Safety, Rehabilitation and Compensation Act 1988
Part VIII
Notice of Variation of Licence – Virgin Australia Airlines Pty Ltd (No 9 of 2024)
Background
(i) Clause 2(m) definition of ‘Risk Free Rate’ is amended to refer to an updated prudential standard;
(ii) Condition 24 is amended to update the information recording, retrieval and reporting requirements and remove the ‘Note’ below condition 24.B;
(iii) Condition 58 is amended to reflect the Deed of Cross Guarantee which the Licensee became a party to on 24 March 2021; and
(iv) Definitions used throughout the licence are amended to reflect administrative updates agreed by the Commission.
E. The variations take effect at the beginning of 30 September 2024 (Australian Eastern Standard Time).
F. The scope and conditions of the licence are as set out below.
Licence
Part 1 – Interpretation
Interpretation
Definitions
2. In this licence:
(a) APRA means the Australian Prudential Regulation Authority;
(b) Balance Date means the last day of the Financial Year immediately before the first Financial Year to which the Guarantee being obtained under condition 43 will relate;
(c) Deed of Cross Guarantee means a deed of cross guarantee entered into by (among others) the Licensee which complies with all requirements of any instrument issued under the Corporations Act 2001 (Cth);
(d) Document means document as that word is defined by section 2B of the Acts Interpretation Act 1901 (Cth);
(e) Excess Amount has the meaning as defined in condition 55;
(f) Financial Year means the financial year that applies to the licensee under the Corporations Act 2001 (Cth);
(g) Guarantee means a bank guarantee, letter of credit, unconditional payment undertaking or such other instrument issued by an entity acceptable to the Commission in accordance with this licence;
(h) Liability Report has the meaning as defined in condition 32;
(i) Licensee includes, where the context permits, the Claims Manager;
(j) Outstanding Claim Liability has the meaning as defined in the Institute of Actuaries of Australia Professional Standard 302 “Valuations of General Insurance Claims”, or any standard substituted thereof;
(k) Recommended Excess Amount has the meaning as defined in condition 34(c);
(l) Reinsurance Policy has the meaning as defined in condition 54; and
(m) Risk Free Rate means the rates to be used in discounting the expected future claims payments of insurance liabilities denominated in Australian currency as determined in accordance with APRA Prudential Standard GPS 340: Insurance Liability Valuation, or any standard or associated standard substituted thereof.
Part 2 – Grant of Licence
Eligible applicant
3. The Licensee was declared to be eligible to be granted a licence under Part VIII of the SRC Act by legislative instrument dated 29 November 2015, registered as F2015L01932 on the Federal Register of Legislation on 3 December 2015.
Licence decisions
4. The Commission, acting under sections 103 and 104 of the SRC Act, granted a licence to the Licensee on 15 September 2016 for the period commencing on 30 September 2016 and ending on 29 September 2024.
5. Following its commencement, the licence has been varied or extended by the Commission on:
(a) 14 June 2017, as notified by Notice No. 7 of 2017, in Gazette reference number C2017G00677, published on 21 June 2017;
(b) 9 December 2019, as notified by Notice No. 41 of 2019 in Gazette reference number C2019G01163, published on 19 December 2019; and
(c) 7 June 2021, as notified by Notice No. 4 of 2021 in Gazette reference number C2021G00426, published on 10 June 2021.
(d) 29 June 2021, as notified by Notice No. 40 of 2021, in Gazette reference number C2021G00500, published on 5 July 2021.
Period of licence
6. Subject to the SRC Act, this licence is for the period commencing immediately after midnight (Australian Eastern Standard Time) on 30 September 2016 and, in accordance with the most recent extension, ending at the end of 29 September 2028 (Australian Eastern Standard Time) (Licence Period).
Part 3 – Scope of Licence
Scope of licence – acceptance of liability
7. The Licensee is authorised to accept liability to pay compensation and other amounts under the SRC Act in respect of all injuries, loss or damage suffered by, or in respect of the death of, any of the employees of the Licensee where such injuries, loss, damage or death occur within the licence period.
Scope of licence – management of claims
8. QBE Insurance (Australia) Limited, ABN 78 003 191 035 (Claims Manager) is authorised to manage, on behalf of the Licensee, claims under the SRC Act made by the employees of the Licensee who are covered by the scope of this licence so far as it relates to the Licensee’s acceptance of liability in accordance with clause 7 of this licence.
Part 4 – Conditions of licence
Conditions of licence
9. The licence is granted subject to the following conditions.
General conditions
Communication
10. The Licensee, when bringing employees under its self-insurance licence pursuant to any consolidation or amalgamation process, must provide information to those employees regarding the SRC Act prior to those employees becoming employees of the Licensee.
11. The Licensee must provide information regarding the operation of the SRC Act to all new employees as part of the licensee’s employee induction process.
Directions of Commission
12. The Licensee must comply with any written directions, whether general or in respect of a particular matter or class of matters, given by the Commission generally, or to the Licensee directly, with respect to the performance by the Licensee of its functions or the exercise of its powers under the SRC Act.
Requirements
13. The Licensee must comply with the requirements of:
(a) the SRC Act, its Regulations and any applicable guidelines issued by the Commission under section 73A of the SRC Act;
(b) any applicable laws of the Commonwealth, States or Territories with respect to the safety, health and rehabilitation of employees, with a particular focus on the statutory requirements for genuine consultation with employees and their representatives; and
(c) the relevant Privacy legislation.
14. The Licensee must have regard to guidelines issued by the Information Commissioner under the Privacy Act 1988 (Cth) and must comply with any such guidelines dealing with covert surveillance of employees.
Fees
15. The Licensee must pay the licence fee notified in writing to the Licensee under section 104A of the SRC Act within one month of receiving the notification.
16. On written request from the Commission, the licensee must pay other fees relating to the Licensee’s operations under the SRC Act, in the amount and within the timeframe, specified by the Commission.
Manner of managing claims
17. In managing claims, the Licensee:
(a) must be guided by equity, good conscience and the substantial merits of the case without regard to technicalities;
(b) is not required to conduct a hearing; and
(c) is not bound by the rules of evidence.
Management systems
18. The Licensee must co-operate with, and give reasonable assistance to, the Commission or its representatives in respect of any targeted reviews and evaluations of the Licensee to be conducted by the Commission or its representatives.
19. The Licensee must report to the Commission as required in accordance with the Performance Standards and Measures to demonstrate that it has maintained its Claims Management, Rehabilitation and WHS management systems, as advised to Comcare.
Reviews and proceedings
20. The Licensee must inform Comcare as soon as practicable of any court or tribunal proceedings in relation to a matter arising in respect of a claim managed by the Licensee under the SRC Act.
21. The Licensee must give to Comcare, within the timeframe specified in the request, any information or documents that Comcare requests in respect of any court or tribunal proceedings in relation to a matter arising in respect of a claim managed by the Licensee under the SRC Act.
22. The Licensee must not cause, or permit to be made on its behalf to a court or tribunal any submission that Comcare or the Commission requests the Licensee not to make.
Failure to comply with conditions or change in circumstances
23. The Licensee must notify Comcare in writing as soon as practicable of any event or likely event that is relevant to the application of the SRC Act to the Licensee, this may include but is not limited to:
(a) the Licensee has not complied with, or is likely to fail to comply with, a condition of this licence; or
(b) any change that may impact on the Licensee’s capacity to meet its liabilities under the SRC Act, including change to the Licensee’s underlying financial position; or
(c) changes to its legal structure, ownership or control; or
(d) any significant change in its employee numbers or significant change in the risk profile of the work undertaken by its employees.
Information recording, retrieval and reporting requirements
24. The Licensee must keep all material brought into existence in connection with the Licensee’s operations under this Licence and the SRC Act, including but not limited to, all files, correspondence, data manuals, policies, records, reports, opinions, audits, receipts and other information identified by the Commission from time to time as relevant to the operation of the Licence.
24.A This information may be requested in writing by the Commission with at least 14 days’ notice.
24.B The Licensee is to ensure the information is maintained in a form accessible by the Commission or Comcare for a period of at least seven years.
Claims Manager
25. The Licensee is authorised to manage claims and is responsible for ensuring the Claims Manager complies with the relevant conditions of this licence.
26. The Licensee must enter into and maintain a written contract with the Claims Manager and give a copy of the contract to the Commission if requested.
27. The Licensee must ensure that each of the obligations imposed by this licence on the Claims Manager are included in the contract between the Licensee and the Claims Manager and that the Claims Manager warrants, under the contract, to comply with the conditions imposed by this licence.
28. In addition to other conditions in this licence which are applicable to the Claims Manager, the Claims Manager must:
(a) not do, or omit to do, anything which would put the Licensee in breach of any term or condition of this licence;
(b) not undertake, or cause to be undertaken, any surveillance of an employee, unless it has the prior written approval of the Licensee;
(c) implement appropriate structures and mechanisms to ensure the consistent application of policy and procedures in respect of the management of claims;
(d) when requested in writing by the Commission to provide information to it, to provide the information to the Commission in the timeframe specified in the request;
(e) provide the Commission or its representative with unrestricted access to documents and records in the possession or control of the Claims Manager in so far as the documents relate to matters arising under the SRC Act; and
(f) inform the Licensee as soon as practicable after it becomes aware that the Claims Manager has done or omitted to do something which has the effect that the Licensee is, or is likely to be, in breach of a term or condition of this licence.
29. The Licensee must be accountable for all claims management policies issued by the Claims Manager and the recording and forwarding of claims management data to Comcare as requested.
30. The Licensee must notify the Commission in writing as soon as practicable after it becomes aware that the Claims Manager has done, or omitted to do, something which has the effect that the Licensee is, or is likely to be, in breach of a term or condition of this licence.
Performance conditions
31. The Licensee must comply with the Performance Standards and Measures approved by the Commission from time to time.
Prudential conditions
Liability report
32. The Licensee must commission a written report (Liability Report) in respect of each Financial Year and calculated as at the end of that Financial Year.
33. The Liability Report must:
(a) be prepared by a Fellow of the Institute of Actuaries of Australia (IAA), or any body substituted thereof, with at least five years’ post-qualification experience as an actuary in general insurance;
(b) be prepared by an actuary who is not an employee or a partner of the organisation which provides financial audit services to the Licensee or who in any way has a material financial dependence on the auditor;
(c) be prepared drawing on any available expert advice and substantially using IAA Professional Standard 302 “Valuations of General Insurance Claims”, or any standard substituted thereof, as the basis of estimation, with any departure from this standard to be highlighted in the report;
(d) be prepared using the Risk Free Rate in discounting the expected future claims payments of insurance liabilities;
(e) be addressed by the actuary to the Commission; and
(f) be provided by the Licensee to the Commission within 131 days of the end of the Financial Year to which it relates.
Note: If the actuary determines the Risk Free Rate using instruments other than Commonwealth Government Securities that relate to the term of the future claim liability cash flows of the Licensee, the actuary must justify the reason for doing so in the Liability Report.
34. The Liability Report must:
(a) estimate the Outstanding Claim Liability of the Licensee to pay compensation and other amounts under the SRC Act in accordance with the scope of this licence as follows:
(i) contain a recommendation for the level of provisions in the Licensee’s accounts which must be made to at least the net unbiased estimate of the mean (statistical expectation) of the Outstanding Claim Liability; and
(ii) contain a valuation of current Outstanding Claim Liability and the projected Outstanding Claim Liability in 12/18/24* months’ time;
*Note: 12 months for Licensees in the 6th or more year of licence; 18 months for Licensees in the 4th-5th year of licence; 24 months for Licensees in the 1st-3rd year of licence.
(b) contain a breakdown of the current and non-current liability components of the Licensee’s Outstanding Claim Liability as estimated in accordance with condition 34(a);
(c) contain a recommendation of the maximum reinsurance policy retention amount (Recommended Excess Amount) referred to in the Reinsurance conditions;
(d) make an assessment of the financial capacity of the Licensee to meet amounts, from the balance sheet, up to the Recommended Excess Amount;
(e) describe the arrangements for compliance with the Reinsurance conditions and provide an assessment by the actuary of whether the arrangements are appropriate to meet the Licensee’s obligation under condition 54; and
(f) contain the calculations used to determine the required amount of the Guarantee pursuant to conditions 49 and 50.
35. The Commission may at its discretion submit a Liability Report to a peer review process.
36. After receiving a peer review assessment of a Liability Report, the Commission may by written notice to the Licensee require a Second Liability Report by an actuary approved by the Commission.
37. If any of the changes in circumstances outlined in condition 23(b), (c) or (d) occur, the Commission may, by written notice to the Licensee, require the Licensee to obtain an Updated Liability Report that is to be prepared in accordance with conditions 32 to 34.
38. The Commission may direct the date for provision of a Second Liability Report and/or an Updated Liability Report.
39. Unless the Commission directs otherwise, the Licensee must pay for a Second Liability Report and/or an Updated Liability Report.
40. If the Commission receives a Second Liability Report or an Updated Liability Report, it (or, where the Commission receives both a Second Liability Report and an Updated Liability Report, the most recent of these reports) replaces the original Liability Report and:
(a) references in this licence to the Liability Report are to be construed as references to the Second Liability Report or the Updated Liability Report (whichever is applicable); and
(b) references in this licence to the actuary who prepares the Liability Report are to be construed as references to the actuary who prepares the Second Liability Report or the Updated Liability Report (whichever is applicable).
Yearly Accounts
41. The Licensee must:
(a) lodge with the Commission a copy of:
(i) any report that it is required to prepare or obtain for a Financial Year under Division 1 of Part 2M.3 of the Corporations Act 2001 (Cth) within 131 days of the end of that Financial Year;
(ii) any periodic financial information regarding the affairs of the Licensee for a Financial Year that it is required to give to any financial market as defined in the Corporations Act 2001 (Cth) (for example, in respect of the Australian Stock Exchange this would be information that must be given under Listing Rule 4.3B) within 131 days of the end of that Financial Year. For the avoidance of doubt this condition does not require the Licensee to provide information that is released to the financial market pursuant to the Licensee's continuous disclosure obligations;
(iii) if the Licensee is not required to report in accordance with Division 1 of Part 2M.3 of the Corporations Act 2001 (Cth) because its parent company is required to report in accordance with Division 1 of Part 2M.3 of the Corporations Act 2001 (Cth), then the Licensee must provide any report that the parent company is required to prepare or obtain for a Financial Year under Division 1 of Part 2M.3 of the Corporations Act 2001 (Cth) within 131 days of the end of that Financial Year;
(iv) if the Licensee (or its parent company) is not required to report in accordance with Division 1 of Part 2M.3 of the Corporations Act 2001 (Cth) and the parent company is a company not subject to the laws of Australia then the Licensee’s parent company must prepare a financial report and directors’ report as if it was required to comply with Division 1 of Part 2M.3 of the Corporations Act 2001 (Cth), including having that report audited in accordance with that Part, and must give the report to the Commission within 131 days of the end of the Financial Year; and
(b) include, and identify, in any report or information referred to in condition 41(a), provision for meeting the Licensee’s Outstanding Claim Liability (current and non-current) under the SRC Act in accordance with the scope of this licence as at the end of the Financial Year to which the report or information relates.
42. The Licensee must ensure that:
(a) the provision mentioned in condition 41(b) is consistent with the written evaluation in the Liability Report of the Licensee’s Outstanding Claim Liability (current and non-current) for the Financial Year; and
(b) any apparent discrepancies in the provision mentioned in condition 41(b) and the written evaluation in the Liability Report of the Licensee’s Outstanding Claim Liability (current and non-current) for the Financial Year are explained in the notes section of the financial report or information in which the provision mentioned in condition 41(b) is included and identified.
Guarantee
(a) the Commission determines that the Licensee is currently a low-risk licensee;
(b) the current required Guarantee amount for the Licensee (as calculated under conditions 49 and 50) is less than $300,000*; and
(c) Virgin Australia Holdings Limited (formerly known as Virgin Blue Holdings Limited), ACN 100 686 226, has an issuer credit rating of or equivalent to a Standard and Poor’s AA- or better.
* Note: The $300,000 value is subject to indexation (based on CPI) annually.
44. Subject to the exceptions in conditions 45 and 46, if the Licensee is required to obtain a Guarantee under condition 43 it must obtain a new Guarantee under that condition each Financial Year.
45. If the Commission determines that the Licensee is a low-risk licensee for a Financial Year, the Licensee is not required to obtain a new Guarantee under condition 43 that Financial Year unless:
(a) the required Guarantee amount for the Licensee for that Financial Year (as calculated under conditions 49 and 50) increases by $500,000* or more from the required Guarantee amount for the Licensee for the Financial Year in which it obtained its existing Guarantee under condition 43 (as calculated under conditions 49 and 50); or
(b) 5 years have elapsed since the Licensee last obtained a new Guarantee under condition 43.
* Note: The $500,000 value is subject to indexation (based on CPI) annually.
46. The Licensee is not required to obtain a new Guarantee under condition 43 for a Financial Year if the required Guarantee amount for the Licensee for that Financial Year (as calculated under conditions 49 and 50) is less than or equal to the Guarantee amount of the Licensee’s existing Guarantee under condition 43.
47. The Guarantee obtained under condition 43 must be:
(a) in the form and subject to the terms agreed in writing by the Commission; and
(b) for an amount calculated by the actuary in accordance with the Guarantee conditions (conditions 43 to 53 inclusive) and specified in the Liability Report for that Financial Year; and
(c) obtained from a corporation that is authorised by APRA to carry on:
(i) banking business in Australia under the Banking Act 1959 (Cth) and has an issuer credit rating of or equivalent to a Standard and Poor’s AA- or better; or
(ii) insurance business in Australia under the Insurance Act 1973 (Cth) and has an issuer credit rating of or equivalent to a Standard and Poor’s AA- or better and a financial strength rating of or equivalent to a Standard and Poor’s AA- or better.
48. The Licensee must provide the original of the Guarantee to the Commission within 170 days of the start of the first Financial Year to which the Guarantee relates.
49. The Guarantee must be for an amount calculated by the actuary as the greater of:
(a) the 95th percentile of the Licensee’s Outstanding Claim Liability under the SRC Act in accordance with the scope of this licence at the Balance Date and the addition of the Excess Amount; or
(b) the 95th percentile of the Licensee’s projected Outstanding Claim Liability under the SRC Act in accordance with the scope of this licence in 12/18/24 months* time from the Balance Date and the addition of the Excess Amount.
*Note: 12 months for Licensees in the 6th or more year of licence; 18 months for Licensees in the 4th-5th year of licence; 24 months for Licensees in the 1st-3rd year of licence.
Note: The liability calculations under condition 49 are to include an allowance for the cost of administering claims under this licence and be calculated net of reinsurance recoveries.
50. In calculating the amount of the Guarantee, the Licensee must direct the actuary to:
(a) calculate existing and projected estimates of the Licensee’s Outstanding Claim Liability under the SRC Act in accordance with the scope of this licence to the 95th percentile and to include this result in the Liability Report; and
(b) base the calculation on a full statistical analysis of data, trends and variability and according to any relevant IAA standards and guidelines on liability valuation for general insurance.
51. If the Licensee obtained a Guarantee under condition 43, the Licensee may at any time provide to the Commission a new Guarantee obtained under condition 43 that, if prepared in accordance with conditions 47, 49 and 50, will replace the existing Guarantee obtained under condition 43.
52. If the Commission identifies a financial risk with respect to the suitability of the financial institution from which the Licensee has obtained its current Guarantee under condition 43 and requests, after consulting with the Licensee, that the Licensee obtain a new Guarantee under condition 43, the Licensee must:
(a) comply with this request within 3 months or, if applicable, an alternative timeframe specified in the request; and
(b) ensure that the new Guarantee is prepared in accordance with conditions 47, 49 and 50.
53. If the guarantor under a Guarantee obtained by the Licensee under condition 43 discharges its financial obligation under that Guarantee by making payment to Comcare of its total liability or amounts which when aggregated equal its total liability, Comcare must return that Guarantee to the guarantor.
Reinsurance
54. The Licensee must maintain an appropriate level of reinsurance to limit its liability to pay compensation and other amounts under the SRC Act in accordance with the scope of this licence from an insurance company that is authorised by APRA to carry on insurance business under the Insurance Act 1973 (Cth) (Reinsurance Policy).
55. The excess of loss amount applicable under the Reinsurance Policy for any single event (Excess Amount) must not, unless the Commission directs otherwise, be higher than the Recommended Excess Amount.
56. The Licensee must:
(a) if an amended reinsurance policy or a reinsurance policy from a new provider is obtained under condition 54, provide a copy of that reinsurance policy to the actuary and the Commission within 130 days of the start of the first Financial Year to which that reinsurance policy relates;
(b) provide a copy of the current certificate of currency for the Reinsurance Policy to the Commission within 130 days of the start of the first Financial Year to which the certificate of currency relates;
(c) notify the Commission of any increases to the Excess Amount in the Reinsurance Policy; and
(d) only obtain a reinsurance policy under condition 54 with an excess of loss amount that exceeds the Recommended Excess Amount if the Commission provides prior approval.
Deed of Cross Guarantee
57. The Licensee:
(a) must at all times be a party to the Deed of Cross Guarantee in accordance with conditions 57 to 59 of this licence; and
(b) must not engage in any act or omission that may compromise the enforceability of the Deed of Cross Guarantee.
58. In this licence a reference to the Deed of Cross Guarantee is a reference to:
(a) the Deed of Cross Guarantee, made on 24 March 2021, as amended or varied from time to time in accordance with its terms, to which the following were parties at the date of execution:
(i) Virgin Australia Holdings Limited (formerly known as Virgin Blue Holdings Limited), ACN 100 686 226;
(ii) Virgin Australia Airlines Holdings Pty Ltd (formerly known as Virgin Australia Holdings Pty Limited), ACN 093 924 675;
(iii) Virgin Australia Airlines Pty Ltd (formerly known as Virgin Blue Airlines Pty Limited), ACN 090 670 965;
(iv) Virgin Tech Pty Ltd, ACN 101 808 879;
(v) VB Leaseco Pty Ltd, ACN 134 268 741
(vi) ULCC Air Pty Ltd, ACN 124 369 008
(vii) Virgin Australia Cargo Pty Ltd, ACN 600 667 838
(viii) VAH Newco No. 1 Pty Ltd, ACN 160 881 345
(ix) VBNC5 Pty Ltd, ACN 119 691 502
(x) VB PDP 2010-11 Pty Ltd, ACN 140 818 266
(xi) BC Hart Company Pty Ltd, ACN 645 265 514
(xii) Virgin Australia International Operations Pty Ltd, ACN 155 859 608
(xiii) TA Holdco (Singapore) Pte. Ltd., SG Co. 201435309R
(b) where the Commission, in its absolute discretion, notifies the Licensee in writing that another, alternative, Deed of Guarantee will satisfy the requirements of conditions 57 – 59 of this licence, that Deed.
59. In relation to the Deed of Cross Guarantee referred to in condition 57 above the Licensee must:
(a) be a party to that Deed for at least seven (7) years following the end of the licence period, as varied from time to time;
(b) if that Deed is amended or varied, including if:
(i) another entity becomes a party to that Deed; or
(ii) a party to that Deed ceases to be a party,
provide a copy of the document amending or varying that Deed to the Commission within 30 days of the amendment or variation; and
(c) notify the Commission within 7 days if:
(i) the Australian Securities and Investments Commission informally or formally raises any issues in relation to that Deed; or
(ii) the Licensee becomes aware of any reason why a creditor of the Licensee may not be able to enforce that Deed.
Dated the 18th day of June 2024
David Oliver
Chairperson
Safety, Rehabilitation and Compensation Commission
[1] For the purposes of this licence, the definition of claim prescribed by section 99 of the SRC Act applies.