COMPENSATION - Commonwealth employees - overtime no longer available in the work in which employees engaged prior to injury - catering attendants no longer entitled to overtime payments - calculation of applicants' net weekly earnings as if they had not been incapacitated - whether calculations should include overtime - underlying structure, purpose and policy of Safety Rehabilitation and Compensation Act
Safety, Rehabilitation & Compensation Act 1988 (Cth) ss 8,9,14 and 19
re: Bernadette Bortolazzo and Joyce Margaret Saffron v Comcare Australia (No. VG 866 of 1995
Judge: Heerey J Date: 12 June 1997 Place: Melbourne
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No.VG 866 of 1995 GENERAL DIVISION
B E T W E E N:
BERNADETTE BORTOLAZZO and JOYCE MARGARET SAFFRON Applicants - and -
COMCARE AUSTRALIA Respondent
JUDGE: Heerey J
DATE: 12 June 1997
PLACE: Melbourne
MINUTES OF ORDER
The Court orders that:
The appeal is dismissed with costs, including reserved costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No VG 866 of 1995 GENERAL DIVISION
B E T W E E N:
BERNADETTE BORTOLAZZO and JOYCE MARGARET SAFFRON Applicants - and -
COMCARE AUSTRALIA Respondent
JUDGE: Heerey J
DATE: 12 June 1997
PLACE: Melbourne
REASONS FOR JUDGMENT
Constituted by Mrs Joan Dwyer Senior Member, Ms L S Rodopoulos and Mr R C Gillham Members.
These appeals from the Administrative Appeals Tribunal raise a question as to the interpretation of s 8(10)(a) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
Section 14 of the Act imposes a liability on the respondent to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in, amongst other things, incapacity for work. Section 19 provides a mechanism for assessing that compensation. One of the concepts used in that provision is that of the normal weekly earnings (NWE) of the employee. Sections 8 and 9 provide the formulae for determining NWE. It is not necessary to set out these provisions in detail. Suffice it to say that where an employee is required to work overtime on a regular basis, NWE will take into account overtime: s 8(2). Section 8(10)(a) which is at issue in the present case provides as follows:
(10)If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding sub-sections, 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)...
the amount so calculated shall be reduced by the amount of the excess.
Evidence and Findings The applicants…
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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AGLC
Bortolazzo v Comcare [1997] FCA 515
Case
[1997] FCA 515
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, the case of Bortolazzo v Comcare (No. VG 866 of 1995) was heard and decided on 12 June 1997. The applicants, Bernadette Bortolazzo and Joyce Margaret Saffron, appealed against the decision of the Administrative Appeals Tribunal, which had determined their entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The dispute centred around the calculation of normal weekly earnings (NWE) for the purposes of determining compensation payable to the applicants following their injuries and subsequent incapacity for work.
The primary legal issue before the Court was the interpretation of section 8(10)(a) of the Act. This section mandates that if the calculated NWE of an injured employee exceeds the amount the employee would receive if not incapacitated for work, the NWE must be reduced by the excess amount. The applicants argued that their NWE should include overtime payments, which were no longer available due to changes in their employment circumstances post-injury. Conversely, the respondent, Comcare Australia, contended that the NWE should not include overtime payments because such payments were no longer available in the work in which the applicants were engaged following their injuries.
The Court found in favour of Comcare Australia, affirming the Tribunal's decision. The Court held that the statutory language of section 8(10)(a) did not require the inclusion of overtime payments in the calculation of NWE if such payments were no longer available in the work in which the employees were engaged post-injury. The Court emphasised that while the Act should be construed liberally in favour of injured employees, this did not permit the rewriting of the statute to include provisions not explicitly stated. The Court also noted that the underlying policy of the Act was to ensure that an injured employee is not worse off due to their injury, but not to place them in a better position than they would have been had they not been injured. The Court concluded that the applicants, had they not been injured, would have faced a reduction in income due to the cessation of overtime payments, and the Act did not entitle them to better compensation than they would have received in their changed employment circumstances.
The Court dismissed the appeal with costs, including reserved costs, upholding the Tribunal's decision that the applicants' NWE should not include overtime payments, which were no longer available in the work in which they were engaged post-injury.