Coles Supermarkets Australia Pty Ltd v Nicole Marie Harris
[2013] ACTSC 255
•16 December 2013
COLES SUPERMARKETS AUSTRALIA PTY LTD v NICOLE MARIE HARRIS
[2013] ACTSC 255 (16 December 2013)
WORKERS COMPENSATION – STATUTORY INTERPRETATION – appeal from Magistrates Court – whether in s 41 and 42 Workers Compensation Act1951 (ACT), “the national minimum wage” in definition of statutory floor is reference to weekly minimum wage only, or whether permissible to use the hourly rate where worker working less than 38 hours per week – legislative intention behind Act is to provide compensation to injured workers and to encourage rehabilitation – courts will not readily interpret a statute such that any word, phrase or provision is rendered redundant, if some other interpretation is available – pre-incapacity statutory floor is a constant weekly rate, not to be expressed as the worker’s hourly rate multiplied by the average number of hours worked – no separate arrangements for compensating part-time workers in Act
Fair Work Act2009 (Cth), s 285
Legislation Act2001 (ACT), ss 139, 140
Statute Law Amendment Act2011(No 2) (ACT)
Workers Compensation Act1951 (ACT), ss 36G, 39, 40, 41, 41(1)(a), 42
Workers Compensation Amendment Act2001 (ACT)
Workplace Relations Act1996 (Cth)
Explanatory Memoranda, Workers Compensation Amendment Bill 2001 (ACT)
Beckwith v The Queen (1976) 135 CLR 569
Commonwealth v Baume (1905) 2 CLR 405
Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113
Imperial Chemical Industries of Australia & New Zealand Ltd v Commissioner of Taxation(Cth) (1971) 46 ALJR 35
Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Thompson v Goold & Co [1910] AC 409
Wilson v Commissioner of Stamp Duties (1988) 13 NSWLR 77
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 39 of 2013
Judge: Burns J
Supreme Court of the ACT
Date: 16 December 2013
IN THE SUPREME COURT OF THE )
) No. SCA 39 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: COLES SUPERMARKETS AUSTRALIA PTY LTD
Appellant
AND: NICOLE MARIE HARRIS
Respondent
ORDER
Judge: Burns J
Date: 16 December 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
The appellant is to pay the respondent’s costs of the appeal.
The respondent worker suffered personal injury arising out of, or in the course of, her employment with the appellant on 7 December 2009. In arbitration proceedings under the Workers Compensation Act1951 (ACT) (“WCA”), the parties agreed that the worker was entitled to payments of weekly compensation under the WCA, and were in agreement as to all essential factual issues. The one issue which they placed before the Magistrate for arbitration was whether the term “national minimum wage” forming part of the definition of “statutory floor” in s 36G of the WCA should be interpreted by reference to the hourly rate or the weekly rate set by the relevant federal authority from time to time.
The learned Magistrate found that the term “national minimum wage” was a reference to the weekly rate set by the relevant federal authority from time to time. The appellant appeals from that decision on the following grounds:
a)her Honour erred in applying a weekly rate as such a finding was inconsistent with the context of the Act as a whole; and
b)her Honour erred in applying a weekly rate in circumstances where an hourly rate best achieved the purposes of the Act.
THE FACTS
The following agreed facts were placed before the Magistrate:
a)The worker was born in 1982.
b)On 7 December 2009, the worker was employed on a part-time basis by the appellant and had been so employed since about 11 November 2009.
c)The worker worked for the appellant only in the ACT.
d)On 7 December 2009, the worker suffered a personal injury arising out of, or in the course of, her employment at the appellant’s premises at Tuggeranong in the ACT.
e)As a result of that injury the worker has, since 7 December 2009, been certified as totally incapacitated for work.
f)The worker’s average pre-incapacity weekly hours was 18 hours.
g)The worker’s average pre-incapacity weekly earnings were $429.65.
h)No claim was made and the parties sought no arbitration concerning weekly compensation paid or payable to the Applicant prior to 25 April 2011.
i)The federal minimum wage as at 7 December 2009 was $543.78 (based on a 38 hour week) or $14.31 per hour.
The relevant statutory provisions
Section 39 of the WCA provides that where a worker is incapacitated, either totally or partially, because of a compensable injury, the worker is entitled to compensation during the first 26 weeks of incapacity calculated as follows in subs (4):
(a)for any period during which the person is totally incapacitated during the period of entitlement – the worker’s average pre-incapacity weekly earnings;
(b)for any period during which the person is partially incapacitated during the period of entitlement – the difference between –
(i)the worker’s average pre-incapacity weekly earnings; and
(ii)the average weekly amount that the worker is being paid for working or could earn in reasonably available suitable employment.
Section 40 of the WCA provides for the entitlement of injured workers to compensation after the initial 26 weeks provided for by s 39. Where a worker remains totally incapacitated for work after the first 26 weeks of incapacity, they are entitled to weekly compensation under s 41 of the WCA. Section 41 provides:
Entitlement to weekly compensation after 26 weeks of total incapacity
(1)If a worker is entitled to receive weekly compensation under this section for a period, the worker is entitled to receive weekly compensation equal to –
(a)if 100% of the worker’s average pre-incapacity weekly earnings is less than the pre-incapacity floor for the worker – 100% of the worker’s average pre-incapacity weekly earnings; or
(b)if 100% of the worker’s average pre-incapacity weekly earnings is more, but 65% of those earnings is less, than the pre-incapacity floor for the worker – the statutory floor; or
(c)if 65% of the worker’s average pre-incapacity weekly earnings is more than the pre-incapacity floor for the worker – whichever of the following is (at the time of payment) more:
(i) 65% of the worker’s average pre-incapacity weekly earnings;
(ii) the statutory floor.
(2)In this section:
pre-incapacity floor, for a worker, means the statutory floor that applied immediately before the initial incapacity date for the worker in relation to the injury.
The entitlements of workers who remain partially incapacitated for work after the initial 26 week period are set out in s 42:
Entitlement to weekly compensation after 26 weeks of partial incapacity
(1)If a worker is entitled to receive weekly compensation under this section for a period, the worker is entitled to receive weekly compensation equal to the difference between the weekly amount the worker is being paid for working or could earn in reasonably available suitable employment and –
(a)if 100% of the worker’s average pre-incapacity weekly earnings is less than the statutory floor – 100% of the worker’s average pre-incapacity weekly earnings; or
(b)if the relevant percentage of the worker’s average pre-incapacity weekly earnings is less than the statutory floor – the statutory floor; or
(c)if the relevant percentage of the worker’s average pre-incapacity weekly earnings is more than the statutory ceiling – the statutory ceiling; or
(d)in any other case – the relevant percentage of the worker’s average pre-incapacity weekly earnings.
(2)For this section, the relevant percentage is –
(a)if the worker is not working or works 25% of the worker’s average pre-incapacity weekly hours or less – 65%; or
(b)if the worker is working more than 25% of the worker’s average pre-incapacity weekly hours but not more than 50% – 75%; or
(c)if the worker is working more than 50% of the worker’s average pre-incapacity weekly hours but not more than 75% - 85%; or
(d)if the worker is working more than 75% of the worker’s average pre-incapacity weekly hours but not more than 85% - 95%; or
(e)if the worker is working more than 85% of the worker’s average pre-incapacity weekly hours – 100%.
(3)For this section, in working out the average weekly amount the worker could earn, consideration may be given to the following:
(a)suitable employment that the worker unreasonably rejects;
(b)suitable employment that the worker obtains but unreasonably discontinues.
(4)In this section:
statutory ceiling, in relation to an amount, means 150% of the AWE at the time the amount is to be paid.
Both s 41 and 42 refer to the “statutory floor”. The statutory floor is the national minimum wage set by a national minimum wage order in an annual wage review by Fair Work Australia under the Fair Work Act2009 (Cth): s 36G WCA. The relevant provisions of the Fair Work Act2009, and in particular s 285 which requires the Fair Work Commission to conduct an annual wage review in each financial year, came into effect on 1 January 2010. The current definition of “statutory floor” in s 36G is a consequence of amendments made by the Statute Law Amendment Act2011(No 2) (ACT). Prior to those amendments the definition of “statutory floor” in the WCA was a reference to the minimum wage decided from time to time by the Australian Industrial Relations Commission under the Workplace Relations Act1996 (Cth). It is not suggested that anything in this appeal turns upon this amendment to the definition of “statutory floor”. For convenience, I will adopt the suggestion of the parties and I will simply refer to the statutory floor as being the minimum wage set by the relevant federal authority from time to time.
Prior to 2005, the minimum wage set by the relevant federal authority was expressed as a weekly rate only. Since 2005, it has been expressed as both a weekly rate based on a 38 hour week, and as an hourly rate. For example, the National Minimum Wage Order 2012 provided:
4.1The national minimum wage is $606.40 per week, calculated on the basis of a week of 38 ordinary hours, or $15.96 per hour.
Section 41 of the WCA draws a distinction between the statutory floor and the pre-incapacity floor. The statutory floor will vary from time to time as the relevant federal authority varies the minimum wage. On the other hand, the pre-incapacity floor will always remain the same for the individual injured worker, as the minimum wage that was in force immediately before the initial incapacity date for the worker in relation to the injury.
THE ISSUE
Expressed simply, the issue is whether the term “the national minimum wage” in the definition of statutory floor is a reference to the weekly minimum wage only, or whether it is permissible to use the hourly rate where an injured worker was working less than 38 hours per week prior to their initial incapacity date. The Magistrate concluded that it referred to the weekly minimum wage only.
The appellant’s submissions
The appellant argued that use of the hourly rate for the purpose of calculation of the entitlements of part-time workers best achieves the overall purpose and objectives of the WCA, and as such is the preferred interpretation: s 139, 140 Legislation Act2001 (ACT). The appellant based this contention on changes made to the WCA commencing 1 July 2002 by the Workers Compensation Amendment Act2001 (ACT) (the 2001 amendments). These changes, the appellant said, were designed to provide a benefit structure that encouraged injured workers to achieve “early and durable return to work outcomes”. The appellant referred to an Explanatory Memorandum to the 2001 amendments, which said:
The proposed legislative changes are focussed on reshaping the current ACT workers compensation scheme from one which is based on entitlements, to one which is based on rehabilitation and return to work.
...
Effective rehabilitation will be supported by a benefit structure that encourages workers to return to work as early, and as safely, as possible.
The appellant argued that a key element of the 2001 amendments was the introduction of s 41 and 42 of the WCA (at that time numbered s 8C and 8E respectively), with s 41 providing that after the first 26 weeks of incapacity, a totally incapacitated worker’s benefits “step down” to the greater of:
a)65% of the workers pre-incapacity weekly earnings; or
b)the statutory floor.
It is inherent in the appellant’s argument that this step down is an important part of the benefit structure designed to encourage injured workers to rehabilitate and return to work.
In the present case the worker was apparently working an average of 18 hours per week prior to her incapacity. The appellant argued that adopting the weekly rate of minimum wage, as the Magistrate did, results in the worker continuing to receive her full pre-injury earnings for any period of incapacity, whether total or partial, for the duration of such incapacity. This, the appellant argues, undermines the 2001 amendment and provides no incentive for the worker to rehabilitate and return to work. The appellant argued that the approach taken by the Magistrate of applying the minimum weekly wage based on a 38 hour week has the effect of skewing the benefits in the WCA in favour of part-time workers, when there is no obvious reason why this should be the case. It also argued that the federal minimum wage did not operate to provide a “floor level of income” for part-time workers regardless of the hours they work, and the same principle should apply to its application to the WCA.
The respondent workers submissions
The worker argued that limited weight should be given to that part of the Explanatory Memorandum for the 2001 amendments quoted by the appellant, as it was only one of three such memoranda that accompanied the 2001 amendments, and was published before the Bill was amended to include what became s 8C and 8E (now s 41 and 42).
The worker also argued that the WCA as it was prior to the 2001 amendments already provided for a step down in payments after the first 26 weeks, so that this feature was not introduced into the WCA by the 2001 amendments. The worker argued that the real change to entitlements brought about by the 2001 amendments was to introduce protections for low paid workers through the mechanism of the statutory floor. In support of her argument, the worker referred to extracts from the second and third Explanatory Memoranda for the 2001 amendment, which I will not set out here. The worker argued that the use of statutory floors in s 41 and 42 provided a safety net for low paid workers, and the fact that applying the weekly minimum wage rate would result in workers like her receiving their full pre-injury income was not an anomaly, but rather an intended outcome of the 2001 amendments.
CONSIDERATION
The appellant’s arguments should be rejected based upon examination of the text and history of the WCA. I make it clear that I received little assistance in resolving this issue from the Explanatory Memoranda to the 2001 amendments. It is true, as the appellant argued, that those amendments were designed to shift the focus of the WCA from entitlements only, towards rehabilitation and return to work. The entitlement of injured workers to compensation remained, however, a significant feature of the WCA after the 2001 amendments.
The WCA, subsequent to the 2001 amendments, strikes a balance between providing an entitlement to fair compensation for injured workers, and encouraging such workers to rehabilitate and return to work. Reference to the terms of the Explanatory Memoranda does not assist in determining where the legislature set that balance. To determine that, it is necessary to return to the text of the WCA, and to consider its history.
One fact that clearly arises from the text of s 41 is that the legislature intended that some totally incapacitated workers would receive their full average pre-incapacity earnings after the first 26 weeks of incapacity. That is what s 41(1)(a) plainly says. This fact tends to refute one of the appellant’s central propositions: that the step down in benefits found in s 41 and 42 are directed to encouraging injured workers to rehabilitate and return to work.
Another circumstance that militates against the interpretation urged by the appellant is that it would result in s 41(1)(a) and 42(1)(a) having no work to do. The interpretation accepted by the Magistrate means that the comparison required by these provisions is between a figure which varies from worker to worker (the worker’s average pre-incapacity weekly earning) and a figure which is constant for all workers (the pre-incapacity statutory floor, as the weekly rate). The appellant’s interpretation replaces the constant figure with a figure that again varies from worker to worker (the pre-incapacity statutory floor, expressed as the worker’s hourly rate multiplied by the average number of hours the worker worked pre-incapacity). The difficulty, however, is that in the appellant’s interpretation the workers average pre-incapacity earnings (hours per week multiplied by rate per hour) must always equal or exceed the statutory floor (hours per week multiplied by rate per hour). For the lowest paid workers, the rate per hour will be the minimum rate prescribed by the relevant authority, so that the rate per hour on both sides of the comparison will be the same. As the hours worked pre-incapacity is a constant for the worker, the comparison is inevitably between two identical figures. Where the worker is on a higher hourly rate than the prescribed minimum rate, the workers average weekly earnings will always exceed the statutory floor. The consequence is that 100% of the workers pre-incapacity weekly earnings could never be less than the statutory floor. This removes any work that s 41(1)(a) and 42(1)(a) could do, making those provisions redundant.
It is a long-standing and well recognised principle of statutory interpretation that courts will not readily interpret a statute such that any word, phrase or provision is rendered redundant, if some other interpretation is available. In Commonwealth v Baume (1905) 2 CLR 405, Griffith CJ referred to the antiquity of this principle, at 414:
In The King v Berchet, a case decided in 1688, it was said to be a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent.
This principle has been consistently applied: Beckwith v The Queen (1976) 135 CLR 569 at 574; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679; Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 12-13. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, in a joint judgment (at [71]) McHugh, Gummow, Kirby and Hayne JJ cited with approval the extract from the decision of Griffith CJ from the Commonwealth v Baume quoted above.
If there is a choice between two possible interpretations of a statutory provision, one of which makes some part of the statute otiose and one which does not, in the absence of compelling reasons, that interpretation which gives effect to all of the provisions of the statute is to be preferred. There is no inconsistency between this approach and the provisions of s 139 of the Legislation Act. Whilst the Legislation Act permits the use of material not forming part of an Act for the purpose of words of the Act that the legislature actually speaks. It should not lightly be inferred that the legislature intended to speak to no effect, nor is it necessary to do so in this case. The choice in this case is not between an interpretation consistent with the legislative intention, and one which is not. The legislative intention behind the WCA is twofold: to provide compensation to injured workers and to encourage rehabilitation. In interpreting the definition of statutory floor the Court is required to determine how the legislature has struck the balance between these two, sometimes inconsistent, objectives.
The interpretation urged by the appellant also has the difficulty that it requires words to be read into the definition of “statutory floor” in s 36G of the WCA. In the interpretation favoured by the Magistrate, the comparisons required by s 41 and 42 in between two weekly figures – the workers average pre-incapacity weekly earnings and the pre-incapacity statutory floor expressed as a weekly sum. As such, the comparison is one of like with like. The interpretation urged by the appellant does not involve comparing like with like – it involves comparing a weekly figure with an hourly rate. In order to make such a comparison possible, the hourly rate must be converted into a weekly figure by multiplying the hourly rate by the average hours worked per week by the worker pre-incapacity. The appellant’s interpretation of the term “statutory floor” requires this manipulation of the hourly rate to be read into the definition of “statutory floor” in s 36G before any comparison can be made. There is no apparent warrant in the terms of s 36G for this approach. In Thompson v Goold & Co [1910] AC 409 at 420, Lord Mersey said:
It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.
There is a third reason the appellant’s contentions should be rejected. When the definition of “statutory floor” was inserted into the WCA in the 2001 amendments, the minimum wage set by the relevant federal authority was expressed as a weekly sum only. It may therefore be assumed that the legislature, in passing the 2001 amendments, intended the comparisons required by s 41 and 42 to be between the workers average pre-incapacity weekly earnings and the minimum wage set by the relevant federal authority as a weekly sum. Of course, the meaning of a term found in a statute will not always be confined to the meaning that it held at the time of enactment, as it may be clear that the legislature intended the meaning of the term should not be so confined. For example, in Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327 it was held (at 331) that the reference to “gas” in the Local Government Act 1906 (NSW) included liquefied petroleum gas, whereas “only coal gas would have been in the contemplation of the Parliament at the time the legislation was adopted”. See also Imperial Chemical Industries of Australia & New Zealand Ltd v Commissioner of Taxation(Cth) (1971) 46 ALJR 35 at 43. After referring to these decisions, Spigelman CJ in Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113, said (at [142]):
Where, as here, Parliament has chosen a formulation which is of indeterminate scope and of a high level of generality, a court should interpret the provision on the basis that the intention of the original enactment was that the particular application of the provision may vary over time.
In similar vein, Kirby P in Wilson v Commissioner of Stamp Duties (1988) 13 NSWLR 77 said (at 78):
[I]t may be an appropriate modern canon of statutory construction to adapt language of generality, although originally designed to apply to an earlier technology, to apply to the supervening technology as well.
As the time that the legislature amended the WCA to include reference to the “statutory floor”, there was only one minimum wage set by a federal authority, and that was expressed as a weekly sum. This is not “language of generality” or a formulation of indeterminate scope. It is a term that could have had only one meaning at the time it was enacted. When the legislature enacted s 41 and 42 it determined that fair compensation for injured workers was to be determined by means of formulae involving a comparison between the workers average pre-incapacity earnings and the minimum wage set by the relevant federal authority as a weekly sum. The legislature chose not to make separate arrangements for compensating part-time workers. The interpretation urged by the appellant would fundamentally change this position, to the detriment of part-time workers. This was clearly not the intention of the legislature in making the 2001 amendments.
CONCLUSION
For these reasons I am satisfied that the Magistrate was correct, and this appeal should be dismissed.
I certify that the preceding twenty seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 16 December 2013
Counsel for the Appellant: Mr A Muller
Solicitor for the Appellant: Moray & Agnew
Counsel for the Respondent: Mr S Hausfeld
Solicitor for the Respondent: Blumers Personal Injury Lawyers
Date of Hearing: 30 October 2013
Date of Judgment: 16 December 2013
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