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

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

VEHICLE MANUFACTURING,REPAIR,SERVICES AND RETAIL AWARD 2010
[MA000089]

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 22 as follows:

22. Accident pay

22.1 Definitions

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 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 injury (not including over award payments).

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

22.2 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.

(b) An employee will only be entitled to payment under this clause while the employee remains in employment of the employer. However,an employer must not terminate the employment of the employee to avoid any payment under this clause.

22.3 Notice of injury

When an employee receives an injury for which the employee claims to be entitled to payment under this clause,the employee shall give notice in writing of the injury to the employer as soon as reasonably practicable after receiving the injury. Notice can be given by a representative of the employee.

22.4 Maximum period

The maximum period or aggregate of periods of accident pay to be made by an employer shall be 26 weeks for any one injury. The 26 week period commences from the first day of incapacity for work,which may be subsequent to the date of injury.

22.5 Pro rata payments

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

22.6 Return to work

If an employee entitled to accident pay under this clause returns to work on reduced hours or to perform modified duties,the amount of accident pay due will be reduced by any amounts paid for the performance of such work.

22.7 When not entitled to payment

(a) 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.

(b) An employee will not be entitled to any payment under this clause in respect of any injury during the first five normal working days of incapacity.

(c) An employee will not be entitled to any payment under this clause for any incapacity occurring during the first three weeks of employment,unless such incapacity continues beyond the first three weeks of employment. If the incapacity continues beyond the first three weeks of employment then the provisions of this clause (clause 22) will apply to the period of incapacity after the first three weeks.

(d) An employee will not be entitled to any payment under this clause for industrial diseases contracted by gradual process,or injuries subject to recurrence,aggravation or acceleration unless the employee has been employed with the employer at the time of the incapacity for a minimum period of one month.

22.8 Medical examination

(a) In order to receive accident pay an employee shall conform to the requirements of the applicable workers’compensation legislation relating to medical examination.

(b) If:

(i) a medical referee gives a certificate in accordance with the applicable workers’compensation legislation as to the condition of the employee and fitness for work,or specifies work for which the employee is fit;and

(ii) this work is made available by the employer;and

(iii) the employee refuses the work or fails to commence the work;

the provisions of this clause (clause 22) will cease to apply to the employee from the date of refusal or failure to commence the work.

22.9 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.

22.10 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.

22.11 When payments cease

All rights to payment under this clause will cease on the death of an employee.

22.12 Changes to rates in workers’compensation legislation

The amount of accident pay payable under this clause shall not increase in the event that there are any changes to compensation rates under the applicable workers’compensation legislation.

22.13 Engagement of employee

Upon commencement of employment,an employee may be required to declare all workers’compensation claims made in the previous five years. In the event of false or inaccurate information being deliberately and knowingly declared the employer may require the employee to forfeit entitlement to payment under this clause.

22.14 Casual employees

For a casual employee the weekly payment referred to in clause 22.1(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.

22.15 No obligation to take out insurance

Nothing in this clause requires an employer to insure against liability for the payment of benefits under this clause.

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

 1  [2015] FWCFB 3523

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