Uijland and Comcare (Compensation) - [2019] AATA 19

Uijland and Comcare (Compensation) [2019] AATA 19 (14 January 2019)
Division:GENERAL DIVISION
File Number(s): 2018/4006
Re:Stefanus Petrus Uijland
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries
Date:14 January 2019
Place:Canberra

The Tribunal remits the decision under review to Comcare, in order that Mr Uijland’s NWE be calculated under s 8(5) on the basis that:
NH = 36
A = 0

........................................................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – normal weekly earnings (NWE) – whether public holiday penalty rate should be included in the calculation of NWE – whether public holiday penalty rate is included in the definition of “A” in s 8(1) of the Safety, Rehabilitation and Compensation Act 1988 – public holiday penalty rate falls outside the meaning of “A” – decision remitted.
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 7, 8, 14
Cases
Comcare v Nicholas (2014) 225 FCR 369
Re Maley and Comcare (1998) 27 AAR 100
Re Ragg and MRCC [2009] AATA 371
Re Whitton and Department of Defence [1998] AATA 628
Sutton and Comcare (AAT, No 10935, 16 May 1996, unreported)
Zarb and Comcare [1997] AATA 254
REASONS FOR DECISION
Deputy President Gary Humphries
14 January 2019
INTRODUCTION

This decision concerns the question of whether a public holiday penalty rate should be included in the calculation of the normal weekly earnings of an injured worker under the Safety, Rehabilitation and Compensation Act 1988 (the Act).
Stefanus Petrus Uijland has an accepted claim under s 14 of the Act for an aggravation of lumbar spondylosis.[1]
[1] In this decision, italicised text is generally used to indicate direct quotations.
Comcare issued a Determination dated 6 June 2018 in which it decided, pursuant to s 8 of the Act, that Mr Uijland’s normal weekly earnings (NWE) were $3,654.08. Mr Uijland sought reconsideration of this determination on 13 June 2018. Comcare subsequently issued a reviewable decision dated 11 July 2018 in which it varied the determination, deciding instead that Mr Uijland’s NWE were $3,582.42.
Mr Uijland appealed to the Tribunal for merits review of this decision on 18 July 2018.
THE LEGISLATION
Section 8(1) of the Act sets out the formula for the calculation of an injured worker’s NWE. The subsection provides:
(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

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 Uijland and Comcare (Compensation)

Details

AGLC: Uijland and Comcare (Compensation) [2019] AATA 19
Case: [2019] AATA 19
Decision Date: 14 January 2019

CaseChat Overview and Summary

This matter concerned an appeal by Mr Uijland against a decision by Comcare regarding the calculation of his normal weekly earnings (NWE) for the purposes of workers' compensation. The dispute centred on whether a public holiday penalty rate should be included in the calculation of Mr Uijland's NWE under section 8 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The decision was heard by Deputy President Gary Humphries P.

The primary legal issue before the Tribunal was whether a public holiday penalty rate constituted an "allowance" within the meaning of "A" in the formula for calculating NWE under section 8(1) of the Act. Comcare argued that such penalty rates were not included in "A", or alternatively, that Mr Uijland was not entitled to the rate as he did not work on the public holiday in question. Mr Uijland contended that the legislation intended for injured workers to receive the wages and entitlements they would have received had they not been injured, including public holiday penalty rates.

The Tribunal considered the definition of "A" in section 8(1), which refers to the average amount of any allowance payable to the employee in each week in respect of his or her employment, excluding allowances for special expenses. Drawing on previous Tribunal decisions, the Tribunal noted that allowances generally included those paid for conditions encountered during service or special qualifications, but not those for monies expended by the employee. The Tribunal concluded that to be entitled to a public holiday penalty rate, a worker must have actually worked, or been available to work, on the public holiday. As Mr Uijland was stood down and did not work on the public holiday, he was not entitled to the penalty rate in accordance with his enterprise agreement.

Consequently, the Tribunal remitted the decision to Comcare for recalculation of Mr Uijland's NWE under section 8(5) of the Act, based on a 36-hour week, as the previously calculated figure did not fairly represent his weekly rate of pay. The Tribunal found that while the broad policy of the Act is to compensate injured workers for lost wages, the specific mechanics of the legislation, including preconditions for entitlement, must be applied.

Orders

Orders of the court

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Background

Background to the litigation

Section 9(1) deals with the definition of relevant period in subsection (1). It provides:(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.RELEVANT FACTS From August 2001 Mr Uijland was employed as an air traffic controller by Airservices Australia, the government organisation charged with responsibility for Australia’s airspace management. Based in Albury NSW, his duties included the safe and expeditious control, sequencing and monitoring of air traffic arriving and/or departing from airports. Mr Uijland experienced a lengthy absence from work from April 2017 for a non-compensable condition (a frozen shoulder, the Tribunal was told). In the second half of 2017 he was engaging in a process of rehabilitation for a return to work. As a consequence, in the two-week period before 6 October 2017 his licence to work as an air traffic controller was not current, and he was required to do what he called famil, or familiarity training. During this training he worked under the provisions of another air traffic controller’s licence. Mr Uijland’s deemed date of injury for his accepted condition (for the purposes of s 7(4) of the Act) is 6 October 2017, though he maintained that the injury actually occurred on 18 September 2017. As will become apparent, nothing turns on which of these dates is selected as the date of injury. The latest period of two weeks, before the accepted date of injury (6 October), during which Mr Uijland was continuously employed by the Commonwealth was the period from 21 September 2017 to 5 October 2017. During that two-week period, he took sick leave for his non-compensable condition, was rostered off but nonetheless also attended work for the purposes of familiarity training. He told the Tribunal that he was stood down from work on the public holiday on 2 October 2017 because of his employer’s requirement that, to work on a public holiday, he would have had to have a current licence. The number of hours actually worked by Mr Uijland during this two-week period was 13 hours. Applying the formula in s 8, Mr Uijland’s NWE would, on that basis, be $646.82. Comcare accepted, however, that this figure does not fairly represent the weekly rate at which Mr Uijland was being paid before his injury. Subsection 8(5) confers a discretion on Comcare to apply a different calculation of NWE where, because of the shortness of the relevant period, the general provisions of the section would not fairly represent the weekly rate at which the employee was being paid before the injury. Comcare employed this discretion to arrive at its reviewable decision of 11 July 2018, whereby Mr Uijland‘s NWE was calculated to be $3,582.42. This calculation was based on a 72 hour fortnight, not the 13 hour fortnight which Mr Uijland actually worked in that period.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am of the opinion that Mr Uijland’s NWE should be calculated by reference to a period in which he worked a 36-hour week. There is no evidence before the Tribunal which will allow it to nominate a particular period in which this outcome, fairly representing his weekly rate of pay, would be achieved. Accordingly, the matter is remitted to Comcare for that calculation to be made pursuant to s 8(5).CONCLUSION Mr Uijland’s case to the Tribunal was a straightforward one: he argued that the intent of the legislation is that an injured worker should receive, during his incapacity, the wages and entitlements he would have received had he not been injured. Mr Uijland maintained that common sense should therefore provide that he receive the holiday penalty rate that he would, most probably, have received had he not been injured and thus deprived of his right to work under his own air traffic controller’s licence. The interpretation Mr Uijland suggests might well win the approval and support of the man on the Clapham omnibus (to quote a famous legal fiction inherited from the English common law). His formulation does broadly describe the overall goal of the Act with respect to the wages of injured workers, it must be conceded, but it does not capture the specific mechanics whereby the Act approaches that goal. As Comcare submitted to the Tribunal, the Act codifies the provisions entitling an injured worker to compensation for loss of wages, and the Tribunal must look to those provisions to discover what the entitlements are. Those provisions are detailed and formulaic, ensuring consistency of outcomes by all who rely upon them and reducing to black-and-white those areas of grey which a broadly stated policy will always suffer from. It is the mechanics – the specific terms of the provisions granting and delineating entitlements – to which the Tribunal must turn at first instance, not the broad policy objective. In this case, the specific terms are passably clear; a worker must actually work, or be available to work, on a public holiday to receive the public holiday penalty rate in his wages. The fact of compensable injury preventing him from doing so does not obviate the clear terms of the specific provisions in the Act imposing this precondition of entitlement. The Tribunal remits the decision under review to Comcare, in order that Mr Uijland’s NWE be calculated under s 8(5) on the basis that:NH = 36A = 0

Ratio Decidendi

Legal Principle Established

Comcare contended that a public holiday penalty rate is not an allowance of the kind which is included in the factor A in the formula in subsection (1) of s 8. Alternatively, it argued that, if A does include a public holiday penalty rate, Mr Uijland is not entitled to that penalty rate because he was stood down on the 2 October public holiday and did not actually work on that day. Mr Uijland was not entitled to any public holiday penalty rates in accordance with clause 19.26 of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Enterprise Agreement 2017-2020 in those circumstances.CONSIDERATION In determining the question of whether a public holiday penalty rate should be included in the calculation of Mr Uijland’s NWE, the Tribunal must first address the question of whether a holiday penalty rate is captured by the factor A in the formula used in under s 8(1). I quote again the subsection’s definition of A:"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. The definition divides allowances payable to an employee into two classes: allowances payable … in respect of his or her employment and allowances payable in respect of special expenses incurred, or likely to be incurred… in respect of that employment. The former class falls within NWE, the latter does not. Put another way, an employee is entitled to have included in the calculation of his or her NWE allowances paid in respect of employment unless those allowances are payable in respect of special expenses, actually incurred or likely to be incurred, by the employee. Special expenses is not defined in the Act. The term has, however, received some attention in decisions of the Tribunal. In Zarb and Comcare [1997] AATA 254 the Tribunal considered whether penalty rates constituted an allowance which should be included within NWE under s 8. Deputy President Burns observed at [51]-[54]:51. Counsel for the respondent advised the Tribunal that, although it was a matter of practice that the respondent pay its claimants penalty rates under the category of "A" (being allowances) in s.8(1), it was not a "cut and dried" issue. There is no definition of what constitutes an allowance although s.8(1) does exclude an "allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of the employment". In Sutton and Comcare (AAT No 10935, 16 May 1996) the Tribunal considered whether an accommodation allowance was an eligible allowance or a "special allowance". In reaching the conclusion that an accommodation allowance was a special allowance, the Tribunal was assisted by a copy of the "Legislation Information Papers Volume 3" (an internal document of Comcare) which contained the following explanation of "earnings" under s.8(1):Allowances to be included would generally be those payable for such things as conditions encountered during service, special qualifications, special duties and so on. Any allowance for monies expended (or likely to be spent) by the employee will not be earnings as such i.e. these are not monies "obtained as a reward for work or merit" (OED definition of earnings).The following are examples of the types of allowances which can be included in calculating NWE. The lists are not exhaustive but as a guideline, allowances that are taxable or continue to be paid during leave would be included: