Delving into the confusion of casual employment and incapacity payments

Date: July 23, 2020

 

Shillingford v Comcare [2020] FCA 775.

 

Key Points:

• Mr Shillingford appealed a Tribunal decision which affirmed that his incapacity entitlements under section 19 of the Safety, Rehabilitation and Compensation Act 1987 (Cth) (the SRC Act) were $0
• The Federal Court dismissed Mr Shillingford’s appeal and ordered that he pay Comcare’s costs

 

Background:

Mr Shillingford was employed by the Department of Agriculture and Water Resources as a food safety meat assessor, at the Cobram abattoir.  Mr Shillingford was employed on a casual basis as a non-ongoing APS employee pursuant to section 22(2)(c) of the Public Service Act 1999 (Cth).

Mr Shillingford commenced his employment with the Department on 5 June 2015, with his terms of employment stipulating that he would be placed in a pool of casual employees and might be offered work during peak periods and other periods when the Department was unable to meet its work demands. He was also advised that the Department had no obligation to offer him work, nor was he under any obligation to accept work offered to him, and that he should have no expectation of regular or ongoing employment with the Department.

On 23 February 2017, Mr Shillingford tripped over and sustained an injury to his ribs and his right shoulder, for which Comcare accepted liability.  Mr Shillington received compensation for incapacity to work, under section 19 of the SRC Act.

By determination dated 11 September 2017, Comcare denied liability to pay further compensation for incapacity to work, under section 8 of the SRC Act. Mr Shillingford sought review of the determination and, by way of reviewable decision dated 8 November 2017, Comcare affirmed the primary determination as to the cessation of incapacity payments but varied it to state that it was not presently liable to pay compensation pursuant to section 19 of the SRC Act, resulting from the application of section 8(10)(a) of the SRC Act.

Mr Shillingford sought review at the Administrative Appeals Tribunal, who affirmed Comcare’s decision.

In affirming Comcare’s decision, the Tribunal found that after March 2017, Mr Shillingford would not have been offered any work by the Department, irrespective of his injury, due to the closure of abattoirs at Deniliquin and Cobram, the availability of permanent staff in the region, and a general downturn in the industry.  The Tribunal also found that Mr Shillingford had accepted that ongoing employment would not be guaranteed by the Department upon acceptance of the terms of employment.

Mr Shillingford appealed the following grounds:

1. That the Tribunal erred in law by finding that no compensation was payable under section 19 by reason of section 8(10)(a) of the SRC Act without having considered the provisions of the SRC Act limiting the circumstances in which termination of continuing benefits can occur.
2. That the Tribunal erred in law by construing the words ‘continues to be employed’ in section 8(10)(a) of the SRC Act so as to apply to Mr Shillingford as a person engaged for duties that are irregular or intermittent pursuant to section 22(2)(c) of the Public Service Act.
3. That the Tribunal erred in law by failing to construe section 8(10)(b) of the SRC Act and apply it to the facts and circumstances pertaining to Mr Shillingford.

 

The Decision:

The Federal Court dismissed each of Mr Shillingford’s grounds of appeal. The Federal Court accepted Comcare’s submissions that:

• being ‘employed’ for the purpose of the SRC Act is restricted to those persons who might be classified as employees under a law of the Commonwealth or a contract of service.
• the phrase ‘continues to be employed’ in section 8(10)(a) of the SRC Act encompassed Mr Shillingford’s engagement as a non-ongoing employee under section 22(2)(c) of the Public Service Act.
• Mr Shillingford’s employment with the Department, being intermittent in nature, was to be viewed as ‘incidents’ of his employment with the Department under the Public Service Act, rather than independent contracts of service within the definition of ‘employee’ contained in section 5(1) of the SRC Act.

The Federal Court also rejected Mr Shillingford’s contention that the Tribunal failed to consider provisions of the SRC Act which limited the circumstances in which his continuing benefits could be terminated, finding that although Mr Shillingford’s compensation entitlements pursuant to section 19(2) and section 8(10)(a) of the SRC Act were currently $0, this did not mean that his entitlement to future compensation was barred if his circumstances changed.

 

Lessons Learnt:

The Federal Court’s decision clarifies the following:

• employment for the purposes of the SRC Act is restricted to those who would satisfy the definition of an ‘employee’ under any law of the Commonwealth or a contract of service.
• intermittent periods of employment are to be taken as ‘incidents’ of employment, not independent contracts of service.
• an entitlement to weekly compensation is assessed on a weekly basis and is not a bar to future entitlements to compensation, even if a $0 amount has been assessed at any time.

 

Contact:

Andrew Gulyas                                                                      Claire Tota
Associate                                                                                 Partner
Direct:  +61 (0) 2 9376 1122                                              Direct:  +61 (0) 8 9265 6011
andrew.gulyas@hbalegal.com                                      claire.tota@hbalegal.com

 

Download PDF:  Shillingford and Comcare

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