Common Law Settlement Agreement - Memorandum

Section 433(3) of the Workers Compensation and Injury Management Act 2023 (WA) says that if a worker's action for damages is settled by agreement, other than by acceptance of an offer to consent to judgment or an offer of compromise, the employer or third party who made the agreement must file a memorandum of the terms of settlement with the Director in the approved form within 3 months after the worker signs the agreement. WorkCover WA's approval instrument under s 496 says the approved form is the settlement agreement itself, or, if that is not filed, this memorandum (CL3, effective 1 July 2024). Failing to file does not affect the validity of the settlement (s 433(4)). A settled action is "successful", so the worker cannot then start or continue workers compensation proceedings for the same injury (s 433(1) and (2)).

When you need it

• You are the employer or third party (or acting for one) and a worker's common law damages claim for a workplace injury has settled by agreement.
• You are not giving the Director a copy of the settlement agreement itself. The form's note says the memorandum is only required if a copy of the settlement is not given to the Director.
• The settlement was not by accepting an offer to consent to judgment or an offer of compromise, which s 433(3) excludes.

1. 1

   Parties

   Enter the date of the agreement and the names of the worker, the employer or employers, and any third party or parties.

2. 2

   Election registration number

   Enter the registration number of the worker's election to retain the right to seek damages. A worker cannot sue their employer for damages unless that election has been registered by the Director, except in the terminal disease cases in s 422 (s 421(1)).

3. 3

   Settlement

   Enter the date of settlement, the amount of the settlement and the terms of settlement.

4. 4

   Signatures

   The worker (or their representative) and the employer (or their representative) each sign, print their name and date the form.

• File the memorandum, or a copy of the settlement agreement, with the Director of WorkCover WA within 3 months after the date the worker signs the settlement agreement (s 433(3)).
• The duty to file sits with the employer or third party who made the agreement, not the worker (s 433(3)).
• WorkCover WA's published material does not set out a lodgement channel for this form. Contact WorkCover WA (Advice and Assistance 1300 794 744) if you are unsure how to file it.

• Check the date the worker signed the agreement. The 3-month clock runs from then, not from payment or discontinuance.
• Use the current version. The approval instrument registers the form as CL3 - v1, effective from 1 July 2024, under the 2023 Act.
• Late filing does not undo the settlement (s 433(4)), but it is still a statutory obligation.