Mackay and Comcare

[2005] AATA 931

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 931

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/510

GENERAL ADMINISTRATIVE DIVISION		)
Re		GLENYS MACKAY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date27 September 2005

PlaceBrisbane

Decision The decision under review is affirmed

...................[Sgd]......................

SENIOR MEMBER

CATCHWORDS

COMPENSATION – Commonwealth employees – meaning of ss 8(1) and 8(2) of the Safety, Rehabilitation and Compensation Act 1988 – overtime not included in the calculation of normal weekly earnings because it was not “required” or “regular”.

Safety, Rehabilitation and Compensation Act 1988 s 8

Comcare Australia v Pires [2005] FCA 747

Re Zarb and Comcare (1997) 48 ALD 718; (1997) 25 AAR 344

REASONS FOR DECISION

27 September 2005              Senior Member B J McCabe

Introduction

1. Mrs Glenys Mackay is a public servant. She has worked at the Australian Tax Office (the ATO) since December 2000. She was injured in a car accident on the way home from work on 23 December 2002. The respondent accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRCA) and agreed to pay compensation in respect of her injuries.

2. The applicant’s compensation was based in part on a calculation of her normal weekly earnings (NWE). That expression is defined in s 8 of the SRCA. The applicant says Comcare has failed to include a component in respect of overtime. The ATO agreed with Mrs Mackay’s position at first and made a payment including provision for overtime. She has since been required to repay the money. She has asked the Tribunal to review the respondent’s decision.

3. For reasons I will explain, the applicant is not entitled to have overtime factored into the calculation under s 8.

The material before the tribunal

4. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents). The following documents were also tendered: 

·A letter of Christine Crawford dated 10 September 2004 (exhibit 2);

·A letter of Christine Crawford undated and unsigned (exhibit 3);

·An overtime schedule for the period 27 November 1999 to 30 November 2002 (exhibit 4);

·Overtime schedule source document dated 30 November 2002 for 8 am – 12 pm (exhibit 5);

·Overtime schedule source document dated 30 November 2002 for 12.30 pm – 4 pm (exhibit 6).

5.      I note the original determination is included in the T documents at T57. The reconsideration decision is included in the T documents at T62.

6.      The applicant represented herself at the hearing. She also gave evidence. Ms Christine Crawford gave evidence on behalf of the respondent. She is the Director – Operations, Campaign Management at the ATO. Mr Clark represented the respondent.

7.      After the hearing the respondent contacted the Tribunal and sought leave to file further submissions in light of the decision in Comcare Australia v Pires [2005] FCA 747. I convened a telephone directions hearing to discuss the matter on 15 June 2005. I allowed the respondent to file further submissions and gave the applicant a right of reply. Both parties filed additional submissions.

The facts

8.      Mrs Mackay explained she worked under a flexi-time system. That system required that she work 7 hours and 21 minutes a day with flexible starting and finishing times. She said she routinely worked more than the minimum period and accrued “flex time” which she was able to take as leave under certain conditions. She said a worker in her position was occasionally paid overtime in respect of that extra work in addition to accruing flex time, but only if money was available in the budget or in extraordinary circumstances.

9.      There was no suggestion the applicant was obliged to work overtime. She said in evidence that she did not elect to work overtime on the occasions it was available prior to March 2002 because she had a young son. She was also looking after her husband who was recuperating from an injury. She says she was prepared to work overtime from May 2002.

10.     The applicant’s payroll records show she worked overtime on 10 occasions in 2002:

·        4 May 2002 – 8:00 to 15:15 (6.75 hours);

·        25 May 2002 – 10:00 to 15:00 (5 hours);

·        22 June 2002 – 8:00 to 15:30 (7 hours);

·        6 July 2002 – 8:00 to 15:30 (7 hours);

·        2 October 2002 – 17:30 to 20:30 (3 hours);

·        9 November 2002 – 7:30 to 16:00 (8 hours)

·        16 November 2002 – 7:30 to 16:00 (8 hours);

·        23 November 2002 – 7:30 to 16:00 (8 hours)

·        30 November 2002 – 8:00 to 12:00 (4 hours); and

·        30 November 2002 – 12:30 to 16:00 (3.5 hours).

11.     It appears the applicant worked on updating records when she worked overtime in May, June and July, and perhaps in October as well. The overtime in November was mostly paid in respect of the applicant’s assistance in cleaning out archives. Ms Crawford explained the archives needed to be cleaned out occasionally. She said the task did not have to be completed on a regular basis: it was only necessary once every year or so. The applicant said she also worked overtime on a training exercise on 30 November 2002. That work was separate from the work she did in the archives on the same day.

12.     The applicant did not do any paid overtime work in the weeks before her accident in December 2002. She says (and Ms Crawford confirmed) that it was not a busy time in her section of the ATO during that period. There was not enough work to justify payments of overtime.

The legislation

13. Section 8 of the SRCA deals with the calculation of normal weekly earnings. Section 8 states:

(1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:

(NH  x  RP) + A

where:

NH

is the average number of hours worked in each week by the employee in his or her employment during the relevant period;

RP

is the employee's average hourly ordinary time rate of pay during that period; and

A

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, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.

(2) Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:

NH  x  OR

where:

NH

is the average number of hours of overtime worked in each week by the employee in his or her employment during the relevant period; and

OR

is the employee's average hourly overtime rate of pay during that period.

14. The respondent’s original decision (T57) said the applicant was not required to undertake overtime, and it was not regular. On that basis, such overtime as the applicant was working prior to her accident could not be taken into account under s 8(2). The respondent’s reconsideration of the matter noted the overtime was “sporadic, seemingly on an as ‘needed basis’ ” (T62 at 110).

15.     In Re Zarb and Comcare (1997) 48 ALD 718 Deputy President Burns discussed the ordinary meaning of the term ‘regular’ in subsection 8(2). He stated (at para 42):

The Tribunal is of the view that “regular” means a uniform or symmetrical pattern over time which can be described as usual or customary.  To establish whether the overtime of an employee occurs on a “regular” basis, one would look to the overtime worked during the relevant period to determine whether the pattern is “uniform or symmetrical”.

16.     The term ‘required’ was given its ordinary interpretation to mean “the imposition, by the employer in an authoritative fashion, of an obligation upon the employee” to work overtime on a regular basis (at para 34).

17.     The evidence in this case is that the applicant accrued overtime on ten occasions during 2002. The applicant’s personal circumstances changed from May 2002 which permitted her to work overtime more often. But her evidence makes it clear that working overtime was voluntary. She was not obliged or ‘required’ to undertake the additional work – as evidenced by the fact she undertook little overtime work prior to the middle of 2002 because of her family circumstances.

18. The evidence also makes it clear the applicant did not undertake overtime work regularly. There is no pattern to the hours of overtime work. The distribution of hours and the evidence of the applicant and Ms Crawford suggest that the applicant worked overtime on an ad hoc basis. That is not enough to satisfy the requirements of s 8(2).

19. The respondent conceded at the hearing that it was also possible to take account of overtime under s 8(1). The decision of the Federal Court in Pires changes that. Jacobson J made it clear (at paragraph 38) that:

“[o]rdinary, non-overtime hours, are included in the formula under s 8(1) and overtime hours, calculated at the ‘average hourly rate of pay’ are then added [pursuant to s 8(2)].”

20.     His Honour referred to the Second reading Speech accompanying the introduction of the SRCA and explained (at paragraph 57):

There is nothing in this to suggest that irregular or non-required overtime hours should be included in the calculation.

21. I have already accepted that the applicant’s overtime could not be taken into account under s 8(2) because it was not regular or required. It cannot be taken into account under s 8(1). It follows the applicant’s overtime cannot be included in any calculation for incapacity payments.

Conclusion

22.The Tribunal affirms the decision under review.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:      Sam J Appleton

Dates of Hearing  4 May 2005
  15 June 2005
Date of Decision  27 September 2005

The applicant appeared in person.

The respondent was represented by Mr Clark of counsel.