Shillingford and Comcare (Compensation)

This matter concerned an appeal by Mr Shillingford against a decision by Comcare regarding his entitlement to incapacity payments under the relevant Act. Mr Shillingford, a 64-year-old former butcher and meat inspector, sustained a compensable injury on 23 February 2017 while working as a casual, non-ongoing APS employee for the Department. The injury resulted in him being incapacitated for work, and Comcare had determined his normal weekly earnings. The core dispute before the Administrative Appeals Tribunal (AAT) was the calculation of any entitlement Mr Shillingford might have under sections 19(2) and 8(10) of the Act, particularly in light of his employment status and the downturn in the meat inspection industry.

The legal issues before the Tribunal were whether Mr Shillingford was an employee of the Commonwealth on 11 September 2017, and if so, what his entitlement to incapacity payments would be under section 8(10) of the Act. This involved determining the nature of his engagement with the Department, particularly given his casual and non-ongoing employment status, and considering the impact of industry-wide closures on his potential for future employment. The Tribunal also had to consider Mr Shillingford's argument that his engagement, even if accepted, did not constitute a contract of employment in substance.

The Tribunal reasoned that Mr Shillingford was indeed an employee of the Commonwealth on 11 September 2017, based on offers of engagement made under section 22(2)(c) of the Public Service Act 1999. These offers clearly stipulated that the employment was for irregular or intermittent duties, with no obligation to offer work or for Mr Shillingford to accept it, and no expectation of regular or ongoing employment. Despite Mr Shillingford's injury and the subsequent closure of abattoirs in his region, which meant no work would have been offered to him even if he had been fit, the Tribunal found that his entitlement to incapacity payments under section 8(10)(a) would be nil. This was because the calculation under that section, when applied to his circumstances, resulted in a nil entitlement.

The Tribunal affirmed the reviewable decision dated 8 November 2017.