Are employees entitled to accident pay?

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Are employees entitled to accident pay?

Are employees entitled to accident pay and, if so, how long is it payable for? Paul Munro discusses recent changes to modern awards.

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Are employees entitled to accident pay and, if so, how long is it payable for?

This question was recently sent to our Ask an Expert service.
 
Q We have two employees absent on workers compensation – one is employed as a metal tradesperson, the other as a storeperson. They have been absent from work for about four months and are unlikely to return to pre-injury duties. Both employees receive a substantial over award payment. Because of their respective injuries and the absence of relevant duties which can now be performed, the company has decided to terminate their employment.

The metal tradesperson has claimed an entitlement to accident pay as the level of workers compensation is less than the relevant award rate of pay. The metal tradesperson is employed under the Manufacturing and Associated Industries and Occupations Award 2010, while the storeperson is employed under the Storage Services and Wholesale Award 2010. We heard that accident pay was recently re-introduced into modern awards.

Would these employees now be eligible to receive accident make-up pay and, if so, does it continue to apply after the date of termination?
 
A An entitlement to accident pay is determined by the applicable modern award or enterprise agreement. It is not a standard term in modern awards.
 
In the above case, the Manufacturing and Associated Industries and Occupations Award 2010 does not contain a provision for accident pay. An application to vary this award to include accident pay was rejected by the Fair Work Commission in a decision handed down in late 2015.
 
Therefore the metal tradesperson is not entitled to receive accident pay.
 
The Storage Services and Wholesale Award 2010 (cl. 18) does provide for accident pay. This is defined as a weekly payment made to an employee that is the difference between the amount of workers compensation received by an employee and the rate of pay prescribed for the relevant classification under the award.

The maximum period of payment under the award is 26 weeks from the date of the injury and continues to be payable after the employee is terminated, up to when the employee ceases to be eligible for workers compensation or 26 weeks, whichever occurs first.

The award was varied to include accident pay on and from 15 October 2015. Hence the store person would be entitled to payment of accident pay from that date. 

Modern awards

Accident pay is not a standard term in modern awards, however, the Fair Work Commission varied a number of modern awards some months ago and reinserted accident pay make-up pay provisions. Reference should be made to the applicable modern award to determine an employee’s entitlement to accident pay and the maximum period for which accident pay is payable.

The following modern awards were varied by the Fair Work Commission to include accident pay operative on and from 15 October 2015:
  • Airline Operations – Ground Staff Award 2010
  • Building and Construction General On-Site Award 2010
  • Business Equipment Award 2010
  • Concrete Products Award 2010
  • Dry Cleaning and Laundry Industry Award 2010
  • Fast Food Industry Award 2010
  • Horticulture Award 2010
  • Joinery and Building Trades Award 2010
  • Labour Market Assistance Industry Award 2010
  • Mannequins and Models Award 2010
  • Marine Towage Award 2010
  • Mobile Crane Hiring Award 2010
  • Oil Refining and Manufacturing Award 2010
  • Professional Diving Industry (Industrial) Award 2010
  • Storage Services and Wholesale Award 2010
  • Stevedoring Industry Award 2010
  • Textile, Clothing Footwear and Associated Industries Award 2010
  • Timber Industry Award 2010
  • Vehicle Manufacturing, Repair, Service and Retail Award 2010
  • Wine Industry Award 2010
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