5 January 2020 posted by Recovery Partners

A Return to Work (RTW) program is the framework that supports an individual to return to work after a work-related injury. Each state has different legislation and regulations to guide employers, workers and other stakeholders through this process.

In Victoria, the government organisation that operates as health and safety regulator and the manager of Victoria’s workers compensation scheme is WorkSafe Victoria. WorkSafe Victoria is also responsible for the issuing of return to work guidance and compliance requirements for employers and employees. Employers in Victoria must also register for WorkCover insurance with WorkSafe Victoria (with some exceptions) and are required to choose WorkSafe Agents, unless they are a self-insurer. These agents help to manage workers’ compensation claims and return to work processes.

Research has shown that an early return to work after a worker sustains an injury gives the best outcomes for both employees and employers. It’s important for both employers and employees to take an active role in the process of returning to work, with a positive focus on what they worker can do rather than what they cannot.

Factsheet: The Rights of An Injured Worker

When an injury occurs

When a worker is injured, they must report the injury to their employer as soon as possible. The employer must then record it in their Register of Injuries. Employers must tell employees about the register and make sure it’s accessible to them. The employer must also advise the injured worker in writing that they have been notified of the injury. This must be done as soon as possible, and within thirty days of the injury occurring. Neglecting to register the injury may compromise the worker’s claim for compensation. Workers are entitled to submit a claim for compensation, and employers must not obstruct this.

The worker must see a doctor for treatment and an assessment of their injuries, and so the doctor can provide a certificate of capacity.

What is involved in the return to work process?

To facilitate the return to work process, any of the following parties who are involved should work collaboratively with each other: Employers and employees, the WorkSafe Agent, return to work coordinator, occupational rehabilitation service provider, other treating health professionals and the worker’s support person. Together, these parties must formulate a plan for how the injured worker can return to work. Then, the plan must be implemented, the progress of the worker monitored, and regular consultation with the stakeholders arranged to review the status of the worker and the working arrangements.

Who is involved in the return to work process?

Workers

Workers have an obligation to make reasonable efforts to return to work, either with their employer or a new one. They must also cooperate and participate in the planning for their return to work, and work cooperatively with an occupational rehabilitation service if one is provided. They must also actively participate in assessments of their capacity for work, rehabilitation progress of future employment prospects, and participate in an interview for the purpose of enhancing the return to work opportunities available to them. Failing to comply with these requirements could affect the status of the worker’s claim.

Workers have the right to choose their treating health practitioner and choose their occupational rehabilitation provider from a list of a minimum of three providers. The worker can also choose to be represented, assisted and supported by another person (not a legal practitioner) during any stage of the return to work process.  Workers can also expect the opportunity to have decisions regarding their claim reviewed. The worker is also responsible for obtaining certificates of capacity (see more below under ‘Medical practitioners’). More information about the return to work obligations of workers can be found here.

Employers

Under Victorian law, employers are obligated to do certain things to facilitate the safe return to work of an injured employee as soon as possible. These obligations begin before a claim has been accepted by a WorkSafe agent, when the worker’s certificate of capacity or claim form have been received, or if an employer is notified by WorkSafe that the agent has received either of these documents. It’s important that the employer stays in contact, communicates openly and offers support to the injured worker. They must also:

  • Provide the worker with relevant information about returning to work, including the name and contact information for the employer’s WorkSafe Agent. This information must be available to them at all times. This template can be a good way of communicating the rights and obligations of both parties.
  • Let the worker know how you are addressing the hazards that led to their injury
  • Inform the worker about who the Return to Work Coordinator is and let them know they will be in touch
  • Ensure the worker has received the brochure entitled ‘Introducing WorkSafe, a guide for injured workers’
  • Make any changes necessary in the workplace to allow the worker to return
  • Communicate with other workers about the return to work plan and how the returning worker can be supported.

Employers must also fulfil several other obligations, including:

Make a plan for the worker to return

This should be done in consultation with the worker and other parties and should consider what workplace support, aids or modifications are necessary for the worker to return. The worker is responsible for obtaining information about the workers’ capacities and proposing options for suitable employment to the worker. WorkSafe Victoria has a Return to Work Arrangements template that can be useful for documenting the plan. Employers should be prepared to regularly review and revise the plan as needed. Employers must ensure that they provide clear, accurate and current details of return to work arrangements to the employee.

Monitor the progress of the worker

Employers are tasked with consulting with the worker and other treating health professionals and/or occupational rehabilitation providers to ensure the return to work plan is effective.

Provide suitable employment

The employer must provide suitable employment to a worker if they are unable to return to their pre-injury work, for a period of 52 weeks following the injury. When a worker has returned to full capacity, the employer must provide them with employment at the same level as before their injury, or equivalent. Suitable duties may involve reduced hours or modified/alternative duties that are a better fit for the capacity and restrictions of the worker after their injury. If an employer cannot provide suitable or pre-injury employment, they will need to demonstrate why this is so. More information about what constitutes suitable employment can be found here.

Appoint a Return to Work Coordinator

Employers must appoint a Return to Work Coordinator to assist with the process. The Return to Work Coordinator liaises with all parties. The Return to Work Coordinator must have appropriate seniority and must be appointed in the following circumstances:

  • Employers with rateable remuneration of $2million or more must have a Return to Work Coordinator appointed at all times
  • Employers with rateable remuneration of less than $2million must appoint a Return to Work Coordinator for the duration of the employer’s return to work obligations to an injured worker.

See more below about the role of the Return to Work Coordinator.

Provide a safe work environment

OHS legislation provides instructions for employers on how to make sure their work environments are safe, and employers must ensure they adhere to these.

Maintain the privacy and confidentiality of worker’s information

Employers must abide by the legislation that regulates the exchange of a worker’s personal health information.

Avoid discriminatory conduct

Employers must comply with legislation that regulates the conditions around discriminatory conduct in workers’ compensation cases. This may include dismissing a worker unfairly or treating them less favourably than others.

Other State and Commonwealth discrimination laws may also apply to how an employer treats an employee in this circumstance. Employers should make sure they are aware of their obligations under all relevant legislation.

More information

More information about the return to work obligations of employers can be found here.

More information can be found in the WorkSafe Victoria compliance codes, which can be downloaded here.

Labour hire return to work information can be found here.

Penalties may apply to non-compliant employers, find out more here.

WorkSafe Agent

WorkSafe agent is chosen by an employer when they apply for or renew their WorkCover insurance. Agents are appointed by WorkSafe Victoria to manage workers compensation claims and provide advice to help the injured worker return to work.

Return to Work Coordinator

The Return to Work Coordinator is responsible for liaising with all parties, monitoring the implementation of the return to work plan and ensuring that the return to work activities are undertaken in a safe and effective way. The Return to Work Coordinator must be empowered to make decisions on behalf of the employer. The Return to Work Coordinator must be determined to be competent, meaning that they must have the skills, experience or knowledge required to perform the role. More information can be found here.

Occupational rehabilitation provider

An occupational rehabilitation provider may be enlisted by the employer or WorkSafe Agent. This is an independent party who receives a referral from a WorkSafe agent. Occupational rehabilitation providers can be a liaison point between other parties, and may conduct workplace assessments and help identify suitable duties for the worker. They can also assist in drafting return to work plans and proposals. More information can be found here.

Medical practitioner

The medical practitioner who is providing the primary treatment for the injured worker also has an important role to play in the return to work process. They are responsible for issuing Certificates of Capacity, important documents that guide all other stakeholders on the capacities and restrictions of workers following their injury. The first Certificate of Capacity can be valid for up to 14 calendar days. Ongoing certificates are usually valid for up to 28 days and can be obtained from both medical practitioners and other allied health professionals like chiropractors or physiotherapists. The worker must declare any work they have done and sign the back of each certificate in front of a witness. More information can be found here.

Allied health professionals and Independent Medical Examiners may also be involved in the return to work process. More information can be found here.

Notifiable incidents and noticeboard requirements

Employers in Victoria must also display WorkSafe Victoria’s If you are injured poster and make the following information available and accessible to all workers:

  • the return to work obligations of the employer and how they are meeting these
  • the return to work rights and obligations of workers and details on how they can get further information about these
  • the name and contact details of the WorkSafe Agent
  • the name and contact details of the Return to Work Coordinator (if applicable)
  • the procedure for resolving return to work issues and disputes in the workplace

WorkSafe Victoria must be notified of certain incidents. Find out more here.

Dispute resolution processes

If an issue arises about a worker’s return to work arrangements that can’t be resolved, the employer can either enact their own dispute resolution process or use the Return to Work Issue Resolution process as mandated by law. WorkSafe Victoria has a useful factsheet with further information on this procedure.

Information in this article is correct at the time of publication. While comprehensive, this is not an exhaustive guide to the RTW requirements in Victoria, and SafeWork Victoria is the best source of information for this. If you’d like to know more about implementing an effective RTW program in your workplace, get in touch with Recovery Partners by calling 1300 OHS RTW (647 789) or emailing admin@rrp.com.au.

Recovery Partners provides personalised service to customers in all areas of workplace safety and occupational rehabilitation. If you’d like to chat about how we can help you, call Recovery Partners on 1300 OHS RTW (647 789) or email admin@rrp.com.au.

165 of 246

Disclaimer – these articles are provided to supply general safety information to people responsible for OHS in their organisation. They are general in nature and do not substitute for legal and/or professional advice. We always suggest that organisations obtain information specific to their needs. Additional information can be found at www.workcover.nsw.au