Robertson and John Holland Group Pty Ltd - [2009] AATA 443

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 443
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0463, 4098

GENERAL ADMINISTRATIVE DIVISION )

Re DAVID ROBERTSON

Applicant

And

JOHN HOLLAND GROUP PTY LTD

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date19 June 2009
PlaceBrisbane

Decision
1.     In application 2008/0463 the Tribunal:

a)     sets aside the decision under review;

b) remits the matter to the respondent for reconsideration in accordance with a direction that section 8(10) of the Safety Rehabilitation and Compensation Act 1988 (Cth) has no application to the applicant’s circumstances;

c)     orders the respondent to pay the applicant’s costs of and incidental to the application, to the taxed.

2.     In application 2008/4098 the Tribunal:

a)     sets aside so much of the respondent’s reviewable decision of 7 August 2008 as varied the decision of 8 July 2008;

b) remits that part of the reviewable decision of 7 August 2008 to the respondent for reconsideration in accordance with a direction that section 8(10) of the Safety Rehabilitation and Compensation Act 1988 (Cth) has no application to the applicant’s circumstances;

c)     otherwise affirms the reviewable decision of 7 August 2008; and

d)     orders the respondent to pay the applicant’s costs of and incidental to the application so far as those costs relate to the issue of the rate of compensation payable for incapacity, to be taxed.

................Signed................
Deputy President

The legislation
3.It is desirable to start with a brief explanation of the statutory framework. By virtue of s 19(2) of the Act (read in conjunction with s 108A) JH Group is liable to pay Mr Robertson compensation for incapacity worked out in accordance with a formula that includes an amount described as “normal weekly earnings”. Neither the formula nor the other provisions of s 19 are presently relevant; it is enough to note that the determination of normal weekly earnings is of critical importance in determining the entitlement to compensation for incapacity.
4.Section 8 deals with the calculation of normal weekly earnings. It will suffice for present purposes to say that the enquiry under s 8 of the Act focuses upon the earnings in the period of two weeks prior to the injury. Ordinarily, the normal weekly earnings are the sum of the average number of hours by the hourly rate of pay plus allowances. Where an employee is required to work overtime on a regular basis an additional amount, calculated in accordance with s 8(2) of the Act, is added to the amount determined under s 8(1) of the Act to determine normal weekly earnings. Within s 8 are mechanisms for making adjustments to the calculation of normal weekly earnings to ensure that the determination of normal weekly earnings remains accurate. Finn J described the scheme in this way in Comcare v Thompson[1]:
“Where the incapacitated employee no longer is employed by the Commonwealth, a purpose of the Act is to make some provision (reflected in the compensation payable) for the employee's participation in what I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] AATA 443
Decision Date: 19 June 2009

CaseChat Overview and Summary

The applicant, Robertson, sought compensation under the Safety, Rehabilitation and Compensation Act 1988 for injuries sustained during his employment with the respondent, John Holland Group Pty Ltd. The employment was contingent on the completion of a project, and upon its completion, Robertson's employment ended while he remained incapacitated. The crux of the dispute was whether section 8(10) of the Act applied to his circumstances, as he had been engaged for a period contingent on the completion of the project.

The legal issues before the court were whether section 8(10) of the Act applied to Robertson's employment, which was contingent on the completion of a project, and whether the section could apply when it was not contemplated at the time of injury that the employment would continue or that it was possible for it to continue. The court had to determine whether the statutory provisions regarding the termination of employment and compensation applied to a situation where the employment was intended to end upon the completion of a specific project.

The court held that section 8(10) of the Act did not apply to Robertson's circumstances because it was not contemplated that his employment would continue at the time of his injury, nor was it possible for the employment to continue once the project was completed. The court referred to previous cases such as Bortolazzo v Comcare and Comcare v Burgess to support its reasoning. The court concluded that the statutory provisions for compensation should not apply to a situation where the employment was contingent on the completion of a project and could not continue after the project's completion.

The court set aside the decisions under review and remitted the matter to the respondent for reconsideration, directing that section 8(10) of the Act has no application to Robertson's circumstances. Additionally, the respondent was ordered to pay Robertson's costs of and incidental to the application, to be taxed.

Orders

Orders of the court

1. In application 2008/0463 the Tribunal:

a) sets aside the decision under review;

b) remits the matter to the respondent for reconsideration in accordance with a direction that section 8(10) of the Safety Rehabilitation and Compensation Act 1988 (Cth) has no application to the applicant’s circumstances;

c) orders the respondent to pay the applicant’s costs of and incidental to the application, to the taxed.

2. In application 2008/4098 the Tribunal:

a) sets aside so much of the respondent’s reviewable decision of 7 August 2008 as varied the decision of 8 July 2008;

b) remits that part of the reviewable decision of 7 August 2008 to the respondent for reconsideration in accordance with a direction that section 8(10) of the Safety Rehabilitation and Compensation Act 1988 (Cth) has no application to the applicant’s circumstances;

c) otherwise affirms the reviewable decision of 7 August 2008; and

d) orders the respondent to pay the applicant’s costs of and incidental to the application so far as those costs relate to the issue of the rate of compensation payable for incapacity, to be taxed.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID ROBERTSON