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.
Here are the steps Agents need to follow when making a decision:
|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. You will need current medical certificates to check if a suitable job offer was made.|
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 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.
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:
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
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.
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.
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.
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.
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).
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.
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.
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 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.