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Changes to legislation

The Return to Work (Employment and Progressive Injuries) Amendment Act 2024

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Understanding some important changes to South Australia’s work injury insurance scheme

Summary of changes:

  • Strengthened protections for injured workers.
  • Faster entitlement access for workers with dust diseases or terminal illnesses.

The Parliament of South Australia recently passed the Return to Work (Employment and Progressive Injuries) Amendment Act 2024- external site- external site which amends the Return to Work Act 2014 (the Act) with most of the changes expected to come into effect on 1 December 2024.

The changes will foster a more supportive and fairer environment for injured workers and more clarity for employers in two important ways. Read the Summary of Changes.- external site

Firstly, the legislation significantly strengthens protections for workers returning to work from injury by extending an employer’s obligation to provide them with suitable employment. It also addresses financial consequences for employers who do not comply with this. These amendments also cover self-insured employers, labour hire employers and host employers.

Secondly, the legislation makes it easier for workers suffering from dust diseases and/or a terminal illness resulting from a work injury to access entitlements more quickly. It achieves this by more clearly defining when a worker’s condition has ‘stabilised’, at which point they may seek a permanent impairment assessment and introduces a fair way to calculate their financial support.

There are other changes relating to attendance at medical appointments, recovery and return to work plans and the South Australian Employment Tribunal (the Tribunal). You can read more detail and access our frequently asked questions below.

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Important detail for employers

Summary of changes:

  • Obligation to provide suitable employment for injured workers when they have some capacity to return to work.
  • Workers may submit written requests for suitable employment with medical evidence; employers have one month to respond.
  • The Tribunal can order specific working conditions and compensation if suitable employment is not provided.
  • Self-insured employers must offer suitable employment across the entire group, not just the workplace where the worker's injury occurred.
  • Host employers must cooperate with labour hire employers but are not required to employ injured workers directly.
  • Employers are not obligated to offer suitable employment if the worker has been terminated for serious and wilful misconduct.

The Act now includes clearer obligations for employers providing suitable employment to workers returning to work from injury.

Employers have a duty to provide suitable employment to an injured worker once that worker has some capacity and can return to work. In most cases this happens easily, with little need of any intervention.

However, if you have a worker wishing to return from injury and have not provided them with suitable employment, they are required to advise you in writing of their request for suitable employment, and the type of employment they consider they’re capable of performing, if they wish to utilise the process provided for in the Act. As the employer, you then have one month to consider their request and advise them in writing whether you will provide suitable employment, either of the kind requested or any other kind of employment you are willing to provide. You must give reasons for any refusal to provide suitable employment or why you are proposing alternative employment options. They can also ask ReturnToWorkSA to investigate and take action regarding a failure to provide suitable employment. If you and the worker cannot agree on suitable employment, the worker then has one month to make an application to the Tribunal to deal with the dispute.

If the Tribunal orders that the injured worker should have been provided suitable employment, it can now specify certain aspects of the employment to be provided. These can include the nature and range of duties, any adjustments to be made to enable the worker to perform those duties and the number of hours to be worked.

The Tribunal can also now order the employer to make a payment to the injured worker for the wages or salary they would have received if the suitable employment had been provided. To avoid double dipping, the Tribunal will take into account any remuneration the worker received from other employment during the intervening period.

If you are a self-insured employer

If you are a self-insured employer as part of a group, where a worker is injured, there is now a duty to provide suitable employment across the group and not just to the employer where the worker was employed pre-injury. For example, a worker injured while working at a supermarket within a corporate group could be provided with suitable employment at an automotive outlet instead, that is a part of the same corporate group. Similarly, a worker injured in one government agency could be offered suitable employment in a different agency. New provisions allow the Tribunal to direct suitable employment within self-insured groups, ensuring fair treatment and reducing the risk of prolonged disputes.

If you are a labour hire employer and/or host employer

There are also changes affecting labour hire employers and host employers, as defined in the Act. Host employers are now required to cooperate with labour hire providers by communicating about suitable employment options, participating in return to work planning and providing access to the workplace by the injured worker for the performance of duties. For clarity, there is nothing in the Act that requires a host employer to directly employ a labour hire worker following a work injury - it is expected the injured worker will remain employed by their pre-injury labour hire employer.

The amendments also provide some benefits for employers.

Subsection 18(2) makes it clear that an employer's duty to provide suitable employment ceases if the worker's employment has been properly terminated on the basis of serious and wilful misconduct, ensuring an employer is not required to continue providing suitable employment where an injured worker has been found to have fundamentally breached their employment obligations. The costs regime for section 18 disputes has been modified so that employers are entitled to have their costs paid in the same way as workers.

This is a precis of the detail; however, the changes to the Act may be read in their entirety at the link here- external site- external site.

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Important detail for workers

Summary of changes:

  • Employers must provide suitable employment when workers have some capacity and are ready to return to work from injury.
  • Workers may submit written requests with medical evidence for suitable employment; employers have one month to respond.
  • The Tribunal can specify work conditions and order payment if suitable employment is not provided.
  • Employers are not required to provide suitable employment if a worker was terminated for serious and wilful misconduct.
  • Self-insured employers must offer suitable employment across the entire group, not just the original employer where the worker's injury occurred.
  • Host employers must cooperate with labour hire employers to facilitate return to work planning.
  • Workers with dust diseases or terminal illnesses can access entitlements more quickly under clarified conditions.
  • Income support can now be calculated based on when exposure occurred or when diagnosed with a dust disease.

The Act now includes clearer obligations for employers providing suitable employment to workers returning to work from injury.

In most cases when you are injured at work and require time away, your employer will provide you with suitable employment when you are able to return. If this is not your experience, you can rely on section 18 of the Act which obliges an employer to provide suitable employment to an injured worker once that worker has some capacity and can return to work.

To use section 18 of the Act, you must advise your employer in writing of your request for suitable employment, including evidence of your medical capacity for work and the type of employment you consider capable of performing. Your employer then has one month to consider your request and advise you in writing whether they will provide suitable employment, either of the kind requested or any other they are willing to provide. Your employer must give reasons for any refusal to provide suitable employment or why they consider alternative employment options to be suitable.

If you and your employer cannot agree on suitable employment, you have one month to make an application to the Tribunal to deal with the dispute. You can also ask ReturnToWorkSA to investigate and take action regarding a failure to provide suitable employment.

If the Tribunal orders that you should have been provided suitable employment, it can now specify certain aspects of the employment to be provided. These can include the nature and range of duties, any adjustments to be made to enable you to perform those duties and the number of hours to be worked.

The Tribunal can also now order the employer to make a payment to you as the injured worker for the wages or salary you would have received if the suitable employment had been provided - taking into account any payment you received from other employment during the intervening period.

However, the Act also makes it clear that an employer's duty to provide suitable employment ceases if the worker's employment has been properly terminated on the basis of serious and wilful misconduct.

Working for a self-insured employer

If you work for a self-insured employer, they now have a duty to provide suitable employment across the group and not just to the employer where you were employed pre-injury. For example, if you were injured while working at a retail store within a corporate group, you could instead be provided with suitable employment at a supermarket that is a part of the same corporate group. Similarly, if you were injured in one government agency, you could be offered suitable employment in a different agency.

Working for a labour hire employer and/or host employer

There are also changes affecting labour hire employers and host employers as defined in the Act. The Act now requires host employers to cooperate with labour hire providers by communicating about suitable employment options, participating in return to work planning and providing access to the workplace for the performance of employment by the injured worker.

Workers suffering from dust diseases or terminal illnesses

The Act now enables quicker and easier access to entitlements for workers with dust diseases or terminal illnesses.

A key principle of the Act is that a work injury must have ‘stabilised’ before a permanent impairment assessment can be undertaken to determine an injured worker's degree of whole person impairment and their entitlement to lump sum compensation and/or other benefits.

Recognising that terminal illnesses may not ‘stabilise’, the Act now includes a clear and concise definition of the term as well as an exception to this requirement for injured workers with terminal illnesses. It also extends this exception to certain work injuries that are of a progressive nature and may not stabilise within the statutory definition – for example, some dust diseases.

Another change is the way in which an injured worker’s entitlement to income support can be calculated. The Act now recognises that a worker may have been exposed to hazardous dust decades before they became incapacitated, so calculating their weekly entitlements on what they were earning at that time they sustained their injury would be unfair. Therefore, injured workers can now choose between setting their average weekly earnings either at the time when they were exposed to the hazardous dust that caused their dust disease or the time they were diagnosed with a prescribed dust disease.

As always, if you have questions, we encourage you to call 08 8233 2545 or email silicosis@rtwsa.com

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Important detail for health practitioners

Summary of changes:

  • Medical evidence from health practitioners is essential for injured workers requesting suitable employment.
  • The Act allows workers with terminal illnesses or progressive diseases to access entitlements without requiring ‘stabilisation’ of their condition.
  • Only medical practitioners can determine if a condition meets the definition of terminal and incurable under the Act.
  • Employers and claims agents cannot attend medical examinations or treatment consultations without the worker's express written consent.
  • Employers and claims agents can attend consultations that discuss the worker’s recovery and return to work plan.

Suitable employment
As a medical professional, your role in providing detailed and accurate medical evidence is critical in determining suitable employment and assessing medical capacity for work. If an injured worker wants to request that their employer provide them with suitable employment, it must be accompanied by medical evidence.

Permanent impairment - stabilised
The Act now enables quicker and easier access to entitlements for workers with dust diseases or terminal illnesses.

A key principle of the Act is that a work injury must have ‘stabilised’ before a permanent impairment assessment can be undertaken to determine an injured worker's degree of whole person impairment and their subsequent entitlement to lump sum compensation and/or other benefits.

Recognising that terminal illnesses often do not ‘stabilise’, the Act now includes a clear and concise definition of the term as well as exceptions to this requirement for injured workers with terminal illnesses. These amendments define that a terminal condition is a work injury that is incurable and will, in the opinion of a medical practitioner, cause death. The determination of this criteria is a matter for the medical practitioner.

The ‘stabilised injury’ exception extends to work injuries that are of a progressive nature and may not stabilise within the legal definition – for example, some dust diseases. Regulations need to be made to set out these conditions.

Medical appointments
Another change is that the injured worker’s employer and ReturnToWorkSA (including its claims agents, Employers Mutual and Gallagher Bassett) are not allowed to be present while an injured worker is examined, treated or tested by their health practitioner or where they are undergoing diagnostic examinations or tests required for treatment purposes.

If the injured worker wants their employer or claims agent to be present during such appointments, they will be able to provide written consent using the ReturnToWorkSA form.

The worker’s employer, ReturnToWorkSA (including its agents) can still be present during a consultation involving the worker and a health practitioner to discuss their recovery and return to work. This safeguard ensures that services aimed at facilitating a worker’s reintegration into the workplace can continue uninterrupted.

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Frequently Asked Questions

Why were these changes needed? As previously written, the Act contained some ambiguity around the process for achieving outcomes for injured workers returning to work, particularly in the areas of employer obligations. It also potentially disadvantaged workers with dust-related diseases and terminal illnesses, particularly in the determination of income support and access to permanent impairment assessments. The changes made to the Act will foster a more supportive and fairer environment for injured workers and more clarity for employers in these important areas.

Who was consulted in framing the legislation? The legislation was the result of significant consultation by the Government of South Australia with unions, the legal profession, peak business organisations and self-insured bodies.

When will the changes come into effect? Changes are expected to come into effect on 1 December 2024.

Will ReturnToWorkSA start immediately sanctioning those who aren’t compliant? While ReturnToWorkSA will continue its compliance activities, any response will consider the nature and seriousness of the issue, the recency of the legislative change, and the particulars of the matter.

Will there be more changes to the Act? One of the functions of ReturnToWorkSA is to continually keep the legislation under review and to suggest improvements when we believe they’re required. Whether there is a full-scale review of the Act in the future is a matter for government.

Will the changes have an impact on premiums? No. The ReturnToWorkSA Board recently announced that the average premium rate will remain steady at 1.85% for the 2024-25 period, and the changes made to the Act are not likely to have any effect on future premiums.

What is the role of the Tribunal in enforcing suitable employment? The Tribunal can make orders to ensure compliance, including compelling an employer to provide suitable employment, but ReturnToWorkSA aims to avoid adversarial outcomes by fostering collaboration between the employer and worker.

How does the grouped employer provision affect suitable employment? Grouped employers must consider employment opportunities across the entire group, not just the pre-injury employer. In their regulatory activities ReturnToWorkSA may engage with the head of the grouped entity, and where this occurs will anticipate the Head of the Group will work to support the groups obligations to provide suitable employment.

Does the host employer have to hire the injured worker directly? No, a host employer cannot be required to enter an employment relationship with a worker. Host employers, as defined in the Act, are required to cooperate, with the pre-injury employer (labour hire employer) to the extent that is reasonably practicable, in the return to work of injured workers. This means cooperating, communicating and participating in discussions about suitable employment opportunities, participating in return to work planning and providing access to the workplace so that the injured worker can perform suitable employment for the labour hire employer.

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Contact us

If you require further assistance, don’t hesitate to contact us on 13 18 55 or by email at info@rtwsa.com.

Media release

You can read ReturnToWorkSA’s media release regarding the Return to Work (Employment and Progressive Injuries) Amendment Act 2024 here- external site- external site.

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