PIKE and LINFOX AUSTRALIA PTY LTD

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 378

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2193

GENERAL ADMINISTRATIVE DIVISION		)
Re		LISA ANNE PIKE

Applicant

And LINFOX AUSTRALIA PTY LTD

Respondent

DECISION

Tribunal Senior Member K Bean

Date2 June 2011

PlaceAdelaide

Decision

The Tribunal:

(1)      Sets aside the reviewable decision of 12 May 2010 and in substitution for that decision decides as follows:

(a) the applicant’s normal weekly earnings as calculated under s 8(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) do not fairly represent the weekly rate at which she was being paid before her injury;

           (b)       it is reasonable to calculate the applicant’s normal weekly earnings before the injury over a 26 week period prior to the injury, commencing on 30 April 2009 and excluding weeks 6, 7, 21, 22, 23 and 26;

           (c)       calculated in that way, the applicant’s normal weekly earnings before the injury are $765.28 based on average weekly hours of 39.2 and average hourly earnings of $19.5226; and

           (d)       the applicant’s entitlements are to be calculated on that basis.

(2) Reserves the question of costs and directs that the parties provide written submissions in relation to any order which should be made by the Tribunal pursuant to s 67(8) of the SRC Act in accordance with the following timetable:

           (a)      submissions from the respondent by 16 June 2011;

         (b)       submissions from the applicant by 30 June 2011; and

           (c)       any reply from the respondent by 7 July 2011.

..............................................

K BEAN
  (Senior Member)

background facts

3.There is no dispute between the parties as to the facts which form the background to the application and which are as follows.

4.In or about April 2007, Ms Pike commenced casual employment with a labour hire company to work at Linfox’s Pooraka site in South Australia as a store person.  On or about 16 October 2008, she transferred to full-time employment with Linfox undertaking the same or similar duties.

5.Ms Pike’s employment with Linfox is governed by a letter containing an offer of employment dated 1 October 2008, and the Linfox South Australia (Pooraka) Agreement 2006[1].

[1] Exhibit 3

6.Under clause 5.2 of the Agreement, except where written agreement was reached to the contrary, Ms Pike’s ordinary hours of work were to be an average 38 per week (7.6 hours per day over a 5 day week).  Ms Pike was to work a 5 day week subject to leave. 

7.However under clause 5.2.2 of the Agreement, an RDO system was permitted to be implemented on a site or part of a site.  An RDO system was implemented at the Pooraka site, and the particulars of the RDO system were as follows. 

8.Over the course of a four week cycle:

(a)      Ms Pike would actually work 19 days, each made up of 8 hours, instead of 7.6 hours, i.e. she would work an additional .4 hours per day or 2 hours per week.

(b)This would give a 40 hour working week,…