Huntley v Intellilearn Pty Ltd
[2016] WADC 32
•15 MARCH 2016
HUNTLEY -v- INTELLILEARN PTY LTD [2016] WADC 32
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 32 | |
| Case No: | APP:84/2015 | 8 FEBRUARY 2016 | |
| Coram: | STAVRIANOU DCJ | 15/03/16 | |
| PERTH | |||
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Arbitrator's decision quashed | ||
| PDF Version |
| Parties: | JACQUELINE HUNTLEY INTELLILEARN PTY LTD |
Catchwords: | Worker's compensation Appeal from Workers' Compensation Arbitration Service Leave to appeal Whether appeal 'involves a question of law' Employment Whether appellant in more than one employment for the purposes of calculation of Amount B Reasons for decision Whether arbitrator gave adequate reasons for decision |
Legislation: | Workers' Compensation and Injury Management Act 1981 (WA) s 3, s 5, s 18, s 247, sch 1 cl 7, cl 11, cl 14 |
Case References: | Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 Broadcasting Tribunal v Bond (Bond Media Case) [1990] HCA 33; (1990) 170 CLR 321 Mount Lawley Pty Ltd v Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273 Osland v Secretary, the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 Pacific Industrial Co v Jakovljevic [2008] WASCA 60 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Velez Pty Ltd v Tudor [2011] WASCA 218 Wilson v Wilson's Tile Works Pty Ltd [1960] HCA 63; (1960) 104 CLR 328 XCO Pty Ltd v Federal Commissioner of Taxation [1971] HCA 37; (1971) 124 CLR 343 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
INTELLILEARN PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram : ARBITRATOR MENGLER
File No : A 21973 of 2015
Catchwords:
Worker's compensation - Appeal from Workers' Compensation Arbitration Service - Leave to appeal - Whether appeal 'involves a question of law'
Employment - Whether appellant in more than one employment for the purposes of calculation of Amount B
Reasons for decision - Whether arbitrator gave adequate reasons for decision
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) s 3, s 5, s 18, s 247, sch 1 cl 7, cl 11, cl 14
Result:
Appeal allowed
Arbitrator's decision quashed
Representation:
Counsel:
Appellant : Mr M J Lourey
Respondent : Mr M J Civitella
Solicitors:
Appellant : Chapmans
Respondent : Mills Oakley
Case(s) referred to in judgment(s):
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Broadcasting Tribunal v Bond (Bond Media Case) [1990] HCA 33; (1990) 170 CLR 321
Mount Lawley Pty Ltd v Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273
Osland v Secretary, The Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Velez Pty Ltd v Tudor [2011] WASCA 218
Wilson v Wilson's Tile Works Pty Ltd [1960] HCA 63; (1960) 104 CLR 328
XCO Pty Ltd v Federal Commissioner of Taxation [1971] HCA 37; (1971) 124 CLR 343
- STAVRIANOU DCJ:
Introduction
1. From 11 July 2014 the appellant (Ms Huntley) worked for the respondent (Intellilearn) as an education consultant. She alleges that on 27 November 2014 she suffered injuries to her neck and left shoulder in the course of her employment.
2. In the 12 months before the accident Ms Huntley also worked from time to time as a nurse for Select Health Services Pty Ltd trading as Healthcare Australia (HCA).
3. Liability for Ms Huntley's claim for compensation, pursuant to the Workers' Compensation and Injury Management Act 1981 (the Act), was admitted by Intellilearn. However, a dispute arose as to the calculation of the weekly payments to which Ms Huntley was entitled. There was also a dispute as to her entitlement to weekly payments for the period between 29 November 2014 and 9 January 2015.
4. The claim proceeded to arbitration on 1 and 2 September 2015.
5. Ms Huntley now appeals the arbitrator's decision to dismiss her claims. The principal issue upon appeal concerned the way in which the arbitrator dealt with the calculation of the entitlement to weekly payments. Relevantly, it was contended that he erred in concluding that Ms Huntley's earnings from HCA were not to be taken into account.
The grounds of appeal
1 The grounds of appeal are:
The Learned Arbitrator erred in Law by:
1. applying the relevant definition of Amount B in a way that excluded the appellant's earnings from work done for HCA from the proper calculation of weekly payments.
2. finding the appellant was:
(i) engaged in work with HCA 'which … was … of a casual nature';
and/or
(ii) party to contracts for service with (emphasis added) HCA
when that finding was or those findings were not relevant to the issue whether the appellant was relevantly in more than one employment; and
3. as a result of the errors of law described in grounds 1 and/or 2 above, by:
(i) failing to order the respondent pay the appellant weekly payments for partial incapacity from 29.11.2014 to 09.01.2015; or
(ii) alternatively, failing to provide reasons to adequately explain why no weekly payments were ordered for the period 29.11.2014 to 09.01.2015:
Particulars
- (a) the learned Arbitrator held the appellant was, as a result of her injury, partially incapacitated for work with HCA.
2 The hearing before the arbitrator proceeded on the basis of a number of admissions made by Intellilearn. These were as follows:
(1) Ms Huntley is a 'worker' for the purposes of the Act;
(2) Ms Huntley has been employed by Intellilearn on a casual basis since 14 July 2014. Prior to that she was engaged as an independent contractor when work was available and at those times she was paid according to submitted timesheets;
(3) Ms Huntley also has a second job with HCA Australia where she is employed on a casual basis;
(4) Ms Huntley lodged a claim form on Intellilearn dated 13 January 2015 in which she claimed to have suffered an injury to her lower back on 27 November 2014;
(5) Liability with respect to the claim was accepted by Intellilearn's workers' compensation insurer from the first date of certified incapacity (9 January 2015) and payment of compensation commenced pursuant to the provisions of the Act; and
(6) Payments of weekly compensation have been made to Ms Huntley as an Amount B (non-award) worker at the rate of $886.76 gross for the first 13 weeks and thereafter at the gross rate of $753.74.
3 Oral evidence was adduced from Ms Huntley and from Ms Claire Cope, an employee of Intellilearn. The arbitrator found that Ms Huntley gave her evidence in an open and straightforward manner. He accepted her as an honest witness. A similar finding was made in relation to Ms Cope.
4 Ms Huntley's evidence in the arbitration included a written statement dated 1 May 2015. In the statement she said that in 2012 she commenced employment with HCA as an agency nurse. She would be sent to hospitals to perform duties as a neonatal nurse, midwife or general nurse working three to four shifts per week.
5 In cross-examination the issue of her employment by HCA was explored in the following way:
Do you recall when you first started working for HCA? – Yes.
That was when? – That was in around about 2012 that I actually applied to HCA to work for them. I was working for Silver Chain at the time.
I'm quite happy to pass it down to you if you need to see it. There's a copy of the nursing services term of employment with HCA, it's dated 8 November 2012, it says your registration with the company commences on that date. Does that sound about right from memory? – Yes. Yes, that's probably about right.
Did HCA issue a written roster to you at any time? – There was no written rosters, we didn't have written rosters. Everything was done online, so we actually had an app and all your shifts were marked off on that app, so you'd have a diary on your app and that would actually tell you when you were working and when you were where you were working and you just – some of the times it would just put all the shifts openly out and you'd just choose your shifts, but the majority of the time for me because of my roles I was able to choose what shifts I wanted to do.
How far in advance did you get this thing coming through on your app? – I had shifts permanently booked on that app, so they knew my – what I wanted to do a year in advance and so basically I had shifts booked probably in the region of two to four weeks ahead.
But even though you were able to express a preference for the shifts that you wanted to reserve, if I can use that word for it, do you accept that the terms of employment with HCA make it fairly clear, if I can put it in these terms, that there was no guarantee of work being available at any stage? – Yes, there is no guarantee of work being available because you're an agency nurse however there is always work available because you're an agency nurse, so at no point even if somebody had cancelled, even if a hospital cancelled there would always be another hospital waiting for someone to cancel, so we could jump in, so at the end of the day even if you were cancelled from one shift in one hospital you would then get sent to another hospital, so it was very rare you'd actually get cancelled fully off the whole day unless you chose not to transfer to a different hospital and the majority of my work, if you look at my pay, you'll see Joondalup, Joondalup – I'm just trying to think of the others – Joondalup, King Edwards and another public hospital Glengarry, they were the hospitals I worked at, so I was very rarely moved about. Occasionally I'd do Mt Lawley.
6 The evidence established that on the day before the accident (26 November 2014) Ms Huntley had completed a shift for HCA commencing at 3.00 pm and concluding at 9.30 pm.
Leave to appeal - question of law
7 Section 247 of the Act enables a party with leave to appeal an arbitrator's decision to the District Court.
8 Section 247 reads:
Appeal against arbitrator's decision made under Part XI
(1) If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2) Subject to subsection (3), the District Court is not to grant leave to appeal unless —
(a) in the case of an appeal in which an amount of compensation is at issue —
(i) a question of law is involved and the amount at issue in the appeal is both —
(I) at least $5,000 or such other amount as may be prescribed by the regulations; and
(II) at least 20% of the amount awarded in the decision appealed against;
- or
(ii) a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b) in any other case, a question of law is involved.
10 A decision will not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different': Australian Broadcasting Tribunal v Bond (Bond Media Case) [1990] HCA 33; (1990) 170 CLR 321, 353.
11 In Atanasoska, Buss JA said [21]:
If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position. A ground that asserts a decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis. Generally see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [55] and the cases there cited.
12 An appeal 'on a question of law' is not an appeal by way of rehearing; it is in the nature of judicial review, which challenges the legal correctness of what the lower court has done: Osland v Secretary, The Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18].
13 Once it has been established that a ground involves a question of law, it is unnecessary to consider whether additional questions of law arise, as the whole decision of the arbitrator, and not merely the question of law identified, is open to review: XCO Pty Ltd v Federal Commissioner of Taxation [1971] HCA 37 [10]; (1971) 124 CLR 343, 349; Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18].
14 If a question of law is involved and leave to appeal has been granted, the District Court must undertake a 'real review' of the application, but on the materials before the arbitrator. It is not a hearing de novo. The appellant must establish some error, either of fact, law or logic before the court may disturb the arbitrator's findings: Pacific Industrial Co v Jakovljevic [20], [26].
The legislation
15 The purposes of the Act are set out in s 3 as being:
(a) to establish a workers' compensation scheme for Western Australia dealing with —
(i) compensation payable to or in respect of workers who suffer an injury; and
(ii) the management of workers' injuries in a manner directed at enabling injured workers to return to work; and
(iii) specialised retraining programs for injured workers; and
(iv) ancillary and related matters;
and
(b) to establish WorkCoverWA to oversee the operation of the workers' compensation scheme; and
(c) to provide for the resolution of disputes under this Act; and
(d) to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick.
16 Section 5 of the Act contains a number of definitions. However there is no definition of the word 'employment'.
17 Section 5 relevantly reads:
(1) In this Act, unless the contrary intention appears —
'employer' includes any body of persons, corporate or unincorporate, and the legal personal representative of a deceased employer, and, where the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of employment the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the worker whilst he is working for that other person;
the term 'employer' shall extend to any person for or by whom any worker, as defined in paragraph (a) or (b) of the definition of worker, works or is engaged; and
'employer' in relation to liability to pay compensation for or in respect of an injury to a worker, means the employer in the relevant employment;
'worker' does not include a person whose employment is of a casual nature and is not for the purpose of the employer’s trade or business, or except as hereinafter provided in this definition a police officer or Aboriginal police liaison officer appointed under the Police Act 1892; but save as aforesaid, means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or otherwise and whether the contract is expressed or implied, is oral or in writing;
the term 'worker' save as aforesaid, also includes —
(a) any person to whose service any industrial award or industrial agreement applies; and
(b) any person engaged by another person to work for the purpose of the other person's trade or business under a contract with him for service, the remuneration by whatever means of the person so working being in substance for his personal manual labour or services.
19 The definition of 'injury' in s 5 is:
'injury' injury means —
(a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer’s instructions; or
(b) a disease because of which an injury occurs under section 32 or 33; or
(c) a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or
(d) the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or
(e) a loss of function that occurs in the circumstances mentioned in section 49,
but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer;
21 Schedule 1 (cl 7 – cl 14) is annexed to these reasons.
22 It was accepted upon appeal that weekly payments were to be calculated in accordance with Amount B which is defined in sch 1 to relevantly mean:
(c) in any other case, the worker's average weekly earnings (including overtime and any bonus or allowance) over the period of one year ending on the day before the injury occurs in the employment that the worker is in when the injury occurs or, if the worker is then in more than one employment at the end of that period, the sum of the average weekly earnings (including overtime and any bonus or allowance) in each employment, but if the worker has been in an employment for a period of less than one year, the worker's average weekly earnings in that employment are to be determined over that lesser period. (my emphasis)
23 It is this definition and in particular the emphasised phrase which was the subject of grounds 1 and 2 of the appeal.
Statutory interpretation
24 The principles of statutory interpretation may be shortly stated:
1. The primary object is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The provisions must be read in context.
2. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole.
3. A court construing a statutory provision must strive to give meaning to every word of the provision.
4. The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ).
5. Where two constructions are possible, that which is favourable to the worker should be preferred: Wilson v Wilson's Tile Works Pty Ltd [1960] HCA 63; (1960) 104 CLR 328, 335 (Fullagar J).
The hearing and the arbitrator's reasons for decision
25 The arbitrator identified ([13] of the reasons) the issues which required determination as being:
(a) What was the nature of the employment contract between Ms Huntley and each of HCA and Intellilearn at the time of the injury?
(b) Is the Higher Education Industry – Fair Work Commission Academic Staff Award 2010 (the award) (exhibit B18) one within the meaning of the definition of the term 'Industrial Award' in s 5 of the Workers' Compensation and Injury Management Act 1981 (the Act), as it was at the time of the applicant's injury or incapacity?
(c) Would the award apply to the employment of Ms Huntley by Intellilearn?
(d) For the purposes of cl 7 of sch 1 to the Act, should the 'weekly earnings' of Ms Huntley be calculated under cl 11(2) of sch 1 in accordance with 'Amount A' or 'Amount B' cl (c), under cl 11(3) or cl 11(4) of sch 1 of the Act?
(e) If weekly earnings are to be calculated under cl 11(3) of sch 1, was Ms Huntley at the time of the injury or incapacity in concurrent contracts of service with HCA and Intellilearn under which she worked at one time for HCA and at another time for Intellilearn, as referred to in cl 13(1) of sch 1.
(f) If weekly earnings are to be calculated under cl 11(4) of sch 1, are they to include Ms Huntley's earnings with HCA?
26 The arbitrator found against Ms Huntley on all of the identified issues. The only finding challenged on appeal concerned the interpretation of cl 11(4) and, more precisely, whether in the calculation of weekly earnings Ms Huntley's earnings with HCA were to be taken into account.
27 The arbitrator expressly found that the nature of the relationship between Ms Huntley and HCA when working a shift was of a casual nature. His reasons for making that finding were that each shift was on an 'as required' basis and, when worked, was the subject of a separate engagement or agreement in accordance with its terms. Further, he found the work was not regular throughout the period and was uncertain and there was no 'continuing contact of service, or a contract of service at all'. In his view the terms 'really only provided Ms Huntley with the opportunity for an uncertain number of intermittent, sometimes successive, but discreet to each shift, contracts for service'.
28 At [61] the arbitrator stated:
While I accept that the applicant's work with HCA provided her with significant income over a long period and that she may well have continued earning a similar income from HCA work had she not been injured, the fact that such work was not performed under a contract of service with HCA which was current at the time of her injury, and would not, but for her incapacity, have continued to be performed under a concurrent contract of service, means that the respondent is not obliged to include in the applicant's weekly compensation a component to compensate her for the loss of the capacity to continue to receive those HCA earnings.
29 When considering the construction of cl 11(4) and Amount B, the arbitrator stated [62] - [65]:
Clause 11(2) provides that 'Amount B'(c) means, relevantly, the worker's average weekly earnings over the period of one year ending on the day before the injury occurs in the employment that the worker is in when the injury occurs, or if the worker is then in more than one employment at the end of that period, the sum of the weekly earnings in each of the employment …
The term 'employment' is not defined in the Act, but the term 'employer' is defined to extend 'to any person for or by whom any worker, as defined in par (a) or (b) of the definition of "Worker", works or is engaged …'.
The term 'worker' is defined in s 5 of the Act, inter alia;
The term 'worker' save as aforesaid, also includes -
(a) Any person to whose service any industrial award or industrial agreement applies; and
(b) Any person engaged by another person to work for the purpose of the other person's trade or business under a contract with him for service, the remuneration by whatever means of the person so working being in substance for his personal manual labour or services …
The ordinary meaning of the word 'employ' is to 'give work to (someone) and pay them for it', 'make use of'. The ordinary meaning of the word 'engage' is, relevantly, 'employ or hire'; enter into a contract 'to do'. The word 'employment' is defined as 'the action of employing or the state of being employed, a person's work or profession' – Oxford Compact English Dictionary 2nd ed.
30 The arbitrator found that on the day of her injury, Ms Huntley was working under a contract of service for Intellilearn and was, therefore, in its employ. He found that when working a shift in the HCA employment she was in casual employment and, although she worked in that employment the day before her injury, was then registered for future employment with HCA, and had booked to work in that employment on days after the day of her injury, she was not in that employment on the day of her injury. Having found that she was not in the employ of HCA on the day of the injury, he concluded that the HCA earnings were not to be taken into account in the calculation of weekly payments.
The disposition of the grounds of appeal
Grounds 1 and 2
31 Ms Huntley's submission is that the word 'employment' in the definition of Amount B in cl 11(2)(c) needed to be given its ordinary meaning. Accordingly, the interpretation was not assisted by any consideration, as the arbitrator had done, of whether the particular engagement was a contract of service or a contract for service.
32 Intellilearn submitted that the arbitrator was correct in concluding that for the purpose of calculating Amount B Ms Huntley's earnings whilst employed by HCA were not to be considered. This was because:
(a) Her engagement by HCA was casual in nature;
(b) She could accept or refuse to work shifts offered to her by HCA at her discretion;
(c) Pursuant to the terms of her engagement by HCA each individual shift represented a separate 'contract' with each contract ending at the conclusion of the relevant shift;
(d) As at 23 November 2014, the day before the injury of 24 November 2014, she was not 'then in more than one employment at the end of that period' for the purposes of cl 11(2) (Amount B definition).
33 The calculation required by the definition of Amount B is based upon average weekly earnings over the period of one year ending on the day before the injury occurs. Where the worker is in more than one employment at the end of that period, then it is the sum of the average in each employment. Whether a worker is in more than one employment is determined at the end of 'that period'. That is the day before the injury which in this case was 26 November 2014. It is relevant to note that it was accepted that on that day Ms Huntley did work for HCA and also remained employed by Intellilearn. The fact of her employment with HCA on the day before the accident appears to have been overlooked by the learned arbitrator in his consideration of the issues.
34 The arbitrator was referred to the ordinary meaning of the word 'employment' and concluded that for the purpose of the interpretation of Amount B 'employment did not include an engagement of a casual nature'. There are a number of reasons why the approach taken by the arbitrator was, with respect, erroneous.
35 First, the ordinary meaning of the word would include a person engaged on a casual basis; in other words, a person the subject of a contract for services.
36 Secondly, there was no reason to adopt a restrictive definition of employment in preference to the adoption of the natural and ordinary meaning of the word. To determine that because Ms Huntley's engagement with HCA was casual she was not in employment with HCA on the day she was injured was likewise erroneous. To limit the word 'employment' as he did to contracts of service was an error of law.
37 Thirdly, in context the natural and ordinary meaning is to be preferred.
38 Fourthly, the definition contended for by Ms Huntley accords with the objects of the Act. Section 5 of the Act contains definitions of the words 'employer', 'injury', 'relevant employment' and 'worker'. None of these definitions in any way suggest that there should be any limitation upon the definition of the word 'employment' as imposed by the arbitrator. The word 'worker' includes any person engaged by another person to work for the purpose of the other person's trade or business under a contract with him for service, the remuneration by whatever means of the person so working being in substance for his personal manual labour or services. A worker is not limited in the Act to a person engaged pursuant to a contact of service. It extends to workers engaged pursuant to a contract for service.
39 Fifthly, the word 'employment' is used on a number of occasions in the Act. In no provision of the Act is there any attempt to define or limit the scope of the definition of the word.
40 Sixthly, the arbitrator's interpretation imposes an unnecessary restriction upon the words 'in each employment' and, in effect, in the case of a casual worker, requires the worker to prove he or she would have worked in the casual employment on the day the worker was injured in the respondent's employment which is contrary to, and inconsistent with, the meaning of 'casual worker': cl 14 of sch 1. It is unnecessary for the appellant to show she was in the employment of the casual employer on the day of the injury. What Ms Huntley was required to demonstrate was that she was incapacitated (cl 7) and entitled to a weekly payment equal to the weekly earnings calculated in accordance with sch 1. In this case Ms Huntley was incapacitated for her pre-incident work with two employers and from earning wages from two employers.
41 Seventhly, Ms Huntley was employed by two employers. Her engagement by HCA had all the hallmarks and characteristics of employment. She was registered for future employment. She was booked to work in that employment in the days after her injury. The fact that each shift constituted a separate engagement does not derogate from the fact that she was in employment with HCA.
42 The arbitrator's interpretation of cl 11 was erroneous. The error was one of law and I would grant leave to appeal and allow the appeal on that basis.
Ground 3
43 This ground challenges the arbitrator's finding that Ms Huntley had failed to prove that between 29 November 2014 and 9 January 2015 she was incapacitated for work with Intellilearn.
44 The arbitrator in dealing with Ms Huntley's evidence said, relevantly [11] - [12]:
In my view the applicant gave her evidence in an open and straight forward manner and I accept her as an honest witness. She said that during the period she managed her medication and rest so that she could safely complete the shifts which she did undertake with HCA and I am satisfied that what she did in the period was, in her then circumstances, the best she could reasonably do vis a vis the HCA work. I accept her evidence that there was no work available from the respondent during the period and she did not seek any work elsewhere. However, I am not satisfied that she was incapacitated for work with the respondent, had some been offered to her.
In my view the applicant was, as a result of her injury, partially incapacitated for work with HCA which was part of the labour market in which she was working or might reasonably be expected to have worked during the period. If her earnings with HCA should be taken into account for compensation purposes during the period, it should be on the basis of what they would have been with HCA, had she worked all the shifts accepted by her.
45 Having made the observations contained in [11] and [12] above, the arbitrator returned to the issue where he said [66] – [67]:
As indicated above, it is my view that, on the day of her injury, the applicant was working under a contract of service for the respondent and was, therefore, in the employment of the respondent. When working a shift in the HCA employment she was in casual employment and, although she worked in that employment the day before her injury, was then registered for future employment with HCA, and had booked to work in that employment on days after the day of her injury, she was not in that employment on the day of her injury. In my view neither the 'restitutionary principle' nor the 'beneficial presumption or principle' can be applied to assist the applicant to recover by way of worker's compensation what is not covered under the Act and should probably have been covered by personal accident insurance.
It follows from the above that the applicant is not entitled to any compensation for the period mentioned in paragraphs 8 to 12 above or for any compensation additional to what she has been paid from 9 January 2015 and that her claim should be dismissed.
46 The arbitrator described the gist of Ms Huntley's evidence being that during the period from 29 November 2014 to 9 January 2015 she continued to experience a fluctuating level of symptoms in her left hand, arm, shoulder and neck but she was not aware of the real nature or full significance of her injury which, based on advice from the Joondalup Health Clinic, she thought had real prospects of resolving spontaneously with rest and conservative treatment and medication.
47 It was not in issue that in the relevant period Ms Huntley had some capacity to work. Indeed, she was able to exercise that capacity in her employment with HCA.
48 The arbitrator noted that there was no work available from Intellilearn at that time because Edith Cowan University was closed. He observed that the schedule of Ms Huntley's earnings with HCA (exhibit B13) showed that she worked shifts on 11, 18, 20, 21, 23 and 30 December 2014 and 5, 7 and 8 January 2015. Ms Huntley registered sick for, or withdrew from, shifts with HCA on 1, 2, 5, 12, 14, 15, 17 and 19 December 2014. She worked shifts with HCA on 11, 18, 20, 21, 23 and 30 December 2014 and 5, 7 and 8 January 2015.
49 The arbitrator further observed that Ms Huntley admitted in her evidence that, in the shifts she did work with HCA during the period, she was able to do all of her duties, save those very few which might involve lifting items heavier than about 5 kg. With these items, and some of a lesser weight, she was readily able to obtain assistance.
50 Ms Huntley had the burden of proving that she was either totally or partially incapacitated during the relevant period. The arbitrator found Ms Huntley was partially incapacitated.
51 Intellilearn's case on appeal was that the pay records demonstrated a capacity to work which she did on the days identified above. It was submitted that the HCA work was no more strenuous than the Intellilearn work and, accordingly, Ms Huntley had the relevant capacity to perform for Intellilearn.
52 At common law the function of reasons is to give effect to any right of appeal, to enable an appeal court to determine whether or not an appealable error was made, and to allow the parties to understand why they were or were not successful: Mount Lawley Pty Ltd v Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273 [27]. The common law principles have to be applied in light of and subject to s 213(4) of the Act: Velez Pty Ltd v Tudor [2011] WASCA 218 [58].
53 The arbitrator's reasons were not altogether clear as to why Ms Huntley was not entitled to payment for partial incapacity. The arbitrator's conclusion appears to rest upon his interpretation that in calculating entitlement any income received from HCA was irrelevant. As noted, his approach was, with respect, erroneous.
54 The arbitrator's dismissal of the claim is in the face of the clear finding made of partial incapacity.
55 Whether or not work was available to Ms Huntley with the respondent was irrelevant. Before the accident she was able to work for Intellilearn and HCA. Subsequent to the accident she was partially incapacitated. She established that to be the case and is entitled to compensation for the period between 29 November 2014 and 9 January on the basis she was partially incapacitated.
Conclusion
1. There should be leave to appeal.
2. The appeal should be allowed.
3. The decision of the arbitrator should be quashed.
Annexure
Workers' Compensation and Management Act 1981 - sch 1
7. Total or partial incapacity
(1) Subject to section 56 and subclause (3) when total incapacity for work results from the injury a weekly payment during the incapacity equal to the weekly earnings of the worker calculated and varied in accordance with this Schedule.
(2) Subject to section 56 and subclause (3), where partial incapacity for work results from the injury, a weekly payment during the partial incapacity equal to the amount by which the total weekly earnings of the worker calculated and varied in accordance with this Schedule would exceed the weekly amount exclusive of payments for overtime or any bonus or allowance which he is earning or is able to earn in some suitable employment or business after the occurrence of the injury.
(3) An entitlement of a worker to weekly payments for an injury under this Act ceases if and when the total weekly payments for that injury reaches the prescribed amount, unless an arbitrator makes an order to the contrary under section 217, and there shall be no revival of, or increase in, that entitlement upon any subsequent increase in the prescribed amount.
(4) Nothing in subclause (3) affects the liability of an employer for, and the entitlement of a worker to, expenses as are provided for in clauses 9, 17, 18, 18A, and 19 but subject to the limitations on those expenses as provided in clauses 17(1) and 18A(1CA) and (1C).
(5) Unless otherwise authorised by WorkCover WA, compensation shall be paid by the employer to the worker at the employer's usual place of payment of wages on the employer's usual pay days or, at the request of the worker shall be sent by prepaid post to the worker's address.
(6) A worker when fulfilling any requirement of an arbitrator made under section 156B, is deemed for the purposes of this clause to be totally incapacitated.
8. Deemed total incapacity
Where a worker who has so far recovered from his injury as to be fit for employment of a certain kind satisfies an arbitrator that he has taken all reasonable steps to obtain, and has failed to obtain, that employment and that the failure is a consequence, wholly or mainly, of the injury, the arbitrator may, without limiting the arbitrator's powers of review, order that the worker's incapacity be treated, or continue to be treated, as total incapacity, for such period, and subject to such conditions, as the order may provide.
9. No incapacity — medical expenses
Where a total or partial incapacity for work does not result from the injury but the worker is obliged to obtain medical or surgical, dental, physiotherapy or chiropractic advice or treatment, clauses 17, 18, 18A, and 19 apply in so far as they may be made applicable.
10. Absence from work for medical attendance
Where absence from work arises from a necessary attendance for a medical or like purpose that is authorised or required under this Act or from an unavoidable delay in the provision, repair, or replacement of any artificial aid of the kinds referred to in clause 17 and without which the worker is unable to work, the employer shall pay a weekly payment or portion thereof at a rate equivalent to the rate that applies for total or partial incapacity.
11. Terms used
(1) Subject to clauses 12 to 16, for the purposes of this Schedule weekly earnings has the meaning given by this clause.
(2) In this Schedule —
'Amount A' means the rate of weekly earnings payable, at the time of the incapacity, for the appropriate classification under the relevant industrial award, or which would have been payable if the relevant industrial award were still in operation, plus —
(a) any over award or service payments paid on a regular basis as part of the worker's earnings; and
(b) overtime; and
(c) any bonus or allowance;
'Amount Aa' means the rate of weekly earnings payable, at the time of the incapacity, for the appropriate classification under the relevant industrial award, or which would have been payable if the relevant industrial award were still in operation, plus —
(a) any over award or service payments paid on a regular basis as part of the worker's earnings; and
(b) any allowance paid on a regular basis as part of the worker's earnings and related to the number or pattern of hours worked by the worker; and
(c) any other allowance prescribed by the regulations;
'Amount B' means —
(a) in the case of a director who is a worker for a company other than a company that is exempt under section 164 —
(i) the average weekly earnings of the director over the period in respect of which a statement was last made in respect of the director under section 160(2b), determined by averaging the aggregate amount so stated; or
(ii) if a statement has not been made in respect of the director under section 160(2b), the average weekly earnings of the director determined under subclause (2a);
- and
(b) in the case of a director who is a worker for a company that is exempt under section 164, the average weekly earnings of the director determined under subclause (2b); and
(c) in any other case, the worker's average weekly earnings (including overtime and any bonus or allowance) over the period of one year ending on the day before the injury occurs in the employment that the worker is in when the injury occurs or, if the worker is then in more than one employment at the end of that period, the sum of the average weekly earnings (including overtime and any bonus or allowance) in each employment, but if the worker has been in an employment for a period of less than one year, the worker's average weekly earnings in that employment are to be determined over that lesser period;
'Amount C' means, during a financial year —
(a) the amount obtained by multiplying by 2 the average of the amounts that the Australian Statistician published as the all employees average weekly total earnings in Western Australia for pay periods ending in the months of May, August, November and February preceding the financial year; or
(b) if any relevant amount of earnings is not published, the amount obtained by varying Amount C for the preceding financial year in accordance with the regulations;
'Amount D' means the minimum rate of weekly earnings payable, at the time of the incapacity, for the appropriate classification under the relevant industrial award, or which would have been payable if the relevant industrial award were still in operation;
'Amount E' means the minimum weekly earnings to which the worker would have been entitled, at the time of the incapacity, under the Minimum Conditions of Employment Act 1993;
'bonus' or 'allowance' means any bonus or incentive, shift allowance, week-end or public holiday penalty allowance, district allowance, industry allowance, meal allowance, living allowance, clothing allowance, travelling allowance, or other allowance;
'earnings' includes wages, salary and other remuneration;
'overtime' means any payment for the hours in excess of the number of ordinary hours which constitute a week's work.
(2a) For the purposes of paragraph (a)(ii) of the definition of Amount B the average weekly earnings of a director of a company are to be determined —
(a) if the director has been a director of the company for a period of less than one year, by averaging the earnings paid to the director by the company over that period ending on the day before the injury occurs as a worker of the company; and
(b) if the director has not been paid any earnings by the company before an injury occurs as a worker of that company, by averaging the estimate of earnings of the director furnished by the company under section 160(2a); and
(c) otherwise, by averaging the earnings paid to the director by the company over the period of one year ending on the day before the injury occurs as a worker of the company.
(2b) For the purposes of paragraph (b) of the definition of Amount B the average weekly earnings of a director of a company are to be determined —
(a) if the director has been a director of the company for a period of less than one year, by averaging the earnings paid to the director by the company over that period ending on the day before the injury occurs as a worker of the company; and
(b) if the director has not been paid any earnings by the company before an injury occurs as a worker of that company, by estimating the average weekly earnings on the basis of any relevant contract, award or agreement with the company; and
(c) otherwise, by averaging the earnings paid to the director by the company over the period of one year ending on the day before the injury occurs as a worker of the company.
(2c) The earnings referred to in subclauses (2a) and (2b) are to be verified, to the extent practicable, by supporting particulars provided by the company.
(3) In the case of a worker whose earnings are prescribed by an industrial award when the injury occurs, weekly earnings are —
(a) for the 1st to the 13th weekly payments: Amount A but not more than Amount C or less than Amount D;
(b) for weekly payments after the 13th: Amount Aa, or a lesser amount determined in accordance with the regulations, but not more than Amount C or less than Amount D.
(4) In the case of a worker to whom subclause (3) does not apply, weekly earnings are —
(a) for the 1st to the 13th weekly payments: Amount B but not more than Amount C or less than Amount E;
(b) for weekly payments after the 13th: 85% of Amount B, or a lesser amount determined in accordance with the regulations, but not more than Amount C or less than Amount E.
(5) Subject to subclause (6) —
(a) the references in the definition of Amount A in subclause (2) to overtime and any bonus or allowances; and
(b) the references in the definition of Amount Aa in subclause (2) to allowances,
are references to those items averaged over the period of 13 weeks ending at the date of incapacity.
(6) If the worker was totally or partially incapacitated from working or for any other reason did not work during any part of the period of 13 weeks mentioned in subclause (5), that part is to be disregarded in calculating the average amount per week that the worker was paid over that period.
(7) Regulations made for the purposes of subclause (3)(b) or (4)(b) may provide for lesser amounts (but not less than Amount D or E, whichever is applicable) to be determined in respect of weekly payments after the 13th, 26th or 52nd, or after such other numbers of weekly payments as are prescribed.
12. Part-time worker, deductions in respect of
In respect of employment to which clause 11(3) applies, in the case of a part-time worker employed solely in the employment in which the injury occurs, a proportionate deduction shall be made in such weekly earnings to the extent that the hours worked by him each week are less than the number of hours stated in the industrial award as ordinary hours which constitute a week's work.
13. Concurrent contracts, deductions in respect of
In respect of employment to which clause 11(3) applies, in the case of a worker who had entered into concurrent contracts of service with 2 or more employers under which he worked at one time for one such employer and at another time for another such employer and —
(1) under which the total number of hours worked each week by him are less than the number of hours stated in the industrial award relating to the employment in which the injury occurs as ordinary hours which constitute a week's work, a proportionate deduction shall be made in such weekly earnings to the extent the total number of hours worked by him are so less; or
(2) under which the total number of hours worked by him, discounting in respect of each of the employments overtime or any bonus or allowance, are equal to or more than the number of hours stated in the industrial award relating to the employment in which the injury occurs as ordinary hours which constitute a week's work, no deduction shall be made.
14. Casual or seasonal worker, weekly earnings of
In the case of a casual or a seasonal or other worker who is ordinarily employed for only part of the year, weekly earnings means that fraction of the worker's weekly earnings calculated and varied in accordance with this Schedule as represents the same ratio that the number of weeks that he normally works each year bears to 52.
0
17
1