Sullivan and TNT Australia Pty Ltd (Compensation)

This matter came before J F Toohey SM concerning a dispute over the calculation of Normal Weekly Earnings (NWE) for Mr. Sullivan, an employee of TNT Australia Pty Ltd. The core of the dispute involved determining the correct hourly rate of pay to be used in the NWE calculation, with Mr. Sullivan arguing for a higher rate based on historical practice and contract carrier arrangements, while TNT Australia contended for a rate derived from the relevant Industrial Agreement and Award.

The legal issues before the Tribunal were whether Mr. Sullivan's NWE should be calculated using the hourly rate stipulated in the Industrial Agreement and the Transport Industry Award, or a higher rate that had historically been paid to contract carriers. Additionally, the Tribunal had to determine whether a vehicle expenses component of Mr. Sullivan's pay should be included in the NWE calculation.

The Tribunal reasoned that, pursuant to subsection 8(1) of the SRC Act, the NWE must be determined by reference to the terms and conditions of employment as set out in the Industrial Agreement, which mandated the use of the Award rate. Despite evidence of historical payments at higher rates to contract carriers, the Tribunal found it had no discretion to apply a rate other than that specified in the Agreement and Award. Furthermore, the Tribunal held that the vehicle expenses component of Mr. Sullivan's pay was a reimbursement for special expenses incurred in respect of his employment and was therefore excluded from the NWE calculation under subsection 8(1).

The Tribunal varied the reviewable decision, finding that Mr. Sullivan's correct NWE, calculated by reference to the Award rate and excluding vehicle expenses, was $1339.30.