Organ and Comcare (Compensation)

[2017] AATA 893

Organ and Comcare (Compensation) [2017] AATA 893 (16 February 2017)

Division:GENERAL DIVISION

File Number(s):      2016/0657

Re:Gregory Organ

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:16 February 2017

Place:Sydney

The decision under review is affirmed.

...................................[sgd].....................................

Senior Member A Poljak

CATCHWORDS

COMPENSATION – normal weekly earnings – mobility policy – moved from shift position to non-shift position – whether move was due to compensable condition or mobility policy – decision  affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 8

REASONS FOR DECISION

Senior Member A Poljak

16 February 2017

1. Mr Organ, the applicant, commenced employment with the Department of Agriculture (now known as the Department of Agriculture and Water Resources) (“the Department”) on 30 July 2001 in the role of Biosecurity Officer, at the equivalent of an APS 2 level. Since November 2007 the applicant has held the position of Biosecurity Officer, at the APS 4 level.

2. The applicant has an accepted compensable condition in respect of an aggravation of lumbar sprain and aggravation of neck sprain with a date of injury of 7 July 2014 (“the compensable condition”).

3. The decision under review in these proceedings is the decision dated 2 July 2015 made on behalf of Comcare by a delegated review officer (“the reviewable decision”).

4. The reviewable decision affirmed a determination dated 27 May 2015 in which the applicant’s Normal Weekly Earnings (“NWE”) from 30 September 2014 were calculated pursuant to section 8 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) at $1,307.02. The delegate accepted that as from 30 September 2014, the applicant had been moved to a “non-shift” position pursuant to the operation of the Central East Region Mobility Policy (“the CERMP”), and not because of his compensable condition.

5. The applicant contends that he was transferred from the Air Cargo/Self Assessed Clearance (“SAC”) operation area to the Compliance Assessment and Management Services (“CAMS”) operational area on 30 September 2014 because of his compensable condition. Comcare says that this is not the case, and his transfer was pursuant to the operation of the CERMP.

6. The issues for determination in these proceedings are as follows:

   (a)Whether the Department moved the applicant from the SAC operation area to the CAMS operational area on 30 September 2014 because of his compensable condition; and

   (b)Whether the applicant’s NWE should have been reduced pursuant to section 8(10)(a) of the SRC Act from 30 September 2014.

   RELEVANT LEGISLATIVE PROVISIONS

7. Section 8(10)(a) 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

   …

   the amount so calculated shall be reduced by the amount of the excess.

   THE CERMP

8. The Department operates a mobility policy under which employees are rotated on a regular basis between different operational areas within the Department. The terms of the mobility policy are set out in the CERMP.

9. The CERMP operates to “maintain procedures that are consistent with sound management principles and practices to ensure the continued implementation of an effective Mobility program” and applies to all full-time APS 3, 4 and 5 Department of Agriculture biosecurity officers working in the passenger, mail, air and sea cargo programs, including those on flexible working arrangements. The CERMP applies to the applicant as he has held the position of a full-time Biosecurity Officer APS 4 level employee since November 2007.

10. The CERMP states that the principles of the policy are to:

    ·streamline the mobility process;

    ·reduce the impact of mobility to operational areas;

    ·improve access to training;

    ·provide stability and long-term visibility for biosecurity officers;

    ·create a structured skilled progression system; and

    ·cross program diversity and flexibility in work location for biosecurity officers.

11. The CERMP works in conjunction with the Department of Agriculture, Fisheries and Forestry Enterprise Agreement 2011-14 which states at section 20.5 that for Biosecurity Operations staff, “reasonable notice in relation to work rotation will normally be regarded as four weeks, where operationally possible”.

12. The CERMP enables the Department to meet business objectives with the ability to also:

    ·support officers in developing and maintaining skill sets;

    ·develop cross programme (sic) diversity;

    ·provide external stakeholders with biosecurity officers that are experienced across both commercial and non-commercial importation;

    ·provide for an adaptable workforce to meet critical response plans across a variety of programs;

    ·avoid the risk of officers developing inappropriately close relationships with the clients; and

    ·provide equitable opportunities for staff to access shift penalties.

13. Pursuant to the CERMP, the duration for which a staff member is placed in a given operational area will vary between the different mobility rosters with the indicative time spent in each location based according to the number of staff on the roster and the number of operational areas. For an APS Level 4 employee, the duration to be spent in each operational area is approximately three years.

14. Temporary exemptions from mobility are allowed under the CERMP which provides:

    Officers may apply for temporary exemption from mobility for medical or other reasons eg to care for family members or if they have a disability that would prevent them from operating effectively to the standards expected of biosecurity officers. An exemption will only be granted for a defined, temporary period.

    …

    Whilst an officer may be temporarily exempt from mobility, their position will undergo the natural progression within the mobility roster. (Emphasis added.)

15. A temporary exemption is defined in the CERMP as, an officer requesting to remain in a particular work location past their scheduled mobility date; or, an officer requesting to be moved to a particular work location in advance of their scheduled mobility date.

16. An employee of the Department subject to the proposed movement pursuant to the CERMP may seek to swap their position with another employee in certain circumstances. The CERMP provides:

    Officers may apply to swap their position on a roster with another officer providing that this does not disadvantage any other staff operational outcomes. An individual will only be able to initiate a swap once during a three year roster. A swap should allow for the continued development of an officer’s skills and experience across biosecurity operations. Officers must complete at least one full rotation in a different area prior to being able to swap back into an area where they have already worked a repeat cycle. (A full term is one complete cycle in another operational area deemed on each rotation roster. This is NOT one square on the roster). (Emphasis added.)

17. All applications for position swaps must be made to the Mobility Committee and the “Mobility Committee may consult with relevant Assistant Directors or Directors on the merits of the proposal giving consideration to such matters as security requirements, location specific passes or other matters”.

18. If an officer wishes to swap their position on the roster, but is unable to find another officer to swap with, then pursuant to the CERMP, the officer will be able to register their desired swap with the Mobility Coordinator; who manages the swap register. “This will allow for staff who are unable to find a rotation swap to register their intent”.

19. Ms Ravella Irving, Director, Corporate Strategy and Governance, People Services within the Department, gave evidence in regards to the application of the CERMP and the employment of the applicant with the Department. Ms Irving is responsible for leading a team of human resources professionals to provide advice and services on people related matters to managers and staff within the Sydney location.

20. In the witness statement of Ms Irving dated 11 November 2016; she states that the Department operates two separate rosters. Roster for non-shift work only (“non-shift roster”) and a roster that predominantly involves shift work, but which also includes some non-shift placements (“shift roster”). She said that employees working in operational areas under a shift work arrangement generally earn more than their peers at the same APS level.

21. SAC operates under a shift work arrangement as does the Sydney International Airport and Sydney Gateway Facility. All other areas do not operate under a shift work arrangement including CAMS, which at the relevant time was referred to as Entry Management and Front Counter.

22. Ms Irving states that there are a limited number of roles available in operational areas with a shift work arrangement and the number of employees wishing to work in those areas exceeds the number of available positions. At hearing, Ms Irving reiterated that the CERMP did not allow for an employee to always remain in a shift position as this was not equitable. It is for this reason employees on the shift roster may be required to work non-shift placements under the shift roster.

23. Ms Irving also said in her witness statement that:

    An employee under a work restriction relating to injury or incapacity remains subject to the provisions of the CERMP. The CERMP is not intended to be used as an injury management tool. Although the applicant may have been exempt from mobility under the CERMP in 2012 to better enable him to manage his injuries, the Department was not obligated, either under the Enterprise Agreement, or the CERMP, to continue to offer the applicant roles within operational areas that operated under shift work arrangements. (Emphasis added.)

    BACKGROUND

24. Prior to 2012, the applicant worked in the SAC operational area. As already stated, employees in SAC work under a shift work arrangement and receive shift work allowances.

25. Pursuant to the CERMP, the applicant was due in 2012, to move from the SAC operational area to the Front Counter operational area. Employees in the Front Counter operational area do not work under a shift work arrangement and do not receive shift work allowances.

26. The applicant applied for and was granted an exemption from the rotation. As a result, the applicant remained in SAC for two consecutive placements and the applicant received shift allowances during these periods.

27. Pursuant to the CERMP, the applicant was notified on 26 June 2014 that he was due to be rotated from SAC to the Entry Management/CAMS operational area, effective from 24 July 2014. The evidence of Ms Irving is that the roster detailing proposed rotations was made available to staff from about 9 April 2013.

28. In an email dated 31 May 2015, the applicant states:

    At the time of my Mobility Rotation in 2014, it was impossible for me to organise a mobility swap with any other officer as the majority of any eligible officer had just taken redundancy due to Budget cutbacks and offers by the Department. Their positions on the mobility were left BLANK leaving this as no option. Over 100 staff left the Department permanently.

29. In regards to the applicant organising a mobility swap in the Mobility Rotation in 2014, Ms Irving says in her statement dated 11 November 2016 that:

    Regardless of whether the applicant arranged a swap with another employee, he would ordinarily not have been allowed to remain working in the SAC operational area, as he had completed two consecutive placements within that operational area. Swaps are not always approved and are contingent upon operational requirements of the Department and individual operational areas.

30. On 16 July 2014, the applicant raised concerns regarding his placement in Entry Management citing medical grounds. As a result of these medical issues raised by the applicant, he underwent two assessments by an independent rehabilitation provider to ascertain his capacity to undertake the duties in the Entry Management/CAMS area and to ensure the office environment was suitable and appropriate for the placement. A functional capacity evaluation was allegedly conducted on 29 July 2014 and a workplace assessment was conducted on 9 August 2014. It appears that on the basis of the outcomes of these assessments, the applicant’s movement to Entry Management/CAMS was approved to be progressed.

31. Mr Berry, physiotherapist, undertook the workplace assessment on 9 August 2014. He confirms in his report dated 16 August 2014, that the role of a CAMS Processing Officer was within the applicant’s capacity “with the proviso that he undertakes proactive strategies to improve his postural tolerances”. He states that during the assessment the Department confirmed that such strategies were able to be accommodated.

32. On or about 22 September 2014 the applicant was rotated from the SAC operational area to the Entry Management/CAMS operational area.

33. The applicant requested and was granted approval to commence a flexible working arrangement, working four days per week from 30 September 2014, to assist with his injury management (“flexible working arrangement”).

34. In an email dated 31 May 2015, the applicant contends that he was pressured to “trial” a transition to the CAMS operational area for a three month period from 30 September 2014 to 31 December 2014 with a review to consider his ongoing concerns or impact of any workplace injuries.

35. Mr Andrew Christie, Director, Internal Transformations within the Department and the applicant’s supervisor during the relevant period, gave evidence at hearing, that the only temporary aspect of the applicant’s rotation to CAMS was the flexible working arrangement. He said the applicant’s role in CAMS was permanent due to rotation/mobility.

36. In his statement dated 18 November 2016, Mr Christie states that the applicant’s flexible working arrangement was discussed in a meeting on 19 September 2014. The applicant was present at that meeting along with his support person and a senior rehabilitation advisor. Mr Christie says in his statement that “it was…agreed that the implementation of the flexible working arrangement was to be reviewed after 90 days. The purpose of the review was to determine whether the [a]pplicant’s revised hours and days of work were compatible with the objectives of the business unit and the employee”. He says that “[t]he purpose of the review was not to determine whether the [a]pplicant was to remain in the CAMS unit”.

37. In addition, Mr Christie says in his statement that “[p]rogression from the Air Cargo unit to CAMS allowed the applicant to utilise and develop skills he acquired when working in the Air Cargo Unit. Movement from the Air Cargo Unit to CAMS was therefore the preferred progression for the business”.

    CONSIDERATION

38. Pursuant to section 8(10) of the SRC Act, if the amount of the normal weekly earnings of the applicant before his injury, would exceed the amount per week of the earnings that he would receive if he were not incapacitated for work, the amount shall be reduced by the amount of the excess. In simple terms, if there are changes to the applicant’s position that would affect his weekly earnings, regardless of his injury, then these changes are to be applied to the calculation of his NWE.

39. Having particular regard to the CERMP and the evidence of Mr Christie and Ms Irving, I am satisfied that the applicant’s position was such that he would have been allocated for rotation to a non-shift penalty role in the next rotation irrespective of his compensable injury. Pursuant to the CERMP, the applicant was not permitted to remain in the SAC operational area for a third, consecutive term. He had already remained in SAC for two consecutive placements. I am convinced that if the applicant was not injured, he would have been rotated to the CAMS operational area.

40. I am satisfied that the applicant was moved from the SAC operational area to the CAMS operational area on 30 September 2014 pursuant to, and in accordance with, the CERMP. The role in CAMS does not attract shift penalty rates. It follows that this aspect of the applicant’s NWE should change to reflect his remuneration.

    DECISION

41. For all of the above reasons, the decision under review is affirmed.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

...................................[sgd].....................................

Associate

Dated: 16 February 2017

Date(s) of hearing:	22 November 2016
Solicitors for the Applicant:	C Santone, Santone Lawyers
Counsel for the Respondent:	B Kelly
Solicitors for the Respondent:	P Snell, Lehmann Snell Lawyers