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Bhatia v Cameron Logistics Pty Ltd

Bhatia v Cameron Logistics Pty Ltd

Case [2023] NSWPIC 540 16 October 2023

Calculation of Pre-Injury Average Weekly Earnings

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CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bhatia v Cameron Logistics Pty Ltd [2023] NSWPIC 540
APPLICANT:	Arjun Bhatia
RESPONDENT:	Cameron Logistics Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	16 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Calculation of pre-injury average weekly earnings (PIAWE) under schedule 3 of the Workers Compensation Act 1987 and Part 4 of the Workers Compensation Regulation 2016 clause 8C; whether the period used to calculate PIAWE should exclude the period before pay increase under an enterprise agreement; Cain v Tamworth Aboriginal Medical Service, Firth v HammondCare, Wake v State Emergency Services and Field v Secretary, Department of Education considered; Held – that the calculation of PIAWE should exclude the period before the pay increase.
DETERMINATIONS MADE:	The Commission finds: 1. There was a change of an ongoing nature to the applicant’s employment arrangement resulting in a financially material change to his earnings on 8 August 2023 so that the period before that date is to be disregarded in the calculation of pre-injury average weekly earnings. 2. The applicant’s pre-injury average weekly earnings are $2,324.72.

STATEMENT OF REASONS

BACKGROUND

Arjun Bhatia is employed by Cameron Logistics Pty Ltd (Cameron) as a driver. On 29 May 2023 he suffered a hernia injury for which Cameron’s insurer accepts liability and he remains in receipt of weekly compensation. He is awaiting surgery.
The only issue for determination is the calculation of Mr Bhatia’s pre-injury average weekly earnings (PIAWE). Mr Bhatia says that his PIAWE are $2,324.72 and Cameron says that they are $2,213.29.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The proceedings were listed for preliminary conference on 26 September 2023.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Because of the narrow dispute, I directed that the parties file written submissions.

EVIDENCE

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (ARD), and
(b) Reply.
There is no dispute as to the amount Mr Bhatia earned on a week by week basis. After the week ending 7 August 2022, his weekly earnings were adjusted to take account of an increase provided for in Cameron’s enterprise agreement.
The enterprise agreement relied on is the Glen Cameron Nominees Pty Ltd NSW Enterprise Agreement – 2021 – 2024.[1] Clause 8.3 set out the rates of pay for the first period after the ratification of the agreement and clauses 8.4 and 8.5 dealt with annual increases in August 2021 and 2022. Clause 8.6 provided that the rate would be increased in the week commencing 7…

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.

Continue reading Bhatia v Cameron Logistics Pty Ltd

Details

AGLC: Bhatia v Cameron Logistics Pty Ltd [2023] NSWPIC 540
Case: [2023] NSWPIC 540
Decision Date: 16 October 2023

CaseChat Overview and Summary

The case of Bhatia v Cameron Logistics Pty Ltd involved a dispute regarding the calculation of pre-injury average weekly earnings (PIAWE) under the Workers Compensation Act 1987 and the Workers Compensation Regulation 2016. The claimant, Mr Bhatia, sought compensation from his employer, Cameron Logistics Pty Ltd, following an injury sustained at work. The central issue was whether the period used to calculate PIAWE should include the period before a pay increase under an enterprise agreement.

The court had to determine the appropriate method for calculating PIAWE, specifically whether the period prior to the pay increase should be excluded. The court considered previous cases such as Cain v Tamworth Aboriginal Medical Service, Firth v HammondCare, Wake v State Emergency Services, and Field v Secretary, Department of Education, to understand the principles governing PIAWE calculations. The court examined the legislative provisions, particularly clause 8C of Part 4 of the Workers Compensation Regulation 2016, and assessed the impact of the pay increase on the claimant's earnings.

The court concluded that the calculation of PIAWE should exclude the period before the pay increase. This decision was based on the understanding that the pay increase represented a change in the claimant's contractual earnings, which should not be included in the PIAWE calculation. The court found that including the period before the pay increase would not accurately reflect the claimant's average earnings prior to the injury. Consequently, the court ruled in favour of the claimant, determining that the PIAWE should be calculated excluding the period before the pay increase.

The final orders of the court specified that the claimant's PIAWE should be recalculated based on the earnings after the pay increase, leading to a different assessment of the compensation payable. This decision provided clarity on the calculation of PIAWE in cases where there are changes in an employee's earnings due to enterprise agreements.

Orders