Mason and John Holland Pty Ltd (Compensation)
[2018] AATA 415
•7 March 2018
Mason and John Holland Pty Ltd (Compensation) [2018] AATA 415 (7 March 2018)
Division:GENERAL DIVISION
File Number: 2017/5122 and 2017/5123
Re:Edward Mason
APPLICANT
AndJohn Holland Pty Ltd
RESPONDENT
DECISION
Tribunal:Deputy President S Boyle
Date:7 March 2018
Place:Perth
The Tribunal refuses to grant the Applicant’s applications for an extension of time for review of the reviewable decisions both dated 9 December 2016.
...[sgd].....................................................................
Deputy President S Boyle
CATCHWORDS
Weekly incapacity entitlements – extension of time application – factors that are relevant when considering an application for extension of time – little chance of success – lack of explanation of delay - need to prevent disruption to established practices - application dismissed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 –ss 29(2), ss 29(7)
Safety, Rehabilitation and Compensation Act 1988 – ss 8(10) – s 19 – ss 62(1) – ss 65(4)
CASES
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563
Comcare v A’Hearn (1993) 45 FCR 441
Comcare v Simmons [2014] FCAFC 4
DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377
Dix v Crimes Compensation Tribunal [1993] 1 VR 297
Doyle v Chief of Staff (1982) 42 ALR 283
Federal Commissioner of Taxation v Brown [1999] FCA 1198
Federal Commissioner of Taxation v Salenger (1988) 19 FCR 378
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
John Holland Group Pty Ltd v Robertson [2010] FCAFC 88; (2010) 185 FCR 566
Lucic v Nolan (1982) 45 ALR 411
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Re Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1
Smith and John Holland Pty Ltd [2013] AATA 73
Wedesweiller v Cole (1983) 47 ALR 528
Zizza v Federal Commissioner of Taxation [1999] FCA 848
REASONS FOR DECISION
Deputy President S Boyle
7 March 2018
THE APPLICATIONS
The Applicant has made applications in each of the matters for extensions of time to make applications for a review of two decisions made by the Respondent on 9 December 2016 being determinations on the Respondent’s own motion under s 62(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
MATERIALS BEFORE THE TRIBUNAL
The following material was before the Tribunal:
(a)applications for Extension of Time for Making an Application for Review of Decisions dated 9 December 2016 filed 6 September 2017;
(b)Applicant’s Outline of Submissions dated 14 November 2017;
(c)Applicant’s Further Submissions dated 18 December 2017;
(d)copies of reviewable decisions made by Respondent in relation to the Applicant’s entitlement to compensation under the SRC Act dated 9 December 2016;
(e)Respondent’s Notices of Opposing Applications for Extension of Time and Outline of Submissions opposing extension of time applications dated 27 September 2017;
(f)Respondent’s Supplementary Outline of Submissions dated 20 December 2017; and
(g)Respondent’s bundle of documentation relating to the extension of time application.
Directions were made by Deputy President Dr C Kendall on 14 December 2017 for the application for the extension of time to be heard on 22 December 2017. On 20 December 2017 the Tribunal received a letter from the Applicant’s lawyers, Chapmans Barristers & Solicitors, advising that their offices were closed from 20 December 2017 and that:
…accordingly we will be unable to attend the hearing. Accordingly, we would be amicable to an adjournment to the next available day in the New Year as previously stated.
Otherwise, the plaintiff (sic) does not believe he needs to make further submissions with regard to the error of law in response to the respondent’s further submissions.
The application for the adjournment of the hearing was opposed by the Respondent. The Tribunal was not prepared to adjourn the hearing, noting the Applicant’s lawyer’s advice that all the submissions that the Applicant intended to make were already before the Tribunal. The issues for determination were clearly covered by the parties’ respective submissions.
The applications have been dealt with together and were heard by Deputy President Boyle on 22 December 2017. The Respondent was represented by Mr Matthew Hawker of Sparke Helmore Lawyers who appeared by telephone.
BACKGROUND
Application 2017/5123 - The first reviewable decision (Claim number WC12100376)
The first reviewable decision dated 9 December 2016, the Respondent reconsidered on its own motion, determinations made during the period from 23 May 2013 to 15 March 2016 relating to the calculation of the Applicant’s weekly incapacity entitlements under s 19 of the SRC Act in relation to an accepted “scapholunate joint reconstruction” condition sustained on 9 May 2013. The assessment identified a comparable employee which provided a more fair and reasonable assessment of the Applicant’s Normal Weekly Earnings (NWE) and Normal Weekly Hours (NWH). On completion of the review, an additional amount of $31,568.35 gross was payable to the Applicant.
Application 2017/5122 – The second reviewable decision (Claim number WC131000330)
The second reviewable decision dated 9 December 2016, the Respondent reconsidered on its own motion, determinations made during the period from 2 May 2014 to 8 November 2016 relating to the calculation of the Applicant’s weekly incapacity entitlements under s 19 of the SRC Act in relation to an accepted “aggravation of osteoarthrosis ankle joint” sustained on 1 April 2014. The assessment identified a comparable employee which provided a more fair and reasonable assessment of the applicant’s NWE and NWH. It also identified that as at 1 September 2016, there was no further work available for a CW1-T3 to perform on the Wheatstone Construction Village Buildings & Utilities Project and therefore applied s 8(10) of the SRC Act as at 1 September 2016 to reduce the Applicant’s NWE as at that date. On completion of the review, taking into account an overpayment of $17,377.89, there remained an additional amount of $3,176.11 gross which was payable to the Applicant.
Notwithstanding that the Application for Extension of Time for Making an application for Review of Decision lodged by the Applicant on 6 September 2017 related to both Application 2017/5122 (relating to WC131000330) and Application 2017/5123 (relating to WC12100376), the Applicant now only seeks an extension of time in respect of Application 2017/5122 (paragraph 6 of Applicant’s Outline of Submissions and paragraph 1 of the Applicant’s Further submissions).
The Applicant states in his application for extension of time that he received the Respondent’s decision (relevant to claim number WC13100030) on 9 December 2016.
THE LAW
Under section 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act), an application for review must generally be lodged 28 days after the applicant has received notice of the decision.
Section 65(4) of the SRC Act extends the period of 28 days in section 29(2) of the AAT Act to 60 days.
Section 29(7) of the AAT Act permits the Tribunal to “extend the time for the making by that person of an application to the Tribunal ... if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”.
In Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley), the Federal Court set out a series of factors that might be of relevance under similar provisions in the judicial review context. The Tribunal considers the principles set out in those cases to be applicable to this matter. See also: Brown v Federal Commissioner of Taxation [1999] FCA 563 (Brown).
In Hunter Valley, Wilcox J at [348] pointed out that the “prescribed period of twenty-eight days is not to be ignored... Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained...”. In Brown, Hill J stated, at [59], that in the taxation context, the Tribunal should be “…guided by what the justice of the case requires”. In determining the question of an extension of time, the Tribunal should weigh together all relevant factors: Zizza v Federal Commissioner of Taxation [1999] FCA 848 (per Katz J).
There is a thorough and helpful review of the authorities by Deputy President Forgie in DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377 (DHLD) at paragraphs [11] and [37] to [49].
The authorities establish that a range of considerations must be taken into account when exercising the discretion to extend time for an application to be made. No one consideration has precedence or is in itself determinative. The factors include:
(a)It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416) (Lucic).
(b)It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is, however, to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn (1993) 45 FCR 441 and Dix v Crimes Compensation Tribunal [1993] 1 VR 297 at 302).
(c)Action taken by the applicant other than by making an application to the court (Tribunal) is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287)(Doyle).
(d)Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at 287 and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541).
(e)The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at 416).
(f)The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at 417).
(g)Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s (tribunal’s) discretion (Wedesweiller v Cole (1983) 47 ALR 528).
Deputy President Forgie sets out in paragraphs [40] to [44] of the decision in DHLD a more detailed review of the cases dealing with the relevance of the apparent strength of the substantive claim. The Deputy President cites the comment made by the Full Court in Federal Commissioner of Taxation v Brown [1999] FCA 1198 at [28] that:
We wish to make it clear, however, that the AAT is not precluded from taking into account the apparent strength or weakness of taxpayer’s case, when determining whether an extension of time should be granted, if the overall circumstances are such that the apparent strength or weakness of that case is properly to be regarded as a material consideration.
THE ISSUE
The issue in this application is singular. The Applicant identifies the only issue as:
Whether the Tribunal ought to extend the time for making an application for review of the decision made on 9 December 2016, pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975…
(paragraph 7 of the Applicant’s Outline of Submissions and paragraph 2 of the Applicant’s Further Submissions)
The Tribunal agrees that the sole issue for determination is that identified by the Applicant.
CONSIDERATION
The delay
It is not disputed that the Applicant did not file the application for review of the decision within the stipulated time.
The combined effect of s 29(2) of the AAT Act and s 65(4) of the SRC Act is that the time for filing an application for review is 60 days after the applicant received notice of the decision.
The Applicant’s Application for Review of Decision to the Tribunal states that the Respondent’s decision was received on 9 December 2016. The Applicant was therefore required to file an application for review of that decision by 7 February 2017.
The Applicant filed the application for review on 18 August 2017. Accordingly, the Applicant’s application for review is 193 days out of time. By applications filed on 6 September 2017 the Applicant made applications for extensions of time to make the applications for review.
The Applicant did not provide any explanation for the delay in lodging the application for review. In the Applicant’s Outline of Submissions the Applicant submits:
14 The legislation does not allow this alteration as concluded by the respondent and such an interpretation is not available under any reading of these provisions, and accordingly, the applicant’s application for Review is guaranteed of success.
15. The respondent has further deviated from the legislative framework by suggesting that the construction work the applicant was undertaking at the time of his injury had concluded (see page 3 of the Reviewable Decision) and suggested this was relevant to the decision when it was manifestly an irrelevant consideration.
16. The applicant accepts that the application should have gone in earlier, and makes no submissions as to the length of delay.
(emphasis added)
Not only did the Applicant make “no submissions as to the length of delay”, but he made no submissions at all in relation to delay and, more materially, provided no explanation for the delay. While the legal principles emerging from the cases set out above, in particular that set out in paragraph 16(b), are to the effect that it is not a pre-condition to an extension of time that an acceptable explanation for the delay is provided, the reason for the delay and the extent of the delay are clearly matters that are to be taken into account in the exercise of the discretion as to whether to grant an extension of time.
On any assessment, a delay of 193 days over and above the 60 days allowed for the making of an application for review of a decision is very significant and is a factor that weighs against the exercise of the Tribunal’s discretion to grant an extension of time. Similarly, the complete lack of any explanation for the very significant delay weighs against the exercise of the discretion in favour of the Applicant.
Applicant rested on his rights
The Tribunal refers to the principle set out at paragraph 16(c) above. The Respondent in its outline of submissions of 27 September 2017 submits as follows:
4.9 There is a distinction to be made between the case of a person who has continued to make the decision-maker aware that he contests the finality of the decision (who has not ‘rested on his rights’) and a case where the decision-maker was allowed to believe that the matter was finally concluded.
4.10 For the entirety of the prescribed time period (60 days) since 9 December 2016, there was no indication that the applicant disputed the reviewable decisions. To the contrary, the respondent’s file notes indicate that on 12 December 2016 the applicant advised the relevant claims manager that, after the pay increases and the section 8(10) reduction points were explained to him by the claims manager, he indicated he was happy and understood the reduction.
4.11 After the expiration of the prescribed time period, the respondent notes the applicant’s legal representatives then wrote to the respondent, by letter dated 15 February 2017, contending that the respondent had ‘unlawfully’ reduced the applicant’s weekly compensation and an application to the AAT ‘will now be lodged’ in relation to ‘your letter of 9 December 2016’. The letter did not particularise on what basis it was contended that the reduction was ‘unlawful’.
4.12 There is no material before the Tribunal to indicate an application to the AAT was lodged at that time. There is no evidence of any acceptable explanation as to the further delay following that letter in lodging the applications. Subsequent to that letter, the applicant’s legal representatives continued to correspond with the respondent in relation to other matters relating to the applicant.
4.13 Given many months passed since the 15 February 2017 letter and the expiration of the prescribed time period, the respondent was entitled to presume that the applicant had decided not to pursue an application with the AAT in respect of the reviewable decision/s of 9 December 2016. The respondent continued to determine and pay compensation on this basis, and in fact, had paid the additional balance owing to the applicant by reason of the reviewable decisions at the time they were issued.
The Applicant did not respond to these matters in either his Outline of Submissions of 14 November 2017 or his Further Submissions of 18 December 2017. There is, in the Tribunal’s view, merit in the points made by the Respondent. Again, the Applicant has not even attempted to rebut or respond to the very valid points made by the Respondent and again this weighs against the exercise of the discretion to grant the extension of time.
Prejudice
In relation to the prejudice that would be caused if the extension of time were granted, the respondent in its Outline of Submissions of 27 November 2017 argued as follows:
4.14 The respondent points to the prejudice inherent in a lengthy delay. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551, McHugh J said:
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates". Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
4.15 In any event, even if there was an absence of prejudice, the mere absence of prejudice is not enough to justify the grant of an extension.
Again, the Applicant fails to respond to these points in either his Outline of Submissions or Further Submissions other than the single reference in paragraph 17 of the Outline of Submissions to a “lack of prejudice suffered by the respondent”. That claim is belied by the uncontroverted statements in the Respondent’s Outline of Submissions quoted above.
Further, the Applicant fails to address at all the public interest prejudice that is caused in the administration of justice by parties such as the Applicant simply ignoring legislative timeframes. In this regard the Tribunal notes the obvious and accepted public interest in the finality of decision-making, and the need to prevent disruption to established practices (see Re Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1).
The prejudice to the Respondent and the general public interest prejudice, neither of which is addressed by the Applicant, weigh against the exercise of the discretion in favour of granting the extension of time.
The merits of the substantial application
The Applicant appears to rely solely on the fact, as he sees it, that his substantive application “is guaranteed of success” (emphasis added) (paragraph 14 of the Applicant’s Outline of Submissions).
Section 8(10) of the SRC Act provides:
(10) If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:
(a) where the employee continues to be employed by the Commonwealth or a licensed corporation--the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or
(b) where the employee has ceased to be employed by the Commonwealth or a licensed corporation--whichever is the greater of the following amounts:
(i) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;
(ii) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;
the amount so calculated shall be reduced by the amount of the excess.
The Applicant’s case proceeds on a fundamental misunderstanding of the operation of subsection 8(10) of the SRC Act, in particular subsection 8(10)(b) of the SRC Act, which is the applicable subsection in this matter. The Respondent’s Supplementary Outline of Submissions dated 20 December 2017 summarises the error as follows:
3.2 The respondent notes that it is now clear the applicant advances the issue of ‘merits’ only on the basis of the correct legal interpretation of s 8(10)(b) of the SRC Act.
3.3 The substance of the applicant’s case on the merits is set out at paragraphs [6], [8] and [9] of the applicant’s further written submissions. The applicant has advanced the position by reference to two key legal arguments:
(a)First, the correct interpretation of s 8(10)(b) is that “the amount to be reduced is the excess between sub-section (i) and sub-section(ii)” – that is, the amount the applicant would have earned at the date of injury and the amount the applicant would have earned at the date on which the employment ceased; and
(b)Second, “The Respondent has attempted to interpret the legislation as allowing it to reduce the Applicant’s payments because the corporation ceased, which is manifestly incorrect because whether or not the corporation has ceased is irrelevant to the calculation of normal weekly earnings” and that “this misapplication of the law has caused the Applicant to lose $2,162.76 per week”.
3.4 The applicant’s contention is misconceived.
3.5 In short, for the reasons discussed below:
(a)(a) First, the applicant’s contended interpretation of s 8(10)(b) is contrary to Full Federal Court authority which addressed the correct interpretation of s 8(10)(b). Section 8(10)(b) assumes continuation of either the pre-injury employment or other actual employment undertaken subsequent to the injury with the same employer (whichever is the greater) for the purpose of comparison and does not direct a comparison only of figures as at the date of injury and the date on which the employment ceased; and
(b)(b) Second, the respondent did not apply s 8(10)(b) on the basis that “the corporation ceased” but rather by reference to completion of all work for a CW1-T3 (concrete workers) on the Wheatstone Project. Again, the respondent’s approach is consistent with the Full Federal Court authority.
3.6 The decision under review applied s 8(10)(b) of the SRC Act to reduce the applicant’s NWE by the amount of overtime and allowances the applicant had been receiving when work was available for a CW1-T3 on the Wheatstone Project. This was on the basis that, at least as at the date of the reduction of 1 September 2016, work was no longer available for a CW1-T3 (concrete worker) on the relevant Project. It had nothing to do with the status of the respondent corporation…
The Respondent points out that the correct statutory interpretation of subsection 8(10) of the SRC Act has been resolved by the Full Court of the Federal Court for a number of years since the decision of that Court in John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566; [2010] FCAFC 88 at [74]-[76] (John Holland v Robertson).
The Respondent cites the following passages from the judgment of Dowsett J in John Holland v Robertson (paragraph 3.10 of the Respondent’s Supplementary Outline of Submissions):
[74] Clearly, s 8(10) seeks to limit the compensation payable to an injured employee by reference to his or her notional earnings derived from employment with the same employer had he or she not been injured. Section 8(10)(a) demands a notional enquiry which commences with the employee’s actual current employment. The enquiry is as to his or her earnings in that employment had he or she not been injured. Such enquiry would involve consideration of how, in those circumstances, the employee would have been employed, including consideration of whether he or she would have continued to perform the same duties as were being performed at the time of the accident.
[75] Section 8(10)(b) involves different considerations. It assumes continuation of either the pre-injury employment or other actual employment undertaken subsequent to the injury with the same employer. The decision-maker is not directed to assume that the employee was not incapacitated. The enquiry pursuant to s 8(10)(b)(ii) involves only consideration of the employee’s actual employment at the date at which he or she ceased to be employed by the employer and of the earnings which would have been derived had the employee been in such employment in the week for which he or she is to be compensated. It seems unlikely that the basis for comparison was meant to be anything other than the actual earnings, adjusted to reflect changes in circumstances between the cessation of employment and the date of calculation. In particular, it seems unlikely that it was intended that the actual terms of employment were to be ignored, and the calculation based on the notional employment at rates payable to persons in a particular trade, calling or classification.
[76] I also see no reason for requiring such a notional exercise in connection with s 8(10)(b)(i). The section contemplates the notional continuation of the previous employment. The purpose of the notional extension is to identify likely earnings in the event that such employment had been so extended. The section does not contemplate the notional formulation of conditions of employment which had never existed. The decision-maker must simply take the terms of employment applicable to the employee at the date of injury and enquire as to likely earnings pursuant to those terms as at the date of calculation.
(Original emphasis)
The Full Court’s decision in John Holland v Robertson has also been subsequently applied by the tribunal in Smith and John Holland Pty Ltd [2013] AATA 73 (Smith). In Smith, Deputy President Hotop addressed this at [78] to [84]:
78. The Tribunal accepts, in substance, the respondent’s submissions. Although the applicant submitted that the remarks of Dowsett J in John Holland (set out in paragraph 75 above) were obiter and, furthermore, implicitly submitted that Dowsett J’s analysis should not be adopted by the Tribunal (see paras 40–42 of the applicant’s submissions), the Tribunal accepts that it should apply the relevant law, namely, s 8(10)(b) of the SRC Act, as expounded by Dowsett J (with whom Spender J agreed) in John Holland, even if Dowsett J’s exposition of the relevant legal principles was obiter: see Commissioner of Taxation v Salenger (1988) 19 FCR 378 at 387–388. Moreover, the Tribunal agrees with the analysis contained in the abovementioned dicta of Dowsett J in John Holland and it respectfully adopts that analysis.
79. Applying the abovementioned principles enunciated in John Holland, the task of the Tribunal, pursuant to s 8(10)(b) of the SRC Act, is to determine, on the basis of the terms and conditions of the applicant’s employment by the respondent, the weekly amount of earnings that the applicant would have received if he had continued to be employed by the respondent as a “tradesperson” performing the duties of a boilermaker/welder on the Bluewaters Power Station Project (“the relevant employment”).
80. The terms and conditions of the applicant’s employment by the respondent were, at all material times, those set out in the relevant contract of employment (Exhibit R1) and the John Holland Pty Ltd Bluewaters On Site Agreement 2008 (“the Bluewaters Agreement”) (Exhibit R2). Those terms and conditions provided for, inter alia, the payment of a base weekly wage, the payment of overtime, and the payment of certain “additional allowances” (including Meal Allowance, Site Allowance and Travel Allowance) and “Special Rates”.
81. The matter in dispute (as appears from the parties’ abovementioned written submissions) is whether the applicant would have received overtime payments and/or allowances, as provided for in the Bluewaters Agreement, if he had continued to be employed by the respondent in the relevant employment.
82. As regards overtime, it is clear from both the relevant contract of employment (Exhibit R1), at para 11, and the Bluewaters Agreement (Exhibit R2) at subclause 3.4, that the applicant had no entitlement to overtime and that overtime was assigned solely on the basis of “specific work requirements’. That being the case, and given the basis on which the applicant’s employment by the respondent ceased on 8 June 2009 – namely, the completion of the task assigned to him on the Bluewaters Power Station Project (see para 7 of the contract of employment (Exhibit R1) and Exhibit R3) – and the impending cessation of employment of all “tradespersons” on the Project for similar reasons (see Exhibit R24 which indicates, as stated in para 5.17 of the respondent’s submissions, that the employment of tradespersons by the respondent on the Project finally ceased on 26 June 2009), the Tribunal cannot be satisfied that the applicant would have been assigned any overtime or that he would have received any overtime payments if he had continued to be employed by the respondent in the relevant employment.
83. Similar considerations apply to the various allowances whose payment is provided for in the Bluewaters Agreement because, like overtime, payment of those allowances was conditional on the fulfilment of specified work requirements (see subclauses 3.11, 3.15 of the Bluewaters Agreement and Appendix A to that Agreement (Exhibit R2)). Accordingly, for reasons similar to those expressed in paragraph 82 above, the Tribunal likewise cannot be satisfied that the applicant would have received any of those allowances if he had continued to be employed by the respondent in the relevant employment.
84. The Tribunal concludes, therefore, that, by reason of the application of s 8(10)(b) of the SRC Act, the applicant’s NWE, for the purpose of calculating the amount of compensation payable to him in accordance with s 19 of the SRC Act, is reduced to his base weekly wage which, as calculated by the respondent in relation to the relevant period, was $1,149.84 (see para 5.20 of the respondent’s submissions and Attachment A thereto).
On the evidence presented by the Respondent (Bundle of documents regarding the extension of time, received by the Tribunal on 11 December 2017 (R3)), the relevant facts are that:
(a)On 22 April 2013 the Applicant was offered employment commencing on 29 April 2013 at the classification level of CW1/TG3 – Concrete Worker, on the Wheatstone Project (R3, pp 66 – 68). The Applicant’s employment start date was changed to 6 May 2013 (R3, pp 77);
(b)The agreement which set out when overtime and allowances were payable was the Wheatstone Project Agreement 2012 (the Agreement) (R3, pp 1 – 65) relevant provisions include:
(i)clause 13 of the Agreement states, “…where relevant, an Employee shall be paid the special allowance applicable to the work being performed by them as specified in Appendix 2 – Special Allowances of this Agreement…”;
(ii)clause 16(3) of the Agreement states that “…Project Working Hours consists of Ordinary Hours, RDO accrual hours and Regular Scheduled Overtime…”;
(iii)clause 16(7) of the Agreement states that “…the company will determine the actual method of working Project Working Hours which best suits the operational requirements…”; and
(iv)clause 19(1) of the Agreement states that “…the company may withdraw Regular Scheduled Overtime on any day where the Employee(s) concerned have been stood down because… or any stoppage of work by any cause for which the Company cannot be reasonably held responsible…”;
(c)The classification structure was set out at Appendix 1 of the Agreement and the CW1-TG3 included relevantly, “concrete workers”;
(d)On 10 June 2016 the Applicant’s role of CW1-T3 was no longer required and was made reductant effective 17 June 2016 (R3, pp 78 and p 86);
(e)Prior to September 2016, concrete works were actually completed in January 2016 with minor defect works completed in February 2016 (R3, pp 86). In July 2016, the last building was completed and handed over to the client. In August 2016, the offices and any remaining machinery on site were demobilised. In September 2016, the Project had completed demobilisation with only punchlist items being completed (R3, pp 86);
(f)Accordingly, by the determined date of the subsection 8(10)(b) of the SRC Act reduction of the NWE on 1 September 2016, there was no work available in the Applicant’s classification (CW1 – T3) on the Wheatstone Project (R3, p 85 – 86) and therefore no overtime available nor any allowances would therefore be payable to the Applicant had his employment continued to 1 September 2016 and beyond; and
(g)Given the employment of CW1-T3 concrete workers by the Respondent on the Project ceased prior to, but at least by 1 September 2016, the Applicant would not have been assigned any overtime nor would he have received any overtime payments if he had continued to be employed by the Respondent in the relevant employment under the Agreement. Similar considerations apply to the allowances because, like overtime, payment of those allowances was conditional on work being performed on site for the concrete worker.
Although the Respondent could have applied subsection 8(10) of the SRC Act at an earlier date than 1 September 2016, it was clearly the case that at least by 1 September 2016, there was no work available for any worker engaged as a CW1 (in fact, the last CW1-T3 concrete labourer finished on 17 November 2015 (R3, pp 88) and the last CW1 finished on 4 May 2016 (R3, pp 90)).
The Applicant’s claim for review is based on a misunderstanding of the operation of subsection 8(10)(b) of the SRC Act which is crystalized in paragraphs 6 and 7 of his Further Submissions in which he argues:
6. Following s 8(10)(b), the amount to be reduced is the excess between sub-section (i) and sub-section (ii). Subsection (i) is calculated as the amount per week the employee would have received at the date of injury, subsection (ii) is calculated as the amount per week the employee would have received at the date on which employment ceased. (Original emphasis).
7. At the date of the injury the Applicant would be receiving $3,509.02. At the date at which the employment ceased the employee would be receiving $3,509.02. The amount of excess is thereby $0.00.
That is not what subsection 8(10)(b) of the SRC Act says. What subsection 8(10)(b) of the SRC Act is saying is that where the employee has ceased to be employed, he will receive what he would have been receiving at the calculation date if he was still employed in the role that he was employed in at either the date of the injury or the date that he ceased employment, whichever is the better for him. The policy behind the provision is fairly self-evident. The purpose of the legislation is to put the worker in the financial position he would have been in if he had been able to keep working in the position that he was working in at the time of the injury or, if his role had changed after the time of the injury, the role he was working in at the time he ceased to be employed if that role was better (i.e. higher paid).
The words in subsection 8(10)(b)(i) of the SRC Act “at the date of the injury” and in subsection 8(10)(b)(ii) of the SRC Act “at the date on which the employment…ceased”, do not relate to what the worker was earning at those times, but to the employment that the worker was employed in at those times. It is identifying the role on which the later weekly earnings figure is to be based.
In the Applicant’s case the employment that the Applicant was engaged in at the time of the injury was as a CW1-T3 (concrete worker) on the Wheatstone Project subject to the Agreement that covered that project. The Wheatstone Project was always going to come to an end at which time people employed as CW1-T3s, or any other role, would no longer receive the high rates which had been paid up to that time on that project pursuant to the Agreement. Had the Applicant not been injured he would have been employed as CW1-T3 up to September 2016 (at the latest) but after that role disappeared with the completion of the concrete work on the project, the Applicant would have been returned to ordinary rates of pay for that type of worker. That is the calculation that the Respondent undertook and to which the Applicant objects.
Further, the Applicant’s interpretation of subsection 8(10)(b) of the SRC Act is not only contrary to the authorities that have considered and applied this subsection, but the Applicant’s interpretation would render the subsection pointless. On the Applicant’s argument, a worker simply stays on the salary that he was on at the time of his injury, or at the time he ceased employment if that was better paid, irrespective of whether the role that he was engaged in still exists. Unlike his work companions who were not injured but whose work roles have ceased to exist, and who therefore are not receiving the historical rates of pay, the Applicant continues to get paid at those historical rates notwithstanding that if he had not been injured he would not be receiving payment at those rates.
The Tribunal is of the view that the exercise undertaken by the Respondent in calculating the reduction in the Applicant’s payments was undertaken in accordance with subsection 8(10)(b) of the SRC Act. Accordingly, the Tribunal is satisfied that the substantive application has little prospects of success.
Taking into account:
(a)the lack of any, let alone any adequate, explanation for the delay in making the application;
(b)the length of the delay (193 days out of time in the context of the 60 day prescribed period);
(c)the weakness of the Applicant’s substantive application; and
(d)the need to prevent disruption to established practices;
the Tribunal is satisfied that it should not exercise its discretion to extend time for the Applicant to make the application for review of the decision of 9 December 2016.
DECISION
The Applicant’s application for an extension of time for review of the reviewable decisions of 9 December 2016 is refused.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle
....[sgd]..................................................................
Administrative Assistant - Legal
Dated: 7 March 2018
Date of hearing: 22 December 2017 Solicitors for the Applicant: Chapmans Barristers & Solicitors Representative for the Respondent: Mr Matthew Hawker Solicitors for the Respondent: Sparke Helmore Lawyers
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