When you are injured at work you are eligible to seek compensation payments from WorkCover. WorkCover operates to provide you with income while you are unable to work for a period longer than your sick leave permits. WorkCover also operates to help with recovery and rehabilitation from your injury.
WorkCover takes the form of insurance and is paid to you weekly, fortnightly, or monthly, making up a percentage of your usual paycheck. WorkCover provides you with security and peace of mind, knowing that you will still be getting paid as you recover from your injury. While you get your usual wage, in most cases, superannuation is not paid as part of your WorkCover payments. However, in some situations, super is paid to workers who are receiving WorkCover. This article explores whether a work injury claim includes lost superannuation.
When receiving payments for WorkCover you are paid either:
When superannuation is paid it is calculated on your wage and earnings. Because WorkCover is not earnings per se, some employers are not obliged to pay your super.
Superannuation is generally not payable when a worker is on WorkCover but there are some exceptions. A ruling was made by the Australian Tax Office (ATO) about superannuation (SGR 2009/2) on 13 Mays 2009 which changed the way in which the legislation around superannuation and ‘ordinary time earnings’ (the basis on which superannuation) is interpreted.
Modern Award payments can also allow superannuation payments when a person is off work due to an injury. This is due to the Fair Work Act 2009, and while every Modern Award has a slightly different clause in relation to superannuation, the majority of the modern awards in Queensland and Australia state that an employer must contribute to a worker’s superannuation even when a worker is absent due to a work-related injury or illness.
If your award states that your employer must continue to make superannuation payments then you will continue to receive payments as per usual every three months. For example, construction workers are covered under the Building and Construction General On-site Award 2010 [MA000020]. Under this award, superannuation needs to be paid by an employer during a period of leave when an employee cannot work due to a workers compensation claim so long as the employee:
For each workers compensation claim, superannuation must be paid for no more than 52 weeks. The weeks don't have to be consecutive.
Not sure if you should be receiving superannuation payments? You can check what type of award you may be covered by using this tool from the Australian Government online.
In some cases, when a person is injured they are unable to perform their usual duties. But, they may be able to perform another task or type of work while they are recovering. If an employee attends work while they are on WorkCover, any compensation payments during this time are considered salary payments, and superannuation must be paid on these amounts.
As is stated in the tax ruling SGR 2009/2, any workers’ compensation payments which are received by an injured employee for the hours the employee performs work or attends work as required form part of ‘salary or wages’. If an employee does not work any hours but is paid WorkCover they cannot be paid super on this amount.
If you have been injured at work you may be able to make a claim for compensation for damage and injuries. If your injuries are considered permanent injuries, you can make a lump sum claim for future loss of earnings. This lump sum amount will include superannuation in any calculations, and your total losses will be calculated with a projected amount of superannuation that you would have earned in your role included in your lump sum payment
It’s important to get advice for your specific situation. Check if you can make a risk-free compensation claim and get free initial advice from our Principal lawyer, Greg Smith.
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