Catlow v Accident Compensation Commission

[1988] HCATrans 243

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M64 of 1988

B e t w e e n -

GORDON CATLOW

Applicant

and

ACCIDENT COMPENSATION COMMISSION

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J

GAUDRON J

Catlow

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 OCTOBER 1988, AT 12.40 PM

Copyright in the High Court of Australia

MlTI0/1/SH 1 14/10/88

MR M.E.J. BLACK, QC:,-May it please the Court, I appear

with my learned friend, MR C.M. MAXWELL, for

the applicant. (instructed by Maurice Blackburn & Co)

MR J.E. PHILLIPS, ~C: If the Court pleases, I appear

with my earned friend, MR J.A. RIORDAN, for

_-:. - the respondent. (instructed by 6-.-N. _Edney)

MR BLACK: Hight I hand to the Court copies of the relevant

parts of the ACCIDENT COMPENSATION ACT, 1985,

of Victoria which is the legislation in issue

in this matter?

This case, if the Court pleases, involves the interpretation of what really is one of the

central provisions of the ACCIDENT COMPENSATION

ACT, 1985, which is an Act that set up an

entirely new scheme of compensation for injured

workers in this State.

Under the Act, a totally incapacitated worker

is entitled to weekly payments of an amount equal

to 80 per cent of what is termed his free injury

average weekly earnings or $400, whichever is the

less and that is section 93(4) of the Act. That

is the only form of compensation, for loss of

income,now available to him in this State where a

work injury is involved;	connnon law rights in that
regard having been cut out.

The Act provides for a means whereby the

pre-injury average weekly earnings of the worker

are to be calculated and that is section 95,

and that is the section around which the argument

has turned in this case as it has progressed from

the Accident Compensation Tribunal to the Full

Court of the Supreme Court of Victoria. I will

come to the central question directly but what it

really involves in this case and in other cases

is what allowance, if any, is made for overtime

in the calculation of the pre-injury average weekly

directly to section 95(1) of the Act and identify	earnings of the worker and might I take the Court	the essential issue or problem that arises in this
case? I should indicate that the Act has been
amended in respects that no doubt my learned friend
will contend are relevant but which we will contend
do not cteprive the point of its general importance.

MASON CJ:  You will make that point good as you present your

argument?

MR BLACK:  Yes, Your Honour. The amendments - if Your Honours

have the amended copy of the Act which can be

identified simply because it has notations at the

side of the section, Your Honours will find that

the amendments are clearly identified. They

MlTl0/2/SH	2	14/10/88
Catlow

are insertions. In 95(1)(a) there is an amendment

which is not an insertion but that was simply the

putting in of the words "continuously" but,

otherwise, 95(1) remains the same.

Now, the point in issue, in our submission,

is this: if one looks at 95(1), it provides for

the definition of:

The worker's pre-injury average weekly

earnings -

as meaning the average of various things and then

it concludes:

Calculated at the worker's ordinary time rate of pay for the worker's normal number of hours per week.

The point of difference in this case is as follows: the Accident Compensation Tribunal took the view,

correctly, in our submission, that what is involved

there is two concepts. ¥ou do the calculation by

identifying an ordinary time rate of pay and by

identifying what is the normal number of hours per

week for the worker and, to assist you in doing that,

you then have regard to a series of rather complicated

- if a normal number of hours and so forth

deeming provisions which is section 95(3) of the various

is not fixed.

The Full Court took the view that the expression

"calculated at the worker's ordinary time rate of

pay for the worker's normal number of hours per

week" was one composite expression. It was a

concept which could exist as a whole so that in

cases in which it did exist one did not have to
look at the various deeming provisions to work

out how to do the calculation.

Now, the effect is very important and was

very important in this case because Mr Catlow and, no doubt, there would be others like him, although

not as extreme as his case, spent a third of his

working time doing overtime and, on the Full Court
view of the matter, because it was able to identify
something of a composite concept, an ordinary time

rate of pay for the worker's normal number of hours per week, Mr Catlow's overtime was simply not taken

into account in calculating what he should receive

by way of compensation whereas if the Accident

Compensation Tribunal approach were correct, as we respectfully contend it is, one would have,

and the Tribunal did, look first to see if there

is an ordinary time rate of pay for Mr Catlow's

work and that involved looking at 95(3)(b) to see

MlTl0/3/SH	3	14/10/88
Catlow

if one was fixed and the Tribunal held that,

indeed, one was fixed and then it involved

looking at the question what was the worker's

normal number of hours per week and, if that

was not fixed, then subsection 95(3)(c) told

---=--- you how to fix it and, basically, it involved

doing an averaging which, in Mr Catlow's case,
took into account his overtime.

So, it is not a pretty piece of legislation,

if I can so call it. It is fraught with

ambiguities as the Full Court indeed recognized

but it can work. If it works che way the

Accident Compensation Tribunal says it works and for which we contend, persons in Mr Catlow's

position are better off than if it works in

the way in which the Full Court contends it

works. Now, we do not say that it cannot work

in the way the Full Court contends it works.

We say that, properly construed, it works in

the way for which we contend and I will seek

to make that argument good because, obviously,

the two essential limbs have to be addressed,

whether it is a matter of general importance

and that will, we concede, depend not only on

the nature of the legis.lation and its social

effect and so forth but on amending legislation

and, secondly, we will seek to make out that

the Full Court was in error or, at least, -

I am sorry Your Honour.

MASON CJ: There is no need to apologize but it may be

convenient. now to adjourn, Mr Black,and we

will resume at 2.15 pm.

MR BLACK:  May it please the Court.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.26 PM: 

MASON CJ: Yes, Mr Black.

MR BLACK:	May it please the Court. Might I now identify
the central differences in approach which are

quite fundamental and which will remain a
problem, in our submission, however this Act

is amended so long as it maintains something

like its present form. The essential difference

is between the way the Accident Compensation

Tribunal considered the problem should be

approached and the way the Full Court considered it

should be approached.

MlTl0/4/SH	4	14/10/88
Catlow

Now, the Accident Compensation Tribunal,

looking at 95(1) or the concluding words of the

section, said in substance that there were really

always two questions to be asked. One looked at

the expression "the worker's ordinary time rate of pay" and then went to the deeming provisions of subsection (3) and in particular subsection (3)(b),

to see whether that was fixed for the worker's work

under the terms of the worker's employment. That

was question 1. Question 2 was a similar question

in relation to the worker's normal number of hours

per week. One looked to see under the deeming

provisions, section 95(3)(c), to see if they were

fixed and, depending upon the answers to those

questions, one produced two figures, either
deemed figures if the deeming provisions applied

or actual figures if they did not and one produced

a calculation.

The essential difference between that approach

and the approach of the Full Court is that one

might solve the problem by only answering one

question, that is to say, was there such a thing as'the worker's ordinary time rate of pay for the worker's normal number of hours per wee~'with

quotes around the whole expression. Only if the

answer to that question was no, did one then go

to the deeming provisions so that one question

might solve the whole problem. Because of the

difference in approach, different dollar solutions

may occur and, in this case, did occur according

to the type of situation being considered and

whereas here overtime was involved the Full

Court's decision on the facts of this case, at

least, excluded consideration of overtime because

it excluded consideration of the actual number of

hours per week worked by the worker.

BRENNAN J:  Mr Black, if there is an award, for example, which

prescribes a 38-hour week at a weekly rate of $250,

then what is, in those circumstances, the worker's

ordinary time rate of pay for the worker's normal

number of hours per week if he ordinarily works

40 hours?

MR BLACK: Well, according to the Full Court, it would just

be the basic 38-hour rate. According to the

Accident Compensation Tribunal, one would take the

ordinary time rate of pay -a familiar enough

industrial concept - and then one would find, however,

that the normal number of hours per week were not,

indeed, fixed. In this case, neither would they be fixed under the award because the award would

not, in our submission, fix the normal number

of hours. It would provide a base beyond which

overtime would be payable. So that, in those

circumstances, according to the Accident Compensation

MlTl0/5/SH	5	14/10/88
Catlow

Tribunal, what you would then do is to look at the

homely concept of the normal number of hours per

week, a concept readily understood by people - one

would say that it is 40 - and then would do a

multiplication and that would take into account

overtime. On the Full Court's analysis, as we

-----=--- would understand it,with respect, the worker,

in those circumstances, would not have his overtime

taken into account.

Now, overtime may or may not, and it is an

important issue and we say -indeed, a very important

issue because that is all - this form of compensation

is all you get if you are injured at work. You cannot sue at common law and a few dollars a week - one tosses it off like that but a few dollars a week can be a

lot of money for people so that these are important

questions.

Underlying the whole thing, however one looks

at it, is this question of how one approaches the

basic calculation and that is something that one

would venture to suggest has to be done thousands

of times a week in the Accident Compensation Tribunal

of this State.
Now, in our submission, the Full Court approached the matter incorrectly or, at the very

least, arguably incorrectly and we have about five

separate, short arguments in support of that

contention. The first we might t&rIIl "the face value

argument"which we would concede s very much an

argument of impression but if one looks at the

expression "calculated at the worker's" -

calculated - we would underline that word -

"ordinary time rate of pay for the worker's normal
number of hours per week", we say that,in the
context of the calculation of average weekly
earnings, it looks like two concepts, two

expressions both of which have meaning in the

community - "ordinary time rate of pay" and "normal

number of hours per week" are combined and it is

our submission that that should lead to the

conclusion that two separate concepts are involved.

Next,we would say that if one looks at the

deeming provisions,which are obviously very

important, of section 95(3) of the Act, they

treat the concepts as separate concepts. It is

not as if the deeming provisions pick up the

composite concept and say, for example, "if there

is no ordinary time rate of pay for the worker's

normal number of hours per week then ..... ",

rather, the scheme of the Act is to look at the

different concepts and treat them differently.

The learned judge who delivered the judgment of

MlTl0/6/SH	6	14/10/88
Catlow

the Full Court, Mr Justice Tadgell, expressed
the opinion that the deeming provisions did not

lead to that result but we say, with great

respect, that His Honour did not really say

why that was so. The third point is that the

· __ concept of an ordinary time rate of pay is

-- clear enough in itself and whether a person

has as his or her normal number of hours per
week, 15, as a casual employee or 38 as a full

time employee, nevertheless, one can readily

identify what the ordinary time rate of pay is.

Therefore, we say, if it is a composite concept,

why is it necessary to add "normal number of

hours per week" for the ordinary time rate of

pay. Rather,one would think, in our submission,
it is referring, therefore, to two concepts, each
of which are identifiable. If it were referring

to only one, then the addition of the expression

"normal number of hours per week" is, in our

submission, unnecessary and further, if that

were the way the legislature were intending to

go, we would ask rhetorically, why did it not

say "ordinary time rate of pay for the worker's

ordinary hours" which would make it clear but

it is not the expression used.

The fourth argument involves looking into

the labyrinth of this legislation and I will do

so very briefly. Section 95(3)(d)(vi) on page 79

of the reprint, towards the top of the page,
part of the deeming provisions would appear to
operate in such a way that, in the circumstances
to which it applies, there is, indeed, the type
of calculation, multiplication of two concepts,
carried out which, according to our contention,

the Act as a whole reauires. The final argument

is that if one does get- to the deeming provisions

and on the Full Court's analysis eventually one

might, if there is no identifiable single concept,

then one, nevertheless, has to go through a

multiplication process because that is what

the deeming provisions apply if they operate.

On the Full Court's analysis, one would not

necessarily get to that and would not if there

is the single concept but if absent the single

concept, one again has to do the	multiplications.
There is another matter of construction.	I refer

to it very briefly because Mr Justice Tadgell

placed some emphasis upon it and we would

respectfully submit wrongly. In section 94 of

the Act, which is concerned with calculating

the amount to be payable to partial incapacitated

workers, there appears a subsection, subsection (10)

under which the current weekly earnings for a	'
particular week are to be calculated and the

MlTl0/7/SH	7	14/10/88
Catlow

expressions used in that subsection are similar
expressions - indeed, in some respects, the same -

as those used in section 95. The learned judges

of the Full Court fastened upon the expression

"no such ordinary time rate" as indicating that

the ordinary time rate of pay, in fact, extended

to the broader concept. On the contrary, we would

argue that the language of section 94(10) expressly

requires a calculation. It is a calculation in
respect of only one week and so, therefore, we

say - and therefore, no averaging is involved -

that that rather supports our contention that

there is a calculation of two things, that is to

say, an ordinary time rate of pay times a normal

number of hours per week and we say that

subsection (11} supports that argument.

Now, in addition to the plain statutory

construction arguments, there are legitimate

policy arguments in support of our contention

and our submission. The first is that the object

of this Act is expressed to be the payment of

just compensation. Admittedly, one is dealing

with words that have value connotations but,

in our submission, compensation for actual

loss would be universally regarded as the basis

of what might be termed a fair thing. Actual

loss can arise from the loss of overtime which
a substantial percentage of the community -

20 per cent on the material in Victoria - derive

and rely upon. So the construction that tended

to deprive the 'wOrk-force of compensation calculated

on the basis - - -

MASON CJ:  Well, you do not need to labour that point. I

think you have got the message through.

MR BLACK: If Your Honour pleases, and the subsidiary point I

equally will not elaborate and that is the ordinary

canon of construction with the view more favourable

to the worker, in case of true ambiguity, should

be preferred.

The Full Court thought that there was

ambiguity and that appears at page 44 point 5

of the transcript. The other point we would

make is that there are anomalies in the Full Court's

view in that a worker who had derived his income

from ordinary hours at an ordinary time rate of

pay might get more compensation than the very

same worker who laboured for longer hours to get
the same rate of pay but it has to be conceded
there are anomalies either way and, on the tally

of anomalies, maybe we would be ahead but the

legislation is not easy.

Now, in our submission, the reasoning of the Full Court, al though capable of producing - I would

MlTl0/8/SH	8	14/10/88
Catlow

say so with respect obviously - the result, the

scheme that the Full Court said was the way it

worked, in our submission, is not the reasoning

to be preferred for the reasons given. The

Full Court, in our submission, essentially at the beginning of its judgment, made almost a

leap in deciding that the two expressions in

section 95 embodied, in truth, a central

concept and, in our submission, for the reasons

given, the Full Court's view is not correct.

In one instance, the Full Court said that it was really not logical to take into account figures that involved overtime but in respect

of which there was no actual compensation for

overtime at the overtime rate but we would

answer that by saying that overtime is not just

for the extra time worked, it is also for the

inconvenience and disturbance of working the

extra overtime. So, it would not be an illogical

scheme of compensation to say, "Well, you do not

get all your overtime taken into account.	You
only get a particular percentage of it".

Can I go now to the question of public

importance?

MASON CJ: Yes, and the effect of the amendment on that.

MR BLACK:  Yes, Your Honour.

BRENNAN J: Before you just get to that, do you have anything

to say about the question of weighted average?

MR BLACK:  No, we do not argue with that.

BRENNAN J: Right.

MR BLACK:  There is one matter which is peculiar to this case

and, perhaps, I can just come to it now because it

raises no lasting question of public importance

but it is very important to Mr Catlow. It is

a very short argument which, if the Court granted

special leave, would not detain it for very long

and that is what do you do if, in the yearly period

that you are meant to take into account, the person

is, in fact, off work for whatever reason, for part

of that period, is the denominator 52 or is the

denominator such actual number of weeks as the

person might have worked or was on sick leave.

The Act now fixes that and says that you have

the lower denominator but it did not in the time

of Mr Catlow's case and that would be a small

argument which, if leave were granted, we would

wish to raise.

The public importance points are these: first,

this is a central section in important social

MlTl0/9/SH	9	14/10/88
Catlow

legislation. It is particularly important where

there is no connnon law remedy. Whatever amendments

are, have been made or will be made, section 95(1)

remains central and the approach to be taken to

that section will be a matter of daily application.

The results will differ according to which approach

is taken, the Accident Compensation Tribunal approach

or the approach which the Full Court took. Now,

that is a matter that thousands of cases will have

to turn on and it does not matter, in our submission,

what you do with the deeming provisions, the question

in th~s case ,is do you - or maybe - do you even get

to the deeming provisions?

So, the point is central, unaffected by the

amendments in that way. Now, as far as Mr Catlow's

particular position is concerned, and the position

of persons in receipt of overtime, the point is,

it must be conceded, narrower by reason of the amendments and it is narrower particularly by

reason of the amendment to section 95(3)(ba) which

provides that:

If the normal number of work hours per

week is fixed in any industrial award

applicable to a worker, the worker's

normal number of hours per week in that

work shall be deemed to be the number so

fixed -

so that if one gets to the deeming provisions and

(ba) applies, and one is under an award within

the description of such a provision in subsection (ba),
the overtime argument does not exist any more. The

award deals with it for you. -But, in answer to that,

we rely on some factual material. The material

before the Court shows and properly shows, in

our submission,by reference to published

statistics, that in this State some 15 per cent

of workers are award-free in any event.	A large
number of workers do work overtime. The exhibit

shows that some 20 per cent do, an average of over

seven hours a week and, in any event, it is unusual

on the evidence in this application - I am sorry,

I overstate that - it is not usual,on the evidence, for industrial awards to fix a normal number of hours per week in the way in which we would say

that expression is to be interpreted and the

metals award is exhibited and what it does is to

set an ordinary time rate of pay. It sets overtime

for hours in excess of the ordinary time and also

provides that workers may be required to work

reasonable overtime. So that, in our submission

- yes, the phrase, I am reminded, in the metal

industry award is "ordinary hours" and the normal

number of hours in the way in which we say it

should be construed in this legislation is not

MlTl0/10/SH	10	14/10/88
Catlow

a concept with which industrial awards are

particularly familiar. So that even if the

only argument in this case is how you deal

with overtime, there is still a residual

group of workers who, on any view, will be

affected but the broader special leave point
is that somehow section 95(1) has to be
interpreted and we would very. respectfully

submit that the interpretation of the Full Court

is incorrect and this is, indeed, an appropriate
case to test it because it raised the issue and

the issue will remain there while 95(1) is in

its form. Ultimately, if one gets back to

Mr Catlow, an incapacitated person as with any

other person in his situation, matters of small

monetary moment add up over the years and this

case raises such an issue in precise and definable

terms. So, in our submission, despite the

amendments, it is an appropriate case for

special leave on one minor point, that the case

is dead as far as special leave is concerned

because it directly deals with it, but that is

only a minor point. For those reasons, we

submit this is a case of substantial public

importance in this State potentially affecting

every worker and it is an appropriate case for

special leave. May it please the Court.

MASON CJ: Thank you, Mr Black. Yes, Mr Phillips.

(Continued on page 12)

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Catlow
MR	PHILLIPS:	May it please the Court. My learned friend has

not made it plain that in the application that

he makes the applicant is seeking to challenge

only a part of what has hitherto been challenged.

On the two-concept basis there was initially

a challenge to the content of ordinary time rate of pay. It was suggested in the Full

Court - it was part of the the grounds before the Full Court - that that included overtime. That is no longer a part of the notice of appeal

which is foreshadowed in the application papers.

The only challenge now is that the Full Court

erred in disregarding the number of hours actually

worked. So, on the two-concept basis, the only

challenge is to the second of the two concepts,

the normal number of hours.

That gives rise to an unlikely marriage.

Accepting that the ordinary time rate of pay

does not include overtime, the applicant would

have it that you marry that by multiplication

to the number of hours actually worked which

is not going to give you average weekly earnings,

it will give you a calculation of something.

What the Full Court did was adopt a construction

which had the effect of calculating average

weekly earnings but exclusive of overtime altogether.

The crux of my learned friend's application

and attack on the Full Court judgment lies in

the assertion that the number of hours, for
the purposes of this calculation, can be the

number of hours actually worked. We submit

that just cannot be made out. If one looks

at section 95(3)(c), the premise on which that

operates is that:

if a normal number of work hours per week

is not fixed for the worker's work under

the terms of the worker's employment.

So the reverse premise is that the normal number

of work hours per week can be fixed for the

worker's work under the terms of employment.

Of course, a number of hours can be fixed

by the terms of employment only in advance by

a contract or something standing for a contract.

It is quite different to look at the number

of hours actually worked because that can only

be fixed ex post facto.

A consideration of that possibility, we

submit, leads inevitably to the conclusion that the normal number of work hours per week cannot

mean the number of hours actually worked because

of the premise in 95(3)(c).

MITll/1/SDL	12	PHILLIPS,	14/10/88
Catlow

It supposes that they can be fixed by the terms

of employment; it may, of course, be that the

normal number of hours each week which are worked

coincide with the number of hours which are

fixed by the terms of employment, but you are

directed to look at that number not because

it has been actually worked but because it is

the number fixed by the terms of employment.

If that analysis be correct, and we submit it is, it is fatal to the application made because

it is an application in which the applicant

seeks to have the Court construe section 95

so that one is looking at and having regard

to the actual number of hours worked on a normal

basis, an usual basis, or whatever word you

like to use to qualify the primary phrase.

BRENNAN J:  How is the normal number of hours per week

to be fixed by the terms of a worker's employment?

MR PHILLIPS: The Full Court said that it is the number

of hours fixed by the terms of employment for

which the ordinary time rate of pay is payable.

BRENNAN J:  Why should that be right?

MR ?HILLIPS: Your Honour, it is, we submit, the ordinary

time rate of pay for the worker's normal number

of hours per week. If you regard ordinary time
as qualifying all that follows, it is the ordinary

time rate of pay for the worker's normal number
of hours per week. It is a concept involving

ordinary time and in the context of ordinary

time the phrase "normal number of hours per

week" is readily understood, even in an industrial

context. It means the ordinary hours, the hours

which are fixed as normal; fixed as the norm

by the terms of employment. It is not "ordinarily

worked", it is fixed by the terms of employment

as the standard or norm. That is the way in

which the cases have developed this concept

of "normal number of hours per week" in another

situation which is not dissimilar.	Might I
refer the Court to - - -

BRENNAN J: If you look at (3) (a), one there has the situation"

if an ordinary time rate of pay is fixed

for the worker's work -

and, under (c):

if a normal number of work hours per week

is not fixed for the worker's work.

MR PHILLIPS: Yes.

MITll/2/SDL	13	PHILLIPS,	14/10/88
Catlow

BRENNAN J:  So that it would seem as though the draftsman had

in mind two concepts which were not necessarily

to be identified one by reference to the other?

MR PHILLIPS: Perhaps, perhaps not. We would submit

it is equivocal. Both are open as a matter

of semantics and we suggest that to marry up
ordinary time rate of pay, which it is now accepted

does not include overtime, with something like

an actual number of hours worked on a normal

or usual basis is to produce something which

is scarcely average weekly earnings. It is

like average weekly earnings including overtime

hours but discounted at ordinary time rates,

which is an awkward result.

If, as the Full Court suggests, normal

number of work hours is to be fixed - you seek

it; you ask, "Is it fixed?" - as a normal or

standard number for which ordinary time rates

are payable, the whole thing fits into a pattern.

X overtime hours are excluded, overtime rates

are excluded, the worker is to be compensated

at a rate which is by reference to ordinary,

not overtime, hours of rates. You get average

weekly earnings exclusive of overtime. This

use of this double concept, or apparent double

concept, has been taken, apparently, from legislation

involving payment for annual leave and long

service leave. If you take the two-concept

approach it is interesting, in our submission,

that the courts have reached the same result

as the Full Court did by the other route of

looking at the two concepts and construing "normal

number of hours" in the way we would have it.

That is, those standard number of hours for

which the worker is to be remunerated at ordinary

time rates.

Could I hand to the Court four copies of

one of the cases, JOHN A. GILBERT PTY LTD V

IRVING, (1962) AR 307. If the Court turns to

page 310 the Court will see the form of legislative

expression which turns on ordinary pay. I can

tell the Court that ordinary pay is the yardstick

for payment of annual leave or long service

leave in this legislation. "Ordinary pay" is

defined:

in relation to any worker, means

remuneration for the worker's normal weekly

number of hours of work calculated at the

ordinary time rate of pay.

You get more obviously the twin concept. Under

subsection (2) of the legislation as it is there

found, is:

MITll/3/SDL	14	PHILLIPS,	14/10/88
Catlow

For the purposes of the definition

of the term "ordinary pay" in subsection

one of this section -

(a) where no ordinary time rate of pay

is fixed for a worker's work under the

terms of his employment the ordinary time

rate of pay shall be deemed to be the average

weekly rate earned by him .....

(b) where no normal weekly number of hours

is fixed for a worker under the terms of

his employment, the normal weekly number

of hours of work shall be deemed to be

the average weekly number of hours.

If one can go straight back to the headnote

and look at paragraph (5) of what was decided,

it is simply put this way:

In the definition of "Ordinary pay" in

s.2 the words "a worker's normal weekly

number of hours" means the number of hours

fixed by the terms of his employment as

the standard of ordinary hours, as distinct

from overtime hours, to be worked in a

week; meaning of "normal" discussed.

I need not go through it but in different legislation,

in different circumstances, where you approach it with twin concepts, the courts have reached

a like result, that "normal number of hours"

does not mean the number of hours normally worked

or usually worked; it means the standard or

norm fixed by the terms of employment and that,

we submit, is what section 95(3)(c) is about.

Can I take the Court to, for the use of

language, RV GALVIN, because my learned friends

have submitted that in the industrial field this expression "normal number of hours" is

a strange one. First of all, it is not strange

because the cases to which I have already referred
accept that "normal number of hours" means "ordinary"

exclusive of overtime. In RV GALVIN EX PARTE

METAL TRADES EMPLOYERS' ASSOCIATION AND OTHERS,

(1949) 77 CLR 432 - a case in 1949 - the question

concerned "standard hours of work" and, at page 447.

three-quarters of the way down, this sort of

language was employed in an industrial context

about standard hours. May I take the Court to

a little over half-way down page 447, towards
the end of a paragraph which starts half-way

down that page? This is said, in the joint judgment

of Their Honours:

MITll/4/SDL	15	PHILLIPS,	14/10/88
Catlow

The legislature must be assumed to have

been aware of the long-established practice

in industrial tribunals of prescribing

in awards what were to be -

not ordinary but what were to be -

the normal working hours in an industry

subject to special provisions where such

circumstances were deemed to warrant some

remission in such working hours. The general

provisions for normal hours must be regarded

as fixing the standard hours of work.

Take that in the context of paragraph 9 of the

affidavit in support where it is said that it

is well established as a matter of industrial

practice that awards fix the ordinary hours

or the hours for which ordinary rates of pay

are to be payable. They do. Their Honours

there call those the "normal hours"; they were

fixed as the standard or norm and the expression
"normal hours worked" if fixed by the terms

of employment readily therefore, we would submit,

can be understood as meaning those hours of

work fixed by the terms of employment as the norm or standard for which the ordinary time

rate of pay is payable.

We say therefore that there is no sufficient

doubt attending the Full Court decision to warrant

special leave in this case; that my learned

friend's application founders on this concept

of the actual number of hours worked because
of 95(3)(c) and the premise there contained

that it may in some cases be fixed under the

terms of the employment which "actual number

of hours" cannot be, save coincidentally.

Alternatively, if the Court were still

minded· to grant special leave, we emphasize the

changes which have been made to this section.

The Court will have already before it section 4A

of the later amending Act which indicates that

as from 1 December 1987 - I am sorry, there

was a later affidavit put in with an exhibit

to it and exhibit D was section 4A. I have

copies here if the Court wishes to have them.

I hand three copies to Court members.

BRENNAN J:  I have exhibit D.

MR PHILLIPS: Yes, it is -exhibit D. Section 4A(l) came

into effect after the amendments affecting

section 95 but it provides .that:

MITll/5/SDL	16	PHILLIPS,	14/10/88
Catlow

If a worker commences or has commenced to

receive compensation in the form of weekly

payments, the entitlement of that worker

to continue to receive weekly payments

depends upon the provisions of this Act

in force from time to time.

The somewhat novel step has been taken under
this new scheme for work care of providing weekly
payments rather than any lump sums except in
some qualified circumstances and so the weekly

payments may run on for many,many years. This

makes it plain that the statute as in force

from time to time is now to govern the entitlement

to weekly payments. So that even in the case

of Mr Catlow, where he commenced to receive

weekly payments before the amendments were made to section 95, he is thereafter - that is after 1 December 1987 - governed by the section as

it now stands.

BRENNAN J: Is there provision for him to go back to the

tribunal to get the benefit of the amendments

to the Act?

MR PHILLIPS: Presumably, if he is underpaid according

to the amendments, he will complain about the

Commission's non-payment or insufficient payment

and go back to the Tribunal and seek to argue

under the new Act that he is entitled.to more

if he does not get enough.

BRENNAN J: There is no kind of res judicata about it?

MR PHILLIPS: No, not so far as Your Honour's question

is concerned. He is to be paid weekly payments

from week to week; if he does not get what he says he is entitled to he can go b~ck to

the Tribunal complaining about the Commission's

failure to pay him. That will immediately

attract, if we are right in our construction

of section 4A(l), which we submit we plainly

are - he then goes back under the new section. The question is: that immediately means that

these amendments to section 95 which came into force on 1 December 1987, how far does the Act before .amendment affect other cases?

In our submission, it can only

remains as effective in cases where some question

is still outstanding concerning weekly payments

before 1 December 1987. Can we add to that - there

is even this complication in this case: until

the Full Court decision which was in August 1988,

presumably payments were being made in accordance

with the Tribunal's decision which has handed

down in Mr Catlow's case in December 1986.

MITll/6/SDL	17	PHILLIPS,	14/10/88
Catlow

So from 9 December 1986, which was the Tribunal's decision on the old section 95, until that was

upset by the Full Court decision on 11 August 1988,

presumably payments were being made in accordance

with the Tribunal decision which is not now

complained of not to any significance.

BRENNAN J:  And .there is no suggestion of entitlement

to a retund on the part of the Commission?

MR ~HILLIPS: I am not instructed, Your Honour, but I

have not heard of a suggestion of a refund.

Presumably payments were made in line with the
Tribunal decision and presumably it was only

as from 11 August 1988 that the more restrictive

approach has been adopted. Now, it is well

after 1 December 1987. No longer are payments

being made under the old Act or the Act before

amendment; they are being made under the new section 95 and the question must be now, "How

far is Catlow's decision going to be a live decision under section 95 in its new form?"

We submit that that is what Mr Catlow should

be doing, perhaps, going back, if he wants to,

to the Tribunal to argue about the application

of his decision, the Full Court decision, in

the context of the new section. Then, if he

finds that adverse - we would be guessing at

what the result would be - wending his way back

if he has to.

The amendments to section 95 are not just

a line or two, there are several subsections

which have been changed and one of them, of

course, is the insertion of the new (ba) which

refers to the number of hours being fixed in

an industrial award. That may have an effect.

I can imagine an argument being based on one

of the new provisions, section (lA), about a

voluntary change in the number of hours worked

that may point the other way. But, of section 95

as it now is before the Court, (1A) is new,

(l)(a) is new, (lB) is new and then subsection

(3)(ba) is new and subsection (e) of that subsection

and section (4) has been changed - there are

a number of changes.	How far they are affected
is perhaps speculative.	They either make it

easier to uphold the Full Court decision or

they make it harder. If it is easier, it is

a sterile exercise to look at the Full Court

decision without the ,assistance afforded by

the new amendments; if it is harder, then it

is something which ought to be debated before

the matter reaches this Court. Either way there
seems to be very limited effect on the face
of it for the Full Court decision until it is

known how far it is going to be applied straight

down the line under the new section 95. It

MITll/7/SDL	18	PHILLIPS,	14/10/88
Catlow

may well just be adopted but it is a different

argument then, in the light of the new provisions.

So for those reasons we submit firstly

that there is no sufficient error attending

the decision below and, secondly, if there be,
that this is not an appropriate case because
already the section has been amended so as to

make it appropriate now for the Court to be seized of the problem in the context of the

section as amended rather than as the section

before it was amended.

BRENNAN J:  Mr Phillips, I am not sure whether you are in

a position to assure the Court that Mr Catlow

would not be subject to a claim for a refund

in respect of payments made before the Full

Court decision.

MR PHILLIPS:  I think I can get those instructions. Would

Your Honour pardon me? Just so that I understand what I am giving the assurance about, Your Bonour,

the question is _whether any attempt would

be made by the Commission to have Mr Catlow
refund weekly payments that have been made to

him on the strength of the Tribunal's decision - - -

BRENNAN J:  And received by him prior to the Full Court's

decision.

MR PHILLIPS: Prior to the Full Court's decision. I can

give the assurance, Your Honour. No attempt

would be made to recover such payments from

Mr Catlow.

BRENNAN J:  Yes. Now, do I understand that from the time

of the Full Court's decision, his entitlement

would be governed by the new Act and

not by the old Act?

MR PHILLIPS: If our view of section 4A is upheld, yes,

Your Honour. In this Act it is very difficult

to give any assurances about the construction

ultimately adopted but - - -

BRENNAN J:  Yes, given. your submissions as to 4A.

MR PHILLIPS:  Yes. Then, as we read section 4A, it means

that the section, as amended, governs from

1 December 1987, so that the Full Court decision

could be effective as to payments prior to

1 December 1987 unless I make it plain, under
the new section 95, the decision of the Full

Court were held to be still applicable and

appropriate notwithstanding the amendments.

But, of course, that is a different question

which is not raised yet.

MITll/8/SDL	19	14/10/88
Catlow

GAUDRON J:  The only issue, really, is whether or not the

normal hours are fixed by the terms of employment?

MR PHILLIPS:	Yes.
GAUDRON J:	And that really was disputed by Mr Black's

client as part of the appeal before the Full

Court in any event?

MR PHILLIPS: Yes. Several things were in dispute: whether

ordinary time rate of pay included overtime or not, and that was decided by the Full Court

against Mr Catlow and that is not being sought

to be reopened; the other point was whether

or not "normal number of hours" meant "number

of hours usually worked" - that is in fact -
or whether it meant, as we submitted, the number

of hours fi~ed by the terms of employment as

the normal standard. There were subsidiary
points: the weighted average point referred
to by His Honour Justice Brennan was one of

them; whether or not when you average you take a divisor of 52 or the number of weeks worked -

there were other matters but none of those are

now sought to be raised, as I understand it,

except with that one qualification my learned

friend, Mr Black, did mention. I think something

about the weighted average - it is a small point.
It makes very little difference to Mr Catlow's case because the figures came out very close

in any event but there is a problem there, I gather.

So, if the Court pleases, for those reasons,

we would submit that the application ought not

to be granted.

MASON CJ:  Thank you, Mr Phillips. Yes, Mr Black?

MR BLACK: If Your Honours please. It is true that the

section has been amended and, indeed, the

copy that we gave to the Court had the amendments

in it but those amendments, in our submission,

simply do not bear upon the central question

as to how you go about the daily task of working

out the operation of section 95(1). Some matters

have been dealt with but fundamentally the question

remains: is there one concept which, once identified,

solves the problem, as the Full Court held,

or are there two concepts, as the Accident
Compensation Tribunal held? If the latter,

then some workers will, it is apprehended, be

better off in their compensation. But all the

amendments that have been made do not, in our

submission, alter the central legal point that

arises under section 95(1).

MITll/9/SDL	14/10/88
Catlow

In relation to Mr Catlow's particular case,

he is not, in fact, subject to any industrial

award so that amendment does not catch him and,

as we have indicated, there would be other workers,

in our submission, many of them, who would not

be so caught. But, be all that as it may, the

central question which arises squarely for decision

in Mr Catlow's case, in our submission, is

unaffected by the amendments and if my learned

friend's argument is taken to its conclusion,

every time the Victorian Parliament amends this

Act - and one might venture to suggest it will be making more amendments to it; indeed, that

is anticipated in the answering affidavit -

it will be used in answer to any application

for special leave, and, if there is a special

leave point, as we say there is, it will never

reach the Court.

GAUDRON J:  I take it you concede that your divisor point

is settled by the amendments?

MR BLACK:  Yes, it is settled.

GAUDRON J: And it is no longer - - -

MR BLACK: If we could promise to take only five minutes

to argue it, and we would give such a promise,

then we would seek leave on that condition.

But it is a minor point - it is important - - -

GAUDRON J:  But it has gone?

MR BLACK: It has gone, yes. It would be a five-minute,

five-line argument in the main appeal which

would centre about matters, in our submission,

that are still live in the ADMINISTRATIONS ACT

in Victoria. May it please the Court.

MASON CJ:  The Court will grant special leave to appeal

in this matter.

AT 3. 11 PM THE MATTER WAS ADJOURNED SINE DIE

MITll/10/SDL	21	14/10/88
Catlow