Workers Compensation Fact
Sheets
Make sure
you know the facts about Workers Compensation, and how it works
in NSW after a worker is injured.
How the CFMEU helps members with Workers Compensation
Our legal officer can assist with workers compensation. As
well as providing assistance we will liaise with the insurance
company and the employer to make sure that proper benefits
are paid and that the injured worker is provided with suitable
duties and rehabilitation.
Workers Compensation Tips
Please Note: this advice is for residents of NSW only -
legislation differs from state to state.
1. Injury at the
workplace
Notifying an
Injury
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Any injury at
the work place should be recorded in the site accident
register and the company's own accident book, even if it
does not initially seem serious. Every site should have a
site accident register. |
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The worker
should see a doctor and obtain a WorkCover Medical
Certificate if medical attention is required; |
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Once the
employer is notified of the injury, the employer is required
to notify their insurer within 48 hours. The employer is
also obliged to provide the information regarding their
insurance details such as name of insurer and policy number to
its employees. |
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Once a claim has
been notified to the insurer it will be given a claim number.
The insurer may require that a claim form is lodged. |
Provisional
Liability
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When an insurer
is notified it must commence payments of weekly benefits within 7 days of receiving notification of the injury. This
can be done on a provisional basis ie before liability
has been formally accepted. The insurer can refuse to make
provisional payments if they have a reasonable cause. For
further information contact the Union. |
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A worker is
entitled to receive provisional payments of weekly benefits of
up to 12 weeks. |
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A worker may
also be entitled to up to $5000 in medical expenses on a
provisional basis. |
Other
Entitlements
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When a claim has
been accepted an injured worker will receive weekly benefits.
How much the weekly benefits will be depends on the period of
incapacity and whether someone is fully or partially unfit
for work. There are also different benefits if an injured
worker is doing suitable duties. Contact the Union for
further information about weekly benefits. |
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Injured workers
are also entitled to reasonable medical expenses and reimbursement for travel in relation to medical appointments
and treatment. |
Rehabilitation
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Employers must
have in place an injury management plan and return to
work plan to manage workers compensation claim. |
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An injured
worker may be referred to a rehabilitation provider to
assist in the return to work process, including possible re-training
option. |
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Injured workers
can choose their own rehabilitation provider. |
Other Issues
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A worker is
entitled to be paid any unused sick leave, accumulated
RDO's or holidays whilst waiting for the decision.
Once the claim is accepted his/her employment record should be
re-credited. |
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If a worker
suffers permanent incapacity they may be entitled to lump sum benefits and should contact the Union for further.
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Workers should
try and keep copies of all forms completed and medical
certificates obtained. |
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Workers now
nominate their treating doctor to participate in their
rehabilitation. Failure to cooperate with a rehabilitation
program may result in benefits being stopped. |
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A worker in
receipt of workers compensation cannot be dismissed due
to being unfit for work within 6 months of becoming unfit. |
2. Public holidays on
workers compensation
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Workers on
workers compensation, who are covered by the National
Building and Construction Industry Award 2000, or the Building and Construction Industry (State) Award should
receive additional payment for public holidays which fall due
whilst the worker is off (unless excluded in an Enterprise
Bargaining Agreement). |
3. Accruals
Whilst on Workers
Compensation a worker accrues;
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ACIRT
redundancy should continue to be paid for the first 26 weeks.
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CBUS
contributions whilst the worker remains employed. |
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Annual leave
within the first 26 weeks off on workers compensation
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Workers should
make sure their monthly C+bus contributions are being
made, as this may effect their entitlement to total and
permanent disability benefits should they not be able to
continue in the workforce. |
4. Long service leave
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Service should
still be recorded with the Long Service Corporation. If
your compensation is being paid by the insurance company an
injured worker can claim additional service credits (220
days/financial year) for a maximum of four years, as long as the
worker has not withdrawn his/her benefits on disability grounds.
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The Long Service Payments Corporation
can be contacted at Locked Bag 3000, Central Coast MC
NSW 2252, by phone on 131 411, or you can drop in to
the Long Service Payments Corporation office on Level
1 of the CFMEU's office at 12 Railway Street, Lidcombe. |
5. Top up/24 hour cover
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Where a worker
is injured in an accident and is off work for more than 30 days
and their employer has top up/24 hour cover, the worker may
be entitled to other benefits. Workers should speak to their
employer for claim forms to be provided or contact
Coverforce
to see if they are covered and entitled to benefits on (02)
9267 5999. Workers can also contact the Union for
more information. |
6.
Workers Compensation & Casuals
In respect of casual employees, irrespective of whether they are
paid under an Award or under an EBA there is no clear simple
answer (as in the case of permanent employees), as to what
rate of weekly workers compensation they are to be paid during
the first 52 weeks of incapacity.
The rate of weekly workers compensation for casual employees
is worked out as follows:
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Section 42 of the Worker Compensation Act (“WCA”)
says casual are entitled to 80% of their “average weekly
earnings”. This is the amount paid for the first 26 weeks
of incapacity. If the worker is still partially
incapacitated after 26 weeks, they get a further 26 weeks at
the Section 38 rate which is 80% of the previous figure.
After 52 weeks statutory rates apply to all workers. |
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Section
43 of the WCA is supposed to advise how to calculate
“average weekly earnings.” This section of the Act
is two pages long and unfortunately does not provide
clear rules but rather gives factors to be taken
into account. |
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The CFMEU and our solicitors Taylor & Scott argue
that Section 43(f)(i) means that the worker should get not
less that “the full wage for a full normal working week.”
The Union argues that even though casuals may have been only
doing 3 days, they would have picked up work elsewhere if they
were not injured and therefore they should get whatever they
would have earned for a full week for their employer as a
casual. |
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Bosses and insurance lawyers on the other hand will tend to
point to other sub-sections of Section 43 which says that regard
should be had to the average earning of a worker in the 12
months preceding an injury. |
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From a practical point of view, usually the matter is determined
by agreement between the workers and the insurance company.
Fortunately, more often than not, if we can show that a casual
has been regularly doing 3 or 4 days a week for at least say a
month before the injury, the insurance company is willing to
accept that that “average weekly earnings” are whatever the
casual earning would have been for say 4 days per week. |
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The real problem is with workers who get hurt on the first
day or two of the job and have no real substantial work
history during the previous 12 months to suggest what they
would have been earning. Ultimately, if the parties cannot
agree its up to the Court or the new Workers Compensation
Commission to calculate “average weekly earnings” as best it
can and settle the issue. |
If you are a casual and you have been injured and are receiving
weekly workers compensation payments you need to ensure you are
not underpaid.
Ring union solicitors Taylor & Scott (02 9265 2500) now and
check your pay and your rights.
7. Union dues
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If a worker has
been off work on workers compensation they should contact the
Union Membership Department for more information. |
8. Useful Contacts
