Beckett v The State of NSW (Department of Climate Change, Energy, the Environment and Water)
[2025] NSWPIC 316
•3 July 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Beckett v The State of NSW (Department of Climate Change, Energy, the Environment and Water) [2025] NSWPIC 316 |
| APPLICANT: | Nicola Beckett |
| RESPONDENT: | The State of NSW (Department of Climate Change, Energy, the Environment and Water) |
| MEMBER: | John Turner |
| DATE OF DECISION: | 3 July 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987 (WC Act); sections 33, 37 and clause 2 of Schedule 3 of the WC Act; clause 8C of the Workers Compensation Regulation 2016 (WC Regulation); accepted psychological injury; dispute as to whether claimed incapacity results from the accepted psychological injury; dispute as to incapacity; applicant “acting” at time of injury in a different position to her substantive position; dispute in respect to application of clause 8C of the WC Regulation and as to meaning of “ongoing nature”; pre-injury average weekly earnings (PIAWE); Project Blue Sky Inc v Australian Broadcasting Authority and Secretary, Department of Communities and Justice v Farrugia considered and applied; Held – applicant’s PIAWE determined; respondent is to pay the applicant weekly benefits pursuant to section 37(3)(a) of the WC Act subject to indexation. |
| DETERMINATIONS MADE: | 1. The applicant’s pre-injury average weekly earnings (PIAWE) is $2,240.12. 2. The respondent is to pay the applicant pursuant to s 37(3)(a) the following: (a) $1,255 per week from 24 July 2024 to 30 September 2024; (b) $1,295 per week from 1 October 2024 to 5 December 2024; (c) $1,264.10 per week from 6 December 2024 to 31 March 2025, and (d) $1,272.10 per week from 1 April 2025 to date and continuing subject to indexation. |
STATEMENT OF REASONS
BACKGROUND
On 5 May 2025 a Certificate of Determination (COD) was issued in this matter which ordered the parties to agree within seven days the applicant’s pre-injury average weekly earnings (PIAWE), with indexation, excluding any period before the applicant commenced to act as a visitor centre supervisor in accordance with reg 8C of the Workers Compensation Regulations 2016 (Regulations) together with an agreed schedule of the compensation to be paid in accordance with s 37(3)(a) of the 1987 Act in accordance with the determination which had been made for the period from
24 July 2024.If the parties were unable to agree they were to provide submissions in respect to the calculation of such a PIAWE and a calculation of the compensation which they submit is payable in accordance with s 37(3)(a) from 24 July 2024 to date together with a schedule of the PIAWE, with indexation, and a schedule of the compensation which it is submitted is payable.
The parties did not reach an agreement and the submissions have now been received.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) calculation of PIAWE, and
(b) the amount of weekly compensation to be pain in accordance with the previous determination of 5 May 2025.
FINDINGS AND REASONS
PIAWE
The applicant submits that the relevant period over which the PIAWE should be calculated commences on 28 April 2023. The respondent submits that the period should commence on 7 March 2023.
It is the applicant’s evidence in her statement dated 19 March 2025 at [8] that she started acting as the visitor centre supervisor on a part-time basis on 7 March 2023 and at [9] that she was informed by the respondent’s Human Resources (HR) department that she couldn’t act in the role on a part-time basis, and as such had to work full-time in the role from
28 April 2023.A document titled “Change in Hours” which was completed by the applicant on 24 April 2023 records that the applicant was a part time employee who wished to change her hours for the period 28 April 2023 to 30 June 2023 to 35 hours per week. A document titled “Temporary Assignment Allowance” which was signed by the applicant on 28 April 2023 and approved by Ann Walton on 1 May 2023 records that the applicant worked 24.5 hours per week between 3 March 2023 and 27 April 2023 and from 28 April 2023 to 30 June 2023 the applicant was to work 35 hours per week. A further “Change in Hours” document signed by the applicant on 18 July 2023 records that the applicant was to work 35 hours per week from 28 April 2023 to 31 October 2023.
The evidence supports that when the applicant commenced acting as a visitor centre supervisor, she initially continued to work on a part-time basis up until 27 April 2023 and then from 28 April 2023 was employed on a full-time basis (35 hours per week).[1] The applicant submits that the change from part-time employment to full-time employment is a change in circumstances for the purposes of reg 8C of the Regulations. Regulation 8C states:
“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.”
[1] The applicant submitted that at [14] of its submissions in reply that there was a factual error at [28] of the COD where I stated “The acting Visitor Centre Supervisor role was a full-time position” an requested that this be reconsidered or corrected. I am of the view that the statement is not incorrect. The evidence supports that the role was full-time. Whilst the applicant initially worked in the role on a part-time basis she was required shortly after commencing in the role to transfer to full-time employment as the role was a full-time role.
I accept the applicant’s submission. The change from full-time to part-time employment came with a significant increase in the wages paid to the applicant. That is the change in the nature of the employment arrangement, from part-time employment to full-time employment, which resulted in a “financially material change to the earnings of the” applicant. I have previously found in the earlier COD of 5 May 2025 that the change to the acting visitor centre supervisor role was a “change of an ongoing nature”.
For the above reasons I find that the period to be used for the calculation of the PIAWE commenced on 28 April 2023.
There is no dispute between the parties that the period during which the PIAWE is to be calculated closes on 10 August 2023.
I therefore accept the applicant’s submission that the PIAWE be calculated over the period from 28 April 2023 to 10 August 2024. I also accept the applicant’s calculation of the PIAWE of $2,240.12. The respondent has not submitted that there is any error in that calculation.
Weekly compensation
Based on the PIAWE of $2,240 I will make orders for the payment of weekly compensation pursuant to s 37(3)(a) of the Workers Compensation Act 1987 consistent with the determination of 5 May 2025.
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