Two bills introduced in WA to reduce barriers impacting claims related to COVID-1916 July 2020
Two bills amending the Workers’ Compensation and Injury Management Act 1981 and industrial relations legislation were introduced in response to the COVID-19 pandemic. The legislation is particularly aimed at reducing barriers that might impact claims made by healthcare workers who have contracted COVID-19 during the course of their employment.
Proposed amendments to the Workers’ Compensation and Injury Management Act 1981 (the Act) from the Workers’ Compensation and Injury Management Amendment (COVID-19 Response) Bill (the Bill) are highlighted below.
No decreases to the prescribed amount for injured workers despite COVID-19 effects on economy
Indexation (increases or decreases) for the various prescribed amounts under the Act will be adjusted to ensure the prescribed amounts for weekly payments in total and for the gross maximum weekly rate do not decrease from 1 July 2021.
The specific methodology is yet to be published.
Section 14 of the bill deletes s 315 of the Act, which relates to prescribed amounts as previously indexed and definitions concerning amounts A (amount A to presumably take the meaning of s 5A(1A) of the Bill and to be covered by subsequent regulations and C (see below or s 15 of the Bill).
Section 15 refers to Amount C and has the meaning given in s 5A(1A) meaning for a financial year ending before 1 July 2020, the amount worked out under cl 11(2) as in force on 1 July of that year. For the financial year ending 30 June 2021, the amount is $2,645.80, otherwise as addressed above, the amount will be covered by regulations.
Industrial diseases definition includes extra diseases prescribed by regulation
The regulations specify prescribed diseases excluding those defined in ss 33 and 34, such as pneumoconiosis, mesothelioma, lung cancer, diffuse pleural fibrosis, chronic bronchitis and pneumoconiosis.
Similar to the existing s 44, shifting of the onus of proof is also maintained for these extra diseases. For those who have suffered an injury or worked in prescribed employment at any time before suffering the injury, the prescribed employment is considered a contributing factor and, to a significant degree to the prescribed disease, unless the employer proves otherwise.
In s 44, the Act already stipulates that if an individual is to produce a certificate that states the disease is one of the communicable diseases in column 1 of Schedule 3 (spread by person to person like COVID-19), such diseases are considered to have been due to the nature of the employment, unless the employer proves otherwise.
The Bill simply affirms COVID-19 as an industrial disease and maintains the shifting of the onus of proof.
Removal of the termination date
Common law—the termination date is to be removed by deletion of all the sections establishing the termination date regime. There will be no procedure for making workers comply with the termination date regime or apply for special evaluations or extensions. The only limitation for workers will be the “3 + 3” year limitation period.
Streamlining electronic management of paperwork
The Bill introduces and facilitates electronic processes of all paperwork for applications for conciliations and arbitrations received by WorkCover.
Amendments proposed by the Industrial Relations Legislation Amendment Bill 2020
The second Bill is the Industrial Relations Legislation Amendment Bill 2020, proposing significant amendments to the Industrial Relations Act 1979, the Long Service Leave Act 1958 (LSL Act) and the Minimum Conditions of Employment Act 1993.
The section of relevance to workers’ compensation and COVID-19 relates to long service leave.
Definition of continuous employment
The proposed amendments to s 6 of the LSL Act states that in calculating an employee’s continuous employment with an employer, absences from work are included, whether paid or unpaid, and irrespective of the duration including leave for illness or injury, carer’s leave and any other form of leave provided as part of the employee’s employment.
The clear intention of this change appears to be to address those employees who have been off work as a result of COVID-19 stand down directions. Whether employees are covered by COVID-19 leave or otherwise, an absence of work will be counted as continuous work which could qualify the employee for long service leave sooner than previously anticipated.