Islam v Eureka Operations Pty Ltd t/as Coles Express

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 is confirmed.
3. The Member’s determination of the appellant’s pre-injury average weekly earnings is revoked.
4. The matter is remitted to a different member for the calculation of the appellant’s entitlement to weekly payments of compensation in accordance with these reasons.”
The matter was remitted to me for determination in accordance with order 3. Before the matter came on for preliminary conference, Mr Islam sought reconsideration on two occasions, which were dealt with in Islam v Eureka Operations Pty Ltd t/as Coles Express (No. 2) [2025] NSWPICPD 23 and Islam v Eureka Operations Pty Ltd t/as Coles Express (No. 3) [2025] NSWPICPD 24.
Mr Islam was self-represented on appeal and remains self-represented on this remitter application, to determine the calculation of his pre-injury average weekly earnings (PIAWE).
Mr Islam was employed by the respondent as a night shift worker. He suffered injury to his lower back on 11 July 2015, when he was lifting a bin liner out of a bin. Treatment ensued that is of no relevance to the issue before me. Mr Islam then suffered a secondary psychological condition, which again is not an issue before me. That issue was extensively ventilated before the previous Member, with those aspects of the decision being confirmed on appeal.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) the applicant’s entitlement to weekly compensation, based on the calculation of PIAWE.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I have set out the extensive procedural history of this matter, prior to the remitter before me, above. Upon remitter, the matter was listed for a preliminary conference on 5 May 2025. Discussions on that occasion included the scope of the remitter and the applicant’s position as a self-represented litigant. The applicant has been unable to obtain legal representation and is again proceeding as self-represented. During discussions at the preliminary conference, it was agreed that it would be appropriate to call for written submissions on the issue without the need for a conciliation/arbitration conference. Accordingly, I issued a direction for written submissions, starting with the respondent.

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, and
(c)    documents attached to the respondent’s submissions, being the enterprise agreement entered in Fair Work Australia, and an earnings history report.

SUBMSISIONS

The parties, pursuant to my direction, have put on written submissions starting with the respondent. After setting out a helpful and extensive history of the litigation in this matter, the respondent points out that the relevant earning period for the calculation of PIAWE for an injury sustained on 11 July 2015 was 10 July 2014 to 10 July 2015. During that period, the applicant was remunerated at a rate of $20.607 per hour.
The respondent notes the determination of DP Wood in Islam means that “ordinary hours” means the hours worked by the applicant, exclusive of any penalty rates attached to those hours. The respondent then goes on to summarise the ordinary hours worked by Mr Islam, with reference to the earnings history report. The respondent provides a table setting out the period of incapacity, the proposed PIAWE and weekly payment relevant for that period, with reference to the appropriate indexation pursuant to s 82A of the 1987 Act.
The applicant provided submissions in response on 2 June 2025. The submissions purport to address the calculation of PIAWE by the respondent, but also raise a number of other issues. The applicant seeks confirmation of PIAWE at $816.60 per week, resumption of weekly payments beyond 260 weeks, and correct indexation from 22 September 2021.
The applicant submits that for the period 13 July 2014 to 10 July 2015, he worked 1,754 hours with gross earnings of $42,566.97. This, the applicant submits, equates to a gross earning of $818.60 per week. The applicant submits that the respondent has failed to index PIAWE in accordance with s 82A of the 1987 Act. The applicant then provides a calculation, which appears to be based on a 2.5% annual CPI increase, for a PIAWE figure of $948.99 per week as of 22 September 2021, which he the projects forward until 1 April 2027.
The applicant then raises other issues not relevant to the dispute before me and inconsistent with my direction calling for submissions, including in respect of:
(a)    an Application to Resolve a Dispute that will be lodged, in respect of a claim for primary psychological injury;
(b)    the respondent’s “non-compliance” with various sections of the legislation;
(c)    the correction of a “material fact” being the date of cessation of employment, and
(d)    a documented work history, up to 26 August 2020.
The applicant then indicates that the respondent has submitted “false information” about the applicant’s employment, requesting that the Commission take certain steps including to “summon” all relevant internal Coles documents and award costs to the applicant. The applicant goes further to request that the Commission compel the production of a series of documents relating to an appointment with Dr Bentivoglio.
Although invited to by direction, the respondent did not provide any further submissions.

FINDINGS AND REASONS

Before dealing with the substance of the issue in dispute in this case, it is appropriate that I address and dispense with the additional and irrelevant representations made by the applicant. As is abundantly clear from the remitter order and reasons of DP Wood in Islam, as well as my direction for submissions and the discussions that occurred at the preliminary conference in this matter, the issue for determination is limited to the calculation of PIAWE and consequent order for weekly payments.
Issues concerning further proceedings, independent medical examinations that have occurred or are occurring, and anything to do with issues determined in previous proceedings (and confirmed or not revoked on appeal) are irrelevant to that issue. The applicant’s request that the Commission take certain steps including calling for the production of documents possessed by the respondent is rejected. The section to which the applicant refers in support of that request (s 355 of the 1998 Act) has been repealed and did not, in any event, provide any power consistent with the applicant’s request. Further, the power of the Commission to order costs does not exist. The Commission’s costs jurisdiction was removed as part of changes to the legislation made in 2012 (except for exempt workers, which Mr Islam is not).

The calculation of PIAWE

The date of injury in this case is 11 July 2015. That finding was made by the previous Member and was not disturbed on appeal. This is consistent with the pleaded date of injury to the back and represents a frank date of injury (as opposed to a disease). Any representations of the applicant concerning periods worked and periods paid up until August 2015 are irrelevant to the issue for determination before me.
In order to determine PIAWE in this case, I must apply the legislation as it was at the time of injury. PIAWE was then defined in s 44C:
“(1) In this Division, pre-injury average weekly earnings, in respect of a relevant period in relation to a worker, means the sum of:
(a) the average of the worker’s ordinary earnings during the relevant period (excluding any week during which the worker did not actually work and was not on paid leave) expressed as a weekly sum, and
(b) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).”
Section 44D relevantly provided:
“(1) Subject to this section, a reference to the relevant period in relation to pre-injury average weekly earnings of a worker is a reference to:
(a) in the case of a worker who has been continuously employed by the same employer for the period of 52 weeks immediately before the injury, that period of 52 weeks, or
(b) in the case of a worker who has been continuously employed by the same employer for less than 52 weeks immediately before the injury, the period of continuous employment by that employer.”
In Wells, DP Wood dealt with the issue of “ordinary hours” in the following terms:
“Taking those clauses into account, I am of the view that the appellant’s “ordinary hours” as defined in the 2011 Fair Work Agreement and for the purposes of ss 44C, 44G and 44H of the 1987 Act includes the hours worked on those additional days, exclusive of the penalty rates attached to any of those hours.”
Before DP Wood on appeal, the applicant put forward a PIAWE figure of $894.94. DP Wood suggested that “the figure put forward by the appellant may not be accurate, it is unclear whether the appellant has applied indexation to his alleged entitlement”. The respondent put forward a different figure, which was accepted by the previous Member:
“The pre-injury average weekly earnings figure put forward by the respondent, which the Member accepted, was $495.16. That figure was arrived at by multiplying the appellant’s hourly rate by the appellant’s core 24 hours. That approach was in error and the Member’s determination of the appellant’s pre-injury average weekly earnings figure is revoked.”
The respondent has now proposed a weekly hour figure of 30.125 hours, being a weekly average of the total hours worked in the period from 10 July 2014 to 10 July 2015. The applicant reiterates the same figure of $818.60 per week. There is a discrepancy between the parties in respect of the hours worked in the relevant period. The applicant’s calculations are based on 1,754 hours, whilst the respondent’s figure is calculated based on 1,566.50 hours.
The applicant has not disputed the accuracy of the earnings history report attached to the respondent’s submissions (and previously lodged in the proceedings). I have reviewed that document, and the extracted spreadsheet, closely. Mr Islam worked varied hours each week. Some of those hours attracted penalties of “0.3” and “0.5”. Mr Islam was also paid “Red Dust” of $2 each week. I’m not sure what this is for but am satisfied that it does not constitute a payment for ordinary hours. The amount paid for penalties each week is excluded in accordance with DP Wood’s finding at [224]. This means for the purposes of calculating PIAWE, those hours that attract penalty rates will be included as part of Mr Islam’s hours worked for the week/year, but the additionally amount attached to those hours will not be included.
That means that Mr Islam’s submissions cannot be accepted as a starting point. It is not as simple as dividing Mr Islam’s yearly salary by the number of hours worked as some of those hours included penalty rates (roughly 14 hours per week attracting the higher hourly rate).
My calculation of the number of ordinary hours worked by Mr Islam is the same as the respondent’s, that is 1566.5 hours over the period. That is 30.125 hours per week. The team member agreement, under which Mr Islam was employed, provided a weekly wage on 1 July 2014 of $783.05 (cl 8.1.2). The hourly rate of pay is the ordinary weekly rate of pay divided by 38 (see cl 3.1.9), which is $20.607 per hour. That represents a weekly figure of $620.79. This is the figure set out in the respondent’s submissions. I find the applicant’s PIAWE was $620.79.
It is not clear to me where Mr Islam obtained either his annual gross earnings of $42,566.97 as that is not explained. Regardless, it is clear that the applicant’s gross earnings is not an appropriate starting point, as many of the hours worked by Mr Islam each week (as above, an average of around 14 hours per week) attracted penalty rates, specifically excluded as part of the calculation of PIAWE by the legislation and per Islam at [224]. It is also not clear where Mr Islam obtained the hours worked figure of 1,754. It is not explained at all and inconsistent with the evidence I have before me, which has not been disputed.
Mr Islam’s submissions seem to proceed on the basis that he is entitled to payments at his PIAWE. That is not the case. Payments in accordance with s 37 are made according to the following:
“(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:
(a) (AWE × 80%) − D, or
(b) MAX − D,
whichever is the lesser.”
That is, Mr Islam is entitled to 80% of the PIAWE figure. The same amount applies for the s 38 period as part of Mr Islam’s claim.
The period in dispute commences on 22 September 2021, which is agreed in the parties’ submissions. The PIAWE figure is to be indexed in accordance with s 82A of the 1987 Act, which provides:
“(1) The amount of a weekly payment to a worker under Division 2 in respect of an injury is to be varied on each review date after the day on which the worker became entitled to weekly payments in respect of that injury, by varying the amount of the worker’s pre-injury average weekly earnings for the purposes of the calculation of the amount of the weekly payment in accordance with the formula:
where:
A is the amount of the worker’s pre-injury average weekly earnings within the meaning of Division 2 or, if that amount has been varied in accordance with this section, that amount as last so varied.
B is:
(a)  the CPI for the December quarter immediately prior to the review date when the review date is 1 April, or
(b)  the CPI for the June quarter immediately prior to the review date when the review date is 1 October.
C is:
(a)  the CPI for the June quarter immediately prior to the review date when the review date is 1 April, or
(b)  the CPI for the December quarter immediately prior to the review date when the review date is 1 October.
(2) In this section:
CPI means the consumer price index (All Groups Index) for Sydney issued by the Australian Statistician.
review date means 1 April and 1 October in each year.”
The applicant “became entitled to weekly payments” on 13 July 2020 (per the previous Member’s decision, which was revoked on the basis of the PIAWE calculation, and not on that factual point). This date is consistent with evidence in the Application, including the work capacity decision of 9 June 2021.
PIAWE was not indexed on 1 October 2020 as the B/C factor rate was below 1 (see s 82C of the 1987 Act). From here, figures will be rounded in accordance with s 82D (in this case, to the nearest whole $1). Indexation continues as follows, for the period in dispute:
(a)    1 April 2021 – $639 (this is before the period in dispute but after Mr Islam became entitled to weekly payments);
(b)    1 October 2021 - $647;
(c)    1 April 2022 - $659;
(d)    1 October 2022 - $681;
(e)    1 April 2023 - $709;
(f)    1 October 2023 - $726;
(g)    1 April 2024 - $739;
(h)    1 October 2024 - $754, and
(i)    1 April 2025 - $757.
These figures are slightly different to those calculated by the respondent, but the respondent’s figures do not appear to have included the 1 April 2021 indexation.
Mr Islam’s figures are not based on the calculations provided for in the legislation (and codified in the Workers compensation benefits guide issued by SIRA). Mr Islam appears to have used a “CPI assumption” of 2.5% annually, and has indexed the figure from the date of injury (not the date on which he first became entitled to weekly benefits). This is not the correct approach and is inconsistent with the legislation, which provides a specific calculation methodology as set out above. Accordingly, I do not accept Mr Islam’s submissions.
As above, Mr Islam is entitled to an award of weekly payments at 80% of the PIAWE rate set out above. Accordingly, I will make an award consistent with that.

[2025] NSWPIC 268

16 June 2025