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

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

FAST FOOD INDUSTRY AWARD 2010
[MA000003]

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

An employee in receipt of weekly payments under the provisions of applicable workers’compensation legislation will be entitled to receive accident pay from the employer subject to the following conditions and limitations:

20.1 Definitions

(a) Accident pay means a weekly payment made to an employee by the employer that is the difference between the weekly amount of compensation the employee is entitled to receive pursuant to the applicable workers’compensation legislation and the employee’s weekly wage payable under this Award for the classification of work if the employee had been performing their normal duties (not including over award payments,shift loadings,overtime,attendance bonus payments,special rates,fares and travelling allowance or other similar payments).

(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

(a) 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. The maximum period of accident pay is 26 weeks.

(b) Accident pay shall not apply:

(i) In respect of an injury during the first seven consecutive days (including non-working days) of incapacity.

(ii) To any incapacity occurring during the first two weeks of employment unless such incapacity continues beyond the first two weeks.

20.3 Calculation of the period

(a) The 26 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 26 week period.

(b) The entitlement to accident pay continues on termination of an employee’s employment where such termination:

(i) is by the employer other than for reasons 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 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.

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.

20.6 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 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,shift loadings,overtime,attendance bonus payments,special rates,fares and travelling allowance or other similar payments.

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

 1  [2015] FWCFB 3523

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