Eggers v Return to Work Corporation of South Australia [2023] SAET 17

Earlier this month, the South Australian Employment Tribunal (SAET) held that the best way to determine a change in a worker’s AWE rate is the use of comparators, that is, another worker in a similar role as the worker before the worker was injured. The case of Eggers explores what information is necessary to best determine a change in the AWE rate.

Mr Eggers sought an order pursuant to s45(4) or the Return to Work Act increasing his weekly payments to reflect the overtime he would have worked but for his injury. Mr Eggers’ original AWE already included a component of overtime.

RTWSA sought information from the employer of other workers considered by the employer to be comparators to determine whether there had been a change in the pattern overtime that Mr Eggers would have worked.

RTWSA determined to reduce the weekly payments of Mr Eggers on the basis that less overtime would have been continued by Mr Eggers but for his injury.

Mr Eggers challenged the reduction and based on substantially the same material, in fact made an application for his weekly payments to be increased.

RTWSA conceded its determination to reduce the weekly payments but rejected the worker’s request for his weekly payments to be increased.

His Honour DPJ Crawley considered whether it was reasonable to remove the overtime component.

 

Tribunal’s consideration

Section 5(12) of the Return to Work Act outlines that amount historically earned by way of overtime is to be included without the need to establish a particular patterned. This is possible if some overtime would have continued to be worked within the foreseeable future.

His Honour DPJ Crawley held that the Act contained a safeguard and that if subsequently, less overtime would have been worked, there was the capacity to reduce the rate of weekly payments. In addition, his Honour noted that there is a general power for the Corporation to reduce or increase weekly payments to reflect a change in a component of the worker’s remuneration used to determine average weekly earnings, this being section 45 of the Act. However, RTW Act is silent on what evidence is necessary to establish any change in the overtime that would have continued to be worked.

His Honour DPJ Crawley held that because of the intervention of the injury, reliance on comparators will be a primary source of evidence of an increase or decrease in overtime. This is so notwithstanding the lack of reference to “comparators” within the Act itself. Additionally, or alternatively, evidence of a general increase in overtime being worked across the employer may provide the necessary evidence.

Mr Eggers provided the following evidence:

• He was keen to work as much overtime as possible
• He would be groomed to become a supervisor at an increased hourly rate
• He commenced undertaking supervisory type duties, initially shadowing and then gradually taking over supervisory type duties himself on different projects
• The worker admitted to wanting to leave his employment
• Mr Eggers provided 4 comparators showing that the supervisor’s overtime component increased following the applicant’s injury
• Alternatively, the figures showed a general increase in the amount of overtime worked and his AWE should be increased by the increased percentage amongst all the comparators including the supervisor
• Mr Eggers provided 4 comparators – none had the same qualifications or experience as the worker and the records were incomplete.

DPJ Crawley’s findings:

• His Honour had no difficulty in finding that prior to his injury Mr Eggers was endeavoring to earn as much as he could by taking all available overtime
• His Honour agreed that there must have been discussions between Mr Eggers and the employer about Mr Eggers undertaking a supervisory role eventually
• His Honour found that the overtime was not instigated by the employer, but rather Mr Eggers
• Comparator 3 only commenced employment after Mr Eggers’ injury and, indeed, was employed to replace him. However, the evidence suggests that, unlike Mr Eggers, he did not seek to work as much overtime as was made available
• His Honour did not agree with Mr Eggers that he was undertaking supervisory duties and therefore did not find the supervisor to be an appropriate comparator
• There are limitations on the use of any co-worker as a valid comparator. Further, it is difficult to make the assumption that by looking at the overtime worked overall, it can be said that the overtime that would have been worked by Mr Eggers specifically would have increased and if so, the extent of any such increase. It appears to be speculative rather than probable
• Even in the case of Comparator 1, the change in the amount of overtime was relatively modest and may be no more than can be explained by the absence of Mr Eggers and the change in preferred overtime worked by his replacement.

 

What does this mean for you?

The decision of Eggers has provided much needed clarity in the area of AWE and inclusion of overtime and the necessary information needed to make a proper assessment.

As highlighted in the case, the use of comparators is the best method to determine changes in AWEs. If there is a change in the worker’s earnings (once you have calculated an AWE rate), the best method to determine this is by using comparators.

Business should be make an effort to obtain comparators with same experience and role as the worker as the Act silent on what evidence is necessary to establish any change in the overtime that would have continued to be worked. Additionally, or alternatively, evidence of a general increase in overtime being worked across the employer may provide the necessary evidence.

 

Disclaimer: this does not constitute legal advice and we do not represent it to be legal advice. If you seek advice, please contact us on 7093 2350 or mail@melinolegal.com.au