Who is responsible to pay workers their income maintenance?
Published: 13 September 2011
The answer to this question is straightforward. If a worker is employed by a self-insured employer, the employer has to pay a worker their income maintenance if they have time off due to a compensable disability. In all other cases not involving a self-insured employer, WorkCoverSA is responsible for making the payments. However, the worker’s employer is required to cover the first 2 weeks off unless they are eligible for a waiver. If the employer fails to make the payment for the first 2 weeks off work, WorkCoverSA is required by section 48(1) of the Workers Rehabilitation and Compensation Act 1986, to make the payments instead and then recover the amount from the employer as a debt.
There can be a number of reasons why an employer may not pay the first 2 weeks of income maintenance even though the claim has been accepted for an incapacity for work. Sometimes a worker has more than one employer at the time of the injury and there may be disagreement between the employers as to who is responsible for the claim. The employer may simply be disorganised or they may be trying to avoid their obligation to pay. Perhaps the employer disputes that the worker is still employed with them.
If for any reason an employer fails to pay the first 2 weeks of income maintenance within a week of the claim being accepted, the worker should report this to their case manager at Employers Mutual. If it looks like the employer is disputing their obligation to make the payments, then the worker can insist that WorkCoverSA make the payments instead. This will involve the worker completing a Tax File Number (TFN) declaration form which will authorise WorkCoverSA to deduct income tax from the payments and the worker completing a bank account details form for the payments to be deposited electronically into the worker’s bank account. It can take a week or more for WorkCoverSA to take over the payment of income maintenance from the employer.
Although, section 46(1) of the Act makes it clear that WorkCoverSA is liable for compensation that is payable under the Act, Employers Mutual usually requests the employer to continue paying the worker their income maintenance beyond the first 2 weeks off and arranges for WorkCoverSA to reimburse the employer while the worker remains incapacitated for work. This helps to maintain the continuity of payments to the worker and avoids WorkCoverSA having to obtain a TFN declaration form from the worker. However, this is an arrangement that is voluntary on the part of the employer because, legally, WorkCoverSA bears the liability for payments of income maintenance after the first 2 weeks off.
If the worker finds that the employer is not making the payments on time or is refusing to make them at all, the worker should report this to their case manager and it is the case manager’s responsibility to either sort out the problem with the employer or organise for WorkCoverSA to take over the payment of income maintenance direct to the worker.
If a worker has spoken with their case manager about the problem and is concerned about the time it is taking for WorkCoverSA to commence income maintenance payments in place of their employer, they should contact Employers Mutual’s Service Delivery Unit and, if the delay continues, they may call WorkCoverSA’s Service Improvement Unit on 13 18 55. My office may also be contacted if the worker is dissatisfied with the response.