Compensation Compliance and Enforcement Policy

Transcription

1 Information about Compensation Compliance November 2010

2 Contents About WorkSafe 1 Our vision 1 Our mission 1 Our values 1 Compensation Compliance 2 WorkSafe s role 2 Victoria s accident compensation laws 2 Constructive compliance approach 2 Principles of enforcement 3 Strategic enforcement priorities 4 Detecting non-compliance 4 Return to work inspections 5 Audits and investigations 6 Special powers relating to service providers during investigations 10 Enforcement options 11 Appendix Schedule of offences 17 This publication is protected by copyright.

3 About WorkSafe Our vision Victorian workers returning home safe every day. Our mission Working with the community to deliver outstanding workplace safety, together with quality care and insurance protection to workers and employers. Our values The work we do is important because we impact upon many people s lives, every day. We have a responsibility to ensure that strong values guide us in everything we do. WorkSafe Victoria is: Constructive in the way we provide information, advice and service Accountable for what we do and what we say. We live up to our promises Transparent in the way we work; our environment is open and honest Effective by working collaboratively to deliver high quality services Caring by showing empathy in our dealings with everyone we work with. WorkSafe Victoria Compensation Compliance 1

4 Compensation Compliance and Enforcement Policy The Compensation Compliance provides an overview of how WorkSafe monitors and enforces Victoria s accident compensation laws and incorporates WorkSafe s general prosecution guidelines, as published in the Victorian Government Gazette. The guidelines are available on WorkSafe s website, worksafe.vic.gov.au. WorkSafe s role WorkSafe is the manager and regulator of Victoria s workplace health and safety system and workers compensation scheme. WorkSafe s overall responsibilities include: monitoring and enforcing Victoria s occupational health and safety laws helping to prevent work-related deaths, injuries and disease providing adequate and just workplace injury insurance assisting injured workers back into the workforce managing the workers compensation scheme by ensuring the prompt delivery of services and adopting prudent financial practices. This policy relates to WorkSafe s functions of assisting and compensating injured workers in accordance with the workers compensation scheme. WorkSafe s functions in relation to preventing work-related deaths injuries and disease and enforcing Victoria s occupational health and safety laws are undertaken by WorkSafe s Health and Safety Division. More information about occupational health and safety regulation is available on the WorkSafe website, worksafe.vic.gov.au. Victoria s accident compensation laws WorkSafe administers Victoria s accident compensation laws, which are: Accident Compensation Act 1985 (the AC Act) Accident Compensation (WorkCover Insurance) Act 1993 (the ACWI Act). Constructive compliance approach WorkSafe applies a strategy of constructive compliance a balanced combination of positive motivators and deterrents. The Victorian community benefits both socially and financially from an effective and efficient workplace accident compensation system. Achieving this goal requires the cooperation and support of all participants in the scheme employers, workers and service providers. Constructive compliance recognises the importance of providing all participants with comprehensive information and education about their duties and responsibilities. This strategy combines encouraging good practices with deterring unacceptable performance. 2 Compensation Compliance WorkSafe Victoria

5 Encouraging better performance WorkSafe encourages a more efficient and effective workers compensation scheme by: communicating and engaging with stakeholders providing practical and constructive advice and information about rights, duties and responsibilities under Victoria s accident compensation laws fostering cooperative and consultative relationships between employers and workers supporting and involving scheme participants in the provision and promotion of education and training providing financial incentives for improved performance (eg the Prevention Fund and incentives under the premium system). Deterring poor performance and scheme abuse WorkSafe deters poor performance in relation to workplace injury compensation by: detecting and investigating potential breaches of accident compensation laws taking appropriate enforcement action in response to breaches seeking appropriate sentencing outcomes in prosecutions publishing information regarding the nature and outcome of enforcement actions informing scheme participants of the nature and outcome of enforcement actions and providing advice on compliance. Principles of enforcement In addition to the values that underpin all WorkSafe s activities, these being that all activities should be constructive, accountable, transparent and effective, the following principles apply to WorkSafe s compliance and enforcement activities: Targeted WorkSafe targets its activities to the areas of most need and effect. Proportionate Enforcement action should be proportionate to the seriousness of the breach. Consistent A consistent approach should be taken in similar situations or circumstances to achieve consistent outcomes. Fair All compliance and enforcement activities (including decision-making) must be fair ie undertaken with impartiality, balance and integrity. In addition, all prosecution-related activities must be undertaken in accordance with WorkSafe s general prosecution guidelines. The guidelines are available on WorkSafe s website, worksafe.vic.gov.au. WorkSafe Victoria Compensation Compliance 3

6 Strategic enforcement priorities WorkSafe has a clear strategic focus for its compensation-related compliance and enforcement activities. WorkSafe targets the following: 1. The appropriateness of the payments made to workers, employers and service providers with a particular focus on dishonest behaviour and practices by workers, employers and those who provide services to injured workers. 2. Failures by employers to comply with return to work obligations set out in Part VIIB of the AC Act, including to plan a worker s return to work, to consult about a worker s return to work and to provide employment to injured workers to the extent that it is reasonable to do so. 3. Behaviours that unduly delay or complicate injured workers access to entitlements or appropriate treatment, such as failing to make weekly payments. 4. Inappropriate use of information, especially such as inappropriate use of personal and health information about workers. 5. Discrimination or threats to discriminate against workers when making or pursuing claims for compensation or giving notice of injury. 6. Interference with Return to Work inspectors and other persons authorised to exercise WorkSafe s powers. 7. Breaches by private investigators of the Code of Practice for Private Investigators and surveillance legislation. 8. Premium evasion and premium avoidance schemes. 9. Breaches of the AC Act or contractual obligations by self-insurers. From time to time, WorkSafe will focus on other areas and will ordinarily publish this information on its website, worksafe.vic.gov.au, and/or through the media. Detecting non-compliance WorkSafe receives complaints from scheme participants and members of the public about alleged breaches of accident compensation laws. WorkSafe has a dedicated hotline for these complaints: Complaints line: (03) and assessment_centre@worksafe.vic.gov.au. WorkSafe also gathers and uses data and scheme information to target particular areas of the scheme for proactive compliance reviews, in line with WorkSafe s strategic priorities. 4 Compensation Compliance WorkSafe Victoria

7 Return to work inspections Return to Work (RTW) inspectors are specially trained inspectors who carry out workplace inspections to ensure employers meet their return to work obligations. RTW inspectors aim to promote and support employers and injured workers to achieve safe and sustainable return to work in the workplace. This includes promoting effective occupational rehabilitation of injured workers that leads to early, safe and sustained return to work. The role of RTW inspectors The primary role of RTW inspectors is to ensure that employers comply with the return to work part of the AC Act. They are a key part of WorkSafe s constructive compliance strategy. Inspectors carry out their role by undertaking workplace inspections to: assess employer compliance with return to work obligations provide advice and education on obligations identify where enforcement action needs to be taken. RTW inspectors also have the power to provide advice in relation to other parts of the AC Act. Actions that can be taken by RTW inspectors If return to work obligations under the AC Act are not being complied with, RTW inspectors are able to take action to enforce the law using Return to Work Improvement Notices. These are written directions requiring a person to remedy a contravention of the law within a specified time. Inspectors will reach their decision to issue a Return to Work Improvement Notice after making appropriate enquiries with the relevant workplace parties. Their decisions also take into account: the nature and circumstances of the alleged contravention WorkSafe s compliance and enforcement policies. A RTW Inspector will issue a Return to Work Improvement Notice to the duty holder and copies may be provided to the employer s WorkSafe Agent, where relevant. In the event that the notice is in relation to the return to work of a particular worker, a copy of the notice will also be provided to that worker by the inspector. Further investigation of contraventions may also be undertaken by WorkSafe to determine whether the contravention of the AC Act warrants prosecution or some other form of enforcement action. This includes circumstances where the employer has failed to comply with an improvement notice issued by a RTW inspector. WorkSafe Victoria Compensation Compliance 5

8 Workplace visits RTW inspectors visit workplaces for a number of different reasons. Most visits relate to workplaces where a worker with a workers compensation claim has been unable to return to work. Particular priority is given to visiting those workplaces where a worker has been certified by their treating health practitioner as having a capacity for work, but has not yet been offered suitable employment, where the employer may have a legal obligation to provide the worker with such employment. Inspectors will also attend workplaces in response to a complaint that an employer is not complying with their legal obligations under the AC Act. Approach to workplace visits Once a workplace has been identified for a visit, a RTW inspector will normally contact the employer indicating that a visit will be made to their workplace. If the visit involves a particular injured worker s claim, the inspector will also contact the injured worker to give them an opportunity to provide feedback on their return to work. If the injured worker is back at work, the inspector will ask to speak to the injured worker during the visit. An employer can request the presence of a representative (eg workers compensation consultant) or their Agent at a visit by an inspector. Injured workers can also have a representative or support person present during discussions, such as a union representative, their health and safety representative, a family member or work colleague. Following a visit, the RTW inspector will provide the employer with a report about the inspector s observations during the visit and any enforcement action taken. The inspector may also provide a copy of the entry report to any workers whose claims were looked at during the visit and the relevant WorkSafe Agent. Audits and investigations An audit or investigation may be triggered by information WorkSafe obtains through a complaint or through WorkSafe s proactive activities (eg a review of payments to a group of health service providers or visits to workplaces by RTW inspectors). Notifying Victoria Police of investigations WorkSafe must notify the Chief Commissioner of Victoria Police of an inquiry or investigation into offences under sections 248 (fraud), 248AA (bribery), 248A (false or misleading information by a professional service provider) or 249 (false information) of the AC Act, where WorkSafe reasonably believes that an offence was or may have been committed. Before notifying the Chief Commissioner of an inquiry or investigation, WorkSafe must have sufficient information or evidence on which to base a reasonable belief that an offence was or may have been committed. 6 Compensation Compliance WorkSafe Victoria

9 Investigative powers WorkSafe has various powers to obtain information and evidence under the AC Act. These are: the power to obtain information and evidence the power to inspect premises the power to apply to a magistrate for a warrant for police to search premises. WorkSafe also has RTW inspectors dedicated to monitoring and enforcing return to work obligations. (More information about RTW inspectors and their powers is on page 5.) Obtaining information WorkSafe may issue a notice requiring any person to provide information or attend and give evidence or to produce all books in their custody or control (section 239, AC Act). Books means any register or other record of information and any accounts or accounting records, however compiled, recorded or stored, and also includes any document. Inspecting premises WorkSafe has the power to enter, inspect and examine any premises and to require a person at the premises to give information and produce books to determine whether there has been a contravention of the AC Act or the ACWI Act or to enforce either Act. WorkSafe may only exercise its power to inspect at a reasonable time, which is usually during the normal operating hours of the business in question (section 241, AC Act*). Interference with the exercise of powers It is an offence under section 241 of the AC Act for a person to: obstruct or hinder a person exercising powers under section 239 or 240, or without reasonable excuse, fail or refuse to comply with a notice issued pursuant to section 239 or 240, or assault, intimidate or threaten (or attempt to assault, intimidate or threaten) a person exercising powers under section 239 or 240. * Note: A similar power to obtain information from employers is also contained within section 60 of the ACWI Act. WorkSafe Victoria Compensation Compliance 7

10 Search Warrants WorkSafe may apply to a magistrate for a warrant to search premises under section 240A of the AC Act*. The magistrate may grant the search warrant if there are reasonable grounds to believe there are any books on the premises that are relevant to determining whether any of the provisions of the AC Act are being or have been contravened. It is an offence under section 240A(4) for a person to obstruct or hinder, oppose or refuse to permit such a search or seizure, or to assault or attempt to assault a person employed or acting in the execution or under the authority of a warrant. The following circumstances are examples of when WorkSafe may apply for a search warrant: WorkSafe believes that evidence may be destroyed, removed, altered or hidden. WorkSafe has issued a notice pursuant to section 239 or made a requirement under section 240 to provide information or produce a document, and: the notice or requirement has not been complied with, and/or the production of the information or document has been refused, and/or the existence of the document sought has been denied, and/or WorkSafe suspects that such a notice or requirement will be ineffective in obtaining the information required. The information or document is in the possession or control of a person who may be incriminated in relation to the offence under investigation if required to produce information under section 239 or 240 of the AC Act. A person has denied the existence of evidence where there are reasonable grounds to believe it does exist. Recorded interviews WorkSafe investigators may invite a person to attend a recorded interview regarding an allegation or suspicion that the person has breached accident compensation laws. WorkSafe will also arrange for an interpreter to be present if needed in such interviews. There are always two investigators present during an interview to ensure that there can be corroboration of what occurs. All interviews are recorded and the investigators always provide the interviewee with a copy of the CD of interview within seven days. In addition, or as an alternative to attending a formal recorded interview, a person can provide WorkSafe with written submissions, evidence or documents that they wish WorkSafe to consider. Legal assistance A person under investigation is entitled to seek legal advice and to have their lawyer or an independent person who is not connected with the investigation present during an interview with WorkSafe investigators. * Note: A similar power to apply for the issue of a search warrant is contained in section 70 of the ACWI Act. 8 Compensation Compliance WorkSafe Victoria

11 Use of information obtained Any information obtained pursuant to section 239, 240 or 240A is subject to the secrecy provisions contained in section 243 of the AC Act, which prevent WorkSafe employees from using the information obtained for anything other than official duties or the performance of their functions or powers. The secrecy provisions do not prevent WorkSafe employees from disclosing information for a range of other reasons set out in section 243(2), such as production of documents to a court in the course of criminal proceedings or providing documents or information to other government agencies, including the Transport Accident Commission. Client legal privilege A person may be able to claim client legal privilege in relation to certain information as a reasonable excuse not to comply with their usual duty to provide information or evidence to WorkSafe under sections 239, 240 and 240A of the AC Act. WorkSafe accepts that its powers are subject to a valid claim of legal professional privilege and is committed to exercising its powers in a fair and lawful way. WorkSafe investigators will give any person subject to a section 239 notice, inspection under section 240 or a search warrant reasonable time to seek legal advice (or in the case of a solicitor or barrister, to seek instructions) in relation to making a claim of privilege. A claim of client legal privilege must be made by the person being asked to provide the information or his or her legal adviser. If a claim of client legal privilege is made, WorkSafe will seek written confirmation of: the claim for privilege the documents over which privilege is claimed the basis for the claim. If WorkSafe believes the claim is not a valid claim for client legal privilege, WorkSafe may take the following action: provide a response to the person making the claim and explain any proposed action look for the information elsewhere challenge the claim of privilege in court, and/or apply for a warrant to search for and seize the document and deliver it to a court to decide. Once WorkSafe is aware that a document is subject to a claim of client legal privilege, WorkSafe will: not look at the contents of the document deliver the document to the court that issued the warrant abide by the decision of the court in relation to the claim of privilege. WorkSafe Victoria Compensation Compliance 9

12 Special powers relating to service providers during investigations If WorkSafe reasonably suspects that a service provider (eg. a health care provider) has committed an offence against the AC Act or an offence against the Crimes Act 1958 in connection with a claim for compensation, WorkSafe can suspend payments to the service provider. Suspensions remain in force until: the prosecution is completed, or where no prosecution is commenced, when WorkSafe decides not to prosecute for the suspected offence or after six months (whichever occurs first). Before suspending payments, WorkSafe must give the service provider written notice of the proposed suspension and invite the service provider to make any submissions within 28 days as to why the suspension should not be imposed. In determining whether to suspend payments pending an investigation and/or prosecution, WorkSafe takes into account the circumstances of each individual case, including the following considerations: the seriousness of the suspected offence and the strength of the evidence upon which the suspicions are based the perceived risk to injured workers or the scheme associated with continuing to pay the provider for services pending the finalisation of the investigation and/or prosecution the need to maintain stakeholder and community confidence in the scheme the proportionality and fairness of the suspension in the particular case the impact that any suspension will have on the service provider and any potential flow on impacts to others whether there are less burdensome alternatives to suspension to protect injured workers and the scheme the level of cooperation provided by the provider during WorkSafe s inquiries any remedial steps taken by the provider with respect to WorkSafe s concerns any other enforcement action that is likely to be taken against the service provider any submissions made by the provider as to why the suspension should not be imposed. Providers can seek a review of WorkSafe s decision to suspend payments through the Victorian Civil and Administrative Tribunal. If the service provider is subsequently convicted or found guilty of an offence against the AC Act, the court may order that any costs for services rendered during the period of the suspension are not payable. The court may also: disqualify the provider from the scheme for a specified period revoke the provider s approval (where applicable) to provide services preclude the provider from re-applying for approval for a specified period. 10 Compensation Compliance WorkSafe Victoria

13 Enforcement options WorkSafe determines the most appropriate enforcement tool to be used in accordance with WorkSafe s general prosecution guidelines. The guidelines are available on WorkSafe s website, worksafe.vic.gov.au. Depending on the type of breach, the following enforcement options are available to WorkSafe: commencing a prosecution accepting an enforceable undertaking issuing a letter of caution seeking reimbursement or taking civil (rather than criminal) action revoking, suspending or cancelling permissions (eg approvals, authorisations) referring matters to professional, registration or disciplinary bodies or other agencies disqualifying service providers from the scheme terminating weekly payments applying administrative penalties seeking voluntary compliance. Prosecution Where sufficient admissible evidence exists of a breach of compensation laws and a prosecution would be in the public interest, WorkSafe will commence and conduct the prosecution in accordance with its general prosecution guidelines. The guidelines are available on WorkSafe s website, worksafe.vic.gov.au. WorkSafe can prosecute offences under the AC Act, the ACWI Act and offences under the Crimes Act 1958 that are connected with a claim for compensation. A schedule setting out the detail of each offence that WorkSafe may prosecute and the maximum penalty that applies to each offence can be found in the Appendix (see page 16). In relation to most offences, the time for WorkSafe to bring charges against a person for an offence is limited. In relation to some offences, charges must be brought within the time period contained in the legislation where the offence is set out. Where an offence does not have a time limit stipulated in the legislation, then the time limit depends on the nature of the charge. Where a prosecution has been commenced, WorkSafe may negotiate with the alleged offender in relation to: which charge(s) among multiple available charges will be pursued whether one or more charges may be withdrawn if the accused person pleads guilty to a particular charge or charges, thereby removing the need for a contested hearing the summary of the offence(s) that will be presented to the court in cases where the accused person pleads guilty what parts of the evidence or elements of a charge are agreed between the prosecution and defence, in order to narrow the issues in dispute and reduce the length of contested hearings. WorkSafe can also seek a refund of money from offenders under section 249A of the AC Act following a finding of guilt by a court of an offence under the AC Act or an offence under the Crimes Act 1958 that is connected with a claim for compensation. WorkSafe Victoria Compensation Compliance 11

14 Enforceable undertakings As an alternative to prosecution, WorkSafe may accept a written undertaking by a person in connection with a contravention (or alleged contravention) of the AC Act. Once WorkSafe accepts an enforceable undertaking, WorkSafe cannot prosecute the person for the offence. If WorkSafe considers that the undertaking has been breached, WorkSafe may apply to the Magistrates Court of Victoria for enforcement of the undertaking. If the Magistrates Court is satisfied that the undertaking has been breached, the court may: make an order that the person must comply with the undertaking make an order that the person take specified action, or make any other order it considers appropriate. The undertaking may be withdrawn or varied only with the consent of WorkSafe. Letters of caution WorkSafe may issue a letter of caution as an alternative to prosecution. A letter of caution gives notice to an alleged offender that WorkSafe has detected a breach of Victoria s accident compensation laws which it could prosecute, but that after consideration of WorkSafe s general prosecution guidelines, it will not prosecute for the breach. WorkSafe will generally issue a letter of caution where: there is sufficient evidence of the breach it is a relatively minor breach some form of enforcement action is warranted but in all the circumstances, it is not in the public interest to prosecute the breach. A previous letter of caution may be taken into account by WorkSafe in deciding whether to prosecute any subsequent offence for a similar contravention. WorkSafe will not use a previous letter of caution during prosecution or sentencing for subsequent offending (unless the offender asserts that they have not previously breached the law). Seeking reimbursement and civil action Pursuing recovery of inappropriate payments or overpayments is an important part of WorkSafe s role in protecting the financial viability of the scheme and discouraging abuse. WorkSafe may pursue civil action where there is insufficient evidence to bring a criminal charge or the relevant circumstances do not give rise to any offence under accident compensation laws. Civil action involves WorkSafe suing a person for a remedy (usually the payment of money) whereas criminal prosecution involves WorkSafe asking the court to impose a criminal punishment upon making a finding of guilt. Criminal charges must be proved beyond reasonable doubt, whereas civil causes of action must be proved only on the balance of probabilities. WorkSafe carefully considers the appropriate timing of civil action where criminal action is contemplated and may delay bringing any civil case until criminal proceedings are concluded or at the point in time when it has decided not to prosecute a case. 12 Compensation Compliance WorkSafe Victoria

15 Revocation, suspension or cancellation of permissions WorkSafe authorises and permits certain people to do certain things for the purposes of the scheme. For example, WorkSafe approves certain appropriately qualified healthcare providers to provide services to injured workers. Subject to legal requirements, WorkSafe may decide to revoke, suspend or cancel any authorisation or permission given to a person in order to deal with behaviours or practices identified in its investigation or audit. Such action is a protective measure and may be undertaken even where steps have been taken to remedy a contravention or where an offender has been otherwise punished (eg fined or imprisoned). WorkSafe recognises that the revocation, suspension or cancellation of regulatory permissions may have serious consequences for the permission holder and may also have serious adverse flow on effects. When making decisions about permissions, WorkSafe balances these considerations with the paramount need to protect injured workers and the scheme. In making a decision whether or not to issue or renew a regulatory permission, WorkSafe will consider the person s history of compliance. Referral to professional bodies If WorkSafe is concerned about the adequacy, appropriateness or frequency of any services provided to injured workers, WorkSafe may refer its concerns to the professional body regulating the service provider (section 249B of the AC Act). Where the service provider is not regulated by a professional body, WorkSafe may carry out its own enquiries to determine whether there has been any improper conduct. WorkSafe may suspend any payments to the person pending the outcome of the professional body s review or WorkSafe s review (as the case may be). Before suspending payments, WorkSafe must give the provider written notice of the proposed suspension and invite the provider to make any submissions within 28 days as to why the suspension should not be imposed. In determining whether to suspend payments pending review, WorkSafe takes into account the circumstances of each individual case, including the following: the seriousness of the alleged concerns and the strength of the evidence upon which the concerns are based the perceived risk to injured workers or the scheme associated with continuing to pay the provider for services pending the review of the provider s conduct the need to maintain stakeholder and community confidence in the scheme the proportionality and fairness of a suspension in the particular case the impact that any suspension will have on the service provider, and any potential flow on impacts to others whether there are less burdensome alternatives to suspension to protect injured workers and the scheme the level of cooperation by the provider during WorkSafe s inquiries any remedial steps taken by the provider with respect to WorkSafe s concerns any other enforcement action that is likely to be taken against the service provider any submissions made by the provider as to why the suspension should not be imposed. WorkSafe Victoria Compensation Compliance 13

16 A suspension of payments does not mean that the service provider cannot provide services to injured workers during the period of the suspension. However, the service provider will not be paid for any services rendered to injured workers during the suspension period. Suspensions stay in place until the completion of the professional body s or WorkSafe s review (as the case may be). Providers can seek a review of WorkSafe s decision to suspend payments through the Victorian Civil and Administrative Tribunal. Disqualifications WorkSafe can effectively disqualify a service provider from the scheme for a specified period if the service provider: is convicted or found guilty of an offence punishable by imprisonment for a term of two years or more or by a maximum fine of not less than 240 penalty units is convicted or found guilty of an offence punishable by imprisonment for a term of two years or more under a law of another state, a territory or the Commonwealth. WorkSafe can also disqualify a service provider from the scheme for a specified period if a professional body finds, or considers on reasonable grounds, that: the service provider has engaged in unprofessional conduct or professional misconduct, or the ability of a service provider to practise is affected because of the person s physical or mental health or the person s incapacity, or the service provider is not of good character or is otherwise not a fit and proper person. Before suspending payments, WorkSafe must give the provider written notice of the proposed disqualification and invite the provider to make any submissions within 28 days as to why the disqualification should not be imposed. In determining whether to disqualify a service provider from the scheme, WorkSafe takes into account the circumstances of each individual case, including the types of considerations referred to in relation to referrals and suspensions. WorkSafe gives notice of disqualifications to the professional body that regulates the conduct of the service provider (where one exists) and Medicare Australia. Providers can seek a review of WorkSafe s disqualification decisions through the Victorian Civil and Administrative Tribunal. 14 Compensation Compliance WorkSafe Victoria

17 Termination of weekly payments and medical services If WorkSafe is satisfied that a worker has fraudulently obtained weekly payments and/or medical and like services, WorkSafe may terminate those payments (section 114(3) and 99AE AC Act). In determining whether termination of weekly payments and/or medical and like services for fraud is appropriate, WorkSafe considers all the circumstances of the individual case, including: the strength of the evidence of the worker s fraud the nature, extent and seriousness of the worker s fraud the level of cooperation provided by the worker during WorkSafe s inquiries any restitution made (or genuine offer of restitution) the prior history of the worker the impact of termination of weekly payments on the worker, and any flow on impact on others the proportionality of termination of weekly payments in response to the fraud the fairness of termination in the particular case any other enforcement action that is likely to be taken against the worker for the fraud. Administrative penalties Employers must forward all claims for compensation together with any related Certificate of Capacity to WorkSafe (except for medical expense claims which have been accepted by the employer and are within the employer s excess) within 10 days of receiving the claim. It is an offence not to comply with this requirement. In addition to any penalty under the Act, an employer may also be held liable for any weekly payments of compensation owed to a worker until the claim and certificate are received by WorkSafe s Agents, unless the employer can demonstrate that there was reasonable cause for the delay. This is in addition to the employer s excess under section 125A of the AC Act. Employers who fail to obtain or keep in force a WorkSafe injury insurance policy may also be liable for a penalty of an amount up to twice the amount of the premium that would have been payable under the policy. Voluntary compliance If WorkSafe is satisfied that a person has taken timely and satisfactory steps to remedy a detected breach, WorkSafe may, after considering the factors set out in its general prosecution guidelines and this policy, decide to take no further action. WorkSafe Victoria Compensation Compliance 15

18 Publication of enforcement actions and outcomes WorkSafe publicises information about its enforcement actions in order to raise awareness of accident compensation laws and the consequence of non-compliance, thereby deterring people from engaging in similar conduct. WorkSafe may publicise information about prosecutions for example by: summarising the case on its website speaking to the media and sending press releases about a case using a case as a teaching tool at seminars, conferences and in materials distributed to various groups, such as employers, employer groups and trade unions using information about a case in WorkSafe publications using information from a case to gather and publish data and statistics. The amount of information disclosed by WorkSafe depends on the stage of the investigation and prosecution. At the start of an investigation, WorkSafe may confirm that an investigation has commenced, but will usually not make further comment on the specific facts. Once WorkSafe has laid charges and throughout any court proceedings or trial, WorkSafe generally confines its comments about the case to sending out information that is in the public interest through media releases. Upon a finding of guilt by a court in relation to breaches of accident compensation laws, WorkSafe usually publishes a summary of the case on its website, including identifying details, and may also disclose information about the outcome in communications to the media, in WorkSafe publications and in seminars, conferences and other materials. If a person is found not guilty or WorkSafe withdraws charges, WorkSafe generally limits disclosure about the case to information that is already in the public domain as a result of the prosecution process and where there is a clear public interest in disclosure of the information. WorkSafe may speak publicly about the proceedings at the request of the person found not guilty to clarify the status of proceedings. At all times, WorkSafe aims to be accurate, impartial, balanced and fair in the way it communicates about investigations and prosecutions. At any stage of the investigation and prosecution process, WorkSafe may disseminate information in relation to a case for the purpose of preventing similar offences from occurring. WorkSafe may also disclose information about a case to the public at any time where it considers it is necessary to quell speculation or to correct or forestall inaccurate media reports. WorkSafe may publish identifying information about a case in relation to enforceable undertakings accepted or letters of caution issued in lieu of a prosecution. WorkSafe also publishes on its website the details of disqualifications and suspensions, including the names and business addresses of service providers who have been disqualified or suspended. 16 Compensation Compliance WorkSafe Victoria

19 Appendix Schedule of offences Accident Compensation Act 1985 (AC Act) The AC Act contains a number of offences for failing to comply with certain provisions of the Act. These offences are set out in the following table. Offence Section Offence Description Penalty 56(11) Knowingly make a false or misleading statement (conciliation) 58B 96A(7) Fail to comply with direction of conciliation officer Worker or employer failing to provide information under 96A (notification of entitlement to certain payments) 101(2) Employer failing to keep register of injuries 101(3) Employer failing to enter particulars of injury in register of injuries 108(1) Employer failing to forward claim or certificate of capacity 108(3) Employer failing to forward return of claims within employer s excess 114D(2) Employer failing to make weekly payments 123(1) Employer failing to notify worker s return to work or change in weekly earnings 129M(2) Entering into arrangement with contributor for purposes of securing that a contributor will be unable to pay the amount of an assessment 145(5) Self-insurer failing to give notice of circumstances specified in sub-ss (2), (3)(b) 7 (4) Individuals: 180 penalty units or six months imprisonment or both Corporations: 900 penalty units 40 penalty units Individuals: 40 penalty units Corporations: 240 penalty units Individuals: 40 penalty units Corporations: 240 penalty units Individuals: 40 penalty units Corporations: 240 penalty units Individuals: 100 penalty units Corporations: 500 penalty units WorkSafe Victoria Compensation Compliance 17

20 Appendix Schedule of offences Accident Compensation Act 1985 (AC Act) continued Offence Section Offence Description Penalty 146A(2) Self-insurer failing to submit return One penalty unit for each day the offender is in default 146A(3) Self-insurer submitting return containing false material particulars 151(3) Employer, ceasing to be a self-insurer, failing to give the Authority tail claims information 151D(3) & (3A) Employer, ceasing to be a self-insurer, contravenes sub-s (2) (ensuring a guarantee in place) 152(5) Employer, being a subsidiary of a self-insurer and becoming a non- WorkCover employer, failing to give the Authority tail claims information 155(2) Breach of secrecy provisions (self-insurer) 177 Non-WorkCover employer failing to comply with Part VIA 181 Agents engaging in prohibited conduct (breach of anti-touting provisions) 183(1) Legal practitioners who acts for person on a claim engaging in prohibited conduct 184(5) Legal practitioner failing to disclose on certificate that knew or suspected agent engaged in prohibited conduct 186(3) Contravention of direction not to act for a person in relation to a claim or type of claim 194(2) Employer failing to provide suitable or pre-injury employment 195(1) Employer failing to plan return to work Individuals: 120 penalty units 500 penalty units 600 penalty units; and 300 penalty units each day for a continuing offence Individual: 120 penalty units 500 penalty units Individuals: 100 penalty units Corporations: 500 penalty units Individuals: 120 penalty units; and 60 penalty units each day for a continuing offence ; and 300 penalty units each day for a continuing offence Individuals: 180 penalty units Corporations: 900 penalty units Individuals: 120 penalty units 18 Compensation Compliance WorkSafe Victoria