Notional Relevant Periods

Section 9 (3) states:

“Where in any case the application of subsection (2) would require that a period be disregarded for the purposes of calculating the relevant period in relation to an employee, and as a result of disregarding that period:

1. it would be impracticable to calculate under section 8 the normal weekly earnings of the employee before an injury; or

2. the normal weekly earnings as so calculated would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment by the Commonwealth ... before the injury;

subsection (2) shall not apply in that case, but the normal weekly earnings of the employee during that period shall be taken to be the amount that would have been his or her normal weekly earnings during that period if the variation had taken effect at the beginning of that period.”

This means that, where it is:

• impractical; or

• non-representative of true NWE

to use too short a relevant period, the shorter time frame is extended to 2 weeks and deemed to represent the employee's earnings for that period.

By normal use of section 9 (2), the relevant period in the example would be reduced to 1 day, which would mean that the new workplace agreement arrangement would not be correctly represented by the NWE.

Section 9 (3) allows the short period to be artificially extended.