Bronwyn McGree and and Comcare
[2014] AATA 613
•28 August 2014
[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.
.............. [Sgd] ..........................................
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 566Comcare v Simmons (2014) 138 ALD 58
REASONS FOR DECISION
Deputy President K Bean
28 August 2014
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.
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.
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 incapacity payments) to be determined differently depending on whether they have continued to be employed by the Commonwealth or not.
It is that issue which is the subject of this decision. A preliminary hearing on the issue was held on 1 May 2014, and the parties subsequently filed further material for the Tribunal’s consideration.
BACKGROUND
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.
At an earlier point in time, in 1991, an agreement had also been signed between the Commonwealth and the Australian Council of Trade Unions (ACTU) and its affiliates relating to the transfer of staff in repatriation hospitals from employment with the Commonwealth to employment with the States.[5] Paragraph 5.6 of that 1991 agreement provided as follows:
Return to the APS. DVA Officers transferred to the State may compete on merit for APS Gazette vacancies and may appeal against APS promotions for those positions that are appellable indefinitely.
In addition, for the first 4 years after transfer, DVA officers transferred to the State will be able to apply to the Public Service Commissioner for re-entry to the Australian Public Service on the grounds that the person’s career has been adversely affected as a result of a reduction or alteration in the activities of the hospital. Applications on compassionate grounds may be considered beyond 4 years.[6]
[5] Exhibits 1B and 2B, S1/1.
[6] Exhibits 1B and 2B, S1/6.
It was in the context of these agreements and arrangements that both applicants received offers of employment from the South Australian Health Commission as a result of the RGHDP’s pending integration into the South Australian health system. However, it is appropriate at this stage for me to turn to each of their individual circumstances.
Ms McGree
In February 1991, Ms McGree commenced work as a nurse at the RGHDP, which, as I have indicated above, was then owned and run by the Commonwealth Department of Veterans’ Affairs. She subsequently suffered an injury (“lower back strain”) on 12 July 1994, which was found by Comcare to be compensable.
However, on 5 December 1994, Ms McGree received an offer of employment from the South Australian Health Commission as a result of the RGHDP’s pending integration into the State health system. The offer stated:
You should note that if you do not accept this comparable job you will be deemed to have resigned from the Australian Public Service from 8 March 1995.[7]
...
If you accept the offer you will be deemed to have resigned from the Australian Public Service from 8 March 1995 and will become an employee of the Repatriation General Hospital Incorporated under the provisions of the South Australian Health Commission Act.[8]
It is not in dispute that Ms McGree accepted the offer.
[7] Exhibit 1A, T3/14.
[8] Exhibit 1A, T3/15.
However, on 8 September 1995, Ms McGree was informed that her employment with the South Australian Health Commission had ceased as of that date, on the grounds that she had not returned to full substantive duties within six months of the transfer, as contemplated by clause 7.4 of the agreement between the Commonwealth and the State.[9]
[9] Exhibit 1A, T4/16.
As she was entitled to do so in these circumstances, in December 1995 Ms McGree applied for re-appointment to the APS. On 10 January 1996, the Australian Public Service Commission wrote to Ms McGree advising her that she was eligible for re-appointment to the Australian Public Service (APS) pursuant to s 87Q of the Public Service Act 1922 (the 1922 Act).
Upon reporting for duty, Ms McGree was subsequently re-appointed to the APS as an “excess officer”, with her re-appointment taking effect from the day after the cessation of her employment with the South Australian Health Commission, namely 9 September 1995[10].
[10] See s 87Q(4) of the 1922 Act as in force at the relevant time, and exhibit 1B, S10/61.
Ms McGree provided further information to the Tribunal during and after the conclusion of the preliminary hearing. This information indicates that Ms McGree’s recreation leave entitlements were paid out in 1995 following the “cessation” of her employment with the Commonwealth. However, her long service leave entitlements were not paid out, and subsequent to the resumption of her APS employment, her long service leave entitlements were calculated on the basis that her APS service had been continuous. The sick leave entitlements she had accrued up until that time were also transferred over upon her re-appointment to the APS, and she was given the same Australian Government Service (AGS) number she had previously had.[11]
[11] Ms McGree’s further material received via email on 7 May 2014.
Ms Songer
Ms Songer commenced work as a nurse at the RGHDP in July 1990. She too suffered an injury (“lumbar facet joint syndrome and adjustment reaction with depressive reaction”), on 1 February 1995, for which Comcare accepted liability.
Ms Songer received the same offer of transfer as Ms McGree, which she also accepted. Like Ms McGree, her employment with the South Australian Health Commission ceased on 8 September 1995 due to her inability to return to full substantive duties, and Ms Songer was also re-appointed to the APS and declared an “excess officer”, with effect from 9 September 1995.
Ms Songer also provided further evidence of her employment status following the conclusion of the preliminary hearing. An email she has provided from the Department of Veterans’ Affairs dated 12 May 2014 confirms that the calculation of Ms Songer’s long service leave entitlements after her re-appointment to the APS included her period of service from 1990 to 1995.[12] Further, she was also given the same AGS number upon resumption of her APS employment, and her sick leave entitlements apparently also “came with” her upon her re-appointment to the APS.
LEGAL FRAMEWORK
[12] Ms Songer’s further material received via email on 12 May 2014.
The relevant provisions
As I have alluded to above, s 19 of the SRC Act provides for an injured employee’s incapacity payments to be calculated by reference to their “normal weekly earnings” before their injury. Section 8 of the SRC Act also contains provisions which determine how an employee’s “normal weekly earnings” are derived, and what changes are made to that amount over time.
Subsection 8(10) is one of those provisions, and is directed to ensuring that an employee is not “over compensated” by reference to what they would have been earning if they had not been incapacitated. It provides:
8(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 authorities
As I understand the position, there are no decisions of the Federal Court which directly address the issue currently before me. However, the meaning of the phrase “where the employee continues to be employed by the Commonwealth” in the context of s 8 of the SRC Act was most recently considered by the Tribunal in the decision of Deputy President Forgie in Re Miechel and Military Rehabilitation and Compensation Commission [2014] AATA 508, albeit the focus of the inquiry in that matter was subs 8(7) rather than subs 8(10). In that decision, Deputy President Forgie relevantly observed as follows (omitting citations):
42.The ordinary meanings of the word “continue” include two meanings that are not consistent with each other. They are:
“…1 tr & intr to go on without stopping. … 3 tr & intr to carry on or start again after a break …”
After referring to certain observations of the Full Court of the Federal Court in Breust v Commissioner for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1991) 30 FCR 40, Deputy President Forgie concluded that in order for an employee to be regarded as having continued to be employed by the Commonwealth “… there must be no break in that employment by the Commonwealth.” It was implicit in this conclusion that she considered the first of the dictionary meanings she referred to as being applicable in the context of subs 8(10).
Deputy President Forgie also noted that her conclusion was consistent with that reached by the Tribunal in Re West and Comcare (1999) 55 ALD 301. In that matter, the Tribunal, constituted by Senior Member Burton, addressed the question of whether an employee’s Commonwealth employment had continued in the context of both subs 8(7) and subs 8(10). She said:
...In assessing whether or not s 8(7) applies to an employee’s situation, regard must be had to the nature of the employment at the time the injury was suffered, the nature of the break in, or the suspension or interruption of, the employment, the nature of the resumed employment, and the employment history, including promotions, thereafter.
Circumstances can be envisaged where employment with the Commonwealth continues, notwithstanding a break in that employment. An employee who takes an authorised leave of absence does not necessarily discontinue his or her employment, though that person may be absent for a significant period of time, and working elsewhere – for example on an exchange program. The duration of the break is a relevant factor to be looked at for the purpose of assessing the nature of the break in the employment, but on its own its length is not decisive.
The question arises whether an employee who resigns from Commonwealth employment and subsequently obtains employment in the APS can retrospectively change his or her status from that of a person who has ceased being employed by the Commonwealth to one who continues to be employed by the Commonwealth. If “ceased” is to be given any meaning in s 8(10), I do not think the passage of time can alter the status of the employee from someone who has “ceased” employment with, to someone who “continues” to be employed by, the Commonwealth.[13]
[13] At [17]-[19].
However, having regard to the facts of that case, the Senior Member also commented in the context of subs 8(7):
I therefore do not have to decide whether Commonwealth employment which has been terminated can be regarded as unbroken in circumstances where the employee is re-employed in the same Commonwealth employment within a short period of time.[14]
She later continued:
His severance from the APS was complete. There is no evidence before me that on his resignation ... the applicant intended to return to the APS or that his employment was to be resumed or continued at a later date. There is no evidence of any contractual right or any understanding that his employment could be resumed.
...
The break in the applicant’s employment is a significant one. It was lengthy, it was not temporary.
...
The first occasion the applicant ceased his Commonwealth employment after his injury was short. On subsequent occasions he ceased his Commonwealth employment and remained outside Commonwealth employment for longer periods of time. On each occasion he severed his connection with his Commonwealth employer, on each return to Commonwealth employment, he was engaged in a new position.
...
The continuity of employment is severed when a break in the employment is such that intervening factors come into play. The provisions of the Act clearly intend that consequence.
[14] At [23].
I should also note that whilst the Federal Court does not appear to have directly addressed the application of subs 8(10) to an employee who has ceased and then resumed Commonwealth employment, the Court has addressed other aspects of the construction and application of the provision. In the Full Court decision of John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566, Dowsett J (with whom Spender J agreed) relevantly stated:
[19]Section 8(10) differentiates between employees who continue to be employed by the Commonwealth or a licensed corporation (to whom s 8(10)(a) applies) and employees who have ceased to be so employed (to whom s 8(10)(b) applies). However, the section does not expressly identify the point in time at which a relevant employee's employment status is to be determined. The compensation payable pursuant to s 19 is weekly compensation, being the amount of the NWE less the amount which the employee earns in the week for which he or she is to be compensated, or the amount which he or she is capable of earning in suitable employment. I infer that s 8(10) is to operate according to the circumstances which obtain in each week in respect of which compensation is otherwise payable. In Bortolazzo v Comcare (1997) 75 FCR 385 at 388, Heerey J took that approach.[15]
Later in his Reasons, he also stated:
[74] Clearly, s 8(10) seeks to limit the compensation payable to an injured employee by reference to his or her notional earnings derived from employment with the same employer had he or she not been injured. Section 8(10)(a) demands a notional enquiry which commences with the employee's actual current employment. The enquiry is as to his or her earnings in that employment had he or she not been injured. Such enquiry would involve consideration of how, in those circumstances, the employee would have been employed, including consideration of whether he or she would have continued to perform the same duties as were being performed at the time of the accident.[16]
[15] (2010) 185 FCR 566, p. 571.
[16] (2010) 185 FCR 566, p. 586.
The Full Court also addressed the construction and application of subs 8(10) in the decision of Comcare v Simmons (2014) 138 ALD 58, handed down earlier this year. In that matter, the Court relevantly noted that:
…s 8(10) “imposes a cap upon the amount of pre-injury NWE of an employee” … and “a last stop ‘reality check’, or audit, on the calculation under ss 8(6)-(9G)” …[17]
Flick and Griffiths JJ also noted:
…Section 8(10)(a) requires attention to be directed to the “amount per week of the earnings that the employee would receive if he or she were not incapacitated for work”. That amount may be greater or less than the amount the employee was earning prior to the injury. An employee may change employment within the Commonwealth for a variety of reasons, some perhaps being occasioned by the injury and others having no connection with the injury.
…
The fact that ss 8(10)(a) and 8(10)(b) are directed to two different situations and require separate calculations to be undertaken does not necessarily give rise to any “anomaly”. The two provisions are directed at placing a “cap” on the calculation of “normal weekly earnings” and are an attempt to accommodate the many different situations which may confront an injured employee. The different inquiries which must be undertaken is but a consequence of the statutory language employed by the legislature.[18]
[17] (2014) 138 ALD 58, at [8].
[18] (2014) 138 ALD 58, at [10] and [11].
ISSUE
It follows that the issue for my determination is whether, having regard to the applicable authorities and their particular circumstances, Ms McGree and Ms Songer have each continued to be employed by the Commonwealth, thus invoking subs 8(10)(a), or whether they “ceased to be employed by the Commonwealth”, bringing them within the terms of subs 8(10)(b).
CONTENTIONS FOR THE APPLICANTS
Mr Crowe, who appeared on behalf of the applicants, accepted that the applicants were not employed by the Commonwealth for a period in 1995, and that they were in fact employed by the State government for that period, prior to their re-appointment to the APS. However, Mr Crowe contended that the Tribunal should have regard to the factors outlined in the Tribunal’s decision in West in determining whether subs 8(10)(a) or (b) is applicable.
In arguing that those factors supported a conclusion that the applicants should be regarded as having continued to be employed by the Commonwealth, he pointed to the fact that both applicants were nurses at the time they suffered their respective injuries, and that in both cases their Commonwealth employment was “forcibly interrupted”. He submitted that the applicants did not choose to leave their Commonwealth employment, but were deemed to have resigned in circumstances where the two choices they did have would have led to the same outcome. Further, in terms of their employment history, both Ms McGree and Ms Songer were ultimately unable to continue their employment as nurses, and eventually became APS 5 clerical officers.
Mr Crowe also contended that the purpose of compensation is to, as far as possible, put a person in the position they were in before they suffered the compensable injury. He submitted that the applicants’ progress in their roles as clerical officers is indicative of the progress they could have made as nurses, were it not for their compensable injuries. Thus, he said, it is in accordance with the spirit or intent of the SRC Act that their compensation be determined on the basis of the higher NWE that would result if this was calculated by reference to their ongoing Commonwealth employment.
Mr Crowe drew attention to the unusual decision of the Commonwealth to re-appoint the applicants as “excess officers” following the cessation of their employment with the State. He suggested that this was done on the basis of a perceived obligation by the Commonwealth to employees who had been injured during their Commonwealth service.
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.
I have nevertheless considered whether Ms McGree and Ms Songer could be regarded as “continuing” in Commonwealth employment after 9 September 1995, notwithstanding that they were not so employed between March and September, on the basis that they “continued” to be employed by the Commonwealth after the hiatus between March and September 1995. However I note that this argument was considered and rejected by Deputy President Forgie in Miechel, albeit in the context of subs 8(7) rather than subs 8(10) of the SRC Act, and I respectfully agree with her conclusion.
Having regard to the overall scheme and purpose of the SRC Act, I consider that the intention of subs 8(10) is to create a distinction between employees who continue to be employed by the Commonwealth after their injury, and those who leave that employment, even if they later return. That distinction ensures that employees who have left Commonwealth employment are not “over compensated”[22] having regard to what they would have earned if they had remained, in circumstances where it is no longer possible to accurately ascertain what they would have earned if they had remained in Commonwealth employment. However, it also allows those who have remained continuously in Commonwealth employment to be compensated on a basis which takes account of either positive or negative changes in their Commonwealth employment, so that they continue to receive appropriate compensation for any time away from work, taking due account of increases or decreases in remuneration subsequent to their injury which are not attributable to that injury.
[22] See Bortolazzo v Comcare (1997) 75 FCR 385 at 388.
I consider this analysis to be consistent with the observations of Dowsett J in John Holland at [74], to which I have made reference above. In addition, it is consistent with his Honour’s conclusion that “s 8(10) is to operate according to the circumstances which obtain in each week in respect of which compensation is otherwise payable”. It would seem to follow from that approach that in order for an employee to be regarded as having continued to be employed by the Commonwealth, there must be no break in their service. Otherwise, the question of whether they ‘continued’ or ‘ceased’ to be employed by the Commonwealth would be answered differently during a break in an employee’s service than it would be upon resumption of that service. It would not seem to accord with the overall scheme of the SRC Act that an employee’s NWE would be calculated by reference to subs 8(10)(b) during a break in their service with the Commonwealth, but under subs 8(10)(a) upon any resumption of that service[23]. Rather, in my view, the intention of the legislation is that once an employee leaves the employment they were engaged in at the time of their compensable injury, their NWE is calculated by reference to subs 8(10)(b) rather than subs 8(10)(a).
[23] Senior Member Burton appeared to be making a similar point in West at [19] when she said “If “ceased” is to be given any meaning in s 8(10), I do not think the passage of time can alter the status of the employee from someone who has “ceased” employment with, to someone who “continues” to be employed by, the Commonwealth.”
I accept that treating Ms Songer and Ms McGree as having “continued” to be employed by the Commonwealth would not be inconsistent with what I consider to be the rationale underpinning subs 8(10), as they returned to employment with the same Department after a short break, and the effect of treating them as having been continuously employed would be to take account of changes in their employment which arguably would have occurred if there had been no break in their employment. However, that would not have been likely to be the case if they had resumed employment with the Commonwealth in a different capacity, and/or after a longer break, and in my view the provision does not allow a distinction to be drawn between employees based on the length of any break in their service.
In this context, I should also expressly acknowledge that in West, Senior Member Burton left open the question of whether an employee could potentially be regarded as having been continuously employed by the Commonwealth in circumstances where they had been “re-employed in the same Commonwealth employment within a short period of time”, for the purposes of subs 8(7). However, it follows from my analysis and conclusions that I have determined that employees who are in that situation, as Ms McGree and Ms Songer each are, cannot be regarded as having been continuously employed by the Commonwealth for the purposes of subs 8(10).
In these circumstances, notwithstanding it would not necessarily be inconsistent with the intention of s 8 to treat Ms Songer and Ms McGree as having “continued” to be employed by the Commonwealth, I am not satisfied that it is open to me to do this as I am not persuaded that the interpretation of subs 8(10) advanced by Mr Crowe is correct. Rather, for the reasons I have given, I am satisfied that in order for an employee to be regarded as having “continued” to be employed by the Commonwealth, they must have been continuously employed by the Commonwealth with no break in their service.
CONCLUSION
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.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean. ........ [Sgd] ........................................
Associate
Dated 28 August 2014
Date of hearing 1 May 2014 Date final submissions received 16 June 2014 Advocate for the Applicants Mr A Crowe Counsel for the Respondent Ms G Walker Solicitors for the Respondent Australian Government Solicitor
0
4
0