Re Sutton and Comcare

This matter concerned an appeal before SM J F Toohey regarding the calculation of Mr Sullivan's Normal Weekly Earnings (NWE) for the purposes of workers' compensation under the SRC Act. The dispute arose from multiple revised determinations of Mr Sullivan's NWE by the respondent, Comcare, which Mr Sullivan contended were incorrect.

The primary legal issue before the Tribunal was to determine the correct calculation of Mr Sullivan's NWE, specifically whether his NWE should be calculated based on the hourly rate stipulated in the relevant Industrial Agreement and Award, or on higher historical contract carrier rates that included a vehicle expenses component. The Tribunal was required to interpret subsection 8(1) and subsection 8(10) of the SRC Act in relation to the calculation of NWE and the treatment of special expenses.

The Tribunal reasoned that subsection 8(1) of the SRC Act mandates that NWE be determined by reference to the terms and conditions of employment as set out in the relevant Industrial Agreement. In this instance, the Agreement stipulated that the ordinary hourly rate of pay was to be that provided in the Award. Despite evidence of historical practice where contract carriers like Mr Sullivan were paid higher hourly rates, the Tribunal found it had no discretion to apply a rate other than that specified in the Agreement and the Award. Furthermore, the Tribunal determined that the vehicle expenses component of Mr Sullivan's pay constituted reimbursement for special expenses incurred in respect of his employment and was therefore excluded from the calculation of NWE under subsection 8(1). The Tribunal calculated Mr Sullivan's NWE to be $1339.30, based on the Award rate of $19.99 per hour, incorporating overtime rates for his 11-hour days.

The Tribunal varied the reviewable decision to reflect the correct NWE of $1339.30.