POLLARD and Comcare
[2011] AATA 626
•6 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 626
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5098
GENERAL ADMINISTRATIVE DIVISION ) Re LISA POLLARD Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date6 September 2011
PlaceSydney
Decision The Tribunal affirms the decision under review. .......................[sgd].......................
Ms G Ettinger
Senior Member
CATCHWORDS
Compensation – Commonwealth employees – whether calculation of Normal Weekly Earnings is a fair assessment – calculation of normal hours – decision under review affirmed.
Safety Rehabilitation and Compensation Act 1988 ss 8, 9, 19
Gray v Comcare (2004) 139 FCR 41
REASONS FOR DECISION
6 September 2011 Ms G Ettinger, Senior Member 1.Ms Lisa Pollard, who was a casual employee of the Australian Taxation Officer (ATO) and worked part-time, has an accepted claim by Comcare, for lateral epicondylitis (right), due to an injury sustained at work on 20 April 2010. She is the Applicant in these proceedings, and comes to the Tribunal disputing the calculations of her Normal Weekly Earnings (NWE) by Comcare, the Respondent.
2.I have decided that the correct or preferable decision is to affirm the decision under review made by Comcare. My reasons follow.
ISSUES BEFORE THE TRIBUNAL
3.The issue I have to decide is whether the calculation of the Applicant’s Normal Weekly Earnings (NWE), based on an average assessment of the total hours worked by her since the commencement of her employment with the ATO from 14 July 2009 up to the date of injury on 20 April 2010, is a fair assessment of her NWE pursuant to sections 8 and 9 of the Safety Rehabilitation and Compensation Act 1988 (the Act).
4.A further question is whether the Applicant’s Normal Hours (NH) under section 8 of the Act are 13 hours and 27 minutes per week as held by Comcare, or whether they are 17 hours as claimed by Ms Pollard. Further, on what calculation of NWE Ms Pollard’s entitlement to incapacity payments pursuant to 19 of the Act should be calculated.
BACKGROUND
5.As already stated in the summary above, Ms Pollard is a temporary employee of the ATO, who worked part-time, and whose duties as an Irregular/Intermittent APS1, entailed data entry. Ms Pollard has an accepted claim for compensation for lateral epicondylitis (right) which she sustained on 20 April 2010. Payments are made to the Applicant pursuant to section 19 of the Act.
6.Comcare made various determinations during 2010 based on what it calculated to be the Normal Hours of 12 hours and 17 minutes per week. Ms Pollard appealed the decisions, in particular pointing out in her correspondence that a person in her position as an Irregular/intermittent employee with the ATO, was dependent on the work received during the year. Ms Pollard pointed out to the Respondent and to the Tribunal, that there is a peak, and an off-peak period. She submits that the minimum work day for her was three hours per day or 15 hours per week, whereas in the peak period, which included the period of her incapacitation, the NWE, were higher because the minimum was four hours a day, or 20 hours per week. Her argument is that the total owing to her for the period was 251.77 hours. Ms Pollard submitted that as she had only received 121.7 hours of payment, she is still owed 130.07 hours of pay.
7.In its reviewable decision dated 29 October 2010, the Respondent indicated that:
The NH amount [in the section 8 formula] does not represent the number of hours that were available or would have been available to you during the period of your incapacity… The NH amount is derived from a period of time prior to your date of injury and referred to in section 9 of the Act as the ‘relevant period.’ The relevant period is usually two weeks prior to the date of injury.
8.The Comcare review officer went on to state, however, that given the irregularity of your weekly hours of work since commencement, he considered it reasonable to extend the relevant period, and then proceeded to calculate the Applicant’s NWE by reference to the hours worked by the Applicant during the entire period of her employment with the agency prior to her deemed date of injury (section 8(5) of the Act). He decided that the Applicant’s correct normal weekly hours for the period 4 May 2010 to 20 August 2010 was 13 hours and 27 minutes per week.
RELEVANT LEGISLATION
9.Relevant sections of the Act are sections 8 and 9.
Section 8(1) is as follows:
(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 overtime 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.
Section 9(1) is as follows:
(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.
10.An extension of the relevant period beyond the two weeks provided for in section 9(1) is permitted by virtue of section 8(5) of the Act, which provides:
(5) Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.
THE TRIBUNAL’S DELIBERATIONS AND CONCLUSIONS
11.In coming to a conclusion I have taken into account all the documents before me, the legislation, and the submissions put.
12.I am mindful that for the purpose of fixing amounts which can be paid to Ms Pollard by way of compensation pursuant to the Act, it is necessary to arrive at an amount described as the NWE. That topic is dealt with pursuant to section 8 of the Act, supplemented by section 9.
13.I note that Ms Pollard tendered a letter she wrote regarding her claim on 4 May 2011 which is Exhibit A1, and a further letter of 22 July 2011 which is Exhibit A2.
14.The main thrust of Ms Pollard’s argument is that the Respondent has acted unfairly in the calculation of her NWE. She has asked that the Tribunal make a decision based on her actual working hours over the entire period of her employment prior to the injury, and that all the days of leave over that entire period be disregarded. As already noted Ms Pollard referred to her employment consisting of both peak and non-peak periods over the course of the year. She asked that the peak periods since her period of incapacity began, be reflected in the calculation of her NWE.
15.Ms Pollard has also submitted that the minimum work day for her was three hours per day or 15 hours per week, changing to four hours a day or 20 hours a week in the peak period. I cannot accept that because as I understand it, the terms of Ms Pollard’s appointment, do not guarantee her any set number of hours in a particular week. The numbers she has given are simply indicative of approximate times she might be asked to work, and may indeed have worked.
16.Ms Pollard has provided a copy of what she says are her pay statistics as part of Exhibit A1, and which include the period from 16 July 2009 to 21 April 2010, and represent 20 fortnightly pay periods, or 40 weeks. She says that over that period of 40 weeks, she worked a total of 484.27 hours. She also took four weeks annual leave. The Applicant has calculated the average hours worked over that period as 3.4 hours per day, or 17 hours per week. I noted that the Applicant has obtained that result by dividing the total number of hours worked over the period by the number of days on which she actually worked. However, Ms Pollard did not work on each day of every fortnightly pay period during that time. Accordingly the average number of hours worked over the total period is artificially inflated in her calculations.
17.Mr B Kelly of counsel who appeared for the Respondent has submitted that whatever period is used to calculate the Applicant’s NWE for the purposes of section 8(1), the period must be one which pre-dated the injury. I noted that initially Comcare used the two weeks prior to the injury as the relevant period in its calculation of Ms Pollard’s NWH, and came up with 12 hours and 17 minutes.
18.When Ms Pollard objected, Comcare was able to recalculate her NWH using the entire period of her employment prior to her injury as the relevant period to calculate her NWH (section 8(5) of the Act). Comcare then came up with the revised figure of 13 hours and 27 minutes. In Ms Pollard’s calculation, she used the figure of 20 pay periods or 40 weeks, whereas Mr Kelly submitted that Comcare considered the period comprised 18 fortnightly pay periods or 36 weeks. He submitted that as Ms Pollard took four weeks leave, this period fairly represented the Applicant’s normal pre-injury earnings.
19.Mr Kelly also pointed out that the Applicant sought to rely on the Guidelines published by Comcare for completing the claim form in respect of Time Off Work/Period of Reduced Earnings, particularly Paragraph 3, Calculations for shift workers and employees on rostered hours. That paragraph states that: The liability amount and time included towards the 45 weeks total will be calculated as a fraction of the employee’s Normal Weekly Hours, and gives the following example:
An employee has a week off on total incapacity in a week where they are supposed to work 60 hours, and their Normal Weekly Hours (as calculated over a relevant period of 2 weeks prior to injury) is 38. Comcare will include 1.58 weeks (60/38) towards their 45 weeks total and will reimburse the Agency 1.58 x (Normal Weekly Earnings).
20.Mr Kelly submitted that Comcare referred to that paragraph of the Guidelines in paragraph 4.11 of the Respondent’s Statement of Facts, Issues and Contentions, noting that it is concerned with how the first 45 weeks of incapacity is to be calculated in the case of a shift worker or employee on rostered hours, and not the calculation of such an employee’s NWE. I accept that.
21.Mr Kelly also submitted that the Applicant indicated that she relied upon section 9(4) of the Act. Section 9(4) follows:
(4) If during any part of the period calculated under the preceding subsections, the employee’s earnings were reduced, or the employee did not receive any earnings, because of absence from his or her employment for any reason, that part of that period shall be disregarded for the purposes of calculating the relevant period.
22.Mr Kelly submitted that section 9(4) only has application if the relevant period has been calculated pursuant to sections 9(1), (2) or (3), rather than in accordance with section 8(5), as it has in Ms Pollard’s case. If calculated under section 9(1), then there will be no part of the period calculated during which the Applicant’s earnings were reduced or during which she received no earnings because of absence from her employment for any reason, since she took no leave in the two weeks prior to her deemed date of injury.
23.He submitted that section 9(2) has no application since there was no variation in the minimum amount per week payable to the Applicant in respect of her employment as a result of either the operation of a law of the Commonwealth, a State or Territory, the making of an award, order, determination or industrial agreement (or the doing of any other act or thing under such a law) during the period referred to in section 9(1); and section 9(3) only applies where in any case the application of section [9](2) would require that a period be disregarded for the purposes of calculating the relevant period.
24.I noted that in Gray v Comcare (2004) 139 FCR 41, the Federal Court considered an appeal from a decision of the Tribunal which affirmed a reviewable decision that the NWE of a casual teacher was to be calculated over a period of 18 weeks during which work was available to her, rather than the 13 weeks she had actually worked (she having been absent for 5 weeks due to illness), on the basis that she received a 15% loading in lieu of sick leave and recreational leave as part of the conditions of her employment. Gyles J said:
In my opinion, the inclusion of a 15% loading in the casual payment rate was irrelevant to the statutory purpose of arriving at an amount that fairly represented the weekly rate which the employee was being paid in respect of her employment before the injury for the purpose of providing compensation for injury resulting in incapacity. It is apparent that the Tribunal accepted the principle that, in the case of a casual employee, it was appropriate to take a period of service long enough to take account of the hours which were worked when work was available in order to assess realistically the usual number of hours worked per week on a casual basis. Whilst somewhat arbitrary, the principle is a response to a difficult problem and would appear to be generally supported by employer and employees…
In my opinion, the search for ‘normal weekly earnings’ in this statutory context plainly means ‘normal whilst working’. An employee does not work whilst absent on sick leave. During that period, an employee neither earns nor receives payment for work. Even if sick pay were received during that period, that would not be correctly described as earnings in the relevant sense. That is even clearer where no remuneration at all is received for the relevant period of sick leave. Section 19 would certainly work unfairly if the normal weekly earnings were depressed below a proper casual rate. In my opinion, ss 8(4) and s 9(4) give support to this reasoning, although neither is directly applicable to the present case.
25.The Respondent has excluded the period of 4 weeks’ leave taken by the Applicant in calculating the Applicant’s NWE over the entire period of her employment prior to injury as only 36 weeks were used to calculate the Applicant’s NWE. I am satisfied that Comcare has applied the rules which lead to a fair calculation of Ms Pollard’s NWH, and therefore her entitlement to payments pursuant to section 19 of the Act. I have not recalculated the actual figures, and rely on Comcare to have done so accurately on the basis they have put forward, and with which I agree.
DECISION
26.The Tribunal affirms the decision under review.
27.No costs can be awarded pursuant to section 67(8) of the Act.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: ...................................[sgd].............................................
AssociateDate of Hearing 3 August 2011
Date of Decision 6 September 2011
Applicant Self Represented
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Ms A Bortone, Sparke Helmore Lawyers
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