AT773671CRV - Community Pharmacy Award 1998 [Transitional]
PART 9 - ACCIDENT PAY
34. ACCIDENT PAY
34.1 This clause shall only apply in Victoria
34.2 Definitions
The works hereunder shall bear the respective definitions set out herein -
34.2.1 Accident Pay
34.2.1(a) Total Incapacity - In the case of an employee who is or deemed to be totally incapacitated within the meaning of the relevant 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 the relevant Act for the week in question 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 of work for the week in question if he had been performing his or her normal duties; provided that such latter rate shall exclude additional remuneration by way of shift premiums, overtime payments, special rates or other similar payments.
34.2.1(b) Partial Incapacity - In the case of an employee who is or deemed to be partially incapacitated within the meaning of the relevant 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 the relevant Act for the period in question together with the average weekly amount the employee is earning or is able to earn in some suitable employment of business (as determined expressly or by implication by the Workers Compensation Board or as agreed between the parties) and the total 40 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 of work for the week in question if he had been performing his normal duties provided that such latter rate shall exclude additional remuneration by way of shift premiums, overtime payments, special rates or other similar payments.
34.2.1(b)(i) The total 40 hour weekly Award rate and weekly over award payment above-mentioned 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 the section 9.6(1) of the Act, such reduction will not increase the liability of the employer to increase the amount of accident pay in respect of that injury.
34.2.1(b)(ii) For purposes of the calculation of the total 40 hour weekly award rate and weekly over-award payment in paragraphs (i) and (ii) herein payments made to an employee arising from a production incentive earnings scheme (whether arising from a payment by results, task or bonus scheme or however titled) shall not be taken into account.
34.2.1(c) 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.
34.2.2 Injury
Injury shall be given the same meaning and application as applying under the relevant Act, and no injury shall result in the application of accident pay unless an entitlement exists under the Act.
34.2.3(a) 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.
34.2.3(b) The relevant Act shall mean either:
34.2.3(b)(i) Workers Compensation Act means the Workers Compensation Act 1985, as amended from time to time, of the State of Victoria; or
34.2.3(b)(ii) Accident Compensation Act 1985 means the Accident Compensation Act 1985, as amended from time to time, of the State of Victoria-
as the case may be.
34.3 Qualifications of 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 relevant Act be paid accident pay by his employer who is liable to pay compensation under the relevant Act, which said liability by the employer for Accident Pay may be discharged by another person on his behalf, provided that:-
34.3.1 Accident pay shall only be payable to an employee whilst such employee remains in the employment of the employer by whom he was employed at the time of the incapacity and then only for such period as he receives a weekly payment under the Act. Provided that if an employee on partial incapacity cannot obtain suitable employment from his employer but such alternative employment is available with another employer then the relevant amount of accident pay shall still be payable.
34.3.2 Provided further that in the case of the termination of employment by an employer of an employee who is incapacitated and who except for such termination would be entitled to accident pay, accident pay shall continue to apply subject to the provisions of this clause except in those cases where the termination is due to serious and/or wilful misconduct on the part of the employee.
34.3.3 In order to qualify for the continuance of accident pay on termination an employee shall if required provide evidence to his employer of the continuing payment of weekly workers compensation payments.
34.3.4 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 34.3.3 and for the maximum period of payment prescribed elsewhere herein, accident pay shall apply only to the period of incapacity after the first two weeks.
34.3.5 Provided that as to industrial diseases contracted by a gradual process or injuries subject to recurrence, aggravation or acceleration (as provided in the relevant 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.
34.3.6 Accident pay shall not apply in respect of any injury during the first five normal working days of incapacity.
34.3.7 Provided however that in the case of an employee who contracts an infectious disease in the course of duty and is entitled to receive Worker's Compensation therefor shall receive Accident Pay from the first day of the incapacity.
34.3.8 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 entitlement to accident pay under this clause.
34.4 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 34.2.2.
34.5 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.
34.6 Notice of injury
An employee upon receiving an injury for which he claims to be entitled to receive accident pay shall give notice in writing of the said injury to his employer as soon as reasonably practicable after the occurrence thereof; provided that such notice may be given by a representative of the employee.
34.7 Medical examination
34.7.1 In order to receive entitlement to accident pay an employee shall conform to the requirements of the relevant Act as to medical examination.
34.7.2 Where in accordance with the relevant Act a medical referee gives a certificate as to condition of the employee and his 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.
34.8 Redemption of weekly payments
Where there is a redemption of weekly compensation payments under the relevant Act the employer's liability to pay accident pay shall cease as from the date of such redemption.
34.9 Civil damages claims
34.9.1 An employee receiving or who has received accident pay shall advise his employer of any action he may institute or any claim he may make for damages. Further the employee shall, if required, provide an authority to the employer entitling the employer to a charge upon the money payable pursuant to any judgement or settlement on that injury.
34.9.2 Where an employee obtains a judgement or settlement for damages in respect of an injury for which he has received accident pay the employer'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 employer the employee shall pay to his employer any amount of accident pay already received in respect of that injury by which the judgement or settlement has not been so reduced.
34.9.3 Where an employee obtains a judgement or settlement for damages against a person other than the employer in respect of an injury for which he has received accident pay the employer'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 employer the employee shall pay to his employer any amount of accident pay already received in respect of that injury by which the judgement or settlement has not been so reduced.
34.10 Insurance against liability
Nothing in this award shall require an employer to insure against his liability for accident pay.
34.11 Variations in compensation rates
Any changes in compensation rates under the relevant Act shall not increase the amount of accident pay above the amount that would have been payable had the rates of compensation remained unchanged.
34.12 Death of employee
All rights to accident pay shall cease on the death of an employee.
34.13 Commencement
This clause shall only apply in respect of incapacity arising from any injury occurring or recurring on or after 16 December 1985.
