WFJF and Comcare (Compensation)

This matter concerned an appeal by WFJF (the applicant) against a decision by Comcare (the respondent) regarding the calculation of incapacity payments under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The dispute centred on whether the applicant was entitled to a further increase in his normal weekly earnings (NWE) after an initial increase due to a wage freeze had already been applied, and then an Enterprise Bargaining Agreement (EBA) increase. The decision was heard by A Poljak SM.

The primary legal issue before the court was to determine the correct interpretation and application of section 8 of the SRC Act, specifically concerning the calculation of an employee's NWE. The court had to consider whether an employee, who continues to be employed by the Commonwealth, could receive an increase to their NWE based on fluctuations in the minimum weekly amount payable to other employees in their class, even after an initial adjustment due to a wage freeze and subsequent EBA increase. This involved assessing whether such a construction could lead to an unfair outcome or "double dipping" for the employee, contrary to the purpose of section 8.

The court reasoned that section 19 of the SRC Act governs the amount of compensation payable during incapacity, calculated using the formula NWE – AE. Section 8 of the Act outlines how NWE is calculated and provides for adjustments to reflect fluctuations in the minimum weekly pay for employees in the same class. Specifically, subsections 8(9) and (9A) stipulate that NWE should be increased or reduced by the relevant percentage, which is tied to changes in the minimum weekly amount payable due to laws or industrial agreements. The court considered the respondent's argument that allowing a further EBA increase on top of an initial adjustment for a wage freeze could lead to an employee being in a significantly better position than if they had not been injured, which is contrary to the purpose of section 8. The court noted that while subsections 8(9E) and (9F) offer protection during a wage freeze, the applicant's proposed interpretation could result in an unintended windfall.

The court set aside the decisions under review and remitted the matter for redetermination in accordance with its findings.