RTW Act Review commenced 4 December 2017


Wednesday 22 November 2017

Here is the full text of the Minister's statement to the House of Assembly:

14 November 2017


Mr Speaker, I seek leave to make a Ministerial statement.

Three years ago this Parliament enacted the Return to Work Act 2014.  The new Return to Work Act was the biggest reform of our State’s work injury insurance scheme in nearly 30 years.  It replaced the old WorkCover scheme which almost all people agreed was not working.  That scheme did not deliver effective return to work outcomes for workers and its costs were not acceptable.

The new Return to Work scheme has already delivered significant benefits for South Australians.  It is a scheme that that is 120% funded and supports workers to recover and return to work in a safe, durable and timely manner.  Return to work outcomes have improved significantly.

On the expiry of 3 years from the commencement of the Return to Work Act, the Act requires that I must cause a Review of its administration and operation.  As the Return to Work Act commenced on 4 December 2014, 4 December 2017 is the date on which the Review will commence.

The Honourable John Mansfield AM will conduct the Review assisted by a project team.

The Honourable John Mansfield AM is an eminent silk, recognised for his extensive commitment and service to the law, judiciary and wider community.  His Honour served for nearly 20 years as a Justice of the Federal Court of Australia before retiring in August last year.
The Return to Work Act requires that the Review must include an assessment of—

  • The extent to which the scheme, the dispute resolution processes, and the South Australian Employment Tribunal Act 2014 have achieved a reduction in the number of disputed matters and a decrease in the time taken to resolve disputes.
  • Whether the jurisdiction of the South Australian Employment Tribunal under this Act should be transferred to the South Australian Civil and Administrative Tribunal.
  • The extent to which there has been an improvement in the determination or resolution of medical questions arising under the Return to Work Act.
  • Any other matter that I consider to be relevant to a Review of the Return to Work Act.

I have determined the following matters are to be included into the Review:

  • The performance of ReturnToWorkSA in managing claims, including ReturnToWorkSA’s outcomes in reducing instances of work injury.
  • The performance of self-insured employers, including outcomes in reducing instances of work injury.
  • Changes in return to work rates at key milestones outlining factors influencing any improvement or deterioration.
  • Factors contributing to non-seriously injured workers failing to achieve a return to work within two years.
  • Any additional recommendations regarding re-skilling services to assist return to work outcomes.
  • Whether the scheme has yet achieved financial stability and, if not, when the scheme is likely to be mature and stable.
  • Any other recommendations consistent with the objects of the Return to Work Act.

The Review is required be completed within 6 months.  The results of the Review will be a written report.  This will be laid before both Houses of Parliament within 12 sitting days after its receipt.

The Review will be authorised to commission relevant actuarial support and any necessary social or economic impact assessments required to properly inform its deliberations and those of the Government.

The Review may invite written submissions from the public and other interested parties at its discretion.

The Review will produce a final report with any recommendations ultimately for Government consideration.

SISA makes the following observations with regard to the above terms of reference:

  • The word 'performance' is used twice. What constitutes 'performance' will firstly need to be defined, especially given that there is no reliable measure of true return to work performance.
  • The connection between reducing instances of work injury and the operation of the RTW Act will need to be clarified as there is no obvious link to the operation of the Act itself other than a supporting role in prevention mentioned in the objects of the Act
  • Some other terms are similarly nebulous, and the ability of the review to adequately answer them will be tested - the review is required to identify 'factors' influencing or contributing to certain things. It is common knowledge that for every trend in the scheme, there are a great many factors bearing on them, often to an unquantifiable extent and degree of controllability
  • The RTW scheme is far from stable and will not be in the foreseeable future given that it will take some years for key elements of case law and any consequential amendments to the Act to stabilise. Industry norms suggest that schemes can take up to 10 years to mature.
  • Interestingly, the terms of reference do not directly call for technical submissions with regard to the viability of elements of the Act itself. We predict however that this will nevertheless be a focus of many submissions to the review especially in the areas of causation, whole person impairment and serious injury status, probably reflecting the recent Parliamentary Standing Committee inquiry and report.