Comments on the draft Code of Conduct v.12

Page / Item / Current draft / Proposed / Comment / Change to draft
5 / Preamble B(4)(a) / the best interests of the Compensation Fund / Add (not applicable to renewals). / See s.129(11) – is correctly noted in clause 2.3.10(a) and this needs to be consistent / Included
11 / 1.12(a)(iii) / …section 56… / …section 58… / Incorrect section reference / Included
12 / 1.14 / Duty to provide work etc / Alter the context of clause1.14 to make any response by the Corporation contingent on a self-insurer being held by the SAET to have contravened s.18. / See end notes / ‘Breach’ replaced with ‘contravention or failure to comply’ – still overstates RTWSA’s authority
15 / 1.18 / The Corporation may impose other conditions on a self-insured's registration, as it considers reasonable and appropriate, during the course of the registration period. Such conditions need not be imposed at the time of registration. The Corporation may also vary a condition so imposed. The Corporation will, within 30 days, of its decision to impose or vary a condition on a self-insured's registration, notify the self-insured, in writing, of the decision, the reasons for decision and the period for which the condition is imposed. / The Corporation may impose other conditions relating to the self-insured’s record of compliance with this Code or a legislative obligation on a self-insured's registration as it considers reasonable and appropriate, during the course of the registration period. Such conditions need not be imposed at the time of registration. The Corporation may also vary a condition so imposed. The Corporation will, within 30 days, of its decision to impose or vary a condition on a self-insured's registration, notify the self-insured, in writing, of the decision, the reasons for decision and the period for which the condition is imposed. / Without the change, the power is too broad and could be used to impose new or increased obligations on a self-insurer. Such broad powers exist in other schemes and frequently lead to major problems when used by a regulator to significantly alter terms and conditions of self-insurance. / Included
16 / 2.3.1 / Ordinarily the number of employees required for an application for an initial grant of registration as a self-insured employer or a renewal of self-insured employer registration will be 200 or more full time equivalent employees. / Either:
  1. Delete the reference to 200; or
  2. Add (Note that this requirement is not on its own a bar to registration as a self-insurer if all other requirements are met)
/ RTWSA is aware of the SISA position on this matter – Parliament saw fit to remove the 200 worker requirement from the legislation. Employee number is now one of a range of factors to be taken into account and cannot legally be used on its own to reject an application. / Option 2 included
17 / 2.3.4 / Incidence and severity of injuries / Delete and replace with true measures of WHS and RTW performance / These are problematic measures that can produce perverse results due to:
  • Volatility
  • Frequency being more a measure of luck than skill – says nothing about the health of WHS systems
We further note that the reference to 3 years of data has been removed. What is the reason for this? / No change
20 / 2.3.10(b) / When assessing the effect of an application for self-insured employer registration on the Compensation Fund, ReturnToWorkSA will have regard to all relevant circumstances including the projected effect on the employer's industry premium rate of granting self-insured employer registration to the particular applicant. / Delete the reference to the effect on the industry rate. / The effect on the industry rate is not an effect on the Compensation Fund. The Fund is always re-balancing industry rates to maintain a set average rate. Changes to industry rates affect other premium payers, not the Fund. / Included & paragraph shortened
23 / 3.7 / Add new clause (c) / (c) ReturnToWorkSA acknowledges that it is obliged to determine applications for self-insurance as expeditiously as is reasonably possible once the required criteria have been met by the applicant / Ensures that all parties know that determination of applications where the required criteria have been met by the applicant cannot legally be delayed without good reason / Included
25 / 4.3.2(c) / A self-insured employer is required to cooperate and participate with any enquiry or monitoring activity undertaken by ReturnToWorkSA. / A self-insured employer is required to cooperate and participate with any enquiry or monitoring activity pertaining to the self-insured employer’s compliance with relevant legislation and/or this Code undertaken by ReturnToWorkSAunder terms agreed with the self-insured employer. / This is very broad as it stands and thus contains potential for conflict. RTWSA’s powers are not unlimited. / Included
Annexures / Deleted / Retain WHS and IM standards as annexures / Maintains the role of the Code as the document that allows potential applicants to understand what is involved in SI / No change

Notes

SISA once again raises its long-standing concerns about RTWSA’s policy settings under s.18. The RTW Act has handed the power to find that a self-insurer has not complied with s.18 or 20 to the SAET. The word ‘breach’ is not appropriate. It does not appear in the Act in connection with these provisions.Where a s.18(4) action is brought by a worker, the task of the SAET is to test whether it is reasonably practicable for the employer to offer suitable work. This is a subjective test in which reasonable minds can come to different conclusions on the same set of facts. Should the SAET conclude that it is reasonably practicable for the employer to offer suitable work, it does not mean that the SI has acted unreasonably or that an offence has been committed within the meaning of s.198 – it only means that the SAET thinks differently about the set of facts it has reviewed.

To find that an offence has been committed, a prosecution must be brought under s.198, a conviction registered and a penalty imposed.

Should the Corporation purport to find a ‘breach’ and impose a condition on, or alter a grant of SI, it would be acting in excess of its powers unless the SI is found guilty of an offence by the SAET. An adverse finding under s.18(4), given the subjectivity of such a finding, would be insufficient grounds unless the SAET is of the view that the conduct of the SI is genuinely egregious. Investigations under s.15(2) are in this sense pointless, since RTWSA has no scope to act on its findings without the backing of a conviction under s.198.

If clauses 1.14(g) or (h) were ever to be unilaterally invoked, it would be SISA’s advice that the self-insurer take the matter to litigation.