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3.8 NWE in relation to 'transitional' (i.e. pre-SRCA) cases
NWE is not calculated for those periods of incapacity predating 1 December 1988.
Incapacity payments under the 1971 Act and the 1930 Act did not utilise the NWE concept as a basis for payment. Weekly compensation for incapacity to work was – during the currency of these Acts – made on the basis of published statutory rates, including additional specified amounts in respect of dependants, varied annually.
Section 25 of the 1971 Act does provide for an amount titled 'Average Weekly Earnings' (AWE) to be calculated using a period of unspecified length taken from immediately before the injury and not earlier than 12 months prior to it. However, the function is quite different to that of NWE. The AWE represents a maximum payment – i.e. a ceiling – for incapacity benefits. As such, it is/was not required to be calculated in every case where a client was incapacitated.
Information on calculating incapacity payments under the 1971 or 1930 Act can be found in chapter 12.
3.8.1 Injury occurred under an old Act and period of incapacity is after 1/12/1988 (SRCA Commencement)
NWE for periods of incapacity occurring under the SRCA although arising from old Act injuries, is calculated in the same way as NWE for a post-88 injury.
Subsections 124(1A) and (2) of the SRCA provides that compensation is payable under the SRCA for an injury occurring under the earlier Acts, providing only that compensation would also have been payable under the 1971 Act or the 1930 Act, had those Acts not been repealed. A period of incapacity arising under the SRCA is to be paid in the manner specified under the SRCA (i.e. calculated by reference to S19, 20, 21, etc.) even though the injury responsible for that incapacity originated under an earlier Act.
This means that the delegate must determine an NWE in those cases in accordance with the policy discussed earlier in this chapter. That NWE will usually be the rank/pay level at the date of discharge, however in some circumstances it may be rank/pay level at date of injury. Paragraph 8(10)(b) requires that NWE be determined as the higher of pre-injury earnings or pre-discharge earnings.
3.8.2 Injury incurred under an old Act and period of incapacity is before 1/12/1988 (SRCA commencement)
Subsection 124(7) of the SRCA requires such pre-88 periods to be paid at the rates current when the incapacity occurred i.e. as if the old Act had not been repealed.
In cases where a delegate is retrospectively paying incapacity benefits in respect of a period of incapacity which occurred before the commencement of the SRCA Section 124(7) applies. This section requires the payment to be calculated by the method in force at the time of the period of incapacity.
This means that for periods of incapacity occurring before 1 December 1988, delegates should not determine NWE but pay compensation in accordance with the statutory rates current at that time (Chapter 12).
3.8.3 NWE for 'Former Employees' under the SRCA
When the client is a 'Former Employee' within the meaning of section 123 of the SRCA. i.e. the client was actually in receipt of incapacity payments on 1 December 1988 (the SRCA's commencing day) special provisions apply as per chapter 13.