Shillingford and Comcare (Compensation) - [2019] AATA 4972

Shillingford and Comcare (Compensation) [2019] AATA 4972 (26 November 2019)
Division:GENERAL DIVISION
File Number(s): 2018/0159
Re:Kym Shillingford
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal: Deputy President Gary Humphries AO
Date:26 November 2019
Place:Canberra

The reviewable decision dated 8 November 2017 is affirmed.
............................................................
Deputy President Gary Humphries AO
Catchwords
COMPENSATION – incapacity for work – calculation of normal weekly earnings – where Applicant was employed on a non-ongoing basis with irregular or intermittent duties – whether arrangement was a contract of employment – where broader industry in which the Applicant was employed experienced a major downturn – decision under review affirmed
Legislation
Public Service Act 1999
Safety, Rehabilitation and Compensation Act 1988
Cases
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Australian Education Union v Department of Education and Children's Services [2012] HCA 3
Ball v Hunt [1912] AC 496
Bortolazzo v Comcare (1997) 75 FCR 385
Certain Lloyd’s Underwriters Subscribing to Contract No1H00AAQS v Cross [2012] HCA 56
Comcare v Burgess [2007] FCA 1663
Comcare v Simmons [2014] FCAFC 4
Comcare v Thompson (2000) 100 FCR 375
Dunstan v Comcare (2014) 139 ALD 691
Holis v Vabu Pty Ltd [2001] HCA 44
John Holland Group Pty Ltd v Robertson [2010] FCAFC 88
Lysons v Andrew Knowles & Sons Ltd [1901] AC 79
Nash v Sunshine Porcelain Potteries Ltd (1960) 101 CLR 353
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
REASONS FOR DECISION
Deputy President Gary Humphries AO
26 November 2019
INTRODUCTION

Mr Kym Shillingford has an accepted claim for open fracture of rib(s) (right) and right partial tear of rotator cuff sustained on 23 February 2017. The accepted injury occurred while he was working as a Food Safety Meat Assessor (FSMA) with the Department of Agriculture and Water Resources (the Department).
Mr Shillingford received weekly incapacity payments pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) until 11 September 2017, when Comcare made a determination denying liability for ongoing incapacity payments pursuant to s 8(10) of the Act. Following a request for reconsideration of this determination, Comcare issued a reviewable decision dated 8 November 2017 in which it affirmed the cessation of incapacity payments, but varied the determination to reflect that this was done pursuant to s 19, rather than s 8. Mr Shillingford has sought merits review by the Tribunal of that decision.
At a directions hearing by telephone held on 16 May 2019, the parties advised the Tribunal that the sole issue for determination is what, if any, entitlement Mr Shillingford has under ss 19(2) and 8(10) of the Act. The matter then proceeded to a hearing on 28 August 2019 at which, after brief opening submissions, the parties and Tribunal were minded to determine this matter on the papers.
FACTS
Mr Shillingford is 64 years of age. Upon finishing school Mr Shillingford trained as a butcher and worked in that trade for a period, and later as a meat inspector. From 2011 he was employed on a casual basis as a non-ongoing APS employee pursuant to s 22(2)(c) of the Public Service Act 1999 (the PSA). He had various short engagements as a meat inspector with the Department. He lives in Corowa, New South Wales.
Mr Shillingford was working at an abattoir in Cobram, Victoria on 23 February 2017 pursuant to his employment when he tripped and sustained his compensable injury of open fracture of rib(s) (right) and right partial tear of rotator cuff.[1] He went off work the following day and has not been engaged by the Department since then. There was no dispute before the Tribunal that the injury resulted in him becoming incapacitated for work.
[1] The use of italics in this decision generally indicates a direct quotation.
By a determination dated 9 May 2017 Comcare decided that Mr Shillingford’s normal weekly earnings pursuant to s 8 of the Act were $1,362.88 gross per week for normal weekly hours of 22.23 hours per week. That calculation is also not in dispute in these proceedings.
The Department approved a rehabilitation plan for him on 4 May 2017. Pursuant to that plan Mr Shillingford was assessed for determining his fitness for rehabilitation by Dr Phillip Haynes, an occupational physician, on 27 July 2017. Dr Haynes diagnosed right shoulder rotator cuff tears, tendinosis and bursitis, which would cause restrictions on lifting of more than 5kg and undertaking work involving any forceful pulling or pushing using his arm. The rehabilitation program was closed on 3 October 2017, at which time it was noted that Mr Shillingford was unable to achieve his Rehabilitation goal of pre-injury hours and duties due to his pre-injury employment site ceasing trade.
Comcare tendered a statement of Mr Dale Eyers, who held the position of Assistant Director, Veterinary and Export Meat Services South with the Department. Mr Shillingford did not object to the Tribunal considering Mr Eyers’ statement in the absence of his oral evidence. In the statement, he said that abattoirs at Deniliquin and Cobram closed in March 2017. The only abattoirs operating in the region around Corowa were at Wodonga and Tongala, but permanent (i.e. not casual, like Mr Shillingford) FSMAs were available to work at those locations. He said:
As a result of the situation… no work would have been offered to Mr Shillingford after March 2017 (even if he had been fit to work).
Though not explicitly stated, it appears as if the situation to which he refers includes a general downturn in the industry at that time, and since.
As Mr Shillingford made no submissions contrary to this evidence, the Tribunal takes Mr Eyers’ evidence as not being in dispute.
THE RELEVANT LEGISLATION
Subsection 19(2) of the Act provides that:
Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE - AE
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee's normal weekly earnings.
Subsection 8(1) provides that:
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.
Further subsections of s 8 then deal with specific issues which arise in the application of the formula in s 19. These include where overtime is worked, where the employee is part-time or a volunteer, adjustments for automatic increments in pay rates, and so on. Subsection 8(10) provides, finally, that:
If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:
(a) where the employee continues to be employed by the Commonwealth or a licensed corporation—the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or
(b) where the employee has ceased to be employed by the Commonwealth or a licensed corporation—whichever is the greater of the following amounts:
(i) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;
(ii) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;
the amount so calculated shall be reduced by the amount of the excess.
THE ISSUES BEFORE THE TRIBUNAL
The issue in dispute here is what compensation Mr Shillingford is entitled to receive for any incapacity for work pursuant to the formula in s 19(2).
The compensation formula in s 19(2) is dependent on the determination of NWE, being the amount of an employee’s normal weekly earnings calculated under s 8. Both parties agreed that the key provision in that section is subsection (10), which operates to reduce an employee’s normal weekly earnings where the “normal” calculation of normal weekly earnings would exceed a certain threshold. Where it does, the normal weekly earnings are reduced by the amount of the excess over the threshold.
The threshold operates differently depending on whether the employee continues to be employed by the Commonwealth (s 8(10)(a)) or has ceased to be employed by the Commonwealth (s 8(10)(b)). The relevant date for this purpose is 11 September 2017, the date of Comcare’s reviewable decision. Comcare maintains that Mr Shillingford was an employee on the relevant date; Mr Shillingford submitted that he was not, having ceased to be an employee the day after he incurred his injury, i.e. 24 February 2017.
For the reasons provided below, the Tribunal finds that Mr Shillingford was an employee of the Commonwealth (through the Department) on 11 September 2017. His entitlement to incapacity compensation is therefore determined by s 8(10)(a). It finds, applying the calculation in that paragraph, that Mr Shillingford’s entitlement to incapacity payments would be nil.
CONSIDERATION
Was Mr Shillingford employed by the Commonwealth on 11 September 2017?
Mr Shillingford was made an Offer of Engagement by the Department on 5 June 2015. This was by means of a letter bearing that date, in which he was advised:
…This offer of engagement is made under section 22(2)(c) of the Public Service Act 1999 (the Act) and is for irregular or intermittent (casual duties). If you accept this offer you will be placed into a pool of casual employees and work may be offered to you during peak periods and other periods when the department is unable to meet its work demands through its ongoing staff.The department is under no obligation to offer you work and you are under no obligation to accept work that may be offered. You should not have an expectation of regular employment hours or ongoing employment with the department… [emphasis in original]
The letter went on to stipulate that the terms and conditions of your employment would be governed by the PSA, including the APS [Australian Public Service] Values, the APS Code of Conduct and the Employment Principles to which the PSA refers.
It appears that this offer of employment was the basis on which he was working at Cobram on 23 February 2017 when he was injured.
On 9 June 2017, after his injury and while he was not working, the Department wrote to Mr Shillingford again, making him an offer for non-ongoing (casual) employment as a Food Safety Meat Assessor…in accordance with section 22 (1) of the PSA. The letter stipulated:
…If you accept this offer you will be placed into a pool of casual employees and work may be offered to you during peak periods and other periods when the department is unable to meet its work demands through its ongoing staff. The department is under no obligation to offer you work and you are under no obligation to accept any work that may be offered. You should not have an expectation of regular employment hours or ongoing employment with the department. Work will be offered according to departmental needs, which may be irregular or at short notice.
The Tribunal had before it a copy of what appeared to be an undated electronic document entitled Assessment Form – Food Safety Meat Assessor. The personal details outlined in the document are Mr Shillingford’s. The penultimate question in the form – Do you accept this offer of employment? – was answered Yes, I accept the offer of employment and agree to the terms and conditions described in the Notice of Engagement…
Comcare asserted that the letter of 9 June 2017 making an offer of employment was the basis on which Mr Shillingford remained employed with the Department until 6 July 2018. That assertion was not challenged by Mr Shillingford, though he disputed that in fact he was employed beyond 24 February 2017. However, I do not understand him to be asserting that he did not accept the offer made in the letter of 9 June 2017. Rather, I understand him to be submitting that the arrangement entered into pursuant to that letter was not, in substance, a contract of employment. Indeed, in his submissions to the Tribunal he argued that the engagement pursuant to the letter of 5 June 2015 was also not actual employment (at least not after 23 February 2017).
For the purposes of the present enquiry there appears to be no substantive difference between the offers made to Mr Shillingford in June 2015 and June 2017. The former offers engagement as a non-ongoing employee for irregular or intermittent (casual) duties, while the latter offers non-ongoing (casual) employment. Both purport to make an offer of employment. It is clear that the arrangements apparently entered into on the basis of these offers took the form of contracts of employment pursuant to s 22 of the PSA.
Mr Shillingford’s argument, however, is that the substance of these arrangements following the injury in February 2017 was not one of employment. He contends that, as a non-ongoing temporary employee who has not been engaged for any actual work by the Commonwealth since his injury resulted in incapacity, he is not, in fact, an employee of the Commonwealth, and his entitlement to incapacity payments while he is unable to work should be determined by s 8(10)(b). Specifically, he argued:
The engagement under s 22(2)(c) for duties that were irregular or intermitted is not actual employment and, by operation of the PSA not employment as an “ongoing APS employee”. Mr Shillingford could have no expectation of employment as the instrument under s. 22(2)(c) could not do so and merely placed his name into “a pool of casual employees” who might be offered employment. The Department remained under no obligation to offer work.
As it happened, after 24 February 2017 Mr Shillingford was not employed and the Department did not offer work.
The Tribunal cannot accept this contention. It is clear from the language of s 22 that a contract of employment pursuant to the PSA may be for duties which are irregular or intermittent (subsection (2)(c)). The offer which forms the basis for the contract makes it clear that the Department was under no obligation to offer Mr Shillingford work; it warned him that he should have no expectation of regular employment hours or ongoing employment. This loss of certainty about actual work was reflected in the provision Mr Shillingford would be under no obligation to accept any work the Department offered. Yet these conditions were offered (and accepted) under the umbrella of a contract of employment.
In his submission, Mr Shillingford accepted that this arrangement prior to 23 February 2017 constituted a contract of employment (see paragraph 48 of his submission of 9 September 2019). It is difficult to understand how an arrangement which foreshadowed the contingency of no work being forthcoming could be characterised as a contract of employment, while one under which no work was actually forthcoming would not be so characterised. And to argue, as Mr Shillingford seems to do, that being engaged as a non-ongoing employee is not to be engaged as an employee at all flies in the face of the language used in s 22(2), where employment may be entered into as an ongoing …employee (pursuant to paragraph (a)) or, by implication, as a non-ongoing employee pursuant to paragraphs (b) or (c).
It appears to the Tribunal that there was no substantive change in Mr Shillingford’s employment status vis-à-vis the Department either before or after the accident on 23 February 2017, or for that matter before or after the contract renewal in June of that year. At each point Mr Shillingford was a non-ongoing employee of the Department, the only difference being that he was offered work before 23 February but not after it. The contract of employment contemplated both eventualities.
Mr Shillingford argued that none of the real indicia of ongoing employment are met in his case after 23 February 2017:
…there is no provision of service under a contract, no work for wages let alone capacity for submission to employer direction (there having to be a need for offer and acceptance of engagement and explicitly no obligation on either party to do so).
He referred the Tribunal to the High Court’s consideration in Holis v Vabu Pty Ltd [2001] HCA 44 for a discussion on the criteria which define the employer-employee relationship.
That submission, however, misses the point. In fact the Tribunal is not persuaded that a non-ongoing contract, where engagement for work is irregular or intermittent, fails to meet the criteria as described in Holis for a contract of employment. But even if it were so persuaded, it matters not. The point is that s 22(2)(c) of the PSA deems that such an arrangement is a contract of employment, whatever the position at common law.
I also accept the view put by Comcare that a contract of employment may exist notwithstanding the non-performance of actual work. As the Tribunal noted in Dunstan v Comcare (2014) 139 ALD 691 at [56]:
Even though the overall conception of “employment” under the 1922 PS Act embraces conceptions of duty and service, an employee’s underlying employment may persist even if one or both of these elements is not present. An APS officer’s employment may continue even though the officer is classed as an “excess officer” under s 7(3), or he or she has become an “unattached officer” (see s 29D, for example), or the officer is suspended from duty for a time under s 63B or s 63C, or is deemed to be on leave of absence without pay under s 63R. In each of these cases the officer may not be required, permitted or able to attend for duty or to undertake the duties of an office, and he or she may or may not receive any earnings, week by week, during the period of suspension, but his or her employment will persist under the terms of engagement and the 1922 PS Act unless it is terminated.
Mr Shillingford further argued, as a matter of statutory interpretation, that the provisions of s 19 conferring an entitlement to compensation in the event of a workplace injury must not be read down unnecessarily by the more specific provisions of s 8. He argued that the approach taken by Comcare:
(a)fails to interpret the provisions having regard to the purposes of the Act, as a remedial statute, intended to confer benefits upon employees who suffer injury that results in incapacity so that they cannot earn an income and thereby suffer hardship;
(b)fails to give effect to the conferral of primary rights to weekly compensation for lost capacity for work (s 19) by reference to a subordinate, quantification provision (s 8);
(c)fails to quantify the entitlement to weekly compensation by reference to the earnings in the actual employment when the injury was sustained, that is, by reference to the capacity that was destroyed by the injury and looks to some other capacity when not employed.

It was asserted that primacy must be given to the right to compensation over clauses dealing merely with computation.
Comcare’s response to these arguments was as follows:
While Comcare obviously accepts the beneficial nature of the SRC Act, it rejects the contention that the Tribunal’s analysis of the proper construction of section 8(10) in the present proceeding can be simplified to a reliance on that general statement of beneficial purpose and an assumption about the ‘primary’ and ‘subordinate’ relationship of sections 19 and 8(10) of the SRC Act (an assumption which relies heavily on decisions concerning differently worded workers compensation legislation). Rather, the Tribunal ought to apply the principles governing the modern approach to statutory construction as set down in recent High Court authority. The modern approach articulated in those cases emphasises:
a)First, the centrality of the text as the starting point. In other words, “the process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose” (Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 86 ALJR 217 at [26]).
b)Second, the meaning of the text may require consideration of its context, which includes the general policy and purpose of a provision, and in particular, the mischief it is seeking to remedy (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47] and Certain Lloyd’s Underwriters Subscribing to Contract No1H00AAQS v Cross [2012] HCA 56 at [23]). The context and purpose of a provision are important because as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355: "[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute" (emphasis added).
In this regard, it is significant that through the formula it describes, section 19(2) takes as its starting point the “normal weekly earnings” of an incapacitated person to work out the amount of compensation to be paid to an employee who is incapacitated for work.
… it is not sufficient simply to say that section 19 sets out an entitlement to compensation. Construed according to the actual text of the statute and in the context of surrounding provisions, section 19 establishes an entitlement to compensation according to a formula that hinges upon the concept of “normal weekly earnings”. That concept is defined in section 8 such that the normal weekly earnings are adjusted over time.
… as pointed out in Comcare v Simmons [2014] FCAFC 4 (at [62]):
[62] For the reasons explained below, NWE is calculated in accordance with a formula in s 8(1) of the Act which is calibrated or updated by various factors in the succeeding provisions. These have the apparent purpose of ensuring (to the extent possible) that NWE represents the real value over time of the employee’s likely earnings on the hypothesis that he or she had not suffered the injury but continued in his or her pre-injury employment. As Finn J explained in Comcare v Thompson (2000) 100 FCR 375; 175 ALR 163; [2000] FCA 790 at [3] (Thompson) with respect to an incapacitated employee no longer employed by the Commonwealth:
[3] ...a purpose of the Act is to make some provision (reflected in the compensation payable) for the employee’s participation in what I will loosely describe as changes in remuneration that the employee would have enjoyed had he or she remained in the Commonwealth’s employment. Section 8 of the Act evidences that purpose in the manner in which it allows for adjustments to be made to normal weekly earnings to take account of types of predictable salary increases and payments.
Accordingly, Comcare rejects the Applicant’s contention that section 19 is ‘primary’ and section 8 is ‘subordinate’ and that this somehow means that there is no possibility of the amount of compensation payable under section 19 ever being reduced to nil.
The Tribunal accepts these contentions by Comcare. In adopting this view, I would only add that, in considering the general purpose of the Act, it is far too broad a statement to describe this as the conferral of benefits upon an employee who suffers injury that results in incapacity. The Act, running to almost 300 pages, is far more fine-grained than that. Even if that description were accepted as the starting or default position, it must be applied to take account of the whole spectrum of important principles which make up the workers compensation jurisprudence and which the legislation encompasses. One of those principles, relevant to the present circumstances, was articulated by Heerey J in Bortolazzo v Comcare (1997) 75 FCR 385 in these terms (at 388):
The provision of compensation is to operate from week to week: see for example, the detailed formulae in s 19. The underlying policy is that an injured employee should not be worse off during the period of incapacity as the result of work-related injury. However, it follows conversely that the injured employee should not be better off.
(Emphasis added.)
The thrust of Mr Shillingford’s submissions rest on the assertion that his loss of capacity to earn is a result of the workplace injury he sustained on 23 February 2017. The factual background to his claim does not, however, support that claim. That background, which is not disputed, is that Mr Shillingford would not have earned any income pursuant to his employment with the Department even if he had not been injured, due to the general downturn in the industry. On this premise, the awarding of incapacity compensation would leave him in a better position than if he had not been injured. This observation does not, of itself, defeat his claim, but does counter the proposition that a failure to award compensation here would violate important principles to which the Act gives expression.
As Comcare’s submissions point out, Mr Shillingford’s entitlement to compensation is regulated by the availability to him of work had he not been injured. If such work does in the future become available, his entitlement to incapacity compensation may be enlivened.
Mr Shillingford cited several decisions which, as he put it, reject the use of quantification schedules…to dismiss or limit claims for compensation: Dixon CJ in Nash v Sunshine Porcelain Potteries Ltd (1960) 101 CLR 353 at 361; the House of Lords in Lysons v Andrew Knowles & Sons Ltd [1901] AC 79; Lord Macnaghten in Ball v Hunt [1912] AC 496 at 500. Insofar as they set out general principles, these authorities stand but they have, with respect, no particular insight to offer in the statutory interpretation exercise to which the present proceedings give rise.
The Tribunal finds that Mr Shillingford was employed by the Commonwealth on 11 September 2017 and, in consequence, his entitlement to incapacity payments falls to be determined under s 8(10)(a).
What is Mr Shillingford’s entitlement to incapacity payments on 11 September 2017 under s 8(10)(a)?
Applying the calculation in s 8(10)(a) in Mr Shillingford’s circumstances, Comcare contends that, on the basis of Mr Eyers’ evidence, the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work would be nil. Since there was no available work, he would have earned nothing even if not incapacitated. If the threshold so calculated is nil, then the excess is the full amount of normal weekly earnings calculated under s 8(1) (i.e. $1,362.88). Once that excess is deducted from the normal weekly earnings, the balance is nil.
Comcare concedes that no previous decision of a court or tribunal has applied the calculation in s 8(10)(a) in precisely this way. However, the circumstances in Dunstan were analogous to the present proceedings, it contended. In particular, the Tribunal there applied the reasoning of Dowsett J in John Holland Group Pty Ltd v Robertson [2010] FCAFC 88, as follows:
65. Of s 8(10)(a), in John Holland Pty Ltd v Robertson, Dowsett J said -
74. Clearly, s 8(10) seeks to limit the compensation payable to an injured employee by reference to his or her notional earnings derived from employment with the same employer had he or she not been injured. Section 8(10)(a) demands a notional enquiry which commences with the employee’s actual current employment. The enquiry is as to his or her earnings in that employment had he or she not been injured. Such enquiry would involve consideration of how, in those circumstances, the employee would have been employed, including consideration of whether he or she would have continued to perform the same duties as were being performed at the time of the accident.
66. Engaging in the notional enquiry the section requires, but for the injury occasioning subsequent incapacity for work, the circumstances that led to Mr Dunstan being suspended from duty and that caused him to be held in custody do not fall away. Mr Dunstan’s suspension from duty and his leave of absence while in custody was not predicated upon incapacity resulting from injury. Rather it arose from alleged misconduct.
67. It follows that, absent incapacity, the weekly amount Mr Dunstan would earn in his employment from 1 November 1998 to 25 May 1999 is the amount that he would earn while suspended from duty without pay and while taken to be on leave of absence without pay - $0 per week, subject to exercise of the discretion to pay him an amount of salary on hardship grounds. Conceivably, without incapacity for work, Mr Dunstan’s circumstances may not have been sufficient to cause the Secretary to pay him part of his salary on hardship grounds while he was suspended from duty – subject to obtaining any requisite approvals, he may have been able to earn income in other employment for example. But this was not agitated and it is entirely conjectural.
…
69. On balance, having regard to the facts, I think the better course is to conclude that the notional amount MrDunstan could be expected to earn from 1 November 1998 to 25 May 1999, absent incapacity, is $0 each week, but for the weeks in which discretionary payments of part salary were made. I accept that, had the injury not occurred, the notional amount he could be expected to earn during these weeks, from 1 November 1998 to 31 March 1999, is the amount he was paid in part salary under the applicable terms and conditions of his ongoing employment by the ATO - $1,153.85 per week. If I am wrong to include this amount in the hypothetical exercise required under s 8(10)(a), the notional amount he would earn is $0 per week during this period. This does not assist MrDunstan or produce a different overall result.
(Footnotes omitted.)
Applying this approach in the present circumstances, and substituting a lack of available work for being unable to work while in custody, the outcome is that Mr Shillingford’s normal weekly earnings would be nil.
Mr Shillingford argues that this approach, however, is inconsistent with the decision of Greenwood J in Comcare v Burgess [2007] FCA 1663. His Honour held at [26]:
Had the legislature intended that suspension of employment would bring about a reduction of normal weekly earnings to nil for the purposes of a formula quantifying the amount of weekly compensation under s 19(3) during a period of incapacity for work, the legislature would have expressly provided for that result. It did not do so. Although Ms Burgess continues to be employed by the Commonwealth in the sense that the contract of employment is ‘on foot’ and employment has not been terminated nor ‘ceased’ (see s 8(10)(b)), the continuity of employment contemplated by s 8(10)(a) is continuity of provision of service and receipt of earnings not simply a subsisting employer/employee relationship. A suspension of employment is not an event contemplated by the section as an element of its operation or purpose. Its purpose is to strike a comparison of pre-injury normal weekly earnings (otherwise determined by the earlier subsections of s 8) with continuity of earnings that would have been received based upon Ms Burgess’s provision of service and receipt of earnings.
However, as Comcare contended, there is some doubt that Burgess can be regarded as authoritative in light of the Full Federal Court’s decision in Robertson. There Dowsett J (with whom Spender J agreed) made these observations (at [66], [72]-[73]):
66. In Richards the deputy president referred to various sections of the Act in which the word "employment" appears, seeking to identify any consistency of usage. He concluded that it would be unwise to assume that the word is used in the Act with a consistent meaning. However, in my view, guidance is to be found in other sections of the Act. In s 4 the term "place of work" is defined as including "any place at which an employee is required to attend for the purpose of carrying out the duties of his or her employment". This definition suggests that the term "employment" encompasses the duties which an employee is engaged to perform. The term "injury" is defined in s 5A. The word means, inter alia, "an injury suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment". A similar formula is used in defining "aggravation" of an injury and, in s 5B, in defining the term "disease". If the Act contemplates a connection between an injury or disease and the employee’s employment, then it must be possible to determine the ambit of such employment, and whether the circumstances in which the injury arose were within that ambit. This suggests a focus on what was done rather than upon trade, calling or any system of classification.
…
72. … Whilst care must be taken in using these special provisions as informing the meaning attributable to the word "employment" in other parts of the Act, they suggest that the entitlement conferred upon each office-holder is in respect of injury suffered whilst performing his or her duties. It is fairly clear that the general intention of the Act is to that effect.
73. Although none of this is definitive, it seems to be more consistent with the purpose of the Act to treat the word "employment", when used in the Act, as describing rather more than a trade, calling or classification of employees. The Act is very much concerned with conditions in which employees work and their terms of engagement, rather than how they may be classified.
This analysis was referred to with approval by the full Federal Court in Comcare v Simmons [2014] FCAFC 4 at [86].
The Tribunal in Dunstan was persuaded that, notwithstanding Burgess, the calculation in s 8(10)(a) can lead to an outcome where incapacity payments are nil. I am also of the view that this can occur, and should occur in this case, in accordance with the language of the subsection. Accordingly, I find that Mr Shillingford’s entitlement to incapacity payments under s 8(10)(a) is nil.
What would Mr Shillingford’s entitlement to incapacity payments on 11 September 2017 be under s 8(10)(b)?
Although it is unnecessary, in light of the Tribunal’s finding under s 8(10)(a), to determine what Mr Shillingford would be entitled to if he were no longer employed and s 8(10)(b) governed his entitlements to incapacity payments, I note that the parties disagree on what the outcome would be in this eventuality.
Without coming to a concluded view on this question, I do note the approach taken by Member Webb to this question in Dunstan:
70. I note in passing that even had I decided that Mr Dunstan’s ‘employment’ did not continue through these periods for the purposes of s 8(10), such that s 8(10)(b) applied, no different result would be obtained under the notional exercises required by s 8(10)(b)(i) and (ii) of the SRC Act.
71. Considering s 8(10)(b)(i), if Mr Dunstan’s employment at the date of his injury continued until 25 May 1999, subject only to changes in applicable industrial instruments and rates of pay, the notional amount he would earn each week after 1 November 1998 would be affected by the circumstances of his suspension from duty without pay and his incarceration, technically deemed to be leave of absence without pay. There is no basis to ignore these circumstantial factors when applying s 8(10)(b)(i). Nor is there any basis to disapply the relevant provisions of the 1922 PS Act and the 1998 Agreement, which continued to apply.
72. In the result, the notional amount Mr Dunstan would likely earn while suspended from duty without pay and while he was held in custody would be $0, unless he was paid part of his salary on hardship grounds under s 63C(2)(a)(ii) or under s 63R(2) of the 1922 PS Act, as happened. Thus, in those weeks from 1 November 1998 to 31 March 1999, the notional amount he would have earned would be $1,153.85 per week if the discretionary payment is included.
73. Consideration of s 8(10)(b)(ii) produces no different result. The employment in which Mr Dunstan was engaged on 1 November 1998 is that of an Executive Level 2 officer on suspension from duty without pay and, from 4 December 1998, on leave of absence without pay. Assessment of the notional amount Mr Dunstan would earn if either employment was taken to continue requires application of the actual terms of those employments, subject to changes in circumstance.
Applying this approach in the present proceedings, Mr Shillingford’s entitlement pursuant to s 8(10)(b)(i) would, again, be nil.
CONCLUSION
The reviewable decision dated 8 November 2017 is affirmed.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO.

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Associate
Dated: 26 November 2019

Date(s) of hearing:  28 August 2019

Date final submissions received:            9 October 2019

Counsel for Mr Webb:  M Carey

Solicitors for Mr Webb:  Slater & Gordon Lawyers

Counsel for Comcare :  P Bindon

Solicitors for Comcare:  McInnes Wilson Lawyers