Morrow and Telstra Corporation Limited [2003] AATA 1199 (28 November 2003)

Last Updated: 28 November 2003

DECISION AND REASONS FOR DECISION [2003] AATA 1199

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2003/531

GENERAL ADMINISTRATIVE DIVISION	)
	Re	DARCY MORROW

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal

Mr IR Way, Member

Date 28 November 2003

Place Brisbane

Decision

The Tribunal affirms the decision under review.

(Sgd) IR Way

Member

CATCHWORDS

COMPENSATION - levels of overtime that should be applied in determining the applicant's normal weekly earnings

Safety, Rehabilitation and Compensation Act 1988 ss 4, 8, 19

Re Zarb and Comcare (1997) 48 ALD 718

REASONS FOR DECISION

28 November 2003

Mr IR Way, Member

1. This is an application by Darcy Robert Morrow for review of a decision of a Senior Claims Officer of GIO Australia dated 10 March 2003, affirmed by a Senior Case Manager of GIO, for and on behalf of Telstra, on 28 May 2003, that Darcy Morrow's Normal Weekly Earnings from 10 March 2003 are assessed at $801.65 per week.

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 - T13) and other documentary evidence as follows:

* Exhibit A1 Letter from Greg Anderson dated 7 May 1998

* Exhibit R1 Statement - undated - of Jim Wray

* Exhibit R2 Email from Kerry Hall to Sparke Helmore dated 21 October 2003 and attachments

* Exhibit R3 Bundle of documents - Manhour Reports 11 September  2003 to 24 September 2003

* Exhibit R4 Bundle of documents - Annual Form 25 - Administration Payroll Telstra

3. The applicant was represented by Mr EJ Johnston of Counsel and gave oral evidence. Mr D Rangiah of Counsel represented the respondent. Mr P Lollback gave oral evidence and Mr J Wray gave evidence by telephone.

4. The following background facts are not in dispute and in view of this, and on the material before it, the Tribunal finds:

(a) The applicant was born on 26 November 1945.

(b) Whilst employed by Telstra the applicant suffered a work-related injury to his left leg and knees in 1992 which, although causing him to be off work for ten weeks, did not affect his subsequent employment ability.

(c) On 23 August 1996, whilst employed by Telstra, the applicant suffered a work-related injury when a motor vehicle he was travelling in blew a tyre and rolled over.

(d) Subsequent to the accident and on 23 August 1996, despite some unsuccessful attempts to engage in light duties, the applicant did not return to work with Telstra.

(e) The applicant was retired on medical grounds on 16 October 1998 and has not worked since so retiring.

ISSUES AND LEGISLATION

5. The respondent does not dispute that pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") the respondent is liable to pay the applicant compensation in respect of the accident on 23 August 1996, which caused the applicant to suffer distal right radius fracture and laceration right wrist/arm/right ear and eye.

6. The applicant has since the accident been paid incapacity compensation payments and such payments are continuing.

7. The issue in this matter is of a relatively narrow compass, namely, what are the levels of overtime that should be applied in determining the applicant's normal weekly earnings?

8. The Act relevantly provides as follows:

Interpretation

"4(1) In this Act, unless the contrary intention appears:

`normal weekly hours', in relation to an employee, means the average number of hours (including hours of overtime) worked in each week by the employee in his or her employment during the relevant period as calculated for the purpose of applying the formula in subsection 8(1) or (2).

`overtime' includes:

(a) any duty on shifts or on Saturdays, Sundays or other holidays; and

(b) excess travelling time.

`relevant period' means the period calculated under section 9."

Compensation for injuries resulting in incapacity

19(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21 , 21A or 22 applies.

(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

NWE - AE

where:

AE is the greater of the following amounts:

(a) the amount per week (if any) that the employee is able to earn in suitable employment;

(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.

NWE is the amount of the employee's normal weekly earnings.

.....

Normal weekly earnings

8(1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:

[NH x RP] + A

where:

NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;

RP is the employee's average hourly ordinary time rate of pay during that period; and

A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.

(2) Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:

NH x OR

where:

NH is the average number of hours of overtime worked in each week by the employee in his or her employment during the relevant period; and

OR is the employee's average hourly overtime rate of pay during that period.

.....

(5) Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of the injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.

.....

(10) If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:

(a) .....

(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."

APPLICANT'S EVIDENCE

9. In his request for reconsideration of the decision under review, the applicant stated:

"I am requesting a reconsideration of the overtime component in my wages.

Attached is a record of overtime worked by one employee - but the work was available to all employees at all local depots - as I've spoken to employees of Lismore, Ballina and a CO9 relieving officer from Mullumbimby - they have all said that overtime has been available every weekend - Saturdays & Sundays - and is still currently available - since Christmas. I would have worked a similar amount of overtime as these employees I have spoken to.

I refer to the E.A. Work Agreement - Section Overtime rates. Section 7 under Full time employees - this is what it states - That Telstra may require you to work reasonable amounts of overtime. There was a message sent to all employees by Jim Ray stating such facts.

Please refer to my determination section 2 of the Safety Rehabilitation & Compensation Act 1988 where my normal weekly earnings at 21-12-2000 was $875.58 as reviewed by Melanie Netts dated 18/1/2001 with my weekly payment of compensation with overtime was $351.68.

With all overtimes being worked I feel I should still be entitled to the same component that I have been receiving prior to your review on the 10-3-2003 where my wage has dropped to normal weekly earnings $801.65 & weekly payment of compensation of $294.99 13-3-[?]..."

10. The Tribunal notes that the letter referred to by the applicant states:

"To Whom it May Concern

This is to provide confirmation that as an employee of Telstra in the area that Mr Darcy Morrow had previously been employed there has been regular overtime from the beginning of this 2003 year commencing in January (2 Saturdays and Public Holidays), February (3 Saturdays) and March (2 Saturdays). This does not include the working of rostered days off that have also been worked and after normal working days overtime."

and that the applicant, in giving his reasons for the application before the Tribunal said:

"Attached is a copy of a letter from one employee stating what he worked - it was not signed due to the fact that the redundancy factor is a big issue & could be detrimental to his employment."

11. In his oral evidence the applicant told the Tribunal that prior to the accident he had been principally involved in cable work but could also be involved in fixing product, particularly when storms and/or floods resulted in product faults or failures.

12. He said the latter activities often involved overtime. He also said that he thought overtime was more prevalent in December of each year. When asked about the overtime that he worked, he said that in the first part of the 1990s he did not work overtime, particularly when he was working after his 1992 accident. However, he said that prior to July 1996 he worked overtime of one Saturday per fortnight and from July 1996, one Saturday per month. It was the applicant's evidence that he only worked overtime when it suited him to do so.

13. In respect of his level of employment, the applicant said that at the time of his accident he was, in effect, a Level 3 Multi-skilled Communications Technical Officer working in what he described as the Richmond Construction Group, in the Ballina/Lismore area. He told the Tribunal that had he remained in Telstra he could now be graded at Level 4 or 5.

14. The Tribunal notes that Mr G Anderson, L7 Ballina, informed GIO on 7 May 1998 as follows:

"As requested in your letter to Darcy Morrow the overtime situation at Ballina is as follows.

Since August last year with the introduction of Director (new work dispatch system) we have increased our Overtime dramatically. Ballina's budgeted overtime is currently 137% over for the month of April. Most staff are working between one and two days overtime a fortnight with a few working more. Some staff (3) work no overtime at all. Before director was introduced we worked on average one Saturday a fortnight. Now, we seem to work whatever we can. This includes Saturdays, Sundays and after work."

15. The Tribunal also notes that the applicant, on 20 February 1998, wrote to Telstra in the following terms:

"I am writing in reference to my wages whilst on Workers Compensation.

Currently I am being paid one days overtime a month, included in my normal earnings. It has been brought to my attention by one of my co-workers and verified by my supervisor, Mr Greg Anderson, that I would, if I had not been on Workers Compensation, working at least one extra days overtime a month.

The reasons that I should be entitled to the extra days overtime is at the Ballina Dept [sic] overtime has been available to all workers almost every Saturday and most Sundays since early in 1997. I therefore feel that I am entitled to be paid for at least one extra days overtime a month, making my pay reflect a total of two days overtime."

EVIDENCE OF MR J WRAY

16. Mr Wray is the Telstra Area Service Manager for the North Coast Region of New South Wales and has worked for Telstra since 1967. Mr Wray said he knew the applicant.

17. The applicant's compensation claim underwent routine review by GIO and as part of this review, Mr Wray was asked in February 2003 to advise, if the applicant were still currently employed by Telstra, whether the overtime situation had changed since the last review (T6/14).

18. In response to this request, Mr Wray advised:

"I have reviewed the levels of overtime currently being worked by staff in my work area, and have considered what the above claimants would have been earning if they were fully fit, still employed in the area, and working in the same job roles.

This review has established that the average amount of overtime each of them would be working (all voluntary - ie at single time) would be:-

Morrow 2.21 hrs

.....

I would therefore like their overtime payments amended to reflect this new rate asap please."

19. Mr Wray told the Tribunal that he had based his assessment on the eight weeks prior to March 2003.

20. In his written report (undated - Exhibit R1) Mr Wray states:

"1. ....

2. The Applicant, at the time of his injury in August 1996, worked in the Richmond Construction Work Group. He was classified as a Communication Technician and performed the following tasks Cable Joint Rehabilitation.

3. In March 2003 there were seven employees in that work group who I considered to be comparable employees with the Applicant.

4. In response to a request for information from GIO, I prepared a short report setting out my calculation of the average amount of over time (T3). In that report, I considered that the average amount of overtime that would have been available to Mr Morrow was 0 hours per week.

5. I have considered this further and have been provided with a checklist for line managers concerning the calculation of overtime. That document is attached to my statement.

6. In the 8 weeks prior to me providing that report in March 2003, comparable employees worked 294 hours. This meant that in that 8 week period, on average, there were 0 hours of available overtime to each comparable employee.

7. On a weekly basis this amounted to 0.

8. The average hourly ordinary rate for the comparable employee is $24.05. Accordingly, as at March 2003, an amount of 0 hours was available to the employee which calculated to an additional benefit of $0.00. This amount would need to be added to the Applicant's normal weekly earnings, which I note amount to $883.83.

9. I have also conducted this calculation on 20 August 2003. Again, there are 7 comparable employees and during the previous 6 week period, 1550 hours was worked by those seven workers. As a consequence, on average, an amount of 221.42 hours was worked by each employee. This calculates to 36.9 hours per week which suggests that the average overtime worked by a comparable employee equates to 0.15 hours overtime per week. I note that this would suggest that in effect no overtime is currently payable to the Applicant.

10. I have examined the Applicant's file and note that prior to the injury, the Applicant was due to work on 24 August 1996. Overtime had been available on a roster system based on one Saturday per month since July 1996. Prior to that time, the roster was set at one Saturday per fortnight.

11. The Applicant did not previously work on a fortnightly basis. He did not work overtime during May or June, but was rostered to work on 13 July 1996 and 3 August 1996. It follows that whilst the Applicant did work overtime, he did not work all the overtime that was available, rather it seems that at the time of the injury he was working approximately one day per month.

12. I note in a record dated 12 December 1997, the Applicant could have worked one Saturday per fortnight if he wished, but did not do so.

13. Over the time period, available overtime has varied. During 2003, there has been very little overtime available to be worked by the comparable employees and, as such, I consider that overtime should not currently be part of the Applicant's normal weekly earnings."

21. Clearly this report is at odds with Mr Wray's earlier assessment when he determined the average amount of overtime for Mr Morrow, based on the eight weeks prior to March 2003 to be 2.21 hours. In his evidence by telephone, Mr Wray was unable to explain the difference (and indeed was unable to clarify the attachments to his report on which he based his conclusions).

22. In respect of the seven employees used by Mr Wray as a reference group of comparable employees, Mr Wray explained the significant restructuring and work practice changes that had taken place recently in Telstra and how he had arrived at the composition of the reference group. He described the group as workers who had generally stayed in the same construction work-stream (cable workforce) in which the applicant had been employed and (with one exception) were at a level of employment the same as would have applied to the applicant had he remained with Telstra.

23. He said this level was CT4 which is a class upgrade from the level of the applicant at the time of his accident.

24. The Tribunal notes that the one exception mentioned above was at a higher grade and was more skilled than the others. It should be said, at this stage, that for the purposes of this matter, the Tribunal accepts that data about the hours worked by members of this reference group and referred to later in these reasons for decision, can be considered without reference to the actual names of the seven employees. In view of this, and in order to safeguard the privacy of these employees, the Tribunal has ordered, pursuant to Section 35 of the Administrative Appeals Tribunal Act 1975, that the publication of the original documents produced at the hearing in relation to Exhibit R1 is prohibited to all persons other than the respondent and the Tribunal.

25. Furthermore, on all of the material before it, the Tribunal is satisfied that the seven workers selected by Mr Wray are employees comparable with the applicant and there is no need to disturb the composition of this reference group. In arriving at this conclusion, the Tribunal is mindful that the applicant, while knowing members of the group, could not assist the Tribunal in respect to their current duties. Furthermore, the Tribunal has accepted the respondent's view that the work pattern of the one member who has a higher grade/skill level is such that his inclusion in the group is more favourable to the applicant than would be his exclusion (in accepting the membership of the reference group the Tribunal has also taken into account the evidence of Mr Lollback, referred to later in these reasons for decision).

26. It was Mr Wray's evidence that in recent years there have been many changes in the way Telstra is organised and the way it conducts its business. He said that in about 1998 there was a flat percentage of overtime available, for allocation by the local manager, varying from 5% of budget to 10% of budget, the higher allocation being available for more specialist work. He said there had been significant changes since then and now there was minimal overtime available. He said that normal budget provisions made no allowance for overtime.

27. However, in the event of emergencies, including storm damage and medical recalls, a business case could be made for variations to budget which, if approved, would allow expenditures for overtime. He said that this was the case in the aftermath of recent violent storms and that, as a result, overtime was currently being worked in the Ballina area, particularly in the fixing of product rather than in the construction area.

28. Mr Wray said that the recent major storms were the first in the last three years.

29. Mr Wray told the Tribunal that Telstra expected that employees would do a reasonable amount of overtime. However, he stressed the point that employees could not be compelled to work overtime, it was always voluntary, and that within the context of current operations, was substantially less than it might have been in the past.

EVIDENCE OF MR LOLLBACK

30. Mr PR Lollback, Team Leader of the Richmond Delivery (Construction) Group, based at Lismore, gave oral evidence. He said he knew the applicant and was able to provide evidence about the work of each of the members of the reference group, referred to above. He said the members of the group generally were involved in major construction work, principally cable work, however they could be deployed to fix products as a result of damage from storms/floods.. In respect of the effects of the recent storms, Mr Lollback agreed that overtime was being worked. However, he could not provide details and thought that some employees would be working one hour extra each day. He said that he had been employed by Telstra for about thirty years and had been on the coast since 1985. He said there had been no peak loads because of storms during the past three years. However, he expressed the view that in general terms he would expect peak loads from storms and floods two or three times a year.

31. In respect of Telstra's overtime policy, Mr Lollback said that overtime was rarely given now because current management practice involved matching workload with resources without recourse to overtime. He said the organisation was more competitive, efficient and smarter and there was a conscious effort to keep overtime to a minimum to maintain efficiency gains.

32. In cross-examination, Mr Lollback was taken to Exhibit R2 which provided overtime payments made to various employees for the twelve months from payday 26 September 2002. He said he had only recently seen this document and that he had had no input to its compilation.

CONSIDERATION

33. It is common ground in this matter that pursuant to section 19 of the Act the applicant is entitled to compensation for the injury he suffered on 23 August 1996 and the Tribunal so finds.

34. Likewise there is no dispute between the parties and the Tribunal accepts that the applicant is entitled to have his claim determined within the provisions of section 8(1) of the Act.

35. At this stage, the question arises as to whether section 8(2) of the Act is applicable.

36. In respect of sub-sections 8(1) and (2) of the Act, the respondent referred the Tribunal to Re Zarb and Comcare (1997) 48 ALD 718, where Deputy President Burns held:

"(i) The definition of `normal weekly hours' in s 4 of the Act applied to ss 8(1) and 8(2). Accordingly, hours of overtime must be included when calculating the number of hours worked in each week. However, s 8(10) must be applied where appropriate to ensure injured employees are not better off than they would other have been.

Bortolazzo v Comcare (Fed C of A, No VG 866 of 1995, Heerey J, 12 June 1997, unreported), mentioned.

(ii) The words `required' and `regular' in s 8(2) of the Act were to be given their ordinary, everyday meanings. `Required' meant an imposition by the employer, in an authoritative fashion, on the employee to work overtime on a regular basis. `Regular' meant in a uniform or symmetrical pattern over time, which could be described as usual or customary."

and at paragraph 30 he said:

"(30) The tribunal's considered view is that the definition of `normal weekly hours' does apply to ss 8(1) and 8(2) and must be given its meaning as defined in s 4. Accordingly, the hours of overtime worked must be included when calculating the average number of hours worked in each week during the relevant period for the purposes of ascertaining the `NH' part of the formula in s 8(1) and in turn, it will take its place when s 8(2) becomes relevant. However, s 8(10) needs to be kept in mind and applied where appropriate to ensure that injured employees are not better off than they otherwise would have been."

37. Of relevance also is what Deputy President Burns said regarding the application of section 8(10) of the Act, namely:

"(28) While it is the intention of s 19(2) of the Act to compensate eligible employees in the first 45 weeks for the loss of their normal weekly earnings, it is not the Act's intention to provide employees with more than they would otherwise have earned or less than they would otherwise have earned and in this respect, the tribunal is mindful of the comments of Heerey J in Bortolazzo v Comcare (Fed C of A, No VG 866 of 1995, 12 June 1997, at 6, unreported)

I accept the submission of counsel for the applicants that the Act is social legislation which ought to be construed, in the event of ambiguity, liberally in favour of injured employees: McDermot v Owners of SS Tintoretto [1911] AC 35; Wilson v Wilson's Tileworks Pty Ltd (1960) 104 CLR 328; at 335; [1960] ALR 715

...The underlying policy is that an injured employee should not be worse off during the period of incapacity as a result of a work related injury. However, it follows conversely that the injured employee should not be better off.

(29) The answer to the dilemma above is, in the tribunal's view, to be found in s 8(10) of the Act (as extracted above). This subsection clearly acknowledges that calculations under preceding subsections can mean that the normal weekly earnings for a relevant period prior to an injury will exceed in certain circumstances the amount per week that the employee would have received but for the relevant incapacity. Such circumstances could arise under s 8(2) as outlined previously in these reasons and this has clearly been acknowledged by parliament in the provisions of s 8(10) which removes the opportunity for an injured employee to be better off by imposing a ceiling of not being able to receive more per week than they would have received had they not been incapacitated."

38. After careful consideration of all the material before the Tribunal, and following the reasoning given in Re Zarb and Comcare (supra), the Tribunal is satisfied that GIO, acting for Telstra, acted properly in March 2003 in undertaking a routine review of the compensation payable to the applicant. The Tribunal is also satisfied that the applicant was not required to work overtime on a regular basis and as such, section 8(2) of the Act has no application in this matter.

39. The crucial question then before the Tribunal is what is the number of hours overtime worked by the applicant that must be included in his normal weekly hours.

40. It is not entirely clear from the documents before the Tribunal what average overtime hours were being paid to the applicant prior to the review. Mr Wray (at T3/11) records the applicant as receiving $149.18 overtime per week at the time of review (and prior to review). It is reasonable to assume that this figure was derived using an average hourly rate of $20.576. It is possible then to calculate the equivalent days overtime per month, assuming a day to be 7.35 hours. Such a calculation results in the applicant being paid overtime of approximately 4.3 days per month. Using the same figure of 7.35 hours per day, it can be calculated that the 2.21 hours per week, which Telstra has determined should be paid to the applicant, is equivalent to approximately 1.3 days per month. This is not an insignificant reduction in the level of overtime being paid to the applicant and on an annual basis, at current rates, means a reduction in compensation of approximately $5,445.00.

41. As has already been indicated, Mr Wray's calculations of overtime are inconsistent and not at all clear. Nor was Mr Wray able to clarify the basis of his calculations in giving his testimony by telephone.

42. At T3, Mr Wray stated that the average amount of weekly overtime that the applicant would be working would be 2.21 hours, which he said was based on the assessment of like staff over the eight weeks prior to March 2003. In the body of his undated report (T3 paragraph 4), he said that the average amount of overtime that would have been available to the applicant was 0 hours per week. In a checklist formula attached to his report, Mr Wray calculates that comparable employees over "the last twelve weeks" would have worked 36.9 hours per week.

43. The Tribunal notes that the hours per week without overtime for Telstra employees is 36.75 hours and this effectively gives the applicant a weekly overtime of 0.15 hours. The other attachments to Mr Wray's report are incomprehensible and shed no light on the issue before the Tribunal. As such, while the Tribunal has accepted the seven workers selected by Mr Wray to form a satisfactory reference group, the rest of his evidence is of no assistance in understanding how the figure of 2.21 hours was determined.

44. Exhibit R2 is of some assistance in that it shows twelve month's overtime information, from payday 26 September 2002, for the seven members of the reference group.

45. An analysis of these figures shows that for the eight week period prior to March 2003 the total overtime worked by the seven members is 12.5 hours which averages out at approximately 0.23 hours per member per week. This bears no relation to the figure of 2.21 calculated by Mr Wray. However, it is more in accord with the figure of 0.15 given above.

46. If one were to assess the figures in Exhibit R2, on a twelve month basis from payday 26 September 2002, the reference group of seven worked 316.75 hours overtime, which gives an average weekly rate of 0.87 hours.

47. It should be noted that within the twelve month period covered by Exhibit R2, no overtime at all was worked by any member of the reference group from payday 17 July 2003.

48. The difficulty which the Tribunal faces is obvious.

49. Telstra has determined that the applicant, with effect 10 March 2003, should have 2.21 hours of overtime included in his normal weekly hours. There is no direct evidence before the Tribunal to support this figure.

50. Various other figures have been suggested. Mr Wray also suggested 0 hours per week in his undated report (Exhibit R1). The respondent has suggested 0.15 hours per week and this also accords with the checklist attached by Mr Wray to his report.

51. It appears that Exhibit R2 provides the most reliable data about the overtime worked recently by the reference group. As indicated above, a close analysis of this document on a twelve monthly basis gives an average figure of 0.87 hours per week and it would appear from the evidence of Mr Wray and Mr Lollback very little, if any, overtime was worked during this period because of storms or floods.

52. The Tribunal accepts that Telstra, since the time of the applicant's accident and since the time of his medical retirement from Telstra, has significantly changed its policy and practice with respect to granting and paying overtime. The Tribunal is satisfied that as a general practice, Telstra's operations no longer budget for other than minimal overtime to be worked. The Tribunal is satisfied, however, that in particular circumstances employees such as those in the reference group may be offered overtime work, these circumstances usually being related to storms, fires, floods and medical emergencies.

53. The Tribunal is mindful that until just prior to the hearing of this matter there had been no major storms or floods for some years, the country being in drought. However, at the time of the hearing that situation had been reversed and employees at Ballina were working overtime, although there is no direct evidence about the quantum of such overtime.

54. The difficulty then is to determine what is a fair and reasonable assessment of overtime that the members of the reference group actually worked.

55. To determine this figure on a narrow snapshot of employment flies in the face of the reality of the circumstances where storms and floods occur intermittently and at varying intensity. The Tribunal is of the view that a commonsense approach must be taken which, as best it can, attempts to average out over at least twelve months the overtime which an employee, such as the applicant, could be expected to work; and which takes into account that, on average, on the evidence of Mr Lollback, storms and floods can lead to overtime being worked on at least two or three occasions in any year. Clearly, it is not possible to arrive at precise figures in respect of overtime.

56. In this case, as has already been indicated, there has been a change in Telstra's overtime policy which has led to a reduction of the time which the applicant could expect to work overtime, compared with what applied at the time he left Telstra. The figures set out above indicate that the correct or preferable quantum of overtime in the application is something in excess of 0.87 hours per week, such an excess taking into account as best it can, the need to cater for storms and floods.

57. At the hearing of this matter, the Tribunal indicated that if, after analysis of the evidence before it, the Tribunal was not satisfied that it could determine this matter to its reasonable satisfaction, the matter would be re-opened so that further evidence and submissions could be made.

58. After careful consideration of all the material before it, and taking into account the views expressed by the Tribunal above, the Tribunal is satisfied that it can proceed to determine this matter without re-opening the hearing.

59. If one were to accept that, on average, the applicant worked overtime during three periods of emergency, on each occasion working three days overtime, then the hours of overtime so worked would be 1.28 hours per week. This excess added to 0.87 hours per week gives a total overtime figure of approximately 2.14 hours. This compares favourably to the figure of 2.21 which is the subject of this appeal.

60. On this analysis, which is based on assumptions which, in the Tribunal's view are generous to the applicant, the Tribunal has formed the opinion that while precise calculations are not practicable, the figure of 2.21 hours per week overtime which the respondent seeks to apply to the applicant, is a fair and reasonable figure and should not be disturbed.

61. The Tribunal therefore affirms the decision under review.

I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member

Signed: Kirsten Donnelly

Associate

Date/s of Hearing 30 October 2003 at Ballina

Date of Decision 28 November 2003

Counsel for the Applicant Mr EJ Johnston

Counsel for the Respondent Mr D Rangiah

Solicitor for the Respondent Sparke Helmore