FEDERAL COURT OF AUSTRALIA

John Holland Group Pty Ltd v Robertson [2010] FCAFC 88

FEDERAL COURT OF AUSTRALIA

John Holland Group Pty Ltd v Robertson [2010] FCAFC 88

CORRIGENDUM

1.                  At paragraph 85 of the Reasons for Judgment of Logan J the following sentence should read “I was relieved from exploring further the deficiencies...” instead of “We were relieved from exploring further the deficiencies, …”.

2.                  At paragraph 120 of the Reasons for Judgment of Logan J the following sentence should read “Neither, like the parties do I consider that there is any …” instead of “Neither, like the parties do we consider that there is any …”.

Associate:

Dated:         27 July 2010

THE COURT ORDERS THAT:

1.                  The appeal is allowed.

2.                  The decision of the Administrative Appeals Tribunal dated 19 June 2009 is set aside.

3.                  The matter is remitted to the Administrative Appeals Tribunal for hearing and determination according to law in accordance with the reasons of the Court and on the footing that s 8(10)(b) of the Safety Rehabilitation and Compensation Act 1988 (Cth) has application to the Respondent’s circumstances, as found by the Administrative Appeals Tribunal.

4.                  The Respondent pay the Appellant’s costs of and incidental to the appeal to be taxed if not agreed.

5.                  The District Registrar furnish to the Respondent a certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), stating that,in the opinion of the Court, it would be appropriate for theAttorney-General to authorize a payment under this Act to theRespondent in respect of:

(a)        the costs incurred by the respondent in relation to the appeal; and

(b)        any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the Respondent to the Appellant in pursuance of an order of the Court, not being costs to which a costs certificate granted under s 7 of that Act  relates.

6.                  The District Registrar send a copy of that certificate to the proper officer within the Attorney-General’s Department.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

spender j:

1                                             I agree with Dowsett J and Logan J that the orders of the Administrative Appeals Tribunal must be set aside, and the matter remitted to the Administrative Appeals Tribunal for further consideration in accordance with law.

2                                             I agree with the reasons for judgment of Dowsett J.

Associate:

Dated:         15 July 2010

REASONS FOR JUDGMENT

DOWSETT J:

INTRODUCTION

3                                             I have read the reasons prepared by Logan J.  In general the facts appear sufficiently from those reasons.  For present purposes I need only summarize them.

4                                             The respondent (“Mr Robertson”) was employed on a building project in Gladstone (the “Gladstone Project’) and injured in the course of his employment on that project.  He appears to have been employed by John Holland Engineering Pty Ltd (“JHE”) rather than by the applicant (“John Holland”).  However it is accepted that any compensation payable in connection with his injury pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “Act”) is payable by John Holland.  Pursuant to ss 14 and 19 of the Act such compensation is to be calculated pursuant to the latter section.  Mr Robertson’s incapacity lasted from the date of his injury, 26 March 2007 until 7 August 2008 inclusive.  His employment would, in any event, have ceased on 15 September 2007.  This case addresses the basis for calculation of the amount payable for the period from 16 September 2007 to 7 August 2008 inclusive.

5                                             Mr Robertson was employed as a scaffolder/rigger/dogger.  The conditions of his employment were contained in a letter dated 13 July 2006 (the “letter of employment”).  Paragraph 2 provided that:

You will initially be located at the CQPA RG Tanna Coal Terminal Berth 4 Expansion Project Gladstone located in Queensland; however you may be required to travel to work at other locations from time to time.

6                                             Paragraph 7 provided that:

Your employment is for the period fro [sic] 13 July 2006, and will cease on the completion of the task assigned to you and agreed between you and [JHE] associated with the CQPA RG Tanna Coal Terminal Berth 4 Expansion Project.

7                                             Other provisions dealt with hours of work, rates of pay and overtime.  In particular, para 9 provided that:

Your hourly rate of pay will be $30.71.  Your conditions of employment are in accordance with the [JHE] RG Tanna Coal Terminal Expansion Project Certified Agreement 2005 (“the agreement”), but this does not form part of your contract of employment.

LEGISLATIVE HISTORY

8                                             The Act was originally enacted in 1988.  Its title was then the “Commonwealth Employees’ Rehabilitation and Compensation Act”.  The present name was adopted subsequently.  As originally enacted the Act provided for the payment of compensation to “employees”, defined in s 5 of the Act to mean persons “employed by the Commonwealth or by a Commonwealth authority”.  The term “Commonwealth authority” was fairly widely defined, but it is fair to say that such authorities all had some connection with government.  The effect was that at the time of its enactment the Act applied, broadly speaking, to Commonwealth employees or persons employed in corporations effectively under the control of the Commonwealth or a Territory.

9                                             In 1992, pursuant to the Commonwealth Employees’ Rehabilitation and Compensation Amendment Act 1992 (Cth) (the “1992 Act”) the Act was amended to provide for the licensing of eligible corporations.  These licensing provisions were then further amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (Cth) (the “2001 Act”).  The effect of such a licence is that the relevant licensee is authorized to accept liability to pay compensation in respect of injury to, or death of an employee.  Section 100 provides:

If the Minister is satisfied that it would be desirable for this Act to apply to employees of a corporation that:

(a)        is, but is about to cease to be, a Commonwealth authority; or

(b)        was previously a Commonwealth authority; or

(c)        is carrying on business in competition with a Commonwealth authority or with another corporation that was previously a Commonwealth authority;

the Minister may, by notice in writing, declare the corporation to be eligible to be granted a licence under this Part.

10                                          An eligible corporation presumably derives a financial benefit from such a licence.  Provisions of the Act were amended to reflect this extension of its operation.  However, in many cases, the amendments involved only the addition of the words “or a licensed corporation” after the words “the Commonwealth”.  Section 8(10) is of primary relevance in this case.  At the time of enactment it referred to an employee continuing to be employed by the Commonwealth, and to an employee who had ceased to be employed by the Commonwealth.  Section 8(10)(a) and the introductory words of s 8(10)(b) were amended in the way indicated above.  However, in paras (i) and (ii) of s 8(10)(b), the words inserted were “the licensed corporation”.  Use of the definite, rather than the indefinite article may be significant.  This history may be of some relevance in understanding why the Act is in its present form, even if it does not assist in construing it.

THE ACT

11                                          The relevant provisions for present purposes are in Part II of the Act.  Part II contains six divisions, namely:

Division 1 – Injuries, property loss or damage, medical expenses;

Division 2 – Injuries resulting in death;

Division 3 – Injuries resulting in incapacity for work;

Division 4 – Injuries resulting in impairment;

Division 5 – Household and attendant care services; and

Division 6 – Miscellaneous.

12                                          Division 3 is of primary importance for present purposes.  Section 14 provides:

(1)        Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

(2)        Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3)        Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

13                                          Section 19 relevantly provides:

(1)        This section applies to an employee who is incapacitated for work as a result of an injury other than an employee to whom section 20, 21, 21A or 22 applies. 

(2)        Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

NWE – AE

where

AE is the greater of the following amounts:

(a)        the amount per week (if any) that the employee is able to earn in suitable employment;

(b)        the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.

NWE is the amount of the employee’s normal weekly earnings. 

…

14                                          Although these sections oblige Comcare to pay compensation, a relevant licensee assumes that liability.  Comcare is accordingly exonerated.  See s 108A.

15                                          The term “maximum rate compensation week” is defined in s 19(2A).  It is sufficient to say that when taken in conjunction with ss 19(2)(c) and 19(2)(d), the effect is that an injured employee will receive compensation at the “maximum rate” for the first 45 weeks of his or her incapacity.  Thereafter, assuming continuing incapacity, compensation will be paid at a reduced rate in accordance with s 19(3).

16                                          The term “normal weekly earnings” (“NWE”) is defined in s 8 of the Act.  Logan J has set out the section in full.  Pursuant to s 8(1) the NWE is to be calculated using the formula:

(NH x RP) + A

where:

NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;

RP is the employee’s average hourly ordinary time rate of pay during that period; and

A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.

17                                          Section 8(2) provides for the inclusion in the NWE of overtime payments.  Other subsections of s 8 provide for further adjustments which are not presently relevant.  Pursuant to s 8(10):

If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections would exceed:

(a)        where the employee continues to be employed by the Commonwealth or a licensed corporation – the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or

(b)        where the employee has ceased to be employed by the Commonwealth or a licensed corporation – whichever is the greater of the following amounts:

(i)         the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;

(ii)        the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;

the amount so calculated shall be reduced by the amount of the excess.

18                                          Clearly, s 8(10) is designed to reduce the amount of the NWE in certain circumstances.  The effect of such reduction will be a reduction in the amount of compensation payable pursuant to s 19.  The use of the indefinite article in the phrase “a licensed corporation” in s 8(10)(a) might suggest that the phrase includes employment by a corporation other than the employer at the time of injury.  The words “continues” and “had continued” may suggest otherwise.  As I have previously observed, whilst the indefinite article is used in the introductory words to s 8(10)(b), the definite article is used in ss 8(10)(b)(i) and 8(10)(b)(ii).

19                                          Section 8(10) differentiates between employees who continue to be employed by the Commonwealth or a licensed corporation (to whom s 8(10)(a) applies) and employees who have ceased to be so employed (to whom s 8(10)(b) applies).  However the section does not expressly identify the point in time at which a relevant employee’s employment status is to be determined.  The compensation payable pursuant to s 19 is weekly compensation, being the amount of the NWE less the amount which the employee earns in the week for which he or she is to be compensated, or the amount which he or she is capable of earning in suitable employment.  I infer that s 8(10) is to operate according to the circumstances which obtain in each week in respect of which compensation is otherwise payable.  In Bortolazzo v Comcare (1997) 75 FCR 385 at 388, Heerey J took that approach.

20                                          The amounts identified in ss 8(10)(a) and (b) are hypothetical amounts.  In s 8(10)(a) the identified amount is the amount of weekly earnings which the employee “would receive if he or she were not incapacitated for work”.  In the context of s 8(10) this provision contemplates the possibility that the employee, even if not injured, may, in the week in question, have received less than his or her NWE as otherwise calculated.  Section 8(10)(b) prescribes reduction of that figure by the difference between it and the greater of two other amounts.  The first amount is the weekly earnings which the employee would have received if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury.  The second amount is the amount which the employee would have received if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which employment by the Commonwealth or the licensed corporation ceased.

21                                          Section 8(10), in more or less its present form, has been in the Act since its initial enactment.  In the Second Reading Speech, the relevant Minister said (Parliamentary Debates, House of Representatives, 2192):

The level of weekly benefits payable to an injured employee who is capable of returning to work will be calculated by subtracting the amount the employee is earning, or would be able to earn in suitable employment, from his or her normal weekly earnings.  Suitable employment for an employee who is permanently employed by the Commonwealth will mean employment by the Commonwealth or a statutory authority.  In the case of a casual employee, suitable employment may include self employment or employment in private industry.  This distinction reflects the government’s commitment to maintaining the employer/employee relationship and reinforces the nexus between an employee’s contract of employment and his or her rights to compensation.

22                                          As I have observed, the Act was, at that time, to apply only to Commonwealth employees and the employees of some governmental corporations.  This passage seems to suggest that s 8(10)(a) was generally to apply to permanent Commonwealth employees whilst s 8(10)(b) was generally to apply to temporary Commonwealth employees. 

THE DECISIONS UNDER REVIEW

23                                          For present purposes two relevant decisions were made pursuant to the Act.  The first decision is explained in a letter dated 2 November 2007.  It seems that Mr Robertson’s NWE had previously been fixed at $2,572.57, and that compensation calculated on that basis was paid until 15 September 2007 when the Gladstone project was completed.  Initially, Mr Robertson’s NWE was then reduced to $1,182.50.  This reduction reflected a notional reduction in overtime and allowances resulting from the completion of the project.  Mr Robertson sought internal review of that decision.  He argued that had he not been injured, he would have sought and obtained work on another John Holland project on similarly favourable conditions to those prevailing on the Gladstone project.  The reviewer accepted that submission to the extent that Mr Robertson’s NWE was increased to $1,820.26 as from 16 September 2007.  That figure was based upon earnings of riggers on another John Holland project described as the “Rail Link” project.  Mr Robertson sought review of that decision in the Administrative Appeals Tribunal (the “Tribunal”).

24                                          The second decision is explained in a letter dated 7 August 2008.  It seems that on 8 July 2008 the Mr Robertson’s NWE was again reduced to $1,182.50 with effect from 13 July 2008.  The decision was apparently based on the fact that employees on the Rail Link project were no longer working overtime.  At that time, it was also decided that from 8 August 2008, Mr Robertson would no longer be incapacitated for work as a result of his injury.  Mr Robertson sought review of these decisions.  The reviewer concluded that had Mr Robertson not been injured, he would probably not have been employed by John Holland after 1 April 2008.  The determination was varied accordingly so that the reduction in NWE took effect from 1 April 2008 rather than 13 July 2008, an outcome less favourable to Mr Robertson than the original decision.  The reviewer affirmed the determination that his incapacity would cease from 8 August 2008.  Mr Robertson again sought review in the Tribunal.  By way of completeness, I should add that by this time Mr Robertson had been receiving compensation for 45 weeks, and so his NWE was further reduced pursuant to s 19(3).

THE TRIBUNAL’S DECISION

25                                          At some stage, the parties were in dispute as to whether Mr Robertson’s employment had ceased.  However I understand it now to be common ground that the Gladstone Project was completed on 15 September 2007, and that his employment ceased on that date.  It is also accepted that that Mr Robertson ceased to be incapacitated for work from 8 August 2008.  This appeal is concerned only with the basis upon which compensation should be calculated for the period from 16 September 2007 to 7 August 2008 inclusive.

26                                          In the Tribunal, John Holland submitted that Mr Robertson had continued to be employed throughout the whole period so that s 8(10)(a) applied.  Mr Robertson submitted that s 8(10) did not apply at all because termination at the end of a particular project was not contemplated by the Act.  He also submitted that if s 8(10) applied at all, then s 8(10)(b) was to be applied as if his employment had ceased upon the completion of the Gladstone project.  The Tribunal observed that no “overt act of the parties” had effected termination of his contract of employment.  However it concluded that, having regard to the terms of the letter of employment, Mr Robertson’s employment ceased on 15 September 2007 when the Gladstone project was effectively completed.  As I have observed, this matter is no longer in dispute.  The Tribunal then accepted Mr Robertson’s submission that as s 8(10) did not expressly contemplate a situation in which the employment of a relevant employee was terminated upon completion of a project, s 8(10) was not engaged.  This conclusion was said to be consistent with the decision of Greenwood J in Comcare v Burgess (2007) 164 FCR 66.  At paras 33 to 35, the Tribunal concluded that:

33        It is, I think, preferable to construe s 8(10) of the Act as being confined to situations where it is possible to say that an injured employee could have continued to be employed by the Commonwealth or a licensed corporation.  Viewed that way the subsection operates to reduce the entitlement to compensation in line with the reality of the fact of continued employment.  Thus adjustments may be made where shift allowances are no longer being paid or a work restructure brings about a substantial alteration to entitlement.  Those cases are ones where it is possible to undertake a calculation of the earnings that the employee would receive if not incapacitated, or would have received had the employment at the time of injury continued.  But the subsection has no application to a situation where it was not contemplated that the employment at the time of injury would continue nor possible for that employment to continue.  As Greenwood J observes in Burgess, the continuity of employment contemplated by s 8(10)(a) of the Act is “continuity of service and receipt of earnings, not simply a subsisting employer/employee relationship”.  Similarly, in my opinion, s 8(10)(b) of the Act contemplates the possibility of the continuity of service and receipt of earnings in the employment in which the employee had been engaged at the time of the injury. 

34        I would add that no different result would flow had Mr Robertson continued to be employed by [JHE] during the period in issue here.

35.       In these circumstances I conclude that section 8(10) of the Act had no application to Mr Robertson’s circumstances and that [John Holland] was wrong to reduce his normal weekly earnings.  It is unnecessary to consider Mr Robertson’s alternative arguments based upon the applicability of s 8(10) of the Act.

27                                          The Tribunal remitted the matter to the original decision-maker “for reconsideration with a direction that section 8(10) of [the Act] has no application to [Mr Robertson’s] circumstances.”  This seems to have meant that Mr Robertson’s NWE should be calculated pursuant to s 8, without reference to s 8(10).  

THE APPEAL

28                                          From that decision John Holland appeals.  Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), any appeal must be on a question of law.  The grounds of appeal are as follows:

4.1       The Tribunal erred in law in holding that subsection 8(10)(b) of the [Act] contemplates a situation where it is possible to postulate a continuation of the precise employment project on which the Respondent was engaged at the time of injury.

4.2       The Tribunal erred in law in ruling that no different result would flow had the Respondent continued to be employed by the Applicant in the relevant period.

4.3       The Tribunal erred in law in ruling that subsection 8(10)(b) was not intended to have any application in the circumstances described in paragraph 2.1 above.

4.4       The Tribunal erred in law in finding that simply because the [Gladstone project] had come to an end on 15 September 2007 it was neither contemplated nor possible for the applicant’s employment, within the meaning of subparagraphs 8(1)(b)(i) and (ii) to continue.

4.5       The Tribunal erred in law in failing to apply subsection 8(10)(b) so as to take into account (i) the likelihood of the Respondent being re-engaged by the Applicant as a scaffolder/rigger/dogger on other projects after completion of the [Gladstone project]; and (ii) the earnings of other comparable employees (“scaffolders/riggers/doggers”) who commenced employment in that capacity with the Applicant on other projects, after completion of the [Gladstone project].

4.6       The Tribunal erred in law in interpreting the words of the “employment in which he or she was engaged” in sub-paragraphs 8(10)(b)(i) and (ii) as meaning, in the Respondent’s case, not his general employment as a scaffolder/rigger/dogger but his employment in that capacity on the [Gladstone project].

29                                          The “questions of law” are identified in para 2 as follows:

2.1       Does s 8(10)(b) of the [Act] have any application to the Respondent’s circumstances in the period between 15 September 2007 to 7 August 2008, in light of the following:

2.1.1     the Respondent was employed by the Applicant as a scaffolder/rigger/dogger until completion of the [Gladstone project];

2.1.2     the [Gladstone project] came to an end on 15 September 2007, whereby the Respondent’s contract of employment with the Applicant came to an end;

2.1.3     the likelihood that, had the Respondent not been incapacitated as a result of his injury, he would thereafter have been engaged by the Applicant as a “scaffolder/rigger/dogger” on subsequent projects, earning different amounts of overtime to those earned by him whilst engaged on the [Gladstone project]?

2.2       whether the Tribunal erred in law in ruling that simply because the [Gladstone project] had come to an end on 15 September 2007, it was neither contemplated nor possible for the applicant’s employment within the meaning of subparagraphs 8(10)(b)(i) and (ii) of the [Act] to continue?

2.3       whether subparagraphs 8(10)(b)(i) and (ii) of the [Act] operate by reference to the general kind of classification of employment or employment on precisely the same terms and conditions as existed at the relevant time?

2.4       the application and operation of subsection 8(10)(b) of the [Act].

30                                          The questions in paras 2.1 and 2.3, if answered “yes”, would offer no guidance as to how s 8(10)(b) might apply to the “Respondent’s circumstances”.  The question in para 2.2 appears to raise a question of fact, although there may be associated questions of construction.  The purpose of para 2.4 is beyond my understanding.  To some extent these questions invite an advisory opinion rather than a legal determination which will quell a dispute.  Such deficiency may be the product of the Tribunal’s surprising conclusion that s 8(10) has no application to Mr Robertson’s case.  One would have thought that Mr Robertson was either employed by JHE at any relevant date, or he was not.  Notwithstanding the apparent agreement by the parties that there is a question of law for determination, the existence of such a question is, as Logan J has pointed out, not merely a matter going to jurisdiction.  Such question constitutes the very subject matter of the proceedings.  The parties cannot confer jurisdiction by agreement.  I will consider whether there is a question of law for determination after I have considered the substance of the case.

JOHN HOLLAND’S SUBMISSIONS

31                                          In its outline of submissions, John Holland identifies two points as arising in the course of this appeal, namely:

1.1       the first, and overarching, question is whether subsection 8(10) of the Act can apply in circumstances where, in accordance with the terms of the contract of employment, a fixed term employee’s employment comes to an end as a result of completion of the specific project for which the employee was engaged?

1.2       the second (albeit subsidiary) question is whether the expression “the employment in which he or she is engaged” in subparagraphs 8(10)(b)(i) and (ii) means, in the Respondent’s case:

-           the exact same employment, on the same terms and conditions, as existed at the relevant times i.e. employment as a scaffolder/rigger/dogger on, and until completion of, the [Gladstone project); or

-           the general kind or classification of employment at the relevant times (ie employment as a scaffolder/rigger/dogger)?

32                                          The submissions continue:

In relation to this second issue, the Tribunal accepted the correctness of the first of the two alternative answers.  On that basis, the Tribunal held that subsection 8(10) has no application to the Respondent’s circumstances because “there could not have been continuation of that employment” … . 

33                                          John Holland submits that the fact that an employee’s employment has been terminated upon the conclusion of a particular project does not lead to the conclusion that s 8(10) cannot apply in calculating the employee’s entitlement to compensation.  It further submits that numerous decisions establish that the hypothesis prescribed by s 8(10)(b)(i) is that the employee’s employment continues, such employment being “in the same occupation and at the same level” as he or she was employed at the time of the injury, that is, in this case, as a scaffolder/rigger/dogger, and not as a scaffolder/rigger/dogger employed on the Gladstone project. 

MR ROBERTSON’S SUBMISSIONS

34                                          Mr Robertson submits that in the circumstances of this case, the amount calculated pursuant to s 8(10)(b) will be the same, regardless of which of the two subparagraphs is used in the calculation.  He submits that the Tribunal found that his employment remained unchanged, from the time of his injury to the date when he ceased to be employed.  The terms of such employment were as evidenced by the letter of employment.  Mr Robertson seems to adopt the Tribunal’s view that s 8(10) does not apply at all because of the occurrence of an event which was not anticipated by the Act, namely the termination of his employment at the time at which the Gladstone project finished.  However, at the same time, he submits that s 8(10)(b) operates as outlined above.

SUBMISSIONS IN REPLY

35                                          In reply John Holland proposes two possible “questions of law”, namely:

(a)        Is s.8(10)(b) of the Act incapable of any application simply because, in accordance with the terms of employment, an employee’s contract of  employment comes to an end as a result of the completion of the project for which that employee had been engaged;

(b)        In its application to an employee who is engaged under a contract of employment to perform particular work for the duration of a specified project, is the expression “employment in which he or she was engaged” in s.8(10)(b) of the Act limited to employment on the specified project.

Both questions are so general as to be difficult to address.

THE CASES

36                                          John Holland refers to a number of decisions which, it says, support its approach to the case.  In particular it relies upon the decision of Heerey J in Bortolazzo to which I have already referred.  The case concerned s 8(10)(a).  Two employees were injured in the course of their employment at an Army mess at Puckapunyal.  Their employment involved the performance of substantial amounts of overtime.  Subsequent to their being injured the Department of Defence entered into a contract with a commercial undertaking for the operation of the mess.  Although the two employees continued to work at the mess, their terms of employment were substantially changed.  In particular, various penalty allowances and overtime payments were no longer available.  The question was whether the injured employees’ NWEs were to be reduced to reflect these changes.  At 388 his Honour said:

The provision of compensation is to operate from week to week: see for example, the detailed formulae in s 19.  The underlying policy is that an injured employee should not be worse off during the period of incapacity as the result of work-related injury.  However, it follows conversely that the injured employee should not be better off.

37                                          As a matter of common sense the observation in the last sentence may be reasonable enough.  However it should not be taken as offering a guide to the way in which the legislation is to be construed.  It is rather an inference based upon such construction.  His Honour appears to have accepted that for the purposes of s 8(10)(a), the employees’ NWEs were to be reduced so as to reflect the changed employment conditions.  In Comcare Australia v Pires (2005) 143 FCR 104, Jacobson J, perhaps somewhat guardedly, adopted that observation by Heerey J in Bortolazzo.  Pires was concerned with the inter-relationship between ss 8(1) and 8(2).

38                                          I have previously referred to the decision of Greenwood J in Burgess.  In that case the relevant employee (Ms Burgess) suffered from a work-related depressive disorder for which she was being compensated pursuant to the Act.  Whilst she was receiving such compensation she was suspended from her employment without pay.  Comcare reduced her NWE to zero, purportedly acting pursuant to s 8(10)(a).  The result was that no compensation was payable pursuant to s 19.  The Tribunal set aside Comcare’s decision.  Comcare appealed.  On appeal two “questions of law” were identified, namely:

(a)        whether the reference in section 8(10)(a) of the [Act] to “the amount per week of the earnings that the employee would receive” includes an amount of zero; and

(b)        whether the effect of section 8(10)(a) is that, in a case where an employee suffering an incapacity for work as a result of an injury has been suspended from her employment without pay, that employee/employee’s “normal weekly earnings” calculated under the preceding subsections of section 8 must be reduced to zero.

39                                          Comcare’s submissions reflected the reasoning which led to its decision, focussing upon the operation of s 8(10)(a) where the employee is not receiving any earnings from his or her “employment”.  Counsel for Ms Burgess submitted that:

… (T)he subsection contemplates a contract of service – an employment contract between the Commonwealth and Ms Burgess, and assumes that Ms Burgess is receiving an amount per week by way of earnings as an incident of that employment.  Since Ms Burgess is suspended from employment without pay she cannot receive any amount per week of the earnings referable to the contract.  Since there are no earnings referable to the contract, the assumption fails and the subsection has no role to play because its foundation fails.  It therefore cannot operate to effect the reduction of the normal weekly earnings for the purposes of the formula contemplated by s 19(3) of the [Act].

40                                          At [24] his Honour summarized the argument on behalf of Ms Burgess as follows:

In other words, the subsection does not comprehend within its terms a circumstance where the employee “continues to be employed by the Commonwealth” but is suspended from that employment without pay.  The subsection assumes continuity of employment and the receipt of earnings and therefore a continuity of performance of the contract.

41                                          In dealing with that argument his Honour observed (at [25]-[27]):

25        It seems to me that s 8(10)(a) contemplates a circumstance in which an employee (that is, relevantly here, “a person who is employed by the Commonwealth”, s 5(1) of the [Act]) continues to be employed by the Commonwealth” in the sense that such a person continues to provide service to the Commonwealth and correspondingly continues to receive earnings from the Commonwealth.  In those circumstances, s 8(10)(a) seeks to compare the normal weekly earnings (as determined) with the quantum of those corresponding earnings and reduce the normal weekly earnings for the purposes of the s 19(3) formula by the amount of the excess.

26        Had the legislature intended that suspension of employment would bring about a reduction of normal weekly earnings to nil for the purposes of the formula quantifying the amount of weekly compensation under s 19(3) during a period of incapacity for work, the legislature would have expressly provided for that result.  It did not do so.  Although Ms Burgess continues to be employed by the Commonwealth in the sense that the contract of employment is “on foot” and employment has not been terminated nor “ceased” (see s 8(10)(b)), the continuity of employment contemplated by s 8(10)(a) is continuity of provision of service and receipt of earnings not simply a subsisting employer/employee relationship.  A suspension of employment is not an event contemplated by the section as an element of its operation or purpose.  Its purpose is to strike a comparison of pre-injury normal weekly earnings (otherwise determined by the earlier subsections of s 8) with continuity of earnings that would have been received based upon Ms Burgess’s provision of services and receipt of earnings.

27        Accordingly, having regard to the express terms of the [Act], s 8(10)(a) does not operate so as to effect a reduction in normal weekly earnings otherwise determined in accordance with the earlier subsections of s 8 of the [Act], for the purposes of the formula contemplated by s 19(3).

42                                          I have previously pointed out the difficulty in an approach to s 8(10) which contemplates the possibility that in certain circumstances, it may not be engaged.  In my view an injured employee must either continue to be relevantly employed or not.  Either s 8(10)(a) or s 8(10)(b) must apply.  An alternative approach to the circumstances which arose in Burgess might be to ask whether a suspended employee continues to be employed for the purposes of s 8(10).  It may be that if he or she is not performing duties, and not receiving remuneration, he or she is no longer “employed” for the purposes of that section.  If suspension does not terminate employment in the relevant sense, then s 8(10)(a) will apply.  The decision-maker may then have to enquire as to whether, in the event that the incapacity had not occurred, the employee would have been suspended.  Such enquiry would be part of a broader enquiry as to the employee’s earnings had he or she not been incapacitated.  If the suspension has the effect of terminating the employee’s “employment” for the purposes of s 8(10), then s 8(10)(b) will apply.  The decision-maker will then have to make the enquiries contemplated by ss 8(10)(b)(i) and 8(10)(b)(ii).  For present purposes, I need not consider the effect of a suspension upon employment for the purposes of s 8(10).  In this case s 8(10)(b) clearly applies.

43                                          Because of the way in which the questions were framed in Burgess, no consideration was given to the meaning of the terms “employed” and “employment” in s 8(10) or, surprisingly, to the operation of s 8(10)(b).  At [26] his Honour assumed that Ms Burgess “continues to be employed by the Commonwealth in the sense that the contract of employment is ‘on foot’ and employment has not been terminated nor ‘ceased’ … .”  His Honour then observed that “… the continuity of employment contemplated by s 8(10)(a) is continuity of provision of service and receipt of earnings not simply a subsisting employer/employee relationship.”  In my view, if that observation is correct, then the assumption may be invalid, at least for the purposes of s 8(10).  The question invites consideration of the meaning of the words “employed” and “employment”.

44                                          Two cases of interest involve service in Antarctica.  The first is the decision in Richards v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees [1993] AATA 164.  In that case the applicant was employed as a carpenter by the Antarctic Group of Australian Construction Services for a period commencing on 30 September 1991 and ending on 31 March 1992.  He had previously been employed by a private employer from whom he obtained leave without pay to take up the Commonwealth position.  His contract provided for a weekly wage of $458.18 whilst he was in Australia.  Whilst on service in the Antarctic he was entitled to certain additional allowances which effectively doubled his earnings.  Such allowances were payable pursuant to a Public Service Board determination.  That determination defined the period of Antarctic duty as commencing on the day of embarkation at a port specified in the itinerary for the expedition and ending on the day of disembarkation at a similarly specified port.  Mr Richards left Australia on 30 October 1991 to take up duties in the Antarctic.  On 9 February 1992, in the course of his duties, he fell and was severely injured.  He was repatriated to Australia on 8 March 1992.  He did not return to work prior to the expiry of his contract on 31 March 1992.  His incapacity continued thereafter. 

45                                          For the period until 30 March 1992 the decision-maker calculated the employee’s NWE pursuant to s 8(10)(a) by reference to his Antarctic earnings.  On that date his service in the Antarctic would normally have ended.  His overall employment was to terminate on 31 March 1992.  For 31 March 1992 his NWE was calculated pursuant to s 8(10)(a) at the rate payable for non-Antarctic service.  For his subsequent period of incapacity, Mr Richards’ NWE was calculated pursuant to s 8(10)(b).  Although it is not absolutely clear, it seems that the calculation pursuant to s 8(10)(b)(i) was based on the amount payable to him as a carpenter graded according to a classification system used for Commonwealth employees.  The amount calculated pursuant to s 8(10)(b)(ii) would presumably have been the same amount.

46                                          There was a certain amount of evidence as to Antarctic service.  In particular at paras 12 and 13 the deputy president said:

12        Service in Australia’s Antarctic bases is either for the summer (approximately October to March) or for the winter and part of the summer periods on either side.  Expeditioners spend some time in Australia prior to departure on training and team bonding.  At the end of an expedition, most expeditioners end their contracts or return to Australia, although the end of a contract may also depend on shipping schedules.  By a long-standing policy going back to the first expeditions in the late 1940s, expedition members do not spend more than one season in Antarctica.  This is largely because of the effects of isolation in an extreme climate, but also because expedition members each year must bond together.

13        The maximum period that a person could spend in Antarctica is approximately 15 months, consisting of one winter season and two months or so of the summer season at each end.  No person has spent more than 18 months in Antarctica at a stretch in the history of the current administrators – Australian National Antarctic Research Expedition.  Two summers and one winter would be the absolute maximum.  Occasionally a person has spent two consecutive winters but they have returned to Australia during the intervening summer.  As well, this has only occurred in situations of dire emergency where nobody else is available to fulfil those particular duties and the expedition cannot function without them.  A good example would be the station doctor who could not be replaced.  Occasionally a person employed for a summer season may stay on for the following winter to fill an unexpected winter vacancy.

47                                          At [16] the deputy president continued:

To determine this question it is necessary to decide the correct meaning to be given to the words “in the employment in which he or she is engaged at the date of the injury”.  The applicant’s contention necessarily requires a finding that “employment” means “duties” in this context.  It is certainly used with that meaning elsewhere in the Act. 

48                                          The deputy president then examined various provisions of the Act, concluding that “… it would be particularly unsafe to attribute any meaning to the word ‘employment’ in sub-section 8(10) by reference to the use of the word elsewhere in the statute.”  At [21] the deputy president continued:

“Employment” is not defined in the Act and is not consistently used throughout the Act.  In the context of subs 8(10) however, it must mean the general duties or classification rather than the precise and specific duties of job.  It must mean the general duties or classification of a GSO6 carpenter which the applicant was before and after the Antarctic interval, rather than a GSO6 carpenter employed on special duties in Antarctica.

49                                          The reasoning leading to this conclusion appears in paras 17 and 20.  At para 17 the deputy president said:

The interpretation for which the applicant contends would result in an anomaly which may be illustrated by a hypothetical case of 2 carpenters employed on identical duties at identical salaries in Antarctica and injured in identical ways.  If the first is a permanent GSO carpenter seconded to Antarctica, for the season, his compensation is determined by subs 8(10)(a) and would be his normal earnings as a GSO6 shorn of the Antarctica allowance.  A contract carpenter would not be in the same position as the GSO carpenter.  His normal weekly earnings would be calculated by reference to para (b).  On the applicant’s contention this would mean that the permanent employee would receive barely half of the compensation received by the temporary employee, yet their salaries and injuries would be identical. 

50                                          At para 20 the deputy president continued:

Section 8 should be read in such a way that the purpose and object of the Act will be served.  The reading for which the applicant contends would be inimical to such a result.  In the circumstances of this case, the applicant could not have had legitimate expectations of future awards of the size and nature of those being paid to him during his period of Antarctic service.  His employment would have expired in March 1992.  There is no evidence of a persuasive nature that employment in this area would have continued.  The general evidence to the contrary must be accepted.  In any event, it is not seriously contended by the applicant that even if his Antarctic contract had been renewed, he would have been entitled to be employed in that area and to be paid at the higher rate indefinitely.

51                                          As to the “hypothetical case”, the Act, at that time, applied generally to Commonwealth employees.  Antarctic service was apparently quite exceptional.  Use of a hypothetical case to inform a decision as to the application of general legislation in exceptional circumstances may well be unhelpful.  As to the employee’s “legitimate expectations” the argument seems to be that s 8(10) must be construed so as to avoid a “windfall”.  Such an argument gives little weight to the fact that Mr Richards had demonstrated a capacity for obtaining and performing employment in conditions which were apparently quite unusual, and so maximizing use of his capacity to earn income.  The same may be said of Mr Robertson.  An employee who has demonstrated the capacity and inclination to maximize the use of his or her earning capacity by accepting unusual requirements or conditions may reasonably expect, and be expected, to continue to do so.  The Act does not purport to identify the likely future earnings of an injured employee had he or she not been injured.  It rather makes assumptions about subsequent employment and directs that calculations be carried out accordingly.  The concept of “windfall” contemplates there being a “correct” level of compensation against which the outcomes produced by different constructions of the Act may be measured.  Such an approach is logically flawed.  It is the construction of the Act which fixes the intended level of compensation.  There is no other standard against which a particular outcome can be compared. 

52                                          The second Antarctic case is Re Spurr and Comcare (1999) 28 AAR 424, a decision of Deputy President Blow, as his Honour then was.  The employee took leave from private employment to work in Antarctica as a plumber during the 1996/1997 summer.  He commenced employment in Hobart on 9 September 1996 and, after induction and other training, sailed for Antarctica on 27 September 1996.  Whilst away from Tasmania his gross weekly earnings included various allowances similar to those identified in Richards.  On 11 February 1997 he suffered an ankle injury and, on 29 March 1997, returned to Australia, ceasing employment with the Commonwealth on that day.  There is no reference in the report, as far as I can see, to the date upon which his employment would otherwise have ceased.  Comcare determined that for the period from 1 September 1997 until 31 October 1997 Mr Spurr’s compensation should be $691.72 per week, representing a plumber’s wage in Tasmania at his level of employment, described as “GSO6”.  He applied to the Tribunal for review of that decision.  In the Tribunal it was common ground that but for his injury, he would have returned to Antarctica as a plumber for the 1997/1998 summer, receiving the relevant allowances from 24 September 1997.  The matter in dispute was the effect of s 8(10) upon his NWE for the period from 1 September 1997 to 23 September 1997.  Mr Spurr contended that his compensation should have been calculated using an NWE which reflected his likely earnings had he been in Antarctica or alternatively, by reference to the earnings which he would have received in private employment.  The latter proposition was effectively dismissed by the deputy president and need not be further considered. 

53                                          At p 427 the deputy president observed that, “The effect of s 8(10) is to place a cap on the amount of an employee’s ‘normal weekly earnings’ in certain situations.  Because the applicant ceased to be employed by the Commonwealth on 29 March 1997, s 8(10)(b) is applicable.”  At 428 the deputy president continued, after referring to the observation by Heerey J in Bortolazzo cited above:

The clear purpose of s 8(10) is to prevent the injured employee from being better off as the result of being incapacitated.  As Parliament sought to achieve that purpose by enacting a provision requiring only a comparison with hypothetical earnings as an employee of the Commonwealth, and not requiring the actual or estimated earnings that an employee who would have moved to the private sector would have received, Parliament adopted a regime that was less than perfect, but perhaps had the advantage of administrative simplicity.  Given underlying purpose of the relevant provision as explained by Heerey J, I believe that s 8(10)(b) requires the decision-maker, in assuming that an employee would have continued to be employed by the Commonwealth in the employment in which that employee was engaged, first to assume that the employee would have continued in the same occupation and at the same level, and then consider what circumstances resulting in the payment of allowances, overtime or the like would have existed from time to time.  As this case well illustrates, making the additional assumption that the employee’s duties would have remained unchanged could have an absurd and obviously unintended result.

54                                          At 429 the deputy president concluded:

I think the proper way to apply s 8(10)(b) to the facts of this case involves assuming that the applicant would have continued in employment with the Commonwealth as a plumber at GSO6 level, and assuming that he would have been paid the allowances appropriate to an Antarctic expeditioner only during periods when, but for his injury, [he] would have in fact been an Antarctic expeditioner.

55                                          This line of reasoning appears to contain three weaknesses.  First, it treats the observation by Heerey J that “it follows conversely that the injured employee should not be better off” as, in effect, a guiding canon for construction of the section.  In my view his Honour’s comment was an inference based on such construction.  Secondly, for reasons given above, the fear of a “windfall” is misconceived.  The third weakness is the assertion that s 8(10)(b) requires the decision-maker to assume that the employee would have continued “in the same occupation and at the same level”.  This assertion merely replaces the word “employment” in the Act with the words “the same occupation and the same level”.  No justification is offered for such substitution.  It may possibly reflect the course adopted in Richards.  I have already expressed my doubts as to the reasoning in that case. 

56                                          Of these cases, Bortolazzo and Burgess concern s 8(10)(a) and not s 8(10)(b).  In other words those cases involved continuing employment by the Commonwealth.  Both Richards and Spurr concerned situations in which the relevant employment arrangements involved periods of service in Antarctica and elsewhere.  Mr Richards was, prior to his Antarctic service, employed by the relevant authority at a lower rate of pay.  It was always contemplated that he would return to Australia on 30 March 1992 and that his employment would terminate on the following day for which day he was presumably to be paid at the lower rate.  Thus his employment contract expressly contemplated service in two locations at different rates.  The circumstances in Spurr seem to have been similar to those in Richards save that Mr Spurr’s employment terminated on the day that he returned from Australia.  As I have observed, the report does not disclose the date when his employment would otherwise have terminated.  However it was common ground that he would have returned to Antarctica for the 1997/1998 summer, and he was compensated for that period accordingly. 

57                                          At p 427 the deputy president observed that his notional earnings pursuant to s 8(10)(b)(i) would be the same as his notional earnings pursuant to s 8(10)(b)(ii), presumably because his employment at the time of injury was the same as his employment at the time of ceasing employment with the Commonwealth.  As it was agreed that he was entitled to remuneration at Antarctic rates for a subsequent period when, had he not been injured, he would have returned to Antarctica, it seems that the case was conducted upon the basis that his contract of employment, providing for service in Antarctica and in Australia, was notionally extended, and that the choice of the GSO6 level for calculating his notional earnings whilst in Australia was pursuant to that contract.

58                                          It may be that the same situation arose in Richards.  In that case the employee’s NWE for the period after the conclusion of his Antarctic service was calculated at $459.18, one dollar more than the amount payable to him whilst in Hobart prior to his going to Antarctica.  The post Antarctic figure was later increased to include certain industrial allowances.  The report does not indicate whether Mr Richards had received such allowances whilst in Hobart prior to travelling the Antarctic.

THE WORDS “EMPLOYED” AND “EMPLOYMENT” IN S 8(10)

59                                          According to the New Shorter Oxford English Dictionary, the word “employment” means:

1 The action of employing; the state of being employed.  … .  b The service of another person.  …  2 Occupation, business; paid work; an activity in which a person is engaged; … b a person’s trade, profession, or occupation. … 3 The use or purpose to which something is put.

60                                          The Oxford English Dictionary (2nd ed), defines the term as follows:

1.a. The action or process of employing; the state of being employed.

b. The service (of a person). Phrase, at your employment. (Obs.)

2.a. That on which (one) is employed; business; occupation; a special errand or commission.

…

b. The use or purpose to which a thing is devoted.  Obs.

c. A person’s regular occupation or business; a trade or profession.

…

61                                          The Macquarie Dictionary (4th ed) defines the word as follows:

1. the act of employing. 2. the state of being employed; employ; service: …  3. that on which one is employed, work; occupation; business.

62                                          The Shorter Oxford Dictionary (6th ed) defines the term “employ” as a verb to mean:

1 Use for a particular purpose, make use of. … 2 … 3 Use or retain the services of (a person), esp. in return for payment; pay (a person) to work for oneself or one’s organization. 4 Keep (a person, a person’s senses or powers) occupied or busy; in pass., be engaged in, be at work on (also foll. by about) … .

63                                          The Oxford English Dictionary defines the word “employ” as a verb as follows:

1. To apply (a thing) to some definite purpose; to use as a means or instrument, or as material. …

b. To apply, devote (effort, thought, etc.) to an object. …

c. To make use of (time, opportunities). …

2. …

3. To use the services of (a person) in a professional capacity, or in the transaction of some special business; to have or maintain (persons) in one’s service.

b. To send …

4. To find work or occupation for (a person, his bodily or mental powers); in pass. often merely to be occupied, to be at work. …

b. … To apply (obs.), busy, or occupy oneself.

c. Said of the object to which attention is given.

64                                          The Macquarie Dictionary defines the word “employ” as:

1. to use the services of (a person);  have or keep in one’s service; keep busy or at work: … 2. to make use of (an instrument, means, etc.); use; apply. 3. to occupy or devote (time, energies, etc.) …

65                                          Three shades of meaning may be relevant for present purposes.  The first is the act of employing or the state of being employed.  This usage contemplates the use by somebody of somebody or something.  The second shade of meaning focuses on that which is actually being done, namely the employee’s actual duties.  The third shade of meaning focuses on the trade or calling of the employee, or the category of employees of which he or she may be a member.

66                                          In Richards the deputy president referred to various sections of the Act in which the word “employment” appears, seeking to identify any consistency of usage.  He concluded that it would be unwise to assume that the word is used in the Act with a consistent meaning.  However, in my view, guidance is to be found in other sections of the Act.  In s 4 the term “place of work” is defined as including “any place at which an employee is required to attend for the purpose of carrying out the duties of his or her employment”.  This definition suggests that the term “employment” encompasses the duties which an employee is engaged to perform.  The term “injury” is defined in s 5A.  The word means, inter alia, “an injury suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment”.  A similar formula is used in defining “aggravation” of an injury and, in s 5B, in defining the term “disease”.  If the Act contemplates a connection between an injury or disease and the employee’s employment, then it must be possible to determine the ambit of such employment, and whether the circumstances in which the injury arose were within that ambit.  This suggests a focus on what was done rather than upon trade, calling or any system of classification.

67                                          Section 6 extends the circumstances in which, for the purposes of the Act, an injury is to be treated as arising out of, or in the course of, an employee’s employment.  Injuries will be so treated if incurred: 

•                      as the result of an act of violence which would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of such employment;

•                      whilst the employee is at his or her place of work for the purposes of his or her employment;

•                      whilst the employee is temporarily absent from the place of work undertaking an activity associated with such employment or at the direction or request of the employer;

•                      whilst the employee is travelling at the direction or request of the employer for the purposes of his or her employment;

•                      whilst the employee is at a place of education in accordance with a condition of his or her employment, or at the request or direction of the employer; and

•                     whilst the employee is travelling between workplaces.

  68                                          These provisions suggest that:

•                     an injury for which compensation is payable must arise out of, or in the course of the employee’s employment, meaning performance of his or her duties;

•                     it must be possible to identify the scope of such employment so that decisions can be made as to whether a relevant injury arose out of, or in the course of such employment, including injuries arising in the special circumstances identified in s 6; and

•                     in certain circumstances it must be possible to identify whether particular conduct was “for the purposes of” the relevant employment. 

  69                                          In s 4 the term “suitable employment” is defined in connection with an incapacitated employee.  It refers to “employment … in work for which the employee is suited … ”.  Relevant considerations include age, experience, training, language, other skills, suitability for rehabilitation or vocational training and, where “employment is available in a place that would require the employee to change his or her place of residence, whether it is reasonable to require the employee to do so”.  In this context, the word “employment” seems to involve identifiable duties and geographical location.

  70                                          I have previously referred to ss 14 and 19 which create the liability to pay compensation in respect of an injury which causes incapacity.  The terms “injury” and “employee” both limit the extent of the obligation.  I have already discussed the term “injury”.  The term “employee” is defined in ss 5(1) and 5(1A) as follows:

  5(1)      In this Act, unless the contrary intention appears:

  …

  employee means:

  (a)        a person who is employed by the Commonwealth or by a Commonwealth authority …; or

  (b)        a person who is employed by a licensed corporation.

  5(1A)   For the purposes of paragraph (b) of the definition of “employee” in subsection (1), a person is taken to be employed by a licensed corporation if, and only if:

  (a)        a person performs work for that corporation under a law or a contract; and

  (b)        pursuant to that law or pursuant to the law that is the proper law of that contract, as the case may be, the person would, if that corporation were not a licensed corporation, be entitled to compensation in respect of injury, loss or damage suffered by, or in respect of the death of, the person in connection with that work.

  71                                          A person will only be an employee of a licensed corporation if he or she performs work “under a law or a contract”.  Further, any such law, or the proper law of such contract, must be such as to require arrangements which are commonly described (at least in Queensland) as “workers’ compensation” legislation.  For present purposes there can be no suggestion that Mr Robertson was carrying on work for John Holland under a law.  He was doing so under a contract.  The notion that performing work under a contract is necessary to the concept of employment suggests that the terms of the contract should be seen as describing the employment.

  72                                          Section 5(2) and 5(3) deem certain office bearers to be employees for the purposes of the Act.  In each case such a person’s employment is said to be the performance of his or her duties.  Section 5(4) deals with persons who are ordinarily engaged for employment at a pre-arranged place, apparently dealing with casual employment of a kind of which may no longer be common.  Such a person is deemed to be employed by the employer which last employed him or her, such employment being constituted by the person’s attendance at the relevant place for the purpose of seeking engagement.  Sections 5(6) and 5(6A) provide that the relevant Minister may, by legislative instrument, declare that other office holders are to be deemed to be employees for the purposes of the Act.  Their employment is also to be the performance of their duties.  Whilst care must be taken in using these special provisions as informing the meaning attributable to the word “employment” in other parts of the Act, they suggest that the entitlement conferred upon each office-holder is in respect of injury suffered whilst performing his or her duties.  It is fairly clear that the general intention of the Act is to that effect.

  73                                          Although none of this is definitive, it seems to be more consistent with the purpose of the Act to treat the word “employment”, when used in the Act, as describing rather more than a trade, calling or classification of employees.  The Act is very much concerned with conditions in which employees work and their terms of engagement, rather than how they may be classified.  It is true that s 8 is concerned with earnings, and that trades, callings and systems of classification are commonly used in fixing pay scales.  However it is common general knowledge in the Australian community that workers on major infrastructure projects are frequently paid in ways which reflect other considerations, including longer than usual hours and geographical disadvantage. 

  74                                          Clearly, s 8(10) seeks to limit the compensation payable to an injured employee by reference to his or her notional earnings derived from employment with the same employer had he or she not been injured.  Section 8(10)(a) demands a notional enquiry which commences with the employee’s actual current employment.  The enquiry is as to his or her earnings in that employment had he or she not been injured.  Such enquiry would involve consideration of how, in those circumstances, the employee would have been employed, including consideration of whether he or she would have continued to perform the same duties as were being performed at the time of the accident.

  75                                          Section 8(10)(b) involves different considerations.  It assumes continuation of either the pre-injury employment or other actual employment undertaken subsequent to the injury with the same employer.  The decision-maker is not directed to assume that the employee was not incapacitated.  The enquiry pursuant to s 8(10)(b)(ii) involves only consideration of the employee’s actual employment at the date at which he or she ceased to be employed by the employer and of the earnings which would have been derived had the employee been in such employment in the week for which he or she is to be compensated.  It seems unlikely that the basis for comparison was meant to be anything other than the actual earnings, adjusted to reflect changes in circumstances between the cessation of employment and the date of calculation.  In particular, it seems unlikely that it was intended that the actual terms of employment were to be ignored, and the calculation based on the notional employment at rates payable to persons in a particular trade, calling or classification. 

  76                                          I also see no reason for requiring such a notional exercise in connection with s 8(10)(b)(i).  The section contemplates the notional continuation of the previous employment.  The purpose of the notional extension is to identify likely earnings in the event that such employment had been so extended.  The section does not contemplate the notional formulation of conditions of employment which had never existed.  The decision-maker must simply take the terms of employment applicable to the employee at the date of injury and enquire as to likely earnings pursuant to those terms as at the date of calculation.

  77                                          From Mr Robertson’s point of view, such an approach has one major drawback.  Pursuant to the letter of employment he had no entitlement to overtime, at least on the present state of the evidence.  He was to be paid only for such overtime as he performed.  Any enquiry as to his earnings after completion of the project would presumably reflect the total unavailability of overtime.  The certified agreement also provides for the payment of certain allowances.  Whether they should be taken into account in any calculation would be a matter for further submissions.

  IDENTIFIABLE QUESTION OF LAW

  78                                          In my view the Tribunal erred in law in holding that s 8(10) did not apply to the calculation of Mr Robertson’s NWE.  On the proper construction of s 8 as a whole, the process of calculation necessarily involved the steps contemplated by s 8(10), particularly s 8(10)(b).  For that reason the orders of the Tribunal must be set aside and the matter remitted to it for further consideration in accordance with law. 

  ORDERS

  79                                          I concur in the orders proposed by Logan J, save that reconsideration of the matter should reflect my somewhat different reasons for concluding that the Tribunal erred in law.

  
  

  I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

  
  
  

  Associate:

  
  

  Dated:         15 July 2010

  
  

   

  IN THE FEDERAL COURT OF AUSTRALIA
  QUEENSLAND DISTRICT REGISTRY
  GENERAL DIVISION	QUD 176 of 2009

  ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

   

  BETWEEN:	JOHN HOLLAND GROUP PTY LTD Appellant
  AND:	DAVID ROBERTSON Respondent

   

  JUDGES:	SPENDER, DOWSETT AND LOGAN JJ
  DATE:	15 JULY 2010
  PLACE:	BRISBANE

  
  

  REASONS FOR JUDGMENT

  logan J:

  80                                          On 26 March 2007 the Respondent, Mr Robertson, suffered an injury while working for the Appellant, John Holland Group Pty Ltd (John Holland) at the RG Tanna Coal Terminal Project (the Project) in Central Queensland. John Holland is a licensed corporation for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). On 9 May 2007 it made a determination accepting liability to pay Mr Robertson compensation under that Act in respect of “aggravation of pre-existing prolapse at L5/S1” in his lower back.

  81                                          Later, a controversy emerged as to the amount of the weekly compensation for incapacity John Holland was obliged to pay Mr Robertson in respect of the period from 16 September 2007 to 7 August 2008. The controversy related to the way in which John Holland had come to calculate Mr Robertson’s “normal weekly earnings” for the purposes of determining the amount of its weekly incapacity liability under s 19 of the SRC Act. “Normal weekly earnings” is a term defined by s 8 of the SRC Act. It is an element of the formula specified in s 19(2) of the SRC Act by reference to which, subject to qualifications which are not presently material, the amount of weekly incapacity compensation falls to be determined.

  82                                          In the result and following dissatisfaction on Mr Robertson’s part with the outcome of reconsideration of the relevant primary determinations, the matter came before a presidential member of the Administrative Appeals Tribunal for review. The Tribunal decided to set aside the reviewable decisions and, materially, remitted those decisions to John Holland “for reconsideration in accordance with a direction that section 8(10) of the [SRC] Act has no application to [Mr Robertson’s] circumstances”. It is from that decision that John Holland appeals to the Court on questions of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

  83                                          There was some initial controversy between the parties, evident from their respective written submissions, as to whether the questions formulated in the notice of appeal were indeed questions of law.

  84                                          Insisting upon the identification and formulation of a question of law for the purposes of s 44 of the AAT Act is more than just a matter of pedantry regarding pleading. As Gummow J observed in TNT Skypack International (Aust) Pty Ltd v Commissioner of Taxation (1988) 19 ATR 1067 at 1070, when a member of this Court, and in contrasting the nature of an appeal under s 44 of the AAT Act with the position which once prevailed under the Income Tax Assessment Act 1936 (Cth) in relation to appeals from Taxation Boards of Review, “The existence of a question of law is not now merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself”. Absent a question of law, the Court has no jurisdiction to entertain the proceeding.

  85                                          We were relieved from exploring further the deficiencies, if any, of the questions as specified in the notice of appeal, as it was not disputed that the appeal at least involved the answering of the following questions of law, which John Holland had come to specify in its written submissions in reply:

  (a)                is s 8(10)(b) of the SRC ACT incapable of any application simply because, in accordance with the terms of employment, an employee’s contract of employment comes to an end as a result of the completion of the employment for which that employee has been engaged; and

  (b)                in its application to an employee who is engaged under a contract of employment to perform particular work for the duration of a specified project, is the expression “employment in which he or she was engaged” in s 8(10)(b) of the SRC Act limited to employment on the specified project?

  Each of these questions was predicated upon the facts as found by the Tribunal. In one way or another, these and the other questions specified in the notice of appeal sought the answering of the question as to whether the Tribunal’s conclusion that s 8(10) of the SRC Act had no application to the facts so found was wrong in law? That, undoubtedly, does raise a question of law: Ergon Energy Corp Ltd v Commissioner of Taxation (2006) 153 FCR 551 at [46]. In these circumstances, it is not necessary further to consider the jurisprudence concerning s 44 of the AAT Act. The appeal is competent.

  86                                          The Tribunal found as a fact that Mr Robertson’s employment was  governed by the terms set out in John Holland’s offer of employment to him dated 13 July 2006 (the Employment Letter) and by a Federal certified industrial agreement, the RG Tanna Coal Terminal Expansion Project Certified Agreement 2005 (the Certified Agreement).

  87                                          The Employment Letter provided, inter alia, that: Mr Robertson:

  (a)                was to be classified as a “Scaffolder/Rigger/Dogger”;

  (b)                would initially be located at the Project; “however you may be required to travel to work at other locations from time to time”;

  (c)                would commence employment on 13 July 2006 (or as otherwise agreed, a subject which was not necessary to explore below) and cease, “on the completion of the task assigned to you and agreed between you and [John Holland] associated with [the Project]”;

  (d)                would have normal working hours between 6.30 am and 2:12 pm, Monday to Friday but that these hours might be varied within the range specified in the certified agreement;

  (e)                may be required to undertake overtime, shift work, work on weekends or public holidays to meet operational requirements;

  (f)                 would be paid penalty rates and shift allowances in accordance with the certified agreement.

  88                                          The Certified Agreement applied only to specified employees (of which Mr Robertson was one) working on construction work on the Project (cl 1.1). It was to remain in force until 31 October 2007 (cl 1.4). The Certified Agreement made provision for the payment of overtime and allowances. At its heart, the controversy between the parties was whether at all and, if so, to what extent Mr Robertson should have the benefit of having taken into account in the calculation of his “normal weekly earnings” the amounts of the weekly overtime and allowances which he had been receiving before he was injured.

  89                                          The Tribunal considered that the effect of the provision for duration of employment in the Employment Letter, materially extracted in para 8(c) above, was that the contract of employment “was for an uncertain period contingent upon the completion of the Project. Once the Project was completed the contingency was met and the contract of employment was at an end.” Each party to the appeal, correctly, proceeded on the basis that the Tribunal’s view of the effect of this provision was accurate. The Tribunal also found as a fact that the Project had been completed on 15 September 2007. There being nothing to suggest that his employment had been earlier terminated, the Tribunal inferred and found as a fact that, as the Employment Letter contemplated, Mr Robertson’s employment had been brought to an end by the occurrence of the terminating event i.e. the completion of the Project. He was therefore a person who had ceased to be employed by John Holland. This therefore directed attention to s 8(10)(b) of the SRC Act in the context of determining the amount of his weekly incapacity compensation for the period in question.

  90                                          Before examining why the Tribunal considered that s 8(10) of the SRC Act had no application, the terms of s 8 should be set out in full:

  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:

  

  where:

   

  "NH" is the average number of hours worked in each week by the employee in his or her employment during the relevant period;

   

  "RP" is the employee's average hourly ordinary time rate of pay during that period; and

   

  "A" is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.

   

  (2)        Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:

  

  where:

   

  "NH" is the average number of hours of overtime worked in each week by the employee in his or her employment during the relevant period; and

   

  "OR" is the employee's average hourly overtime rate of pay during that period.

   

  (3)        Where an employee was, at the date of the injury, employed by the Commonwealth or a licensed corporation in part‑time employment or unpaid employment, any earnings of the employee from any other employment shall, for the purposes of this section, be treated as earnings of the employee from his or her employment by the Commonwealth or the licensed corporation.

   

  (4)        Where, because of the shortness of the relevant period, it is impracticable to calculate the normal weekly earnings of an employee before an injury under subsection (1) or (2), the normal weekly earnings of the employee before the date of injury shall be taken to be the normal weekly earnings before that date of another employee performing comparable work, being normal weekly earnings from employment by the Commonwealth or a licensed corporation and calculated under subsection (1) or (2), as the case requires.

   

  (5)        Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.

   

  (6)        Subject to this section, if the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth or a licensed corporation at the date of the injury is increased, or would have been increased if the employee had continued in that employment, because of:

   

  (a)        the attainment by the employee of a particular age;

  (b)        the completion by the employee of a particular period of service; or

  (c)        the receipt by the employee of an increase in salary, wages or pay by way of an increment in a range of salary, wages or pay applicable to the employee or to his or her office, position or appointment;

   

  the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased by the same percentage as the percentage by which that minimum amount per week is increased, or would have been increased, as the case may be.

   

  (7)        Subject to this section, if:

   

  (a)        an employee continues to be employed by the Commonwealth or a licensed corporation after the date of an injury; and

  (b)        the minimum amount per week payable to the employee in respect of that employment is increased because of the promotion of the employee;

   

  the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased by the same percentage as the percentage by which that minimum amount per week is increased.

   

  (8)        Subject to this section, where:

   

  (a)        the employment of an employee is of a kind referred to in subsection 5(4) or (6) or subsection (3) of this section; and

  (b)        the employee is not receiving earnings from any other employment at the date of the injury;

   

  the normal weekly earnings of the employee before the injury shall be an amount determined by Comcare to be the amount per week that the employee would have been able to earn at the date of the injury (including any amount in respect of overtime worked on a regular basis) if he or she had engaged in suitable paid employment.

   

  (9)        The normal weekly earnings of an employee before the date of the employee's injury, as calculated under the preceding subsections, must, while the employee continues to be employed by the Commonwealth or a licensed corporation, be increased or reduced by the relevant percentage.

   

  (9A)     For the purposes of subsection (9), relevant percentage means the same percentage as the percentage of increase or reduction in the minimum amount per week payable in respect of employees included in a class of employees of which the employee was a member at the date of the injury as a result of:

   

  (a)        the operation of a law of the Commonwealth or of a State or Territory; or

  (b)        the making, alteration or operation of an award, order, determination or industrial agreement or the doing of any other act or thing, under such a law.

   

  (9B)     The normal weekly earnings of an employee before injury, as calculated under subsections (1) to (8) and as increased or reduced under subsection (9) must, if the employee has ceased, or ceases, to be employed by the Commonwealth or a licensed corporation, be further increased, with effect from each indexation date in relation to that cessation, by reference to the percentage of increase (if any) of an index that is prescribed for the purposes of this subsection over the year ending on the 31 December preceding each such indexation date.

   

  (9C)     For the purpose of subsection (9B), the indexation date , in relation to a cessation of employment, is:

   

  (a)        the 1 July next following:

   

  (i)         the date on which this Act receives the Royal Assent; or

  (ii)        the date of that cessation of employment;

  whichever last occurs; and

   

  (b)        each subsequent 1 July.

   

  (9D)     For the purpose of subsection (9B), the regulations may specify the manner of calculating the further increase referred to in that subsection by reference to the movement of the index that is prescribed for the purposes of that subsection.

   

  (9E)     The normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, must, with effect from 1 July in each year, be further increased by the amount under subsection (9F) if, in the 12 months immediately preceding that 1 July:

   

  (a)        there was no increase in those earnings under subsection (6), (7) or (9); and

  (b)        there was no reduction in those earnings under subsection (9).

   

  (9F)      If the normal weekly earnings of an employee before an injury must be increased because of subsection (9E), the amount by which they are increased is the percentage of increase (if any) in the index prescribed by the regulations for the purposes of this subsection over the period of 12 months ending on the 31 December immediately before the relevant 1 July.

   

  (9G)     For the purposes of subsection (9F), the regulations may specify the manner of calculating the further increase mentioned in that subsection by reference to the movement of the index that is prescribed for the purposes of that subsection.

   

  (10)     If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:

   

  (a)        where the employee continues to be employed by the Commonwealth or a licensed corporation--the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or

  (b)        where the employee has ceased to be employed by the Commonwealth or a licensed corporation--whichever is the greater of the following amounts:

   

  (i)         the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;

  (ii)        the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;

  the amount so calculated shall be reduced by the amount of the excess.

   

  [Emphasis added to s 8(10)]

  91                                          The Tribunal commenced its analysis of s 8(10) of the SRC Act by referring to the statement made by Heerey J in Bortolazzo v Comcare (1997) 75 FCR 385 at 388 concerning the provision made by s 19 of the SRC Act for the payment of incapacity compensation that, “The underlying policy is that an injured employee should not be worse off during the period of incapacity as a result of work-related injury. However, it follows conversely that the injured employee should not be better off.”

  92                                          The Tribunal considered that it was “preferable to construe s 8(10) of the [SRC Act] as being confined to situations where it is possible to say that an injured employee could have continued to be employed by the Commonwealth or a licensed corporation” (Reasons para 33). The Tribunal added (Ibid), “Viewed that way the subsection operates to reduce the entitlement to compensation in line with the reality of the fact of continued employment”. Reference was then made to earlier decisions of the Tribunal where s 8(10) of the SRC Act had been applied so as to make adjustments where shift allowances were no longer being paid or a work re-structure had brought about a substantial alteration to entitlements. The Tribunal observed (Ibid) of those decisions that they were “ones where it is possible to undertake a calculation of the earnings that the employee would receive if not incapacitated or would have received had the employment at the time of injury continued. But the subsection has no application to a situation where it was not contemplated that the employment at the time of injury would continue nor possible for that employment to continue” (Emphasis added).

  93                                          On this construction of s 8(10) of the SRC Act, its irrelevance to Mr Robertson’s circumstances followed as a matter of course from the Tribunal’s finding as to the limited duration of Mr Robertson’s employment and the occurrence of the terminating event..

  94                                          The Tribunal considered that its preferred construction was supported by an approach to the construction of s 8(10(a) of the SRC Act adopted by Greenwood J in Comcare v Burgess (2007) 164 FCR 66 at [26]. His Honour there concluded that the continuity of employment contemplated by s 8(10)(a) of the SRC Act was a “continuity of service and receipt of earnings not simply a subsisting employer/employee relationship”. The Tribunal opined (Reasons, para 33), “Similarly, … s 8(10)(b) of the Act contemplates the possibility of the continuity of service and receipt of earnings in the employment in which the employee had been engaged at the time of the injury.”

  95                                          The Tribunal made the additional observation that, “no different result would flow had Mr Robertson continued to be employed by [John Holland] during the period in issue here” (Reasons, para 34).

  96                                          In its submissions on the appeal John Holland drew attention to some further general observations concerning s 8(10) made by Jacobson J in Comcare Australia v Pires (2005) 143 FCR 104. Having referred to the view expressed by Heerey J in Bortolazzo v Comcare, supra, concerning the purpose of s 8(10), Jacobson J observed (at [54]):

  Although Bortolazzo was concerned with s 8(10)(a), it illustrates the way in which both ss 8(10)(a) and (b) are intended to have effect. They are concerned with a comparison of normal weekly earnings pre-injury and the amount the employee would have received after the injury if he or she were not incapacitated or had continued to work for the employer under the changed work conditions.

  97                                          Against these general statements as to the purpose of s 8(10) of the SRC Act and with particular reference to s 8(10)(b), John Holland submitted that the language of that paragraph was such as to include within the reach of the preamble to the paragraph a person whose employment had, after the date of the compensable injury, ceased because of effluction of time or, as in the present case, the occurrence of a terminating event. To regard s 8(10)(b) of the SRC Act as inapplicable to the latter type of person was, it was submitted, impermissibly to introduce a gloss on the language of the paragraph. It was, it was submitted, in effect to supply words of limitation such as “other than employment that will not cease either because of the effluction of time or the occurrence of a contractually defined event” in the text of s 8(10)(b) of the SRC Act which met none of the three conditions for such an approach to statutory construction set out by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-107.

  98                                          John Holland submitted that an understanding of the purpose of s 8(10)(b) of the SRC Act was assisted by recalling that its language was formulated at a time when the reach of that Act was narrower being in the main directed to persons employed under the then Public Service Act 1922 (Cth) (Public Service Act 1922). It was submitted that, while such persons enjoyed a degree of permanency and continuity of employment (to which s 10(2)(a) of the SRC Act was directed), termination as a result of redundancy and termination by effluction of time for those on short term or fixed term appointments was not unknown in the public service. Thus, it was submitted, it was unlikely that Parliament had intended to omit from the two hypothetical comparatives posited by s 8(10)(b) these other types of employment found in the public service.

  99                                          Attention was drawn on behalf of John Holland to a series of earlier cases in the Tribunal – Richards v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees [1993] AATA 164; Re Spurr and Comcare (1999) 28 AAR 424 (Spurr), Griffiths and Comcare (2003) 77 ALD 500; Thompson and Comcare (2002) 69 ALD 762 and Knudsen and Australian Postal Corporation [2006] AATA 1038 and Warnock and Comcare [2008] AATA 567. Of these, it is apparent that the reasons of Deputy President Blow (as his Honour then was) in Spurr have proved enduringly influential. John Holland cited the following passage (at [428]) from his reasons and submitted it encapsulated how s 8(10) of the SRC Act operated:

  The clear purpose of s 8(10) is to prevent an injured employee from being better off as a result of being incapacitated. As Parliament sought to achieve that purpose by enacting a provision requiring only a comparison with hypothetical earnings as an employee of the Commonwealth, and not requiring the actual or estimated earnings that an employee who would have moved to the private sector would have received, Parliament adopted a regime that was less than perfect, but perhaps had the advantage of administrative simplicity. Given underlying purpose of the relevant provisions as explained by Heerey J, I believe that s 8(10)(b) requires a decision-maker, in assuming that an employee would have continued to be employed by the Commonwealth in the employment in which that employee was engaged, first to assume that the employee would have continued in the same occupation and at the same level, and then consider what circumstances resulting in the payment of allowances, overtime or the like would have existed from time to time. As this case well illustrates, making the additional assumption that an employee's duties would have remained unchanged could have an absurd and obviously unintended result.

  [Emphasis added by John Holland in submissions]

  100                                       John Holland also highlighted in its submissions an additional observation by Deputy President Forgie in Thompson and Comcare (2002) 69 ALD 762 at [23]) that s 8(10)(b) of the SRC Act was “equally applicable where the Commonwealth has terminated the employment because the employment because the position or the department or agency no longer exists”.

  101                                       From this it was submitted that s 8(10) of the SRC Act contemplated that account had to be taken of changed conditions of employment which would have applied had the injured worker continued in the same kind of classification of employment on other projects.

  102                                       Mr Robertson’s submissions also acknowledged that s 8(10)(b) of the SRC Act posited two hypothetical questions predicated upon the injured worker having ceased employment. He cast those hypotheticals in the following way. They were that, though he was no longer employed by John Holland, s 8(10)(b) required it to be assumed that he continued to be employed by that company in:

  (a)                the employment in which he was engaged at the time of his injury – s 8(10)(b)(i); or

  (b)                the employment in which he was engaged at the date when his employment by John Holland ceased – s 8(10)(b)(ii).

  103                                       It was submitted on behalf of Mr Robertson that, on the facts as found in this particular case, there was no difference between the two hypothetical situations. That was because his employment was the same both at the date of his compensable injury and the date when it ceased. Thus, it was submitted that the two hypotheticals might permissibly be conflated to the answering of the following:

  If Mr Robertson had continued to be employed in the employment evidenced by the employment letter, would the amount per week of earnings that he would have received in that continued employment be less than the amount of “net weekly earnings calculated under s 8(10 and 8(2) of the SRC Act?

  104                                       In the answering of that question Mr Robertson embraced and advanced the conclusion reached below by the Tribunal. It was said to be a feature of Mr Robertson’s “employment” for the purposes of s 8(10)(b) that it would come to an end when the Project was completed. That being so, it was submitted that s 8(10)(b) could have no application. It was submitted that the reference in each of s 8(10)(b)(i) and s 8(10)(b)(ii) of the SRC Act to “the employment in which he or she was engaged [at the date of the injury or, as the case may be at the date on which the employment by the licensed corporation ceased]” was a reference in the circumstances of this case to employment for a closed period not, as had been submitted on behalf of John Holland, to “the general kind or classification of employment at the relevant times”.

  105                                       Recognising that to construe s 8(10)(b) as having no application because it was a feature of the hypothetical employment that it would be terminated upon the completion of the Project might be regarded as inconsistent with the very basis upon which the hypotheticals in s 8(10)(b) of the SRC Act were cast, Mr Robertson alternatively submitted that all that excluding this feature would mean was the making of an assumption for the purposes of either alternative hypothetical that Mr Robertson had continued to be engaged at the Project by John Holland as a rigger under the terms of the Certified Agreement. It was, it was submitted, to just such an alternative approach to which the Tribunal was adverting in the additional observation in para 34 of its reasons, quoted above.

  106                                       Neither party came to make anything of Comcare v Burgess (2007) 164 FCR 66 on the basis that it was concerned with the construction of s 8(10)(a) of the SRC Act, not s 8(10)(b), and was for this reason alone distinguishable.

  107                                       The observations made by Heerey J in Bortolazzo and by Jacobson J in Pires concerning s 8(10) of the SRC Act are, with respect, unexceptional in their general accuracy. The task though remains one of construing s 8(10)(b) “so that it is consistent with the language and purpose of all of the provisions of the statute” and by reference to the language of the statute as a whole: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

  108                                       Approaching the task in this way, it is instructive to recall the place of the definition of “net weekly earnings” in the formula set out in s 19 of the SRC Act for the ascertainment of the amount of the liability to pay incapacity compensation. Materially, s 19(2) provides:

  (2)        Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

  

  where:

  "AE" is the greater of the following amounts:

   

  (a)        the amount per week (if any) that the employee is able to earn in suitable employment;

  (b)        the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.

   

  "NWE" is the amount of the employee's normal weekly earnings.

  109                                       In turn, s 4 of the SRC Act defines “suitable employment” as follows:

  "suitable employment" , in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:

   

  (a)        in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed--employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:

   

  (i)         the employee's age, experience, training, language and other skills;

  (ii)        the employee's suitability for rehabilitation or vocational retraining;

  (iii)       where employment is available in a place that would require the employee to change his or her place of residence--whether it is reasonable to expect the employee to change his or her place of residence; and

  (iv)       any other relevant matter; and

   

  (b)        in any other case--any employment (including self‑employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).

  110                                       Recalling that s 8(10)(b) forms part of a definition that gives meaning to one side of the equation set out in s 19(2) in circumstances where the subtracter side of the equation requires the positing, inter alia, of what the employee is able to earn in “suitable employment” as defined makes it inherently unlikely that any notion of “suitable employment” attends the “employment” that one is directed by s 8(10)(b) of the SRC Act to consider on a hypothetical basis. Thus, and in the context of the present case, the hypothetical “employment” cannot just be considered at a level of abstraction which is nothing more than “employment as a rigger”. In each of s 8(10)(b)(i) and s 8(10)(b)(ii) of the SRC Act the hypothetical scenario posed requires more than a consideration of the generic calling of the injured worker at one or the other of the times posited. Mr Robertson’s submissions acknowledged such a requirement. So, too, did those of John Holland, although the acknowledged qualification on the generic calling was put as “employment by that employer”, relevantly John Holland.

  111                                       That the word “employment” as it appears in s 8(10)(b) is fraught with nuances may be accepted. A clue as to the degree of precision the reference to “employment” dictates when hypothesizing as required is supplied by recalling the premise on which the application of the s 8(10)(b) is cast. This paragraph of s 8(10) falls for consideration when an employee has in fact ceased to be employed by, materially, the licensed corporation. It is thus, for example, the very employment in which that employee was engaged at the moment of cessation with which the hypothetical construct posited by s 8(10)(b)(ii) of the SRC Act is concerned. In context, that is employment by John Holland as a rigger on the Project, which itself is of finite duration.  However and necessarily, given the premise upon which the application of the paragraph is cast, one must hypothesise as to circumstances where the employment as a rigger will not end with the completion of the Project.

  112                                       Section 8(10)(b) of the SRC Act applies when the employee has ceased to be employed. It is not rendered inapplicable because the contractual conditions of the hypothetical employment one is then directed to consider happen to include a term which provides for cessation of employment because of the effluction of time or the happening of an event and either that time has expired or that event has occurred. The very language of each of s 8(10)(b)(i) and s 8(10)(b)(ii) of the SRC Act directs one to assume that, notwithstanding the fulfilment of such a limiting condition as to the duration of the employment, the employment is in fact continuing. Thus is revealed the flaw in the Tribunal’s conclusion that s 8(10) of the SRC Act is inapplicable in the circumstances of this case.

  113                                       That the conclusion as to the inapplicability of s 8(10) is in error is confirmed by reflecting on the role played by that subsection in s 8. In the case of an employee required to work regular overtime and by the time that s 8(10) falls for consideration, because that employee’s employment has ceased, a calculation will already have been made in accordance with s 8(1) and 8(2) of the prima facie amount of “net weekly earnings”. The focus of that calculation is on the position of the employee during the “relevant period”, as defined. Section 9 of the SRC Act supplies the definition for this purpose of “relevant period”. Subject to exceptions and qualifications that it is not presently necessary to consider, s 9 makes the “relevant period” for the purposes of s 8(1) and s 8(2) “the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by … the licensed corporation” (emphasis added). In contrast and necessarily s 8(10) looks to hypothetical later periods. It does so to the end of determining whether these yield an excess over the prima facie amount. This is why the observations made by Heerey J in Bortolazzo and by Jacobson J in Pires concerning s 8(10) of the SRC Act are unexceptional.

  114                                       Assuming, hypothetically, for the purposes of s 8(10)(b), that the employment continues does not require the ignoring of the then terms and circumstances of that employment. To the contrary these must be taken into account. In this case so doing reveals that the Certified Agreement was to end on 31 October 2007 and was confined in its application to a class of workers employed on the Project. Further, the employment circumstances materially included the completion of the Project on 15 September 2007. In the hypothetical scenarios posited by s 8(10)(b) a consideration of “the employment in which the employee was engaged” requires such matters to be taken into account but also that the employment by the employer will nonetheless continue after the completion of the Project. Necessarily, because of the features of the Certified Agreement just noted and of the completion of the Project, that hypothetical continuing employment cannot be at the Project and under the terms of the Certified Agreement.

  115                                       Thus are revealed the flaws in the Tribunal’s alternative observation (Reasons, para 34), embraced by Mr Robertson, that no different result would flow had he continued to be employed by John Holland during the period in issue. That could only necessarily be so if either continuing employment hypothesis could permissibly be made on the assumption that the Certified Agreement continued to apply in that period, that the Project was continuing and, for that matter, that Mr Robertson’s work schedule on the Project continued with the same intensity. The first two of these were contrary to known facts concerning the nature and circumstances of “the employment in which the employee was engaged”.

  116                                       In the hypothetical scenarios of which s 8(10)(b) required consideration, a rigger in the ongoing employment of John Holland may have immediately moved to another John Holland project governed by similar terms and conditions under a site specific certified agreement and with similar working hours. Possibly also though that hypothetical rigger may have been held on staff by John Holland without working shifts or overtime awaiting such deployment and paid for a time under the terms of an industrial award of general application to his calling. Such matters were not explored by the Tribunal because of its erroneous conception that s 8(10) of the SRC Act had no application.

  117                                       These are but theoretical possibilities. They require the making of findings of fact, which is not a task for this Court on an appeal of this nature. It will be for the Tribunal on remission to undertake the required hypothesizing in respect of the period in question. The period in question having closed, evidence as to the experience of John Holland and riggers engaged by it as to terms and conditions of employment over that period would be relevant to that consideration. If it was John Holland’s practice serially to engage riggers on a project specific basis the assumption of continuity of employment which attends the hypothetical task may require the making of an assumption that such riggers were not engaged only on a project specific basis but instead remained employed and were then rotated from project to project being governed by site specific certified agreements during a project’s duration and by underlying awards during intervals. Proof to demonstration would not be required. All that is required is an hypothesis which is reasonably open on the material before the Tribunal.

  118                                       The Antarctic cases, Richards and Spurr, offer helpful examples of how s 8(10)(b) of the SRC Act, correctly understood, operates. In those cases there was evidence of a practice of rotational deployment to Antarctica. Deployment there carried with it an entitlement to particular, additional allowances which work at home base in Australia did not. Thus, though the workplace injuries occurred in Antarctica, consideration of a hypothetical continuum necessarily required allowance being made for the phenomenon of rotation with its reduced pay and entitlements for a given period when service would have been in Australia and thus without any entitlement to additional Antarctic allowances. In such situations it is possible in theory to envisage, in the case of those on long term incapacity compensation, periods when a s 8(10)(b) hypothesis would yield an excess and periods when it would not, if the predicted continuum in that employment would necessarily involve periods of fluctuating entitlement to particular additional allowances or overtime.

  119                                       For completeness, it should be recorded that there is no need to reflect on the origins of the SRC Act in the regulation of workers’ compensation for those in Commonwealth employment to reach these conclusions as to the flaws in the Tribunal’s reasons. Even at the time of its enactment in 1988 the SRC Act extended in its reach well beyond those employed under the Public Service Act 1922. The Act extended to those in military service and to federal police officers, the members of neither class of which were, at common law, employees of the Commonwealth at all. That common law position explains the need for the deeming found in s 5(2) of the SRC Act (a provision to which along with other subsections of s 5 there was passing but ultimately unhelpful reference by John Holland in the course of its oral submissions). Were it to matter, I do not think the construction of s 8(10)(b) is assisted by recalling the origins of the SRC Act. The language has been retained even though the reach of that Act extends beyond those employed or deemed to be employed by the Commonwealth or even Commonwealth public authorities to those employed by licensed corporations.

  120                                       Neither, like the parties do we consider that there is any assistance to be gained from a consideration of Comcare v Burgess. That case concerned the construction of s 8(10)(a) of the SRC Act, not s 8(10)(b).

  121                                       In the result then, the underlying question as to whether the Tribunal was obliged, on the facts as found, to have regard to s 8(10)(b) of the SRC Act must be answered in the affirmative. There is no reason arising from the hearing below or the issues on appeal why the Tribunal as previously constituted ought not to hear the matter on its remission. Whether or not that occurs is a matter though for the Tribunal’s President and his delegates in their administration of the Tribunal.

  122                                       Costs should follow the event. It was common ground between the parties that the present was a test case. Unlike Mr Robertson, John Holland as a licensed corporation had interests beyond those of Mr Robertson which were served by an examination of the questions of law posed. The case is one where it would be appropriate for Mr Robertson to have a certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).

  123                                       There should be orders accordingly.

  I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

  
  
  

  Associate:

  
  

  Dated:         15 July 2010