Safety Matters - Rail, Tram and Bus Union of NSW

No Suitable Duties
If no suitable duties are available then Sec 38 benefits apply.
Sec 38 is a section which has been amended a number of times since its
introduction in 1987. Sec. 38 benefits are available for up to 52 weeks
(amended from 104 weeks in 1998).
• For any period these benefits are to be paid which falls within the first 26
weeks of incapacity (which usually includes period/s of total incapacity) the
rate is the cwwr.
• After the 26 weeks of incapacity point, the worker receives 80% of the cwwr
for the remainder of the 52 week period.
SECTION THREE
Safety Matters A Guide for Workplace OHS Representatives
To be entitled to Sec 38 benefits the worker would often be required by the
insurer to actively search for employment even if the pre-injury employer
has indicated that they will keep the worker on. Workers who are unable to
return to their pre-injury employer are entitled to receive these benefits whilst
undergoing rehabilitation/retraining as well as when they are job seeking.
PARTIAL
TOTAL
On Suitable Duties
(S40)
No Suitable Duties
Available (S38) – up
to 52 weeks
CWWR (S36) Note: Earnings + make-up CWWR
the 26 weeks of total pay to AWE
First 26
weeks
incapacity is cumulative
– periods of partial
incapacity or no
incapacity do not apply
Statutory Payts (S37) Earnings + make-up 80% CWWR
After 26
weeks
of statutory rate – the
max payable is AWE
A Summary of Workers Compensation in NSW
20
RAIL
TRAM AND BUS
U N
I O N