - The definition of "medical treatment" was extended to include therapeutic treatment by an osteopath without referral by a medical practitioner.
Commonwealth authority - The definition has been extended to allow the Minister to declare that the Act applies to:
-a body corporate incorporated under a law of a Territory in which a Territory (other than the NT) has a controlling interest. This amendment was necessary to ensure continuity of cover for any ACT Government Business Enterprises which may be corporatised (none has to date); and
-a body corporate in which a Commonwealth authority (such as Australian Airlines, ANL Ltd) has a controlling interest.
Employee - The definition was amended by the Opposition to make it clear that "employee" includes a person over 65. (This amendment, however, does not affect the operation of subsection 23(1) of the Act.)
7.Subsection 8(3) - Section 5 of the IRLA Act amended subsection 8(3) of the Act to delete the reference to temporary employment. This means that full time temporary employees are now in the same position as full time permanent employees. That is, no regard should be had to any income they earn from non‑Commonwealth employment.
8.Delegation by Rehabilitation Authority - New section 41A permits Secretaries to Departments and principal officers of Commonwealth authorities to delegate their rehabilitation powers and functions to persons employed by the Department or authority.
9.Compensation not recovered where damages paid under s.45 - Section 7 of the IRLA Act amended section 48 of the Act by inserting a new subsection 48A. The effect of the new subsection is to ensure that claimants who elect to sue the Commonwealth under section 45 of the Act do not have to repay any compensation that they had received out of their award of damages.
10.Costs of AAT appeals - Section 8 of the IRLA Act amended section 67 of the Act to allow the AAT to order that the costs incurred by a claimant in cases in which the Commonwealth has appealed are to be borne:
by Comcare, if the decision is less favourable to the claimant; or
by the Commonwealth in any other case.
11.Sections 9, 10, 11 and 12 of the IRLA Act recast the provisions of the Act that deal with the calculation, approval and payment of premiums. These provisions are not covered in this Operational Advice but can be found in Comcare's Guide to Premiums.
12.Injuries suffered before 1 December 1988 - Sections 14 and 15 of the IRLA Act inserted new section 123A and subsection 124(1A). These provisions are intended to ensure that employees who were entitled to compensation under the 1930 Act or the 1971 Act remain entitled to compensation under the 1988 Act and do not have to satisfy the tests of entitlement contained in the 1988 Act.
13.New section 123A makes it clear that a reference to an injury in the transitional provisions of the Act means an injury as defined in any of the repealed Acts as in force when the injury was sustained.
14.New subsection 124(1A) removes any doubt that an employee continues to be entitled to compensation under the Act in respect of an injury sustained before 1 December 1988 if compensation was, or would have been, payable in respect of that injury under any of the repealed Acts.
15.New section 123A and subsection 124 (1A) are deemed to have commenced on 1 December 1988.
16.New section 128A ‑ Section 17 of the IRLA Act inserted a new section 128A to providelegislative authority for the administrative arrangements agreed between Comcare, the Department of Finance and off‑budget authorities before the Act commenced on 1 December 1988. Under these arrangements, the authorities concerned remained liable to pay compensation to their employees who were injured before the premium system commenced on 1 July 1989. New section 128A provides that the liability to pay compensation for injuries suffered prior to 1 July 1989 is to be discharged by those authorities and not Comcare. A list of the authorities concerned is set out in new subsection 128A(4). The amendment is deemed to have commenced on 1 December 1988.
17.Applications for review commenced prior to 1 December 1988 ‑ Section 18 of the IRLA Act made two amendments to section 129 of the Act, both of which are deemed to have commenced on 1 December 1988. The first makes it clear that a determination under the 1971 Act is to be treated as a determination under the 1988 Act for the purposes of the review permitted by subsection 129(1).
18.The second amendment (new s129(3)) relates to AAT proceedings instituted but not completed before 1 December 1988. The effect of the amendment is to allow the claimant to recover the costs incurred by him or her in the proceedings.
19.New subsection 129A ‑ Reconsideration and review of certain determinations under the 1971 Act ‑ Section 19 of the IRLA Act inserted a new section 129A which ensures that Comcare may, on its own motion, reconsider a determination made under the 1971 Act as if the person in respect of whom the determination was made was a claimant under the 1988 Act and the determination had been made by Comcare. Comcare's decision on reconsidering such a determination is a "reviewable decision" for the purposes of the 1988 Act, thereby allowing the claimant to appeal to the AAT.
20.New section 129A is deemed to have commenced on 1 December 1988.
21.For further information, please contact David Macgill on (06) 275 0057.
PETER SKEEN
A/g Deputy Chief Executive