The Western Australian Government introduced the Workers’ Compensation and Injury Management Amendment (COVID-19 Response) Bill 2020 to parliament, proposing significant changes to workers’ compensation laws under the Workers’ Compensation and Injury Management Act 1981.
Key Changes for Healthcare Workers: The bill establishes a presumption that healthcare workers who contract COVID-19 acquired the disease at work, reversing the standard burden of proof. Under current WA law, workers must typically demonstrate their injury or illness arose from employment. This proposed change shifts the onus to employers to rebut the presumption, potentially reducing claim investigation timeframes and costs for affected healthcare workers.
Changes Affecting All WA Workers: Beyond COVID-19 provisions, the bill proposes broader amendments including:
- Retrospective application from 16 March 2020 for eligible healthcare worker claims
- Removal of the ‘termination day’ for common law elections, extending the timeframe from one year to up to three years under the Limitation Act 2005
- Introduction of electronic service provisions for workers’ compensation documentation
Current Status: The bill requires passage through both houses of WA Parliament and Royal Assent before becoming operational. Workers should note these are proposed amendments, not yet enacted law.
The best bits
· Section 49E(5) allows for the presumptive provision to operate retrospectively from 16 March 2020. Therefore, if you are a healthcare worker who contracted COVID-19 prior to the bill being enacted, you can still make a claim using the presumption that the disease was contracted at work.
· The ‘termination day’ (the final day to elect to pursue a common law claim) is discontinued. This means that where workers normally had one year from the date of filing their claim to elect to pursue common law entitlements; workers are now only subject to the general limitation period under the Limitation Act 2005. This means workers will have a period of up to 3 years to commence a negligence claim against their employer.
· The insertion of s314A, an economic and environmentally friendly provision, allows for the electronic service of certain notices and documents required to be sent under the workers’ compensation legislation.
The worst bits
· The bill, like any other bill is not yet law, and therefore must progress successfully through both houses of parliament before it receives Royal Assent and becomes operational. This means that the bill still has a long way to go before it is implemented and will likely be subject to amendments along the way. On the plus side, given the bill’s application to the COVID-19 crisis, it could be hoped that it will be fast-tracked through parliament.
· Although the termination day to elect to pursue a common law claim has been discontinued, it appears that workers may still be required to ‘elect’ to pursue such a claim.
What does this mean for you
· If the bill is passed, for healthcare workers who contract COVID-19, there is no longer a requirement to undergo significant investigative procedure or medical assessment in order to demonstrate that the employment was a significant contributing factor to the contraction of the disease.
· For other workers who wish to pursue a negligence claim against their employer, the period permitted to do so has effectively been extended from normally one year (two years with an extension) to up to three years.
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