Home » Loss of Pay While on Workers' Compensation Deemed Unfair

The Queensland Industrial Relations Commission has used its power to amend unfair contracts to grant an employee the difference between the amount received while on workers' compensation benefits and his usual remuneration package.

Background

Mr Gersten, a lawyer, applied under section 276 of the Industrial Relations Act 1999 (Qld) to have his contract amended on various grounds of unfairness, including that:

• the contract did not provide for reimbursement of legal costs for pursuing employment issues; and


• the contract did not require the employer to pay the difference between workers' compensation payments and the remuneration he ordinarily received while at work.[1]

Consideration of unfairness

The Commission accepted Mr Gersten's application in relation to legal costs, but only for his attendance at conciliation conferences that could have been avoided if the employer had made appropriate concessions sooner. The Commission awarded Mr Gersten $10,000 for legal costs on the basis that the contract operated unfairly in light of the employer's conduct.

Significantly, the Commission also accepted Mr Gersten's claim that the contract operated unfairly because it did not contain a term requiring the employer to pay the difference between the workers' compensation payments he received, and his usual remuneration. The Commission came to this conclusion on the basis that Mr Gersten's absence on workers' compensation resulted directly from him being abused and assaulted by his supervisor, who did not give evidence in the proceedings. The Commission considered it unfair that Mr Gersten should be substantially out-of-pocket as a consequence of the supervisor's conduct, and awarded him an additional $12,000.

Case limited to its own facts?

Workers' compensation entitlements in Queensland are usually payable at the rate of 85 per cent of normal weekly earnings. The entitlement is also subject to exclusions that mean that employees do not receive remuneration while absent from work on workers' compensation benefits.

The Commission's decision leaves open the prospect that other employees who proceed on workers' compensation as a consequence of treatment by a supervisor might also claim the difference between statutory compensation and usual remuneration. Given the number of absences on workers' compensation attributed to the alleged conduct of managers and supervisors, the number of potential claimants could be substantial.

[1] Joseph M. Gersten v Cape York Land Council Aboriginal Corporation (No. B2041 of 2003), Commissioner Fisher, 22 December 2004.