Employers’ obligations expanded by changes to Queensland's workers' compensation laws: what this means for your workplace

Last year’s review of the Queensland Workers' Compensation Scheme has now resulted in changes to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act) with the majority coming into effect on Friday 23 August.

The changes expand employer obligations under the Queensland workers' compensation scheme. It is important that employers have a firm grasp of the changes and how to comply with the additional obligations.

Key changes to the WCR Act include:

• adding 11 types of cancer to the list of cancers which are presumed to be caused by firefighting work, for the purposes of seeking compensation;
• expanding workers' compensation coverage to include certain gig workers;
• greater obligations on employers and insurers to assist with workers' compensation payments and implementation of rehabilitation and return to work procedures and policies;
• expansion of obligations to increase early intervention to pre-empt the deterioration of physical injuries into secondary psychological injuries;
• introducing a compliance framework that allows the Workers' Compensation Regulator to issue compliance notices; and
• an uplift in maximum penalties under the WCR Act.

Redefining who is a worker

Generally, gig workers are not afforded workplace entitlements and protections such as workers' compensation coverage because they did not meet the definition of "worker" in the WCR Act. The changes to the WCR Act expand the definition of “worker” to include a person who is:

• a “regulated worker” under the Fair Work Act 2009 (Cth) and a minimum standards order, minimum standards guideline, or collective agreement applies to, or covers, the person under chapter 3A of the Fair Work Act 2009; and
• the person is prescribed by regulation to be a worker.

Equivalent changes have also been made to the definition of “employer”.

This means that once a regulated worker’s status is regulated by the Fair Work Commission, this proposed change will allow Queensland gig workers who are deemed nationally to have an “employee-like” status to access Queensland’s workers' compensation scheme. The Explanatory Notes to the Bill explained that this amendment gives the Government flexibility and clarity in regulating coverage of the scheme for gig workers, achieving greater certainty and consistency across the gig industry nationally.

These changes to these definitions will commence on a date to be fixed to proclamation.

Increased employer and insurer obligations

The Bill added two new employer offences to the WCR Act that are intended to prevent employers from avoiding the workers’ compensation scheme and allow the Worker's Compensation Regulator to prosecute non-compliant employers.

The changes mean that employers must:

• not attempt to avoid the workers' compensation process. Employers are prohibited from giving benefits or causing detriment to injured workers with an intention of persuading the workers from applying for compensation or pursuing entitlements for the injury.
• provide workers with information statements about the workers' compensations scheme, before or shortly after employment begins. These statements must comply with regulatory requirements, though employers are exempt from providing a statement if the worker has received one within the last 12 months.

The obligations regarding provision of information statements will commence on a date to be fixed to proclamation.

Additional regulations will prescribe the content and delivery of these statements, with amendments to the Workers' Compensation and Rehabilitation Regulation 2014 that will specify the required information in the statements, such as including information about the worker's right to choose their own treating doctor, and to not have their employer or insurer present during treatment. To assist workers and employers in understanding their rights and obligations under the workers' compensation scheme, insurers will similarly be required to give compliant information statements to workers and employers as soon as possible after a compensation application is lodged.

If an injured worker has an accepted workers' compensation claim, insurers and employers have new obligations to assist the timely payment of weekly compensation:

• if WorkCover does not have necessary information to calculate a worker's weekly compensation entitlement, the employer must give the necessary information to WorkCover within five business days of receiving a notice from WorkCover. An employer's failure to comply may result in an offence (with a penalty up to 300 penalty units) and a penalty payment to WorkCover for any overpayment.
• While waiting for information to calculate a worker's weekly compensation entitlement, insurers must start paying a basic weekly amount to an injured worker. Implementing a default payment is intended to ease financial stress on injured workers with accepted claims, by providing them with more immediate cash flows.

Rehabilitation and return to work for injured workers

Timely rehabilitation and return to work processes for injured workers is crucial to helping them secure gainful employment post-injury, whether that is returning to their pre-injury role or finding new employment.

Despite existing obligations on insurers to take all reasonable steps to secure rehabilitation and early return to suitable duties of injured workers, and for employers to assist or provide the worker with rehabilitation, the 2023 Review found that insurers make insufficient enquiries in verifying and supporting rehabilitation and return to work processes for injured workers.

Several amendments have been made to the WCR Act to address this issue. Key changes include:

• insurers must form opinions with greater scrutiny when determining if it is practicable for an employer to provide suitable duties. If an insurer is not satisfied with an employer's opinion that it is not practicable to provide a worker with suitable duties, the insurer must look further into why the employer considers it not practicable;
• insurers must ensure workplace rehabilitation service providers meet requirements prescribed by scheme directions. Workers unhappy with a workplace rehabilitation service provider can request the insurer to engage an alternative provide of the worker's choice, and the insurer must accommodate this request if feasible;
• insurers must ensure there is a written rehabilitation and return to work plan outlining objectives and steps for the worker to return to suitable duties within 10 business days after claim approval. The plan must be reviewed and modified against new information as it arises and the worker's recovery progress;
• insurers and employers are prohibited from interfering or acting inconsistently with the worker's right to choose their workplace rehabilitation provider and doctors for their medical treatment; and
• host employers with a labour hire worker supplied to them must support the rehabilitation and return to work obligations of labour hire providers to assist an injured worker with rehabilitation. This includes providing suitable duties to the injured worker. This is intended to address reduced rehabilitation and return to work outcomes for labour hire workers, which are generally lower than those of employees.

Minimising risk of psychological harm

The Explanatory Notes of the Bill highlight a recent rise in the frequency of secondary psychological or psychiatric injury claims, emphasising the importance of early intervention in reducing risk and the severity of mental illnesses, aiding recovery and helping injured workers return to work smoothly.

In light of this, changes to the WCR Act require insurers to take all reasonable steps to minimise the risk of an injured worker from developing secondary mental injuries due to a physical injury and this responsibility continues until the worker's compensation entitlement ends.

While this is an insurer obligation, given an employer’s role in the rehabilitation and return to work process, we expect increased engagement with, and requests made to, employers to support the insurer meet this obligation.

Codes of practice

Currently, existing code of practice provisions under the WCR Act are limited to making codes that apply to insurers. The changes to the WCR Act expand these provisions to allow codes to be made in relation to not just insurers, but to employers and other persons in performing functions, exercising powers or complying with obligations under the WCR Act. This includes that the codes may prescribe steps for compliance with offence provisions that require “reasonable steps” to be taken.

In the explanatory speech in April 2024, it was outlined that a code to support insurers meet their obligations to take all reasonable steps to minimise the risk of secondary psychiatric and psychological injury claims and provide support services would be proposed. What other codes may be made is unclear at this stage, however, the amended section gives the following examples of what a code of practice may state action to be taken in relation to:

• training and development for claims managers or other staff or contractors;
• referring workers to early support services for psychiatric or psychological injuries;
• managing complaints against providers of workplace rehabilitation services or employers.

Failing to take actions in accordance with a code of practice can result in penalties.

New codes will be developed in consultation with stakeholders and reviewed at least once every five years. This change is intended to provide enforceable codes of practice that support enforcement of the WCR Act.

Compliance notices

New provisions provide the Workers’ Compensation Regulator powers to issue compliance notices for contraventions of the WCR Act. Failure to comply with a compliance notice will be an offence.

The change aims to enhance regulatory tools available to the Workers' Compensation Regulator, supporting practical compliance without needing to start prosecution.

Uplift in maximum penalties

Maximum penalties for certain offences under the WCR Act have been increased to ensure the penalties align with the seriousness of the offence and community expectations. The increased penalties also acknowledge the importance of key obligations, such as for rehabilitation and return to work and the impact non-compliance with these obligations have on outcomes for injured workers, employers, and the scheme.

For example, where an employer breaches the obligation not to dismiss a worker solely or mainly because the worker is not fit for employment in a position because of the injury, the maximum penalty is currently 40 penalty units ($6,452). This maximum has been changed to 500 penalty units ($80,650).