1. This is an application for review of a decision of the Veteran's Review Board ('VRB') dated 29 September 2023.
2. The VRB's decision was partially favourable to the applicant. The VRB decided to set aside an earlier determination of the respondent and substitute a decision that the applicant's pension be paid at 100% of the general rate from 21 February 2023. However, the VRB rejected the applicant's claim for the intermediate rate of pension. It is that aspect of the VRB's decision that the applicant is challenging in this review.
3. In order to qualify for a pension at the intermediate rate the applicant must meet the requirements in s 23 of the Veteran's Entitlements Act 1986 (Cth) ('VEA').
4. The relevant parts of that section are as follows.

(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab) the veteran had not yet turned 65 when the claim or application was made;

(b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and

(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:

(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis;

(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking - if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

1. The respondent concedes that the applicant satisfies the requirements of paragraphs (1)(aa) and (aab) because he made a claim for a disability pension and an application for an increase in pension on 21 February 2023 and had not yet turned 65 when the claim was made.
2. For reasons that will become clear shortly it is unnecessary to consider paragraph (1)(c) and for that reason I have not extracted it here.
3. The critical paragraph in issue is (1)(b) and the deeming provisions in subsection (2).

1. The documentary evidence exhibited at the hearing is outlined in the annexure to these reasons.
2. The applicant and his treating GP, Dr Summerscales gave oral evidence and were cross-examined by the respondent.

1. There is no dispute that the following are the relevant facts.
2. The applicant served in the Australian Regular Army from 26 March 1989 to 24 June 2012. He has a number of accepted conditions that have resulted in him qualifying for a disability pension at 100% of the general rate.
3. From December 2017 the applicant was employed by Rolleston Coal Pty Ltd as a heavy vehicle operator.
4. On 18 November 2021 the applicant entered into a flexible working arrangement ('FWA') with his employer that reduced his hours significantly. The terms of the FWA are set out at T31. It is described in the following terms:

Your Flexible Work Arrangement as requested to undertake a 50% job share arrangement with Christopher K.... will commence on 9 February 2022. Approval for this arrangement will be for an initial six (6) month trial period and will be reassessed on 8 August 2022.

You will continue to work a 12.5 hour continuous day/night rotating roster whilst working under this Flexible Working Arrangement. For the duration of this Agreement, you will work on A Crew Crew (sic) working one month on, one month off. Christopher will cover the month you are off under the same arrangement.

1. That arrangement is ongoing.
2. The applicant works 1 week on (night shift) of 12.5 hours per day then takes one week off. Following the week off he does another week on (day shift) of 12.5 hours per day and then takes 5 weeks off. When rostered on the veteran works 87.5 hours per week. He works a total of 175 hours over an 8-week cycle. This amounts to 21.875 hours on average per week.
3. The usual work pattern for people working the same job as the applicant but without an FWA in place, is to work on average 43.75 paid hours per week. The work is undertaken on a one week on, one week off basis, working 12.5-hour shifts on each day of the 'on' weeks.
4. The applicant's arrangement is 50 per cent of the full-time hours he was working before entering into the FWA.

1. Pursuant to paragraph (1)(b), the applicant must establish that:

the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently.

2. Paragraphs (2)(a) and (b) set out when that requirement will not be fulfilled. It will not be fulfilled if the veteran undertakes or is capable of undertaking work of a particular kind for 50 per cent of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis.
3. The evidence establishes that a person engaged in the applicant's work full time would work 43.75 paid hours per week (on average).[1] The applicant currently works 50 per cent of that - 21.875 hours (on average). Consequently, he is undertaking the work for 50 per cent of the time ordinarily worked by persons engaged in his kind of work on a full-time basis.
4. In these circumstances paragraph (1)(b) is not made out. The applicant does not qualify for the intermediate rate pension as he does not meet all the necessary requirements in s 23.
5. At hearing the applicant pressed, although somewhat faintly, that because the mine closes for two days over Christmas, it is possible that he is working slightly less than 50% of the time ordinarily worked by persons engaged in his kind of work on a full-time basis. I am unsure whether that is mathematically correct, but even if it is the case, I am satisfied that the applicant is capable of undertaking this kind of work for 50% of the time ordinarily worked by persons engaged in work of that kind. This is an alternative basis provided for in s (2)(a) for finding that the requirements for the intermediate rate are not made out.

Respondent's solicitor Australian Government Solicitor

A4 Fatigue Self-Assessment Tool 3 September 2024

A5 Screenshot of Coal Mining Safety and Health Act 1999 (Qld) s 39

A6 Extract of Coal Mining Safety and Health Act 1999 (Qld) ss 39 to 41

A7 Report of Dr Kerry Summerscales, general practitioner

A8 Applicant's Statement of Facts, Issues and Contentions

R3 Briefing letter to Dr Nicholas Burke, consultant occupational physician dated 25 September 2024

R4 Report of Dr Nicholas Burke, consultant occupational physician dated 15 October 2024

R5 Briefing letter to Dr Nicholas Burke, consultant occupational physician dated 10 April 2025

R6 Supplementary report of Dr Nicholas Burke, consultant occupational physician dated 8 May 2025

R7 Briefing letter to Dr Nicholas Burke, consultant occupational physician dated 9 June 2025

R8 Supplementary report of Dr Nicholas Burke, consultant occupational physician dated 2 July 2025

R9 Briefing letter to Dr Nicholas Burke, consultant occupational physician dated 1 August 2025

R10 Supplementary report of Dr Nicholas Burke, consultant occupational physician dated 11 August 2025

R13 Respondent's Amended Statement of Facts, Issues and Contentions

R14 Document at pages 367-382 of the Joint Tender Bundle

[1] A1, Applicant's statement dated 3 February 2024