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Hillman and Military Rehabilitation and Compensation Commission [2011] AATA 38 (28 January 2011)

Last Updated: 31 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 38

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/1306

VETERANS' APPEALS DIVISION

)

Re
GAVIN HILLMAN

Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal
Deputy President S D Hotop

Date 28 January 2011

Place Perth

Decision
The Tribunal affirms the decision under review.

..........[sgd S D Hotop]........

Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employee – incapacity payments – “normal weekly earnings” – applicant served in Australian Regular Army – applicant posted to Special Air Service Regiment (SASR) – applicant suffered injury in course of service in 1999 – applicant medically discharged in December 2007 – applicant received incapacity payments – applicant’s SASR posting due to expire on 21 January 2008 – applicant received Special Forces Disability Allowance (SFDA) while posted to SASR – applicant would not have continued to be posted to SASR after 21 January 2008 if he continued to serve in Army – applicant would not have continued to received SFDA after 21 January 2008 – SFDA not included in applicant’s normal weekly earnings for purpose of calculating incapacity payments after 21 January 2008 – decision under review affirmed


Safety, Rehabilitation and Compensation Act 1988 (Cth), s 5(1), s 5(2), s 8(1) and s 8(10)


REASONS FOR DECISION


28 January 2011
Deputy President S D Hotop

INTRODUCTION

  1. Gavin Hillman (“the applicant”) enlisted in the Australian Defence Force (Army) on 23 March 1982 (when he was 17 years of age), was posted to the Special Air Service Regiment (“SASR”) in 1985, and voluntarily discharged in 1988.
  2. He re-enlisted on 29 January 1991 and was again posted to the SASR. He continued to be posted to the SASR, with the exception of the period from 19 January 2004 to 15 January 2006, until he was medically discharged on 4 December 2007. During this period in which he was posted to the SASR, he was entitled to receive the Special Action Forces Allowance (“SAFA”) comprising a “qualification and skill” allowance and “disability” allowance, but, during the period from 19 January 2004 to 15 January 2006 when he was posted out of the SASR to the Special Forces Training Centre, he continued to be entitled to receive the “qualification and skill” allowance but not the “disability” allowance.
  3. In 1999 whilst posted to the SASR, the applicant injured his back in the course of service in East Timor, and he subsequently claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”). On 5 November 2001 a delegate of the Military Compensation and Rehabilitation Service, the predecessor of the Military Rehabilitation and Compensation Commission (“the respondent”), accepted liability under the SRC Act to pay compensation to the applicant for an injury, namely, “L5/S1 broad-based disc bulge with left posterior disc protrusion” sustained on 14 December 1999.
  4. Following the applicant’s medical discharge from the Army on 4 December 2007 he claimed incapacity payments under the SRC Act and, on 23 July 2008, a delegate of the respondent made a determination regarding the amount of such incapacity payments on the basis that the applicant’s “normal weekly earnings” (for the purposes of the SRC Act) included the SAFA disability allowance – now called the Special Forces Disability Allowance (“SFDA”) – for the period from 5 December 2007 until 21 January 2008 but not thereafter because his SASR posting was due to end on the latter date.
  5. On 12 February 2009 a delegate of the respondent made a “reviewable decision” affirming the abovementioned determination.
  6. On 31 March 2009 the applicant applied to the Tribunal for review of the reviewable decision of 12 February 2009.

THE ISSUE

  1. The issue for the Tribunal’s determination is whether the applicant’s “normal weekly earnings”, for the purpose of calculating the amount of his ongoing incapacity payments under the SRC Act from 5 December 2007, continued to include the SFDA on and from 22 January 2008.

THE RELEVANT LEGISLATION

  1. Division 3 of Part II of the SRC Act, which deals with compensation for injuries resulting in incapacity for work, contains provisions which prescribe formulae for calculating the amount of incapacity payments under that Act. An element of those formulae is the amount of the employee’s “normal weekly earnings”.
  2. The phrase “normal weekly earnings” is defined in s 4(1) of the SRC Act to mean:
“ the normal weekly earnings of an employee calculated under section 8”.

Section 8 relevantly provides:

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

  1. In s 5(1) of the SRC Act the word “employee” is defined to mean, among others, “a person who is employed by the Commonwealth”, and s 5(2) relevantly provides:
“ ...
(b) a member of the Defence Force; ...
...
shall, for the purposes of this Act, be taken to be employed by the Commonwealth, and the person’s employment shall, for those purposes, be taken to be constituted ... by the person’s performance of duties as such a member of the Defence Force ...”

Section 5(9) provides:

“ A reference to an employee in a provision of this Act that applies to an employee at a time after Comcare, an administering authority, a licensed authority or a licensed corporation has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee.”

THE EVIDENCE

  1. The evidence before the Tribunal comprised:

THE EVIDENCE OF THE APPLICANT

  1. The applicant’s evidence-in-chief is set out in his written statement, dated 18 December 2009, as follows:
“ 1. I am the Applicant in this matter.
  1. I commenced service with the Army in March 1982. I commenced basic training in Wagga Wagga.
  2. I was accepted for service in the SAS regiment in June 1985 and was attached to 1 Squadron SASR.
  3. I discharged from the SAS in 1988. Essentially I did that because I was only 23 years old having joined the Army when I was 17. I felt like I wanted to see a bit of the world before I had a lifelong career with the Army.
  4. It was probably always my intention to rejoin the Army at some stage but I simply wanted to see a bit of civilian life before spending my entire life in the Army.
  5. In January 1991 I re-listed in the SASR and became a Corporal in May (sic). I had various operational deployments until 1999 when I sustained my first back injury whilst serving in Timor. After that initial back injury I was never the same in a physical sense and always, to some extent, had my employment tasks restricted by my back injury.
  6. If it were not for that back injury I would undoubtedly have remained an operational soldier at the rank of staff sergeant, serving as a soldier.
  7. After my back injury of December 1999 I had to look for other options within the SAS as in a career sense as I realised that I was no longer going to be able to fulfil all of the physical requirements of a serving soldier.
  8. I did not want to leave the SAS but I knew that I was going to have to try to find some kind of alternate job because of my initial back injury. Because of my rank and experience training was the logical career path for me to attempt to go down for me to remain as a serving soldier in SASR.
  9. In July 2000 I had my first back operation and in 2001 I recommenced employment doing training work in the SAS.
  10. In 2002 I was deployed to Afghanistan but again was doing a management kind of role as a warrant officer. I was involved in operations at a level in Afghanistan operating liaisons between American and Australian forces.
  11. In 2003 I was again doing operational work in the Middle East.
  12. During all of these operations my back had been giving me ongoing trouble. I realised for certain by the end of 2003 that my days as a fighting soldier were numbered although I was very keen to stay with the SAS. I enjoyed the lifestyle, the men I was working with, and that was what I wanted to do, and that was my chosen career but I was becoming even more aware that my back was limiting my physical abilities.
  13. I took a job with the Special Forces Training Centre as a training development officer. This position was based in Perth at the SAS barracks, as a detachment to the SF Training Centre which is primarily based in Singleton, New South Wales.
  14. In August 2005 I had a further back operation which didn’t really have any good effect on my back and in January 2006 returned to SASR. During this time I had a variety of duties within SASR which required me moving from one position at Swanbourne barracks to another building and squadron.
  15. In January 2007 I took long service leave and had a knee operation which was also a service injury which had been an ongoing issue as a result of the work that I was doing. After that knee operation it became clear that I was to be medically discharged.
  16. During the 2007 year steps were being taken to discharge me as appears from my service documents. The medical discharge arose as a result of principally my back but in addition my knee injury. The medical position was that after this length of time I still had not made any recovery and it was clear that I was not going to recover to be able to remain a serving SAS soldier.
  17. At the time my medical discharge was organised I was a serving SAS soldier. I had not expressed to anybody any intention to leave the SAS and nobody had told me that I was due to be posted out. Whatever limitations I had as a soldier arose as a result of compensable conditions and if it were not for my medical discharge I would have remained as a serving soldier in the SAS.
  18. I did not know about any alleged posting out of the SAS until DVA told me in February 2008 that my disability allowance was to be removed from my incapacity payments. Whilst serving as a soldier and at all times since then I have not had any discussion with any serving officer about leaving the SAS. This was after they had already been paying me the full amount of Special Action Forces Allowances since my discharge in December 2007.
  19. ... At all of the review (sic) that I had of my career I did not express any desire to leave the SAS as I enjoyed the work and the income.” (Exhibit A1)
  20. In cross-examination the applicant gave evidence to the following effect:
  21. In re-examination the applicant said that none of those other possible postings would have “made use of” his Special Forces Group career of over 20 years’ duration, and that, in any event, there had never been any discussion with him regarding such other postings.

THE EVIDENCE OF THE WITNESSES CALLED BY THE APPLICANT

Major Christopher Johns

  1. In his examination-in-chief Major Johns affirmed the contents of his written statement, dated 11 June 2010, as follows:
“ 1. I am the executive officer (second in command) of the SAS Regiment in Perth.
  1. I have known Gavin Hillman since 1985.
  2. When I met him he was part of the reinforcement cycle. I was the staff member on his selection course.
  3. Gavin separated from the Australian Defence Force in December 2007 as he was medically unfit for service. This evidence is based upon the assumption he had remained fit for retention in the Australian Army.
  4. Gavin attended and successfully completed the Special Air Service selection course in June 1985. He then completed the reinforcement suite of courses to achieve full Special Air Service qualification. He was posted to 152 Signals Squadron as a dual qualified Royal Australian Signals Corps and Special Air Service member.
  5. At the time this was the preferred trade status for 152 Signals Squadron members. Throughout Gavin’s service in the Defence Force he has maintained his currency in both of his trades.
  6. I have seen advice provided by the Soldier Career Management Agency that Gavin has no further appointments available to him either at the Special Air Service Regiment or in the wide Special Operations Command. This is correct for his trade with the Royal Australian Signals Corps but does not take into account his wide employability in Special Operations Command as a qualified Special Air Service member.
  7. The employment of Regular Army members outside primary trade is routine across the organisation. There have been a number of soldiers who have held dual Royal Australian Signals Corps and Special Air Service qualifications who have transferred to non-corps positions within Special Operations Command. I know of at least two former members of 152 Signals Squadron who are Special Air Service qualified and have been widely employed in the Special Forces positions. One is currently serving as a Lieutenant Colonel.
  8. I believe the Special Air Service Regiment Chief Clerk, Warrant Officer Class 2 Rhonda McInnes provided the Soldier Career Management Agency with posting information for Gavin Hillman in his employment classification within the Signals Corps only. In my view she did not take into account Mr Hillman’s broad employability as a Special Air Service qualified soldier.
  9. During his tenure in the Defence Force, Gavin Hillman’s employment and operational service was highly regarded. Had he not been medically discharged in 2007, he would have remained in a position within the Special Forces Group as his experience and qualifications as a Special Air Service soldier would have allowed him to be posted to a variety of positions within the Special Forces Group.
  10. In summary, I believe that had he not been injured Mr Gavin Hillman would have been widely employable both at the Special Air Service Regiment and the broader Special Operations Command in a range of training and operations appointments. This employment could have continued until he chose to separate from the Australian Defence Force.” (Exhibit A4)
  11. Major Johns confirmed that he adhered to the view expressed in para 10 of his above statement. He said that there are cases where Special Operations Command personnel are employed outside their “core appointment”. He said that, if the applicant had wished to stay within the Special Forces Group, they would have commenced “negotiations” with his career adviser at the Soldier Career Management Agency and expressed their wishes and submitted a case for him to be employed within the Group “outside his specific core appointment”. He added that, in such circumstances, “it is usually the case that our wishes have been granted”.
  12. In cross-examination Major Johns acknowledged that the “prime focus” of the applicant’s Army career was as a signaller. As regards alternative positions within the Special Forces Group, Major Johns opined that the applicant could have been employed in a training role and, given his “very good practical knowledge of the operations process”, he would have had appropriate experience to fill the position of an operations warrant officer or even an operations captain. He acknowledged, however, that such a position would have had to be available at the relevant time but he added “with some confidence” that “there would have been positions that we could have found for him”.

Major Richard Elderfield

  1. In his examination-in-chief Major Elderfield affirmed the contents of his written statement, dated 22 September 2010, as follows:
“ 1. I, Richard Elderfield, as a Major in the Australian Regular Army, was posted to the position of Officer Commanding 152 Signals Squadron (OC 152 Sig Sqn), the Special Air Service Regiment (SASR), from January 2006 to December 2007.
  1. During 2007, Gavin Hillman was posted to 152 Sig Sqn as an ECN 266 Warrant Officer Class ll.
  2. As OC 152 Sig Sqn in 2007, I was involved in the consultation process to determine the 2008 posting plot for RASigs solders across Special Operations Command (SOCOMD). Other key stakeholders in this annual consultation process are: the Squadron Sergeant Major (SSM) 152 Sig Sqn, the Regimental Sergeant Major (RSM) SASR, the SOJ6 SOCOMD and the Career Manager (CM) RASigs at the Soldier Career Management Agency (SCMA).
  3. At the time of these deliberations in 2007 I knew that Gavin Hillman was working through the process of a medical discharge from the Army due to enduring problems with his back. I knew that Gavin would not be available for continued service in 2008 due to his anticipated medical discharge, therefore, he was not considered by SOCOMD when determining the 2008 posting plot for Senior Non-Commissioned Officers (SNCOs).
  4. Had Gavin not been in the process of a medical discharge, I would have negotiated strongly for his services to be retained within SASR or SOCOMD due to his extensive skills, knowledge and experience of Special Operations and more specifically, Signals support to Special Operations.
  5. There are a great many factors in play when it comes to a posting cycle. For an accurate prediction of Gavin’s potential posting in 2008 to be made, the entire SNCO posting plot for RASigs would need to be recreated and considered in detail from all perspectives – including the position of each of the individuals affected by the posting plot. Without doing this I do not believe that anyone can categorically state that had Gavin not been medically discharged, he would or would not have been posted to a SOCOMD position in 2008. One needs to bear in mind however the usual methods of staffing in the unit to draw on a conclusion about what would have been likely.
  6. I have seen evidence from Major Janine Franks and Warrant Officer Class One Paul Dunbavin which indicates that had Gavin’s personal circumstances not been as they were in 2007, he would have been posted from SOCOMD to a non-special forces position within RASigs. They are both adamant that this would have been the case and that there were no available positions for Gavin within SOCOMD in 2008.
  7. I am not aware of any precedent where a senior Special Forces RASigs soldier has been posted from SOCOMD against the advice of SOCOMD and at the sole final discretion of the Soldier Career Management Agency in order to satisfy a written policy described in a Defence Instruction. I am aware that Senior Special Forces RASigs soldiers have been posted to positions outside SOCOMD, however, this has only occurred to achieve the best outcome for the Army, SOCOMD and the soldier. SOCOMD deliberately strives to achieve flexibility in the management of the careers of Special Forces qualified members, in order to ensure the long-term retention by SOCOMD of the substantial investment which has been made in their skills, knowledge and experience.
  8. As OC 152 Sig Sqn in 2007, I was Gavin’s immediate supervisor and therefore directly involved in his circumstances. I believe my intimate knowledge of SOCOMD’s SNCO career management strategies and processes would have influenced that of an external party such as Major Franks. I acknowledge that Major Franks would have greater knowledge and experience of wider Army soldier career management procedures. The evidence tendered by Major Franks appears to be a direct interpretation of the relevant Defence Instructions, applied rigidly and in hindsight.
  9. In my view, attempting to look back on the myriad issues surrounding the 2008 annual posting cycle, to accurately predict Gavin’s posting (had he not been in the process of a medical discharge) is speculative and impossible to achieve accurately.
  10. I have seen evidence from Major Janine Franks and Warrant Officer Class One Paul Dunbavin which refers to the suitability of Gavin Hillman to transfer from the ECN266 employment classification to ECN353 to enable him to be employed in a non-RASigs position within SOCOMD. This possibility was not considered at the time, therefore, I consider that all evidence related to Gavin’s potential to transfer from ECN266 to ECN353 to be extraneous to the core question of whether he would have been retained within SOCOMD in 2008. Should Gavin have sought to transfer from ECN266 to ECN353, assuming that he was not being medically discharged, this request would have been considered in view of the circumstances at the time. If supported, he would have been required to complete any necessary courses to secure the change in employment classification.
  11. It is not uncommon for soldiers to be employed outside of trade within SOCOMD due to the broad skills, knowledge and experience of Special Operations which Special Forces qualified members attain – this is especially true of a senior soldier such as Gavin who had served within the Special Operations community for more than 20 years. Precedents have been set within SOCOMD for soldiers to be employed outside of trade in order to meet service, SOCOMD and individual needs.” (Exhibit A5)
  12. In cross-examination Major Elderfield acknowledged that the Soldier Career Management Agency (“SCMA”) has ultimate authority to raise posting orders, but he added that there is a consultation process. As regards para 12 of his statement, Major Elderfield said that, once a soldier is posted to a unit, it is often up to the discretion of the Commanding Officer of that unit as to where that soldier is employed, and SCMA approval is not necessary for a soldier to be “employed outside of trade” within Special Operations Command (“SOCOMD”). He added that such an outside of trade deployment may last up to 12 months.

THE EVIDENCE OF THE WITNESSES CALLED BY THE RESPONDENT

Major Janine Franks

  1. Major Franks affirmed the contents of her written witness statement, dated 12 April 2010, as follows:
“ 1. I, Janine Franks, am a Major in the Australian Regular Army, posted to the Soldier Career Management Agency (‘SCMA’). I am currently temporarily filling the position of Career Manager, Royal Australian Corps of Signals (‘RASigs’) and have been in this posting since Dec 2009. I have been posted to SCMA since Jan 2007, and have served in the Australian Defence Force since Jan 1989.
  1. I make this statement from my own knowledge and from information and beliefs based on my examination of the records held by SCMA in relation to the applicant, Warrant Officer Class 2 (retired) Gavin Hillman (8241623) (‘the applicant’).
Royal Australian Corps of Signals
  1. The role of the Royal Australian Corps of Signals is to provide communications, information systems and electronic warfare (CISEW) support to the Army and the Australian Defence Force, to allow command and control of deployed forces in peace, crisis and conflict on any operation anywhere in the world. It is a respected and vital part of the Army.
  2. A Communications Systems Operator is a member of the Royal Australian Corps of Signals. The Communications Systems Operator is a solder who operates a variety of communications equipment in a number of different environments. There are operators supporting the Special Air Service Regiment, Commandos, and Regional Force Surveillance Units.
  3. Communications Systems Operators can also support the Infantry, and a number of other Corps, working on foot or from Landrovers and Armoured Vehicles. There are operators on large Naval Vessels manning global communications networks, whilst other operators work with Aviation units and provide the special communications required for ground to air communications.
  4. Communications Systems Operators also provide support to deployed headquarters to ensure battlefield commanders can communicate with deployed units. Operators communicate using satellite terminals, hand held and desk top data terminals, radios operating in different frequency bands, security equipment and other specialised communications equipment designed for specific tasks.
Special Operations Command (SOCOMD)
  1. The Special Operations Command (‘SOCOMD’) is a command within the Australian Defence Force. SOCOMD was previously referred to as the Special Forces Group. Units under the direct control of SOCOMD include:
Special Forces Disability Allowance
  1. Up until late 2007, officers serving within the SCOMD were entitled to receive two allowances:
  2. If a member was posted out of a SOCOMD unit, their entitlement to the SAFA Disability allowance ceased immediately Their entitlement to the SAFA Qualification and Skill allowance would remain for a three year period beginning on the day on which the member ceased duty with a SOCOMD unit.
  3. On 9 August 2007, the SAFA Qualification and Skill allowance was rolled into a soldier’s pay and became known as Special Forces 1 (‘SF1’). As with the SAFA Qualification and Skill allowance, the SF1 ceases to be payable three years after the member ceased duty with a SOCOMD unit.
  4. On 13 December 2007, the SAFA Disability allowance became known as the Special Forces Disability Allowance (‘SFDA’). As with the SAFA Disability allowance, the SFDA ceases to be payable if a member ceased duty with a SOCOMD unit.
  5. There are different rates of allowances depending on the SOCOMD unit a soldier is posted to. For example, SASR versus Special Operations Headquarters versus 2nd Commando Regiment versus non SOCOMD units.
Career Management and Postings within the Royal Australian Corps of Signals
  1. In the position of Career Manager, Royal Australian Corps of Signals within SCMA, I am responsible for:
  2. In performing these responsibilities, I:
  3. In making posting decisions, I comply with Defence Instructions (Army) PERS 47-11 ‘Career management of soldiers in the Australian Regular Army and Army Reserve’ (‘the Instruction’). Annexed hereto and marked ‘A’ is a true copy of this Instruction. The Introduction to the Instruction explains that effective career management is essential for the Army to achieve its mission, and that career management encompasses the process through which appropriately qualified, experienced and competent soldiers are selected for Army appointments.
  4. In planning postings of members, the service needs are the main driver of posting decisions, followed by career development needs (of both the relevant member and of other members) and lastly personal preferences and desires of the member (see paragraphs 6f and 16 of the Instruction).
  5. The Instruction provides that, where practical, postings will be based on consultation with the member concerned, their Commanding Officer or superiors, and superior headquarters where appropriate (see paragraph 6g). As a general rule, I would usually consult with the member concerned before making a posting, as well as consulting with their commanders and/or supervisors. A member would normally be contacted by telephone and/or email prior to a formal posting order being issued.
  6. Consultation with members also occurs through face to face Career Guidance Interviews, which are conducted annually. The intention of these career management (sic) interviews is, if possible, to plan a member’s posting 18 months ahead of time (see paragraphs 12 and 17 of the Instruction).
  7. When a posting is approved, a formal posting order is issued. As a general rule, members are to be given as much notice as possible of an intended posting and posting orders should be issued at least six months prior to the effective date of posting (see paragraph 64 of the instruction). However, as service needs are the primary driver of posting decisions and service needs are constantly changing, posting plans need to be readjusted at times and changes can and do occur at short notice.
Applicant’s Service and Posting History
  1. I have reviewed the applicant’s service records and they reveal the following service, posting and promotion history:
Career Guidance Interviews
  1. On or around July 2007, I conducted a Telephone Career Guidance Interview with the applicant. I am informed that a copy of the Career Guidance Interview form relating to that interview is contained in the Supplementary Documents filed with the Tribunal at page 470. There is nothing recorded in those notes to suggest that the applicant would have remained posted to SASR or another unit in SOCOMD after his posting ended on 21 January 2008.
  2. On 31 August 2006, Major Stokes conducted a Career Guidance Interview with the applicant. I am informed that a copy of the Career Guidance Interview form relating to that interview is contained in the Supplementary Documents filed with the Tribunal at page 455. Under the section ‘CM’s [Career Manager’s] General Comments/Follow up action required’, the following notations appear.
‘Continue to serve at SASR until required to move on.
Med cat will improve with time.
Happy to retain as long as it complies with SASR unit requirements.
Won’t go to PAC until MEC upgrade – not interested at this time.’
  1. These comments suggest to me that the Career Manager raised with the applicant that, despite his desire to remain in SASR, his posting to SASR was always dependent on the unit’s requirements and the service need.
Applicant’s posting after 21 January 2008
  1. As stated earlier, the applicant’s posting to the SASR was due to end on 21 January 2008. According to the records held by SCMA in relation to the applicant, at the time the Career Manager would have started considering the applicant’s next posting. The applicant had a medical separation from the Army pending and scheduled for December 2007. In these circumstances, the Career Manager would not have planned any follow on posting for the applicant after the end of his posting to SASR.
  2. I have reviewed the applicant’s service records and believe that, had he not been medically discharged in December 2007, his posting to the SASR would have ceased after 21 January 2008, for the following reasons:
  3. Having regard to the development needs as set out above (both of the applicant and other members), the applicant would have been posted to a unit outside of the SOCOMD in January 2008, had he not been medically discharged. Possible postings include the Defence Force School of Signals, the Royal Military College, Land Warfare Centre, Defence Network Operations Centre, Defence Material Organisation and Army Recruit Training. Greater promotional opportunities would have been available to the applicant through these postings.
  4. Having regard to the service needs of the Army and the applicant’s promotional opportunities, I believe the applicant’s posting to a SOCOMD unit would have ended after 21 January 2008, as all relevant Warrant Officer Class 1 and 2 positions were filled at that time and a replacement had been identified and issued a posting order with effect 21 Jan 08.” (Exhibit R2 (including annexure))
  5. Major Franks was referred to paras 7–10 of Major Johns’ statement (Exhibit A4 – see paragraph 15 above). She disagreed with the proposition that, if there was no signaller position within the SASR available to the applicant as at 21 January 2008, he could nevertheless have continued to be employed within the SASR in a non-signaller position. She distinguished between Category A positions (including employment categories ECN 353 (SAS trooper) and ECN 079 (commando)) and Category B positions (including employment category ECN 266 (radio operator)). She said that Major Johns’ comments related to Category A (infantry) positions and that the applicant (whose employment category, ECN 266, fell within Category B) could not have been posted to a Category A position (namely, ECN 353 or ECN 079) within the SASR on 21 January 2008 because he did not have the necessary “trade skill set or qualification” for such a posting.
  6. Major Franks elaborated on the abovementioned distinction between Category A and Category B positions, and the relevant employment categories, in a supplementary written statement, dated 23 July 2010, as follows:
“ ...
  1. I provide the following further evidence based on my examination of the following records held by SCMA:
4.1 Defence Instructions (Army) issue number DI(A) Pers 149-1 Selection for Service with the Australian Special Forces dated 19 December 2007 (‘Defence Instructions’); and
4.2 Employment Specification Special Air Service Trooper for ECN 353 (‘Employment Specification’).
Annexed hereto and marked ‘JF1’ is a copy of the Defence Instructions, and marked ‘JF2’ is a copy of the Employment Specification.
5. In the Defence Instructions:
5.1 at paragraph 8, it provides that the Career Manager Royal Australian Signals are (sic) responsible for the provision of advice regarding service in and career management of RASigs personnel posted to various Signal Squadrons including 152 Signal Squadron of (sic) which the applicant was posted;
5.2 at sub-paragraphs 45(a) and (b), it sets out the primary Employment Classification Number (‘ECN’) for Special Forces Service in respect of Category A and B soldiers;
5.3 at sub-paragraph 45(a), it provides that:
5.3.1 Category A soldiers are those that have ECN 079 Commando or ECN 353 SAS Trooper as their primary ECN; and
5.3.2 in order to serve in a Special Forces (‘SF’) unit, ECN 079 and ECN 353 applicants must transfer to the Royal Australian Infantry (‘RAInf’), and non-RAInf soldiers who wish to serve within the SF unit with a primary ECN 079 or ECN 353 must transfer to RAInf;
5.4 at sub-paragraph 45(b), it provides that:
5.4.1 Category B personnel are those who are to retain their allocated trade ECN which includes RASig;
5.4.2 Category B employment is reserved for support or specialist staff who retain their corps or service affiliation;
5.4.3 the employment of Category B personnel is at the discretion of respective Commanding Officer within SOCOMD;
5.4.4 Category B personnel are to remain subject to their parent corps/service career management requirements, and if they subsequently wish to seek employment in a Category A position, they must meet all of the Category A criteria and requirements for ECN 079 (Commando) and (sic) ECN 353 (SAS Trooper) as specified in paragraph 44;
5.5 at paragraph 55, it provides that SCMA’s responsibilities are to raise posting orders and process service transfers for soldiers who have met all selection criteria and are recommended for posting to a SF unit, and ensure that all necessary staff checks are completed prior to raising posting orders to SF units.
  1. In the Employment Specification:
6.1 at paragraph 8, it provides that employment in ECN 353 (SAS Trooper) requires the soldiers to be selected for their ability to operate in a variety of demanding operational situations, and that they must meet specified selection requirements provided in the Defence Instructions; and
6.2 in annexure B to it, it specifies the qualification and training requirements for a ECN 353 (SAS Trooper).
  1. In accordance with the Defence Instructions, the applicant is classified as a Category B personnel by reason of the following:
7.1 he was a member of the Royal Australian Corps of Signals who underwent specialist training as a Signaller;
7.2 his primary ECN was 266 which is Signals, and in accordance to (sic) sub-paragraph 45(b) of the Defence Instructions, he was to retain his allocated trade ECN as a RASigs; and
7.3 he was posted to 152 Signal Squadron as a WO2 ECN 266-5 soldier.
  1. As a Category B personnel, if the applicant was to, subsequently, seek employment in a Category A position either as a ECN 079 (Commando) or ECN 353 (SAS Trooper), he would need to meet all of the Category A criteria and requirements for these positions as specified in the Defence Instructions and Employment Specification (for ECN 353 (SAS trooper) positions).
  2. I have examined the applicant’s service records, and they do not show him meeting all of the required selection criteria and requirements for him to be able to seek employment in a Category A position at any stage prior to his medical discharge. The records also do not show him having submitted any of the paperwork required for a service transfer to the SF unit at any stage prior to his medical discharge.
  3. I have read the transcript of the oral evidence given by Major Christopher Johns at the hearing before the Administrative Appeals Tribunal on 13 July 2010, and in response say that:
10.1 it is SCMA and not SOCOMD that has the responsibility of raising posting orders, and in performing this responsibility, SCMA has an obligation to fulfil and meet the service needs which extends beyond SOCOMD’s needs. Whilst SOCOMD can provide SCMA with its recommendations based on the relevant soldier’s skills and experience, the decision on posting lies solely with SCMA which has the posting authority;
10.2 the applicant was employed as a signals personnel, and I would have been obliged to post him out of SOCOMD into a priority unit that did not have their WO2 ECN 266 positions filled. At the relevant time, all of the WO2 ECN 266 positions at SASR for 2008 were filled;
10.3 given the applicant’s signaller skills and experience, I would have posted him to another Signals unit as there was a service need outside of SOCOMD, and not into a position outside of his trade and Corps.”
(Exhibit R5 (including annexures))

  1. Major Franks was also referred to para 12 of Major Elderfield’s statement (Exhibit A5 – see paragraph 18 above). She agreed with Major Elderfield’s statement that it is “not uncommon for soldiers to be employed outside of trade within SOCOMD ...”. Her evidence continued:
“ What’s your response to that proposition in respect of Gavin Hillman’s situation? --- Any one person outside of their trade is based on a service need. So normally it means that within their trade, they have enough people to fill their trade jobs. If they don’t have enough people to fill their trade jobs, then that’s normally unlikely that someone would be posted outside of their trade.
All right. Okay, well, can you relate that specifically to Gavin Hillman, please? --- Gavin Hillman in – if he had have remained in the military and not been medically discharged, in January 2008, would have been posted to an ECN 266 WO2 position outside of SO Command because every WO2 ECN 266 position was filled with effect January ’08. There were other trade positions in other places in Australia that were vacant that had to be filled. He had the right rank, the right ECN or the right skill set to do those jobs.
Thank you? --- So he wouldn’t have been employed outside of trade”.

  1. In cross-examination Major Franks reiterated that a soldier cannot simultaneously be posted to more than one ECN position, and that the applicant’s posting in the SASR was always to a ECN 266 (Category B) position as a signaller and never to a ECN 353 position as a trooper.
  2. Major Franks acknowledged that a soldier, who has been posted to a unit in a specified position, may in fact perform employment duties other than those of their posted position if, for example, the Commanding Officer assigned them to such other duties.
  3. Major Franks said that there were vacant positions outside the SASR to which the applicant could have been posted in January 2008, for example, in the Defence Force School of Signals, but that there was no vacant position within the SASR to which he could have been posted at that time.
  4. As regards the making of posting decisions, Major Franks said that her function is to make a recommendation to a SCMA delegate who has the authority to make the decision. She added that the delegate usually approves such a recommendation, but not always (for example, if there were overriding compassionate or other exceptional circumstances which militated against a posting recommendation).

Warrant Officer Paul Dunbavin

  1. In his examination-in-chief Warrant Officer Dunbavin affirmed the contents of his written statement, dated 27 July 2010, as follows:
“ 1. I, Paul Dunbavin, am a Warrant Officer Class One in the Australian Regular Army.
  1. I am currently posted to the Soldier Career Management Agency (‘SCMA’), and hold the position of Career Manager Special Forces (‘CMSF’). I have held that position since 17 Jan 2010, and served in the Australian Defence Force since April 1987.
  2. As a CMSF, I am responsible for all career management issues including postings to Special forces (‘SF’) Unit for employment classification number ECN 079 (Commando) and ECN 353 (SASR Trooper). I refer to paragraph 47 of the Defence Instructions (Army) DI(A) PERS 149-1 Selection for Service with the Australian Special Forces (‘Defence Instructions’) which provides, amongst other things, that:
3.1 CMSF is responsible for the posting of soldiers to SF units; and
3.2 the Special Forces Training Centre is responsible for informing SCMA of successful candidates as qualification occurs.
A copy of the Defence Instructions is annexed hereto and marked ‘PB1’.
  1. I have read the summary of evidence of Major Christopher David Johns dated 11 June 2010 and the transcript of his oral evidence given at the hearing before the Administrative Appeals Tribunal on 13 July 2010. The evidence given by Major Johns is incorrect in several areas, and in response, I say that:
4.1 in relation to ECN 353 (SASR Trooper), the delegation of postings is held within SCMA in accordance with paragraph 55 of the Defence Instructions. Decisions made to post individual soldiers are done in consultation with unit Regimental Sergeant Majors, PERS branch SOCOMD Headquarters and the CMSF IAW in accordance with SCMA policies and consideration of other factors pertaining to each individual being posted;
4.2 however, SASR/SOCOMD do not decide nor have the delegations to decide who is posted or is not posted within SASR. These decisions are made by the relevant CSMF at SCMA. It is true that SASR/SOCOMB (sic) may provide advice and recommendations to the relevant CMSF at SCMA but it is the latter who ultimately decides if posting orders are raised;
4.3 on my examination of the service records of the applicant, I observed that the applicant has completed a number of ECN 353 courses, however, his primary ECN is 266 (Radio operator) which means that a Career Manager Royal Australian Signals such as Major Franks would have the responsibility of raising postings for him in accordance with paragraph 8 of the Defence Instructions;
4.4 any decision to post an individual in the applicant’s position having a primary ECN 266 is not one that can be made in isolation with (sic) SASR. The posting would have been dependent on the requirements of Signal Corp to fill vacancies in his primary ECN trade across Army; and
4.5 the service records of the applicant show that he would have not been able to be employed in a training position within SASR which is outside his Signal expertise because he lacked the necessary Instructor courses and qualification for the ECN 353 suite of qualifications with the exception of his MARTAC Instructors course. He must complete not less than three of the following supervisor skills IAW Employment Category Requirements ECN 353 page B-4-3.
  1. Given the applicant’s qualifications and experience, if he had sought a transfer to a Category A position, and had undertaken and met all of the required courses and qualifications, he would have been transferred to a ECN 353-1 (SAS Trooper) position had I been the relevant CSMF at the time. Such a transfer, however, would mean that he would have to relinquish his rank to Trooper or Private which he may not wish to do. In any event, such a transfer could not have taken place as his service records do not show him as having undertaken and met all of the required courses and qualifications in order to be able to be employed as a ECN 353-1 (SAS Trooper) as provided in paragraph 44(b)(1) of the Defence Instructions. In this regard, the applicant has not met the following requirements:
5.1 SF Combat Survival Course;
5.1(sic)Special Forces Weapons (sic).
  1. The applicant would also not have been able to be employed in a ECN 353-2 (SAS Trooper) position because he had also not undertaken and met all of the required courses and qualifications as provided in paragraph 44(b)(2) of the Defence Instructions. Some of these courses include:
6.1 SAS Urban Operations Course;
6.2 SF Demolitions Course; and
6.3 SF Drivers Course.
In addition, he must also complete collective (on-the-job) training/experience for a minimum period of 12 months at pay group 4 before being eligible to receive pay group (sic).” (Exhibit R6 including annexure))

  1. In cross-examination Warrant Officer Dunbavin acknowledged that, if the officer commanding a unit within SOCOMD informed SCMA that the unit had a need to retain a particular soldier and that the officer wanted that soldier to stay with the unit, that factor would be given appropriate consideration by SCMA. He reiterated, however, that, in the making of posting decisions by SCMA, “service needs” is the primary consideration – that is, the needs of the Army as a whole, not merely the needs of a particular unit. Accordingly, if the service needs of the wider Army were in conflict with the needs and wishes of a unit and its Commanding Officer within SOCOMD, the former would prevail.
  2. Warrant Officer Dunbavin said that, if the applicant had been posted outside of SOCOMD in January 2008, the duration of such posting would “normally” have been 2–3 years.

ADDITIONAL EVIDENCE

  1. The Tribunal has also had regard to the other exhibits tendered in evidence, including, in particular, Exhibit R1 comprising the applicant’s personal service documents (pp 1–623). It is unnecessary, however, for the Tribunal to set out, or summarise, that evidence in these reasons.

ANALYSIS

  1. It is common ground that this case falls to be determined in accordance with the application of s 8(10)(b) of the SRC Act. It is also common ground that “the employment in which [the applicant] was engaged”, both at the time referred to in subpara (i) of s 8(10)(b) (namely, “the date of the injury”) and at the time referred to in subpara (ii) of s 8(10)(b) (namely, “the date on which the employment by the Commonwealth ... ceased”), was employment as a member of the Australian Defence Force – more specifically, employment as a member of the Australian Regular Army – and that he was receiving the SAFA disability allowance (which later became known as the SFDA) at each of those times. Accordingly, the temporal distinction between subpara (i) and subpara (ii) of s 8(10(b) of the SRC Act is not a relevant issue in this case.
  2. The matter for the Tribunal’s determination, for the purpose of applying s 8(10) (b) of the SRC Act in this case, is whether, had the applicant continued to be employed as a member of the Australian Regular Army, he would have continued to receive the SFDA on and from 22 January 2008. It is common ground that the applicant would have continued to receive the SFDA for as long as he continued to be posted to the SASR or to another unit within SOCOMD. Accordingly, the parties presented their respective cases on the basis that the critical matter for the Tribunal’s determination is whether or not the applicant would have continued to be posted to the SASR or to another unit within SOCOMD on and from 22 January 2008.
  3. As at the date of the applicant’s medical discharge from the Army, namely, 4 December 2007 (see Exhibit R1, pp 506–507, 587), he was posted to the SASR. According to the evidence before the Tribunal, that posting was for a period commencing on 16 January 2006 and terminating on 21 January 2008. Accordingly, the question which must be answered by the Tribunal is:

upon the expiration of the applicant’s posting on 21 January 2008, would he have then been posted to the SASR or another unit within SOCOMD (in which event the SFDA would have continued to be payable to him) or would he have then been posted to a unit outside of SOCOMD (in which event the SFDA would not have continued to be payable to him)?

  1. The Tribunal accepts the applicant’s evidence as regards his desire and intention to continue as a member of the SASR and his belief that, if he had not been medically discharged, he would have “remained as a serving soldier in the SAS” (see paragraph 12 above). That evidence, however, is not determinative of the abovementioned question.
  2. The applicant chiefly relies on the evidence of Major Johns and Major Elderfield – the former being the Executive Officer (second in command) of the SASR in Perth, the latter being the Officer Commanding 152 Signals Squadron, SASR from January 2006 to December 2007 when the applicant was posted there – to the general effect that, had the applicant remained fit for service and wished to continue to serve within the SASR or SOCOMD, his experience, skills and qualifications were such that he was widely employable in the SASR and in SOCOMD generally and, with the support of his Commanding Officer, would probably have been retained within the SASR or SOCOMD (see paragraphs 15–19 above).
  3. The respondent chiefly relies on the evidence of Major Franks and Warrant Officer Dunbavin of the SCMA to the general effect that, had the applicant continued to be a member of the Australian Regular Army, he would not have continued to be posted to the SASR after 21 January 2008 but would instead have been posted to a unit outside of SOCOMD because:
  4. In determining whether the applicant would have been posted to the SASR or another unit within SOCOMD, or would have been posted to a unit outside of SOCOMD, when his existing posting to the SASR (152 Signals Squadron) expired on 21 January 2008, the Tribunal regards it as appropriate to attach greater weight to the evidence of Major Franks and Warrant Officer Dunbavin than to the evidence of Major Johns and Major Elderfield. It seems to the Tribunal that, by reason of their employment in the SCMA, and the knowledge and experience regarding the making of posting decisions in the Army necessarily acquired by them in that employment, Major Franks and Warrant Officer Dunbavin are well-placed to express a sound opinion regarding the applicant’s likely next posting if he had continued to serve in the Army after 4 December 2007.
  5. Although Major Johns and Major Elderfield are senior officers within the SASR in Perth (the latter being the Officer Commanding 152 Signals Squadron within the SASR where the applicant was posted from January 2006), neither of them (as far as the Tribunal is aware) has had the kind of direct experience or involvement in the making of posting decisions which Major Franks and Warrant Officer Dunbavin have had by reason of their employment in the SCMA. In these circumstances, it seems to the Tribunal that, although Major Johns and, especially, Major Elderfield (as the Officer Commanding the applicant’s unit from 2006) are well-placed to express a sound opinion regarding the quality of the applicant’s service within the SASR and his prospects of future promotion and advancement generally in the Army, neither of them is as well-placed as Major Franks and Warrant Officer Dunbavin to express a sound opinion regarding the applicant’s likely future posting to a particular unit, whether within or outside of SOCOMD.
  6. The Tribunal accepts the evidence of Major Elderfield that, had the applicant not been in the process of a medical discharge in 2007, he “would have negotiated strongly for his services to be retained within SASR or SOCOMD” (see para 5 of his statement set out in paragraph 18 above). The Tribunal, however, also accepts, having regard to the evidence of Warrant Officer Dunbavin (see paragraph 29 above) that, although any such advice provided by Major Elderfield would have been taken into account by the SCMA in making a decision on the applicant’s posting, the service needs of the Army would ultimately have been the paramount consideration in the making of such decision. On the basis of the evidence of Major Franks and Warrant Officer Dunbavin, the Tribunal is satisfied that, even if Major Elderfield had provided advice to the SCMA in 2007 that the applicant should be retained within the SASR or SOCOMD, the applicant would nevertheless have been posted to a unit outside of SOCOMD when his existing posting terminated on 21 January 2008.
  7. It was stressed, in the course of the applicant’s submissions, that the respondent had not identified the particular unit outside of SOCOMD to which the applicant was to be posted with effect from 22 January 2008. It is, however, not surprising that no decision on the applicant’s next posting had been made by the SCMA, given that the applicant had informed Major Franks as early as 26 March 2007 that he would be discharging from the Army because of his medical condition (see Exhibit R4; Exhibit R1, pp 568-569, 565). If, furthermore, a decision had been made by the SCMA for the posting of the applicant to a particular unit outside of SOCOMD with effect from 22 January 2008, the present proceeding before the Tribunal would presumably not have arisen. In any event, it is not necessary, in the Tribunal’s opinion, for it to make a finding regarding the particular unit to which the applicant would have been posted with effect from 22 January 2008. It is sufficient, for the purpose of applying s 8(10)(b) of the SRC Act in the present case, that the Tribunal is satisfied – as it is – that the applicant would have been posted to a unit outside of SOCOMD with effect from 22 January 2008.

CONCLUSION

  1. The Tribunal concludes, therefore, that, if the applicant had continued to serve as a member of the Australian Regular Army on and from 5 December 2007, he would have been posted to a unit outside of SOCOMD with effect from 22 January 2008 and that the SFDA would not have been payable to him on and from that date.
  2. The Tribunal accepts Warrant Officer Dunbavin’s evidence that the duration of such posting would normally have been 2-3 years but the Tribunal is unable, on the evidence before it, to consider what, on the expiration of that posting, the applicant’s next posting would, or even might, have been.
  3. In the present proceeding, the Tribunal can do no more than determine that, for the purpose of calculating the amount of the applicant’s ongoing incapacity payments under Division 3 of Part II of the SRC Act from 5 December 2007, his “normal weekly earnings”, as calculated in accordance with s 8 of the SRC Act, did not continue to include the SFDA on and from 22 January 2008.

DECISION

  1. For the above reasons the Tribunal affirms the decision under review.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.


Signed: ...............[sgd D Brodie]........................

Associate


Dates of Hearing 12, 13 July, 24 November 2010

Date of Decision 28 January 2011

Advocate for the Applicant Mr C Prast

Solicitor for the Applicant Slater & Gordon

Counsel for the Respondent Mr C Clark

Solicitor for the Respondent Australian Government Solicitor


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