Evans v Shaw t/as Sparkles Kar Shower
[2022] NSWPIC 740
•22 December 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Evans v Shaw t/as Sparkles Kar Shower [2022] NSWPIC 740 |
| APPLICANT: | Tracy Evans |
| RESPONDENT: | David Shaw t/as Sparkles Kar Shower |
| Member: | Paul Sweeney |
| DATE OF DECISION: | 22 December 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Dispute as to applicant’s pre-injury average weekly earnings (PIAWE) determined by reference to the definition in the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (2010 Award); Held – the applicant’s PIAWE at the time of injury on 8 December 2016 are to be calculated at the rate of $18.21 per hour in accordance with a Level 2 Classification under the 2010 Award. |
| determinations made: | 1. The applicant’s pre-injury average weekly earnings at the time of injury on 8 December 2016 are to be calculated at the rate of $18.21 per hour in accordance with a Level 2 Classification under the Vehicle Manufacturing, Repair, Services and Retail Award 2010. |
STATEMENT OF REASONS
BACKGROUND
Tracy Evans (the applicant) was formerly employed by David Ross Shaw (the respondent) as a car wash attendant. She was concurrently employed on a part-time basis by the Heart Research Institute.
On 8 December 2016, the applicant suffered a severe injury to her back in the course of employment. As a result of the injury, she has been unable to return to her pre-injury employment. She has retrained as a childcare worker and is currently in full-time employment in that occupation.
The respondent’s workers compensation insurer accepted liability for the applicant’s injury and paid her weekly compensation during her incapacity for work. However, a dispute has arisen as to the applicant’s pre-injury average weekly earnings (PIAWE) with the respondent at the time of the injury.
PROCEDURE BEFORE THE COMMISSION
By these proceedings, the applicant claims weekly compensation for the period
8 December 2016 to 31 March 2020. She alleges that her PIAWE at the date of injury should be determined by reference to the Level 2 Classification under the Vehicle Manufacturing Repair, Services and Retail Award (the award).The respondent also accepts that the applicant’s PIAWE should be determined in accordance with the award. However, it maintains that it should be calculated in accordance with the definition for a Level I Classification.
When the matter came on for a preliminary conference in the Commission on
10 November 2022, Mr Mantach, solicitor, represented the applicant and Mr Bennett represented the respondent. I was informed by the parties that the only issue remaining in dispute was the quantum of the applicant’s PIAWE.As agreement could not be reached on this issue during the preliminary conference, I directed the parties to lodge written submissions addressing this issue. The submissions have now been received by the Commission.
I have used my best endeavours in attempting to bring the parties to the dispute to a settlement all. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and the attached documents.
Submissions
The submissions of the parties are in writing and I do not propose to reiterate each of the arguments raised in these short reasons. I will, however, address the thrust of each party’s case in resolving the issues in dispute. First, however, I briefly record aspects of the evidence of the applicant. What follows is not intended to be a comprehensive survey of her evidence. Rather, I set out the salient points so that the parties may understand the manner in which the Commission has resolve the dispute.
Applicant
By a signed statement dated 16 January 2022, the applicant sets out the circumstances of injury and the treatment she has been afforded to the present time. She states that she has retrained as a child worker and is currently in full-time employment in that field.
By a further statement of 7 September 2022, the applicant annexes a hand written statement summarising the duties. She states that she was a “solo worker”, who after initial training received additional training in to the running and maintenance of the “complex machinery and equipment” at the car wash. She continues:
“I was also required at times to rebuild cat pump that were responsible for running the high pressure hoses in the wash bays, doing all minor and major repairs, handling cash, doing stocktake on a regular basis, documenting all repairs and services in appropriate books. I was also at times required to use tools such as drills and angle grinders and other hand tools and I dealt with the public on a daily basis helping them operate wash bays, enquiries and problems that arose. I had extensive knowledge of what the business offered and most of the time I was able to confidently fix any problems or issues which occurred, if I couldn’t the owner would come down and I would assist in the fixing of the problem.”
By an earlier statement dated 30 December 2016 which was obtained by an investigator on behalf of the respondent, the applicant stated that her duties were to complete the tasks “listed on the whiteboards in the office, on the scheduled program”. She continued:
“I normally follow set routine in my duties stop when I come in the first thing I do is clean up the rubbish on site. I will then go through and lift the grates in the wash bays each day shuttle to clean out trays under the grates. Then shovel the debris into a wheelbarrow and really down to a pit at the end of the site and tip the debris into the pit out of the barrow.
Then I has all of the bay floor down and clean them off.”
The applicant states she would then attend to cleaning and washing the vacuum bags, attending to the vending machines, and cleaning out the oil separator. She says that she also attended to customer service as required. She states that she has not had any “further specialised training/education for this position”. However she has been provided with the on the job training. She continues:
“When I commenced here I had a short instruction in the basic day-to-day tasks, and as breakdown occurred or problems arose I would contact them and they would come over and show me what to do.”
The applicant states that if any issues arise on site she would try and ring Karen Johnston and if she was not there she would ring Andrew Johnston. She received some assistance in performing the heaviest work at the car wash from David Keating. She received assistance from Andrew Johnston with aspects of the maintenance work that she was unable to perform herself.
FINDINGS AND REASONS
The skill level definition of a Level 1 employee under the award is as follows:
“Vehicle Industry R S &R employee-Level 1 R1 (entry) definition
An employee at Level I is an employee who has undertaken little or no formal or informal training. A Level 1 employee may be undertaking up to 38 hours of induction training. The induction training may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, plant layout, work and documentation procedures, occupational health and safety, equal employment opportunity and quality control/assurance.
An employee at this level would acquire/possess skills relevant to the performance of routine duties essentially of a manual nature and to the level of their training:
• performs general labouring and/or cleaning duties;
• has basic numeracy skills;
• exercises minimal judgment;
• works to defined procedures and under direct supervision; and
• maybe undertaking structured training so as to enable the employee to progress to a higher level.”
The skill level definition of a Level 2 employee under the award is as follows:
“Vehicle industry RS& R employee-Level 2 R2
An employee at Level 2 is an employee who has completed up to three months structured training to enable an employee to attain/possess job skills relevant to tasks performed at this level and to the level of their training:
• works under direct supervision either individually or in a team environment;
• has some oral and written communication skills;
• can distinguish where a minor fault/error is made and undertake basic quality control of own work;
• is responsible for the quality of own work subject to routine supervision;
• has some input to job planning;
• can work from simple instructions;
• has some basic customer service skills;
• performs basic maintenance tasks;
• has basic knowledge of the range of services offered by the business;
• has simple numerical equipment skills; and
• may use selected hand tools.”
The award specifically states that the occupations of car cleaner/washer or a car polisher or detailer, and driveway attendant fall within Level I.
In an Icare calculation sheet on 20 December 2016, the respondent through Ms Johnston stated that the applicant’s hourly rate was $16.87 and her PIAWE $516.22. This figure is inconsistent with either Level I or Level 2 payments under the award. In that document, the employer does not attempt to justify the payment by reference to the award or the nature of the duties performed by the applicant.
By his submissions, Mr Bennett canvased the above evidence. He submits that the Deed of Settlement dated 21 April 2021 resolving the dispute between the parties in the Federal Circuit Court does not assist in determining the applicant’s PIAWE. There is no “context” to enable the reader to understand what the payment of the respondent was required to pay the worker represents. I accept that submission.
Mr Bennett submits that the applicant’s description of her duties in the annexure to her a statement of 7 September 2022 is subjective and without corroboration He continues:
“by the nature of the work described by the applicant it does appear the extent of these duties would clearly be construed to reflect duties of a level I employee as referred to above.”
I do not accept that submission. The work performed by the applicant as described in her handwritten annexure to her statement of 7 September 2022 is categorically different from that of a car cleaner/polisher/ detailer and to the work of a driveway attendant. The work which she describes is more complex and more varied. I would infer that for extended periods she performed all of the functions of the business alone. That involved performing and documenting minor repairs of the equipment and performing stocktake work.
While Mr Bennett criticised this evidence as self-serving, it was as always open to the respondent to adduce written evidence to the contrary. It did not do so. In my opinion, there is nothing in the applicant’s written evidence which suggests exaggeration. It is true that the evidence closely resembles the language of the skill level definition under the award. But there is nothing sinister in a party providing evidence that specifically addresses a definition.
Conversely, there is force in Mr Mantach’s submission that the Level I definition contemplates an entry level employee who works under “direct supervision” and exercises “minimal judgement”. Neither phrase would form part of a description of the work that the applicant was employed to perform. Equally, I accept his submission that the duties at the automated car wash were well beyond the scope of a Level I employee.
The only doubt that arises in my opinion is whether the applicant has undergone sufficient “structured training” to bring herself within the definition of a Level 2 employee. I note, however, that while the definition contemplates the completion of “up to 3 months structured training”, it does not impose a minimum period.
For these short reasons, I propose to find that the applicant’s PIAWE at the date of injury should be calculated at the rate of $18.21 per hour in accordance with the definition of a Level 2 employee under the award.
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