JAMES MENZ and BORDER EXPRESS PTY LTD
[2013] AATA 317
[2013] AATA 317
Division GENERAL ADMINISTRATIVE DIVISION File Number
2010/3673
Re
JAMES MENZ
APPLICANT
And
BORDER EXPRESS PTY LTD
RESPONDENT
Decision
Tribunal PROFESSOR RM CREYKE, SENIOR MEMBER
Date 17 May 2013 Place Canberra The decision under review, so far as it relates to entitlement to Rostered Days Off, is affirmed.
.....................................[sgd]...................................
PROFESSOR RM CREYKE, SENIOR MEMBER
Catchwords
COMPENSATION – Commonwealth employee – calculation of incapacity payments – calculation of normal weekly earnings – whether rostered days off are an allowance according to section 8 of the SRC Act 1988 – whether deductions from payslips of amount ‘banked for RDOs’ authorised by sections 8 and 19 of the SRC Act 1988
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4, 8, 19 and 62
Cases
Bortolazzo v Comcare (1997) 75 FCR 385
Re KCZH and Comcare [2009] AATA 861
Re Pike and Linfox Australia Pty Ltd [2011] AATA 378
Re Sutton and Comcare (1996) AATA 168
Re Zarb and Comcare (1997) 48 ALD 718
Steggles Pty Ltd v Vandenberg (1987) 163 CLR 321
Secondary Materials
Road Transport (Long Distance Operational) Award 2010 clause 20
Transport Workers (Long Distance Drivers) Award 2000 [Transitional] clause 29
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
17 May 2013
Mr James Menz has an accepted condition of left shoulder injury (tear of supraspinatus and infraspinatus tendon), and secondary psychological injury. He has not worked since 13 August 2010. Mr Menz has not resigned from Border Express, but has been certified unfit to work.
Liability was accepted for the injury from 9 May 2008. Mr Menz’s Normal Weekly Earnings (NWE) amount was originally calculated by reference to a twelve week period prior to the date of injury. Subsequently his NWE was increased having regard to award changes.
On 29 June 2010, his employer, Border Express, a licensed corporation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act),[1] decided the extent of its liability for incapacity payments under section 19(2) and (3) of the Act for the weeks ending 28 February 2010 to 23 May 2010.
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) s 4(1) – defines ‘licensed corporation’.
Mr Menz sought reconsideration of that decision on 5 July 2010 under section 62 of the Act. Border Express made a further decision on 30 July 2010 affirming its decision of 29 June 2010.
Mr Menz sought further review by the Tribunal on 27 August 2010. The matter was heard by the Tribunal in Canberra on 31 January 2013. Following a telephone directions hearing on 20 March 2013 further material was provided on 27 March 2013.
Background
Mr Menz has been employed by Border Express as a long haul driver since 5 February 1989. Except for the first eight to ten years, he was paid trip money rather than for hours worked. According to material in evidence, prior to the week commencing 28 July 2008, no deduction for Rostered Days Off (RDO) was shown on Mr Menz’s salary record. Instead 2 hours, or a portion of that time if Mr Menz had not worked a full week, was shown as being allocated to an ‘RDO bank’.
However, from 28 July 2008 in one record, and from 6 August 2008 in a spreadsheet provided by Border Express for the hearing, an amount commenced to be shown as a deduction for RDO in the payslips or pay calculations for Mr Menz. Thereafter the deductions continued. Mr Menz ceased work on 13 August 2010.
Earlier, in a document entitled Employee Previous Earnings the spreadsheet included both RDO hours and, in the ‘amount’ column, a quantification for the RDO hours. These figures were listed against ‘Other leave – RDO’. The entry began for the week ending 3 July 2005. In the same spreadsheet, there was an item ‘RDO Bank Linehaul’. For that item hours were shown for RDOs but an amount of Nil was listed in the amount column. The hours shown against both ‘Other leave – RDO’ and ‘RDO Bank Linehaul’ generally corresponded. However, there were discrepancies for some entries, but generally the differences were no more than an hour. The entries for ‘Other leave – RDO’ were irregular and apparently corresponded with weeks in which Mr Menz had actually taken RDOs. The entries for ‘RDO Bank Linehaul’ appeared weekly.
These notations continued until the payment date of 6 August 2008 when the entry for ‘Other leave - RDO’ no longer appeared. Instead, against ‘RDO Banked’ there is a deduction of hours and a corresponding deduction in the amount column. The hours correlated with the number of hours Mr Menz had accrued in the RDO Bank. In other words, they do not represent hours taken under the RDO entitlement. These notations appeared each week. These changes in the spreadsheet were not explained.
In a letter to the Tribunal dated 30 January 2013 the following information was provided by Border Express in relation to the reduction. The letter noted that a Border Express employee was entitled to an RDO of one day for each month of employment. The entitlement had been included in the Transport Workers (Long Distance Drivers) Award 2000 [Transitional] clause 29, and subsequently the Road Transport (Long Distance Operational) Award 2010 clause 20. It was accepted by both parties that it is the terms of the Transitional award which are relevant for the purposes of this matter. The letter said:
An RDO is in addition to the entitlement to days off provided elsewhere.
RDOs accrue and are paid in accordance with the Award.
In each pay period a portion of an employee’s wages are held in their ‘RDO Bank’. The purpose of ‘banking’ a portion of the weekly wage is to enable the employee to take an RDO day a month and receive normal pay, with the wages for the RDO being paid out of the RDO bank at the applicable Award rate at the time that the RDO is taken by the employee.
The Award entitlement to accrue and be paid for an RDO provides no increase in weekly pay at any time.
In circumstances where an employee does not take an RDO during employment, the RDO entitlements are accumulated in the ‘RDO bank’. The value of the accumulated RDO entitlement is paid to the worker in accordance with the Award, such as when the employee takes an RDO or on cessation of employment or taking long service leave. Alternatively, Border Express can make payment of the value of accumulated RDOs not taken during employment at the request of an employee.
Mr Menz has a current accrural of 236.50 hours ‘banked’ at the applicable award rates. During the period 3 May 2008 to 13 August 2010, the accrual of RDOs were banked at the applicable Award rate…As at 30 January 2013, Mr Menz has 236.50 hours of accumulated RDO entitlements, which are valued at $4,517.15 based on the current hourly rate in the award of $19.10 per hour.
The sum of $4,517.15 accrued during this period will be paid to Mr Menz in accordance with the Award or at his request as part of his entire outstanding entitlement to RDO.
The award also noted that ‘accumulation of rostered days off shall be ten over a period of ten months’ employment, exclusive of periods of leave as provided’.
In an explanation provided by Border Express for the purpose of this application the calculation of Mr Menz’s salary was said to be as follows:
·The first 40 hours of each week is paid at the base Award rate (‘ordinary pay’), being $17.3475.
·The next 2 hours of any shift are paid at time and a half of the base Award rate (‘overtime 1.5’) being $26.0212.
·Every hour after that is paid at double time of the base Award rate (‘overtime 2.0’) being $34.695.
·In a normal week the sum of $34.70 (representing 2 hours pay at the base Award rate) is accrued by the Applicant into his RDO entitlement bank (this is represented as a deduction on the payroll data).
Calculations of incapacity payments
This application turns on the calculation of incapacity payments, which in turn is dependent on the figures provided for the purposes of the formula in section 19 of the Act. Calculation of incapacity payments depends on Mr Menz’s (NWE) and his weekly earnings or ability to earn (AE).
Initially, Border Express undertook several sets of calculations to decide what should be the NWE figure. These included a calculation based on a 52 week period prior to the date of injury. An amount of $2668.52 against ‘Other Leave – Rostered Day Off’ was shown as salary in the calculation for the 52 week period. There was a Nil figure shown against ‘RDO Bank Linehaul’. These notations correspond with the ‘Employee Previous Earnings’ spreadsheet referred to in paragraph 8 of these reasons.
Ultimately a calculation based on a 12 week period prior to the date of injury was used to calculate Mr Menz’s NWE. This calculation showed only a Nil amount against ‘RDO Bank Linehaul’, and there was no entry for ‘Other Leave - Rostered Day Off’. A figure is included for ‘Other leave – Public holidays’, but not for ‘Other leave – RDO’. However, the Tribunal was advised at the hearing that Mr Menz did not take any RDOs in the 12 week period prior to the injury.
The initial calculation of NWE from 30 May 2008 was $1,375.83, adjusted on 1 July 2008 to 1,495.82. That amount was further adjusted on 26 June 2009 to show $1,573.41. The figure of $1,573.41 in the spreadsheet provided by Border Express was described as ‘All pays 12 weeks prior to date of injury’. An alternative calculation described as ’12 normal weeks (no public holidays or leave) prior to date of injury’ which produced an NWE of $1,561.79 was apparently not adopted. The figure of $1,573.41 was used thereafter as the baseline figure for any award increases. By 2 July 2012 the NWE had been adjusted to include award increases and amounted to $1,622.98. The Tribunal is satisfied that this figure takes account of amounts paid to Mr Menz for leave taken during the 12 week period used for the calculation.
A further spreadsheet entitled ‘Employee Previous Earnings’ shows that beginning in the week ending 6 November 2005 there is an amount column as well as an hours column for RDOs. So from that time, Border Express has been quantifying the amount shown against ‘Other leave – Rostered Day Off’ when an amount of time had been taken as an RDO and Mr Menz had been paid during that time.
A Comcare review of Mr Menz’s file conducted on 11 August 2010 found in relation to the RDO issue:
Mr Menz has reportedly complained that his RDO has been taken away from him as he sees a calculation which deducts $34.50 each week from his earnings. However, RDOs are included in the normal weekly earnings figure and are ‘banked’ for future use rather than paid outright. Mr Menz has a large unused RDO bank which can be paid out in cash or taken as time off at any time. His RDO balance is shown on his payslip as leave. The payslip provided with his recent complaint shows an RDO balance of 228.90 hours. RDOs are an award entitlement for [Border Express] employees such as Mr Menz.
Issues
The issues are whether:
·the incapacity payments to Mr Menz between 3 May 2008 and 13 August 2010 were correctly calculated in accordance with sections 4, 8 and 19 of the Act; and
·an amount payable for a RDO is an ‘allowance’ for the purposes of section 8 of the Act.
Legislation
The relevant legislation is found in the Act. Key provisions in this matter are relevant portions of sections 4, 8 and 19.
Interpretation
4(1) "normal weekly earnings" means the normal weekly earnings of an employee calculated under section 8.
"normal weekly hours", in relation to an employee, means the average number of hours (including hours of overtime) worked in each week by the employee in his or her employment during the relevant period as calculated for the purpose of applying the formula in subsection 8(1) or (2).
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…
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:
where:
"AE" is the greater of the following amounts…
"NWE" is the amount of the employee's normal weekly earnings…
19(3) Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
where:
"adjustment percentage" is a percentage equal to:
(a) if the employee is not employed during that week--75%; or…
(f) if the employee is employed for 100% of his or her hours during that week--100%.
"AE" applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
"NWE" is the amount of the employee's normal weekly earnings.
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:
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.
Other provisions are found in the relevant awards. These are the Transport Workers (Long Distance Drivers) Award 2000 [Transitional] clause 29, and the Road Transport (Long Distance Operations) Award 2010 clause 20. It was the Transitional award which was in force at the time of the matters under consideration in this application for review.
Contentions
The contentions of counsel for Border Express follow.
‘The Award entitlement to accrue and be paid for an RDO provides no increase in weekly pay at any time’. That provision means that Mr Menz was not entitled both to have an accrued entitlement held for him at the RDO bank, while also being paid his full salary each week. Otherwise he would be paid twice or be ‘double dipping’. As counsel said the $34.00 or so a week should be deducted as otherwise it would ‘put Mr Menz in a better position than any other employee because he would have in fact received the $34.00 twice’.
The RDO was not an ‘allowance’ in the terms of the definition of that term in section 8(1). His argument was:
…there is no financial benefit…in its intention. It’s a day off, it’s not an allowance. There is a financial benefit if it’s paid on cessation, as in the accrual that’s currently there now, but that financial benefit only crystallises if the employee ceases to be an employee or does something inconsistent with what the intention of the provision is…[O]ne cannot receive a financial benefit, e.g. an allowance, if you don’t receive any additional pay. You are simply allowed time off in lieu…
The rostered day off amount of money is referred to in a payslip as an amount of money, but then there’s a zero calculation in the total of the income. Although it’s referred to, it goes off to the RDO bank, so there’s a zero calculation.
Mr Menz’s entitlements must be calculated taking account of Mr Menz’s conditions of employment and his terms of engagement.
The amount of $34.00 or so had not been deducted from Mr Menz’s salary. Rather it had simply been held in the RDO bank for use by the employee. If there was an argument that Mr Menz had been underpaid salary after the date of injury, as compared with prior to the date of injury, counsel contended that was an industrial issue with which the Tribunal cannot deal.
The amount per week deducted from Mr Menz’s salary was a reduction of his ‘AE’ amount, that is, the greater of either Mr Menz’s earnings in suitable employment, or the amount he earned from any employment including self-employment undertaken during that week. As Senior Member Handley said in Re KCZH and Comcare:
Quantification of weekly compensation for incapacity is principally found at section 19 of the Act. In my view, the use of the word earnings against the meaning given to NWE and the phrase ‘the amount per week…the employee earns’ are a deliberate intention to calculate a weekly compensation rate by regard to an amount actually received, on (sic) a reward or remuneration for labour.[2]
[2] Re KCZH and Comcare [2009] AATA 861 at [8].
The information in the Comcare review of the Menz file states that the ‘RDOs are included in the normal weekly earnings figure’.
Border Express in its ‘Further Statement’ dated 2 December 2010 contended:
...that the correct methodology to calculate the incapacity amount is to first calculate the Applicant’s AE amount inclusive of the $34.70 accrued for the purposes of RDO accrual (i.e. based on actual hours worked and actual moneys earned in employment). If the respondent was required to calculate the AE after the deduction of the RDO amount, this would result in an overpayment of $34.70 to the Applicant who would have $34.70 accrued to the RDO Bank under the Award and additionally be paid $34.70 under the Act by way of compensation.
The contentions of Mr Menz in an email dated 5 July 2010 were that from 1 July 2009 his pay was wrongly calculated. He claimed that the deduction of $34.70 per week to be paid into a RDO bank for use, as required, by an employee was not authorised. That claim was repeated in a further submission dated 11 March 2011 on behalf of Mr Menz.
Mrs Menz, for Mr Menz, also made a number of submissions as follows.
Until 5 August 2008, the RDO accrual of hours had no monetary figure attached to it. So there was no deduction from the normal weekly earnings. That was the position prior to Mr Menz’s date of injury. She submitted that was how it should have continued. Although the hours worked by Mr Menz may have varied in that week, if he worked the full week, the same number of hours accrued. If Mr Menz worked only 4 days a week, the accrual was pro rata. No monetary figure appeared in relation to the RDO figure in the weekly pay packet. That changed on 5 August 2008, when a deduction was made from the weekly salary.
From 5 August 2008, the RDO bank became an RDO deduct and a monetary figure was attached to it. Employees were not told about the change of practice which resulted in a change to their weekly income. As a consequence Mr Menz was worse off. She agreed that he should not be better off, but conversely neither should he be worse off.[3]
[3] Bortolazzo v Comcare (1997) 75 FCR 385.
She was unaware whether the change was due to a change in the Award. She maintained that the reduction was a change in his terms and conditions of employment and engagement. About ten years previously, employees were asked whether they wanted a pay rise instead of the RDO accrual. Mr Menz had declined that offer.
The RDO was an entitlement akin to annual leave. She acknowledged that for the employer it had a monetary value attached, but she claimed it had no monetary value for employees. For every week worked a set number of hours accrued in the RDO bank.
Consideration
The decision under review was a decision made by Border Express on 30 July 2010 to affirm the decision of 29 June 2010 which calculated the amount of Mr Menz’s NWE for the weeks ending 28 February 2010 through to the week ended 23 May 2010. His NWE at that time was shown as $1,596.21 and his Normal Working Hours (NWH) as 58.16 hours per week. The NWH was the outcome of a decision by the Tribunal on 25 February 2010. The figure for NWE of $1,596.21 was the applicable amount based on a ‘normal’ rate of $16.7474 per hour and took into account award increases added to the initial amount of $1,573.41. The NWE amount of $1,596.21 was the figure which resulted from an award increase effective from on 29 September 2009.
In its reconsideration decision of 30 July 2010, Border Express noted that the full amount of $1,596.21 per week had been paid to Mr Menz as incapacity payments from the period 28 February 2010 to 30 June 2010.
The reconsideration decision reaffirmed the calculation for the period to 30 June 2010. Border Express also noted in its decision that it had no jurisdiction to consider any application for review for the period from 1 July 2009 to the week ending 28 February 2010 since that was outside the terms of the original decision. The original decision related only to the weekly incapacity payments from the period 28 February 2010 to the week ended 23 May 2010.
However, counsel for Border Express at the hearing said that the application for review related to a closed period from the date of injury, namely, 3 May 2008 until Mr Menz ceased working on 13 August 2010. This concession contradicted the letter from Border Express dated 30 July 2010 which stated that the reconsideration was confined to the pay periods referred to in that letter, namely, 28 February 2010 to 23 May 2010. The Tribunal has accepted the concession given that there are several applications by Mr Menz before the Tribunal, and with the aim of limiting further disputation on this issue. Its reasons are couched accordingly.
Whether an amount payable for a Rostered Day Off (RDO) is an ‘allowance’ for the purposes of section 8 of the Act
Section 8 of the Act provides that the calculation of NWE for the period is based on the average number of hours worked (NH), the average hourly ordinary time rate of pay (RP) and ‘the average amount of any allowance payable to the employee in each week…other than an allowance payable in respect of special expenses’.
Allowances ‘arise directly from and are a recompense for the particular labour and/or service provided by the employee’.[4] Although the RDO is certainly recompense for Mr Menz’s labour, it is not an amount which he receives in addition to his normal salary ‘for such things as conditions encountered during service, special qualifications, special duties and so on’.[5] It is akin to a ‘paid leisure day’ earned simply as a result of working at the person’s normal work for a set period.[6]
[4] Re Zarb and Comcare (1997) 48 ALD 718 at [53].
[5] Re Sutton and Comcare (1996) AATA 168 at [12].
[6] Steggles Pty Ltd v Vandenberg (1987) 163 CLR 321. See also Re Pike and Linfox Australia Pty Ltd [2011] AATA 378.
As Mrs Menz said, Mr Menz was offered the option of a pay rise or to accrue RDOs, indicating that the amount allocated to the RDO could equally have been salary. In that context it is significant that the accrued amounts are listed under the Employee Leave Record and that the Transport Workers (Long Distance Drivers) Award 2000 [Transitional] clause 29.9 provided that payment for RDOs was to be at ‘Minimum rates of pay’, tying the calculation to ordinary pay and conditions. Accordingly the amount should not be excluded from NWE as an allowance.
Whether the incapacity payments to Mr Menz were correctly calculated in the relevant period
Calculation of NWE
No issue was taken by the parties in relation to the amount of the NWE or of the NWH used by Border Express in its calculations. Nor were there queries about the quantity of Mr Menz’s accumulated RDO hours, nor the quantification of those hours in the RDO bank. Nonetheless, the Tribunal needs to be satisfied of the basis on which the calculation of NWE was reached in order to be satisfied of the correctness of the overall calculation of incapacity payments.
The NWE figure was initially based on Mr Menz’s salary for the 12 week period prior to his injury. In that period the Tribunal was advised that Mr Menz did not take any RDO leave. That is confirmed from the Employee Previous Earnings report which shows no RDOs were taken between 13 January 2008 and 1 June 2008. So the average figure would be based solely on his earnings, any deductions, and leave payments including for RDOs, during the 12 week period.
The correctness of that conclusion is supported. The Comcare file review stated: ‘Rostered Days Off (RDOs) have been included in the calculation of normal weekly earnings and “banked” for future use’. That is confirmed by the alternative calculation by Border Express for the purpose of calculating NWE, based on the 52 weeks prior to the date of injury, which did include a component for income received by Mr Menz for ‘Other leave – Rostered Days Off’. So it can be inferred that if Mr Menz had been paid for ‘Other leave – Rostered Days Off’ during the 12 week period chosen for the purposes of the NWE calculation, the figure would have been included as income. The finding is also consistent with the treatment of payment for RDOs as leave.
The treatment of RDOs as an ordinary leave entitlement is also evidenced in the Employee Previous Earnings spreadsheet for Mr Menz. That document shows that leave entitlements in hours and amounts have been quantified in Border Express documents since at least 1 November 2005. The rate for RDO leave is also the same rate as annual leave. For the 52 week calculation, an amount of $2,668.52 was listed against ‘Other leave – Rostered Day Off’. The Employee Previous Earnings documents for ‘Other leave – Rostered Day Off’ also amounts to $2,668.52 in that same period.
In the spreadsheet for the 52 week calculation the amount Mr Menz had taken as RDO leave has been included in his income for that period. It has not been deducted. So for the purpose of calculating NWE the Tribunal is satisfied that RDO leave was treated like other forms of leave and when he was paid for leave taken during that period the amount was included in his income. So the Comcare file review comment is correct: RDO amounts paid were taken into account in the calculation of Mr Menz’s income for the purposes of NWE, and that was a correct calculation.
Calculation of AE
The second element in the formula for assessing incapacity payments is AE or the employee’s ability to earn. The Comcare file review noted that ‘Mr Menz’s AE component has been calculated on the basis of actual hours worked since he was certified fit to work full time suitable duties from 13 June 2008’.
Border Express in its ‘Further Statement’ dated 2 December 2010 contended:
...that the correct methodology to calculate the incapacity amount is to first calculate the Applicant’s AE amount inclusive of the $34.70 accrued for the purposes of RDO accrual (i.e. based on actual hours worked and actual moneys earned in employment). If the respondent was required to calculate the AE after the deduction of the RDO amount, this would result in an overpayment of $34.70 to the Applicant who would have $34.70 accrued to the RDO Bank under the Award and additionally be paid $34.70 under the Act by way of compensation.
The AE represents the amount Mr Menz actually earned each week. Those earnings take into account the amount of hours he worked for which he is paid at rates determined under the relevant award. If he does not work for any period but receives a leave payment for that period his income for AE purposes includes that payment. An RDO leave entitlement is like any other entitlement to leave in that respect.
The Tribunal accepts that Mr Menz was not entitled to be paid twice for the amount accrued for AE. That would mean he was better off. However, if by that statement it is intended that the calculation should be first included in the amount of Mr Menz’s earnings and then the same amount deducted to avoid double dipping, the figures provided to the Tribunal do not indicate this process was followed. There is some inconsistency in the figures provided. What is apparent, however, from the spreadsheets is that Border Express has changed its method of presentation of salary from August 2008 so that the figures show a deduction for an amount of accrued RDOs. On the evidence before the Tribunal that change was not advised to its employees. That is an industrial issue which is not before the Tribunal.
At the same time, the Tribunal does not consider that Mr Menz’s salary has been adversely affected. If a comparison is made between the payslip for Mr Menz for 21 July 2010, the week prior to a monetary deduction for RDO accrued being shown, and the payslip for 28 July 2010, the week after the monetary deduction commences, there is no difference in Mr Menz’s taxable income. That is because of the operation of the formula in section 19 of the Act. A person who is in receipt of workers’ compensation is entitled to receive the amount of the NWE, and, given other deductions have not changed, any difference between the AE amount and the NWE amount is made up by the compensation provider in its compensation amount.
In Mr Menz’s case, the amount of his NWE is fixed, and the deductions remained the same for both weeks. The result is that whatever his AE, the Border Express workers’ compensation amount must total his NWE, which means Border Express is making up any shortfall in the amount of compensation payments it is making each week to him.
That this has occurred is illustrated by an examination of the two relevant payslips. The hours Mr Menz actually worked in the week commencing 21 July were the standard 40 hours, as compared with only 32 hours in the week commencing 28 July. Hence, the amount of his compensation payment in the week commencing 21 July 2010 was $558.04 compared with $670.25 in the week commencing 28 July 2010, the week in which Mr Menz worked less hours and in which a deduction for RDOs has been made. The increased amount of compensation in the second week reflects the lesser hours Mr Menz worked and the amount deducted for RDO accrual. Nonetheless, the taxable income in both weeks is the same. Border Express has paid him the difference and made up the amount of any shortfall.
That means the revised method of accounting has not disadvantaged Mr Menz and the decision under review is affirmed. Whether the change in methodology has disadvantaged others working for Border Express who are not also receiving compensation is not before the Tribunal.
These reasons relate solely to the issue of RDO entitlement and do not finalise the entire matter before the Tribunal.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member .....................................[sgd]...................................
Associate
Dated 17 May 2013
Dates of hearing 31 January and 20 March 2013 Date final submissions received 27 March 2013 Advocate for the Applicant Mrs Maree Menz Counsel for the Respondent Mr David Richards Advocate for the Respondent Ms Madelaine August Solicitors for the Respondent Moray and Agnew Lawyers
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