Warnock and Comcare
[2008] AATA 567
•2 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 567
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0945
GENERAL ADMINISTRATIVE DIVISION ) Re SHAUN WARNOCK Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr K S Levy, RFD, Senior Member Date2 July 2008
PlaceBrisbane
Decision The Tribunal determines that:
(1) The decision under review is set aside;
(2) The calculation of NWE is not within the bounds of the reviewable decision.
(3) The adjustment percentage is 100% of NWE.
(4) The AE for 2007 is $778 per week for farming and $100 per week for bus driving in weeks where that employment is available.
(5) The Tribunal remits the matter to the respondent for recalculation of the entitlement, taking account of s8 of the Safety Rehabilitation and Compensation Act 1988 (indexation) and any other statutory or relevant factor.
...............[Sgd].........................
Senior Member
CATCHWORDS
COMPENSATION – Administration of the Act – normal weekly earnings – whether the claim for the amount of overtime as part of the applicant’s normal weekly earnings is to be included in the consideration of the decision under review – whether a previous determination, in relation to the elements of the formula under s19 (3) of the Safety Rehabilitation and Compensation Act 1988, is correct – decision under review set aside.
Safety Rehabilitation and Compensation Act 1988 ss 4(1),5,8,9,14(1),19(2),19(3)(a),19(3)(f)
Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2007 ss 4(1), 8(9E), 8(9F).
Bortolazzo & Saffron v Comcare (1997) 25 AAR 290
Re Spurr and Comcare (1999) 28 AAR 424
Comcare v Davies [2008] FCA 393
Woodbridge v Comcare (1994) 20 AAR 196
J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625
Cage Developments Pty Ltd v Schubert (1983) 151 CLR 584
REASONS FOR DECISION
2 July 2008 Dr K S Levy, RFD, Senior Member INTRODUCTION
1. The applicant, Shaun Warnock, applied for compensation as a former Commonwealth Government employee. That claim was rejected on 5 June 2006 when the decision maker determined that he was not eligible because of an exclusionary provision. On review, that decision was set aside and liability was payable by Comcare under s14 of the Safety Rehabilitation and Compensation Act 1988 (‘the Act’). It was determined that the exclusionary provision was not applicable in that case as the issue upon which it depended had not commenced at the date of the applicant’s injury (Comcare v Chenhall (1992) 37 FCR 75). That decision was made on 8 August 2006.
2. A determination was then made on 18 October 2007 under s19 (3)(a) of the Act and determined that Mr Warnock was entitled to 75% of Normal Weekly Earnings (NWE) in determination of the formula applicable in ascertaining the compensation for his case. On 8 November 2007, Senior Member Carstairs awarded a stay in the implementation of a decision dated 3 September 2007.
3. There was also a determination dated 5 December 2006 in relation to the amount of NWE which should be applicable from 1 June 2006 pursuant to s8 (10) of the Act. The applicant appealed against that decision on 12 October 2007, but despite being outside the statutory time limit for reconsideration, an extension of time for reconsideration was granted. The decision was reviewed and concluded that the amount of overtime to be included in the calculation of NWE was reduced. The review of that decision was provided to the applicant in a letter dated 14 December 2007. He appealed that decision also. Determination of that appeal was advised to Mr Warnock on 27 February 2008. That is the decision appealed against in the present application.
4. In addition, prior to the hearing, Mr Warnock claimed that instructions he had given to his former solicitors had not been carried out, which were to include the calculation of NWE as part of the review of this decision. The respondent opposes that aspect being included in the present application on the basis that it is not within the grounds covered by the reviewable decision. The applicant provided certain documents under summons which were issued to the Australian Federal Police (AFP), the applicant’s former employer and which were of relevance to this supplementary issue. In the preliminary stages of the hearing, I determined to consider the legitimacy of that claim in light of all of the evidence presented. If I acceded to the applicant’s request to include a review of overtime within the present application, I indicated that the respondent and the applicant would get an opportunity to make further submissions in relation to that before I made a final determination.
5. I note a previous application for review of a decision of 3 September 2007 in relation to the applicant’s rehabilitation program has now been settled by agreement and is in the process of being finalised.
6. In view of the lengthy history of this matter, I emphasise that the present hearing is to review the decision of 27 February 2008. That decision revoked the earlier determination dated 18 October 2007. Under s19 (3)(f) of the Act, the decision maker determined that the applicant was entitled to 100% of his NWE in view of the fact that he was employed for more than 100% of his (former) normal weekly hours. It was further determined that he was able to earn an amount in “suitable employment” as a farm manager and was also undertaking the duties of a bus driver during school terms. The amount that he was capable of earning was set at $1,290.40. The amount of compensation payable under s19 (3) of the Act was therefore calculated as being $679.02 per week.
ISSUES
7. The Tribunal must determine the following questions:
(1)Whether the amount of normal weekly earnings (NWE) in the formula in section 19 (3) of the Act is to be included in the consideration of the decision under review? and
(2)Whether the determination of 27 February 2008, in relation to the elements of the formula under s19 (3) of the Act, are correct?
BACKGROUND
8. Mr Warnock was raised on a farm in rural New South Wales. After a brief period of training towards the priesthood, he was involved in youth welfare work for a period of time. At approximately age 30, in 1991, he joined the Australian Federal Police. The evidence shows that he enjoyed his work and was enthusiastic with good communication skills. His career appears to have been relatively successful and he was promoted to the rank of Sergeant in 1999. Since that time, he was employed in the Police Support Area which involved attending traumatic scenes involving police officers. It appears he offered support not only to police but also to some others who were involved in these incidents. He subsequently served for a period of time in New Guinea over a two year period. He was disappointed when the AFP contingent in New Guinea was ceased for political reasons.
9. He subsequently worked in administrative roles and then in the Burglary Task Force. His involvement and empathy for some young offenders, appears to have brought him into conflict with his superiors.
10. The medical evidence also indicates that he had been a heavy drinker for a period of time prior to this. Following his conflict with senior police, his suffered with a mood disorder and went on stress leave in November 2005.
11. He remained on leave for about 11 months and saw various psychiatrists during that time, both a treating psychiatrist as well as other psychiatrists to provide official reports so that as a Commonwealth employee, his capacity for work and eligibility for compensation could be objectively assessed. By the end of that period, he had, it appears, decided to seek an alternative career and he sought to acquire a Macadamia farm. He and his treating psychiatrist both agree that this was useful in enhancing his ability to rehabilitate from his medical condition.
12. In this period he also sought advice from his accountant and consideration was given to also operating a newsagency. However, in consultation with his medical advisors, it was thought that his frustration levels might not adapt well to a newsagency. Consequently, the possibility of pursuing a Macadamia farm was seen to be the best decision in the interests of himself and his family.
13. Mr Warnock had seen Dr Eryl Evans, Psychologist, since 2002. He continued to see him also during the course of his period of stress leave. It was determined that to return to police work was not in his best interests. There was some disagreement with the AFP about the return to work schedule or rehabilitation program which he should follow. About the time of his resignation from the AFP, he had inspected a number of farms in the Lismore area and after discussion with banks, signed a lease for three years with an option to purchase at the end of that period. He and his wife then moved to Lismore. His wife also obtained employment there.
14. In cross-examination, he was asked whether he considered the AFP and Comcare should support him in setting up his own business. Mr Warnock said he believed he was entitled to payment for loss of income but he did not expect that his former employer or Comcare would have to buy him a farm. There was questioning of the applicant about the level of incapacity payments required to make the capital payments for purchase of the farm.
15. It was noted during cross-examination that incapacity payments were ceased for a period of time because of difficulty the applicant had in communicating with the AFP about a rehabilitation program. Those payments were ceased on 3 August 2007. An agreement was reached and the payments recommenced on 9 August 2007.
16. Mr Warnock saw medical practitioners as well as rehabilitation counsellors. He saw Ms Shears[1] and Mr Warnock said that his discussions with her were that he was not capable of undertaking other employment as he was employed full time on his farm. He agreed that he had a disagreeable attitude over that period, and at one stage he told the rehabilitation counsellor that he would get full time employment on a farm near his own. In evidence, he agreed that this was not a true statement. A week after making the statement to the rehabilitation counsellor, he then sent an email stating that the position he referred to was no longer available. It was put to Mr Warnock that he also made this claim because he would then get paid.
[1] T22, folio 58.
17. Considering the skill and suitable employment for Mr Warnock, he provided evidence that he has a licence to operate heavy machinery, with no restrictions. He has a licence to drive a bus, and has no restrictions. He also was advised by rehabilitation counsellors from Advanced Personnel Management that there were a number of different jobs that he could do, and Mr Warnock agreed that he was being obstructive at that time because it would conflict with the work he wished to do on his farm.
18. In relation to amounts he could earn on a farm, Mr Warnock said that the Horticultural Industry (State) Award of New South Wales was a useful indicator. He believed he met the requirements for Farm Manager Level 2. He pointed out that under the Award, the amount he could earn would be $566.66 per week. Mr Dube put to him that that was for a 38 hour week and that if he worked 60 hours on his farm then the balance of the time he worked could be valued at equivalent overtime rate. Mr Warnock acknowledged the argument but merely noted that he did not fully agree.
19. The respondent then made available for cross-examination, Ms Sonya Carder, a Rehabilitation Counsellor with Advanced Personnel Management. She is based at Parramatta in New South Wales and provided a report dated 4 June 2008. She gave evidence that she is a graduate of the University of Sydney, where she graduated with a Bachelor of Health Science in 1997.
20. She was cross-examined by Mr Warnock about the statistics contained in that report. It was stated during the course of the cross-examination that employment in Lismore is 9% based on statistics from the Australian Bureau of Statistics, and that was twice the National rate of unemployment (4.5%). Ms Carder said she could not answer questions about the detail of numbers of persons who might apply for particular jobs as her research did not cover that level of detail. She acknowledged that her report was prepared from Parramatta and that she did not travel to Lismore in the course of preparation of the report.
21. Ms Carder’s report also identifies a farmer as being an appropriate or “suitable employment” for Mr Warnock. He was capable of operating farm machinery but the report indicated that he needed skills in farm management and crop management. It was pointed out in evidence however that Mr Warnock has completed a TAFE course relevant for his present occupation. He also had work experience in the area. The report highlighted that such work usually requires a financial commitment in the form of a lease or purchase of land, a matter which Mr Warnock has satisfied.
22. She noted that Mr Warnock may not have the desire to expand his own farming business to the extent of involving the employment of staff, training and supervision.
23. At the conclusion of evidence, the Tribunal was informed that documents had been made available under summons issued by the Tribunal. That intimation related to the earnings and overtime of the applicant and other relevant officers since Mr Warnock’s cessation with the AFP. It was pointed out that there were some personal details of the other two serving police officers, and I made a Confidentiality Order over the records of those two persons under s35 (2) of the Administrative Appeals Tribunal Act 1975.
CONSIDERATION
24. I have considered all of the evidence presented in documentary form and orally. I have also taken account of the statutory and case law relevant to the issues.
issue one – Whether the amount of normal weekly earnings (NWE) in the formula in section 19 (3) of the Act is to be included in the consideration of the decision under review?
25. I have considered the material provided by the applicant and his oral and written submissions in relation to this question. I am satisfied that he had instructed his solicitors to include that in his application. While I can understand his feeling of disappointment that his instructions were not carried out, the decision under review does not strictly cover that question.
26. In considering this preliminary question posed by the applicant, I have examined how centrally relevant it is to answering the second issue which the Tribunal must decide, and which are all elements of the same formula. For this purpose, some observations on the relevant legislation are necessary. Part II of the Act deals with compensation. Section 14(1) provides that Comcare is liable to pay compensation where a Commonwealth employee is injured and which results in death, incapacity for work or impairment. Section 4(1) defines a number of terms, and relevant to the determination of this question are the terms “normal weekly hours” and “overtime”. Section 5(1) of the Act defines “employee” and section 5(2) specifically declares that an AFP employee shall be taken to be employed by the Commonwealth for the purposes of the Act (section 5(2)(a)).
27. Sections 8 and 9 of Part I of the Act deal with the meaning of “normal weekly earnings” for an employee and in particular, provide a formula for the calculation of those earnings. Section 8(2) provides a revised definition of normal weekly earnings which includes a component for overtime, where worked on a regular basis.
28. Those definitions refer to a “relevant period”. That term is amplified in section 9. Essentially, the relevant period for the present circumstances is “… a reference to the latest period of two weeks before the date of the injury during which the employee was continuously employed by the Commonwealth …”
29. It should be noted in context that there have been a number of amendments to s 8 since 2001. Sections 8 (9A), (9B), (9C) and (9D) were inserted as part of a new section 8(9) with an amendment act in 2001. The Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (‘the Amendment Act’) also implemented new provisions in sections 8 (9E), (9F) and (9G). These new provisions allow for the normal weekly earnings of an employee to be updated by reference to a prescribed index where they cannot be referenced to any other provision.
30. The Amendment Act also amended the definition of “suitable employment” in section 4(1) with the consequence that paragraph (a) applies only to employees who were permanent employees on the day on which they were injured and continue to be employed permanently by the Commonwealth or a licensed corporation. For any person who has ceased employment with the Commonwealth, “suitable employment” includes any kind of employment for which the employee is suited, not only employment with the Commonwealth or with a licensed corporation. This enlarges the employment options which can be taken into account in determining whether the amount of compensation payable may be reduced.
31. It is apparent from sections 8(1) to 8(9), that normal weekly earnings must be calculated as is appropriate to the case. Section 8(10)(b) then, in the present case, requires a theoretical comparison of the calculation of normal weekly earnings under sections 8 (1) to 8 (9) and the amount that the employee would have received had he continued to be employed by the Commonwealth in the employment in which he was engaged as at the date of the injury. Any excess over the amount which would otherwise have been earned would then be deducted from the normal weekly earnings.
32. Relevant to those calculations is the case of Bortolazzo & Saffron v Comcare[2] where the Federal Court held that “… an injured employee should not be worse off during the period of incapacity as a result of work-related injury. However, it follows conversely that the injured employee should not be better off.” Likewise, Re Spurr and Comcare[3] went on to note that s8(10)(b) required an assumption that the employee would have continued in the Commonwealth’s employment, and that the decision maker should “…then consider what circumstances resulting in the payment of allowances, overtime or the like would have existed from time to time. As this case well illustrates, making the additional assumption that an employee’s duties would have remained unchanged could have an absurd and obviously unintended result[4]”.
[2] (1997) 25 AAR 290 per Heerey J at 293.
[3] (1999) 28 AAR 424.
[4] Re Spurr and Comcare (1999) 28 AAR 424 at 428.
33. Consistently with those authorities, it would be absurd if a person was entitled to compensation greater than if he had remained employed by the Commonwealth (Bortolazzo). Equally, it would be an absurd construction if a person continued to have, for example, allowances applied which would not have applied (or not continue to have applied) had the person remained in employment with the Commonwealth. This is particularly so where a police officer may be posted for a period of time, and, as could be expected, the person then posted to another work group owing to the nature of government service. That is a different situation to where a person with specialist skills is involved in a very small group of employees and is posted for very long periods of time or permanently to a remote centre where allowances are paid because of the hardship involved and on a long term basis. Therefore, if the power in s8(10)(b) is not interpreted logically and flexibly, then there could be a result where two former employees in somewhat the same circumstances could be treated differentially.
34. That construction is relevant in considering documents produced to the Tribunal under summons (and therefore to the question of calculation of NWE). Those documents relate to earnings and overtime. For the reasons given in the previous paragraph, the power to amend the amount of overtime received because of changing circumstances is valid. I note from a post hearing supplementary submission, this appears to be accepted by Mr Warnock also. Looking specifically at whether overtime should be included in NWE, the material over which a confidentiality order was placed during the hearing of this matter, contains material relevant to the calculation of the applicant’s amount of overtime for the purposes of NWE. It is apparent that that material is quite specific to the requirements of section 8(2). Nevertheless, the material provided to the Tribunal is insufficient to fully determine the question of NWE. That is due in part, to the fact that allowances were paid to the applicant[5]. That latter aspect (allowances) is a further element of the formula in section 8(1) for determining NEW, of which no information is available to the Tribunal.
[5] Exhibit 5.
35. How does this inform the question of whether the Tribunal should consider the application to overcome the applicant’s former solicitors’ default in submitting the question of NWE for consideration with the present application? Mr Dube, Counsel for the respondent urged me that making such a determination was not within the original decision under review and therefore should not be determined. While there are authorities that this application might be considered, as a matter of practicality, there is insufficient material presented in evidence for a determination to be made by this Tribunal. As Mr Dube also submitted, it could be reviewed if a formal application was made to review the decision of 14 December 2007, although that decision is now out of time. There is substantial merit in those submissions. I have reviewed the scope of the decision under review, I agree with Mr Dube that it is not within the bounds of the reviewable decision. I therefore reject the submission that it should be reviewed within the present application.
36. While I make no further formal finding on this issue in light of the above reasoning, but in view of the length of time this matter has been pursued, I would nevertheless mention that it would be immensely helpful in the resolution of this dispute if the Respondent reviewed the multifactorial components of NWE.
issue 2 – Whether the determination of 27 February 2008, in relation to the elements of the formula under s19 (3) of the Act, are correct?
37. The reviewable decision dated 27 February 2008 determined that Mr Warnock could earn $61,901 per annum from 1 July 2007 which was the average for a farm manager as shown on the MyCareer website for the previous 90 days ie. from approximately December 2007 to the end of February 2008.
38. Section 19(3) of the Act states that Comcare is liable to pay compensation to an employee in respect of an injury (other than for a week referred to section 19(2)), of an amount calculated by the following formula:
(Adjustment percentage x NWE) – AE
39. I have already determined that NWE, as defined in section 8 cannot be determined by this Tribunal (but that it might be re-calculated by the respondent independently). The remaining terms in the formula, “adjustment percentage” and “AE”, are defined terms. “Adjustment percentage” is defined in section 19(3) where varying percentages would be applied in the circumstances specified. “AE” has the same meaning as in section 19(2) of the Act, which 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.”
Adjustment Percentage
40. In making a determination under section 19(3), regard is to be had to the factors listed in section 19(4). Paragraphs (a) to (f) of section 19(4) include amounts earned by an applicant and other factors relating to offers of employment and failure to accept an offer of employment. Section 19(4)(g) also provides for “any other matter” which is “relevant” to be considered.
41. Mr Dube referred me to Woodbridge v Comcare[6] where Hill J said that consideration of sections 19(4)(a) to (f) are not exclusive considerations and section 19(4)(g) may reveal other relevant or intervening circumstances. But some technical distinctions should be made. I was also referred to the decision of the High Court in J & H Timbers Pty Ltd v Nelson[7] which was cited in Comcare v Davies[8]. There, the High Court of Australia said “the earning capacity of a man as a worker is measured by the remuneration that is the fruit of his labour, his wages or their equivalent. It is not to be measured by the profits he derives by embarking his capital in a business or by his usual capital equipment in earning money”. The relevance of capital invested and return on capital was also referred to by the respondent and the decision of Cage Developments Pty Ltd v Schubert[9] is informative where the High Court held that it was correct to assess compensation “by considering what services the worker actually performed in the business and what those services would have been worth if, instead of serving himself, he had been serving an employer, or, put another way, what he would have had to pay another for those services”. That approach was confirmed in Comcare Australia v Leslie Bruce Woodbridge[10].
[6] (1994) 20 AAR 196 at 205-206 per Hill J.
[7] (1972) 126 CLR 625 per Windeyer J at 643.
[8] [2008] FCA 393.
[9] (1983) 151 CLR 584 at 586.
[10](1995) FCA DG 17 of 1995 (unreported).
42. In respect of the elements of the formula (other than NWE), Mr Warnock’s normal hours of work prior to injury were 40 hours per week. He had contended consistently that he now worked approximately 60 hours per week. Despite one issue which suggested that an aspect of his evidence might be questionable, his credit has not been seriously doubted in any submissions to me. Mr Warnock’s background seems to show he is an affable man who is sincere but perhaps with some rigid personality traits. Nevertheless, I accept him as a witness of truth and that he works approximately 60 hours per week on his farm. He is undoubtedly an energetic man and whether or not all of those hours are spent in the field or undertaking other duties associated with the establishment and management of his farm is not of any critical importance to the questions which the Tribunal must answer. Therefore, I accept he works 60 hours (approximately) per week or well in excess of his standard hours prior to his injury. I therefore determine that the “adjustment percentage” is 100%.
Ability to Earn
43. The only remaining question is the “AE” aspect of the formula in section 19(3) ie. the ability to earn. Relevant to considering this element is whether the applicant is in “suitable employment”. That term is defined in section 4(1) (see paragraph 30). There is ample and uncontradicted evidence, both of the applicant and medical specialists, that the work of a Macadamia farm producer and bus driver are both suitable employments for Mr Warnock, having regard to the factors of age, experience, training, language, other skills and reasonable proximity to his place of residence near Lismore.
44. Mr Warnock submitted that my decision in Robinson v Military Rehabilitation and Compensation Commission[11] supports the position of Senior Member Beddoe in Hooper v Comcare[12]. He also says Hooper is at odds with paragraph 37of the Federal Court of Australia decision of Flick J in Comcare v Davies[13]; and Comcare v Davies (No. 2)[14]. In Davies, His Honour differentiated the High Court case of Timbers v Nelson (supra) from the subsequent High Court decision in Cage Developments v Schubert[15]. The point of distinction was that actual earnings might in some circumstances be regarded as being the same as “ability to earn”. That was said to be where the business involved “personal services …..(e.g. the business of a sole plumber or casual gardener) and no significant investment of capital is involved”[16]. Robinson and Hooper also emphasise the point that in self employment, actual net profit may conceal expenditure which might not otherwise be regarded as business expenditure and therefore, net profit is not necessarily the best measure of ability to earn. Those decisions are not inconsistent with the applicant’s present position managing his small business in establishing a farm. It is also not inconsistent with the other principle the High Court espoused in Cage Developments Pty Ltd v Schubert[17], that one way the services might be valued is by determining how much one would have to pay another for those services (see paragraph 50 below). The decisions of Robinson and Hooper are therefore not inconsistent with the other authorities upon which this decision relies.
[11] [2008] AATA 37.
[12] (2001) 33 AAR 326.
[13] [2008] FCA 393.
[14] [2008] FCA 566.
[15] (1983) 151 CLR 584.
[16] Comcare v Davies [2008] FCA 393 at [37].
[17] (1983) 151 CLR 584 at 586.
45. In calculating this element, the original decision maker preferred the use of market rates to award rates. So do I. My preference for this is essentially based on the research presented by Ms Carder. Her report contains many statistics and while some are useful or indicative, some are more specific or helpful in determining the matter. The figures include average figures, which of course incorporate higher incomes and those from smaller operations which would be below the average. Her report cites weekly average figures produced by the Australian Bureau of Statistics for 2006 and 2007 for both farm managers and farm workers. I note the weekly wage for a farm manager declined almost $90 per week from 2006 to 2007. In addition, she provided a figure of $18 per hour as being the advertised rate of pay for a tractor driver for a Macadamia farm in Lismore. Candidates were required to be experienced, live locally and have their own transport. For a 40 hour week, this would equate to $720 per week. As Mr Warnock’s role is undoubtedly more responsible than that of a tractor driver, the figure of $778 per week for a farm manager cited by Ms Carder is probably a relevant and reasonable weekly figure to be used in Mr Warnock’s situation.
46. I note however that the other research which she provides shows that only 19% of employees in Australia have their pay set by an award. This of course includes industries other than the rural industry. However, other factors are also notable as was drawn out in evidence such as unemployment in Lismore which is 9%, twice the national average. Ms Carder’s research was also “desk research” and not field research where conclusions might have been based on area specific research. By that, I do not imply any criticism of Ms Carder. Her evidence, both oral and in her report was credible and her research appears to be done professionally. However, when using averages, it is implicit that smaller farms may pay lower rates than larger farms with more sophisticated equipment. The entitlements of Mr Warnock then may, given the specific statistics of unemployment and actual employment in Lismore, justify a conclusion that remuneration at the lower end of the scale, or no higher than the average would be fair in the present circumstances. At the opening of the hearing, Mr Dube submitted that Ms Carder’s report indicated that he might earn $790 per week.
47. In making calculations in relation to bus driving, there are approximately 41 weeks in the 2008 school year in New South Wales. While this was not specifically referred to in evidence or in submissions, I note this is income the applicant has for a majority of the year.
48. I accept that the state of the labour market is a relevant consideration. In that context, where appropriate, a beneficial construction should be given to the factors in section 19(4)[18]. The circumstances of an applicant must however be reasonable i.e. they must be reasonable in advancing rehabilitation and being employed[19]. The actual availability of suitable employment within a particular locality is also a relevant consideration for the purposes of section 19(4)(g)[20].
[18] Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 at 335.
[19] Re: Graham and MRCC [2006] AATA 286.
[20] Telstra Corporation Limited v Warner (1994) 20 AAR 259.
49. I accept the research of Ms Carder and in the context that Mr Warnock is working to establish his future. The standards shown do not seem to envisage employees undertaking paid work of 60 hours per week, or if it did, it would be seasonal work reflected in the average figures quoted. It might be that Mr Warnock should realistically separate the hours of management of his business (which he would do himself in running his business), versus the hours of actual farming which could be done by paid labour (using the reasoning of the High Court).The size of his business, actual or realistic levels of employment in the Lismore district, the statistics presented and Mr Warnock’s position under rehabilitation suggest to me that Ms Carder’s research showing the weekly earnings of a male farmer/farm manager in 2007 of $778 per week would be a fair remuneration standard for the applicant. This appears to me to be a realistic standard and takes account of a reduction in the average wage over the previous 12 months. I don’t think Mr Warnock’s submission of a nil value for “AE” is realistic.
50. Adopting the High Court principle of what he could have earned, that is what Mr Warnock would have had to pay somebody else for those services[21], then I would find that his ability to earn is to be calculated as follows –
Farming
$778 per week from 2007
Bus Driving
$100 per week(Calculation of the formula seems to require the application of $100 only in the weeks in which Mr Warnock works as a bus driver.)[21] Cage Developments v Schubert (1983) 151 CLR 584
CONCLUSION
51. On the basis of the above, I find that the elements of the formula to be applied in Mr Warnock’s case are:
Adjustment percentage – 100%
NWE – to be referred to the respondent for recalculation
AE – the “greater” of (a) or (b) in S.19(2) would be $778 per week for farming from 2007; and $100 per week for bus driving (in those weeks in which bus driving is carried out). The standard for farming from which this is adopted, the Australian Bureau of Statistics (ABS) Employee Earnings, Benefits and Trade Union membership, Australia annual publication (here the 2007 publication), appears at this time to be a fair representation of the market and is not biased in favour of either the applicant or the respondent.
DETERMINATION
52. The Tribunal determines that:
(1) The decision under review is set aside;
(2) The calculation of NWE is not within the bounds of the reviewable decision.
(3) The adjustment percentage is 100% of NWE.
(4)The AE for 2007 is $778 per week for farming and $100 per week for bus driving in weeks where that employment is available.
(5)The Tribunal remits the matter to the respondent for recalculation of the entitlement, taking account of s8 of the Safety Rehabilitation and Compensation Act 1988 (indexation) and any other statutory or relevant factor.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, RFD, Senior Member
Signed:………..............[Sgd]....................................................
Elizabeth Young, Research AssociateDate/s of Hearing 13 June 2008
Date of Decision 2 July 2008
For the Applicant The applicant was self-represented.
Counsel for the Respondent Mr Ben Dube
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