Return to Work Act 2014

Subject to this section, the average weekly earnings of an injured worker is the average weekly amount that the worker earned during the period of

For the purposes of subsection (1), other than where subsection (2a) applies, relevant employment is constituted by—

employment with the employer from whose employment the injury arose; and

if the worker was, at the time of the occurrence of the injury, in the employment of 2 or more employers, employment with each such employer.

This subsection applies if—

the work injury that results in incapacity for work is a prescribed dust/fibre disease; and

the injured worker elects to have this subsection apply rather than subsection (2).

For the purposes of subsection (1), if subsection (2a) applies, relevant employment is constituted by—

employment with the worker's employer at the time that the prescribed dust/fibre disease is diagnosed by a medical practitioner;

if the worker is, at the time of that diagnosis, in the employment of 2 or more employers, employment with each such employer.

An election under subsection (2a)(b)—

must be made in a manner and form approved by the Corporation;

cannot be withdrawn by the worker.

For the purposes of this section, any amount paid while a worker was on annual, sick or other leave will be taken to be earnings.

If during the period of 12 months before the relevant date the worker had changed the circumstances of his or her employment from working casually or seasonally to working in permanent employment (whether on a full‑time or part‑time basis) and the worker was in that permanent employment on the relevant date, the worker's average weekly earnings may be determined by reference to the average weekly amount that the worker earned during the period of that permanent employment rather than during the period of 12 months preceding the relevant date, unless to do so would disadvantage the worker.

If a worker voluntarily (otherwise than by reason of an incapacity resulting from a work injury)—

reduces the normal number of hours worked; or

alters the nature of the work performed with the result that a reduction occurs in the worker's weekly earnings, any period before the reduction or alteration takes effect will be disregarded for the purposes of determining average weekly earnings.

In addition, if by reason of the shortness of time during which the worker has been in employment, the terms of the worker's employment or for any other reason, it is not possible to arrive at a fair average, the worker's average weekly earnings may be determined by reference to the average weekly amount being earned by other persons in the same employment with the same employer who perform similar work at the same grade as the worker or, if there is no person so employed, by other persons in the same class of employment who perform similar work at the same grade as the worker.

If a worker is a contractor rather than an employee, the worker's average weekly earnings will be determined by reference to the rate of pay that the worker would have received if the worker had been working as an employee and, if there is an award or industrial agreement applicable to the class and grade of work in which the worker was engaged, the worker's average weekly earnings will be determined by reference to that award or industrial agreement.

If—

an employer is a body corporate; and

the worker is a director as well as an employee of the employer, the worker's average weekly earnings will be determined by reference to the remuneration (calculated on a weekly basis) last reported in a return from the employer to the Corporation under

If because of a work injury or the gradual onset of a work injury it appears that the level of earnings of an injured worker prior to the relevant date were affected by the injury, the average weekly earnings of the worker must be set at an amount that fairly represents the weekly amount that the worker would have been earning if the level of earnings had not been so affected.

The average weekly earnings of an injured worker who—

was not a full‑time worker immediately before the relevant date; and

immediately before the relevant date had been seeking full‑time employment; and

had been predominantly during the preceding 18 months a full‑time worker, will be taken to be the average weekly earnings of the worker while employed in full‑time employment during the period of 18 months preceding the relevant date.

If a worker who suffers a permanent incapacity (whether total or partial) is under the age of 21 years, the average weekly earnings of the worker must be determined by applying the rate of pay that would have been payable to the worker had the worker been 21 years old and if a worker who suffers a permanent incapacity (whether total or partial) is an apprentice, the average weekly earnings of the worker must be determined by applying the rate of pay that would have been payable to the worker had the worker completed the apprenticeship (and this determination may have effect (if not before) when it is determined that a worker has a permanent incapacity under a redetermination under section 31).

For the purposes of determining the average weekly earnings of a worker—

any component of the worker's earnings attributable to overtime will be disregarded if, at the relevant date, the worker had no reasonable expectation to work overtime within the foreseeable future because of a change in employment arrangements or work practices, or other relevant factors, announced, introduced or occurring on or before the relevant date, but otherwise payments attributable to overtime will be taken into account;

to the extent that a worker has worked overtime that is to be taken into account, the component for overtime will be an amount calculated as follows:

For the purposes of determining the average weekly earnings of a worker—

any amount otherwise payable to the worker that has been the subject of a voluntary salary sacrifice for superannuation purposes by the worker will be taken into account as earnings; and

any non‑cash benefit of a prescribed class provided to the worker by an employer—

will be taken into account if the worker does not retain the benefit of the non‑cash benefit (and valued after taking into account any principles specified by this Act or prescribed by the regulations);

will not be taken into account if the worker retains the benefit of the non‑cash benefit.

Despite a preceding subsection, the following will be disregarded for the purposes of determining the average weekly earnings of a worker:

any contribution paid or payable by an employer to a superannuation scheme for the benefit of the worker;

any prescribed allowances.

Despite a preceding subsection—

if an injured worker's remuneration was, at the relevant date, covered by an award or industrial agreement, the worker's average weekly earnings will not be less than the weekly wage to which the worker was then entitled under the award or industrial agreement; and

if, but for this paragraph, the average weekly earnings of a worker (not being a self‑employed worker) would be less than the Federal minimum wage applying in relation to the worker (adjusted, in the case of a worker who was working at the relevant date on a part‑time basis, in accordance with the regulations so as to provide a pro‑rata amount), the average weekly earnings will be fixed at the Federal minimum wage (or, if relevant, the Federal minimum wage as so adjusted); and

the average weekly earnings of a worker will in no case be fixed at more than twice State average weekly earnings.

For the purposes of this section—

a reference to the relevant date is a reference to—

unless subparagraph (ii) applies—the date on which the relevant injury occurs; or

if the worker has made an election under subsection (2a)(b)—the date on which the prescribed dust/fibre disease to which the election relates is diagnosed by a medical practitioner; and

a reference to a worker who is working on a part‑time basis is a reference to a worker who, after taking into account the usual work patterns of workers in employment of the kind in which the worker is working at the relevant date, is not working the number of hours per week that can be taken to constitute full‑time employment.

The Minister must not make a recommendation to prescribe a disease as a prescribed dust/fibre disease unless—

the Minister has consulted with—

1 or more professional associations representing medical practitioners, including the Australian Medical Association (South Australia)

the Corporation; and

the Advisory Committee; and

the Minister is satisfied that it will be reasonable for the disease to be prescribed.

In this section—