James Menz and Border Express
[2014] AATA 124
[2014] AATA 124
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1890, 2013/2758, 2013/6003
Re
James Menz
APPLICANT
And
Border Express
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date
Date of written reasons
6 March 2014
7 March 2014
Place
Canberra
The Tribunal does not have jurisdiction to hear Matter 2013/1890 and Matter 2013/6003. In relation to Matter 2013/2758 the Tribunal does not have jurisdiction to consider matters involved in the application with the exception of the calculation of ‘Comcare make-up pay’ amount of $72.82 in accordance with section 19(3) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). In relation to that aspect only of the Matter 2013/2758 the Tribunal revokes its decision made on 10 December 2013 under section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and reinstates that issue for consideration by the Tribunal under section 42A(10) of the AAT Act. Otherwise, the applications under the three matters are dismissed.
..............................[sgd]..........................................
RM Creyke, Senior Member
Catchwords
COMPENSATION – whether Tribunal had jurisdiction – oral decision – request for reasons - several matters – whether all aspects of those matters already dealt with by the Tribunal – whether matter dismissed in error – Tribunal reinstated one issue under Administrative Appeals Tribunal Act 1975 (Cth) s 42A(10).
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s28, 42A
Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) s 8, 9, 9A, 19, 62
Secondary Materials
Transport Workers Long Distance Drivers Award 2000 clause 20.6.
REASONS FOR INTERLOCUTORY DECISION
RM Creyke, Senior Member
An interlocutory hearing was held on 10 December 2013 to consider whether the Tribunal had jurisdiction in matters covered by file numbers AAT 2013/1890, 2013/2758, 2013/6003, all applications for review concerning entitlements of Mr James Menz under his accepted compensation claim.
Mr Menz was represented by his wife, Ms Menz, and Border Express was represented by their legal counsel.
The question of the Tribunal’s jurisdiction in these three matters was decided adversely to Mr Menz and the matters were accordingly dismissed.
On 15 January 2014, the Tribunal received an email from Mrs Menz requesting that reasons be provided for that decision. In particular, as Mrs Menz noted in her email and confirmed in a telephone conference on 6 February 2014, that Mr Menz would like an explanation of the reasons for the decisions in the interlocutory hearing, specifically, whether increases in the consumer price index had been taken into account in the calculations of Normal Weekly Earnings (NWE), and whether any extra hours worked by Mr Menz over his Normal Weekly Hours (NWH) were also reflected in the calculations of make-up pay in the payments made after the injury was accepted.
The application for written reasons was out of time in accordance with the time limits in the Administrative Appeals Tribunal Act 1975 (Cth) section 28(1). The Tribunal hereby agrees to extend the time for Mr Menz to seek reasons for the interlocutory decision.
Background
Mr Menz has been employed by Border Express as a line haul, that is, long distance, driver since 1989. He remains an employee. He suffered a work-related shoulder injury on 3 May 2008 described as a ‘left shoulder injury (tear of supraspinatus and infraspinatus tendon)’ which incapacitated him from working as a driver. He returned to work on a graduated return program in the second half of 2008, but, except for a couple of days’ work in December 2010, effectively ceased working on 13 August 2010.
Border Express accepted liability for the shoulder injury on 9 May 2008. On 2 December 2010, Mr Menz claimed compensation for a secondary psychological condition described as ‘depression’ arising as a consequence of the injury to his shoulder. Liability was accepted on 10 December 2010 for ‘adjustment disorder with depressed and anxious mood’, secondary to the initial claim.
Subsequently Mr Menz has sought review of several decisions concerning the amount of his incapacity payments under section 19 of the Act. In a consent decision approved by the Tribunal on 25 February 2010, the normal working hours’ component of the figures taken into account in that calculation was determined to be 58.16 hours per week. The correctness of the normal weekly earnings component used in the calculation, and in particular whether it took account of rostered days off, and the relevant period for the purposes of the calculation was decided by the Tribunal on 17 May 2013. Those matters have been settled.
The three matters before the Tribunal at its interlocutory hearing on 10 December 2013 were:
·Matter 2013/6003 which related to a decision by Border Express dated 4 November 2013 to reconsider and recalculate Mr Menz’s normal weekly earnings (NWE) according to the terms of section 8 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). The reconsideration decision took into account increases in the relevant award rate applicable to Mr Menz as required by section 8(9) and (9A) of the Act;
·Matter 2013/1890 which concerned a decision of 13 March 2013 by Border Express, to revoke its decision as to the amount of Mr Menz’s NWE and to substitute a decision as to the amount of NWE so as to include amounts representing the dangerous goods allowance payable under the relevant award, namely, the Transport Workers Long Distance Drivers Award 2000 clause 20.6. The decision also affirmed that the ‘relevant period’ for the purposes of section 8 of the Act was the 12 week period prior to the injury; and
·Matter 2013/2758 which related to a decision of Border Express to revoke its decision made on 1 July 2009 and take into account the figure for normal weekly hours applicable to Mr Menz as decided by the Tribunal, for the purposes of calculating his NWE under section 19 of the Act. Border Express recalculated Mr Menz’s incapacity payments for the period 12 July 2009 to 25 March 2010, in accordance with section 19(3) of the Act.
Legislation
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 19 contains the methodology for calculating the amount of incapacity payments; section 8 concerns the methodology for calculating the normal weekly earnings; and section 9 covers the relevant period for the calculation.
Issues
The sole issue was whether the Tribunal had jurisdiction to consider the applications in Matters 2013/6003; 2013/1890; and 2013/2758.
Consideration
Matter 2013/6003
On 4 November 2013 Border Express in its reconsideration decision affirmed its decisions relating to the NWE of Mr Menz dated 16 July 2009, 13 July 2010, 17 April 2012, 24 April 2012, 26 July 2012 and 15 July 2013. These decisions were to adjust NWE to take account of increases in the award base rate as follows:
·16 July 2009: to $1,596.21 for the period from 29 September 2008.
·13 July 2010: to $1,619.11 for the period from 5 July 2010.
·17 April 2012: to $1,642.31for the period from 4 July 2011.
·24 April 2012: to $1,619.11 for the period from 27 March 2011 to 3 July 2011.
·26 July 2012: to $1,662.81 for the period from 4 July 2012.
·15 July 2013: to $1,681.71 for the period from 1 July 2013.
In its explanation for the decisions, Border Express noted that the NWE increases had been made according to award rate increases to the base rate applicable to line haul drivers for weeks when Mr Menz was not in receipt of a trip rate paid under the cents per kilometre method (38 hours week).
As Mr Menz remains employed by Border Express, the relevant provisions are sections 8(9) and 8(9A) of the Act. The terms of section 8(9), and (9A) of the Act require that NWE is to be increased or reduced by the ‘relevant percentage’ of any increase in the minimum rate per week payable to an employee in the same class of employees as Mr Menz.
Mr Menz objected to the CPI indexation amount on the basis that ‘Border Express has applied the indexation to a portion of the NWE and not the full amount’. That appears to be a misunderstanding on his part since the application of a CPI indexation amount arises under section 8(9B) of the Act and only applies in the case of an employee who ‘has ceased, or ceases’ to be employed by a licensee.[1] Mr Menz has not ceased to be employed by Border Express. Therefore, the indexation amount is not relevant to any incapacity payments which are made to him under sections 8 and 19 of the Act.
[1] Re Chun v Comcare [2012] AATA 471 at [18].
The Tribunal notes that section 8(9A) specifically states that the relevant percentage increase or decrease ‘means the same percentage as the percentage of increase or reduction in the minimum amount per week payable’ (emphasis added) to line haul drivers. Section 8(9A) refers to increases in remuneration payable to a class of continuing employees where those increases come about because of the operation of law or changes made in accordance with an industrial determination or agreement.[2] The relevant increases in this matter were made under the award applying to Mr Menz. The Tribunal has taken the reference to Mr Menz’s objection to an amount being ‘a portion of the NWE’ to refer to the base level amount in the award. The Tribunal understands that Mr Menz objection is because he considers that the increase should be applied to the whole amount of the NWE.
[2] Id at [19].
The Tribunal notes that fixing the base level amount per hour for line haul drivers[3] payable to a ‘class of employees’ is a matter for the Fair Work Ombudsman. The Tribunal has no jurisdiction over that calculation. Assuming, as the Tribunal has done, that the complaint that the percentage increase or reduction had been applied only to ‘a portion of NWE’, was a complaint that the figure taken into account was the base level or minimum hourly rate of pay per hour, that is a correct basis for the calculation under the Act. Section 8(9A) of the Act states that the percentage increase must be applied to the minimum or base level amount under the award. What is the figure for the base amount is not something that the Tribunal decides. That leaves no scope accordingly for the Tribunal to review this complaint.
[3] Re Blade and Comcare (2001) 64 ALD 471 at [50].
The period chosen to calculate NWE was averaged over the 12 weeks prior to Mr Menz’s date of injury.[4] The use of the period of 12 weeks prior to the date of injury was approved by the Tribunal in its decision of 17 May 2013 and may not again be reviewed by the Tribunal. The Tribunal finds that it has no jurisdiction to review these matters assuming its interpretation of ‘a portion of NWE’ is correct.
[4] Re Frew and Comcare (2011) 126 ALD 375 at [44].
Matter 2013/1890
On 11 June 2013, Border Express made a reconsideration decision. That decision affirmed an own motion decision Border Express made on 13 March 2013 in its review of the decision by Border Express dated 26 June 2009 concerning the amount of incapacity payment for Mr Menz. The own motion decision decided:
·To affirm its decision that the ‘relevant period’ for the purposes of calculating normal weekly earnings was 12 weeks prior to the date of injury (section 8(5) of the Act);
·To revoke its determination of normal weekly earnings under section 8 of the Act of $1,573.41 per week; and
·To substitute a decision that Mr Menz’s NWE as at 3 May 2008 was $1,633.00, being the sum of $1,573.41 per week and $26.92 per week representing the dangerous goods allowance payable under clause 20.6 of the Transport Workers Long Distance Drivers Award 2000.
The reconsideration by Border Express took into account the amount of $1,573.41 which was the calculation of NWE, and added to that figure a weekly amount for the dangerous goods allowance under the Award which previously had not been included in the NWE. The Award states in clause 20.6.1. that:
… a driver engaged in the transport of bulk dangerous goods or carting explosives in conformity with the Australian explosives code by public road shall receive an allowance of … per day.
The reconsideration followed a decision by the Fair Work Ombudsman, finalised on 17 August 2010, that Mr Menz had been entitled to dangerous goods allowance under the Award since 1 May 2004. Border Express calculated that the total amount Mr Menz had been underpaid was $4,834.83. This was the amount he should have received if he had been awarded the dangerous goods allowance for the period 1 May 2004 until 30 September 2008.
Border Express in its letter dated 19 July 2010 said that ‘The outstanding amount of $4,834.83 will be paid to Mr Menz upon confirmation that the revisited calculations are acceptable by the Fair Work Ombudsman’. A letter from Border Express, dated 27 August 2010, noted that the amount was paid to Mr Menz’s account on that day. The Tribunal has implied from that communication that the Fair Work Ombudsman had confirmed and found the revisited calculations to be acceptable. Although there was some mention at the hearing of a failure to pay the dangerous goods allowance, that issue was not the focus of the Tribunal’s reconsideration.
The first element of the reconsideration decision which was under review by the Tribunal was the decision that the ‘relevant period’ for the purposes of calculating normal weekly earnings was 12 weeks prior to the date of injury.That was not queried by Mr Menz and was confirmed by the Tribunal in its decision of 17 May 2013 and the Tribunal has no jurisdiction to revisit that decision.
The other two elements of the reconsideration decision were to revoke its decision regarding the amount of NWE and to reconsider and recalculate the amount of the NWE taking into account the $26.92 which the Fair Work Ombudsman had decided was an allowance to which Mr Menz was entitled. No issue was raised in relation to the average amount for the dangerous goods allowance, being $26.92 per week for the twelve week period.
In the Statement of Facts, Issues and Contentions provided by Border Express, dated 12 September 2013, Border Express noted that Mr Menz had disputed the recalculations of NWE at $1600.33 as at 3 May 2008 as an understatement because it failed to take account of the actual number of hours he worked. He asserted that NWE should be $1659.42 or $1718.21. Border Express contended that the calculations for the twelve week period had been decided in the Tribunal’s decision of 17 May 2013 and were no longer reviewable. The Tribunal agrees with this contention. The amount of ‘Comcare make-up pay’ for the 12 week period used in the assessment of the amount of the NWE was considered by the Tribunal in its decision of 17 May 2013 and cannot be considered again by the Tribunal.
Another issue raised in an email by Ms Menz after the interlocutory hearing was the period for which the dangerous goods allowance should be paid. The Fair Work Ombudsman letter of 17 August 2010 specifically referred to the period for payment of dangerous goods allowance as ending on 30 September 2008. The length of the period for payment of the allowance was decided by the Fair Work Ombudsman in its decision and no issue was raised at the interlocutory hearing about this finding.
In her email of 15 January 2014, Ms Menz noted that on 14 January 2014 Mr Menz had been notified that Border Express had only paid the dangerous goods allowance ‘until 29 August 2008’, a date corrected by Ms Menz in the telephone conference on 6 February 2014, to 28 September 2008. That date appears to correspond to the date in the decision by the Fair Work Ombudsman that allowance was payable up to 30 September 2008.
It is not clear from Ms Menz’s email whether she was contending that no amount for dangerous goods allowance had been paid, or whether she was saying that no amount for dangerous goods was payable after 28/30 September 2008. The first contention, on the evidence before the Tribunal on 10 December 2013, was not supported. The information from the letter from Border Express to Mr Menz of 27 August 2010 was that $4,834.83 had been deposited in Mr Menz’s account that day.
In any event, the information referred to by Ms Menz in her email as to non-payment was not advised to Mr Menz until 14 January 2014. Accordingly it was not information before the Tribunal at the interlocutory hearing on 10 December 2013 and cannot be considered by the Tribunal.
In summary, in this matter the Tribunal in its decision of 17 May 2013 approved the relevant period for the calculation of the rate of payment for the amount of compensation for incapacity payments under section 19 of the Act for the period prior to the date of injury. That amount also included the amount for make-up pay during the twelve weeks. The decision was that the period which was most fair to Mr Menz was the 12 weeks prior to the date of injury. That is a matter that has already been decided by the Tribunal and the Tribunal considers there is no fundamental (or jurisdictional) error[5] in that decision, nor is there any other reason for that decision to be revisited. The Tribunal has no jurisdiction to revisit that period.
[5] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.
The decision by Border Express to revoke its calculation of normal weekly earnings under section 8 of the Act and to increase the amount payable to take account of the dangerous goods allowance payable under clause 20.6 of the Transport Workers Long Distance Drivers Award 2000 for the period 1 May 2004 to 30 September 2008 followed a decision relating to the award made by the Fair Work Ombudsman. Entitlement to that amount is a matter for the Fair Work Ombudsman. Although the Act requires that the amount then be included in the NWE, the Tribunal heard no argument that the addition of the amount was not correct. Accordingly, it is not within the Tribunal’s jurisdiction to re-examine this aspect of the decision.
The information as to whether the amount representing the back payment of the dangerous goods allowance had actually been paid to Mr Menz was not before the Tribunal on 10 December 2013 since it was information received by Mr Menz on 14 January 2014. Therefore there are no new issues, or issues which were properly before the Tribunal, in the application for review of this decision and accordingly the Tribunal has no jurisdiction over the matters in this application for review in Matter 2013/1890.
Matter 2013/2758
The reconsideration decision in Matter 2013/2758 was made on 11 August 2009 based on a figure for normal weekly hours (NWH) of 69.44 hours per week. Subsequently, as a result of the Tribunal decision of 25 February 2010, the NWH was calculated as 58.16 hours per week. No challenge has been made to that Tribunal decision.
Border Express, following the decision of 25 February 2010, recalculated Mr Menz’s entitlements under section 19(3) in accordance with the revised figure for NWH. The decision on reconsideration was that Mr Menz was entitled to ‘make-up pay’ of $72.82 in a period between 19 July 2009 to 26 March 2010. That decision was made on 1 April 2010.
The Tribunal, at the time of the interlocutory hearing accepted that the decision of 1 April 2010 was a ‘primary decision’ as stated by Border Express in its section 37 documents index for the Tribunal. The Tribunal assumed accordingly that it had no jurisdiction in the matter since the matter had not been reconsidered. On further examination since the interlocutory hearing it appears that the decision was a reconsideration decision of Border Express’s own motion under section 62 of the Act. Accordingly Matter 2013/2758 is reviewable by the Tribunal on that ground and was dismissed under section 42A(4) of the AAT Act in error. However, that does not mean that the Tribunal has jurisdiction to consider all aspects of the decision in Matter 2013/2758.
Mr Menz has disputed the amount of ‘Comcare make-up pay’ of $72.82 which resulted from the recalculation. Comcare disagreed with Mr Menz’s contention concerning the Comcare make-up pay amount of $72.82. It did so on two grounds: that the calculation had been in accordance with the terms of the relevant provision, section 19(3) of the Act, and Mr Menz may simply not have understood how that calculation was done; and that the amount was not queried in the File Review conducted by Comcare, and recorded in its report of 11 August 2010.
Some support for the contention about misunderstanding by Mr Menz was provided by Ms Menz who had complained in an undated submission that although provided with a spreadsheet Border Express ‘did not at any time explain to him [Mr Menz] or myself what and how they derived those figures’.
The Tribunal notes that the File Review specifically referred to the recalculation of the amount of make-up pay following the Tribunal’s finding that Mr Menz’s normal weekly hours was 58.16 hours. So it can be assumed that Comcare considered the recalculation as part of its File Review and approved the recalculations. Nonetheless, Comcare in its conducting of a File Review is not a decision-maker. Only Border Express, or on review the Tribunal, is the decision-maker. The complaint that Border Express has not provided sufficient information about how it undertook the calculations to satisfy Mr Menz of the correctness of the calculations is one which needs to be addressed by the Tribunal following further information from Border Express detailing the method of calculation. An order will be made accordingly.
Mr Menz had also stated in an argument in his undated submission in support of his contention that the amount of the Comcare make-up pay must be incorrect, that ‘NWH should equal NWE’. It is not clear what is meant by this statement. It appears to misunderstand the more complex calculations which are involved in the formula in section 19(3) of the Act.
Border Express interpreted the statement as an argument that ‘normal weekly earnings as determined under s 8 of the SRC Act should be divided by normal weekly hours (in this case 58.16 hours) to provide an hourly rate of pay payable to the applicant while working in suitable employment’. The response of Border Express to this argument was that ‘entitlement to remuneration for employment is an industrial matter regulated by the Award and outside of the scope of the SRC Act’. In other words, the hourly rate of pay of line haul drivers is a matter for the Fair Work Ombudsman. If the interpretation of Border Express was an appropriate response to Mr Menz’s submission, the Tribunal agrees with its response. The Tribunal has no jurisdiction to decide hourly rates of pay.
Nonetheless, it was not satisfied that that is what Mr Menz intended by this statement. Accordingly the Tribunal undertook a further telephone direction hearing on 5 March 2014 and in that hearing, Ms Menz confirmed that it was the basis of the calculation made to reach the figure of $72.82 in accordance with section 19(3) to which objection was being made. The Tribunal does have jurisdiction over this issue.
The Tribunal concedes that the calculations undertaken in accordance with section 19(3) are complex. Some of the difficulties in the calculation were referred to by Comcare in its File Review when it noted:
There is clear difficulty in applying the award calculation for cents per kilometre to the hours based formula set out in section 8 of the SRC Act for NWE. BEx appear to be doing their best to accurately reflect Mr Menz’ earnings within the constraints of the SRC Act. Mr Menz has moved from pre-injury pay per kilometres driven to an hours based suitable duties role post injury. He estimated his own hours at 70 hours per week pre-injury for the purpose of section 8 of the SRC Act. His NWH has subsequently been reduced to 58.16 as part of the Tribunal resolution, and he is working these hours for the most part.
Mr Menz’s complaints appear to be based on the 70 hours per week he claims he worked, which he argues could not have resulted in an average weekly figure for Comcare make up pay of only $72.82. A more precise calculation requires an analysis of all the components of this calculation. The Tribunal is not satisfied that it has sufficient material on which it can be satisfied that it has no jurisdiction on that issue and accordingly it has decided to reinstate that aspect of Matter 2013/2758.
In conclusion, the Tribunal decided on 25 February 2010 that Mr Menz’s NWH is 58.16 hours per week and no complaint has been made about that figure. Further explanations and figures are needed, however, for Mr Menz and the Tribunal as to how the total amount of make-up pay spread over the relevant period was calculated in accordance with the Act. On that basis, the Tribunal will revoke its decision that it has no jurisdiction in relation to Matter 2013/2758, but only in relation to the issue of how the figure of $72.82 was reached, a decision over which the Tribunal does have jurisdiction and which was dismissed in error. In relation to that aspect only of Matter 2013/2758, the Tribunal has ordered it be reinstated under section 42A(10) of the AAT Act.
Border Express is to provide to the Tribunal and to Mr Menz a spreadsheet outlining in greater detail than the spreadsheets provided to the Tribunal to date, how the calculations were made which led to the result that the total amount of Comcare make-up pay during the period 12 July 2009 to 26 March 2010 amounted to $72.82. The calculations should show the adjustment percentage used, the NWE figure and the AE amount for each week of the period in accordance with section 19(3) of the Act and any figure reached each week for Comcare make-up pay.
Otherwise, the Tribunal has no jurisdiction to decide other aspects of Matter 2013/2758, nor does it have jurisdiction to reconsider all aspects of the decisions in Matters 2013/6003 and 2013/1890.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. .............[sgd]...........................................................
Associate
7 March 2014
Date of interlocutory hearing 9 December 2013 Date of written reasons
Advocate for the Applicant
7 March 2014
Maree Menz
Advocate for the Respondent Madelaine August Solicitors for the Respondent Moray & Agnew Lawyers
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