Jayasingha v Tristar Steering & Suspension Australia Ltd
[2007] NSWWCCPD 207
•5 October 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Jayasingha v Tristar Steering & Suspension Australia Ltd [2007] NSWWCCPD 207
APPELLANT: Ambegahahewage Jayasingha
RESPONDENT: Tristar Steering & Suspension Australia Ltd
INSURER:GIO General Limited
FILE NUMBER: WCC2297-07
DATE OF ARBITRATOR’S DECISION: 18 June 2007
DATE OF APPEAL DECISION: 5 October 2007
SUBJECT MATTER OF DECISION: Calculation of current weekly wage rate under section 42 of the Workers Compensation Act 1987; meaning of “current rate of pay” in an enterprise agreement approved under section 170LJ of the Workplace Relations Act 1996
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Bowrey Lawyers
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: The Arbitrator’s determinations dated 18 June 2007 and 10 July 2007 are revoked and the following orders made:
“1.Award for the Applicant worker under section 38 of the Workers Compensation Act 1987 from 26 June 2006 until 24 December 2006 in the sum of $896.04 per week and from 25 December 2006 until 25 June 2007 in the sum of $716.83 per week.
2.The Respondent employer to be given credit for payments made.
3.The Respondent Employer is to pay the Applicant Worker’s costs as agreed or assessed.”
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
Ambegahahewage Jayasingha (‘the Appellant Worker/Mr Jayasingha’) started work for Tristar Steering & Suspension Australia Ltd (‘the Respondent Employer/Tristar’) as a machinist/auto setter in May 1987. On 23 May 2006 he was injured in the course of his employment. On 26 May 2006 he was made redundant and paid his redundancy entitlements under the Tristar Steering and Suspension Australia Limited Certified Agreement 2003, an enterprise agreement which was approved under section 170LJ of the Workplace Relations Act 1996 on 24 May 2005 (‘the Agreement’).
Since then Mr Jayasingha has been paid weekly compensation under section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’) at the following rates: $748.60 per week for 26 weeks to 24 December 2006 and $598.99 per week (being 80% of $748.60) from 25 December 2006 in accordance with section 38(3)(a) of the 1987 Act. Tristar submits that the figure of $748.60 per week is Mr Jayasingha’s current weekly wage rate under section 42 of the 1987 Act. Mr Jayasingha argues that his current weekly wage rate is $896.04 per week.
The determination of the correct current weekly wage rate was the only issue before the Arbitrator when the matter was listed for conciliation and arbitration on 24 May 2007. In a reserved decision delivered on 18 June 2007 the Arbitrator found in favour of Tristar.
Mr Jayasingha seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
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 quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
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.”
The Appellant Worker seeks an oral hearing to ensure that the matter is determined according to equity, good conscience and the substantial merits of the case. By his submissions in reply filed on 6 September 2007, Mr Jayasingha seeks to give oral evidence in respect of documents produced by Tristar in response to a request by his solicitor on 10 July 2007 that his personnel file be produced. I have before me detailed written submissions from both parties comprehensively dealing with the issues raised on appeal. I do not believe an oral hearing is necessary in this matter.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the Respondent 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 18 June 2007, records the Arbitrator’s orders as follows:
“1.The application is dismissed.
2.By 22 June 2007 the Applicant shall file and serve submissions on the issue of costs.
3.The Respondent may file and serve submissions in reply by 29 June 2007.”
A further Certificate of Determination was issued on 10 July 2007 in which the Arbitrator made the following order:
“1.No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator:
(a)misdirected himself in determining that Mr Jayasingha’s current weekly wage rate under section 42 of the 1987 Act should be construed by reference to the Metal Engineering and Associated Industries Award 1998 (‘the Metal Award’);
(b)misdirected himself by reading down the reference to “the current rate of pay” in clause 7 of the Agreement to mean “rate of pay” under the Metal Award;
(c)failed to give any or any adequate reasons for finding that the “the current rate of pay” in clause 7 of the Agreement has the same meaning as “rate of pay” in the Metal Award;
(d)wrongly assumed that Mr Jayasingha had been classified as a C11 employee under the Metal Award immediately before his injury, and
(e)failed to have proper regard to the weight of evidence to the effect that Mr Jayasingha was paid his current weekly wage rate by his employer and that that rate was the same as his actual rate of pay.
An issue also arises as to whether additional or fresh evidence should be allowed on appeal.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. This Practice Direction must now be read in the light of the Court of Appeal’s decisions in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158 and Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2005] NSWCA 319.
Mr Jayasingha seeks to rely on the following fresh evidence or additional evidence:
(a)payslip for Nicolas El-Hawi, Tristar employee number 04093, dated 1 May 2007;
(b)payslip for J T H Le, Tristar employee number 03580, dated 20 June 2006;
(c)an additional statement from himself dated 11 July 2007;
(d)documents sought from the Respondent Employer under letter from his solicitor (Bowery Lawyers) addressed to the Respondent Employer’s solicitor (Hicksons Lawyers) dated 10 July 2007. This letter sought Mr Jayasingha’s personnel file and documentation showing the implementation of any classification system under the Metal Award for classifying Tristar’s employees (including Mr Jayasingha) in the period 1987 until 2006, and
(e)letter dated 27 November 2000 from the general manager of Tristar to several trade unions.
Tristar seeks to rely on the following fresh evidence or additional evidence:
(a)letter to Bowrey Lawyers from Hicksons Lawyers dated 9 August 2007;
(b)letter to Hicksons Lawyers from Tristar’s Human Resources Administrator, Yvonne Arnold, dated 20 July 2007;
(c)letter to Hicksons Lawyers from Tristar’s Human Resources Administrator, Yvonne Arnold, dated 25 July 2007, and
(d)Mr Jayasingha’s personnel file.
I propose to allow the following material into evidence on appeal as it was not available at the time of the arbitration, it is relevant to issues to be determined, an injustice may result if it is not admitted, and both parties agree to it being admitted:
(a)letter to Bowrey Lawyers from Hicksons Lawyers dated 9 August 2007;
(b)letter to Hicksons Lawyers from Tristar’s Human Resources Administrator, Yvonne Arnold, dated 20 July 2007;
(c)letter to Hicksons Lawyers from Tristar’s Human Resources Administrator, Yvonne Arnold, dated 25 July 2007, and
(d)Mr Jayasingha’s personnel file.
In respect of the payslips from Mr El-Hawi and Mr Le, it is submitted that this evidence was not given at the arbitration because it was not anticipated that the Arbitrator would refer to the Metal Award after the arbitration and rely upon his interpretation of classifications within that Award in determining the claim. It is conceded that the Arbitrator gave the parties the opportunity to make further submissions after the arbitration but it is argued that that opportunity was limited to making further submissions on whether the words “rate of pay” in clause 7 of the Agreement “should be construed as referring to rates of pay under the [metal] award” (see Arbitrator’s Statement of Reasons for Decision (‘Reasons’), at paragraph 16). The Arbitrator did not seek submissions on the interpretation of the ‘classifications’ within the Metal Award. It is therefore argued that the Arbitrator’s decision proceeded on the basis of various assumptions about classifications of Tristar’s workers under the Metal Award that were incorrect and upon which Mr Jayasingha did not have the opportunity to make submissions.
The Respondent Employer’s submissions are difficult to follow and inconsistent. It submits that Mr Jayasingha had the opportunity to call evidence (specifically, the payslip evidence) at the arbitration and failed to do so. As a result it is argued that it is prejudiced in that the veracity of the evidence cannot be tested. I do not accept this argument. Not only has the solicitor for Tristar had no difficulty in getting instructions from his client, he seeks to tender fresh evidence in the form of a letter from Tristar’s Human Resources Administrator dated 20 July 2007.
It is further argued by Tristar that the evidence tendered at the arbitration “was sufficient for the Arbitrator to make his decision, and that this additional evidence would not further any oral or written argument put to the Arbitrator” (Respondent Employer’s submissions, 10 August 2007, paragraph 10). I do not accept this submission. If it were correct then there would be no need for the Respondent Employer to seek the admission of fresh evidence. It is then submitted, “the new evidence validates the Arbitrator’s decision”. If that is correct, there is no prejudice to Tristar.
Tristar made no specific submissions in respect of Mr Jayasingha’s statement dated 11 July 2007.
For the following reasons I believe that all of the additional evidence sought to be relied on by both parties should be admitted on appeal:
(a)the case unfolded before the Arbitrator in an unusual way with the Arbitrator informing himself of the contents of the relevant industrial award after the conclusion of the oral hearing and seeking further submissions from the parties. Unfortunately, the Arbitrator did not seek additional submissions on Mr Jayasingha’s classification under that award. That issue became critical to his determination and the parties were deprived of the opportunity of adequately dealing with it;
(b)therefore, whilst parties should be well aware that arbitration proceedings are not a ‘trial run’ and that all relevant evidence should be called at that hearing, the highly unusual circumstances of the present case make it appropriate, in order to do justice between the parties and to ensure that the matter is determined according to “equity, good conscience and the substantial merits of the case” (section 354(2) of the 1998 Act), that the fresh evidence be allowed on appeal;
(c)Tristar also seeks to rely on fresh evidence, and
(d)there is no identifiable prejudice to Tristar.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
LEGISLATION AND SUBMISSIONS
This appeal turns on the application of section 42 of the 1987 Act and the interpretation of the Agreement.
The Legislation
The relevant subsections of section 42 provide:
“42 Current weekly wage rate
(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 regulations for the 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 being incapacitated,
…
(8) In this section –
…
award means:
(a) an award in force under the Industrial Arbitration Act 1940 or an award or industrial agreement, within the meaning of the Conciliation and Arbitration Act 1904 of the Commonwealth, that is in force,
(b) an industrial agreement or enterprise agreement in force under the Industrial Arbitration Act 1940 or the Industrial Relations Act 1991 ,
(c) an agreement made under the Public Service Act 1979 or an agreement with respect to wages or salaries entered into under the provisions of any other Act by an employer constituted by that other Act with any association or organisation representing any group or class of employees, or(d) an award made by the Coal Industry Tribunal under the Coal Industry Act 1946 ,
(e) (without limiting the above) includes a State industrial instrument,
and includes any such award, industrial agreement or other agreement or instrument as from time to time amended.”
The Agreement
It is agreed that Mr Jayasingha was remunerated under the Agreement and that that document constitutes an ‘award’ under section 42 of the 1987 Act. The Agreement came into force on 24 May 2004. Clause 7 of the Agreement provides:
“Upon agreement by the Single Bargaining Unit; acceptance by employees covered by this agreement; and certification of the agreement by the Australian Industrial Relations Commission, the following payment schedule will apply:
4.5% to be paid from the first full pay period to commence on or after 1 January 2004
4.25% to be paid from the first full pay period to commence on or after 1 September 2004
4.25% to be paid from the first full pay period to commence on or after 1 September 2005
The base for these increases is the current rate of pay.
The parties agree to a gross payment of $450 per employee covered by the Agreement. This shall be payable by Friday 19 December 2003.” (emphasis added)
Clause 10 provides:
“This agreement shall be read wholly in conjunction with the Metal Engineering and Associated Industries Award 1998 Part 1 and 2 [the Metal Award]. Where there is any inconsistency between this agreement and the Award, this agreement shall apply.” (emphasis added)
The difficulty in determining Mr Jayasingha’s current weekly wage rate (‘the award rate’) is that the term “the current rate of pay” in the Agreement is not defined. It is not disputed that at the time of his injury Mr Jayasingha was being paid $869.04 per week. Tristar submits that this was an ‘over award payment’ and that his ‘award rate’ under the Agreement was $748.67 per week.
Tristar’s Argument
Tristar submits:
(a)at the time of Mr Jayasingha’s injury he was classified as a C11. The evidence in support of this submission is a letter from Tristar to Hicksons dated 8 May 2007 in which Yvonne Arnold, Tristar’s Human Resources Administrator, stated, “I believe Jaya was a C11 at [the] commencement but am unable to confirm at this stage”. In the same letter it was asserted that Mr Jayasingha’s “Award or Enterprise Agreement base rate of pay” at the date of injury was “$19.7019/hr - $748.67/week”. In addition, reliance is placed on Mr Jayasingha’s payslip for the period ending 13 June 2006, which refers to “Paypoint 11” and “Location 11”. It is argued that these are references to his classification;
(b)the words “the current rate of pay” in clause 7 of the Agreement should be read as referring to the award rate for an employee at the time of the Agreement;
(c)the alleged award or base rate of pay is arrived at from a letter from Yvonne Arnold to Bowrey Lawyers dated 5 March 2007, which states:
“The movements in the agreed C11 Classification rate (Jaya’s classification) as per the Tristar Steering and Suspension Australia Limited Certified Agreement 2003 were as follows:
Effective from July 01, 2002
$659.21/week
$17.3476/hour
4.5% on/after January 1, 2004
$688.87
$18.1283
4.25% on/after September 1, 2004
$718.15
$18.8987
4.25% on/after September 1, 2005
$748.67
$19.7019
Jaya’s pay rate over the same period:
Effective from July 01, 2002
$788.97/week
$20.7623/hour
4.5% on/after January 1, 2004
$824.48
$21.6968
4.25% on/after September 1, 2004
$859.52
$22.6189
4.25% on/after September 1, 2005
$896.04
$23.5802”
(d)as the Agreement and the Metal Award are to be read together it was appropriate, in the absence of a definition of the term “rate of pay” in the Agreement, for the Arbitrator to refer to the Metal Award, and
(e)the rate of pay for a C11 worker under the Metal Award at the date of injury was $527.50 per week (see Reasons, paragraph 15).
Mr Jayasingha’s Argument
Mr Jayasingha submits:
(a)the words “current rate of pay” in the Agreement should not be construed as referring to rates of pay under the Metal Award, unless the worker concerned was being paid under the Metal Award at the date the Agreement commenced. He was not being paid under the Metal Award at that time or at any other time;
(b)therefore, the “current rate of pay” is the amount he was receiving at the date the agreement commenced ($896.04 per week). That amount was different to the rate under the Metal Award;
(c)to the extent that there is an inconsistency between the Agreement and the Metal Award, the Agreement applies;
(d)when he was retrenched his entitlements were calculated at the rate of $896.04 per week, and
(e)there was no implementation of a proper classification system and he was not classified as a C11 worker;
DISCUSSION AND FINDINGS
In a very carefully prepared decision the Arbitrator meticulously considered the evidence and the competing arguments. He concluded that the term “current rate of pay” in the Agreement has the same meaning as it does in the Metal Award (Reasons, paragraph 21). Relying on Mr Jayasingha’s payslip, he accepted the Respondent Employer’s argument that Mr Jayasingha was classified under C11. The payslip referred to “Pay Point 11” and “Location 11” which the Arbitrator found were “references to a C11 classification”. The additional evidence presented on appeal reveals that there is no necessary correlation between the “Pay Point” and the “Location”, and a worker’s classification. In the payslip for Mr Le the entry C11 appears, but under “Pay Point” and “Location” the number “46” appears.
However, there is other evidence of Mr Jayasingha’s classification. In the “Workers Compensation Claim Form” completed on 13 June 2006, Mr Jayasingha’s classification or number is stated to be C11. This document also gives two figures for Mr Jayasingha’s “award” rate, $544.50 and $514.33. It also sets out the “actual current rate per week paid to you” as $896.03.
None of the documents produced in Mr Jayasingha’s personnel file provide any further assistance on this issue.
The Arbitrator referred to correspondence between the union and Tristar concerning classifications (Reasons, paragraph 24). The union asserted in a letter to Tristar dated 3 July 2002: “Our delegates have constantly raised the implementation of a classification structure with no satisfactory response”. The union again raised the issue in a letter to Tristar dated 12 February 2003. Tristar responded as follows by letter dated 10 March 2003:
“The matter [of classifications] was discussed with management once with delegates on 1 August 2002. The AMWU in previous discussions in 2000/2001 proposed the adoption of the Competency Standard as a way of simplifying the classification at Tristar. The Company is willing to adopt this method to formulate a more equitable classification. We propose a suitable date to be set up for a meeting to discuss this matter jointly with other unions.” (emphasis added)
The use of the expression “to formulate a more equitable classification” clearly implies that a classification system was in place, but it needed revision. This is consistent with Mr Jayasingha’s evidence in his statement of 28 March 2007 where he said at paragraph six:
“Tristar did not have a consistent classification structure for workers. There were very many different rates paid to different workers.”
In Mr Jayasingha’s statement of 11 July 2007 he states that he was never classified (paragraph four) and that when “C numbers” appeared on payslips in about 2000 a co-worker, who worked the same machine as Mr Jayasingha, had C10 on his pay sheet. When he questioned his employer he was told “Do not worry about it, you get the same pay”.
Having regard to the whole of the evidence (including the additional evidence allowed on appeal) I do not accept that Mr Jayasingha had never been classified. The evidence supports the conclusion that he had been classified as C11. Whether that classification was appropriate or fair is a separate matter that cannot be litigated in the Commission.
However, I do not believe that is the end of the analysis because Mr Jayasingha’s classification is not determinative of his current weekly wage rate under the Agreement.
The figure relied on by Tristar as establishing the “the current rate of pay” based on a C11 classification was $659.21 per week as at 1 July 2002 (see letter from Yvonne Arnold to Bowrey Lawyers dated 5 March 2007). There is no explanation of how Yvonne Arnold arrived at that figure. It was not the figure Mr Jayasingha was being paid. In addition, it was not the appropriate figure for a C11 worker under the Metal Award. At paragraph 15 of his Reasons the Arbitrator set out the Metal Award rates of pay. The award rate applicable for a C11 worker is said to be $527.50 per week. That figure is in fact the rate for Victorian workers. The rate for NSW workers as at March 2006 was $544.50 per week. It is therefore difficult to see how the figure $659.21 could be Mr Jayasingha’s “current rate of pay” at the time the Agreement commenced. At all material times he was paid at a rate well above that figure.
If the “the current rate of pay” was intended to be a reference to the rates for C11 workers in the Metal Award then it would seem reasonable to expect the Agreement to say that. That is, you would expect it to say ‘the base of these increases is the current award rate of pay under the Metal Award’. It does not say that or imply it. In my opinion, the words used in the Agreement should be given their normal meaning. The letter from Yvonne Arnold dated 5 March 2007 specifically refers to “Jaya’s pay rate”. Further, the wage increases sanctioned in the Agreement were applied to Mr Jayasingha’s actual earnings, not to the rate in the Metal Award.
In other words, Mr Jayasingha’s pay at the date of the commencement of the Agreement (his “current rate of pay”) was not determined by reference to the Metal Award. The Agreement applied certain pay increases to his “current rate of pay”. That expression is not defined. In these circumstances I do not see how it can be given any meaning other than ‘current rate of remuneration’. That rate was the amount he was being paid. At 1 July 2002 that figure was $788.97 per week. With the adjustments provided for in the Agreement, it increased to $896.04 as at the date of incapacity. As the Agreement was and is “an award” under section 42 of the 1987 Act, it provides the means by which Mr Jayasingha’s current weekly wage rate is determined.
Support for the above conclusion is found in Mr Jayasingha’s personnel file tendered on appeal. In a document headed “CONFIDENTIAL – PROOF OF INCOME – ANNUAL REVIEWS”, Mr Jayasingha’s “Normal Base Pay” for his most recent pay in March 2006 was stated to be “$896.05” [sic]. Subject to the one-cent difference, that is the amount Mr Jayasingha was being paid under the Agreement at the date of incapacity.
The parties properly agreed at the arbitration that under section 42 of the 1987 Act the Agreement was the award applicable (Reasons, paragraph 5). Tristar has not argued to the contrary on appeal. The rate of pay under the Agreement is much higher than under the Metal Award. To the extent that there is an inconsistency between the Agreement and the Metal Award, the Agreement applies. In that event, there was no reason for the Arbitrator to have resorted to the Metal Award. Its reference to “Rates of Pay For Adult Employees” in Part 5.1.1 was of no relevance to the determination of Mr Jayasingha’s “current rate of pay” under the Agreement.
CONCLUSION
It follows that the Arbitrator was in error in finding that Mr Jayasingha’s current weekly wage rate under section 42 of the 1987 Act was $748.67 per week and that he therefore had no entitlement to further compensation under section 38 of the 1987 Act. In my view the correct figure for Mr Jayasingha’s current weekly wage rate is $896.04 per week as that is the rate arrived at after the appropriate increases to his “current rate of pay” under clause 7 of the Agreement. The Agreement is the award under section 42 of the 1987 Act and it applies in the event of any inconsistency with the Metal Award.
As a result, the Arbitrator’s orders are revoked and Mr Jayasingha is entitled to an award under section 38 of the 1987 Act at the rates set out below. That entitlement ceased on 25 June 2007 and his entitlement after that date was not the subject of any submissions, either before the Arbitrator or on appeal, and will be a matter for agreement between the parties or, failing agreement, a further application before the Commission.
DECISION
The Arbitrator’s determinations dated 18 June 2007 and 10 July 2007 are revoked and the following orders made:
“1.Award for the Applicant worker under section 38 of the Workers Compensation Act 1987 from 26 June 2006 until 24 December 2006 in the sum of $896.04 per week and from 25 December 2006 until 25 June 2007 in the sum of $716.83 per week.
2.The Respondent employer to be given credit for payments made.
3.The Respondent employer is to pay the Applicant worker’s costs as agreed or assessed.”
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
Bill Roche
Deputy President
5 October 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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