Parliament has recently passed the Workmen’s Compensation (Repeal) Act 2018 (Act No 30 of 2018). As indicated by its name, it repeals the original Workmen’s Compensation Act 1964 and replaces it with a new regime from 1 January 2019.
Although the date of commencement of the Act is yet to be gazetted (so it is not in force at the date of writing this commercial law update), the effect of the Act is likely to mean that from 1 January 2019 Workmen’s Compensation claims must be brought before and handled by the Accident Compensation Commission (“ACC”) established pursuant to the Accident Compensation Act 2017.
In this commercial law update we briefly consider what this will mean for employees and employers in relation to workplace accidents.
Government buildings, Suva, Fiji.
The Workmen's Compensation (Repeal) Act 2018 ("Repeal Act") changes a legal framework that has been in place for more than 50 years and constitutes an expansion of the ACC’s jurisdiction, which was recently created by Statute (2017) but had its jurisdiction limited to accidents involving motor vehicles. The repeal is also an amendment of the Accident Compensation Act 2017 and it inserts Division 2 into that Act to deal with accidents arising out of and in the course of employment.
The Repeal Act means that compensation claims arising from accidents arising out of and in the course of employment are required, from 1 January 2019, must be filed with the ACC.
The ACC must determine such claims under Part 3 of the Accident Compensation Act 2017. Amongst other things, the Accident Compensation Act provides:
- a 3 year application period, for any claims or pleadings in proceedings in other tribunals or courts to be served on the ACC
- the ACC may assess the compensation claim and in accordance with the Accident and Compensation Act make an offer of settlement which if accepted then acts as a bar (stop) on any other proceedings or claims for compensation
- the applicant must reject the ACC’s offer of compensation before proceeding with any common law claim in court for compensation in relation to the accident.
For a more detailed explanation of the provisions of the Accident Compensation Act, 2017 please refer to our commercial law update: Fiji has a new no fault Accident and Compensation framework, but how will it work?
Existing workmen’s compensation insurance policies will continue in effect after 1 January 2019, with the insurer obligated to reimburse the ACC for any compensation paid in respect of accidents arising out of and in the course of employment to the extent of the insurance cover. However, no new policies will be issued after 1 January 2019. Instead, 40% of the levy collected from Fiji's employers under the Fiji National Training Levy Order 1988 will be paid into the ACC’s compensation fund.
Despite the new legal framework there is an area of uncertainty and this is currently the ACC’s regulations provide for maximum payments of FJD $75,000 for permanent partial incapacity or death, FJD $150,000 for permanent total incapacity and FJD $75,000 for all other cases. We don’t know as yet if these limits will be adjusted or expanded upon in respect of injuries or death arising from accidents arising from and in the course of employment.
We expect that regulations requiring initial medical assessments to be made will apply to both motor vehicle accidents and accidents arising from and in the course of employment. We also expect that more detailed regulations in relation to this new legal framework will be forthcoming in due course.
Finally, we won't know until we see the regulations whether any particular situations will be excluded from the no fault cover and whether employers will need to be aware of these particular exclusions. This has occurred with motor vehicle accidents under the Accident Compensation Act 2017 where certain situations are excluded. At this stage, it is too early to tell whether after 1 January 2019 a prudent employer need not consult with an insurance broker to determine what areas it may still require private insurance for.
For further information, please contact Mary Muir: email@example.com
This commercial law update is provided for general information purposes only and it is not, and should not be relied on as, legal advice.