Golubenko and Repatriation Commission (Veterans' entitlements) - [2017] AATA 885

Golubenko and Repatriation Commission (Veterans' entitlements) [2017] AATA 885 (8 June 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/0528
Re:Stanley Golubenko
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Regina Perton, Member
Date:8 June 2017
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
VETERANS’ APPEALS - pension at special rate – claim lodged after applicant’s 65^th birthday – whether 10 years of work in same field as employee when working for different companies - decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 24(2A), 119(g)
CASES
Carter v Repatriation Commission (2001) 66 ALD 139
Re Hardy and Repatriation Commission [2017] AATA 425
Re Elliott and Repatriation Commission (2015) 148 ALD 193
James v Repatriation Commission [2004] FMCA 548
Kowalski v Repatriation Commission [2011] FCAFC 43
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd and Anor (2005) 222 CLR 194
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Sherman v Repatriation Commission [1991] FCA 238
Thomson v Repatriation Commission (2000) 96 FCR 550
White v Repatriation Commission [2001] FCA 1585
SECONDARY MATERIALS
Commonwealth, Parliamentary Debates, House of Representatives, 9 June 1994, 1809 (Kim Beazley, Minister for Finance)
Explanatory Memorandum, Veterans’ Affairs (1994-1995 Budget Measures) Legislation Amendment Bill 1994
REASONS FOR DECISION
Regina Perton, Member
8 June 2017

Stanley Golubenko was born in April 1946. He was conscripted for National Service in the Australian Army (the Army) and served from 1 May 1968 to 30 April 1970. His service included operational service in Vietnam from 10 December 1968 to 15 October 1969. On 11 April 2014 Mr Golubenko’s service disability pension was increased to 100 per cent of the general rate, effective from 6 September 2013. He suffers from the following medical conditions which have been accepted by the Repatriation Commission (the respondent) as war-caused: Post-traumatic Stress Disorder (PTSD), Lumbar Spondylosis, Osteoarthritis Tibio-Fibular Joint Left Knee, Ganglion Left Lateral Knee Joint, Osteoarthritis 1st MTP Joint Both Feet, Solar Keratoses, Bilateral Sensorineural Hearing Loss, Tinnitus, Tinea Pedis and Dyshyrosis.
On 26 May 2014 Mr Golubenko applied to the Veterans’ Review Board (VRB) for review of the decision and sought a special rate pension, which is a higher rate of pension paid to a person who is unable to work due to accepted war-caused disabilities alone.
On 10 December 2014 the VRB affirmed the respondent’s decision. On 5 February 2015 Mr Golubenko applied to the Tribunal for review of the decision.
LEGISLATIVE BACKGROUND
The provisions concerning qualification for special rate are set out in s 24 of the Veterans' Entitlements Act 1986 (the VE Act) for a person whose claim was lodged after the person’s 65^th birthday are:
…
(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…

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

Case: [2017] AATA 885
Decision Date: 8 June 2017

CaseChat Overview and Summary

This matter came before the Tribunal concerning Mr Golubenko's application for review of the Repatriation Commission's decision regarding his eligibility for a pension at the special rate under the *Veterans' Entitlements Act 1986* (VE Act). The core of the dispute centred on whether Mr Golubenko met all the criteria stipulated in section 24(2A) of the VE Act, specifically paragraph (g), which pertains to the duration and commencement of his last paid work relative to his 65th birthday.

The Tribunal was required to determine whether Mr Golubenko had been working for his last employer, or a predecessor, for a continuous period of at least 10 years that commenced before he turned 65 years of age. The respondent accepted that Mr Golubenko satisfied all other paragraphs of section 24(2A), making this continuity of employment the sole point of contention.

The Tribunal found that Mr Golubenko did not satisfy section 24(2A)(g) of the VE Act. While Mr Golubenko provided a history of his employment, including his apprenticeship at the Government Aircraft Factory and subsequent employment in the security industry, the Tribunal's analysis focused on his employment with WB Engineering Pty Ltd and its successor, Chubb Security. Mr Golubenko worked for WB Engineering from 10 January 1994 until 30 June 2004, and then for Chubb Security from 1 July 2004 until 30 June 2008. The Tribunal concluded that this period of employment did not meet the requirement of a continuous 10-year period that began before he turned 65. Consequently, the Tribunal affirmed the decision under review, finding Mr Golubenko ineligible for payment of a pension at the special rate.

Orders

Orders of the court

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Background

Background to the litigation

On 10 December 2014 the VRB affirmed the respondent’s decision. On 5 February 2015 Mr Golubenko applied to the Tribunal for review of the decision. LEGISLATIVE BACKGROUND The provisions concerning qualification for special rate are set out in s 24 of the Veterans' Entitlements Act 1986 (the VE Act) for a person whose claim was lodged after the person’s 65th birthday are:…(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, vocation 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.…ISSUE The respondent accepted that Mr Golubenko satisfies all paragraphs in s 24(2A) of the VE Act except s 24(2A)(g). The only issue to be determined by the Tribunal is whether, when Mr Golubenko ceased paid employment, he had been working for his last employer, or predecessor, for a continuous period of 10 years that began before he turned 65 years of age. HAD MR GOLUBENKO BEEN WORKING FOR HIS LAST EMPLOYER, OR PREDECESSOR, FOR A CONTINUOUS PERIOD OF 10 YEARS THAT BEGAN BEFORE HE TURNED 65? Mr Golubenko told the Tribunal that he and his family migrated to Australia from Germany in 1950. He attended Sunshine Technical School and left after the equivalent of Year 10 to commence an apprenticeship with the Government Aircraft Factory (GAF) as an aviation sheet metal worker. He was then called up to the Army. After he left the army in 1970, Mr Golubenko returned to the GAF where he remained until he was retrenched in the early 1990s. He then commenced employment in the security industry at the age of 47 years. He worked for WB Engineering Pty Ltd (WB Engineering) at the Port of Melbourne from 10 January 1994 until 30 June 2004, when Chubb Security (later known as MSS Security) won the contract for security services at the Port of Melbourne and his employment was terminated. He said that on 1 July 2004 Chubb Security hired him in the same position as previously until 30 June 2008. His employment was terminated when ISS Security won the contract for security services at the Port of Melbourne to commence on 1 July 2008.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Golubenko does not satisfy s 24(2A)(g) of the VE Act and is not eligible for payment of a pension at the special rate. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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