Commonwealth Employees' Compensation Act 1948 (Cth)
COMMONWEALTH EMPLOYEES’ COMPENSATION.
An Act to amend the
Commonwealth Employees’ Compensation Act 1930-1944, and for other purposes.
[Assented to 6th December, 1948.]
[Date of commencement, 3rd January, 1949.]
BE it enacted by the King’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—
(2.) The
(3.) The Principal Act, as amended by this Act,
may be cited as the
“4.—(1.) In this Act, unless the contrary intention appears—
‘active service’ has the same meaning as in section one hundred of the
Australian Soldiers’ Repatriation Act 1920-1948;‘County Court’ means a County Court, District Court, Local Court, or any court exercising a limited civil jurisdiction and presided over by a judge or a police, stipendiary or special magistrate, of a State or a Territory of the Commonwealth;
‘dependant’ means, in relation to a deceased employee—
(
a ) a member of the employee’s family;(
b ) a person to whom the employee stoodin loco parentis or who stoodin loco parentis to the employee;(
c ) any ex-nuptial child or grand-child of the employee; and(
d ) if the employee was an ex-nuptial child, any parent or grand-parent of the employee,who was wholly or in part dependent upon his earnings at the date of his death or who would, but for his incapacity due to the injury, have been so dependent;
‘disease’ includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease;
‘employee’ means—
(
a ) an officer who is subject to theCommonwealth Public Service Act 1922-1948;(
b ) a person who is temporarily employed under that Act;(
c ) an officer or employee to whom, or included in a class of officers or employees to which, the Governor-General has declared in pursuance of that Act that the provisions of that Act shall not apply;(
d ) any member of the Naval, Military or Air Forces of the Commonwealth except—(i) a member of any of those Forces who, prior to the first day of July, One thousand nine hundred and forty-seven, was appointed or enlisted—
(1) for service in any part of those Forces which was raised in time of war for war service, or solely
for service in time of war or during that time and a definite time thereafter; or
(2) in the Citizen Forces and called up for continuous service for the duration of and directly in connexion with the war;
(ii) a member of the Permanent Forces who was appointed or enlisted prior to the first day of July, One thousand nine hundred and forty-seven, and is not included in either of the classes specified in the preceding sub-paragraph of this definition—during any time of war prior to the first day of January, One thousand nine hundred and forty-nine, for which he is employed on active service; and
(iii) a member of the Interim Forces; and
(
e ) a person who has entered into or works under a contract of service or apprenticeship with the Commonwealth, whether by way of manual labour, clerical work, or otherwise, and whether the contract is expressed or implied, is oral or in writing,but does not include—
(
f ) an outworker;(
g ) an officer or employee of the Public Service of a Territory of the Commonwealth; or(
h ) any master, mate or engineer, or operator of the wireless telegraph installation, of a ship engaged in trade and commerce;‘injury’ means any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury;
‘medical, surgical or hospital treatment’ means—
(
a ) treatment by a duly qualified medical practitioner, a registered dentist, a registered physio-therapist or a registered masseur;(
b ) the provision of skiagrams, crutches, artificial members and artificial replacements;(
c ) treatment and maintenance as a patient at a hospital; or(
d ) nursing attendance, medicines, medical and surgical supplies and curative apparatus supplied or provided in a hospital or otherwise;‘member of the family’, in relation to an employee, means the wife or husband, father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister,
half-brother, half-sister, adopted child, mother-in-law or any woman who for not less than three years immediately prior to his death or incapacity was wholly or mainly maintained by the employee and who, although not legally married to him, lived with him as his wife on a permanent and
bona fide domestic basis and who, at the date of his death or incapacity, is maintaining one or more children under sixteen years of age or is not less than fifty years of age;‘member of the Interim Forces’ has the same meaning as in the
Interim Forces Benefits Act 1947;‘outworker’ means a person to whom articles or materials are given out to be treated or manufactured in his own home or on other premises not under the control or management of the Commonwealth;
‘Territory of the Commonwealth’ includes a Territory administered as a trust territory by Australia in pursuance of Chapter XII. of the Charter of the United Nations;
‘the Commissioner’ means the Commissioner for Employees’ Compensation;
‘time of war’ and ‘war service’ have the same respective meanings as in the
Defence Act 1903-1948, but any reference to ‘war’ or to ‘the war’ is a reference to the war which commenced on the third day of September, One thousand nine hundred and thirty-nine.
“(2.) In the application of the provisions of this Act to and in relation to an employee to whom section ten of this Act applies, any reference in those provisions to personal injury by accident arising out of or in the course of an employee’s employment by the Commonwealth shall be read as including a reference to a disease due to the nature of the employment in which the first-mentioned employee was engaged by the Commonwealth.
“(3.) For the purposes of sections seventeen and seventeen a of this Act, any reference to an employee shall, where the employee has died as the result of the injury, be read as a reference to any dependant of the deceased employee who has a legal claim in respect of the death of the employee.
“(4.) Any reference in the provisions of this Act applicable to an employee after the date of the injury shall be read as including a reference to a retired employee.”.
“9.—(1.) If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act.
“(2.) Where an employee is required by the terms of his employment by the Commonwealth, or is expected by the Commonwealth, to attend a trade, technical or other training school, he shall, for the purposes of this Act, be deemed to be employed by the Commonwealth while he is attending that school.
“(3.) If it is proved that the injury to an employee is attributable to his serious and wilful misconduct, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent disablement, be disallowed.
“9a.—(1.) Where personal injury by accident is caused to an employee while he is travelling to or from—
(
a ) his place of employment by the Commonwealth (including any school in relation to which sub-section (2.) of the last preceding section applies); or(
b ) any place which it is necessary for him to attend to obtain a medical certificate or to receive medical, surgical or hospital treatment or compensation in respect of a previous injury,
the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the accident were an accident arising out of or in the course of his employment.
“(2.) In this section, ‘travelling’ means travelling by the shortest convenient route for the journey and does not include travelling during or after any substantial interruption of the journey or any substantial deviation from the route made for a reason unconnected with the employee’s employment, attendance at the school or obtaining the certificate, treatment or compensation, as the case may be:
“Provided that the Commissioner may, on behalf of the Commonwealth, accept liability, if he considers that in the circumstances of any particular case the nature, extent, degree and content of the risk of accident was not materially changed or increased by reason only of any such interruption or deviation.
“(3.) For the purpose of the application of the provisions of this section to and in relation to a member of the Defence Force who is an employee, the place at which the employee performs naval, military or air-force duty, training, practice or exercise shall be deemed to be the place of his employment by the Commonwealth.”.
(
a ) by omitting sub-section (1.) and inserting in its stead the following sub-section:—“(1.) Where—
(
a ) an employee is suffering from a disease and is thereby incapacitated for work; or(
b ) the death of an employee is caused by a disease,and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.”;
(
b ) by omitting from sub-section (4.) the words “during the period of twelve months immediately preceding” and inserting in their stead the words “prior to”; and(
c ) by omitting sub-section (5.).
(
a ) by inserting in sub-section (1.), after the word “work”, the words” or but for the operation of clause (ii) of subparagraph (b ) of paragraph (1a.) of the First Schedule to this Act”;(
b ) by omitting the words “medical, surgical and hospital treatment” (wherever occurring) and inserting in their stead the words “medical, surgical or hospital treatment”; and(
c ) by omitting from sub-section (2.) the words but shall not in any case exceed One hundred pounds” and inserting in their stead the words “,but shall not exceed One hundred pounds unless the Commissioner considers that the exceptional circumstances of any case warrant special approval of an amount in excess of that sum”.
(
a ) by omitting sub-section (1.) and inserting in its stead the following sub-sections:—“(1.) Subject to this Act, where an employee sustains, by accident arising out of or in the course of his employment, any of the injuries specified in the first column of the Third Schedule to this Act, the compensation payable shall, when the injury results in incapacity other than total and permanent incapacity for work, be the amount specified in the second column of that Schedule opposite the specification of the injury in the first column.
“(1a.) Upon payment of an amount under this section the employee shall not be entitled to any payment in accordance with sub-paragraph (
b ) or sub-paragraph (c ) of paragraph (1.) of the First Schedule to this Act in respectof a period of incapacity for work resulting from the injury, but the amount payable under this section shall not be subject to any deduction in respect of any amount previously paid to the employee in accordance with either of those sub-paragraphs.”; and
(
b ) by omitting sub-section (3.) and inserting in its stead the following sub-section:—“(3.) Where an employee sustains an injury which causes the loss of the sight of both eyes or of an only useful eye, any compensation previously paid under this section in respect of loss of sight shall be deducted from the compensation payable under this section.”.
“13.—(1.) Notwithstanding anything contained in this Act, the amount of compensation payable in respect of an injury or injuries caused by any one accident shall not, except as provided by this section, exceed One thousand two hundred and fifty pounds.
“(2.) Where an injury results in the death or the total and permanent incapacity of the employee for work, sub-section (1.) of this section shall not apply to limit the total amount of compensation payable under this Act.
“(3.) In the application of sub-section (1.) of this section in relation to the total amount of compensation payable to an employee under section twelve of this Act the total amount of any compensation paid to the employee in accordance with the First Schedule to this Act previously to payment to him of the amount specified in the Third Schedule to this Act shall be disregarded.
“(4.) Sub-section (1.) of this section shall not apply to limit the amount of any lump sum payable in pursuance of paragraph (10a.) of the First Schedule to this Act.”.
(
a ) by omitting the word “and” (second occurring) and inserting in its stead the word “or”;(
b ) by omitting the word “section” and inserting in its stead the word “sub-section”; and(
c ) by adding at the end thereof the following sub-section:—“(2.) The provisions of the
Australian Soldiers’ Repatriation Act 1920-1948, theDefence Act 1903-1948, theNaval Defence Act 1910-1948, the regulations made under those Acts and the Air Force Regulations relating to the payment of pension, compensation or other benefits in respect of the incapacity or death of members of the Defence Force shall not apply to or in relation to a member of that Force who is an employee:“Provided that nothing in this sub-section shall affect—
(
a ) any grant of pension, compensation or other benefits under any of those provisions which has been made;(
b ) any right to any such grant which has accrued; or(
c ) any such member’s eligibility for any such grant which arises in respect of the period of his service in that Force,prior to the commencement of this sub-section.”.
“17. If an injury in respect of which compensation is payable under this Act is caused under circumstances which appear to create a legal liability in some person other than the Commonwealth to pay damages in respect of the injury—
(
a ) the employee may take proceedings against that person to recover damages and may also make a claim against the Commonwealth for compensation, but shall not be entitled to retain both damages and compensation;(
b ) the Commissioner may request the employee to take such proceedings and, where the employee takes such proceedings on the request of the Commissioner, the proceedings shall be conducted on the employee’s behalf at the expense of the Commonwealth;(
c ) where the employee receives both compensation under this Act and damages from that other person, he shall repay to the Commonwealth such amount of the compensation as does not exceed the amount of damages recovered from that person;(
d ) upon notice to that person, the Commonwealth shall have a first charge on moneys payable by that person to the employee to the extent of any compensation which the Commonwealth has paid to the employee under this Act;(
e ) where the employee has received compensation under this Act, but no damages or less than the full amount of the damages to which he is entitled, the person liable to pay the damages shall indemnify the Commonwealth against so much of the compensation paid to the employee as does not exceed the damages for which that person is liable; and(
f ) payment of money by that person to the Commonwealth under the last preceding paragraph shall, to the extent of the amount paid, be a satisfaction of the liability of that person to the employee.
“17a.—(1.) Except as provided by this Act, an employee shall not be entitled, in respect of personal injury by accident arising out of or in the course of his employment by the Commonwealth, to receive compensation or any payment by way of compensation from the Commonwealth both independently of and also under this Act.
“(2.) If the injury is an injury in respect of
which an employee is entitled to receive a pension under the
“(3.) Where personal injury is caused to an employee in circumstances which appear to create a legal liability in the Commonwealth to pay damages in respect thereof and the employee has received compensation under this Act, the employee shall not be entitled to take proceedings against the Commonwealth to recover damages unless he commences those proceedings within twelve months after the date upon which he received payment, or the first payment, of compensation under this Act.
“(4.) An employee who recovers damages from the Commonwealth in respect of an injury shall not be entitled to compensation or any payment under this Act in respect of the same injury and any sum received by him under this Act in respect of that injury prior to the award of the damages shall be deducted from the amount of the damages recoverable from the Commonwealth.”.
(
a ) by omitting paragraphs (1.), (1a.), (1b.), (2.) and (3.) and inserting in their stead the following paragraphs:—“(1.) The amount of compensation shall be—
(
a ) where the death of the employee results from the injury—(i) if the employee leaves any dependants wholly dependent upon his earnings—the sum of One thousand pounds and, in addition, an amount of Fifty pounds in respect of each child who, being a dependant under the age of sixteen years at the date of either the injury or the death of the employee, was at the date of the injury wholly or mainly dependent upon the earnings of the employee;
(ii) if the employee does not leave any dependants wholly dependent upon his earnings, but leaves dependants in part dependent upon his earnings—such sum,
not exceeding in any case the amount payable under clause (i) of this subparagraph as is considered by the Commissioner to be reasonable and proportionate to the injury to the dependants; and
(iii) if the employee leaves no dependents—such sum, not exceeding Twenty-five pounds, on account of the expenses of the employee’s burial, as the Commissioner considers reasonable;
(
b ) where the employee is totally incapacitated for work by the injury—a weekly payment during his incapacity of the sum of Four pounds and, in addition, the sum of—(i) One pound five shillings in respect of—
(1) the wife of the employee; or
(2) if he has no wife, or if compensation is not payable in respect of his wife—one female, over the age of sixteen years, who is—
(a) caring for a child under the age of sixteen years and wholly or mainly dependent upon the earnings of the employee; or
(b) a member of the employee’s family,
if she was wholly or mainly dependent upon the earnings of the employee at the date of the injury and remains so dependent; and
(ii) Ten shillings in respect of each child who, at the date of the injury, was under the age of sixteen years and wholly or mainly dependent upon the earnings of the employee and who, being under the age of sixteen years, remains so dependent; and
(
c ) where the employee is partially incapacitated for work by the injury—a weekly payment during his incapacity of the amount of the difference between the weekly amount which he is earning, or is able to earn in some suitable employment or business, after the injury and—(i) his weekly pay at the date of the injury, provided that the payment does not exceed Four pounds; or
(ii) the weekly amount which would have been payable to him under sub-paragraph (
b ) of this paragraph, if he had been totally incapacitated,
whichever is the greater.
“(1a.) Notwithstanding anything contained in paragraph (1.) of this Schedule—
(
a ) where death results from the injury—(i) any amount paid or payable before the death of the employee by way of weekly payments in respect of his total or partial incapacity for work shall not be deducted from the sum payable under clause (i) of sub-paragraph (
a ) of that paragraph, or shall be disregarded in determining the sum payable under clause (ii) of that sub-paragraph, as the case may be; but(ii) the amount by which any lump sum, paid to an employee in pursuance of paragraph (10a.) or paragraph (11.) of this Schedule or section twelve of this Act before the death of the employee, exceeds the total of all weekly payments which would have been payable under subparagraph (
b ) or sub-paragraph (c ) of that paragraph, if they had continued until the date of his death, shall be deducted from the sum payable under clause (i) of sub-paragraph (a ) of paragraph (1.) of this Schedule, or shall be taken into account in determining the sum payable under clause (ii) of that sub-paragraph, as the case may be, provided that the sum so payable is not reduced to less than Two hundred pounds; or(
b ) where the employee is totally or partially incapacitated for work by the injury—(i) no payment shall be made under subparagraph (
b ) or sub-paragraph (c ) of that paragraph which will be in excess of the amount of the weekly pay of the employee at the date of the injury;(ii) the Commissioner shall take into account any payment, allowance or benefit (except child endowment under Part VI.
of the
Social Services Consolidation Act 1947-1948, any pension or allowance in respect of a child dependent upon the earnings of the employee, any payment other than a pension under theSuperannuation Act 1922-1948 or theDefence Forces Retirement Benefits Act 1948, deferred pay payable to the employee, any payment under section seventy-four of theCommonwealth Public Service Act 1922-1948 or under section eight of theCommonwealth Employees’ Furlough Act 1943-1944) which the employee receives from the Commonwealth during the period of his incapacity and shall reduce the amount of the weekly payment otherwise payable under sub-paragraph (b ) or sub-paragraph (c ) of paragraph (1.) of this Schedule to such amount (if any) as he thinks just and proper; and(iii) if the employee is a minor who is not entitled under the terms of any award, order or determination of an industrial authority, any industrial agreement or any law to receive the same rate of pay as an adult, the words ‘Three pounds’ shall be deemed to be substituted for the words ‘Four pounds’ in the application of the provisions of subparagraph (
b ) or sub-paragraph (c ) of that paragraph in relation to the employee while he remains such a minor.
“(2.) The amount of child endowment paid under Part VI. of the
“(3.) For the purposes of this Schedule—
(
a )‘ pay’ means the salary or wages of the employee, and includes—(i) where at the date of the injury the employee was engaged in part-time work for the Commonwealth, or, being a member of the Defence Force, was not paid as such—his earnings from any other employment; and
(ii) unless otherwise prescribed—any allowance payable to the employee in respect of his employment,
but, subject to the regulations, does not include any allowance which is intermittent or which is payable in respect of special expenses incurred or likely to be incurred by the employee in respect of his employment; and
(
b ) any reference to the weekly pay of the employee at the date of the injury means, if the rate of pay of employees of the same class is subsequently varied by competent authority or following upon a variation in the cost of living, the rate of pay as so varied.”;(
b ) by omitting the proviso to paragraph (10.);(
c ) by inserting, after paragraph (10.), the following paragraph:—“(10a.) Where an employee is, subject to clause (ii) of sub-paragraph (
b ) of paragraph (1a.) of this Schedule, entitled to weekly payments in accordance with subparagraph (b ) or sub-paragraph (c ) of paragraph (1.) of this Schedule and, by reason of his retirement on the ground of invalidity caused by the injury, is also entitled to a pension under theSuperannuation Act 1922-1948 or theDefence Forces Retirement Benefits Act 1948, the liability for the weekly payments shall, subject to the regulations, be redeemed by the payment of a lump sum of such amount, not exceeding One thousand pounds, as is determined by the Commissioner, having regard to the injury and the age and occupation of the employee at the date of the injury, and the lump sum may be invested or otherwise applied by the Commissioner for the benefit of the person entitled thereto:Provided that, if the injury is an injury specified in the Third Schedule to this Act and the amount specified in that Schedule in relation to the injury exceeds One thousand pounds, the amount of the lump sum payable under this paragraph shall be not less than the amount so specified.”;
(
d ) by omitting from paragraph (11.) the word “Where” and inserting in its stead the words “Except as provided in the last preceding paragraph, where”;(
e ) by omitting from that paragraph the words “time of the injury” and inserting in their stead the words “date of the injury”; and(
f ) by inserting in paragraph (12.), after the words “weekly payment” (first ocurring), the words “in Australia”.
SCHEDULES.
—
“THE THIRD SCHEDULE. Section 12.
Compensation for Specified Injuries.
Nature of Injury. | Amount Payable. | ||
£ | |||
Loss of both eyes................................................................................................................................. | 1,250 | 0 | 0 |
Loss of an only useful eye, the other being blind or absent................................................................ | 1,250 | 0 | 0 |
Loss of one eye, with serious diminution of the sight of the other:.................................................... | 937 | 10 | 0 |
Loss of one eye.................................................................................................................................... | 500 | 0 | 0 |
Loss of hearing.................................................................................................................................... | 875 | 0 | 0 |
Complete deafness of one ear.............................................................................................................. | 250 | 0 | 0 |
Loss of both hands............................................................................................................................... | 1,250 | 0 | 0 |
Loss of right arm or greater part thereof............................................................................................. | 1,000 | 0 | 0 |
Loss of left arm or greater part thereof................................................................................................ | 900 | 0 | 0 |
Loss of lower part of right arm, right hand or five fingers of right hand............................................ | 875 | 0 | 0 |
Loss of lower part of left arm, left hand or five fingers of left hand................................................... | 787 | 10 | 0 |
Loss of right thumb............................................................................................................................. | 375 | 0 | 0 |
Loss of left thumb:.............................................................................................................................. | 337 | 10 | 0 |
Loss of right forefinger........................................................................................................................ | 250 | 0 | 0 |
Loss of left forefinger.......................................................................................................................... | 225 | 0 | 0 |
Loss of right middle finger.................................................................................................................. | 200 | 0 | 0 |
Loss of left middle finger.................................................................................................................... | 187 | 10 | 0 |
Loss of right ring finger....................................................................................................................... | 175 | 0 | 0 |
Loss of left ring finger......................................................................................................................... | 162 | 10 | 0 |
Loss of right little finger...................................................................................................................... | 162 | 10 | 0 |
Loss of left little finger........................................................................................................................ | 150 | 0 | 0 |
Loss of total movement of joint of right thumb ................................................................................. | 175 | 0 | 0 |
Loss of total movement of joint of left thumb..................................................................................... | 162 | 10 | 0 |
Loss of distal phalanx or joint of right thumb..................................................................................... | 200 | 0 | 0 |
Loss of distal phalanx or joint of left thumb....................................................................................... | 187 | 10 | 0 |
| 175 | 0 | 0 |
| 162 | 10 | 0 |
Loss of two phalanges or joints of right forefinger............................................................................. | 150 | 0 | 0 |
Loss of two phalanges or joints of left forefinger............................................................................... | 137 | 10 | 0 |
Loss of two phalanges or joints of right middle or ring fingers.......................................................... | 137 | 10 | 0 |
Loss or two phalanges or joints of left middle or ring fingers............................................................ | 125 | 0 | 0 |
Loss of two phalanges or joints of right little finger........................................................................... | 125 | 0 | 0 |
Loss of two phalanges or joints of left little finger............................................................................. | 112 | 10 | 0 |
Loss of distal phalanx or joint of right forefinger............................................................................... | 125 | 0 | 0 |
Loss of distal phalanx or joint of left forefinger................................................................................. | 112 | 10 | 0 |
Loss of distal phalanx or joint of other finger of right hand............................................................... | 100 | 0 | 0 |
Loss of distal phalanx or joint of other finger of left hand.................................................................. | 90 | 0 | 0 |
Loss of hand and foot.......................................................................................................................... | 1,250 | 0 | 0 |
Loss of both feet.................................................................................................................................. | 1,250 | 0 | 0 |
Loss of leg above knee........................................................................................................................ | 937 | 10 | 0 |
Loss of leg below knee........................................................................................................................ | 812 | 10 | 0 |
Loss of foot.......................................................................................................................................... | 750 | 0 | 0 |
Loss of great toe.................................................................................................................................. | 250 | 0 | 0 |
Loss of any other toe........................................................................................................................... | 100 | 0 | 0 |
Loss of two phalanges or joints of any other toe................................................................................. | 80 | 0 | 0 |
Loss of phalanx or joint of great toe.................................................................................................... | 125 | 0 | 0 |
Loss of phalanx or joint of any other toe............................................................................................. | 75 | 0 | 0 |
(2.) Where before the date of commencement of this Act an employee sustained an injury or contracted a disease in respect of which weekly payments in accordance with the First Schedule to the Principal Act would have been payable at that date if he had been incapacitated for work at that date, and he is not, at that date, so incapacitated, but after that date be becomes incapacitated for work as a result of the injury or disease, weekly payments in respect of that incapacity shall be in accordance with the provisions of the Principal Act, as amended by this Act.
(3.) Where, after the date of commencement of this Act, death results from an injury or a disease which was sustained or contracted before that date and in respect of which compensation was payable under the Principal Act, compensation shall be paid in respect of that death in accordance with the provisions of the Principal Act, as amended by this Act.
0
0
0