Holmes v Goodstart Childcare Ltd
[2021] NSWPIC 91
•22 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Holmes v Goodstart Childcare Ltd [2021] NSWPIC 91 |
| APPLICANT: | Paris Elizabeth Holmes |
| RESPONDENT: | Goodstart Childcare Ltd |
| MEMBER: | Ms Rachel Homan |
| DATE OF DECISION: | 22 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Application for reconsideration pursuant to section 57(1) of the Personal Injury Commission Act 2020 of previous orders for the payment of weekly compensation under sections 36(1) and 37(1) of the 1987 Act to account for jobkeeper payments; application of Workers Compensation Amendment (COVID-19 Weekly Payment Compensation) Regulation 2020; where worker found to have no current work capacity; Held- amendments provided by the Regulation do not apply to payments of weekly compensation to workers with no current work capacity under sections 36(1) and 37(1); no statutory basis for providing “credit” to the respondent for payments made under the jobkeeper scheme identified; application for reconsideration declined. |
| DETERMINATIONS MADE: | 1. The application for reconsideration of the Certificate of Determination issued on 18 March 2021 is declined. |
STATEMENT OF REASONS
BACKGROUND
This matter was the subject of a Certificate of Determination issued on 18 March 2021.
A determination was made that the applicant sustained a psychological injury pursuant to
s 4(b)(ii) and s 11A(3) of the Workers Compensation Act 1987 (the 1987 Act).The respondent’s defence pursuant to s 11A(1) of the 1987 Act was found not to have been established.
It was determined that the applicant had no current work capacity as a result of the injury from 10 February 2020 to 8 August 2020.
A determination was made that the applicant’s pre-injury average weekly earnings (PIAWE) figure was $756.99.
In view of these determinations, orders were made for the payment of weekly compensation from 10 February 2020 to 8 August 2020 and incurred medical and related treatment expenses.
On 13 April 2021, the respondent wrote to the Commission seeking reconsideration of the orders set out in the Certificate of Determination to account for payments received by the applicant under the Commonwealth jobkeeper scheme during the period of weekly compensation.
A response to the reconsideration application was received from the applicant on 16 April 2021. The applicant conceded that she was in receipt of jobkeeper payments during part of the period of weekly compensation claimed. The applicant accepted that the payments were required to be taken to be part of the applicant actual gross earnings pursuant to the Workers Compensation Amendment (COVID-19 Weekly Payment Compensation) Regulation 2020 (the Regulation). The applicant agreed that the orders should be amended but in different terms to those proposed by the respondent.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the Certificate of Determination dated 18 March 2021 should be reconsidered – s 57 of the Personal Injury Commission Act 2020 (the PIC Act); and
(b) if so, the appropriate orders for weekly compensation.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents;
(c) documents attached to an Application to Admit Late Documents lodged by the respondent on 13 January 2021;
(d) written submissions lodged by the applicant on 3 February 2021;
(e) written submissions lodged by the respondent on 10 February 2021;
(f) request for reconsideration lodged by the respondent on 13 April 2021, and
(g) response to request for reconsideration lodged by the applicant on 16 April 2021.
Respondent’s submissions
The respondent submits that the applicant was in receipt of jobkeeper payments from 30 March 2020 until 12 July 2020 at a rate of $750 per week.
The respondent submitted that at the hearing on 19 January 2021 the applicant’s counsel stated that, in accordance with the Regulation, that $750 per week was counted as earnings:
“Now by way of clarifying the claim itself, it is a claim for weekly benefits from 10 February 2020 to the 20th of August 2020, Also, Member, just getting this out of the way straight up, you will see at page 131 of the application there are payslips and they identify that the Applicant took personal leave paid for 2.45 hours from the 11th of February 2020, thereafter it turned into personal leave with no pay and then from what I can work out is the 23rd of March 2020 the Applicant was in receipt of jobkeeper payments, now that has to be essentially reverse engineered because as you may recall jobkeeper there was a delay in getting the payments out, so if you look, for example, at the payslip, I’ll find the correct one, yeah the payslip located at page 141 you will see there is essentially back payments for jobkeeper with the last day of the period identified thereon, with the first two week period of jobkeeper ending on the 5th of April 2020 and those jobkeeper payments continued at $750 a week gross until the 12th of July 2020 and in accordance with the Workers’ Compensation Amendment COVID-19 Weekly Payment Compensation Regulation 2020 that $750 a week is counted as earnings.”
The respondent submitted that the applicant conceded her jobkeeper payments should be considered when determining her entitlement to weekly compensation and that these payments were not considered in the Commission’s decision.
The respondent submitted, in accordance with the cl 10(3) of Schedule 3 of the 1987 Act, that:
“A jobkeeper scheme payment received by an injured worker after the date of injury is, for each week to which the jobkeeper scheme payment applies, taken to be part of the worker’s actual gross earnings in relation to that week for the purposes of the definition of “current weekly earnings” in clause 8”.
The respondent submitted that:
“the object of the 1987 Act represents a clear intention to take into account, for the purposes of determining…current weekly earnings of a worker, payments made to the worker in connection with the Commonwealth’s jobkeeper scheme”.
The respondent submitted that the applicant was therefore earning $750 per week whilst receiving jobkeeper payments and this should be considered as “earnings” as provided by clause 10 of Schedule 3 of the 1987 Act and as conceded by the applicant’s counsel during the hearing.
The respondent submitted the applicant should not be entitled to both weekly benefits and jobkeeper payments during this period as this would place her in a better financial position than if the injury had not occurred and would result in an unintended windfall to the applicant.
The respondent requested that Orders (1) and (2) as set out in the Certificate of Determination dated 18 March 2021 be amended to reflect the jobkeeper payments that the applicant received from 30 March 2020 to 12 July 2020 by inserting the phrase:
“…with credit to the Respondent for payments already made between 30 March 2020 and 12 July 2020.”
It was submitted that this would allow the jobkeeper payments to be offset against the weekly payments paid under the Award.
Applicant’s submissions
The applicant conceded that she was in receipt of jobkeeper payments at the rate of $750 per week between 30 March 2020 and 12 July 2020.
The applicant conceded that her earnings through jobkeeper were in excess of 95% of her PIAWE. On this basis it was conceded that the applicant had no entitlement to weekly benefits whilst she was in receipt of jobkeeper. The result of this concession was that there should be an award in favour of the respondent in respect of the claim for weekly benefits for the period 30 March 2020 to 12 July 2020.
The applicant submitted that the Certificate of Determination should be amended to include a determination that “the applicant was in receipt of JobKeeper Payments for the period 30 March 2020 to 12 July 2020 and she has no entitlement to weekly benefits during this period.”
Further, the Commission’s orders should be amended to read as follows:
“1. The respondent to pay the applicant weekly compensation pursuant to s 36(1) of the 1987 Act from 10 February 2020 during the first entitlement period at the rate of $719.14 per week (to be adjusted in accordance with Division 6A of the 1987 Act) to 29 March 2021.
2. There is to be an award in favour of the Respondent in respect of the claim for weekly benefits from 30 March 2021 to 12 July 2021.
3. The respondent to pay the applicant weekly compensation pursuant to s 36(1) of the 1987 Act from 13 July 2020 during the first entitlement period at the rate of $719.14 per week (to be adjusted in accordance with Division 6A of the 1987 Act) until 8 August 2020.
4. The respondent to pay the applicant’s past treatment expenses as claimed and otherwise upon production of accounts, receipts and/or valid Medicare Notice of Charge in accordance with s 60 of the 1987 Act.”
FINDINGS AND REASONS
Reconsideration
Section 57 of the PIC Act provides:
“57 Reconsideration of decisions of Commission
(1) The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.
(2) If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may—
(a)alter the decision to correct the error, or
(b)direct a registrar to alter the decision to correct the error.
(3) Without limiting subsection (2), if the decision is contained in a certificate, the President may—
(a)issue a replacement certificate with the error corrected, or
(b)direct a registrar to issue a replacement certificate with the error corrected.
(4) If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5) If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6) Examples of obvious errors in a decision are where—
(a)there is an obvious clerical or typographical error in the text of the notice or statement, or
(b)there is an error arising from an accidental slip or omission, or
(c)there is a defect of form, or
(d)there is an inconsistency between the stated decision and the stated reasons.”
The reconsideration power under s 350(3) of the 1998 Act, which applied to the former Workers Compensation Commission, was in similar terms to that contained in s 57(1) of the PIC Act. A summary of the principles regarding the exercise that power was set out in Samuel v Sebel Furniture Limited[1] (at [58]) and remains useful in the context of s 57(1) of the PIC Act:
[1] [2006] NSWWCCPD 141.
“58. Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:
1. the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
2. whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include “an award, order, determination, ruling and direction”. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3. whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);
4. one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);
5. reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
6. given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7. depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8. a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
9. the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”
I accept that I have a wide power to reconsider the Certificate of Determination under s 57(1) of the PIC Act, although that power must be exercised fairly with due regard to relevant considerations.
Having regard to the parties’ submissions and the payslips in evidence I accept that the applicant was in receipt of jobkeeper payments from 30 March 2020 to 12 July 2020. I also accept that this was a matter which was discussed both during conciliation and at the arbitration hearing.
The applicant has claimed weekly compensation from 10 February 2020 to 8 August 2020.
I have determined that during this period the applicant had no current work capacity. Having made that finding, s 36 of the 1987 Act relevantly provides:“36 Weekly payments during first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.”
In the second entitlement period, s 37(1) of the 1987 Act relevantly provides:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.”
It may be noted that neither s 36(1) nor s 37(1) provide for a deduction of the “the worker’s current weekly earnings” as is provided, for example, in ss 36(2) and 37(2) in relation to workers who have current work capacity.
The Regulation commenced on 23 October 2020 as was, according to the Explanatory Note intended to amend the 1987 Act to take into account, for the purposes of determining the PIAWE and “current weekly earnings” of a worker, payments made to the worker in connection with the Commonwealth’s jobkeeper scheme.
Clause 10(3) of the Regulation provides:
“(3) A jobkeeper scheme payment received by an injured worker after the date of injury is, for each week to which the jobkeeper scheme payment applies, taken to be part of the worker’s actual gross earnings in relation to that week for the purposes of the definition of current weekly earnings in clause 8.”
The reference to the definition of “current weekly earnings in clause 8” is a reference to cl 8 of Schedule 3 of the 1987 Act. Although that expression is used elsewhere in the 1987 Act, as indicated above, neither ss 36(1) nor 37(1) require consideration of the worker’s “current weekly earnings”.
I am not satisfied that the Regulation therefore makes any amendment to account for jobkeeper payments which is relevant in the present case.
This view is consistent with the SIRA Standard of Practice S 32 “Managing claims during the COVID-19 pandemic”, which states:
“For the purpose of determining weekly payment compensation, any JobKeeper payment made to a worker who has current work capacity may be considered earnings for the purposes of determining the weekly payment of compensation to which the worker is entitled. If a worker has no current work capacity, they will not be entitled to receive the JobKeeper payment.”
It would appear that the determination made by me on 18 March 2021 has the effect that the applicant was not entitled to jobkeeper payments during the period in which she has been found to have no current work capacity. That is not, however, a matter for the Commission to determine. The jobkeeper payments may or may not need to be repaid to the Commonwealth but that would be a matter to be determined by the Australian Tax Office.
The present situation is not dissimilar to that of workers who have received Centrelink payments during a period in which they are subsequently awarded compensation, although I note that the jobkeeper benefit is paid to the employer not directly to the worker.
None of this affects the statutory entitlement to compensation under ss 36(1) or 37(1) of the 1987 Act.
It follows that I am not persuaded that the orders made on 18 March 2021 should be amended in the manner proposed by the applicant.
The respondent has proposed that the orders be amended to “give credit” to the respondent for payments already made. However, the respondent has not identified the statutory basis for this. The applicant was not paid workers compensation for the purposes of s 46, nor were there sick leave payments for the purposes of s 50 of the 1987 Act. No submissions have been made by either party to the effect that weekly payments should be reduced pursuant to s 45 of the 1987 Act, which provides:
“45 Reduction of weekly payments to qualify for other benefits
(1) The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment—
(a) is not payable, or
(b) is reduced to a specified amount or in a specified manner,
if the worker, or any spouse or other person related to the worker, would as a result be qualified to receive any pension, allowance or other benefit under the Social Security Act 1991 of the Commonwealth or under any other Act or law.”
It may be noted that s 45 provides for a reduction of payments in order that “the worker, or any spouse or other person related to the worker” may “qualify” for a benefit. In the present case, the benefit has already been received and by the applicant’s employer.
It follows, for the reasons set out above, that I am not satisfied the discretion under s 57(1) of the PIC Act should be exercised as requested.
SUMMARY
The application for reconsideration is declined.
Rachel Homan
MEMBER
22 April 2021
0