1. law, govt and politics

1/05/2015
SA Public Sector
Return to Work Act Legislation
Dispute resolution and
independent medical advice
John Walsh
Director, DW FoxTucker
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What will you gain from
today’s session?
On completion of this workshop you will be able to:
• describe the relationship between the RTW Act 2014 and the
SAET Act 2014
• identify the differences between the new and old Acts
• identify the differences between the new and old procedure
• identify the range of reviewable decisions
• discuss implications of the new process for costs
• describe transitional provisions
• describe the role of the independent medical advisor
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Application for Expedited
Determination
• Section 114 of the Return to Work Act provides that an
application cannot be made until at least 10 days (previously
14) after the date the matter was placed before the decision
maker.
• explicit that an application can only be made if the decision
sought would constitute a reviewable decision
• otherwise remains the same
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Dispute Resolution
• Section 95 of the Return to Work Act provides:
95 – Specific Object
The vesting of jurisdiction in the Tribunal under this part is
intended to achieve an outcome in any proceedings that is
based on quick and efficient decision-making that resolves
disputes expeditiously and fairly.
Dispute Resolution
• the definition of “parties” to the proceedings is unchanged
• Section 97 of the Return to Work Act expands the range of
reviewable decisions to include:
– an interim decision to the effect that a worker will be taken to be a
seriously injured worker
– a decision not to approve services or costs incurred for medical and
like expenses
– a decision not to approve surgery or associated services where the
Corporation (Return to Work Corporation of South Australia) has
determined that it is reasonable and appropriate
– a decision as to the amount payable for economic (and non-economic)
loss
Jurisdiction
Jurisdiction is conferred on the South Australian Employment
Tribunal by Section 98 of the Return to Work Act.
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Jurisdiction
Note that S98(2) restricts the operation of S27
of the SAET Act which governs the general
nature of proceeding and makes it clear that
“the Tribunal will conduct a review of a
reviewable decision as a hearing de novo.”
Process
• Application must be lodged within one month of receipt of
the notice of the reviewable decision (Section 100)
• extension of time allowed only if:
– Good reason exists; or
– another party will not be unreasonably disadvantaged because of the
delay
• the provisions relating to reconsideration remain (Section 102
Return to Work Act)
Objectives of the Tribunal
Section 8 of the South Australian Employment Tribunal sets out
the objectives of the Tribunal and they include Section 8(c)
which provides…
”that applications are processed and resolved as quickly as
possible while achieving a just outcome, including by resolving
disputes through high quality processes and the use of mediation
and alternative dispute resolution procedures wherever
appropriate.”
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Objectives of the Tribunal
Overall the objectives closely reflect those of the
Workers Compensation Tribunal and the South
Australian Civil & Administrative Tribunal Act,
namely:
o flexibility
o procedural fairness
o accessibility
o informality
Procedures
As is currently the case:
– conducted with “the minimum of formality”
– not bound by the rules of evidence
– must act according to equity, good conscience and
the substantial merits of the case without regard
to legal technicalities and forms
– Section 32 SA Employment Tribunal Act
Employment Tribunal
The Tribunal will examine the decision by way of
rehearing and reach the correct or preferable decision
after having “regard” and putting “appropriate weight”
on the original decision (Section 27(4) SAET Act).
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Decision maker must assist
Tribunal (Section 28)
The decision maker must provide the Tribunal with:
a) a written statement of the reasons for the decision;
b) any document or thing in the decision maker's possession
or control that may be relevant to the Tribunal’s review of
the decision (within a reasonable period or time
prescribed by Regulations)
c) at any stage of proceedings for the review of a decision the
Tribunal may invite “the decision maker to reconsider the
decision and may specify a period within which the
decision maker should act” (Section 31 SAET Act)
Compulsory Conference
Before proceeding with the hearing, a compulsory
conference must be held in accordance with Section 43
of the South Australian Employment Tribunal Act and
the Tribunal must not dispense with a conference
under Section 43(3) of the SAET Act.
The conference may be adjourned or reconvened as
necessary (Section 43(6) SAET Act).
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Conference Process (1)
• Section 43 SAET Act details the conference process
and it appears, for all practical purposes, to be a
similar process to that followed at conciliation under
the current Act
• the aim is to identify and clarify the issues and
promote settlement
Conference Process (2)
• Section 37 SAET Act allows for a direction hearing at
any time in any proceedings to do whatever is
necessary, “for the speedy and fair conduct of the
proceedings” and may “give directions on its own
initiative or at the request of a party”
• if settlement is not reached, a Tribunal member must
provide an assessment of the parties’ case and
recommend ways to resolve any matter or dispute
Conference Procedure (1)
A member of the Tribunal presiding at a
compulsory conference may –
a) if that member is not a Presidential member –
refer any question of law to a Presidential
member of the Tribunal for determination
b) require a party to the proceedings to furnish
particulars of his or her case
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Conference Procedure (2)
A member of the Tribunal presiding at a
compulsory conference may –
c) determine who, apart from the parties to the
proceedings (and their representatives), may be present
at the conference
d) subject to Section 43 (15), record any settlement reached
at a conference and make any determination or order
(including an order under, or for the purposes of, a
relevant Act) necessary to give effect to a settlement
Conference Procedure (3)
A member of the Tribunal presiding at a
compulsory conference may –
e) on his or her own initiative, close the conference at any
time that, in his or her opinion, settlement cannot be
reached
f) advise the Tribunal if the conference does not reach a
settlement within a reasonable time;
g) permit a party to withdraw from the proceedings (and
make any consequential order that is appropriate in the
circumstances);
Conference Procedure (4)
A member of the Tribunal presiding at a
compulsory conference may –
h) determine a matter against any party who obstructs
or delays the conference, fails to attend the
conference, or fails to comply with a rule or order
of the Tribunal and, in so doing, make any order as
the member of the Tribunal thinks fit (including an
order as to costs)
i) do such other things as the rules of the Tribunal so
provide
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Failure to reach a settlement
If settlement is not reached, a Tribunal member must
provide an assessment of the parties’ case and
recommend ways to resolve any matter or dispute.
(Section 43(13) SAET Act)
Costs (1)
• Section 106 of the Return to Work Act governs costs
• the right to representation remains (Section 105 of
the Return to Work Act confirms that a party may be
represented by an officer or employee of an
industrial association
Costs (2)
The provisions relating to costs remain largely intact
but the Tribunal retains a discretion on costs having
regard to an assessment or recommendation made
after the conciliation conference (Section 106(3)(ii) of
the Return to Work Act).
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Costs (3)
The parties to the dispute, other than the
compensating authority, remain entitled to costs
calculated on the basis of 85% of the Supreme Court
scale.
Costs (4)
Section 107 of the Return to Work Act imposes a cost
liability on professional representatives acting for a
party to the proceedings where the representative is
shown to have caused costs –
a) “to be incurred improperly or without reasonable cause;
or
b) To be wasted by undue delay or negligence or by any
other misconduct or default”.
Costs (5)
It will be interesting to see whether there
is any interaction between Section
106(3)(ii) and Section 107(2) RTW Act
2014.
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Constitution of the
Employment Tribunal
“9 – The Members
The member of the Tribunal are –
a) The President; and
b) The Deputy President or Deputy President; and
c) The Magistrates who are designated as members of the
Tribunal under this Act; and
d) The conciliation officers.”
Constitution of the
Employment Tribunal
• the President is the Senior Judge of the Industrial
Relations Court
• Conciliation Officers eligible for appointment if:
a) A legal practitioner of five years standing; or
b) Possessing “extensive knowledge, expertise or experience”
in a relevant area.
Constitution of the
Employment Tribunal
• there is no explicit need to consult with the
Employer’s Chamber of the UTLC in the
appointment of a Conciliation Officer
• unlike the current situation, Conciliation Officers can
continue in the role after they attain the age of 65
years
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Mediation
• Section 44 of the South Australian Employment
Tribunal Act allows the Tribunal to refer a matter for
mediation “by a person specified as a mediator by
the Tribunal”
• the person specified as a mediator must be a person
who has been approved by the President of the
Tribunal to act as a mediator and the referral may be
made with or without the consent of the parties
Appeals
• Section 67 of the South Australian Employment
Tribunal Act governs the appeal process from a
decision of the Tribunal
• an appeal lies –
– on a question of law against a decision of the
Tribunal–
• constituted of a single Presidential member of the
Tribunal; or
• constituted of 2 or 3 members, including a Presidential
member (other than a Full Bench), to a Full Bench of
the Tribunal
Appeals
•
an appeal on a question of law under Section 67 will be
heard by a Full Bench of the Tribunal and if allowed the Full
Bench will endeavour to determine the matter itself and in
its discretion may hear further evidence on a question of
fact
•
a Full Bench of the Tribunal may reserve any question of law
for determination by the Full Court of the Supreme Court
(Section 70(1) South Australian Employment Tribunal Act)
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Flowchart
See Page 20 of Workbook
Transitional Provisions
Schedule 9 of the Return to Work Act deals with
procedure in relation to proceedings commenced
before appeal of the Rehabilitation and Return to Work
Act and provides that:
• existing proceedings continue under current
arrangements in the WCT
Transitional Provisions
The President of SAET “may take other steps to
ensure the smoothest possible transition from
one jurisdiction to the other in connection with
the operation of this clause (including by giving
directions as to any procedural matter which will
then have effect according to their terms)”.
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Transitional Provisions
SAET may –
a) draw any conclusions of fact from the evidence that has
been before WCT; or
b) adopt any findings or determinations of WCT; or
c) adopt any decision, direction or order of WCT; or
d) set aside any decision, direction or order of WCT, that
may be relevant to proceedings before SAET
Transitional Provisions
• WCT may be dissolved by proclamation at an
appropriate time and any Presidential member of
WCT will cease to hold office as a member of WCT
as will any conciliation officer
• a member of WCT who is a Judge of the Industrial
Relations Court of South Australia will continue as a
member of SAET under the provisions of the South
Australian Employment Tribunal Act 2014
Commentary
SAET allows for a similar process as that existent in the
WCT, but with a greater emphasis upon mediation and
alternative dispute resolution methodology. It is
conceivable that the process adopted under the SAET
may replicate, in practice, to a large extent the current
process at conciliation and judicial determination.
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Commentary
It does appear, however, that there is a desire to
depart from the usual adversarial approach to
one which is more like an investigative process
which is directed by SAET rather than the parties.
Commentary
It is theoretically possible to transfer the existent
Presidential members and Conciliation Officers of
WCT to SAET so that the workers compensation
stream of SAET would operate much as they
currently do with the same personnel.
Commentary
Equally, it is possible that the Government will
introduce new personnel (i.e. Deputy President
Calligeros and Deputy President Dolphin) and the
process will operate much as it did in an earlier
iteration when Review Officers were primary
decision makers and there was an appeal to the
Workers Compensation Appeal Tribunal.
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Commentary
• similarly, the provisions of SAET Act would allow the
workers compensation stream to operate in much the
same way as WCT operated with mediation replacing
arbitration before the concept of arbitration was
removed from the Act
• mediation is unlikely to feature greatly or at all in the
new process
• conciliation officers will have greater powers and will be
expected to use them
• presidential members will speed up the process and
make directions accordingly
Independent medical advisors (1)
• are appointed by a selection committee (Section 118
Return to Work Act)
• will deal with any medical questions referred for
enquiry and report
• the questions on referral will be framed by the
Tribunal following submissions made by the parties
Independent medical advisors (2)
• an independent medical adviser may examine the
worker and/or consult widely
• if a worker unreasonably fails to comply or
cooperate, the Tribunal may suspend
entitlements, including income maintenance
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Independent medical advisors (3)
• an independent medical adviser’s assessment is
conclusive in the case of:
a) permanent impairment;
b) nature and extent of hearing loss
• an independent medical adviser’s report is
admissible as evidence before the Tribunal
• an independent medical adviser is competent to
give evidence before the Tribunal
Final Questions?
47
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