New South Wales Consolidated Acts New South Wales Consolidated Acts(cf former s 9 (8)-(13))
(1) Subject to this section, a reference in this Division to the current weekly wage rate of a worker, being a worker who is incapacitated for work and who, immediately before being incapacitated:(a) was remunerated under an award fixing or providing for the fixing of a rate for a weekly or longer period (not being a worker who belongs to a class of workers prescribed by the regulations for the purposes of paragraph (c))-is, at any time during the incapacity, a reference to the rate of remuneration under that award at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated,(b) was an employee of the Crown or of an employer constituted by an Act and was remunerated, pursuant to a determination made by the Crown or made under the Public Service Act 1979 or under the provisions of any other Act, being a determination fixing or providing for the fixing of a rate for a weekly or longer period-is, at any time during that incapacity, a reference to the rate of remuneration under that determination at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated,(c) belonged to a class of workers prescribed by the regulations for the purposes of this paragraph-is a reference to a rate calculated in accordance with a formula (or calculated in any other manner) prescribed by the regulations in respect of that class of workers for the purposes of this paragraph, or(d) was not a worker or employee to whom paragraph (a), (b) or (c) applies-is a reference to the prescribed proportion of the worker’s average weekly earnings in respect of work being performed by the worker immediately before becoming incapacitated or, if a specific rate is prescribed by the regulations for the purposes of this paragraph, is a reference to that rate.
(2) If a regulation made for the purposes of subsection (1) (c) or (5) (b) contains a reference to an award or a provision of an award and the award or provision, in so far as it relates to a particular worker, is subsequently varied or replaced, the reference shall, on and from the date of the variation or replacement, be deemed, in relation to that worker, to be a reference to:(a) the award or provision as so varied, or(b) the award or provision which replaced that award or provision,as the case may be.
(3) For the purposes of subsection (1) (a), if a worker is not remunerated in respect of the work performed by the worker under an award fixing or providing for the fixing of a rate for a weekly or longer period but:(a) there is such an award under which the worker would be entitled to be remunerated if the worker performed that work under a contract of service-the worker shall be deemed to be remunerated in respect of that work under that lastmentioned award, or(b) although paragraph (a) does not apply, there is an award fixing or providing for the fixing of a rate for a weekly or longer period which, having regard to the nature of that work, it would be fair and reasonable to apply to and in respect of that work-the worker shall be deemed to be remunerated in respect of that work under that lastmentioned award.
(4) Subject to subsections (6) and (7), if the amount of a part-time worker’s current weekly wage rate, as determined under subsection (1), exceeds the worker’s average weekly earnings, a reference in this Division to that worker’s current weekly wage rate is a reference to those average weekly earnings.
(5) In subsection (4), the reference to a part-time worker:(a) includes a reference to a worker belonging to a class of workers prescribed by the regulations for the purposes of this paragraph, and(b) does not include a reference to a worker belonging to a class of workers prescribed by the regulations for the purposes of this paragraph.
(6) In determining a worker’s current weekly wage rate in accordance with subsection (1) (a) or (b) or (4), any amount paid or payable to the worker:(a) in respect of shift work, overtime or other penalty rates,(b) under the terms of the worker’s employment in excess of the ordinary rate fixed by any award for the work performed by the worker, or(c) to cover special expenses incurred by the worker because of the nature of the worker’s employment,is, except in so far as the regulations otherwise provide, to be disregarded.
(7) A reference in this Division to the current weekly wage rate of a worker, being a worker who:(a) at the time of the worker’s injury, was employed under 2 or more contracts of service under which the worker worked at one time for one employer and at another time for another employer, and(b) is incapacitated from performing work under any 2 or more of those contracts,is a reference:(c) except as provided in paragraph (d)-to the sum of the current weekly wage rates applicable to the worker under subsection (1) or (4) as a worker employed by each of the employers by whom the worker was employed under the contracts referred to in paragraph (b), or(d) where the total of the worker’s ordinary weekly hours of work under the contracts referred to in paragraph (b) exceeded 40-to an amount that bears to the sum referred to in paragraph (c) the same proportion as 40 bears to that total,and the current weekly wage rate of such a worker, as determined under this section, shall be deemed to be the worker’s current weekly wage rate as a worker in the employment of the employer for whom the worker was working at the time of the worker’s injury to the exclusion of any other employers.
(7A) If the application of subsection (7) to an injured worker results in the current weekly wage rate of the worker being less than the rate that would be determined under this section if regard was only had to employment with the employer for whom the worker was working at the time of the worker’s injury, a reference to the current weekly wage rate of the worker is, despite that subsection, a reference to that higher rate.
(8) In this section:
"appropriate period", for the purposes of the calculation of “average weekly earnings” in relation to a worker, means the period of 12 months or, if the worker has been employed with the employer concerned for less than 12 months at the time of the injury, that lesser period.
"average weekly earnings", in relation to a worker, means the average weekly earnings of the worker determined in accordance with section 43 during the appropriate period before whichever of the following times produces the higher average weekly earnings:(a) the time of the injury concerned,(b) the time at which the relevant weekly payment of compensation is due,with the determination under paragraph (b) made on the assumption that the worker had been earning the wage or salary 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.
"award" means:(a) an award in force under the Industrial Arbitration Act 1940 or an award or industrial agreement, within the meaning of the Conciliation and Arbitration Act 1904 of the Commonwealth, that is in force,(b) an industrial agreement or enterprise agreement in force under the Industrial Arbitration Act 1940 or the Industrial Relations Act 1991 ,(c) an agreement made under the Public Service Act 1979 or an agreement with respect to wages or salaries entered into under the provisions of any other Act by an employer constituted by that other Act with any association or organisation representing any group or class of employees, or(d) an award made by the Coal Industry Tribunal under the Coal Industry Act 1946 ,(e) (without limiting the above) includes a State industrial instrument,and includes any such award, industrial agreement or other agreement or instrument as from time to time amended.
"prescribed proportion" means 80 per cent or, if the regulations prescribe some other percentage for the purposes of this section, that other percentage.