Elliott and Repatriation Commission (Veterans’ entitlements)
[2015] AATA 894
•20 November 2015
Elliott and Repatriation Commission (Veterans’ entitlements) [2015] AATA 894 (20 November 2015)
Division
VETERANS' APPEALS DIVISION
File Number
2015/1875
Re
John Elliott
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 20 November 2015 Place Melbourne The Tribunal sets aside the decision under review and substitutes a decision that the Applicant satisfied s. 24(2A) of the Veterans’ Entitlements Act 1986 (Cth) during the assessment period and therefore qualifies to be paid the pension at the special rate.
...............................[sgd].........................................
Egon Fice, Senior Member
Catchwords
VETERANS – entitlements – pensions – rates – special rate – qualification – veterans over 65 – requirement to work for a continuous period of at least 10 years – change in employer – Applicant engaged by labour hire agency and contracted out to previous employer – one week gap in employment due to relocation – decision under review set aside
Legislation
Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB
Administrative Appeals Tribunal Act 1975 (Cth) s 29Veterans’ Entitlements Act 1986 (Cth) ss 24, 176
Cases
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Singh v Commonwealth (2004) 222 CLR 322Thomson and Repatriation Commission [2000] FCA 204 (7 March 2000)
Secondary Materials
Explanatory Memorandum, Veterans’ Affairs (1994 – 95 Budget Measures) Legislation Amendment Bill 1994 (Cth)
William Little, H W Fowler and Jessie Coulson, The Shorter Oxford English Dictionary (Oxford University Press, 3rd revised ed, 1983) vol 2
REASONS FOR DECISION
Egon Fice, Senior Member
20 November 2015
Mr John Elliott served in the RAAF from 1963 to 1969, having operational service in Vietnam between April 1967 and April 1968. He is in receipt of a disability pension at 100% of the general rate in respect of the following war-caused conditions:
·bilateral tinnitus
·chronic solar skin damage to an unspecified site or sites
·bilateral sensorineural hearing loss
·tinea
·non-melanotic malignant neoplasm of the skin
·malignant melanoma of the skin
On 18 August 2014 Mr Elliott lodged with the Department of Veterans’ Affairs an application for increase in the disability pension. On 23 September 2014 a delegate of the Repatriation Commission accepted Mr Elliott’s claim for increased disability pension, increasing his pension to 100% of the general rate with effect from 18 August 2014. The delegate also considered, given that Mr Elliott’s degree of incapacity was 100%, whether payment should be made at the special or intermediate rates or whether payment of the extreme disablement adjustment applied. The delegate considered that Mr Elliott was not eligible for the extreme disablement adjustment because his medical impairment and lifestyle ratings were less than those prescribed by the Veterans’ Entitlements Act 1986 (the VE Act). She also determined that Mr Elliott was not eligible for pension at either the special or intermediate rate.
Mr Elliott sought review of the delegate’s decision by the Veterans’ Review Board (VRB). The VRB affirmed the decision under review on 1 December 2014. Mr Elliott lodged an application with the Tribunal seeking review of the VRB decision on 21 April 2015. Because Mr Elliott’s claim for review before the Tribunal was lodged outside the three month period permitted by the Administrative Appeals Tribunal Act 1975 (AAT Act) as modified by s. 176(4)(a) of the VE Act, he requested an extension of time in accordance with s. 29(7) of the AAT Act. The extension of time was granted, not having been opposed by the Repatriation Commission.
In this application, Mr Elliott only seeks review of the decision to refuse to increase his disability pension to the special rate described in s. 24 of the VE Act. Because Mr Elliott was born on 18 November 1945, he had reached 65 years of age before his application was made. In his case, the only issue which I need to determine is whether he satisfies the eligibility criteria set out in s. 24(2A) of the VE Act.
ELIGIBILITY FOR SPECIAL RATE PENSION
Section 24 of the VE Act sets out the provisions for eligibility to receive the special rate of pension. There was no issue in Mr Elliott’s case that he satisfied the general provisions set out in s. 24(1). The problem for Mr Elliott is that having turned 65 before lodging his application for an increase in the rate of pension, he must meet the particular requirements of s. 24(2A). That section provides (emphasis in original):
(2A) This section applies to a veteran if:
(a)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b)the veteran had turned 65 before the claim or application was made; and
(c)paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d)the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)when the veteran stopped undertaking his or her last paid work, the veteran:
(i) if he or she was then working as an employee of another person – had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling – had been so working in that profession, trade, employment, vocational or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)section 25 does not apply to the veteran.
The Repatriation Commission accepted that Mr Elliott satisfied all of the clauses in
s. 24(2A) except for s. 24(2A)(g). He did not satisfy that subsection because when he stopped undertaking his last paid work, he had not been working for his last employer, or predecessor, for a continuous period of 10 years. The Repatriation Commission submitted that Mr Elliott’s employer changed in the 10 year period and there were gaps in his employment.
In a written witness statement which was taken into evidence, Mr Elliott testified that he was employed by Esso Australia Pty Ltd (Esso) from 21 May 1982 to 6 July 2009. From 13 July 2009 until 13 December 2013 Mr Elliott said he was employed by
DFP Recruitment Services Pty Ltd (DFP Recruitment Services) working exclusively for Esso undertaking exactly the same duties and responsibilities he had previously been performing for Esso.
By way of explanation, in his witness statement Mr Elliott said that between 2007 and 2009, he conducted work for Esso in Malaysia. He said that shortly before returning to Australia in 2009, Esso decided to outsource a number of positions and to contract individuals for those positions through a labour hire company rather than continuing to employ those persons directly. Mr Elliott was told that Esso Australia had appointed
DFP Recruitment Services to provide its labour requirements and that he would be guaranteed to be employed by that company conducting the same duties, at the same place of employment, with the same responsibilities and obligations as would be the case were he to continue to be an employee of Esso. Following those discussions with Esso, Mr Elliott resigned his employment with that company and commenced employment with DFP Recruitment Services. In his oral evidence-in-chief Mr Elliott was asked to explain the seven day gap following his resignation with Esso and commencement with
DFP Recruitment Services. Mr Elliott said this was due to his relocation from Malaysia to Australia, allowing him a resettlement period in Australia prior to continuing with his work.
In support of Mr Elliott’s evidence, I also had in evidence a letter from ExxonMobil Ltd sent on behalf of its Australian subsidiary, Esso Australia Pty Ltd. That letter, dated
29 June 2009 states:
This is to certify that Mr. John Allan Elliott was employed by Esso Australia Pty. Ltd. from 21 May 1982 to 6 July 2009. His last designation was
Measurement Technician.
Just why this letter appears to pre-date his ceasing work with Esso was not explained. It may be a typographical error. In any event, it does not appear to be significant.
I also had in evidence a letter from DFP Recruitment Services dated 8 April 2015 which states:
This letter is to confirm that John Elliott was employed as a Measurement Adviser through DFP Recruitment Services with one of our contract clients, Esso Australia Limited, a subsidiary of ExxonMobil.
John was employed through DFP from 13th July 2009 until the 13th December 2013 and was employed to work only at ExxonMobil.
I had in evidence two PAYG Payment Summaries for the 2010 income year, with one indicating Mr Elliott’s employment with Esso for that income year concluded 6 July 2009 and the other indicating that his employment with DFP Recruitment Services commenced on 13 July 2009. Those documents corroborate Mr Elliott’s oral evidence.
I also note that in its reasons for decision, the VRB at paragraph 26 referred to four periods of employment with DFP Recruitment Services (incorrectly referred to by the VRB as DFB Recruitment) which it said disclosed breaks in the contract work undertaken by
Mr Elliott. With respect to the members of the VRB, that is not entirely clear from the letter. The letter from DFP Recruitment Services referred to in the reasons for decision, which is dated 1 October 2014 states, in its opening paragraph (emphasis added):
This letter is to confirm that John Elliot [sic] was employed in the following roles through DFP Recruitment Services with one of our contract clients, ExxonMobil;…
The letter then sets out the dates between which various roles were attributed to Mr Elliott. Plainly, that is not necessarily the same as stating the periods of time during which
Mr Elliott was employed. The roles stated are as follows:
13/07/2009 – 20/07/2009 Auditor
13/08/2009 – 31/12/2014 [sic – presumably 31/12/2010] Metering Support
09/03/2011 – 15/08/2011 Measurement Advisor
13/02/2012 – 31/03/2013 Auditor
While it is probably correct to say that during the periods mentioned above, Mr Elliott was employed in the roles described in working for Esso, that does not necessarily indicate that there were gaps in his employment. The reason for that should become clear presently.
The letter of 8 April 2015 makes it clear that Mr Elliott remained employed, doing work for ExxonMobil (Esso Australia) through DFP Recruitment Services as his legal employer throughout the period 13 July 2009 up to 13 December 2013. In his witness statement, Mr Elliott confirmed that he disagreed with what was said by the VRB in its reasons for decision at paragraph 26. He repeated that he had continuous employment with DFP Recruitment Services for the period I have stated.
It should be apparent that the fact that Mr Elliott resigned as an employee of Esso in 2009 and entered into an agreement with DFP Recruitment Services one week later appears, on its face, to disclose a discontinuity of working for Esso. However, there are good reasons why this change of employer needs to be examined more closely.
CONSTRUCTION OF SECTION 24(2A)(G)
If I were to read s. 24(2A)(g) literally, then, arguably, even a one day period of not working for an employer or its predecessor would break a continuous period of work. However, such a construction is unlikely to be correct. That is because the section does not require the employee to work continuously but rather, to work for a continuous period. Working for an employer does not mean the employee is required to work on every single day of an employment period. Nor does it necessarily mean that a contract of employment must continue without break. It is possible to foresee that one can work for a person despite a contract of employment having come to an end. For example, one may be engaged on a casual basis, when and if required. Given the possibilities that may arise in an employment context and having regard to the focus on working for a person for a continuous period, it is difficult to ascertain the intent of this legislation simply from the words used in the statute.
Well before the introduction of s. 15AA in the Acts Interpretation Act 1901 (the Interpretation Act), the courts made it clear that they should give effect to the intention expressed by the words used in a statute rather than simply applying a literal meaning. The High Court of Australia (Gibbs CJ, Stephen, Mason, Aickin and Wilson JJ) made this very clear in the well-known case Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297. Gibbs CJ said, at 304 – 305:
It is an elementary and fundamental principle that the object of the court, in interpreting a statute, “is to see what is the intention expressed by the words used”: River Wear Commissioners v. Adamson (16). It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say:… Of course, no part of a statute can be considered in isolation from its context – the whole must be considered.… On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied.
Mason and Wilson JJ, after referring to the literal construction rule, explained it this way, at 320:
But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute.
Section 15AA of the Interpretation Act provides:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
In addition to the provisions set out in s. 15AA, s. 15AB provides for use of extrinsic material in the interpretation of an Act. While that section provides for the use of extrinsic materials to assist in the ascertainment of the meaning of a provision in particular circumstances, the High Court of Australia (Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ) in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 went further. Brennan CJ, Dawson, Toohey and Gummow J said, at 408:
It is well settled that at common law, apart from any reliance upon s. 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure (46). Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy (47). Instances of general words in a statute being so constrained by their context are numerous.
Similar statements were made by the High Court of Australia (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ) in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. McHugh, Gummow, Kirby and Hayne JJ said, at 381:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (45). The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole” (46). In Commissioner for Railways (NSW) v Agalianos (47), Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed (48).
Gleeson CJ also made a number of useful statements regarding meaning, intention and purpose in Singh v Commonwealth (2004) 222 CLR 322. His Honour said, at 335 – 336:
Acknowledging that “[i]ntention of the Legislature” is a “very slippery phrase” (51), courts, and Parliament itself, refer to “intention” or “intent” in stating rules and principles of statutory interpretation.… The Acts Interpretation Act 1901 (Cth) sets out various rules of interpretation of statutes which apply “unless the contrary intention appears” (53).… In Sovar v Henry Lane Pty Ltd (55), Kitto J warned that the intention that such a private right shall exist is not conjured up by judges to give effect to their own ideas of policy, and then imputed to Parliament. “The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation…. In Wilson v Anderson (56), I sought to explain the objectivity of the concept of intention, comparing the position with respect to construction of a contract, and stressing that the exercise is not formal or literalistic but demands consideration of background, purpose and object, surrounding circumstances, and other matters which throw light on the meaning of unclear language.… As Kitto J said, references to intention must not divert attention from the text, for it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred.
The High Court of Australia (French CJ, Gummow, Hayne, Heydon, Crennan and
Kiefel JJ) in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 added the following cautions regarding the use of extrinsic materials. French CJ, Gummow, Hayne, Crennan and Kiefel JJ said, at 264 – 265:
[31] 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” (75). 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.…
[33]… As was pointed out in Catlow v Accident Compensation Commission (79) it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction.
The guidance given by the High Court directs my attention to the Explanatory Memorandum which accompanied the Veterans’ Affairs (1994 – 95 Budget Measures) Legislation Amendment Bill 1994 and in particular to the proposed changes to the special and intermediate rate pension provisions to persons who are over 65 years of age. Under the heading Background, the Explanatory Memorandum states, at 20 – 21:
The special rate of pension was originally designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the special rate would become payable to a veteran who, having enjoyed a full working life after war service, then retired from work with whatever superannuation or other retirement benefits the veteran might have available to him or her.…
In a number of cases, although objectively the normal working life of the veteran had been completed, the special rate has been granted on the basis of claims that the veteran had an intention to commence a new business or occupation but had been prevented because of incapacity from war-caused disease or injury, and thereby had a loss of wages or salary, or earnings on his or her own account.
Given the original purpose of the special and intermediate rates of pension, it is inappropriate for such cases to be eligible for pension at the special rate or intermediate rate, which, once granted, generally applies for the life of the veteran unless there is an improvement in the veteran’s capacity to undertake remunerative work.
Thus the proposed amendments will ensure that for a veteran to obtain the benefit of the special or intermediate rates after the age of 65, he or she must have clearly demonstrated that it was the veteran’s long-term intention to have a longer than normal working life by working past the age of 65 and by working in that remunerative work for at least 10 years, and for that work to have commenced before the veteran turned 65.
Given that explanation in the Explanatory Memorandum, it becomes clear to me why
s. 24(2A)(g) is focused on the capacity in which the last paid work was undertaken and the nature of the work conducted by the veteran over a continuous period of 10 years, that work being in the same capacity; of the same nature and having commenced before the veteran reached 65 years of age. That consistency of work conducted is, in the case of an employee, deemed to be manifested by working for the same employer over that period of time or, if the veteran was working on his or her own account, by working in the same profession, trade, employment, vocation or calling over that period. If the veteran satisfies those requirements, he or she will demonstrate a long-term intention to have a longer than normal working life by working past the age of 65 in the remunerative work which commenced before the person reached that age.
THE INTERPOSITION OF A LABOUR HIRE ENTITY
There is nothing in Division 4 of the VE Act (which is concerned with rates of pensions payable to veterans) dealing with the interposition of a labour hire company between the veteran and the person for who work is performed, in a practical sense. That does not mean that s. 24(2A)(g) has no application in such case. In those circumstances, a literal reading of the section is inappropriate and every effort must be made to apply its intent.
On the evidence presented to me at the hearing of this matter, there was no dispute that Mr Elliott was continuously engaged in remunerative work with Esso between
21 May 1982 and 6 July 2009. However, a question arises about whether his resignation from Esso on 6 July 2009, followed by his engagement to work for Esso by
DFP Recruitment Services, indicates a disruption of working for his original employer or its predecessor or predecessors.
The second question which arises is whether Mr Elliott’s work between 13 July 2009 and 13 December 2013 was such that it could not be described as having being conducted over a continuous period. There was a seven day period between 6 July 2009 and
13 July 2009 which might be said to have broken that continuity. There is also a further question about whether Mr Elliott had been working for a continuous period between
13 July 2009 and 31 March 2013 when he finally retired. That arises from the information set out in the DFP Recruitment Services letter of 1 October 2014.
Mr K Rudge, a lawyer engaged by the Advocacy Section (Vic) of the Department of Veterans’ Affairs, submitted that Mr Elliott did not satisfy the provisions set out in
s. 24(2A)(g) of the VE Act because when he stopped undertaking his last paid work, he had not been working for his last employer or predecessor for a continuous period of
10 years. He said his employer changed in the 10 year period and that there were gaps in his employment.
On the other hand, Ms R Walsh of counsel, who appeared on behalf of Mr Elliott, submitted that Mr Elliott’s employment by the labour hire firm DFP Recruitment Services was simply an outsourcing arrangement between Esso and the labour hire company. His remunerative work remained unchanged and his services were provided to Esso from
13 July 2009 until his retirement in 2013. His remunerative work continued after he reached the age of 65 years and it was in the same business in which he had been working for 10 continuous years. As for the seven-day break following his retirement from Esso and relocation to Australia, Ms Walsh submitted that break was inconsequential in length. It did not constitute a break in the continuous period of working for Esso. She did not make any submissions regarding the 1 October 2014 letter.
The same employer or predecessor of that person
There can be no dispute that Mr Elliott was employed by Esso for a continuous period between 1982 and 2009. There was no evidence to suggest the contrary. In his written statement of evidence Mr Elliott said his last designation with Esso prior to 6 July 2009 was as a Measurement Technician. His duties were to monitor measuring systems of ships, major pipelines and measurement testing systems as well as undertaking the teaching and technical training of technicians in measurement and calibration operations. In addition, his duties also included reviewing contracts of suppliers. He said he obtained a formal qualification described as a Certificate in Instrumentation from Royal Melbourne Institute of Technology in the mid-1990s.
In 2009 Mr Elliott was working in Malaysia undertaking a specific project to train Malaysian technicians in measurement and calibration operations. According to Mr Elliott, shortly before his return to Australia, senior management at Esso decided to outsource a number of positions and to contract individuals for those positions through a labour hire company. DFP Recruitment Services was granted the labour hire company contract for Esso.
Mr Elliott said that he was in Malaysia at the time of being informed about the restructure and he was asked to enter into this arrangement on the basis that he would continue to work for Esso, conducting the same duties as before, in the same place of work with the same responsibilities and obligations. Mr Elliott testified that his terms and conditions of employment remained the same but, as an inducement to transfer his employment to
DFP Recruitment Services, his salary was increased. Accepting that arrangement meant he had to resign his employment with Esso and commence employment with
DFP Recruitment Services. That is what occurred on 6 July 2009.Mr Elliott’s evidence about this change in his employment structure was uncontradicted and supported by letters from Esso and DFP Recruitment Services. That evidence was also consistent with PAYG Payment Summaries indicating his employer up to 6 July 2009 was Esso and from 13 July 2009 became DFP Recruitment Services. Furthermore, the letter from DFP Recruitment Services dated 1 October 2014 confirms Mr Elliott continued to work for ExxonMobil (Esso) in the roles which he described he undertook prior to change of employer.
The extensive use of labour hire firms which are interposed between persons doing the work and the party for whom the work is performed has developed quite recently. It is obvious from the structure of s. 24(2A)(g) that such an arrangement was not in contemplation when the section was drafted. There are only two forms of remunerative work contemplated: that provided as an employee of the entity for whom the work is carried out or, alternatively, as a person working on his or her own account, either as a professional or contractor. The interposition of a labour hire firm places the person who is to do the work itself in a different position. They are not employed by the person for whom the work is conducted, nor do they, in a practical sense, do the work for the person who employs them. However, that should not mean that a person who, because of a decision by their employer to engage the services of a labour hire firm, is transferred to the labour hire firm to become its employee but continues to do the same work for the previous employer, should somehow fall through the cracks. To do justice to such a person, one needs to apply the legislation in a way which gives effect to its intent.
The evidence in this case indicates that the only change in Mr Elliott’s employment was the notional employer. Practically, not only was his work role unchanged, but the party for whom the work was performed also remained unchanged. Section 24(2A)(g) is concerned with the continuity of work of an applicant for a period of 10 years which began before that person turned 65, so as to indicate a long-term intention to have a longer than normal working life. If the applicant was an employee of another person, that work must have been for the employer or any predecessor of that person. In that context, the question in Mr Elliott’s case is whether, when he stopped undertaking his last paid work in 2013, he should have been regarded as an employee of Esso rather than
DFP Recruitment Services or, alternatively, if he is to be regarded as an employee of
DFP Recruitment Services, whether Esso is the predecessor of the labour hire entity.The word predecessor is defined in The Shorter Oxford English Dictionary as (at 1651): 1. One who has preceded another in any office or position. b. A thing to which another has succeeded 1742. The word predecessor is not defined in the VE Act and, accordingly, it should be given its ordinary meaning in the context in which it appears in the legislation. The Explanatory Memorandum describes a predecessor in the following way (at 23):
Where the veteran was an employee in his or her last paid work, he or she must have been employed by the same person or a predecessor or predecessors of that person for a continuous period of at least 10 years that began before the veteran turned 65 years of age. In this context, a predecessor of a person means the person who was previously the veteran’s employer and whose position as employer of the veteran was taken over by a legal successor to the position as the veteran’s employer, for example, by a takeover or sale of the business enterprise in which the veteran was employed.
The first point to make about whether the predecessor provision should be applied in this case is that DFP Recruitment Services was the legal successor of Esso in so far as it became Mr Elliott’s employer. Although the Explanatory Memorandum gives the example of a takeover or sale of business enterprise where the veteran was employed, it is plainly not intended to be exhaustive. There can be little doubt on the evidence before me that Mr Elliott was simply transferred to DFP Recruitment Services by Esso because Esso determined that obtaining his services through an intermediary had significant benefits for the company. It was relieved of the usual Human Resources functions, including payroll, which had to be provided in respect of all of its employees. Furthermore, it could call on Mr Elliott’s services when and as required rather than to maintain and pay him for periods when actual work was not required. The second point is that despite the change of employer, Mr Elliott continued to perform precisely the same work for Esso as he did prior to being transferred to DFP Recruitment Services. The fact that he was, following the transfer, employed and paid by DFP Recruitment Services, can be taken to mean that he continued working in the same capacity and occupation as he did previously and that the work was done for DFP Recruitment Services (by whom he was paid) although, in a practical sense, at Esso’s premises. In that sense, given the ordinary meaning of the word predecessor, at the time Mr Elliott stopped undertaking his last paid work, he was working for Esso’s successor in exactly the same trade or employment. Therefore, in my opinion, Mr Elliott’s transfer to DFP Recruitment Services as its employee does not derogate from the requirement that he must clearly demonstrate it was his long-term intention to work past the age of 65 in the remunerative work which he was performing for Esso. In fact, it supports that claimed intention.
The only remaining issue is whether Mr Elliott, when he stopped undertaking his last paid work, had been working for DFP Recruitment Services and Esso for a continuous period of at least 10 years before he turned 65 years of age, which was in 2010.
Continuous period of at least 10 years
The Full Court of the Federal Court of Australia (Ryan, North and Merkel JJ) dealt with this issue in the unreported decision in Thomson and Repatriation Commission
[2000] FCA 204 (7 March 2000) (Thomson). Although that case dealt with a person to whom s. 24(2A)(g)(ii) applied in that it involved a doctor working on his own account in the medical profession, the principles are applicable to the case of an employee working for an employer.The Court said, at [12]:
Furthermore, if there were gaps in the continuity of work during the relevant period the reason for the gaps will be relevant. For example, if the gaps occurred solely as a result of a temporary unavailability of work, that could not, properly, lead to a conclusion of lack of continuity under s. 24(2A)(g)(ii). This is particularly the case if the doctor had been actively, but unsuccessfully, seeking work during the relevant period. However, if the gaps occurred because the doctor had decided to retire, or the unavailability was more permanent, that would support a conclusion that he or she had ceased to continue working as a medical practitioner on his or her own account. Plainly, questions of fact and degree will be involved.
The Court held, at [14], that it did not regard the intervals of non-performance of remunerative work by the present appellant as unexplained. Nor did it consider that the material before the Tribunal established that they affected a severance of the requisite
10 year period.
The Court then went on to explain, at [15]:
Furthermore, our construction is compelled by the wording of the statute. If
s. 24(2A)(g) were concerned only with the continuity of the last paid work, then sub-clauses (i) and (ii) would be otiose. All that would have been necessary was a requirement that the undertaking of the last paid work be continuous during the 10 years prior to the relevant date. As explained above, sub-clauses (i) and (ii) make it quite clear that s. 24 (2A)(g) is concerned with the capacity in which the last paid work was undertaken. The purpose of those sub-clauses in s. 24(2A)(g) appears to be to prevent claims by veterans over 65 years of age that are based on new or recent employment or self-employment (i.e. in the present context, less than 10 years in duration).
As I have already said, an employee is not required to work on every single day that he or she is an employee of another person. And, in any event, the purpose of the provisions set out in s. 24(2A)(g) is that the veteran must demonstrate that it was the veteran’s long-term intention to continue working in the capacity in which he had worked before reaching 65 years of age to a time past that age. In order to do that, Mr Elliott was required to relocate from Malaysia to Australia. Understandably, he did not become an employee of DFP Recruitment Services until after he had relocated. In any event, the very fact that he relocated to Australia so that he could become an employee of DFP Recruitment Services and so continue his work for Esso is evidence of his intention to continue working past the age of 65 years.
The second issue which was addressed by the VRB and by Mr Rudge in this application concerned the apparently intermittent work Mr Elliott conducted when employed by
DFP Recruitment Services. Even if, as contended by Mr Rudge, the 1 October 2014 letter from DFP Recruitment Services discloses gaps in actual working as opposed to continuing to be employed between 13 July 2009 and 31 March 2013, while the reasons may not have been explained in this case, it is my opinion that the principles enunciated by the Full Court in Thomson are applicable. As the letter from DFP Recruitment Services of 8 April 2015 explains, Mr Elliott was employed through DFP Recruitment Services from 13 July 2009 until 13 December 2013. That indicates that Mr Elliott was ready and able to conduct work for Esso throughout that period if and when required. If he did not in fact work each working day in that period, it makes no difference to the outcome. The evidence indicates he was available and in fact did conduct work in the capacity of an employee doing precisely the same work which he did prior to reaching 65 years of age.
For those reasons, I find that Mr Elliott satisfies the requirements set out in s. 24(2A)(g)(i) because when he stopped undertaking his last paid work, he was then working for the successor of his former employer in precisely the same role for a continuous period of at least 10 years which began before he turned 65.
CONCLUSION
I have found that for the purposes of s. 24(2A)(g) of the VE Act,
DFP Recruitment Services was the successor of Esso, for whom Mr Elliott was employed. I have also found that the seven day period between resigning his employment with Esso and signing a contract of employment with DFP Recruitment Services does not result in a break in the continuous period of 10 years during which Mr Elliott worked as an employee. Its purpose was to allow Mr Elliott to resettle in Australia, having worked for the previous two years in Malaysia and to enter into a contract of employment with
DFP Recruitment Services.Although the Repatriation Commission was of the view that having joined
DFP Recruitment Services as its employee, Mr Elliott was not engaged in continuous work between 13 July 2009 and 31 March 2013, I have found that that is not a pre-requisite for satisfying s. 24(2A)(g). He was an employee of Esso’s successor throughout that period and available to do work for Esso as required. If there were gaps in the continuity of work in fact conducted by Mr Elliott, those gaps did not result in his ceasing to be an employee of DFP Recruitment Services.I find that the decision made by the VRB on 1 December 2014 was not the correct decision. I set aside that decision and in substitution determine that Mr Elliott satisfied
s. 24(2A) of the VE Act during the assessment period and therefore qualifies to be paid the pension at the special rate.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member ..............................[sgd]..........................................
Associate
Dated 20 November 2015
Date of hearing 5 October 2015 Counsel for the Applicant Ms R Walsh Advocate for the Applicant Mr M Jorgensen Solicitors for the Applicant Williams Winter Solicitors Advocate for the Respondent Mr K Rudge Solicitors for the Respondent Department of Veterans' Affairs
Key Legal Topics
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Administrative Law
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Statutory Interpretation
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Appeal
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