A key aim of the State Government’s new workers compensation scheme is to contain the costs of the Compensating Authority.
The Government seeks to achieve this aim through several measures, including the enhancement of provisions directed towards return to work.
The current return to work obligation imposed on the employer under section 58B(1) is retained under the new scheme.
Additionally the new scheme enables an injured worker to formally seek suitable employment from their employer.
The Injured Worker’s Right to Seek Suitable Employment
Section 18(3) of the new scheme provides for the right to apply for new work which involves the following:
- The injured worker providing written notice of their request to return to work;
- The confirmation by the injured worker that they are ready, willing and able to return to work with the employer; and
- The provision by the injured worker of information about the type of employment that they are capable of performing.
An employer may respond to a written request from an injured worker that they are able to return to work.
Return to Work Remedy
An injured worker is also provided with a simple and direct remedy for their return to work.
A failure by the employer to respond, within a reasonable time, to a formal request for a return to work enables the injured worker to apply to the Tribunal for an order that the employer provide them with suitable employment (section 18(3) of the RTW Act).
The Tribunal will have the power to make an order subject to a reasonable test that the employer provide the injured worker with employment.
Time Limit for Seeking Return to Work Remedy
No time limit has been set as to when an injured worker must make an application to the Tribunal seeking an order that their employer provide them with employment.
The Tribunal’s power is simply enlivened when the employer fails, within a reasonable time, to provide suitable employment to the injured worker.
The Tribunal may order that the employer provide employment, including after the first 104 week period when the right to compensation payments may have ceased.
Costs
Significantly, the Tribunal may also order that the employer pay the injured worker’s costs of the dispute regarding the provision of employment.
In the absence of such an order the Compensating Authority is liable for the costs of both the worker and the employer.
Implication for Employers
An employer of an injured worker will need to be in a position to appropriately respond to a request to return to work with the employer.
The policies and practices of an employer may need to be reviewed to ensure compliance with the enhanced return to work provisions of the new scheme.
In practice, the enhanced return to work provisions can be expected to operate as a cost shifting exercise from the Compensating Authority to employers.
