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13.1.1 Essential Requirements for 'former employee' status
Thus the essential requirements for a person to be a 'former employee' are:
- he/she was receiving weekly payments of compensation immediately before 1 December 1988 (the 'commencing day' of the SRCA), i.e. actually on 30 November 1988, and
- he/she had ceased to be a Commonwealth employee before 1 December 1988.
It is important to note that the person must actually have been receiving weekly compensation, it is not sufficient that they were entitled to compensation at that day. In the case of Comcare v. Neil (1993) the Federal Court decided that the phrase 'was receiving' should be given its natural meaning, i.e. it is not sufficient that a person was simply entitled to receive the 1971 Act's incapacity payments on 30 November 1988. That person must have actually been, as a historical fact, in receipt of payments made in respect of that day, to qualify as a 'former' employee.
Consequently, a retrospective determination – i.e. one made today under the SRCA – that a person was entitled to incapacity payments on the 30 November 1988 does not mean that this person is a 'former'.