SLRCA PRESENTATION: LEGISLATIVE CHANGE – POTENTIAL IMPACT FOR REHABILITATION 4 JUNE 2015 MELBOURNE
Overview of Legislative Amendments Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015 ( Bill 2 ) • Adopts a number of the Hanks Review recommendations • Schedule 2 (Rehabilitation) – Policy intent To emphasise the vocational (rather than medical) nature of rehabilitation services and strengthen obligations on employers and employees to improve return to work outcomes. The amendments achieve this by: • combining the current 2-step process for the development of rehabilitation programs • clarifying rehabilitation responsibilities by combining the roles of ‘rehabilitation authority’ and ‘employer’ into one concept - the ‘liable employer’ • expanding the existing definition of ‘suitable employment’ to include any employment with any employer, including self-employment; and • providing relevant authorities with the discretion to perform work readiness 2 assessments.
Commencement • Most of the amendments come into effect on date of proclamation (currently anticipated to be December 2015) • This time is necessary to enable Comcare and licensees to establish systems and processes to give effect to the new rehabilitation requirements. • Some of the amendments are subject to Bill 1 and Bill 3 coming into effect (Part 2 and Part 3 of Schedule 2) • Current status of the Bill 3
Overview of presentation Who is a ‘liable employer’? 1. 2. Liable employer duties 3. Workplace Rehabilitation Plans (WRP) 4. Developing and implementing a WRP 5. What are reviewable determinations? 6. Work readiness assessments 7. Comcare Incentive Scheme 8. Workplace Rehab Provider (WRP) arrangements 9. Sanctions regime 10. Subordinate legislation development 4
Who is the Liable Employer? • For licensees, the liable employer is the employer with whom the injury occurred, or the employer whose employment contributed significantly to the disease or designated injury • The liable employer has responsibility for the rehabilitation of the employee • The rehabilitation responsibility can only be exercised with appropriate delegations • Discretion to engage a rehab provider to assist with this function 5
Liable Employer Duties • Take all reasonable steps to ensure rehabilitation of injured worker once formally notified of an injury • Injury notification can happen in different ways: • Notice of injury under s53 • Provisional medical expense request is made • Lodgement of claim for compensation • Provide suitable employment or keep the employee in employment • Consult employee and their treating doctor when performing these functions 6
Workplace Rehabilitation Plans • Change from ‘rehab programs’ to ‘workplace rehab plans’ • No longer a 2-step process - initial rehab assessment now included in workplace rehab plan services • Services to be provided under WRP all workplace-focussed • A plan should be directed at achieving one of the following: • Return to suitable employment • Maintain suitable employment • Maximise independent functioning • Employee may request a plan (in writing) & employer must decide within 7 working days 7 • Decision not to provide plan must be notified in writing
Developing a WRP • An employer is obliged to consider developing a WRP as soon as injury notification is received but may decide not to develop a plan • A decision not to develop a plan must be notified to the employee in writing • A WRP may include details of: • the services to be provided • employee and employer responsibilities • Obligations to consult with the employee, their treater and other relevant parties (e.g. the employee’s current employer) when developing the plan • An employee’s failure to participate in consultation is not 8 fatal to plan development
Implementing a WRP • Liable employer must: • provide copy of WRP to employee; and • inform them of any obligations under the plan, e.g., obligation to job-seek • Liable employer may vary or revoke plan in writing • Employee to notify if unable to carry out job-seeking • Relevant costs for implementing WRP payable by relevant authority • Transitional arrangements – current rehab program under s.37 continues (s.105) 9
What is reviewable? Formulation of a Workplace rehabilitation plan: • A decision to formulate a Plan under s36F and to the extent that provisions of the Plan are authorised by s36A or 36B) is not a ‘determination’ for review – objectives of the plan may be reviewable. • A decision to not formulate a Plan (under s36F(3)) is a ‘determination’ and subject to review 10
What is reviewable (cont) Variation or revocation of a Workplace rehabilitation plan: • If the variation is: a) authorised by s36A and s36B; or b) consented to by the employee, it is not a ‘determination’. • When would a variation not be authorised by s36A or s36B? – change to objectives or obligations of third parties • A decision to revoke a plan is a ‘determination’ 11
Suitable employment • Expansion of definition to include any employment • Still must: • consider employment for which employee is suited • have regard to factors such as age, experience, skills etc. • consider whether it is reasonable to expect the employee to change his or her place of residence 12
Work Readiness Assessments • New provision available to relevant authorities • Enables an assessment of capacity to undertake suitable employment • Comcare to make rules governing the process and content of WRAs • There are essentially three types of assessments: • Medical examination to formulate, vary, revoke plan (s.57(7)) – relevant authority • Rehabilitation services, incl. initial assessments (s.36) – liable employer 13 • Work readiness assessment (s.38B) – relevant authority
Comcare Incentive Scheme • Comcare may by legislative instrument formulate a scheme that authorises Comcare to make payments to employers as an incentive to provide suitable employment for employees who: (a) have suffered an injury; and (b) are unemployed; and (c) are seeking paid work 14
Rehabilitation providers • Change of terminology - Rehabilitation program provider is replaced with workplace rehabilitation provider • Service delivery continuum (all services under new s.36)- Assessment of need, RTW planning, Active implementation, Review & Implementation • 2015/16 Provider renewal of approval - must submit by 31 Dec (this includes in-house approved Licensees) • Revision of Approval Criteria & Operational standards- removal of prescriptive service standards relating to current s.36 & s.37. Must deliver services according to Principles of Workplace Rehabilitation - 1. Service Provision Principles 15
Sanctions regime • Introduce a new concept of ‘obligation of mutuality’ Obligations of mutuality relating to rehabilitation: • To accept an offer of suitable employment • To engage, continue in, or to seek suitable employment • To fulfil responsibilities under a WRP • To undergo a work readiness assessment • To undergo a medical exam arranged by a relevant authority • Unreasonable failure to comply could lead to sanctions 16
Sanctions regime • Two types of breaches of obligations (remediable/non- remediable) • Three-stage sanctions regime, depending on the combination and number of remediable and non-remediable breaches: • Remediable: 1. Suspension of all rights, except medical expenses 2. Suspension of all rights 3. Cancellation of all rights • Non- remediable: application of ‘ability to earn’ • New sanctions regime applies to breach of an obligation 17 after commencement
Some matters for discussion • Content of liable employer rules (s.41E) • A principles-based approach? • Who can deliver WRP services under a rehab plan? • What other WRP services not currently included should be prescribed by the regulations? • Potential for over assessing employer (s.36, s.38B, s.57) • When can a WRP be closed? 18
Subordinate legislation to be developed • Liable Employer rules: • Former s 41 Guidelines • Comcare may make rules to be complied with by liable employers in relation to rehabilitation • Work readiness assessment rules - new • Work readiness assessment reports - new • Comcare incentive scheme rules - new • WRP Legislative Instruments • No change to current arrangements 19 • Change in terminology only
Consultation Model • There are 14 pieces of subordinate legislation that need to be developed in Bill 2. Five of these are rehabilitation related. • Planned consultative model – 14 working groups made up of Comcare, Licensees, Commonwealth agencies and unions • Two step process: • Research best practice and develop options • Assist in drafting the subordinate legislation • Broader consultation will also be undertaken at each stage • Legal team at Comcare involved to ensure alignment with Policy intent and Legislative Instruments Act 2003 and associated Regulations and Guideline • Endorsement at each stage by senior executives at Comcare and 20 the Department
Questions? 21
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