1. The first decision under review (2016/1492) relates to a particular determination about a rehabilitation program.
2. By a determination dated 20 November 2015 the Department of Defence altered Mr Cook's rehabilitation program. Comcare reconsidered the determination in its decision dated 8 February 2016.[5]
3. In the November determination, the delegate determined the particular program as being the most suitable to assist Mr Cook return to work. The determination states "Please note that the final goal of this program is to assist you to obtain alternative paid employment." It is in similar terms to the previous rehabilitation program dated 17 September 2015 except for adding the terms requiring Mr Cook to attend appointments with a psychologist and his treating doctor.
4. The rehabilitation program[6] shows a "target start" date of 20 November 2015 and the target end date as 29 February 2016. Mr Cook's name and apparent signature appear on the form as being involved in the development of the program alteration.
5. The responsibilities of the rehabilitation program are summarised below:[7]
   • Attend all meetings as required up to 2 hours once per fortnight and maintain contact with rehabilitation provider.
   • Weekly email update of all job seeking activities undertaken.
   • Job seeking activities for 10 hours per week.
   • 20 hours per week of self-employment development activities.
   • Attend meetings with registered psychologist 1.5 hours per week over 3 weeks initially for adjusting to change ongoing life counselling.
   • Attend job interviews as offered.
   • Enrol and undertake intro to pHp and MySQL course (if approved).
   • Provide evidence of earnings from self-employment business.
   • Attend case conference with case manager and/or Comcare delegate.
   • Attend case conference with treating doctor and rehabilitation provider.
   • Attend meetings with treating doctor and forward medical certificate to rehabilitation provider.
6. Broadly, these responsibilities appear to relate to gaining employment, facilitating self-employment, facilitating training and addressing medical/and para-medical issues.

Section 42B of the Administrative Appeals Tribunal Act 1975 - power of Tribunal if a proceeding is frivolous, vexatious etc.

1. The respondent originally claimed that the current application is frivolous, vexatious, misconceived, lacking in substance and has no reasonable prospect of success. Comcare submitted that the application should be dismissed under s 42B(1) of the AAT Act.
2. The Tribunal has had regard to a decision of Deputy President Bean of Cook and Comcare (Compensation) [2016] AATA 371. That decision related to three earlier reconsideration decisions dated 14 July 2015, 31 October 2015 and 27 November 2015, respectively. Each of those decisions related to rehabilitation programs involving Mr Cook, the latest of which extended the program until 30 November 2015. Essentially they are decisions relating to rehabilitation programs which pre-date the current one.
3. In a decision dated 6 May 2016 Deputy President Bean dismissed each of the three applications for review pursuant to s 42B(1) of the AAT Act. Essentially the dismissal order was made in relation to the three applications on the basis that the Tribunal's jurisdiction was "limited to examining the questions of the content and duration of the [earlier programs] between the dates of 5 May 2015 and 30 November 2015."[8] The Tribunal concluded that as Mr Cook was not employed and that the earlier plans had been overtaken by the more recent plan, no purpose would be served by the earlier matters proceeding to a final hearing.
4. Significantly, the current application for review (2016/1492) was lodged before the decision was made by DP Bean. She observed [at 22]:

"... In the context of that application [2016/1492], it appears to me that the Tribunal has jurisdiction to consider whether the plan should have been or should be extended, and to also consider the content of that plan and whether this should be changed. I note [counsel for Comcare] accepted those propositions and also accepted that the new application has utility and therefore is not liable to dismissal pursuant to s 42B."

1. At the hearing of this matter, and noting the concession made by counsel for Comcare before Deputy President Bean, quite properly counsel for Comcare did not press for dismissal under s 42B of the AAT Act.
2. Having regard to the concession of counsel in this matter and noting the remarks of Deputy President Bean,[9] to the effect that application 2016/1492 is not affected by her decision and will remain on foot, the Tribunal considers it appropriate to consider and determine the substantive issues. It will not make a dismissal order under s 42B of the AAT Act.

1. The issue in this application relates to s 37(1) of the SRC Act which provides as follows:

"A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program."

1. That provision follows an assessment of the employee's capability of undertaking a rehabilitation program.[10]
2. The term "employee" is defined in s 5 (1) of the SRC Act. The relevant sub-clause (a) is set out below:

"(a) a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth...or under a contract of service or apprenticeship"

1. Importantly, s 5(9) of the SRC Act extends the definition of "employee" to former employees in certain circumstances. It provides:

"A reference to an employee in a provision of this Act that applies to an employee at a time after Comcare...has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee." [emphasis added]

1. There is no dispute that Mr Cook was capable of undertaking the rehabilitation program. The period of the program under consideration is that commencing on 20 November 2015 and ending on 29 February 2016 (referred to as "the rehabilitation program"). The determination under review is an alteration to Mr Cook's rehabilitation program.
2. The period of the rehabilitation program has expired. The review of this program only has utility if the Tribunal determines to extend the program up to the current time and in the event that it did so, it could determine whether the content of the program should be changed. There is no utility in retrospectively considering the issue.[11]
3. The Tribunal notes that Mr Cook does not believe that he is in employment consistent with his skill level and wants the rehabilitation program adjusted and extended to achieve that aim. He has proposed very specific decisions in relation to the terms of the program.
4. Mr Cook put forward comprehensive written submissions to which the Tribunal has had regard. In his oral submissions he indicated that his preference was for Commonwealth employment and he remarked that he was not being supported to obtain Commonwealth employment. [12]
5. Four significant things have occurred during, or post, the period of the rehabilitation program:
   • On 11 January 2016 Mr Cook was certified[13] fit to return to pre-injury duties with no restrictions by Dr E Staehr.[14]
   • On 11 January 2016 Mr Cook commenced employment with Drake Australia Pty Ltd as a production clerk employed under the Clerks Award 2010 level 2. He has been employed on a casual basis and has worked full time.
   • Mr Cook's rehabilitation program was closed on 29 February 2016 on the basis that: "Services finalised and rehabilitation program completed."[15]
   • In a reconsideration decision dated 10 March 2016[16] the respondent varied an earlier determination dated 9 February 2016, and decided that Mr Cook was no longer incapacitated for work as a result of the accepted condition and that he had no present entitlement to incapacity payments under s 20 of the SRC Act.

1. Mr Cook has ceased to be an employee of the Department of Defence by virtue of a voluntary redundancy taken on 15 November 2013. Accepting that Comcare incurred a liability in relation to Mr Cook under the SRC Act, an initial question is whether Mr Cook is eligible to be considered for a rehabilitation program under s 37(1) of the SRC Act. This in turn involves a consideration as to whether Mr Cook is an "employee" for the purpose of s 37(1) of the SRC Act. As already mentioned, s 5(9) of the SRC Act contains a broader definition of "employee" to include former employees-unless it appears from the particular language of the provision, that a contrary meaning is intended. Ultimately, the Tribunal has not examined this issue and has not reached a concluded view about the questions raised.
2. The Tribunal is aware of the AAT case of Cook v Telstra Corporation Limited.[17] That case also dealt with a scenario in which the applicant had taken a voluntary redundancy. The Tribunal in that case was of the view that the expression "employee" in ss 36 and 37 of the SRC Act[18] did not extend to former employees. The context of that case was that the applicant had elected to accept a redundancy package and left the respondent's employment of his own volition.[19]
3. The Tribunal accepts that different provisions of the SRC Act may evince different intentions as to whether or not former employees are encompassed within them.[20]
4. In the current case the original rehabilitation program commenced after Mr Cook had ceased employment with the Department of Defence by way of his voluntary redundancy. The particular alteration to the rehabilitation program the subject of this application for review occurred after there had been multiple extensions and alterations to the original program.
5. The Tribunal has some reservation as to whether s 37 of the SRC Act is applicable after a voluntary redundancy has been taken and the person has ceased employment with that employer. It is the voluntary redundancy aspect rather than the cessation of employment aspect, of itself, which gives rise to the Tribunal's reservation.
6. The Tribunal has chosen not to pursue this aspect of the matter as part of this review and will not express a concluded view on this aspect for the following reasons:
   • The issue was not ventilated at all in the documents filed as part of the review process.
   • The issue was not raised at the hearing by either party.
   • This is the last alteration of the original rehabilitation program which commenced in February 2015 and which has undergone several alterations prior to the current one.
   • The parties have proceeded to date on the basis of the availability of the rehabilitation provisions of the SRC Act.
   • Ultimately, the review application has been decided on a different basis which is further discussed below.
7. The Tribunal does not rely on this issue in reaching its decision.

1. The respondent submitted that the provisions of s 37 of the SRC Act do not apply as the accepted condition no longer results in Mr Cook suffering an incapacity for work or impairment.
2. There is some support for that view in the case of Chang v Comcare,[21] a decision of the Full Federal Court. In that case the Court was asked to recognise that there is a retrospective element in s 36 of the SRC Act. The Court was asked to declare in 1997 that an assessment should be made of whether or not Mr Chang was, in 1992, entitled to some form of rehabilitation program. It determined that it would be an exercise in futility to give a retrospective element to s 36. The Court observed:

"...if...he presently suffers an impairment or an incapacity that traces back to his RSI injury in 1990, then of course s36 exists today for his benefit and continues to give to him that statutory right to request an assessment in terms of s36. If today, however, fortuitously his health has improved to that state whereby he is no longer injured or incapacitated then, of course, there is no need for him to embark upon any form of rehabilitation program. ..." [emphasis added]

1. Whilst not addressing the specific issue of incapacity, the case of Pascoe [22]dealt with the failure of an applicant to undertake a rehabilitation program. In that case it was argued that the Tribunal had erred in holding that s 37(7) of the SRC Act no longer had any application because the contract of employment had ceased to exist. The Court decided that [at 6]:

"Even without an extended definition of the term 'employee', ...the consequence of such a view of the rehabilitation provisions would be surprising and destructive of the manifest intent of the Act to provide means for the rehabilitation of injured Government employees, as well as for their compensation while they are in an incapacitated or impaired state." [emphasis added]

1. The Tribunal has also had regard to the wording of s 37 of the SRC Act and, together with the comments in the case authorities of Chang and Pascoe, is of the view that the provision does not apply where there is no longer an incapacity suffered by Mr Cook.
2. The applicant referred to a number of authorities which dealt with rehabilitation and the concept of what is "suitable employment". The applicant also raised the issue of the obligation in s 40 of the SRC Act. As this provision has been considered in the context of rehabilitation programs the Tribunal will now address this issue.

Section 40 of the SRC Act-Obligation in relation to "suitable employment"

1. Section 40 sits within Part III Division 3 of the SRC Act which part is entitled "Rehabilitation". The section states:

"(1) Where an employee is undertaking, or has completed, a rehabilitation program, the relevant employer[23] shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment".

1. Section 40 creates no determination of itself. The respondent submitted:
   • that no determination or decision has been made under s 40 of the SRC Act.
   • the Tribunal has no jurisdiction in relation to any issue arising from the application of s 40 of the SRC Act.
   • a determination or decision under s 40 does not fall within the definition of 'determination' in s 60(1) of the SRC Act.
2. The Tribunal is of the view that s 40 can be relevant in the context of consideration as to whether a rehabilitation program should be extended. The Tribunal accepts that as a matter of principle (enunciated in s 40) it may be appropriate to determine that a program should be extended. The Tribunal also notes the reference in s 40 to the existence of the obligation in the context of an employee having completed a program.
3. The applicant has referred to a number of case authorities about s 40 in the context of rehabilitation programs[24] and in relation to other compensation matters.[25] It is not evident that the cases are on "all fours" with the circumstances of the applicant - particularly in relation to the facts about the voluntary redundancy and the absence of incapacity. In the circumstances of this case, and in particular the employment and the absence of incapacity, the Tribunal does not regard as appropriate to extend the rehabilitation program. Consequently, the Tribunal does not regard it as of utility to embark on an enquiry about s 40 in the absence of a determination that the program should be extended.

1. If the Tribunal is wrong in its conclusion that s 37(1) of the SRC Act is not available when Mr Cook does not suffer an incapacity, it has considered whether the program should be extended and altered in its content. It notes that Mr Cook has no right to participate in a particular program.[26] Rather, s 37(1) creates a discretion to make a determination. The question then becomes whether the Tribunal should exercise that discretion.
2. The respondent submitted:
   • that the rehabilitation authority has a discretion under s 37 as to whether an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.
   • that the rehabilitation authority has not made a determination that the applicant should undertake a new rehabilitation program, by way of a program with the objective of the applicant obtaining or being assisted to obtain another employment position, or otherwise.
   • the Tribunal has no jurisdiction in relation to the issue of the applicant's desired further rehabilitation.
3. The Tribunal notes the decisions sought by Mr Cook in his statement of issues, facts and contentions which relate to application 2016/1492. He seeks the following decisions:
   1. "... the re-engagement of the Applicant under s 2.23 of the Australian Public Service Commissioner's Directions 2013
   2. The Department of Defence is to develop policies and procedures to allow the Applicant (and previous employees who are participating in or have completed a rehabilitation plan) to be considered for vacancies in advance of the wider public.
   3. The Rehabilitation plan was not the preferable plan.
   4. Should the AAT choose not to recommend re-engagement or the Agency head not re-engage the Applicant the Respondent is to develop a rehabilitation plan that will as a minimum,
      • (a) Provide the Applicant 12 months work experience at the APS5 to EL1 level (not less than 3 months in any area) and, at Applicant's discretion, provide either;
      • (b) Job search assistance until suitable employment is obtained. Such assistance is to include
        • (i) alerting the Applicant of any pending approach to a labour hire company by the Department of Defence or Comcare (for suitable positions) nominating the Applicant as "specified person" where he is suitable and agrees.
        • (ii) considering the Applicant for any suitable vacancy before it is put to the wider public.
        • (iii) providing a referee to confirm the Applicants accomplishments.
        • (iv) Reviewing the Applicants job applications on request.
      • (c) for a period of 12 months assist the employee to become self-employed through advertising in internal publications (where advertising is already the practice) and the provision of subject matter expertise where it is available within the Department of Defence but,
        • (i) Excluding any advice specific to a particular competitive commercial opportunity.
        • (ii) Excluding any advice that is not unclassified in nature.
        • (iii) Is only required to be provided a request by the Applicant.
        • (iv) The respondent is not required to provide more than 5 hours of such expertise on average of the assistance period.
        • (v) Any advice is exclusive of any ancillary administration the department undertakes to provide that advice.

1. The Tribunal is of the view that it does not have the power to make a decision in the very specific terms sought in subparagraphs 1, 2 and 3 of paragraph 49 herein. Some relate to broad departmental policies. If the Tribunal is wrong in its conclusion, then it records that it declines to do so in the exercise of its discretion.
2. In relation to the decision nominated by the applicant that the rehabilitation plan was not the preferable plan, the Tribunal notes the detailed submissions made by Mr Cook. He desires assistance to obtain what he regards as suitable employment. Leaving aside the legal impediments identified by the Tribunal as to whether a rehabilitation program is available in the circumstances, the Tribunal is of the view that in all the circumstances it is not appropriate to extend the subject rehabilitation plan. The purpose of any plan in the future is quite different from the details outlined in the current plan. The original goal was to assist Mr Cook obtain alternative paid employment. That goal was appropriate and has been achieved. Any new gaol should be the subject of a new plan, if that plan is otherwise appropriate. The Tribunal also regards as relevant the fact that there is no longer any incapacity suffered by Mr Cook. In the exercise of the discretion the Tribunal does not consider it appropriate to extend the length of the program. In light of that conclusion, it is of no utility for the Tribunal to change the program's terms, retrospectively.
3. The Tribunal notes that Mr Cook suffered an incapacity for work at the commencement of the altered rehabilitation program but not at its conclusion. The Tribunal is inclined to the view that as Mr Cook was not incapacitated by the end of the program then in such circumstances the program should not be extended.
4. To his credit, during the term of the program, Mr Cook obtained employment which he has undertaken on a full time basis.

1. In the applicant's statement of issues, facts and contentions[27] the applicant made many additional submissions, including:
   • that there has been a lack of consideration of the matters in s 37(3) of the SRC Act and consideration of erroneous matters.
   • that there was a lack of genuine consultation.
   • the assertion that he was required to undertake more than 30 hours of activities and that that was unlawful in the context of the certification of his fitness for 30 hours.
   • apprehended bias-outlined in numerous ways including relating to past rehabilitation plans, the short nature of the plans, restriction of his ability to apply for employment by providing damaging references, various issues as to the conduct of the rehabilitation provider.
2. The Tribunal is of the view that it has no power to consider the issues Mr Cook has raised which are outside the scope of the review as to whether the decision made about the rehabilitation plan is the correct or preferable decision. It does not propose to make findings on the matters identified by Mr Cook which are outside the scope of the review.

1. The second application (2016/4632) relates to a denial of compensation payments under s 37(5) of the SRC Act.
2. Section 37(5) of the Act provides as follows:

"(5) Where an employee is undertaking a rehabilitation program under this section, compensation is not payable to the employee under section 19 or 31 but:

(a) if the employee is undertaking a full-time program--compensation is payable to the person of an amount per week equal to the amount per week of the compensation that would, but for this subsection, have been payable under section 19 if the incapacity referred to in that section had continued throughout the period of the program; or

(b) if the employee is undertaking a part-time program--compensation is payable to the employee of such amount per week as the relevant authority determines, being an amount not less than the amount per week of the compensation that, but for this subsection, would have been payable to the employee under this Act and not greater than the amount per week of the compensation that would have been payable under paragraph (a) if the employee had been undertaking a full-time program."

1. The determination the subject of the review relates to a claim for incapacity benefits under s 37(5) of the SRC Act. Mr Cook was seeking such payments under s 37(5) for all the time since his employment with the Department of Defence ended on 15 November 2013. He requested that two circumstances be considered:[28]
   • "This determination should include all periods where I was employed (in self-employment or on work trial as applicable) and undertaking a rehabilitation plan.
   • When I was not in employment but was participating in an approved rehabilitation plan."
2. Essentially on 3 June 2016 the delegate determined[29] as follows:
   • That after 15 November 2013 Mr Cook was paid compensation for incapacity under s 20 of the SRC Act. The delegate noted that in that time he had not been entitled to compensation under s 19 of the SRC Act.
   • Section 37(5) of the SRC Act only concerns payment of compensation for incapacity during a rehabilitation program where the employee was receiving incapacity payments under ss 19 or 31 of the SRC Act and does not affect employees who receive incapacity payments under any other section of the legislation (citing Daff and Comcare [2010] AATA 732).
3. Mr Cook outlined his reasons for disagreeing with the original determination. These are:
   • "s 20 applies to an employee who is retired from the workforce. The employee was retired from the workforce at the time of his termination on 15 Nov 13, but subsequently re-entered the workforce, undertaking job seeking activities, participating in a job trial and undertaking self-employment. [emphasis in original]
   • Where the employee is not undertaking a rehabilitation plan the employee would otherwise have been entitled to compensation under s 19. That Comcare has erroneously paid the employee under s 20 is of no consequence, they are stand alone determinations.
   • I note that paragraph 18 of DAFF v Comcare requires beneficial interpretation, it outlines principles that transcend that case and are a relevant consideration here."[30]
4. There is no evidence before the Tribunal that the determination that the payments were made under s 20 of the SRC Act has been formally challenged. Consequently, on the information before it, it accepts that Mr Cook was paid under s 20 of the SRC Act from 15 November 2013 with such payments ceasing on or about 9 February 2016.
5. Mr Cook asserted that s 37(5) of the SRC Act states the words "is retired". He submitted that he re-entered the workforce in December 2013 and he is no longer retired. He also submitted that the case of Daff has not been tested and, in his submission, is incorrect.
6. Mr Colgrave for the respondent submitted that, having regard to the definition in s 5 of the SRC Act,[31] in the context of s 20 of the SRC Act the expression "is retired" is from that employment. Having regard to the wording of s 20 of the SRC Act the Tribunal concludes that the expression "is retired" is in the context of the employment which gave rise to the incapacity for work. The Tribunal concludes that Mr Cook is retired for the purpose of s 20 of the SRC Act.
7. The Tribunal has had regard to the decisions of Daff and Comcare [2010] AATA 732 and Cook and Comcare (Compensation) [2016] AATA 371. Whilst the Tribunal is not bound by those decisions it is appropriate that the Tribunal has regard to them.
8. In the case of Daff the substantive issue concerned Mr Daff's entitlement to compensation payments while undertaking a rehabilitation program. Relevantly, the Tribunal Member in that case made the following remarks about s 37(5) of the SRC Act:

"There is no ambiguity in subsection 37(5). The subsection provides that compensation is not payable under section 19 and section 31 during a rehabilitation program. That bar does not apply to sections 20, 21, 21A or 22 concerning injured employees who are retired or who are institutionalised, and it does not apply to provisions concerning former employees under Part X. It is tolerably clear that the legislature intended that subsection 37(5) would only apply to injured employees who would, but for the operation of the subsection, have been entitled to compensation payments under section 19. It would have been a simple matter to extend the operation of subsection 37(5) to cover retired, institutionalised or former employees if that had been the intention. But that was not done. Was this an error or omission, as Mr Anforth suggests? I am satisfied that it was not. The clear intention expressed in the provisions to which I have referred is to treat retired, institutionalised and former employees differently, in respect to weekly compensation during a rehabilitation program, than other injured employees.

For example, if a retired employee's weekly incapacity payments are calculated under section 20 and the person undertakes a rehabilitation program under section 37, subsection 37(5) does not apply..."[32]

1. Mr Cook, in his request for reconsideration of the determination, referred to paragraph 18 of the Daff decision. He refers to "beneficial interpretation". The Tribunal is mindful that workers compensation provisions of the law should be "interpreted in accordance with its remedial and beneficial purposes" [paragraph 18]. In the Tribunal's view there is no ambiguity in the construction of s 37(5) of the SRC Act. There is specific reference to particular provisions and not others. There is no room to import a principle of interpretation which would effectively override the clear and unambiguous wording of s 37(5) of the SRC Act.
2. The Tribunal notes the observation of Deputy President Bean in the decision of Cook:

"However, as pointed out by the Tribunal in Re Daff and Comcare_, subs 37(5) applies only to an employee who would otherwise be entitled to compensation under ss 19 or 31. It does not apply to an employee such as Mr Cook whose incapacity payments would otherwise be calculated under s 20."[33]_

1. The Tribunal has considered the text of s 37(5) and the abovementioned cases. The wording of the provision is clear. It does not contemplate payments to persons whose incapacity payments are paid under s 20 of the SRC Act.
2. To the extent that Mr Cook takes issue with the payments being attributed to s 20 of the SRC Act, as opposed to s19, that determination is not before the Tribunal. Mr Cook also takes issue with the assertion that he is retired from his employment. However the fact remains that the payments to Mr Cook have been made pursuant to s 20 of the SRC Act (although he may dispute the basis of such payments) and as a consequence he is not entitled to payments under s 37(5) of the Act. In the terms of this review, which relates to s 37 determinations, the circumstances raised by Mr Cook do not permit the Tribunal to change the basis of the incapacity payments under s 20 of the SRC Act.

1. The Tribunal has reached the conclusion that each of the decisions under review is the correct or preferable decision. Consequently, it must affirm each of the decisions under review.

1. In relation to Application 2016/1492, the Tribunal affirms the decision under review dated 8 February 2016.

In relation to Application 2016/4632, the Tribunal affirms the decision under review dated 1 July 2016

I certify that the preceding 71 (seventy -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Raymond

........................[Sgd]..........................................

[2] Although it is apparent that there was rehabilitation undertaken from August 2013; Exhibit T3 at page 16.

[9] Cook and Comcare (Compensation) [2016] AATA 371, at paragraph [25].

[11] Chang v Comcare (1997) (unreported, FCA 97/823, 25 June 1997).

[12] He also indicated that he objected to job seeking activities in preference to self-employment but indicated that the self-employment is not now viable and that his only employment options are now private sector or Commonwealth employment.

[13] Mr Cook identified that the medical certificate recorded that the condition was to be reviewed again on 11 April 2016 and that that had not occurred.

[15] A File Closure Report was prepared on 26 February 2016 (T1 pages 93 -99) which effectively closes the rehabilitation program. It relevantly, reports that as from 11 January 2016 Mr Cook was certified fit to return to pre-injury duties and he has returned to "full time suitable new employment on a contract role through Drake recruitment".

[17] [2003] AATA 786.

[18] After considering those provisions and the whole scheme under Part III of the SRC Act.

[19] In Cook v Telstra Corporation Limited the Tribunal states at [17]: "While the liability to compensate the applicant persists, the respondent's obligation to provide rehabilitation under s 37 effectively ends if the applicant elects to accept a redundancy package and leave the respondent's employment of his own volition." The Tribunal is also mindful that in the case of Australian Postal Corporation v Pascoe [2005] FCA 289 the Federal Court held that the obligation to undertake a rehabilitation program under s 37(7) continued after the employee's contract of employment with the Commonwealth had ceased.

[20] In the case of Australian Telecommunications Corporation v Moffat [1992] FCA 105, the Federal Court was considering s 7(4) of the SRC Act and determined that it did include former employees. This is in contrast to the NSW Court of Appeal decision in relation to the Commonwealth Employees Rehabilitation and Compensation Act; Commonwealth of Australia v Holland (1991) 24 NSWLR 198 which was referred to by the Federal Court in Moffat. In Moffat the Court stated that it did not think the Holland decision supported the employer's argument and went on to say that if it does, the Court declines to follow it. The Tribunal notes that Holland was referred to in the decision of Cook [2003] AATA 786.

[21] Chang v Comcare (1997) (unreported, FCA 97/823, 25 June 1997).

[22] Australian Postal Corporation v Pascoe [2005] FCA 289.

[23] The term "relevant employer" is also defined in s 40(2) of the SRC Act and, in this case, relevantly is the Commonwealth.

[24] Department of Defence v Fox [1997] FCA 3; Comcare v Line [2002] FCAFC 321; Telstra v Slater [2001] FCA 149.

[25] Telstra Corporation Limited v Lyons [2003] FCA 1168.

[26] Chang-refer to Footnote 18--although it was referring in that context to s 36 of the SRC Act.

[29] Exhibit T3 at pages 16 and 17. This determination was affirmed in a reconsideration determination made on 1 July 2016 [Exhibit T3 at pages 21-24]. On reconsideration the review officer also referred to the AAT decision of Cook and Comcare [2016] AATA 371.

[31] Where the term employment is referred to in the context of the definition of "employee".

[32] Daff and Comcare [2010] AATA 732, [at paragraphs 20-21].

[33] Cook and Comcare (Compensation) [2016] AATA 371, [at paragraph 18(c)].