John Singer and Comcare
[2015] AATA 231
•17 April 2015
[2015] AATA 231
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2694
Re
John Singer
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 17 April 2015 Place Sydney The Tribunal affirms the decision under review.
........................[sgd]................................................
Ms N Isenberg, Senior Member
CATCHWORDS
COMPENSATION – workers compensation incapacity payments – whether the average weekly earnings and normal weekly earnings were correctly calculated – whether there has been any underpayment of compensation payments – decision affirmed
LEGISLATION
Compensation (Commonwealth Government Employee) Act 1971; s 25
Safety, Rehabilitation and Compensation Act 1988; ss 8, 9
CASES
Comcare v Thompson (2000) 100 FCR 375
McDonald v Department of Defence [1999] FCA 882
Comcare v Nicolas [2014]FCAFC 122
Brady and Comcare [2013] AATA 559
REASONS FOR DECISION
Ms N Isenberg, Senior Member
17 April 2015
DECISION UNDER REVIEW
On 27 November 2013 the Respondent affirmed various determinations dated between 4 August 1988 and 19 March 2014 in relation to the Applicant’s entitlements to workers compensation incapacity payments for the period 2 March 1988 to 14 February 1999. These determinations regarded his accepted claim for aggravation of stress and repetitive strain injury sustained on 2 March 1988. The Applicant seeks review of that decision.
BACKGROUND
From at least 1977 the Applicant worked as a teacher in real estate and valuation at the Canberra College of TAFE, previously part of the Department of Education and now the Canberra Institute of Technology (CIT), together described as ‘the Agency’. The Applicant’s last day at work was 3 March 1988. He obtained an invalidity retirement with effect from 11 November 1988.
The Applicant submitted a claim for ‘repetition strain injury (pain in arm and hand)’ (RSI) on 9 May 1986, caused by excessive clerical work under pressure and which he said occurred in November 1985. Liability was accepted under the Compensation (Commonwealth Government Employee) Act 1971 (‘1971 Act’) for that condition.
In September 1987, he lodged a claim for stress and aggravation of RSI. The Applicant said this was caused by performing his duties and which, he claimed, had become acute in June 1987. A further claim for compensation was lodged in April 1988 for aggravation of stress and RSI, with a claimed date of injury as 2 February 1988.
Liability continued to be accepted under the 1971 Act for the Applicant’s conditions. Liability also continued following the commencement of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’) on 1 December 1988.
The Applicant’s date of injury for the purposes of the calculation of average weekly earnings (‘AWE’) was 2 February 1988. Section 25(4) of the 1971 Act specified that for the purposes of calculating AWE the period immediately preceding the date of injury be no longer than 12 months. In the 12 months prior to the date of injury, the Applicant’s substantive position was a Teacher Band 2. At the date of injury, the AWE was calculated on the basis of a Teacher Band 2.
However, with effect from 31 March 1988, at which time the Applicant was still an employee of the Agency, a Second Tier agreement (‘STA’) was reached between the ACT Teachers Federation and the ACT Institute of Technical and Further Education. One outcome of the restructuring proposal was to reduce the number of staff in management positions, including the former Teacher Band 2 classification. The Applicant’s position was reclassified as a ‘new’ Band 1.
There was, however, an accompanying pay rise with the reclassification. According to the STA, the former Teacher Band 2 annual salary was $36,146, which apparently increased to $36,459 following the ‘National Wage Case decision of February 1988’.
The Applicant was paid incapacity payments at the new Band 1 rate, which was higher again, being approximately $37,900.
The Applicant retired from his employment on 11 November 1988.
LEGISLATION AND RELEVANT LAW
The Applicant’s incapacity entitlements were to be calculated under the provisions of the 1971 Act and the SRC Act.
AWE was to be calculated in accordance with s.25 of the 1971 Act and the normal weekly earnings (‘NWE’) was to be calculated in accordance with s.8 and s.9 of the SRC Act. Both those provisions provide a code with respect to the calculation of AWE and NWE. Unless specifically provided for within those sections, increases in salary, allowances or other remuneration benefits cannot be included within AWE/NWE: Comcare v Thompson (2000) 100 FCR 375.
Similarly, the relevant period for the purposes of calculation of AWE/NWE is tied to the period immediately before the date of injury, not any other date which might produce a ‘better’ AWE/NWE outcome: McDonald v Department of Defence [1999] FCA 882; Comcare v Nicolas [2014] FCAFC 122.
That an employee might have later gone on to work in a position which would have given access to overtime or other additional payments has no bearing upon either the initial calculation of AWE/NWE or subsequent increases of AWE/NWE unless specifically provided for in the sections: Brady and Comcare [2013] AATA 559.
While an employee continues in employment, AWE/NWE can only increase in accordance with specified criteria.
Where an employee continues in employment and the employee’s AWE/NWE before the date of injury exceeds what the employee would ordinarily continue to earn, the employee’s AWE/NWE is reduced by that amount of the excess (s.8(10) of the SRC Act and s.25(11A) of the 1971 Act): ACT v Comcare & Anor (2012) 125 ALD 439; JHG v Robertson (2010) 117 ALD 215.
ISSUES BEFORE THIS TRIBUNAL
·Whether the AWE and NWE figures used to calculate the Applicant’s incapacity entitlements under the provisions of the 1971 Act and the SRC Act were based on the correct position classification; and
·If not, whether there has been any underpayment that has resulted and the amount of that underpayment.
CONSIDERATION OF THE EVIDENCE
The Applicant had many concerns relating to his former employment as a teacher. As I explained at the hearing, the scope of my enquiry was limited to the decision under review. In that regard, the Applicant contended that his compensation had been underpaid, and disagreed with the AWE/NWE figure used to calculate his incapacity entitlements. His main contention was that his AWE/NWE had been calculated on an incorrect basis, namely that his position had been downgraded, without his knowledge, prior to his invalidity retirement. He claims his teaching position was downgraded by virtue of the STA and that his incapacity payments have been calculated based on the lesser salary associated with the lower classification.
He claims there was a $4,000 difference in salary between his former position of Teacher Band 2 (Head of Department) and his new position under the STA. Had he been paid as a Teacher Band 2 under the new structure, the Applicant says he would have been paid an additional $4,000 per year for 11 years.
The ‘Second Tier Agreement’ (STA)
The Respondent was unable to produce a final version of the STA.
The STA involved a three band teaching structure replacing the existing five band structure. Under the STA, people who filled former Teacher Band 2 positions, who were not selected to fill the position in the new structure, automatically became Teacher Band 1, Senior Teaching Post (STP), a position with greater authority and responsibility than a person classified as a standard Teacher Band 1.
A number of circulars entitled “Second Tier Implementation” were said to have been distributed to teaching staff to provide information about how they might be affected by the STA. The Applicant denied receiving a copy of the STA or the circulars, as he was on sick leave at the time. He provided statements from two colleagues, Mr Neil Quinn, who had been on leave, and Mr Mike Stock, who had been seconded interstate, both of whom state they also did not receive the circulars. As concerning as this may be for the Applicant, the STA comprised an administrative reclassification that did not require the Applicant’s approval.
In any event, a file note dated 2 February 1988 indicates that although the Applicant was on sick leave when the restructuring occurred, he was informed of the new staffing arrangements. He was reportedly going to apply for the reclassified Teacher Band 2 position.
The Applicant referred to a letter from Mr Fisher, a Director of ACT Institute of TAFE, dated 20 October 1988. The letter, dated after the STA was introduced, referred to the Applicant as a ‘Teacher Band 2’. He claims this means he was a Teacher Band 2 in the new structure.
Under the STA, positions at the higher levels were to be advertised and filled on merit, but apparently, from the Applicant’s evidence, this did not occur for some months. Pursuant to the STA though, the former positions were abolished from 31 March 1988. Presumably, either the new positions were left vacant or were filled on an ‘acting’ basis. Consistent with the latter, on 9 February 1988 the Applicant advised by letter that he attended work to find someone else had filled the head of department role. He demanded immediate reinstatement to his substantive position.
APPLICATION OF SECTION 25(11A) OF THE 1971 ACT
Section 25(11A) is applicable for two periods during the relevant period prior to the commencement of the Act on 1 December 1988:
·from 31 March 1988 to 11 November 1988 - s.25(11A)(a); and
·from 12 November 1988 to 30 November 1988 - s.25(11A)(b).
From the commencement of the STA on 31 March 1988 until the Applicant’s retirement on 11 November 1988 he was incapacitated for work. Applying s.25(11A)(a), had the Applicant not been incapacitated for work, by virtue of the effect of the STA, the amount per week that he would have received would be the salary of a Teacher Band 1 (STP).
After the Applicant’s retirement on 11 November 1988 until the commencement of the Act on 1 December 1988, s.25(11A)(b) is applicable. Applying the test in s.25(11A)(b), the following is established:
·Step 1: The AWE before the injury - this is the salary of a (old) Teacher Band 2 as this is the substantive position which the Applicant held before he was injured: s.25(11A).
·Step 2: The amount per week that an employee would receive if the employee had continued to be employed by the Commonwealth in the employment in which he was engaged at the date of injury: s.25(11A)(b)(i). The effect of the STA was that the Applicant’s ‘employment’ from 31 March 1988 was no longer a substantive Teacher Band 2 position as that position had ceased to exist. From 31 March 1988 his ‘employment’ was reclassified as a Teacher Band 1 (STP) position.
·Step 3: The amount per week of the earnings that the employee would receive if the employee had continued to be engaged in the employment in which he was engaged at the date on which his employment with the Commonwealth ceased: s.25(11A)(b)(ii). That employment as at 11 November 1988 was as a Teacher Band 1 (STP).
The ‘amount’ identified under both s.25(11A)(b)(i) and (ii) is the same amount. That amount is also less than the Teacher Band 2 salary under the STA so the difference between the two is the amount by which the Applicant’s AWE was reduced.
On the commencement of the SRC Act on 1 December 1988, the Applicant’s AWE became his NWE and subsequent increases were in accordance with the provisions of that Act.
The effect of the STA was that those individuals at the former Teacher Band 2 level whose position ceased to exist and who were not selected for the new higher positions were reclassified as a Teacher Band 1 at a newly-created designation of ‘Senior Teacher Position’ (STP) within the Teacher Band 1 level. The Applicant was not appointed to a new Teacher Band 2 position and accordingly from 31 March 1988 his substantive position became a Teacher Band 1 designated as a ‘STP’.
The Applicant’s pay history confirms that on 31 March 1988, pursuant to the STA the Applicant’s classification changed from Teacher Band 2 to Teacher Band 1 (STP) and his salary increased from $36,459 to $37,913. At no time prior to his retirement on 11 November 1988 was he promoted to a higher position. Accordingly, s.25(9) of the 1971 Act has no application to the calculation of his AWE.
Under the STA, teachers who had been in Teacher Band 2 positions who were not selected to fill the Teacher Band 2 positions in the new structure automatically became Teacher Band 1, STP, which is what happened to the Applicant. His salary increased from $36,459 to $37,913 following implementation of the STA.
Information about the Applicant’s AWE/NWE accords with his pay history consistent with the implementation of the STA and calculation of his incapacity compensation has been based on that information in accordance with the1971 Act and the SRC Act.
The classification and rates Comcare used to calculate the Applicant’s incapacity entitlements were correct.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding thirty‑six (35) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ................................[sgd]........................................
Associate
Dated 17 April 2015
Date of hearing 10 February 2015 Applicant In person Counsel for the Respondent Mr Ben Dube Solicitors for the Respondent Ms Shelley Leembruggen, Sparke Helmore
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