Blade and Comcare

[2001] AATA 291

DECISION AND REASONS FOR DECISION [2001] AATA 291

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/23

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      WILLIAM BLADE  
  Applicant
           And    COMCARE  
  Respondent

DECISION

Tribunal       Senior Member M J Sassella       

Date11 April 2001

PlaceSydney

Decision      The Tribunal affirms the decision under review.

[Sgd] M J Sassella
  Senior Member
CATCHWORDS
Workers' Compensation - compensation payments - incapacity payment rate calculation – higher duties – refusal to adjust the rate of payment - calculation of normal weekly earnings – normal weekly earnings applied to compensation payments - overtime excluded from calculations regarding the normal weekly earnings – substantive level – substantive promotion - long-term acting arrangement - an additional amount reflecting the average higher duties

Safety, Rehabilitation and Compensation Act 1998, ss 8, 9, 19(2) 123

Re Langford and Comcare; Re Maylor and Comcare (1994) 35 ALD 704
Re Colson and Comcare (1996) 42 ALD 786
Re Watson and Comcare (AAT 12094, 6 August 1997)
Re Davies and Comcare (AAT 9637, 1 August 1994)
Bortolazzo v Comcare (1997) 75 FCR 385
Re Jefferts and Comcare (1996) 24 AAR 10

REASONS FOR DECISION

11 April 2001 Senior Member M J Sassella                   

History of application

1. Mr William Henry Blade is 62 years of age.  He has been receiving compensation payments since 1970.  He ceased work for the employing agency on 16 August 1985. 

2. On 24 September 1999 the Respondent wrote to the Applicant notifying him that his incapacity payment rate had been adjusted so that it was to be calculated by reference to the amount payable to a meat inspector grade 2 working for the Australian Quarantine and Inspection Service (AQIS) rather than a rate payable to a meat inspector employed by the NSW Meat Industry Authority (T255).  In the same notice the Respondent refused to adjust the rate of payment so as to include higher duties which were paid to Mr Blade when he was at work.  AQIS had advised that Mr Blade's higher duties had been only temporary and it was unlikely he would have performed them indefinitely.

3. That determination was amended in a non-material way on 29 September 1999 (T256).  On 6 October 1999 the Applicant requested that the Respondent reconsider its determination on the bases that the calculation of normal weekly earnings (NWE) did not fairly represent his overall annual salary and did not take account of his overall level of service toward the end of his 25 years of service for the Commonwealth. When he resigned from AQIS he was the third most senior officer of the 24 grade 2 officers in the Sydney metropolitan region.  He was frequently called on to act as a grade 3 or grade 4 officer.  Recruitment to grade 3 or grade 4 occurred from the most senior ranks of the grade 2 group.  In his final 18 months with AQIS the Applicant served as a grade 2 for 9 ½ months; as a grade 4 for seven months and as a grade 3 for 1 ½ months.  He submitted that the advice to the Respondent from AQIS was misleading.  AQIS had said that there was no indication that Mr Blade would have been likely to perform higher duties indefinitely.  In fact, said the Applicant, in the meat inspection service there was never any such thing as performing higher duties indefinitely.  He was periodically selected to perform higher duties for an indefinite period.  Toward the end of his service, Mr Blade said, he was increasingly called on to perform higher duties and the indications were that this would increasingly be so had he remained at work.  He sought that a grade 4 pay rate be adopted as the basis for the NWE calculation.

4. On 8 November 1999 the Respondent affirmed the primary decision (T263).  The reasons were essentially:

• At the time of his resignation Mr Blade was substantively a meat inspector grade 2.

• With the implementation of a certified agreement effective from 13 November 1997, public service meat inspectors at Mr Blade's level received a pay rise of nearly $7,000 in lieu of overtime and certain other allowances.  The salary level rose again on 24 June 1999.

• The Applicant's file did not indicate that he had worked for anything other than temporary periods of higher duties.  There was no indication that he would have been likely to perform higher duties indefinitely.

• The Applicant's compensation payments commenced under the Compensation (Commonwealth Government Employees) Act 1971, which was replaced by the Safety, Rehabilitation and Compensation Act 1988 (the Act). Under s 123 of the Act the Applicant is a "former employee". His entitlements are those of a current employee as at 1 December 1988, the date of commencement of the Act.

• Under s 8(9) of the Act there had been a "making, alteration or operation of an award, order, determination or industrial agreement, or of the doing of any other act or thing, under such a law". This had the effect that overtime was to be excluded from calculations regarding the Applicant's NWE.

1. On 3 January 2000 the Applicant lodged an application for review with the Tribunal.
   Relevant legislation

2. The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and in particular sections 8, 9, 19(2) and 123:

   "8. (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.
   (3) Where an employee was, at the date of the injury, employed by the Commonwealth or a licensed corporation in part-time employment or unpaid employment, any earnings of the employee from any other employment shall, for the purposes of this section, be treated as earnings of the employee from his or her employment by the Commonwealth or the licensed corporation.
   (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.
   (8) Subject to this section, where:
     (a) the employment of an employee is of a kind referred to in subsection 5 (4) or (6) or subsection (3) of this section; and
     (b) the employee is not receiving earnings from any other employment at the date of the injury;
   the normal weekly earnings of the employee before the injury shall be an amount determined by Comcare to be the amount per week that the employee would have been able to earn at the date of the injury (including any amount in respect of overtime worked on a regular basis) if he or she had engaged in suitable paid employment.
   (9) If 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 is increased or reduced on or after that date 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 of the doing of any other act or thing, under such a law;
   the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased or reduced by the same percentage as the percentage by which that minimum amount was so increased or reduced, as the case may be.
   (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.

   Relevant period
   9. (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.
   (2) Subject to subsection (3), if, during the period referred to in subsection (1), the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth or a licensed corporation was varied 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;
   any part of that period that occurred before the variation, or last variation, took place shall be disregarded for the purposes of calculating the relevant period.
   (3) Where in any case the application of subsection (2) would require that a period be disregarded for the purposes of calculating the relevant period in relation to an employee, and as a result of disregarding that period:
     (a) it would be impracticable to calculate under section 8 the normal weekly earnings of the employee before an injury; or
     (b) the normal weekly earnings as so calculated would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment by the Commonwealth or a licensed corporation before the injury;
   subsection (2) shall not apply in that case, but the normal weekly earnings of the employee during that period shall be taken to be the amount that would have been his or her normal weekly earnings during that period if the variation had taken effect at the beginning of that period.
   (4) If, during any part of the period calculated under the preceding subsections, the employee's earnings were reduced, or the employee did not receive any earnings, because of absence from his or her employment for any reason, that part of that period shall be disregarded for the purposes of calculating the relevant period."

   "Compensation for injuries resulting in incapacity
   19.
   (1)…
   (2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula:
     NWE  -  AE
   where:
     NWE is the amount of the employee's normal weekly earnings; and
     AE is the amount per week (if any) that the employee is able to earn in suitable employment.
   …"

   "Interpretation
   123. In this Part:
   "former employee" means a person who, immediately before the commencing day, was receiving weekly payments of compensation under the 1971 Act in respect of an injury resulting in an incapacity and had ceased to be an employee within the meaning of that Act before that day; …

Evidence

1. While the Tribunal has reviewed all of the Section 37 Statement and T documents it has found it necessary to make reference to only a limited number of the documents.  Many relate to the Applicant's injury and the administration of his compensation payments.  Only a few refer to the issues raised in the appeal.  The following material was taken into evidence at the hearing in addition to the Section 37 Statement (Exhibit TD1):
   List of questions asked by William Blade of AQIS, undated    Exhibit A1A  
   List of answers from AQIS in response to questions asked by William Blade, undated     Exhibit A2A           
   Statement of Peter Connell, undated      Exhibit A2     
   Statement of Robert Hair dated 13 April 2000    Exhibit R1     
   M2459 – Meat Program Agreement 1999          Exhibit R2     

1. At the hearing Mr Blade was represented by Mr John Hatzistergos and the Respondent by Ms Christine Adamson, both of counsel.

2. Mr Blade gave oral evidence.  He commenced with AQIS on 1 May 1960.  He was promoted to the level of meat inspector grade 2 in 1977.  When he left AQIS he was a meat inspector grade 2 but had been acting as a grade 3 up to a couple of weeks before.  He referred to the list of his periods on higher duties at T266.  Mr Blade called in aid a diary he had kept faithfully and meticulously, it would appear to the Tribunal.  T266, as supplemented by Mr Blade's diary, indicates the following higher duties:
   Grade 4 level, or equivalent (classification descriptions changed over time)

• A total of more than 12 months between 24 May 1971 and 11 June 1976 as acting inspector in charge of works at Wingham Abattoirs.

• A total of five weeks between 1 December 1980 and 2 January 1981 at acting inspector in charge of works Yallah Abattoirs.  This may more correctly be a grade 3 level position.

• A total of seven weeks, three days between 20 June 1983 and 27 July 1983 and between 22 April 1985 and 3 May 1985 as acting inspector in charge of works at Homebush Abattoirs.

• Three days at Metro City Runs as of 11 January 1984.

• One day at Homebush on 24 January 1984.

• One month at Metro City Runs as of 30 April 1984.

• One week at Metro City Runs as of 24 May 1984.

• One week at Metro City Runs as of 4 June 1984.

• One week at Metro City Runs as of 18 June 1984.

• One week at Metro City Runs as of 25 June 1984.

• One week at Metro City Runs as of 9 July 1984.

• One week at Metro City Runs as of 16 July 1984.

• One and a half weeks from 13 May 1985 involving City Runs and Homebush.

Grade 3 level

• One day, 18 November 1977, at Homebush.

• One day, 1 March 1978, at Homebush.

• Two days from 3 April 1978 at Homebush.

• Three weeks from 3 January 1985 at Homebush.

• One day, 24 April 1984 at "Game Establishment".

• One week from 17 December 1984 at Game Establishment.

• An uncertain period from 27 December 1984 at Homebush.

• Two days from 6 May 1985 at Homebush.

• One week from 15 July 1985 as a training officer.

The differences between the duties at the three levels are:
Grade 2

Team leader, officer in charge of the slaughter floor, base level shipping, officer in charge of processing plant, loading facilities.

Grade 3

Training, game inspection, management in charge.

Grade 4

Officer in charge of abattoir, city area supervisor, shipping, airport duty.

The Applicant always accepted any higher duties offered.  He never lodged a complaint and was never counselled.

Legal arguments

1. Mr Hatzistergos, for the Applicant referred to Re Langford and Comcare; Re Maylor and Comcare (1994) 35 ALD 704. In this case the applicants at the time of injury were rostered for shift duty which attracted overtime and penalty rates. While on compensation leave the applicants were told by their employer that they had been transferred to day shift which ordinarily attracted no overtime or penalty rates. This had the effect of reducing their NWE as used in calculating their compensation payments. They were further told that their previous shift had been abolished. Evidence was produced to show that other workers were working the shift previously worked by the applicants. The Tribunal saw a "strong inference … that the transfer of Mesdames Langford and Maylor to the 'day staff' was a deliberate ploy by the Civil Administration at ADFA to reduce the cost of employees absent on workers compensation" (paragraph 12). At paragraph 18 the Tribunal said:

   "In this matter, the workers compensation payable to both Applicants is to be assessed as against what they could have expected to earn had they not been injured, ie, the Applicants' legitimate expectations.  This means that their remuneration for workers compensation purposes is to be assessed as if they were carrying out that shift, the equivalent in the revised arrangements to that they had been carrying out immediately before they were injured.  It most certainly does mean that they are not to be assessed at day shift without penalty rates."

2. Counsel referred also to Re Colson and Comcare (1996) 42 ALD 786. The applicant was on compensation leave from the Department of Social Security ("DSS") and was being paid compensation at a rate based on classification as an administrative service officer ("ASO") class 3. Her substantive level was ASO class 1 ("ASO1") but she had been acting as an ASO3 continuously since July 1989. She went off work in November 1993. She returned on a graduated return to work program in February 1994. In April 1994 her home office in the DSS network conducted an order of merit process with the result that the applicant was ranked seventh. In August the office restructured and cancelled all acting duties. All persons on higher duties reverted to their substantive levels. It was as of that time that the applicant's compensation payments were reduced. Her NWE was from that date onwards based on ASO1 not ASO3 pay rates. A union organiser gave evidence that the restructure was required because the applicant's home office was overspending and had a large deficit. That deficit had been cleared within a year. He gave evidence that DSS had a large number of staff acting on higher duties generally and that there were good opportunities for a mobile staff member to obtain higher duties.

1. The Tribunal accepted this evidence and found that, had the applicant not been incapacitated for work, she would have had a legitimate expectation of continuing to act at ASO3 level.  She had acted continuously as an ASO3 before her injury and DSS had a large number of persons engaged in acting positions and it had a good ability to maintain higher duties. 

2. In Re Watson and Comcare (AAT 12094, 6 August 1997) the Tribunal considered the case of an employee who had been promoted substantively to the top level of the clerical stream in the Australian Security Intelligence Organisation ("ASIO") and who had then been given higher duties in the better paid intelligence officer stream.  She had acted as an intelligence officer for a considerable period, to the extent that she was on the seventh increment of salary.  Immediately preceding her departure from ASIO the applicant had acted as an intelligence officer for almost all of the previous two and a half years, there being a three month break in about the middle of the period.  The Tribunal held that NWE were to be calculated with reference to her salary as an intelligence officer, not to the lower salary she was due in her substantive position.  The issue is not employment classification.  It is the amount per week the employee would have earned or received had she not been incapacitated. 

3. In Re Davies and Comcare (AAT 9637, 1 August 1994) the employee was a substantive ASO3 who had been acting as an ASO4 and sometimes as an ASO5 (more senior positions) in the 12 months before he ceased work.  There was evidence that such a long-term acting arrangement would not be disturbed in the event that an order of merit was freshly established in the office.  The Tribunal held that his compensation payments were to be paid at a rate referable to his having been paid at ASO4 pay rates when injured.

4. Mr Hatzistergos said that, had the Applicant not ceased work in 1985, higher duties would have continued to be available to the Applicant.  He referred to Exhibit A1 which was in two parts, (a) being a series of questions to an AQIS representative, and (b) being the answers.  The items of relevance in the answers are:

• Throughout his period of service Mr Blade's conduct, diligence and efficiency were satisfactory.

• For higher duties selection, if the period were less than a month the senior efficient officer was selected.  For periods longer than a month the officer selected was the most efficient officer.  This system continued to operate for at least the first six months after Mr Blade resigned.

• The system changed on 14 June 1987 to de-emphasise seniority in filling acting positions and to promote merit selection, especially for vacancies of three months or longer.

• AQIS could not say where Mr Blade ranked in seniority amongst the existing grade 2 inspectors when he resigned.

• AQIS cannot confirm Mr Blade's higher duties record from 1981 to 1985 but accepts that Mr Blade's recollections are acceptable.

• "It is probable that higher duty opportunities would have continued in Sydney for some time after Mr Blade's resignation.  However, these would have diminished with the passage of time with the result that more people would have been competing for fewer jobs on merit."  AQIS therefore disagrees that Mr Blade's opportunities for higher duties would have increased had he worked longer.  He would have had to compete on merit with more co-workers for fewer opportunities.

• AQIS is non-committal as to whether other grade 2 inspectors who worked with Mr Blade increasingly carried out acting duties as they rose in rank after Mr Blade resigned.

• AQIS agrees that two other named inspectors who were junior to Mr Blade are now grade 3 officers but stresses that they achieved promotion on merit not seniority.

1. Mr Hatzistergos referred also to Mr Blade's work record in Exhibit A2.  Exhibit A2 is an undated statement by Peter Connell. 

• Mr Connell started with AQIS in about 1954 as a grade 1 meat inspector.  He resigned in 1969, returned in 1971 as a grade 4 meat inspector, and finished off in 1984.

• He met Mr Blade late in the 1950s when both were grade 1 inspectors.  Later, Mr Blade worked under Mr Connell's supervision. 

• He provides a list of employees at AQIS all of whom have less experience than Mr Blade and they are at grade 4, 5 or 6.  He states his belief that Mr Blade would have reached the position of at least a grade 5.

1. Mr Hatzistergos referred to Exhibit R1, a statement by Robert Hair dated 13 April 2000.  In his statement Mr Hair says, relevantly, that:

• He is AQIS business manager in NSW.

• The Applicant resigned from AQIS effective from 16 August 1985. 

• Since 1985 AQIS has undergone considerable downsizing and structural changes. 

• In the mid-1980s AQIS employed about 30 grade 2 meat inspectors, eight grade 3s and five grade 4s in the Sydney metropolitan area.  At the time of writing in Sydney AQIS had seven grade 2 positions, three grade 3 positions and one grade 4 position in Sydney.  Full-time employees fill some positions.  Contractors fill others.  There is a grade 2 position at Gosford.  Only one grade 2 officer is performing higher duties and that is at grade 3 level.  That grade 3 level position is likely to be abolished.

• Most of Mr Blade's higher duties were for short periods ranging from one day to one month when others were on leave.  Current policy is not to pay higher duties allowance for periods of less than a week.  Higher duties are not available for covering a position when an officer goes on holiday.  Others at his or her level pick up the additional work.

1. Mr Hatzistergos observed that Mr Hair did not say that Mr Blade would not have continued to receive higher duties.  He could have been the grade 2 currently acting as a grade 3 in Sydney.  There is no basis provided for Mr Hair's thought that the grade 3 position occupied by a grade 2 inspector will likely be abolished.

2. Ms Adamson, for the Respondent, objected that the Applicant had had ample opportunity to raise questions about Mr Hair's statement before and had not done so.  The Applicant could have required Mr Hair for cross-examination but had not done so. 

3. Ms Adamson then addressed the authorities cited earlier.  She said that they were irrelevant.  They addressed issues that do not arise.  In the Langford case (supra) the evidence was that the shift from which the employer had notionally removed the applicants did in fact still exist, contrary to advice given the applicants.  This was characterised as a deliberate management ploy to minimise compensation payments. 

4. In the instant case T266 shows that the Applicant was put into positions to act when others were on holiday, training and the like.  Higher duties on the basis of such absences are no longer given.

5. The Colson case (supra) can be distinguished because of the piecemeal nature of the Applicant's access to higher duties.  In Colson the applicant had enjoyed continuity in acting.  In Watson (supra) the applicant attained acting duties as an intelligence officer and stayed in that role after her injury.  She had a clear entitlement. 

6. Ms Adamson referred to Bortolazzo v Comcare (1997) 75 FCR 385 in which the NWE applied to compensation payments being made to the appellants was reduced to remove an allowance for shift penalties. This was on the basis that after March 1994 they would not have been paid penalties above their base salaries because the Army privatised Army messes. The applicants had worked as catering attendants at the Army mess at Puckapunyal. The Tribunal had upheld this action by Comcare. Heerey J dismissed the appellants' appeal. The Court considered that to retain the allowance for shift penalties would bring about the result that the appellants would receive more in compensation payments than they would have done had they remained as employees. This would run counter to s 8(10)(a) of the Act. Ms Adamson submitted that Mr Hair's statement in Exhibit R1 showed that Mr Blade would be better off now on compensation payments if he is paid higher duties than he would likely be had he remained working for AQIS.

7. Ms Adamson referred to s 8(1) of the Act. This places a lid on the amount payable by reference to NWE. The employee is metaphorically placed frozen in place on the day his or her employment is discontinued. She referred to Exhibit R2. This is the AQIS certified agreement dated 23 June 1999, reproducing essential terms from an earlier agreement effective on 13 November 1997 (Respondent's statement of facts and contentions, paragraph 10). Clause 28.1 reads:

   "In order to attract higher duties allowance an APS Meat Inspector must perform duties at a higher level for a minimum period of one working week."

1. Ms Adamson suggested that the Applicant was seeking the benefit of an anachronism, ie the payment of an amount reflecting availability of higher duties allowance in respect of periods of less than a week. 

2. Ms Adamson referred to Re Jefferts and Comcare (1996) 24 AAR 10 in which Deputy President Blow decided that the applicant's NWE should be set at ASO1 level, her substantive level, with an additional amount reflecting the average higher duties paid in a year to all ASO1s in the applicant's office. There was evidence that at the time of her injury the applicant was a substantive ASO1 and had been acting as an ASO2, sometimes even higher, for over 18 months. In the two weeks immediately preceding the injury she had acted as an ASO3. There was a letter from the Acting Deputy Commonwealth Statistician dated 13 September 1995 in which he stated that the number of ASO1 staff in the Tasmanian office who had never performed higher duties was zero. For a time the respondent set NWE at ASO2 level and then reduced it to ASO1 when she was transferred to a new section. The Deputy President reiterated that the purpose of his inquiry was to try and ascertain how much the applicant would have earned if not incapacitated for work and how that should be assessed. Some of the Deputy President's reasoning is highly instructive. At pages 16 and 17 he says:

   "Prima facie, an employee's normal weekly earnings are required by s 8 to be calculated by reference to 'the relevant period'.  By virtue of s 9(1), that is a period of two weeks.  However s 8(5) is an ameliorative provision which provides [for use of a different period if that period is unrepresentative]. 

   "Against this background, it is clear that the reference in s 8(1)(a) to 'the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work' is not a reference to the amount that the employee would have earned in a particular week, but a reference to the earnings that the employee would have received over a longer and unspecified period, expressed as an amount per week.  In the absence of any provision as to how long a period should be taken into account, s 72(a) must require Comcare to approach this question on a case-by-case basis, and to consider what the earnings of an employee would have been by reference to whatever period is in accordance with equity, good conscience and the substantial merits of the case.  Whatever period is considered appropriate, the hypothetical period must then be expressed as an amount per week. …

   "It seems most likely that she would have continued to occupy substantive positions at ASO 1 level in various sections of that office over the years, acting in higher duties positions from time to time.  The only sound basis upon which one could assess what she would have earned if not incapacitated is to assume that she would have remained at ASO 1 level in the Tasmanian office, to establish or estimate the average amount paid to ASO 1 officers in that office each financial year by way of higher duties allowances and, in the absence of any evidence suggesting what the applicant would have earned if she had not been incapacitated.  If there were any evidence suggesting that the applicant would have earned more or less than the average by way of higher duties allowances in a particular year, the best that Comcare can do is to estimate what she would have earned by way of higher duties allowances during that particular year, using the actual or estimated figure as a starting point.  I do not have sufficient evidence even to begin to undertake any calculations based on this methodology.  The matter will have to be remitted to the respondent for reconsideration."

1. Ms Adamson distinguished the Jefferts decision (supra) because higher duties allowances were paid in the agency at the time in question.  Indeed, the evidence was that all ASO 1 staff in Tasmania had had access to higher duties. 

2. The Tribunal finds that the following principles can be distilled from the authorities:

3. Where an employee's NWE is reduced because he or she is regarded as having been transferred to a lower position not attracting shift overtime and penalty rates the NWE may need to be restored to the former level if it is shown that the previous shift is still worked by other employees (Langford, Maylor (supra)).

1. Where an employee's NWE is reduced on the basis that higher duties are no longer available, the NWE may need to be restored if it is shown that higher duties remain available in the employee's office, or more generally in the same organisation, or if they become available again after a period (Colson (supra)).

1. Where an employee has enjoyed a lengthy period of continuous acting at a certain level then NWE should be assessed with reference to that level of earnings, not the employee's base salary (Watson, Davies (supra)).

1. Where an employee's NWE has been reduced to remove provision for a penalty payment of a type no longer made to active employees then the reduced NWE figure is unlikely to be disturbed (Bortolazzo (supra)).

1. Where an employee has been paid on the basis of a NWE figure reflecting a higher duties allowance to which the employee had had access before his or her injury, and the employee is transferred for bona fide reasons to a different office where higher duties are less available, it may be appropriate to assess NWE with an allowance for the average annual value of higher duties payable to an employee in that agency or office at his or her substantive level (Jefferts (supra)).

Findings on material questions of fact with reference to the evidence or other material on which the findings are based

1. The Tribunal notes that the date of effect of its decision is to be 24 September 1999, the date of the determination in T255.

2. The Tribunal notes that there is no real dispute between the parties as regards most relevant matters. Thus it is agreed that Mr Blade qualifies for compensation payments in respect of incapacity for work. The only issue is as to the rate of those payments in as much as it is influenced by the measure of Mr Blade's NWE. In that regard ss 8 and 9 of the Act are relevant.

3. Section 8 of the Act dictates how NWE are to be calculated. The formula in s 8(1) involves consideration of average hours worked each week by the employee in the relevant period, the employee's average hourly rate of pay during that period and, most relevantly for the instant case, "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". An additional amount can be factored in "[w]here an employee is required to work overtime on a regular basis" and a formula is provided in s 8(2).

4. The issue in the instant case is whether Mr Blade's NWE should be assessed under s 8(1) with a figure included for higher duties allowance in the factor A in the formula (NH [number of hours] x RP [rate of pay]) + A [amount of allowance].

5. Applying the principles identified above from the decided cases, the Tribunal finds as follows.

6. The Langford and Maylor cases are of limited application because this is not a situation where Mr Blade has been paid for a period on the basis of a more generous NWE only to be told that his payments would reduce because he had been transferred to a location or employment regime attracting fewer allowances.  That was the problem in those cases.  In the present case Mr Blade has been paid on the basis of a NWE that he seeks to have increased by the addition of payment in respect of an allowance.

7. Likewise, the Colson case (supra) seems inapplicable because the applicant's unbroken period of acting, together with the ongoing availability of higher duties in the applicant's workplace in that case are not factors replicated in the present case.

8. Similarly, the Watson (supra) and Davies (supra) cases are distinguishable because the applicants in those cases had enjoyed lengthy periods of acting before being injured.  In the present case the acting was disrupted and disjointed. 

9. The Jefferts case (supra) suggests that, where higher duties have been paid to an employee who is injured, it may be appropriate to assess NWE using base salary plus an allowance for higher duties based on the average availability, over time, of higher duties to all employees at the first employee's substantive level.  The applicability of Jefferts (supra) in the present case is addressed below.

10. The above cases tend to utilise a concept of legitimate expectation on the part of the employee when the Tribunal applies the Act. At base it seems that an employee has a legitimate expectation of continuation of a NWE assessment incorporating an allowance if that allowance has been paid to the employee for a substantial period and it remains an allowance paid by the employer to other employees. The Tribunal will make its findings below on this principle.

11. On the other hand, if an allowance formerly paid to the injured employee has been abolished and is no longer available to employees at the first employee's substantive level, then it may cease to be assessed for the first employee's NWE figure.  This reflects the Bortolazzo decision (supra).

12. In applying these principles to Mr Blade's case the Tribunal notes that the central point, the date of the employee's injury, is 1 April 1970 (T6).  The injury caused problems for about four months but the Applicant returned to work and took occasional time off when ill. 

13. The Tribunal finds that Mr Blade's higher duties record between 1971 and 1985, based on the evidence Mr Blade gave orally and in T 266, can be summarised as follows:

• Total period of time on higher duties:  just over 84 weeks.

• Total period paid as grade 3:  about 7 ½ weeks.

• Total period paid as grade 4:  about 76 ½ weeks.

• Total period of time in question:  about 762 weeks.

• %-age of available time when acting as grade 3 or 4:        11.02%.

1. The Tribunal therefore finds that the Applicant was paid higher duties allowance for about 11% of the period from early 1971 until he resigned in August 1985.

2. When Mr Blade ceased work on 16 August 1985 the Tribunal finds that he was not receiving a higher duties allowance (Applicant's oral evidence and T266).  His final period of acting, at grade 3 level, was for one week from 15 July 1985.

3. The Tribunal further finds that, had Mr Blade remained working for AQIS he would have been offered the opportunity to work on higher duties at about the same rate until June 1987 when, according to Exhibit A1, higher duties involved a merit selection de-emphasising seniority for periods longer than three months.  However, as the evidence indicated, Mr Blade's history of higher duties shows no period of three months of continuous acting at a higher level.  The Tribunal therefore finds that, even after the 1987 changes, the incidence of Mr Blade's acting duty would more probably than not been similar to the period up to his resignation. 

4. The evidence is unclear as to when AQIS reduced its staff positions to the levels prevailing at April 2000 when Mr Hair wrote his statement (Exhibit R1).  However, it is clear that over 15 years the number of staff meat inspectors within AQIS has reduced markedly.  Grade 3 and grade 4 positions, never numerous, had reduced by more than half in the Sydney area.  By April 2000 there were only three grade 3s and one grade 4.  The Tribunal finds that the Applicant's opportunities for attracting higher duties allowance would have reduced progressively from 1987 to a low point in April 2000.  The Tribunal accepts the evidence of AQIS (Exhibit A1) that Mr Blade would have been competing with more employees for reduced periods of higher duties. 

1. There is insufficient direct evidence to make any findings as to how and when the higher duties available reduced.  However, there is an indisputable piece of evidence in the form of the certified agreement (Exhibit R2) that as of 23 June 1999 higher duties for periods of less than a week were no longer payable.  This state of affairs predates the date of the determination under review here.  That was made on 24 September 1999.  It appears also from the Respondent's statement of facts and contentions that an earlier certified agreement contained similar terms effective from 13 November 1997.  In return for the restrictions on higher duties employees were given a higher salary.  The higher salary does flow through to the Applicant's NWE figures.

2. The Tribunal therefore finds that, as at the date of the determination, the access to higher duties of continuing employees at the substantive level of Mr Blade at the time he ceased work had declined to the extent that, on Mr Blade's past record, grade 3 acting would be rare.  Further the Tribunal finds that grade 4 acting would probably be available less frequently as there is only one grade 4 in Sydney.  When available it would be so for too short a period to attract an allowance or, if an allowance was in prospect, the grade 3 inspectors would keenly pursue it.  The Tribunal finds on all this evidence that it is unlikely that Mr Blade would often attract a higher duties allowance if still employed at AQIS as a meat inspector grade 2.

3. In the Tribunal's view, the cases based on legitimate expectation play no role here.  The foundation for a legitimate expectation does not appear in Mr Blade's case.  He had not been on an unbroken period of higher duties before he ceased work.  He had only ever been given higher duties for limited periods as an apparent replacement for others on leave or when vacancies of a short term arose for other reasons.  The Bortolazzo (supra) principle applies as of at least 23 June 1999, and probably 13 November 1997, when higher duties allowances ceased in many circumstances to be payable under the industrial relations system applying at AQIS. This would have been, in the Tribunal's view, an appropriate case for the application of s 8(10)(b) to reduce the NWE had the NWE been set with reference to an allowance for higher duties.

4. For many of the same reasons the Tribunal does not consider this an appropriate case for adopting the Tribunal's approach in the Jefferts case (supra) where an allowance was made for possible higher duties by averaging the higher duties given to all at the applicant's substantive level.  Such an approach would appear to be at odds with other evidence in this case.  Firstly, there is evidence that only limited higher duties remain available in AQIS.  Secondly, the evidence suggests that this is most likely keenly competed for.  Thirdly, the inference is that acting above grade 3 level would probably not be available to a grade 2 meat  inspector, the relevant level at which to consider Mr Blade.  Fourthly, the Tribunal accepts the evidence, which was not challenged, that  others at grade 3 level cover an absence by a grade 3 inspector of less than a week.

5. The Tribunal finds that the evidence from Mr Connell in Exhibit A2 is of limited use.  It suggests perhaps that Mr Blade would have remained competitive in attracting higher duties.  In that it might be taken to suggest that Mr Blade's NWE could be assessed as if he had achieved promotion to a higher substantive position after 1985, the Tribunal considers it not really in point.  In Re Brede and Department of Defence (1994) 33 ALD 669 Deputy President McMahon said in paragraph 18 (at page 673):

   "Variations in normal weekly earnings are made by reference to amounts payable to a class of employees, not to an individual employee.  Thus in the applicant's case, one should look now to the minimum amount per week payable to lieutenant colonels [the applicant's base position] in the Australian regular army to determine the extent by which the normal weekly earnings of the applicant are to be increased or reduced, as a determinant of his compensation component.  The question to be asked is not what would be Mr Brede's normal weekly earnings if (theoretically) he was still serving officer, but rather what are the normal weekly earnings of a person who now holds the position the applicant held at the time of his retirement."

Conclusion

1. For the above reasons the Tribunal has concluded that the Applicant's NWE should be assessed without allowing for higher duties allowance.
   Decision

2. The Tribunal affirms the decision under review. 

   I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.

   Signed:         .....................................................................................
     Associate

   Date of Hearing  19 December 2000
   Date of Decision  11 April 2001
   Counsel for the Applicant  Mr J Hatzistergos

   Counsel for the Respondent  Ms C Adamson