Reductions In NWE Without Affecting Minimum Earnings

Section 8 (10) should not be confused with section 8 (9), which provides for ongoing fluctuations to the NWE.

This section relates to decreases only.  Its application usually results from isolated situations, where the NWE must be corrected to more accurately reflect the employee's current earning capacity were they not incapacitated.

Additionally, it should be noted that this section cannot be used to reduce an ex-employee's NWE to nil where the position the employee used to work in has been abolished.  In this case, the employee has every right to argue that, but for his or her injury, he or she would have been able to be employed in similar duties elsewhere.

Section 8 (10) states:

“If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsection, would exceed:

1. where the employee continues to be employed by the Commonwealth ... - the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or

2. where the employee has ceased to be employed by the Commonwealth ... - whichever is the greater of the following amounts:

(i)the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth ... in the employment in which he or she was engaged at the date of injury;

(ii)the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth ... in the employment in which he or she was engaged at the date on which the employment by the Commonwealth ... ceased;

the amount so calculated shall be reduced by the amount of the excess.”

Where alterations to NWE are made under section 8 generally, but they do not accurately reflect what an employee would normally be earning were they not incapacitated, section 8 (10) provides that the NWE must be reduced to its correct level.

Should the application of a pay variation to the entire NWE mean that the employee's NWE is higher than if he or she had not been injured or had not ceased work, then sec — t — ion 8 (10) can be used to reduce the NWE by the excess.

Therefore, where the current circumstances against which the NWE is based results in cessation of overtime and/or allowances, section 8 (10) is used to deduct overtime and allowances, as they no longer apply to the new NWE.

As is demonstrated here, section 8 (9) must not be used and cannot apply, as there is no allowance fluctuation (that is, increasing and decreasing the NWE) due to periodic adjustment of such allowance.