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ANMF Proposed Accident Make-Up Pay clause –draft only

23/11/16

1.Accident Make Up Pay

1.1An Employee receiving compensation for incapacity pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 will be entitled to Accident Make Up Pay from The Emplyer (including pro rata for any part of a week).

1.2Accident Make Up Pay means:

(i)In the case of an Employee with no current work capacity, a payment equal to the pre-injury average weekly earnings the Employee would ordinarily receive had the Employee been performing their normal duties and hours of work (includng shift and weekend penalties), less the amount of weekly compensation.

(ii)In the case of an Employee with a current work capacity, a payment equal to the pre-injury average weekly earnings the Employee would ordinarily receive (includng shift and weekend penalties), had the Employee been performing their normal duties and hours of work less the amount of weekly compensation and less the average amount the Employee is earning in suitable employment.

1.3Maximum payment

(i)An Employee will be entitled to Accident Make Up Pay to a total of 100 percent of pre-injury average weekly earnings for a period of 26 weeks.

(ii)An Employee will be entitled to Accident Make Up Pay to a total of 95 percent of pre-injury average weekly earnings for a further period of 13 weeks.

(iii)The maximum period or aggregate of periods of accident make-up pay to be made by The Emploer will be a total of 39 weeks for any compensable incapacity.

1.4Accident Make Up Pay will not apply in some circumstances

Accident Make Up Pay in accordance with this clause will not apply:

(a)in respect of any injury during the first five normal working days of incapacity, except where the Employee contracts an infectious disease for which the Employee is entitled to receive workers compensation in which case accident make-up pay will apply from the first day of the incapacity;

(b)to any incapacity occurring during the first two weeks of employment unless that incapacity continues beyond the first two weeks in which case accident make-up pay will apply only to the period of incapacity after the first two weeks;

(c)during any period when the Employee fails to comply with the requirements of the WIRC Act with regard to examination by a medical practitioner;

(d)where the injury for which the Employee is receiving weekly compensation payments is a pre-existing injury that work has contributed to by way of recurrence, aggravation, acceleration, exacerbation or deterioration, and the Employee failed to disclose the injury on engagement:

  1. following a request to do so by the Employer; and
  2. the Employer providing the Employee details of the requirements of the position; and
  3. where the Employee knew, or ought to have known, that the nature of the injury, may impact on the ability of the Employee to undertake the work;

(e)where the injury subject to recurrence, aggravation or acceleration as provided under workers’ compensation legislation or industrial diseases contracted by a gradual process, unless the Employee has been employed with the Employer at the time of the incapacity for a minimum period of one month;

(f)where in accordance with the WIRC Act 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 that work is made available by an Employer but not commenced by an Employee;

(g)when the claim has been ceased or redeemed in accordance with the WIRC Act;

(h)in respect of any paid leave of absence.

1.5Civil damage claims

(i)An Employee receiving or who received accident make-up pay must advise the Employer of any action or claim the Employee may institute for damages. If requested, the Employee will provide an authority to the Employer entitling the Employer to a charge upon any money payable pursuant to any judgment or settlement on that injury.

(ii)Where an Employee obtains a judgment or settlement for damages in respect of an injury for which the Employee received accident make-up pay, the Employer’s liability to pay accident make-up pay ceases from the date of such judgment or settlement where the damages are not reduced (in whole or part) by the accident make-up pay paid by the Employer. Where damages from a judgment or settlement are not reduced to take into account accident make-up pay paid by the Employer (in whole or part), the Employee must repay the Employer the accident make-up pay to the extent the damages were not reduced.

(iii)Where an Employee obtains a judgment or settlement for damages against a person other than the Employer in respect of an injury for which the Employee received accident make-up pay, the Employer’s liability to pay accident make-up pay will cease from the date of such judgment or settlement where the damages are not reduced (in whole or part) by the amount of accident pay made by the Employer. The Employee must pay to her/his Employer any amount of accident pay already received in respect of that injury by which the judgment or settlement has not been so reduced.