Question 1: Was the allowance included in normal weekly earnings for the purposes of s 8(10)(b)?
21 In my opinion, Comcare's submissions should be rejected. They give no effect to the distinctions in wording within s 8(10). The first concept is that in s 8(10)(a). There the calculation of normal weekly earnings is related simply to whether employment of the employee by the Commonwealth continues. The expression "continues to be employed" affects the ascertainment of the calculation provided for in s 8(10)(a), namely "the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work". This is in contradistinction to the phraseology in each limb of s 8(10)(b). Each limb commences with the concept of continuation of employment, but adds, "… in the employment in which he or she was engaged at the date of" either the injury (s 8(10)(b)(i)) or the date on which the employment by the Commonwealth ceased (s 8(10)(b)(ii)).
22 I am of opinion that "the employment in which he or she was engaged" at either time specified in s 8(10)(b)(i) or (ii) is the actual employment or job that the employee was engaged in at that date. The two limbs of the sub-section contemplate that that employment or job can, and often will, be different depending on whether one is considering the date of the injury or the date of cessation of employment. Mr Simmons' employment in the Operational Response Group at the time of his injury required him to comply with the terms of the determination. In particular, at that date he had been "… assigned duties as an operational employee in the ORG" by force of a decision made under cl 7.2. Whilever he was assigned duties as an operational employee in the Operational Response Group, his job was to be available and to comply with the other requirements in the determination applicable to him as such an employee. That job was "… the employment in which he was engaged at the date of the injury" within the ordinary and natural meaning of s 8(10)(b)(i).
23 In contrast, in August 2011, he was employed in the Counter Terrorism Unit, and that was "the employment in which he … was engaged, the date on which the employment by the Commonwealth … ceased" within the ordinary and natural meaning of s 8(10)(b)(ii).
24 It is obvious that Mr Simmons' two "employments" or jobs in which he was engaged on the respective dates of his injury and transfer to the New South Wales Police Service were different. Those employments had different terms and conditions, including different duties, responsibilities, wages and entitlements. The Commonwealth was continuously his employer, through the agency of the Australian Federal Police, but Mr Simmons was required to perform different jobs in each position for that employer before and after 8 February 2010. As Dowsett J said in John Holland at 185 FCR at 584 [66]:
"If the Act contemplates a connection between an injury or disease and the employee's employment, then it must be possible to determine the ambit of such employment, and whether the circumstances in which the injury arose were within that ambit. This suggests a focus on what was done rather than upon trade, calling or any system of classification." (emphasis added)
25 In my opinion when s 8(10)(b)(i) refers to an employee continuing to be employed by the same employer in the employment in which he or she was engaged at the date of the injury, it refers simply to that person being employed to perform the same job with the same relevant incidents of employment in that job. That is, a person could only have "continued to be employed … in the employment in which he or she was engaged" at a particular time if what he or she did as work for the employer was the same at each end of the period of the continuum. If the employee was, for example, promoted or demoted in that period then that change must be treated as bringing about a different employment in which the employed is engaged.
26 The complex qualifying expression "continued to be employed by the Commonwealth … in the employment in which he or she was engaged" in each limb of s 8(10)(b) is in marked contrast to the simplicity of the criterion invoked in s 8(10)(a). The latter criterion, "continues to be employed by the Commonwealth", does not refer to any description of the nature of the employment. Thus, the criterion of the actual employment engaged in or, job, used in s 8(10)(b) is intended to contrast with, although it may be the same as, the actual situation that obtains at the time when the employee ceases employment. Nonetheless the criteria identified by the Parliament within s 8(10)(b) are different, and deliberately different, to the criterion referred to in s 8(10)(a). The latter simply requires a continuity of the identity of the employer and its relationship with the earnings the employee would have received if he or she had not been incapacitated for work.
27 Dowsett J explained in John Holland at 185 FCR at 586 [74]-[76], s 8(10)(a) is concerned with a notional inquiry that commences with the employee's actual current employment and compares that to what his or her earnings would have been in that employment had he or she not been injured. His Honour observed that that inquiry would involve consideration of how, in the circumstances, the employee would have been employed "… including consideration of whether he or she would have continued to perform the same duties as were being performed at the time of the accident". (Those observations are also relevant for the purposes of consideration of question 2.)
28 In contrast, as his Honour noted, s 8(10)(b)(ii), involves different considerations. It assumes the continuation of either the pre-injury employment or other actual employment undertaken subsequent to the injury with the same employer. For the purposes of s 8(10)(b)(ii), decision-maker is not directed to assume that the employee was incapacitated. Rather, the inquiry under the second limb is about the actual employment at the date the employee ceases employment and the earnings that would have been derived had he or she continued subsequently in such employment. That involves a comparison between actual earnings adjusted to reflect changes in circumstances between the cessation of employment and the date of calculation.
29 Likewise, the first limb of s 8(10)(b) contemplates the notional continuation of the previous employment because, as Dowsett J said (185 FCR at 586 [76]):
"The purpose of the notional extension is to identify likely earnings in the event that such employment had been so extended."
30 His Honour also said there that the section did not contemplate notional formulation of conditions of employment that had never existed. The decision-maker is simply required to take the actual terms of the employment applicable to the employee at the time of the injury "… and enquire as to likely earnings pursuant to those terms as at the date of calculation".
31 Comcare argued that when one looked at Mr Simmons' change of heart on 8 February 2010, his consequent likely earnings calculated under s 8(10)(b)(i) would not include payment of the allowance. In my opinion that is not what s 8(10)(b)(i) provides. Rather, the section looks, as a matter of fact, at what would have been payable to the employee had he or she continued in the job he or she had at the date of the injury. The inquiry created by the section is about what the employee ought to have been paid as his or her normal weekly earnings from that date to the time at which the calculation is undertaken. But, s 8(10)(b)(i) does not look at what actually happened to the employee after the injury, or consider how he or she would have reacted. Obviously, if his or her employment, job or position came to be abolished, some inquiry would have to be made as to how that abolition would have impacted on the terms and conditions of his or her employment from that time until the relevant time for calculation of the normal weekly earnings.
32 In contrast, s 8(10)(b)(ii) projects forward from the actual employment of the employee at the time he or she ceased to be employed to the time at which the relevant calculation must be made. In Mr Simmons' case that would commence in August 2011 when he ceased to be employed in the Counter Terrorism Unit. Thus, for example, if after the employee ceased to be employed, the normal weekly earnings payable to a person in his or her pre-injury job became less than those payable to a person in the job the employee had when he ceased employment because of, say, award changes, the figure used to calculate his or her compensation would change from that ascertained under s 8(10)(i) to that under s 8(10)(b)(ii) and vice versa.
33 The Tribunal reasoned that Mr Simmons' normal weekly earnings as calculated under each of ss 8(10)(b)(i) or (ii) would be the same. In doing so, it made an error of law. It failed to differentiate that the two limbs of s 8(10)(b) operate differently for the reasons which Dowsett J, with Spender J's agreement, clearly stated in John Holland at 185 FCR at 586 [75] and [76]. Indeed Dowsett J pointed out (185 FCR at 586 [77]) that there the employee had no entitlement to overtime under his contract and accordingly, at the cessation of the contractual term for which he had been employed, he would not be entitled to be paid anything for overtime for the purposes of s 8(10)(b)(ii). That result is in contradistinction to Mr Simmons' entitlement to the allowance up to the time he ceased to be a member of the Operational Response Group. At the time of his injury he was entitled to the allowance. And, if he had continued to be employed in his role in that group, then on the finding that the Tribunal made, he would have continued to be paid the allowance. For some reason, Mr Simmons appears to challenge that outcome under question 2. For the reasons I will give, I reject that challenge.
34 For these reasons, the tribunal erred in its construction of s 8(10) in respect of question 1. That question was on a question of law, namely the proper construction of the Act. The parties agreed that if I arrived at the construction above, Mr Simmons' normal weekly earnings for the purposes of s 8(10)(b)(i) is a matter of calculation. Accordingly, there would be no purpose in remitting that matter to the Tribunal to make such a calculation in accordance with law.