Webeck and Comcare (Compensation) - [2022] AATA 3784

Webeck and Comcare (Compensation) [2022] AATA 3784 (10 November 2022)
Division:GENERAL DIVISION
File Number(s): 2021/9429
Re:Kenneth Webeck
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Member W Frost
Date:10 November 2022
Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
...........................[sgd].................................
Member W Frost
Catchwords
COMPENSATION – accepted injuries – calculation of weekly compensation for incapacity payments – employee’s normal weekly earnings – previous Tribunal decision – where the employee is found to cease employment – definition of employee - effect of industrial agreement on normal weekly earnings amounts – applicable indexation and relevant percentage rates – employee found to resign from employment – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss 42C, 43
Australian Federal Police Act 1979
Compensation (Commonwealth Government Employees) Act 1971, ss 27, 37
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5, 8, 9, 19, 23, 123, 124
Social Security Act 1991, ss 23
Cases
Brede and Department of Defence [1994] AATA 119
Chun v Comcare (2013) 209 FCR 399
Mayer and Comcare [2015] AATA 925
Military Rehabilitation & Compensation Commission v Perry (2007) 164 FCR 307
Singer and Comcare [2015] AATA 231
Secondary Materials
accessed on 1 November 2022
guide/3/4/1/10#:~:text=Since%201%20July%202017%2C%20the,67%20on%201%20July%202023, accessed on 1 November 2022.
Endnote 3 to the SRC Act and Gazette No. S196 from 1 July 1988, accessed at on 1 November 2022.

REASONS FOR DECISION
Member W Frost
10 November 2022
INTRODUCTION

The Applicant, Mr Kenneth Webeck, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision of the Respondent, Comcare, regarding the calculation of his weekly incapacity payments under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) from 19 August 2021 to 15 March 2022. For the reasons that follow, the Tribunal affirms Comcare's decision.
ISSUES
The relevant issues for the Tribunal to decide in this proceeding are:
(a)whether Mr Webeck is an ‘employee’ under the SRC Act;
(b)if so, whether Comcare is liable to pay compensation to Mr Webeck; and
(c)if so, how is compensation to be calculated.
BACKGROUND
On 12 September 1983, Mr Webeck made a claim for compensation to the then Commissioner for Employees’ Compensation, following an injury to his ‘lower left of back’, which occurred on the same day while in the performance of his duties with the Australian Federal Police (AFP).[1]
[1] Exhibit 1, pages 8-12.
In February 1984, Dr Jan Neubauer, General Practitioner, reported to the AFP that Mr Webeck sustained a workplace injury consisting of a ‘muscular strain to lower back and left sided sciatica’.[2]
[2] Ibid., page 13.
In June 1984, a delegate of the then Commissioner for Employees’ Compensation accepted Mr Webeck’s claim in respect of his injury ‘arising out of or in the course of his employment’ in September 1983, under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act).[3] As a result, and in accordance with section 27 of the 1971 Act, the AFP was liable to pay compensation in respect of Mr Webeck’s injury.[4] He received compensation for medical treatment associated with that injury until 1985, pursuant to section 37 of the 1971 Act.[5]
[3] Ibid., pages 14-15.
[4] Ibid.
[5] Ibid; Exhibit 3, page 19.
On 1 October 1985, Mr Webeck resigned from the AFP.[6]
[6] Exhibit 1, pages 18, 21, 47, 75 and 85.
In 1997, the Tribunal, differently constituted, made a decision following agreement as to the terms of a decision between Mr Webeck and Comcare pursuant to subsection 42C(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act), relevantly being that Mr Webeck suffered injuries to his lower back in the course of his employment with the AFP in 1980 and 1983 and these resulted in Comcare being liable to pay compensation to Mr Webeck under the SRC Act.[7]
[7] Ibid., pages 16-17.
In September 2005, Mr Webeck’s then solicitors wrote to Comcare seeking ‘reinstatement of incapacity payments associated with his lower back condition’.[8] Contrary to the suggestion in this correspondence, there was no evidence before the Tribunal that Mr Webeck had previously received any incapacity payments in relation to his accepted injury under section 19 of the SRC Act, although he had received compensation for medical treatment associated with that injury until 1985 under section 37 of the 1971 Act, and under section 16 of the SRC Act from the mid-1990s.[9]
[8] Exhibit 2, pages 1-2.
[9] Exhibit 1, pages 15-17; Exhibit 3, page 19.
On 15 September 2005, Comcare responded to Mr Webeck’s then solicitors requesting further information regarding his request and noting that Mr Webeck ‘resigned from the Commonwealth in 1985, and that there are no records of your client receiving Comcare approved incapacity payments’.[10]
[10] Exhibit 3, pages 44-45.
In October 2005, Mr Webeck’s then solicitors submitted information pursuant to Comcare’s request and contended that Mr Webeck ‘is incapacitated’ within the terms of the SRC Act.[11]
[11] Exhibit 1, pages 18-20.
On 6 December 2005, Comcare determined that Mr Webeck was entitled to incapacity payments ‘for the period 30/06/2003 to present’ under section 19 of the SRC Act.[12] Mr Webeck received incapacity payments under section 19 of the SRC Act for the period from 30 June 2003 to 15 March 2022 for his 1983 injury, totalling $1,514,066.20, which equates to an average of almost $80,000 per year over nearly 19 years.[13] The 2005 correspondence from Comcare referred to recent medical evidence indicating Mr Webeck’s incapacity since 30 June 2003 ‘has been materially contributed to by his compensable condition’.[14] Comcare noted that it ‘applied the agency increases (awards, workplace agreements, CPI increases, etc) that would have been applicable’[15] if Mr Webeck had remained in Commonwealth employment, and that because Mr Webeck:[16]
was totally incapacitated for the period 30/06/2003 to present, he is entitled to 100% of his N.W.E [Normal Weekly Earnings] for the first 45 weeks as per the provisions of section 19(2).
Once the first 45 weeks of incapacity is reached (approximately 09/05/2004), your client’s incapacity payments will be calculated as per the provisions of Section 19(3).
That is, he will receive 75% of his Normal Weekly Earnings figure.
[12] Ibid., pages 22-26.
[13] Exhibit 3, pages 64-66.
[14] Ibid.
[15] Ibid., page 25.
[16] Ibid., page 26.
On 15 December 2005, Comcare, on its own motion, reconsidered the abovementioned determination from 6 December 2005 and varied Mr Webeck’s normal weekly earnings figures for the period from 30 June 2003 to reflect his entitlement to ‘several increments’ that were previously not considered.[17]
[17] Exhibit 1, pages 27-28.
In 2009, the Tribunal, differently constituted, made a decision in the following terms under section 43 of the AAT Act, in relation to Mr Webeck’s normal weekly earnings for the purposes of determining his incapacity payments under section 19 of the SRC Act:[18]
(a)from 12 November 2001, Mr Webeck was entitled to a 4% pay rise under subsection 8(9) of the SRC Act;
(b)from 1 July 2007, Mr Webeck was entitled to an increase by way of an increment to Senior Constable Level 5.2 under subsection 8(6)(c) of the SRC Act;
(c)from 1 July 2008, Mr Webeck was entitled to an increase by way of an increment to Senior Constable Level 5.3 under subsection 8(6)(c) of the SRC Act;
(d)from 1 July 2003 to 9 January 2009, Mr Webeck was not entitled to the claimed night shift/penalty allowances as part of his Normal Weekly Earnings.
[18] Ibid., pages 50-51.
In August 2021, Dr David Harrison, General Practitioner, certified Mr Webeck as unfit for work from 8 August 2021 to 8 August 2022 due to the workplace injury in 1983, which resulted in ‘[s]pinal canal stenosis, degenerative lumbar spine disease’.[19]
[19] Ibid., pages 63-64.
On 25 August 2021, Comcare accepted liability to pay compensation by way of incapacity payments to Mr Webeck under subsection 19(3)(a) of the SRC Act from 19 August 2021 to 15 March 2022 at the rate of $1,949.58 per week, or 75% of his normal weekly earnings, totalling $58,097.45 for that period.[20] This was the final instalment of incapacity payments received by Mr Webeck from Comcare over the almost 19 year period he received such payments under section 19 of the SRC Act.[21]
[20] Ibid., pages 65-66.
[21] Exhibit 3, pages 64-66.
On 18 October 2021, following Mr Webeck’s request for a reconsideration of its determination, Comcare affirmed its decision regarding his incapacity payments under the SRC Act from 19 August 2021 to 15 March 2022.[22]
[22] Exhibit 1, pages 70-81 and 85-93.
In December 2021, Mr Webeck applied to the Tribunal for review of Comcare’s decision.[23]
LEGISLATION
[23] Ibid., pages 1-5.
SRC Act
Section 4 of the SRC Act states that ‘employee’ has the meaning given in section 5. Under subsection 5(1) of the SRC Act, an ‘employee’ means a person who ‘is employed by the Commonwealth or by a Commonwealth authority’, or a person who is employed by a licensed corporation.
Subsection 5(2) of the SRC Act relevantly provides that an AFP employee, within the meaning of the Australian Federal Police Act 1979, shall, for the purpose of the SRC Act, be taken to be employed by the Commonwealth, and the person’s employment shall be taken to be constituted by the person’s performance of duties as an AFP employee.
Most relevantly for this proceeding, subsection 5(9) of the SRC Act states that:
A reference to an employee in a provision of this Act that applies to an employee at a time after Comcare, an administering authority, a licensed authority or a licensed corporation has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee.
Section 123 of the SRC Act defines ‘former employee’ to mean:
a person who, immediately before the commencing day, was receiving weekly payments of compensation under the 1971 Act in respect of an injury resulting in an incapacity and had ceased to be an employee within the meaning of that Act before that day.
The ‘commencing day’ is defined in section 123 of the SRC Act to mean the day on which that Part of the SRC Act commences, being Part X setting out the transitional provisions from the 1971 Act and earlier Commonwealth workers’ compensation legislation. The then Commonwealth Employees’ Rehabilitation and Compensation Act 1988, now known as the SRC Act, received Royal Assent on 24 June 1988 and Part X of the SRC Act commenced on 1 December 1988, the latter therefore being the ‘commencing day’ for the purpose of sections 123 and 124 of the SRC Act.[24]
[24] See Endnote 3 to the SRC Act and Gazette No. S196 from 1 July 1988, accessed at on 1 November 2022.
Section 124 of the SRC Act relevantly provides that:
(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(2)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
Section 4 of the SRC Act defines ‘compensation leave’ to mean any period during which an employee is ‘absent from his or her employment due to an incapacity for work resulting from an injury in respect of which compensation is payable under section 19 or 22’.
Section 19 of the SRC Act sets out the formulas for calculating compensation payable to an employee who is incapacitated for work as a result of an injury. One element of these formulas is ‘NWE’, or ‘normal weekly earnings’, which are defined as ‘the amount of the employee’s normal weekly earnings’. Subsection 19(3)(a) of the SRC Act provides that Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated applying an ‘adjustment percentage’ of 75% of their ‘normal weekly earnings’ if the employee is ‘not employed’ during that week.
Section 8 of the SRC Act provides for the calculation of an employee’s normal weekly earnings before injury. Relevantly for this proceeding, subsections 8(9) to 8(9C) of the SRC Act state as follows:
(9) The normal weekly earnings of an employee before the date of the employee’s injury, as calculated under the preceding subsections, must, while the employee continues to be employed by the Commonwealth or a licensed corporation, be increased or reduced by the relevant percentage.
(9A) For the purposes of subsection (9), relevant percentage means the same percentage as the percentage of increase or reduction in the minimum amount per week payable in respect of employees included in a class of employees of which the employee was a member at the date of the injury as a result of:
(a) the operation of a law of the Commonwealth or of a State or Territory; or
(b) the making, alteration or operation of an award, order, determination or industrial agreement or the doing of any other act or thing, under such a law.
(9B) The normal weekly earnings of an employee before injury, as calculated under subsections (1) to (8) and as increased or reduced under subsection (9) must, if the employee has ceased, or ceases, to be employed by the Commonwealth or a licensed corporation, be further increased, with effect from each indexation date in relation to that cessation, by reference to the percentage of increase (if any) of an index that is prescribed for the purposes of this subsection over the year ending on the 31 December preceding each such indexation date.
(9C) For the purpose of subsection (9B), the indexation date, in relation to a cessation of employment, is:
(a) the 1 July next following:
(i) the date on which this Act receives the Royal Assent; or
(ii) the date of that cessation of employment;
whichever last occurs; and
(b) each subsequent 1 July. [emphasis in original]
Subsection 23(1) of the SRC Act provides that compensation is ‘not payable under section 19, 20, 21, 21A or 22 to an employee who has reached pension age’. The term ‘pension age’ is defined in subsection 4(1) of the SRC Act as having the meaning given by subsection 23(5A), (5B), (5C) or (5D) of the Social Security Act 1991. That legislation provides for a phased increase to the pension age by six months every two years, starting from 1 July 2017 until the pension age reaches 67 on 1 January 2023. Accordingly, the current ‘pension age’ for a person born on or after 1 July 1955 is 66 years and 6 months.[25] Mr Webeck was born on 16 September 1955 and therefore reached the ‘pension age’ of 66 years and 6 months on 16 March 2022. Therefore, pursuant to subsection 23(1) of the SRC Act, Mr Webeck did not receive payment from Comcare of any compensation by way of incapacity payments on and from this date.
contentions
[25] See also accessed on 1 November 2022.
Mr Webeck
Relevantly for this proceeding, Mr Webeck contended that, in the claimed period, he was neither a ‘former employee’ nor a ‘retired employee’ under the SRC Act, but rather was an ‘AFP employee’ from the commencement of that legislation on 1 December 1988. To this end, Mr Webeck submitted, contrary to Comcare’s position, that he had not, when he resigned from the AFP on 1 October 1985, ceased to be an ‘AFP employee’ for the purposes of the SRC Act.
Mr Webeck contended that he had no period of incapacity occurring before 1 December 1988 and consequently, section 19 of the SRC Act applies in respect of any injury and period of incapacity occurring after this time and Comcare is liable to pay him compensation in accordance with that provision. Mr Webeck submitted that the amount of compensation payable in the claimed period from 19 August 2021 to 15 March 2022 is an adjustment percentage equal to 75% of normal weekly hours because he was not employed during that week and identified subsection 19(3) of the SRC Act as the applicable provision for the determination of his incapacity payments.
As set out above in this decision, section 8 of the SRC Act provides the formula for the calculation of an employee’s normal weekly earnings. Mr Webeck contended that subsections 8(6)(c), (9) and (9A) of the SRC Act apply to the calculation of his normal weekly earnings and therefore the determination of his incapacity payments under section 19. These provisions under section 8 of the SRC Act relate to the increase of normal weekly earnings as a result of the receipt of any applicable increase in salary, wages or pay, and the mandated increase (or decrease), ‘while the employee continues to be employed by the Commonwealth’, of the employee’s normal weekly earnings by the ‘relevant percentage’, which means the same increase as other similar employees, including through any industrial agreement, such as an enterprise agreement for members of the AFP. In this regard, Mr Webeck did not agree with Comcare’s submission that subsection 8(9B) of the SRC Act was instead applicable to him, which provides for the indexation, using the Wage Price Index, of normal weekly earnings of an employee ‘if the employee has ceased, or ceases, to be employed by the Commonwealth’.
Among other things, Mr Webeck sought a decision from the Tribunal setting aside the decision under review regarding his incapacity payments and in substitution finding that he is on ‘compensation leave’, he has not ‘ceased’ to be employed by the Commonwealth and that his normal weekly earnings, calculated under section 19 of the SRC Act, be increased by salary, wages or pay by way of increments under subsections 8(6)(c), (9) and (9A) of the SRC Act, adjusted by the ‘relevant percentage’ applicable to an AFP member or employee.
Following the end of the hearing on 19 September 2022, and while the Tribunal’s decision was reserved, Mr Webeck applied on 5 October 2022 for a stay of the decision under review by the Tribunal. Mr Webeck submitted that, as questions remain regarding his employment status, he sought a stay order ‘directing the re-instatement of incapacity payments for my claim for time off work as determined under the SRC Act, commencing 16 March 2022’. He contended that ‘the decision to cease employment, as a result of an incapacity that prevents me from working Normal Weekly Hours, is for the AFP’ [emphasis in original] and that it is required to identify the nature of his ‘incapacity’ preventing him from working his normal weekly hours. Additionally, Mr Webeck submitted that Comcare had not provided any document from the AFP purporting to be a cessation of his employment by reason of the injury from 1983 resulting in his incapacity from 30 June 2003, ‘compulsory or otherwise’.
Comcare
Comcare contended that Mr Webeck is deemed to be an ‘employee’ for the purposes of the SRC Act in the claimed period because subsection 5(9) of the SRC Act provides that an ‘employee’ includes ‘a person who has ceased to be an employee’ and Mr Webeck resigned from the AFP in 1985. Comcare did not dispute that compensation was payable to Mr Webeck in respect of his injury from 1983, but submitted that his incapacity payments are to be calculated in accordance with subsections 19(3) and 8(9B) of the SRC Act, which amounted to $1,949.58 per week during the relevant period. Accordingly, Comcare submitted that the decision under review confirming this amount of weekly incapacity payments to Mr Webeck from 19 August 2021 to 15 March 2022 should be affirmed by the Tribunal.
CONSIDERATION
Is Mr Webeck an ‘employee’ under the SRC Act?

In September 1983, Mr Webeck suffered an injury to his lower back in the course of his employment with the AFP. In June 1984, liability to pay compensation to Mr Webeck was accepted under the 1971 Act for this injury. In 1985, Mr Webeck resigned his employment with the AFP.
The Tribunal finds that Mr Webeck is not a ‘former employee’ under the SRC Act because he was not, as required by section 123 of the SRC Act, receiving weekly payments of compensation under the 1971 Act in respect of his injury immediately before the ‘commencing day’ for the relevant provisions of the SRC Act on 1 December 1988. Subsection 124(1) of the SRC Act provides that this legislation applies in relation to an injury suffered by an employee whether before or after the commencing day on 1 December 1988. Mr Webeck made no claims under the 1971 Act after he resigned from the AFP on 1 October 1985 and up until 30 November 1988, noting again that the relevant provisions of the SRC Act commenced the following day on 1 December 1988. Mr Webeck made his first claim for compensation under the SRC Act in 1995 and this was the subject of a Tribunal decision in 1997.[26] He received incapacity benefits under the SRC Act from 2003.[27]
[26] Exhibit 1, pages 16-17.
[27] Ibid., pages 22-26.
The Tribunal finds that Mr Webeck is an ‘employee’ for the purposes of the SRC Act during the relevant period between August 2021 and March 2022, because subsection 5(9) of the SRC Act provides that a reference to ‘employee’ in the SRC Act includes, unless the contrary intention appears, a reference to a person who has ‘ceased to be an employee’. Mr Webeck ceased to be an employee of the Commonwealth and AFP when he resigned his employment in October 1985. It is immaterial in this proceeding that Mr Webeck ceased to be an employee before the commencement of the SRC Act. The application of the legislation is not limited to an ‘employee’ who ceased to be employed by the Commonwealth after the commencement of the SRC Act in 1988.
While section 5 of the SRC Act provides that an ‘employee’ can also mean a person who is ‘employed by the Commonwealth’ and includes an ‘AFP employee’, for the avoidance of doubt, the Tribunal is satisfied, based on the evidence, that Mr Webeck is not ‘employed by the Commonwealth’, the AFP or any Commonwealth authority. That is, he is not an ‘AFP employee’ under subsection 5(2) of the SRC Act. Mr Webeck resigned from the AFP in 1985. He is therefore not employed by the Commonwealth or, specifically, the AFP and has not been since 1985. Mr Webeck has not performed any work or duties for the AFP since he resigned in October 1985, and he has not since that time been in receipt of salary, wages or pay from the AFP. The Tribunal finds that Mr Webeck ‘ceased to be an employee’ of the Commonwealth when he resigned from the AFP in 1985 and, pursuant to subsection 5(9) of the SRC Act, is therefore deemed to be an ‘employee’ for the purposes of the SRC Act.
Is Comcare liable to pay compensation to Mr Webeck?
For completeness, the Tribunal accepts that Mr Webeck suffered an injury on 12 September 1983 in the course of his employment with the AFP, then described as a ‘muscular strain to lower back and left sided sciatica’.[28] Mr Webeck initially received compensation for this injury under the 1971 Act.
[28] Ibid., page 15.
Accordingly, under subsections 124(1) and (1A) of the SRC Act, Mr Webeck was entitled to compensation under the SRC Act in respect of the injury suffered before the ‘commencing day’, being 1 December 1988, because compensation was payable to Mr Webeck in respect of that injury under the 1971 Act.
In August 2021, and almost 38 years after the workplace injury in 1983, Dr Harrison certified Mr Webeck unfit for work from 8 August 2021 to 8 August 2022 as a result of that injury.[29] Dr Harrison described the current ‘clinical symptoms/diagnosis’ as ‘[s]pinal canal stenosis, degenerative lumbar spine disease’ and stated that this ‘work related injury’ was sustained on ‘12/09/1983’.[30] This was accepted by Comcare in continuing to make incapacity payments to Mr Webeck under the SRC Act and the Tribunal accepts that this condition arose out of, or in the course of, his employment in 1983. In any event, the particular medical label or term ascribed to Mr Webeck’s condition at that time or almost 40 years later due to his workplace injury in 1983 is not relevant to the issues before the Tribunal in this proceeding. Mr Webeck has an accepted injury under the SRC Act and his application to the Tribunal concerns the calculation of his incapacity benefits arising from that injury.
[29] Ibid., pages 63-64.
[30] Ibid., page 63. See also Exhibit 3, pages 170.
Compensation for injuries resulting in incapacity for work is determined pursuant to either section 19, 20, 21, 21A or 22 of the SRC Act. The Tribunal finds that sections 20, 21, 21A and 22 of the SRC Act do not apply to Mr Webeck. In this regard, sections 20, 21 and 21A provide that compensation is payable if the employee is ‘retired from his or her employment (whether the employee retired voluntarily or was compulsorily retired)’. Mr Webeck is not ‘retired’ from his employment and did not contend so in this proceeding. As the Tribunal has found, Mr Webeck resigned from his employment with the AFP in 1985.
In addition, section 22 of the SRC Act applies to an employee who, among other things, as a result of an injury, is ‘maintained as a patient in a hospital, nursing home or similar place and has been so maintained for a continuous period of not less than one year’. On the evidence before the Tribunal, it is satisfied that this provision is inapplicable to Mr Webeck. It was not contended otherwise.
Accordingly, Comcare is liable to pay compensation to Mr Webeck in accordance with section 19 of the SRC Act and specifically, subsection 19(3), during the relevant period from 19 August 2021 to 15 March 2022.
In circumstances where Mr Webeck reached ‘pension age’ on 16 March 2022, pursuant to subsection 23(1) of the SRC Act, from that date he was not entitled to receive compensation under, relevantly, section 19 of the SRC Act. That is, Mr Webeck was entitled to receive compensation under the SRC Act up until 15 March 2022 and, relevantly for this proceeding, from 19 August 2021 to 15 March 2022.
How is compensation to be calculated?
The Tribunal finds that Comcare is liable to pay compensation to Mr Webeck, in respect of the injury, for each week during the claimed period of 19 August 2021 to 15 March 2022 in accordance with the formula set out in subsection 19(3)(a) of the SRC Act, being “(Adjustment percentage x NWE) – AE”, where: ‘adjustment percentage’ is equal to 75% on the basis that Mr Webeck was ‘not employed’ during each week of the relevant period; ‘NWE’ is the amount of Mr Webeck’s normal weekly earnings calculated under section 8 of the SRC Act; and ‘AE’ is, pursuant to subsection 19(2) of the SRC Act, the greater of the amount per week (if any) that Mr Webeck is able to earn in suitable employment and the amount he earns from any employment (including self-employment). This latter amount is found to be nil because, on the accepted evidence, Mr Webeck could not work during the relevant period of time the subject of this proceeding.
The Tribunal finds that subsection 8(9B) of the SRC Act applies to the calculation of Mr Webeck’s ‘normal weekly earnings’ (NWE) under subsection 19(3) of the SRC Act because it provides that:
The normal weekly earnings of an employee before injury, as calculated under subsections (1) to (8) and as increased or reduced under subsection (9) must, if the employee has ceased, or ceases, to be employed by the Commonwealth or a licensed corporation, be further increased, with effect from each indexation date in relation to that cessation, by reference to the percentage of increase (if any) of an index that is prescribed for the purposes of this subsection over the year ending on the 31 December preceding each such indexation date.
The Federal Court of Australia in Military Rehabilitation & Compensation Commission v Perry (2007) 164 FCR 307 at [48], [49] and [53], relevantly stated that:
Section 8(9B) refers to the circumstance “if the employee has ceased, or ceases, to be employed … ”. These are words which should be given a meaning (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ). Section 8(9B) specifies application both to a person who has been injured and has already ceased to be employed and to a person who has been injured and who ceases to be employed. Contrary to the Tribunal's conclusion and Mr Perry's submission, the subsection does apply to persons injured before the commencement date. It applies to periods of incapacity after its commencement and changes the method of calculation of normal weekly earnings.
As s 8(9B) is drafted, it is not the injury but the cessation of employment that is the condition that imports the application of the subsection, with effect from each future indexation date in relation to that cessation, by reference to the Wage Cost Index.
…
The words of s 8(9B) make it clear that the subsection is intended to apply to former employees and also to a person who subsequently ceases to be an employee. This is also apparent from the extrinsic material. The Second Reading Speech refers to “former employee” and the Explanatory Memorandum to “people who are no longer employed by the Commonwealth” as well as to “former employees”.
As the Tribunal has found, Mr Webeck ceased to be employed by the Commonwealth in 1985. Section 8 of the SRC Act does not limit its operation to injuries that occurred after the commencement of the legislation in 1988. In particular, the words of subsection 8(9B) of the SRC Act do not limit its operation or application to an employee who has ceased, or ceases, to be employed by the Commonwealth only after the commencement of the SRC Act in 1988. Subsection 8(9B) of the SRC Act provides that the normal weekly earnings of an employee must, if they have ceased to be employed by the Commonwealth, be increased by reference to the percentage increase set out in a prescribed index in accordance with the terms of that provision and subsection 8(9C) of the SRC Act, which relevantly provides that the ‘indexation date’ is the 1 July following the date of cessation of employment and each subsequent 1 July. For the purpose of subsection 8(9B) of the SRC Act, the annual indexation percentage applied to normal weekly earnings from 1 July 2021, was 1.5%, which was set using the Wage Price Index published by the Australian Statistician.[31]
[31] accessed on 1 November 2022.
The Tribunal notes that in the year prior to 1 July 2021, the quantum of Mr Webeck’s normal weekly earnings was determined by Comcare to be $2,561.02 and that 75% of this amount is $1,920.76, which Comcare paid Mr Webeck from 1 July 2020 to 30 June 2021. An increase of 1.5% on Mr Webeck’s normal weekly earnings of $2,561.02 from 1 July 2021, pursuant to subsections 8(9B) and (9C) of the SRC Act, equals an amount of $2,599.44 in normal weekly earnings. Therefore, applying the formula under subsection 19(3)(a) of the SRC Act, 75% of $2,599.44 minus nil equals $1,949.58 per week. This was the weekly amount determined by Comcare as being payable to Mr Webeck in the decision under review and the amount it paid to him by way of payments from 1 July 2021 to 15 March 2022, which includes the relevant period in this proceeding from 19 August 2021 to 15 March 2022.[32] Based on the Tribunal’s above findings, it is satisfied that Comcare applied the correct provisions of the SRC Act in calculating Mr Webeck’s normal weekly earnings for the purposes of determining his incapacity payments in the relevant period.
[32] Exhibit 3, page 64.
For completeness, the Tribunal also finds that sections 8(6)(c), 8(7), 8(9), 8(9A), 8(9E), 8(9F) and 8(9G) of the SRC Act do not apply because Mr Webeck resigned from his AFP employment and had reached a Level 5.3 classification for the purpose of receiving incapacity payments, being the top level in the band 5 classification structure in the AFP. A person would be required to be successfully promoted by way of a merit based selection process in order to progress to a higher band within the AFP.[33] That is, there is no further automatic entitlement to an increase in Mr Webeck’s ‘salary, wages or pay’, for the purpose of calculating his normal weekly earnings, by way of an increment in a range of salary, wages or pay under subsection 8(6)(c) of the SRC Act. In this regard, the AFP Enterprise Agreement 2017-2020 provides that advancement to ‘Band and Increment Point’ 6.1, being the next band or level in the AFP classification structure after Mr Webeck’s band 5.3 level, is ‘via a merit based selection process’.[34] It is therefore not subject to incremental progression after a certain period of time, such as 12 months, as with the previous increases in incapacity payments received by Mr Webeck, pursuant to the Tribunal’s decision in 2009, due the applicable increments for a band 5.2 in the AFP from 1 July 2007 and from a band 5.2 to a band 5.3 from 1 July 2008.[35]
[33] Ibid., pages 186-188.
[34] Ibid.
[35] Exhibit 1, pages 50-51.
To this end, the Federal Court of Australia in Chun v Comcare (2013) 209 FCR 399 at [61] held, in relation to subsection 8(6)(c) of the SRC Act, that:
The provision only operates if the minimum amount per week payable is increased or would have been increased because of the receipt of an increase in salary, wages or pay by way of an increment in a range of salary, wages or pay applicable to the employee or to his or her office, position or appointment. Absent that condition “normal weekly earnings” is not increased under that provision. In light of the unchallenged finding of fact by the Tribunal that the applicant had already reached the highest level in the range of salary for the position he held for the purposes of s 8(6)(c), it follows, as the Tribunal held, that the applicant's weekly compensation should be increased only by reference to the index prescribed for the purposes of s 8(9B).
For completeness, the Tribunal is also satisfied that Mr Webeck is not an ‘AFP EA Employee’ for the purposes of the AFP ‘Determination 2 of 2020’ regarding ‘Increases to Salary and Specified Allowances’ made on 16 December 2020, because he was not at or after that time ‘a person who is employed under the AFP Act and whose employment is covered by the AFP Enterprise Agreement’.[36] As the Tribunal has found, Mr Webeck ceased to be an employee of the AFP and the Commonwealth in 1985 and subsection 8(6)(c) of the SRC Act was not applicable after reaching the highest level in the relevant employment band in the AFP, being level 5.3, for the purposes of calculating his normal weekly earnings.[37] Mr Webeck was therefore not entitled to the base salary increase of 2% effective from 25 November 2021, which was received by ‘AFP EA Employees’ under the AFP Determination.[38]
[36] Exhibit 3, page 156-163.
[37] Ibid.
[38] Ibid., page 158.
Additionally, the Tribunal is satisfied that subsection 8(8) of the SRC Act does not apply to Mr Webeck because his employment was not of a kind referred to in subsection 5(4) or (6) or subsection 8(3) of the SRC Act.
For the avoidance of doubt, and as a result of the Tribunal’s above findings, the Tribunal is not satisfied that Mr Webeck was on ‘compensation leave’ from his employment with the AFP during the relevant period for the purpose of the SRC Act. That is, because Mr Webeck resigned from his employment in 1985, and has not worked for the AFP since that time, he was not ‘absent from his…employment due to an incapacity for work’, as set out in the definition of ‘compensation leave’ under subsection 4(1) of the SRC Act.
The Tribunal is also satisfied that the determination made by Comcare on 25 August 2021 was validly made and meets the requirements of a determination under section 61 of the SRC Act. Mr Webeck acknowledged that this document likely arose due to his lodgement 13 days earlier of a ‘Medical Certificate for Compensation’ dated 12 August 2021, in relation to his accepted injury from 1983 and certifying Mr Webeck as unfit to work from 8 August 2021 to 8 August 2022.[39] That is, the purpose of this medical certificate was for Mr Webeck to continue being paid incapacity payments under section 19 of the SRC Act due to Comcare’s accepted liability to pay him compensation. While some of the wording in the determination may not have perfectly communicated the nature of Mr Webeck’s claim, by referring to a ‘claim for time off work’ and it being a ‘reconsidered determination’, it set out Comcare’s determination and calculation of his compensation benefit by way of incapacity payments from 19 August 2021 to 15 March 2022, which were payable pursuant to subsection 19(3)(a) of the SRC Act. As required under section 61 of the SRC Act, the document from Comcare to Mr Webeck dated 25 August 2021 set out the terms of, and reasons for, the determination and a statement to the effect that he may request a reconsideration of the determination. He did so on 16 September 2021 and Comcare provided Mr Webeck with its reconsideration decision on 18 October 2021, the subject of this proceeding.[40]
[39] Exhibit 1, pages 63-64.
[40] Ibid., pages 70 and 85-93.
Furthermore, the Tribunal decision of Brede and Department of Defence [1994] AATA 119 (Brede), referred to by Mr Webeck in post-hearing submissions, is not applicable to his circumstances because Mr Brede, unlike Mr Webeck, was in receipt of incapacity payments immediately before the 1971 Act was repealed and replaced by the SRC Act. That is, Mr Brede was a ‘former employee’ as defined by section 123 of the SRC Act. Accordingly, Mr Brede’s ongoing entitlements were determined on the basis that he was a ‘former employee’ and section 134 of the SRC Act applied so that the amount of compensation payable per week to him was reduced under a particular formula set out in that provision, which resulted in a 5% reduction for every year between the age of a person being paid compensation under the 1971 Act and the person reaching pension age. As the Tribunal in Brede noted at [8], the formula in section 134 of the SRC Act applicable to a ‘former employee’ is intended to ensure that by the year 2008, 20 years after the introduction of the SRC Act, a person who reaches pension age will no longer receive compensation and was therefore ‘designed to bring about the same result [as subsection 23(1) of the SRC Act] over a longer period of time’. The Tribunal again notes that Mr Webeck reached ‘pension age’ on 16 March 2022 and compensation was no longer payable to him from that date pursuant to subsection 23(1) of the SRC Act.
Similarly in Mayer and Comcare [2015] AATA 925 and Singer and Comcare [2015] AATA 231, also referred to by Mr Webeck in post-hearing submissions, the applicants in those proceedings were each, unlike Mr Webeck, a ‘former employee’ under the SRC Act and their entitlement to compensation under the legislation was treated accordingly. Mr Webeck’s entitlement to incapacity payments under section 19 of the SRC Act was determined to be payable from 30 June 2003, being well after the repeal of the 1971 Act and the commencement of the SRC Act in 1988. That is, because Mr Webeck resigned from his employment with the Commonwealth in 1985 and was not in receipt of any compensation immediately before the ‘commencing day’, being 1 December 1988, he is not a ‘former employee’, but an ‘employee’ under subsection 5(9) of the SRC Act, being a person who has ‘ceased to be an employee’. The Tribunal has also found that Mr Webeck is not presently an ‘AFP employee’ under the SRC Act. The calculation of Mr Webeck’s normal weekly earnings is therefore to be undertaken pursuant to subsection 8(9B) of the SRC Act in order to determine his incapacity payments under subsection 19(3)(a) of the SRC Act from 19 August 2021 to 15 March 2022, as a result of the 1983 injury.
Disposition of Mr Webeck’s stay application

Section 41 of the AAT Act relevantly provides that:
(1) Subject to this section, the making of an application to the Tribunal for review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
(2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any person who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review. [emphasis in original]
As previously stated in this decision, the Tribunal held its substantive hearing in this proceeding on 19 September 2022. At the conclusion of that hearing, the Tribunal reserved its decision in relation to Mr Webeck’s application for review of Comcare’s decision of 18 October 2021.
On 5 October 2022, more than two weeks after the end of the Tribunal hearing, Mr Webeck made an application for a stay order with short, emailed submissions. This application was further supported by way of correspondence to the Tribunal from Mr Webeck on 9 October 2022. Effectively, Mr Webeck’s stay application sought further incapacity payments, from 16 March 2022, noting that the relevant period of incapacity payments under the reviewable decision was from 19 August 2021 to 15 March 2022. On 11 October 2022, the Tribunal made a direction for Comcare to provide any submissions in relation to Mr Webeck’s stay application by 17 October 2022. These were provided by Comcare on 14 October 2022. Following receipt of these submissions, Mr Webeck made further, unsolicited, submissions on 14 and 17 October 2022. The Tribunal has considered all of the submissions regarding this issue and has set out above the nature of Mr Webeck’s contentions.
Comcare opposed Mr Webeck’s stay application and submitted that the Tribunal must first be satisfied that the statutory purpose of subsection 41(2) of the AAT Act is present. That is, Comcare contended, the evidence must be such that the Tribunal can be satisfied that a stay order is necessary to secure both the effectiveness of the hearing and determination of the application for review. Comcare noted that Mr Webeck’s substantive application before the Tribunal proceeded to a hearing on 19 September 2022, which concluded with a decision reserved. Therefore, Comcare submitted, because the substantive hearing had concluded, the Tribunal cannot be satisfied the precondition required in subsection 41(2) of the AAT Act is met. Moreover, Comcare contended that Mr Webeck could not receive the requested stay order for incapacity payments from 16 March 2022, because he had from this date reached the ‘pension age’ and, as set out above in this decision, under subsection 23(1) of the SRC Act no compensation is payable under sections 19, 20, 21, 21A or 22 of the SRC Act. Additionally, Comcare submitted that a decision under subsection 23(1) is not listed in the definition of ‘determination’ in section 60 of the SRC Act, such that it could, following the making of a reviewable decision, be capable of review by the Tribunal.
Having regard to the status of this proceeding, including the Tribunal’s above findings in these written reasons, the Tribunal is not satisfied that it is desirable to make an order staying or otherwise affecting the operation or implementation of the decision under review. The Tribunal held a hearing on 19 September 2022, before Mr Webeck made his application for a stay order on 5 October 2022. The Tribunal has in this decision and reasons affirmed Comcare’s reviewable decision of 18 October 2021. The Tribunal has therefore concluded its determination of the application for review the subject of this proceeding. Plainly, in these circumstances, a stay order is not desirable, appropriate or required ‘for the purpose of securing the effectiveness of the hearing and determination of the application for review’, as required under subsection 41(2) of the AAT Act. The Tribunal held the hearing before Mr Webeck made his application for a stay order and it has concluded its determination of the substantive application. The Tribunal is therefore not satisfied that the purpose of subsection 41(2) of the AAT Act is present such that the Tribunal should consider staying or otherwise affecting the operation or implementation of the decision under review. This precondition to the potential exercise of the Tribunal’s discretionary power to make a stay order under subsection 41(2) of the AAT Act was not present from the time of the Tribunal hearing. For these reasons, the Tribunal refuses Mr Webeck’s application for a stay order.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

...........................[sgd].............................................
Associate
Dated: 10 November 2022

Date(s) of hearing:

19 September 2022

Date final submissions received:

17 October 2022

Applicant:
In person

Counsel for Respondent:

Mr Brendan Kelly

Solicitor for Respondent:

Mr Joseph Everdell, Moray & Agnew Lawyers

Date(s) of hearing:	19 September 2022
Date final submissions received:	17 October 2022
Applicant:	In person
Counsel for Respondent:	Mr Brendan Kelly
Solicitor for Respondent:	Mr Joseph Everdell, Moray & Agnew Lawyers