Hart and Comcare

[2003] AATA 1107

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1107

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2002/347

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN ANTHONY HART

Applicant

And COMCARE

Respondent

DECISION

Tribunal Michael Sassella
Senior Member

Date5 November 2003

PlaceCanberra

Decision The decision under review is set aside.  In its place the tribunal decides that, with effect from 18 October 1999, the applicant’s NWE should be regarded as the NWE of an ASO 4 officer at Quamby Youth Detention Centre.  The decision having been favourable to the applicant, he qualifies for payment of his costs associated with this application in accordance with the provisions in the tribunal’s General Practice Direction.

...............................................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION - weekly incapacity payments - rate of payment - normal weekly earnings – restructure in workplace after employee ceased work there – which new position is equivalent to position formerly occupied by employee

Safety, Rehabilitation and Compensation Act 1988 ss 8(1), (2), (5), (6), (9), (9A), (9B), (9C), (9D), (10), 9(1), (2), (4), 14(1), 19(1), (2)

Davies and Comcare, Re (AAT no 9600, 1 August 1994)

McDonald v Department of Defence [1999] FCA 882

O’Shea and Comcare, Re (1998) 27 AAR 394

Thompson and Comcare, Re (2000) 64 ALD 187

Thompson and Comcare, Re (2002) 69 ALD 762

REASONS FOR DECISION

5 November 2003 Michael Sassella
Senior Member     

RESULT

1.      The tribunal has decided that, in assessing the rate of Mr Hart’s weekly incapacity payments, Comcare should regard his normal weekly earnings (“NWE”) as those of an ASO 4 officer at Quamby Youth Detention Centre.

BACKGROUND

2. Mr John Anthony Hart (“the applicant”) was injured in 1998 when working in the ACT at the Quamby Youth Detention Centre (“Quamby”). The injury was in the form of a psychiatric condition, “depression with anxiety symptoms”.. He was an Administrative Service Officer (“ASO”) (class) 2 with some experience acting at ASO 3 and ASO 4 levels. Comcare accepted that it was liable to pay him compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[1] and that he qualified for incapacity payments under s 19 of the Act. In assessing the level of those payments Comcare ("the respondent") decided to treat him as if he was an ASO 3 in establishing his NWE. Mr Hart considered that he should be assessed as if an ASO 4.

[1] Relevant statutory provisions are reproduced in Schedule 2 to these reasons.

ISSUES

3. Section 19(2) of the Act deals with calculation of weekly incapacity payments in the following way. Consideration is given to Mr Hart’s current weekly earnings. These are compared to his NWE. If the NWE is higher than the current weekly earnings then he is paid the difference as compensation to bring his earnings up to the NWE level. If his actual earnings are equal to or greater than his NWE then he receives no incapacity payments. It is thus essential to derive a NWE figure.

4. Sections 8 and 9 of the Act deal with NWE. The basic formula in s 8(1) requires an assessor to work out the average number of hours a week Mr Hart worked at Quamby in the “relevant period”. This is then multiplied by the average rate of pay per hour during the relevant period. The assessor then adds in any allowances payable to Mr Hart in respect of his employment during the relevant period unless they were allowances in respect of special expenses incurred.

5. Where someone such as Mr Hart worked regular overtime before the injury an additional amount is added into the NWE which is the product of the average hours of overtime worked weekly in the relevant period multiplied by the average overtime rate of pay during the relevant period (s 8(2) of the Act).

6. Over time the NWE can be increased to take account of increments Mr Hart would have earned had he remained in position (s 8(6) of the Act). The same applies regarding increases in award wage rates or similar rises under statute law if Mr Hart remains an employee under the Act (s 8(9A)(b), (9B) of the Act). Mr Hart works now for the ACT Department of Education and Community Services (“DECS”) as a school groundsman, an entity covered by the Act (ex R1)[2]

[2] Exhibits are listed in Schedule 1 to these reasons.

7. Section 8(10) prevents an employee such as Mr Hart from faring better under the above NWE provisions than he would have done had he remained in his pre-injury employment. This provision was applied to Mr Hart on 8 October 2001 to reduce his NWE from $1,021.29 to $813.33 (T112).

8. Section 9 of the Act relates to identification of the “relevant period”. The relevant period is presumed to be the two weeks before the injury (s 9(1)). If the pay rate rose during that period because of an award increase or a statutory pay rise the post-rise rate is taken to be applicable throughout the two weeks (s 9(2). Similarly, if an employee’s earnings in the two-week period were depressed because of the employee’s absence for part of the period, that part of the period is disregarded in assessing the earnings (s 9(4)). Presumably the rate payable for the days actually worked is pro-rata’d over the normal number of working days in the two weeks.

9. Problems arose in applying s 8 of the Act in Mr Hart’s case because of structural changes at Quamby in 1999. As of 18 October 1999 the ASO 2 level was abolished (ex R1). Holders of ASO 2 positions at that time were required to reapply for their positions on a merit selection basis. Some 30 staff applied for some seven positions at ASO 3 level. The ASO 3 positions were said to be new positions with new duty statements and criteria for selection. A new case management “model of care” was introduced requiring particular skills of officers at various levels (T131). It was emphasised in T131 that there had not been simple reclassifications of old ASO 2 positions as ASO 3 or old ASO 3 positions as ASO 4, etc.

10.     The issue for determination was whether Mr Hart’s NWE should be assessed by reference to the NWE of the current Quamby ASO 4 positions.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

11. As at 8 October 2001 Mr Hart was earning $618.61 in his new employment with the DECS. His weekly incapacity payments, under s 19(1) of the Act, were $154.05, to bring the NWE total to $813.33 (T112).

12.     Mr Hart worked at Quamby from 1995 until he finished effectively on 12 May 1998 (T19).

13. The respondent relied in large part on material such as that in T131 to suggest that the duties of employees at Quamby had altered considerably under the 1999 restructure. T131 was written by a senior officer in the ACT DECS, which took over responsibility for Quamby in 1999 from the ACT Department of Justice and Community Safety. The gist of the letter was that the duties of the old ASO 3 differ greatly from the new ASO 4 at Quamby. The old ASO 3 was responsible for a sub-unit whereas the new ASO 4 has responsibility for the day to day running of a unit. It was asserted that the selection criteria for a new ASO 4 require a “higher level” than the old ASO 3 criteria.

14.     Mr Hart’s evidence was to the effect that he operated as an ASO 2/ASO 3 when at Quamby in a way consistent with the new philosophy at Quamby.  The inference was that he would have succeeded in obtaining an ASO 4 position under the new structure had he been in a position to apply when applications were called.  He said he had a non-confrontational style of supervision.  He saw himself as there for the inmates who in turn related well to Mr Hart.  He said he was a sort of informal counsellor.  The tribunal noted that Mr Hart was born on 5 October 1963 and was aged 34 when he ceased work at Quamby. 

15.     At the same time the tribunal noted Mr Hart’s statement detailing his problems at Quamby (T7).  This was written in the time leading up to his 1998 compensation claim.  He referred to:

·     Slide of control in the centre.

·     Lack of funding for counselling programs.

·     Too few experienced and casual staff.

·     Continual abuse, threats, assaults, escapes, restraints, damage to property and confiscations, for example, of dangerous weapons.

·     Staff worried, stressed out, feeling insecure.  They relied on senior staff for support.  Mr Hart saw himself as a senior staffer for this purpose.

·     On edge all the time waiting for something to happen.

These factors led to his depression and anxiety.

16. Frank Duggan, Director of the Youth Services Branch of the ACT DECS, has managerial responsibility for Quamby and has had since 19 March 1999. He made a statement relating to this case (ex R8) in which he wrote that the focus at Quamby had changed to emphasise the needs of the individual resident at the expense of the confrontational supervision of residents. At one point in oral evidence he said the emphasis had shifted from security to support. Mr Hart said that he had seen this “new” approach as his priority at Quamby and he had not been opposed in operating in such a fashion. He agreed in cross-examination that the prevailing model at Quamby when he had been there was confrontational.

17.     There was some conflict in the available evidence.  Mr Duggan said in ex R8 that Mr Hart would struggle to perform the new ASO 3 function and would not be suited to ASO 4.  He said that, if Mr Hart was not incapacitated, he would not employ him at either 3 or 4 level because he did not consider Mr Hart’s skill set as suitable for the requirements of the jobs.  In evidence Mr Duggan said that Mr Hart lacked skills in developing and writing reports, information technology work and numeracy.  He pointed to a vocational assessment carried out by Rosemary Dupont in late 2000 as supportive of his views (T89).  The relevant report writing was case management reporting on inmates.  In later evidence it emerged that there are two types of report required.  One can be a short, factual report.  The other is a case management or fuller assessment.  These are interpretative. 

18.     Mr Duggan agreed that he had no personal knowledge regarding how Mr Hart had done his job at Quamby.  Mr Selby, Mr Hart’s counsel, ascertained from Mr Duggan that the types of skills desired at Quamby were a capacity to engage with the young, capability at planning, capacity to contribute to an individual’s case plan derivation and implementation, a neutral trust relationship with young people and fellow workers, skills at negotiation with young people.  In the higher level (ASO 4) job there would be active leadership skills, capacity to support other staff and a tendency to treat the job as a vocation.  Mr Selby referred Mr Duggan to a reference provided for Mr Hart by Mr C Hess, a shift supervisor at Quamby dated 29 July 1997 (T5).  Some of the points in that report were:

·     Mr Hart is genuinely interested in young people.

·     He had acquired a sound knowledge of social welfare issues and youth justice philosophy.

·     He is aware of staff responsibilities for the safety of clients but also believes strongly in the rehabilitation process. 

·     He is most interested in case plans and works hard to get the best possible outcome for every resident. 

·     He works with the more difficult residents and achieves positive outcomes.

·     He is well organised and can implement very worthwhile programs. 

·     His main aim in working with residents is to build up confidence and self-esteem. 

·     Mr Hart is supportive of all staff whether they be in his immediate team or in the larger Quamby team. 

·     Mr Hart has often acted as shift supervisor where his administrative skills assisted in the smooth running of the shift. 

·     Mr Hart leads by example and trains staff in this way. 

·     Mr Hart’s communication skills are sound.  He has written minutes of meetings, submissions for projects and excursions and reports.

·     Mr Hart has attended courses on conflict resolution and negotiation skills and does well negotiating with staff and residents.  He is not confrontational in approaching people and generally secures positive outcomes.

·     Mr Hart has a good understanding of adolescent social development.  He knows of the pressures on young people and is aware of the needs of residents in his care.  He becomes involved in assisting in behavioural changes and is a good role model for the positive development of clients he works with. 

Mr Selby suggested that these were the qualities Mr Duggan was looking for in his work force at Quamby.

19.     Mr Hart’s sworn evidence was that Mr Hart had attended a meeting in Canberra City attended also by Mr Duggan and Mr Hart’s case manager.  Some reference to such a meeting at the proposal stage is at T50 (dated 29 July 1999).  The purpose was to look at Mr Hart returning to work at Quamby.  Mr Hart understood that Mr Duggan wanted him back at Quamby.  Outside his office, said Mr Hart, Mr Duggan had said he thought Mr Hart was very good at his job and that Quamby needed people like Mr Hart.  He was said to have put to Mr Hart that he wanted to prove to Mr Hart that the place had changed.  Mr Duggan in his evidence described the meeting as emotional.  He said that he had been keen to see Mr Hart return to work so that Mr Hart could get over his Quamby experience.  He said that he did not offer Mr Hart a job at Quamby and did not suggest Mr Hart could do a job at Quamby at ASO 3 or ASO 4 level.

20.     In his evidence Mr Hart said that the old ASO 3 had effectively been upgraded to the new ASO 4.  He based this on a comparison of the job descriptions in the official papers.  He said he was unaware of the shift arrangements in 1999 and since.  He said he did not know what “case management” involved in the reformed Quamby.  Mr Hart’s higher duties record at Quamby had involved him working as an old ASO 4 for six days in total, and as an old ASO 3 for extended periods from 1996 until 1998 (ex A1). 

21.     Mr Hart agreed he had received a letter dated 25 May 1999 advising of the restructuring at Quamby and telling him of the need for him to apply for appointment to a new and vacant position within the structure or to consider redeployment at ASO 2 level elsewhere within DECS (ex R6).  Mr Hart said he did not apply for a Quamby job when the restructured jobs were advertised in May 1999.  He said he had once earlier applied unsuccessfully for promotion to an old ASO 3 position.  Since leaving Quamby Mr Hart had not applied for promotion.  He had been certified fit for all work except in correctional institutions. 

22.     Mr Duggan in his evidence described the success of the reforms at Quamby.  Assaults had reduced to less than one a year.  There had been 18 in the first three months of 1999.  There was reduced self-harm.  He told the tribunal that, following the jobs spill at Quamby, three or four of the previous Quamby staff had succeeded in obtaining jobs in the new structure. 

23.     Mr Duggan said that under the previous model most of the more experienced staff were located in the control tower.  The least experienced staff dealt directly with inmates.  As reorganised Quamby had adopted a unit based model.  Each unit has a manager who is one of the more experienced staff.  The manager would work with six to 12 young people.  Under the previous structure the ASO 3 and 4 staff were in the control tower.  Now they are in the unit with detailed case management responsibilities. 

24.     Mr Duggan said that ASO 3s had not been required to do much overtime since the reorganisation.  Casuals were used to fill requirements.  Shift penalties had been built into the salary structure.

25.     In final submissions Mr Selby made clear that Mr Hart’s case was not that he would have been promoted if on deck at Quamby in 1999.  It was that a comparison of the documentation relating to the new ASO 4 positions at Quamby with that for the old ASO 3 positions disclosed a similar skills requirement.  Linked to this was the proposition that Mr Hart had legitimate expectations of being treated as an ASO 3 in the unreformed Quamby.  It is necessary to consider these documents. 

26.     Exhibit R2 provided the duty statement and selection criteria for the current ASO 3 positions at Quamby.  The duties were:

“1.       Through positive relationships with young people ensure care, supervision and safe custody with the Detention Centre.

2.        As a key worker, engage residents in case plans relating to individual needs, goals and strategies; liaise with families, carers, government and community agencies involved in the case management process.

3.        As a member of a team implement effective behaviour management strategies to residents in order to develop a capacity to change attitudes and behaviour.

4.        Ensure residents participate in a range of program activities relating to rehabilitation and positive re-integration of young offenders into the community.

5.        Provide and maintain necessary records as required in a variety of formats and media (including written and oral formats).

6.        Attend and participate in a range of meetings relating to residents and the operation of the Centre (including shift briefings and de-briefings, staff meetings, staff training and development programs and staff performance and appraisal).”

The selection criteria are:

“1.       Ability to work, motivate, support, and effectively communicate with young people including those with special needs in a custodial environment.

2.        Ability to take on the role of key worker for residents and implementing individual case management plans.

3.        Possess a sound understanding and experience in issues relating to adolescent development.

4.        Ability to work effectively in stressful working conditions both alone and as a member of a team, to set priorities and to adapt to changing circumstances.

5.        Good negotiation, liaison and advocacy skills and the ability to prepare reports.

6.        Understanding and commitment to customer service, principles of workplace diversity, participative work practices and occupational health and safety.

7. A knowledge of youth justice philosophy and policies in the ACT.”

27.     For current ASO 4 positions the duties are (ex A1/12):

“1.       Assist in the day-to-day management of the unit and provide direction and supervision of staff, clients and activities during the shift.

2.        Ensure that a professional level of care, supervision and support of residents is provided.

3.        Assist in the coordination, development, oversight and evaluation of individual case plans; liaise with families, carers, government and community agencies in the case management process; monitor youth workers in the role as key workers.

4.        Provide leadership, support and problem solving strategies in relation to difficult or complex issues; ensure consistency in implementation of effective behaviour management strategies to residents in order to develop a capacity to change attitudes and behaviour.

5.        Ensure that residents participate in a range of program activities relating to education and competency based training.

6.        Provide and ensure the maintenance of necessary records as required in a variety of formats and media (including written and oral formats).

7.        Participate in a range of meetings relating to residents and the operation of the Centre (including shift briefings and de-briefings, staff meetings, staff training and development programs and staff performance and appraisal).”

The selection criteria are:

“1.       Ability to provide leadership and support to youth workers to ensure safe care and positive, consistent relationships with residents in a secure setting.

2.        Experience and ability to develop effective strategies in working with adolescents who are at risk or exhibiting challenging behaviours.

3.        Ability to develop, implement and monitor individual case management plans.

4.        Ability to supervise and ensure participation of residents in educational, vocational and social activities.

5.        Ability to work effectively in stressful working conditions and to develop and build a team approach.

6.        Good negotiation, liaison and advocacy skills and the ability to prepare reports.

7.        A demonstrated understanding of, and commitment to, customer service, principles of workplace diversity, participative work practices and occupational health and safety."

28.     Turning to the old ASO 3 level position..  The duty statement for that was (ex R3):

“Under direction and in accordance with the principles of practices of equal employment opportunity, occupational health & safety, industrial democracy and access & equity

1.        Ensure the safe care and custody and personal development of the residents in the Centre.

2.        Provide assistance, support and advice to youth workers and residents in relation to difficult or complex matters that arise in the Centre.

3.        Assist the residential manager in the running, development and supervision of staff.

4.        Establish and maintain co-operative relationships with other community-based organisations in order to fully utilise all available resources for the Centre's program based and staff training and development needs.

5.        Assist in the development and implementation of residents’ individual case plans at the Quamby Youth Detention Centre.

6.        Develop, implement and evaluate programs and practices for the Centre aimed at meeting the needs of the residents.

7.        Provide administrative support to the residential manager of the Quamby Youth Detention Centre.”

The selection criteria were:

“1.       A good appreciation and knowledge of social welfare issues and juvenile justice philosophy and practices.

2.        As a member of a team and/or independently, possess the ability to achieve objectives in relation to programs and management of the Quamby Youth Detention Centre.

3.        Ability to supervise, develop and train staff.

4.        Sound oral and written skills including negotiation and liaison skills.

5.        An understanding of adolescent social development.

6.        A knowledge and understanding of equal employment opportunity, industrial democracy, occupational health & safety and access and equity principles and practices.”

29. The tribunal has already noted that Mr Hart acted regularly as an ASO 3 when working at Quamby. According to the applicant’s statement of facts and contentions (ex A1) Mr Hart acted as an ASO 3 for 194 days between 28 July 1997 and 12 May 1998 (when he finished at Quamby). It is unsurprising that Comcare was prepared to assess Mr Hart’s NWE on the basis that he should be regarded as an ASO 3, although the position he owned was only classified as ASO 2. It may be that Mr Hart was acting as ASO 3 in the fortnight before he became incapacitated for work but, if he was not, then Comcare’s decision was an application of the principle in s 8(5) of the Act. Under s 8(5), if the normal relevant fortnight period is too short to fairly represent Mr Hart’s weekly earnings, a decision-maker can calculate NWE in relation to such other period as is considered reasonable for the purpose of arriving at an amount that would fairly represent the weekly rate of payment. Comcare was not, as we know, prepared to go to the next step and regard the old ASO 3 as having been transformed into the new ASO 4 for employees at Quamby. Should it have been?

30.     The appropriate comparison is between the paperwork for the old ASO 3 and the new ASO 4.  A reading of the description of the new ASO 4 specifications indicates the following table, which in turn suggests considerable overlap:

OLD ASO 3 SPECIFICATION

ASO 4 SPECIFICATION

(a) The ASO 3 was to ensure the safety of residents (duty 1).

(b) The ASO 3 was to ensure the personal development of residents (duty 1 and criterion 5).

(b) The job involves ensuring that a professional level of care, supervision and support of residents is provided.  It does not necessarily require that the ASO 4 does the providing (duty 2).

(c) The ASO 3 was to provide assistance, support and advice to youth workers (duty 2 and criterion 5).

(e) The ASO 4 monitors the work of youth workers (duty 3 and criterion 1).

*(d) The ASO 3 was to assist in management and supervision (duty 3 and criteria 2 and 3).

*(a) The job involves supervision and some management (duty 1).

(e) The ASO 3 was responsible for co-operative relationships with other community based organisations (duty 4 and criterion 4).

(d) In relation to case management the ASO 4 liases with a number of people who are affected by or who can assist the success of case management (duty 3 and criterion 6).

(f) The ASO 3 assisted in developing and implementing individual case management plans (duty 5 and criteria 4 and 5).

(c) In relation to individual case plans the ASO 4 assists in the administration of these but does not seem to draft them or have the final word on their achievements (duty 3 and criterion 3).

(i) The ASO 4 contributes to management and case meetings (duty 7).

(g) The ASO 3 developed, implemented and evaluated programs and practices to meet the needs of residents (duty 6 and criterion 2).

(g) The ASO 4 ensures participation of residents in education and training (duty 5 and criterion 4).

(h) The ASO 3 provided administrative support for the residential manager (duty 7 and criterion 4).

(h) The ASO 4 is responsible for necessary records, presumably relating to residents (duty 6 and criterion 6).

(i) The ASO 3 was to have a good appreciation of social welfare issues and juvenile justice theory and practice (criterion 1).

N/a

*N/a

*(f) The ASO 4 is called on to use imaginative but firmly based strategies in relation to behavioural management of residents (duty 4 and criteria 2 and 5).

31.     This comparison did not suggest that the old ASO 3 was a substantially less onerous position than the new ASO 4.  However, there are perceptible differences.  It is fair to say that the new ASO 4 emphasises the need for the ASO 4 to participate in management to an extent that the ASO 3 specifications did not.  I have asterisked the comparative specifications in the table above that bring this out.  In ASO 4 specification (f), for example, the officer is to use imaginative but firmly based strategies in relation to the behavioural management of residents.  There was no equivalent in the ASO 3 specifications. 

32.     On the other hand, the ASO 3 was required to have a good appreciation of social welfare issues, juvenile justice theory and practice whereas there is no equivalent requirement on the current ASO 4.  This suggests a need for a certain sophistication on the part of the former ASO 3 in doing the job.  There may be some consistency with Mr Duggan’s evidence in this in that Mr Duggan had explained that the more senior staff in the past had operated in the control room remote from the residents.  Now the more senior staff are in direct contact with the residents.  To that extent the old ASO 3 and new ASO 4 positions are more similar than they might be had the new ASO 4s continued to work away from residents.

33.     For completeness, the same comparison should be done as between the old and new ASO 3 positions:

OLD ASO 3 SPECIFICATION

NEW ASO 3 SPECIFICATION

(a) The old ASO 3 was to ensure the safety of residents (duty 1).

(b) The old ASO 3 was to ensure the personal development of residents (duty 1 and criterion 5).

(a) The new ASO 3 is to ensure the care, supervision and safe custody of residents (duty 1).

(f) The new ASO 3 is to ensure residents participate in a range of program activities relating to rehabilitation and reintegration into the community (duty 4).

(c) The old ASO 3 was to provide assistance, support and advice to youth workers (duty 2 and criterion 5).

N/a.

(d) The old ASO 3 was to assist in management and supervision (duty 3 and criteria 2 and 3).

(e) The new ASO 3 implements behaviour management strategies (duty 3 and criterion 1).

(h) The new ASO 3 attends management and case management meetings (duty 6).

(j) The new ASO 3 sets priorities and adapts to changing circumstances (criterion 4).

(k) The new ASO 3 is committed to customer service (criterion 6).

(e) The old ASO 3 was responsible for co-operative relationships with other community based organisations (duty 4 and criterion 4).

(d) The new ASO liaises with families, carers, government and community agencies in case management (duty 3, criterion 5).

(f) The old ASO 3 assisted in developing and implementing individual case management plans (duty 5 and criteria 4 and 5).

(c) The new ASO 3 engages residents in case plans relating to individual needs (duty 2 and criteria 1 and 2).

(g) The old ASO 3 developed, implemented and evaluated programs and practices to meet the needs of residents (duty 6 and criterion 2).

(f) The new ASO 3 is to ensure residents participate in a range of program activities relating to rehabilitation and reintegration into the community (duty 4).

(h) The old ASO 3 provided administrative support for the residential manager (duty 7 and criterion 4).

(g) The new ASO 3 engages in record keeping (duty 5 and criterion 5).

(i) The old ASO 3 was to have a good appreciation of social welfare issues and juvenile justice theory and practice (criterion 1).

(l) The new ASO 3 is to have a knowledge of youth justice philosophy and policies in the ACT (criterion 7).

N/a.

(b) The new ASO 3 has positive relationships with young people (duty 1 and criteria 1 and 3).

N/a.

(i) The new ASO 3 is able to work in stressful working conditions (criterion 4).

34.     This comparison between the old and new ASO 3 positions suggested to me that less is expected of the new ASO 3 than was the case with the old ASO 3.  The new ASO 3 has no obvious responsibility for youth workers whereas the old ASO 3 and new ASO 4 do.  The old ASO 3 had a general responsibility to assist in management whereas the new ASO 3 has a series of specific contributions, albeit important contributions, to make.  The old ASO 3 appeared to have a wider set of responsibilities in assisting the residential manager with administrative support. 

35.     The representatives referred the tribunal to a plethora of decided cases.  Of these there were only a few that were instructive in a scenario such as this.  Deputy President Forgie’s decision in Re Thompson and Comcare (2002) 69 ALD 762 (Re Thompson 2002) was helpful in several respects.  In that case Mr Thompson had been a carpenter employed by the Commonwealth Department of Housing and Construction.  He was partially incapacitated as a result of a 1984 work injury and so was on incapacity payments to make up salary.  He was classified as a General Service Officer (“GSO”) 6.  He was transferred to the Department of Administrative Services (“DAS”) in 1990 in a division called Asset Services.  DAS was later absorbed into the Department of Finance and Administration (“DOFA”).  He was employed until retrenched with the abolition of Asset Services in 1997 when he was paid at the fourth and highest increment level within the GSO 6 grade.  A new company, Assets Services Pty Ltd, took on the former work of Asset Services in an outsourcing arrangement.  Asset Services Pty Ltd employed many former employees of Asset Services.  Mr Thompson sought such employment but was rejected, he thought, because of his incapacity.  DOFA employees received a 3% salary increase in December 1997.  Employees of Asset Services Pty Ltd received wage increases in 1998 and 1999. 

36. The learned Deputy President had to ascertain the appropriate class of employees into which Mr Thompson fell and the salary implications flowing from that as they affected his NWE calculations. She found that the class of employees of which Mr Thompson was a member at the time of his injury was carpenters employed by the Commonwealth in a range of departments and agencies named in a determination by the Public Service Arbitrator, and their successors. She accepted that most of the work of a carpenter was no longer performed by employees in Commonwealth employment but was contracted out to private enterprise. She did not accept that this required finding a “new” class. Section 8(9) of the Act was said not to permit a change of class. The task was said to be to identify the class and then determine whether there has been a percentage variation in the minimum amount payable in respect of employees in that class. “So long as there are employees who still come within the class, it does not matter that Mr Thompson’s particular position in the public service no longer exists or that there are no longer standard salary scales for members of the public service”.

37. As Deputy President Forgie said at page 772, s 8(9) refers to a more general standard of percentage change in remuneration and not by reference to particular levels of remuneration. Section 8(10)(b) of the Act “brings it back to the particular position occupied by [the employee]. It requires an assumption to be made that [the employee] would have continued to be employed by the Commonwealth in the employment in which he was engaged at the date of his [or her] injuries and a further assumption to be made that he [or she] would have continued in the employment in which he [or she] was engaged at the date his [or her] employment ceased. There must then be a calculation of what he [or she] would have earned in those two situations. … It limits the amount calculated as the normal weekly earnings so that the injured employee cannot be better off financially as a result of being incapacitated”.

38.     In Re Thompson 2002 (above) the class had shrunk but still existed in the Joint House and Defence Departments. The learned Deputy President required that regard be had to the percentage changes in their salaries pursuant to s 8(9) of the Act. She then said, “If there are no longer any members of the class of employees, then s 8(9) effectively has no operation for there can be no percentage change” (page 773).

39. In the case before me I am spared many of the problems Deputy President Forgie faced. There are still government employees at Quamby and more broadly in the ACT DECS doing work similar to Mr Hart’s work as at his date of injury. It is possible to track changes in the salary position of those in that class.

40.     A close analogy to Mr Hart’s situation applied in Re O’Shea and Comcare (1998) 27 AAR 394. Mr O’Shea was employed by the Commonwealth Department of Transport as a steward on ships when he suffered a back injury in the course of his employment in 1978. He was unfit for and ceased work in 1980. He soon found other Commonwealth clerical employment. He worked until 1992 when he was involuntarily retrenched by the Civil Aviation Authority.

41.     Since 11 January 1980 he had received weekly incapacity compensation payments for loss of income based on salary, wages or pay applicable to his position of steward on the MV Cape Pillar at the time of his injury.  In 1993 an award applying to the Cape Class Vessels ceased and was replaced by an enterprise agreement (“the EA”).  Under the EA sea-going employees were offered the opportunity to translate into a new classification structure.  Old designations such as “steward” were abolished. 

42.     All Cape Class vessel employees were required to reapply for their positions under the new structure.  The salary for catering attendant under the new structure was significantly higher than that for a steward under the old structure.  All of those who had been stewards in 1993 were either retrenched or gained the better paid new catering attendant positions.  Mr O’Shea sought to have his NWE adjusted in line with the salary paid to catering attendants. 

43.     Senior Member Kiosoglous held that the class of employees of which Mr O’Shea was a member at the time of his injury continued to exist under the new classification of “catering attendant” after 1 August 1993.  He considered the that the conditions of work affecting “stewards” under the 1990 Award and the general run of duties under the Award were comparable to those under the 1993 EA.  The fact that the remuneration available under the EA was significantly higher did not mean that an employee had effectively to be promoted to have access to that remuneration.  Senior Member Kiosoglous held that the catering attendant received an increase in the minimum amount per week payable as a result of the EA.

44.     Senior Member Kiosoglous then decided that Mr O’Shea, if he had not been injured and had continued to work as a seaman would have been successful in obtaining the position of catering attendant at as 1 August 1993.  This was a finding based on consideration of whether Mr O’Shea appeared to satisfy the relevant selection criteria and was stated as a finding on the balance of probabilities. 

45. As a result of these findings Mr O’Shea’s NWE was raised as required in s 8(9) of the Act. In the case before me the main differences from the O’Shea case (above) were that Mr Hart was still working when he queried his NWE and that the restructuring at Quamby did not seem to result in such a generous increase in remuneration as occurred in O’Shea (above).  For this case, however, it appeared from O’Shea (above) that the correct approach was to identify the class of employees of which Mr Hart was a member and to identify where that class now is in the restructured Quamby.  The next step was to identify whether the remuneration to those in that class had risen.  A subsidiary issue was whether treating Mr Hart as a new ASO 4 would be equivalent to giving him a promotion, something not permitted within the NWE provisions (McDonald v Department of Defence [1999] FCA 882).

46.     In Re Thompson and Comcare (2000) 64 ALD 187 Senior Member Burton dealt with a situation where the employee worked in the National Library. He became totally incapacitated in compensable circumstances and ceased work in 1985. He received compensation without incident until the library introduced Australian Workplace Agreements (“AWAs”) for officers at his former level. These allowed for personalised remuneration that could differ as between different officers at the same level. Senior Member Burton decided that Mr Thompson’s NWE was to be assessed by reference to the remuneration accorded the current occupant of his former position. This was consequent on a series of findings. These included that Mr Thompson was likely to have remained in the position if he had not been injured, that he had a legitimate expectation that, had he not been injured, his remuneration would have been based on an AWA, and there being no evidence that Mr Thompson was likely to have commanded a lower salary than the current holder of the position. There was insufficient evidence, and it was not reasonable to suggest, that Mr Thompson was unlikely to have obtained an AWA less favourable than that negotiated by his successors.

47. This case is useful in indicating that a decision-maker needs to be creative in adapting to new industrial situations in trying to apply ss 8 and 9 of the Act.

48.     In Re Davies and Comcare (AAT no 9600, 1 August 1994) Senior Member Lewis considered a case where Mr Davies received compensation from 17 June 1988 because of work-related stress and anxiety.  He was a clerk class 4 in 1988 who acted from time to time as a clerk class 5.  Late in 1988 Mr Davies was seeking to do permanent part-time work.  He offered to reduce to ASO 3 to facilitate this.  He commenced part-time work as ASO 3.  After a year he resumed full-time work and acted consistently as an ASO 4, and sometimes as an ASO 5.  He never worked as ASO 3 between then and when he ceased work on 24 October 1990.  He was paid as ASO 4 until 21 November 1990 and was reduced to ASO 3 from 22 November 1990.

49.     Mr Davies had had the opportunity in 1990 to apply for promotion to the ASO 4 position in which he was acting.  He did not apply.  Four others did and were ranked in an order of merit.  Mr Davies said he did not apply because he could not cope at the time with submitting an application that would be acceptable to the selection panel.  The tribunal found that Mr Davies applied for part-time work on medical grounds related to stress at work.

50.     The tribunal’s summary findings were that Mr Davies reverted to ASO 3 level at least in part because of work-related stress.  It then found that, after a time, he returned to work full-time at ASO 4 level, albeit acting, and at times at ASO 5 level acting.  This was for a year.  The tribunal found, based on evidence from the employer, that an officer acting for such a length of time would not be removed from acting and replaced by officers on an order of merit.  The tribunal reiterated that Mr Davies refrained from applying for the ASO 4 because of work-related stress.  The tribunal found, therefore, that if Mr Davies was not incapacitated for work because of work-related stress he would be paid at ASO 4 level. 

51. In the present case I found as a formal matter that Comcare had acted correctly in accepting liability under s 14 of the Act for Mr Hart’s injury in the workplace.

52.     The first main step in resolving this case was to ascertain the class of employees within which Mr Hart was included at the time of his injury, ie early in 1998.  Deputy President Forgie in Re Thompson 2002 (above) was unimpressed with classes defined by reference to a particular public service grade.  She saw the correct description in that case as “carpenter”..  However, in other cases, including some discussed above, the tribunal and courts have been prepared to identify a class by reference to a public service classification.  This makes sense, of course, where the class would otherwise be excessively generic and would capture employees at a multiplicity of pay levels.  Such an overly generic class might be one described as “clerk” or “clerical assistant”.  In Thompson 2002 (above) the General Service Officer classification included many types of tradesperson.  It was possible to limit it to carpenters in Mr Thompson’s case.  In this case I considered that Mr Hart might be described as a corrections officer, although the duty statements did not do that.  They used the generic ASO description.  The approach the parties adopted here was to use the ASO classifications in argument.  Within this structure, given Mr Hart’s higher duties history, he was regarded by Comcare as in the ASO 3 class at the time of his injury.  I considered this to be the correct decision as at that time.

53.     I then found that that class became the new ASO 4 after the Quamby restructure.  This was based on a comparison between the specifications for holders of the old ASO 3 positions at Quamby and those for the new ASO 3 and ASO 4 positions at Quamby.  For reasons given above the tribunal considered that the old ASO 3 position found its equivalent in the new ASO 4 to a substantial degree and certainly to a greater degree than in the new ASO 3 position.

54.     The tribunal applied an analysis similar to that used by Senior Member Kiosoglous in O’Shea (above) to find, on the balance of probabilities, that had Mr Hart applied for appointment to the ASO 4 positions advertised as part of the restructure process he would have been successful in his application.  I was fortified in this by the reference for Mr Hart in T5 and by Mr Hart’s own sworn evidence regarding his values and historical approach to his work at Quamby.  In my view, in the same way that the restructuring in O’Shea (above) involved access to a higher salary and a merit selection process for employees who were not incapacitated and that was not regarded as a promotions process, the translation here from old ASO 3 to the new ASO 4 did not involve a process properly regarded as a promotion process.  It was more correctly a reclassification for which an officer had to requalify.

55.     I was also impressed in various ways by different aspects of Mr Duggan’s evidence.  I have no doubt that Mr Duggan has been a highly successful leader and manager at Quamby and that Quamby is a better run and more purposeful institution producing superior outcomes.  I have no difficulty accepting that this is because of the decision to improve the service given to residents by placing employees with highest qualifications closer to the residents.  However, I was not convinced by Mr Duggan’s assessment that Mr Hart lacked an appropriate skill set to take his place as one of the new ASO 4 officers at Quamby.  The evidence was that Mr Duggan arrived at Quamby after Mr Hart had ceased regular work there.  There was, in addition, no evidence that Mr Duggan had conducted a thorough assessment of Mr Hart’s claims against the ASO 4 criteria at any time.  Mr Duggan relied on the report at T89 by vocational consultant Rosemary Dupont for his views.  However, I did not see that report as supporting Mr Duggan.  Ms Dupont found that Mr Hart had a reasonable mathematics competency, that he could undertake basic clerical work as long as he was not rushed and that he would require extensive retraining in computing for a clerical position.  She did not think him unable to complete such training.  In any case the Dupont report did not address the particular skills required of a new ASO 4 at Quamby.

56.     I found guidance in Senior Member Lewis’s decision in Davies (above) in considering the implications of Mr Hart not having competed for an ASO 4 position when all positions were spilled.  As in Davies (above), Mr Hart’s mental health at the time of the spill and filling of positions was not such that he was in a position to make a competitive claim based on his qualifications for the job at the time of the selection process. 

57.     For these reasons I considered that the preferable decision in Mr Hart’s case was that his NWE is to be assessed by reference to the remuneration payable to an ASO 4 at Quamby at the date of effect of the reviewable decision and since. 

SCHEDULE 1

58.     The tribunal had before it the following documents which were accepted into evidence and marked as exhibits:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T138) provided by the respondent.

Exhibit A1 – Applicant’s statement of facts and contentions, 13 January 2003.

Exhibit A2 - Statement of applicant, 23 May 2003.

Exhibit A3 – Statement of Mr C Hess, 23 May 2003.

Exhibit A4 – Letter dated 7 April 2003 from Mr F Duggan to Mr A Dillon with attachments and as annotated by the applicant.

Exhibit R1 – Respondent’s statement of facts and contentions, 17 January 2003.

Exhibit R2 – New ASO 3 duty statement and selection criteria at Quamby.

Exhibit R3 – Old ASO 2, new ASO 2, old ASO 3 duty statements and selection criteria at Quamby.

Exhibit R4 – Letter dated 7 April 2003 from Mr F Duggan to Mr A Dillon.

Exhibit R5 – Quamby Youth Detention Centre Safety, Rehabilitation and Safety Commission Award 2003.

Exhibit R6 – Letter dated 25 May 1999 from Mr D Whitton to the applicant.

Exhibit R7 – Quamby ASO 3 recruitment papers, 1996.

Exhibit R8 – Witness statement by Mr F Duggan, undated.

RELEVANT LEGISLATION

59. Relevant provision from the Act are:

Normal weekly earnings

8. (1) 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:

[NH x RP] + A

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) Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:

where:

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

OR is the employee's average hourly overtime rate of pay during that period.

…

(5) Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.

(6) Subject to this section, if the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth or a licensed corporation at the date of the injury is increased, or would have been increased if the employee had continued in that employment, because of:

(a) the attainment by the employee of a particular age;

(b) the completion by the employee of a particular period of service; or

(c) the receipt by the employee of an increase in salary, wages or pay by way of an increment in a range of salary, wages or pay applicable to the employee or to his or her office, position or appointment;

the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased by the same percentage as the percentage by which that minimum amount per week is increased, or would have been increased, as the case may be.

…

(9) The normal weekly earnings of an employee before the date of the employee's injury, as calculated under the preceding subsections, must, while the employee continues to be employed by the Commonwealth or a licensed corporation, be increased or reduced by the relevant percentage.

(9A) For the purposes of subsection (9), relevant percentage means the same percentage as the percentage of increase or reduction in the minimum amount per week payable in respect of employees included in a class of employees of which the employee was a member at the date of the injury as a result of:

(a) the operation of a law of the Commonwealth or of a State or Territory; or

(b) the making, alteration or operation of an award, order, determination or industrial agreement or the doing of any other act or thing, under such a law.

(9B) The normal weekly earnings of an employee before injury, as calculated under subsections (1) to (8) and as increased or reduced under subsection (9) must, if the employee has ceased, or ceases, to be employed by the Commonwealth or a licensed corporation, be further increased, with effect from each indexation date in relation to that cessation, by reference to the percentage of increase (if any) of an index that is prescribed for the purposes of this subsection over the year ending on the 31 December preceding each such indexation date.

(9C) For the purpose of subsection (9B), the indexation date, in relation to a cessation of employment, is:

(a) the 1 July next following:

(i) the date on which this Act receives the Royal Assent; or

(ii) the date of that cessation of employment;

whichever last occurs; and

(b) each subsequent 1 July.

(9D) For the purpose of subsection (9B), the regulations may specify the manner of calculating the further increase referred to in that subsection by reference to the movement of the index that is prescribed for the purposes of that subsection.

(10) If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:

(a) where the employee continues to be employed by the Commonwealth or a licensed corporation—the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or

(b) where the employee has ceased to be employed by the Commonwealth or a licensed corporation—whichever is the greater of the following amounts:

(i) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;

(ii) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;

the amount so calculated shall be reduced by the amount of the excess.

Relevant period

9. (1) For the purposes of calculating the normal weekly earnings of an employee before an injury, a reference in section 8 to the relevant period is, subject to this section, a reference to the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the Commonwealth or a licensed corporation.

(2) Subject to subsection (3), if, during the period referred to in subsection (1), the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth or a licensed corporation was varied as a result of:

(a) the operation of a law of the Commonwealth or of a State or Territory; or

(b) the making, alteration or operation of an award, order, determination or industrial agreement, or the doing of any other act or thing, under such a law;

any part of that period that occurred before the variation, or last variation, took place shall be disregarded for the purposes of calculating the relevant period.

…

(4) If, during any part of the period calculated under the preceding subsections, the employee's earnings were reduced, or the employee did not receive any earnings, because of absence from his or her employment for any reason, that part of that period shall be disregarded for the purposes of calculating the relevant period.

…

Compensation for injuries

14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

…

Compensation for injuries resulting in incapacity

19. (1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

NWE - AE

where:

AE is the greater of the following amounts:

(a)       the amount per week (if any) that the employee is able to earn in suitable employment;

(b)       the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.

NWE is the amount of the employee’s normal weekly earnings.

…

DECISION

60.     The decision under review is set aside.  In its place the tribunal decides that, with effect from 18 October 1999, the applicant’s NWE should be regarded as the NWE of an ASO 4 officer at Quamby Youth Detention Centre.  The decision having been favourable to the applicant, he qualifies for payment of his costs associated with this application in accordance with the provisions in the tribunal’s General Practice Direction.

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella
Senior Member

Signed:         .......................................................................................
  Associate

Date of hearing  5 June 2003
Date of decision  5 November 2003
Counsel for the applicant          Mr Hugh Selby

Solicitor for the applicant          Ken Johnston Bedford & Co, Barristers and Solicitors

Counsel for the respondent      Mr Andrew Dillon
Solicitor for the fespondent      Australian Government Solicitor