Australian Capital Territory v Comcare
[2012] FCA 67
•10 February 2012
FEDERAL COURT OF AUSTRALIA
Australian Capital Territory v Comcare [2012] FCA 67
Citation: Australian Capital Territory v Comcare [2012] FCA 67 Appeal from: ACT Department of Justice and Community Safety and Comcare and Anor [2011] AATA 467 Parties: THE AUSTRALIAN CAPITAL TERRITORY
v COMCARE and NEIL GOODWINFile number: ACD 40 of 2011 Judge: BENNETT J Date of judgment: 10 February 2012 Corrigendum: 24 April 2012 Catchwords: WORKERS’ COMPENSATION – employee’s weekly compensation payments under s 19 Safety, Rehabilitation and Compensation Act 1988 (Cth) – normal weekly earnings adjustment under s 8(10) – application of s 8(10)(a) where employee on long service leave – scope of term “employment” in s 8(10) – comparison of normal weekly earnings with notional earnings during period of long service leave – non-inclusion of overtime payments Legislation: ACT Fire Brigade Union Collective Agreement 2006 - 2010 cl 78
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Public Sector Management Act 1994 (ACT) part 7, ss 152 and 158
Public Sector Management Standards 2006 (ACT) part 4.18 and s 411
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 8(10), 9 and 19Cases cited: Comcare v Burgess (2007) 164 FCR 66, not followed
John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566, appliedDate of hearing: 19 December 2011 Place: Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 55 Counsel for the Applicant: Mr P Hanks QC with Mr R Cook Solicitor for the Applicant: ACT Government Solicitor Counsel for the First Respondent: Mr T Howe QC Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr A Muller Solicitor for the Second Respondent: Slater & Gordon FEDERAL COURT OF AUSTRALIA
Australian Capital Territory v Comcare [2012] FCA 67
CORRIGENDUM
1.In paragraph 3 of the Orders, the words “the Tribunal” should read “Comcare”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Bennett. Associate:
Dated: 24 April 2012
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 40 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: THE AUSTRALIAN CAPITAL TERRITORY
ApplicantAND: COMCARE
First RespondentNEIL GOODWIN
Second Respondent
JUDGE:
BENNETT J
DATE OF ORDER:
10 FEBRUARY 2012
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The decision of the Tribunal be set aside and the following decision substituted:
(a) The decision of Comcare is set aside.
(b)In substitution, it is decided that the compensation payable to the second respondent, Mr Goodwin, pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) during the period of his long service leave between 18 August 2008 and 19 December 2008 must be calculated by reference to Mr Goodwin’s normal weekly earnings excluding overtime.
3.The matter is remitted to the Tribunal to decide according to law.
4.The first respondent pay the applicant’s and second respondent’s costs of the application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 40 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: THE AUSTRALIAN CAPITAL TERRITORY
ApplicantAND: COMCARE
First RespondentNEIL GOODWIN
Second Respondent
JUDGE:
BENNETT J
DATE:
10 FEBRUARY 2012
PLACE:
CANBERRA
REASONS FOR JUDGMENT
The Australian Capital Territory (the ACT) appeals from the decision of the Administrative Appeals Tribunal (the Tribunal) in which the Tribunal affirmed the decision of Comcare in respect of Mr Goodwin. Mr Goodwin is employed by the ACT Department of Justice and Community Safety (JACS). In 1986, Mr Goodwin was injured in employment as a member of the ACT Fire Brigade. He claimed, and was paid, compensation and was subsequently employed by JACS in a clerical capacity. Mr Goodwin continues to suffer a partial incapacity for work as a result of the injury.
In 1987, by agreement between Comcare and Mr Goodwin, Comcare paid Mr Goodwin for an additional nine hours per week, representing an average of the overtime entitlements to which it was determined he would have been entitled had he remained in his previous position prior to his injury. Mr Goodwin was paid weekly compensation from this time under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
The dispute the subject of the Tribunal’s decision arises in relation to a period of long service leave (leave period) that Mr Goodwin took between 18 August and 19 December 2008. Mr Goodwin commenced long service leave pursuant to clause 78 of the ACT Fire Brigade Union Collective Agreement 2006-2010 (the Agreement). The dispute concerns the amount of compensation that Mr Goodwin was entitled to receive during the leave period, and whether this should have included overtime payments. It was an agreed fact before the Tribunal that the Agreement applied and that Mr Goodwin’s employment was, among other things, subject to the terms and conditions of Part 7 of the Public Sector Management Act 1994 (ACT) (the PSM Act) and Part 4.18 of the Public Sector Management Standards 2006 (ACT) (the Standards), made under the PSM Act.
In January 2009, Comcare decided that Mr Goodwin’s weekly compensation for incapacity during the leave period should be calculated on the basis of his average weekly hours prior to injury, including overtime. The ACT requested reconsideration of that decision and, in May 2010, Comcare affirmed its initial decision. The ACT applied to the Tribunal for a review of the Comcare decision, arguing that Mr Goodwin’s normal weekly earnings (NWE) should be reduced under s 8(10) of the SRC Act.
In July 2011, the Tribunal affirmed the Comcare decision. The Tribunal decided that s 8(10)(b) of the Act applied to Mr Goodwin’s circumstances.
THE APPLICATION TO THE COURT
The ACT appeals to the Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The appeal is directed to s 8(10) of the SRC Act. The ACT contends that the Tribunal erred in the construction of s 8(10). It would seem that no party supported the application of subsection 8(10)(b) rather than of s 8(10)(a). Comcare did not support its previous decision, contending that s 8(10)(a) should be applied and that Mr Goodwin should not be paid for overtime during the leave period.
The ACT frames a series of questions of law, each concerning the proper construction of s 8(10)(a) and s 8(10)(b) and the incorrect application of the PSM Act and the Standards. The ACT submits that the Tribunal asked itself the wrong question in respect of the application of s 8(10).
The ACT also contends that it was denied procedural fairness by the Tribunal when the Tribunal decided the matter on the basis raised by none of the parties and did not give the ACT any opportunity to make submissions on that basis. However, as the matter has been fully addressed in this appeal from the Tribunal, the ACT submits, and I accept, that there is no need to deal separately with this ground.
THE RELEVANT LEGISLATION
Section 19 of the SRC Act determines the amount of Mr Goodwin’s weekly compensation relating to incapacity for work that is payable during the period of his long service leave. This section applies the formulae ‘NWE – AE’ or ‘(Adjustment percentage x NWE) – AE’, where AE is the weekly amount the injured employee is able to earn in suitable employment or the amount he or she actually earns in any employment, whichever is greater. Section 19(4) sets out matters to which regard must be had when assessing the AE amount in respect of suitable employment. The Adjustment percentage is calculated according to the percentage of normal weekly hours for which the employee is employed. The NWE is to be calculated under s 8 of the SRC Act. This section requires the calculation of NWE during a period prior to injury, the “relevant period” determined under s 9.
Subsections 8(1), (2), (3), (4), (5) and (8) are directed to the calculation of NWE during the relevant period, pre-injury. NWE is calculated using the formulae set out in s 8(1) concerning ordinary hours worked: (NH x RP) + A. NWE can be increased using the formula set out in s 8(2) concerning overtime hours worked: (NH x OR). NH refers to the average number of ordinary or overtime hours worked respectively; RP and OR are the average ordinary or overtime hourly rates of pay respectively; and A is the average amount of allowances payable.
Subsections 8(6), (7), (9) and (9A) to (9G) operate to vary the injured employee’s NWE amount in light of changing circumstances from time to time after an injury. These sections are said to ensure that the injured worker is not worse off than he or she otherwise would have been absent injury and resulting incapacity for work. The characterisations “worse off” and “better off” are not tests that are expressly required for the purposes of s 8.
Section 8(10) provides a mechanism to reduce an injured employee’s NWE if the NWE amount exceeds the earnings that he or she would have received in continuing employment, absent incapacity for work or the cessation of employment.
Section 8(10) of the SRC Act provides for two alternatives. Section 8(10)(a) applies where the employee continues to be employed by, in this case, the ACT, which is treated as the Commonwealth for the purpose of the section. Section 8(1)(b) applies where the employee has ceased to be employed by the ACT. Section 8(1) provides:
If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:
(a)where the employee continues to be employed by the Commonwealth or a licensed corporation—the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or
(b)where the employee has ceased to be employed by the Commonwealth or a licensed corporation—whichever is the greater of the following amounts:
(i)the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;
(ii)the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;
the amount so calculated shall be reduced by the amount of the excess.
At the relevant time, the PSM Act provided, in s 158, that if a period of service of a category A officer is at least 10 years which, it is accepted, applied to Mr Goodwin, the approving authority may grant long service leave on full salary for the relevant period. The PSM Act provides in s 152 that the Standards may provide that payments of a specified kind, such as long service leave, are not included in salary.
At the relevant time, s 411(1) of the Standards relevantly provided:
For the purposes of the Act, the following are not included in salary for LSL –
(a) …
(b) overtime payments, as defined;
…
Subsection 411(4) then defined an overtime payment as, relevantly:
(a) a payment, however described, for work in excess of standard hours; or
(b) …
(c)a payment to an officer for all of their overtime work regardless of its length or frequency; or
(d) any other payment in lieu of a payment for overtime.
THE TRIBUNAL DECISION
In its written submissions, the ACT adequately summarised the Tribunal’s reasons as follows in [17] to [24] below:
The Tribunal determined that the term “employment” as used in the SRC Act, ‘essentially includes the performance of duties or work’ (at [31]). Section 8(10)(a) of the SRC Act would only apply where, during the relevant period, the employee continued to work, providing service, to receive earnings in the employment during that week (at [33]). If the answer to that question were “no”, then s 8(10)(b) would apply.
The Tribunal determined that, ‘while absent on leave [Mr Goodwin] did no work and provided no service, other than perhaps being absent on long service leave’; and ‘these circumstances are not consistent with Mr Goodwin working or providing service while absent on leave, and they intrude upon the continuity of his “employment” for the purposes of s 8(10)’ (at [40]).
The Tribunal concluded as follows (at [41]):
For this reason I am reasonably satisfied that Mr Goodwin did not continue to be ‘employed’ for the purpose of section 8(10) during the period of his absence on long service leave: he did no work and he provided no service in his employment even though the terms of employment were subsisting and he continued to receive salary payments during the period of absence on leave. In those circumstances, it follows that section 8(10)(b) applies.
Applying s 8(10)(b) of the SRC Act, the Tribunal at [47] concluded that there was no reduction of Mr Goodwin's NWE during the period of his long service leave; so that the decision under review should be affirmed.
The Tribunal then looked at the question whether there would be a reduction in Mr Goodwin’s normal weekly earnings if s 8(10)(a) had applied. It appears that the AAT would have found that the amount per week of the earnings that Mr Goodwin would have received for the purposes of s 8(10)(a) during the period of his leave would be ‘the notional amount to which he would be entitled by his labour in continuing employment performing duties without the constraint of incapacity, calculated by multiplying the number of hours he would have worked by the applicable rate of pay’ (at [51]). That analysis was plainly affected by the Tribunal's understanding that Mr Goodwin could only be regarded as “employed”, for the purposes of s 8(10)(a), if he was undertaking work and providing service to the ACT.
The Tribunal (at [52]) determined that its construction was consistent with the reasoning of Greenwood J in Comcare v Burgess (2007) 164 FCR 66; and with the law as stated by Dowsett J in John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566 at [74].
The Tribunal set out its conclusion in the following terms (at [55]):
Thus, the amount of Mr Goodwin's notional weekly earnings for the purposes of section 8(10)(a) is the amount that he would have earned each week performing duties and working hours without the constraint of incapacity resulting from injury – his notional weekly earnings during the period of his absence on long service leave would be derived from the duties he would have performed and the hours he would have worked if he was free from incapacity. It would be reasonable to proceed on the basis that the duties he would have performed would be the duties of his employment position or job of work plus the duties he was prevented from performing by his incapacity; and the hours he would have worked are the hours he worked performing the duties of his position or job plus the hours he was prevented from working by his incapacity – 9 hours of overtime each week.
The Tribunal (at [21]) accepted that Mr Goodwin was employed while on long service leave in the sense that his terms of employment were ongoing. The Tribunal then posed the question: ‘But is this sufficient for the purposes of s 8(10)(a) of the SRC Act?’ and referred to the decision made by Greenwood J in Burgess where his Honour said (at [24]–[26]):
The subsection assumes continuity of employment and the receipt of earnings and therefore a continuity of performance of the contract ... the continuity of employment contemplated by s 8(10)(a) is continuity of provision of service and receipt of earnings not simply a subsisting employer/employee relationship.
The Tribunal then said (at [22]):
On this construction, if an injured employee is absent from his or her employment while incapacitated for work and provides no services in respect of the employment during the period of absence, the employment may be taken to have ceased during that period for the purposes of s 8(10) of the SRC Act. On that basis, s 8(10)(b) would apply during the period of absence on leave.
It should be noted that the Tribunal there referred only to the provision of services, the absence of which it said would lead to a conclusion that employment had ceased for the purposes of s 8(10) of the Act, such that s 8(10)(b) would apply but apparently only during the period of absence of leave. The Tribunal did not discuss the application of the second aspect noted by Greenwood J to Mr Goodwin’s circumstances, that is, the receipt of earnings.
In essence, the ACT submits that the Tribunal erred in construing s 8(10)(a) of the SRC Act as excluding from “continues to be employed”, an employee during the period of the employee’s long service leave, granted as an entitlement of the employment. The ACT also contends that the Tribunal erred in concluding that an employee granted long service leave as an entitlement of his or her employment pursuant to s 158(2) of the PSM Act, does not continue to be employed for the purposes of s 8(10) of the SRC Act during the period of the employee’s absence on long service leave.
The ACT contends that, on the uncontested facts as found by the Tribunal, the Tribunal should have found that during the period of Mr Goodwin’s long service leave, the compensation payable to him under s 19 of the SRC Act should not have included an amount paid for working overtime.
CONSIDERATION
The issue to be decided has a narrow compass. It is necessary to determine whether Mr Goodwin’s NWE amount should be reduced under s 8(10) of the SRC Act during the leave period from 18 August 2008 to 19 December 2008.
It should be noted at the outset that neither the ACT, nor Comcare, nor Mr Goodwin supports the reasoning or the conclusions of the Tribunal. All parties contend that s 8(10)(a) of the SRC Act applies. Mr Goodwin filed a notice of contention but accepts that the subject matter of that notice is not properly for consideration by the Court in these proceedings.
The question is whether Mr Goodwin is entitled to be paid for overtime while absent on approved long service leave. By operation of clause 78 of the Agreement, s 152 of the PSM Act and s 411 of the Standards then in force, “overtime payments” are expressly not included as salary during periods of long service leave. Guidance as to the meaning of the term “overtime payment” is given in s 411(4) of the Standards. As can be seen, the term has a broad meaning and includes ‘a payment, however described, for work in excess of standard hours’ and ‘any other payment in lieu of a payment for overtime’.
The ACT points out that, as Mr Goodwin’s NWE during the leave period was calculated on the basis of 9 hours per week overtime, his NWE amount exceeded the weekly amount he would have been paid in his continuing employment absent incapacity during the leave period. This renders Mr Goodwin better off as a result of his injury than he would otherwise have been as, if he were not incapacitated for work, he would not have received overtime pay during the leave period.
This would be rectified under s 8(10) of the SRC Act by reducing Mr Goodwin’s NWE during the leave period. The correct test under s 8(10) of the SRC Act is whether an incapacitated employee’s NWE amount in any week after an injury exceeds the weekly earnings that he or she would receive in continuing employment, but for incapacity or cessation of the employment. It is not whether an incapacitated employee is “better off” because his or her NWE amount exceeds the amount of actual earnings in any week after an injury.
In Burgess, Greenwood J considered the position where an employee had been suspended from employment without pay while she was receiving compensation for a work-related injury. His Honour set out the purpose of the statutory regime at [19]:
The SRC Act provides for a statutory compensation regime in respect of an injury suffered by an employee if the injury results (among other things) in incapacity for work. The regime is compensatory. The expression of that compensation for incapacity for work is found in a formula that adjusts (according to a range of considerations) normal weekly earnings determined immediately prior to the injury so that an incapacitated employee receives compensation for lost earnings or at least a statutory proportion of those lost normal weekly earnings during each week the incapacity endures. Because the regime is compensatory, the determination of normal weekly earnings (as the foundation for the ultimate calculation of the compensatory payment) is to be reached having regard to whether the statutory calculation (according to s 8(1) to s 8(9) of the SRC Act) of normal weekly earnings is greater than the amount an employee would have received had he or she not been incapacitated for work by reason of the injury. If the normal weekly earnings so determined exceed those earnings, normal weekly earnings are reduced by the amount of the excess. An employee (subject to the adjustments incorporated within the formula) ought not, as a matter of statutory purpose, to be better off by way of compensation than he or she would have been had incapacity not resulted from the injury.
His Honour observed at [20] that if the employee had been suspended from employment without pay, there were no weekly earnings lost by reason of incapacity to be compensated according to the formula in s 8(1). His Honour accepted that Ms Burgess continued to be employed by the Commonwealth and that her contract of employment had not ceased or been terminated at [26]. He said at [25] that continuity of employment contemplated by s 8(10)(a) contemplated the circumstance that a person continues to provide service to, and correspondingly continues to receive earnings from, the Commonwealth. However, his Honour was concerned that during her period of suspension, Ms Burgess neither provided services nor received earnings, an event his Honour said was not contemplated by the section. For the purposes of the formula contemplated by s 19(3) of the SRC Act, Greenwood J concluded that s 8(10)(a) does not operate to reduce the NWE calculated under s 8 to zero. His Honour did not find that s 8(10)(b) operated, apparently because Ms Burgess’ employment had not been terminated or “ceased”. That is, his Honour seemed to find a third alternative in s 8(10), outside the terms of that subsection.
In John Holland, the Full Court considered the entitlements of Mr Robertson, who had been injured and where, during his incapacity for work, in accordance with his terms of employment contract, his employment ceased. In the course of his Honour’s reasons, Dowsett J, with whom Spender J agreed, gave detailed consideration to Greenwood J’s reasons in Burgess. Justice Dowsett stated at [42], with respect to the application of s 8(10):
In my view an injured employee must either continue to be relevantly employed or not. Either s 8(10)(a) or s 8(10)(b) must apply.
His Honour also observed that the question may be to ask whether s 8(10)(b) applied and that if an employee is not performing duties and is not receiving remuneration, that may indicate that the person is no longer employed. However, if suspension does not terminate employment in the relevant sense, then s 8(10)(a) applies.
Justice Dowsett cast doubt on the reasoning in Burgess. I have been asked by Comcare to find the decision in Burgess clearly wrong. The ACT does not make that submission but reserves its right to advance the same contention in the future. Mr Goodwin does not specifically address this issue.
I do not propose to consider Burgess further. It is sufficient that I accept the reasoning of Dowsett J in John Holland. In particular, I accept that s 8(10) provides for two alternatives only.
In the present case, s 8(10)(b) clearly does not apply. It follows that s 8(10)(a) does apply. Mr Goodwin is still employed by the ACT. He continued to be so employed during his long service leave. Mr Goodwin’s employment was not suspended; it remained extant and operational. Mr Goodwin continued to receive earnings while he was on long service leave. The leave was, according to s 158(2) of the PSM act “on full salary” but that amount did not include overtime payments, as provided in the Standards, s 411(1)(b).
In any event, in Burgess, Greenwood J referred to the cessation of two factors that led him to conclude that s 8(10)(a) did not apply, being the continuity of service and the receipt of earnings. Here, those indications of employment continued during the period of long service leave. Mr Goodwin was in receipt of remuneration. Further, although he was not actually providing services in the normal course of his employment, the Agreement, which “covered” Mr Goodwin, provided in clause 78.7 that the encouragement of utilisation of long service leave is a mutual responsibility – arguably a recognised service. The Agreement also provided that the eligibility requirements and entitlements for long service leave under the PSM Act and Standards apply (Clause 78.1). Section 415 of the Standards, which apply to Mr Goodwin’s employment, provides that when applying for long service leave, an officer must seek approval if he or she proposes to engage in outside employment during long service leave. This is a continuing obligation on the part of the officer during long service leave.
The Tribunal based its decision on its conclusion that Mr Goodwin did no work and provided no service in his employment during the leave period. The Tribunal omitted to address the obligations that Mr Goodwin had to his employer while on leave and the fact that he continued to derive earnings from his employer. In any event, Burgess did not apply to this case.
With great respect to the Tribunal, I cannot accept the proposition that an employee who is on long service leave, during which he is remunerated and which is taken in accordance with applicable terms and conditions of his employment, ceases to be employed. The same logic would mean that employees on recreation leave or maternity leave cease to be employed. That is clearly not the case, nor is such a conclusion required by the SRC Act. That Act recognises that an employee may continue to be employed by the Commonwealth regardless of whether the person happens actually to be performing duties or is on leave.
I accept Comcare’s submission that the Tribunal asked and answered the wrong question at [33] of its reasons. The question is not whether, in the period of calculation of incapacity payments, a claimant renders service in the sense of performing the duties of his or her employment. It is whether the claimant remains an employee or not. The Tribunal should have found that s 8(10)(a) applied to Mr Goodwin and not s 8(10)(b).
In any event, as Dowsett J pointed out in John Holland at [73]– [76], the SRC Act is concerned with conditions in which employees work and their terms of engagement. Although there is no express link in the Act between s 8 and those terms and conditions, as his Honour observed, it is common general knowledge in the Australian community that workers, here in the public service, are subject to such terms and conditions. As his Honour said, the decision-maker must take the terms of employment into account. In Mr Goodwin’s case, an employee would not have received overtime payments during long service leave by reason of s 411 of the Standards.
It follows that for the purposes of s 8, the NWE of an employee before an injury who took long service leave would not receive payments for overtime. Whether subsection (a) or (b) applied, Mr Goodwin’s NWE before the injury would exceed the earnings that he would have received had he not been incapacitated from work or whether he had ceased to be employed and the amount was calculated by reference to what he would have received if he had continued to be employed. In either case, the amount of NWE would be reduced by the amount of the excess, attributable to overtime.
Even if s 8(10)(b) applied, the decision in John Holland requires that each of the amounts referred to in s 8(10)(b)(i) and (ii) be calculated by reference to any (otherwise) applicable terms and conditions of employment. In the case of John Holland, this meant that Mr Robertson was not entitled to have overtime included as part of the calculation under s 8(10)(b), because the terms and conditions of Mr Robertson’s “ceased” employment required that he be paid only such overtime as he actually performed – see at [76]–[77]. In Mr Goodwin's case, the terms of his so-called “ceased” employment (assuming s 8(10)(b) applies) require that he not be paid for or in lieu of overtime during periods of LSL. In this regard, it is not disputed that under the terms and conditions of Mr Goodwin’s pre-injury employment as a firefighter, he was not entitled to the payment of any overtime during periods of LSL.
It follows that the appeal should be allowed and the decision of the Tribunal set aside, together with the decision of Comcare. Mr Goodwin’s NWE should be reduced by the amount it exceeds the amount that otherwise would be payable during the period of his long service leave.
The parties agree that the appropriate course is to remit the matter to Comcare for reconsideration according to law. There is an outstanding matter, raised in Mr Goodwin’s notice of contention, as to the correct determination of NWE under s 8(1) of the SRC Act. It was not before the Tribunal, is not properly the subject of this application and was not pressed, save to the extent that it is agreed that the decision under review should be remitted to Comcare. The question of the correct determination of Mr Goodwin’s NWE should be remitted to Comcare for reconsideration.
Costs
Comcare has agreed to pay Mr Goodwin’s costs. Comcare says that this is because, in its submission, there is a strong public interest dimension in the case. It also recognises that it altered its position, since its reviewable decision, after the decision John Holland, which cast doubt on the decision in Burgess. It is those same matters that lead Comcare to submit that it should not pay the ACT’s costs. Comcare submits that its decision was subject to Burgess and that it should not pay the ACT’s costs when there was a later relevant decision, John Holland, and where it did not advocate the application of s 8(10)(b) before the Tribunal and told the Tribunal that it doubted its own decision.
The ACT says that the problem was created by Comcare, that Comcare submitted to the Tribunal that it should apply Burgess and distinguish John Holland and that the Tribunal purported to adopt this course and then affirmed the Comcare decision.
I accept that there is a public interest aspect to this case, in relation to the question of the continuation of employment while on long service leave. I also accept the relevance of Burgess in the reasoning of the Tribunal, although I have concluded that the Tribunal misapplied the reasoning in that case. If Comcare purported to follow Burgess, it too misapplied it.
It was Comcare’s decision under review. Comcare did, as noted by the Tribunal, inform the Tribunal that it doubted its decision. However, the hearing did proceed to its conclusion and Comcare’s decision was affirmed by the Tribunal.
In the circumstances, I do not accept that the ACT should bear its own costs. Comcare should, as agreed, pay Mr Goodwin’s costs and also the ACT’s costs of this application.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate:
Dated: 10 February 2012
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