Return-to-work co-ordinator in NSW: the category 1 employer line

Category 1 and category 2

icare’s plain wording is shorter than the Regulation’s: it describes category 1 as employers “with a premium of over $50,000 per year”. Two points in the Regulation’s wording matter to a growing business. The figure is the basic tariff premium, which icare notes is the regulator’s equivalent of what icare calls the average performance premium. And the premium is read as if the period of insurance were 12 months, so the test looks at a full year’s premium whatever the length of the policy period.

The return-to-work program

The co-ordinator is the new step at category 1. The program comes first, for every employer that clause 21 of the Regulation does not exempt. Section 52(1) of the Workplace Injury Management and Workers Compensation Act 1998 says an employer “must establish a return-to-work program” with policies and procedures for rehabilitating injured workers, and the program has no effect to the extent it conflicts with the injury management program of the employer’s insurer.

Under section 52(2), subject to the regulations, the program must comply with the guidelines the Authority determines, be developed “in consultation with the workers concerned and any industrial union of employees representing those workers”, be in writing, and “be displayed at places of work, or notified to workers by publishing it on a website or by any other method authorised by the regulations”. Clause 16A of the Regulation adds that notifying it through a smartphone app is allowed too.

1. 12 months

   A category 1 employer establishes its program before 12 months have passed after it becomes category 1; a category 2 employer, before 12 months after it becomes category 2 (clause 11). The Authority may extend the time in a particular case.

2. Category 2

   May adopt a standard return-to-work program prepared by the Authority, and is then regarded as having established a program (clauses 13 and 14). icare describes this as adopting SIRA’s standard template.

3. Category 1

   Writes a program that complies with the return-to-work guidelines; without that, the Regulation does not regard a program as established (clause 14(1)). Where the guidelines require it, the program nominates an approved provider of workplace rehabilitation services (clause 16).

A category 2 employer need not display or notify its program if it gives a copy to any worker who asks or who claims compensation for an injury, or makes other appropriate arrangements so workers can get a copy (clause 18).

The co-ordinator

Clause 19(1) gives a category 1 employer two ways to meet the duty:

• “employ a person to be a return-to-work co-ordinator for injured workers of the employer, being a person who has undergone such training as the return-to-work guidelines may require”
• “engage a person in accordance with such arrangements as the return-to-work guidelines may from time to time permit to be a return-to-work co-ordinator for injured workers of the employer.”

The Regulation gives two examples of arrangements the guidelines can permit: engaging a co-ordinator through a person or organisation that provides them to employers, and sharing one person between 2 or more employers (clause 19(2)). The guidelines can require the Authority’s approval before such an arrangement is entered into, and can set the training, qualifications and experience of an engaged co-ordinator (clause 19(3) and (4)). Clause 21 exempts some employers from clause 19, and from setting up a program under section 52: an employer of domestic or similar workers employed outside its trade or business, but only for those workers; an owner-builder permit holder, but only for workers employed on the building work its permit covers; a corporation whose only workers are its directors; an employer whose only workers are its family members; an employer whose only workers work outside NSW; and an employer the Authority exempts in writing, to the extent the exemption says.

A group of 2 or more employers may set up a single program for every member, where the regulations authorise it (section 52(5)).

Maximum penalties in the Regulation

icare points to a further reason the program matters: it says effective return to work programs bring a more engaged workforce, less lost time and reduced premiums.