Gray v Comcare

[2004] FCA 1037

FEDERAL COURT OF AUSTRALIA

Gray v Comcare [2004] FCA 1037

WORKERS COMPENSATION – casual Commonwealth employees – appeal from decision of Administrative Appeals Tribunal (AAT) – statutory compensation entitlement calculated by reference to ‘normal weekly earnings’ – ‘normal weekly earnings’ calculated by reference to hours actually worked during weeks of relevant employment period – whether weeks during which casual employee worked no hours owing to illness included in relevant employment period – whether payment of loading to casual employee a relevant consideration for purpose of determining normal weekly earnings under statutory formula.

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 8, 9, 19

ANNA GRAY v COMCARE
A 30 OF 2003

GYLES J
12 AUGUST 2004
SYDNEY (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 30 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	ANNA GRAY APPLICANT
AND:	COMCARE RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	12 AUGUST 2004
WHERE MADE:	SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.   The decision of the Tribunal will be set aside and, in lieu thereof, the respondent’s reviewable decision dated 24 February 2002 will be set aside. 

2.   The respondent is to pay the costs of the applicant.

3.   The matter is stood over for the parties to agree upon the appropriate order.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 30 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	ANNA GRAY APPLICANT
AND:	COMCARE RESPONDENT

JUDGE:	GYLES J
DATE:	12 AUGUST 2004
PLACE:	SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

1. This case concerns the application of a statute to circumstances not squarely contemplated by its terms.  For the purpose of fixing amounts to be paid by way of compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) it is necessary to arrive at an amount described as ‘normal weekly earnings’ (NWE) of an employee. That topic is dealt with by s 8 of the Act, supplemented by s 9. Section 8(1) is as follows:

   ‘For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
   
   where:

   NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;

   RP is the employee's average hourly ordinary time rate of pay during that period; and

   A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.’

2. Section 9(1) is as follows:

   ‘For the purposes of calculating the normal weekly…