Division 2Division 2 Weekly compensation by way of income support
In this Division and in Schedule 3:base rate of pay—see section 44G.
base rate of pay exclusion—see section 44G.
current weekly earnings—see section 44I.
current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
fair work instrument means:
(a) a fair work instrument (other than an FWA order) within the meaning of the Fair Work Act 2009 of the Commonwealth, or(b) a transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth.first entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker.
maximum weekly compensation amount means the maximum weekly compensation amount under section 34.
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.
non-pecuniary benefit—see section 44F.
ordinary earnings—see section 44E.
ordinary hours of work—see section 44H.
pre-injury average weekly earnings—see section 44C.
relevant period—see section 44D.
second entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker.
seriously injured worker means a worker whose injury has resulted in permanent impairment and:
(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or(b) the degree of permanent impairment has not been assessed because an approved medical specialist has declined to make an assessment until satisfied that the impairment is permanent and the degree of permanent impairment is fully ascertainable, or(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and(ii) the worker’s age, education, skills and work experience, and(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and(v) such other matters as the WorkCover Guidelines may specify, and(b) regardless of:(i) whether the work or the employment is available, and(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and(iii) the nature of the worker’s pre-injury employment, and(iv) the worker’s place of residence.work capacity assessment means a work capacity assessment under section 44A.
work capacity decision—see section 43.
Subdivision 2 Entitlement to weekly compensation
33 Weekly compensation during total or partial incapacity for work
(cf former s 9 (1))
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.Note. Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.
34 Maximum weekly compensation amount
(1) The maximum weekly compensation amount is $1,838.70.(2) If the amount mentioned in subsection (1):(a) is adjusted by the operation of Division 6, or(b) is adjusted by an amendment of this section,the maximum weekly compensation amount applicable to a worker injured before the date on which the adjustment takes effect is, for any period of incapacity for work occurring on and after that date, to be determined by reference to that amount as so adjusted.(3) Such an adjustment does not apply to the extent that the liability to make weekly payments of compensation in respect of any such period of incapacity has been commuted.
35 Factors to determine rate of weekly payments
(1) For the purposes of the provisions of this Subdivision used to determine the rate of weekly payments payable to an injured worker in respect of a week:AWE means the worker’s pre-injury average weekly earnings.
D (or a deductible amount) means the sum of the value of each non-pecuniary benefit (if any) that is provided by the employer to a worker in respect of that week (whether or not received by the worker during the relevant period), being a non-pecuniary benefit provided by the employer for the benefit of the worker or a member of the family of the worker.
E means the amount to be taken into account as the worker’s earnings after the injury, calculated as whichever of the following is the greater amount:
(a) the amount the worker is able to earn in suitable employment,(b) the workers current weekly earnings.MAX means the maximum weekly compensation amount.
(2) If the determination of an amount for the purpose of determining the rate of weekly payments payable to an injured worker results in an amount that is less than zero, the amount is to be treated as zero.
36 Weekly payments in first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of:(a) (AWE × 95%) − D, or(b) MAX − D,whichever is the lesser.(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the rate of:(a) (AWE × 95%) − (E + D), or(b) MAX − (E + D),whichever is the lesser.
37 Weekly payments in second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of:(a) (AWE × 80%) − D, or(b) MAX − D,whichever is the lesser.(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the rate of:(a) (AWE × 95%) − (E + D), or(b) MAX − (E + D),whichever is the lesser.(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the rate of:(a) (AWE × 80%) − (E + D), or(b) MAX − (E + D),whichever is the lesser.
38 Special requirements for continuation of weekly payments after second entitlement period (after week 130)
(1) A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.(3) A worker who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if:(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.(4) An insurer must, for the purpose of assessing an injured worker’s entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted:(a) during the last 52 weeks of the second entitlement period, and(b) thereafter at least once every 2 years.Note. An insurer can conduct a work capacity assessment of a worker at any time. The WorkCover Guidelines can also require a work capacity assessment to be conducted.(5) An insurer is not to conduct a work capacity assessment of a seriously injured worker unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a seriously injured worker without conducting a work capacity assessment.(6) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of:(a) (AWE × 80%) − D, or(b) MAX − D,whichever is the lesser.(7) The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the rate of:(a) (AWE × 80%) − (E + D), or(b) MAX − (E + D),whichever is the lesser.(8) A worker’s entitlement to compensation under this section may be reassessed at any time.
39 Cessation of weekly payments after 5 years
(1) Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.(2) This section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.Note. For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.(3) For the purposes of this section, the degree of permanent impairment that results from an injury is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4).
40 Entitlement after second entitlement period not affected by certain circumstances
(1) A worker who receives weekly payments under section 38 does not cease to be entitled to weekly payments under that section by reason only that the worker occasionally, but not during more than 4 weeks in the first period of 12 consecutive weeks immediately after the worker first received weekly payments under that section, or in any subsequent consecutive period of 12 weeks:(a) has worked more hours during a week, or(b) has worked fewer hours during a week (even if the number of hours worked is less than 15), or(c) has received higher current weekly earnings, or(d) has received lower current weekly earnings (even if the earnings are less than $155 per week),than the hours worked, or the current weekly earnings received, at the time of making the application for payments under section 38.(2) A reference in subsection (1) to hours of work does not include hours of leave approved by the employer.
41 Compensation for incapacity after second entitlement period resulting from surgery
(1) An injured worker who suffers incapacity resulting from injury related surgery is entitled to weekly payments of compensation (special compensation) as provided by this section in respect of that incapacity when the incapacity occurs after the second entitlement period.(2) The special compensation provided for by this section is payable at the rate provided under section 37, as if the period of incapacity in respect of which the special compensation is payable occurred during (not after) the second entitlement period.(3) Special compensation is not payable in respect of any period of incapacity that occurs:(a) during the first 13 consecutive weeks after the end of the second entitlement period, or(b) more than 13 weeks after the surgery concerned, or(c) during any period in respect of which the worker is otherwise entitled to compensation after the second entitlement period (under section 38).(4) Surgery is injury related if it is surgery that the worker undergoes in the course of medical treatment provided to the worker as a result of an injury (the initial injury) received by the worker (being medical treatment for which the insurer has accepted liability under this Part).(5) The following requirements must be satisfied for a worker to be eligible for the special compensation provided for by this section:(a) the worker must have received weekly payments of compensation in respect of the initial injury and have had current work capacity prior to suffering the incapacity resulting from the injury related surgery,(b) the worker must have returned to work after the initial injury (whether in self-employment or other employment) for a period of not less than 15 hours per week and have been in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week.(6) This section does not limit section 52 (Termination of weekly payments on retiring age).
42 Application by worker to alter amount of weekly payments
(1) A worker who is receiving weekly payments of compensation may apply in writing to the insurer for an increase or reduction in the amount of the payments and must specify in the application the reasons for so applying and provide with the application any supporting evidence.(2) Within 28 days after receiving an application, the insurer must:(a) approve or reject the application, and(b) give the worker and the employer written notice of its decision, including, in the case of rejection, a statement of the reasons for the decision.
43 Work capacity decisions by insurers
(1) The following decisions of an insurer (referred to in this Division as work capacity decisions) are final and binding on the parties and not subject to appeal or review except review under section 44 or judicial review by the Supreme Court:(a) a decision about a worker’s current work capacity,(b) a decision about what constitutes suitable employment for a worker,(c) a decision about the amount an injured worker is able to earn in suitable employment,(d) a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings,(e) a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,(f) any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)–(e).(2) The following decisions are not work capacity decisions:(a) a decision to dispute liability for weekly payments of compensation,(b) a decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1998 Act.(3) The Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer.
44 Review of work capacity decisions
(1) An injured worker may refer a work capacity decision of an insurer for review:(a) by the insurer (an internal review) in accordance with the WorkCover Guidelines within 30 days after an application for internal review is made by the worker, or(b) by the Authority (as a merit review of the decision), but not until the dispute has been the subject of internal review by the insurer, or(c) to the Independent Review Officer (as a review only of the insurer’s procedures in making the work capacity decision and not of any judgment or discretion exercised by the insurer in making the decision), but not until the dispute has been the subject of internal review by the insurer and merit review by the Authority.(2) An application for review of a work capacity decision must be made in the form approved by the Authority and specify the grounds on which the review is sought. The worker must notify the insurer in a form approved by the Authority of an application made by the worker for review by the Authority or the Independent Review Officer.(3) The following provisions apply to the review of a work capacity decision when the reviewer is the Authority or the Independent Review Officer:(a) an application for review must be made within 30 days after the worker receives notice in the form approved by the Authority of the insurer’s decision on internal review of the decision (when the application is for review by the Authority) or the Authority’s decision on a review (when the application is for review by the Independent Review Officer),(b) an application for review by the Authority may be made without an internal review by the insurer if the insurer has failed to conduct an internal review and notify the worker of the decision on the internal review within 30 days after the application for internal review is made,(c) the reviewer may decline to review a decision because the application for review is frivolous or vexatious or because the worker has failed to provide information requested by the reviewer,(d) the worker and the insurer must provide such information as the reviewer may reasonably require and request for the purposes of the review,(e) the reviewer is to notify the insurer and the worker of the findings of the review and may make recommendations to the insurer based on those findings (giving reasons for any such recommendation),(f) the Independent Review Officer must also notify the Authority of the findings of a review and the Authority may make recommendations (giving reasons for any such recommendations) to the insurer based on those findings,(g) recommendations made by the Authority are binding on the insurer and must be given effect to by the insurer,(h) recommendations made by the Independent Review Officer are binding on the insurer and the Authority.(4) A review of a work capacity decision does not operate to stay the decision or otherwise prevent the taking of action based on the decision.(5) The Commission is not to make a decision in proceedings concerning a dispute about weekly payments of compensation payable to a worker while a work capacity decision by an insurer about those weekly payments is the subject of a review under this section.(6) A legal practitioner acting for a worker is not entitled to be paid or recover any amount for costs incurred in connection with a review under this section of a work capacity decision of an insurer.
(1) An insurer is to conduct a work capacity assessment of an injured worker when required to do so by this Act or the WorkCover Guidelines and may conduct a work capacity assessment at any other time.(2) A work capacity assessment is an assessment of an injured worker’s current work capacity, conducted in accordance with the WorkCover Guidelines.(3) A work capacity assessment is not necessary for the making of a work capacity decision by an insurer.(4) An insurer is not to conduct a work capacity assessment of a seriously injured worker unless the insurer thinks it appropriate to do so and the worker requests it.(5) An insurer may in accordance with the WorkCover Guidelines require a worker to attend for and participate in any assessment that is reasonably necessary for the purposes of the conduct of a work capacity assessment. Such an assessment can include an examination by a medical practitioner or other health care professional.(6) If a worker refuses to attend an assessment under this section or the assessment does not take place because of the worker’s failure to properly participate in it, the worker’s right to weekly payments is suspended until the assessment has taken place.
44B Evidence as to work capacity
(1) A worker must provide to the insurer:(a) certificates of capacity in accordance with this section in respect of the period in respect of which the worker is entitled to weekly payments, and(b) a declaration in the form approved by the Authority as to whether or not the worker is engaged in any form of employment or in self-employment or voluntary work for which he or she receives or is entitled to receive payment in money or otherwise or has been so engaged at any time since last providing a certificate under this section.(2) If a decision to reject a claim for weekly payments or to terminate weekly payments is set aside, a worker is not required to comply with this section in respect of any period from the date that the decision took effect until the day on which the decision is set aside.(3) A certificate of capacity must:(a) be a certificate given by a medical practitioner in a form approved by the Authority, and(b) certify as to the worker’s incapacity for work and whether the worker has a current work capacity or has no current work capacity during the period, not exceeding 28 days, stated in the certificate, and(c) specify the expected duration of the worker’s incapacity.(4) A certificate of capacity may cover a period exceeding 28 days if:(a) the person giving the certificate states in the certificate the special reasons why the certificate covers the longer period, and(b) the insurer is satisfied that, for the special reasons stated, the certificate should be accepted.(5) A certificate of capacity is of no effect to the extent that it relates to a period that is more than 90 days before the certificate is provided.(6) The insurer may discontinue weekly payments of compensation if the worker fails to comply with a requirement under this section within 7 days after the requirement is communicated to the worker by the insurer.Note. Section 270 of the 1998 Act also allows an insurer to require medical evidence and authorisations about incapacity for work when weekly payments begin.
44C Definition—pre-injury average weekly earnings
(1) In this Division, pre-injury average weekly earnings, in respect of a relevant period in relation to a worker, means the sum of:(a) the average of the worker’s ordinary earnings during the relevant period (excluding any week during which the worker did not actually work and was not on paid leave) expressed as a weekly sum, and(b) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).(2) If a worker has been continuously employed by the same employer for less than 4 weeks before the injury, pre-injury average weekly earnings, in relation to that worker, may be calculated having regard to:(a) the average of the worker’s ordinary earnings that the worker could reasonably have been expected to have earned in that employment, but for the injury, during the period of 52 weeks after the injury expressed as a weekly sum, and(b) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).(3) If a worker:(a) was not a full time worker immediately before the injury, and(b) at the time of the injury was seeking full time employment, and(c) had been predominantly a full time worker during the period of 78 weeks immediately before the injury,pre-injury average weekly earnings, in relation to that worker, means the sum of:(d) the average of the worker’s ordinary earnings while employed during the period of 78 weeks immediately before the injury (excluding any week during which the worker did not actually work and was not on paid leave) (the qualifying period), whether or not the employer is the same employer as at the time of the injury expressed as a weekly sum, and(e) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).(4) In relation to a worker of a class referred to in Column 2 of an item in Schedule 3, pre-injury average weekly earnings means the amount determined in accordance with Column 3 of that item, expressed as a weekly sum.(5) An overtime and shift allowance payment is permitted to be included in the calculation of pre-injury average weekly earnings (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable) if:(a) the worker worked paid overtime or carried out work that attracted a shift allowance during the relevant period, and(b) the worker would, but for the worker’s injury, have been likely, at any time during that 52 week period, to have worked paid overtime or carried out work that attracted a shift allowance.(6) The amount of an overtime and shift allowance payment that is permitted to be included is to be calculated in accordance with the following formula:
where:A is the total amount paid or payable to the worker for paid overtime and shift allowances in respect of the relevant period.
B is the number of weeks during the relevant period during which the worker worked or was on paid annual leave.
(7) If the amount of a worker’s pre-injury average weekly earnings is less than any minimum amount prescribed by the regulations as applicable to the worker, the amount of the worker’s pre-injury average weekly earnings is deemed to be that minimum amount. Different minimum amounts may be prescribed for different classes of workers, including part-time and full-time workers.
/Qj0ays9QCA3cmVemk%2FJj8w%3D%3D_g17.gif)
44D Definitions applying to pre-injury average weekly earnings—relevant period
(1) Subject to this section, a reference to the relevant period in relation to pre-injury average weekly earnings of a worker is a reference to:(a) in the case of a worker who has been continuously employed by the same employer for the period of 52 weeks immediately before the injury, that period of 52 weeks, or(b) in the case of a worker who has been continuously employed by the same employer for less than 52 weeks immediately before the injury, the period of continuous employment by that employer.(2) The relevant period, in relation to pre-injury average weekly earnings of a worker who, during the 52 weeks immediately before the injury, voluntarily (otherwise than by reason of an incapacity for work resulting from, or materially contributed to by, an injury that entitles the worker to compensation under this Act):(a) alters the ordinary hours of work, or(b) alters the nature of the work performed by the worker,and, as a result, the worker’s ordinary earnings are reduced, does not include the period before the reduction takes effect.(3) If, during the period of 52 weeks immediately before the injury, a worker:(a) is promoted, or(b) is appointed to a different position,(otherwise than on a temporary basis) and, as a result, the worker’s ordinary earnings are increased, the relevant period in relation to the worker begins on the day on which the promotion or appointment takes effect.
44E Definitions applying to pre-injury average weekly earnings—ordinary earnings
(1) Subject to this section, in relation to pre-injury average weekly earnings, the ordinary earnings of a worker in relation to a week during the relevant period are:(a) if the worker’s base rate of pay is calculated on the basis of ordinary hours worked, the sum of the following amounts:(i) the worker’s earnings calculated at that rate for ordinary hours in that week during which the worker worked or was on paid leave,(ii) amounts paid or payable as piece rates or commissions in respect of that week,(iii) the monetary value of non-pecuniary benefits provided in respect of that week, or(b) in any other case, the sum of the following amounts:(i) the actual earnings paid or payable to the worker in respect of that week,(ii) amounts paid or payable as piece rates or commissions in respect of that week,(iii) the monetary value of non-pecuniary benefits provided in respect of that week.(2) A reference to ordinary earnings does not include a reference to any employer superannuation contribution.
44F Definition of “non-pecuniary benefits”
(1) The following benefits provided in respect of a week to a worker by the employer for the performance of work by the worker are non-pecuniary benefits in respect of that week:(a) residential accommodation,(b) use of a motor vehicle,(c) health insurance,(d) education fees.(2) Any amount that, under the worker’s terms of employment, the employer is required (for the performance of work by the worker) to apply or deal with on behalf of the worker in accordance with the worker’s instructions is also a non-pecuniary benefit but this does not include any amount that is a base rate of pay exclusion.(3) Any amount that is excluded from base rate of pay as a base rate of pay exclusion is not a non-pecuniary benefit.(4) The monetary value of a non-pecuniary benefit referred to in subsection (1) in respect of a week is:(a) the value that would be the value as a fringe benefit for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth, calculated in accordance with subsection (5), divided by 52, or(b) in the case of residential accommodation that is not a fringe benefit or is otherwise not subject to fringe benefits tax, the amount that would reasonably be payable for that accommodation, or equivalent accommodation in the same area, in respect of that week if it were let on commercial terms.(5) Value as a fringe benefit is to be determined in accordance with the formula:
where:TV is the value that would be the taxable value of the benefit as a fringe benefit for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth.
FBT rate is the rate of fringe benefits tax imposed by the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth that applies when the non-pecuniary benefit is provided.
/Qj0ays9QCA3cmVemk%2FJj8w%3D%3D_g18.gif)
44G Definition applying to pre-injury average weekly earnings and current weekly earnings—base rate of pay
(1) In relation to pre-injury average weekly earnings and current weekly earnings, a reference to a base rate of pay is a reference to the rate of pay payable to a worker for his or her ordinary hours of work but does not include any of the following amounts (referred to in this Division as base rate of pay exclusions):(a) incentive based payments or bonuses,(b) loadings,(c) monetary allowances,(d) piece rates or commissions,(e) overtime or shift allowances,(f) any separately identifiable amount not referred to in paragraphs (a) to (e).(2) In relation to pre-injury average weekly earnings and current weekly earnings, if, at the time of the injury:(a) a worker’s base rate of pay is prescribed by a fair work instrument that applies to the worker, and(b) the worker’s actual rate of pay for ordinary hours is higher than that rate of pay,the worker’s actual rate of pay is to be taken to be the worker’s base rate of pay.
44H Definition applying to pre-injury average weekly earnings and current weekly earnings—ordinary hours of work
In relation to pre-injury average weekly earnings and current weekly earnings, the ordinary hours of work:(a) in the case of a worker to whom a fair work instrument applies are:(i) if the ordinary hours of work in relation to a week are agreed or determined in accordance with a fair work instrument between the worker and the employer—those hours, or(ii) in any other case, the worker’s average weekly hours (excluding any week during which the worker did not actually work and was not on paid leave) during the relevant period, or(b) in the case of a worker to whom a fair work instrument does not apply:(i) if the ordinary hours of work are agreed between the worker and the employer, those hours, or(ii) in any other case, the worker’s average weekly hours (excluding any week during which the worker did not actually work and was not on paid leave) during the relevant period.
44I Definition—current weekly earnings
In this Act, current weekly earnings of a worker in relation to a week means:(a) if the worker’s base rate of pay is calculated on the basis of ordinary hours worked, the sum of the following amounts:(i) the worker’s earnings calculated at that rate for the ordinary hours worked during that week,(ii) amounts paid or payable for overtime or shift allowances in respect of that week,(iii) amounts paid or payable as piece rates or commissions in respect of that week, or(b) in any other case, the worker’s actual earnings in respect of that week but not including any amount that is a base rate of pay exclusion unless it is:(i) paid or payable for overtime or shift allowances in respect of that week, or(ii) paid or payable as piece rates or commissions in respect of that week.
45 Reduction of weekly payments to qualify for other benefits
(1) The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment:(a) is not payable, or(b) is reduced to a specified amount or in a specified manner,if the worker, or any spouse or other person related to the worker, would as a result be qualified to receive any pension, allowance or other benefit under the Social Security Act 1991 of the Commonwealth or under any other Act or law.(2) Any such order has effect according to its tenor.(3) Any such order does not have effect for the purposes of determining (if applicable) the lump sum payable on the commutation of a weekly payment under this Act or the redemption of a weekly payment under section 15 of the former Act (as applied by Schedule 6 to this Act).
46 Reduction of weekly payments to prevent dual benefits
(cf former s 13)
(1) The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment be reduced to prevent dual benefits of the same kind being payable by the employer during and in respect of the incapacity for work.(2) Any such order shall have effect according to its tenor.(3) This section does not affect the operation of section 49 or 50.
47 Incapacity deemed to exist in certain cases
(cf former s 12A)
A worker who, as a result of injury, is unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment shall be deemed to be incapacitated for employment of that kind.
48 Compensation payable despite existing incapacity
(cf former s 7 (2A))
(1) Compensation is payable under this Division in respect of an injury which, but for existing incapacity, would have resulted in total or partial incapacity for work of the worker.(2) Any such compensation is payable as if total or partial incapacity for work had in fact resulted from the injury.(3) In this section:existing incapacity means total incapacity for work by disease or other cause:
(a) not entitling the worker to compensation under this Act, and(b) existing at the time when the total or partial incapacity for work would otherwise have resulted from the injury.
49 Weekly compensation payable despite holiday pay etc
(cf former s 7 (2B))
(1) Compensation is payable under this Division to a worker in respect of any period of incapacity for work even though the worker has received or is entitled to receive in respect of the period any payment, allowance or benefit for holidays, annual holidays or long service leave under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment.(2) The amount of compensation so payable is the amount which would have been payable to the worker had the worker not received or been entitled to receive in respect of the period any such payment, allowance or benefit.
50 Weekly compensation and sick leave
(cf former s 7 (2C))
(1) Compensation is payable to a worker in respect of a period of incapacity for work even though the worker has received or is entitled to receive in respect of that period any wages for sick leave under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment.(2) If a worker is paid compensation by the employer in respect of any period of incapacity for work in respect of which the employer is, or but for this section would be, liable under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment to pay to the worker any wages for sick leave:(a) that liability shall, to the extent of the compensation so paid, be deemed to have been satisfied by that payment notwithstanding the terms of that Act, award, agreement or contract, and(b) the amount of that compensation shall, for the purposes of subsections (4) and (5), be deemed to have been paid as compensation and not as wages.(3) If a worker, in respect of any period of incapacity for work in respect of which the employer is liable to pay compensation to the worker, is paid wages for sick leave by the employer and either an award is made afterwards for the payment of compensation to the worker in respect of that period or the employer agrees afterwards that compensation be paid to the worker in respect of that period:(a) the employer’s liability to pay compensation in respect of that period shall, to the extent of the wages paid, be deemed to have been satisfied by that payment, and(b) the wages shall, to the extent of the compensation, be deemed for the purposes of subsections (4) and (5) to have been paid as compensation and not as wages.(4) If a worker is paid any compensation in respect of a period of incapacity for work, the worker shall, in respect of any entitlement to sick leave, or wages for sick leave, accruing after the expiration of that period:(a) if the worker has not also been paid wages for sick leave in respect of that period—be deemed not to have been entitled to or granted, or to have received, any sick leave or wages for sick leave in respect of that period, or(b) if the worker has also been paid wages for sick leave in respect of that period—be deemed not to have been entitled to or granted, or not to have received, sick leave or wages for sick leave in respect of the whole of that period, but only in respect of a lesser period calculated as provided by subsection (5).(5) The lesser period referred to in subsection (4) is a period which bears to the period of incapacity of the worker the same proportion as the wages paid to the worker in respect of the period of incapacity bear to the total amount of the wages and compensation paid to the worker in respect of the period of incapacity.(6) In this section:compensation means weekly payments of compensation under this Division.
wages means wages, salary, allowance or other payment.
52 Termination of weekly payments on retiring age
(cf former s 60A)
(1) In this section:retiring age, in relation to a person, means the age at which the person would, subject to satisfying any other qualifying requirements, be eligible to receive an age pension under the Social Security Act 1991 of the Commonwealth.
(2) If a person:(a) receives an injury before reaching the retiring age—a weekly payment of compensation is not to be made in respect of any resulting period of incapacity for work occurring after the date on which that person reaches the retiring age, or(b) receives an injury on or after reaching the retiring age—a weekly payment of compensation shall not be made in respect of any resulting period of incapacity for work occurring more than 12 months after the first occasion of incapacity for work resulting from the injury.(3) This section has effect notwithstanding anything to the contrary in this Division.(4) This section does not apply to injuries received before 30 June 1985.
53 Weekly payments—residence outside the Commonwealth
(cf former s 54)
(1) If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless an approved medical specialist certifies, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature.(2) If the incapacity is so certified or determined to be of a permanent nature, the worker is entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as the worker establishes, in such manner and at such intervals as the Authority may require, the worker’s identity and the continuance of the incapacity in respect of which the weekly payment is payable.
54 Notice required before termination or reduction of payment of weekly compensation
(1) If a worker has received weekly payments of compensation for a continuous period of at least 12 weeks, the person paying the compensation must not discontinue payment, or reduce the amount, of the compensation without first giving the worker not less than the required period of notice of intention to discontinue payment of the compensation or to reduce the amount of the compensation.Maximum penalty: 50 penalty units.
(2) The required period of notice for the purposes of this section is:(a) when the discontinuation or reduction is on the basis of any reassessment by the insurer of the entitlement to weekly payments of compensation resulting from a work capacity decision of the insurer—3 months, or(b) in any other case—2 weeks for a worker who has been receiving weekly payments of compensation for a continuous period of less than 1 year, or 6 weeks for a worker who has been receiving weekly payments of compensation for a continuous period of 1 year or more.(3) If the payment of compensation to a worker is discontinued, or the amount of compensation is reduced, by a person in circumstances involving the commission by that person of an offence under subsection (1), the worker may, whether or not that person has been prosecuted for the offence, recover from the person an amount of compensation that:(a) if no period of notice has been given—is equal to the amount of compensation, or additional compensation, that would have been payable during the required period of notice if payment of the compensation had not been discontinued or if the amount of compensation had not been reduced, or(b) if less than the required period of notice has been given—is equal to the amount of compensation that would have been payable during the balance of the required period of notice if payment of the compensation had not been discontinued or if the amount of the compensation had not been reduced.(4) The notice referred to in this section is to be given to the worker personally or by post and (if the regulations so require) be in such form or contain such information as may be prescribed by the regulations.(5) This section does not affect the operation of section 58 (Refund of weekly payments paid after return to work etc).(6) This section does not apply to a reduction in weekly compensation as a result only of the application of different rates of compensation after the expiration of earlier periods of incapacity for which higher rates were payable.
57 Worker to notify return to work etc with other employer
(1) A worker who is in receipt of weekly payments of compensation shall forthwith notify the person making those payments of:(a) the worker’s commencing employment with some other person or in the worker’s own business, or(b) any change in that employment that affects the worker’s earnings.Maximum penalty: 40 penalty units.
(2) A worker is not guilty of an offence under this section if the worker satisfies the court that the person to whom the matter was to be notified failed to inform the worker of the obligation to notify that matter.(3) This section applies even though the weekly payments of compensation are payable under an interim payment direction by the Registrar.
58 Refund of weekly payments paid after return to work etc
(1) If, because of a worker’s return to employment or a change in employment that affects the worker’s earnings:(a) the worker is not entitled under this Act to any weekly payments of compensation that have been paid to the worker, or(b) the amount of any weekly payments of compensation that have been paid to the worker exceed the amount to which the worker is entitled under this Act (including under the former Act),the Commission may order the worker to refund to the person who made the payments any amount to which the worker is not entitled in respect of payments during any period not exceeding 2 years (or such shorter or longer period as the Commission considers to be appropriate) from the date of payment.(2) Any such refund may, in accordance with the terms of the Commission’s order, be deducted from future weekly payments of compensation to the worker or be recovered as a debt in a court of competent jurisdiction.(3) This section applies even though the weekly payments of compensation are payable under an interim payment direction by the Registrar.(4) Without limiting this section, the Commission may make such orders as the Commission thinks fit for the adjustment of weekly payments of compensation to a worker to take account of any overpayments made to the worker (whether or not in the circumstances referred to in subsection (1)) in respect of any previous period.(5) In this section:(a) a reference to the worker’s return to employment includes a reference to the worker’s commencing employment, and(b) a reference to employment includes a reference to employment in the worker’s own business.(6) A court before which proceedings for an offence under section 57 are taken against a person may, on the application of the Authority (whether or not the person is convicted of the offence), make any order that it is satisfied the Commission could make under this section as a result of the return to employment or change in employment to which the alleged offence relates. The standard of proof that applies in connection with an application under this subsection is proof on the balance of probabilities.(7) The power conferred on a court by subsection (6) is subject to the following limitations:(a) it does not authorise the making of an order providing for the refund to be deducted from any future weekly payments of compensation to the extent that they are payable under an award of the Commission,(b) it does not authorise the making of an order of the kind described in subsection (4).(8) An order under subsection (6) is enforceable as a civil debt and may be recovered as such in any court of competent jurisdiction by the person to whom the order requires payment to be made.(9) The Local Court cannot order the payment of an amount under subsection (6) that when added to the amount of any penalty imposed for the offence concerned would exceed an amount equivalent to 500 penalty units.(10) This section does not limit any other right of recovery that a person may have against another person in respect of any overpayment of compensation to that other person.