Commonwealth Numbered Acts

COMMONWEALTH EMPLOYEES' REHABILITATION AND COMPENSATION ACT 1988 No. 75 of 1988 - SECT 19

19. (1) This section applies to an employee who is incapacitated for work as a
result of an injury, other than an employee to whom section 20, 21 or 22
applies.

(2) Subject to this Part, the Commission is liable to pay compensation to the
employee in respect of the injury, for each of the first 45 weeks (whether
consecutive or otherwise) during which the employee is incapacitated, of an
amount calculated under the formula:
NWE - AE where:
  NWE     is the amount of the employee's normal weekly earnings; and

  AE      is the amount per week (if any) that the employee is able to earn
in
suitable employment.

(3) Subject to this Part, the Commission is liable to pay to the employee, in
respect of the injury, for each week during which the employee is
incapacitated, other than a week referred to in subsection (2), compensation:

   (a)  where the employee is not employed during that week-of an amount equal
        to 75% of his or her normal weekly earnings less the amount (if any)
        that he or she was able to earn during that week in
        suitable employment;

   (b)  where the employee is employed for 25% or less of his or her normal
        weekly hours during that week-of an amount that, when added to the
        amount of earnings payable to the employee for that employment,
        results in an amount equal to 80% of his or her
        normal weekly earnings;

   (c)  where the employee is employed for more than 25% but not more than 50%
        of his or her normal weekly hours during that week-of an amount that,
        when added to the amount of earnings payable to the employee for that
        employment, results in an amount equal to 85% of his or her
        normal weekly earnings;

   (d)  where the employee is employed for more than 50% but not more than 75%
        of his or her normal weekly hours during that week-of an amount that,
        when added to the amount of earnings payable to the employee for that
        employment, results in an amount equal to 90% of his or her
        normal weekly earnings;

   (e)  where the employee is employed for more than 75% but less than 100% of
        his or her normal weekly hours during that week-of an amount that,
        when added to the amount of earnings payable to the employee for that
        employment, results in an amount equal to 95% of his or her
        normal weekly earnings; and

   (f)  where the employee is employed for 100% of his or her normal weekly
        hours during that week-of an amount that, when added to the amount of
        earnings payable to the employee for that employment, results in an
        amount equal to 100% of his or her normal weekly earnings.

(4) In determining, for the purposes of subsections (2) and (3), the amount
per week that an employee is able to earn in suitable employment, the
Commission shall have regard to:

   (a)  where the employee is in employment-the amount per week that the
        employee is earning in that employment;

   (b)  where, after becoming incapacitated for work, the employee received an
        offer of suitable employment and failed to accept that offer-the
        amount per week that the employee would be earning in that employment
        if he or she were engaged in that employment;

   (c)  where, after becoming incapacitated for work, the employee received an
        offer of suitable employment and, having accepted that offer, failed
        to engage, or to continue to engage, in that employment-the amount per
        week that the employee would be earning in that employment if he or
        she were engaged in that employment;

   (d)  where, after becoming incapacitated for work, the employee received an
        offer of suitable employment on condition that the employee completed
        a reasonable rehabilitation or vocational retraining program and the
        employee failed to fulfil that condition-the amount that the employee
        would be earning in that employment if he or she were engaged in that
        employment;

   (e)  where, after becoming incapacitated for work, the employee has failed
        to seek suitable employment-the amount per week that, having regard to
        the state of the labour-market at the relevant time, the employee
        could reasonably be expected to earn in such employment if he or she
        were engaged in such employment;

   (f)  where paragraph (b), (c), (d) or (e) applies to the employee-whether
        the employee's failure to accept an offer of employment, to engage, or
        to continue to engage, in employment, to undertake, or to complete, a
        rehabilitation or vocational retraining program or to seek employment,
        as the case may be, was, in the Commission's opinion, reasonable in
        all the circumstances; and

   (g)  any other matter that the Commission considers relevant.

(5) Where an amount of compensation calculated under subsection (3) exceeds
150% of the amount called the "Average Weekly Ordinary Time Earnings of
Full-time Adults", as published from time to time by the Australian
Statistician, the amount so calculated shall be reduced by an amount equal to
the excess.

(6) Where an amount of compensation calculated under paragraph (3) (a) is less
than the minimum earnings, the amount so calculated shall be increased by an
amount equal to the difference between that amount and the minimum earnings.

(7) For the purposes of subsection (6), the minimum earnings of an employee
shall be taken to be:

   (a)  $202, or, if subsection (8) or (9) applies in relation to the
        employee, the sum of $202 and the amount or amounts required to be
        added under whichever of those subsections applies; or

   (b)  an amount equal to 90% of the employee's normal weekly earnings;
        whichever is less.

(8) If there are prescribed persons wholly or mainly dependent on the
employee, there shall be added to the amount of $202 specified in paragraph
(7) (a) the amount of $50.

(9) If there are prescribed children in relation to whom this Act applies
(whether born before, on or after the date of the injury) wholly or mainly
dependent on the employee, there shall be added to the amount of $202
specified in paragraph (7) (a) the amount of $25 for each of those children,
but an amount shall not be so added for a child in relation to any period
before the date of birth of that child.

(10) If a prescribed child is:

   (a)  a prescribed person in relation to the employee; and

   (b)  the only prescribed person who is wholly or mainly dependent on the
        employee; subsection (9) does not apply in relation to that child.

(11) If 2 or more prescribed children are each:

   (a)  a prescribed person in relation to the employee; and

   (b)  wholly or mainly dependent on the employee; subsection (8) applies in
        relation to one of those children and subsection (9) applies in
        relation to the remainder of those children.
(12) In this section, "prescribed person", in relation to an employee, means:

   (a)  the spouse of the employee; or

   (b)  any of the following persons, being a person who is 16 or more:

        (i)    the father, mother, step-father, step-mother, father-in-law,
               mother-in-law, grandfather, grandmother, son, daughter,
               step-son, step-daughter, grandson, granddaughter, brother,
               sister, half-brother or half-sister of the employee;

        (ii)   a person in relation to whom the employee stands in the
               position of a parent or who stands in the position of a parent
               to the employee;

        (iii)  a person (other than the spouse of the employee or a person
               referred to in subparagraph (i) or (ii)) who is wholly or
               mainly maintained by the employee and has the care of a
               prescribed child, being a child who is wholly or mainly
               dependent on the employee.
(13) For the purposes of the definition of "prescribed person" in subsection
(12), relationships referred to in that definition shall be taken to include
illegitimate relationships and relationships by adoption and relationships
that are traced through illegitimate relationships or relationships by
adoption.
(14) For the purposes of the definition of "prescribed person" in subsection
(12), a person who has the care of a child referred to in subparagraph (12)
(b) (iii) shall not be taken not to be wholly or mainly maintained by an
employee merely because the employee pays remuneration to the person for
caring for that child.