Hogno and Comcare
[2004] AATA 255
•12 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 255
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/710
GENERAL ADMINISTRATIVE DIVISION ) Re MARK HOGNO Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms J Cowdroy, Member Date12 March 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review
.....................(Sgd)....................
J Cowdroy
Member
CATCHWORDS
WORKERS’ COMPENSATION - meaning of “normal weekly earnings” - allowances - accrual - leave accrued under specific circumstances - meaning of “average amount of any allowance”
Safety Rehabilitation and Compensation Act 1986 ss 8, 19
Re Davies and Comcare (AAT 9637, 1 August 1994)
Re Sutton and Comcare (AAT 10935 16 May 1996)
Bortolazo v Comcare (1997) 75 FCR 385
Steggles Pty Ltd v Vandenberg (1987) 163 CLR 321
Re Zarb v Comcare (1997 25 AAR 344)
Re Maley v Comcare (AAT 12616A 21 July 1998
Re Whitton v Department of Defence (AAT 12902 21 April 1998)REASONS FOR DECISION
12 March 2004 Ms J Cowdroy, Member 1. This matter was heard on 12 May 2003. It is an application for a review of the decision of Comcare, dated 1 June 2000, in respect of the Applicant’s entitlements arising from an injury compensable under section 19 of the Safety Rehabilitation and Compensation Act 1986 (“the Act”).
2. Mr RWG Hume of counsel appeared for the Applicant and Mr C Clark of counsel appeared for the Respondent. The Tribunal had before it the T-documents lodged, pursuant to section 37 of the Administrative AppealsTribunal Act 1975, and marked as Exhibit 1, as well as the following documentary evidence:
§ Exhibit 2 Statement of Agreed Facts
§ Exhibit 3 Conditions of Service – ADF Operations in East Timor
3. The matter was decided on the basis of the submissions of the parties, the written material, and the relevant case law and legislation.
Issue
4. The issue for the Tribunal to determine is whether certain leave and allowances are to be taken into account in calculating the Applicant’s “normal weekly earnings” for the purposes of section 8 of the Act.
Background
5. The parties have agreed to the following facts, which provide a background to this matter. The Applicant is a 37-year-old soldier, who served in the Australian Regular Army from 14 January 1992 to 24 November 2001. On 20 September 1999, the Applicant was deployed to East Timor on Operation Stabilise, as part of the Special Air Service Regiment (SASR).
6. Whilst in East Timor, on 6 October 1999, the Applicant received a gunshot wound to his neck and he was medically evacuated to Australia on 7 October 1999 for further medical treatment. On 8 November 1999 the Respondent accepted liability for the injury received in East Timor. Had it not been for the injury, the Applicant would have returned to Australia with his unit on 17 December 1999.
7. On 17 November 1999 the Applicant requested compensation for all allowances he would have been entitled to if he had completed his tour of duty in East Timor. Specifically, the Applicant requested the following allowances be paid to him:
§ East Timor Peace Enforcement Allowance
§ Deployment Allowance
§ Tax Free Wages
§ War Service Leave – one and half days per month
§ East Timor Peace Enforcement Allowance and Deployment Allowance for War Service Leave and Basic Recreational Leave
8. On 21 March 2000 the Respondent issued a determination assessing the Applicant’s entitlements due to injury as $875.00 per week, for the period 7 October 1999 to 17 December 1999. This payment included the East Timor Peace Enforcement Allowance and Deployment Allowance (ETPEA) of $125.00 per day, tax-free. However, it did not include payment of accrued war service leave and other leave, nor the allowance attached to such leave, which he would have received if he had served with his unit for the remainder of its tour of duty in East Timor.
9. Information from the Director of Entitlements, Defence Personnel Executive, contained in a letter, dated 12 June 2001, and addressed to the Applicant’s solicitor, states that if the Applicant had completed his service in East Timor he would have been entitled to the following:
§ 3 days war service leave on the basis of 1.5 days for each completed month of service calculated on the basis of $164.25 per day;
§ ETPEA for 10 days at $125.00 per day, comprising:
(i) an allowance for 5 days recreational and field leave;
(ii) an allowance for 3 days war service leave;
(iii) an allowance of 2 days for each 5 days accrued, ie 2 days
10. If the Applicant’s normal weekly earnings include the above leave and allowances, he should have received an additional amount of $137.07 per week.
Submissions
11. The Applicant seeks incorporation into the normal weekly earnings calculation, the monetary equivalent of three days war service leave and 10 days of the allowance peculiar to service in East Timor in relation to leave. It submits that the “but for” test, as formulated in Re Davies and Comcare (AAT 9637, 1 August 1994), requires that such amounts be included when calculating the Applicant’s normal weekly earnings.
12. The Applicant submitted the allowance is of the kind referred to in Re Sutton and Comcare (AAT 10935, 16 May 1996), where Deputy President Breen made reference to an internal document of Comcare entitled “Legislation Information Papers Volume 3”, which states that allowances to be included would generally be those payable for conditions encountered during service, special qualifications, special duties and so on. It was said that the allowance is comparable to penalty rates, shift allowance, field allowance and diving allowance.
13. Further, it was submitted that it was arbitrary to exclude allowances attached to accrued leave if the Respondent accepts that once the Applicant entered operational area in East Timor he became entitled to leave, notwithstanding that such leave is said only to have been accrued after completing one month of service in the locality.
14. The Respondent submitted that the cash payment equivalent to three days war service leave is not a claim pursuant to section 19 of the Act. The gloss on section 8 of the Act, which refers to “the average amount” of any allowance payable, contemplates a quantifiable sum of money as an allowance in the case of a certain event occurring.
15. The Respondent contended that although the Applicant has been credited with five days recreation and field leave for the entire period that his unit served in East Timor, he had not been deemed to have accrued them in the locality. It follows that if such leave is not accrued, then any allowances that flow from that leave are not payable.
16. “The Conditions of Service (COS) – ADF Operations in East Timor”, which refer to their approval at Ministerial level (Exhibit 3 ), states the following:
“Medical Evacuation. When an ADF member is evacuated from East Timor to Australia for medical reasons, DA and ETPEA cease when the member departs the AO. These allowances are only payable when the member is serving inside the AO or when the member is outside the AO on leave that was accrued whilst serving inside the AO”.
Legislation and Findings
17. The central issue for the Tribunal is to determine the correct calculation of the normal weekly earnings for the purposes of section 19 of the Act. Insofar as it is relevant, that section provides:
“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.
19 (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”.
18. The period of incapacity in relation to the Applicant is from 7 October 1999 to 17 December 1999.
19. The term “normal weekly earnings” is defined in section 4 of the Act as meaning “the normal weekly earnings of an employee calculated under s 8”. The relevant part of section 8 of the Act states:
“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”.
20. The cases that were cited in support of the Applicant’s case are indicative of the application of the general principle that workers who are injured during the course of their employment are entitled to be appropriately compensated. They reflects the underlying policy that an injured employee should not be worse off during the period of incapacity as a result of work related injury (see Heerey J in Bortolazo v Comcare (1997) 75 FCR 385 at 388).
21. In respect to the three days war service leave, it is apparent that it can be paid in cash, either while the member is serving or upon discharge. In those circumstances, there can be no sustainable argument that such leave cannot be quantified. It is capable of being quantified if the need arises.
22. An examination of the cases cited in support of the Applicant’s case reveal that normal weekly earnings has been found to encompass paid leisure days, (Steggles Proprietary Ltd v Vandenberg (1987) 163 CLR 321), penalty rates (Re Zarb v Comcare (1997) 25 AAR 344), field allowance (Re Maley v Comcare AAT 12616A 21 July 1998), divers allowance (Re Whitton v Department of Defence AAT 12902 21 April 1998). However, none of those cases assist to any great extent in resolving the present issue, as they are simply examples of the general principle that employees who are unable to work due to work caused injury should be appropriately compensated.
23. The Applicant’s situation is distinguishable from those cases. He has received the daily allowances that he would have received had he served every day of his tour of duty. He has been credited with 20 days basic recreation leave and an amount of field leave. The Tribunal’s task is to consider whether the correct interpretation of the term “average amount of any allowance payable to that employee in each week…” includes leave which would have been accrued under specific circumstances, (as opposed to basic recreational leave), convert that leave to a cash value and calculate it by reference to an “average amount”.. It seems to me that by taking such an approach it would be broadening the meaning of the term “average amount of any allowance” far beyond that which the section contemplates. It is not the case that, when interpreting beneficial legislation, there is a requirement to extend the plain, unambiguous meaning of a term to inordinate limits.
24. Consequently, I find that the three days war service leave, having not been accrued by the Applicant, is not to be included when calculating the Applicant’s normal weekly earnings. It follows that the allowance in relation to those three days war service leave does not form part of average weekly earnings.
25. Further, it is not the case that merely because the Applicant has been credited with recreational leave and field leave for service in the locality, he should automatically receive the allowances attached to that leave. The central issue is that of accrual, which is predicated on the basis that a person serves at least one complete month of service in a particular locality.
26. Consequently, I find that neither the war service leave or the allowances attached to that leave and other specified leave is not an “allowance” which form part of normal weekly earnings, for the purposes of calculating the applicant’s normal weekly earnings.
27. The Tribunal affirms the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed: Nicca Grant
AssociateDate/s of Hearing 12 May 2003
Date of Decision 12 March 2004Counsel for the Applicant Mr R Hume of Counsel
Solicitor for the Applicant D’Arcys
Counsel for the Respondent Mr C Clark of CounselSolicitor for the Respondent Australian Government Solicitor
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