MICHAEL MURRIHY and TEEKAY SHIPPING (AUSTRALIA) PTY LTD

[2009] AATA 957

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 957

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1829

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL MURRIHY

Applicant

And TEEKAY SHIPPING (AUSTRALIA)
PTY LTD

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date15 December 2009

PlaceBrisbane

Decision The Tribunal affirms the reviewable decision.

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

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Seafarers – incapacity – normal weekly earnings – calculation – whether applicant’s normal weekly earnings include an allowance paid after the injury but before incapacity – meaning of “injury” – normal weekly earnings calculated from time of injury not from time of incapacity – decision affirmed

STATUTORY INTERPRETATION – Acts Interpretation Act – regard to be had to purpose of Act – regard also to be had to words of provision – purpose of Act cannot be used to construe words of provision in manner manifestly different to what Parliament intended provision to mean

Acts Interpretation Act 1901 (Cth) s 15AA

Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 13, 31

Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214

REASONS FOR DECISION

15 December 2009 Senior Member Bernard J McCabe         

1. An employee who experiences incapacity may be entitled to compensation pursuant to s 31 of the Seafarers Rehabilitation and Compensation Act 1992
(“the Act”). The rate of compensation is calculated having regard to the injured person’s normal weekly earnings (“NWE”) in accordance with s 13 of the Act. Section 13 says the decision-maker arrives at a figure for NWE after examining the amount the employee was earning “immediately before the injury happened”. In this case, Mr Michael Murrihy, the employee, injured his back in January 2008 but stayed at work until November 2008 when the pain associated with his injury caught up with him. He stopped work and was certified as being unfit to return to his duties.

2. A dispute has arisen because Mr Murrihy had begun to receive an extra allowance following his injury but before he ceased work in November 2008. Teekay Shipping (Australia) Pty Ltd, the respondent, says the allowance should not be taken into consideration when calculating NWE because he was not earning that amount in the period leading up to his injury in January 2008. The respondent says the reference to “injury” in s 13 means it is inappropriate to have regard to what he was earning after the injury. Mr Murrihy disagrees. He has asked the Tribunal to reconsider the matter.

3.      

There was some misunderstanding at the outset of the hearing over the precise nature of Mr Murrihy’s case. Some of the documents that were lodged appeared to suggest Mr Murrihy was claiming he stopped work in

November 2008 following an aggravation of the injury to his back that he sustained in January of that year. Ms Hartigan, counsel for Mr Murrihy, confirmed that was not the case. She accepted the medical and other evidence did not suggest anything happened to Mr Murrihy that caused his back condition to worsen. Rather, his back condition had simply deteriorated to the point that he was no longer able to work after he completed his last stint on a ship in November. She said this case turned on the interpretation of the word “injury” in s 13 of the Act. She argued the beneficial nature of the Act was such that I should read the word in a way that would entitle me to have regard to the amount Mr Murrihy was earning at the point at which he became incapacitated – that is, in November 2008.

4.      I cannot accept Mr Murrihy’s argument for reasons I will explain below. The decision under review must therefore be affirmed.

The background facts

5.      

Teekay Shipping operates a number of vessels that service offshore oil operations. Some of the vessels are oil tankers. Mr Murrihy was employed as an assistant engineer who worked on a number of different vessels over time. In January 2008, he was the third engineer aboard the Samar Spirit. He injured his back on or about 6 January. The injury did not appear to be a serious one at the time, and Mr Murrihy continued working according to his ordinary roster. He received treatment for the pain, but his condition began to deteriorate. That did not stop him transferring to the third engineer’s post on the Karratha Spirit in

March 2008.

6.        The Karratha Spirit is known as a floating storage and off-take class vessel, or FSO. It is, in essence, an oil storage facility that was anchored at the relevant time next to an oil platform located 55 miles off the coast of Dampier in Western Australia. The crew of the vessel stayed aboard for a month at a time. They were paid an extra allowance (“the FSO allowance”) because of the remote location. Mr Murrihy was being paid the FSO allowance in November 2008 when the pain following his earlier injury became too much. He finished his deployment on the vessel on 14 November 2008 and obtained medical certificates from his doctor. He has not worked since and claims he is incapacitated. He says he is entitled to compensation calculated having regard to NWE that incorporates his FSO allowance.

The legislation

7.Section 13 of the Act provides:

(1)For the purposes of this Act, if an employee who is a seafarer suffers an injury, the employee's normal weekly earnings are an amount equal to the amount payable weekly to the employee by way of salary under the contract of employment that applied to his or her employment immediately before the injury happened.

8.The word “injury” is defined in s 3 of the Act to mean:

(a)a disease; or

(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include anything suffered by an employee as a result of reasonable disciplinary action taken against the employee, or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.

9.      The respondent says the meaning of the word “injury” is clear: one must have regard to what the employee was earning prior to the date on which the injury occurred. In this case, that was 6 January 2008. Mr Murrihy expressly abandoned any argument that he experienced an aggravation of an injury in November 2008. It follows that the events of November 2008 are irrelevant, at least for present purposes.

10. Ms Hartigan agreed the words of s 13 of the Act suggested that outcome if read in isolation. But she argued this interpretation was inconsistent with the policy evident in the Act. She cited a number of cases, including Re Spurr v Comcare [1999] AATA 43; (1999) 28 AAR 424 and Bortolazzo v Comcare [1997] FCA 515; (1997) 75 FCR 385 that held injured workers should not be worse off during the period of incapacity that follows a workplace injury. Given that policy, and given the beneficial nature of the Act, Ms Hartigan argued it was appropriate to interpret the word “injury” in a way that permitted the decision-maker to have regard to the FSO allowance. To do otherwise, she argued, would be to penalise the employee.

11. Ms Hartigan said the respondent’s approach to s 13 of the Act would produce perverse outcomes. She said the respondent’s interpretation of s 13 does not accommodate a situation like the present where the period of incapacity begins some time after the injury. In particular, Ms Hartigan argues the respondent’s interpretation of the section does not appear to contemplate the possibility of an employee’s pay changing in his favour during the intervening period. Ms Hartigan suggested that approach to the section is inconsistent with the policy of the Act.

12.     

I disagree. Firstly, I do not think there is any ambiguity in the word “injury” in

s 13. That word means something different to “incapacity”, which is defined in s 8 of the Act. If Parliament had intended the decision-maker to have regard to the state of play at the time when incapacity began, it would have said so in so many words.

13. I accept s 15AA of the Acts Interpretation Act 1901 permits me to prefer a less obvious interpretation of the words where that alternative interpretation promotes the achievement of the objectives of the legislation. But there are limits. One cannot adopt a construction that the words simply do not bear. One cannot, in effect, re-draft the legislation: see, for example, Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235 per Dawson J. While s 15AA puts Parliament’s purpose front and centre in the interpretation process, it should never be regarded as a statutory invitation to “do as Parliament wants, not what it actually says”.

14.     I would not be persuaded that a different interpretation should be adopted even if I accepted there was ambiguity in the wording of the Act. I have no difficulty with the argument that this provision should be interpreted with an eye to achieving the beneficial outcomes intended by the Act. I can also see how the approach advocated by Ms Hartigan would advantage the applicant in this case. But I doubt the approach for which she contends would produce the sort of beneficial outcomes contemplated by the Act.

15. I suggested to Ms Hartigan during final submissions that Parliament may have fixed the date of injury as the relevant point because it did not want to create an incentive for employers to avoid taking an injured worker back and integrating him or her into the workforce, and perhaps promoting that person. An employer might be reluctant to risk giving an employee an effective pay-rise (as Teekay Shipping had done in Mr Murrihy’s case) if that might lead to a higher payout should the applicant subsequently become unable to work because of his injury. That risk would certainly occur if the NWE was calculated at the later point. Ms Hartigan suggested that would be unfair because the employee would be penalised. I do not think that is so, but in any event I think there is some reason to believe it is an outcome intended by the Parliament when it deliberately used the word “injury” in s 13.

Conclusion

16. I do not think Mr Murrihy is entitled to have regard to the amount of the FSO allowance when calculating his NWE for the purposes of s 13 of the Act. I was not directed to any other evidence or arguments that suggested the respondent had made an error in its calculations under s 13. The reviewable decision must therefore be affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:..............................[Sgd]................................................
  Michael Buckingham, Associate

Dates of Hearing  9 September 2009
  2 December 2009
Date of Decision  15 December 2009
Counsel for the applicant          Ms C Hartigan
Solicitor for the applicant          Hall Payne Lawyers
Counsel for the respondent      Mr M Healy
Solicitor for the respondent     HWL Ebsworth Lawyers