Grimsey and Repatriation Commission - [2000] AATA 1157

DECISION AND REASONS FOR DECISION [2000] AATA 1157

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2000/28

VETERANS' APPEALS   DIVISION     )
           Re      WILLIAM JOHN GRIMSEY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date22 December 2000
PlaceHobart

Decision      The decision under review is affirmed.
  ..............................................
  Part-Time Member
CATCHWORDS
Veterans' Affairs – special rate of pension – eligibility provisions – meaning of remunerative work – loss of salary, wages or earnings.
Veterans' Entitlements Act 1986 – s.24
Re Hornery and Repatriation Commission 52 ALD 317
Banovich v Repatriation Commission 69 ALR 395
Fry v Repatriation Commission 52 ALD 776

REASONS FOR DECISION

22 December 2000 Ms A F Cunningham (Part-time Member)

The applicant has sought the review of a decision made by the Repatriation Commission on 9 December 1998 which was affirmed by the Veterans' Review Board on 4 February 2000 continuing the applicant's rate of pension at 100% of the General Rate. The applicant contends that he is eligible for the Special Rate of pension payable pursuant to s.24(1) of the Veterans' Entitlements Act 1986 ("the Act").
At the hearing the applicant was represented by Mr R M Webster and the respondent by Mr M Castle. The applicant gave oral evidence at the hearing and also called Mr Donald Sawford to give evidence in support of his application. In addition the Tribunal had before it the T documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975.
The applicant gave evidence of his employment history. He stated that his last full-time employment position was with Ansett Air Freight as an operation supervisor at the Hobart Airport. After experiencing back pain he was on sick leave for a period, but after returning to work the pain became more severe and he ultimately underwent surgery to clear nerve passages. Following a period of convalescence of approximately 6 months, his operating neurosurgeon, Dr Graham Duffy cleared him fit for work. However he subsequently discovered that there was no position for him to return to and he was retrenched, this was despite being promised the position of seafood export and import manager with Ansett Air Freight upon his return to work.
The applicant said that he then commenced the process of seeking alternative employment. He contacted Safcol, a former employer, but was informed that they had no vacancies. He also sought work as a truck driver, having worked in that capacity in the 1970's. He said that he was confident that he would be able to resume such work as his back condition had improved some 6 to 8 months after the operation. The applicant said that he had contacted TNT who had taken over the Ansett Air Freight business, but was informed that they had no positions and that people were currently being retrenched. He also responded to job advertisements through the newspaper, but without success. When he made inquiries for a taxi licence also a previous type of employment in which he had been engaged, he was informed by the Transport Department that he would not be granted a licence because of his heart condition.
In 1997 the applicant commenced voluntary work for the Kingston RSL Club, maintaining their golf course and swimming pool. He said that he spent the early hours of the morning between 5.30/ 6.00 am and 8 am looking after the swimming pool and then went to the golf course where he worked until 1 or 2 pm whipper snipping and driving the ride-on lawn mower. He said that he also used a roller for the greens area.
The applicant informed the Tribunal that it was towards the end of 1999 when he first began to feel tired and breathless when working at the golf course. He also experienced breathing difficulties associated with the swimming pool maintenance and in particular from pouring chemicals into the pool and cleaning the dressing rooms. He said that he found that he needed frequent rests during his work. He eventually asked the Club whether somebody could assist him with his tasks. The Club agreed to this but by 27 August 1999 the applicant had resigned from his position principally because of his breathing difficulties.
By the end of the year he was asked to return in an advisory capacity which he agreed to do as there was no manual work involved. He was responsible for checking the balance readings for the swimming pool and doing odd jobs around the Club. For this the applicant was paid the sum of $70 per week. Whilst classed as a wage, the applicant said that it really only met his out of pocket expenses in that he used his own tools and drove his car to and from work.
Under cross-examination the applicant informed the Tribunal that during the period when he worked for the RSL Club between 1997 and his resignation in August 1999 he was paid the sum of $50 per week to cover his out of pocket expenses. He said that he then worked an average of 25 hours per week.
Evidence was also given to the Tribunal by Donald Sawford, who holds the position of General Manger of the Kingston RSL Club. Mr. Sawford informed the Tribunal that the applicant currently worked for the Club on a casual basis for which he was paid the sum of $70 per week being "a wage set by agreement between him and the Club". He confirmed that the applicant worked in a supervisory role and that the Club recognised his expertise in swimming pool management. He said that the applicant also performed other odd jobs around the place, such as driving club vehicles from time to time on collection rounds, changing locks and light bulbs and so forth. He informed the Tribunal that during the winter months the applicant worked an average of 10 to 15 hours and up to 20 hours during the summer months. He said that the Club had a full-time employee who was paid approximately $180 per week for a 4 to 5 hour day.
The applicant has been assessed as being entitled to a pension at 100% of the General Rate on the basis of his accepted disabilities which more recently had included chronic bronchitis and emphysema. The applicant now contends that he is eligible for the Special Rate of pension under s.24(1) of the Act.
Whilst it was accepted on behalf of the respondent that the applicant met the provisions of sub-paragraphs (a) and (b) of s.24(1), Mr. Castle contended that the applicant was not eligible in that he failed to meet the requirements of sub-section (c) which reads as follows:
"(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity."
Mr. Webster, on behalf of the applicant argued that if the Tribunal found that the applicant failed to satisfy the provisions of sub-section (c) above, then in the alternative he could qualify under sub-section (b) which reads:
"(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking."

In accordance with the provisions of s.120(4) of the Act, the Tribunal must decide the issues to its reasonable satisfaction. The Tribunal accepts the evidence given on behalf of the applicant as to his employment history. The evidence remained uncontested during cross-examination.
It was Mr Castle's contention that the applicant was continuing to undertake remunerative work. He pointed out that the applicant is in receipt of monies in excess of the amount that he was paid when he resigned from his position with the RSL on 27 August 1999 and could not therefore be said to have been suffering a "loss of salary or wages, or of earnings on his or her own account" as required by s.24(1)(c). Whilst he accepted that the health problems that the applicant suffered causing his resignation in August 1999 were due to his emphysema, an accepted condition, he pointed out that when the applicant resumed work at the end of 1999, whilst in a different capacity, he worked for up to 20 hours per week for which he was remunerated the sum of $70. This was $20 in excess of the amount he was paid at the time of his resignation in August 1999.
Mr. Webster, on behalf of the applicant contended that the applicant was not engaged in remunerative work and that the $70 paid to him each week was paid in the nature of an honorarium and could scarcely be deemed a wage in the usual sense. He pointed out that he was initially paid nothing for his work for the RSL Club and then received $50 per week.
Remunerative work is defined in s.5 of the Act as being any remunerative activity. The Full Court of the Federal Court of Australia in the decision of Banovich v Repatriation Commission 1986, 69 ALR 395 determined that the phrase "remunerative work that the veteran was undertaking" did not refer to any particular job that the veteran had, but to the type of work that the veteran previously undertook. This interpretation has subsequently been supported by the Federal Court in Fry v Repatriation Commission 1997, 47 ALD 776 and by the Full Tribunal in Re Hornery and Repatriation Commission 52 ALD 317 at page 335. The Tribunal went on to say in that case:
"The relevant remunerative work need not be the last remunerative work that the veteran was undertaking, but it is necessary that it be remunerative work that the veteran would have been undertaking at the relevant time in the assessment period had the veteran not been incapacitated by his war-caused disabilities".
Mr. Webster submitted that the last real remunerative work in which the applicant was engaged was his employment with Ansett Freight and that since that time the applicant the applicant had been seeking to engage in remunerative work and qualified in accordance with the provisions of s.24(2)(b). Mr Webster stated that since his work with Ansett Freight, the applicant has worked intermittently and on a casual basis. However as Mr. Castle pointed out, if the Tribunal accepts that the applicant's last remunerative work was with Ansett Freight, the evidence is that this work was concluded because of his back condition which is not an accepted war-caused disability.

The only evidence before the Tribunal of the applicant's job seeking attempts referred to the period of time following his retrenchment from Ansett Freight. There is insufficient evidence before the Tribunal to suggest that the applicant would have been successful in obtaining work but for his war-caused disabilities. His job applications were made at a time when the applicant had ceased his previous employment because of his back condition which is not a war-caused disability.
The Tribunal does not agree with the submissions made on behalf of the applicant that the work that the applicant was engaged in with the RSL Club was not remunerative work for the purposes of s.24 of the Act. The evidence was that whilst the applicant initially performed services for the Club in a voluntary capacity, this was at a time when the Club was experiencing severe financial difficulties and the applicant was prepared to work as a volunteer to assist them with their cost-cutting measures. However from some time in 1997 he received the sum of $50 per week and the sum of $70 per week when he returned to work at the Club at the end of 1999. His evidence was that he was working approximately 20 hours each week in the summer months spread over a 5 day week. The Tribunal does not accept that the $70 was paid simply to meet his expenses and there was no detailed evidence before the Tribunal as to the nature of any of those expenses. As the General Manager, Donald Sawford said in his evidence, it was a wage that was set by agreement between the Club and the applicant. It is noted that the applicant received the same amount during the winter months when he worked between 10 and 15 hours per week.
The evidence before the Tribunal was that whilst the duties that the applicant currently has in relation to maintaining the swimming pool and his work for the Club are of a supervisory nature, he is nevertheless in receipt of monies in a similar amount, if not more than he was receiving prior to his resignation in August 1999. Whilst the Tribunal accepts that the remuneration received by the applicant is not high, it does not accept that it is merely an honorarium, covering the applicant's out of pocket expenses.
The Tribunal having so found, the applicant fails to satisfy the provisions of s.24 in order to qualify for the Special Rate of pension.
Accordingly the Tribunal affirms the decision under review.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  15 November 2000
Date of Decision  22 December 2000
Solicitor for the Applicant         Mr R M Webster
Solicitor for the Respondent    Mr M Castle (Dept. of Veterans' Affairs)