New obligations for employers under the Return to Work Act 2014 (SA)

The South Australian Parliament has passed a Bill to amend the Return to Work Act 2014 (SA) (the Act). This includes significant changes to the obligation to provide ‘suitable employment’ to injured workers.

Requesting Suitable Employment

The Act will now require:

• workers to notify their employer of their request for work, outlining the types of work they believe they’re capable of performing;
• the employer will have one month to consider this request, including an ability to offer alternative work not specified by the worker. If alternative work is offered or the request is denied outright, the employer must provide their reasons for the decision;
• if no agreement is reached, the worker will have one month to file an application to the South Australian Employment Tribunal (the Tribunal).[1]

Backpay Orders

In the event of a section 18 application, the Tribunal will now be able to make backpay orders against the employer, if there is a finding that a worker should have been provided with suitable employment. The backpay orders are to compensate a worker for wages and salary they would have received if employment was provided. These orders are in addition to orders the Tribunal may make in relation to the provision of suitable employment.

Obligations on Labour Hire Host Employers

Host employers will be required to cooperate with labour hire providers in return-to-work matters. This includes three requirements:

1. communicating with labour hire providers about suitable employment; and
2. participating in discussions with the worker and labour hire provider about return-to-work planning; and
3. providing workplace access to parties involved in the return to work process.

This does not create an obligation for host employers to enter into an employment relationship with a worker.[2]

Obligations on Self-Insured Employers

Self-insured employers who are part of a corporate group will now have an obligation to provide suitable employment in related entities in the group.

We consider the above changes will increase the complexity of section 18 applications, and the financial risk to employers.

The amendments do provide some other benefits to employers, including:

Serious and Wilful Misconduct

The Act will now expressly state that an employer’s obligation to provide suitable employment will cease if the worker’s employment has been properly terminated on the basis of serious and wilful misconduct.

Costs

The costs provisions for section 18 applications will be modified so that registered employers are entitled to have their costs paid in the same way as workers – in most circumstances, employers will be entitled to an order for their reasonable legal costs, to be paid by the Compensating Authority.

These changes will come into effect on 1 December 2024.

EMA Legal can assist employers with advice and representation in relation to section 18 applications.

[1] Return to Work (Employment and Progressive Injuries) Amendment Act 2024 (SA)

[2] Ibid s 16(b)