Unpacking employer obligations in Australian workers' compensation claims

As October marks Australia’s National Safe Work Month, now is an opportune time for employers to revisit their obligations in response to workers’ compensation claims made by their employees.

Taking a look at the workers’ compensation laws in Queensland, Victoria and New South Wales, it is clear that employers have a responsibility to act promptly and collaboratively.

This article provides an overview of the relevant legislation in each state and the obligations under each state when managing an injured employee.

Queensland rules

Claims in Queensland are governed by the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA). An injured worker will typically have six months from the date of injury, or 20 business days after they are first assessed by a medical practitioner as having an incapacity to work, to lodge a claim.

Once an employer is notified of an injury, either through direct knowledge or a report from the worker or insurer, they must complete and submit a report in the approved form to WorkCover within eight business days. Failure to report the injury in time is an offence under the WCRA.

When the worker receives medical clearance to return to work, the employer, under the WCRA, is obligated to assist WorkCover in facilitating a return-to-work program for the injured worker. This includes taking all reasonable steps to support or provide rehabilitation and will often include providing the worker with a suitable duties plan. If it is impracticable for the employer to put in place such a plan, they must provide WorkCover with written evidence outlining the reasons.

Failure by the employer to participate meaningfully in rehabilitation programs can result in a penalty, requiring the employer to pay WorkCover an amount equal to the compensation paid to the worker during the period of non-compliance.

Additionally, the employer:

• Must not within 12 months of the injury occurring, dismiss the worker solely or mainly because the worker is not fit for employment due to the injury.
• Must, in the circumstance where it seeks to temporarily replace the injured work, provide the replacement worker written notice concerning their temporary nature of employment and the injured worker’s right to return to work.

Victoria workers’ compensation

Claims in Victoria are governed by the Workplace Injury and Rehabilitation and Compensation Act 2013 (Vic) (WIRCA). An injured worker typically has 30 days from the date of injury or the date of discovery of the injury, to lodge a claim with WorkSafe. A Victorian claim form comprises of two parts – Part A for the worker to complete and Part B for the employer to complete and provide to WorkSafe.

Employers are required to keep a register of injuries for injured workers to record the particulars of their workplace injury. Upon receiving notice of an injury, the employer must ensure that the workplace particulars of the injury are entered into the register and provide written confirmation of receiving notice of an injury.

Once a claim has been accepted, the employer will typically be required to pay the first 10 days of the worker’s time away from work in accordance with the worker’s Certificate of Capacity. For claims comprising only physical injuries, the employer also has obligations to contribute to the initial cost of medical treatment for the worker’s injury.

Suitable employment under WIRCA

Under the WIRCA, there is an employment obligation period (which is an aggregate period of 52 weeks post injury date and which does not have to be consecutive) in which the employer must provide the worker suitable employment. This obligation includes providing the worker with access to pre-injury employment once the worker’s incapacity for work has ceased.

In terms of obligations for return-to-work, an employer must:

• Plan for the worker’s return to work from the date on which they became aware of the worker’s incapacity for work.
• Consult with the worker and their medical professionals concerning the plan for return-to-work.
• Notify WorkSafe upon the worker returning to work.

New South Wales claims

 Claims in New South Wales are governed by the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (collectively, the NSW law). The governing body is the State Insurance Regulatory Authority. Typically, workers have six months within which to make a claim.

Employers are to notify iCare within 48 hours of being made aware of the worker’s injury. If the worker cannot return to the pre-injury role within seven days, a treating doctor will be nominated, and a Certificate of Capacity will be completed. As is for Victorian employers, New South Wales employers are also required to keep a register of injuries.

Once a claim is accepted, an employer has the following obligations:

• Participate in the iCare injury management plan for the worker and comply with all written obligations.
• Provide a return-to-work program to the worker in accordance with the injury management plan.
• Provide suitable work to the worker once they are able to return, as far as reasonably practicable, on either a full-time or part-time basis, or at the same level as their pre-injury role.

Under NSW law, an employer must not dismiss the worker because of the injury within six months of the injury occurring.

Collaboration on workers’ compensation claims

It is clear from the legislation that Australian employers have a duty to act collaboratively with both their insurer and injured worker throughout the claim lifecycle. Prompt and responsive action is crucial to ensure that the employee can successfully return to work. Employers should consult with the worker and the worker’s medical professionals, as well as the insurer to facilitate this process.

An early and collaborative return-to-work process can reduce the employee’s time away from the workplace, which benefits the employer by reducing premiums and claim costs. It also helps avoid costs associated with temporarily filling the worker’s role and potential staff turnover. In summary, effectively managing a worker’s compensation is not just a legal obligation – it’s good business practice.

Belinda Hapgood is a Special Counsel at Holding Redlich in Brisbane, specialising in workplace relations and safety. Kelvin Lee is an Associate at Holding Redlich in Brisbane, and Sophie Wyatt is a lawyer at Holding Redlich in Brisbane.

The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.