Jamieson v Choice HR (Newcastle) Pty Ltd
[2006] NSWWCCPD 239
•20 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Jamieson v Choice HR (Newcastle) Pty Ltd [2006] NSWWCCPD 239
APPELLANT: Richard John Jamieson
RESPONDENT: Choice HR (Newcastle) Pty Ltd
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC10946-04
DATE OF ARBITRATOR’S DECISION: 25 November 2005
DATE OF APPEAL DECISION: 20 September 2006
SUBJECT MATTER OF DECISION: Labour hire company: part-time/casual worker; weekly payments.
PRESIDENTIAL MEMBER: Acting Deputy President Anthony Candy
HEARING:On the papers
REPRESENTATION: Appellant: Armstrongs, Solicitors
Respondent: Rankin Nathan, Lawyers
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 25 November 2005 is revoked and the matter is remitted to the Arbitrator concerned for determination afresh in accordance with these reasons.
2. The respondent employer should pay the costs of the appellant worker.
BACKGROUND TO THE APPEAL
Richard John Jamieson (‘the worker’) was employed by Network Staff as a casual labourer in 1994 and continued to work for them up to 7 December 2001 when that body was taken over by Choice HR (Newcastle) Pty Limited (‘the employer’).
The worker was injured on 25 November 2002 while lifting concrete blocks. He made a claim to the employer’s workers compensation insurer and payments of compensation were made. There were several attempts to return to work, however the worker could not continue because of increased pain. There was a work trial at a video store between July and September 2003. The worker struggled to work a five hour shift in such employment. The worker became a father on 16 September 2003 and his partner was on paid maternity leave until 24 November 2003. It appears she may have returned to work on 7 February 2004. I mention these matters only against the event that it should be necessary to consider whether there were persons dependent on the worker for the purposes of assessing the appropriate amount of compensation.
The worker’s solicitors wrote to the employer on 27 June 2003 seeking details of the worker’s employment and the compensation paid. The employer replied by letter of 7 July 2003. The solicitors again wrote to the employer on 19 September 2003 making a claim for weekly compensation over and above that paid by the insurer. The insurer replied to that letter by a facsimile transmission dated 10 October 2003 setting out the basis on which payments had been made. The solicitors wrote to the insurer on 4 November 2003 in relation to their client’s entitlement to weekly compensation, particularly his ongoing entitlement. It is not clear that any response was ever made to this letter.
An Application to Resolve a Dispute was accordingly registered in the Workers Compensation Commission (‘the Commission’) on 19 July 2004. This sought additional weekly compensation at the rate of $57.00 per week from the date of injury and made a claim for 12% whole person impairment pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’).
The assessment of whole person impairment was referred to an Approved Medical Specialist (‘AMS’) and agreement was reached as to this. There was an arbitration hearing on 6 September 2005.
The Arbitrator decided the matter on 25 November 2005 by awarding compensation at lower rates than had been paid by the insurer, as well as compensation at the rate of $1.25 per week from 9 August 2005 which was when the worker had returned to work as a console operator.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 25 November 2005 records the Arbitrator’s orders as follows:
“1.The Respondent is to pay the Applicant weekly payments of compensation from 25 November, 2002 to 26 May, 2003 at the rate of $179.00 per week pursuant to Section 36.
2.The Respondent is to pay the Applicant weekly payments of compensation from 27 May, 2003 to 3 June, 2003 at the rate of $179.00 per week pursuant to Section 37.
3.The Respondent is to pay the Applicant weekly payments of compensation from 3 June, 2003 to 8 August, 2005 at the rate of $179.00 per week, and from 9 August 2005 and continuing at the rate of $1.25 per week pursuant to Section 40.
4.No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(a) Whether the worker was a casual worker or a part-time worker.
(b) The appropriate quantification of weekly payments.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the employer that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The amount of weekly payments determined by the Arbitrator to 8 August 2005 is, by my calculations, $25,060.00. The amount claimed by the worker, again on my calculations, is approximately $60,000.00. Thus the amount at issue on the appeal is both greater than $5,000.00 and significantly more than 20% of the amount awarded.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is accordingly granted.
EVIDENCE AND SUBMISSIONS
There was no real dispute in this matter on any factual question. Rather, the dispute concerned the interpretation to be given to various sections of the 1987 Act. It is necessary, however, to have regard to the statements made by the worker as well as the information supplied by the employer and the insurer.
In a statement of 14 May 2004 the worker states that he was employed by the employer, which was a labour hire company. He had worked for them for some time and his labour was hired out to other employers and companies. He says following the injury he was certified fit for suitable duties on about 9 January 2003. These were provided on 16 February 2003 which made his back pain much worse. He was then certified unfit for work again. He then attempted to resume light work four to six weeks later and did one 4-hour shifts, being obliged to curtail a second 4-hour shift because of back pain. He says he did a work trial from July 2003 until September 2003 at a video store at Morisset. He said he was in great pain after working for five hours and, while he could handle lesser hours, he could not manage five hours every day. He relates that his son was born on 16 September 2003. He says prior to injury he was averaging about 23 hours per week and his average weekly earnings were $406.00 gross per week. He says he has been fit for light work since he completed the work trial on 9 September 2003. He says that his partner, Wendy Steel, was totally dependent on him from 24 November 2003 up to 7 February 2004 (I infer from this that his partner returned to work on that date).
A subsequent statement of 17 August 2005 deals particularly with his employment. The worker said that he commenced work for Network Staff, a labour hire company, in 1994. In December 2001 that business was purchased by the employer and from then on he was employed by that employer. He said his employment from 1994 was always on a casual basis. He recalled signing in December 2001 a document which allowed his files from Network Staff to be transferred to the employer but nothing else changed. In December 2001 he was still engaged for work in the same manner as he had been prior to the employer coming on the scene. Usually he would receive a phone call at home the day before and sometimes on that morning from the employer telling him to report for work at a certain location and for whom he would be working. He would be told for how long he would be working – sometimes it might be the rest of the week and sometimes half a day. Sometimes the call would come from the company that he was working for rather than the employer.
From December 2001 he worked for a number of companies where he was placed by the employer. These included Coates Prestige, Orion Constructions and Conaghan Plant Hire. He said there were other companies also but he could not recall their names. He said that if he worked a full week for one company he would be told on the Friday afternoon whether he would be needed the following week by either that company or by the employer. If he did return to work the next week it was not always for a full week and there were many occasions where he did not work at all the next week. There were also occasions when he worked for more than one company during the week. He attached a schedule from the employer which set out the days worked from December 2001 until the date of his injury in November 2002. The schedule sets out the amounts earned by him in the weeks that he worked. He said that during the period December 2001 to November 2002 the hourly rate varied between $13.14 per hour and $16.96 per hour for normal time. He alleges that the award rate for a Labourer Grade 3 at that time (August 2005) was $529.20 per week and he sets out his intention of commencing work at a service station on 9 August 2005 where he would be working twelve hours per week.
A statement from the employer setting out details of employment was also attached to the statement by the worker. It confirms that he had been employed by the employer since 7 December 2001 as a casual labourer. The award he came under was the National Building & Construction Industry Award as a Grade 3 Labourer. Prior to the date of his injury he had only worked for 28 weeks. Payment had been made to him at the rate of $349.42 per week following the injury based on his average hours of 20.48 per week. The employer’s Report of Injury submitted to the insurer is in identical terms.
The payments made by the insurer to the worker are set out in a computer printout dated 2 September 2005 and are as follows:
25 November 2002 to 3 June 2003 – $349.42 per week
4 June 2003 to 27 July 2003 – $310.90 per week
28 July 2003 to 3 August 2003 – $349.42 per week
4 August 2003 to 14 September 2003 – $310.90 per week
15 September 2003 to 19 June 2005 – $349.42 per week
22 August 2005 to 28 August 2005 $ 34.03
The insurer advised the worker’s solicitors that the solicitors’ calculation of current weekly wage rate was incorrect since overtime had been included in such calculation. The insurer said that based on normal hours of work, the average rate was $349.42 and the average weekly hours 20.48. Weekly benefits had been reduced to single statutory rate of $310.90 per week pursuant to section 38 on 4 June 2003 and then increased to $349.42 following the birth of his son.
Attached to the Application to Resolve a Dispute are sixteen pay slips dated from the week ended 23 June 2002 to 24 November 2002. The first for the week ended 23 June 2002 gives the ordinary hourly rate as $13.14 with an extra $2.63 described as “cas. load”. After this the hourly rate is simply $16.96 with no mention being made of a casual loading. Attached to the employer’s wage schedule is a pay summary, including overtime allowances. There are said to be 52 separate pay periods provided for from the week ended 9 December 2001 to the week ended 24 November 2002. This summary shows total amounts paid as “normal pay” as $9,308.35 while the total of payments including overtime and allowances is $12,908.74. That is, the total for overtime and allowances is $3,600.39. The details of payments are numbered in reverse order from 1 to 52 with the date handwritten next to the number, thus number 1 is “24/11” and 52 is “9/12/01”. Unless I am mistaken, there appear to be in reality only 51 pay periods and the inclusion of one other pay period for which the earnings are zero is erroneous. From 7 December 2001 to 24 November 2002 is a period of 353 days or 50.43 weeks. There are a number of weeks in which the earnings are nil, including a period from the week ending 31 March to the week ending 16 June 2002, a period of twelve weeks. I have set out these figures with some particularity because it is upon their calculation that the quantum of the worker’s entitlement to compensation rests.
Although there was an arbitration hearing on 6 September 2005 there is no transcript of that hearing. It appears from the Arbitrator’s reasons that evidence was given by the worker on this occasion. The worker’s solicitor also provided oral submissions at the hearing while the employer’s solicitor provided written submissions.
Attached to the Application to Resolve a Dispute was a schedule of payments claimed, which appears to be the only schedule of earnings lodged on behalf of the worker. It is as follows:
PERIOD
WAGE RATE
CLAIMEDWEEKLY
COMPENSATION PAIDDIFFERENCE
25/11/2002 to-25/05/2003 $406.00 per week $349.00 per week $57.00 per week 09/09/2003 to
06/11/2003$376.90 per week $349.00 per week $27.90 per week 07/11/2003 to
07/02/2004$406.00 per week $349.00 per week $57.00 per week 08/02/2004
continuing$383.80 per week $349.00 per week $34.90 per week
The employer’s wage schedule was as follows:
“Applicant’s current weekly wage rate at date of injury based on average earnings for twelve months preceding injury - $9,308.35/52 = $179.00 per week.
Applicant’s average weekly earnings at date of injury based on average earnings for twelve months preceding injury - $12,908.074/52 = $248.25 per week.
Weekly compensation was paid based upon erroneous information provided by respondent - $349.00 per week.”
Submissions by the Employer before the Arbitrator
In submissions filed by the employer it is noted that the worker was certified unfit for work until 3 June 2003 when he was certified fit for suitable employment. The payments made by the insurer are set out. These do not appear to accord entirely with the details which the insurer has provided but these differences are minimal. For the first twenty-six weeks of total incapacity, which are said to be 25 November 2002 to 26 May 2003, this is stated to be governed by section 36. The current weekly wage rate is applicable, determined in accordance with section 42 of the 1987 Act. It is noted that the worker was employed as a Grade 3 Labourer under the appropriate award. The hourly rate being $16.96 or $644.48 for a 38 hour week. This exceeds average weekly earnings of $248.25 per week. The employer says that the worker is a “part-time worker” and under section 42(4) the current weekly wage rate there is a reference to average weekly earnings subject to sub-sections (6) and (7) of section 42. The figure of $179.00 is said to be the appropriate payment to be made to the worker for the first 26 weeks, being $9,308.35 ÷ 52. The employer notes the worker’s claim that he is a casual worker and that section 43(1)(e) applies to him. On behalf of the employer it is submitted that section 43(1)(e) does not apply because the section speaks of contracts of service and in this case there was only one contract of service, namely that with the employer. Also reference is made to the section speaking of contracts of service being mainly contracts for separate periods, each of which is not more than five working days in the same industry. That is said not to be the case here. Section 43(1)(f) it is said does not apply because section 43(1)(e) does not relate to the worker and because his absences from work were on occasions when he was not required to be at work. It is stated that under section 43(1)(f)(a)[query section 43(1)(f)(i)], there is no “full normal working week” for the worker.
From 3 June 2003 onwards, the employer submits that compensation is required to be assessed under section 40 using the five step process identified in Mitchell v Central West Health Service (1997) 14 NSWCCR 527. It is stated that the worker’s earnings from his recently obtained job should be in the vicinity of $219.12 per week at $18.26 per hour. At most the worker’s entitlement under section 40 is said to be $29.13 per week since 9 August 2005. The figure of $29.13 is the difference between the worker’s stated average weekly earnings (according to the employer) namely $248.25 and the approximate amount earned since 9 August, namely $219.12 per week.
Submissions by the Worker before the Arbitrator
As I have said, the oral submissions of the worker as to the quantum of weekly payments are not available and it is necessary to turn to the reasons given by the Arbitrator in order to determine what they were. The Arbitrator has recorded at[15] that the worker’s solicitor relied on the provisions of section 43(1)(e) and (f) of the 1987 Act to the effect that the worker was a casual worker for the twelve months prior to the accident and only worked for 28 weeks of the 52 weeks. It was submitted that in accordance with section 43(1)(e), his earnings should be computed in accordance with section 43(1)(f). It was submitted on this basis the worker’s average weekly earnings were $462.00 per week. The Arbitrator then says that these submissions were that if one took into account the fact that the worker was not working on all of those five days in each of those weeks, making adjustments for the days not worked, his average weekly earnings are actually $406.00 per week. It was submitted on behalf of the worker that the entry in his wage schedule from 8 February 2004 and continuing was in error and the figure of $383.00 should be $406.00 per week. Since 9 August 2005 the worker had been earning $247.00 per week which it is said represented his ability to earn. Thus the worker was entitled to $159.00 per week, being the difference between $406.00 per week and earnings of $247.00. It was, the Arbitrator said, conceded on behalf of the worker that the worker could not obtain more money for compensation than he actually earned with the employer. It was conceded by the worker’s solicitor that the employer’s submissions and calculations would be correct if there was only one contract of service with the respondent. It was said, the worker was a typical employee for a labour hire company.
Submissions on Appeal by the Worker
The worker on appeal relies on the following grounds:
(a) Failure to provide adequate reasons for decision.
(b) Failure to properly consider the evidence.
(c) Errors of law, fact and discretion.
(d)The absence of reasons for the finding by the Arbitrator that the worker was a part-time worker.
(e)Failure to refer to admissions made by the employer as to the nature of the employment.
(f)Failure to consider that in the sixteen pay periods in twenty-one weeks before the worker was injured he worked full hours for at least seven of those weeks.
(g)Failure to have regard to the evidence that the worker accepted all work offered to him and his hours of work were determined by the availability of work rather than by a contract of service for hours less than a 38 hour week.
(h)Without finding a contract of service for a limited number of hours per week as in Webb v Chapman (1997) 15 NSWCCR 625 (‘Webb’), the finding that the worker was a part-time worker is said to be plainly wrong and not supported by any evidence.
(j)Section 42(1)(a) applied to the claim made pursuant to section 36.
(k)Failure to assess compensation as a casual worker that is, the award rate on a weekly basis.
(l)Failing to give the Workers Compensation Act a beneficial construction.
(m)Failing to apply section 43(1)(f) to the entitlement to compensation under section 37, namely the lesser of 90% of average weekly earnings calculated at $644.48 per week or the statutory rate for a worker with one dependent child at the relevant times.
(n)With regard to section 40, it is said that the Arbitrator erred in averaging the worker’s earnings 52 weeks prior to injury (failed to take the appropriate average earnings of the worker at $433.00 per week).
(o)Failing to award under section 40, $186.00 per week, being the difference between $433.00 and $247.00 per week.
(p)If the finding of part-time employment is not disturbed, the Arbitrator misdirected himself as to relevant provisions of section 42 and 43 in determining the worker’s current weekly wage rate.
The Arbitrator agreed with the worker’s solicitor’s submissions in relation to the application of Webb. The Arbitrator said that he was not persuaded by the employer’s submission that there was only one contract of service. He said that, in circumstances where the worker is offered work when available which he can either accept or reject without jeopardising the ability to obtain further work, each acceptance of an offer of employment constituted a separate contract of service. The Arbitrator held, however, that section 42(7) did not apply since the contracts of service were with the same employer. The Arbitrator noted the worker’s solicitor’s concession, which I have referred to above, that the employer’s submissions would be correct if there was only one contract of service. The Arbitrator thought that it followed that as he found that section 42(7) did not apply, the submissions of the employer were to be accepted. He said this was not only because of the worker’s concession but because he had considered the submissions and agreed with them.
Submissions on Appeal by Employer
The employer states that the Arbitrator found that the worker was not a casual worker for the purpose of calculation of average weekly earnings. The definition of casual worker is in section 43(e). It is submitted that the worker was probably classified as a part-time worker because he did not regularly work a full week and reliance is placed on Henderson v New South Wales Baptist Homes Trust (1990) 21 NSWLR 360 at 367-368 (‘Henderson’).
The employer states the Arbitrator’s reasons were sufficient since they addressed the essential elements and the available relevant evidence. Reliance is placed on the case of Camden Council v Hancock [2005] NSWWCC PD 6 (‘Hancock’).
The worker’s average weekly earnings over the twelve month period preceding injury are stated to have been $248.25 and the Arbitrator, it is said, was entitled to accept that sum as representing the worker’s probable weekly earnings but for injury. Reliance is placed on Akawa Aust Pty Ltd v Cassells (1995) 25 NSWCCR 385 (‘Cassells’).
It is stated that the worker’s submissions ignore the provisions of section 42(4).
The employer submits that, contrary to the Arbitrator’s finding, there was in fact only one contract of employment which required him to work when and where required. It is stated that there was no evidence the worker was employed by any other employer other than the employer in this case.
DISCUSSION AND FINDINGS
It is first necessary I think to look at the statutory provisions relating to the entitlement of an injured worker to weekly payments of compensation. I set out hereunder the relevant parts of the legislation. All of the statutory provisions appear in the 1987 Act.
“36(1) The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work during the first 26 weeks of incapacity shall be the amount of the worker’s current weekly wage rate.
(2) In this section –
current weekly wage rate, in relation to a worker, means the worker’s current weekly wage rate determined from time to time in accordance with section 42.
37(1) The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work (not being a period within the first 26 weeks of incapacity) shall be –
(a) 90% of the worker’s average weekly earnings, except that –
(i) the payment shall not exceed $235.20 per week;
(ii)the case of a worker who is over 21 years of age at the time of payment – payment shall be not less than $187.10 per week; and
...
(b)in addition, $62.00 per week in respect of –(i) a dependent wife or dependent husband of the worker; ...
(c) in addition –
(i)in respect of the dependent children of the worker, the following amounts per week:
1 dependent child $43.30
...
(7) In this section –
appropriate periods, for the purposes of the calculation of ‘average weekly earnings’ in relation to a worker, means the period of 12 months or, if the worker has been employed with the employer concerned for less than 12 months at the time of the injury, that lesser period.
average weekly earnings, in relation to a worker, means the average weekly earnings of the worker determined in accordance with section 43 during the appropriate period before whichever of the following times produces the higher average weekly earnings:
(a)the time of injury concerned,
(b)the time at which the relevant weekly payment of compensation is due, with the determination under paragraph (b) made on the assumption that the worker had been earning the wage or salary which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or some comparable employment.
...
40(1) Entitlement. The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.
(2)Calculation of reduction in earnings of worker – general. The reduction in the worker’s weekly earnings is (except as provided by this section) the difference between:
(a)the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment (but not exceeding $1,000.00); and
(b)the average weekly earnings which the worker is earning, or would be earning in some suitable employment, from time to time after the injury (but not exceeding $1,000.00).
...
(5)Maximum rate of compensation. The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is not to exceed the weekly payment that would be payable to the worker if it were a period of total incapacity for work.
…
42(1) Subject to this section, a reference in this Division to the current weekly wage rate of a worker, being a worker who is incapacitated for work and who, immediately before being incapacitated –
(a)was remunerated under an award fixing or providing for the fixing of a rate for a weekly or longer period (not being a worker who belongs to a class of workers prescribed by the regulation purposes of paragraph (c)) – is at any time during the incapacity, a reference to the rate of remuneration under that award at that time for 1 week in respect of the work being performed by the worker immediately before becoming incapacitated;
...
(4)Subject to subsections (6) and (7), if the amount of a part-time worker’s current weekly wage rate, as determined under subsection (1), exceeds the worker’s average weekly earnings, a reference in this Division to that worker’s current weekly wage rate is a reference to those average weekly earnings.
...
(6)In determining a worker’s current weekly wage rate in accordance with subsection (1)(a) or (b) or (4), any amount paid or payable to the worker –
(a)in respect of shift work, overtime or other penalty rates;
(b)under the terms of the worker’s employment in excess of the ordinary rate fixed by any award for the work performed by the worker; or
(c)to cover special expenses incurred by the worker because of the nature of the worker’s employment,
is, except insofar as the regulations otherwise provide, to be disregarded.
(7)A reference in this Division to the current weekly wage rate of a worker, being a worker who –
(a)at the time of the worker’s injury, was employed under 2 or more contracts of service under which the worker worked at one time for one employer and at another time for another employer; and
(b) is incapacitated from performing work under any 2 or more of those contracts,
is a reference –
(c)except as provided in paragraph (d) – to the sum of the current weekly wage rates applicable to the worker under subsection (1) or (4) as a worker employed by each of the employers by whom the worker was employed under the contracts referred to in paragraph (b); or
(d)where the total of the worker’s ordinary weekly hours of work under the contracts referred to in paragraph (b) exceeded 40 – to an amount that bears to the sum referred to in paragraph (c) the same proportion as 40 bears to that total,
and the current weekly wage rate of such a worker, as determined under the section, shall be deemed to be the worker’s current weekly wage rate as a worker in the employment of the employer for whom the worker was working at the time of the worker’s injury to the exclusion of any other employers.
43(1) For the purposes of the provisions of this Act relating to ‘earnings’ and ‘average weekly earnings’ of a worker, the following rules shall be observed –
(a)average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the worker was being remunerated, except that if, because of the shortness of the time during which the worker has been in the employment of the employer or the terms of the employment, is impracticable at the date of the injury to compute the rate of remuneration, regard may be had to the average weekly amount which, during the 12 months previous to the injury, was being earned –
(i)by a person in the same grade, employed in the same work, by the same employer; or
(ii)if there is no person so employed, by a person in the same grade employed in the same class of employment, and in the same district.
...
...
(e)the average weekly earnings of a casual worker, that is to say a worker whose contracts of service are mainly contracts for separate periods each of which is of not more than 5 working days in the same industry, shall be computed as if the worker’s earnings under all of his or her contracts of service, for the period of 12 months preceding the injury or any shorter period during which the worker may have been engaged in the industry, were earnings in the employment of the employer for whom the worker was working at the time of the injury;
(f)if a worker is a worker to whom paragraph (e) applies or has been absent from work by reason of illness, strikes, lockouts, bad weather, intermittency of employment, slackness of trade or any other reasonable cause, the average weekly earnings of the worker shall, notwithstanding the foregoing provisions of this section –
(i)in the case of a worker who is 21 years of age or over, be deemed to be not less than the full wage for a full normal working week of that worker or the basic wage whichever is the greater; ...”
It should be noted that the monetary figures given in the sections referred to above are subject to adjustment at regular intervals and have been increased substantially since those amounts were specified in the Act.
It is next necessary to turn to cases relied on by the parties or which otherwise appear to be applicable. Henderson was a case concerned with an employee who regularly worked two 10-hour shifts. The case was related to the application of section 11(2) of the Workers Compensation Act 1926 (‘1926 Act’), that is, the worker’s entitlement to be compensated as if her incapacity for work were total if the employer failed to provide suitable employment during her partial incapacity for work. It was held that the trial judge had taken an erroneous view of the provisions of section 11(2) in denying the worker entitlement to compensation as if her incapacity were total. The employer has relied on this case as supporting the proposition that the worker was properly classified as a part-time worker because he did not regularly work a full week. It seems to me that what is relevant appears in the judgment of Priestley JA at 367 where he says:
“None of the terms ‘full-time worker’, ‘part-time worker’ or ‘casual worker’ is defined in the Workers’ Compensation Act 1926. Some indications of their meaning are given however. ‘Casual’ is referred to in section 6(1), in the exclusions from the definition of ‘worker’; a person is not a worker as defined:
‘... whose employment is casual (that is for one period only of not more than five working days) and who is employed otherwise than for the purposes of the employer’s trade or business.’
Section 14(1)(e) refers to the average weekly earnings of a casual worker:
‘... That is to say the worker whose contracts of service are mainly contracts for separate periods, each of which is not more than five working days in the same industry.’
It does not seem to me that the appellant would be regarded as a casual worker either as these words are commonly understood in everyday speech, or in section 6(1) and section 14(1)(e). The respondent, as I understood the argument did not contend in this court that the appellant was a casual worker. So far as ‘part-time worker’ is concerned, counsel referred us to subs (10) and subs (10A) of section 9A of the Act. Counsel told the court that they were not aware of any of the references in the Act. These two subsections do not throw any particular light on the question now in issue, but in a general way seemed quite clearly to go upon the basis that part-time workers are as entitled to awards under the Act as any other workers within the meaning of that term.”
He goes on to say at 368:
“Persons speaking of full-time workers in the context of awards of compensation under the Act would, in general, in my view, have in mind workers working hours on a weekly basis as fixed by whatever award was relevant to their work, or if there was no such award, by reference to a more generalised idea of a week’s work. I do not, however, see anything in section 11(2) indicating that its application is limited to workers falling within the idea of full-time work as outlined in the preceding paragraph.”
It should be noted that the provisions of the 1926 Act referred to in this case are substantially reproduced in the 1987 Act.
Van Leer Australia Pty Limited v Stephenson CA 40372 of 1990 (Court of Appeal, 9 September 1994 unreported) (‘Van Leer’), was a case involving the 1987 Act. A Commissioner had found that the worker was partially incapacitated for work. The version of section 40 which was under consideration in that case is different from the current section 40 in that there was reference to “current weekly wage rate for some suitable employment”. The judge who determined the review from the decision of the Commissioner held that the worker was not a part-time worker for the purposes of the Act because she did not limit her hours but worked as required and sometimes worked a full week. Nonetheless, the Court of Appeal held that the worker had been a casual employee as ordinarily understood as her hours of work had varied from week to week with the employer’s requirements for casual labour.
Handley JA at 6, referred to the decision in Henderson, in particular that which was discussed by Priestley JA at 367-368. He thought that the discussion did not greatly assist in the present context. His Honour was of opinion that the worker was a part-time worker for the purpose of section 42(4).
Powell JA in Van Leer said that the same result would flow whether the worker was held to be a part-time worker or a casual worker. He thought that the determination of the meaning which in the context was to be attributed to each of the terms a ‘part-time worker’ or a ‘casual worker’ might be left until the court had a case in which some definitive determination was called for.
His Honour considered that, in the absence of some definition, the phrases were not to be regarded as terms of precision but rather that each was a colloquial expression taking its colour from the context in which it was used. His Honour was clearly aware of the words “that is to say a worker whose contracts of service are mainly contracts for separate periods, each of which is not more than five working days in the same industry” which appeared in section 14(1)(e) of the 1926 Act since he refers to that provision. [The equivalent provision, although not identical, appears in section 43(1)(e) of the 1987 Act.] His Honour goes on to refer to decisions of industrial courts. His Honour quotes from In re Shop Assistants Newcastle and Metropolitan Awards [1957] AR at 344 where De Baun J said:
“I think casual employees are what their name implies ‘employees who are employed as and when required!’ In this industry some of them are required with some regularity at busy times, e.g. on Fridays or Saturdays, or during the weeks prior to Christmas. Casual employees are to receive a rate of pay according to their age, that is to say, at an hourly rate equivalent to the appropriate weekly rate plus 12.5%.”
His Honour next referred to the matter of In re Clerks (State Award) [1953] AR at 224-5 where Taylor J as President of the Industrial Commission said this:
“’Part-time employees’, on the evidence are not in my opinion strictly casuals. They are persons who are prepared to give a portion of their time, in most instances somewhat less than the normal working week to an employer. They do not go from place to place, but are employed in the one establishment. It seems proper that provision should be made to this class of employee ... [t]hey cannot give a full week’s work because of their own personal problems but such work as they can give they are employed for.”
His Honour concludes as follows:
“In other cases, ‘casual employees’ have been defined in the relevant Award in varying terms, as, for example, ‘employees by the hour/day and paid by the hour/day’ or ‘employees engaged and paid as such’ (see for example, In re Motor Bus Drivers and Conductors (State) Award [1956] AR at 117. What I have written will, I think make it clear that, as Priestley JA has suggested, depending upon the discrimen which one chooses to apply, one can make as equally respectable a case for the view that the Respondent was a ‘casual worker’ as one can for the view that she was a ‘part-time worker’ for the purposes of section 42, and section 43 of the 1987 Act. The determination of what is the proper discrimen to be applied, is, in my view, a question which justifies far more extensive argument, and consideration than was given to it on the hearing of this appeal.”
In Webb, the Court of Appeal considered the meaning given to ‘part-time worker’ in section 42(4) of the 1987 Act. Reference was made to Henderson, Van Leer and also In re Clerks (State) Award. Meagher JA agreed with Cole JA that the appeal should be dismissed and Beazley JA dissented. The trial judge had held that the worker was a part-time worker because of an agreement made between the parties that the worker would be employed for two days per week on a grazing property. ‘Part-time’, Cole J thought should be given its ordinary meaning which was not ‘full-time’. However, the words ‘part-time worker’ means a person who has entered into or works under a contract of service with an employer part-time. The definition of worker was said to direct attention to the contract between the parties. His Honour agreed with what was said by Handley JA in Henderson:
“In Van Leer the Respondent was a part-time worker as ordinarily understood because she did not regularly work a full week.”
It was held that the worker did not fall within the meaning of a casual worker referred to in section 43(1)(e). His Honour held that to fall within section 43(1)(f) one of two requirements must be satisfied, the first a worker who is within section 43(1)(e); the second is, the worker must be one who has been absent from work by reason of illness, strikes, lock-outs, bad weather, intermittency of employment, slackness of trade or any other reasonable cause. In that case the worker was not absent from work at all because he was not engaged to work more than two days a week and the expressions “illness, strikes, lock-outs, bad weather, intermittency of employment, slackness of trade or any other reasonable cause” indicated various reasons why it was reasonable for a worker not to be present during the normal times required by his contract of employment.
Beazley JA dissented on the grounds that the trial judge had erred in failing to consider the worker’s expressed intention to engage in other work if he could find it.
In Cassells, the Court of Appeal considered the application of section 40(2)(a) of the 1987 Act. The decision of the Court of Appeal was delivered by Rolfe A-JA. The Court of Appeal was not persuaded that the trial judge’s assessment of the worker’s ability to earn was erroneous. The questions decided by the judge were matters of fact and it was acknowledged that the Compensation Court was a specialised tribunal of which its judges were well qualified to make the kind of assessment made in that case.
The Arbitrator decided the worker’s entitlement to compensation on the basis that he was a part-time worker. Webb was said not to be congruent with the facts in these proceedings. The Arbitrator does not appear to have considered the worker’s submissions that he should be considered a casual worker. Accordingly, in my view, it is necessary to reconsider the facts in the light of the statutory provisions and relevant authorities in order to determine whether a correct application of those would have produced a different result in this case.
There are, it appears to me, a number of separate periods in respect of which different considerations may apply. Firstly, there is a period from the date of injury 25 November 2002 to 26 May 2003 which was accepted by the Arbitrator as being a period for which compensation was payable pursuant to section 36. Thereafter compensation was payable on the basis of total incapacity up to 3 June 2003 pursuant to section 37. Dr Beckhouse, the worker’s general practitioner, on 3 June 2003 certified the worker fit for suitable duties. Accordingly, apart from the application of section 38, the worker is entitled to compensation under section 40 from 3 June 2003 to 8 August 2005. Different considerations apply to the period from 9 August 2005 onwards which was the date when the worker commenced employment as a console operator at a service station.
For the first 26 weeks of total incapacity compensation is payable at the current weekly wage rate which is, prima facie, the award under which the worker was remunerated. That award rate was said to be $644.48 per week. If that be the correct figure, then it is necessary to have regard to section 42(4) in determining the worker’s average weekly earnings on the basis that he was a part-time worker. At this stage I should say that, on the authorities, the worker not being a full-time worker he must be considered to be a part-time worker. Nonetheless, this cannot exclude his being a casual worker. Whether he is or is not a casual worker I will turn to shortly.
Section 43 provides for the computation of average weekly earnings. Section 43(1)(e) provides for the calculation of average weekly earnings of a casual worker. By the operation of section 43(1)(f) if a worker, to whom section 43(1)(e) applies, or if the worker has been absent for work for the specified reasons, namely illness, strikes, etc, then in the case of a worker who is 21 years of age or over, his average weekly earnings shall be deemed to be not less than the full normal working week of that worker. The provisions in the latter case appear to apply to persons who would normally be considered full-time but who have had interruptions in their paid employment. I take the view that the worker in this case may be considered a casual worker as well as a part-time worker, if it is correct that these categories are not mutually exclusive. All workers who are not full-time workers are part-time workers and of these some may be casual workers. There is not the regularity of part-time work in this case which would confine the worker to the category of part-time worker and exclude him from the category of casual worker as ordinarily understood. As the Court of Appeal in Henderson has held, there is no definition of a casual worker, although reference is made in the legislation to contracts of not more than five working days in the same industry. The Arbitrator accepted that the worker was engaged under separate contracts of employment for each engagement and some of these were less than five days. It may be that all of them were for five days or less on the basis that the worker was only ever required to work for one week at a time and it was up to him to determine whether he would accept work which was offered in the following week. There are a number of extracts from a timesheet attached to the Application To Resolve A Dispute. These show the days on which the worker was required to work. These hours follow:
Week Ending No. of
Days09/12/2001 1 16/12/2001 2 20/01/2002 2 27/01/2002 1 24/02/2002 1 03/03/2002 2 17/03/2002 1 24/03/2002 4 23/06/2002 5 30/06/2002 5 07/07/2002 2 14/07/2002 3 21/07/2002 4 28/07/2002 3 04/08/2002 4 11/08/2002 3 08/09/2002 2 15/09/2002 1 22/09/2002 6 29/09/2002 5 06/10/2002 5 13/10/2002 3 20/10/2002 5 27/10/2002 2 10/11/2002 1 17/11/2002 1 24/11/2002 2
It will be seen that only on six occasions did the worker work five days or more. Accordingly, it would be open in my view to find that the worker was mainly employed for periods of not more than five days within the meaning of section 43(1)(e).
Section 43(1)(f) does speak of a “full wage” for a “full normal working week” which is, I think, a reference to the award rate. A casual worker cannot, it seems, ever to be said to have a normal working week yet section 43(1)(f) does apply to such a worker. The Arbitrator took the view that as the worker had had only one employer, section 42(7) did not apply to him since it envisages there being more than one employer. Section 42(7), it appears to me, deals with concurrent employment rather than casual employment. I think the Arbitrator erred in taking the view that that subsection had any application to the worker in this case at all. A similar argument could be in relation to the provisions of section 43(1)(e) and (f). It seems to me that two views are open in relation to these subsections. The first is that reference in section 43(1)(f) to a worker to whom paragraph (e) applies is a reference to a casual worker. The second view is that it applies to a casual worker where there are separate contracts of service with more than one employer. I do not think that the latter construction is correct. Section 43(1)(e) does not specifically refer to there being more than one employer and, in my view, there is no reason to import this concept into the subsection.
As discussed at paragraph 51, the first step in determining the worker’s entitlement to the first 26 weeks of total incapacity is to determine his current weekly wage rate. It is necessary to look at the provisions of section 42 in order to do so. It appears to me that section 42(1)(a) provides for the current weekly wage rate being the rate of remuneration under the award for one week in respect of the work being performed by the worker. That award has been now identified in the submissions by the employer and is $644.48 for a 38 hour week. The worker in this case cannot be considered a full-time worker. Accordingly it is necessary to have regard to the provisions of section 42(4). That places a cap of the worker’s average weekly earnings on the current weekly wage rate. Section 43 deals with the computation of average weekly earnings and by section 43(1)(e) and (f), if the worker is a casual worker and is 21 years of age or over, the average weekly earnings shall be deemed to be not less than the full wage for a full normal working week or the basic wage, whichever is greater. There is no evidence in this case as to the basic wage. Section 43(1)(f) is expressed to have effect “notwithstanding the foregoing provisions of this section”. Thus, in my view, the worker is entitled to an award under section 36 at the rate of $644.48 up until 25 May 2003. (The period of 26 weeks is from 25 November 2002 to 25 May 2003, both dates inclusive.)
From 26 May 2003 to 2 June 2003 the worker is entitled to be compensated pursuant to the provisions of section 37. This is the lesser of 90% of average weekly earnings or the prescribed statutory rate which at the time was $310.90.
From 3 June 2003 to 8 August 2005 the worker is entitled to be compensated pursuant to the provisions of section 40 of the Act. I note however that the insurer had made payments pursuant to the provisions of section 38. These do not appear to be referred to in the Arbitrator’s reasons and I propose to remit the matter to the Arbitrator to deal with this.
So far as the application of section 40 to the relevant period, it is necessary for the Arbitrator in my view to determine the weekly amount which the worker probably would have been earning as a worker but for injury as well as the average weekly amount which the worker was earning or was able to earn in some suitable employment. I cannot see that this has been addressed by the Arbitrator in any way until the worker commenced employment on 9 August 2005. It would be relevant, in my view, to have regard to the worker’s evidence in determining both the weekly amount which he would probably be earning but for injury and the weekly amount which he would have been able to earn. I do not take the view that the amount found by the Arbitrator was the amount the worker would have been probably earning but for injury. It is, I think, a quite separate question which has not been answered. Certainly the amount of $1.25 awarded by the Arbitrator from 9 August 2005 in no adequate way reflects the diminution of earning capacity suffered by the worker. In this manner, in my opinion, the Arbitrator has erred.
DECISION
It follows from what I have said that the decision of the Arbitrator dated 25 November 2005 is revoked and the matter is remitted to the Arbitrator concerned for determination afresh in accordance with these reasons.
COSTS
The worker has been successful on this appeal and, accordingly, the appropriate order is that the respondent employer should pay the costs of the appellant worker.
Anthony Candy
Acting Deputy President
20 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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