Gray v Comcare [2004] FCA 1037

Procedural Posture

Workers Compensation / Appeal Pursuant to S 44 of the Administrative Appeals Tribunal Act 1976 (cth) From a Decision of the Administrative Appeals Tribunal Affirming Comcare's Determination of Normal Weekly Earnings

Legal Issues

1. 1 ['Whether weeks during which a casual employee worked no hours owing to illness should be included in the relevant period for calculating normal weekly earnings.' 'Whether payment of a 15 per cent loading to a casual employee was a relevant consideration in determining normal weekly earnings under s 8 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).' "Whether the Tribunal made an error of law in affirming Comcare's calculation of the applicant's normal weekly earnings."]

Ratio Decidendi

The Tribunal erred in law by treating the 15 per cent casual loading as relevant to the statutory task of calculating normal weekly earnings and by treating the applicant as having been remunerated for the five weeks when she was absent because of illness. For the purposes of ss 8 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), normal weekly earnings means earnings while working, and a period of sick leave when no work was performed and no remuneration was received should not depress the calculation of the proper casual rate.

Court Disposition

Appeal allowed; the Tribunal's decision and Comcare's reviewable decision were set aside.

Orders

• ["The decision of the Tribunal will be set aside and, in lieu thereof, the respondent's reviewable decision dated 24 February 2002 will be set aside." 'The respondent is to pay the costs of the applicant.' 'The matter is stood over for the parties to agree upon the appropriate order.']