Griffiths and Comcare - [2007] AATA 1161

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1161
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/146

GENERAL ADMINISTRATIVE DIVISION )

Re JOHN GRIFFITHS

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date22 March 2007
PlaceCanberra

Decision
The decision under review is varied to the extent that the overtime component of Mr Griffiths’ NWE rate calculations from 1 August 1994 is 11 hours 8 minutes. The matter is remitted to Comcare to calculate Mr Griffiths’ entitlement to compensation for incapacity on that basis.

..............................................
Mr S. Webb, Member

CATCHWORDS
COMPENSATION – Incapacity – Normal weekly earnings – Overtime – Effect of enterprise bargaining agreement – Amount of overtime reduced – Comparison to employees in similar employment – Decision varied.
Safety, Rehabilitation and Compensation Act 1988 ss 8, 19
Bortolazzo & Anor v Comcare (1997) 75 FCR 385; (1997) 25 AAR 290; [1997] 515 FCA (12 June 1997)
Re Spurr and Comcare (1999) 28 AAR 424; [1999] AATA 43
Re Watson and Comcare (AAT 12094, 6 August 1997)
REASONS FOR DECISION

22 March 2007 Mr S. Webb, Member

1.      John Griffiths has been incapacitated for work as the result of an injury since 1989. His normal weekly earnings have been determined from time to time for the purpose of calculating the rate of his weekly compensation for incapacity. In February 2005 Comcare determined retrospectively that the amount of overtime used to calculate Mr Griffiths’ normal weekly earnings (NWE) from 1 August 1994 should be adjusted in relation to an applicable industrial agreement that commenced on that date. That decision was affirmed on reconsideration.
2.      The issue for determination by the Tribunal is the correct amount of Mr Griffiths’ normal weekly earnings in the period from 1 August 1994 to the present.
3. Mr Griffiths submits that his normal weekly earnings should be based on the amount of overtime he was working in the period immediately preceding his injury: 15.71 hours per week. He asserts that the decision to reduce the overtime component was incorrectly made under subsection 8(9) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and, in any event, was based on an inappropriate comparison to employees who are not in a similar class of employees to Mr Griffiths. Furthermore Mr Griffiths says that drawing an average amount of overtime from selected employees (three above and three below Mr Griffiths in terms of seniority) does not fairly reflect the amount of overtime available to, or worked by, comparable employees that would have been available to him if he had continued in his previous employment.
4.      As will appear I do not agree.
5.      The amount of compensation for incapacity that is payable to an injured employee is to be calculated with reference to the formulae set out at section 19 of the Act. Relevantly, it is necessary to determine the amount of the injured employee’s normal weekly earnings[1] pursuant to section 8 of the Act. As can be seen for subs 8(2) the…

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.

Continue reading Griffiths and Comcare

Details

AGLC: Griffiths and Comcare [2007] AATA 1161
Case: [2007] AATA 1161
Decision Date: 22 March 2007

CaseChat Overview and Summary

Mr Griffiths lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988, following an injury sustained during his employment. The dispute centred on the calculation of his normal weekly earnings (NWE), specifically the inclusion of overtime hours in that calculation. The matter was initially heard in the Administrative Appeals Tribunal, before being remitted to the Federal Court for further determination. The court had to decide the appropriate method for calculating the NWE, particularly the inclusion of overtime hours, and whether the reduction of these hours due to an enterprise bargaining agreement should affect the NWE calculation.

The legal issues before the court were whether the reduction in overtime hours, as a result of an enterprise bargaining agreement, should reduce the overtime component of the NWE calculation, and how this affected the overall calculation of the NWE. The court considered relevant case law, including Bortolazzo v Comcare, Re Spurr and Re Watson, to determine the appropriate method for calculating NWE, particularly in relation to overtime. The court also had to consider whether the reduction in overtime hours should be compared to employees in similar employment, as per the statutory provisions.

The court held that the reduction in overtime hours should indeed affect the NWE calculation. It found that the NWE should be calculated by comparing the overtime hours of the employee in question to those of employees in similar employment. The court varied the previous decision by reducing the overtime component of Mr Griffiths' NWE calculation to 11 hours 8 minutes. It remitted the matter to Comcare to recalculate Mr Griffiths' entitlement to compensation for incapacity based on this adjusted NWE. The decision underscored the importance of accurately calculating NWE in compensation claims, particularly in relation to overtime hours.

The court's final orders were that the decision under review was varied to reflect the adjusted overtime component of Mr Griffiths’ NWE calculation, and the matter was remitted to Comcare for recalculation of his compensation entitlement. This decision highlighted the need for careful consideration of all relevant factors, including enterprise bargaining agreements, in the calculation of NWE for compensation claims.

Orders

Orders of the court

The decision under review is varied to the extent that the overtime component of Mr Griffiths’ NWE rate calculations from 1 August 1994 is 11 hours 8 minutes. The matter is remitted to Comcare to calculate Mr Griffiths’ entitlement to compensation for incapacity on that basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN GRIFFITHS