BGC (Australia) Pty Ltd v Machali
[2018] WADC 100
•21 AUGUST 2018
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 which is in excess of or outside of the provisions of clause 12 – hours of duty, the employee shall be entitled to an additional payment of time and one-half for the first two hours and double time thereafter …
13.4An employer may require any worker to work reasonable overtime at overtime rates and such workers shall work overtime in accordance with such requirements.
3.The worker suffered compensable injury on 24 May 2016, when he fell backwards while climbing into a truck, and injured his back and head.
4.The worker has not returned to work since the injury.
5.BGC, by its workers' compensation insurer, Zurich Australia Insurance Ltd, accepted liability under the Act, and the employer made weekly payments of compensation, pursuant to the Act, for the period from the date of the injury.
6.The first 13 weekly payments were correctly made at a rate of $1,796.50 per week gross, and thereafter weekly payments were made at the rate of $1,011.18 per week (until 8 May 2017 when the payments increased to $1,033.93 per week pursuant to clause 16 of schedule 1 of the Act).
7.In each of the 13 weeks prior to the date the worker was incapacitated by his injury, he was paid overtime at both time and a half and double time. The parties agree that the worker was paid overtime 'regularly' and that the overtime payments related to the number or pattern of hours worked by the worker.
8.The reduction of the weekly payments, from the 14th weekly payment, was entirely the result of disregarding the overtime payments when calculating the rate of weekly payments.
Leave to appeal
By s 247(1) of the Act a party may appeal against an arbitrator's decision with leave of the court.
Section 247(2)(a) of the Act provides that, in a case in which the amount of compensation is at issue (as here), leave is not to be granted unless a question of law is involved and the amount in issue is the amount prescribed in the regulations.
The construction of a statute, including the meaning to be attributed to individual words or phrases used, and the question whether the statute uses an expression in any sense other than that which it has in ordinary speech, are questions of law: Collector of Customs v Agfa‑Gevaert Ltd (1996) 186 CLR 389, 396, 397.
As the issue is one of construction, namely the scope of the definition of Amount Aa, the appeal involves a question of law. There appears to be no dispute that the amount in issue exceeds the prescribed amount. Accordingly, it is open to me to grant leave to appeal and I do so.
Procedure on appeal
The appeal is by way of review of the decision appealed against: s 247(5) of the Act.
The court may, on hearing an appeal, affirm, vary or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance: s 247(7)(a) of the Act.
Workers' Compensation and Injury Management Act 1981
Section 18 of the Act requires an employer to pay compensation in accordance with sch 1 to the Act.
Clause 7(1) of sch 1 to the Act provides as follows:
Subject to section 56 and subclause (3) when total incapacity for work results from the injury a weekly payment during the incapacity equal to the weekly earnings of the worker calculated and varied in accordance with this schedule.[1]
[1] Section 56 and subclause (3) are not relevant to the issues to be determined in this appeal.
Clause 11 of sch 1 to the Act defines the term 'weekly earnings' for the purpose of sch 1 of the Act, and provides as follows:
(1)Subject to clauses 12 to 16, for the purposes of this schedule weekly earnings has the meaning given by this clause.
(2)In this schedule –
'Amount A' means the rate of weekly earnings payable, at the time of the incapacity, for the appropriate classification under the relevant industrial award, or which would have been payable if the relevant industrial award were still in operation, plus –
(a)any over award or service payments paid on a regular basis as part of the worker's earnings; and
(b)overtime; and
(c)any bonus or allowance;
'Amount Aa' means the rate of weekly earnings payable, at the time of the incapacity, for the appropriate classification under the relevant industrial award, or which would have been payable if the relevant industrial award were still in operation, plus –
(a)any over award or service payments paid on a regular basis as part of the worker's earnings; and
(b)any allowance paid on a regular basis as part of the worker's earnings and related to the number or pattern of hours worked by the worker; and
(c)any other allowance prescribed by the regulations;
...
'Bonus or allowance' means any bonus or incentive, shift allowance, weekend or public holiday penalty allowance, district allowance, industry allowance, meal allowance, living allowance, clothing allowance, travelling allowance, or other allowance;
'Earnings' includes wages, salary and other remuneration;
'Overtime' means any payment for the hours in excess of the number of ordinary hours which constitute a week's work.
...
(3)In the case of a worker whose earnings are prescribed by an industrial award when the injury occurs, weekly earnings are –
(a)for the first to the 13th weekly payments: Amount A but not more than Amount C or less than Amount D;
(b)for weekly payments after the 13th: Amount Aa, or a lesser amount determined in accordance with the regulations, but not more than Amount C or less than Amount D.
...
(5)Subject to subclause (6) –
(a)the references in the definition of Amount A in subclause (2) to overtime and any bonus or allowances; and
(b)the references in the definition of Amount Aa in subclause (2) to allowances,
are references to those items averaged over the period of 13 weeks ending at the date of incapacity.
(6)If the worker was totally or partially incapacitated from working or for any other reason did not work during any part of the period of 13 weeks mentioned in subclause (5), that part is to be disregarded in calculating the average amount per week that the worker was paid over that period.
Issue in the appeal
It was not in dispute before the arbitrator, and is conceded for the purposes of this appeal, that the overtime payments received by the respondent were both regular and related to the number and pattern of hours the respondent worked.
Accordingly, the only issue to be determined is whether the arbitrator erred in finding that the overtime payments fell within the meaning of the words 'any allowance paid … as part of the worker's earnings …', in the definition of Amount Aa.
In determining that the overtime payments did fall within the meaning of 'any allowance', the arbitrator relied on the decisions of Justice Wheeler in EG Green & Sons Pty Ltd v Sabourne [2009] WASCA 172 (Sabourne), and Commissioner McCann in Currie v Western Power Corporation [2011] WACC C11‑2011, 20 June 2011 (Currie). The arbitrator found that, whilst he was not bound to follow Currie, and that the relevant statements in Sabourne were obiter, those decisions were persuasive and, as such, he ought not depart from them.
Appellant's submissions
In interpreting the word 'allowance' to exclude overtime payments, the appellant relies, primarily, on the separate use of the word 'overtime' in the definition of 'Amount A', coupled with the lack of a specific reference to 'overtime' in the definition of 'Amount Aa'.
The appellant also refers to the separate use of the words 'overtime' and 'allowance' in the explanatory memorandum to the Workers' Compensation Reform Act 2004 (WA) ('Reform Act'), by which the calculation of term Amount Aa was amended to include allowances.
The appellant says that the reasoning in Sabourne, which concerned whether bonuses or incentives were included within the meaning of Amount Aa, cannot be extended to overtime payments.[2] The appellant relies on Thompson v Roche Bros Pty Ltd [2004] WASCA 110 (Thompson), in which the Court of Appeal considered the meaning of the word 'overtime' in the definition of Amount A. The appellant says that having regard to Thompson, it is clear that, prior to the 'pattern of hours amendment' (a reference to the definition of Amount Aa in cl 11(2)(b) of sch 1 of the Act), the legislative intention was to deduct overtime from the Amount Aa rate. The appellant says further that there is nothing in the wording of cl 11(2)(b) which evidences an intention to reintroduce overtime payments into the calculation of the Amount Aa rate.[3]
[2] Appellant's submissions par 24.
[3] Appellant's submissions par 25.
The appellant says that Currie concerned a call out allowance and not overtime and cannot be taken as authority in relation to overtime 'against the background of the Thompson case'.
Finally, the appellant says, as I understand the submission, that Parliament's intention to continue to exclude overtime payments from Amount Aa may be inferred from Parliament's failure to specifically refer to overtime either in the explanatory memorandum or the amendment itself.[4]
[4] Appellant's submissions par 27.
Respondent's submissions
The respondent submits that the ordinary meaning of the word 'allowance' encompasses the overtime payments.[5]
[5] Respondent's submissions par 9.
The respondent submits that the consideration of the term 'overtime' in Thompson is not relevant to a consideration of whether the term 'allowances' encompasses overtime payments paid on a regular basis.[6]
[6] Respondent's submissions pars 13 and 14.
The respondent says that it does not follow from the fact that overtime is expressly mentioned in Amount A and not in Amount Aa, that overtime cannot fall within the payments included under Amount AA. The respondent says that the explanation for the difference in wording is that overtime must be included in Amount A, but is only included in Amount Aa if it also satisfies the specific requirements that the allowance be paid on a regular basis and relate to the number or pattern of hours worked.[7]
[7] Respondent's submissions pars 27 and 28.
With respect to the relevance of the explanatory memorandum, the respondent says that the meaning of the words in the legislation are clear and that resort cannot be made to secondary material to displace the ordinary and natural meaning of the statutory text.[8]
[8] Respondent's submissions pars 18 – 26.
The respondent says that, although the comments in Sabourne were obiter, they were persuasive, as were the comments in Currie. Accordingly, the respondent submits that the arbitrator correctly interpreted the word 'allowance' in the definition of Amount Aa in cl 11(2)(b) as encompassing overtime payments, in line with those comments.[9]
[9] Respondent's submissions pars 31 – 41.
Principles of statutory interpretation
The starting point for the process of interpreting the meaning of a statutory provision is the ordinary and grammatical meaning of the words, having regard to their context and legislative purpose: Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1 [26] (French CJ, Hayne, Keifel & Bell JJ).
The context of the words of a statute includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]. However, the purpose of legislation must be derived from what the legislation says and not from any assumption about the desired or desirable reach or operation of the relevant provisions: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 293 ALR 412 [26] (French CJ & Hayne J).
Where more than one interpretation is open, the court is required to prefer a construction that would promote the purpose or object underlying the legislation over a construction which would not: s 18 Interpretation Act 1984 (WA).
Extrinsic material, including explanatory memoranda, may be taken into account in determining the meaning of legislation, whether that is to confirm the ordinary meaning or to determine the meaning where the provision is ambiguous or the ordinary meaning would lead to a manifestly unreasonable result: s 19(1)(a) and s 19(1)(b) Interpretation Act 1984 (WA). However, extrinsic material cannot be relied on to displace the clear meaning of the language employed in the text of the legislation.
It may be presumed that different words used with an Act have different meanings. However, it has been said that this presumption is of very little weight: Bond Corp Holdings Ltd v Sulan (1990) 3 WAR 49, 60 (Malcolm CJ & Rowland J agreeing).
Amendment of the definition of Amount Aa
The definition in the Act of Amount Aa was amended by the Reform Act with effect from 4 January 2005.
Before the Reform Act the definition of Amount Aa read as follows:
Amount Aa means the rate of weekly earnings payable, at the time of the incapacity, for the appropriate classification under the relevant industrial award, or which would have been payable if the relevant industrial award were still in operation, plus any over award or service payments paid on a regular basis as part of the worker's earnings.
That definition was amended by the Reform Act to read as follows:
Amount Aa means the rate of weekly earnings payable, at the time of the incapacity, for the appropriate classification under the relevant industrial award, or which would have been payable if the relevant industrial award were still in operation, plus —
(a)any over award or service payments paid on a regular basis as part of the worker's earnings;
(b)any allowance paid on a regular basis as part of the worker's earnings and related to the number or pattern of hours worked by the worker; and
(c)any other allowance prescribed by the regulations.
Accordingly, the effect of the amendment was to add the amounts in cl 11(2)(b) and cl 11(2)(c) to the calculation of the rate of weekly earnings in Amount Aa. The definition of Amount A was not amended.
The explanatory memorandum commented on the amendment to the definition of Amount Aa in cl 11, saying that the Bill:
Amends the calculation of weekly earnings in 'Amount Aa' so that for workers whose earnings are prescribed by an industrial award, weekly earnings payable under this step down provision will, in addition to the current entitlements in Amount Aa, also include any allowances paid on a regular basis as part of the worker's earnings related to the number or pattern of hours worked, or any other allowances prescribed by the regulations (these other allowances do not have to be paid on a regular basis or be related to the number and pattern of hours worked).
The explanatory memorandum does not expressly state an intention to exclude overtime payments from the scope of the allowances to be included in the calculation of Amount Aa.
Analysis of the authorities
Sabourne considered the question of whether, in a situation where a worker was remunerated under an award pursuant to a piecework system, and the award also made provision for a minimum weekly amount payable to the worker, any remuneration in excess of that minimum weekly amount fell outside the scope of Amount Aa. This required consideration of whether the definition of Amount Aa was to be read as excluding every payment capable of being regarded as an 'incentive' within the definition of 'bonus or allowance' in cl 11(2).
In Sabourne, Justice Wheeler discussed the interpretation of 'Amount Aa' as follows:
20.It is clear that there is or may be some overlap between the opening four lines of Amount A and the subparagraphs which follow it, between the opening words of Amount Aa and the subparagraphs which immediately follow it, and between the payments to which the three subparagraphs of Amount A apply and the differently described amounts referred to in the three subparagraphs of Amount Aa. For example, so far as Amount A is concerned, it is possible to envisage an award which requires regular service payments or overtime, and treats them as if they were part of the worker's ordinary weekly earnings. Other awards might treat payments of that kind differently, or might make no provision (so that payments of that kind would be made by agreement between the worker and employer in addition to the payments required by the award). It does not appear to follow from the use of the expression 'plus' in the definition of Amount A, that the legislature contemplated that the payments described in the three subparagraphs following that word would always, or necessarily, be incapable of being characterised as part of the 'rate of weekly earnings payable' under the relevant award. Rather the legislative intent seems to have been to ensure that, whether the award catered for them or not, payments of that kind continued to be made to the worker during the first 13 weeks.
21.It is submitted by the appellant that the definition of Amount Aa must be read as if it expressly excluded any payments which answered the description of the payments referred to in subpars (b) or (c) of Amount A. That was said to follow from the fact that the legislature had expressly included those amounts in the definition of Amount A, but had, deliberately, failed to include them in the definition of Amount Aa. In my opinion, that is too simplistic an analysis. It seems to me for example, that the amount described in subpar (b) of Amount Aa is capable of including some (but not all) types of overtime payment; that is, it would include overtime which satisfied the twin conditions of being paid on a regular basis and being related either to the number or pattern (eg, regular excess hours, or regular 'unsocial' hours) worked by the worker. Similarly, if one considers the expression 'any bonus or allowance' (subpar (c) of Amount A), the definition of that expression in cl 11 states that 'it means any bonus or incentive … or other allowance'. However, as I have noted, subpar (b) of Amount Aa expressly includes certain types of allowances. It may also be the case, although it is not necessary to determine for present purposes, that there will be payments which are capable both of answering the description of a 'bonus or incentive' and of an 'over award … payment paid on a regular basis', which latter type of payments is included in subpar (a) of both Amount A and Amount Aa.
22.Because of the overlap between the various expressions used, it is not possible to read cl 11 as if the legislature had expressly excluded from the definition in Amount Aa, every payment capable of answering the definition of any of the subpara (a) to (c) of Amount A. I am fortified in that conclusion by the fact that, in a prior form, cl 11 has expressly excluded certain types of payments from the definition of 'weekly earnings', including payments which were a 'bonus or incentive'. I set out the text of that provision shortly; for present purposes, it is enough to note that it seems to me that in moving from an express exclusion of bonuses and incentives to the present form of cl 11, the legislature may have recognised the potential for overlap in some cases, and intended to exclude bonuses and incentives only where they did not otherwise fairly fall within the definition used in the words of Amount Aa.
...
25.I accept that, as the appellant submits, a legislative purpose behind the difference between the definitions of Amount A and Amount Aa is that, after an initial period, a worker is to be encouraged to return to work, by the withdrawal of some types of income support. However, there are a number of other public policy considerations which it appears likely that the legislature would have taken into consideration. There is a need to balance considerations of fairness between worker and employer (or employer's insurer). It would be fair to withdraw payments which were of a' one off' nature (eg, an annual bonus, where a business had been particularly profitable) or an unusual incentive (eg, 'salesman of the month' loading), or which related to expenses that an injured worker would no longer have (eg, dry cleaning or travel), but not those which both worker and employer contemplated would be a regular part of the worker's remuneration. These considerations appear to me to explain the reference to 'regular' payments in par (b) of Amount Aa ...[10]
[10] Buss and Newnes JJA agreeing at [24].
As the arbitrator recognised, the issue of whether overtime payments were excluded from the meaning of the word 'allowance' was not considered in Sabourne. However, the basis for the argument that bonuses or incentives were excluded from the meaning of 'allowance' was the same as that advanced in this case: namely that the express reference to 'overtime' and 'any bonus or allowance' in Amount A (which term included 'incentives'), required a construction of the single word 'allowance' in Amount Aa, to exclude bonuses or incentives.[11] Justice Wheeler rejected that proposition as 'too simplistic an analysis'.[12]
[11] EG Green & Sons Pty Ltd v Sabourne [2009] WASCA 172 [22] (Wheeler J).
[12] EG Green & Sons Pty Ltd v Sabourne [2009] WASCA 172 [21] (Wheeler J).
In Currie a decision of the Dispute Resolution Directorate Western Australia, Commissioner McCann considered whether the term 'allowance', included a call out payment. The employer in that case argued that the call out payment was a normal payment for overtime and, therefore, not an allowance.
Commissioner McCann accepted that Justice Wheeler's comments in Sabourne were not binding on him. However, Commissioner McCann followed Justice Wheeler's reasoning, and held the call out payments were potentially an allowance falling within the meaning of Amount Aa (subject to meeting the requirements of being paid on a regular basis and relating to the number or patter of hours worked).[13] Commissioner McCann considered that he should follow Justice Wheeler because the comments formed an integral part of the substantive reasoning of the court and were consistent with the decisions of Wishart v MPL Laboratories (Unreported, WASCA, Library No 960529, 17 September 1996) and Mutual Acceptance Co Ltd v Federal Commissioner of Taxation (1944) 69 CLR 389.[14]
[13] Currie v Western Power Corporation [2011] WACC C11- 2011, 20 June 2011 [43] ‑ [48] (Commissioner McCann).
[14] Currie v Western Power Corporation [2011] WACC C11- 2011, 20 June 2011 [20] (Commissioner McCann).
In Wishart v MPL Laboratories Justice Steytler considered the meaning of the word 'allowance' in the context of a previous version of cl 11. Under that iteration, weekly earnings were defined as excluding payment for overtime and:
any bonus or incentive, shift allowance, week-end or public holiday penalty allowance, district allowance, industry allowance, meal allowance, living allowance, clothing allowance, travelling allowance, or other allowance.
As a payment for overtime was expressly excluded from the definition of weekly earnings in that case, it was not necessary for Justice Steytler to comment on it. However, he held that the reference to allowances had the effect of excluding any additional sums paid to the worker for the purpose of meeting some particular requirement connected with the service rendered by the employee or as compensation for unusual conditions of that service, regardless of whether or not such items might otherwise fairly be described as part of wages in the ordinary sense.
In making that finding, Justice Steytler followed the meaning given to the word 'allowance' in Mutual Acceptance Co Ltd v Federal Commissioner of Taxation as follows:
Latham CJ said … When the word is used in connection with the relation of employer and employee it means in my opinion a grant of something additional to ordinary wages for the purpose of meeting some particular requirement connected with service rendered by the employee or as compensation for unusual conditions of that service. Expense allowances, travelling allowances, and entertainment allowances are payments additional to ordinary wages made for the purpose of meeting certain requirements of a service. Tropical allowances, overtime allowances and extra pay by way of 'dirt' money are allowances as compensation for unusual conditions of service. The latter class of allowances represents higher wages paid on account of special conditions, and may fairly be described as part of wages in the ordinary sense …
Dixon J … considered (at 403) that the word 'allowance', in its context, was intended to cover 'any payment beyond the agreed salary of the employee for services or additional services rendered by him.' [15]
[15] Wishart v MPL Laboratories (Unreported, WASCA, Library No 960529, 17 September 1996) pages 11 and 12.
Following this, the word 'allowance' is clearly capable of including an overtime payment, subject to the question of whether Justice Wheeler's reasoning in Sabourne should not be applied to such payments as submitted by the appellant, relying on Thompson.
Justice Heenan said, in Thompson, in relation to the meaning of the word 'overtime' in the definition of Amount A (which definition was the same as the current definition) that:
When the definition in sch 1 of the Act provides that 'overtime' means any payment for the hours 'in excess of the number of ordinary hours which constitute a week's work' I can see no alternative to the conclusion that the ordinary hours which constitute a week's work can only mean, the standard number of hours for which the standard hourly remuneration is normally paid for employment under the industrial award or, in this case, the industrial agreement. In other words, overtime is meant to include time worked by employees, whether on a voluntary or compulsory basis, for which premium hourly rates of remuneration are paid either because they are additional to the standard hours conventionally worked or because they are outside conventional hours such as occurs when employees are engaged on shift work or at weekends.[16]
[16] Thompson v Roche Bros Pty Ltd [2004] WASCA 110 [39] (Steytler & Le Miere JJ agreeing at [1] and [58] respectively).
Justice Heenan went on to say that:
In sch 1 cl 11(2) of the Act the statutory definition expressly confines the term 'overtime' to the hours worked in excess of the number of ordinary hours. So, in the present case both by the application of the statutory definition and by the employer's use of language the appellant's overtime means the time worked beyond the 'ordinary hours' fixed by the agreement which, on average are 40 hours per week.[17]
[17] Thompson v Roche Bros Pty Ltd [2004] WASCA 110 [40] (Steytler & Le Miere JJ agreeing at [1] and [58] respectively).
It does not necessarily follow from Justice Heenan's finding that the ordinary meaning of the word 'overtime' referred to premium rates for hours worked outside an employee's ordinary working hours, that the word 'allowance' in Amount Aa cannot include a payment for overtime. In fact the contrary would appear to be true, as such a payment may be said to be 'a grant of something additional to ordinary wages for the purpose of meeting some particular requirement connected with service rendered by the employee or as compensation for unusual conditions of that service', consistently with the meaning of the term 'allowance' in Mutual Acceptance Co Ltd and Wishart.
Whilst I accept that Justice Wheeler's comments in Sabourne were obiter, they are in, my view, persuasive and should be followed. I consider that a proper construction of the definition of Amount Aa includes overtime payments received regularly and relating to the number and pattern of hours the respondent worked. Accordingly, the arbitrator did not err in making that finding.
Conclusion
The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
ASSOCIATE TO JUDGE VERNON15 AUGUST 2018
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