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Workers Compensation Return-to-Work Program

Version 1.0 Updated 19 Mar 2018
Policy Manage

Who can use this document

This document can be used by NSW employers only.

Caution: The Return-To-Work Program you will create using this template only takes into consideration the minimum requirements for such programs in NSW. As such, the program may need to be amended if your business operates in other States and Territories. You should seek advice before adapting the program to meet the requirements of these other jurisdictions.

Note: The commentary below is not a substitute for legal advice. As such, if you are not sure of your legal obligations or whether the Program you create is suitable for your business, you should seek advice from a workplace/WHS lawyer skilled in these issues.

Commentary

As a result of reforms to workers compensation laws in NSW (which commenced on 30 June 2008), not all employers in NSW are required to take out workers compensation insurance. For example, employees who pay $7,500 or less in annual wages are exempt (unless they employ an apprentice or trainee, or are part of a group for premium purposes). If you are unsure whether or not you need to take out workers compensation insurance, you should speak to your legal advisor or your insurer.

Despite these reforms, all employers in NSW are still required to have in place a return-to-work program, unless a specific exemption applies (for example, for owner builders etc). A written return-to-work program must be put in place within 12 months of the business becoming an employer. It is an offence not to have a return-to-work program in place. If you are in any doubt about whether you are required to have such a program, contact your legal advisor, WorkCover, or your workers compensation insurer.


What is a Return-To-Work Program?

A Return-To-Work program comprises the general policies and procedures an employer has in place for managing workplace injuries and the rehabilitation (and if necessary, vocational re-education) of injured workers. The injuries and illness which the program is intended to cover are those injuries which occur during the course of employment and are compensable under workers compensation laws. A return-to-work program MUST:

  • be in writing;
  • be developed in consultation with the workers concerned and any industrial union of employees representing those workers;
  • be consistent with the insurer's injury management program;
  • must be displayed at the workplaces and workers must be notified of the program; and
  • must be provided to any worker on request.

The return-to-work program requirements differ for employers depending on whether they are Category 1 employers or Category 2 employers.

A Category 1 employer is an employer:

  • with a base premium which exceeds $50,000; or
  • who is self-insured; or
  • who employs more than 20 workers and who is insured by a specialised insurer.

 

A Category 2 employer is an employer who is not a Category 1 employer.

Category 1 employers

A Category 1 employer:

  • must develop a customised return-to-work program in accordance with WorkCover’s 'Guidelines for Workplace Return-to-Work Programs' (which can be accessed through the WorkCover website) in consultation with its workforce;
  • must display its return-to-work program at the workplace, and workers must be notified about the program; and
  • must appoint and train a return-to-work coordinator.

Two or more Category 1 employers may share a return-to-work program if particular requirements are met, and those employers provide WorkCover with a copy of their return to work program and demonstrate:

  • the employers have a common interest, such as same industry or same geographical location;
  • the shared or outsourced arrangeements will provide improvements in the provision of return to work services;
  • workers will not be disadvantaged; and
  • the return to work co-ordinator has significant experience in workplace rehabilitation.


Category 2 employers

A Category 2 employer who does not establish a separate return-to-work program may adopt the standard return-to-work program prepared by WorkCover, which is available through the WorkCover website. However, it is preferable to establish a program which is consistent with the requirements of the workplace. The program does not need to be displayed in the workplace, however, workers must be notified about the program and provided with access to a copy of the program. A copy of the program must be provided to any worker who requests a copy or who applies for compensation for a workplace injury. A Category 2 employer is not required to appoint a return-to-work coordinator.

Offences

Failure to display and/or notify workers about the program is an offence and penalties can be imposed for non-compliance. In addition, there are prohibitions on dismissing ill or injured employees. As such, to avoid risk of legal action, specific legal advice should be sought before terminating the employment of any injured worker.

IMPORTANT: Prior to implementing the return-to-work program you will need to:

  • ensure it reflects the individual requirements of your business (for example, the business practices, environment, and culture of the workplace);
  • check the program is consistent with other relevant workplace policies (e.g. WHS/OHS policies and procedures etc);
  • nominate your preferred WorkCover accredited rehabilitation providers (making sure they have expertise in rehabilitating workers in the fields in which you operate);
  • check it complies with your insurer’s workers compensation injury management program, and any other requirements which may be specified by the insurer. For example, your insurer may require you to include additional policies and procedures to those which are covered in the template provided; and
  • consider whether you need to make it available in other languages or provide a verbal explanation of its terms to your workers.

 

Regularly review the program

It is important that you regularly review your return-to-work program (at least biannually, but more often if required in the circumstances of your business), to ensure it is up-to-date and continues to meet the specific requirements of your workplace and your insurer’s injury management program. At an absolute minimum, the program must be reviewed every 2 years.

Additional tailor-made program

In addition to the return-to-work program when a worker is injured an employer must also develop an individual, tailor-made, return-to-work plan for managing the return to work of the particular worker who has been injured. For example, working out what temporary suitable duties the worker can perform given their injuries.

The worker’s treating doctor, your insurer, your return-to-work coordinator and if necessary, a WorkCover accredited rehabilitation provider can assist you to develop an appropriate plan for the particular worker. The template you will create using this document will not create this individual return-to-work plan.

WorkCover’s 'Guidelines for Employers' Return-to-Work Programs'

You should be aware that NSW WorkCover has published a document called 'Guidelines for Employers’ Return-to-Work Programs'. That document:

  • outlines WorkCover’s 'Guidelines for confidentiality of injury management' (see Appendix C) which you will need to comply with;
  • provides an 'Information Consent Form' (see Appendix D) which you should ask the injured worker to complete, sign and date, to enable you to obtain important information on their medical condition and ongoing rehabilitation progress; and
  • provides a template 'Return-to-Work Plan' (see Appendix E) which may need to be adjusted to suit the individual needs of your business.

 

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