The worker has at all material times been in receipt of weekly payments of income maintenance. By letter dated 28 February 1997, he was advised that the Corporation intended to review the quantum of his weekly payments of income maintenance. He was advised that he could within 14 days of the receipt of the letter forward any written representation that he wished to make in respect of the proposed review. He had been provided with various reports pertinent to the review. The letter also invited the worker to contact the case manager should he have any queries in relation to the notice. The worker instructed a solicitor to respond to the notice and the worker's solicitor did so by letter dated 6 March 1997. The solicitor's letter asserted amongst other things, that the worker `is virtually unemployable and should be treated as totally incapacitated ... [and] his income maintenance should be maintained at the current level'.

By letter dated 1 April 1997 the Corporation made a determination in accordance with Section 38(7) to reduce the worker's entitlements to income maintenance to $297.70 per week on the basis that he was able to earn in suitable employment $245.40 per week working part-time as an automatic/semi-automatic machine operator/attendant or light process/ assembly worker. Apparently in making that determination the Corporation relied amongst other things upon reports that had not been provided to the worker at the time of the invitation for him to make written representations in respect of the review.

The gravamen of the worker's complaint was that it necessarily follows that the worker was denied natural justice in responding to that invitation because he was not provided with all of the material upon which the compensating authority subsequently made its determination.

In rejecting that argument, the learned Deputy President against whom this appeal is made, concluded that the worker had a meaningful opportunity to make his representations because he had in his possession at the material time a substantial body of material upon which to base his submission to the Corporation. And, moreover, in substance the additional material was essentially `update' material that did not fundamentally alter the picture painted by the material already in the worker's possession.

In our view, in determining whether or not there has been compliance with the requirements of Section 38(3)(b) consideration has to be given to the overall scheme of the Act.

The determination of a compensating authority upon a Section 38 review is not conclusive. A worker is entitled to challenge it and if a notice of dispute is lodged within time, the notice is automatically suspended: Section 36(4). Thereafter, the determination can continue to be suspended pending resolution of the dispute `without prejudice to the worker's financial position in the meanwhile': Section 36(4)(b).

The worker can make further representations in the notice of dispute. And, the compensating authority is obliged to consider those matters in reconsidering its decision: Section 91(1)(b).

If the decision is confirmed, or varied in a way that does not satisfy the worker, the dispute will be referred for conciliation at which time an independent Conciliation Officer will ensure, subject to Section 92(2) that the worker has access to all relevant evidentiary material: Section 92(1)(b) and that the issues in dispute are identified: Section 92A(a).

If the dispute remains unresolved the worker is entitled to argue his or her case before an Arbitration Officer by way of arbitration and/or a Presidential Member by way of judicial determination: Sections 92D(1)(a) and (b); 94(b).

In other words, the scheme of the Act provides that before the notice can take effect the worker will have every opportunity to know what case he or she has to meet, the capacity to challenge it, and the continued receipt of weekly payments as they were prior to the receipt of the notice.

That being so, it would be wrong in our view to apply Section 38(3)(b) too strictly. That is not to say that the section can be ignored altogether. We reject the submission that the extensive scope for review afforded by the dispute resolution process means that even the most extreme non-compliance with the provision could be excused. If the requirements of the section are not met, that will render any subsequent notices bad. But that said, provided the worker is given sufficient information and sufficient time to enable an informed and meaningful response to the issues that are the subject of the proposed review, the requirements of this section should be regarded as satisfied.

The learned Deputy President proceeded on this basis. Thus, his conclusion cannot be said to have resulted from a misapprehension of the relevant legal principles. It was a result that was open on the facts as he found them to be. That being the case, given that there was evidence to support his Honour's findings and as this appeal is limited to a question of law: Section 86(1), there are no grounds upon which we can or in any event should intervene. For these reasons, the appeal should be dismissed.

DECISION INFORMATION SHEET AND PRINTING REQUEST

Author: Gilchrist DP Date Received: 10/12/99

Member(s): Jennings P, Gilchrist DP, McCouaig A/DP

EXACT DESCRIPTION OF DECISION TO BE FILLED IN BY OPERATOR ONLY

1st DRAFT [ x ] DATE: 10/12/99 OPERATOR: Nina Mullally

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