External Guideline #21 Employer commencement as a self-insurer Version 4 1 April 2015
Contents 1 Overview... 4 2 Employer election... 4 3 Election to assume tail claims... 5 3.1 Transfer date... 5 3.2 Employer requirements... 6 3.2.1 Guarantee... 6 3.2.2 Employer s liability to pay compensation... 9 3.2.3 Contingent liability insurance... 11 3.2.4 Resources... 11 3.2.5 Management of tail claims... 12 3.2.6 Claims management policies... 14 3.2.7 Claims & workplace data... 14 3.2.8 Termination of insurance in relation to tail claims... 16 3.2.9 If you are injured poster... 16 3.2.8 Requirements if the employer s eligible subsidiary is a former self-insurer... 17 3.3 WorkSafe requirements... 18 3.3.1 Financial settlement... 18 3.3.3 Direct payees... 21 3.3.4 Compensation payments... 21 3.3.5 Claim files review and claims listings... 21 3.3.6 Delivery of documents... 22 3.3.7 Notification (injured workers and service providers)... 22 4 Election not to assume tail claims...23 4.1 Retention of claims by WorkSafe... 23 4.2 Employer requirements... 23 4.3 Requirements if the employer s eligible subsidiary is a former self-insurer... 25 4.4 WorkSafe requirements... 25 5 Privacy and confidentiality...26 5.1 Health information and personal information... 26 5.2 Restrictions on access to health information and personal information... 26 5.3 Obligations in relation to confidential information... 26 5.4 Compliance with the WIRC Act... 27 6 Further information...27 7 Other reference material...28 Appendix A Glossary...29 Appendix B Tail claims listings...34 Appendix C Election to assume tail claims...35 Appendix D Revocation of approval...37 Page 2 of 40
Executive summary This document is intended to provide an employer with an understanding of the requirements that must be met in order for an employer to commence operating as a selfinsurer. It applies to an employer that has been initially approved as a self-insurer. The requirements that must be met by an employer will vary depending upon whether the employer elects to assume or not to assume the liability for, and the responsibility for management of, its tail claims and are covered within this guideline. Page 3 of 40
1 Overview An approval of an employer as a self-insurer takes effect from the date determined by 1 (WorkSafe) and notified in writing to the employer 2. The approval may be subject to compliance with a term and condition or a condition precedent determined by WorkSafe which relates to the employer before the employer becomes a self-insurer. An employer that has been approved as a self-insurer may assume the liability for and the responsibility for management of, its tail claims 3. If an employer elects to assume the liability for its tail claims, WorkSafe must make payment to the employer of a settlement amount calculated in accordance with the Ministerial Order made under section 401 of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act). If an employer elects not to assume the liability for its tail claims, WorkSafe will retain the liability for, and the responsibility for management of, the employer s tail claims. The requirements that must be met by an employer will depend upon whether the employer elects to assume or not to assume the liability for, and the responsibility for management of, its tail claims and are covered in sections 3 and 4 of this document. The requirements may apply either prior to or from the date the employer commences operating as a self-insurer. If an employer s approval is subject to a term and condition or a condition precedent, WorkSafe will advise the employer of the requirements that must be met. The requirements are not covered within this document as they are determined on a case by case basis. The employer must provide to WorkSafe, on the date its approval as a self-insurer takes effect, a guarantee in accordance with section 393 of the WIRC Act. If the employer elects to assume the liability for its tail claims, the guarantee must also be provided in accordance with sections 399 and 400 of the WIRC Act. 2 Employer election When applying for approval as a self-insurer, an employer may elect to assume the liability for, and the responsibility for management of, its tail claims. The forms and schedules completed by an employer when applying for approval as a self-insurer requests confirmation of the employer s election. For further details, refer to Form #2 Application for approval as a self-insurer. 1 is a trading name of the Victorian WorkCover Authority. 2 Employer as defined under sections 3 and 372 of the WIRC Act (see glossary in Appendix A). 3 Tail claims is defined in the glossary (see Appendix A). Page 4 of 40
3 Election to assume tail claims An employer that elects to assume the liability for, and the responsibility for management of, its tail claims will assume the liability on the transfer date 4, upon the provision of a guarantee. The activities undertaken to enable an employer to assume the liability and management of its tail claims and to commence as a self-insurer are detailed in the following paragraphs 3.1 to 3.3. The activities cover requirements that must be met by the employer and WorkSafe, and includes the ongoing requirements after the tail claims liability have been assumed by the employer. 3.1 Transfer date The transfer date is the date agreed between WorkSafe and the employer, on which the liability for, and the responsibility for management of, the tail claims are assumed by the employer. The transfer date is the same date that the employer s approval as a self-insurer takes effect. In determining the transfer date, WorkSafe will have regard to: the timings in respect of the employer obtaining an actuarial valuation of its tail claims liability whether the actuarial valuation complies with section 393 and subsections 400(2) and (3) of the WIRC Act whether the employer s proposed guarantee complies with o o in respect of the employer s tail claims liability, subsection 400(1) of the WIRC Act; in respect of the employer s assessed liability, section 393(2) of the WIRC Act whether payments of all outstanding premium for statutory contracts of insurance and penalties under the WIRC Act or the Accident Compensation Act 1985 (ACA), where applicable, have been finalised by the employer whether all rateable remuneration paid or payable under the WIRC Act has been certified by the employer compliance with any condition precedent the employer is subject to as determined by WorkSafe (where applicable) compliance with any terms or conditions the employer is subject to which relates to the employer before the employer becomes a self-insurer (where applicable) the volume of claims data and claim files and the number of workplaces of the employer 4 Transfer date is defined in paragraph 3.1 of this document and in the glossary (see Appendix A). Page 5 of 40
whether the employer has sufficient resources for the purpose of administering claims for compensation, return to work (RTW), including occupational rehabilitation, and occupational health and safety (OHS) functions whether the employer has adequate information management systems and processes for managing claims and associated activities and satisfies reporting requirements to WorkSafe; and the adequacy of the proposed security or security in place to ensure the confidentiality of all information (including physical and electronic) to be obtained under the WIRC Act. 3.2 Employer requirements The requirements that must be met by the employer are detailed in the following paragraphs 3.2.1 to 3.2.10, and apply either prior to or from the transfer date, as the case may be. 3.2.1 Guarantee a) Overview Upon the provision of a guarantee in accordance with section 393 and 400 of the WIRC Act on the transfer date, the employer will assume the liability for, and the responsibility for management of, its tail claims. On and from the transfer date and until such time as the employer ceases as a selfinsurer and WorkSafe assumes the liability for the tail claims under subsection 407 of the WIRC Act, an employer must have in force at all times a guarantee in respect of its liability [subsections 393(1)(a) and 399(2)]. Under subsections 393(2) and 400(1) of the WIRC Act, the guarantee must: be given by an authorised deposit-taking institution (ADI) to or in favour of WorkSafe be in a form approved by WorkSafe guarantee must guarantee payment for amounts not less than: i) one and one-half times the amount of the assessed liability 5 of the employer or $3,000,000, whichever is greater [subsection 393(2)(c)]; and ii) one and one-half times the amount of the assessed tail claims liability of the employer or the eligible subsidiary, as the case may be [subsection 400(1)(c)]. 5 Assessed liability is defined in the glossary (see Appendix A). Page 6 of 40
An employer may elect to have in place more than one guarantee. According to the current guarantee template approved by WorkSafe, the guarantee payment is entered as a single amount. Consequently, if the employer elects to have in place one guarantee, a single amount which represents the sum of i) and ii) above is the guarantee payment amount. WorkSafe will forward to the employer a guarantee template approved by WorkSafe prior to the transfer date and seek confirmation from the employer that it will deliver a guarantee, in accordance with legislative requirements, to WorkSafe by the transfer date. To ensure that the guarantee is in a form approved by WorkSafe, the employer is required to forward to WorkSafe, no later than 15 working days prior to the transfer date, its proposed guarantee so that WorkSafe can review and determine whether it is in the approved form. If WorkSafe does not approve the proposed guarantee, the employer will be requested to amend the guarantee accordingly prior to the transfer date. b) Specific requirements The requirements in respect of a guarantee that must be held by an employer under section 393, 399 and 400 of the WIRC Act are as follows: i) Initial actuarial valuation of tail claims liability Prior to the transfer date, the employer must obtain an actuarial valuation 6 of its tail claims liability and liability under section 393(3) of the WIRC Act and provide a copy of the valuation to WorkSafe. The actuarial valuation must be undertaken by an actuary approved by WorkSafe and be in accordance with the guidelines approved by WorkSafe (refer to External Guideline #5 - Actuarial assessment of self-insurance liabilities). For the purpose of undertaking the actuarial valuation, the tail claims liability and liability under subsection 393(3) of the WIRC Act must be valued as at the transfer date and data files used for the valuation should be extracted as at the closest available date. If an employer is uncertain as to the timings concerning the actuary valuation, it should contact WorkSafe for clarification. 6 If the employer s eligible subsidiary is a former self-insurer, WorkSafe will assess the eligible subsidiary s most recent actuarial valuation submitted under its approval as a self-insurer. Depending on the timing of the actuarial valuation, however, WorkSafe may request a reevaluation of the tail claims liability of the eligible subsidiary. Page 7 of 40
ii) Delivery of guarantee On the transfer date, the employer must deliver to WorkSafe a guarantee by an ADI in a form approved by WorkSafe for an amount in accordance with subsections 393(2)(c) and 400(1)(c) of the WIRC Act. For further information, refer to paragraph 3.2.1a) of this document. iii) Annual actuarial valuation of liability Within 3 months of the end of each financial year of the employer, the employer must obtain an actuarial valuation of its claims liability (i.e., the liability incurred during the period of self-insurance and tail claims liability 7 ) by an actuary approved by WorkSafe and provide a copy of the valuation to WorkSafe. The actuarial valuation must be in accordance with the guidelines approved by WorkSafe (refer to External Guideline #5 - Actuarial assessment of self-insurance liabilities). If WorkSafe disputes the methodology or conclusions of the actuarial valuation, it will notify the employer as soon as practicable after receipt of the valuation and may require the claims liability to be assessed by an actuary appointed by WorkSafe. For this purpose, the employer must permit any actuary appointed by WorkSafe to inspect the books of the employer to enable the assessment to be made. iv) Provision in accounts Based on the actuarial valuation obtained by the employer annually, the employer must make provision in its accounts for current, non-current and contingent tail claims liability (as defined in footnote 6) and the assessed liability 8 under subsection 393(3) of the WIRC Act. v) Variation in amount of the guarantee Within 28 days of receipt of the actuarial valuation of the tail claims liability (as defined in footnote 6) and liability 9 under subsection 393(3) of the WIRC Act, prepared by the actuary appointed by the employer or the actuary appointed by WorkSafe, as applicable, WorkSafe or the employer may require that the existing guarantee be replaced by a guarantee for an amount not less than an amount not less than one and one-half times: if WorkSafe has obtained its own actuarial assessment, the amount of that assessment; or 7 Tail claims liability in this context means the outstanding liability in respect of: a claim for which the employer assumed the liability for, and the responsibility for management of, under subsections 395(2), 397(3) and/or 398(3) of the WIRC Act. 8 Assessed liability is defined in the glossary (see Appendix A). 9 Liability refers to the assessed liability as defined in the glossary (see Appendix A). Page 8 of 40
otherwise, the amount of the actuarial assessment obtained by the employer. vi) Recourse of guarantee WorkSafe may recover under any guarantee provided to it by the employer for the amount of any liability, fee, cost, damage or expense suffered or incurred by WorkSafe as a result (directly or indirectly) of any failure by the employer to satisfy a relevant claim or any breach or failure by the employer to comply with its obligations under Part 8 of the WIRC Act 10, or the employer has ceased to be an approved self-insurer. vii) Release of guarantee WorkSafe will not release the guarantee held by the employer under the WIRC Act until such time as: the employer ceases to be a self-insurer and WorkSafe assumes liability for the employer s tail claims 11 under subsection 403(3)(a) of the WIRC Act; and following the final assessment date 12 in respect of the final revised assessment as at the end of the sixth year of the liability period in accordance with section 406 of the WIRC Act. For further information on the guarantee requirements of a ceased self-insurer, refer to External Guideline #18 Requirements for ceased self-insurers. 3.2.2 Employer s liability to pay compensation When an employer becomes a self-insurer, the employer is liable to pay compensation or other payments, subject to sections 398 and 403 of the WIRC Act, if: i) a worker, the dependants of a worker or the members of a worker s family are entitled to compensation or any other payments, whether under the WIRC Act or the ACA or at common law, in respect of an injury or death incurred or suffered by a worker; and ii) at the time of the injury or death, the worker s employer was a self-insurer or an eligible subsidiary of a self-insurer 13 [section 391]. 10 In certain circumstances, compliance under the Accident Compensation Act 1985 (ACA) may apply. 11 Tail claims in this context means: a) a claim, regardless of when made, in respect of an injury or death (i) incurred or suffered by a worker employed by the employer (or its eligible subsidiary/ies) while the employer was a selfinsurer (ii) which entitles that worker, the dependants of that worker s family to compensation or any other payments, whether under the WIRC Act (or ACA, where applicable) or at common law; and b) a claim for which the employer assumed the liability for, and the responsibility for management of, under subsections 395(2) and/or subsections 397(3), 398(3) of the WIRC Act. 12 Final assessment date is defined in the glossary (see Appendix A). Page 9 of 40
In respect of the tails claims of the employer, the employer is not liable to pay compensation or other payments until it assumes the tail claims liability. WorkSafe Agent with which the employer holds a statutory contract of insurance will continue to manage the tail claims of the employer until close of business the day prior to the transfer date. The employer must continue to lodge any claims with WorkSafe Agent until the transfer date. The employer will be liable to pay compensation and other payments, regardless of when the claim is made and irrespective of the date of injury, on and from the transfer date. The following requirements also apply to an employer on and from the transfer date: a) Compensation The employer must pay from its own funds all compensation and all fees, costs, damages and expenses in respect of the tail claims without recourse to WorkSafe for any reimbursement. b) Indemnity The employer indemnifies WorkSafe against all liability, fees, costs, damages and expenses suffered or incurred by WorkSafe resulting directly or indirectly from a failure by the employer to satisfy any tail claim. c) No limit on liability There is no limit on the liability of the employer in respect of all relevant claims which the employer is liable to pay as a self-insurer under Part 8 of the WIRC Act 14. In particular, the liability of the employer is not limited to the final settlement amount payable by WorkSafe to the employer. For further information on the final settlement, refer to paragraph 3.3.1 of this document. d) Divestment Where an employer divests part of all of its ownership of an eligible subsidiary, the tail claims 15 liability will remain the employer s liability. 13 Eligible subsidiary is defined in the glossary (see Appendix A). 14 In certain circumstances, the ACA may apply. 15 Tail claims in this context means: a) a claim, regardless of when made, in respect of an injury or death (i) incurred or suffered by a worker employed by the eligible subsidiary (ii) which entitles that worker, the dependants of that worker s family to compensation or any other payments, whether under the WIRC Act (or ACA, where applicable) or at common law b) a claim for which the employer assumed the liability for, and the responsibility for management of, under subsections 395(2), 397(3), or 398(3) of the WIRC Act; and c) a claim for which the employer is liable to pay compensation and other payments in accordance with section 391 of the WIRC Act (or ACA, where applicable) up until the date the eligible subsidiary is divested by the employer. Page 10 of 40
The employer must retain the liability and management of the tail claims (as defined in footnote 14) of the divested subsidiary until such time as the employer ceases to be a self-insurer and the liability is assumed by WorkSafe under subsection 403(3)(a) of the WIRC Act. 3.2.3 Contingent liability insurance Under subsection 393(1)(b) of the WIRC Act, an employer must have in force at all times a contract of insurance in respect of its contingent liabilities effected with an insurer approved by the Australian Prudential Regulation Authority pursuant to the Insurance Act 1973. The insurer must not be related to the employer by reason of section 50 of the Corporations Act 2001, or be with an insurer which is wholly owned by any State or Territory of the Commonwealth. The contract of insurance must be for an unlimited amount in excess of the employer s liability for any one event or series of events arising out of any occurrence during the policy period for an amount not greater $5 000 000. The employer must submit to WorkSafe by the transfer date a certified copy of the contract of insurance, including the terms set out in the policy of insurance. A certificate of currency of the contract of insurance must be submitted by the employer to WorkSafe annually. Within 21 days after a contract of insurance is altered or effected with a different insurer, the employer must submit to WorkSafe a certified copy of the revised contract of insurance. 3.2.4 Resources An employer is required to have appropriate and sufficient resources in place for the administration and management of its claims and to satisfy its legislative obligations as an employer and as a self-insurer under the WIRC Act 16. Sufficient resources include, but are not limited to, the employer having a) experienced, qualified and competent staff to carry out all functions necessary for administering and managing claims for compensation b) adequate information management systems and appropriate policies and procedures for managing claims and associated activities which also satisfies the reporting requirements to WorkSafe and is compliant with the WIRC Act; and c) adequate security in place to ensure the confidentiality of all information (physical and electronic) obtained under the WIRC Act. 16 In certain circumstances, the ACA may apply. Page 11 of 40
For information on human resources, refer to External Guideline #14 Human resources for managing claims. 3.2.5 Management of tail claims a) General responsibility On and from the transfer date, the employer will manage, conduct and control all tail claims in accordance with the WIRC Act 17, the Workplace Injury Rehabilitation and Compensation Regulations 2014 (Regulations) ) or a Ministerial Order or any other subordinate instrument made under the WIRC Act or the Regulations. The employer will apply the same standards and care in its claims management practices irrespective of whether the claims are tail claims or claims incurred under the employer s approval as a self-insurer. The employer is responsible to ensure that appropriate arrangements are put in place to facilitate the transfer of claims which results in no interruption to the service delivery to injured workers and other relevant stakeholders, and the management of the tail claims and that it complies with the WIRC Act or the ACA, where applicable). b) Specific responsibility The employer is responsible on and from the transfer date for exercising all of the relevant powers and functions under the WIRC Act 18 in respect to the management of its tail claims. Subject to the legislative requirements under the WIRC Act 19 the employer is responsible for: i) managing, conducting and controlling the tail claims under the WIRC Act 20 including: receiving, assessing entitlements in respect of and accepting or rejecting relevant claims taking all steps necessary and appropriate in accordance with the WIRC Act in respect to the alteration, reduction or termination of benefits referring disputes for conciliation under Division 2 of Part 6 of the WIRC Act and participating in conciliation under that Division in respect of all tail claims which have been referred for conciliation 17 In certain circumstances, the ACA may apply. 18 In certain circumstances, the powers and functions under the ACA may apply. 19 In certain circumstances, the legislative requirements under the ACA may apply. 20 In certain circumstances, the ACA may apply. All referencing to the WIRC Act in this paragraph also applies to the equivalent provisions under the ACA, where applicable. Page 12 of 40
commencing, defending or negotiating proceedings before the Supreme Court, the County Court, the Magistrates Court or the Victorian Civil and Administrative Tribunal payment of tail claims for compensation within the time limits imposed by the WIRC Act where such tail claims are accepted or deemed to be accepted tail claims payment of costs and compensation due and in progress prior to and from the date of transfer date ensuring the benefits for which there is a continuing entitlement are paid promptly and without interruption and that a worker who is already taking part in an occupational rehabilitation or training program is enabled and encouraged to complete that program in respect of tail claims for damages 21, taking all reasonable and necessary steps to enable the settlement of tail claims for damages or to defend and conduct proceedings in respect of such tail claims ii) in respect of all tail claims: doing all things reasonably necessary to facilitate the speedy return to the workplace of an injured worker including but not limited to the worker s allocation to alternative duties employing or instructing investigators, legal advisers or other service providers as appropriate notifying WorkSafe as soon as it becomes aware of any strategically significant matter (as defined in guidelines issued by WorkSafe from time to time) to which it is a party, in a form approved by WorkSafe; and providing supporting information in relation to any strategically significant matter in accordance with guidelines made by WorkSafe. For further information, refer to External Guideline #9 Notification of strategically important matters. c) Recoveries In respect of all tail claims for which WorkSafe has paid compensation or other payments, the employer shall not obtain recovery of any contributions under sections 367, 368, 369 and 618 of the WIRC Act 22. 21 Claims for damages is defined in the glossary (see Appendix A). 22 Or sections 137, 137A or 138 of the ACA, where applicable. Page 13 of 40
3.2.6 Claims management policies An employer is required to make available its claims management policies, provide these policies to WorkSafe and make the policies readily available to its workers by the transfer date. The employer must maintain current claims management policies in accordance with any amendments to the WIRC Act 23 or the Regulations or a Ministerial Order or any other subordinate instrument made under the WIRC Act. An employer may elect to adopt WorkSafe s Claims Manual in place of developing and maintaining their own claims management policies. If an employer adopts WorkSafe s Claims Manual, the employer must notify WorkSafe and make WorkSafe s Claims Manual readily available to its workers. If the employer does not elect to adopt WorkSafe s Claims Manual then any policy documented by the employer which differs from WorkSafe s Claims Manual is to be provided to WorkSafe prior to implementation by the employer. 3.2.7 Claims & workplace data a) Confidentiality deed A confidentiality deed is entered into between WorkSafe and the employer. The confidentiality deed enables WorkSafe to release claims information or documentation and other confidential information or documentation to the employer prior to the transfer date. The confidentiality deed is signed by the duly authorised representative of the employer and WorkSafe. b) Workplace data WorkSafe will provide the employer with a list and details of all workplaces registered in WorkSafe s information management system (ACCtion) for the employer, (both current and historical). To facilitate the registration of workplace(s) in WorkSafe s Self-insurance Management Online (SIMON) system, the employer is required to: review and confirm or update existing details, including the address and WorkCover Industry Classification (WIC) of each workplace of the employer; and include any other relevant data or information as may be determined by WorkSafe at the time. Once the updated details have been received and assessed by WorkSafe, WorkSafe will register workplaces in SIMON and seek final confirmation from the 23 In certain circumstances, the ACA may apply. Page 14 of 40
employer. It should be noted that where WIC allocation issues arise, they must be resolved prior to the transfer date. c) Tail claims history Prior to the transfer, a service provider contracted to WorkSafe will extract from WorkSafe s electronic records the claims history of the employer as at the extract date and supply this extract and an accompanying data definitions document to the employer for testing. The employer must process the test extract to ensure that it can read the data and be able to accurately and completely load to its claims management system all data necessary to its tail claims and meet WorkSafe s reporting requirements from the transfer date. To confirm the integrity of the data being loaded into the employer s management system, WorkSafe may request that the employer furnish special purpose reports or other relevant information or documentation. Where issues may arise in relation to the loading and integrity of the data, they must be resolved prior to the transfer date. The claims history of the employer will be extracted by the service provider the night prior to the transfer date. The employer will be ceased on ACCtion on the transfer date. The service provider will provide the extract to the employer on the transfer date. As soon as is practicable after the transfer date, the employer is responsible upon receipt of the claims data file to: load onto its claims management information system all data required for the purposes of reporting to WorkSafe and administering claims; and retain all historical data in an accessible form which satisfies audit trail requirements and is accessible for claims administration or reporting purposes. d) Claims submission On and from the transfer date, the employer must report all claims (i.e., selfinsurance claims 24 and tail claims) in accordance with the requirements of WorkSafe. Tail claims of the employer must be included in claims submissions to WorkSafe where the status of the claim has changed since the date of transfer or the employer has made any payment. Only payments made by the employer are to be reported. 24 Self-insurance claims means claims incurred under the employer s approval as a self-insurer. Page 15 of 40
Tail or self-insurance claims of the employer cannot be accepted in a claims submission until the employer and its workplaces are registered in SIMON. Provided that the employer has met its notification requirements and has taken all reasonable steps to progress the transfer of claims, WorkSafe will take into account the impact of the assumption of tail claims when assessing compliance with the timeframes for claims submissions. 3.2.8 Termination of insurance in relation to tail claims a) Termination of statutory contract of insurance The employer must hold a statutory contract of insurance up until the date the employer commences as a self-insurer. The employer is required to provide a final declaration of its rateable remuneration to enable the calculation of any outstanding premium. The payment of all outstanding premium and penalties, where applicable, must be made no later than by the transfer date. WorkSafe may also conduct an audit to verify premium compliance. b) No right of indemnity On and from the transfer date, an employer has no right to be indemnified by WorkSafe i) under a statutory contract of insurance pursuant to the WIRC Act, or ii) under a WorkCover insurance policy, if before 1 July 2014, the employer was a holder of a WorkCover insurance policy within the meaning of section 7(1) of the Accident Compensation (WorkCover Insurance) Act 1993 (ACWI), in relation to the tail claims of the employer. 3.2.9 If you are injured poster On and from the transfer date, the employer must ensure that all of its workplaces display the If you are injured poster identifying the employer as the point of contact and the poster is in a form approved by WorkSafe. Page 16 of 40
3.2.10 Requirements if the employer s eligible subsidiary is a former self-insurer In limited circumstances, an employer s eligible subsidiary may be a former selfinsurer 25 (eligible subsidiary). In addition to the requirements covered in paragraphs 3.2.1 to 3.2.9 of this document, the activities undertaken to enable an employer to assume the tail claims of a former self-insurer are covered in Appendix C. The eligible subsidiary remains liable for, and responsible for the management of its tail claims as defined under subsection 395(4) of the WIRC Act until the transfer date. The eligible subsidiary must continue to meet all obligations under the WIRC Act until its approval as a self-insurer has been revoked by WorkSafe which are covered in Appendix D. Details in relation to the revocation of the eligible subsidiary s approval as a selfinsurer are covered in Appendix D. For the requirements that must be met by the eligible subsidiary upon ceasing as a selfinsurer, refer to External Guideline #18 Requirements for ceased self-insurers. 25 Former self-insurer is defined in the glossary (see Appendix A). Page 17 of 40
3.3 WorkSafe requirements The activities undertaken by WorkSafe (or Worksafe Agent 26 ) to facilitate the transfer of the liability and management of the tail claims to the employer are covered in the following paragraphs 3.3.1 to 3.3.7. The activities undertaken may occur prior to or from the transfer date, as the case may be. 3.3.1 Financial settlement WorkSafe must make payment of a settlement amount representing the tail claims liability 27 of the employer, calculated and paid in accordance with the Ministerial Order made under section 401 of the WIRC Act. The settlement is payable for tails claims of the employer and its eligible subsidiaries that are registered employers 28. It does not include the tail claims liability of a body corporate that was a self-insurer before it became an eligible subsidiary of the employer. a) Definitions In this section, the following definitions apply as defined in the Ministerial Order made under section 401 of the WIRC Act. Adjusted estimated discounted liability for an injury year Adjusted funding ratio Certification date The estimated discounted liability plus IBNR claim loading for that injury year plus GUF loading for that injury year plus future claims handling expenses for that injury year. The funding ratio divided by the loss ratio for each injury year in which claims were incurred by WorkSafe multiplied by the factor required to reconcile the net assets produced by the adjusted funding ratio with the net assets of WorkSafe. The date on which the employer: (i) certifies all rateable remuneration paid or payable by the employer under the WIRC Act; or (ii) makes payment of all outstanding premiums for statutory contract of insurance, all outstanding penalties under the WIRC Act and all other outstanding amounts that are payable under the WIRC Act; whichever is the later. 26 Worksafe Agent is the agent/s with which the employer or its eligible subsidiary/ies hold a statutory contract of insurance. This means that the activities covered in this section may be undertaken by more than one WorkSafe Agent if the employer s eligible subsidiary/ies hold a statutory contract of insurance with a different WorkSafe Agent. 27 Tail claims liability in this instance does not include the tail claims liability of a body corporate that was a self-insurer before it became an eligible subsidiary of the employer. 28 Registered employer is defined in the glossary (see Appendix A). Page 18 of 40
Estimated discounted liability Final Settlement Amount Funding ratio Future claims handling expenses GUF GUF Loading IBNR IBNR claim loading Injury year Loss ratio The amount assessed using WorkSafe s statistical case estimate model (as adopted by WorkSafe at the time of any assessment) to determine the estimated outstanding liability of WorkSafe in respect of all reported tail claims, discounted for future investment earnings using discount rates from the actuarial valuation of the scheme as adopted by WorkSafe at the time of any assessment. The amount calculated as at the assumption date, being (i) or (ii) below, whichever is less: (i) the sum of the following figures for all injury years: the adjusted estimated discounted liability for each injury year multiplied by the adjusted funding ratio for that injury year; (ii) the sum of the adjusted estimated discounted liability for all injury years. The ratio of WorkSafe s total net assets to its total net liabilities based on the actuarial valuation of the scheme as adopted by WorkSafe at the time of any assessment. The expenses estimated to be incurred in claims administration of the tail claims, calculated as a percentage (determined by WorkSafe) of the sum of the estimated discounted liability, the IBNR claim loading and the GUF loading. Gross up factor, and may have a negative or positive value. The amount which aligns the statistical case estimate model with WorkSafe s actuarially assessed scheme liabilities and adjusts for recoveries, calculated as a percentage (determined by WorkSafe) of the sum of the estimated discounted liability and the IBNR claim loading. Incurred but not reported. The actuarial value of IBNR claims, calculated as a percentage (determined by WorkSafe) of the estimated discounted liability and payments to date. 1 July to 30 June. WorkSafe s incurred claims cost for an injury year, divided by WorkSafe s earned premium for that year (where incurred claims cost is defined as the value, discounted to the year of premium payment, of paid claims to date plus actuarially assessed discounted liabilities). Page 19 of 40
Provisional settlement The amount calculated, as at 28 days prior to the transfer date (or as at such other date prior to the transfer date that WorkSafe determines), being (i) or (ii) below, whichever is less: (i) 80% of the sum of the following figures for all injury years: the adjusted estimated discounted liability for each injury year multiplied by the adjusted funding ratio for that injury year; (ii) 80% of the sum of the adjusted estimated discounted liability for all injury years. b) Payment of provisional settlement The provisional settlement amount is paid to the employer by WorkSafe on the transfer date or as soon as is practicable thereafter. c) Payment of final settlement Dependent upon whether the final settlement amount exceeds the provisional settlement amount, the final amount payable is paid either by WorkSafe or the employer. i) Payment by WorkSafe If the final settlement amount exceeds the provisional settlement amount, the difference between these amounts is payable by WorkSafe to the employer 28 days after: certification of all rateable remuneration of the employer paid or payable by the employer under the WIRC Act; or payment by the employer of all outstanding statutory contract of insurance 29 and penalties under the WIRC Act (or under the ACA) for the registered employer; whichever is the later date. ii) Payment by the employer If the provisional settlement amount exceeds the final settlement amount, the difference between these amounts is payable by the employer to WorkSafe within 28 days after receiving notice in writing from WorkSafe or such further period as may be agreed between WorkSafe and the employer. d) GST payable GST is not payable on the provisional and final settlement amounts. 29 Including any outstanding premium related to a WorkCover insurance policy that the registered employer was a holder of before 1 July 2014 and within the meaning of section 7(1) of the ACWI or any outstanding levies under the ACA. Page 20 of 40
3.3.3 Direct payees WorkSafe Agent will make specific arrangements with the employer with respect to injured workers who are direct payees of the employer prior to the transfer date (where applicable). 3.3.4 Compensation payments WorkSafe Agent will ensure that all compensation payments (i.e., weekly, medical and like, lump-sum, common law, other) and legal costs have been processed prior to the transfer date. 3.3.5 Claim files review and claims listings WorkSafe Agent will undertake the following activities: a) review all active claim files and ensure that the files are up to date, including case notes, prior to the transfer date b) to facilitate the transfer of the tail claim files and the provision of accurate information to enable the employer to manage the claims without interruption of service to injured workers, on the transfer date or as soon as practicable thereafter, claims lists will be provided to the employer. The claims listings will include: - all claim files to be sent to the employer - all new claims approaching 28 days for liability determination as at the transfer date - all urgent matters (e.g., litigation, disputes referred for conciliation, court/tribunal hearings, formal/informal conferences, etc) with accompanying details and key event dates; and - all strategically significant matters. For information on the type of details captured in the tail claims listings, refer to Appendix B c) reconcile the current and historical claims data with the physical claim files to ensure that all documentation have been accounted for. If physical files cannot be located, WorkSafe Agent will recreate the files. WorkSafe Agent will provide a list of the recreated files and details of any discrepancies and corrective action taken to address the discrepancies by the transfer date d) on transfer date or as soon as practicable thereafter, provide to the employer details of each outstanding litigated matter, including all key event dates (examples: conference; mediation; hearing; directions hearing date; 120 day serious injury decision; statutory offer; etc) Page 21 of 40
e) on transfer date or as soon as practicable thereafter, provide to the employer details for each dispute referred for conciliation that is unresolved or for which a final outcome is not reached as at the transfer date f) advise WorkSafe s panel solicitor(s) acting on behalf of WorkSafe Agent the following: - the panel solicitor may be contacted by the employer s solicitor to confirm the transitioning of the files having regard to litigation risk and immediacy of key event dates - where requested by the employer or solicitor on its behalf, the files 30 of WorkSafe s panel solicitor(s) are to be sent to the employer or directly to the employer s solicitor; and - in relation to unpaid work by WorkSafe s panel solicitor(s) on litigated matters as at the transfer date, the panel solicitor(s) are to render its legal cost invoices payable by the employer in accordance with the Ministerial Order made under subsection 401(1) of the WIRC Act. 3.3.6 Delivery of documents WorkSafe Agent will deliver to the employer within 10 working days of transfer date or as soon as practicable after that date all documents, files, disks, tapes, CDs and other records in their possession or under their control in respect of the tail claims. Within the same timeframe, WorkSafe will also deliver to the employer all documents stored in WorkSafe s secondary storage kept on behalf of WorkSafe Agent. In respect of claims for compensation approaching 28 days and where liability has not yet been determined as at the transfer date, WorkSafe Agent will endeavour to forward pending claims to the employer within five working days after the transfer date. 3.3.7 Notification (injured workers and service providers) No later than 10 working days prior to the transfer date, WorkSafe Agent will notify injured workers of the registered employer and service providers of: a) the change of insurance status b) the contact details of the employer; and c) administrative arrangements in respect of the tail claims. 30 A copy of the file may be provided by the panel solicitor. Page 22 of 40
4 Election not to assume tail claims The activities undertaken where an employer elects not to assume the liability for, and the responsibility for management of, its tail claims are detailed in the following paragraphs 4.1 to 4.4. 4.1 Retention of claims by WorkSafe WorkSafe retains the liability and management of the cohort of claims in respect of: a) an injury or death incurred or suffered by a worker employed by the employer or its eligible subsidiaries (if any) before the date the approval of the employer as a self-insurer takes effect under section 382(1) of the WIRC Act; and b) which entitles that worker, the dependants of that worker or the members of that worker s family to compensation or any other payments, whether under the WIRC Act 31 or at common law. 4.2 Employer requirements The requirements that must be met by the employer are as follows: a) any claims for compensation with an injury date prior to the date the employer commences as a self-insurer are to be lodged with WorkSafe Agent within 10 days after the claim is received by the employer. If a claim relates to an injury that straddles the body corporate s status as scheme-insured and self-insured, (e.g., the injury arose through gradual process), it is the date of injury that will be relevant in determining whether the employer is liable for the claim. If the date of injury is determined to be during the period the employer is self-insured, the employer is liable to pay compensation or other payments. The date of injury for gradual process claims and apportioning liability between scheme-insurance and self-insurance is determined in accordance with the general approach taken under the WIRC Act 32 b) an employer is required to document its claims management policies, provide these policies to WorkSafe and make the policies readily available to its workers by the date the employer commences as a self-insurer. Where an injured worker has an active tail claim, the worker must also be notified of the claims management arrangements with WorkSafe Agent. For further information on claims management policies, refer to paragraph 3.2.6 of this document 31 In certain circumstances, the ACA may apply. 32 In certain circumstances, the ACA may apply. Page 23 of 40
c) an employer is required to have appropriate and sufficient resources in place for the administration and management of its claims and to satisfy its legislative obligations as an employer and as a self-insurer under the WIRC Act. For further information on resources, refer to paragraph 3.2.4 of this document d) as soon as is practicable after the employer is approved as a self-insurer, WorkSafe will provide the employer with a list and details of all open workplaces registered in ACCtion for the body corporate. To facilitate the registration of workplace(s) in WorkSafe s Self-insurance Management Online (SIMON) system, the employer is required to: review and confirm or update existing details, including the address and WorkCover Industry Classification (WIC) of each workplace; and include any other relevant data or information as may be determined by WorkSafe at the time. Once the updated details have been received and assessed by WorkSafe, WorkSafe will register the workplaces in SIMON and seek final confirmation from the employer. It should be noted that where WIC allocation issues arise, they must be resolved as soon as practicable and prior to the date the employer commences as a self-insurer e) following the employer s commencement as a self-insurer, the employer must report claims associated with the employer in accordance with the requirements of WorkSafe. Only claims incurred since the self-insurance commencement date are to be reported by the employer. Claims belonging to the employer cannot be accepted in a claims submission until the employer and its workplaces are registered in SIMON f) an employer must have in force by the date the employer commences as a selfinsurer a contract of insurance in respect of its contingent liabilities in accordance with subsection 393(1)(b) of the WIRC Act. For further information on contingent liability insurance, refer to paragraph 3.2.3 of this document g) the employer must hold a statutory contract of insurance up until the date the employer commences as a self-insurer. For further information on the termination of a statutory contract of insurance, refer to paragraph 3.2.8 of this document; and Page 24 of 40
h) on and from the date the employer commences as a self-insurer, the employer must ensure that all workplaces of the employer display the If you are injured poster identifying the employer as the point of contact and the poster is in a form approved by WorkSafe. 4.3 Requirements if the employer s eligible subsidiary is a former self-insurer In limited circumstances, an employer s eligible subsidiary may be a former selfinsurer 33 (eligible subsidiary). In addition to the requirements covered in paragraph 4.2 of this document, the tail claims of a former self-insurer will be assumed by WorkSafe from the date that the eligible subsidiary ceases to be a self-insurer (exit date). The exit date will coincide with the date when an employer s approval as a self-insurer takes effect. The eligible subsidiary remains liable for, and responsible for the management of its tail claims as defined under subsection 395(4) of the WIRC Act until the exit date. The eligible subsidiary must continue to meet all obligations under the WIRC Act until its approval as a self-insurer has been revoked by WorkSafe. For details in relation to the revocation of the eligible subsidiary s approval as a selfinsurer is covered in Appendix D. For the requirements that must be met by the eligible subsidiary upon ceasing as a selfinsurer, refer to External Guideline #18 Requirements for ceased self-insurers. 4.4 WorkSafe requirements The activities undertaken by WorkSafe (or WorkSafe Agent) when an employer elects not to assume the liability and management of its tail claims are as follows: a) in consultation with the employer, WorkSafe will appoint a Worksafe Agent to manage the tail claims of the employer. Usually WorkSafe Agent with which the employer held a statutory contract of insurance will manage the tail claims b) WorkSafe Agent will contact the employer to confirm its administrative and management arrangements with respect to the tail claims of the employer; and c) no later than 10 working days prior to the employer commencing as a self-insurer, WorkSafe Agent will notify the injured workers of the employer and service providers regarding the administrative and claims management arrangements in respect of the employer s tail claims. 33 Former self-insurer is defined in the glossary (see Appendix A). Page 25 of 40
5 Privacy and confidentiality 5.1 Health information and personal information If WorkSafe provides the employer with personal information or health information, or the employer obtains health or other personal information in connection with or as a result of assuming the tail claims of the eligible subsidiary, the employer agrees that: a) in relation to that personal information or health information, it will be bound by the Privacy Legislation, and in particular the Privacy Principles in the Privacy Legislation as applicable b) in particular, it will not collect, store, use or disclose that personal information or health information except to the extent that such collection, use or disclosure is necessary for the performance of its obligations; and c) it will only collect, use, disclose, store, transfer or otherwise handle that personal information or health information it collects in accordance with such reasonable policies or directions relating to the collection, use, disclosure, storage, transfer or handling of personal information or health information as are notified by WorkSafe to the employer from time to time. 5.2 Restrictions on access to health information and personal information The employer must ensure that access to health information and personal information is restricted to those employees and contractors who need to know the information for the purposes of the employer fulfilling its obligations, and that those employees and contractors are aware of and agree to fulfil the employer's obligations. 5.3 Obligations in relation to confidential information In relation to confidential information, the employer must use its best endeavours to ensure that each officer, employee, agent or subcontractor of an employer: a) keeps all confidential information confidential; and b) does not make a record of, divulge or communicate to any third party any confidential information for any purpose other than a purpose authorised under section 412 of the WIRC Act or such purpose as may be authorised by law or under a similar or corresponding statutory provision. Page 26 of 40
5.4 Compliance with the WIRC Act Nothing contained in the Ministerial Order (Order) made under section 401 of the WIRC Act detracts or derogates from any requirement imposed upon any person by the WIRC Act, including sections 575 and 595 of the WIRC Act, in relation to maintaining the secrecy or confidentiality of any document or information acquired by the employer in the performance or discharge of its duties or obligations under the Order. Documents or information related to a) an injury or death incurred or suffered by a worker that at the time of injury or death, the worker s employer was an employer or the eligible subsidiary of an employer, or b) tail claims assumed by an employer c) in accordance with clause 4.3 of the Order i) must be retained by the employer for as long as they may foreseeably need to be accessed by the self-insurer, WorkSafe or another self-insurer for the purposes of the WIRC Act, and ii) must be retained in a form in which they are able to be so accessed. The Retention & Disposal Schedule for WorkSafe may assist an employer in developing policies and procedures to comply with clause 4.3 of the Order. This public document defines WorkSafe's retention schedule for Claim Case Management documents (Class 2.1.0) and is available from the Public Records Office website: http://prov.vic.gov.au/government/disposal-and-transfer/retention-and-disposalauthorities under the heading Specific RDAs. 6 Further information Requests for further information relating to an employer s commencement as a self-insurer should be directed to: Manager Self-insurance Operations Insurance Division 222 Exhibition Street Melbourne VIC 3000 Phone: 03 9641 1444 Freecall: 1800 136 089 Fax: 03 9641 1708 Email: self_insurance@workcover.vic.gov.au Page 27 of 40
7 Other reference material External Guideline #5 Actuarial assessment of self-insurance liabilities External Guideline #14 Human resources for managing claims External Guideline #18 Requirements for ceased self-insurers Page 28 of 40
Appendix A Glossary Terms referred to in this document are defined below. ACA Accident Compensation Act 1985. Assessed liability Assessed liability means: (a) the sum of the actuarial value of the current, non-current and contingent liabilities of the self-insurer in respect of injuries and deaths for which the employer is liable under section 391 to pay compensation or make other payments; and (b) the following amount (i) the sum of the actuarial value of the current, non-current and contingent liabilities of the employer for claims expected to arise in the 12 months after the assessment in respect of injuries and deaths for which the employer would be liable under section 391 to pay compensation or make other payments; less (ii) the total amount expected to be paid by the employer in relation to compensation payable under section 391 and compensation in respect of tail claims assumed by the employer under sections 395, 396, 397 or 398 in the 12 months after the assessment Note: In the event that the amount referred to in subparagraph (ii) exceeds the amount referred to in subparagraph (i), the amount referred to in paragraph (b) is $0. [Subsection 393(3) of the WIRC Act] Assessed tail claims liability Assessed tail claims liability means: the actuarial value of the current, non-current and contingent liabilities of the employer or its eligible subsidiary in respect of tail claims under the WIRC Act. [Subsection 400(2) of the WIRC Act] Body corporate An entity which has been incorporated. Incorporation may occur by royal charter or letters of patent, by statute, or by prescription. An entity that is not incorporated in Australia may still be a body corporate, if it is a corporation created under Commonwealth or State legislation under which it is incorporated. Page 29 of 40
Claims for damages Claims for damages at common law or otherwise which entitles that worker, the dependants of that worker or the members of that worker s family to compensation in respect of injury or death incurred or suffered by a worker (a) arising out of, or in the course of, or due to the nature of employment with the registered employer; and (b) occurring during the relevant period*. * Relevant period refers to a period commencing at 4.00pm on 31 August 1985 and ending on the transfer date. Confidential information Confidential information means: (a) all information obtained by a self-insurer in managing tail claims in accordance with the Ministerial Order made under section 401 of the WIRC Act (Order); and (b) any other information provided by WorkSafe to the self-insurer pursuant to the Order which is designated confidential or which otherwise would be understood by a reasonable person in the position of a self-insurer to be confidential in nature, excluding information which at the time of the disclosure is in the public domain or after disclosure becomes part of the public domain otherwise than by disclosure in breach of the Order. Eligible subsidiary Eligible subsidiary means: (a) in relation to a self-insurer that is the MAV, a participating corporation; and (b) in relation to any other self-insurer or body corporate, a wholly owned subsidiary. Note: Under section 409 of the WIRC Act, if a body corporate that is an eligible subsidiary of a self-insurer becomes a non-workcover employer, for the purpose of this Part, the body corporate is taken not to be an eligible subsidiary of the self-insurer for the period that it is a non-workcover employer. [Subsection 372 of the WIRC Act] Employer Employer means: an employer within the meaning of section 3 of the WIRC Act and includes a holding company which does not itself employ any workers but an eligible subsidiary of which does. [Section 372 of the WIRC Act] Page 30 of 40
Exit date Exit date means: the date that the eligible subsidiary ceases to be a self-insurer and WorkSafe assumes the liability for, and the responsibility for management of, the tail claims of the eligible subsidiary. Former self-insurer Final assessment date Former self-insurer means: an eligible subsidiary of an employer that was a self-insurer before it became an eligible subsidiary of the employer. Final assessment date means: [Subsection 395(4) of the WIRC Act] (a) if a payment is required arising from the revised assessment of the tail claims liability of the employer as at the end of the sixth year of the liability period, the date the payment is made; or (b) if no payment is required, the date which is 28 days after the notice of the revised assessment is received by the employer in relation to the revised assessment carried out in the sixth year of the liability period. [Subsection 407(9) of the WIRC Act] Guarantee Privacy legislation Privacy principles Registered employer An irrevocable, unconditional guarantee and indemnity issued by an authorised deposit-taking institution (e.g., bank as defined in the Banking Act 1959) and enforceable in Australia on presentation and otherwise in a form acceptable to the VW A in accordance with section 400 of the WIRC Act. Laws in respect of personal and health information, including but not limited to the Information Privacy Act 2000, the Health Records Act 2001 and the Privacy Act 1988. The Australian Privacy Principles set out in the Privacy Act 1988 (Cth) Information Privacy Principles set out in the Information Privacy Act 2000 (Vic) and the Health Privacy Principles set out in Schedule 1 of the Health Records Act 2001 (Vic). Registered employer means an employer who is registered with WorkSafe under Part 10 of the WIRC Act. Page 31 of 40
Self-insurer Self-insurer means: (a) a body corporate that (i) is approved as a self-insurer under Division 3 of Part of the WIRC Act; or (ii) immediately before 1 July 2014, was a self-insurer within the meaning of the ACA; (b) a body corporate that (i) has been a self-insurer within the meaning of paragraph (a) or a selfinsurer within the meaning of the ACA as in force immediately before 1 July 2014; and (ii) has elected, or entered into an arrangement with WorkSafe, to retain liability for its tail claims; and (iii) has not ceased to be liable for those claims. [Section 3 of the WIRC Act] Subsidiary Tail claims Subsidiary has the same meaning as in the Corporations Act, i.e., a body corporate whose issued share capital is at least 51% held by another body corporate. Except where otherwise defined in this document, tail claims, means a claim, whenever made (a) in respect of an injury or death incurred or suffered (i) by a worker employed by the employer, or an eligible subsidiary of the employer, the date on which the approval of the employer takes effect under section 382(1); or (ii) by a worker employed by a former self-insurer before it became an eligible subsidiary of the employer; or (iii) if the employer makes an election to assume the tail claims of a former self-insurer, by a worker employed by the former self-insurer before the transfer date or before the date on which a former self-insurer ceased to be a self-insurer, whichever first occurs; or (iv) if the employer does not make an election, by a worker before the Authority assumed the tail claims of a former self-insurer under section 403; (v) by a worker that were assumed by a former self-insurer before it became an eligible subsidiary of the employer, whether by agreement with the Authority or under this section or section 396, 397 or 398 of the WIRC Page 32 of 40
Act or section 150 or 150A of the Accident Compensation Act 1985; and (b) that entitles the worker, the dependants of the worker or the members of the worker s family to (i) compensation or other payments under the WIRC Act (other than section 576 or 578) or the Accident Compensation Act 1985 (other than section 242AB or 242AD); or (ii) damages at common law as permitted by and in accordance with Division 2 of Part 7 (other than sections 348 to 356 inclusive) or section 366 of the WIRC Act or section 134AB or 135C of the Accident Compensation Act 1985. [Subsection 395(5) of the WIRC Act] Transfer date Transfer date means: the date agreed between WorkSafe and the employer as the date on which the liability for, and responsibility for management of, its tail claims of the employer are to be assumed by the employer. The date coincides with the date the employer s approval as a self-insurer takes effect. WIRC Act Workplace Injury Rehabilitation and Compensation Act 2013. Page 33 of 40
Appendix B Tail claims listings To minimise interruptions to the management of the tail claims and service to injured workers of the employer, WorkSafe or WorkSafe Agent will provide the employer with the list of claims. The claims list will be current as at the date of transfer and will be provided to the employer on the transfer date or as soon as practicable thereafter. It will contain all recorded tail claims of the employer, including summary information for each claim being transferred to the employer. A pre-transfer list can also be requested by the employer in order to assist in determining the scope and nature of the claims of the employer in the transfer pool. Applicable details that may be included in the claim lists are: worker s name claim number date of injury date claim received by the employer related employer related workplace claim status (open or closed) claim category based on the type and period of activity on the claim (e.g., a claim is currently closed but was open during the year prior to the transfer date and weekly compensation payment was not paid in the three months prior to the transfer date) flag for re-created physical claim file where the original file cannot be located flag for claims approaching 28 days for liability determination flag for claims that have previously been or are the subject of litigated disputes and remain ongoing flag for disputes referred for conciliation under the WIRC Act or ACA that are unresolved or for which a final outcome is not reached; and flag for strategically significant matters on claims that are unresolved or for which a final outcome is not reached. The details of the file format and criteria definitions will be available from WorkSafe and may change from time to time. Page 34 of 40
Appendix C Election to assume tail claims Employer s eligible subsidiary is a former self-insurer The activities undertaken to enable an employer to assume the liability for and management of, the tail claims of an eligible subsidiary that is a former self-insurer are covered in the paragraphs below. a) Liability to pay compensation The eligible subsidiary is liable for, and responsible for the management of: its tail claims as defined under subsection 398(5) of the WIRC Act; and any claim payable under section 391 of the WIRC Act (or under the ACA, where applicable); until the transfer date 34. The employer is liable to pay compensation and other payments, regardless of when the claim is made and irrespective of the date of injury, on and from the transfer date. b) Requirements to be met by the eligible subsidiary The requirements that must be met by the eligible subsidiary are covered in the following paragraphs and apply either prior to or from the transfer date, as the case may be. i) Liability to pay compensation The eligible subsidiary remains liable for, and responsible for the management of its tail claims 35 until the transfer date. ii) Tail claim files The eligible subsidiary must forward to the employer all claim files and other relevant documents, diskettes, tapes, CDs and other records in the possession or under the control of the eligible subsidiary in respect of its tail claims (as defined in footnote 34), as soon as practicable on or after the transfer date. 34 Transfer date is defined in paragraph 3.1 of this document and in the glossary of this document (see Appendix A). 35 Tail claims in this context means: a) a claim, regardless of when made, in respect of an injury or death i) incurred or suffered by a worker employed by the eligible subsidiary (or its eligible subsidiary/ies) while the eligible subsidiary was a self-insurer ii) which entitles that worker, the dependants of that worker s family to compensation or any other payments, whether under the WIRC Act (or ACA, where applicable), or at common law; and b) a claim for which the eligible subsidiary assumed the liability for, and the responsibility for management of, under subsections 395(2) or 396(3) and/or 397(3), 398(3) of the WIRC Act and/or sections 150, 150A of the ACA and/or by agreement with WorkSafe while the eligible subsidiary was a self-insurer. Page 35 of 40
iii) Workplace return & claims report Within five days after the transfer date, the eligible subsidiary must undertake the following on WorkSafe s Self-insurer Management Online (SIMON) system: enter the final remuneration amount for each workplace for the period 1 July to the transfer date; and enter the Full Time Equivalents (FTE) as zero for each workplace. WorkSafe will review the employer s workplace data and upon approval, confirm the cessation of the eligible subsidiary s workplaces on SIMON. The eligible subsidiary must also submit a claims report within five working days after the transfer date. iv) Relevant remuneration declaration The eligible subsidiary is required to provide its final declaration of relevant remuneration for the period between 1 July to the transfer date within five working days after the transfer date. v) Contribution adjustment In the next September quarter following the transfer date, WorkSafe will determine a contribution adjustment amount for the period ending on 30 June of the financial year in which the eligible subsidiary ceased as a self-insurer. Dependent upon the amount determined by WorkSafe, the eligible subsidiary will either be required to pay WorkSafe a contribution adjustment amount or will receive a refund from WorkSafe. vi) Guarantee release WorkSafe will release the eligible subsidiary s guarantee upon revocation of the eligible subsidiary s approval as a self-insurer, and upon the self-insurer providing a guarantee to WorkSafe that covers the eligible subsidiary s tail claims liability in accordance with section 400 of the WIRC Act. vii) Financial/prudential arrangements In relation to the following financial/prudential arrangements, on and from the transfer date, the eligible subsidiary is no longer required to: make provision in its accounts for current, non-current and contingent liabilities in respect of injuries or deaths compensable under the WIRC Act have in force a contract of insurance in respect of its contingent liabilities; or submit an annual financial report, audit certificate and an annual actuarial valuation report. Page 36 of 40
Appendix D Revocation of approval Employer s eligible subsidiary is a former self-insurer In accordance with subsection 385(1)(b) of the WIRC Act, WorkSafe may revoke the approval of an employer as a self-insurer if the employer becomes an eligible subsidiary of another self-insurer. In the circumstance covered by this guideline, WorkSafe s intention would be to revoke the eligible subsidiary s approval as a self-insurer. Where the self-insurer elects to assume the liability for, and the responsibility for management of, the tail claims of an eligible subsidiary, WorkSafe s intention would be to revoke the eligible subsidiary s approval as a self-insurer to take effect immediately prior to the transfer date. Where the self-insurer elects not to assume the liability for, and the responsibility for management of, the tail claims of an eligible subsidiary, WorkSafe s intention would be to revoke the eligible subsidiary s approval as a self-insurer to take effect on the exit date which coincides with when the tail claims liability are to be assumed by WorkSafe. In accordance with section 385 of the WIRC Act, if WorkSafe revokes the eligible subsidiary s approval as a self-insurer, it must provide to the eligible subsidiary at least 28 day notice in writing of the intention to revoke and provide reasons for the decision to revoke. The eligible subsidiary may, within 28 days after receiving the notice, make a submission to WorkSafe in writing in support of the continuation of its approval as a self-insurer. WorkSafe will consider the submission of the eligible subsidiary where provided and then decide whether or not to revoke the approval of the self-insurer. If, after the expiry of the 28 day notice period and after considering any submission from the selfinsurer, WorkSafe decides to revoke the self-insurer s approval, WorkSafe must provide to the eligible subsidiary a written notice of revocation. The revocation of the eligible subsidiary approval will take effect immediately after the day on which the notice of the revocation is given to the selfinsurer. If the eligible subsidiary itself requests revocation of its self-insurance approval, the requirement for WorkSafe to provide 28 day notice of revocation does not apply. WorkSafe may give the eligible subsidiary a written notice of revocation at any time after receiving the request for revocation [subsection 385(4)]. Where a) the eligible subsidiary s approval as a self-insurer is revoked in accordance with section 385 of the WIRC Act b) the self-insurer elects not to assume the liability for, and the responsibility for management of, the tail claims of an eligible subsidiary Page 37 of 40
c) costs incurred by WorkSafe (including but not limited to the actuarial services to determine the outstanding liabilities at the time of revocation) are recoverable from the eligible subsidiary as a debt due to WorkSafe [section 386]; and d) any prior agreement to assume the tail claims that the eligible subsidiary had entered into with WorkSafe will cease in accordance with its particular provisions. Page 38 of 40
Page 39 of 40
Page 40 of 40