New South Wales Consolidated Acts

WORKERS COMPENSATION ACT 1987 - SECT 43

43 Computation of average weekly earnings

(cf former s 14)

(1) For the purposes of the provisions of this Act relating to “earnings” and “average weekly earnings” of a worker, the following rules shall be observed:

(a) Average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the worker was being remunerated, except that if, because of the shortness of the time during which the worker has been in the employment of the employer or the terms of the employment, it is impracticable at the date of the injury to compute the rate of remuneration, regard may be had to the average weekly amount which, during the 12 months previous to the injury, was being earned:

(i) by a person in the same grade, employed at the same work, by the same employer, or

(ii) if there is no person so employed, by a person in the same grade employed in the same class of employment, and in the same district.

(b) If the worker has entered into concurrent contracts of service with 2 or more employers under which he or she worked at one time for one such employer, and at another time for another such employer, the worker’s average weekly earnings shall be computed as if the worker’s earnings under all such contracts were earnings in the employment of the employer for whom the worker was working at the time of the injury.

(c) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the worker was employed at the time of the injury, uninterrupted by absence from work due to illness, strikes, lockouts, bad weather or any other unavoidable cause.

(d) If the employer has been accustomed to pay to the worker a sum to cover any special expenses incurred by the worker because of the nature of the employment, the sum so paid shall not be reckoned as part of the earnings.

(e) The average weekly earnings of a casual worker, that is to say a worker whose contracts of service are mainly contracts for separate periods each of which is of not more than 5 working days in the same industry, shall be computed as if the worker’s earnings under all his or her contracts of service, for a period of 12 months preceding the injury or any shorter period during which the worker may have been engaged in the industry, were earnings in the employment of the employer for whom the worker was working at the time of the injury.

(f) If a worker is a worker to whom paragraph (e) applies or has been absent from work by reason of illness, strikes, lockouts, bad weather, intermittency of employment, slackness of trade or any other reasonable cause, the average weekly earnings of the worker shall, notwithstanding the foregoing provisions of this section:

(i) in the case of a worker who is 21 years of age or over, be deemed to be not less than the full wage for a full normal working week of that worker or the basic wage, whichever is the greater, and

(ii) in the case of any other worker, be deemed to be not less than the full wage for a full normal working week of that worker.

(1A) Any relevant rules provided by this section are also to be observed in determining the average weekly amount that a worker would be able to earn in suitable employment for the purposes of section 40. If there is an ordinary weekly rate of pay generally applicable to employment of that kind under industrial law, the average weekly amount is to be determined by reference to that rate of pay together with any other likely weekly payments which it would be proper to include in the circumstances of the case (such as overtime or other amounts payable under common industry or other practice).

(2) An employer shall, within 28 days, or such other period as may be prescribed, after a request from the employer’s injured worker, supply to the worker, in writing and in accordance with any requirements of the regulations:

(a) such details of the relevant award (“award” having the same meaning as in section 42) and such classification details as will enable the worker to determine his or her current weekly wage rate for the purposes of this Act,

(b) such details of the earnings of the worker as will enable the worker to determine his or her weekly earnings for the purposes of this Act, or

(c) such details of the earnings of at least 2 persons employed by the employer at the same or a comparable grade and work as the worker as will enable the worker to determine, for the purposes of section 36, 37, 40 or 55, the amount which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or some comparable employment.

(2A) An employer who fails without reasonable excuse to comply with subsection (2) is guilty of an offence.

Maximum penalty: 20 penalty units.

(2B) The regulations may make provision for or with respect to:

(a) the manner and form in which the details required to be provided by subsection (2) are to be provided, and

(b) requiring an employer to certify as to the completeness and accuracy of details provided by the employer for the purposes of subsection (2).

(3) In this section, "basic wage" means the basic wage in force under clause 15 of Schedule 4 to the Industrial Relations Act 1996 , at the time of the computation.