Qantas Airways Limited v Da Ros - [2010] HCATrans 257

[2010] HCATrans 257

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S126 of 2010

B e t w e e n -
QANTAS AIRWAYS LIMITED
Applicant
and
SAVERIO DA ROS
Respondent
Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 OCTOBER 2010, AT 10.38 AM

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR L.G. MORGAN, for the applicant. (instructed by Moray & Agnew Solicitors)

MR B.T. TOOMEY, QC: May it please your Honours, I appear with my learned friend, MR B.G. McMANAMEY, for the respondent. (instructed by Turner Freeman Lawyers)

HAYNE J: Yes, Mr Jackson.

MR JACKSON: Your Honours, the application concerns the terms of section 9A(1) of the Workers Compensation Act 1987 (NSW). Your Honours, may I just say something very briefly about the legislative scheme. In order to satisfy workers compensation the respondent had to satisfy two requirements. The first was that it was necessary to show that the injury arose out of, or in the course of, his employment. Your Honours will see that from section 9, which is on the second page of the authorities book, and you will see that in relation to section 9(1) there is “injury” referred to and then on the preceding page, section 4(a), “injury” means, relevantly:

personal injury arising out of or in the course of employment –

That was the first requirement. The second requirement, your Honours, was that it was necessary to show, because of section 9A(1), which is at page 3, that the employment was a substantial contributing factor to the injury. Your Honours, section 9A(3) makes it apparent that the second test is not satisfied, or necessarily satisfied, by the fact that the injury was suffered in the course of, or arose out of, the employment.

I do not think I need to take your Honours at all to the facts of the matter which are very simple and your Honours will be aware of them, but the Court of Appeal’s reasoning - and I will take your Honours to the three relevant passages in just a moment - appears to have treated the requirements of section 9A(1) as necessarily being satisfied because the injury occurred in the course of the respondent’s employment.

Could I take your Honours to the first of those passages. It is at page 39 of the application book in paragraph 21 of the Court of Appeal’s reasoning. You will see, your Honours, at about the seventh line in that paragraph, it said:

The appellant was there, on his bicycle, “in the course of his employment”. That finding having been made, it would appear to follow that the employment concerned was a substantial contributing factor.

Then in paragraph 24, page 40 in the fourth line, it said:

Because it –

and the “it” is what is referred to in the preceding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] HCATrans 257
Decision Date

CaseChat Overview and Summary

Qantas Airways Limited (Qantas) appealed to the High Court of Australia against a decision of the Full Federal Court which had affirmed a judgment in favour of Mr Da Ros. The dispute concerned the interpretation of clause 17.3 of the Qantas Airways Limited Enterprise Agreement 2004 (the EA), which provided for the payment of a redundancy allowance to employees whose positions were made redundant. Mr Da Ros had been employed by Qantas for 20 years and was made redundant in 2006. He was paid a redundancy allowance calculated by reference to his years of service, but he contended that the allowance should have been calculated by reference to his base salary plus a component of his annual leave loading.

The central legal issue before the High Court was whether the phrase "base salary" in clause 17.3 of the EA included annual leave loading for the purpose of calculating the redundancy allowance. Qantas argued that "base salary" referred only to the fixed rate of pay for the position, excluding any additional entitlements such as leave loading. Mr Da Ros contended that "base salary" was intended to encompass all components of his regular remuneration, including the annual leave loading, which was a predictable and recurring component of his earnings.

The High Court, comprising Hayne and Crennan JJ, allowed the appeal. Their Honours reasoned that the ordinary meaning of "base salary" in the context of an enterprise agreement, absent any express exclusion, should be interpreted to include all components of remuneration that are regularly and predictably paid to an employee. They found that the annual leave loading, being a fixed percentage of ordinary pay paid annually, was such a component. Therefore, the Court concluded that the Federal Court had erred in its interpretation of clause 17.3, and that Mr Da Ros's redundancy allowance should not have included the annual leave loading in its calculation.

The High Court ordered that the appeal be allowed and the judgment of the Full Federal Court be set aside. The matter was remitted to the Federal Court for further orders consistent with the High Court's judgment.

Orders