Table 6.2c: Suitable duties for injured workers

Workers’ Compensation and Rehabilitation Act 2003 s42 — Suitable duties are work duties for which the worker is suited, having regard to:

1. nature of the worker’s incapacity and pre-injury employment
2. relevant medical information
3. rehabilitation and return to work plan for the worker provisions of the employer’s workplace rehabilitation policy and procedures
4. worker’s age, education, skills and work experience;
5. if duties are available at a location other than the location in which the worker was injured — whether it is reasonable to expect the worker to attend the other location, and
6. any other relevant matters.

Suitable employment is defined in s4 of the Return to Work Act 2014 as follows:

In relation to a worker, means employment in work for which the worker is currently suited, whether or not the work is available, having regard to the following:

1. the nature of the worker’s incapacity and previous employment,
2. the worker’s age, education, skills and work experience,
3. the worker’s place of residence,
4. medical information relating to the worker that is reasonably available, including in any medical certificate or report,
5. if any recovery/return to work services are being provided to or for the worker, and
6. the worker’s recovery/return to work plan, if any.

The requirement to provide suitable employment does not apply in the following circumstances:

1. it is not reasonably practicable to provide employment (with the onus of establishing that on the employer); or
2. the worker left the employment of that employer before the commencement of the incapacity for work; or
3. the worker terminated the employment after the commencement of the incapacity for work; or
4. new or other employment options have been agreed between the worker, the employer and the Corporation under s 25(10); or
5. the worker has otherwise returned to work with the pre-injury employer or another employer. — s18(2).

Suitable alternative duties, in relation to a worker, are those duties for which the worker is suited, having regard to the following:

1. nature of the worker’s incapacity and pre-injury employment;
2. worker’s age, education, skills and work experience;
3. worker’s place of residence;
4. any suitable duties for which worker has received rehabilitation training;
5. and any other relevant circumstances.

Suitable alternative duties specifically exclude:

1. duties that are merely of a token nature or do not involve useful work having regard to the employer’s trade or business; or
2. duties that are demeaning in nature having regard to (1) and (2) above and to the worker’s other employment prospects — s143M(5)).

The employer does not have an obligation to provide duties if — s106(4) Workers’ Compensation Act 1951:

• worker  leaves voluntarily after the injury
• employer ends worker’s employment after the injury for a reason other than because the  worker was not fit for employment because of the injury
• the employer is a non business employer, and
• the employer cannot provide suitable employment.

s75A(6) Return to Work Act 1986 — Employment is suitable for a worker if it requires the worker to perform work for which the worker is fit as specified in the worker's statement of fitness for work, taking the following matters into account:

• their age
• their experience, training and other existing skills
• their potential for rehabilitation training
• their language skills
• the impairments suffered by the worker; and
• the provision of suitable employment includes the referral of the worker to the alternative employer incentive scheme developed by the Authority if the employer does not have other suitable employment available.

Suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under s4 of the Safety, Rehabilitation and Compensation  Act 1988, means:

1. in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed — employment by the Commonwealth or the licensed corporation, in work for which the employee is suited having regard to:
   1. the employee’s age, experience, training, language and other skills
   2. the employee’s suitability for rehabilitation or vocational retraining
   3. whether it is reasonable to expect the employee to change their place of residence, and
   4. any other relevant matter.
2. in any other case — any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i-iv).
   
   Under s40(1) — Where an employee is undertaking, or has completed, a rehabilitation program, the relevant employer shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment.

Suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this — s3 of the Seafarers Rehabilitation and Compensation Act 1992, means any employment (including   self-employment) for which the employee is suited having regard to:

1. the employee’s age, experience, training, language and other skills; and
2. the employee’s suitability for rehabilitation or vocational retraining; and
3. if the employment is available in a place that would require the employee to change their place of residence—whether it is reasonable to expect the employee to change their place of residence; and
4. any other relevant matter.
5. Under s52 — If an employee is undertaking, or has completed, a rehabilitation program, their employer must take all reasonable steps to provide the employee with suitable employment, or to assist the employee to find such employment.

Military Rehabilitation and Compensation Act 2004 (MRCA) s5 — Work for which the person is suited having regard to the following:

the person’s age, experience, training, language and other skills,

the person’s suitability for rehabilitation or vocational retraining,

if work is available in a place that would require the person to change their place of residence — whether it is reasonable to expect the person to change their place of residence, and any other relevant matter.

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) s4 — Suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:

1. in the case of an employee who was a permanent employee of the Commonwealth on the day on which he or she was injured and who continues to be so employed — employment by the Commonwealth in work for which the employee is suited having regard to:
   1. the employee’s age, experience, training, language and other skills;
   2. the employee’s suitability for rehabilitation or vocational retraining;
   3. where employment is available in a place that would require the employee to change their place or residence — whether it is reasonable to expect the employee to change their place of residence; and
   4. any other relevant matter; and
2. in any other case — any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).