Members Urgent Feedback required for proposed S18 changes to the Act

Thursday 29 June 2023

Return to Work  (Employment and Progressive Injuries) Amendment Bill

The South Australian Government has provided SISA with a draft of the Return to Work (Employment and Progressive Injuries) Amendment Bill for consultation. A copy of the draft Bill is below:

Return to Work (Employment and Progressive Injuries) Amendment Bill 235KB

 

SISA is required to provide its submissions on the draft Bill by no later than 25 August 2023. We ask SISA members if they can provide feedback and preferably evidence of any adverse impact to their business, to SISA by 31/7/23, to enable SISA to then prepare it’s submission and lodge with the Government.

The Bill proposes making changes to section 18 of the Return to Work Act 2014 which, if passed, could have a significant impact on self-insured employers and registered employers of all sizes.

The Bill also proposes changes which will impact the payment of compensation for workers with dust diseases such as asbestosis and silicosis.

SISA intends to make submissions to the Government on behalf of SISA members and is therefore seeking member feedback.

With assistance from Gilchrist Connell Lawyers, SISA has considered the Bill and highlights some of the key proposed changes below:

Changes to Section 18 of the RTW Act – the Employer’s Obligation to Provide Suitable Employers

Section 18 of the RTW Act already imposes an onerous obligation on South Australian employers to provide suitable employment to an employee with a work injury. The proposed changes in the Bill will make that obligation even more onerous. Key proposed changes include:

1. Reducing the time for an employer to formally respond to a request by a worker for suitable duties from one month to 21 days.
2. Allowing workers to bring section 18 Applications in the South Australian Employment Tribunal even after they have recovered sufficiently to return to their pre-injury employment – but for those workers (and only those workers), a 6 month time limit will apply to make their Application.
3. Giving the Tribunal greater power to frame a suitable employment order – including giving the Tribunal power to determine the nature of the duties to be provided, the nature of any modifications necessary to enable the worker to perform those duties, the number of hours of work per week to be performed by the worker, and, if relevant, to provide for a graduated increase in duties or hours of work.
4. If the Tribunal makes an order requiring suitable duties to be provided, the Tribunal will have the power to order the employer to pay backpay of wages or salary equal to what the worker would have received had the employer provided suitable employment when requested by the worker. This seems to SISA to have the potential effect of extending liability for weekly payments to an injured worker well beyond the two year entitlement period.
5. In the case of an employer that is:
   1. A member of a group of self-insured employers comprised of related bodies corporate – the Tribunal will have the power to order another member of the group provide suitable employment even though it is not the pre-injury employer;
   2. The Crown or a Crown Agency – the Tribunal will have the power to order another agency to provide suitable employment even though it is not the pre-injury employer.

The Government has explained that, this means, if suitable employment cannot be provided by the pre-injury employer, the Tribunal may order employment to be provided by another member of the self-insured group. For example, a worker injured in one government agency may seek suitable employment in a different agency, or a worker injured in a supermarket may seek suitable employment in a warehouse owned by the same self-insured corporate chain.  In SISA’s view, this would be a significant and potentially wide sweeping change impacting not just the employer but also their related companies.

Labour Hire and Host Employer Obligations

The Bill also proposes significant changes which will impact both labour hire and host employers. Key proposed changes include:

1. If a worker was a labour hire worker at the time of the work injury and the injury arose from employment while the worker was supplied to a host employer, the worker will now be able to request that the host employer cooperate with the pre-injury employer in the provision of suitable employment to the worker.
2. The Tribunal will be given power to order a host employer “cooperate” with the pre-injury employer to provide suitable employment.  SISA has an initial concern that this proposed power extends to host employers being ordered to provide suitable employment without being a party to the Tribunal proceedings or having any avenue for review rights.
3. A host employer will be required, to the extent that it is reasonable to do so, to co-operate with a labour hire employer, in respect of action taken by the labour hire employer in order to comply with its obligation to provide suitable employment to a worker.  Amongst other things, this will require a host employer to provide access to their workplace and to provide duties at the host employer’s workplace consistent with the worker’s capacity. 

As noted above, there are also other changes proposed by the Bill including changes for workers who suffer from dust diseases and members are encouraged to read the entire Bill and to provide written feedback to SISA.