5ADefinition—pre-injury average weekly earnings

5A Definition—pre-injury average weekly earnings (1) In this Act, ***pre-injury average weekly earnings***, in respect of a relevant period in relation to a worker, means, subject to this section, the sum of— S. 5A(1)(a) substituted by No. 67/2013 s. 626(2) (as amended by No. 44/2014 s. 24(26)). (a) the average of the worker's ordinary earnings during the relevant period (excluding from that period any week during which the worker did not actually work and— S. 5A(1)(a)(i) amended by No. 44/2014 s. 26. (i) was not on paid leave; or (ii) was on paid leave at a rate less than the base rate of pay)— expressed as a weekly sum; and (b) the worker's earnings enhancement (if any) in the relevant enhancement period. (2) If a worker has been continuously employed by the same employer for less than 4 weeks before the injury, ***pre-injury average weekly earnings***, in relation to that worker, may be calculated having regard to— (a) the average of the worker's ordinary earnings that the worker could reasonably have been expected to have earned in that employment, but for the injury, during the period of 52 weeks after the injury expressed as a weekly sum; and (b) the worker's earnings enhancement (if any) in the relevant enhancement period. (3) If a worker— (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 period of 78 weeks immediately before the injury— ***pre-injury average*** ***weekly earnings***, in relation to that worker, means the sum of— S. 5A(3)(d) substituted by No. 67/2013 s. 626(3) (as amended by No. 44/2014 s. 24(26)). (d) the average of the worker's ordinary earnings while employed during the period of 78 weeks immediately before the injury (excluding from that period any week during which the worker did not actually work and— (i) was on unpaid leave; or (ii) was on paid leave at a rate less than the base rate of pay)— whether or not the employer is the same employer as at the time of the injury, expressed as a weekly sum; and (e) the worker's earnings enhancement (if any) in the relevant enhancement period. (4) If a worker is a person engaged by an employer to participate as a contestant in a sporting or athletic activity within the meaning of section 16(1) and the injury is not received while the person is— (a) participating, or training for or preparing to participate, as a contestant in a sporting or athletic activity; or (b) travelling between a place of residence and a place where the activity, training or preparation is held— any remuneration paid or payable in respect of such participation, training, preparation or travel is not to be taken into account in calculating the worker's pre-injury average weekly earnings. (5) In relation to a worker of a class referred to in column 2 of an item in Schedule 1A, ***pre‑injury average weekly earnings*** means the amount determined in accordance with column 3 of that item, expressed as a weekly sum. (6) In relation to a worker to whom section 7 or 7A applies, the worker's pre-injury average weekly earnings must be calculated with reference to the amounts payable to the worker and deemed to be remuneration under that section, expressed as a weekly sum. (7) In relation to a worker to whom section 6 or 8 applies, the worker's pre-injury average weekly earnings must be calculated with reference to the amounts payable to the contractor and deemed to be remuneration under that section, expressed as a weekly sum. S. 5AA inserted by No. 80/2010 s. 21. 5AA Definitions applying to pre-injury average weekly earnings—relevant period (1) Subject to this section, a reference to the relevant period in relation to pre-injury average weekly earnings of a worker is a reference to— (a) in the case of a worker who has been continuously employed by the same employer for the period of 52 weeks immediately before the injury, that period of 52 weeks; (b) in the case of a worker who has been continuously employed by the same employer for less than 52 weeks immediately before the injury, the period of continuous employment by that employer. S. 5AA(2) amended by No. 35/2020 s. 54(1). (2) Subject to subsection (4), the relevant period, in relation to pre-injury average weekly earnings of a worker who, during the 52 weeks immediately before the injury, voluntarily (otherwise than by reason of an incapacity for work resulting from, or materially contributed to by, an injury which entitles the worker to compensation under this Act)— (a) alters the ordinary hours of work; or (b) alters the nature of the work performed by the worker— and, as a result, the worker's ordinary earnings are reduced, does not include the period before the reduction takes effect. (3) If, during the period of 52 weeks immediately before the injury, a worker— (a) is promoted; or (b) is appointed to a different position— (otherwise than on a temporary basis) and, as a result, the worker's ordinary earnings are increased, the relevant period in relation to the worker begins on the day on which the promotion or appointment takes effect. S. 5AA(4) inserted by No. 35/2020 s. 54(2). (4) If the relevant period, in relation to the pre‑injury average weekly earnings of a worker during the 52 weeks immediately before the worker's injury would otherwise include a period of time during the prescribed period and the worker's earnings during the period occurring in the prescribed period are reduced for a COVID-19 reason, the relevant period in relation to the worker does not include the period occurring in the prescribed period. S. 5AA(5) inserted by No. 35/2020 s. 54(2). ***COVID-19 reason*** means, in relation to the reduction of earnings of a worker, that the reduction is a consequence of one or more of the following occurring during the prescribed period because of the COVID-19 pandemic— (a) the ordinary hours of work of the worker are reduced; (b) the nature of the work performed by the worker is altered; (c) the earnings of the worker are reduced; ***prescribed period*** means the period starting on 1 March 2020 and ending on 31 December 2020. S. 5AB inserted by No. 80/2010 s. 21. 5AB Definitions applying to pre-injury average weekly earnings—ordinary earnings (1) Subject to this section, in relation to pre‑injury average weekly earnings, the ***ordinary earnings*** of a worker in relation to a week during the relevant period are— (a) if the worker's base rate of pay is calculated on the basis of ordinary hours worked, the sum of— S. 5AB(1)(a)(i) substituted by No. 67/2013 s. 626(4) (as amended by No. 44/2014 s. 24(26)). (i) the worker's earnings calculated at that rate for ordinary hours in that week during which the worker worked or was on paid leave at the base rate of pay; and (ii) if the worker receives a piece rate payment or a commission or both a piece rate payment and a commission, the amount of piece rate payments and commissions the worker receives in respect of that week; or (b) if paragraph (a) does not apply, the actual earnings (other than an amount of a kind referred to in section 5AC(1)(a), (b), (c), (e) or (f)) paid or payable to the worker in respect of that week— and include— (c) any other amount (other than an amount of a kind referred to in section 5AC(1)(a), (b), (c), (e) or (f)) for the performance of work by the worker, that, under the worker's terms of employment, the employer is required to apply or deal with on behalf of the worker in accordance with the worker's instructions, in respect of that week; and (d) the monetary value of— (i) residential accommodation; and (ii) use of a motor vehicle; and (iii) health insurance; and (iv) education fees— provided in respect of that week to the worker by the employer for the performance of work by the worker (***non-pecuniary benefit***)*.* (2) For the purposes of subsection (1)(d), the monetary value of a non-pecuniary benefit is— (a) the value that would be the value as a fringe benefit for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth, calculated in accordance with section 5C of this Act, divided by 52; or (b) in the case of residential accommodation that is not a fringe benefit or is otherwise not subject to fringe benefits tax, the amount that would reasonably be payable for that accommodation, or equivalent accommodation in the same area, in respect of that week if it were let on commercial terms. (3) A reference to ordinary earnings does not include, and is deemed never to have included, a reference to any employer superannuation contribution*.* S. 5AC inserted by No. 80/2010 s. 21. 5AC Definition applying to pre-injury average weekly earnings and current weekly earnings—base rate of pay (1) In relation to pre-injury average weekly earnings and current weekly earnings, a reference to a ***base rate of pay*** is a reference to the rate of pay payable to a worker for his or her ordinary hours of work but does not include— (a) incentive based payments or bonuses; (b) loadings; (c) monetary allowances; (d) piece rates or commissions; (e) overtime or shift allowances; (f) any separately identifiable amount not referred to in paragraphs (a) to (e). (2) In relation to pre-injury average weekly earnings and current weekly earnings, if, at the time of the injury— (a) a worker's base rate of pay is prescribed by an industrial award that applies to the worker; and (b) the worker's actual rate of pay for ordinary hours is higher than that rate of pay— the worker's actual rate of pay is to be taken to be the worker's base rate of pay. S. 5AD inserted by No. 80/2010 s. 21. 5AD Definitions applying to pre-injury average weekly earnings—earnings enhancement and enhancement period In relation to pre-injury average weekly earnings— ***earnings enhancement***, in relation to a worker who— (a) during the relevant period, worked paid overtime or carried out work that attracted a shift allowance; and (b) but for the worker's injury or death, would have been likely, at any time during the enhancement period, to have worked paid overtime or carried out work that attracted a shift allowance— means the amount calculated in accordance with the formula— A is the total amount paid or payable to the worker for paid overtime and shift allowances in respect of the relevant period; B is the number of weeks during the relevant period during which the worker worked or was on paid annual leave; ***enhancement period*** means— (a) in relation to compensation in the form of weekly payments to the worker under section 93A or 93B—the first 52 weeks in respect of which such compensation is paid or payable to the worker; (b) in relation to compensation in the form of weekly payments of pension under section 92B—the first 52 weeks after the death of the worker. S. 5AE inserted by No. 80/2010 s. 21. 5AE Definition applying to pre-injury average weekly earnings and current weekly earnings—ordinary hours of work In relation to pre-injury average weekly earnings and current weekly earnings, the ***ordinary hours of work***— (a) in the case of a worker to whom an industrial award applies are— (i) if the ordinary hours of work in relation to a week are agreed or determined in accordance with an industrial award between the worker and the employer—those hours; S. 5AE(a)(ii) substituted by No. 67/2013 s. 626(5) (as amended by No. 44/2014 s. 24(26)). (ii) in any other case, the worker's average weekly hours during the relevant period (excluding from that period any week during which the worker did not actually work and was not on paid leave at the base rate of pay); (b) in the case of a worker to whom an industrial award does not apply— (i) if the ordinary hours of work are agreed between the worker and the employer, those hours; S. 5AE(b)(ii) substituted by No. 67/2013 s. 626(6) (as amended by No. 44/2014 s. 24(26)). (ii) in any other case, the worker's average weekly hours during the relevant period (excluding from that period any week during which the worker did not actually work and was not on paid leave at the base rate of pay). S. 5B inserted by No. 64/1989 s. 6, amended by No. 67/1992 s. 8, substituted by No. 80/2010 s. 22. 5B Definition—current weekly earnings In this Act, ***current weekly earnings*** of a worker in relation to a week means— (a) if the worker's base rate of pay is calculated on the basis of ordinary hours worked, the sum of— (i) the worker's earnings so calculated for the ordinary hours worked during that week; and (ii) amounts paid or payable for overtime or shift allowances in respect of that week; and (iii) amounts paid or payable as piece rates or commissions in respect of that week; or (b) if paragraph (a) does not apply, the worker's actual earnings (other than an amount of a kind referred to in section 5AC(1)(a), (b), (c) or (f)) in respect of that week. S. 5C inserted by No. 50/1994 s. 7, substituted by No. 9/2010 s. 95, repealed by No. 67/2013 s. 627(1). S. 5D s. 5(4), amended by No. 81/1998 s. 19(2), repealed by No. 60/2007 s. 23, new s. 5D inserted by No. 9/2010 s. 95, repealed by No. 67/2013 s. 627(1). S. 5E inserted by No. 107/1997 s. 5(4), amended by No. 81/1998 s. 19(2), repealed by No. 60/2007 s. 23, new s. 5E inserted by No. 9/2010 s. 95, repealed by No. 67/2013 s. 627(1). Pt 1 Div. 3 (Heading and ss 5F–17) amended[[2]](#endnote-3), repealed by No. 67/2013 s. 627(2). Pt 2 (Headings and ss 18–38) amended[[3]](#endnote-4), repealed by No. 67/2013 s. 627(3). Pt 3 (Heading and ss 39–80) amended[[4]](#endnote-5), repealed by No. 67/2013 s. 627(3). Part IV—Payment of compensation Division 1—Application New s. 80 inserted by No. 95/2003 s. 15.