Islam v Eureka Operations Pty Ltd t/as Coles Express
[2024] NSWPIC 206
•24 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPIC 206 |
| APPLICANT: | Tawfiqul Islam |
| RESPONDENT: | Eureka Operations Pty Ltd t/as Coles Express |
| MEMBER: | John Wynyard |
| DATE OF DECISION: | 24 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Self-represented applicant challenge to calculation of pre-injury average weekly earnings; Held – applicant’s calculations made on misapprehension of the calculation of part time employee’s entitlements; orders made accordingly. |
| DETERMINATIONS MADE: | The Commission determines: 1. Amend order 1 of the Statement of Reasons dated 28 September 2023 to read: “The respondent will pay the amount of $416 pw pursuant to ss 37 and 38 of the Workers Compensation Act 1987 from 22 September 2021 to date and continuing as indexed or adjusted.” 2. Credit to be given for payments made. |
STATEMENT OF REASONS
On 20 December 2023 I issued a determination following a request by Eureka Operations Pty Ltd t/as Coles Express (the respondent) on 25 October 2023 to reconsider my decision regarding Mr Islam’s claim for weekly payments.
This followed my decision of 28 September 2023 (Tawfiqul Islam v Eureka Operations Pty Ltd t/as Coles Express [2023] PIC 515).
On 20 December 2023 I made orders following a hearing of 15 December 2023. In those orders I granted leave to the respondent to approach on notice to the applicant if the calculation of Mr Islam’s weekly entitlement were incorrect.
The respondent acted on that leave and on 13 February 2024 a teleconference was convened at which Mr Islam appeared unrepresented and Ms Belinda Walsh for the respondent and Ms Monica Nguyen for the insurer appeared also.
On 13 February 2024 I issued Directions as follows:
“1. I direct the respondent to lodge and serve a response to the matters raised by Mr Islam in his email and other documentation forwarded on 6 February 2024, such response to be made by 20 February 2024.
2. I direct Mr Islam to respond to the respondent’s answer by email to both the Commission and the respondent by 5 March 2024.
3. I set this matter down for further teleconference at 10:30am on 14 March 2024.”
On 14 March 2024 the further teleconference was held. The appearances were the same and the teleconference was recorded by consent.
Relevantly the evidence relied on was:
(a) the respondent’s submissions addressing weekly payments dated 25 January 2024.
(b) Email from Mr Islam dated 6 February 2024 addressed to the respondent and the Commission.
(c) Email dated 10 March 2024 from Mr Islam in response to the submissions as to weekly payments.
(d) Document entitled “net salary after penalty and tax”.
(e) Document entitled “earnings history” report from Coles Express in Waterloo tendered by Mr Islam.
In my decision of 28 September 2023 I noted at [304] that the pre-injury average weekly earnings (PIAWE) was agreed at $733.38. My award was accordingly made in the sum of $586.70 pursuant to ss 37 and 38 of the Workers Compensation Act 1987 (1987 Act) from 22 September 2021.
When the matter was first reconsidered by me on 15 December 2023, I was advised that the agreed PIAWE was based on a different date of injury to that which I found. The parties had assumed that the injury date would be 10 January 2018 but on 20 December 2018 I confirmed that in fact the date of injury was 11 July 2015.
I further confirmed the agreed PIAWE rate at $733.38 and amended my order in the Statement of Reasons to add “as indexed or adjusted” and as indicated gave leave to the respondent to approach.
At the teleconference of 13 February 2024 there was a significant divergence between Mr Islam and the respondent as to the appropriate PIAWE, as a result of which I issued the above direction on 13 February 2024.
Mr Walsh explained the contents of her submissions and the transcript will show that she agreed that at the date of injury of 11 July 2015, the applicable PIAWE was $972.80.
The applicable legislation at that time has subsequently been repealed, but s 44G(2) then provided that:
“44G Definition applying to pre-injury average weekly earnings and current weekly earnings—base rate of pay
(2) In relation to pre-injury average weekly earnings and current weekly earnings, if, at the time of the injury:
(a)a worker’s base rate of pay is prescribed by a fair work instrument that applies to the worker, and
(b)the worker’s actual rate of pay for ordinary hours is higher than that rate of pay, the worker’s actual rate of pay is to be taken to be the worker’s base rate of pay.”
Section 44D provided uncontroversially that the relevant period in relation to PIAWE is a reference to, in Mr Islam’s case, 52 weeks immediately prior to the injury.
Section 44C provided that PIAWE was defined as the sum of the average of the worker’s ordinary earnings ….. expressed as a weekly sum, and any overtime and shift allowance payment, but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable.
Sub-section (5) of s 44C provides:
“(5) An overtime and shift allowance payment is permitted to be included in the calculation of pre-injury average weekly earnings (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable) if:
(a) …..”
During the teleconference a thorough analysis was made of the tables lodged by Mr Islam as his objection was that when his entitled reduced pursuant to s 44C(5) the penalty rate did not equate to the amount that was suggested by the respondent.
It was agreed that the relevant PIAWE over the preceding year was $972.80 which translated to $778.24 pursuant to s 37.
The 52 week period that Mr Islam received compensation for or was entitled to receive compensation for commenced from when he first received weekly compensation on 13 July 2020.
He was on and off work thereafter and he has been paid 61 weeks compensation until the payments ceased on 22 September 2021.
After 52 weeks pursuant to s 44C(5) Mr Islam is no longer entitled to have his entitlement calculated by including overtime and penalty rates.
That resulted in a PIAWE of $495.16.
Ms Walsh said that those 61 weeks would have to be re-visited as the PIAWE was considerably higher – $778.24 pw rather than the $733.38 payment that has been hitherto applied.
Mr Islam’s difficulty was that his calculation of the penalty rates did not equate to anything like the difference between the two PIAWEs, i.e. $972.80 under s 44C and $495.16 once the 52 weeks had expired and he was no longer entitled to the benefit of overtime or penalty rates.
Mr Islam argued that by reference to the earnings history report it could be seen that the penalty rates he earned were minimal. The earnings history table showed Mr Islam’s income between 8 January 2014 and 29 July 2015. The earnings history report was divided into a number of columns which showed the payment date and the period covered, the gross and net earnings including the tax paid and other deductions. The columns to the right hand side table were entitled “W/T text”, “hours” and “amount”. Mr Islam submitted that the penalty rates for the hours he worked were shown to be of a small percentage compared to what he earned at ordinary rates.
Mr Islam argued that the amount he earned on his ordinary rates which was $20.61 per hour demonstrated that his entitlement was accordingly to be based on a PIAWE of $894.93, that is to say, $972.80 per week less the $77.87 per week he had been disentitled to once the 52 weeks of weekly compensation had been paid.
The answer to Mr Islam’s query is to be found in s 44H which provides:
“44H Definition applying to pre-injury average weekly earnings and current weekly earnings—ordinary hours of work
In relation to pre-injury average weekly earnings and current weekly earnings, the ordinary hours of work:
(a) in the case of a worker to whom a fair work instrument applies are:
(i) if the ordinary hours of work in relation to a week are agreed or determined in accordance with a fair work instrument between the worker and the employer—those hours, or
(ii) ….., or
(b) in the case of a worker to whom a fair work instrument does not apply:
(i) if the ordinary hours of work are agreed between the worker and the employer, those hours, …
(ii)….”
Ms Walsh advised that the respondent employed its workforce under a Fair Work instrument. The employment contact with Mr Islam was that he was employed as a part time employee, working 24 hours per week.
Anything earned over that was accordingly overtime regardless of whether it was paid at the ordinary rate of pay or at a penalty rate of pay. It is in this manner that the PIAWE is calculated and I am satisfied that the amount argued for in the respondent’s submissions is accordingly justified by the legislation then in place.
I therefore make the above orders.
0
0
0