On 4 April 2016, the decision of Brisbane City Council v Gillow & Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 007 and held the Queensland Industrial Relations Commission does not have power to give an employer leave to appear on appeals. This decision has significant ramifications for both self-insurers and employers.
This appeal arose in circumstances where Mr Gillow claimed he had suffered injuries during his employment with Brisbane City Council ('the Council'). The matter was reviewed by City WorkCover, the self-insurance body within the Council, who rejected his claims. The rejections were upheld by the Regulator. Mr Gillow then instituted three appeals against the decision of the Regulator but prior to the hearing the Regulator settled the appeals and entered into consent orders.
The Council had sought leave to be heard on the appeals, but its application was dismissed. The Council then brought this appeal which focussed on the power of the Commission to grant leave to appear at a hearing and whether the Council was a party to the proceedings. President Martin held the Commission doesn't have power to grant leave to an employer to appear at a hearing.
Traditionally, ss.329(b)(v) and 320(2) of the Industrial Relations Act provide the Commission with the power to hear from employers and self-insurers in good conscious and to properly inform itself of all matters. However, President Martin noted that s.549 of the Workers Compensation & Rehabilitation Act ("WCR") specifically sets out who may appeal a review decision being an insurer aggrieved by a decision of the Regulator or an employer if aggrieved by the decision of WorkCover.
Section 561 of the WCR Act gives a party aggrieved by a decision a right to appeal to the Industrial Court. However, President Martin held the Council was not a party to the proceedings and therefore had no standing to appeal the decision.
There is an inherent inconsistency in the WCR Act as an insurer aggrieved by a decision of the Regulator, that is having the Regulator disagree with its decision to reject a claim, has a right to appeal against the decision of the Regulator under section 549(2). However, an insurer loses the opportunity to be 'aggrieved' under the WCR Act if its decision is initially upheld by the Regulator, but that decision is subsequently abandoned or compromised prior to hearing. In these circumstances, when the matter has progressed past the review decision, the insurer no longer falls within section 549(2).
This case highlights shortcomings in the WCR Act with respect to rights in the review process as opposed to the appeal process and most importantly, the space between the review decision being made and the appeal being heard. The WCR Act does not specifically contemplate the Regulator conceding an appeal or in effect, making a further review of its earlier review decision.
Arguably, steps now need to be taken to address circumstances where this occurs through legislative change giving the employer standing to be a party in both matters of review and appeal or by adding an intermediate provision to cover the period between the review decision and hearing when the Regulator in effect reverses its decision.
In the meantime, it will be interesting to see any interim measures adopted by the Regulator to remove the inherent unfairness to an employer in circumstances where the Regulator changes its earlier review decision prior to hearing, and if this will be taken to be an amended review decision which could potentially reactivate the parties review rights giving employers and self-insurers the opportunity to be 'aggrieved' and seek appeal under the WCR Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
