1. The hearing proceeded with both the applicant and Mr Dube for the respondent making submissions. The applicant did not give oral evidence.
2. A Joint Tribunal Book ("JTB") was received in evidence. The JTB was a compilation of the "T" documents together with several other documents relied upon by both the applicant and the respondent.

1. It is appropriate to briefly touch on the applicable sections of the SRC Act relevant to this application.
2. The formula to be applied in calculating NWE for the purposes of the SRC Act is prescribed in s 8 (1). It need not be reproduced for the purposes of these reasons.
3. Relevantly, for the purposes of this application, s 8 (2) of the SRC Act provides that where an employee is required to work overtime on a regular basis, the NWE 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 period under the formula:

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.

1. The term "relevant period" is defined in s 9 (1) of the SRC Act. That section provides for the purposes of calculating NWE of an employee before an injury, a reference in section 8 to the relevant period is a reference to the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the Commonwealth.
2. Reference should also be made to s 9 (4) of the SRC Act. That section provides that if, during any part of the period calculated under the preceding subsections, the employee's earnings were reduced, or the employee did not receive any earnings, because of absence from their employment for any reason, that part of that period shall be disregarded for the purposes of calculating the relevant period.
3. Section 8 (5) of the SRC Act provides that where, because of the shortness of the relevant period, NWE as calculated in relation to the relevant period under subsections (1) or (2) would not fairly represent the weekly rate in which the employee was being paid in respect of their employment before the injury, the NWE 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.
4. Section 8 (10) of the SRC Act provides that if the amount of NWE of an employee before any injury, as calculated under the previous subsections, would exceed:

(a) where the employee continues to be employed by the Commonwealth - the amount per week of the earnings that the employee would receive if they were not incapacitated for work; > > ...... > > the amount so calculated shall be reduced by the amount of the excess.

1. The respondent in its Statement of Facts, Issues and Contentions, applying the above sections of the SRC Act to the facts of this matter, has accurately identified the essential issues that need to be determined in arriving at the correct calculation of the applicant's NWE pursuant to s 8 of the SRC Act.[2] They are as follows:

(a) Whether the period of 2 weeks before the date of injury fairly represents the applicant's NWE before the date of injury; > > (b) If not, what period is reasonable for the purposes of arriving at an amount that fairly represents the applicant's NWE before the date of injury; > > (c) Whether the applicant was required to work overtime on a regular basis; > > (d) What is the average amount of any allowance payable to the applicant in each week during the relevant period? > > (e) What is the correct NWE as of 17 November 2020?

1. The applicant's contentions concerning these issues for determination by the Tribunal have been put in several ways. The first limb of his contentions concerning these questions, quite understandably, is that the two-week period immediately prior to the date of injury does not properly represent his NWE prior to that date.
2. The next limb concerns the applicant's contention that for many years when employed by Services Australia he was paid several allowances, including regular overtime, which resulted in his salary earned each financial year being significantly more than what he described as "Normal APS6 wages". In one email to the respondent on 1 May 2025 on this topic, he stated the following:

"On average since 2007 I've worked overtime and this amount was between $10,000 and $30,000 a financial year more than my base salary. I'm missing out on this money and I've been advised it's not going to be included in the lump sum payout proceedings which is currently at the Tribunal."[3]

1. In another email to the respondent on 5 May 2025 the applicant stated:

"As I stated in my initial email this overtime and allowances money will not be paid in my lump sum payment which the tribunal is working on, and as it was regular to my normal working life it should be paid. I presume Danielle can provide my group certificates or payslips to show how much overtime and allowances I regularly paid. Please let me know how you will calculate it. Will it be the average from my last 10 years, 5 years or 3 years which I worked overtime and paid these allowances for first aid, fire water and meal allowances?"[4]

1. Another aspect of the approach adopted by the applicant included a reference to what he described as a major bullying incident. He also referred to earning overtime and allowances such as first-aid, fire warden and meal allowances. In an email to a delegate of the respondent on 3 June 25 the applicant stated:

"Over the years I have earned over time as part of my annual salary and also had allowances paid such as first-aid, fire warden and meal allowances."

"After a major bullying incident in early 2020 I ceased working overtime as I did not wish to be with the perpetrators longer than my standard hours (37.5). I would like you to use an average of the last 3-5 years of payslips to calculate the overtime. That will then show a clear pattern rather than just a fortnight, month or 3-month block of overtime."[5]

1. In another email sent on 7 October 2025 by the applicant to both the Tribunal and the respondent, which was in evidence, the applicant further stated as follows:

"As for my statement of issues, the issue is that I'm not being paid any overtime in my NWE and overtime was regular to my income from work. I was employed for 25 years and was terminated after I was permanently disabled due to bullying from work. The date of injury is recorded as 20/11/2020, however the bullying started well before this date. I have offered and emailed in August 2025 that I am willing to settle my overtime payments at $6,000 a year. The averages of my last 7 years was about $8,000 paid to me and overtime each financial year. I only worked a handful of days in November 2020 and no overtime, so using that payslip does not show regular overtime. I usually worked weekends or public holidays for overtime as well as sometimes managing the shifts of all staff (from 20-150 staff) for overtime data for the zone in relation to overtime and statistics and outcomes."[6]

1. In short, the applicant contends that the relevant period for the purposes of s 8 (5) of the SRC Act should be either or 3, 5 or 10 years. He stated that his payslips for the last 25 years of his employment with Services Australia (Centrelink) showed that he regularly worked overtime and was required to do so as part of his duties so described. He emphasised that this was particularly so since 2017 when he supervised zone overtime shifts at the Nerang Service Centre, as noted coordinating all 17 sites.
2. The applicant also relied upon an analysis of the overtime that he had worked and was paid for over several years prior to the date of injury. They were for the financial years as follows:

(a) 2020/2021 $5,917.00; > > (b) 2019/2020 $5,288.00; and > > (c) 2018/2019 $8,931.00.

3. Further, the applicant stated that the arithmetic average of overtime paid to him between the years of 2014 to 2021 was $8,841.00 per annum. Another statistical approach relied upon by the applicant was to contend that since the date of injury the amount of overtime he had worked calculated as a percentage was 15.8%.
4. Therefore, given all these factors the relevant period identified in the reviewable decision was more reasonable.
5. There are also several limbs to the contentions advanced by the respondent.
6. Firstly, it accepts that the applicant's earnings during the two-week period prior to the date of injury, being 17 November 2020, does not fairly represent the applicant's NWE prior to the date of injury. This is because the applicant only worked one day during the two-week period prior to such date. The consequence of this is that if s 9 (4) of the SRC Act were applied to that period it would be impracticable to fairly calculate his NWE prior to the accepted date of injury.
7. Secondly, the respondent submits that the relevant period that is reasonable under s 8 (5) of the SRC Act and fairly represents the applicant's NWE prior to the date of injury is from 15 to 28 October 2020. The grounds relied upon in support of this contention are that such period:

(a) Is the fortnight most proximately to the date of injury in which the applicant did not take any leave; > > (b) Fairly represents the applicant's ordinary rate of pay prior to injury when regard is had to the applicant's statement of earnings over a 12-month period; and > > (c) Fairly represents the applicant's normal weekly hours prior to injury when regard is had to his statement of earnings over a 12-month period.[7]

WHAT PERIOD IS REASONABLE FOR THE PURPOSES OF ARRIVING AT AN AMOUNT THAT FAIRLY REPRESENTS THE APPLICANT'S NWE BEFORE THE DATE OF INJURY?

1. The Tribunal agrees with the parties' contentions that the latest period of 2 weeks before the date of the injury during which the applicant was continuously employed by Services Australia does not fairly represent the weekly rate at which he was being paid in respect of his employment before the date of injury. This is because he only worked one day during the two weeks prior to the date of injury. Therefore, it is self-evident applying s 8 (5) of the SRC Act the NWE shall be calculated in relation to such other period as the Tribunal, as decision-maker, considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which he was being so paid.
2. In determining another relevant period for the purposes of calculating the applicant's NWE before the date of injury, the Tribunal considers that the language used in s 9 (1) of the SRC Act, referring as it does to the latest period 2 weeks before such date, guides it as decision-maker to fix such a period as most reasonably close to the date of injury. Similarly, the Tribunal cannot accept that subsection 8 (5) of the SRC Act enables a determination of the relevant period over such a broad timeframe as contended for by the applicant, namely over several years. On the true and proper construction of these sections, they must be read and applied in such a way that the nearest fortnight where the applicant carried out his usual duties on a full-time basis is identified as the relevant period for the purposes of s 8 (5).
3. The respondent referred to a decision of the Full Court of the Federal Court of Australia in Comcare v Nicholas.[8] It is helpful to reproduce a paragraph from the joint decision of Edmonds, Buchanan and Flick JJ which provides guidance on applying this section. They stated as follows:

"What period may be selected under s 8 (5)? It must obviously be one which meets the purpose of the calculation in which it will be used. That is to say, it must yield a fairly representative average of weekly working hours pre-injury and a fairly representative ordinary time rate of pay pre-injury so that a reliable calculation of normal weekly earnings pre-injury might be made for the purpose of s 19."

1. The Tribunal accepts the contention of the respondent that the period of 15 to 28 October 2020 is the applicable relevant period that is reasonable for the purposes of arriving at an amount that fairly represents the applicant's NWE prior to the date of injury. It does so for several reasons.
2. Firstly, it is the two weeks closest to the date of injury when the applicant carried out his usual duties on a full-time basis.
3. Secondly, it is fairly representative of the applicant's average of weekly working hours pre-injury.
4. Thirdly, it is fairly representative of the applicant's ordinary time rate of pay pre-injury.

WAS THE APPLICANT REQUIRED TO WORK OVERTIME ON A REGULAR BASIS?

1. As is apparent from the text of s 8 (2) of the SRC Act, for an additional amount to be calculated for overtime in relation to the relevant period under the formula it is necessary for the applicant to establish that he was "required" to work overtime and did so "on a regular basis" during such relevant period.
2. Section 4 of the SRC Act states that "overtime" includes any duty on shifts or on Saturdays, Sundays or other holidays and excess travelling time.
3. The respondent referred to a decision of the Full Court of the Federal Court of Australia in Telstra Corporation Limited v Peisley.[9] Two paragraphs of the joint decision of Wilcox and Conti JJ warrant reference as they provide useful guidance in answering this question. They stated as follows:

[33] The word "require" is of wide import including "to have need of" as well as "to call on authoritatively, order or enjoin", and "to ask for authoritatively or imperatively": see the Macquarie Dictionary (3rd ed), which additionally extends the meaning "to [inter alia] impose, need or occasion" as well as "to place under an obligation or necessity" and "to wish to have". That scope of meanings indicates the importance of the context in which the word is used. In a modern context, the s 8(2) notion of "required to work" must necessarily take into account the nature and extent of the mutuality of an employment arrangement and its particular incidences, including the likely relationship between Telstra employees undertaking duties and functions such as those performed by Mr Peisley and their supervisors.

[34] Consequently we think the word "required", in this context, includes situations where the employee is placed under obligation by the employer, even by a separate agreement that may not be legally enforceable but which constitutes an authority to work the additional hours. Particularly should that be so in the context of services to paying customers of the employer, which are to be provided by skilled, unsupervised employees working sometimes at a distance from the employer's places of administration. And of course to the extent that such giving of authority would tend to occur in the normal course, the statutory notion of "on a regular basis" would also be satisfied."

1. Having considered the construction and meaning of the relevant sections of the SRC Act applicable to this question, it is necessary to undertake an examination of the evidence concerning what overtime the applicant did indeed work during the relevant period.
2. Pay records maintained by Services Australia recording his employment details, including hours worked in applicable rates, were contained in a business record of that organisation which was in evidence before the Tribunal. As the entries in that business record appeared to have been maintained in the course of or for the purposes of conducting the business or activities of Services Australia, there is no reason for the Tribunal to doubt the authenticity and accuracy of that document.
3. The pay records for the applicant in evidence contained details of the applicant's employment from 14 November 2019 to 21 November 2020. An examination of that document reveals that the applicant worked overtime during only 3 of the 27 pay periods recorded in that document. Relevantly, he did not work any overtime during the dates of 15 to 28 October 2020.
4. The respondent Comcare on 4 June 2025 served on Services Australia a Notice to Provide Information under s 71 of the SRC Act. Services Australia provided a response on 16 June 2025.[10] Prepared by an Assistant Director HR Support-Rehabilitation of Services Australia, it stated that from an examination of the applicant's pay records he was paid overtime as follows:

(a) 19 out of the 124 days between 3 February 2015 7 June 2015; > > (b) 45 out of the 332 days between 23 January 2016 and 20 December 2016; > > (c) 17 out of the 140 days between 7 January 2017 and 27 May 2017; > > (d) 11 out of the 276 days between 3 March 2018 a 4 December 2018; > > (e) 20 out of the 141 days between 16th every 2019 and 7 July 2019; > > (f) 1 day 29 March 2020; and 5 days in April 2020.

5. During the hearing the applicant was asked whether the details of the pay records concerning the number of days and when he was paid overtime as identified in the response from Services Australia of 16 June 2025 were accurate. He admitted that they were. Given this admission, the Tribunal considers that it is appropriate to rely upon such information for the purposes of determining this matter.
6. There are several other facts that emerged from the material that are also relevant to the determination of this question.
7. For the immediate 12 months prior to the date of injury, the applicant was only eligible to apply for overtime in the months of February and April 2020. The applicant did, as contended for by the respondent, during that period only work overtime on sporadic occasions and therefore, for the majority of that time overtime was not being paid on a regular basis.
8. There was no overtime offered for which the applicant could have applied for and worked from 30 June 2022 to 31 December 2020 in any face-to-face service delivery locations. Additionally, he did not have authority to work overtime outside of this period for the following reasons:

(a) APS 5/6 staff are excluded from working such overtime; or > > (b) The applicant was on recreational leave; or > > (c) He did not hold the requisite skill tags.

9. As is apparent from a consideration of the above facts, the statutory test specified in s 8 (2) of the SRC Act, which must be satisfied in order for an additional amount for overtime to be calculated in the NWE of the applicant, has not been met.
10. He did not work any overtime during the relevant period of 15 to 28 October 2020.
11. Even if one were to construe the section so as to apply a longer relevant period such as from 14 November 2019 to 21 November 2020 he simply was not required to work overtime on a regular basis between those dates. It was sporadic and on only minimal occasions.
12. Similarly, even if one were to expand the range of dates under consideration to those referred to and identified in the material provided by Services Australia in response to the s 71 Notice, there were a comparatively limited number of days that he worked overtime, and it was clearly sporadic. It could in no way be classified or categorised as a requirement to work overtime on a regular basis. Therefore, the Tribunal concludes that the applicant was not required to work overtime on a regular basis. For these reasons the Tribunal accepts the respondent's contention that the calculation of the applicant's NWE cannot include an additional amount for overtime.

WHAT IS THE AVERAGE AMOUNT OF ANY ALLOWANCE PAYABLE TO THE APPLICANT IN EACH WEEK DURING THE RELEVANT PERIOD?

1. The respondent has conceded and made provision in its calculations of the applicant's NWE during the period 15 to 28 October 2024 for the APS6 higher duties allowance. This reflected, as noted earlier, that during the relevant period he had been acting as an APS6 Team Lead.
2. As recorded above, the applicant had, in email correspondence directed to the respondent, contended he was also entitled to a first-aid allowance, fire warden allowance and meal allowances.
3. With respect to the claim for the first aid allowance, the applicant was only in receipt of such an allowance between 9 September 2021 to 9 September 2022. This is clearly after the date of the injury. He was not in receipt of such allowance during the relevant period that the Tribunal has determined, mainly 15 to 28 October 2025. Therefore, the Tribunal accepts the respondent's contention that such an allowance should not be included in an assessment of the applicant's NWE pursuant to s 8 (1) of the SRC Act.
4. As for the fire warden allowance, the applicant was only paid such an allowance between the dates of 29 September 2011 to 18 December 2015. He was not in receipt of such an allowance during the relevant period determined by the Tribunal to be between 15 to 28 October 2020. In any event as contended for by the respondent, he has not been in receipt of such an allowance for almost 5 years prior to the date of injury. It would not, in the view of the Tribunal, be reasonable to include a fire warden allowance after the lapse of so much time, for the purposes of arriving at an amount that does fairly represent the weekly rate at which he was being so paid. For these reasons the Tribunal is not prepared to find that it should be included in the assessment of the applicant's NWE pursuant to s 8 (1) of the SRC Act.
5. Concerning the claim for a meal allowance, it should be observed that the SRC Act contains no definition of the term "allowance". Section 8 (1) provides however, that that it does not include an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment. The respondent relies upon Schedule 5 of the applicable Enterprise Agreement which provides that overtime meal allowances do not form part of an employee's salary in respect of any overtime worked. Reliance is also placed on previous decisions of the Administrative Appeals Tribunal such as Ragg and MRCC which held that such an allowance is properly characterised as "special expenses" within the meaning of s 8 (1) of the SRC Act.[11] the Tribunal accepts these submissions. The language adopted in the Enterprise Agreement is clear and unequivocal. If a meal allowance does not form part of an employee's salary it cannot be applied to calculate an assessment of the applicant's NWE under s 8 (1) of the SRC Act. Also, it agrees with the interpretation of cases such as Ragg that meal allowances are special expenses as contemplated by s 8 (1) of the SRC Act because they do not form part of an employee's salary in any event.

WHAT IS THE CORRECT NWE AS OF 17 NOVEMBER 2020?

1. Given the above findings, the Tribunal concludes that the calculation of the applicant's NWE in the sum of $1,702.49 as contended for by the respondent is correct.[12]
2. The calculations are made up as follows:

(a) The relevant period is from 15 to 28 October 2020; > > (b) The average number of hours worked by the applicant each week during the relevant period all were 37.5; > > (c) The applicant's average hourly ordinary rate of pay during the relevant period was $40.7954667 (being $3404.98-$345.32) divided by 75 = $40.7954667 per hour); and

3. Applying the formula prescribed by s 8 (1) of the SRC Act, the applicant's NWE for the relevant period of 15 to 28 October 2020 is as follows:

1. For the reasons explained above, the reviewable decision correctly calculated the applicant's NWE pursuant to s 8 (1) of the SRC Act for the relevant period namely 15 to 28 October 2020, and by reason of same, the reviewable decision is affirmed.

[2] Paragraph 2.1 of the respondent's Statement of Facts, Issues and Contentions of 27 November 2025.

[6] A1 73, JTB. Also attached to that email were the applicant's "Leave records for the period 2 February 2013 to 10 October 2021", "Attendance calendar for the period January 2013 to April 2024" and "Statement of earnings for the pay period 4 July 2013 to 25 April 2024".

[7] Paragraph 4.12 of the respondent's Statement of Facts, Issues and Contentions.

[8] [2014] FCAFC 122; (2014) 225 FCR 369 at [29].

[9] [2006] FCAFC 79; (2006) 91 ALD 17.

[11] [2009] AATA 371; (2009) 109 ALD 465 at [22].

[12] Paragraphs 4.35 and 4.36 are referred to.