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This is a Bill, not an Act. For current law, see the Acts databases.
WORKERS COMPENSATION (DEFAULT INSURANCE FUND) AMENDMENT BILL 2009 (NO 2)
2009
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Industrial Relations)
Workers
Compensation (Default Insurance Fund) Amendment Bill 2009 (No
2)
Contents
Page
2009
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Industrial Relations)
Workers Compensation
(Default Insurance Fund) Amendment Bill 2009 (No 2)
A Bill for
An Act to amend the
Workers Compensation Act
1951
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Workers Compensation (Default Insurance Fund) Amendment
Act 2009 (No 2).
(1) The following provisions commence on the day after this Act’s
notification day:
• section 3
• section 4
• section 5
• section 6
• section 10
• section 15
• section 16
• section 17
• section 18
• section 19.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
(2) The remaining provisions commence on a day fixed by the Minister by
written notice.
Note A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
(3) The Legislation Act, section 79 (Automatic commencement of postponed
law) does not apply to subsection (2).
This Act amends the Workers Compensation Act 1951.
substitute
13 Liability of principal for uninsured
contractor’s injured worker
(1) This section applies if—
(a) a person carrying on a business (the principal) enters
into a contract with another person (the contractor) to carry out
work that is part of the principal’s business (the contracted
work); and
(b) a worker employed by the contractor becomes an injured worker (the
injured worker) while carrying out the contracted work;
and
(c) the contractor is uninsured.
(2) The principal is liable to pay to the injured worker any compensation
that the principal would have been liable to pay if the worker was employed by
the principal.
(3) If this section is relied on to make a claim for compensation, or
bring any other proceeding, against a principal, then, in the application of
this Act to the claim or proceeding—
(a) a reference in this Act to an employer is taken to be a reference to
the principal; but
(b) any calculation of the earnings of the injured worker must be based on
the earnings paid or payable to the worker by the contractor that employed the
worker.
(4) If a principal is liable under this section to pay compensation to an
injured worker, the principal is entitled to be indemnified by—
(a) if the principal is uninsured within the meaning of paragraph (a)
of the definition of uninsured—any person, other than the DI
fund manager, who would have been liable to pay compensation to the worker
independently of this section; or
(b) if the principal is uninsured within the meaning of paragraph (b)
of the definition of uninsured—any person, including the DI
fund manager, who would have been liable to pay compensation to the worker
independently of this section.
(5) Nothing in this section prevents a worker claiming compensation
against a contractor instead of a principal.
(6) In this section:
uninsured, in relation to a principal or a contractor, means
the principal or contractor—
(a) does not have a compulsory insurance policy in force that applies to
an injured worker mentioned in subsection (1) in relation to an injury;
or
(b) has a compulsory insurance policy in force that applies to the injured
worker in relation to the injury but the policy was issued by an insurer
that—
(i) cannot provide the indemnity required to be provided under the policy;
or
(ii) has been wound up.
5 DI
fund manager required to pay weekly
compensationSection 30
omit
substitute
166A Purpose of DI fund
(1) This section sets out the objects of the DI fund so far as this Act
allows.
(2) The DI fund must meet the cost of compensation to an injured worker if
the employer of the injured worker does not have a compulsory insurance policy
to cover the worker for the claim.
(3) The DI fund must meet the cost of compensation by indemnifying an
employer for compensation payable by the employer to an injured worker only
if—
(a) the employer has a compulsory insurance policy in force that applies
to the injured worker for the injury forming the basis of the claim but the
policy was issued by an insurer that—
(i) cannot provide the indemnity required to be provided under the policy;
or
(ii) has been wound up; or
(b) the employer is a self insurer and the employer is unable to pay the
injured worker’s compensation.
(4) The DI fund must meet the cost of an employer’s liability that
arises independently of this Act in relation to an injury to, or the death of, a
territory worker of the employer if the employer of the worker does not have a
compulsory insurance policy to cover the liability, by paying an amount that
satisfies or discharges the liability to a person entitled to that
amount.
(5) The DI fund must meet the cost of an employer’s liability
arising independently of this Act in relation to an injury to, or the death of,
a territory worker of the employer by indemnifying the employer, only
if—
(a) the employer has a compulsory insurance policy to cover the liability
but the policy was issued by an insurer that—
(i) cannot provide the indemnity required to be provided under the policy;
or
(ii) has been wound up; or
(b) the employer is a self insurer and the employer is unable to cover the
liability.
Note Section 170F, s 170G, s 170H and s 170HB deal with claims for
payment against the DI fund for employers’ liability, arising
independently of this Act, in relation to injury or death of a territory
worker.
7 Payments
out of DI fundSection
166B (1) (d)
omit
8 Borrowing
for DI fundSection
167B (2) (b)
omit
section 168A
substitute
section 168A or section 168AA
in division 8.2.3, insert
167E Assessment of financial
position
(1) Each year, the DI fund manager must assess the DI fund’s
financial position.
(2) In assessing the DI fund’s financial position, the DI fund
manager—
(a) must take into account—
(i) the written advice of the DI fund actuary about existing and
expected liabilities of the fund; and
(ii) the assets of the fund; and
(b) may take into account any other information which, in the opinion of
the DI fund manager, is relevant to an assessment of the DI fund’s
financial position.
in division 8.2.3, insert
167F Determination that policy in force despite
absence of record
The DI fund manager may determine that an employer has a compulsory
insurance policy in force that applies to an injured worker for an injury
forming the basis of a claim for compensation if—
(a) the employer cannot produce a record of the policy; and
(b) the DI fund manager is satisfied that it is reasonably likely that the
employer has the policy.
11 Contributions
to DI fund by approved insurers and
self-insurersSection 168A (1) to (4)
and note
substitute
(1) Each year, the DI fund manager must determine the yearly contribution
(the annual insurer contribution) approved insurers and
self-insurers must make to the DI fund based on the following:
(a) the DI fund manager’s assessment of the DI
fund’s—
(i) existing and expected liabilities; and
(ii) assets;
(b) the total of the following amounts for the last completed policy
period:
(i) the gross written premiums for each approved insurer;
(ii) the notional gross written premium for each self-insurer;
(c) the amount required to be paid into the DI fund to ensure the
sustainable functioning of the fund.
(2) The DI fund manager may apportion the annual insurer contribution
among approved insurers and self-insurers to be paid—
(a) quarterly; or
(b) as required for the sustainable functioning of the DI fund.
(3) If the DI fund manager makes an apportionment for a period, the
manager must give each approved insurer and self-insurer a written notice
that—
(a) sets out details of the apportionment; and
(b) requires the insurer or self-insurer to pay to the DI fund the amount
apportioned to the insurer or self-insurer within the time for payment stated in
the notice.
Note An insurer issuing a compulsory insurance policy to an employer
must include information about the proportion of the premium that is to offset
an amount paid by the insurer to the DI fund for the policy (see Workers
Compensation Regulation 2002, s 62A).
insert
(9) In this section:
gross written premiums, in relation to an approved insurer,
means the total amount of premiums, less GST, for all insurance policies written
by the insurer for a policy period.
notional gross written premium, in relation to a
self-insurer, means the total amount of premium that would have been payable,
less GST, if the self-insurer had obtained a compulsory insurance policy for a
policy period.
policy period means the period beginning on 1 July in a year
and ending on 30 June in the following year.
insert
168AA Supplementary contributions to DI fund by
approved insurers and self-insurers
(1) This section applies if—
(a) the DI fund manager has made a determination of the annual insurer
contribution for a year under section 168A (1); and
(b) after the determination was made an unusual claim or class of claim
(an unexpected claim) that was not reasonably foreseeable at the
time the determination was made—
(i) is brought against the DI fund in the year; and
(ii) is, in the opinion of the DI fund manager, a claim that will be
settled in the year; and
(c) the DI fund manager is of the opinion that the DI fund cannot meet the
cost of the unexpected claim.
(2) The DI fund manager must determine and apportion a supplementary
annual insurer contribution that approved insurers and self-insurers must make
to the DI fund to allow the fund to meet the cost of the unexpected claim for
the year.
(3) Section 168A (2) and (3) apply to the apportionment of a
supplementary annual insurer contribution under this section as if the
contribution were an annual insurer contribution.
14 Refunds
of excess DI fund amountsSection
168B
omit
substitute
170 Who may make claim for
payment
A person may make a claim for payment against the DI fund
(a claim for payment) if the person—
(a) is—
(i) an injured worker (the injured worker) who sustained an
injury (the injury) that forms the basis of the claim for payment;
or
(ii) a person appointed to represent the injured worker; or
(iii) if the injured worker has died leaving a dependent—a dependent
of the injured worker; or
(iv) if the injured worker has died leaving no dependents—a person
acting on behalf of the estate of the injured worker; and
(b) cannot make a claim against a person other than the employer of the
injured worker for—
(i) payment of compensation for the injury under this Act; or
(ii) damages for the injury arising independently of this Act;
and
(c) is eligible to make a claim for payment under any of the following
provisions:
(i) section 170E (Claim for payment if employer to pay and liability not
covered by compulsory insurance policy etc);
(ii) section 170F (Claim for payment if final judgment etc and liability
not covered by compulsory insurance policy);
(iii) section 170G (Claim for payment if agreement to discharge liability
at common law and liability not covered by compulsory insurance
policy);
(iv) section 170H (Claim for payment if final judgment etc and liability
covered by compulsory insurance policy);
(v) section 170HA (Claim for payment if entitlement to claim compensation
and self-insurer unable to pay compensation);
(vi) section 170HB (Claim for payment if final judgment etc and
self-insurer unable to cover liability);
(vii) section 170I (Claim for payment if entitlement to claim compensation
and liability covered by compulsory insurance policy).
16 New
sections 170HA and 170HB
insert
170HA Claim for payment if entitlement to claim
compensation and self-insurer unable to pay compensation
(1) This section applies if—
(a) a person has made a claim against an employer for compensation in
relation to a territory worker employed by the employer; and
(b) the employer is a self-insurer; and
(c) either—
(i) the employer has agreed to pay compensation; or
(ii) the liability of the employer to pay compensation has been
established; and
(d) the employer is unable to pay the amount of compensation.
(2) The person is eligible to make a claim for payment against the DI fund
for payment of the amount of compensation.
170HB Claim for payment if final judgment etc and
self-insurer unable to cover liability
(1) This section applies if—
(a) a person has obtained a final judgment, or an order or award has been
made against an employer; and
(b) the employer is a self insurer; and
(c) the judgment, order or award relates to the employer’s liability
independently of this Act in relation to an injury to, or the death of, a
territory worker of the employer; and
(d) the employer is unable to cover the liability.
(2) The person is eligible to make a claim for payment against the DI fund
of the amount of the judgment, order or award that remains
unsatisfied.
17 DI
fund paying claims for payment if liability not completely covered by a
compulsory insurance policy and settlement
approvedSection 171D (1) (a) and
note
substitute
(a) the claim was made by a person who—
(i) is mentioned in section 170 (a); and
(ii) is eligible to make a claim for payment under section 170E,
section 170F or section 170G; and
Note Under s 170E, s 170F and s 170G, the employer’s liability
is not covered by a compulsory insurance policy.
substitute
171E DI fund paying claims for payment against
approved insurers and self-insurers if settlement approved
19 Section
171E (1) (a) and note
substitute
(a) the claim was made by a person who—
(i) is mentioned in section 170 (a); and
(ii) is eligible to make a claim for payment under section 170H,
section 170I, section 170HA or section 170HB; and
Note Under s 170H and s 170I, the employer’s liability is
covered by a compulsory insurance policy but the insurer has been wound up or
cannot provide the indemnity required to be provided under the policy. Under s
170HA and s 170HB the employer is a self-insurer unable to cover
liability.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2009.
2 Notification
Notified under the Legislation Act on 2009.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2009
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