Return to work: Employer obligations under WorkCover

Monday 16 October 2017
Catherine Sim

Navigating the WorkCover system is often fraught with uncertainty. After seeking legal advice, workers may have a better idea of their responsibilities and entitlements under the WorkCover system, but what about the responsibilities and obligations of the employer?

In relation to return to work obligations, the starting point for the legislation is the ‘employment obligation period’. This is defined as a period of 52 weeks in which the worker has an incapacity for work contributed to by the work related injury, and commences on whichever of the following dates is earliest:

  1. The date the employer receives the first certificate of capacity
  2. The date the employer receives a WorkCover claim
  3. The date the employer is notified by WorkCover that a claim for weekly payments has been made
  4. The date the employer is notified by WorkCover that a certificate of capacity has been provided.

The 52 weeks do not have to run consecutively. There may be periods where the worker is able to work pre-injury duties and hours, and these weeks are not counted as part of the employer obligation period.

During the employer obligation period, s103 of the Workplace Injury Rehabilitation and Compensation Act 2013 requires that an employer provide suitable employment or pre-injury employment, dependant on the capacity of the worker.

Failure to comply with the employer obligation period can lead to penalties for the employer of up to 180 penalty units ($28,542.60) for an individual, or 900 penalty units ($142,713.00) for a company.

If your claim is accepted for a limited period, or your entitlements are terminated prior to the end of the employer obligation period, the obligation on the employer no longer exists. For instance, if you have a claim for weekly payments and medical and like expenses which is terminated six months from the date of injury, the employer is not required to provide employment for the remaining six months, and you are subject to normal industrial relations laws.

If your claim is still active when the employer obligation period finishes, your employer is no longer required to provide suitable work or pre-injury work. Any termination of your employment will be subject to normal industrial relations law and discrimination laws. The Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) also provides for remedies if you have been terminated from your employment directly as a result of making a WorkCover claim. See WorkCover and Employer Discrimination article for further information.

If you have suffered a workplace injury and wish to learn more about your rights and entitlements, please contact Adviceline Injury Lawyers on (03) 9321 9988 for a no-obligation conversation.

Go Back