Employment Act 1988

NORFOLK ISLAND

Employment Act 1988

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An Act to establish minimum wages and working conditions, compensation for work ‑ related accidents, safe working practices, procedures for conciliation, adjudication and review, and for related purposes

PART 1 — PRELIMINARY

Short title

1. This Act may be cited as the Employment Act 1988.

Commencement

2. (1) Subject to subsection 2(2), this Act shall come into operation on a date fixed by the Administrator by notice published in the Gazette.

(2) The Administrator may fix different dates for the commencement of different provisions of this Act.

Interpretation

4. In this Act, unless the contrary intention appears —

“approved” means approved in writing by the Employment Liaison Officer, under subsection 47E(3), for the purposes of the provision in which the term occurs.

“Chief Magistrate” means the Chief Magistrate of the Court of Petty Sessions holding office under the Court of Petty Sessions Act 1960;

“contract” means a contract of employment;

“Electronic Transactions Act” means the Electronic Transactions Act 1999 of the Commonwealth.

“eligible party” has the meaning given by subsection 82AA(4).

“employee” includes an apprentice or trainee;

“employment” means employment by an employer of an employee to whom this Act applies;

“Employment Liaison Officer” means the person appointed as the Employment Liaison Officer under section 47F.

“incapacity” has the meaning given by subsection 28(1).

“independent medical examination” has the meaning given by subsection 47A(2).

“inspector” means a person appointed to be an inspector under subsection 57(1).

“internal reviewer” has the meaning given by subsection 66(3).

“legal practitioner” means a person, by whatever name called, who is entitled to practise law in Norfolk Island;

“Magistrate” means a Magistrate holding office under the Court of Petty Sessions Act 1960 and includes the Chief Magistrate;

“member of the Tribunal” means a Magistrate;

“membership fees” for a public scheme means the fees for the scheme prescribed by rules made for the purposes of subsection 39B(5).

“permanent incapacity” has the meaning given by subsection 28(2).

“permanent incapacity assessment” has the meaning given by subsection 32(3).

“professional Magistrate” means a Magistrate who also holds office as Chief Magistrate, Acting Chief Magistrate or a Magistrate under the Magistrates Court Act 1930 of the Australian Capital Territory;

“public holiday”, in respect of an employee, means a day referred to in section 9 or a day specified in, or in accordance with, the employee’s employment contract in substitution of that day;

“registered health practitioner” has the same meaning as in the Health Practitioners Act 1983.

“registered medical practitioner” has the same meaning as in the Health Practitioners Act 1983.

“rehabilitation program”, in relation to an injury or condition, means a program involving the provision of rehabilitation services for the injury or condition.

“rehabilitation services”, in relation to an injury or condition, means services provided to a person in connection with the person’s rehabilitation from the injury or condition, including (without limitation) the following:

(a) medical, dental, psychiatric or hospital services (whether on an in‑patient or out‑patient basis);

(b) services provided in connection with physical training or exercise;

(d) occupational therapy;

(e) vocational training;

(f) assistance in finding suitable work;

(g) an approved service.

“responsible party” has the meaning given by subsection 32(2).

“rules” means rules made under section 108.

“Secretary” means the Secretary to the Tribunal;

“this Act” includes the rules, and where a provision of this Act or the rules has effect as if another provision were substituted, that other provision;

“Tribunal” means the Court of Petty Sessions, when the Court is exercising jurisdiction conferred by subsection 78(1).

Note: The jurisdiction conferred by subsection 78(1) relates to matters arising under Part 3 (compensation for work‑related accidents, etc.)

“week” means 7 days, Monday to Sunday inclusive;

“work‑related accident” means a situation or event occurring at a workplace or arising out of, or in the course of, an employee’s work that results in death or injury.

Application

5. (1) Subject to this section, this Act applies where work is carried out by an employee in Norfolk Island, whether a contract was entered into or not, and whether the contract, if any, was entered into in Norfolk Island or elsewhere.

(2) Where an employer is not ordinarily resident in Norfolk Island, an agent, officer or employee ordinarily resident in Norfolk Island of that employer is deemed, for the purposes of this Act, to be the employer where the agent, officer or employee —

(a) is ordinarily in charge of the employer’s business in Norfolk Island; or

(b) has entered into a contract on behalf of the employer in Norfolk Island.

(3) This Act applies where a contract for work to be carried out elsewhere than in Norfolk Island —

(a) is made in Norfolk Island; and

(b) the employer and employee under the contract are ordinarily resident in Norfolk Island.

(4) Where a person is employed to carry out work in Norfolk Island under a contract made in a place elsewhere than Norfolk Island and the person performs no duties under the contract on land in Norfolk Island except duties that are incidental to the performance of the principal duties of the person under the contract, this Act does not apply.

Persons to whom Act applies

6. (1) For the purposes of this Act, an employer may be a natural person, a body politic, a body corporate or unincorporate, a firm, an association, a partnership or club, the personal representative of a deceased employer or a partnership between 2 or more of them.

(1A) If, in relation to a matter, this Act refers to an entity which is not a person, the reference is taken to include a reference to a person nominated by the entity to act on behalf of the entity.

Example: This subsection applies to a reference in Part 5 (review of matters related to compensation) to an entity that is an employer mentioned in subsection (1) of this section, but is not a natural person, a body corporate or a body politic.

(2) For the purposes of this Act, where a natural person enters into a contract of service as an employee with another person, whether or not a natural person, the other person is the employer of the first‑mentioned person.

(3) For the purposes of this Act, where a natural person enters into a contract (other than a contract of service) with another person, whether or not a natural person, the first‑mentioned person is deemed to be an employee of the other person and the other person is deemed to be the employer of the first‑mentioned person where —

(a) the contract constitutes or includes an agreement to perform work or service or work and service for a consideration in money;

(b) the first‑mentioned person personally performs all or part of the work or service or work and service; and

(i) incidental to a trade or business regularly carried on by the first‑mentioned person before, or apart from, the making of the contract; or

(ii) the carrying on by the first‑mentioned person of business under a business name within the meaning of the Business Names Act 1976.

Persons to whom Act does not apply

7. (1) This Act does not apply to —

(a) members of the Police Force;

(b) officers or employees of the Commonwealth or New South Wales; or

(c) subject to subsection 7(2), persons holding office or appointments under a law of Norfolk Island, the Commonwealth or a State or Territory.

(2) Subject to subsection 8(2), this Act applies to officers or employees of the Administration or a Territory authority.

Rules may prescribe application of Act

8. (1) The rules may prescribe that —

(a) work of a particular class; or

(b) contracts between persons of a particular class,

constitute or do not constitute employment for the purposes of this Act.

(2) The rules may prescribe that this Act does not apply to the Administration or a Territory authority or a class of officers or employees of the Administration or a Territory authority, or applies to the extent specified in the rules.

Public holidays

9. Each of the following days in a year is to be observed as a public holiday:

(a) New Year’s Day—1 January and, if that day is a Saturday or Sunday, the next Monday;

(b) Australia Day—26 January, or, if that day is a Saturday or Sunday, the next Monday;

(d) Good Friday;

(e) Easter Monday;

(f) Anzac Day—25 April;

(g) Bounty Day—8 June and, if that day is a Saturday or Sunday, the next Monday;

(h) Sovereign’s Birthday—the first Monday after the second Saturday in June or, if that Monday is observed as Bounty Day under paragraph (g), the next Monday;

(i) Show Day—the second Monday in October;

(j) Thanksgiving—the last Wednesday in November;

(k) Christmas Day—25 December and, if that day is a Saturday or Sunday, 27 December;

(l) Boxing Day—26 December and, if that day is a Saturday or Sunday, 28 December.

PART 2 — EMPLOYMENT TERMS AND CONDITIONS

Division 4 — General

Employment of persons under the age of 15 years

24. (1) An employer must not employ a person under the age of 15 years —

(a) during any hours that the person is required by law to attend school; or

(b) at any time between the hours of 11.00 pm on one day and 6.00 am on the next.

Penalty: 20 penalty units.

(2) In addition, an employer must not employ a person under the age of 15 years —

(a) for more than 20 hours during a week in which the person is required by law to attend school; or

(b) for more than 40 hours during any other week.

Penalty: 20 penalty units.

(3) Subsections 24(1) and 24(2) do not apply to the employment of a person over the age of 14 as an apprentice or in a training position prescribed by the rules for the purposes of this subsection.

(4) This Act (other than subsection 24(1)) does not apply to employment of a person under the age of 15 years who belongs to a class prescribed by the rules, for the purposes of this subsection, by reference to —

(a) the type of work in which the person is employed; or

(b) the time at which the person is employed; or

(d) the person’s employer.

PART 3 — COMPENSATION FOR WORK‑RELATED ACCIDENTS, ETC

Division 1 — Interpretation

Interpretation

26. (1) In this Part, unless the contrary intention appears —

“dependant” means a family dependant or a non‑family dependant;

“disease” has the meaning given by section 28A.

“employee” means any person who works in the employer’s business in any capacity and includes the employer if working in the employer’s own business;

“family dependant”, in relation to a deceased employee, means a person who at the time of the death of the employee was a member of the family of the employee and who, at that time —

(a) was wholly or partly dependent on the earnings of the employee; or

(b) would, but for the incapacity of the employee, have been wholly or partly dependent on the earnings of the employee;

“injury” means─

(a) a disease suffered by an employee;

(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment) that is an aggravation that arose out of, or in the course of, that employment,

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

Note: reasonable administrative action is defined in subsection (1A).

“medical treatment” means any or all of the following:

(a) attendance, examination or treatment of any kind by a registered health practitioner who is registered under a National Law (within the meaning of the My Health Records Act 2012 of the Commonwealth) to practise one of the following professions (including a recognised speciality in one of the following professions):

(i) medical;

(ii) dental;

(iii) optometry;

(iv) physiotherapy;

(v) chiropractic;

(vi) osteopathy;

(vii) podiatry;

(b) an examination, test or analysis carried out at the request or direction of a person referred to in paragraph (a), including the provision of a report in respect of such an examination, test or analysis;

(c) the provision and, as necessary from time to time, the repair, adjustment or replacement of crutches, artificial members, artificial eyes or teeth, spectacles, hearing aids or other aids;

(d) the provision of skiagrams;

(e) maintenance, attendance at and treatment in a hospital;

(f) the provision by a hospital of any or all of the following:

(i) medical attendance and treatment;

(ii) nursing attendance;

(iii) medicines, medical, surgical and other curative materials, appliances or apparatus;

(iv) any other usual or necessary hospital services with respect to the treatment of the injury or disease of an employee;

(g) rehabilitation services;

(h) any other approved treatment (which may include treatment by a person practising a profession that is not listed in subparagraphs (i) to (vii) of paragraph (a)).

“non‑family dependant”, in relation to a deceased employee, means a person other than a family dependant who, at the time of the death of the employee, the employee was under a legal or moral duty to support and who, at that time —

(a) was wholly or partly dependent on the earnings of the employee; or

(b) would, but for the incapacity of the employee, have been wholly or partly dependent on the earnings of the employee;

“public scheme” means a scheme established under subsection 39A(1);

“spouse” includes a de facto partner;

“significant degree” means a degree that is substantially more than material;

(1A) For the purposes of the definition “injury” in subsection (1) and without limiting that subsection, the expression “reasonable administrative action” is taken to include the following─

(a) a reasonable appraisal of the employee’s performance;

(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c), or (d);

(f) anything reasonable done in connection with the employee’s failure to obtain a promotion reclassification, transfer or benefit or to retain a benefit, in connection with his or her employment,

and in this subsection “reasonable” means action that at the time─

(i) was lawful;

(ii) was not irrational, absurd or ridiculous;

(iii) was relative or related to the conduct or behaviour giving rise to that action;

(iv) was taken pursuant to the regulatory rules applicable to the employee; and

(v) was taken in circumstances of fairness to the employee,

and includes action done by or on behalf of an employer by a person who has a reasonable belief at the time that the thing done was reasonable (as described above) but nothing in this subsection affects the right of an employee to challenge the reasonableness of an action or for a decision to be made on appeal that an injury was not suffered as a result of reasonable administrative action.

(2) For the purposes of this Part, a person shall be taken to be a member of the family of another person if the first‑mentioned person is —

(a) a child of the other person who has not attained the age of 18 years;

(b) a child of the other person who has attained the age of 18 years but has not attained the age of 25 years and who is engaged in full‑time education or training;

(c) a child of the other person who has attained the age of 18 years and who is, by reason of mental or physical infirmity, unable to support himself or herself;

(d) a parent of the other person; or

(e) a spouse of the other person,

and not otherwise.

(3) For the purposes of subsection (2), without limiting who is a parent, and who is a child:

(a) each of the following is a person’s “child”:

(i) an adoptive child of the person;

(ii) a child of the person’s spouse who is ordinarily resident with the person in the person’s household;

(iii) the person’s child within the meaning of the Family Law Act 1975 of the Commonwealth; and

(b) a person is a “parent” of another person if the other person is the person’s child because of paragraph (a).

(6) For the purposes of this Part, a reference to an employee, where the employee has died by reason of an occurrence or condition referred to in subsection 29(1), shall be taken to be a reference to a dependant of the employee in relation to whom compensation is payable under this Part.

(7) A reference in this Part to an employee includes, after the commencement of incapacity, a reference to a former employee.

Meaning of “out of, or in the course of, employment”

27. (1) Subject to this Act, an occurrence shall, for the purposes of this Part, be deemed to have arisen out of, or in the course of, employment if the occurrence happens —

(a) while the employee on any working day is present at the place of employment;

(b) while the employee on any working day is present at a place which the employee —

(i) is directed by the employer to attend;

(ii) is required by the terms of his or her employment to attend; or

(iii) is expected to attend for the purposes of, or in connection with, the employer’s trade or business;

(d) while the employee is travelling between a place referred to in paragraph 27(b) and another place referred to in that paragraph; or

(e) while the employee is travelling to a place for the purposes of receiving medical treatment as a result of an accident that occurred immediately before the commencement of the travel at a place, or in a situation, referred to in paragraph 27(a), 27(b), 27(c), or 27(d),

and not otherwise.

(2) Subsection 27(1) does not apply to an occurrence during a substantial interruption of, or deviation from, a journey, being an interruption or deviation made for a reason unconnected with the employee’s employment or attendance at a place referred to in subsection 27(1).

(3) Subject to section 45, where an occurrence happens while an employee is —

(a) acting in contravention of a law or instruction applicable to the employee’s employment; or

(b) acting without instructions,

the occurrence shall not be taken to have happened otherwise than in the course of employment by reason only that the employee was so acting, if the employee was so acting for the purposes of, or in connection with, the employer’s lawful trade or business.

(4) For the purposes of this section, “place of employment”, where there is no fixed place of employment, includes the area, scope or ambit of the employment.

Meanings of “incapacity” and “permanent incapacity”

Meaning of “incapacity”

28. (1) For the purposes of this Act, “incapacity” means:

(a) injury by reason of a work‑related accident;

(b) the physical or mental consequences of:

(i) an injury by reason of a work‑related accident; or

(ii) a work‑related accident;

(d) hernia within the meaning of section 34;

(e) occupational disease within the meaning of section 35;

(f) a cardiovascular or cerebrovascular episode within the meaning of section 36.

Note: Under section 30, an employee is entitled to periodical compensation if the employee’s incapacity results in a total or partial loss or diminution of the employee’s capacity to earn.

Meaning of “permanent incapacity”

(2) For the purposes of this Act, an employee suffers “permanent incapacity” in relation to a loss or impairment of a bodily or mental function of the employee if the loss or impairment:

(a) is caused by incapacity (within the meaning of subsection (1)); and

(b) is permanent; and

Note: Under section 31, an employee is entitled to lump sum compensation if the employee suffers permanent incapacity, whether or not the incapacity results in a loss or diminution of the employee’s capacity to earn.

Meaning of “disease”

28A. (1) For the purposes of this Part, “disease” means an ailment suffered by an employee, or an aggravation of such an ailment, to which the employee’s employment made a significant contribution.

(2) In determining whether an employee’s employment made a significant contribution to an ailment suffered by the employee, or to an aggravation of such an ailment, the matters that may be taken into account include (but are not limited to) the following:

(a) the duration of the employment;

(b) the nature of the employment, and the particular tasks involved in the employment;

(d) any activities of the employee not related to the employment;

(e) any other matters affecting the employee’s health.

Division 2 — Compensation: work‑related accidents etc.

Compensation for death

29. (1) Where the death of an employee results from —

(a) injury by reason of a work‑related accident;

(b) hernia within the meaning of section 34;

(d) a cardiovascular or cerebrovascular episode within the meaning of section 36,

a dependant of the employee is entitled to compensation in accordance with this section.

(2) Where the employee leaves a family or non‑family dependant wholly dependent on the earnings of the employee at the time of the employee’s death, the employer shall pay to the dependant —

(a) an amount equal to the amount prescribed by the rules for the purposes of paragraph 32B(2)(b); and

(b) periodical compensation at 80% of the rate that would have been applicable had the employee been entitled to periodical compensation for total incapacity under subsection 30(4).

(3) Where the employee leaves a family dependant partly dependent on the earnings of the employee at the time of the employee’s death, the employer shall pay to the dependant —

(a) the amount referred to in paragraph 29(2)(a); and

(b) a proportion of compensation payable under paragraph 29(2)(b) equal to the proportion by which the dependant was dependent on the earnings of the employee at that time.

(4) Where the employee leaves a non‑family dependant partly dependent on the earnings of the employee at the time of the employee’s death, the employer shall pay to the dependant —

(a) a proportion of the amount referred to in paragraph 29(2)(a); and

(b) a proportion of compensation payable under paragraph 29(2)(b),

equal to the proportion by which the dependant was dependent on the earnings of the employee at that time.

(5) Subject to subsection 30(9), periodical compensation payable under paragraph 29(2)(b), 29(3)(b) or 29(4)(b) shall be paid for a period of 2 years after the date of death of the employee.

(6) Where more than one dependant is entitled to compensation in accordance with this section, the amount of compensation payable in respect of each dependant shall be calculated according to the respective dependency of each dependant on the earnings of the employee at the time of death of the employee.

(7) Where subsection 29(6) applies, the total amount of compensation payable in respect of the death of an employee shall not exceed the amount that would have been payable under subsection 29(2) had the employee left one dependant wholly dependent on the earnings of the employee at the time of death of the employee.

Periodical compensation—loss or diminution of capacity to earn

30. (1) Where an employee suffers incapacity resulting in a loss or diminution of the employee’s capacity to earn, the employer shall pay to the employee periodical compensation in accordance with this section.

(2) A reference in this section to total incapacity, in relation to an employee, is a reference to total loss, whether temporary or permanent, of the employee’s capacity to earn by reason of the incapacity of the employee.

(3) A reference in this section to partial incapacity, in relation to an employee, is a reference to diminution, whether temporary or permanent, of the employee’s capacity to earn by reason of the incapacity of the employee.

(4) Where an employee suffers total incapacity, compensation shall be —

(a) payment as if the period of incapacity were a period of absence from duty on paid personal/carer’s leave taken under Subdivision A of Division 7 of Part 2‑2 of the Fair Work Act 2009 of the Commonwealth —

(i) in respect of the 5 working days next following the commencement of the incapacity; or

(ii) where a written contract entered into in pursuance of section 10 before 1 July 2016 and having effect for the purposes of the Fair Work Act 2009 of the Commonwealth (as that Act applies in relation to Norfolk Island with modifications made by rules under section 32A of that Act), or a modern award or enterprise agreement applying to the employee under that Act, provides for a longer period ‑ in respect of that period; and

(b) after the expiration of the period referred to in paragraph 30(4)(a), fortnightly payments of an amount equal to —

(i) the amount prescribed by the rules for the purposes of this subparagraph; or

(ii) the amount the employee would have received had the employee not been suffering incapacity, where that amount is less than the amount prescribed for the purposes of subparagraph (i).

(5) Subject to subsection 30(8), compensation under subsection 30(4) is payable until the employee ceases to suffer total incapacity.

(6) Where an employee suffers partial incapacity, compensation shall be paid at a rate calculated in accordance with subsection 30(4) as if the employee had suffered total incapacity, less the proportion of that rate that is equal to the proportion by which the employee’s capacity to earn is not affected by the incapacity.

(7) Subject to subsection 30(8), compensation under subsection 30(6) is payable until the employee ceases to suffer partial incapacity.

(8) Compensation under this section is not payable —

(a) after the date of death of an employee; or

(b) in respect of a period after the expiration of a period or periods totalling 2 years of compensation payments under this section in relation to the same incapacity;

whichever first occurs.

(9) Paragraph 30(8)(a) does not affect the payment of compensation to a dependant of a deceased employee in accordance with section 29, but where an employee dies by reason of an occurrence or condition specified in that section and the employee received, in respect of that occurrence or condition, compensation under this section in respect of a period prior to the employee’s death, the reference in subsection 29(5) to the date of death of an employee shall be read as a reference to the date of commencement of the incapacity suffered by the employee.

(10) A reference in this section to a working day includes a reference to a public holiday.

Compensation for permanent incapacity—general

31. (1) If an employee suffers permanent incapacity in relation to a loss or impairment of a bodily or mental function, the employer must pay lump sum compensation to the employee in accordance with this section.

(2) Lump sum compensation is payable:

(a) in addition to any other compensation payable in accordance with this Part; and

(b) in an amount calculated under subsection 32B(2); and

(c) whether or not the loss or impairment of bodily or mental function results in a loss or diminution of the employee’s capacity to earn.

(3) Where an amount to which an employee would otherwise have been entitled under this section is increased by reason of the operation of this Act before the amount is paid to the employee, the employee is entitled to be paid the increased amount.

(4) Where an employee receives lump sum compensation under this section and subsequently dies by reason of the incapacity in respect of which the compensation was received, any compensation payable under paragraph 29(2)(a), 29(3)(a) or 29(4)(a) to a dependant of the employee shall be reduced by the amount so received.

Compensation for permanent incapacity—assessment

Scope of this section

32. (1) This section applies in relation to an employee if:

(a) the employee suffers a loss or impairment of a bodily or mental function; and

(b) the employee makes a claim for lump sum compensation under section 37A for permanent incapacity in relation to the loss or impairment.

(2) The “responsible party” for the claim for compensation in relation to the loss or impairment is as follows:

(a) if the claim is made against an employer, or former employer, of the employee who was, at the time of the events giving rise to, or contributing to, the loss or impairment, a member of a public scheme—the Employment Liaison Officer;

(b) if the claim is made against the Commonwealth—the Employment Liaison Officer;

Note: A claim for compensation will usually be made against an employer, or former employer, of an employee. However, the claim may be made against the Commonwealth under section 40 (if the employer is not insured or indemnified) or section 41 (if the employer ceases to exist).

(3) A “permanent incapacity assessment” of the employee is an assessment undertaken in accordance with this section by a registered medical practitioner, for the purpose of determining:

(a) whether the employee has suffered permanent loss or impairment of a bodily or mental function entitling the employee to be paid lump sum compensation for permanent incapacity under section 31; and

(b) if the employee has suffered such permanent loss or impairment—the degree of the permanent loss or impairment, expressed as a percentage.

Requirement to attend for assessment

(4) The responsible party in relation to the claim for compensation may:

(a) make reasonable arrangements for a registered medical practitioner to undertake a permanent incapacity assessment of the employee; and

(b) give reasonable written notice to the employee requiring the employee to attend for a permanent incapacity assessment in accordance with the arrangements.

Conduct of assessment

(5) A person who undertakes a permanent incapacity assessment of an employee must not assess the degree of any permanent loss or impairment of a bodily or mental function suffered by the employee until the person is satisfied that the degree of that loss or impairment has stabilised.

(6) A person who undertakes a permanent incapacity assessment of an employee:

(a) must apply the following (so far as they are applicable):

(i) the Schedule to this Act;

(ii) any approved guide; and

(b) may have regard to reports or advice obtained from a registered health practitioner of a kind referred to in paragraph (a) of the definition of “medical treatment” in subsection 26(1).

Costs of assessment

(7) The responsible party in relation to a claim for compensation must pay the costs of a permanent incapacity assessment in relation to the claim.

(8) The costs of a permanent incapacity assessment of an employee include any reasonable costs associated with travel by the employee (and if necessary, an escort or escorts for the employee) to and from the place where the assessment is to take place.

Compensation for permanent incapacity—failure to attend for assessment

32A. (1) An employee’s right to lump sum compensation under section 31 in relation to a loss or impairment of a bodily or mental function is suspended if the employee fails, without reasonable excuse, to comply with a notice to attend for a permanent incapacity assessment given to the employee under subsection 32(4) in relation to that loss or impairment.

(2) If an employee’s right to lump sum compensation in relation to a loss or impairment is suspended under subsection (1), the suspension continues until:

(a) the responsible party in relation to the claim gives the employee a new notice under subsection 32(4) setting out new arrangements for a permanent incapacity assessment in relation to the loss or impairment; and

(b) the employee complies with the new notice to attend for such an assessment.

Compensation for permanent incapacity—report of assessment and amount of compensation

Report of assessment

32B. (1) A person who undertakes a permanent incapacity assessment of an employee must, as soon as practicable after concluding the assessment:

(a) prepare a written report of the assessment, including findings as to the matters mentioned in paragraphs (a) and (b) of the definition of “permanent incapacity assessment” in subsection 32(3); and

(b) give a copy of that written report to:

(i) the employee; and

(ii) the responsible party who arranged the assessment.

Note: Paragraphs (a) and (b) of the definition of “permanent incapacity assessment” in subsection 32(3) relate to whether, and to what degree, the employee has suffered permanent incapacity.

Amount of lump sum compensation

(2) For the purposes of paragraph 31(2)(b), if the report of a permanent incapacity assessment indicates that the employee has suffered permanent incapacity with a specified percentage of permanent loss or impairment of bodily or mental function, the amount of lump sum compensation payable to the employee in relation to the loss or impairment is:

(a) if the specified percentage is 2% or less—nil; and

(b) if the specified percentage is 90% or more—an amount prescribed by the rules for the purposes of this paragraph; and

Compensation for permanent incapacity—powers of Tribunal

32C. For the purposes of an inquiry under Division 2 of Part 5 in relation to an employee’s claim for lump sum compensation under section 37A for permanent incapacity in relation to a loss or impairment of a bodily or mental function, the orders the Tribunal may make under section 85 include the following:

(a) an order requiring a responsible party under subsection 32(2) in relation to the claim to arrange for a permanent incapacity assessment in relation to the employee’s loss or impairment;

(b) an order:

(i) varying a permanent incapacity assessment in relation to the loss or impairment; or

(ii) setting aside such an assessment; or

(iii) remitting such an assessment for reconsideration.

Compensation for industrial deafness

33. (1) Deafness suffered by an employee constitutes industrial deafness for the purposes of paragraph (c) of the definition of “incapacity” in subsection 28(1) where —

(a) after the commencement of this section the employee has been employed in employment in which the employee is exposed to the hazard of contracting deafness by reason of —

(i) intensity of; and

(ii) duration of exposure to,

noise; and

(b) the employee suffers deafness of a permanent nature within 2 years after having been so exposed.

(2) A permanent incapacity assessment in relation to industrial deafness shall exclude any demonstrable pre‑existing deafness established in the course of the assessment.

(3) Compensation for deafness is not payable under this Part where it is established that —

(a) the deafness had a cause other than the cause referred to in paragraph 33(1)(a); or

(b) in the light of medical and other evidence available, the degree of deafness does not significantly exceed that which normally would have resulted from the ageing process.

(4) Incapacity by reason of industrial deafness shall be deemed to have commenced on the date that the employee reported to the employer the existence of the deafness, or the date on which the employee was last employed in employment in which the employee was exposed to the hazard of contracting deafness, whichever first occurred.

(5) Compensation in respect of industrial deafness is payable by the employer who last employed the employee in employment in which the employee was exposed to the hazard of contracting deafness.

Compensation for hernia

34. A hernia suffered by an employee constitutes a hernia for the purposes of paragraph (d) of the definition of “incapacity” in subsection 28(1) where —

(a) the hernia is —

(i) clinical hernia of a disabling character appearing to have recently occurred for the first time; or

(ii) an aggravation or strangulation of a pre‑existent hernia resulting in immediate pain and disablement;

(b) the onset of the hernia, or aggravation or strangulation of a pre‑existent hernia, was immediately preceded by a strain or accident arising out of, or in the course of, the employee’s employment.

Compensation for occupational disease

35. (1) Disease suffered by an employee constitutes occupational disease for the purposes of paragraph (e) of the definition of “incapacity” in subsection 28(1) where the disease is due to the nature of employment in which the employee is or was employed.

(2) Incapacity by reason of occupational disease shall be deemed to have commenced on the date that the employee reported to the employer the existence of the disease, or the date on which the employee was last employed in employment due to the nature of which the disease was contracted, whichever first occurred.

(3) Compensation under this Part is not payable in respect of occupational disease contracted by an employee due to the nature of the employee’s employment if, at the time of entering that employment:

(a) the employee falsely represented to the employer that the employee had not previously suffered a disease of the kind that was contracted; and

(b) the employee did so knowing that the representation was false.

(4) Compensation in respect of occupational disease is payable by the employer who last employed the employee in employment due to the nature of which the disease was contracted, whether or not a previous employment of the employee contributed towards the contracting of the disease.

Compensation for heart attack or stroke

36. (1) A cardiovascular or cerebrovascular episode constitutes an episode for the purposes of paragraph (f) of the definition of “incapacity” in subsection 28(1) where —

(a) the episode is the result of effort, strain or stress that is abnormal, excessive or unusual for the employee by whom the episode is suffered; and

(b) the effort, strain or stress arises out of, or in the course of, the employee’s employment.

(2) Compensation under this Part in respect of a cardiovascular or cerebrovascular episode is not payable where it is proved that an employee, at the time of entering employment in the course of which the employee suffered —

(a) a cardiovascular episode; or

(b) a cerebrovascular episode,

knowingly and falsely represented that the employee had not previously suffered either a cardiovascular or cerebrovascular episode.

Compensation for reasonable costs of medical treatment

Scope of this section

37. (1) This section applies to an employer if:

(a) the employer is liable under this Part to pay compensation to, or in respect of, an employee in relation to an injury or condition; or

(b) the employer would have been liable under this Part to pay compensation to, or in respect of, an employee in relation to an injury or condition, but for:

(i) the fact that the employee did not suffer a loss or diminution of the employee’s capacity to earn; or

(ii) the operation of paragraph 32B(2)(a).

Note: Under paragraph 32B(2)(a), an employer is not liable to pay lump sum compensation under section 31 in relation to an employee’s permanent incapacity if the assessed degree of loss or impairment is 2% or less.

Compensation payable by public scheme employers

(2) If the employer was a member of a public scheme at the time of the events giving rise to, or contributing to, the injury or condition, the employer is liable to pay compensation to, or in respect of, the employee for costs incurred by, or on behalf of, the employee relating to medical treatment for the injury or condition, in accordance with subsection (3).

(3) Any costs payable as compensation under subsection (2):

(a) must be reasonable; and

(b) must be approved by the Employment Liaison Officer as reasonably appropriate in the circumstances; and

(c) are to consist of the following costs of medical treatment, to the extent that the treatment is reasonable and appropriate in the circumstances:

(i) any costs of medical treatment for the injury or condition, whether carried out in Norfolk Island or in another place;

(ii) the costs of transporting the employee (and if necessary, an escort or escorts for the employee) to and from a place where medical treatment is available;

(iii) the costs of enabling the employee (and if necessary, an escort or escorts for the employee) to remain in a place where medical treatment is available for the purpose of obtaining that medical treatment;

(iv) any costs incurred on the employee’s behalf by a person or body other than the employee relating to medical treatment for the employee’s injury or condition (including costs mentioned in subparagraphs (ii) and (iii)); and

(d) must not exceed the maximum amount, if any, in relation to the medical treatment for the injury or condition, prescribed by rules made for the purposes of this paragraph.

Note: For paragraph (d), the rules may make different provision with respect to different matters or classes of matter, including for example different kinds of treatment and different injuries or conditions: see subsection 33(3A) of the Acts Interpretation Act 1901 of the Commonwealth (as applied by section 8A of the Interpretation Act 1979).

Compensation payable by other employers

(4) If the employer was not a member of a public scheme at the time of the events giving rise to, or contributing to, the injury or condition, the employer is liable to pay compensation to, or in respect of, the employee for costs relating to medical treatment for the injury or condition, in accordance with subsection (5).

(5) The costs payable as compensation under subsection (4):

(a) must be reasonable; and

(b) are to consist of any or all of the costs of medical treatment mentioned in subparagraphs (3)(c)(i) to (iv), to the extent that the treatment is reasonable and appropriate in the circumstances.

Division 3 — Compensation: payment of claims

Interpretation—references to liability to pay compensation under this Part

37AA. A reference in sections 39 to 40 to an employer’s liability to pay compensation under this Part, or to the full amount of an employer’s liability to pay compensation under this Part, does not include a reference to the employer’s liability to pay:

(a) compensation because of:

(i) subparagraph 30(4)(a)(i); or

(ii) subparagraph 30(4)(a)(ii), except to the extent that a period referred to in that subparagraph exceeds 2 weeks; or

(b) in relation to each claim for compensation under this Part made against the employer (other than compensation to which paragraph (a) of this section applies)—an amount equal to the amount (if any) prescribed by the rules for the purposes of this paragraph.

Note: Paragraph 30(4)(a) applies where an employee is suffering from total incapacity, and requires payment of compensation to the employee in relation to an initial period when the employee is absent from duty.

Claims for compensation

37A. (1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.

(2) A claim shall be made by giving the Employment Liaison Officer

(a) a written claim in the approved form; and

(b) except where the claim is for compensation for death under section 29—a certificate given by a registered medical practitioner in the approved form.

(3) Where a written claim, other than a claim for compensation for death under section 29, is given to the Employment Liaison Officer under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to the Employment Liaison Officer.

(4) Where a claim is given to the Employment Liaison Officer, the Employment Liaison Officer shall cause a copy of the claim to be given to the employer by whom the employee was employed at that time.

(5) Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.

Rehabilitation

Scope of this section

38. (1) This section applies if:

(a) an employee makes a claim for compensation under section 37A in relation to an injury or condition of the employee; and

(b) the claim is made against:

(i) an employer, or former employer, of the employee who was a member of a public scheme at the time of the events giving rise to, or contributing to, the injury or condition; or

(ii) the Commonwealth.

Requirement to undertake rehabilitation program

(2) The Employment Liaison Officer may, by notice in writing given to the employee, require the employee to undertake a rehabilitation program for the injury or condition, consisting of rehabilitation services for which compensation is, or would be, payable by the employer under subsection 37(2).

Note: Compensation is payable under subsection 37(2) for the costs of medical treatment (which includes rehabilitation services) incurred by or on behalf of an employee, subject to the conditions set out in subsection 37(3).

(3) If the employee is required under subsection (2) to undertake a rehabilitation program for the injury or condition, and the employee fails without reasonable excuse to begin, or continue with, the program, the employee’s right to compensation under this Act in relation to the injury or condition is suspended until the employee begins, or continues with, the program.

Support for rehabilitation

(4) Subsection (5) applies if:

(a) the claim for compensation is made against the employee’s current employer; and

(b) the current employer is not taking reasonable steps to:

(i) accommodate the injury or condition of the claimant to which the claim relates; and

(ii) support the claimant’s rehabilitation from that injury or condition.

(5) Any obligation of the Commonwealth under subsection 39A(2) to indemnify the current employer in relation to the claim for compensation is suspended until the current employer takes reasonable steps of the kind referred to in paragraph (4)(b) of this section.

Compulsory insurance

Requirement to have insurance

39. (1) An employer must have a policy of insurance or indemnity with an insurer for the full amount of the employer’s liability under this Part to pay compensation if:

(a) the employer is not a member of a public scheme; and

(b) the employer is not prescribed by the rules for the purposes of this paragraph.

Offence

(2) An employer commits an offence if:

(a) the employer is required under subsection (1) to have a policy of insurance or indemnity for the full amount of the employer’s liability under this Part to pay compensation; and

(b) the employer does not have such a policy.

Penalty:

(a) in the case of a natural person—imprisonment for 2 years or 50 penalty units, or both;

(b) in the case of a body corporate—250 penalty units.

(3) For the purposes of subsection (2):

(a) strict liability applies to paragraph (2)(a); and

(b) recklessness is the fault element for paragraph (2)(b).

Evidentiary certificates

(4) In proceedings against a person (the “defendant”) for an offence against subsection (2), the following certificates are prima facie evidence of the matters stated in the certificates:

(a) a certificate that is signed, or purports to be signed, by an employee or agent of an insurer stating that there was not in force, on a specified date, a policy of insurance or indemnity issued by the insurer for the full amount of the defendant’s liability under this Part to pay compensation;

(b) a certificate that is signed, or purports to be signed, by the Employment Liaison Officer stating either or both of the following:

(i) that the defendant was not, on a specified date, a member of a public scheme;

(ii) that the defendant was not, on a specified date, prescribed by the rules for the purposes of paragraph (1)(b).

Joint insurance

(5) To avoid doubt, if subsection 39(1) requires an employer to have a policy of insurance or indemnity with an insurer for the full amount of the employer’s liability under this Part to pay compensation, nothing in this Part prevents the employer from satisfying that requirement (in whole or in part) by jointly entering, with one or more other employers, into a contract of insurance or indemnity with an insurer.

Public schemes—general

Establishment

39A. (1) The Commonwealth Minister may establish a scheme to indemnify employers for their liability under this Part to pay compensation.

Employer indemnity

(2) The Commonwealth must indemnify an employer for the full amount of the employer’s liability under this Part to pay compensation, if the employer was a member of a public scheme at the time of the events giving rise to the employer’s liability.

Limitation on scope of indemnity

(3) The Commonwealth’s obligation under subsection (2) to indemnify an employer only covers the employer’s liability to pay compensation under this Part as assessed in accordance with information:

(a) given by the employer as required under subsection 39B(2) (information to be included with application to join a public scheme); or

(b) given by the employer as required under subsection 39B(10) (information relevant to the management or control of a public scheme).

Public schemes—membership

Becoming a member of a public scheme

39B. (1) An employer may apply to the Employment Liaison Officer, in writing, to become a member of a public scheme.

(2) An application under subsection (1) must:

(a) include any information that the Employment Liaison Officer requires, in writing, to be included with an application; and

(b) if there is an approved form for making an application—be made in the approved form.

(3) On receiving an application under subsection (1), the Employment Liaison officer must decide:

(a) to grant the application; or

(b) to refuse to grant the application.

(4) In deciding whether to grant an application, the Employment Liaison Officer:

(a) must have regard to any considerations prescribed by the rules for the purposes of this paragraph; and

(b) may have regard to any other matters that the Employment Liaison Officer considers relevant.

Membership fees

(5) The rules may prescribe membership fees for a public scheme.

(6) Without limiting subsection (5), rules made for the purposes of that subsection may do any of the following:

(a) prescribe different membership fees for different employers or classes of employer;

(b) prescribe different membership fees for different periods;

(i) specifying an amount as the fee; or

(ii) specifying a method for working out the fee.

(7) In working out the membership fees for an employer in accordance with rules made for the purposes of subsection (5), the Employment Liaison Officer may have regard to:

(a) any information provided by the employer to the Employment Liaison Officer (whether under subsection (10) or otherwise); and

(b) any other information available to the Employment Liaison Officer.

(8) The membership fees for a public scheme are payable on the days determined under subsection (9).

(9) The Employment Liaison Officer may, by notifiable instrument, determine days for the purposes of subsection (8).

Employment Liaison Officer may require information

(10) The Employment Liaison Officer may, by written notice, require an employer who is a member of a public scheme to do any of the following:

(a) provide specified information that is relevant to the management and control of the public scheme, including information relevant to determining membership fees for the scheme;

(b) provide that specified information:

(i) in an approved form; and

(ii) by a specified time.

Revocation of membership

(11) The Employment Liaison Officer may revoke an employer’s membership of a public scheme if:

(a) the employer does not pay the employer’s membership fees for the scheme within a reasonable period after the day when those fees are payable (as determined under subsection (9)); or

(b) the employer fails to comply with a requirement under subsection (10) to provide specified information by a specified time.

Compensation where employer not insured

40. (1) Where an employer is liable to pay compensation to an employee under this Part and the employer, in respect of the liability —

(a) is not insured in accordance with subsection 39(1) for the full amount of the employer’s liability to pay compensation; and

(b) is not indemnified under the public scheme for the full amount of the employer’s liability to pay compensation; and

the Commonwealth is liable to pay the compensation as if the Commonwealth were the employer.

(2) A sum paid by the Commonwealth to an employee in accordance with subsection 40(1) is a debt due and payable to the Commonwealth by the employer recoverable in a Court of competent jurisdiction.

(2A) Where an employer is not insured in accordance with subsection 39(1), or is not indemnified under the public scheme, for the full amount of the employer’s liability to pay compensation to an employee under this Part, any amount payable in respect of the compensation of the employee under that insurance policy or out of the public scheme, shall be paid to the Commonwealth and that amount shall be deducted from the debt due and payable to the Commonwealth under subsection 40(2).

(3) A sum recovered from an employer under subsection 40(2) is in addition to the imposition of penalties for an offence against this Act.

(4) Where an employer is a body corporate, an officer of the body corporate is personally liable to pay a debt referred to in subsection 40(2).

(5) For the purposes of subsection 40(4), “officer”, in relation to a body corporate, means a director (whether or not a shareholder) of the body corporate, or, in the case of a body corporate that has ceased to exist, a person who was a director at the time the liability arose.

Compensation where employer ceases to exist

41. (1) Where an employer is liable to pay compensation to an employee under this Part and the employer, since the happening of the occurrence from which the liability arose, has died or ceased to exist, the employee to whom the compensation is payable has recourse against —

(a) where the former employer was, or, but for the employer’s death or dissolution, would have been, insured in accordance with subsection 39(1) ‑ the insurer;

(b) where the former employer was, or, but for the employer’s death or dissolution, would have been, a member of the public scheme ‑ the Commonwealth; or

(c) where the former employer was a person prescribed by the rules for the purposes of paragraph 39(1)(b) at the time the employer died or ceased to exist ‑ a successor, executor, assign or personal representative of the former employer,

as if the insurer, the Commonwealth or the person referred to in paragraph 41(1)(c), as the case may be, were the employer.

(2) A reference in subsection 41(1) to a situation where, but for an employer’s death or dissolution, the employer would have been insured or a member of the public scheme is a reference to a situation where premiums or membership fees, as the case may be, have been paid in respect of a liability to pay compensation and nothing has occurred, other than the death or dissolution of the employer, to render the policy or membership inapplicable to the liability.

Indexation of compensation amounts

42. (1) On 1 July 2021 and each later 1 July (an “indexation day”), if the indexation factor for the indexation day is greater than 1, this Act has effect as if each compensation amount were substituted by the amount worked out using the formula:

(2) The “indexation factor” for an indexation day is the number worked out using the formula:

where:

“base quarter” means the March quarter ending 1 year before the reference quarter ends.

“index number”, for a quarter, means the All Groups Consumer Price Index number (being the weighted average of the 8 capital cities) published by the Australian Statistician for that quarter.

“March quarter” means a period of 3 months ending on 31 March.

“reference quarter” means the March quarter immediately before the indexation day.

(3) Amounts worked out under subsection (1) are to be rounded to the nearest whole dollar (rounding 50 cents upwards).

(4) The indexation factor is to be worked out:

(a) to 3 decimal places (rounding up if the fourth decimal place is 5 or more); and

(b) using only the index numbers published in terms of the most recently published index reference period for the Consumer Price Index; and

(c) disregarding index numbers published in substitution for previously published index numbers (except where the substituted numbers are published to take account of changes in the index reference period).

When substituted amount is payable

(5) If an amount is substituted under subsection (1) on an indexation day, the substituted amount is payable:

(a) in respect of periodical compensation—on and after the first payment date for the compensation occurring after the indexation day; or

(b) in respect of lump sum compensation—in respect of any payment of lump sum compensation made after the indexation day.

Publication of substituted amounts

(6) As soon as practicable after the day on which the Australian Statistician publishes the index number for a March quarter, the Employment Liaison Officer must:

(a) ascertain whether any amounts will be substituted under subsection (1) on the indexation day immediately after the end of the quarter; and

(b) if any amounts will be substituted—publish notice, by notifiable instrument, of the substituted amounts.

Compensation amount

(7) A “compensation amount” is:

(a) an amount prescribed by the rules for the purposes of subparagraph 30(4)(b)(i) or paragraph 32B(2)(b); or

(b) the amount (if any) last substituted under this section for an amount mentioned in paragraph (a).

Compensation in substitution for other claims

43. (1) Subject to subsection 43(3), where an employee —

(a) suffers incapacity; or

no proceedings for damages or compensation arising directly or indirectly out of —

(d) an injury or condition out of which the incapacity arose; or

(f) a death as a result of an occurrence or condition specified in subsection 29(1),

shall be heard or determined except in accordance with this Act, whether instituted by the employee or another person, and whether under a rule of law, enactment or law in force in Norfolk Island.

(2) Without limiting the generality of subsection 43(1) —

(a) the action for loss of services (known as the action per quod servitium amisit); and

(b) the action for loss of consortium (known as the action per quod consortium amisit), in relation to an employee,

are hereby abolished.

(3) Subsections 43(1) and 43(2) do not apply in respect of a cause of action that arose during a period not exceeding 6 years before the commencement of this Act.

(4) Compensation payable under this Act in respect of incapacity or death arising out of, or in the course of, employment is to be in substitution for damages recoverable or payable in respect of the incapacity or death whatever the cause of action or basis of liability and whether the cause of action is actionable at the suit of, or the liability is enforceable by, a person suffering incapacity or some other person.

(5) Nothing in this section affects an action for breach of a contract of insurance.

(6) In this section, a reference to damages includes a reference to aggravated, exemplary or punitive damages.

No contracting out

44. A provision in an agreement or other document, whether or not executed before the commencement of this Act, by which —

(a) a right conferred by this Part is excluded or limited; or

(b) liability imposed on an employer or other person by this Part is excluded or limited,

is of no effect.

Excluded from compensation

45. Where it is proved that —

(a) injury to, or the death of, an employee is intentionally self‑inflicted; or

(b) the incapacity of an employee is attributable to the employee’s serious and wilful misconduct (including being under the influence of intoxicating liquor or a drug); or if

(c) the incapacity, injury, illness or mental condition of an employee is attributable to work‑related stress caused by or arising out of, disaffection or disagreement arising out of or in connection with a decision or action or proposed decision or proposed action of an employer that is both lawful and reasonable in the circumstances,

compensation is not payable in respect of the injury, death or incapacity.

Powers of the Employment Liaison Officer in matters of misconduct

45A. (1) The Employment Liaison Officer may on his or her own motion or must, if requested by an employee or the employer of the employee, investigate and determine whether in his or her opinion the claim by an employee is shown on the balance of probabilities to be a claim that should be disallowed under section 45.

(2) In making a determination under subsection (1) the Employment Liaison Officer shall determine, where a matter falls within paragraph 45(c), if the decision or action or proposed decision or proposed action of the employer was lawful and reasonable in the circumstances.

(3) A determination of the Employment Liaison Officer under this section must be provided in writing together with the reasons for his or her determination, to the employee concerned, and the employer.

Overpaid amounts

46. Where an amount has been paid by way of compensation or indemnity under this Part to a person who is not entitled to payment of the amount, the amount is recoverable in a Court of competent jurisdiction from the person to whom, or on whose account, the amount was paid, or from the estate of that person, as a debt due to the person by whom the amount was paid.

Information relevant to claims

Scope of this section

47. (1) The section applies if:

(a) a claim for compensation is made under section 37A by a person (the “claimant”) in relation to an injury or condition of, or the death of, an employee (the “relevant employee”); and

(b) the relevant employee was employed by a person or entity (the “relevant employer”) at the time of the events (the “relevant events”) giving rise to, or contributing to, the relevant employee’s injury, condition or death; and

(i) the relevant employer, if the employer was, at the time of the relevant events, a member of a public scheme; or

(ii) the Commonwealth.

Employment Liaison Officer may require information

(2) If the Employment Liaison Officer reasonably believes that the claimant or the relevant employer has information relevant to the claim for compensation, the Employment Liaison Officer may, by written notice given to the claimant or the relevant employer (as the case may be), require that information to be provided to the Employment Liaison Officer:

(a) within 14 days after the day on which the notice is received; or

(b) within such longer period (if any) as the Employment Liaison Officer allows.

Failure to comply—claimant

(3) If the claimant fails, without reasonable excuse, to comply with a notice under subsection (2), any right of the claimant to compensation under this Act in relation to the injury, condition or death is suspended until the claimant complies with the notice.

Failure to comply—relevant employer

(4) If:

(a) the relevant employer was, at the time of the relevant events, a member of a public scheme; and

(b) the relevant employer fails, without reasonable excuse, to comply with a notice under subsection (2);

then any obligation of the Commonwealth under subsection 39A(2) to indemnify the relevant employer in relation to the claim is suspended until the relevant employer complies with the notice.

Independent medical examinations—requirement by Employment Liaison Officer

Scope of this section

47A. (1) This section applies if:

(a) an employee makes a claim for compensation under section 37A in relation to an injury or condition of the employee, other than a claim for compensation payable under section 31 (which deals with compensation for permanent incapacity); and

(b) the claim is made against:

(i) an employer, or former employer, of the employee who was a member of a public scheme at the time of the events giving rise to, or contributing to, the injury or condition; or

(ii) the Commonwealth.

Note 1: For medical assessments (known as “permanent incapacity assessments”) in relation to claims for compensation under section 31, see sections 32 to 32C.

Note 2: A claim for compensation will usually be made against an employer, or former employer, of an employee. However, the claim may be made against the Commonwealth under section 40 (if the employer is not insured or indemnified) or section 41 (if the employer ceases to exist).

Requirement to attend for examination

(2) The Employment Liaison Officer may:

(a) make reasonable arrangements for a registered medical practitioner to undertake a medical examination (an “independent medical examination”) of the employee in relation to the injury or condition to which this section applies; and

(b) give reasonable written notice to the employee requiring the employee to attend for the independent medical examination in accordance with the arrangements.

(3) The notice under paragraph (2)(b) must include a statement about how the employee may obtain a copy of the report of the assessment under section 47C.

Costs of examination

(4) The Employment Liaison Officer must pay the costs of an independent medical examination on behalf of the Commonwealth.

(5) The costs of an independent medical examination of an employee include any reasonable costs associated with travel by the employee (and if necessary, an escort or escorts for the employee) to and from the place where the assessment is to take place.

Frequency of examinations

(6) An employee must not be required to undergo an examination under this section at more frequent intervals than are prescribed by rules made for the purposes of this subsection.

Independent medical examinations—failure to attend examination

47B. (1) An employee’s right to compensation in relation to an injury or condition to which section 47A applies is suspended if the employee fails, without reasonable excuse, to comply with a notice to attend for an independent medical examination given to the employee under subsection 47A(2) in relation to that injury or condition.

(2) If an employee’s right to compensation in relation to an injury or condition is suspended under subsection (1), the suspension continues until:

(a) the Employment Liaison Officer gives the employee a new notice under subsection 47A(2) setting out new arrangements for an independent medical examination in relation to the injury or condition; and

(b) the employee complies with the new notice to attend for such an examination.

Independent medical examinations—report of examination

47C. (1) A person who undertakes an independent medical examination of an employee in relation to a claim for compensation under section 37A must, as soon as practicable after concluding the assessment, give a written report of the examination to the Employment Liaison Officer.

(2) An employee who undergoes an independent medical examination may request a copy of the report mentioned in subsection (1) from the Employment Liaison Officer.

(3) The Employment Liaison Officer must comply with a request under subsection (2) within 7 days after the later of the following days:

(a) the day the claim is assessed by the Employment Liaison Officer;

(b) the day the request for the report is received.

Division 4 — Employment Liaison Officer

Employment Liaison Officer

47D. There is to be an Employment Liaison Officer.

Functions and powers of Employment Liaison Officer

Management and control of public scheme

47E. (1) The Employment Liaison officer is responsible for the management and control of any public scheme established under subsection 39A(1).

(2) The responsibilities of the Employment Liaison Officer referred to in subsection (1) include (without limitation) the following:

(a) receiving, on behalf of the Commonwealth, any membership fees for a public scheme paid by employers;

(b) assessing claims for compensation made against employers who are members of a public scheme, for the purposes of determining the Commonwealth’s liabilities under the scheme;

Approvals

(3) The Employment Liaison Officer may, in writing, approve a person, policy or form, or any other thing, for the purposes of a provision of this Act.

Other functions and powers

(4) The Employment Liaison Officer has such other functions and powers as are conferred on the Employment Liaison Officer by or under this Act, including any functions and powers delegated to the Employment Liaison Officer by the Commonwealth Minister under this Act.

Directions by Commonwealth Minister

(5) The Commonwealth Minister may, by notifiable instrument, give directions to the Employment Liaison Officer in relation to the performance and exercise of the Employment Liaison Officer’s functions and powers under this Act.

(6) However, the Commonwealth Minister must not give a direction under subsection (5) that relates to a particular case.

(7) The Employment Liaison Officer must comply with any directions given under subsection (5).

Employment Liaison Officer—appointment

47F. The Commonwealth Minister may, by written instrument, appoint an SES employee, or acting SES employee, in the Department as the Employment Liaison Officer.

Employment Liaison Officer—acting appointments

47G. The Commonwealth Minister may, by written instrument, appoint an SES employee, or acting SES employee, in the Department to act as the Employment Liaison Officer:

(a) during a vacancy in the office of the Employment Liaison Officer; or

(b) during any period, or during all periods, when the Employment Liaison Officer:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

Delegations by Employment Liaison Officer

47H. (1) Subject to subsections (2) and (3), the Employment Liaison Officer may, in writing, delegate any or all of the Employment Liaison Officer’s functions or powers under this Act to any of the following:

(a) an SES employee or acting SES employee;

(b) an APS employee who holds, or performs the duties of, an Executive Level 1 position, or an equivalent or higher position;

(c) an individual who holds, or performs the duties of, an office or position in a body that is a part of the Commonwealth, or an authority of the Commonwealth, if the office or position is at a level equivalent to or higher than that of an APS employee classified at Executive Level 1;

(d) an inspector;

(e) an employee of the Norfolk Island Regional Council;

(f) any other person.

(2) The Employment Liaison Officer must not delegate a function or power to a person unless the Employment Liaison Officer is satisfied that the person has appropriate qualifications or expertise to perform the function or exercise the power.

(3) The Employment Liaison Officer must not delegate:

(a) the Employment Liaison Officer’s power of delegation under subsection (1); or

(b) a function or power delegated to the Employment Liaison Officer by the Commonwealth Minister under this Act.

(4) In performing a function or exercising a power delegated under subsection (1), a delegate must comply with any written directions of the Employment Liaison Officer.

PART 4 — SAFE WORKING PRACTICES

Interpretation

48. (1) In this Part, unless the contrary intention appears —

“bullying” means repeated unreasonable behaviour directed towards an employee or group of employees that creates a risk to health and safety and may include or involve─

(i) publicly humiliating someone, verbal abuse or spreading malicious rumours or gossip;

(ii) physical bullying such as the use of physical actions to bully, such as hitting, poking, tripping or pushing or repeatedly and intentionally damaging someone’s belongings;

(iii) the use of negative words, repeatedly and intentionally to upset someone, such as name calling, insults, homophobic or racists remarks, and verbal abuse;

(iv) social bullying such as lying, spreading rumours, playing nasty jokes, mimicking a person or deliberately excluding a person;

(v) psychological bullying where someone (or a group of people) repeatedly and intentionally use words or actions which cause psychological harm and includes intimidating a person manipulating people and stalking a person;

(vi) cyberbullying where someone (or a group of people) uses technology to verbally, socially or psychologically bully a person and may take place in chat rooms, through social networking sites, emails or mobile phones.

“occupier”, in relation to a place of work, means a person who has the control or management of the place of work;

“out of, or in the course of, employment”, in relation to an occurrence, has the same meaning as in section 27;

“place of work”, means a place, whether or not in a building or structure, in which work is performed for money —

(a) by an employee of an employer who is the occupier of the place;

(b) by an occupier of the place; or

“plant”—

(a) means a machine, appliance, implement, tool or item of equipment; and

(b) includes a thing fitted to, connected with or appurtenant to anything referred to in paragraph 48(1)(a);

“practicable” means practicable having regard to —

(a) the severity of the relevant hazard or risk;

(b) the state of knowledge about the hazard or risk and the ways of removing or lessening the hazard or risk;

(d) the cost of removing or lessening the hazard or risk;

“substance” means a natural or artificial substance, whether in solid or liquid form or in the form of a gas or vapour.

Duties of employers

49. (1) An employer shall provide and maintain, so far as is practicable, a working environment that is safe and without risk to the health of —

(a) an employee employed by the employer; or

(b) another person performing work in the working environment.

Penalty: 40 penalty units.

(2) Without limiting the generality of subsection 49(1), an employer contravenes that subsection if the employer fails to take all reasonably practicable steps to —

(a) provide and maintain plant and systems of work that are safe and without risk to health;

(aa) provide and maintain a place of work that is free of bullying and to take such steps as may be necessary to prevent or stop bullying that may take place;

(b) make arrangements adequate to ensure that the use, handling, storage and transport of plant and substances is safe and without risk to health;

(c) maintain a place of work of which the employer is the occupier in a condition that is safe and without risk to health; and

(d) provide information, instruction, training and supervision adequate to ensure safety and an absence of risk to health.

Safety equipment

49A. (1) Where an employee is required by this Act or by another law or by the employer to wear or use safety equipment in the course of employment, the employer shall provide the employee with the safety equipment.

Penalty: 10 penalty units.

(2) A person authorised for the purposes of this Part may direct an employer to require employees of that employer to wear or use certain safety equipment in the course of their employment and such a direction is a requirement for the purposes of subsection 49A(1).

(3) The safety equipment referred to in subsection 49A(1) shall be provided free of charge by the employer.

(4) An employee shall not disobey, disregard or fail to comply with a reasonable direction of an employer in relation to the wearing or use of safety equipment provided under subsection 49A(1).

Penalty: 10 penalty units.

(5) An employee who is provided with safety equipment under this section shall take reasonable care of the equipment, which remains the property of the employer.

Safety procedures

49B. (1) An inspector may direct an employer to adopt specified procedures in relation to the performance of tasks reasonably known or reasonably suspected to involve risks to employees of that employer.

(2) An employer shall comply with a direction given under subsection 49B(1).

Penalty: 20 penalty units.

Duties of occupiers

50. (1) An occupier of a place of work shall take such measures as are practicable to ensure that a person, other than an employee of the occupier, is not exposed to a risk to the person’s health or safety arising from the occupier’s use of the place of work.

Penalty: 40 penalty units.

(2) An occupier of a place of work shall take such measures as are practicable to ensure that the place of work and means of access to or egress from the place of work are safe and without risk to health.

Penalty: 40 penalty units.

(3) In subsection 50(1), “employee” includes a person referred to in paragraph 49(1)(b).

Duties of manufacturers, etc

51. (1) A person who designs, manufactures, imports or supplies plant or a substance for use at a place of work shall, so far as is practicable —

(a) ensure that the plant or substance is designed and constructed so as to be safe and without risk to health when properly used; and

(b) take measures to ensure that information relating to the use of the plant or substance at a place of work in a manner that is safe and without risk to health is made available to a person to whom the plant or substance is provided.

Penalty: 40 penalty units.

(2) A person who erects or instals plant for use at a place of work shall ensure, so far as is practicable, that the plant is erected or installed in a way that does not constitute a risk to safety or health when the plant is properly used.

Penalty: 40 penalty units.

(3) Plant or a substance shall be taken not to be properly used by a person for the purposes of this section where the plant or substance is used without regard to information or advice available to the person concerning that use.

Duties of employees

52. (1) An employee present at a place of work shall, so far as is practicable, take care for —

(a) the employee’s safety and health; and

(b) the safety and health of another person who may be affected by the employee’s acts or omissions at the place of work.

Penalty: 40 penalty units.

(2) An employee present at a place of work shall not —

(a) wilfully or recklessly interfere with or misuse anything provided in the interests of safety or health at the place of work; or

(b) wilfully or recklessly place at risk the safety or health of the employee or another person present at the place of work.

Penalty: 40 penalty units.

(3) In this section, “employee” includes a person referred to in paragraph 49(1)(b).

Records and notifications, etc

53. (1) An employer shall, so far as is practicable —

(a) monitor the health of employees of the employer; and

(b) monitor conditions at a place of work occupied by the employer.

(2) An employer must keep such records as are prescribed by the rules for the purposes of this subsection, for such period as is so prescribed, relating to the safety and health of employees of the employer.

(3) Where an employee suffers death or permanent incapacity arising out of, or in the course of, employment by an employer, the employer shall as soon as practicable, and in any case within 7 days, after the death or permanent incapacity becomes known to the employer, provide to the Minister information in the form prescribed by the rules for the purposes of this subsection relating to —

(a) the death or permanent incapacity; and

(b) the events which gave rise to the death or permanent incapacity.

Penalty for an offence against

subsection 53(1), 53(2) or 53(3): 20 penalty units.

(4) Subsection 53(3) does not apply to an employer who has a lawful excuse for not providing the information referred to in that subsection.

Medical and first aid services

54. (1) An —

(a) employer; or

(b) occupier of a place of work,

shall provide at a place of work occupied by the employer or occupier such medical and first aid services or facilities as are appropriate.

Penalty: 10 penalty units.

(2) For the purposes of subsection 54(1), the rules may prescribe the provision of —

(a) medical and first aid services or facilities, or medical or first aid services or facilities, to be provided for a specified class of employees; or

(b) medical and first aid services or facilities, or medical or first aid services or facilities, to be provided by a specified employer or occupier, or a specified class of employers or occupiers.

Complaints

55. (1) A person may complain to the Chief Executive Officer or an inspector or the Minister that this Part is not being complied with by another person.

(2) A complaint made to the Minister under subsection 55(1) shall be referred by the Minister, as soon as practicable, to the Chief Executive Officer or an inspector.

(3) Where the Chief Executive Officer or an inspector receives a complaint under subsection (1) or (2), the Chief Executive Officer or the inspector shall, as soon as practicable, investigate the complaint.

(4) Despite subsection (3), if a complaint is made or referred to the Chief Executive Officer under this section:

(a) the Chief Executive Officer may require an inspector to investigate the complaint; and

(b) if so required, the inspector must, as soon as practicable, investigate the complaint.

Stop work and improvement notices

56. (1) Where, in the opinion of an inspector or the Minister, this Part is not being complied with by a person, the inspector or Minister may, by notice in writing served on the person —

(a) require the person to cease to use a place of work, system of work, plant or substance specified in the notice; or

(ab) require the person to direct employees of the person to stop carrying out a particular task or to stop carrying out a particular task in a particular manner; or

(b) require the person to take measures necessary in the opinion of the inspector or Minister to ensure that a place of work, system of work, plant or substance specified in the notice does not constitute a risk to safety or health.

(2) Subject to subsection 56(8), a person shall comply with a notice served on the person under subsection 56(1).

Penalty: 40 penalty units.

(3) Where a person on whom a notice has been served under subsection 56(1) is aggrieved by a requirement of the notice, the person may, within 7 days after service of the notice, apply to the Court of Petty Sessions for a review of the requirement.

(4) The Minister shall be the respondent to an application under subsection 56(3).

(5) Where the Court of Petty Sessions is satisfied by the person making the application under subsection 56(3) that the requirement that is the subject of the application is not necessary to be complied with in order for this Part, other than subsection 56(1), to be complied with by the person, the Court may —

(a) cancel the requirement; or

(b) vary the requirement to the extent necessary to ensure that the requirement is consistent with this Part, other than subsection 56(1).

(6) Where subsection 56(5) does not apply, the Court of Petty Sessions shall confirm the requirement that is the subject of the application.

(7) A person shall comply with a requirement in a notice under subsection 56(1) that has been varied or confirmed by the Court of Petty Sessions.

Penalty: 40 penalty units.

(8) Where a requirement in a notice under subsection 56(1) requires the taking of measures under paragraph 56(1)(b) by a person, the person may, from the time of making an application under subsection 56(3) and until the application is disposed of, elect to cease to use the place of work, system of work, plant or substance that is the subject of the requirement instead of complying with the requirement.

(9) An election under subsection 56(8) is of no effect until notified to an inspector or the Minister in writing by the person making the election.

(10) A person who makes an election under subsection 56(8) shall comply with the election.

Penalty for an offence

against this subsection: 40 penalty units.

Inspectors

57. (1) The Chief Executive Officer may, by instrument in writing published in the Gazette, appoint persons to be inspectors for the purposes of this Part.

(2) Subject to subsection 57(3), an inspector may enter land or a building for the purpose of —

(a) ensuring that this Part or the rules, or a notice issued under this Part, is being complied with; or

(b) investigating a complaint under section 55.

(3) An inspector shall not —

(a) enter land or a building; or

(b) remain on land or in a building,

unless the inspector produces, if requested to do so, the instrument referred to in subsection 57(1) or a copy of the instrument.

(4) A person shall not —

(a) subject to compliance by an inspector with subsection 57(3), refuse to permit an entry to be made by an inspector under this section; or

(b) assault, hinder or obstruct an inspector performing a function under this Part.

Penalty for an offence

against this subsection:

(a) in the case of a

natural person — 20 penalty units or imprisonment for 12 months, or both; and

(b) in the case of a

body corporate — 100 penalty units.

Inspectors—management and control

57A. (1) The Chief Executive Officer is responsible for the management and control of inspectors.

(2) The Chief Executive Officer may give directions to an inspector in relation to the performance and exercise of the inspector’s functions and powers under this Part.

(3) An inspector must comply with any directions given to the inspector under subsection (2).

Codes of practice

58. (1) The Minister may make Codes of Practice for the purpose of ensuring, so far as practicable, that working environments are safe and without risk to health.

(2) Notice of the making of a Code of Practice shall be published in the Gazette, and a Code has effect from the date of publication of the notice or from a later date specified in the notice.

(3) A Code of Practice is of no effect to the extent that the Code is inconsistent with this Act.

(4) As soon as practicable after making a Code of Practice the Minister shall lay a copy of the Code before the Legislative Assembly.

Effect of Codes of Practice

59. Where a Code of Practice is relevant to a matter in relation to which an inspector or the Minister may form an opinion under subsection 56(1), the inspector or Minister shall have regard to the Code in forming an opinion under that subsection.

Prosecutions

60. (1) A person other than an inspector or the Minister shall not institute a prosecution under this Part.

(2) In a prosecution by an inspector under this Part, the production of an instrument referred to in subsection 57(1), or a document purporting to be, or to be a copy of, such an instrument, is prima facie evidence that the person named in the instrument or document is an inspector.

No effect on civil liability

61. (1) A breach by a person of a duty imposed by or under this Part does not give rise to a cause of action against that person or another person.

(2) Subject to subsection 61(3), nothing in this Part affects the liability a person would have had, apart from this Part, for an act or omission giving rise to a cause of action against that person or another person.

(3) This section does not affect —

(a) the prosecution of a person for an offence; or

(b) the making of an application for review under subsection 56(3).

Reports

63. The Minister shall, as soon as practicable after 30 June in a year, lay before the Legislative Assembly a report containing in respect of the year ending on that date —

(a) statistical information on occupational health and safety, including information on the incidence of occupational accidents and diseases; and

(b) such other information on occupational health and safety as the Minister determines.

Consultative workplace arrangements

64. The rules may prescribe consultative arrangements relating to occupational health and safety to be entered into between employers and employees in respect of places of work or a class of places of work.

PART 5 — REVIEW OF MATTERS RELATING TO COMPENSATION

Division 1 — Internal review by Employment Liaison Officer

Internal review—applications

65. (1) A person or entity covered by subsection (2) may apply to the Employment Liaison Officer for an internal review of a matter arising under Part 3 that affects the interests of the person or entity.

(2) This subsection covers the following:

(a) a person who has made a claim for compensation under section 37A in relation to an injury, condition or death, but only if the person who suffered the injury or condition, or who died, was employed by an employer who was a member of a public scheme at the time of events giving rise to, or contributing to, the injury, condition or death;

(b) a member or former member of a public scheme.

(3) An application for an internal review under subsection (1) must:

(a) be in writing; and

(b) set out the reasons for the application.

(4) An application for an internal review of a matter under subsection (1) must be made:

(a) within 30 days after the day on which the matter arises (for example, by the making of a decision by the Employment Liaison Officer in relation to the matter); or

(b) within such longer period (if any) as the Employment Liaison Officer allows.

Who undertakes internal review?

66. (1) On receiving an application under section 65 for an internal review of a matter, the Employment Liaison Officer must:

(a) review the matter personally; or

(b) ensure that the matter is reviewed by a delegate of the Employment Liaison Officer.

(2) However, if the matter relates to a claim (the “primary claim”) for compensation under section 37A, the matter must not be reviewed by a person who has been involved in dealing with:

(a) the primary claim; or

(b) a claim, by a member or former member of a public scheme, to be indemnified by the Commonwealth under subsection 39A(2) in relation to the primary claim.

Note: This subsection applies to the Employment Liaison Officer personally as well as to a delegate of the Employment Liaison Officer.

(3) The “internal reviewer” of a matter is the person who reviews the matter under this section.

Internal review—determination and notice

67. (1) If an application has been made under section 65 for an internal review of a matter, the internal reviewer must make a written determination in relation to the matter within the period prescribed by rules made for the purposes of this subsection.

(2) As soon as practicable after making the determination, the internal reviewer must give written notice of the determination to:

(a) the applicant for the internal review; and

(b) if the matter relates to a claim for compensation under section 37A:

(i) the person who made the claim; and

(ii) the person or entity against whom the claim was made.

(3) A notice of a determination must:

(a) be accompanied by a copy of the determination; and

(b) set out the reasons for the determination, if those reasons are not set out in the copy of the determination; and

(c) explain the effect of section 82 (which deals with when, and how, an application may be made to the Tribunal for an inquiry into a matter).

Division 2 — Inquiry by Tribunal

Tribunal

78. (1) The Court of Petty Sessions has jurisdiction to exercise and perform the powers, duties, functions and authorities conferred or imposed on the Court by:

(a) this Division; or

(b) a provision of this Act that relates to an inquiry undertaken by the Tribunal under this Division.

Note: The Court of Petty Sessions has a separate jurisdiction under section 56 (stop work and improvement notices) to review requirements in notices given under that section.

(2) In relation to the exercise of the jurisdiction conferred by subsection 78(1) —

(a) the Court of Petty Sessions shall be referred to as the Tribunal; and

(b) the Clerk of the Court of Petty Sessions shall be referred to as the Secretary to the Tribunal.

Constitution of Tribunal

79. (1) Subject to this section, the Tribunal shall be constituted by any 3 of its members to deal with a matter before it.

(2) Where the Chief Magistrate has given a direction about the constitution of the Tribunal in relation to a specified matter or class of matters, or in relation to all matters, before it, the Tribunal shall be constituted, subject to subsections 79(3) and 79(4) and section 80, in accordance with the direction.

(3) The Chief Magistrate shall not direct that the Tribunal shall be constituted by other than 3 members.

(4) One or more professional Magistrates shall be included in the members by whom the Tribunal is constituted if the matter in issue before the Tribunal amounts to or is of the value of a sum of money exceeding the sum referred to in section 107 of the Court of Petty Sessions Act 1960 as in force for the time being.

Disclosure of interest

80. (1) A member of the Tribunal who has a direct or indirect interest, pecuniary or otherwise, in a matter being considered or about to be considered by the Tribunal, shall, as soon as possible after the relevant facts have come to the attention of the member, disclose the nature of the interest to the Tribunal.

(2) A disclosure under subsection 80(1) shall be recorded in the records of the Tribunal and the member shall not be present during a deliberation or decision of the Tribunal in relation to the matter.

(3) In subsection 80(1), “interest” includes the holding of a position by a member of the Tribunal as an officer (whether or not a shareholder) of a body corporate that has an interest in a contract the subject of proceedings before the Tribunal.

Meetings of Tribunal

81. (1) The Tribunal shall meet at such times as are necessary for the exercise of its powers and performance of its functions.

(2) At a meeting of the Tribunal, the Tribunal, subject to this Act, shall determine the procedure to be followed at and in connection with the meeting.

Inquiry—applications

Application for inquiry

82. (1) Subject to this section, a person or entity may apply to the Tribunal for an inquiry into:

(a) a matter arising under Part 3 that affects the interests of the person or entity; or

(b) if the person or entity is the Employment Liaison Officer—a matter arising under Part 3 that affects the interests of the Commonwealth.

(2) An application to the Tribunal for an inquiry must:

(a) be in writing; and

(b) be made to the Secretary; and

Requirement for internal review in certain cases

(3) Subsections (4) and (5) apply if a person or entity (the “interested party”) may apply to the Employment Liaison Officer under section 65 for an internal review of a matter (the “relevant matter”) relating to a claim for compensation under section 37A.

(4) The interested party is not entitled to apply to the Tribunal under subsection (1) for an inquiry into the relevant matter unless:

(a) the interested party has made an application (the “internal review application”) under section 65 for an internal review of the relevant matter; and

(b) either:

(i) the interested party has received notice in accordance with 67 of a determination by the internal reviewer in relation to the relevant matter, but the interested party remains aggrieved in relation to the matter; or

(ii) if the interested party has not received such a notice—the period prescribed in relation to the internal review application, by rules made for the purposes of subsection 67(1), has expired.

(5) If the interested party is entitled to apply to the Tribunal under subsection (1) for an inquiry into the relevant matter because subparagraph (4)(b)(i) applies, such an application by the interested party under subsection (1) must:

(a) be made within:

(i) the period of 7 days beginning on the day after the day on which the interested party received the notice of the determination by the internal reviewer referred to in subparagraph (4)(b)(i); or

(ii) such longer period (if any) as the Tribunal allows; and

(b) be accompanied by a copy of that determination.

Inquiry—how convened

Inquiry must be convened

82AA. (1) The Secretary must, as soon as practicable after receipt of an application under section 82 for an inquiry into a matter, inform a member of the Tribunal of the application.

(2) If a member of the Tribunal is informed of the application, the Tribunal must convene an inquiry into the matter.

(3) The Tribunal may determine the time and place at which the inquiry is to be held.

Notice of inquiry

(4) Each of following persons or entities is an “eligible party” in relation to an inquiry:

(a) the person or entity who applied for the inquiry under section 82;

(b) if the inquiry is into a matter that relates to a claim for compensation under section 37A:

(i) the person who made the claim; and

(ii) the person or entity against whom the claim was made;

(5) The Tribunal must give each eligible party in relation to the inquiry written notice of:

(a) the time and place at which the inquiry is to be held; and

(b) the matter to which the inquiry relates.

Inquiry—participation and representation

Participation in inquiry

82AB. (1) An eligible party in relation to an inquiry is entitled to:

(a) make representations to the Tribunal in relation to the inquiry; and

(b) appear at the inquiry.

(2) If the Tribunal considers that it is appropriate to do so, the Tribunal may allow a person or entity who is not an eligible party in relation to the inquiry to do either or both of the following:

(a) make representations to the Tribunal in relation to the inquiry;

(b) appear at the inquiry.

(3) If an eligible party who has been given notice of the inquiry in accordance with subsection 82AA(5) fails to attend at the time and place specified for the inquiry, the Tribunal may proceed in the absence of that party.

Representation at inquiry

(4) An eligible party in relation to an inquiry:

(a) is entitled to appear at the inquiry:

(i) personally; or

(ii) if the person is a body corporate—by a director, secretary or agent of the body corporate; and

(b) subject to subsection (5), is entitled to be represented at the inquiry by:

(i) a legal practitioner; or

(ii) another person, with leave of the Tribunal.

(5) If, in the opinion of the Tribunal, the total value of all of the entitlements under this Act that are at issue in the inquiry is likely to be less than $1,000, the Tribunal may refuse to allow any eligible party in relation to the inquiry to be represented at the inquiry by a legal practitioner.

(6) Subsection (5) does not give the Tribunal the power to prevent:

(a) an eligible party who is a legal practitioner from appearing personally; or

(b) an eligible party that is a body corporate from appearing by a director, secretary or agent of the body corporate who is a legal practitioner.

Meetings of Tribunal usually to be held in public

82A. (1) Subject to this section, proceedings before the Tribunal shall be heard and determined in a place to which members of the public have access, and any person is entitled, so far as is practicable, to be present during the proceedings.

(2) A person is not entitled to be present during the private deliberations of members of the Tribunal about proceedings heard, or to be heard or determined, in accordance with subsection 82A(1).

(3) Subject to subsection 82A(4), the Tribunal may order —

(a) that a person or class of persons shall not be present during proceedings before the Tribunal;

(b) that all or a specified part of the evidence or other information given or to be given in proceedings before the Tribunal shall not be published or reported, or may only be published or reported subject to conditions (including conditions as to the time of publication) specified by the Tribunal; or

(c) that the name of a party to proceedings before the Tribunal, or of a person giving or intending to give evidence or information in proceedings before the Tribunal, shall not be published or reported.

(4) The Tribunal shall not make an order under subsection 82A(3) unless it is satisfied that —

(a) the making of the order is desirable in the interests of justice; or

(b) unless the order is made, the administration of justice is likely to be prejudiced.

(5) A person shall comply with an order made under subsection 82A(3).

Penalty: 10 penalty units.

(6) A reference in this section to the publishing or reporting of the name of a person includes a reference to publishing or reporting a reference or allusion to the person so as to disclose the identity of the person.

Application of rules of evidence, etc

83. For the purposes of an inquiry, the Tribunal —

(a) is not bound by rules of evidence and may inform itself in such manner as it thinks fit;

(b) shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; and

(c) may give directions relating to procedure that, in its opinion, will reduce delay and assist to achieve a prompt hearing of the matter at issue.

Evidence

84. (1) The Tribunal may, for the purposes of this Act —

(a) receive evidence on oath or affirmation; and

(b) receive documents in evidence.

(1A) Evidence or documents in evidence may be received by the Tribunal in a form, or by means, determined by the Tribunal.

(1B) Without limiting the generality of subsection 84(1A) —

(a) the Tribunal may, if it so determines, receive evidence by telephone, or documents in evidence by facsimile transmission; and

(b) if a proposed witness is not physically present before the Tribunal, the Tribunal may make such arrangements as it thinks fit for the administration to the proposed witness of an oath or the making by the proposed witness of an affirmation.

(2) The Tribunal may, by notice in writing served on a person, summon the person to appear before the Tribunal and may require the person to produce to the Tribunal documents specified in the notice.

(3) A person summoned under subsection 84(2) shall not, without lawful excuse, fail to appear or produce documents as required by the notice.

Penalty: 10 penalty units or imprisonment for 6 months, or both.

(4) A person, whether summoned or not, who appears before the Tribunal shall not, without lawful excuse —

(a) refuse to be sworn, or to make an affirmation, as a witness;

(b) fail to answer a question that the person is lawfully required to answer; or

Penalty for an offence

against this subsection: 10 penalty units or imprisonment for 6 months, or both.

Tribunal may make orders

85. (1) After determining a matter in an inquiry, the Tribunal:

(a) must, as soon as practicable after making its determination, give notice of the determination, together with a copy of the determination, to each eligible party in relation to the inquiry; and

(b) may make, or refuse to make, an order in accordance with this section.

(2) The Tribunal may make any of the following orders:

(a) an order requiring a person to do any (or all) of the following:

(i) to do an act required or permitted to be done by this Act;

(ii) to refrain from doing an act prohibited by this Act;

(iii) to pay money required or permitted to be paid by this Act; or

(b) an order of the kind mentioned in section 32C (compensation for permanent incapacity—powers of Tribunal).

(2A) The Tribunal must not make any order as to costs.

(3) In addition to any other power conferred by this Act, the Tribunal —

(a) may make in relation to an application an order the terms of which have been consented to by the person who made the application and by each person proposed to be bound by the order; and

(b) may dismiss an application where the person who made the application notifies the Tribunal in writing that the application is withdrawn.

(4) Subject to subsection 82AB(3), the Tribunal shall not make an order under subsection 85(2) unless it has given the person to whom the order is proposed to be directed a reasonable opportunity of making representations to the Tribunal.

(5) If the Tribunal makes an order in an inquiry, the Tribunal must, as soon as practicable after making the order, give notice of the order, together with a copy of the order, to:

(a) each person to whom the order is directed; and

(b) each eligible party in relation to the inquiry.

(5A) A person or entity who has been given notice of a determination or order by the Tribunal may request the Tribunal to give written reasons for the determination or order. The Tribunal must provide those reasons within the period of 7 days beginning on the day on which the Tribunal receives the request.

(6) The Tribunal has no jurisdiction to deal with an application to inquire into a complaint where the subject matter of the complaint, in the opinion of the Tribunal, amounts to an allegation that a person committed an offence under this Act.

(7) Where the Tribunal declines jurisdiction in accordance with subsection 85(6), the Tribunal shall, as soon as practicable and in any case within 7 days after declining, give reasons for the determination that the Tribunal has no jurisdiction.

(11) If the Tribunal is required to give a person or entity notice of a determination or order of the Tribunal, the Tribunal must also give the person or entity a written or oral explanation of the effect of sections 91 and 92 (which deal with when, and how, an appeal may be made to the Supreme Court from a determination or order of the Tribunal).

(12) Failure by the Tribunal to comply with subsection 85(11) does not affect the operation or validity of an order or determination made by the Tribunal under this section.

Compliance with orders

86. (1) Where the Tribunal makes an order under section 85, the person to whom the order is directed shall comply with the order.

(2) Where the Tribunal makes an order under paragraph 85(2)(c), the person to whom the order is directed shall, within 7 days after a copy of the order has been given to the person, pay the money to the person specified in the order.

Penalty: 40 penalty units.

Dismissal of frivolous applications

87. Where, at any stage of an inquiry, the Tribunal is satisfied that an application is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the application should not be entertained, the Tribunal may dismiss the application.

Reports

89. The Tribunal shall, when it sees fit but not less frequently than annually, prepare and furnish to the Minister a report on the operations of the Tribunal during the period since the last such report was furnished.

Division 3 — Review by Supreme Court

Appeal to Supreme Court

91. (1) A person to whom notice of a determination or order of the Tribunal is given under section 85 may, within 14 days after the notice is given, institute an appeal to the Supreme Court from the determination or order.

(2) An appeal shall be instituted by the appellant filing a notice of appeal in the office of the Registrar of the Supreme Court together with a copy of the determination or order that is appealed from.

(3) As soon as practicable after a person has instituted an appeal, the person shall serve a copy of the notice of appeal on each other person who was a party to the proceedings before the Tribunal out of which the appeal arose.

(4) The Supreme Court may, subject to such conditions (if any) as it thinks fit, dispense with the requirement for service of a copy of a notice of appeal in accordance with subsection 91(3) if it considers that it is necessary or expedient to do so, or if it appears that personal service cannot be effected, or may make an order for such substituted or other service as the Court thinks fit.

Jurisdiction on appeal

92. (1) Subject to subsection 92(2), the Supreme Court has general jurisdiction to hear and determine an appeal on any question, whether of fact or law, relating to the determination or order of the Tribunal that is appealed from.

(2) Where the matter in issue in an appeal amounts to or is of the value of $2500 or less, the Supreme Court does not have jurisdiction to hear and determine the appeal except on a question of law.

Powers of Supreme Court on appeal

93. (1) Subject to section 92, the Supreme Court may, on an appeal —

(a) affirm, reverse or vary the determination or order appealed from;

(b) give such judgment, or make such order, as in all the circumstances it thinks fit, or refuse to do so; or

(c) set aside all or a part of the determination or order appealed from and remit the proceedings to the Tribunal for further hearing or determination, subject to such directions (if any) as the Court thinks fit.

(2) A judgment or order under subsection 93(1) has effect as if it were a determination or order of the Tribunal and may be enforced accordingly.

Effect of appeal on determination or order of Tribunal

94. (1) Subject to this section, the institution of an appeal under section 91 does not affect the operation of the determination or order of the Tribunal out of which the appeal arose, and does not prevent the taking of action to implement the determination or order.

(2) The Tribunal or Supreme Court may make an order staying or otherwise affecting the operation or implementation of a determination or order referred to in subsection 94(1) if the Tribunal or Court, as the case may be, considers it appropriate to do so for the purpose of securing the effectiveness of the hearing and determination of an appeal instituted under section 91.

(3) An order under subsection 94(2) may be made on such conditions, if any, as the Tribunal or Court, as the case may be, thinks fit, including conditions relating to the giving of security for the prosecution of the appeal.

PART 6 — MISCELLANEOUS

Restriction on delegation by Commonwealth Minister

95. The Commonwealth Minister must not delegate the power to make rules under subsection 108(1).

Note: This section restricts the Commonwealth Minister’s power of delegation under clause 10 of Schedule 1 to the Interpretation Act 1979.

Agents

97. (1) An employee may, in writing signed by the employee, appoint a person to be the agent of the employee for the purposes of this Act.

(2) A receipt given to an employer by an agent of an employee is a sufficient discharge of the employer in respect of liability under this Act to pay to the employee the amount specified in the receipt.

Electronic transactions

97A. The Electronic Transactions Act applies in relation to this Act as if a reference in the Electronic Transactions Act to a law of the Commonwealth included a reference to this Act.

Mode of service

98. (1) Subject to this section, where this Act requires or allows a document to be given to or served on a person, the document shall be deemed to have been given or served at the following time:

(a) if the document is in the form of an electronic communication within the meaning of the Electronic Transactions Act—the time of receipt of that communication as provided by section 14A of that Act;

(b) in any other case—the time the document was handed to the person or drawn to the person’s attention.

Note: For a requirement or permission under a law of the Commonwealth to produce a document in electronic form, see section 11 of the Electronic Transactions Act and section 97A of this Act.”.

(2) The rules may prescribe that documents shall be deemed to have been given to or served on a person on compliance with a procedure, or at a time, specified in the rules.

(3) The rules may make different provision in relation to —

(a) documents of a particular kind; or

(b) recipients of a particular class.

Employment Liaison Officer, Tribunal members etc. to respect privacy

100. (1) A person to whom this section applies shall not, directly or indirectly —

(a) except in the exercise of the powers or the performance of the functions of the person under or in relation to this Act; and

(b) while the person is, or after the person ceases to be, a person to whom this section applies,

make a record of, or divulge or communicate to a person other than a person to whom it is the person’s duty to disclose it, any information with respect to —

(d) statements made by, or in relation to, another person,

acquired by the first‑mentioned person as a person to whom this section applies.

Penalty: 10 penalty units.

(2) This section applies to the following:

(a) the Commonwealth Minister;

(b) the Secretary to the Tribunal;

(d) the Employment Liaison Officer, or a person appointed under section 47G to act as the Employment Liaison Officer;

(e) a person to whom the Employment Liaison Officer delegates a power or function under subsection 47H(1).

False or misleading statements

102. (1) A person shall not knowingly —

(a) make, whether orally or in writing, a false or misleading statement —

(i) in connection with, or in support of, a claim for compensation, whether for an employee or for another person;

(ii) with intent to deceive the Employment Liaison Officer or the Tribunal;

(iii) with intent to deceive a person performing a function in relation to this Act; or

(iv) with intent to affect an amount or rate of compensation; or

(b) obtain payment of an amount of compensation by means of a false or misleading statement, impersonation or fraudulent device.

Penalty: (a) in the case of a

natural person — 50 penalty units or imprisonment for 2 years, or both; and

(b) in the case of a

body corporate — 250 penalty units.

(2) Where a person is convicted of an offence against subsection 102(1), the Court may, in addition to imposing a penalty in respect of the offence, order the person to repay an amount equal to an amount paid by way of compensation in consequence of the act or omission in respect of which the person was convicted.

Offences by body corporate

103. (1) Where a body corporate is guilty of an offence against this Act, any officer of the body corporate who was in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the commission of the offence is also guilty of the offence.

(2) For the purposes of subsection 103(1) “officer”, in relation to a body corporate, includes a director, secretary, executive officer, manager or employee of the body corporate.

Conduct by directors, servants or agents

104. (1) Where, in proceedings for an offence against this Act in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a person who is a director, servant or agent of the body corporate, being a person by whom the conduct was engaged in within the scope of the person’s actual or apparent authority, had that state of mind.

(2) Conduct engaged in on behalf of a body corporate —

(a) by a person who is a director, servant or agent of the body corporate within the scope of the person’s actual or apparent authority; or

(b) by another person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent,

is to be taken for the purposes of this Act to have been also engaged in by the body corporate.

(3) A reference in subsection 104(1) to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and to the person’s reasons for the person’s intention, opinion, belief or purpose.

Prosecutions for offences

105. Notwithstanding any enactment, proceedings for an offence against this Act may be commenced at any time within 3 years after the commission of the offence.

Victimisation prohibited

106. (1) An employer shall not —

(a) dismiss an employee;

(b) alter an employee’s position to the employee’s prejudice; or

by reason of the fact that the employee —

(f) has made, or proposes to make, an application or complaint under this Act;

(g) has commenced or continued, or proposes to commence or continue, any proceedings under, or in relation to, this Act; or

(h) has given evidence or provided information in relation to an application or proceeding by another person under, or in relation to, this Act.

Penalty: 40 penalty units.

(4) In proceedings for an offence against this section, if all the relevant facts and circumstances, other than the reason set out in the charge as being the reason of an action alleged in the charge, are proved, it lies upon the person charged to prove that the action was not actuated by that reason.

Protection from liability

107. (1) A person covered by subsection (2) is not liable in civil proceedings for or in relation to anything done, or omitted to be done, in good faith in the performance or exercise, or purported performance or exercise, of a function or power under this Act.

(2) This subsection covers the following:

(a) the Commonwealth;

(b) the Commonwealth Minister;

(d) a member of the Tribunal;

(e) the Secretary to the Tribunal;

(f) the Employment Liaison Officer, or a person appointed under section 47G to act as the Employment Liaison Officer;

(g) a person to whom the Employment Liaison Officer delegates a power or function under subsection 47H(1);

(h) the Chief Executive Officer;

(i) an inspector.

Rules

108. (1) The Commonwealth Minister may, by legislative instrument, make rules prescribing matters:

(a) required or permitted by this Act to be prescribed by the rules; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) directly amend the text of this Act.

SCHEDULE

Section 32

ASSESSMENT OF LOSS OF AMENITIES AND OF ENJOYMENT OF LIFE BECAUSE OF PERMANENT LOSS OR IMPAIRMENT OF FUNCTION

Item	Nature of permanent loss or impairment of bodily function								Percentage loss or impairment
	Loss of part of body
1.	Total loss of an arm or the greater part of an arm								80

2.	Total loss of a hand or of the lower part of an arm								70

3.	Total loss of a thumb								28
	Total loss of one segment of a thumb								14
	Loss of the pulp of a thumb								8

4.	Total loss of an index finger								14
	Total loss of 2 segments of an index finger								12
	Total loss of one segment of an index finger								8
	Loss of the pulp of an index finger								4

5.	Total loss of the middle finger								12
	Total loss of 2 segments of a middle finger								10
	Total loss of one segment of a middle finger								8
	Loss of the pulp of a middle finger								3

6.	Total loss of a ring or small finger								8
	Total loss of 2 segments of a ring or small finger								6
	Total loss of one segment of a ring or small finger								4
	Loss of the pulp of a ring or small finger								2

7.	Total loss of all fingers, thumb intact (treat as 90% of loss of a hand)								63

8.	Total loss of a leg								75
	Total loss of a foot or of the lower part of a leg								60

9.	Total loss of a great toe								10
	Loss of one segment of a great toe								5

10.	Total loss of a lesser toe								2.5

11.	Total loss of both legs by above‑knee or below knee amputation								100

12.	Loss of both arms, above‑elbow or below‑elbow amputation								100

13.	When applying the foregoing provisions of this Schedule for the purpose of assessing permanent loss or impairment of function affecting the hand and its digits, if multiple digits are involved regard shall be had to the summation of individual losses specified in this Schedule and also to permanent loss or impairment of function affecting the hand or lower arm as a whole as a gripping organ

	Complete loss of finger/palm grip in all its components shall be treated for the purposes of this Schedule as constituting 60% loss of function of the hand, and complete loss of opposition or pincers grip shall be treated for the purposes of this Schedule as constituting 40% loss of function of the hand, these figures to be apportioned into four equal parts for the individual digits.

	Example: Finger/Palm Grip —
	Index		Middle			Ring		Little finger
	15%		15%			15%		15% loss of function of hand, equalling altogether 60% of loss of function of hand.
	Opposition or Pincers Grip —
	Index	Middle			Ring		Little finger
	10%	10%			10%		10% loss of function of hand, equalling altogether 40% of loss of function of hand.
	The higher figure arrived at after assessment by both these methods shall be the figure to which regard shall be had for the purposes of this Schedule.

14.	If in the case of injury to a limb or part of a limb it is considered desirable in order to obtain the best functional result that the limb or portion of the limb be amputated at a more proximal level than the part injured, the disability shall be assessed as if the injury itself had necessitated the amputation at the more proximal level.

	Assessment of arthrodeses
15.	The following figures are to be used for a sound arthrodesis in the position of optimum function, partial joint stiffnesses to be proportionally assessed.

16.	Shoulder				Treat as 35% loss of function of the arm				28

17.	Elbow				Treat as 40% loss of function of the arm				32

18.	Wrist				Treat as 30% loss of function of the lower arm				21

19.	Hip				Treat as 50% loss of function of the leg				37.5

20.	Knee				Treat as 40% loss of function of the leg				30
21.	Ankle				Treat as 35% loss of function of the lower leg				21

22.	Triple (foot arthrodesis)				Treat as 30% loss of function of the lower leg				18

	Assessment of shortening
23.	Up to 12.5mm				Treat as 5% loss of function of the leg				3.75

24.	Exceeding 12.5mm but not exceeding 37.5 mm				Treat as 10% loss of function of the leg				7.5

25.	Exceeding 25mm but not exceeding 37.5 mm				Treat as 15% loss of function of the leg				11.25

26.	Exceeding 37.5mm but not exceeding 50 mm				Treat as 20% loss of function of the leg				15

27.	Patellectomy
	Where there is full extension of the knee and full flexion in the knee with minimal quadriceps thigh muscle wasting, treat as 15% loss of function of the leg, this figure to be varied in less successful results related to residual joint stiffness								11.25

28.	Excision of head of radius
	Where full elbow extension and flexion movement is regained with full forearm rotation movement in either direction, treat as 15% loss of function of the arm, this basic figure to be varied in less successful cases related to residual joint stiffness								12

29.	Excision of lower end of ulna forearm bone
	Where full forearm rotation movements are preserved and the wrist is normal, treat as 10% loss of function of the lower arm, this figure to be varied in less successful cases related to residual joint stiffness								7
30.	Ligamentous injuries of the knee joint with residual instability and including quadriceps insufficiency with comparable instability

	Moderate laxity			Treat as 15% loss of function of the leg					11.25

31.	Multiple disabilities
	If the disability affects more than one limb the assessment shall be made by summating the figures, but if the disabilities involve one limb the method of progressive extraction of losses, ie, regarding the limb as a whole, shall be used

32.	Spinal disability and other disabilities
	Cervical spine
	(a) Persistent muscle spasm, rigidity, and pain substantiated by loss of anterior curve revealed by X‑ray, although no demonstrable structural pathology, moderate referred shoulder/arm pain								10

	(b) In cases similar to those mentioned in paragraph 32(a), but with gross degenerative changes consisting of narrowing of intervertebral spaces and oesteoarthritic lipping of vertebral margins								20

33.	Thoracic spine
	(a) Spinal strain related to trauma with persistent discomfort moderate degenerative changes with osteoarthritic lipping, no X‑ray evidence of structural trauma								10

	(b) Fracture								:
	(i) Compression 25% involving 1 or 2 vertebral bodies, no fragmentation, healed, no neurologic manifestations								10
	(ii) Compression 50% with involvement posterior elements, healed, no neurologic manifestations, persistent pain								20

34.	Lumbar spine
	(a) Mild to moderate persistent muscle spasm with pain, with moderate degenerative lipping revealed by X‑ray								10

	(b) Fracture:
	(i) Vertebral compression 25%, 1 or 2 adjacent vertebral bodies, little or no fragmentation, no definite pattern or neurologic changes								15

	(ii) Vertebral compression 50%, 1 or 2 adjacent vertebral bodies, little or no fragmentation, no definite pattern or neurologic changes								20

	(iii) In cases similar to those mentioned in subparagraph 34(b)(ii), but with successful fusion, mild pain								25

35.	Neurogenic low back pain ‑ disc injury
	(a) Surgical excision of disc, no fusion, good result, no persistent sciatic pain								10

	(b) Surgical excision of disc, no fusion, moderate persistent pain and stiffness aggravated by heavy lifting with necessary modification of activities								20

	(c) Surgical excision of disc with fusion, activities of lifting moderately modified								15

	(d) Surgical excision of disc with fusion, persistent pain and stiffness aggravated by heavy lifting necessitating modification of all activities requiring heavy lifting								25

36.	Tetraplegia and paraplegia								100

37.	Blindness
	(a) Total blindness								100

	(b) Total loss of vision in one eye (normal vision in the other eye)								30

38.	Deafness
	(a) Total deafness								100

	(b) Total deafness in one ear (normal hearing in other ear)								17

39	Where an appliance or aid is fitted, assess residual deafness

40.	Total loss of natural permanent teeth
	(a) Anterior teeth
	Loss of 1, 2, or 3 teeth								4
	Loss of 4, 5, or 6 teeth								5
	Loss of 7 to 12 teeth								6

	(b) Posterior teeth
	Loss of 1 tooth								1
	Loss of 2 to 5 teeth								2
	Loss of 6 to 16 teeth								4

41.	Where there are subjective symptoms of pain without demonstrable clinical findings of abnormality or demonstrable structural pathology, no assessment should be made under this Schedule.

NOTES

The Employment Act 1988 as shown in this consolidation comprises Act No. 27 of 1988 and amendments as indicated in the Tables below.

Enactment	Number and year	Date of commencement	Application saving or transitional provision
Employment Act 1988	27, 1988	Parts 1, 5, 6 1.7.91
		Parts 2, 4 1.9.91
		Part 3, Schedule 1.11.91

Employment Amendment Act 1988	30, 1988	1.7.91

[Previously reprinted as at 1 July 1991 incorporating amending Act listed above]

Employment Amendment Act 1993	4, 1994	14.3.94

Employment Amendment Act 1995	12, 1995	30.6.95

Statute Law (Miscellaneous Provisions) Act 1995	13, 1995	27.7.95

Employment Amendment Act 1996	8, 1996	20.6.96

Employment (Public Holidays) Amendment Act 2001	12, 2001	5.10.01

Employment Amendment Act 2000	3, 2000	8.8.03

Employment Amendment (No. 2) Act 2000	4, 2000	8.8.03

Employment Amendment (No. 2) Act 2001	17, 2003	8.8.03

Employment Amendment Act 2003	7, 2004	14.5.04

[Previously consolidated as at 14 May 2004]

Employment (Amendment) Act 2011	9, 2011	19.8.11

[Previously consolidated as at 20 August 2011]

Employment (Amendment No. 2) Act 2011	2, 2012	5.4.12

[Previously consolidated as at 10 April 2012]

Interpretation (Amendment) Act 2012 [to substitute throughout —Commonwealth Minister for Minister; and to substitute Minister for executive member]	14, 2012	28.12.12

[Previously consolidated as at 23 February 2013]

Ordinance	Registration	Commencement	Application, saving and transitional provisions
Norfolk Island Continued Laws Amendment Ordinance 2015 (No. 2, 2015) (now cited as Norfolk Island Continued Laws Ordinance 2015 (see F2015L01491))	17 June 2015 (F2015L00835)	Sch 1 (items 75, 76, 344, 345): 18 June 2015 (s 2(1) item 1)	Sch 1 (items 344, 345, 352, 353, 382–396, 414)
as amended by
Norfolk Island Continued Laws Amendment (2016 Measures No. 2) Ordinance 2016 (No. 5, 2016)	10 May 2016 (F2016L00751)	Sch 1 (items 1, 2, 4): 1 July 2016 (s 2(1) item 2)	—
Norfolk Island Continued Laws Amendment (Public Holidays) Ordinance 2016 (No. 13, 2016)	14 Dec 2016 (F2016L01949)	Sch 1 (item 1): 15 Dec 2016 (s 2(1) item 1)	—
Norfolk Island Continued Laws Amendment (Statutory Appointments and Other Matters) Ordinance 2018	28 Sept 2018 (F2018L01378)	Sch 1 (item 17): 29 Sept 2018 (s 2(1) item 1)	—
Norfolk Island Legislation Amendment (Fees and Other Matters) Ordinance 2019	12 Aug 2019 (F2019L01048)	Sch 1 (item 25): 13 Aug 2019 (s 2(1) item 1)	—
Norfolk Island Continued Laws Amendment (Employment) Ordinance 2020	2 July 2020 (F2020L00870)	Sch 1 (item 1): 3 Jan 2021 (s 2(1) item 2)	—
Norfolk Island Continued Laws Amendment (Employment) Ordinance 2021	16 Apr 2021 (F2021L00451)	Sch 1 (items 1–3): 17 Apr 2021 (s 2(1) item 1)	—

Note: The amendment history in the Table of Amendments below represents the modification of this title by the Norfolk Island Continued Laws Ordinance 2015 (Ord No 2, 2015) incorporating all amendments to the Norfolk Island Continued Laws Ordinance 2015 up to the compilation date. The as amended by information is not referenced in the Table of Amendments but can be seen in the legislation history above.

Table of Amendments

ad = added or inserted	am = amended		rep = repealed	rs = repealed and substituted	exp = expired
Provisions affected	How affected
3	rep	Ord No 2, 2015
4	am	30, 1988; 3, 2000; Ord No 2, 2015
6	am	Ord No 2, 2015
7	am	Ord No 2, 2015
8	am	Ord No 2, 2015
9	am	13, 1995; 3, 2000
	rs	Ord No 2, 2015
Division 1 of Part 2	rep	Ord No 2, 2015
10	rs	3, 2000
	rep	Ord No 2, 2015
11	rs	3, 2000
	am	17, 2003
	rep	Ord No 2, 2015
Division 2 of Part 2	rep	Ord No 2, 2015
12	rs	3, 2000
	rep	Ord No 2, 2015
13	rs	3, 2000; 4, 2000
	rep	Ord No 2, 2015
14	rs	3, 2000; 17, 2003; 2, 2012
	rep	Ord No 2, 2015
15	rs	3, 2000
	am	17, 2003
	rep	Ord No 2, 2015
16	rs	3, 2000
	rep	Ord No 2, 2015
17	rs	3, 2000
	rep	Ord No 2, 2015
18	am	4, 1994
	rs	3, 2000
	rep	Ord No 2, 2015
18A	ad	7, 2004
	rep	Ord No 2, 2015
19	rs	3, 2000
	rep	Ord No 2, 2015
Division 3 of Part 2	rep	Ord No 2, 2015
20	rs	3, 2000
	rep	Ord No 2, 2015
21	rs	3, 2000
	rep	Ord No 2, 2015
22	rs	3, 2000
	rep	Ord No 2, 2015
23	rs	3, 2000
	am	7, 2004; 17, 2003
	rep	Ord No 2, 2015
24	rep	8, 1996
	ad	3, 2000
	am	7, 2004; Ord No 2, 2015
25	rs	3, 2000
	rep	Ord No 2, 2015
Division 1 of Part 3 heading	ad	Ord No 2, 2015
26	am	3, 2000; 9, 2011; Ord No 2, 2015
28	am	9, 2011
	rs	Ord No 2, 2015
28A	ad	Ord No 2, 2015
Division 2 of Part 3 heading	ad	Ord No 2, 2015
29	am	Ord No 2, 2015
30	am	8, 1996; 9, 2011; Ord No 2, 2015
31	am	Ord No 2, 2015
32	am	30, 1988; 8, 1996
	rs	Ord No 2, 2015
32A	ad	Ord No 2, 2015
32B	ad	Ord No 2, 2015
32C	ad	Ord No 2, 2015
33	am	Ord No 2, 2015
34	am	Ord No 2, 2015
35	am	Ord No 2, 2015
36	am	Ord No 2, 2015
37	am	8, 1996
	rs	Ord No 2, 2015
Division 3 of Part 3 heading	ad	Ord No 2, 2015
37AA	ad	Ord No 2, 2015
37A	ad	9, 2011
	am	Ord No 2, 2015
38	am	8, 1996
	rs	Ord No 2, 2015
39	am	8, 1996
	rs	Ord No 2, 2015
39A	ad	9, 2011
	rs	Ord No 2, 2015
39B	ad	Ord No 2, 2015
40	am	8, 1996; Ord No 2, 2015
41	am	Ord No 2, 2015
42	rs	Ord No 2, 2015
43	am	Ord No 2, 2015
45	am	9, 2011
45A	ad	9, 2011
46	am	Ord No 2, 2015
47	am	30, 1988
	rs	Ord No 2, 2015
47A	ad	Ord No 2, 2015
47B	ad	Ord No 2, 2015
47C	ad	Ord No 2, 2015
Division 4 of Part 3	ad	Ord No 2, 2015
47D	ad	Ord No 2, 2015
47E	ad	Ord No 2, 2015
47F	ad	Ord No 2, 2015
47G	ad	Ord No 2, 2015
47H	ad	Ord No 2, 2015
48	am	9, 2011; Ord No 2, 2015
49	am	8, 1996; 9, 2011
49A	ad	8, 1996
49B	ad	8, 1996
53	am	30, 1988; Ord No 2, 2015
54	am	8, 1996; Ord No 2, 2015
55	am	9, 2011; Ord No 2, 2015
56	am	30, 1988; 8, 1996
57	am	Ord No 2, 2015
57A	ad	Ord No 2, 2015
60	am	Ord No 2, 2015
62	rep	Ord No 2, 2015
64	am	Ord No 2, 2015
Part 5 heading	rs	Ord No 2, 2015
Division 1 of Part 5	rs	Ord No 2, 2015
65	am	30, 1988
	rs	Ord No 2, 2015
66	rs	Ord No 2, 2015
67	rs	Ord No 2, 2015
76	am	9, 2011
Division 2 of Part 5 heading	rs	Ord No 2, 2015
78	rs	30, 1988
	am	Ord No 2, 2015
79	rs	30, 1988
81	am	30, 1988
82	am	30, 1988
	rs	Ord No 2, 2015
82AA	ad	Ord No 2, 2015
82AB	ad	Ord No 2, 2015
82A	ad	30, 1988
84	am	30, 1988
85	am	30, 1988; 3, 2000; Ord No 2, 2015
86	am	30, 1988; Ord No 2, 2015
88	rep	Ord No 2, 2015
89	am	Ord No 2, 2015
90	rep	Ord No 2, 2015
Division 3 of Part 5 heading	am	Ord No 2, 2015
91	rs	30, 1988
	am	Ord No 2, 2015
92	rs	30, 1988
93	rs	30, 1988
94	rs	30, 1988
95	rs	Ord No 2, 2015
96	rep	Ord No 2, 2015
97A	ad	Ord No 2, 2015
98	am	Ord No 2, 2015
99	am	30, 1988
	rep	Ord No 2, 2015
100	am	Ord No 2, 2015
101	am	30, 1988
	rep	Ord No 2, 2015
102	am	Ord No 2, 2015
106	am	3, 2000; Ord No 2, 2015
107	rep	12, 1995
	rep	3, 2000
	ad	Ord No 2, 2015
108	am	12, 1995; 2, 2012
	rs	Ord No 2, 2015

EMPLOYMENT ACT 1988

TABLE OF PROVISIONS

PART 1 — PRELIMINARY

PART 2 — EMPLOYMENT TERMS AND CONDITIONS

PART 3 — COMPENSATION FOR WORK‑RELATED ACCIDENTS, ETC

PART 4 — SAFE WORKING PRACTICES

PART 5 — REVIEW OF MATTERS RELATING TO COMPENSATION

PART 6 — MISCELLANEOUS

PART 1 — PRELIMINARY

Short title

Commencement

Interpretation

Application

Persons to whom Act applies

Persons to whom Act does not apply

Rules may prescribe application of Act

PART 2 — EMPLOYMENT TERMS AND CONDITIONS

Division 4 — General

Employment of persons under the age of 15 years

PART 3 — COMPENSATION FOR WORK‑RELATED ACCIDENTS, ETC

Interpretation

Meaning of “out of, or in the course of, employment”

Meaning of “incapacity”

Meaning of “permanent incapacity”

Meaning of “disease”

Compensation for death

Periodical compensation—loss or diminution of capacity to earn

Compensation for permanent incapacity—general

Scope of this section

Requirement to attend for assessment

Conduct of assessment

Costs of assessment

Report of assessment

Amount of lump sum compensation

Compensation for industrial deafness

Compensation for hernia

Compensation for occupational disease

Compensation for heart attack or stroke

Scope of this section

Compensation payable by public scheme employers

Compensation payable by other employers

(5) Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.

Compensation where employer not insured

Compensation where employer ceases to exist

Compensation in substitution for other claims

No contracting out

(3) A determination of the Employment Liaison Officer under this section must be provided in writing together with the reasons for his or her determination, to the employee concerned, and the employer.

Overpaid amounts

PART 4 — SAFE WORKING PRACTICES

Interpretation

Duties of employers

Safety equipment

Safety procedures

Duties of occupiers

Duties of manufacturers, etc

Duties of employees

Records and notifications, etc

Medical and first aid services

Complaints

Stop work and improvement notices

Inspectors

Codes of practice

Effect of Codes of Practice

Prosecutions

No effect on civil liability

Reports

Consultative workplace arrangements

PART 5 — REVIEW OF MATTERS RELATING TO COMPENSATION

Division 2 — Inquiry by Tribunal

Tribunal

Constitution of Tribunal

Disclosure of interest

Meetings of Tribunal

Meetings of Tribunal usually to be held in public

Application of rules of evidence, etc

Evidence

Tribunal may make orders

Compliance with orders

Dismissal of frivolous applications

Reports