Clearer Employer Obligations Under the Act for an Injured Worker Returning to Work

As from 1 December 2024, the Return to Work Act includes updated provisions, clearly defining employer obligations for providing suitable employment for an injured worker returning to the workplace.

Employers are legally required to offer suitable work to an injured worker once they have regained some capacity to return to work. Typically, this process is straightforward, with minimal intervention needed.

However, if an injured worker seeks to return to work and no suitable employment is provided, they must submit a written request to their employer. This request should include medical evidence of their capacity to work and details of the type of employment they believe they can perform.

The employer must then respond in writing within one month detailing whether suitable employment will be offered, either as requested or another role they deem appropriate. If the employer refuses to provide suitable employment, they must justify their decision in writing.

If an agreement cannot be reached, an injured worker has one month to apply to the South Australian Employment Tribunal to resolve the dispute. DBH Lawyers can assist injured workers in that process.

If the Tribunal orders that suitable employment should have been offered, it can outline specific conditions, such as the nature of duties, adjustments needed for the worker to perform those tasks, and the number of hours to be worked.

The Tribunal may also order the employer to pay the worker for the wages or salary they would have earned if suitable employment had been provided. Any other employment income received by the worker during this period will be considered to avoid double compensation.

Attendance at an injured worker medical appointments

The legislative amendments now make it clear that employers and claims agents are not allowed to attend medical examinations or treatment sessions without the worker’s written consent.

However, they can participate in consultations related to the injured worker’s recovery and return-to-work planning (these are called case conferences).

Understanding suitable employment provisions for an injured worker

When a worker is injured on the job and ready to return to work, section 18 of the Act ensures they can request suitable employment from their employer. The worker must provide written notice and medical evidence confirming they have some capacity for work, along with the type of employment they believe they can perform. Employers must respond in writing within one month, either offering the requested employment or an alternative suitable role.

If the injured worker disagrees with the position offered, they can apply for review to the Tribunal or ask ReturnToWorkSA to investigate. The Tribunal can order employers to provide specific work duties and hours, and may also compensate workers for lost wages during this process.

For self-insured employers, they must now provide suitable employment opportunities across their entire group, not just within the original employer. This is particularly beneficial for large organisations and corporate groups (such as State government departments, BHP, Woolworths or Wesfarmers, just to name a few), where workers can be reassigned to other roles within the group.

Labour hire employers and host employers also face new requirements. Host employers must now cooperate with labour hire companies, ensuring that injured workers have access to suitable employment and participate in return-to-work planning.

South Australian Employment Tribunal powers

The Tribunal can specify employment conditions and order compensation for lost wages if suitable employment is not offered. The South Australian Employment Court also has jurisdiction, under or Fair Work Act 1994, to determine monetary claims where the employer has not paid appropriate wages or salaries for alternative or modified duties work is performing as a consequence of a work injury.

Employer benefits and exceptions

The Act also provides key benefits for employers. For instance, an employer’s duty to offer suitable employment does not apply if a worker’s employment was terminated for serious and wilful misconduct. However, the onus of establishing that lies on the employer.

The employer’s duty to provide work does not apply if new or other employment options have been agreed to as part of a recovery/return to work plan. Recovery/return to work plans are reviewable decisions under the Act and an injured worker should obtain legal advice on the consequences before agreeing to any such plans.

Furthermore, the Return to Work Regulations have been amended to allow employers to participate in Tribunal proceedings concerning the employer’s duty to provide work, and to have their legal costs paid in the same way as workers up to 85% of the Higher Court costs scale.

Other changes on the horizon to the Return to Work Act

Other legislative amendments which are suspended until a day or time fixed by a subsequent proclamation or proclamations include:

• Assessment of permanent impairment: the current definition and prerequisite of maximum medical improvement (MMImaximum medical improvement or medical stability) has been changed to “stabilised” unless the injury is a terminal condition
• Income support calculations now account for when a worker was exposed to hazardous substances, such as dust diseases by amendment to the Federal minimum wage safety net provisions.
• Workers with dust diseases or terminal illnesses can access entitlements more quickly due to clarified provisions in the Act.
• Powers and procedures on a referral to an independent medical advisor by the Tribunal to include any injury or injuries that is a terminal condition.

The delay in the commencement of these amendments may be owing to the State government’s desire to introduce proposed amendments to the Impairment Assessment Guidelines. You can read the latest about those proposed amendments here.

Changes for an injured worker with a dust disease or terminal illness

The amended Return to Work Act now makes it easier for workers with dust diseases or terminal illnesses to access benefits. Workers suffering from these conditions can now apply for income support based on their exposure to harmful substances or their diagnosis. This change is crucial for an injured worker who may have been exposed decades ago but only recently diagnosed with a dust-related disease.

Additionally, the Act clarifies the concept of “stabilisation” in relation to permanent impairment assessments. Workers with terminal or progressive conditions, such as dust diseases, are no longer required to meet the “stabilisation” criteria, improving their access to compensation.

For health practitioners: key updates

Medical professionals play a critical role in providing accurate and detailed medical evidence for workers requesting suitable employment. This evidence helps employers determine a worker’s capacity for work and assess suitable job roles.

The Act also specifies that only medical practitioners can determine if a condition meets the definition of terminal or incurable, ensuring proper medical assessments are made.