Entitlements and Workers' Compensation

The impact of WorkCover on entitlements is relatively complex.
To know more about how being on WorkCover works read AMIEU Newsletters: Injured at Work - What to Do; Making a Claim; Weekly Payments; and Medical and Like Services. This newsletter looks at how WorkCover relates to sick leave; annual leave; rostered days off (RDO); long service leave; and superannuation.

Before the claim is accepted

When your Injury Claim Form (and Certificate) is lodged there is up to 38 days before you get a letter accepting the claim. If you are off work in this time and you are not a Casual employee you may need to use your sick leave, annual leave or RDO to cover your income. If you have used this leave it should be reaccredited after the claim has been accepted.

After the claim is accepted - if you are completely off work

Your sick leave and annual leave do not accrue if you are completely off work and in receipt of WorkCover weekly payments. Depending on your EBA your RDO may continue to accumulate - check your Enterprise Bargaining Agreement if there is one in your workplace. Also, for the first 52 weeks of weekly payments the Accident Compensation system does not require any payment of superannuation by your employer.

After the claim is accepted - if you are back at work on suitable alternate or modified duties

If you are back at work doing full time (that is pre-injury hours) suitable alternate or modified duties; your entitlements accrue in the normal way. If, however, you are working limited hours (not working full hours) the sick leave and annual leave entitlements accrue on a pro rata basis. Also superannuation is paid only on the worked hours; not the WorkCover weekly payment part of your wages if you are on limited hours

After 52 weeks on WorkCover weekly payments

For superannuation entitlements the 5 April 2010 is a key date. If the work related injury or illness occurred before it the 9% superannuation payment only ever has to be paid on hours that are worked. However for the workers whose injury occurred on or after 5th April 2010 and who have no capacity to work after 52 weeks, 9% of weekly payments is paid into superannuation. This continues while the person is in receipt of weekly payments.

Long Service Leave

Long Service is not impacted on by many workers compensation claims. Most people recover from the injury or illness before it has any impact on our long service leave because the Long Service Leave Act says:

An employee's employment is to be regarded as being continuous despite.....

(b)    any absence from work on account of illness or injury;

However, if you are off for more than 48 weeks in a year, it is not counted. Of course the entitlement to long service leave depends on the numbers of years employed. What the Act says with regards this is:

Any absence from work of not more than 48 weeks in any year on account of illness or injury is to be counted as part of the period of an employee's employment, but any absence for that reason in excess of that period is not to be counted.

When long service leave is paid the level of pay is calculated at the ‘ordinary time rate of earnings’ the Act also spells out what this means when you are on WorkCover. It says:

If an employee is—

(a)    working in suitable employment (within the meaning of section 5 of the Accident Compensation Act 1985); or

(b)    absent from work because of a workplace illness or injury and in receipt of any compensation in the form of weekly payments from the Authority for that illness or injury—

his or her normal weekly hours and ordinary time rate of pay are to be taken to be the greater of the following—

(c)    the employee's normal weekly hours and ordinary time rate of pay immediately before he or she takes long service leave;

(d)    the employee's normal weekly hours and ordinary time rate of pay immediately before he or she developed the relevant illness or suffered the relevant injury.

Put simply a person on WorkCover who goes off on long service leave should not be disadvantaged with regards the rate of pay on long service leave.

Gwynnyth Evans
Health & Safety/WorkCover Organiser