Scott Barrington and Comcare

Case [2015] AATA 29

[2015] AATA 29

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/4804

Re

Scott Barrington

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

The Hon. Mr Brian Tamberlin QC, Deputy President
Date 21 January 2015
Place Sydney

The reviewable decision dated 31 July 2013 is set aside and in substitution the Tribunal decides that Mr Barrington was required to, and did, work overtime on a regular basis at an average of ten hours per week during the relevant two-week period. Pursuant to s 8(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), this overtime must be taken into account when determining Mr Barrington’s normal weekly earnings.

..................................[sgd]......................................

The Hon. Mr Brian Tamberlin QC, Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employee – normal weekly earnings – ‘relevant period’ – requirements – ‘regular’ – whether period of overtime should be included in calculation of normal weekly earnings – decision under review set aside and substituted

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 (Cth) s 8(2), 8(5), 9(1)

CASES

Telstra Corporation Ltd v Peisley [2006] FCAFC 79

Re Bradford and Comcare Australia [1994] 37 ALD 187

REASONS FOR DECISION

The Hon. Mr Brian Tamberlin QC, Deputy President

21 January 2015

  1. This application seeks review of a decision of the respondent dated 31 July 2013, affirming an earlier decision under s 8(2) of the Safety Rehabilitation and Compensation Act 1988 (‘The Act’) that the applicant’s normal weekly earnings (‘NWE’) did not include overtime.

    BACKGROUND

  2. The applicant is employed by the Australian Federal Police (‘AFP’). Between 2003 and 2010 he was stationed with the Australian Nuclear Science and Technology Organisation at Lucas Heights, New South Wales. On 11 January 2010 he transferred to a position which involved him being stationed at the Sydney Domestic and International Airport. He sustained a leg injury on 2 November 2010, for which Comcare accepted liability under s 14 of the Act.

  3. The applicant then submitted claims for time off work (‘TOW’) to access incapacity payments in accordance with s 19.

  4. On 4 April 2011 the applicant asked Comcare to decide whether he would qualify to have certain overtime amounts included in the calculation of his NWE. The applicant advised that he worked the following overtime hours over three separate fortnightly pay periods in the period prior to the date of injury:

Date Overtime
27 September 2010 10 hours
2 October 2010 10 hours
11 October 2010 16 hours
16 October 2010 10 hours
21 October 2010 8 hours
25 October 2010 10 hours
30 October 2010 10 hours

  1. Comcare noted that the overtime hours set out in the above table were the only overtime hours worked by the applicant in the 52 week period immediately before his date of injury on 2 November 2010. The respondent determined the entitlement to incapacity payments based on a NWE figure which did not include any overtime.

  2. The applicant requested reconsideration of the determination, stating that prior to taking up the role at the airport he had worked overtime on a regular basis for a period…

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Details
AGLC
Scott Barrington and Comcare [2015] AATA 29
Case
[2015] AATA 29
Decision Date

CaseChat Overview and Summary

In the matter of Scott Barrington and Comcare, the Federal Circuit Court was tasked with determining whether overtime payments should be included in the calculation of the applicant's normal weekly earnings (NWE) for the purpose of incapacity payments under the Safety Rehabilitation and Compensation Act 1988. The applicant, an Australian Federal Police officer, sought to have his overtime payments considered in his NWE calculation following a leg injury sustained on 2 November 2010. Comcare had previously determined that the applicant's NWE did not include any overtime. The applicant argued that he had worked overtime regularly prior to his injury and that his decision not to seek overtime between November 2009 and September 2010 was due to personal circumstances and health issues.

The central legal issue before the court was whether the period of overtime should be included in the calculation of the applicant's NWE. This hinged on whether the overtime worked by the applicant was part of a regular pattern and thus should be included in the NWE calculation under s 8(2) of the Act. The court had to decide on the relevant period to determine the regularity of the overtime, and whether the two-week period immediately prior to the injury could fairly represent the applicant's NWE, including overtime. The applicant argued that the five-week period of overtime immediately preceding his injury should be considered, while Comcare maintained that the two-week period was the appropriate measure.

The court found that the relevant period for determining the regularity of the overtime was the two-week period immediately before the injury, as specified by s 9(1) of the Act. The court concluded that the evidence supported the finding that the applicant had worked overtime regularly during this period. The court noted that the applicant had worked over 180 hours of overtime in the nine-month period prior to his daughter's birth and had a pattern of overtime payments in the five weeks immediately before his injury. Despite the applicant's personal reasons for not seeking overtime between November 2009 and September 2010, the court determined that these interruptions did not negate the regularity of the overtime worked immediately prior to the injury. Consequently, the decision under review was set aside, and the court substituted its decision that the applicant was entitled to have his overtime included in the calculation of his NWE. The court found that the applicant was required to and did work overtime on a regular basis, averaging ten hours per week during the two-week period immediately before the injury.

Orders

Orders of the court

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Background

Background to the litigation

This application seeks review of a decision of the respondent dated 31 July 2013, affirming an earlier decision under s 8(2) of the Safety Rehabilitation and Compensation Act 1988 (‘The Act’) that the applicant’s normal weekly earnings (‘NWE’) did not include overtime.BACKGROUND The applicant is employed by the Australian Federal Police (‘AFP’). Between 2003 and 2010 he was stationed with the Australian Nuclear Science and Technology Organisation at Lucas Heights, New South Wales. On 11 January 2010 he transferred to a position which involved him being stationed at the Sydney Domestic and International Airport. He sustained a leg injury on 2 November 2010, for which Comcare accepted liability under s 14 of the Act. The applicant then submitted claims for time off work (‘TOW’) to access incapacity payments in accordance with s 19. On 4 April 2011 the applicant asked Comcare to decide whether he would qualify to have certain overtime amounts included in the calculation of his NWE. The applicant advised that he worked the following overtime hours over three separate fortnightly pay periods in the period prior to the date of injury: Comcare noted that the overtime hours set out in the above table were the only overtime hours worked by the applicant in the 52 week period immediately before his date of injury on 2 November 2010. The respondent determined the entitlement to incapacity payments based on a NWE figure which did not include any overtime. The applicant requested reconsideration of the determination, stating that prior to taking up the role at the airport he had worked overtime on a regular basis for a period in 2009 but that his overtime work and payments were interrupted by the birth of a child and the need to take paternity leave and other commitments to his family and for this reason he did not apply for any further overtime until around September 2010. It is common ground that prior to the date of injury the applicant had worked in the period of September to October 2010 for a period for about 5 weeks and had been paid overtime in respect of the hours set out in the above table. The applicant has given evidence that his pay slips show that from 5 March 2009 to 28 October 2009 he worked more than 180 hours overtime. However on 4 November 2009 his daughter was born and since that time, up to September 2010, he decided to work at home and stop placing his name on the overtime availability list. His wife did not have a drivers’ licence and because she had medical appointments and medical testing was needed for his daughter the applicant decided to assist with the care of the child and not seek to work overtime. By way of further explanation for not seeking overtime in 2010, the applicant says that in June 2010 he began to suffer from pain in his heels and knees whilst wearing police footwear at work. For the next couple of months he attempted to carry on despite the pain. However it became more severe and he found that he could not sleep well and he would wake up from pain at night. This problem subsequently developed into the need to limp in an effort to take his weight off his heels.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This question turns on the selection of the ‘relevant period,’ as the respondent concedes that if the relevant period is the two-week period immediately before the injury then there was a ‘regular pattern’ of overtime. Furthermore, I consider in the present case that the payment, dates and hours worked in the five week period prior to the date of injury can be said to show a regularity or pattern of payment or a symmetry and the overtime payments can therefore be said to have been ‘regular’. CONCLUSION For the above reasons I consider that the ‘relevant period’ in the present case is the two-week period immediately before the date of injury in accordance with s 9(1) of the Act. I do not consider that the evidence is sufficient to support a conclusion that the two-week period does not fairly represent the NWE in relation to the payment of overtime. I also conclude that the applicant was ‘required’ to perform such work and that as at the date of the injury, the requirements were ‘regular’ within the meaning of s 8(2). The decision under review is set aside and the Tribunal substitutes the decision that the applicant has an entitlement to have his overtime included in the calculation of his NWE before the injury and that it has been established that he was required to and did work overtime on a regular basis during the two-week period for an average of ten hours per week.

Ratio Decidendi

Legal Principle Established

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