What if a worker is not residing in WA? 

The new Workers Compensation and Injury Management Act 2023 (the Act) retains the requirement for a worker who is not residing in WA to provide a declaration about their incapacity for work to the relevant insurer or self-insurer at prescribed intervals (likely every three months). 

However, the entitlement will not cease if a worker fails to provide the declaration in time. Instead, the Act sets out a process by which an insurer or self-insurer may suspend income compensation payments: 

• Before taking any action, an insurer or self-insurer needs to give the worker a written warning notice reminding them of their obligations to provide the required declaration before the due date. 
• The notice must also warn the worker that the payment of income compensation will be suspended from a specified date if the worker fails to provide the declaration. 
• The warning notice cannot be issued to a worker earlier than 14 days before the last day the worker has to provide the declaration. 
• The date specified as the suspension date must be at least 14 days after the warning notice is given to the worker and cannot be earlier than the last day the worker must provide the declaration. 
• Payment of income compensation will be suspended from the specified date until the worker provides the required declaration to the insurer or self-insurer.  
• The worker’s entitlement does not cease, and income compensation payments must recommence from the date the worker provides the required declaration. 

New obligations for labour hire employers and host organisations 

The new laws include a new obligation for host organisations to cooperate with the labour hire employer and assist them with their injury management obligations if a labour hire worker is incapacitated for work. 

The laws define labour hire employment as: employment of an individual (the employee) under a contract of employment pursuant to which the services of the employee are temporarily lent or let on hire by the employer (the labour hirer) to another person (the host). 

If a worker has an incapacity for work as a result of an injury from employment done for the host, the host will be required to cooperate with the labour hirer and assist them with their obligations to establish and implement a return-to-work program and provide the pre-injury position or a suitable alternative.  

Why should the host have any role in injury management? 

In many labour hire arrangements workers work exclusively for a single host or client organisation for an extended period when suffering an incapacity for work. 

Labour hirers have legislative obligations in relation to maintaining employment for that worker and implementing return to work programs. 

Ideally, the objective is to return the worker to the same position, and that requires cooperation and involvement from the host. The obligation applies to the extent it is reasonable to do so. 

The role of Return to Work (RTW) programs 

Under the Act employers have obligations to establish Return to Work (RTW) programs for partially incapacitated workers, or when required by the worker’s treating medical practitioner. 

An early RTW is the best possible outcome for injured workers and employers, with workers helped to return to work in a timely, safe and durable way.  

An RTW program must, as far as reasonably practicable, be established in consultation with the worker. 

The new laws have no intention to depart from the current approach of specifying minimum standards for RTW programs. 

However, a one-size-fits-all prescriptive approach is not appropriate given the significant variation in the nature and extent of injuries and workplaces. 

Instead, regulations may specify minimum standards or requirements for the establishment, content and implementation of RTW programs, or require RTW programs to be in an approved form or include prescribed provisions. 

CCIWA will be launching a Workers’ Compensation and Injury Management Course this year to ensure Members are prepared for the necessary changes. For expressions of interest, please email [email protected] or call (08) 9365 7746.