Zdziarski and Telstra Corporation Limited (Compensation)

The Administrative Appeals Tribunal considered the matter of Zdziarski and Telstra Corporation Limited. The applicant sought compensation for incapacity for work, with the central dispute revolving around the calculation of his normal weekly earnings (NWE) and whether overtime payments should be included and, if so, to what extent. The applicant had been paid compensation based on his pre-injury overtime hours, but the respondent sought to reduce this amount.

The Tribunal was required to determine whether the applicant's NWE, as calculated under section 19 of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), should be reduced in accordance with section 8(10)(b)(i) or (ii) of the SRC Act. This involved considering whether the applicant's pre-injury overtime hours were representative of what comparable employees were working at the relevant time, given a general reduction in overtime expenditure by the respondent.

The Tribunal applied section 8(10) of the SRC Act, which provides a cap on NWE by requiring a reduction if the calculated amount exceeds certain thresholds. The court noted that section 8(10)(b)(i) involves a notional continuation of the pre-injury employment to ascertain likely earnings. Drawing on the reasoning in *John Holland Group Pty Ltd v Robertson*, the Tribunal emphasised that this section requires an inquiry into likely earnings based on the terms of employment applicable at the date of injury, rather than a notional formulation of employment conditions that never existed. The Tribunal found that the applicant's NWE should be re-calculated by considering the average weekly overtime hours worked by comparable employees.

Consequently, the Tribunal set aside the reviewable decision of 23 September 2019 and remitted the matter to the respondent. The direction was that the applicant's entitlements under section 19 of the SRC Act for the relevant period should be recalculated, taking into account the average weekly overtime hours worked by comparable employees from the Newcastle Wireline team as identified in the decision.