AP822300 - Milk Treatment and Distribution Employees (A.C.T.) Award 2003
18.1 For the purposes of this clause and subject to the terms of this clause the words hereunder shall bear the respective definitions set out hereunder:
18.1.1 Accident pay
18.1.1(a) In the case of an employee who is or is deemed to be totally incapacitated within the meaning of the Workmen’s Compensation Ordinance 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 provisions of the Workmen’s Compensation Ordinance for the week in question and on the other hand the total 38 hour weekly award rate 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 providing further that in making such calculation any payment for overtime earnings, shift allowance, site disability allowances (that is any allowances that an employee does not normally receive when he/she is absent from work with pay), fares and travelling time allowances and any other ancillary payments payable by the employer shall not be taken into account; or
18.1.1(b) in the case of an employee partially incapacitated within the meaning of the Workmen’s Compensation Ordinance 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 Workmen’s Compensation Ordinance for the week in question together with the average weekly amount he/she is earning or is able to earn in some suitable employment or business and on the other hand the total 38 hour weekly award rate 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 providing that in making such calculation any payment for overtime earnings, shift allowance, site disability allowances (that is any allowances that an employee does not normally receive when he/she is absent from work with pay), fares and travelling time allowances and any other ancillary payments payable by the employer shall not be taken into account, subject to the proviso that where in respect of any claim for compensation pursuant to the Workmen’s Compensation Ordinance is awarded to him/her, an amount of weekly compensation or agreement is reached that the employee should receive a weekly amount of compensation less than the difference referred to in the Ordinance such an award or agreement will not operate to increase any liability of the employer to pay any higher amount of accident pay pursuant to this clause by reason of the employee receiving less than the said difference referred to in the Workmen’s Compensation Ordinance and for the purposes of this calculation the employee in such event shall be deemed to have recovered the full amount of the difference referred to in the Ordinance.
18.1.2 Injury
Means any injury within the meaning of the Workmen’s Compensation Ordinance resulting in incapacity and for which compensation is being paid within the meaning of the said Ordinance.
18.1.3 Incapacity
Incapacity shall have the same meaning as in the Workmen’s Compensation Ordinance.
18.1.4 Workmen’s Compensation Ordinance
The Workers’ Compensation Ordinance 1980 (as from time to time amended) of the Australian Capital Territory.
18.2 An employee covered by this clause shall upon receiving payment of compensation and continuing to receive such payment in respect of a weekly incapacity within the meaning of the Workmen’s Compensation Ordinance be paid accident pay by the employer who directly employs him/her under a contract of service or apprenticeship and is liable to pay compensation under the provisions of the said Workmen’s Compensation Ordinance, which said liability by the employer for accident pay may be discharged by another person on his/her behalf provided that:
18.2.1 Accident pay shall only be payable in respect of a period or periods of any incapacity of an employee while such employee remains in the employment of the employer who employed him/her at the time of the injury causing such period or periods of incapacity providing that where during a period where an employee is partially incapacitated with the meaning of the Workmen’s Compensation Ordinance or during a period where an employee is deemed to be totally incapacitated pursuant to the Ordinance, the employer who is liable to pay accident pay or who is paying accident pay to such injured employee is unable to provide suitable employment to such employee who thereupon obtains such suitable employment with another employer, then the employer shall continue to pay such accident pay as he/she would have paid or been liable to pay had the employee continued in his/her employment and, where applicable, as he/she would have paid if the provisions of Workmen’s Compensation Ordinance had not operated.
18.2.2 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.
18.2.3 An employee upon receiving any 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.
18.2.4 An employee who is receiving payment or payments for incapacity in accordance with the provisions of the Workmen’s Compensation Ordinance 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.
18.2.5 Nothing in this clause shall in any way be taken as restricting any right which the employer has under the Workmen’s Compensation Ordinance to require the employee to submit himself/herself to 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 Workmen’s Compensation Ordinance until such examination has taken place.
18.2.6 Where a medical referee within the meaning of the Workmen’s Compensation Ordinance gives a certificate as to the condition of the employee and his/her fitness for employment or specifies the kind of employment for which he/she is fit and the employer duly makes available to the employee the employment falling within the terms of such certificate and the employee refuses or fails to resume or perform the said employment so provided, then all payments in accordance with this clause shall cease and determine from the date of such refusal or failure to commence such duties.
18.2.7 Accident pay payable hereunder shall be payable for a maximum period or aggregate of periods in no case exceeding a total of 26 weeks for any incapacity in respect of any one injury suffered by an employee.
18.3 Where an employee is receiving accident pay and accident pay is payable for incapacity for part of a week the amount shall bear the same ratio to accident pay for a full week that normal working time during such part bears to the worker’s full normal working week.
18.4 Where there is a redemption of weekly payments by the payment under the Workmen’s Compensation Ordinance of a lump sum there shall be no further liability for accident pay under this clause in respect of an injury (for which weekly payments have been recovered) from the date of the said redemption.
18.5 Notwithstanding 18.6 and 18.7, any employee who is receiving or who has received accident pay in respect of an injury, shall furnish all relevant information to his/her employer concerning any action he/she may institute or any claim he/she may make for damages in respect of that injury and shall, if required, authorise such employer to obtain information as to the progress of such action or claim from the employee’s solicitors.
18.6 Where the employee obtains a verdict for damages against his/her employer or is paid an amount 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 compensation under the Workers’ Compensation Ordinance and accident pay he/she shall not be entitled to any further accident pay within the meaning of this clause and he/she shall be immediately liable upon payment to him/her or his/her agent of such verdict for damages or amount in settlement of a claim therefore to repay to his/her employer the amount of accident pay which the employer has paid in respect of the employee’s injury under this award.
18.7 Where the injury for which accident pay is paid was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof and the employee obtains a verdict for damages or is paid an amount of money in settlement of any claim for damages he/she has made against that other person, he/she shall immediately upon payment of such verdict or amount of money to him/her or his/her agent, repay to the employer the amount of accident pay which the employer had paid in respect of the employee’s injury and the employee shall not be entitled to any further accident pay.
18.8 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 Workers’ Compensation Ordinance.
18.9 Nothing in this clause shall require the employer to insure against his/her liability for accident pay.
18.10 In the event of the rates of compensation payable pursuant to the Workers’ Compensation Ordinance at the date of the insertion of this clause being varied at any time after the date hereof, such variations shall not operate so as to increase the amount of accident pay payable hereunder above the amount that would have been payable if such rates of compensation had not been varied.
18.11 If the compensation payable to an employee pursuant to the Workers’ Compensation Ordinance is reduced by any amount by reason of the fact that such employee is entitled to receive accident pay or is in receipt of accident pay then in calculating the amount of accident pay payable to such employee the compensation payable to such employee shall be deemed to be the compensation that he/she would have received if there had been no such reduction in compensation payments.
18.12 The right to be paid accident pay shall terminate on the death of an employee entitled thereto and no sum shall 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.
