Victorian Consolidated Legislation

Accident Compensation Act 1985 - SECT 5A

Pre-injury average weekly earnings

5A. Pre-injury average weekly earnings



(1) In this Act, the worker's pre-injury average weekly earnings means-

   (a)  the average weekly earnings during the 12 months preceding the
        relevant injury if the worker has been continuously employed by the
        same employer for that period; or

   (b)  the average weekly earnings for the period less than 12 months
        preceding the relevant injury for which the worker has been
        continuously employed by the same employer-

calculated at the worker's ordinary time rate of pay for the worker's normal
number of hours per week.

(1A) Despite subsection (1), the worker's pre-injury average weekly earnings
do not include, and are deemed to have never included, any employer
superannuation contribution.

(1AA) For the purposes of subsection (1), in calculating weekly payments of
pension under section 92B for the first 26 weeks after the death of the
worker, if-

   (a)  the worker, during the relevant period under subsection (1), worked
        paid overtime; and

   (b)  it is likely that the worker would have worked paid overtime at any
        time during that first 26 week period if not for the death of the
        worker resulting from, or materially contributed to, by an injury
        which entitles the worker's dependants to compensation-

an additional amount calculated under subsection (1C) is to be included in the
worker's pre-injury average weekly earnings.

(1AB) For the purposes of subsection (1), in calculating weekly payments of
pension under section 92B for the first 26 weeks after the death of the
worker, if-

   (a)  the worker, during the relevant period under subsection (1), carried
        out shift work that attracted a shift allowance; and

   (b)  it is likely that the worker would have carried out shift work
        attracting a shift allowance at any time during that first 26 week
        period if not for the death of the worker resulting from, or
        materially contributed to, by an injury which entitles the worker's
        dependants to compensation-

an additional amount calculated under subsection (1C) is to be included in the
worker's pre-injury average weekly earnings.

(1A) For the purposes of subsection (1), in calculating a worker's weekly
payments for the first 26 weeks under sections 93CA and 93CB, if-

   (a)  the worker, during the relevant period under subsection (1), worked
        paid overtime; and

   (b)  it is likely that the worker would have worked paid overtime at any
        time during that first 26 week period if not for the incapacity
        resulting from, or materially contributed to, by the relevant injury-

an additional amount calculated under subsection (1C) is to be included in the
worker's pre-injury average weekly earnings.

(1B) For the purposes of subsection (1), in calculating a worker's weekly
payments for the first 26 weeks under sections 93CA and 93CB, if-

   (a)  the worker, during the relevant period under subsection (1), carried
        out shift work that attracted a shift allowance; and

   (b)  it is likely that the worker would have carried out shift work
        attracting a shift allowance at any time during that first 26 week
        period if not for the incapacity resulting from, or materially
        contributed to, by the relevant injury-

an additional amount calculated under subsection (1C) is to be included in the
worker's pre-injury average weekly earnings. Note Subsections (1A) and (1B)
only apply with respect to a claim for weekly payments given, served or lodged
on or after the date of commencement of section 5 of the Accident Compensation
and Transport Accident Acts (Amendment) Act 2003-see section 261.

(1C) For the purposes of subsections (1AA), (1AB), (1A) and (1B), the
additional amount to be included is the amount derived from the following
formula-

where-

A is the total of the amounts paid or payable to the worker for overtime or as
a shift allowance (as the case may be) during the relevant period under
subsection (1);

B is the number of weeks in the relevant period under subsection (1) during
which the worker worked or was on annual, sick or other paid leave.

(1D) For the purposes of subsections (1AB), (1B) and (1C), a reference to a
shift allowance includes a reference to an allowance that was paid, or that is
payable, for weekend work.



(2) For the purposes of subsection (1), if a worker voluntarily (otherwise
than by reason of an incapacity resulting from an injury which entitled the
worker to compensation)-

   (a)  alters the normal number of hours worked; or

   (b)  alters the nature of the work performed with the result that a change
        occurs in the worker's ordinary time rate of pay-

any period before the alteration takes effect shall be disregarded in
calculating the worker's average weekly earnings.



(3) For the purposes of subsection (1), if the period for which the worker has
been employed by the same employer is less than four weeks, the worker's
pre-injury average weekly earnings may be calculated having regard to the
weekly earnings which the worker could reasonably have been expected to have
earned in that employment but for the relevant injury at the worker's ordinary
time rate of pay for the worker's normal number of hours per week.

(4) For the purposes of subsection (1), a worker's average weekly earnings
shall, subject to subsections (1AA), (1AB), (1A) and (1B), be calculated by
dividing the sum of amounts payable to the worker calculated at the worker's
ordinary time rate of pay for the normal number of hours per week by the
number of weeks during which the worker actually worked or was on annual, sick
or other paid leave.

(5) The worker's pre-injury average weekly earnings in relation to a worker
who-

   (a)  was not a full-time worker immediately before the injury; and

   (b)  at the time of the injury was seeking full-time employment; and

   (c)  had been predominantly a full-time worker during the 18 months
        preceding the injury-

shall be deemed to be the average weekly earnings of the worker while employed
in full-time employment during the 18 months preceding the injury.

(6) For the purposes of subsection (1)-

   (a)  if an ordinary time rate of pay is fixed for the worker's work under
        the terms of the worker's employment and in addition a piece rate is
        payable, the ordinary time rate of pay shall be deemed to be the sum
        of the ordinary time rate of pay and the average weekly piece rate
        payment received by the worker during the relevant period under
        subsection (1); and

   (b)  if an ordinary time rate of pay is not fixed for the worker's work
        under the terms of the worker's employment, the ordinary time rate of
        pay shall be deemed to be the average weekly rate earned by the worker
        during the relevant period under subsection (1); and

   (c)  if the normal number of work hours per week is fixed in any industrial
        award applicable to a worker, the worker's normal number of hours per
        week in that work shall be deemed to be the number so fixed; and

   (d)  if a normal number of work hours per week is not fixed for the
        worker's work under the terms of the worker's employment, the normal
        weekly number of hours shall be deemed to be the average weekly number
        of hours worked by the worker during the relevant period under
        subsection (1); and

   (e)  if the worker is employed by more than one employer at the time of the
        injury, the worker's average weekly earnings shall be calculated-

   (i)  if the worker works for one employer for at least the normal number of
        hours per week fixed in any industrial award applicable to the worker,
        with reference to that work; or

   (ii) if there is no applicable industrial award but the worker works for
        one employer for at least the prescribed number of hours per week,
        with reference to that work; or

   (iii) if the worker works for more than one employer for at least the
        normal number of hours per week fixed in any industrial award
        applicable to the worker, with reference to the work which yields the
        higher ordinary time rate of pay; or

   (iv) if the worker works for one employer for at least the normal number of
        hours per week fixed in any industrial award applicable to the worker
        and for another employer for at least the prescribed number of hours
        per week with reference to the work which yields the higher ordinary
        time rate of pay; or

   (v)  if there is no applicable industrial award but the worker works for
        more than one employer for at least the prescribed number of hours per
        week, with reference to the work which yields the higher ordinary time
        rate of pay; or

   (vi) in any other case, by obtaining the worker's average ordinary time
        rate of pay for all work carried out by the worker for all the
        employers and applying that rate to the prescribed number of hours per
        week or to the total of the worker's normal number of hours per week
        whichever is the lesser; and





   (f)  if the worker is a person who-

   (i)  under section 6, 7 or 8 is deemed to be working under a contract of
        service; or

   (ii) under section 9 is deemed to be a worker-

the worker's pre-injury average weekly earnings shall be calculated with
reference to amounts payable to the worker and deemed to be remuneration under
those sections less any part of those amounts attributable to the supply of
capital or materials or to any employer superannuation contribution.

(7) Despite Division 2 of Part IV, for the purposes of subsections (1) and
(6), if, at the time of the injury, the worker was-

   (a)  under the age of 21 years; or

   (b)  an apprentice; or

   (c)  employed under a contract of service under which he or she is
        expressly required to undergo any training, instructions or
        examination for the purpose of becoming qualified for the occupation
        to which the contract of service relates-

and, in terms of his or her employment, the worker would have been entitled at
subsequent stages to increments in earnings, the worker's pre-injury average
weekly earnings shall be calculated-

   (d)  until the worker attains the age or stage or would, but for the
        injury, have attained the stage at which the highest rate is
        payable-as if, at the time of the injury, the worker were being paid
        at the rate applicable to the age or stage of the worker for the time
        being; and

   (e)  on and after the worker attains the age or stage or would, but for the
        injury, have attained the stage, at which the highest rate is
        payable-as if, at the time of the injury, the worker were being paid
        at the rate applicable to that age or stage.

(8) Despite Division 2 of Part IV, where in a case to which subsection (7)
applies there is not a rate applicable to a worker of or over the age of 21,
the amount of each weekly payment for a worker of or over the age of 21 who is
entitled to compensation under that Division shall be calculated as if the
worker's pre-injury average weekly earnings were $1130.

(9) Where a worker at the time of the injury was a full-time student, the
worker's pre-injury average weekly earnings under Division 2 of Part IV-

   (a)  until the time that the worker would have completed the course of
        studies in which the worker was a full-time student, shall be
        calculated in accordance with subsection (1); and

   (b)  as from the time that the worker would have completed the course of
        studies in which the worker was a full-time student shall be
        calculated as if the worker's pre-injury average weekly earnings were
        $1130.





(10) For the purposes of subsection (9), full-time student means a person who-

   (a)  is undertaking a course of studies in respect of which a participant
        can qualify for Austudy; and

   (b)  is a full-time student within the meaning of the Commonwealth Student
        and Youth Assistance Act 1973.

(11) Where a worker at the time of the injury was a full-time student at a
primary or secondary school, the worker's pre-injury average weekly earnings
under Division 2 of Part IV-

   (a)  until the time that the worker would have completed secondary school
        shall be calculated in accordance with subsection (1); and

   (b)  as from the time that the worker would have completed secondary school
        shall be calculated as if the worker's pre-injury average weekly
        earnings were $903.

(12) For the purposes of subsection (1), if at the time of the relevant injury
the worker is a person within the meaning of section 16(1) engaged by an
employer to participate as a contestant in a sporting or athletic activity and
the relevant injury is not received while the person is-

   (a)  participating as a contestant in a sporting or athletic activity; or

   (b)  engaged in training or preparation with a view to so participating; or

   (c)  travelling between a place of residence and the place at which the
        person is so participating or so engaged-

any remuneration paid or payable for those activities is to be disregarded in
calculating the worker's average weekly earnings.