AN120484 – Saddlery, Leather, Canvas and Plastic Material Workers' (State) Award
(a) An employer shall pay and an employee shall be entitled to receive accident pay in accordance with this clause.
(b) Definitions - For the purposes of this clause and subject to the terms thereof the words hereunder shall bear the respective definitions set out hereunder:
(i) Workers' Compensation Act - For the purposes of this clause Workers' Compensation Act shall mean the Workers' Compensation Act 1987, from time to time effective.
(ii) Injury - For the purposes of this clause injury shall mean personal injury arising out of or in the course of employment (including, but without limiting the generality of the foregoing, any disease to which the provisions of the Act apply and any injury received during a daily or other periodic journey or any other journey to which the provisions of the Act apply or during any ordinary recess referred to in the Act), resulting in incapacity and for which compensation is being paid.
(iii) Accident Pay -
(1) In the case of an employee who is or is deemed to be totally incapacitated within the meaning of the said Act, accident 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 said Act for the week in question and, on the other hand, the total weekly award rate and weekly overaward payment if any, being paid to such employee at the date of the injury giving rise to the said payment 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 he/she had been performing his normal duties, provided that in making such calculation, any payment for overtime earnings, shift premiums, attendance bonus, incentive earnings, under any system of payment by results, fares and travelling time allowances, penalty rates and any other ancillary payments payable by the employer shall not be taken into account.
(2) Partial Incapacity - In the case of an employee partially incapacitated within the meaning of the said Act, accident pay means a weekly payment of an amount representing the difference between, on the one hand, the total amount of compensation paid to the employee during incapacity pursuant to the said Act for the week in question together with the average weekly amount the employee is earning or is able to earn in some suitable employment or business (as determined expressly or by implication by the Workers' Compensation Commission or as agreed between the parties) and on the other hand, the total weekly award rate and weekly overaward payment, if any, being paid to such employee 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 he/she had been performing his/her normal duties, provided that in making such calculation any payment for overtime earnings, shift premiums, attendance bonus, incentive earnings under any system of payment by results, fares and travelling time allowances, penalty rates and any other ancillary payments payable by the employer shall not be taken into account.
The total weekly award rate and weekly overaward payment abovementioned shall be the same as that applying for a total incapacity provided that where an employee receives a weekly payment of compensation under the said Act and subsequently such payment is reduced pursuant to the said Act, such reduction shall not increase the liability of the employer to increase the amount of accident pay in respect of that injury.
(3) Payment for Part of a Week - Where an employee receives accident pay and such pay is payable for incapacity for part of a week the amount shall be a direct pro rata.
(c) Qualification for Payment - Always subject to the terms of this clause, an employee covered by this award shall, upon receiving payment of compensation and continuing to receive such payment in respect of a weekly incapacity within the meaning of the said Act, be paid accident pay by his/her employer who is liable to pay compensation under the said Act, which said liability by the employer for accident pay may be discharged by another person on his behalf, provided that -
(i) Accident pay shall only be payable to an employee whilst such employee remains in employment of the employer by whom he/she was employed at the time of the incapacity and then only for such period as he/she receives a weekly payment under the said Act. Provided that if an employee on partial incapacity cannot obtain suitable employment from his/her employer but such alternative employment is available with another employer then the relevant amount of accident pay shall still be payable. Provided further that in the case of termination by an employer of an employee who is incapacitated and receiving accident pay, accident pay shall continue to apply subject to the provisions of this clause except in those cases where -
(1) The termination is due to serious and/or wilful misconduct on the part of the employee; or
(2) arises from a declaration of liquidation of the company in which case the employee's entitlement shall be determined by the appropriate State legislation.
In order to qualify for the continuance of accident pay on termination an employee shall, if required, provide evidence to his/her employer of the continuing payment of weekly workers' compensation payments.
(ii) Accident pay shall not apply to any incapacity occurring during the first four weeks of employment unless such incapacity continues beyond the first four weeks and then subject to paragraph (iii) of this subclause, and to the maximum period of payment prescribed elsewhere herein, accident pay shall apply only to the period of incapacity after the first four weeks.
(iii) Accident pay shall not apply in respect of any injury during the first five normal working days of incapacity.
(iv) 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 his/her entitlement to accident pay under this award.
(d) Maximum Period of Payment - The maximum period or aggregate of periods of accident pay to be made by an employer shall be a total of thirty-nine weeks.
(e) Absence on other Paid Leave - An employee shall not be entitled to the payment of accident pay in respect of any period of paid annual leave, or long service leave, or for any paid public holiday in accordance with the appropriate award provisions.
(f) Notice of Injury - An employee upon receiving an injury for which he/she claims to be entitled to receive accident pay shall give notice in writing of the said injury to his/her employer and of its manner of happening as soon as practicable after the happening thereof and shall provide in writing all other information as the employer may reasonably require.
(g) Furnishing of Evidence - An employee who has suffered any injury for which he is receiving payment or payments for incapacity, in accordance with the provisions of the said Act, shall furnish evidence to the employer from time to time as required by the employer of such payment and compliance with this obligation shall be a condition precedent to any entitlement under this clause.
Any employee who is receiving or who has received accident pay in respect of any injury shall, if required by the employer or other person on his/her behalf, authorise his/her 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 said Act.
(h) Medical Examination - Nothing in this clause shall in any way be taken as restricting or removing the employer's rights under the said Act to require the employee to submit himself/herself for examination by a legally qualified medical practitioner, provided and paid by the employer, and if he/she refuses to submit himself/herself to such examination or in any way obstructs the same, his/her right to receive or continue to receive accident pay shall be suspended in like manner as his/her right to compensation is suspended pursuant to the said Act until such examination has taken place.
Where in accordance with the said Act a medical referee gives a certificate as to the condition of the employee and his/her 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 work.
Where an employer is unable to provide work of the nature stipulated by the medical referee an employee shall take all reasonable steps to obtain such work with another employer and in the event of his/her failure to do so payment of accident pay shall cease.
(j) Redemption of Weekly Payments - Where there is a redemption of weekly compensation payments by the payment under the said Act of a lump sum the employer's liability to pay accident pay shall cease as from the date of such redemption.
(k) Civil Damages Claim -
(i) An employee receiving or who has received accident pay shall advise his/her employer of any action he/she may institute or any claim he/she may make for damages. Further the employee shall, if required, authorise such employer to obtain information as to the progress of such action or claim from the employee's solicitors and shall, if required, provide an authority to the employer entitling the employer to a charge upon any monies payable pursuant to any verdict or settlement on that injury.
(ii) Where an employee obtains a verdict for damages against his/her employer or is paid an amount of money in settlement of any claim for damages that he/she has made against his/her employer in respect of any injury for which he/she 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 immediately upon payment of such verdict or amount in settlement shall pay to his/her 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 or is paid an amount of money in settlement of any claim for damages that he/she has made against such person in respect of any injury for which he/she 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 his/her employer any amount of accident pay already received in respect of that injury by which the verdict has not been so reduced.
(l) Insurance Against Liability - Nothing in this clause shall require an employer to insure against his/her liability for accident pay, nor shall it affect the right of an employer to terminate the employment of the employee.
(m) Variations in Compensation Rates - Any changes in compensation rates under the said Act shall not increase the amount of accident pay above the amount that would have been payable had the rates of compensation remained unchanged.
(n) Death of Employee - All rights to accident pay shall cease on the death of an employee.
(o) Disputes - In the event of any dispute arising as to the entitlement of an employee to payment of accident pay in accordance with the provisions of this award the matter shall, if any party to this award so requires, be referred to the Industrial Committee.
(p) Safety Regulations - Without prejudice to the terms of this clause the union shall use its best endeavours to have its members carry out all statutory and other regulations applicable to the employment of such members and to further carry out any orders relating to the preservation of safety given by or on behalf of any employer of its members.
