Bee v The Workcover Corporation

The High Court of Australia was considering an application for special leave to appeal by The Workcover Corporation against a decision of the Full Court. The dispute concerned the interpretation of section 36(2)(bb) of the *Workers' Compensation and Rehabilitation Act 1986* (SA), which deals with the reduction of weekly payments of compensation in certain circumstances. The applicant argued that the Full Court's judgment had created uncertainty by adopting an "actuality test" that conflicted with previous Full Court decisions.

The central legal issue before the High Court was whether, for the purposes of section 36(2)(bb), the Workcover Corporation was required to establish only that an employee, at the time of the application, would have either lost their job or not had overtime with their former employer. The applicant contended that this "actuality test" was too narrow and did not adequately consider the worker's subjective intentions or the availability of overtime in the broader labour market, as suggested by earlier cases.

The applicant's submission relied on two prior Full Court decisions. In *Francese v City of Adelaide*, it was held that the assessment of future earnings, including overtime, should consider what a worker *could have or would have earned* but for their disability, with past earnings being a factor but not decisive. In *Broken Hill Associated Smelters v Gray*, the Full Court rejected an "actuality test" for determining overtime inclusion, viewing the statutory criteria as potential formulae for assessing future earning capacity, not as rigid constraints based solely on past actual earnings. The applicant argued that the Full Court in the present case had departed from this approach by focusing solely on the immediate reality of the employment situation rather than the worker's potential future earnings.