Dennis Mayer and and Comcare

Case [2014] AATA 55

[2014] AATA 55 

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/5137

and

2012/4211

Re

Dennis Mayer

and

Terrence Lowes

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

RM Creyke, Senior Member
Date 4 February 2014
Place Canberra

The decisions under review are set aside and varied.

.....................[sgd]...............................

RM Creyke, Senior Member

Catchwords

COMPENSATION – Calculation of average weekly earnings (AWE) – Period for calculation – Rate of calculation - Calculation of overtime for purposes of AWE calculation – Australian Federal Police

Legislation

Compensation (Commonwealth Government Employees) Act 1971 (Cth) sections 19, 25 and 124

Cases

Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 124 CLR 97

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials

Instructions Relating to the Compensation (Commonwealth Government Employees) Act and Regulations (Office of the Commissioner for Employees’ Compensation, 1980)

Macquarie Concise Dictionary (5th edn, 2009)

REASONS FOR DECISION

RM Creyke, Senior Member

4 January 2014

  1. As these two matters contained similar issues, the same employer, namely, and were to be decided under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act), they were heard together.

  2. Mr Mayer and Mr Lowes were formerly employed by the Australian Federal Police (AFP).  Both suffered work-related injuries:  Mr Mayer was in an accident in December 1981 while on duty and was retired on medical grounds on 3 June 1983;  Mr Lowes, injured himself lifting his work-related motor-cycle on to its stand on 26 February 1985. He was invalidity retired on 16 December 1985.

  3. The matter was heard in Canberra on 12 and 27 August 2013.  Further evidence was provided to the Tribunal on 1 November 2013, 29 November 2013 and 6 December 2013. The Tribunal is satisfied that it has jurisdiction in this matter.

    Background

    Mr Mayer

  4. Mr Dennis Mayer, born 1949, joined the ACT Police in May 1971. On 22 December 1981 he suffered a compound fracture to his right tibia and fibula as a result of a motor vehicle accident during the course of his employment. This is the agreed date of injury.

  5. Mr Mayer’s claim for compensation was accepted under the Compensation (Commonwealth Government Employees) Act 1971. In his application for compensation, made on 19 February 2010, Mr Mayer queried the basis for the calculation of the component of his incapacity payments in the normal weekly earnings (NWE) amounts. In the reviewable decision dated 2 November 2012, this issue was narrowed specifically to the calculation of the average weekly earnings (AWE) component.  He sought a further review by the Tribunal of the issues concerning his AWE on 13 November 2012

  6. In calculating the AWE for Mr Mayer, the parties, during the course of these proceedings, have agreed that:

    ·The AWE should be calculated using relevant pay scales for a Senior Sergeant;

    ·All entitlements, bonuses and overtime rates are to be calculated at the Senior Sergeant rate;

    ·In accordance with the pay slips provided…

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AGLC
Dennis Mayer and and Comcare [2014] AATA 55
Case
[2014] AATA 55
Decision Date

CaseChat Overview and Summary

The case of Dennis Mayer and Comcare was adjudicated by the Administrative Appeals Tribunal. The central issue was the calculation of Mr Mayer's average weekly earnings (AWE) for the purposes of his incapacity payments. Mr Mayer, a former police officer, sought a review of the calculation of his AWE following an injury in 1981. The specific matters in dispute included the relevant period for calculating the AWE, the hourly rate for the calculation, and the average weekly overtime hours.

The Tribunal was tasked with interpreting and applying Section 25 of the Compensation (Commonwealth Government Employees) Act 1971 in determining the AWE. This section mandates that AWE should be calculated based on the period immediately preceding the injury, up to a maximum of twelve months, and includes earnings from overtime. The Tribunal considered the evidence presented regarding Mr Mayer's overtime hours, which were recorded as 126.5 hours at time and a half and 187 hours at double time over a 34-week period prior to his injury. The Tribunal also noted the importance of including increments that were initially omitted from the calculation.

After thorough consideration, the Tribunal concluded that the AWE for Mr Mayer should be recalculated by Comcare. The Tribunal determined that the calculation should be based on a 34-week period, including the pay period represented by the payslip dated 27 August 1981. It further specified that all entitlements, bonuses, and overtime rates should be calculated at the Senior Sergeant rate, and the omitted increments from 1990 to 1993 should be included in the recalculation. The case was remitted to Comcare for recalculation in accordance with these findings.

Orders

Orders of the court

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Background

Background to the litigation

The matter was heard in Canberra on 12 and 27 August 2013. Further evidence was provided to the Tribunal on 1 November 2013, 29 November 2013 and 6 December 2013. The Tribunal is satisfied that it has jurisdiction in this matter.BackgroundMr Mayer Mr Dennis Mayer, born 1949, joined the ACT Police in May 1971. On 22 December 1981 he suffered a compound fracture to his right tibia and fibula as a result of a motor vehicle accident during the course of his employment. This is the agreed date of injury. Mr Mayer’s claim for compensation was accepted under the Compensation (Commonwealth Government Employees) Act 1971. In his application for compensation, made on 19 February 2010, Mr Mayer queried the basis for the calculation of the component of his incapacity payments in the normal weekly earnings (NWE) amounts. In the reviewable decision dated 2 November 2012, this issue was narrowed specifically to the calculation of the average weekly earnings (AWE) component. He sought a further review by the Tribunal of the issues concerning his AWE on 13 November 2012 In calculating the AWE for Mr Mayer, the parties, during the course of these proceedings, have agreed that:·The AWE should be calculated using relevant pay scales for a Senior Sergeant;·All entitlements, bonuses and overtime rates are to be calculated at the Senior Sergeant rate;·In accordance with the pay slips provided in the 34 week period preceding the date of injury Mr Mayer undertook the following overtime:(i)126.5 hours at time and a half; and(ii)187 hours at double time. Increments during the period 1990-1993 were not included in the initial calculation and are to be part of any recalculation.Mr Lowes Mr Terence Lowes, born 18 August 1948, joined the ACT Police on 24 September 1973. On 26 February 1985, he suffered an injury to his lower back while attempting to put his motor cycle on its stand. It has been accepted that the injury was employment-related and that the date of injury was 26 February 1985. His claim for compensation was accepted under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act). On 4 December 2009 Mr Lowes sought a review of the calculation of his normal weekly earnings (NWE) for the purpose of the calculation of his incapacity payments. His NWE were recalculated by Comcare in a reviewable decision on 12 September 2012. He sought a further review by the Tribunal on 19 September 2012. The parties have agreed that increments were included in the calculations of incapacity payments for Mr Lowes.Joint applications It is accepted that overtime in the ACT Police was paid in arrears with a cut-off date of the Sunday before payday. That means that overtime was paid at least two weeks and four days after the overtime was worked. There is a paucity of records in these two matters due to the elapse of time since the events leading to the respective injuries. Legislation The legislation is the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act), the provisions of which are to be used in calculating compensation in the case of injuries or diseases which arose prior to the commencement of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 124 of the Act provides that the provisions of the 1971 Act are to apply to the calculations of compensation under section 19 of the Act. In particular section 25 of the 1971 Act provides how average weekly earnings should be calculated. IssuesMr Mayer

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The absence of reliable records, and the variable nature of the duties performed, means that the Tribunal is not prepared to rely on Mr Lowes’s recollections, nor the figures for others who performed escort duty. That means the Tribunal is left with the most probative evidence produced which are the figures in Attachment C. Accordingly the Tribunal concludes that Mr Lowes’s overtime rate should be 4.37 hours a week for the purpose of calculating his AWE. ConclusionMr Mayer Comcare should calculate Mr Mayer’s AWE for the purpose of assessing his NWE under s 19 of the Act taking account of the following findings made by or approved by the Tribunal:·The pay scale at the relevant time is for a Senior Sergeant;·All entitlements, bonuses and overtime rates are to be calculated at the Senior Sergeant rate;·The period over which the calculation should take place is 34 weeks, including the pay period represented by the payslip dated 27 August 1981;·In the 34 weeks preceding the date of injury, Mr Mayer undertook the following overtime:o126.5 hours at time and a half;o187 hours at double time. ·Increments during the period 1990 to 1993 have not been included and should be included in the calculation. The matter should be remitted to Comcare for recalculation in accordance with these findings.Mr Lowes The Tribunal concludes, in relation to the application by Mr Lowes, that Comcare should recalculate his AWE on the basis of the following findings:·the period used as the basis for the calculation should be the 46 weeks commencing in the pay period represented by the payslip for 15 April 1984 and ending on 21 February 1985;·the hourly rate applicable to the calculation of earnings of Mr Lowes in the relevant period should be based on the approach set out in the Tribunal’s paragraph 52 of these reasons, taking an average of the 46 weeks prior to the date of injury; and·the average weekly overtime hours was 4.37 hours.

Ratio Decidendi

Legal Principle Established

The remaining areas of dispute are:(a)The relevant period for calculating AWE; (b)The hourly rate at which the calculation of his AWE should be assessed; and(c)The average weekly overtime hours.Consideration Section 25 of the 1971 Act states as relevant:25(1) For the purposes of this Part, the average weekly earnings of an employee before an injury shall be calculated in accordance with this section. …(4) Subject to the succeeding provisions of this section, the average weekly earnings of an employee before the injury shall be calculated in relation to the period immediately preceding the date of the injury in which he was continuously employed by the Commonwealth but any part of that period that was earlier than twelve months before that date shall be disregarded.(5) Subject to the next succeeding sub-section, if, during the period ascertained in accordance with the last preceding sub-section, the minimum amount per week payable to the employee in respect of his employment by the Commonwealth was varied as a result of the operation of a law of the Commonwealth or of a State or Territory, or as a result of the making, alteration or operation of an award, order, determination or industrial agreement, or of the doing of any other act or thing, under such a law, so much of that period as occurred before the variation took place, or, if there was more than one variation, before the last variation took place, shall be disregarded for the purposes of the last preceding sub-section.(6) Where –(a) as a result of a variation in the minimum amount per week payable to the employee in respect of his employment by the Commonwealth, a period that occurred before the variation took place would, by reason of the last preceding sub-section, be disregarded for the purposes of sub-section (4); and(b) if that period were so disregarded, it would be impracticable to calculate the average weekly earnings of the employee before the injury in accordance with sub-section (4), or the average weekly earnings as so calculated would not fairly represent the rate per week at which the employee was being remunerated in respect of that employment before the injury,that period shall not be so disregarded but the average weekly earnings of the employee during that period shall be taken to be the amount that would have been his average weekly earnings during that period of the variation had taken effect at the commencement of that period. (7) If, during any part of the period in relation to which the average weekly earnings of the employee before the injury are required to be calculated by virtue of the last three preceding sub-sections, the earnings of the employee were reduced, or the employee did not receive any earnings, by reason that he was absent from his employment owing to illness or otherwise, that part of that period shall be disregarded for the purposes of sub-section (4). …(12) In this section, ‘Earnings’ includes earnings in respect of overtime. MR MAYER The calculations of the average number of hours of overtime Mr Mayer performed are to be made in accordance with section 25. Section 25(4) provides that ‘the average weekly earnings of an employee before the injury shall be calculated in relation to the period immediately preceding the date of the injury’ up to a period of the preceding twelve months. Average weekly earnings includes overtime.[1] Mr Mayer’s date of injury was 22 December 1981. [1] Compensation (Commonwealth Government Employees) Act 1971 (Cth) section 25(12).