1920

The first workers’ compensation statute introduced in the NT was the Workmens’ Compensation Act 1920. Before then, the Employer’s Liability Act 1884 applied. In 1985 the name of the Act was changed to the Workers’ Compensation Act.

1984

A review of the legislation in 1984 resulted in the Work Health Act 1986, which contained provisions for both work health and safety and workers’ compensation. This Act provided for a scheme which is privately underwritten, featured pension based benefits and promotes rehabilitation and an early return to work. There is no access to common law for injured workers.

2007

‘Cross border’ amendments to the Work Health Act 1986 commenced on 26 April 2007 so employers are only required to maintain a workers’ compensation policy in the NT when they employ workers with a ‘State of Connection’ to the NT. The new cross-border arrangements reduce red tape for employers and make it easier to do business by removing the need for the majority of employers to obtain multiple workers’ compensation policies for workers who are temporarily working interstate. All the other Australian states and territories have introduced cross-border provisions that allow workers to work across their borders for temporary periods, under an existing NT workers’ compensation policy.

In December 2007 the Legislative Assembly passed the Workplace Health and Safety Act and the Law Reform (Work Health) Amendment Act 2007. These Acts separated the work health and safety and rehabilitation and workers’ compensation provisions of the previous Work Health Act 1986 into the new Workplace Health and Safety Act and the Workers’ Rehabilitation and Compensation Act. The rehabilitation and workers’ compensation provisions of the Work Health Act 1986 were transferred almost unchanged into the new Workers’ Rehabilitation and Compensation Act.

2008

On 1 July 2008 the Workplace Health and Safety Act and parts of the Workers’ Rehabilitation and Compensation Act came into effect.

Prior to taking effect however, the Workplace Health and Safety Act underwent a number of amendments. The amendments made relate to 3 areas:

• prescribed volunteers are no longer eligible for compensation for life, but instead will now be eligible for compensation similar to that provided to other injured workers
• if an employer/insurer defers a decision on liability but fails to make a decision to accept or dispute liability within the prescribed timeframe (56 days), then the employer/insurer is deemed to have accepted the claim until 14 days after the day on which the employer notifies the claimant of a decision to accept or dispute liability
• parties are now required to provide all written medical reports and other specified written material relating to the disputed matters to NT WorkSafe so they can be considered by the parties and mediator prior to the mediation process. The mediation process must now be completed within 21 days instead of 28 days, and
• GIO became an approved insurer pursuant to s121(1) of the Workers’ Rehabilitation and Compensation Act on 30 June 2008, bringing the total number of approved insurers in the jurisdiction to 5.

2012

The Workers’ Rehabilitation and Compensation Legislation Amendment Bill 2011 was passed in Parliament on 28 March 2012. The amendments came into effect on 1 July 2012 and are:

• Section 3 - definition of ‘worker’ was amended to remove the reference to the Australian Business Number and to apply the ‘Results Test’ so that a person performing work for another person will be a worker unless, in relation to the work, the following tests apply:
• The person is paid to achieve a stated outcome; and
• The person has to supply the plant and equipment or tools of trade needed to carry out the work; and
• The person is, or would be, liable for the cost of rectifying any defect in the work carried out.
• The new laws also provide that a person will not be considered a ‘worker’ for workers’ compensation purposes where there is a personal services business determination in effect for the person performing the work under the Income Tax Assessment Act 1997 (Cth).
• Section 65B was amended to allow access to compensation by workers injured in Australia but who reside overseas. The change will provide for weekly payments to continue if an injured worker is living outside Australia. The key elements of the change are as follows:
  • For weekly compensation payments to continue the injured worker must, at not less than 3 month intervals, provide proof of identity and proof of ongoing incapacity.
  • The duration of compensation payments will be a maximum of 104 weeks from when the worker starts living outside Australia.
  • Flexibility will exist for applications to be made to the Work Health Court for payments beyond 104 weeks if the worker is permanently and totally incapacitated, or exceptional circumstances apply. However, any such extension by the Court must be a single period that does not exceed 104 weeks.
• Section 65 was amended to provide immediate and fairer access to compensation for older workers who are injured and to reflect the Australian Government’s decision to increase the qualifying age for the aged pension:
  • The new legislation establishes a link to the qualifying age for the age pension under the Social Security Act. This will mean that the age limit in the Workers’ Rehabilitation and Compensation Act will increase in stages between 2017 and 2023 in line with the increase in the pension age.
  • In addition, the legislation establishes a transitional benefit for workers who sustain a work injury after 1 July 2012 and who at the time of injury are 63 years of age or over. These workers will be entitled to weekly compensation for a maximum period of 104 weeks or until the worker attains 67 years of age, whichever occurs first.
  • It should be noted that workers who are older than 67 years when they are injured, will be entitled to weekly compensation for up to 26 weeks (no change from the past situation).
• Section 49 was amended to provide certainty of the types of non-cash benefits that can be considered in calculating the worker’s NWE for the purposes of payment of weekly compensation. These are limited to accommodation, meals and electricity.
• Section 89 was amended to bring the interest rate payable on late payments of weekly compensation in line with the interest rate applicable to Supreme Court judgment debts.
• Section 116 was amended to provide specific power of the Supreme Court to remit matters back to the Work Health Court in appropriate circumstances.

2015

The Workers’ Rehabilitation and Compensation Legislation Amendment Bill 2015, was tabled in February 2015, passed in March 2015 and came into effect 1 July 2015. The key amendments are:

• Legislation name change
  The name of the legislation has changed to ‘Return to Work Act’ and Regulations. The change is to reflect the primary objective of the legislation, which is to assist injured workers to return to work.
• Presumptive legislation for firefighters and volunteers
  Presumptive legislation has been introduced to make it easier for firefighters and volunteer firefighters to claim workers’ compensation if they are diagnosed with one of the 12 cancers listed in the legislation schedule. This change recognises that fire fighters are at greater risk of developing certain types of cancers as a result of exposure to hazardous substances while performing firefighting activities.
• Definition of worker
  The definition of worker was aligned with the PAYG definition used by the Australian Taxation Office (ATO). This change will make it easier for employers and workers to identify who is covered for workers’ compensation.
• Increased period of compensation for older workers
  This change recognised that Territorians are staying in the workforce beyond the pension age. The period of compensation for workers aged 67 years or older has increased from 26 weeks to 104 weeks, providing older workers with a more reasonable level of financial protection should they get injured at work.
• Five year cap on benefits for less serious injuries
  Workers who suffer a less serious injury will be limited to 5 years of compensation, with a maximum of one additional year for medical and other costs. This change does not affect workers who have suffered a more serious injury and have been evaluated as having a permanent impairment of 15% or higher. These more seriously injured workers depending on work capacity may be entitled to compensation payments until pension age.
• Increase in death and funeral benefits
  The death benefit for the dependants of a deceased worker has increased from 260 times to 364 times the average weekly earnings.
• Stroke and heart attack claims
  Compensation will not be provided for stroke or heart attacks that are not caused by work. Compensation will be paid if it is established that a person’s employment is the real, proximate or effective cause of the heart attack or stroke.
• Capping the calculation for normal weekly earnings
  During the first 26 weeks when a worker is unable to work, their compensation payments are paid at their normal weekly earnings. After 26 weeks, compensation payments are paid at 75% of their normal weekly earnings. There is now a cap on the calculation of a worker’s normal weekly earnings after 26 weeks to 250% of the average weekly earnings. This provision will only affect very high income earners, and in such cases will provide incentive, for both the worker and the employer to focus on return to work.
• Clarification on when compensation payments are reduced to 75% of normal weekly earnings
  The legislation has been amended to clarify that compensation payments to an injured worker are reduced to 75% of their normal weekly earnings after receiving a total of 26 weeks of compensation payments, rather than the period of 26 weeks from the date they were injured.

The Return to Work Legislation Amendment Bill 2015, was tabled in June 2015, passed in August 2015 and came into effect on 1 October 2015. The key amendments are:

• Payment of reasonable expenses for family counselling
  This provision relates to broader counselling and support at an early stage, including in relation to a worker’s family to assist the process of rehabilitation. The amount payable will be to a maximum of 1.5 times Average Weekly Earnings.
• Reasonable payment for medical and rehabilitation costs during deferment
  Where a decision is made to defer liability of a claim, there is a requirement on the employer to make weekly payments of compensation and, in the case of claims for mental stress, engage in rehabilitation.
  Now for all deferred claims, payments for treatment and rehabilitation during the deferral period will ensure that a worker’s recovery is not compromised by lack of treatment or rehabilitation during that period. This benefit excludes hospital inpatient and associated surgical costs as well as costs of interstate evacuations.
• Mental stress claims
  The former defence to a mental injury claim was based on reasonable administrative action and reasonable disciplinary action.
  Reasonable administrative action is now replaced with management action. Management action has been defined in the legislation and will include any communication in connection with identified actions.
• Formal notice to be provided to the worker of any pending step down or cancellation
  Formal notice is required to be provided to the worker of the pending step down (or cancellation), and the step down not to take effect until 14 days after the worker has been notified. This applies to all step downs 26 weeks, 260 weeks and 104 weeks (age).
• Payment for legal advice at mediation
  A mediator may recommend workers receive paid legal advice of and incidental to the mediation for an amount up to one times AWE. The entitlement is subject to approval by NT WorkSafe. Access to a lawyer will not be provided as a right, however the mediator can recommend to the Authority that legal advice be paid for by the employer where the mediator believes it will facilitate the mediation. Examples would be a more complex matter or where a worker is mentally impaired.
• Negotiated settlements
  There is now provision for the finalisation of the claim by the payment of a lump sum through negotiated settlement.
  The legislation requires a qualifying period of 104 weeks before a negotiated settlement. This will minimise the possibility of negotiated settlements preventing effective rehabilitation.
  Any settlement will involve mandatory independent legal advice funded by the employer (insurer).
  Financial advice funded by the employer (insurer) is to be provided on the request of the worker.
  It will not apply to claimants that are catastrophically injured and covered by the NIIS.
• Settlement of disputed claims
  There is provision to allow for the settlement of disputed claims for compensation (whether disputed on a question of fact or law or both) and settlement of contested applications to the Work Health Court.
  As with negotiated settlements, any settlement will involve mandatory independent legal advice funded by the employer (insurer) and financial advice at the request of the worker also to be funded by the employer (insurer). Any settlement within the first 104 weeks from injury will be subject to a 6 month cooling off period. In other words, the settlement is not binding until 6 months has elapsed.
• Exclusion of journey claims
  This provision excludes claims for all journeys to and from work. Journeys that are considered to be in the course of employment are not excluded. Examples are where the journey is to or from a workplace other than the worker’s normal workplace at the request of the employer or where the worker is required to work outside their normal hours of work and is paid for the time taken for the journey to or from work.
• Enforcement of compulsory insurance provisions by ability to stop work
  If an employer does not hold the necessary workers’ compensation insurance policy there is the power to order the employer to stop work until such time as the situation is rectified.
• Involvement of support persons at mediation
  Mediators will now be able to consent to a person, who is not a legal representative, to represent a claimant during the mediation.
  If the mediator considers that a claimant is not best equipped to fully present their own case and that the mediation will be best facilitated if assistance is provided by an advocate, then the mediator may consent to the claimant being represented by an advocate.
• Improving return to work outcomes
  To assist in improving return to work outcomes the legislation includes the following:
  • The employer must produce a return to work plan, developed and agreed between the employer and worker for any injury that involves incapacity of more than 28 days.
  • An employer will be unable to dismiss a worker for a period of 6 months following the date of injury unless during that period the worker ceases to be totally or partially incapacitated because of the injury.
  • This is not to apply if the employer proves the worker was dismissed on the grounds of serious and wilful misconduct.

2016

The NT adopted the recommended list from the report “Deemed Diseases in Australia” as commissioned by Safe Work Australia, effective 1 July 2016 – see Return to Work Regulations, Schedule 2.

2017

On 1 September 2017, the Northern Territory implemented the national template guide for the evaluation of permanent impairment. The NT WorkSafe Guidelines for the Evaluation of Permanent Impairment calls up AMA 5th Edition.

2018

In August 2018, NT WorkSafe varied part 1.15 of the Guidelines to acknowledge that a worker with a terminal illness from a progressive disease would not be able to fulfil the definition of maximum medical improvement and would be precluded from having a valid permanent impairment assessment. The variation provides that where an assessment for a progressive disease is conducted, the claimant will be considered to have reached maximum medical improvement based on the assessment of the person as they present on the day of the assessment, provided the disease is in the course of its natural progression and is unlikely to substantially improve in the next 12 months.

This variation to the NT WorkSafe Guidelines for the Evaluation of Permanent Impairment applies for all assessments conducted on or after 10 August 2018. 

2020

The Return to Work Legislation Amendment Act 2020, was tabled in February 2020, and came into effect 1 July 2020. The Bill reversed several changes made to the legislation in 2015 and improves the scheme’s operation. Along with administrative and technical changes, further changes included:

• Meaning of worker
  Has been expanded to clarify that a person is a worker if they are an employee for PAYG purposes even if the employer is not complying with the PAYG provisions and that an Australian Business Number is not a determinant factor in establishing whether or not a person is a worker.
  Deems that all individuals who work for a labour hire organisation are workers under the Act.
  Expands the definition so that any immediate family member who is not living with the employer will be covered for workers compensation whether named on the policy or not.
  Expands the categories of domestic workers that can be covered for workers compensation.
• Inclusion of journey claims
  Reinstates the coverage for journey claims as applicable prior to the 2015 amendments with minor amendments.
• Labour hire definitions
  Introduces definitions of ‘Labour Hire Arrangement’ and ‘Provider of labour hire services’ which are terms needed to ensure individuals under a labour hire arrangement are deemed workers.
• Normalweekly earnings
  Removal of the cap on normal weekly earnings for payments made after 26 weeks or incapacity.
• Refusal to pay for medical treatment
  Wording strengthened to ensure the employer/insurer can’t avoid liability for ‘proposed treatment’ unless they have supporting opinion.
• Recovery from worker
  New section to the Act, which sets out that if an overpayment is made under the Act, overpayments cannot be recovered from the worker to whom the overpayments were made if:
  • the benefit payable was incorrectly calculated by the employer or insurer who made the payment
  • the payment was made in respect of a period more than 6 months before the date on which recovery of the overpaid amount was sought, unless otherwise ordered by the Court.
• Attendant care services
  Moved to make relevant to all of PART 5, Division 3 of the Act.
• Return to work plans
  Amended to allow for proposal for a return to work plan to be developed by employers without the mandated use of vocational rehabilitation providers.
• Other rehabilitation
  Amended to clarify that household services include overnight childcare where the normal care provider is the injured worker who is required to be hospitalised or undergoing surgery.
• Settlements
  Introduces provision for preclusion of settlement of amounts payable to a person who has suffered a catastrophic injury. Introduces catastrophic injury criteria to align with the National Injury Insurance Scheme (NIIS).
• Lump sum agreement for particular period
  Amendment to ensure that a lump sum payable is not required to be for ‘all amounts otherwise payable’.
• Mediation – legal representation or legal advice
  Clarifies that the amount payable for legal representation and legal advice is a combined total, not a separate amount for each component.
• Nominal Insurer funding
  Moves the current methodology for contributions set out in the Act into Regulation to make it easier to amend the methodology to allow for more flexible funding arrangements for the future.
• Nominal Insurer claims management
  Amended to clarify that an uninsured employer cannot self-manage a claim from an injured worker and that the Nominal Insurer has full rights to manage the claim.
• Statement of fitness for work
  Current ‘statement of fitness for work’ is replaced by ‘medical certificate of capacity’.

Amendments of Return to Work Regulations 1986

• First-responder
  Introduction of a definition for first-responders. A first-responder is defined as ‘a person with specialised training (such as a paramedic, police officer, fire-fighter, or other emergency personnel), who attends the site of an incident and provides assistance in situations:
  • involving actual or potential injury to persons or damage to property; and
  • which may also include risk to the first-responder; and
  • where time may be of the essence to save lives and property.
• Presumptive legislation for firefighters
  Expansion of the number of diseases under the fire fighters presumptive legislation to include:
  • Asbestos related diseases
  • Skin cancer
  • Lung cancer
  • Liver cancer
• Post-traumatic stress disorder
  Schedule 2 expanded for provision that post-traumatic stress disorder (PTSD) for first responders, such as police officers, firefighters, ambulance officers or other emergency personnel be a deemed disease.
• Catastrophic injury
  Inserts new Schedule 2A providing a comprehensive criteria for prescribed injuries, including:
  • spinal cord injury
  • traumatic brain injury
  • amputation of a leg through or above the femur
  • amputation of more than one limb or parts of different limbs
  • full thickness burn to all or part of the body
  • inhalation burn resulting in permanent respiratory impairment
  • permanent blindness caused by trauma