What constitutes suitable duties

Any time limits on the provision of suitable employment?

Does the employer have an obligation to hold the injured worker’s former position open? For how long?

Exemptions

Requirement for the employer to notify the authority before dismissing the injured worker?

New South Wales

Employers with workers who have been injured are required to provide the worker with the opportunity to recover at work by providing Suitable Work. Suitable work needs to be provided when a worker is unable to immediately return to their normal duties after a work-related injury or illness

The requirements of Chapter 3 of the 1998 Act (Workplace Injury Management) apply even when there is a dispute as to liability, s41A.

Employers are required to provide suitable work as long as it is reasonably practicable to do so.

An employer is unable to dismiss a worker because the worker is not fit for employment because of the workplace injury, within the first six months of a worker becoming unfit S248  Workers Compensation Act 1987

If a worker is dismissed and is replaced the employer is required to inform the new worker that the dismissed worker may be entitled to be reinstated within

two years after dismissal. s247

Workers Compensation Act 1987

Yes

– s248(3) of the 1987 Act

The employer is not obligated to notify the authority before dismissing a worker. The employer cannot dismiss a worker within six months of becoming unfit for employment. S248  Workers Compensation Act 1987  

Victoria

• Suitable employment means work that is suited to the worker’s current abilities taking into account their capacity for work and, amongst other things, their medical condition, age, skills, work experience, place of residence and pre-injury employment.
• Pre-injury employment means employment that is the same as, or equivalent to, the job that a worker was employed in before they sustained their injury or illness (see definitions in s3 and s96, Workplace Injury Rehabilitation and Compensation Act 2013).

52 weeks of the worker’s incapacity

52 weeks of the worker’s incapacity. For the duration of the employment obligation period the employer has to provide suitable employment if the worker has a current work capacity and pre-injury if the worker no longer has an incapacity for work.

Yes

– s101 of the Workplace Injury Rehabilitation and Compensation Act 2013

No

Queensland

Workers’ Compensation and Rehabilitation Act 2003 s42 — Suitable duties are work duties for which the worker is suited, having regard to:

1. nature of the worker’s incapacity and pre-injury employment
2. relevant medical information
3. rehabilitation and return to work plan for the worker provisions of the employer’s workplace rehabilitation policy and procedures
4. worker’s age, education, skills and work experience;
5. if duties are available at a location other than the location in which the worker was injured — whether it is reasonable to expect the worker to attend the other location, and
6. any other relevant matters.

No

• The employer has an obligation to provide rehabilitation, which includes suitable duties, while the worker is receiving workers’ compensation — Act s228
• Weekly payments stop when the worker’s incapacity stops, or after the worker has received compensation for 5 years, or when the maximum compensation payment is reached — Act s144).

Yes

The employer must hold the worker’s former position open for 12 months (the employer must not dismiss the worker solely or mainly because the worker is not fit for employment in a position because of the injury within 12 months of the worker sustaining the injury) — Act s232B.

No

No

Western Australia

• Employer required to provide pre-injury position to injured worker if worker attains total or partial capacity within 12 months. If that job is no longer available, or worker can no longer perform, employer must offer a similar position for which worker is qualified, and capable of doing — s84AA(1) Workers’ Compensation and Injury Management Act 1981
• Employers are required to notify worker and WorkCover WA of any intention to dismiss the worker 28 days before the dismissal is due to take place — s84AB.

Previous position offered if reasonably practicable to do so.

Yes

12 months

Yes, If the employer proves that the worker was dismissed on the grounds of serious or wilful misconduct — s84AA(2)

Yes

s84AB

South Australia

Suitable employment is defined in s4 of the Return to Work Act 2014 as follows:

In relation to a worker, means employment in work for which the worker is currently suited, whether or not the work is available, having regard to the following:

1. the nature of the worker’s incapacity and previous employment,
2. the worker’s age, education, skills and work experience,
3. the worker’s place of residence,
4. medical information relating to the worker that is reasonably available, including in any medical certificate or report,
5. if any recovery/return to work services are being provided to or for the worker, and
6. the worker’s recovery/return to work plan, if any.

No

No, however, under section 18 an employer must provide suitable employment for the worker (the employment being employment for which the worker is fit and, subject to that qualification and this section, so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was working immediately before the incapacity).

The requirement to provide suitable employment does not apply in the following circumstances:

1. it is not reasonably practicable to provide employment (with the onus of establishing that on the employer); or
2. the worker left the employment of that employer before the commencement of the incapacity for work; or
3. the worker terminated the employment after the commencement of the incapacity for work; or
4. new or other employment options have been agreed between the worker, the employer and the Corporation under section 25(10); or
5. the worker has otherwise returned to work with the pre-injury employer or another employer. — s18(2).

• Pursuant to section 20(1) the employer must provide 28 days notice to the Corporation.
• Notice to the Corporation is not required if termination has occurred on grounds of serious and wilful misconduct or the worker is not participating in a recover/return to work plan, nor receiving compensation for the work injury or the worker’s rights to compensation for the injury have been exhausted or the time for making a claim for compensation has expired.

Tasmania

Suitable alternative duties, in relation to a worker, are those duties for which the worker is suited, having regard to the following:

1. nature of the worker’s incapacity and pre-injury employment;
2. worker’s age, education, skills and work experience;
3. worker’s place of residence;
4. any suitable duties for which worker has received rehabilitation training;
5. and any other relevant circumstances.

Suitable alternative duties specifically exclude:

1. duties that are merely of a token nature or do not involve useful work having regard to the employer’s trade or business; or
2. duties that are demeaning in nature having regard to (1) and (2) above and to the worker’s other employment prospects — s143M(5)).

No

Yes

For a period of 12 months commencing on the day on which the worker becomes totally or partially incapacitated by a workplace injury. — s143L(1).

Yes

The employer does not have to hold the worker’s position open if: there is medical evidence indicating that it is highly improbable that the worker will be able to perform the employment in respect of which the worker was engaged immediately before becoming incapacitated; or the work for which the worker was employed is no longer required to be performed — s143L(2).

No

Northern Territory

s75A(6) Return to Work Act 1986 — Employment is suitable for a worker if it requires the worker to perform work for which the worker is fit as specified in the worker's statement of fitness for work, taking the following matters into account:

1. his or her age
2. his or her experience, training and other existing skills
3. his or her potential for rehabilitation training
4. his or her language skills
5. the impairments suffered by the worker; and
6. the provision of suitable employment includes the referral of the worker to the alternative employer incentive scheme developed by the Authority if the employer does not have other suitable employment available.

No

No

But must not dismiss worker, if incapacitated, for six months after the injury — s65C

Yes

If employer can show worker was dismissed on grounds of serious misconduct — s65C(3)

No

Australian Capital Territory

Suitable duties are not defined

s105 Workers Compensation Act 1951 — within 6 months after the day the worker became entitled to weekly compensation

The employer has an obligation to provide duties for up to 6 months (s105 Workers’ Compensation Act 1951)

The employer does not have an obligation to provide duties if — s106(4) Workers’ Compensation Act 1951:

• worker leaves voluntarily after the injury
• employer ends worker’s employment after the injury for a reason other than because the worker was not fit for employment because of the injury
• the employer is a non business employer, and
• the employer cannot provide suitable employment.

Insurer must notify Minister prior to ceasing compensation payment for non-compliance with personal injury plan (s113 Workers’ Compensation Act 1951). Employer should notify insurer prior to dismissing worker. Employers can be penalised for failure to provide suitable employment (s106 Workers’ Compensation Act 1951).

C’wealth Comcare

Suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under s4 of the SRC Act, means:

a) in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed — employment by the Commonwealth or the licensed corporation, in work for which the employee is suited having regard to:

(i) the employee’s age, experience, training, language and other skills

(ii) the employee’s suitability for rehabilitation or vocational retraining

(iii) whether it is reasonable to expect the employee to change his or her place of residence, and

(iv) any other relevant matter.

b) in any other case — any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i-iv).

Under s40(1) — Where an employee is undertaking, or has completed, a rehabilitation program, the relevant employer shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment.

Not specified

Not specified

Not specified

No requirements

C’wealth Seacare

Suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this — s3 of the Seafarers Rehabilitation and Compensation Act 1992, means any employment (including self employment) for which the employee is suited having regard to:

1. the employee’s age, experience, training, language and other skills; and
2. the employee’s suitability for rehabilitation or vocational retraining; and
3. if the employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
4. any other relevant matter.
5. Under s52 — If an employee is undertaking, or has completed, a rehabilitation program, his or her employer must take all reasonable steps to provide the employee with suitable employment, or to assist the employee to find such employment.

Not specified

Not specified

No

No

C’wealth DVA

Military Rehabilitation and Compensation Act 2004 (MRCA) s5 — Work for which the person is suited having regard to the following:

1. the person’s age, experience, training, language and other skills,
2. the person’s suitability for rehabilitation or vocational retraining,
3. if work is available in a place that would require the person to change his or her place of residence — whether it is reasonable to expect the person to change his or her place of residence, and
4. any other relevant matter.

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) s4 — Suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:

1. in the case of an employee who was a permanent employee of the Commonwealth on the day on which he or she was injured and who continues to be so employed — employment by the Commonwealth in work for which the employee is suited having regard to:
   1. the employee’s age, experience, training, language and other skills;
   2. the employee’s suitability for rehabilitation or vocational retraining;
   3. where employment is available in a place that would require the employee to change his or her place or residence — whether it is reasonable to expect the employee to change his or her place of residence; and
   4. any other relevant matter; and
2. in any other case — any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).

No

No

No

No

New Zealand

Providing the injured employee with a working environment in which they can perform duties that will not further injure or prohibit recovery of the original injury.

Must be in agreement with the employee, work as a partnership toward full return to work

No requirements for an employer to keep a position open for an injured worker

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