Workers’ Compensation & Injury Management Amendment (Covid-19 Response) Bill 2020


This Bill does a number of things in response to issues arising from the COVID-19 pandemic as well as addressing one or two other matters, the most significant being the issue of the termination date for electing to make common law claims.

COVID-19 Response

Addressing the COVID-19 issues are amendments to the Act creating greater flexibility in regard to the adjustments to the prescribed amount and to Amount C under Schedule 1, and ensuring that these amounts cannot reduce as a result of the application of the current formula for the adjustment by reference to (negative) changes in average weekly earnings.

Both the prescribed amount and Amount C are now defined as “adjustable amounts” and their movement subsequent to one 30 June 2021 may be determined by regulation.

The Minister’s press release when introducing the provisions also emphasised the desire to remove impediments that might arise in dealing with claims made by healthcare workers who have contracted COVID-19 in the course of their duties and to ensure that such claims will not be at risk of over complication when assessing causal factors.

A new Division 4B is created which deals with “injury: prescribed diseases“.  Within this Division, section 49F is introduced.  The main feature of the section is to delegate to regulations the provisions around determination of a “prescribed disease” and “prescribed employment” along with a presumption of causation when a prescribed disease is contracted in a prescribed employment, which is of course relevant to health care workers in the present environment.

Termination Date

Separate to the above is the introduction of amendments whereby the “termination date” is removed as a feature of the Act, finally expressing in written form, what has been the subject of discussion and speculation for many months.  In the Bill this is achieved by deleting section 93L(1) and (4) and sections 93M to 93O, along with the amendment of sections 93Q and 93R.

One question that is likely to arise is whether there is still a need for the provisions for notice of the expiry of the limitation period, given that election is still required.  Provisions similar to s93O would need to be considered and with those thoughts in mind, there could be further scope for fine tuning in regard to other provisions. An example is section 93L(3), which makes reference to the now non-existent s93N.

Transition

Part IV Division 2 Subdivision 4 is inserted whereby section 93T provides for transitional arrangements for the termination date.  Essentially, the provision enables an election to take common law proceedings to be registered after the commencement date of the Amendment Act regardless of whether or not the termination date under the repealed provisions had passed.

Electronic Processes

Finally, section 314A is inserted for the purpose of facilitating electronic processes.  Also in keeping with the thinking behind much of what is anticipated will be found in the complete rewrite, yet to be released, this creates a definition of “document” which is very broad and allows regulations, yet to be created, to provide for means whereby a document may be “given” to a person under the provisions of the Act.

Given the “COVID-19” connection, it is likely that this Bill will move rapidly towards implementation, although subject to some opportunity for stakeholder input.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.

For any further information, please contact Vidal Hockless, Partner – vhockless@kottgunn.com.au