Hardy and Repatriation Commission (Veterans' entitlements) - [2017] AATA 425

Hardy and Repatriation Commission (Veterans' entitlements) [2017] AATA 425 (5 April 2017)

Division

VETERANS' APPEALS DIVISION

File Number

2015/4940

Re

Alfred Hardy

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President K Bean

Date 5 April 2017

Place Adelaide
The decision under review is affirmed.
............. [Sgd] ...........................................................
Deputy President K Bean
CATCHWORDS
VETERANS’ ENTITLEMENTS – Whether veteran aged over 65 entitled to pension at special rate – Whether by reason of incapacity resulting from his war-caused disabilities, veteran incapable of undertaking remunerative work for more than 8 hours per week – Whether veteran had been employed by same person for 10 years prior to ceasing employment – Decision affirmed.
LEGISLATION
Veterans' Entitlements Act 1986, ss 19, 24, 28
CASES
Carter v Repatriation Commission (2001) 66 ALD 139
Elliott and Repatriation Commission (2015) 148 ALD 193
SECONDARY MATERIAL
Explanatory Memorandum, Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth)
REASONS FOR DECISION
Deputy President K Bean
5 April 2017

The applicant, Mr Hardy, entered the Royal Australian Navy on 24 September 1966 when he was only 18 years old.[1] During his service he was sent to Vietnam and undertook operational service from 22 March 1968 to 11 October 1968 and 16 March 1970 to 9 October 1970, discharging from the Navy on 31 December 1973.
[1] Exhibit R1, T3/1.
Unfortunately, his periods of operational service have left Mr Hardy with very significant disabilities, including post-traumatic stress disorder, chronic airflow limitation, tinnitus and alcohol dependence. As a consequence, he is currently in receipt of the disability pension at 90% of the general rate.[2]
[2] Exhibit R1, T2/B3.
Having ceased work in June 2013, on 30 September 2013, Mr Hardy lodged a claim for an increase in his rate of pension, seeking payment of pension at the special rate.[3] However, a delegate of the Repatriation Commission (the respondent) relevantly decided that his disability pension should be continued at 90% of the general rate,[4] and that decision was subsequently affirmed by the Veterans’ Review Board (the VRB).[5]
[3]     Exhibit R1, T5/4.
[4]     Exhibit R1, T12/60.
[5]     Exhibit R1, T2.
On 22 September 2015, Mr Hardy lodged an application with this Tribunal seeking review of the decision to decline his application for pension to be paid at the special rate, giving rise to this matter.
STATUTORY FRAMEWORK AND ISSUES
As Mr Hardy was already 65 years old when he lodged his application for an increase in his rate of pension, in order to be eligible for the special rate of pension, he must satisfy the terms of s 24(2A) of the Veterans’ Entitlements Act 1986 (the VE Act), which are as follows:
24. Special Rate of Pension
…
(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…

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 425
Decision Date: 5 April 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr Hardy against a decision of the Repatriation Commission regarding his entitlement to a pension at the special rate. The core of the dispute revolved around whether Mr Hardy, who was over 65, was incapable of undertaking remunerative work for more than 8 hours per week due to war-caused disabilities, and specifically, whether he had been employed by the same person, or that person and their predecessors, for at least 10 years prior to ceasing his last paid employment. The appeal was heard by Deputy President K Bean of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were twofold: firstly, whether Mr Hardy's incapacity from war-caused disabilities rendered him unable to work more than 8 hours per week, and secondly, whether he met the continuous employment requirement of 10 years with the same employer or their predecessors. The latter issue was critical to establishing eligibility for the special rate pension under the *Veterans' Entitlements Act 1986*.

The Tribunal's reasoning focused on the interpretation of the 10-year employment requirement. Mr Hardy had worked at the Granites mine for approximately 10.5 years, but during this period, he had technically been employed by three different entities: Bulkhaul, HWE, and finally Newmont, who was his employer when he ceased work. The Tribunal noted that for Mr Hardy to satisfy the 10-year requirement, his earlier employers, Bulkhaul and HWE, would need to be considered predecessors of Newmont. However, the evidence indicated that Newmont had contracted out operations to these companies, and when Newmont transitioned to an owner/operator model, Mr Hardy was directly employed by Newmont. The Tribunal concluded that the evidence did not establish that Bulkhaul and HWE were predecessors of Newmont in the manner required by the legislation. Consequently, Mr Hardy did not meet the 10-year continuous employment criterion.

The Tribunal affirmed the decision under review, finding that Mr Hardy did not qualify for the special rate pension. The Deputy President also considered, but found Mr Hardy did not qualify for, the intermediate rate of pension as he had not met the 10-year employment requirement.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Hardy will satisfy this requirement if, when he ceased his last paid work (in June 2013)[15] he had been working for the same employer, or “for that person and any predecessor or predecessors of that person” for a continuous period of at least 10 years.[16][15] Exhibit R1, T8/37.[16] Veterans’ Entitlements Act 1986 s 24(2A)(g).The evidence In his statement, Mr Hardy described his employment history at the Granites as follows:When I first joined the mines, Newmont (which was a US company) owned the mine and they subcontracted out the work. Just about everyone onsite was a subcontractor.I commenced work with Bulkhaul initially for a period of two years who were a subcontractor to Newmont. They carted ore from the mine to the mill.After two years, I resigned from Bulkhaul and took up a position with HWE.HWE were also a subcontractor for Newmont and they did all the underground mining contract work. They were subcontractors with Newmont for six years and then Newmont decided to go owner/operator so they gave HWE the flick.I then became directly employed by Newmont. I did not leave my employment with HWE simply HWE contract finished on the Friday and I commenced with Newmont on the Monday so there was no lay over between the two employers.All of our long service leave, sick pay and annual leave was transferred to Newmont automatically.[17][17] Exhibit A1, at [35]-[40]. In his oral evidence, Mr Hardy confirmed that when he started truck driving at the Granites for Bulkhaul he was truck driving “on the surface” driving ore “from the mine to the mill”. However, once he was employed by HWE, a different contractor, he began truck driving underground. Mr Hardy was unsure precisely when he started work for Bulkhaul, although he thought this was in 2003. He said he started with HWE on 11 November 2004. He confirmed that Newmont was the owner of the mine but at that stage had contracted out the operations to different companies. He said there was a camp at the mine where everyone who was working at the mine lived. He confirmed that ultimately, Newmont ended their contract with HWE and he was then employed by Newmont directly. He said this was in 2010. Under cross-examination, Mr Hardy said he thought he was with Bulkhaul for two Christmases, which would mean he commenced with Bulkhaul in late 2002. He also confirmed that prior to leaving Bulkhaul he had a disagreement with his supervisor which led to him resigning from Bulkhaul and applying for employment with HWE. He had a different supervisor once he was working for HWE. He also confirmed that he underwent an induction program with HWE, and the relevant records were tendered. A General Induction Questionnaire was signed by Mr Hardy on 12 October 2004 and a completed Assessment Summary was signed by him on 23 November 2004.[18][18] Exhibit R2.Analysis As the parties acknowledged, it is apparent on the evidence that during the time Mr Hardy worked at the Granites, a period of about 10½ years, technically he had three different employers. As Mr Hardy’s employer at the time he ceased work, Newmont, was not his employer throughout the previous 10 years, in order to satisfy the 10 year requirement, he must show that the previous two employers were predecessors of Newmont.

Decision

Reasons for decision

I should add that, although it was not discussed at the hearing, I have also considered whether Mr Hardy may qualify for the intermediate rate of pension, pursuant to s 23(3A). However, as Mr Hardy did not meet the 10 year requirement, I am satisfied that he also did not qualify for the intermediate rate of pension.[22][22] Veterans’ Entitlements Act 1986 s 23(3A)(g).DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2015/4940
Re	Alfred Hardy
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President K Bean
Date	5 April 2017
Place	Adelaide