AP780630CRV - Entertainment and Broadcasting Industry - Theatre Managers - Cinema - Award 1998

SCHEDULE C - ACCIDENT MAKE UP PAY

NEW SOUTH WALES, AUSTRALIAN CAPITAL TERRITORY AND VICTORIA

1. ARRANGEMENT

This Schedule is arranged as follows:

Subject matter	Clause number
Arrangement	1
Area of operation	2
Definitions	3
Qualifications for payment	4
Maximum period of payment	5
Insurance against liability	6
Death of employee	7
Variation in compensation rates	8
Absence on paid leave	9
Notice of injury	10
Furnishing of evidence	11
Medical examination	12
Damages claims	13
Redemption of weekly payments	14
Termination of employment	15
Interruption of work	16
Cessation of business	17
Casual employees	18
Safety regulations	19
Disputes	20
Leave reserved	21

2. AREA OF OPERATION

Notwithstanding clause 5, this schedule will only apply to the respondents to the award in the States of New South Wales and Victoria and the Australian Capital Territory.

3. DEFINITIONS

For the purpose of this schedule and subject to the terms of this schedule, the words hereunder will bear the respective definitions set out herein:

3.1 Workers' Compensation Act hereinafter referred to as The Act will mean, in New South Wales The Workers’ Compensation Act 1926 (as amended)in Victoria The Workers' Compensation Act 1958 (as amended) and in the Australian Capital Territory Workmen's Compensation Ordinance 1951 (as amended).

3.2 Injury will be given the same meaning and application as applying under the Act and no injury will result in the application of this schedule unless an entitlement exists under the Act.

3.3 Accident make-up pay

3.3.1 Total incapacity

In the case of an employee who is or is deemed to be totally incapacitated within the meaning of the Act and arising from an injury covered by this schedule, accident make-up means a weekly payment of an amount representing the difference between on the one hand, the total amount of compensation including other allowances paid to the employee during incapacity pursuant to the Act for the week in question and on the other hand, the total 38 hour weekly minimum rate of pay prescribed by this award in respect of the classification in which the employee was employed at the date of the injury giving rise to the said payments of the compensation together with or less as the case may be any variation in award rates which would have been applicable to the classification of such employee for the week in question if the employee had been performing their normal duties.

3.3.2 Partial incapacity

In the case of an employee who is or is deemed to be partially incapacitated within the meaning of the Act and arising from an injury covered by this schedule, accident make-up pay means a weekly payment of an amount representing the difference between on the one hand, the total amount of compensation including other allowances paid to the employee during incapacity pursuant to the Act for the week in question together during incapacity pursuant to the Act for the week in question together with the average weekly amount the employee is earning in suitable employment as defined in this appendix and on the other hand the total 40 hour weekly minimum rate of pay prescribed by this award in respect of the classification in which the employee was employed at the date of the injury giving rise to the said payments of compensation together with or less as the case may be, any variation in award rates which would have been applicable to the classification of such employee for the week in question if the employee had been performing their normal duties.

3.4 Suitable employment will mean employment with the employer who employed the employee at the time of injury and as determined expressly or by implication by the Workers' Compensation Board or as agreed between the parties or by a legally qualified medical practitioner provided by and paid for by the employer.

3.5 Normal working days will mean and refer to those days part of any week, which comprise the ordinary weekly hours of duty as prescribed in 20 - Hours of work and time off of this award.

3.6 Injury or gradual onset will mean the definition contained in the respective Acts.

3.7 Payment for part of a week will mean: Where an employee is receiving accident make-up pay and accident make-up pay is payable for incapacity for part of a week the amount so payable will bear the same ratio to accident make-up pay for the full week as to normal working time during such partial period of incapacity bears to the worker's full normal working week.

4. QUALIFICATIONS FOR PAYMENT

Always subject to the terms of this schedule an employee covered by this schedule will, upon receiving payment of compensation and continuing to receive such payment in respect of a weekly incapacity within the meaning of the Act be paid accident pay by the employer who is liable to pay compensation under the Act, (which liability by the employer for accident pay may be discharged by another person on their behalf);

Provided that:

4.1 Accident pay will only be payable to an employee whilst such employee remains in the employment of the employer by whom they were employed at the time of injury giving rise to incapacity and then only for such period as the employee receives a weekly payment under the Act.

4.2 Accident pay will not apply in respect of any injury during the first five normal working days of incapacity.

4.3 Accident pay will not be payable in respect of an injury sustained in the first two weeks of an employee's employment by an employer.

4.4 Accident pay will not be payable in respect of any injury of gradual onset as defined, unless the employee has been employed by the employer at the time of the incapacity for a minimum period of three months.

4.5 Accident pay will cease from the date of the refusal or the failure of an employee partially incapacitated to commence and/or perform suitable employment as defined.

4.6 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 or knowingly declared, the employee will forfeit their entitlement to accident pay under this schedule.

5. MAXIMUM PERIOD OF PAYMENT

Accident pay under this schedule will be payable for a maximum period or aggregate of periods in no case exceeding a total of 26 weeks in respect of incapacity arising from any one injury as defined in 3.2 hereof.

6. INSURANCE AGAINST LIABILITY

Nothing in this schedule will require an employee to insure against their liability for accident pay.

7. DEATH OF EMPLOYEE

The right to be paid accident pay will terminate on the death of an employee entitled thereto and no sum will be payable to the legal personal representative, next-of-kin, assignee or dependant of the deceased employee, with the exception of accident pay accrued up to the time of death.

8. VARIATION IN COMPENSATION RATES

In the event of a change in the rate of compensation payable under the Act to an employee the amount of accident pay payable to that employee may increase or
decrease in accordance with the provisions of 3.3 hereof.

9. ABSENCE ON OTHER PAID LEAVE

9.1 An employee will not be entitled to accident pay in respect of any period of paid annual leave or long service leave or for any public holiday prescribed by the award.

9.2 An employer will not cause an employee to proceed on any paid leave for the sole purpose of avoiding the payment of accident pay.

10. NOTICE OF INJURY

An employee on receiving an injury for which the employee claims to be entitled to receive accident pay will give notice in writing of the said injury to their employer and of its manner of happening as soon as practicable after the happening thereof and will provide in writing all other information as the employer may reasonably require.

11. FURNISHING OF EVIDENCE

11.1 An employee who has suffered any injury for which the employer is receiving payment or payments for incapacity in accordance with the provisions of the respective Act will furnish evidence to the employer from time to time as required by the employer of such payment and compliance with this obligation will be a condition precedent to any entitlement under this schedule.

11.2 An employee who is receiving or who has received accident pay in respect of an injury will if required by the employer or other person on their behalf authorise their employer to obtain any information required by such employer concerning such injury or compensation payable in respect thereof from the insurance company that is liable to pay compensation to such employee pursuant to the respective Act.

12. MEDICAL EXAMINATION

Nothing in this schedule will in any way be taken as restricting or removing the employer's right to require the employee to submit themselves to examination by a legally qualified practitioner chosen by the employer and provided and paid by the employer, and if the employee refuses to submit themself to such examination or in any way obstructs the same, their right to receive or continue to receive accident pay will be suspended until such examination has taken place.

13. DAMAGES CLAIMS

13.1 An employee receiving or who has received accident pay will advise their employer of any action they may institute or any claim they may make for damages. Further, the employee will, if required, authorise such employer to obtain information as to the progress of such action or claim from their employee's solicitors and will if required, provide an authority to the employer entitling the employer to a charge on any money payable pursuant to any verdict or settlement on that injury.

13.2 Where an employee obtains a verdict for damages against their employer or is paid an amount of money in settlement of any claim for damages that the employee has made against their employer in respect of any injury for which the employee has received accident pay, the employer's liability to pay accident pay will cease from the date of such verdict provided that if the verdict for damages is not reduced either in whole or in part by the amount of accident pay made by the employer the employee immediately upon payment of such verdict or amount in settlement will pay to their employer any amount of accident pay already received in respect of that injury by which the verdict has not been so reduced.

13.3 Where an employee obtains a verdict for damages against a person other than the employer or is paid an amount of money in settlement of any claim for damages that the employee has made against such person in respect of any injury for which they have received accident pay the employer's liability to pay accident pay will cease from the date of such verdict; provided that if the verdict for damages is not reduced in whole or in part by the amount of accident pay made by the employer the employee will pay to their employer any amount of accident pay already received in respect of that injury by which the verdict has not been so reduced.

13.4 Where an employee has a right to action against a third party in respect of any injury and the employee rejects the employer's legal advice to take such action then the employer's liability under this schedule will cease from the date of such rejection.

14. REDEMPTION OF WEEKLY PAYMENTS

Where there is a redemption of weekly compensation payments by the payment, under the respective Act, of a lump sum the employer's liability to pay accident pay will cease as from the date of such redemption.

15. TERMINATION OF EMPLOYMENT

15.1 Nothing in this schedule will affect the right of an employer to terminate the employment of an employee in accordance with 12 - Termination of Employment of the award and an employer's liability under this schedule will cease from the date of such termination.

15.2 Provided that no employee will be terminated for the purpose of avoiding payment of accident pay.

16. INTERRUPTION OF WORK

An employee will not be entitled to the payment of accident make-up pay during the period of any strike which occurs in the section or sections of a plant in which an employee is employed or is normally employed.

17. CESSATION OF BUSINESS

17.1 The liability of an employer to pay or make further payment of accident pay, pursuant to this schedule, will cease immediately upon the employer becoming insolvent or going into liquidation.

17.2 The liability of an employer to pay or make further payments of accident pay, pursuant to this schedule will cease immediately there is a termination of the contract of employment either as the result of a cessation of business or sale of a business.

18. CASUAL EMPLOYEES

Accident pay will not be payable to an employee engaged in accordance with the provisions of 20 - Hours of work and time off of the award.

19. SAFETY REGULATIONS

Nothing in this schedule will require an employer to pay accident pay pursuant to this schedule when an employee is in breach of a statutory safety regulation or is wilfully or knowingly in breach of a company safety regulation.

20. DISPUTES

Subject to the Workplace Relations Act 1996 in the event of any grievance, dispute or claim arising as to the entitlement of an employer to accident pay in accordance with the provisions of this schedule, the matter will be dealt with in accordance with the said Act or any amendment thereof.

21. LEAVE RESERVED

21.1 Leave is reserved to the parties, respondents to the award, to renegotiate this schedule not less than three months prior to the operative date of any comprehensive National Compensation Scheme.

21.2 Leave is reserved to any of the parties, respondents to the award, to apply for a variation of this appendix with respect to:

21.2.1 Any change in the Act;

21.2.2 Availability of appropriate insurance cover;

21.2.3 Any change in the general standard of maximum period of payment in respect to accident pay in the awards of the Australian Industrial Relations Commission.