Bronwyn McGree and and Comcare

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[2014] AATA 613 

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/4687

Re

Bronwyn McGree

APPLICANT

And

Comcare

RESPONDENT

File Number

2013/4688

Re

Helen Songer

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President K Bean
Date 28 August 2014
Place Adelaide

1.In application 2013/4687, the Tribunal determines that Ms McGree did not continue to be employed by the Commonwealth after 8 March 1995. Therefore, for the purpose of determining her entitlement to incapacity payments after that date, her normal weekly earnings must be calculated by reference to subs 8(10)(b) rather than subs 8(10)(a) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act); and

2.In application 2013/4688, the Tribunal also determines that Ms Songer did not continue to be employed by the Commonwealth after 8 March 1995. Therefore, for the purpose of determining her entitlement to incapacity payments after that date, her normal weekly earnings must be calculated by reference to subs 8(10)(b) rather than subs 8(10)(a) of the SRC Act.

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Deputy President K Bean

CATCHWORDS

COMPENSATION – Commonwealth employees – Preliminary issue as to whether applicants continued or ceased to be employed by the Commonwealth for the purposes of subsection 8(10) of the Safety, Rehabilitation and Compensation Act 1988 – Applicants transferred to State employment before being re-appointed to APS – Determination that applicants ceased to be employed by the Commonwealth.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, s 8(10)

CASES

Re West and Comcare (1999) 55 ALD 301

Re Miechel and Military Rehabilitation and Compensation Commission [2014] AATA 508
Breust v Commissioner for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1991) 30 FCR 40
Bortolazzo v Comcare (1997) 75 FCR 385
John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566

Comcare v Simmons (2014) 138 ALD 58

REASONS FOR DECISION

Deputy President K Bean

28 August 2014

  1. The applicants, Ms McGree and Ms Songer, are each in receipt of compensation as a result of injuries they suffered in the course of their employment as nurses at the Repatriation General Hospital Daw Park (RGHDP) in Adelaide during the mid-1990s.

  2. They have also each applied for review of determinations made by Comcare regarding their respective normal weekly earnings (NWE) for the purposes of calculating the incapacity payments payable to each of them under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). As their circumstances and the issues which arise from their applications are similar, the applicants have each requested that their matters be dealt with and heard together.

  3. Although the matters have not yet been the subject of a final hearing, the parties have identified a preliminary issue which they seek to have the Tribunal determine, namely, whether in the period after their respective injuries, the applicants continued to be employed by the Commonwealth pursuant to subs 8(10) of the SRC Act. The answer to this question will affect the applicants’ entitlement to incapacity payments, as subs 8(10) of the SRC Act provides for a person’s NWE (and therefore their entitlement to…

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Details
Case
[2014] AATA 613
Decision Date

CaseChat Overview and Summary

The matter of Bronwyn McGree and Comcare was before the Tribunal to determine whether the applicants continued or ceased to be employed by the Commonwealth for the purposes of subsection 8(10) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). This determination was crucial as it affected the calculation of the applicants' normal weekly earnings (NWE) and, consequently, their entitlement to incapacity payments. The applicants, Bronwyn McGree and another individual (Ms Songer), were transferred from Commonwealth employment to State employment before being re-appointed to the Australian Public Service (APS). The legal issues before the court included whether the applicants' employment with the Commonwealth was continuous despite the transfer and subsequent re-appointment, and if the provisions of the SRC Act applied differently based on this continuity.

The court examined the statutory framework and the agreements between the Commonwealth and the State of South Australia. It noted that the applicants' employment was governed by the Public Service Act 1922 and the South Australian Staffing Agreement, which outlined the transfer of employment and the conditions under which the applicants would become State employees. The court also considered the arguments presented by the parties, including the fact that the applicants' long service leave and sick leave entitlements were treated as continuous. However, the court found that these entitlements did not necessarily indicate continuous employment under the SRC Act. The court concluded that there was a break in the applicants' employment with the Commonwealth, and therefore they did not 'continue to be employed by the Commonwealth' as per subsection 8(10) of the SRC Act.

The Tribunal determined that for the purpose of determining the applicants' entitlement to incapacity payments after 8 March 1995, their NWE must be calculated by reference to subsection 8(10)(b) rather than subsection 8(10)(a) of the SRC Act. This decision was based on the finding that there was a break in their employment, despite the continuity of their long service leave and sick leave entitlements. The court found that the applicants' re-appointment to the APS did not negate the break in their employment for the purposes of the SRC Act. The Tribunal's decision acknowledged that this outcome was less advantageous to the applicants but was consistent with the statutory provisions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Before addressing the preliminary issue more directly, I will first outline the background which is common to both matters, as well as the particular circumstances of each applicant, in so far as they are relevant to the issue before me. I will also outline the applicable statutory framework and relevant authorities before setting out my analysis by reference to the parties’ contentions. Background common to both matters There is no dispute between the parties that prior to 9 March 1995, the RGHDP was owned and operated by the Commonwealth of Australia. However, on 26 November 1994, the Commonwealth and the State of South Australia announced an in principle agreement to transfer the RGHDP into the South Australian Health Care system on 9 March 1995.[1] An arrangement between the Commonwealth Repatriation Commission and the State of South Australia concerning the treatment, care and welfare of persons eligible for treatment under the Veterans’ Entitlements Act 1986 at the RGHDP and other public hospitals in South Australia was signed on 26 November 1994.[2] [1] Exhibits 1B and 2B, S3/29.[2] Exhibits 1B and 2B, S3/29. On 12 December 1994, the Commonwealth and the State of South Australia also signed an agreement concerning offers of employment to be made by the South Australian Health Commission to officers and employees of the Commonwealth Department of Veterans’ Affairs working at the RGHDP, such employment to be at the RGHDP (the South Australian Staffing Agreement). Paragraph 2.4 of that agreement provided as follows:Offers of employment will be made by the State or the Board on behalf of the State before 1 January 1995. Commonwealth RGHDP staff who accept offers of employment will become employees of the State or the Board on and from the date of transfer.[3][3] Exhibits 1B and 2B, S3/31. Paragraph 7 of the agreement provided as follows:7.1The State will ensure that Commonwealth RGHDP staff who accept an offer of employment are covered under State workers compensation legislation as from the date of transfer.7.2The Commonwealth will continue to be financially and administratively liable for any injury or compensable condition relating to ex-Commonwealth RGHDP staff while in the service of the Commonwealth.7.3The State will cooperate with the Commonwealth in the management of cases falling within Clause 7.2 for so long as the ex-Commonwealth RGHDP staff remain in the continuing employment of the State.7.4When recommending to the State the RGHDP staff who are to be made an offer of employment the Commonwealth will not discriminate against injured staff who are undergoing rehabilitation so they can return to full employment provided that there will be a full return to substantive duties within six months of 9 March 1995. Ex-Commonwealth RGHDP staff whose services with the State are not required because of their inability to resume to substantive duties within the timeframe specified will have access to the options available under the ACTU Agreement.[4][4] Exhibits 1B and 2B, S3/34.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows that, as I am satisfied that there was a break in the employment of both Ms Songer and Ms McGree, I have concluded that they did not ‘continue to be employed by the Commonwealth’ after March 1995, for the purposes of subs 8(10) of the SRC Act. Therefore, in my view, their NWE must be calculated by reference to subs 8(10)(b) rather than subs 8(10)(a). I accept that this is less advantageous to them, and is an anomalous result in some respects given the short break in their APS employment and the reasons for this. However, I am satisfied that this is the effect of the legislation in their circumstances.DECISION In application 2013/4687, the Tribunal determines that Ms McGree did not continue to be employed by the Commonwealth after 8 March 1995. Therefore, for the purpose of determining her entitlement to incapacity payments after that date, her normal weekly earnings must be calculated by reference to subs 8(10)(b) rather than subs 8(10)(a) of the SRC Act. In application 2013/4688, the Tribunal determines that Ms Songer did not continue to be employed by the Commonwealth after 8 March 1995. Therefore, for the purpose of determining her entitlement to incapacity payments after that date, her normal weekly earnings must be calculated by reference to subs 8(10)(b) rather than subs 8(10)(a) of the SRC Act.

Ratio Decidendi

Legal Principle Established

Mr Crowe also contended that the calculation of the applicants’ long service leave entitlements “points to the decision-maker(s) having interpreted the period after employment by the SAHC as being continuous with the period before employment by the SAHC” (emphasis in original).[19] In addition, as I have alluded to above, material was filed after the hearing indicating that Ms McGree and Ms Songer were each given the same AGS number upon resumption of their APS employment, and that they were each also credited with sick leave they had previously accrued.[19] Applicants’ response to the respondent’s submissions, received by the Tribunal on 16 June 2014.CONSIDERATION I accept that Ms McGree and Ms Songer were each given the same AGS numbers upon resumption of their APS employment, and that their APS employment was treated as continuous for long service leave purposes. However I also note in respect of this last issue that this is entirely consistent with the Long Service Leave (Commonwealth Employees) Act 1976 as in force at the relevant time. Subsection 11(3)(b) of that Act (which remains relevantly unchanged) specifically provides for breaks in Commonwealth employment consisting of State employment to be disregarded for the purposes of determining long service leave entitlements. It follows that the fact that Ms McGree and Ms Songer’s APS employment was treated as continuous for long service leave purposes does not support an argument that they “continued” to be employed by the Commonwealth. With respect to the applicants’ sick leave entitlements, I also acknowledge that these were apparently transferred from the Commonwealth to the State when they ceased to be APS officers, and then transferred back again upon their re-appointments to the APS. However, I also note that this is exactly what was contemplated by clause 4.7 of the December 1994 agreement between the Commonwealth and the State, which provided for employees to take their entitlements back to the Commonwealth in the event they were re-appointed to the APS.[20] Accordingly, I also do not regard this as an indication that the applicants’ employment with the Commonwealth was or should be regarded as having been continuous.[20] See exhibits 1B and 2B, S3/33. More fundamentally, another difficulty for Mr Crowe’s argument as I see it is that APS employment, particularly under the 1922 Act, was statute based and governed by the Act. It is clear that the 1922 Act contained provisions which allowed employees who had ceased to be APS officers in certain circumstances to apply for re-appointment to the APS, as Ms McGree and Ms Songer both did.[21] However it is equally clear that in the period between the deemed cessation of their employment and their re-appointment to the APS, the applicants were not regarded as officers of the APS under the 1922 Act, and therefore were not employed by the Commonwealth. Indeed that fact is underlined by the fact that it was necessary for them to be re-appointed to the APS in order to resume their Commonwealth employment. [21] See s 87N(2)(e) of the 1922 Act as in force at the relevant time.