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 NWE amount includes an amount calculated in relation to regular overtime the employee was required to work during a period determined under section 9.  It is not in issue that Mr Griffiths worked 15.71 hours overtime during that period.  The amount of Mr Griffiths NWE thus calculated must be adjusted during the period of his continuing employment in line with adjustments to the minimum amount payable to the class of employees of which he was a member on the date of his injury pursuant to subsections 8(9), 8(9A), 8(9B), 8(9C) and 8(9D).  Furthermore, if the amount of Mr Griffiths’ NWE exceeds the amount he would have earned if he had continued to be employed in his previous employment then his NWE must be reduced by the amount of the excess.[2]  The policy underlying these provisions is that during a period of incapacity for work an injured employee should neither be better nor worse off as a result of a work-related injury.[3]  The clear purpose of subs 8(10) is to prevent an injured employee being better off as a result of being incapacitated[4] whereby the rate of weekly compensation for incapacity is to be assessed by the legitimate expectation of the injured employee to a rate of income but for incapacitating injury.[5]

[1] Subsection 19(2).

[2] Subsection 8(10).

[3] Bortolazzo & Anor  v Comcare (1997) 25 AAR 290 at 293.

[4] Re Spurr and Comcare (1999) 28 AAR 424 at 428.

[5] Re Watson and Comcare (AAT 12094, 6 August 1997) at paragraph 66.

6.      Mr Griffiths received intermittent compensation payments for incapacity from 1989.  He resigned from Commonwealth employment on 10 June 1992.  He has been paid regular weekly compensation for incapacity since that date.  In the period from 30 August 1991 to 1 August 1994 Mr Griffiths was paid weekly compensation for incapacity based, in relevant part, on 15.71 hours overtime per week.[6] 

[6] Documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), see T31 folio 66.

7.      On 1 August 1994 the Australian Capital Territory Public Sector (Enterprise Bargaining) Agreement 1994 (EBA) came into effect.[7]  The EBA had the effect, relevantly, of replacing certain payments in relation to public holidays, shift penalties, overtime rates and meal allowances with a supplementary payment and an increased composite hourly rate.[8]  It was said that the EBA also introduced network changes that reduced shift length and the availability of overtime. 

[7] T84.

[8] See T84 folios 256-257.

8.      Prior to the commencement of the EBA Mr Griffiths overtime component of his NWE was 15.71 hours.  It must be understood that the 15.71 hours did not represent actual overtime hours worked (10 hours 28 minutes per week)[9] but was itself the result of applying then applicable overtime rates to the actual hours Mr Griffiths worked in the relevant period prior to his injury.  Overtime was, at that time, calculated on the basis of ‘time and a half’ or ‘double time’ rates, depending on when the overtime was worked.  The EBA removed those rates of overtime payment.  In consequence the overtime component of Mr Griffiths’ NWE was reduced to 9 hours 46 minutes per week.[10]  Thus it can be seen that Mr Griffiths, like any other ACTION bus driver at the time, lost access to overtime rates of payment but gained an increased ‘composite’ hourly rate of pay.  Mr Griffiths’ NWE was adjusted to reflect the increased hourly rate on commencement of the EBA and increased from $12.68 to $17.63.[11]

[9] See Exhibit R2.

[10] T31 folio 66.

[11] See T41, T49 and T83.

9.      I am reasonably satisfied that those changes in Mr Griffiths’ NWE amount correctly reflect the effect of the EBA and render Mr Griffiths no better or worse off as a result of his incapacity for work.  However, that does not conclude the matter.  Mr Griffiths’ overtime component of his NWE was reduced from 10 hours 28 minutes to 9 hours 46 minutes.  It remains to be determined whether that is an appropriate reduction pursuant to subs 8(10) of the Act.

10.     Following the coming into effect of the EBA varying amounts of overtime were used when calculating Mr Griffiths’ NWE from time to time.[12]  The basis of these overtime amounts is not always clear on the evidence.  Nevertheless, those variations were addressed by Comcare’s determination on 22 February 2005,[13] as affirmed on reconsideration.[14]  The effect of that determination was to apply a consistent amount of regular overtime, 9 hours 46 minutes, for the purpose of recalculating Mr Griffiths’ NWE from 1 August 1994.  The rationale for the overtime hours was by comparison to a cohort of 6 employees, three more senior to Mr Griffiths at the time of his injury, and three more junior.

[12] See T31, T35, T41 and T49.

[13] T75 consequent upon T54, T55, T63 and T69.

[14] T85.

11.     Mr Griffiths submitted that the comparison to that cohort was not reasonable on the basis that one of the selected employees (McDonald)[15] was a person more senior than Mr Griffiths who was employed in the Belconnen ACTION depot.  As Mr Griffiths had been employed in the Woden ACTION depot and overtime was (and apparently still is) allocated on the basis of seniority in each depot, I am satisfied that it is not appropriate to include a person from a different depot for the purposes of comparison.  The test to be applied concerns Mr Griffiths’ legitimate expectation of access to overtime.  It may be appropriate to assess that expectation against the actual overtime worked by comparable employees during the relevant period.  If Mr Griffiths had remained in his previous employment either on the date of his injury or on the date his employment with the Agency ceased, he would have had a legitimate expectation of access to overtime in the depot in which he worked (Woden) on the basis of his seniority.  He would not have had a legitimate expectation of access to overtime in any other depot.  Thus it is not appropriate to include any employee from a depot other than the Woden depot for the purposes of assessing Mr Griffiths’ legitimate expectation of access to overtime. 

[15]  See T76 folio 166.

12.     I do not accept Mr Griffiths’ proposal that a single employee should be selected for the purposes of comparison.  Plainly enough Mr Griffiths would want to select a person of similar seniority who worked a lot of overtime.  That approach would be as unreasonable as Comcare selecting a single employee of similar seniority who worked little overtime.  As overtime was and continues to be allocated on the basis of choice and seniority, such an approach is infected with subjectivity to the extent that it is unreasonable and inappropriate for present purposes.

13.     Thus it seems to me reasonable to calculate Mr Griffiths’ legitimate expectation to regular overtime on the basis of the remaining cohort of five senior bus drivers selected for that purpose.[16]  Recalculating the average using precisely the same methodology previously applied, with the exception of Mr McDonald, Mr Griffith would be entitled to an overtime component of 11 hours 8 minutes per week for NWE purposes from 1 August 1994.  I am reasonably satisfied that is an amount of hours that is reasonable on the available evidence and so find.

[16] T76 folio 166.

14.     I note that the Agency provided information concerning the present employment status of those selected as a suitable cohort for assessing an appropriate amount of overtime for Mr Griffiths’ NWE calculation.[17]  Mr Hall of the Agency was not called to give evidence concerning the particular details of “the six most senior current full-time employees as at 7 August 2006” to whom he generally referred.  That information does not persuade me to conclude the matter differently.

[17] Exhibits R1 and R2.

15.     Thus 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.

16.     As the matter is resolved in a manner favourable to Mr Griffiths, I am minded to order Comcare to pay his reasonable costs in these proceedings.  However no submissions were made on this point during the hearing.  The parties have seven days in which to make submissions in relation to costs.  In the absence of such submissions orders for costs against Comcare will be made.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

Signed:         .....................................................................................
  Joe Meagher, Associate

Date/s of Hearing  1 March 2007

Date of Decision  22 March 2007
Representative for the Applicant     Mr J Coleman

Solicitor for the Applicant                 Superannuated Commonwealth Officers Association

Counsel for the Respondent           Mr B Dubé
Solicitor for the Respondent            Sparke Helmore