Mcinerney v Hest Australia Ltd No. DCCIV-97-299 Judgment No. D3753

[1998] SADC 3953

VALERIE MARGARET MCINERNEY v HEST AUSTRALIA LTD

Civil
Judge Lunn

The defendant is the trustee of the Health Employees Superannuation Trust Australia, and is sued in that capacity.  The plaintiff was a beneficiary of this trust by virtue of having been employed by Anglican Community Services as a nurse’s assistant at the Karingal Nursing Home at Welland where she worked between about 13 October 1989 and June 1990.  The defendant took out an insurance policy with National Mutual Life Association of Australasia Ltd (“National Mutual”) for the benefit of the members of the trust.  The terms of that policy are contained in a proposal document (“the proposal”).

The plaintiff alleges that she was injured in the course of her employment in June 1990 and has been unfit for any work ever since.  In this action she seeks declarations, and consequential relief, that she is entitled to certain benefits as a member of the trust under the proposal because she has become “totally and permanently disabled” within the meaning of the proposal.  It was common ground that she could only be entitled to such benefits if she was a “Full Time Employee” as defined in the proposal.  By consent, a Master made an order for the trial of the preliminary issue of whether she was a “Full Time Employee”.  Counsel agreed this meant that I had to determine whether she was entitled to the relief sought in para 15(a) of the Statement of Claim, namely “a declaration that the plaintiff is and was at all material times a full time employee within the meaning of the Rules”.  It was agreed that for these purposes the “Rules” meant the proposal.  As will be seen later the issue arising under the third schedule of the proposal is slightly narrower in that it is whether the plaintiff was a full time employee at the time of becoming totally and permanently disabled.  Regrettably, the preliminary issue was not defined with sufficient precision by the order of 20 October 1997.

At the outset I indicated that I was not prepared to consider granting any declaratory relief unless all parties who may be affected by the declaration in the plaintiff obtaining any payment under the policy were before the Court: Associated Grocers Ltd v Hubbard Properties Ltd (1986) 42 SASR 321. Although National Mutual is not a party to the action, I am informed that it has agreed to be bound by my decision. The plaintiff was content with this and did not seek that it be made a party to the action in order to bind it to the result.

Under clause 14(a) of the proposal it is to be governed and construed under the law of Victoria.  There is a rebuttable presumption that it is the same law as in this State: Wright Heaton & Co v Barrett (1892) 13 LR NSW (L) 206  Nothing was put forward to suggest that it differed from the applicable law in this State.  I decide the matter on the basis that the relevant law in this State is the same as it is in Victoria.

Clause 1(2) of the third schedule to the proposal provides certain benefits are payable when a member “(i) who is a Full-Time Employee ceases to be an Employee on becoming Totally and Permanently Disabled”.  The issue which I have to determine is whether the plaintiff was a “Full Time Employee” for the purposes of that clause.

The first schedule to the proposal states:

“’Full-Time Employee’ means an Employee who is employed by an Employer to work at least thirty hours per week.”

Clause 1(2)(i), as quoted above, only requires that the employee be a “Full Time Employee” at the time she ceases to be an employee upon becoming totally and permanently disabled.  “Totally and Permanently Disabled” is defined in the first schedule in terms that the employee must have first been absent from her employment for six consecutive months.  Thus whether the plaintiff was a full time employee is to be assessed on the position which existed at least six months after she was injured.  This must mean that whether she was a full time employee within the definition has to be assessed by a categorisation of the terms of her employment and not by reference to the hours which she was then actually working because she could not have been actually working at this time..  That is consistent with the words in the definition “..... who is employed .... to work ....”.  That approach to the definition of “Full Time Employee” is not inconsistent with clause 1 of the third schedule and clause 2 of the fourth schedule, which are the only operative parts of the proposal referring to “Full Time Employees”.

Clause 1(2)(i) of the third schedule appears to make the time of the cessation of employee’s employment a factor in determining the relevant time at which the status of “Full Time Employee” is to be assessed.  There is no evidence on the point and it was not referred to at the trial.  Therefore, I presume that it is of no relevance.

I accept the uncontradicted evidence of the plaintiff that initially she was employed casually to work morning shifts on Thursday, Friday, Saturday and Sunday of each week which would be from 7am to 3pm.  There was no suggestion that these terms of her employment were subsequently varied.  It is irrelevant that during the course of her employment the number of hours actually worked by her in each week sometimes was less than, and sometimes was more than, those for which she was employed to work.

The terms of the contract of employment between the plaintiff and Anglican Community Services are to be viewed against a background of the relevant Industrial Award as the parties could not make a contract inconsistent with that Award.  Under that Award the plaintiff was entitled to a meal break of at least 30 minutes during each shift as was reflected in her time sheets.  Her actual working time for a full shift was 7.5 hours and this is what she was paid for.  This means that within the definition of “Full Time Employee” she was employed to work 30 hours per week.

Most of the evidence was directed towards an ancillary question of whether the plaintiff came within an exception to the Award whereby her lunch break of 30 minutes attracted a special allowance payment because she had been directed not to leave the premises during her meal break or was otherwise unable to take her meal breaks free of all duties.  I find that while the plaintiff was required to inform her employer when she left the nursing home premises during her meal break, this was only because of logistic and safety considerations and neither that nor anything else amounted to a direction by the employer for her not to leave the premises.  Likewise occasional interruptions to the meal breaks when they occurred because of the need to give special assistance to other staff on duty did not attract any special payment under the Award, but merely entitled the meal break to be extended.  Under the terms of the Award the fact that any special allowance was payable for the period of the meal break did not mean that the plaintiff was employed to work during the period of that meal break for the purposes of the definition of “full time Employee”.

The definition of “Full Time Employee” refers to work for “at least 30 hours per week”.  I reject the defendant’s submission that the use of “at least” means that the definition is only satisfied by work for something more than 30 hours per week and not by work for only 30 hours per week.  In its context the definition is satisfied by work for exactly 30 hours per week.  This is the normal and usual English meaning of “at least”.  The defendant cited a number of authorities where “at least” in specifying a period of time had been interpreted as referring to clear days, but, as was acknowledged by Fullagar J in Associated Dominions Assurance Society Pty Ltd v Balmford [1950] ALR 672 at 678, those authorities are not of universal application and only apply to define a period on the expiration of which an act may be done, which is not the case here. As Chitty J said in Re Railway Sleeper Supply Co (1885) 19 Ch D 204 at 208 there is no distinction between 14 days and at least 14 days. “At least three separate occasions” in s74(2) of the Criminal Law Consolidation Act 1935 clearly does not mean four occasions.

Accordingly, a declaration will be granted that the plaintiff was “a Full Time Employee” at the relevant time.  I will hear the parties on the precise form of the order.  The action will be referred back to a Master for directions for the resolution of the balance of the issues.  I note that it is not part heard before me in respect of those issues.