Changes were passed by parliament on 22 August 2024 that change the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act). Listed below are the key points for employers/business operators to consider.
Wages for injured workers
Weekly compensation entitlements are calculated with reference to an injured worker’s normal weekly earnings or their minimum entitlements under an industrial instrument, for example a modern award. To calculate a worker’s entitlements, the insurer requires information about the worker’s earnings from the worker’s employer. Most employers in Queensland will be covered by WorkCover Queensland (WorkCover), who will issue a notice telling the policy holding employer to provide wages information for an injured employee within five business days. Penalties may apply for non-compliance unless the employer can provide a reasonable excuse.
As at 1 July 2024, the basic weekly payment amount is $1014.59. The basic weekly payment is calculated on the Queensland full-time adult ordinary time earnings (QOTE) and is pro-rated for workers not engaged in full-time work. The QOTE is indexed annually to ensure workers’ compensation benefits maintain their relative value over time.
Employer Obligations
Employers cannot give a worker a benefit (financial or other benefit) or cause detriment to a worker (e.g. threaten to dismiss or disadvantage) to influence them not to apply for compensation. Examples may include, paying a bonus if the worker does not report an injury or the employer offering to pay medical bills rather than the employee filing a claim with WorkCover. The maximum penalty for breaching this provision of the WCR Act is 300 penalty units, which at the time of writing is $48,390. Penalty units are updated at the start of each financial year, so the figure will change over time.
This provision does not remove the obligation that WorkCover policy holders must pay an injured worker in full for the day they were injured, at their normal rate and then an excess equivalent to one week’s compensation, under the terms of the insurance policy. The insurer will provide instructions about the value and deadline for payment of the excess to the employee and that payment must be made within 10 days of receiving the notice. If the employer does not pay the excess to the worker, as instructed, the insurer must make the payment to the worker on the employer’s behalf and may then recover the value of the payment from the employer together with a penalty equal to 50% of the payment as a debt or as an addition to a premium payable by the employer
Employers cannot:
- interfere or act inconsistently with a worker’s rights to choose their own treating medical practitioner;
- be present during their worker’s medical treatment without their worker’s genuine consent; or
- prohibit their worker from seeking advice from a lawyer or their union.
The corollary is that employers can seek the consent of their injured employees (without pressure or intimidation) to escort them to the medical practitioner so that they can assist practitioners to understand the workplace, the employee’s normal duties and to develop efficient return to work plans.
Employers have a right to seek advice from a lawyer or a registered industrial organisation about anything related to the workers’ compensation scheme.
Rehabilitation and return to work (RRTW) Plans
Workers’ compensation laws already require an insurer to develop and maintain a rehabilitation and return to work (RRTW) plan for an injured worker. Insurers are now required to ensure a written RRTW plan is in place within 10 business days of a claim being accepted. New penalties (up to $16,130) apply to employers who fail to comply with their existing obligation to give an insurer written evidence if they consider it is not practicable to provide their injured worker with suitable duties. The insurer will form its own view about whether suitable duties are practicable and must give the employer a reasonable opportunity to make submissions and provide further evidence if the insurer disagrees with the employer’s view. The plan must be prepared in consultation with the injured worker, their employer and their treating doctors and health practitioners to the extent reasonably practicable.
Every injured worker should have a RRTW plan, however the complexity of a plan will depend on the nature of the injury. For a medical expense only claim a RRTW could be a file note of a conversation or email to the worker with details of current medical treatment, suitable duties arrangements and any future reviews and next steps. A plan is to be reviewed and updated as new information becomes available to the insurer.
There will be genuine cases where an employer cannot offer suitable duties for safety or practical reasons and employers are not required to create alternative duties that otherwise do not exist in the business to accommodate an injured worker. The changes to the WCR Act do not penalise employers in those situations. There are existing avenues for insurers to arrange alternative suitable duties with host employers that assist to ensure injured workers can be returned to work as soon as is reasonably possible, in line with medical advice and support from health professionals.
Hosting Labour Hire workers
For business operators using labour hire, they must cooperate with the labour hire provider by taking all reasonable steps to support the provider to meet its rehabilitation obligations for an injured labour hire worker. In practice, this cooperation could involve discussions and agreement between the parties on planning for return to work or stay at work and identification of available suitable duties. Penalties now exist for non-compliance by host employers.
A ‘labour hire worker’ is a person who is party to a contact of service with a labour hire agency or group training organisation that arranges for the person to do work for someone else under an arrangement between the agency or organisation and the other person. The new obligation for businesses hosting labour hire workers applies to any entity who is supplied a labour hire worker. The new obligation does not change the relationship between the worker and the host entity and it does not require hosts to discharge employer obligations for labour hire workers. The new obligation is intended to assist labour hire providers to meet their employer obligations for their workers, to secure the workers’ timely rehabilitation and return to work.
WorkCover has provided some examples of what they consider genuine cooperation between the host employer and labour hire provider will look like:
- Respond as soon as possible to the labour hire provider’s request for assistance and provide a main point of contact at the workplace;
- Provide the labour hire provider and other parties involved in the return-to-work process reasonable access to your workplace;
- Make yourself available for and participate in discussions about providing alternative duties, return-to-work planning and consultation;
- Keep relevant parties (labour hire provider, rehabilitation coordinators, etc) updated about the injured worker’s return to work progress and their duties;
- Consider what options you can provide for suitable duties at your workplace, and how you can be flexible in providing suitable duties;
- Work with the labour hire provider to address any barrier that might prevent a safe return to work;
- Let the labour hire provider know if you cannot provide the injured worker with suitable duties due to legitimate safety reasons and provide a reasonable explanation of those reasons.
If you are unsure about your obligations under the WCR Act or you are dealing with a claim and you require advice or assistance in managing your obligations, our Employment Law team can assist you. You can reach them on 1300 068 736 or by email at [email protected].
