FEDERAL COURT OF AUSTRALIA
Chun v Comcare [2013] FCA 11
Citation: Chun v Comcare [2013] FCA 11 Appeal from: Chun v Comcare [2012] AAT 471 Parties: MIKO CHUN v COMCARE File number: NSD 1250 of 2012 Judge: ROBERTSON J Date of judgment: 18 January 2013 Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – workers compensation – calculation of incapacity payments – normal weekly earnings – whether employer superannuation contributions form part of the calculation of normal weekly earnings – whether increases for continuing employees under industrial agreement form part of the calculation of normal weekly earnings Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 8(1), 8(6), 8(9B), 19, 20, 21 and 21A
Superannuation Act 2005 (Cth) ss 4, 10 and 17
Superannuation Guarantee (Administration) Act 1992 (Cth)
Superannuation Industry (Supervision) Regulations 1994 (Cth) reg 6.01(2)Cases cited: Buck v Comcare (1966) 66 FCR 359 referred to
Comcare v Thompson (2000) 100 FCR 375 applied
Hammerton and Comcare [1995] AATA 63, (1995) 21 AAR 204 cited
Mahony v Federal Commissioner of Taxation (1967) 41 ALJR 232 referred to
McDonald v Department of Defence [1999] FCA 882 applied
McKernan and Comcare (2004) 85 ALD 508 cited
Military Rehabilitation and Compensation Commission v Perry (2007) 164 FCR 307 considered
Mutual Acceptance Company Limited v Federal Commissioner of Taxation (1944) 69 CLR 389 considered
PPHF v Director-General of Security (2011) 193 FCR 436 referred toDate of hearing: 19 December 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 68 Counsel for the Applicant: Mr C O'Neill Solicitor for the Applicant: Ian Collins Solicitor Counsel for the Respondent: Mr P Woulfe Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1250 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: MIKO CHUN
Applicant
AND: COMCARE
Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
18 JANUARY 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.Costs be reserved.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1250 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: MIKO CHUN
ApplicantAND: COMCARE
Respondent
JUDGE:
ROBERTSON J
DATE:
18 JANUARY 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 25 July 2012.
By that decision the Tribunal remitted the decision under review to the respondent, Comcare, in respect of an issue which the respondent had conceded, the issue being as to a date under s 19(2A) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). No issue arises on this appeal in respect of that matter. Two other issues were decided against the…
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- AGLC
- Chun v Comcare [2013] FCA 11
- Case
- [2013] FCA 11
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were twofold. Firstly, whether employer superannuation contributions should be included in the calculation of the applicant's NWE. Secondly, whether the applicant was entitled to the benefit of both s 8(6) and s 8(9B) increases in his NWE calculation. These issues hinged on the interpretation of specific sections of the Act and relevant industrial agreements.
In addressing the first issue, the court considered whether employer superannuation contributions constituted an "allowance payable to the employee" within the definition of NWE under s 8(1) of the Act. The court held that such contributions do not form part of the NWE calculation as they are not an "allowance" within the meaning of the Act. As for the second issue, the court found that the applicant was not entitled to the benefit of both s 8(6) and s 8(9B) increases because his employment had been terminated prior to the implementation of the relevant industrial agreement. Therefore, the court concluded that only the salary increases specified in the agreement that was in force at the time of termination should be considered.
The appeal was dismissed, and costs were reserved. The court's decision was grounded in a meticulous interpretation of the statutory provisions and the applicable industrial agreements, leading to a clear and decisive outcome.
Orders
Orders of the court
1. The appeal be dismissed.
2. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
By his amended notice of appeal dated 26 October 2012 the applicant stated the following two questions of law:1.Whether Employers Superannuation Contributions form part of the NWE calculation in whole or in part.2.Whether the Applicant is entitled to the benefit of both s 8(6) and s 8(9B) increases.ConsiderationFirst question The answer to the first question turns on the meaning of the words “any allowance payable to the employee in each week in respect of his or her employment during the relevant period” within the description of “A” in s 8(1) of the Act. More particularly, the question is whether, as the applicant contends, the employer contributions to his superannuation are such an “allowance”. Section 19 of the Act, referred to above, provided relevantly:19 Compensation for injuries resulting in incapacity(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:NWE – AEwhere:AE is the greater of the following amounts:(a)the amount per week (if any) that the employee is able to earn in suitable employment;(b)the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.NWE is the amount of the employee’s normal weekly earnings.… (3A) If, as a result of the incapacity:(a)the amount per week payable to the employee in respect of his or her continued employment is reduced; and(b) a pension under a superannuation scheme is payable to the employee;subsection (3) applies in relation to the employee in relation to a week during which the employee is incapacitated as if the references in the subsection to the amount he or she was able to earn during the week in suitable employment were instead references to the sum of that amount and any amount of the pension referred to in paragraph (b) that is payable to the employee in respect of that week.… Normal weekly earnings (NWE) is defined in s 4(1) and s 8(1) of the Act as follows:For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:(NH x RP) + Awhere:NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period.RP is the employee’s average hourly ordinary time rate of pay during that period; andA is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.