AN170068 – Mobile Crane Hire Award

AN170068 – Mobile Crane Hire Award

5. ACCIDENT PAY

(a) Entitlement

(i) An employee's entitlement to accident make up pay for a work related injury shall be subject to the employee suffering an injury for which weekly compensation payments are payable pursuant to the relevant Workers' Compensation legislation.

(ii) An employer shall pay accident make up payment during the incapacity of the employee, within the meaning of the relevant legislation.

(iii) The liability of the employer under this Clause shall arise at the date of the injury in respect to which compensation is payable under the relevant legislation and shall continue whilst the employer is liable to pay compensation up to an aggregate maximum of 52 weeks payment for any one injury.

(iv) (1) Accident pay shall only be payable to an employee whilst in the employment of the employer by whom the employee was employed at the time of the incapacity.

(2) Provided that in the case of termination of an employee who is incapacitated and receiving accident make up pay, such payment shall continue to apply except where:-

(A) the termination is due to serious and/or wilful misconduct; or

(B) arises from a declaration of liquidation/insolvency of the employer in which case the employee's entitlement shall be considered by the parties to the award.

(3) To qualify for the continuation of accident make-up pay on termination, an employee shall if required provide evidence to the employer of the continuation of weekly compensation payments.

(v) Accident make up pay shall not apply in respect of any injury during the first five ordinary working days of incapacity.

(vi) Accident make up pay shall not apply to any incapacity occurring during the first three weeks of employment unless such incapacity extends beyond the first three weeks and then, subject to the above, accident make up pay shall 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, aggravations or accelerations shall not be subject to accident make up pay unless the employee has been employed at the time of the incapacity for a minimum period of one month.

(vii) An employee on engagement 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 the entitlement to accident make up pay provided by this Clause.

(b) Absences on Other Paid Leave

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

Upon receiving an injury for which an employee claims to be entitled to receive accident pay, such employee 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.

(d) Medical Examination

In order to receive entitlement to accident pay, an employee shall conform to the requirements of the relevant legislation as to medical examination. Where, in accordance with the relevant 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.

(e) Redemption of Weekly Payments

Where there is a redemption of weekly compensation payments under the relevant legislation, the employer's liability to pay accident pay shall cease as from the date of such redemption.

(f) 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.

(g) Insurance Against Liability

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

(h) Variations in Compensation Rates

Any changes in compensation rates under the relevant legislation shall not increase the amount of accident pay above the amount that would have been payable had the rates of compensation remained unchanged.

(i) Death of Employee

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

(j) Committee to Review

In the event of any dispute arising as to the entitlement of an employee to payment of accident pay, the matter shall either:

(i) be dealt with by Clause 1 - Settlement of disputes of Part VI – COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION; or

(ii) if the parties to this award agree, be referred to a Committee of Review, which shall comprise two representatives of employers and two representatives of employees together with a chairperson mutually agreed upon or as appointed by the President of the Commission. The decision of the Committee shall be final and accepted by all parties.

(k) Definitions

(i) ‘Accident Make Up Payment’ means a weekly payment being the difference between the weekly compensation paid to the employee pursuant to the relevant Workers' Compensation legislation and the wages the employee would have received for ordinary hours worked if the employee had been performing normal duties. This shall exclude additional payments such as attendance, bonus payments, shift penalties, overtime payments, fares and travelling allowance, site allowance, or other such rates.

(ii) ‘Part of a Week Payment of Accident Make Up’ shall mean a direct pro-rata of one week's ordinary earnings.

(iii) ‘Injury’ shall be given the same meaning and application as applying under the relevant Workers' Compensation legislation and no injury shall result in the application of make up pay unless an entitlement exists under such legislation.

(iv) ‘Relevant Workers' Compensation legislation’ and ‘relevant legislation’ shall mean the Workers Rehabilitation and Compensation Act 1988, as amended.