Combining Whole Person Impairments – Return to Work Act (SA)

The Full Court of the Supreme Court of South Australia delivered its Judgment in the matter of Return to Work Corporation of South Australia v Preedy [2018] SASCFC 55 on 15 June 2018.
The Judgment is attached

Our Analysis of the Judgment is attached.

June 2018

The Fair Work Commission has approved an increase to all minimum wage base rates as and from the first full pay period starting on or after 1 July.  The increase will see the national minimum wage change to $719.20 per week or $18.93 per hour.

Model Domestic Violence Clause

On 26 March 2018 the Full Bench of the FWC ruled on a provisional basis that a model domestic violence clause should be inserted into Modern Awards via s119 of the Act.  The effect of this ruling is that employees affected by family and domestic violence will be entitled to take unpaid leave in response to the same without affecting their employment.  The clause is in the process of being drafted and the matter has been adjourned until 1 May 2018.  Further updates will be provided in due course.

Australia's First Landmark Conviction for Reckless Conduct under Model WHS Laws

On 26 February 2018 Australia's first landmark conviction for reckless conduct under Model WHS laws was published.  The company was convicted for failing to follow its own safety management plans which resulted in a workplace fatality.  The company was fined $900,000 for reckless conduct.  For more information see Stephen James Orr v Cudal Lime Products Pty Ltd; Stephen James Orr v Simon Shannon [2018] NSWDC 27 (26 February 2018).

Notifiable Data Breaches Scheme

From 22 February 2018 amendments to the Privacy Act 1988 (Cth) require certain organisations and agencies to notify individuals affected by a data breach that is likely to result in serious harm to any individuals whose personal information is involved in the breach.  Notification to the Office of the Australian Information Commissioner is also required.  For more information see here.

Labour Hire Providers

From 1 September 2018 all labour hire providers must be licensed.  Online applications for a licence can be made from 1 March 2018.  Trading without a licence will constitute an offence.  It is also an offence to use an unlicensed provider.  For further information see here.

Amendments to the RTW Act Regulations with respect to Costs for s18 Applications

On 6 February 2018 the government Gazetted amendments to the RTW Act Regulations with respect to costs for s18 applications.  In short, the changes make it clear that a worker who brings a s18 application is entitled to claim counsel fees as a disbursement and the capped amount of $2,464 (indexed) up to a pre hearing conference and thereafter 85% of the Supreme Court Scale.  This is a significant change to the previous position.  This change will have a significant impact on employers who are involved in s18 applications as they will be responsible for paying legal costs to the worker.  The worker will be entitled to costs, unless the Tribunal orders the application was frivolous or vexatious.  For further information contact us.

Review of the Operation of the Return to Work Act

On 14 November 2017 Minister Rau announced that the mandated review of the operation of the Return to Work Act will commence on 4 December 2017.  The review will be conducted by The Honourable Justice Mansfield AM, a retired Federal Court Justice.  The review is required to be completed by June 2018.

Completion of the Review of the Operation of the Return to Work Act

The second review of the WHS Act is complete and was tabled in Parliament on 30 November 2017.  The Review found that the Act is operating effectively and that the variations in the South Australian Act have not negatively impacted on its operation.  As such legislative changes were not recommended.

The Report of the Review can be found here.

News&Views - To Combine or not to Combine - WPI Assessments

On 21 July 2017, the Full Bench of the SAET handed down its landmark decision allowing the appeal in the matter of Preedy.  The Full Bench was asked to determine whether two separate impairment assessments should be combined.  The Full Bench construed the meaning of both sections 22 and 58 as follows: 
For the purposes of making the assessment under s22, multiple impairments from the same injury or cause are to be assessed together or combined, but in connection with an assessment of non-economic loss under s58, they are only combined if they arise from the same trauma.
To read the full article click here

Fair Work Commission Casual-Conversion Clause

On 5 July 2017 the Fair Work Commission announced that it will introduce a casual-conversion clause into modern awards.  This clause will allow casual workers to convert to part-time or full-time employment.  The FWC has developed a draft conversion clause which can be utilised if criteria are met.  The conversion can be refused by employers in certain circumstances.  Further submissions on the topics will be heard before the decision is finalised.  When the final decision is published we will provide a further update.

Full Bench Decision

On 4 July 2017 in a landmark decision the Full Bench of the Fair Work Commission indicated its preliminary view that all employees should have access to unpaid family and domestic violence leave and that they should be able to access personal leave for the purpose of taking family and domestic violence leave.  The Full Bench declined, to rule that there should be 10 days of paid domestic violence leave as claimed by the Australian Council of Trade Unions.  The Commission indicated it would provide opportunities for submissions before issuing its final decision.

South Australian Employment Tribunal Expansion

From 1 July 2017 the South Australian Employment Tribunal had its jurisdiction expanded to include SA employment and industrial disputes, regulation of SA industrial awards, agreements and registers, hear SA WHS related prosecutions and resolve SA equal opportunity and dust disease matters.  See:

Increase to High Income Threshold

With effect from 1 July 2017, the high income threshold for unfair dismissal claims increased to $142,000.

Increase to National Minimum Wage

From 1 July 2017 the National Minimum Wage will increase by 3.3% to $18.29 per hour.  The FWC statement can be found here.

New Appointments

Anthony Barbaro – Special Counsel

Anthony joined us on 31 January 2017 as Special Counsel. Anthony will work across all practice areas.  We are very excited to have him on board and look forward to introducing you all to him in the future.

Penalty Rates Reduced

The Fair Work Commission reduced Sunday and public holiday penalty rates in retail, hospitality, fast food and pharmacy sectors in its decision handed down on 23 February 2017.  The Decision can be located here

SafeWork SA has announced statutory review of WHS Act

It is seeking feedback on the operation of the WHS Act.  A discussion paper has been published to provide guidance to those who wish to give feedback. Submissions are open until 5pm on 30 November 2016.  Anyone who would like a copy of the Discussion Paper or who requires assistance to provide feedback is invited to contact us.  The relevant media release can be located here:

Increase to High Income Threshold

On 1 July 2016 the high income threshold applicable to unfair dismissal claims increases to $138,900

Adult minimum wage rises from 1 July 2016

The Fair Work Commission has increased the national minimum wage to $672.70 per week or $17.70 per hour.  The change will take effect from 1 July 2015. – View

Training Arrangement wages increase from 1 July 2016

The Minimum wage for juniors and employees under Training Agreements as well as employees with a disability will increase by 2.4 percent from 1 July 2015. – View

Penalty rates case

On 15 January 2016 the FWC President, Justice Ross, released a statement inviting interested parties to make submissions in relation to the Penalty rates case. View Statement and Penalty rate case.

Labour Hire Companies put on notice

On 12 January 2016, RTWSA put labour hire companies and host employers on notice that it is cracking down on fradulent behaviour.  It estimates such behaviour is costing the scheme anywhere between $25 million and $50 million per year - View

Proposed amendments to the Fair Work Act (Cth)

On 3 December 2015 the Federal government introduced a Bill proposing amendments to the Fair Work Act (Cth). The Fair Work Amendment (Remaining 2014 Measures) Bill 2015, addresses the six remaining measures which failed to pass the Senate in last round of amendments. The proposed measures are unchanged from that previously introduced.  The progress of the Bill and its content can be viewed here -  View

First Anti-Bullying Order Issued

On 30 July 2015 the Fair Work Commission issued its first anti-bullying order. The parties to the proceedings have not been identified. The parties were ordered not to make contact with each other and the company was ordered to provide anti-bullying training and an updated policy and complaints procedures by no later than 1 September 2015 - View

Annual Leave Payment on Termination

On 27 February 2015 the Federal Court of Australia held that payment of outstanding annual leave to terminated employees must be paid at the same rate it would have been paid had the employee actually taken the leave i.e. inclusive of annual leave loading - View

Fair Work (Miscellaneous) Amendment Bill

On 12 February 2015 the government reintroduced the Fair Work (Miscellaneous) Amendment Bill into Parliament.  The purpose of the Bill is to amend the SA legislation to abolish the statutory office of the Employee Ombudsman and to make changes to the constitution of the Full Commission of the Industrial Relations Commission - View

Greens Push for Industrial Manslaughter Penalties in SA

The South Australian Greens party will introduce a Bill to Parliament in May 2015 to amend the current Work Health and Safety Act 2012 (SA) to introduce penalties for industrial manslaughter. If successful, the maximum penalty for an individual will be 20 years imprisonment, or in the case of a corporation, $1,000,000. An employer is guilty of an offence where the death of a person occurs in circumstances where the PCBU knew or ought reasonably to have known, or was recklessly indifferent as to whether a breach of their obligation under the WHS Act would create a substantial risk of serious harm.  Officers of an employer will also be culpable in certain circumstances. - View


Increase to High Income Threshold

On 1 July 2015 the high income threshold for unfair dismissal claims for employees who are not covered by a modern award or enterprise agreement increased to $136,700.  Accordingly the maximum amount the Fair Work Commission can order in an unfair dismissal matter is $68,350.

Work Health and Safety (Prosecutions Under Repealed Act) Amendment Bill

On 12 February 2015 the government introduced into the Parliament the Work Health and Safety (Prosecutions Under Repealed Act) Amendment Bill.   The purpose of the Bill is to provide for the Minister to extent the time limit to allow proceedings to be brought under the OHS&W (SA) legislation outside of the previously stated statutory time limit - View


Workers' Compensation - Return to Work Bill

The Return to Work Bill 2014 is in the Legislative Council having rapidly passed the House of Assembly. In the House of Assembly, the Bill was amended to correct minor errors and clarify certain sections.  The Legislative Council debate is likely to resume in the week commencing 28 October 2014, with another smooth passage expected.  

The Bill has major differences to the current scheme, including a 2 year cap on weekly payments and a cap on medical benefits for all but the most seriously injured workers. The caps will apply to existing claims.  When the Bill takes effect on 1 July 2015, it is expected that the average premium rate will drop from 2.75% to 2%. Over time it is expected to reduce further.

Major reforms for WorkCover (SA) 

Business groups, minor parties and the Liberal Opposition have cautiously welcomed what the State Government is calling “the most significant reform of workers’ compensation in more than 25 years.” 

The Return to Work Bill was tabled in Parliament on 6 August 2014 following extensive consultation. It seeks to replace the old workers compensation scheme with an entirely new Act, and the Government says it will save South Australian businesses more than $180 million per year.

The legislation will be debated when parliament returns from winter break in mid-September. The Bill can be viewed here. View

National work health and safety guidance material released

On 4 July 2014, Safe Work Australia released 9 national guidance material packages intended to support the WHS Act and Regulations. The materials include information sheets designed to assist small businesses and workers to meet their obligations under the WHS laws. View

First prosecution of an Officer under WHS harmonised laws

In the ACT, an Officer has entered a plea of not guilty to a charge of failing to conduct due diligence under the Work Health & Safety Act 2011 (ACT). The officer has been charged with a category 2 offence which carries a maximum penalty of $300,000.  The PCB or U has also been charged with a category 2 offence.  The charges were laid following the death of a truck driver who died as a result of electric shock injuries at work.  The officer was not a director of the PCB or U, Kenoss Contractors but rather a director of a related entity.  Accordingly, the question to be determined at trial is whether the director is an Officer of the PCB or U.

Fair Work Amendment

The federal government today (27/2/14) introduced leglisation to amend the Fair Work Act 2009 (Cth) - View

FWC landmark decision on penalty rates

On 14 May 2014, the Full Bench of the FWC handed down a decision which unanimously held that Sunday penalty rates prescribed by the Restaurant Industry Award are excessive and ordered that from 1 July there will be a reduction in pay rates for casual level 1 & Level 2 staff that work on Sundays. These changes will equalise Sunday penalty rates with the Saturday penalty rates for this category of employees - View

Gender Equality Reporting Requirements

On 25 February 2015, the Federal Government removed some of the broader reporting requirements that were due to commence on 1 April 2015 (2015-16 reporting period).  Employers who are required to report will no longer have to report on remuneration for CEOs and casual employees, components of total remuneration, requests for extended parental leave and the number of job applications and interviews undertaken. However, as of 1 April 2015 employers will be required to report on appointments, promotions and resignations and the proportion of employees that ceased employment following parental leave in their annual reports.  -  View

Relevant employers must show in their 2015 reporting that by 1 October 2014 they had in place policies or strategies to achieve gender equality in their workplace. Bradbrook Lawyers can assist employers to establish a Gender Equality Policy specific to their workplace - View

The Workplace Gender Equality Act 2012 requires non-public sector employers with 100 or more employees and registered higher education providers to lodge a report for the reporting period ending 21 March 2014. The reports must be lodged by 31 May 2014 - View

Heavy Vehicle Laws

National Heavy Vehicle law became operational today (10/2/14) - View

National Minimum Wage

On 4 June 2014, the Fair Work Commission Minimum Wage Panel awarded a 3% increase to the national minimum wage.  With effect from 1 July 2014 the national minimum wage for a full time employee will be $640.90 per week, or $16.87 per hour.  View

The Fair Work Commission has announced a 2.5% increase to minimum wages for employees whose pay rates are set by reference to the national minimum wage, a modern award or certain registered agreements.  The new minimum wage as and from 1 July 2015 will be $656.90 per week or $17.29 per hour.  -  View

Privacy Laws

Amendments to the Privacy Act 1988 (Cth) come into effect on 12 March 2014 - View 

SA Election Results

Labor will hold 23 seats and the Liberals 22 in the new parliament with Independants Such and Brock holding the balance of power (23/3/14)

South Australian Employment Tribunal

The South Australian Employment Tribunal (SAET) replaced the SA Workers Compensation Tribunal on 1 July 2015.  
This change coincides with the commencement of the Return to Work Act 2014 (SA).  Information about the SAET can be found here.

Stop Bullying Orders

Pre-2014 allegations can be considered by the Fair Work Commission when determining whether to issue a stop bullying order (6/3/14) - View

The Fair Work (Amendment) Act 2013 (Cth) changes apply from today (1/1/14).  The changes include; new anti-bullying measures; consulation requirements to changes to rosters and hours of work; protection of penalty rates; right of entry rules - View

On 17 December 2013 the Fair Work Commission launched its dedicated "anti-bullying webpage".  This new jurisdiction starts on 1 January 2014 - View

The Fair Work Act 2009 (Cth) was amended to enable an employee who is bullied at work to apply to the Fair Work Commission for an order to stop the bullying. The amendment will take effect from 1 January 2014 - View

SafeWork Australia has released for public comment a draft Code for Preventing and Responding to Workplace Bullying  - View 

The Full Bench of the Fair Work Commission has held that a worker must be 'performing work' when being bullied in order for it to have jurisdiction to hear an Application - View

Support Persons

On 19 February 2014, the Fair Work Commission clarified the role of a support person - View

Unfair Dismissal and General Protections

From 1 January 2013 the time limit for the lodgement of Unfair Dismissal Applications and General Protections
Dismissal Applications will be 21 days - View

With effect from 1 July 2014, the new high income threshold for unfair dismissal claimants increased to $133,000.

WorkCover SA

The Return to Work Bill and the Employment Tribunal Bill passed through the South Australian Parliament on 30 October 2014 and will replace the Workers Rehabilitation and Compensation Act 1986 on 1 July 2015.

Proposed changes to WRC Act 1986 (SA) (31/3/14) - View
WorkCoverSA today (28/3/14) announced a $96 million improvement in the WorkCover Scheme's financial position in releasing results for the six months to 31 December 2013 - View

Work Health and Safety

The first judgment to examine the meaning of ‘due diligence’ under WHS laws was handed down in June 2015.  In this case the prosecution failed to establish that the person charged had control or responsibility for the business or undertakings of the company. The performance of his job role was not determined to have elevated his position as employee to that of ‘officer’ under the WHS laws - View

On 28 November 2013 SafeWork Australia released two new Guides to assist in the management of workplace risks:

  • Guide for preventing and responding to  workplace bullying  - View
  • Guide for managing the risk of fatigue at work - View

On 13 November 2013 the government announced it will suspend three Codes of Practice relevant to the building industry - View

The Work Health & Safety (Self-Incrimination) Amendment Bill 2013( SA) passed on 28 June 2013 confirming the privilege against self-incrimination applies only to individuals and not to corporations - View

The Work, Health & Safety Act 2012 (SA) commenced on 1 January 2013 - View

Business demands delay on safety bill - View

The Work, Health and Safety Bill passed the Second Reading stage in the Upper House of South Australian Parliament on 6 September 2013. The Bill will be in Committee when Parliament resumes on 18 September 2013

InDaily – SA workplace safety changes out of control - View

Business SA backs government proposal on WHS Bill - View

Labor’s rush job on OH&S does damage - View

Shadow Minister calls for urgent WHS regulatory Impact Statement - View

PWC report on impact of model OHS laws in Victoria - View

Victorian report supports HIA position on harmonisation - View

Libs will move to defeat WHS Bill -View

Safework SA has released a series of Fact Sheets concerning the proposed Work Health and Safety laws - View

Letter to Editor – Workplace Safety Article - View

Advertiser Article – Row over workplace safety Bill - View

Libs delay Work Health & Safety Legislation - View

Safe Work Australia has announced the start of the public comment period for 15 draft model Codes of Practice which support the new model work health and safety legislation - View

Staff News

From Monday 12 August 2013 we will be operating from new premises located at Level 1, 81 - 89 Hutt Street, Adelaide. Our telephone number has changed - View our new contact details 

Mike Hammond commenced consulting to our Work Health & Safety practice on 1 June 2013. Mike is based in Melbourne.

Brooke Marett-Richards commenced as our Practice Manager on 14 October 2014.