Lieschke and Telstra Corporation Ltd (Compensation)
[2024] AATA 3434
•26 September 2024
Lieschke and Telstra Corporation Ltd (Compensation) [2024] AATA 3434 (26 September 2024)
Division:GENERAL DIVISION
File Number(s):2017/0096, 2019/3287
Re:Lieschke, Christopher
APPLICANT
Telstra Corporation LtdAnd
RESPONDENT
DECISION
Tribunal:Senior Member Hon J Rau SC
Date:26 September 2024
Place:Adelaide
ORDERS FOR APPLICATION 2017/0096:
Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the decision of the Respondent of 7 October 2016 is set aside.
Pursuant to s 43(1)(c)(ii) of the AAT Act, the matter is remitted to the Respondent with the following directions:
(a)On the following dates, the Applicant was entitled to an increase in his normal weekly earnings (NWE) by the following percentages under ss 8 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act):
(i)1 October 2010: 2.4%
(ii)1 October 2011: 3.5%
(b)On 1 December 2011, the Applicant was entitled to a further increase in the NWE payable to him under ss 8 and 19 of the SRC Act because:
(i)when the Applicant suffered his relevant injury on 15 October 2009, he was a member of the same class (Class) of employees as the employees identified as E2, E3, E5, E6 and E7 at [68(a)] of the Tribunal’s reasons of 23 February 2024 (Reasons).
(ii)on 1 December 2011, the Respondent began to transition to a changed digital support operating model (2011 Changes) resulting in new shift work responsibilities being assumed by all members of the Class (except the Applicant).
(iii)due to the 2011 Changes, all members of the Class (except the Applicant) were required to perform a higher proportion of work on dates (or at times) to which overtime or other penalty rates applied.
(iv)this resulted in all members of the Class (except for the Applicant) receiving an increase in the minimum amount per week payable to them under the industrial instruments that set their remuneration.
(v)that increase in the amount payable to the members of the Class (except for the Applicant) constituted an increase by a ‘relevant percentage’ for the purposes of s 8(9A) of the SRC Act.
(vi)the Applicant was therefore entitled to an increase in his NWE, pursuant to ss 8(9)-(9A) of the SRC Act, by 15.12% on 1 December 2011, which is the same percentage as that received by the member of the Class who received the lowest or least amount of increase on 1 December 2011, namely, employee E5.
(c)On the following dates, the Applicant was entitled to further increases in his NWE by the following percentages pursuant to ss 8 and 19 of the SRC Act:
(i)1 October 2012: 2%
(ii)1 October 2013: 3%
(iii)1 October 2014: 2%
(iv)1 July 2015: 2.6%
ORDERS FOR APPLICATION 2019/3287:
Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the decision of the Respondent of 12 April 2019 is set aside.
In substitution for that decision, and pursuant to s 43(1)(c)(i) of the AAT Act, the Tribunal decides the Applicant was entitled to an increase in the normal weekly earnings payable to him under ss 8 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) by the following percentages on the following dates:
(a)1 July 2016: 2.1%
(b)1 July 2017: 2.0%
(c)1 July 2018: 2.1%.
........................ [sgnd]..............................
Senior Member Hon J Rau SC
CATCHWORDS
COMPENSATION – “class of employee” under s 8(9A) Safety, Rehabilitation and Compensation Act 1988 (Cth) – continuing application of AWA under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – the Applicant was a part of an identifiable class – the parties are invited to make further submissions to the Tribunal as to the appropriate form of the final orders to be made in this matter, having regard to the reasons contained herein – the parties provided agreed orders which in my view are the correct or preferable orders to be made in respect of each application.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Workplace Relations Act 1996 (Cth)
CASES
ASP Ship Management Pty Ltd V Wood (2007) FCAFC 97 ALD 581
Re Willis and Comcare (2014) AATA 603
Crick v Comcare (2020) AATA 4483
Re Lieschke and Telstra Corp Ltd (2016) AATA 361
Re Lieschke and Telstra Corp Ltd (2018) AATA 3787
Re Lieschke and Telstra Corp Ltd (2021) AATA 4462.
REASONS FOR DECISION
Senior Member Hon J Rau SC
26 September 2024
INTRODUCTION
On 23 February 2024, the Tribunal provided to the parties my proposed reasons, being my findings of fact in relation to both applications for review.
The Tribunal invited the parties to make further submissions as to the form of the final orders to made, having regards to those findings. This process has taken some time and it has involved several directions hearings.
The parties have provided agreed orders which I have considered and which in my view are the correct or preferable orders to be made in respect of each application. The reasons are as follow:
THE APPLICATIONS
Mr Lieschke has two applications before the Tribunal. These concern two decisions made by the Respondent (“Telstra”). Both decisions relate to Mr Lieschke’s Normal Weekly Earnings (“NWE”) for the purposes of calculating his entitlements pursuant to ss 8 and 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).
(a) 2017/0096: the 2017 Application[1]
This application is seeking review of a decision made on 7 October 2016 (“the 2016 Decision”).[2] That decision affirmed a determination dated 15 August 2016 (“the 2016 Determination”) determining the Applicant’s NWE between 15 October 2019 and 23 December 2019 (“the first NWE period”) pursuant to ss 8 and 19 of the SRC Act.
(b) 2019/3287: the 2019 Application
This application is seeking review of a decision made on 12 April 2019 (“the 2019 Decision”) revoking a determination made on 6 February 2019 (“the 2019 Determination”) for the period 23 December 2015 and 10 October 2018 (“the second NWE period”) pursuant to ss 8 and 19 of the SRC Act.
[1] Exhibit 5, Respondent’s T-Documents for Application for 2017/0096 (2017 application), T1.
[2] Ibid – application made on 8 December 2016, 1.
THE HEARING
Mr Lieschke was self-represented. Telstra was represented by Mr Andrew Schatz of Counsel, and Mr Michael LaVista from Sparke Helmore. The hearing was conducted in person.
The Hearing was conducted on 11 and 12 January 2024. The first day was consumed by lengthy preliminary discussions regarding the relevant documentation and the best way to approach the hearing. The matter was adjourned to enable Mr Lieschke to read and consider the transcript of earlier AAT proceedings, before DP Britten-Jones.
A new index of documents was agreed by the parties during the adjournment. The agreed documents were received at the start of the second day. These are set out in “Annexure B”.
Mr Lieschke gave sworn evidence on the morning of the second day. It was quite brief, as the factual points in issue were by then, relatively confined. He gave his evidence in a direct manner. No credibility issue was raised.
Most of the hearing time was consumed by submissions regarding the proper application of the law, to largely uncontroversial facts.
I have come to the view that the best way to proceed, is to approach the hearing in two parts. In this first part, I am concerned only with higher level legal issues. These legal issues concern the calculation of shift allowances and the application, or otherwise, of a 2006 AWA.
The AWA issue is relatively straightforward. If this were the only issue before the Tribunal, a determination could be made, without the further assistance of the parties.
The calculation of shift allowances, however, is potentially much more complex, as it concerns a determination of a relevant class of comparator employees. If there were no class as such, this issue would also be relatively straightforward. In this instance however, I have, for the reasons set out below, come to the view that there is such a class.
In these circumstances, the resultant possible permutations in this calculation are complex. It is for this reason that I have decided to invite the parties to make further submissions. I will then make final orders in this matter.
The parties should be mindful that their participation in the suggested process of assisting the Tribunal with the crafting of final orders, is not in any way prejudicial to their rights to seek a review of the final orders elsewhere, should they be unhappy with these reasons, or those orders. There is no decision as such, until those orders are made.
After publication of these reasons, I will give the parties time to consider their position. I will then convene a directions hearing, to hear their submissions concerning the appropriate next steps, or if appropriate, what the final orders should be.
BACKGROUND FACTS
The Applicant is 45 years of age.
This case has a long and complex history. There have been previous AAT decisions involving Mr Lieschke and Telstra, regarding matters arising under the Act.[3]
[3] Re Lieschke and Telstra Corp Ltd (2016) AATA 361; Re Lieschke and Telstra Corp Ltd (2018) AATA 3787; Re Lieschke and Telstra Corp Ltd (2021) AATA 4462.
On 18 September 2006, Mr Lieschke signed an AWA covering his employment with Telstra (“the AWA”). This had a start date of 3 October 2006. This was expressed to operate for a period of 5 years from its lodgement with the Australian Industrial Relations Commission, which occurred on 6 October 2006.[4]
[4] Exhibit 11, Australian Workplace Agreement (AWA) signed on 18.09.2006.
There is no evidence to suggest that Mr Lieschke ever took any steps to terminate the operation of the AWA.
On 15 October 2009 (“the date of injury”), he suffered a brain haemorrhage.
By letter dated 28 January 2010 (“the 2010 determination”), Telstra accepted liability to pay compensation for a “subarachnoid haemorrhage due to a ruptured left middle cerebral aneurysm and a fractured left ankle” (“the Injury”). Telstra determined that as at the date of injury, the Applicant’s NWE was $1,083.65.[5]
[5] Exhibit 5, T-Documents for Application 2017/0096 (2017 application), 12.
On 3 March 2011, Mr Lieschke received a salary increase. This increased his NWE from $1,239.11 to $1268.85.[6]
[6] Exhibit 6, T-Document for Application 2019/3287 (2019 application), 7.
Mr Lieschke says he attended a meeting in 2011 where he voted for the Telstra Enterprise Agreement 2012-2015 (“the EA”). It seems that he is mistaken in dating this recollection. Telstra says, and the evidence suggests, that this vote took place in September-October 2012. The EA began operating on 17 December 2012.[7]
[7] Exhibit 12, Telstra Enterprise Agreement 2012-2015 (2012 EA), 2.
On 16 July 2013, Telstra varied the 2010 determination as follows (“the 2013 determination”):
“I have decided to vary the determination dated 28 January 2010 to find under section 8 of the SRC Act that your normal weekly earnings:
a) As at 15 October 2009 are $971.27;
b) As at 22 July 2010 are $1,071.31;
c) As at 3 March 2011 are $1,097.02;
d) As at 1 October 2011 are $1,135.42;
e) As at 1 October 2012 are $1,158.13; and
f) As at 1 July 2013 are $1,187.08.”[8]
[8] Exhibit 5, 14.
On 9 August 2013, Mr Lieschke lodged an application for review in the AAT, of the 2013 determination. This application concerned the correct calculation of his NWE.[9]
[9] Ibid 21-35.
On 19 February 2015, Mr Lieschke retired from his employment with the Respondent on medical grounds.
On 30 May 2016, DP Bean made the following orders (“the 2016 AAT decision”):
“The Tribunal:
1)Sets aside the reviewable decision of the respondent dated 16 July 2013;
2)In substitution for that decision determines that Mr Lieschke's NWE amount, pursuant to s 8 of the SRC Act, as at 15 October 2009, was $1,239.11;
3)Remits to the respondent the determination of Mr Lieschke's subsequent NWE amounts, by reference to the Tribunal's Reasons for Decision and on the basis that during the relevant period, Mr Lieschke was paid 100.71% of his 'at risk' remuneration amount;
4)Reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
5)Orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by Mr Lieschke pursuant to subs 67(8) of the SRC Act.”[10]
[10] Ibid 34-35.
On 15 August 2016, the Respondent issued a determination that Mr Lieschke had been overpaid by $16,037.23 (“the overpayment determination”).[11]
[11] Ibid 36-49.
On 9 September 2016, Mr Lieschke requested a review of the overpayment determination.[12]
[12] Ibid 50-65.
The basis for the overpayment determination was the assertion that Mr Lieschke had been paid commissions from the business unit from the date of injury until 13 March 2013, as well as compensation payments that included a component for those same commissions.
On 7 October 2016, a reviewable decision affirming the overpayment determination was made by the Respondent (“the 2016 decision”).[13]
[13] Ibid 66-69.
On 8 December 2016, Mr Lieschke commenced proceedings in the AAT seeking a review of the 2016 decision.
On 6 February 2019, Telstra made the 2019 determination regarding the second NWE period (23 December 2015 –10 October 2018).
On 6 March 2019, Mr Lieschke made a request for reconsideration of the 2019 determination.[14]
[14] Exhibit 6, T-Documents for application No 2019/3287 (2019 application), 5.
On 12 April 2019, the Telstra review officer revoked the 2019 determination and substituted a different decision (“the 2019 decision”).[15]
[15] Ibid 7-10.
On 11 June 2019, Mr Lieschke lodged an application with the AAT seeking a review of the 2019 decision.
On 1 May 2019, spreadsheet C was provided to Mr Lieschke and the Tribunal. This indicated overpayment to Mr Lieschke in the sum of $19,290.64.
On 1 December 2021, DP Britten-Jones set aside the 2016 decision and substituted a different NWE as at 15 October 2009 and 23 December 2015 (“AAT 2021”).[16]
[16] Re Lieschke and Telstra Corp Ltd (2021) AATA 4462.
On 18 January 2022, Mr Lieschke appealed against AAT 2021.
On 15 May 2023, The Federal Court made orders by consent setting aside the decision in AAT 2021 and remitting it back to the Tribunal.
CONSIDERATION
The issues before the Tribunal are the correct calculation of Mr Lieschke’s entitlements pursuant to s 19 of the SRC Act. This extends to reviewing the “entire reviewable decision of (Telstra)”.[17] This has several components which are discussed below. As previously mentioned, at this stage the Tribunal is not entering into the exercise of calculating actual pay rate adjustments, but dealing with the higher-level legal issues which must first be resolved to enable such calculations to be made.
[17] Crick v Comcare (2020) AATA 4483 para 171 (Mc Dermott DP).
There have been numerous adjustments to Mr Lieschke’s payments over the years. Each incremental increase is calculated by making an adjustment to the then existing pay rate. It follows that an error anywhere in this connected chain will require an adjustment to all succeeding calculations.
The AWA/ EA issue
As previously observed, the AWA applied to Mr Lieschke from 6 October 2006.
Item 2 of Part 2 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“FWTP Act”) provides that the AWA was a “WR Act instrument”.[18] This preserved its ongoing operation, notwithstanding the repeal of the Workplace Relations Act 1996 (Cth) (“WR Act”):
[18] Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) sch 3 item 2(5).
Item 2(5) of Part 2 of Schedule 3 to the FWTP Act states that:
“Transitional instruments are classified as follows: …
(d) agreement-based transitional instruments of the following kinds are individual agreement-based transitional instruments:
…
(iii) AWAsItem 3 of Part 2 of Schedule 3 to the FWTP Act further relevantly provides that:
"A transitional instrument covers the same employees, employers and any other persons that it would have covered (however described in the instrument or WR Act) if the WR Act had continued in operation.
Note 1: The expression covers is used to indicate the range of employees, employers etc. to whom the instrument potentially applies (see subitem (2)). The employees, employers etc. who are within this range will depend on terms of the instrument, and on any relevant provisions of the WR Act.
…
(2) A transitional instrument applies to the same employees, employers and any other persons the instrument covers as would, if the WR Act had continued in operation, have been:(a) required by the WR Act to comply with terms of the instrument; or
(b) entitled under the WR Act to enforce terms of the instrument.Note: The expression applies is used to indicate the range of employees … who are required to comply with, or can enforce, the terms of a transitional instrument
Item 18 of Part 3 of Schedule 3 to the FWTP Act relevantly provides that:
(1) This item provides for the making of an instrument (a conditional termination) that will have the effect of terminating an individual agreement-based transitional instrument if:
(a) an enterprise agreement (the proposed enterprise agreement) is made that covers the employee and the employer; and
(b) the proposed enterprise agreement comes into operation.(2) If the transitional instrument has not passed its nominal expiry date, the conditional termination must be a written agreement signed by the employer and the employee. The signatures must be witnessed.
(3) If the transitional instrument has passed its nominal expiry date, the conditional termination must be in writing and signed either by the employee or the employer. The signature must be witnessed.
…
(6) The employer must give the employee a copy of the conditional termination if:(a) the conditional termination is an agreement signed by the employee and the employer in the circumstances covered by subitem (2); or
(b) the conditional termination is signed by the employer in the circumstances covered by subitem (3).…
(8) If the requirements of subitems (2) to (5) have been complied with in relation to the conditional termination, the transitional instrument terminates when the proposed enterprise agreement comes into operation.
Item 30(1) of Part 5 of Schedule 3 to the FWTP Act relevantly provides:
“While an individual agreement-based transitional instrument applies to an employee, or to an employer in relation to the employee, an enterprise agreement … does not apply to the employee, or the employer in relation to the employee.”
The 2012 EA would replace the AWA if Mr Lieschke had taken steps to terminate it. There is no evidence to suggest that he did so.
For these reasons, I find that the AWA at all relevant times was the appropriate instrument for the purpose of calculating Mr Lieschke’s entitlements.
The Shift work issue:
The dispute regarding shift allowance concerns Mr Lieschke’s claim to an increase of 20% in his NWE on 1 December 2011.[19]
[19] Ibid, see Position Table.
At that time, he was still employed by Telstra.
By an email dated 18 July 2013, Mr Lieschke nominated 7 other employees by name (the comparators). He said that the comparators were “Team Leaders” like him. He contends that their shift work pattern and payments, demonstrate what his would have been. He argues that “the correct increase is to be calculated by reference to the salaries of my comparator Team Leaders.”[20]
[20] Exhibit 1, Applicant’s bundle of evidence, 1.
Mr Lieschke basically says that if he had been at work, he would have done shift work, just as the comparators did. As a matter of common sense, this proposition may be correct. If the present exercise were one of quantification of past economic loss in line with general Common Law principles, Mr Lieschke may also be correct in drawing a comparison with these workers. That is not however the question before the Tribunal. In this case, the calculation must made by reference to a specific statutory formula.
The relevant provisions of the SRC Act are as follows:[21]
Section 8:
(9) The normal weekly earnings of an employee before the date of the employee's injury, as calculated under the preceding subsections, must, while the employee continues to be employed by the Commonwealth or a licensed corporation, be increased or reduced by the relevant percentage.
(9A) For the purposes of subsection (9), relevant percentage means the same percentage as the percentage of increase or reduction in the minimum amount per week payable in respect of employees included in a class of employees of which the employee was a member at the date of the injury 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.
[21] Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC”) ss 8(9)-(9A).
The first question here is to determine what, if any, “class of employees” Mr Lieschke was a member of, at the time of his injury.
Telstra directed the Tribunal’s attention to a Full Federal Court decision in ASP Ship Management Pty Ltd v Wood (“ASP”).[22] This case dealt with the Seafarers Rehabilitation and Compensation Act 1992 (Cth). This is different legislation to the SRC Act, but it has substantially similar provisions, performing a similar function. There is authority for the Tribunal applying the same reasoning as was applied in ASP, in NWE cases, under the SRC Act.[23]
[22] [2007] 161 FCR 429.
[23] Re Willis and Comcare (2014) AATA 603 at [18].
In ASP, the Full Bench of the Federal Court said:
“[19] Both O’Shea and Thompson demonstrate the importance of identifying and considering the particular conditions of employment and the nature of the work in order to determine the appropriate class.
…[20] In reaching a conclusion as to the appropriate class, it should be kept in mind that there may be a stage where in undertaking the necessary exercise of comparison it can be seen that the differences in duties, conditions, qualifications, remuneration and service are so extensive as to travel beyond the description of a particular “class”. In those cases, a different “class” has manifested itself. However, that point has not been reached in the present case: cf the observations of Finn J in Comcare v Thompson (2000) 100 FCR 375 at 384.
[21] Section 13(6) of the Act does not express any specific criteria or relative importance of considerations which prescribe the way in which a class of employee must be selected or any indication that the class must be a narrow one. The reference to “a” class rather than “the” class points to a range of possible classes at different levels of generality. In order to determine the appropriate class and its relevant characteristics, regard must be had to the context and purpose of the provision, which in this case is to ensure that relativity is preserved between the compensation paid and the varying levels of remuneration over the post-injury period. The legislation is beneficial in nature, which, as noted by the primary judge, suggests a broader and more liberal interpretation than might otherwise be the case. Accordingly, it is in our view incorrect in the present case to select as the “class of employees” only those employees covered by a relevant industrial award on the basis that remuneration could not otherwise be ascertained.
[22] The phrase “a class to which the employee belonged” is used in the particular statutory context of the Act, requiring determination of remuneration in relation to the operation of State and federal laws, awards, agreements and determinations. The question of the meaning of the expression is not one of fact when determining which class is appropriate, but one of law. It is settled principle that the question whether a phrase or word in a statute is to be given its ordinary meaning or some other technical meaning is a question of law: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. In the present case, ascertaining the meaning of the statutory expression “a class to which the employee belongs” is a question of law because the expression is used in a particular statutory context by reference to which the meaning must be derived. The expression is not used in its ordinary lay sense as determined by daily usage: cf Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 397.
…
[29] If the Tribunal in this case was correct to find that the class is inextricably tied to and identified by the amount of its remuneration, then a single individual who had a contract of employment of the kind within s 13(1) or (4) which provided for a different remuneration to others who did the same work could never be in a class within s 13(6). Yet, s 13(6) operates on ‘the normal weekly earnings of the employee before the injury, worked out under the preceding subsections’. That is, Parliament has required adjustments for each of the employees who are entitled to compensation based on earnings ascertained under s 13(1), (2), (3), (4) or (5). That entails that such persons are not to be excluded from the calculation which s 13(6) requires be made to ascertain the applicable increase or reduction.
[30] The Tribunal at [37] selected the class into which Mr Wood fell as catering assistants working on vessels of 39,000 tonnes or more with a crew of more than 18 covered by the Award. It did so because it found that remuneration was a common identifiable determinant and it adopted what Forgie DP had said in Thompson 69 ALD 762. A catering assistant who worked on a 38,900-tonne vessel with 18 crew would perform the same work but be outside the Tribunal’s class. If an award later reclassified the position of catering assistant to include both those on the 39,000 and 38,900 tonne vessels at a common, but increased, rate of pay (in lieu of their previously different rates), the principle used by the Tribunal to identify the class would result in a conclusion that the class would no longer exist because of the newly cognate remuneration structure. This would be so even though the work performed by catering assistants on each vessel was identical before and after the reclassification of their remuneration structure.
…
[33] … Because s 13(6) refers to a class of employees and to the possibility that a completely new award or an altered award may apply to them, it is erroneous to confine consideration to a class whose members can only be those who meet the description of having common remuneration under the provisions of an unaltered award at the time of the injury. Rather, s 13(6) identifies those who were in a particular relationship with employers at the time at which the employee was injured, defining them as a class, and then traces through changes to generic criteria for fixing like persons’ normal weekly earnings. That is why s 13(6) refers to the making of new awards, determinations or certified agreements, or the alteration or operation of existing ones. In this, the section seeks to provide a broad means of reference from which normal weekly earnings of the injured employee can be adjusted, having regard to movements within that sector of the industry to which his or her contemporary comparators belonged.
[34] When it treated remuneration received by the employee concerned as the identifying feature or primary determinant of the class, the Tribunal unduly confined its consideration of the matters which the Act required in selecting the class. Section 13(6) required the Tribunal also to consider the work which the employee did at the time of the injury and to see whether others did similar work which could be used as a yardstick to identify, at a time later than that of the injury, what similar employees now do and the variety of industrial arrangements (awards, determinations or certified agreements) which now provide remuneration for that work.
…
[37] In the present case, the Tribunal accepted at [35] that one possible class was that of “catering assistants”, and that the continuation of this class in the ‘offshore segment’ was beyond doubt. However, this description of the class was rejected by the Tribunal because it considered that it would render impossible the task of identifying a percentage increase for the purposes of s 13(6). On the other hand, the Tribunal considered that it was possible to identify a percentage increase if the narrower class, based on criteria in the Award, was selected.
[38] The language of s 13(6) requires a determination of ‘class’ and then, once this has been determined, a calculation of the appropriate percentage increase. What the Tribunal did in this case was to select the narrow class because it could not otherwise quantify the amount of remuneration. In terms of s 13(6), the percentage increase is a matter to be determined after the class has been selected in the light of a careful consideration of the similarities and differences between the position held by the employee at the time of the injury, and the class which is said to be continuing after the injury. The Tribunal failed to properly address this task and did not consider and make findings on the evidence to justify its determination of the narrow class. The Tribunal did not compare relevant features between the categories of catering assistants in the ‘blue water segment’ and ‘offshore segment’. Relevant matters for consideration and comparison include the nature of the work, specific duties, working conditions, hours of work, remuneration, promotion, accommodation and holidays. Only when such a comparison is conducted will a decision maker be able to determine, for example, whether the differences are sufficiently great to give rise to a “discontinuity” in the classification. As a consequence of its erroneous approach, the Tribunal did not carry out this exercise.
[40] The first matter concerns the nature of seafarers’ activities, which are divided into the ‘blue water segment’ and ‘offshore segment’. The fact that there was some evidence before the Tribunal that seafarers operated in two areas did not mandate a conclusion that there could not be a continuing class of ‘catering assistants’ in the present case. In other words, it did not mean that regard could not be had to the features of the position of ‘catering assistant’ in the ‘offshore segment’ when fixing a class or calculating the relative increase or decrease in remuneration to an injured seafarer in the ‘blue water segment’. There is nothing in the language of s 13(6) of the Act which requires such an approach. Indeed, the Tribunal found that it was ‘beyond doubt’ such a class continued to exist but reasoned that it should not be used for the purposes of s 13(6) because to do so “would ignore the central feature of remuneration” and make the Tribunal’s task of identifying a percentage increase impossible. However, in this case, if the Tribunal concluded after careful consideration that there was a continuity of class, then the appropriate percentage adjustment would be a matter of evidence.
…
[42] By way of example, a markedly higher rate of pay for chefs may reflect significant differences in levels of skill, experience or reputation. The higher pay may even be so extreme as to suggest the existence of a different class. Nevertheless, it may be that on investigation and comparison of the circumstances of their employment a great difference in remuneration is not attributable to those work-related factors, but rather to extraneous factors, such as better bargaining ability by their representatives. For this reason, it is necessary to carry out the factual investigation and make the comparison between the relevant features of the positions.
[43] While remuneration will generally be a matter to take into account in all cases, it is not correct to proceed on the basis that remuneration will always be the central or determinative consideration in ascertaining a class. On a fair reading of the Tribunal’s reasons in this case, it can be seen that it has determined the question of class of employees by wrongly assigning centrality, primacy or paramountcy to one consideration, namely remuneration, for which there is no basis in the language of s 13 of the Act.
[44] For these reasons we find that the narrow focus by the Tribunal on a perceived inability to fix a percentage increase distracted it from properly determining the question of class by an analysis of the respective duties and other characteristics of the position in the ‘blue water segment’ and the features and duties of a ‘catering assistant’ in the ‘offshore segment’. The Tribunal accepted that there was a continuing, albeit broad, class of ‘catering assistants’, but notwithstanding this and on the basis of an unwarranted assumption that it would be impossible to fix a figure, the Tribunal selected the narrower class. It is difficult to see why, having accepted the class of “catering assistants” and having acknowledged that it continued in the ‘offshore segment’, the Tribunal proceeded to decide that it was not able to apply a percentage figure to Mr Wood’s position in the ‘blue water segment’.
The Tribunal is not presently concerned with whether 20% or some other “relevant percentage” is appropriate. We are initially concerned only with the legal question of determining “which class is appropriate”.[24]
[24] ASP (above n 23) [22].
In determining this legal question, remuneration is a “relevant and important” consideration, but it would be wrong to give it “paramountcy”. I also note the Full Court’s comment in ASP, that “when the Tribunal held that identifying a percentage increase was impossible, it misapprehended its task”.[25]
[25] Ibid [14].
The purpose of ss 8(9) and (9A) is “to provide for an adjustment of the compensation payable to an injured employee, so that his or her salary does not remain static……In light of this purpose, … [the provisions] must be given a broad interpretation”.[26] In ASP, the Tribunal had fallen into error by identifying a narrow class which was determined by reference to a common determinant of remuneration based on award specifications.[27]
[26] Ibid [13].
[27] Ibid [10].
The expression “class of employees” is a different concept to that denoted by “designation”, “position” or “classification”.[28] It follows that employees may be engaged to perform a range of duties, have different workloads and skill levels, yet still be part of a “class of employees”.[29]
[28] Ibid [15].
[29] Ibid [16].
Relevant matters for consideration and comparison in ascertaining a class “include the nature of the work, specific duties, working conditions, hours of work, remuneration, promotion, accommodation and holidays. Only when such a comparison is conducted will a decision maker be able to determine for example, whether the differences are sufficiently great to give rise to a “discontinuity” in the classification”.[30]
[30] Ibid [38].
The Tribunal has before it, wage and employment records for Mr Lieschke and the comparators. In the received documents, the identities of the comparators are redacted for privacy reasons. The Respondent showed the Tribunal an unredacted version during the hearing and I am satisfied that the redacted document contains the relevant information regarding the comparators.[31]
[31] Exhibit 9, Respondent’s Redacted Employment Records (RR).
Mr Lieschke gave evidence regarding the similarities between his job and that of the comparators.
In his evidence, he said:
“Mr Lieschke: Staff were usually coached in one specific area and then had to expand on that over time, which is what the change in 2011 was actually about for the business. (Indistinct). So there was no change in that as to what the job as a sales team leader was. But it’s providing all the briefs and all the information to all the staff. And that was irrespective of whatever instrument they were actually on.
…
Now that was no different to Supremacy, which was the building - or was the business itself. Because we were all - all the team leaders that were there, we all did a digital model already, as well as the phone contracts. So the inbound and outbound phone sales and chat, which is a digital model. And it’s just an integration of more teams from BigPond - a different area - but it also came down to the business. Which just made the centre a bigger digital centre, so to speak.Senior Member: Is there - - -?---
Mr Lieschke: No change in role.
Senior Member: Right?
Mr Lieschke: It was still coaching and managing staff. It was a supervisory role, but that - yes, everything the same. There was no change whatsoever in the day-to-day tasks of any of the team leaders.
….
Senior Member: But you just said that this – well there was no actual change?Mr Lieschke: Yes.
Senior Member: So this figure we’re looking at on page 13 doesn’t constitute a completely new set-up, it’s reflecting what you’re already doing?
Mr Lieschke: Yes. It’s just a change of hours. The actual job – the supervisory role, or the team leader job – was exactly the same.
Senior Member: Yes. But the hours are different?
Mr Lieschke: That’s right. And, yes, that was to all in the entire centre and it was irrespective of any - the AWA or EA or EBA, because there’s - from just a following email which was on page 15 (indistinct).
Senior Member: That’s - - - Just on that - sorry to keep interrupting you, but I’m just trying to understand (indistinct) - so, you’re telling me that the duties were basically the same but are you saying that how many - or when those duties were performed had changed by reason of the new roster?
Mr Lieschke: That’s correct.”
Based on this evidence, it seems that Mr Lieschke was doing essentially the same job at the time of his injury.
I attach a table comparing the data in Exhibit 9 marked as ‘Annexure A’.
The material in Exhibit 9, taken together with Mr Lieschke’s oral evidence, assists in determining “a class of employees of which the employee was a member at the date of the injury”.
Having regard to the authorities outlined above, I have formed the view that notwithstanding the differences, at least E2, E3, E5, E6 and E7 were members of the same class of employees as Mr Lieschke was, at the time of his injury. The fact that they were for example, paid different amounts, or were engaged under different instruments, does not change the fact that they were essentially performing the same duties.
CONCLUSION
For the reasons set out above, I have come to the view that:
(a) E2, E3, E5, E6 and E7 were members of the same class of employees as Mr Lieschke, at the time of his injury, for the purposes of the application of ss 8 (9) and (9A) of the SRC Act. Whatever the differences, they were performing substantially the same duties as Mr Lieschke.
(b) There is no evidence to support a finding that Mr Lieschke terminated the operation of the AWA. As a result, by operation of the FWTP Act, the AWA continued to apply to Mr Lieschke, and the EA did not.
DECISION
I have considered submissions from the parties regarding the appropriate form of orders.
I now make orders in the following terms:
ORDERS FOR APPLICATION 2017/0096:
Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the decision of the Respondent of 7 October 2016 is set aside.
Pursuant to s 43(1)(c)(ii) of the AAT Act, the matter is remitted to the Respondent with the following directions:
(a)On the following dates, the Applicant was entitled to an increase in his normal weekly earnings (NWE) by the following percentages under ss 8 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act):
(i)1 October 2010: 2.4%
(ii)1 October 2011: 3.5%
(b)On 1 December 2011, the Applicant was entitled to a further increase in the NWE payable to him under ss 8 and 19 of the SRC Act because:
(i)when the Applicant suffered his relevant injury on 15 October 2009, he was a member of the same class (Class) of employees as the employees identified as E2, E3, E5, E6 and E7 at [68(a)] of the Tribunal’s reasons of 23 February 2024 (Reasons).
(ii)on 1 December 2011, the Respondent began to transition to a changed digital support operating model (2011 Changes) resulting in new shift work responsibilities being assumed by all members of the Class (except the Applicant).
(iii)due to the 2011 Changes, all members of the Class (except the Applicant) were required to perform a higher proportion of work on dates (or at times) to which overtime or other penalty rates applied.
(iv)this resulted in all members of the Class (except for the Applicant) receiving an increase in the minimum amount per week payable to them under the industrial instruments that set their remuneration.
(v)that increase in the amount payable to the members of the Class (except for the Applicant) constituted an increase by a ‘relevant percentage’ for the purposes of s 8(9A) of the SRC Act.
(vi)the Applicant was therefore entitled to an increase in his NWE, pursuant to ss 8(9)-(9A) of the SRC Act, by 15.12% on 1 December 2011, which is the same percentage as that received by the member of the Class who received the lowest or least amount of increase on 1 December 2011, namely, employee E5.
(c)On the following dates, the Applicant was entitled to further increases in his NWE by the following percentages pursuant to ss 8 and 19 of the SRC Act:
(i)1 October 2012: 2%
(ii)1 October 2013: 3%
(iii)1 October 2014: 2%
(iv)1 July 2015: 2.6%.
ORDERS FOR APPLICATION 2019/3287:
Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the decision of the Respondent of 12 April 2019 is set aside.
In substitution for that decision, and pursuant to s 43(1)(c)(i) of the AAT Act, the Tribunal decides the Applicant was entitled to an increase in the normal weekly earnings payable to him under ss 8 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) by the following percentages on the following dates:
(a)1 July 2016: 2.1%
(b)1 July 2017: 2.0%
(c)1 July 2018: 2.1%
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.
.......................[sgnd]............................
Associate
Dated: 26 September 2024
Date of hearing: 11, 12 February 2024 Applicant:
Christopher Lieschke
Self-RepresentedAdvocate for the Respondent:
Solicitor for the Respondent
Andrew Schatz
Murray ChambersMichael La Vista
Sparke Helmore
Name
Job Specificity
Start date
Employment Instrument
Job status at 1 Dec 2011
Shift Hours Remuneration
Overtime Pay
Reference in Exhibit 9
Mr Lieschke
Sale Team Leader
1 Dec 2011
AWA
Permanent Full Time
Fixed
$59,167
Page 1-9
Employee 1
Operations Lead
20 Sept 2011
AWA
Permanent Full Time
Fixed
$61,179
Page 10-15
Employee 2
Sale Team Leader
20 Sept 2011
AWA
Temporary Assignment
Fixed
$47,064
Page 16-22
Employee 3
Sale Team Leader
29 Sept 2011
TCITEA Shift + OT
Temporary Assignment
Fixed
$46,579
Page 23-29
Employee 4
Centre Team Manager
20 Sept 2011
TC ECA PA OT
Permanent Full Time
Salary Shift Hours
$67,086
Page 30-35
Employee 5
Sale Team Leader
1 Nov 2011
TC ECA PA OT
Temporary Assignment
Fixed
$45,454
Page 36-42
Employee 6
Sale Team Leader
1 Nov 2011
TC ECA PA OT
Temporary Assignment
Fixed
$45,893
Page 43-49
Employee 7
Sale Team Leader
20 Sept 2011
TC ECA PA OT
Permanent Full Time
Fixed
$61,982
Page 50-55
ANNEXURE A – COMPARING TABLE
ANNEXURE B – LIST OF EXHIBITS
Exhibit no.
Lodged by
Document
1
Applicant
Applicant’s Bundle of evidence
2
Applicant
Further Statement of facts, Issues and Contentions (23.08.2023)
3
Applicant
Further Statement of Facts, Issues and Contentions (26.08.2021)
4
Applicant
Applicant’s reply to Respondents SOFICS (03.10.23)
5
Respondent
T-Documents for application No 2017/0096 (2017 application)
6
Respondent
T-Documents for application No 2019/3287 (2019 application)
7
Respondent
Further Amended Statement of Facts, Issues and Contentions (2021 RFASFIC)
8
Respondent
Statement of Facts, Issues and Contentions (2023RSIFIC)
9
Respondent
Redacted Employment Records (RR)
10
Respondent
Respondent’s response to Applicant’s reply of 27 October 2023 (dated 30.10.2023)
11
Respondent
Australian Workplace Agreement signed on 18/09/2006 (AWA)
12
Respondent
Telstra Enterprise Agreement 2012-2015 (2012 EA)
13
Respondent
Summons issued on 8 May 2015 (2015 summons) 1 page
14
Applicant
Documents relating to 2011 Changes
0