Applies to: Higher Education Academic Staff
Approved by: Certified Agreement Provisions 2000
54. LEAVE OR MAKE-UP PAY TO INCAPACITATED EMPLOYEES
54.1 Entitlement to Make-Up Pay Total Incapacity
An employee who suffers injury causing total incapacity for work and
who receives compensation in respect of such total incapacity, as
prescribed by the applicable State legislation, shall be granted
leave by the institution at a rate of pay equal to the difference
between the rate of pay payable if the employee had continued to
perform the duties being performed immediately preceding the
occurrence of the injury excluding any payment for overtime or
travelling allowance or incidental expenses or any payment of a
temporary character in the nature of a reimbursement of expenditure
incurred and the amount of weekly compensation received by the
employee.
54.2 Partial Incapacity
54.2.1(i) Partial Incapacity Entitlement to Make-Up Pay
An employee who suffers injury causing partial incapacity for work and
who receives compensation in respect of such partial incapacity as
prescribed by the applicable legislation shall be paid make-up pay by
the University.
54.2.1(ii) Partial Incapacity Rate of Make-Up Pay
The rate of make up pay under sub-clause 54.2.1(i) shall be equal to
the difference between the rate of pay payable if the employee had
continued to perform the duties being performed immediately preceding
the occurrence of the injury excluding any payment for overtime or
travelling allowance or incidental expenses or any payment of a
temporary character in the nature of a reimbursement of expenditure
incurred and the sum of the amount of weekly compensation received by
the employee and the weekly amount the employee is earning in the
employment in which the employee is employed by reason of such
partial incapacity.
54.2.2 Partial Incapacity - Make-up Pay where Suitable Employment
found with another Employer
54.2.2(i) An employee who is partly incapacitated and who cannot
obtain suitable employment with the University but who has obtained
suitable employment with another employer shall continue to be paid
make-up pay by the University at the rate prescribed in sub-clause
54.2.1
54.2.2(ii) Make-up pay required by sub-clause 54.2.2(i) will
continue to be paid provided that the employee furnishes evidence to
the satisfaction of the University of the rate of weekly compensation
and the rate of actual earnings the employee is receiving from the
other employer.
54.3 ACCIDENT MAKE-UP PAY - Period Of Leave And Make-Up Pay
54.3.1 Maximum Period Of Make-Up Pay-Total Incapacity
Leave granted pursuant to sub-clause 54.1 shall not exceed a continuous
period of 52 weeks or an aggregate period of 52 weeks in respect of
any one injury.
54.3.2 Maximum Period Of Make-Up Pay-Partial Incapacity
The period for which make-up pay shall be payable pursuant to sub-
clause 54.2 shall not exceed a continuous period of 52 weeks or an
aggregate period of 52 weeks in respect of any one injury.
54.3 ACCIDENT MAKE-UP PAY - Period Of Leave And Make-Up Pay
Where Graduated Return To Work (Academic Employees Only)
Where an employee attempts a graduated return to work, that fraction of
the week that the employee is performing duties will not be counted
in the aggregate period of incapacitation leave provided for in 54.1.
54.4 ACCIDENT MAKE-UP PAY -Repayment Of Make-Up - Pay if Damages
Received
54.4.1 An employee receiving or who has received make-up pay
shall advise the University in writing of any civil claim for damages
instituted by the employee in connection with the injury to which
such make-up pay relates. The employee shall, if required by the the
University, authorise the University to obtain from the solicitors of
the employee such information as is reasonably required by the
University as to the progress of such claim.
54.4.2 Where an employee who has received make-up pay recovers
damages against the University pursuant either to a judgement or
settlement in respect of the injury for which the employee has
received make-up pay the employee shall repay to Swinburne University
such make-up pay as the employee has received from Swinburne
University, provided that the damages so recovered include damages
for loss of income for which such make-up pay has been paid.
54.4.3 Where an employee who has received make-up pay recovers
damages against a person other than the University pursuant either to
a judgement or settlement in respect of the injury for which the
employee has received make-up pay the employee shall repay to the
University such make-up pay as the employee has received from the
institution provided that the damages so recovered include damages
for loss of income for which such make-up pay has been paid.
54.4.4 Where an employee who has received make-up pay recovers
damages against either the University or a person other than the
University pursuant to a judgement in respect of an injury for which
the employee has received make-up pay and where pursuant to such
judgement the amount of damages recovered has been reduced for the
contributory negligence of the employee, the employee shall repay to
the institution such amount of make-up pay as the employee has
received from the University as is pro rata to the damages recovered
having regard to such contributory negligence.
54.5 Accident Make-Up Pay -Use Of Sick Leave For Incapacitated
Employees
54.5.1 Employee can Utilise Sick Leave whilst
Incapacitated
An employee who is an applicant for leave pursuant to 54.1 may upon
application be granted sick leave to cover such absence but not
exceeding paid sick leave standing to the credit of the employee
provided however that no employee shall be concurrently entitled to
sick leave and leave pursuant to 54.1.
54.5.2 Rate of Sick Leave Applicable whilst
Incapacitated
Sick leave granted pursuant to sub-clause 54.5.1 shall be at a weekly
rate not exceeding the sum of the following:
54.5.2.(i) the weekly value of the workers compensation payment
to which the employee may become entitled;
54.5.2(ii) the weekly payment for which the employee will be
eligible if granted leave pursuant to sub-clause 54.1.
54.5.3 Re-Crediting of Sick Leave
If an employee is granted sick leave as provided in this clause and is
subsequently granted leave for the same period or part thereof
pursuant to sub-clause 54.1 on account of the same injury there shall
thereupon be restored to the credit of the employee sick leave equal
to the value of the sick leave taken pursuant to this clause.
54.6 Accident Make-Up Pay - Employment Upon Return To Duty
54.6.1 Return to Full Duty Total Incapacity
An employee having been totally incapacitated shall be entitled upon
returning to full duty at the University to occupy an office
equivalent to that occupied by the employee immediately prior to the
granting of leave pursuant to sub-clause 54.1.
54.6.2 Return to Full Duty Partial Incapacity
An employee having been partly incapacitated shall be entitled upon
returning to full duty at the University to occupy an office
equivalent to that occupied by the employee immediately prior to the
occurrence of the injury which led to the partial incapacity.
