BARRY LAWSON and STATESHIPS - [2012] AATA 511

[2012] AATA 511

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/5638

Re

BARRY LAWSON

APPLICANT

And

STATESHIPS

RESPONDENT

DECISION

Tribunal
The Hon Robert Nicholson, Deputy President

Date 3 August 2012

Place Perth
Decision Summary
The decision under review is affirmed.
........[sg].......Hon Robert Nicholson........................................
The Hon Robert Nicholson, Deputy President
CATCHWORDS
Catchwords
COMPENSATION – seafarer – applicant paid under award – whether applicant entitled to a further increase in normal weekly earnings – effect of prior decision of Tribunal – effect of appellate decision of Federal Court of Australia
LEGISLATION
Seafarer's Rehabilitation and Compensation Act 1992 ('the Act')
CASES
Lawson v Stateships [2003] AATA 389

ASP Ship Management Pty Ltd v Wood [2007] FCAFC 142 (ASP Ship Management)
REASONS FOR DECISION
The Hon Robert Nicholson, Deputy President
3 August 2012

The applicant is a 66 year old former seafarer, born on 2 August 1945.
The applicant’s claim concerns whether there has been a shortfall in his salary. It is not in issue that the applicant has been paid all relevant salary increases in accordance with Lawson v Stateships [2003] AATA 389 since 10 June 1994 pursuant to the Maritime Industry Modern Ships Award 1989 (‘MIMSA’), the Norwest Shipping/MUA Enterprise Agreement 2000, the Patrick Norwest Shipping/MUA Enterprise Agreement 2003, the Seacorp Coastal Shipping/MUA Enterprise Agreement 2006 and the Seacorp Coastal Shipping/MUA Enterprise Agreement 2009.
The applicant’s claim is that as a consequence of the decision of the Federal Court (French, Tamberlin and Rares JJ) in ASP Ship Management Pty Ltd v Wood [2007] FCAFC 142 (ASP Ship Management) the salary increases awarded to the class of employee in the uncertified agreement described as the Union Bulkships/MUA Enterprise Agreement 1997 (‘the Uncertified 1997 Agreement’) should have been awarded to him and all subsequent payments paid using that as the base salary for the percentage increases awarded in the pre-mentioned enterprise agreements.
STATUTORY BASIS OF CLAIM
Section 31 of the Seafarer’s Rehabilitation and Compensation Act 1992 (‘the Act’) provides for the payment of compensation, to "an employee who is incapacitated for work as a result of an injury", by way of incapacity payments in accordance with a formula which includes the amount of the employee's "normal weekly earnings". The meaning of the expression "normal weekly earnings" is explained in s13 of the Act which relevantly provides:
"13(1) For the purposes of this Act, if an employee who is a seafarer suffers an injury, the employee's normal weekly earnings are an amount equal to the amount payable weekly to the employee by way of salary under the contract of employment that applied to his or her employment immediately before the injury happened.
...
13(6) If the amount per week payable to employees in a class to which the employee belonged when the injury happened is later increased or reduced as a result of:
(a) the operation of a law of the Commonwealth, or of a State or Territory; or
(b) the making, alteration or operation of an award, determination or certified…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] AATA 511
Decision Date: 3 August 2012

CaseChat Overview and Summary

The parties involved in the dispute were Barry Lawson, the applicant, and Stateships. The dispute centred around the entitlement of the applicant, a seafarer, to an increase in his normal weekly earnings beyond what he had already been paid under an award. The case was heard in the Federal Circuit and Family Court of Australia. The primary legal issue the court had to decide was whether the applicant was entitled to a further increase in his normal weekly earnings, considering the effect of a prior decision of the Fair Work Commission and an appellate decision of the Federal Court of Australia. The court also had to consider the relevance of a 1997 draft agreement, which had not been certified, in determining the applicant's entitlement to an increase in salary.

The court examined the statutory provisions and the relevant case law, particularly the ASP Ship Management case, to determine the appropriate method for calculating the applicant's normal weekly earnings. It concluded that the increase or reduction of the amount per week must occur as a result of one of the three options specified in section 13(6) of the Act, which include the operation of a law, the making of an award, determination, or certified agreement, or the doing of any other act or thing under such a law. The court found that the 1997 draft agreement, being uncertified, could not constitute a basis for an increase in the applicant's salary under section 13(6) of the Act. The court also noted that the decision in Lawson No 2 did not imply that the base of the applicant's salary should be increased, but rather that the normal weekly earnings should be increased by the same percentage payable to a cook/seaman with the abovementioned class of employees covered by the 2000 Certified Agreement.

In light of the above, the court affirmed the decision under review. The court held that the applicant was not entitled to a further increase in his normal weekly earnings beyond what he had already been paid under the award. The court found that the provisions of section 13(6) of the Act required the increase or reduction of the amount per week to occur as a result of one of the three options specified in the Act, and that the 1997 draft agreement, being uncertified, could not constitute a basis for such an increase. Additionally, the court found that the decision in Lawson No 2 did not imply that the base of the applicant's salary should be increased, but rather that the normal weekly earnings should be increased by the same percentage payable to a cook/seaman with the abovementioned class of employees covered by the 2000 Certified Agreement.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I note that there is evidence of amounts paid to him by the respondent and that on 15 March 2010 the applicant had decided to accept the respondent’s offer as ‘final settlement’ of the arrears owing.CONCLUSION For the above reasons, the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

I will refer to the respondent’s contentions where relevant in the course of setting out my views on the applicant’s submissions.CONSIDERATION OF CONTENTIONS I agree with the submission for the respondent that what ASP Ship Management is authority for, consistently with s 13(6) of the Act, is that a new or changed law or award, determination or certified agreement following the event which gives rise to the employee’s entitlement to compensation will apply to that employee if the employee is within the class of employees to which the new or changed law or award, determination or certified agreement applies. It goes further and states that if no award, determination or certified agreement exists in relation to an employee or has been abolished, s 13(6) of the Act requires the employer liable for compensation, or the Tribunal, to increase or reduce the normal weekly earnings by identifying a hypothetical amount against which to calculate an increase or decrease, if no more precise comparator is available (ASP Ship Management at [35]). The reference to the identification of a hypothetical amount refers to the determination of an amount in circumstances where the old position held by the employee does not exist or an award, determination or certified agreement is not in force for the purposes of determining a figure to which the new award, determination or certified agreement can be applied. This reasoning in ASP Ship Management is confirmatory of the foundation of the Tribunal’s reasoning in Lawson No 1: namely that it is the provisions of s 13(6) of the Act which must be complied with in the present circumstances. Those provisions require that the increase or reduction of the amount per week occurs as a result of one of the three options (the operation of a law, the making of an award, determination or certified agreement or the doing of any other act or thing under such a law) having occurred in the law. It gives no foundation for substituting such an event occurring outside the law. The reference to ‘hypothetical amount’ is not an invitation to substitute an amount reached outside the requirements of s 13(6). For the same reason I accept the view that the 1997 draft agreement, being uncertified, cannot constitute a basis for an increase in the applicant’s salary pursuant to s 13(6) of the Act. Additionally it should be said that the decision in Lawson No 2 is not that the base of the applicant’s salary should be increased; rather that the normal weekly earnings be ‘increased’ by the same percentage payable to a cook/seaman with the abovementioned class of employees covered by the 2000 Certified Agreement. The reference to the latter agreement followed from a finding that the MIMSA Award had been superseded by the MISA Award and that on 17 October 2000 the Norwest Shipping/Maritime Union of Australia Agreement was certified by the Australian Industrial Relations Commission with effect from 16 October 2000 and that agreement applied to the applicant (see pars [7]-[8], [40]. These findings are unchallenged by the applicant, who relies upon the four agreements previously referred to.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/5638
Re	BARRY LAWSON
APPLICANT
And	STATESHIPS
RESPONDENT

Tribunal	The Hon Robert Nicholson, Deputy President
Date	3 August 2012
Place	Perth