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34.2 Operation of S19(3)

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Under the SRCA, normal weekly hours (NWH) are required to determine the percentage of normal weekly earnings (NWE) payable under S19(3), i.e. the rate compensation payable for periods of incapacity after the expiry of the first 45 weeks of compensation.

Under S19(3), the rate of compensation payable is, in part, determined by the % of NWH worked in a week. A greater % of NWH worked means a greater % NWE (minus AE) is payable, rising to (where the full NWH are worked) 100% of NWE minus AE.

The normal weekly hours for which the client is employed is relevant to the operation of S19(3)(b)-(f). These subsections provide for a higher rate of total earnings (earnings from employment plus compensation) where the client is engaged in actual hours of employment during a week. The relationship between actual hours and normal hours of employment are shown in the following Table.

Actual employment

Total weekly earnings

a)not employed

75% of NWE

b)< 25% of NWH

80% of NWE

c)> 25%, < 50% of NWH

85% of NWE

d)> 50%, < 75% of NWH

90% of NWE

e)> 75%, < 100% of NWH

95 % of NWE

f)100% of NWH

100% of NWE

[NWH = normal weekly hours. NWE = normal weekly earnings]

The intent of S19(3) is to provide a financial reward, or incentive, for a return to full working hours by a client. This concept fits well with the primary RTW goal in the administration of the Act of a return to 'same employer, same duties' and to pre-injury NWH. Note that DVA does not begin to pay incapacity payments until our clients are no longer serving members and 'same employer, same duties, same NWH' is not an option.

NWH (as defined in S4) is based on average number of hours worked in each week by the employee in his or her employment during the relevant period as calculated for the purpose of applying the formula in Subsections 8(1) or (2). The relevant period is taken under the Act to be the 'latest period of 2 weeks before the date of the injury'.

There are no 'standard' working hours as a condition of service for members of the ADF. The default NWH of 36.75 hours per week used in the Incapacity Calculator is a standard derived from the APS.

It is important to note that S19(3), in its context, requires attention to the actual employment activities of the client, not to their employment status.

Note also that actual hours of employment per week cannot be deemed.