Subsection 5Q(1) defines "remunerative work" as including any remunerative activity. The phrase "remunerative work that the veteran was undertaking" does not refer to the particular job that the veteran had, but to the type of work that the veteran previously undertook:
Banovich v. Repatriation Commission; Repatriation Commission v. Sheehy; Doig v. Repatriation Commission; Flentjar v. Repatriation Commission.Indeed, the relevant remunerative work need not be the last remunerative work that the veteran was undertaking, but it is necessary that it be remunerative work that the veteran would have been undertaking (at the relevant time in the assessment period) had the veteran not been incapacitated from undertaking it by his war-caused disabilities:
Starcevich v. Repatriation Commission (also see Fry v. Repatriation Commission). Fox J in Starcevich indicated that it must have been "substantial" remunerative work (p.454).Sackville J agreed with this in
Repatriation Commission v. Sheehy, where he held that a finding that a veteran over the age of 65 who was employed as a storeman for periods totalling three weeks was not enough, of itself, to establish that the veteran undertook "remunerative work", as that phrase is used in paragraph 24(1)(c). He said:"Fox J stated that the loss sustained by the veteran had to be 'real', indicating that his Honour had in mind remunerative work that had continued for more than a very short period. This interpretation of the judgment is reinforced by his Honour's reference to 'substantial remunerative work ... undertaken in the past' (emphasis added). Jenkinson J's formulation also suggests, albeit tentatively, that past remunerative work does not satisfy s.24(1)(c) unless it continues for more than a very short period. ...
"The statutory context supports the view that a very short period of work in a new field, undertaken by a veteran over the age of 65, will not necessarily constitute 'remunerative work that the veteran was undertaking' for the purposes of s.24(1)(c). Section 24(1)(c) is satisfied only if the veteran is prevented from continuing to undertake 'remunerative work'. When the veteran is under the age of 65, it is enough if he or she is prevented from obtaining remunerative work by reason of the war-caused incapacity: 24(2)(b). ... Section 24(1)(c) does not say that it is enough for a veteran simply to show that the war-caused incapacity prevented that veteran from undertaking remunerative work. The veteran must show that he or she is prevented from continuing to undertake remunerative work. ...
"If the veteran could never perform the duties for which he or she was employed, it may be accurate to say the war-caused incapacity prevented the veteran from undertaking the work. It is much more difficult to say that the veteran has been prevented from continuing to undertake the remunerative activity.
"Even so, depending on the circumstances, a relatively short period of employment might satisfy the legislative requirement." (His Honour's emphasis)
Tamberlin J, in
Repatriation Commission v. Fox, W. H., also agreed that "substantial remunerative work" was the relevant test.In
Birtles v. Repatriation Commission, Hill J considered Starcevich's case and said:"What is involved in each case is ultimately a question of fact, namely, has the veteran by reason of his war incapacity been prevented from 'continuing' a type of remunerative work which he previously undertook (not being work undertaken only for a short period)? The word 'continuing' in this context is used to encompass the case where a veteran may be unable to find a similar kind of work by reason of that incapacity and as a result suffers the loss to which the paragraph refers. If the answer to the question be yes and the other subparagraphs apply, then s.24 is applicable to that veteran."
Hill J also indicated that "remunerative work" in paragraph 24(1)(c) is not to be construed narrowly as the same work that the veteran had previously undertaken, but it refers to work in the same field of endeavour as the veteran had previously undertaken:
Birtles v. Repatriation Commission.In
Sherman v. Repatriation Commission, Gray J stated:"I am by no means convinced that any work for which a veteran has skills or qualifications has to be regarded as 'remunerative work that the veteran was undertaking', within the meaning of s.24(1)(c) of the Act."
Thus, merely because a veteran has the necessary skills or qualifications to do a particular type of work, it does not necessarily mean that because he or she is unable to do that work (which might have been available to the veteran to do) by reason of incapacity from war-caused disabilities, he or she satisfies the provision. Sackville J, in
Repatriation Commission v. Sheehy, confirmed that this was the law in respect of persons over the age of 65, where he said:"it is not enough for a veteran over the age of 65, who has never been engaged in a particular kind of remunerative work, to show that, but for the incapacity, he or she would have obtained that kind of remunerative work. An illustration is a veteran over the age of 65, who has never worked as a farmer because of war-related injury. That veteran could not successfully claim to come within s.24(1)(c) merely by showing that, but for the injury, he or she would have taken up employment as a farmer for the first time at age 66.
"If, however, the veteran is under the age of 65, the fact that he or she has not engaged in a particular kind of remunerative work does not necessarily prevent that veteran from satisfying s.24(1)(c)."
Sackville J made this distinction between those over 65 and those under 65 years of age based on paragraph 24(2)(b)-see below-and the objectives of the legislation as stated in the Minister's Second Reading Speech in 1985.
The Full Federal Court, in
Sheehy v. Repatriation Commission held that the veteran must have successfully performed the remunerative work referred to in paragraph 24(1)(c). The Court (Wilcox, Whitlam and Lindgren JJ) stated:"In our opinion, the words 'undertake' and 'undertaking' in s.24(1)(c) import the notion of 'performance' or of a 'successful' or 'effective' undertaking of work. ...
"It is inappropriate to attempt to define a minimum period during which work of any kind must be performed before it can be said that it qualifies as 'remunerative work that the veteran was undertaking'. ...
"Fox J stated that the loss sustained had to be 'real' and this indicates that his Honour had in mind remunerative work that had been successfully undertaken. Even more to the point is his Honour's reference to 'substantial remunerative work ... undertaken in the past' (emphasis supplied). Similarly Jenkinson J suggested, although tentatively, that past remunerative work does not satisfy the terms of s.24(1)(c) unless it continued for more than a very short period. ...
"Although it is perhaps understandable that there have been references in the cases to a 'short' or 'very short' period of work, we would prefer to say that the 'remunerative work that the veteran was undertaking' must have been 'performed' or 'successfully undertaken' or 'effectively undertaken'.