Return To Work Obligations

Accident Compensation Act 1985 (Vic)

Both injured workers and employers have legal obligations that are required to be adhered to as part of the return to work process. Failing to adhere to these obligations could:

  • lead to penalties, fines and/or prosecution for employers, and
  • affect a worker’s entitlements to weekly compensation payments.

 This section of the website details these obligations.

Employers

Claim lodgement – employers must forward all claims for weekly payments within ten (10) calendar days of receiving it from the injured worker (s 108 ACA).

If claims are lodged outside of the ten (10) calendar days, penalties may apply in the form of additional liability over and above the normal employer claim excess.

Return to Work Plan – employers must prepare a Return to Work Plan and nominate a Return to Work Co-ordinator for an injured worker who has an incapacity for work (s 156 ACA).

The Return to Work Plan should be prepared and Return to Work Co-ordinator nominated as soon as practicable but must be done no later than 10 days after:

  • a weekly payments claim is accepted or determined in the worker’s favour or,
  • the employer becomes aware that the worker’s period of incapacity has exceeded or is likely to exceed 20 days (s 156 ACA).

The 10 days is determined from the latest occurrence of the above events (s 156 ACA).

WorkSafe has developed a RTW plan template to assist you prepare the plan.

Offer of Suitable Employment – if an injured worker has some capacity for work, but cannot return fully to their normal role, the Return to Work Plan must include an Offer of Suitable Employment (s 160 ACA). An Offer of Suitable Employment is a written job offer based on duties the injured worker can do, taking into account their current work capacity and medical advice.  

Employer to re-employ worker

Employer's obligations to provide suitable employment to an injured worker can be summarised as follows:

  • if the injured worker can remain at or return to pre-injury work, the employer must provide a job the same as or equivalent to the job held before the injury; or
  • if the worker has a work restriction, the employer must provide a job that suits the worker, taking into account their medical condition, age, skills and experience.

An employer's obligation to provide suitable employment continues for 12 months from the date a worker’s claim for weekly payments is accepted, unless the employer can demonstrate that to do so would cause unjustifiable hardship [s 155A, 155B, 160 ACA].

Note: The 12 month period is not necessarily 12 consecutive calendar months. Rather, it is a combined total of all the periods where a worker has an incapacity for work. The employer's WorkSafe Agent can assist the employer on a case by case basis to ensure that all relevant periods are taken into account and that the employer meets their legal obligations.

Risk Management Program – Employers with a payroll of $1 million or less must establish a Risk Management Program within 3 months after the worker’s claim for weekly payments has been accepted or it is likely that the worker’s incapacity for work will exceed 20 days; whichever is the later (s 156 ACA).

Employers with a payroll of more than $1 million must have a Risk Management Program in place at all times (s 156 ACA). The Risk Management Program must provide the steps to be taken after an injury has occurred in the workplace to, as far as is practicable, reduce the risk of subsequent injury of that kind (s 159 ACA). More information about risk management programs can be found in WorkSafe’s Return to Work Guide for Victorian Employers.

Occupational Rehabilitation Program – Employers with a payroll of $1 million or less must establish an Occupational Rehabilitation Program within 3 months after the worker’s claim for weekly payments has been accepted or it is likely that the worker’s incapacity for work will exceed 20 days; whichever is the later (s 156 ACA).

Employers with a payroll of more than $1 million must have an Occupational Rehabilitation Program established at all times (s 156 ACA).

An Occupational Rehabilitation Program is a written outline of the way injuries are managed at your workplace and should set out the assistance available to help injured workers to remain at or return to work. An Occupational Rehabilitation Program must be developed in consultation with workers, be in writing and be available to all workers (s 158 ACA).

Referral for Occupational Rehabilitation Services – when referring an injured worker for Occupational Rehabilitation Services, the employer must provide the injured worker with a choice of no less than three approved providers, having regard as far as is possible to the type of injury, the type of occupational rehabilitation services required, where the worker resides and where the provider is requested to provide the services (s 99(3B) ACA).

Workers
Participation in Occupational Rehabilitation - Injured workers must make every reasonable effort to participate in an Occupational Rehabilitation Service (s 93D ACA).

Participation in Return to Work Plan - Injured workers must make every reasonable effort to participate in a Return to Work Plan (s 93D ACA).

Returning to Work in Suitable Employment - Injured workers must make every reasonable effort to return to work in suitable employment  
(s 93CD ACA).

Participation in Assessments - Injured workers must participate in assessments which are required to determine the worker’s incapacity or capacity, rehabilitation progress and future employment prospects when requested to do so from time to time (s 162 ACA).  These interviews are arranged with the aim of enhancing the worker’s employment opportunities and can occur at any time during the life of a claim.  The interviews can be of great assistance to all parties and provide opportunities to again discuss the return to work process with the worker, clarify what is expected of them and remind them of their rights and obligations.

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