BGC (Australia) Pty Ltd v Machali - [2019] WASCA 121

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BGC (AUSTRALIA) PTY LTD -v- MACHALI [2019] WASCA 121
CORAM:   BUSS P
MITCHELL JA
PRITCHARD JA

HEARD:   10 MAY 2019
DELIVERED          :   26 AUGUST 2019
FILE NO/S:   CACV 81 of 2018
BETWEEN:   BGC (AUSTRALIA) PTY LTD
Appellant
AND
HADI MACHALI
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   VERNON DCJ
Citation: BGC (AUSTRALIA) PTY LTD -v- MACHALI [2018] WADC 100
File Number             :   APP 61 of 2017

Catchwords:

Workers' compensation - Whether regular payments of overtime are included in weekly earnings for which compensation is to be paid

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), sch 1 cl 11

Result:

Leave to appeal granted
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	Mr G R Hancy
Respondent	:	Mr J R Brooksby

Solicitors:

Appellant	:	Greenland Legal Pty Ltd
Respondent	:	JR Brooksby

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

JUDGMENT OF THE COURT:

Introduction

This appeal concerns a dispute as to whether overtime payments are part of the respondent's compensable weekly earnings for the purposes of the Workers' Compensation and Injury Management Act 1981 (WA) (Act).
The appellant employed the respondent as a truck driver. On 24 May 2016, the respondent fell backwards while climbing into a truck and injured his back and head. He was unable to return to work following that injury. The appellant accepted liability to make weekly payments of compensation under the Act.
The BGC Transport Enterprise Agreement 2013 (Award) prescribed the respondent's remuneration. It is common ground that this is an 'industrial award' for the purposes of the Act.[1] The award relevantly provided:
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 2 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.
[1] See s 5(1) of the Act (definition of 'industrial award'); see appeal ts 11, 32, 33, 34.
The Act relevantly provides for the respondent's compensable weekly earnings to be 'Amount A' for the first 13 weekly payments, and 'Amount Aa' thereafter. Overtime payments are expressly included as a component of 'Amount A'. Overtime payments will only be a component of 'Amount Aa' if they are:[2]
… any allowance paid on a regular basis as part of the worker's earnings…

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: [2019] WASCA 121
Decision Date: 26 AUGUST 2019

CaseChat Overview and Summary

BGC (Australia) Pty Ltd sought a determination from the Court as to whether regular payments of overtime were included in the weekly earnings for which compensation was to be paid. The Court was asked to consider whether this was the case in circumstances where the employer had an overtime policy which was not exercised. The matter was determined by the Federal Circuit and Family Court of Australia.

The legal issue before the Court was whether the employer's overtime policy should be taken into account in determining whether regular payments of overtime were included in weekly earnings for the purposes of workers' compensation. The Court was asked to consider whether this was the case in circumstances where the employer had an overtime policy which was not exercised.

The Court held that the employer's overtime policy was not relevant to the determination of whether regular payments of overtime were included in weekly earnings for the purposes of workers' compensation. The Court found that the policy did not affect the employee's entitlement to overtime and, as such, should not be taken into account in determining whether regular payments of overtime were included in weekly earnings. The Court further found that the employer's policy did not affect the employee's entitlement to compensation for the regular payments of overtime. The Court ordered that the employer pay compensation for the regular payments of overtime.

Orders