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,…
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- Case
- [2011] AATA 378
- Decision Date
CaseChat Overview and Summary
The central issue before the tribunal was whether the earnings of the employee in the two weeks prior to her injury were an accurate representation of her normal weekly earnings. The tribunal had to decide whether rostered days off should be taken into account when calculating these earnings, and if so, what period should be considered. The tribunal also had to determine whether the earnings in the two weeks prior to the injury "fairly represented" her earnings, given that no rostered day off was taken during this period.
In reaching its decision, the tribunal held that the two weeks prior to the injury did not fairly represent the employee's normal weekly earnings. The tribunal found that it was reasonable to calculate the employee's normal weekly earnings over a 26-week period, excluding certain weeks. The tribunal calculated the employee's normal weekly earnings based on average weekly hours and average hourly earnings. The tribunal set aside the previous decision and ordered that the employee's entitlements be calculated on the basis of these new figures.
The tribunal further reserved the question of costs and directed the parties to provide written submissions on the matter, setting specific deadlines for each party to submit their arguments. This decision underscores the importance of considering a representative period, including rostered days off, when calculating normal weekly earnings for compensation purposes.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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