Kelly and Comcare (Compensation)
[2025] ARTA 92
•13 February 2025
Kelly and Comcare (Compensation) [2025] ARTA 92 (13 February 2025)
Applicant/s: Katrina Kelly
Respondent: Comcare
Tribunal Number: 2024/0660
Tribunal:General Member M. Carey
Place:Melbourne
Date:13 February 2025
Decision:
1. The reviewable decision made by Comcare dated 30 November 2023 is set aside.
2. In substitution for the decision set aside the Tribunal decides:
a. The normal weekly earnings calculated by the 'relevant period' referred to in subsection 9(1) of the SRC Act yields a result that does not fairly represent the weekly earnings the employee was being paid in respect of her employment before the injury.
b. The other period for the calculation of normal weekly earnings pursuant to subsection 8(5) of the SRC Act is the period commencing 21 July 2022 and terminating on the day of injury on 23 May 2023.
c. All the overtime worked by Ms Kelly in that other period from 21 July 2022 to 23 May 2023 was regular and required.
d. There were no allowances paid to Ms Kelly in the other period from 21 July 2022 to 23 May 2023 relevant to the calculation of normal weekly earnings.
e. The Tribunal remits the matter to the Respondent to calculate normal weekly earnings pursuant to subsection 8(1) plus the additional amount for regular overtime pursuant to subsection 8(2) of the SRC Act in accordance with the findings of fact made in this decision.
...............[SGD].................
General Member M. Carey
Catchwords
COMPENSATION – Weekly payments for incapacity for work – Normal Weekly Earnings – Relevant Period – Relevant Period under s 9(1) SRC Act does not fairly represent weekly rate paid before injury – Other period to fairly represent weekly rate, s 8(5) SRC Act – Overtime on a regular basis.
Legislation
Safety Rehabilitation and Compensation Act 1988 (SRC Act)
Cases
Bradford and Comcare [1994] AATA 285; (1994) 37 ALD 187
Comcare v Nicolas [2014] FCAFC 122; (2014) 225 FCR 369
Gray v Comcare [2004] FCA 1037; (2004) 139 FCR 41
Bortolazzo v Comcare [1997] FCA 515; (1997) 75 FCR 385
Telstra Corporation Ltd v Peisley [2006] FCAFC 79; 151 FCR 275
Barrington and Comcare [2015] AATA 29
McGuire v Union Steamship Co. of New Zealand (1920) 27 CLR 570
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157
Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
Yates v South Kirkby Collieries [1910] 2 KB 538, 3 BWCC 418
Anderson Meat Packing Co Pty Ltd v Giacomantonio [1973] 47 WCR (NSW)
Rees v Military Rehabilitation and Compensation Commission [2005] AATA 690Statement of Reasons
Ms Katrina Kelly is entitled to compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (SRC Act) for an employment injury sustained on 23 May 2023. She has received weekly payments of compensation pursuant to section 19 of that Act because of continuing incapacity for work resulting from her injury.
This proceeding concerns a dispute about the level of those payments. The SRC Act provides that the level of weekly compensation payments is set by reference to the earnings of the employee prior to the injury. The reviewable decision made by Comcare on 30 November 2023 adopted the figure of $1,335.02 per week for normal weekly hours of 33 hours, 10 minutes 'and not inclusive of overtime earnings'.[1] The period during which that set of hours was selected was the period less than two weeks prior to 24 May 2023, the day following the injury. Ms Kelly, a part-time employee, had commenced a new part-time arrangement of hours on 15 May 2023. There had not been any overtime worked in that period.
[1] T26, 202. References to ‘T-Documents’ are references to documents lodged with the Tribunal pursuant to a Notice to the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), in operation when the application commenced. They are generally known as ‘Tribunal documents’, sequentially numbered, with subsequent page references. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
Ms Kelly disputes that conclusion and says that it does not fairly represent her true weekly earnings prior to the injury. She submits that an analysis of the 12-month period before injury provides a fair representation of her earnings before injury, during which time she regularly worked overtime.
The matter proceeded by way of submissions; the evidentiary materials available to the Tribunal were provided in the documents lodged by Comcare, which include various statements and evidence referred to by both parties in argument. The only other evidence admitted was Exhibit A1: The Department of Human Services Agreement 2017-2020 (the 2017-2020 Agreement).[2]
[2] This is an enterprise agreement made pursuant to section 172 of the Fair Work Act 2009. Though it has a nominal expiry date of three years it continued to provide the terms and conditions of employment of employees of the Department until the commencement of the Services Australia Enterprise Agreement 2024-2027 in or about February 2024, some months after Ms Kelly’s date of injury.
For the reasons that follow, I have concluded that the reviewable decision must be set aside and a new decision made in substitution finding that the period that would fairly represent the weekly rate at which Ms Kelly was being paid in respect of her employment was that period from 21 July 2022 to 23 May 2023, the date of injury, and that in that period Ms Kelly was required to work overtime on a regular basis. Accordingly, the normal weekly hours and normal weekly earnings calculations must be made in accordance with both subsections 8(1) and 8(2) of the SRC Act.
Background
Ms Katrina Kelly suffered an injury related to her work as a front-of-house Service Officer at the Services Australia office located at Airport West in the State of Victoria.
She made a claim for compensation to Comcare on 9 June 2023 stating that she was suffering from a psychological injury, which she first noticed at 1.20pm on 23 May 2023.[3] Ms Kelly attached a statement to her claim form detailing the circumstances of her traumatic injury. Shortly after her lunch on Tuesday, 23 May 2023, she was preparing for the afternoon's work. Earlier that day there had been an incident with a customer and the Service Centre had implemented a 'controlled entry' protocol for the safety of staff and other customers. She was away from her desk when she heard a duress alarm go off. Staff were rushing the other way down a corridor and shouting 'she's been stabbed'. She went to the scene and noticed that her Team Leader was motionless on the floor, bleeding heavily from stab wounds, and became overwhelmed by fear and confusion. She was aware of the customer who had made the assault and recognised him as someone who had assaulted another co-worker two years earlier. In her statement to Comcare she related how she remained at work outside the normal spread of hours that day, for which she was paid overtime rates, and was either assisting in the inquiries made by the Department or the Police, or trying to console and be consoled by her work mates, supported by the arrival of two social workers from Broadmeadows and a union delegate. It can be inferred from the statement of the circumstances that she did no further work after the incident that day, and further, she was incapacitated for such work. She completed her statement attached to the compensation claim:[4]
It's now been 10 days since the incident and I have only now mustered up the courage to be able to type this, however I'm typing this report on a surface pro that my husband bought home from his office for the night, as I'm struggling to return back to the workplace. Since the incident I feel traumatised and broken, I'm struggling to attend to my children, my husband and my usual day to day living chores. I find it difficult to go anywhere and if I do I either have my husband with me or one of my children, I have this sense of fear on a daily basis, I keep relieving this traumatic incident.
[3] T4, 29-34.
[4] T4, 34.
The claim form was accompanied by a medical certificate from Dr Hai Vy Ha dated 9 June 2023 diagnosing 'Post traumatic stress disorder and significant anxiety in the aftermath of witnessing a colleague being stabbed at work (Centrelink Airport West),' and describing her mental function as follows:[5]
[5] T5, 35.
Pt has been unable to function after witnessing the stabbing
Unable to sleep or eat
Unable to fulfil her activities of daily living
Feels disorientated and unable to concentrate
Memory is impaired
Mentally exhausted
Ongoing flashbacks of her colleague being stabbed
Pt is unable to attend to simple chores like looking after her teenage children or go grocery shopping by herself
Pt had a car accident as a result of the stress.
Comcare requested information from Services Australia, which responded in writing on 28 June 2023. The Assistant Director of the 'People Support Team' of Services Australia confirmed that on 23 May 2023 there had been a 'serious customer aggression incident' and that Ms Kelly 'witnessed her team leader lying injured on the floor' and that Ms Kelly had been incapacitated for work from 24 May 2023, the day following the incident.[6]
[6] T7, 43.
Services Australia notified Ms Kelly on 31 July 2023 that Comcare accepted liability for the injury of 'Post Traumatic Stress Disorder' pursuant to section 14 of the SRC Act and approved compensation for medical treatment costs pursuant to section 16 of that Act. The determination stated that the date of injury was 24 May 2023.[7]
[7] T8, 58-59. The decision is that of Comcare, a body corporate established by section 68 of the SRC Act. However, by section 73B of the SRC Act the Chief Executive Officer of Comcare may delegate any or all of Comcare’s powers (other than functions under the Work Health and Safety Act 2011) to an ‘officer of, or a person employed by, the Commonwealth or a Commonwealth authority’. The determination was attached to a letter from the claims agent, Allianz Australia Insurance Limited identifying the ‘relevant sections’ of the SRC Act referring to injury but only that part of the definition of injury in subsection 5(1) that concerned ‘disease’ and not the parts referring to ‘injury (other than a disease)’ which includes both physical and mental injuries arising out of or in the course of employment.
Weekly compensation for incapacity
Because Ms Kelly had been incapacitated for all work resulting from the injury, she was entitled to weekly payments of compensation pursuant to section 19 of the SRC Act.
On 29 September 2023, Comcare determined that Ms Kelly's Normal Weekly Earnings (NWE) for the purposes of the claim were $1,335.02 and that her Normal Weekly Hours (NWH) were 33.10, there being no allowances or overtime component.[8] Payments were made from 5 June 2023 on that basis.[9]
[8] T12, 68.
[9] T13, 72. A subsequent attempt was made to correct for the absence of payments from 24 May to 4 June 2023. However, the calculation for the period 24 to 28 May suggested that there were ‘actual earnings’ when in fact, Ms Kelly had not been at work to be entitled to earnings. However, this may be merely an adjustment since the first period was not a whole week of 7 days and therefore a clumsy adherence to the standard form provided.
On 18 October 2023 the Comcare delegate determined weekly payments of compensation for the period 5 June 2023 to 24 September 2023 pursuant to subsection 19(2) of the SRC Act based on the normal weekly earnings figures calculated on 29 September 2023.
Ms Kelly sought reconsideration of 'the determinations dated 29.09.23 and 18.10.23’[10] concerning her normal weekly earnings alleging the period selected for the calculation did not fairly represent her average earnings. In that request, Ms Kelly made reference to standard advice on the question issued by Comcare and asserted:[11]
(a)The period of two weeks prior to injury did not fairly represent the weekly rate she was being paid in respect of employment before injury, referring to subsection 8(5) of the SRC Act.
(b)The relevant period ought to reflect the earnings from overtime.
(c)She had worked regular overtime and the overtime was required, thus meeting the requirement of subsection 8(2) of the SRC Act.
(d)There was evidence of emails from management going as far back as July 2021 calling on staff to engage in weekend overtime.
[10] The determination of 29 September 2023 is a reference to the primary determination concerning the normal weekly earnings, T12, 68-71.
[11] T16, 83-90.
The Assistant Director of the 'Peoples Support Team' at Services Australia provided answers to the Allianz Claims Services Officer dated 17 November 2023, which may be conveniently summarised as follows:[12]
[12] T23, 109-112 with attachments marked A to J.
(e)There is an 'ad hoc need for staff to work overtime to manage the volume of various work types.'
(f)There is no specific overtime agreement relevant to any individual employee.
(g)The need for overtime is determined by a 'Workforce Management Team in the Operations Management Division' and there 'is no pattern to overtime being required'.
(h)Ms Kelly worked 'a very high number of overtime hours' in the period prior to 24 May 2023. 'This high number of hours, her part-time status, and the time the hours were worked, was raised by managers with Ms Kelly in the weeks prior to her injury, around which there was a significant discussion and renegotiation of the future acceptable parameters'.
(i)'Overtime offers were paused between April/May 2023 and mid-August 2023. Offers since then have generally been no more than weekly, and on occasions cancelled with short notice.'
(j)There is 'no information available about the potential for further offers of overtime that may match Ms Kelly's skill set …'
(k)Ms Kelly's part-time hours were due for review. She had also been noted to be working a high number of overtime hours and managers were advised to ensure, for all staff working overtime, that overtime decisions adhered to the relevant overtime guidelines, including safe working practices and risk management of issues such as fatigue.'
(l)On Monday 15 May 2023 she commenced 33.17 hours per week 'as a 3 month trial, planned to end 06.08.23'.
(m)'The prorated maximum total work hours, inclusive of any overtime, per week, for Ms Kelly given her current part-time hours of 33.17 … would be 49.5 hours per week.'
An attachment was provided to the response that came from Ms Kelly and was an email 'Summary of Discussion' dated 5 May 2023 that proposed a three-month trial of hours involving an increase of three hours per week overall and a summary of a discussion sometime on or about 4 May 2023.[13]
[13] T23, 124-125.
Another attachment to the response was an email from the Payroll Services area of Services Australia responsible for Ms Kelly's payroll calculations that stated: 'Payroll Services were advised that overtime ceased in [Ms Kelly's] business area early May 2023, for this reason Payroll Services haven't included overtime in the NWE. Upon further investigations performed today, overtime ceased on 4 June 2023. This does leave the period of 29/05/2023 to 04/06/2023 where an overtime allowance could potentially [be] applied to [Ms Kelly's] NWE'. The following figures were provided:
(n)For the 6-week period from 11 April 2023 to 23 May 2023, Ms Kelly worked an average of 8.4583 hours of overtime and total normal weekly hours of 45.9583.
(o)For the 12-week period from 28 February 2023 to 23 May 2023, she worked an average of 4.6458 overtime hours and total normal weekly hours of 52.1458.
(p)In the 12-month (slightly more than 52 weeks) period from 23 May 2022 to 23 May 2023, Ms Kelly worked an average of 12.5112 hours of overtime.[14]
[14] The email appearing at T23, 134 contains a very obvious typographical error stating 897.6815, which is the actual dollar value of 12.5112 hours overtime and has been transposed from the table above.
A spreadsheet table recording 'OT' of overtime for days from 10 April 2022 to 23 May 2023 showing varying amounts of overtime duration on about 130 days in that period was attached to an email answering an enquiry about Ms Kelly and was referred to as 'Att D Individual OT dates and hours 10.04.22 to 23.05.23.'[15]
[15] T23, 138-140.
A further email entitled 'Overtime Offers after DOI' dated 14 November 2023 identifies those overtime calls in the period August 2023 up to 18 November 2023, a period of three months, with 11 overtime calls, without any duration of each call, save for a note regarding general rules that shifts commence between 7.30am and 8.45am and are for 4, 5, 7.5 or 8 hours paid duration only.'[16]
[16] T23, 167. A later document T23, 177 clarifies that those hours apply to ‘Saturday Non-Continuous overtime shifts.’
An email from a Payroll Officer in the Services Australia 'Payroll and Corporate Operations Branch' dated 29 November 2023 explained:[17]
(q)Ms Kelly's normal weekly earnings prior to her injury were based on 33.17 hours per week.
(r)A conflict was created from calculations used 'within both the NWE/NWH form and the CTOW form'.
(s)The 'NWE/NWH form' rounds up to 33.2 'once the cursor is removed’ but the 'CTOW spreadsheet' rounds down when performing the calculations (to 33.10 hours).
[17] T25, 193-194.
By letter date 30 November 2023, Allianz recommended to the Comcare delegate at Services Australia that the primary decision calculating normal weekly hours at 33.10 and normal weekly earnings at $1,335.02 be affirmed.[18]
[18] T26, 196.
The reviewable decision of 30 November 2023 adopted the NWE figure of $1,335.02 per week for normal weekly hours of 33.10 'and not inclusive of overtime earnings.'[19]
[19] T26, 202.
Applicant's contentions
In her Statement of Facts, Issues and Contentions dated 12 July 2024 lodged with the Tribunal, Ms Kelly submits:
(t)The 'relevant period' for the calculation of her normal weekly earnings should be the 12-month period prior to the injury of 23 May 2023.
(u)In that period, she contends, she worked regular and required overtime.
(v)Excluding the period in that 12-month span for when she was on long service leave, the average weekly hours were 38.79 hours per week, inclusive of overtime.
Respondent's contentions
Comcare asserts that the reviewable decision is correct and ought to be affirmed, and contends:
(w)The assessed normal weekly earnings figure was taken for the period 15 May to 23 May 2023, a period less than the two-week period referred to in subsection 9(1) of the SRC Act as the 'relevant period' for the purposes of section 8 of the SRC Act.
(x)That period more fairly reflects her pre-injury normal weekly hours exclusive of overtime. Her 'base hours' were 30 hours and 40 minutes per week up to 14 May 2023 when she negotiated an increase in hours, taking her to 33 hours and 10 minutes. This represents an increase of two and a half hours over the base hours she was working at the time she was injured.
(y)Those hours commenced on 15 May 2023 and Comcare says this fairly represents her hours and earnings 'within the 2-week relevant period' provided for by subsection 9(1) and 'modified by subsection 9(2) of the SRC Act to disregard a period before the Applicant increased her work hours'.
(z)The 'last overtime shift for Services Australia Operational Planning Social Security and Welfare Branch personnel was 2 May 2023' and this was outside the 'relevant period'. Further, the last overtime worked by Ms Kelly before her injury was 30 April 2023.
(aa)The 'relevant period' should be calculated from a 'date of injury' of 24 May 2023 because:
(i)The injury, 'Post traumatic stress disorder' is an 'ailment' and therefore, if compensable, it is a 'disease' for the purposes of the definition of injury in subsection 5(1) of the SRC Act.
(ii)The 'date of injury' in relation to injuries that are compensable diseases is the earliest of either date of first medical treatment, date of impairment or date of first incapacity.
(iii)Ms Kelly first lost wages on 24 May 2023, the day following the witnessing of the assault.
(bb)Despite Ms Kelly's request for reconsideration of the determination of her entitlements pursuant to section 19 of the SRC Act calculating amounts of compensation to be paid from week to week, review of those determinations was 'not required'.[20]
[20] Respondent Statement of Facts, Issues and Contentions, 8 August 2024 [11].
The legislative scheme
The SRC Act is the successor to previous workers' compensation legislation in the Commonwealth[21] and owes its origins, like various similar schemes in the States, to the developments in English law in the late nineteenth and early twentieth centuries regarding the restriction of common law liability of employers for the negligent infliction of death and injury upon their employees. The existing defences to the employee's common law actions, based on doctrines that imputed upon the employee an 'assumption of risk', 'common employment’[22] or 'accident' (understood as a denial of negligence), led the English Parliament to introduce legislation to provide for limited compensation for employees for personal injury by accident arising out of and in the course of employment.[23] It was noted in an early High Court of Australia case that this new statutory insurance scheme eliminated wrongdoing as a basis for claim but 'did not throw the entire burden on the employer. That burden, by reason of the limitation of compensation, is shared by the employer and the workman, as co-operators in their common enterprise.'[24] As noted by the authors of one learned text, 'the worker contributes to the "common cause" by accepting amounts less than he would get by way of damages'.[25]
[21] Commonwealth Workmen’s Compensation Act 1912 (the 1912 Act); Commonwealth Employees’ Compensation Act 1930 (the 1930 Act) and Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act).
[22] That is, workers were implicitly understood to have undertaken the risk of being injured by one or more co-workers, no matter how negligent, with whom they were in ‘common employment’ without recourse to damages from the employer who engaged those co-workers.
[23] Starting in a quite limited range of employment in Workmen’s Compensation Act 1897 (UK) followed by the succeeding Acts of 1906 and 1925.
[24] McGuire v Union Steamship Co. of New Zealand (1920) 27 CLR 570, 583, Isaacs and Rich JJ.
[25] Hill E.F. and Bingeman J.B., Principles of the Law of Workers’ Compensation, particularly in Victoria (Law Book Company, Sydney, 1981) at 2.
It has always been accepted that the workers’ compensation statutes were remedial in nature, which did not permit a narrow construction limiting the nature of the remedy.[26] The object of any workers’ compensation statute, in the words of Jordan CJ, 'is to benefit the community by preventing workers and their dependents, who constitute the great majority of the community, from suffering destitution through the breadwinner becoming incapacitated for work. The means adopted to achieve this object are to throw the whole of the burden of the relief upon the employers.' His Honour went on to note the 'tendency of recent authorities has been to uphold the claims for workers to the fullest limits that the language of the Acts permit.'[27]
[26] McGuire v Union Steamship Co. of New Zealand (1920) 27 CLR 570, 584, Isaacs and Rich JJ; McDermott v Owners of SS Tintoretto [1911] AC 35; Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328, 335.
[27] Salisbury v Australian Iron and Steel (1943) 44 SR (NSW) 157, 160-161, Jordan CJ. The case arose under the Workers’ Compensation Act, 1926 (NSW).
The liberality of the approach to the interpretation of a remedial statute in favour of the employee is nonetheless controlled by the inherent limits to the nature of workers’ compensation benefits, particularly those provisions for the payment of weekly compensation for incapacity for work. One of the more respected judicial reflections on the statutory scheme for the calculations of weekly compensation noted that the underlying policy of the detailed formula in section 19 is that 'an injured employee should not be worse off during the period of incapacity as a result of injury. However, it follows conversely that the injured employee should not be better off.'[28]
[28] Bortolazzo v Comcare [1997] FCA 515; (1997) 75 FCR 385, 388, Heerey J. The case was not concerned with determining pre-injury earnings but the effect of the withdrawal of all overtime subsequent to the injury and its effect on weekly payments, pursuant to subsection 8(10) of the SRC Act, on an employee whose normal weekly earnings were calculated in accordance with both subsections 8(1) and 8(2) of the SRC Act.
Under the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee 'if the injury results in death, incapacity for work, or impairment.'[29] An employee 'who is incapacitated for work as a result of an injury' is primarily entitled to weekly compensation payments calculated in accordance with section 19 of the SRC Act, which establishes a formula for monetary compensation by the calculation of the difference between 'normal weekly earnings' and the amount per week, if any, that the employee earns, or is 'able to earn' in suitable employment. However, there are some limitations on that arrangement to provide for reduction of that amount calculated after the period of 'maximum rate compensation week' by reference to an 'adjustment percentage'.[30] There is a ceiling on the maximum rate of compensation,[31] limitation to compensation following the offer of suitable employment that is not taken up or continued with and other similar situations.[32] Adjustments are also made where the employee retires and receives superannuation[33] or is maintained in a hospital.[34]
[29] Subsection 14(1) of the SRC Act, regarded as that principal entitling provision upon which all other entitlements depend, save for compensation for medical treatment (see subsection 16(2) of the SRC Act).
[30] A ‘maximum rate compensation week’ is defined in subsection 19(2A) as a week: (a) where incapacity prevents an employee working ‘the employee’s normal weekly hours because the employee is unable to work or unable to work at the level at which the employee worked before the injury’; and (b) the total number of hours the employee is prevented working ‘in that week and in all previous weeks, if any, to which paragraph (a) applies, does not exceed 45 times the employee’s normal weekly hours.’
The ‘adjustment percentage’ is defined in subsection 19(3) of the SRC Act as that percentage corresponding to the number of hours the employee is employed, being: (a) 75%, if not employed, (b) 80%, if employed for 25% or less of normal weekly hours; (c) 85%; if employed more than 25% but not more than 50% of normal weekly hours; (d) 90%, if employed more than 50% but not more than 75% of normal weekly hours; (e) 95%, if employed more than 75% but less than 100% of normal weekly hours; (f) 100%, if employed for 100% of normal weekly hours.
[31] Subsection 19(5) of the SRC Act.
[32] Subsection 19(4) of the SRC Act.
[33] Sections 20, 21, 21A of the SRC Act.
[34] Section 22 of the SRC Act.
A key feature of the compensation system is that it is created by statute and is fundamentally administrative in nature. The common law provides a single payment of damages as a 'once and for all' settlement of the plaintiff's rights following the negligent infliction of injury causing loss. Hence, the damages are typically for past and future loss. Such future loss may provide for the expectation of rising income. However, weekly payments for lost income pursuant to a statutory workers’ compensation scheme is tied to the continuing experience of lost income from week to week. No single 'once and for all' payment is provided for in the scheme. There may be good evidence of an employee's likely future doubling or even re-doubling of income but for the experience of injury, but the only adjustments that can be made to the 'normal weekly earnings' is that for alteration of the hourly rate of pay for the classification of the employee at the date of injury by reason of changes to the award or other industrial instrument, actual promotion despite injury, and in the case of employees who cease employment while continuing to be incapacitated, through application of an indexation factor.[35]
[35] Subsections 8(6)-(9G) of the SRC Act.
It may seem trivial to point out that the earnings figures are assessed by reference to weeks. It is a reality that almost all Commonwealth employees are remunerated on a fortnightly basis.[36] However, the statutory scheme insists upon the application of the formulas set out by reference to a week, a period of seven consecutive days, so that the assessment of 'normal weekly earnings' and, say, the subtraction of earnings in suitable employment or the application of the limits on recovery by reason of subsection 8(10) of the SRC Act, must be done by reference to the facts and circumstances that apply within any particular week.
[36] 2017-2020 Agreement, B1.3 provides fortnightly payment of salary applying the formula: (Annual salary x 12) divided by 313.
This case is primarily focussed on the calculation of the normal weekly earnings figure for a maximum rate compensation week referred to in subsections 19(2) and (3) of the SRC Act. That entails an assessment to be made of both 'normal weekly earnings' and 'normal weekly hours' in section 8 of the SRC Act by reference to a defined 'relevant period'.[37] Whether the resulting calculation fairly represents the weekly rate at which Ms Kelly was being paid before the injury must then be assessed. If the initial assessment does not fairly represent pre-injury earnings, there must be an assessment of what other period does so reflect the proper earnings so as to permit the correct calculation of normal weekly earnings.
[37] Subsection 4(1) of the SRC Act [Definitions]:
‘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).’
Questions posed on review
Questions raised by this application are:
(iv)What is the date of injury?
(v)What are the 'normal weekly earnings' pursuant to section 8 when calculated by reference to the 'relevant period' specified in subsection 9(1) of the SRC Act?
(vi)Do the 'normal weekly earnings' so assessed fail to fairly represent the employee's earnings before injury by reason of the shortness of the period specified in subsection 9(1) of the SRC?
(vii)If 'yes' to the previous question and applying the analysis required by subsection 8(5) of the SRC Act, what other period would 'fairly represent the weekly rate at which the employee was … paid' before the date of the injury (the 'other period')?
(viii)In the other period, was the employee required to work overtime on a regular basis?
(ix)What is to be considered in calculating normal weekly earnings in the other period?
The normal weekly earnings calculated by reference to the 'relevant period'
The calculation of normal weekly earnings pursuant to subsections 8(1) and 8(2) requires an assessment of that amount by reference to the 'relevant period' referred to in subsection 9(1) of the SRC Act, being the 'latest period of 2 weeks before the date of injury during which the employee was continuously employed by the Commonwealth'. There are calculations to be performed in respect of the period in two steps, depending on whether overtime was worked:
(cc)Where there is no requirement to work overtime, the formula in subsection 8(1) takes the 'average number of hours worked in each week by the employee in his or her employment during the relevant period', multiplied by the 'employee's average hourly ordinary time rate of pay' and added to that result 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'.
(dd)Where the employee 'is required to work overtime on a regular basis,' subsection 8(2) of the SRC Act provides that 'an additional amount' must be added by calculating the 'average of the hours of overtime' in the relevant period multiplied by the 'average hourly overtime rate of pay during the period'.
At the outset, it is common ground that there are no allowances that need to be considered in the present case.
The calculations referred to above in relation to the relevant period referred to in subsection 9(1) of the SRC Act obviously precedes any consideration of whether the amount fairly represents the weekly rate at which the employee was paid prior to injury.
Because the relevant period referred to in subsection 9(1) of the SRC Act is 'the latest period of 2 weeks before the date of the injury' that date ought to be considered. The Respondent accepted the claim as an 'ailment' to which Ms Kelly's employment contributed to in a significant degree and is hence a 'disease' for the purposes of paragraph 5A(1)(a) of the definition of injury. The Respondent applied the formula in subsection 7(4) of the SRC Act, which relates solely to disease, to fix the date of injury by reference to the first date of lost income, 24 May 2023, the day following the traumatic events. While the Respondent's decision maker assumed that no overtime was worked in the two weeks prior to that date, the corrected record shows that there was overtime paid on 23 May 2023 while Ms Kelly was either assisting enquiries or comforting co-workers after her normal spread of hours. That fact raises the question of whether the overtime ought to be compensated.
That question need not arise in one of two ways:
(ee)If the injury sustained is an injury in the primary sense, that is an 'injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment' as defined in paragraph 5A(1)(b) of the SRC Act, then it was sustained at 1.20pm on 23 May 2023 and therefore pre-dated the overtime paid for the hours after that event and hence, need not be considered for compensation calculation purposes.
(ff)If the injury was truly a 'disease' with a date of injury being 24 May 2023, as contended by the Respondent, then the 23 May 2023 overtime might be disregarded if Ms Kelly was not required to work overtime on a regular basis as provided for by subsection 8(2) of the SRC Act.
The evidence shows that the injury suffered on 23 May 2023 was a traumatic mental injury sustained when Ms Kelly perceived a life-threatening situation because her Team Leader lay bleeding on the floor, having been stabbed by an aggressive customer who had earlier that day been excluded from the Airport West service centre. While Comcare accepted the liability on the assumption that, as a psychological condition it was an 'ailment', this particular mental condition was an injury 'in the primary sense'. The correct question to ask, is 'does the evidence demonstrate the existence of a physical or mental "injury" (in the primary sense of that word)?' as stated by the High Court majority in Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468[38]. The Court continued, 'Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state.' The footnote to the paragraph of the authorised report went on to cite the High Court's earlier decision in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286,[39] and continued: "Or, in the case of mental injury, a psychiatric disorder".
[38] [2016] HCA 19; (2016) 257 CLR 468 at 480-482 [44], [45], and [52]. French CJ, Kiefel, Nettle and Gordon JJ.
[39] (2000) 200 CLR 286 at 300 [39], and at 298 [35].
Post Traumatic Stress Disorder (PTSD) has long been accepted as injury in the primary sense.[40]
[40] As early as 1910, under the earlier Workmen’s Compensation Act 1905 (UK) in Yates v South Kirkby Collieries [1910] 2 KB 538, 3 BWCC 418, it was accepted that ‘nervous shock’, the earlier name for post-traumatic stress disorder, could be sustained by witnessing the injury of another. Cozens-Hardy LJ stated: "When a man in the course of his employment sustains a nervous shock producing physiological injury, not a mere emotional impulse, he meets with an accident arising out of and in the course of his employment. It is something unexpected, no doubt, in this sense, that I do not suppose the applicant thought for a moment, when he was doing what was plainly his duty in going to the rescue of his fellow workman, it would have this physiological effect on his system, but it had that effect. There is no malingering; it is a perfectly genuine case”. Yates was a coal miner who had to attend his co-worker in a mine cave-in and observed his workmates head injuries and bleeding from the head, ears and eyes. Mr Yates carried the injured miner away from the scene but he died shortly afterwards. The authority of Yates was adopted in the NSW Court of Appeal in Anderson Meat Packing Co Pty Ltd v Giacomantonio [1973] 47 WCR (NSW) and referred to in Coal Operations Australia Pty Ltd v Pattie [1999] NSWCC 34; (1999) 18 NSWCCR 273 (22 July 1999). In Rees v Military Rehabilitation and Compensation Commission [2005] AATA 690, the Tribunal (Ms Robin Hunt, Dr Thorpe) set aside the decision of the MRCC and awarded compensation pursuant to section 14 of the SRC Act for PTSD suffered by a former member who sustained the injury on 19 February 1971 in a training exercise prior to deployment to Vietnam. He was with other recruits and required to engage in a river crossing (actually, Manly Dam). In performing the exercise, one of his friends was drowned. He did not deploy to Vietnam owing to the decision in April 1971 to withdraw all troops from that conflict. He suffered various symptoms of his disorder but was not diagnosed until December 2000. The Tribunal found that Mr Rees sustained personal injury by accident arising out of or in the course of Commonwealth employment as provided by subsection 9(1) of the 1930 Act, a precondition required by the Transitional provisions in the SRC Act for the claim made after 1988.
On the evidence before me, Ms Kelly's PTSD is an injury in the primary sense, being a mental injury arising out of or in the course of employment. It was sustained at 1.20pm on 23 May 2023 and her incapacity for work was established at that time, despite her receipt of pay. That is because the description of her activities and reason for her continued presence at the workplace was not for the completion of her ordinary work duties. She was unable to continue to perform those duties and has not done so since that time.
Even if the injury is viewed through the prism of 'disease', the onset of impairment and incapacitation for work was established on 23 May 2023. The provision for the 'date of injury' referring to 'disease' in subsection 7(4) of the SRC Act fixes that date when: '(a) the employee first sought medical treatment for the disease, or aggravation; or (b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee; whichever happens first'. Ms Kelly explained in her claim that 'Since the incident I feel traumatised and broken, I'm struggling to attend to my children, my husband and my usual day to day living chores. I find it difficult to go anywhere and if I do I either have my husband with me or one of my children, I have this sense of fear on a daily basis, I keep relieving this traumatic incident'. Those symptoms reveal damage or malfunction of part of the body's mental function and hence established the date of injury as 23 May 2023.[41]
[41] Section 4(1) of the SRC Act [Definitions]: ‘impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.’
As to the nature of the overtime worked that date, I find that the circumstances were so extraordinary that the payment for that overtime was not for work that could be considered 'regular'. There was no overtime call made by the employer on that date and the payment made, while correct, is not a payment for regular overtime contemplated by subsection 8(2) of the SRC Act. The Respondent and Ms Kelly agree on this approach.
Comcare's decision noted that in the beginning of the two-week period, the ordinary spread of hours worked were based on Ms Kelly's then agreed hours of 30 hours and 40 minutes (or 30.67 hours expressed as a decimal). That was altered from 15 May 2023 by agreement to 33 hours, 10 minutes (33.17 decimal hours). Comcare adopted the latter figure and applied it to the whole two-week period. The Respondent submits that this is provided for by subsection 9(2) of the SRC Act, which states:
(2) Subject to subsection (3), if, during the period referred to in subsection (1), the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth or a licensed corporation was varied as a result of:
(a) the operation of a law of the Commonwealth or of a State or Territory; or
(b) the making, alteration or operation of an award, order, determination or industrial agreement, or the doing of any other act or thing, under such a law;
any part of that period that occurred before the variation, or last variation, took place shall be disregarded for the purposes of calculating the relevant period.
Comcare submits that its approach is in conformity with paragraph 9(2)(b) insofar as the agreement struck was 'the doing of any other act or thing, under' an industrial agreement, being the 2017-2020 Agreement exhibited. Having regard to that Agreement, I accept that the application of subsection 9(2) of the SRC Act to apply the hours agreed from 15 May 2023 up to 23 May 2023 was correct.
Further, there is no overtime worked in that 2-week period. Does the relevant period fairly represent the weekly rate of pay before the injury?
Ms Kelly submits, and I accept, that the normal weekly hours of 33.17 per week paid at the ordinary rate pursuant to subsection 8(1) of the SRC Act do not really represent her true earnings before the injury.
In support of her contention, Ms Kelly's Updated Statement of Facts, Issues and Contentions has a table of hours worked each fortnight ending 25 May 2022 up to 24 May 2023, marked 'Annexure A'. The table sets out the ordinary hours, the overtime hours paid at overtime rates, the total of those hours for each fortnightly pay period and the calculated weekly average hours. According to the table, Ms Kelly averaged 38.07 hours each week for the period, inclusive of ordinary hours and overtime hours. The document was the subject of submissions from both parties.
It is apparent from reading the table in 'Annexure A' that while her 'base hours' were then set at 30 hours, 40 minutes (30.67 hours decimal) she did not work all those base hours before working overtime. That may simply indicate that she was required to work outside the normal spread of hours during her normal pattern of daily hours or on weekends, regardless of whether she had worked the full pattern of ordinary hours. There was no allegation or evidence that such a pattern of work was an impermissible arrangement. She submits that subsection 8(5) of the SRC Act should apply in her case. That provision reads:
(5) Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.
The Respondent's case is that the calculation of normal weekly earnings in the relevant period conforms to the statutory scheme. Overtime ceased being worked from the beginning of May 2023 and was not anticipated to resume until August 2023. The anticipated future need for overtime, it was said, would be at a reduced level when compared to the hours worked during 2022-2023.
The question posed is whether the calculation of earnings in the relevant period is determined by reference to the injured employee. Fairness to the employee, not the employer or Comcare, is the construction to be favoured in respect of remedial legislation and has been adopted by previous Tribunals when considering the expression 'fairly represent' in subsection 8(5) of the SRC Act. That conforms to an orthodox view of the beneficial construction of any ambiguous term in progressive legislation of this kind.[42]
[42] See Bradford and Comcare [1994] AATA 285; (1994) 37 ALD 187, 193, Senior Member Ettinger, Members Attwood and Sutherland; followed in Mary Gwenda Zegura and Comcare [1998] AATA 1999 [27], Senior Member Burton.
The allegation of unfairness must have an evidentiary basis to sustain consideration of another period. That requires an analysis of the actual hours of work by Ms Kelly over a longer period prior to the injury to determine whether the two week 'relevant period' is too short to fairly represent the pre-injury earnings.
An analysis of the record of Ms Kelly's overtime following 10 April 2022, set out in the employer's records submitted in the Tribunal documents, reveals:
(gg)In the period prior to the injury, she answered 137 overtime calls, working overtime anywhere from 3 hours and up to 8 hours or more depending upon the day.[43] If the period following the return from long service leave on 21 July 2022 up to the date of injury was considered, to remove the periods when not working, there were 114 overtime calls answered over a 9-month period.
[43] T23, 138-140.
(hh)Those overtime calls were distributed throughout the months on a regular, though not symmetrical, pattern. Some weeks show that overtime was worked almost every day, for example, the work week starting Monday, 3 October 2022, Ms Kelly worked overtime on the Tuesday, Wednesday, Thursday, as well as Saturday and Sunday. Other weeks were not so demanding.
(ii)Overall, the distribution of overtime calls from 10 April 2022 set out monthly shows this degree of regularity:
(x)April 2022 - 13 calls of varying duration;
(xi)May 2022 - 8 calls;
(xii)June 2022 - 2 calls;
(xiii)July 2022 - 3 calls;
(xiv)August 2022 - 16 calls;
(xv)September 2022 - 15 calls;
(xvi)October 2022 - 12 calls;
(xvii)November 2022 - 10 calls;
(xviii)December 2022 - 8 calls;
(xix)January 2023 - 12 calls;
(xx)February 2023 - 12 calls;
(xxi)March 2023 - 16 calls;
(xxii)April 2023 - 10 calls.
There is a clear degree of regularity throughout the year save for the period of mid-June to mid-July 2022, which is explained by the fact that Ms Kelly did not work due to the taking of long service leave, returning on 21 July 2022.
Taking into consideration the nature and scope of Ms Kelly's work, I find that the 'relevant period', when only ordinary hours of 33.17 per week were expected, was too short to be representative of Ms Kelly's normal weekly earnings. The cessation of overtime in early May 2023, shortly before the injury, was merely an interruption to Services Australia's reliance upon the device of overtime to meet its program targets, not a permanent abandonment of overtime. The facts and circumstances of this case show that Ms Kelly worked as a 'front of house' Service Officer in a continuously busy Centrelink office, handling a variety of government programs and benefits. Such offices are not places of tranquil paper shuffling during the normal spread of agreed working hours. The very facts of the circumstances of injury discount such a conclusion. Overtime was a routine and ever-present demand upon the working lives of the officers who had the skills to do this job, which they were bound to undertake lest Human Services not meet its program goals.
I conclude that the normal weekly hours calculated in accordance with subsection 8(1) by reference to the two-week 'relevant period' does not fairly represent the hours of work by Ms Kelly and consequently, some other period must be considered.
The preferred period
Ms Kelly submitted that the preferred period over which the normal weekly earnings were to be calculated was the period from Ms Kelly's return from long service leave on and from 21 July 2022 up to the date of injury on 23 May 2023. That period was continuous and avoided the problem of dealing with the approximately 4-week period of long service leave.
The Respondent submitted that should an alternative period be used to its preferred relevant period as identified in subsections 9(1) and (2) of the SRC Act, the whole of the 12 months, including the period of long service leave, should represent a fair outcome, since all employees will take leave and don't work overtime when on leave and so ought not to have the unfair benefit of a continual period of overtime.
I was referred to several cases dealing with such issues during the parties' submissions. I will refer only to the ones relevant to the outcome of this review.
In the first place, it is well accepted that normal weekly earnings are to be construed as 'normal while working'. In Gray v Comcare [2004] FCA 1037; (2004) 139 FCR 41, Gyles J stated: [44]
In my opinion, the search for 'normal weekly earnings' in this statutory context plainly means 'normal whilst working'. An employee does not work whilst absent on sick leave. During that period, an employee neither earns nor receives payment for work. Even if sick pay were received during that period, that would not be correctly described as earnings in the relevant sense. That is even clearer where no remuneration at all is received for the relevant period of sick leave.
[44] [2004] FCA 1037; (2004) 139 FCR 41, 48, [14]. The reasoning in Gray v Comcare was adopted and applied in respect to annual and other leave periods in the Tribunal decision of Pike and Linfox Australia Pty Ltd [2011] AATA 378; (2011) 123 ALD 575, Senior Member Bean.
Applying that approach, the periods of long service leave when Ms Kelly was not working ought to be excluded from consideration of the normal weekly earnings should the overall 12-month period be adopted.
However, it was submitted that disregarding a period where there were no earnings was only authorised when considering such non-earnings periods in the 'relevant period' because of the operation of subsection 9(4) of the SRC Act. I was referred to a decision in Comcare v Nicolas [2014] FCAFC 122; (2014) 225 FCR 369 (Nicolas) where the Full Court stated:[45]
26. Section 9(4) is directed to two different circumstances. It should be noted, first, that the possibilities to which s 9(4) is directed concern only "the period calculated under the preceding subsections". That is to say, the period of two weeks directed by s 9(1) or the lesser period arising from the operation of s 9(2) (where it applies - cf s 9(3)).
27. Accordingly, s 9(4) allows periods of reduced earnings, or no earnings, during the two week (or lesser) period to be disregarded.
28. If, nevertheless, earnings calculated by reference to the remaining parts of the two-week period are fairly representative of the weekly rate at which the employee was being paid before the injury, the calculation proceeds in accordance with s 8(1) or s 8(2). If the period is too short, so that the normal weekly earnings calculated in that way would not fairly represent the weekly rate at which the employee was being paid, then s 8(5) remains available to permit the selection of some other period. It is important to emphasise, however, that the judgment to be made under s 9(4) is to be made before, not after, the engagement of s 8(5) because it must be made only in relation to the period directed by s 9, and not some alternative period selected under s 8(5).
29. What period may be selected under s 8(5)? It must obviously be one which meets the purpose of the calculation in which it will be used. That is to say, it must yield a fairly representative average of weekly working hours pre-injury and a fairly representative ordinary time rate of pay pre-injury so that a reliable calculation of normal weekly earnings pre-injury might be made for the purpose of s 19.
30. Subject to that overriding requirement (and to the proper engagement of s 8(5)) there does not appear to be any reason why the particular period chosen must terminate at the date of injury, although that would obviously be a possibility which the decision-maker might adopt.
[45] [2014] FCAFC 122; (2014) 225 FCR 369, 373-374. [26]-[30], Edmonds, Buchanan and Flick JJ.
The Court's reasoning at [28] is not to compel the inclusion of periods when not working when considering the period, on engagement with subsection 8(5) of the SRC Act, since the decision goes on to say the period must yield 'fairly representative average weekly working hours pre-injury …'. In Ms Kelly's case those are periods when she was regularly being called upon, and agreeing to, work overtime.
The period following 21 July 2022 all the way up to 23 May 2023 avoids any periods when not working and yields 'a fairly representative ordinary time rate of pay pre-injury so that a reliable calculation of normal weekly earnings pre-injury might be made for the purpose of s 19' of the SRC Act as urged by the Full Court in Nicolas.
That period encompasses the 114 overtime calls answered by Ms Kelly. The Respondent in this case conceded that the overtime worked in the 12-month period being reviewed was both 'required' and 'regular.'
On examination of the provisions of the 2017-2020 Agreement, I accept that the concession was very properly made, considering:
(jj)The employee can only work overtime with the prior approval of the Secretary.[46]
(kk)An employee may be 'requested to work overtime' and 'where operational requirements dictate, the Secretary may direct an employee to work a reasonable amount of overtime on any day.' [47]
(ll)Overtime rates were payable where 'an employee is requested or directed to work hours in addition to their pattern of ordinary hours, their regular hours agreement, or rostered hours of duty, and the employee works those hours.'[48]
(mm)An employee may agree with the Secretary to exchange overtime payment for time off in lieu calculated at the relevant overtime rate.[49] The Respondent advised that Ms Kelly did not negotiate any agreement for time off in lieu of payment during the period under consideration.
[46] 2017-2020 Agreement, F12.5.
[47] 2017-2020 Agreement, F12.3.
[48] 2017-2020 Agreement, F12.2.
[49] 2017-2020 Agreement, F12.13.
Further, while there was no evidence that the overtime work in the period under consideration was performed at the 'direction' of the Secretary, the analysis of whether overtime was 'required', as that word is used in relation to overtime in subsection 8(2) of the SRC Act, considers the nature and scope of the work required to be undertaken by the employee. In that context, the word 'required' includes situations where the employee is placed under obligation by the employer, even by a separate agreement to work overtime that may not be legally enforceable, but which constitutes an authority to work the additional hours.[50] The offer of overtime done with the approval of the Secretary or manager authorised by the Secretary followed by its acceptance by the employee constitutes such an agreement that conforms with a requirement to work that overtime.
[50] Telstra Corporation Ltd v Peisley [2006] FCAFC 79; 151 FCR 275, [34]-36], Wilcox, Conti JJ; followed in Barrington and Comcare [2015] AATA 29; (2015) 146 ALD 444, 449-450 [31]-[33], Tamberlin DP.
Decision
The findings about the other period to be applied by reason of subsection 8(5) to the calculations to be made pursuant to subsections 8(1) and (2) of the SRC Act compel the following decision pursuant to section 105 of the Administrative Review Tribunal Act 2024:
1. The reviewable decision made by Comcare dated 30 November 2023 is set aside.
2. In substitution for the decision set aside the Tribunal decides:
a. The normal weekly earnings calculated by the 'relevant period' referred to in subsection 9(1) of the SRC Act yields a result that does not fairly represent the weekly earnings the employee was being paid in respect of her employment before the injury.
b. The other period for the calculation of normal weekly earnings pursuant to subsection 8(5) of the SRC Act is the period commencing 21 July 2022 and terminating on the day of injury on 23 May 2023.
c. All the overtime worked by Ms Kelly in that other period from 21 July 2022 to 23 May 2023 was regular and required.
d. There were no allowances paid to Ms Kelly in the other period from 21 July 2022 to 23 May 2023 relevant to the calculation of normal weekly earnings.
e. The Tribunal remits the matter to the Respondent to calculate normal weekly earnings pursuant to subsection 8(1) plus the additional amount for regular overtime pursuant to subsection 8(2) of the SRC Act in accordance with the findings of fact made in this decision.
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