31.2.2 Inclusion of Overtime in Reservists NWE

S8(2) also makes provision for inclusion of earnings from overtime into NWE, thus:

8(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:

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

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

This provision has no application to full-time (permanent force) ADF members who, although they may work long or irregular hours, do not work formal 'overtime' within the meaning of any industrial award, i.e. they do not earn extra pay for extra hours.

However S8(2) may have application to the civilian employment of some Reserves members.

• See 31.9 and 31.10 below for calculation of reservists NWE.
• See also 14.2 and 31.2.4 for discussion of the term 'relevant period' used in 8(2).

'Required to work overtime on a regular basis'

It is clear from S8(2) that compensation is not automatically payable in respect to any occurrence of overtime in a 'relevant period'.

• The delegate must be satisfied that the client was required to work that overtime.
• The requirement to work overtime must have been part of a requirement to do so on a regular basis.

In the case of Re Zarb and Comcare (1997) the AAT:

'...formed the view that the word 'required' should be given its ordinary everyday meaning in the context in which it appears. In the Tribunal's opinion, the ordinary everyday meaning of 'required' is the imposition, by the employer in an authoritative fashion, of an obligation upon the employee to work overtime on a regular basis.'

Furthermore:

'The Tribunal is of the view that 'regular' means a uniform or symmetrical pattern over time which can be described as usual or customary. To establish whether the overtime of an employee occurs on a 'regular' basis, one would look to the overtime worked during the relevant period to determine whether the pattern is 'uniform or symmetrical'.

This means that clients who work overtime only occasionally or sporadically or seasonally or in response to crises etc. in the workplace should not have that overtime included in his/her NWE. Given that a 'relevant period' as defined by S9 means a period of only two weeks, delegates should expect that 'regular' means at least weekly, and of ongoing occurrence.