McGree and Comcare (Compensation)

This matter concerned two applications before Deputy K Bean P concerning the calculation of normal weekly earnings (NWE) for two Commonwealth employees who had suffered injuries. The core dispute revolved around how their NWE should be calculated following a transfer of hospital ownership from the Commonwealth to the South Australian Government in 1995, and their subsequent re-appointment to the Australian Public Service (APS). The applicants argued that their NWE should continue to be calculated with reference to shift allowances and increments applicable to their nursing roles, even after their employment circumstances changed.

The court was required to determine the correct method for calculating the applicants' NWE under section 8 of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), particularly in light of their cessation and subsequent resumption of Commonwealth employment. Specifically, the court had to consider whether NWE should be calculated based on what the applicants would have earned had they continued in their original nursing roles, including shift allowances and increments, or if it should be adjusted based on their new APS classifications and the absence of shift work. The court also considered the application of subsections 8(6) and 8(10) of the SRC Act in this context.

Deputy K Bean P reasoned that subsections 8(6) and 8(10) of the SRC Act directed the calculation of NWE by reference to what the applicants would have earned had they remained employed by the Commonwealth in their original capacity and not been injured. The court accepted the respondent's submission that if the applicants had continued as nurses, they would have been transferred to APS 4 classifications from April 1998, without access to shift allowances. Consequently, the court found that NWE should be calculated without reference to shift allowances after that date and that increments applicable to their former nursing roles were not to be considered.

The decisions under review in both applications were set aside and remitted to the respondent for re-determination of the applicants' NWE amounts between 11 December 1995 and 1 July 2013, in accordance with the Tribunal's reasons.