WorkCover employer rights have been applied for prospective workers in Queensland. The Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 (Qld) attained assent in Queensland Parliament on 29 October 2013.
As a result a number of changes have been made to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) which may affect workers, but will essentially benefit employers. Some of the more significant changes include:
- an employer’s right to request from prospective employees information about any pre-existing injuries or medical conditions;
- an employer’s right to access the prospective employee’s history of claims in particular instances; and
- Increasing the onus on workers in relation to claiming compensation for psychiatric or psychological injuries.
Request for notification of pre-existing injuries (section 571B)
Provided it is done so in writing, a prospective employer may request a prospective worker disclose information regarding any pre-existing injuries or medical conditions. The request must also include information about the nature of the duties of the relevant employment. It must also warn that if the prospective worker was to provide false or misleading information, they will not be entitled to compensation or seek damages if their pre-existing injury or medical condition was to be aggravated by the relevant employment.
However, employers should note that their right will essentially be waived if they allow the worker to commence work before the worker has had a reasonable opportunity to comply with the request for notification. Thus, workers’ rights to compensation will be unaffected by this request for notification as they had no reasonable opportunity to comply.
Access to history of claims (section 571D)
A prospective employer may apply, in the approved form, together with the application fee, to the Regulator for a copy of the prospective worker’s claims history summary. Employers should note that this must be done with the prospective worker’s consent and the application must be endorsed to show this. However, the law imposes no obligation on workers to provide this consent.
With this right comes a responsibility. If the Regulator does accept the application and provide the employer with a copy of the worker’s claims history, an obligation of confidence is imposed on the employer. That is, the employer must not disclose its contents or information contained in the summary to any person, or give access to any person, or use it for any other purpose other than for the purposes of the employment process. A failure to comply with this obligation may give rise to criminal liability.
Psychiatric and Psychological Injury (amendment of s32)
The definition of ‘injury’ in the Act has also been amended so that to claim damages for an alleged psychiatric or psychological injury, the worker must demonstrate that employment duties were the “major significant contributing factor” to the injury.
The language used in the legislation, essentially raises the bar even higher for workers, placing a heavier onus on them when trying to seek compensation for psychiatric or psychological injury
Effect of Anti-Discrimination law
It should be noted that in all this, employers must remain compliant with their statutory obligations and their obligations to prospective workers. Furthermore, employer’s obligations under Anti-Discrimination law, both at the federal and state level, remain so that employers must be careful not to unlawfully discriminate on the basis of the information they have requested from the prospective worker.
As the effect of these new Workers’ compensation provisions have not yet been judicially tested, employers should remain cautious of the effect of section 109 of the Commonwealth Constitution. This provides that in so far as there is an inconsistency between the State legislation such as the Queensland Workers’ compensation legislation, and the Commonwealth legislation, such as the various Commonwealth Discrimination Acts, the Commonwealth law will prevail. Therefore, federal anti-discrimination obligations will prevail if State law is inconsistent and seems to suggest that discrimination is permissible.