Uijland and Comcare (Compensation)

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.