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

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

MOBILE CRANE HIRING AWARD 2010
[MA000032]

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 in clause 3.1 the following new definitions:

Accident pay means a weekly payment made to an employee by the employer that is the difference between the amount of workers’compensation received by the employee and the employee’s minimum weekly rate (including industry allowance) prescribed by clause 13–Wage rates. Where the incapacity caused by the injury which leads to workers’compensation becoming payable is for a period less than one week,the payment is the difference between the amount of compensation and the employee’s minimum weekly rate (including industry allowance) for that period. The minimum weekly rate does not include over award payments,shift loadings,overtime,attendance payments,bonus payments,fares and travelling allowance,site allowance,or other such rates.

Injury,for the purposes of clause 14.5–Accident pay,has the same meaning as that contained in the applicable workers’compensation legislation covering the employer in respect of a claim made by the employee.

2. By inserting a new clause 14.5 as follows:

14.5 Accident pay

(a) This clause commences on 15 October 2015.

(b) The employer must pay an employee accident pay.

(c) Subject to the relevant workers’compensation claim being accepted,accident pay is payable from the time of the injury for which workers’compensation is paid for a total of 52 weeks in respect to the employee’s incapacity from that injury,regardless of whether the incapacity is in one continuous period or not.

(d) The termination of the employee’s employment whilst the employee is receiving accident pay will not affect the liability of the employer to pay accident pay in accordance with clause 14.5(c). Such payment shall continue to apply except where the termination is due to serious and/or wilful misconduct. To qualify for the continuation of accident pay on termination,an employee shall if required provide evidence to the employer of the continuation of weekly compensation payments.

(e) Where 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 of receipt of the lump sum by the employee.

(f) If an employer has a scheme for the payment of accident pay that contains provisions generally not less favourable to employees than the provisions of this clause,the employer may apply to the Fair Work Commission for that scheme to apply instead of this clause.

(g) For a casual employee the weekly payment as defined in clause 3.1 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 payments,bonus payments,fares and travelling allowance,site allowance,or other such rates.

(h) Accident pay will not apply in respect of any injury during the first five ordinary working days of incapacity.

(i) Accident pay will not apply to any incapacity occurring during the first three weeks of employment unless such incapacity extends beyond the first three weeks. In this situation accident pay will apply only to the period of incapacity after the first three weeks. Provided that industrial diseases contracted by gradual process or injuries subject to recurrence,aggravation or acceleration will not be subject to accident pay unless the employee has been employed at the time of the incapacity for a minimum period of one month.

(j) An employee on engagement may be required to declare all workers’compensation claims made in the previous five years and in the event of false or inaccurate information being deliberately and knowingly declared the employer may require the employee to forfeit the entitlement to accident pay provided by this clause.

(k) 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.

(l) For the avoidance of doubt,an employee will not be entitled to any payment under this clause in respect of any period of workers’compensation where the statutory payment for the period exceeds the amount the employee would have received for working ordinary time hours for the same period.

(m) An employee shall not be entitled to accident pay in respect of any period of other paid leave.

(n) An employee upon receiving an injury for which the employee claims to be entitled to receive accident pay shall give notice in writing of the said injury to the employer as soon as reasonably practicable after the occurrence;provided that such notice may be given by a representative of the employee.

(o) In order to receive accident pay,an employee shall conform to the requirements of the applicable workers’compensation legislation as to medical examination. Where,in accordance with the applicable workers’compensation legislation,a medical referee gives a certificate as to the condition of the employee and the employee’s fitness for work,or specifies work for which the employee is fit,and such work is made available by the employer and refused by the employee or the employee fails to commence the work,accident pay shall cease from the date of such refusal or failure to commence the work.

(p) Civil damages claim

(i) An employee receiving or who has received accident pay shall advise the employer of any action the employee may institute or any claim the employee may make for damages. Further,the employee shall,if requested,provided an authority to the employer entitling the employer to a charge upon any money payable pursuant to any verdict of settlement on that injury.

(ii) Where an employee obtains a verdict for damages in respect of an injury for which the employee has received accident pay the employer's liability to pay accident pay shall cease from the date of such verdict;provided that if the verdict for damages is not reduced either in whole or part by the amount of accident pay made by the employer,the employee shall pay to the employer any amount of accident pay already received in respect of that injury by which the verdict has not been so reduced.

(iii) Where an employee obtains a verdict for damages against a person other than the employer in respect of an injury for which the employee has received accident pay the employer's liability to pay accident pay shall cease from the date of such verdict;provided that if the verdict for damages is not reduced either in whole or part by the amount of accident pay made by the employer,the employee shall pay to the employer any amount of accident pay already received in respect of that injury by which the verdict has not been so reduced.

(q) Nothing in this award shall require an employer to insure against liability for accident pay.

(r) Any changes in compensation rates under the applicable workers’compensation legislation shall not increase the amount of accident pay above the amount that would have been payable had the rates of compensation remained unchanged.

(s) All rights to accident pay shall cease on the death of an employee.

(t) In the event of any dispute arising as to the entitlement of an employee to payment of accident pay,the matter shall be dealt with by clause 9—Dispute resolution.

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

 1  [2015] FWCFB 3523

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