FREW and COMCARE - [2011] AATA 597

CATCHWORDS – COMPENSATION – normal weekly earnings – calculating increase by reason of increase in salary by way of increment in range of pay applicable to position – question of fact determined by whether employee can demonstrate that “would have” satisfied criteria for increment if had continued in that employment – question of fact and not of speculation – decision affirmed.

COMPENSATION – workplace agreements setting rates of pay and regulating increments and the like for a range of employees in an agency – distinguished from negotiated workplace agreements between an employer and an individual employee – relevance of each depends on its terms.

COMPENSATION – performance appraisal scheme provided for under workplace agreement – relevance in determining whether employee would have received an increment in a range of pay applicable to position – determined by its terms.

ASP Ship Management Pty Ltd v Wood [2007] FCAFC 142; (2007) 161 FCR 429; 97 ALD 581
Comcare v Hart [2004] FCA 1067
Comcare v Thompson [2000] FCA 790; (2000) 100 FCR 375; 175 ALR 163; 31 AAR 389
McDonald v Department of Defence [1990] FCA 882
Military Rehabilitation and Compensation Commission v Perry [2007] FCA 1586; (2007) 164 FCR 307; 98 ALD 638
Re Mitchell and Military Rehabilitation and Compensation Commission [2005] AATA 221; (2005) 85 ALD 234
Re SRGGGG and Military Rehabilitation and Compensation Commission [2006] AATA 1151

Compensation (Commonwealth Government Employees) Act 1971
Industrial Relations Act 1988
Public Service Act 1922 s 82D
Public Service Act 1999 s 23(1)
Safety, Rehabilitation and Compensation Act 1988 ss 7(4), 8(1), 8(3), 8(6)(c), 8(7), 8(8), 8(9), 8(9A), 8(9B), 8(9C), 8(9D), 8(9E), 8(9F), 8(9G), 8(10), 9(1), 14, 19, 19(2), 19(2A), 19(3), 131(4)
Superannuation Act 1976
Workplace Relations Act 1996 ss 4(1), 170LT, 326, 328

Public Service Classification Rules 2000 r 9(1)

Centrelink Agreement 2006-2009
Centrelink Agreement 2009-2011

DECISION AND REASONS FOR DECISION [2011] AATA 597

ADMINISTRATIVE APPEALS TRIBUNAL )

) 2011/0299

GENERAL ADMINISTRATIVE DIVISION )

Re:DAVID FREW

Applicant

And:COMCARE

Respondent

DECISION

Tribunal: Deputy President S A Forgie

Place: Melbourne

Date: 26 August 2011

Decision:The Tribunal decides:
to affirm the decision of the respondent dated 21 January 2011 affirming its earlier decision dated 17 November 2010.
S A Forgie
Deputy President

REASONS FOR DECISION

Mr Frew, who is employed as an APS 5 by Centrelink, suffered an injury since described by Comcare as “aggravation of displacement of intervertebral disc lumbar”. He first sought medical treatment for it on 26 March 2007 but continued working until 9 October 2007 when he ceased work due to incapacity. By virtue of s 7(4) of the Safety Rehabilitation and Compensation Act 1988 (SRC Act), Mr Frew is deemed to have sustained his injury on 26 March 2007 being the earlier of those two days. On 11 October 2007, when he was working at his substantive level of an APS 5, he claimed compensation for that injury. On
2 February 2008, Comcare accepted liability to pay compensation to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: FREW and COMCARE [2011] AATA 597
Case: [2011] AATA 597
Decision Date: 26 August 2011

CaseChat Overview and Summary

In the case of Frew v Comcare, the Federal Court was asked to determine how to calculate an employee's normal weekly earnings for the purposes of determining compensation for a work-related injury. The dispute centred on the appropriate method for assessing an increase in salary by way of an increment in the pay range applicable to the employee's position. The Court was tasked with deciding whether the employee could demonstrate that they "would have" satisfied the criteria for the increment if they had continued in that employment, and whether this was a question of fact or speculation.

The legal issues before the Court included the interpretation of workplace agreements that set rates of pay and regulated increments for a range of employees, as opposed to negotiated agreements between an employer and an individual employee. The relevance of each type of agreement depended on its terms. Additionally, the Court had to consider the role of a performance appraisal scheme provided for under a workplace agreement in determining whether an employee would have received an increment in the pay range applicable to their position. The Court concluded that these matters were questions of fact to be determined by the terms of the relevant agreements and schemes.

The Court's reasoning was that the question of whether the employee would have satisfied the criteria for an increment was a matter of fact, not speculation. The decision hinged on whether the employee could demonstrate, based on the terms of the workplace agreements and the performance appraisal scheme, that they would have met the criteria for the increment if they had remained in their employment. The Court affirmed the decision that this was a question of fact and not speculation, and that the determination was to be made based on the terms of the relevant agreements and schemes. The Court found that the decision-maker had correctly applied the relevant principles in determining the employee's normal weekly earnings for compensation purposes.

Orders