Tapper and Transpacific Industries Pty Ltd
[2012] AATA 870
•11 December 2012
[2012] AATA 870
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0542
Re
STEPHEN TAPPER
APPLICANT
And
TRANSPACIFIC INDUSTRIES PTY LTD
RESPONDENT
DECISION
Tribunal The Hon R D Nicholson, Deputy President
Date 11 December 2012 Place Perth The Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant is entitled to compensation assessed on the basis that his entire period of service with the respondent yielded a figure of 38.45 hours per week.
...(sgd) R D Nicholson...........................
The Hon R D Nicholson, Deputy President
CATCHWORDS
COMPENSATION – calculation of incapacity payments – whether employee's earnings in the two weeks prior to the injury 'fairly represent' his earnings – whether either of the respondent's proposals of a fair period more appropriate – eligibility of applicant for allowances
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Ragg and Military Rehabilitation and Compensation Commission [2012] AATA 18
SECONDARY MATERIALS
Transpacific Industrial Solutions (Alcoa Alumina Contract) Collective Agreement 2008
REASONS FOR DECISION
The Hon R D Nicholson, Deputy President
The applicant seeks review of a decision made on 19 December 2011 by CGU Self Insurance Services. The decision was that in accordance with the provisions of s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) the determinations dated 3, 9 and 16 November 2011 were affirmed.
FACTS
The circumstances in which this decision was made are as follows. The applicant was born on 3 June 1980. He is employed by the respondent. He works as a casual Vacuum Operator in its Shutdown Business Unit at Wagerup and has done so since 8 June 2010.
On 14 September 2011, the applicant lodged a workers’ compensation claim under the SRC Act in respect of ‘trauma to right ankle.’ This was the result of an accident at the Pinjarra Alcoa Site on 6 August 2011 when he rolled his ankle on a hose after stepping down from a ladder onto a platform area.
On 24 October 2011, a determination was made accepting liability for ‘sprained right ankle’ under s 14 of the SRC Act. Compensation benefits have been paid for medical expenses and incapacity for work as a result of the injury pursuant to ss 16 and 19 of the SRC Act. To that end determinations issued on 3, 9 and 16 November 2011 set out incapacity benefits paid to the applicant. Those determinations detail the periods of incapacity based on the calculations of entitlements under s 8 of the SRC Act. In summary, the determinations note that the applicant’s Normal Weekly Earnings (‘NWE’) had been calculated as $1657.53, worked out from pay sheets for the period of 12 weeks prior to his date of injury (approximately 15 May 2011).
In his application for review the applicant stated as the reasons for his application: “unpaid travel and meal allowance; missing potential earnings; being paid dayshift rate, when I’m a nightshift worker which is stated in EBA as Double time rates.”
At the commencement of the hearing the applicant agreed that he sought review in respect of the following issues: (1) the amount of compensation taking into account the dates from which his NWE should be assessed; the non-inclusion of his time away for holidays and sick leave; the relevance of comparable data from employees not calculated over the same period as applied to him; (2) his eligibility for allowances for travel and meals and the applicability of the Leading Hand allowance and Confined Space allowance.
APPLICABLE LAW
Section 19 of the SRC Act relevantly provides as follows:
“ 19Compensation for injuries resulting in incapacity
…
(2) 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.
…”
As to the meaning of “normal weekly earnings”, sub-s 8(1) of the SRC Act provides[1]:
[1] Section 4 also provides that “normal weekly earnings means the normal weekly earnings of an employee calculated under s 8”.
“ 8 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.
…”
Section 4 of the SRC Act also provides that:
“ normal weekly hours, in relation to an employee, means the average number of hours (including hours of overtime) worked in each week by the employee in his or her employment during the relevant period as calculated for the purpose of applying the formula in subsection 8(1) or (2).”
In addition s 4 provides that the “relevant period” is the period calculated under s 9 and s 9 relevantly provides:
“ 9 Relevant period
(1) For the purposes of calculating the normal weekly earnings of an employee before an injury, a reference in section 8 to the relevant period is, subject to this section, a reference to the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the Commonwealth or a licensed corporation.
…
(4) If, during any part of the period calculated under the preceding subsections, the employee’s earnings were reduced, or the employee did not receive any earnings, because of absence from his or her employment for any reason, that part of that period shall be disregarded for the purposes of calculating the relevant period.”
However, sub-s 8(5) also provides that, in determining an employee’s NWE before an injury, regard may be had to a period longer than two weeks in certain circumstances. It states as follows:
“(5) Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.”
APPLICANT’S EVIDENCE
In his evidence the applicant confirmed the contents of his statement of facts, issues and contentions.
In that statement he said:
“ Transpacific Industries and myself as a high ranked operator were working hard to gain a large contract with the alumina giant ALCOA Australia. Transpacific Industries Pty Ltd won the contract and took over for the descale dept. in July 2011 which created an abundance of work. As shown in my payslips my gross earnings per week are higher than $1,657.53.”
He also referred to the following calculation:
“ Payweek ending 06-07-2011 $2,178.37 (40hrs)
Payweek ending 13-07-2011 Away on holidays
Payweek ending 20-07-11 $3,041.88 (53.2hrs)
Payweek ending 27-07-2011 Sick at home
Payweek ending 03-08-2011 $2,978.39 (59hrs)
Payweek ending 10-08-2011 $2,178.13 I was injured on 06-08-2011.
(My pay would have been higher in this week if not for injury) (42.5hrs)”
The applicant calculated … by using payweeks over a 4 week period.
“ 20-07-2011 53.2 hrs
27-07-2011 18.5 hrs (including the week I was sick)
03-08-2011 59.0 hrs
10-08-2011 42.5.hrs (including the week I was injured)
Total hours 173.2 hrs
Averaged 43.3 hrs”
The applicant testified in cross-examination that as a casual employee he did not have the same work period every week. He had done day-time work to assist his employer to prepare for an additional new contract. The new contract had begun on 1 July 2011.
He further testified that when he was employed the Shutdown Manager Mr Norman Gomm had told him that he would get full time hours comprising 48 hours made up of 4 shifts of 12 hours each.
RESPONDENT’S EVIDENCE
The respondent called Mr Gomm. He testified that casual employees did not have any set roster. They could have 30-50 hours per week of 3-4 shifts per week. There was no regularity in their hours.
Mr Gomm accepted that the applicant’s earnings would have increased on commencement of the new contract on 1 July 2011 but in his view they would have gone back to past levels after a couple of months.
Mr Gomm had no recollection of the conversation with the applicant referred to in the applicant’s testimony. He said that he could not promise any number of hours. In the light of this testimony it is not open to the Tribunal to find that the applicant was guaranteed any hours by the respondent.
EVIDENCE OF PAYMENTS
Admitted into evidence were three exhibits setting out the applicant’s earnings and receipts throughout the period of his employment. These were not in dispute and I therefore find as a fact that they accurately set out such earnings and payments.
RELEVANT PERIOD
Neither the applicant nor the respondent have relied upon the period of two weeks as the relevant period for the purpose of the application of s 8. In my opinion this is correct in that the use of such a period ‘would not fairly represent the weekly rate at which the employee was being paid in respect of his…employment before the injury’: SRC Act, s 8(5).
It is therefore necessary for the Tribunal to form its opinion as to what should be the other period which it considers to be reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid: SRC Act, s 8(5).
It is relevant to note that the SRC Act looks back from the date of injury to the relevant period. While it was the case that the applicant worked in anticipation of receiving increased earnings as a night-shift worker after the new contract commenced, it is his past record of earnings from the date of his injury which is relevant, not the earnings which he may have anticipated in the future.
The respondent pointed to two possible alternative periods. One was based on the entire record of the applicant from commencement of his employment which yielded the figure of 38.45 hours per week. Additionally, after deleting the weeks when the applicant was on holiday and was sick (27/7 and 13/7) the figure becomes 38.32. These figures compare to 35.09 being the figure used in all the prior determinations.
I do not agree with the applicant’s submission that a period of four weeks would be a reasonable period. In my view such a period needs to be extended beyond that duration.
At the direction of the Tribunal, the respondent calculated the applicant’s entitlements from 4 January 2011. This yielded a figure of 36.47 for normal weekly hours.
None of the evidence supports the view that the applicant’s calculation of 43.3 hours for a 4 week period is reasonable in the circumstances. The choice of that period yields a figure of hours significantly ahead of that yielded by the other evidence
I consider that extension back to the commencement of the applicant’s employment yields a period which is reasonable in the circumstances in that it gives a complete picture based on the entirety of the applicant’s work and yields a figure of 38.45 hours per week.
ALLOWANCES
The meal allowance is described in clause S4 of the Transpacific Industrial Solutions (Alcoa Alumina Contract) Collective Agreement 2008 as payable where an employee has worked in excess of ten hours. Clause S6 describes the travel allowance as applicable where an employee utilises their personal vehicle to travel to and from site. Oral evidence made apparent that provided the employee travels to work, there is no inquiry as to how that was done and whether it involved any pooling of vehicles of more than one employee.
In Ragg and Military Rehabilitation and Compensation Commission [2012] AATA 18 various authorities on allowances were considered. It was accepted that where the allowance is payable as compensation for money expended to meet the aspects of hardship arising from their work, it will be a ‘special expense.’ Where an allowance is paid as a reward for work or merit it will not be an expense of that character. Accepting the reasoning there applied it is apparent that both the meal and travel allowance are allowances paid in connection with work and are special expenses and so have been properly excluded.
The Leading Hand allowance has been included in the calculation of the applicant’s NWE where he had been paid it from time to time. That is, when the applicant fulfilled the role of Leading Hand although not employed as such, he was paid the allowance.
The Confined Space allowance is not paid by the respondent to its employees.
CONCLUSION
For these reasons I consider the application for review should be granted, the decision under review should be set aside and there should be substituted a decision that the applicant be entitled to compensation assessed on the basis that his entire period of service with the respondent yielded a figure of 38.45 hours per week.
I certify that the preceding 32 (thirty nine) paragraphs are a true copy of the reasons for the decision herein of The Hon R D Nicholson, Deputy President.
...(sgd) T Freeman......................
Administrative Assistant
Dated 11 December 2012
Date of hearing 12 November 2012 Applicant In person Counsel for the Respondent Brett Ablong Solicitors for the Respondent HBA Legal
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