Minister for Immigration and Community Services v Summerscales
[2000] NFSC 4
•8 November 2000
SUPREME COURT OF NORFOLK ISLAND
Minister for Immigration and Community Services v Summerscales [2000] NFSC 4
WORKERS COMPENSATION – application of provisions in respect of incapacity suffered by a casual employee also in full-time employment with another employer.
Employment Act 1988 (N.I.) – s 7, s 8, s 18, s 22, s 27, s 28, s 30
Employment Regulations 1991 – Reg 3
Thompson v Armstrong & Royse Pty Ltd (1950) 81 CLR 585 referred to
State Rail Authority of New South Wales v Belgrove (1982) 2 NSWLR 738 referred to
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 followed
Bishop v Deakin [1936] 1 Ch 409 referred to
Chelfco Ninety-Four Pty Ltd v Road Traffic Authority (1985) VR 1 referred toBennion, “Statutory Interpretation”, 3rd Ed. (1997) referred to
MINISTER FOR IMMIGRATION AND COMMUNITY SERVICES V ALLAN SUMMERSCALES AND PINETREE TOURS
SC 5 of 2000
CORAM: BEAUMONT CJ
DATE: 8 NOVEMBER 2000PLACE: SYDNEY (HEARD IN NORFOLK ISLAND)
IN THE SUPREME COURT )
) SC 5 of 2000
NORFOLK ISLAND )
ON APPEAL FROM THE EMPLOYMENT TRIBUNAL
BETWEEN:MINISTER FOR IMMIGRATION AND COMMUNITY SERVICES
Appellant
AND:ALLAN SUMMERSCALES
First Respondent
ANDPINETOURS TOURS
Second Respondent
ORDERS
BEAUMONT CJ:
8 NOVEMBER 2000THE COURT ORDERS THAT:
1.The appeal is dismissed.
IN THE SUPREME COURT )
) SC 5 of 2000
NORFOLK ISLAND )
ON APPEAL FROM THE EMPLOYMENT TRIBUNAL
BETWEEN:MINISTER FOR IMMIGRATION AND COMMUNITY SERVICES
Appellant
AND:ALLAN SUMMERSCALES
First Respondent
ANDPINETOURS TOURS
Second Respondent
REASONS FOR JUDGMENT
BEAUMONT CJ:
8 NOVEMBER 2000INTRODUCTION
The Minister for Immigration and Community Services (“the Minister”) appeals from a determination of the Employment Tribunal (“the Tribunal”) made on 23 May 2000 pursuant to s 85 of the Employment Act 1988 (N.I.) (“the Act”). The appeal raises important questions as to the meaning and operation of the provisions of Part III of the Act (which provides for compensation for work-related accidents) and in particular, a question as to the application of those provisions in respect of incapacity suffered by a casual employee also in full-time employment with another employer.
The background facts were not in dispute and are as follows.
Allan Summerscales (the first respondent) was employed by Michael Prentice, trading as Pinetree Tours (the second respondent), as a casual employee to perform services as a tour guide and actor in entertaining tourists. At the same time, Mr Summerscales was employed full-time by the Administration of Norfolk Island within “Norfolk Telecom” as a technician/linesman. The total sum of Mr Summerscales’ average weekly earnings was $637.60, being $523.60 per week from Norfolk Telecom, and $114 per week from Pinetree Tours.
On the evening of 10 February 2000, while working for Pinetree Tours, Mr Summerscales fell off a bridge and injured his back. As a result, he was unable to work in the period 11 – 23 February 2000.
Mr Summerscales made a claim upon Pinetree Tours for compensation in an amount equal to the total amount of his earnings for the period being five days following the accident. (The reason for the period of five days is explained below.) Pinetree Tours refused that claim in part, declining to pay at a rate in excess of the average weekly wage which Pinetree Tours had paid Mr Summerscales.
Mr Summerscales then applied to Norfolk Telecom for recognition of an entitlement to sick leave in respect of this period. Norfolk Telecom refused the application.
After an unsuccessful attempt to conciliate the matter, Mr Summerscales applied to the Tribunal under Division 2 of Part V of the Act for adjudication of his claims. The Tribunal stated the issue thus:
“The question to be resolved is: Should Pinetrees pay the first five days at the rate of the combined earnings or only at the rate of [the] earnings in its employment?”
The Tribunal determined that Pinetree Tours was liable only to the extent of the usual rate of earning in its employment ($114 p.w.) and Mr Summerscales was liable to refund to Pinetree Tours any payment received in excess of $114.
The Tribunal went on to observe that Norfolk Telecom was liable to Mr Summerscales for sick leave.
THE LEGISLATIVE SCHEME
Relevantly, the scheme of Part II of the Act (dealing with minimum wages and working conditions of employees) is as follows.
·Although there is a definition of “casual employee” (see below), there is no special definition of an “employee” which is relevant for our purposes. (It was common ground that Mr Summerscales was an employee of Norfolk Telecom.) An employee is a “casual employee” if (relevantly) the employee is employed for half the number of hours that constitute a working week applicable to an employee (s 22). (It was common ground that Mr Summerscales was a “casual employee” of Pinetree Tours.)
·Where an employee is absent from duty by reason of ill health, the employer shall pay the employee for each period of absence at not less than the rate at which the employee would have been paid if the employee had not been absent by reason of ill health (s 18(1)). An employer is liable to pay sick pay to an employee for not less than five days in any calendar year (s 18(2)). The provisions of s 18 do not apply in the case of a casual employee (s 22(4)).
·Subject to s 8(2), the Act applies to employees of the Administration (s 7(2)). (It was common ground that Mr Summerscales was an employee of the Administration.) However, the regulations may prescribe that the Act does not apply to Administration employees, or applies to the extent specified in the regulations (s 8(2)). By virtue of Reg 3 of the Employment Regulations 1991, the provisions of Part III of the Act (dealing with compensation for work-related accidents) apply to Administration employees, but the provisions of Part II do not. By s 30(1) of the of the Public Service Act 1979, it is provided that if an officer is unfit to work because of illness or injury, leave of absence may be granted.
The scheme of Part III of the Act (dealing with compensation for work-related accidents) is relevantly as follows.
·Where an employee suffers “incapacity”, the employer shall pay to the employee periodical compensation in accordance with s 30 (s 30(1)). “Incapacity” includes a personal injury by reason of a work-related accident suffered by an employee as a result of which there is a loss or diminution of the employee’s capacity to earn (s 28(1)(a)).
·The circumstances in which an occurrence is deemed to arise out of, or in the course of, employment are provided for by s 27, but it is not necessary to mention them here.
·For the purposes of s 28(1)(a), the physical and mental consequences of personal injury constitute “incapacity” where, as a result of those consequences, there is a loss or diminution of the employee’s capacity to earn (s 28(2)).
·“Total incapacity” means total loss, whether temporary or permanent, of the employee’s capacity to earn by reason of the incapacity (s 30(2)).
·Where an employee suffers total incapacity, compensation shall be (a) payment “as if the period of incapacity were a period of absence of duty under [s] 18 by reason of ill health in respect of the 5 working days next following the commencement of the incapacity” (emphasis added); and thereafter (b) fortnightly payments of an amount equal to the prescribed amount or the amount the employee would have received had the employee not been suffering incapacity where that amount is less than the prescribed amount (s 30(4)).
·Subject to s 30(8) (which imposes a two year limit) compensation under s 30(4) is payable until the employee ceases to suffer total incapacity (s 30(5)).
THE TRIBUNAL’S DECISION
The Tribunal said:
“It is submitted … [on behalf of the Minister] that sick pay does not apply to casual employees. However, S22(5) provides that casual employees shall be paid not less than an amount equal to the prescribed minimum wage plus a 15% loading. This loading would seem to be compensation for sick leave and annual leave entitlements. In any event, sick leave for casual employees is not relevant to this matter.
In the case of Thompson v Armstrong & Royse Pty Ltd [(1950) 81 CLR 585] the reference is to the employee’s ability to obtain work during his annual leave and is helpful only in defining total incapacity to earn. It does not outline a possible additional amount that Thompson could have earned in his holidays if he had not been incapacitated.
It is submitted … that ‘no objection to this approach can be taken on the basis that the burden … falls disproportionately on one employer over another’ and the time is ‘only five days’. On Norfolk Island it is not unreasonable to have the following scenario –
A worker earns $700 per week at his normal full-time employment. He earns another $100 per week at a second job and then works one hour at $10 per hour in a small retail outlet which only makes a small profit. He is injured whilst working at this last job and is incapacitated for one week.
In such an instance, the Tribunal considers payment of $810 by the last employer to be a very disproportionate burden.”
The Tribunal went on to say:
“One important purpose of the Employment Act is to ensure that a worker does not suffer loss of income because of a work-related injury. There is no reference in the Act to the situation of an employee working for more than one employer. Reference to handbooks produced to assist employees and employers indicates that the employee continues to receive his usual pay for at least 5 days from his employer.
Part III of [the Norfolk Island Employment] Act talks about an injury occurring during the course of employment. In this instance the employment was with Pinetree Tours. Mr. Summerscales applied to Telecom for paid sick leave. This was refused on the grounds that Part III of the Act applied.
Section 18 says:
Sick Pay
18. (1) Subject to this section where an employee is absent from duty by reason of ill health, the employer shall pay the employee for each period of absence at not less than the rate at which the employee would have been paid if the employee had not been absent by reason of ill health.
As far as Telecom is concerned Mr Summerscales was incapacitated due to illhealth (accident). His injury did not happen during the course of his employment with them. If the accident had been other than work-related and he was incapacitated he would have received his sick leave entitlements and no compensation.
It is obvious that in the drafting of the existing Employment Act no consideration was given to the possibility of a worker having more than one employer. Given the situation prevalent on the Island today we strongly recommend that steps be taken to remedy the omission. In the absence of any specific reference in [the Norfolk Island Employment] Act to multiple employment situations, it is necessary to err on the side of justice when more than one employer is affected.
The Tribunal finds that [Pinetree Tours] is responsible for its usual payment to [Mr Summerscales] for the first five days of his incapacity. [Mr Summerscales] is entitled to sick pay from Norfolk Telecom for the first five days of his incapacity, just as he would be for incapacity resulting from an injury sustained other than in a work-related incident.
The Tribunal directs that the amount in excess of $114.00 paid by Pinetree Tours to Mr. Summerscales on April 11, 2000 be refunded in such a manner as is mutually agreeable to the parties.”
THE MINISTER’S APPEAL
The Minister, as a “person aggrieved”, now appeals to this Court under Div 3 of Part V of the Act. Where (as here) the matter in issue is less than $2,500 in value, the appeal is limited to questions of law (s 92(2)). The Tribunal shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 83(b)).
The grounds of the Minister’s appeal are as follows:
“1.The Tribunal erred in law and misdirected itself in determining that [Mr Summerscales] was entitled to sick pay from another employer.
2.The Tribunal erred in fact in construing that there was any evidence before it, or any admissible evidence, that [Mr Summerscales] was entitled to sick pay from another employer, and so finding.
3.The Tribunal misdirected itself in attaching undue weight, or any weight, to [Mr Summerscales’] employment with Norfolk Telecom, in reaching its decision.
4.The Tribunal erred in law and misdirected itself in its finding, implicit in the reasons given on the 23rd May 2000, that:-
(a)compensation payable pursuant to section 30(4)(a)(i) of the Employment Act 1988, could be determined only by reference to the usual amount paid by the employer during the period provided by that sub-section;
(b)total compensation payable pursuant to the said section could include, comprise of, or be mitigated by, a period of sick pay owing by another employer.
5.The Tribunal erred in law and misdirected itself in failing to interpret section 30(4)(a)(i) of the said Act as requiring the payment of compensation as if [Mr Summerscales] were entitled to sick leave for a period of five normal working days employed in his usual duties.”
In this connection, the Minister relies upon the decision of the High Court in Thompson, above. It will be recalled that Thompson was distinguished by the Tribunal in its reasons.
The question in Thompson, a case of total incapacity, concerned the amount of workers’ compensation where public holidays and an annual holiday period occurred during the incapacity, and where payment made was made to the employee under an industrial award during the period of the employee’s absence from work. The Court was evenly divided on the question whether the employee was entitled to both wages and compensation for the period of his annual holidays.
Reliance is placed by the Minister upon the following observations of Latham CJ (at 595):
“The case for the employer was argued upon the basis that when full wages were paid there was no incapacity within the meaning of the Act because the fact that the worker was paid full wages showed that his economic capacity was unimpaired whatever might be the case with respect to his physical capacity. The strange result of the adoption of this argument in the present case would be that the worker was incapacitated for work within the meaning of s. 9 of the Act on 18th and 19th December, but that he became capable for work during the succeeding period of about two weeks, even though he might not have been able to get out of his bed. In my opinion this argument does not give proper effect to the words of s. 9. The phrase ‘where total or partial incapacity for work results from the injury’ must refer to physical injury resulting in physical incapacity for actually doing work. That incapacity is relevant where it produces an incapacity to earn his living as he did before the injury (per Evershed L.J. in Ruocco v. Surrey County Council) in a market for his labour which was reasonably accessible to him (Birch Brothers Ltd. v. Brown). Otherwise it is irrelevant for the purposes of the Act. It is in this sense that ‘incapacity’ in s. 9 can be said to mean incapacity to earn wages. A payment of money by the employer does not and cannot terminate or in any way affect the existence of any physical incapacity. In the present case, therefore, I am of opinion that the appellant was in fact totally incapacitated for work during the whole period of annual leave and that the argument that there was no incapacity during that period should not be accepted.”
The Minister further relies upon these observations by Kitto J (at 623 – 624):
“‘Incapacity’ is physical, not legal, and s. 9 has nothing to do with ‘the right to full wages’. It is concerned with the capacity to earn wages by working, and the inquiry for which it calls is an inquiry as to the effect of the injury on the physical ability of the worker to give labour in exchange for wages.
In the present case the appellant’s injury destroyed, for the relevant period, his physical ability to sell labour for wages. The wages he got during that period were not produced by any labour performed in that period, and their receipt has, I think, no bearing upon his capacity or incapacity for work. I am of opinion that the case falls squarely within s. 9 as one of total incapacity for work, and the appellant is entitled to a weekly amount of compensation which, since he is an adult male worker, must not be less than £2 per week.”
It is submitted for the Minister that the approach of Latham CJ and Kitto J is reflected in the language and the effect of the provisions of s 30(2) of the Act. It will be recalled that it is there provided that “total incapacity” means total loss, whether temporary or permanent, of the employee’s capacity to earn by reason of the incapacity.
The Minister further relies upon the decision, by a majority, of the Court of Appeal of the Supreme Court of New South Wales in State Rail Authority of New South Wales v Belgrove (1982) 2 NSWLR 738. The question there concerned the meaning and operation of the provisions of s 9(1)(a) of the Workers’ Compensation Act 1926 (NSW) that –
“… the compensation payable … shall include … the worker’s current weekly wage rate in respect of any period of incapacity which together with any such other periods … of incapacity resulting from the one injury do not total more than 26 weeks ….”
It was held that the test laid down by the statute for the operation of the opening words of s 9(1)(a) is that the aggregate of the periods of incapacity exceeds twenty-six weeks. The test is incapacity, and not liability to pay (or to be made to pay), compensation under the Act.
Mahoney JA (with the agreement of Reynolds JA) said (at 744):
“In my opinion, there is, for present purposes, a distinction between inability to do relevant work and actual economic loss and if the former be established, there is incapacity within s 9 and s 11 of the Act, even though there be no actual economic loss. The decision in Thompson [above] establishes this. In that case, the worker had been disabled from doing relevant work. While he was so disabled, the employer closed its plant, during the period from 20th December, 1947, to 1st January, 1948, and in accordance with the relevant industrial award, paid the worker two weeks wages at the weekly award rate and additional holiday pay for Christmas Day and Boxing Day. The question at issue was whether the worker, having received such payments, was entitled also to Workers’ Compensation in respect of the same period.
The employer’s submission was that he was not because, during the relevant period, he was not incapacitated. The submission was that, for there to be incapacity, it was not sufficient that the worker be disabled from doing the work for which he was earning wages. Under the worker’s contract of employment, he was during the holiday period, entitled to payment notwithstanding that he did not work. He received such payment and therefore, it was submitted, there was no incapacity.
That submission was rejected. At least four members of the court accepted that there is a distinction between incapacity, in the sense of disability to do relevant work, and economic loss of wages consequent upon that disability and it was accepted that incapacity, as used in s 9 and s 11, involved only the former and not the latter.”
Mahoney JA went on to say (at 745):
“In the Thompson case, the justices differed as to the significance of the payments received by the worker. It was, I think, seen to be the effect of McDermott v Owners of SS Tinteretto [1911] AC 35, that there may be, for this purpose, ‘a consequent economic loss of wages’ notwithstanding that the worker has, during his incapacity, received payments from the employer. For such payments to be relevant for the purpose of determining that there was such economic loss, they had to have, as such, the necessary relationship to the worker’s incapacity or they had to fall within a statutory provision such as s 13. McTiernan J, Fullagar J and Kitto J each held that the payments which the worker had received did not have that relationship; Latham CJ and Webb J held that they did. Williams J expressed no opinion on the question. It was accepted by the court that, in the particular case, s 13 had no application.”
(Section 13 provided that in fixing the amount of the weekly payment, regard shall be had to any payment, allowance, or benefit which the employee may receive from the employer during the period of incapacity.)
It is next submitted for the Minister that Pinetree Tours is liable to pay Mr Summerscales an amount not less than the amount Mr Summerscales would have earned from Pinetree Tours in the five day period following the accident, together with the amount Mr Summerscales would have earned from Norfolk Telecom in that same five days. This, it is said, is consistent with the reasoning of Latham CJ, and ensures that the employee is in the same financial position as he would have been, but for the accident.
The Minister argues that the Tribunal’s approach is to force an employee who is injured out of, or in the course of, employment, to rely upon accrued sick leave entitlements; and that this is contrary to the intention of the legislative scheme with respect to workers’ compensation. The Minister relies upon the following observations of Kitto J in Thompson (at 624):
“It was not contended on behalf of the appellant that, if the conclusion I have stated should be reached, s. 13 would apply, so that in fixing the weekly payment of compensation, regard should be had to the wages paid in respect of the annual leave; and in my opinion that contention, if it had been advanced, would have been conclusively answered by the cases of McDermott v. S.S. Tintoretto; Considine v. McInerney; and Watts v. Manchester Corporation. The wages were paid in discharge of a debt which had to be paid, incapacity or no incapacity; they were not in any sense paid in respect of the incapacity. They may be contrasted with sick pay, the distinction between the two being exactly the distinction which the cases have drawn between payments to which s. 13 applies and payments to which it does not apply. A compassionate payment made by an employer to an injured worker because of his incapacity would fall into the same category as sick pay; but I should think it inconsistent with the cases last cited to regard s. 13 as applying to all payments made in respect of the period of incapacity by an employer as such, irrespective of the existence or non-existence of any relation between the payments and the incapacity. I think also that judicial statements as to compensation being for economic loss (by which is meant the economic loss consisting of a loss of ability to earn wages by doing work), do not justify a construction of s. 13 which makes the actual loss of wages a condition of the right to be paid compensation.”
It is said for the Minister that sick pay for incapacity is not, unlike holiday pay, a debt. The incapacity is the reason for the sick pay; and where there is a work-related accident, the scheme of Part III is a comprehensive code on the subject and s 18 has no application. This, the Minister argues, is well illustrated by the example of an employee with no accrued sick leave entitlement, as in the case of an employee with two casual employers.
The Minister also points out the existence, and limiting (or “capping”) operation, in this connection, of the compulsory statutory insurance scheme established under s 39 of the Act. The relevant effect of these provisions is to expose an employer to liability in respect of no more than the period of five days specified in s 30(4)(a)(i) (see s 39(11)).
The Minister further points out that, in other jurisdictions, one employer may be liable to compensate for total loss. Reference is made to s 8(3) of the Safety Rehabilitation and Compensation Act 1988 (Cth) providing for the assessment of a part-time employee’s total loss of capacity to earn, including the capacity to earn income outside of the Commonwealth agency. Guse v Comcare No 92/369 AAT Decision 19 November 1993 is cited as an example of the application of s 25(3) of the Compensation (Commonwealth Government Employees) Act 1971. It provides that in the case of part-time Commonwealth employment, “any earnings of the employee from any other employment shall be treated for the purposes of this section as if they were earnings of the employee from his (or her) employment by the Commonwealth”.
It is further contended for the Minister that the reference in s 30(4)(a) to the liability for the compensation payment being “as if the period of incapacity were a period of absence from duty under section 18 by reason of ill health” is merely a point of reference intended to ensure that there can be no diminution in the employee’s rate by reason of the injury whilst the employee is totally incapacitated. That is, the submission runs, s 30(4)(a) does not, and cannot, derogate from the employee’s actual sick leave entitlements because this would have contradicted the objective of Part III which is to establish a scheme of a “no-fault” right to compensation.
On behalf of the Minister, Mr Dean Potter relied also upon some aspects of the legislative history. An exposure draft of the Bill which was to be later enacted as the Act was provided to the Norfolk Island Public Service Association for comment in 1985. By letter dated February 1985, the Association made the following comment upon cl 28(4)(a) (enacted as s 30(4)(a)):
“Paragraph 28(4)(a)
It is proposed that an employee utilise sick leave entitlements in respect of an absence for a work-related illness. It is traditional that sick leave entitlements provide a degree of security of income and employment in the event of non-work related sickness. The Association can see no reason why this principle cannot be observed in Norfolk Island.”A paper was prepared for the Legislative Assembly in 1987 responding to comments upon the draft, including the following observation:
“77. Paragraph 28(4)(a). The Association comments that it is proposed that an employee utilise sick leave entitlements in respect of an absence for work-related illness. This is not correct. Paragraph 28(4)(a) refers to sick pay only for the purpose of ascertaining the rate of payment – note the words ‘payment as if the period … were a period of absence … by reason of ill health’.”
THE SUBMISSIONS OF THE AMICUS CURIAE
At the request of the Court, in the absence of legal representation for Pinetree Tours, Mr Wayne Richards made written submissions as amicus curiae as follows.
·It is well settled that workers’ compensation legislation should be viewed as socially remedial legislation passed for the benefit of employees (see, e.g. Thompson, above, per Fullagar J at 616).
·By s 10C of the Interpretation Act 1979, it is provided that in statutory interpretation, a construction that would promote the purpose or object underlying the enactment (whether or not expressly stated) shall be preferred to a construction that would not so promote.
·The general principles of statutory interpretation were explained in Saraswati v The Queen (1991) 172 CLR 1 where McHugh J said (at 21 – 22):
“In many cases, the grammatical or literal meaning of a statutory provision will give effect to the purpose of the legislation. Consequently, it will constitute the ‘ordinary meaning’ to be applied. If, however, the literal or grammatical meaning of a provision does not give effect to that purpose, that meaning cannot be regarded as ‘the ordinary meaning’ and cannot prevail. It must give way to the construction which will promote the underlying purpose or object of an Act: Interpretation Act, s. 33 [the NSW counterpart of s 10C].
…
Moreover, once a court concludes that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole including the policy which may be discerned from its provisions, it is entitled to give effect to that purpose by addition to, omission from, or clarification of, the particular provision….
But where the text of a legislative provision is grammatically capable of only one meaning and neither the context nor any purpose of the Act throws any real doubt on that meaning, the grammatical meaning is ‘the ordinary meaning’ to be applied. A court cannot depart from ‘the ordinary meaning’ of a legislative provision simply because that meaning produces anomalies …. [However] if ‘the ordinary meaning’ of a legislative provision is manifestly absurd or unreasonable, a real doubt must arise as to whether Parliament intended the enactment to have its ordinary meaning ….”
·There is no extrinsic legislative material in the present context which throws light on the relevant legislative intent.
·Two basic but distinct issues arise:
(i)the determination of the existence of incapacity; and
(ii)the quantification of compensation.
·The notion of “total incapacity” is legislated for by the interaction of ss 30, 28, 27 and 26. Since it is not disputed that Mr Summerscales suffered “total incapacity”, it is not necessary, or helpful, to refer to the approach taken to this concept in the jurisprudence of other jurisdictions.
·The issue for resolution here is the quantification of Mr Summerscales’ entitlement to compensation in respect of the period of five working days following his incapacity. Section 30(4)(a) allows for the potential for confusion because it speaks of the payment of compensation “as if” it were sick pay payable under s 18, rather than specifying more directly the manner in which the compensation is to be quantified. The question which then arises is whether this is (a) merely drafting convenience, thereby carrying the risk that the draftsman has not said what was intended to be said; or (alternatively) (b) whether s 30(4)(a)(i) was deliberately structured in that way.
·It is common ground that Mr Summerscales, as a casual employee, was entitled to some compensation under s 30(4)(a)(i). It would logically follow that the parties should further accept each of the following propositions:
(a)The reference in s 30(4)(a)(i) to s 18 does not carry with it the consequence that a compensation payment made in accordance with the requirements of s 30(4)(a)(i) should be characterised as “sick pay”.
(b)Because such compensation payments are not sick pay, they do not otherwise affect an employee’s accrued sick pay entitlements under s 18.
(c)The entitlement to such compensation payments is not conditional or dependent upon the existence of any specific entitlement to sick pay. Otherwise casual employees, together with Administration officers and employees, and employees who had fully utilised their sick leave entitlement would be ineligible for compensation.
·The essential issue here is reflected in the competing statutory interpretations, which are –
(a)(As determined by the Tribunal), the employee’s entitlement to compensation for total incapacity is limited to an amount equivalent to what he would have got from the casual employer had he been entitled to sick leave; and
(b)(As argued by the Minister), the employee is entitled to receive from the casual employer an amount equivalent to what he might have got in the way of sick leave from the immediate and other employers.
·As the Tribunal noted, the Act does not appear to address the situation which arises where there are multiple employers.
·Yet the argument remains that sick leave payments under s 18 are quantifiable only in respect of earnings that might have been earned from the immediate employer. Accordingly, s 30(4)(a)(i) merely incorporates this within, and for the purposes of, the initial workers’ compensation payment; and additional compensation in respect of lost earnings from other employment is, essentially, irrelevant, as something to be determined by reference to whatever entitlements the employee might have in respect of that other employment. On this construction, the employee gets something, although not everything.
·The Minister’s argument places much reliance upon the principle of beneficial interpretation in this field. However, the language of s 18(1) must be borne in mind:
“… where an employee is absent from duty by reason of ill health, the employer shall pay the employee for each period of absence at not less than the rate at which the employee would have been paid if the employee had not been absent by reason of ill health.”
Thus the relevant rate of pay for absence from duty seems clearly quantified by reference to the applicable rate when present for duty with the employer. Moreover, if compensation were to be payable in the circumstances postulated in the Minister’s argument, an issue would arise as to whether “non-compensating” employers were liable, on request, to pay any applicable sick leave entitlements to the incapacitated employee. On this scenario, the employee gets everything, perhaps more.
·On balance, the Tribunal’s approach appears to be more consistent with the overall statutory scheme. The object of providing compensation for work-related accidents cannot be pushed into the realms of artificiality. The legislation is intended to be, generally speaking, beneficially interpreted, but not particularly so. That is, Part III provides for no-fault compensation, but not full indemnification. As noted, beyond the five day period, the prescribed amount is now $1,012.20, or the lesser amount under s 30(4)(b)(ii). Moreover, there is a maximum period of two years (s 30(8)).
·The Tribunal also purported to determine that the Administration was liable to pay Mr Summerscales sick pay under s 18. But, in truth, the operation of s 30 of the Public Service Act was not an actual issue for the Tribunal, or for the Court, to adjudicate.
CONCLUSIONS ON THE APPEAL
As a point of statutory construction and as essentially a matter of impression, the respective arguments are, I think, finely balanced. Since the Act does not, in terms, address the possibility of more than one employer, including a casual employer, the Court must search for the presumed intention of the Legislature from the whole of the terms of the statute and from their general context. When that is done, one discerns a legislative intent, in establishing a no-fault compensation scheme in the workplace, to strike a fair balance between the respective legitimate interests of employers on the one hand and employees on the other. As Mason and Wilson JJ said in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321:
“If the choice is between two strongly competing interpretations …. the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention.”
I have concluded, for the reasons there given, that the advantage lies with Mr Richard’s submission. Thereby, the casual employee gets something, but not everything, and a fair balance is struck. In this way an artificial, disproportionate and potentially anomalous outcome is avoided, an outcome which may be presumed to accord with the legislative intent.
Moreover, there is nothing unorthodox in such an approach. The result is to achieve a just outcome by giving to Part III a “distributive” construction which reflects the nexus between the casual employee and his casual employment (cf. Bishop v Deakin [1936] 1 Ch 409 at 414; Chelfco Ninety-Four Pty Ltd v Road Traffic Authority (1985) VR 1 at 11; Bennion, “Statutory Interpretation”, 3rd Ed. (1997) at 967 – 968).
Accordingly, I propose to order that the appeal be dismissed in this respect.
There remains the question of sick leave. As noted, the Tribunal did appear to express a view about Mr Summerscales’ sick leave entitlement. However, when those observations are seen in context, they appear to be made informally, and were not reduced to any formal determination. Nor could they be. In these circumstances, it is not necessary to take this aspect any further here, as the question was not, in truth, before the Tribunal as an issue for its determination. It must follow that the Tribunal’s observations should be treated as made in passing only, and thus not binding or determinative of that question. It follows that it is unnecessary to set aside that aspect of the Tribunal’s reasons.
ORDER
The Court orders that the appeal be dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Beaumont. Associate:
Dated: 8 November 2000
Counsel for the Appellant: Mr Dean Potter, Administration of Norfolk Island Amicus Curiae: Mr Wayne Richards, Solicitor Solicitor for the First Respondent: The requirement of service for the first respondent was dispensed with Second Respondent: The second respondent appeared in person and was excused at his request Date of hearing: 21 June 2000 Date of receipt of written submissions by Amicus Curiae: 6 September 2000 Date of Judgment: 8 November 2000
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