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44.3 Capable of Engaging in Any Work

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Whether the client is capable of engaging in any work is relevant to the amount of compensation payable to former employees under Part X of the SRC Act.

The capacity of a former employee to engage in any work arises in the following circumstances:

  • s 131 applies to former employees under 65 who are in receipt of a superannuation pension and are unable to engage in any work;
  • s 132 applies to former employees under 65 who are not in receipt of a superannuation pension and are unable to engage in any work;
  • s 132A applies to former employees under 65 who are capable of earning an amount in any work (in its form on and after 1 April 2002).

On 1 April 2002, s 132A was amended so that the section now refers to the former employee being "capable of engaging in any work", aligning this provision with the employment test in ss 131 and 132. Before the amendment, the test under this section was whether the employee was "capable of engaging in suitable employment".

While ss 131 and 132 refer to "any work", the Federal Court and the AAT have suggested that this should be read as a reference to "any suitable employment".

Where s 132A applies, the amount that the client is able to earn in any employment (until 1 April 2002 earnings in suitable employment) is subtracted from the compensation otherwise payable. This amount is collected in a subsequent question.

Sections 131, 132 and 132A refer to "any work". The Federal Court and the AAT have suggested, in relation to ss 131 and 132, that this should be read as a reference to "any suitable employment". However, amendments to s 132A(2) and (3) which commenced on 1 April 2002 make it clear that, for the purposes of s 132A, all earnings from work (including self-employment) are to be taken into account as AE. Section 132A is not limited only to earnings from suitable employment, as defined in s 4(1).

References
  • DCI 40 : Retraining As A Means of Securing Suitable Employment
  • Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001, Pt 3, Sch 2 : Amendment of s 132A
  • Comcare v Woodbridge (1996) (FC 96/84, 13/2/96) : "any work"
  • Re O'Halloran and Comcare (1995) (AAT 10198, 25/5/95) : "any work"