Comcare v Hart [2004] FCA 1067

FEDERAL COURT OF AUSTRALIA

Comcare v Hart [2004] FCA 1067

WORKERS COMPENSATION – Commonwealth employees – appeal from Administrative Appeals Tribunal (AAT) – statutory compensation entitlement calculated by reference to 'normal weekly earnings' (NWE) of employee – whether adjustment to NWE required in circumstances where relevant workplace had been restructured such that duties equivalent to those performed by the injured employee at date of injury had been re-classified by the employer

Safety, Rehabilitation and Compensation Act 1988, s 8 COMCARE v JOHN HART A 32 OF 2003 GYLES J 19 AUGUST 2004 SYDNEY (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 32 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: COMCARE

APPLICANT

AND: JOHN HART

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 19 AUGUST 2004

WHERE MADE: SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT: The proceeding stand over to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 32 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: COMCARE

APPLICANT

AND: JOHN HART

RESPONDENT

JUDGE: GYLES J

DATE: 19 AUGUST 2004

PLACE: SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT 1 This is an appeal on a question of law from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 5 November 2003 which set aside a decision by Comcare (the applicant) as to the normal weekly earnings (NWE) of John Anthony Hart (the respondent) pursuant to s 8 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). 2 In 1998 the respondent was employed at the Quamby Youth Detention Centre in the Australian Capital Territory. His substantive position was at the level of Administrative Services Officer (ASO) Class 2 but he was acting at ASO Class 3 level. He suffered injury in the form of a psychiatric condition, 'depression with anxiety symptoms', which was accepted as the basis of a claim for compensation under the Act effective from 10 February 1998. His normal weekly earnings (NWE) for the purpose of s 8 of the Act included overtime and penalties. 3 Later, the employment arrangements at Quamby were restructured. The substantive ASO 2 position was abolished and a new ASO Grade 3 Youth Worker position was created and there were also new ASO 4 and ASO 5 positions. On 4 April 2000 Comcare determined that the respondent's compensation payments should be calculated according to s 8(10) of the Act by reference to the NWE of an ASO 3 Youth Worker at Quamby which would include average overtime and penalties for such a worker. 4 Following a review of the penalties and overtime for ASO 3 Youth Workers for the period 1 July 2000 to 30 June 2001, on 8 October 2001 Comcare determined that the respondent's NWE exceeded the amount per week of earnings that he would have received if he was not incapacitated for work and, in accordance with s 8(10) of the Act, that his NWE should be reduced by the amount of the excess. That determination was the subject of a reconsideration which in turn is the decision under review by the Tribunal. The operative part of the decision under review was as follows: 'Having considered all of the issues, and in accordance with the provisions of the Act, I am satisfied that for the purposes of calculating the employee's entitlement to compensation under section 19 of the Act, his NWE should be determined on a quarterly basis, taking into account the average overtime and penalties paid to ASO3 Youth Workers in the previous quarter. Accordingly, I vary the determination dated 8 October 2001 to find that the employee is entitled to compensation for the following periods: 25 October 2001 to 31 December 2001: 1 January 2002 to 31 March 2002: 1 April 2002 to 30 June 2002: 1 July 2002 to 30 September 2002; This matter will be remitted back to the claims manager for calculation of entitlements (if any).' 5 The decision of the Tribunal was as follows: 'The decision under review is set aside. In its place the tribunal decides that, with effect from 18 October 1999, the applicant's NWE should be regarded as the NWE of an ASO 4 officer at Quamby Youth Detention Centre. The decision having been favourable to the applicant, he qualifies for payment of his costs associated with this application in accordance with the provisions in the tribunal's General Practice Direction.' 6 To understand the difficulty which has arisen, it is necessary to have regard to s 8 of the Act as a whole: 'Normal weekly earnings (1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula: