Page 539 - Week 02 - Thursday, 9 March 2006
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60 and 64 years and six months. This bill overcomes this disparity by replacing references to the pension age with a reference to the age of 65 years.
The bill will also rectify an anomaly in the way compensation payments will be calculated when a worker remains partially incapacitated for 26 weeks. Under section 39 of the act, as amended by the Workers Compensation Amendment Act, the amount of compensation a worker is entitled to during the first 26 weeks of injury is calculated as the difference between the average pre-incapacity earnings and the average weekly amount the worker is earning or could earn in reasonably available suitable employment.
After 26 weeks, the calculation of the amount of compensation that a partially incapacitated worker is entitled to does not take into account the income that the worker could receive from reasonably available suitable employment. The amendment to section 42 will ensure that it is consistent with section 39 and that earnings from reasonably available suitable employment will be considered in calculating payments. This should encourage injured workers to undertake suitable work where it is available. It is consistent with the general policy objective of the act of using rehabilitation and return-to-work programs to enhance recovery and thereby reduce the costs for employees, employers and insurers of workplace injuries.
Most stakeholders in the workers compensation scheme have operated on the basis that the costs associated with rehabilitating an injured worker to enable them to return to work are compensable under the act. A Supreme Court decision in 2004, however, found that the cost of rehabilitation is not compensation payable under the act. While the decision recognised that the act required employers to provide occupational rehabilitation, this was seen as discrete from the obligation to pay compensation.
Rehabilitation programs are of essential importance to the ACT workers compensation scheme, which aims to minimise the duration of injury through early rehabilitation, thereby reducing the costs of work-related injuries. While the Supreme Court decision casts doubt as to how rehabilitation costs will be compensated, it is understood that insurers and employers have generally operated on the basis that these costs could be recovered. It is therefore reasonable to assume that insurers have factored this into policies that have been negotiated with employers since the 2002 amendments were introduced.
The bill will clarify this situation and will ensure that workers continue to have access to rehabilitation programs. This is achieved by clarifying that employers are liable to compensate workers for the costs of rehabilitation services under the worker’s personal injury plan. This will ensure these costs are recoverable and will encourage employers and insurers to continue to provide high-quality and meaningful rehabilitation return-to-work programs.
The bill also addresses the uncertainty that currently exists with family day care and in-home carers who are registered with but not employed by a commonwealth-approved service. The service considers that these carers are self-employed, and this has created uncertainty about where responsibility for obtaining workers compensation for the carers lies. The bill will allow the minister to declare that family day care and in-home carers registered with commonwealth-approved services are workers for the purposes of the act, either on request from the service or on the minister’s own initiative. This will allow all
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