Kelly and Telstra Corporation Limited
[2004] AATA 967
•16 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 967
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/645
And No N2004/829
GENERAL ADMINISTRATIVE DIVISION ) Re Mr John Kelly Applicant
And
Telstra Corporation Limited
Respondent
DECISION
Tribunal Ms N Isenberg, Member Date16 September 2004
PlaceSydney
Decision The decision under review in N2003/645, as varied in the course of the hearing, is affirmed. The decision under review in N2004/829, as varied in the course of the hearing, is affirmed. Both Matters are remitted to the Respondent to undertake calculation in accordance with the variations referred to in the decision. [SGD]Ms N Isenberg, Member
CATCHWORDS
WORKER’S COMPENSATION – lower back strain – normal weekly earnings – inclusion of overtime in normal weekly earnings – assessment of average overtime performed prior to injury - calculation of overtime at ordinary rates – consistency of overtime performed by employee – fair representation of normal weekly earnings – whether overtime is required by employer.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – ss 4,8,14, 16, 19, 24, 27, 28(4)
CASE LAW
Re Zarb and Comcare (1997) 48 ALD 718
Webster v Hobart City Council [2003] TASSC 129
Re Brede and Department of Defence (1994) 33 ALD 669
Morrow and Telstra Corporation Limited [2003] AATA 1199
Smith and Telstra Corporation Limited [2003] AATA 1205
Slater and Telstra Corporation Limited [2002] AATA 597
REASONS FOR DECISION
14 September 2004
Ms N Isenberg, Member
DECISIONS UNDER REVIEW
1. This is an application by Mr John Kelly (“the Applicant”) for review of two decisions made by Telstra Corporation Limited (“the Respondent”). The first reviewable decision dated 2 December 2003 concerns the calculation of overtime at ordinary rates. The relevant issue is whether this represents a fair representation of the Applicant’s Normal Weekly Earnings prior to his injury in accordance with the Safety Rehabilitation and Compensation Act 1988 (“the Act”). This reviewable decision is the subject of the Application for Review in N2003/645.
2. The second reviewable decision in N2004/829 dated 8 June 2004 concerns variations made by the Respondent to the calculation of the Applicant’s Normal Weekly Earnings whereby the Respondent ceased including overtime payments in the calculation of the Applicant’s Normal Weekly Earnings. The relevant issue is whether the assessment of the Applicant’s Normal Weekly Earnings on and from 6 February 2003 is correct and in accordance with the SRA Act.
LEGISLATION
3. The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988 (“the SRA Act”). The relevant sections are ss 4,8,14, 16, 19, 24, 27, 28(4)
BACKGROUND
4. The Applicant was born on 16 April 1959 and is currently employed by Telstra Corporation Limited as a Communications Officer Grade 5 (“CSO5”).
5. On 8 March 1992, the Applicant suffered an injury to his lower back while doing hard repetitive work using a jackhammer in the course of his employment with the Respondent.
6. The Respondent subsequently determined that the Applicant was entitled to compensation for “low back strain” and included a component of overtime in the calculation of his Normal Weekly Earnings (“NWE”).
7. By Determination dated 15 August 2002 it was determined that pursuant to s8 of the SRC Act, the Applicant’s NWE were assessed as at 20 December 2001 at $1,203.57 and that the Applicant was entitled to incapacity payments at this rate for the period 1 August 2002 to 14 August 2002 (T3).
8. By Determination dated 10 October 2002 the Applicant’s NWE were reassessed as at 26 September 2002 at $1,045.71. It was found that pursuant to s19(3) of the SRC Act the Applicant was entitled to 100% NWE and incapacity payments for the period 26 September 2002 to 9 October 2002. It was noted in this Determination that on 26 September 2002 the Applicant’s team leader provided information which indicated that overtime undertaken by the Applicant was not compulsory although the Applicant was making himself available to do overtime prior to his injury. It was noted that the Applicant undertook overtime on a voluntary basis and it was well within his power to refuse to undertake such overtime if he wished. The overtime component of the Applicant’s NWE was amended to 3.325 hours per week. The Claims Officer found that the rate of the Applicant’s NWE in accordance with s8 of the SRC Act should be calculated at $1,045.71 (T13).
9. By email dated 20 November 2002 the Applicant requested a reconsideration of the determination dated 10 October 2002. The Applicant noted that the overtime component of his NWE was calculated at the ordinary rate as opposed to being calculated at an overtime rate. (T16)
10. By Reviewable Decision dated 9 December 2002 the Determination dated 10 October 2002 was affirmed. (T20) It is this Reviewable Decision that is the subject of the Application for Review in N2003/645.
11. On 3 February 2003, Mr Craig Martin, Regional Business Manager, wrote to the Respondent. Mr Martin requested that the Applicant’s overtime payments cease on the basis that the Applicant’s position did not exist any more or, in the alternative, that overtime was rarely worked in his business environment. (T28)
12. On 17 March 2003 the GIO, on behalf of the Respondent, reduced the Applicant’s overtime component of his NWE to nil on the basis of the letter from Mr Martin dated 3 February 2003. (T29)
13. On 24 March 2003, the Applicant requested a reconsideration of the determination dated 17 March 2003. (T31) On 26 March 2003, the Applicant wrote to the Respondent with information supporting his request for reconsideration. The Applicant noted that he had never worked with Mr Martin and questioned how he was able to make comments on the overtime worked in his area. The Applicant further stated that he had been working in the area for 10 years during which overtime had been consistent (T30).
14. On 5 April 2003 an amended Determination was issued in response to the Applicant’s request of 24 March 2003 which determined that the Applicant’s NWE were assessed as at 6 February 2003 at $972.78 and that the Applicant was entitled to payment at this rate for the period 6 February 2003 to 26 March 2003.
15. On 17 April 2003, the Applicant, through his solicitors, lodged an Application for Review of the decision dated 9 December 2002; and an Application for Extension of Time for Lodging Application for Review of Decision. (T1) On 29 April 2003, the Respondent consented to the granting of an extension of time until 17 April 2003. (T39)
16. On 17 December 2003 the Applicant’s solicitors requested a reconsideration of the Determinations dated 7 March 2003 and 5 April 2003.
17. On 8 June 2004, the Respondent varied the determinations dated 17 March 2003, 28 March 2003 and 5 April 2003 and determined as follows:
·the Applicant’s NWE effective from 6 February 2003 is $1,016.10.
·the Applicant’s NWE effective from 21 May 2003 is $1,036.42.
·the Applicant’s NWE effective from 3 July 2003 is $1,057.14.
·the Applicant’s NWE effective from 1 January 2004 is $1,078.29.
The Respondent based its decision on the following:
·the Applicant was employed as a Communications Officer Grade 2 as at the date of his injury.
·the average number of overtime hours of CO2s in the Applicant’s pre-injury employment area during the 6 unbroken pay periods prior to 6 February 2003 was 2.77 hours per week.
·the overtime being worked by the Applicant at the date of injury was neither regular nor required.
18. On 5 July 2004, the Applicant, through his solicitors, lodged an Application for Review of the decision dated 8 June 2004. It is this decision that is the subject of the Application for Review in N2004/829.
ISSUES
19. The issue before the Tribunal in Application N2003/645 is whether assessment of the Applicant’s NWE pursuant to the SRC Act in respect of “lower back strain” sustained on 8 March 1992 is a fair representation of his normal earnings preceding the incident and currently in accordance with the provisions of the SRC Act. The issue before the Tribunal in N2004/829 is whether assessment of the Applicant’s NWE on and from 6 February 2003 is correct and in accordance with the provisions of the SRC Act.
APPEARANCES
20. A hearing was held before the Tribunal on 15 and 16 July 2004 at which the Applicant was represented by Ms L Walker of counsel, instructed by Ms R James of Slater and Gordon, solicitors. The Respondent was represented by Mr B Kelly of counsel, instructed by Ms T Payne of Sparke Helmore, solicitors.
EVIDENCE: DOCUMENTS
21. I had before me documents lodged pursuant to s37 of the Administrative Appeals Tribunals Act 1975 (“the T-documents”), which I took into evidence.
22. A number of documents were tendered by both parties.
EVIDENCE: WITNESSES
The following witnesses gave evidence and were cross-examined:
·The Applicant
·Mr Paul Mills :Senior Case Manager, GIO
·Mr Lawrence Bryant :Area Service Manager, Telstra
·Mr Peter Lennox :Activation Work Stream Manager, Telstra
Was Mr Kelly’s overtime “required”?
23. The Applicant said that the arrangement was that on a Tuesday or Wednesday the boss would ask them if they were interested in working weekend overtime and they would let him know if they were. The Applicant said he always made himself available but agreed that there were some people who only occasionally worked overtime.
24. Mr Bryant, who worked with the Applicant, said that staff elected whether to work weekend overtime. He said that the there were some people who always put “their hand up” and other people who hardly ever did.
25. The Applicant was asked if there ever any situation where he was told that he must attend to undertake overtime. He replied "not sternly told, but requested” (Transcript p16). In cross-examination the Applicant conceded that it was open to him to knock back overtime if it was offered. (Transcript p19)
26. Mr Bryant said that in the time he has worked with the Respondent there has not been a formal system in relation to overtime, only a voluntary system. While people may nominate for overtime not all will be required on a particular day and the type of skills required might determine those selected. (Transcript p49) He was asked if there is any pressure placed on people to actually work the overtime and he said that it is purely voluntary.
27. Mr Bryant said that for the purposes of an Industrial Relations Commission hearing the union had asked for an analysis of the amount of overtime. The analysis showed that some field-based staff might work a lot of overtime but one third of the workforce did about 90% of the overtime and the other two thirds accounted for the remaining 10%. This 10% included those people who never worked any overtime. (Transcript p52) On average the 130 staff worked about two hours per week. (Transcript p53)
28. Mr Bryant was asked what happens in the event that someone who has nominated to do overtime and has been offered overtime does not turn up, he said “they just don’t turn up”. He said that no disciplinary action ensued and that the work scheduled to be done that day was not done. Further, he said that it did not occur very often and usually somebody had a legitimate excuse such as being sick or having slept in. He said that if someone didn’t turn up “we wouldn’t really pursue it”. (Transcript p54) He said that because it was voluntary and he didn’t really have any power to force someone to come in. He said he would have been “disappointed” because customers would have been let down.
29. In his statement, the Applicant had said that the manager would approach them on Wednesday to work on the weekend if there was overtime available and that he would inform them that there was so much work to be done that it could only be achieved if overtime was worked. The Applicant said they were told that if they did not work overtime the next time they wanted to do overtime, it might not be offered. Mr Bryant however said that that was not his recollection of the circumstances. He said that if you wanted to work you did, and if you didn’t want to work, you didn’t. (Transcript p51)
30. Mr Mills said that it was his understanding that overtime is offered by the Respondent when there is a need for overtime to be carried out. (Transcript p43) He also said that he was able to ask his boss if you wanted to do overtime. In response to a question as to whether overtime would be made available if there was no requirement for it, he said that “different circumstances, different time. It was always a different answer.” (Transcript p44).
31. Mr Lennox said that if someone does nominate for overtime and is allocated overtime but does not turn up, the team leader will try to contact them to enquire if they were ill. However, “there wouldn’t be anything in terms of punishment or anything like that”. (Transcript p61) Even if someone just didn’t turn up he said that nothing would be done because the overtime is voluntary. “So because it is voluntary, there is no resource (sic) for us to take any action against them”. (Transcript page 62) He said that he probably wouldn’t like to offer that person the overtime again but given the circumstances it may be required that “we work them” if there was a need.
32. In an email (T10) to Chantelle McCarthy he wrote “the overtime is voluntary but Telstra expects that each person work a reasonable amount of overtime as required”.
33. The Applicant said that since the accident he always made himself available on public holidays.
Was Mr Kelly’s overtime “regular”?
34. The Applicant said that overtime was always available if you wanted it. (transcript p14) He said that prior to the accident he had just bought a house so was "pretty keen” to get up as many hours as he could. He said he would work “two Saturday’s out of three” and on each occasion he worked an 8 to 10 hour day.
35. Mr Bryant, gave evidence that in the year or so leading up to the Applicant’s injury he thought that the Applicant, worked overtime only one or two Saturdays a month and that the Applicant rarely worked back during the week, but the Applicant did not think Mr Bryant was correct. In Mr Bryant’s estimation the Applicant would stay back and complete the job if required.
36. The Applicant was shown the wage records in relation to the 12 weeks prior to the date of the injury. During that time he worked only an average of 2.19 hours overtime per week. He said this was because his wife had just had baby in the six weeks leading up to his return to work and he had taken two weeks leave and that this was a “very disruptive period”. He was asked in cross-examination about the wage records that indicated that in the 12 months prior to his injury he had worked overtime on only 15 occasions. In response he said that he had worked every time overtime had been made available.
37. In discussing the Applicant’s wage records for the 12 weeks prior to the injury in 1992 Mr Mills said that he did not consider the Applicant’s overtime to be regular because it had not been in every pay period. Transcript p41) In the 18 pay periods from July 1991 to the date of the injury in 1992 overtime was paid only in respect of 8 of them, and in the 12 weeks immediately before the accident overtime was paid in 3 out of 6 pay periods.
38. Mr Lennox gave evidence that there is a roster system whereby the eight activation centres nationally are allocated their first choice of any overtime offered. If that overtime is not filled by the centre then it might be put out to other centres. Not all nominations are accepted, especially if a person does not have the appropriate skills for the required job. He agreed that some people work more overtime that others and some people decline to work overtime when it is offered. (Transcript p61)
What was the appropriate level at which the Applicant’s NWE should have been assessed?
39. The Applicant gave evidence that he had commenced work with Telstra as a Communications Officer Grade 1 (“CO1”). He was promoted to CO2 after some period of time, but the work was essentially the same. He said that prior to the injury he did some extra training and that he was promoted to CO3 in about July 1991.
40. Mr Mills identified comparable employees, at the level of CFW4, on the basis that they were of the same classification to that which the Applicant would have been had he remained in the field. In selecting those employees Mr Mills had relied on those identified by Mr Bryant. He was not able to say whether those employees included ones who chose not to undertake overtime. He had specified to Mr Bryant that those employees be at the same level as the Applicant, that is a CFW4, and that they came within one of the geographical areas presently under Mr Bryant’s direction.
41. Mr Bryant said that he had been asked by Mr Mills to identify comparables and had come up with a list of the 11 people. He said that they were selected on the basis that they represented a sample of the CFW4s in the Newcastle area.
Period considered for comparable purposes
42. Mr Mills said when claims are managed for Telstra a period of 12 weeks is used rather than the two weeks required by the Act, so the claimant is not disadvantaged. (Transcript p29) Before doing so, there is no assessment of whether the two week period would result in some unfairness. (Transcript p35) He said that if the 12 week period wasn’t necessarily fair, some other period and not the 2 week period would be looked at instead. (Transcript p45)
SUBMISSION: THE APPLICANT
43. It was submitted on behalf of the Applicant that he was required to work overtime and regularly did so. That being so, any calculation of the Applicant's NWE should make provision for hours in excess of ordinary hours to be paid at the applicable overtime rate in accordance with s8(2).
44. The Applicant’s counsel invited my attention to the Telecom General Conditions of Employment Award 1989 and emails provided by the Respondent in the T Documents. The 2002-2005 Telstra Enterprise Agreement also provides that Telstra may require a full time employee to work reasonable overtime, adding:
“If you are a full time employee, and you are authorised to work overtime, you will be paid at the overtime rates prescribed in the relevant Award for overtime worked”.
Prior to the date of his injury, the Applicant was said to have regularly and routinely worked overtime.
45. The Respondent in the decisions under review did not accept, in light of the decision in Re Zarb and Comcare (1997) 48 ALD 718 that the overtime undertaken by the Applicant, prior to his injury, was “required”. The Applicant contends that this overtime was “required”, otherwise he would not have been paid for it (per 1989 Award).
46. It was submitted that the approach of Deputy President Burns in Zarb would have the anomalous result that overtime would almost never be characterised as required in the Commonwealth and licensed authority context, which would undermine the intention of the legislation, and thus cannot be a sustainable interpretation.
47. There is no logic, it was submitted, in overtime hours being included in a s8(1) calculation but being paid at ordinary rather than overtime rates. The approach taken in Webster v Hobart City Council [2003] TASSC 129, consistent with a reading of the relevant award in this instance, avoids that anomaly.
48. Although overtime was sought after, it did not change that fact that when a person accepted an arrangement to attend to perform overtime that overtime is “required”.
49. Further, she submitted, there is no other legal relationship between an employer and an employee that would allow an employer to “require” an employee to work.
50. While in Webster the council put out an overtime roster on a 6 monthly basis, the Respondent did likewise, albeit on a shorter time scale, namely from week to week. In Webster there was also evidence that workers could not be forced to work overtime, whereas, it was submitted that in the Respondent’s awards there is power to “force” a worker to work overtime.
51. That Mr Mils did not regard overtime as “regular” was unfair, it was submitted - regularity should not require absolute uniformity. A more appropriate test would have been to examine the whole year because of the “seasonal nature” of outdoor work. In any event, it was submitted, the records from July 1991 to March 1992 show a “very substantial degree of regularity”.
52. The purpose of s8 of the SRC Act is to provide a means of calculating NWE that fairly reflects the employee’s pre-injury wages including allowances, whilst making provision for the employee not to be better off than he would have been had he not been incapacitated.
53. Overtime is a regular and permanent aspect of employment with the Respondent in order for it to fulfil its functions. Overtime cannot be undertaken by the employee on his or her own whim but depends upon the stated requirement of the employer, which is then met by those employees willing to do so. The fact that the overtime is undertaken willingly by some makes it no less of a requirement.
54. Under the contract of employment, the Respondent can require its employees to work overtime. The fact that it seeks volunteers to fulfil overtime requirements does not derogate from this term of employment, which is evidenced by the fact that employees who elect to work overtime are paid for doing so and further are paid at an overtime rate. It is an express condition of the contract of employment that overtime is performed as required.
55. In Webster the Supreme Court of Tasmania was prepared to read into the contract of employment an express term that employees perform overtime.
56. If the Applicant was fit to work overtime, he would be working overtime on a consistent basis.
57. Leaving aside the issue of overtime, in making its decision, the Respondent has also erred in assessing the Applicant's NWE in accordance with a CSO2 as the Applicant was employed as a CSO3 prior to his date of injury.
58. In so far as the level of overtime of the relevant class of employees fluctuates from time to time, those fluctuations should be reflected in the Applicant's payments pursuant to ss8(9) and (10). The Applicant contended that the relevant class of employees are those employees in the field work where the Applicant would have stayed had he not been injured. That is, the class of employees who undertake regular overtime.
59. The sample period adopted by the Respondent in selecting the period to consider the Applicant’s overtime history was criticised. Mr Mills, it was said, should have ascertained that the Applicant had in fact been on leave for 2 weeks during the 12 week period.
60. As to the use of comparable employees, counsel observed that the concept arises because there are a number of provisions which allow for a broader consideration of what someone might earn. This introduces the concept of a class of employees: “comparables”. Counsel submitted that I should consider what would happen if the Applicant was still in the same position that he would have been if he were not incapacitated. In practical terms that may involve consideration of other employees and the level of overtime that they do, but should not include those employees who do not work overtime. It was submitted that the overtime worked by those employees over the period of a year should be used. In this regard counsel referred me to the Tribunal’s decisions in Smith and Telstra Corporation Limited [2003] AATA 1205 and Morrow and Telstra Corporation Limited [2003] AATA 1205.
SUBMISSION: THE RESPONDENT
61. It was submitted that the assessment of the Applicant’s NWE pursuant to the SRC Act in respect of “lower back strain” sustained on 8 March 1992, reflected a fair representation of his normal weekly earnings preceding the incident and currently in accordance with the provisions of the SRC Act.
62. Assessment of the Applicant’s NWE pursuant to the SRC Act in respect of “low back strain” sustained on 8 March 1992 should be calculated pursuant to section 8(1) of the SRC Act at an ordinary rather than an overtime rate and the assessment of his NWE on 26 September 2002 is correct, as overtime was not “required” and “regular” as was required in Zarb to allow assessment under subsection 8(2) of the SRC Act.
63. Counsel for the Respondent referred me to the decision in Re Brede and Department of Defence (1994) 33 ALD 669 where Deputy President McMahon in dealing with section 8, setting out the method for arriving at normal weekly earnings and in particular section 8.9 said at paragraph 18:
“‘Variations in normal weekly earnings are made by reference to
amounts payable to a class of persons, not to an individual
employe . . . ‘’
Mr Brede, formerly a Colonel in the Army, was no longer a serving officer, and the Deputy President said:
“ ‘ . . .The question to be asked is not what would be Mr Brede's normal
weekly earnings if (theoretically) he was still a serving officer, but
rather what are the normal weekly earnings of a person who now
holds the position the applicant held at the time of his employment’”.
64. Counsel said that at the date of the injury the Applicant had been a CO2, rather than a CO3 which had been his recollection. It was submitted that the best evidence was his pay records which note that at the time of the accident he was being paid as a C02. It was unlikely, it was submitted, that if the Applicant had in fact been promoted to CO3, that he would not have complained about being continued to be paid as underpaid, that is, as a CO2.
65. Counsel for the Respondent submitted that I should prefer the evidence of Mr Bryant in relation to the regularity of the Applicant’s overtime. In addition, Mr Mills had given the Applicant the benefit of the doubt in the decision under review where ‘allowances’ not only included overtime but also other allowances such as travel allowance. Given that overtime was paid at time and a half or double time, the calculation of hours which was done on the basis that the ‘allowances’ were paid at normal pay rate, would mean that the actual number of overtime hours would have been less than that calculated.
66. Counsel also referred me to the decision in Slater and Telstra Corporation Limited [2002] AATA 597. At the hearing before the Tribunal, counsel for the Respondent contended:
“ . . , the evidence in this case is that the applicant himself concedes that he
was not forced to work overtime, that he had the option of declining to
work overtime if he so desired. There was evidence that people did
declined to work overtime. There was evidence that even if someone
nominates for overtime and does not turn up, nothing eventuates from that.
The mere fact that the overtime would not be available unless the employer
needed it in order to service its targets or its functions, in our submission
takes the matter absolutely no further because on what basis does any
employer ever offer overtime”. (Transcript p21)
67. In relation to Webster, counsel submitted that that case was not binding on the Tribunal and should not be followed. In any event, he suggested a number of bases on which it could be distinguished. These are detailed below.
68. The Respondent therefore contended that the Applicant’s NWE cannot be calculated pursuant to subsection 8(2) of the SRC Act.
FINDINGS
69. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
70. It should be observed that at the resumption of the proceedings on the second day counsel for the Respondent indicated that there were amendments to the decisions under review, and that these amendments were made by consent.
71. In relation to the first matter, that is the decision of 10 October 2002, the available overtime hours was reduced form 3.325 hours to 1.88 hours. This would have the effect of reducing NWE, but the figure was not recalculated. It was agreed the figure would be less favourable to the Applicant.
72. In relation to the second decision under review dated 8 June 2004, the available overtime had been calculated at 2.77 hour per week, but was increased to 3.21 hours per week. That figure also was not recalculated, but, it was agreed, would be more favourable to the Applicant.
Should the overtime be accounted for by reference to s8(1) or s8(2) of the Act?
73. There was no dispute that the Applicant’s NWE should contain a component for overtime. The issue however was whether it should be calculated by reference to s 8(1) or s8(2) of the Act.
74. The purpose of s8 of the SRC Act is to provide a means of calculating NWE that fairly reflects the employee’s pre-injury wages including allowances, whilst making provision for the employee not to be better off than he would have been had he not been incapacitated.
75. Section 8 of the Act provides for calculation of NWE by, firstly, working out a NWE based on an employee's rate of pay per hour for the average number of hours worked in each week by the employee during the relevant period (s 8(1)). To this is added certain allowances payable to the employee each week in the relevant period.
76. Where an employee is required to work on a regular basis, that overtime is dealt with on a different basis in accordance with s8(2) of the SRC Act. To the NWE figure derived from s8(1) is added a figure worked out by multiplying the average number of hours of required and regular overtime worked each week by the employee by the employee's average overtime rate of pay.
77. The decision as to which subsection is appropriate turns on whether the overtime worked was “required” and “regular”.
Was the Applicant “required” to work overtime?
78. It was submitted on behalf of the Applicant that he was required to work overtime and regularly did so. That being so, any calculation of the Applicant's NWE should make provision for hours in excess of ordinary hours to be paid at the applicable overtime rate (s8(2)).
79. The Applicant’s counsel invited my attention to the various awards and enterprise agreements relevant to the Applicant’s workplace. The contention was that if the Applicant had not been required to work overtime then he would not have been paid for it. It was not open to him to choose to do overtime because it pleased him to do so unless his employer had a “requirement” for work to be done. I accept this to be the case, but it is not the end of the matter.
80. The Applicant gave evidence that it was open to him to refuse overtime if it were offered. Mr Bryant spoke of an analysis of overtime which had been undertaken which revealed that about 90% of overtime was undertaken by two thirds of the staff and that the remaining 10% was done by the other one third. This included some staff who did no overtime at all.
81. Counsel for the Applicant was not deterred in her submission by the evidence (Messrs Bryant and Lennox) that no action was taken against those who did not turn up for overtime, even if they did not have a legitimate excuse for their absence. Counsel invited my attention to Webster, which does not appear to have been previously considered by this Tribunal, since it was decided in December 2003.
82. While that case may be of some persuasive value in the matters put to me by counsel for the Applicant, I am not bound by that decision. In any event there are some significant points of difference between that case and the present matter.
83. First, and most obviously, the legislation is different. I consider the provision of s70 of the Workers Rehabilitation and Compensation Act 1988 (Tas) to be in much stronger terms than those in the SRC Act. Overtime is referred to as a “requirement” of the worker’s contract of employment.
84. The Court also noted that the Council’s overtime roster system was fixed some months in advance, the council could not decide to close its tip one Saturday without notice to its employees, and employees could not “absent themselves on a sunny Saturday”. Employees could elect to participate in the overtime program and, once committed, could only absent themselves from attendance by arranging a replacement. In all these features the present matter differs. Instead, volunteers are called for, but only a few days in advance, depending on the numbers and the skills needed to meet the Respondent’s obligations to its customers. If there is no need for overtime work then presumably none would be offered. Employees can in fact “absent themselves on a sunny Saturday” without penalty. Employees can elect to participate in the overtime program, deciding from week to week, not 6 months in advance. Even if an employee nominated for overtime in a particular week and is selected, there is no need to organise a replacement if he or she changes his or her mind.
85. Counsel in Webster had argued there was a “moral obligation to the employer to work overtime”. This was specifically rejected by the Court. In the present matter I do not even think that it could be said there is a “moral obligation” to work overtime, given that the evidence was that some employees choose not to work overtime at all. This apparently passes without adverse comment. There was no evidence that the Respondent had exercised any power it may have under the relevant awards to “force” a worker to work overtime.
86. Counsel for the Applicant referred to the analysis of Zarb which was put forward by SM Sassella in Smith at paragraph 47(e):
“The word ‘required’ means ‘the imposition, by the employer in an authoritative fashion, of an obligation upon the employee to work overtime on a regular basis’ (Re Zarb (above) at page 727, paragraph 34). The employee’s representative in Re Zarb (above) had argued that ‘required’ should be taken to mean ‘needed’ such that if the employer had a ‘need’ for overtime to be done. Then that could be considered to be required overtime, even if the employer did not mind which employee did the overtime (page 727, paragraph 33). Deputy President Burns rejected this argument saying that such an interpretation would make it arguable that any overtime at all would be ‘required’ rendering that word superfluous (page 727, paragraph 34). In Re Zarb (above) the applicant had acknowledged that he worked overtime (as an intensive care nurse) of his own free will and volition. There was no compulsion or obligation involved and he made himself available to work overtime at short notice. He could refuse to work overtime. It was held that he was not “required” to work overtime”.
87. I accept the reasoning of the DP Burns in Zarb who stated at paragraph 37:
“Despite this finding, the tribunal is of the view that it should, in the interests of both parties, give consideration to how the word “regular” should be defined in s 8(2) of the Act”.
88. I therefore find that there was no requirement for the Applicant to work overtime.
Did the Applicant work overtime regularly?
89. Further, turning to the issue of regularity, I agree with the submission of the Applicant’s counsel that regularity does not require absolute uniformity.
90. It does however, in my view, taken as a whole, require a degree of consistency. In Zarb it was described as follows:
“ ‘Regular’ overtime connotes a ‘uniform or symmetrical pattern over time which can be described as usual or customary’. One looks at the overtime worked during the relevant period to determine whether the pattern is uniform or symmetrical” (Zarb at page 728, paragraph 42).
91. I reject the submission that a year may be appropriate in this case so as to determine regularity, as was submitted, “because of the seasonal nature of outdoor work”. The Applicant’s pay record reveals that the vast majority of his overtime, both numerically as to the number of pays in which overtime was paid, and in financial terms per pay, was in winter and spring. The Applicant was paid overtime only twice in summer 1991-1992.
92. To examine the whole year may be appropriate though, in that this is a long enough period to reflect the ongoing work pattern of a particular employee. Unfortunately the entire year’s records are not available, only those from 3 July 1991.
93. Having perused those records I do not accept that they show a “very substantial degree of regularity”, as suggested by counsel. In the 18 pay periods from July 1991 to the date of the injury, overtime was paid in 8 of those pay periods. Even excluding the pay period encompassing the Applicant’s leave just prior to the injury, overtime was only paid in half of the pay periods. I also observe that Mr Mills’ evidence was that the payment of “allowances” which have been used for the calculation of overtime, may have in fact included other types of allowances. It was assumed in making the decision under review that all “allowances” related to overtime.
94. This does not satisfy me as to an appropriate degree of regularity.
95. Having come to this view and that in paragraph 86 above, the Applicant’s overtime does not attract consideration under s 8(2) of the SRC Act.
At what basis should the Applicant’s overtime have been assessed?
96. Counsel for the Applicant submitted that the Respondent also erred in assessing the Applicant's NWE in accordance with a CO2 as the Applicant was employed as a CO3 prior to his date of injury. (I observe that that the pay scales for the 1991/2 refer to Communications Officer (“CO”), whereas in the ensuing years there has apparently been a nonclemanture change to “Customer Field Workforce” (“CFW”).
97. The Applicant thought he had been a CO3 at the time of the injury. Mr Bryant was not sure if the Applicant was a CO2 or CO3. It was submitted that the best evidence was his pay records which note that at the time of the accident he was being paid at a rate consistent with a C02. I agree it was unlikely that if the Applicant had in fact been promoted to CO3, that he would not have complained about being continued underpaid, that is, as a CO2, for several months.
98. In so far as the level of overtime of the relevant class of employees fluctuates from time to time, those fluctuations should be reflected in the Applicant's payments pursuant to ss8(9) and (10). This reflects the Tribunal’s reasoning in Smith which stated:
“On the basis of the tribunal’s decision in Re Brede and Department of Defence (1994) 33 ALD 669, 673 (paragraph 18), in ongoing reviews of NWE reference should be made to a class of employees currently employed by Telstra who are members of the class of which Mr Smith was a member at the time of his injury, not to the likely personal progress Mr Smith might have made himself in his employment if he had not been injured”. (Smith at paragraph 49)
99. The Applicant contended that the relevant class of employees are those employees in the field work where the Applicant would have stayed had he not been injured and who undertake regular overtime. I do not accept that this limitation is in accordance with Brede.
100. In any event, there was no criticism of the particular 11 employees selected by Mr Bryant, upon whom Mr Mills relied, only that the 11 did not represent a fair sample. I do not agree. In fact, all 11 employees selected, according to the records (PT10, p28-76) worked overtime.
101. As to the use of a 12 week period for consideration of overtime, I reject the contention that this was inappropriate. The strict requirement of the SRC Act is 2 weeks. That the Respondent has a policy of adopting a longer period is eminently fair. As to present “seasonal fluctuations”, I agree with counsel for the Respondent that there was no evidence as to this. There is evidence of some seasonal fluctuations - now over 12 years ago. To the extent that these may be relevant, they do not, in my view, assist the Applicant.
DECISION
102. N2003/645: The decision under review, as varied to take into account overtime of 1.88 hours is affirmed.
103. N2004/829: The decision under review, as varied to take into account overtime of 3.21 hours is affirmed.
104. Both matters are remitted to the Respondent to recalculate NWE having regard to the variations referred to above.
COSTS
105. The matter of costs is dealt with in s67 of the Act and, relevantly, sub-section 67(8) reads:
"(8) Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:
(a) varying a reviewable decision in a manner favourable to the claimant; or
(b) setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;
the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority."
106. As a decision favourable to the Applicant has resulted from the hearing in matter number N2004/829, costs are awarded to the Applicant under the above provision.
I certify that the preceding paragraphs are a true copy of the reasons for the decision herein of
MS N ISENBERG, MEMBERSigned:
M.DiCondio .....................................................................................
Associate
Date of Hearing
Date of Decision
Counsel for the Applicant Ms L Walker
Solicitor for the Applicant Ms R James, Slater & Gordon, solicitors
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Ms T Payne, Sparke Helmore, solictors
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