Al Kibbah v Chandler Macleod Group Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Al Kibbah v Chandler Macleod Group Limited [2023] NSWPIC 620
APPLICANT:	Steve Ehso Yaqow Al Kibbah
RESPONDENT:	Chandler Macleod Group Limited
MEMBER:	John Isaksen
DATE OF DECISION:	20 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Dispute as to the calculation of the worker’s pre-injury average weekly earnings (PIAWE); application of ‘a period of unpaid leave’ in regulation 8E of the Workers Compensation Regulation 2016 as it applies to the circumstances of this dispute; reference to the National Employment Standards in the Fair Work Act 2009 (Cth) in regard to types of leave, the second reading speech for the Workers Compensation Legislation Amendment Bill 2018 and Secretary, Department of Communities and Justice v Stewart; Held – that there were two periods when the worker took a period of unpaid leave and which are to be excluded from the relevant earning period for the calculation of PIAWE.
DETERMINATIONS MADE:	The Commission determines: 1. There was a change of an ongoing nature to the employment arrangement between the applicant and the respondent on or about 5 September 2022, which resulted in a financially material change to the applicant’s earnings as provided for by Regulation 8C (1) of the Workers Compensation Regulation 2016. 2. The relevant earning period for the calculation of the applicant’s pre-injury average weekly earnings as provided for by Regulation 8C (2) of the Workers Compensation Regulation 2016 is from 5 September 2022 to 27 March 2023. 3. The periods from 5 September 2022 to 2 October 2022 and 13 March 2023 to 19 March 2023 were periods when the applicant took unpaid leave and those periods are excluded from the relevant earning period for the calculation of the applicant’s pre-injury average weekly earnings as provided for by Regulation 8E of the Workers Compensation Regulation 2016. 4. The applicant’s pre-injury average weekly earnings for the purposes of calculating his entitlement to weekly payments of compensation are $1,847.95. 5. Liberty to apply by the respondent if there remains a dispute as to the actual calculation of the applicant’s pre-injury average weekly earnings to be made in accordance with the reasons set out in this determination.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Steve Ehso Yaqow Al Kibbah, sustained an injury to his lower back on 27 March 2023 while working as a picker at Woolworths Yennora Distribution Centre and while employed with the respondent, Chandler Macleod Group Limited.
The respondent has admitted liability for this injury and the applicant is receiving weekly payments of compensation. However, there is a dispute between the applicant and the respondent as to the calculation of his pre-injury average weekly earnings (PIAWE).
There is a reference in the documents before the Personal Injury Commission (Commission) to a decision made by Allianz Australia Insurance Limited (Allianz) on behalf of the respondent dated 11 April 2023 wherein PIAWE was calculated to be $1,519.81, although a copy of that decision is not in evidence.
The lawyers for the applicant sought a review of that decision by letter dated 13 June 2023. It is the applicant’s contention that there was a financially material change to his earnings from 4 October 2022 when he was promoted from a Level 1 to a Level 2 position, which resulted in an increase in his hourly rate of pay by approximately $7.77 per hour for an ordinary afternoon shift and $11.085 per hour for a Saturday afternoon.
Allianz issued a notice on 4 July 2023 wherein it confirmed that PIAWE was calculated to be $1,519.81. The notice stated that this was based upon the applicant’s average earnings for a period of 52 weeks prior to the injury sustained on 27 March 2023 and the provisions of
s 44D of the Workers Compensation Act 1987 (the 1987 Act).
Allianz stated in a separate letter dated 5 July 2023:
“Having taken this information into account you are a casual employee and have never received an employment contract confirming a promotion or that you have an agreed number of hours of work per week. Based on this information the original decision dated 11 April 2023 is therefore maintained.”
The applicant calculates his PIAWE over a period of 24 weeks from 4 October 2022 when he received a higher rate of pay, but excluding the week from 13 March 2023 to 19 March 2023, to be $1,847.95.
The applicant contends that a four week period from 5 September 2022 to 2 October 2022 and one week from 13 March 2023 to 19 March 2023 should not be included in the calculation of PIAWE because he was on unpaid leave for these periods.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) the calculation of the applicant’s PIAWE (Schedule 3, cl 2 of the 1987 Act and Regulations 8C and 8E of the Workers Compensation Regulation (the 2016 Regulation)).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a preliminary conference on 22 September 2023, and it was agreed the dispute would proceed to a determination by way of written submissions. The following timetable was set:
(a)    the respondent to file and serve written submissions by 13 October 2023;
(b)    the applicant to file and serve written submissions in reply by 3 November 2023, and
(c)    the respondent to file and serve written submissions in response to the applicant’s submissions by 8 November 2022.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on
29 September 2023;
(d)     Application to Admit Late Documents filed by the respondent on 3 October 2023;
(e)    respondent’s written submissions filed on 13 October 2023;
(f)    applicant’s written submissions filed on 1 November 2023, and
(g)    respondent’s written submissions filed in reply on 8 November 2023.

Relevant legislative provisions

Clause 2 of Schedule 3 of the 1987 Act relevantly provides:

“2 MEANING OF ‘PRE-INJURY AVERAGE WEEKLY EARNINGS’

‘Pre-injury average weekly earnings’ , in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.

Note : See also clauses 3-5 relating to modifications of pre-injury average weekly earnings by agreement and in relation to apprentices, trainees and persons aged under 21 years.
(2) Except as provided by this clause (or by regulations made under this clause), in calculating the ‘pre-injury earnings’ received by a worker in employment for the purposes of subclause (1), no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury (‘the relevant earning period’).
(3) The regulations may provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period)—
(a)to take into account any period of unpaid leave or other change in earnings circumstances in the employment, or
(b)to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.”

Regulation 8C of the 2016 Regulation provides:

“8C ADJUSTMENT FOR FINANCIALLY MATERIAL CHANGE TO EARNINGS--SCHEDULE 3, CLAUSE 2(3)(A) OF 1987 ACT

(1) The relevant earning period for a worker is to be adjusted in accordance with this clause if, during the unadjusted earning period, there was a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker (for example, a change from full-time to part-time work).
(2) The relevant earning period is to be adjusted by excluding from the period any period before the change to the earnings of the worker occurred.”

Regulation 8E of the 2016 Regulation provides:
“8E ADJUSTMENT FOR UNPAID LEAVE – SCHEDULE 3, CLAUSE 2(3)(A) OF 1987 ACT
(1)The relevant earning period for a worker is to be adjusted in accordance with this clause if, during any period of not less than seven consecutive calendar days within the unadjusted earning period—
(a) no earnings in the employment were paid or payable to the worker, and
(b) the worker took a period of unpaid leave (
"the unpaid leave period") commencing on the first day of that consecutive period.
(2) The relevant earning period is to be adjusted by excluding each day (whether or not the day was a usual work day for the worker) of the period commencing on the first day of the unpaid leave period and ending immediately before the day on which earnings in the employment once again became payable to the worker.”

The applicant’s evidence and submissions

The applicant has provided statements dated 20 August 2023 and 28 September 2023.
The applicant states in his statement dated 20 August 2023 that he commenced employment with the respondent at Woolworths Yennora Distribution Centre as a picker on or about
23 September 2021. He states that he worked from 2.45pm to 12.45am, and sometimes would work overtime until 2.00am.
The applicant states that he also worked as a cleaning and facility service provider with GJK Facility Services at the University of Sydney but ceased this work on or about
7 October 2022 when he was promoted by the respondent from a Level 1 to a Level 2 position because this promotion gave him financial relief and he could afford to cease working the second job.
The applicant states that he sustained an injury to his lower back on 27 March 2023. The applicant has not returned to work since that injury.
The applicant states in his second statement dated 28 September 2023 that he was told during his initial training with the respondent that he would be eligible to be promoted from Level 1 to Level 2 after he had completed 52 weeks of work on the shop floor. The applicant states that he received a promotion, which he thought took effect on 4 October 2022, and this promotion significantly increased his earnings.
The applicant states that the promotion from Level 1 to Level 2 was of an ongoing and continuous nature. He states that he was still in receipt of Level 2 pay when he sustained the injury to his lower back on 27 March 2023.
The applicant states that he was told by a representative of the respondent during his training that if he required more than one week of leave then a leave form should be completed no less than four weeks in advance of the leave which was to be taken.
The applicant states that he did not work from 5 September 2022 to 2 October 2022 when he took a trip to Turkey. He states that he completed a form for this period and gave it to the manager whose name he recalls was ‘Puna’ or ‘Taua’. The applicant understands that the respondent disputes this but he insists that he did complete a leave form.
The applicant states that he also did not work for one week from 13 March 2023 to
19 March 2023 due to a sprained ankle. He states that on 13 March 2023 he sent a photo of his swollen leg to the manager ‘Taua’ and she immediately called the applicant and said: “I saw the photo, all good”, and asked for a clearance medical certificate for the applicant to return to work.
The applicant states that even though he was a casual worker he could not simply choose not to turn up for work without providing notice. He states that he would receive SMS messages before the Christmas period stating that leave during the Christmas period would not be approved.
There is a document from the respondent headed “Conditions of Assignment (Casual)” which is dated 4 August 2022 and addressed to the applicant. The “Start date” for the applicant being employed by the respondent on a casual basis with a role at Level 1 is
20 September 2021 and the “Indicative end date” is 30 October 2022, but “subject to change based on client requirements”.
The document states that the applicable Enterprise Agreement is the Sydney National Distribution Centre Enterprise Agreement 2018 as varied from time to time. The document also includes the following:
“Your rate of pay includes a casual loading. The casual loading is paid to you in full satisfaction of any entitlements under the National Employment Standards (NES), award, enterprise agreement, including but not limited to annual leave, personal leave, notice of termination and redundancy.”
There is another document from the respondent headed “Conditions of Assignment (Casual)” which is dated 11 October 2022 and addressed to the applicant. The “Start date” for the applicant being employed by the respondent on a casual basis with a role at Level 2 is
5 September 2022 and the “Indicative end date” is 8 January 2023, but “subject to change based on client requirements”. Other details of employment remain the same as in the previous Conditions of Assignment which had a ‘Start date’ of 20 September 2021.
Payslips provided by the applicant confirm that he was consistently paid at a Level 2 rate from 4 October 2022 to 27 March 2023.
The applicant submits that he did submit a form for leave to travel to Turkey and presses for the production of that form. He also submits that a strong inference can be drawn by the failure of the respondent to provide any evidence from the person named “Puna’ or ‘Taua’, to whom the applicant claims he gave the leave form to.
The applicant submits that he also took leave as a result of the injury to his ankle because he was instructed to provide a medical certificate for a clearance to return to work. The applicant asks the rhetorical question: Why would he send a medical certificate if he had not been instructed it was required?
The applicant submits that while he was not entitled to annual leave as a casual employee, he was entitled to other leave entitlements that were provided for in the Enterprise Agreement, namely unpaid carers leave (clause 13.1.5) and up to two days of unpaid compassionate leave (clause 14.2).

The respondent’s evidence and submissions

Rachel Auld has provided a statement dated 29 September 2023. Ms Auld states that she is the team leader in Volume Accounts for the respondent and part of her role is to manage casual workers in the Sydney area. She states that she is familiar with the Woolworths Western Sydney Distribution Centre.
Ms Auld states the applicant is employed by the respondent pursuant to the Woolstar Pty Ltd Sydney National Distribution Centre Enterprise Agreements which were made in 2018 and 2021. She states that each Agreement provides that once a team member has completed 12 months of service on a continuous basis then that team member will proceed to Store Person Grade 2.
Ms Auld states that the “Conditions of Assignment” document provided to the applicant when he was first employed with the respondent specified a Level 1 role. The document provided an indicative end date which serves no purpose other than to provide a method of review by the respondent to ensure compliance with the Enterprise Agreement.
Ms Auld states Woolworths was contacted after the applicant had completed 12 months of work and the respondent proposed that the applicant proceed to a grade 2 worker in accordance with the Enterprise Agreement. She states that this progression in grades is subject to approval by Woolworths.
Ms Auld states:
“Woolworths approved the progression of the applicant from level 1 to level 2. I did not consider that a promotion, because it was merely as a result of the effluxion of time and the change of definitions between clauses 3.22 and 3.24 of the Enterprise Agreement. Consistent with the decision by Woolworths to approve the applicant proceeding to grade 2, the Conditions of Assignment (Casual) for level 2 were sent to the applicant on about 11 October 2022”.
Ms Auld states that the Conditions of Assignment and Enterprises Agreements provide that the applicant is paid a casual loading which includes an amount for annual leave, personal leave, termination and redundancy. She states that the applicant did not apply for leave, paid or unpaid, and leave was never granted to him.
Ms Auld states that the applicant is free as a casual employee to reject a shift offered to him if he does not wish to work.
There is an email from ‘Payroll Customer Support’ for the respondent dated 1 May 2023 to the applicant’s lawyers which states:
“Regarding your request for dates of absences and leave forms, as a casual employee, Steve was not required to provide these so we do not have record of this information.”
In regard to the applicant’s submission that there was a financially material change to his earnings by the change from a Level 1 casual to a Level 2 casual, the respondent submits that it “does not seek to cavil with that argument for the purpose of these proceedings”.
The respondent now submits that the adjusted earning period for the purposes of calculating PIAWE should be from 5 September 2022 to 27 March 2023, and not from 4 October 2022 as asserted by the applicant.
The respondent points out that the “Conditions of Assignment (Casual)” dated
11 October 2022 provides that the applicant’s “Start date” to be employed as a casual at a Level 2 position is 5 September 2022.
The respondent submits that the objective intentions of the parties to the contract of employment must be determined from the express terms of the written agreement when that agreement was entered into and refers to what was said by Kiefel CJ, Keane and Edelman JJ in ZG Operations & Anor v Jamsek & Ors [2022] HCA 2 (Jamsek) and Construction, Forestry, Maritime, Mining and Energy Union v Personal Contracting Pty Ltd [2022] HCA 1 (Personal Contracting).
The respondent submits that the applicant’s average earnings from the start date of the contract on 5 September 2022 now amounts to $1,541 per week, based on total wages of $44,700 for a 29 week period from 5 September 2022 to 27 March 2023.
The respondent submits that the applicant cannot obtain the benefit of regulation 8E of the 2016 Regulation because the applicant is not entitled to take leave, whether that be unpaid or paid leave. The respondent submits that this evident from several provisions in the “Conditions of Assignment” and the Enterprise Agreements which have been referred to:
(a)    clause 4.4 of the Enterprise Agreement states that casual team members are to receive an additional loading equal to 1/12^th of ordinary hourly rates in lieu of annual leave, up to a maximum of 36 hours per week;
(b)    clause 12.1.1 of the Enterprise Agreement excludes casual employees from annual leave, and
(c)    the Enterprise Agreement has clauses which treat casual employees differently to full time or part time team members.
The respondent acknowledges that the applicant is entitled to compassionate leave, but that this is the only entitlement the applicant has for leave, paid or unpaid, and it did not occur in the circumstances of this dispute. The respondent submits that unpaid carers leave does not apply in this dispute. The respondent submits that it “would be stretching the words of the contractual documents to say that there was any other unpaid leave entitlement”.
The respondent submits that the terms of the applicant’s contract which provide that his income is to be increased by one-twelfth are due to be there being no allowance for annual leave. There should accordingly be no further adjustment under Regulation 8E.
The respondent submits that there was no time when the applicant applied for leave or was granted leave based upon the evidence from Ms Auld. The respondent submits that there was no form for leave completed by the applicant. The respondent submits that the evidence reveals that the applicant was simply informing the respondent that he was not going to be available for a period of time when he chose to travel to Turkey.

The respondent submits that this dispute does not involve circumstances alluded to by Member Wright in Wake v State Emergency Services [2022] NSWPIC at [47] where a casual or seasonal worker can have periods when there is no work and therefore those periods should not be included in the weeks for calculation of PIAWE. The applicant in this dispute made a conscious decision to have some time away from work for which he received recompense by earning a higher rate of pay.
The respondent submits that the applicant’s evidence in regard to his communication with ‘Taua’ following the injury to his ankle does not suggest any leave was approved or allowed, but instead were simply requirements for the applicant to resume shift work.

Determination

The determination of this dispute involves the application of the term ‘the unpaid leave period’ in regulation 8E of the 2016 Regulation. However, there is no definition of ‘the unpaid leave period’ or even ‘leave’ in the 2016 Regulation or elsewhere in the workers compensation legislation.
In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky), McHugh, Gummow, Kirby and Hayne JJ said at [78]:
“…the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan), Hayne, Heydon, Crennan and Kiefel JJ said at [47]:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
The respondent contends that as a casual employee and in accordance with the terms of the relevant Enterprise Agreements under which the applicant employed, the applicant had no entitlement to leave. A ‘change of an ongoing nature to the employment arrangement’ as provided for by regulation 8C occurred on 5 September 2022 when the applicant was to be employed as a casual at a level 2 position and the calculation of PIAWE should be from
5 September 2022 to 27 March 2023.
The respondent reinforces its submissions by pointing out that the applicant had no entitlement to annual leave or personal leave, but that this is compensated for by the applicant receiving a higher rate of pay than full time employees.
However, the applicant is entitled to certain types of leave as a casual employee, and not only in the Enterprise Agreements as identified by the applicant in his submissions, but also from the National Employment Standards which forms Part 2-2 of the Fair Work Act 2009 (Cth). Section 61 (1) of the Fair Work Act 2009 provides:
“This Part sets minimum standards that apply to the employment of employees which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5).
Note: Subsection 55(5) allows enterprise agreements to include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards.”
The types of leave which the applicant is entitled to from the National Employment Standards, even as a casual employee, are:
(a) unpaid parental leave pursuant to ss 67 and 70 of the Fair Work Act 2009 for 12 months, so long as the applicant had been employed for a sequence of periods of employment for 12 months. The applicant would have reached this entitlement by the time he sustained his injury on 27 March 2023;
(b) unpaid carer’s leave pursuant to sections 102 and 103 of the Fair Work Act 2009. This provides two days of unpaid carer’s leave for employees for each permissible occasion. Clause 13.1.5 of the Enterprise Agreement provides for unpaid carer’s leave “in accordance with the FW Act”;
(c) compassionate leave pursuant to sections 104 and 106 of the Fair Work Act 2009. This provides two days of compassionate leave for employees for each permissible occasion, but for casual employees it is unpaid leave. Clause 14 of the Enterprise Agreement sets out the entitlements for unpaid compassionate leave for casual employees which is equivalent entitlement to that set out in the Fair Work Act 2009;
(d) family and domestic leave pursuant to sections 106A and 106BA of the Fair Work Act 2009. An employee, including a casual employee, is entitled to ten days paid family and domestic leave in a 12 month period, and
(e) absence from employment for engaging in eligible community service activity pursuant to section 108 of the Fair Work Act 2009.
Given the different types of leave which are available to the applicant even as a casual employee, and notwithstanding that the applicant had never availed himself of any of those types of leave prior to his injury, I cannot accept the respondent’s restrictive arguments as to how the term ‘leave’ in regulation 8E should be applied in this dispute.
In the absence of any assistance by the legislature of what is meant by ‘leave’ in regulation 8E, I need to return to the “language which has actually been employed in the text of legislation” (Alcan). However, in doing so I am mindful that the term ‘leave’ as it is used in this regulation is peculiar to the law of employment.
I have reviewed standard texts regarding employment law in New South Wales and the Commonwealth of Australia, including Macken’s Law of Employment 9^th Edition and The Contract of Employment 2^nd Edition by Mark Irving, but have been unable to locate any definition or meaning for the term ‘leave’ per se as it applies in the context of employment law.
It seems to me that the term ‘leave’ as it is applied in regulation 8E is a period of time which a worker has away from undertaking actual work in his or her employment which is provided for by law (such as annual leave or compassionate leave), directed by the employer (such as garden leave or due to a downturn in work), or allowed with the express or implied consent of the employer (such as leave without pay). In my view, the latter situation applies in this dispute.
The applicant worked for the respondent for about one year before he stopped work for four weeks to travel to Turkey. The applicant has provided copies of pay slips from
10 March 2022 (which is about six months after he commenced employment with the respondent) to 7 September 2022 and these pay slips confirm that the applicant was in regular and systematic employment with the respondent. The payslips reveal that the applicant usually worked three to four shifts per week during this period. The payslips from 12 October 2002 until the date of the applicant’s injury confirm that this regularity in the hours worked each week by the applicant continued after he had returned from Turkey.
The applicant had been engaged in regular and systematic employment by the respondent for about a year and then the respondent allowed the applicant to take four weeks off work in September 2022 before then allowing the applicant to return and engage in the same regular and systematic employment and with an increase in his pay.
In my view the four weeks which the applicant had away from work in September 2022 was leave (for which he did not receive any payment) which was taken with at least the implied consent of the respondent. The applicant was allowed by the respondent to be away from work for four weeks between two periods of time when he was otherwise engaged in regular and systematic employment by the respondent.
It is therefore not necessary to have the applicant or Ms Auld be the subject to cross-examination so as to adjudicate on whether the applicant did complete a leave form or whether or not there are forms to be completed by casual employees for leave. These requests were made by both the applicant in his submissions and by the respondent in its submissions in reply.
The applicant took unpaid leave for those four weeks by being allowed to return to the same conditions of his employment with the respondent as he had for almost a year before he travelled to Turkey, but with an increase in pay.
I am also of the view that the one week that the applicant had away from work in March 2023 due to a sprained ankle was a period of unpaid leave. The respondent required the applicant to be away from work until he produced a medical certificate for clearance for a return to work. This was a period of time away from work at the direction of the respondent.
In making this finding in favour of the applicant’s case, I am also mindful of what was also said in Alcan at [47]: “The meaning of the text may require consideration of the context which includes the general policy of a provision, in particular the mischief it is seeking to remedy”.
The mischief which regulation 8E seeks to remedy was set out in the second reading speech of the Workers Compensation Legislation Amendment Bill 2018 which was read by Mr Scot MacDonald in the Legislative Council on 19 September 2018 when it was stated in regard to amendments made to the calculation of PIAWE:
“Consistent with this adaptable and flexible approach is a regulation-making power to adjust the relevant earning period to accommodate changes in the worker’s earnings circumstances and the ability to align the calculation of weekly payments with an injured worker’s normal pay cycles.”
The applicant’s “earnings circumstances” did change for the four weeks he travelled to Turkey and the one week when he was recovering from a sprained ankle. Consistent with the “mischief” which regulation 8E seeks to remedy (Alcan) as set out in the second reading speech, the periods of leave which the applicant took in both those circumstances and for which he did not receive any pay, should not be included in the calculation of PIAWE.
In Secretary, Department of Communities and Justice [2023] NSWPICPD (Stewart), DP Wood said in regard to regulation 8E at [94] that: “In my view, an unjust outcome would result if a narrow view was taken to the term ‘unpaid leave’” and that “the intention of legislation…was clearly to apply fairness to the calculation of pre-injury average weekly earnings”.
The respondent submits that Stewart can be distinguished because it involved a worker who had not worked because he had sustained a separate injury for which he was receiving workers compensation. The respondent submits in this dispute they will be the party who will be the subject of an unjust outcome because the remuneration for the applicant’s time away from work in order to travel has already been included in the PIAWE calculated by the respondent and the applicant’s wages would otherwise be “double counted”.
I do not agree with this submission and consider that DP Wood’s observation that there should not be “a narrow view” taken to the term ‘unpaid leave’ is consistent with the apparent intention of the legislature to allow for changes in the actual earnings of a worker in the calculation of PIAWE.
There will be a finding that the periods from 5 September 2022 to 2 October 2022 and from 13 March 2023 to 19 March 2023 were periods when the applicant took unpaid leave and those periods are excluded from the relevant earning period for the calculation of the applicant’s PIAWE as provided for by Regulation 8E of the Workers Compensation Regulation 2016.
The applicant has calculated PIAWE to be $1,847.95 and this has been set out in an email to Allianz dated 24 August 2023. I have not done my own calculations. If there remains a dispute between the parties as to the actual calculation of PIAWE to be made in accordance with the reasons set out in this determination, then the respondent has liberty to apply.

[2023] NSWPIC 620

20 November 2023