Menz and Boarder Express Pty Ltd
[2014] AATA 266
•5 May 2014
[2014] AATA 266
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/2758
Re
James Menz
APPLICANT
And
Boarder Express Pty Ltd
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 5 May 2014 Place Canberra The Tribunal does not have jurisdiction to hear this matter.
.....................[sgd]......................
RM Creyke, Senior Member
Catchwords
COMPENSATION – whether Tribunal had jurisdiction – oral decision – request for reasons - Tribunal has already decided matters raised in application.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) section 8, 9 and 19.
REASONS FOR INTERLOCUTORY DECISION
RM Creyke, Senior Member
Mr James Menz has requested reasons for the decision of the Tribunal that it had no jurisdiction to hear a matter raised in this application.
The request for reasons was made on behalf of Mr Menz by Ms Menz in an email dated 8 April 2014.
Background
Mr Menz has requested reasons in writing relating to findings as to the correctness of the calculations of his incapacity payments under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).
Mr Menz considered it was unfair that in working out his incapacity payments, he is penalised if he worked less than normal weekly hours as assessed, but is not paid for hours worked in excess of normal weekly hours as assessed.
Mr Menz is an employee of Border Express where he worked as a line haul, that is, long distance, truck driver. His shoulder was injured in an accident at work on 3 May 2008. Subsequently on 2 December 2010, liability was also accepted for a secondary psychological condition.
There have been multiple applications to the Tribunal in relation to the eligibility for, and calculation of, Mr Menz’s compensation payments. On 25 February 2010, in a consent decision approved by the Tribunal, the normal weekly hours’ component of the formula for determining incapacity payments under the Act was decided to be 58.16 hours per week. The correctness of this calculation has not been challenged before the Federal Court.
In a further decision of the Tribunal on 17 May 2013, the normal weekly earnings element of the formula in section 19 was also settled, including that the relevant period should be twelve weeks prior to the date of injury, rather than the standard two weeks.
Subsequently Border Express have made adjustments to the amounts payable as incapacity payments:
· to take account of increases in the relevant award applicable to Mr Menz as required by section 8(9) and (9A) of the Act (Matter 2013/6003);
· to increase the rate payable to include a dangerous goods allowance payable under the relevant award, namely, the Transport Workers Long Distance Drivers Award 2006 clause 20.6 and to confirm that the ‘relevant period’ for the purposes of section 8 of the Act was the 12 week period prior to the date of injury (Matter 2013/1890); and
· to increase Mr Menz’s incapacity payments in accordance with section 19(3) of the Act, the provision which provides an adjustment percentage to take account of the percentage of hours worked during a working week (Matter 2013/2758).
Applications for review in these matters were dismissed on 6 March 2014 on the grounds that the Tribunal did not have jurisdiction to consider matters involved in these applications.
An exception, solely in relation to the component of the calculation relating to ‘Comcare make-up pay’, applied in relation to Matter 2013/2758. The calculation over the relevant period was that the amount of ‘Comcare make-up pay’ amounted to $72.82. The Tribunal excepted this part of the calculation under section 19 because the spread-sheets provided were couched in a form which did not align with the formulae in the Act, making it difficult for the Tribunal to be satisfied that Border Express had made the correct calculations.
On 13 March 2014, Border Express provided two further documents:
·Spreadsheet prepared pursuant to directions dated 26 March 2013 (hard copy); and
·Spreadsheet prepared pursuant to direction dated 26 March 2014 (Excel spreadsheet).
Annotations were made in the three columns to the right of the spreadsheet to better enable the Tribunal to reconcile the figures in the spreadsheets with the terms of section 19.
After an examination of the two spreadsheets, the Tribunal was satisfied of the correctness of the calculation of the amount of ‘Comcare make-up pay’ as $72.82.
At a telephone directions hearing on 8 April 2014, the Tribunal advised Ms Menz for Mr Menz, and Border Express, that it was so satisfied and the final outstanding issue in Matter 2013/2758 was dismissed on 11 April 2014 on the ground that the Tribunal had no jurisdiction. Ms Menz on Mr Menz’s behalf has requested reasons for that finding.
Section 19 of the Act provides a formula for deciding the amount of compensation for incapacity payable to an employment-injured employee. The section provides for a calculation of the person’s normal weekly earnings taking into account the ability to earn of the employee (Act section 19(2)). A person may be wholly or partially incapacitated for work following a work-related injury. Mr Menz, for a period after the injury, was partially incapacitated for work. Ms Menz has demonstrated that she is familiar with the terms of the Act so these reasons will focus on the substance, rather than the detail of the particular provisions.
The calculations in the formula in section 19(2) are based on the average hours worked, including overtime, by the employee for a period described as ‘the relevant period’. The relevant period is defined in section 9 of the Act for the purposes of calculating normal weekly earnings. That period is two weeks prior to the date of injury unless the period of two weeks ‘would not fairly represent the weekly rate at which the employee was being paid’, in which event another period may be chosen.
In the case of Mr Menz, it was decided, given the variable nature of his employment as a long distance driver, that the relevant period needed to be a longer period and twelve weeks was chosen and approved by the Tribunal in its decision on 17 May 2013. No further review to the Federal Court was sought of the Tribunal’s decision relating to the length of the relevant period.
The formula in section 19(2) of the Act also takes into account ‘normal weekly earnings’. Section 8 of the Act defines ‘normal weekly earnings’. This too is based on a formula in section 8(1) which takes into account the ‘average hourly … rate of pay’ of the employee, the ‘average number of hours worked in each week by the employee … during the relevant period’, the ‘average amount of any allowance payable to the employee’ and, if the employee is ‘required to work overtime’, the ‘average hourly overtime rate of pay during the period’ (Act section 8(1), (2)). These calculations were taken into account in relation to the Tribunal’s calculation of Mr Menz’s ‘normal weekly earnings’, as the Tribunal decided in its decision of 17 May 2013.
In addition, the formula in section 19 is based on a ‘maximum rate compensation week during which the employee is incapacitated’ (Act section 19(2)). Section 19(2A) provides for the calculation of incapacity payments ‘when the employee’s incapacity prevents the employee working the employee’s normal weekly hours’ (Act section 19(2A(a)). No provision is made in section 19(2A) for an employee who works in excess, rather than less than, their normal weekly hours. So for the purpose of calculating the amount of incapacity payments under section 19(1), time at work in excess of normal weekly hours is not taken into account. It can be inferred that the legislation is based on the assumption that an employee who has an accepted incapacity is incapable of working for longer hours than they were, on average, prior to the injury.
‘Normal weekly hours’ is defined for the purpose of section 19 as ‘the number of normal weekly hours worked by the employee before his or her injury’. Initially, Mr Menz’s normal weekly hours were based on medical evidence from Dr Kay, and the Suitable Duties Plan signed by Mr Menz on 1 May 2008. These listed 70 hours a week including overtime as his normal weekly hours. Based on that information Border Express calculated that his normal weekly hours would be 69.44 hours, including overtime.
Following a request for review by Mr Menz of his normal weekly hours, on 11 August 2009 the normal weekly hours of 69.44 was affirmed by Border Express. However, Mr Menz sought further review by the Tribunal which, by consent, reduced the normal weekly hours figure to 58.16 hours a week. Again that figures includes average overtime worked. Mr Menz has not sought further review by the Federal Court of the Tribunal’s decision approving that figure for normal weekly hours so this figure is used in the formula to calculate his incapacity payments.
Any hours worked by Mr Menz in excess of 58.16 hours are not taken into account when calculating incapacity payments under section 19 of the Act. That approach is supported by the terms of the Act. For example, in working out the ‘adjustment percentage’ for the purpose of section 19(3) of the Act, the provision which relates to any adjustments made to the amount of incapacity payments is stated to depend on the amount of time the person has been prevented by their accepted injury from working in a week, and the provision refers to the maximum percentage of a week which may be taken into account in the calculation as 100 per cent. So in a week in which Mr Menz had worked 58.16 hours, or 100 per cent of his normal weekly hours as assessed, no further adjustment to his incapacity payment is permitted under section 19(3) of the Act.
Similarly, the Act provides that once a person’s normal weekly hours is set, section 8(10) of the Act prevents the person from receiving more by way of compensation than would be the case if the person had not been incapacitated. In other words, the normal weekly earnings, as adjusted to take account of increases in earnings such as under an award, is a ceiling on the amount the person can receive from their employer by way of compensation.
The Tribunal notes that until February 2010 when the Tribunal established the lesser number of hours as the ‘normal weekly hours’ for Mr Menz for the purposes of assessing his incapacity payments, Mr Menz would have assumed that his normal weekly hours had to be 69.44 hours. The Tribunal infers that Mr Menz was operating on that assumption between May 2008, the date of injury, until February 2010, when the Tribunal confirmed the lesser number of hours as his normal weekly hours. The Tribunal has also inferred that Mr Menz, for that period, was under the impression that he needed to work roughly 70 hours a week in order to avoid being penalised under the adjustment percentage provisions in section 19(3). It is understandable that he should feel aggrieved when he managed those hours, to later discover, he need never have worked them.
At the same time, once the reduced figure for normal weekly hours was finalised by the Tribunal, Border Express undertook a recalculation of his normal weekly earnings based on the reduced number of hours, the actual hours he had worked (for the ‘ability to earn’ amount) and adjustments were made to the calculations. The Tribunal has found that those recalculated amounts were correct and he was compensated for any reductions to his incapacity payments made based on the higher, 69.44 hours per week, figure.
Conclusion
In conclusion, the Act provides for the amounts to be paid to compensate an employee for a work-caused injury. The amounts of that compensation are based initially on an average rate of pay, allowances and overtime, and the average number of hours worked by the employee prior to the injury. Once a figure is established for normal weekly earnings and normal weekly hours, apart from adjustments to take account of changes to award rates (Act section 8(9), (9A), (9B), (9(C), and periods when a partially incapacitated employee works less than the normal weekly hours, the formula determines the amount to be paid by way of compensation.
Those figures do not take account of hours worked in excess of the agreed normal weekly hours figure. There appear to be no cases on such a possibility, supporting the assumption that it would be unusual for an injured employee to work hours in excess of those calculated as normal weekly hours following an injury.
In conclusion, the Tribunal has affirmed its decision under review, namely, that according to the recalculations of Border Express, the figures supporting a total of ‘Comcare make-up pay’ of $72.82 is correct, that all the other calculations on which normal weekly earnings are based are correct, and the Tribunal has no jurisdiction to reconsider these calculations.
I certify that the preceding 28 (twenty eights) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. ......................[sgd]............................
Associate
5 May 2014
Date of interlocutory hearing
Date of reinstatement in part
Date of dismissal
9 December 2013
6 March 2014
11 April 2014
Advocate for the Applicant Maree Menz Advocate for the Respondent Madelaine August Solicitors for the Respondent Moray and Agnew Lawyers
0
0
0