Hobart City Council v Webster - [2003] TASSC 36

[2003] TASSC 36

CITATION: Hobart City Council v Webster [2003] TASSC 36

PARTIES:  HOBART CITY COUNCIL
  v
  WEBSTER, Alan Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 104/2002
DELIVERED ON:  10 June 2003
DELIVERED AT:  Hobart
HEARING DATES:  22 May 2003
JUDGMENT OF:  Underwood J

CATCHWORDS:

Workers Compensation - Assessment and amount of compensation - Weekly earnings - Tasmania - Overtime - Whether a requirement of the worker's contract of employment.

Workers Rehabilitation and Compensation Act1988 (Tas), s70(2)(ab)(i).
Aust Dig Workers Compensation [211]

Employment Law - The contract of service and rights, duties and liabilities as between employer and employee - Effect of industrial awards and agreements on contracts of service - Implied terms - Must be necessary to give contract of employment business efficacy.

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; Byrne v Australian Airlines Ltd (1995) 185 CLR 410; Australian National Hotels Pty Ltd v Jager (2000) 9 Tas R 153, applied.
Aust Dig Employment Law [5]

REPRESENTATION:

Counsel:
             Appellant:  I L Hallett
             Respondent:  R M Grueber
Solicitors:
             Appellant:  Page Seager
             Respondent:  Ogilvie Jennings

Judgment Number: [2003] TASSC 36
Number of Paragraphs: 18

Serial No 36/2003
File No LCA 104/2002

HOBART CITY COUNCIL v ALAN ROSS WEBSTER

REASONS FOR JUDGMENT UNDERWOOD J

10 June 2003

The background

The respondent has been an employee of the appellant for about 18 years. He works in the Environmental Services Department of Civic Solutions. On 17 April 2000, he suffered an injury to his back and received workers compensation. Although he recovered sufficiently to return to work, the respondent was not fit enough to go back to his former duties which included working overtime at the Hobart Tip. Accordingly, on his return to work, the respondent was assigned to store work. Unlike the tip, no overtime was involved. However, the appellant paid him a make-up component of the weekly earnings representing the overtime he would have earned had he returned to his pre-injury employment.

The appellant considered that it was not obliged by the law to pay this make-up component and applied to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") for a review of weekly payments. On 11 November 2002, the Tribunal dismissed that application and this appeal is brought from that order of dismissal.

The issue

Central to this appeal is the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s70(2)(ab)(i) which provides:

(2)   The normal weekly earnings of a worker shall be determined in accordance with the following provisions:¾
(a)…;
(ab)in computing normal weekly earnings, any component of the worker's earnings attributed to overtime or excess hours is to be disregarded unless ¾
(i)    the overtime or excess hours was or were a requirement of the worker's contract of employment; and
(ii)    …
(iii)   …".

The Tribunal held that the overtime that was paid to the respondent for working at the tip was "a requirement of the [respondent's] contract of employment".…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] TASSC 36
Decision Date: 10 June 2003

CaseChat Overview and Summary

The case of Hobart City Council v Webster involves an appeal brought by the Hobart City Council against a decision of the Workers Rehabilitation and Compensation Tribunal. The respondent, Alan Ross Webster, has been employed by the appellant for about 18 years and suffered an injury to his back in 2000. He received workers compensation but was not fit to return to his former duties, which included working overtime at the Hobart Tip. Instead, he was assigned to store work, where no overtime was involved. The appellant paid him a make-up component of the weekly earnings representing the overtime he would have earned had he returned to his pre-injury employment. The appellant considered it was not obliged by the law to pay this make-up component and applied to the Tribunal for a review of weekly payments. The Tribunal dismissed the application and the appellant appealed.

The central legal issue in this case is the interpretation of s70(2)(ab)(i) of the Workers Rehabilitation and Compensation Act 1988, which provides that any component of the worker's earnings attributed to overtime or excess hours is to be disregarded unless the overtime or excess hours were a requirement of the worker's contract of employment. The Tribunal held that the overtime paid to the respondent for working at the tip was "a requirement of the [respondent's] contract of employment". The appellant contended that this determination reflected an error of law, as although the respondent used to work regular overtime at the tip in accordance with a roster, this was not a requirement of his contract of employment. The respondent, on the other hand, contended that either upon a proper construction of the provisions of the Act, overtime was a requirement of his contract of employment even though it was not a term of that contract, or that it was an implied term of the contract of employment that the respondent was required to work overtime.

The court found that the overtime paid to the respondent for working at the tip was not a requirement of his contract of employment as specified by s70(2)(ab)(i) of the Act. The court reasoned that the provision refers to overtime that was required to be worked by virtue of the contract of employment, not overtime that was required as a matter of practice or that the employer expected to be worked. The court also found that it was not necessary to imply a term that the respondent was obliged to work reasonable overtime if required by the appellant to do so in order to give the contract of employment effective operation. The court concluded that the order of the Tribunal dismissing the appellant's application for a review of the respondent's weekly payments was erroneous in law and will be quashed.

The court did not make a final order in this case, as the referral merely seeks a determination of whether "the worker's rate of weekly payments ought to be reduced". The court will need to hear counsel before making a final order.

Orders