Workers Rehabilitation and Compensation Act 1988(Tas)

The Workers Compensation Act 1927 (Tas) covers those who have been injured at work prior to the 15th November, 1988. This Act has been repealed, and replaced with the Workers Rehabilitation and Compensation Act 1988 (Tas), which applies to all those persons injured at work after the 15th of November 1988. However, the Workers Compensation Act 1927 continues to apply for workplace injuries before this date (s4(4) of the 1988 Act).

If a person is seeking to begin an action under the 1927 Act, it is best to seek legal advice.

Employees of the Commonwealth Government are covered by the Commonwealth Safety Rehabilitation and Compensation Act 1988 (Cth), and members of the Defence Forces are covered by the Military Rehabilitation and Compensation Act 2004 (Cth). Only the Safety, Rehabilitation and Compensation Act is discussed here, and only briefly.

To obtain compensation, it is not necessary to prove fault or negligence by the employer, and there are only limited circumstances where employees’ own acts will deprive them of compensation.

Compensation is payable to ‘workers’. ‘Worker’ means any person who works under a contract of service or training with an employer.

The Act does not apply to:

• persons covered by the Commonwealth Safety Rehabilitation and Compensation Act 1988;
• employees whose employment is of a casual nature and who are employed otherwise than for an employer’s trade or business;
• outworkers;
• a domestic servant who has not completed 48 hours of employment at the time of injury; or
• a member of a crew of a fishing boat remunerated wholly or mainly by a share in the profits of the boat.

Police officers are covered under the Act. The Act does not cover persons who are contestants in sporting activities except in very limited circumstances (s7) but may apply to clergymen in some circumstances and to volunteer firefighters and ambulance officers.

The Act set up a system of compulsory insurance. All employers must insure with an insurer. There are limited rights available to employers to become self-insurers, but only the largest employers can usually do this. If an employer is uninsured, an injured employee may claim against the Nominal Insurer, a scheme to which all participatory insurers contribute. The Nominal Insurer is then entitled to recover from the employer the amount of any compensation paid.

Definitions

The definition of ‘worker’ prevents employers pretending that workers are really contractors. The Act says that where the employer employs a contractor to perform work of more than $100 and the work is not part of a more general trade or business carried on by the contractor in the contractor’s own name, then the contractor is deemed to be an employee (s4B). However if the person has taken out their own personal injury insurance they are to be treated as an independent contractor.

The definition of injury includes a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease (s3).

The Commonwealth Acts

The Safety Rehabilitation and Compensation Act 1988 (the Commonwealth Act) covers Commonwealth employees, the Military Rehabilitation and Compensation Act 2004 (Cth) covers members of the Defence Force who are injured at work if the injury results in death, incapacity for work or impairment.

Employees of the Commonwealth government of Australia, or a prescribed authority of the Commonwealth (such as Telstra) can claim workers compensation against the Commonwealth. The rights are similar to those available at state level – weekly payments, lump sums for permanent impairment, medical and other expenses, death benefits, rehabilitation and access to common law damages.

The procedure to be followed is as follows: the worker must lodge a claim form with their employer. The employer passes this on to Comcare, or in the case of a licensed authority, such as Telstra, this is a matter handled internally. The matter is then investigated and a determination is made.
A determination can either be an acceptance or denial of liability. An acceptance will lead to a calculation of the compensation payable. A denial may result in the termination of any payments that were being made, or the rejection of any other associated claims, such as a lump sum or death benefit claim.

Two avenues of appeal are available. An employee may request a reconsideration from Comcare or the licensed authority. If the rejection is affirmed, then the worker has recourse to the Commonwealth Administrative Appeals Tribunal.

As with state compensation, it is recommended that a person seek legal advice from a legal representative recommended or employed by their trade union, or a legal representative of their own choosing.