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

Comcare’s submission to the SRC Act Review
Issues Paper 2024

Submission Date: 19 December 2024
Contents
Contents ..................................................................................................................................... 2
Introduction ................................................................................................................................. 3
Best practice in workers’ compensation – Terms of Reference (ToR) 1 ............................................... 4
Identifying the principles of best practice .................................................................................................................. 4
Ensuring the scheme is responsive to changing workforce conditions ......................................................................... 6

Employees’ experience of the scheme (ToR 2)................................................................................. 9
Improving health outcomes for injured workers .......................................................................................................... 9
Experiences and outcomes of specific groups.......................................................................................................... 12

Scheme coverage (ToR 3) ............................................................................................................ 14
National coverage of private sector employees ........................................................................................................ 14
Work health and safety coverage ............................................................................................................................. 17

Governance arrangements (ToR 4) ............................................................................................... 18
Best practice governance, regulation and oversight .................................................................................................. 18
Financial management and viability ........................................................................................................................ 22
Social partner involvement and tripartism ............................................................................................................... 24

Scheme entitlements (ToR 3 and 5) .............................................................................................. 26
Eligibility for compensation ..................................................................................................................................... 26
Scheme entitlements ............................................................................................................................................. 29
Interactions with other schemes and sources of income .......................................................................................... 34
Rehabilitation, return to work and early intervention ................................................................................................. 35

Resolving disputes in the scheme (ToR 6) ..................................................................................... 37
Resolving disputes in the scheme ........................................................................................................................... 37

Scheme administration (ToR 7) .................................................................................................... 39
Delegated claims management............................................................................................................................... 39
Ensuring fair, accurate and timely decision-making .................................................................................................. 39

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 2
Introduction
This document sets out Comcare’s submission to the public consultation Issues Paper released on 21 October
2024 that was prepared by the independent panel as part of a comprehensive review of the Safety,
Rehabilitation and Compensation Act 1988 (SRC Act).
The Comcare scheme provides a system for work health and safety, rehabilitation and compensation for employers and workers in Australia. The Comcare scheme administers several pieces of legislation including the SRC Act, Work Health and Safety Act 2011 (WHS Act), Asbestos-related Claims (Management of
Commonwealth Liabilities) Act 2005 (ARC Act) and the Parliamentary Injury Compensation Scheme Instrument
2016 (PICS).
The focus of the review is the SRC Act, which provides rehabilitation and workers’ compensation arrangements to employers and workers. At the conclusion of the review, the panel will make recommendations to the government to inform future legislative reform of the Comcare scheme. Comcare notes some questions relate to, mention, or require consideration of, the WHS Act, ARC Act and the PICS.
The 1988 law represented progressive social reform at the time. Since then, working arrangements, remuneration and employment dynamics have changed. Originally, the laws only covered the public sector.
Now, private sector companies are included, operating in a diverse range of industries. Similarly, court and tribunal decisions over the years have changed the understanding and interpretation of the legislation, in some cases making the legislation overly complex and unwieldy.
All matters of policy raised within the Issues Paper are ultimately matters for government to decide. Comcare has important functions under the SRC Act and the legislative framework and offers its observations from its extensive experience with the Comcare scheme to support the government reform of the legislative framework.
Given the incremental changes within the scheme and more broadly in the Australian community, Comcare supports a holistic review and update of the legislative framework to ensure that it supports the prevention of injury and enables prompt return to health and return to work where appropriate. Changes to the legislative framework of the SRC Act will need to carefully consider resourcing implications for implementation as well as the impacts on premium setting.
Comcare supports changes to the legislative framework that:
a. improve the usability of the SRC Act to ensure the Commonwealth workers’ compensation legislation
reflects contemporary social models, best practice and allows for clear and effective implementation
b. better support workers to navigate the workers’ compensation scheme and provides flexibility and
different pathways for workers based on their circumstances
c. enable it to more readily and ably adapt to changing workplace environments and changes in workers’
compensation trends
d. strengthen and update worker entitlements to ensure they are fair and support return to work
e. ensure appropriate and flexible funding arrangements so the scheme remains financially sustainable
and to enable investments in technology and proactive prevention and injury management activities.

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Best practice in workers’ compensation – Terms of Reference (ToR) 1
Identifying the principles of best practice
Question Comments

1. What are the primary objectives of a The primary objectives of a no-fault workers’ compensation scheme may include:
workers’ compensation scheme?
a. work should be a significant contributor to injury or illness for liability to arise
Should those objectives be
b. injured workers should be the focus of workers’ compensation arrangements
expressly stated in the Act?
c. injured workers should be provided with income support during incapacity, and be compensated for
permanent impairment and non-economic loss
d. when workplace injuries do occur, injured workers should receive early treatment aligned, as much as
practicable, to the principles of the Clinical Framework for the Delivery of Health Services to enable them to
return to health and work as quickly and safely as possible
e. employer costs should be affordable, reflect risk (based on their performance in injury prevention and
management) and fully fund the liabilities and operational costs to ensure the financial sustainability of the
scheme
f. benefit structures should be straightforward, fair and support return to work strategies.
These objectives, or an equivalent set, should be expressly stated in the SRC Act to provide clarity for injured
workers, administrators and other stakeholders in the compensation process. Further, stating the object of an
SRC Act serves to clearly state the objectives the legislation is intended to achieve, which can assist with resolving
any future ambiguity or uncertainty that may arise with its interpretation and assist with its efficient administration.

2. What are best practice design Comcare considers best practice design principles for a no-fault workers’ compensation scheme should include:
principles for a workers’
a. Health of workers is the priority: Worker health and wellbeing are at the centre of service delivery, medical
compensation scheme?
treatment and return to work.
For example, can you provide
b. Rehabilitation focus: Recognise the importance that work can have in supporting return to health and
examples (from other schemes) of
return to work and prioritises early intervention and rehabilitation programs to support recovery to health
best practice approaches to early
and, where appropriate, recovery at work or reintegration into the workforce at any appropriate capacity.
intervention, rehabilitation
c. Preventive measures: Support employers to implement health and safety programs, aiming to prevent
(including supporting employees
workplace injuries and illnesses.
with psychological injuries),
d. Accessibility: Ensure that injured workers can easily understand and access benefits and services,
vocational support and return to
including through support structures such as the use of contemporary digital self-service tools and
work?
technologies.

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Identifying the principles of best practice
e. Efficiency: Legislative provisions should be simple, clear and aligned to the objectives of the scheme to
minimise the administrative burden on the worker and the claims manager.
f. Transparency: Provide clear communication about rights, responsibilities, and benefits, fostering trust
among workers, employers and administrators of the SRC Act.
g. Minimise disputes: Reduce disputes and litigation through simplifying, as far as practicable, the legislative
framework and the claims process for all parties.
h. Flexibility: Allow for different pathways through the workers’ compensation scheme to accommodate
workers’ individual circumstances.
i. Adaptability: Provide for adaptations to the scheme as workplace environments and technologies evolve,
ensuring ongoing suitability and relevance.
j. Fairness: In respect to accessing compensation and supports through the workers’ compensation system.
k. Timeliness: A focus on making correct and timely decisions, throughout the claim lifecycle.
l. Stakeholder involvement: Engage stakeholders, including workers, employers, and medical professionals,
in the design and evaluation of the scheme.

3. Describe the areas of the scheme To help workers navigate the legislative framework, understand and access their entitlements, and to minimise the
needing reform to help workers administrative burden, the legislative framework underpinning the scheme could be redrafted based on the
understand and access their following principles:
entitlements. What changes are
a. the structure of the Act should be logical and clear, following the sequence of the compensation process –
needed to enable workers better to
recommendations 3.1 to 3.3 in the 2013 Hanks review presents a solid basis for a revised SRC Act structure
navigate the legislative framework?
b. the Act should have clearly stated objectives, and consideration could be given to explanatory notes or other
aids where required throughout the SRC Act, to assist with interpreting it consistently with its objectives
c. uses modern day drafting techniques including simple language, a trauma informed approach, and notes to
help the reader identify where there is interaction with other Commonwealth legislation
d. uses calculation methodologies, for example, to calculate incapacity benefits and interest payable, that are
simple and consistent, that is, tied to CPI or WPI instead of Ministerial declarations
e. terms and definitions should be simple and consistent throughout the SRC Act and, where possible and
appropriate, consistent with related legislation, for example, the WHS Act.
In its work health and safety jurisdiction, Comcare has established a Family Liaison Officer to support seriously
injured workers and bereaved families through the process involved with investigating and prosecuting workplace
incidents under the WHS Act in a trauma informed way. A similar approach in specific circumstances, such as
catastrophic injury, death claims, and terminal illness, could assist workers and their families navigate the workers’
compensation process under the SRC Act and would be of value. This could be achieved through a scheme
advocate, or social or support workers, for example. As Comcare is funded through cost recovery, there would need

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 5
Identifying the principles of best practice
to be consideration of funding arrangements to support this scheme advocate role or other approaches that seek to
better support workers to understand and access their entitlements.

Ensuring the scheme is responsive to changing workforce conditions
Question Comments

4. What changes are required to Comcare is cognisant of the changing work environment and the need for a legislative framework that supports an
address workforce challenges effective and sustainable scheme.
(current and emerging: see ‘Issues to
Noting Comcare has provided more detail in responses to other questions in this submission, a summary of
be considered’ above) to maintain an
changes to address workforce challenges, including those listed in the ‘Issues to be considered’ section of the
effective and sustainable Comcare
issues paper include:
scheme?
a. adapt benefit structures to better meet the needs of diverse working arrangements and conditions including
remote, mobile and flexible work and the industries covered by the scheme
b. establish a flexible and adaptable legislative framework with mechanisms for regular review and updating of
the legislation to ensure it can adapt and apply to changing work environments
c. stronger early intervention and prevention programs
d. greater stakeholder engagement, that is, involve workers, employers, and healthcare professionals in the
legislative review and update process to ensure the scheme reflects their needs and experiences
e. there should be a clear and strong work relationship to establish workers’ compensation entitlements.
Given the changing nature of workers’ compensation and the need to ensure the scheme is responsive to changing
conditions and new issues as they arise, Comcare supports the development and implementation of principle-
based legislation which is supported by the flexibility of subordinate instruments such as regulations, directions,
other legislative instruments, and scheme guidance to assist delegated decision makers.
This will enable the scheme to respond to case law developments and emerging evidence that necessitate a
legislative response.
An example of a current legislative instrument is the Guide for Arranging Rehabilitation Assessments and Requiring
Examinations (the Guide), made under section 57A of the SRC Act. The Guide requires decision-makers to comply
with certain matters prior to directing a worker to undertake a rehabilitation assessment or to undergo an
independent medical examination, with its object being to provide for (amongst other things) appropriate
consideration of a worker’s individual circumstances.

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Ensuring the scheme is responsive to changing workforce conditions

This question can be considered from 2 perspectives. Firstly, whether the current legislation adequately considers
5. What changes are required to the
different types of work, including remote and working outside traditional hours. Secondly, whether access to
Comcare scheme to better
treatments, supports, benefits for workers who work remotely and/or outside ‘traditional’ work hours is adequate.
accommodate remote work and
Workers in this cohort typically include those who perform some or all their job duties outside the traditional office
working outside ‘traditional’ work
setting and could include working from home, working away from home but not at usual place of work, working in a
hours?
geographically remote location and working outside ‘traditional’ work hours (that is, 9:00 am to 5:00 pm).
In respect to the first interpretation of this question, Comcare’s view is legislation should reflect modern work
arrangements and relationships and promote safe workplace practices. An example is shifting from the existing
multi-test structure to a single employment connection test, to ensure a real and identifiable relationship between
employment and the injury or disease, as described at question 36.
In respect to the second interpretation, Comcare considers that a legislative framework should reflect diverse
working arrangements and conditions including remote, isolated, mobile and flexible work and the varied industries
covered by the scheme. This cohort of workers may not be aware of their rights and obligations, feel disconnected
and isolated and may have less access to support and advice regarding their working conditions. It should be noted
that there are broader challenges associated with the availability of health services within remote communities.
Some examples of changes that could better accommodate remote work and working outside ‘traditional’ work
hours are:
a. enabling access to benefits and services with a focus on worker health, wellbeing, recovery and return to
work
b. simplifying, as far as practicable, the legislative framework and the claims process
c. access to early intervention and rehabilitation programs to support recovery to health and, where
appropriate, recovery at work or reintegration into the workforce at any capacity
d. clear definitions of employment and worker within the SRC Act that consider non-traditional employment
relationships and hours of work
e. ensuring that workers are advised of their rights to make claims
f. providing alternative means to submit documentation.

6. What changes are required to the In relation to workers with complex psychological claims, as well as the broader improvements to the scheme to
Comcare scheme to better manage improve accessibility and administrative efficiency raised in our responses, Comcare suggests the following may
complex psychological claims? better support these workers and the management of complex psychological claims:
a. clarifying the legislative test to require a direct causal link between work and a psychological injury

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 7
Ensuring the scheme is responsive to changing workforce conditions
b. ensuring timely access to psychological treatment and support, including through early intervention and
provisional liability
c. alternative return to work opportunities across the scheme and employment market
d. establishment of a scheme-wide accredited panel of appropriately experienced and qualified medical and
allied health professionals to provide clinical and rehabilitation support for claims managers and
rehabilitation case managers who manage complex psychological claims (that is, ensuring early
intervention that aligns to best practice treatment approaches).
Other responses that are relevant to this question include:
a. changes that would better support workers with psychological injuries and illnesses at question 12
b. potential changes to the Comcare scheme in respect to determining psychological injury at question 36
c. capabilities of claims managers addressed at question 14
d. improvements to the rehabilitation and return to work provisions at question 10
e. providing workers with options including lump sum payments to finalise their claim at questions 13 and 44.

7. What changes are required to the On 25 September 2024, Finity Consulting (a strategic analytics firm) published the Climate transition risks:
Comcare scheme to respond to Implications for Workers’ Compensation news item.
climate change risks?
While the future impacts of climate change on the workers’ compensation setting are not fully understood, the
publication provides 4 main impacts of climate transition to workers’ compensation schemes:
1. Changes to the types of work may change the profile of workers’ compensation claims.
2. Workers in some industries may face increased health risk associated with increasing frequency of extreme
weather events (i.e. heatwaves, floods and bushfires).
3. Challenges with transitioning workers into new industries for sunsetting industries (that is, return to work
challenges or spike in claims for those close to retirement age).
4. Changing mix of occupations changes the risk profile of the scheme.
Comcare refers to its response to question 4, above, and notes that the flexibility enabled by best practice scheme
guidance or subordinate legislation may support the scheme’s ability to quickly adapt and respond to changing
conditions.

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Employees’ experience of the scheme (ToR 2)
Improving health outcomes for injured workers
Question Comments

8. What is your claim experience? Comcare will not provide a response to the question as it relates to individual claim experience.
Positive, negative or neutral?

9. Explain what aspects of the The Comcare scheme is a no-fault long tail workers’ compensation scheme.
Comcare scheme work well? For
A feature of the Comcare scheme is the establishment of Comcare, which has roles as a claims manager and
example, early intervention
scheme administrator. Comcare is also the Commonwealth work health and safety regulator. This structure enables
initiatives, the claim-making
Comcare to influence the health and safety of workers through prevention, rehabilitation, and return to work, and
process, rehabilitation, return to
provides a ‘wrap around’ perspective of workplace injuries and workers’ compensation.
work support.
The following outcomes reflect some of the key aspects of the scheme that work well:
a. over the past 10 years, and as set out in the Issues Paper, Comcare’s data indicates that there has been a
reduction in the incidence of accepted claims and serious injuries
b. an 89% return to work rate (in 2023–24 with similar results in previous years) – the highest return to work rate
in the country
c. an average premium rate of 0.84% of payroll in 2023–24 – the lowest in the country.
These outcomes have been achieved through:
a. Comcare’s focus on preventing work related injuries through its WHS regulation role
b. Comcare’s focus on rehabilitation and return to work – while Comcare is not the rehabilitation authority
within the Commonwealth premium paying setting, we work closely with Commonwealth rehabilitation
authorities to support and influence return to work outcomes for Comcare managed claims (see more detail
on this point at question 10) and with the scheme more generally (including licensees) to uplift rehabilitation
capability
c. scheme design – there is benefit in having coverage under both the WHS Act and SRC Act with the
continuum of prevention through to rehabilitation and return to work.
While Comcare has achieved these strong outcomes, there continue to be challenges, including among other
things, the rise in psychological injury claims in the scheme. Comcare’s Strategic Priorities 2024–28 are focused on
preventing work related injuries and delivering better return to work outcomes, particularly in the psychological
claim context.

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Improving health outcomes for injured workers
10. What changes to the Comcare In the Comcare scheme, the rehabilitation authority (which is usually the employer, that is, a premium paying entity
scheme would better support or self-insured licensee) is responsible for managing the rehabilitation and return to work of a worker with a work-
recovery and wellbeing and improve related injury or illness.
return to work outcomes?
Comcare works with rehabilitation authorities to deliver guidance and initiatives (for example, forums and written
guidance) that support workers to remain and return to work safely and to minimise the severity of injuries and their
duration. Comcare has various functions under the SRC Act including compliance activities with respect to
workplace rehabilitation providers (WRPs), premium setting, providing expert advice and services, and claims
management services for premium paying agencies.

As mentioned at question 9, the Comcare scheme has achieved high return to work outcomes when compared with
other schemes across the country. However, given the stabilisation of these return to work rate results over the last
several years, the significant change in the nature and types of claims, the increase in claims for psychological
injuries, and reduction in physical injuries, there is opportunity for renewed focus on changes needed to the scheme
to better support recovery and wellbeing and improve return to work outcomes.
The following changes to the legislative framework could better support recovery and wellbeing and deliver better
return to work outcomes:
a. providing legislative authority for Comcare to pay, at a minimum, some rehabilitation and medical costs, not
contingent on acceptance of liability or statutory timeframes (that is, provisional liability)
b. remove limits on the return to work options for workers (that is, expanding the current definition of suitable
employment in the current legislation to recognise the diverse needs and experiences of injured workers and
provide for a broader range of return to work options across the national employment market)
c. supporting the consistency of the skill base of rehabilitation case managers (see response at question 14)
d. strengthening the obligations on, and incentives (including penalties) for, employers to provide effective
early intervention, rehabilitation and return to work
e. to avoid confusion about the role of the rehabilitation authority and the treating medical practitioner, amend
the definition of rehabilitation program to remove ‘treatment.’ This will also support evidence-based practice
and better outcomes for workers (refer to our response at question 41).
Additionally, the below changes to the legislative framework to better support recovery and wellbeing and deliver
better return to work outcomes would need to include consideration of the cost impacts to Comcare, and funding
needed to support this approach:
a. strengthening the powers of Comcare under the SRC Act to improve compliance and performance
monitoring of rehabilitation authorities. This could include development of a return to work inspectorate
within Comcare (recommendation 6.20 of the Hanks review supports this approach).

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Improving health outcomes for injured workers
b. for premium paying Commonwealth Agencies, providing a mechanism to allow Comcare, or another third-
party provider, to become the rehabilitation authority or to allocate rehabilitation authority powers in
instances where there are barriers to effective rehabilitation. Such instances may include:
i. smaller agencies who may lack capability, resourcing and suitable employment opportunities to
support recovery and return to work
ii. claims where there is a breakdown in the worker/employer relationship
iii. complex psychological conditions
iv. claims with a stagnated recovery
v. when a worker is aligned to a new agency due to machinery of government changes
vi. at the request of the employer and/or worker.

11. What changes to the Comcare Scheme changes to support workers and their families in the instances of serious injury, illness and death are
scheme would better support considered in more detail within the entitlements section of this submission (refer to questions 40, 43 and 44).
workers with life-changing injuries
The SRC Act workers’ compensation scheme does not operate in isolation. A worker impacted by life-changing
and illnesses?
injuries and illnesses may need to interact with other support services, potentially across different types of workers’
compensation, personal insurance and social welfare schemes.
A revised legislative framework is needed that:
a. is integrated with other statutory schemes and compensation bodies (within the Commonwealth, states and
territories) to ensure consistency and coordination, for example, disability and discrimination payments.
b. is aligned with Government policy in related areas such as social security, workforce participation and the
National Disability Insurance Scheme
c. allows for greater sharing of information with other bodies, including personal injury schemes and WHS
bodies with the aim of better support for injured workers with life-changing injuries and illnesses.

12. What changes to the Comcare The following changes would better support workers with psychological injuries and illnesses:
scheme would better support
a. providing clarity around access to entitlements under the legislation and a focus on minimising disputation
workers with psychological injuries
b. ensuring legislation supports early identification and access to best practice mental health support for
and illnesses?
psychological injuries
c. provision for access to acute/immediate psychological services in circumstances where the claim may not
yet be determined
d. clear legislative authority and funding for scheme advocates, or social or support workers as described at
question 3

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Improving health outcomes for injured workers
e. providing supports for family members impacted by psychological injury, recognising the broader impact of
workplace injury.

13. What changes to the Comcare Comcare is supportive of a legislative framework that provides best practice workers’ compensation supports for
scheme would better support workers and families of workers who have suffered serious injury, illness or death as a result of work-related injury.
families of workers who have
Comcare has addressed this matter in detail within several ‘scheme entitlements’ discussion questions, including
suffered serious injury, illness or
support for the legislative framework providing for injured workers to have the option to receive a lump sum payout
death?
to exit the scheme at question 44.
The scheme advocate role, described at question 3, is also a change that may support families of workers who have
suffered serious injury, illness or death.

14. Do you have any suggestions for Claims managers assess and manage claims for compensation. The claims manager plays an important role in
improving and building the working with an injured worker and their employer, treating medical practitioner and rehabilitation case manager to
competencies of claims managers? support return to health and where possible, to safely remain at or return to work.
The nature and complexity of the claims manager role is increasing due in part to changes to the nature of work and
rise of work-related mental injury claims which are characterised by complexity in identification and management,
longer duration compared to physical injury conditions, and community expectations on client experience.
The claims manager relationship with an injured worker is integral to the experience of the injured worker through
the claims process. Effective and proactive management of claims includes recognising the importance of the
biopsychosocial approach and early intervention, and capabilities in the various ‘soft’ skills (that is, empathy,
resilience, sound judgement, effective stakeholder management) required by claims managers.

Experiences and outcomes of specific groups
Question Comments

15. What is the claim experience for Comcare collects some diversity related data, including in relation to First Nations workers and other diverse worker
women, First Nations workers, older groups, noting it is optional for workers to provide this data. Data in relation to the experience of injured workers
workers or other diverse worker through the compensation process is limited and has been identified as an area to develop as part of the Comcare
groups? Strategy 2024–28.
The data (to the end of 2023–24) shows that:

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 12
Experiences and outcomes of specific groups
a. female workers generally have a lower incidence rate of injury (7.7 injuries per 1,000 Full-time equivalent(s)
(FTE(s))) compared to male workers (12.4 injuries per 1,000 FTE)
b. female workers experience a higher incidence of psychological claims (1.3 accepted claims per 1,000 FTE)
when compared to male workers (1.1 accepted claims per 1,000 FTE)
c. older workers are more likely to be injured in the workplace, the highest incidence of claims accepted has
been in the 55+ age group over the last 5 financial years (18.5 claims accepted per 1,000 FTE).
The panel may want to consider more generally the experience of diverse worker groups within a workers’
compensation setting by considering relevant articles, inquiries, or academic studies with this focus:
a. The Willing to Work: National Inquiry into Employment Discrimination | Australian Human Rights
Commission which considered employment discrimination against older Australians and Australians with
disability.
b. Workers compensation and our ageing workforce – Taylor Fry suggests Governments could consider
scheme changes to better address the needs of an ageing workforce.
c. Research study Australian workers’ understanding of workers’ compensation systems and their
communication preferences report included Australian workers from diverse groups ( that is, First Nations,
workers in regional and remote communities, youth and casual workers, culturally and linguistically diverse,
new migrant and refugee workers, and vulnerable people).
d. Study on Women's Experience of the Workers' Compensation System in Queensland notes there are many
opportunities for improvement to the workers’ compensation system.
e. The RACP It Pays to Care report acknowledges health services are more effective when the needs of
culturally and linguistically diverse workers are recognised and addressed.
f. It is also worth noting that Monash University are currently undertaking a research project on Workers' Voice
– Reimagining Workers’ Compensation in Australia to improve the management and design of workers'
compensation systems to better support workers who have been injured.
g. Safe Work Australia workers’ compensation data provides opportunities for observations into the different
work-related injury and illness outcomes across remoteness areas.

16. What aspects of the Comcare Please refer to Comcare’s response at question 15. Note, there is limited data collected in respect to the positive
scheme work well for diverse aspects of the scheme for the diverse worker groups mentioned at questions 15.
groups?

17. What changes are required to the Comcare supports all workers covered by the scheme accessing appropriate entitlements and supports to recover
Comcare scheme to ensure injured from work-related injury. The response at question 2 is relevant here, particularly in relation to accessibility,
efficiency and transparency. The scheme advocate role described at question 3 is also relevant.

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Experiences and outcomes of specific groups
workers with diverse backgrounds or
needs receive appropriate support?

Scheme coverage (ToR 3)
National coverage of private sector employees
Question Comments

18. What are the risks and issues that As highlighted within the Issues Paper, the coverage of the Comcare scheme has changed from a scheme solely for
arise from current coverage of the Australian Government workers when the SRC Act was first introduced in 1988 to the mixed coverage of Australian
Comcare scheme? Government, ACT Government and private sector workers seen today. Despite this change in coverage under the
SRC Act, the structure of the legislation remains largely unchanged, particularly in relation to benefits and
governance. Any redrafting of the SRC Act undertaken in response to panel recommendations should reflect the
change in scheme coverage.
In addition to SRC Act considerations, there is currently inconsistent coverage under the Comcare scheme where
workers employed by some self-insured licensees are not covered by the WHS Act, but rather by state or territory
WHS laws. This results in challenges for workers and self-insured licensees due to increased regulatory burden and
potential inconsistency in law or regulatory approach. In addition, this structure impacts Comcare’s ability to
influence prevention and WHS outcomes for these workers and to have a comprehensive overview of the scheme.
These risks and issues are discussed further below.
Comcare acknowledges that changes to WHS law coverage would require extensive consultation across the
harmonised jurisdictions and may also cause financial impacts for the states and territories. However, as discussed
below, Comcare also notes that health and safety outcomes may be more holistically addressed through coverage
under both the SRC and WHS Acts.

Current coverage in the Comcare scheme
In the Comcare scheme there are workers that are covered under:
a. the SRC Act but not under the WHS Act
b. the WHS Act but not under the SRC Act
c. both the SRC and WHS Acts.

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National coverage of private sector employees
On 30 June 2024, Comcare’s scheme was comprised of 472,079 FTE workers covered under the SRC Act and
441,851 FTE under the WHS Act.
In relation to the workers covered under the SRC Act, 44.75% (211,203 FTE) are Australian Government workers and
55.25% (260,876 FTE) are workers of self-insured licensees.
In relation to the workers covered under the WHS Act, 47.90% (211,678 FTE) are Australian Government workers,
38.45% (169,843 FTE) are workers of self-insured licensees, and 13.65% (60,330 FTE) are Australian Defence Force
workers.

Risks, issues and considerations
Coverage under the SRC Act and the WHS Act provides for consistency for workers and employers, no matter where
they are working and operating in Australia.
Since the implementation of the WHS Act on 1 January 2012, new self-insurers are not automatically covered by the
WHS Act, while those that joined prior are covered under the WHS Act. There are currently 39 self-insured licensees
within the scheme. Ten (10) of these self-insured licensees are not covered by the Commonwealth WHS laws and
are regulated by state and/or territory WHS regulators. Accordingly, they may be required to comply with up to 8
differing WHS regimes across all jurisdictions.
This approach creates inconsistency for those under the Comcare scheme, for example:
a. While most WHS jurisdictions have adopted the model WHS laws, Victoria has not. Further, there are some
variations to the harmonised WHS laws adopted in jurisdictions, and the practical regulation of these laws
can vary across jurisdictions. These differences may create gaps in coverage and compliance requirements.
b. Navigating the requirements of a consistent approach to workers’ compensation and varying WHS laws for
employers that operate in multiple jurisdictions can be complex.
c. Ensuring compliance with WHS regulations that differ across jurisdictions can be costly and can create
regulatory burden, requiring significant administrative and legal resources.
d. Implementing safety standards across diverse and geographically dispersed workplaces can be challenging,
particularly for large employers that operate in multiple jurisdictions.
e. While the incident notification provisions are consistent across jurisdictions, differences in incident
reporting mechanisms between Comcare and state/territory regulators may complicate the management of
workplace incidents.
Comcare notes the impact that self-insurance licensing arrangements of private sector corporations moving to the
Comcare scheme may have on state and territory schemes as set out in the Issues Paper. Comcare is also aware of
challenges, addressed within the ‘governance arrangements’ (ToR 4) section of this submission, for the Safety,

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 15
National coverage of private sector employees
Rehabilitation and Compensation Commission (SRCC) to regulate or make decisions if there were more entities
covered by the SRC Act.

19. Is it still appropriate for the Comcare Comcare is well placed to continue to perform its role and functions under both the SRC Act and WHS Act to
scheme to be the pathway to a support a scheme that includes national private sector employers.
national scheme for private multi-
Comcare notes the following relevant information:
state employers? Apart from
Australian Government entities and a. the Comcare scheme currently has a diverse range of employers and industry types (including defence,
companies who should have access police, education, nursing, construction, banking, logistics, telecommunications) and coverage
to the Comcare scheme? Give arrangements (as outlined in question 18 response)
reasons. b. Comcare has the capacity and capability to identify and respond to particular risks from a regulatory
perspective, including the standing up of specific teams dedicated to those risks, for example, the Major
Infrastructure Projects team (for large construction projects) and the Telecommunications Asbestos Safety
Compliance team. Comcare also has a defined and dedicated approach to regulation of the heavy transport
sector.
c. some self-insured licensees have only ever been covered under the Commonwealth workers’ compensation
and work health and safety legislation
d. the SRC Act (and the Commonwealth WHS Act) provides for consistent national coverage for workers and
employers under these Acts
e. for workers, this means consistent legislation and benefits no matter where they are working in Australia
f. for employers, this reduces the burden and costs associated with complying with multiple Acts across
multiple jurisdictions.

20. What criteria should apply for Should there be a decision by government to allow corporations to join the Comcare workers’ compensation
corporations to join the Comcare scheme (as self-insured licensees), and that decision was based around the entity being a national employer or an
scheme? employer that operates nationally, Comcare considers the general principles that could apply in order to be able to
meet the requirements of holding a self-insurance licence are:
a. the corporation should be operating in at least 2 states/territories; and
b. the corporation should meet certain FTE size threshold; and
c. the corporation should meet certain financial thresholds; or
d. if a corporation does not meet the above criteria in respect to geographic footprint, size or financial
threshold but is a subsidiary of an entity already in the scheme.
It is a decision for government as to whether the scheme should remain restricted by the competition test, as it
currently is, that is, to those corporations in competition with a current or former Commonwealth Authority.

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 16
National coverage of private sector employees
Groups and employers that may benefit from access to a national workers’ compensation scheme include:
a. large national employers that operate across multiple states/territories
b. industry sectors with high mobility (across multiple states/territories)
c. employers involved in national security.

Work health and safety coverage
Question Comments

21. What are the implications for non- The explanatory memorandum to the bill that became the Work Health and Safety Act 2011 notes that the WHS Act
Commonwealth licensees in was intended to apply to non-Commonwealth licensees for a transitional period. This was so that duplicate WHS
maintaining or ending the obligations would not arise under corresponding state or territory WHS laws because WHS laws were intended to be
transitional period for their coverage harmonised across all Australian jurisdictions. However, while WHS harmonisation has largely been achieved, not
under the WHS Act? all jurisdictions have adopted the model WHS laws, and the transitional period has not ended.
Should the transitional period be maintained the situation remains where some licensees are covered under the
WHS Act, and some are not (refer to response at question 18 on the risk and issues associated with this).
If the transitional period ends and coverage of non-Commonwealth licensees is returned to states and territories,
they may be subject to variations of WHS laws depending on the jurisdiction(s) in which they operate, resulting in
one or more of the following impacts:
a. complexity associated with operating in multiple states under different legal requirements
b. inconsistencies or variations in the laws can lead to confusion and potential non-compliance, increasing the
risk of legal penalties
c. managing compliance across different jurisdictions can require more administrative resources and costs
d. different safety standards can lead to inconsistent safety practices, potentially increasing the risk of
workplace accidents and injuries
e. differences in WHS laws can affect insurance policies and premiums, potentially leading to higher costs or
coverage issues
f. different reporting requirements can complicate the process of managing and responding to workplace
incidents.

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 17
Work health and safety coverage
Operationally, a reduction of over 38% (169,843 FTE) of workers covered under the WHS Act would have a significant
impact on Comcare’s current regulatory operations, including, but not limited to, its ability to sustain a permanent
regional presence.

22. Should self-insured licensees be Comcare is well placed to regulate private sector employers under the WHS Act which is demonstrated through our
regulated by Comcare under regulation of the variety of entities and risks presently covered under the WHS Act.
Commonwealth WHS laws, or state
and territory WHS laws and
regulators? Please give reasons.

Governance arrangements (ToR 4)
Best practice governance, regulation and oversight
Question Comments

23. Does the SRC Act suitably define the The SRC Act workers’ compensation scheme, with both Comcare and the SRCC established by the SRC Act and
roles and responsibilities of: having roles within the scheme, is unique and there is no equivalent in any other scheme in Australia.
• Comcare?
• SRCC? Comcare
Comcare is a corporate Commonwealth entity, constituted by the Chief Executive Officer (section 74(1A) of the SRC
Act), and has clear governance, performance and accountability requirements under the Public Governance,
Performance and Accountability Act 2013 (PGPA Act) and Public Governance, Performance and Accountability Act
Rule 2014 (PGPA Rule). Comcare prepares its own Corporate Plan and reports on outcomes through its Annual
Report which includes Annual Performance Statements and Financial Statements.
Comcare is a government body and does not undertake commercial activities for profit. Comcare is primarily
funded through cost recovery arrangements from Commonwealth entities and self-insured licensees.
Comcare’s CEO is the accountable authority and reports directly to the Minister. Comcare’s CEO has established an
Audit and Risk Committee consistent with the requirements of Section 45 of the PGPA Act, section 17 of the PGPA
rule and guidance issued by the Department of Finance. Under its Audit and Risk Committee Charter – 2024, the
Committee has broad responsibility to provide independent advice and assurance to Comcare’s CEO in relation to

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 18
Best practice governance, regulation and oversight
Comcare’s financial reporting, performance reporting, systems of risk management, internal controls, and internal
and external audits.
Comcare has a range of roles under the SRC Act (and other legislation) as claims manager, insurer, scheme
manager and regulator:
a. claims manager: Comcare manages claims for Australian Government agency workers, the liability for
common law asbestos-related conditions under the ARC Act and administers the PICS instrument
(providing injury compensation coverage for Australian Government parliamentarians and the Prime
Minister’s spouse)
b. insurer: Comcare sets and collects premiums specific to each Australian Government agency to meet
Comcare’s claims liability and claims administration costs
c. scheme manager: Comcare monitors and maintains legislation and develop policy and guidance covering
the scheme (including premium paying agencies and self-insured licensees) that sets clear expectations of
roles and obligations of stakeholders in the workers’ compensation process, promotes better practice and
creates effective early intervention and return to work practice and outcomes
d. regulator: Under the SRC Act Comcare regulates workplace rehabilitation providers (WRPs) and has some
(limited) regulatory role in relation to workplace rehabilitation.
Comcare’s functions are set out at section 69 of the SRC Act. Comcare has a legislated role to provide secretarial
and other assistance and make available the services of such members of its staff and other such resources, as
required by the SRCC and the Seafarers Safety, Rehabilitation and Compensation Authority to fulfil their respective
functions (subsections 72A(1) and (2)).
Comcare is also the WHS regulator for the purposes of the Commonwealth WHS Act (section 4 of that Act).

SRCC
The SRCC has no specific status under the PGPA Act (it does not have an identify distinct from the Commonwealth
for the purposes of the PGPA Act), it has no clear accountable authority, has no staff, and has no resources or
budget of its own. As a result, the SRCC does not have the same level of accountability and reporting obligations
that Comcare and other Commonwealth agencies do; under the SRC Act (section 89S) the SRCC is required to
publish an annual report, which it currently does in conjunction with the Comcare annual report.
The SRCC administers functions under the SRC Act, other than those functions attributed to Comcare. The SRCC’s
primary role under the SRC Act is to grant and regulate self-insurance licences (Part VIII of the SRC Act). The
functions and powers of the SRCC include, but are not limited to:

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 19
Best practice governance, regulation and oversight
a. to ensure that, as far as practicable, there is equity of outcomes resulting from administrative practices and
procedures used by Comcare and a licensee in the performance of their respective functions (subsection
89B(a))
b. to advise the Minister about anything relating to the operation of this Act or to the Commission’s functions
and powers (subsection 89B(b))
c. issue to the Chief Executive Officer written general policy guidelines in relation to the operation of this Act or
any other Act (except the Asbestos‑related Claims (Management of Commonwealth Liabilities) Act 2005 or
the Parliamentary Business Resources Act 2017 to the extent that the Act confers functions or powers on
Comcare (subsection 73A(1), the SRCC also has a similar power in relation to licensees – refer subsection
73A(2))
d. review, at the request of an agency, Comcare’s review of a premium or regulation contribution
determination, or the determination as so varied, and must decide either (subsection 97K(3))
e. estimate and set licence fees (section 104A).
The SRCC has the power to delegate all of its functions under the SRC Act (including those relating to issuing
guidelines to Comcare) to the CEO of Comcare, who may then delegate to Comcare staff. The SRCC has chosen to
delegate to Comcare’s CEO its function of estimating and setting licence fees.
The SRCC has functions under the WHS Act (refer Schedule 2 Part 2), including but not limited to:
a. to advise the Minister on the administration of the WHS Act
b. to provide a forum for consultation between Comcare and persons conducting businesses or undertakings,
workers and the bodies that represent them.
As the Issues Paper notes, the SRCC has a role in overseeing Comcare, however the scope of this role is unclear.

Broadly, Comcare considers that there is an opportunity to further define the roles of Comcare and the SRCC that
may promote role clarity and efficiency, noting the unique governance arrangement and relationship between the 2
entities created under the SRC Act. Comcare would be pleased to meet with the panel to further discuss the detail
of its experience of some of the practical issues under the current legislative framework, as they relate to the roles
and responsibilities of Comcare and the SRCC.

24. What governance framework is There are different governance arrangements for workers’ compensation schemes Australia wide and
needed to provide high-level internationally. The review may wish to consider the strengths and weaknesses of the different models.
oversight of Comcare? For example,
Options in relation to a governance framework for the SRC Act workers’ compensation scheme include, but are not
a governing or advisory board? What
limited to:
requirements should apply to any

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 20
Best practice governance, regulation and oversight
members of such a group, for a. Keep the status quo, with Comcare and the SRCC each responsible for clearly defined aspects of the
example relevant expertise or scheme.
representation or both? b. A governance board to which the CEO would be accountable – this option would need to be considered
carefully in terms of Comcare’s existing governance and accountability mechanisms as a corporate
Commonwealth entity. A separate body responsible for issuing and regulating self-insurance licences may
not be required under this option.
c. Establish an advisory board to Comcare – with the powers and functions of the SRCC transferred to
Comcare.
d. Consolidate the SRCC and Comcare as a board/authority with the Chair of the board/authority appointed as
the CEO or equivalent.
There are strengths and weaknesses for each of these options, and each option would need to be considered
carefully in the context of Comcare’s role as regulator under the WHS Act.

25. What changes are required to ensure The SRC Act provides a limited suite of regulatory powers in relation to self-insurance licences under the SRC Act,
the SRCC has the powers and other than the granting, suspension and revocation of a licence. There are limited powers and capacity to conduct
responsibilities to effectively an investigation in relation to a licensee’s conduct or non-compliance, to compel a licensee to act and limited
regulate self-insurance licensees penalties where a licensee does not comply.
and the public sector?

26. Does the existing framework provide Comcare has provided comments in relation to regulatory arrangements including oversight, monitoring,
appropriate oversight and compliance and reporting for:
monitoring, compliance and
a. Comcare (see responses at questions 23 and 24)
reporting arrangements for:
b. self-insured licensees (see responses at questions 23, 24 and 25)
• Comcare? c. delegated claims management arrangements (see responses at questions 59 and 60)
• Self-insured licensees? d. rehabilitation authorities (see response at question 10)
• Delegated claims management e. WRPs (see response at question 51)
arrangements (see 3.7)? f. medical and allied health (see responses at questions 36, 41 and 42)
• Rehabilitation authorities? g. attendant care services (see response at question 41).
• Workplace rehabilitation and
other service providers?

27. Are the Hawke and Hanks Review As articulated throughout our responses (that is, questions 6, 10, 23, 28, 30, 49, and 53), Comcare considers there
recommendations still relevant for is a need to update the legislative framework to support improved return to work outcomes, consistent with
rehabilitation governance including Comcare’s 2024–28 key strategic priorities.
introducing an auditing program for

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 21
Best practice governance, regulation and oversight
rehabilitation authorities; creating a In relation to the Hawke and Hanks recommendations specifically:
return-to-work inspectorate;
a. rehabilitation audit programs for rehabilitation authorities, Comcare’s strategic priority is to deliver better
penalties for failures to meet
return to work outcomes and is supportive of the introduction of a rehabilitation audit program for
rehabilitation responsibilities under
rehabilitation authorities (noting there is a program for self-insured licensees already) to the extent that it
the scheme; and the ability to
achieves this strategic priority
approve or accredit all providers
b. creating a return to work inspectorate, Comcare is supportive of a strengthened regulatory role, including the
operating in the scheme?
option of a return to work inspectorate (refer to our response at question 10)
c. penalties for failures to meet rehabilitation responsibilities, Comcare is supportive of improvements to the
legislative framework that support compliance with rehabilitation responsibilities (refer to our responses at
questions 10 and 23)
d. ability to accredit all providers operating in the scheme – Comcare considers that there is a need to ensure
that, as far as practicable, only relevantly accredited providers operate within the scheme to ensure high
quality of service is provided to injured workers.

Financial management and viability
Question Comments

28. What changes are required to the The long-term financial sustainability of the scheme is dependent on reducing injuries and improving return to work
Comcare scheme to ensure future outcomes for injured workers. It is imperative that Comcare has the ability to collect, invest and spend monies to
scheme financial sustainability? support it to achieve its legislative objectives and functions, including the continued investment in proactive
prevention, research and technology systems that support improved service delivery.
As the Issues Paper notes, the Comcare scheme generally operates on a user-funded (that is, cost recovered)
model:
a. premiums are charged to Commonwealth agencies for the costs of workers’ compensation claims
b. regulatory contributions and licence fees are charged for the costs incurred by Comcare and the SRCC in
fulfilling their respective regulatory functions under the SRC Act and WHS Act (where applicable).
Broadly speaking, the premium liability and prudential framework as set out in the legislation provides the
appropriate levers and mechanisms through which Comcare can charge premiums that respond to the claims
experience in the scheme, ensuring the premium scheme is funded for the liabilities incurred as well as the costs
incurred in maintaining the scheme. Any recommendations made by the panel to change the scheme should
consider the above-mentioned user-funded model.

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 22
Financial management and viability
Opportunities to strengthen legislation to ensure future scheme financial sustainability include, but are not limited
to:
a. access to the Commonwealth-retained Funds which Comcare can then invest to achieve higher investment
returns (see our response to question 29)
b. an appropriation from Government (separate from the monies received through premiums and other cost
recovery arrangements) to fund the cost of specific and proactive prevention and rehabilitation and return to
work related activities to support improvements in those areas that benefit the whole scheme
c. expressly articulating that Comcare can collect and use premiums and interest earned on those premiums
for activities that support improved prevention and rehabilitation and return to work.

29. Is the scheme’s approach to Generally, the prudential management arrangements for the scheme are adequate, however there are opportunities
prudential management adequate to improve these arrangements.
for Comcare’s compensation
In relation to the premiums that have been collected by Comcare, there are 2 separate funds established by the SRC
liabilities? If not, what alternatives
Act.
do you suggest?
The first is Comcare-retained funds which is defined by subsection 90C(5) of the SRC Act. Comcare investments of
Comcare-retained funds must adhere to the legislative authority conferred under section 91 of the SRC Act to invest
money that is not immediately required for Comcare’s purposes, in accordance with section 59 of the PGPA Act.
Under section 59 of the PGPA Act, Comcare’s ability to invest is limited to low risk and generally lower return
options, including but not limited to:
a. on deposit with a bank, including a deposit evidenced by a certificate of deposit; or
b. in securities of, or securities guaranteed by, the Commonwealth, a state or a territory.
The second is the Commonwealth-retained funds representing a notional balance of unused premiums retained in
consolidated revenue from the period 1988 to 2002, prior to Comcare retaining premium payments. The
Commonwealth-retained funds is payable to Comcare after it has exhausted all its retained funds in accordance
with subsection 90C(2) of the SRC Act. These funds are held with the Australian Government earning notional
interest at a rate set by the Safety, Rehabilitation and Compensation (Notional Interest) Determination 2022 made by
the Minister of Finance under subsection 90C(3) of the SRC Act.
In relation to Comcare-retained funds, having the ability to invest in a broader range of investment types may mean
that Comcare has greater returns which may be able to be used to lower premiums or to invest in proactive and
preventative activities for the benefit of the whole scheme.

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 23
Financial management and viability
In relation to the Commonwealth-retained funds, Comcare has (refer to our response at question 28) put forward an
option, among a range of options, to have access to the Commonwealth-retained funds to achieve higher
investment returns.

30. Should Comcare be able to access, Yes, Comcare should be able to access, invest and use money from premiums to fund proactive activities that
invest and use money from support improved prevention of workplace injuries and deliver better return to work outcomes. See our response to
premiums to fund proactive question 28.
activities?

31. Are changes required to the licence Comcare’s cost recovery activities are subject to the Public Governance, Performance and Accountability (Charging
fee setting provisions under the SRC for Regulatory Activities) Order 2017 (Order) and align with the Australian Government Cost Recovery Policy 2014
Act to allow for effective and and Charging Framework 2015. These fees represent the costs incurred by the SRCC and Comcare in carrying out
efficient cost recovery? their respective functions under the SRC Act and WHS Act. The SRCC has delegated all of its fee setting functions to
Comcare.
Under the SRC Act, there are legislative limitations in relation to regulatory contributions and licence fees, including:
a. only allowing for one fee to be paid per year
b. not allowing for adjustment of fees in previous years
c. only allowing for fees to be based on the estimated costs incurred in the financial year.
These limitations broadly mean that the SRCC and Comcare are bound by licence fee decisions on a financial year
basis, with no ability to adjust fees based on changes to a regulated entity’s situation. This makes it more difficult to
plan and prioritise programs of work and capital investments with a longer-term view and should be addressed as
part of any legislative reform.
Some consideration should also be given to expressly providing for the charging of activities as they occur, for
example, charging for an audit or an inspection at the completion of that activity.

Social partner involvement and tripartism
Question Comments

32. Are the requirements under the SRC Comcare notes that the consequential amendments made to the SRC Act, with the commencement of the
Act for membership of the SRCC Commonwealth WHS Act in 2012, removed the Comcare CEO as an ex-officio member of the SRCC. Despite not
appropriate? being a member listed in section 89E of the SRC Act that sets out the constitution of the SRCC:

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 24
Social partner involvement and tripartism
a. the CEO is a member for the purposes of section 89M which relates to disclosure of interests
b. the CEO is a member for the purposes of section 89Q which, among other things, means that the CEO has a
decision-making role at SRCC meetings and has the potential to be nominated to be the Chair of a meeting,
but does not contribute to a meeting quorum
c. the CEO’s appointment as the CEO can be terminated for being absent from 3 consecutive meetings
(section 84(2)c)).
Other anomalies that have emerged over time in relation to the membership of the SRCC include:
a. Defence Force member – this role existed when the SRCC had a regulatory role under the previous WHS Act,
much of which related to Department of Defence activities. Since the change in WHS legislation, this role
has remained vacant.
b. ACT Government member – this role was in place before the ACT became a licensee; now it has the effect of
one licensee having a member on SRCC (compared to the one member representing all licensees).
Pending consideration of the broader governance arrangements for the scheme, these anomalies should be
corrected as part of any legislative update. As part of any review and update of membership of the Commission,
consideration should also be given to ensuring there is appropriate balance between employer and worker
representatives, and members with specialist expertise.

33. Are the arrangements for tripartite Comcare supports tripartite involvement in the workers’ compensation and work health and safety frameworks.
involvement under the WHS Act and Comcare notes that the SRCC is a tripartite body. In addition, Comcare takes proactive steps to foster and enable
SRC Act adequate? If not, what tripartite involvement in relation to its administration of the 2 legislative frameworks, conducting regular forums with
additional arrangements are unions, premium payers and licensees, and consultations on specific issues.
required under the SRC Act?
Comcare considers that the current arrangements under the WHS Act and SRC Act, in relation to tripartism, are
effective.
Consideration of changes to governance arrangements in the scheme, including tripartism, must be mindful that, to
ensure the effective and efficient operation of the scheme, tripartism is factored into the development and
articulation of the principles of the scheme and not operational matters and decisions.

34. Do you have suggestions for Please see our response to question 33.
improvements to facilitate
tripartism within the Comcare
scheme? If so, what are they?

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 25
Scheme entitlements (ToR 3 and 5)
Eligibility for compensation
Question Comments

35. Does the definition of ‘employee’ in The concept of ‘employee’ as currently defined by the SRC Act could be broadened to include the increasing
the SRC Act reflect contemporary diversity of employment relationships in Australian workplaces. An amended definition could include premium
working arrangements? Are the payers and licensees and clarify the position of volunteers, labour hire, and contractors working for the
deeming provisions adequate? Commonwealth, Commonwealth authorities, or licensees. The definition of an ‘employee’ under the SRC Act was
also considered in the Hanks review and Comcare supports recommendation 5.1 of that review, that the definition
be amended to introduce a deeming provision applicable across the scheme, in relation to contractors. Any
recommended changes to the legislative framework in respect to the definition of ‘employee’ in the SRC Act should
consider this may increase complexity to premium setting.

36. What is best practice for Legislation should match modern work arrangements and relationships and promote safe workplace practices.
determining injuries and diseases? Shifting to a single employment connection test rather than the existing multi-test structure, would ensure a real
For example, is it still appropriate to and identifiable relationship between employment and the injury or disease. It would remove the need to distinguish
separate these conditions? Is there a between injuries and diseases, simplify the administrative process and also incentivise employers to ensure work
different approach needed for practices and locations within their control adhere to or exceed appropriate safety standards.
certain injuries, for example
Currently, sections 5A and 5B of the SRC Act together require diseases to be ‘contributed to, to a significant degree,
psychological injuries?
by employment’, and injuries (other than diseases) and aggravations of such injuries ‘to have arisen out of or in the
course of employment’, in order to be considered a broadly defined injury.
Section 6 of the SRC Act provides further assistance to clarify when injuries (other than diseases) and aggravations
of such injuries are taken to have arisen out of or in the course of employment. Section 7 of the SRC Act provides
similar assistance with respect to when diseases are taken to have been contributed to, to a significant degree, by
employment.
There are occasions where workers will be covered for injuries (other than diseases) which are deemed to have
occurred as arising out of or in the course of employment by way of section 6, but any diseases sustained in the
same circumstances may not be compensable on the basis that they were not contributed to, to a significant
degree, by employment. Examples include:
a. Injuries (other than diseases) will be compensable if sustained in an interval or interlude during an overall
period of work and:
i. for injuries that occurred by reference to an activity, the worker was engaged in an activity that the
employer induced or encouraged the worker to do, or

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 26
Eligibility for compensation
ii. for injuries that occurred at and by reference to a place, the employer induced or encouraged the
worker to be at that place.
b. Injuries (other than diseases) will be compensable where the injury circumstances are captured by one or
more of the sub-section 6(1) provisions which expand on the concept of arising out of or in the course of
employment (n.b. there are also disqualifying section 6 provisions specific to such deemed injuries).
c. Diseases in the above various circumstances may not have the requisite causal connection to employment
such as to be compensable (that is, contributed to, to a significant degree, by employment).
If the current framework for determining injuries (other than diseases), and for diseases, is retained Comcare
considers the following aspects of the current legislation require review and update:
a. provide greater clarity on the definition of a ‘place of work’ used in section 6 in order to reduce the
administrative burden on claims managers to assess whether injuries sustained in common areas such as
car parks and stairwells fall within this meaning. This may also reduce the amount of disputation associated
with the current definition.
b. provide clarity in sections 6 and 7 as to what circumstances do or do not attract a deemed finding of a
significant contribution from employment for a claimed condition. An option would be to retain, increase or
decrease the current section 6 and 7 deemed circumstances and equating them as satisfying the requisite
causal connection to employment (whether that is to a significant degree, or some other threshold, for
example, predominant contributing factor).
c. provide clarity as to the required causal connection to employment for the injury consequences of
underlying diseases such as disc prolapse (from degenerative spinal disease) or heart attacks and strokes
(from cardiovascular disease). For example, should a disc prolapse be compensable only if it is contributed
to, to a significant degree, by employment? An opportunity arises to set eligibility rules requiring a clear and
strong work relationship to establish entitlement to compensation for such conditions (contrast case law
accepting injuries such as Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31 (ruptured cerebral
aneurysm), Australian Postal Corporation v Burch [1998] FCA 944 (stroke), and Re Barnes and Comcare
[2023] AATA 1304 (angina episode)). Comcare notes that recommendation 5.3 of the Hanks review supports
this approach.
d. formally provide for the determination of secondary medical conditions that arise at the same time, or later,
because of the same workplace incident or event (contrast with case law including Canute v Comcare
[2006] HCA 47 that establishes the primacy of a single injury).
Specifically for determining psychological injury, regardless of the adoption of a single employment test, Comcare
considers the following aspects of the current legislation require review and update:
a. provide a power to make legislative instruments that provide for the assessment of psychological injury
claims by reference to evidence based diagnostic principles, such as the Diagnostic and Statistical Manual
Comcare’s submission to the SRC Act Review Issues Paper 2024 | 27
Eligibility for compensation
of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR). Assessment of psychological injury claims
continues to be a challenge, an accurate evidence-based diagnosis will support the worker to access
reasonable and necessary medical treatment for the specific condition suffered.
b. simplify the operation of the section 5A reasonable administrative action exclusion. The guidance provided
by the High Court in Comcare v Martin [2016] HCA 43, that the exclusion only applies if the injury would not
have been sustained without the reasonable administrative action, is difficult in practice to apply. A new
approach that requires only a significant contribution to be made by an excluded factor for it to exclude a
claimed condition, would support claims administration and potentially improve dispute rates. The Hanks
review pre-dates the Martin judgment, however Comcare notes that recommendation 5.5 of the review
supports a simplified approach.

37. Is there sufficient clarity as to when A single employment test approach, as described at question 36, would remove the complexities of the different
an employee sustains an injury ‘in causation tests for diseases and injuries (other than diseases).
the course of their employment’ if
A shift to a single significant employment contribution test would ensure that employment was a significant factor in
they are away from their usual place
the causation or worsening of the injury. This change would reduce the administrative burden of determining
of employment or injured during an
whether a claimed condition is a disease, injury (other than a disease), or aggravation of such an injury. Deeming
interval within their usual period of
provisions could be retained, increased, or decreased by Government to assist assessment of claims
employment?
circumstances currently referenced in sections 6 and 7.

38. Is the current threshold for liability Yes, the current threshold for liability for diseases (significant contribution test) is understandable for decision
for diseases (significant makers to identify and apply. This is consistent with Comcare’s view on a single employment connection test for all
contribution) appropriate? injury types detailed at question 36.

39. Are the current exclusions under the Comcare supports providing more clarity around the various exclusions under the SRC Act.
SRC Act appropriate?
Comcare considers that the injury circumstance exclusions in subsection 6(1C) and subsection 6(3) no longer
operate as intended (see Linfox Australia Pty Ltd v O’Loughlin [2018] FCAFC 173 where the Full Federal Court
concluded that subsection 6(3) could only apply where section 6 was relied upon as the basis for entitlement). In
most cases, injury liability is determined under section 5A of the SRC Act, and decision makers do not need to
consider the deemed injury circumstances set out in subsection 6(1). This means if liability is determined in favour
of a worker under section 5A the exclusions that disqualify compensation for an injury sustained during travel
between the worker’s place of residence and usual place of work, or injury sustained because the worker submitted
to an abnormal risk of injury, cannot be considered or applied.
Comcare supports change that displaces the subsection 14(2) self-inflicted injury exclusion in certain
circumstances. Subsection 14(2) operates such that compensation is not payable in respect of an injury that is

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 28
Eligibility for compensation
intentionally self-inflicted. The exclusion however has been found to not operate to exclude liability for any
underlying psychological condition that has been significantly contributed by employment, and then results in death
(Re Sadlo and Comcare [2005] AATA 1006). To enable clarity, consistency and simplicity in initial liability claims
decision making, Comcare supports change to the subsection 14(2) exclusion that currently explicitly carves out
intentionally self-inflicted injuries that result in death, or serious and permanent impairment.
As discussed in response to question 36, Comcare considers that application of the reasonable administrative
action taken in a reasonable manner in respect of the worker’s employment exclusion (RAA exclusion) should be
improved. It is complex to administer and continues to be the subject of dispute and judicial decision (see for
example the causation test from reasonable administrative action in Comcare v Martin [2016] HCA 43 and the
definition of administrative action in Commonwealth Bank of Australia vs Reeve [2012 FCAFC 21). The operation of
the exclusion could be simplified by:
a. making it clear that it only operates where the excluded action has contributed, to a significant degree; and
b. replacing administrative action with management action to align with the Fair Work Act 2009 definition of
‘reasonable management action’ and provide for reasonable operational employment directions.

Scheme entitlements
Question Comments

40. How can entitlements be structured Issues with the application of the entitlement provisions of the SRC Act continue to arise from a combination of
to improve outcomes for employees policy issues, questions of statutory interpretation and because modern day terms and conditions of employment
and their families? What changes do not always neatly fit within the framework.
can balance fair support while
While in some cases the entitlements provisions of the SRC Act provide an appropriate framework, there are several
ensuring the financial viability of the
categories of entitlements that require a fundamental update to improve outcomes for workers and their families
Comcare scheme? For example,
while ensuring the financial viability of the scheme, these include:
should changes be made to the step-
down provisions or the duration of a. incapacity
payments? b. permanent impairment and non-economic loss (see question 42)
c. death
d. medical expenses (see question 41)
e. household services and attendant care services (see question 41)

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Scheme entitlements
f. alteration of the workers’ place of residence or work, modifications of a vehicle or article used by the worker
and any aids or appliance for the use of the worker (see question 43).

Injuries resulting in incapacity
Comcare considers that the incapacity provisions of the SRC Act no longer reflect contemporary workplace
remuneration arrangements. The provisions may lead to unfair or unequitable results and may hinder return to
health, and where possible, return to work.
The Hanks review considered the incapacity provisions in detail and many of the recommendations made in the
report remain relevant today. Comcare supports consideration of those recommendations that simplify the
provisions, while providing for a fair representation of lost earnings and to ensure workers who have retired (before
reaching pension age) and remain incapacitated for work are not disadvantaged:
a. Recommendations 7.1 and 7.2: Provide for a fair representation of lost earnings ‘average remuneration’ by
extending the relevant period from 2 weeks to 13 weeks.
b. Recommendation 7.3: Provide for a single method of annual indexation over the life of a claim, simplifying
the current framework and administrative burden of establishing how and when an increase or decrease
applies.
c. Recommendation 7.5: The current superannuation arrangements are complex and varied across the
scheme and removing the superannuation offset provisions may provide more equitable outcomes for
workers.
Under the SRC Act (section 19), weekly incapacity payments are paid at 100% of an injured worker’s pre-injury
earnings (as expressed through the concept of ‘normal weekly earnings’) for the first 45 weeks of incapacity. After
the first 45 weeks, a percentage of the normal weekly earnings (NWE), from 75% and 100% is payable, based on the
hours that the worker worked in each week. This structured reduction is known as ‘step-down’ and has been in place
since the SRC Act commenced.
The current step-down provisions provide a reasonable amount of time for injured workers to return to work with
support through incapacity payments at 100% of pre-injury earnings. The step-down provisions may be viewed as
generous when compared to other schemes and a disincentive for an injured worker to return to work. Any
consideration of amendments to these provisions would need to carefully weigh up and balance the need to provide
fair and reasonable financial support and care for injured workers against the risk of putting injured workers in a
difficult financial position, particularly in cases where there is no real prospect of an injured worker returning to
work.

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Scheme entitlements
Clarity is also needed to remove the complexities that have arisen because of the interaction of section 116 of the
SRC Act and the access and accrual to leave rules under section 130 of the Fair Work Act 2009 (FWA) (refer –
Scheme Guidance - Accrual of leave – Section 116 – Safety Rehabilitation and Compensation Act 1988).

Injuries resulting in death
Comcare supports review of the legislation to support and assist families of workers who are seriously injured or die
as a result of work-related injury. This includes, but is not limited to:
a. increasing the statutory rate payable for death and funeral costs, to a comparable standard with other
workers’ compensation schemes
b. allowing payment of the death benefit to the worker’s estate, removing the requirement that a worker must
have wholly or partially economic dependants
c. broadening the meaning of ‘prescribed child’ to allow for part time study and part time employment
d. exempting the prescribed child weekly payments from taxation laws, similar to the exemptions made under
the Military compensation schemes
e. providing a mechanism to support families of terminally ill or deceased workers, for example,
reimbursement or payment of financial advice, grief counselling and respite services.

41. What changes are needed to best The medical treatment test (section 16) requires the consideration of ‘medical treatment obtained in relation to the
determine fair compensation for injury (being treatment that it was reasonable for the employee to obtain in the circumstances)’. The term
medical treatment and ‘reasonable’ is not defined in the SRC Act and the assessment of reasonableness is determined on a case-by-case
rehabilitation and household and basis. This has resulted in costly and often unnecessary or harmful disputes, particularly in response to therapeutic
attendant care services? treatments that may not be imbued with an intrinsic medical quality or feature. Comcare supports changes that
support decision makers to make an objective assessment of the reasonableness of medical treatment, and also
minimise further harm, for example:
a. medical treatment principles that provide the best possible health outcomes for injured workers. This could
be achieved by either scheme guidance or legislative instrument that gives weight to the Clinical Framework.
Recommendation 7.28 of the Hanks review supports this approach.
b. treatment guidelines that mitigate risk associated with drugs that have the high potential for misuse, abuse
or dependence or health outcome research is still emerging. This includes Schedule 4 and Schedule 8
drugs. Recommendation 7.26 of the Hanks review supports this approach.
Comcare also supports change that provides for the assessment of the need for services that are provided in the
home (attendant care and household services). Recommendation 7.36 of the Hanks review supports this approach.

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Scheme entitlements
Comcare’s views about rehabilitation, return to work and early intervention are discussed at question 49 to question
52.

42. How should the permanent Comcare considers that the permanent impairment (PI) provisions of the SRC Act be changed to allow for the
impairment provisions be improved? adoption of the Safe Work Australia Guidelines for the Evaluation of Permanent Impairment (National Guide). The
National Guide is considered best practice for the assessment of PI claims in Australia and is used by most workers’
compensation jurisdictions in Australia. Changes to allow for the methodology set out in the National Guide
include:
a. providing for the concept of ‘whole person impairment’ evaluation (that is, combining multiple impairment
values for all injuries resulting in PI)
b. allowing apportioning of impairment values during the evaluation process to discount non-compensable
injury (apportionment is currently prohibited unless the decision maker is able to identify and isolate the
impairment caused by the non-compensable injury; see Jordan v Australian Postal Corporation [2007] FCA
2028)
c. removing the section 27 non-economic loss provisions that provide for a separate payment of compensation
based on the impact of the impairment on the workers’ activities of daily living (ADL). This reflects the ADL
considerations which are incorporated into the PI impairment evaluation methodology of the National Guide
d. commensurately increasing the section 24 PI compensation amount to reflect any presently compensable
section 27 non-economic losses resulting from the accepted injury or impairment which are not
incorporated in the National Guide (for example, ranges of pain, suffering, other losses, loss of expectation
of life)
e. providing for the accreditation of PI medical assessors by Comcare (there is no national accreditation
process currently and each state and territory has its own arrangements). In the absence of such a
requirement there is no regulatory oversight of the qualifications, expertise and consistency of medical
assessors undertaking PI assessments.
Comcare also supports the removal of PI provisions that are no longer purposeful. This includes:
a. Subsection 28(2) because the requirements of the Legislation Act 2003 provide for the making of legislative
instruments (the PI Guide) under the SRC Act.
b. Subsection 28(8) because the PI Guide is published on the Federal Register of Legislation and users can
access it electronically or purchase a hard copy there.
Comcare considers that the operation of the Health and Other Services (Compensation) Act 1995 (HOSC Act)
should not apply to the payment of permanent impairment (and non-economic loss) compensation made under the
SRC Act. Under the SRC Act, determining authorities are required to notify Medicare about permanent impairment
where the amount payable is equal or more than $5,000. The determining authority cannot make the payment to the

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Scheme entitlements
worker until Medicare recovers any medical expenses that have been funded by them. This delays the payment of
the PI lump sum to the worker, and if that delay is over 30 days interest is payable under section 26 of the SRC Act.
The interaction between the HOSC Act and the SRC Act may be an unintended consequence because workers’
permanent impairment payments are separate and distinct from medical treatment compensation.

43. Does the Comcare scheme Comcare considers that more could be done to support workers in this category, to ensure workers and their
sufficiently support injured families continue to receive reasonable and necessary rehabilitation and compensation support. This could
employees with no potential to include, but is not limited to:
return to work?
a. broadening the definition of ‘rehabilitation program’ to provide for services that help these workers to return
to better health, build resilience and to reintegrate with their community
b. provision of respite care services for family members, for workers who suffer or are suffering from serious
injury with no potential to return to work
c. provide a framework for the assessment and review of services that are needed to improve quality of life,
such as household assistance and attendant care services. Recommendation 7.36 of the Hanks review
supports this approach.
The long tail design of the scheme provides for the payment of incapacity provisions until a worker reaches
retirement age, and other entitlements are payable for the life of the claim. However, workers who have no capacity
to work and retire before pension age could be better supported if the superannuation offset provisions are removed
or re-designed to minimise the financial impact on workers and their families.
Compensation for certain alterations, modifications, aids and appliances are only payable when a worker is
undertaking, has completed or has been assessed as not capable of undertaking a rehabilitation program. This
requirement restricts access to timely support for workers particularly when they have no potential to return to work
and should be removed.

44. Should the scheme allow more Comcare considers that the legislative framework should examine the ability for the injured worker to have greater
options to finalise claims, including choice over their experience and pathways in and through the scheme.
lump sum payments? What
There are situations where an injured worker may wish to exit the workers’ compensation process. For example, an
safeguards should be in place?
injured worker may prefer to take a lump sum payment, retrain and leave their current employer for a new role. This
could be because their injury means they cannot perform their existing role or they may not want to remain in
contact with their employer, the insurer and the insurance process. Legislation could support this via a lump sum
payout.

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Scheme entitlements
There would need to be safeguards in place to protect the worker (a worker must have choice and must not be
forced into taking one pathway over another) and the scheme (there must be limitations in place for the worker to
reopen a claim that has been finalised through a lump sum payout).

Interactions with other schemes and sources of income
Question Comments

45. Should access to common law If access to common law continues to be restricted, section 44 of the SRC Act requires clarification and correction
continue to be restricted? to ensure it operates as intended.
Section 44 excludes a common law action for damages by a worker against the Commonwealth (or other relevant
authority) in relation to an injury or loss suffered in the course of employment. Comcare considers that the provision
operates to bar all injury, however the provision uses the term ‘in the course of employment’ and this could be taken
to mean only injuries that are temporally connected to employment (section 5A). If it is intended to be read this way
an injury (other than a disease) arising out of employment (section 5A) and a disease, being an ailment that
employment significantly contributed to (section 5B) would not be barred from being the subject of a common law
action.

46. Should there be a greater right to Comcare supports a greater right to redeem compensation benefits (see our response to question 44).
redeem compensation benefits? In
what circumstances should
redemptions be available?

47. Do the provisions in the SRC Act If the outcome of the Comcare v Friend [2024] FCAFC 4 judgment is an unintended consequence of the operation of
aimed at preventing double-dipping the SRC Act, consideration could be given to the interaction with other statutory regimes. For example, reviewing the
in relation to like-remedies need meaning of ‘damages’ or extending the operation of section 118 to apply to Commonwealth agencies that may be
changing following Comcare v required to pay damages under other statutory compensation regimes in relation to matters arising from the same
Friend? circumstances as a compensable injury under the SRC Act.

48. Should there be any adjustments to Comcare supports changes to the legislative framework to allow for the exchange of information between relevant
workers’ compensation payments bodies in circumstances where a worker is or may be entitled to receive compensation from another
for compensation or support from Commonwealth scheme (that is, Military compensation schemes or the National Disability Insurance Scheme) as a
other sources? For example, what
impact should the receipt of

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 34
Interactions with other schemes and sources of income
statutory entitlements and other result of the same injury or event. Where dual coverage does exist Comcare should have a power to offset or recover
income have on the entitlement to, compensation amounts payable under the SRC Act.
and calculation of, compensation?

Rehabilitation, return to work and early intervention
Question Comments

49. Does the Comcare scheme provide
suitable criteria and arrangements
Early intervention
to support: The SRC Act scheme does not currently provide criteria or arrangements for early intervention. Provision of early
• Early intervention? intervention support for a worker is at the discretion of their employer.
• Return to work? Comcare supports early intervention to deliver better return to health and return to work outcomes, noting that early
intervention must never be used to dissuade workers from making a workers’ compensation claim (and there should
be appropriate regulatory oversight of this). If the scheme is to include early intervention, there should be
appropriate cost recovery arrangements (through premiums for Commonwealth agencies) and a framework that
supports access to appropriate treatment prior to claim acceptance and early return to work support. A provisional
liability framework as noted in questions 10 and 50 with appropriate safeguards will assist in the delivery of early
intervention supports.

Return to work
Comcare recognises the benefit of early and durable return to work and has explored initiatives to better support
return to work such as the Early intervention service pilot project and the Career Transition program. As noted in our
response to question 10, the return to work provisions of the SRC Act require review because, among other things,
they provide minimal criteria or arrangements for return to work. For example, section 40 of the SRC Act provides
that the relevant employer shall take all reasonable steps to provide the worker with suitable employment, but
Comcare has no regulatory powers to enforce this requirement.
As highlighted in question 10, for premium paying Commonwealth Agencies, the employer is usually the
rehabilitation authority and Comcare is usually the relevant authority. There are some instances where it would be of
benefit for the worker for Comcare to take on the role of rehabilitation authority.

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Rehabilitation, return to work and early intervention
50. Should the Comcare scheme Comcare supports consideration of a legislated provisional liability mechanism focussed on supporting recovery to
provide for provisional payments? If health and, where appropriate, recovery at work or reintegration into the workforce at any capacity, before a
so, what should be the length and determination on a workers compensation claim is made.
amount of any such payments, and
Consideration of the experience of other schemes (that is, New South Wales or Victoria) including worker
how/whether to recover payments if
experience and outcomes, financial implications, and any safeguards required, particularly in relation to:
ultimately the injury is not due to
work? a. eligibility, who receives the provisional payments and what triggers it (that is, a claim for workers’
compensation made under the SRC Act or an incident notification resulting in serious injury under the WHS
Act)
b. the scope of entitlements, in addition to early intervention costs discussed at question 49 (that is,
reasonably necessary treatment, treatment cost limits, duration and cost limitations for loss of income
payments)
c. impacts to premiums or licensee fees in circumstances where the claim for workers’ compensation is
subsequently disallowed.
If provisional arrangements are to be introduced, an additional safeguard would be to legislate a review of these
arrangements to ensure that they operating as intended.
The National Return to Work Strategy 2020–2030 concludes that longer processing times leads to poorer outcomes
indicating the quicker an individual can access treatment, the more likely they are to return to health and work.
There is strong evidence that work is generally good for physical and mental health and wellbeing. Worklessness is
associated with poorer physical, mental health and wellbeing.
A Monash University study looked at the association between workers’ compensation claim processing times and
work disability duration and found delays in the time taken during the claim processing time may contribute to
negative health and work outcomes. Such delays have been associated with chronic disability among workers with a
low back pain condition and longer disability durations. Additionally, stress from these delays has been linked to
greater disability, higher incidence of anxiety and depression, and lower quality of life up to 6 years post-injury
among traumatically-injured individuals.

51. What changes are needed to the SRC Comcare has provided a view in respect to the oversight of rehabilitation authorities in the question 10 response.
Act regarding oversight of
The SRC Act currently provides sufficient oversight of WRPs who operate within the scheme. Comcare has powers to
rehabilitation authorities and
approve and renew WRPs. WRPs need to meet Comcare’s performance and compliance expectations under the
rehabilitation providers?
SRC Act including mandatory training requirements for all WRPs. There is an opportunity to streamline the

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Rehabilitation, return to work and early intervention
conditions of approval and renewal and operation standards to reduce the administrative burden of compliance and
monitoring compliance for both WRPs and Comcare.

52. Should the SRC Act provide Yes, per our response to question 10, the SRC Act should provide Comcare with greater regulatory powers in relation
Comcare with greater regulatory to rehabilitation. The focus of those increased powers being on ensuring all appropriate efforts are being taken to
powers in relation to rehabilitation? ensure a timely rehabilitation and return to work of an injured workers.

Resolving disputes in the scheme (ToR 6)
Resolving disputes in the scheme
Question Comments

53. What is your experience of dispute Comcare’s experience is that claim disputes which are resolved as early as possible in the review and appeal process
resolution in the scheme? What tend to achieve better outcomes for both the injured worker and the scheme. Injured workers involved in lengthy
improvements would you suggest dispute resolution procedures do less well in terms of objective outcomes of return to work, length of claim and cost
arising from that experience? of claim.
Comcare supports further consideration of alternative dispute resolution processes that seek to resolve disputes as
early as possible consistent with best practice design principles for a workers’ compensation scheme (see responses
to questions 2, 54 and 55).
Comcare suggests the review examine the WorkSafe Victoria and the Transport Accident Commission (TAC) structure
of dispute resolution procedures. These models establish the authorising environment in legislation but avoids
prescribing the process/rules in legislation.
There are times when Comcare needs to clarify the understanding and interpretation of a particular legislative
provision with scheme significance and may do so through appealing an Administrative Review Tribunal (ART)
decision to the Federal Court. This is consistent with the Legal Service Directions 2017 (Cth) and Comcare’s model
litigant obligations. In such circumstances, Comcare considers the injured worker should be provided with
appropriate support to assist them through the appeals process, including but not limited to the payment of costs in
appropriate circumstances and possible interim compensation such as medical treatment where reasonable and
appropriate.

54. Should the legislative framework Comcare supports a legislated pre-litigation dispute resolution process. This could occur following the finalisation of
provide for pre-litigation dispute the reconsideration decision.

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Resolving disputes in the scheme
resolution processes prior to Depending on the model, consideration would need to be given to:
external review by the Tribunal? If
a. the funding arrangement
so, at what point in the process and
b. the impact on the timeliness of decision making
by whom?
c. interaction with the ART process or processes
d. engaging/instructing a mediator or Alternative Dispute Resolution practitioner
e. the kinds of disputes that would be appropriate for dispute resolution.

55. Should the legislative framework be As noted in our response at question 53, Comcare notes that WorkSafe Victoria and TAC have dispute resolution
changed to adopt best practice in procedures that may provide some insights in to practices within other schemes which may be of benefit to the
dispute resolution from other Comcare scheme.
schemes? If so, please specify.

56. Is there a role for medical panels to Comcare supports exploration of a medical panel to contribute to the dispute resolution process. This should include
contribute to the dispute resolution consideration of the experience of other schemes, best practice approach, and any unintended negative
process, and if so, how should such consequences such as worker experience and timely resolution of proceedings.
a panel be constituted and should
the panel’s opinion be binding?

57. How can dispute resolution Comcare recognises the importance of the workers’ experience of a dispute resolution process and supports the
processes be structured to limit adoption of a best practice approach. Considerations are provided in questions 53 and 55 above.
further harm to claimants? For
example, should there be dispute
resolution at the reconsideration
stage? Who should pay legal costs
associated with the
reconsideration?

58. Do you have other suggestions for There are opportunities to improve the process and approach to support for the worker through the dispute process,
improvements to the processes for as it can be confusing, time consuming and costly.
resolution of disputes? For example,
Further, legislative change that permits correction of minor errors in determinations without the administrative
other avenues for the resolving of
burden of the reconsideration process and removing duplication within the Act will assist in the timely resolution of
disputes or providing for ‘all in’
simple errors, akin to a ‘slip rule’ found in Uniform Civil Procedure Rules for courts and section 114 of the
settlements?
Administrative Review Tribunal Act 2024.

Comcare’s submission to the SRC Act Review Issues Paper 2024 | 38
Scheme administration (ToR 7)
Delegated claims management
Question Comments

59. Should the Comcare scheme The purpose of the delegated arrangements is to provide a certain cohort of premium paying entities with the ability
continue to provide for delegated to manage their own workers’ compensation claims. Comcare has ongoing responsibility for the management of the
claims management arrangements? delegated claims management arrangements.
Comcare notes the outcomes of the Australian National Audit Office’s performance audit. Bringing together the
responsibility for rehabilitation and workers’ compensation as with the employer, along with strong and active
commitment to rehabilitation and return to work, can support improved rehabilitation and return to work outcomes.
Any change to the number of employers under the delegated claims management arrangements would need to
consider impacts on the role and capacity of Comcare and the claims manager support service providers.

60. What aspects of the delegated Should the decision be made to continue to provide for delegated claims arrangements, it may be prudent to
claims management arrangements expressly provide for these arrangements, and the criteria to be applied to approve an agency to take up the
should remain? What changes are arrangements, in the legislative framework.
needed?
The Australian National Audit Office report on Comcare’s administration of its Workers’ compensations scheme
claims is relevant.

Ensuring fair, accurate and timely decision-making
Question Comments

61. Are further changes required to the As indicated throughout this submission, Comcare is supportive of changes that streamline and support quality,
claims decision-making framework accuracy and timeliness in respect to claims decision-making, including:
to improve outcomes and ensure
a. consideration of best practice design principles, that is, efficiency, minimise disputes, flexibility and
fair, accurate and timely decision
timeliness (question 2)
making? If so, please specify.
b. changes needed to help workers navigate the legislative framework and to understand and access their
entitlements (question 3)
c. management of complex psychological claims (questions 6 and 12)
d. changes to better support recovery and wellbeing and improve return to work outcomes (question 10)

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Ensuring fair, accurate and timely decision-making
e. support for workers, and their families, with life-changing injuries and illnesses (questions 11 and 13)
f. a single employment connection test rather than the existing multi-test structure (question 36)
g. fair compensation for medical treatment and rehabilitation and household and attendant care services
(question 41)
h. changes to the PI provisions of the SRC Act (question 42).

62. How can unintended consequences In addition to our proposal in relation to the legislative framework as set out in response to question 3, Comcare
best be avoided? recommends a legislated review point to support identification of any unintended consequences arising from
legislative change and options to address these unintended consequences.
Transitional provisions may be required to ensure any change in frameworks can be managed in an orderly
way. Making the transitional provisions simple, and short in time are preferable (no more than 6 months).

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