Newly introduced amendments to the South Australian workers compensation legislation puts more onus on employers to provide suitable employment for workers returning from injury.

The Return to Work (Employment and Progressive Injuries) Amendment Act 2024 amends the Return to Work Act 2014 (the Act), with a number of changes in force from 1 December 2024.

Among these changes is the extended responsibility of employers to find suitable employment for workers returning from injury.

Key points to note include:

● When an injured worker has some capacity to return to work, employers have a duty to provide suitable employment.

● If suitable employment has not been provided, the employee is required to advise the employer in writing of their desire to return to work, and the type of employment they believe they’re capable of performing.

● Employers then have one month to consider the request and advise the employee in writing as to whether they will be providing the requested employment, or an alternative.

● Reasons must be provided to explain any refusal to provide suitable employment and/or why you are proposing alternative employment options.

“The change in legislation is firmly putting the onus on employers to find suitable employment for people returning to work after injury,” says Trevor Creech, Director and Head of Workplace Solutions at Gow-Gates.

“By finding alternative roles if the employee isn’t yet fit enough to return to their previous role, employers can help people return to work faster — which we know improves longer-term outcomes.”

What happens if an agreement cannot be reached?

If the employer and employee cannot agree on suitable employment, the employee can ask ReturnToWorkSA to investigate, and, if there’s still no agreement, the employee can make an application to the South Australian Employment Tribunal to deal with the dispute.

If the tribunal finds the injured worker should have been provided with suitable employment, it can specify aspects of the employment to be provided including the nature and range of duties, as well as any adjustments that should be made to make the role possible.

The tribunal can also order the employer to pay the employee for the time that they could have been working.

Creech says “In most cases, an amicable agreement on returning to work is agreed. However, now employers will need to be proactive in this, and find roles for workers returning from injury.”

“Processes and records need to be established to evaluate applications for alternative employment. If a tribunal takes place, it’s essential that employers are able to prove that there wasn’t any genuine alternate employment, as well as sufficient demonstrable reasons this was the case.”

These amendments also cover self-insured employers, labour hire employees and host employers.

Self-insured employers must offer suitable employment across the entire corporate group, not just the workplace where the worker's injury occurred.

On the other hand, host employers must cooperate with labour hire employers by communicating about suitable alternate employment, but are not required to employ injured labour hire workers directly – rather, the injured worker will usually remain with their previous labour hire employer.

If the worker has been terminated for serious and wilful misconduct however, employers are not obligated to offer suitable employment.

If you would like more information or advice on how the Return to Work (Employment and Progressive Injuries) Amendment Act 2024 impacts your business, and what you need to do to help your insurance needs, contact your Gow-Gates representative today.

The contents of this article has been prepared with all due care, and is provided for information purposes only. The contents do not, however, constitute legal advice and should not be used as such.