Rose and Australian Capital Territory (Compensation)

This matter concerned an application by the applicant, Rose, against the Australian Capital Territory (ACT) for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The dispute centred on the calculation of the applicant's normal weekly earnings (NWE) for the purposes of incapacity payments. The applicant had been employed by the ACT Government and, prior to his injury, had held a substantive position as a Senior Officer Grade A. Concurrently, he entered into an Attraction and Retention Incentive (ARIn) agreement for his substantive role and also occupied a Higher Duties Position as Executive Branch Manager People Management under a series of short-term contracts, which carried significantly increased remuneration. The core issue before the ACT Civil and Administrative Tribunal (ACAT) was whether subsection 8(10) of the SRC Act required a reduction in the applicant's NWE.

The legal issue before the Tribunal was whether the applicant's NWE, as calculated under subsections 8(1) to (9G) of the SRC Act, exceeded the amount he would receive if he were not incapacitated for work. This required the Tribunal to determine the proper application of subsection 8(10) of the SRC Act, which provides for a reduction in NWE if the calculated amount is greater than the weekly earnings the employee would have received had they not been incapacitated. The respondent, the ACT, contended that subsection 8(10) should be applied to reduce the applicant's NWE due to changes in his workplace roles and entitlements following his departure from the workplace.

The Tribunal considered that there was no dispute that the applicant's NWE, calculated without reference to subsection 8(10), would be based on his earnings in the Higher Duties Role. The Tribunal's task was to ascertain whether the respondent had established that the applicant's NWE, as calculated under subsections 8(1) to (9G), exceeded the amount he would receive if he were not incapacitated. The Tribunal found that the respondent had failed to establish this crucial element. Consequently, the decision of the respondent to reduce the applicant's NWE was set aside.