Islam v Eureka Operations Pty Ltd t/as Coles Express - [2025] NSWPIC 268

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Islam v Eureka Operations Pty Ltd t/as Coles Express [2025] NSWPIC 268
APPLICANT:	Tawfiqul Islam
RESPONDENT:	Eureka Operations Pty Ltd t/as Coles Express
MEMBER:	Parnel McAdam
DATE OF DECISION:	16 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; weekly compensation benefits; calculation of pre-injury average weekly earnings (PIAWE); calculation based on “ordinary hours” including hours worked at penalty rates; calculation of earnings did not include penalty rates; application of legislation as it appeared in 2015; Held – calculation of PIAWE; award for applicant for weekly benefits including indexation made.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s pre-injury average weekly earnings is $620.79. 2. The respondent is to pay the applicant weekly compensation pursuant to ss 37 and 38 of the Workers Compensation Act 1987 in the following amounts: (a) 22 September 2021 to 30 September 2021 at the rate of $511.20; (b) 1 October 2021 to 31 March 2022 at the rate of $517.60; (c) 1 April 2022 to 30 September 2022 at the rate of $527.20; (d) 1 October 2022 to 31 March 2023 at the rate of $544.80; (e) 1 April 2023 to 30 September 2023 at the rate of $567.20; (f) 1 October 2023 to 31 March 2024 at the rate of $580.80; (g) 1 April 2024 to 30 September 2024 at the rate of $591.20; (h) 1 October 2024 to 31 March 2025 at the rate of $603.20, and (i) 1 April 2025 to date and continuing at the rate of $605.60. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

This matter has a long procedural history in the Personal Injury Commission (Commission), but the issue before me is a narrow one.
Mr Islam brought a claim in the Commission for injuries to his back and a psychological injury on 5 December 2022. The matter proceeded through the usual pathway, to conciliation/arbitration on 29 March 2023. The matter was unable to be completed and two further hearing dates were listed. Again the matter was unable to resolve, and the matter was the subject of submissions. Ultimately the Member issued a Certificate of Determination on 28 September 2023.
That decision was the subject of an application for reconsideration by both parties, a number of further teleconferences, and ultimate a further Certificate of Determination issued on 24 April 2024, amending the order for weekly payments made.
All of the determinations and orders were appealed by Mr Islam. In a comprehensive decision dated 10 December 2024, DP Wood, in Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPICPD 80 (Islam No 1) made the following orders:
“1. The Member’s order that the respondent is to pay the appellant’s treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 on production of accounts, receipts and/or current Notice of Charge is confirmed.
2. The Member’s determination that the appellant’s psychological condition was secondary to his physical conditions…

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: [2025] NSWPIC 268
Decision Date: 16 June 2025

CaseChat Overview and Summary

The case of Islam v Eureka Operations Pty Ltd t/as Coles Express involved the applicant, Mr Islam, who sought compensation for weekly benefits under the Workers Compensation Act 1987. The dispute centred on the correct method for calculating his pre-injury average weekly earnings (PIAWE), specifically whether this should include earnings from working at penalty rates. The case was heard in the Workers Compensation Regulator of Victoria.

The primary legal issue before the court was whether the calculation of PIAWE should incorporate earnings from hours worked at penalty rates, as per the Workers Compensation Act 1987. The court was tasked with interpreting the relevant sections of the legislation, particularly in light of how they were applied in 2015. The applicant argued that the earnings from penalty rates should be included in the calculation of PIAWE, while the respondent contended that only ordinary hours should be considered.

The court examined the statutory language and relevant case law to determine the correct interpretation of the legislation. It concluded that the calculation of PIAWE should indeed include earnings from hours worked at penalty rates. Consequently, the court awarded Mr Islam weekly compensation benefits, including indexation, based on the revised calculation of his PIAWE.

Following the court's decision, the respondent was ordered to provide Mr Islam with weekly compensation benefits reflecting the correct calculation of his pre-injury average weekly earnings, inclusive of earnings from penalty rates. The court's ruling provided clarity on the interpretation of the Workers Compensation Act 1987 in relation to the calculation of PIAWE, ensuring that future claims would be assessed accurately.

Orders