Precup and Inco Ships Pty Ltd

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1991

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1496

GENERAL ADMINISTRATIVE DIVISION		)
Re		ADRIAN PRECUP

Applicant

And INCO SHIPS PTY LTD

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member

Date29 November 2007

PlaceSydney

Decision The decision under review is set aside.  

..................[Sgd]......................

Ms Robin Hunt
  Senior Member

Section 78 of the Act provides for reconsideration by an employer of determinations made by an employer.

4.      Section 26 of the Act provides that an employee who suffers an injury that results in incapacity for work or impairment is entitled to be paid compensation for the injury. Section 31 of the Act provides that compensation for injuries resulting in incapacity is determined by reference to normal weekly earnings.

5.      Section 13 of the Act contains provisions about how to calculate normal weekly earnings of injured employees.  Subsection 13(1) of the Act provides:

13(1)    For the purposes of this Act, if an employee who is a seafarer suffers an injury, the employee’s normal weekly earnings are an amount equal to the amount payable weekly to the employee by way of salary under the contract of employment that applied to his or her employment immediately before the injury happened.

6.      Subsection 13(5) reads:

13(5)    If the amount per week payable to an employee in respect of his or her employment before the injury is increased, or would have been increased, because of the operation of an award, determination, collective agreement, pre‑reform certified agreement or the Australian Fair Pay and Conditions Standard or contract of employment if the employee had continued in that employment, because the employee:

(a)       reaches a particular age; or

(b)       completes a particular period of service; or

(c)received an increase in salary, by way of an increment in a range of salary that applies to the employee;

the normal weekly earnings of the employee before the injury, as worked out under the preceding subsections, must be increased by the same percentage as that by which the amount per week is increased or would have been increased, as the case may be.

7.      Subsection 13(6) of the Act provides, in part:

13(6)If the amount per week payable to employees in a class to which the employee belonged when the injury happened is later increased or reduced as a result of:

(a)       …;

or

(b)the making, alteration or operation of an award, determination or certified agreement, or the doing of any other act or thing under such a law;

the normal weekly earnings of the employee before the injury, as worked out under the preceding subsections, must be increased or reduced by the same percentage as that by which that amount per week was so increased or reduced, as the case may be.

history of the application

8.      Mr Precup’s fall on board the vessel, MV Portland, was witnessed by a third engineer, who reported it to the ship’s master. On 22 July 2005, Mr Precup…