Practice Direction No 13 - Schedule of earnings
The purpose of this Practice Direction is to assist legal practitioners and parties to prepare a schedule of earnings in disputes about weekly compensation.
1 January 2020
Commencement
1. This Practice Direction is issued pursuant to r 18.1 of the Workers Compensation Commission Rules 2011 (2011 Rules) and commences on 1 January 2020. It replaces Practice Direction No 13 – Schedule of Earnings, issued on 30 October 2018.
Application
2. This Practice Direction applies to all Commission proceedings. It should be read in conjunction with the relevant workers compensation Acts and 2011 Rules.
Purpose
3. The purpose of this Practice Direction is to assist legal practitioners and parties to prepare a schedule of earnings in disputes about weekly compensation.
When should you complete a schedule of earnings?
4. If the amount of weekly compensation is in dispute you must complete a schedule of earnings (r 15.5 of the 2011 Rules).
5. The following Commission forms contain a schedule of earnings:
(a) Form 1 – Application for Expedited Assessment;
(b) Form 2 – Application to Resolve a Dispute;
(c) Form 2A – Reply to Application to Resolve a Dispute, and
(d) Form 18 – Wages Schedule.
6. If the employer does not agree with the amounts stated in the worker’s schedule of earnings, it should provide full details of the amounts it says are correct.
7. It is inappropriate for either party to state “not known” or “to be provided” in relation to earnings or earning capacity.
Legislative provisions
8. Division 2 of Pt 3 of the Workers Compensation Act 1987 (the 1987 Act) contains provisions with respect to weekly compensation. These provisions were amended by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) which commenced on 1 October 2012 and and Sch 3 of the Workers Compensation Legislation Amendment Act 2018 (the 2018 amending Act), which commenced on 21 October 2019. These legislative amendments do not apply to exempt workers, who are defined as police officers, paramedics and firefighters (see cl 25 of Pt 19H of Sch 6 to the 1987 Act)
Which schedule of earnings should you use?
9. There are two alternative schedules of earnings in the forms:
(a) Schedule of Earnings (non-exempt workers) – Part A, and
(b) Schedule of Earnings (exempt workers) – Part B.
10. Each schedule has a table detailing the period and amount of weekly compensation in dispute. If the claim is a continuing claim (beyond the date of the preparation of the schedule) insert the date on which the entitlement period commences and add “and continuing”.
Period of weekly compensation in dispute | Weekly amount in dispute |
/ / to / / | $ |
/ / to / / | $ |
/ / to / / | $ |
11. If the applicant is an exempt worker with dependants who rely on the applicant for support, the table below needs to be completed in the schedule of earnings.
Name | Date of birth | Relationship to worker |
/ / | ||
/ / | ||
/ / |
Schedule of Earnings (non-exempt workers)
12. The Schedule of Earnings (non-exempt workers) is separated into three entitlement periods:
(a) “first entitlement period”, being the aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which weekly compensation has been paid or is payable to the worker (ss 32A, 36 of the 1987 Act);
(b) “second entitlement period”, being the aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which weekly compensation has been paid or is payable to the worker (ss 32A, 37 of the 1987 Act), and
(c) the period “after 130 weeks”, being continued entitlement after the expiry of the second entitlement period, if special requirements are met (s 38 of the 1987 Act).
First entitlement period (first 13 weeks, s 36) | PIAWE | Deductible amount “D” (for injuries received before 21 October 2019) | Able to earn in suitable employment/current weekly earnings “E” |
-- | $ | $ | $ |
-- | $ | $ | $ |
-- | $ | $ | $ |
Second entitlement period (weeks 14–130, s 37) | PIAWE | Deductible amount “D” (for injuries received before 21 October 2019) | Able to earn in suitable employment/current weekly earnings “E” |
-- | $ | $ | $ |
-- | $ | $ | $ |
-- | $ | $ | $ |
After 130 weeks (weeks 131 and onwards, ss 38, 39) | PIAWE | Deductible amount “D” (for injuries received before 21 October 2019) | Able to earn in suitable employment/current weekly earnings “E” |
-- | $ | $ | $ |
-- | $ | $ | $ |
-- | $ | $ | $ |
13. The amount to be claimed in the entitlement periods cannot exceed the maximum under s 34 of the 1987 Act
14. In each entitlement period there are different methods of calculating entitlements to weekly compensation. The methods are contained in ss 36, 37 and 38 of the 1987 Act as those legislative provisions existed at the relevant time. Familiarity with the applicable definitions in s 32A of the 1987 Act and Sch 3 to the 1987 Act is essential to determining which method to apply.
15. The main differences in the methods to apply concern the calculation of a worker’s pre-injury average weekly earnings (PIAWE):
(a)For injuries received before 26 October 2018, PIAWE means the average of the worker’s ordinary earnings during the relevant period expressed as a weekly sum. Ordinary earnings are determined with reference to s 44E of the 1987 Act, as it stood prior to the 2018 amending Act. In determining ordinary earnings, regard must be had to the worker’s base rate of pay, actual earnings paid or payable, and the monetary value of non-pecuniary benefits in respect of a week. Overtime and shift allowance payments are only included in the calculation of PIAWE for the purpose of the first 52 weeks of weekly payments (see s 44C–44I and Sch 3 of the 1987 Act, as it stood prior to the 2018 amending Act).
(b)For injuries received on or after 26 October 2018, but before 21 October 2019, PIAWE means the average of the worker’s ordinary earnings during the relevant period expressed as a weekly sum. Overtime and shift allowance payments are permitted to be included in the calculation of PIAWE.
(c)For injuries received on or after 21 October 2019, PIAWE means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury during the relevant earning period. Gross earnings include wages, overtime and shift allowance payments, commission and piece rates, and the cash value of a non-monetary benefit that the worker no longer has the use of after injury (see Sch 3 of the 1987 Act).
16.Where a worker was, at the time of injury, under the age of 21 years, or an apprentice, or working under a contract where s/he was required to undergo training, instruction or examination in order to become qualified to carry on an occupation, and but for the injury would have been entitled to increments in earnings at certain ages or stages, regard should be had to Sch 3 of the 1987 Act as in force at the relevant time.
17.Where a worker was, at the time of injury, employed by two or more employers:
(a)For injuries before 21 October 2019, regard should be had to Sch 3, Items 2–8 of the 1987 Act as it stood prior to the 2018 amending Act.
(b)For injuries on or after 21 October 2019, the average weekly earnings from each job are to be added together to determine the worker’s pre-injury average weekly earnings.
Schedule of Earnings (exempt workers)
Period From/To | Actual earnings/ability to earn | Comparable/ probable earnings | Current weekly wage rate |
-- | $ | $ | $ |
-- | $ | $ | $ |
-- | $ | $ | $ |
18.The references to legislation in this part concern the law as it stood prior to the commencement of the 2012 amending Act.
19.The following matters are relevant:
(a)the weekly amount that the worker would probably have been earning but for the injury, including the earnings of comparable employees (s 40(2)(a) of the 1987 Act);
(b)the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after injury (s 40(2)(b) of the 1987 Act);
(c)the worker’s current weekly wage rate (s 42 of the 1987 Act), and
(d)the relevant wage in occupations the worker is able to pursue.
20.The first three items in paragraph [19(a)–(c)] above are referred to in the schedule of earnings. The fourth item in paragraph [19(d)] is relevant to circumstances where the worker is not in employment or where the worker’s actual earnings are not an accurate measure of his or her earning capacity.
21.For the first 26 weeks of total incapacity, the weekly payment of compensation is the amount of the worker’s “current weekly wage rate” (s 36 of the 1987 Act). After the first 26 weeks, weekly payments of compensation during total incapacity are calculated in accordance with s 37 of the 1987 Act.
22.For periods of partial incapacity, weekly payments of compensation are calculated in accordance with ss 38 and 40 of the 1987 Act.
23.The most common approach to calculating the reduction in a worker’s earnings is set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 526, at 529–530.
24.The amount to be claimed for any period of total or partial incapacity cannot exceed the maximum under s 35 of the 1987 Act.
25.If a worker is not in employment or if a worker’s actual earnings post-injury are not an accurate measure of his or her earning capacity, it will be necessary to assess his or her ability to earn in suitable employment in the labour market reasonably accessible to the worker (s 43A of the 1987 Act).
His Hon Judge Gerard Phillips
President