WHITING and REPATRIATION COMMISSION

[2011] AATA 526

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 526

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0817

VETERANS' APPEALS  DIVISION		)
Re		JOHN WHITING

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date29 July 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...............[Sgd]...............................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Pensions, benefits and entitlements – Pension bonus scheme – Failure to accrue full-year pension bonus period – Pension bonus not payable – Decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth) ss 5QA, 45T, 45TC, 45TI, 45TR, 45TS, 45TW

REASONS FOR DECISION

29 July 2011 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      Mr John Whiting (the applicant) made an application for payment of a pension bonus under Part IIIAB of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). I give my reasons why I consider that he is not eligible for the payment of this benefit.

PRIOR DECISIONS

2.      On 15 April 2010, the applicant made a claim for age service pension as well as an application to register for pension bonus and a claim for pension bonus. On 29 July 2010, a delegate of the respondent rejected a claim by the applicant for pension bonus.

3.      The applicant sought a review of the decision, which was affirmed by a Service Pension Review Officer, another delegate of the respondent, on 18 February 2011.

4.      On 7 March 2011, the applicant made an application to this Tribunal for the review of the decision.

CONSIDERATION

5. The applicant did not make an application to join the pension bonus scheme when he reached the eligible age for pension of 60 years (s 5QA). Instead, he continued to work for five years. Under s 45T of the Act, “a person who wants to get a pension bonus is required to register as a member of the pension bonus scheme”. The applicant, who has always been gainfully employed, stated that he was unaware of the scheme for payment of the pension bonus. He only became aware of the existence of the scheme when he made a claim for service pension on the advice of his partner.

6. The applicant was disadvantaged in not registering for the pension bonus when he first became eligible to claim service pension under s 5QA of the Act. This is because to qualify for a pension bonus, a person must accrue at least one bonus period while deferring age service pension as well as being a member of the pension bonus scheme.[1]

[1] Veterans’ Entitlements Act 1986 (Cth) ss 45T, 45TC.

7. The first bonus period that accrues to a person who is a member of the pension bonus scheme is the full-year period of the person’s accruing membership of the pension bonus scheme. Under s 45TR of the Act, if that person was an accruing member of the pension bonus scheme, that bonus period began when the person’s registration as a member took effect.

8. Having regard to s 45TI(1) of the Act, I find that the applicant became a member of the pension bonus scheme on 15 April 2010 when he applied for registration as a member of the pension bonus scheme. The terms of s 45TI do not, in my view, enable the applicant to be registered on any earlier date than when the application for registration was made.

9. The work test under s 45TS of the Act requires the applicant to work for at least 960 hours in that first full-year bonus period. The evidence before me does not indicate that the applicant worked after he made his application to register for pension bonus. That has the consequence that he was unable to accrue a bonus period in the first year after he made his application to join the pension bonus scheme and thereby became a member of that scheme.

10. As the bonus period has to be a full-year period under s 45TR of the Act, the applicant did not complete a full-year bonus period after he made his application for registration for the pension bonus. I consider that the applicant was, for that reason, ineligible to be paid the pension bonus.

11. The applicant stated that he certainly has worked on average more than 960 hours per year over five years. That work period occurred from 20 August 2005 until 1 March 2010, when he was not a member of the pension bonus scheme. However, this work cannot qualify as a bonus period even for those years in which he met the work test. This is because s 45TC of the Act imposes a requirement that an applicant must have “accrued at least one full-year bonus period while registered as a member of the pension bonus scheme”. This requirement is not satisfied in respect of any work undertaken by the applicant when he was not a member of the pension bonus scheme.

12.     At the hearing before me there was some consideration given to the application of the Veterans’ Entitlements (Pension Bonus Scheme – Non-accruing Members) Declaration 2007 in relation to the period of 19 August 2008 until 18 September 2009. Section 5(e) of that declaration provides that one kind of non‑accruing member is “a member who is on paid or unpaid leave of any kind, or combination of kinds, from gainful work and who would not pass the work test for a bonus period during which any part of the leave is taken”.

13.     I have formed the view that the reference to the term “leave” in s 5(e) of the declaration must be understood to mean “permission to be absent, as from duty”.[2] The applicant, who I accept has been honest in giving evidence, stated that when he left the employment of a Western Australian citrus employer in August 2008[3] he “pulled his pins” and certainly did not make any application for leave. He left that employment because of the serious illness of his mother, who later passed away.

[2] Macquarie Dictionary (5^th ed, 2009), p 953.

[3] T-Document 7, Folio 73.

14.     The fact that the applicant did not return to his citrus employer when he rejoined the workforce is not decisive. What is important is that the applicant did not seek permission from the citrus employer to be absent from duty. The applicant quite openly admitted that the nature of his casual employment at the citrus employer meant that it was not realistic to expect that his job (which was that of a forklift driver) could be left open for him to return. In my view the applicant could not be said to be on “leave” within the meaning of s 5(e) of the declaration when he left the citrus employer.

15.     In any event, s 5(e) of the declaration does not have application to this case as it only applies where a person is a “member of the pension bonus scheme”. The applicant was certainly not a member of the pension bonus scheme at any time during the period in question. The purpose of the provision was to ensure that a scheme member who took leave for up to 26 weeks could remain in the pension bonus scheme provided that they do not otherwise fail the work test.[4]

[4] Second Reading Speech, Families, Community Services and Indigenous Affairs Legislation Amendment (Further 2007 Budget Measures) Bill 2007,Hon B Billson MP, Minster for Veterans’ Affairs and Minister Assisting the Minister for Defence, Parliamentary Debates, p 15 (20 June 2007).

16. The respondent has, quite properly, raised for consideration whether what was referred to in the hearing as the “general discretion” in s 45TW of the Act should be exercised in relation to the circumstances when the applicant ceased employment with the Western Australian citrus employer. That provision is contained in Division 5 of Part IIIAB of the Act, which is concerned with the work test where a person is an accruing membership of the pension bonus scheme. At the time when the applicant ceased employment in Western Australia, and for some time thereafter, he was not a member of the pension bonus scheme. Accordingly, in my view, the provision has no application to this application. In any event, there is no evidence before me that there has been “a substantial degree of personal exertion on the part of the person or the person’s partner” (s 45TW(1)(b)) such as to enliven the exercise of the discretion.

DECISION

17.     I affirm the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: ..........................[Sgd]...................................................
              Danielle Armstrong, Research Associate

Date/s of Hearing  15 June 2011
Date of Decision  29 July 2011
Applicant was self-represented
Solicitor for the Respondent     John Stoner, departmental advocate