DETERMINATION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards –transitional provisions
(AM2014/190)

LABOUR MARKET ASSISTANCE INDUSTRY AWARD 2010
[MA000099]

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 18 as follows:

18. Accident pay

18.1 For the purpose 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,or required to be paid to an employee pursuant to the applicable workers’compensation legislation and the employee’s ordinary rate of pay (not including over award payments,shift loadings or overtime).

(b) Injury will be given the same meaning and application as applying under the applicable workers’compensation legislation covering the employer.

18.2 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 39 weeks.

18.3 Calculation of the period of accident pay

(a) The 39 week period commences from the first day of incapacity for work,which may be subsequent to 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 39 week period.

(b) Entitlement to accident pay ceases on termination of the employee’s employment,except where such termination:

(i) is by the employer other than for reason of the employee’s serious and/or wilful misconduct;or

(ii) arises from a declaration of bankruptcy or liquidation of the employer,in which case the employee’s entitlement in the absence of agreement will be referred to the Fair Work Commission to determine.

(c) For a period of less than one week,accident pay (as defined) will be calculated on a pro rata basis.

18.4 When not entitled to accident pay

An employee will not be entitled to any payment under this clause in respect of the following.

(a) Any period of paid annual leave or long service leave,or for any paid public holiday.

(b) Any injury during the first five normal working days of incapacity.

(c) Any incapacity occurring during the first two weeks of employment unless such incapacity continues beyond the first two weeks.

(d) Where in accordance with the applicable workers’compensation legislation a medical practitioner provides information to an employer of an employee’s fitness for work or specifies work for which an employee has a capacity and such work is made available by an employer but not commenced by an employee.

(e) Industrial diseases contracted by a gradual process or injuries subject to recurrence,aggravation or acceleration shall not be subject to the accident pay unless the employee has been employed with the employer at the time of the incapacity for a minimum period of one month.

(f) Where an employee receives a weekly payment under this section and subsequently such payment is reduced pursuant to the applicable workers’compensation legislation,such reduction will not render the employer liable to increase the amount of accident pay in respect of that injury.

18.5 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.

18.6 Redemptions

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 as herein provided will cease from the date the employee receives that payment.

18.7 Casual employees

For a casual employee,the weekly payment referred to in clause 18.1(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.

18.8 Other

This clause does not operate to diminish an employee’s entitlement to compensation payments under the applicable workers’compensation legislation.

B. This determination comes into operation on and from 15 October 2015.

 1  [2015] FWCFB 3523

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