AT832792 - Retail and Wholesale Industry - SDAEA Wholesale Grocers Award 2003 [Transitional]
31.1 The employer in the State of Victoria shall pay, and an employee in the said State shall be entitled to, receive accident pay in accordance with this clause.
31.2 Definitions
The words hereunder shall bear the respective definitions set out herein:
31.3 Accident pay
31.3.1 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 section 93A or 93B of the Act (as appropriate for the particular circumstances of the claim) for the week in question and the total weekly rate of 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/she had been performing his/her normal duties; provided that such latter rate shall be deemed to exclude additional remuneration by way of attendance, bonus payments, shift premiums, overtime payments, fares and travelling allowance, the allowance prescribed in clause 13 - Provision of protective clothing, and special rates or other similar payments.
31.3.2 Partial incapacity
In the case of an employee who is or 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 section 93A or 93B of the Act (as appropriate for the particular circumstances of the claim) for the period 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 pursuant to the Accident Compensation Act or as agreed between the parties) and the total weekly rate of 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/she had been performing his/her normal duties; provided that such latter rate shall be deemed to exclude additional remuneration by way of attendance bonus payment, shift premiums, overtime payments, fares and travelling allowance, the allowance prescribed in clause 13 - Provision of protective clothing, and special rates or other similar payments.
31.3.3 The total weekly award rate of payment abovementioned shall be the same as that applying for a total incapacity provided that where an employee receives a weekly payment under this clause and subsequently such payment is reduced pursuant to section 114 and 114A of the Act such reduction will not increase the weekly amount of accident pay for which the employer is liable in respect of that injury.
31.3.4 For the purposes of the calculation of the total weekly award rate of payment in 31.3.1 and 31.3.2, 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; provided that where an employee is not in receipt of any form of weekly overaward 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.
31.3.5 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.
31.4 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.
31.5 Accident Compensation Act
Means the Accident Compensation Act 1985, as amended from time to time, of the State of Victoria.
31.6 Qualifications for payment
31.6.1 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 his/her 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 his/her behalf provided that:
31.6.1(a) Accident pay shall only be payable to an employee whilst such employee remains in the 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 Act. Provided that if an employee who is receiving a weekly payment for partial incapacity cannot obtain suitable employment from his/her employer but such suitable employment is available with another employer then the relevant amount of accident pay shall still be payable.
31.6.2 Provided further that in the case of the 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:
31.6.2(a) the termination is due to serious and/or wilful misconduct on the part of the employee; or
31.6.2(b) arises from a declaration of liquidation of the company in which case the employee’s entitlement, in the absence of agreement shall be determined by the appropriate State legislation.
31.6.3 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 worker’s compensation payment.
31.6.3(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 31.6.3(b) 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. Provided that as to industrial diseases contracted by a gradual process or injuries which are a recurrence, aggravation, acceleration, exacerbation or deterioration (as provided in section 5(1) 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.
31.6.3(b) Accident pay shall not apply in respect of any injury during the first five normal working days of incapacity.
31.6.3(c) An employee on engagement may be required to declare all worker’s 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 clause.
31.7 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 31.4.
31.8 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.
31.9 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 as soon as reasonably practicable after the occurrence thereof, provided that such notice may be given by a representative of the employee.
31.10 Medical examination
31.10.1 In order to receive entitlement to accident pay an employee shall conform to the requirements of the Act as to medical examination.
31.10.2 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 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.
31.11 Civil damages claims
31.11.1 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 employer shall, if requested, provide an authority to the employer entitling the employer to a charge upon any money payable pursuant to any judgement or settlement on that injury.
31.11.2 Where an employee obtains a verdict for damages in respect of an 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.
31.11.3 Where an employee obtains a verdict for damages against a person other than the employer in respect of an 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 his/her employer any amount of accident pay already received in respect of that injury by which the verdict has not been so reduced.
31.12 Insurance against liability
Nothing in this award shall require an employer to insure against his/her liability for accident pay.
31.13 Variations in compensation rates
Any changes 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 remain unchanged.
31.14 Death of an employee
All rights to accident pay shall cease on the death of an employee.
