Decision to Cut Accident Pay for Coal Miners Upheld

In October last year, we reported on the decision of the Fair Work Commission to cut coal miners Accident Pay entitlement from 78 weeks to 52 weeks. Our initial blog post can be found here:-

The decision was challenged by key Union groups including the Collieries Staff & Officials Association and the CFMEU in the Federal Court in May of this year.

The Federal Court handed down their decision yesterday, 27 June 2019.  The Court determined to uphold the initial decision.

The decision will affect any worker injured after 1 November 2018.

Workers covered by the Award will only be entitled to 52 weeks of Accident Pay. For workers currently covered under an Enterprise Agreement, they will not be immediately affected by the variation of the Accident Pay clause. However as existing Enterprise Agreements come up for re-negotiation, we anticipate there will be considerable bargaining with respect of the Accident Pay entitlement.  

A few observations to make:-

·         Pursuant to Section 248 of the Workers Compensation Act 1987 (NSW), an employer of an injured worker is guilty of an office if they dismiss the worker during a period in which the worker is entitled to Accident Pay. The decision will result in employers being able to legally terminate an injured coal miners’ employment 6 months earlier.

·         The reduction in the Accident Pay period will significantly shorten a workers time to recover and return to their pre-injury state. If an injured worker requires surgery, it can be at least 6 to 12 months before the worker is cleared to return to full pre-injury duties. Further, it is often the case that many employers in the industry will not accept a worker back on site until they can show that they are fully fit for pre-injury duties and pass a full functional medical.

·         Most existing Accident Pay clauses allow for the worker to be paid their full rate for the first 39 weeks and thereafter they drop down to their classification rate for the remaining 39 weeks. The decision will mean that the first 39 weeks will be paid at the same rate and then classification rate from week 40 to 52 thus losing 26 weeks of classification rate pay.

It is more important than ever for workers injured in the coal mining industry to understand their entitlements. If you wish to learn more, our team are here to help.