Wood v ASP Ship Management Pty Ltd - [2007] FCA 459

FEDERAL COURT OF AUSTRALIA
Wood v ASP Ship Management Pty Ltd [2007] FCA 459
ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal – calculation of worker’s compensation payments – whether the Tribunal applied proper construction of s 13(6) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth), s 44
Seafarers Rehabilitation and Compensation Act 1992 (Cth), ss 13(5), (6)
Comcare v Thompson (2000) 175 ALR 163 at [45] cited
Re Thompson and Comcare (2002) 69 ALD 762 at [28] cited
STEVEN SIDNEY WOOD v ASP SHIP MANAGEMENT PTY LTD
NSD1428 OF 2006
EMMETT J
28 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD1428 OF 2006

BETWEEN:

STEVEN SIDNEY WOOD
Applicant

AND:

ASP SHIP MANAGEMENT PTY LTD
Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

28 MARCH 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The decision of the Administrative Appeals Tribunal made on 30 June 2006 be set aside.

2.The matter of the review by the Administrative Appeals Tribunal of the respondent’s determination not to increase the applicant’s incapacity payments be remitted to the Administrative Appeals Tribunal for reconsideration according to law.
3.The respondent pay the applicant’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD1428 OF 2006

BETWEEN:

STEVEN SIDNEY WOOD
Applicant

AND:

ASP SHIP MANAGEMENT PTY LTD
Respondent

JUDGE:

EMMETT J

DATE:

28 MARCH 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This appeal from a decision of the Administrative Appeals Tribunal (the Tribunal), pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (the Tribunal Act), concerns the proper construction of s 13(6) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the Act). Section 13(6) relevantly has the effect that, if the amount per week payable to employees in a class to which an employee belonged when that employee became incapacitated, is later increased, the compensation payable to the employee as a result of the incapacity must be increased by the same percentage as that by which that amount per week was so increased.
The Tribunal found that the appellant, Steven Sidney Wood (the Seafarer), was employed by the respondent, ASP Ship Management Pty Ltd (ASP), as a catering attendant although he is also referred to as a catering assistant. Nothing appears to turn on the difference. The Seafarer was employed by ASP until his career ended in January 1997 as a result of incapacity connected with his employment. The Seafarer received compensation payments from ASP but contends that they have been incorrectly calculated in that increases required by s 13(6) of the Act have not been taken into account. The Tribunal held that there are no longer any members of the class of employees to which the Seafarer belonged at the time of his incapacity. The Tribunal concluded, therefore, that s 13(6) could have no operation and the payments…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FCA 459
Decision Date: 28 March 2007

CaseChat Overview and Summary

The case of Wood v ASP Ship Management Pty Ltd involved the claimant, Wood, who had become incapacitated while employed as a catering assistant by ASP. The dispute centred on the calculation of incapacity payments Wood was entitled to receive under section 13(6) of a relevant industrial instrument. The matter was brought before the Administrative Appeals Tribunal and subsequently appealed to a higher court. The central legal issues revolved around the interpretation of section 13(6), specifically concerning the identification of the employee class to which Wood belonged and the determination of the remuneration amount for that class at the time of his incapacity. Wood argued that the class of catering assistants continued to exist and that the remuneration rates from other enterprise agreements could be used to calculate the percentage variation for his incapacity payments. ASP, however, contended that the class of catering assistants no longer existed as they were no longer employed by ASP and that differences between the blue water and offshore industries warranted distinct classification and remuneration.

The court examined the statutory language and the legislative intent behind section 13(6), ultimately concluding that the identification of the employee class was inextricably tied to the remuneration amount paid to employees within that class. The court found that for the purpose of calculating the percentage variation under the provision, both the class and the specific remuneration amount needed to be identified. Since ASP no longer employed catering assistants, the court held that the class in question could not be accurately identified, and therefore, the Tribunal's decision was flawed. Consequently, the court set aside the Tribunal's decision and remitted the matter back to the Tribunal for reconsideration in accordance with the law.

The court's orders included setting aside the Administrative Appeals Tribunal's decision, remitting the matter back to the Tribunal for reconsideration, and directing that the respondent, ASP, pay the applicant's costs. This ruling underscored the importance of precise identification of the employee class and its associated remuneration when applying section 13(6) for calculating incapacity payments.

Orders

Orders of the court

1. The decision of the Administrative Appeals Tribunal made on 30 June 2006 be set aside.

2. The matter of the review by the Administrative Appeals Tribunal of the respondent’s determination not to increase the applicant’s incapacity payments be remitted to the Administrative Appeals Tribunal for reconsideration according to law.

3. The respondent pay the applicant’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EMMETT J

As at January 1997, when the Seafarer became incapacitated, ASP employed 35 catering assistants. None of those individuals are now employed by ASP, the latest having terminated in March 2000. The bulk of the individuals terminated their employment in 1997 or 1998. Catering assistants affected by the rationalisation either took voluntary redundancy or found employment as chief caterers with ASP or employment as catering assistants on other vessels. About one-third accepted redundancy, the remaining two-thirds finding work elsewhere.THE TRIBUNAL’S DECISION The Seafarer submitted to the Tribunal that the class to which he belonged is that of “catering assistant”, and that that class of employees continues to exist for the purposes of s 13(6) in relation to vessels operating in the offshore segment. He says that the calculation of any percentage variation under s 13(6), therefore, should be done on the basis of figures attaching to catering assistants under a range of enterprise agreements concerning such offshore vessels. He proposed that the Tribunal choose one of those enterprise agreements or direct that an average be taken in order to arrive at an indicator for an appropriate percentage increase. There was evidence before the Tribunal, for example, that enterprise agreements entered into in relation to some six offshore vessel operators provided identical rates of pay for caterers from October 2001 to July 2004. Enterprise agreements entered into by other offshore vessel operators provided for similar rates of pay for periods from January 2005. The Seafarer contended, in effect, that the work performed by caterers under those enterprise agreements was the same type and kind of work that he was performing on Australian Endeavour prior to his incapacity. Accordingly, the Seafarer contended, caterers who were subject to those enterprise agreements were employees in a class to which the Seafarer belonged at the time when he became incapacitated. It was, therefore, possible to make an adjustment under s 13(6) by reference to the amount payable to caterers under such agreements. ASP contended, on the other hand, that s 13(6) requires, not only the identification of a class, but the identification of the amount per week payable to employees in that class. ASP said that, because it no longer employs any catering assistants, the class to which the Seafarer belonged no longer exists. It also argued that, even if the class of catering assistants is not restricted to employees of ASP, no such class exists because of various differences between the blue water industry and the offshore industry and the importance of those differences to levels of remuneration. The Tribunal concluded that s 13(6) requires the identification not only of a class to which an employee belonged, but also of “the amount per week payable to employees in the class to which such an employee belonged”. The Tribunal said that the class is inextricably tied to, and identified by, the amount of its remuneration and must be linked in that way in order for the percentage variation under the provision to be calculated.

Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1428 OF 2006

BETWEEN:	STEVEN SIDNEY WOOD Applicant
AND:	ASP SHIP MANAGEMENT PTY LTD Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	28 MARCH 2007
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1428 OF 2006