Briers v Skilled Group Limited
[2014] TASFC 8
•26 August 2014
[2014] TASFC 8
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Briers v Skilled Group Limited [2014] TASFC 8
PARTIES: BRIERS, John Desmond
v
SKILLED GROUP LIMITED
FILE NO: 894/2013
JUDGMENT
APPEALED FROM: Skilled Group Limited v Briers [2013] TASSC 40
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.
Workers Rehabilitation and Compensation Act1988, (Tas), s69(2), (14).
Aust Dig Workers' Compensation [392]
REPRESENTATION:
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 Act 1988 (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, and referred the question to the Workers Rehabilitation and Compensation Tribunal. There was little dispute about the essential facts. The principal focus was on the construction and application of relevant parts of s69 of the Act. On 25 June 2012, the Tribunal (constituted by Commissioner Chandler) determined that the amount of the weekly payment should be $591.56.
As a party aggrieved by the Tribunal's determination in point of law as provided for in s63 of the Act, Skilled appealed against the determination. Tennent J allowed the appeal, quashed the determination of the Tribunal, and gave liberty to apply for the purposes of finalising the proceedings in accordance with her Honour's findings: [2013] TASSC 40. Mr Briers has appealed against the orders of Tennent J. For the reasons which follow, I would dismiss the appeal.
The provisions of the Act
The provisions of the Act which are the focus of this appeal are as follows:
"69 Amount of compensation in case of incapacity
(1) Subject to this section, where total or partial incapacity for work results from an injury suffered by a worker and where the existence of such total or partial incapacity is supported by a certificate in a form approved by the Board signed by a medical practitioner or accredited person, the compensation payable to him under this Act is —
(a) in the case of the total incapacity of the worker for work, weekly payments equal to —
(i) the normal weekly earnings of the worker; or
(ii)the ordinary time rate of pay of the worker for the work in which, and for the hours during which, the worker was engaged immediately before the period of incapacity —
whichever is the greater; or
(b) …
(2) For the purposes of this section, if the period of employment is 14 days or less, the normal weekly earnings of the worker before the commencement of the period of incapacity are to be taken to be —
(a) equivalent to the normal weekly earnings of another worker who is employed by the same employer and performing comparable work; or
(b) if there is no such other worker, the worker's expected weekly salary calculated on the hourly rate of pay for the work that he or she agreed, or was rostered, to perform in the pay period in which the incapacity occurred.
…
(14) In this section —
normal weekly earnings, in relation to a worker who is incapacitated for work, means the average weekly earnings of the worker during the relevant period;
relevant period means —
(a) if the worker has been continuously employed by the same employer for 12 months or more, the 12 months immediately before the commencement of the period of incapacity; or
(b) if the worker has been continuously employed by the same employer for less than 12 months, the period for which he or she was employed before the commencement of the period of incapacity."
The proceedings before the Commissioner
A summary of the essential facts before the Tribunal is as follows. It was noted to be "common ground that [Mr Briers] has been employed at all relevant times" by Skilled. (It is not clear what the Tribunal meant by "at all relevant times".) Skilled conducts a labour hire business. Mr Briers was, and had been since 15 November 2010, a member of Skilled's labour pool as a general labourer and truck driver. From 15 November 2010 until he was injured on 29 July 2011, Skilled hired out Mr Briers' labour. The practice was that when Skilled received a request for labour, it would assign an employee from its labour pool to the task. Throughout the period referred to, the only client of Skilled to whom Mr Briers' labour was hired was the Hobart City Council.
Between 15 November 2010 and 30 April 2011, Mr Briers performed brush-cutting work for the Council in the foothills of Mount Wellington. During this period he worked either four or five days in each week, apart from two weeks towards the end of that period in which he did not work at all. For three weeks commencing 2 May 2011, Mr Briers performed labouring duties for the Council at another site. In each of those weeks he worked either four or five days. Mr Briers performed no work in the week ended 28 May 2011. In June and July 2011, Mr Briers continued to work for the Hobart City Council but at much reduced hours.
On the day he was injured Mr Briers was employed as an attendant at the Hobart Tip. For the two weeks immediately before Mr Briers' injury no "Telephone Enquiry/Order Form" was generated. There was no evidence of the terms of the request for his work during that period which, the evidence suggested, was for one day's work in each of those two weeks.
In the Tribunal's reasons, the Commissioner produced a composite table taken from a number of tables which are in evidence before him. I set out the table which the Commissioner prepared, but to which I have added the third column which shows the number of hours worked in each period as set out in one of the tables in evidence.
Week number
End of work week date
Number of
hours worked
Gross earnings
1
20/11/2010
40.5
$817.50
2
27/11/2010
41.5
$817.50
3
04/12/2010
39
$817.50
4
11/12/2010
34
$731.42
5
18/12/2010
25.5
$559.37
6
25/12/2010
38
$833.57
Week number
End of work week date
Number of
hours worked
Gross earnings
7
01/01/2011
25.5
$559.37
8
08/01/2011
33.5
$734.86
9
15/01/2011
42.5
$833.57
10
22/01/2011
42
$833.57
11
29/01/2011
34
$745.82
12
05/02/2011
42
$833.57
13
12/02/2011
42.5
$833.57
14
19/02/2011
33.5
$734.86
15
26/02/2011
41.25
$833.57
16
05/03/2011
42
$833.57
17
12/03/2011
42.5
$833.57
18
19/03/2011
33.5
$734.86
19
26/03/2011
31
$680.02
20
02/04/2011
42
$833.57
21
09/04/2011
42.5
$833.57
22
16/04/2011
Nil
Nil
23
23/04/2011
32
$1204.74
24
30/04/2011
Nil
Nil
25
7/05/2011
34
$745.82
26
14/05/2011
42
$833.57
27
21/05/2011
34
$745.82
28
28/05/2011
Nil
Nil
29
04/06/2011
4.5
$98.71
30
11/06/2011
8.5
$186.46
31
18/06/2011
17
$312.91
32
25/06/2011
Nil
Nil
33
02/07/2011
8.5
$186.46
34
09/07/2011
8
$175.49
35
16/07/2011
17
$372.91
36
23/07/2011
7.5
$164.52
37
30/07/2011
[?]
$197.42
The Tribunal noted that the table covered a period of 37 weeks, including the week in which the worker was injured and became incapacitated. The Tribunal observed that the worker worked during each of the first 21 weeks, but during the following 16 weeks there were four separate weeks when he did not work at all, the last of those being week 32, ending 25 June 2011. It was also noted that Mr Briers worked during each of the last five weeks leading up to his injury, albeit for only modest hours. The total gross earnings paid for the 37 week period was $21,493.61.
Before the Tribunal, Skilled's position was that the amount of weekly payments to be paid to Mr Briers should be calculated by dividing the total gross wages paid to Mr Briers in the four weeks prior to the week in which he became incapacitated (weeks 33 – 36 inclusive) by the total hours worked over those four weeks. That resulting average hourly rate was then multiplied by the average number of hours worked each week. In mathematical terms that process is expressed in the following calculation: $186.46+$175.49+$372.91+$164.52 ÷ 41 hours = $21.93 x (41÷4 hours) $224.78. Another way of nearly reaching the same result is to average the total gross earnings for each of those four weeks: $224.85.
Mr Briers' submission was that he was continuously employed, within the meaning of s69(14)(b), for the 37 week period as shown in the table. As the total amount received was $21,493.61, the weekly average was $580.90 and that amount should be the determined weekly payment.
The Tribunal took the view that once any period of continuous employment was established, s69(14)(b) enabled all periods of Mr Briers' employment to be taken into account. The reasons given were as follows:
"16 It is apparent that ss69(14) requires the calculation of the worker's average weekly earnings by reference to a 'relevant period.' That period will be, by para (a) of ss69(14), the period of 12 months before the commencement of the worker's period of incapacity if the worker has been continuously employed by the same employer for 12 months or more. In the case at hand the worker began work for the employer on 15 November 2010 and became incapacitated by his injury occurring 8 months later. As he was employed for a period less than 12 months para (a) of ss69(14) cannot apply.
17 This brings me to para (b) of ss69(14). It is a pre-condition for its application that the worker has been continuously employed by the same employer for less than 12 months. I make the observation that this pre-condition does not stipulate a start time or an end time for the term of the continuing employment. Particularly, it does not prescribe that the continuing employment be on-going up to the time of injury or the commencement of the worker's period of incapacity.
18 In this case it is common ground that the worker has been employed at all relevant times by the same employer, namely Skilled Group Ltd. It is also common ground that the worker commenced work in November 2010 and last worked in July 2011, a period less than 12 months. This leaves only one issue to be resolved, namely whether the worker was 'continuously employed'?
19 The term continuously employed is not defined in the Act. It should be given its ordinary meaning. The Macquarie Dictionary provides some guidance. It ascribes the adjective 'continuous' with these meanings; 'having the parts in immediate connection; unbroken; uninterrupted in time; without cessation.' The evidence shows that the worker worked on a fulltime or near fulltime basis for the 21 week period beginning in November 2010 and ending in April 2011. For this entire period he was hired to the Council by the employer and undertook brush cutting work. These facts clearly establish, in my view, that the worker's employment for this period was unbroken and uninterrupted. It follows that it was continuous. This, in my view, is sufficient to satisfy the pre-condition to para (b) making it unnecessary for me to consider whether the worker was continuously employed at any time after his brush cutting work ended and before his injury. I can now move to consider the 'relevant period' as defined by the operative portion of para (b).
20 A start point is to make a finding upon the commencement of the worker's period of incapacity. The worker was injured on Friday 29 July 2011. It was on that same day that he was first certified to be incapacitated for work. I therefore find that the worker's period of incapacity commenced on 29 July 2011.
21 I now turn to consider the period for which the worker was employed before 29 July 2011. I note that this period, by para (b), is defined by the term 'was employed' and has not incorporated the adjective 'continuously' so to confine the period by which the worker's average weekly wage is calculated to that period of continuous employment determined for the purposes of the pre-condition to para (b)."
The Tribunal went on to conclude that Mr Briers was employed for the period which began in week 1 (the week ending 20 November 2010) and ending in week 23 (23 July 2011) save for weeks 22, 24, 28 and 32. "This then is the relevant period for the purposes of averaging the worker's weekly earnings." From the total of $21,493.61 earned for the 37 weeks, the Tribunal deducted $197.42 being the amount earned in the week before the incapacity. The resultant figure divided by 36 weeks gave an average of $591.56. "It is this amount which is the worker's normal weekly earnings for the purposes of s69(1)(a)(i)." I note that as counsel for Skilled has accepted, there is no justification for ignoring the earnings in the week of the injury.
The appeal from the Tribunal's determination
The errors of law which Skilled alleged the Tribunal had made were that:
· the finding that normal weekly earnings were $591.56 was a finding that was not reasonably open;
· there was a failure to identify in accordance with s69(14)(b) of the Act, the period for which Mr Briers was employed before the commencement of incapacity in order to determine the "relevant period";
· it was wrong to treat all separate and distinct periods for which Mr Briers was employed as constituting the "relevant period"; separate and distinct periods cannot be aggregated;
· the Tribunal failed to consider whether the period of employment was a period of 14 days or less.
As to the relationship between the parties, Skilled argued that despite some appearance of continuity, Mr Briers had been employed under a series of successive ad hoc contracts. It accepted, however, that there may be a sufficient element of continuity in the five weeks before the injury and incapacity. Applying what it says to be the proper construction of s69(14), that gives rise to average weekly earnings of $219.36.
As an alternative, Skilled submitted that Mr Briers was employed only on the day of the injury and, as the period of employment was less than 14 days, his normal weekly earnings were not capable of being calculated by reference to the Act, s69(14). It was further argued that there was no, or no sufficient, evidence which would enable Mr Briers' normal weekly payments to be calculated by reference to the Act, s69(2). It submitted that, in those circumstances, the amount of $224.78 represented a fair and reasonable figure for Mr Briers' entitlement.
Mr Briers argued for the correctness of the construction of s69(14) adopted by the Tribunal. He also persisted with an alternative submission that the facts before the Tribunal permitted a finding that he was continuously employed by Skilled for the 37 weeks, and that on that basis, the average weekly amount was $580.90.
The primary judge's reasons
The primary judge set out the essential facts on which the Tribunal had proceeded. Her Honour set out the relevant legislation, the grounds of appeal, the parameters of the dispute, and discussed some material relevant to the interpretation of s69(14)(b). Her Honour then noted that the starting point for the purpose of calculating Mr Briers' entitlement to payments of compensation was s69(1)(a)(i). She said that there was no evidence to suggest that s69(1)(a)(ii) had any relevance, going on to note that in s69(14), the only part of the definition which might be engaged in this case was par(b).
Her Honour went on to say:
"15 Both parts of the definition of 'relevant period' are dependent on a finding that a worker has been continuously employed, either for more or less than 12 months. It is not surprising that, in the case of an employee who was employed for a continuous period of longer than 12 months, Parliament would confine the period of that continuous employment which was relevant for the purpose of calculating average weekly earnings to the most recent 12 month period prior to the occurrence of an injury.
16 As to the second part of the definition, it does not provide that, if an employee has been employed by an employer for less than 12 months and there was a period of continuous employment at some stage during the overall period that the worker was employed for however long or short, unconnected in time to the date of the injury, then all periods of employment, whether continuous or otherwise, between the date the employee was first employed and the injury, may be aggregated for the purpose of calculating average weekly earnings. That is how the learned commissioner interpreted that part of the definition. With respect, that interpretation is not consistent with Parliament's approach in the first part of the definition. Further, the second part of the definition is clearly designed to deal with a worker who might, for example, have been continuously employed by an employer prior to an injury, but only for, say, a matter of weeks.
17 The approach taken by the learned commissioner has, in my view, the potential to create an absurdity. If, for example, the respondent had not worked at all between the end of the continuous period of employment ending in April 2011 and the day of his injury, the approach taken by the learned commissioner would have had the result that the respondent would have been paid compensation by reference to what he earned between November 2010 and April 2011. That would produce a clear inconsistency with the principle identified in the second reading speech to the effect that weekly compensation should be no more or less than the worker would have received if he or she had continued to work. The evidence was that at the time of the injury, the respondent had only been working about one day a week. There was no evidence to suggest that was going to change.
18 In my view, if the worker was not continuously employed at the time of his injury, then s69(14) simply does not allow a calculation of average weekly earnings for the purpose of s69(1)(a)(i)."
In the passage set out, the primary judge referred to the time of the injury as the end point of the 12 months' period referred to in s69(14) as the point in time at which continuous employment is assessed. Of course, the subsection refers to the "commencement of the period of incapacity" and not the date of the injury. It is not always the case, and it is unsafe to assume, that the onset of incapacity coincides with the injury: Scott v Sun Alliance Australia Limited (1993) 178 CLR 1 at 10 – 11; Brambles Holdings Limited v Pincott 30/1994, 6 May 1994, at 6, 8; [1994] TASSC 54 at [25], [28].
Bearing that in mind, the primary judge went on to consider whether Mr Briers was employed in a continuous period of employment, however short or long, at the time of his injury. Her Honour said that he was employed effectively on a daily hire basis. "The employer had no obligation to give him work, and [Mr Briers] had no obligation to accept anything offered." Her Honour said that Mr Briers was employed under discrete contracts of hire rather than a single ongoing contract of indefinite duration, referring to HEST Australia Ltd v McInerney (1998) 71 SASR 526 at 534. Her Honour went on: "There was no evidence of any actual agreement or arrangement which might override this general concept."
As a result, her Honour concluded that s69(14) had no application, nor did s69(1)(a)(i). She then turned to s69(2), and posed the perfectly reasonable question of what the phrase "period of employment" in that subsection means. Having posed the question as to whether the term meant any period of employment involving the employer and the worker, or a continuous period of employment, her Honour concluded that the latter interpretation was correct; it meant continuous employment and continuous employment at the time of the injury (sic incapacity). On that basis, Mr Briers had no period of continuous employment which exceeded 14 or more days, and therefore his entitlement to compensation could be calculated by reference to s69(2).
The primary judge declared herself satisfied that the Tribunal was in error in relation to the approach taken to s69(14). Her Honour then discussed the question of whether an order should be made on the available material, or whether the matter should be remitted to the Tribunal for a determination under s69(2). Whether such a determination was to be made under subs(2)(a) or (b) depended on further submissions to be made about the state of the evidence. It was that matter in respect of which her Honour granted liberty to apply.
The appeal to this Court
The appellant's grounds of appeal are as follows:
"1 That the learned judge erred in law in finding that if a worker was not continuously employed at the time of his injury, then s69(14) does not allow calculation of average weekly earnings for the purposes of s69(1)(a)(iii).
2 The learned judge erred in law by holding that the words 'was employed' in s69(14)(b) was constrained by the word 'continuously'."
In the course of argument, counsel for Mr Briers again advanced the contention that the evidence before the Tribunal showed a single continuous period of employment. The essential argument, however, was one in support of the construction of the provision which was taken by the Tribunal. Mr Briers argues for a literal interpretation of s69(14)(b).
Skilled argues that what is meant by the "period of employment" in s69(2) is that which is determined as the "relevant period" under subs(14), that being the only way in which a calculation of 14 days can be made. It follows that subs(14) is to be read subject to subs(2). Skilled argues that properly construed, the notion of the "period for which he or she was employed before the commencement of a period of incapacity" means the last period of continuous employment with the same employer before the commencement of incapacity. The provision does not permit the aggregation of earlier periods, whether or not each is a continuous period.
Skilled also adopted the same position it did before the primary judge; that there may well be evidence of continuous employment during the last five weeks, and, adopting the construction for which it argues, average weekly earnings could be calculated at $219.36. Skilled contends that the primary judge was correct as to the interpretation of s69(14), but that it "was open to her Honour to determine nevertheless that there was a period of continuous employment with the same employer for less than 12 months but more than 14 days".
The employment relationship between Mr Briers and Skilled
As may be apparent, for the resolution of this appeal the Court is not required to determine the meaning of "continuously employed" as that term is used in s69 of the Act. However, before considering the construction of s69, it is desirable to say something about the nature of casual employment and what might be "continuous employment" under the Act. It may be too wide a digression, but the discussion has some significance as to the meaning of the relevant provisions, and might generally assist.
The colloquial meaning of casual employment seems to have changed over the years. It was once taken to refer to occasional and irregular work with different employers. In Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545 at 555, Dixon J said that the term was ill-defined and that it was open to treat most forms of intermittent or irregular work as casual. The colloquial meaning may now extend to people working regular hours on a specified day or days with a single employer, but with the relationship governed by specific terms. Labour hire businesses are not at all uncommon.
As the primary judge pointed out, the common law concept of casual employment is one of working under a series of separate and distinct contracts of employment, determinable without notice and entered into for a fixed period, rather than under a single ongoing contract of indefinite duration: HEST Australia Ltd v McInerney (above) per Olsson J (with whom Prior J agreed) at 534.
The essential characteristic of casual employment is that the employer can elect to offer employment for a particular day or days, and the employee has the election to work. In other words, there is no obligation on the one party to offer work, and no obligation on the other to accept it. It is informal, uncertain and irregular: see for instance Reed v Blue Line Cruises Ltd (1996) 73 IR 420 at 425, Hamzy v Tricon International Restaurants (2001) 115 FCR 78 at 89 [38], Melrose Farm Pty Ltd v Milward [2008] WASCA 175; 175 IR 455 at [103] – [106] per Le Miere J (with whom Steytler P agreed), and Williams v MacMahon Mining Services Ltd [2010] FCA 1321 at [31] – [35].
As noted by counsel for Skilled, courts in the UK have taken the view that there can be a contract of service where there is "an irreducible minimum of obligation on each side". There can be no such mutuality if the position is simply one where there is no obligation to offer work and no obligation to accept it: Carmichael v National Power [1999] 1 WLR 2042; Stevedoring and Haulage Services Ltd v Fuller [2001] EWCA CIV 651 at 6, citing Clark v Oxfordshire Health Authority [1998] IRLR 126 at [22] – [41]. In some cases there will be evidence of a relationship which may be described as a "global or overarching agreement" which links short-term hirings.
In other cases there may be evidence of a relationship but one which provides "no more than a framework or facility for a series of successive ad hoc contracts": Stevedoring and Haulage Services Ltd (above) at [10], referring to Carmichael v National Power (above). The authors of Macken's Law of Employment, 7th ed 2011 at [2.150] say that the mutuality requirement is based on the premise that a contract of employment not only requires an exchange of work for wages but also mutual promises for future performance. "It assumes the continuance of a stable relationship in which work continues to be offered and accepted."
The authors of that text go on to say that this approach has not been adopted in Australia. By reference to J A & B M Bowden & Sons Pty Ltd v Chief Commissioner of State Revenue [2001] NSWCA 125; 105 IR 66 and Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (1997) 97 ATC 5070, they observe that courts have no difficulty in finding that a contract of service can exist in relation to "casual" employees even though there is no overarching contract and the "casual" is free to refuse to work and the employer has no obligation to continue to offer work.
In Forstaff v Chief Commissioner of State Revenue [2004] NSWSC 573; 144 IR 1, McDougall J at [90] said that the irreducible minimum of mutual obligation should be expressed, not as an obligation on the one side to provide and on the other to perform work, but as an obligation on the one side to perform work (or provide service) and on the other side to pay. His Honour said that for there to be a relationship of employer and employee, it was essential that there be obligations to pay in accordance with the terms of the contract for services reasonably demanded under it, and an obligation to perform such services. "That is as much so where the service consists of standing and waiting as where it is active." See also Building Workers' Industrial Union v Odco Pty Ltd (1991) 29 FCR 104 at 114 and Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 at 342.
Generally, in determining whether a contract of service exists or not, regard must be had to the criteria laid down in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and Hollis v Vabu Pty Ltd (2001) 207 CLR 21. "The object of the exercise is to paint a picture from the accumulation of detail": Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944, cited in J A & B M Bowden & Sons Pty Ltd v Chief Commissioner of State Revenue (above) at [14].
The next matter is the question of continuous employment where there is no overarching contract, but a succession of short term contacts. As reflected in the Tribunal's finding of continuous employment for the period from November 2010 to April 2011, it has been recognised that where statutory provisions refer to, or are construed as referring to, the notion of continuous employment, the number, duration and proximity of successive contracts of service between an employer and an employee may be such as to satisfy the description. The need for continuous employment for a specified period arises in many areas of industrial relations, and often the term itself is the subject of definition. Obviously, the approach is governed by the terms of the particular statute, and it is a question of fact in each case[1].
[1] Counsel for Mr Briers referred to Flack v Kodak Ltd [1986] 1 WLR 31. That case concerned redundancy entitlements which arose after two years of continuous employment before dismissal. The facts of the "employment" involved an irregular pattern of successive contracts of service, involving dismissal and re-employment depending on the availability of work. The legislation provided that temporary cessations of work should count as periods of employment. The Court of Appeal endorsed an approach of looking at the overall circumstances of the whole period of employment in order to assess the nature of the breaks in the two year period.
Price v Guest Keen and Nettlefolds Ltd [1918] AC 760 was a case which involved the consideration of workers compensation legislation. The question was the amount of compensation payable in the case of the death of a workman. The compensation was to be a sum equal to the earnings in the employment of the same employer during the three years preceding the injury, or a specified sum, whichever was the larger. If the period of employment was less than three years, then the amount of earnings was deemed to be a multiplier of average weekly earnings during the period of actual employment with the employer.
A worker was employed under an agreement and after its termination worked from day to day for a time pending negotiations for a new agreement. The worker stopped work by way of strike action and remained out of work for a week when they resumed under a provisional agreement which was later superseded by a final agreement backdated until the start of the strike. The trial judge found that during the week of the strike there was no contract of service and there had been a break in the continuity of the employment. By majority, the House of Lords held that there was no evidence to support the finding of the judge, and that compensation should be assessed on the basis of earnings during the three year period.
At 771, Lord Atkinson said: "a continuous and unbroken succession of [daily] contracts … for three years might form the basis of an employment for three years. The rules do not require that one contract of service should cover the whole period of three years. It is the employment which is to cover that period in order to bring the case within the … rule."
Lord Wrenbury seems to have taken a slightly different approach. At 774, his Lordship said that continuity of employment does not necessarily involve the absence of intervals. "[The provision] starts with the word 'earnings' and 'average weekly earnings,' emphasising … that continuous earnings, and not subsisting contract of employment, was the dominant idea ...". At 775, he observed that if for three years there has been continuing employment under which the worker had the opportunity of continuously earning wages when and as his services were required or given, the first limb of the provision applied.
Lord Finlay LC dissented on the basis that there was evidence to support the factual finding, but at 765 – 766 said that continuous employment need not be under the same contract of service. "So long as there is no interval of time between the end of one contract of service and the beginning of another there would be continuous employment. … If there is continuous employment it is not necessary that there should be continuous work if the contract or contracts subsist throughout the three years, there may be intervals in the work." [Original emphasis.].
In the context of provisions which relate to the assessment of workers compensation payments, and which are based on "employment" for a specified period, there is authority for the proposition that the employment involves substantially consecutive or continuous employment by the same employer: Jones v Ocean Coal Co Ltd [1899] 2 QB 724 per Romer LJ at 131; Scott v Summerlee Iron Co [1931] AC 37 per Viscount Hailsham at 43; Lindsay v The King [1932] NZLR 1193 at 1194; Boyd v George Foster and Sons Ltd [1933] WCR 71 at 77; Bradley v Kandos Collieries Ltd [1935] WCR 263 ([1935] WCR 273 – Full Court of the Supreme Court of New South Wales).
As to this case, the Tribunal said, as I noted earlier, that it was common ground that Mr Briers "has been employed at all relevant times by the same employer, namely Skilled Group Ltd". The Tribunal said it was also common ground that Mr Briers commenced work in November 2010 and last worked in July 2011, a period less than 12 months. The only issue thus to be resolved was whether he was "continuously employed". The Tribunal went on to find continuous employment for the period November 2010 to April 2011. The terminology may be a little ambiguous when looked at in the current light.
The primary judge said that the Tribunal's finding of continuous employment was not, and could not be, challenged in the appeal. It is true that Skilled did not expressly argue that the finding was one made contrary to the evidence or without any evidential basis. Its position is that the finding is at best, irrelevant. At the same time, as I have shown, Skilled accepts that it was open to find continuous employment for the final five week period, but otherwise than by way of an overarching agreement. Skilled acknowledges that continuous employment may be made out where "there is a sufficient level of continuity of employment, albeit under successive contracts". It says that an "evaluative approach" is involved.
Mr Briers contended before both the Tribunal and the primary judge[2], that in the context of the employment relationship he was continuously employed for the whole of the period from November 2010 to the day of the accident. Of course, to amount to a question of law, the facts would need unequivocally to satisfy the statutory description of continuous employment: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 per Glass JA at 155 – 156; Hanlon v McKay Investments Pty Ltd (2001) 10 Tas R 247 at [6] – [15]; Attorney-General (NSW) v X (2000) 49 NSWLR 653 per Spigelman CJ at 677 [126]; R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 at [12] – [14].
[2] Rule 664(3) of the Supreme Court Rule relieves a respondent to a Full Court appeal of the obligation to file a notice of cross-appeal where error is contended, but no discharge or variation of the judgment or order is sought. That rule does not apply to appeals from statutory tribunals. However, a combination of rr693(7) and 709 enables a judge hearing such an appeal to make any order which may be just for the purpose of ensuring the determination of the merits of the real question in controversy between the parties. Rule 693(5) enables the judge to exercise that power even if a notice of cross-appeal has not been given.
In this Court, as I have noted, Mr Briers argued continuity of employment, but by way of an overarching agreement. Counsel for Mr Briers accepted that he was not on strong ground as to that, but I did not understand that he abandoned reliance on the other basis of a finding of continuity of employment. As to the overarching agreement, it was not expressly pursued before the Tribunal and there was no direct evidence which bore on the question. In fact, there was no evidence about the underlying arrangement between the parties.
However, in one of the tables put before the Tribunal, – one from which the Commissioner drafted his composite table – there are two references to "RDO". I interpret that to mean "rostered day off". Each entry is "4 days + RDO", and is made in relation to weeks 4 and 23. The existence of such an arrangement might suggest an overarching agreement of service.
An appeal from the Tribunal to a single judge is confined to determinations, orders, rulings or directions in points of law. This Court is rehearing such an appeal. Within those confines, and the confines of the grounds, the primary judge was not, and this Court is not, in a position to make findings of fact about the nature and circumstances of Mr Briers' employment, and whether he had been continuously employed in any particular period. It is in that state of affairs about the facts of the case that this Court is to determine the appeal.
Section 69(2) and (14)
I will deal with both grounds of appeal together.
Counsel for Skilled described the drafting of s69(14)(b) as "unfortunate". That might be applied to both subsections under consideration, and may well be a euphemism. The meaning of each subsection is obscure, and the relationship between the two is not readily apparent. Their construction is not assisted by where they sit in the framework of the section.
The task of statutory interpretation begins with the ordinary grammatical meaning of the text to be interpreted having regard to its context. Context includes having regard to the general purpose and policy of the provision, in particular the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 31 [4], 46 – 47 [47]. Statutory purpose resides in the statute's text and structure, and may appear by inference or by appropriate reference to extrinsic materials: Lacey v Attorney-General for Queensland (2011) 242 CLR 573 at 592 [44]. The objective is to give to the words the meaning the legislation is taken to have intended: Lee v New South Wales Crime Commission (2013) 87 ALJR 1082 per French CJ at 1103 [45].
It was by Act No 42 of 2007 that s69(2) was amended to its present form, and subs(14) was added. Section 69(2) previously defined "normal weekly earnings" in relation to a worker who was incapacitated for work, as the "average weekly earnings of the worker over the period of twelve months ending at the commencement of the period of incapacity". Other amendments to the Act were made at the same time. They included amendments to s70 which is a provision which relates to the "computation of normal weekly earnings".
Both before and after the amendments of 2007, s70(2)(a) provided that in computing normal weekly earnings, regard is to be had to the principle that the worker should receive no more than the worker would have received if the worker had continued in the worker's usual employment.
Before the amendments of 2007, s70(2)(b) provided for the situation where by reason of the shortness of time during which the worker had been in the employment of his employer, or by reason of the terms of the employment, it was impracticable to compute the normal weekly earnings of the worker under that employer "during any relevant period under that employer". In that case, the normal weekly earnings were to be calculated by reference to those of a person in the same grade employed at the same work by the same employer, or if there was no such person, a person in the same grade employed in the same class of employment in the same district.
Section 70(2)(c) provided that in the case of concurrent contracts of service with two or more employers, or employment of a casual nature, the worker's normal weekly earnings were to be computed as if the earnings under all contracts or in the employment of several employers were earnings in the employment of the employer for whom he was working at the date he suffered the injury.
Those two provisions were repealed in 2007. The Parliamentary clause notes to the 2007 Amendment Bill describe the provisions as having been incorporated in the amendment to s69(9). Before amendment, s69(9) allowed the Tribunal in a reference under s69(8), to have regard to weekly earnings of other workers on the same grade or classification as the worker, and employed by the worker in similar work. That provision was effectively linked to s70(2)(b) as it then stood, and which, of course, was also amended. Subsections (8) and (9) of s69 now provide as follows:
"(8) If of the opinion that an amount of weekly payments calculated in accordance with this section is insufficient or excessive, a worker, an employer or a licensed insurer of the employer may refer the matter to the Tribunal.
(9) The Tribunal, in relation to a matter referred to it under subsection (8), is to determine the amount of weekly payments which appears to it to be reasonable and appropriate in the circumstances, having regard to —
(a)the current weekly earnings of another worker of the same grade or classification as the worker and employed by the same employer in similar work to the worker; and
(b)the earnings that the worker might reasonably have earned during the period of incapacity; and
(c)any other relevant matter."
The relevant parts of s70 now read:
"(2) The normal weekly earnings of a worker shall be determined in accordance with the following provisions:
…
(b)where, at the commencement of the period of incapacity, the worker has contracts of service with 2 or more employers, his or her normal weekly earnings are to be computed as the sum of the average weekly earnings in each employment as if his or her earnings under both or all of those contracts were earnings in the employment of the employer for whom he or she was working at the commencement of the period of incapacity;
(c)[omitted – no 42/2007]
(d)where one of the contracts referred to in paragraph (b) is a full-time contract of service, the normal weekly earnings of the worker shall be computed by reference only to the full-time contract of service."
The former s69(2) and s70(2)(b) and (c) were carried over in almost identical terms from the Workers' Compensation Act 1927 as it stood after amendments in 1972: see Schedule 1, cl 3(1A) and cl 4(2)(b) and (c). Those amendments introduced the concept of "full pay" compensation for incapacity: Brambles Holdings Limited v Pincott (above) at 8; (TASSC 54 at [30]).
The primary judge set out the second reading speech to the Amendment Bill in the Legislative Council. The relevant part is as follows:
"This bill amends the weekly payment provisions to clarify the way in which weekly payments are calculated. The guiding principle is that the initial rate of weekly compensation should be no more or less than the worker would have received if he or she had continued to work. However, the changing nature of employment, particularly the rapid expansion of casual, fixed-term and part-time employment, has highlighted some shortcomings with the current provisions in the act.
The decision of Justice Slicer in Thirroul Investments v Foley highlighted the need for a fairer method of calculating the rate of payment for casual and short-term workers. Currently a worker's rate of weekly payment is based on the average of their earnings over a period of 12 months or their ordinary time rate of pay, whichever is the greater. In the Thirroul case, His Honour held that there was no ordinary time rate of pay applicable to a casual employee in the industry in which the worker was employed. As a result, the worker's few short weeks of earnings were averaged over 12 months to arrive at a weekly rate of compensation. This meant the worker suffered a substantial reduction in the rate of weekly compensation. The decision of Thirroul has been applied generally to all cases involving casual workers, often resulting in unfair outcomes. The changes proposed in the bill redefine normal weekly earning so that a worker's earning are averaged over the period they have been employed by the employer they are with at the time of incapacity. If a worker has been with the same employer for more than 12 months, then earnings are averaged over that period. If the period of employment is less than 12 months, then earnings are averaged over the period employed. Alternative approaches apply to workers who have been employed for less than two weeks at the time of incapacity. …
The proposed methodology is more consistent with the general principle that during a period of incapacity a worker should not receive payments greater than the amount that they would have received if they had continued to work in their usual employment. Basing weekly payments on current earnings also reduces the potential for delay and disputation, as the information should be readily available." [My emphasis.]
As to the "guiding principle" referred to in the second sentence of that part, that may be a broad aim, and one generally consistent with basic principles of compensation, but it is not to be found in the terms of the Act. Section 70(2)(a) provides that in computing normal weekly earnings, regard is to be had to the principle that, subject to this Act, a worker should receive no more than the worker would have received if the worker had continued in the worker's usual employment. By those words, Parliament seems to have countenanced the provisions working in such a way that a worker may receive less than would have been received if the worker had continued in his or her usual employment, but that must be put in the perspective of s69(8) which I have set out above.
The second reading speech in the House of Assembly was less informative. It ended just after the start of the first set of words which I have emphasised, saying merely that the changes in the bill "will enable a fairer weekly payment to be calculated for these types of cases". Both the clause notes and the "fact sheet" for Members state that the amendments to s69 "provide a fairer method of calculating the rate of weekly compensation, especially for workers who have a short employment history and where the award does not include an 'ordinary time rate of pay'." The case of Thirroul Investments is again referred to as highlighting difficulties for these workers. The fact sheet explains that the amendments which redefine "normal weekly earnings" allow earnings to be averaged over periods of employment of less than 12 months.
In Thirroul Investments Pty Ltd v Foley [2003] TASSC 89, Slicer J was dealing with a casual worker employed under an award in the hospitality industry. It seems that she had only worked for three weeks with hours ranging from one day in the first week to 49.25 hours in the second week. The Tribunal assessed weekly payments pursuant to s69(1)(a)(ii) on the basis of an ordinary time rate of pay for the hours worked in the second week. That was because the second week was seen as the most appropriate illustration of the weekly hours the worker was working in the period immediately before her incapacity; the hours generally conformed to the shifts she had agreed to work when her employment began.
The resultant figure exceeded the award rate applicable to a permanent full-time employee. Slicer J held that there was no "ordinary time rate" which fixed the calculation, as she was entitled to varying rates depending on the days worked. His Honour set aside the determination and ordered that weekly payments be reduced to a figure which was calculated on the earnings for the three weeks during which the worker was employed. (A divisor of 3 seems to have been used for the calculation, rather than a divisor of 52 as was held to be the proper approach under the then s69(2), when the period of employment was for less than 12 months: See Johns Perry Haywood v Greaves [1991] Tas R 20.)
Counsel for Skilled submitted that, in reality, the underlying problem for casual and short-term workers which was sought to be addressed most likely arose from the decision in CIG (Pyrethrum) Ltd v Hanson (1995) 5 Tas R 138. In that case, the worker became totally incapacitated after three days of work, during which she was paid a piece rate of $10 per carton of plant bundles. Wright J held that as there was no temporal element in the worker's pay structure, there was no "ordinary time rate of pay" for the purposes of s69(1)(a)(ii).
The Tribunal had assessed weekly payments on the basis of the average earnings of all other workers employed in the same position for the week in which the worker had been employed. Wright J held that also to have been an incorrect approach, in that none of the other workers had been employed for a period of 12 months, as required by s70(2)(b). The Tribunal's determination was set aside, and the matter returned to the Tribunal for an alternative assessment.
In all of that, I am not sure that much can be derived from the mischief as identified in the second reading speeches. The cases illustrate the general difficulties which arose under the old provisions in relation to casual and short-term workers, but something might be gained from the stated way in which s69(14) was intended to operate as explained in the second reading speech in the Legislative Council and in the fact sheet.
Mr Briers submits that the legislation is remedial and as the provision is ambiguous, it should be construed liberally. It is argued that a literal interpretation should be favoured as it is more favourable to a worker, and that such an interpretation better promotes the purpose of the provision. Although it is argued that subs(14)(b) should be given its literal meaning, Mr Green accepts that there is a qualification to that, as I will later explain.
Skilled says that the starting point for determining the issue is s69(2), and the meaning of "the period of employment". It must be said that as it appears in s69(2) the phrase is without meaning. It is not readily apparent what the period is, or to what time or employer it relates. Skilled submits that subs(2) has to be read in conjunction with subs(14), and accordingly, the "period of employment" in subs(2) can only mean the period for which the worker was employed before the commencement of the period of incapacity, but a period which is not more than 14 days. That means that s69(14) operates where that period is at least 14 days, and that par(b) should be read as though the words "but for more than 14 days" appear after "12 months". Mr Briers does not disagree, and I think it must be correct.
The next question is the meaning in s69(14)(b) of the words "the period for which he or she was employed". If the phrase were read literally, it would mean that once there is established a period of continuous employment of less than 12 months with an employer, "the period for which he or she was employed" would mean at least a period of any length, and possibly several periods, whenever it or they occurred and with one or several employers. In the immediate context of the words, I do not think that it is reasonable to construe the words in that way.
Moreover, the fact that s69(2) is dependent on s69(14) for its meaning, conversely assists in establishing what subs(14)(b) means. Counsel for Mr Briers concedes that there is some limitation on the literal meaning to these words beyond the qualification involving s69(2) which I have just mentioned. The concession is that "the period for which he or she was employed" referred to in subs(14)(b) is confined to a period of less than 12 months (but more than 14 days). Once it is accepted that there is a limitation on the literal meaning of the phrase, it is far easier to attribute to it the meaning argued for by Skilled.
As noted, Skilled argues that the period referred to in par(b) is the last period of continuous employment with the same employer before the commencement of incapacity. That meaning requires the insertion of the words "continuously" and "immediately", respectively before and after the word "employed" in par(b). It is suggested that it is only in that way that all of the relevant provisions of s69 can be given a cohesive operation. The omission of the two words is not significant because the syntax suggests that the words be read in that way. In any event, Skilled says as to the omission of "immediately", that there is nevertheless "a strong connotation of temporal proximity or immediacy in the use of the words the period … before the commencement of incapacity". [Original emphasis.] I think there is force in these submissions.
Section 69(14) is in not dissimilar terms to provisions which have existed in workers' compensation legislation in other jurisdictions over many years. Although there are variations in the language used in a range of such provisions, the essential aspects of those provisions are the same. Average weekly earnings are equal to, or based on, an amount earned by a worker during the 12 months before the injury if employed for that period by the same employer, and if not, then for any shorter period during which he has been employed by the same employer. See for example the Workmen's Compensation Act 1897 (UK), Schedule 1, cl 1, the Workers Compensation Act 1922 (NZ), s6(1), the Workers Compensation Act 1956 (NZ), s15(6), the Workers Compensation Act 1926 (NSW), s9 and the Workers Compensation Act 1958 (Vic), s9, cl 4.
It has been established that the reference to "employment" in such provisions is to continuous employment, and that the period is that which is proximate to the injury. (It is true that these provisions refer to "injury" rather than "incapacity" but I cannot see that it alters anything relevant to the construction issue.) Of course, the aspect of continuity is now covered by the express language of s69(14). As to the need for any lesser period to be the last period with the same employer, and the inability of the worker to aggregate periods of employment within the 12 month period, in Jones v Ocean Coal Co Ltd (above) Romer LJ said at 130 – 131:
"Coming to the second part of the clause, which deals with any less period than 12 months during which the worker has been in the employment of the same employer, I think that it means a period during which the workman has been in a substantially consecutive or continuous employment of the same employer up to the date of the accident. It may be worthy of notice that the word 'period' is used in the singular, not in the plural. I do not think that it was intended by the second part of the clause that, in considering the lesser period than 12 months, we were to look back and add together a series of periods of employment, although periods may intervene in which the workman had nothing to do with the employer; … That part of the clause I think means I think, if the workman has been in substantially the same consecutive employment for the 12 months preceding the accident, the calculation must be made upon the period of less than 12 months during which he has been in substantially the same consecutive employment."
These views have been expressed or endorsed in later cases dealing with the same or similar provisions: see for example, Appleby v Horseley Co [1899] 2 QB 521, Greenwood v Joseph Nall & Co Ltd [1917] AC 1, Lindsay v The King (above) at 1195 and Boyd v George Foster and Sons Ltd [1933] WCR 71 (above). Because of the similarity in wording and apparent concept, the established approach to such provisions provides some assistance in the construction of s69(14).
It might be thought that the use of the word "period" in the singular is of no great moment given s24(d) of the Acts Interpretation Act 1931. That provision says that in any Act, words in the singular shall include the plural and words in the plural shall include the singular. The section is not by its own terms constrained by the words "unless the contrary intention appears". However, s4 of the Acts Interpretation Act says that the provisions of the Act are to be applied, except insofar as the interpretation which any provision of the Act would give to anything contained in an Act or regulation is inconsistent with the context thereof. Accordingly, the exercise remains one of construing the text in its context.
The approach to an "average weekly earnings" provision of the kind presently under discussion was explained by Dixon J in Doyle v Sydney Steel Co Ltd (above) at 552 in the following way (omitting references):
"The average weekly earnings upon which worker's compensation for … incapacity is computed are those of the previous twelve months if the worker has been so long employed by the employer but if not, then for any less period during which he has been in the employment of the same employer. … The purpose is to obtain the rate of remuneration which at the time of the injury the worker received in that employment. … [i]t is necessary to take the period, not exceeding twelve months, during which a nexus continued between the worker and the same employer. Such a nexus is consistent with intervals of idleness through lack of work, or the worker's own absence … … For the object is to find the average remuneration obtained by the worker at the time when he suffered the injury and so incurred the incapacity to go on earning it. Accordingly, the weekly average is calculated by dividing the total remuneration received by the worker during the period, not by the number of weeks contained in the period, but by the number of weeks in which the worker was at work." [My emphasis.]
It follows that the focus is on the period of time closest to the onset of incapacity. This accords with a submission by Skilled that it is consistent with the general principle expressed in s70(2)(a), that the determination of normal weekly earnings should be made in respect of the period of employment nearest to the date of commencement of incapacity; this most accurately reflects what the worker would have earned. Section 69(14) does not specify, and it does not matter, that the employment is with an employer who is not the employer liable to pay compensation. It is the continuity of employment with the same employer which is important. In all of this, the scope of what may be involved in the notion of "continuous employment" should be borne in mind.
A reference to casual employment is no longer to be found in s70 of the Act. Historically, both in this State and elsewhere, the concept was specifically catered for in assessment provisions. As I earlier noted, in the Workers' Compensation Act 1925 (Tas) this was done in Schedule 1, cl 4(2)(b), and then in almost identical terms in the now omitted s70(2)(c) of the Act.
Application of the now omitted s70(2)(b) might have arisen in a case of a casual employee because of "the shortness of time during which the worker has been in the employment of his employer". It should be noted, however, that at least the 1906 English progenitor of this provision contained specific reference to "the casual nature of the employment", but that reference was not carried forward in legislation in parts of Australia: see the discussion by Dixon J in Doyle (above) at 553 – 554. It is far more likely that difficulties created by casual employment would have been catered for by the application of the omitted s70(2)(c) of the Act.
By examining the way in which the relevant provisions of ss69 and 70 were amended in 2007, assisted by the second reading speeches and other extrinsic material, it might appear that Parliament contemplated that difficulties in the assessment of the normal weekly earnings of a person whose employment was of a casual nature, would be primarily dealt with by way of s69(2) or s69(8) and (9). If, for a casual worker, there was a period of continuous employment of less than 12 months but greater than 14 days, the application of s69(14), as construed by the primary judge, may well achieve an insufficient or excessive amount, but recourse to s69(8) is open.
This accords with the essential aim of modern workers' compensation legislation which is to compensate the worker for the loss of the capacity to earn in the future. To base compensation simply on what a worker was actually earning may produce injustice if the worker was not exercising all of his or her working capacity at the time of incapacity; that explains the alternative "ordinary time rate of pay" basis of calculating weekly payments provided for in s69(1)(a)(ii): Scott v Sun Alliance Australia Ltd (above) at 11 – 12.
The legislation may, in general, properly be characterised as beneficial and thus requiring liberal interpretation, but any liberal interpretation must be restrained within the confines of the language employed and what is fairly open on the words used: Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638. The construction of s69(14)(b) adopted by the primary judge may cause unjust results, but it may not. It may result in an unfavourable outcome for a worker, but not invariably so. It depends on the fact of the case.
The various ways of assessing weekly compensation adopted over time in a range of jurisdictions, and the plethora of litigation over many years about those various ways, attests to the difficulties which have been encountered in finding universally workable formulae. As alluded to in the clause notes to the 2007 amendment Act, difficulties which the application of either s69(2) or (14) may create for casual workers have been catered for by the amendments resulting in the present form of s69(8) and (9)
For all of those reasons, I would hold that subs(14)(b) applies when there is continuous employment, and that the relevant period is a period of continuous employment immediately before the commencement of incapacity, and one of more than 14 days. Reading "injury" for "incapacity" and ignoring the incorrect reference, the primary judge was correct to say that if a worker was not continuously employed at the time of the commencement of incapacity, then s69(14) does not allow calculation of average weekly earnings for the purpose of s69(1)(a)(i).
Outcome
It follows that both grounds of the appeal should fail, and that the appeal must be dismissed. As to consequential orders, Skilled contends that although the primary judge was correct in rejecting the Tribunal's construction, her Honour was wrong in fact in saying that Mr Briers was not continuously employed at the time of the injury. If the contention is accepted, Skilled submits that this Court can fix normal weekly earnings at $219.36 on the basis of five weeks' continuous employment before the period of incapacity. Were the Court to reject the contention, Skilled says that the matter should be remitted to the Tribunal for determination of Mr Briers' normal weekly earnings in accordance with s69(2)(a) or (b).
I see difficulties with this approach, and with the Court fixing Mr Briers' normal weekly earnings as suggested. I have already referred to the nature of the appeal to the primary judge, and the limitations which follow. I am conscious that Mr Briers argues that there was continuous employment for the whole of the period from November 2010 until the date of his injury, subsumed within which, of course, is the period of five weeks at the end. But Mr Briers has not agreed to an assessment of his normal weekly earnings on the suggested basis, nor on the basis that s69(2) be disregarded. As I see it, a particular problem is that there was no finding by the Tribunal in relation to the question of continuous employment after April 2011. Indeed, the Tribunal said that it was unnecessary to consider whether Mr Briers was continuously employed at any time after his brush cutting work ended (April 2011) and before his injury.
As things stand at the moment, and as the primary judge indicated, the assessment would have to proceed, as the primary judge indicated, under s69(2). Counsel for Skilled accepts that there may be a need for further evidence to enable a determination to be made as to which paragraph of subs(2) applies, and for the assessment under that provision.
The appeal should be dismissed. The orders of the primary judge allowing the appeal from the Tribunal and quashing its determination should stand. In all of the circumstances, I think the appropriate further order is simply to remit the reference to the Tribunal to assess weekly payments under s69 in accordance with these reasons. It is a matter for Mr Briers, of course, but it may be that the reference to the Tribunal is enlarged to include a reference under s69(8), and hence a determination under s69(9). That course was foreshadowed at the hearing before the Tribunal but not pursued at the time.
File No 894/2013
JOHN DESMOND BRIERS v SKILLED GROUP LIMITED
REASONS FOR JUDGMENT FULL COURT
WOOD J
26 August 2014
I have had the advantage of reading the reasons for judgment of Porter J. I agree with those reasons and with the orders proposed by his Honour.
File No 894/2013
JOHN DESMOND BRIERS v SKILLED GROUP LIMITED
REASONS FOR JUDGMENT FULL COURT
PEARCE J
26 August 2014
I agree with the reasons for judgment of Porter J and with the orders his Honour has proposed.
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