Comcare v Heffernan: Normal weekly hours are those before injury

The Full Court of the Federal Court last week allowed the appeal in Comcare v Heffernan [2011] FCAFC 131, holding that 'normal weekly hours' are those hours worked before injury to the worker.

Mr Heffernan, who was employed by Australian Nuclear Science and Technology Organisation (“ANSTO”) was injured but resumed work with the organisation after his injury. He contended that that his compensation should be measured by reference to his post-injury work hours whilst Comcare submitted that his pre-injury hours were the appropriate consideration.

Section 19(3) of the Safety, Rehabilitation and Compensation Act 1988 states that Comcare will pay an injured worker on the basis of his or her "normal weekly hours" which is defined in section 4 as the pre-injury hours.

Counsel for Mr Heffernan argued that the definiton of "normal weekly hours" in Section 19 was meant to displace the definition in Section 4, but the court disagreed (at 23), despite the fact that such an interpretation would lead to less generous outcomes for injured employees.

Their honours stated that the position which Comcare was adopting was the correct approach, though it was a reversal on the definition they had accepted for the past 20 years, and that it lacked "logical attraction".

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