|FAIR WORK COMMISSION|
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards –transitional provisions
HORTICULTURE AWARD 2010
DEPUTY PRESIDENT KOVACIC
MELBOURNE,15 OCTOBER 2015
4 yearly review of modern awards –transitional provisions –accident make-up pay.
A. Further to the Full Bench decision issued on 18 August 2015 1,the above award is varied as follows:
1. By inserting a new clause 20 as follows:
20. Accident pay
For the purposes of this clause,the following definitions will apply:
(a) Accident pay means a weekly payment made to an employee by the employer that is the difference between the weekly amount of compensation paid to an employee pursuant to the applicable workers’compensation legislation and the weekly amount that would have been received had the employee been on paid personal leave at the date of the injury (not including over award payments) provided the latter amount is greater than the former amount.
(b) Injury will be given the same meaning and application as applying under the applicable workers’compensation legislation covering the employer.
20.2 Entitlement to accident pay
The employer must pay accident pay where an employee suffers an injury and weekly payments of compensation are paid to the employee under the applicable workers’compensation legislation for a maximum period of 26 weeks.
20.3 Calculation of the period
(a) The 26 week period commences from the date of injury. In the event of more than one absence arising from one injury,such absences are to be cumulative in the assessment of the 26 week period.
(b) The termination by the employer of the employee’s employment within the 26 week period will not affect the employee’s entitlement to accident pay.
(c) For a period of less than one week,accident pay (as defined) will be calculated on a pro rata basis.
20.4 When not entitled to payment
An employee will not be entitled to any payment under this clause in respect of any period of paid annual leave or long service leave,or for any paid public holiday.
20.5 Return to work
If an employee entitled to accident pay under this clause returns to work on reduced hours or modified duties,the amount of accident pay due will be reduced by any amounts paid for the performance of such work.
In the event that an employee receives a lump sum payment in lieu of weekly payments under the applicable workers’compensation legislation,the liability of the employer to pay accident pay will cease from the date the employee receives that payment.
20.7 Damages independent of the Acts
Where the employee recovers damages from the employer or from a third party in respect of the said injury independently of the applicable workers’compensation legislation,such employee will be liable to repay to the employer the amount of accident pay which the employer has paid under this clause and the employee will not be entitled to any further accident pay thereafter.
20.8 Casual employees
For a casual employee,the weekly payment referred to in clause 20.1(a) will be calculated using the employee’s average weekly ordinary hours with the employer over the previous 12 months or,if the employee has been employed for less than 12 months by the employer,the employee’s average weekly ordinary hours over the period of employment with the employer. The weekly payment will include casual loading but will not include over award payments.
B. This determination comes into operation on and from 15 October 2015.
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