Philpott v Australian Plays Transform - [2023] NSWPICPD 21

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Philpott v Australian Plays Transform [2023] NSWPICPD 21
APPELLANT:	Lachlan Philpott
RESPONDENT:	Australian Plays Transform
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W5358/21
PRESIDENTIAL MEMBER:	Acting Deputy President Michael Perry
DATE OF APPEAL DECISION:	21 April 2023
ORDERS MADE ON APPEAL:	1. Order 2 in the Certificate of Determination dated 4 March 2022 is amended by replacing “27 September 2021” with “21 September 2021”. 2. The Certificate of Determination dated 4 March 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – weekly compensation – work capacity – whether an assessment of a teacher’s ability to earn in suitable employment can include the value of alleged unpaid work performed by a teacher outside the school classroom – whether the law of restitution is relevant to an assessment of weekly compensation
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Robison, counsel
Santone Lawyers
Respondent:
Mr L Brazel, counsel
Hall & Wilcox
DECISION UNDER APPEAL
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	4 March 2022

INTRODUCTION AND BACKGROUND

On 4 July 2018, Mr Philpott, the appellant, was employed by Australian Plays Transform, the respondent, as its artistic director/chief executive officer. He had an education and work history which included substantial work as a writer and teacher.[1] The respondent is in the business of developing programs for playwrights and other creative endeavours, is registered as a charity, and is a public company pursuant to the Australian Charities and Not-for-Profits Commission Act 2012 (Cth).
[1] Philpott v Australian Plays Transform [2022] NSWPIC 96 (reasons), [12]–[13].
The appellant suffered a psychological injury between July 2018 and 26 March 2019 (the injury). The respondent ultimately (6 August 2019) accepted the injury as compensable under the Workers Compensation Act 1987 (the 1987 Act) and commenced to pay weekly compensation and expenses under s 60 of the 1987 Act to the appellant.
On 26 May 2021, the respondent sent the appellant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) advising him of its Work Capacity Decision made under s 43(1)(c) of the 1987 Act, that he was able to earn in suitable employment the amount of $1,184.30 per week as a secondary school teacher for 26 hours per week at the rate of $45.55 gross per hour (the WCD).[2] The appellant sought a review of the WCD. On 16 August 2021, the respondent issued a review notice under s 287A of the 1998 Act which relevantly confirmed the WCD.[3] (The abbreviation WCD will now be used as a reference to both the work capacity decision and the review notice.)
[2] Reply to Application to Resolve a Dispute (reply), pp 1–6.
[3] Application to Resolve a Dispute (ARD), pp 56–62.
The appellant then commenced a proceeding (ARD) in the Commission to challenge the WCD. He ultimately sought a determination that he was only able to earn in suitable employment an amount representing about half of his ability to earn as assessed in the WCD on the basis that the WCD only took into account 26 hours’ face-to-face teaching in circumstances where he would also be required to undertake class preparation and/or administrative duties for about an equivalent number of hours to the face-to face teaching.
The Member rejected the appellant’s argument, dismissed the ARD, and confirmed the WCD. The appellant brings this appeal against the Member’s determination.

A LIMITED DISPUTE

The Member initially described the issue at this relatively high level of abstraction: “does the Work Capacity Assessment contained in the dispute notice of 26 May 2021 and subsequently confirmed by the further dispute notice of 16 August 2021, accurately describe [the appellant’s] earning capacity?”[4] The parties agreed he correctly identified that issue.[5] However, their submissions, both before the Member and on appeal, have also allowed that description to be reduced to more concrete terms.
[4] Reasons, [3(a)].
[5] Appellant’s submissions on appeal (appellant’s submissions), [11]; respondent’s submissions on appeal (respondent’s submissions), [10].
The appellant put this in his submission of 28 January 2022 to the Member:
“The real issue in dispute appears to be the result of the respondent not taking into account the unpaid work which a teacher must do in addition to standing in front of a classroom actually delivering a lesson. The [appellant’s] position is the number of hours in the classroom cannot be equated with capacity for the purposes of s 43 … Rather, in assessing capacity in this respect, one ought to include the outside the classroom work to arrive at a reasonable assessment of weekly entitlements under the Act.”[6] (emphasis added)
[6] Appellant’s submissions before the Member, 28 January 2022, [4].
The Member noted the appellant’s submission that the “real issue”:
“… concerned an allegation that the respondent had not taken into account the unpaid work which a teacher had to do in addition to standing in front of a classroom actually giving the lesson. The number of hours in the classroom, it was argued, could not be equated with capacity in terms of s 43 of the 1987 Act. The assessment should include out of classroom work to arrive at a reasonable assessment of entitlements.”[7] (emphasis added)
[7] Reasons, [56]–[58].
The Member also noted the submission for the appellant that “there was no major medical contest in the case, and that the consensus was that the [appellant] was fit to work for 26 hours per week”.[8] He then found:
“… the issue before me is discrete. There is unanimity between the rehabilitation experts that the nominated employment of a secondary school teacher constitutes suitable employment, in terms of s 43(1)(b). There has been no dispute that Mr Philpott’s current work capacity is limited to 26 hours per week, pursuant to s 43(1)(a).
The dispute before me is as to the amount [the appellant] can earn in the agreed suitable employment. Even then, there has been no argument that the amount of $1,184.30 is what Mr Philpott would earn teaching for 26 hours per week. The argument is that the nominated amount does not fairly represent the division of work required between face-to-face teaching and preparation for the same.”[9]
[8] Reasons, [64]–[65].
[9] Reasons, [92]–[93].
Neither party has challenged the Member’s recording or formulation of the submissions and/or the nature and extent of the issue(s).

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents before me, and the submissions by the parties that the appeal can be determined on these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

The following summary is intended to assist in explaining the issues for determination.

Vocational Assessment Report by Vritika Chandra dated 30 September 2019

Ms Chandra assessed the appellant on 19 September 2019 at the request of the respondent. She noted that his general practitioner (GP), Dr Elspeth Man had certified him having some capacity to work between 9 August 2019 and 9 September 2019, 6 hours per day, 5 days per week; and that he was fit for freelance work.[10]
[10] Reply, p 28.
Ms Chandra carefully set out the appellant’s history. It is unnecessary to recite the whole of this as the Member did so in his decision[11] and I have considered it. It shows the appellant having a positive international reputation when appointed by the respondent. He had completed of a Bachelor of Arts (English Literature/Theatre Studies) from the University of New South Wales in 1994, a Diploma of Education (with merit) from the University of Sydney in 1995, a Post-Graduate Diploma of Directing from the Victorian College of Arts in 1999 and had NSW Education Standards Authority accreditation with respect to casual teaching.
[11] Reasons, [12]–[13].
The appellant’s history also includes work as a writer, lecturer in playwriting, teacher of undergraduate drama students, and high school drama teacher, both in Australia and internationally. Ms Chandra noted the appellant was interested in returning to work in creative writing or teaching roles, and opined that working as a secondary school teacher, drama teacher and book or script editor were all suitable roles for him.

Dr Elspeth Man, GP

Dr Man has been appellant’s GP since at least 2007. She was initially consulted in relation to the injury on or about 26 March 2019. She continued to review and manage the injury until 12 August 2020 when she completed a questionnaire indicating her agreement that the vocational options (proposed by Valentina Grasevski, rehabilitation consultant) of secondary school teacher, drama teacher (private tuition), and book or script editor, were appropriate for the appellant. The questionnaire included a basic description of the duties and a summary of the psychological demands of each of the proposed vocations.[12]
[12] Reply, pp 60–61.
Dr Man then reviewed the appellant on about nine further occasions until a further review on 17 June 2021 when she noted, on a medical certificate, her participation in a case conference with the appellant and an EML case manager. She also continued her certification of the appellant as being fit to work 26 hours per week, also noting “this includes class prep[aration] time, marking time at home etc”.[13] (emphasis added)
[13] Reply, p 119.
On a medical certificate dated 20 October 2021, Dr Man said she regarded the appellant as fit for some type of work 26 hours per week, again noting “includes prep time for classes etc”. On that certificate she also noted this previous record by her on 23 July 2021: “not many jobs available with COVID lockdown. Continue with 26 hours a week (including any creative work at home, or preparation for classes/teaching). Continue r/v with psychologist”.[14]
[14] Reply, p 125.

Valentina Grasevski (At Work Occupational Health & Safety Pty Ltd)

Ms Grasevski, rehabilitation consultant, prepared a “Labour Market Report” at the request of the respondent dated 20 August 2020,[15] to provide an updated assessment of suitable vocational options for the appellant to pursue as part of his vocational rehabilitation. She considered his work history and educational qualifications and concluded that suitable employment options were as a secondary school teacher, drama teacher or book editor/script writer.
[15] Reply, pp 47–59.
Ms Grasevski provided various rehabilitation progress reports; the last on 17 August 2021,[16] when she noted the appellant was then certified to work 26 hours per week.
[16] Reply, pp 81–82.

Fiona Brown, psychologist

Ms Brown was the appellant’s treating psychologist between September 2020 and at least May 2021. On 16 September 2020, she reported[17] to the insurer that he “currently has capacity for 3–4 hours of work 5 days per week, providing the work is suitable and in line with his skill set”. She then reported on 1 December 2020[18] that the appellant had significant ongoing symptoms, and that in November 2020, he:
“… accepted a role as a casual, full-time teacher in an arts school. This is significant as it represents a transition towards work that consistently makes demands on his time, energy, organisational skills, and capacity to focus. It also requires that he manage his mood and anxiety levels effectively. [The appellant] stated that he is enjoying the routine and stimulation of some of the work. However, he occasionally feels highly stressed and even overwhelmed.”
[17] Reply, p 63.
[18] Reply, p 65.
Ms Brown then reported on 30 May 2021,[19] noting the appellant had been working full time as a drama teacher at the Newtown Performing Arts School since November 2020 and was continuing to find the structure of the working week useful. She also noted that in the previous few months, he had started to find it difficult to sustain a healthy work-life balance, had not had time to exercise regularly, and had sleep difficulties and more anxiety.
[19] Reply, p 66.

The Work Capacity Decision

The WCD advised the appellant that his weekly payments were to be reduced to $649.20 per week from 6 September 2021. The reasons included reference to Dr Man certifying the appellant as having capacity for some type of employment from 15 April 2021 for 26 hours per week. The decision also referred to the insurer’s belief that the vocational options of secondary school teacher, drama teacher and book/script editor were suitable for him.
The WCD refers to the Labour Market Report also identifying the role of secondary school teacher as a suitable employment option for the appellant, and that Dr Man had “provided approval” that such role was “a suitable employment option for you”. It was also noted that “the employer contact at the Australian Performing Arts Grammar School [APA Grammar] confirmed that you have the necessary qualifications, skills and extensive work experience suited for the role”.[20]
[20] Reply, p 3.
The WCD then states the decision was made under s 43(1)(c) of the 1987 Act and that the appellant could earn $1,184.30 per week in suitable employment. It was also noted that the “employer contact at [APA Grammar] confirmed … this role could be considered part time and that you are able to earn $45.55 gross per hour. On a part-time basis this would equate to $1,184.30 gross per week”.[21]
[21] Reply, p 4.
The appellant applied for a review of this decision, and a further notice under s 287A of the 1998 Act issued on 16 August 2021[22] which maintained the decision. The review notice noted the appellant had provided further documentation in support of the application for review, including Dr Man’s 17 June 2021 certificate, the Medical Appeal Panel finding dated 15 December 2020,[23] and reports of Fiona Brown, psychologist, dated 16 September 2020[24] and 30 May 2021.[25] As to the “Ability to Earn in Suitable Employment”, the insurer noted that the assessment of $45.55 gross per hour related to potential earnings at the Shore school, not APA Grammar, where the rate was $47.50 per hour. The insurer then said that it was thus satisfied that the amount of $1,184.30 “represents the amount that you would be capable of earning in suitable employment, pursuant to section 43(1)(c) of the 1987 Act”.
[22] ARD, pp 56–62.
[23] ARD, pp 40–55.
[24] Reply, pp 62–63.
[25] Reply, p 66.
The insurer corrected information given to the appellant earlier, noting the assessment of the appellant’s capability of earning $1,184.30 per week (based on $45.55 per hour) in the role of secondary school teacher at 26 hours per week was based on potential earnings at the Shore school, not the APA Grammar School ($47.50 per hour) and was thus satisfied that the amount of $1,184.30 still represented the amount he would be capable of earning in suitable employment.

Appellant’s statements

The appellant has made various statements. Paragraph [14] of the appellant’s submissions on appeal identifies two as being relevant to the issues in the case. The first of these is the “original statement” dated 16 April 2019,[26] despite it being “largely now a matter of background”. I have read that statement and agree it is largely a matter of background. Otherwise, the following summary of the appellant’s statements is substantially abridged because the Member summarised such material in detail, which is summarised in more detail at [50]–[52] below. In summary, the “supplementary” statement[27] referred to in [14] of the appellant’s submissions sets out the reasons why he sought a review of the WCD. He stated it was “undisputed that the maximum hours I should work are 26 hours per week but, given I am going to be teaching no evaluation has considered how this 26 hours is accounted for”.[28]
[26] ARD, pp 1–15.
[27] ARD, pp 27–31.
[28] ARD, p 28.

Report “Understanding work in schools … 2018 report to the NSW Teachers Federation”

No particular aspects of this report (the SU report) were drawn to my attention by the appellant. However, I have read it. It was authorised by the NSW Teachers Federation (Teachers Federation),[29] was authored by A/Prof Dr Susan McGrath-Champ of the University of Sydney Business School and others. The study was designed to address five research questions regarding work in schools, relating to the work of teachers, principals and other school executives, including how teaching and learning staff in schools evaluate the activities undertaken in terms of the importance and necessity of the work, the time and resources required or not required, whether the work was managed in a time-consuming or cumbersome way, and whether the work is focused on compliance rather than teaching and learning.[30]
[29] ARD, p 466.
[30] ARD, p 413.
The key findings summarised by the authors of the SU report[31] included an observation that despite new requirements relating to administration and accountability, schoolteachers retained their primary focus on matters directly relating to teaching and learning work with students, which accounted for the bulk of their daily work. However, there was also evidence of many teachers struggling to preserve this student focus in the face of the new work activities that were imposing additional hours and demands.
[31] ARD, pp 408–409.
Another key finding in the SU report was that teachers highly valued tasks perceived to be directly related to teaching and student learning work – including planning and teaching lessons. Teachers did not value administrative work that impinged on this core focus, which was regarded as time-consuming, cumbersome and concerned with compliance. This included work associated with accreditation, collection, analysis and reporting of data, and compliance with state policies. The SU report then identified a significant growth in overall working hours over the previous five years, particularly relating to the increasing administrative tasks, and that such increased demands are exerting severe impacts upon teachers with various negative effects.
The report finished by “looking ahead”, summarising that teachers in NSW public schools undertake a wide range of complex and important professional work, but also confirming previous findings that demands on teachers are very substantial, potentially debilitating, and growing – particularly in relation to administration work, which was hindering the capacity of teachers to focus on matters directly relating to their teaching and students’ learning. The authors of the report suggest some strategies for redress.

Email correspondence relating to job seeking

This evidence[32] relates to emails between the appellant and Mr Paul Eastway of Newington College, Sydney, following the appellant being informed on 20 August 2021, at 12:31 PM, that his application for a teaching position had not been successful. At 15:21 hours that day, Mr Eastway wrote to the appellant “in terms of feedback for the interview”. He thanked the appellant for applying in glowing terms, referring to the appellant as “wonderful”, and “honest and authentic” and “brilliant” and “passionate … about teaching and your students”.
[32] ARD, pp 399–402.

Mr Eastway also noted that it was a hard decision, but the application was not successful because it came down to the experience of the successful candidate in HSC project marking, and also in teaching the international baccalaureate. This was the relevant experience required for the position having regard to the earlier departure of another staff member.
Mr Eastway wrote that “it was simply a matter of the candidate we chose having had the opportunity to put runs on the board in those crucial areas due to his longevity in the profession”. He also wrote that he hoped the appellant was “still keen to work with us on projects moving forward!”

Murray Smith, Rehabilitation Consultant, Workers Health Centre; main report and supplementary report both dated 4 October 2021

Mr Smith notes that the Workers Health Centre was requested by the appellant’s solicitor to review the vocational options in the Labour Market Report to determine whether they were suitable for the appellant.[33] In his main report Mr Smith relevantly opined that given the factors referred to in the SU report, if the appellant were able to achieve employment in a secondary school setting, he would only be able to work two days per week based on his current capacity including teaching and class preparation time.[34]
[33] ARD, p 89.
[34] ARD, p 90.
On 24 September 2021, before writing his reports, Mr Smith contacted Dr Man, noting she confirmed her approval of the “three vocational options identified”, and that the current capacity of 26 hours per week if he was to pursue a teaching role, will include preparation time for classes etc. He then noted that he contacted both the Teachers Federation and the Independent Education Union regarding teaching requirements in the public and private systems and:
“They confirmed that teachers are employed either full time, part time or casually. Full time teachers are employed for 35 hours per week based on 7 hours per day and part time and casual teachers are employed at either 7 or 3.5 hours per day. A 7 hour working day includes face to face teaching and paid class preparation time.
Both unions advised that teachers work additional hours of unpaid preparation time outside of work hours and referenced the Department of Education Fact Sheet October 2016, where teachers are expected to also attend meetings outside of work hours. The [SU report], commissioned by [Teachers Federation] … indicates that teachers can work up to 2.16 hours of preparation time for every 1 hour of face-to-face teaching time.
Based on the [SU report]:
Teachers on average undertake face-to-face teaching for 4.13 hours per day for a 7-hour day. Teachers are paid for 7 hours per day which equates to 2.87 hours of paid preparation time.
Considering the ratio of 2.16 hours per 1 hour of face-to-face teaching time this equates to 8.93 hours per day in total preparation time. This results in an additional 6.06 hours per day of unpaid preparation time.
As a result, a teacher spends 13.06 hours per day in total of face-to-face teaching time, as well as paid and unpaid preparation time.
Based on Mr Philpott’s current capacity of 26 hours which includes teaching and preparation time, he has the capacity to work … 26 hours per week divided by 13.06 hours per day, equating to approximately 2 days per week of paid employment.”[35] (emphasis added)
[35] ARD, pp 90, 101.

NSW Government Education – The School Day Fact Sheet (the School Day Fact Sheet)

This document is part of and attached to the SU report. Its stated purpose is to provide information to schools “about a range of operational matters occurring during the school day such as the hours of duty of teachers, hours of operation of schools, attendance of teachers at meetings, requirement of teachers to be on duty during relief from face to face teaching … etc”. The “Hours of Duty” of teachers chapter[36] states it is a long-standing requirement of the Department that:
“… teachers are required to be on duty at school for periods of time that fall outside the start and finish times of school. The legal basis of that requirement is contained in Determination 3 Hours of Duty, made under the Teaching Service Act 1980 (the TS Act) …
This power under the TS Act allows the Secretary to establish conditions of employment for teachers such as leave and hours of duty …”.
[36] ARD, p 467.
Determination 3 also provides that teachers are required to be on duty at school half an hour before schoolwork begins in the morning and half an hour after the dismissal of school in the afternoon. Also, where special circumstances arise, attendance beyond these hours may be required.
As to face-to-face teaching hours in high schools, the School Day Fact Sheet refers to cl 16 “Allocation of Duties in High Schools in the school teachers award”,[37] as follows:
“Teachers – 28 periods per week plus up to 3 periods per week for sport. (This equates to 20 hours and 40 minutes per week)
…
A ‘period’ … is defined … as a 40-minute teaching period.”
[37] ARD, p 468.
As to “Staff meetings and other non supervisory duties”, the School Day Fact Sheet states that all teachers can be required to be on duty before and after school for non-supervisory duties which include but are not limited to attending staff meetings and parent teacher meetings. It is also noted that:
“It is the responsibility of the principal to set these activities for the staff at the school. This is a management decision by the principal that does not require the agreement of staff or staff consent”.

THE MEMBER’S REASONS

The Member provided a detailed summary of the evidence and submissions, comprising over 20 pages. He set out the appellant’s history as recorded by Ms Chandra.[38]
[38] Reasons, [13].
The Member noted Ms Chandra recording the appellant’s interest in returning to work in creative writing or teaching, and her opinion that positions as a secondary school teacher, drama teacher and book or script editor were all suitable jobs for him.[39]
[39] Reasons, [14]–[16].
The Member also summarised the terms of the WCD,[40] including that the role of secondary school teacher was suitable employment for the appellant.
[40] Reasons, [17]–[19], and [25]–[29] above.
The Member noted the WCD referring to Dr Man’s certification that she had upgraded the appellant’s capacity to 26 hours per week “since Mr Philpott’s appeal to a [Medical Appeal Panel] had found that he suffered a 7% whole person impairment on 15 December 2020”.[41]
[41] Reasons, [19].
The Member noted that the above opinion of Dr Man was confirmed in Mr Smith’s report.[42] He also recorded[43] Mr Smith’s noting of the appellant’s employment history since his return from Paris.[44]
[42] Reasons, [20].
[43] Reasons, [21].
[44] ARD, p 93.
The Member noted the 29 September 2021 offer of employment, as a temporary drama artist in residence on a part-time basis, from St Catherine’s School was accepted by the appellant for one school term.[45]
[45] Reasons, [25].
The Member noted[46] that the appellant’s argument as to the relevance of preparation time was first raised in the appellant’s statement of 14 September 2020 when he wrote that it was “undisputed that the maximum hours I should work are 26 hours per week but, given I am going to be teaching no evaluation has considered how this 26 hours is accounted for”. The Member then summarised, in detail, the content of that statement, including the nature of the duties involved in the “non-face-to-face hours for a secondary school Drama teacher”. He also noted the appellant’s reference to the School Day Fact Sheet:
“which states that a full-time secondary teacher’s maximum face-to-face load teaching is 20 hours and 40 minutes a week, however the additional duties and the time these duties take … are clearly hours of work which should be included … since I would be unable to fulfil any teaching role without doing the work described in each of the components”.[47]
[46] Reasons, [27]–[28].
[47] ARD, pp 28–29.
That statement also refers to the SU report saying that teachers were working on average 54 hours per week (43 hours at school and 11 hours at home) due to increasing administrative demand and that the report suggests that an average of 2.16 hours of preparation work and administration work is being done by NSW teachers for every hour of face-to-face teaching. The Member then noted the appellant stating that:
“Applying the findings of this report, I have the capacity to do up to 26 hours paid work per week assuming the maximum is 38. Given the slowness of my work rate since the injury and the reality of the extra work anyone does when they begin employment in a new workplace, I will probably need to exceed 26 hours”.[48]
[48] ARD, p 29.
The Member also noted the appellant’s statement that the nature of teaching was unique and given the “widely documented evidence of hours teachers must allocate, the calculations made in the review of my capacity are incorrect and they assume 26 hours of teaching to be the total amount of my work for the week”.[49]
[49] Reasons, [28].
The Member then noted that “[t]his theme was taken up by Mr Smith” in his reports and that he had contacted Dr Man and she stated that the appellant “will be unlikely to achieve an upgrade in capacity to be fit for some type of work for his pre-injury hours. Dr Man also confirmed her approval of the 3 vocational options identified … Dr Man further confirmed … current capacity of 26 hours per week if he was to pursue a teaching role, will include preparation time for classes etc”.[50]
[50] Reasons, [29].
The Member then further noted the exploration by Mr Smith as to how much of a teacher’s time is spent in preparation and how much in face-to-face teaching for students, saying that contact had been made with the Teachers Federation and the Independent Education Union about teaching requirements. In this regard he carefully summarised the relevant content as noted at [38]–[39] above:
“… teachers are employed either full time, part time or casually. Full time teachers are employed for 35 hours per week based on 7 hours per day and part time and casual teachers are employed at either 7 or 3.5 hours per day. A 7-hour working day includes face to face teaching and paid class preparation time.”[51]
[51] Reasons, [30].
The Member then noted Mr Smith was asked to provide a supplementary report (4 October 2021) in which he also summarised the following:
“Based on the [SU report]:
Teachers on average undertake face-to-face teaching for 4.13 hours per day for a 7-hour day.
Teachers are paid for 7 hours per day which equates to 2.87 hours of paid preparation time
Considering the ratio of 2.16 hours per 1 hour of face-to-face teaching time this equates to 8.93 hours per day in total preparation time. This results in an additional 6.06 hours per day of unpaid preparation time. As a result, a teacher spends 13.06 hours per day in total face to face teaching time, as well as paid and unpaid preparation time. Based on Mr Philpott’s current capacity of 26 hours which includes teaching and preparation time, he has the capacity to work:
26 hours per week divided by 13.06 hours per day, equating to approximately 2 days per week of paid employment.”[52]
[52] Reasons, [31]–[32].
The Member noted, in detail, the submissions put for the parties. These have also been summarised in detail below and need not be repeated here. The Member then commenced his discussion with a recitation of the relevant statutory provisions, including ss 32A, 44A, 38(3) of the 1987 Act[53] before ultimately disposing of the issues.[54]
[53] Reasons, [84]–[87].
[54] Reasons, [89]–[96].
The Certificate of Determination issued on 4 March 2022 records:
“1. The work capacity decision of 26 May 2021 is confirmed.
2. The respondent will pay the [appellant] the sum of $649.20 per week from 6 September 2021 to 27 September 2021.”
On 1 April 2022, the respondent’s solicitor emailed the Commission seeking an amendment to the second order of the Certificate of Determination by replacing “27 September 2021” with “21 September 2021”. The appellant consented to that proposal. Accordingly, I order that the Certificate of Determination be amended in those same terms.

GROUNDS OF APPEAL

The appellant relied on the following grounds of appeal:
(a) Ground One: The Member misdirected himself as to the correct test in law for the assessment of weekly benefits (error of law).
(b) Ground Two: The Member misconstrued the nature of the appellant’s work duties for the purposes of assessing weekly benefits (error of fact).

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352 OF THE 1998 ACT

This appeal is brought under s 352 of the 1998 Act. Subsection 5 of that section provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd[55] Roche DP, applying Whiteley Muir & Zwanenberg Ltd v Kerr[56] to the appeal process pursuant to s 352, said:
“(a)    [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”
[55] [2011] NSWWCCPD 25; 10 DDCR 156, [19].
[56] (1966) 39 ALJR 505 (Whiteley Muir).
In Workers Compensation Nominal Insurer v Hill[57] Basten JA said:
“With respect to errors of fact-finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5)”.
[57] [2020] NSWCA 54 (Hill), [20].
In Northern New South Wales Local Health Network v Heggie,[58] dealing with the scope of such appeals, Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518–519”.
[58] [2013] NSWCA 255 (Heggie), [72].

LEGISLATION

As noted above, the Member recited the relevant legislation in the reasons; namely ss 32A, 38(3), 43 and 44A of the 1987 Act. Given the nature of the ultimate issue, it is unnecessary to recite those provisions again here. I have carefully considered them and will refer to aspects of them in my summary of the submissions, and the discussion below.

SUBMISSIONS

Appellant’s written submissions

Ground One

The appellant makes the following submissions. When evaluating earning capacity, the work a teacher has to do outside the classroom should be taken into account.[59] While the 1987 Act includes a variety of formulae and tests for the award of various compensation, the appellant says that the Commission should generally strive to actually compensate injured workers. This is not to suggest a general concept of restitution applies; the 1987 Act must be construed in its terms. But, absent statutory formula to determine a right under the 1987 Act, common sense should apply, and the objectives of the legislation are clearly to compensate injured workers.
[59] Appellant’s submissions, [12].
The appellant contends that a worker will not be compensated without restitution to his or her position but for injury, and that requires a commonsense evaluation, in the context of weekly benefits, of what the work in question actually involves, not just the hours for which remuneration is made.[60]
[60] Appellant’s submissions, [13].
The appellant submits that certain aspects of the statutory approach to calculating weekly benefits are not logical, nor do they restore workers to the pre-injury position, and therefore clearly do not amount to restitution; for example, the arbitrary award of 95% and then 80% of pre-injury earnings and imposition of time limits for the award under ss 36, 37 and 38 of the 1987 Act.
It is said that the legislation is silent on the precise issues in this appeal, namely whether a teacher’s non-classroom work is taken into account or not. The appellant argues that common sense should prevail in the absence of a specific legislative restriction on it. For this reason, the appellant submits that the Member misdirected himself as to the resolution of the matter,[61] including as to the following evidence: the appellant’s original statement[62] “which is largely now a matter of background”, his supplementary statement which sets out “the reality of teaching and the details including as to where and when work must be done”,[63] the email correspondence regarding job seeking,[64] and the SU report setting out “what teachers are required to do, including unpaid work”.[65]
[61] Appellant’s submissions, [14].
[62] ARD, p 1.
[63] ARD, p 27.
[64] ARD, p 399.
[65] ARD, p 403.
The appellant submits that the Member (at [94] of the reasons):
“… focused on the wrong issue. The issue is not, ultimately, [whether] restitution is an apt term or not. It was intended below, as here, to refer to that common law concept by way of background. It is not submitted that the worker wins or loses … on this basis. The question is what the 1987 Act truly requires. If restitutio in integrum is the wrong concept, then the right concept must still be, save where the legislation says otherwise, to compensate a worker in a common-sense fashion. The converse interpretation would be to submit that where the legislation is silent, one must not apply common sense, and that must not be correct”.[66]
[66] Appellant’s submissions, [15].
The appellant adds that the 1987 Act should be construed beneficially to the appellant in case of any doubt. But there is no doubt the real nature of the teacher’s working day should be the relevant consideration.
The appellant concludes that aspects of the statutory approach to calculating weekly benefits are not logical, nor do they restore workers to the pre-injury position and therefore do not amount to restitution.

Ground Two

As the misdirection in law for Ground One relates to the approach taken to the evidence, the appellant says in the alternative that there is an error on the facts as well.

Respondent’s written submissions

Ground One

The respondent makes the following submissions. The respondent says the Member applied the correct test for the assessment of weekly benefits. The appellant was certified as being fit for 26 hours of employment by his GP. This, it is said, was common ground.[67] It was also accepted that the roles of secondary school teacher, drama teacher and/or book or script editor might be suitable, as recognised by the appellant’s GP, treating psychologist, Mr Smith and Ms Chandra. The respondent argues that the appellant is more than qualified for these roles given his education and work history. He has worked as a teacher since the injury.[68]
[67] Respondent’s submissions, [12].
[68] Respondent’s submissions, [13].

The respondent submits that the only real issue was whether the certification of hours should have been discounted to reflect that teaching involved both face-to-face time and preparation time. It contends that the Member made the correct decision in this respect.[69] The respondent accepts the appellant’s evidence that a full-time teacher’s pay is for 35 hours per week but that the teacher is only allocated to be on face-to-face duties for part of that time (20 hours 40 minutes).[70] But the appellant can seek employment of 26 hours per week and be paid for 26 hours per week but would not be expected to be face-to-face teaching for all that time. Apportionment of face-to-face teaching time is a matter for the employer. This might depend on a number of matters, for example, the size of classes and nature of what is being taught. The respondent notes that the appellant has been certified for 26 hours a week and has the capacity to be paid for that.
[69] Respondent’s submissions, [14].
[70] See ARD, p 468.
The respondent argues that it has not been demonstrated how the Member fell into error. Nothing indicates he did not consider all relevant matters to the assessment of the appellant’s current work capacity. The appellant needs to obtain paid work for 26 hours per week, which can include both face-to-face teaching and preparation time.
The respondent submits that the legislation provides for statutory benefits, not full restitution or restitutio in integrum. For example, in assessing suitable duties, the Commission was obliged to avoid considering various matters appearing in s 32A. The scheme “is more like a safety net and not to provide full benefits for all losses incurred by workers”.[71]
[71] Respondent’s submissions, [16].
The respondent says that the reality of teaching is that the employer will give time off face-to-face teaching for lesson preparation, but the teacher is paid for the time they are to work, as is clear from the Education Department School Day Fact Sheet produced by the appellant.[72]
[72] ARD, p 467.
It is said that the emails show how close the appellant came to getting work as a teacher.[73] The experience of the successful candidate was apparently greater. This supports the WCD and the Member’s decision. The respondent argues that the SU report is of limited weight. It was prepared for the Teachers Federation as part of a wages and industrial campaign.[74] It was purportedly based on the state-wide online questionnaire of public-school teachers who were Teachers Federation members.[75] Only about one third of the surveys were answered and of those, only 300 responses were taken in a random sample for qualitative analysis.
[73] ARD, p 401.
[74] ARD, p 407.
[75] ARD, p 413.

Ground Two

The respondent submits there was no error of fact. The appellant was certified fit to undertake duties for 26 hours a week; duties which include secondary education teacher – English, drama teacher (tutor).
The respondent says that the appellant was actually undertaking teaching duties in the period leading up to the determination by the Member who had the advantage of being able to analyse those documents produced by the appellant. This showed he was able to earn more than had been allowed in the WCD. Although this did not clearly reconcile with information given to the insurer, the respondent submits it amounted to clear evidence of a capacity to earn.[76]

DISCUSSION

[76] Reasons, [54].

Ground One

The underlying premise of both appeal grounds, as put for the appellant – that the Member did not take into account what the appellant describes as his “non-classroom work”[77] – is incorrect and I reject his submissions in this regard. The Member conducted a comprehensive review of the evidence which included him noting “the relevance of preparation time was first raised by Mr Philpott in an addendum to his statement of 14 September 2020”. The Member then detailed the relevant passages of that statement, including that “the non-face-to-face hours for a secondary school Drama teacher include admin, meetings, duties, training, planning …”.[78]
[77] Appellant’s submissions, [14].
[78] Reasons, [27]–[28].
The Member then noted the appellant stating he had attached the School Day Fact Sheet to his statement, stating amongst other things, that “a full-time secondary teacher’s maximum face-to-face load teaching is 20 hours and 40 minutes a week, however the additional duties and the time these duties take … should be included … since I would be unable to fulfil any teaching role without doing the work described in each of the components”.[79]
[79] Reasons, [28] and paragraph [50] above.
The Member also noted[80] Mr Smith’s report referring to Dr Man’s confirmation to him that “Mr Philpott’s current capacity of 26 hours per week if he was to pursue a teaching role, will include preparation time for classes etc” (emphasis added).
[80] Reasons, [29].
The Member then commenced his ultimate analysis by firstly noting that he was “unable to accede to the logic that underpinned Mr Philpott’s submissions regarding the dichotomy between preparation for class and teaching in class itself”.[81] In context, I take this to mean the Member saying he did not accept the logic of the appellant’s submission being based on an assumption that there was a difference between remuneration for core face-to-face teaching work and other work preparing for, or work ancillary to the face-to-face teaching. This does not mean the Member did not take such “non-classroom work”[82] into account. It means he did not accede to this submission put to him:
“The real issue in dispute appears to be the result of the respondent not taking into account the unpaid work which a teacher must do in addition to standing in front of a classroom actually delivering a lesson. The [appellant’s] position is that the number of hours in the classroom cannot be equated with capacity for the purposes of s 43 (of the 1987 Act) … Rather, in assessing capacity in this respect, one ought to include the outside the classroom work to arrive at a reasonable assessment of weekly entitlements under the act. The [appellant’s] position is consistent with the legal orthodoxy of statutory interpretation and with common sense.”[83] (footnote excluded and emphasis added).
[81] Reasons, [89].
[82] Appellant’s submissions, [14].
[83] Appellant’s submissions before the Member, [4].
Making it even clearer that he took the appellant’s “non-classroom work” into account in his analysis of what the appellant was able to earn in suitable employment, the Member stated that “it is axiomatic that a teacher would need preparation time in order to present to his/her classes, not to mention the additional work of marking papers and other functions not associated with the classroom teaching itself”.[84]
[84] Reasons, [90].
While acknowledging that there is no “generalised concept of restitution” and that “the 1987 Act must be construed in its terms”, the appellant then submits that “absent statutory formula to determining a right under the 1987 Act, common sense should apply, and the objectives of the legislation are clearly to compensate injured workers”, and a worker will not be compensated “without restitution to his or her position but for injury, and that requires a common sense evaluation … of what the work in question actually involves – not just the hours for which remuneration is made by the employer.”[85] (emphasis added)
[85] Appellant’s submissions, [13].
The “real issue in dispute” submitted for the appellant is the “respondent not taking into account the unpaid work which a teacher must do in addition to standing in front of a classroom”[86] (emphasis added).
[86] Appellant’s submissions before the Member, [4].
It was agreed, or at least there was no issue about the fact, that working 26 hours per week as a secondary school teacher did constitute suitable employment within the meaning of s 32A and s 43(1)(b) of the 1987 Act. The appellant has not otherwise argued that he has been incapacitated for any aspect of the out-of-class duties, except as to him needing to work about the same amount of unpaid non classroom hours as with face-to-face teaching.
The appellant then[87] submits “[t]he legislation is silent on the precise issues in this appeal, namely whether a teacher’s non-classroom work is taken into account or not”, and because there is “no legislative restriction on common sense, common sense should prevail. For this reason, the [Member] misdirected himself as to the resolution of the matter, including as to” aspects of the evidence as noted in [14(a)–(e)] of the appellant’s submissions. (emphasis added)
[87] Appellant’s submissions, [14].
I also reject this argument. One reason for doing so is this: The 1987 Act may be silent about “whether a teacher’s non-classroom work is taken into account or not”. But that is wholly unsurprising. Legislation is usually unable to express or imply universally specific factual circumstances. The appellant’s argument uses an erroneous approach to analysing whether the Member misdirected himself as to the correct test for the assessment of weekly benefits and is thus flawed if only for this reason. To conflate the notion of the 1987 Act being silent about a teacher’s non-classroom work with the terms of Ground One generates that error.
The appellant has acknowledged that “the 1987 Act must be construed in its terms”.[88] However, the appellant’s submissions overlook, or do not at least adequately engage with, the legislative provisions that do represent the “correct test” for “the assessment of weekly benefits”, namely, Pt 3 Div 2 of the 1987 Act (“Weekly compensation by way of income support”). This includes s 32A, defining “suitable employment”, s 37(3), regarding the calculation of a weekly compensation payment to a worker who has returned to work for less than 15 hours (or who has not returned to work), Sch 3 cl 8(b) and cl 9(1), defining current weekly earnings and current work capacity, and s 43(1) of the 1987 Act.
[88] Appellant’s submissions, [13], citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28.
In the context of the WCD, by reference to the “precise issues”, s 43(1) identifies which decisions are work capacity decisions. The relevant decisions under s 43(1) are about:
(a)    the appellant’s current work capacity;
(b)    what constitutes suitable employment for the appellant;
(c)    the amount the appellant is able to earn in suitable employment, and
(d)    the amount of the appellant’s pre-injury average weekly earnings (PIAWE) or current weekly earnings.
There is no issue about the WCD being a work capacity decision under s 43(1). The “test in law” then invokes the relevant ingredients of s 43(1) decisions, about:
(a)    the appellant’s current work capacity;
(b)    what constitutes suitable employment for the appellant;
(c)    what the appellant is able to earn in suitable employment, and
(d)    the amount of the appellant’s PIAWE or current weekly earnings.
Schedule 8(b) relevantly defines current weekly earnings as the weekly amount a worker is able to earn in suitable employment. Schedule 3 cl 9(1) relevantly defines current work capacity as an ability to return to work in suitable employment, but with a capacity to earn less than what the worker had the capacity to earn pre-injury; in contrast to a worker having “no current capacity”, within the meaning of cl 9(2).
The parties either agreed and/or there was no issue about the appellant having some current work capacity, limited to 26 hours per week within the meaning of s 43(1)(a). The Member noted this at [92] of the reasons.
There is also no issue about and/or the parties agreed that employment as a secondary school teacher did constitute suitable employment in terms of s 43(1)(b).[89] The Member also noted there was unanimity between the rehabilitation experts that employment as a secondary school teacher did constitute suitable employment for the appellant in terms of s 43(1)(b).
[89] Reasons, [92].
There was also no issue or argument about the insurer’s decision that the appellant’s PIAWE was $1,184.30 per week in terms of s 43(1)(d). This was also recorded by the Member.[90] There is no complaint about or challenge to this figure being accepted, nor to the Member’s reasons including their adequacy with respect to each of the agreements and/or lack of issue by the Member.[91]
[90] Reasons, [93].
[91] Reasons, [92]–[93].
The Member’s determination of what the appellant worker was able to earn in suitable employment in terms of the s 43(1)(c) decision is also largely informed by the way the issues were framed. He noted “there has been no argument that the amount of $1,184.30 is what Mr Philpott would earn teaching for 26 hours per week”, but that the argument was about the unfair “division of work required between face-to-face teaching and preparation for the same”.[92]
[92] Reasons, [93].
I find the clear inference from this passage, and in the context of the way the issues were framed and a fair reading of the decision as a whole, is that the Member found the appellant was able to earn $1,184.30 per week in suitable employment as a secondary school teacher for 26 hours a week in terms of ss 32A, Sch 3 cll 8(b) and 9(2) and s 43(1)(c) of the 1987 Act. This is consistent with there being no argument about or evidence of the appellant having an incapacity for any aspect of (26 hours’) work as a secondary school teacher. The Member specifically noted in this respect that:
“The argument is that the nominated amount does not fairly represent the division of work required between face-to-face teaching and preparation for the same. Mr Philpott pleads that the [SU report] shows that 26 hours of teaching also entails a preparation time of approximately half, and that therefore his assessed ability to earn in that profession should be adjusted to reflect that reality”.[93]
[93] Reasons, [93].
This passage correctly identifies the way the appellant presented the case, and there is no challenge to such identification.
The appellant has specifically identified paragraph [94] of the reasons in arguing that the Member:
“focused on the wrong issue. The issue is not, ultimately, [whether] restitution is an apt term or not. It was intended below, as here, to refer to that common law concept by way of background … The question is what the 1987 Act truly requires”.
To address this argument, it is necessary to consider the reasons at [93] and [94], as follows:
“93. The dispute before me is as to the amount Mr Philpott can earn in the agreed suitable employment. Even then, there has been no argument that the amount of $1,184.30 is what [he] would earn teaching for 26 hours per week. The argument is that the nominated amount does not fairly represent the division of work required between face-to-face teaching and preparation for the same. Mr Philpott pleads that the [SU report] shows that 26 hours of teaching also entails a preparation time of approximately half, and that therefore his assessed ability to earn in that profession should be adjusted to reflect that reality.
94. I reject that interpretation … of s 43(1)(c). There has been no submission that the assessment of $1,184.30 does not accurately reflect the applicable rate. Mr Robison advanced an argument that a proper reading of the … legislation showed an intent by Parliament primarily to achieve restitutio in integrum to injured workers. That has never been the case, as his concessions illustrated. Restitutio in integrum is a maxim appropriate to the Superior Courts”.
The opening words of paragraph [94], “I reject that interpretation … of s 43(1)(c)”, need to be read with the content of paragraph [93] to gain the proper context and meaning. Paragraph [93] of the reasons shows the Member delineating the ultimate issue – as to what the appellant “can earn in agreed suitable employment” – noting there was no argument about the amount of $1,184.30 being the amount which the appellant would earn teaching for 26 hours per week – then noting: “The argument is that the nominated amount does not fairly represent the division of work …” (emphasis added). In this context, he then notes that the appellant relies upon the SU report to show that “26 hours of teaching also entails a preparation time of approximately half, and that therefore his assessed ability to earn in that profession should be adjusted …”.
It is this argument that the Member rejects in the opening sentence of [94] of the reasons. He had already explained why he gave little weight to the SU report.[94] This will be dealt with further below. There appears to be no criticism or challenge in [15] of the appellant’s submissions about these critically important aspects of reasons [93], namely, the first two sentences of paragraph [94].
[94] Reasons, [90]–[91].
The argument in [15] of the appellant’s submissions alleges that the Member “focused on the wrong issue” at paragraph [94] and explains that the issue was not ultimately whether restitution was an apt term or not. The argument starts with an acceptance of there being “no generalised concept of restitution”, and that the 1987 Act “must be construed in its terms”,[95] but goes on to say that: “The legislation is silent on the precise issues in this appeal, namely whether a teacher’s non-classroom work is taken into account or not. Absent specific legislative restriction on common sense, common sense should prevail”.[96] Then it is submitted that while “[t]he question is what the 1987 Act truly requires … the right concept must still be, save where the legislation says otherwise, to compensate a worker in a common sense fashion”.[97]
[95] Appellant’s submissions, [13].
[96] Appellant’s submissions, [14].
[97] Appellant’s submissions, [15].
The premise that the 1987 Act is silent in relation to “the correct test in law for the assessment of weekly benefits” is inapposite as explained at [89]–[90] above. I realise this submission is conflated with the absence of specific reference to whether “a teacher’s non-classroom work is taken into account or not”. But this is specious: the 1987 Act is not “silent” on the point of attack in Ground One – it contains, in Pt 3 Div 2, the relevant legislative machinery constituting the correct test(s) in law for the assessment of weekly benefits.
The appellant’s submissions are also opaque in relation to whether or not, and if so how, the concept of restitution is relied upon. In my opinion, the Member was right to find that the concept of restitution did not apply to injured workers in the context of the workers compensation legislation. He was also right to reject the appellant’s argument that the law of restitution has any application in the presenting circumstances. It has been held that a claim for recovery of overpayments made under the 1987 Act arose under the general law of restitution and unjust enrichment and there is no express power in the 1987 Act which authorised the recovery of the overpayments, and that such claims did not involve a matter arising under the 1987 Act.[98] Section 107 of the 1987 Act identified the jurisdictional parameters of the 1987 Act at the time of Melesco.
[98] Melesco Manufacturing Pty Ltd v Thompson (1996) 40 NSWLR 525 (Melesco), 531E–533D; 541D.
The jurisdictional provision for present purposes is s 105 of the 1998 Act, which relevantly provides “(1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act”. Section 107 at the time of Melesco essentially mirrors s 105 of the 1998 Act as it applies to the appellant’s case.
There is no express power, relevant to the present circumstances, in the 1987 Act to otherwise authorise the application of restitutionary principles. The present case does not relate to recovery of overpayments of compensation. However, a fortiori, the same principle applies to seeking primary relief under the 1987 Act, that is, the circumstances do not appear to relate to restitutionary principles in any event. It is unnecessary to otherwise explore this question in any further depth given that neither party has provided any relevant authority in support of their respective broad positions.

For all the reasons given above and taking the authorities and principles discussed by the Court of Appeal in Melesco into account, it is my opinion that any claim in the appellant’s case on the basis of restitution does not owe its existence to the 1987 Act. Again, it is not totally clear whether such claim is made. If it has been, it has been done so ambivalently and without providing any relevant or specific authority.
Given the submission[99] for the appellant that the Member focused on the wrong issue in relation to restitution, it is noted that the immediately preceding discussion in that regard should not be seen as being wholly dispositive. It has still been necessary for me, as it was for the Member, to otherwise deal with the appellant’s submissions. I accept the submissions for the respondent[100] in this regard. If [15] of the appellant’s submissions implies the Member misapprehended the issue as it was put below (rather than what “was intended below”), I disagree. He correctly recorded the appellant’s arguments (at reasons [61]–[63] and compared the appellant’s submissions before the Member, at [8]) in relation to restitution. It has not been suggested otherwise on appeal.
[99] Appellant’s submissions, [15].
[100] Respondent’s submissions, [15(a)], [16].
It can also be clearly seen, contrary to [15] of the appellant’s submissions, that the Member was not “focused on the wrong issue” in relation to restitution; and he did not approach his decision in a way that “the worker wins or loses the argument on this basis”. He approached it by satisfying himself that the relevant ingredients (including s 32A, the current work capacity, the current weekly earnings and the PIAWE) of s 43(1)(a)–(d) of the 1987 Act were established.
Prior to dismissing, in the last three sentences of paragraph [94], any argument relating to restitution, he had already found or noted (at reasons [92]–[93] and the first two sentences of reasons [94]) there was agreement, or at least no issue, about there being 26 hours per week current work capacity, that work as a secondary school teacher constituted suitable employment, and that “there had been no argument that the amount of $1,184.30 is what Mr Philpott would earn teaching 26 hours per week”. This is a brief disposition of the ultimate issue in the case. It would have been preferable if the Member had more clearly stated that the assessment of $1,134.30 (sic, $1,184.30) accurately reflected what the appellant was able to earn in suitable employment instead of or as well as there being no argument such figure did “not accurately reflect the applicable rate”. However, the reasons need to be read wholly and fairly. The nature of the case, in particular the limited ultimate issue, needs to be considered in that regard, as do the terms of s 294(2) of the 1998 Act, which provide that the Commission is to attach to its certificate of determination a “brief statement of its reasons”.[101]
[101] Heggie, [166].
Further, the context makes it clear enough that the Member was dealing with the terms of s 43(1)(c). This reference is in the immediately preceding sentence; and in the previous paragraph the Member also referred to there being “no argument the amount of $1,184.30 is what Mr Philpott would earn teaching for 26 hours per week. The argument is that the nominated amount does not fairly represent the division of work …”.
In any event, there is no challenge to the Member’s reasons, including as to their adequacy.
The appellant’s submission is that the 1987 Act does not deal with the issue of whether or not the respondent took into account the alleged unpaid work which the appellant performed in non-classroom duties, and this creates a vacuum which should be filled by the application of common sense, and this involves looking at “what the work in question actually involves – not just the hours for which remuneration is made by the employer”.[102] The appellant then submits “[f]or this reason, the learned Member misdirected himself as to the resolution of the matter, including as to the following evidence”.[103]
[102] Appellant’s submissions, [13].
[103] Appellant’s submissions, [14].
The five categories of evidence are then set out as noted in [14] of the appellant’s submissions. There is no detailing of what parts of such categories are involved or how the said misdirection infected the decision “including as to the following evidence”. But it seems to be framed in a way to accept that the capacity of this evidence to influence the disposition of Ground One may be dependent on the result of the issue about whether the correct test in law for the assessment of weekly benefits was applied. I nevertheless will give these opinions about such evidence.
Firstly, as to the appellant’s statements,[104] the Member recorded and took into account such material in detail – particularly such material relevant to the non-classroom duties issue.
[104] Referred to in the appellant’s submissions, [14(a) and (b)] and noted in reasons, [27]–[28] and [67].
It is not clear how and why the appellant submits that the email correspondence regarding job seeking[105] is pertinent to Ground One having regard to the way it has been argued. In any event, I agree with the submission for the respondent[106] in this respect. The emails do not necessarily assist the appellant’s case. They show how his experience and skills as a teacher could be attractive to a potential employer. As to the “judicial notice”,[107] the Member found it “axiomatic” that a teacher would need to prepare classes.[108] I respectfully agree with that finding.
[105] Appellant’s submissions, [14(c)], ARD, p 399.
[106] Respondent’s submissions, [15(d)].
[107] Appellant’s submissions, [14(e)].
[108] Reasons, [90].
This returns the discussion to the alleged “unpaid work”. It is this aspect of the “non-classroom duties” that the appellant is really saying was not taken into account. If that understanding is incorrect, I have already rejected the submission that the Member did not take into account a teacher’s out-of-class duties per se (see [90] above).
Thus, at least a substantial part of the underlying premise of the appellant’s argument must be that the “non-classroom” aspect of the appellant’s duties was work the appellant was not paid for.[109] But he has not, at least clearly, pointed to any evidence in support of this premise – except as to the SU report – which includes the School Day Fact Sheet.[110]
[109] Appellant’s submissions on appeal, [13] ‘not just the hours for which remuneration is made’; reasons [57]; appellant’s submissions before the Member, [4].
[110] ARD, pp 463, 467–471.
The respondent accepts[111] that a full-time teacher is paid for 35 hours’ work but is only allocated to be on face-to-face duties for part (20 hours 40 minutes) of that time, based on the School Day Fact Sheet.[112] It then makes the point that the appellant can seek employment of 26 hours per week and be paid for 26 hours per week but would not be expected to be face-to-face teaching for all of that time, and that the apportionment of face-to-face teaching time would be a matter for the employer. I accept the respondent’s submissions in this respect – to the extent that it would be likely that this document shows the appellant would only be required to be doing face-to-face teaching for about 60% of the time – calculated pro rata on the information in the School Day Fact Sheet. However, the hours referred to in that document clearly refer to a teacher working full-time. The present analysis is on the basis of 26 hours per week.
[111] Respondent’s submissions, [15].
[112] ARD, p 468.
The other reason I find this to be a likely scenario is that the School Day Fact Sheet specifically states that these figures relate to “provisions for the allocation of face to face teaching for teachers” and are “found in Clause 16 Allocation of Duties in High Schools in the school teachers award”.[113] Neither party referred to the detail of that award. But nor has either of them taken issue with this information being part of the award for school teachers and the departmental policy. In any event, there appears to be little issue between the parties as to this aspect of the School Day Fact Sheet. The respondent “accepts the appellant’s evidence that a full-time teacher is paid for 35 hours per week, but is only allocated to be on face-to-face duties for part of that time (20 hrs 40 mins)”.[114] This is consistent with the appellant’s evidence.[115]
[113] ARD, p 468.
[114] Respondent’s submissions, [15].
[115] For example ARD, pp 29, 112.
The School Day Fact Sheet also clearly deals with the “Hours of Duty of Teachers”,[116] and notes that it has been a long-standing requirement of the Department that teachers are required to be on duty at school for periods of time that fall outside the start and finish times of school. The sheet immediately goes on to say the “legal basis for that requirement” is contained in a determination made under the Teaching Service Act 1980 (see [40]–[43] above). Again, neither party has disputed that information, although the appellant takes issue with operation of the work practices related to this information.
[116] ARD, p 467.
Section 43 of the 2020 Act provides that proceedings are to be conducted in the Commission with as little formality and technicality as proper consideration of the matter permits, that the Commission is not bound by the rules of evidence and may inform itself in the manner it thinks appropriate, acting in accordance with equity, good conscience and the substantial merits of the case. In Onesteel Reinforcing Pty Ltd v Sutton[117] Allsop P (McColl and Basten JJA agreeing) was dealing with the now repealed s 354 of the 1998 Act. Section 43 of the 2020 Act is in essentially the same terms as s 354 of the 1998 Act, and his Honour’s following comments are equally applicable to s 43:
“The relationship between rules of evidence and hearings by the Commission is made clear by [s 43 of the 2020 Act]. The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material”.[118]
[117] [2012] NSWCA 282 (Onesteel).
[118] Onesteel, [2].
I have taken the relevant principles as summarised in OneSteel into account and accept the information in the School Day Fact Sheet discussed in [40]–[43] and [122]–[124] above. In my opinion, the conclusions in that information are satisfactory in the probative sense and should not be reasonably seen to be capricious, arbitrary or without foundational material – for the reason that the basis of such information is drawn from “Clause 16 Allocation of Duties in High Schools in the school teachers award” and a “Determination … under the [Teaching Service Act]”, and that neither party has disputed that, or the accuracy of any information in the sheet (excepting perhaps the operation of the hours of duty aspect).
These principles also need to be taken into account in relation to the appellant’s reliance on the SU report otherwise. The Member dealt with such reliance essentially at reasons [90]–[91]. He stated that it was “a helpful analysis of the way in which teachers employed their time, and it is axiomatic that a teacher would need preparation time in order to present to his/her classes, not to mention the additional work of marking papers and other functions not associated with the classroom teaching itself”. However, he said he would “approach a report such as the [SU report] with some circumspection as it is impossible to distil all the facts and circumstances from the graphs and appendixes that accompanied that report. I appreciate the arguments advanced as to the interpretation of the report, but this jurisdiction is not the appropriate [forum] to debate its virtues or shortcomings”.
In my opinion, the Member did not err in refusing to accept the appellant’s interpretation of the report, or to give it anything but the limited weight he identified (in reasons [90]–[91]). With the appellant submitting that the “whole purpose” of the SU report was “to highlight the unpaid work which teachers do”,[119] the Member was right to find the Commission was unable, clearly inferring because it did not have jurisdiction, “to make any finding as to the proper rate of pay to be paid to the State’s teachers beyond that mandated”. He was also right to state that “[t]he Commission can only apply the rates of pay that exist to cover all the duties of teachers, whether in class or not. I was not referred to any provision of any award that made such a distinction”.
[119] Appellant’s submissions before the Member [17]; reasons [72]–[73].
If the Member had accepted the appellant’s submissions before the Member in this respect, he would have fallen into error. He was essentially being asked to calculate the appellant’s ability to earn in suitable employment on a premise that a current work capacity reflecting 26 hours per week in suitable employment means approximately double that amount of hours – on the basis of an acceptance of the SU report, and the appellant’s extrapolation of selected material in that report, to reach the conclusion that “the report suggest(s) that an average of 2.16 hours of preparation work and administration work is being done by NSW teachers”. His submission to the Member was also that a “fair synthesis” of the material was that “if the [appellant] had a capacity to work for 26 hours per week, then he had a capacity for face-to-face teaching of about half that and the award in his favour should reflect the same”.[120] Importantly, the Member was not asked by the appellant, at least with any clarity, to conduct his assessment about the amount the appellant was able to earn in suitable employment on the basis of the appellant’s current work capacity and/or current weekly earnings (Sch 3 cl 8 or cl 9) or having regard to the definition of suitable employment in s 32A.
[120] Reasons, [68]–[69].
The respondent disputed that the SU report was of assistance to the Commission. The Member noted the respondent’s submissions included “the fact that it concerned the position of a full-time teacher and took no account that casual teaching would be associated with lower administration duties and higher wages … [The respondent] also noted that Mr Smith’s report did not nominate casual teaching rates … [and that] only 11% of respondents to the survey … were part-time employees.”[121]
[121] Reasons, [41]–[42].
The Member, rightly in my opinion, found it was not appropriate “to distil all the facts and circumstances from the graphs and appendixes that accompanied that report”. It would have been surprising if it were otherwise, particularly in circumstances where neither party took him through it in any detail.
The Member noted that the appellant’s conclusion about the report was a “theme … taken up by Mr Smith”.[122] In my opinion, Mr Smith has not satisfactorily identified how and why he has arrived at the conclusion that the appellant “has the capacity to work 26 hours per week divided by 13.06 hours per day, equating to approximately two days per week of paid employment”. While it is not totally clear, it seems he may have conducted his analysis on the basis of what he was told by the Teachers Federation and/or Independent Education Union.[123] The evidence in this regard from both Mr Smith and the appellant is sufficiently problematical to warrant a view that if such evidence would be accepted, it would involve coming to a conclusion that would be seen to be capricious, arbitrary or without foundational material as discussed in OneSteel.
[122] Reasons, [29]–[32].
[123] ARD, p 101.
For those reasons, the Member did not err in not accepting that evidence. There is no challenge to or complaint about his reasoning including the adequacy of it.
Thus, the Member took into account the SU report and his summary of the appellant’s submissions before the Member in this respect[124] is fulsome. The appellant’s submissions on the appeal provide no detail of this report, simply noting that it “sets out analysis of what teachers are required to do, including unpaid work” and cites page 403 of the ARD – the front cover of a 66-page report. The appellant’s submissions before the Member and on the appeal do refer[125] to the appellant’s statement about such detail in the SU report and the Member noted all such matters. In particular, he noted, again in a fulsome way, the appellant’s own views about the utility of the School Day Fact Sheet, stating “that a full-time secondary teacher’s maximum face-to-face load teaching is 20 hours and 40 minutes a week, however the additional duties and the time these duties take … are clearly hours of work which should be included in the decision since I would be unable to fulfil any teaching role without doing the work described in each of the components”.[126]
[124] Reasons, [68]–[73]; [90]–[91].
[125] Reasons, [67]; appellant’s submissions, [14(a)].
[126] Reasons, [28].
I have read the SU report. It refers[127] to various administrative and the like burdens that have been imposed on teachers in recent years and also notes the extra hours of work involved for teachers and the need for additional assistance, support and resources into the future (from the time of the 2018 report). Concern is also expressed about how the high workload suffered by the teachers – by having to provide evidence of compliance with policy requirements and new administrative demands – is hindering and obstructing teachers and students’ learning. But I am unable to find clear or direct reference in this report to any concerns or recommendations about or relating to teachers being unpaid.
[127] ARD, p 408.
The report also notes[128] the then NSW Education Minister, Rob Stokes, announcing that he shared the Teachers Federation’s concerns in relation to increasing administrative burdens on teachers encroaching on their core role in educating children. The report shows he established a working party with the Teachers Federation and various other interested groups and that this working party had commenced attempts to redress these concerns in about July 2018, and met in November and December 2018 with further meetings scheduled for 2019. The relevant analysis of the appellant’s ability to earn in suitable employment was in 2021. There is no evidence or submission about any up-to-date information since the date of the SU report in 2018.
[128] ARD, p 407.
These comments about the report are not to the point of showing that I have come to any conclusion about what it means in terms of the limited issue(s) in this case. They are rather for the purpose of analysing whether the Member has erred in not giving the report the weight the appellant says should have been given to it.
After considering the evidence, including the report itself and submissions for each party, I find no such error. This assumes the appellant has indeed made a submission that the Member erred in his treatment of the SU report. The appellant’s submission at [14] appears to read that he “misdirected himself as to the resolution of the matter, including as to the following evidence”; so, the argument in relation to the SU report appears to derive from the primary argument – whether the member “misdirected himself as to the correct test in law for the assessment of weekly benefits”. Nevertheless, for those reasons, the Member did not err in the very limited way he utilised the report.
At least in terms of its capacity to be utilised in the way the appellant has submitted, I do not think the material in the SU report is satisfactory in the probative sense and the passage from Onesteel recited above is apposite – in the opposite sense to the way it has been applied in relation to the School Day Fact Sheet evidence. This is not a criticism of the SU report itself or its conclusions. It is rather about how it has been sought to be used by the appellant, that is, by drawing a conclusion, from a report comprising over 60 pages with various statistical information, that the appellant’s ability to earn, working 26 hours per week as a teacher, needs to also take into account about the same amount of unpaid non-classroom duties that he would need to perform in order to enjoy the undisputed rate of pay of $45.55 per hour. This is in circumstances where neither the evidence (including from the appellant and Mr Smith, for example pp 29 and 118 of the ARD), or the submissions, identify what part(s) of the report has the conclusion been drawn from, or how the report can at least necessarily be applied to the appellant’s situation which does not involve full-time employment.

But this was only one of the concerns the Member had about the SU report. The other was about its inability to influence the inability of the Commission to make findings as to the proper rate of pay for teachers. The Member did not err in so finding in either of these respects either. The terms of the appellant’s submissions before the Member and on the appeal clearly relate, at least mainly, to the “unpaid” hours. I appreciate that the appellant’s argument has not been specifically framed as a claim for unpaid wages, with the point rather being that teachers are only paid for about half of the time they put into work they need to do, and therefore when one is analysing the question of what he is able to earn in suitable employment, one should approximately double the amount he is able to earn in suitable employment.
But there is a logical fallacy in the appellant’s argument: that is the “dichotomy” between face-to-face teaching and out-of-class work.[129] The Member was “unable to accede to the logic that underpinned Mr Philpott’s submissions regarding the dichotomy between preparation for class and teaching in class itself”.[130] In my opinion, he was right to find this.
[129] Reasons, [68].
[130] Reasons, [89].
The premise put for the appellant in this respect was the separation between the face-to-face teaching and the non-classroom duties. This premise, and the appellant’s argument in this respect, ignores or overlooks the evidence. It is a distraction. The School Day Fact Sheet makes it clear that the hours teachers are required to work involve both face-to-face teaching and non-classroom duties. Also, Dr Man certified the appellant in 2021 as being fit to work 26 hours per week, noting “this includes class [preparation] time, marking time at home etc”. Mr Smith checked this by contacting Dr Man and he noted that she “further confirmed that Mr Philpott’s current capacity of 26 hours per week if he was to pursue a teaching role, will include preparation time for classes etc”[131] (emphasis added). Mr Smith also noted that when he contacted both the Teachers Federation and the Independent Education Union, “they confirmed” part-time and casual teachers are employed at either 7 or 3.5 hours per day, with a 7-hour working day “includ[ing] face to face teaching and paid class preparation time”[132] (emphasis added). Mr Smith then went on to further note that “[b]oth unions advised that teachers work additional hours of unpaid preparation time outside of work hours and referenced [the School Day Fact Sheet and SU report]” (emphasis added).
[131] ARD, p 90.
[132] ARD, p 90.
These passages confirm that there is no error in the Member coming to the conclusion that the appellant’s premise underpinning the dichotomy between face-to-face teaching and non-classroom work was illogical.[133] They also show that he was right to characterise the appellant’s submissions as essentially seeking a finding as to the proper rate of pay that the appellant should have been paid as a teacher.
[133] Reasons, [89].
The Member made his determination on the basis that the appellant’s current work capacity for 26 hours included non-classroom work. He dealt with these matters briefly, but that is not inconsistent with the way in which the proceedings were conducted before him. In any event, there is no challenge to or complaint about the reasoning or its adequacy.
In the result, the relevant jurisdiction of the Commission was competently exercised to confirm the WCD – that the appellant had the ability to earn $1,184.30 per week in suitable employment as a secondary school teacher, 26 hours per week.[134] The reference to 26 hours per week means 26 hours per week, not double (albeit approximately) those hours. In other words, if the appellant is in fact required to work double those hours, unpaid, in order to earn $1,184.30 per week, he may wish to seek a remedy. But any such remedy needs to be pleaded in a court or commission which is empowered with such jurisdiction.
[134] ARD, p 60.
I am mindful of the submission that in construing the 1987 Act beneficially in the case of any doubt, any such “doubt should favour a worker’s construction”.[135] In ADCO Constructions Pty Ltd v Goudappel[136] the plurality said:
“It can be accepted … that the [1987 Act’s] remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the [1987 Act] as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified.”
[135] Appellant’s submissions, [16].
[136] [2014] HCA 18; 254 CLR 1, [29] (footnote omitted).
Having regard to this passage, I accept the appellant’s submission from the point of view of construing the act “as a whole”. However, the submission does not identify the provision or amendment to a provision sought to be construed beneficially in his favour. There is only this broad reference to “the question [being] what the 1987 Act truly requires. If restitutio in integrum is the wrong concept, then the right concept must still be, save where the legislation says otherwise, to compensate a worker in a common sense fashion”.[137] There is also the reference to “the legislation [being] silent on the precise issues in this appeal, namely whether a teacher’s non-classroom work is taken into account or not”.[138] None of this adequately identifies what provision(s) should be the subject of a beneficial construction.
[137] Appellant’s submissions, [15].
[138] Appellant’s submissions, [14].
For all these reasons, Ground One fails.

Ground Two

The submission in support of Ground Two puts that “[a]s the misdirection in law for ground 1 relates to the approach taken to the evidence …, in the alternative, … there is an error on the facts as well”.[139] There is no clarity as to what is meant by the claim that the Member “misconstrued the nature of the appellant’s work duties”, nor is there any detailed identification of what any error on the facts is, or how any such error arose. In these circumstances, the disposition of Ground One also covers and disposes of Ground Two, such as it is put, a fortiori. In this regard, I note the comments of Basten JA in Hill, (see [62] above) and Sackville AJA in Heggie (at [63] above) and the analysis of the evidence to the extent it was identified in the appellant’s submissions.[140]
[139] Appellant’s submissions, [17].
[140] See [116]–[119] and [122]–[142] above.
For those reasons, Ground Two also fails.

DECISION

By consent, the second order in the Certificate of Determination dated 4 March 2022 is amended by replacing “27 September 2021” with “21 September 2021”.
The Certificate of Determination dated 4 March 2022 is confirmed.

Michael Perry
ACTING DEPUTY PRESIDENT

21 April 2023