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Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011 (No. 29 of 2011)
Requested:  20 Apr 2014
Consolidated as at:  21 Feb 2012

Division 4 - Payment of weekly payments

88. When weekly payments to be made

      (1) If the Commissioner determines that a person is entitled to weekly payments under this Act, the Commissioner is to pay the person weekly payments in relation to a period that begins on the day on which the determination is made.

      (2) The Commissioner is to make weekly payments to a person on a weekly or fortnightly basis, as determined by the Commissioner after consultation with the person.

89. Entitlement to weekly payments where person ceases to reside in this State

A person who receives weekly payments under this Act and who ceases to reside in this State is not entitled to continue to receive the weekly payments unless the person proves, in the manner and at the intervals, if any, that are prescribed –

(a) the person's address and identity; and

(b) that he or she continues to be incapacitated for work because he or she has incapacity of a degree equal to or greater than the degree of incapacity to which the calculation of the weekly payments relate.

90. Paid leave during period of incapacity

      (1) In this section –

long service leave entitlement period, in relation to a person, means any period during which the person would be entitled, under the person's contract of employment in force during the period of incapacity, to be absent from his or her employment on long service leave on full or part pay;
recreational leave entitlement period, in relation to a person, means any period during which the person would be entitled, under the person's contract of employment in force during the period of incapacity, to be absent from his or her employment on annual recreational leave on full pay.

      (2) If, during a period for which weekly payments would otherwise be payable to a person who has a compensable disease under this Act, there occurs any recreational leave entitlement period –

(a) the person must be given by his or her employer, in lieu of his or her annual recreational leave in respect of that period, a similar period of leave on full pay –

(i) at some time within 3 months from the date of his or her return to work; or

(ii) at the termination of his or her right to weekly payments under this Act if he or she does not then return to work; or

(b) if the person so desires, the person may, by arrangement with his or her employer, take annual recreational leave during the period of incapacity for which weekly payments are payable.

      (3) If, during a period for which weekly payments would otherwise be payable to a person who has a compensable disease under this Act, there occurs any long service leave entitlement period –

(a) the person must be given by his or her employer, in lieu of his or her long service leave in respect of that period, a similar period of leave on full or part pay –

(i) at some time within 3 months from the date of his or her return to work; or

(ii) at the termination of his or her right to weekly payments under this Act if he or she does not then return to work; or

(b) if the person so desires, the person may, by arrangement with his or her employer, take a period of long service leave during the period of incapacity for which weekly payments are payable.

      (4) If a person takes annual recreational leave or a period of long service leave during a period of incapacity in accordance with subsection (2) or (3), the person is not entitled to receive weekly payments during that annual recreational leave or long service leave.

      (5) An employer must not attempt to cause or require a person to take annual recreational leave or long service leave during a period of incapacity for which weekly payments are payable to the person.

Penalty:

Fine not exceeding 100 penalty units.

91. When weekly payments may be terminated or reduced

      (1) Except in pursuance of a determination made by the Tribunal under section 58 or section 94, the Commissioner may, subject to this section, terminate or reduce a weekly payment made to a person only if –

(a) the payment is in respect of total incapacity and the person has returned to work; or

(b) the person –

(i) is receiving the weekly payment in respect of partial incapacity; and

(ii) is receiving weekly earnings in excess of the amount upon which the amount of the weekly payment was determined; or

(c) a medical practitioner who has examined the person has given a medical certificate certifying that, in the practitioner's opinion –

(i) the person has wholly recovered, or substantially recovered, from the effects of the asbestos-related disease in respect of which the payment is being made; or

(ii) the person's incapacity is no longer due, wholly or substantially, to that disease or another asbestos-related disease.

      (2) A certificate referred to in subsection (1)(c) is to specify the grounds upon which the opinion expressed in it is given.

      (3) If the Commissioner, for the reason specified in subsection (1)(c), intends to terminate or reduce a weekly payment made to a person, the Commissioner must serve on the person –

(a) notice of the Commissioner's intention; and

(b) if the Commissioner's intention to terminate or reduce is based on a medical certificate referred to in subsection (1)(c), a copy of that certificate.

      (4) A notice, referred to in subsection (3)(a), to a person must state that the Commissioner intends to –

(a) terminate the weekly payment being made to the person; or

(b) reduce that payment by the amount specified in the notice –

at the expiration of a period of 10 business days from the day on which the notice is served on the person.

      (5) A notice referred to in subsection (3)(a) must contain a statement informing the person of the person's right to refer the termination or reduction of the weekly payments to the Tribunal for determination.

      (6) A person who has been served with a notice under subsection (3)(a) and who wishes to dispute the termination or reduction of the weekly payments being made to him or her may refer the matter to the Tribunal under section 94 or section 95.

      (7) A person may only refer the matter to the Tribunal under section 94 or section 95 within 40 business days from the date on which the person's weekly payments were terminated or reduced.

92. Weekly payments cease when determination made that person has imminently fatal asbestos-related disease

An entitlement, of a person who has made an application for compensation, to weekly payments under section 84 in relation to a disease ceases if the Commissioner receives from a medical panel a determination under this Act that the person has an imminently fatal asbestos-related disease.

93. Weekly payments cease on pensionable age

      (1) In this section –

pension age, in relation to a person, means the date on which the person attains the pension age, within the meaning of the Social Security Act 1991 of the Commonwealth, in relation to that person.

      (2) Subject to subsection (3), an entitlement, of a person who has made an application for compensation, to weekly payments under section 84 in relation to a disease ceases –

(a) if the application is made before the date on which the person attains the pension age, on the person attaining that year of age; or

(b) if the application is made on or after the date on which the person attains the pension age –

(i) on the date one year after the day on which the application is made; or

(ii) if another date is prescribed, that date.

      (3) If the terms and conditions of a person's employment permit the person to continue in that employment beyond the pension age, the person may refer to the Tribunal for determination the question as to whether or not the provisions of subsection (2) should apply to him or her.

      (4) The Tribunal may determine that weekly payments of compensation may be continued beyond the dates mentioned in subsection (2) in relation to a person who has referred a question to the Tribunal under subsection (3), if the Tribunal is satisfied that –

(a) the terms of the person's employment would have entitled him or her to continue in that employment beyond the pension age; and

(b) the person, but for an asbestos-related disease, intended to continue in that employment beyond that age; and

(c) the incapacity of the person resulting from that disease will continue beyond the date on which he or she attains the pension age.

      (5) If the Tribunal makes a determination under subsection (4) that weekly payments may be continued beyond the dates mentioned in subsection (2) in relation to a person, the Tribunal must determine the period for which the payments are to be continued.

94. Reference to Tribunal of refusal of Commissioner to pay weekly payments

      (1) A person –

(a) in relation to whom the Commissioner has made a determination under section 70(1)(a) that the person is entitled to compensation; and

(b) who is aggrieved by a decision made by the Commissioner that the person is not entitled to weekly payments –

may refer the matter to the Tribunal.

      (2) If a decision made by the Commissioner that a person is not entitled to weekly payments is referred to the Tribunal under subsection (1), the Tribunal may determine the matter by making a decision in relation to the matter that the Commissioner may make under this Act.

      (3) A decision made by the Tribunal in accordance with subsection (2) is to be taken to be a decision made by the Commissioner under this Act, except that the decision may not be referred to the Tribunal.

95. Reference to Tribunal of matters relating to amount of weekly payments

      (1) If a person to whom weekly payments are payable under this Division, or the Commissioner, is of the opinion that the amount of the weekly payments is insufficient or excessive, the person or the Commissioner may refer the matter to the Tribunal.

      (2) If a matter is referred to the Tribunal under subsection (1) by a person or the Commissioner, the Tribunal is to determine the amount of weekly payments in respect of the person to whom the matter relates that appears to the Tribunal to be reasonable and appropriate in the circumstances.

      (3) A determination under subsection (2) in relation to a person is to be made having regard to –

(a) the current weekly earnings of another worker who is –

(i) of the same grade or classification as the person; and

(ii) employed by the same employer in similar work to the person; and

(b) the earnings that the person might reasonably have earned during the period of incapacity, if he or she had continued the employment he or she had in the relevant period; and

(c) any other relevant matter.

      (4) In determining the amount of weekly payments under subsection (2), the Tribunal is to have regard to the principle that a person should not receive, during a period of incapacity, weekly payments greater than the payments the person would have received if the person had worked in his or her usual employment during that period.

      (5) The amount of weekly payments determined by the Tribunal under subsection (2) is to be the amount of weekly payments payable to the person, although the amount may be a greater or lesser amount than the weekly payments otherwise payable under this Division.

      (6) If the weekly payments determined by the Tribunal under subsection (2) involve a reduction in the amount of weekly payments being made to a person, the Tribunal is to determine the date from which that reduction is to take effect.

      (7) The date determined under subsection (6) is to be a date that is not earlier than the date of the determination of the Tribunal.

96. Weekly payment may not be assigned, &c.

      (1) A weekly payment is not capable of –

(a) being assigned, charged, or taken in execution; or

(b) passing to any other person by operation of law.

      (2) No claim may be set off against a weekly payment.



CURRENT VIEW: 31 Oct 2011 - 1 Jul 2013
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