Employment and Workplace Relations Legislation Amendment (Welfare to Work and Vocational Rehabilitation Services) Act 2007

The Employment and Workplace Relations Legislation Amendment (Welfare to Work and Vocational Rehabilitation Services) Act 2007 is an amending Act. Its job is to change existing Commonwealth legislation rather than set up a completely separate operating framework.

The Act amends three laws:

1. the Disability Services Act 1986
2. the Social Security Act 1991
3. the Social Security (Administration) Act 1999

For businesses, the most operationally important amendments are in the Disability Services Act 1986. Those changes deal with who can provide rehabilitation programs under Commonwealth arrangements, what certification is needed, who may exercise delegated powers, and who bears the cost of rehabilitation programs.

The amendments to the Social Security Act 1991 and the Social Security (Administration) Act 1999 are more technical. They adjust wording and operation around payment periods, eligibility-related provisions, notice of indexed increases, and recovery of certain overpayments. These changes are still relevant if your organisation works in welfare-linked services, but they are not the same kind of direct provider compliance rules seen in the Disability Services Act amendments.

You are more likely to be in scope if your organisation provides or helps deliver rehabilitation programs for people in the target group under the Disability Services Act 1986. That can include vocational rehabilitation providers, disability service organisations, contractors engaged by the Commonwealth, and businesses supplying related services such as training, therapy, transport, support services, aids, equipment or workplace modifications.

You should also pay attention if your business contracts with the Department to perform services, because the amended definition of officer includes a person who performs services on behalf of the Department under a contract with the Commonwealth, and an employee of that person.

The social security amendments are more likely to matter to organisations that administer, advise on, or closely interact with social security payment arrangements. They may also matter where your clients or program participants are moving between disability support pension, parenting payment, mobility allowance or other welfare-linked arrangements affected by the amended provisions.

Many ordinary employers will not be directly regulated by this Act unless they are participating in these Commonwealth service arrangements or operating in a welfare-linked service environment.

The Disability Services Act 1986 amendments are the core practical part of this Act for service providers.

First, the Act inserts a definition of Commonwealth employee. It includes an APS employee and an employee of a body established for a public purpose by or under a Commonwealth law. It also replaces the definition of officer so that officer means a Commonwealth employee, a person performing services on behalf of the Department under a contract with the Commonwealth, or an employee of that contracted person.

Second, the Act changes the certification rule for rehabilitation program providers. The Secretary must not take measures, or enter into arrangements, under subsection 20(1) for the provision of a rehabilitation program for persons in the target group unless the provider holds a current certificate of compliance for rehabilitation programs, or the Secretary is satisfied that exceptional circumstances relating to one or more persons in the target group justify proceeding without that certificate.

There is also a separate short-term pathway. Despite the general rule, the Secretary may enter into an arrangement with a provider that does not hold a current certificate of compliance if the arrangement is for less than 12 months, or the Secretary is satisfied the provider is likely to hold the certificate at the end of the 12 month period after the arrangement starts.

Third, the Act replaces section 20 and makes clear the Secretary may take measures or enter arrangements to provide rehabilitation programs and follow-up programs considered necessary or desirable. The legislation gives examples of what may be provided or arranged, including employment and vocational training, educational courses, mobility and independent living training, diagnostic and assessment services, occupational therapy, physiotherapy, speech therapy, counselling, social work services, accommodation, transportation, personal support services, prostheses and aids, home and workplace modifications, vehicle and equipment modifications, maintenance and repair, books, tools of trade, and other goods and services the Secretary considers necessary or desirable.

For businesses, this means the Act is not limited to a narrow clinical rehabilitation model. It can extend to a broad range of practical supports and supplies connected with a rehabilitation program.

The main trigger point is involvement in a rehabilitation program for persons in the target group under the Disability Services Act 1986. If your organisation wants the Secretary to enter into arrangements with it for those programs, certification becomes a central issue.

Another trigger point is acting under a delegation. The amended section 34 allows the Secretary to delegate powers under Part III to an officer, and other powers under the Act to an APS employee in the Department, except for the power to give certain approvals. A delegate must comply with any directions of the Secretary. If your business is involved in service delivery under Commonwealth arrangements, you should understand whether your staff are simply performing contracted services or whether any delegated statutory function is in play.

The Act also changes cost allocation. Subject to the Act, the Commonwealth bears the cost of and incidental to a rehabilitation program provided for a pensioner or beneficiary. For a person who is not a pensioner or beneficiary, the cost, as determined by the Secretary, is to be borne by the person. This matters for invoicing, funding assumptions, and contract drafting.

There is also a specific amendment to section 21A. Paragraph 21A(1)(a) does not apply to the provision of a rehabilitation program to a person if the person is required to undertake a specified activity under the Social Security Act 1991 and that activity is, or includes, the rehabilitation program. This amendment applies both to programs already being provided at commencement of that item and to programs commencing on or after that commencement.

The Act includes transitional and saving rules that matter if your organisation had existing arrangements or determinations in place when the amendments started.

For rehabilitation programs affected by the section 21A amendment, the application provision says the change applies to a rehabilitation program already being provided at the commencement of that item, as well as one that starts on or after commencement. That means the amendment was not limited to future-only programs.

For cost determinations under the Disability Services Act 1986, the Act preserves certain existing settings. A determination made under the old subsection 22(2) before commencement, and still in force immediately before commencement, continues in force after commencement as if the repeal had not occurred. The same is true for a direction given before commencement under subsection 22(3) in relation to old subsection 22(2), if it was still in force immediately before commencement.

There is also a transitional rule for guidelines formulated for Part III of the Disability Services Act 1986 between Royal Assent and 1 July 2007. The Act says subsections 5(2), (3) and (4) of that Act do not apply to those guidelines if they relate to Part III as amended and were formulated in that period.

In practical terms, businesses should not assume every pre-existing determination, direction or program arrangement was wiped away on commencement. Some earlier settings were expressly preserved.

The amendments to the Social Security Act 1991 are mainly technical and targeted. They do not read like a broad new compliance code for businesses. Instead, they adjust specific provisions dealing with qualification wording, payment periods, and overpayment recovery.

Some amendments refine provisions connected with disability support pension and parenting payment transitions by changing wording such as references to the first decision about a person's capacity to work made on or after 1 July 2006, and by clarifying the relevant day for qualification changes.

Other amendments replace references to pension period with instalment period in section 1187 and repeal some subparagraphs and a subsection. There are also changes to section 1188C dealing with how certain income is treated and table entries for particular payment situations.

One practical amendment for recovery is the insertion into section 1228 of a rule that if an amount was paid under the Commonwealth scheme known as Financial Case Management to, or for the benefit of, a person, and it should not have been paid, and the person is receiving a social security payment that is payable to them, the amount is an overpayment recoverable by the Commonwealth by means of deductions. A related amendment adds that overpayment category into the deductions provision in section 1231.

There is also an application rule stating that these Financial Case Management overpayment amendments apply to payments under that scheme made on or after commencement, and to social security payments made on or after commencement.

If your organisation supports clients in welfare-linked programs, these amendments are worth checking closely, but they are still best understood as technical changes to the social security framework rather than direct provider certification rules.

The amendment to the Social Security (Administration) Act 1999 is narrow. It adds subsection 109(7), which deals with notice where the Secretary makes a decision constituted by a determination under section 78 to increase the rate at which a social security payment is being, or has been, paid because an amount has been indexed or adjusted under Part 3.16 of the Social Security Act 1991.

In that situation, each affected person is taken to have been given notice of the determination and the increased rate, and the notice is taken to have been given on the day the amount was indexed or adjusted.

The application provision says this amendment applies to certain review situations occurring on or after commencement, including applications to the Secretary for review under section 129 and Secretary-initiated reviews under section 126.

For most businesses, this is not a day-to-day operational rule unless you work directly with social security review or payment administration issues. It is still useful context if your organisation helps clients understand payment changes or review rights.

The Act received Royal Assent on 15 April 2007. Commencement was split.

Sections 1 to 3 and Schedule 1 items 6 and 7 commenced on Royal Assent, being 15 April 2007.

Schedule 1 items 1 to 5 and items 8 to 16 commenced on 1 July 2007.

Schedule 1 items 17 to 54 commenced on Royal Assent, being 15 April 2007.

The Act is listed as in force. Because this is an amending Act, businesses should also read the current consolidated versions of the amended legislation if they need to know the law as it operates now in full context.

Before acting on this page, check which of the three amended Acts is relevant to your situation. The provider certification and rehabilitation program rules come from the Disability Services Act 1986 amendments. The payment period, eligibility wording and Financial Case Management overpayment rules come from the Social Security Act 1991 amendments. The deemed notice rule for indexed increases comes from the Social Security (Administration) Act 1999 amendment.

You should also check whether you are dealing with a current certificate of compliance requirement, an exceptional circumstances situation, or a short-term arrangement under the Disability Services Act 1986. Those are different pathways and should not be treated as interchangeable.

If your organisation had pre-existing determinations, directions or rehabilitation arrangements around commencement, review whether a saving or application provision preserved them.

Finally, because this Act amends other legislation, read the current text of the amended provisions before making operational decisions, especially if you are contracting with the Commonwealth or billing for rehabilitation services.