Raisebore Pty Limited v Brendyn Wilson

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

CITATION:	Raisebore Pty Limited v Brendyn Wilson [2003] NSWWCCPD 40
APPELLANT:	Raisebore Pty Limited
RESPONDENT:	Brendyn David Wilson
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NO:	WCC 2095-2002
DATE OF DECISION:	19 December, 2003
PRESIDENTIAL MEMBER:	Deputy President Gary Byron
DECISION UNDER APPEAL:	Application for Leave to appeal against a decision of an Arbitrator
DATE OF DECISION UNDER APPEAL:	15 April 2003
HEARING:	Decision made on the papers
REPRESENTATION:	Appellant: Stella Tarpouka, Goldbergs Lawyers
Respondent: Paul Keady, Paul Keady & Associates Solicitors
ORDERS MADE ON APPEAL:	The decision of the Arbitrator is confirmed except that order number 2 is revoked and the following order is made in lieu thereof: The Appellant Employer is to pay to the Respondent Worker, pursuant to section 38 of the 1987 Act, the sum of $1095.36 per week, subject to the provisions of section 35 of that Act, during such periods where the Respondent Worker was partially incapacitated, but the Respondent Employer failed to provide suitable employment. The Appellant Employer is to pay the Respondent Worker’s costs of this appeal, as agreed or assessed.

THE APPEAL

On 12 May, 2003 Raisebore Pty Limited (the Respondent in the original proceedings and the ‘Appellant Employer’ in this appeal), lodged an ‘Application for Appeal Against a Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’), against a decision dated 15 April, 2003. The Respondent to the appeal is Brendyn David Wilson, (the Applicant in the original proceedings and the ‘Respondent Worker’ in this Appeal). The Insurer is Allianz Australia Workers Compensation (NSW) Limited, (‘the Insurer’).

THE DECISION UNDER REVIEW

The Certificate of Determination dated 15 April, 2003 sets out the decision of the Arbitrator as follows:
1)    Respondent to pay the Applicant, pursuant to section 36 of the Act, the sum of $1259.20 per week for periods of total incapacity on and from 22 February 2002 for an aggregate up to a period of 26 weeks but subject to the incremental adjustments in the statutory limits imposed by s35 of the Act.
2)    Respondent to pay the Applicant, pursuant to Section 38 of the Act, the sum of $1281.30 per week (subject to the incremental adjustments in the statutory rate prescribed in s35 of the Act) during such periods where the Applicant was partially incapacitated but the Respondent failed to provide suitable employment.
3)    Respondent to pay the Applicant, pursuant to Section 40 of the Act, during such period where the Applicant was partially incapacitated but employed by the Respondent on reduced hours thus reflecting a reduction of his weekly earnings, the difference between his probable earnings of $1369.20 per week and his actual earnings during such weeks but subject to the appropriate statutory rate for a worker with one dependent child.
4)    Respondent to pay the Applicant the sum of $1299.70 from 12 December 2002 (noting that the employer has refused to provide suitable duties) pursuant to Section 38(3)(b), and at the expiration of the period of 52 weeks at the maximum statutory rate as provided for in Section 38(3)(b) for a worker with one dependent child, Carly born 12 June 1985.
5)    Respondent to pay interest on arrears of weekly payments at the rate of 3% per annum.
6)    Respondent to pay the Applicant’s costs as agreed or assessed.
The references to ‘the Act’ in the Certificate of Determination are references to the Workers Compensation Act 1987 (‘the 1987 Act’).
According to the Arbitrator’s Statement of Reasons for Decision (‘reasons’), the issues in dispute before the Arbitrator were:
(a)   what are the weekly amounts which the Applicant would be entitled to be paid during periods of total or partial incapacity?
(b)   what is the effect of an Australian Workplace Agreement on the determination of the hourly rates of pay?
(c)     do the circumstances concerning some of the Applicant’s annual leave justify a re-credit of the leave taken?

The Arbitrator dealt with the matter, on the papers, pursuant to section 354 (6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

The evidence that was before the Arbitrator and that was taken into account in making his determination, is listed in paragraph 13 of the Arbitrator’s Statement of Reasons for Decision, as follows:

For the Applicant

The Applicant provided a Summary of his circumstances with his ‘Application to Resolve a Dispute’. I reproduce the Summary as it highlights the issues before the Commission:

SUMMARY

The Applicant commenced employment with the Respondent, Raisebore Pty Limited of 246 Brighton Road, Somerton Park, SA, 5044 in approximately October 2000. He was generally required to work 14 twelve hour shifts then with 7 days off ie a cycle of two weeks on, one week off giving him an average work week of 56 hours.
Initially he was paid at the rate of $22.50 per hour. Subsequently that amount was increased with a promotion to $24.45 per hour (see letter from Raisebore Pty Limited dated 31 January 2001).
The Applicant continued to work for the Respondent until on 22 February 2002, whilst employed by the Respondent at the CSA Mine, Cobar, the Applicant sustained an injury to his back which has been diagnosed as an L4/5 disc prolapse with sciatic radiation. The Applicant reported the accident and claimed compensation.
The Applicant’s claim for compensation has been accepted by the Respondent’s Insurer, Allianz but there is a dispute concerning the proper rate for the calculation of the claim.
In correspondence dated 29 May 2002 Allianz advised the worker that his base rate as advised by the employer is $564.00 per week. The worker disputed that and has had numerous telephone conferences with Allianz and also with Workcover [sic] to try and resolve the dispute.
So far as the worker is aware the weekly amount is still in dispute.
The Applicant’s post accident history for the purposes of calculation is as follows:-
1.Date of accident 22 February 2002 – off work up to and including 1 March, 2002.
2.2 March 2002 – return to work – suitable duties – worked 2 March 2002, 3 March 2002 and 9 hours on 4 March 2002.
3.Off work balance of 4 March 2002 to 12 March 2002 inclusive.
4.13 March 2002 – return to restricted/light duties in the workshop until 27 March 2002.
5.Restricted duties 27 March 2002 to the 10 April 2002 – certified by Dr Gun.
6.11 April 2002 and 12 April 2002 – nerve block procedure – St Andrew’s Hospital Adelaide – off work.
7.13 April 2002 and 14 April 2002 – off work.
8.15 April 2002 to 17 April 2002 – restricted duties – Respondent’s workshop.
9.18 April 2002 off work.
10.19 April 2002 – paid annual leave to 1 May 2002 inclusive.
11.Off work balance of 4 March 2002 to 12 March 2002 inclusive.
12.13 March 2002 – return to restricted/light duties in the workshop until 27 March 2002
13.Restricted duties 27 March 2002 to the 10 April 2002 – certified by Dr Gun.
14.11 April 2002 and 12 April 2002 – nerve block procedure – St. Andrew’s Hospital Adelaide – off work.
15.13 April 2002 and 14 April 2002 – off work.
16.15 April 2002 to 17 April 2002 – restricted duties – Respondent’s workshop.
17.18 April 2002 off work.
18.19 April 2002 – paid annual leave to 1 May 2002 inclusive.
19.2 May 2002 – advised by Mr Dave Hunt for Respondent – no light work available.
20.2 May 2002 – 6 May inclusive – paid annual leave.
21.7 May 2002 to 30 June 2002 – certified unfit – Dr Osti.
22.Note – spinal surgery 14 May 2002 performed Dr Osti.
23.1 July 2002 to date and continuing – certified fit for suitable duties – suitable duties refused by Mr Hunt for the Respondent – Applicant advised no suitable duties available.

[NOTE: events 11 to 18 inclusive, are the same events that are listed in 3 to 10 inclusive].
The Applicant’s claim accordingly is that he should be paid at the appropriate hourly rate of $24.45 = $1,369.20 per week for all periods off work from 22 February 2002, including adjustments when performing light/restricted duties and including re-crediting of annual leave.
The 26 weeks expire on the 21 August 2002 and thereafter the Applicant claims that he is entitled to a continuing payment pursuant to Section 38 as he has undergone rehabilitation and return to work programs and is fit for selected duties which are refused by his employer.
For the Respondent
The ‘Respondents Reply to Application for Dispute Resolution’ contained a number of documents the Respondent intends to rely upon, including:
(a)A statement of Dave Hunter, the employer’s OH&S Manager.
(b)A fax correspondence from the Respondent dated 25 September 2002 to the Applicant’s Solicitor setting out relevant information from the Australian Workplace Agreement (the ‘AWA’) Number H 30257995 signed by the Applicant on 5 October 2000.
(c)A copy of the signed AWA with an Approval Notice issued by the Office of the Employment Advocate dated 7 June 2001.
(d)A fax correspondence from the Respondent employer to the Applicant’s solicitor dated 25 September 2002 setting out a summary of wage payments from the date of injury to 31 August 2002.

(e) Letter from the Respondent’s solicitor to Applicant’s solicitor dated 25 September 2002.

At paragraph 14 of his Statement of Reasons for Decision, the Arbitrator stated that as a result of the directions made at the first two teleconferences the Commission received approximately 200 pages of documents in support of the respective cases. He listed the following:

From the Applicant

·Letter dated 6 December 2002 from Applicant’s solicitor enclosing affidavits
·Letter dated 20 December 2002 enclosing Applicant’s submissions
·Letter dated 11 December 2002 from Applicant’s solicitor enclosing Applicant’s supplementary Affidavit sworn 10 December 2002
·Letter from Applicant’s solicitor dated 13 January 2002 correcting inaccuracies in the Applicant’s submissions

From the Respondent
·     Letter dated 28 November 2002 to WCC enclosing schedule drafted in order to quantify the Applicant’s wage loss
·     Letter from the Respondent’s solicitor to WCC dated 28 November 2002 enclosing further amended statement of Dave Hunter (unsigned, undated, not witnessed) [note: signed dated witnessed statement provided on 3 December 2002]
·     Letter from Respondent’s solicitor dated 12 December 2002 enclosing Respondent’s submissions (including a number of annexures)

THE ISSUES IN DISPUTE

The issues in dispute in the appeal may be summarised as follows:
·Whether the Arbitrator erred in determining the Respondent Worker’s current weekly wage rate under section 42 of the 1987 Act and the weekly payment pursuant to section 36 of that Act.
·Whether the Arbitrator erred in determining the weekly wage rate for the purpose of making an award of compensation pursuant to section 38 of the 1987 Act, and whether he has misconstrued that section and applied the wrong rate.
·Whether the Arbitrator, in the determination of weekly payments under section 40 of the 1987 Act, has erred in the calculation of average weekly earnings as defined in section 42(8) of that Act.

JURISDICTION TO HEAR THE APPEAL

Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act:
352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The threshold requirements prescribed in section 352(2) of the 1998 Act are satisfied as the amount of compensation on appeal is both at least $5000 and at least 20% of the amount awarded in the decision appealed against. The appeal was lodged within the statutory time limit in section 352(4) of that Act. The Respondent Worker raised no objections to the grant of leave to appeal.
Leave to appeal was granted on 27 August, 2003.

ON THE PAPERS REVIEW

Having regard to the President’s Practice Direction numbers 1 and 6 issued on 1 July 2003, the comprehensive submissions that have been made by both parties and the documents that are before me, I am satisfied that I have sufficient information to proceed “on the papers”, without holding any conference or formal hearing, pursuant to section 354(6) of the 1998 Act. Accordingly, on 27 August, 2003, I directed that the appeal was to be determined on the papers. The Appellant Employer consented to the matter proceeding on the papers and the Respondent Worker similarly agreed, provided that leave for the Appellant Employer to produce new evidence was refused.
For the reasons outlined below, I refused leave on 27 August, 2003, for the Appellant Employer to submit new evidence in this appeal, being the ‘Statement of Dave Hunter’ dated 12 May, 2003.

APPLICATION TO ADMIT NEW EVIDENCE

The Appellant Employer has sought leave to admit new evidence in the form of a statement by Mr Dave Hunter, dated 12 May 2003. The Appellant submits that the statement is “now required in order to clarify the Respondent’s policies in relation to payment of the base, hourly and bonus rate” and “should be admitted in order to assist the Commission in coming to its decision and having a full understanding of the Respondent’s position.” The Respondent Worker has objected to the admission of Mr Hunter’s statement on the basis that no explanation has been offered to show why this evidence was not available in the proceedings before the Arbitrator. Moreover, it is claimed that the Respondent Worker will be prejudiced if it is admitted. The Respondent Worker also submitted that Mr Hunter’s “interpretation of the various rates of the AWA is of such little weight as to be excluded, as it is not suggested that at any point his interpretation was discussed with or communicated to the worker.”
Section 352(6) of the 1998 Act provides that fresh evidence or evidence in addition to or in substitution for the evidence received by the Arbitrator, may not be given on an appeal to the Commission except with the leave of the Commission.
The President’s Practice Direction Number 6 provides that:
In general, the Commission will allow new evidence to be given only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.
The admission of new or fresh evidence in an appeal has been considered by the Commission in a number of appeals: (cf. Christopher Michael McMahon v Anthony Lagana and Joseph Lavella t/as the Vessel “Nimble II” [2003] NSW WCC PD 22; Shipman Pty Ltd v Matters [2003] NSW WCC PD 19, and Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7). In summary, the factors that weigh in favour of the exercise of a discretion to admit fresh evidence in an appeal include the following:
·     if the request is refused, a substantial injustice will result to the party who seeks to have the evidence admitted: Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235;
·     the evidence could not have been discovered, with reasonable diligence, at the time of the original proceedings: Radnedge v Government Insurance Office of NSW (supra); Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80, and
·     the evidence is of such probative value that there is a high degree of probability that it would lead to a different outcome in the case: Greater Wollongong City Council v Cowan (1955) 93 CLR 435; Warr v Santos [1973] 1 NSWLR 432; Harrison v Schipp (2002) 54 NSWLR 738, and Akins v National Australia Bank (1994) 34 NSWLR 155.
Furthermore, an appeal to a Presidential member is not a continuation of the proceedings that took place before an Arbitrator. Section 352(5) of the 1998 Act provides that an appeal under this section is to be by way of review of the decision appealed against. While the Presidential member can receive further evidence by leave (but not routinely, even for later “clarification” purposes), the appeal is not a mere extension of the proceedings before the Arbitrator, nor is it a rehearing of the matter. The Presidential member is neither exercising nor re-exercising the power of the Arbitrator at first instance and is not proceeding de novo, in order to come to a fresh decision based on all the evidence available at a later time: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616. The Presidential member has a quite specific but limited role in reviewing the decision of an Arbitrator, and may confirm the Arbitrator’s decision, or may revoke or substitute a new decision where it is demonstrated and concluded that the original decision is affected by a legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172.
Clearly, the quantum of the worker’s entitlement to weekly compensation was at issue in the proceedings before the Arbitrator. The Appellant Employer was given numerous opportunities to place evidence before the Arbitrator that was in addition to evidence filed with its original Reply. No reason has been advanced for the failure to produce the evidence before the Arbitrator, that is now contained in the document of 12 May, 2003. A perusal of the Commission file reveals that:
·The Appellant Employer’s Reply was filed on 25 September, 2002 and the Appellant Employer indicated its intention in Part 4 to rely upon a statement of Mr Dave Hunter to “be filed and served in due course”.
·On 28 November, 2002 the Appellant Employer filed an unsigned statement made by Mr Hunter, dated November 2002.
·On 29 November, 2002 the Arbitrator issued ‘Directions by Consent’ allowing the Appellant Employer to file and serve affidavit evidence by 6 December, 2002 and make further written submissions by 13 December, 2002.
·On 5 December, 2002 a further statement by Mr Hunter was filed by the Appellant Employer with the Commission.
·On 13 December, 2002 the Appellant Employer filed with Commission 6 pages of written submissions.

The Appellant Employer has failed to establish any grounds to justify the admission of new evidence in this appeal and has provided nothing to explain why this particular statement of Mr Hunter could not have been obtained and submitted in the proceedings before the Arbitrator. Nor has the Appellant Employer demonstrated that it would suffer a substantial injustice if the statement were not admitted in the appeal.
In the circumstances, leave to admit into evidence on appeal, the statement of Mr Dave Hunter, dated 12 May, 2003, was refused by me on 27 August, 2003.

SUBMISSIONS

The Appellant Employer’s grounds of appeal may be summarised as follows:
Arbitrator’s decision pursuant to section 36
The Appellant Employer submits that the Arbitrator erred in calculating the weekly payment of compensation under section 36 of the 1987 Act. Specifically, it is submitted, that the Arbitrator was incorrect in finding that the worker’s “currently weekly wage rate” was $24.45 per hour for 56 hours per week.
The Appellant Employer agrees with the Arbitrator’s determination that the worker was employed under an Australian Workplace Agreement (AWA) and the AWA was an “award” for the purposes of section 42(8) of the 1987 Act. However, it maintains that the Arbitrator erred in having regard to a letter dated 31 January, 2001, from the Appellant Employer to the Respondent Worker, notifying him that his current hourly rate of pay would increase to $24.45. It states:
…the Arbitrator’s view of the Applicant’s interpretation is irrelevant and the decision must be made in accordance with the legislation and available documentation.
The Appellant Employer argues that the increase to $24.45 reflected the hourly roster rate plus the bonus payment under the Drilling and Exploration Industry (AWU) Award 1998 (the award used for the no-disadvantage test for the AWA), but in fact, the Respondent Worker’s base rate was $14.10 per hour.
The Appellant Employer states:
Employees employed pursuant to awards or Australian Workplace Agreements are often paid above award rates, but Section 36 of the Act clearly states that the current weekly wage rate in relation to a worker means the worker’s current weekly wage rate determined from time to time in accordance with Section 42, which refers to the ‘award’ rate.
It goes on to say that the Arbitrator agreed that the AWA falls within the definition of “award” under section 42(1)(a) of the 1987 Act, and further agreed that the base award rate is $14.10 per hour. However, the Arbitrator relied upon Lismore City Council v Garland (1992) 26 NSWLR 542 to justify his decision that the current weekly wage rate was $24.45 per hour. The Appellant Employer submits that this case refers to an industry allowance and that the hourly roster rate and bonus rate of pay, “...are not akin to ‘industry allowances’”. The Appellant Employer points to the following statement of His Honour Kirby P at 550:
It is an amount which must be paid as part of the base rate for the ordinary hours worked by the worker for the employer.
It is then submitted by the Appellant Employer:
Clearly however, the base rate is $14.10 and the ‘ordinary hours’ as indicated in section 10(b) of the AWA is [sic] 40 hours per week.
The Appellant Employer further argues that the Arbitrator erred in calculating the Respondent Worker’s current weekly wage rate on the basis of a 56 hour week. The AWA provided that the worker’s ordinary hours were 40 hours per week. Reliance is placed to some extent on the contents of the statement of Mr Dave Hunter, dated 12 May, 2003, which has been rejected as evidence in this appeal. Consequently, neither the contents of that document nor that part of the submission relating thereto, are taken into account. However, the Appellant Employer points to the decision in Lismore City Council v Garland (supra) and states:
Kirby P at 544…quotes Burke CCJ, the judge who dealt with the matter at first instance and which decision was upheld:
‘Burke CJ…decided that the worker’s ‘current weekly wage rate’ in Section 36 of the Act referred to the base rate ‘under the award in question.’
He went on:
‘A rephrasing of the whole lot of it would be simply, what is the minimum rate for a full week, what can a man get paid if he does 38 hours under the award?’
The Appellant Employer submits that this, together with 42(6) of the 1987 Act and Part 10 of the AWA means:
…only the ordinary 40 hours can be considered in determining the ‘current weekly wage rate’ and no other payments including special expenses because of the nature of the work or overtime payments cannot [sic] be considered…it does not appear that the Arbitrator can take into account the extra 16 hours worked by worker as overtime.
The Appellant Employer maintains the correct decision should have been an award by the Arbitrator of $564.00 per week, being $14.10 per hour for 40 hours. In the alternative, if it is accepted that the current weekly wage rate is $24.45 per hour, only the ordinary 40 hours per week can be taken into account pursuant to section 42(6) of the 1987 Act, and accordingly the rate payable during the periods is $978.00, being $24.45 per hour for 40 hours.
Arbitrator’s decision pursuant to section 38
The Appellant Employer submits that the Arbitrator erred in awarding the Respondent Worker $1281.30 per week under section 38 of 1987 Act, during periods where the Respondent Worker was partially incapacitated but the Appellant Employer failed to provide suitable employment. The Appellant Employer relies upon the submissions already made with respect to the current weekly wage rate and “…also relies upon the above arguments in order to establish that the additional 16 hours can not [sic] be included in calculation of the ‘current weekly wage rate’ pursuant to section 42(6).” The Appellant Employer submits that the correct weekly wage rate is $564-00 per week. However, it is further submitted: “If the Commission agrees with the Applicant’s submissions that the correct hourly rate is $24.45, then the Respondent submits that the correct rate under section 38 is $978.00 ($24.45 x 40 hours).”
The Appellant Employer further submits that the Arbitrator has misconstrued and misinterpreted section 38. According to the Appellant Employer, “both the Applicant and Respondent were in agreement that section 38(3)(b) did not apply and the correct application is section 38(3)(a).”
The Appellant Employer argues that as the correct weekly wage rate for the worker was $564.00 per week, the correct award under section 38, after 26 weeks, should have been $451.20 per week (being 80% of $564.00). “In the alternative, if the Commission accepts the Applicant’s argument that the current weekly wage rate is in fact $24.45, then the Respondent notes that only the 40 ‘ordinary’ hours may be included [see arguments above regarding section 42(6)]. 80% of the current weekly earnings of $978.00 ($24.45 x 40) is $782.40. Even if the Applicant’s arguments in full are accepted the worker would be entitled to a payment of 80% of the $1,281 (maximum weekly payment), this being $1,025.00).”
Arbitrator’s decision pursuant to section 40
The Appellant Employer submits that the Arbitrator incorrectly calculated the “average weekly earnings”, as defined in section 42(8), when awarding compensation under section 40. “The Arbitrator has calculated the average weekly earnings by obtaining the higher of the earnings at the time of the injury or at the time at which the relevant weekly payment of compensation is due. The Arbitrator however, was required by the Act to determine the average weekly earnings by looking at the 12 months before the injury or the 12 months before the time the weekly payment of compensation is due.”
The Appellant Employer submits that “the worker’s average wage rate for the 12 months pay prior to the accident was $58,046.27 and accordingly the ‘average weekly earnings’ are $1,116.27.”
The Appellant Employer seeks costs, or alternatively an order that each party should pay their own costs. “The Respondent [Appellant Employer] should not be punished by the fact that the Arbitrator has made an error in incorrectly construing sections 40 and 38(3) of the Act.”
The Respondent Worker’s submissions on the appeal may be summarised as follows:
Arbitrator’s decision pursuant to section 36
It is not conceded that the correct decision has not been made by the Arbitrator, and that various parts of the Act have been misconstrued.
It is not disputed that the Arbitrator agreed with the Appellant Worker’s submissions, as detailed at submission 4A of the Appellant Worker’s submissions on appeal; nor that the Arbitrator did not accept the Respondent Worker’s case that the Workplace Agreement had no application in the current dispute, nor that the Arbitrator accepted that the Respondent Worker was bound by the AWA.
The Respondent Worker submits that the Arbitrator’s determination that the worker was paid $24.45 per hour for 56 hours per week was a finding of fact that was supported by the evidence. He argues that the rate of $24.95 [this should obviously read $24.45] per hour was “the Applicant’s ordinary rate of pay an hour on and from 31 January, 2001”, that up to the date of injury he was always paid at that rate, and that this rate was supported by documents from the Appellant Employer’s file, wage records and the worker’s evidence. No evidence was tendered to explain why the figure of $24.45 should not be accepted. “For the Arbitrator to accede to the Appellant’s submission would be to accept a rate at which the worker had never been paid, as established on the Respondent’s own pay records.”
The Respondent Worker does not agree that the base award rate is $14.10 per hour. He submits: “The AWA prescribes a base wage rate of $14.10 per hour. This was not the worker’s ordinary rate of pay nor was it his current weekly wage rate. Section 42(6) prescribes the matters not to be taken into account in determining the worker’s current weekly earnings. The Appellant is suggesting that the terminology, base wage rate is interchangeable with the definition of ordinary rate contained in Section 42 and by inference that the base rate is the ‘current weekly wage rate’. This is misconceived – the worker’s ordinary rate is that which he ordinarily received, on the findings of the Arbitrator, in accordance with the AWA and correspondence from his employer of $24.45 per week. The case of Lismore City Council v Garland (1992) 26 NSWLR 542 to which the Arbitrator made reference clearly has application to this case.”
It is not conceded that the hourly roster rate is established taking into account the basic wage, ordinary hours averaging 40 per week, rostered hours, public holidays, etc., as submitted by the Appellant Employer.
The Respondent Worker argues that he was not employed to work 40 hours per week, and that the Appellant Employer’s own records and rostering establish that the Respondent Worker was employed to work a roster of 56 hours per week. The Arbitrator found that the worker’s “ordinary hours” were 56 hours per week and this was a finding of fact supported by the evidence. The Respondent Worker maintains that “Section 42(6) does nothing to prevent (this) finding by the Arbitrator.” The Appellant Employer’s submission that the Arbitrator cannot take into account the extra 16 hours worked by the Respondent Worker, as overtime “…fails to take into account the evidence, the findings in Garland and the actual hours that the worker was required to work and for which he was paid. Pursuant to Clause 9 of the AWA – sub-paragraph (a) clearly cannot be reconciled with sub-paragraph (b). Alternatively, the Appellant/Employer has varied the AWA by requiring the Respondent/Worker to work an average of 56 hours per week, each week. With respect, Cobar which is a town of some 6000 to 7000 people cannot be categorized as, ‘remote or semi-remote mine-site’.”
The Respondent Worker submits that the issue is not the Appellant Employer’s assertion of a base wage rate under the AWA, but rather it is the Respondent Worker’s ordinary weekly earnings in the employment of the Respondent Worker, which are set out in the Appellant Employer’s own pay records. Section 42(6) of the 1987 Act should not be given the meaning asserted by the Appellant Employer. Moreover, it is submitted that there is no evidence in the AWA or elsewhere to establish an overtime rate, and that the Respondent Worker is entitled to be compensated in accordance with his current weekly wage rate, by reference to his ordinary earnings. It is submitted that the Arbitrator has made findings of fact in accordance with the evidence, in this regard. The submissions put by the Appellant Employer in relation to the determination of the Arbitrator, pursuant to sections 36 and 38 of the 1987 Act, in defining “current weekly earnings” are not conceded and the Arbitrator’s determination should stand.
Arbitrator’s decision pursuant to section 38
The Respondent Worker does not concede the Appellant Employer’s assertions and calculations in relation to section 38 of the 1987 Act, but does concede that the “proper amount payable under Section 38 should be calculated in accordance with Section 38(3) sub-paragraph (a), i.e. 80% of $1,369.20 = $1,095.36.” He submits: “The adjustment of the correct rate pursuant to Section 38, as above, can be amended in accordance with the Slip Rule provisions and by consent of the parties hereto.”
Arbitrator’s decision pursuant to section 40
The Respondent Worker submits that the Arbitrator has made a finding of fact, supported on the evidence that his probable earnings are in accordance with section 40(2), and in accordance with the evidence upon which his findings of fact are based.
Application for costs
The Respondent Worker submits that there is no basis for the Appellant Employer to seek costs from him. However, the Respondent Worker states that he will seek an order for costs of the proceedings before the Arbitrator and on appeal, and states that he reserves his right to make further submissions in that regard, once the various issues on appeal are determined. The Appellant Employer, as the Respondent in the proceedings before the Arbitrator, was ordered by the Arbitrator to pay the Respondent Worker’s [Applicant’s] costs of those proceedings, “as agreed or assessed”.

DISCUSSION AND FINDINGS

Liability for the payment of workers compensation is not disputed in this appeal. The issues that are in dispute relate to (a) quantum of compensation to be paid, (b) the basis for the amounts of compensation to be paid, and (c) some of the calculations made by the Arbitrator in arriving at amounts to be paid.

Current weekly wage rate and the award of compensation under section 36

Section 36 of the 1987 Act provides:
36 Weekly payments during total incapacity – first 26 weeks (cf former s9(1)(a))
(1)The weekly payment of compensation to an injured worker in respect of any period of incapacity for work during the first 26 weeks of incapacity shall be the amount of the worker’s current weekly wage rate.
(2)In this section:
Current weekly wage rate, in relation to a worker, means the worker’s current weekly wage rate determined from time to time in accordance with section 42.
Relevant provisions of section 42 of the 1987 Act are as follows
42 Current weekly wage rate (cf former s 9(8) – (13))
(1) Subject to this section, a reference in this Division to the current weekly wage rate of a worker, being a worker who is incapacitated for work and who, immediately before being incapacitated:
(a)was remunerated under an award fixing or providing for the fixing of a rate for the weekly or longer period…is, at any time during the incapacity, a reference to the rate of remuneration under that award at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated,
…
(6) In determining a worker’s current weekly wage rate in accordance with subsection (1)(a)…any amount paid or payable to the worker:
(a)in respect of shift work, overtime or other penalty rates,
(b)under the terms of the worker’s employment in excess of the ordinary rate fixed by any award for the work performed by the worker, or
(c)to cover special expenses incurred by the worker because of the nature of the worker’s employment,
is, except in so far as the regulations otherwise provide, to be disregarded.
Section 35 of the 1987 Act provides in part:
35 Maximum weekly payment
(1) The maximum weekly payment of compensation to an injured worker in respect of any period of total or partial incapacity for work shall not in any case exceed $1,000.
The Arbitrator correctly found that the current weekly wage rate pursuant to section 36 of the 1987 Act is to be determined by reference to section 42 of that Act, subject to the maximum weekly payment imposed by section 35 of the Act. Notwithstanding the breadth of the dispute that was before the Arbitrator, the Respondent Worker in the instant proceedings, does not dispute but “notes”, the Arbitrator’s findings that he was employed under an Australian Workplace Agreement; that the Agreement attracted an approval notice of the Employment Advocate on 7 June, 2001 and was duly given Agreement number H30257995; that the Agreement is an “award” pursuant to section 42(8) of the 1987 Act; that for the purpose of determining the current weekly wage rate regard must be had to that section; that a “base wage rate per hour” of $14.10 is stipulated in the agreement, and that the Arbitrator did not accept the Respondent Worker’s submission put to him that the Australian Workplace Agreement had no application, but was bound by it. The dispute in this appeal concerns the correct current weekly wage rate and how that is to be calculated.
The Arbitrator rejected the Appellant Employer’s contention that the $14.10 base wage rate per hour should be the sole determinant in establishing the current weekly wage rate and that it should be determined “by reference to an hourly rate of pay fixed at $24.45 per hour which is the applicable wage rate at the time of the Applicant’s injury.” The Arbitrator set out his reasons, as follows:
(1)The “ordinary” pay rate of the worker in the Applicant’s case was understood to be $24.45 per hour. The Respondent’s letter to the Applicant dated 31 January 2001 clearly indicates to the Applicant that his ordinary weekly wage rate is to be determined on the basis of $24.45 per hour regardless of other circumstances.
(2)As the Applicant pointed out in his submissions, an industry allowance can form part of the ordinary weekly earnings of a worker. The Applicant quoted from the judgment of His Honour, Justice Kirby, before the NSW Court of Appeal in Lismore City Council v Garland (1992) 26 NSWLR 542 at 550
‘I now return to the simple question which the stated case poses. I would have no doubt that the industry allowance provided for in the award forms part of the “current weekly wage rate” of the worker as that expression would be understood in ordinary English. It is an amount which must be paid as part of the base rate for the ordinary hours worked by the worker for the employer. This is clearly the way the employer itself regards the allowances demonstrated by the agreed fact that the pay docket of the worker contains no mention of the industry allowance. It is simply subsumed in the wage rate of the worker. It does not vary from week to week by reference to features peculiar to the hours worked or varying nature of the conditions of work.
(3)In the same case the Court considered the exclusory provisions of s42(6) of the Act and noted at 551 that ‘the policy which lay behind the introduction of the present approach to the requirements under s 36 of the Act [is]… the worker should... be paid the ordinary rate which would have been paid as wages had there been no compensable injury.

The decision in Lismore City Council v Garland (1992) 26 NSWLR 542; (1992) NSWCCR 86, provides an exception to the general restriction imposed by section 42(6)(b) of the 1987 Act in that an industry allowance, subsumed into ordinary remuneration for a class of workers, is regarded as a part of the “ordinary rate fixed by any award”. The issue in the instant matter is whether the amount paid to the Respondent Worker, that is in excess of the base wage rate of $14.10 fixed by the applicable Australian Workplace Agreement, is in a similar sense to an industry allowance, a part of the ordinary rate of the worker. In Lismore City Council v Garland (supra), Kirby P said:
The exclusion under par (a) of s 42(6) requires moneys received for time worked beyond normal hours (shift-work, overtime and other penalty rates) to be excluded. The exclusion under par (c) requires ‘special expenses’ referable to the nature of the worker’s employment to be disregarded. It was not suggested that the industry allowance fell within either of these paragraphs. Each of them imports peculiarities of time and circumstances which are not features of the industry allowance. It is simply an unvarying amount paid to each and every worker in the group specified. There are many other rates and allowances provided by industrial awards for special circumstances which vary from time to time. These include attendance money, board and lodging, allowances for call-back, camping allowance, clothing allowances, district allowances, hot place allowances, insulation allowances, meal allowances, traveling allowances and zone allowances, to name but a few: cf R v Bleby Olsson and Stanley; Ex Parte South Australian Public Service Board (No 1) (Teachers Case) (1974) 9 SASR 320 at 327. Depending on the circumstances these, or some of them, may be disregarded pursuant to s 42(6). However, the universal industry allowance provided for the large variety of classifications of many groups of workers under the instant award does not fall in the same class. For the worker, such allowance was part of his ordinary rate fixed by the award for the work performed by him. It was not “in excess” of such rate. It did not therefore have to be disregarded in accordance with the requirements of s 42(6).
His Honour went on to say:
If, as I think, the phrase “ordinary rate” in s 42(6) is ambiguous in its application to this allowance, I would reach the conclusion I have assisted by my understanding of the policy which lay behind the introduction of the present approach to the requirement under s 36 of the Act that, during the first twenty-six weeks or incapacity, the worker should be paid his or her “current weekly wage rate” as defined by s 42. That policy I take to be that the worker should, during such incapacity, be paid the ordinary rate which would have been paid as wages had there been no compensable injury. Such “ordinary rate” in the case of this worker included his industry allowance. It was part of his base rate. The fact that it did not provide a “base” for the additional purpose of calculating overtime and penalty rates is irrelevant because such rates must be disregarded by s 42(6)(a) of the Act.
In the same case, Mahoney J said that section 42 of the 1987 Act, insofar as it was relevant in that case, provides that, subject to the section, a reference to the current weekly wage rate of a worker who was, immediately before being incapacitated, remunerated under an award, is at any time during the incapacity, a reference to the rate of remuneration under that award at that time, for 1 week in respect of the work being performed by the worker, immediately before being incapacitated: s 42(1)(a) of the 1987 Act. He went on to say:
Two questions therefore arise: whether this industry allowance is to be included in calculating “the rate of remuneration under” the award to which the worker was entitled immediately before the injury; and whether there is otherwise in s 42 any provision which excludes the industry allowance for that purpose. In calculating “the rate of remuneration under that award” within s42(1)(a) it is, in my opinion, clear that the industry allowance is to be taken into account. Indeed, as the argument before this Court progressed, I do not think that that was seriously in question. It has long been recognized that “remuneration” is a wider term than “salary”: see Stroud’s Judicial Dictionary, 3^rd ed, vol 3, “remuneration” at 2531. In Moxham v Henderson [1981] 2 NSWLR 282, Hope JA, in a judgment with which Glass JA and I agreed, said (at 285-287) that ‘remuneration’ is synonymous with ‘earnings’ and may include, for example, tips or the value of things such as board and lodging provided by an employer.
His Honour noted however, that under the specific terms of the relevant award, a person of the worker’s classification was entitled to the benefit of the industry allowance. The argument in the case suggested that s 42(6)(b) of the 1987 Act operated to exclude the industry allowance from the current weekly wage rate. The argument was that the industry allowance was an amount payable in excess of the ordinary rate fixed by the award. His Honour, with whom Sheller JA agreed, did not accept that argument. He said that the industry allowance “is expressed to be payable ‘per week’ and is a ‘rate fixed by’ the award. And, in the relevant sense, it is an ‘ordinary rate’. As the award stipulated and as the stated case accepts, it was ‘payable to the applicant and all outdoor employees of the respondent Council below the classification of ganger grade 4 covered by the said award.’ The industry allowance was therefore part of the ‘ordinary fixed rate by’ the award for the work performed by the worker. It was therefore not excluded by s 42 (6).”
The Australian Workplace Agreement that was signed by both parties in the instant matter, sets out in clause 10(a), the rates of pay that apply to the various classifications of work, being the base wage rate per hour, the hourly roster rate and the bonus payment per hour. At clause 10(b) it itemizes a range of factors that were taken into account in setting these rates. At clause 10(c) it states: The rates of pay provided for in (a) above shall be increased in line with any increases to the ‘Driller’ classification contained within the Drilling and Exploration Industry (AWU) Award (‘the Award’) which apply after the 1^st July, 1999.” These rates have general application to particular classifications of workers and were not “one-off” arrangements for the Respondent Worker. They do not fall within the range of payments set out in section 42(6)(a). Having regard to the decision in Lismore City Council v Garland, and the reasons stated in that case, it is my view that the base wage per hour, the hourly roster rate and the bonus payment per hour have the same standing as the industry allowance in that case, that is, together they comprise and are subsumed into, the ordinary rate of remuneration routinely paid to workers in a particular classification under the terms of an Australian Workplace Agreement, and in line with the Award specified in that Agreement. Consequently, they are not excluded by the operation of s42(6)(b) or (c) of the 1987 Act. In a letter dated January 31, 2001 the Appellant Employer gave notice of a change in pay rate consequent upon what was effectively, a promotion to the next level of the same job, that is, “Driller”. However, the same considerations apply. The rates have general application across the classification of Driller Level 2. The base wage per hour, the hourly roster rate and the bonus payment per hour together, are integral to and were subsumed into, the ordinary rate of remuneration routinely paid to the Respondent Worker and others at Level 2. This treatment is reflected in the payslip of the Respondent Worker and no distinction is made between the three elements that make up his ordinary remuneration. This is the same treatment as for the industry allowance in Lismore City Council v Garland (supra):
This is clearly the way the employer itself regards the allowance as demonstrated by the agreed fact that the pay docket of the worker contains no mention of the industry allowance. It is simply subsumed in the wage rate of the worker. It does not vary from week to week by reference to features peculiar to the hours worked or varying nature of the conditions of the work.
Clause 9(a) of the Australian Workplace Agreement, provides: “You will be required to work in a roster which is determined as appropriate to meet the overall production requirements of each project. For the purpose of establishing rates of pay the ‘ordinary hours’ of work shall be deemed to average 40 hours per week.” Notwithstanding that a deeming average of 40 hours per week is agreed as (and limited to) the basis for establishing rates of pay, the fact is, as found by the Arbitrator on the evidence before him, that the Respondent Worker was actually employed by the Appellant Employer to work a roster of 56 hours per week, at the relevant time. These were his ordinary hours, as a matter of fact, regardless of the basis used for establishing “rates” of pay. On my reading of the Australian Workplace Agreement and on a consideration of the evidence, including the evidence put forward by the Appellant Employer, the Arbitrator’s conclusion in this regard was soundly based.
In my view, there is no evidence of error by the Arbitrator in terms of his reasoning, as to the rate of and basis for, the weekly payment of compensation to the Respondent Worker, pursuant to section 36 of the 1987 Act, and I find accordingly.
Award under section 38
Section 38 of the 1987 Act provides for compensation of a partially incapacitated worker who is not suitably employed. Section 38 provides:
38 Partially incapacitated workers not suitably employed – special initial payments while seeking employment
(1) Entitlement. If:
(a) a worker is partially incapacitated for work as a result of an injury, and
(b) the worker is not suitably employed during any period of that partial incapacity for work,
the worker is to be compensated in accordance with this section during each such period as if the worker’s incapacity for work were total.
(2)Maximum period of entitlement. The maximum total period for which the worker may be so compensated is 52 weeks.
(3)Rate of compensation. When a worker is so compensated, the compensation is payable at the relevant rate prescribed by this Act for the period of incapacity concerned. However, after the first 26 weeks of incapacity, the rate is the greater of the following rates:
(a) 80% of the worker’s current weekly wage rate(that is, 80% of the rate prescribed by this Act for the first 26 weeks of incapacity),
(b) the statutory indexed rate (that is, the rate prescribed by this Act for a period of incapacity after the first 26 weeks).
(4)Worker to seek suitable employment. Compensation is not payable to a worker in accordance with this section during any period unless the worker is seeking suitable employment during that period (as determined in accordance with section 38A).”
Both parties agreed that the order for payment of compensation to the Respondent Worker should be made in accordance with section 38 (3)(a) of the 1987 Act, and not 38 (3)(b) as applied by the Arbitrator. I agree. The statutory indexed rate does not apply (even on the calculations made by the Arbitrator). The Arbitrator has misconstrued the section in arriving at his conclusion. However, his calculation of 56 x $24.45 = $1369.20 is correct, subject to the further calculation required by section 38(3)(a) of the 1987 Act and the limit imposed by section 35 of that Act. Having regard to my earlier findings in relation to the rate of and basis for, payment of weekly compensation, I am in agreement with the Respondent Worker’s calculation $1369.20 x 80% = $1095.36, but limited by section 35, as stated.
Average weekly earnings and award under section 40
Section 40 (1) and (2) of the 1987 Act provide for weekly payments during partial incapacity:
40 Weekly payments during partial incapacity – general (cf former ss 9, 11)
(1)Entitlement. The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.
(2)Calculation of reduction in earnings of worker – general. The reduction in the worker’s weekly earnings is (except as provided by this section) the difference between:
(a) the weekly amount which the worker probably would have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment (but not exceeding $1,000), and
(b) the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury (but not exceeding $1,000).
“Average weekly earnings” is defined in section 42(8) of the 1987 Act, as follows:
average weekly earnings, in relation to a worker, means the average weekly earnings of the worker determined in accordance with section 43 during the appropriate period before whichever of the following times produces the higher average weekly earnings:
(a)   the time of the injury concerned,
(b)   the time at which the relevant weekly payment of compensation is due,
with the determination under paragraph (b) made on the assumption that the worker has been earning the wage or salary which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or some comparable employment.
Section 43 of the 1987 Act relevantly provides:
43    Computation of average weekly earnings (cf former s 14)
(1)For the purposes of the provisions of this Act relating to “earnings” and “average weekly earnings” of a worker, the following rules shall be observed:
(a)Average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the worker was being remunerated…
With respect, I am unable to agree with the Appellant Employer’s submission that the Arbitrator “has calculated the average weekly earnings by obtaining the higher of the earnings at the time of the injury or at the time at which the relevant weekly payment of compensation is due” rather than, as the Act requires by “looking at the 12 months before the injury or the 12 months before the time the weekly payment of compensation is due.” At page 18 of his Statement of Reasons for Decision the Arbitrator said: “In the case of the Applicant, the worker had been in the employment of the Respondent for approximately a year and a half prior to the injury on 22 February 2002. The Applicant had been promoted to a higher pay rate of $24.45 per hour from 31 January 2001 and consequently it was possible to calculate the current weekly wage rate, being the sum of $1369.20, by applying the calculations discussed earlier.” On my reading, the Arbitrator has made his order in accordance with his findings, based on the evidence before him.

DECISION

The matter before the Arbitrator was quite detailed and required a good deal of consideration. However, this appeal was limited to the issues as summarized in paragraph 7, above.
In my view, the Arbitrator correctly applied the relevant principles found in the decision in Lismore City Council v Garland (supra). The phrase “base wage rate per hour” is used in the Australian Workplace Agreement, but it must be considered in a factual, not merely a nominal context, that is, whether this element, along with the hourly rate roster and the bonus payment per hour, together “was part of his ordinary rate fixed by the award for the work performed by him. It was not ‘in excess’ of such rate. It did not therefore have to be disregarded in accordance with the requirements of s42(6)”: per Kirby P. The combination of these elements require the same treatment as the industry allowance in Garland for the same reasons that are set out in that case. Moreover, the treatment of the industry allowance and the way it was paid in Garland, by the employer, was the same as the treatment of these three elements and the payment of remuneration, by the Appellant Employer, in the instant case. Similarly, it is clear on the evidence that the Respondent Worker was employed in fact, to work a 56 hour roster, as claimed by him. I agree with the decision of the Arbitrator with regard to the rate of and basis for, the weekly payment of compensation to the Respondent Worker, pursuant to section 36 of the 1987 Act, and confirm his order number 1.
As stated above, both parties agree that the order for payment of compensation to the Respondent Worker should have been made in accordance with section 38(3)(a) of the 1987 Act, and not section 38(3)(b), as applied by the Arbitrator. I agree with the parties in this regard, and for the reasons outlined in paragraph 54, I revoke the Arbitrators’s order number 2 and make a new order in lieu thereof, as follows:
The Appellant Employer is to pay to the Respondent Worker, pursuant to section 38 of the 1987 Act, the sum of $1095.36 per week, subject to the provisions of section 35 of that Act, during such periods where the Respondent Worker was partially incapacitated, but the Respondent failed to provide suitable employment.
As stated in paragraph 57, I do not agree with the Appellant Employer’s view that the Arbitrator has calculated the average weekly earnings of the Respondent Worker, on the wrong basis, for the purposes of section 40 of the 1987 Act. Having agreed with the Arbitrator’s earlier findings in terms of the relevant bases for and payment of, compensation, I confirm his orders in that regard.

COSTS

The Appellant Employer has sought costs or in the alternative that each party pay their own costs, and has submitted that it “should not be punished by the fact that the Arbitrator has made an error in incorrectly construing sections 40 and 38(3) of the Act.” In response, the Respondent Worker has submitted: “there is no basis for the Appellant to seek costs from the worker. The Respondent/Worker seeks costs of the proceedings before the Arbitrator and on appeal. The Respondent/Worker reserves his right to make further submissions in that regard once the various issues on appeal are determined.”
The appeal has been unsuccessful and costs fall to be determined in accordance with section 345 of the 1998 Act. That section provides, relevantly, that:
345Costs Penalties Where Appeal Unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)If the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b)If the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1000 or such other amount, as may be prescribed by the Regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a) the insurer’s costs on the appeal, and
(b)the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.

The Appellant Employer seeks to avoid costs by reason of errors that it submits, were made by the Arbitrator. There were three substantive issues on foot in this appeal and the Appellant Employer was unsuccessful, in relation to all except the one issue in which the Arbitrator was found to be in error. The appeal was also unsuccessful in terms of section 345, above. In the circumstances, the Appellant Employer is ordered to pay the Respondent Worker’s costs of this appeal, as agreed or assessed.

Gary Byron
Deputy President

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

Registrar

Date:

[2003] NSWWCCPD 40

19 December 2003