This question arises from the application of Division 3 of Part X, which sets out special transitional provisions in relation to weekly incapacity compensation for certain former employees. In particular, whether the claimant was in receipt of a pension under a superannuation scheme on the commencing day of the SRC Act (1/12/1988) is directly relevant to:

• s 131, which applies to former employees under 65 who were in receipt of a superannuation pension on 1/12/88 and are incapable of engaging in work;
• s 132, which applies to former employees under 65 who were NOT in receipt of a superannuation pension on 1/12/88 and are incapable of engaging in work;
• s 132A(2), which applies to former employees under 65 who were in receipt of a superannuation pension on 1/12/88 and are capable of engaging in work;
• s 132A(3), which applies to former employees under 65 who were NOT in receipt of a superannuation pension on 1/12/88 and are capable of engaging in work;
• s 135, which applies to former employees who were 65 and were in receipt of a superannuation pension on 1/12/88;
• s 136, which applies to former employees who were 65 and were NOT in receipt of a superannuation pension on 1/12/88.

Lump sum benefits

Receipt of a superannuation lump sum benefit is NOT relevant to the application of Division 3 of Part X; any such payment is not taken into account in determining the weekly incapacity compensation entitlement of former employees. Note, however, that other lump sum payments (eg. redemptions and "Table of Maims" payments) may affect entitlements under Division 2 of Part X for periods prior to 1/12/1988. Periods of incapacity after 1/12/1988 are unaffected by "Table of Maims" payments.

"In receipt of" a pension

The phrasing of the relevant sections in Division 3 of Part X makes it clear that the former employee must have been "in receipt of a pension under a superannuation scheme" on 1 December 1988, the commencing day of the SRC Act. The sections do NOT apply where entitlement to superannuation arose after 1/12/88.

Entitled to receive a pension

The former employee should be treated as being in receipt of a pension on 1 December 1988, if they were entitled to receive a pension at that day but had not yet started to receive it (eg. they had already discharged, but their entitlement had not yet been processed by 1/12/1988).

Superannuation must be related to the compensable injury

If the superannuation pension received by the former employee has no causal relationship with the compensable injury (i.e. the superannuation was not paid as a result of a medical discharge for the compensable injury), the superannuation generally is to be disregarded for the purposes of Part X.

However, an exception to this should be made where a reservist has other employment contributing to NWE and receives superannuation arising from that employment. In this case, the superannuation should be taken into account.

References

• DCA 53 : Superannuation from unrelated employment
• Re Milliken and Comcare (1991) 14 AAR 464 : Superannuation from unrelated employment