Is greater access to Commonwealth workers’ compensation and WHS regimes on its way?

By Sarah Harrison and Nicholas Beech


Proposed changes to the Safety, Rehabilitation and Compensation laws will make the Comcare scheme more accessible by permitting ‘national employers’ to obtain self-insurance licences and will extend Commonwealth WHS laws to apply to new self-insurers. Employers who operate in more than one Australian State or Territory may wish to consider this scheme as a means of ensuring consistency of their insurance and safety legislative requirements and potentially claims management processes.


Background
The Safety, Rehabilitation and Compensation Act 1988 (SRC Act) provides rehabilitation and workers’ compensation arrangements for Commonwealth and Australian Capital Territory Government employees, as well as employees of a small number of private corporations. Eligible private corporations can apply for a licence to self-insure for workers’ compensation purposes. Presently a private corporation must meet a ‘competition test’ to be eligible to apply for a licence. Very few corporations are able to do so.
Generally, if a private corporation holds a licence its employees are also covered by the Commonwealth’s Work Health and Safety Act 2011 (WHS Act). However, in anticipation of national harmonisation of work health and safety laws, presently under the WHS Act new entrants to the Comcare scheme are not covered by the Commonwealth WHS regime and must retain coverage and comply with the WHS or OHS laws of each jurisdiction in which they operate.


Proposed changes to Commonwealth Comcare Scheme
The Australian government has recently introduced changes to the Comcare scheme that seek to expand access for national employers to compensation and work health and safety coverage.
If passed, the Safety, Rehabilitation and Compensation Amendment Bill will, among other things, replace the existing competition test with a ‘national employer’ test and will extend Commonwealth WHS laws to apply to new self-insurers. These proposals follow the recommendations of several inquiries and extensive national consultation and are designed to reduce the compliance and cost burdens on multi-state employers.
A corporation will be a national employer if it is:
a. required to meet the obligations of an employer under a workers’ compensation law of an Australian jurisdiction; and/or
b. a self-insurer or self-insured employer within the meaning of a workers’ compensation law of an Australian jurisdiction,
in two or more Australian jurisdictions.

The Bill will also make amendments that will allow for a group licence to be granted to an eligible group of corporations removing the present need under the SRC Act for each corporation in the group to apply for a single licence.


At the ground level, it is also proposed to modify the compensation entitlements by excluding access to workers’ compensation where:
a. injuries occur during recess breaks away from an employer’s premises; or
b. a person engages in serious and wilful misconduct, even if the injury results in death or serious and permanent impairment.

Who does this affect?
Employers operating in two or more Australian jurisdictions.


How the changes may affect you
If the changes are passed national employers will be able to apply directly to the Safety Rehabilitation and Compensation Commission for a self-insurance licence. This option provides for a streamlined one-step eligibility and application process. It will still be necessary for corporations to meet stringent financial, prudential and work health and safety performance requirements presently imposed on prospective self-insured employers.


The potential added benefit of obtaining a licence is reduced workers’ compensation law compliance with national employers only needing to comply with a national regulator and a single WHS regime. This single system should overcome inequalities in benefits for workers, provide clarity and consistency around compliance and reduce management costs. It could allow corporations to consolidate the number of advisors that manage its claims in the jurisdictions in which it operates which in turn should facilitate more efficient identification of common issues and responsive steps.
These potential changes may be welcome to corporations operating in multiple Australian jurisdictions, particularly those who have operations in Western Australia, Victoria and Queensland where the model work health and safety laws have not yet been adopted, won’t be adopted or are presently being amended as it will ensure consistency of duties and benefits across the country.

Contact Us

Zenergy News

Directors' duties for psych risks unpacked in new report
April 23, 2025
The WHS obligations of company directors include taking reasonable steps to understand the psychological hazards in their workplaces, and this is a "personal" prosecutable duty, a new guide for directors warns. Directors' obligations include establishing that their organisations and their management "are equipped with appropriate resources and processes to eliminate or minimise these risks to the extent that is reasonably practicable", the guide by the Australian Institute of Company Directors and law firm King & Wood Mallesons says. Most of any organisation's work to address psychosocial hazards will be "driven by management", given the complexity of the risks and the deep operational knowledge required to guide action, it says. "The board plays a supporting role in constructively challenging these efforts and maintaining oversight of how effective psychosocial risk management contributes to broader organisational culture and leadership." Under Australia's national model WHS laws – adopted by all jurisdictions other than Victoria, which has similar legislation – officers have a duty to exercise due diligence to confirm their organisation is meeting its WHS obligations. (See section 27 of NSW's version of the laws, for example.) This duty is a "personal duty, meaning [officers] can be prosecuted for failing to meet their due diligence obligations", the guide says. "Prosecution typically requires proof that the officer failed to take reasonable steps to comply with their duty, assessed in the context of the organisation's overall safety and health management system," it says. These due diligence obligations apply to paid directors, and are "recommended" for volunteer directors, who can be prosecuted in limited circumstances. "While non-executive directors have not been the focus of WHS regulators to date, this can change, and regulatory expectations are rising," the guide notes. According to the 12-page document , company boards and governance play a crucial role in ensuring psychosocial risks are managed effectively. Directors must oversee management's efforts at identifying and implementing control measures, set expectations and confirm that the necessary frameworks are in place. "This includes seeking information, reviewing board reports, assessing organisational culture, and challenging management where needed to strengthen risk controls," the guide says. Examples of how boards should address the workplace factors that create psychosocial risks include: Overseeing how managers monitor the risks associated with work design by drawing on complaints data, employee surveys, and absence and turnover rates, and engaging regularly with management to assess risks and evaluate measures; Confirming that management is complying with the positive duty to eliminate workplace sexual harassment, and obtaining regular reports on key behavioural risks involving code of conduct breaches and harassment cases; Setting expectations for management to provide workers with practical assistance and timely consultation in the event of organisational change and restructures, which can create significant stress; Engaging with management to review how it is addressing remote work risks, and ensuring there they have a clear policy to guide them in determining when remote arrangements are appropriate; and Overseeing how HR and performance management processes are managed, and confirming that investigation procedures are fair, workers have access to appropriate support, and outcomes are handled as consistently as possible. Governing WHS Psychosocial Risks: A primer for directors, by the Australian Institute of Company Directors and King & Wood Mallesons, April 2025 This article has been reproduced with permission from OHS Alert, and the original version appears at www.ohsalert.com.au.
April 7, 2025
Zenergy recently hosted Women in Safety, a special networking event dedicated to fostering collaboration in the health, safety, and wellbeing sector. Held on March 20, 2025, at The Winery, Surry Hills, this event provided a relaxed and welcoming atmosphere where professionals gathered to exchange insights, share experiences, and build meaningful connections. With attendees from diverse industries—including construction, logistics, corporate sectors, and more—the event highlighted the vital role of women in shaping safer workplaces across Australia.
March 25, 2025
Podcasts have become a dominant force in the world of media, revolutionising how we consume information and entertainment and the WHS, Environment & Sustainability is no different! As the podcast industry continues to expand, listeners are discovering a wealth of benefits, from educational insights to fostering community connections. In this article, we share some of the leading podcasts and why they’ve become a growing part of modern WHS, Environment & Sustainability consumption. Here are some of the leading podcasts that every WHS, Environmental, and Sustainability professional should tune into:
March 24, 2025
Colin Hansen, WHS Director John Holland - M7M12 Project
March 3, 2025
Zenergy invites you to be part of the prestigious 2025 Australian Workplace Health & Safety Awards (AWHSA) —a national platform dedicated to recognising outstanding achievements in workplace health and safety. These awards celebrate individuals and organisations that are making a real impact in fostering safer, healthier work environments.
February 28, 2025
Australia has enacted mandatory sustainability reporting requirements, effective from 1 January 2025, through the Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Act 2024. These regulations mandate that large entities disclose climate-related financial information as part of their annual reporting obligations.
More Posts