DMDV and Comcare (Compensation)
[2018] AATA 473
•20 February 2018
DMDV and Comcare (Compensation) [2018] AATA 473 (20 February 2018)
Division: GENERAL DIVISION
File Number(s): 2017/1764, 2017/3434 - 3448, 2017/4715
Re:DMDV
APPLICANT
AndComcare
RESPONDENT
Decision
Tribunal:L M Gallagher, Member
Date:20 February 2018
Place:Perth
The decisions under review are affirmed.
..........[sgd]...........................................................
L M Gallagher, Member
Catchwords
COMPENSATION - compensable injury under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – Commonwealth employee – involuntarily redundancy –pension under a superannuation scheme - statutory construction of subsection 20(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – interpretation of expression ‘retirement from his or her employment’ – ‘double dipping’ - whether retirement from employment must result from compensable injury for the purposes of subsection 20(1) – temporal connection only between retirement and employment – reviewable decisions affirmed
Legislation
Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation Act 1998 (Cth) – ss 4(1) – s14, ss 20(1), ss 20(2) – ss 20(3)
Cases
Brockett and Military Rehabilitation and Compensation Commission [2014] AATA 224
Hammerton and Comcare (1995) 21 AAR 204
Keen v Telstra Corporation Limited [2005] FCA 241
Lonergan and Comcare [2005] FCA 377
Lushington and Comcare [2001] AAT 310
Milliken and Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1991] AATA 292
Re McKernan and Comcare (2004) 85 ALD 508
Shorthouse and Military Rehabilitation and Compensation Commission [2014] AATA 528
Sullivan and Comcare [1998] AATA 907
Secondary Materials
Explanatory Memorandum, Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 (Cth) 20
Commonwealth, Parliamentary Debates, House of Representatives, 27 April 1988, 20, (Brian Howe)
REASONS FOR DECISION
L M Gallagher, Member
20 February 2018
INTRODUCTION
By way of background, the Tribunal notes a number of agreed factual matters which are set out in the T documents, the Supplementary T-Documents and the Tribunal registry records.
The Applicant (‘DVMV’) was employed by a Commonwealth organisation (the ‘Organisation’) from 28 October 2002 until 5 November 2014, when he was provided with a redundancy (T7) due to the Organisation’s changed operational requirements and no apparent opportunities for redeployment (T74).
On 11 June 2014, DVMV lodged a claim for workers’ compensation in relation to a condition with a date of injury of 10 June 2013 (T4) (‘the injury’).
On 19 August 2014, the Respondent (‘Comcare’) accepted liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) for the injury (T5).
At all relevant times, DVMV remained incapacitated for work and compensation was payable under the SRC Act.
As a result of the redundancy on 5 November 2014, DVMV received a pension under a superannuation scheme.
On 16 February 2015, Comcare advised DVMV that it had recently received information from his superannuation authority indicating DVMV was in receipt of a superannuation benefit and that periods of incapacity determined between 6 November 2014 and 11 February 2015 would be re-determined in accordance with section 20 of the SRC Act to take into account any employer-funded portion of that superannuation benefit (T20).
On 17 September 2015, DVMV sent an email to Comcare to the effect that he believed he had not been ‘retired’ from his employment in accordance with section 20 of the SRC Act because he had been made redundant. The email relevantly stated (T35):
“…I came across a determination letter from you dated 16/2/2015 about [sic] Superannuation determination.
I would like the decision in that letter to be reviewed. The letter notes that ComCare [sic] received information from ComSuper about a superannuation benefit I started receiving after I was made redundant in November last year. The letter makes reference to sections 20, 21 and 21A and states that a formula was applied because of “If an employee is retired from employment”. I am confused now, when re-reading the letter because I am not retired from work, but was instead made redundant and as part of my incapacity and rehabilitation am being supported to regain employment. I am only 50 years old and not of retirement age.
Can you please clarify this for me?”
…
On 10 November 2015, Comcare sent an email to DVMV regarding its view that the word ‘retired’ in section 20 of the SRC Act included circumstances of redundancy, referring to the decision of the Federal Court in Keen v Telstra Corporation (2005) FCA 241; 83 ALD 17 (the ‘Keen decision’), as follows (T35):
“In Keen v Telstra Corporation Limited (2005), the applicant sustained a strain injury in employment in 1991 and experienced recurrent pain in the following years. In December 1997 she was compulsorily retired and received a redundancy payment and a lump-sum pay-out of her non-preserved superannuation. The applicant submitted that her retrenchment should not be treated as retirement for the purposes of s 21(1). The Court held that this phrase has wide meaning and included situations of involuntary retrenchment:
24[1]. Having regard to this legislative history and the scope of the legislation regulating “retirement” in the Australian Public Service in force at the time the Act was enacted, namely 1988, it is difficult to avoid the conclusion that the expression “retires voluntarily, or is compulsorily retired” was intended to have a wide operation and to include circumstances where an employee was dismissed from employment because the employee was redundant. This would be so even if the applicant’s employment was not directly affected by this legislation at the time she was made redundant. Once the width of the expression is recognised, it follows it comprehends any person to whom the Act applies even if that person’s employment was not then directly regulated by legislation dealing with termination (including redundancies) in the Australian public sector.
Therefore, even tho [sic] you were made redundant [sic] for the purposes of the legislation it refers to retired hence why the letter states retired from the commonwealth [sic]. The calculation of your ongoing incapacity entitlement under Section [sic] 20 of the SRC Act is therefore correct.”
[emphasis added]
[1] Paragraph 24 in FCA 241 (and paragraph 25 in (2005) 83 ALD 17).
On 17 November 2015, DVMV sent an email to Comcare in response to its email dated 10 November 2015 (referred to in paragraph 9 above) (T38) and referred to a subsequent decision of this Tribunal to the effect that subsection 20(1) of the SRC Act applies only where an employee’s retirement from employment, of itself, is as a result of the compensable injury. DVMV’s email states, relevantly:
“There are more recent cases than the one you cite from…“Brockett and Military Rehabilitation and Compensation Commission [2014] AATA 224 (17 April 2014)”[2] reports a situation nearly identical to my own in the sequence of events and the source of the superannuation…
[2] Referred to throughout this decision as ‘the Brockett decision.’
52. If there was any doubt about the meaning of the words used in both limbs of s. 20 of the SRC Act taking into account their context, the Explanatory Memorandum removes any such doubt. Plainly, the intention of Parliament in enacting s. 20 of the SRC Act was to prevent an employee from receiving payments under the SRC Act for incapacity, then retiring either voluntarily or compulsorily as a result of the work injury, and being paid again for that invalidity for work out of a superannuation pension. The words used in the Explanatory Memorandum do not displace the statutory text nor do they contradict it in any way. In fact, as I have indicated by my analysis of the statutory text in the context in which it appears in the SRC Act, it is entirely consistent.
CONCLUSION
53. Having first conducted the statutory construction exercise regarding s. 20 of the SRC Act, I have found that to fall within the first limb of s. 20(1), the employee must retire from the employment out of which, or in the course of which, the injury arose. Even further, the retirement must result from the injury. The expression his or her employment is not a reference to other employment in which the employee was engaged at the same time. That construction is consistent with the words of the statute in their literal and grammatical sense, and it is plainly consistent with the intention of its operation evidenced by the Explanatory Memorandum and Second Reading Speech of the Minister.
54. I have also found that on its literal and grammatical construction, in context, the reference in the second limb of s. 20(1) to receiving a pension under a superannuation scheme as result of the employee’s retirement means that to fall within the section, the employee must have received payment from a superannuation scheme because of the retirement which resulted from the injury the employee received out of, or in the course of, his or her employment. Again, this construction is entirely consistent with the intention of the provisions in that section as evidenced by the Explanatory Memorandum and the Second Reading Speech of the Minister.
55. The consequences of my construction of s. 20 of the SRC Act are that for it to apply to Ms Brockett, she must necessarily have retired from her role as a reservist in the Defence Force as a result of her injury incurred while carrying out her duties associated with Defence Force employment; and she must have received compensation from the MSBS as a consequence of her retirement. The fact that Ms Brockett was made redundant from her full-time employment with DHA some four years after the injury occurred plays no part whatsoever as far as s. 20 of the SRC Act is concerned. It is a totally unrelated event.
56. I did not have before me any evidence of a superannuation payment being made to Ms Brockett upon retirement from the Defence Force. I did have evidence of her retirement from the Defence Force due to the injuries she sustained and her subsequent inability to meet the required medical standard. If Ms Brockett in fact received a payment under the MSBS, then that payment should be taken into account as s. 20(1) would apply to her. The superannuation payment she received from the PSS upon redundancy from DHA does not invoke the application of s.20 (1) and therefore it cannot affect any incapacity payments she has received.
My involuntary redundancy was not as a result of the psychological injury that I received at [the Organisation]. My situation neatly mirror the conclusions I have cited from the 2014 case, and supports my conclusion that the payments that PSS makes to me are not relevant in relation to my ComCare [sic] incapacity payment. I conclude that a recalculation of incapacity payments is required.[3]
[emphasis added]
[3] Comcare has interpreted this email, in particular the final sentence, as a request for it to conduct an independent review of the List 1 determinations (refer to T44).
On 23 November 2015, Comcare wrote to DVMV to acknowledge his request for reconsideration dated 17 November 2015 (being the email referred to in paragraph 10 above) of its determinations dated 18 February 2015, 4 March 2015, 13 May 2015, 27 May 2015, 10 June 2015, 24 June 2015, 5 August 2015, 19 August 2015 and 11 November 2015 (together, the ‘List 1 determinations’ [at T25 – T31, T33, T34, and T36])), which, for periods from 6 November 2014 onwards, accepted incapacity under section 20 of the SRC Act (T39)[4].
[4] For periods prior to 6 November 2014, Comcare accepted incapacity under section 19(2) of the SRC Act.
For historical clarity and completeness, the List 1 determinations consist of the following:
Date of determination[5]
T document reference
Reconsideration reference number[6]
AAT Application No.
18 February 2015
T23, T25
43970180
2017/1752
(Extension of time)[7]
4 March 2015
T26, T27
43970191
13 May 2015
T28
43970234
27 May 2015
T29
43970275
10 June 2015
T30
43970383
24 June 2015
T31
43970421
5 August 2015
T33
43970639
19 August 2015
T34
43970756
11 November 2015
T36
43970785
[5] All List 1 determinations have the Comcare claim reference number 1164896/2.
[6] Reconsideration of all List 1 determinations is dated 4 December 2015 and appears at T44.
[7] Refer to paragraph 18 of this decision.
On 4 December 2015, a Senior Review Officer for Comcare wrote to DVMV to advise that she had reconsidered the List 1 determinations and, after evaluating the evidence, decided that the determinations were correct and affirmed them (‘reviewable decision for the List 1 determinations’ dated 4 December 2015 at T44). The Senior Review Officer’s reasons for her decision included, relevantly:
(a)DVMV relies upon the Brockett decision to support his assertion that as his involuntary redundancy was not as a result of his compensable condition, the payments he receives from his superannuation fund are irrelevant to the calculation of his incapacity entitlements.
(b)Section 4 of the SRC Act provides that for the superannuation scheme to be considered, it must have been the fund into which your employer (the Organisation) contributed to.
(c)Ms Brockett was injured while working for the Australian Defence Force, and the superannuation fund in question was from the fund contributed to by the Department of Health, not the Australian Defence Force. In DVMV’s circumstances, the superannuation fund he is receiving the pension from is the fund that his employer (the Organisation) contributed to during his employment with them.
(d)In relation to ‘retired’ from his employment, Comcare considers most methods of separation meet the definition of ‘retired.’ There is no requirement within section 20 of the SRC Act, for the separation to be related to the compensable injury for this section to apply to the calculation of his incapacity payments.
On 30 January 2017, DVMV wrote to Comcare seeking reconsideration of a determination dated 23 November 2016, which applied section 20 of the SRC Act to the calculation of his incapacity payments, as it had to previous incapacity periods following his redundancy from the Organisation (T73). DVMV requested that should the determination dated 23 November 2016 be “reversed” then “Comcare should then apply it to prior incapacity payment determinations made for the same reasons.[8]” DVMV gave the following reasons for his reconsideration request:
(a)Section 20(1) of the SRC Act is irrelevant to the calculation of his incapacity payments in light of the Brockett decision, which demonstrates that subsection 20(1)(a) of the SRC Act does not apply unless retirement is due to the compensable injury.
(b)His retirement was not due to his compensable injury, as was the case with Ms Brockett.
(c)This request for reconsideration was different to that resulting in Comcare’s reviewable decision of 4 December 2015 (regarding the List 1 determinations) because this time he was making the request in the proper form, he was asking Comcare to consider specific paragraphs of the Brockett decision and he was submitting documentary evidence regarding the reasons for his retirement (refer to T74 and paragraph 2 above in this regard).
[8] Those prior incapacity payment determinations being those described in the table representing the ‘List 2 determinations’ (refer to paragraph 16 of this decision).
On 31 January 2017, Comcare wrote to DMDV to acknowledge his request for reconsideration dated 30 January 2017 (referred to in paragraph 14 above) of its determinations dated (together, the ‘List 2 determinations’ [at T46, T48, T49, T52 – T57, T60 – T63, T65 – T67]), which accepted incapacity under section 20 of the SRC Act (T76).
For historical clarity and completeness, the List 2 determinations consist of the following:
Date of determination[9]
T document reference
Reconsideration reference number[10]
AAT Application No.
23 December 2015
T46
49348650
AAT 2017/1764
6 January 2016
T48
49347001
20 January 2016
T49
49347067
17 February 2016
T52
49347161
2 March 2016
T53
49347231
16 March 2016
T54
49347253
13 April 2016
T55
49347357
8 June 2016
T56
49347390
22 June 2016
T57
49347441
20 July 2016
T60
49347464
3 August 2016
T61
49347552
17 August 2016
T62
49347567
31 August 2016
T63
49348353
28 September 2016
T65
49348397
26 October 2016
T66
49348418
23 November 2016
T67
49348458
[9] All List 2 determinations also have the Comcare claim reference number 1164896/2.
[10] Reconsideration of all List 2 determinations is dated 10 February 2017 and appears at T77.
On 10 February 2017, a Senior Review Officer for Comcare wrote to DVMV to advise that she had carefully considered the evidence and concluded that the original determinations (being the List 2 determinations) were correct and affirmed them (‘reviewable decision for the List 2 determinations’ dated 10 February 2017 at T77). The Senior Review Officer’s reasons for her decision included, relevantly:
(a)In Ms Brockett’s case, she was injured while working for the Australian Defence Force, and the superannuation fund in question was from the fund contributed to by the Department of Health, not the Australian Defence Force.
(b)As the superannuation received was therefore not from a fund contributed to by the employer Ms Brockett was working for when injured, this superannuation was not able to be considered for the purposes of section 20 of the SRC Act.
(c)It was noted in paragraph 56 of the Brockett decision that had Ms Brockett received a payment from the superannuation fund contributed to by the Australian Defence Force, then this money would be considered in the calculation of subsequent incapacity payments.
(d)In DVMV’s circumstances, the superannuation fund from which he is receiving the pension is the fund that his employer (the Organisation) contributed to during his employment with them, which differs from Ms Brockett’s circumstances.
(e)As such, the Senior Review Officer does not consider the findings of the Brockett decision are binding on her when considering DVMV’s entitlement to incapacity subsequent to his cessation of employment.
(f)There is no requirement within section 20 of the SRC Act for the cessation of employment to be related to the compensable injury for section 20 of the SRC Act to apply to the calculation of DVMV’s subsequent incapacity benefits.
On 29 March 2017 DVMV applied to the Tribunal for:
(a)An extension of time for review of the reviewable decision for the List 1 determinations (AAT 2017/1752), which was granted by order the Tribunal dated 28 July 2017.
(b)A review of the reviewable decision for the List 2 determinations (T2) (AAT 2017/1764). Attached to the application for review of the reviewable decision of the List 2 determinations are detailed reasons for the application which are addressed under the heading ‘Consideration’ below.
On 9 August 2017, having been granted an extension of time to do so (refer to sub-paragraph 18(a) above), DVMV lodged with the Tribunal an application for review of the reviewable decision for the List 1 determinations (ST1). Attached to the application for review of the reviewable decision of the List 1 determinations are detailed reasons for the application which are addressed under the heading ‘Consideration’ below.
On 13 September 2017, the Tribunal issued a direction that application numbers AAT 2017/1764, AAT 2017/4715[11] and numerous additional AAT applications numbers[12] be joined and programmed together, the application number referring to all combined determinations and hence the present application before the Tribunal being application number AAT 2017/4715.
[11] Application number AAT 2017/4715 represents the present application encompassing the reviewable decision for the List 1 determinations combined with the reviewable decision for the List 2 determinations.
[12] Prior to each of the determinations listed in the List 1 determinations and the List 2 determinations being grouped and ultimately joined, each of the individual determinations across those two lists were allocated an individual AAT reference number by the Tribunal, which by the Tribunal’s direction dated 13 September 2017, were then joined and programmed together.
RELEVANT LEGISLATION
Section 20 of the SRC Act provides for compensation for injuries where an employee is in receipt of a superannuation pension. Subsection 20(1) of the SRC Act provides:
(1) Compensation payable to an employee who is incapacitated for work as a result of an injury is determined in accordance with this section if:
(a) the employee is retired from his or her employment (whether the employee retired voluntarily or was compulsorily retired); and
(b) the employee receives a pension under a superannuation scheme as a result of the employee's retirement.
(2) Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated.
(3) The amount of compensation is the amount worked out using this formula:
[emphasis added]
Relevantly, subsection 4(1) of the SRC Act defines “superannuation scheme” as follows:
“superannuation scheme” means any superannuation scheme under which, or retirement savings account to which, the Commonwealth, a Commonwealth authority or a licensed corporation makes contributions on behalf of employees and includes a superannuation or provident scheme established or maintained by the Commonwealth, a Commonwealth authority or a licensed corporation.
[emphasis added]
Issue for determination
The various relevant determinations by Comcare set out above have the practical effect of reducing the overall amount of weekly compensation calculated under subsection 20(3) of the SRC Act. DVMV is of the view that “these reductions are the actions that have led to the present dispute” (refer to paragraph 8 of DVMV’s written submissions dated 12 October 2017).
DVMV disputes that subsection 20(1) of the SRC Act applies to the calculation of his incapacity payments for his compensable injury because the cessation of his employment was not due to his compensable injury.
Comcare, however, is of the view that for subsection 20(1) of the SRC Act to apply, there is no requirement for DVMV to have retired from his employment as a result of a compensable injury.
Comcare submits that, in turn, there is an issue (to the extent it is an issue before the Tribunal) of whether the words “involuntary redundancy” mean “compulsorily retired” in accordance with subsection 20(1)(a) of the SRC Act (refer to paragraph 14 of the Respondent’s Statement of Facts, Issues and Contentions dated 2 August 2017).
DVMV disagrees with Comcare’s articulation of the further issue at paragraph 26 above and instead submits (at paragraph 14 of his written submissions dated 12 October 2017) that the subsequent issue is (to the extent it is an issue before the Tribunal) whether the term ‘retirement’ in subsection 20(1) of the SRC Act, in its wide operation, was intended to apply only to situations in which employment ceased voluntary or compulsorily in consequence of the workplace injury.
Respectfully, in light of the Federal Court decision of Justice Moore in the Keen decision, the Tribunal considers that it is settled that the expression “retired involuntarily or is compulsorily retired” for present purposes comprehends and includes circumstances of involuntary redundancy[13] and it has no cause to disturb the Federal Court’s finding.
[13] Refer to paragraphs 21 and 24 of the Keen decision, which addressed the expression “retired involuntarily or is compulsorily retired” in subparagraph 21(1) of the SRC Act, which is in similar terms to subsection 20(1) of the SRC Act.
Therefore, the sole issue before the Tribunal is whether, for subsection 20(1) of the SRC Act to apply, subsection 20(1) of the SRC Act itself requires that DVMV’s retirement from his employment[14] be caused by his compensable injury.
[emphasis added]
[14] In light of the Keen decision referred to at paragraph 28 above, the Tribunal considers that the expression in subsection 20(1) of the SRC Act “retirement from his employment” includes DVMV’s circumstances of involuntary redundancy.
evidence
The matter was heard in Perth on 4 December 2017. DVMV appeared in person and was self-represented. Comcare was represented by Counsel, Mr Joseph Lenczner, instructed by Ms Rosemary Waldron-Hartfield from Moray & Agnew Lawyers.
The Tribunal received the following evidence:
·Applicant’s written submissions dated 12 October 2017 (A1);
·a 206 page set of T-Documents, filed with the Tribunal on 10 May 2017 (T1 – T78) (R1);
·a 7 page set of Supplementary T-Documents filed with the Tribunal on 21 September 2017 (ST1 – ST12) (R2); and
·the Respondent’s Statement of Facts, Issues and Contentions dated 2 August 2017 and filed with the Tribunal on 2 August 2017 (R3).
The Tribunal has also reviewed and taken into account DVMV’s written submissions in support of his applications for review (refer to T2 pages 7 to 9 and to ST1 pages 3 to 6), which it treats as part of DVMV’s written submissions, along with A1). The Tribunal notes that at hearing, the parties had no issue with this being the case.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
Parties’ written and oral submissions
The parties’ contentions and related submissions in support, as presented in their respective written submissions (A1, R3 and DVMV’s additional written submissions referred to in paragraph 32 above) and (where not otherwise stated) orally at hearing, are set out below.
DVMV’s submissions regarding legislative intent
DVMV contends that for subsection 20(1) of the SRC Act to apply, “a person must retire from employment as a result of a compensable injury and must also obtain an invalidity pension as a consequence of that retirement” (A1, page 15, paragraph 15). DVMV submitted that in reaching this view, he did not find the words of subsection 20(1) of the SRC Act “at all plain” and these words have required clarification over time (from secondary sources).
DVMV noted that his own involuntary redundancy from the Organisation (a form of retirement) was entirely unrelated to his compensable injury and he has not obtained an invalidity pension (A1 page 15, paragraph 15).
DVMV has made the following submissions in support of his contention at paragraph 35 above:
Prevention of “double dipping”
(a)That the retirement from Commonwealth employment must be as a result of the compensable injury was the “original and present intent” of Parliament regarding subsection 20(1) of the SRC Act was a test “to prevent a particular type of double dipping” by receiving two payments from the Commonwealth for the same reason (the incapacity/invalidity) (A1, page 15, paragraphs 15 and 17, subparagraph 17.1).
(b)The intention referred to in subparagraph 37(a) above is evident in:
(i)Clause 20 of the “SRC 1988 Explanatory Memorandum”[15], which is entitled “Compensation for injuries resulting in incapacity where employee is in receipt of superannuation pension” and states (A1, page 5, subparagraph 17.2:
[15] The Tribunal notes that DVMV’s reference to clause 20 of the “SRC 1988 Explanatory Memorandum” is, in substance, clause 20 of the Explanatory Memorandum to the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988, which provided for the repeal of the Compensation (Commonwealth Government Employees) Act 1971. The Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth) was then superseded by the Safety, Rehabilitation and Compensation Act 1988 (Cth).
“This clause provides rules for the calculation of weekly benefits payable to an employee who, as a result of an injury retires involuntarily or is retired from employment after the commencing day and receives a superannuation pension.”
[emphasis added]
(ii)The SRC Act 1988 Second Reading Speech[16], which twice notes that the 1988 Bill was concerned with superannuation pensions arising out of invalidity retirement (A1, page 5, subparagraph 17.3):
[16] The Tribunal notes that DVMV’s reference to the “SRC Act 1988 Second Reading Speech” is in substance a reference to the Second Reading Speech for the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 (dated 27 April 1988, spoken by Mr Howe, (then) Minister for Social Security – ( Bill will also seek to reduce the unreasonable costs associated with work-related injuries by introducing measures to prevent double dipping by employees using sick leave payments or superannuation entitlements while on compensation. For example, many employees who have been retired on invalidity grounds under the current legislation enjoy benefits under both compensation and superannuation schemes at a rate considerably in excess of their previous income. Special transitional provisions relating to the combined superannuation and compensation benefits payable to employees who have been invalided out of employment are contained in the Bill.”
[emphasis added]
(c)On the basis that the intent of subsection 20(1) of the SRC Act was to prevent a particular type of double dipping, it follows from the terms of the subsection itself that (A1, page 7, paragraph 19 and related subparagraphs) for double dipping to occur, there must logically be two payments arising from one cause/event:
(i)The one cause/event being “incapacitated for work as a result of an injury;” and
(ii)The two payments being 1) compensation payable (the compensation and the incapacity having a clear causation connection) and 2) a pension under a superannuation scheme as a result of the employee’s retirement (the pension also being causally connected to the incapacity in that the retirement from work itself must be due to the incapacity giving rise to compensation under the SRC Act).
SRC Act 2007 amendments to subsection 20(1) preserved intent of section
(d)DVMV made a number of observations regarding the words used in subsection 20(1) in “the original 1988 legislation”[17] (A1, page 5, subparagraph 18.2) as compared to the “2007 amendments”[18] to subsection 20(1) of the SRC Act, the latter of which in his submission preserved the original intent of subsection 20(1), which “continue[s] to the present day” (A1, page 5, paragraph 18, subparagraph 18.1.
(e)DVMV ultimately contended that the 2007 amendments did not significantly alter the words, meaning or intention of subsection 20(1), other than a slight rearrangement of the order of the words (A1, page 6, subparagraph 18.2), the introduction of “labels (a) and (b) for the two limbs of s20(1)” (A1, page 6, subparagraph 18.2) and “fix[ed] a minor problem identified in Lonergan and Comcare [2005] FCA 377 (‘the Lonergan decision’) about incapacity (being) on the actual date of retirement and the calculation of the rate of superannuation deduction from the incapacity payments, none of which were “relevant to the issues at hand” (A1, page 6, subparagraph 18.3).
[17] The Tribunal notes that DVMV’s reference to “the original 1988 legislation” is a reference to the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth), which came into effect on 30 June 1992.
[18] The Tribunal notes that DVMV’s reference to the “2007 amendments” to subsection 20(1) the SRC Act refer to the legislative amendments to the SRC Act which came into effect on 13 April 2007 (Act No. 54 of 2007 as amended) and that the wording of that subsection as amended is as extracted at paragraph 21 of this decision.
Comcare’s submissions in response regarding legislative intent
In response to DVMV’s submissions regarding the legislative intent of subsection 20(1) of the SRC Act and the prevention of “double dipping,” Comcare submitted that (R3, page 3 paragraph 18):
“No requirement is imposed by section 20(1) [of the SRC Act] that a retirement take place as a result of an injury [referring to a compensable injury], the employee retired from his or her employment, and the employee receives a pension under a superannuation scheme as a result of the employee’s retirement. Section 20 [of the SRC Act] does provide in terms or by implication that the injury must have caused the retirement or that the retirement has resulted from the injury.”
In addition, Comcare submitted that “[i]t was not suggested by Heerey J [in the Lonergan decision] that the retirement had to result from the compensable injury (R3, page 4, paragraph 20).
At hearing, Mr Lenczner for Comcare orally submitted that:
(a)It was not the SRC Act’s intention to prevent “a particular type of double dipping” as DVMV had put it.
(b)Comcare regarded clause 20 (extracted at subparagraph 37(b)(i) above) as part of a subset of issues generally dealing with double dipping, but this “doesn’t overcome the (plain, clear) language of the legislation.”
(c)The words “for example” in the Second Reading speech (extracted at subparagraph 37(b)(ii) above) make it clear that the example given in the sentence that follows is just an example and is not setting a requirement that there needs to be a relationship between the compensable injury and the retirement itself.
(d)As to DVMV’s argument regarding clause 20 (noting that the clause also states “or is retired from employment after the commencing day” and his argument regarding the Second Reading Speech, which focuses on those employees who are retired on invalidity grounds:
(i)These two arguments are not underpinned by the same statutory intent, noting that subsection 20(1) of the SRC Act does not relate to, or provide for pension arising out of invalidity retirement.
(ii)The focus in either case (or clause 20 or the extract from the Second Reading Speech) is not on whether an employee is retired due to injury.
(iii)DVMV is (mistakenly) of the view that “double dipping” ties back to payments stemming from the compensable injury, rather than from whether a benefit obtained under a superannuation scheme exceeds the previous income (which is a better explanation of the Second Reading speech) and hence (mistakenly) believes that this is how Ms Brockett[19] succeeded.
(e)Further, the 2007 amendments to the SRC Act (refer to subparagraphs 37(d) and 37(e) above) also do not provide for a requirement that there needs to be a relationship between the compensable injury and the retirement itself.
(f)Referring to matters raised by DVMV at paragraph 37 above, if there is a “double dipping” issue, it is one that arises from the employee’s employment, not from the employee’s injury.
[emphasis added]
[19] The Tribunal’s consideration of the Brockett decision is at paragraphs 70 to 74 below.
In the context of paragraphs 38 to 40 above, Mr Lenczner asked the Tribunal the (rhetorical) question of “why should a person who retires as a result of an injury (as defined) be in a different position from someone who just retires, when both persons are receiving incapacity payments at the time of retirement, and are both in receipt of a superannuation payment (following their retirement) but only one of those people are retiring as a result of the compensable injury?”
Parties submissions regarding relevant authorities
The parties have each relied upon a number of authorities in support of their respective arguments outlined at paragraphs 34 to 41 above. The parties submissions regarding these authorities, both in written submissions and put orally at hearing, are as follows:
Shorthouse and Military Rehabilitation and Compensation Commission (2014) AATA 58 (‘the Shorthouse decision’) Comcare, its written submissions (R3, page 3, paragraph 19) stated the following in relation to the decision of Deputy President IR Molloy in the Shorthouse decision:
“19. In Shorthouse…in paragraph 2 of the reasons [DP Molloy said that] the application of sections 19 and 20 of the SRCA depended on whether “Mr Shorthouse was incapacitated for work as a result of injury at the time of his medical discharge from the Royal Australian Air Force” and said that it was “not necessary that there be a causable link between the incapacity and the retirement, only a temporal link” (paragraph 19). As at the applicable time (24 May 2001 – paragraph 2 of the reasons) Deputy President Molloy identified the relevant provision of the SRCA as section 20(1) of the SRCA (see below) which was in relevantly similar terms as it is presently:
“(1) This section applies to an employee who, being incapacitated for work as a result of an injury, retires voluntarily or is compulsorily retired, from his or her employment at any time after the commencement of this section and, as a result of that retirement, received a pension under a superannuation scheme” (cited by Deputy President Molloy at paragraph 17).
[emphasis added]
The Tribunal notes that DVMV made no submissions in relation to the Shorthouse decision.
Lonergan and Comcare [2005] FCA 377 and Hammerton and Comcare (1995) 21 AAR 204
At hearing, Mr Lenczner for Comcare submitted that the Lonergan decision is “a Federal Court decision” that is “more important than [DVMV] says it is” (referring to DVMV’s submission as to the (ir)relevance of the Lonergan decision at subparagraph 37(e) above). In this regard, Mr Lenczner submitted further that:
(a)Until the 2007 amendments to the SRC Act (which came into effect on 13 April 2007[20], subsection 20(1), as it was then worded[21], there was Federal Court authority, being the Lonergan decision, for the proposition that the causative link in question was not required.
(b)Specifically, in paragraph 21 of its written submissions (R3, page 4), Comcare referred to paragraph 27 of the Lonergan decision, where Justice Heerey cited with approval the decision of Deputy President Forgie in Hammerton and Comcare (1995) 21 AAR 204 (‘the Hammerton decision’) at page 222 as follows:
“… neither [of ss 20(1) nor 21(1)] is providing that there must be a causative link between the incapacity for work as a result of injury and retirement. Rather, they are providing only a temporal link between the incapacity and the retirement.”
(c)Mr Lenczner submitted for Comcare that this proposition also applies to subsection 20(1) of the SRC as it reads currently. Mr Lenczner said that “you couldn’t have [DVMV’s] argument [regarding the need for the causative link] as succeeding” that is, you could not have to have the incapacity caused by the compensable injury as the (same) incapacity causing the retirement for subsection 20(1) to have effect, because it is unlikely that the legislation ever intended for section 20 to operate only if a compensable injury resulted in retirement. Mr Lenczner added that it would be hard to imagine a situation where a person has an incapacity, and that incapacity “goes quiet” and then that person “gets retired due to the injury.”
(d)Mr Lenczner submitted further that:
(i)Comcare’s contention at subparagraph 45(c) above is confirmed by the Explanatory Memorandum (refer to subparagraph 37(b)(i) and footnote 15 above), which explains the Lonergan decision, a decision which “has nothing to do with the injury [having to] cause the retirement” and rather found that the use of the present tense ‘being’ requires the incapacity for work to exist at the same point in time as the retirement.
(ii)Clause 20 of the Explanatory Memorandum referred to and relied upon by DVMV (refer to subparagraph 37(b)(i) and footnote 15 above) is “just a subset or example of the things to which clause 20 applies.”
[20] Refer to footnote 18 above.
[21] As extracted at paragraph 43 above.
DVMV, in subparagraph 20.2 of his written submission (A1, page 8) states in relation to the Hammerton decision that it is “constrained to the text of s20(1) but does not mention or consider the 1988 Explanatory Memorandum and Second Reading Speech:
“56[22]. Looking at the words of sub-sections 20(1) and 21(1), it seems to me that neither is providing that there must be a causative link between the incapacity for work as a result of an injury and retirement. Rather, they are providing only a temporal link between the incapacity and the retirement.”
Sullivan and Comcare (1998) AATA 907 and Re McKernan and Comcare (2004) 85 ALD 508
[22] Referring to paragraph 56, in part, of the Hammerton decision.
In paragraph 22 of its written submissions (R3, page 4), Comcare submitted that the Tribunal in Sullivan and Comcare (1998) AATA 907 (‘the Sullivan decision’) agreed with the passage in Hammerton (extracted at paragraph 45 above) at paragraph 65, as did the Tribunal in Re McKernan and Comcare (2004) 85 ALD 508 (‘the Re McKernan decision’), at paragraph 26 of the reasons.
The Tribunal notes that no submissions were made by DVMV in relation to the Sullivan and Re McKernan decisions.
Comcare submits that the Shorthouse, Hammerton, Lonergan, Sullivan and Re McKernan decisions support the proposition that there is no requirement that for subsection 20(1) of the SRC Act to apply, there must exist “a causative link between the incapacity and retirement.” Comcare submits that the section merely requires that compensation be payable to an employee who has retired, the employee is incapacitated for work as a result of an injury and that the employee is in receipt of a pension under a superannuation scheme as a result of the employee’s retirement, noting that in its view, all of these requirements are satisfied in the present instance (R3, page 4, paragraphs 23 and 24).
In response to Comcare’s submissions at paragraph 49 above, DVMV submitted that:
(a)DVMV agrees with Comcare that the five cases cited by it (being the Shorthouse, Lonergan, Sullivan, Re McKernan and Hammerton decisions) did indeed conclude that there was no need for a causative link between incapacity and retirement, but submits that the five cases did not comprehend subsection 20(1) of the SRC Act as being a double dipping test and therefore reached unsupportable decisions about subsection 20(1) ((A1, page 8, paragraph 20 and subparagraph 20.3).
(b)The five cases referred to in subparagraph 50(a) above “do not reference all relevant SRC Act s20 materials” and that [n]one of the cases cited attempt a statutory construction of subsection 20(1)” (A1, page 8, subparagraph 20.4).
In response to DVMV’s submission at subparagraph 50(b) above, Mr Lenczner for Comcare stated:
(a)DVMV’s notion of the “prevention of a particular kind of double dipping” stems from DVMV’s submission at paragraph 21.5 of his written submissions (A1, page 11), which states:
“The Applicant has attempted to calculate the value of an invalidity pension if he had obtained one from his superannuation fund PSS. He estimates that it would be more than double his current pension, and the sum of invalidity pension + incapacity payments would have been in excess of his former salary.”
(b)DVMV has difficulty with the fact that Comcare has not argued that “the prevention of a particular kind of double dipping” is the purpose of section 20 “in any way.” Mr Lenczner said that Comcare is not concerned with “double dipping” for present purposes and rather, it is concerned with the plain wording of the legislation.
(c)Comcare “sees a double dipping argument” regarding the incapacity payments and the superannuation pension payments not arising out of the same employment, (a “Brockett[23] situation”) but that is not the case here.
(d)While the words “double dipping” are used in the Second Reading Speech and by senior Member Fice in the Brockett decision,[24] the “double dipping” argument is “stupid in this context”.
Lushington and Comcare (2001) AATA 310 and Brockett and Military Rehabilitation and Compensation Commission [2014] AATA 224
[23] The parties submissions regarding the Brockett decision are set out at paragraphs 56 to 63 of this decision.
[24] Refer to paragraph 57 below.
DVMV contends that there are two cases that “do comprehend that s20(1) is a test for a particular kind of double dipping” and therefore support his argument (A1, page 9, paragraph 21), namely:
(a)Lushington and Comcare (2001) AATA 310 (‘the Lushington decision’); and
(b)the Brockett decision.
DVMV submitted that the Lushington decision is relevant (A1, page 9, subparagraph 21.1). DVMV goes on that “it concerns SRC Act s21, which is the ‘superannuation as a lump sum’ counterpart to s20’s ‘superannuation as a pension.’ Both sections are tests for double dipping.” Deputy President’s Burns’ decision in part states [bold emphasis added by Applicant]:
44. Paragraph (a) of the definition of superannuation amount comes into play if the subject superannuation scheme “identifies” a part of the lump sum “as attributable to” the contributions made under the scheme by the employer. The above words need to be defined and the Tribunal now turns to defining the words in question. In doing so, the Tribunal is mindful that consideration must be given to the words in their context and having regard to the purpose of s 21 in its context against the background of the purpose of the Act itself. While the Act itself is beneficial legislation, it is apparent that s 21 is remedial in nature and aimed at preventing double dipping by employees using superannuation entitlements whilst on compensation where both have their origin in the one injury (Second Reading Speech, Hansard, 27 April 1988).”
[emphasis added]
Whilst not expressly submitted by DVMV, the Tribunal takes DVMV’s emphasis on the final sentence (in part) of the extract at paragraph 53 above to be an emphasis made in support of his primary contention that both the superannuation entitlement and the incapacity payment need to have their origin in the one injury for section 20(1) of the SRC Act to apply.
At hearing, Mr Lenczner for Comcare made the following oral submissions regarding the Lushington decision:
(a)The Lushington decision has nothing to do with there being a relationship between the injury and a person’s retirement.
(b)Rather, the Lushington decision was concerned with the analysis of a superannuation amount, specifically, how one calculates the attribution.
(c)The relevant legislation was intended to ensure that regard be had to the element of superannuation contribution by the employer, i.e. that this amount be brought into account. It is in that process that Deputy President Burns refers to the Second Reading Speech.
DVMV’s submissions regarding the Brockett decision
DVMV submitted that the Brockett decision “is the first, and perhaps the only decision, in which subsection 20(1) was clarified by making a complete statutory construction of s20(1) [of the SRC Act] from all available materials – 1988 legislation, 1988 Explanatory Memorandum, and 1988 Second Reading Speech by then Minister Howe, and the 2007 amended version of 2014 (A1, page 9, subparagraph 21.2).
DVMV also submitted that in relation to the Brockett decision, Senior Member Fice considered “all of these materials” (being those listed in paragraph 56 above), and that the analysis in paragraphs 50 to 52 of the Brockett decision is “highly relevant” to the present application, namely (A1, page 9, subparagraph 21.3):
50. As I understand the expression double dipping, consistent with the definition provided by LexisNexis, it means receiving more than one payment for the same underlying reason. In this case, in accordance with the example given by Minister Howe, double dipping would have occurred if Ms Brockett had received incapacity payments as a consequence of her work injury and received payments from a superannuation scheme based on her incapacity to continue with her work, bringing about her retirement. I do not consider it to be double dipping where an employer makes two payments to an employee on unrelated grounds. That does not result in an employee receiving a greater benefit than the original entitlement intended. Therefore, the fact that Ms Brockett received incapacity payments from the Commonwealth because of her injury, and was also paid by the Commonwealth from her PSS because of her redundancy, does not constitute double dipping. Her redundancy at DHA resulted in her retirement from the PSS and gave rise to an entitlement from that scheme. Her redundancy is completely unrelated to her injury and incapacity for work. It appears to me that the MRCC has treated that as double dipping. It cannot be correct.
51. I have also examined the Explanatory Memorandum circulated by Minister Howe on the introduction of the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988. In respect of clause 20, it states:
This clause provides rules for the calculation of weekly benefits payable to an employee who, as a result of an injury retires voluntarily or is retired from employment after the commencing day and receives a superannuation pension
[emphasis added]
52. If there was any doubt about the meaning of the words used in both limbs of s. 20 of the SRC Act taking into account their context, the Explanatory Memorandum removes any such doubt. Plainly, the intention of Parliament in enacting s. 20 of the SRC Act was to prevent an employee from receiving payments under the SRC Act for incapacity, then retiring either voluntarily or compulsorily as a result of the work injury, and being paid again for that invalidity for work out of a superannuation pension. The words used in the Explanatory Memorandum do not displace the statutory text nor do they contradict it in any way. In fact, as I have indicated by my analysis of the statutory text in the context in which it appears in the SRC Act, it is entirely consistent.
[emphasis added]
DVMV submits further that the Tribunal in Brockett accepted the argument at paragraph 20 of that decision that “the type of pension intended to be subject to the application of s 20(1) is in fact an invalidity rate pension” (A1, page 10, subparagraph 21.4), as follows:
20. As I understood the essence of Ms Brockett’s submissions regarding the application of s. 20 of the SRC Act, it applied to persons contributing to a Commonwealth superannuation scheme who subsequently retired on invalidity grounds which resulted in them being granted an invalidity rate pension under that scheme. She explained that the PSS provides benefits which include, in addition to superannuation pension arrangements linked to salary and length of service, arrangements for payment of invalidity (disability) pensions at various levels of assessed incapacity where the employee ceases employment due to invalidity attributable to that employment.
DVMV contends that the Brockett decision is “primarily focussed [sic] on “THE PROPER CONSTRUCTION OF SECTION 20 OF THE SRC ACT (Heading before paragraph 11 of Brockett), which occupies 42 of the 57 paragraphs of the decision by Senior Member Fice. The issue of dual employment is incidental to the decision. If anything, the decision identifies that only one employment is relevant to s 20(1) i.e. the employment in which the injury arose” (A1, page 11, subparagraph 21.7).
DVMV submits further in relation to the Brockett decision that:
(a)“[T]he statutory construction of s 20(1) by Senior Member Fice…should be binding and is applicable in 2017/4715. No preceding decision has been attempted to do this work, and no preceding decision has considered the words of s 20 and the 1998 Explanatory Memorandum. The Applicant hopes that the Tribunal gives sufficient consideration to the analysis of s20(1) in Brockett because it arises out of the legal expertise of Senior Member Fice” (A1, page 11, subparagraph 21.8).
(b)“His (own) situation “does not have to mirror Ms Brockett’s in order for the Brockett decision to be relevant and applicable… [Rather], it is the analysis of s20(1) that the Applicant seeks to have applied to his situation” (A1, page 12, paragraph 22).
Comcare’s submissions regarding the Brockett decision
In relation to the Brockett decision, Comcare contended that:
(a)The passages in the Tribunal’s reasons in the Brockett decision relied upon by DVMV are inconsistent with the other five authorities (set out at paragraphs 41 to 51 above) (R3, page 4 paragraph 26).
(b)The passage at paragraph 53 of the Brockett decision that “the retirement must result from the injury” (to the extent that terminology is derived from the non-administrative law context applies” is “obiter” (R3, page 4 paragraph 26).
(c)The primary issue in the Brockett decision was whether the employee “must retire from the employment out of which, or in the course of which, the injury arose” (paragraph 53 of the reasons in Brockett). This issue does not arise in the present instance because, unlike in Brockett, no issue arises of the injury having had occurred in different employments (R3, page 4 paragraph 26).
(d)To the extent that the Tribunal in Brockett relied [in support of its decision] on the extract from the Second Reading speech at paragraphs 49[25] and 50 of the reasons for decision, and to the extent that the passage from the Second Reading Speech is of relevance, the passage cited supports the submission that it was the intention of the legislature that an employee cannot receive both payments from a superannuation scheme and compensation pursuant to the SRC Act if the employee suffered relevant incapacity for work and obtains a pension under a superannuation scheme, without an appropriate reduction as provided by subsection 20(1). The passage from the Explanatory Memorandum referred to in paragraphs 51 and 52 (of the Brockett decision, as extracted at paragraph 57 above), as interpreted by the Tribunal, conflicts with the passage in the Second Reading Speech referred to above and in any event, passages from Second Reading Speeches and the Explanatory Memorandum cannot affect the plain reading of the legislation (R3, page 4, paragraph 27).
(e)Furthermore, the Tribunal is not required to, nor should the Tribunal, follow the decision in Brockett, also having regard to the contrary views of the Tribunal in the Shorthouse, Hammerton, Sullivan and McKernan decisions and of the Federal Court in the Lonergan decision (R3, page 4, paragraph 28).
[25] Paragraph 49 of the Brockett decision reads: “49. A number of the cases to which I have referred above mention the Second Reading Speech of the Minister (Mr Howe) in the House of Representatives on 27 April 1988. He said at 2194:
This Bill will also seek to reduce the unreasonable costs associated with work-related injuries by introducing measures to prevent double dipping by employees using sick leave payments or superannuation entitlements while on compensation. For example, many employees who have been retired on invalidity grounds under the current legislation enjoy benefits under both compensation and superannuation schemes at a rate considerably in excess of their previous income.”
At hearing, Mr Lenczner for Comcare made the following additional submissions arising from the Brockett decision:
(a)Mr Lenczner said that there are some parts of Senior Member Fice’s decision that Comcare agrees with, namely paragraphs 12 to 19 (inclusive) of the decision (regarding the proper construction of section 20 of the SRC Act), and in particular, paragraph 17 of the decision, which reads:
17. More recently, the High Court of Australia (French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ) in Saeed v Minister for Immigration and Citizenship (2010) 84 ALJR 507, at 515, said this about legislative intention:
As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the legislative “intention“ is to be ascertained, “what is involved is the ‘intention manifested’ by the legislation“. Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.…
As was pointed out in Catlow v Accident Compensation Commission it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction.…
[emphasis added]
(b)Mr Lenczner added in relation to paragraph 17 of the Brockett decision (extracted at subparagraph 62(a) above) that Senior Member Fice “reversed the exercise” in that he attempted to interpret the Explanatory Memorandum, then reduce the meaning of the Act (to fit with that interpretation) when it “should have been the other way around.”
(c)Referring to paragraph 19 of the Brockett decision, which reads:
19. Finally, I should refer to what the High Court of Australia (French CJ, Hayne, Crennan, Bell and Gageler JJ) said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98 regarding statutory interpretation. The Court said, at 107:
“This Court has stated on many occasions that the task of statutory construction must begin with the consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it is assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.”
[emphasis added]
Mr Lenczner submitted that in this instance, there was no “statutory text,” as “arguably put” in (paragraph 19 of) the Brockett decision and of the kind contended by DVMV. Mr Lenczner said that rather, the “plain language” of subsection 20(1) “is clear.”
(d)Mr Lenczner said that “the bulk of the Tribunal’s decision in Brockett is to do with the analysis of the concept of employment for the purpose of section 20 of the SRC Act,” noting that Senior Member Fice found that unless the employment giving rise to the payment of compensation under the SRC Act is the same employment giving rise to a pension payable under a superannuation scheme, section 20 does not apply.
(e)Mr Lenczner submitted that clause 20 of the Explanatory Memorandum extracted in paragraph 51 of the Brockett decision (refer to paragraph 57 above) is an example of one manner in which an event may take place where there is both compensation and superannuation pension payable. Mr Lenczner added that the passage was not intended to be a definitive statement of what constitutes double dipping, but “one example of what can be seen as it.”
(f)Mr Lenczner notes that the words “as a result of” referred to in paragraph 52 of the Brockett decision (refer to paragraph 57 above) do not appear in the legislation.
(g)Mr Lenczner drew the Tribunal to paragraph 35 of the Brockett decision, which reads, relevantly and in part:
35. There is some support in the Tribunal decisions for my interpretation of the expression retired from his or her employment. In Milliken and Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1991] AATA 292 (‘Milliken’), Deputy President B J McMahon referred to the Second Reading Speech on the introduction of the 1988 Bill to the House of Representatives and he said this about s. 20, at [21]:
The purpose of the section is, as was said in the Second Reading Speech to which I have referred, to avoid double dipping, to avoid a situation where a former employee receives both compensation and superannuation from his former employer. Consistently with the observations of Moss J [in Breust and Commission for the Safety Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 267], both must arise out of the same relevant employment, and the superannuation must arise out of retirement from that employment.
[emphasis added]
Mr Lenczner submitted that in the Brockett decision, Senior Member Fice moved from that passage (from the Milliken decision, set out at subparagraph 62(g) above) and “slipped into” an interpretation that both the compensation and superannuation must arise from the same injury, which, in Comcare’s submission is wrong.
DVMV’s responsive submissions to Comcare’s submissions regarding the Brockett decision
In response to Comcare’s submissions regarding the “primary and obiter elements of the Brockett decision” (A1, page 11, subparagraph 21.6, referring to R3, page 4, paragraph 26), DVMV made the following additional submissions:
(a)Comcare makes its arguments by “breaking apart paragraph 53 of the Brockett decision” in order to make the argument that the primary issue is “whether the employee must retire from the employment out of which, or in the course of which, the injury arose” and the secondary issue (“obiter”) is that “the retirement must result from the injury (A1, page 11, subparagraph 21.6).
(b)Comcare’s argument is implausible when the two quotations in paragraph 53 of the Brockett decision are shown in their original position, as follows (A1, page 11, subparagraph 21.6):
53. Having first conducted the statutory construction exercise regarding s. 20 of the SRC Act, I have found that to fall within the first limb of s. 20(1), the employee must retire from the employment out of which, or in the course of which, the injury arose. Even further, the retirement must result from the injury…
(c)The two sentences in paragraph 53 of the Brockett decision, underlined at subparagraph 63(b) above, joined by the phrase “even further,” which Comcare omits, are part of a single assertion and that together they “negate” Comcare’s arguments regarding the Brockett decision (A1, page 11, subparagraph 21.6).
(d)With regard to Comcare’s submission at subparagraph 61(e) above, Comcare makes its own arguments regarding not having to be bound by senior Member Fice’s decision in Brockett but “puts forward its own submissions to follow.”
CONSIDERATION
DVMV seeks an order that (A1):
(a)The reviewable decisions be set aside and “subsection 20(1) deductions from incapacity payments be restored” to him.
(b)Comcare publish a “Jurisdictional Advice” in relation to the Tribunal’s decision “so that in future, injured Commonwealth employees do not waste AAT resources, and so that Comcare does not needlessly spend funds on legal representation.”
The orders DVMV seeks are based on his view that for subsection 20(1) of the SRC Act to apply, there is a requirement (given the Tribunal’s decision in Brockett and a number of secondary sources addressed in that decision) that he have retired from his employment as a result of his compensable injury. It is not in dispute that DVMV’s retirement from the Organisation was unrelated to his compensable injury.
Comcare seeks an order that the reviewable decision(s) be affirmed (R3) on the basis that there is no such requirement that the retirement from employment be as a result of the compensable injury. Comcare is of the view that the Explanatory Memorandum and Second Reading Speech provides no support for DVMV’s notion that the application of subsection 29(1) of the SRC Act is restricted by reference to the reason for the Commonwealth employee’s retirement.
The issue before the Tribunal is therefore whether, for subsection 20(1) of the SRC Act to apply, subsection 20(1) of the SRC Act itself requires that DVMV’s retirement from his employment be caused by his compensable injury. This issue is considered below.
The legislation
Subsection 20(1) of the SRC Act reads as follows:
(1) Compensation payable to an employee who is incapacitated for work as a result of an injury is determined in accordance with this section if:
(a) the employee is retired from his or her employment (whether the employee retired voluntarily or was compulsorily retired); and
(b) the employee receives a pension under a superannuation scheme as a result of the employee's retirement.
DVMV holds the view that the words “as a result of the injury” ought to be read into subsection 20(1) of the SRC Act in light of his interpretation of the Brockett decision and the Explanatory Memorandum and Second Reading Speech extracted at paragraphs 37 and 56 to 60 (inclusive) above. Comcare’s view is that the words of the subsection are plainly clear that the “as a result of” relationship is not required in order to trigger the operation of the subsection, nor do the Brockett decision, the Explanatory Memorandum or Second Reading Speech assist the Tribunal in adopting DVMV’s interpretation.
DVMV has argued that the Tribunal ought to prefer the Brockett decision to the authorities put forward by Comcare (being the Shorthouse, Lonergan, Sullivan, Re McKernan and Hammerton decisions discussed at paragraphs 43 to 55 above) as the Brockett decision considers the Explanatory Memorandum to the SRC Act[26]. Indeed, DVMV takes his position as far as saying:
“The Applicant notes that in Brockett the Tribunal did far more than rely on the 1988 Explanatory Memorandum to the SRC Act. In fact Brockett developed an extensive statutory construction of s20, which the Respondent has ignored. The Applicant notes the Respondent’s two determinations (T44, page 128 – 130, and T77 page 200-02 [sic]) have relied upon Brockett paragraphs 53 and 56 only, and ignored the request by the Applicant to consider other parts of the decision.”
[26] Being the Explanatory Memorandum to the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988.
Comcare, however, submits that the Brockett decision deals with a different issue, namely whether section 20 of the SRC Act applied in a case where retirement was from one employment undertaken by the application whereas the injury resulted from another employment undertaken by Ms Brockett at the same time. Comcare argues further that the comment by Senior Member Fice in the Brockett decision that the retirement must have resulted from the compensable injury is not a precedent for this, or indeed any case in the future.
Subsection 20(1) of the SRC Act is, in the Tribunal’s view, clear in its wording that the incapacity for work underlying the compensation payable must be as a result of an injury (injury, as defined). The words “as a result of an injury” or similarly, “as a result of the injury,” do not however in subsection 20(1)(a) after the word “employment” or similarly, after the close parentheses following the word “retired.”
The Tribunal finds that this interpretation is, of itself, a sufficient basis from which to reach the conclusion that the relationship between the retirement and the injury sought to be read in by DVMV does not exist. The Tribunal takes the view, consistent with general principles of statutory interpretation[27], that if it were intended for that relationship to exist, the subsection would have been drafted in a way to reflect and implement that intention.
[27] For example, the decision of Saeed v Minister for Immigration and Citizenship (2010) 84 ALJR 507 at paragraph 17 (extracted at subparagraph 62(a) above) and the Brockett decision at paragraph 19 (extracted at subparagraph 62(c) above).
While the conclusion reached at paragraph 73 does, of itself, deal with the issue before the Tribunal, for completeness the Tribunal makes the following comments and findings regarding the authorities and related submissions put forward by the parties:
(a)In relation to Comcare’s argument at subparagraph 62(g) above regarding paragraph 35 of the Brockett decision, the Tribunal notes its context as provided by its preceding paragraph, as follows:
34. Although Ms Thiagarajan submitted the retirement referred to in s. 20(1)(a) is not causally linked to the injury suffered by a member of the Defence Force, as will become apparent presently, I do not consider that submission to be correct. That is because the plain meaning of the expression the employee is retired from his or her employment, in the context in which it appears in the SRC Act, appears to be a reference to the particular employment in the course of which, or out of which, the injury arose. While those words might not, on a strictly literal interpretation, establish a direct link between retirement and the compensable injury which resulted in incapacity, if I am correct in stating that the retirement referred to in the first limb of s. 20(1) is retirement from the particular employment out of which the injury arose, there is some logic in connecting the retirement to the injury.
(b)In the Brockett decision, Senior Member Fice finds support for his interpretation of ‘retired from his or her employment’ in, among other things, paragraph 21 of the Milliken decision (extracted at subparagraph 62(g) above). From paragraph 21 of the Milliken decision, that both the compensation and the superannuation must arise out of the same relevant employment, and that the superannuation must arise out of retirement from that employment, does not, with respect, in the Tribunal’s view, lend support to connecting the retirement to the injury.
(c)The Tribunal takes a similar view, i.e. that no support is provided to connecting the retirement to the injury, with regard to Clause 20 of the Explanatory Memorandum (extracted at subparagraph 37(b)(i) above) as the wording of that clause, in its view presents the phrase “as a result of an injury retires” immediately before the alternative “or is retired from employment.” The Tribunal considers that the clause in its entirety does not intend for those who retire as a result of an injury to be excluded from the operation of section 20(1) of the SRC Act, but rather persons in that category are part of a larger subset of persons retired from employment and in in receipt of incapacity payments on their retirement. The Tribunal considers this approach to also be consistent with the words “[F]or example, many employees who have been retired on invalidity grounds” in the Second Reading Speech as extracted in subparagraph 37(b)(ii) above.
(d)That the retirement must result from the injury would be inconsistent with the Federal’s Court’s broad interpretation of the ‘retirement’ in the Keen decision, along with the Shorthouse, Sullivan, Re McKernan, Hammerton and Lonergan decisions (the Lonergan decision being a Federal Court decision).
(e)DVMV notes (refer to paragraph 46 above) that the Hammerton decision does not mention or consider the Explanatory Memorandum or Second Reading Speech. The Tribunal has no difficulty with this absence as it considers that on the plain wording of the subsection, (as interpreted in the decisions relied upon by Comcare), such regard need not be had in order to establish the necessary (temporal) relationship between the retirement and the injury.
CONCLUSION
The sole issue before the Tribunal is whether, for subsection 20(1) of the SRC Act to apply, subsection 20(1) of the SRC Act itself requires that DVMV’s (or indeed, any Commonwealth employee who is incapacitated for work as a result of a compensable injury) retirement from his employment be caused by his compensable injury.
The Tribunal has considered DVMV’s circumstances in their entirety. Based on all the evidence before it, the Tribunal finds that the facts, legislation and evidence do not, in the context of subsection 20(1) of the SRC Act, support a causal relationship between the retirement from employment and the compensable injury because:
(a)In the Tribunal’s view, consistent with general principles of statutory interpretation, the plain wording of the provision lends itself to a temporal connection between the retirement and the compensable injury only;
(b)This conclusion is, for completeness, consistent with the Tribunal’s interpretation of a number of Tribunal and Federal Court decisions and other secondary sources including the Explanatory Memorandum or Second Reading Speech referred to throughout this decision.
In reaching its decision, the Tribunal has also had regard to the Brockett decision, which relates to a distinguishable factual scenario to that of DVMV and adopts an alternative interpretation to this Tribunal, which it respectfully departs from for reasons given in this decision.
decision
Comcare’s reviewable decisions dated 4 December 2015 and 10 February 2017 are affirmed.
I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member
...........[sgd]..................................................
Associate
Dated: 20 February 2018
Date(s) of hearing: 04/12/2017 Applicant: In person Solicitors for the Applicant: Moray & Agnew Lawyers Counsel for the Respondent: Joe Lenczner Advocate for the Respondent: Rosemary Waldron-Hartfield
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