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Guidelines for workplace return to work programs (May 2017)

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About these guidelines

The State Insurance Regulatory Authority (SIRA) is the New South Wales (NSW) government organisation that regulates and administers the state’s workers compensation system.

SIRA has developed these Guidelines for workplace return to work programs (guidelines) in line with the legislation to support, inform and guide employers, workers and other stakeholders in developing a return to work program for their workplace.

A return to work (RTW) program is the foundation supporting an organisational culture of recovery at work. These guidelines detail SIRA requirements and expectations regarding employer return to work programs and coordinators under the following NSW laws:

SIRA issues these guidelines under section 52 of the 1998 Act and they operate by force of law as delegated legislation. Specific sections of the workers compensation legislation that place obligations on employers and provide guideline-making powers are referenced throughout the document. Where these obligations and powers are referenced, the term ‘must’ has been adopted.

These guidelines also outline SIRA expectations of best practice workplace rehabilitation. Where these guidelines express SIRA expectations but there is no specific legislative obligation, the term ‘should’ has been adopted.

Scope

All NSW employers must have a return to work program in place within 12 months of starting a business, and it must be consistent with the insurer’s injury management program.1

These guidelines cover Category 1 employers and Category 2 employers, as defined in the 1998 Act and 2016 Regulation. The categories are based on the following criteria:

CategoryCriteriaReturn to work program requirements
1
  • Basic tariff premium over $50,000 a year.
  • Self-insured.
  • Insured by a specialised insurer and has over 20 employees.
Must follow the four activities in these guidelines and comply with the regulations.2
2
  • Basic tariff premium of $50,000 a year or less.
  • Insured by a specialised insurer and has under 20 employees.
Must either adopt SIRA standard return to work program for Category 2 employers or develop own program based on this.3

These guidelines apply to employers in the NSW coal industry except where there are legislative exemptions.

These guidelines do not apply to domestic or similar workers engaged by employers (including bodies corporate for strata or strata (leasehold) schemes), unless these workers are for the employer’s trade or business.

These guidelines do not apply to employers that:

  • hold owner-builder permits under the Home Building Act 1989 (NSW) (for workers employed for the work the permits relate to)4
  • are corporations that only employ workers who are directors of the corporation4
  • only employ workers who are their family members4
  • only employ workers who work outside NSW4
  • have a written exemption from SIRA (to the extent specified in the exemption).4

These guidelines do not address injury prevention.

For information on employer work, health and safety obligations please contact SafeWork NSW on 13 10 50.

For information on employer work health and safety obligations in the mining industry, please contact the Department of Planning and Environment on 1300 736 122.

Transitional provisions

These guidelines take effect on 31 May 2017.

Employers should update their return to work program to ensure it complies with these guidelines at the next scheduled review. All return to work programs must comply with these guidelines two years from the date of effect.

The guidelines apply to all workplace rehabilitation and return to work coordinator activities, and replace the Guidelines for workplace return to work programs published in September 2010.

Any SIRA document that refers to the 2010 guidelines now refers to these guidelines.

Section references

  1. Clause 11 of the 2016 Regulation and section 52(1) of the 1998 Act
  2. Part 6 of the 2016 Regulation and section 52(1) of the 1998 Act
  3. Clause 13 of the 2016 Regulation
  4. Clause 21 of the 2016 Regulation

Category 1 employers

Category 1 employers meet one of the following criteria:

  • The employer has a basic tariff premium over $50,000 a year.
  • The employer is self-insured.
  • The employer is insured by a specialised insurer and has over 20 employees.

All employers must have a return to work (RTW) program in place within 12 months of becoming a Category 1 employer.

Return to work program
A return to work program is a summary of the system the employer will use to manage workers with work related injuries or illnesses.1

The program must align with the employer’s insurer’s injury management program and be reviewed at least every two years. It should be written in plain English and the documented policies, procedures, roles, responsibilities and communications must support timely, safe and durable recovery at work.

Injury management program
An insurer-developed strategy for managing all aspects of work related injuries and illnesses.

Establishing a RTW program doesn’t need to be complicated, but it takes commitment from the employer and their workers to do things right.

For Category 1 employers, implementing an effective RTW program involves four main activities:

  1. Appoint a return to work coordinator
  2. Develop a return to work program
  3. Consult workers and unions
  4. Implement the program

1. Appoint a return to work coordinator

The RTW coordinator carries out the day-to-day duties of the RTW program, and is the link between the worker and their support team. The employer must employ the RTW coordinator or engage them to do this (see Employment arrangements).

Training, skills and experience

Category 1 employers must appoint someone with the relevant training, skills and experience to perform the role and functions of a RTW coordinator.

Research regarding RTW coordination has identified competencies which help deliver effective outcomes for injured workers. These competencies include:

  • effective communication skills – able to communicate clearly, actively listen to others and respond with respect
  • the ability to consult with and influence stakeholders – collaborate with others and value their contribution
  • negotiation and conflict resolution - gain consensus and commitment from others and resolve issues and conflicts
  • being organised and skilled in time management
  • the ability to think and solve problems – consider, analyse and develop solutions to barriers to recovery at work
  • a knowledge of NSW workers compensation legislation and the roles and responsibilities of stakeholders in the system
  • an understanding of the legal obligations of NSW employers.

SIRA’s online training modules can help employers assess RTW coordinator competency in the above areas.

Employers must retain evidence of their RTW coordinators’ relevant qualifications.2

Transitional provisions

Existing RTW coordinators meet the role’s training and experience requirements if they hold any of the following documents from SIRA or WorkCover:

  • a certificate of attendance at the SIRA-approved two-day course ‘Introduction to return to work coordination’
  • a certificate of attendance at a WorkCover-approved two-day course for rehabilitation coordinators from February 1995 or before
  • a letter exempting them from the requirement to attend training.

Training courses will continue to be available until such time as SIRA’s online modules are made available. Refer to the SIRA website for more information on RTW training.

Existing RTW coordinators who qualified before June 2012 may wish to undertake the SIRA RTW coordinator training again as numerous legislative changes have come into effect since this time, however this is not compulsory.

Role and functions

The RTW coordinator must have authority to represent and make decisions for the employer on the functions below. The RTW coordinator does not make decisions on claims liability or funding for treatment – this is the insurer’s responsibility.

The RTW program must outline the RTW coordinator’s role3 in recovery at work planning, and managing workers with a work related injury or illness. These duties must include:

  • compiling the initial notification information
  • coordinating the worker’s recovery at work, including identifying suitable employment opportunities
  • preparing, monitoring and reviewing a recover at work plan (in consultation with key parties) that documents the worker’s capacity and the duties available
  • liaising with external stakeholders, such as the nominated treating doctor, insurer, treatment providers, union and workplace rehabilitation provider
  • implementing the RTW program
  • supporting the redeployment of workers (internally or externally) into suitable employment when they cannot return to their pre-injury duties
  • keeping injury and recover at work statistics
  • keeping confidential case notes and records in line with laws and guidelines
  • promoting the health benefits of good work to the workforce
  • contributing to the improvement of relevant policies and systems.

Employment arrangements

A RTW coordinator does not have to be a full-time worker who is dedicated solely to the role. But if the RTW coordinator has other roles within the organisation, employers must ensure the RTW coordinator can carry out the functions listed above and any actual or potential conflict of interest between roles is addressed.

Conflict of interest
A situation where a person’s official duties conflict with their private wishes or needs, which may prevent them from fulfilling those duties impartially.

Employers should appoint a RTW coordinator who has well-established relationships with workers and a good understanding of all aspects of the workplace.

If an employer chooses to outsource this role or engage a RTW coordinator under a work arrangement or contract, they must ensure:

  • the appointed person has the required training, skills and experience
  • the arrangement will not disadvantage workers
  • they consult the workforce before proceeding with the arrangement
  • there is no perceived or actual conflict of interest for the person being engaged
  • the RTW program details the arrangements, including the person’s name, qualifications and experience
  • the suitability of these arrangements is reviewed every two years as part of the program review.

The employer must pay the cost of engaging a RTW coordinator. It is not a claims cost.

2. Develop a return to work program

Category 1 employers must ensure their RTW programs cover the following aspects:

  • leadership and commitment
  • workplace arrangements
  • rights and obligations
  • after an incident
  • support for the worker
  • recovery at work
  • dispute prevention and resolution
  • administration.

They can then use the Return to work program checklist for Category 1 employers to ensure the RTW program complies with these guidelines.

These guidelines set out the minimum requirements for a RTW program. Employers should add any other relevant policies or procedures that reflect the business practices, culture and environment of their workplace, and refer to the NSW workers compensation laws to ensure compliance.

Employer associations or approved workplace rehabilitation providers can help to develop a program, but employers must pay any associated costs.

Leadership and commitment

The RTW program must state the employer’s commitment to help workers recover at work. This statement should reflect the organisation’s structure and operating environment.

The RTW program must show its connection to work health and safety (WHS) policies and procedures under the NSW Work Health and Safety Act 2011 (2011 WHS Act) and Work Health and Safety Regulation 2011 (2011 WHS Regulation) and where applicable the Work Health and Safety (Mines and Petroleum Sites) Act 2013 and Work Health and Safety (Mines and Petroleum Sites) Regulation 2014.

Employers must detail how, following an injury, they will review their WHS policies and procedures to identify gaps and opportunities for improvement.

The program must detail how the organisation will develop a positive culture that promotes recovery at work. This includes:

  • fostering positive attitudes towards workers recovering at work
  • promoting the health benefits of good work.

Workplace arrangements

The RTW program must list the RTW coordinator’s name and contact details or indicate where these details are located (for example, the intranet). It must explain the RTW coordinator’s role and identify what authority and resources they have to negotiate, develop and implement activities.

The RTW coordinator must have reasonable access to injured workers and their workplace. See the Role and functions section for more on the RTW coordinator’s role.

Employers should nominate an approved workplace rehabilitation provider (provider) in the RTW program. In selecting the nominated provider(s) employers should consult with workers and any industrial union representing them.4 Visit our website for a list of approved providers.

While the doctor, employer or insurer usually recommend a workplace rehabilitation provider for each situation, workers must have the opportunity to refuse or request a change in provider. The RTW program must outline this procedure, including how workers will be told of this opportunity.

The RTW program must also document how the organisation will:

  • cooperate with the workplace rehabilitation provider
  • ensure the unique needs and arrangements of the workplace are understood by the workplace rehabilitation provider
  • ensure reasonable access to the workplace and injured workers.

Employers must consult with workers, and any industrial union representing them when developing their RTW program. The RTW program must then outline how this will be done.5

The RTW program must include staff communication and training about the program. This could include induction training, toolbox talks, intranet pages, staff development and other training programs.

It must also outline monitoring, review and display arrangements, including reviewing the RTW program every two years in consultation with workers and any union representing them.

Category 1 employers must display and notify the workplace of the RTW program – failing to do so is an offence. The RTW program must explain how the employer will do this.6

Rights and obligations

Employers must inform workers of their rights and obligations. The RTW program must detail how these will be communicated to workers throughout the recovery at work process.7

Workers are obliged to:

  • notify their employer as soon as possible after a work related injury occurs
  • participate and cooperate in establishing an injury management plan
  • carry out the actions such a plan requires of them
  • provide their consent for information regarding their injury management and recovery at work to be shared between the insurer, employer, nominated treating doctor, treating practitioners, providers and SIRA
  • make all reasonable efforts to recover at work.

Workers have the right to:

  • nominate their own treating doctor
  • employment that is both suitable and, so far as reasonably practicable, the same as or equivalent to their pre-injury employment
  • be consulted and involved in identifying suitable employment and developing their recover at work plan
  • privacy and confidentiality
  • access mechanisms for resolving complaints and disputes.

For more information, refer to Injured at work: A recovery at work guide for workers and the Guidelines for claiming workers compensation.

The program must also outline the responsibilities and obligations of the worker’s support team, including the:

After an incident

Employers must provide first aid equipment and trained personnel for the workplace. They must ensure all workers can access the equipment and there is sufficient access to facilities for administering first aid.

The RTW program must detail the organisation’s first aid arrangements, or refer to these procedures if documented elsewhere.8

Employers must keep a register of injuries detailing all work related injuries or illnesses, whether or not they result in a workers compensation claim. They must also keep a record of each notifiable incident.

Different WHS notification requirements apply to mining workplaces.

Notifiable incident
A death, serious injury or illness, or dangerous incident that results from a business’ conduct or an action at a workplace.

The register may be written or electronic and the RTW program must describe how the employer will inform workers about procedures for completing it.9

An injured worker must report the injury to their employer as soon as possible after sustaining it. Employers must then notify the insurer within 48 hours of receiving report of a work related injury.

The RTW program must include procedures for early reporting by workers and to the insurer, and describe how the employer will inform workers of these procedures.10

Employers must report any notifiable incidents to the WHS regulator. The RTW program must explain how the employer will inform the WHS regulator of any notifiable incidents, or refer to this procedure if documented elsewhere.11, 12

Support for the worker

Understanding a worker’s situation and offering them support will positively affect the worker’s response to their injury and enable successful recovery at work.

Appropriate communication is essential to facilitate recovery at work for a worker. The RTW program must document how the organisation will maintain positive and effective communication with injured workers and the RTW team, and who will be responsible for this.

The RTW program must detail how the employer will gain the worker’s informed consent to gather and exchange information about the work related injury and recovery at work.

To give informed consent, a worker needs to understand the implications of agreeing or refusing.

The RTW program must describe:

  • how the employer will gain consent to release and exchange information about a worker’s recovery at work
  • what kind of information will be exchanged
  • who is authorised to exchange this information
  • how the worker will be informed of the benefits of information exchange and their associated rights, obligations and potential penalties for non-compliance.

For more on consent, see the Appendix. Employers may use the SIRA standard consent form for release of personal information (see Appendix) or the certificate of capacity to gain consent.

To ensure workers’ weekly payments are prompt and correct, the RTW program must include procedures13 for:

  • advising the insurer of the worker’s pre-injury average weekly earnings (PIAWE)
  • making weekly payments at the usual times wages are paid
  • passing other payments on to the worker as soon as practicable after receiving them from the insurer
  • advising the worker of dispute resolution mechanisms.

Employers must not refuse or delay passing on entitlements to a worker. They may incur a penalty if they do so.14

As soon as possible after being notified of a significant injury or illness, the employer must participate and cooperate while the insurer writes an injury management plan for the affected worker. The RTW program must detail how the employer will work with the insurer to develop this plan, including an offer of suitable employment.

Significant injury
An injury likely to make the worker unable to work for more than seven continuous days, whether or not those are work days, and whether or not the worker’s incapacity is total, partial or a combination of both.15

Recovery at work

Employers must offer workers suitable employment, where reasonably practicable, so they have the opportunity to recover at work. The employment may be either full time or part time and, where reasonably practicable, the same as or equivalent to the worker’s pre-injury employment.

This may be the same job with different hours or modified duties, a different job at the same or a different workplace, training opportunities or a combination of these. This is also referred to as suitable, alternate, modified or light duties.

Employers must provide suitable employment, where reasonably practicable, even when a claim is in dispute.16

The RTW program must document the policies and procedures for providing suitable employment, including:

  • who is responsible for identifying suitable employment, and how they will do so
  • how the employer will consult with the worker
  • in what circumstances the employer would engage a workplace rehabilitation provider
  • the process for resolving disputes if parties disagree
  • strategies to manage instances where no suitable employment can be identified.
When a worker is injured: A workers compensation guide for employers
A step-by-step guide to identifying suitable employment and developing a recover at work plan, available on our website.

Tailored planning is essential to a successful work outcome for both employer and worker. This involves developing and maintaining a recover at work plan. The RTW program must detail the employer’s policies and procedures for:

  • including the worker in the development of the plan
  • what each plan should contain
  • managing the worker’s appointments for treatment and rehabilitation
  • who should have a copy of the plan
  • monitoring and reviewing the plan
  • notifying relevant parties of changes to the plan.
Recover at work plan
An individual plan that the employer develops in consultation with the worker to manage recovery at work. Additional information including an example plan is available on our website.

Some workers will not be able to return to their pre-injury workplace. The RTW program must outline the support and steps the employer will offer, including retraining and job placement.

The RTW program must also describe how the employer will inform workers of their rights regarding dismissal under workers compensation law.

An employer cannot legally dismiss a worker for six months (or the length of any accident pay in the worker’s award or agreement) after the worker becomes unfit for employment due to a work related injury.

If an employer dismisses a worker because of a work related injury at any stage in the claim, the worker may apply to the employer to be reinstated. If the employer then replaces the worker within two years of dismissing them, the employer must inform the replacement worker that the dismissed worker may be entitled to be reinstated to the role.17

Dispute prevention and resolution

To prevent and resolve disputes, employer RTW programs must detail:

  • how they will prevent disputes
  • what processes they will use to resolve disputes about injury management, suitable employment or recover at work planning
  • how they will advise workers of the workplace dispute resolution arrangements and formal dispute mechanisms available through the workers compensation system.

Administration

Employers should familiarise themselves with their legal obligations when collecting, using, and disclosing an individual’s personal and health information.

Particular caution should be exercised when dealing with an individual’s health information, including any medical advice or opinions about the person. Such information should only be collected and retained when necessary, and should only be disclosed after careful consideration of applicable privacy principles, including whether the individual has consented to the disclosure.18

The RTW program must include confidentiality and record keeping procedures for:

  • obtaining the worker’s informed consent to exchange information
  • establishing and maintaining a confidential file for each injured worker
  • restricting access to the files and storing them securely.

3. Consult workers and unions

Effective and successful RTW programs involve consultation with workers.

Consultation promotes a positive culture around recovery at work and workers compensation, and gives everyone an opportunity to influence policies and procedures. It is in the employer’s interest to give workers clear information to avoid misunderstandings and uncertainty.

Employers must consult their workers (and any industrial union that represents them) when developing their RTW program. Consultation arrangements should ensure that the communication needs of all workers are considered. This will ensure that all workers are able to participate equally. For example, consultation arrangements should accommodate the needs of workers who do not speak English or workers with disability.

Consultation can be facilitated through health and safety committees or their representatives, unions or other agreed means. The RTW program must explain how the employer meets this requirement.19

4. Implement the return to work program

After considering feedback gathered during consultation, the employer must finalise the RTW program and arrange for it to be implemented.

This includes informing workers of their rights, obligations and the procedures for workplace rehabilitation and recovery at work. Employers may do this through induction programs, training courses, staff meetings, newsletters and noticeboards, and should consider the needs of workers who do not speak English or require assistance.

Employers must display and notify the workplace of the RTW program – failing to do so is an offence.

Employers should then continually review the RTW program, in consultation with the relevant parties, to ensure it is effective. The RTW program must specify review dates that suit workplace circumstances.

Employers must review their RTW program at least every two years.

Section references

  1. Clause 11(1) of the 2016 Regulation
  2. Clause 19 of the 2016 Regulation
  3. Clause 20 of the 2016 Regulation
  4. Clause 16 of the 2016 Regulation
  5. Section 52(2)(b) of the 1998 Act
  6. Clause 17 of the 2016 Regulation
  7. Sections 44(1), 47(1–3) and (5), 48(1) and 49(2) of the 1998 Act
  8. Clause 42 of the 2011 WHS Regulation
  9. Section 63 of the 1998 Act and clause 40 of the 2016 Regulation
  10. Sections 44(1) and (2) of the 1998 Act
  11. Section 38 of the 2011 WHS Act
  12. Section 14 of the Work Health and Safety (Mines and Petroleum Sites) Act 2013
  13. Section 264(2) and (3) of the 1998 Act and section 84 of the 1987 Act
  14. Section 69(1)(c) of the 1998 Act
  15. Sections 46(1) and 42 of the 1998 Act
  16. Sections 41A and 49 of the 1998 Act and section 32A of the 1987 Act
  17. Sections 241(1), 247 and 248 of the 1987 Act
  18. Section 243 of the 1998 Act, Privacy Act 1988 (Cwlth), Australian Privacy Principles and Health Records and Information Privacy Act 2002 (NSW)
  19. Section 52(2)(b) of the 1998 Act

Category 2 employers

Category 2 employers are any employers that are not Category 1 employers.

Return to work program
A summary of the system the employer will use to manage workers with work related injuries or illnesses.

All employers must have a RTW program in place within 12 months of becoming a Category 2 employer.1

Establishing a RTW program doesn’t need to be complicated, but it takes commitment from the employer and their workers to do things right.

Employers must consult with their workers and any industrial union that represents them when developing and reviewing their program.2

For Category 2 employers, implementing a successful RTW program involves three main activities:

  1. Appoint the person responsible for recovery at work
  2. Develop a return to work program
  3. Implement the return to work program

1. Appoint the person responsible for recovery at work

Category 2 employers do not need to appoint a RTW coordinator, but they should appoint someone to manage any workers compensation and recovery at work activities that arise. This may be an existing employee or a RTW coordinator who is engaged through a work arrangement or contract.

Category 2 employers may also set up a shared arrangement with other employers. In such an arrangement, an employer association, a union, or a group of employers in the same business or location share a RTW coordinator.

Employers must pay the cost of engaging or sharing a RTW coordinator. It is not a claims cost.

Employers that choose engaged or shared arrangements must ensure:

  • the appointed person has relevant training, skills and experience
  • they provide reasonable access to workers and the workplace
  • the arrangement will not disadvantage workers
  • they consult the workforce before proceeding
  • there is no perceived or actual conflict of interest for the appointed person
  • the other employers in a shared arrangement are in the same business or location
  • the RTW program details the arrangements, including the person’s name, qualifications and experience
  • the suitability of the arrangement is reviewed every two years as part of the RTW program review.
Conflict of interest
A situation where a person’s official duties conflict with their private wishes or needs, which may prevent them from fulfilling those duties impartially.

2. Develop a return to work program

Category 2 employers can meet their legal obligations by adopting or customising the standard return to work program for Category 2 employers (see Appendix) for their workplace.

This RTW program outlines general procedures for handling work related injuries and illnesses, and represents an employer’s commitment to the health, safety and recovery of workers following a work related injury or illness.3

Category 2 employers can also develop their own RTW program, using the standard RTW program as a guide.

Employers must consult their workers (and any union that represents them) when developing their RTW program. They should ensure the communication needs of all workers are considered so everyone is able to participate equally. This includes workers who do not speak English and those with a disability.

Consultation can be facilitated through health and safety committees or their representatives, unions or other agreed means.

3. Implement the return to work program

When Category 2 employers implement their RTW program, they must inform workers of their rights, obligations and the procedures for workplace rehabilitation and recovery at work.

Employers must make copies of the RTW program available to their workers, and provide a copy to any worker who requests it or has a workers compensation claim. If these arrangements are in place, Category 2 employers are not required to display their RTW program.4

Employers should continually review the RTW program, in consultation with the relevant parties, to ensure it is effective. The RTW program should specify review dates that suit workplace circumstances.

Employers must review their RTW programs at least every two years.

Section references

  1. Clause 11(2) of the 2016 Regulation
  2. Section 52(2) of the 1998 Act
  3. Clause 13(2) of the 2016 Regulation and section 52(2) of the 1998 Act
  4. Clause 18 of the 2016 Regulation