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WORKPLACE INJURY REHABILITATION AND COMPENSATION ACT 2013 - SCHEDULE 1

Schedule 1—Further interpretative provisions

PART 1—PERSONS DEEMED TO BE WORKERS OR EMPLOYERS

Section 4(3)

        1     Students etc. deemed to be workers and their deemed employers

    (1)     Each of the following is deemed to be a worker to the extent specified—

        (a)     a student at a school within the meaning of Division 1 of Part 5.4 of the Education and Training Reform Act 2006 while employed under a work experience arrangement or a structured workplace learning arrangement under that Part;

        (b)     a student who is in an accredited senior secondary course (within the meaning of section 4.1.1 of the Education and Training Reform Act 2006 )—

Sch. 1 cl. 1(1)(b)(i) amended by No. 7/2015 s. 15.

              (i)     at a TAFE institute or a dual sector university; or

              (ii)     provided by a person or body registered under section 4.3.10 of that Act with respect to that course—

while employed under a work experience arrangement or a structured workplace learning arrangement under Part 5.4 of that Act;

        (c)     a student employed under an agreement or arrangement referred to in section 6.1.21 of the Education and Training Reform Act 2006 , while so employed;

        (d)     a post-secondary student of a TAFE provider within the meaning of Division 2 of Part 5.4 of the Education and Training Reform Act 2006 while employed under a practical placement agreement under that Part;

        (e)         a student employed under an agreement or arrangement referred to in section 6.1.23, 6.1.24 or 6.1.25 of the Education and Training Reform Act 2006 , while so employed;

        (f)     an apprentice—

              (i)     within the meaning of the Education and Training Reform Act 2006 while employed under an approved training scheme within the meaning of Part 5.5 of that Act; or

              (ii)     employed under a contract of apprenticeship, while so employed;

        (g)     a person who is a participant in a declared training program, while so participating.

    (2)     In relation to—

        (a)     a student who is deemed to be a worker under subclause (1)(a), (b), (c), (d) or (e)—

Sch. 1 cl. 1(2)(a)(i) amended by No. 10/2022 s. 85.

              (i)     the Department of Education and Training is deemed to be the employer of that student in respect of the employment under the arrangement or agreement; and

              (ii)     the amount paid or payable to the student for services rendered under the agreement or arrangement is deemed to be remuneration;

        (b)     an apprentice referred to in subclause (1)(f)—

              (i)     the person who enters into the approved training scheme or contract of apprenticeship with the apprentice is deemed to be the employer of the apprentice; and

              (ii)     the amount paid or payable to the apprentice under the approved training scheme or contract of apprenticeship is deemed to be remuneration;

        (c)     a person referred to in subclause (1)(g), the provider of the declared training program is deemed to be the employer of that person.

        2     Declared training programs

    (1)     The Governor in Council may, by Order in Council published in the Government Gazette, declare a training program provided by a person or body specified in the Order in Council that includes the provision of workplace based training to be a declared training program.

    (2)     The Governor in Council may, by Order in Council published in the Government Gazette, specify, in relation to a declared training program—

        (a)     a class of payments; or

        (b)     a training allowance—

payable to participants in that declared training program.

    (3)     A payment of a class or a training allowance, specified in an Order in Council under subclause (2) is deemed to be remuneration paid or payable in respect of a participant in the training program to which that Order in Council applies.

        3     Persons attending certain employment programs deemed to be workers

If a person (not being a worker within the meaning of any other provision of this Part) is injured while attending an employment program provided or arranged by the Authority—

        (a)     for the purposes of this Act—

              (i)     the person is deemed to be a worker; and

              (ii)     the Authority is deemed to be the employer of the person; and

        (b)     for the purposes of Divisions 1 and 2 of Part 5, the person's pre-injury average weekly earnings are deemed to be the pre-injury average weekly earnings of the person as calculated for the purposes of this Act in relation to the injury suffered by that person by reason of which the person is attending the employment program as indexed in accordance with this Act.

        4     Co-operatives—deemed workers and employers

    (1)     A person—

Sch. 1 cl. 4(1)(a) amended by No. 44/2014 s. 25.

        (a)     who is a secretary of a co-operative housing society within the meaning of the Co‑operative Housing Societies Act 1958 or a co-operative within the meaning of the Co-operatives National Law (Victoria); and

        (b)     who is entitled, as secretary, to be paid more than $400 per annum (other than in respect of expenses)—

is deemed to be a worker.

    (2)     The co-operative, or co-operative society, is deemed to be the employer of that person.

    (3)     The amount (other than in respect of expenses) paid or payable to that person by the employer is deemed to be remuneration.

        5     Door to door sellers

If—

        (a)     a person (the seller ) is engaged under a contract or arrangement (not being a contract of employment with an employer)—

              (i)     to sell goods door to door; or

              (ii)     to party plan on-sell goods; or

              (iii)     to sell services ancillary to a sale or on‑sale of goods referred to in subparagraph (i) or (ii); and

        (b)     the Authority determines that the contract or arrangement was entered into with an intention of directly or indirectly avoiding or evading the payment of premium by any person—

then—

        (c)     the seller is deemed to be a worker; and

        (d)     the person who engaged the seller is deemed to be the employer of the seller; and

        (e)     the amount paid or payable to the seller by the person who engaged the seller is deemed to be remuneration.

        6     Timber contractors

    (1)     If a person who, in the course of, or for the purposes of, a trade or business carried on by the person ( principal ), enters into a timber contract with one or more individuals ("timber contractor")—

        (a)     each timber contractor is deemed to be a worker; and

        (b)     the principal is deemed to be the employer of each timber contractor.

    (2)     Subclause (1) does not apply if—

        (a)     the timber contractor—

              (i)     subcontracts the timber contract in its entirety; or

              (ii)     does not perform personally any work under the contract and employs or engages persons to perform all the work under the timber contract; or

        (b)     where the timber contractor is a partnership of 2 or more individuals, no part of the work under the timber contract is performed personally by a member of the partnership.

    (3)     In relation to a timber contractor who is deemed to be a worker, the amount payable by the principal to the timber contractor, less the applicable prescribed percentage (if any), is deemed to be remuneration.

    (4)     In this clause, "timber contract" means a contract under which one or more individuals agree with another person ( principal ) to do all or any of the following—

        (a)     fell trees and deliver the timber to the principal;

        (b)     cut firewood and deliver the firewood to the principal;

        (c)     fell trees or cut scrub on land of which the principal is the occupier;

        (d)     clear stumps or logs from land of which the principal is the occupier;

        (e)     remove stumps or logs from land, whether by loading them onto a vehicle or otherwise.

        7     Drivers carrying passengers for reward

    (1)     A person engaged in driving a motor vehicle is deemed to be a worker if the person ("driver")—

        (a)     has the use of a motor vehicle under a contract of bailment entered into with another person (the operator ) (other than a bona fide contract for the purchase of the vehicle); and

        (b)     uses the motor vehicle to carry passengers for reward; and

        (c)     is required under the contract to make payments to the operator for the use of the motor vehicle.

Sch. 1 cl. 7(2) amended by No. 63/2017 s. 21(Sch.  1 item 12).

    (2)         A reference in subclause (1) to a contract of bailment includes a reference to a driver agreement within the meaning of Division 1 of Part 6 of the Commercial Passenger Vehicle Industry Act 2017 .

    (3)     If, under subclause (1), a driver is a worker—

        (a)     the operator is deemed to be the employer of the driver; and

        (b)     the amount received by the driver for carrying passengers, less the amount paid or payable to the operator for the use of the motor vehicle, is deemed to be remuneration.

        8     Owner drivers carrying goods for reward

    (1)     Subject to this clause, an individual ( owner-driver ) is deemed to be a worker if, under a contract (not being a contract of employment) entered into by the individual with another person ( principal ), the owner-driver drives a motor vehicle, of which he or she is the owner, mainly for the purposes of providing transport services to the principal.

    (2)     This clause does not apply in respect of an individual who is an owner-driver if the Authority determines that, in providing transport services to the principal, the owner-driver is carrying on an independent trade or business.

    (3)     If, under subclause (1), an owner-driver is deemed to be a worker—

        (a)     the principal is deemed to be the employer of the owner-driver; and

        (b)     the amount paid or payable by the principal for transport services to the owner-driver, less the percentage deduction (if any) applicable to owner-drivers and specified in guidelines made by the Authority under subclause (4), is deemed to be remuneration.

    (4)     The Authority may make guidelines as to—

        (a)     the circumstances in which it may determine that an individual, in providing transport services to a principal, is carrying on an independent trade or business; and

        (b)     the determination of a percentage deduction for the purposes of subclause (3)(b).

    (5)     The Authority must ensure that guidelines made under subclause (4) are published and are generally available.

    (6)     In this clause—

"owner", in relation to a motor vehicle, has the same meaning as in the Road Safety Act 1986 ;

"transport services" means the service of transporting and delivering goods.

        9     Contractors

    (1)     This clause applies if—

        (a)     an entity (the principal ), in the course of, and for the purposes of, a trade or business carried on by the entity, enters into a contractual arrangement with another entity (the contractor ) for the provision by the contractor of services (not being transport services within the meaning of clause 8) to the principal for reward in respect of a relevant period; and

        (b)     the provision of the services by the contractor under the contractual arrangement is not ancillary to the provision of materials or equipment by the contractor to the principal under the contractual arrangement; and

        (c)     at least 80 per cent of those services are, or are to be, pursuant to the contractual arrangement, provided by the same individual ("the individual") being—

              (i)     the contractor; or

              (ii)     if the contractor is a partnership, an individual member of the partnership; or

              (iii)     if the contractor is a body corporate—a member, director, shareholder or employee of the body corporate; or

              (iv)     if the contractor is the trustee of a trust—a person who may benefit under that trust or is an employee of the trustee; and

        (d)     the gross income of the contractor that is, or is to be, derived from the provision of the services pursuant to the contractual arrangement is, or is to be, at least 80 per cent of the total gross income of the contractor earned from services of the same class provided by or on behalf of the contractor in the relevant period.

    (2)     This clause does not apply in respect of a contractual arrangement if the Authority determines that, in providing services to the principal, the contractor is carrying on an independent trade or business.

    (3)     The Authority may make guidelines as to the circumstances in which it may determine that a contractor, in providing services to a principal, is carrying on an independent trade or business.

    (4)     The Authority must ensure that guidelines made under subclause (3) are published and are generally available.

    (5)     If subclause (1) applies—

        (a)     the individual is deemed to be a worker in respect of the relevant period; and

        (b)     the principal is deemed to be the employer of the individual in respect of the relevant period; and

        (c)     the total amount paid or payable by the principal to the contractor under the contractual arrangement, less—

              (i)     the applicable prescribed percentage (if any); or

              (ii)     if there is no applicable prescribed percentage, the part of that total amount not attributable to the provision of labour—

is deemed to be remuneration.

    (6)     In this clause—

"principal" includes a group, or one or more members of a group, within the meaning of section 431;

Sch. 1 cl. 9(6) def. of relevant period amended by No. 10/2022 s. 86.

"relevant period", in relation to services provided under a contractual arrangement referred to in subclause (1), means—

        (a)     the financial year in which those services are, or are to be, provided; or

        (b)     if those services are, or are to be, provided in 2 or more consecutive financial years—

              (i)     the 12 month period beginning on the date on which those services are first provided pursuant to the contractual arrangement; or

              (ii)     the 12 month period ending on the date on which those services cease, or are to cease, to be provided;

"services" includes results (whether goods or services) of work performed.

        10     Remuneration and contractual arrangements

    (1)     If—

        (a)     a person (the principal ) enters into a contract with a body corporate (the  contractor ) under which the contractor agrees to provide services to the principal; and

        (b)     the contractor engages an individual to perform work for the purposes of the contract; and

        (c)     the individual engaged is deemed under clause 9 to be a worker employed by the principal—

the amount of remuneration is the total amount paid or payable by the principal to the contractor under the contract, less—

        (d)     the applicable prescribed percentage; or

        (e)     if there is no applicable prescribed percentage, the part of that total amount not attributable to the provision of labour.

    (2)     If subclause (1) applies, an amount paid or payable by a contractor within the meaning of subclause (1) to an individual engaged by the contractor to perform work for the principal within the meaning of subclause (1) is not remuneration.

        11     Claims to be made against principal

If an individual referred to in clause 9(1)(c)(iii) or (iv)—

        (a)     is deemed under clause 9(5) to be a worker employed by the principal; and

        (b)     makes a claim for compensation under this Act in relation to an injury arising out of, or in the course, of being so employed—

the claim must be made against the principal within the meaning of clause 9.

        12     Share farmers

    (1)     If, under a contract entered into between an owner of land and a share farmer—

        (a)     the share farmer is engaged by the owner and—

              (i)     is entitled to receive as consideration a share of the income (being less than one third of that income) derived from the land whether in cash or in kind or partly in cash and partly in kind; or

              (ii)     if the contract is in writing, the contract provides that the owner is liable to pay compensation under this Act in respect of any injury arising out of or in the course of any work carried out by the share farmer in the performance of the contract—

then—

        (b)     the share farmer is deemed to be a worker; and

        (c)     the owner is deemed to be the employer of the share farmer.

    (2)     If a share farmer is deemed to be a worker and an owner of land is deemed to be that share farmer's employer in respect of a particular contract, then only the cash paid or payable under the contract by the owner to the share farmer is deemed to be remuneration.

    (3)     A share farmer engaged by an owner of land is not a worker unless subclause (1) applies.

    (4)     A member of a share farmer's family who is employed by, or assists, the share farmer, whether for remuneration or otherwise, in the performance of the duties of the share farmer, whether pursuant to the contract between the share farmer and the owner of the land or otherwise, is not to be deemed to be a worker employed by the owner of the land by reason of the performance of such duties.

    (5)     In this clause—

"income", in relation to land, means the gross value of the production derived from the land;

"owner", in relation to land, includes a person in possession of, or entitled to the receipt of, the rents and profits from the land;

"primary production" means agriculture, pasturage, horticulture, viticulture, apiculture, poultry farming, dairy farming, cultivation of soils, gathering in of crops or rearing of livestock;

"share farmer" means an individual who, under a contract with the owner of land used substantially for primary production—

        (a)     is to perform work in relation to that land; and

        (b)     is to be remunerated in whole or in part by receiving a share of the income, whether in cash or in kind, derived from that land.

        13     Religious bodies and organisations

    (1)     If, by Order in Council published in the Government Gazette at the request of a religious body or organisation specified in the Order as having made the request, the Governor in Council declares that—

        (a)     persons within a class specified in the Order, who are not otherwise workers within the meaning of this Act, are workers of that body or organisation; and

        (b)     the employer of those persons is the person specified in the Order as the employer—

then—

        (c)     the persons referred to in paragraph (a) are deemed to be workers; and

        (d)     the person specified in paragraph (b) is deemed to be the employer of those workers.

    (2)     If an Order in Council is made under this clause in relation to a religious body or organisation, such amounts as are determined by agreement between the Authority and the religious body or organisation are deemed to be remuneration.

        14     Persons employed in the public sector

    (1)     This Act applies to a person who—

        (a)     is a responsible Minister of the Crown; or

        (b)     is a member of the Legislative Council or the Legislative Assembly; or

        (c)     holds an office as a member of a public entity or of the governing body of a public entity; or

        (d)     holds a judicial office; or

        (e)     is a non-judicial member of VCAT; or

        (f)     is a public official within the meaning of the Public Administration Act 2004 ; or

        (g)         is a bail justice; or

Sch. 1 cl. 14(1)(h) substituted by No. 37/2014 s. 10(Sch. item 188.3).

        (h)     is a member of Victoria Police personnel within the meaning of the Victoria Police Act 2013 .

    (2)     A person specified in subclause (1) is to be taken to be a worker.

    (3)     Amounts paid or payable to a person specified in subclause (1) in respect of their employment, office or duties are deemed to be remuneration.

    (4)     In this clause, public entity and public official have the same respective meanings as they have in the Public Administration Act 2004 .

        15     Municipal Councillors

    (1)     A Councillor, while carrying out duties as a Councillor, is deemed to be a worker.

    (2)     The Council of which the Councillor is a member, while the Councillor is carrying out duties as a Councillor, is deemed to be the employer of the Councillor.

Sch. 1 cl. 15(3) amended by No. 9/2020 s. 390(Sch.  1 item 113.4)

    (3)     Allowances fixed in a Determination of the Victorian Independent Remuneration Tribunal under the Victorian Independent Remuneration Tribunal and Improving Parliamentary Standards Act 2019 and paid or payable to the Councillor are deemed to be remuneration.

    (4)     The Minister may make guidelines in accordance with section 611 for the purposes of this clause specifying duties performed by a Councillor that may be taken to be, or not to be, duties as a Councillor for the purposes of this clause.

Sch. 1 cl. 15(5) amended by No. 9/2020 s. 390(Sch.  1 item 113.5)

    (5)     In this clause, Councillor and Council have the same respective meanings as they have in section 3(1) of the Local Government Act 2020 .

        16     Places of pick-up

Despite anything in this Act or any other law, if a person is ordinarily engaged in any employment in connection with which persons customarily attend certain pre-arranged places ( places of pick-up ) at which employers select and engage persons for employment—

        (a)     any such person is deemed, while in attendance at any such place of pick-up for the purpose of being so selected, to be working under a contract of employment with an employer; and

        (b)     the employer who last employed that person in customary employment is deemed to be that employer; and

        (c)     amounts paid or payable by the deemed employer to that person are deemed to be remuneration.

        17     Sporting contestants

    (1)     Except as provided in subclause (3), if a person is engaged by an employer to participate as a contestant in a sporting or athletic activity, neither the employer or self-insurer nor the Authority is liable to pay compensation for an injury received by the person if the injury is received while the person is—

        (a)     participating as a contestant in a sporting or athletic activity; or

        (b)     engaged in training or preparation with a view to so participating; or

        (c)     travelling between a place of residence and the place at which the person is so participating or so engaged.

    (2)     For the purposes of subclause (1), person does not include a person—

Sch. 1 cl. 17(2)(a) amended by No. 1/2018 s. 8(1).

        (a)     who is a jockey or an apprentice jockey who holds a licence granted in accordance with the Rules of Racing; or

        (b)     engaged to participate as a rider, not being a person referred to in paragraph (a), or a driver in a horse, pony or harness race at a race-meeting within the meaning of the Racing Act 1958 on a racecourse licensed under that Act or on lands otherwise authorised for the holding of race-meetings under Part I of that Act.

Sch. 1 cl. 17(3) amended by No. 1/2018 s. 8(4).

    (3)     A person—

Sch. 1 cl. 17(3)(a) amended by No. 1/2018 s. 8(2).

        (a)     engaged to participate as a rider in a horse race conducted as part of a race meeting, or official trial, held under the Rules of Racing; or

Sch. 1 cl. 17(3)(b) substituted by No. 1/2018 s. 8(3).

        (b)     who, not being the owner or trainer of the horse to be ridden, is a jockey or an apprentice jockey who holds a licence granted in accordance with the Rules of Racing and who agrees to do ride work for a trainer licensed under the Rules of Racing—

              (i)     at a location authorised for the holding of a horse race under the Racing Act 1958 ; or

              (ii)     at a training venue occupied by a club registered in accordance with the Rules of Racing; or

              (iii)     at a training venue occupied by a trainer licensed under the Rules of Racing; or

              (iv)     at a connecting route between any of the training venues referred to in subparagraphs (i) to (iii)—

is deemed while participating as such a rider or doing such riding work to be a worker solely employed by Racing Victoria and the amounts paid to the person, or to the person's nominee, in respect of so participating or doing (including any prize money) is deemed to be remuneration.

Sch. 1 cl. 17(4) substituted by No. 1/2018 s. 8(5).

    (4)     In this clause—

"Racing Victoria" has the same meaning as in the Racing Act 1958 ;

"Rules of Racing" has the same meaning as in the Racing Act 1958 .

        18     Riders and drivers in certain races

If a person is engaged to participate as—

        (a)     a rider in a horse race or pony race; or

        (b)     a driver in a harness race—

conducted as part of a mixed sports gathering within the meaning of the Racing Act 1958 held in accordance with section 19 of the Racing Act 1958

        (c)     the rider or driver is deemed, while so participating, to be a worker; and

        (d)     the club, association or body of persons holding the mixed sports gathering is deemed to be the employer of the rider or driver; and

        (e)     amounts paid or payable to the rider or driver for so participating are deemed to be remuneration.

        19     Outworkers

    (1)     A natural person who is an outworker within the meaning of the Outworkers (Improved Protection) Act 2003 is deemed to be a worker.

    (2)     A person (other than a family entity) who engages a natural person who is an outworker to perform outwork within the meaning of the Outworkers (Improved Protection) Act 2003 is deemed to be the employer of the outworker.

    (3)     If a person engages a family entity or a family business to perform outwork within the meaning of the Outworkers (Improved Protection) Act 2003

        (a)     each person engaged by the family entity or family business who performs outwork within the meaning of that Act is deemed to be a worker; and

        (b)     the first-mentioned person is deemed to be the employer of each person referred to in paragraph (a).

    (4)     Subclauses (1) and (2) do not apply if the outworker does not perform any of the outwork personally but engages a person or persons to perform all the outwork.

    (5)     For the purposes of the definition of "family entity", the outworker or a member of the outworker's family ( relevant person ), or any two or more of them together ( relevant persons ) are to be taken to have a controlling interest in a family entity if—

        (a)     where the family entity is a corporation—

              (i)     its directors (by whatever name called); or

              (ii)     a majority of its directors; or

              (iii)     one or more of its directors is, or are, entitled to exercise a majority in voting power at meetings of the directors—

are under an obligation or understanding to act in accordance with the directions, instructions or wishes of the relevant person or relevant persons; or

        (b)     where the family entity is a corporation with a share capital, the relevant person or relevant persons directly or indirectly exercise, control the exercise of, or substantially influence the exercise of more than 50 per cent of the voting power attached to voting shares or any class of voting shares issued by the corporation; or

        (c)     where the family entity is a partnership—the relevant person or relevant persons together—

              (i)     own (whether or not beneficially) more than 50 per cent of the capital of the partnership; or

              (ii)     are entitled (whether or not beneficially) to more than 50 per cent of any profits of the partnership; or

        (d)     where the family entity is a trustee of a trust that carries on a business, the relevant person or relevant persons (whether or not a trustee or trustees of, or beneficiary or beneficiaries of, another trust) are beneficiaries in respect of more than 50 per cent of the value of the interests in the trust.

    (6)     For the purposes of subclause (5)(d), a person who, as the result of the exercise of a power or discretion—

        (a)     by the trustee of a discretionary trust; or

        (b)     by any other person; or

        (c)     by a trustee of a discretionary trust and another person—

may benefit under a discretionary trust is deemed to be a beneficiary in respect of more than 50 per cent of the value of the interests in the trust.

    (7)     An amount paid or payable for the performance of outwork—

        (a)     to a person who, under subclause (1) is deemed to be a worker; or

        (b)     to a family entity or family business referred to in subclause (3)(a)—

by the person deemed under subclause (2) or (3)(b) to be the employer is deemed to be remuneration.

    (8)     In this clause—

"corporation "has the same meaning as in section 57A of the Corporations Act;

"family business" means an unincorporated business—

        (a)     of which a natural person who is an outworker is the sole proprietor; and

        (b)     that does not engage any person other than the outworker or a member of the outworker's family;

"family entity", in relation to an outworker, means—

        (a)     a corporation; or

        (b)     a partnership; or

        (c)     a trustee of a trust that carries on a business—

that does not engage any person other than the outworker or a member of the outworker's family and in respect of which one or more of the outworker and members of the outworker's family have a controlling interest;

"member of the outworker's family", in relation to an outworker, means any of the following—partner, father, mother, grandfather, grandmother, son, daughter, grandson, granddaughter, brother, sister, uncle, aunt, nephew, niece or cousin.

Part 2—Remuneration

Section 4(4)

        20     Definition of remuneration

    (1)     Subject to this clause, "remuneration" means any wages, remuneration, salary, commission, incentive-based payment, bonus, penalty rate, loading, overtime payment, monetary allowance or shift allowance (whether at piece work rates or otherwise and whether paid or payable in cash or kind) paid to or in relation to a worker and, without limiting the generality of the foregoing, includes but is not limited to the following—

        (a)     wages, remuneration, salary, commission, an incentive-based payment, bonus, penalty rate, loading, overtime rate, monetary allowance, piece rate, shift allowance (however described and whether paid or payable in cash or in kind) and whether paid by or on behalf of the employer or by a person working in concert with, or under an arrangement or understanding (whether formal or informal and whether expressed or implied) with the employer;

        (b)     an amount or payment that, under this Act, is deemed to be remuneration;

        (c)     a fringe benefit;

        (d)     a superannuation benefit, other than a superannuation benefit paid or payable in respect of services performed or rendered by a worker before 1 January 1998;

        (e)     an amount paid or payable by an entity to, or in relation to, a director or member of the governing body of that entity for services rendered by that director or member to the entity.

    (2)     "Remuneration "includes an amount that is the fringe benefits taxable amount (within the meaning of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth) in respect of benefits provided by an employer to which section 57, 57A or 58 of that Act applies.

    (3)     "Remuneration" does not include the following—

        (a)     an amount paid or payable to a person within the meaning of clause 17 engaged by an employer to participate as a contestant in a sporting or athletic activity in respect of the services provided by the person while the person is—

              (i)     participating as a contestant in that sporting or athletic activity; or

              (ii)     engaging in training or preparation with a view to so participating; or

              (iii)     travelling between a place of residence and the place at which the person is so participating or so engaged;

        (b)     an amount paid or payable to an apprentice under a training contract made in accordance with a training scheme that is approved by the Victorian Skills Commission under Part 5.5 of the Education and Training Reform Act 2006 if the apprentice or training scheme is, or is in a class of apprentices or training schemes declared by the Minister to be, an apprentice or training scheme to which this paragraph applies;

        (c)     an allowance for travel or accommodation paid or payable at a rate in a particular class or class of cases that does not exceed the rate prescribed for that class or classes;

        (d)     an amount that does not exceed the exemption limit in respect of the relevant financial year;

        (e)     any payment of compensation in respect of an injury under this Act, the Accident Compensation Act 1985 or the Workers Compensation Act 1958 ;

        (f)     in relation to a worker of a class to which an applicable prescribed percentage applies, that applicable prescribed percentage;

        (g)     the exempt component of a motor vehicle allowance paid or payable in respect of a financial year, calculated in accordance with clause 22;

        (h)         an accommodation allowance paid or payable to a worker in respect of a night's absence from the worker's usual place of residence that does not exceed the exempt rate, determined in accordance with clause 23;

              (i)     an amount referred to in clause 10(2).

    (4)     Any wages, remuneration, salary, commission, bonuses or allowances referred to in subclause (1)(a) are deemed to be paid or payable by the employer.

    (5)     A reference to remuneration paid or payable by an employer includes remuneration that is deemed to be paid or payable by the employer.

    (6)     "Paid", in relation to wages, remuneration, salary, commission, bonuses or allowances, includes provided, conferred and assigned.

        21     Remuneration—value of remuneration comprising fringe benefits

The value of remuneration comprising a fringe benefit is to be determined in accordance with the formula—

13-67a04721.jpg

where—

    TV     is the value that would be the taxable value of the benefit as a fringe benefit for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth;

    FBT rate     is the rate of fringe benefits tax imposed by the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth that applies when the liability to pay premium arises.

        22     Remuneration—motor vehicle allowance

    (1)     If the total motor vehicle allowance paid or payable to a worker in respect of a financial year—

        (a)     does not exceed the exempt component, the motor vehicle allowance is not remuneration; and

        (b)     exceeds the exempt component (if any), only that amount that exceeds the exempt component of the motor vehicle allowance is included as remuneration.

    (2)     The exempt component of a motor vehicle allowance paid or payable in respect of a financial year is calculated in accordance with the formula—

13-67a04722.jpg

where—

    E     is the exempt component;

    K     is the number of business kilometres travelled during the financial year;

    R     is the exempt rate.

    (3)     Unless subclause (5) applies to an employer, the number of business kilometres travelled during the financial year ("K") is to be determined in accordance with one of the following methods selected and used by an employer—

        (a)     the continuous recording method or the averaging method under Part 5 of Schedule 1 to the Payroll Tax Act 2007 ;

        (b)     a method approved by the Commissioner of State Revenue under section 29(6) of the Payroll Tax Act 2007 .

    (4)     The Authority may approve the use, by an employer or class of employer, of another method of determining the number of business kilometres travelled during the financial year (including the use of an estimate).

    (5)     If the Authority approves a method under subclause (4)—

        (a)     the approved method must be published in the Government Gazette; and

        (b)     the employer or class of employers referred to in the approval must determine the number of business kilometres travelled during the financial year in accordance with that approved method.

    (6)     For the purposes of this clause, the exempt rate for the financial year concerned is—

Sch. 1 cl. 22(6)(a) amended by No. 44/2014 s. 24(37).

        (a)     the rate prescribed by the regulations under section 28.25 of the Income Tax Assessment Act 1997 of the Commonwealth for calculating a deduction for car expenses for a large car using the "cents per kilometre method" in the financial year immediately preceding the financial year in which the allowance is paid or payable; or

        (b)     if no rate referred to in paragraph (a) is prescribed, the rate prescribed by the regulations under section 29(7)(b) of the Payroll Tax Act 2007 .

        23     Remuneration—accommodation allowance

    (1)     If the accommodation allowance paid or payable to a worker in respect of a night's absence from the worker's usual place of residence exceeds the exempt rate, remuneration includes that allowance only to the extent that it exceeds the exempt rate.

    (2)     For the purposes of this clause, the exempt rate for the financial year concerned is—

        (a)     the total reasonable amount for daily travel allowance expenses using the lowest capital city for the lowest salary band for the financial year determined by the Commissioner of Taxation of the Commonwealth; or

        (b)     if no determination referred to in paragraph (a) is in force, the rate prescribed by the regulations under section 30(3)(b) of the Payroll Tax Act 2007 .

        24     Rateable remuneration

    (1)     "Rateable remuneration "means remuneration that is paid or payable by an employer on or after 1 July 2014 in respect of services performed or rendered on or after 1 July 2014 by a worker whose employment is connected with the State of Victoria within the meaning of section 37.

    (2)     If remuneration for a financial year includes a fringe benefit, the amount of the fringe benefit paid or payable in respect of that year that is rateable remuneration is the amount of the fringe benefit paid or payable in respect of the period ending on 31 March in that financial year and beginning on the preceding 1 April.

    (3)     Remuneration that is superannuation benefits that are not paid in respect of services performed or rendered by a worker in a particular month is rateable remuneration as if it were paid or payable in respect of services performed or rendered during the month in which it is paid or became payable.

    (4)     Nothing in subclause (3) applies to render remuneration that is superannuation benefits paid or payable in respect of services performed or rendered by a worker before 1 July 2014 to be rateable remuneration.

Part 3—Other interpretation provisions

Section 4(5)

        25     Significant contributing factor

In determining whether a worker's employment was a significant contributing factor to an injury, the following must be taken into account—

        (a)     the duration of the worker's current employment;

        (b)     the nature of the work performed;

        (c)     the particular tasks of the employment;

        (d)     the probable development of the injury occurring if that employment had not taken place;

        (e)     the existence of any hereditary risks;

        (f)     the life style of the worker;

        (g)     the activities of the worker outside the workplace.

        26     Member of a family

    (1)     "Member of a family", in relation to a person, means—

        (a)     a partner, father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister, half-brother and half-sister of the person; and

        (b)     any person who stands in the place of a parent in relation to the person.

    (2)     "Member of a worker's family", member of a share farmer's family and member of an employer's family have the same meaning as member of a family has in subclause (1).

        27     Superannuation benefit

    (1)     "Superannuation benefit" means money paid or payable by an employer in respect of a worker—

        (a)     to or as a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; or

        (b)     as a superannuation guarantee charge within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth; or

        (c)     to or as any other form of superannuation, provident or retirement fund or scheme including—

              (i)     a Superannuation Holding Accounts Special Account within the meaning of the Small Superannuation Accounts Act 1995 of the Commonwealth; and

              (ii)     a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997 of the Commonwealth; and

              (iii)     a wholly or partly unfunded fund or scheme.

    (2)             A reference in subclause (1) to a worker includes a reference to any person to whom, by virtue of the definition of "remuneration", an amount paid or payable in the circumstances referred to in that definition constitutes remuneration.

    (3)     For the purposes of subclause (1)(c), a superannuation, provident or retirement fund or scheme is unfunded to the extent that money paid or payable by an employer in respect of a worker covered by the fund or scheme is not paid or payable during the worker's period of employment with the employer.

Note

See also section 446.



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