New South Wales Consolidated Acts

WORKERS COMPENSATION ACT 1987 - SECT 174AA

174AA Inclusion of trust distributions as wages

(1) A distribution to a worker as beneficiary under a trust constitutes "wages" for the purposes of section 174 to the extent that the distribution is in lieu of wages for work done for the trust by the worker.

(2) Work that constitutes the provision of services to the trustee of a trust or for the purposes of a business conducted by the trustee of a trust is "work done for the trust".

(3) This section applies in respect of distribution to a worker only if:

(a) there is a wages shortfall in respect of work done for the trust by the worker, and

(b) the distribution is made in the financial year in which the work is done or in the following financial year.

(4) There is a "wages shortfall" in respect of work done for the trust by the worker if the total wages (if any) paid or payable to the worker during the financial year in which the work is done is less than the wages that would be payable to the worker for that work if wages were payable at the market rate for that work (with the difference constituting the "wages shortfall" for the purposes of subsection (5)).

(5) If the distribution does not exceed the wages shortfall in respect of the work, the whole of the distribution is in lieu of wages for work done for the trust by the worker. Alternatively, if the distribution exceeds the wages shortfall in respect of the work, the distribution is in lieu of wages to the extent of the shortfall.

(6) For the purpose of determining whether a particular distribution is in lieu of wages for work done for the trust, the total wages (if any) paid or payable to the worker during a financial year for the work is taken to include any previous distribution (whether made during that financial year or the following financial year) that, by application of this section, is a distribution in lieu of wages for the same work.

(7) The "market rate" for work is the minimum wage rate applicable in respect of the work (or work that is comparable to the work):

(a) pursuant to an industrial instrument in force under a law of the State, or

(b) if paragraph (a) does not apply, pursuant to an industrial instrument in force under a law of the Commonwealth, or

(c) if neither paragraph (a) nor (b) applies, as provided by the WorkCover Guidelines or as determined and notified by the Authority in the particular case.