//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2009] AATA 443
mixed. In application 2008/0463, the Tribunal set aside the decision and remitted the matter for reconsideration with a direction that section 8(10) had no application to Robertson's circumstances, and...
Robertson's compensation rate had been reduced on the basis that he would not have continued to earn the same overtime and allowances. The Tribunal found that his job was for the duration of a particular construction project and ended when the project was completed. Because section 8(10) assumes it is possible to compare compensation with earnings in employment that could have continued, the Tribunal held that it did not apply. The decisions about the rate were remitted for reconsideration. The decision ending incapacity compensation was not disturbed because Robertson no longer challenged it.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,331 words · generated 28/09/2026
In Robertson and John Holland Group Pty Ltd [2009] AATA 443, the Administrative Appeals Tribunal considered how section 8(10) of the (Cth) applied to compensation for incapacity when the injured worker had been employed on a project that ended while he remained incapacitated.
1 cited instrument linked from this judgment.
David Robertson was an experienced construction-industry rigger and leading hand. His offer of employment, dated 13 July 2006 and accepted the following day, identified the Tanna Coal Terminal Berth 4 Expansion Project at Gladstone. Under “Period or Task Employment”, it stated that his employment would run from 13 July 2006 and “will cease on the completion of the task assigned to you and agreed between you and [JH Engineering] associated with the [project]” ([10]). The Tribunal treated this as a contract for an uncertain period, ending on completion of the project task.
Robertson injured his back at work on 26 March 2007. Liability was accepted for an aggravation of a pre-existing prolapse at L5/S1, and he received incapacity compensation calculated using normal weekly earnings of $2,572.57 ([11]). The project work ended on 15 September 2007, while he was still incapacitated ([12]).
The respondent later reduced the normal weekly earnings used to calculate compensation. It first relied on section 8(10) to reduce the figure from 16 September 2007. On reconsideration, the amount was varied. Further decisions again reduced the figure, with one decision changing the effective date to 1 April 2008 ([13]–[17]). The dispute before the Tribunal concerned the rate of compensation during the relevant period, not whether Robertson had initially suffered a compensable injury.
Robertson also challenged a decision that he was no longer incapacitated from 8 August 2008. At the hearing, however, his counsel stated that he no longer pursued that part of the application and agreed that it could be affirmed ([17]). The Tribunal therefore dealt with the compensation-rate issue while leaving the cessation decision undisturbed.
A potentially complicating feature was that the offer letter named John Holland Engineering Pty Ltd as the employer, while the respondent was John Holland Group Pty Ltd. The footnotes record that the difference was not raised as an issue and that the Tribunal assumed it was irrelevant ([10] footnote 2; [11] footnote 3). The decision therefore did not determine the legal effect of that corporate-identity issue.
The Tribunal began with the statutory relationship between sections 8 and 19. Section 19 provided for incapacity compensation, with the amount calculated using normal weekly earnings. Section 8 provided the method for calculating those earnings, including adjustments for regular overtime and allowances ([3]–[5]). The dispute concerned section 8(10), which allowed normal weekly earnings to be reduced by an “excess” where the statutory comparison showed the employee would receive lower earnings in the specified circumstances.
Two questions arose: whether Robertson remained employed after the project ended, and whether section 8(10) applied to his circumstances at all ([19]). The respondent argued that he remained employed and that paragraph (a) applied. Robertson argued that the section was not engaged; alternatively, if it was engaged, he had ceased to be employed and paragraph (b) was relevant ([21]).
On the employment question, the Tribunal construed the offer letter. Although it described the duration in language the Tribunal called “somewhat vague”, the Tribunal found that the parties intended the contract to end on completion of the Tanna Coal Terminal Project ([23]). The project’s completion satisfied the contractual contingency, so the employment contract ended on 15 September 2007. No separate act terminating the contract was necessary ([22]–[24]).
That conclusion did not itself resolve the statutory question. The Tribunal considered whether section 8(10) could apply after a project-based contract ended. It accepted that the provision could adjust normal weekly earnings where continued employment was possible and the employee’s likely earnings could be assessed. For example, it referred to changes such as the cessation of shift allowances or a workplace restructuring affecting earnings ([33]). Those situations involve a basis for comparing pre-injury earnings with what the employee would have earned in employment that could have continued.
The Tribunal rejected the respondent’s proposed comparison with employees who worked on later projects. It considered that approach artificial because it could require an inquiry into which other employees had obtained further work, whether to consider all comparable workers or only those who stayed with the same employer, and how to establish their earnings ([32]). The judgment’s reasoning was not that hypothetical evidence is always irrelevant. Rather, the proposed comparison could not supply the particular kind of continuing employment relationship that the Tribunal read section 8(10) to require.
In reaching that view, the Tribunal drew on Comcare v Burgess [2007] FCA 1663. There, the Federal Court’s analysis of section 8(10)(a) distinguished a continuing contract from continuity of service and receipt of earnings. The Tribunal applied that distinction to section 8(10)(b), reasoning that it too contemplated the possibility of continuity of service and earnings in the employment in which the employee was engaged when injured ([29]–[33]). It also situated its approach within the statutory context, referring to the need to construe a provision consistently with the language and purpose of the Act ([28]).
The Tribunal therefore concluded that section 8(10) had no application because continuation of Robertson’s project-based employment was neither contemplated nor possible ([33]–[35]). It did not need to decide Robertson’s alternative arguments about whether the comparison could use other employees’ earnings, what figures should be compared, or whether a calculation might produce zero ([26], [35]).
Before this decision, the judgment described section 8(10) as a mechanism for adjusting normal weekly earnings where the employee’s likely earnings in specified circumstances were lower than the amount calculated under the earlier subsections. It noted that the Act was intended to account for predictable changes in remuneration, while also preventing an injured employee from being better off during incapacity than they would have been if not incapacitated. The judgment quoted Comcare v Thompson on the provision’s role in accounting for predictable changes in remuneration ([4]), and referred to the policy statement in Bortolazzo v Comcare that an injured employee should not be worse off, but conversely should not be better off ([25]).
The cited cases illustrated adjustments where employment continued in a meaningful sense. In Bortolazzo, shift allowances ceased after catering services were privatised, and the reduction was based on what the employees would have received if not incapacitated. The Tribunal also mentioned Re Lower and Comcare as another example involving shift allowances, and Re Whitby and Telstra Corporation Limited as involving a work restructure that altered entitlements ([25], [33]).
The judgment’s contribution was to address a different situation: the employment itself was tied to a project that had ended. The Tribunal held that section 8(10) was not a general mechanism for estimating what a worker might have earned through later or different employment. Its operation was confined to cases where continuation of the relevant employment could be postulated ([33]).
That is the decision’s stated reasoning, not a claim that all project-based workers fall outside section 8(10), or that the decision determines the meaning of every part of the Act. The judgment’s result turned on its construction of this contract and its reading of the statutory comparison. It also remitted the matter rather than fixing a final compensation rate, because the parties had not addressed a separate section 19(5) cap contention and the Tribunal was not aware of supporting evidence for the figures raised ([36]–[37]).
The decision lists the authorities it considered, but the supplied judgment contains no information about later decisions applying, distinguishing, or overturning Robertson. It is therefore not possible from this judgment alone to state how later courts have treated it.
At [23], the Tribunal construed the employment term as making project completion the endpoint: “Once the Project was completed the contingency was met and the contract of employment was at an end.” In plain English, the employment ended because the event specified in the contract occurred. The judgment did not require a separate termination notice to bring that task-based contract to an end.
At [33], the Tribunal stated its central construction: section 8(10) was “confined to situations where it is possible to say that an injured employee could have continued to be employed”. In plain English, the Tribunal considered that the section’s comparison only works where there is a meaningful possibility of the relevant job continuing.
Also at [33], the Tribunal said the subsection had no application where it was “not contemplated” that the employment would continue, and it was not possible for it to continue. This was the direct link between the contract finding and the compensation-rate issue: because the project employment could not carry on after completion, the respondent could not use section 8(10) to reduce the normal weekly earnings on the basis it advanced.
At [32], the Tribunal identified the practical difficulty in comparing Robertson with other employees who may have gone on to different projects. The inquiry could involve deciding which employees counted as comparable and finding out their earnings. The passage explains why the Tribunal preferred a construction based on the particular employment relationship rather than a broader hypothetical comparison.
Finally, [37] explains why the Tribunal remitted the matter. Although section 8(10) did not apply, a separate statutory-cap argument under section 19(5) had been raised without submissions or identified supporting evidence. Remittal left that matter for reconsideration rather than resolving it on an evidentiary record the Tribunal did not have.
The decision is most directly relevant to a compensation-rate dispute where an employee was engaged for a particular task or project, the contract made completion of that task the endpoint, the project ended while the employee remained incapacitated, and the employer relied on section 8(10) to reduce normal weekly earnings by estimating what the employee might have earned afterwards.
The contractual wording was important. The offer letter expressly connected the period of employment to the assigned task on the Tanna Coal Terminal Project ([10]). The Tribunal construed the term as ending the employment contract when the project was completed ([23]–[24]). A lawyer considering whether the reasoning is relevant to another case would likely want to check the exact contract language, whether the project or task was in fact completed, and whether the employment could have continued in some other form.
The decision also highlights the distinction between a continuing employment relationship and the possibility of continuing service and earnings. In Burgess, as described in this judgment, a contract could remain on foot while the employee was suspended, but the relevant statutory comparison concerned continuity of service and receipt of earnings ([30]). The Tribunal considered a similar focus on continuity relevant to paragraph (b) of section 8(10) ([33]).
The decision does not resolve every situation in which a worker moves between projects. It does not decide whether a different contractual arrangement, an express continuing-employment term, or evidence of a definite transfer to another project would change the analysis. Nor does it decide the alternative arguments Robertson advanced about calculating earnings if section 8(10) did apply, because the Tribunal found that the subsection was not engaged ([26], [35]).
The supplied judgment provides no account of later cases dealing with Robertson, and no later-treatment history can be established from this text alone. It would be unsafe to infer from the decision’s citation of earlier authorities that subsequent courts adopted or rejected its approach.
What can be identified from the judgment is the pre-existing authority it discussed. Bortolazzo v Comcare illustrated a reduction where shift penalties ceased and the comparison could be made with what the employees would have received if not incapacitated ([25]). Comcare v Burgess supplied the distinction between a continuing contract and continuity of service and receipt of earnings, which the Tribunal considered relevant to its own construction ([29]–[33]). Comcare v Thompson was cited in explaining that the statutory scheme could account for predictable remuneration changes ([4]). Re Lower and Re Whitby were mentioned as examples of adjustments to earnings where allowances or work arrangements changed ([33]).
Those are relationships to earlier authorities, not evidence of how later courts treated Robertson. Establishing subsequent treatment would require sources beyond the judgment supplied here.
The Tribunal did not determine the respondent’s alternative contention under section 19(5). It noted that the cap was raised in a late amendment, that neither party made submissions about its substance, and that it was not aware of evidence proving the relevant Average Weekly Ordinary Time Earnings of Full Time Adults figures ([36]–[37]). The possible effect of that provision was therefore left for reconsideration.
The Tribunal also did not determine Robertson’s alternative arguments about the operation of section 8(10) if it were engaged. Those included whether the subsection permitted comparison with other employees, whether gross earnings rather than overtime hours needed to be considered, and whether there was enough evidence to calculate the relevant amount ([26], [35]). The decision should not be read as resolving those questions.
The contract issue was determined on the wording of this particular offer letter. The Tribunal described the wording as somewhat vague but found that the parties intended the employment to end on completion of the project ([23]). The judgment does not establish how different wording, a later variation, or evidence of another contractual arrangement would affect the analysis.
Finally, the judgment does not determine whether the corporate difference between the named employer, JH Engineering, and the respondent, JH Group, had any legal significance. The footnote records that the matter was not raised by the parties and was assumed irrelevant for the proceeding ([10] footnote 2). That assumption was not a reasoned ruling on corporate identity.
This is general legal information, not legal advice. Zoe can make mistakes. Before you act on this, rely on it, or use any draft, have a qualified Australian lawyer check it.
"Where the incapacitated employee no longer is employed by the Commonwealth, a purpose of the Act is to make some provision (reflected in the compensation payable) for the employee's participation in what I will loosely describe as changes in remuneration that the employee would have enjoyed had he or she remained in the Commonwealth's employment. Section 8 of the Act evidences that purpose in the manner in which it allows for adjustments to be made to normal weekly earnings to take account of types of predictable salary increases and payments."
"(10) If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:
(a) where the employee continues to be employed by the Commonwealth or a licensed corporation - the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or
(b) where the employee has ceased to be employed by the Commonwealth or a licensed corporation - whichever is the greater of the following amounts:
(i) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;
(ii) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;
the amount so calculated shall be reduced by the amount of the excess."
You will initially be located at the CQPA RG Tanna Coal Terminal Berth 4 Expansion Project Gladstone located in Queensland; however you may be required to travel to work at other locations from time to time."
The letter noted that the employment "will commence on 13th July 2006 unless further agreed with you". Under the heading "Period or Task Employment" the letter reads:
"Your employment is for the period from 13th July 2006, and will cease on the completion of the task assigned to you and agreed between you and [JH Engineering] associated with the CQPA RG Tanna Coal Terminal Berth 4 Expansion Project."
The letter, by clause 24 makes provision for summary dismissal in a variety of circumstances. Additionally, clause 25 allowed for termination by notice or, in the case of JH Engineering, pay in lieu of notice.
"that John Holland Pty Ltd[[3]] [was] liable to pay ... compensation ... in respect of "aggravation of pre existing prolapse at L5/S1" ..."
Following the acceptance of liability it was determined that Mr Robertson was entitled to be paid compensation for incapacity on the basis of normal weekly earnings of $2572.57.
(a) did Mr Robertson continue to be employed by JH Engineering during the relevant period or had he ceased to be employed;
(b) does s 8(10) of the Act operate in Mr Robertson's circumstances and, if it does, how does it operate.
"Many contracts of employment contain terms which set a duration for the engagement. This duration may be a fixed term, such as six months or three years. Or it may be an uncertain period which is contingent upon a particular event (for example, the completion of the task on which the employee is working). When the agreed end date is reached, the contract will automatically expire without the need for either party to terminate it." [footnotes have been omitted]
"The underlying policy is that an injured employee should not be worse off during the period of incapacity as a result of work-related injury. However, it follows conversely that the injured employee should not be better off."
The ordinary operation of s 8(10) of the Act is neatly illustrated by the facts of that case. The applicants had been injured in the course of their employment as catering attendants at an Army Mess. Whilst employed by the Commonwealth in that capacity they had been paid shift allowances. However during the period of incapacity the Commonwealth had privatised the services to Army Messes and all catering attendants had ceased to be paid penalty allowances for shift work. Comcare's decision to reduce the amount of incapacity payments in reliance on s 8(10) of the Act was affirmed by the Tribunal. The reasoning adopted by the Tribunal was recorded in the reasons for judgment of Heerey J in these terms:
"... the normal weekly earnings of Mrs Saffron and Mrs Bortolazzo, calculated as required by s 8(1) of the Act to include shift penalties, would exceed the amount per week of the earnings that Mrs Saffron and Mrs Bortolazzo, who continued to be employed by the Commonwealth, would receive if they were not incapacitated for work. On the evidence we are satisfied that the applicants, if they were not incapacitated for work, would not have received shift penalties after 10 March 1994, because there were no duties or catering attendants GSO 2 or GSO 3 which required shift work ...
We find that the amount of normal weekly earnings of Mrs Saffron and Mrs Bortolazzo as calculated under s 8(1) is required by s 8(10)(a) to be reduced by the amount by which it exceeds the amount per week of the earnings that Mrs Saffron and Mrs Bortolazzo would have received after 10 March 1994 if they were not incapacitated for work. We find further that if they had not been incapacitated for work after 10 March 1994 Mrs Saffron would have received a salary of a GSO 2 without shift penalties and Mrs Bortolazzo would have received the salary of a GSO 3 without shift penalties."
Heerey J concluded that that construction was correct.
(1) that s 8(10) of the Act has no application and cannot be engaged where the undertaking that underpins the employment contract has ceased to exist;
(2) if s 8(10) of the Act had been engaged, then because Mr Robertson would not have been engaged in any employment, as the undertaking had ceased, he would have not earned anything hence the figure determined by reference to paragraph (b) must be zero with the result, it was said, that the amount calculated for normal weekly earnings could not be reduced;
(3) if s 8(10) of the Act had been engaged, it does not permit comparison with the earnings of other employees (the task undertaken by JH Group here), the subsection is directed to the actual and hypothetical position of the particular employee;
(4) if s 8(10) of the Act had been engaged, it is wrong to merely have regard to the overtime hours of other employees, what must be considered is the gross earning of other employees and there was insufficient evidence of those earnings to enable the Tribunal to determine the entitlements of Mr Robertson.
would have received had she not been incapacitated was nil. Thus, by application of s 8(10) of the Act, the normal weekly earnings were reduced to nil.
"[25] It seems to me that s 8(10)(a) contemplates a circumstance in which an employee (that is, relevantly here, 'a person who is employed by the Commonwealth', s 5(1) of the SRC Act) 'continues to be employed by the Commonwealth' in the sense that such a person continues to provide service to the Commonwealth and correspondingly continues to receive earnings from the Commonwealth. In those circumstances, s 8(10)(a) seeks to compare the normal weekly earnings (as determined) with the quantum of those corresponding earnings and reduce the normal weekly earnings for the purposes of the s 19(3) formula by the amount of the excess.
[26] Had the legislature intended that suspension of employment would bring about a reduction of normal weekly earnings to nil for the purposes of a formula quantifying the amount of weekly compensation under s 19(3) during a period of incapacity for work, the legislature would have expressly provided for that result. It did not do so. Although Ms Burgess continues to be employed by the Commonwealth in the sense that the contract of employment is 'on foot' and employment has not been terminated nor 'ceased' (see s 8(10)(b)), the continuity of employment contemplated by s 8(10)(a) is continuity of provision of service and receipt of earnings not simply a subsisting employer/employee relationship. A suspension of employment is not an event contemplated by the section as an element of its operation or purpose. Its purpose is to strike a comparison of pre-injury normal weekly earnings (otherwise determined by the earlier subsections of s 8) with continuity of earnings that would have been received based upon Ms Burgess's provision of service and receipt of earnings."
"4.15 If the tribunal does not accept the Respondent's position [sic] regarding the application of section 8(10), it should be noted that pursuant to section 19(5), the Applicant cannot receive more than 150% of the Average Weekly Ordinary Time Earnings of Full Time Adults during this period which at the relevant time was $1,669.05 per week."
A similar contention, with slightly different figures, is advanced in relation to the period from 13 July 2008.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: .....................Signed................................................
[1] [2000] FCA 790; 100 FCR 375, at [3].
[2] It is an unexplained curiosity of the case that the employer is not the respondent, JH Group, however as the parties did not raise this as an issue I assume it to be irrelevant.
[3] Again, no issue has been taken about the discordance between the identity of the entity determined to be liable and the respondent.
[4] Creighton, B, and Stewart, A., Labour Law, 4th ed., The Federation Press, 2005 at [15.06].
[5] [1997] FCA 515; 75 FCR 385 at 388.
[6] See e.g. Rieson and Another v SST Consulting Services Pty Ltd [2005] FCAFC 6; 142 FCR 482 at [14] and the cases there cited.
[9] As in Bortolazzo and in Re Lower and Comcare [2008] AATA 352; 102 ALD 195.
[10] As in Re Whitby and Telstra Corporation Limited [2009] AATA 316.
Bortolazzo v Comcare [1997] FCA 515; 75 FCR 385
Comcare v Burgess [2007] FCA 1663; 164 FCR 66
Comcare v Thompson [2000] FCA 790; 100 FCR 375
Re Lower and Comcare [2008] AATA 352; 102 ALD 195
Re Whitby and Telstra Corporation Limited [2009] AATA 316
Rieson v SST Consulting Services Pty Ltd [2005] FCAFC 6; 142 FCR 482
In application 2008/0463, the Tribunal set aside the decision and remitted the matter for reconsideration with a direction that section 8(10) had no application to Robertson's circumstances, and ordered costs. In application 2008/4098, it set aside and remitted the part of the 7 August 2008 decision that varied the 8 July 2008 decision, on the same direction; otherwise it affirmed the decision. It ordered costs insofar as they related to the rate of incapacity compensation.