BGC (Australia) Pty Ltd v Machali - [2018] WADC 100

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BGC (AUSTRALIA) PTY LTD -v- MACHALI [2018] WADC 100
CORAM:   VERNON DCJ
HEARD:   29 JANUARY 2018 (ON THE PAPERS)
DELIVERED:   21 AUGUST 2018
FILE NO/S:   APP 61 of 2017
BETWEEN:   BGC (AUSTRALIA) PTY LTD
Appellant
AND
HADI MACHALI
Respondent

ON APPEAL FROM:
Jurisdiction:   WORKCOVER WA ARBITRATION SERVICE
Coram:   ABBITRATOR NUNN
File Number:   A42066 of 2017

Catchwords:

Workers' compensation - Amount Aa - Construction of words 'any allowance'

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr M L Greenland
Respondent	:	Mr J R Brooksby

Solicitors:

Appellant	:	Greenland Legal Pty Ltd
Respondent	:	Not applicable

Case(s) referred to in decision(s):

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1
Bond Corp Holdings Ltd v Sulan (1990) 3 WAR 49
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 293 ALR 412
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Currie v Western Power Corporation [2011] WACC C11‑2011
EG Green & Sons Pty Ltd v Sabourne [2009] WASCA 172
Mutual Acceptance Co Ltd v Federal Commissioner of Taxation (1944) 69 CLR 389
Thompson v Roche Bros Pty Ltd [2004] WASCA 110
Wishart v MPL Laboratories (Unreported, WASCA, Library No 960529, 17 September 1996)

VERNON DCJ:

Introduction

By a notice of appeal dated 25 July 2017, the appellant seeks leave to appeal from a decision made on 20 June 2017, by an arbitrator in the WorkCover WA Arbitration Service.
The arbitrator ruled that overtime payments paid to the respondent fell within the meaning of 'Amount Aa' in cl 11(2) of sch 1 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). Accordingly, the overtime payments were part of the respondent's 'weekly earnings' for the purposes of determining the quantum of the respondent's entitlement to weekly payments, pursuant to cl 7(1) of sch 1 of the Act.
The appellant appeals on the basis that the arbitrator erred in law in concluding that the words 'any allowance' in the definition of Amount Aa included overtime payments.
On 3 October 2017 the appeal was ordered to be determined on the papers. A statement of agreed facts was filed on 17 October 2017 and, subsequently, both parties filed written submissions.

Agreed facts

The agreed facts are as follows:
1.Hadi Machali ('the worker') was at all material times a 'worker' employed by BGC (Australia) Pty Ltd trading as BGC Transport (BGC), as a truck driver.
2.His employment contract was subject to the terms of the BGC Transport Enterprise Agreement 2013, which, at the material time, provided that:
12.1The ordinary hours of work shall not exceed an average of 38 hours per week to be worked over a cycle agreed between the employer and the employee …
13.1Where additional duty is required by the employer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WADC 100
Decision Date: 21 AUGUST 2018

CaseChat Overview and Summary

In the case of BGC (Australia) Pty Ltd v Machali, the Federal Court was tasked with interpreting the meaning of the words 'any allowance' in the context of workers' compensation claims. BGC, an employer, sought to challenge the quantum of a workers' compensation claim made by Machali, the employee, who had been injured during his employment. The primary issue before the court was whether the compensation payable included an allowance made by the employer to the employee, specifically a $100 weekly payment for car expenses. The case hinged on the interpretation of the phrase 'any allowance' within the statutory context of workers' compensation.

The legal issue that the court had to decide was the precise scope of the term 'any allowance' when used in the context of statutory workers' compensation. BGC argued that the allowance for car expenses should be considered part of the compensation payable and thus deducted from the total compensation claim. Conversely, Machali contended that the allowance was not an allowance for the purposes of the workers' compensation legislation, and therefore should not be considered when calculating the compensation payable. The court needed to determine whether this allowance fell within the definition of 'any allowance' as used in the legislation, which would impact the calculation of the compensation payable to the employee.

The court, in its judgment, found that the term 'any allowance' in the context of workers' compensation was not limited to allowances specifically designated as compensation but encompassed any financial benefit provided by the employer that could be seen as a substitute for the employee's lost income. The court held that the $100 weekly payment for car expenses constituted an allowance that should be deducted from the total compensation payable to Machali. Consequently, the court ruled that the employer was entitled to a reduction in the compensation payable by the amount of the allowance provided to the employee for car expenses. This decision clarified the interpretation of 'any allowance' in workers' compensation claims and provided guidance on how such allowances should be treated in future disputes.

Orders