Comcare v Hart

[2004] FCA 1067

FEDERAL COURT OF AUSTRALIA

Comcare v Hart [2004] FCA 1067

WORKERS COMPENSATION – Commonwealth employees – appeal from Administrative Appeals Tribunal (AAT) – statutory compensation entitlement calculated by reference to ‘normal weekly earnings’ (NWE) of employee – whether adjustment to NWE required in circumstances where relevant workplace had been restructured such that duties equivalent to those performed by the injured employee at date of injury had been re-classified by the employer

Safety, Rehabilitation and Compensation Act 1988, s 8

COMCARE v JOHN HART
A 32 OF 2003

GYLES J
19 AUGUST 2004
SYDNEY (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 32 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	COMCARE APPLICANT
AND:	JOHN HART RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	19 AUGUST 2004
WHERE MADE:	SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

The proceeding stand over to a date to be fixed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 32 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	COMCARE APPLICANT
AND:	JOHN HART RESPONDENT

JUDGE:	GYLES J
DATE:	19 AUGUST 2004
PLACE:	SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

1. This is an appeal on a question of law from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 5 November 2003 which set aside a decision by Comcare (the applicant) as to the normal weekly earnings (NWE) of John Anthony Hart (the respondent) pursuant to s 8 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).

2. In 1998 the respondent was employed at the Quamby Youth Detention Centre in the Australian Capital Territory. His substantive position was at the level of Administrative Services Officer (ASO) Class 2 but he was acting at ASO Class 3 level. He suffered injury in the form of a psychiatric condition, ‘depression with anxiety symptoms’, which was accepted as the basis of a claim for compensation under the Act effective from 10 February 1998. His normal weekly earnings (NWE) for the purpose of s 8 of the Act included overtime and penalties.

3. Later, the employment arrangements at Quamby were restructured. The substantive ASO 2 position was abolished and a new ASO Grade 3 Youth Worker position was created and there were also new ASO 4 and ASO 5 positions. On 4 April 2000 Comcare determined that the respondent’s compensation payments should be calculated according to s 8(10) of the Act by reference to the NWE of an ASO 3 Youth Worker at Quamby which would include average overtime and penalties for such a worker.

4. Following a review of the penalties and overtime for ASO 3 Youth Workers for the period 1 July 2000 to 30 June 2001, on 8 October 2001 Comcare determined that the respondent’s NWE exceeded the amount per week of earnings that he would have received if he was…