Public consultation - independent review of the Safety, Rehabilitation & Compensation Act 1988

20 December 2024

Safety, Rehabilitation and Compensation Act Review Secretariat
Workers’ Compensation Review
Workers’ Compensation Policy Branch
Safety and Industry Policy Division
Department of Employment and Workplace Relations

By electronic submission

Dear Secretariat,

Safety, Rehabilitation and Compensation Act Review

John Holland Group Pty Ltd, John Holland Pty Ltd and John Holland Rail Pty Ltd (John Holland) are self- insured licensees under the Safety Rehabilitation and Compensation Act 1988 (SRC Act) with licences which commenced on 1 January 2007.
We appreciate the initiative to undertake a comprehensive review of the SRC Act and the commitment of resources to appoint a panel to lead the review, engage with experts and consult with stakeholders.
We are keen to contribute to reforming and modernising the legislative framework and building a leading scheme which adapts to workplace and community changes, promotes inclusivity, supports diverse needs of employees, and prioritises optimal outcomes for employees affected by workplace injury or illness.
Please find attached comments in response to the public consultation issues paper prepared by the panel,
‘Getting the best outcomes for injured workers’.
We would welcome the opportunity to review any detailed proposed reforms and further contribute to the review.

Yours faithfully

Tamara Cracknell
General Manager, Insurance

Encl.

johnholland.com.au | John Holland Group Pty Ltd | ABN 37 050 242 147 | Level 9, 180 Flinders Street, Melbourne VIC 3000, Australia
Best practice workers’ compensation – discussion questions
1 What are the primary objectives of a workers’ compensation scheme? Should those objectives be
expressly stated in the Act?

A workers’ compensation scheme should promote the prevention of work-related injury and disease
and reduce the incidence of accidents and diseases in the workplace. It should also support injured
employees with recovery and return to work through occupational rehabilitation, suitable
employment and compensation. The scheme should provide for effective and expeditious payment
of fair and appropriate compensation and be adaptable and financially sustainable.
Although the SRC Act does not currently include the objectives of the scheme, there are examples
in other jurisdictions where the objects are expressly stated in the legislation (eg. Victoria). Including
the objectives in the legislation would provide clarity and help guide the design and operation of the
scheme.

2 What are best practice design principles for a workers’ compensation scheme? For example, can
you provide examples (from other schemes) of best practice approaches to early intervention,
rehabilitation (including supporting employees with psychological injuries), vocational support and
return to work?

A best practice workers’ compensation scheme focuses on proactive identification and management
of workplace injury and disease with a biopsychosocial approach to recovery. Designing a workers’
compensation scheme should be evidence-based and risk-based and supported by actuarial
analysis and evaluation of other schemes. The design and operation of early intervention,
rehabilitation, vocational support, return to work processes should encourage and incentivise early
support and return to safe work, given the health benefits of work and the potential negative impact
of compensation on injury recovery. These processes should be flexible enough to be adaptable
and allow employers to tailor programs to their particular workplaces and workforce. Avoiding being
overly prescriptive also creates a system which is adaptable and focused on people and improving
outcomes, rather than administration.

3 Describe the areas of the scheme needing reform to help workers understand and access their
entitlements. What changes are needed to enable workers better to navigate the legislative
framework?

Reforming the legislative scheme by simplifying and streamlining processes, simplifying language
and concepts, improving consistency and interaction with other jurisdictions and reducing
administrative burden, would help employees to better understand and access their entitlements
and navigate the scheme. It would also do this by helping employers focus on providing timely and
effective support and benefits to employees. For instance, the incapacity provisions could be
simplified with more straightforward calculations that better reflect modern work arrangements and
an employee’s circumstances (eg. pay cycle, roster). The permanent impairment provisions could
also be simplified with more straightforward calculations, including to address the complexity where
there are multiple separate injuries arising from the one incident.
Streamlining the legislative framework and reducing the technical and administrative burden on
employees and employers would help employees access support, understand their entitlements,
and focus on recovery, while enabling employers to provide that support more effectively.

Workforce challenges – discussion questions
4 What changes are required to address workforce challenges (current and emerging: see ‘Issues to
be considered’ above) to maintain an effective and sustainable Comcare scheme?

Since the SRC Act was introduced, working arrangements, practices, and the workforce have
changed significantly. This affects both Australian government and self-insured licensees, so a
review to modernise the existing framework is beneficial. We have employees working across a
broad range of disciplines, industries and locations, with ‘white-collar’ and ‘blue-collar’ employees
working anywhere from an office to a remote worksite, with others being mobile on any given day.

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An example of where reform could allow the scheme to better reflect and adapt to modern and
changing work arrangements is the incapacity provisions. Simpler calculations which accommodate
and better reflect different earning arrangements (eg. variations in overtime, rosters or pay cycles
which are not ‘weekly’) would be easier for employees to understand and employers to administer.

5 What changes are required to the Comcare scheme to better accommodate remote work and
working outside ‘traditional’ work hours?

The Comcare scheme should remain flexible to adapt to different work arrangements and
circumstances. In relation to working outside ‘traditional’ work hours, the incapacity provisions could
better accommodate and reflect different earning arrangements associated with these ‘non-
traditional’ work schedules (e.g. variations in overtime, rosters or pay cycles which are not ‘weekly’).
Working in remote locations has additional challenges, including access to medical treatment and
support. The SRC Act allows compensation for treatment and travel expenses under s 16, based on
what is deemed ‘reasonable in the circumstances’ by the determining authority.
Considering 'reasonableness' and an employee's circumstances when assessing medical treatment
compensation and travel reimbursement can help remove barriers to accessing treatment where it
may be more costly and hard-to-reach in remote areas. Any reform affecting the reimbursement of
medical expenses would need to consider these issues.

6 What changes are required to the Comcare scheme to better manage complex psychological
claims?

Mental health and wellbeing are essential for employees, their families, the workplace and the
broader community. Psychological claims make up a higher proportion of claims for Australian
Government employees than for licensees, however psychological injuries and illnesses in
workplaces have increased and claims for these conditions are more complex to assess and
manage. We note developments in the jurisdiction aimed at prevention, such as Comcare’s suite of
resources on psychosocial hazards and the recent Work Health and Safety (Managing Psychosocial
Hazards at Work) Code of Practice 2024, which are aimed at reducing the incidence of
psychological injury and associated claims.

7 What changes are required to the Comcare scheme to respond to climate change risks?

The opportunity to consider reforms to address emerging and existing climate change risks would
be informed by analysis of data relating to climate change risks and their impact on injury types,
circumstances and return to work rates.

Employee experience – discussion questions
8 What is your claim experience? Positive, negative or neutral?

The SRC Act review panel has sought submissions and survey responses from interested parties
including injured workers or family members of injured workers who have lived experience of the
Comcare scheme. This feedback will help the panel to consider this issue, as may relevant data
from other sources such as the National Return to Work Survey led by Safe Work Australia.

9 Explain what aspects of the Comcare scheme work well? For example, early intervention initiatives
or the claim-making process or rehabilitation and return to work support.

Throughout the SRC Act, there are references to ‘reasonableness’ and taking into account the
particular circumstances of an employee or their claim. While this could arguably cause uncertainty,
court and tribunal decisions provide guidance, and it allows flexibility to consider an employee’s
particular needs which accommodates diversity and promotes fairness. For example, paying higher
rates for medical treatment which may be more expensive in remote locations, or reimbursing travel
expenses for specific treatment despite closer options if cultural considerations apply.

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The flexibility extends to early intervention; the Comcare scheme does not currently prescribe
administration of early intervention and this allows scheme participants to design and deliver early
intervention initiatives which suit their workplaces and workforce.
Similarly, the Comcare framework’s broad approach to rehabilitation offers diverse support for
employees beyond just implementing a safe return to pre-injury or suitable duties. Rather,
rehabilitation can help employees achieve maximum recovery and improve their ability to participate
in daily, social, work and recreational activities. This holistic approach benefits employees and
reduces the financial and social costs of injuries.

10 What changes to the Comcare scheme would better support recovery and wellbeing and improve
return to work outcomes?

Simplifying processes and reducing administrative burdens and disputes allow claims and
rehabilitation managers more time to build relationships and collaborate with employees, health
practitioners, and rehabilitation provider, to create a supportive recovery environment. A recovery
and wellbeing framework which emphasises the health benefits of work encourages safe and
sustainable return to work. Flexibility allows employers to tailor support and wellbeing programs to
the specific needs of employees, workplaces and industries.

11 What changes to the Comcare scheme would better support workers with life-changing injuries and
illnesses?

The Comcare scheme is currently a long-tail scheme which supports employees, including those
with life-changing injuries and illnesses, with the ability to claim a range of long-term compensation
and rehabilitation benefits on a no-fault basis. Compensation for incapacity benefits may be
potentially payable to retirement age (regardless of the number of weeks of compensation received,
an employee’s level of permanent impairment, and are uncapped for the first 45 weeks of
incapacity. Rehabilitation support is available for the duration of a claim, and an employer’s
obligation to assist with suitable employment continues. Further, compensation for medical and like
treatment expenses, and aids and appliances, may continue to be claimed and the amount payable
is based on reasonable need and not subject to monetary caps or prescribed rates. For employees
with ‘catastrophic injuries’ there is no cap or exclusion period on compensation for attendant care
services and household services under the SRC Act.

12 What changes to the Comcare scheme would better support workers with psychological injuries and
illnesses?

Simplifying processes, reducing administrative burden, and retaining flexibility in the scheme would
lessen the impact of injury on employees and allow them to focus on recovery. Early intervention
and engagement are also essential for supporting employees with psychological conditions.
Acknowledging psychological claims are associated longer work absence, better support and
improved return to work outcomes requires collaboration and education with health practitioners and
workplace rehabilitation providers.

13 What changes to the Comcare scheme would better support families of workers who have suffered
serious injury, illness or death?

The SRC Act review panel has sought submissions and survey responses from interested parties
including injured employees or family members of injured employees who have lived experience of
the Comcare scheme, and their feedback will be integral to informing the panel on this issue.
Reforms that simplify and modernise the scheme can reduce the impact of injury or illness on
employees and their families by delivering benefits more efficiently and promoting early and safe
return to work as appropriate. Workplaces and employers have measures in place to support
families of employees affected by workplace injury who have suffered serious injury, illness or death
(eg. our Employee Assistance Program which provides employees and immediate family members
with professional, confidential and free mental health and relationship support).

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At a broader scheme level, there have also been recent developments to better support families
which could be reviewed to inform further reform. Earlier this year, Comcare appointed a Family
Liaison officer (a dedicated service to help injured employees and families affected by workplace
incidents to align with Safe Work Australia’s National Principles to support families following an
industrial death) and published a range of family support guides.

14 Do you have any suggestions for improving and building the competencies of claims managers?

Investing in claims managers’ ongoing training and development is essential to improving benefit
delivery and supporting injured employees within any workers’ compensation scheme. Continuing
professional development for claims managers should cover technical knowledge based on the
legislative framework, as well as broader skills such as drafting, decision-making, and
communication.
Our claims are managed by in-house claims managers who have a range of claims and injury
management experience from different jurisdictions and schemes. New claims managers in the
scheme require intensive training and on-boarding, and all claims managers benefit from continuing
education and training across a range of issues including technical skills (focusing on legislative
provisions or amendments) and broader skills (eg. our claims managers have undertaken Mental
Health First Aid training).
While there is no mandatory minimum or accredited training for claims managers in the Comcare
scheme, Comcare supports the jurisdiction with ongoing education and training (including in-person
and e-learn training, scheme guidance, and claims manager forums) and has developed a claims
manager core capabilities statement which defines a set of core capabilities for the role.

15 What is the claim experience for women, First Nations workers, older workers or other diverse
worker groups?

The SRC Act review panel has sought submissions and survey responses from interested parties
including injured employees or family members of injured employees who have lived experience of
the Comcare scheme. Feedback from women, First Nations employees, older employees or other
diverse worker groups in this scheme, and the experience in other jurisdictions, will help inform the
SRC Act review.
We are committed to building a more diverse, equitable and inclusive organisation which
recognises, respects and values differences. We support reforms to the Comcare scheme which
reflect these values. Reforms which help employees access, navigate and understand the
compensation and rehabilitation system, also support diversity and inclusivity and promote
collaborative and positive experiences.

16 What aspects of the Comcare scheme work well for diverse groups?

References in the SRC Act to reasonableness and taking into account the circumstances provide
some flexibility to consider the needs of an individual and accommodate particular needs of diverse
groups. For example, the medical treatment provisions allow individuals to access their preferred
treatment where it is reasonable in the circumstances. Further, communication and consultation
with employees, and the requirement to adjust this according to the employee’s communication
needs, is integral to the rehabilitation process.

17 What changes are required to the Comcare scheme to ensure injured workers with diverse
backgrounds or needs receive appropriate support?

Reforms which simplify language, calculations and processes will help employees access, navigate
and understand the compensation and rehabilitation system. Reducing compliance and
administrative tasks for claims and rehabilitation managers allows more time for building
relationships, working collaboratively, and creating a supportive recovery environment for
employees.

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Scheme coverage – discussion questions
18 What are the risks and issues that arise from current coverage of the Comcare scheme?

The Comcare scheme has evolved with the introduction of private sector corporations, and
workplaces and work arrangements within the commonwealth government itself have also changed
significantly. Both sectors face shared challenges and risks which warrant modernisation of the
SRC Act. The evolution of the national Comcare scheme with participation by employers across a
range of sectors, both government and private, premium-paying and self-insured, has helped drive
scheme improvements with increased competition and innovation as participants strive for better
performance and best practice. This provides the opportunity to design and develop a leading
scheme for supporting employees and restoring them to health and work which benefits the
employee, their family, the workplace and the broader community.
Compensation schemes throughout the country vary significantly in design and operation, including
in relation to eligibility requirements, liability assessments and benefit structures. This raises cross-
jurisdictional risks and issues regardless of whether private sector corporations are covered under
the Comcare, such as where an employee has worked for employers which are covered by different
compensation schemes.
If licensees were no longer able to participate in the Comcare scheme, this would have a significant
detrimental impact on licensees and their employees as arrangements for prevention, compensation
and rehabilitation (including entitlements and processes) would change drastically from one uniform
system to the disparate schemes across which employees work.

19 Is it still appropriate for the Comcare scheme to be the pathway to a national scheme for private
multi-state employers? Apart from Australian Government entities and companies who should have
access to the Comcare scheme? Give reasons.

Licensees should continue to have access to the Comcare scheme and it is an appropriate pathway
to a national scheme for private multi-state employers.
A national scheme is integral to delivering equitable and consistent outcomes for prevention, claims
management and rehabilitation within and between diverse multi-state workplaces with mobile
workforces. The national framework allows employers to plan and provide comprehensive and
consistent support to employees, wherever they may be working. The mobility of some of our
employees is such that they would otherwise be required to make claims in different states, each
with its own process, outcomes and benefits.
Applying an assortment of schemes to a dynamic national and mobile workforce causes increased
administrative complexity and inefficiencies which negatively impact employees and employers. A
national scheme helps employees access compensation and support in a consistent and fair
manner and helps employers deliver effective prevention, compensation and rehabilitation systems
for the benefit of employees.

20 What criteria should apply for corporations to join the Comcare scheme?

Recent legislative amendments prevent new licensees joining the Comcare scheme, except in
certain circumstances. The issue of eligibility for corporations to join the Comcare scheme has been
the subject of prior reviews and recommendations, with a range of proposed reforms (such as
replacing the ‘competition test’ with a ‘national employer’ test). Eligibility criteria may include the
nature of the employer, and attributes of the workforces and employee group (eg. cross-border,
multi-state, mobile). Applicants to the scheme would need to demonstrate financial viability, strong
claims management and rehabilitation systems. Any developments in this area would benefit from
expert actuarial analysis and modelling and should promote fairness and equity within the scheme.

WHS Act coverage – discussion questions
21 What are the implications for non-Commonwealth licensees in maintaining or ending the transitional
period for their coverage under the WHS Act?

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Non-Commonwealth licensees should maintain coverage under the WHS Act. This provides
regulatory consistency, operational efficiency and improved safety outcomes. The model laws were
introduced to create a balanced and nationally consistent framework to secure the health and safety
of workers and workplaces, however harmonisation of the model laws has not been consistent over
time, with differences between states and territories.
A consistent WHS framework simplifies compliance across different jurisdictions and reduces risk
associated navigating multiple state and territory laws with different regulators. Streamlined,
consistent and company-wide safety management systems and policies, support workers and
managers with consistent instruction and training on expected safety. Ending WHS Act coverage
would negatively impact non-Commonwealth licensees and their employees as it would create a
more complex administrative and compliance environment with the potential for increased risk, with
inconsistency in safety standards and procedures across different workplaces. WHS Act coverage
encourages improved safety outcomes as consistent standards lead to clearer expectations for
workers and management, and the scheme facilitates the sharing of best practices nationally.

22 Should self-insured licensees be regulated by Comcare under Commonwealth WHS laws, or state
and territory WHS laws and regulators? Please give reasons.

Self-insured licensees should be regulated by Comcare under Commonwealth WHS laws. National
regulation aligns with the operational structure of a company operating across Australia, with
national business units. This centralised oversight of a licensee’s operations throughout the country
provides the regulator with a broader monitoring capability and understanding of a licensee’s WHS
experience and performance. A single body overseeing safety performance also provides licensees
with a single point of contact for WHS matters, which streamlines reporting and accountability, but
also promotes consistent enforcement and interpretation of regulations.
Comcare’s regulatory operations group is well-established and funded, and communication and
compliance are enhanced by Comcare’s oversight of a licensee’s entire operations. Comcare is
responsive to changes in the jurisdiction and emerging risks. Its major infrastructure projects team
comprises specialist inspectors dedicated to WHS risks on major infrastructure and other complex
construction projects, with a proactive focus. The regulator’s prevention-led approach aims to
establish best practice and improved safety outcomes for the jurisdiction and license participation in
the national scheme promotes innovation and improvement.

Governance arrangements - discussion questions
23 Does the SRC Act suitably define the roles and responsibilities of:
• Comcare?
• SRCC?

The roles and responsibilities of Comcare and the SRCC can be understood from the SRC Act. In
general, any clarification and clearer delineation of an organisation’s roles and responsibilities may
prevent overlap and enhance accountability and focus on its own core responsibilities and functions.

24 What governance framework is needed to provide high-level oversight of Comcare? For example, a
governing or advisory board? What requirements should apply to any members of such a group, for
example relevant expertise or representation or both?

This issue has been the subject of past reviews and recommendations but would benefit from
review and analysis of the arrangements and experience in other jurisdictions. For example,
Victoria’s Transport Accident Commission and WorkSafe each has a single centralised body with an
advisory committee. Any governing or advisory board would preferably include stakeholders from
both employer and worker groups with diverse perspectives and expert members who can provide
guidance on complex issues.

25 What changes are required to ensure the SRCC has the powers and responsibilities to effectively
regulate self-insurance licensees and the public sector?

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The SRCC regulatory framework already provides for comprehensive monitoring and performance
reporting in accordance with the Licensee Compliance and Performance Model (LCPM). This
requires regular reporting to the SRCC and monitoring by the SRCC against licensee key
performance indicators. The LCPM was developed over an extended period of analysis and
consultation and adopted a risk-based approach to uphold statutory obligations and continuous
improvement rather than minimum compliance.

26 Does the existing framework provide appropriate oversight and monitoring, compliance and
reporting arrangements for:
• Comcare?
• Self-insured licensees?
• Delegated claims management arrangements (see 3.7)?
• Rehabilitation authorities?
• Workplace rehabilitation and other service providers?

In relation to Comcare, see question 4.
In relation to self-insured licensees, see question 25.
In relation to delegated claims management arrangements, see questions 59 and 60.
In relation to rehabilitation authorities, performance on return to work key performance indicators is
reported on and monitored according to the LCPM and rehabilitation authorities are also subject to
regular systems audits.
In relation to workplace rehabilitation and other service providers, Comcare has arrangements for
monitoring the performance of workplace rehabilitation providers.

27 Are the Hawke and Hanks Review recommendations still relevant for rehabilitation governance
including introducing an auditing program for rehabilitation authorities; creating a return-to-work
inspectorate; penalties for failures to meet rehabilitation responsibilities under the scheme; and the
ability to approve or accredit all providers operating in the scheme?

Reforms relating to rehabilitation reforms should be evidence-based and risk-based. Accreditation
and regulation of service providers can promote consistency and quality of care and support for
injured employees and clarify expectations and improve accountability of service providers. An
example is the past proposal for attendant care services to be provided by accredited, registered
and approved providers, which could include family members who follow an approval process in
appropriate circumstances.

28 What changes are required to the Comcare scheme to ensure future scheme financial
sustainability?

Any changes to the SRC Act and Comcare scheme should be made with the benefit of actuarial
modelling and cost-benefit analysis.

29 Is the scheme’s approach to prudential management adequate for Comcare’s compensation
liabilities? If not, what alternatives do you suggest?

The scheme’s approach to prudential management and Comcare’s framework for setting premiums
and maintaining provisions for future liabilities appear adequate and appropriate. Further analysis
could identify improvements to enhance the scheme’s robustness and financial sustainability.

30 Should Comcare be able to access, invest and use money from premiums to fund proactive
activities?

Feedback from Comcare and its premium payers, and input from actuarial and financial experts,
would help inform the panel on this issue.

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31 Are changes required to the licence fee setting provisions under the SRC Act to allow for effective
and efficient cost recovery?

There is currently a review being undertaken in relation to the setting of licence fees and their
calculation which may help inform any changes proposed to be made. Comcare is leading the
review with a Licensee Working Group which consists of Comcare and licensee representatives.
The review will ensure the licensing model continues to act on a user pays basis, promoting better
practices and ensuring effective and sufficient cost recovery.

32 Are the requirements under the SRC Act for membership of the SRCC appropriate?

Membership of the SRCC should be representative and proportionate to the various stakeholders
and participants in the jurisdiction, with a range of expertise relevant to its specific functions.

33 Are the arrangements for tripartite involvement under the WHS Act and SRC Act adequate? If not,
what additional arrangements are required under the SRC Act?

Any review or reform of arrangements for tripartite involvement (including the SRCC, referred to at
question 32), should aim to ensure balanced, inclusive and proportionate representation of the
diverse range of stakeholders participating in the scheme. Any arrangements need to be effective
and fair and should include transparent processes and clear accountability measures for decision-
making within the tripartite framework.

34 Do you have suggestions for improvements to facilitate tripartism within the Comcare scheme? If
so, what are they?

Any review or reform of arrangements for tripartite involvement (including the SRCC, referred to at
question 32), should aim to ensure balanced, inclusive and proportionate representation of the
diverse range of stakeholders participating in the scheme and, to be effective and fair, should also
include transparent processes and clear accountability measures for decision-making within the
tripartite framework.

Scheme entitlement – discussion questions
35 Does the definition of ‘employee’ in the SRC Act reflect contemporary working arrangements? Are
the deeming provisions adequate?

The definition of ‘employee’ in the SRC Act accommodates current work arrangements including
same coverage for employees working overseas (coverage under the state schemes for overseas
employees is limited). The definition of ‘employee’ has been the subject of prior review and
submissions which can help inform the current review together with an updated analysis of any
changes in other jurisdictions or issues experienced by participants in the Comcare jurisdiction. Any
proposed amendment would need to avoid potential confusion between coverage under
commonwealth and state jurisdictions and unintended consequences, particularly if any extension to
the deeming provisions is considered.

36 What is best practice for determining injuries and diseases? For example, is it still appropriate to
separate these conditions? Is there a different approach needed for certain injuries, for example
psychological?

Assessing and determining liability for injuries and diseases is complex, as evidenced by the range
of tribunal and court cases on this issue. Reforms aimed at simplifying language and processes and
clarifying eligibility requirements would improve employees’ understanding of the system and claims
managers’ ability to apply it. A single test requiring a significant contribution by employment,
regardless of the nature of the condition, would be simpler, however this does not acknowledge the
different characteristics of injuries and diseases and variance in eligibility requirements. Work
contribution is typically more difficult to assess in the case of diseases. A review of the provisions

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across different jurisdictions and actuarial analysis of the impact, if any, of differences between the
provisions, or any potential alternatives, would help identify best practice.

37 Is there sufficient clarity as to when an employee sustains an injury ‘in the course of their
employment’ if they are away from their usual place of employment or injured during an interval
within their usual period of employment?

This issue has developed with the diverse and changing nature of the workplace and work
arrangements, including flexible work practices and mobile workforces. The relevant legislative
provisions are not overly-prescriptive which has allowed evolving decision-making, guided by case
law, to apply the provisions to different work circumstances. The scheme guidance could be
considered with a view to better reflecting assessment requirements in the legislation, however
drafting which is not overly prescriptive will allow its application to develop according to changing
circumstances.

38 Is the current threshold for liability for diseases (significant contribution) appropriate?

The current threshold for liability for diseases is appropriate.

39 Are the current exclusions under the SRC Act appropriate?

The SRC Act contains various exclusions provisions in different provisions. Inconsistency can cause
confusion and complexity for employees and claims managers, and therefore increased disputes,
which could be addressed and improved by reform. For example, Tribunal and Court decisions
demonstrate there were different approaches in the jurisdiction to the application of s 6(3) (where an
employee voluntarily and unreasonably submitted to an abnormal risk of injury). There were
disputes as to whether that exclusion was confined only to circumstances where s 6(1) was used to
extend the ordinary operation of s 5A. The meaning and application of the ‘reasonable and
administrative action’ exclusion is another example of varying approaches within the jurisdiction
which have been demonstrated and addressed by Tribunal and Court decisions.
Streamlining exclusions to compensation and clarifying their application within the legislation may
be beneficial if flexibility is retained to allow evolving decision-making. As to the nature of those
exclusions, analysis of exclusionary provisions across the different jurisdictions (their design and
impact) would help inform this issue.

40 How can entitlements be structured to improve outcomes for employees and their families? What
changes can balance fair support while ensuring the financial viability of the Comcare scheme? For
example, should changes be made to the step-down provisions or the duration of payments?

Early and transparent engagement with injured employees about their entitlements and providing
timely compensation and rehabilitation support leads to better recovery and return to work
outcomes for employees and their families. A scheme’s financial viability will be influenced by how
effectively it supports and promotes successful recovery from injury and safe return to pre-injury
work.
Simplifying the structure of entitlements, and streamlining processes for accessing them, would
reduce administrative burden and help maintain focus and efforts on recovery, rather than
administrative and technical issues. Difficulty in accessing, navigating and understanding benefits
can delay support, amplify the claims process and negatively impact injured employees and their
recovery.
The incapacity provisions in the SRC Act are particularly technical and complex. The calculation of
normal weekly earnings could be simplified to better fit varying work arrangements (e.g. pay cycles,
rosters, project work). The difference in calculating 45 weeks of incapacity for the purpose of
sections 19 and 116 could also be reviewed and clarified for consistency and easier tracking and
understanding.
The actual amount and duration of incapacity support is beneficial with employees entitled to 100%
of their normal weekly earnings for the first 45 weeks of incapacity and potentially to retirement age

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(and beyond, depending on age at date of injury). Most other jurisdictions impose an upper limit on
weekly incapacity entitlement, however the SRC Act has no cap for 45 weeks so employees are
provided with maximum support as they focus on recovery after injury. The current step down after
45 weeks of incapacity (with a cap at 150% of the AWOTEFA) is to 75% of NWE where an
employee is not working, however this rate increases according to any hours worked which
encourages and rewards employees to return to work.
Prior reviews into the level and duration of income replacement have included recommendations as
to alternative step-down provisions and duration of payments. Analysis of incapacity provisions in
other jurisdictions and their impact on return to work and recovery rates, as well as actuarial
modelling of any potential recommendations, would help ensure recommended reforms are
evidence-based, will achieve desired outcomes without unintended consequences, and will not
negatively impact the financial viability of the scheme. Any change to duration and structure of
incapacity payments would also need to be considered in the context of the broader statutory
framework, given the incapacity entitlement provisions have been designed to provide long-term
support.

41 What changes are needed to best determine fair compensation for medical treatment and
rehabilitation and household and attendant care services?

Elements of the current drafting provide flexibility to assess compensation according to what is
reasonable in the circumstances and in what amount. This allows claims and rehabilitation
managers to have regard to an employee’s particular needs and circumstances. Terms such as
‘reasonably required’ are not defined in the legislation, however direction has been provided by
tribunal and court decisions which have formed the basis of Comcare scheme guidance and could
help inform any legislative amendment.
The scheme may also benefit from formally including evidence-based principles, such as the
Clinical Framework for the Delivery of Health Services, as part of assessing whether medical
treatment is ‘reasonable to obtain’. The Tribunal has referred to and considered the Clinical
Framework in making decisions regarding medical treatment. The guiding principles of the clinical
framework are measurement and demonstration of the effectiveness of treatment, adoption of a
biopsychosocial approach, empowering the injured person to manage their injury, implementing
goals focused on optimising function, participation and return to work, and basing treatment on best
available research evidence. These are consistent with the objects of an effective workers’
compensation and rehabilitation scheme and would help guide employees, their treating
practitioners and claims managers.
Introducing a prescribed list of fees for medical and like treatment expenses has been previously
proposed. This may appear to be a practical approach, however its design and operation would
need to be carefully considered, with regard to input from the medical profession and analysis of
best practice in other schemes. Other state and territory medical service fees may provide a guide,
however a degree of flexibility in the application may be required to allow for exceptions. In some
circumstances, mandatory prescribed lists of fees may limit an injured employee’s access to
appropriate medical treatment from a particular provider, or increase the out-of-pocket cost to the
employee, if a practitioner will not provide services at the scheduled rate. This may adversely
impact employees who live or work in remote locations where access to healthcare can be limited
and more costly.
In the case of attendant care services and household services, the relevant provisions have been
more recently reviewed and updated to introduce clearer parameters and allow variation in benefits
according to whether an employee has a ‘catastrophic injury’. For example, compensation for
household services for employees with a ‘catastrophic injury’ is not subject to a cap or exclusion
period. The connection of benefits to the nature of injury and degree of its impact allows the level of
support to be increased according to need. The concept of ‘catastrophic injury’ is based on the
National Injury Insurance Scheme (NIIS) which introduces an objective measure into the Comcare
framework consistent with schemes.

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42 How should the permanent impairment provisions be improved?

The SRC Act provisions relating to permanent impairment are worth reviewing and improving with
reference to best practice and actuarial analysis. While Comcare’s Guide to the Assessment of the
Degree of Permanent Impairment Guide was recently updated (Edition 3 came into effect on 1 April
2023), the legislative provisions in the SRC Act have not been amended to accommodate
developments in case law and improve the process.
There are aspects of the permanent impairment provisions under the SRC Act which are unique to
the Comcare scheme. For instance, the concept of impairment of the ‘whole person’ used in the
SRC Act and the Comcare Guide is common in other jurisdictions, however the ability to combine
various impairments into a single whole person assessment is restricted under the SRC Act due to
the meaning of ‘injury’ (demonstrated in the High Court case of Canute). This can cause complexity
and confusion when assessing non-economic loss (a method unique to the Comcare scheme) as an
employee may have multiple impairments which have been assessed separately and therefore
require separate non-economic loss assessments. It can be difficult for employees, claims
managers and medical assessors to isolate the impact of a single injury on non-economic loss
categories where multiple injuries may have a combined effect.

43 Does the Comcare scheme sufficiently support injured employees with no potential to return to
work?

As a long-tail scheme, employees are able to claim ongoing compensation benefits and
rehabilitation support for the duration of a workplace injury or illness. Employers also have an
ongoing role in rehabilitation and a continuing obligation to assist employees with providing or
finding suitable employment. In the Comcare scheme, rehabilitation programs can cover a range of
activities broader than return to work monitoring, including support to improve daily living, social and
recreational activities aimed at assisting an employee with their recovery and managing the impact
of their injury.

44 Should the scheme allow more options to finalise claims, including lump sum payments? What
safeguards should be in place?

The restriction on finalising claims in the Comcare scheme reflects the nature of liability under the
under the SRC Act and its long-tail design. Whether and how to introduce options to finalise claims
under the Comcare scheme would need to be carefully considered with reference to the overall
existing framework (and any consequential adjustments required) and informed by experience in
other jurisdictions and actuarial analysis. An evidence-based and risk-based approach should
consider any potential unintended consequences on employees’ recovery and return to work
outcomes.

45 Should access to common law continue to be restricted?

The limitations on access to common law in the SRC Act reflect the long-tail nature of the Comcare
scheme and its focus on providing no-fault compensation benefits, including lump sum payments for
permanent impairment, and rehabilitation support for the duration of an injury or disease. Whether
and how to change this design would need to be carefully considered with reference to the overall
existing framework (and any consequential adjustments required) and informed by experience in
other jurisdictions and actuarial analysis. An evidence-based and risk-based approach should
consider any potential unintended consequences on employees’ recovery and return to work
outcomes.

46 If access to common law continues to be restricted, should there be a greater right to redeem
compensation benefits?

If access to common law continues to be restricted, the SRC Act review provides an opportunity to
consider alternatives, including a right to redeem compensation benefits.

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Redemption under the SRC Act is currently confined to incapacity compensation in certain
circumstances, which can be reinstated, so the provisions are limited and not designed to finalise a
claim. The redemption ceiling is indexed but low, therefore the provisions are not regularly applied.
A higher ceiling may make it easier for employees to access redemption where the injury has
reached the maximum level of recovery, and the incapacity level is likely to continue indefinitely and
the amount of incapacity compensation payable is unlikely to changed. The impact of any increase
to the redemption ceiling could be considered with the benefit of actuarial modelling and analysis.
Whether and how to change this design to include a greater right to redeem compensation benefits
would need to consider the type of benefits subject to redemption, the eligibility criteria and the
effect on the claim, and any realignment of the overall benefits scheme. This would need to be
carefully considered with reference to the overall existing framework (and any consequential
adjustments required) and informed by experience in other jurisdictions and actuarial analysis. An
evidence-based and risk-based approach should consider any potential unintended consequences
on employees’ recovery and return to work outcomes.

47 Do the provisions in the SRC Act aimed at preventing double-dipping in relation to like-remedies
need changing following Comcare v Friend?

The breadth of the SRC Act review provides an opportunity to consider the effectiveness of the
scheme, including its interaction with other jurisdictions and avoidance of double-dipping and
duplication of benefits for the same injury or illness. The SRC Act aims to address double-dipping
through various mechanisms, including sections 48, 118 and 119. Other jurisdictions have evolved
and schemes have been introduced since the SRC Act commenced; considering the nature of these
and the potential overlap, if any, with the Comcare scheme, would help identify whether related
amendments to the SRC Act are required.

48 Should there be any adjustments to workers’ compensation payments for compensation or support
from other sources? For example, what impact should the receipt of statutory entitlements and
other income have on the entitlement to, and calculation of, compensation?

The breadth of the SRC Act review provides an opportunity to consider the effectiveness of the
scheme, including its interaction with other schemes and avoidance of double-dipping and
duplication of benefits for the same injury or illness.
As a general principle, adjusting workers’ compensation benefits according to payments from other
sources aims to promote equity of outcomes and fairness and avoid double dipping. For example,
incapacity benefits are reduced by the amount of other income received so the total benefit does not
exceed an employee’s pre-injury earnings. Reviewing other jurisdictions and schemes to identify the
nature of support provided, and any potential overlap or interaction with the Comcare scheme,
would help guide any recommended amendments (including to s 119 which currently relies upon
regular review and update of specified laws list; the list may require updating or, alternatively,
introducing a flexible definition of compensation for the same injury with relevant criteria allow for
other legislative changes to be captured).

Rehabilitation and return to work – discussion questions
49 Does the Comcare scheme provide suitable criteria and arrangements to support:
a. Early intervention?
b. Return to work?

Early intervention and return to work support is a crucial to returning an employee to good health
and safe work. It is an integral part of an effective and sustainable scheme as there is a direct
correlation between an employee’s length of absence from work and likelihood of returning to work.
The Comcare scheme provides a flexible framework to support early intervention and return to
work, provide education and guidance and create a forum for scheme participants to share
innovations and discuss best practice. This flexibility allows employers and rehabilitation authorities

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to tailor support to the individual needs of the employee and the circumstances of their workplace
and industry.
Comcare has issued guidance on implementing an effective early intervention program and on
better practice for early intervention programs. In relation to return to work, the framework provides
for return to work to be assessed, planned and monitored, with suitable support. The scheme also
allows a rehabilitation program to be broader than just return to work which enables a rehabilitation
authority to provide rehabilitation support while an employee is building their capacity to return to
work.

50 Should the Comcare scheme provide for provisional payments? If so, what should be the length and
amount of any such payments, and how/whether to recover payments if ultimately the injury is not
due to work?

Providing early health intervention and rehabilitation support to an employee after injury is a key to
achieving better recovery and return to work outcomes. As early intervention is not prescribed within
the SRC Act, programs can vary but can also be tailored to the employee, their workplace and
industry, and what other support is available to them. Provisional payment frameworks can help
facilitate early access appropriate medical treatment and investigation. This assists recovery and
the return to work process and can also help clarify the nature and extent of the claimed injury.
Provisional payment frameworks aim to ease the impact of potential delays in claims determination
which can cause undue stress, concern and financial pressure for employees and their families
when the focus should be on recovery and return to health and work. Prescribed timeframes have
been recently introduced to address issues of delay in claims determinations and processing. An
analysis of decision-making times and the impact of the prescribed time frames may help inform the
design of any provisional payment framework, particularly when payments should commence, what
type and for what duration. Any potential delay in formal claim decision making (eg. caused by
additional administrative burden or disputes) should be avoided.
Whether and how to recover payments for non-compensable injuries will need to be guided by
actuarial modelling and informed by experience in other jurisdictions, to ensure any introduction of
provisional payments is successful and does not negatively impact the scheme’s financial viability.
Whether and how payments are recovered should also help inform issues of what provisional
payments should be provided, in what circumstances and for how long.

51 Should the SRC Act provide for greater oversight of rehabilitation authorities and rehabilitation
providers?

The SRC Act framework allows oversight of rehabilitation authorities and rehabilitation providers. It
allows Comcare to take a proactive and educational approach to rehabilitation authorities within the
jurisdiction while also performing audit and compliance activities. The SRCC also regularly monitors
rehabilitation authorities’ performance in accordance with its LCPM including via reporting against
key performance indicators. The current approach encourages rehabilitation authorities to strive for
best practice and continuous improvement within their workplaces and the jurisdiction.
In relation to workplace rehabilitation providers, Comcare has a structured approval and monitoring
process, and mandatory training requirements, aimed at ensuring high standards of service and
consistency. Workplace rehabilitation providers’ compliance and performance are monitored in
accordance with Comcare’s Performance Monitoring Framework.
Whilst the current framework allows Comcare to approve rehabilitation providers their use is not
mandated throughout the SRC Act (for instance, s36 assessments and examination can be
undertaken by a suitably qualified person which is not confined to an approved rehabilitation
provider). Requiring the use of an approved and accredited rehabilitation provider would improve
consistency and service delivery across the jurisdiction.

52 Should the SRC Act provide Comcare with greater regulatory powers in relation to rehabilitation?

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The review could consider whether providing Comcare with greater regulatory powers, such as in
relation to accreditation or approval of workplace rehabilitation providers, would improve
consistency in service delivery. Comcare’s existing performance monitoring framework (see
question 51) includes performance measures and a process for addressing WRP compliance and
performance issues, potentially leading to revocation of a WRP’s approval. Any proposed increase
in regulatory powers would need to be assessed to identify whether this would lead to better
outcomes than the current framework.

Dispute resolution – discussion questions
53 What is your experience of dispute resolution in the scheme? What improvements would you
suggest arising from that experience?

The SRC Act review is a worthwhile opportunity to consider dispute resolution in the Comcare
scheme; reforms which aim to reduce the incidence and duration of disputes would be beneficial.
Effective outcomes are achieved when parties can freely express and share their points of view,
narrow the issues in dispute, and explore negotiated resolution at an early stage. Having an option
to resolve disputes earlier and more quickly can help reduce the incidence of adversarial or
protracted litigation. With the Administrative Review Tribunal only recently established, the
jurisdiction has not yet had sufficient time to experience whether this new framework will improve
dispute resolution for the scheme.

54 Should the legislative framework provide for pre-litigation dispute resolution processes prior to
external review by the Tribunal? If so, at what point in the process and by whom?
The SRC Act review is a worthwhile opportunity to consider whether pre-litigation dispute resolution
would be effective in reducing the incidence and duration of disputes would be beneficial. A good
dispute pre-litigation resolution process is one that facilitates early negotiated outcomes by
encouraging parties to genuinely explore resolution with some finality as part of a non-adversarial
process.
Other jurisdictions have pre-litigation processes that vary in parameters and process. Whether and
how to introduce a pre-litigation dispute resolution to the Comcare scheme could be informed by
analysing the experience and data from other frameworks and their success. This would help
identify potential unintended consequences and help design a best practice framework which
encourages genuine engagement (rather than compliance-based behaviour) and early negotiated
outcomes.

55 Should the legislative framework be changed to adopt best practice in dispute resolution from other
schemes? If so, please specify.

The SRC Act review is an opportunity to design a scheme based on best practice, including in
relation to dispute resolution. Reforms which simplify and expedite the dispute resolution process
and encourage timely negotiated outcomes would be beneficial. Considering dispute resolution
options for the SRC Act would benefit from assessing the effectiveness of other frameworks and
their suitability to the Comcare scheme.

56 Is there a role for medical panels to contribute to the dispute resolution process, and if so, how
should such a panel be constituted and should the panel’s opinion be binding?
As there are medical panels in other schemes and jurisdictions, it would be worth analysing their
design and impact when considering their effectiveness and whether they would achieve desired
outcomes and suit the Comcare scheme.

57 How can dispute resolution processes be structured to limit further harm to claimants? For example,
should there be dispute resolution at the reconsideration stage? Who should pay legal costs
associated with the reconsideration?

The reconsideration stage is an important step in the review process, and can result in decisions
that revoke or modify a primary determination, benefiting employees and eliminating the need for

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further review. One option for dispute resolution reform may be to include a pre-litigation process
after the reconsideration stage. This would provide an option and opportunity to reach a resolution
with finality and without proceeding with a formal Administrative Review Tribunal application.
Allowing payment of an employee's costs in a pre-litigation process would encourage genuine
engagement and consideration of early dispute resolution.

58 Do you have other suggestions for improvements to the processes for resolution of disputes? For
example, other avenues for the resolving of disputes or providing for ‘all in’ settlements?

Any reforms aimed at reducing the incidence and duration of disputes are welcome, to improve the
experience of employees and reduce the negative impact of adversarial interactions on an
employee’s recovery and relationships. Early dispute resolution as part of a pre-litigation process or
ART application should be encouraged. The mechanisms and parameters for resolving disputes
would be influenced by any reform to the overall statutory framework, including considerations at
questions 44-46.

Scheme administration – discussion questions
59 Should the Comcare scheme continue to provide for delegated claims management arrangements?

The preamble to this discussion question relates to Comcare’s delegation of its decision-making
powers and responsibilities to Australian Government employers (Services Australia and the
Australian Taxation Office). The findings of the Australian National Audit Office’s recent
performance audit of Comcare identified improved outcomes which support continuing these claims
management arrangements. This is consistent with our experience of self-insurance and in-house
claims management.

60 What aspects of the delegated claims management arrangements should remain? What changes
are needed?

Input from the stakeholders involved in these arrangements would help inform the panel on this
issue.

61 Are further changes required to the claims decision-making framework to improve outcomes and
ensure fair, accurate and timely decision making? If so, please specify.

Prescribed timeframes for making initial liability and reconsideration decisions have recently been
introduced to promote more timely decision making. In the case of initial liability determinations, the
timeframes maintain the claims manager’s ability to request and receive further information from
employees and their treating practitioners. This means that more accurate decisions can be made in
the first instance based on adequate evidence which can avoid delay, confusion and disputes (for
instance by clarifying the diagnosis of injury for which liability is accepted).
The prescribed timeframes for reconsiderations do not have similar ‘stop-clock’ provisions; the
prescribed timeframe is fixed and cannot be suspended if further information or clarification is
required. Given the next step in the review process is an application to the Administrative Review
Tribunal, applying the same process to reconsideration decisions could potentially reduce the
number of applications made or the duration of those proceedings.
As the introduction of prescribed timeframes has been relatively recent, a review and analysis of
their impact and any unintended consequences would help to inform any further reform.

62 How can unintended consequences best be avoided?

A comprehensive review of research, data, actuarial analysis, findings from past reviews, and
learnings from other compensation schemes, can help identify unintended consequences and build
a leading scheme for supporting injured employees and restoring them to health and work. A
system which is flexible and adaptable and not overly prescriptive also allows unanticipated
circumstances to be accommodated and can avoid unintended consequences. Engaging with
subject matter experts and undertaking thorough consultation with key stakeholders at each step of

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legislative reform is also essential to building a robust scheme which is fit for purpose and future- proof.
We therefore appreciate this opportunity to respond to the public consultation issues paper prepared by the SRC Act review panel, and we would welcome the opportunity to review any detailed proposed reforms and further contribute to and assist the review.

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