Green v Seven Network (Operations) Limited
[2021] NSWPIC 75
•13 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Green v Seven Network (Operations) Limited [2021] NSWPIC 75 |
| APPLICANT: | Piper Green |
| RESPONDENT: | Seven Network (Operations) Limited |
| MEMBER: | Ms Carolyn Rimmer |
| DATE OF DECISION: | 13 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for weekly benefits; whether the additional $500 provided to the applicant was a monetary allowance for the purpose of covering the expense of ingredients in the program; even if the date of injury is taken instead as being January 2019, this makes no difference to the result as the provisions of the 1987 Act as to PIAWE apply, and not the provisions of the 2018 Amendment Act; Held- this was a monetary allowance covering the expense of ingredients, and specifically excluded from the calculation of PIAWE under the former section 44G (1) of the 1987 Act. |
| DETERMINATIONS MADE: | The applicant’s pre-injury average weekly earnings were $500. |
| ORDERS MADE: | 1. The respondent to pay the applicant weekly compensation as follows: a. 24 December 2018 to 25 March 2019 at $475 per week pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act), and b. 26 March 2019 to date and continuing at $425 per week pursuant to s 37 of the 1987 Act. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Piper Green (the applicant), was employed by the respondent, Seven Network (Operations) Limited as a contestant in a reality television program, “My Kitchen Rules”. The respondent was insured by GIO General Limited (the insurer) at all relevant times.
The applicant bought a claim against the respondent seeking payment of weekly benefits from 24 December 2018 to date and continuing at the rate of $1,000 per week.
The applicant alleged that she had sustained psychological injury over the course of her role in “My Kitchen Rules” due to vilification and bullying from producers and the network. The applicant alleged that this involved “over 40 hour work weeks, control over her phone, distortions of her actions and words after editing, victimisation, bullying and harassment and unfair treatment and adverse interactions with other workers, producers and staff”.
In the Reply, the respondent disputed various issues including, in summary, whether the applicant was a worker or deemed worker, whether she received an injury as alleged, whether employment was a substantial contributing factor to the injury, whether the applicant was incapacitated at all or as alleged, whether any incapacity was related to an injury at work, the rate of weekly compensation claimed, that notice of injury was not given as required by the legislation, that the claim for compensation was not made within the time limits prescribed by the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), that the events alleged by the applicant were not real events or did not actually occur and that the applicant did not suffer a psychological injury or that she had misperceived events.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) What was the quantum of the applicant’s pre-injury average weekly earnings (PIAWE)?
PROCEDURE BEFORE THE COMMISSION
The matter was listed for a telephone conference on 16 December 2020. The applicant was represented by Mr Carmine Santone of Santone Lawyers and the respondent was represented by Mr Rhett Slocombe of Hall & Wilcox. Ms Laura Jones from the insurer also attended the telephone conference. The matter was listed for a further telephone conference on 17 February 2021. I noted at the telephone conference that the date of injury which was pleaded as 13 August 2018 was to be amended after the respondent provided the applicant with details of when the applicant last worked for the respondent. I directed that the applicant file a supplementary statement concerning the section 254 and section 261 issues within seven days. The respondent was given leave to issue Directions for Production on Dr Yan, Dr Cocks and Ms Gillies for clinical notes and records. Mr Santone advised that the applicant agreed to attend an independent medical examination arranged by the respondent.
The parties attended the second telephone conference on 17 February 2021. The applicant was represented by Mr Carmine Santone of Santone Lawyers and the respondent was represented by Mr Rhett Slocombe of Hall & Wilcox. Ms Laura Jones and Ms Olivia Raiman from the insurer also attended the telephone conference. The parties advised that the matter was settled subject to agreement on the rate for PIAWE and the date of commencement of weekly payments.
Following the telephone conference on 17 February 2021, the following orders were issued:
1.Proceedings discontinued.
2.Dispense with the requirement to file a Notice of Discontinuance.
3.Liberty to apply within 7 days if there are outstanding issues with PIAWE.
The following is not a determination of the Commission, however, I note that the parties had agreed:
1. Respondent agrees to make payments of weekly compensation on a voluntary basis.
On 18 February 2021, the parties contacted the Commission and advised that agreement had not been reached on PIAWE and requested that the matter be listed for another telephone conference.
As it appeared that the only issue to be determined was PIAWE, I decided that the matter can be dealt with on the papers and issued the following directions:
1.The consent orders in this matter dated 17 February 2021 are revoked.
2.Applicant to file and serve written submissions by 5 March 2021.
3.Respondent to file and serve written submissions by 12 March 2021.
4.Applicant to file and serve any written submissions in reply by 19 March 2021.
5.A decision will be given on the papers following the filing of submissions by the parties.
A further direction was issued on 23 March 2021 ordering the respondent to file further written submissions in reply on the question of the date of injury.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. 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.
The parties were informed of my intention to determine the dispute without holding a conciliation conference or arbitration hearing. The parties have agreed to the determination of the matter without a further conference or formal hearing.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents filed by the applicant and dated 14 December 2020 and attachments;
(d) Application to Admit Late Documents filed by the applicant and dated 21 December 2020 and attachments;
(e) Application to Admit Late Documents filed by the respondent and dated 11 February 2021 and attachments, and
(f) Application to Admit Late Documents filed by the applicant and dated 22 February 2021 and attachments.
FINDINGS AND REASONS
The applicant was employed by the respondent pursuant to an agreement headed “Contestant Agreement” (the Agreement) executed by the parties on 23 June 2018 and another connected agreement headed “Contractor Agreement”. The Agreement provided for payment to the applicant of a “fee” in the sum of $500 per week, as recorded in clause 3.1 and 3.2, and an “allowance” in the sum of $500 per week as recorded in clauses 5.2 and 5.3.
Clause 3.1 of the Agreement stated the following: “In consideration of the rights granted in this Agreement, I acknowledge that should I be confirmed as a contestant on the Program the Produced will pay me a fee of $500.”
Clause 3.5 of the Agreement stated the following: “Seven will provide an allowance for all ingredients for the meals that I cook as part of the Program as determine by Seven and for the décor for the dinner/s.”
Clause 5.2 of the Agreement stated the following:
“I agree to co-host with my Partner at least one dinner event at a nominated premises approved by Seven in my state of origin, and attend other premises in other States to participate in a dinner event for contestants which will be filmed as part of the Program. I acknowledge that Seven will provide return economy air travel to the other State capital ci ties, accommodation (if required by Seven to stay overnight) and a meal allowance of $500 per week whilst I am required in the other cities.”
Clause 5.3 of the Agreement stated:
“During the second phase of the production I will be required to stay in Sydney. I acknowledge that Seven will provide return economy air travel to Sydney (if I reside outside Sydney), accommodation in Sydney (Sydney based contestants will also be accommodated by Seven) and a meal allowance of $500 per week whilst I am required in Sydney.”
The Contractor Agreement between the applicant and TVSN Channel Pty Ltd, under “Contractors Obligations” provided at paragraph 3.2: “During this agreement, you must : (a) provide all materials necessary to supply the services…”. The services were defined in Item 3 of Schedule 1 as “You will be engaged to provide services on a show-by-show basis. Unless otherwise agreed in writing, the services are set out in the attached ‘Services Description’ which may be amended or replaced from time to time”.
In her statement dated 4 August 2020, the applicant stated the following at paragraph 4:
“I was paid $500 per week for being on the show. I was given an additional $500 a week for food for myself to eat and to aid in the purchase of food that would need to be bought and to practice cooking for the show.”
The applicant’s bank statements revealed that the sum of $1,000 was regularly deposited into her bank account by “SWM FINANCE PTY SEVENNET”. The statements also reveal that other sums were paid into her bank account by the respondent, for example, $800 on 17 August 2018, $1,500 on 11 October 2018, $200 on 12 April 2019, $600 on 19 December 2018 and $600 on 30 November 2018.
In a supplementary statement dated 19 February 2021 the applicant referred to her earlier statement and said:
“1. At paragraph 24 I stated that we were paid $500 for food purchases, but these purchases were for our personal food, which is actually separate from the food that we were using for practice. I understood that it was something akin to a meal allowance and that we could use the money in anyway we wanted and there were no rules regarding obtaining the payment. We never had to provide receipts to show how we spent the money.
2. I attach my bank records which show my weekly earnings from the Seven Network.
3. The payment was always made in one lump sum of $1000 and although there are some other payments of differing amounts I am not sure as to why that is the case. I know that the $800 payment was because we started filming mid week, possibly Tuesday. As opposed to a full week [sic].”
The applicant’s submissions
The applicant’s submissions dated 8 March 2021 and the applicant’s submissions in reply dated 23 March 2021 were both prepared by Mr Craig Tanner as Counsel for the applicant and instructed by Mr Santone.
The applicant submitted that the respondent’s decision to apportion the applicant’s remuneration into a fee and a “meal allowance” was arbitrary and did not alter the substantive reality that the applicant was remunerated in the sum of $1,000 per week for each week that she worked for the respondent. The proportion of the applicant’s remuneration or earnings that constituted the payment for meals was a sum which the applicant was not bound to spend exclusively on meals. It was a component of her earnings that she could spend as she saw fit
The applicant argued “meal allowance” was not quarantined and treated as a separate fund to be used exclusively for meal purposes only and precluding expenditure in respect of other things not related to meals. The “meal allowance” was not a credit available to the applicant to spend up to $500 per week on food subject to production of invoices and receipts and involving the forfeit of any balance not used in a particular week. The applicant was not restricted in how she spent the $500 sum designated as the fee.
The applicant noted that the respondent may have described a portion of the applicant’s earnings as a “meal allowance” but argued that in substance there was no basis for that portion of her remuneration to be labelled as a “meal allowance”. There was no reasoning as to how it was calculated and the amount of $500 per week was “wildly far off what a true meal allowance would comprise”.
The applicant submitted that the respondent cannot contend that it had the right to engage the applicant at a rate below the statutory minimum weekly rate and that it was remunerating the applicant beneath that rate.
Reference was made to section 44C and s 44E of the Workers Compensation Act 1987 (the 1987 Act) as in force at the time of the applicant’s employment and injury. The applicant submitted that as her earnings were not calculated on the basis of hours worked, her ordinary earnings were, as provided by section 44E (1) (b), “the actual earnings paid or payable to the worker in respect of that week” and in the applicant’s case her actual earnings were $1,000 per week.
Mr Tanner in the applicant’s submissions in reply dealt with the respondent’s submissions that PIAWE was to be calculated in accordance with the provisions in force as at 13 August 2018. The applicant submitted that 13 August 2018 was not the agreed date of injury and was contrary to the date notified in the claim, the deemed date adopted by the insurer in the dispute notice and the deeming provisions of the 1987 Act. The applicant argued that this was a disease injury and that section 15 of the 1987 Act provided for an injury in such a case to be deemed to have happened at the time of the worker’s incapacity. The applicant continued to work for the respondent until 23 December 2018. Mr Tanner conceded that the ARD did record a date of injury of 13 August 2018 but argued that in the telephone conference it was agreed that the respondent would provide details of the date when the final episode was filmed after Mr Santone advised that a period extending to December 2018 or alternatively January 2019 was relied upon.
Mr Tanner submitted that in any event the reliance by the respondent on section 44C (2) did not assist the respondent as the applicant received payment collectively amounting to $1,000 per week and would reasonably have expected to receive that sum every week for as long as she remained employed.
Respondent’s submissions
The respondent’s submissions dated 15 March 2021 and the respondent’s submissions in reply dated 30 March 2021 were prepared by Mr Slocombe.
In the submissions dated 15 March 2021, the respondent argued that the $500 ‘fee’ paid to the applicant for her participation in the television show represented her earnings in ‘employment’ for the purpose of calculating PIAWE. The respondent argued that the additional $500 provided to the applicant was a monetary allowance for the purpose of covering the expense of ingredients. As this was a monetary allowance covering the expense of ingredients, it was specifically excluded from the calculation of PIAWE under the former section 44G (1) of the 1987 Act.
The respondent submitted that the amount of the applicant’s PIAWE was $500 (subject to indexation), as this is the amount she could have reasonably expected to earn in ‘employment’ with the respondent.
The respondent submitted the appropriate weekly payments to be made in accordance with the 1987 Act were:
i) from 24 December 2018 to 25 March 2019 at $475 per week pursuant to section 36 of the 1987 Act, and
ii) from 25 March 2019 and ongoing at $425 per week pursuant to section 37 of the 1987 Act.
The respondent noted that the applicant had submitted that remuneration for workers in Australia was subject to industrial standards, and that therefore the respondent could not contend that it had the right to engage the applicant at a rate below the statutory minimum wage. In reply, the respondent argued that the applicant was engaged by the respondent as a contestant on a reality TV program. While it was conceded that the applicant fell within the definition of ‘worker’ or ‘deemed worker’ within the meaning of the 1987 Act, the applicant had entered into an Agreement, whereby it was agreed that she would be paid a fee for the period of the Production Period. This fee was to be paid until such time as the applicant was either eliminated from the show or stood down. The fee was not in any way tied to, or indexed against, any award, wage, salary or other industrial instrument, including the minimum wage (see 3.7 of the Contestant Agreement).
In reply submissions dated 30 March 2021, the respondent noted that the date of injury asserted by the applicant throughout the claim was 13 August 2018. The respondent referred to the telephone conference on 17 February 2021, noting that Mr Tanner was not present at the conference, and that the parties had agreed that the date of injury would be as pleaded in the ARD, that is, 13 August 2018.
The respondent submitted that even if the date of injury was determined as being a different date, this would not alter the outcome. Even if the former section 44C (2) did not apply and the applicant’s employment extended beyond four weeks, the evidence does not support the assertion that PIAWE is $1,000 per week.
Discussion
The applicant’s claim was made on the basis that she has no current work capacity. The issue of work capacity was not in dispute. However, there is a dispute as to PIAWE and as to whether the payment of $500 per week by the respondent in addition to the “fee” of $500 per week as an allowance which should be included in her ordinary earnings.
As a threshold matter, it is necessary to identify accurately the legislation which is applicable in the present matter.
This matter was settled subject to agreement on the rate for PIAWE and the date of commencement of weekly payments. The applicant sought workers compensation on the basis of alternative claims that she was either a worker under a contract of employment or a deemed worker under Schedule 1, Clause 15 of the 1998 Act. But it appears, based on the written materials forwarded by the parties to the Commission, that the settlement, while resolving that she was entitled to workers compensation benefits for work-caused injury, did not include any resolution of the question of whether she was a worker employed under a contract of service, as distinct from a deemed worker under a contract to provide services.
The fact that her entitlement to workers compensation has now been admitted does not permit the Commission for the purpose of determining the remaining PIAWE issue to give any weight to the applicant’s submissions dated 8 March 2021 at paragraphs 12, 13 and 14 based upon the statutory minimum wage rate for employees as gazetted by the Fair Work Ombudsman.
Although reliance on the deemed worker provision in Schedule1 provided a potential basis for deeming the applicant to be a worker in order to determine whether she was a worker for the purpose of the entitlement provisions of the 1987 Act, this deeming process does not extend to requiring that the PIAWE arguments in the present case be determined by reference to concepts set out in the applicant’s submissions paragraph 12 (“minimum contemporary industrial standards’), paragraph 13 (“the minimum wage, as gazetted by the Fair Work Ombudsman”) and paragraph 14 (“ a rate of remuneration beneath the statutory minimum rate”). The PIAWE issues in the present case must be resolved by reference to the correct legal characterisation under the 1987 Act of the payments actually made under the two agreements between the parties, and not by reference to what an industrial authority or tribunal under the Fair Work Act might think ought instead to have been paid if she was employed under a contract of service. The applicant’s arguments to this effect must therefore be rejected.
The applicant’s submissions quoted verbatim sections 44C and 44E of the 1987 Act but did not quote or refer to section 44G of that Act. However, the respondent’s submissions cured this omission and specifically referred to and relied upon section 44G, which the respondent described as being “the former” section 44G (respondent’s submissions paragraphs 6 and 11).
The respondent’s submissions took issue with the applicant’s arguments as to the date of injury, stating that the date of injury was agreed as being 13 August 2018, and contended that “her PIAWE is to be calculated in accordance with the provisions in force as at 18 August 2018.” The respondent’s submissions then developed its arguments on the basis that the “former” provisions of the 1987 Act applied for the purpose of calculating her PIAWE.
The applicant’s submissions in reply argued that the date of injury should be accepted as being not 13 August 2018 but instead December 2018 or January 2019. Mr Tanner then contended: “The rationale for the respondent’s preference for an earlier date of injury is to avoid the effect of the former s44 E, and to rely upon the former s44C(2) of the 1987 Act”.
The respondent’s submissions in reply argued that the date of injury was both pleaded and agreed to be 13 August 2018 while Mr Tanner argued that the date of injury was deemed to be the date of incapacity, which was in December 2018 or January 2019.
Although the parties appeared to be of the view that a difference in the date of injury would result in the former provisions of the 1987 Act not being applicable, neither party identified when the repeal of section 44C-44I of the 1987 Act took effect.
The date of injury as pleaded in the ARD was 13 August 2018. During the telephone conference on 17 February 2021 the parties agreed that the date of injury was 13 August 2018. No request has been made by the applicant to amend the date of injury in the ARD. The date of injury was formally admitted by both parties, and there has been no leave sought to withdraw this formal admission.
The applicant’s arguments as to the applicable statutory provisions relevant to PIAWE in the present case overlook the fact that although the Workers Compensation Legislation Amendment Act 2018 No 62 (the 2018 Amendment Act) was assented to on 26 October 2018 and various schedules of that amending Act commenced by proclamation on 12 December 2018, Schedule 3 of that amending Act which contains the relevant amendments relating to PIAWE did not commence to operate until a much later date than January 2019, such date being 21 October 2019.
Adopting the approach taken by Arbitrator Harris in Bosko Alavanja v PT Labour Services Pty Ltd (in liquidation) [2020] NSWWCC 348, I have concluded that although the various sections affecting the calculation of a worker’s entitlement to weekly compensation based on the calculation of PIAWE were substantially amended by the 2018 Amendment Act, the provisions concerning PIAWE in Schedule 3 of the 2018 Amendment Act were postponed
in their commencement and do not apply to injuries received before 21 October 2019 (1987 Act, Sch 6, Pt 21, c l7).The 2018 Amendment Act, section 2(1) provides: “This Act commences on a day or days to be appointed by proclamation, except as provided by subsections (2) and (3)”. Subsections 2(2) and 2(3) listed various Schedules (4,6,7 and 8) which commenced on the date of assent (26 October 2018) and Schedule 5 which commenced on 1 December 2018. Therefore the commencement date of Schedule 3 (which contained all the relevant amendments as to PIAWE) did not take place until the commencement date of Schedule 3 was appointed by proclamation.
By Commencement Proclamation under the 2018 Amendment Act signed and sealed on 11 September 2019, the Governor of New South Wales, with the advice of the Executive Council, and in pursuance of section 2(1) of the 2018 Amendment Act, appointed “21 October 2019 as the day on which Schedule 3 of that Act commences”. This proclamation included the following “Explanatory Note”:
“The object of this Proclamation is to commence provisions of the Workers Compensation Legislative Amendment Act 2018 relating to the calculation of pre-injury average weekly earnings of a worker for the purposes of determining the worker’s entitlement to weekly compensation.”
Accordingly, it is the provisions of the 1987 Act as in force as at the date of the applicant’s injury, that apply.
If the agreed date of injury was 13 August 2018, the former section 44G(1) of the 1987 Act would apply. This section provides for a number of exclusions from the calculation of a worker’s base rate of pay and ordinary earnings. Specifically, the former section 44G(1) (c) and (f) provides for the exclusion of any monetary allowance or separately identifiable amount not otherwise referred to.
But, even if the date of injury is taken instead as being January 2019, this makes no difference to the result as the provisions of the 1987 Act as to PIAWE apply, and not the provisions of the 2018 Amendment Act.
The provisions in relation to PIAWE in this case are therefore set out below.
Section 44C of the 1987 Act as in force for this injury provides:
“44C Definition-pre-injury average weekly earnings
(1) In this Division, ‘pre-injury average weekly earnings’, in respect of a relevant period in relation to a worker, means the sum of:
(a) the average of the worker’s ordinary earnings during the relevant period (excluding any week during which the worker did not actually work and was not on paid leave) expressed as a weekly sum, and
(b) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).
(2) If a worker has been continuously employed by the same employer for less than 4 weeks before the injury, ‘pre-injury average weekly earnings’, in relation to that worker, may be calculated having regard to:
(a) the average of the worker’s ordinary earnings that the worker could reasonably have been expected to have earned in that employment, but for the injury, during the period of 52 weeks after the injury expressed as a weekly sum, and
(b) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).
(3) If a worker:
(a) was not a full time worker immediately before the injury, and
(b) at the time of the injury was seeking full time employment, and
(c) had been predominantly a full time worker during the period of 78 weeks immediately before the injury,
‘pre-injury average weekly earnings’, in relation to that worker, means the sum of:
(d) the average of the worker’s ordinary earnings while employed during the period of 78 weeks immediately before the injury (excluding any week during which the worker did not actually work and was not on paid leave) ( ‘the qualifying period’), whether or not the employer is the same employer as at the time of the injury expressed as a weekly sum, and
(e) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).
(4) In relation to a worker of a class referred to in Column 2 of an item in Schedule 3,
‘pre-injury average weekly earnings’ means the amount determined in accordance with Column 3 of that item, expressed as a weekly sum.
(5) An overtime and shift allowance payment is permitted to be included in the calculation of pre-injury average weekly earnings (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable) if:
(a) the worker worked paid overtime or carried out work that attracted a shift allowance during the relevant period, and
(b) the worker would, but for the worker’s injury, have been likely, at any time during that 52 week period, to have worked paid overtime or carried out work that attracted a shift allowance.
…”
The term “ordinary earnings” is defined at section 44E of the 1997 Act:
“(1) Subject to this section, in relation to pre-injury average weekly earnings, the ordinary earnings of a worker in relation to a week during the relevant period are:
(a) if the worker’s base rate of pay is calculated on the basis of ordinary hours worked, the sum of the following amounts:
(i) the worker’s earnings calculated at that rate for ordinary hours in that week during which the worker worked or was on paid leave,
(ii) amounts paid or payable as piece rates or commissions in respect of that week,
(iii) the monetary value of non-pecuniary benefits provided in respect of that week, or
(b) in any other case, the sum of the following amounts:
(i) the actual earnings paid or payable to the worker in respect of that week,
(ii) amounts paid or payable as piece rates or commissions in respect of that week,
(iii) the monetary value of non-pecuniary benefits provided in respect of that week.
(2) A reference to ordinary earnings does not include a reference to any employer superannuation contribution.”
Section 44G of the 1987 Act as in force for the injury provides:
“(1) In relation to pre-injury average weekly earnings and current weekly earnings, a reference to a base rate of pay is a reference to the rate of pay payable to a worker for his or her ordinary hours of work but does not include any of the following amounts (referred to in this Division as base rate of pay exclusions):
(a) incentive based payments or bonuses,
(b) loadings,
(c) monetary allowances,
(d) piece rates or commissions,
(e) overtime or shift allowances,
(f) any separately identifiable amount not referred to in paragraphs (a) to (e).”
There is some evidence concerning the payment of the $500 allowance per week.
In her first statement dated 4 August 2020, the applicant said that she was paid $500 a week to be on the show and was given an additional $500 a week for food “for myself to eat and to aid in the purchase of food that would need to be bought and to practice cooking for the show.”
In her second statement dated 19 February 2021, the applicant referred to her earlier statement and said that the $500 paid for food purchases were for “our personal food, which is actually separate from the food that we were using for practice”. She said that she understood that “it was something akin to a meal allowance” and that she could use the money in any way she wanted and there were no rules regarding obtaining the payment. She said that she never had to provide receipts to show how she spent the money.
The descriptions by the applicant of the $500 being a meal allowance was at odds with the provisions in the Contestant Agreement and Contractor Agreement that she entered into with the respondent.
The Agreement dated 23 June 2018 provided for a “fee” in the sum of $500 per week, as recorded in Clauses 3.1 and 3.2, and an “allowance” in the sum of $500 per week as recorded in Clause 3.5 . Clause 3.5 of the Agreement stated the following: “Seven will provide an allowance for all ingredients for the meals that I cook as part of the Program as determined by Seven and for the décor for the dinner/s.” However, it is clear that this allowance should not be regarded as a meal allowance as provision for a meal allowance was made in Clauses 5.2 and 5.3 of the Agreement with the applicant being provided with a meal allowance of $500 per week, when she was required in the other cities and when she was required in Sydney in the second phase of the production.
There was some inconsistency in the evidence given by the applicant in her two statements. In her first statement she said that the $500 allowance was for food for her to eat and to aid in the purchase of food for the show and practice cooking. In her second statement, she said that the $500 allowance was for their personal food that was separate to the food used for practice. She said she understood it was akin to a meal allowance. This change in her version of events was never satisfactorily explained.
In my view, it was clear that the allowance of $500 per week was an allowance for ingredients for the meals the applicant cooked as part of the Program and for the décor for the dinner. While she may have eaten some of the ingredients that she purchased, this was not a meal allowance. There was a separate provision for a meal allowance when required in the Agreement. The applicant did not seem to understand that there was a separate meal allowance of $500 per week when in other cities or in the second phase of the production in Sydney, and it may be that she was confused by the different allowance. Therefore, I have placed less weight on the applicant’s evidence and more weight on the contractual arrangements set out in the two Agreements.
In any event, that payment of the allowance of $500 per week was a monetary allowance that fell within section 44G (1)(c) and should not be included in the applicant’s base rate of pay.
Neither party referred to any legal authority.
The payment of an allowance for ingredients and décor to be used in the show should not be regarded as an amount to be included in the applicant’s earnings.
The same result emerges by reference to sections 44C and 44E of the 1987 Act. Section 44C relevantly defines PIAWE as the average of the worker’s “ordinary earnings” during the relevant period expressed as a weekly sum. Section 44E defines “ordinary weekly earnings” by reference to “the worker’s base rate of pay”. The expression “subject to this section” clearly indicates section 44E is subject to the provisions of section 44G(1) which defines a “base rate of pay” as the rate of pay payable to a worker for his or her “ordinary hours of work” which does not include any of the listed “base rate of pay exclusions”. Such exclusions as listed, include “(c) monetary allowances” and (f) any separately identifiable amount not referred to in paragraphs (a) to (e).
The base rate of pay for ordinary hours of the worker in the present case must therefore be the weekly fee of $500 per week, and cannot be found to include the additional $500 per week or any additional sum or sums paid or contracted to be paid to the worker. The only legally relevant remuneration for PIAWE purposes was the $500 per week “fee” specified in Clause 3.1 of the Contestant Agreement. The PIAWE calculation does not include any allowances of an additional $500 per week contracted for or paid or any extra amounts paid beyond the base rate of pay of $500 per week paid as “the fee”.
There was an agreement between the parties that the respondent paid an allowance in order for the applicant to buy ingredients and décor to be used in the show. I am not satisfied that the $500 allowance was paid as part of her remuneration or in respect of the work she was performing for the respondent. I regard the $500 allowance for ingredients and décor as being an allowance for special expenses that the applicant would incur in her employment by the respondent on the program. I am satisfied that the $500 allowance for ingredients and décor should be excluded from her base rate of pay and ordinary earnings for the purpose of calculating PIAWE.
For the reasons already given above, I should add that the question of whether the respondent had the right to engage the applicant at a rate below the statutory minimum wage for employees is not a matter to be decided by the Commission and not relevant to the determination of the issues in dispute.
In summary, the allowance of $500 per week for ingredients and décor to be used in the show is a “monetary allowance” under section 44G(1)(c) or at least falls within section 44G(1)(f). This allowance does not form part of the base rate of pay and, therefore, does not form part of “ordinary earnings”.
Therefore, returning back to section 44C, the PIAWE figure is the average of ordinary earnings. The ordinary earnings were $500 per week. PIAWE is $500.
The respondent is to pay the applicant weekly compensation as follows:
(a) 24 December 2018 to 25 March 2019 at $475 per week pursuant to s 36 of the 1987 Act, and
(b) 26 March 2019 to date and continuing at $425 per week pursuant to s 37 of the 1987 Act.
Carolyn Rimmer
MEMBER
15 April 2021
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