5.2.1 Provide employment
Employers have an obligation to provide pre-injury or suitable employment to a worker. This applies for the obligation period to the extent that it is reasonable to do so. Specific exemptions apply under the legislation.
For detailed information on this obligation, refer to Compliance Code 1 of 4: Providing employment, planning and consulting about return to work.
Provide employment
If, during the employment obligation period, the worker:
- no longer has an incapacity for work, the employer must provide the worker with employment that is the same as or equivalent to the position the worker held before the injury
- has a current work capacity Under the legislation, unless inconsistent with the context or subject-matter — current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment, declared training program, the employer is required to provide the worker with suitable employment.
Exceptions
Agents should refer to Exceptions to RTW obligations for information about employers who are exempted from complying with their RTW Return to Work obligations.
52 weeks obligation period
The obligation continues for 52 weeks. This period may not be consecutive as it is an aggregated period and begins on the earliest date (see below) and includes those periods during which a worker has an incapacity for work (resulting from or materially contributed to by the injury to which the employment obligation period relates).
Obligation to provide employment begins
The employment obligation period starts on the earliest of the following dates when the employer:
- receives a valid medical certificate The first medical certificate is for a maximum of 14 days and can only be issued by a registered medical practitioner. issued by a registered medical practitioner
- receives a claim for compensation for weekly payments
- is notified by WorkSafe or their Agent that the worker has made a claim for compensation for weekly payments
- is notified by WorkSafe or their Agent that the worker has provided a medical certificate.
Periods excluded from the obligation period
The employer obligation period does not include any period:
- the worker does not have an incapacity for work
- commencing from the date the worker’s claim has been rejected by the Agent and ending on the date that a direction is issued by a Conciliation Officer or a court determination that weekly payments are to be paid is made
- commencing on the date that WorkSafe sets aside a decision to accept a claim for compensation against an employer and ending on the date that a direction or recommendation of a Conciliation Officer or a court determination that weekly payments are to be paid, is made
- commencing on the date a decision to revoke a direction of a Conciliation Officer to pay weekly payments is made and ending on the date that weekly payments resume (unless the employer continues to provide suitable or pre-injury employment (1) In this Part — pre-injury employment means the employment of a worker in a position which is the same as or equivalent to the position in which the worker was employed before receiving the injury)
- during which a RTW improvement notice issued to the employer is stayed by WorkSafe or by VCAT Victorian Civil Administrative Tribunal.
Other relevant factors
The employment obligation period is reduced by the aggregate of any periods that the employer provided suitable employment when the employer was not required to do so (for example, where the claim was initially rejected).
Ideally, employers would continue to meet this obligation during a period that a rejected claim is being disputed. This ensures continuity, is good for the worker’s recovery and their RTW. Where suitable or pre-injury employment is provided in such periods this counts towards fulfilment of the employment obligation period.
Employers obligations to offer home duties
As employer RTW obligations are 'to the extent that is reasonable', each case needs to be reviewed individually to determine what is reasonable in that specific circumstance. Employers need to ensure they are not discriminating against an injured worker and are offering them the same options as any of their other staff members. If an injured worker requests to work from home due to concerns relating to COVID-19 when other staff members are not, the employer must consult with the worker and take their views into account (as is required in section 105 of the WIRC Act Workplace Injury Rehabilitation & Compensation Act 2013). This request may be reasonable and able to be accommodated in some cases and not in others.
When supervising and monitoring an injured worker working from home, employers may increase consultation with the worker or arrange regular meetings to monitor their progress.
Obligation after 52 weeks
Employers are encouraged to provide appropriate employment for their workers after the obligation period ends.
Reaching the end of the employment obligation period does not automatically enable an employer to terminate a worker’s employment. For example, State and Commonwealth labour and discrimination laws may place additional obligations on employers. In addition, Enterprise Bargaining Agreements may be relevant.
Employers should become familiar with these and other relevant requirements.