Palmer and Comcare (Compensation)
[2021] AATA 1435
•11 May 2021
Palmer and Comcare (Compensation) [2021] AATA 1435 (11 May 2021)
Division:GENERAL DIVISION
File Number(s): 2020/5308
Re:Steven Palmer
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:11 May 2021
Date of written reasons: 24 May 2021
Place:Sydney
I affirm the decision under review.
....................................[sgd]....................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
COMPENSATION – Dispute concerning calculation of Normal Weekly Earnings (NWE) –whether Applicant’s NWE is to be calculated based on pre-injury earnings or whether subsequent increase in earnings and hours should be taken into account – whether Applicant’s transfer to another work location with higher pay was a “promotion” for the purposes of s 8(7) of the SRC Act – Reviewable decision affirmed
LEGISLATION
Safety, Rehabiliation and Compensation Act 1988 (Cth) ss 5A, 8, 9, 19
CASES
Bortolazzo v Comcare [1997] FCA 515; (1997) 75 FCR 385
Brady and Comcare [2013] AATA 559
McDonald and Department of Defence [1999] FCA 882
West and Comcare [1999] AATA 159
Willis and Comcare [2014] AATA 603
SECONDARY MATERIALS
Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2013 – 2017
WRITTEN REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
24 May 2021
BACKGROUND
The Applicant was employed by Airservices Australia as a Lead Aviation Firefighter until 1 November 2018. He was employed under the terms of Air Services Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2013-2017 (the Agreement). He has an accepted claim for ‘major depressive disorder’, the injury being sustained on 19 October 2016 while working at Coffs Harbour Airport.
Comcare was required to determine the Applicant’s normal weekly earnings (NWE) for the purpose of calculating compensation under section 90 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). A determination was made on 28 April 2020 and affirmed by an independent review officer (IRO) on 3 August 2020 (the reviewable decision).
The Applicant has asked the Tribunal to review the decision of the IRO.
The hearing was conducted by Microsoft Teams videoconference and the Applicant was the only witness before the Tribunal. The Applicant was self-represented.
The reviewable decision of 3 August 2020 was based on the footing that the Applicant’s NWE was not to be adjusted by reference to an increase in earnings resulting from his transfer from Coffs Harbour to Brisbane Airport, which occurred on 31 January 2017.
In his role at Brisbane Airport he worked longer hours (42 hours) and four hours overtime. He also received a 4% loading because Brisbane was a category 10 airport. He argued that he should receive an adjusted NWE for the period 1 August 2017 to 14 February 2018.
Air Services Australia stated that he held the same position as lead Aviation Fire Fighter at both stations. The Applicant did not dispute that this was so.
He said that he was under duress to put in for a transfer as a result of a breakdown in his relationship with his supervisor.
The Applicant put two arguments the Tribunal:
(i)First, that his NWE should not be based solely on the two weeks prior to his workplace injury but adjusted by reference to his higher earnings resulting from his transfer to a higher category airport; and
(ii)Second, that his transfer constituted a “promotion” under subsection 8(7) of the SRC Act and he was, therefore, entitled to a higher rate of NWE
LEGISLATION
Section 8(1) of the SRC Act provides that the NWE of an employee before an injury shall be calculated in relation to the relevant period (‘RP’) using the formula (NH x RP) + A:
8 Normal weekly earnings
(1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
(NH x RP) + A
where:
“NH” is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
“RP” is the employee’s average hourly ordinary time rate of pay during that period; and
“A” is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment
(2) Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:
NH x OR
where:
“NH” is the average number of hours of overtime worked in each week by the employee in his or her employment during the relevant period; and
“OR” is the employee’s average hourly overtime rate of pay during that period.
…
(7) Subject to this section, if:
(a) an employee continues to be employed by the Commonwealth or a licensed corporation after the date of an injury; and
(b) the minimum amount per week payable to the employee in respect of that employment is increased because of the promotion of the employee;
the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased by the same percentage as the percentage by which that minimum amount per week is increased.
The reference in section 8 to the ‘relevant period’ is subject to subsection 9(1) which provides:
9 Relevant period
(1) For the purposes of calculating the normal weekly earnings of an employee before an injury, a reference in section 8 to the relevant period is, subject to this section, a reference to the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the Commonwealth or a licensed corporation.
I was referred to a number of decisions by the Respondent. In McDonald v Department of Defence [1999] FCA 882, the Federal Court rejected an argument that NWE should be based on earnings immediately before the onset of incapacity where the incapacity occurred some years after the injury. Sundberg J held (at [10]) that the starting point for the calculation of an employee’s NWE is what he was paid in the two weeks before the injury.
In Bortolazza v Comcare [1997] FCA 515, (1997) 75 FCR 385 at 388, Heerey J stated:
I accept the submission of counsel for the applicants that the Act is social legislation which ought to be construed, in the event of ambiguity, liberally in favour of injured employees ... But a liberal interpretation is one thing, rewriting the statute is another.
... The underlying policy is that an injured employee should not be worse off during the period of incapacity as a result of work-related injury. …
In Brady v Comcare [2013] AATA 559 at [30] the Tribunal stated:
In the Tribunal’s opinion there is no ambiguity in any of the provisions of s 8 of the SRC Act. Furthermore, the applicant’s abovementioned submission regarding the meaning of the phrase “relevant period”, for the purpose of calculating her NWE under s 8 of the SRC Act, is contrary to s 9(1) of the SRC Act (which unambiguously provides that that phrase refers to the period of 2 weeks immediately before the relevant injury). Acceptance of that submission, therefore, would effectively involve an impermissible rewriting of s 9(1).
I therefore accept the Respondent’s submission that under sections 8 and 9 of the SRC Act, it is the Applicant’s pre-injury earnings that determines the NWE, not his subsequent post-injury earnings.
Was his transfer a promotion?
I turn then to consider whether the circumstances giving rise to the Applicant’s transfer to Brisbane may fall within subsection 8(7) of the SRC Act. Was this a promotion?
The word ‘promotion’ appears in paragraph 5A(2)(f) of the SRC Act in the definition of injury. It also occurs in paragraph 8(7)(b) in the calculation of NWE.
In that first context, paragraph 5A(2)(f) states that ‘reasonable administrative action’ is taken to include, inter alia:
(f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
[Emphasis added]
Under paragraph 8(7)(b) the word ‘promotion’ appears in the following context:
(b) the minimum amount per week payable to the employee in respect of that employment is increased because of the promotion of the employee…
[Emphasis added]
I note that the words accompanying the word ‘promotion’ in paragraph 5A(2)(f) (i.e. reclassification, transfer or benefit) are conspicuously absent in paragraph 8(7)(b).
I consider that the word ‘promotion’ in paragraph 8(7)(b) means a promotion in terms of a person’s rank or classification. Circumstances giving rise to more take home pay, such as access to extra hours of overtime or loadings, do not per se constitute a promotion.
I note that in West v Comcare [1999] AATA 159 the learned Senior Member stated:
20. Further, to come within subsection 8(7)(a) an employee is to have received an increase in salary as a result of a promotion. I accept the submission of counsel for the respondent, that the use of the word "promotion" reinforces the requirement of the continuity of service with the Commonwealth. The Macquarie Dictionary (2nd edition) gives the meaning of promotion, in the sense of its use in the subsection, as "advancement in rank or position". A promotion or advance to a position or place is referable to a previous position or place.
21. Resuming or returning to employment with the Commonwealth after termination of Commonwealth employment is not descriptive of an employee "who continues to be employed by the Commonwealth" after the date of an injury, when read in the context of the increase in pay arising as a result of the employee's "promotion". The applicant's return to the APS at a salary in excess of his earnings at the time of his previous termination, can not in those circumstances be regarded as a promotion from that previous employment.
22. The fact of increase in salary is only one factor in determining whether an appointment to a position is by way of "a promotion". An employee may receive a promotion without an increase in salary. I do not think that the fact on its own that an employee obtains a position at a higher salary level from the position held at the time of the employee's injury can be regarded as a "promotion", and certainly not in the applicant's circumstances where he moved in and out of Commonwealth employment over many years and held various positions with both the public and private sector.
I was also referred by the Respondent’s representative to Willis and Comcare [2014] AATA 603 where the learned Deputy President said:
11 …The terms of the 2011-2014 Enterprise Agreement I quoted above clearly distinguish between the effect of a promotion and assignment to higher duties. While the employee assigned to higher duties does the work and receives the pay of an employee on the higher classification, the agreement does not describe the assignment as a temporary promotion. I think that reflects a common sense understanding of the concept of promotion which applies to the interpretation of s 8(7): a promotion involves a substantive change in classification or rank. Ms Willis did not get promoted in that sense, so she cannot benefit from s 8(7) in relation to the higher duties allowance.
12. That interpretation makes sense for other reasons. Comcare pointed out in its submissions that it would be administratively difficult to calculate NWE afresh every time an employee in receipt of compensation was assigned higher duties, given it would also be necessary to undertake a further recalculation to account for an effective demotion when the higher duties concluded. That sort of volatility is not just costly; it also sits uneasily with the legislative objective of trying to tether an employee’s earnings to a benchmark calculated just before the employee became incapacitated.
The same can be said for the Award in the present case.
I also note that paragraph 4.12.1 of the Agreement deals with higher duties.
I note that clause 5.2 of the agreement deals with Progression. I note especially in paragraph 5.2.6 which provides that:
Progression beyond the Leading Fire Fighter classification (Certificate III in Public Safety), is subject to a merit based selection process including an assessment of your operational skills and knowledge to determine suitability. This process will be developed in consultation with the union within six months from the date of effect of the agreement and may include a written application, interview and performance review.
In the case before the Tribunal there was a merit selection process involving movement to the next step under the applicable Award.
Merely establishing that a person receives more take home pay because of allowances, overtime and loadings does not establish that they have been “promoted” within the meaning of subsection 8(7) of the SRC Act. It is immaterial that a person is required to undergo specific training in order to take on the same role at a different location.
I therefore affirm the decision under review.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
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Associate
Dated: 24 May 2021
Date(s) of hearing: 11 May 2021 Applicant: In person Solicitors for the Respondent: E Baggett, Moray & Agnew Lawyers
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