Return to work obligations

09 April 2018

Managing the relationship with your WorkCover Agent and the Return to Work Inspector.

Whether you operate in an office or a warehouse, workplace injuries can happen to any business!

If an accident happens, as an employer, you must understand the obligation for returning an injured employee to work, in circumstances, where a WorkCover claim has been accepted. The Victorian WorkCover Authority (VCA) has a central role in overseeing this process.

The VCA is a Victorian statutory body which trades under WorkSafe Victoria. The VCA has two key functions:

  • administer the State workers compensation scheme (WorkCover) in accordance with the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRCA)
  • initiate prosecutions under the Occupational Health and Safety Act 2004

The VCA requires almost all employers in Victoria to have a current WorkCover insurance policy. This function is managed by agents appointed to a panel, which currently comprises of five private insurance companies. Only these companies can offer a WorkCover insurance policy.

The Agents act in the interests of the VCA, not the employer’s interests in upholding the VCA’s policy objectives set out in WIRCA.

Enforcement of the Return to Work Obligation

An important policy objective of the VCA set out in the WIRCA is to bring about as soon as possible the return to work of an injured employee whose WorkCover claim has been accepted.

The VCA has established a Return to Work Inspectorate to enforce employer obligations which are set out in Division 2, Part 4 WIRCA. These obligations, together with an employee’s obligations, are set out below in an excerpt taken directly from WIRCA.

An inspector has various powers, for example, to enter an employer’s premises, take documents and ask questions. If an inspector has a reasonable belief that an employer has contravened its return to work obligations, an inspector may issue a return to work notice. The notice can set out conditions and directions on how an employer can comply.

An employer may seek an internal review by the VCA, or an external review by VCAT of a return to work notice.

Prevention is better than prosecution

The VCA does prosecute, for example, in May 2017 a financial services company was fined $3,000.00 plus costs of $2,716, with a conviction recorded, by Melbourne Magistrates Court for failing to provide suitable employment to an injured worker.

At its most draconian, the VCA can launch criminal proceedings against a company officer personally for failing to comply with return to work obligations (s601 WIRCA): … if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate’

This provision appears to have never been used. However, understanding the trigger point as to when and how the involvement of the Return to Work Inspectorate occurs is what is really important. This takes us back to the insurance companies in their role as Agents of the VCA.

The VCA has issued a Claims Manual which sets out its expectations as to how Agents manage WorkCover claims generally. The Claims Manual is not the law, but it is the VCA’s view of what the best policy is to comply with WIRCA. The Claims Manual is what a Claims Officer in any one of the five insurance companies must abide by as a condition of their appointment as an Agent to the WorkCover panel.

Section 5.2 of the Claims Manual covers an employer’s return to work obligations. The first step is to have the employer and worker work out any difference without any external intervention with reference to the Return to Work Compliance Code (July 2014) published by WorkSafe.

Section 5.3 of the Claims Manual deals with an employer’s non-compliance:

‘Agents support employers to meet their obligations and have a responsibility to refer non-compliant employers to WorkSafe’s RTW Inspectorate via email for review.

If an Agent considers that an employer is not complying with their obligation to provide employment, plan return to work or consult about a worker’s return to work, they refer it to WorkSafe for review.’

The most important factor in persuading an Agent from referring a concern to the RTW Inspectorate is prompt and clear communication by the employer, if a business on the face of it is not complying with its return to work program obligations.

If you have any questions about your business’ return to work obligations under your WorkCover policy, please contact a member of our Workplace Relations team.

Disclaimer: This publication contains comments of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Rigby Cooke Lawyers or the authors for loss occasioned to any person doing anything as a result of any material in this publication.

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