Subdiv 2Entitlement to weekly payments

Subdivision 2—Entitlement to weekly payments 39—Weekly payments over designated periods for workers other than seriously injured workers (1) Subject to this Act, if a worker, other than a seriously injured worker, suffers a work injury that results in incapacity for work, the worker is entitled to weekly payments in respect of that incapacity in accordance with the following principles: (a) if any period of incapacity for work occurs within the period of 52 weeks from the date on which the incapacity for work first occurs (the first designated period)— (i) for any period during the first designated period when the worker has no current work capacity—the worker is entitled to weekly payments equal to the worker's notional weekly earnings; and (ii) for any period during the first designated period when the worker has a current work capacity—the worker is entitled to weekly payments equal to the difference between the worker's notional weekly earnings and the worker's designated weekly earnings; (b) if any period of incapacity for work occurs within the period of 52 weeks beginning immediately after the end of the period that applies under paragraph (a) (the second designated period)— (i) for any period during the second designated period when the worker has no current work capacity—the worker is entitled to weekly payments equal to 80% of the worker's notional weekly earnings; and (ii) for any period during the second designated period when the worker has a current work capacity—the worker is entitled to weekly payments equal to 80% of the difference between the worker's notional weekly earnings and the worker's designated weekly earnings. (2) For the purposes of this section, the designated weekly earnings of a worker will be taken to be the current weekly earnings of the worker in employment or self‑employment (if any) but not so as to include a prescribed benefit. (3) A worker has no entitlement to weekly payments under this section in respect of a work injury after the end of the period of 104 weeks from the date on which the incapacity for work first occurs (that is, after the end of the second designated period). 40—Supplementary income support for incapacity resulting from surgery (1) Subject to this section, an injured worker who has an incapacity for work as a result of surgery approved by the Corporation is entitled to weekly payments (supplementary income support payments) as provided by this section if the incapacity occurs after the end of the second designated period that applies under section 39(1)(b). (2) Supplementary income support payments are not payable under this section in respect of any period of incapacity that occurs more than 13 weeks after the surgery concerned. (3) Supplementary income support payments under this section are payable at the rate provided by and in accordance with section 39(1)(b) as if the period of incapacity in respect of which the payments are made occurred during the second designated period subject to any adjustments made under the regulations to take into account— (a) changes in the CPI; and (b) any other matter prescribed by the regulations. 41—Weekly payments for seriously injured workers (1) Subject to this Act, if a seriously injured worker suffers a work injury that results in incapacity for work, the worker is entitled to weekly payments in respect of that incapacity in accordance with the following principles: (a) if any period of incapacity for work occurs within the period of 52 weeks from the date on which the incapacity for work first occurs (the first designated period)— (i) for any period during the first designated period when the worker has no current work capacity—the worker is entitled to weekly payments equal to the worker's notional weekly earnings; and (ii) for any period during the first designated period when the worker has a current work capacity—the worker is entitled to weekly payments equal to the difference between the worker's notional weekly earnings and the worker's designated weekly earnings; (b) if any period of incapacity for work occurs after the end of the period that applies under paragraph (a)— (i) for any period when the worker has no current work capacity—the worker is entitled to weekly payments equal to 80% of the worker's notional weekly earnings; and (ii) for any period when the worker has a current work capacity—the worker is entitled to weekly payments equal to 80% of the difference between the worker's notional weekly earnings and the worker's designated weekly earnings. (2) For the purposes of subsection (1), the designated weekly earnings of a worker will be taken to be the current weekly earnings of the worker in employment or self‑employment (if any) but not so as to include a prescribed benefit. (a) a worker is paid weekly payments under subsection (1); and (b) the worker is subsequently, on account of an assessment of whole person impairment under this Act, determined not to be a seriously injured worker, the worker will be entitled to continue to receive payments under this section as if the worker were a seriously injured worker until the expiration of 8 weeks from the date of the assessment (and then any further entitlement to weekly payments will be determined on the basis that the worker is not a seriously injured worker and weekly payments paid under this section until then will not be recoverable from the worker). 42—Federal minimum wage safety net (1) Despite the preceding sections in this Subdivision, if the combined amount that a worker would receive in respect of any incapacity for work in any week applying under any such section would result in the worker receiving less than the Federal minimum wage (adjusted, in the case of a worker who was working at the relevant date on a part‑time basis so as to provide a pro‑rata payment), the amount of compensation payable under this Subdivision will be increased so that the combined amount equals the Federal minimum wage (or, if relevant, the Federal minimum wage as so adjusted). (2) For the purposes of this section— (a) a reference to the combined amount is a reference to the combined total of the amount of compensation that would otherwise be payable under this Subdivision and the amount of the designated weekly earnings of the worker; and (b) a reference to the relevant date is a reference to the date applying in relation to the worker under section 5(16)(a); and (c) a reference to a worker who is working on a part‑time basis will be determined after taking into account the usual work patterns of workers in employment of the kind in which the worker was working at the relevant date. (3) The component of the relevant amount under subsection (1) that is constituted by the Federal minimum wage will be adjusted from time to time to reflect changes to the wages applying under a national minimum wage order under Part 2‑6 of the Fair Work Act 2009 of the Commonwealth in accordance with a scheme prescribed by the regulations. 43—Return to work obligations of worker (1) A worker who has current work capacity must, in cooperation with the employer or Corporation, make reasonable efforts to return to work in suitable employment or pre‑injury employment at the worker's place of employment or at another place of employment. (2) For the purposes of this section, a worker is to be treated as making a reasonable effort to return to work in suitable employment or pre‑injury employment during any reasonable period in which— (a) the worker is waiting for the commencement of any recovery/return to work services that are required to be provided under a recovery/return to work plan for the worker; or (b) the worker is waiting for a response to a request for suitable employment or pre‑injury employment made by the worker and received by the employer; or (c) if the employer's response is that suitable employment or pre‑injury employment will be provided at some time, the worker is waiting for suitable employment or pre‑injury employment to commence. 44—Termination of weekly payments on retiring age retiring age means— (a) if there is a normal retiring age for workers in employment of the kind from which the worker's injury arose—that age; or (b) the age at which the worker would, subject to satisfying any other qualifying requirements, be eligible to receive an age pension under the Social Security Act 1991 of the Commonwealth, (2) Weekly payments are not payable under this Division in respect of a period of incapacity for work falling after the date on which the worker reaches his or her retiring age. (3) However, if a worker who is within 2 years of his or her retiring age or above his or her retiring age becomes incapacitated for work while still in employment, weekly payments are payable for any period of incapacity falling within 104 weeks after the date on which the incapacity for work first occurred (unless suspended, reduced or discontinued under another provision of this Act and subject to any other relevant provision).