Pursuant to s 116 of the Safety Rehabilitation and Compensation Act, a worker is entitled to accrue sick leave and annual leave but only during the first 45 weeks of absence following acceptance of liability for a work related injury. Thereafter, if an injured worker is unable to work, only long service leave accrues under the SRCA.
Similarly an employer is only required to make superannuation contributions when an employee is physically working. Recently Telstra has written to a number of workers advising that it has continued to allow injured workers to accrue sick leave and annual leave entitlements beyond the first 45 weeks and that it is now correcting its records and clawing back any entitlements accrued in error. Despite the fact that these errors were not the fault of employees, Telstra has the right under the Act to recover any compensation benefits paid in error.
Recovery of accrued entitlements is covered by the Fair Work Act 2009 which provides that an employer cannot seek to recover alleged overpayments by simply deducting these from a worker’s pay. Instead, the worker and employer should discuss and agree on a repayment arrangement. If the employee agrees to repay the money, a written agreement has to be made and has to set out:
- the reason for the overpayment
- the amount of money overpaid
- the way repayments will be made (eg. cash, cheque or electronic transfer) and how often (this has to be reasonable).
Alternatively a deduction can be made to get back an overpayment if this is allowed under a registered agreement, award, legislation or court order.
Telstra has also notified all injured workers with current claims that cost of medication will only be covered at the rate provided by the Pharmaceutical Benefits Scheme (PBS) and that claimants should provide their Medicare or health benefits card to the dispensing chemist.
However, injured workers should be aware that the Safety Rehabilitation and Compensation Act provides that Telstra must pay medical expenses, including the cost of medication, which are “reasonable”. Accordingly, if medication is either not covered by the PBS and/or workers are charged at higher than PBS rates, Telstra can still be required to reimburse the full cost to the worker rather than a reduced PBS or nor PBS rate.
[Angela Sdrinis Legal]