Jarrett and Comcare (Compensation)

This matter concerned an appeal before the Tribunal regarding the calculation of normal weekly earnings for an applicant who had suffered an accepted injury. The dispute centred on the appropriate period to be used for calculating the applicant's average weekly overtime earnings. The applicant contended that a longer period than the standard two weeks prior to the injury was necessary to fairly represent his overtime earnings, while the respondent argued for the standard two-week period.

The legal issue before the Tribunal was to determine the "relevant period" for the purposes of section 8(2) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) in calculating the applicant's normal weekly earnings, specifically concerning overtime. This involved considering whether the standard two-week period prescribed by section 9(1) of the SRC Act fairly represented the applicant's overtime earnings, or if an alternative period was warranted under section 8(5) of the SRC Act.

The Tribunal referred to the Federal Court's decision in *Comcare v Nicolas* [2014] FCAFC 122, which clarified the operation of sections 8 and 9 of the SRC Act. The Federal Court indicated that section 8(5) allows for the selection of an alternative period if the standard two-week period does not "fairly represent" normal weekly earnings, such as in cases of fluctuating hours or shift work. However, the Tribunal found that in this specific instance, the standard two-week period prior to the date of injury, as provided by section 9(1), was sufficient and fairly represented the applicant's overtime earnings. Consequently, section 8(5) was not engaged.

The Tribunal concluded that the relevant period for calculating the applicant's normal weekly earnings was two weeks prior to his injury on 22 February 2021. It accepted that the applicant had worked an average of 13.98 hours of overtime per week during this period. Accordingly, the decision under review was set aside, and the Tribunal substituted its own decision, confirming the two-week relevant period and the average of 13.98 hours of overtime per week.