AP825433 - Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Clerical and Administrative Employees Award 2003
PART 8 - ACCIDENT PAY
31. ACCIDENT PAY
This clause only applies within the State of Victoria.
Definitions
In respect of this clause the following definitions shall apply:
31.1 Accident pay
31.1.1 Total incapacity
In the case of an employee who is or is deemed to be totally incapacitated within the meaning of the Accident Compensation Act (hereinafter referred to as the Act) and arising from an injury covered by this clause means a weekly payment of an amount representing the difference between the total amount of compensation paid under Sections 93, 93A, 93B, or 93C of the Act, whichever is applicable, for the week in question and the total 38 hour weekly rate mid weekly rate and weekly over-award payment for a day worker which would have been payable under this award for the employee's normal classification of work for the week in question if they had been performing their normal duties; provided that such latter rate shall exclude additional remuneration by way of attendance bonus payments, shift premiums, overtime payments, fares and travelling allowance, special rates or other similar payments.
31.1.2 Partial incapacity
31.1.2(a) In the case of an employee who is or is deemed to be partially incapacitated within the meaning of the Accident Compensation Act and arising from an injury covered by this clause, means a weekly payment of an amount representing the difference between the total amount of compensation paid under Sections 93, 93A, 93B, or 93C of the Act, whichever is applicable, for the period in question together with the 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 self insurer or as agreed between the parties) and the total 38 hour weekly rate and weekly over award payment for a day worker which would have been payable under this award for the employee's normal classification or work for the week in question they had been performing their normal duties provided that such latter rate shall exclude additional remuneration by way of attendance bonus payments, shift premiums, overtime payments, fares and travelling allowance, special rates or other similar payments.
31.1.2(b) The total 38 hour weekly award rate and weekly over-award payment abovementioned shall be the same as that applying for a total incapacity provided that where an employee receives a weekly payment under this Section and subsequently such payment is reduced pursuant to Sections 112 or 114 of the Act, such reduction will not increase the liability of the Company to increase the amount of accident pay in respect of that injury.
31.1.2(c) For the purpose of the calculation of the total 38 hour weekly award rate and weekly over-award payment in 32.1.1 payments made to an employee arising from a production incentive earnings scheme (whether arising from a payment by result, task or bonus scheme or however titled) shall not be taken into account; provided that where an employee is not in receipt of any form of weekly over-award payment, production incentive bonus payments will be taken into account and the form and amount of such payments to be included in the rate of accident pay shall be determined by agreement between the Company and the Union.
31.1.3 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.
31.2 Injury
Injury shall be given the same meaning and application as applying under the Accident Compensation Act, and no injury shall result in the application of accident pay unless an entitlement exists under the Act.
31.3 Workers' Compensation Act
Means the Workers' Compensation Act 1958, as amended from time to time in the State of Victoria.
31.4 Accident Compensation Act
Means the Accident Compensation Act 1985 as amended from time to time in the State of Victoria.
31.5 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 Act be paid accident pay by the employer who is liable to pay compensation under the Act, which said liability by the employer for accident pay may be discharged by another person on the employers behalf. Provided that:
31.5.1 Accident pay shall only be payable by the Company to an employee if the incapacity occurred whilst working for the Company and whilst such employee remains in the Company's employment and then for such period as they receive a weekly payment under the Act. Provided that if an employee on partial incapacity cannot obtain suitable employment from the Company but such alternative employment is available with another employer then the relevant amount of accident pay shall still be payable.
31.5.1(a) Provided further that in the case of the termination by the Company 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:
31.5.1(a)(i) the termination is due to serious and wilful misconduct on the part of the employee; or
31.5.1(a)(ii) arises from a declaration of liquidation of the Company in which case the employee's entitlement in the absence of agreement shall be referred to the Australian Industrial Relations Commission.
31.5.1(b) In order to qualify for the continuance of accident pay on termination an employee shall if required provide evidence to the Company of the continuing payment of weekly worker’s compensation payments.
31.5.2 Exclusions
31.5.2(a) Accident pay shall not apply to any incapacity occurring during the first two weeks of employment unless such incapacity continues beyond the first two weeks, and then, subject to 31.5.3 and to the maximum period of payment prescribed elsewhere herein, accident pay shall apply only to the period of incapacity after the first two weeks.
31.5.2(b) Provided that as to industrial diseases contracted by a gradual process or injuries subject to recurrence, aggravation acceleration, exacerbation or deterioration (as provided in Section 5 of the Act) such injuries or diseases shall not be subject to accident pay unless the employee has been employed with the employer at the time of the incapacity for a minimum period of one month.
31.5.3 Accident pay shall not apply in respect of any injury during the first seven consecutive days including non-working days of incapacity.
31.5.4 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 Company may require the employee to forfeit his entitlement to accident pay under this clause.
31.5.5 Where an entitlement to accident make-up pay arises under this award any reference to the Workers Compensation Act 1958, shall be deemed to include a reference to the Accident Compensation Act 1985 and any reference to the Accident Compensation Act 1985, shall be deemed to include a reference to the Workers Compensation Act 1958.
31.6 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 39 weeks for any one injury as defined in 31.2.
31.7 Absences on other paid leave
An employee shall not be entitled to payment of accident pay in respect of any period of other paid leave of absence.
31.8 Notice of injury
An employee upon receiving an injury for which they claim to be entitled to receive accident pay shall give notice in writing of the said injury to the Company as soon as reasonably practicable after the occurrence. Provided that such notice may be given by a representative of the employee.
31.9 Medical examination
31.9.1 In order to receive entitlement to accident pay an employee shall conform to the requirements of the Act as to medical examination.
31.9.2 Where in accordance with the 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 Company 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.
31.10 Redemption/settlement of weekly payments
Where there is a redemption or settlement of weekly compensation under the Act, the Company's liability to pay accident pay shall cease as from the date of such redemption or settlement, as the case may be.
31.11 Civil damages claims
31.11.1 An employee receiving or who has received accident pay shall advise the Company of any action they may institute or any claim he may make for damages. Further the employee shall, if requested, provide an authority to the Company entitling it to a charge any money payable pursuant to any judgement or settlement of that injury.
31.11.2 Where an employee obtains a judgement or settlement for damages in respect of an injury for which they have received accident pay, the Company's liability to pay accident pay shall cease from the date of such judgement or settlement; provided that if the judgement or settlement for damages is not reduced either in whole or part by the amount of accident pay made by the Company the employee shall pay to the Company any amount of accident pay already received in respect of that injury by which the judgement or settlement has not been so reduced.
31.11.3 Where an employee obtains a judgement or settlement for damages against a person other than the Company in respect of an injury or which they have received accident pay, the Company's liability to pay accident pay shall cease from the date of such judgement or settlement; provided that if the judgement or settlement for damages is not reduced either in whole or part by the amount of accident pay made by the Company, the employee shall pay to the Company any amount of accident pay already received in respect of that injury by which the judgement of settlement has not been so reduced.
31.12 Insurance against liability
Nothing in this award shall require the Company to insure against liability for accident pay.
31.13 Variation in compensation rates
Any change in compensation rates under the Act shall not increase the amount of accident pay above the amount that would have been payable had the rates of compensation remained unchanged.
