Scott Barrington and Comcare
[2015] AATA 29
•21 January 2015
[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
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:
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
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.
In August 2010 he sought treatment from a podiatrist and was given moulds which assisted him in carrying out his work.
In late September 2010 after receiving the moulds which enabled him to work and assisted his injury, together with financial reasons, the applicant began to apply for overtime and from 27 September 2010 to 30 October 2010, he worked the overtime shifts referred to in the table set out above in paragraph [4].
In October 2010 whilst on shift work the applicant again experienced pain in his right knee, which increased over the next few shifts and caused him to begin walking with a limp to reduce his pain. On 30 October, after an incident, as the result of advice he decided to seek medical attention.
On 8 November 2010 the applicant consulted an orthopaedic surgeon who recommended that he undertake light duties with no excessive walking or standing for 12 weeks. He had a cortisone injection which he found to be of no benefit. His doctor certified him as fit for work with restrictions involving no lifting, no walking more than five metres and no standing for more than five minutes. In late March 2011, his injury continued to deteriorate and he was certified as unfit to work for about three months. As a result of surgery the applicant required physiotherapy for 12 months, which he undertook.
In November 2011 the applicant returned to the work at the Australian Nuclear Science and Technology Organisation. He says that if he had wanted to remain at Sydney Airport he would have needed to comply with testing requirements and due to his knee pain and doctors’ recommendations, he did not believe he would be able to carry out the work and therefore, did not undertake any further overtime following his injury. He is currently not on any restrictions with respect to his condition and has not been on any restrictions since late 2011 or early 2012.
ISSUES
There are three issues in this matter as follows:
(i)First, what is the ‘relevant period’ for the purposes of calculating the applicant’s NWE in accordance with s 8 of the Act? This is the principal issue and has a direct bearing on resolution of the other two issues.
(ii)Second, was the applicant required to work overtime on a regular basis during the ‘relevant period’?
(iii)Third, whether, because of the shortness of the overtime in 2010, the NWE when calculated in relation to the relevant period would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury. (s 8(5)).
First Issue – Relevant Period
S 8 of the Act relevantly provides
Normal weekly earnings
(1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
(NH x RP) + A
where:
"NH" is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
"RP" is the employee's average hourly ordinary time rate of pay during that period; and
"A" is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
(2) Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:
NH x OR
where:
"NH" is the average number of hours of overtime worked in each week by the employee in his or her employment during the relevant period; and
"OR" is the employee's average hourly overtime rate of pay during that period.
(Emphasis added).
The expression ‘relevant period’ is by reason of s 9(1) a reference to the latest period of two weeks before the date of injury during which the employee was continuously employed.
The applicant contends that in the present case the relevant period is the two week period before the date of the injury on 2 November 2010.
The respondent submits that this period is far too short to fairly represent the weekly rate at which the employee was being paid in respect of the employment before the injury. It submits that the relevant period should be therefore modified to a period of twelve months prior to that date, or another alternative period. The respondent says that the shortness of the relevant period justifies a departure from the two week period and says that the periods relied on by the applicant, when looked at in the context of the calendar year, represent only a relatively small proportion of that twelve month period.
The respondent led evidence from Mr Campbell Andrews, a Federal Agent, who was a roster clerk between early 2009 and late 2010 at the airport. He has since left that position and did not have access to records relating to rostering operations at Sydney Airport to refresh his recollection. He described the way the rostering process operated and expressed the general opinion, notwithstanding the substantial overtime served in September/October 2010, that it was his experience at Sydney Airport that working beyond the rostered shift was not a regular occurrence.
Further evidence was led by Ms Buck, on behalf of the respondent. She stated that there was no-one at present with an independent recollection of the specific circumstances relating to Mr Barrington’s shift or the events which led to his commencing overtime on the 27th of September. She conducted searches and was unable to locate daily sheets, but from a roster record she inferred that the reason for the periods of overtime between September/October 2010 was required due to a combination of persons being on sick leave and training courses in that period.
Ms Buck was also asked to look at the question whether, if Mr Barrington had not been injured, the overtime would have continued past 2 November 2010. She looked at the records relating to overtime after 2 November 2010 up to 31 December 2010. She stated that overtime may have been available to Mr Barrington after 2 November but expressed the opinion that it would have been unlikely to be continued at the same rate. She suggested there would have been considerably less overtime available during these two months. However, there was no evidence that Mr Barrington could have reasonably anticipated the unavailability or reduction in the amount of overtime after 2 November. Indeed, having regard to the pattern of regular overtime immediately before that date a continuation of available overtime might be anticipated.
The evidence of Ms Buck has a number of shortcomings which substantially lessen the weight which I give to her evidence. Firstly, she had no direct knowledge of Mr Barrington or his position or the shifts served in the relevant period. Secondly, only part of the records were located or examined by her. Thirdly, her views as to the reasons for overtime between September and November 2010 were general and vague in nature. Fourthly, the selection of the period 2 November to 31 December 2010 is arbitrary insofar as it is relied on to provide any proper basis for establishing the overtime which may have been available to Mr Barrington after the date of injury. Fifthly, the attempted calculation as to the amount of overtime Mr Barrington may have received is highly speculative.
Mr Barrington at the time of the injury was a full time employee and was not a casual, seasonal, or temporary employee: cf ReBradford and Comcare [1994] 37 ALD 187. It cannot be accepted that there was anything seasonal or special in the overtime immediately before 2 November 2010 so as to make it unfairly representative to apply the statutory period.
The overtime applied for, worked and paid for in the period 27 September 2010 to November 2010, extends over a substantial period. It proves a pattern of overtime payments leading up to the relevant date. The two-week period is to be considered in the context of this five week period of overtime paid. Moreover, the selection of 52 weeks, 26 weeks or any other period in the present case, as suggested by the respondent, would not be based on any reasoned or principled grounds.
The fact that the legislation is beneficial must also be taken into account, although I accept that it does not mean that the wording must be read as to provide the most favourable outcome to the employee.
It is important to take into account also that the focus of the entitlement to NWE is by reference to earnings before the injury. On a normal English construction, it would not be unreasonable to apply the two-week period in the present case when considered in the context of the overtime served in 2010, as being a relevant indication as to what is a fair representation of the applicant’s earnings before the injury, and what he might be expected to continue earning if he were not injured. It is not sufficient to simply arbitrarily choose a twelve-month period before the injury, as the respondent has done and contend that it is a fair representation, especially when the default position is a relatively short period of two weeks. The Act specifically contemplates that a two-week period can be, and indeed could normally be taken as the relevant period or standard in the absence of evidence to displace it as the relevant period.
Having regard to the evidence in this matter, I am not satisfied that the statutory specification of the two-week period should be displaced on the basis that applying it would not constitute a fair representation of his NWE. The employee was serving overtime for at least five weeks prior to the injury and receiving payments in respect of overtime and this, in my view, represents a fair representation of his earnings as of 2 November 2010.
Accordingly, the relevant period should be taken as the two-week period prior to 2 November 2010 for the purpose of calculating the NWE.
Second Issue – Whether the applicant was required to work overtime
Respondent refers to the evidence of Mr Andrews, a roster clerk at Sydney Airport, who described the roster system relating to the allocation and performance of overtime during 2009-2010. As roster clerk he would have a spreadsheet with the employees’ names and then identify staff shortages and invite employees who wish to be considered for overtime to provide details in an availability book. There was a spreadsheet which showed the cumulative hours of overtime performed by all officers and an inspector would then allocate the anticipated overtime shift to the officer with the least amount of overtime and would notify the employee in question and write their names into the overtime vacancy. Employees were not required to place their names on the overtime book or nominate for any amount of overtime. He said that there was no consistency at Sydney Airport with respect to how much overtime individual officers would perform.
Having regard to this evidence, the respondent contends in substance that the application for overtime and its allocation is a voluntary arrangement and does not involve any ‘requirement’ or obligation to perform overtime. It is said that the arrangements in this case involved an election or voluntary acceptance or request by the employee to take overtime opportunities and this did not amount to a ‘requirement’ because it did not result from a demand or agreement with the respondent.
The difficulty with this submission is that it is contrary, in my view, to the decision in Telstra Corporation v Peisley [2006] FCAFC 79, where the Federal Court at [34] said that “…We think the word “required”, in this context, includes situations where the employee is placed under obligation by the employer, even by separate agreement, which may not be legally enforceable but which constitutes an authority to work the additional hours…”
The Full Court further noted at [32] that in an Australian workplace, relationships between supervisors and trusted employees are likely to be informal; the language employed by the parties is one of request and agreement rather than command and that the meaning of the word ‘required’ indicates the importance of considering the context in which the word is used. In the modern context the notion of requirement to work must necessarily take into account the nature and extent of the mutuality of the employment arrangement and its particular incidences including the likely relatively informal relationship between the employees undertaking duties and functions and their supervisors.
The approach indicated by the Full Court in Peisley supports the conclusion that the overtime here was a ‘requirement’ in the sense that it was ‘authorised’ by the employer and on acceptance by the employee of the offer to do overtime work there was an informal agreement which may or may not have been enforceable for the employee to carry out that work. The approach taken by the Full Court emphasised the need to realistically consider the practicalities, mutuality and informality of relationships in an employment context and so it follows in this case, that there was a ‘requirement’ to carry out the work as provided for by s 8 of the Act.
Third Issue – Regularity
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.
I certify that the preceding 36 (thirty – six) paragraphs are a true copy of the reasons for the decision herein of The Hon. Mr Brian Tamberlin QC, Deputy President ...................................[sgd].....................................
Associate
Dated 21 January 2015
Date of hearing 25 November 2014 Counsel for the Applicant Mr Adrian Coombes Solicitors for the Applicant Slater and Gordon Counsel for the Respondent Mr Matthew Gollan Solicitors for the Respondent Australian Government Solicitor
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