EG Green and Sons Pty Ltd v Sabourne
[2009] WASCA 172
•7 OCTOBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: EG GREEN & SONS PTY LTD -v- SABOURNE [2009] WASCA 172
CORAM: WHEELER JA
BUSS JA
NEWNES JA
HEARD: 3 SEPTEMBER 2009
DELIVERED : 7 OCTOBER 2009
FILE NO/S: CACV 113 of 2008
BETWEEN: EG GREEN & SONS PTY LTD
Appellant
AND
WAYNE JOHN SABOURNE
Respondent
FILE NO/S :CACV 112 of 2008
BETWEEN :HARVEY INDUSTRIES GROUP PTY LTD
Appellant
AND
MASON McKENZIE-CLARK
Respondent
ON APPEAL FROM:
Jurisdiction : DISPUTE RESOLUTION DIRECTORATE, WORKCOVER WA
Coram :COMMISSIONER McCANN
File No :C 20 of 2008
Jurisdiction : DISPUTE RESOLUTION DIRECTORATE, WORKCOVER WA
Coram :COMMISSIONER McCANN
File No :C 19 of 2008
Catchwords:
Workers' compensation - Appeal from decision of Commissioner - 'Overtally' payments - Payments are to be included in 'weekly earnings' for the purpose of assessing compensation payments
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 254, cl 7 and cl 11 of sch 1
Result:
Leave to appeal granted
Appeals dismissed
Category: B
Representation:
CACV 113 of 2008
Counsel:
Appellant: Mr M H Zilko SC
Respondent: Mr G Droppert
Solicitors:
Appellant: WHL Legal Pty Ltd
Respondent: Chapmans
CACV 112 of 2008
Counsel:
Appellant: Mr M H Zilko SC
Respondent: Mr G Droppert
Solicitors:
Appellant: WHL Legal Pty Ltd
Respondent: Chapmans
Case(s) referred to in judgment(s):
Ashfold v Metro Brick (Unreported, WASCA, Library No 990171, 8 April 1999)
WHEELER JA:
EG Green & Sons v Sabourne - CACV 113 of 2008
Application for leave
This is an application for leave to appeal from a decision of Commissioner McCann given on appeal from a decision of an arbitrator made pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). An appeal to this court lies, with leave, on a question of law (s 254). Although neither the ground of appeal, nor the somewhat unfocused written submissions, precisely identified what issue of law was said to arise, it was conceded by the respondent that an appeal would lie, subject to the question of leave. In my view, a question of law arises in this appeal, so that it is open to the court to grant leave.
Although the appellant's counsel would not have formulated the question in this way, it appears to me that the question of law which arises is whether, in a situation where a worker is remunerated under an award pursuant to a piecework system, and the award also makes provision for a minimum weekly amount payable to the worker, any remuneration in excess of that minimum falls outside the amount described as "Amount Aa" within the meaning of cl 11 of sch 1 of the Act. Underlying that issue are the questions of whether the definition of "Amount Aa" in the context of the Act, must be read as excluding every payment which is capable of being regarded as an "incentive" within the definition of "bonus or allowance" in cl 11(2), and whether cl 11 has so altered from the form it took in 1999 as to render an earlier decision of the Full Court of the Supreme Court inapplicable.
There are two applications for leave before the court, both of which raise these questions. Both involve workers in the meat industry. Although the industrial agreements in the two cases are not identical, they raise similar issues. The issues raised in both appeals are therefore likely to be of general significance in that industry. Further, it is apparent that the monetary value of the sums at stake for each of the workers in each appeal is not insignificant. In those circumstances, it is appropriate to grant leave.
Background
The respondent worker suffered a right elbow injury in February 2005, arising from his employment as a slaughterman with the appellant. He recommenced normal duties in April the following year. Following the accident, the appellant paid weekly payments of compensation at the rate of $718.50 gross per week. However, at the time of the accident, the respondent was being paid under piecework provisions contained within the relevant industrial award, and his average earnings per week on that basis were $1,335.10. The respondent applied to the directorate, seeking orders that the weekly rate of compensation be increased to $1,335.10 per week for the entirety of his period of incapacity. The appellant conceded that the appropriate rate during the first 13 weeks of incapacity was that sum. The issue was whether the rate applied after the first 13 weeks.
The difference between the two amounts was constituted by payments known as "overtally", which payments the appellant considered were an "incentive" and, thus, a "bonus or allowance" which, it was contended, therefore did not fall within Amount Aa of cl 11(2) of sch 1.
In his introduction to the facts of the case, the learned commissioner summarised the "overtally" payments as payments "which were made to the worker pursuant to the 2000 Award for exceeding his weekly production quota" (reasons [4]). However, that summary is not, as will be seen, entirely accurate. In coming to their conclusions, both the arbitrator and the commissioner appear to have proceeded on the basis that the respondent was, as a matter of fact, to be regarded as a worker remunerated on a piecework rate (reasons [30] and [68], [69], [71]). That view was correct. Even if it had not been correct, it is a finding of fact from which no appeal lies to this court. However, in order to assist in understanding these reasons, I will now describe the relevant parts of the industrial agreement which justified the characterisation of the respondent as a "pieceworker".
The industrial agreement
Part 3, which is headed "Pay rates and classification structure" provides, under item 3.1, headed "Wages", that "the weekly rate of pay for ordinary hours worked shall be the following". There then follows a table containing eight different levels of food preparation operators with appropriate pay rates opposite each level. It was not in dispute that the respondent was classified as a food preparation operator level six. Following the table, there is a heading "Body Rates". It reads: "The following body rates will apply for the calculation of overtally payments from the beginning of the first pay period commencing on or after the dates below". There then follows a table of dates, and table of occupations (boners, slicers and slaughtermen) with a dollar amount set against each occupation. This is primarily the section of the agreement upon which the appellant relies. Read in isolation, it suggests that there is a base weekly rate of pay, together with an additional amount payable for each beast slaughtered over some specified quota or tally.
However, other provisions of the agreement cast Part 3 in a different light. They include the following:
2.2.4With Respect to Piece Workers
...
c)Slaughterers shall remove skins and hides free from cuts and tears to Company standards and in accordance with AQIS requirements.
d)In the case of boners and slicers work will be performed to a Company standard in accordance with AQIS requirements.
This clause indicates that slaughterers are, or at least may be, considered to be "pieceworkers". Part 11 is headed "Piece work provisions". Clause 11.1.2 provides:
11.1.2Time For Calling Tallies
The tally for the day shall be declared by the company by 8.30 am each day or at a time to be decided by the company at the workplace after consultation with the appropriate union delegate in conjunction with the works delegate.
It is clear from this clause that the tally may vary from day‑to‑day. While the time for "declaring" the tally is a matter for mutual decision between the company and the union delegate, the tally for the day is "declared by the company". That is, it is the appellant which decides how many beasts in any given day will constitute a "tally". As will shortly appear, the reference to "overtally" payments in cl 3.1 does not refer to production exceeding this "tally".
A slaughterer's duty is to process the number of beasts declared as a "tally" for the day, as is made clear by the following clauses:
11.1.1. Hours of Work
a)Knocking and boning is to commence not earlier than 6.00 am or at another time mutually agreed by the company and the employees, and all other employees shall start and finish work progressively.
b)It is the employee's responsibility to be at his or her allotted task at the normal starting time for that task.
c)The operating speeds of the above systems shall be determined by the company after consultation and where possible agreement with the section delegate. The final determination of operating speeds of processing system including slaughter and boning chains will be the responsibility of the company. The company will set operating speeds having due consideration of the company's duty of care to the workers. If, as a result of any arrangement reached on the works and the employees perform the work required to the satisfaction of the company in accordance with the provisions of Clause 2.2 (Work to be Performed) of this Agreement, the tally for the day as declared by this company is completed in less than the ordinary hours, the piece worker shall be permitted to cease work accordingly. (emphasis in original)
What is significant about this clause is that it appears that the workers are not in fact required to work the "ordinary hours" set out in Part 3. Rather, if the tally for the day is completed in fewer than the ordinary hours, the workers are permitted to cease work. It is clear from cl 4.3 that the converse also applies; that is, if on any day the tally for the day has not been completed within eight hours, as a result of specified causes, the company may request tally workers to work on in order to complete production requirements, for up to an additional hour. "Work on" can also be invoked if the company is unable to secure sufficient piecework volunteers to facilitate the day's production requirements.
11.2. BEEF SLAUGHTERING ON RAIL
11.2.1Duties of Piece workers
[Various duties in connection with the slaughtering of cattle are specified under this heading.]
11.2.2Tallies
Piece workers will kill and treat the number of bodies per day required by the company as declared, subject to cl 11.1.2 and 4.3 [the early completion and "work on" clauses] as required by the company.
Clause 11.1.5 provides:
11.1.5Reduction in Manning Levels
a)At times of seasonal downturn manning levels shall not be altered unless production decreases to a level below double tally per team member.
The reference to "double tally" here seems to be a reference to the "tally" provided for by cl 11.3.1, which I set out below, and not to the "daily tally" in cl 11.1.2. That is, it would appear that the agreement contemplates that, as a general rule, production would be at a level of at least double 14.8 head per day.
11.3SLAUGHTERERS: PIECE WORKERS
11.3.1Beef & Calf Slaughterers:
a)Minimum daily payment for tally of up to 14.8 head is as per base rate (clause 3.1a level five) divided by five.
b)Overtally rate for production thereafter is as per body rate (clause 3.1 b) multiplied by 1.5.
Read together, it appears that the clauses referred to above have the result that, while an "ordinary" number of hours and a rate of pay for those ordinary hours is specified in the agreement, the duty of the worker is not, primarily, to work those ordinary hours, but is to kill the number of beasts specified by the daily tally (subject to the proviso that it would appear that a worker cannot be compelled to work more than one hour above "ordinary hours" on any given day). The daily tally will be a variable amount and will not necessarily bear any relationship to the figure of 14.8 set out in cl 11.3.1. Rather, that figure, together with the amount set out in cl 3, is merely a mechanism which provides for calculation of the amount payable to each employee, an amount which is based upon the number of beasts slaughtered, rather than the number of hours worked. The rate for up to 14.8 head is calculated in one way, while the rate thereafter is calculated differently. The learned commissioner found, and there is no challenge to the factual finding, that the rate of payment per head up to 14.8 was higher than the "overtally" rate; that is, the rate per beast fell after the first 14.8 head.
So far as matters such as leave are concerned, cl 6.1 provides that the "annual leave rate of wage" for an employee usually employed on a tally system is to be the average of the payments made to the employee during the period of continuous service during which that leave accrued (leaving aside provisions made for overtime and shiftwork). For the purposes of severance pay, cl 12.1 and the appendix to the agreement provide that "the definition of 'weeks pay' means the average of the payments, based on completed weeks actually worked, made to such an employee during the previous 12‑month period".
Amounts A and Aa
Clause 7 of sch 1 of the Act relevantly provides:
7.Amount of compensation in case of total or partial incapacity
(1)Subject to section 56 and subclause (3) when total incapacity for work results from the injury a weekly payment during the incapacity equal to the weekly earnings of the worker calculated and varied in accordance with this Schedule.
It is important to note that the relevant earnings are the "weekly earnings of the worker"; that is, the earnings of the individual worker who is injured. Those earnings, however, are calculated and varied in accordance with the schedule. It is accepted that the relevant provision of the schedule is cl 11. It relevantly provides:
11.Weekly earnings
(1)Subject to clauses 12 to 16, for the purposes of this Schedule weekly earnings has the meaning given by this clause.
(2)In this Schedule ‑
Amount A means the rate of weekly earnings payable, at the time of the incapacity, for the appropriate classification under the relevant industrial award, or which would have been payable if the relevant industrial award were still in operation, plus ‑
(a)any over award or service payments paid on a regular basis as part of the worker’s earnings;
(b)overtime; and
(c)any bonus or allowance;
Amount Aa means the rate of weekly earnings payable, at the time of the incapacity, for the appropriate classification under the relevant industrial award, or which would have been payable if the relevant industrial award were still in operation, plus ‑
(a)any over award or service payments paid on a regular basis as part of the worker’s earnings;
(b)any allowance paid on a regular basis as part of the worker’s earnings and related to the number or pattern of hours worked by the worker; and
(c)any other allowance prescribed by the regulations;
...
Amount D means the minimum rate of weekly earnings payable, at the time of the incapacity, for the appropriate classification under the relevant industrial award, or which would have been payable if the relevant industrial award were still in operation;
...
bonus or allowance means any bonus or incentive, shift allowance, week‑end or public holiday penalty allowance, district allowance, industry allowance, meal allowance, living allowance, clothing allowance, travelling allowance, or other allowance;
earnings includes wages, salary and other remuneration;
overtime means any payment for the hours in excess of the number of ordinary hours which constitute a week’s work.
...
(3)In the case of a worker whose earnings are prescribed by an industrial award when the injury occurs, weekly earnings are ‑
(a)for the 1st to the 13th weekly payments: Amount A but not more than Amount C [not relevant here] or less than Amount D;
(b)for weekly payments after the 13th: Amount Aa, or a lesser amount determined in accordance with the regulations, but not more than Amount C or less than Amount D.
...
(5)Subject to subclause (6) [irrelevant here]
(a)the references in the definition of Amount A in subclause (2) to overtime and any bonus or allowances; and
(b)the references in the definition of Amount Aa in subclause (2) to allowances,
are references to those items averaged over the period of 13 weeks ending at the date of incapacity.
It was accepted in the present case that the relevant amount is amount Aa. There are a number of matters to note about the definitions in respect of that amount. It refers to the "rate of weekly earnings payable", while amount D refers to the "minimum rate of weekly earnings payable". It appears that the legislature perceived a difference between the rate of weekly earnings payable under an award, and the minimum rate of weekly earnings payable. It does not therefore appear to have been the legislative intention that in determining amount Aa, it would be necessary to have regard only to the minimum amount which it would be open to a worker on any particular classification under the relevant award to earn.
There is in cl 11(5) an averaging provision which permits references to overtime, bonuses and allowances to be read as references to those items averaged over the period of 13 weeks, ending at the date of incapacity. That directs attention, neither to the minimum amount of bonus or allowance which might have been received by a hypothetical worker, nor to the maximum amount such a hypothetical worker might earn, but rather to the actual earnings of the injured worker averaged over the prescribed period. In respect of the opening four lines of the definition of Amount Aa, there is no apparent provision for averaging; rather, it appears to be assumed that it will be possible, merely by reference to the text of the relevant industrial award, to establish a "rate" of weekly earnings payable. That may not invariably be a correct assumption.
It is clear that there is or may be some overlap between the opening four lines of Amount A and the subparagraphs which follow it, between the opening words of Amount Aa and the subparagraphs which immediately follow it, and between the payments to which the three subparagraphs of Amount A apply and the differently described amounts referred to in the three subparagraphs of Amount Aa. For example, so far as Amount A is concerned, it is possible to envisage an award which requires regular service payments or overtime, and treats them as if they were part of the worker's ordinary weekly earnings. Other awards might treat payments of that kind differently, or might make no provision (so that payments of that kind would be made by agreement between worker and employer in addition to the payments required by the award). It does not appear to follow from the use of the expression "plus" in the definition of Amount A, that the legislature contemplated that the payments described in the three subparagraphs following that word would always, or necessarily, be incapable of being characterised as part of the "rate of weekly earnings payable" under the relevant award. Rather, the legislative intent seems to have been to ensure that, whether the award catered for them or not, payments of that kind continued to be made to the worker during the first 13 weeks.
It is submitted by the appellant that the definition of Amount Aa must be read as if it expressly excluded any payments which answered the description of the payments referred to in subpars (b) and (c) of Amount A. That was said to follow from the fact that the legislature had expressly included those amounts in the definition of Amount A, but had, deliberately, failed to include them in the definition of Amount Aa. In my view, that is too simplistic an analysis. It seems to me, for example, that the amount described in subpar (b) of Amount Aa is capable of including some (but not all) types of overtime payment; that is, it would include overtime which satisfied the twin conditions of being paid on a regular basis and being related either to the number or pattern (eg, regular excess hours, or regular "unsocial" hours) worked by the worker. Similarly, if one considers the expression "any bonus or allowance" (subpar (c) of Amount A), the definition of that expression in cl 11 states that it "means any bonus or incentive ... or other allowance". However, as I have noted, subpar (b) of Amount Aa expressly includes certain types of allowances. It may also be the case, although it is not necessary to determine the question for present purposes, that there will be payments which are capable both of answering the description of a "bonus or incentive" and of an "over award ... payment paid on a regular basis", which latter type of payment is included in subpar (a) of both Amount A and Amount Aa.
Because of the overlap between the various expressions used, it is not possible to read cl 11 as if the legislature had expressly excluded, from the definition of Amount Aa, every payment capable of answering the definition of any of subpars (a) to (c) of Amount A. I am fortified in that conclusion by the fact that, in a prior form, cl 11 had expressly excluded certain types of payments from the definition of "weekly earnings", including payments which were a "bonus or incentive". I set out the text of that provision shortly; for present purposes, it is enough to note that it seems to me that in moving from an express exclusion of bonuses and incentives to the present form of cl 11, the legislature may have recognised the potential for overlap in some cases, and intended to exclude bonuses and incentives only where they did not otherwise fairly fall within the definition used in the words of Amount Aa.
As I have mentioned, there are difficulties in applying the opening words of Amount A and Amount Aa in circumstances where an award specifies a rate of payment which may vary depending upon the amount produced by a worker during an ordinary working week. It may also be difficult to apply where an award specifies an hourly rate and appears to contemplate that the hours worked by a worker may vary. The appellant's submissions appear to boil down to the proposition that, in that case, one should look at what was described as "an objectively identifiable rate" being the "base rate" prescribed in the relevant award. By "base rate", the appellant meant, it appears, the minimum rate prescribed by the award as an amount below which a worker's earnings would not fall, regardless of whether the award contemplated that that would be the amount usually earned by the worker, and regardless of the worker's actual earnings.
I do not accept that submission, for a number of reasons. It sits oddly with the apparent legislative intention of cl 7, which requires payments to be made "equal to the weekly earnings of the worker". Although those earnings are to be "calculated and varied" in accordance with the remainder of the schedule, the starting‑point of the inquiry appears to be the earnings of the individual worker. The submission also seems to me to be inconsistent with the use of the expression "minimum weekly earnings" used elsewhere in cl 11, which suggests that the legislature was concerned in Amount A and Amount Aa with something closer to the actual earnings of the individual worker.
I accept that, as the appellant submits, a legislative purpose behind the difference between the definitions of Amount A and Amount Aa is that, after an initial period, a worker is to be encouraged to return to work, by the withdrawal of some types of income support. However, there are a number of other public policy considerations which it appears likely that the legislature would have taken into consideration. There is a need to balance considerations of fairness between worker and employer (or employer's insurer). It would be fair to withdraw payments which were of a "one‑off" nature (eg, an annual bonus, where a business had been particularly profitable) or an unusual incentive (eg, "salesman of the month" loading), or which related to expenses an injured worker would no longer have (eg, dry-cleaning or travel), but not those which both worker and employer contemplated would be a regular part of the worker's remuneration. These considerations appear to me to explain the references to "regular" payments in par (b) of Amount Aa. Finally, it is difficult to see what public policy could be served by any construction of the Act which discouraged employers and workers from aligning their interests in the way which is provided for by systems of remuneration such as a piecework system.
All that it a rather lengthy way of saying that it seems to me that the balancing of interests provided for in the schedule is somewhat more complex than the appellant's submissions assert, and that its construction should not be approached on the basis of one single presumed overriding legislative intention. There remains, however, the question of how the rate of "weekly earnings payable" to a pieceworker is to be determined.
Previous cl 11 and authority: Ashfold v Metro Brick (Unreported, WASCA, Library No 990171, 8 April 1999)
There is existing authority concerning the application of the predecessor of the present cl 11 to a piecework system of remuneration. That authority is Ashfold. It was not submitted that that case was wrongly decided. Rather, the appellant submitted that it was distinguishable, and that the learned commissioner should have distinguished it.
The issues in Ashfold were briefly as follows. In that case, the worker had been employed as a brick setter. The relevant industrial agreement contained provisions which apparently permitted employees employed for a full‑time 38‑hour week to have their rate of pay calculated at either piecework rates or time rates. Time rates were based on an hourly rate for a 38‑hour week, while piecework rates were based on a rate for every 1,000 bricks set. In that case, the employer had submitted that the correct way of calculating the appropriate amount for the purposes of cl 11, as it then stood, was by reference to the time rate, notwithstanding that the worker had, in fact, been paid at piecework rates, and had been earning significantly in excess of the amount calculated on a time rate basis. It appears from page 8 of the reasons of Owen J, with whom Pidgeon and Ipp JJ agreed, that the argument in that case was similar to the appellant's submissions in the present case. His Honour said:
It is the respondent's contention that where an award provides a set formula or definition for what constitutes a week's work this formula is to apply regardless of whether the worker is working under the time rate or piecework rate method of calculation. In any event the respondent contends that calculations of pay at the piecework rate operated akin to a bonus system, that is, a performance incentive under the Award and as such were excluded under cl 11 from a calculation of "weekly earnings".
Owen J then relevantly held:
In my opinion the plain and ordinary meaning of the words used in cls 7 and 11 are that a worker's "weekly earnings" will be the amount the worker was actually earning under the Award at the time of the injury, less those payments specifically excluded. It seems to me that in this case, unless the Award or Agreement expressly provide otherwise, the appellant's "weekly earnings" should be calculated at piecework rates as this rate properly reflects what the worker was actually earning under the Award at the time of the disability. (13)
His Honour considered provisions of the award in that case which had the effect that if, at the completion of a week's work, a worker had not been able to set enough bricks to achieve an entitlement in excess of the amount which was equal to the hourly time rate multiplied by 38 hours, then the worker would be entitled to receive an amount equal to the time rate for a week's work. His Honour said:
I do not accept the respondent's contention that [this item of the award] means that a worker's wages for a week's work are essentially based on the time rate and that the piecework rate system acts akin to a bonus or incentive scheme. The Award clearly contemplates the piecework rate as an alternative method of calculating wages for a week's work. It does not operate as a bonus scheme nor is it an over award payment. It is simply another way in which a worker's weekly wages can be calculated under the Award. (14)
His Honour also noted:
In my view, in the absence of express terms, it would be outside the spirit of the Act to determine the appellant's compensation payments by reference to a calculation of earnings based on time rates. In this case the time rate bears no resemblance to what the appellant was actually earning each week and it bears no resemblance to the way in which what he actually earned was calculated. To determine compensation payments with reference to the time rate would unfairly prejudice the appellant as such a calculation would result in him receiving significantly less than what he actually earned under the Award prior to suffering the disability. I do not believe that such a result was intended by the legislature and that the Act should be construed accordingly. (16)
...
The mere fact that there is no set formula or ready definition under the Award does not mean that a worker’s "weekly earnings" cannot be calculated for the purpose of cl 11. "Weekly earnings" can be readily calculated by averaging a particular worker's actual weekly earnings at piecework rates over a period of time and arriving at an average weekly figure. This approach to calculating earnings is an accepted and common practice in situations where wages are calculated on some other basis than time. The result or outcome of an averaging approach would provide the worker with a weekly compensation payment, which closely resembles his actual weekly earnings prior to the injury. In the case of a piecework rate worker averaging seems to me to be a far better and more accurate way to compensate the worker than adopting the time rate approach. In addition this approach better reflects the overall purpose and policy of the Act. (17)
Assuming for present purposes that this case should be applied to the circumstances in issue before us, the result would be that, where an award provides for payment on a piecework system, as does the award in issue here, then weekly earnings for the purposes of cl 11 (Amount A, and Amount Aa) are to be calculated by averaging the particular worker's actual weekly earnings at piecework rates over a period of time so as to arrive at an average weekly figure. The question of what is an appropriate and representative period of time would be a matter for evaluation in each case, and potentially a matter for evidence directed to demonstrating why a particular period should or should not be regarded as representative.
The reason it is suggested by the appellant that Ashfold should not be applied to the present case is that the definition of "weekly earnings" has changed since that case was decided. At the time, cl 11 relevantly read as follows:
11.Weekly earnings
Subject to clauses 11A, 12, 13, 14, 15, and 16, for the purposes of this Act 'weekly earning' means ‑
(1)where the work performed by the worker in the employment in which the disability occurs is, at the time the disability occurs, subject to an industrial award or industrial agreement or, if it is not so subject but there is an industrial award or industrial agreement which applies to work of the same type or which can be fairly applied to the work, the total wages, salary or other remuneration payable, or which would have been payable if the industrial award or industrial agreement to which the work was subject at the time the disability occurred were still in operation, at the time of the incapacity, for a week's work in such employment, under the industrial award or industrial agreement plus any over award or service payment payable on a regular basis as part of the worker's wages, salary or other remuneration;
...
but excluding in each case referred to in subclauses (1) and (2) ‑
(3)overtime, being any payment for the hours in excess of the number of hours stated in the industrial award or industrial agreement as ordinary hours which constitute a week's work;
and
(4)any bonus or incentive, shift allowance, week‑end or public holiday penalty allowance, district allowance, industry allowance, meal allowance, living allowance, clothing allowance, travelling allowance, or other allowance,
and where the work performed by the worker in the employment in which the disability occurs is such that neither subclause (1) or (2) applies, the weekly earnings of the worker means ‑
(5)the normal wage, salary, or other remuneration calculated on a weekly basis payable to the worker under his contract of employment exclusive of payment for overtime or for the items referred to in subclause (4).
In my view, the differences between cl 11 as it then stood, and as it presently stands are not material for the purposes of the present case. The appellant submits that there is a significant difference between the expression "the total wages, salary or other remuneration payable ... " and the expression in the present cl 11 of the "rate of weekly earnings payable". I accept that there is a difference between the words in the expression "total" and "rate of". However, when one looks at the composite expression, the prior cl 11 was concerned with the amount payable for a week's work; that is, not with the amount actually received by a particular worker, but with the amount which the award prescribed as the total payable for a week's work. It does not seem to me that there is any relevant difference between the meaning of that expression and the expression "the rate of weekly wages payable". The latter expression also directs attention to the amount which the award prescribes as the amount payable for a week's work. To the extent that there is a difference between the two clauses, there is some shift, as I have noted, in favour of a worker, in that the previous cl 11 expressly excluded from its terms bonuses or incentives, whereas in the present Amount Aa, there is merely an omission of bonuses and incentives, so that it is at least possible that an amount which might be considered to be an incentive would, nevertheless, be payable if it could be brought within either the opening four lines of the definition of Amount Aa, or any of the three subpars (a) to (c).
In my opinion, this court should depart from applying Ashfold's case only if it is persuaded either that that case was wrongly decided (which neither party suggested), or if there is some material difference between cl 11 as it stood in 1998, and Amount Aa, as it is presently defined (which, in my opinion, there is not).
I would grant leave, but would dismiss the appeal.
Harvey Industries Group Pty Ltd v McKenzie‑Clark - CACV 112 of 2008
The underlying facts in this matter are relevantly identical to those in EG Green & Sons v Sabourne. In this case, too, the respondent was injured in the course of his employment as a slaughterman at an abattoir.
The question in issue was the rate of compensation subsequent to the first 13 weeks of incapacity, which, of course, fell to be determined pursuant to cl 11 of the schedule to the Act, pursuant to the definition of "Amount Aa". In this case, too, the learned commissioner considered that the worker was remunerated at piecework rates, and applied this court's decision in Ashfold (reasons [60]).
There is no relevant difference between the two industrial agreements, although the agreement in this case is drafted less clearly than that in EG Green. However, there is in this agreement also a provision which appears to prescribe a weekly rate for ordinary hours with "overtally" payments (Part 3); there is no specific provision for a daily tally to be declared, but cl 11.2.2 requires workers to process the number of bodies "required by the company as declared"; workers who complete that task in fewer than the ordinary hours may then cease work; there are references to workers such as the respondent as "piece workers". As in EG Green, the references to "overtally", properly understood, are no more than a method of calculating the rate of pay for workers who are paid on a piecework rate.
In this case, too, I would grant leave, but dismiss the appeal.
BUSS JA: I agree with Wheeler JA.
NEWNES JA: I agree with Wheeler JA.
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