Incapacity payments are payable under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The Act under which liability for the incapacitating injury was accepted for dictates which Act incapacity payments are payable under.
1.1.1 Quick reference guides
The quick reference guides provide a summary of how incapacity payments are calculated by Act and can be found at: http://dvashare/BusinessUnits/Support/DSR/RC/MRCGTools/Pages/Incapacity.aspx
1.1.2 Transitional provisions
Where a person is incapacitated by injuries that arose under both the SRCA and MRCA and would have an entitlement to incapacity payments under both Acts, section 15 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (CATP) dictates that the person should be paid under the MRCA only.
1.1.3 SRCA
The current Commonwealth workers compensation Act is the Safety, Rehabilitation and Compensation Act 1988 (SRCA).
There have been three earlier Commonwealth compensation Acts, prior to the enactment of the SRCA. Only two of these Acts ever provided ADF members with weekly payments for incapacity for work. The relevant Acts are:
Commonwealth Employees Compensation Act 1930 (the '1930 Act') and
Compensation (Commonwealth Government Employees) Act 1971 ('1971 Act')
These Acts have now been repealed.
1.1.3.1 Incapacity for injuries under 1971 Act and 1930 Act
Eligibility to receive incapacity payments is determined by provisions of the Act in place at the date of the (original) injury. The calculation of the amount payable is however determined by provisions of the Act in place during the period of incapacity.
In practice, claims for periods of incapacity predating 1 December 1988 are now very rare. Most payments for 'old Act' injuries now relate to incapacity for work which occurred since December 1988, and are thus calculated under SRCA provisions.
Part X of the SRCA contains 'transitional provisions' which preserves entitlements to incapacity payments (among other benefits) for those injured under the 1930 and 1971 Acts, despite the repeal of those Acts. Thus, section 124 of the SRCA deals both with current incapacity and pre-1988 periods of incapacity, for old-Act liability cases.
Subsection 124(1A) and Subsection 124(2) say:
124(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
124(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
- where the injury, loss or damage was suffered before the commencement of the 1930 Act – under the 1912 Act
- where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the injury loss or damage was suffered, or
- in any other case – under the 1971 Act as in force when the injury, loss or damage was suffered.
Furthermore, Subsection 124(7) says:
The rate of compensation (if any) that a person is, by virtue of this section, entitled to receive under Subsection 17(5) in respect of the death of an employee, or under Section 19, 20, 21, 22 or 31 in respect of an incapacity, where the compensation relates to a period occurring before the commencing day, shall be the same as the rate of compensation that would have been payable to that person in relation to that period, if this Act had not been enacted, under:
- where the period occurred before the commencement of the 1930 Act – the 1912 Act
- where the period occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act – the 1930 Act as in force during the period
- in any other case – the 1971 Act as in force during the period.
1.1.3.2 Injured under 71/30 Acts, but incapacitated during currency of SRCA
Where the person was injured under either of the 1971 or 1930 Acts but as a result, a period of incapacity occurred after 1 December 1988:
compensation is only payable if it would also have been payable under the Act current at the date of injury
however the amount of compensation payable is to be calculated in accordance with the provisions of the SRCA, i.e. the Act in place at the time of the onset of incapacity, (Note: Not that Act current merely at the time of the original injury).
1.1.3.3 Injured under 71/30 Acts, and incapacitated before SRCA commenced
Where the person was injured under either of the 1971 or 1930 Acts and is only now claiming a period of incapacity that occurred prior to 1 December 1988:
compensation is only payable if it would also have been payable under the Act current at the date of injury
furthermore the amount of compensation payable is to be calculated in accordance with the provisions of the old Act, i.e. that which was in place during the incapacity.
1.1.3.4 Comparison of SRCA with the 1971 Act
The concept of incapacity for work for compensation purposes has historically been one of an injury diminishing or removing the worker's power to earn wages in some suitable employment.
Under the 1971 Act, weekly payments for incapacity were made at a sick leave rate of pay for a period, and thereafter at statutory rates. This was not always equitable in terms of an income maintenance concept because the statutory rate of compensation did not maintain income in any real sense.
In the 1988 Act, the concept of total and partial incapacity (as it appeared in the 1971 Act), was removed. A member's loss of earning capacity (i.e. incapacity) is now measured by taking the Normal Weekly Earnings (NWE) and subtracting what he or she is able to earn in suitable employment.