Beth Brady and Comcare

Case [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

  1. 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.

  2. 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”).

  3. 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.

  4. 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.

  5. On 28 March 2012 a delegate of the respondent made a reviewable decision under s 62 of the SRC Act affirming those determinations.

  6. The applicant has applied to the Tribunal for a review of the reviewable decision of 28 March 2012.

    The evidence

  7. 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…

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AGLC
Beth Brady and Comcare [2013] AATA 559
Case
[2013] AATA 559
Decision Date

CaseChat Overview and Summary

Beth Brady sought a review of a decision by Comcare regarding the calculation of her compensation for an injury that resulted in incapacity for work. The dispute centred on whether nightshift payments and overtime rates received by Ms Brady after her injury should be included in the calculation of her normal weekly earnings (NWE) for the purposes of determining her compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The matter was heard by the Administrative Appeals Tribunal (AAT). The primary legal issue before the Tribunal was whether Section 8(6) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) applied to increase the amount of Ms Brady's NWE by reference to the nightshift payments and overtime rates she received post-injury. Ms Brady argued that excluding these payments from her NWE calculation would make her financially worse off than she would have been had she not sustained the injury, and thus, the payments should be included in the NWE calculation. The Tribunal considered the relevant statutory provisions and Ms Brady's submissions, particularly her reliance on a previous judgment by Heerey J in Bortolazzo v Comcare (1997) 75 FCR 385. The Tribunal found that there was no ambiguity in the statutory provisions and that Ms Brady's interpretation of the "relevant period" for NWE calculation was inconsistent with the Act. Therefore, the Tribunal concluded that Section 8(6) did not apply to increase Ms Brady's NWE by reference to the nightshift payments and overtime rates. Consequently, neither nightshift payments nor overtime rates were to be included in the calculation of Ms Brady's NWE under Section 8 of the Act for the purpose of calculating her compensation for incapacity for work.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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) +Awhere: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; andA 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 ORwhere: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; andOR 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.”

Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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