HIH Winterthur Workers' Compensation (Vic) Ltd v Russell
[1998] VSC 172
•10 December 1998
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION
Not Restricted
No. 6836 of 1998
HIH WINTERTHUR WORKERS' Appellant COMPENSATION (VIC) LTD v RON RUSSELL Respondent
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JUDGE: McDonald J WHERE HELD: Melbourne DATE OF HEARING: 16 November 1998 DATE OF JUDGMENT: 10 December 1998 CASE MAY BE CITED AS: HIH Winterthur Workers' Compensation (Vic) Ltd v.
RussellMEDIA NEUTRAL CITATION: [1998] VSC 172
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Appeal from final order of Magistrates' Court - Question of law - Finding that Industrial Award not "applicable" to respondent under s.5A(6)(c) Accident Compensation Act 1985 constituting an error of law - Magistrates' Court Act 19.. s.109 - Accident Compensation Act 1985 s.5A(6)(c)
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APPEARANCES: Counsel Solicitors For the Plaintiff John Bingeman Q.C. Mills Oakley For the Defendant Tim Ryan Q.C. with Simon Parsons & Co. Lyn Boyce
HIS HONOUR:
The proceeding before the court is an appeal pursuant to s.109 of the Magistrates' Court Act 1989 on a question of law from a final order of the Magistrates' Court at Melbourne made on 17 July 1998 in proceedings in which the appellant was the defendant and the respondent was the plaintiff. At all material times the appellant was the authorised insurer of the respondent's employer pursuant to the Accident Compensation Act 1985 and the Accident Compensation (WorkCover) Insurance Act 1993.
The proceedings were commenced in the Magistrates' Court at Moe on 21 January 1998 within the jurisdiction of the Magistrates' Court as provided pursuant to the Accident Compensation Act 1985.
By his statement of claim the respondent alleged that at all material times and in and between 1988 and 1997 he was employed by "T.J. Andrews Transport" as a driver and that arising out of or in the course of his employment he suffered injury. He alleged that in particular he suffered stress and trauma on or about 12 August 1991 due to a motor vehicle accident. The respondent further particularised the injuries suffered by him to include anxiety, depression and post traumatic stress disorder. The respondent alleged that he made a claim for weekly payments of compensation and for the payment of medical and like expenses under and in accordance with the Accident Compensation Act in respect of his injuries which claim was lodged on or about 24 October 1997. He alleged that the appellant accepted liability to pay weekly payments of compensation and medical expenses in respect of the injuries and incapacity resulting from the same but that he requested a re-calculation of his pre-injury average weekly earnings in accordance with the Act. The respondent claimed a declaration of liability and an order that the appellant re-calculate his pre- injury average weekly earnings in accordance with s.5A of the Accident Compensation Act.
By its defence the appellant admitted that it was the authorised insurer of the respondent's employer which it alleged to be Pinewood Hauliers Pty Ltd. It denied that the respondent had suffered injury arising out of or in the course of his employment, that he had made a claim for compensation or that it had accepted liability to pay weekly payments of compensation. It further denied that the respondent had sought a re-calculation of his pre-injury average weekly earnings in accordance with s.5A of the Act. Although such was the state of the pleading it was common ground on this appeal that the appellant had paid weekly payments of compensation to the respondent, that there had been a dispute as to the amount of the weekly payments of compensation to which the respondent was entitled, that such dispute had not been resolved by the process of conciliation and following that the respondent issued the subject proceedings.
On the trial of the proceedings and after hearing evidence and the submissions of counsel who appeared for each party on the trial, the presiding Magistrate, on 17 July 1998, delivered his decision giving oral reasons for the same which included a finding made by him that the respondent's pre-injury average weekly earnings were $785. This finding as hereafter appears was made on the basis of further findings by the Magistrate that the Transport Workers Award 1983 (as amended) did not apply to the respondent's employment for the purpose of calculating his pre-injury average weekly earnings and that it was not appropriate to apply s.5A(6)(c) of the Accident Compensation Act to determine his pre-injury average weekly earnings. It was ordered by the court, inter alia, that the appellant pay to the respondent "weekly payments of compensation at the rate of $785 or the appropriate statutory maximum from the date in October 1997 that the [respondent] became entitled to compensation to present and to continue according to law". It is against that order that the appellant appeals in these proceedings.
On this appeal it is not necessary to deal in detail with the provisions of the Accident Compensation Act 1985 by which the amount of the weekly payments of compensation that a worker is entitled to receive where the worker's incapacity for work results or is materially contributed to by an injury which entitles the worker to compensation under the Act. It is sufficient, for the purpose of this appeal, to state that pursuant to Division 2, Part 4 of the Act the amount is calculated by reference to the worker's pre-injury average weekly earnings.
Pursuant to s.5A(1) of the Act it is provided -
"(1) In this Act, 'the worker's pre-injury average weekly earnings'
means -(a) the average weekly earnings during the 12 months preceding the relevant injury if the worker has been continuously employed by the same employer for that same period; or
(b) the average weekly earnings for the period less than 12 months preceding the relevant injury for which the worker has been continuously employed by the same employer -
calculated at the worker's ordinary time rate of pay for the worker's
normal number of hours per week."Further, as is relevant to this appeal, pursuant to sub-ss.(6)(c) and (d) of s.5A it is provided
"(6) For the purposes of sub-s.(1) -
(c) If the normal number of work hours per week is fixed by an industrial award applicable to a worker, the worker's normal number of hours per week in that work shall be deemed to be the number so fixed; and
(d) If a normal number of work hours per week is not fixed for the worker's work under the terms of the worker's employment the normal weekly number of hours shall be deemed to be the average weekly number of hours worked by the worker during the relevant period under sub-s.(1)."
Pursuant to the order of a Master in these proceedings the questions of law shown by the appellant to be raised by the appeal are stated to be -
(a)(i)
Having regard to s.5A(6)(c) of the Accident Compensation Act 1985, whether the learned magistrate erred in holding that no industrial award applied in respect of the respondent's employment.
(ii) In considering the same, did the magistrate have regard
to incorrect criteria or indicia.(b) How should the respondents
(1) normal number of hours per week;
(2) ordinary time rate of pay
be calculated
Before turning to consider these grounds on this appeal it is necessary to set out the evidence led and tendered before the Magistrate on the hearing and his oral reasons for decisions. From the affidavits filed on this appeal on behalf of the appellant and the respondent it appears that only two witnesses gave evidence before the Magistrate, namely, the respondent and Trevor Andrews who was the managing director of T.J. Andrews Transport Pty Ltd. There was also tendered on the hearing a copy of the Transport Workers'' Award 1983, a copy of the amendment to clause 18 of that Award and pay slips relevant to the respondent in his employment with Pinewood Hauliers Pty Ltd for weeks ending 27 November 1990, 5 December 1990, 12 December 1990 and 19 March 1991.
On this appeal the only source of evidence as to the evidence given before the Magistrate is that referred to in a memorandum exhibited to the affidavit of Bernard Smith who appeared as counsel for the appellant on the hearing before the Magistrates' Court. Although there is filed an affidavit by Malcolm Gray who appeared as counsel for the respondent on the hearing before the Magistrates' Court, his affidavit does not seek to challenge or expand in any way the summary of evidence given before the Magistrates' Court as set out in Smith's memorandum. Accordingly, the only source of that evidence is that as provided by the affidavit of Smith. That material appears on its face to be extremely sparse but it being the only source of the evidence led before the Magistrate it is that to which I must have regard in determining this appeal.
The respondent gave evidence that in 1987 he commenced working with the T.J. Andrews Group of Companies as a truck driver and that by 1991 he was working for Pinewood Hauliers Pty Ltd. He gave evidence that when he commenced work he was paid an hourly rate for work done and that later he received payment by way of a combination of hourly rates and "trip rates" for work done. He said that he was not offered overtime, he did not get paid extra for working on Sundays or public holidays, that he was paid sick leave and holiday pay, that he was not paid if there was no work although sometimes he did work in the workshop if there was no transport work and that for the financial year ended 30 June 1991 he had gross earnings of $40,262 which was approximately $800 per week. He also gave evidence as part of his evidence-in-chief that it was his belief that he was employed under the Transport Workers' Award 1983. In cross-examination the respondent gave evidence that his hourly rate was fixed by the Award, that sick pay, holiday pay, superannuation, bereavement leave was paid in accordance with the award and that public holidays were paid in accordance with the Award and further, that if he had accumulated long service leave he would have been paid that in accordance with the Award. He further gave evidence that a holiday leave loading of 17.5% was paid in accordance with the Award. He further said that the "trip rates" paid by the appellant represented a fair estimate of time actually spent in performing the work and that every facet of his employment was governed by the Award.
On behalf of the appellant, Trevor Andrews gave evidence that he was the managing director of T.J. Andrews Pty Ltd and its group of companies. His evidence was that Pinewood Hauliers Pty Ltd was a member of that group of companies and that it was a respondent to the Transport Workers' Award 1983 and had been so since the mid 1980s. His evidence was that the terms and conditions of employees of Pinewood Hauliers Pty Ltd was governed by the Award; that some time in the mid '80s the company introduced "trip rates" to abbreviate the need for compiling "detailed time sheets", that "trip rates" approximated the number of hours which would normally be spent upon each trip and that at the end of each week the worker was issued with a pay slip on which the trips were converted into hours. Andrews also gave evidence that the respondent was paid holiday pay, sick leave, overtime, bereavement leave, long service leave and a holiday pay loading in accordance with the Award. He gave evidence that the respondent's payment under the Award in 1991 was $403 for a 38 hour per week, that this was a minimum payment to the worker and that if there were not sufficient truck driving hours available or other work during the week he would be paid a minimum of $403 per week. He said that if the worker had already earned $403 for the week he would not be paid any additional payment if there was no work for the remainder of the week. He further gave evidence that in respect of public holidays the respondent was not only paid for the public holiday but also for the work performed on the public holiday.
Pursuant to the Transport Workers'' Award 1983 as tendered, it was provided by clause 5(a) -
"(a) This award shall be binding on the Transport Workers' Union of Australia, its officers and its members, and on those employers whose names are set out in schedule A hereto in respect of their employees whether members of the union or not and who are required to perform work covered by this award."
Pinewood Hauliers Pty Ltd was an employer the name of which is set out in schedule A to the Award.
By clause 18(a) of the Award it is provided that "the ordinary hours of work shall be 40 per week". That period was amended by the amendment as tendered in evidence before the Magistrate which provided that the ordinary hours of work should be an average of 38 per week to be worked out on one of the bases therein set out.
By clauses 19(a) and (b) of the Award it is provided that an employer may require an employee to work reasonable overtime at overtime rates and that for all work done outside ordinary hours the rate of pay shall be time and a half for the first two hours and double time thereafter and that such double time is to continue until the completion of the overtime work. By clause 20 of the Award, it is provided that "all time of duty on any Sunday shall be stand alone and shall be paid for at the rate of double time with a minimum payment of four hours pay at double time". By clause 22 of the Award provision is made for absence from work on account of personal illness or injury by accident without reduction of pay. Clause 23 of the Award makes provision for bereavement leave and provides that an employee shall be entitled to a maximum of two days' leave without loss of pay on each occasion and on the production of satisfactory evidence of the death of those persons identified in the paragraph and being related to the employee. Clause 25 of the Award makes provision for an employee to be entitled without reduction of pay to holidays on days therein identified and which may be described generally as public holidays. Clause 26 of the Award makes provision for an employee being entitled to annual leave and by sub-clause (f) thereof provision is made for the payment of an annual leave loading of 17.5%.
As further appears from the Award the amount to be paid to an employee as a minimum rate is calculated by reference to the type of vehicle driven and the area in which the work was performed. No evidence appears to have been led before the Magistrate to identify under what provision of the Award or how it was calculated that the payment of $403 for a 38 hour per week was arrived at as the minimum payment required to be made by the respondent's employer to him pursuant to the provisions of the Award. It appears that the evidence of Andrews was not challenged that under the provisions of the Award the amount to be paid per week for 38 hours work was $403.
The first three pay slips tendered state under the heading, "Earnings", "chip del. hours 80.272 - amount $850", "superannuation $15.59." The fourth pay slip tendered, being that for the period ended 19 March 1991 and being that closest in point of time to the time at which the respondent alleged he was injured, stated that the gross amount to which the respondent was entitled was $709.03, that the tax on that amount was $176.30 and the net pay was $517.14 - cash. There was also set out on that pay slip particulars of the gross amount of $709.03 being, ordinary hours 16, amount $169.42; time and a half 7.5 hours - amount $119.13; public holidays 7.6 hours - amount $80.48; "chip del. hours 32.109" - $340.00. It is to be observed from these pay slips that the wages paid to the respondent for the periods identified as "chip del. hours" was $10.58 per hour as was the hourly rate identified as "ordinary hours".
In giving his oral reasons for decision the Magistrate said that the question raised for determination in the proceedings was what was the correct rate of the respondent's pre-injury average weekly earnings to be determined by reference to s.5A of the Accident Compensation Act. He found that the respondent's average income during 12 months prior to him sustaining injury in the course of his employment in August 1991 was $785 gross per week. What the evidentiary basis or other basis for such finding was does not appear from the material placed before the court on this appeal. Counsel for the respective parties on this appeal were unable to assist the court as to how this figure was arrived at other than by suggesting that it may have been agreed between the parties. Counsel appearing on this appeal did not appear on the proceedings before the Magistrate's Court.
The Magistrate further found that the base weekly wage fixed by the Transport Workers' Award 1983 at the time that the respondent was injured was $403 gross per week. He said that in order to determine which was the correct amount to be regarded as the respondent's pre-injury average weekly earnings for the purpose of s.5A of the Act it was necessary to determine whether the Award applied to the respondent's employment. He said that in order to determine whether the Award applied to the respondent's employment it was necessary to look at a number of "indicia" to determine whether the plaintiff was in fact employed pursuant to the Award. He stated that there were two ways of looking at "the indicia". The first was on a quantum basis, that is, if there were five indicia of the plaintiff's employment which did not satisfy the award and there were two indicia that did satisfy the Award then he would have to consider that the plaintiff was not employed under the Award. He said that the second way was on a quality basis rather than on a quantity basis to determine the importance of the indicia in relation to the nature of work and the relation with his employment. The Magistrate said that neither of the two ways of looking at whether the plaintiff was employed according to the award was solely conclusive and said that in his opinion it was necessary to apply a test incorporating both tests but he would probably place more weight on the quality aspect rather than the quantity aspect of the indicia. He said that it was not necessary to look at the minute details of the Award but that it was necessary for him to take a "broad brush" approach to determining the question of the plaintiff's entitlement.
The Magistrate said that he accepted the plaintiff's evidence that when he commenced employment with T.J. Andrews Pty Ltd he was employed at a flat hourly rate and that flat hourly rate was not one which came from the Transport Workers' Award but applied in a method outside the Transport Workers' Award. He said he accepted the plaintiff's evidence that it did not matter if the hours which he worked were on weekends or at night or during the day or on public holidays, he was always to be paid the same amount per hour. This, the Magistrate said, was outside clause 18 of the Transport Workers' Award whereby the plaintiff was to work 38 hours per week. He said that the plaintiff's arrangement when he commenced employment was clearly outside the framework of the Award notwithstanding that the rate of pay per hour was determined by reference to the Award. He said that he accepted the plaintiff's evidence that he was later employed by T.J. Andrews Transport Pty Ltd by a combination of hourly rate and trip rate, that he accepted the plaintiff's evidence that once the trip rate was in place he was mainly employed on the trip rate system but sometimes worked on an hourly rate. The Magistrate stated that the trip rate paid by T.J. Andrews Pty Ltd was not embodied in the Transport Workers' Award but he said that notwithstanding that, the trip rate was based on the Award he found that the trip rate was in fact outside the Award. He said that when taking those two major elements into account they overwhelmed the other indicia pointed out by counsel for the defendant such as the payment of sick leave and holiday pay to try and bring the plaintiff within the Award.
The Magistrate said that he found that taking a broad view and notwithstanding the employment relationship, that the plaintiff's earnings were not in accordance with the Transport Workers' Award because he did not work a normal number of hours per week as set out in the Transport Workers' Award. The Magistrate stated that he found that in the circumstances it was inappropriate to apply s.5A(6)(c) of the Accident Compensation Act to determine the level of the pre-injury average weekly earnings, that in the circumstances the Award did not apply to the plaintiff's employment for the purpose of calculating the pre-injury average weekly earnings and that it was therefore appropriate to calculate the same pursuant to s.5A of the Act by reference to the amount earned by the plaintiff rather than by reference to the amount specified under the Transport Workers' Award. He found as a fact that the plaintiff's pre-injury average weekly earnings was $785.
The question to be addressed by the Magistrate in the case before him, when having regard to the provisions of s.5A(1) and (6)(c) of the Accident Compensation Act 1985, was whether an industrial award was "applicable" to the respondent in his employment with Pinewood Hauliers Pty Ltd. at the relevant time. The evidence of the respondent was that in 1987 he commenced working with the T.J. Andrews Group of Companies as a truck driver and that by 1991 he was employed by Pinewood Hauliers Pty Ltd. The payslips tendered on the hearing evinced that in December 1990 and in March 1991 the respondent was employed by the latter company.
The evidence of Andrews was that in 1991 the respondent's pay under the Transport Workers' Award was $403 for a 38 hour week. By the amendment to paragraph 18 of that award the "ordinary hours" of work were specified to be an average of 38 hours. That period did not include any overtime. The date relevant to the question as to whether an industrial award was "applicable" to the respondent in his employment was 12 August 1991 which was the date on which the respondent suffered injury in the course of his employment.
In Catlow v. Accident Compensation Commission (1989) 167 CLR 543 it was held by Deane, Dawson and McHugh J.J. that under s.95(1) of the Accident Compensation Act 1985, as it then was at the time relevant to that case, but which is in similar terms as is relevant to s.5A(1) of the Act now under consideration, when interpreting the expression "calculated at the worker's ordinary time rate of pay for the worker's normal number of hours per week", that the "normal number of hours per week" meant the ordinary or standard hours fixed by the terms of employment excluding overtime and that it was not the number of hours that the worker usually worked. In Robertson v. Accident Compensation Commission (1991) 2 VR 333 the Appeal Division of the Court applying Catlow held that the expression "the worker's ordinary time rate of pay" in s.95(1) of the Accident Compensation Act 1985 as it then was, did not include overtime or shift allowances.
In the circumstances of this case, if the Industrial Award was applicable to the respondent the "normal number of hours per week" under s.5A(1) is the ordinary hours of work fixed by the award and being an average of 38 hours as provided by clause 18 of the same as amended.
The word "applicable" is defined in the Maquarie Dictionary 3rd ed. as "capable of being applied; fit; suitable; relevant". In the New Shorter Oxford Dictionary, "applicable" is defined to include "able to be applied (to a purpose etc); having a reference, relevant".
In my opinion the word "applicable" in s.5A(6)(c) of the Act is used in its ordinary and usual meaning. In the circumstances of this case where the Transport Workers' Award fixed the normal number of hours per week, the question whether the award was "applicable to" the respondent was to be answered and is to be answered by determining whether the Award was capable or able to be applied to or was relevant to the respondent in his employment as a truck driver with Pinewood Hauliers Pty Ltd at the relevant time.
An appeal such as this is limited by s.109 of the Magistrates' Court Act 1989 to an appeal on a question of law. It was submitted on behalf of the appellant that the question whether the Transport Workers' Award, which fixed the normal number of hours per week, was applicable to the respondent was a question of law to be determined by the Magistrate and that accordingly an appeal lay to this court to challenge his conclusion. It was submitted that the application of facts, as found by the Magistrate, to the provisions of the Accident Compensation Act involved a question of law. In making that submission reliance was placed on Fenton v. Thorley [103] AC 443 and Farmer v. Trustees of the late W. Cotton [1915] AC 922.
In Fenton the question that arose for determination was whether a workman who in the course of his employment had turned a wheel rupturing himself had suffered an "injury by accident" within the Workman's Compensation Act 1897. Lord Lindley at p.453 said -
"My Lords, the Workman's Compensation Act, 1897, contains no definition of the word 'accident'; but the interpretation and legal effect of the Act, when applied to ascertain facts, are clearly questions of law as distinguished from questions of fact. I will assume for the present that it is for the plaintiff to prove personal injury caused by an accident. But when personal injury and its cause or causes have been ascertained the question whether such cause or causes amount to an accident within the meaning of the Act is a question of law on which the decision of the County Court judge is not final; and it is not a question of fact on which his decision is not open to appeal."
In Farmer, as appears from the Head Note, a large building once occupied as a hotel was let to a number of tenants, each tenant occupying premises consisting of one or more rooms. Access to all these premises was gained from a central staircase or from passages leading therefrom. All the premises were occupied for business purposes except a caretaker's house on the top floor and an eight roomed dwelling house entered from a passage on the second floor leading from the central staircase. It was held by a majority of the court that the premises were "divided into and let in different tenements" within the meaning of s.13, sub-s.1, of the Customs and Inland Revenue Act 1878 and that the owner of the house was entitled to relief from inhabited house duty in the terms of the sub-section. Lord Parker of Waddington at p.932 stated -
"My Lords, it may not always be easy to distinguish between questions of fact and questions of law for the purposes of the Tax Management Act, 1880, or similar provisions in other Acts of Parliament. The views from time to time expressed in this House have been far from unanimous, but in my humble judgment where all the material facts are fully found, and the only question is whether the facts are such as bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. The question in the present case is whether the facts found by the Commissioners with regards to a block of buildings ... entitles such buildings to the partial exemption from inhabited house duty provided by sub-s.1 of the 13th section of the Custom and Inland Revenue Act, 1878. The question can only be determined by putting a construction on the sub-section in question, and, therefore is one of law, on which the Court of Sessions had jurisdiction to reverse the determination of the Commissioners. The question before your Lordships is whether the Court of Sessions was right in so doing."
This statement of Lord Parker of Waddington in Farmer was considered by Fullagar J in Hayes v. Federal Commissioner of Taxation (1956) 96 CLR 47. At p.51 his Honour stated -
"There are decisions in taxation cases, including decision of the House of Lords, which, to my mind, create serious difficulty in relation to the distinction, which often has to be drawn, between 'questions of fact' and 'questions of law'. For present purposes, however, I think it is sufficient to refer to what was said by Lord Parker of Waddington in Farmer v. Cotton's Trustees, in a passage quoted by Latham C.J. in Commissioner of Taxation v. Miller. His Lordship said:- 'The views from time to time expressed in this House have been far from unanimous, but in my humble judgment where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only'. With the greatest respect, this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). The 'facts' referred to by Lord Parker in the passage quoted are the fact probantia. Where the factum probandum involves a term used in a statute the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law."
The primary submission of senior counsel for the respondent on this appeal was that the finding of the Magistrate that the Transport Workers Award 1983 did not apply to the respondent's employment for the purpose of calculating his pre-injury average weekly earnings was a finding of fact. It was submitted that such finding of fact was open to the Magistrate on the evidence and that on this appeal there could not be raised the question whether the conclusion of fact was against the evidence and the weight of the evidence.
In Green v. Victorian WorkCover Authority [1997] 1 VR 364 Tadgell J.A. having held at p.369 that the right of appeal conferred by s.52(a) of the Accident Compensation Act 1985 was "a right of appeal to the Court of Appeal from (or against) a judgment or decision of the County Court on a question of law raised during the proceedings before the County Court and which is involved in the judgment or decision" his Honour at p.372 said -
"Upon my interpretation of s.52(1) the appeal cannot raise the question whether the conclusion was against the evidence or the weight of the evidence. In order to succeed the appellant must demonstrate that there was no basis on which the Chief Judge could reach the conclusion he did: Transport Accident Commission v. Hoffman [1989] VR 197. Putting it another way, the only question is whether the Chief Judge was bound, as a matter of law, to conclude that the appellant was a worker - i.e. that he was employed by the Wilsons under a contract of service."
As illustrated by the judgment of Phillips, J.A. (which was agreed to by Hedigan, A.J.A.) in S. v. Crimes Compensation Tribunal [1998] 1 VR 83 the decisions dealing with the subject as to what constitutes a "question of law" and what constitutes a "question of fact" when dealing with the application of facts to legislative provisions, are vast in number. In that case Phillips, J.A. at p.88-89 stated three propositions drawn from the extensive list of authorities referred to in his judgment which "may be best employed when seeking to ascertain if a question of law is involved though the complaint stems from the handling of facts below". Those propositions were -
"1. What is the proper meaning, as a matter of construction, of the statutory description which is relevant to the claimant's success or failure is a question of law."
"2. Once the task of construction is over, the question whether the claimant's particular circumstances fall within the relevant statutory description is essentially a question of fact."
"3. Nevertheless, if in determine whether the particular circumstances of the claimant are such as to fall within the relevant statutory description, the fact finding tribunal arrives at a conclusion which was simply not open to it, that is an error of law; and the question whether it arrived at the conclusion which was not open to it is a question of law."
Having stated such propositions his Honour at p.89-90 further stated -
"The result below may have been the product of the tribunal's misapplying the statutory description in a case where the facts that were found could have led only to the conclusion opposite to that reached by the tribunal (and the error in that regard may be exposed in the reasons given for the decision or may lie hidden). Or it may have been that the tribunal's conclusion depended upon a finding of fact which was simply not open to it on the evidence (or other material, if relevant) in which case the conclusion was not open to it ... It is this last that shows how something which is otherwise a finding of fact may become relevant on an appeal which can be brought only on a question of law.
It cannot be said as a matter of legal principle that a determination of fact can never give rise to an error of law, but ordinarily it will not be so unless it can be shown that the fact finding tribunal arrived at a finding which was simply not open to it."
At an early point in the Magistrate's reasons for decision he identified the issue to be determined in the proceedings before him being whether the Transport Workers Award applied to the respondent's employment. By this I understand the Magistrate to have addressed the question whether the Award was "applicable to the respondent" in his employment with Pinewood Hauliers Pty Ltd. As stated, that question was required to be answered by determining whether the Award was capable or able to be applied to or was relevant to the respondent's employment with Pinewood Hauliers Pty Ltd at the relevant time.
That which appears to have been decisive to the conclusion reached by the Magistrate was his acceptance of the respondent's evidence that it did not matter if the hours that he worked in his employment were on weekends or at nights or during the day or on public holidays, he was always paid the same rate per hour and further, that the respondent was paid at a rate calculated on the basis of a "trip rate". He found that both these matters were "outside" the Award and that such matters overwhelmed the other matters such as sick leave and holiday pay paid to the respondent and that taking a "broad view" it was inappropriate to apply s.5A(6)(c) of the Act to calculate the respondent's pre-injury average weekly earnings.
The evidence of Andrews was that "trip rates" was a means of calculating hours worked by a driver without calculating each time the period taken by a driver on a particular trip. The respondent's evidence was that the "trip rate" was a fair estimate of the time actually spent in performing the work. On the evidence, the "trip rate" calculation only related to the means or method of calculating the period worked. As a method of calculating the period worked each week by the respondent in his employment, in my view the fact that such period was calculated by a "trip rate" method was not relevant to whether the Award was "applicable to" the respondent.
It was common to the evidence of the respondent and Andrews that the respondent was paid holiday pay, sick pay, bereavement leave, long service leave and a holiday pay loading in accordance with the Transport Workers Award. The evidence of the respondent was also that he was paid superannuation in accordance with the award. Each of these matters of fact separately and taken into account collectively demonstrated that it was common ground that in these respects the Award was relevant to the respondent's employment with Pinewood Hauliers Pty Ltd and that as such the Award had application to the respondent in such employment.
It was Andrews' evidence that the respondent was paid overtime in accordance with the Award. This evidence is contradicted by the first three payslips tendered. The respondent in respect of each payslip is shown to have worked in excess of 38 hours but there is no difference in the rate of pay for the period worked in excess of 38 hours. The Magistrate accepted the evidence of the respondent that it did not matter whether he worked on weekends or at night or during the day or on public holidays he was paid the same amount per hour. It is to be observed that the relevant payslip for the week 19 March 1991 indicates a rate of pay at "time and a half" and that there was a public holiday payment also made. In this respect, although that which the respondent was paid was not in compliance or in accordance with the Award it does not follow in my view that the Award was not relevant to or that it did not apply to the respondent's employment. Rather, this evidence as accepted by the Magistrate was evidence of the fact that there had been in this respect non-compliance with the Award. The fact that in respect of a period of periods worked by the respondent in excess of 38 hours per week the payment received by him in his employment was not in compliance or in accordance with the Award, could not lead in the circumstances of this case to the conclusion that the Award was not able to be applied to or was not relevant to the respondent in his employment with Pinewood Hauliers Pty Ltd. The evidence common to both parties was, that in the matters that I have identified, the Award was relevant and had application to the respondent in his employment with Pinewood Hauliers Pty Ltd.
As appears from the Magistrate's reasons for decision in reaching the conclusion that he did, he did not address the provisions of the Award and in particular, that which provided that the Award was binding on Pinewood Hauliers Pty Ltd as being a company listed in schedule "A" and its employees.
On it not being in dispute in the proceeding before the Magistrate, but rather it being common to the evidence of both parties that the payments by Pinewood Hauliers Pty. Ltd. to the respondent for sick leave, holiday pay, long service leave, bereavement leave and the payment of a holiday pay loading were in accordance with the relevant Award leads to the only conclusion open that the Award was "applicable" to the respondent. The fact that in respect of payments made to the respondent for work performed in excess of 38 hours did not comply with the Award and that he did not receive payments in compliance with the Award in respect of working on say, for example, Sundays, leads only to the conclusion in my view that in respect of these matters the Award which was relevant to the respondent and applicable to him in his employment with Pinewood Hauliers Pty Ltd was not complied with. In my view, having regard to the evidence common to the parties and not in dispute, it was not open to the Magistrate to conclude that the Award was not applicable to the respondent, rather he was bound on the evidence to conclude that the Award was "applicable" to the respondent within s.5A(6)(c) of the Act. The finding of the Magistrate in the circumstances of the evidence in this case that the Transport Workers Award was not applicable to the respondent constituted an error of law.
It follows that the finding of the Magistrate that the Award was not "applicable" to the respondent pursuant to s.5A(6)(c) of the Accident Compensation Act 1985 must be set aside as must his finding that the respondent's pre-injury average weekly earnings was $785 must also be set aside.
In so concluding the appeal must be allowed and the order made in the Magistrates' Court in the proceedings on 17 July 1998 must be set aside. It is appropriate that I remit the proceedings to the Magistrate for him to determine pursuant to the Accident Compensation Act 1985 the amount of the weekly payments of compensation that the respondent is entitled to receive in respect of his incapacity for work resulting from or being materially contributed to by the injury which entitles him to compensation under the Act, such amount to be calculated on the basis that in determining the respondent's pre-injury average weekly earnings the normal number of hours per week was fixed by the Transport Workers Award which was applicable to the respondent as is relevant pursuant to s.5A(6)(c) of the Act.
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