Beth Brady and Comcare
[2013] AATA 559
[2013] AATA 559
Division General Administrative Division File Number
2012/5138
Re
Beth Brady
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 9 August 2013 Place Perth The decision under review is affirmed.
..................[sgd]................................................
S D Hotop
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant sustained compensable injury during training period while in receipt of only base salary – applicant subsequently received additional payments for nightshift and overtime – calculation of amount of compensation payable to applicant for incapacity for work – calculation of applicant’s normal weekly earnings (NWE) – applicant’s NWE does not include nightshift payments or overtime rates – amount of compensation payable to applicant for incapacity for work calculated on that basis – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 8 and s 9(1)
CASES
Bortolazzo v Comcare (1997) 75 FCR 385
Comcare v Thompson (2000) 100 FCR 375
McDonald v Department of Defence [1999] FCA 882
REASONS FOR DECISION
Deputy President S D Hotop
9 August 2013
Introduction
Beth Brady (“the applicant”) commenced employment with the Australian Federal Police (“AFP”) on 28 February 2011 as a trainee in the Protective Service Officer Program. In early March 2011, while engaged in that training program, the applicant injured her right shoulder.
On 12 August 2011 a delegate of Comcare (“the respondent”) accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) to pay compensation to the applicant in respect of an injury described as “supraspinatus (muscle) (tendon) strain (right)”, the accepted date of that injury, for the purposes of the SRC Act, being 11 March 2011. The description of the relevant compensable injury was, by a reviewable decision dated 31 October 2011, varied to be “aggravation of supraspinatus (muscle) (tendon) strain (right)” (“the compensable injury”).
The respondent made various determinations regarding the amount of compensation that it was liable to pay to the applicant, pursuant to s 19 of the SRC Act, for incapacity for work resulting from the compensable injury for the period from 14 August 2011 to 28 March 2012.
By emails sent to the respondent on 10 October 2011, 24 October 2011 and 1 December 2011, the applicant queried the basis of the respondent’s calculation of the amount of compensation payable to her in accordance with s 19 of the SRC Act, as reflected in the abovementioned determinations.
On 28 March 2012 a delegate of the respondent made a reviewable decision under s 62 of the SRC Act affirming those determinations.
The applicant has applied to the Tribunal for a review of the reviewable decision of 28 March 2012.
The evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T47, pp 1–106) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·bundle of supplementary documents (S1 – S5, pp 1 – 62) filed by the respondent on 5 July 2013;
·Parts II and III of the applicant’s Statement of Facts, Issues and Contentions filed on 16 July 2013 (Exhibit A1);
·earnings comparison spreadsheet (Exhibit A2); and
·bundle of documents produced by the AFP under summons (Exhibit A3).
The Relevant Legislation
Section 19 of the SRC Act, which provides for the payment of compensation for injuries resulting in incapacity for work, prescribes formulae for calculating the amount of such compensation which is payable in certain periods and circumstances. An element of those formulae is the amount of the relevant employee’s “normal weekly earnings” (“NWE”). The phrase “normal weekly earnings” is defined in s 4(1) of the SRC Act to mean “the normal weekly earnings of an employee calculated under section 8”.
Section 8 of the SRC Act relevantly provides:
“ 8 Normal weekly earnings
(1)For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
(NH x RP) +A
where:
NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
RP is the employee’s average hourly ordinary time rate of pay during that period; and
A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
(2)Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:
NH x OR
where:
NH is the average number of hours of overtime worked in each week by the employee in his or her employment during the relevant period; and
OR is the employee’s average hourly overtime rate of pay during that period.
…
(4)Where, because of the shortness of the relevant period, it is impracticable to calculate the normal weekly earnings of an employee before an injury under subsection (1) or (2), the normal weekly earnings of the employee before the date of injury shall be taken to be the normal weekly earnings before that date of another employee performing comparable work, being normal weekly earnings from employment by the Commonwealth or a licensed corporation and calculated under subsection (1) or (2), as the case requires.
(5)Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.
(6)Subject to this section, if the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth or a licensed corporation at the date of the injury is increased, or would have been increased if the employee had continued in that employment, because of:
(a)the attainment by the employee of a particular age;
(b)the completion by the employee of a particular period of service; or
(c)the receipt by the employee of an increase in salary, wages or pay by way of an increment in a range of salary, wages or pay applicable to the employee or to his or her office, position or appointment;
the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased by the same percentage as the percentage by which that minimum amount per week is increased, or would have been increased, as the case may be.
(7) Subject to this section, if:
(a)an employee continues to be employed by the Commonwealth or a licensed corporation after the date of an injury; and
(b)the minimum amount per week payable to the employee in respect of that employment is increased because of the promotion of the employee;
the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased by the same percentage as the percentage by which that minimum amount per week is increased.
…
(9)The normal weekly earnings of an employee before the date of the employee’s injury, as calculated under the preceding subsections, must, while the employee continues to be employed by the Commonwealth or a licensed corporation, be increased or reduced by the relevant percentage.
(9A)For the purposes of subsection (9), relevant percentage means the same percentage as the percentage of increase or reduction in the minimum amount per week payable in respect of employees included in a class of employees of which the employee was a member at the date of the injury 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, order, determination or industrial agreement or the doing of any other act or thing, under such a law.
…
(10)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.”
In s 4(1) of the SRC Act the phrase “relevant period” is defined to mean “the period calculated under section 9”. Section 9 of the SRC Act relevantly provides:
“ 9 Relevant period
(1)For the purposes of calculating the normal weekly earnings of an employee before an injury, a reference in section 8 to the relevant period is, subject to this section, a reference to the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the Commonwealth or a licensed corporation.
…”
Relevant Agreed Facts
The following relevant facts are not in dispute and are found by the Tribunal on the basis of the evidence before it:
·the applicant commenced employment with the AFP on 28 February 2011 as a trainee in the Protective Service Officer Program (“PSOP”) in Canberra at AFP Band 2.1 with a commencing salary of $45,844;
·on or about 11 March 2011 the applicant injured her right shoulder while participating in the PSOP;
·the applicant obtained physiotherapy treatment for her right shoulder condition but she did not take any time off work during the PSOP;
·following her successful completion of the 13-week PSOP which commenced on 28 February 2011, the applicant was deployed to Geraldton at AFP Band 2.1 with a salary of $45,844, and performed operational duties;
·on 16 August 2011 the applicant underwent surgery (namely, arthroscopic assisted open cuff repair using four anchors) to her right shoulder;
·pursuant to the Australian Federal Police Collective Agreement 2007 – 2011 which set out the terms and conditions under which the applicant was employed by the AFP:
- a composite allowance is paid to AFP employees who work “Operations working patterns” or “Rostered Operations working patterns”;
- a deployment assistance allowance (“DAA”) is paid to AFP employees who are deployed to specified high cost areas and/or areas involving difficulties attracting or retaining employees;
- AFP employees remain on the base salary until 12 months’ service has elapsed before receiving an increase in the base salary;
- AFP employees may be required to undertake night shift work as part of their rostered duties;
- AFP employees may be “directed to work reasonable additional hours in excess of their rostered shift hours”, in which event “they will be paid the overtime rate”;
·after 11 March 2011 (the accepted date of the compensable injury), the applicant performed overtime and night shift work at Geraldton – more specifically, she performed 17 night shifts in the period from 6 June 2011 to 14 August 2011;
·the applicant did not perform any further night shifts after 14 August 2011;
·had the applicant not sustained the compensable injury, she would have worked 19 night shifts over a 12-week cycle;
·in calculating the amount of compensation payable to the applicant in accordance with s 19 of the SRC Act for the period from 14 August 2011 to 28 March 2012, the respondent calculated the applicant’s NWE on the basis of her base salary for the period of the PSOP, and also a composite allowance of 20% and a DAA from the commencement of her operational duties at Geraldton;
·the respondent’s abovementioned calculation of the applicant’s NWE did not include any night shift payments or overtime rates.
The Applicant’s Statement
In Part II of the applicant’s Statement of Facts, Issues and Contentions, she stated as follows:
“ Prior to submitting an application for the position [with the AFP] I made inquiries in regards to the expected salary once operational as I was aware that during the training at the AFP College the salary was significantly low. I was advised by current serving employees that once operational I would receive a number of different allowances, including nightshift penalties, and that there was regular overtime available, which increased your income substantially. I was also advised that the AFP was very close to signing a new Collective Agreement, which included a pay increase. I had just purchased a house which I was planning to do some major renovations to so I needed to know how much I could earn if I was successful with my application. My plan was to earn as much as I possibly could so that I could pay for all the renovations that were required on my newly purchased house. Therefore, to do this, it was my intention to work as many overtime shifts, perform higher duties whenever possible and apply for as many overseas deployments.” (part of Exhibit A1)
The issue
The issue for the Tribunal’s determination is whether, for the purpose of calculating the amount of compensation for incapacity for work which was payable to the applicant, in accordance with s 19 of the SRC Act, for the period from 14 August 2011 to 28 March 2012, night shift payments and/or overtime rates are to be included in the calculation of the applicant’s NWE under s 8 of the SRC Act.
Analysis
The NWE of the applicant, for the purpose of calculating the amount of compensation for incapacity for work which was payable to her, in accordance with s 19 of the SRC Act, for the period from 14 August 2011 to 28 March 2012, is to be calculated under s 8 of the SRC Act.
Pursuant to s 9(1) of the SRC Act, for the purposes of calculating the applicant’s NWE before the compensable injury under s 8 of the SRC Act, a reference in s 8 to the “relevant period” is a reference to “the latest period of 2 weeks before the date of the [compensable] injury during which the [applicant] was continuously employed by the [AFP]”. It is common ground that the applicant was “continuously employed by the [AFP]”, within the meaning of s 9(1) of the SRC Act, in the period from 28 February 2011 (being the date of commencement of that employment) to 10 March 2011 (being the day before the date of the compensable injury). Accordingly, the “relevant period”, within the meaning of s 8 of the SRC Act, in the applicant’s case is the period 25 February 2011 to 10 March 2011 during which she was continuously employed by the AFP from 28 February 2011 to 10 March 2011.
Section 8(4) of the SRC Act applies “where, because of the shortness of the relevant period, it is impracticable to calculate the normal weekly earnings of an employee before an injury under subsection (1) or (2)”. In the applicant’s case, there is no fact or circumstance, including “the shortness of the relevant period”, which would make it “impracticable” to calculate her NWE before the compensable injury under s 8(1) or s 8(2) of the SRC Act. Accordingly, s 8(4) of the SRC Act is inapplicable in the applicant’s case.
Likewise, s 8(5) of the SRC Act is, in the Tribunal’s opinion, inapplicable in the applicant’s case because there is no fact or circumstance, including “the shortness of the relevant period”, whereby the applicant’s NWE, as calculated in relation to the relevant period under s 8(1) or s 8(2) of the SRC Act, “would not fairly represent the weekly rate at which [she] was being paid in respect of [her] employment before the [compensable] injury” (emphasis added).
Under s 8(1) of the SRC Act, the formula whereby an employee’s NWE is calculated includes “the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, …” (emphasis added). It is common ground that the applicant did not work any night shifts in her employment with the AFP during the period from 28 February 2011 to 10 March 2011. Accordingly, no night shift payments were made to her in respect of that employment during that period. It follows that the calculation of the applicant’s NWE under s 8(1) of the SRC Act cannot include night shift payments.
Section 8(2) of the SRC Act provides for the addition of “overtime” in the calculation of an employee’s NWE. However, the formula whereby an amount for overtime (which is to be added to the NWE amount calculated under s 8(1)) is calculated refers only to “the average number of hours of overtime worked in each week by the employee in his or her employment, during the relevant period” and “the employee’s average hourly overtime rate of pay during that period” (emphasis added). It is common ground that the applicant did not work any overtime in her employment with the AFP during the period from 28 February 2011 to 10 March 2011. It follows that there is no “additional amount calculated in relation to the relevant period” under s 8(2) which is to be added to the applicant’s NWE as calculated in accordance with s 8(1).
Section 8(7) of the SRC Act is applicable only where the minimum amount per week payable to an employee is increased because of the “promotion” of the employee. In the applicant’s case, there is no evidence before the Tribunal that she has received a “promotion” in her AFP employment. Accordingly, s 8(7) is presently inapplicable in the applicant’s case. In any event, nightshift payments and overtime rates are not the kinds of pay increases contemplated by s 8(7).
Finally, the Tribunal turns to consider the applicability of s 8(6) of the SRC Act in the applicant’s case. Section 8(6) will be applicable in the applicant’s case only if the minimum amount per week payable to her in respect of her AFP employment as at the date of the compensable injury is increased because of:
“ (a) the attainment by [her] of a particular age;
(b) the completion by [her] of a particular period of service; or
(c)the receipt by [her] of an increase in salary, wages or pay by way of an increment in a range of salary, wages or pay applicable to [her] or to … her office, position or appointment”.
In the applicant’s case, her salary as at the date of the compensable injury has not since been increased by reason of her attaining a particular age; nor has it since been increased by reason of her completing a “particular period of service” (as previously indicated, her salary did not increase upon her completion of her 13-week training period). Accordingly, neither para (a) nor para (b) of s 8(6) of the SRC Act is satisfied in her case.
As regards para (c) of s 8(6) of the SRC Act, the critical question is whether the nightshift payments and/or overtime rates, which the applicant has received in the course of her AFP employment in Geraldton from June 2011, were received by her “by way of an increment in a range of salary, wages or pay applicable to [her] or to … her office, position or appointment”.
In McDonald v Department of Defence [1999] FCA 882 the Federal Court of Australia (Sundberg J) said (at [12]):
“ …
Section 8(6)(c) [of the SRC Act] requires the respondent to take into account pay increases resulting from ‘the receipt by the employee of an increase in salary, wages or pay by way of an increment in a range of salary, wages or pay applicable to the employee or to his or her office, position or appointment’. The increase must be an increment in a range applicable to the employee specifically or to the position held. The section contemplates the existence of a pay range which the employee may ‘work up through’ over time. The increase must be achieved within that position. A pay increase resulting from a change in position would not be ‘by way of an increment in a range’. The opening words of s 8(6), which require increases in ‘the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth at the date of the injury’ to be taken into account, support this view. …” (original emphasis).
In Comcare v Thompson (2000) 100 FCR 375 the Federal Court (Finn J) agreed with Sundberg J’s abovementioned interpretation of s 8(6)(c) of the SRC Act (at 381 [35]).
Applying the interpretation of s 8(6)(c) of the SRC Act explained in McDonald and Thompson, the Tribunal finds that neither the nightshift payments nor the overtime rates received by the applicant in the course of her AFP employment in Geraldton were received by her “by way of an increment in a range of salary, wages, or pay applicable to [her] or to … her office, position or appointment”, within the meaning of s 8(6)(c). Accordingly, para (c) of s 8(6) of the SRC Act is likewise not satisfied in the applicant’s case.
Section 8(6) of the SRC Act, therefore, does not apply in the applicant’s case so as to increase the amount of her NWE before the compensable injury by reference to either the nightshift payments or the overtime rates which she received in the course of her AFP employment in Geraldton.
conclusion
The Tribunal concludes, therefore, that, for the purpose of calculating the amount of compensation for incapacity for work which was payable to the applicant in accordance with s 19 of the SRC Act for the period from 14 August 2011 to 28 March 2012, neither nightshift payments nor overtime rates are to be included in the calculation of the applicant’s NWE under s 8 of the SRC Act.
The applicant sought to rest her case on the following dictum of Heerey J in Bortolazzo v Comcare (1997) 75 FCR 385 at 388:
“… The underlying policy is that an injured employee should not be worse off during the period of incapacity as a result of work-related injury. …”
The applicant submitted that the non-inclusion of nightshift payments and overtime rates in the calculation of her NWE under s 8 of the SRC Act would render her financially worse off as a result of the compensable injury, adding that, if she had not sustained that injury, she would have gone on to earn an extra $30,000–$40,000 pa. Accordingly, she submitted that, so as to prevent, or at least ameliorate, that result, the nightshift payments and overtime rates she subsequently received in the course of her AFP employment in Geraldton should be factored into the calculation of her NWE for the purpose of calculating the amount of compensation for incapacity for work payable to her in accordance with s 19 of the SRC Act. In that connection she submitted that the “relevant period”, for the purpose of calculating her NWE under s 8 of the SRC Act, should be regarded as the period of her AFP employment in Geraldton from June 2011 during which she received the abovementioned nightshift payments and overtime rates.
The Tribunal notes that the above-quoted observation of Heerey J in Bortolazzo was made specifically in relation to s 8(10) of the SRC Act (which, it is common ground, is inapplicable in the applicant’s case). The Tribunal also notes that, in the immediately preceding paragraph of his judgment in Bortolazzo, Heerey J said (at 388):
“ I accept the submission of counsel for the applicants that the Act is social legislation which ought to be construed, in the event of ambiguity, liberally in favour of injured employees … But a liberal interpretation is one thing, rewriting the statute is another.”
In the Tribunal’s opinion there is no ambiguity in any of the provisions of s 8 of the SRC Act. Furthermore, the applicant’s abovementioned submission regarding the meaning of the phrase “relevant period”, for the purpose of calculating her NWE under s 8 of the SRC Act, is contrary to s 9(1) of the SRC Act (which unambiguously provides that that phrase refers to the period of 2 weeks immediately before the relevant injury). Acceptance of that submission, therefore, would effectively involve an impermissible rewriting of s 9(1).
It is most unfortunate for the applicant that she sustained the compensable injury in the course of a training period during which she was in receipt of only a base salary and had not yet commenced to receive the nightshift payments and overtime rates which she fully expected subsequently to receive, and did subsequently receive. The unfortunate consequence of the timing of the compensable injury is that the calculation of the applicant’s NWE, for the purpose of calculating the amount of compensation for incapacity for work payable to her in accordance with s 19 of the SRC Act, is made in accordance with s 8(1) of that Act and does not include any nightshift payment amounts or overtime rates which were received by her after she sustained the compensable injury.
Decision
For the above reasons the decision under review is affirmed.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop. ........[sgd D Brodie].................................
Administrative Assistant
Dated 9 August 2013
Date of hearing 24 July 2013 Representative of the Applicant In person (unrepresented) Counsel for the Respondent Mr B Dube Solicitor for the Respondent Australian Government Solicitor
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