For entitlement periods for weekly payments from 5 April 2010, the Agent may determine not to take into account a voluntary reduction in CWE Current Weekly Earnings for reasons not related to the injury. That is, in certain situations where the worker has voluntarily removed themselves from employment or reduced their CWE are reduced for reasons not related to the injury, the Agent has discretion not to alter (increase) the worker’s weekly payments or not to pay compensation in the form of weekly payments.
Note: Before 5 April 2010, Agents could determine that a worker was capable of earning CWE whether they actually received CWE ( called ‘notional’ or ‘deemed’ earnings) and decrease weekly payments by that amount. The definition of ‘notional earnings’ was removed from the legislation with effect on and from 5 April 2010. From that date, a worker’s weekly payments may only be reduced by the worker’s CWE from employment.
Determine not to take into account a reduction in CWE
To assess whether to increase a worker’s weekly payments due to a reduction in their CWE or to no longer pay weekly payments, the Agent must be satisfied that the worker’s CWE have been reduced because the worker:
- no longer lives in Victoria
- had their employment terminated due to their misconduct
- resigned from their employment or reduced their work hours for reasons unrelated to their incapacity for work resulting from or materially contributed to by their work-related An injury/disease is work related if it arose out of or in the course of employment and the scope of employment. injury (except where the worker is entitled to weekly payments after the second entitlement period and there is a permitted fluctuation in hours or income in accordance with the legislation).
Circumstances where a determination can be made
A determination can be if a worker:
for reasons unconnected to their incapacity from their work-related injury such as for family issues or due to an unrelated illness.
- The worker was undertaking suitable employment but later decided to move to another State for personal reasons unrelated to their incapacity from their work-related injury.
- The worker had returned to work and was in receipt of CWE but reduced their work hours and therefore their CWE due to family reasons.
Circumstances where a determination cannot be made
A determination not to increase weekly payments due to decreased CWE or to no longer pay weekly payments cannot be made if the:
- worker has a serious injury
- employer has failed to provide suitable employment
- worker is complying with their RTW Return to Work obligations under the legislation.
A determination cannot be made for any of the following reasons:
- the worker reduces their hours or leaves their employment due to their incapacity from their work-related injury
- the employer reduces the worker's hours or terminates the worker's employment for reasons other than the worker’s misconduct
- the worker is receiving weekly payments after the second entitlement period and there is a fluctuation in hours or income
- the worker’s CWE are reduced because the worker is on paid annual leave or long service leave.
- The worker has been working in suitable employment and the employer later makes the worker redundant (the employer ceased to provide suitable employment).
- The award that applies to the worker's employment provides for an annual shut down and employees are required to take annual leave for that period (the employer has failed to provide suitable employment).
- The worker is undertaking suitable employment and the employer shuts down the plant due to a disruption beyond the control of the employer (the employer has ceased to provide suitable employment).
Agent notification requirements
Agents must provide written notice to the worker when a determination is made not to increase weekly payments due to a reduction in CWE. This notice is effective from the date upon which the worker's CWE were reduced or on any later date specified in the notice.
Agent determinations not to pay compensation in the form of weekly payments must follow the usual process for termination of weekly payments under the legislation.
Effective from 1 January 2010, the legislation provides that weekly payments are not to be reduced where a worker receives payment in lieu of accrued annual leave or long service leave.
Effective from 1 January 2010, if the current weekly earnings of a worker are reduced because the worker is on paid annual leave or long service leave, WorkSafe must not, by reason only of that reduction, alter the amount of compensation in the form of weekly payments.
WorkSafe and Agents should not advise employers whether a worker is entitled to the payment or accrual of leave. Agents should advise employers and workers to refer to the appropriate employment agreement and/or the Fair Work Act 2009 (Cth).
Payment in lieu of leave
Where workers receive a payment in lieu of accrued annual leave or long service leave their weekly payments will not be affected.
Where a worker takes paid leave
If a worker with a CWC Current Work Capacity takes paid annual leave or long service leave which causes a reduction in their current weekly earnings, weekly payments are not to be increased because of the CWE reduction and continue to be paid at the same rate as previously.
Access annual or long service leave or pay other types of leave
If a worker is receiving weekly payments, employers and workers are to be advised to refer to the Fair Work Act 2009 (Cth) and/or the applicable industrial award or agreement or arrangement before:
- accessing annual leave or long service or
- paying other types of leave.
Certificates of capacity
Workers who take leave while receiving weekly payments must provide Certificates of Capacity for the leave period to receive weekly payments whilst on leave.
Eligible working parents of children born or adopted from 1 January 2011 may be entitled to Commonwealth Government funded payments at the National Minimum Wage via their employer under the Paid Parental Leave (PPL Paid Parental Leave) Scheme.
There may be some instances where a worker who is receiving weekly payments may concurrently be eligible to receive PPL.
PPL payments not considered CWE
Payments made under the PPL scheme are not to be included in the definition of current weekly earnings and do not have any effect on a worker’s weekly payments.