Edited version of your written advice

Authorisation Number: 1051403644412

Date of advice: 23 July 2018

Ruling

Subject: Fringe benefits tax: exempt benefits

Question 1

Will nicotine replacement therapy be an exempt benefit as ‘work-related preventative health care’ of the employee under section 58M of the Fringe Benefits Tax Assessment Act 1986?

Answer

No

Question 2

Will nicotine replacement therapy be an exempt benefit under section 58K of the Fringe Benefits Tax Assessment Act 1986?

Answer

No

This ruling applies for the following periods:

FBT year ending 31 March 20XX

FBT year ending 31 March 20XX

FBT year ending 31 March 20XX

FBT year ending 31 March 20XX

The scheme commences on:

In the FBT year ending 31 March 20XX

Relevant facts and circumstances

You plan to offer Nicotine Replacement Therapy (NRT) in the form of patches, gum or sprays to your employees who smoke.

You consider that by providing NRT to your employees who smoke you will improve the health and productivity of staff and promote a healthier workplace.

When providing the NRT, you would keep written evidence that a medical practitioner had prescribed/advised the employee to undergo NRT.

Relevant legislative provisions

Fringe Benefits Tax Assessment Act 1986 section 20

Fringe Benefits Tax Assessment Act 1986 section 40

Fringe Benefits Tax Assessment Act 1986 section 58K

Fringe Benefits Tax Assessment Act 1986 section 58M

Fringe Benefits Tax Assessment Act 1986 section 58P

Fringe Benefits Tax Assessment Act 1986 subsection 136(1)

Reasons for decision

Question 1

Summary

The NRT will not be provided wholly or principally in order to prevent your employees from suffering ‘work-related trauma’ and therefore the provision of the NRT is not ‘work-related preventative health care’ The provision of the NRT will not be exempt as ‘work-related preventative health care’. As the benefits will be provided in respect of your employee’s employment they will be fringe benefits if they are not exempt.

The minor benefits exemption may apply to exempt the benefits however this will depend on the arrangement and will need to be considered on a case by case basis.

Detailed reasoning

You plan to offer NRT in the form of patches, gum or sprays to your employees who smoke.

When you provide your employees with the NRT you will be providing them with a benefit as defined in subsection 136(1) of the FBTAA.

Subsection 136(1) of the FBTAA provides the following definition of a ‘fringe benefit’:

fringe benefit, in relation to an employee, in relation to the employer or the employee, in relation to a year of tax, means a benefit:

(a) provided at any time during the year of tax; or

(b) provided in respect of the year of tax;

being a benefit provided to the employee or to an associate of the employee by:

(c) the employer; or

(d) …

…

in respect of the employment of the employee, but does not include:

(f) …

(g) a benefit that is an exempt benefit in relation to the year of tax; or

(h) …

As you will be providing the NRT to your employees in respect of their employment, the NRT will be a benefit that will be a fringe benefit as long as it is not an exempt benefit.

The FBTAA categorises benefits into 13 categories. Different exemptions can apply to the different categories of benefits and each category has its own valuation rules.

If you purchase and provide the NRT to your employee, you will be providing your employee with a property benefit in accordance with section 40 of the FBTAA.

If your employee purchases the NRT themselves and you then reimburse the whole or part of the purchase amount, the reimbursement would be an expense payment benefit in accordance with section 20 of the FBTAA. Similarly, if your employee was to enter into an arrangement with a provider of NRT, causing the employee to have an obligation to pay the provider for the NRT and you then pay the provider on behalf of your employee, you will be providing your employee with an expense payment benefit.

As discussed above, you would be providing the benefits to your employees in respect of their employment and as such, the benefits will be fringe benefits in accordance with the definition of fringe benefit contained in subsection 136(1) of the FBTAA, if they are not exempt benefits.

Work-related preventative health care exemption

Section 58M of the FBTAA exempts expense payment, property and residual benefits where the benefits consist of or are associated with work-related preventative health care of the employee.

Section 58M states:

SECTION 58M EXEMPT BENEFITS – WORK-RELATED MEDICAL EXAMINATIONS, WORK-RELATED MEDICAL SCREENING, WORK-RELATED PREVENTATIVE HEALTH CARE, WORK-RELATED COUNSELLING, MIGRANT LANGUAGE TRAINING

58M(1) [Exemptions] Where any of the following benefits is provided in respect of the employment of an employee:

(a) an expense payment benefit where the recipients expenditure is in respect of:

(i) …

…

(iii) work-related preventative health care of the employee;

(v) …

(b) a property benefit where the recipients property is required solely for the purposes of:

(i) …

…

(iii) work-related preventative health care of the employee;

(v) …

(c) a residual benefit where the recipients benefit consists of the provision of:

(i) …

…

(iii) work-related preventative health care of the employee;

(v) …

the benefit is an exempt benefit.

58M(2) [Associated benefits] Where:

(a) a car benefit, an expense payment benefit, a property benefit or a residual benefit is provided in, or in respect of, a year of tax in respect of the employment of an employee of an employer;

(b) the benefit is associated with:

(i) …

…

(iii) work-related preventative health care of the employee;

(v) …

(c) In the case of an expense payment benefit:

(i) the benefit is not constituted by the reimbursement of the recipient, in whole or in part, in respect of an amount of a Division 28 car expense incurred by the recipient in relation to a car owned by, or leased to, the recipient, being a reimbursement calculated by reference to the distance travelled by the car; and

(ii) documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date;

the benefit is an exempt benefit in relation to the year of tax.

That is, an expense payment, property or residual benefit will be exempt under section 58M of the FBTAA where the benefit is in respect of, is required solely for the purposes of, or consists of, ‘work-related preventative health care’ of the employee.

‘Work-related preventative health care’

The meaning of ‘work-related preventative health care’ for the purposes of section 58M of the FBTAA is defined in subsection 136(1) of the FBTAA as follows:

work-related preventative health care, in relation to an employee of an employer, means any form of care provided by, or on behalf of, a legally qualified medical practitioner, nurse, dentist or optometrist wholly or principally in order to prevent the employee suffering from work-related trauma, but does not include a form of care that is not made available generally to all employees of the employer:

(a) who are likely to be at risk of suffering from similar work-related trauma;

(b) who perform the duties of their employment at or near the place where the employee performs the duties of his or her employment; and

(c) whose duties of employment are similar to those of the employee.

ATOID 2002/963 Fringe Benefits Tax Fringe Benefits Tax: Exempt benefits – work-related preventative health care (ATOID 2002/963), provides guidance on the criteria that must be satisfied in order for the work-related preventative health care exemption contained in section 58M of the FBTAA to apply. ATO ID 2002/963 considers abattoir employees, who because of their duties of employment are at risk of contracting Q fever, a disease carried by cattle which is communicable to humans. ATO ID 2002/963 concluded that a benefit relating to the vaccination of an abattoir employee against Q fever is ‘work-related preventative health care’ and is exempt under section 58M of the FBTAA. ATO ID 2002/963 states:

…The definition of ‘WRPHC’ [work-related preventative health care] in subsection 136(1) of the FBTAA requires that the form of care needs to be for the purpose of preventing the employee suffering from ‘work-related trauma’.

‘Work-related trauma’ is defined in subsection 136(1) of the FBTAA to include the contraction of a disease that is related to the employee’s employment. An employee contracting Q fever as a result of his or her work duties would be one form of ‘work-related trauma’.

The definition of ‘WRPHC’ in subsection 136(1) of the FBTAA requires that the care provided to the employee is made available generally to all employees of the employer:

(a) Who, because of their work duties, are likely to be at risk of suffering from similar work related trauma;

(b) who work at or near the location where the employee works; and

(c) whose duties are similar to those of the employee.

If care as required by (a) above, is made available to all employees of the employer who because of their work duties are likely to be at risk of contracting Q fever, then (b) and (c) above would always be satisfied. The employer makes vaccinations available to all employees who, because of their work duties, are at risk of contracting Q fever.

The definition of ‘WRPHC’ in subsection 136(1) of the FBTAA also requires that the care be provided by, or on behalf of a legally qualified medical practitioner (LQMP) or nurse.

The provision of benefits relating to vaccination against Q fever is for ‘WRPHC’ as defined in subsection 136(1) of the FBTAA. These benefits include the provision of a LQMP, a nurse, the testing procedure and the vaccine itself. These benefits are exempt from FBT under section 58M of the FBTAA.

Is the provision of NRT ‘work-related preventative health care’?

According to the subsection 136(1) definition, the provision of the NRT will be ‘work-related preventative health care’ if:

● care is provided by or on behalf of a legally qualified medical practitioner, nurse, dentist or optometrist;

● the care is provided wholly or principally in order to prevent the employee from suffering work-related trauma; and

● the care is made available to all employees:

● at risk of suffering similar work-related trauma,

● who perform the duties of their employment at or near the place where the employee performs the duties of their employment, and

● whose duties of employment are similar to those of the employee.

Is the care provided wholly or principally in order to prevent the employee from suffering work-related trauma?

As discussed above, in order for the provision of NRT to be considered to be ‘work-related preventative health care’ the care must be provided wholly or principally in order to prevent the employee from suffering ‘work-related trauma’.

The meaning of the term ‘work-related trauma’ used in the definition of ‘work-related preventative health care’ is defined in subsection 136(1) of the FBTAA which states:

work-related trauma, in relation to an employee, means:

(a) the injury of the employee (including the aggravation, acceleration or recurrence of an injury or the employee);

(b) the contraction, aggravation, acceleration or recurrence of a disease of the employee;

(c) the loss or destruction of, or damage to:

(i) an artificial limb or other artificial substitute;

(ii) a medical, surgical or similar aid or appliance used by the employee; or

(iii) clothing worn by the employee; or

(d) the coming into existence, the aggravation, acceleration or recurrence of any other physiological or psychological condition in relation to the employee that is or may be harmful or disadvantageous to, or result in harm or disadvantage to, the employee;

that is related to any employment of the employee.

As seen from the definition above, one requirement that must be met for the definition ‘work-related trauma’ to be satisfied is that the trauma described in paragraphs 136(1)(a) to 136(1)(d) of the definition (the injury or contraction, aggravation, acceleration or recurrence of a disease for example), must be related to the employment of the employee.

The minutes of the NTLG FBT Sub-committee meeting of 21 August 2003 discuss whether the provision of nicotine patches, a form of NRT, to employees will be exempt as work-related preventative health care in accordance with section 58M of the FBAA. In advising that the patches will not be work-related preventative health care the ATO concluded that employees who smoke are not suffering from work-related trauma as smoking is a personal decision and generally not caused by the work environment. If the health care provided to the employee is not provided wholly or principally in order to prevent the employee from suffering work-related trauma, the care will not be exempt under section 58M as work-related preventative health care. The NTLG FBT sub-committee minutes summarise:

19 Work-related trauma

…

Example 2

An employer subsidises the cost of nicotine patches to employees to encourage them to stop smoking. An employer allows employees to smoke in certain designated outdoor areas, but would prefer a total smoking ban and is in fact moving towards a total ban of smoking on any employer location. The employer wishes to encourage employees to stop smoking so that the organisation as a whole can move towards a totally smoke-free work environment and minimise the risk of exposing its non-smoking employees to passive smoking when passing near designated smoking areas or building entrances.

Issue:

Is the subsidising of nicotine patches an exempt property fringe benefit because it is work related preventative health care pursuant to section 58M(1)(b) of the FBTAA as the risk of being exposed to cigarette smoke is known and because non-smoking employees may be exposed to work place cigarette smoke because of their work duties?

…

Tax Office response

Benefits that may be exempt because of section 58M of the FBTAA may be either expense payment, property or residual benefits but the particular requirements that are needed to be satisfied differ depending on the category of work related health or counselling that is being provided. As such, the particular provisions must be closely considered in situations where an employer is seeking to apply an exemption contained in section 58M.

The FBT: A Guide for Employers, at Chapter 18.35, provides some general guidance in relation to section 58M. This is as follows, noting references to the FBTAA have been added for this agenda item;

Several categories of work-related health and counselling benefits are exempt benefits.

…

Work-related preventative health care.

This is any form of care provided by a medical practitioner, nurse, dentist or optometrist for the purpose of preventing the employee from suffering from an injury or illness relating to the employee’s employment. It is a condition of exemption that the care is provided as part of a screening program that applies generally to employees with similar work-related risks. The provision of drugs, vaccines or other medical preparations in connection with the preventative health care is also exempt (refer sub-section 136(1) ‘work-related preventative health care’).

…

As noted in the submission by the CPAA, section 136(1) of the FBTAA also contains a definition of ‘work-related trauma’ which means, in relation to an employee;

(a) the injury of the employee (including the aggravation, acceleration, or recurrence of an injury of the employee)

(b) the contraction, aggravation, acceleration, or recurrence of a disease of an employee

(c) the loss or destruction of, or damage to:

(i) an artificial, surgical or similar aid or appliance used by the employee, or

(ii) clothing worn by the employee, or

(d) the coming into existence, the aggravation, acceleration, or recurrence of any physiological condition in relation to the employee that is harmful or disadvantageous to, or result in harm or disadvantage to, the employee

that is related to any employment of the employee.

As stated by the CPAA, the definition of ‘work-related trauma’ must be considered when looking to apply the exemption for either ‘work-related medical screening’ or ‘work-related preventative health care’. Further, the relevant examination, test or care, as the case may be, must be provided wholly or principally to ascertain whether, or prevent, an employee suffering from such a work-related trauma.

In ATOID 2002/963, as all the employees could be exposed to Q fever, it was accepted that the benefits relating to vaccination were in relation to ‘work-related preventative health care’ and therefore exempt benefits. This was after consideration of all the requirements of the relevant provisions.

The ATO noted in relation to both ‘work-related medical screening’ and ‘work-related preventative health care’, the benefit must be made available generally to employees of the employer with similar work-related risks to the employee (refer definitions of the ‘work-related’ terms in section 136(1)).

…

In relation to example 2, the ATO noted that an employer subsidises the cost of nicotine patches to employees to encourage them to stop smoking.

Generally, a nicotine patch is used by a particular employee and is designed to assist that employee to stop smoking. The facts do not indicate that the employee is suffering from work-related trauma as smoking is a personal decision and is generally not caused by the work environment.

An exemption under section 58M(1)(b)(iii), ‘work-related preventative health care’, on the facts in the submission, would not be available.

As discussed in the NTLG FBT sub-committee minutes above, the facts provided in your circumstances do not indicate that your employees are suffering from ‘work-related trauma’ in accordance with the definition contained in subsection 136(1) of the FBTAA. Any injury or contraction, aggravation, acceleration or recurrence of a disease of the employee that the NRT would be intended to prevent the employee from suffering is not an injury or disease that is related to the employment of the employee, but is related to the employee’s personal decision to smoke.

As the NRT would not be provided wholly or principally in order to prevent the employee from suffering work-related trauma, the provision of the NRT is not ‘work-related preventative health care’ and the benefits will not be exempt as work-related preventative health care under section 58M of the FBTAA (subparagraphs 58M(1)(a)(iii), 58M(1)(b)(iii), 58M(1)(c)(iii)).

For your information - Minor benefits exemption

Section 58P of the FBTAA provides that a benefit is exempt if it is considered to be a minor benefit. Broadly speaking, the minor benefits exemption exempts benefits if the value of the benefit is less than $300 and it is considered unreasonable to treat the benefit as a fringe benefit according to the factors provided in paragraph 58P(1)(f) of the FBTAA.

The minor benefits exemption does not apply to exempt all benefits with a notional value of less than $300. Airline transport benefits and expense payment, property and residual benefits where, if the benefits were fringe benefits they would be in-house expense payment, in-house property and in-house residual fringe benefits cannot be exempt using the minor benefits exemption. The exemption also does not apply in relation to certain tax-exempt body entertainment benefits, the provision of meal entertainment depending on the valuation method elected or to benefits provided under a salary sacrifice arrangement.

Paragraph 58P(1)(f) of the FBTAA states that regard is to be had to various criteria in concluding if it would unreasonable to treat a minor benefit as an exempt benefit. The criteria which paragraph 58P (1)(f) of the FBTAA requires to be considered are:

● the infrequency and irregularity with which associated benefits, being identical or similar benefits, are provided;

● the sum of the notional taxable values of the benefit and any associated benefits which are identical or similar to the minor benefit in relation to the current year of tax or any other year of tax;

● the sum of the notional taxable values of any other associated benefits in relation to the current year of tax or any other year of tax;

● the practical difficulty in determining the notional taxable values of the benefit and any associated benefits; and

● the circumstances surrounding the provision of the benefit and any associated benefits.

Whether the benefit is a minor benefit must be determined on a case by case basis depending on the arrangement.

Guidance to assist you in determining whether a benefit is a minor benefit can be found in Taxation Ruling TR 2007/12 Fringe benefits tax: minor benefits (TR 2007/12). TR 2007/12 provides:

17. Paragraph 58P(1)(e) places a threshold of 'less than $300' on the notional taxable value of a minor benefit. This threshold test applies to each benefit provided to an individual employee, and/or each benefit provided to an associate of an employee, to which section 58P may apply. The threshold test is not an upper limit on the total value of minor benefits that any individual employee may receive.

18. The value of a minor benefit must relate to the 'current year of tax'. Where a benefit is provided over a period which covers two or more FBT years, only the benefit provided in the current year of tax is considered in determining the notional taxable value.

19. The words 'infrequency and irregularity' and 'identical or similar' are not defined in the FBTAA and therefore take on their ordinary meaning.

20. In having regard to the criteria contained in paragraph 58P(1)(f), the 'infrequency and irregularity' with which associated benefits have been or can reasonably be expected to be provided (subparagraph 58P(1)(f)(i)) is only one of the criteria that must be considered.

21. Even where identical or similar associated benefits have been provided infrequently and irregularly, it may nonetheless be concluded that it is reasonable to treat the minor benefit as a fringe benefit when consideration is given to the other specified criteria in paragraph 58P(1)(f).

22. In applying the 'infrequency and irregularity' criterion, it is not appropriate to stipulate the maximum number of times associated benefits that are identical or similar to a minor benefit, or benefits in connection with the minor benefit, can be provided before the criterion is not met. However, the more often and regularly those benefits are provided, the less likely it is that this criterion would be met.

Chapter 20 of Fringe benefits tax – a guide for employers (FBT guide for employers) provides some broad examples of the operation of the exemption:

Examples

It is common practice for employers to give employees gifts on special occasions, such as at Christmas time. A single gift to each employee of, say, a bottle of whisky or perfume would be an exempt benefit, where the value was less than $300. If the gift is provided at a Christmas party, the gift needs to be considered separately to the Christmas party when considering the minor benefits threshold.

Flowers given to employees on special occasions would be given on an irregular and infrequent basis - this could include flowers given to an employee on the birth of a child, for a birthday, or as a get well gift. These would be an exempt benefit where each individual benefit had a notional taxable value of less than $300 because, looking at the five factors, it would be unreasonable to treat the benefit as a fringe benefit.

By contrast, flowers given to an employee each fortnight would be given on a frequent and regular basis and would not be an exempt benefit, even where the value of each individual benefit is less than $300.

The occasional use of one of your vehicles by an employee for a special purpose, such as rubbish removal or for travel from home to work during a transport strike, would be an exempt benefit provided the employee in question doesn't have a general entitlement to use the vehicle for private purposes.

Depending on the facts and the arrangement, it is likely that a once-off benefit consisting of up to $300 worth of NRT provided as a property or expense payment benefit may be exempt as a minor benefit.

However, multiple expense payment or property benefits of NRT provided throughout the year, even where the total notional value of the benefits provided to a particular employee are less than $300 may not be exempt as minor benefits. This is something that would be determined on a case by case basis.

As discussed in paragraphs 195 – 197 of TR 2007/12, the five criteria contained in paragraph 58P(1)(f) of the FBTAA must all be considered when determining whether a benefit is a minor benefit and no single criteria will alone determine whether the exemption will apply. It is necessary to look to the nature of the benefit provided when considering the criteria and the weight given to each criterion will vary depending on the circumstances surrounding the provision of the benefit. Paragraphs 200 to 244 of TR 2007/12 provide guidance on each of the five criteria. Paragraph 245 of TR 2007/12 then provides general examples that would likely be considered minor benefits (subject to consideration of the five criteria):

Examples: general

245. Subject to the consideration of the five criteria discussed above, the following are examples of benefits where it could be concluded that it would be unreasonable to treat them as fringe benefits and accordingly they would likely be exempt benefits:

● a one-off welcome gift, for example a food hamper, provided to a new employee on commencement of employment;

● meals provided on an ad hoc basis to an employee a few times a year;

● tolls provided to an employee through an e-tag facility on an ad-hoc basis, which is not part of a SSA or in connection with a SSA;

● the occasional use of the employer's car for a special purpose;

● a short-term advance to help an employee pay unexpected debts;

● the recovery of overpaid salary by instalment arrangements;

● stationery that an employee is permitted to use for private purposes;

● the use of office staff to type essays or assignments; and

● permitting staff to have waste or left-over materials of a business, such as packing cases or fabric remnants.

Question 2

Summary

You would not be providing the NRT as health care in your own ‘in-house health care facility’ or by a member of the staff of your own ‘in-house health care facility’ and therefore the NRT will not be exempt under section 58K of the FBTAA.

Detailed reasoning

As discussed in question 1 above, when you provide your employees with NRT you will be providing them with a benefit as defined in subsection 136(1) of the FBTAA which will most likely be a property or expense payment benefit depending on the arrangement and will be a fringe benefit as long as it is not an exempt benefit.

In-house health care facilities exemption

Section 58K of the FBTAA exempts benefits that consist of the provision of health care that are provided in certain in-house health care facilities. Section 58K states:

SECTION 58K EXEMPT BENEFITS – IN-HOUSE HEALTH CARE FACILITIES

58K Where:

(a) a benefit consisting of the provision of health care is provided in respect of the employment of an employee of an employer; and

(b) the health care is provided:

(i) in an in-house health care facility of the employer; or

(ii) by a member of the staff of an in-house health care facility of the employer in the performance of his or her duties as such a member;

the benefit is an exempt benefit.

That is, in order for a benefit to be exempt under section 58K of the FBTAA:

● the benefit must consist of the provision of ‘health care’

● the provision of health care must be provided in respect of the employment of the employee

● the health care must be provided either in an ‘in-house health care facility’ of the employer or by a member of the staff of an ‘in-house health care facility’ of the employer in the performance of their duties as a staff member.

‘Health care’ is defined in subsection 136(1) of the FBTAA as:

health care means any examination, test or form of care (whether therapeutic, preventative or rehabilitative) that is related to the physiological health of a person and, without limiting the generality of the foregoing, includes:

(a) the supply, maintenance or repair of:

(i) an artificial limb or other artificial substitute; or

(ii) a medical, surgical or similar aid or appliance used by a person; and

(b) the supply of drugs or other property in connection with such an examination, test or form of care.

‘In-house health care facility’

As discussed above, in order for a benefit to be exempt under section 58K of the FBTAA the benefit must consist of the provision of health care provided either in an ‘in-house health care facility’ of the employer or by a member of the staff of an ‘in-house health care facility’ of the employer in the performance of their duties as a staff member.

The term ‘in-house health care facility’ is defined in subsection 136(1) as:

In relation to an employer, means a clinic, surgery, first-aid station or similar facility that is:

(a) operated wholly or principally for providing health care in respect of compensable work-related trauma suffered:

(i) in any case – by employees of the employer; or

(ii) if the employer is a company – by employees of the employer or by employees of a company that is related to the employer; and

(b) located:

(i) on premises of the employer or, if the employer is a company, of the employer or of a company that is related to the employer; or

(ii) at or adjacent to a place where employees of the employer or, if the employer is a company, of the employer or of a company that is related to the employer (other than members of the staff of the facility) perform the duties of their employment.

That is, a benefit will only be exempt where:

● the health care is provided in a clinic, surgery, first-aid station or similar facility that is located on premises of the employer (or a related company) or at or adjacent to, a site (e.g., a construction site) at which employees of the employer perform duties of their employment; and

● the clinic or other facility is operated wholly or principally for providing health care in respect of ‘compensable work-related trauma’ suffered by employees of the employer (or a related company).

Compensable work related trauma

Based on the information provided, you do not have a clinic, surgery, first-aid station or similar facility located on your premises (or a related company’s premises) or at or adjacent to, a site at which your employees perform the duties of their employment, from which health care can be provided to your employees.

Even if you were to have a clinic, surgery, first-aid station or similar facility that is located your premises (a related company’s premises) or at or adjacent to, a site at which your employees perform the duties of their employment, the definition of ‘in-house health care facility’ requires that the clinic or similar facility must be operated wholly or principally for the purpose of providing health care in respect of ‘compensable work-related trauma’ suffered by employees of the employer (or a related company).

Subsection 136(1) of the FBTAA defines ‘compensable work-related trauma’ to mean:

compensable work-related trauma means work-related trauma suffered by an employee where:

(a) if there is no Australian workers’ compensation law that applies to the employment of the employee – if any Australian workers’ compensation law had applies to the employment of the employee, that law would have provided for compensation or other benefits for or in respect of the trauma; or

(b) in all cases – there is a workers’ compensation law that:

(i) applies to the employment of the employee; and

(ii) provides for compensation or other benefits for or in respect of the trauma.

Work-related trauma’ is also defined in subsection 136(1) of the FBTAA to mean:

(a) the injury of the employee (including the aggravation, acceleration or recurrence of an injury of the employee);

(b) the contraction, aggravation, acceleration or recurrence of a disease of the employee;

(c) the loss or destruction of, or damage to:

(i) an artificial limb or other artificial substitute;

(ii) a medical, surgical or similar aid or appliance used by the employee; or

(iii) clothing worn by the employee; or

(d) the coming into existence, the aggravation, acceleration or recurrence of any other physiological or psychological condition in relation to the employee that is or may be harmful or disadvantageous to, or result in harm or disadvantage to, the employee;

that is related to any employment of the employee.

As discussed above, you have not provided any information to suggest that you have a clinic, surgery, first-aid station or similar facility located on your premises (a related company’s premises) or at or adjacent to, a site at which your employees perform the duties of their employment. Even if you did however, those premises would need be operated wholly or principally for the purpose of providing health care to your employees (not the general public or a section of the general public) and the health care provided to your employees at such a facility would need to be care in respect of ‘compensable work-related trauma’ where both the definitions of ‘work-related trauma’ and ‘compensable work-related trauma’ would need to be met. As you would not be providing health care in your own ‘in-house health care facility’ or by a member of the staff of your own ‘in-house health care facility’, the NRT will not be exempt under section 58K of the FBTAA.