Dennis Mayer and and Comcare
[2014] AATA 55
•4 February 2014
[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
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.
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.
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
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.
Issues
Mr Mayer
The only outstanding issue is the proper method of calculating the average number of hours of overtime performed by Mr Mayer for the purposes of calculating his AWE, and the resultant normal weekly earnings under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Mr Mayer’s date of injury is 22 December 1981.
Mr Lowes
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).
Mr Mayer’s payslips indicated he worked overtime during the relevant period for:
(d)126.5 hours at time and a half; and
(e)187 hours at double time.
It was common ground that these facts were correct.
An offer was made to Mr Mayer by Comcare which resulted in an overtime rate of 9.22 hours per week for the purposes of the calculation of his AWE. The payslips underpinning this calculation were for the period 4 June 1981 to 14 January 1982, covering a period of 34 weeks, assuming the first payslip for 4 June 1981 was for the preceding fortnight commencing 21 May 1981. The parties have accepted that this is the relevant period for calculating Mr Mayer’s AWE. The Tribunal is satisfied that this is a reasonable period for the purposes of the calculation.
Support for this finding comes first from the fact that it is accepted that Mr Mayer’s AWE was to be assessed at the rate of Sergeant throughout the period. Second, there is support in view of the Tribunal’s reasons (see discussion of the application by Mr Lowes) for rejecting the contention that, except for the specific circumstances in section 25(5)-(8) of the 1971 Act, the period of the calculation must be for 12 months.
Mr Mayer contends that the figures for the fortnight covered by the payslip for 27 August 1981 should be excluded on the basis that Mr Mayer did not earn overtime in that fortnight. The result, if that contention was accepted, averaged over 32 weeks, would be an overtime rate of 9.79 hours per week.
Mr Mayer’s contention is that the uncharacteristic absence of overtime in that fortnight indicated he must have taken leave during that period. He argued in support of his contention that there is no other indication of leave taken during that eight month period, and he provided a statutory declaration he made on 20 October 2013 to that effect.
Mr Mayer had also argued that he took leave at that time because the Governor-General, for whom he was providing escort duty at that time, was overseas during that period. Mr Mayer’s evidence was that the Governor-General was out of Australia around that time attending the wedding of Prince Charles and Lady Diana which took place on Wednesday, 29 July 1981. The Tribunal accepts that it was more probable than not that the Governor-General of Australia would have attended that ceremony on behalf of the Australian people and that accordingly Mr Mayer was not required for escort duty during that period and took leave.
In light of Mr Mayer’s evidence, coupled with the Tribunal’s acceptance that there could be a two to four week time lag between an officer working overtime and getting paid for that time, depending on how quickly the Station Sergeant approved the time sheets and the pay section processed the overtime, the Tribunal has accepted that the pay slip dated 27 August 1981 was likely to have represented a period a month earlier, that is in July 1981, when Mr Mayer took leave during the absence of the Governor-General from Australia.
There are two further reasons the Tribunal has accepted that Mr Mayer took leave at that time. Mr Mayer’s leave records for that period cannot be located but Mr Mayer provided his payslips for the fortnights commencing 4 December 1980 to 25 February 1982. The Tribunal has relied on these payslips, as did the parties, in reaching its conclusions that the payslips indicated when Mr Mayer took leave.
The payslips normally had an entry for ‘extra duty’ taken to be overtime, and ‘meal allowance’ in addition to the normal base salary. The payslips indicated there was a consistent pattern of no ‘extra duty’ or ‘meal allowance’ in December 1980, in January and February 1981, and January and February 1982. These are typical periods during the Australian summer when people take leave. So the Tribunal has inferred that the period when no ‘extra duty’ or ‘meal allowance’ is shown on a payslip is likely to be a period of leave. That conclusion supports the finding that the payslip dated 27 August 1981, which also referred only to base salary, was a period of leave.
An added reason is that under section 25 of the 1971 Act the AWE is an average of weekly earnings. The word ‘average’ as relevant means according to the Macquarie Dictionary: ‘…3. The ordinary, normal, or typical amount, rate, quality, kind, etc’.[2] The average weekly earnings amount is therefore intended to be a figure which is representative of the ‘ordinary, normal, or typical’ rate of earnings during a week.
[2] Macquarie Concise Dictionary (5th edn, 2009) 76.
That meaning is also evident from section 25(4)-(8). Section 25(4) specifically provides that the period for assessing the AWE should be the period immediately prior to the date of injury and be for no longer than 12 months.[3] The period of 12 months was apparently chosen since earnings over a year would reflect any increments, award increases, and leave taking which occurred during the year. Sections 25(5)-(8) provide that if the period of employment is unrepresentative because too short or for other atypical reasons an alternative method of calculation is to be adopted.[4] These provisions are indicative of an intention that the period be representative and be fair. Indeed, section 25(6) and (8) expressly refer to exceptions designed to alleviate the problem that certain alternative means of assessing AWE ‘would not fairly represent’ the person’s ‘ordinary, normal, or typical’ earnings.
[3] Compensation (Commonwealth Government Employees) Act 1971 (Cth) section 25(4).
[4] Compensation (Commonwealth Government Employees) Act 1971 (Cth) section 25(5), (6).
Despite these factors, counsel for Mr Mayer had relied specifically on section 25(7) which states:
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 … 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 (emphasis added).
The contention was that the two week period during which Mr Mayer did not earn any overtime fell within this provision since this was a period when his earnings were reduced for reasons other than illness. Counsel argued accordingly that this two week period should be disregarded.
The Tribunal does not accept this contention. The reference to ‘illness or otherwise’ suggests ‘or otherwise’ should be interpreted noscitur a sociis to ‘illness’ to refer to some unusual or untoward reason such as ill-health for a reduction in earnings. The expression in the context[5] was not intended to cover a normal or ordinary incident of employment, such as leave.
[5] Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 124CLR 97 per Gibbs J.
That conclusion is supported by the Instructions Relating to the Compensation (Commonwealth Government Employees) Act and Regulations (Instructions) published by the Office of the Commissioner for Employees’ Compensation in 1980. Clause 25/16 of the Instructions lists the kinds of matters intended to be covered by ‘or otherwise’ as ‘strikes, LWOP [Leave Without Pay], half-pay, sick leave, etc’. These examples indicate the expression referred to untoward, non-routine, or occasional, matters. In addition, the intention apparent in the terms of section 25, for the calculation of AWE to be fair, does not require the taking into account under this provision of a reduction in earnings due to the person being on leave.
In Mr Mayer’s case, the period adopted for the calculation of AWE is two-thirds of a year. There is no indication that this period was unusual for any reason. Nor is there any suggestion that this would not reflect a ‘normal’ or representative set of employment events in relation to his employment. Indeed, the period may in fact have advantaged Mr Mayer since he provided evidence that he would normally take six weeks leave a year. The records and the evidence suggest that during periods of leave no overtime is paid.
The period chosen only has two weeks which are argued to be leave, namely, in the fortnight covered by the payslip for 27 August 1981. If leave of six weeks over a year was taken, as his payslips indicated for the twelve months between 29 January 1981 and 28 January 1982, the period without overtime for two-thirds of the year would be four not two weeks of leave. In other words, the period chosen has given Mr Mayer some advantage since it contains less weeks without overtime than could be expected when the leave is spread over a year. Nonetheless, given there was evidence that operational requirements may mean that members of the AFP may, on occasion, have to forego leave, the Tribunal is prepared to accept that two weeks without overtime in the course of the eight months is not unfair. Accordingly the Tribunal finds that the period for the calculation should include the two weeks covered by the payslip dated 27 August 1981.
MR LOWES
The three issues in relation to the claim by Mr Lowes are the relevant period for calculating his AWE, the rate at which the calculation should be made, and the average weekly overtime hours.
Period for calculation of AWE
The original calculations of Mr Lowes’s AWE were based on a period of twelve months immediately prior to his date of injury, namely 26 February 1985. The AFP’s evidence was that choice of twelve months was standard in such claims unless there was a special reason for a lesser period. The calculation must take account of any allowances received including higher duties allowance.[6]
[6] Compensation (Commonwealth Government Employees) Act 1971 (Cth) section 25(2).
Mr Lowes contended that the period should be 4 July 1984 to 26 February 1985, a shorter period of eight months. That choice would exclude a period of some three months from mid-April 1984 to early July 1984 when the Tribunal has evidence that Mr Lowes was being paid only at his base level salary as a Senior Constable. Mr Lowes’s argument is that for the subsequent eight months until the date of injury he was undertaking higher duties at either a Sergeant or Senior Sergeant and this was more representative of his salary prior to the injury. The effect of inclusion of the period from mid-April 1984 would be to reduce the rate of his AWE.
Mr Lowes’s contention was that the period for the calculation under section 25(4) is up to twelve months provided the period is sufficient to allow for a fair and accurate assessment of his AWE as at the date of injury. His argument is that to average out his earnings over a twelve months’ period was an inaccurate calculation based on Mr Lowes’s AWE at the date of injury, and produced unfairness. Accordingly he said a lesser period should be chosen.
Mr Lowe’s interpretation of section 25(4) also relies on clause 25/13 of the Instructions. That clause provides:
Sub-section 25(4) provides that, subject to the succeeding provisions in the section, the AWE of an employee before the injury shall be calculated over a period, NOT EXCEEDING TWELVE MONTHS, immediately preceding the date of injury during which the employee was continuously employed by the Commonwealth.
The reference in the Instructions to ‘not exceeding twelve months’ implies a shorter period can be chosen. The Instructions reflect the Tribunal’s understanding of the correct interpretation of section 25(4). Although the Instructions are a policy document only, as the Foreword acknowledges, the Tribunal can take it into account unless it is contrary to the statute, which in the Tribunal’s view it is not.[7]
[7] 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 at 640 per Brennan J.
Comcare contended that the relevant period for calculating Mr Lowes’s AWE should commence in April 1984 when there was a variation in the relevant award.[8] This contention was based on a reading of section 25(5), that the period is for twelve months except where there had been a variation in the relevant award. The period from April 1984 is a period of 46, not 52, weeks, that is, some ten and a half months.
[8] Compensation (Commonwealth Government Employees) Act 1971 (Cth) section 25(5).
The Tribunal considers that the expression ‘shall be calculated’ in section 25(4) qualifies the end date for the period of the calculation, that being ‘the period immediately preceding the date of’ the injury. The Tribunal rejects the argument that the expression means that in the ordinary course the beginning date of the period must be twelve months prior to the date of injury. It is the Tribunal’s view that the reference to twelve months is a measure of the outer limit for the period.
That conclusion is supported by other provisions in section 25 which indicate alternative periods within the twelve month envelope which could be representative periods for the calculation of AWE. The Tribunal refers to section 25(5) which provides for a period shorter than twelve months when the person’s basic salary is affected by changes to awards, order, determinations or industrial agreements, and section 25(6), which provides that if the balance of the period for calculating AWE as a consequence of applying section 25(5) would be so short as the make it ‘impracticable’ to calculate the AWE or the period ‘would not fairly represent the rate per week’ the person was being paid prior to the injury, the calculation should be based on the whole period as if the variation took effect at the commencement of that period. Similarly, section 25(7) provides that if during the periods adopted under any of section 25(4)-(6) the person’s AWE was reduced because of a period of ‘illness or otherwise’, that period should be ignored in the calculation of AWE.
Comcare accepted that the period under consideration should be based on the figures in Attachment C to its submission dated 29 November 2013, that is, for a period of 46, not 52 weeks. It said it did so also on the basis that ‘The period calculated … and reflected in Attachment C properly and fairly reflects’ the requirement in section 25 that the period adopted must ‘fairly’ represent the average weekly earnings of the person.
The Tribunal notes that the period between April to early July 1984 does come within the exception in section 25(5), but not any of the other provisions in section 25(6)-(8). In other words it reflected an award increase. During that time, Mr Lowes was being paid his base salary as a Senior Constable. However, there is no evidence that the absence of higher duties was due to his illness so that section 25(7) applied to exclude any of that period. The evidence of sick leave absences does not cover sick leave in 1984. In addition, any possible illness of Mr Lowes during that period is excluded if account is taken of his statement of 19 February 2013 that: ‘Over the period 7 November 1983 to 4 July 1984, I was not [on] continuous duties as a sergeant because of other requirements.’ That statement does not suggest that Mr Lowes was on sick leave at that time.
Mr Lowes contended that the period should be 34 weeks which would exclude any period at which no higher duties allowance (HDA) was received. The Tribunal does not consider that would be a fair calculation of Mr Lowes’s AWE since it excludes a period when Mr Lowes was receiving no HDA and it does not reflect his average income over that 46 weeks. The calculation must be fair to both parties. Nor should the period be 52 weeks, in the absence of evidence of Mr Lowes’s designation during the balance of six weeks. Attachment C which is the best evidence before the Tribunal commences in the pay week ending 19 April 1984.
The Tribunal accepts, accordingly that the period should be 46, not 52 or 34 weeks and that this period more fairly represents Mr Lowes’s average earnings for the purpose of the calculation of AWE.
The hourly rate applicable for calculation of AWE
Mr Lowes claimed that he was on HDA continuously from 4 July 1984 to 26 February 1985. The HDA records for Mr Lowes in Attachment C indicate that he was paid HDA continuously from the pay dated 12 July 1984. As there was evidence that payments were in arrears by at least 14 days, and in light of Mr Lowes uncontested evidence that he was paid HDA from 4 July 1984, the Tribunal has accepted that he was paid HDA in the eight month period from 4 July 1984 to his date of injury, namely, 21 February 1985.
However, the amount of HDA each week varied considerably over the eight months. The number of days on which HDA was paid is shown in Attachment C and varied from two to ten working days in any fortnight. In other words Mr Lowes was not continuously being paid at either a Sergeant or Senior Sergeant rate throughout the period. For that reason the Tribunal has averaged the amount of HDA he received in order to assess a fair rate.
The result indicates that Mr Lowes received HDA spread over a period of roughly 34 weeks. If the period is taken over the 46 weeks shown in the AFP’s spreadsheet which includes a period from the fortnight ending on 19 April 1984 to the fortnight ending on 4 July 1984 when Mr Lowes was not being paid any HDA, the average rate of HDA would be less. Attachment C gave a weekly figure for HDA of $24.29. Due to difficulty for the Tribunal in reading some of the figures on Attachment C, it has not calculated the amount. On the assumption that the originals of the documents provided to the Tribunal are clearer than the photocopied versions provided for the hearing, Comcare should recalculate the figures to ensure the accuracy or otherwise of the average amount Mr Lowes received in HDA spread over the 46 weeks from the pay period ending on 19 April 1984.
In the negotiations which took place during the course of the hearing Mr Lowes conceded that he would be prepared to accept a rate of HDA for the purposes of calculating his AWE based on the rate for HDA at the level of Sergeant. The Tribunal has assumed that this concession was on the basis that Mr Lowes was on a Sergeant’s HDA rate throughout the period of eight months. This concession was not accepted by Comcare. Nor is it accepted by the Tribunal given the actual numbers of days on which HDA at either the Sergeant or Senior Sergeant rate was received, which from Attachment C is shown as 136 days in the 34 weeks. In the 46 weeks, assuming a 10 day working fortnight, that would mean that Mr Lowes was on HDA for 136, that is just over half, of the possible 250 working days of the 46 weeks, again assuming a 10 working day fortnight.
At the date of injury Mr Lowes’s substantive position was of Senior Constable, although he had been acting intermittently at a higher rate for the previous eight or so months. He had not been promoted at the date of injury. For that reason, he could not take advantage of section 25(5) – at least from April 1984 – since he had not been substantively promoted at the date of injury.
Accordingly the Tribunal finds that the hourly rate of HDA should be calculated based on the approach in paragraph 52 of these reasons. That is, the hourly rate of HDA be based on the average HDA spread over the period of 46 weeks. The Tribunal considers this is a fair approach.
Average weekly overtime hours
Mr Lowes’s records are incomplete. He located only two payslips, for the paydays of 21 March 1985 and 3 April 1985. These payslips indicated he had overtime of four hours at time and a half, and seventeen hours at double time during the twelve days covered. Mr Lowes contended, based on these figures, that his overtime should be averaged at 10 hours a week. However, the Tribunal finds that sample is not sufficiently representative to be accepted as representative of his overtime worked, not least because of the irregular nature of the hours worked and the occasions on which overtime was required.
Mr Lowes also produced evidence of his police notebook entries from February 1984 to February 1985, some of which refer to overtime. The Tribunal has difficulty accepting that these are sufficient for its purposes given Mr Lowes own evidence that he did not always record his overtime in his notebook entries. The Tribunal is aware that his application has been disadvantaged by the absence of contemporary records.
That left two options. The Tribunal could rely on Attachment C, which is the most contemporary evidence available to the Tribunal. Attachment C showed Mr Lowes’s overtime hours as 4.37 per week. Mr Lowes contended that this was too low a figure. Mr Lowes’s recollections of his overtime rate in the relevant period were that he would have performed about nine to ten hours’ overtime a week. However, he conceded in cross-examination that the period was highly variable depending on the irregular calls for escort duty, which in turn depended on when escort duty was required, being at irregular intervals. Moreover his recollection is based on matters which occurred over a quarter of a century ago.
The second option was to rely on section 25(8) of the 1971 Act and use figures for overtime of employees involved in comparable duties. Mr Lowes argued that two other AFP officers who, like him, had performed motor cycle escort duties, and had respectively 10 and 12 hours overtime each a week, should be his comparators. On that basis his overtime rate would have been 11 hours a week. One of those people was Mr Mayer. Attachment A to Comcare’s final submissions showed that in the leave history for 1980-1983 for Mr Mayer, his average overtime rate had been 9.22 hours a week.
The Tribunal considers that it is problematic to rely on the records of others performing escort duty given the variable and intermittent nature of such duties. In this context, performing motor-cycle escort duty is not akin to working in a team within a public sector department, when all members of the team are involved in similar clerical work on a particular project. In the latter case, it is more likely, for example, that the overtime of team members would closely match that of their colleagues provided they were at the same level, involved in similar tasks on a joint project. In those circumstances, their overtime rates are likely to be similar. That situation is not comparable to those members of the AFP performing motor-cycle escort duty for a range of dignitaries, with no pattern to their movements or need for the services.
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.
Conclusion
Mr 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.
I certify that the preceding 64 (sixty four) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member .....................[sgd].............................
Associate
4 February 2014
Date(s) of hearing 12 and 27 August 2013 Date final submissions received 6 December 2013 Counsel for the Applicant Stephen Whybrow Advocate for the Applicant Bill Redpath Solicitors for the Applicant Bulmers Lawyers Counsel for the Respondent Ben Dube Advocate for the Respondent Luke Woolley Solicitors for the Respondent Sparke Helmore
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