DELIVERED ON: 26 August 2014 DELIVERED AT: Hobart HEARING DATE: 7 March 2014 JUDGMENT OF: Porter, Wood and Pearce JJ
CATCHWORDS:
Workers' Compensation – Assessment and amount of compensation – Amount of compensation during incapacity – Calculation of weekly earnings – Generally – Compensation payable is weekly payments equal to normal weekly earnings or ordinary time rate of pay – Normal weekly earnings means average weekly earnings during the "relevant period" – Relevant period defined as the period for which the worker was employed before the commencement of the period of incapacity, if the worker has been continuously employed by the same employer for less than 12 months – The period for which the worker was employed means the last period of continuous employment before the commencement of the period of incapacity – Separate periods cannot be aggregated.
Counsel: Appellant: J E Green Respondent: P L Jackson Solicitors: Appellant: John Green Lawyers Respondent: Jackson Tremayne & Fahey
Judgment Number: [2014] TASFC 8 Number of paragraphs: 92
Serial No 8/2014
File No 894/2013
JOHN DESMOND BRIERS v SKILLED GROUP LIMITED
REASONS FOR JUDGMENT FULL COURT
PORTER J WOOD J PEARCE J 26 August 2014
Orders of the Court
The appeal is dismissed.
The orders of the primary judge allowing the appeal from the Tribunal and quashing the determination of the appellant's entitlement to weekly payments in the sum of $591.56, are to stand.
The reference is remitted to the Tribunal for an assessment of weekly payments under s69 of the Workers Rehabilitation and Compensation Act 1988 in accordance with the Court's reasons.
Serial No 8/2014
File No 894/2013
JOHN DESMOND BRIERS v SKILLED GROUP LIMITED
REASONS FOR JUDGMENT FULL COURT
PORTER J 26 August 2014
Introduction
This appeal concerns the construction and application of provisions in the Workers Rehabilitation and Compensation Act1988 (the Act) which deal with the amount of compensation in the case of incapacity for work; principally, s69(2) and (14). It also touches on the notion of "continuous employment" in the context of casual workers and labour hire businesses.
On 29 July 2011 the appellant, Mr Briers, suffered an injury in the course of his employment with the respondent, Skilled Group Ltd (Skilled). Skilled had employed Mr Briers to work for the Hobart City Council. As a result of the injury Mr Briers was, it seems immediately, totally incapacitated for work. He made a claim against Skilled for workers compensation under the Act. The claim was accepted. Skilled commenced payments of weekly compensation at the rate of $234.21 per week.
Mr Briers wanted to dispute the rate at which he was being paid,…
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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AGLC
Briers v Skilled Group Limited [2014] TASFC 8
Case
[2014] TASFC 8
Decision Date
CaseChat Overview and Summary
The dispute in *Briers v Skilled Group Limited* concerned the calculation of weekly payments for a worker experiencing incapacity. The appeal was heard by Porter, Wood, and Pearce JJ. The core of the disagreement lay in how to determine the worker's "normal weekly earnings" for the purpose of calculating compensation under the *Workers Rehabilitation and Compensation Act 1988* (the Act).
The central legal issue before the court was the interpretation of "normal weekly earnings" and the "relevant period" for its calculation, particularly when a worker had been employed for less than 12 months. Specifically, the court had to determine whether separate periods of continuous employment with the same employer could be aggregated to establish the relevant period, or if only the last period of continuous employment prior to incapacity was to be considered.
The court reasoned that the definition of "relevant period" in the Act, which refers to "the period for which the worker was employed before the commencement of the period of incapacity," and further clarifies this as "the last period of continuous employment" if the worker has been employed for less than 12 months, unambiguously dictates that separate periods of employment cannot be aggregated. The court affirmed that the statutory language clearly indicated that only the most recent period of continuous employment was to be used for calculating normal weekly earnings.
Consequently, the appeal was dismissed. The orders of the primary judge, which allowed an appeal from the Tribunal and quashed a determination of weekly payments, were upheld. The matter was remitted to the Tribunal for a redetermination of the worker's entitlement to weekly payments in accordance with the Court's interpretation of the relevant statutory provisions.
Orders
Orders of the court
1. The appeal is dismissed.
2. The orders of the primary judge allowing the appeal from the Tribunal and quashing the determination of the appellant's entitlement to weekly payments in the sum of $591.56, are to stand.
3. The reference is remitted to the Tribunal for an assessment of weekly payments under s69 of the Workers Rehabilitation and Compensation Act 1988 in accordance with the Court's reasons.