Mitchell v NSW Department of Community Services

Case •

[2004] NSWWCCPD 2

•

14 January, 2004

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________

CITATION: Jennifer Mitchell v NSW Department of Community Services [2004] NSW WCC PD 2
APPELLANT: Jennifer Mitchell
RESPONDENT: NSW Department of Community Services
INSURER: GIO Workers Compensation
FILE NO: WCC 4388-2002
DATE OF ARBITRATOR’S DECISION: 18 March, 2003
DATE OF APPEAL DECISION:  14 January, 2004
SUBJECT MATTER OF DECISION: Application for Leave to appeal against a decision of an Arbitrator, dismissing the Appellant’s claim for additional weekly compensation.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING: Determined on the papers
REPRESENTATION: Appellant: Robb & Associates, Albury
Respondent: Hunt & Hunt Lawyers, Canberra
ORDERS MADE ON APPEAL:

Leave to appeal granted.  Appeal allowed.  The decision of the Arbitrator dismissing the claim for additional weekly payments from 4th December, 2001 to 3rd May, 2002 is revoked and the following decision is made in lieu thereof:

The Respondent is ordered to pay to the Appellant, weekly payments of compensation, for the period 4 December, 2001 to 3 May, 2002, calculated in accordance with her applicable current weekly wage rate, pursuant to section 42(1) of the 1987 Act, based upon rostered hours specified by the Respondent, and worked by the Appellant, up to 38 hours per week.

The Respondent is ordered to pay the Appellants costs of the appeal, as agreed or assessed.

THE APPEAL

  1. On 11 April, 2003, Jennifer Mitchell, (‘the Appellant’), lodged an ‘Application to Appeal Against a Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 18 March, 2003.   The Respondent to the appeal is the NSW Department of Community Services (‘the Respondent’), and the Insurer is GIO Workers Compensation (‘the Insurer’).

  2. The Appellant had claimed that she suffered a total incapacity for work and subsequently a partial incapacity due to an injury arising out of and in the course of her employment with the Respondent, as a residential support worker.

THE DECISION UNDER REVIEW

  1. The Certificate of Determination issued by the Commission on 18 March, 2003 sets out the decision of the Arbitrator as follows:

    1.By consent the Respondent pay the Applicant weekly compensation at the rate of $300.00 from 4th May 2002 to 31st October 2002 under s40 of the Workers Compensation Act 1987.

    2.The Applicant’s claim for additional weekly compensation from 4th December 2001 to 3rd May 2002 is dismissed.

    3.The Respondent pay the Applicant’s costs of the proceedings up to and including the teleconference held on 21st February 2003 the same to be as agreed or assessed.

  2. The Appellant has appealed the decision of the Arbitrator dismissing the claim for additional weekly compensation from 4 December, 2001 to 3 May, 2002.  The Respondent submits that the decision of the Arbitrator should stand.

THE ISSUE IN DISPUTE

  1. The issue in dispute in this appeal is whether the Arbitrator erred in dismissing the Appellant’s claim for additional weekly compensation from 4 December, 2001 to 3 May, 2002, the period during which she was totally incapacitated for work as a result of her injury. The Appellant has been paid weekly payments by the Respondent, at the rate of $299.11 per week for this period. The issue involves the determination of (a) the basis for and the correct rate of, weekly payments during this period; (b) the precise nature of the Appellant’s hours of work beyond her contracted 17 hours, and (c) whether section 42(4) of the Workers Compensation Act 1987 (‘the 1987 Act’) is applicable.

JURISDICTION TO HEAR THE APPEAL

  1. Before proceeding to hear the 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’), as follows:

    352Appeal against decision of Commission constituted by Arbitrator

    (1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.

    (2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:

    (a)    at least $5,000 (or such other amount as may be prescribed by the regulations), and

    (b)    at least 20% of the amount awarded in the decision appealed against.

    (3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.

    (4)An appeal can only be made within 28 days after the making of the decision appealed against.

    (5)An appeal under this section is to be by way of review of the decision appealed against.

    (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.

    (7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.

    (8)In this section, decision includes an award, interim award, order, determination, ruling and direction.

  2. There is no dispute that the threshold tests in section 352(2)(a) and (b) of the 1998 Act are satisfied.

  1. The Arbitrator’s decision was made on 18 March, 2003 and the Certificate of Determination was issued on the same date. The appeal was lodged within 28 days of that decision, that is, on 11 April, 2003, in compliance with section 352(4) of the 1998 Act.

  2. Leave to appeal is granted.

ON THE PAPERS REVIEW

  1. Section 354(6) of the 1998 Act provides:

    354    Procedure before Commission

    (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.

    Initially, the Appellant was opposed to the appeal being determined “on the papers”.  However, by letter of 22 August, 2003 from Hunt and Hunt, Solicitors for the Respondent, enclosing final submissions, it was indicated that the parties had agreed that the appeal could be dealt with “on the papers”.  Having regard to President’s Practice Directions numbers 1 and 6 issued on 1 July, 2003, the comprehensive submissions that have been made by both parties, the documents that are before me, and the agreement by both parties that the appeal can proceed to be determined “on the papers”, I am satisfied that I have sufficient information to do so without holding any conference or formal hearing, and that this is the appropriate course in the circumstances of this matter.

EVIDENCE AND SUBMISSIONS

  1. Briefly, the Appellant worked as a residential care assistant for the Department of Community Services, and was employed on a permanent, part-time basis of 17 hours per week.  On 4 December, 2001 she received a psychological injury that arose out of and in the course of her employment, and was totally incapacitated for work as a result, until 3 May, 2002.  The Appellant was paid weekly compensation for this period at the rate of $299.11 per week.  She returned to work with restricted duties on 4 May, 2002 and continued to work until 31 October, 2002.  On 20 November, 2002 she lodged an application to resolve a dispute, with the Commission.  At the teleconference on 21 February, 2003 agreement was reached between the parties that the Respondent would pay the Appellant, for the period from 4 May, 2002 to 31 October, 2002, weekly payments at the rate of $300 per week, for partial incapacity.  The Appellant claimed that she was rostered for work for [on average] 38 hours per week for about 12 months prior to the date of injury on 4 December, 2001, and her rate of payment for the period of total incapacity between 4 December, 2001 and 3 May, 2002 should be calculated according to the weekly rate based on this arrangement.  (I note that the wage records show different hours, not strictly 38 hours per week).  She claimed that on this basis, she was entitled to the additional weekly payment.  However, the Arbitrator dismissed her claim for additional weekly payments for the period between 4 December, 2001 and 3 May, 2002.

  2. The evidence and submissions that were before the Commission constituted by the Arbitrator are set out in his Statement of Reasons for Decision, dated 18 March, 2003, and are before me in this appeal.  

Application by each party to produce new evidence

  1. The Appellant made the application to introduce into evidence the Crown Employees (New South Wales Department of Ageing, Disability and Home Care) Community Living and Residential (State) Award, Part B Section 4 – Hours, Part B Section 5 – Roster of Hours, and Part B Section 7 – Overtime (‘the Award’).  In support of this application the Appellant noted that both the Respondent and the Appellant contended and agreed that the Appellant was employed under the Award.  It is submitted by the Appellant:

    “that the provisions of the Award in relation to its definitions with respect to hours worked and overtime are relevant for the purpose of examining the submissions made by the respondent, and the finding of the arbitrator, that hours worked by the appellant in excess of 17 hours per week should not be classified as overtime…It is submitted by the appellant that an examination of these sections of the Award is extremely relevant in determining whether the hours worked in excess of 17 hours can be classified as overtime as contended by the respondent and as found by the arbitrator.”

  2. In submissions of 17 April, 2003 the Respondent confirmed that this is the industrial award under which the Appellant was employed.  The Respondent does not oppose the tendering of this Award provided that the entire Award is tendered, and not just selected extracts as included in the Appellant’s submissions. 

  3. In her further submissions of 19 June, 2003 the Appellant repeated and expanded upon the application.  The relevant, additional part of the submissions is as follows:

    “(b) The award, while referred to in the material which was placed before the arbitrator by the respondent as being the award pursuant to which the appellant was being paid at the time of her injury, was not tendered in the proceedings before the arbitrator.  The appellant did not consider it appropriate to tender the award for the purpose of the hearing before the arbitrator.  It is submitted that the following findings made by the arbitrator at paragraph 31 of his award are significant:

    (i)Overtime work is generally taken to be work carried out in excess of a specified period of time and in respect of which some different and higher rate of remuneration is paid.

    (ii)Rate of remuneration is not an essential characteristic of overtime.

    (iii)Overtime is primarily time worked over and above a specified period and any differential or [sic] remuneration would flow from that fact.

    (iv)It is agreed between the parties that the applicant (appellant) would work 17 hours per week and so any more time worked in a week was overtime.

    (v)It is merely a feature of the governing award that no different rate of remuneration was payable until more than 38 hours were worked in a week.

    It is submitted that for the arbitrator to draw the conclusions referred to above without reference to the award pursuant to which the appellant was employed by the respondent may have caused the arbitrator to fall into error.  The significance of the award did not become apparent to the appellant until after a perusal of the arbitrator’s reasons.
    It is submitted that the award sets out appropriately the employment relationship between the appellant and the respondent and specifically defines different types of hours worked.
    It is submitted that the failure to admit the new evidence would cause a substantial injustice in the circumstances of this case.”

  4. Section 352(6) of the 1998 Act provides that fresh evidence or evidence in addition to or in substitution for the evidence received by the Arbitrator, may not be given on an appeal to the Commission except with the leave of the Commission. In addition, President’s Practice Direction Number 6 provides:

    “In general, the Commission will allow new evidence to be given only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case”.

  5. Admission of new or fresh evidence in an appeal has been considered by the Commission in a number of appeals; (cf. Raisebore Pty Limited v Brendyn Wilson [2003] NSW WCC PD 40; Christopher Michael McMahon v Anthony Lagana and Joseph Lavella t/as the Vessel “Nimble ll” [2003] NSW WCC PD 22; M & S Shipman Pty Ltd v Larry John Matters [2003] NSW WCC PD 19, and Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7). Factors that weigh in favour of and against the exercise of a discretion to admit new or fresh evidence, are set out in those decisions.

  6. In the instant case the Award was referred to and relied upon to an extent by both parties in the proceedings before the Arbitrator, although it was not formally tendered and available, in a physical sense.  It would make no sense now, to reject the application to formalise in this appeal what could be said to have been, relevantly and substantially, albeit informally, the case in the arbitral proceedings.  Moreover, the Respondent has not objected to the application to admit the Award as long as it is admitted into evidence in its entirety and not “just selected extracts”. In the particular circumstances of this matter, it is possible that a proper consideration of the contents of the Award could make a difference to the outcome, and on balance, a substantial injustice could occur if the Award is not formally admitted into evidence, having regard to the reliance placed upon it by both parties, and some of the conclusions drawn by the Arbitrator, in the arbitral proceedings. The Respondent’s view, in consenting to the application, that the whole Award should be admitted into evidence, is reasonable. Finally, I note that pursuant to section 354 (2) of the 1998 Act, the Commission may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter permits. As the Award has been relied upon already, by both parties, I consider that it is appropriate and necessary for a proper consideration of the matter, to have the Award in evidence in this appeal. In all of the circumstances, the application for leave to admit the Award into evidence in this appeal, pursuant to section 352 (6) of the 1998 Act, is granted.

  7. The Respondent seeks to rely on three pages of the Appellant’s wage records, which were tendered with the response to the appeal against the decision of the Arbitrator.  The Appellant does not oppose the admission of the documents but submits that the calculations drawn by the Respondent from that documentation cannot be supported by reference to the documents.  In the Respondent’s letter of 17 June, 2003, it said, inter alia: “We confirm that the wage records referred to in the Respondent’s submissions were attached to our letter to the Commission dated 17 April, 2003.  We enclose a copy of these wage records with this letter.  We mistakenly believed that the Appellant’s wage records were also contained in the Respondent’s original Reply to Application for Dispute Resolution.  We now enclose the Respondent’s Submissions regarding the admission of new evidence.  We have served these further submissions on the Applicant and enclose a further Form 4, Certificate of Service of a Document by a Party.”  The application to admit the new evidence is made on the following grounds:

    ·Page 1 was contained in the Respondent’s original Reply to Application for Dispute Resolution and was therefore, in evidence before the Arbitrator.  The document contains calculations to assist in the calculation of the sum of penalties paid to the Appellant in the twelve months prior to the date of injury.  The calculations are additional information and were provided to assist the parties and the Arbitrator in the determination of the matter.

    ·Documents 2 and 3 were not contained in the Respondent’s Reply to the Application for Dispute Resolution, as a result of an oversight.  The Respondent seeks to include these documents in order to clarify the calculations contained on page 1.  The Respondent submits that these documents should be admitted for the purposes of further assisting the parties and the Commission in calculating the sums paid to the Appellant by way of penalty rates.  The substance of these documents was referred to in the Respondent’s Reply to Application for Dispute Resolution and in any event, the information should have been known to the Appellant or available to the Appellant, by way of pay slips, etc.

  8. Page 1 was part of the evidence before the Arbitrator and is therefore, already in evidence before me in this appeal. I agree with the Respondent that pages 2 and 3 may serve to clarify the contents of page 1, but more importantly, they are essentially, part of the basis of the submissions that were made to the Arbitrator, by both parties. Although the Arbitrator did not physically sight these specific documents they comprise part of and are integral to, the wage records of the Appellant, for the purposes of the decision that the Arbitrator needed to make, and did make. The contents of the wage records were discussed in the proceedings. As with the Award, it does not make sense to exclude these documents at this point, simply because they were not physically on the table at the arbitral hearing. In the circumstances, and there being no objection by the Appellant, leave is granted pursuant to section 352 (6) of the 1998 Act, to admit into evidence, pages 2 and 3, being wage records of the Appellant.

For the Applicant – Submissions of 10 April, 2003.

  1. The Appellant submits that the following matters are not in dispute between the parties:

    ·The Appellant sustained a work-related injury during the course of her employment with the Respondent, and liability was admitted in December, 2001.

    ·The Appellant was totally incapacitated for work from 4 December, 2001 to 3 May, 2002, as a consequence of her injury.

    ·As at 3 December, 2001 the Applicant was employed on a permanent part-time basis working 17 hours per week, but for a period of at least 12 months prior to 4 December, 2001, she had been working generally in excess of 17 hours per week, and usually 38 hours per week.

    ·The Appellant was paid the sum of $299 per week pursuant to section 36 [of the 1987 Act] for the period 4 December, 2001 to 3 May, 2002.

    ·The Appellant was employed pursuant to the Crown Employees (New South Wales Department of Ageing, Disability and Home Care) Community Living and Residential (State) Award.

    ·As at 4 December, 2001 the Award fixed a weekly rate of $649.14 per week for 38 hours and from 4 January, 2002 the rate was $668.60 per week.  These respective rates are the Appellant’s current weekly wage rate pursuant to the provisions of section 42(1) of the 1987 Act.

    ·For the 12 month period prior to 4 December, 2001, the Appellant earned $39,614.25, being an average weekly income of $761.81.

    ·For hours worked in excess of 17 hours per week and up to 38 hours per week, the Appellant was paid her normal rate of pay plus 12% loading to compensate for annual leave that “did not accrue on these hours”.

    ·The Appellant was paid overtime rates and penalty allowances and shift allowances with respect to hours worked in excess of 38 hours per week and on Saturdays, Sundays or public holidays and after 4 pm during the night.

  1. The Appellant submits that the parties disagreed in relation to the Appellant’s current weekly wage rate as defined by section 42 of the 1987 Act as at 4 December, 2001 and as a consequence, the Appellant’s rate of compensation payment for the period 4 December, 2001 to 3 May, 2002.  The Appellant further submits that it was the Respondent’s argument that the only hours to be taken into account for the purpose of calculating the Appellant’s weekly wage rate were her permanent 17 hours per week and any hours worked in excess of that were to be classified as overtime and, as a consequence, were excluded from the calculation by reason of the operation of section 42(6) of the 1987 Act.  The Appellant contends that prima facie, she was entitled to be paid the Award rate for a week’s work for the period that she was absent from work. The Award rate was agreed between the parties. The Appellant contends that section 42(4) of the 1987 Act would have been applicable in the event of the Appellant’s Award rate of pay exceeding her average weekly earnings, but her average weekly earnings in fact exceeded the Award rate, and as a consequence, section 42(4) of the 1987 Act was not applicable.

  2. The Appellant submits that the Arbitrator erred in relation to the following findings:

    ·The Appellant’s current weekly wage rate as calculated pursuant to the provisions of section 42(4) of the 1987 Act was $522.70 per week.

    ·The hours worked by the Appellant in excess of 17 hours per week were overtime.

    ·The hours worked in excess of 17 hours per week by the Appellant were to be excluded for the purpose of calculation of the Appellant’s current weekly wage rate pursuant to the provisions of section 42(4) of the 1987 Act.

  3. The Appellant’s submissions in support of her appeal may be summarised as follows:

    ·The appropriate rate of compensation for the period of total incapacity, pursuant to section 42(1) of the 1987 Act, is $649.14 for the period 4 December, 2001 to 3 January, 2002 (the first period), and $668.60 for the period 4 January, 2002 to 3 May, 2002 (the second period), being the weekly wage pursuant to the Award.

    ·There is no evidence upon which the Arbitrator could conclude that the average weekly earnings for the 12 month period prior to 4 December, 2001 were $522.70 per week.  This figure was provided by the Respondent.  However, it is not capable of calculation from documentation provided by either party.  The Appellant does agree with the Respondent that for the 12 month period prior to December, 2001 the Appellant earned on average $761.81 per week.  It is conceded that part of this income may have included overtime and/or penalty rates.  Nevertheless, it is submitted that as at 4 December, 2001 the Appellant was working additional hours to her 17 hours up to the equivalent of full-time hours.  The Respondent supports this point and reference is made to the letter dated 3 December, 2002 from Diana Dalley to Justine Summons, Hunt & Hunt Solicitors, attached to the Respondent’s Reply.

    ·A calculation undertaken pursuant to the provisions of section 42(4) of the 1987 Act would result in the Appellant’s average weekly earnings in fact exceeding the current wage rate for the purpose of section 42(1) of that Act and as a consequence, the provisions of section 42(4) of that Act are not applicable.

    ·Section 42(6) of the 1987 Act does not impact upon the additional hours worked by the Appellant above her 17 hours up to and including 38 hours per week and does not relate to the 12% loading paid with respect to the hours worked above the hours up to and including 38 hours per week.  Subsection (6)(a) clearly contemplates penalty payments above and beyond a worker’s normal base rate of pay.  The Arbitrator’s determination that the rate of remuneration is not an essential characteristic of overtime has no application to a proper interpretation of section 42(6)(a) of the 1987 Act.

    ·Referring to the Award, the Appellant relies on Part B Section 4.  The section defines hours which are to be worked including ordinary hours of work.  Clause 4(i) stipulates that ordinary hours of work for day workers, exclusive of meal times, shall be “152 hours per 28 – calendar month – 38 hours per week.”  Part B Section 5 – Roster of Hours: 5(i) stipulates that the ordinary hours of work for each officer shall be displayed on a roster in a place conveniently accessible to officers.  Where reasonably practical such roster shall be displayed for two weeks but in any case at least one week prior to the commencing date of the first working period of any roster.  It is submitted that the Appellant’s fortnightly roster was provided to her and displayed at the beginning of each fortnight and stipulated the ordinary hours of work for her during each fortnight.  It is conceded by the Respondent that, as at the date of injury, the Appellant was being rostered to work the equivalent of full-time hours.  The Commission’s attention is invited again to the letter dated 3 December, 2001,  referred to above.  Part B Section 7 – Overtime: 7(i) stipulates that all hours worked by officers outside the ordinary hours in accordance with clauses 4 and 5 of the Award shall be paid at the rate of time and a half for the first two hours and double time for subsequent hours worked.  Additional provisions relate to Sundays and Public Holidays.  As a consequence of the operation of these provisions the Appellant’s ordinary hours of work were determined not in reference to the basis upon which she was employed, being 17 hours permanent part-time, but the basis upon which she was rostered to work each fortnight.  As at 4 December, 2001, as stipulated in the letter of 3 December, 2001 referred to above, the Appellant was working, prior to her injury, additional hours to the equivalent of full-time hours.  While the Respondent may regard these additional hours over 17 hours as being overtime, in fact the Award very clearly stipulates that only hours worked outside the ordinary hours as defined by clause  4 of the Award can be classified as overtime.

    ·In the alternative, if the Respondent’s submission is accepted that the Appellant’s average weekly earnings excluding overtime as at 4 December, 2001 for the 12 month period prior to that date were $522.70 per week, then she is entitled to be paid this sum pursuant to the provisions of section 36 of the 1987 Act for the period 4 December, 2001 to 3 May, 2002.  However, as earlier submitted, this calculation cannot be supported on the basis of the material filed.  Moreover, the calculation excludes the 12% loading for those hours worked above 17 hours but below 39 [sic] per week.  This loading is provided to offset the fact that the additional hours did not attract holidays and was not paid by way of penalty for additional hours worked (but by way of compensation for a benefit which did not accrue but which would have accrued, normally).  If the Respondent’s calculation is accepted, a further calculation should be undertaken which adds to the sum of $522.70 the loading of 12% referred to.  An additional sum of about $26 per week should be added to the sum of $522.70 per week to compensate for the 12% loading.

    ·It is the intention of section 42(4) of the 1987 Act, to ensure that part-time workers who are working less than a full-time workload, do not receive weekly payments of compensation in excess of their average weekly earnings as defined by section 42(4), which would otherwise flow to them by virtue of the operation of section 42(1) of that Act.

    ·“It is submitted the intention of the legislation is not to penalise a person such as the appellant who, while being employed on a permanent part-time basis, was, at the time of the accident, working the equivalent of a full-time week (38 hours) and was being paid for the additional hours worked up to the 38 hours per week at the same rate (taking into account that the 12% loading is in fact compensation for a benefit not received being holidays) as for the initial 17 hours worked.”   

For the Respondent – Submissions of 17 April, 2003

  1. The Respondent does not dispute the facts outlined by the Appellant as background to the Application, nor the outline of the nature of the claim.  The Respondent does not dispute the facts outlined by the Appellant as not being in dispute between the parties.  However:  “The Respondent does not dispute that as at 4 December 2001 the Award rate fixed a weekly rate of $649.14 per week for 38 hours or a [sic] $17.825 per hour and from 4 January 2002 the rate was $668.60 per week or $17.5949 per hour.“  The Respondent does dispute the rest of this part of the submission, consisting of the following:  “These respective rates are the appellant’s current weekly wage rate pursuant to the provisions of section 42(1) of the Act.  (See respondent’s submissions page 4 at point 2.)”   The Respondent does not dispute the facts outlined by the Appellant as being in dispute between the parties.  The Respondent does not dispute the findings of the Arbitrator as outlined by the Appellant, but does dispute the Appellant’s submissions that the Arbitrator erred in relation to the findings, the subject of this appeal.

  2. The Respondent does not dispute that the Appellant was working additional hours over and above the 17 hours per week that she was contracted to work.

  3. The Respondent agrees with the Appellant that the provisions of section 42(4) of the 1987 Act are not applicable to the issues in this matter. The Respondent further submits that section 42(1)(a), (1)(b) and (4) of that Act are subject to the operation of section 42(6). The Respondent disputes the submissions put by the Appellant with regard to section 42(6) and submits that it is the relevant section to be taken into account in the determination of the worker’s current weekly wage rate. “The Respondent submits that when calculating the Appellant’s current weekly wage rates the Respondent is only to have regard to the 17 hours per week the Appellant was contracted to work, rather than the additional hours and overtime paid to the Appellant.”

  4. The Respondent submits that the Award does not provide an exhaustive definition of overtime.  Overtime can be defined as hours worked in excess of the ordinary hours a worker is contracted to work.  The rate of the Appellant’s remuneration is not an essential characteristic of overtime.  “The Respondent further submits that the Appellant was paid an additional 12% on all hours she worked in excess of 17 hours per week by way of compensating her for the fact these hours (sic) worked in excess of those determined by the terms of her employment.  The respondent submits that the fact that this loading was in respect of annual leave does not alter the fact that it was paid for loading or a penalty rate.”

  5. Notwithstanding the Appellant’s submissions regarding the Respondent’s calculations, the Respondent submits that the submissions and calculations were intended to show that the Appellant was paid penalty rates for extra hours and overtime.  “The Respondent still submits that the Appellant is only entitled to receive compensation for the 17 hours per week she was contracted to work at the base rates of $17.0825 and $17.5949 per hour for the relevant periods.  The difference between $522.70 per week and the base rates of $290.36 and $290.12 per week reflects the fact that the Appellant was paid a minimum of $17.5949 per hour as a minimum rate to the hours worked in excess of 17 hours per week.”

  6. The Respondent submits that the intention of section 42 of the 1987 Act is to ensure that a worker receives the award rate for any periods during which they are totally incapacitated for work.

  7. The Appellant’s current weekly wage rate as at 4 December, 2001 was $290.36, pursuant to section 42 of the 1987 Act.  The Appellant’s current weekly wage rate as at 4 January, 2002 was $299.12 per week.  Accordingly, the Appellant was entitled to weekly payments of compensation of $290.36  from 4 December, 2001 to 3 January, 2002 and $299.12 from 4 January, 2002 to 3 May, 2002.

  8. Under Section 42(1) of the 1987 Act, the Appellant’s current weekly wage rate is the rate fixed by the Award.  As at 4 December, 2001 the terms of that Award fixed a weekly rate of $649.14 per week for 38 hours per week or $17.0825 per hour.  On 4 January, 2002 this increased to a weekly rate of $668.60 per week or $17.5949 per hour.  The hours worked in excess of 17 hours that she was contracted to work were overtime and are to be disregarded, pursuant to section 42(6) when calculating the current weekly wage rate.

  9. It is not a term of the Award that the Appellant should receive an extra sum for any hours worked over and above the normal hours, with the exception of the additional 12%, in lieu of annual leave entitlement.  However, the Award confirms that the Appellant and all workers are to be paid overtime for shifts that are worked in succession without an eight hour break, and also provides penalty rates for hours worked on a Saturday, Sunday or public holiday, and penalty rates for hours worked after 4 pm and during the night

  10. The Appellant’s wage records show that in the year ending 30 June, 2001 the Appellant earned $40,310.88 gross of which $16,793.60 was in respect of overtime and penalty rates and $23,517.28 was in respect of a base 17 hours worked and additional hours over and above those 17 hours, paid at the base rate.  This equates to an average of $452.25 per week paid at the base Award rate.  This is an average of $322.95 per week for penalties and overtime.  The wage records also show that in the twelve months prior to 4 December, 2001 the Appellant earned  $39,614.24 per annum gross, of which $12,433.62 was in respect of overtime and penalty rates and $27,180.63 was in respect of a base 17 hours worked and additional hours over and above those 17 hours, paid at the base rate.  This is an average of $239.10 per week for penalties and overtime.

  11. The Respondent further submits that both parties agree that the Appellant’s average weekly earnings as determined by section 43 of the 1987 Act were $761.81 per week.  This was an average of all shifts worked by the Appellant in the 12 months prior to 4 December, 2001.  It is submitted that this sum includes amounts paid to the Appellant for overtime and penalty rates.  Based on the Appellant’s wage records, the Respondent submits that this sum does not reflect the fact that the Appellant worked 38 hours per week at $17.0825 per hour.  The Respondent submits that the average weekly earnings of $646.00 per week would include amounts paid to the Appellant at penalty rates of 12.5%, 15% and 40% of the base rate in respect of afternoon, evening, night and Saturday shifts, respectively.  In calculating the Appellant’s current weekly wage rates, the Respondent reaffirms that it is “only to have regard to the 17 hours per week the Appellant was contracted to work rather than the additional hours and overtime paid to the Appellant.”

Further submissions by Appellant – 10 June, 2003

  1. The further submissions by the Appellant related principally to the application to produce new evidence, which has been dealt with above.

Further submissions by Respondent – 22 August, 2003

  1. The further submissions by the Respondent substantially repeated and summarised the earlier submissions.  The further submissions have been noted and do not need to be reproduced.

DISCUSSION AND FINDINGS

  1. The Award provides that the “ordinary hours of work”, exclusive of meal times, for both day workers and shift workers, shall be 152 hours per 28 calendar days, that is 38 hours per week: Part B, Clause 4(i) and (ii).  It is not in dispute that this provision applied to the Appellant, who was employed under this Award.   

  2. The Appellant was employed to work 17 hours per week, that is on a permanent, part-time basis.  Part B, Clause 4(xv) provides, inter alia, that the “ordinary hours of work” for a permanent part-time officer will be a specified number of hours which are less than those prescribed for a full-time officer as set out in subclauses (ii) and (iv), with a minimum of three consecutive hours.

  3. The “ordinary hours of work” for each officer are required, by Part B, Clause 5(i) to be displayed on a roster in a place conveniently accessible to officers.

    Part B, Clause 6(B)(ii), provides, inter alia, as follows:

    “Permanent part-time officers are entitled to payment of overtime in accordance with the provisions of clause 7, Overtime.”

  4. Part B, Clause 7 – Overtime, subclause (i) provides as follows:

    “All time worked by officers outside the ordinary hours in accordance with clause 4, Hours, and clause 5, Roster of Hours, shall be paid for at the rate of time and a half for the first two hours and double time for subsequent hours worked; provided, however, that all overtime worked on Sundays shall be paid for at the rate of double time and public holidays shall be paid at the rate of double time and one half.”

  5. Subclause (viii) of Clause 7 provides as follows:  

    (a)  All time worked by permanent part-time officers in excess of the rostered daily ordinary hours of work prescribed for the majority of full-time officers employed on that shift in the unit concerned, or, where there is no such majority of full-time officers employed on that shift in the CRC or CSS concerned, all times in excess of eight hours per day, shall be paid for at the applicable overtime rates.

    (b)  Time worked up to the rostered daily ordinary hours of work prescribed for a majority of the full-time officers employed on that shift in the unit concerned shall not be regarded as overtime but an extension of the contract hours for that day and shall be paid at the ordinary rate of pay

    (c)  All time worked by permanent part-time officers in excess of the hours prescribed for a full-time officer in clause 4, Hours, shall be paid for at overtime rates.

  6. It is agreed between the parties that the Appellant was employed by the Respondent to work 17 hours per week.  However, the Appellant was required by the Respondent to work a varied but specified number of hours in accordance with a fortnightly roster that was published and displayed by the Respondent.   All hours worked outside of the “ordinary hours of work” of the Appellant, attracted payment of overtime at the appropriate rate.  Clause 7 precludes any time worked within the rostered “ordinary hours of work”, being paid for as overtime, and subclause (viii) (c) of clause 7, makes it clear that only time worked by a part-time officer in excess of the hours prescribed for a full-time officer in clause 4, shall be paid for at overtime rates.  According to the evidence the Appellant was not paid overtime nor other penalty rates, save for leave loading in lieu of leave that would normally accrue, for any work done up to 38 hours per week (except where shift work, weekend work etc., may have been involved).  Notwithstanding that she was employed to work 17 hours per week, the fact is that for a period of at least twelve months prior to the date of her injury, her “ordinary hours of work”, as specified and published by the Respondent, in the fortnightly roster, were not 17 hours per week, but were in excess of those hours.  Although the photocopies of the wage records that were tendered in evidence are not particularly clear, it is evident that the Respondent could not treat hours worked in excess of 17 and up to 38 hours per week, as being other than the ordinary, rostered working hours of the Appellant, and payment was made accordingly.  Payment for overtime was not, and could not be paid, for hours worked in excess of 17 and up to 38 hours per week, having regard to the terms of the Award.  Notwithstanding the submissions made by the Respondent, I can find no evidence that the hours worked by the Appellant, up to 38 hours per week, were other than specified, ordinary hours worked, in accordance with the relevant provisions of the Award.  The Respondent maintains that the Award does not provide an exhaustive definition of overtime.  However, the relevant provisions of the Award are substantial enough for the purposes of this matter.  It seems that some overtime (perhaps in addition to other penalty rates including shift work rates) was paid throughout that period of twelve months, but this applied to hours worked, that were in excess of 38 hours per week, as specifically provided by the Award.  It is unfortunate that the Arbitrator did not have the benefit of perusing the Award. It is clear that his comments and general observations regarding the nature of overtime, do not accord with the relevant provisions of the Award that applied in this matter, and which make specific provision for what is overtime and the basis of payment for time worked beyond 38 hours per week.  Hours worked that did not exceed 38 hours were not and cannot be treated as overtime, having regard to the provisions of the Award. The “specified period” referred to by the Arbitrator at paragraph 32 of his Statement of Reasons for Decision is not the 17 hours per week that the Appellant was nominally employed to work, but in fact, the rostered ordinary hours of work, specified fortnightly by the Respondent, and for which no overtime was paid or payable.  In my view, the Arbitrator erred in treating the hours worked in excess of 17 hours per week and up to 38 hours per week, as overtime, and I find accordingly.   

  1. The parties agree and I concur, that section 42(4) of the 1987 does not apply in this matter. The Appellant’s current weekly wage rate does not exceed her average weekly earnings.

  2. Having regard to my finding at paragraph 43, I find that section 42(6) of the 1987 Act has no application to payment for the hours worked by the Appellant, that were between 17 hours and 38 hours per week, but does apply to any amount paid to her in respect of overtime (as outlined), shift work or other penalty rates that were paid to her.

DECISION

  1. Leave to appeal is granted.  The appeal against the decision of the Arbitrator, dated 18 March, 2003 that “the Applicant’s claim for additional weekly compensation from 4th December 2001 to 3rd May 2002 is dismissed” is allowed.  The decision of the Arbitrator is revoked and the following decision is made in lieu thereof:

The Respondent is ordered to pay to the Appellant, weekly payments of compensation, for the period 4 December, 2001 to 3 May, 2002, calculated in accordance with her applicable current weekly wage rate, pursuant to section 42(1) of the 1987 Act, based upon rostered hours specified by the Respondent, and worked by the Appellant, up to 38 hours per week.

COSTS

  1. The Respondent is ordered to pay the costs of the Appellant, as agreed or assessed.

Gary Byron
Deputy President

14 January, 2004

I certify that that this is a true and accurate record of the reasons for decision of Deputy President Gary Byron, Workers Compensation Commission

Registrar
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