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…