Guidelines

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About these guidelines

These guidelines have been designed to help employers, workers and other stakeholders understand their legal obligations in relation to return to work programs for their workplace. Those obligations are outlined in the Workers Compensation Act 1987 (1987 Act), the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and the Workers Compensation Regulation 2016 (the 2016 Regulation).

Return to work programs support an organisational culture of recovery at work and help:

• workers stay active and return to health
• employers retain skills and knowledge
• create safe workplaces where workers are valued
• reduce the costs associated with extended time away from work.

Employers must comply with these guidelines, which are made and enforced by the NSW State Insurance Regulatory Authority (SIRA), under section 52 of the 1998 Act.

Employers should note that the guidelines contain obligations that must be adhered to as well as suggested best practice. Obligations are referenced as ‘must’ and best practice suggestions have been referenced as ‘should’ throughout the document.

Additional information about recovery at work can be found on the SIRA website www.sira.nsw.gov.au.

Scope

All NSW employers must have a return to work program in place within 12 months of becoming a category 1 or category 2 employer, and it must be consistent with the insurer’s injury management program.¹

These guidelines cover Category 1 employers and Category 2 employers, as defined in the 1998 Act and the 2016 Regulation. The categories are based on the following criteria:

These guidelines apply to employers in the NSW coal industry except where there are legislative exemptions.

These guidelines do not apply to domestic or similar workers engaged by employers (including bodies corporate for strata or strata (leasehold) schemes), unless these workers are for the employer’s trade or business.

These guidelines do not apply to employers that:

• hold owner-builder permits under the Home Building Act 1989 (NSW) (for workers employed for the work the permits relate to)
• are corporations that only employ workers who are directors of the corporation⁴
• only employ workers who are their family members⁴
• only employ workers who work outside NSW⁴
• have a written exemption from SIRA (to the extent specified in the exemption).⁴

Role and functions

The RTW coordinator must have the authority to represent and make decisions for the employer in relation to the functions specified below. The RTW coordinator does not make decisions on claims liability or funding for treatment – this is the insurer’s responsibility.

The RTW program must outline the RTW coordinator’s role⁸ in recovery at work planning, and managing workers with a work related injury or illness. These duties must include:

• compiling the initial notification information
• coordinating the worker’s recovery at work, including identifying suitable work opportunities
• preparing, monitoring and reviewing a recover at work plan (in consultation with key parties) that documents the worker’s capacity and the duties available
• liaising with external stakeholders, such as the nominated treating doctor, insurer, treatment providers, union and workplace rehabilitation provider
• implementing the RTW program
• supporting the redeployment of workers (internally or externally) into suitable work when they cannot return to their pre-injury duties
• keeping injury and recover at work statistics
• keeping confidential case notes and records in line with laws and guidelines
• promoting the health benefits of good work to the workforce
• contribute to the improvement of relevant policies and systems.

Employment arrangements

A RTW coordinator does not have to be a full-time worker who is dedicated solely to the role. But if the RTW coordinator has other roles within the organisation, employers must ensure the RTW coordinator can carry out the functions listed above and any actual or potential conflict of interest between roles is addressed.

Employers should appoint a RTW coordinator who has well-established relationships with workers and a good understanding of all aspects of the workplace.

If an employer chooses to outsource this role or engage a RTW coordinator under a work arrangement or contract, they must ensure:⁹

• the appointed person has the required training, skills and experience
• the arrangement will not disadvantage workers
• they consult the workforce before proceeding with the arrangement
• there is no perceived or actual conflict of interest for the person being engaged
• the RTW program details the arrangements, including the person’s name, qualifications and experience
• the suitability of these arrangements is reviewed every two years as part of the RTW program review.

The employer must pay the cost of engaging a RTW coordinator. It is not a claims cost.

2. Develop a return to work program

Category 1 employers must ensure their RTW programs cover the following aspects:

• leadership and commitment
• workplace arrangements
• rights and obligations
• after an incident
• support for the worker
• recovery at work
• dispute prevention and resolution
• administration.

They can then use the Return to work program checklist for Category 1 employers to ensure the RTW program complies with these guidelines.

These guidelines set out the minimum requirements for a RTW program. Employers should add any other relevant policies or procedures that reflect the business practices, culture and environment of their workplace, and refer to the NSW workers compensation laws to ensure compliance.

Employer associations or approved workplace rehabilitation providers can help to develop a program, but employers must pay any associated costs.

Leadership and commitment

The RTW program must state the employer's commitment to help workers recover at work. This statement should reflect the organisation structure nand operating environment.

The RTW program must show its connection to work health and safety (WHS) policies and procedures under the NSW Work Health and Safety Act 2011, Work Health and Safety Regulation 2017 and where applicable the Work Health and Safety (Mines and Petroleum Sites) Act 2013 and Work Health and Safety (Mines and Petroleum Sites) Regulation 2014.

Employers must detail how, following an injury, they will review their WHS policies and procedures to identify gaps and opportunities for improvement.

The RTW program must detail how the organisation will develop a positive culture that promotes recovery at work. This includes:

• fostering positive attitudes towards workers recovering at work
• promoting the health benefits of good work.

Workplace arrangements

The RTW program must list the RTW coordinator’s name and contact details or indicate where these details are located (for example, the intranet). It must explain the RTW coordinator’s role and identify what authority and resources they have to negotiate, develop and implement activities.

The RTW coordinator must have reasonable access to workers and their workplace. See role and functions for more on the RTW coordinator’s role.

Employers should nominate an approved workplace rehabilitation provider (provider) in the RTW program.¹⁰ In selecting the nominated provider(s) employers should consult with workers and any industrial union representing them. Visit our website for a list of approved providers.

While the doctor, employer or insurer usually recommend a provider for each situation, workers must have the opportunity to refuse or request a change in provider. The RTW program must outline this procedure, including how workers will be told of this opportunity.

The RTW program must also document how the organisation will:

• cooperate with the provider
• ensure the unique needs and arrangements of the workplace are understood by the provider
• ensure reasonable access to the workplace and injured workers.

Employers must consult with workers, and any industrial union representing them when developing their RTW program.¹¹ The RTW program must then outline how this will be done.

The RTW program must include staff communication and training about the program. This could include induction training, toolbox talks, intranet pages, staff development and other training programs.

It must also outline monitoring, review and display arrangements, including reviewing the RTW program every two years in consultation with workers and any union representing them.

Category 1 employers must display or notify the workplace of the RTW program by publishing it on a website or any other method authorised by the regulations – failing to do so is an offence.¹² The RTW program must explain how the employer will do this.

Rights and obligations

Employers must inform workers of their rights and obligations. The RTW program must detail how these will be communicated to workers throughout the recovery at work process.

Workers are obliged to:

• notify their employer as soon as possible after a work-related injury occurs
• participate and cooperate in establishing an injury management plan
• carry out the actions such a plan requires of them
• authorise their nominated treating doctor to provide relevant information to their insurer or employer using the certificate of capacity, claim form or other form of authority;
• make all reasonable efforts to recover at work.

Workers have the right to:

• nominate their own treating doctor
• employment that is both suitable and, so far as reasonably practicable, the same as or equivalent to their pre-injury employment
• be consulted and involved in identifying suitable work and developing their recover at work plan
• privacy and confidentiality
• access mechanisms for resolving complaints and disputes.

For more information, refer to Injured at work: A recovery at work guide for workers and the Claims Management Guide.¹³

The program must also outline the responsibilities and obligations of the worker’s support team, including the:

• organisation’s senior and middle management
• RTW coordinator (for more information refer role and functions to When a worker is injured: A workers compensation guide for employers)
• insurer (for more information refer to the Workers compensation guidelines)
• nominated treating doctor (for more information refer to the Workers compensation guide for medical practitioners)
• approved workplace rehabilitation provider (for more information refer to our website)
• any union representing workers.

After an incident

Employers must provide first aid equipment and trained personnel for the workplace. They must ensure all workers can access the equipment and there is sufficient access to facilities for administering first aid.

The RTW program must detail the organisation’s first aid arrangements, or refer to these procedures if documented elsewhere.¹⁴

Employers must keep a register of injuries detailing all work related injuries or illnesses, whether or not they result in a workers compensation claim. They must also keep a record of each notifiable incident.

Different WHS notification requirements apply to mining workplaces.

The register may be written or electronic and the RTW program must describe how the employer will inform workers about procedures for completing it.¹⁵

An injured worker must report the injury to their employer as soon as possible after sustaining it. Employers must then notify the insurer within 48 hours of receiving report of a work related injury.

The RTW program must include procedures for early reporting by workers and to the insurer, and describe how the employer will inform workers of these procedures.¹⁶

Employers must report any notifiable incidents to the WHS regulator. The RTW program must explain how the employer will inform the WHS regulator of any notifiable incidents, or refer to this procedure if documented elsewhere.^{17 & 18}

Support for the worker

Understanding a worker’s situation and offering them support will positively affect the worker’s response to their injury and enable successful recovery at work.

Appropriate communication is essential to facilitate recovery at work for a worker. The RTW program must document how the organisation will maintain positive and effective communication with workers and the RTW team, and who will be responsible for this.

The RTW program must detail how the employer will gain the worker’s informed consent to gather and exchange information about the work related injury and recovery at work.

To give informed consent, a worker needs to understand the implications of agreeing or refusing.

The RTW program must describe:

• how the employer will gain consent to release and exchange information about a worker’s recovery at work
• what kind of information will be exchanged
• who is authorised to exchange this information
• how the worker will be informed of the benefits of information exchange and their associated rights, obligations and potential implications for recovery at work when consent is not given.

Employers may use the sample consent form for obtaining/releasing personal information or on the SIRA website.

To ensure workers’ weekly payments are prompt and correct, the RTW program must include procedures for:

• advising the insurer of the worker’s pre-injury average weekly earnings (PIAWE)
• making weekly payments at the usual times wages are paid
• passing other payments on to the worker as soon as practicable after receiving them from the insurer
• advising the worker of dispute resolution mechanisms.¹⁹

Employers must not refuse or delay passing on entitlements to a worker. They may incur a penalty²⁰ if they do so.

After being notified of a significant injury or illness, the employer must participate and cooperate while the insurer writes an injury management plan for the affected worker. The RTW program must detail how the employer will work with the insurer to develop this plan, including an offer of suitable work.

Recovery at work

Employers must offer workers suitable work, where reasonably practicable, so they have the opportunity to recover at work. The employment may be either full time or part time and, where reasonably practicable, the same as or equivalent to the worker’s pre-injury employment.

This may be the same job with different hours or modified duties, a different job at the same or a different workplace, training opportunities or a combination of these. This is also referred to as suitable, alternate, modified or light duties.

Employers must provide suitable work, where reasonably practicable, even when a claim is in dispute.

The RTW program must document the policies and procedures for providing suitable work²², including:

• who is responsible for identifying suitable work, and how they will do so
• how the employer will consult with the worker
• in what circumstances the employer would engage a workplace rehabilitation provider
• the process for resolving disputes if parties disagree
• strategies to manage instances where no suitable work can be identified.

Tailored planning is essential to a successful work outcome for both employer and worker. This involves developing and maintaining a recover at work plan. The RTW program must detail the employer’s policies and procedures for:

• including the worker in the development of the plan
• what each plan should contain
• managing the worker’s appointments for treatment and rehabilitation
• who should have a copy of the plan
• monitoring and reviewing the plan
• notifying relevant parties of changes to the plan.

Some workers will not be able to return to their pre-injury workplace. The RTW program must outline the support and steps the employer will offer, including retraining and job placement.

The RTW program must also describe how the employer will inform workers of their rights regarding dismissal under workers compensation law. There are protections in place for workers against dismissal because of a work related injury or illness within six months (or the length of any accident pay in the worker’s award or agreement) after the worker first becomes unfit for employment.

If an employer dismisses a worker because of a work related injury at any stage in the claim, the worker may apply to the employer to be reinstated. If the employer replaces the worker within two years of dismissing them, the employer must inform the replacement worker that the dismissed worker may be entitled to be reinstated to the role.²³

Dispute prevention and resolution

To prevent and resolve disputes, employer RTW programs must detail:

• how they will prevent disputes
• what processes they will use to resolve disputes about injury management, suitable work or recover at work planning
• how they will advise workers of the workplace dispute resolution arrangements and formal dispute mechanisms available through the workers compensation system.

Administration

Employers should familiarise themselves with their legal obligations when collecting, using, and disclosing an individual’s personal and health information.

Particular caution should be exercised when dealing with an individual’s health information, including any medical advice or opinions about the person. Such information should only be collected and retained when necessary, and should only be disclosed after careful consideration of applicable privacy principles, including whether the individual has consented to the disclosure.²⁴

The RTW program must include confidentiality and record keeping procedures for:

• obtaining the worker’s informed consent to exchange information
• establishing and maintaining a confidential file for each injured worker
• restricting access to the files and storing them securely.

3. Consult workers and unions

Effective and successful RTW programs involve consultation with workers.

Consultation promotes a positive culture around recovery at work and workers compensation, and gives everyone an opportunity to influence policies and procedures. It is in the employer’s interest to give workers clear information to avoid misunderstandings and uncertainty.

Employers must consult their workers (and any industrial union that represents them) when developing their RTW program. Consultation arrangements should ensure that the communication needs of all workers are considered. This will ensure that all workers are able to participate equally. For example, consultation arrangements should accommodate the needs of workers who do not speak English or workers with disability.

Consultation can be facilitated through health and safety committees or their representatives, unions or other agreed means. The RTW program must explain how the employer meets this requirement.²⁵

4. Implement the return to work program

After considering feedback gathered during consultation, the employer must finalise the RTW program and arrange for it to be implemented.

This includes informing workers of their rights, obligations and the procedures for workplace rehabilitation and recovery at work. Employers may do this through induction programs, training courses, staff meetings, newsletters and noticeboards, and should consider the needs of workers who do not speak English or require assistance.

Employers must display or notify the workplace of the RTW progrm - failing to do so is an offence.²⁶

Employers should then continually review the RTW program, in consultation with the relevant parties, to ensure it is effective. The RTW program must specify review dates that suit workplace circumstances.

Employers must review their RTW program at least every two years.

Category 2 employers

Category 2 employers are any employers that are not Category 1 employers.

All employers must have a RTW program in place within 12 months of becoming a Category 2 employer.²⁷

Establishing a RTW program doesn’t need to be complicated, but it takes commitment from the employer and their workers to do things right.

Employers must consult with their workers and any industrial union that represents them when developing and reviewing their RTW program.²⁸

For Category 2 employers, implementing a successful RTW program involves three main activities:

1. Appoint the person responsible for recovery at work
2. Develop a return to work program
3. Implement the return to work program

1. Nominate the person responsible for recovery at work

Category 2 employers do not need to appoint a RTW coordinator, but they should nominate someone to manage any workers compensation and recovery at work activities that arise. This may be an existing employee or a RTW coordinator who is engaged through a work arrangement or contract.

Category 2 employers may also set up a shared arrangement with other employers. In such an arrangement, an employer association, a union, or a group of employers in the same business or location could share a RTW coordinator.

Employers must pay the cost of engaging or sharing a RTW coordinator. It is not a claims cost.

Employers that choose engaged or shared arrangements must ensure:

• the appointed person has relevant training, skills and experience
• they provide reasonable access to workers and the workplace
• the arrangement will not disadvantage workers
• they consult the workforce before proceeding
• there is no perceived or actual conflict of interest for the appointed person
• the other employers in a shared arrangement are in the same business or location
• the RTW program details the arrangements, including the person’s name, qualifications and experience
• the suitability of the arrangement is reviewed every two years as part of the RTW program review.

2. Develop a return to work program

Category 2 employers can meet their legal obligations by adopting or customising the standard return to work program for Category 2 employers for their workplace.

This RTW program outlines general procedures for handling work related injuries and illnesses, and represents an employer’s commitment to the health, safety and recovery of workers following a work related injury or illness.²⁹

Category 2 employers can also develop their own RTW program, using the standard RTW program as a guide.

Employers must consult their workers (and any union that represents them) when developing their RTW program. They should ensure the communication needs of all workers are considered so everyone is able to participate equally. This includes workers who do not speak English and those with a disability.

Consultation can be facilitated through health and safety committees or their representatives, unions or other agreed means.

3. Implement the return to work program

When Category 2 employers implement their RTW program, they must inform workers of their rights, obligations and the procedures for workplace rehabilitation and recovery at work.

Employers must make copies of the RTW program available to their workers, and provide a copy to any worker who requests it or has a workers compensation claim. If these arrangements are in place, Category 2 employers are not required to display their RTW program.⁴

Employers should continually review the RTW program, in consultation with the relevant parties, to ensure it is effective. The RTW program should specify review dates that suit workplace circumstances.

Employers must review their RTW programs at least every two years.

Provision of information to workers

An employer must ensure that certain information is accessible at all times to their workers.  This information includes a summary of the requirements of the 1998 Act with regard to how to notify the employer of an injury and make a claim for workers compensation. The employer must also provide information about the workers compensation insurance policy held by the employer, or if the employer is a self-insurer, a statement to this effect.  The regulations may prescribe further information to be made available to workers by employers.

The information can be made available to workers by publishing it on a website or by way of a computer program designed for use on a smartphone or other mobile device.

An employer can meet this requirement by using the “If you get injured at work” poster, but are not limited to this format.³¹

Appendix

• Return to work program checklist for Category 1 employers
• Requesting consent to release and exchange personal information
• Standard consent form for release of personal information
• Standard return to work program for Category 2 employers

References

<sub>1. Clause 11 of the 2016 Regulation and section 52(1) of the 1998 Act
2. Part 6 of the 2016 Regulation and section 52(1) of the 1998 Act
3. Clause 13 of the 2016 Regulation
4. Clause 21 of the 2016 Regulation
5. Clause 11(1) of the 2016 Regulation
6. Section 52 of the 1998 Act
7. Clause 19(4) of the 2016 Regulation
8. Clause 20 of the 2016 Regulation
9. Section 52 of the 1998 Act, Clause 19 of the 2016 Regulation
10. Clause 16 of the 2016 Regulation
11. Section 52(2)(b) of the 1998 Act
12. Section 52(2) of the 1998 Act and Clauses 16A and 17 of the 2016 Regulation
13. Sections 44(1), 47(1–3) and (5), 48(1) and 49(2) and 270 of the 1998 Act
14. Clause 42 of the 2017 WHS Regulation
15. Sections 63 and 256 of the 1998 Act and clause 40 of the 2016 Regulation
16. Sections 44(1) and (2) of the 1998 Act
17. Section 38 of the 2011 WHS Act
18. Section 14 of the Work Health and Safety (Mines and Petroleum Sites) Act 2013
19. Section 264(2) and (3) of the 1998 Act and section 84 of the 1987 Act
20. Section 69(1)(c) and section 264(3) of the 1998 Act
21. Sections 46(1) and 42 of the 1998 Act
22. Sections 41A and 49 of the 1998 Act and section 32A of the 1987 Act
23. Sections 241(1), 247 and 248 of the 1987 Act
24. Section 243 of the 1998 Act, Privacy Act 1988 (Cth) for Australian Privacy Principles, Health Records and Information Privacy Act 2002 (NSW) and Privacy and Personal Information Protection Act 1998 (NSW)
25. Section 52(2)(b) of the 1998 Act
26. Clause 17 of the 2016 Regulation
27. Clause 11(2) of the 2016 Regulation
28. Section 52(2) of the 1998 Act
29. Clause 13(2) of the 2016 Regulation and section 52(2) of the 1998 Act
30. Clause 18 of the 2016 Regulation
31. Section 231 of the 1998 Act</sub>