WorkCover underpayment of wages – all you need to know
There are a number of different times where you may feel that you are under paid by WorkCover. This article will examine why you might be underpaid by WorkCover and what the solutions are to the issue.
- You might be being paid at the correct rate but you are unaware that you will only be paid at 90% the 85% of your pre-injury earnings.
- Your pre-injury earnings might be less than you anticipated because they have taken into account a change in circumstances that reduced your pre-injury earnings.
- Your employer might not be passing on your weekly payments to you, retaining some or all of the payments in their own accounts.
- There may have been an error on the original claim for compensation that means the insurer did not have enough information to properly assess your pre-injury earnings.
- The WorkCover insurer may have made an error in your payments, or paid two smaller amounts due to when your weekly payments were due.
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WorkCover weekly payment rates
For starters, WorkCover weekly payments are not paid at 100% of your pre-injury earnings. You can read more about this here.
This means that you will in a sense be “underpaid” compared to what you were receiving pre-injury. Payments commence at 95% of your pre-injury earnings then reduce to 80% after that.
This does exclude those instances where you may have an entitlement to “make-up pay” through an Enterprise Bargaining Agreement, Award or other employment arrangement.
Overtime and shift allowance are only included in the PIAWE calculation for the first 52 weeks of payments. After that time, your PIAWE calculation will drop, so will your payments.
A complicated area when it comes to PIAWE, WorkCover notes as follows:
Secondly, you may appear to be underpaid because of the way pre-injury average weekly earnings are calculated causes you to lose out.
This article explains things further. What you need to keep in mind is that WorkCover won’t pay full wages.
And calculating your pre-injury average weekly earnings can sometimes be complicated.
For example, if you worked for five years as a full-time employee and then three months before the injury reduced to part time hours for family reasons.
When it comes to assessing your pre-injury average weekly earnings, the insurer will be entitled to assess the part-time hours exclusively as those were the regular hours that you would be working on an ongoing basis into the future.
The fact that most of your service was done at a full-time workload does not factor into the pre-injury earnings assessment.
Employer not passing on payments
Another reason why you may find yourself being underpaid is if the employer is not passing on the appropriate amount of wages to you.
We have seen instances where an employer retains some or all of the weekly payment that is due to the worker.
This is sometimes due to a misunderstanding of tax rates or what exact amount is to be paid to the worker.
To read more about weekly payments and tax, you can visit this page.
If you are having difficulties in obtaining your weekly payments through your employer, you should contact either your lawyer or if you have no lawyer, contact the WorkCover insurer.
Please note that it is the responsibility of the WorkCover insurer to ensure that you are paid your correct weekly payments.
It is not up to you to chase up your employer on a regular basis or institute proceedings against your employer for payment of weekly payments that they have withheld.
It is also important to note that the employer cannot “set off” your weekly payments against some other debt that they say is payable to them.
For example, if they had provided you with a loan which you were paying back, they are prohibited at law from deducting any amount owed on the loan from your weekly payments.
They are of course entitled to ask you to repay out of your own funds any amount owing but they must not deducted prior to paying your weekly payments to you.
Errors in the claim form
You may have worked two jobs at the time of becoming injured.
You may not have completed the work of a claim form yourself or may have misunderstood what the WorkCover claim form was asking you and not included the earnings made in your second job.
If those earnings were made within the 12 months before your injury and the employment was to be ongoing, then the earnings from the second job (where the injury did not occur) should be factored into your pre-injury average weekly earnings.
Your Workcover insurer may of course have made an error in either assessing your PIAWE or in paying your PIAWE. For example, they may have miscalculated when assessing your PIAWE, resulting in a lesser amount being paid to you as should have been.
Occasionally workers find themselves receiving multiple smaller payments from the insurer/employer while on WorkCover.
Supposedly this is due to the certificate of capacity going over multiple employer pay runs, which means they process the payment in more than one transaction.
There are multiple different reasons as to why you have been getting underpaid. Firstly you should check to make sure that you are happy with the PIAWE assessment made by the insurer. If you are, then check whether you are receiving the correct 95% or 80% rate.
If you still think you are underpaid after doing those things, you’ll need to investigate whether the employer is retaining some or all of your payments and whether the insurer is giving them the correct amount. You can always ask for a printout of payments made by the insurer so you know exactly where you stand.