Susan Willis and Comcare - [2014] AATA 603

[2014] AATA 603

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/4346

Re

Susan Willis

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member Bernard J McCabe

Date 27 August 2014

Place Brisbane
The decision under review is affirmed.
........................................................................
Senior Member Bernard J McCabe
CATCHWORDS
COMPENSATION – Dispute concerning calculation of Normal Weekly Earnings – Respondent accepts liability for applicant’s injury – Applicant continues to work reduced hours – Respondent pays difference of current earnings and previous Normal Weekly Earnings – Effect of Higher Duties Allowance and Work Location Allowance on calculation – Reviewable decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 8(1); 8(6); 8(7); 8(9); 8(9A)
CASES
ASP Ship Management Pty Ltd v Wood (2007) 161 FCR 429
McDonald v Department of Defence [1999] FCA 882
REASONS FOR DECISION
Senior Member Bernard J McCabe

Susan Willis works for the Australian Customs and Border Protection Service (“Customs”). She was injured at work in 2009 and was incapacitated for a time. Comcare accepted it was liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Ms Willis commenced a graduated return-to-work program and was working 24 hours a week by 2011. That was less than her ordinary full-time load so Comcare “topped up” her pay under s 19 of the Act so it matched her pre-injury rate of pay, or her Normal Weekly Earnings (“NWE”), as calculated pursuant to s 8 of the Act. A dispute has arisen as to how the NWE should be calculated.
Ms Willis says the calculation of her NWE should be adjusted to reflect a Higher Duties Allowance and a Work Location Allowance (“location allowance”). Both allowances are provided for in the relevant enterprise agreement. Both allowances were paid to the applicant after she transferred to Brisbane in 2011.
The respondent disagrees. It says the amount it pays to the applicant pursuant to s 19 of the Act should actually go down when she is in receipt of these allowances because the difference should narrow between what she has actually earned and the amount of the NWE which was fixed without reference to those payments. The parties have asked the Tribunal to resolve the issue.
THE TWO ALLOWANCES
I shall begin by explaining the nature of the two allowances in questions here. The first is the higher duties allowance.
I was provided with a statement from Mr John Michael Drake, a Customs manager, who explained the hierarchy of positions within the Customs organisation (exhibit 5). He said there was a director and a number of senior managers in the area in which the applicant worked, and three levels of Customs officers. Ms Willis was a level one officer. The level two officers were more senior and did more complex work – and they were paid more. The level three officers were still more senior. Mr Drake said it was common for more junior officers to fill in for their senior colleagues when the need arose. He explained at paragraph…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Susan Willis and Comcare

Details

AGLC: Susan Willis and Comcare [2014] AATA 603
Case: [2014] AATA 603
Decision Date

CaseChat Overview and Summary

Susan Willis has brought a case against Comcare, the Commonwealth's administrative appeals tribunal, regarding the calculation of her non-wage entitlements (NWE). The dispute arose from Comcare's decision to exclude certain allowances from the calculation of Willis's NWE. Willis argued that these allowances should have been included, leading to a higher entitlement. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue the court needed to decide was whether certain allowances, specifically the higher duties allowance and the work location allowance, should be included in the calculation of Willis's NWE. The court needed to interpret the relevant Enterprise Agreements and determine the appropriate interpretation of the terms in question. The court was also required to consider Comcare's practice of excluding these allowances and whether such practice was consistent with the applicable agreements and policies.

The court found that the higher duties allowance should indeed be included in the calculation of NWE because it was paid at a different rate than ordinary duties and was reflective of an exceptional circumstance. The court concluded that the allowance was part of the employee's ordinary wages for the purposes of calculating NWE. Regarding the work location allowance, the court noted that it was available as a matter of course to all Customs officers working in specified locations and therefore should be included in the calculation of NWE. The court held that Comcare's decision to exclude these allowances was incorrect and should be affirmed only in relation to the higher duties allowance. The court declined to vary the decision regarding the work location allowance, as it found no grounds to change Comcare's previous practice.

The final orders of the court were to affirm Comcare's decision in relation to the higher duties allowance and to direct Comcare to include this allowance in the calculation of Willis's NWE. The court did not vary the decision regarding the work location allowance, allowing Comcare to continue its previous practice of including this allowance in the NWE calculation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I do not think the same argument is available in relation to the higher duties allowance. When she is assigned to higher duties, the applicant is being paid at a different rate to her colleagues. Indeed, the Enterprise Agreements make it clear she is being paid at the same rate as employees in the higher classification. Being assigned higher duties is in that sense exceptional, in contrast to being paid a location allowance which is available as a matter of course to every Customs officer who happens to work in specified locations. CONCLUSION Comcare’s decision in relation to the Higher Duties allowance must be affirmed for the reasons I have explained. I note the reviewable decision dated 6 August 2013 does not refer to the work location allowance: I understand Comcare was, at an earlier stage, taking account of the location allowance in its calculation of NWE but now seeks to end that practice. It has asked for me to vary the decision to that effect, but – for reasons I have explained above – I decline to do so. It should continue the practice it previously followed in this regard.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4346
Re	Susan Willis
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member Bernard J McCabe
Date	27 August 2014
Place	Brisbane