Accident Compensation Act 2001

Shareholder-employee

39 Weekly earnings if claimant had earnings as shareholder-employee immediately before incapacity commenced

(1)

The weekly earnings of a claimant who had earnings as a shareholder-employee immediately before his or her incapacity commenced are the higher of—

(a)

the relevant amount calculated under clause 34 or clause 36, whichever is applicable; and

(b)

the relevant amount calculated under subclause (2).

(2)

The amounts to be calculated under this subclause are,—

(a)

for claimants who first commenced receiving earnings as a shareholder-employee in the tax year in which the incapacity commenced, the amount calculated using the following formula:

a ÷ b

where—

a

is the total of the claimant’s earnings as an employee in the 52 weeks immediately before the incapacity commenced

b

is the number of full or part weeks during which the claimant earned those earnings as an employee:

(b)

for claimants for whom the relevant year was the first year during which they received earnings as a shareholder-employee, the amount calculated using the following formula:

(a + b) ÷ c

where—

a

is the claimant’s total earnings as an employee in the 52 weeks immediately before his or her incapacity commenced

b

is the claimant’s earnings as a shareholder-employee in the relevant year

c

is the combined number of full or part weeks during which the claimant earned those earnings as an employee and the number of weeks that the Corporation considers fairly and reasonably represents the number of weeks or part weeks during which the claimant earned those earnings as a shareholder-employee in the relevant year, up to a combined maximum of 52 weeks or the total number of weeks in the claimant’s relevant year if the relevant year is more than 52 weeks:

(c)

for all other claimants, the amount calculated using the following formula:

a ÷ c + b ÷ d

where—

a

is the claimant’s total earnings as an employee in the 52 weeks immediately before his or her incapacity commenced

b

is the claimant’s earnings as a shareholder-employee in the relevant year

c

is 52 or such smaller number, if an adjustment is required under subclause (2A)

d

is the number of weeks in the relevant year or such smaller number, if an adjustment is required under subclause (2A).

(2A)

The numbers referred to in items c and d of the formula in subclause (2)(c) must be adjusted by deducting any period during which the claimant was within a payment period under the Compensation for Live Organ Donors Act 2016.

(3)

A claimant is eligible for the greater of—

(a)

the amount calculated under subclause (2) with the inclusion of earnings as an employee in the calculation; and

(b)

the amount calculated under subclause (2) with the exclusion of earnings as an employee from the calculation.

(4)

If the claimant’s weekly earnings are calculated under subclause (2) with the inclusion of their earnings as an employee, the claimant is not also eligible to have his or her weekly earnings calculated under clauses 33 to 36.

(5)

If a claimant’s weekly earnings as a shareholder employee are calculated under subclause (2), the same earnings cannot be used as earnings as an employee for the purposes of clauses 33 to 36.

(6)

This clause applies to claims for weekly compensation made on or after 1 July 2005, whether made in respect of a period of incapacity that started before the day on which this clause comes into force or that starts on or after that day.

(7)

To avoid doubt, if a claim for weekly compensation is made in respect of a period of incapacity that commenced before 1 July 2005, this clause—

(a)

applies only to the calculation of weekly earnings for the purposes of weekly compensation that is payable for a period commencing on or after 1 July 2005; and

(b)

does not authorise an increase to the rate of weekly compensation that is payable for a period before 1 July 2005.

Schedule 1 clause 39: substituted, on 1 July 2005, by section 60(1) of the Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2005 (2005 No 45).

Schedule 1 clause 39(1)(a): amended, on 1 July 2010, by section 47(1) of the Accident Compensation Amendment Act 2010 (2010 No 1).

Schedule 1 clause 39(2)(c) formula item c: amended, on 5 December 2017, by section 30 of the Compensation for Live Organ Donors Act 2016 (2016 No 96).

Schedule 1 clause 39(2)(c) formula item d: amended, on 5 December 2017, by section 30 of the Compensation for Live Organ Donors Act 2016 (2016 No 96).

Schedule 1 clause 39(2A): inserted, on 5 December 2017, by section 30 of the Compensation for Live Organ Donors Act 2016 (2016 No 96).

Schedule 1 clause 39(4): amended, on 1 July 2010, by section 47(1) of the Accident Compensation Amendment Act 2010 (2010 No 1).

Schedule 1 clause 39(5): amended, on 1 July 2010, by section 47(1) of the Accident Compensation Amendment Act 2010 (2010 No 1).

Schedule 1 clause 39(7): added, on 1 August 2008, by section 33(1) of the Injury Prevention, Rehabilitation, and Compensation Amendment Act 2008 (2008 No 46).