A work-related injury is defined in s 6 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and has the same broad definition as the State legislation. If a work-related injury or illness has kept an employee away from work for 28 days or more, the employee will be referred to a case manager to assist in the rehabilitation process. There is also a specific compensation scheme for Asbestos related claims.

A case manager from the employer will consult with the employee, and also the employee's employer, manager, doctor, union representative and anyone else appropriate in order to help the employee return to work as soon as possible [Safety, Rehabilitation and Compensation Act 1988 (Cth) s 36]. The employee will return to their former position or, if that is not possible, to a modified or different job. An approved rehabilitation provider may also be contacted to assist [see Safety, Rehabilitation and Compensation Act 1988 (Cth) Part 3 Division 2].

Formal Review

An employee who disagrees with a case manager's decision may seek an appeal by asking Comcare for a Formal Review [Safety, Rehabilitation and Compensation Act 1988 (Cth) s 38]. If still dissatisfied, an appeal can be lodged at the Administrative Review Tribunal (ART) (formerly the Administrative Appeals Tribunal or AAT).

Review by the Administrative Review Tribunal

A person seeking a review by the ART must do so within 60 days after receiving notice of the Comcare decision. An application to extend the time to lodge an application can be made to the Tribunal, however it is not a guarantee that an extension of time will be granted. There is no application fee to apply for a review of a Comcare decision. An application for review can be made online, by email, post or fax. There is no requirement to be legally represented at the ART, however the other party may be represented. Another professional person may represent a party, or even a family member or friend. If a party does appoint a representative, the ART must be provided with their details. For more information on appearing in the ART, please visit the ART workers compensation webpage.

If the matter proceeds to a hearing, the Tribunal may affirm, vary, or set aside the decision, or send back the decision to a Comcare review officer to make a new decision.

For information on the jurisdiction of the ART, see Commonwealth Administrative Appeals.

Legal Costs

The power of the ART to award costs in an ART Comcare matter is set out in section 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). In certain circumstances, the ART may order that a party to a proceeding pay the costs incurred by another party. The legislation states that if the ART sets aside a reviewable decision, and remits the case back to the decision-maker for redetermination, the ART must order the decision-maker to pay the costs a worker has incurred (although certain exceptions apply, for example where certain processes have not been followed by a worker).

Appealing from a decision of the ART

The Administrative Review Tribunal Act 2024 (Cth) provides that a party to a proceeding before the ART may appeal to the Federal Court of Australia on a question of law from any decision of the ART in that proceeding.

Applicants considering a Federal Court appeal of an ART decision should seek specialised legal advice, as significant legal costs may apply. A party who loses an appeal from a decision of the ART will usually be ordered to pay the other party's legal costs.

Visit the Federal Court of Australia's website for further information.