Lister v Woolworths Ltd

[2005] HCATrans 550

[2005] HCATrans 550

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S359 of 2004

B e t w e e n -

RUTH ANN LISTER

Applicant

and

WOOLWORTHS LIMITED

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 AUGUST 2005, AT 9.32 AM

Copyright in the High Court of Australia

MR S.G. CAMPBELL, SC:   May it please the Court, I appear with my learned friend, MR P.R. STOCKLEY, for the applicant.  (instructed by Kennedy & Cooke)

MR R.C. KENZIE, QC:   If it please the Court, I appear with my learned friend, MR I. TAYLOR, for the respondent.  (instructed by Moray & Agnew)

GLEESON CJ:   I think we asked the Registry to mention to the parties that both Justice McHugh and I own some shares in Woolworths Limited, which I assume probably has no financial interest in the outcome of this application anyway.

MR CAMPBELL:   It was mentioned to us, your Honour, and we have no objection to your Honours hearing it.

MR KENZIE:   Our position is the same, your Honour.

GLEESON CJ:   Yes.  I trust they insure themselves.  Yes, Mr Campbell.

MR CAMPBELL:   Thank you, your Honour.  Your Honours, may I say by way of opening that we respectfully submit that this case involves an important question being the question of how you compute the rate of compensation payable to part‑time workers who are totally incapacitated under the Workers Compensation Act 1987.

The provision that deals with that, your Honours, is section 42 of the Act which we have extracted in full, starting at page 9 of the authorities we have filed with the Court.  We hope, your Honours, that the legislation is acceptable in this particular form.  Your Honours will have noticed from reading the written argument of both parties that each of them draws comfort from the previous decision of the Court in the matter of Rizzi which was decided concerning virtually identical provisions in the 1926 Act.

Your Honours, both parties agree, it would seem, that the critical part of the legislation for the resolution of the issue in this case is the closing words of section 42(1)(a):

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 – 

Now, where company is parted is concerning the significance of subsection (4) which we submit, your Honours, is the decisive provision for the purpose of determining Mrs Lister’s rights.  That, your Honours, provides, if I may read it:

if the amount of a part‑time worker’s current weekly wage rate . . . exceeds the worker’s average weekly earnings –

then a reference to that rate –

is a reference to those average weekly earnings.

We submit that employing ordinary principles of construction that, with respect, the Court of Appeal fell into error by, as it were, not reading the whole of the relevant provision and giving all of it work to do.  Now, might I submit, your Honours, that ‑ ‑ ‑

McHUGH J:   What do you say about your opponent’s argument that subsection (4) applies not only to paragraph (a) but also to paragraphs (b), (c) and (d) of section 42(1)?  So it has work to do contrary to your argument.

MR CAMPBELL:   The various subparagraphs of subsection (1) apply in different factual situations, your Honour, depending upon the legal situation governing the rate of remuneration for different types of employees and different types of work so, yes, it does apply to all of those situations but we submit it applies equally to paragraph (a).

McHUGH J:   I thought the thrust of your argument in‑chief was that unless your construction of 42(1)(a) was adopted then 42(4) had no work to do?

MR CAMPBELL:   Well, perhaps we say that…..your Honour.  I would have to amend that to say it would have no work to do in a factual situation to which paragraph (a) applied, and we submit that the whole of the provision, in relevant terms, should be looked at as applying to all workers, according to which category you fall into of subsection (1).

GLEESON CJ:   Subsection (4) looks as though it is aimed at reducing entitlements?

MR CAMPBELL:   It is capable of doing that, your Honour, certainly, and it certainly has an effect making sure that you do not get overcompensated, but it can apply equally to make sure you do not get under‑compensated in situations like the present.

GLEESON CJ:   But the present situation in which your client was rostered to work for 20 hours a week, and on your argument she is entitled to be compensated as though she worked for 38 hours a week.

MR CAMPBELL:   Not at all, your Honour, because what we say is a two‑step process.  The starting point only is that the figure provided for one week which happens to be 38 hours, and that is $506, then you need to make an adjustment by reference to subsection (4).  That adjustment is necessary because she is a part‑time worker working less than 38 hours per week.  So she gets no more than her average weekly earnings which represents the actual rate at which she was remunerated prior to the injury, and as we have set out, your Honours, at section 3 of our summary of argument, which is on page 42 of the application book at line 10, we have set out how that has a practical effect in this case.

Your Honours, of course, will be aware that section 42 works in conjunction in respect of total incapacity with sections 36 and 37.  So the way it works is, we say, your Honours, that Mrs Lister would for that first 26 weeks get that sum of $430 or thereabouts which is not more than she was receiving for the work she was doing.  That is the actual rate at which she was being remunerated on average during the 12 months before her injury.  After the period it is reduced slightly because she is not entitled by dint of section 36(2) to any more than her current weekly wage rate, but section 37(1) specifies or prescribes a statutory rate, and that is the figure produced.

The situation factually, your Honours, is this that although the roster provided for 20 hours per week work, we submit that because the employer had the option of directing other hours be worked during a given week that in fact Mrs Lister received more than merely 20 hours per week.  Now, as a matter of simple construction, we respectfully submit, you look at section 42(1) and you find that this particular award, your Honours, does specify a rate for one week for people who have her classification.  That is the sum of $506 per week.  We concede she is not entitled to that but she is not entitled to that by reference to subsection (4), and in those circumstances, your Honours, we say that the average weekly earnings in this case hold sway.

It might be worth considering, your Honours, if I could go back to the language of the section that it is not only workers in Mrs Lister’s category who have their rights determined by reference in the end to average weekly earnings.  As your Honours will see that in the situation provided for by subsection (1)(d) other workers who might be working full‑time but are not covered by the situation the subject of paragraphs (a) to (c) also have their rights determined by reference to a prescribed proportion of their average weekly earnings which is dealt with and defined in section 42(8).

As was said in the written argument, your Honours, we submit that the interpretation for which we contend is borne out by the passage in Rizzi

which we have extracted in our written argument at 43 of the book at line 31, so that, in our submission, the argument for which the applicant contends is consistent with this Court’s decision in Rizzi and, with respect, the decision of the Court of Appeal is not.

Could I finally say, your Honours, that we had extracted in the application book and annexed to an affidavit figures published by the Department of Employment and Workplace Relations in relation to employment in New South Wales as at January 2005.  If your Honours turn to page 58 your Honours will see a table there, which might be a little impenetrable, but your Honours will see, if you look down the first column, that part‑time workers in New South Wales represent nearly 900,000 people.  If your Honours look further down the column where the figures are broken up into gender your Honours will see that this case affects more women than men and, we submit, on that basis that this is a matter which, with respect, merits the consideration of this Court.  May it please the Court.

GLEESON CJ:   Thank you, Mr Campbell.  Yes, Mr Kenzie.

MR KENZIE:   Thank you, your Honour.  Your Honour, our general position is that this is a matter in which the Court would be satisfied that sufficient doubt about the correctness of the decision is not exhibited and that this is a case where the Court of Appeal was simply applying correctly the reasoning in Rizzi for reasons that are set out in our submission and I will come very briefly to the key submissions there.

McHUGH J:   You may be right, but the merits of the case are against you, are they not?  The merits of the case are against you in that this applicant is being compensated on the basis of 20 hours per week when we know as a matter of fact that she worked a lot longer.

MR KENZIE:   No, your Honour, that is one of the problems in this case.  There is no evidence about that.  There is evidence about the total earnings throughout the year but your Honour does not know ‑ ‑ ‑

McHUGH J:   That itself tells you something, does it not?

MR KENZIE:   But it does not tell you anything that is relevantly useful, your Honour.  It tells you – what you know is that at the time relevant for the section the applicant was working pursuant to a 20 hour a week roster.  There is no evidence as to the circumstances in which the applicant was working throughout the period of the year.

GLEESON CJ:   That is what I was wondering, how did it come about that her average weekly earnings were higher than the rate that you say ‑ ‑ ‑

MR KENZIE:   There is no evidence, as far as I am aware, your Honour, as to how ‑ ‑ ‑

GLEESON CJ:   What are the possibilities?

MR KENZIE:   The possibilities are that the applicant was working pursuant to a different roster earlier in the year.  The possibilities include the possibility that the applicant was performing a considerable amount of additional hours in overtime over and above any particular roster to which the applicant was working.  The evidence is not there, your Honour.  You do not know.  What you do know is that at the time that the section focuses on, that is the time immediately prior, the roster was a 20‑hour roster and the Court of Appeal correctly acknowledged and recognised that the award provided for a computation for the capacity to compute in the case of a worker working a 20‑hour roster what the weekly earnings of a worker working a 20‑hour roster would be ‑ ‑ ‑

GLEESON CJ:   Average weekly earnings is average over what period?

MR KENZIE:   Twelve months, your Honour, and the roster in question was as appears from the Compensation Court judge’s decision on page 3 of the application book.  The roster was a roster that was entered into on 19 April 2001, a period relatively – about two months prior to the events that gave rise to the present litigation.

McHUGH J:   But whatever the evidentiary gaps in the applicant’s case, the fact is that the construction for which you contend is one that is likely to give rise to considerable injustice and rather calls for this legislation to be amended to overcome a potential injustice ‑ ‑ ‑

MR KENZIE:   Your Honour, it may or may not, depending upon the particular circumstances.  Now, if the evidence is one way, the result may be as your Honour indicates.  It is capable of giving rise to that result – I have to concede.  It is also capable of giving rise to the opposite result.  This case for that reason is not a suitable vehicle to ventilate the issues that your Honour is suggesting, because the evidentiary circumstances do not provide a suitable basis.  If you knew what had happened after the balance of the year, if you knew that there was evidence about that the considerations may be different, but all that you do know is that the Court of Appeal was applying a perfectly well‑settled approach to this legislation, and on the evidence before the Court was coming up with a perfectly predictable result.

Your Honour, our friends suggest that the proper approach that should have been taken was the two‑step approach that was indicated in his argument.  The problem with his two‑step approach is that you have to defend the first step.  You have to defend that first step, your Honour, and our submissions go to that.  If I can very briefly direct your Honours’ attention to the position there.

Our position is that the enterprise agreement provided a method for the fixing of a rate – this is within the meaning of section 42(1)(a) which your Honours will find set out at page 48 of the application book in paragraph 8 of our submission, and our position, of course, is that the enterprise agreement provided a method for the fixing of the rate for a part‑time employee such as the applicant, and that was a rate calculated pro rata on that part‑time employee’s rostered hours, and in the case of the applicant that rate was and had to be $266.20 a week, namely, 20 hours at $13.31 an hour with the $13.31, your Honours, derived from the award entitlements described in paragraph 4 of our submission, and that is on page 46 of the appeal materials.

Your Honours, I notice that the full agreement is not in the application book but, your Honours, sufficient for present purposes emerges from paragraph 4 of the contention.

GLEESON CJ:   Your argument is that you never get to subsection (4) because by applying 42(1)(a) you do not get a result that the part‑time worker’s current weekly wage rate exceeds the worker’s average weekly earnings?

MR KENZIE:   That is true, and the essential difference between us, your Honour, is that the applicant really says that the award only fixes a weekly rate for a full‑time employee working 38 hours per week, which is $506.  Our contention is that it also provides for the fixing of a weekly rate for a part-time employee based on that part‑time employee’s ordinary hours per week, and it does that by reference to the full‑time weekly rate of $500‑odd set out in clause 11 for 38 hours, but the weekly rate set out in clause 11 of the agreement, $506, is not the rate of remuneration for one week for a part‑time employee, and it was for that reason that the Court of Appeal disposed of the matter as briefly as it did, and you will find that on page 31 of the application book.  In paragraph 31 of the Court of Appeal’s decision, which is the only aspect of the decision which deals with this matter ‑ ‑ ‑

GLEESON CJ:   I think the matter went to the Court of Appeal on a different point?

MR KENZIE:   It did.  The substance of the matter was a larger issue of construction.  There were two points of contention and the only matter which has survived to this stage is the second of the two points of

contention, and that is the point of contention that is addressed in paragraph 31 where the Court of Appeal said that the short answer to the second point of contention was:

that the worker’s current weekly wage rate was that appropriate for a part‑time employee rostered for 20 hours work a week.

That amounts to a simple application of Rizzi to the facts of this case.  There is nothing remarkable about that, your Honour.

McHUGH J:   Your opponent wants 42(4) to work up as well as down?

MR KENZIE:   Yes, that is so, and it cannot and, your Honour, our opponent also wants the conclusion that the award only fixes a rate for a full‑time employee working 38 hours per week which with the conclusion that a part‑time employee working a 20 hour roster is said by the Act to be effectively on a weekly rate or entitled to a weekly rate of $506 which this employee was not.  So that the first stage of our friend’s argument is a stage at which he fails, and you do not get to the stage of then reading the $506 down by reference to the other provisions.  You just do not get there, your Honour.

So we say that this is not a matter which is attended with sufficient doubt.  It is no more than a matter in which the court was applying a settled principle, your Honour.

GLEESON CJ:   Thank you.  Yes, Mr Campbell.

MR CAMPBELL:   Your Honours, can I take the last point first?  This case is factually different from Rizzi inasmuch as the award in Rizzi did not provide, interestingly enough, for a weekly rate for a shearer.  It provided two different bases.  In this case, this award provides a rate for one week for a retail worker grade 2, a retail worker grade 2 being Mrs Lister’s classification.  That rate is $506 per week or $506.  That is the only current weekly wage rate, we say, provided for in this award.

In this case, you do not have to go the extra step that the Court went in Rizzi because the figure is there, but you do have to apply subsection (4) to avoid overcompensation.

Could I just simply say this, your Honours, that at trial the case proceeded on agreed facts and the substantial point of law which was disposed of by the Court of Appeal was the main area of contention, but there was no objection to the tender of the evidence of the worker’s average weekly earnings at that stage.  If there was to be some evidence that that was not a true reflection of her actual rate of remuneration then one might

expect it would come from the camp of one party rather than the other, and, in our submission, the only real inference is that she was earning on average relevantly more than the $266.  May it please the Court.

GLEESON CJ:   Thank you.  We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter.  The application is dismissed with costs.

AT 9.55 AM THE MATTER WAS CONCLUDED