1.4.1 Decision making

1.4.1.1 Decision making process | 1.4.1.2 Recording decisions | 1.4.1.3 Service of determination notices (including adverse decisions) | 1.4.1.4 Principles of good administrative decision making

This section outlines the principles Agents must follow when making decisions on behalf of WorkSafe.

Agents need to ensure the decisions they make are consistent with, take into account and follow the criteria and/or procedures required by the legislation.

1.4.1.1 Decision making process

Here are the steps Agents need to follow when making a decision:

Step	Agent action
Find relevant facts	Find the relevant facts to help determine such things as the nature of the injury, whether the injury is work-related, if the worker’s employment connected with the State of Victoria.
Gather information	Agents must take all reasonable steps to seek, obtain and to fairly and properly consider all relevant information before making a decision based on the facts and the merits of the individual case. Contact the worker, the employer and the worker’s treating medical practitioner(s) to establish if there is any other relevant information when making decisions about a worker’s entitlement. Contact details, including attempts are documented in Novus.
Identify relevant legislative provisions	Decisions must be based on the legislation, although other documents may be used for reference. Policies, procedures, guidelines, manuals and related instructions will help you identify the relevant provisions and to apply them appropriately. Case law should also be used to give meaning to the legislation where appropriate.
Apply the facts to the law	Determine whether the facts of the particular case meet the acceptance and entitlement criteria specified in the legislation. Policies and procedures in the Claims Manual help you to apply the legislation in a fair and proper way.
Assess information gathered	It is essential that there is appropriate evidence to support the findings on which the decision is based. Suspicion is not a sufficient basis on which to make a decision. Before you make a decision you should assess whether you have gathered enough information to be able to make an informed decision in accordance with legislative requirements.
Make the decision	Agents should also follow a number of basic administrative law principles. Following these principles will help avoid making an invalid or unlawful decision. Where a decision to reject, reduce or terminate entitlements is made, the decision must be made by a case manager in conjunction with the MDT, and after endorsement by a Technical Specialist. Where possible, the decision is communicated and explained verbally to the worker before written confirmation of the decision is made. When an adverse decision is made you should add an Adverse Decision process to the claim in Novus. If a checklist is not used, detailed file notes must indicate ‘sound and proper decision making’ guidelines were followed.
Document and communicate the decision	Fully document the reasons for the decision and the information relied upon to make the decision so that they will withstand scrutiny from any external review process or auditing. Decisions and reasoning are to be documented in Novus. Agents must communicate decisions within the timeframes and in the manner required. You need to ensure that the person affected by the decision understands the decision and the basis upon which it was made.
Decision referred to conciliation	When the Agent receives the initial advice that a conciliation application has been made, they must review their decision, taking into account any new information. New material is received If new information has been received, the Agent should (where appropriate) contact the following with a view to reaching a fair and proper decision: worker employer treating medical practitioner(s) independent medical examiner. Where initial decision is to stand The decision should not be altered if the Agent believes that the initial decision should stand. Agents should not view a variation of an initial decision as an admission of a mistake or be influenced by competing pressures such as an adverse employer reaction if the initial decision should be varied because it was incorrect (in fact or law). See: Dispute resolution

1.4.1.2 Recording decisions

Part of properly exercising statutory power involves proper recording of what has been done (and the reasons) to ensure that the legality of the decision can be established later if challenged.

Examples of a good decision record

A decision record should accompany each exercise of statutory power. A good decision record should include the following information:

who the decision is about
what was applied for and when
which Act applies
who made the decision
when the decision was made
the information the decision maker took into account to make the decision and their findings on relevant factual issues
the reasons for the decision.

Statement of reasons

A statement of reasons may be requested by a person after a decision is made or may be required by the legislation itself.

Decision making processes should record sufficient information to enable a statement of reasons to be easily produced.

See: Employer written request for reasons for a decision

1.4.1.3 Service of determination notices (including adverse decisions)

Agents must give written notice of any decision to accept or reject a claim for weekly payments and medical and like services.

Claims for weekly payments that are not rejected by written notice within the required timeframe (usually 28 days from receipt of the claim) will be deemed to have been accepted and the Agent must pay weekly payments in accordance with the legislation.

See: Time limits to determine liability

The legislation does not prescribe the method of service of a written notice but provides that a document may be served by:

giving or serving it personally
sending it by post or electronic communication to the person’s usual or last known place of residence or business or usual or last known electronic address or post office box
leaving it at that person’s usual or last known place of residence
leaving it at the person’s usual or last known place of business.

WIRC s593

Deeming provisions

Service by post

The legislation prescribes that service of a document that is sent by post is taken to have been effected two business days from the date of posting, unless the contrary is proved.

Service by electronic communication

The Electronic Transactions (Victoria) Act 2000 provides that, unless otherwise agreed, the time of receipt of an electronic communication:

to an electronic address designated by the worker: is the time when the electronic communication becomes capable of being retrieved by the worker.
at a non-designated electronic address of the worker: is the time when both:
the electronic communication has become capable of being retrieved by the worker and
the worker has become aware that the electronic communication has been sent to that address.

ETA s13A

Serving determination notices electronically where a worker has provided digital consent

Agents must do the following if serving a determination notice electronically:

confirm the worker’s email address for receipt of the determination notice at initial contact with the worker
send the determination notice as an attachment in the email in ‘portable document format’ (pdf) to maintain the integrity of the document
record details of the contact with the worker in relation to the above on Novus.

Where a worker has not provided digital consent

Where digital consent has not been previously obtained on an existing claim, should the need arise to communicate with the worker via email and SMS, the Agent must first obtain consent via telephone or email, at the earliest opportunity and prior to transmitting digital information to the worker.

Agents are to advise workers that they may revoke or add their consent at any stage of their claim.

Where digital consent cannot be obtained from the worker, the Agent must send correspondence via post (surface mail).

Service of decision notices by Agents while working remotely

Where Agent staff are working from home or other secure remote location outside of their usual office, the following process should be followed:

where a worker has previously provided consent to be contacted electronically by the Agent, as recorded in ACCtion/Novus, notices can be digitally signed (see further detail below), saved as a PDF, and emailed to the worker's current email address.
where the worker consent is blank, or the worker has not consented to digital communication, the Agent may call the worker to enquire if the worker is willing to change their mind. Agents should obtain and record informed digital consent in line with current policy, and ensure that the worker understands the risks associated with electronic communication.
where worker has not previously provided digital consent, is unable to be contacted, or maintains that they do not consent notices can be digitally signed, saved as PDF, and emailed via internal encrypted email to a dedicated email address within each Agent for centralised printing and mailing of notices.

Signing decision notices electronically

Agents may sign decision notices electronically when working remotely.

To ensure that Agents are compliant with the WIRC Act Workplace Injury Rehabilitation & Compensation Act 2013, Agents must ensure that:

signatures are only affixed to the decision notice by the person whose signature it is
all other existing records keeping requirements are abided by.

Note: Images of signatures should be stored by Agents in a way that is not broadly accessible to staff within the Agent and are otherwise in an encrypted format. For example, the signature image may be stored on a personal network share.

1.4.1.4 Principles of good administrative decision making

This topic outlines the principles of good administrative decision making.

Decisions must be in accordance with the legislation

Agents can only make decisions authorised by the legislation (or Regulations made under the legislation if applicable). It is therefore important to:

read the legislation
understand the decision the legislation is authorising Agents to make
identify the issues to consider and the evidence required to make the decision
follow the procedures in this Claims Manual which will help apply the legislation correctly.

Exercising statutory power

Agents can only exercise a statutory power in the legislation for the purpose for which it is conferred. Agents cannot exercise a statutory power for an improper purpose.

Relevant considerations

A statutory decision maker must consider all matters relevant to the decision to be made. Relevant matters are those expressly referred to in the legislation or which may arise by implication from the subject matter, scope and purpose of the legislation.

If the legislation does not specify any relevant considerations and leaves the discretionary power largely unconfined, then the decision maker may determine what matters are relevant and the comparative importance of them. What is determined relevant must be consistent with the goals of the legislation.

A decision maker is not obliged to make an exhaustive list of all matters that might conceivably be relevant to a decision and then consider them all. Relevant matters are those that must be considered, or relied on, for the exercise of the power.

Agents should make sure they consider all matters relevant to the decision to be made.

Irrelevant considerations

An irrelevant consideration can be just as fatal to a decision as failing to take into account a relevant consideration. Whether a matter is irrelevant is a matter of understanding the legislation conferring the power.

Reliance on an incorrect or unsubstantiated fact may be treated as an irrelevant consideration. Agents should take care to avoid relying on an insupportable finding.

The role of policy & discretion

Agent staff exercising statutory powers should comply with relevant WorkSafe policies and procedures, including the Claims Manual.

However, care needs to be taken to ensure that WorkSafe policies and procedures do not inappropriately restrict a decision maker’s discretion. Policies and procedures can guide how to exercise discretion by, for example, identifying relevant criteria or setting out a consultation process but they cannot remove or restrict a discretion conferred on a decision maker by the legislation.

Discretion

Discretion is a term often used when discussing statutory decision making. It refers to the element of choice a decision maker has in forming their view or making their decision. Discretion may be evident where the legislation uses the term 'may' instead of the term 'must'. However, this is not a definitive test of the existence of discretion.

Discretions are vested in the decision maker. A decision maker may act improperly if they act at the dictate of another person.

Limits to the exercise of discretion may be found in the legislation or in the nature of the decision making function itself.

For example The legislation may require the discretion to be exercised in accordance with specified statutory criteria. If the discretion is not exercised in accordance with the specified criteria, then it may cause the decision maker to make an error which affects the validity of the decision.

Agents should always consider the limits of their discretion, ensuring they act in accordance with the legislative framework.

Decisions based on the best available information

Decisions should be based on and supported by the best available evidence. Courts may imply into statutes an obligation to consider the most recent and accurate information available to the decision maker.

Obligation to seek out relevant information

In some situations, there is an obligation to seek out relevant information. For example, the legislation may make it clear that there is an obligation to conduct an inquiry to discover relevant information.

However, even without such an express obligation, the courts may hold the obligation exists where:

it is obvious that information is readily available that is centrally relevant to the decision to be made
the decision maker is on notice the information existed but chooses not to seek it out. This is known as 'constructive knowledge' or 'wilful blindness')
the information available to make a decision is clearly inadequate.

Give proper, genuine & realistic consideration

A decision maker must give proper, genuine and realistic consideration to the merits of a decision. The paperwork (decision record) should reflect this in case there is a challenge to the decision.

See: Record decisions

List matters considered

While the failure to mention a matter expressly will not necessarily give rise to an inference that it was not considered, it is good practice to list all matters considered.

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