The Law Handbook 2024

942 Section 10: Accidents, insurance and compensation Weekly payments Weekly payments are payable if, as a result of an injury, a worker has ‘no current work capacity’ or has ‘current work capacity’ (see definitions, s 3). In general terms, a worker has ‘no current work capacity’ if the person is unable to work in the pre-injury employment or ‘suitable employment’. A worker has ‘current work capacity’ if the person is not able to return to pre-injury employment, but is able to return to work in ‘suitable employment’. The WIRC Act specifies the weekly amounts that a worker is entitled to receive during periods of incapacity. It is important to note that these rates are reconsidered on 1 July of each year and are payable to all workers who are entitled to weekly payments, no matter when the injury occurred after 1 July 2014. Many workers are entitled to receive make-up pay, being the difference between weekly payments and normal weekly wage for six months or more, depending on their conditions of employment. Legal or trade union advice should be sought on this point. Subject to the restrictions given below, there is no fixed maximum amount of weekly payments under the WIRC Act. Payments cease when a worker reaches ‘retirement age’, which is defined as the date at which that worker attains the age when they are entitled to a Commonwealth age pension under the Social Security Act 1991 (Cth). A worker who is injured after reaching retirement age is entitled to up to 130 weeks of payments (s 169). Compensation may also be paid for a limited period for a worker becoming incapacitated after retirement age as a result of an earlier injury (s 170). Generally, an employer must provide suitable employment for a worker with a current work capacity – or the pre-injury employment for a worker who is no longer incapacitated – for a period of up to 52 weeks from the start of the worker’s incapacity for work (see generally ss 96, 103). The employer can be fined for not doing this. Injuries prior to 1 July 2014 Legal or union advice should be sought on the present rates and entitlements to weekly payments if a worker was injured in the above period. Pre-injury average weekly earnings (PIAWE) Weekly payments are based on the worker’s pre‑injury earnings and, where applicable, on their post-injury earnings. Pre-injury earnings These are defined as the worker’s ‘pre-injury average weekly earnings’ ( PIAWE ) over the previous 12 months, subject to some restrictions and a maximum weekly amount (s 154). This means the base rate of pay plus piece rates/commissions, salary sacrifice amounts and any non-cash benefits such as the use of a car. Amounts paid by way of overtime and shift allowances can also be taken into account for the calculation of weekly payments for the first 52 weeks of incapacity. Post-injury earnings These are defined by ‘current weekly earnings’, which are the weekly wages, including the monetary value of any non-pecuniary benefit or advantage a worker earns during a week (s 152). Twice state average weekly earnings ( AWE ) is currently $2660. Entitlements after 1 July 2014 The following paragraphs are applicable to workers entitled to weekly payments as a result of an injury after 1 July 2014 and are payable after that date. Similar rates will also be paid to workers who are entitled after 4 April 2010 to weekly payments for injuries pursuant to the 1985 Act. Provided the worker continues to have some incapacity for work and complies with the other provisions of the WIRC Act, generally there will be an entitlement of up to 130 weeks. However, those weekly paymentsmay continue in some circumstances (see ‘After the second entitlement period (ss 163, 164, 165)’, below). First entitlement period (s 161) The first 13 weekly payments are: • No current work capacity: 95 per cent of PIAWE (pre-injury average weekly earnings) or twice AWE (average weekly earnings), whichever is the lesser. • With a current work capacity: As above less current weekly earnings. Second entitlement period (s 162) The weekly payments from the 14th week up to and including the 130th week are: • No current work capacity: 80 per cent of PIAWE or twice AWE, whichever is the lesser.