Division 2Division 2 Weekly compensation by way of income support
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 Definition of first 26 weeks of incapacity
(1) For the purposes of this Division, the first 26 weeks of incapacity, in relation to a worker, is the period of incapacity for work (whether total or partial, or both) not exceeding 26 weeks after the worker becomes entitled to weekly payments of compensation in respect of the incapacity.(2) A reference in subsection (1) to a period of incapacity for work includes, in the case of separate periods of incapacity resulting from the same injury, a reference to the aggregate of those periods.(3) For the avoidance of doubt, the first 26 weeks of incapacity does not include any period during which there is no weekly compensation payable in accordance with this Division, whether because of the operation of section 40 or otherwise.
(1) The maximum weekly payment of compensation to an injured worker in respect of any period of total or partial incapacity for work shall not in any case exceed $1,000.(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 payment of compensation 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.
36 Weekly payment during total incapacity—first 26 weeks
(cf former s 9 (1) (a))
(1) The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work during the first 26 weeks of incapacity shall be the amount of the worker’s current weekly wage rate.(2) In this section:current weekly wage rate, in relation to a worker, means the worker’s current weekly wage rate determined from time to time in accordance with section 42.
37 Weekly payment during total incapacity—after first 26 weeks
(cf former s 9 (1), (4))
(1) The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work (not being a period during the first 26 weeks of incapacity) shall be:(a) 90 per cent of the worker’s average weekly earnings, except that:(i) the payment shall not exceed $235.20 per week,(ii) in the case of a worker who is over 21 years of age at the time of payment—the payment shall not be less than $187.10 per week, and(iii) in the case of a worker whose average weekly earnings do not exceed $170 per week—the payment shall be 100 per cent of those earnings or $153, whichever is the lesser amount,(b) in addition, $62 per week in respect of:(i) a dependent wife or dependent husband of the worker, or(ii) if there is no dependent wife or dependent husband at any time during which weekly payments are payable—any one dependent de facto spouse or other family member of the worker, and(c) in addition:(i) in respect of the dependent children of the worker, the following amounts per week:
No of dependent children
Additional amount per week
1 dependent child
$44.30
2 dependent children
$99.10
3 dependent children
$164.16
4 dependent children
$230.90
5 or more dependent children
$230.90 plus $66.60 for each child in excess of 4
(ii) if there are no dependent children at any time during which weekly payments are payable—in respect of the dependent brothers and sisters of the worker, the same amounts per week as are payable under subparagraph (i) in respect of dependent children of the worker.(1A) Despite subsection (1), for a maximum of 26 weeks the weekly payment of compensation to an injured worker in respect of any period of total incapacity for work (whether the period is during or after, or partly during and partly after, the first 26 weeks of incapacity) is the amount specified in section 36. This subsection applies even if the injury concerned resulted in any period of partial incapacity for work in respect of which the worker received or receives weekly payments of compensation.(2) The total weekly payment under subsection (1) shall not exceed the worker’s current weekly wage rate determined from time to time in accordance with section 42.(3) A weekly payment made under this section in respect of a dependent wife, husband, de facto spouse or other family member, child, brother or sister is payable only during the period of dependency.(4) For the purposes of this section, a person is a dependent wife, husband, de facto spouse or other family member, child, brother or sister in relation to a worker if the person is totally or mainly dependent for support on the worker at the date compensation becomes payable to the worker or (whether married to the worker or born before or after that date) becomes so dependent after that date.(5) A person is not precluded from being totally or mainly dependent for support on a worker merely because:(a) in the case of a child—a payment is made in respect of the child under the Social Security Act 1991 of the Commonwealth, or(b) in the case of a de facto spouse or other family member—the worker pays wages to the person for the performance of domestic services for the worker.(6) A husband, wife or de facto spouse or other family member of the worker who, at the time of the injury to the worker:(a) was employed, and(b) was not totally or mainly dependent for support on the worker merely because of earnings from that employment,shall be regarded as being so dependent at the time of the injury if the Commission is satisfied that the person left that employment for the purpose of caring for the worker.(6A) If an 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 weekly payment of compensation applicable to a worker injured before the date on which the adjustment takes effect is, for any period of total incapacity for work occurring on and after that date (not being a period during the first 26 weeks of incapacity), to be determined by reference to that amount as so adjusted.(6B) 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.(7) In this section:appropriate period, for the purposes of the calculation of “average weekly earnings” in relation to a worker, means the period of 12 months or, if the worker has been employed with the employer concerned for less than 12 months at the time of the injury, that lesser period.
average weekly earnings, in relation to a worker, means the average weekly earnings of the worker determined in accordance with section 43 during the appropriate period before whichever of the following times produces the higher average weekly earnings:
(a) the time of the injury concerned,(b) the time at which the relevant weekly payment of compensation is due,with the determination under paragraph (b) made on the assumption that the worker had been earning the wage or salary which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or some comparable employment.brother or sister, in relation to a worker, means a brother or sister of the worker who is:
(a) under the age of 16 years, or(b) a student,but does not include a person in respect of whom a weekly payment is being made under subsection (1) (b) (ii).child, in relation to a worker, means:
(a) child or stepchild of the worker who is under the age of 16 years,(b) a person under the age of 16 years to whom the worker stands in the place of a parent, or(c) a student who is a child or stepchild of the worker or is a person to whom the worker stands in the place of a parent.de facto spouse or other family member, in relation to a worker, means a person who:
(a) in relation to:(i) an injury received before the commencement of Schedule 5 [2] to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—although not legally married to the worker, lives with the worker as the worker’s husband or wife on a permanent and genuine domestic basis, or(ii) an injury received after that commencement—is the other party to a de facto relationship with the worker, or(b) is the worker’s father, mother, grandfather, grandmother, stepfather, stepmother, grandson, grand-daughter, brother, sister, half-brother or half-sister and is over the age of 16 years, or(c) is over the age of 21 years and is caring for any child of the worker.student means a person of or over the age of 16 years but under the age of 21 years who is receiving full-time education at a school, college or university.
38 Partially incapacitated workers not suitably employed—special initial payments while seeking employment
(1) Entitlement
If:(a) a worker is partially incapacitated for work as a result of an injury, and(b) the worker is not suitably employed during any period of that partial incapacity for work,the worker is to be compensated in accordance with this section during each such period as if the worker’s incapacity for work were total.(2) Maximum period of entitlement
The maximum total period for which the worker may be so compensated is 52 weeks.(3) Rate of compensation
When a worker is so compensated, the compensation is payable at the relevant rate prescribed by this Act for the period of incapacity concerned. However, after the first 26 weeks of incapacity, the rate is the greater of the following rates:(a) 80% of the worker’s current weekly wage rate (that is, 80% of the rate prescribed by this Act for the first 26 weeks of incapacity),(b) the statutory indexed rate (that is, the rate prescribed by this Act for a period of incapacity after the first 26 weeks).(4) Worker to seek suitable employment
Compensation is not payable to a worker in accordance with this section during any period unless the worker is seeking suitable employment during that period (as determined in accordance with section 38A).
38A Determination of whether worker seeking suitable employment
(1) Application
This section provides for the determination of whether a worker is seeking suitable employment for the purposes of section 38 and section 52A (Discontinuation of weekly payments after 2 years).(2) General requirements
The worker is not to be regarded as seeking suitable employment unless:(a) the worker is ready, willing and able to accept an offer of suitable employment from the employer, and(b) the worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker’s partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker, and(c) the worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer, and(d) the worker is taking reasonable steps to obtain suitable employment from some other person.Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects.
(3) Notice of requirement relating to obtaining suitable employment from other person
The requirement under subsection (2) (d) does not apply unless the worker has been notified of the requirement in accordance with this subsection.Such a notice:
(a) must be given in writing by the insurer or self-insurer concerned, and(b) must state that the worker is required to take reasonable steps to obtain suitable employment from some other person in order to remain entitled to compensation under section 38, and(c) may set out particular reasonable steps that can be taken by the worker in order to satisfy that general requirement, and(d) is subject to, and must comply with, any regulations and (subject to the regulations) any claims procedures notified by the Authority to insurers and self-insurers, and(e) does not constitute an admission of liability by an employer or insurer under this Act or independently of this Act.The requirement under subsection (2) (d) does not apply, and a notice is not to be given under this subsection, while action is being taken by or on behalf of the employer to arrange or explore the possibility of suitable employment with the employer.
(4) Notice not applicable when proceedings pending etc
If proceedings relating to the payment of compensation under section 38 or to the discontinuation of weekly payments under section 52A are before the Commission or the insurer or self-insurer has denied liability to pay any such compensation:(a) a notice is not to be given under subsection (3), and the requirement under subsection (2) (d) applies without any such notice being given, and(b) particular steps to satisfy that requirement that are set out in a notice previously given do not restrict the determination of the matter by the Commission.(5) Workers treated as not seeking suitable employment
A worker is not to be regarded as seeking suitable employment if the worker has unreasonably refused an offer from any person of suitable employment or necessary rehabilitation training. A worker is also not to be regarded as seeking suitable employment if the worker:(a) unreasonably refuses to have an assessment made of the worker’s employment prospects, or(b) unreasonably refuses to co-operate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under the employer’s return-to-work program.(6) Court orders
An order of the Commission relating to the weekly payment of compensation:(a) may be subject to conditions relating to the worker taking reasonable steps to obtain suitable employment during any weekly payments under section 38, and(b) may include directions relating to the adjustment of the amount of weekly payments under section 38 for any future period of payments under section 40 when the worker obtains employment or when the period for payments under section 38 comes to an end.(7) Definitions
In this section:employer of a worker who is partially incapacitated for work means the employer liable to pay compensation to the worker in respect of the incapacity or, if there are 2 or more such employers, the employer so liable who last employed the worker.
refusal of an offer or to do a thing includes a failure to accept the offer or to do the thing.
rehabilitation training means training of a vocationally useful kind, and includes vocational re-education, work-trials, occupational rehabilitation services or treatment provided by way of rehabilitation.
suitable employment means suitable employment within the meaning of section 43A.
39 Incapacity treated as total—“odd-lot” rule
(cf former s 12)
(1) If:(a) a worker is fit for employment of a kind not commonly available for a person in the worker’s circumstances, and(b) but for this section, the worker would be entitled to be compensated under this Division as totally incapacitated for work,the worker is not entitled to be so compensated unless:(c) the worker proves to the satisfaction of the Commission that the worker has taken all reasonable steps to obtain (but has failed to obtain) employment for which the worker is fit, and(d) payment is made in accordance with the Commission’s order.(2) An order of the Commission under this section may be limited to such period, and be subject to such conditions, as may be specified in the order.(3) The Commission may, in determining whether a worker has taken all reasonable steps to obtain employment for the purposes of this section, have regard to:(a) whether the worker was made aware of the worker’s obligation to take those steps, and(b) circumstances of the kind referred to in section 38A (5).(4) The “odd-lot” rule and any similar rule for determining whether a worker is totally or partially incapacitated for work is subject to the provisions of this section.(5) This section does not affect the operation of section 38 or 55.(6) The Registrar may make any order that the Commission may make under this section if the matter must be determined for the purposes of any interim payment direction by the Registrar.
40 Weekly payments during partial incapacity—general
(cf former ss 9, 11)
(1) Entitlement
The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.(2) Calculation of reduction in earnings of worker—general
The reduction in the worker’s weekly earnings is (except as provided by this section) the difference between:(a) the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment (but not exceeding $1,000), and(b) the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury (but not exceeding $1,000).(2A) Calculation of reduction in earnings of worker—workers rejecting suitable employment
If the worker has unreasonably rejected suitable employment, the reduction in the worker’s weekly earnings is the difference between:(a) the current weekly wage rate for the worker’s pre-injury employment (but not exceeding $1,000), and(b) the current weekly wage rate for some suitable employment for the worker from time to time after the injury (but not exceeding $1,000).(2B) For the purposes of subsection (2A), a worker unreasonably rejects suitable employment if:(a) a period of 28 days has elapsed since the worker was offered suitable employment by any person and the worker has unreasonably refused or not accepted the offer (whether or not the offer was available during the whole of that period), or(b) the worker obtains suitable employment with any person but subsequently unreasonably discontinues that employment.(3) Ability to earn in suitable employment
The determination of the amount that an injured worker would be able to earn in some suitable employment is subject to the following:(a) the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker,(b) the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.(4) Rehabilitation—unemployed (or not fully employed) workers
An injured worker who duly undertakes rehabilitation training under section 38 is not to be disadvantaged under this section by any increase in the amount that the worker would be able to earn merely because of that training, unless the worker unreasonably refuses an offer of suitable employment for which the worker has been trained. The Commission may determine any dispute about the operation of this subsection.(5) Maximum rate of compensation
The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is not to exceed the weekly payment that would be payable to the worker if it were a period of total incapacity for work.(6) Adjustment of compensation—indexation
If it appears proper in the circumstances of the case, the weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work may (subject to subsection (5)) be adjusted to take account of any adjustment because of the operation of Division 6 in the weekly payment that would be payable to the worker if it were a period of total incapacity for work.(7) Adjustment of maximum amounts—application
If an amount mentioned in subsection (2):(a) is adjusted by the operation of Division 6, or(b) is adjusted by an amendment of this section,the weekly payment of compensation applicable to a worker injured before the date on which the adjustment takes effect is, for any period of partial incapacity for work occurring on and after that date, to be determined by reference to that amount as so adjusted. 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.(8) Exemption
This section does not apply to any period of partial incapacity for work during which the worker is compensated under this Act as if the worker’s incapacity for work were total.
40A Assessment of incapacitated worker’s ability to earn
(1) An injured worker who is partially incapacitated for work may be required by the employer to undergo an assessment of the worker’s ability to earn in some suitable employment.(2) An injured worker is not required to undergo such an assessment unless the worker has been informed about the possible entitlements of the worker under section 38 and the requirements for the worker to obtain those entitlements, and about the possible effects of section 52A on the worker. The giving of that information does not constitute an admission of liability by an employer or insurer under this Act or independently of this Act.(3) The Authority may, by notice to insurers and self-insurers, require any such information to be given in the form approved by the Authority.(4) Any such assessment is at the cost of the person who requires it.(5) If an injured worker fails, without reasonable excuse, to undergo any such assessment, the right to weekly compensation for partial incapacity for work is suspended while the failure continues.
41 Incapacity for period less than 1 week
(cf former s 9 (1) (a))
A weekly payment of compensation for total or partial incapacity for work in respect of a period of less than 1 week shall be reduced by the same proportion as normal working time during that part of the week bears to the worker’s full normal working week.
(cf former s 9 (8)–(13))
(1) Subject to this section, a reference in this Division to the current weekly wage rate of a worker, being a worker who is incapacitated for work and who, immediately before being incapacitated:(a) was remunerated under an award fixing or providing for the fixing of a rate for a weekly or longer period (not being a worker who belongs to a class of workers prescribed by the regulations for the purposes of paragraph (c))—is, at any time during the incapacity, a reference to the rate of remuneration under that award at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated,(b) was an employee of the Crown or of an employer constituted by an Act and was remunerated, pursuant to a determination made by the Crown or made under the Public Service Act 1979 or under the provisions of any other Act, being a determination fixing or providing for the fixing of a rate for a weekly or longer period—is, at any time during that incapacity, a reference to the rate of remuneration under that determination at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated,(c) belonged to a class of workers prescribed by the regulations for the purposes of this paragraph—is a reference to a rate calculated in accordance with a formula (or calculated in any other manner) prescribed by the regulations in respect of that class of workers for the purposes of this paragraph, or(d) was not a worker or employee to whom paragraph (a), (b) or (c) applies—is a reference to the prescribed proportion of the worker’s average weekly earnings in respect of work being performed by the worker immediately before becoming incapacitated or, if a specific rate is prescribed by the regulations for the purposes of this paragraph, is a reference to that rate.(2) If a regulation made for the purposes of subsection (1) (c) or (5) (b) contains a reference to an award or a provision of an award and the award or provision, in so far as it relates to a particular worker, is subsequently varied or replaced, the reference shall, on and from the date of the variation or replacement, be deemed, in relation to that worker, to be a reference to:(a) the award or provision as so varied, or(b) the award or provision which replaced that award or provision,as the case may be.(3) For the purposes of subsection (1) (a), if a worker is not remunerated in respect of the work performed by the worker under an award fixing or providing for the fixing of a rate for a weekly or longer period but:(a) there is such an award under which the worker would be entitled to be remunerated if the worker performed that work under a contract of service—the worker shall be deemed to be remunerated in respect of that work under that lastmentioned award, or(b) although paragraph (a) does not apply, there is an award fixing or providing for the fixing of a rate for a weekly or longer period which, having regard to the nature of that work, it would be fair and reasonable to apply to and in respect of that work—the worker shall be deemed to be remunerated in respect of that work under that lastmentioned award.(4) Subject to subsections (6) and (7), if the amount of a part-time worker’s current weekly wage rate, as determined under subsection (1), exceeds the worker’s average weekly earnings, a reference in this Division to that worker’s current weekly wage rate is a reference to those average weekly earnings.(5) In subsection (4), the reference to a part-time worker:(a) includes a reference to a worker belonging to a class of workers prescribed by the regulations for the purposes of this paragraph, and(b) does not include a reference to a worker belonging to a class of workers prescribed by the regulations for the purposes of this paragraph.(6) In determining a worker’s current weekly wage rate in accordance with subsection (1) (a) or (b) or (4), any amount paid or payable to the worker:(a) in respect of shift work, overtime or other penalty rates,(b) under the terms of the worker’s employment in excess of the ordinary rate fixed by any award for the work performed by the worker, or(c) to cover special expenses incurred by the worker because of the nature of the worker’s employment,is, except in so far as the regulations otherwise provide, to be disregarded.(7) A reference in this Division to the current weekly wage rate of a worker, being a worker who:(a) at the time of the worker’s injury, was employed under 2 or more contracts of service under which the worker worked at one time for one employer and at another time for another employer, and(b) is incapacitated from performing work under any 2 or more of those contracts,is a reference:(c) except as provided in paragraph (d)—to the sum of the current weekly wage rates applicable to the worker under subsection (1) or (4) as a worker employed by each of the employers by whom the worker was employed under the contracts referred to in paragraph (b), or(d) where the total of the worker’s ordinary weekly hours of work under the contracts referred to in paragraph (b) exceeded 40—to an amount that bears to the sum referred to in paragraph (c) the same proportion as 40 bears to that total,and the current weekly wage rate of such a worker, as determined under this section, shall be deemed to be the worker’s current weekly wage rate as a worker in the employment of the employer for whom the worker was working at the time of the worker’s injury to the exclusion of any other employers.(7A) If the application of subsection (7) to an injured worker results in the current weekly wage rate of the worker being less than the rate that would be determined under this section if regard was only had to employment with the employer for whom the worker was working at the time of the worker’s injury, a reference to the current weekly wage rate of the worker is, despite that subsection, a reference to that higher rate.(8) In this section:appropriate period, for the purposes of the calculation of “average weekly earnings” in relation to a worker, means the period of 12 months or, if the worker has been employed with the employer concerned for less than 12 months at the time of the injury, that lesser period.
average weekly earnings, in relation to a worker, means the average weekly earnings of the worker determined in accordance with section 43 during the appropriate period before whichever of the following times produces the higher average weekly earnings:
(a) the time of the injury concerned,(b) the time at which the relevant weekly payment of compensation is due,with the determination under paragraph (b) made on the assumption that the worker had been earning the wage or salary which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or some comparable employment.award means:
(a) an award in force under the Industrial Arbitration Act 1940 or an award or industrial agreement, within the meaning of the Conciliation and Arbitration Act 1904 of the Commonwealth, that is in force,(b) an industrial agreement or enterprise agreement in force under the Industrial Arbitration Act 1940 or the Industrial Relations Act 1991,(c) an agreement made under the Public Service Act 1979 or an agreement with respect to wages or salaries entered into under the provisions of any other Act by an employer constituted by that other Act with any association or organisation representing any group or class of employees, or(d) an award made by the Coal Industry Tribunal under the Coal Industry Act 1946,(e) (without limiting the above) includes a State industrial instrument,and includes any such award, industrial agreement or other agreement or instrument as from time to time amended.prescribed proportion means 80 per cent or, if the regulations prescribe some other percentage for the purposes of this section, that other percentage.
43 Computation of average weekly earnings
(cf former s 14)
(1) For the purposes of the provisions of this Act relating to “earnings” and “average weekly earnings” of a worker, the following rules shall be observed:(a) Average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the worker was being remunerated, except that if, because of the shortness of the time during which the worker has been in the employment of the employer or the terms of the employment, it is impracticable at the date of the injury to compute the rate of remuneration, regard may be had to the average weekly amount which, during the 12 months previous to the injury, was being earned:(i) by a person in the same grade, employed at the same work, by the same employer, or(ii) if there is no person so employed, by a person in the same grade employed in the same class of employment, and in the same district.(b) If the worker has entered into concurrent contracts of service with 2 or more employers under which he or she worked at one time for one such employer, and at another time for another such employer, the worker’s average weekly earnings shall be computed as if the worker’s earnings under all such contracts were earnings in the employment of the employer for whom the worker was working at the time of the injury.(c) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the worker was employed at the time of the injury, uninterrupted by absence from work due to illness, strikes, lockouts, bad weather or any other unavoidable cause.(d) If the employer has been accustomed to pay to the worker a sum to cover any special expenses incurred by the worker because of the nature of the employment, the sum so paid shall not be reckoned as part of the earnings.(e) The average weekly earnings of a casual worker, that is to say a worker whose contracts of service are mainly contracts for separate periods each of which is of not more than 5 working days in the same industry, shall be computed as if the worker’s earnings under all his or her contracts of service, for a period of 12 months preceding the injury or any shorter period during which the worker may have been engaged in the industry, were earnings in the employment of the employer for whom the worker was working at the time of the injury.(f) If a worker is a worker to whom paragraph (e) applies or has been absent from work by reason of illness, strikes, lockouts, bad weather, intermittency of employment, slackness of trade or any other reasonable cause, the average weekly earnings of the worker shall, notwithstanding the foregoing provisions of this section:(i) in the case of a worker who is 21 years of age or over, be deemed to be not less than the full wage for a full normal working week of that worker or the basic wage, whichever is the greater, and(ii) in the case of any other worker, be deemed to be not less than the full wage for a full normal working week of that worker.(1A) Any relevant rules provided by this section are also to be observed in determining the average weekly amount that a worker would be able to earn in suitable employment for the purposes of section 40. If there is an ordinary weekly rate of pay generally applicable to employment of that kind under industrial law, the average weekly amount is to be determined by reference to that rate of pay together with any other likely weekly payments which it would be proper to include in the circumstances of the case (such as overtime or other amounts payable under common industry or other practice).(2) An employer shall, within 28 days, or such other period as may be prescribed, after a request from the employer’s injured worker, supply to the worker, in writing and in accordance with any requirements of the regulations:(a) such details of the relevant award (“award” having the same meaning as in section 42) and such classification details as will enable the worker to determine his or her current weekly wage rate for the purposes of this Act,(b) such details of the earnings of the worker as will enable the worker to determine his or her weekly earnings for the purposes of this Act, or(c) such details of the earnings of at least 2 persons employed by the employer at the same or a comparable grade and work as the worker as will enable the worker to determine, for the purposes of section 36, 37, 40 or 55, the amount which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or some comparable employment.(2A) An employer who fails without reasonable excuse to comply with subsection (2) is guilty of an offence.Maximum penalty: 20 penalty units.
(2B) The regulations may make provision for or with respect to:(a) the manner and form in which the details required to be provided by subsection (2) are to be provided, and(b) requiring an employer to certify as to the completeness and accuracy of details provided by the employer for the purposes of subsection (2).(3) In this section, basic wage means the basic wage in force under clause 15 of Schedule 4 to the Industrial Relations Act 1996, at the time of the computation.
(1) For the purposes of sections 38, 38A and 40:suitable employment, in relation to a worker, means employment in work for which the worker is suited, having regard to the following:
(a) the nature of the worker’s incapacity and pre-injury employment,(b) the worker’s age, education, skills and work experience,(c) the worker’s place of residence,(d) the details given in the medical certificate supplied by the worker,(e) the provisions of any injury management plan for the worker,(f) any suitable employment for which the worker has received rehabilitation training,(g) the length of time the worker has been seeking suitable employment,(h) any other relevant circumstances.(2) In the case of employment provided by the worker’s employer, suitable employment includes:(a) employment in respect of which:(i) the number of hours each day or week that the worker performs work, or(ii) the range of duties the worker performs,is suitably increased in stages (in accordance with a rehabilitation plan or return-to-work plan or otherwise), and(b) if the employer does not provide employment involving the performance of work duties—suitable training of a vocationally useful kind provided:(i) by the employer at the workplace or elsewhere, or(ii) by any other person or body under arrangements made with the employer,but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends the training concerned.(3) However, in any such case, suitable employment does not include:(a) employment that is merely of a token nature and does not involve useful work having regard to the employer’s trade or business, or(b) employment that is demeaning in nature, having regard to subsection (1) (a) and (b) and to the worker’s other employment prospects.(4) A worker is to be regarded as suitably employed if:(a) the worker’s employer provides the worker with, or the worker obtains, suitable employment, or(b) the worker has been reinstated to the worker’s former employment under Part 7 of Chapter 2 of the Industrial Relations Act 1996.
44 Incapacitated worker reaching 21 years of age—special provision
(cf former s 9 (4A))
If:(a) a worker in receipt of weekly payments of compensation was under 21 years of age at the date of the injury,(b) the worker reaches the age of 21 years, and(c) the worker’s average weekly earnings are less than the weekly sum which the worker would probably have been earning on reaching 21 years of age if the worker had remained uninjured,the weekly payment of compensation shall be increased to such amount as would have been payable if the average weekly earnings had been equivalent to that weekly sum.
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 shall not be made in respect of any resulting period of incapacity for work occurring after the first anniversary of 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.
52A Discontinuation of weekly payments for partial incapacity after 2 years
(1) Weekly payments of compensation in respect of partial incapacity for work are not payable for any period beyond the first 104 weeks of partial incapacity for work (whether or not any part of that period is compensated as if the incapacity for work was total) but only if one or more of the following paragraphs (referred to in this section as grounds for discontinuation) applies to the worker at the relevant time:(a) the worker is not suitably employed (within the meaning of section 43A) and is not seeking suitable employment (as determined in accordance with section 38A),(b) the worker is not suitably employed (within the meaning of section 43A) and has previously unreasonably rejected suitable employment (within the meaning of section 40 (2B)),(c) the worker has sought suitable employment but has failed to obtain suitable employment primarily because of the state of the labour market (rather than because of the effects of the worker’s injury).(2) The relevant time for the purposes of this section is the time at which the notice under section 54 of intention to discontinue payment of compensation pursuant to this section is given. The discontinuation of payments under this section has effect even if, after the relevant time, none of the grounds for discontinuation applies to the worker.(3) A worker is not entitled to a resumption of payment of weekly compensation for partial incapacity for work once payment is discontinued because of this section.(4) The notice under section 54 of intention to discontinue payment of compensation pursuant to this section must be given. The notice can be given up to 6 weeks before the end of the 104 week period for which the worker has received or is entitled to receive weekly payments of compensation but cannot be given earlier than that.(5) The fact that the worker becomes totally incapacitated for work after the relevant time does not affect the operation of this section in respect of partial incapacity for work.(6) This section does not affect any entitlement to compensation under this Act in respect of any period of total incapacity for work.(7) A period of partial incapacity for work does not count as part of the 104 weeks referred to in subsection (1) unless the worker received or was entitled to receive compensation for that period. Separate periods during which the worker received or was entitled to receive those payments are to be aggregated.(8) If:(a) a claim for weekly payments of compensation is made by a worker after the earliest time at which a notice under section 54 to discontinue payment of compensation can be given under this section, or(b) proceedings before the Commission involve a claim for weekly payments of compensation in respect of any period of incapacity for work that includes any period beyond the end of the 104 week period,the notice under section 54 may (but need not) be given before payments are discontinued. If the notice is not given, the relevant time for the purposes of this section is the time at which payments are discontinued.(9) This section does not apply to compensation for an injury received by a person as a worker employed in or about a mine.
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
(cf former s 54A)
(1) If a worker:(a) has received weekly payments of compensation for a continuous period of at least 12 weeks, and(b) has provided the worker’s employer, or the employer’s insurer, with a certificate by a medical practitioner specifying the expected duration of the worker’s incapacity,the person paying the compensation shall not discontinue payment, or reduce the amount, of the compensation during the period of incapacity so specified without giving the worker the prescribed 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) 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 prescribed 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 prescribed period of notice has been given—is equal to the amount of compensation that would have been payable during the balance of the prescribed period of notice if payment of the compensation had not been discontinued or if the amount of the compensation had not been reduced.(3) The prescribed period of notice referred to in this section is:(a) if the worker has been receiving weekly payments of compensation for a continuous period of at least 12 weeks but less than 1 year—2 weeks, or(b) if the worker has been receiving weekly payments of compensation for a continuous period of 1 year or more—6 weeks.(4) The notice referred to in this section shall:(a) be given to the worker personally or by post, and(b) if the regulations so require, be in such form (or contain such information) as may be prescribed by the regulations.(5) This section is subject to section 58.(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 (whether under section 38 or otherwise).(7) The notice referred to in this section is to include information about the possible entitlements of the injured worker under section 38 and the requirements for the worker to obtain those entitlements if:(a) the notice relates to a reduction in the amount of the worker’s weekly compensation as a result of the application of section 40, and(b) the injured worker is not in receipt of earnings, and(c) the information has not been supplied to the worker under section 40A.The giving of that information does not constitute an admission of liability by an employer or insurer under this Act or independently of this Act.
(8) Before giving a notice under this section, an insurer must carry out an internal review of the decision to give the notice.
(cf former s 60)
(1) Any weekly payment of compensation may, because of a change of circumstances, be reviewed by the Commission at the request of the employer or the worker or of the Authority.(2) On any such review:(a) the weekly payment may be ended, reduced or increased (but subject to the provisions of this Division relating to the amount of the weekly payment), and(b) the amount of the weekly payment (if any) shall, in default of agreement, be determined by the Commission.(2A) If on any such review a weekly payment of compensation is ended or reduced with effect from a day that is earlier than the date of the Commission’s order on the review, the Commission may order the worker to refund the amount of any payments made to the worker to which the worker is not entitled as a result of the order on the review.(3) On any such review, the amount of any weekly payment payable in respect of an injury may be increased to such an amount as would have been awarded if the worker had, at the time of the injury, been earning the wage or salary which the worker would probably have been earning, at the date of the review, if the worker had remained uninjured and continued to be employed in the same or some comparable employment.(4) A review under this section shall be given such priority as is reasonably practicable, and any necessary directions may be given to expedite the hearing of the matter.(5) (Repealed)
55A Award of compensation may be for fixed period
The Commission may, under an award for weekly payments of compensation, direct that the payments are to be made for a specified period even though the period of incapacity is indefinite.
56 Award of compensation may be subject to supply of medical certificates etc
(1) The Commission may, as a condition of any award for weekly payments of compensation, require the worker to supply to the employer or other specified person from time to time medical certificates relating to the incapacity for work to which the award relates.(2) Subject to any further order of the Commission, if any such certificate is not supplied in accordance with the terms of the award, weekly payments of compensation under the award may be suspended until the certificate is supplied.(3) This section applies to an interim payment direction by the Registrar for weekly payments of compensation in the same way as it applies to an award by the Commission for any such payments.
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) A 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.