Section 19(3) of the SRC Act provides a graduated step up in the % of NWE payable, depending on the % of Normal Weekly Hours worked in a week. The intention of the provision is to provide an incentive to injured employees to return to full-time work.
The current practice for full-time members of the ADF (serving or discharged) is to default NWH as 36.75 hours per week. This is appropriate for the great majority of cases but may serve to unfairly disadvantage clients in a very small number of cases.
This could occur for example where a member who has been discharged is in full-time employment of 35 hours per week but remains unable to work at his or her pre-injury military duties. The medical evidence is that the member would be capable of working 36.75 hours in their current duties if those hours were available in their particular employment. In such a case, the member's compensable injury is not preventing him or her from working 36.75 hours per week as he/she is working all the hours available and is considered by their employer to be working full time. The member can be considered to have returned to full time work, even though they are not working the default 36.75 hours.
In such a case it would be appropriate to vary the NWH to the client's current normal weekly hours and to provide the client with the benefit of the incentive structure in s 19(3).
Before varying NWH in such cases, advice should be obtained from the employer to the effect the client is considered to be a full-time employee (as apposed to permanent part-time) and medical advice should indicate the client is able to work the full 36.75 hours (if they were available) performing current duties, but remains unable because of the injury to perform full pre-injury duties.