Moon and Repatriation Commission

[2006] AATA 172

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 172

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/478

VETERANS’ APPEALS DIVISION		)
Re		MALCOLM MOON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date28 February 2006

PlaceBrisbane

Decision The applicant is unable to satisfy the 10 year rule embodied in s 24(2A).

.................Sgn.......................

SENIOR MEMBER

CATCHWORDS

VETERAN’S AFFAIRS – applicant wants pension at special rate – 10 year rule – continuous work – break in the continuity of the applicant’s work – change in capacity with the employer - unable to satisfy the 10 year rule

Industrial Relations Act 1999 (Qld) s 71

Veterans Entitlements Act 1986 s 24

REASONS FOR DECISION

28 February 2006 Senior Member B J McCabe

introduction

1.      Mr Keith Moon receives a disability pension under the Veterans Entitlements Act 1986 (the VEA). His application for an increase in the pension was rejected by the Repatriation Commission on 21 May 2003. That decision was subsequently affirmed by the Veterans’ Review Board. He has asked the Tribunal to review the case. He continues to receive a pension at 90% of the general rate. He wants to be paid at the special rate.

2.      The matter came on for hearing in Cairns in December 2004. It became apparent that extra evidence was required, and I granted an adjournment. Those investigations took some time. After they were completed, the parties were invited to make submissions in relation to a preliminary issue. These reasons relate to that issue.

the 10 year rule

3.      The criteria for granting pensions at the special rate are set out in s 24 of the VEA. The respondent says the applicant is required to satisfy a number of conditions before he can qualify for a special rate pension. One of these is the “10 year rule” embodied in s 24 (2A) (f) and (g). The provisions, read together, apply to an applicant if:

·His last paid work was undertaken after he turned 65 years of age; and

·When he stopped undertaking that work, he had been working for the same person, or for that person and his or her or its predecessors, for a continuous period of at least 10 years that commenced before the applicant turned 65.

4.      The applicant’s claim for the pension must fail if he is unable to satisfy the 10 year rule.

the applicant’s work history

5.      The applicant served in the Royal Australian Navy. He commenced work with Armaguard in Sydney in September 1970. He was employed full-time. He said in his statement dated 29 September 2004 (exhibit 2) that he moved to Cairns in 1983. He continued to work with Armaguard although he ceased full-time work and became a casual employee. After a few months, he resumed permanent full-time work.

6.      Mr Moon tendered his written resignation from Armaguard on 7 September 1999. His letter is included in the applicant’s personnel file provided by Armaguard. It was expressed to take effect on 26 November 1999.

7.      Mr Moon took his long service leave payout and resigned from the Transport Workers Union when he left Armaguard. The documents all suggest he had terminated his relationship with the company on 26 November 1999. His claim for an aged service pension (T documents at p 44) says he finished work in November 1999; his lifestyle questionnaire completed on 7 September 2000 (T documents at p 6) says the same thing. But the applicant was rehired by Armaguard as a casual employee a month after he resigned. He cut back to 6 hours a week in August 2000 and ceased employment altogether in February 2001. He says he was unable to continue work after that date because of his service-related injuries.

8.      There was a break of almost a full month between the end of the applicant’s permanent full-time employment (on 26 November 1999) and the date he resumed casual employment with the same company (on 24 December 1999). There was some evidence at the hearing which suggested Mr Moon’s resignation was a mere formality: he says it was always intended that he would start work as a casual employee as soon as possible. I was invited to infer that Mr Moon was being given preferable treatment as a result of a good relationship that he enjoyed with senior managers at Armaguard. A letter from Mr Warne at Armaguard dated 24 July 2003 (T documents, p J) lends some support to this view. The letter says:

He resigned in September 1999 effective November 1999. After taking long service leave, Malcom commenced work as a casual employee in December 1999.

9.      There is also a letter from Mr Peter Starr, another manager, dated 27 September 2004 to similar effect.

can mr moon satisfy the 10 year rule?

10.     The VEA requires that the applicant work for Armaguard “for a continuous period of at least 10 years…”. If one has regard to the bulk of the documents, it is clear Mr Moon cannot satisfy that requirement. There is a clear break in the continuity of his employment at the end of November 1999. The break lasts a month. That employment relationship was terminated, and his new relationship did not begin until a month later. The situation might be different if he finished his old job on Friday and started work as a casual the following Monday. But documents suggest that did not happen here. The bulk of the evidence suggests there are two discrete periods of employment. While both contracts envisage the applicant performing substantially similar duties, one was a full-time contract and one was a part time contract. It follows the terms and conditions are not identical. The two periods cannot be regarded as employment for a “continuous period”.

11.     Does the winking and nodding between Armaguard and Mr Moon make any difference? Mr Moon says (consistently with the letter from Mr Warne) he never really left Armaguard – it was always intended he would segue from full-time work to casual work. But Mr Moon did tender his resignation, and the resignation was accepted by Armaguard. He did leave the company’s service for a month. He says he thought he was really on holiday during that period. I was invited to infer there was some technical requirement that required him to formally resign and be rehired after an appropriate period.

12.     Even if the applicant had an agreement to be rehired after a month, I do not think that changes the analysis. There was still a one month break between his two different employment relationships. The applicant and his supervisor may not have properly understood what was going on, but it seems to me the intended legal effect of the manoeuvring was to create two separate relationships, separated by a month. There is no continuity as envisaged by the legislation.

13.     I note the applicant has submitted the Tribunal should have regard to the provisions of the Industrial Relations Act 1999 (Qld) (the IR Act). Section 71(5) of the Act says the continuity of an individual’s employment is not broken where an employee is terminated and then resumes employment with the same employer in certain circumstances. Section 47 contains similar provisions relating to casual employees.

14.     I do not think these provisions assist me in the interpretation of the provisions of the Veterans Entitlements Act 1986. The provisions of the IR Act are designed to protect employees from unscrupulous managers. The “10 year rule” in the VEA has a different purpose. It is intended to restrict the circumstances in which an older veteran may make a claim for a special rate pension.

conclusion

15.     The applicant is unable to satisfy the 10 year rule embodied in s 24(2A).

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         Mr Adam Ryan         
  Associate

Date of Hearing  2 December 2004 & 7 March 2005
Date of Decision  28 February 2006

The applicant was represented by Myles Thompson.

The respondent was represented by John Stoner.