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Last updated: 30 November 1999
Public Service Act 1999 Advice No. 33: Workers compensation for APS employees aged 65 and over
Introduction
This advice is one of a series of advices to be issued by the Public Service and Merit Protection Commission (PSMPC) concerning the Public Service Act 1999 (the new PS Act) and the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act). It is proposed that the new legislation will come into operation on 5 December 1999 and the information contained in this advice will take effect on commencement of the legislation.
2 The purpose of this advice is to advise agencies about the effect of a proposed amendment to the Safety, Rehabilitation and Compensation Act 1988 which will address the fact that currently APS employees aged 65 and over are unable to receive the same level of workers' compensation benefits as employees aged less than 65 years.
3 This advice has been prepared on the basis of policy advice from DEWRSB.
Background
4 The Public Service Act 1999 does not make provision for maximum age retirement. This means that employees turning 65 are no longer required to retire from the APS because of their age.
5 The Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) establishes the Commonwealth public sector workers' compensation scheme. The SRC Act currently does not enable APS employees who have reached age 65 to receive the same level of workers' compensation benefits as employees aged less than 65 years. The Act provides that weekly incapacity benefits (ie weekly payments in lieu of salary) are not payable to a person who has reached age 65. Employees aged 65 and over are, however, eligible for all other benefits under the SRC Act (eg compensation for permanent impairment, provision of rehabilitation and medical costs).
Changes under the new legislation
6 To that end it is proposed to amend the SRC Act to address this situation. It is expected that regulations will be made under the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act) to amend the SRC Act to enable incapacity benefits to be paid to APS employees after they have reached age 65.
7 If the SRC Act is amended as proposed by the new regulation, an APS employee who suffers a compensable disease or injury at any age after 63 years will be entitled to receive incapacity benefits under the SRC Act for a maximum period of two years. The policy is to provide the same quantum of benefits for an employee working after they turn 65 as would apply to an employee aged under 65, but only to a maximum of two years incapacity payments.
8 An APS employee who suffers a compensable disease or injury prior to age 63 would still only receive incapacity benefits until they reach age 65.
9 It is expected that the new regulation will come into effect on 5 December 1999 at the same time as the new PS Act. The regulation is not expected to affect entitlements of employees employed otherwise than under the PS Act.
10 As it is intended that the new regulation will amend the SRC Act, claims under the new arrangements will be dealt with by Comcare under the usual arrangements relating to claims under the Comcare scheme.
11 Advice from the Australian Government Solicitor indicates that the above approach provides the clearest legal basis for an interim approach to providing entitlements to employees who have reached 65 years. Agencies should not adopt any other approach and in particular should not use Australian Workplace Agreements or certified agreements, or take out insurance cover for employees aged 65 or over.
12 Any queries on this issue should be directed to Comcare, contact officer: Richard Rushall, telephone 02 6275 0600, or email at Rushall.Richard@comcare.gov.au.
13 This advice is issued jointly by the PSMPC and Comcare.
Jenny Harrison
Team Leader
Values, Conduct and Diversity Team
29 November 1999
