Federal Fire Fighters Union v Minister of State for the Capital Territory

[1982] FCA 148

Re: THE FEDERAL FIREFIGHTERS' UNION
And: THE MINISTER OF STATE FOR THE CAPITAL TERRITORY (1982) 62 FLR 341
A.C.T. No. 1 of 1982
Industrial Law - Conciliation and Arbitration
3 IR 236

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY REGISTRY
INDUSTRIAL DIVISION
Evatt(1), Northrop(1) and Fitzgerald(2) JJ.

CATCHWORDS

Industrial Law - Conciliation and Arbitration - Application for an interpretation of an award - Fire Brigade Employees (A.C.T.) Award 1975 : Clause 23 - sick leave - "make-up pay" - whether inconsistent with the Compensation (Commonwealth Government Employees Act - whether invalid under the Conciliation and Arbitration Act - meaning to be given to words "Provided that -".

Compensation (Commonwealth Government Employees) Act 1971 ss.5, 27, 29, 32, 45, 46, 52, 103.

Conciliation and Arbitration Act 1904 ss.41A, 58, 59, 62, 118C.

Fire Brigade (Administration) Ordinance 1974 (A.C.T.) s.31.

Conciliation and Arbitration - Federal award - Sick leave clause - Interpretation - Provision for additional make-up pay - Whether entitlements of employees continued after expiration of award - Whether clause inconsistent with Compensation (Commonwealth Government Employees) Act 1971 - Conciliation and Arbitration Act 1904 (Cth), ss. 41A 58, 59, 62, 110 - Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss. 5, 27, 29, 32, 45, 46, 52, 103.

HEADNOTE

Clause 23(a) and (f) of the Fire Brigade Employees (A.C.T.) Award 1975 (the award) was in the following terms: "23. SICK LEAVE - (a) An employee who is absent from his work on account of personal illness or injury sustained while off duty shall be entitled to leave of absence on full pay up to the limit of his sick leave credit subject to the following conditions and provisions of this clause. . . . (f) When the incapacity is due to a cause which would entitle an employee to workers' compensation the employer shall pay the difference between the amount of the workers' compensation and full pay. The employee's entitlement to sick leave arising from ordinary illness shall not be affected by the provisions of this sub-clause."

Upon an application pursuant to s. 110 of the Conciliation and Arbitration Act 1904 for an interpretation of cl. 23(f).

Held: (1) Per curiam - Clause 23(f) is not concerned with sick leave credits and is limited in its application to cases where the employee is not entitled to sick leave credits under cl. 23(a). The word "incapacity" means inability to attend work for duty on account of personal illness due to a cause which imposes on the employer a liability to pay compensation to the employee under the Compensation (Commonwealth Government Employees) Act 1971. An employee who comes within cl. 23(f) is entitled to the make-up pay provided for therein irrespective of the duration of his incapacity.

Per Fitzgerald J. - The first sentence of cl. 23(f) is not a qualification or limitation of cl. 23(a) but a provision providing for additional or make-up pay when an employee is unable to attend work by reason of an injury entitling him to compensation.

(2) Per Evatt and Northrop JJ. - Clause 23(f) was not invalid for giving an employee an entitlement to payments for a period subsequent to the expiration of the award as it had no effect as to future credits or payments once an employee ceased to be employed under the terms of the award.

R. v. Hamilton Knight; Ex parte Commonwealth Steamship Owners' Association (1952) 86 CLR 283 referred to.

(3) Per Evatt and Northrop JJ. - Clause 23(f) was not inconsistent with any provision of the Compensation (Commonwealth Government Employees) Act 1971 and thus did not breach s. 41A of the Conciliation and Arbitration Act 1904.

Per Fitzgerald J. - The Compensation (Commonwealth Government Employees) Act 1971 did not constitute an exhaustive statement of the rights of an employee injured in circumstances giving rise to an entitlement to statutory compensation or of the liabilities of the employer.

HEARING

Canberra, 1982, March 29-30; July 15. #DATE 15:7:1982

INTERPRETATION OF AWARD.

A registered organization sought an interpretation of cl. 23(f) of the Fire Brigade Employees (A.C.T.) Award 1975.

M.H. McHugh Q.C. and M. Turnbull, for the applicant.

C.N. Jessup, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Pamela Coward & Associates.

Solicitors for the respondent: B.J. O'Donovan, Commonwealth Crown Solicitor.

T.J. GINNANE

ORDER

On the true interpretation of clause 23 sub-clause (f), Sick Leave, of the Fire Brigade Employees (A.C.T.) Award 1975 the Employer is required to pay to the employee to whom the provisions of the sub-clause apply the difference between the employee's full pay and his workers' compensation payments irrespective of the duration of his incapacity.

JUDGE1

The Federal Firefighters Union, hereinafter called "the Union", is an organization of employees under the Conciliation and Arbitration Act 1904, as amended, and in essence has firefighters as its members. The Fire Brigade Employees (A.C.T.) Award 1975, hereinafter called "the Award", was made by the Conciliation and Arbitration Commission on 15 September 1975. The Award is binding upon the Union and its members and the Minister of State for the Capital Territory, hereinafter called "the Employer" who is the nominal employer of the firefighters, clause 3 of the Award. The Award came into operation in April 1975 and was expressed to remain in force for a period of 12 months, clause 4 of the Award. Since that date the Award has continued in force, s.58 Conciliation and Arbitration Act. Since April 1975 a number of the terms of the Award have been varied, s.59 of the Conciliation and Arbitration Act, but for present purposes, none of those variations is relevant.

A difference of opinion has arisen between the Union and the Employer concerning the correct interpretation of clause 23 of the Award. The clause is one of a number of clauses of the Award making provision for leave of various kinds. Clause 23 is headed "Sick Leave" and is set out in full:

" 23 - SICK LEAVE

(a) An employee who is absent from his work on account of personal illness or injury sustained while off duty shall be entitled to leave of absence on full pay up to the limit of his sick leave credit subject to the following conditions and provisions of this clause:

(i) He shall as soon as practicable inform the officer in charge of the station to which he is attached or is due to report for duty of his inability to attend for duty.

(ii) He shall forward to the station to which he is attached a medical certificate which shall state the estimated duration of his illness or injury.

(iii) If so required he shall submit to examination by the Government Medical Officer.
(b) An employee shall be credited with sick leave on full pay as follows:

On date of appointment . . . . . . . . . 144 hours
On completion of 12 months
service . . . . . . . . . . . . . . . . . . . . . . . 144 hours
On completion of each additional
12 months service . . . . . . . . . . . . . 144 hours

Provided that:

(c) The term full pay, for the purposes of this clause, shall mean the amount that an employee would have normally earned, including rostered average overtime, had he been on duty.

(d) The maximum period allowable with pay in respect of any continuous absence through illness shall be 52 weeks.

(e) Where payment has been made for sick leave under this clause to an employee whose sick leave entitlement previously had been exhausted or whose sick leave has not been established the employer may deduct the amount overpaid from the salary of the employee concerned on the following week's pay.

(f) When the incapacity is due to a cause which would entitle an employee to workers' compensation the employer shall pay the difference between the amount of the workers' compensation payment and full pay. The employee's entitlement to sick leave arising from ordinary illness shall not be affected by the provisions of this sub-clause.

(g) The employee shall prove to the satisfaction of the employer or, in the event of a dispute, to the satisfaction of the Commission that he was unable, on account of such illness or incapacity, to attend for duty on the day or days for which sick leave is claimed. Payment may not be made for sick leave until this condition is fulfilled. Any medical certificate tendered in support of a claim shall state that the employee was prevented by such illness or incapacity from attending for duty on the day or days for which sick leave is claimed.
(h) Each year an employee shall be allowed four days sick leave without being required to produce a medical certificate. This entitlement shall not be cumulative.

(i) Where an employee who is eligible for sick leave produces a medical certificate to the effect that he has been incapacitated for a period of:

(i) one day or more whilst on recreation leave, or

(ii) one day or more whilst on long service leave

the employer shall recredit the employee with an equivalent period of recreation or long service leave as the case may be."

The Union has made application under s.110 Conciliation and Arbitration Act seeking an interpretation of sub-clause (f) of clause 23. Pursuant to s.118C of the Act a single Judge of this Court ordered that the application be heard and determined by a Full Court. The interpretation sought by the Union is in the following terms:

"That on the true interpretation of clause 23 subclause (f), Sick Leave, of the Fire Brigade Employees (A.C.T.) Award 1975 the employer is required to pay to the employee to whom the provisions of the subclause apply the difference between the employee's full pay and his workers compensation payments irrespective of the duration of his incapacity."

Counsel for the Employer disputed that interpretation. In addition, he made further submissions to the effect that if that was the correct interpretation then the clause was void and of no effect. Those submissions will be considered later.

Before turning to consider the interpretation of the clause in question, one matter of fact must be stated. The provisions of the Compensation (Commonwealth Government Employees) Act 1971, hereinafter called "the Compensation Act", apply to persons employed under the Award. Under that Act the Employer is liable to pay compensation to an employee where personal injury arising out of or in the course of the employment of that employee by the Employer is caused to that employee, s.27. Under that Act, the word "injury" is defined as not including a disease, s.5, but under s.29 the contraction of a disease is, in the circumstances therein specified, deemed to be a personal injury to the employee arising out of the employment of the employee by the Employer. See also the definitions of "disease", and "injury" in s.5(1) of the Act. Reference is made also to s.5(6) and s.5(11) of that Act.

The wording of clause 23 is inelegant and words are used with an apparent reckless disregard for consistency. The clause must be construed in the same way as any other written document but in the context that the clause is related to industrial relations and forms part of a document which imposes duties and obligations and confers rights and privileges on the Employer and on the Union and its members.

In support of his contentions, counsel for the Union tendered and sought to rely upon material from which the Award is derived as well as the logs of claim on which the Award is based. He contended that that material formed a matrix of facts by which the Award should be construed. He relied upon the opinion expressed by Lord Wilberforce in Prenn v. Simmonds (1971) 3 All E.R. 237 at pp.239-241. The material was of interest but not of assistance in considering clause 23 of the Award. The material itself used words and expressions which were unclear and confused. In reality the material was unhelpful. In this respect, it is important to note that Lord Wilberforce said at p.240:

"There were prolonged negotiations between solicitors, with exchanges of draft clauses, ultimately emerging in cl 2 of the agreement. The reason for not admitting evidence of these exchanges is not a technical one or even mainly one of convenience (although the attempt to admit it did greatly prolong the case and add to its expense). It is simply that such evidence is unhelpful. By the nature of things, where negotiations are difficult, the parties' positions, with each passing letter, are changing and until the final agreement, although converging, still divergent. It is only the final document which records a consensus. If the previous documents use different expressions, how does construction of those expressions, itself a doubtful process, help on the construction of the contractual words? If the same expressions are used, nothing is gained by looking back; indeed, something may be lost since the relevant surrounding circumstances may be different. And at this stage there is no consensus of the parties to appeal to."

An illustration of the inelegant phraseology of clause 23 is given by the use of the words "Provided that:". Normally those words are used to introduce a proviso which limits or qualifies the substantive provisions of the paragraph to which the words are appended. In the present case, it is difficult to decide what is the paragraph to which the words are appended. Likewise, it is difficult to see how those words limit or qualify any paragraph. In appropriate cases a proviso may have a wider effect, see for example Commissioner of Stamp Duties v. Atwill (1973) A.C. 558 in which Viscount Dilhorne in delivering the opinion of the Privy Council, and after referring to the nature of a true proviso as limiting or qualifying what preceded it, said at p.561:

"While in many cases that is the function of a proviso, it is the substance and content of the enactment, not its form, which has to be considered, and that which is expressed to be a proviso may itself add to and not merely limit or qualify that which precedes it."

In the present case, clause 23 of the Award comprises nine sub-clauses identified by the letters (a) to (i) inclusive. Sub-clause (a) confers an entitlement on employees "subject to the following conditions and provisions of this clause". Those conditions and provisions are then set out in a number of the nine sub-clauses. The words "Provided that:" appear to separate sub-clauses (b) and (c). On its face sub-clause (b) confers on an employee entitled to sick leave a credit on "full pay" for defined periods. Sub-clause (c) defines the meaning to be given to the term "full pay" for the purposes of clause 23. Where that term is used in sub-clauses (a), (b) and (f) it must have the same meaning as determining the amount of pay to which an employee is entitled. Sub-clause (d) prescribes the period during which payment for sick leave is to be paid and in this respect the use of the word "pay" is appropriate. In all the circumstances, the words "Provided that:" cannot be given any meaning. They do not limit or qualify sub-clause (b). The sub-clauses each have operation in their own right and this is made clear from the words "subject to the following conditions and provisions of this clause" appearing in sub-clause (a). The words "Provided that:" are mere surplusage and are to be ignored.

For the purposes of the interpretation, the crucial sub-clauses are (a), (d) and (f) but it is helpful to summarize each of the nine sub-clauses. Sub-clause (a) confers an entitlement to leave of absence on full pay when an employee "is absent from his work on account of personal illness or injury sustained while off duty". Sub-clause (b) prescribes the periods of entitlement to sick leave credits. Sub-clause (c) defines the meaning of the term "full pay". Sub-clause (d) limits the period of entitlement "in respect of any continuous absence through illness". Sub-clause (e) confers a privilege on the Employer to deduct amounts from subsequent payments of salary to an employee. Sub-clause (f) imposes an additional and separate duty on the Employer with a corresponding entitlement being conferred upon an employee. Sub-clause (g) imposes conditions to be complied with by an employee seeking an entitlement to sick leave, while sub-clauses (h) and (i) confer certain privileges on employees.

As has been said, sub-clause (a) confers an entitlement on an employee for what is called "sick leave". In reality, the entitlement is to payment of full pay for a period up to the limit of sick leave credits where an employee is absent from duty "on account of personal illness or injury sustained while off duty". Difficulties arise in construing those words which constitute the condition precedent to the entitlement to payment. Reference has been made to some of the provisions contained in the Compensation Act. Under those provisions, the Employer is liable to pay the compensation specified where personal injury arising out of or in the course of the employment of the employee by the Employer is caused to the employee, s.27. In some instances a disease is deemed to be personal injury, s.29, while in other instances a journey to or from employment is deemed to be part of the employment of the employee by the Employer. s.32. The nature of the compensation to be paid is specified in other sections of the Act.

The word "illness" has no defined meaning in the Compensation Act but is used in some of the sections. The word "illness" is not synonymous with the word "disease". An illness may result from an injury. In its primary meaning the word "illness" refers to a "bad moral quality; badness". It also has a meaning of a "bad or unhealthy condition of the body" or "the condition of being ill, disease, ailment, sickness". The relevant meaning of the word "ill" is "unsound, disordered. Hence, of persons, etc. Out of health, not well . . .", see Shorter Oxford Dictionary.

Apart from the privilege conferred by sub-clause (h), before an employee is entitled to receive payments for sick leave he must prove to the satisfaction of the Employer, normally by means of a medical certificate, that he is unable, by reason of his illness, to attend work for duty, sub-clause (g). The illness must be personal to the employee, Clause 24 Compassionate Leave, is a clause of the Award conferring an entitlement to leave without deduction of pay to an employee by reason of the serious illness of specified relatives. In sub-clause (a) the words "personal illness" appear to be sufficiently wide to entitle an employee to payment for sick leave irrespective of how the illness was contracted and irrespective of whether it was caused by injury or not. Essentially the word "injury" means a wrong or damage to a man's person or goods. It means a hurt or loss caused to or sustained by a person or thing and an injury to a person may result in the illness of that person. In sub-clause (a), the words "personal illness or injury sustained while off duty" refer to personal illness including illness resulting from a prescribed type of injury, namely an "injury sustained while off duty". This is an inelegant expression excluding from the words "personal illness" those illnesses which result from personal injury arising out of or in the course of employment. Included among those injuries so excluded are diseases within s.29 of the Compensation Act and journey injuries within s.32 of that Act. Accordingly, in our opinion, sub-clause (a) confers on an employee an entitlement to sick leave credits where the personal illness does not impose on the Employer a liability to pay compensation to that employee under the Compensation Act. This construction is supported by the presence of sub-clause (f) and the express provisions of the Compensation Act referred to later in these reasons.

When s.27 of the Compensation Act imposes a liability on the Employer to pay compensation under that Act, the nature and amount of compensation to be paid to the employee is prescribed by the Act. Where the injury to the employee results in the employee being totally incapacitated for work, s.45 prescribes the amount of compensation by way of weekly payments to be paid to the employee. Further reference will be made to this section later in these reasons. Where the injury to the employee results in the employee being partially incapacitated for work, s.46 prescribes the amount of compensation by way of weekly payments to be paid to the employee. Other sections make provision for the payments of other forms of compensation, but those forms of compensation are not relevant to the present problem.

Sub-clause (f) imposes an obligation on the Employer different in kind from the obligation imposed by sub-clause (a). Sub-clause (f) is limited in its application to cases where the employee is not entitled to sick leave credits under sub-clause (a). In sub-clause (f) the word "incapacity" is used loosely. In sub-clause (g) the relevant phrase to describe the inability of an employee to attend work for duty is "on account of such illness or incapacity". In sub-clause (f) the word "incapacity" is used in the sense of meaning inability to attend work for duty on account of personal illness due to a cause which imposes on the Employer a liability to pay compensation to the employee under the Compensation Act. The word is used in contradistinction to incapacity as meaning inability to attend work for duty on account of personal illness not due to a cause which imposes on the Employer a liability to pay compensation to the employee under the Compensation Act. In the latter case, the employee is entitled to sick leave credits under sub-clause (a). The number of days credited are calculated in accordance with sub-clause (b) and a limitation on the total number of credits is prescribed by sub-clause (d). In the former case, sick leave credits are not conferred upon the employee.

Sub-clause (f) is not concerned with sick leave credits. It imposes on the Employer an obligation to pay the difference between the amounts of compensation payable to the employee under the Compensation Act and the amount of the employee's full pay as determined in accordance with sub-clause (c). The final sentence of sub-clause (f) makes it clear that the obligation imposed upon the Employer by that sub-clause does not affect the number of days of credit for sick leave conferred upon an employee by reason of ordinary illness, being an illness which does not impose upon the Employer a liability to pay compensation to the employee under the Compensation Act.

In the result, under the Award, an employee who is unable to attend work for duty by reason of illness which imposes upon the Employer a liability to pay compensation by way of weekly payments under the Compensation Act is not entitled to sick leave credits under sub-clause (a). Under sub-clause (f) he is entitled to what was described during the hearing as "make-up pay". Where an employee is entitled to make-up pay the limitation imposed by sub-clause (d) has no application. That sub-clause is limited in its application to ordinary illnesses within sub-clause (a) giving rise to an entitlement to sick leave credits. Accordingly, subject to the consideration of the further submissions made on behalf of the Employer, clause 23(f) of the Award is to be interpreted in the manner contended for by the Union.

In addition to disputing the interpretation sought by the Union, counsel for the Employer submitted that sub-clause (f) was invalid on one or both of two grounds, namely:

(i) that it was inconsistent with the Compensation Act and thus rendered invalid by s.41A of the Conciliation and Arbitration Act; and

(ii) that it purported to vest an entitlement of payments to an employee in relation to a period occurring subsequent to the expiration of the Award.

On the second ground, counsel relied upon s.58 of the Conciliation and Arbitration Act and opinions expressed in R. v. Hamilton Knight; Ex parte The Commonwealth Steamship Owners' Association (1952) 86 C.L.R. 283.

The second ground can be disposed of quickly. The entitlement to payment under sub-clause (f) continues only so long as the employee remains in the employment of the Employer. In this regard the entitlement is no different to any of the other entitlements or for that matter duties and obligations imposed on and rights and privileges conferred by the Award on the Employer and the Union and its members. Those duties, obligations, rights and privileges continue by operation of s.58 of the Conciliation and Arbitration Act until varied under s.59 or the Award is suspended or cancelled under s.62. The Employer has the power to terminate the employment of an employee on the ground of invalidity, see s.31 Fire Brigade (Administration) Ordinance 1974 (A.C.T.). Clause 23 of the Award, and in particular sub-clause (f), can have no effect as to future credits or payments once an employee ceases to be employed under the terms of the Award. It follows, therefore, that the particular problems relating to rights and duties continuing after an employment has ceased, which were discussed in the Hamilton Knight case, do not arise in the present case. Sub-clause (f) is not invalid on the second ground relied upon by the Employer.

Section 41A Conciliation and Arbitration Act prescribes the powers of the Conciliation and Arbitration Commission in making awards in relation to industrial matters affecting employees of the Commonwealth including members of the Union employed by the Employer. Under that section the Commission has power to make an award which:

" . . . is not, or may not be, in accord with a law of the Commonwealth relating to salaries, wages, rates of pay or terms or conditions of service or employment of employees . . . not being . . . the Compensation (Australian Government Employees) Act 1971 . . ."

Under that section the Commission has no power to make an award which is not or may not be in accord with the Compensation Act.

Counsel for the Employer contended that sub-clause 23(f) of the Award was not in accord with the Compensation Act and therefore was invalid since the Commission had no power to make it. In support of this contention counsel referred to a number of sections of the Compensation Act, but in our opinion each of those sections has the opposite effect to those contended for by him.

Reference has been made already to s.45 of the Compensation Act as prescribing the amount of compensation by way of weekly payments payable to an employee where the employee is totally incapacitated for work. Sub-sections (2A), (2B) and (2C) were inserted into s.45 of the Compensation Act by s.8 of Act No. 122 of 1972. Those sub-sections are long and complex and are designed to increase the amount of weekly payments of compensation to a prescribed amount where the employee is employed under conditions of employment providing for sick leave payments under which the employee would have received payments greater than otherwise payable under s.45 of the Act. In other words, the new sub-sections were designed to require payments of compensation at the rate of full sick pay entitlements during the first twenty-six weeks or aggregate of twenty-six weeks of total incapacity arising from any one injury for which compensation is payable under the Act. For the purposes of sub-section (2B) a reference to a sick leave payment is a reference to a payment by way of wages or pay in respect of a period during which the employee concerned is absent from his employment by reason of illness, sub-section (2C)(b). The relevant provisions of sub-sections (2B) are set out:

" . . . the prescribed amount applicable to an employee in respect of a week is -

(a) in the case of an employee who is, during that week, employed . . . under conditions of employment providing for sick leave payments - an amount equal to the sum of -

(i) the sick leave payment that he would receive in respect of that week if, during that week, he were entitled to, and were granted, sick leave on full pay by reason of an illness that is not attributable to an injury in relation to which this Act applies; . . ." The reference to "full pay" has the same meaning as in sub-clause 23 of the Award. The prescribed amount as so determined is limited to a total period of twenty-six weeks of the period or of the aggregate of the periods of incapacity resulting from any one injury, sub-section (2A).

The effect of these provisions is that for the first twenty-six weeks of incapacity the compensation payable to an employee under the Award is the same as if the employee were entitled to sick leave payments under clause 23(a) of the Award. This follows from the deeming provisions of sub-section (2B)(a)(i) and the use of the word "illness" in sub-section (2C)(b). Those payments, however, are not treated as sick leave credits under clause 23 of the Award. Since the compensation payments during that period are equal to the amounts of entitlement of credits of sick leave under clause 23 of the Award, sub-clause (f) has no operation during that period. That sub-clause has effect only where the amount of compensation payable is less than the sick pay entitlements. After the twenty-six week period expires, the amount of weekly payments of compensation is reduced and thereafter sub-clause (f) operates to impose a duty upon the Employer to make the payment prescribed by that sub-clause. To that extent it cannot be said that the sub-clause is not in accord with the Compensation Act. It recognizes the liability imposed upon the Employer by the Compensation Act and imposes an additional liability on the Employer to make up the amount of wages the employee has lost by reason of his illness. In addition the sub-clause is designed to avoid inconsistency with the Compensation Act and to avoid the doubling up of liabilities on the Employer to the unfair benefit of the employee.

Section 52 of the Compensation Act makes provision for reduction of compensation payments in certain cases. Like many of the other provisions of that Act the section is long and complex. Under s.52(1), in cases where an employee receives payments of wages for any day on which he is entitled to payments under s.45, the amount of compensation payable is reduced to an amount being the excess, if any, of the entitlements of compensation over the wages paid. A similar provision is contained in s.52(3) where the non-compensation payment is not wages but an amount paid by reason of the injuries suffered by the employee. Sub-section (4) specifies a number of types of payment to an employee which are not to be included in the calculations referred to in the other sub-sections of s.52. One of those types of payments is an amount paid or payable in respect of sick leave in pursuance of the following sub-sections of the section, sub-section (4)(c). Under sub-section (5) where an employee is absent from his employment during any period by reason of illness and the employee is entitled to compensation under s.45 in respect of that period and in addition amounts are payable to the employee in respect of sick leave for that same period, limitations are placed on the total amount to be paid to the employee. The provisions of that sub-section do not apply to sick leave entitlements and credits due under clause 23(a) of the Award since those payments and credits arise only when the absence from work results from an illness not attributable to an injury in relation to which the Compensation Act applies. Payments under sub-clause (f) are make-up payments and that sub-clause is not brought into account under the provisions of s.52 of the Act and is not in conflict with that section.

Finally on this aspect of the case, counsel referred to s.103 of the Compensation Act which provides that compensation is not to be paid both under the Compensation Act and under an Award of the Conciliation and Arbitration Commission. Where there is a possibility of this happening the employee is required to elect which payments he should receive. This section does not prevent an award making provision for make-up pay to be paid to an employee.

The importance of s.45(2A), (2B) and (2C), s.52 and s.103 of the Compensation Act is that the express reference to sick leave provisions in awards contained therein and the provisions preventing the doubling-up of payments for sick leave and compensation to the unfair advantage of the employee all operate against the contentions of counsel for the Employer that there is no power in the Conciliation and Arbitration Commission to make awards for sick leave in circumstances where the Compensation Act makes provision for payments of compensation. These sections indicate that an award by the Conciliation and Arbitration Commission will not be inconsistent with the Compensation Act insofar as the Award contains provisions relating to sick leave entitlements especially where those sick leave entitlements arise only in relation to illnesses that are not attributable to an injury in relation to which the Compensation Act applies. A provision for make-up pay where compensation is payable cannot be inconsistent with the Compensation Act.

Sub-clause 23(f) of the Award is not invalid by reason of the first ground relied upon by the Employer.

In the result, we would make the following interpretation:

That on the true interpretation of clause 23 sub-clause (f), Sick Leave, of the Fire Brigade Employees (A.C.T.) Award 1975 the Employer is required to pay to the employee to whom the provisions of the sub-clause apply the difference between the employee's full pay and his workers' compensation payments irrespective of the duration of his incapacity.

JUDGE2

This is an application pursuant to s.110 of the Conciliation and Arbitration Act 1904, (Cwlth) for the interpretation of paragraph (f) of clause 23 of the Fire Brigade Employees' (A.C.T.) Award 1975. The applicant is the Federal Firefighters' Union, an organization of employees registered under that Act. The respondent, the Minister of State for the Capital Territory, is the nominal employer of the members of the Union who are bound by the Award. Clause 23 of the Award is entitled "Sick Leave".

The Award was made by the Australian Conciliation and Arbitration Commission on 15 September 1975 and was expressed to operate for a period of 12 months from the first pay period on or after 3 April 1975. It continues in force by virtue of s.58 of the Conciliation and Arbitration Act. Some of its terms have been varied under s.59 of that Act, but none of the variations is presently relevant.

The Award arose out of a log of claims submitted by the Minister to the Commission in March 1975. The Union which is the present applicant became a party to the proceedings and submitted a counter log of claims. The respective logs were in identical terms insofar as they concern the subject matter of the present clause 23 save for a presently irrelevant difference. The Commission accepted the Minister's claim in relation to the point in dispute. Its decision concluded with the following paragraph:

"For those clauses which were not agreed between the parties and upon which I have made the decisions above I ask the employer to provide me with a draft clause in each case. The Award will be issued shortly after receipt thereof."

The clause provided by the Minister and included by the Commission in the Award as clause 23 differed considerably from the relevant clause in either log. The Union asserts that the interpretation of the clause for which it contends was intended by the parties and that that can be seen from the logs. I have been unable to discern any reason for attempting to construe the Award by reference to the Commission's decision or the respective logs which themselves are not clear in their meanings. Equally unhelpful, as it seems to me, is the history or content of sick leave provisions in other Awards, or practices with respect to sick leave which have been adopted in the Australian Capital Territory or elsewhere.

No other part of the Award was suggested to affect the meaning of clause 23 which provides as follows:

"23 - SICK LEAVE

(a) An employee who is absent from his work on account of personal illness or injury sustained while off duty shall be entitled to leave of absence on full pay up to the limit of his sick leave credit subject to the following conditions and provisions of this clause:

(i) He shall as soon as practicable inform the officer in charge of the station to which he is attached or is due to report for duty of his inability to attend for duty.

(ii) He shall forward to the station to which he is attached a medical certificate which shall state the estimated duration of his illness or injury.

(iii) If so required he shall submit to examination by the Government Medical Officer.

(b) An employee shall be credited with sick leave on full pay as follows:

On date of appointment . . . . . . . . . . . . 144 hours
On completion of 12 months
service . . . . . . . . . . . . . . . . . . . .144 hours
On completion of each additional
12 months service . . . . . . . . . . . . . . .144 hours
Provided that:

(c) The term full pay, for the purposes of this clause, shall mean the amount that an employee would have normally earned, including rostered average overtime, had he been on duty.

(d) The maximum period allowable with pay in respect of any continuous absence through illness shall be 52 weeks.

(e) Where payment has been made for sick leave under this clause to an employee whose sick leave entitlement previously had been exhausted or whose sick leave has not been established the employer may deduct the amount overpaid from the salary of the employee concerned on the following week's pay.

(f) When the incapacity is due to a cause which would entitle an employee to workers' compensation the employer shall pay the difference between the amount of the workers' compensation payment and full pay. The employee's entitlement to sick leave arising from ordinary illness shall not be affected by the provisions of this sub-clause.

(g) The employee shall prove to the satisfaction of the employer or, in the event of a dispute, to the satisfaction of the Commission that he was unable, on account of such illness or incapacity, to attend for duty on the day or days for which sick leave is claimed. Payment may not be made for sick leave until this condition is fulfilled. Any medical certificate tendered in support of a claim shall state that the employee was prevented by such illness or incapacity from attending for duty on the day or days for which sick leave is claimed.

(h) Each year an employee shall be allowed four days sick leave without being required to produce a medical certificate. This entitlement shall not be cumulative.

(i) Where an employee who is eligible for sick leave produces a medical certificate to the effect that he has been incapacitated for a period of:

(i) one day or more whilst on recreation leave, or

(ii) one day or more whilst on long service leave

the employer shall recredit the employee with an equivalent period of recreation or long service leave as the case may be."

The declaration sought by the Union is in the following terms:

"That on the true interpretation of clause 23 sublcause (f), Sick Leave, of the Fire Brigade Employees (A.C.T.) Award 1975 the employer is required to pay to the employee to whom the provisions of the subclause apply the difference between the employee's full pay and his workers compensation payments irrespective of the duration of his incapacity."

Towards the end of the hearing, the Union accepted that a qualification in the terms "whilst he remains an employee and whilst the Award continues to operate" is implicit in its interpretation of clause 23(f).

In a broad sense the objectives of clause 23 of the Award are clear. It is concerned with payments to employees who are unable to attend work through "disability", to use what is hopefully a simple and neutral word. Both the amount to be paid and any limitation on the period of absence during which an entitlement to payment subsists are obvious aspects for attention in the drafting of such a clause. However, the expression of provisions in an award concerning payments to disabled Commonwealth employees is complicated by the existence of legislation entitling injured Commonwealth employees to compensation in certain circumstances. Under the Compensation (Commonwealth Government Employees') Act 1971 (Cwlth), the Commonwealth is liable to pay compensation to an employee who suffers personal injury "arising out of or in the course of" his employment (s.27), or on a journey to or from his employment (s.32). Other sections further elaborate upon the circumstances in which an injured employee becomes entitled to compensation. Relevant terms, including "injury", are defined; see e.g. s.5(1), (6) and (11), and s.29.

Differences of language and approach occur between the Compensation Act and the present Award, including the following:

(i) The word "injury" is used in the Act in a special defined sense. The Act also refers to "personal injury" - see e.g., s.27(1). However, it does not use the terms "personal illness" or "ordinary illness", although the word "illness" is mentioned in places. The Award speaks of "personal illness", "ordinary illness" and "illness", without differentiation, express or otherwise. It also refers to "injury sustained while off duty" and "injury"; again there is no distinction drawn. Both Act and Award mention "incapacity" (see paragraphs (f) and (g) of the Award, which also mentions "incapacitated" in paragraph (i)).

(ii) Entitlement under the Award is related, at least generally, to an inability to "attend for duty", a test which coincides with neither total incapacity nor partial incapacity under the Act.

(iii) The Act contains detailed provisions as to the circumstances in which an employee who is injured becomes entitled to compensation. It does not do so by reference to whether the employee is injured "on duty" or "off duty", although there is no doubt that, other considerations aside, if an injury is sustained "on duty" it is compensible. Sub-clause (a) of clause 23 of the Award refers, inter alia, to "injury sustained while off duty".

(iv) There is no provision in the Act which is truly comparable with paragraphs (b) and (d) of clause 23 of the Award which are concerned with temporal limitations in respect of payments to employees who are unable to attend work by reason of disability. Under the Act an employee may continue to receive compensation indefinitely, subject to provisions entitling the Commonwealth, in some circumstances, to redeem the employee's compensation rights by payment of a lump sum.

At the foundation of the primary argument for the Minister, which related to the correct meaning of clause 23(f) of the Award, was an assertion that the phrase "personal illness or injury sustained while off duty" in paragraph (a) of clause 23 is wide enough to include injuries giving rise to an entitlement to compensation under the Compensation Act. The Minister's submission was that the sole operation of paragraph (f) of clause 23 is to qualify paragraph (a), so as to reduce the amount payable as "sick leave" under the Award to an employee with an injury which entitles him both to sick leave pay and to compensation.

There are clear objections to the meaning which the Minister would have given to clause 23(f). For example:

(a) The Minister's construction involves an obvious anomaly. If it is correct, an additional amount is payable under clause 23(f) of the Award in respect of an injury entitling an employee to compensation under the Compensation Act only if it is also a "personal illness or injury sustained while off duty"; in respect of compensible injuries not "sustained while off duty", no additional payment is provided for. There is no conceivable reason why that might have been intended. To revert for a moment to the circumstances leading up to the Award, Counsel who appeared for the Minister acknowledged that the large gap which exists in clause 23(f) of the Award on his approach would not have occurred had the clause in the Minister's log of claims been inserted in the Award.

(b) If the Minister's approach to clause 23(f) of the Award be correct, the draftsman has ignored both ss 52(5) to (9) and s.103 of the Compensation Act. The force of this objection is, however, lessened because, as will later be seen, there are other indications that the draftsman may well have paid insufficient regard to that statute.

The general operation of the major elements of clause 23 of the Award apart from paragraph (f) may be briefly summarised.

Paragraph (a) of the clause provides that an employee to whom the Award relates is entitled to sick leave pay if he is "absent from . . . work on account of personal illness or injury sustained while off duty". The verb "sustained" supports the view, which I consider correct, that "sustained while off duty" qualifies only "injury", and not also "personal illness". Paragraph (a) is expressed to be "subject to the following conditions and provisions of this clause"; the "conditions and provisions" include not only sub-paragraphs (i), (ii) and (iii) of paragraph (a) of clause 23 but also paragraphs (b) to (i) of the clause. Paragraph (b) is followed by the words "Provided that". Clause 23 overall, including those phrases, confirms that the various paragraphs of the clause are not wholly independent, and that paragraph (a) is not a sole and exhaustive statement of the entitlement of the relevant employees. However, neither phrase "subject to" and "Provided that" necessarily indicates that what follows is a qualification of what precedes it. The effect of each paragraph and of the clause as a whole must be determined by its substance and content. Speaking broadly as is presently sufficient, paragraph (c) quantifies the amount to be paid to an employee entitled to sick leave under paragraph (a), paragraph (b) prescribes the total period of sick leave, i.e. of absence from work on "full pay", to which an employee suffering a disability which prevents him from attending work is entitled, and paragraph (d) is concerned with the maximum period of continuous absence during which the right to payment continues to subsist. Paragraph (b) is applicable not only to absence from work through "personal illness" but also to absence from work through "injury sustained while off duty". Paragraph (d) does not expressly fix a period in respect of absence through "injury sustained while off duty" but relates in terms only to absence "through illness". That appears to mean through "personal illness", since no other "illness" is referred to in paragraph (a); compare paragraph (a)(ii) which refers to "illness or injury" not "personal illness or injury sustained while off duty".

The phrase "personal illness or injury sustained while off duty" in paragraph (a) of clause 23 of the Award is, in my view, intended to refer to illness or injury which cannot be connected to employment so as to give rise to an entitlement to compensation; cf the word "illness" in ss. 45 and 52 of the Compensation Act. It is easy to criticise the language chosen in the Award, but not so easy to offer a satisfactory alternative; there may well be disabilities which are not intended to give rise to an entitlement under either the Compensation Act or the Award, for example, an injury "arising out of or in the course of employment" which is intentionally self-inflicted: Compensation Act, s.27(2). The same fundamental distinction between compensible injury and non-compensible illness or injury seems to me to underlie paragraph (f) of clause 23. The first sentence of that paragraph is concerned with compensible injuries. (The words "would entitle" obviously mean "do entitle".) The purpose of the final sentence of the paragraph appears to be to emphasise and make clear that different entitlements are provided by clause 23 in respect of non-compensible illness or injury on the one hand, and, on the other, compensible injury. It is true that the final sentence of paragraph (f) does not deal comprehensively with the non-compensible disabilities referred to in paragraph (a); the final sentence of paragraph (f) omits any reference to "injury sustained while off duty". However, that lack of symmetry does no more than offer a silent criticism of the draftsman; a similar omission from paragraph (d) has already been noticed.

I therefore consider that the first sentence of paragraph (f) of clause 23 is not a qualification or limitation of paragraph (a) but a provision providing for additional or "make-up" pay when an employee is unable to attend work by reason of an injury entitling him to compensation. Although the whole of clause 23 is headed "Sick Leave", and paragraph (g) at least, refers to both the entitlement under paragraph (a) and the entitlement under paragraph (f) by that description, the entitlement given by paragraph (f) is quite separate and distinct from that under paragraph (a). Neither paragraph (b) nor paragraph (d), which qualify the true sick leave entitlement under paragraph (a), is in my opinion of relevance to the operation of paragraph (f).

I have already noted that, contrary to my view, the commencing point of the Minister's submissions with respect to the interpretation of clause 23(f) of the Award was an assertion that the phrase "personal illness or injury sustained while off duty" in paragraph (a) is wide enough to encompass disabilities which give rise to an entitlement to compensation under the Compensation Act as well as non-compensible disabilities. Even were that so, I would be unable to agree with the Minister's contention that the first sentence of paragraph (f) is not more than a qualification of paragraph (a).

The next step for the Minister centred upon the phrases "subject to" and "Provided that", to which I have already referred, and "the incapacity" in the first line of paragraph (f) of clause 23. It was argued that, grammatically, the article "the" suggests that "incapacity" refers back to something which has already been mentioned, i.e. to "personal illness or injury sustained while off duty" and that the other phrases were indicative that paragraph (f) is a true proviso. It followed, according to the submission, that the first sentence of paragraph (f) is merely a qualification of paragraph (a), and has no operation other than to reduce the sick leave pay which would otherwise be payable to an employee absent from work "on account of personal illness or injury sustained while off duty" who is also entitled to compensation under the Compensation Act in respect of that " . . . injury sustained while off duty".

It is by no means clear to me that "incapacity" in paragraph (f) of clause 23 of the Award does not refer to an inability to attend work, rather than to the disability which is the occasion of that inability. (It is in the sense of inability to work that the Compensation Act seems generally to refer to "incapacity"). If that be so, a disability is the "cause" of the "incapacity", not the "incapacity", and the first sentence of paragraph (f) would not be confined to, even if it included, a disability which met the description in paragraph (a), i.e. a "personal illness or injury sustained while off duty". No doubt, there are matters which may be argued against this meaning of "incapacity", including, perhaps, the reference in paragraph (g) of clause 23 to "illness or incapacity".

However, even if "incapacity" in paragraph (f) refers to a disability and not to its "cause", it is well established that "the" may be read as "an" when required, particularly where a provision is not skilfully drafted: see e.g. Coast Brick and Tile Works Ltd v. Premchand Raichand (1967) 1 A.C. 192, 202 ff (P.C.). If "the incapacity" is read "an incapacity", then, even if the Minister's initial submission as to paragraph (a) be correct, paragraph (f) would not only reduce the sick leave pay payable to an employee absent from work by reason of a disability which was a "personal illness or injury sustained while off duty" and also a compensible injury, it would also provide an additional entitlement to other employees, absent from work due to a disability which is a compensible injury although not a "personal illness or injury sustained while off duty". In respect of the latter class of employees, its function would be creative of an entitlement, not restrictive of an entitlement already existing. Such an interpretation would avoid the difficulties involved in the Minister's approach, which I have already mentioned.

I am accordingly of opinion that the Minister's argument as to the meaning of paragraph (f) of clause 23 is incorrect. In my view, however the matter be approached, the result is the same. Paragraph (a) prescribes sick leave "full pay" for employees absent from work through a disability which is not connected with work so as to give rise to a claim for compensation, subject always to the relevant employee's "sick leave credit" under paragraph (b) and to any maximum period of continuous absence prescribed by paragraph (d). Paragraph (f) prescribes "make-up" pay for an employee absent from work who is entitled to compensation and its operation is unaffected by his "sick leave credit" or by a maximum permissible period of continuous absence.

However, I do not consider that the form of order sought by the Union accurately and unambiguously reflects the meaning of clause 23(f) of the Award. The result of the interpretation of clause 23(f) which I favour could be expressed by a declaration that on the true interpretation of clause 23, Sick Leave, of the Fire Brigade Employees (A.C.T.) Award 1975 paragraphs (b) and (d) do not qualify or affect the operation of the first sentence of paragraph (f) of the clause. Since, contrary to my opinion, a majority of the Court are of the view that the order asked for by the Union should be made, it is unnecessary for me to express a concluded opinion on the Minister's other argument which was that no declaration should be made in the terms advanced by the Union because, if it bears that meaning, clause 23(f) is invalid. Nonetheless, because one of the grounds of alleged invalidity raised by the Minister involves a point of general importance, I think it is appropriate that some observations be made in respect of what was argued.

The first basis of alleged invalidity concerned the absence of any temporal limitation on the operation of clause 23(f). It was submitted that, since paragraph (d) does not qualify the entitlement to "make-up" pay for which paragraph (f) provides, paragraph (f) was beyond power in that it purports to provide for payments beyond the period of the Award. Reliance was placed upon s.58 of the Conciliation and Arbitration Act and statements in R. v. Hamilton Knight, ex parte The Commonwealth Steamship Owners' Association (1952) 86 C.L.R. 283.

Were there any substance in the point, I would find it difficult to see how paragraph (d) could assist to remedy the problem. Paragraph (d) is concerned only with the limited question of "continuous absence"; it is paragraph (b) of clause 23 which deals with the subject of an employee's total permitted period of absence on sick leave. Further, the maximum continuous period of 52 weeks for which clause 23(d) provides might go beyond the initial period of the Award which, as I have already stated, was expressed to be for a term of 12 months, although it has been continued by virtue of s.58 of the Conciliation and Arbitration Act. The 52 weeks referred to in clause 23(d) and the 12 months period of initial operation of the Award would only substantially coincide in respect of absences on sick leave which commenced immediately upon the Award coming into operation; in practice, not all personal illnesses and off-duty injuries would occur so conveniently. Indeed, it seems to me that there is nothing in clause 23 of the Award which expressly limits either entitlement under clause 23(a) or that under clause 23(f), to the period of the Award.

I do not presently perceive, however, why it follows that clause 23 is invalid. It may well be that it is implied in generally expressed provisions in an award that, as the Union conceded, they only continue to operate during the currency of the Award and whilst the employee remains employed by the employer, giving no rights which continue to subsist thereafter.

The other ground of alleged invalidity, if sustained, would be of general application to awards under the Conciliation and Arbitration Act in relation to Commonwealth employees. It is implicit in what was submitted for the Minister on this aspect of the case that the relevant clause in the Minister's log, if it bore the meaning asserted by the Union, was also beyond the Commission's award-making power so that, if the Union were to apply under s.59 of the Conciliation and Arbitration Act for the Award to be varied to accord with the parties' consensus as evidenced by the logs and the previous proceedings in the Commission, the application could not be granted. Shortly stated, the Minister's argument was that the Compensation Act constitutes a complete code in relation to the obligations of the Commonwealth and the rights of an employee who is totally incapacitated by an injury entitling him to compensation. For reasons not made clear to me, Counsel for the Minister expressly disavowed any reliance upon the provisions of the Compensation Act which deal with compensation in respect of partial incapacity.

It was submitted that, by reason of the Compensation Act relevantly constituting a comprehensive code the Conciliation and Arbitration Act does not empower the Commission to make an award containing a provision for an additional payment to a totally incapacitated employee who is entitled to statutory compensation in respect of his injury. The Compensation Act was said to prevail over the Conciliation and Arbitration Act and reference was made to the principles frequently expressed by the maxims leges posteriores priores contrarias abrogant and generalia specialibus non derogant. A somewhat similar argument with respect to the Workers' Compensation Act, 1926 (N.S.W.) was rejected by the New South Wales Court of Appeal in ex parte Master Builders' Association of New South Wales; Re Industrial Commission of New South Wales (1971) 1 N.S.W.L.R. 655.

I do not think that there is any need to resort to the maxims referred to. The Conciliation and Arbitration Act contains a specific provision, appropriately amended after the passage of the Compensation Act, for the accommodation of the award-making power under the Conciliation and Arbitration Act to the operation of the Compensation Act: see s.41A(1) of the Conciliation and Arbitration Act. Taking both Acts together, it seems to me plain that the Commission has no power under the Conciliation and Arbitration Act to include in an award a provision which conflicts with the Compensation Act. The sole question, therefore, as the argument was put for the Minister, is whether the Compensation Act discloses a legislative intention against a clause in an award providing for an additional payment to a totally incapacitated employee who is entitled to compensation by comprehensively providing for the compensation rights of such an employee.

In my opinion, the Minister's arguments cannot be sustained in view of Part VI of the Compensation Act - "Liabilities Arising Otherwise Than Under This Act" - especially s.103. The provisions of Part VI which, in broad terms, seeks to prevent the receipt by an injured employee of a double benefit, constitute a clear acknowledgement that that Act does not constitute an exhaustive statement of the rights of an employee injured in circumstances giving rise to an entitlement to statutory compensation, or indeed of the liabilities of the relevant employer, the Commonwealth. Thus for example, Part VI recognizes that a right to damages may co-exist with a right to compensation. In view of Part VI it cannot be said that the compensation payable to an employee under the Compensation Act is exclusive of every other right of the employee or liability of the Commonwealth arising from injury to the employee in circumstances giving rise to a claim to statutory compensation. It might be added that, if this ground of alleged invalidity were made good, it is not apparent to me why it would not also invalidate clause 23(f) of the Award as the Minister would have it construed. His construction also involves "make-up" pay in addition to compensation but only where the compensible injury is also a "personal illness or injury sustained while off-duty". The only difference is that, on the Minister's approach, there would be fewer cases in which the entitlement to "make-up" pay in addition to compensation would be called for. But that involves only difference in degree, not in principle.

The provision in Part VI which is most directly relevant for present purposes is s.103. There is nothing in that section which indicates that the Compensation Act is intended to exclude the subject of payments to injured employees from the award-making power under the Conciliation and Arbitration Act. On the contrary, s.103 of the Compensation Act affords an express recognition that an award may make provisions for such payments, and enacts a scheme for ensuring that the injured worker does not receive double benefits, requiring him to elect between his statutory entitlement to compensation and his benefits under such an award. It is not to the present point whether s.103 directly applies to payments additional to statutory compensation in order to supplement it, such as the "make-up" pay provided for in clause 23(f) of the Award; the section may well not require an election between a right to compensation and a right to such a supplementary payment which involves no duplication of the compensation. However that may be, s.103 of the Compensation Act is wholly incompatible with the Minister's argument, which is that the Compensation Act constitutes an exclusive code in respect of payments to injured employees who are entitled to compensation and is inconsistent with any provision in an award with respect to that subject.

However, it is not clear to me that the Minister's argument may not have been too narrowly founded. As I have noted, the Minister's case was that the Compensation Act manifests an intention to deal exclusively with the subject matter of payments to Commonwealth employees totally incapacitated by compensible injuries. It was not submitted, at least at the forefront of the Minister's argument, that clause 23(f) of the Award provides for rights and liabilities which collide with provisions of the Compensation Act, or are otherwise inconsistent with the rights and liabilities created by that Act. A perusal of the Act's provisions in relation to compensation for both total and partial incapacity nonetheless seems to me to reveal some difficulties.

Section 45 of the Compensation Act deals with injuries to Commonwealth employees which result in their becoming "totally incapacitated for work" (s.45(1)), a description which includes those "fitted only for employment of that kind is not reasonably available . . ." - (s.26), as to who is a Commonwealth employee for this purpose, see s.5(1) "employee", ss. 5(6) and 5(7) and s.7. The Act does not define partial incapacity, but it is obviously to be contrasted with total incapacity and is principally dealt with in s.46. The inability of an injured employee to carry out his pre-injury job might mean that he was unable to work in any suitable employment (to paraphrase s.26 of the Compensation Act), but would by no means always necessarily establish that he was "fitted only for employment of a kind that is not commonly available and employment of that kind is not readily available to him". Unless that were shown, an injured employee unable to perform his pre-injury work would be partially incapacitated and not totally incapacitated within the meaning of the Compensation Act: cf Thompson v. Armstrong and Royse Pty Ltd (1950) 81 C.L.R. 585. Further, the duration of an incapacity is not determinative of whether it is total or partial. Section 5(1) of the Compensation Act defines "permanent" as meaning "likely to continue indefinitely". Either type of incapacity, total or partial, may be either permanent or temporary.

Each of ss. 45 and 46 of the Compensation Act prescribes a formula for the calculation of the weekly amount payable in the appropriate circumstances under the statute. The Act does not include any definition of "compensation". Its scheme, relevantly, is to fix both the circumstances giving rise to an entitlement to payment of compensation and the amount which the Commonwealth is liable to pay as compensation. Basically, the formulae concerning the calculation of compensation provided for in ss. 45 and 46 of the Compensation Act are related to the injured employee's previous weekly earnings (see s.25). Section 45(2) provides generally that, where an injured employee is totally incapacitated for work, the weekly rate of compensation is a prescribed amount or his average weekly earnings before the injury, whichever is the less. However, the effect of sub-sections (2A), (2B), and (2C) of s.45 is that, if the amount of an employee's sick leave pay when absent by reason of illness is greater than the amount of the compensation for which s.45(2) provides, the amount of his sick leave pay becomes the amount of his weekly compensation during the first 26 weeks of his total incapacity; but, what an injured employee receives under s.45, he receives as compensation and not as sick leave pay, and his sick leave credits are not reduced. Section 46(2) provides that the weekly amount payable as compensation to a partially incapacitated employee is (1) the lesser of the prescribed amount or the amount (if any) by which his pre-injury average weekly earnings exceeds from time to time the weekly amount he is able to earn in some suitable employment or business, or (2) the rate that would be payable to him after 26 weeks if he were totally incapacitated less the weekly amount he is able to earn in some suitable employment or business, whichever is the greater.

If an injured employee is in receipt of certain other payments, not including sick leave pay in respect of illness (s.52(4)(c) and (9)), his compensation may be reduced pursuant to subsections (1) to (3) of s.52 of the Compensation Act. The relationship between these subsections, especially sub-section (3), and s.103 of that Act is not immediately obvious. Subsections (1) and (2) are relevantly concerned only with compensation payments to totally incapacitated employees who are in receipt of payments "by way of salary, wages or pay", a concept elaborated upon in s.52(10). Subsection (3) of s.52 permits a reduction in the compensation otherwise payable to an employee who is either totally or partially incapacitated if he is in receipt of any other payment "by reason of the injury in respect of which the compensation is payable or by reason of any incapacity resulting from that injury", other than a payment "by way of salary, wages or pay", or a payment described in s.52(4), which includes a reference to sick leave pay in respect of illness (s.52(4)(c)). Subsections (5) to (9) of the same section perform a quite different function. Their effect, briefly summarized, is to entitle an employee who is both totally (but not partially) incapacitated by compensible injury and ill not only to statutory compensation, but also to reduced sick leave pay. The amount of the compensation in respect of the injury is unaffected; the amount of the sick leave pay in respect of the illness becomes the difference between full sick leave pay and the amount of the compensation; the sick leave of the employee is reduced only proportionately to the ratio between the amount received as sick leave pay and full sick leave pay.

In any ultimate determination of whether or not the "make-up" pay for which clause 23(f) of the Award provides is consistent with the Compensation Act, and thus as to the validity of that part of the Award, the matters to be taken into consideration would, I think, include the following
(i) There is no scope for such an award provision to operate during the first 26 weeks of any total incapacity by reason of compensible injury; the statutory compensation payable in that initial period of total incapacity, but not thereafter, is equivalent to full sick leave pay: see Compensation Act, ss 45(2A), (2B) and (2C).

(ii) The generality of the language of s.103 of the Compensation Act raises the question whether an election is required between statutory compensation and "make-up" pay, notwithstanding that the latter is merely supplementary and involves no duplication of benefits to the employee.

(iii) Whilst s.103 of the Compensation Act perhaps does not have that effect, it is by no means clear that "make-up" pay under clause 23(f) of the Award is not a payment liable to be brought to account under subsections (1) or (3) of s.52. If it is such a payment, it is difficult to see how s.52 could be effectively operated if its object is, or its objects include, some limitation on the amount payable to an employee who has suffered a compensible injury. Any reduction under s.52 of the Act of the amount payable by way of statutory compensation would be met by a corresponding increase of the "make-up" pay under clause 23(f) of the Award.

(iv) If clause 23(f) of the Award provides for "make-up" pay to an injured employee who is only partially incapacitated, i.e. who is able to earn although unable to perform his pre-injury job, it may well collide with the Compensation Act. For example, any diminution of the statutory compensation under s.46 of the Act by reference to a partially incapacitated employee's other earnings would be met by a corresponding increase in his "make-up" pay under clause 23(f) of the Award. An injured employee's total receipts while partially incapacitated would, or at least might, on this hypothesis exceed his pre-injury full pay by the amount which he is able to earn post-injury.

(v) Clause 23 of the Award overlooks the possibility that an employee may at the one time be both injured and ill. Although the legislative draftsman has ignored that an ill employee may also be partially incapacitated by compensible injury, it has been noted that subsections (5) to (9) of s.52 of the Compensation Act make specific provision for a totally incapacitated employee who is also ill to receive reduced sick leave pay in addition to his statutory compensation. No doubt, the right of an ill employee to sick leave pay under clause 23(a) of the Award must be read subject to those sub-sections with the result that his sick leave pay is reduced to the difference between full sick leave pay and his statutory compensation. The result is, of course, to entitle him to full pay, being the aggregate of his compensation and his reduced sick leave pay. Clause 23(f), however, taken literally, entitles him also to a further amount, equivalent to the difference between full pay and compensation, by way of "make-up" pay. If that is what it provides, I doubt whether clause 23(f) is compatible with the Compensation Act and the legislative policies which are discernible in it. There may be answers; e.g. clause 23(f) may only be intended to operate where no amount is payable as sick leave pay.

These matters were not fully argued and I accordingly think it better not to express a final opinion concerning them. I have already indicated why I would decline the order asked for by the applicant.